Chapter 49

34Jydske Lov, ii. 82.

35Beaumanoir,Coutumes du Beauvoisis, lvii. 6, vol. ii. p. 333: “Il loist bien à l’homme batre se feme, sans mort et sans mehaing, quant ele le meffet; si comme quant ele est en voie de fere folie de son cors, ou quant ele dement son baron ou maudist, ou quant ele ne veut obeir à ses resnables commandemens que prode feme doit fere: en tel cas et en sanllables est il bien mestiers que li maris soit castierres de se feme resnablement…. Li maris le doit castier et repenre selonc toutes les manieres qu’il verra que bon sera por li oster de tel visse, exepté mort ou mehaing.”

36Krauss,Sitte und Branch der Südslaven, p. 526.

37Kovalewsky,Modern Customs and Ancient Laws of Russia, p. 44sq.Cf.Meiners,Vergleichung des ältern und neuern Russlandes, ii. 167sq.;Idem,History of the Female Sex, i. 160.

It seems that, wherever slavery exists, the master has a right to inflict corporal punishment on his slave, even though he be forbidden to deprive him of any of his limbs. According to the Chinese Penal Code, the master, or relations of the master of a guilty slave, may chastise such slave in any degree short of occasioning his death, without being liable to any punishment;38whereas “all slaves who are guilty of designedly striking their masters, shall, without making any distinction between principals and accessories, be beheaded.”39Among the Hebrews, if a man by blows destroyed an eye or a tooth, or any other member belonging to his man-servant or maid-servant, he was bound to let the injured person go free, though full retribution was legally ordained for bodily injuries done to free Israelites.40In the North American Slave States andin the colonies of all European Powers the master could inflict any number of blows upon his slave, but if he mutilated him he was fined or subjected to a very moderate term of imprisonment.41

38Ta Tsing Leu Lee, sec. cccxiv. p. 340.

39Ibid.sec. cccxiv. p. 338.

40Exodus, xxi.sqq.

41‘Negro Act’ of 1740, § 37, in Brevard,Digest of the Public Statute Law of South Carolina, ii. 241. Stephen,Slavery of the British West India Colonies, i. 36sq.Edwards,History of the British West Indies, ii. 192.

The maltreatment of another person’s slave has, even by civilised legislators, been regarded as an injury done to the master rather than to the slave. According to Muhammedan law, the fine imposed on a free person for injuring a slave varies according to the value of the slave.42In the Institutes of Justinian it is said that, “if a man were to flog another man’s slave in a cruel manner, an action would, in this case, lie against him,” but that the master has no right of action against a person who has struck the slave with his fist.43In the Negro Act of 1740 it was prescribed that, if a slave was beaten by any person who had not sufficient cause or lawful authority for so doing, and if he or she was maimed or disabled by such beating from performing his or her work, the offender should pay to the owner of the slave “the sum of 15 shillings current money per diem, for every day of his lost time, and also the charge of the cure of such slave.”44But if the beating of the slave caused no loss of service to his master, the offender was not, as a rule, punished by law. A decision of the Supreme Court of Maryland established expressly the law to be, in that State, that trespass would not lie by a master for an assault and battery on his slave, unless it were attended with a loss of service.45If, on the otherhand, the offender was a slave and his victim a white man, the injury was regarded in a very different light. We read in an act of Georgia passed in 1770:—“If any slave shall presume to strike any white person, such slave … shall … for the second offence suffer death: But in case any such slave shall grievously wound, maim, or bruise any white person, though it shall be only the first offence, such slave shall suffer death.”46And to offer violence, to strike, attempt to strike, struggle with, or resist any white person, was, even by the latest meliorating laws issued in the British Colonies, declared to be a crime in a slave which, if the white person had been wounded or hurt, and in some islands even without that condition, should subject the offender to death, dismemberment, or other severe penalties.47We read in one of the codes of ancient Wales:—“If a freeman strike a bondman, let him pay him twelve pence…. If a bondman strike any freeman, it is just to cut off his right hand, or his right foot.”48According to Chinese law, a freeman striking a slave shall “be punished less severely by one degree than in the ordinary cases of the same offence”; whereas “a slave striking a freeman shall, in proportion to the consequences, be punished one degree more severely than is by law provided in similar cases between equals.”49

42Lane,Manners and Customs of the Modern Egyptians, p. 120.

