CHAPTER XXII

29Schwaner,Borneo, i. 212.

30Dahn 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.

31Patetta,op. cit.p. 179.

32See Unger, ‘Der gerechtliche Zweikampf bei den germanischen Völkern,’ inGöttinger Studien, 1847, Zweite Abtheilung, p. 358sq.

33Esmein,Cours élémentaire du droit français, p. 96sq.

34Lex Baiuwariorum, ii. 1. Jourdan, Decrusy, and Isambert,Recueil général des anciennes lois françaises, ii. 840sqq.Bracton,De Legibus et Consuetudinibus Angliæ, fol. 141 bsq., vol. ii. 438sqq.: “Sic me Deus adjuvet & haec sancta.” Lea,Superstition and Force, p. 166sq.Brunner,Deutsche Rechtsgeschichte, ii. 415. von Amira, ‘Recht,’ in Paul’sGrundriss der germanischen Philologie, iii. 218. Unger,loc. cit.p. 386. Tuchmann, inMélusine, iv. 130.

35Leges Burgundionum, Leges Gundebati, 45.

36Lea,op. cit.p. 118.

37Lex Baiuwariorum, xvii. 2 (xvi. 2).

38Beaumanoir,Coutumes du Beauvoisis, lxi. 58, vol. ii. 398. Lea,op. cit.p. 120sq.Unger,loc. cit.p. 379sqq.

39Lea,op. cit.p. 120.

40Esmein,op. cit.p. 95.

41For the worship of, and swearing by, weapons, see Du Cange, ‘Juramentum super arma,’ inGlossarium ad scriptores mediæ et infimæ Latinitatis, iii. 1616sq.; Grimm,Deutsche Rechtsalterthümer, pp. 165, 166, 896; Pollock,Oxford Lectures, p. 269sq.n. 1; JoyceSocial History of Ancient Ireland, i. 286sq.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.42Various circumstances contributed to its decline and final disappearance. From an early period Councils and popes had declared against it,43but 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.44There 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;45the 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.46Buckle justly observes that, “as the trial by battle became disused, the people, clinging to their old customs, became more addicted to duelling”;47hence the judicial duel may be regarded as the direct parent of the modern duel.48The 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 bodyhe 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.49In England, Cromwell’s Parliament made a determined effort to check the practice.50A Scotch law of 1600 rendered the bare act of engaging in a duel, without license from the king, a capital offence.51About the same period the Spanish Cortes passed a law which subjected all parties to a duel to the penalties of treason.52In 1602, Henry IV. of France issued an edict condemning to death whoever should give or accept a challenge or act as second;53and already several edicts against duelling had been promulgated under Louis XIII.54when, 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.55But 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.56As 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.”57In spite of laws which directly prohibit duelling, or which punish with great severity anyone who kills another in a duel, sometimes even subjectinghim to punishment for murder,58the 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.

42Lea,op. cit.p. 199sqq.In England, however, it was formally abolished by law as late as 1819 (Stephen,History of the Criminal Law of England, i. 249sq.).

43Du Boys,Histoire du droit criminel des peuples modernes, ii. 182. Lea,op. cit.p. 206sqq.

44Robertson,History of the Reign of the Emperor Charles V.i. 357sq.‘Notitia gurpitionis,’ in Bouquet,Recueil des historiens des Gaules et de la France, ix. 729.

45Lea,op. cit.pp. 200-205, 211sq.Unger,loc. cit.p. 392sqq.

46Storr, ‘Duel,’ inEncyclopædia Britannica, vii. 512.

47Buckle,Miscellaneous and Posthumous Works, i. 386.Cf.Bosquett,Treatise on Duelling, p. 79.

48Storr,loc. cit.p. 511.

49Canons and Decrees of the Council of Trent, Session xxv. 19, p. 274sq.

50Pike,History of Crime in England, ii. 192.

51Hume,Commentaries on the Law of Scotland, ii. 281. Erskine,Principles of the Law of Scotland, p. 560.

52Truman,Field of Honor, p. 70.

53Isambert, Taillandier, and Decrusy,Recueil général des anciennes lois françaises, xv. 351sq.

54Ibid.xvi. 21, 106, 146.

55Ibid.xvi. 176, 179.

56Storr,loc. cit.p. 512.

57Robertson,op. cit.i. 66.

58Günther,Die Idee der Wiedervergeltung, iii. 225, n. 467. Stephen,History of the Criminal Law of England, iii. 99sqq.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,59partly 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.60By 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.61But, as a matter of fact, theduel 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”;62and 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.”63But 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.

