Chapter 16

70Roth,op. cit.p. 141.

An act of individual or family revenge is by itself, of course, an expression of private, not of public, feelings—of revenge, not of moral indignation. But the case is different with thecustomof revenge. We shall see in a followingchapterthat blood-revenge is regarded not only as a right, but, very frequently, as a duty incumbent upon the relatives of the slain person. So, also, revenge may be deemed a duty in cases where there is no blood-guiltiness. Among the Australian Geawe-gal tribe, for instance, the offender, according to the magnitude of his offence, was to receive one or more spears from men who were relatives of the deceased person; or the injured man himself, when he had recovered strength, might discharge the spears at the offender. And our authority adds, “Obedience to such laws was never withheld, but would have been enforced, without doubt, if necessary, by the assembled tribe.”71The obligatory character of revenge implies that its omission is disapproved of. It is of course the man on whom the duty of vengeance is incumbent that is the immediate object of blame, when this duty is omitted; and the blame may partly be due to contempt, especially when there is a suspicion of cowardice. But behind the public censure there is obviously a desire to see the injurer suffer. Instances may be quoted in which the society actually assists the avenger, in some way or other, in attaining his object. Speaking of the Fuegians, M. Hyades observes:—“Nous avons entendu parler d’individus coupables de meurtre sur leur femme, par exemple, et qui, poursuivis par tout un groupe de familles, finissaient, quelquefois un an ou deux après leur crime, par tomber sous les coups des parents de la victime. Il s’agit là plutôt d’un acte de justice que d’une satisfaction de vengeance. Nous devons faire remarquer en outre que, dans ces cas, le meurtrier est abandonné de tous, et qu’il ne peut se soustraire que pendant un tempsrelativement assez court au châtiment qui le menace.”72Amongst the Central Eskimo, who have “no punishment for transgressors except the blood vengeance,” a man has committed a murder or made himself odious by other outrages, “he may be killed by any one simply as a matter of justice. The man who intends to take revenge on him must ask his countrymen singly if each agrees in the opinion that the offender is a bad man deserving death. If all answer in the affirmative he may kill the man thus condemned, and no one is allowed to revenge the murder.”73Among the Greenlanders, in cases of extreme atrocity, the men of a village have been known to make common cause against a murderer, and kill him, though it otherwise is the business of the nearest relatives to take revenge.74It is also noteworthy that, among the crimes which in savage communities are punished by the community at large, incest is particularly prominent. The chief reason for this I take to be the absence of an individual naturally designated as the avenger.

71Fison and Howitt,op. cit.p. 282.

72Hyades and Deniker,Mission scientifique du Cap Horn, vii. 240sq.

73Boas, ‘Central Eskimo,' inAnn. Rep. Bur. Ethn.vi. 582.

74Nansen,Eskimo Life, p. 163.

Thus public indignation displays itself not only in punishment, but, to a certain extent, in the custom of revenge. In both cases the society desires that the offender shall suffer for his deed. Strictly speaking, the relationship between the custom of revenge and punishment is not, as has been often supposed, that between parent and child. It is a collateral relationship. They have a common ancestor, the feeling of public resentment.