43Institutiones, iv. 4. 3.

44Brevard,op. cit.ii. 231sq.

45Harris and Johnson,Reports of Cases argued and determined in the General Court and Court of Appeals of the State of Maryland, i. 4. Of all the Slave States, so far as I know, Kentucky was the only one where the owner of a slave might bring an action of trespass against anyone who whipped, stroke, or otherwiseabusedthe slave without the owner’s consent, notwithstanding the slave was not so injured that the master lost his services thereby (Morehead and Brown,Digest of the Statute Laws of Kentucky, ii. 1481). In Tennessee, according to an act of 1813, a person was punished if he “wantonly and without sufficient cause” beat or abused the slave of another (Caruthers and Nicholson,Compilation of the Statutes of Tennessee, p. 678).

46Prince,Digest of the Laws of the State of Georgia, p. 781.

47Stephen,Slavery of the British West India Colonies, i. 188. Edwards,History of the British West Indies, ii. 202sq.

48Gwentian Code, ii. 5. 31sq.(Ancient Laws and Institutes of Wales, p. 339). For ancient Swedish law on this subject, seeGotlands-Lagen, i. 19. 37.

49Ta Tsing Leu Lee, sec. cccxiii. p. 336.

Very frequently the penalties or fines for bodily injuries are influenced by the class or rank of the parties even when both of them are freemen. Among the Marea, whilst a commoner who wounds another commoner simply pays him compensation for the hurt, a commoner who wounds a nobleman must abandon to him all his property and become his slave.50At Zimmé the fines for assaults “vary greatly, according to the rank of the party complaining.”51Among the Ossetes the limbs of a noble are rated at twice as much as the limbs of an ordinary freeman.52The Laws of Ḫammurabi contain the following provisions:—“If a man has caused the loss of a gentleman’s eye, his eye one shall cause to be lost. If he has shattered a gentleman’s limb, one shall shatter his limb. If he has caused a poor man to lose his eye or shattered a poor man’s limb, he shall pay one mina of silver. If a man has made the tooth of a man that is his equal to fall out, one shall make his tooth fall out. If he has made the tooth of a poor man to fall out, he shall pay one-third of a mina of silver,”53According to the Laws of Manu, if a man of a low caste does hurt to a man of any of the three highest castes, the offending member shall be cut off;54and he who intentionally strikes a Brâhmana in anger, even if it were only with a blade of grass, “will be born during twenty-one existences in the wombs of such beings where men are born in punishment of their sins.”55In early Teutonic and Celtic codes we meet with the principle that the compensation by which a bodily injury is to be atoned for varies according to the rank of the parties concerned.56

50Munzinger,Ostafrikanische Studien, p. 244.

51Colquhoun,Amongst the Shans, p. 132.

52von Haxthausen,Transcaucasia, p. 409.

53Laws of Ḫammurabi, 196-198, 200sq.Cf.ibid.202sq.

54Laws of Manu, viii. 279.

55Ibid.iv. 166.Cf.ibid.iv. 167.

56Kemble,Saxons in England, i. 134.Ancient Laws of Ireland, iii. p. cxi.Dimetian Code, ii. 17. 17 (Ancient Laws and Institutes of Wales, p. 248).Gwentian Code, ii. 7. 13 (ibid.342). de Valroger,Les Celtes, p. 470. Innes,Scotland in the Middle Ages, p. 180.

