CHAPTER XXI

111Tâo Teh King, 74.

112Lun Yü, xii. 19.

113Hetzel,Die Todesstrafe, p. 71sqq.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.”

114Supra, p. 381sq.Lecky,History of European Morals, ii. 39. Laurent,Études sur l’histoire de l’Humanité, iv. 223; vii. 233.

115Gerhohus,De ædificio Dei, 35 (Migne,op. cit.cxciv. 1282).

116Katz,Grundriss des kanonischen Strafrechts, p. 54.

117Lecky,History of European Morals, ii. 41.

118Gurney,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 ofcapital 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.119Moreover, 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.120An 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.121Statistical 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.122And 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.123Nay, far from being postulates of the highest justice, laws whichprescribe 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.124And 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.125Finally, 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

119Beccaria,Dei delitti e delle pene, § 16.

120Romilly,Punishment of Death, p. 56sqq.

121Ibid.p. 47sq.Hetzel,op. cit.p. 454sqq.

122Mittermaier,Die Todesstrafe, p. 150sqq.Olivecrona,Om dödsstraffet, p. 130sqq.

123Mittermaier,op. cit.pp. 62, 133. von Mehring,Frage von der Todesstrafe, p. 19sqq.

124Bentham,Rationale of Punishment, p. 186sqq.Cf.Hetzel,op. cit.p. 442sqq.

125Bentham,op. cit.p. 191sq.Mittermaier,op. cit.pp. 98sqq., 148.

126Romilly,op. cit.p. 3sqq.

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,127whilst 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 thebest 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;128we 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.”129But 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

127Günther,op. cit.iii. 347sqq.von Liszt,Lehrbuch des Deutschen Strafrechts, p. 261.

128Mittermaier,op. cit.p. 128sqq.

129Clay,The Prison Chaplain, p. 357.

130Bentham,Rationale of Punishment, p. 191.

WHENthe 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.1A 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.

1Supra,p. 290sqq.

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.”2In 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, paintedwith 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.”3Among the Thlinkets feuds between clans or families were commonly settled by duels between chosen champions, one from each side.4Ancient 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.5According 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.6In all these cases, as it seems, the duel originates in a desire for a speedy peace.

2Fraser,Aborigines of New South Wales, p. 40.

3Dawson,Australian Aborigines, p. 77.

4Holmberg, ‘Ethnographische Skizzen über die Völker des russischen Amerika,’ inActa Societatis Scientiarum Fennicæ, iv. 322sq.

5See Grotius,De jure belli et pacis, ii. 20. 43. 1; Grimm,Deutsche Rechtsalterthümer, p. 928.

6Tacitus,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.7In theislands 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.8Among 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.9Among 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.”10In 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 thewife 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.”12Among 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.”13Among the Dieyerie tribe, should anybody accuse another wrongfully, he is challenged to fight by the person he has accused, and this settles the matter.14Of 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 themunguni[or death-bone], or wrought him some similarly flagrant wrong: under such circumstances, no further action is taken by anyone. If,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.”15Of 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.”16If 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.”17Among 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 issuddenly attacked by his companions and slain.”18Richardson heard that some of the Eskimo “decided their quarrels by alternate blows of the fist, each in turn presenting his head to his opponent.”19The Tunguses formerly had a duel with arrows calledkoutschiguera, 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.”20The 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.”21Mr. Man also heard that the Kols at one time preferred the duel to any other mode of seeking redress for a wrong.22The 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

7Lea,Superstition and Force, p. 111sq.Keyser,Efterladte Skrifter, ii. pt. i. 391. Weinhold,Altnordisches Leben, p. 297. von Amira, ‘Recht,’ in Paul’sGrundriss der germanischen Philologie, iii. 217sq.Arnesen,Historisk Indledning til den gamle og nye Islandske Raettergang, p. 158sq.Rosenberg,Traek af Livet paa Island i Fristats-Tiden, p. 98 n.

8Steller,Beschreibung von dem Lande Kamtschatka, p. 348.

9Nelson, ‘Eskimo about Behring Strait,’ inAnn. Rep. Bur, Ethn.xviii. 292.

10Richardson,Arctic Searching Expedition, ii. 24sq.

11Dawson,op. cit.p. 36. For other instances of rights to women being acquired by duels, see Westermarck,History of Human Marriage, p. 159sqq.; Post,Afrikanische Jurisprudenz, ii. 23sq.(people of Kordofan).

12Riedel,Aborigines of Australia, p. 6.

13Calvert,Aborigines of Western Australia, p. 22.

14Gason, ‘Manners and Customs of the Dieyerie Tribe,’ in Woods,Native Tribes of South Australia, p. 266.

15Roth,Ethnological Studies among the North-West-Central Queensland Aborigines, p. 139sq.

16Azara,Voyages dans l’Amérique méridionale, ii. 16.

17Cremony,Life among the Apaches, p. 293.

18Boas, ‘Central Eskimo,’ inAnn. Rep. Bur. Ethn.vi. 582.

19Richardson,Arctic Searching Expedition, i. 367sq.

20Georgi,Russia, iii. 83.

21Man,Sonthalia and the Sonthals, p. 90.

22Ibid.p. 90.

23Leffler,Om den fornsvenska hednalagen, p. 40sq.(inK. Vitterhets Historie och Antiqvitets Akademiens Månadsblad, 1879, p. 139sq.). Professor Leffler is inclined to believe that this fragment once formed a part of the older Vestgötalag (op. cit.p. 35, in theMånadsblad, p. 134).

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.24Moreover, 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.25The Queensland aborigines are said to be very proud of the wounds they receive in their single combats,26and the duelling Eskimo “consider it cowardly to evade a stroke.”27The duelmay, 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.”

24Cf.Arnesen,op. cit.pp. 150, 166sq.

25According 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).

26Roth,op. cit.p. 140.

27Richardson,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.’”28The natives of the Barito River basin in Borneo have the following ordeal, called theHagalangang:—“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.”29Among 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.30It seems probable that the duel assumed this character already among the pagan Teutons.31Like other ordeals it was resorted to in cases where there was some doubt as to the guilt of the accused.32Toappeal 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.”33I 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.34That the real object of the judicial duel was to correct the abuses of compurgation by oath appears from variousfacts. 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.35Charlemagne 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.36Witnesses 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;37and 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.38Some codes required the witnesses to come into court armed, and to have their weapons blessed on the altar before giving their testimony.39The practice of blessing the arms before the duel took place40was 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.41But 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 intoprayers and perjury becomes an offence against the Deity.

28Crawfurd,History of the Indian Archipelago, iii. 92.

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