Part 16

Blood-revenge is regarded not only as a right, but as a duty. We are told that the holiest duty a West Australian native is called on to perform is that of avenging the death of his nearest relation. "Until he has fulfilled this task, he is constantly taunted by the old women; his wives, if he be married, would soon quit him; if he is unmarried, not a single young woman would speak to him; his mother would constantly cry, and lament she should ever have given birth to so degenerate a son; his father would treat him with contempt, and reproaches would constantly be sounded in his ear."[19] Among the tribes of Western Victoria "a man would consider it his bounden duty to kill his most intimate friend for the purpose of avenging a brother's death, and would do so without the slightest hesitation."[20] In his description of the Eskimo about Behring Strait, Mr. Nelson states that blood-revenge is considered a sacred duty among all the Eskimo, a duty incumbent on the nearest male relative; if the son of the murdered man is an infant, it rests with him to seek revenge as soon as he attains puberty.[21] Among the Dacotahs "no one can escape this law of retaliation; public opinion would brand with disgrace whoever fled under such circumstances."[22] The Brazilian aborigines {480} consider it a moral obligation, a matter of conscience, for a son, a brother, or a nephew, to avenge the death of his relative.[23] Speaking of the Guiana Indians, Sir E. F. Im Thurn observes that, "in all primitive societies where there are no written laws and no supreme authority to enforce justice, such vengeance has been held as a sacred duty."[24] Confucius affirmed, in the strongest and most unrestricted terms, the duty of avenging the murder of a father or a brother.[25] In Japan "the man who was weak enough not to try to put to death the murderer of his father or his lord, was obliged to flee into hiding; from that day, he was despised by his own companions."[26] The Lord said to Moses:--"The revenger of blood himself shall slay the murderer; when he meeteth him, he shall slay him."[27] A similar rule, as we have seen, is laid down in the Koran.[28] The idea that blood-revenge is a sacred duty incumbent on the kindred of the deceased was probably held by all so-called Aryan peoples.[29] It still prevails in Albania,[30] Montenegro,[31] and Corsica. "Not to take revenge is considered by the genuine Corsicans as degrading. . . . Any one who shrinks from avenging himself . . . is allowed no rest by his relations, and all his acquaintances upbraid him with pusillanimity."[32]

[Footnote 19: Grey, _Journals of Expeditions of Discovery in North-West and Western Australia_, ii. 240.]

[Footnote 20: Dawson, _Australian Aborigines_, p. 71.]

[Footnote 21: Nelson, 'Eskimo about Bering Strait,' in _Ann. Rep. Bur. Ethn._ xviii. p. 292 _sq._]

[Footnote 22: Domenech, _Seven Years' Residence in the Great Deserts of North America_, ii. 338.]

[Footnote 23: von Martius, _Beiträge zur Ethnographie Amerika's_, i. 128.]

[Footnote 24: Im Thurn, _Among the Indians of Guiana_, p. 329 _sq._]

[Footnote 25: Legge, _Chinese Classics_, i. 111. Douglas, _Confucianism and Taouism_, p. 145.]

[Footnote 26: Dautremer, _loc. cit._ p. 83. _Cf._ Griffis, _Corea_, p. 227 (Coreans).]

[Footnote 27: _Numbers_, xxxv. 19.]

[Footnote 28: For modern Arabs, see Burckhardt, _Notes on the Bedouins and Wahábys_, p. 313 _sq._; Blunt, _Bedouin Tribes of the Euphrates_, ii. 207.]

[Footnote 29: Geiger, _op. cit._ ii. 32 (Avesta people). Leist, _Alt-arisches Jus Gentium_, p. 422. _Idem_, _Græco-italische Rechtsgeschichte_, p. 323 _sqq._ de Valroger, _op. cit._ p. 472 (Celts). Nordström, _Bidrag till den svenska samhälls-författningens historia_, ii. 229; Stemann, _Den Danske Retshistorie indtil Christian V.'s Lov_, p. 574; Keyser, _Efterladte Skrifter_, ii. pt. ii. 95; Rosenberg, _Nordboernes Aandsliv_, i. 487 (Teutons). Miklosich, 'Die Blutrache bei den Slaven,' in _Denkschriften der kaiserl. Akademie d. Wissensch. Philos. histor. Classe_, Vienna, xxxvi. 127 _sqq._ Ewers, _Das alteste Recht der Russen_, p. 50 _sq._]

[Footnote 30: Hahn, _Albanesische Studien_, i. 176.]

[Footnote 31: Popovi['c], _op. cit._ p. 69. Kohl, _op. cit._ i. 409, 413 _sqq._ Miklosich, _loc. cit._ p. 145.]

[Footnote 32: Gregorovius, _op. cit._ i. 180 _sq._ For other instances of blood-revenge as a duty, see Boas, 'Central Eskimo,' _Ann. Rep. Bur. Ethn._ vi. 582; Petroff, 'Report on Alaska,' in _Tenth Census of the United States_, p. 158 (Atkha Aleuts); Kohler, in _Zeitschr. f. vergl. Rechtswiss._ vii. 376 (Papuans of New Guinea); Modigliani, _Viaggio a Nías_, p. 471; Bowring, _Visit to the Philippine Islands_, p. 177; Macpherson, _Memorials of Service in India_, p. 82 (Kandhs); Radde, _Die Chews'uren_, p. 115; von Haxthausen, _Transcaucasia_, p. 406 _sqq._ (Ossetes); Munzinger, _Die Sitten und das Recht der Bogos_, p. 87; Mungo Park, _Travels in the Interior of Africa_, p. 13 (Feloops bordering on the Gambia); Leuschner, in Steinmetz, _Rechtsverhältnisse von eingeborenen Völkern in Afrika und Ozeanien_, p. 23 (Bakwiri); _ibid._ p. 49 (Banaka and Bapuku); Nicole, _ibid._ p. 132 (Diakité-Sarrakolese); Lang, _ibid._ p. 256 _sq._ (Washambala); Kraft, _ibid._ p. 292 (Wapokomo); Viehe, _ibid._ p. 311 (Ovaherero); Rautanen, _ibid._ p. 341 (Ondonga); Sorge, _ibid._ p. 418 (Nissan Islanders in the Bismarck Archipelago).]

{481} The duty of blood-revenge is, in the first place, regarded as a duty to the dead, not merely because he has been deprived of his highest good, his life, but because his spirit is believed to find no rest after death until the injury has been avenged.[33] The disembodied soul carries into its new existence an eager longing for revenge, and, till the crime has been duly expiated, hovers about the earth, molesting the manslayer or trying to compel its own relatives to take vengeance on him.

[Footnote 33: See Kohler, _Shakespeare vor dem Forum der Jurisprudenz_, p. 131 _sq._; Steinmetz, _Ethnol. Studien zur ersten Entwicklung der Strafe_, i. 291 _sqq._; _Idem_, _Rechtsverhältnisse_, p. 49 (Banaka and Bapuku); Nicole, _ibid._ p. 132 (Diakité-Sarrakolese); Lang, _ibid._ p. 257 (Washambala).]

According to Yakut beliefs, a person who is murdered becomes a _yor_, that is, his ghost never comes to rest.[34] The Cheremises imagine that the spirits of persons who have died a violent death cause illness, especially fever and ague.[35] The Saoras of India seem to have most fear of the spirits of those who have died violent deaths.[36] The Burmese believe that persons who meet a violent death become "nats "and haunt the place where they were killed.[37] The Hudson Bay Eskimo regard the island of Akpatok as tabooed since the murder of part of the crew of a wrecked vessel, who camped on that island; "not a soul visits that locality lest the ghosts of the victims should appear and supplicate relief from the natives, who have not the proper offerings to make to appease them."[38] The Omahas believe that the spirits of those who have been killed reappear after death, their errand being "to solicit vengeance on the perpetrators of the deed."[39] According to Genesis, the voice of {482} blood shed cried for vengeance until the murderer was punished.[40] A similar notion prevailed among the Bedouins, hence they thought they might escape the taking of revenge by covering up the blood with earth.[41] One of the most popular ghost stories in folk-tales is that which treats of the ghost of a murdered person flitting about the haunts of the living with no gratification but to terrify them.[42] According to Rohde, this belief was in full force at Athens in the fifth and fourth centuries before Christ.[43] Aeschylus attributes an Erinys to the heinous crime of a man's neglecting his duty as avenger of blood[44]--in other words, the soul of the slain turned its anger against the neglectful relative. Traces of the same belief still survive in various parts of Europe.[45] In Wärend, in Sweden, the people maintain that the unsatisfied ghost of a murdered man visits his relatives at night, and disturbs their rest; and it was an ancient custom among them that, if the murderer was not known, the nearest relation of the dead, before the knell began, went forward to the corpse and asked the dead himself to avenge his murder.[46]

[Footnote 34: Sumner, in _Jour. Anthr. Inst._ xxxi. 101.]

[Footnote 35: Abercromby, _Pre- and Proto-historic Finns_, i. 168 _sq._]

[Footnote 36: Fawcett, in _Jour. Anthrop. Soc. Bombay_, i. 59.]

[Footnote 37: Schway Yoe, _The Burman_, i. 286.]

[Footnote 38: Turner, 'Ethnology of the Ungava District,' in _Ann. Rep. Bur. Ethn._ xi. 186.]

[Footnote 39: James, _Expedition from Pittsburgh to the Rocky Mountains_, i. 267.]