We have noticed that men in their estimation of human life, particularly at the earlier stages of culture, discriminate between fellow-tribesmen or compatriots and aliens. A similar distinction is made with reference to other bodily injuries. It reaches its pitch in the sufferings inflicted on vanquished enemies. The treatment to which the Kamchadales subjected their male prisoners of war included “burning, hewing them to pieces, tearing their entrails out when alive, and hanging them by the feet.”57Some of the Dacotahs, when they had taken a captive, “secured himto a stake and allowed their women to torture him by mutilating him previous to killing him”;58and of many other North American Indians it is said that they “devote their captives to death, with the most agonising tortures.”59The wars of the Society Islanders, Ellis observes, were most merciless and destructive; “invention itself was tortured to find out new modes of inflicting suffering.”60On the other hand, there are not wanting instances of savage warfare being conducted on more humane principles. Dobrizhoffer tells us that “cruelty towards captives and enemies is abhorred by the Abipones, who never torture the dying”;61and among the Somals no injury is done to enemies who have been severely wounded in the battle.62Civilised nations maintain that, in time of war, no greater injuries should be inflicted upon the enemy than are necessary to obtain the end of the war.

57Krasheninnikoff,History of Kamschatka, p. 200.

58Dorsey, ‘Omaha Sociology,’ inAnn. Rep. Bur. Ethn.iii. 313.

59Adair,History of the American Indians, p. 388.

60Ellis,Polynesian Researches, i. 293.Cf.Williams,Narrative of Missionary Enterprises, p. 533 (Samoans); Foreman,Philippine Islands, p. 185; Ellis,Tshi-speaking Peoples of the Gold Coast, p. 172sq.

61Dobrizhoffer,Account of the Abipones, ii. 411.

62Paulitschke,Ethnographie Nordost-Afrikas, p. 255.

The right to bodily integrity is influenced by religious differences as well as national. According to Muhammedan law, the compensation for injuries inflicted on a Jew or a Christian is a third, for those inflicted on a Parsee only a fifteenth, of the sum to be paid for similar injuries done to a Moslem.63A mediæval Spanish law prescribes that a Christian who beats a Jew shall pay four maravedis, but that a Jew who beats a Christian shall pay ten.64

63Sachau,op. cit.p. 764.

64‘Fuero de Sepulveda,’ art. 37sq., quoted by Du Boys,Histoire du droit criminel de l’Espagne, p. 74.

The right to bodily integrity may be forfeited by the commission of a crime. As has been already noticed, physical injuries are frequently resented according to the law of like for like;65and in other cases, also, the inflictionof corporal suffering—by mutilation, scourging, and so forth—is a common penalty. Amputation or mutilation of the offending member has particularly been in vogue among so-called peoples of culture.66It is oftenmentionedin the Code of Ḫammurabi67and in the Laws of Manu.68It occurred among the Greeks,69Romans,70and Teutons.71Mediæval codes contain numerous instances of it.72The Laws of Alfred prescribe that a maletheowwho commits a rape upon a femaletheowshall be emasculated;73and in a later age Bracton reserves the same punishment for the deflowerer of a virgin, with the addition that the offender shall also lose his eyes, “on account of his looking at the beauty, for which he coveted possession of the virgin.”74According to a law of Cnut, an adulteress shall have her nose and ears cut off.75Aethelstan enjoined that an illicit coiner should lose his right hand;76whereas in later times this punishment was restricted to those who struck anybody in the king’s presence or in his court.77By the statute law of Scotland the punishment of forgery, or falsifying of writings, was at first the amputation of the hand, afterwards dismembering of it, joined with other pains.78In some countries a perjurer lost the offending fingers or his right hand,79in others he had his tongue cutoff or pierced with a hot iron;80and in England, before the Conquest, a man might lose his tongue by bringing a false and scandalous accusation.81In the seventeenth century a person in Scotland was sentenced to have his tongue bored because he had libelled the Lord Justice General.82In German and Austrian codes we find, even in the eighteenth century, traces of the principle of punishing the offending member;83and in France the last survival of it—the amputation of the right hand of a parricide before his execution—disappeared only in 1832.84Growing refinement of feeling has made people averse from the use of surgery in the administration of justice; and in most European countries grown-up offenders are no longer liable to corporal punishment of any kind.85

65Supra, p. 178. See alsoLaws of Ḫammurabi, 196, 197, 200;Exodus, xxi. 24sq.;Leviticus, xxiv. 19sq.;Deuteronomy, xix. 21;Koran, v. 49; Sachau,op. cit.p. 762sq.(Muhammedan law); Leist,Alt-arisches Jus Gentium, p. 426sq.(Greeks);Lex Duodecim Tabularum, viii. 2; Günther,Idee der Wiedervergeltung, p. 186sqq.(Teutons).

