Chapter 6

108Laws of Ḫammurabi, 229sq.

109Ibid.209sq.

110Gason, ‘Manners and Customs of the Dieyerie Tribe,’ in Woods,Native Tribes of South Australia, p. 265.

This extreme disregard of the suffering of guiltless persons is probably not so much due to downright callousness as to a strong feeling of family solidarity. The same feeling is very obvious in those numerous instances in which both the criminal himself and members of his family are implicated in the punishment.

Among the Atkha Aleuts, the punishment for certain offences was sometimes carried so far as to include the wife of the offender.111Among the Ew̔e-speaking peoples of the Slave Coast, “a person found guilty of having procured, or endeavoured to procure, the death of another through the agency of the gods Huntin and Loko, is put to death, and his family is generally enslaved as well.”112Among the Matabele, if a person is declared by the witch-doctor to have caused injury to somebody else by making charms, he “is immediately put to death, his wife and the whole of his family sharing his fate.”113Among the Shilluks of the White Nile, “murder is punished with death to the criminal and the forfeiture of wives and children to the Sultan, who retains them in bondage.”114Among the Kafirs, in cases of trespasses against the king, the sentence falls not only on the individual, but on his whole house.115In Madagascar, the code of native laws, up to recent time, reduced for many offences the culprit’s wife and children to slavery.116In some parts of the Malay Archipelago, according to Crawfurd, a father and child are considered almost inseparable, hence when the one is punished the other seldom escapes.117In Bali, the law prescribes that for certain kinds of sorcery the offender shall be put to death. It adds, “If the matter be very clearly made out, let the punishment of death be extended to his father and his mother, to his children and to his grand-children; let none of them live; let none connected with one so guilty remain on the face of the land, and let their goods be in like manner confiscated.”118

111Petroff, ‘Report on Alaska,’ inTenth Census of the United States, p. 158.

112Ellis,Ew̔e-speaking Peoples of the Slave Coast, p. 225.

113Decle,Three Years in Savage Africa, p. 153.

114Petherick,Travels in Central Africa, ii. 3.

115Ratzel,History of Mankind, ii. 445.

116Sibree,The Great African Island, p. 181. Ellis,History of Madagascar, i. 174, 175, 193.

117Crawfurd,op. cit.i. 82.

118Ibid.iii. 138.

The Chinese doctrine of responsibility is to a great extent based upon family solidarity; in great crimes all the male relatives of the offender are held responsible for his deed. Every male relative, of whatever degree, who may be dwelling under the roof of a man guilty of treason, is doomed to death, with the exception of young boys, who are allowed their lives, but on the condition that they are made eunuchs for service in the imperial palace.119In ancient Mexico, traitors and conspirators were not only themselves killed, but their children and relativeswere made slaves to the fourth generation.120According to an Athenian law, a man who committed sacrilege or betrayed his country was banished with all his children.121Aristotle mentions a case of sacrilege in which “the bones of the guilty dead were disentombed and cast beyond the borders of Attica; the living clan were condemned to perpetual exile, and the city was subsequently purified.”122The Macedonian law involved in punishment the kindred of conspirators against the monarch.123Dionysius of Halicarnassus states that some of the Greeks “think it reasonable to put to death the sons of tyrants together with their fathers, whereas others punish them with perpetual banishment”; and he contrasts this with the Roman principle that “the sons shall be exempted from all punishment, whose fathers are offenders, whether they happen to be the sons of tyrants, of parricides, or of traitors.”124But after the end of the Marsic, and civil wars, this rule was transgressed;125and later on Arcadius, though expressly ordaining that the punishment of the crime shall extend to the criminal alone,126took a different view of the punishment for treason. By a special extension of his imperial clemency, he allows the sons of the criminal to live, although in strict justice, being tainted with hereditary guilt, they ought to suffer the punishment of their father. But they shall be incapable of inheritance; they shall be abandoned to the extreme of poverty and perpetual indigence; they shall be excluded from all honours and from the participation of religious rites; the infamy of their father shall ever attend them, and such shall be the misery of their condition, that life shall be a punishment and death a comfort.127Among the Anglo-Saxons, before the time of Cnut, the child, even the infant in the cradle, was liable to be sold into slavery for the payment of penalties incurred by the father, being “held by the covetous to be equally guilty as if it had discretion.”128Even later, the child of an outlaw, following the condition of the father, also became an outlaw; and this grievance was only partly remedied by Edward the Confessor, who relieved from the consequences of the father’s outlawry such children as were born before he wasoutlawed, but not such as were born afterwards.129During the Middle Ages it was the invariable rule to confiscate the entire property of an impenitent heretic, a rule which was justified on the ground that his crime is so great that something of his impurity falls upon all related to him.130The Pope Alexander IV. also excluded the descendants of an heretic to the second generation from all offices in the Church.131Owing to religious influence, illegitimate children were not only deprived of the title to inheritance, but they were treated by some law-books as almost rightless beings, on a par with robbers and thieves.132If a person committed suicide, his goods were confiscated, and, according to a French mediæval law, his wife was besides deprived of her own private property.133Even in the latter half of the eighteenth century, in France, in the case of an attempt made against the life of the king, the whole family of the criminal was banished.134Nay, in various European countries, up to quite recent times—in England till 1870—forfeiture of property has been the punishment prescribed for certain crimes, including suicide;135which means, if not actually the imposition of penalties on the survivors in a case where the culprit himself is out of reach, at least a gross disregard of their ordinary rights of property. It is hardly necessary to point out how often, in the very society in which we live, “social punishments” are inflicted upon children for their father’s wrongs.