[Footnote 40: _Genesis_, iv. 10.]

[Footnote 41: Jacob, _Leben der vorislâmischen Beduinen_, p. 146. _Cf._ Schwally, _Leben nach dem Tode_, p. 52 _sq._]

[Footnote 42: See Dyer, _The Ghost World_, p. 65 _sqq._; Andree, _Ethnographische Parallelen_, p. 80 _sqq._]

[Footnote 43: Rohde, _Psyche_, p. 240. _Cf._ _Idem_, 'Paralipomena,' in _Rheinisches Museum für Philologie_, 1895, p. 19 _sq._; Schmidt, _Ethik der alten Griechen_, ii. 125 _sqq._]

[Footnote 44: Aeschylus, _Choephori_, 283 _sqq._ _Cf._ _ibid._ 400 _sqq._; Plato, _Leges_, ix. 866.]

[Footnote 45: Dyer, _op. cit._ p. 68 _sqq._ Thorpe, _Northern Mythology_, ii. 19 _sq._]

[Footnote 46: Hyltén-Cavallius, _Wärend och Wirdarne_, ii. 274; i. 473.]

From one point of view, blood-revenge is thus a form of human sacrifice. Sometimes it even formally bears a strong resemblance to certain other human sacrifices which are offered to the dead. Among some Queensland tribes, when the assassin has been caught red-handed, the slayer and slain are buried together in the same grave;[47] and among the ancient Teutons the avenger by preference slew the culprit at the feet of the murdered man, or at his tomb.[48] Blood-revenge also resembles other kinds of human sacrifice so far that it serves as a safeguard for the sacrificer--in this case the avenger, who would otherwise expose himself to the persecutions of the revengeful spirit of the dead.

[Footnote 47: Roth, _Ethnological Studies among the North-West-Central Queensland Aborigines_, p. 165.]

[Footnote 48: Wilda, _Strafrecht der Germanen_, pp. 170, 692.]

But the practice of blood-revenge is not exclusively {483} based on a desire to avenge the injury done to a fellow-creature and to gratify the angry passion of his soul. The act which caused his death is at the same time an injury inflicted upon the survivors. Hence, in many cases, a murder committed within the family or kin is left unavenged.[49] Among the Iroquois, says Loskiel, any one who has murdered his own relative escapes without much difficulty, since the family, who alone have a right to take revenge, do not choose to weaken their influence by depriving themselves of another member besides the one whom they have already lost.[50] Again, when the murderer belongs to an extraneous family, the injury inflicted on the relatives of the murdered man suggests not only revenge, but reparation.

[Footnote 49: Steinmetz, _Ethnologische Studien zur ersten Entwicklung der Strafe_, ii. 159 _sqq._ Mauss, 'La religion et les origines du droit pénal,' in _Revue de l'histoire des religions_, xxxv. 44. Kovalewsky, 'Les origines du devoir,' in _Revue internationale de Sociologie_, ii. 86. _Cf._ Seebohm, _Tribal Custom in Anglo-Saxon Law_, pp. 30, 42 (Welsh); Robertson Smith, _Religion of the Semites_, p. 420; _Idem_, _Marriage and Kinship in early Arabia_, p. 25. Among the Jbâla of Northern Morocco blood-revenge is taken for the killing of a cousin, but not for the killing of a brother.]

[Footnote 50: Loskiel, _History of the Mission of the United Brethren among the Indians in North America_, i. 16.]

The taking of life for life may itself, in a way, serve as compensation. It seems that, in some cases, the blood of the slain homicide is supposed to restore, as it were, to the family of his victim the loss of life which he has caused them.[51] Such an idea probably underlies a custom which Burckhardt heard existed among the Hallenga, who draw their origin from Abyssinia. When the slayer has been seized by the relatives of the deceased, a family feast is proclaimed, at which the murderer is brought into their midst. While his throat is then slowly cut with a razor, the blood is caught in a bowl and handed round amongst the guests, "every one of whom is bound to drink of it at the moment the victim breathes his last."[52] Among various Arabic-speaking tribes in Morocco I have met with a practice which also, possibly, involves a vague idea of restoration. On the perpetration of his deed the avenger {484} licks off the blood from the blade of the dagger with which he killed his victim; and in one instance related to me, he bit off a piece of flesh from the dead body and sucked its blood.[53] Mr. Trumbull even goes so far as to believe that, among the Hebrews, the primal idea of the _goel_'s mission was not to wreak vengeance, but "to restore life for life, or to secure the adjusted equivalent of a lost life."[54] But it is difficult to suppose that the exacting of blood-revenge ever could have been looked upon as an equivalent in the full sense of the term. If the loss of life is to be compensated some other practice must take its place.

[Footnote 51: _Cf._ Trumbull, _Blood Covenant_, p. 126 _sqq._]

[Footnote 52: Burckhardt, _Travels in Nubia_, p. 356.]

[Footnote 53: _Cf._ Goldziher, in Robertson Smith, _Kinship and Marriage in Early Arabia_, p. 296 n. 1.]

[Footnote 54: Trumbull, _Blood Covenant_, pp. 260, 263.]

Sometimes the manslayer, instead of being killed, is adopted as a member of the family of his victim.[55] Among the Kabyles of Algeria, for instance, a person who has killed another unintentionally, goes to the parents of the dead and says to them: "If you want to kill me, kill me, here is my winding-sheet. If not, pardon me, and I shall henceforth be one of your children." And from this day the manslayer is considered to belong to the _kharouba_, or _gens_, of the deceased.[56] Among the Jbâla of Northern Morocco, again, a homicide sometimes induces the avenger to abstain from his persecutions by giving him his sister or daughter in marriage; and a similar custom has been noticed among the Beni Amer[57] and Bogos.[58] In other cases slaves are given to the relatives of the slain in order to atone for the guilt;[59] but most commonly the compensation consists of cattle, money, or other property.

[Footnote 55: See Steinmetz, _Studien_, i. 410 _sqq._, 439 _sqq._; Kovalewsky, in _Revue Internationale de Sociologie_, ii. 87 _sq._]

[Footnote 56: Hanoteau and Letourneux, _La Kabylie_, iii. 68 _sq._]

[Footnote 57: Munzinger, _Ostafrikanische Studien_, p. 322.]

[Footnote 58: _Idem_, _Die Sitten und das Recht der Bogos_, p. 83. _Cf._ Kohler, _Nachwort zu Shakespeare vor dem Forum der Jurisprudenz_, p. 15 _sq._]

[Footnote 59: Squier, 'Archæology and Ethnology of Nicaragua,' in _Trans. American Ethn. Soc._ iii. pt. i. 129. _Idem_, _Nicaragua_, ii. 345 (ancient Nicaraguans). Macdonald, _Africana_, i. 171 (Eastern Central Africans).]

By giving presents to the relatives of his victim, the offender not only repairs the loss which he has inflicted {485} upon them, but also appeases their wounded feelings.[60] The pleasure of gain tends to suppress their passion, and the loss and humiliation which the adversary suffers by the gift exercise a healing influence on their resentment.[61] Sometimes the present is chiefly intended to serve as an apology. Among the Iroquois, according to Mr. Morgan, the white wampum which the murderer sent to the family of his victim and which, if accepted, for ever wiped out the memory of his deed, "was not in the nature of a compensation for the life of the deceased, but of a regretful confession of the crime, with a petition for forgiveness."[62] Compensation, moreover, has the advantage of saving the injured party the dangers involved in a blood-feud, the uncertainty of the issue, and the serious consequences which may result from the accomplished act of revenge. Whilst the carrying out of the principle of "life for life" often leads to protracted hostilities between the parties, compensation has a tendency to bring about a durable peace. For this reason it is to the interest of society at large to encourage the latter practice; and this encouragement naturally adds to its attractions.

[Footnote 60: Rée, _Entstehung des Gewissens_, p. 57 _sqq._ Steinmetz, _Studien_, i. 472 _sq._]

[Footnote 61: _Cf._ Miklosich, _loc. cit._ p. 148; Kohl, _op. cit._ i. 426, 436 (Montenegrines and Albanians).]

[Footnote 62: Morgan, _League of the Iroquois_, pp. 331, 333. _Cf._ Turner, _Samoa_, p. 326 (people of Aneiteum).]

But in spite of its merits, the practice of composition has, in comparison with blood-revenge, various disadvantages. It is not equally calculated to satisfy a revengeful mind. It has to contend with the conservatism of ancient custom. It may be taken as a token of cowardice or weakness, whereas the blood-feud gives to its perpetrator an opportunity to display his courage and skill. It may be considered offensive to the dead kinsman. Finally, if it is to flourish, it presupposes a certain amount of wealth.[63] {486} The importance of these difficulties depends on the circumstances in each special case. Vindictiveness, conservatism, the desire for fighting, and the estimation in which courage and martial ability are held, are naturally subject to variations, and so are people's wealth and their willingness to compensate. The ideas held concerning the spirits of the departed are likewise variable. The readiness with which blood-money was accepted among the Greeks of the Homeric age has been explained by their belief in the disembodied soul's dreamlike existence in Hades, without strong passions and without the power to molest the living; whilst the later custom of demanding life for life has been interpreted as the result of a change of ideas which attributed much greater activity to the dead.[64] In other cases the deceased is supposed to be appeased by a mere ceremony, or by a vicarious sacrifice. The Ossetes believe that he often appears in a dream to some of his descendants, "tantôt pour exiger de lui la vengeance, tantôt pour lui permettre, au contraire, de la remplacer par un simple office des morts . . . . Revêtu d'habits de deuil, les cheveux épars, l'assassin Ossète vient sur la tombe de celui qu'il a tué, pour accomplir une cérémonie dont le but avéré est de se consacrer lui-même à sa victime. Cette cérémonie est connue sous le nom de _kifaeldicïn_: le meurtrier se livre spontanément au défunt, qui, en la personne de son descendant, lui pardonne son offense."[65] In Eastern Central Africa, says Mr. Macdonald, "if one man slay another, the friends of the deceased are justified in killing the murderer on the spot. But if they catch him alive they put him in a slave-stick, till compensation be made by a heavy fine of from four to twenty slaves. When the fine is paid the life of the murderer is not demanded, but several of the slaves obtained in compensation are killed, to accompany the deceased."[66] In other instances the dead is perhaps supposed to be appeased by the mere compensation {487} paid to his descendants, or his feelings are simply disregarded when they collide with the interests of the living.[67] Generally speaking, the question whether compensation is to be accepted or not, must be settled by a balancing of advantages and drawbacks.

