Chapter 46

50Loskiel,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.51Such 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.”52Among 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 avengerlicks 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.53Mr. Trumbull even goes so far as to believe that, among the Hebrews, the primal idea of thegoel’s mission was not to wreak vengeance, but “to restore life for life, or to secure the adjusted equivalent of a lost life.”54But 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.

51Cf.Trumbull,Blood Covenant, p. 126sqq.

52Burckhardt,Travels in Nubia, p. 356.

53Cf.Goldziher, in Robertson Smith,Kinship and Marriage in Early Arabia, p. 296 n. 1.

54Trumbull,Blood Covenant, pp. 260, 263.

Sometimes the manslayer, instead of being killed, is adopted as a member of the family of his victim.55Among 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 thekharouba, orgens, of the deceased.56Among 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 Amer57and Bogos.58In other cases slaves are given to the relatives of the slain in order to atone for the guilt;59but most commonly the compensation consists of cattle, money, or other property.

55See Steinmetz,Studien, i. 410sqq., 439sqq.; Kovalewsky, inRevue Internationale de Sociologie, ii. 87sq.

56Hanoteau and Letourneux,La Kabylie, iii. 68sq.

57Munzinger,Ostafrikanische Studien, p. 322.

58Idem,Die Sitten und das Recht der Bogos, p. 83.Cf.Kohler,Nachwort zu Shakespeare vor dem Forum der Jurisprudenz, p. 15sq.

59Squier, ‘Archæology and Ethnology of Nicaragua,’ inTrans. 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 inflictedupon them, but also appeases their wounded feelings.60The 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.61Sometimes 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.”62Compensation, 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.

60Rée,Entstehung des Gewissens, p. 57sqq.Steinmetz,Studien, i. 472sq.

61Cf.Miklosich,loc. cit.p. 148; Kohl,op. cit.i. 426, 436 (Montenegrines and Albanians).

62Morgan,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.63The 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.64In 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 dekifaeldicïn: le meurtrier se livre spontanément au défunt, qui, en la personne de son descendant, lui pardonne son offense.”65In 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.”66In other instances the dead is perhaps supposed to be appeased by the mere compensationpaid to his descendants, or his feelings are simply disregarded when they collide with the interests of the living.67Generally speaking, the question whether compensation is to be accepted or not, must be settled by a balancing of advantages and drawbacks.

63For the influence of wealth on the practice of composition, see Steinmetz,Studien, i. 427sqq., 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 (inA 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.”

64Schmidt,Ethik der alten Griechen, ii. 125sqq.Rohde,Psyche, pp. 8sqq., 238.

65Kovalewsky,Coutume contemporaine et loi ancienne, p. 238.

66Macdonald,Africana, i. 170sq.

67Cf.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,68Marea,69Kabyles of Jurjura,70and 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 theTharcommuted 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.”71Among the mountains of Daghestan72and in parts of Albania73it is likewise considered disgraceful to accept compensation for the murder of a relative.

68Munzinger,Ostafrikanische Studien, p. 321sq.

69Ibid.p. 242.

70Hanoteau and Letourneux,op. cit.iii. 61sq.

71Burckhardt,Notes on the Bedouins and Wahábys, p. 178,Cf.Burton,Pilgrimage to Al-Madinah and Meccah, ii. 103.

72Kovalesky, inRevue internationale de Sociologie, ii. 87.

73Hahn,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.”74Among the Somals, “after the equivalent is paid, themurderer or one of his clan, contrary to the spirit of El Islam, is generally killed by the kindred or tribe of the slain.”75Among the Berbers (Shluḥ) 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 payddit, 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

74Sproat,Scenes and Studies of Savage Life, p. 153.

75Burton,First Footsteps in East Africa, p. 87 n. †.Cf.Paulitschke,Ethnographie Nordost-Afrikas, p. 263.

