KINSHIP, BLOOD REVENGE, PRIMITIVE JUSTICE, PEACE
UNIONS
Kinship.--Forms of kinship.--Family education.--Kinds of
kinship.--How family mores are formed.--Family and marriage.--
Goblinism and kinship; blood revenge.--Procreation; forms of the
family.--Notions about procreation and share in it.--Blood
revenge and the in-group--Institutional ties replace the blood
tie.--Peace in the in-group.--Parties to blood revenge.--Blood
revenge in ethnography.--Blood revenge in Israel.--Peace units
and peace pacts.--The instability of great peace unions.--The
Arabs.--The development of the philosophy of blood revenge.--
Alleviations of blood revenge.--The king's peace.--The origin
of criminal law.
+534. Kinship.+ Kinship is a fact which, in the forms of heredity and
race, is second to none in importance to the interests of men. It is a
fact which was concealed by ignorance from primitive men. It is yet
veiled in much mystery from us. Nevertheless the notion of kinship was
one of the very first notions formed by primitive men as a bond of
association, and they based folkways upon their ideas about it. They
deduced the chief inferences and handed the whole down to succeeding
generations. Therefore the assumed knowledge of the facts of kinship was
used as the basis of a whole series of societal conventions. The first
construction was the family, which was a complete institution. Of course
marriage was a relationship which was controlled and adjusted by the
family ideas. From the folkways as to kinship all the simplest
conceptions of societal rights and duties were derived, societal
institutions were constructed, and societal organization has grown up.
+535. Forms of kinship.+ That a certain child was born of a certain
woman, after having been for some time in physical connection with her
body, is an historical and physical fact. That another child was born of
the same mother is another fact, of the same order. It may be believed
that these facts produce permanent life relations between the mother and
children, and between the children, or it may be believed that the facts
have no importance for duties, interests, or sympathies. The relations,
if recognized, may be defined and construed in many different ways and
degrees. They could also be carried further by including more
generations, or wider collateral branches, until kinship would include a
sib, or family in the widest sense,--those related within some limit of
descent and cousinship on a system decided on (mother family, father
family, etc.) and traditional. Kinship is purely matter of fact and
history, and therefore rational. There is no "natural affection." There
is habit and familiarity, and the example and exhortations of parents
may inculcate notions of duty. Sentiments and sympathies will then be
produced out of familiarity in life, or out of use and wont. The
construction and limits of kinship in any society are products of the
folkways, or--inasmuch as the system is built up with notions of welfare
and rights and duties--of the mores. In fact, since the folkways in
regard to this matter begin at a very primitive stage of human life, run
up to the highest civilization, and are interwoven with the most tender
sympathies and ethical convictions at all stages, kinship is one of the
most important products of the folkways and mores. It is, in fact, the
most important societal concept which the primitive man thought out, and
it would be such even if we were now compelled to reject it as
erroneous.
+536. Family education.+ No doubt the folkways about kinship are
produced in connection with views about interests, and in connection
with faiths about procreation, and impressions produced by experience.
The mother and children live in constant contact and intimacy. The
family grows into an institution which takes its nature from the
traditional and habitual behavior of its members to each other in daily
life. Use and wont have here a great field for their constructive
operation. Each family (mother and children) is independent and makes
its own world, in which nearly all its interests are enfolded. There are
constantly recurring occasions for acts of a reciprocal character, and
such acts especially build up institutions. The family is also an arena
in which sympathies are cultivated, which does not mean that they are
always nourished and developed. Habits are formed and discipline is
enforced. Rules are accepted from custom and enforced by authority and
force. Rights and duties are enforced as facts long before they are
apprehended as concepts.
+537. Kinds of kinship.+ The sib, or large family, including all those
who are known to be related at all, is a group of very varying
importance in different societies. In some societies the common bond is
strong and produces important social consequences. In other cases no
heed is paid to relationship beyond first and second cousins. Although
the Yakuts keep up the _rod_, or great family, for some purposes, we are
told that often "nothing unites the members of the rod but a vague
tradition of common descent."[1720] Whether individuals can break the
ties of kin, by voluntary act, is answered differently in different
societies. The Salic Franks allowed a man to do it by breaking his staff
(which was his personal symbol) in a ceremonial act.[1721] If kinship
depends on connection of the body of the child with that of the mother,
his nourishment by her milk is another ground of kinship. The Arabs
recognize this tie of a child to its foster mother. Later the child is
nourished by food shared with commensals. Hence the tie of commensality
forms a basis of social union like kinship.[1722]
+538. How mores are formed.+ The family groups which are in local
neighborhood have, in general, the same folkways as an inheritance, but
variations occur from varieties of character and circumstances. The
variations are life experiments, in fact, and they lead to selection. In
the community as a whole the mores of family life are selected,
approved, and established, and then handed down by tradition. It may be
believed that there is a common interest of the entire larger group in
the education and treatment of children, and that all the adults
recognize that interest more or less completely. The big group,
therefore, molds notions of consanguinity, and the sanctions of tribal
authority and public opinion coerce all to observe the modes of family
life which the ruling authority thinks most expedient for the group
interests.