[Footnote 63: For the influence of wealth on the practice of composition, see Steinmetz, _Studien_, i. 427 _sqq._, and Lippert, _Kulturgeschichte der Menschheit_, ii. 591. Occasionally, however, composition occurs even among such a poor people as the Yahgans of Tierra del Fuego. "Sometimes," says Mr. Bridges (in _A Voice for South America_, xiii. 207), "the murderer is suffered to live, but he is much beaten and hurt, and has to make many presents to the relatives of the dead."]

[Footnote 64: Schmidt, _Ethik der alten Griechen_, ii. 125 _sqq._ Rohde, _Psyche_, pp. 8 _sqq._, 238.]

[Footnote 65: Kovalewsky, _Coutume contemporaine et loi ancienne_, p. 238.]

[Footnote 66: Macdonald, _Africana_, i. 170 _sq._]

[Footnote 67: _Cf._ Steinmetz, _Studien_, i. 452.]

We may expect, then, to find the customs regarding blood-revenge and compensation to vary exceedingly among different peoples. Among many the rule of revenge is strictly followed, and compensation never, or rarely, accepted, at least for intentional homicide. This group includes not only tribes who are in a state of savagery, but peoples like the Beni Amer,[68] Marea,[69] Kabyles of Jurjura,[70] and Jbâla of Morocco. Burckhardt says of the Bedouins:--"The stronger and the more independent a tribe is, the more remote from cultivated provinces, and the wealthier its individuals, the less frequently are the rights of the _Thar_ commuted into a fine. Great sheiks, all over the Desert, regard it as a shameful transaction to compromise in any degree for the blood of their relations."[71] Among the mountains of Daghestan[72] and in parts of Albania[73] it is likewise considered disgraceful to accept compensation for the murder of a relative.

[Footnote 68: Munzinger, _Ostafrikanische Studien_, p. 321 _sq._]

[Footnote 69: _Ibid._ p. 242.]

[Footnote 70: Hanoteau and Letourneux, _op. cit._ iii. 61 _sq._]

[Footnote 71: Burckhardt, _Notes on the Bedouins and Wahábys_, p. 178, _Cf._ Burton, _Pilgrimage to Al-Madinah and Meccah_, ii. 103.]

[Footnote 72: Kovalesky, in _Revue internationale de Sociologie_, ii. 87.]

[Footnote 73: Hahn, _op. cit._ i. 178.]

In some instances the acceptance of compensation does not necessarily mean that the family of the slain altogether renounce their right of revenge. Among the Ahts, "though it is usual to accept large presents as expiation for murder, yet, practically, this expiation is not complete, and blood alone effectually atones for blood. An accepted present never quite cancels the obligation to punish in the breast of the offended person or tribe."[74] Among the Somals, "after the equivalent is paid, the {488} murderer or one of his clan, contrary to the spirit of El Islam, is generally killed by the kindred or tribe of the slain."[75] Among the Berbers (Shlu[h.]) of the province of Sûs, in Southern Morocco, a person who commits homicide immediately flees to another tribe, and places himself under its protection. His relatives then pay _ddit_, or blood-money, to the family of the victim, but this only prevents the offended party from taking revenge on any of them, and does not entitle the murderer to return; if he appears outside the tribe to whom he has fled for refuge, he is at any time liable to be killed. Among the Ossetes, again, it was formerly "a prevalent custom for a murderer to pay a fixed price for a certain time to the family of the murdered man, say for a year, during which time the blood-revenge remained dormant."[76]

[Footnote 74: Sproat, _Scenes and Studies of Savage Life_, p. 153.]

[Footnote 75: Burton, _First Footsteps in East Africa_, p. 87 n. [dagger]. _Cf._ Paulitschke, _Ethnographie Nordost-Afrikas_, p. 263.]

[Footnote 76: von Haxthausen, _Transcaucasia_, p. 405.]

In many instances, on the other hand, custom allows the acceptance of compensation as a perfectly justifiable alternative for blood-revenge, or even regards it as the proper method of settling the case. Among the Indians of Western Washington and North-Western Oregon the principle of life for life, though fully recognised, is sometimes abrogated in favour of material damages.[77] Among the Thlinkets "the murder of a relative can be atoned for by a certain number of blankets."[78] Among the Californian Karok the murder of a man's nearest relative may be compounded for by the payment of money.[79] The Kutchin demand blood-money for a slain kinsman, but avenge his death should such be denied.[80] Among the Kandhs the custom of blood-revenge was modified by the principle of money compensation, the acceptance of such compensation being in no case considered disgraceful.[81] In the Malay Archipelago, whilst the more ferocious tribes {489} insist, in many situations, upon a literal compliance with the law of retaliation, other tribes constantly accept a pecuniary compensation.[82] Among the majority of the Bedawee tribes of Egypt compensation is generally taken in commutation for vengeance;[83] and the same is the case among the Aenezes, though it would reflect shame on the friends of the slain person if they were to make the first overture.[84] Among the Wadshagga, again, the acceptance of blood-money is obligatory.[85] The Vendîdâd forbids the followers of Zoroastrianism to refuse the compensation offered for a deed of bloodshed.[86] Among the Irish the public opinion of the village held that the quarrels between its members should be compromised in a certain manner. However, if the guilty party did not pay the amount awarded, the community did not compel him to do so, and the injured party was then at liberty to avenge his own wrongs by reprisals or levying of private war.[87] Among the Teutons the kindred of the slain might, in early times, choose between taking revenge or accepting compensation, just as they liked; but later on they were expected by public opinion, and finally required by public authority, not to pursue the feud if the proper composition was forthcoming, except in a few extreme cases.[88]

[Footnote 77: Gibbs, 'Tribes of Western Washington and Northwestern Oregon,' in _Contributions to North American Ethnology_, i. 189.]

[Footnote 78: Petroff, _loc. cit._ p. 165.]

[Footnote 79: Powers, _Tribes of California_, p. 21.]

[Footnote 80: Richardson, _Arctic Searching Expedition_, i. 386.]

[Footnote 81: Hunter, _Annals of Rural Bengal_, ii. 76. Macpherson, _Memorials of Service in India_, p. 82.]

[Footnote 82: Crawfurd, _History of the Indian Archipelago_, iii. 111.]

[Footnote 83: Lane, _Manners and Customs of the Modern Egyptians_, p. 120.]

[Footnote 84: Burckhardt, _Notes on the Bedouins and Wahábys_, p. 87.]

[Footnote 85: Merker, quoted by Kohler, in _Zeitschr. f. vergl. Rechtswiss._ xv. 56.]

[Footnote 86: Geiger, _op. cit._ ii. 34.]

[Footnote 87: _Ancient Laws of Ireland_, iii. p. lxxx.]

[Footnote 88: Keyser, _op. cit._ ii. pt. ii. 95. Pollock and Maitland, _op. cit._ i. 46 _sq._ _Gotlands-Lagen_, 13.]

Thus the exaction of life for life, from being a duty incumbent on the family of the dead, becomes a mere right of which they may or may not avail themselves, as they please, and is at last publicly disapproved of or actually prohibited. Among the circumstances by which this process has been brought about there is still one which calls for special attention, namely, the pressure of some intervening authority, the elders of the tribe,[89] or {490} the chief, inducing the avenger to lay down his weapon and to accept money for blood. I do not say that the practice of compensation has originated in such an intervention; we meet it among peoples who know nothing of courts, judges, or regular arbitrators.[90] But when we hear of chiefs making efforts to check the blood-feud by persuading the injured party to accept remuneration in money or property, it is impossible to doubt that some connection exists between the system of compensation and the judicial power of the chief. Among the Indians of Brazil, when blood is shed, either designedly or accidentally, by one of the same tribe, the chief not seldom insists upon the acceptance of compensation by the family of the deceased.[91] Of the people of Nias, amongst whom the offender may suffer death at the hands of the avenger, we read that even grave cases, when brought before the chief, are often punished by fines only.[92] Among the Dooraunees, in Western Afghanistan, "if the offended party complains to the Sirdar, or if _he_ hears of a murder committed, he first endeavours to bring about a compromise, by offering the Khoon Behau, or of price of blood."[93] The Teutonic nations, as Kemble observes, in the course of time made the State the arbitrator between the parties "by establishing a tariff at which injuries should be rated, and committing to the State the duty of compelling the injured person to receive, and the wrong-doer to pay, the settled amount. It thus engaged to act as a mediator between the conflicting interests, with a view to the maintenance of the general peace."[94]

[Footnote 89: _Cf._ Vámbéry, _Das Türkenvolk_, p. 305 _sq._ (Kirghiz); Munzinger, _Ostafrikanische Studien_, p. 500 (Barea and Kunáma).]