66For its occurrence in modern Persia, see Polak,Persien, i. 256, 329sq.; in Fez, see Leo Africanus,History and Description of Africa, ii. 470. The Koran (v. 42) orders theft to be punished by cutting off the hands of the thief, but this punishment is now seldom practised in Muhammedan countries. Among the lower races I have met only with a few instances of punishing the offending member. In Ashanti intrigue with the female slaves of the royal household is punished by emasculation (Ellis,Tshi-speaking Peoples of the Gold Coast, p. 287); and the Kamchadales burn the hands of people who have been frequently caught in theft (Krasheninnikoff,op. cit.p. 179).

67Laws of Ḫammurabi, 192, 194, 195, 218, 226, 253.

68Laws of Manu, viii. 270-272, 279-283, 322, 334, 374; xi. 105.

69Günther,op. cit.i. 94sqq.

70Ibid.i. 155sqq.

71Ibid.i. 195sqq.Wilda,op. cit.p. 510. Grimm,Deutsche Rechtsalterthümer, p. 740.

72Du Boys,Histoire du droit criminel des peuples modernes, ii. 699.Idem,Histoire du droit criminel de l’Espagne, p. 94. Cibrario,Economia politica del medio eve, i. 346sq.

73Laws of Alfred, ii. 25.

74Bracton,De Legibus et Consuetudinibus Angliæ, fol. 147, vol. ii. 480sq.

75Laws of Cnut, ii. 54.

76Laws of Æthelstan, 14.

77Strutt,View of the Manners, Customs, &c., of the Inhabitants of England, iii. 43.

78Erskine,Principles of the Law of Scotland, p. 571.

79Stemann,op. cit.p. 645. Charles V.’sPeinliche Gerichts Ordnung, art. 107, p. 235. Pollock and Maitland,History of English Law before the Time of Edward I.ii. 453. Günther,op. cit.ii. 57.

80Du Boys,Histoire du droit criminel des peuples modernes, ii. 699.Idem,Histoire du droit criminel de l’Espagne, p. 599sq.Pitcairn,Criminal Trials in Scotland, iii. 539.

81Pollock and Maitland,op. cit.ii. 539.

82Rogers,Social Life in Scotland, ii. 35.

83Günther,op. cit.ii. 55-57, 65; iii. 79.

84Chauveau and Hélie,Théorie du Code Pénal, iii. 394.

85See von Liszt,Le droit criminel des états européens,passim; Wrede,Die Körperstrafen bei allen Völkern,passim.