But whilst public opinion demands that vengeance shall be exacted for injuries, it is also operative in another way. Though in some cases the resentment may seem to outsiders to be too weak or too much checked by other impulses, it may in other cases appear unduly great. As a matter of fact, we frequently find the practice of revenge being regulated by a rule which requires equivalence between the injury and the suffering inflicted in return forit. Sometimes this rule demands that only one life shall be taken for one;75sometimes that a death shall be avenged on a person of the same rank, sex, or age as the deceased;76sometimes that a murderer shall die in the same manner as his victim;77sometimes that various kinds of injuries shall be retaliated by the infliction of similar injuries on the offender.78This strict equivalence is not characteristic of resentment as such.79There is undoubtedly a certain proportion between the pain-stimulus and the reaction; other things being equal, resentment increases in intensity along with the pain by which it is excited. The more a person feels offended, the greater is his desire to retaliate by inflicting counter-pain, and the greater is the pain which he desires to inflict. But resentment involves no accurate balancing of suffering against suffering, hence there may be a crying disproportion between the act of revenge and the injury evoking it.80As Sir Thomas Browne observes, a revengeful mind “holds no rule in retaliations, requiring too often a head for a tooth, and the supreme revenge for trespasses, which a night’s rest should obliterate.”81If, then, the rule ofequivalence is not suggested by resentment itself, this rule must be due to other factors, which intermingle with resentment, and help, with it, to determine the action. One of these factors, I believe, is self-regarding pride, the desire to pull down the humiliating arrogance of the aggressor naturally suggesting the idea of paying him back in his own coin; and it seems probable that the natural disposition to imitate, especially in cases of sudden anger, acts in the same direction. But besides this qualitative equivalence between injury and retaliation, thelex talionisrequires, in a rough way, quantitative equivalence, and this demand has no doubt a social origin. If the offender is a person with whose feelings men are ready to sympathise, their sympathy will keep the desire to see him suffer within certain limits; and if, under ordinary circumstances, they tend to sympathise equally with both parties, the injurer and the person injured, and, in consequence, confer upon these equal rights, they will demand a retaliation which is only equal in degree to the offence. By suffering a loss the offender compensates, as it were, for the loss which he has inflicted; and when equal regard is paid to his feelings and to those of his victim, it is deemed just that the loss required of him as a compensation should be equivalent to the loss for which he compensates, anything beyond equivalence being regarded as undeserved suffering. If this explanation is correct, the rule of equivalence must originally have been restricted to offences within the social group; for, according to early custom and law, only members of the same society have equal rights. In speaking of the tit-for-tat system prevalent among the Guiana Indians, Sir E. F. Im Thurn expressly says, “Of course all this refers chiefly to the mutual relations of members of the same tribe.”82And when we find savages acting according to the same principle in their relations to other tribes, the reason for this may be sought partly in the strong hold which that principle has taken of their minds, and partly in the dangers accompanying intertribal revenge,which make it desirable to restrict it within reasonable limits.

75Krause,Tlinkit-Indianer, p. 245sq.Macfie,Vancouver Island and British Columbia, p. 470. Foreman,Philippine Islands, p. 213 (Negrito and Igorrote tribes in the province of La Isabela). Low,Sarawak, p. 212 (Dyaks). von Langsdorf,Voyages and Travels, i. 132 (Nukahivans).

76Jagor,Travels in the Philippines, p. 213 (Igorrotes). Blumentritt, quoted by Spencer,Principles of Ethics, i. 370sq.(Quianganes of Luzon). Munzinger,Ostafrikanische Studien, p. 243 (Marea).Koran, ii. 173.

77von Martius,op. cit.i. 129 (Brazilian Indians). Wallace,Travels on the Amazon, p. 499 (Uaupés). Schoolcraft,Indian Tribes of the United States, iii. 246 (Dacotahs). Steller,Kamtschatka, p. 355; Hickson,A Naturalist in North Celebes, p. 198 (Sangirese of Manganitu). Fraser,Journal of a Tour through Part of the Himālā Mountains, p. 339 (Butias). Ellis,History of Madagascar, i. 371. Munzinger,op. cit.p. 502 (Barea and Kunáma). de Abreu,Canary Islands, p. 27 (aborigines of Ferro).

78Im Thurn,op. cit.p. 213sq.(Guiana Indians).Glimpses of the Eastern Archipelago, p. 86 (Bataks). Arbousset and Daumas,Tour to the North-East of the Colony of Good Hope, p. 67 (Mantetis). Munzinger,op. cit.p. 502 (Barea and Kunáma). Post,Afrikanische Jurisprudenz, p. 27 (various other African peoples), de Abreu,op. cit.p. 71 (aborigines, of Gran Canaria).

79Cf.Tissot,Le droit pénal, i. 226; Steinmetz,Ethnol. Studien zur ersten Entwicklung der Strafe, i. 401; Makarewicz,op. cit.p. 13.

80von Martius,op. cit.i. 128 (Brazilian aborigines). Calder, inJour. Anthr. Inst.iii. 21 (Tasmanians). Forbes,A Naturalist’s Wanderings in the Eastern Archipelago, p. 473 (Timorese). Sarasin,Forschungen auf Ceylon, iii. 539 (Veddahs). Jacob,Das Leben der vorislâmischen Beduinen, p. 144sq.