[Footnote 90: _E.g._, the Fuegians (Bridges, in _South American Missionary Magazine_, xiii. 152. _Idem_, in _A Voice for South America_, xiii. 207).]

[Footnote 91: von Martius, _Beiträge zur Ethnographie Amerika's_, i. 130. _Idem_, in _Jour. Roy. Geographical Soc._ ii. 199.]

[Footnote 92: Modigliani, _Viaggio a Nías_, p. 496.]

[Footnote 93: Elphinstone, _Kingdom of Caubul_, ii. 105 _sq._]

[Footnote 94: Kemble, _Saxons in England_, i. 270.]

We have previously discussed the important measure of substituting punishment for revenge by transferring the judicial and executive power of the avenger to a special authority within the body politic, commissioned with {491} the administration of justice. The system of compensation was only one or the methods adopted by such an authority for the settling of disputes; and, on the whole, it was a sign of weakness. Speaking of the Rejangs of Sumatra, Marsden observes that the practice of expiating murder by the payment of a certain sum of money "had doubtless its source in the imbecility of government, which being unable to enforce the law of retaliation, the most obvious rule of punishment, had recourse to a milder scheme of retribution, as being preferable to absolute indemnity."[95] When the central power of jurisdiction is firmly established, the rule of life for life regains its sway.[96] Thus, in the mature legislation of semi-civilised and civilised peoples, up to quite recent times, murder has almost invariably been treated as a capital offence--unless, indeed, committed by some person belonging to a specially privileged class, such as the Peruvian Incas,[97] the Brâhmanas of India,[98] or, in England, all who had the benefit of Clergy, that is, every man who knew how to read, with the exception of those who were married to widows.[99] But among many of the lower races, also, manslayers are subject to capital punishment, in the proper sense of the term--to death inflicted, not by an individual avenger, but by the community at large or by some special authority.[100]

[Footnote 95: Marsden, _History of Sumatra_, p. 246.]

[Footnote 96: _Cf._ Brunner, _Deutsche Rechtsgeschichte_, ii. 599 _sq._ (Teutonic peoples).]

[Footnote 97: Réville, _Hibbert Lectures on the Native Religions of Mexico and Peru_, p. 151.]

[Footnote 98: _Laws of Manu_, viii. 380 _sq._]

[Footnote 99: Stephen, _History of the Criminal Law of England_, i. 458 _sqq._ According to the Cornelian law, a free Roman citizen could not be punished capitally for the commission of murder, but was simply exiled from Italy, whereas a slave was executed for a similar crime (Mommsen, _Römisches Strafrecht_, p. 631 _sq._).]

[Footnote 100: _Supra_, pp. 171, 172, 189. Veniaminof, quoted by Petroff, _loc. cit._ p. 152 (Aleuts). Adair, _History of the American Indians_, p. 150. Morgan, _League of the Iroquois_, p. 331. Harmon, _Journals of Voyages and Travels_, p. 348 (Indians on the east side of the Rocky Mountains). Turner, _Samoa_, pp. 178, 295, 334 (Samoans, natives of Arorae, Efatese). Thomson, in _Jour. Anthr. Inst._ xxxi. 143 (Savage Islanders). Hickson, _A Naturalist in North Celebes_, p. 198 (Sangirese, in former days). Abreu de Galindo, _History of the Discovery and Conquest of the Canary Islands_, p. 27 (aborigines of Ferro). Johnston, _Uganda Protectorate_, ii. 882 (Mutei). Beltrame, _Il Fiume Bianco e i Dénka_, p. 77. In all these cases homicide or murder is said to be punished with death; but it may be that, in some of them, our authorities have not sufficiently distinguished between punishment and blood-revenge.]

It is not only by the slaying of a fellow-creature that a person may forfeit his right to live. Among various peoples custom allows, or sometimes even compels, the offended party to kill the offender in cases which involve {492} no blood-guiltiness, especially adultery;[101] and we hear of capital punishment being inflicted not only for homicide, but for treason,[102] incest,[103] adultery,[104] witchcraft,[105] sacrilege,[106] theft,[107] and other offences.[108] We have seen that among semi-civilised and civilised nations, particularly, the punishment of death has been applied to a great variety of offences, many of which appear to us almost venial.[109] And we have discussed both the origin of the idea that justice requires life for life, and the circumstances that have led to the infliction of punishments the severity of which, apparently at least, bears no proportion to the magnitude of the crime.[110]

[Footnote 101: _Supra_, p. 290 _sqq._ _Infra_, on Sexual Morality. Post, _Studien zur Entwicklungsgeschichte des Familienrechts_, p. 134 _sq._]

[Footnote 102: _Supra_, p. 189.]

[Footnote 103: _Infra_, on Sexual Morality.]

[Footnote 104: _Supra_, p. 189. _Infra_, on Sexual Morality.]

[Footnote 105: _Supra_, p. 189 _sq._]

[Footnote 106: _Supra_, p. 197.]

[Footnote 107: _Infra_, on the Right of Property.]

[Footnote 108: _Supra_, p. 195.]

[Footnote 109: _Supra_, p. 186 _sqq._]

[Footnote 110: _Supra_, ch. vii.]

But whilst, among peoples of culture, capital punishment has been inflicted far beyond the limits of the _lex talionis_, we meet, on the other hand, among such peoples with opinions to the effect that it should not be applied even in the most atrocious cases. The old philosopher Lao-tsze, the founder of Taouism, condemned it both as useless and as irreverent. The people, he argued, do not fear death; to what purpose, then, is it to try to frighten them with death? There is only one who presides over the infliction of it. "He who would inflict death in the room of him who presides over it may be described as hewing wood instead of a great carpenter. Seldom is it that he who undertakes the hewing, instead of the great carpenter, does not cut his own hands."[111] Nor does Confucius seem to have been in favour of capital punishment. When Chî {493} K'ang asked his opinion as to the killing of "the unprincipled for the good of the principled," Confucius replied:--"Sir, in carrying on your government, why should you use killing at all? Let your evinced desires be for what is good, and the people will be good."[112] The early Christians generally condemned the punishment of death, as well as all other forms of shedding human blood;[113] but when the Church obtained an ascendency, the condemnation of it was modified into the doctrine that no priest or bishop must take any part in a capital charge.[114] Later on, from the twelfth century at least, the priest might assist at judicial proceedings resulting in a sentence of death, if only he withdrew for the moment, when the sentence was passed.[115] And whilst ostentatiously sticking to the principle, "Ecclesia non sitit sanguinem,"[116] the Church had frequent recourse to the convenient method of punishing heretics by relegating the execution of the sentence to the civil power, with a prayer that the culprit should be punished "as mildly as possible and without the effusion of blood," that is, by the death of fire.[117] In modern times the views of the early Christians regarding capital punishment have been revived by the Quakers;[118] but the powerful movement in favour of its abolition chiefly derives its origin from the writings of Beccaria and the French Encyclopedists.

[Footnote 111: _Tâo Teh King_, 74.]

[Footnote 112: _Lun Yü_, xii. 19.]

[Footnote 113: Hetzel, _Die Todesstrafe_, p. 71 _sqq._ Günther, _Die Idee der Wiedervergeltung_, i. 271. Lactantius, _Divinæ Institutiones_, vi. ('De vero cultu') 20 (Migne, _Patrologiæ cursus_, vi. 708): ". . . occidere hominem sit semper nefas, quem Deus sanctum animal esse voluit."]

[Footnote 114: _Supra_, p. 381 _sq._ Lecky, _History of European Morals_, ii. 39. Laurent, _Études sur l'histoire de l'Humanité_, iv. 223; vii. 233.]

[Footnote 115: Gerhohus, _De ædificio Dei_, 35 (Migne, _op. cit._ cxciv. 1282).]

[Footnote 116: Katz, _Grundriss des kanonischen Strafrechts_, p. 54.]

[Footnote 117: Lecky, _History of European Morals_, ii. 41.]

[Footnote 118: Gurney, _Views & Practices of the Society of Friends_, pp. 377 n. 1, 389.]