59Cf.Bentham,Theory of Legislation, p. 299sqq.

60That the modern duel is a special development of Chivalry has been pointed out by Buckle (History of Civilization in England, ii. 136sq.).

61Kames,Sketches of the History of Man, i. 415 n.

62Moore,Full Inquiry into the Subject of Suicide, ii. 276.

63Quoted by Millingen,History of Duelling, i. 300.

CLOSELYrelated 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

1Cf.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.2It 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.3According 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 thenose, 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.4The scale of fines for bodily injuries contained in many of the early Teutonic law-books is minute to a degree.5According to various texts of the Salic law, 100 solidi—that is, a moiety of thewergeld—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 35.6With 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.7In 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.8In early Celtic law different amounts of injury were taxed with a similar affected precision.9Nothing 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.”10After 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

2Post,Afrikanische Jurisprudenz, ii. 61sqq.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. 61sq.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,’ inTenth Census of the United States, p. 105 (Thlinkets).

3Laws of Manu, viii. 286.

4Lane,Manners and Customs of the Modern Egyptians, p. 120. Sachau,Muhammedanisches Recht, p. 764.

5Wilda,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.

6Lex Salica, edited by Hessels, coll. 163-167, 170, 172-177, 179.

7Ibid.col. 100sqq.

8Laws of Æthelbirht, 54.

9Ancient Laws of Ireland, iii. pp. cix., 349.Venedotian Code, iii. 23 (Ancient Laws and Institutes of Wales, p. 151sqq.).Dimetian Code, ii. 17 (ibid.p. 246sqq.).Gwentian Code, ii. 6sq.(ibid.p. 340sq.).

10Ancient Laws of Ireland, iii. 355.

11Ibid.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.

By using violence against their parents, children grossly offend against the duty of filial regard and submissiveness. It is said in the Laws of Ḫammurabi, that a man who has struck his father shall lose his hands.12According to Exodus, “he that smiteth his father, or his mother, shall be surely put to death.”13In Corea the man who strikes his father is beheaded.14On the other hand, parents are allowed to inflict corporal punishment on their children; but this is not the case everywhere—indeed, among many of the lower races children are never, or hardly ever, subject to such punishment.15Among the Australian Dieyerie the children are never beaten, and should any woman violate this law, she is in turn beaten by her husband.16The Efatese, says Mr. Macdonald, “are shocked to see Europeans correcting their children; I never saw an Efatese beating a child.”17The Eskimovisited by Mr. Hall never inflict physical chastisement upon the children; “if a child does wrong—for instance, if it becomes enraged, the mother says nothing to it till it becomes calm. Then she talks to it, and with good effect.”18Among the Tehuelches of Patagonia “the children are indulged in every way, ride the best horses, and are not corrected for any misbehaviour.”19Among the Gaika tribe of the Kafirs, again, parents may inflict corporal punishment on their children, but are fined for causing permanent injuries to their persons, such as the loss of an eye or a tooth.20

12Laws of Ḫammurabi, 195.

13Exodus, xxi. 15.

14Griffis,Corea, p. 236.

15Curr,Recollections of Squatting in Victoria, p. 252 (Bangerang tribe). Angas,Savage Life and Scenes in Australia, i. 94 (tribes of the Lower Murray). Calvert,Aborigines of Western Australia, p. 30sq.Lumholtz,Among Cannibals, p. 192sq.(Northern Queensland aborigines). Kubary, ‘Die Palau-Inseln in der Südsee,’ inJournal des Museum Godeffroy, iv. 56 (Pelew Islanders). Man,Sonthalia and the Sonthals, p. 78. von Siebold,Die Aino auf der Insel Yesso, p. 11. Murdoch, ‘Ethnological Results of the Point Barrow Expedition,’ inAnn. Rep. Bur. Ethn.ix. 417 (Point Barrow Eskimo). Boas, ‘Central Eskimo,’ibid.vi. 566. Richardson, in Franklin,Journey to the Shores of the Polar Sea, p. 68 (Crees). Lumholtz,Unknown Mexico, p. 274 (Tarahumares). Rautanen, in Steinmetz,Rechtsverhältnisse, p. 329 (Ondonga). See also Steinmetz,Ethnologische Studien zur ersten Entwicklung der Strafe, ii. ch. vi. § 2, especially p. 203;Idem, ‘Das Verhältnis zwischen Eltern und Kindern bei den Naturvölkern,’ inZeitschrift für Socialwissenschaft, i. 610sqq.