81Browne,Christian Morals, iii. 12, p. 94.

82Im Thurn,op. cit.p. 214.

The regulations to which the practice of revenge is subject, help us to understand the transition from revenge to punishment, and the establishment of a special judicial authority. As long as retaliation is in the hands of private individuals, there is no guarantee, on the one hand, that the offender will have to suffer, on the other hand, that the act of retaliation will be sufficiently discriminate.

The injured party may be too weak, or otherwise unable, to avenge himself. His readiest course, then, is to appeal to the chief for help. The chief, on his part, has an interest in interfering—he may of course expect a handsome reward for his assistance,83—and, in so far as the community at large wishes that the offender shall suffer, the chief may even be bound to interfere. Thus in the Sandwich Islands, the family or the friends of an injured person—who in cases of assault or murder were by common consent justified in taking revenge—used to appeal to the chief of the district or to the king, when they were too weak to attack the offender themselves.84Among the Wanyoro, according to Emin Pasha, should the murderer escape, the nearest relatives of the murdered man apply to the chief of the tribe to procure the punishment of the culprit.85The Indians of Brazil, when offended, sometimes bring their cause before the chief; but they do it seldom, since they consider it disgraceful for a man not to be able to avenge himself.86The judicial authority granted to the Basuto chief “also insures justice to foreigners, and to individuals who, having no relations, are deprived of their natural defenders and avengers.”87In ancient Greece, in early times, special care was taken by the State for the protection of the weak and helpless, who otherwise had been unavenged.88In the Middle Ages, thepoor and the weak were placed under the King’s protection; the intervention of royal justice, as Du Boys observes, “apparaissait comme un bienfait pour les faibles et un secours pour les opprimés.”89

83Steinmetz,Rechtsverhältnisse, p. 311.Cf.Brunner,Deutsche Rechtsgeschichte, i. 165.

84Ellis,Tour through Hawaii, p. 429.

85Emin Pasha in Central Africa, p. 86.

86von Martius,op. cit.i. 132.

87Casalis,op. cit.p. 226.

88Leist,Græco-italische Rechtsgeschichte, p. 372.

89Du Boys,Histoire du droit criminel de l’Espagne, p. 237.

Whilst resentment on behalf of injuries inflicted upon persons who are unable to avenge themselves has thus, to some extent, contributed towards the establishment of a central judicial and executive authority, the sympathy naturally felt for the object of an improper and immoderate revenge undoubtedly tended to bring about a similar result. The same feeling which checked indiscriminate revenge by establishing the rule of strict equivalence, restricted it once more, and in a more effective way, by referring the case to a judge who was less partial, and more discriminate, than the sufferer himself or his friends. Speaking of the feuds of the Teutons, Kemble remarks, “Setting aside the loss to the whole community which may arise from private feud, the moral sense of men may be shocked by its results: an individual’s own estimate of the satisfaction necessary to atone for the injury done to him, may lead to the commission of a wrong on his part, greater than any he hath suffered; nor can the strict rule of ‘an eye for an eye, and a tooth for a tooth,’ be applied where the exaction of the penalty depends upon the measure of force between appellant and defender.”90In the Island of Bali the judge steps in between the prosecutor and the person whom he pursues, “so as to restrain the indiscriminate animosity of the one, and to determine the criminality of the other.”91Crawfurd, in his account of native customs in the Malay Archipelago, says that “the law even expressly interdicts all interference when there appears a character of fairness in the quarrel.”92A Karen, we are told, always thinks himself right in taking the law into his own hands, this being the custom of the country, and “he is never interfered with, unless he is guilty of someact contrary to Karen ideas of propriety, when the elders and the villagers interfere and exercise a check upon him.”93Among the Basutos the authority of the chief is stated to be “sufficiently respected to protect criminated persons, until their cases have been lawfully examined.”94Among the Californian Gallinomero the avenger of blood has his option between money and the murderer’s life; “but he does not seem to be allowed to wreak on him a personal and irresponsible vengeance,” the chief taking the criminal and executing the punishment.95

90Kemble,Saxons in England, i. 268sq.