The great motive force of this movement has been sympathy with human suffering and horror of the destruction of human life--feelings which have been able to operate the more freely, the less they have been checked either by the belief in the social expediency of {494} capital punishment, or by the notion of a vindictive god who can be conciliated only by the death of the offender. It has been argued that the punishment of death is no more effective as a deterrent from crime than are certain other punishments. According to Beccaria, it is not the intensity of a pain which produces the greatest effect on the mind of man, but its continuance; hence the execution of a culprit, occupying a short time only, must be a less deterring example than perpetual slavery, which ought to be the penalty for the greatest crimes.[119] Moreover, the circumstances which unavoidably attend the practical application of the punishment of death are such as excite the sympathy of the public in favour of the perpetrator of the crime and thereby seriously impair the efficacy of the punishment as an example.[120] An execution is regarded as less degrading than many other forms of punishment; when a man dies on the scaffold there is a counterpoise to the disgrace in the admiration excited by his firmness, whereas there is no such counterpoise when a man goes off in the prison van to be immured in a cell.[121] Statistical data prove, it is said, that, where capital punishment has been abolished either for certain crimes or generally, crime has not become more frequent after the abolition, whilst the re-enactment of capital punishment, or greater strictness in its execution, has nowhere diminished the number of offences punishable with death.[122] And the punishment of death is no more required by the dictates of abstract justice than it is requisite for the safety of the community. It is quite an arbitrary assumption, based on the rude theory of talion, that death must be inflicted on him who has caused death; such an assumption can be refuted simply by showing that there are many degrees of homicide.[123] Nay, far from being postulates of the highest justice, laws which {495} prescribe capital punishment may lead to the highest injustice. As Bentham observes, "the punishment of death is not remissible"; error is possible in all judgments, but whilst in every other case of judicial error compensation can be made, death alone admits of no compensation.[124] And not only may the innocent have to suffer an irreparable punishment, but the criminal easily escapes his punishment altogether. Experience shows that the punishment of death has the disadvantage of diminishing the repressive power of the legal menace, because witnesses, judges, and jurymen exert themselves to the utmost in order to avoid arriving at a verdict of guilty in many cases where an execution would be the consequence of such a verdict.[125] Finally, the punishment of death almost entirely misses one of the most essential aims of every legitimate punishment, the reformation of the criminal. Nay, by putting him to a speedy death we actually prevent him from morally reforming himself, and from manifesting the fruits of sincere repentance; and we perhaps deprive him of the opportunity of making good his claim to mercy at the hands of another and a higher Tribunal, on which we are arrogantly encroaching in a matter of which we are wholly unfit to judge.[126]

[Footnote 119: Beccaria, _Dei delitti e delle pene_, § 16.]

[Footnote 120: Romilly, _Punishment of Death_, p. 56 _sqq._]

[Footnote 121: _Ibid._ p. 47 _sq._ Hetzel, _op. cit._ p. 454 _sqq._]

[Footnote 122: Mittermaier, _Die Todesstrafe_, p. 150 _sqq._ Olivecrona, _Om dödsstraffet_, p. 130 _sqq._]

[Footnote 123: Mittermaier, _op. cit._ pp. 62, 133. von Mehring, _Frage von der Todesstrafe_, p. 19 _sqq._]

[Footnote 124: Bentham, _Rationale of Punishment_, p. 186 _sqq._ _Cf._ Hetzel, _op. cit._ p. 442 _sqq._]

[Footnote 125: Bentham, _op. cit._ p. 191 _sq._ Mittermaier, _op. cit._ pp. 98 _sqq._, 148.]

[Footnote 126: Romilly, _op. cit._ p. 3 _sqq._]

Under the influence of these and similar arguments, but chiefly owing to an increasing reluctance to take human life, the legislation of Europe has, from the end of the eighteenth century, undergone a radical change with reference to the punishment of death. In several European and American States it has been formally abolished, or is nowadays never inflicted,[127] whilst in the rest it is practically restricted to cases of wilful murder. But it still has as strenuous advocates as ever, and receives much support from popular feelings. It is said that the abolition of capital punishment would remove one of the {496} best safeguards of society; that it definitely prevents the criminal from doing further mischief; that it is a much more effective means of deterring from crime than any other penalty; that its abolition would have the disadvantage of crimes widely differing in their nature being placed on the same footing; that a person criminally disposed, if he knew that he would only be punished with imprisonment for life, would, instead of merely perpetrating robbery, commit murder at the same time, being aware that no higher penalty on that account would be inflicted; and so forth. As usually, religion also is called in to give strength to the argument. Several writers maintain that the statements in the Bible which command capital punishment have an obligatory power on all Christian legislators;[128] we even meet with the assertion that the object of this punishment is not the protection of civil society, but to carry out the justice of God, in whose name "the judge should sentence and the executioner strike."[129] But I venture to believe that the chief motive for retaining the punishment of death in modern legislation is the strong hold which the principle of talion has on the minds of legislators, as well as on the mind of the public. This supposition derives much support from the fact that capital punishment is popular only in the case of murder. "Blood, it is said, will have blood, and the imagination is flattered with the notion of the similarity of the suffering, produced by the punishment, with that inflicted by the criminal."[130]

[Footnote 127: Günther, _op. cit._ iii. 347 _sqq._ von Liszt, _Lehrbuch des Deutschen Strafrechts_, p. 261.]

[Footnote 128: Mittermaier, _op. cit._ p. 128 _sqq._]

[Footnote 129: Clay, _The Prison Chaplain_, p. 357.]

[Footnote 130: Bentham, _Rationale of Punishment_, p. 191.]

CHAPTER XXI

THE DUEL

WHEN the system of revenge was replaced by the system of punishment, the offended party generally lost the right of killing the offender. But there are noteworthy exceptions to this rule. In a previous chapter we have seen that, among various peoples, in cases involving unusually great provocation, an avenger who slays his adversary is either entirely excused by custom or law, or becomes subject to a comparatively lenient punishment.[1] A few words still remain to be said about the most persistent survival of the custom of exacting vengeance with eventual destruction of life, the modern duel. But in connection with this survival it seems appropriate to discuss the practice of duelling in general, in its capacity of a recognised social institution.

[Footnote 1: _Supra_, p. 290 _sqq._]

Duelling, or the fighting in single combat on previous challenge, is sometimes resorted to as a means of bringing to an end hostilities between different groups of people. Among the aborigines of New South Wales "the war often ends in a single combat between chosen champions."[2] In Western Victoria quarrels between tribes are sometimes settled by duels between the chiefs, and the result is accepted as final. "At other times disputes are decided by combat between equal numbers of warriors, painted {498} with red clay and dressed in war costume; but real fighting seldom takes place, unless the women rouse the anger of the men and urge them to come to blows. Even then it rarely results in a general fight, but comes to single combats between warriors of each side; who step into the arena, taunt one another, exchange blows with the liangle, and wrestle together. The first wound ends the combat."[3] Among the Thlinkets feuds between clans or families were commonly settled by duels between chosen champions, one from each side.[4] Ancient writers tell us that among the Greeks, Romans, and Teutons, combats were likewise agreed upon to take place between a definite number of warriors, for the sake of ending a war.[5] According to Tacitus, the Germans had the custom of deciding the event of battle by a duel fought between some captive of the enemy and a representative of the home army.[6] In all these cases, as it seems, the duel originates in a desire for a speedy peace.

[Footnote 2: Fraser, _Aborigines of New South Wales_, p. 40.]

[Footnote 3: Dawson, _Australian Aborigines_, p. 77.]

[Footnote 4: Holmberg, 'Ethnographische Skizzen über die Völker des russischen Amerika,' in _Acta Societatis Scientiarum Fennicæ_, iv. 322 _sq._]

[Footnote 5: See Grotius, _De jure belli et pacis_, ii. 20. 43. 1; Grimm, _Deutsche Rechtsalterthümer_, p. 928.]

[Footnote 6: Tacitus, _Germania_, 10.]

In other instances duels are fought for the purpose of settling disputes between individuals, either by conferring on the victor the right of possessing the object of the strife, or by gratifying a craving for revenge and wiping off the affront.