119Douglas,Society in China, p. 71sq.Ta Tsing Leu Lee, sec. ccliv. p. 270.

120Bancroft,Native Races of the Pacific States, ii. 459.

121Meursius,Themis Attica, ii. 2, in Gronovius,Thesaurus Graecarum Antiquitatum, v. 1968.

122Aristotle,De republica Atheniensium1.Cf.ibid.20.

123Curtius Rufus,De gestis Alexandri Magni, vi. 11. 20.

124Dionysius of Halicarnassus,Antiquitates Romanae, viii. 80.

125Ibid.viii. 80.

126Codex Iustinianus, ix. 47. 22.

127Ibid.ix. 8. 5.

128Laws of Cnut, ii. 77.Cf.Lappenberg,History of England under the Anglo-Saxon Kings, ii. 414; Wilda,op. cit.p. 906.

129Leges Edwardi Confessoris, 19.

130Lecky,History of Rationalism in Europe, ii. 36, n. 1. Eicken,Geschichte und System der mittelalterlichen Weltanschauung, p. 572sq.Paramo,De origine et progressu Sancti Inquisitionisp. 587sq.

131Eicken,op. cit.p. 573.

132Ibid.p. 573.

133Du Boys,Histoire du droit criminel des peuples modernes, ii. 236.

134Hertz,Voltaire und die französische Strafrechtspflege im achtzehnten Jahrhundert, p. 27.

135Stephen,History of the Criminal Law of England, i. 487sq.; iii. 105.

For the explanation of these facts we have to remember what has been said before about collective responsibility in the case of revenge. Speaking of the Chinese doctrine of family solidarity, Dr. de Groot observes that, “under the influence of this doctrine, families, not men individually, came to be regarded, from the Government’s point of view, as the smallest particles, the molecules of the nation, each individual being swallowed up in the circle of his kinsfolk.”136Such a doctrine assumes that the other members of the family-group are, in a way, accessoriesto any crime committed by a fellow-member. “Human nature,” says Lord Kames, “is not so perverse, as without veil or disguise to punish a person acknowledged to be innocent. An irregular bias of imagination, which extends the qualities of the principal to its accessories, paves the way to that unjust practice. This bias, strengthened by indignation against an atrocious criminal, leads the mind hastily to conclude, that all his connections are partakers of his guilt.”137Among the ancients we also meet with a strong belief that, according to the course of nature, wicked fathers have wicked sons. “That which is begot,” says Plutarch, “is not, like some production of art unlike the begetter, for it proceeds from him, and is not merely produced by him, so that it appropriately receives his share, whether that be honour or punishment.”138To destroy, or to make harmless, the family of an offender may be, not only an act of retaliation, but a precaution; according to an old Greek adage, “a man is a fool if he kills the father and leaves the sons alive.”139This especially holds good for treason, which generally suggests accomplices; and of all crimes for which penalties are imposed upon other individuals besides the culprit, treason is probably the most common. This crime is also particularly apt to evoke the hatred of those who have the power to punish, hence the punishment of it, being closely allied to an act of revenge, is often inflicted without due discrimination. Moreover, by being extended to the criminal’s family, the punishment falls more heavily upon himself as well. Again, in case the crime is of a sacrilegious character, it is supposed to pollute everybody connected with the criminal, and even the whole community where he dwells.