91Raffles,History of Java, ii. p. ccxxxvii.

92Crawfurd,History of the Indian Archipelago, iii. 120.

93Mason, inJour. Asiatic Soc. Bengal, xxxvii. pt. li. 145.Cf.MacMahon,Far Cathay and Farther India, p. 188.

94Casalis,op. cit.p. 226.

95Powers,Tribes of California, p. 177.

Besides the desire that the offender shall suffer and the desire that his suffering shall correspond to his guilt, there is a third factor of importance which has contributed to the substitution of punishment for revenge and to the rise of a judicial organisation. For every society it is a matter of great consequence that there should be peace between its various members. Though the system of revenge helps to keep down crime,96it also has a tendency to cause disturbance and destruction. Any act of vengeance which goes beyond the limits fixed by custom is apt to call forth retaliation in return. Among the Ossetes, says Baron von Haxthausen, “if the retaliation does not exceed the original injury the affair terminates; but if the wound given is greater than the one received, the feud begins afresh from the other side.”97The custom of blood-revenge certainly does not imply that the avenger of unjustifiable homicide may himself be a proper object of retaliation;98but in the absence of a tribunal it may beno easy thing to decide the question of guilt, and, besides, the dictate of custom may be overruled by passion. As a matter of fact, the blood-feud often consists of a whole series of murders, the revenge itself calling forth a new act of redress, and so on, until the state or hostility may become more or less permanent.99In the long run this will prove injurious both to the families implicated in the feud and to society as a whole, and some method of putting a stop to the feud will readily be adopted. One such method is to substitute the payment of blood-money for revenge; another is to submit the cause to an authority invested with judicatory power. Casalis tells us that the Basutos are often heard to say, “If we were to revenge ourselves, the town or community would soon be dispersed”; and he adds that the instinctive fear of the disorders that might arise from the exercise of individual law has induced them to allow the chief of the tribe a certain right over the person of every member of the community.100

96Taylor,Te Ika a Maui, p. 96 (Maori). Im Thurn,op. cit.pp. 213, 330 (Guiana Indians). Burckhardt,Bedouins and Wahábys, p. 84,sq.; Blunt,Bedouins of the Euphrates, ii. 207; Layard,Discoveries in the Ruins of Nineveh and Babylon, p. 305sq.(Bedouins). Kohl,Reise nach Istrien, i. 409sq.(Montenegrines). Stephen,History of the Criminal Law of England, i. 60 (Anglo-Saxons). Nordström,Svenska samhälls-författningens historia, ii. 228 (ancient Scandinavians). Steinmetz,Ethnol. Studien zur ersten Entwicklung der Strafe, ii. 125sqq.

97von Haxthausen,Transcaucasia, p. 411.

98Among the aborigines of Western Victoria, when life has been taken for life, the feud is ended (Dawson,op. cit.p. 70). Among the Greenlanders, if the victim of revenge “be a notorious offender, or hated for his bloody deeds, or if he have no relations, the matter rests”; but more frequently the act of vengeance costs the avenger himself his life (Cranz,op. cit.i. 178). Among the Bedouins, “if the family of the man killed should in revenge kill two of the homicide’s family, the latter retaliate by the death of one. If one only be killed, the affair rests there and all is quiet; but the quarrel is soon revived by hatred and revenge” (Burckhardt,Bedouins and Wahábys, p. 86). In his book,Das Leben der vorislâmischen Beduinen, Dr. Jacob likewise observes (p. 144):—“Irrtümlich ist die Ansicht, dass Blut immer neues Blut fordere. Was für einen Getödteten ein Anderer erschlagen, so galt die Sache in der Regel damit für erledigt und abgetan.”Cf.Achelis,Moderne Völkerkunde, p. 407, n. 1.

99Nelson, ‘Eskimo about Bering Strait,’ inAnn. Rep. Bur. Ethn.xviii. 293. Miklosich. ‘Blutrache bei den Slaven,’ inDenkschriften d. kaiserl. Akademie d. Wissensch. Phil.-hist. Classe, Vienna, xxxvi. 132; &c.