Thus, among the pagan Norsemen, any person who confided in his strength and dexterity with his weapons could acquire property by simply challenging its owner to surrender his land or fight for it. The combat was strictly regulated; the person challenged was allowed to strike first, he who retired or who lost his weapon was regarded as vanquished, and he who received the first wound, or who was most seriously wounded, had to pay a fixed sum of money in order to save his life.[7] In the {499} islands outside Kamchatka, if a husband found that a rival had been with his wife, he would admit that the rival had at least an equal claim to her. "Let us try, then," he would say, "which of us has the greater right, and shall have her." After that they would take off their clothes and begin to beat each other's backs with sticks, and he who first fell to the ground unable to bear any more blows, lost his right to the woman.[8] Among the Eskimo about Behring Strait Mr. Nelson was told by an old man that in ancient times, when a husband and a lover quarrelled about a woman, they were disarmed by the neighbours and then settled the trouble with their fists or by wrestling, the victor in the struggle taking the woman.[9] Among the Chippewyans Richardson saw more than once a stronger man assert his right to take the wife of a weaker countryman in consequence of a successful combat. "Any one," he says, "may challenge another to wrestle, and, if he overcomes, may carry off his wife as the prize. . . . The bereaved husband meets his loss with the resignation which custom prescribes in such a case, and seeks his revenge by taking the wife of another man weaker than himself."[10] In the tribes of Western Victoria, described by Mr. Dawson, a young chief who cannot get a wife, and falls in love with one belonging to a chief who has more than two, can, with her consent, challenge the husband to single combat, and, if the husband is defeated, the conqueror makes her his legal wife.[11] "In some points," says Mr. Riedel, "the aboriginal law of retaliation in Australia corresponds with the code of honour, so called, which certain classes in Europe have long maintained. When one blackfellow carries off the {500} wife of another, the injured husband and the betrayer meet in mortal combat; and the spear that spills the life blood repairs the wounded honour of the one, or justifies in the eyes of society the crime of the other."[12] Among the aborigines of Western Australia "duels are common between individuals who have private quarrels to settle, a certain number of spears being thrown until honour is satisfied."[13] Among the Dieyerie tribe, should anybody accuse another wrongfully, he is challenged to fight by the person he has accused, and this settles the matter.[14] Of the duels fought among the natives of North-West-Central Queensland Dr. Roth gives us an interesting account. Supposing an individual considers himself aggrieved, a duel often takes place at a distance from camp. There is no intention of killing. With two-handed swords, the combatants would only aim at striking each other on the head; with spears, they would only make for the fleshy parts of the thighs; with stone-knives, they would only cut into the shoulders, flanks, and buttocks, producing gashes an inch or more deep, and up to seven or even eight inches long. The lying upon the back on the ground--a posture in which no lawful incisions with a stone-knife can be made--is the sign of defeat, indicating that the combatant has had enough, and gives in. But the matter has not yet come to an end; the duels of these savages are not so defective in point of justice as the modern duels of Europe. "The fight between the two individuals being at length brought to a termination, steps are taken by the old men and elders to inquire into the rights or wrongs of the dispute. If the victor turns out to be the aggrieved party he has to show good cause, as for instance that the man whom he had just taken upon himself to punish had raped his gin, gave him the _munguni_ [or death-bone], or wrought him some similarly flagrant wrong: under such circumstances, no further action is taken by anyone. If, {501} on the other hand, the victor happens to be the aggrieved party only in his own opinion, and not in that of those to whom he is answerable, and who do not believe the grounds on which he commenced the fight to be sufficient, he has to undergo exactly the same mutilations subsequently at the hands of the vanquished as he himself had inflicted." And should one of the combatants be killed in the duel, which may sometimes happen, the survivor, unless he can show that he had sufficient provocation or cause, "will be put to death in similar manner, at the instance of the camp-council, and usually undergo the extra degradation of digging his own as well as his victim's grave."[15] Of the South American Charruas Azara writes:--"Ce sont les parties elles-mêmes qui arrangent leurs différends particuliers: si elles ne sont pas d'accord, elles se chargent à coups de poing, jusqu'à ce qu'une des deux tourne le dos et laisse l'autre, sans reparler de l'affaire. Dans ces duels, ils ne font jamais usage des armes; et je n'ai jamais ouï dire qu'il y ait eu quelqu'un de tué."[16] If an Apache kills another, "the next-of-kin to the defunct individual may kill the murderer--if he can. He has the right to challenge him to single combat, which takes place before all assembled in the camp, and both must abide the result of the conflict. There is no trial, no set council, no regular examination into the crime or its causes; but the ordeal of battle settles the whole matter."[17] Among the Central Eskimo, "strange as it may seem, a murderer will come to visit the relatives of his victim (though he knows that they are allowed to kill him in revenge) and will settle with them. He is kindly welcomed, and sometimes lives quietly for weeks and months. Then he is suddenly challenged to a wrestling match, and if defeated is killed, or if victorious he may kill one of the opposite party, or when hunting, he is {502} suddenly attacked by his companions and slain."[18] Richardson heard that some of the Eskimo "decided their quarrels by alternate blows of the fist, each in turn presenting his head to his opponent."[19] The Tunguses formerly had a duel with arrows called _koutschiguera_, which was fought "only in the presence of the elders, who marked out the spot, settled the distance of the combatants, and gave the signal for letting fly."[20] The Santals have a tradition that years long since there was a custom amongst them "of deciding their disputes, when the parties were males, by the ordeal of single combat. The bow and arrow or hanger served in lieu of pistol and sword for these rustic duels. Such affairs of honour were always fatal to one party, but of late times, as equitable remedies have been brought nearer to them, this remnant of a barbarous age has disappeared.**"[21] Mr. Man also heard that the Kols at one time preferred the duel to any other mode of seeking redress for a wrong.[22] The ancient Swedes were even compelled by law to fight duels to repair their wounded honour. The so-called 'Hedna-lag,' a fragment of an old pagan law, prescribes that, if any man says to another, "You are not a man's equal, you have not the heart of a man," and the other replies, "I am a man as good as you," they shall encounter in a place where three roads meet. If he who has suffered the insult does not appear, he shall be held to be what the other one called him, and he shall henceforth be allowed neither to swear nor to give evidence in any case. If, on the other hand, they meet in single combat, and the offended party kills the offender, he shall have to pay no compensation for it; but if the offender kills his opponent, he shall pay half his price.[23]

[Footnote 7: Lea, _Superstition and Force_, p. 111 _sq._ Keyser, _Efterladte Skrifter_, ii. pt. i. 391. Weinhold, _Altnordisches Leben_, p. 297. von Amira, 'Recht,' in Paul's _Grundriss der germanischen Philologie_, iii. 217 _sq._ Arnesen, _Historisk Indledning til den gamle og nye Islandske Raettergang_, p. 158 _sq._ Rosenberg, _Traek af Livet paa Island i Fristats-Tiden_, p. 98 n.]

[Footnote 8: Steller, _Beschreibung von dem Lande Kamtschatka_, p. 348.]

[Footnote 9: Nelson, 'Eskimo about Behring Strait,' in _Ann. Rep. Bur, Ethn._ xviii. 292.]

[Footnote 10: Richardson, _Arctic Searching Expedition_, ii. 24 _sq._]

[Footnote 11: Dawson, _op. cit._ p. 36. For other instances of rights to women being acquired by duels, see Westermarck, _History of Human Marriage_, p. 159 _sqq._; Post, _Afrikanische Jurisprudenz_, ii. 23 _sq._ (people of Kordofan).]

[Footnote 12: Riedel, _Aborigines of Australia_, p. 6.]

[Footnote 13: Calvert, _Aborigines of Western Australia_, p. 22.]

[Footnote 14: Gason, 'Manners and Customs of the Dieyerie Tribe,' in Woods, _Native Tribes of South Australia_, p. 266.]

[Footnote 15: Roth, _Ethnological Studies among the North-West-Central Queensland Aborigines_, p. 139 _sq._]

[Footnote 16: Azara, _Voyages dans l'Amérique méridionale_, ii. 16.]

[Footnote 17: Cremony, _Life among the Apaches_, p. 293.]

[Footnote 18: Boas, 'Central Eskimo,' in _Ann. Rep. Bur. Ethn._ vi. 582.]

[Footnote 19: Richardson, _Arctic Searching Expedition_, i. 367 _sq._]

[Footnote 20: Georgi, _Russia_, iii. 83.]

[Footnote 21: Man, _Sonthalia and the Sonthals_, p. 90.]

[Footnote 22: _Ibid._ p. 90.]

[Footnote 23: Leffler, _Om den fornsvenska hednalagen_, p. 40 _sq._ (in _K. Vitterhets Historie och Antiqvitets Akademiens Månadsblad_, 1879, p. 139 _sq._). Professor Leffler is inclined to believe that this fragment once formed a part of the older Vestgötalag (_op. cit._ p. 35, in the _Månadsblad_, p. 134).]

{503} These customs and rules are due to a variety of circumstances. To recognise the duel as a means of acquiring a right to land or women, is a concession to superior strength in a society where there is no government, or where the government is weak; whilst in the opportunity given to the challenged party to oppose the avenger on equal terms we may trace the interfering influence of public opinion. The duel is also in a higher degree than downright violence calculated to bring about a definite arrangement; and in some cases, as we have seen, it is a mere sham-fight, which may serve as a preventive against the infliction of more serious injuries, by showing which party is the weaker and, consequently, has to give in. In other cases, again, the challenge is a method of bringing forward an offender who otherwise might be out of reach, and of limiting the fight to the parties themselves, so as to prevent whole families from making war upon each other.[24] Moreover, a duel may be preferable to an ordinary act of revenge as a means of wiping off an affront and of satisfying the claims of honour; it displays more courage, it commands more respect. In several of the cases referred to it is obviously a mitigated form of revenge, a method of settling a point of honour in a comparatively harmless way, and as such it has certain advantages over the practice of compensation; it requires no wealth on the part of the offender, and allows of no doubt as to the courage of the sufferer.[25] The Queensland aborigines are said to be very proud of the wounds they receive in their single combats,[26] and the duelling Eskimo "consider it cowardly to evade a stroke."[27] The duel {504} may, finally, be regarded as the most equitable form of settling disputes in cases where both parties claim to be in the right. Sometimes it is even resorted to as a means of ascertaining the truth, as an ordeal or "judgment of God."

[Footnote 24: _Cf._ Arnesen, _op. cit._ pp. 150, 166 _sq._]

[Footnote 25: According to Dr. Steinmetz, the origin of the duel is "die Beschränkung des Rachekampfes. . . . Die treibende Kraft, welche zu dieser duellartigen Beschränkung führte, war die Exogamie, die verwandtschaftlichen Beziehungen zwischen Gruppen, der Friedensverlangen erzeugende, erweiterte Verkehr derselben. Negative Bedingungen waren: das Fehlen einer rechtsprechenden centralen Regierungsgewalt, und das nicht Erfülltsein der Entwicklungsbedingungen der Composition, namentlich der Mangel an ökonomischen Gütern, welche die materielle Entschädigung unmöglich machte" (Steinmetz, _Studien zur ersten Entwicklung der Strafe_, ii. 67, 87).]

[Footnote 26: Roth, _op. cit._ p. 140.]

[Footnote 27: Richardson, _Arctic Searching Expedition_, i. 368.]