136de Groot,Religious System of China(vol. ii. book) i. 539.

137Kames,Sketches of the History of Man, iv. 148.

138Plutarch,De sera numinis vindicta, 16.Cf.Dionysius of Halicarnassus,op. cit.viii. 80.

139Schmidt,Ethik der alten Griechen, ii. 126.

In their administration of justice, gods are still more indiscriminate than men. They hold the individual responsible for the whole to which he belongs. Theypunish the community for the sins of one of its members. They visit the iniquity of the fathers and forefathers upon the children and descendants.

The Sibuyaus, a tribe belonging to the Sea Dyaks, “are of opinion that an unmarried girl proving with child must be offensive to the superior powers, who, instead of always chastising the individual, punish the tribe by misfortunes happening to its members. They, therefore, on the discovery of the pregnancy fine the lovers, and sacrifice a pig to propitiate offended Heaven, and to avert that sickness or those misfortunes that might otherwise follow; and they inflict heavy mulcts for every one who may have suffered from any severe accident, or who may have been drowned within a month before the religious atonement was made.”140According to Chinese beliefs, whole kingdoms are punished for the conduct of their rulers by spirits who act as avengers with orders or approval from theTao, or Heaven.141Prevalent opinion in China, continuously inspired anew by literature of all times and ages, further admits that spiritual vengeance may come down upon the culprit’s offspring in the form of disease or death.142When a maimed or deformed child is born the Japanese say that its parents or ancestors must have committed some great sin.143The Vedic people ask Varuna to forgive the wrongs committed by their fathers.144Says the poet:—“What we ourselves have sinned in mercy pardon; my own misdeeds do thou, O god, take from me, and for another’s sin let me not suffer.”145According to the ancient Greek theory of divine retribution, the community has to suffer for the sins of some of its members, children for the sins of their fathers.146Hesiod says that often a whole town is punished with famine, pestilence, barrenness of its women, or loss of its army or vessels for the misdeeds of a single individual.147Crœsus atoned by the forfeiture of his kingdom for the crime of Gyges, his fifth ancestor, who had murdered his master and usurped his throne.148Cytissorus brought down the anger of gods upon his descendants byrescuing Athamas, whom the Achaians intended to offer up as an expiatory sacrifice on behalf of their country.149When hearing of the death of his wife, Theseus exclaims, “This must be a heaven-sent calamity in consequence of the sins of an ancestor, which from some remote source I am bringing on myself.”150According to Hebrew notions, sin affects the nation through the individual and entails guilt on succeeding generations.151The anger of the Lord is kindled against the children of Israel on account of Achan’s sin.152The sin of the sons of Eli is visited on his whole house from generation to generation.153Because Saul has slain the Gibeonites, the Lord sends, in the days of David, a three years’ famine, which ceases only when seven of Saul’s sons are hanged.154The sins of Manasseh are expiated even by the better generation under Josiah.155The notion of a jealous God who visits the iniquity of the fathers upon the children unto the third and fourth generation of them that hate Him,156is also frequently met with in the Old Testament Apocrypha. “The inheritance of sinners’ children shall perish, and their posterity shall have a perpetual reproach.”157“The seed of an unrighteous bed shall be rooted out.”158The same idea has survived among Christian peoples. It was referred to in Canon Law as a principle to be imitated by human justice,159and by Innocent III. in justification of a bull which authorised the confiscation of the goods of heretics.160Up to quite recent times it was a common belief in Scotland that the punishment of the cruelty, oppression, or misconduct of an individual descended as a curse on his children to the third and fourth generation. It was not confined to the common people; “all ranks were influenced by it; and many believed that if the curse did not fall upon the first or second generation it would inevitably descend upon the succeeding.”161In the dogma that the whole human race is condemned onaccount of the sin of its first parents, the doctrine of collective responsibility has reached its pitch.