76von 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.77Among the Thlinkets “the murder of a relative can be atoned for by a certain number of blankets.”78Among the Californian Karok the murder of a man’s nearest relative may be compounded for by the payment of money.79The Kutchin demand blood-money for a slain kinsman, but avenge his death should such be denied.80Among 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.81In the Malay Archipelago, whilst the more ferocious tribesinsist, in many situations, upon a literal compliance with the law of retaliation, other tribes constantly accept a pecuniary compensation.82Among the majority of the Bedawee tribes of Egypt compensation is generally taken in commutation for vengeance;83and 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.84Among the Wadshagga, again, the acceptance of blood-money is obligatory.85The Vendîdâd forbids the followers of Zoroastrianism to refuse the compensation offered for a deed of bloodshed.86Among 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.87Among 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

77Gibbs, ‘Tribes of Western Washington and Northwestern Oregon,’ inContributions to North American Ethnology, i. 189.

78Petroff,loc. cit.p. 165.

79Powers,Tribes of California, p. 21.

80Richardson,Arctic Searching Expedition, i. 386.

81Hunter,Annals of Rural Bengal, ii. 76. Macpherson,Memorials of Service in India, p. 82.

82Crawfurd,History of the Indian Archipelago, iii. 111.

83Lane,Manners and Customs of the Modern Egyptians, p. 120.

84Burckhardt,Notes on the Bedouins and Wahábys, p. 87.

85Merker, quoted by Kohler, inZeitschr. f. vergl. Rechtswiss.xv. 56.

86Geiger,op. cit.ii. 34.

87Ancient Laws of Ireland, iii. p. lxxx.

88Keyser,op. cit.ii. pt. ii. 95. Pollock and Maitland,op. cit.i. 46sq.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,89orthe 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.90But 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.91Of 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.92Among the Dooraunees, in Western 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 of price of blood.”93The 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

89Cf.Vámbéry,Das Türkenvolk, p. 305sq.(Kirghiz); Munzinger,Ostafrikanische Studien, p. 500 (Barea and Kunáma).

90E.g., the Fuegians (Bridges, inSouth American Missionary Magazine, xiii. 152.Idem, inA Voice for South America, xiii. 207).

91von Martius,Beiträge zur Ethnographie Amerika’s, i. 130.Idem, inJour. Roy. Geographical Soc.ii. 199.

92Modigliani,Viaggio a Nías, p. 496.

93Elphinstone,Kingdom of Caubul, ii. 105sq.

94Kemble,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 withthe 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.”95When the central power of jurisdiction is firmly established, the rule of life for life regains its sway.96Thus, 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,97the Brâhmanas of India,98or, 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.99But 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

95Marsden,History of Sumatra, p. 246.

96Cf.Brunner,Deutsche Rechtsgeschichte, ii. 599sq.(Teutonic peoples).

97Réville,Hibbert Lectures on the Native Religions of Mexico and Peru, p. 151.

98Laws of Manu, viii. 380sq.

99Stephen,History of the Criminal Law of England, i. 458sqq.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. 631sq.).

100Supra,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, inJour. 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 involveno blood-guiltiness, especially adultery;101and we hear of capital punishment being inflicted not only for homicide, but for treason,102incest,103adultery,104witchcraft,105sacrilege,106theft,107and other offences.108We 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.109And 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

101Supra,p. 290sqq.Infra, on Sexual Morality. Post,Studien zur Entwicklungsgeschichte des Familienrechts, p. 134sq.

102Supra,p. 189.

103Infra, onSexual Morality.

104Supra,p. 189.Infra, onSexual Morality.

105Supra,p. 189sq.

106Supra,p. 197.

107Infra, on theRight of Property.

108Supra,p. 195.

109Supra,p. 186sqq.

110Supra,ch. vii.

But whilst, among peoples of culture, capital punishment has been inflicted far beyond the limits of thelex 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.”111Nor does Confucius seem to have been in favour of capital punishment. When ChîK’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.”112The early Christians generally condemned the punishment of death, as well as all other forms of shedding human blood;113but 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.114Later 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.115And whilst ostentatiously sticking to the principle, “Ecclesia non sitit sanguinem,”116the 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.117In modern times the views of the early Christians regarding capital punishment have been revived by the Quakers;118but the powerful movement in favour of its abolition chiefly derives its origin from the writings of Beccaria and the French Encyclopedists.

Back to Index Next