The wager of battle is well known to every student of mediæval law. Outside Europe we meet with a similar institution in the Malay Archipelago. In his 'History of the Indian Archipelago,' Mr. Crawfurd states:--"The trial by combat or duel, and the appeal to the judgment of God by various descriptions of ordeal, are not unknown. The Malay laws direct that the combat or ordeal shall be had recourse to in the absence of evidence, in the following words: 'If one accuse and another deny, and there be no witnesses on either side, the parties shall either fight or submit to the ordeal of melted tin or boiling oil.'"[28] The natives of the Barito River basin in Borneo have the following ordeal, called the _Hagalangang_:--"Both parties are placed in boxes at a distance of seven fathoms opposite one another, the boxes being made of nibong laths and so high as to reach a man's breast. Then both receive a sharpened bamboo of a lance's length to throw at each other at a given signal. The wounded person is supposed to be guilty."[29] Among the Teutons the judicial combat seems to have developed out of the ancient practice of settling disputes by private duelling. In a time when the community did its best to suppress acts of revenge, it was no doubt a wise measure to adopt the duel as a form of judicial procedure, investing it with the character of an ordeal.[30] It seems probable that the duel assumed this character already among the pagan Teutons.[31] Like other ordeals it was resorted to in cases where there was some doubt as to the guilt of the accused.[32] To {505} appeal to "the judgment of God" was an expedient substitute for human evidence in a society where nothing was more difficult than to procure reliable witnesses, and where superstition reigned supreme. Speaking of the Franks, M. Esmein observes:--"En dehors du flagrant délit ou de l'aveu de l'accusé, tout était incertitude. . . . Par solidarité forcée, jamais un homme ne témoignera contre un autre homme du même groupe; il ne témoignera pas non plus par crainte de la vengeance et des représailles contre un homme appartenant à un autre groupe."[33] I shall later on try to prove that the ordeal is not, as it is often supposed to be, primordially based on the belief in an all-knowing, all-powerful, and just god, who protects the innocent and punishes the guilty, but that it largely springs from the same notion as underlies the belief in the efficacy of an oath. The ordeal, then, intrinsically involves an imprecation with reference to the guilt or innocence of a suspected person, and its proper object is to give reality to this imprecation, for the purpose of establishing the validity or invalidity of the suspicion. This also holds good of the judicial combat. The issue of the fight decided the question of guilt because of the imprecation involved in the oath preceding the duel. Before the conflict commenced each party asserted his good cause in the most positive manner, confirmed his assertion by a solemn oath on the Gospels or on a relic of approved sanctity, and called upon God to grant victory to the right. Such an oath was an indispensable preliminary to every combat, and the defeat was thus not merely the loss of the suit, but also a conviction of perjury, to be punished as such.[34] That the real object of the judicial duel was to correct the abuses of compurgation by oath appears from various {506} facts. Gundebald, king of the Burgundians, says expressly, in the preamble to a law by which he authorises the wager of battle, that his reason for doing so is, that his subjects may no longer take oaths upon uncertain matters, or forswear themselves upon certain.[35] Charlemagne urged the use of the duel as greatly preferable to the shameless oaths which were taken with so much facility, and Otho II. ordered its employment in various forms of procedure for the same reason.[36] Witnesses might have to fight as well as principals. A Bavarian law even directed the claimant of an estate to combat not the defendant, but his witness;[37] and in the later Middle Ages, after enlightened legislators had been strenuously and not unsuccessfully endeavouring to limit the abuse of the judicial combat, the challenging of witnesses was still the favourite mode of escaping legal condemnation.[38] Some codes required the witnesses to come into court armed, and to have their weapons blessed on the altar before giving their testimony.[39] The practice of blessing the arms before the duel took place[40] was no doubt intended to enable them the better to carry out the imprecation by saturating them with sanctity, or by increasing their natural sanctity; weapons are commonly regarded with superstitious veneration, hence oaths taken upon them are held to be particularly binding.[41] But though the judicial duel fundamentally derived its efficacy as a means of ascertaining the truth from its connection with an oath, it has, owing to the tendency of magic to fuse into religion, readily come to be regarded as an appeal to the justice of God, just as curses are transformed into {507} prayers and perjury becomes an offence against the Deity.

[Footnote 28: Crawfurd, _History of the Indian Archipelago_, iii. 92.]

[Footnote 29: Schwaner, _Borneo_, i. 212.]

[Footnote 30: Dahn observes (_Bausteine_, ii. 57) that "der Kampf ursprünglich gar kein Gottesurtheil, sondern lediglich eine Verweisung der Parteien auf Selbsthülfe . . . war." _Cf._ Patetta, _Le ordalie_, p. 178.]

[Footnote 31: Patetta, _op. cit._ p. 179.]

[Footnote 32: See Unger, 'Der gerechtliche Zweikampf bei den germanischen Völkern,' in _Göttinger Studien_, 1847, Zweite Abtheilung, p. 358 _sq._]

[Footnote 33: Esmein, _Cours élémentaire du droit français_, p. 96 _sq._]

[Footnote 34: _Lex Baiuwariorum_, ii. 1. Jourdan, Decrusy, and Isambert, _Recueil général des anciennes lois françaises_, ii. 840 _sqq._ Bracton, _De Legibus et Consuetudinibus Angliæ_, fol. 141 b _sq._, vol. ii. 438 _sqq._: "Sic me Deus adjuvet & haec sancta." Lea, _Superstition and Force_, p. 166 _sq._ Brunner, _Deutsche Rechtsgeschichte_, ii. 415. von Amira, 'Recht,' in Paul's _Grundriss der germanischen Philologie_, iii. 218. Unger, _loc. cit._ p. 386. Tuchmann, in _Mélusine_, iv. 130.]

[Footnote 35: _Leges Burgundionum_, Leges Gundebati, 45.]

[Footnote 36: Lea, _op. cit._ p. 118.]

[Footnote 37: _Lex Baiuwariorum_, xvii. 2 (xvi. 2).]

[Footnote 38: Beaumanoir, _Coutumes du Beauvoisis_, lxi. 58, vol. ii. 398. Lea, _op. cit._ p. 120 _sq._ Unger, _loc. cit._ p. 379 _sqq._]

[Footnote 39: Lea, _op. cit._ p. 120.]

[Footnote 40: Esmein, _op. cit._ p. 95.]

[Footnote 41: For the worship of, and swearing by, weapons, see Du Cange, 'Juramentum super arma,' in _Glossarium ad scriptores mediæ et infimæ Latinitatis_, iii. 1616 _sq._; Grimm, _Deutsche Rechtsalterthümer_, pp. 165, 166, 896; Pollock, _Oxford Lectures_, p. 269 _sq._ n. 1; Joyce _Social History of Ancient Ireland_, i. 286 _sq._ In Morocco, also, an oath taken on a weapon is considered a particularly solemn form of swearing.]

In most European countries the judicial duel survived the close of the Middle Ages, but disappeared shortly afterwards.[42] Various circumstances contributed to its decline and final disappearance. From an early period Councils and popes had declared against it,[43] but with little success; many ecclesiastics, indeed, not only connived at the practice, but authorised it, and questions concerning the property of churches and monasteries were decided by combat.[44] There were other more powerful causes at work--the growth of communes, devoted to the arts of peace, seeking their interest in the pursuits of industry and commerce, and enjoying the advantage of settled and permanent tribunals; the revival of Roman law, which began to undermine all the institutions of feudalism;[45] the ascendency of the royal power in its struggle against the nobles; the increase of enlightenment, the decrease of superstition. But though finally banished from the courts of justice, the duel did not die. In the sixteenth century, when the judicial combat faded away, the duel of honour began to flourish.[46] Buckle justly observes that, "as the trial by battle became disused, the people, clinging to their old customs, became more addicted to duelling";[47] hence the judicial duel may be regarded as the direct parent of the modern duel.[48] The Church and the State naturally tried to suppress this sanguinary survival of barbarism. The Council of Trent declared that "the detestable custom of duelling, introduced by the contrivance of the devil, that by the bloody death of the body {508} he may accomplish the ruin of the soul," was to be utterly exterminated from the Christian world, and that not only principals and seconds, but anyone who had given counsel in the case of a duel, or had in any other way persuaded a person thereunto, as also the spectators thereof, should be subjected to excommunication and perpetual malediction.[49] In England, Cromwell's Parliament made a determined effort to check the practice.[50] A Scotch law of 1600 rendered the bare act of engaging in a duel, without license from the king, a capital offence.[51] About the same period the Spanish Cortes passed a law which subjected all parties to a duel to the penalties of treason.[52] In 1602, Henry IV. of France issued an edict condemning to death whoever should give or accept a challenge or act as second;[53] and already several edicts against duelling had been promulgated under Louis XIII.[54] when, in 1626, there was published a new one punishing with death any person who had killed his adversary in a duel, or had been found guilty of sending a challenge a second time.[55] But all these enactments had little or no effect. We are told that in the eight years between 1601 and 1609, two thousand men of noble birth fell in duels in France; and, according to Lord Herbert of Cherbury, who was ambassador at the court of Louis XIII., there was scarce a Frenchman worth looking on who had not killed his man in a duel.[56] As Robertson observes, in reference to duelling, "no custom, how absurd soever it may be, if it has subsisted long, or derives its force from the manners and prejudices of the age in which it prevails, was ever abolished by the bare promulgation of laws and statutes."[57] In spite of laws which directly prohibit duelling, or which punish with great severity anyone who kills another in a duel, sometimes even subjecting {509} him to punishment for murder,[58] the duel still prevails in many European countries as a recognised custom, so much supported by public opinion that the laws referring to it are seldom or never applied.