100Casalis,op. cit.p. 225.Cf.Boyle,Adventures among the Dyaks of Borneo, p. 217; Marsden,op. cit.p. 249sq.(Rejangs).

As may be expected, it is only by slow degrees that revenge has yielded to punishment, and the private avenger has been succeeded by the judge and the public executioner of his sentence. Among many savages the chief is said to have nothing whatever to do with jurisdiction.101Amongothers he acts merely as an adviser, or is appealed to as an arbiter;102or the injured party may choose between avenging himself and appealing to the chief for redress;103or the judicial power with which the chief is invested is stated to be more nominal than real.104It is also interesting to note that in several cases the injured party or the accuser acts as executioner, but not as judge.

101Keating,Expedition to the Source of St. Peter’s River, i. 123 (Potawatomis). Richardson,Arctic Searching Expedition, ii. 27 (Chippewyans), Carver,Travels, p. 259 (Naudowessies). Dobrizhoffer,Account of the Abipones, ii. 163; &c.

102Lewis and Clarke,Travels to the Source of the Missouri River, p. 306sq.(Shoshones). Powers,Tribes of California, p. 45 (Karok and Yurok). Dunbar, ‘Pawnee Indians’ inMagazine of American History, iv. 261. Arbousset and Daumas,op. cit.p. 67 (Mantetis). Ellis,Yoruba-speaking Peoples of the Slave Coast, p. 300 (Tshi- and Ew̔e-speaking peoples of the African West Coast). Burckhardt,Bedouins and Wahábys, pp. 68, 70. Blunt,op. cit.ii. 232sq.(Bedouins of the Euphrates). von Haxthausen,Transcaucasia, p. 415 (Ossetes).

103Ellis,Tour through Hawaii, p. 429. Williams and Calvert,Fiji and the Fijians, p. 23. Forbes,A Naturalist’s Wanderings in the Eastern Archipelago, p. 473 (Timorese).

104Falkner,Description of Patagonia, p. 123. Anderson,Lake Ngami, p. 231 (Damaras).

Thus among some Australian tribes, “a man accused of a serious offence gets a month’s citation to appear before the tribunal, on pain of death if he disobeys. If he is found guilty of a private wrong, he is painted white, and made to stand out at fifty paces in front of the accuser and his friends, all fully armed. They throw at him a shower of spears and ‘bumarangs,’ from which he protects himself with a light shield.”105Among the Aricara Indians of the Missouri, who, for the most part, punish murder with death, the nearest relative of the murdered man was deputed by the council to act the part of executioner.106With reference to the natives of Bali, Raffles says that “in the execution of the punishment awarded by the court there is this peculiarity, that the aggrieved party or his friends are appointed to inflict it.”107In some parts of Afghanistan, “if the offended party complains to the Sirdar, or ifhehears of a murder committed, he first endeavours to bring about a compromise, by offering the Khoon Behau, or price of blood; but if the injured party is inexorable, the Sirdar lays the affair before the King, who orders the Cauzy to try it; and, if the criminal is convicted, gives him up to be executed by the relations of the deceased.”108Among the peoples round Lake Nyassa and Tanganyika and among the Bantu tribes generally, “when a murderer is caught and proved guilty he is given overto the relatives of the person murdered, who have power to dispose of him as they choose.”109A similar practice prevails among the Mishmis,110Bataks,111and Kamchadales.112It was also recognised by early Slavonic,113Teutonic, and English codes.114According to the provisions of a code granted so late as 1231, by the Abbey of St. Bertin to the town of Arques, when a man was convicted of intentional homicide, he was handed over to the family of the murdered person, to be slain by them.115

105Fraser,Aborigines of New South Wales, p. 40sq.

106Bradbury,Travels in the Interior of America, p. 168.

107Raffles,op. cit.ii. p. ccxxxvii.

108Elphinstone,Kingdom of Caubul, ii. 105sq.

109Macdonald, inJour. Anthr. Inst.xxii. 108.

110Cooper,Mishmee Hills, p. 238.

111von Brenner,op. cit.p. 212.

112Georgi,Russia, iii. 137.

113Macieiowski,Slavische Rechtsgeschichte, ii. 127.