140St. John,Life in the Forests of the Far East, i. 63.

141de Groot,op. cit.(vol. iv. book) ii. 432, 435. Davis,China, ii. 34sq.

142de Groot,op. cit.(vol. iv. book) ii. 452.

143Griffis,Mikado’s Empire, p. 472.

144Rig-Veda, vii. 86. 5.Cf.Atharva-Veda, v. 30. 4; x. 3. 8.

145Rig-Veda, ii. 28. 9.Cf.ibid.vi. 51. 7; vii. 52. 2.

146Nägelsbach,Nachhomerische Theologie des griechischen Volksglaubens, p. 34sq.Schmidt,op. cit.i. 67sqq.Farnell,Cults of the Greek States, i. 76sq.

147Hesiod,Opera et dies, 240sqq.

148Herodotus, i. 91.

149Ibid.vii. 197.

150Euripides,Hippolytus, 831sq.

151Oehler,Theology of the Old Testament, i. 236. Dorner,System of Christian Doctrine, ii. 325. Montefiore,Hibbert Lectures, p. 103. Robertson Smith,Religion of the Semites, p. 421. Schultz,Old Testament Theology, ii. 308. Bernard, ‘Sin,’ in Hastings,Dictionary of the Bible, iv. 530, 534.

152Joshua, vii. 1.

1531 Samuel, ii. 27sqq.

1542 Samuel, xxi. 1sqq.

155Deuteronomy, i. 37; iii. 26; iv. 21.2 Kings, xxiii. 26; xxiv. 3.Jeremiah, xv. 4sqq.

156Exodus, xx. 5; xxiv. 7,Numbers, xiv. 18.Deuteronomy, v. 9.Cf.Leviticus, xxvi. 39.

157Ecclesiasticus, xli. 6.Cf.ibid.xvi. 4; xli. 5, 7sqq.

158Wisdom of Solomon, iii. 16.Cf.ibid.iii. 12, 13, 17sqq.

159Eicken,op. cit.p. 572.

160Lecky,History of Rationalism in Europe, ii. 37 n.

161Stewart,Sketches of the Character, &c., of the Highlanders of Scotland, p. 127.

Men originally attribute to their gods mental qualities similar to their own, and imagine them to be no less fierce and vindictive than they are themselves. Thus the retribution of a god is, in many cases, nothing but an outburst of sudden anger, or an act of private revenge, and as such particularly liable to comprise, not only the offender himself, but those connected with him. Plutarch even argued that the punishments inflicted by gods on cities for ill-deeds committed by their former inhabitants allowed of a just defence, on the ground that a city is “one continuous entity, a sort of creature that never changes from age, or becomes different by time, but is ever sympathetic with and conformable to itself,” and therefore “answerable for whatever it does or has done for the public weal, as long as the community by its union and federal bonds preserves its unity.”162He further observes that a bad man is not bad only when he breaks out into crime, but has the seeds of vice in his nature, and that the deity, knowing the nature and disposition of every man, prefers stifling crime in embryo to waiting till it becomes ripe.163

162Plutarch,De sera numinis vindicta, 15.

163Ibid.20.