Corporal punishment has generally been, by preference, a punishment for poor and common people or slaves.86Blows and abusive language, says Plutarch, seem to be more fitting for slaves than the freeborn.87According to the religious law of the Hindus, a Brâhmana shall not suffer corporal punishment for any offence.88Among the Hebrews89and Muhammedans,90among the Romans91and in the Middle Ages,92the punishment of mutilation could generally be commuted to a fine. For a long period, inChristian Europe, as well as in Pagan Rome during the Empire,93the punishment was more savage in proportion as the delinquent was more helpless. “En crimes,” says Loysel, “les villains sont plus griévement punis en leurs corps que les nobles…. Et où le vilain perdroit la vie, ou un membre de son corps, le noble perdra l’honneur, et réponse en cour.”94Indeed, whilst the slave incurred the penalty of mutilation for the most trifling offence, the noble might be exempted from corporal punishment of any kind.95In a similar manner the socialstatusof a person has influenced his right to bodily integrity with reference to judicial torture. According to the Chinese Penal Code, “it shall not, in any tribunal of government, be permitted to put the question by torture to those who belong to any of the eight privileged classes, in consideration of the respect due to their character.”96In Rome, under the Republic, torture was exclusively confined to the slaves.97In mediæval Christendom it was made use of to an extent and with a cold-blooded ferocity unknown to any heathen nation, and in cases of heresy and treason it was applied to every class of the community.98But the tortures inflicted on the nobles and the clergy were lighter than in the case of ordinary laymen, and proof of a more decided character was required to justify their being exposed to torment.99“Noble persons and persons of quality,” says Dumoulin, “cannot so easily be subjected to torture as persons who are of mean and plebeian rank.”100Guazzini, an eminent Italian jurisconsult and a recognised expositor of the law of torture in the days of its highest ascendency and ripest maturity, observes that the torment inflictedon a person shall be proportionate to his age, his physical constitution, his mental habits, and his socialstatus;101and he adds that bishops and others in high civil dignity are exempt from torture even under strong presumptions of guilt.102

86See, for instance, theLaws of Manu, viii. 267, 279.

87Plutarch,De educatione puerorum, 12.

88Baudhâyana, i. 10. 18. 17.Institutes of Vishnu, v. 2.

89Günther,op. cit.i. 55.

90Ibid.i. 74sq.Lane,Manners and Customs of the Modern Egyptians, p. 120. Sachau,op. cit.p. 764. According to Muhammedan law, it is not obligatory for the injured party to accept compensation in lieu of mutilation.

91Günther,op. cit.i. 124sqq.Mommsen,Römisches Strafrecht, p. 981.

92Du Boys,Histoire du droit criminel des peuples modernes, ii. 557sq.Strutt,op. cit.ii. 8.

93Cf.Mackenzie,Studies in Roman Law, p. 414sq.

94Loysel,Institutes coutumières, vi. 2. 31sq., vol. ii. 219sq.

95Du Boys,Histoire du droit criminel de l’Espagne, p. 469.

96Ta Tsing Leu Lee, sec. cccciv. p. 441.

97Mommsen,Römisches Strafrecht, p. 405.

98Suarez de Paz,Praxis ecclesiastica et secularis, v. 1. 3. 12, fol. 154 b.Cf.Lecky,Rise and Influence of the Spirit of Rationalism in Europe, i. 328.

99Lea,Superstition and Force, p. 526sq.

100Dumoulin, quoted by Welling, ‘Law of Torture,’ inThe American Anthropologist, v. 210sq.

101Guazzini,Tractatus ad defensam inquisitorum, xxx. 4. 24, vol. ii. 86.

102Ibid.xxx. 17, vol. ii. 102sq.

The moral notions regarding the infliction of bodily injuries require little comment. They are based on the principle of sympathetic resentment, modified by the ascription of particular rights to some and particular duties to others, on account of the relation in which the parties stand to each other; and they follow the same rules as the ideas concerning homicide, to the exclusion, of course, of all such considerations as result from fear of the slain man’s ghost or from the religious horror of taking life. One point, however, calls for special attention. The forcible interference with another person’s body not only causes physical pain but commonly entails disgrace upon the sufferer. This largely accounts for the fact that a person’s right to bodily integrity varies so much according to his social standing.103Even among the lower races we meet with the notions that an act of bodily violence involves a gross insult, and that corporal punishment disgraces the criminal more than any other form of penalty. According to the Malay Code, “the persons who may be put to death without the previous knowledge of the king or nobles, are an adulterer, a person guilty of treason, a thief who cannot otherwise be apprehended, and a person who offers another a grievous affront, such as a blow over the face.”104Among the Maoris a blow with the fist would lead to a combat with arms.105The Thlinkets consider corporal punishment tobe the greatest indignity to which a freeman can be subjected, hence they never inflict it.106And civilised nations who are ready to punish certain criminals with death, hold whipping to be a punishment too infamous to be employed.

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