114Wilda,Strafrecht der Germanen, p. 167.Lex Salica, 68.Laws of Cnut, i. 53.Leges Henrici I.lxxi. 1.

115Leges villæ de Arkes ab abbate S. Bertini concessæ, 28 (d’Achery,Spicilegium, iii. 608).

But although, in innumerable cases, punishment and judicial organisation have succeeded a previous system of revenge, and thus are products of social development, their existence or non-existence among a certain people is no exact index to the general state of culture which that people has attained. Even among low savages we have noticed instances of punishments which are inflicted by the community as a whole, as also by special judicial authorities. On the other hand, we are taught by the history of European and Oriental nations, that the system of revenge is not inconsistent with a comparatively high degree of culture.116We can now see the reason for this apparent anomaly. In a small savage community, all the members of which are closely united with each other, an injury inflicted upon one is readily felt by all. The case may be different in a State consisting of loosely-connected social components, which, though forming a political unity, have little communication between themselves, and take no interest in each other’s private dealings. And, whilst in the smaller society public resentment is thus more easily aroused, such a society also stands in more urgent need of internal peace.

116Seeinfra, onBlood-revenge.

Our assumption that punishment is, in the main, an expression of public indignation, is opposed to another theory, according to which the chief object of punishment, not only ought to be, but actually is, or has been,to prevent crime by deterring people from committing it. We are even told that punishment, inflicted for such a purpose, is, largely, at the root of the moral consciousness; that punishment is not the result of a sense of justice, but that the sense of justice is a result of punishment; that, by being punished by the State, certain acts gradually came to be regarded as worthy of punishment, in other words, as morally wrong.117

117Rée,Ursprung der moralischen Empfindungen, p. 45sqq.Idem,Entstehung des Gewissens, p. 190sqq.

There are certain facts which seem to support the supposition that punishment has, to a large extent, been intended to act as a deterrent. We find that among various semi-civilised and civilised peoples the criminal law has assumed a severity which far surpasses the rigour of thelex talionis.

Speaking of the Azteks, Mr. Bancroft observes that “the greater part of their code might, like Draco’s, have been written in blood—so severe were the penalties inflicted for crimes that were comparatively slight, and so brutal and bloody were the ways of carrying those punishments into execution.”118The punishment of death was inflicted on the man who dressed himself like a woman, on the woman who dressed herself like a man,119on tutors who did not give a good account of the estates of their pupils,120on those who carried off, or changed, the boundaries placed in the fields by public authority;121and should an adulterer endeavour to save himself by killing the injured husband, his fate was to be roasted alive before a slow fire, his body being basted with salt and water that death might not come to his relief too soon.122Nor did the ancient Peruvian code economise human suffering by proportioning penalties to crimes; the punishment most commonly prescribed by it was death.123The penal code of China, though less cruel in various respects than the European legislation of the eighteenth century, awards death for a third and aggravated theft, for defacing the branding inflicted for former offences,124and for privately casting copper coin;125whilst for the commission of the most heinous crimesthe penalty is “to be cut into ten thousand pieces,” which appears to amount, at least, to a license to the executioner to aggravate and prolong the sufferings of the criminal by any species of cruelty he may think proper to inflict.126In Japan, before the revolution of 1871, “the punishments for crime had been both rigorous and cruel; death was the usual punishment, and death accompanied by tortures was the penalty for aggravated crimes.127According to the Mosaic law, death is inflicted for such offences as breach of the Lord’s day,128going to wizards,129eating the fat of a beast of sacrifice,130eating blood,131approaching unto a woman “as long as she is put apart for her uncleanness,”132and various kinds of sexual offences.133The laws of Manu provide capital punishment for those who forge royal edicts and corrupt royal ministers;134for those who break into a royal store-house, an armoury, or a temple, and those who steal elephants, horses, or chariots;135for thieves who are taken with the stolen goods and the implements of burglary;136for cut-purses on the third conviction;137whilst a wife, who, proud of the greatness of her relatives or her own excellence, violates the duty which she owes to her lord, shall be devoured by dogs in a place frequented by many, and the male offender shall be burnt on a red-hot iron bed.138

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