[Footnote 42: Lea, _op. cit._ p. 199 _sqq._ In England, however, it was formally abolished by law as late as 1819 (Stephen, _History of the Criminal Law of England_, i. 249 _sq._).]

[Footnote 43: Du Boys, _Histoire du droit criminel des peuples modernes_, ii. 182. Lea, _op. cit._ p. 206 _sqq._]

[Footnote 44: Robertson, _History of the Reign of the Emperor Charles V._ i. 357 _sq._ 'Notitia gurpitionis,' in Bouquet, _Recueil des historiens des Gaules et de la France_, ix. 729.]

[Footnote 45: Lea, _op. cit._ pp. 200-205, 211 _sq._ Unger, _loc. cit._ p. 392 _sqq._]

[Footnote 46: Storr, 'Duel,' in _Encyclopædia Britannica_, vii. 512.]

[Footnote 47: Buckle, _Miscellaneous and Posthumous Works_, i. 386. _Cf._ Bosquett, _Treatise on Duelling_, p. 79.]

[Footnote 48: Storr, _loc. cit._ p. 511.]

[Footnote 49: _Canons and Decrees of the Council of Trent_, Session xxv. 19, p. 274 _sq._]

[Footnote 50: Pike, _History of Crime in England_, ii. 192.]

[Footnote 51: Hume, _Commentaries on the Law of Scotland_, ii. 281. Erskine, _Principles of the Law of Scotland_, p. 560.]

[Footnote 52: Truman, _Field of Honor_, p. 70.]

[Footnote 53: Isambert, Taillandier, and Decrusy, _Recueil général des anciennes lois françaises_, xv. 351 _sq._]

[Footnote 54: _Ibid._ xvi. 21, 106, 146.]

[Footnote 55: _Ibid._ xvi. 176, 179.]

[Footnote 56: Storr, _loc. cit._ p. 512.]

[Footnote 57: Robertson, _op. cit._ i. 66.]

[Footnote 58: Günther, _Die Idee der Wiedervergeltung_, iii. 225, n. 467. Stephen, _History of the Criminal Law of England_, iii. 99 _sqq._ Gelli, _Il duello_, p. 21.]

This curious practice of taking the law into one's own hands, which we find existing in the midst of modern civilisation, is explicable, partly from the indifference with which legislators have treated offences against honour,[59] partly from the force of habit. The insulted person, finding no adequate legal remedy for the affront he has suffered, determines to be his own avenger, and challenges the offender to fight. Nor is revenge his only motive. He desires also to wash off the indignity by showing that he respects his honour more than his life. The notion that a challenge to mortal combat effaces the blot which an insult has imprinted upon a man's honour is a survival from a period when the honourable man was above everything a brave man.[60] By displaying courage the offended party demonstrates that he is not worthy of contempt, by showing timidity he condemns himself. So far as justice is concerned, the duel, of course, became an absurdity as soon as it ceased to be looked upon in the light of an ordeal. It compels the insulted person to expose himself to a fresh injury from the side of an impudent offender, it allows the scoundrel to repay the most condign censure with a mortal stroke. But when a man's honour is at stake the voice of justice is easily silenced, and the pressure of ancient habit is greater than ever. As is usual in similar cases, a variety of more or less futile arguments are adduced to give their support to the survival. Lord Kames maintained that, if two persons agree to decide their quarrel by single combat, the State has nothing to do with it, since they need not make use of the protection which the State offers them.[61] But, as a matter of fact, the {510} duel is not a private affair between two individuals. As Moore observed, "a refusal of the duel is attended with such mortifying circumstances, with such an imputation of meanness and cowardice . . . , with such a studied contempt in public, and exclusion from the polite circle in private, as renders the alternative both cruel and inhuman";[62] and it would seem that the State ought to protect its members against such a compulsion. It is said that the duel "grasps the sword of justice, which the laws have dropped, punishing what no code can chastise--contempt and insult."[63] But we find that in countries where it no longer prevails, laws against insults, courts of honour, and especially more refined ideas as regards honorary satisfaction, have made it as useless as it is absurd, a matter of the past which nobody desires to revive.

[Footnote 59: _Cf._ Bentham, _Theory of Legislation_, p. 299 _sqq._]

[Footnote 60: That the modern duel is a special development of Chivalry has been pointed out by Buckle (_History of Civilization in England_, ii. 136 _sq._).]

[Footnote 61: Kames, _Sketches of the History of Man_, i. 415 n.]

[Footnote 62: Moore, _Full Inquiry into the Subject of Suicide_, ii. 276.]

[Footnote 63: Quoted by Millingen, _History of Duelling_, i. 300.]

CHAPTER XXII

BODILY INJURIES

CLOSELY related to the right to life is the right to bodily integrity. Indeed, homicide is, generally speaking, the highest form of bodily injury which can, in the nature of things, be inflicted, although there are some forms of ill-treatment which are more terrible than death itself.[1]

[Footnote 1: _Cf._ Stephen, _History of the Criminal Law of England_, iii. 11.]

In the case of bodily injuries the magnitude of the offence is, other things being equal, proportionate to the harm inflicted. At the lower stages of civilisation we meet with the principle of an eye for an eye and a tooth for a tooth, or the offender has to pay an adequate compensation for the injury.[2] It is said in the Laws of Manu that, if a blow is struck against men in order to give them pain, the judge shall inflict a fine in proportion to the amount of pain caused.[3] According to Muhammedan law, retaliation for intentional wounds and mutilations is allowed, but a fine may be accepted instead. The fine for depriving a man of any of his five senses, or dangerously wounding him, or grievously disfiguring him for life, or cutting off a member that is single, as the {512} nose, is the whole price of blood; the fine for a member of which there are two and not more, as a hand or a foot, is half the price of blood; the fine for a member of which there are ten, as a finger or a toe, is a tenth of the price of blood.[4] The scale of fines for bodily injuries contained in many of the early Teutonic law-books is minute to a degree.[5] According to various texts of the Salic law, 100 solidi--that is, a moiety of the _wergeld_--must be paid for depriving a man of a hand, foot, eye, or the nose; the thumb and great toe were valued at 50 solidi; the second finger with which the bow was drawn, at 35.[6] With respect to other acts of violence, the fine varied according to several circumstances, as, whether the blow was given with a stick or with closed fist, whether the brain was laid bare, whether certain bones were obtruded and how much, whether blood flowed from the wound on the ground, and so forth.[7] In the Anglo-Saxon codes almost every part and particle of the body, every tooth, toe, and nail, had its price. According to the Laws of Aethelbirht, for instance, twenty shillings were paid for striking off a thumb, three for a thumb nail, eight for the forefinger, eleven for the little finger.[8] In early Celtic law different amounts of injury were taxed with a similar affected precision.[9] Nothing can better give us an idea of the business-like manner in which the whole subject was treated than the Irish law against castration. If the injured persons be people to whom the organs extirpated are of no use, "such as a decrepit old man or a man in orders, there is nothing due to them for the loss of them, but body-fine according to the severity of the wound."[10] {513} After this one is almost surprised to read in the ancient laws of Ireland that, when a person had once been maimed, and received part or all of his body-fine, no subsequent wrong-doer could insist that the injured person should be rated as a damaged article.[11]

[Footnote 2: Post, _Afrikanische Jurisprudenz_, ii. 61 _sqq._ Munzinger, _Ostafrikanische Studien_, pp. 208 (Takue), 502 (Barea and Kunáma). Burton, _Two Trips to Gorilla Land_, i. 105 (Mpongwe). Maclean, _Compendium of Kafir Laws and Customs_, p. 61 _sq._ Macpherson, _Memorials of Service in India_, p. 82 (Kandhs). Earl, _Papuans_, p. 83 (Papuans of Dory). Kubary, _Die socialen Einrichtungen der Pelauer_, p. 74 (Pelew Islanders). Petroff, 'Report on Alaska,' in _Tenth Census of the United States_, p. 105 (Thlinkets).]

[Footnote 3: _Laws of Manu_, viii. 286.]

[Footnote 4: Lane, _Manners and Customs of the Modern Egyptians_, p. 120. Sachau, _Muhammedanisches Recht_, p. 764.]

[Footnote 5: Wilda, _Strafrecht der Germanen_, p. 729. Stemann, _Den danske Retshistorie indtil Christian V.'s Lov_, p. 658. Stephen, _History of the Criminal Law of England_, i. 56. Lappenberg, _History of England under the Anglo-Saxon Kings_, ii. 422.]

[Footnote 6: _Lex Salica_, edited by Hessels, coll. 163-167, 170, 172-177, 179.]

[Footnote 7: _Ibid._ col. 100 _sqq._]

[Footnote 8: _Laws of Æthelbirht_, 54.]

[Footnote 9: _Ancient Laws of Ireland_, iii. pp. cix., 349. _Venedotian Code_, iii. 23 (_Ancient Laws and Institutes of Wales_, p. 151 _sqq._). _Dimetian Code_, ii. 17 (_ibid._ p. 246 _sqq._). _Gwentian Code_, ii. 6 _sq._ (_ibid._ p. 340 _sq._).]

[Footnote 10: _Ancient Laws of Ireland_, iii. 355.]

[Footnote 11: _Ibid._ iii. pp. cix., cxi., 349, 351.]

However, the degree of the offence depends not only on the suffering inflicted, but on the station of the parties concerned; and in some cases the infliction of pain is held allowable or even a duty.