But there are yet special reasons for extending the retribution of a god beyond the limits of individual guilt. Whilst the resentment of a man is a matter of experience, that of a god is a matter of inference. That some particular case of suffering is a divine punishment, is inferred either from its own peculiar character, suggesting the direct interference of a god, or from the assumption that a certain act, on account of its offensiveness, cannot be left unpunished. Now experience shows that, in many instances, the sinner himself escapes all punishment, leading a happy life till his death; hence the conclusion is near at hand that any grave misfortune which befalls his descendants, is the delayed retribution of the offendedgod.164Such a conclusion is quite in harmony with the common notions of divine power. It especially forces itself upon a mind which has no idea of a hell withpost mortempunishments for the wicked. And, where the spirit of a man after his death is believed to be still ardently concerned for the welfare of his family,165the affliction of his descendants naturally appears as a punishment inflicted upon himself. As Dr. de Groot observes, the doctrine of the Chinese, that spiritual vengeance may descend on the offender’s offspring, tallies perfectly with their conception “that the severest punishment which may be inflicted on one, both in his present life and the next, is decline or extermination of his male issue, leaving nobody to support him in his old age, nobody to protect him after his death from misery and hunger by caring for his corpse and grave, and sacrificing to his manes.”166

164Cf.Isocrates,Oratio de pace, 120; Cicero,De natura Deorum, iii. 38; Nägelsbach,op. cit.p. 33sq.

165Cf.Schmidt,op. cit.i. 71sq.(ancient Greeks).

166de Groot,op. cit.(vol. iv. book) ii. 452.

The retributive sufferings which innocent persons have to undergo in consequence of the sins of the guilty, are not always supposed to be inflicted upon them directly, as a result of divine resentment. They are often attributed to infection. Sin is looked upon in the light of a contagious matter which may be transmitted from parents to children, or be communicated by contact.

This idea is well illustrated by the funeral ceremonies of the Tahitians. “When the house for the dead had been erected, and the corpse placed upon the platform or bier, the priest ordered a hole to be dug in the earth or floor near the foot of the platform. Over this he prayed to the god by whom it was supposed the spirit of the deceased had been required. The purport of his prayer was that all the dead man’s sins, and especially that for which his soul had been called to thepo, might be deposited there, that they might not attach in any degree to the survivors, and that the anger of the god might be appeased.” All who were employed in embalming the dead were also, during the process, carefully avoided by every person,as the guilt of the crime for which the deceased had died was believed to contaminate such as came in contact with the corpse; and as soon as the ceremony of depositing the sins in the hole was over, all who had touched the body or the garments of the deceased, which were buried or destroyed, fled precipitately into the sea to cleanse themselves from the pollution.167In one part of New Zealand “a service was performed over an individual, by which all the sins of the tribe were supposed to be transferred to him, a fern stalk was previously tied to his person, with which he jumped into the river and there unbinding, allowed it to float away to the sea, bearing their sins with it.”168The Iroquois White Dog Feast, which was held every year in January, February, or early in March,169implied, according to most authorities, a ceremony of sin-transference.170The following description of it is given by Mrs. Jemison, a white woman who was captured by the Indians in the year 1755:—Two white dogs, without spot or blemish, are strangled and hung near the door of the council-house. On the fourth or fifth day the “committee,” consisting of from ten to twenty active men who have been appointed to superintend the festivities, “collect the evil spirit, or drive it off entirely, for the present, and also concentrate within themselves all the sins of their tribe, however numerous or heinous. On the eighth or ninth day, the committee having received all the sin, as before observed, into their own bodies, they take down the dogs, and after having transfused the whole of it into one of their own number, he, by a peculiar sleight of hand, or kind of magic, works it all out of himself into the dogs. The dogs, thus loaded with all the sins of the people, are placed upon a pile of wood that is directly set on fire. Here they are burnt, together with the sins with which they were loaded.”171Among the Badágas of India, at a burial, “an elder, standing by the corpse, offers up a prayer that the dead may not go to hell, that the sins committed on earth may be forgiven, and that the sins may be borne by a calf, which is let loose in the jungle and used thenceforth for no manner of work.”172At Utch-Kurgan, in Turkestan, Mr. Schuyler saw an old man, constantlyengaged in prayer, who was said to be aniskatchi, that is, “a person who gets his living by taking on himself the sins of the dead, and thenceforth devoting his life to prayer for their souls.”173

167Ellis,Polynesian Researches, i. 401sqq.

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