16Gason, ‘Manners and Customs of the Dieyerie Tribe,’ in Woods,Native Tribes of South Australia, p. 258.

17Macdonald,Oceania, p. 195.

18Hall,Arctic Researches, p. 568.

19Musters,At Home with the Patagonians, p. 197.

20Brownlee, in Maclean,Compendium of Kafir Laws and Customs, p. 118.

The power which the husband possesses over his wife much more commonly implies the right of inflicting pain on her than of punishing her capitally; but even among savages and barbarians the former right is not universally granted to him. The Pelew Islanders do not allow a husband to beat his wife.21Among various Eskimo tribes the women are rarely, if ever, beaten.22Among the Central Eskimo the husband “is not allowed to maltreat or punish his wife; if he does, she may leave him at any time, and the wife’s mother can always command a divorce.”23Many, or most, of the North American Indians consider it disgraceful for a husband to beat his wife.24Among the Kalmucks a man has no right to raise his hand against a woman.25Among the Madis women are never beaten.26Among the Ondonga a man is not allowed to chastise his wife.27Among the Gaika tribe of the Kafirs “a husband may beat his wife for misconduct; but if he should strike out her eye or a tooth, or otherwise maim her, he is fined at the discretion of the Chief.”28According to the native code of Malacca, “a man may beat his wife, but not as he would chastise a slave, and not till blood flows”; if he should do so, he is fined.29According to Muhammedan law, a husband may chastise an obstinate wife, but he must not cause her great suffering, nor inflict on her a wound.30We read in the Laws of Manu:—“A wife, a son, a slave, a pupil, and a younger brother of the full blood, who have committed faults, may be beaten with a rope or a split bamboo, but on the back part of the body only, never on a noble part; he who strikes them otherwise will incur the same guilt as a thief.”31In Europe the idea expressed by the ancient Roman that “he who beats his wife or children lays hands on that which is most sacred and holy,”32was shared neither by the ancient Teutons33nor by mediæval legislators. According to the Jydske Lov, a husband was allowed to chastise his wife with a stick or rod, though not with a weapon; but he had to take care not to break any limb of her body.34In the Coutumes du Beauvoisis it is said that a man may beat his wife if she belies or curses him, or disobeys his “reasonable” commands, or for some other similar reason, though he must not kill or maim her.35Among Russian and South Slavonian36peasants public opinion still permits the husband to inflict corporal punishment on his wife. In Russia “the bridegroom, while he is leading his bride to her future home, gives her from time to time light blows from a whip, saying at each stroke: ‘Forget the manners of thine ownfamily, and learn those of mine.’ As soon as they have entered their bedroom, the husband says to his wife, ‘Take off my boots.’ The wife immediately obeys her husband’s orders, and, taking them off, finds in one of them a whip, symbol of his authority over her person. This authority implies the right of the husband to control the behaviour of his wife, and to correct her every time he thinks fit, not only by words, but also by blows. The opinion which a Russian writer of the sixteenth century … expresses as to the propriety of personal chastisement, and even as to its beneficial effects on the health, is still shared by the country people…. The customary Court seems to admit the use of such disciplinary proceedings by not interfering in the personal relations of husband and wife. ‘Never judge the quarrel of husband and wife,’ is a common saying, scrupulously observed by the village tribunals, which refuse to hear any complaint on the part of the aggrieved woman, at least so long as the punishment has not been of such a nature as to endanger life or limb.”37

21Kubary, ‘Die Palau-Inseln,’ inJour. des Museum Godeffroy, iv. 43.

22King, inJour. Ethn. Soc.i. 147.Cf.Murdoch,loc. cit.p. 414.

23Boas, inAnn. Rep. Bur. Ethn.vi. 579.

24Waitz,Anthropologie der Naturvölker, iii. 101.Cf.Powers,Tribes of California, p. 178 (Gallinomero).

25Liadov, inJour. Anthr. Inst.i. 405.

26Ratzel,History of Mankind, iii. 40.

27Rautanen, in Steinmetz,Rechtsverhältnisse, p. 329.

28Brownlee, in Maclean,op. cit.p. 117.

29Newbold,British Settlements in the Straits of Malacca, ii. 311sq.

30Sachau,Muhammedanisches Recht, pp. 10, 44, 849.

31Laws of Manu, viii. 299sq.

32Plutarch,Cato Major, xx. 3.

33Nordström,Bidrag till den svenska samhällsförfattningens historia, ii. 61sq.Stemann,op. cit.p. 323sq.

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