+539. Family and marriage.+ The family institution must have preceded
marriage. In fact, marriage appears, in ethnography and history, as the
way of founding a family and as molded by the family mores existing in
the society.
+540. Goblinism and kinship. Blood revenge.+ Integration of kin
relations was produced by goblinism. This furnished an interest which
impelled to development of the kin idea. If a man was murdered, his
ghost would seek revenge, just as a man while alive would have sought
revenge for a smaller injury. The ghost was dangerous to two persons or
classes of persons, the murderer and those near the corpse. The latter
would be, almost always, his kinsmen. It behooved the latter, therefore,
if they wanted to appease the ghost and save themselves, to find the
murderer and to punish him. Hence the custom of blood revenge. It was
not due to kin notions, but to goblinistic notions. Kin only defined
those who came under the obligation. In this way kin became a tie of
mutual offense, defense, and assistance, and kin groups were formed into
societies,--we-groups or in-groups,--inside of which there was
comradeship, peace, law, and order, while the relation to all out-groups
was one of suspicion, hostility, plunder, and subjugation if possible.
The primary notion of kin was embodied in formulæ about blood,--which
were only figures of speech,--which have come down to us, so that
propositions about blood are used now to express our notions of kinship,
heredity, etc. In fact, according to modern embryology, not a drop of
blood passes from either parent to the offspring. Superstitions about
blood (seat of the soul or life, etc.) helped to develop the notion of
kin. The primitive idea is that the ghost of a murdered man can be
appeased only by blood. The blood of Abel cried unto God from the
ground. Some peoples go out to kill anything, in order that blood may be
shed and so the ghost may be satisfied.
+541. Procreation. Forms of the family.+ The notion of kin was so
elastic that various conceptions of procreation have been grafted upon
it, and various ways of organizing the family, or of reckoning kinship,
have been connected with it. Mores grow upon the notions of kinship.
They dictate modes of behavior and ideas of right and duty, and train
all members of the society in the same. The relation of father and child
is known to few persons, perhaps only to two. Kinship through the
father, therefore, seems to uncivilized people far less important than
kinship through the mother. When the father relationship is regarded as
the real tie and is made the norm of kin groups, great changes are
produced in the mores of the mother family.
+542. Notions about procreation and share in it.+ It is difficult
to see how savage men could have got any idea of procreation. The
ethnographical evidence is that they have no idea, or only a most
vague and incorrect idea, of the functions of the parents. The
Australians think that an ancient spirit enters into a baby at
birth, enlivens it, and is its fate. This notion interferes with
ideas of sexual conception. So we are told that the Dieyerie
women do not admit that a child has only one father, and say that
they do not know whether the husband or the _pirauru_ is the
father.[1723] The highest tribes in Australia say that "the
daughter emanates from her father solely, being only nurtured by
her mother."[1724] The father, however, is always known or
assumed. How else could the father move up one grade in tribal
position when the boy is initiated?[1725] Amongst several tribes
of central Australia it is believed that "the child is not the
direct result of intercourse, that it may come without this,
which merely, as it were, prepares the mother for the reception
and birth of an already formed spirit child who inhabits one of
the local totem centers."[1726] Melanesian women feel severely
the strain of child rearing. They seem to have less love for the
children than the fathers have. They often kill the babes. If an
unmarried girl becomes pregnant, she says that some man who hates
her got the help of spirits, who caused her situation.[1727] The
Indians in British Columbia think that a woman conceives by
eating, and this belief is introduced into their folk
tales.[1728] The rules about the food of women are often
connected with notions about sex relations and procreation. The
Seri of California thought that fire is bestial, not physical,
and is produced similarly to sexual reproduction.[1729] In
ancient Greece "the inferiority of women to men was strongly
asserted, and it was illustrated and defended by a very curious
physiological notion that the generative power belonged
exclusively to men, women having only a very subordinate part in
the production of their children."[1730] This notion is
expressed in the _Eumenides_, where it is said to lessen the
crime of Orestes. His mother did not generate him. She received
and nursed the germ. In Islam this same opinion prevails. It is a
father family doctrine, exactly opposite to that of the mother
family, where the function of the mother was thought far more
important.[1731] It is a good example of the way in which the
philosophy follows the view taken in the mores of the leading
interest.
+543. Blood revenge and the in-group.+ Blood revenge is out of place in
the in-group. It would mean self-extermination of the group. It would
serve the interests of the enemies in the out-groups. Hence the double
interest of harmony and coöperation in the in-group and war strength
against the out-groups forces the invention of devices by which to
supersede blood revenge in the in-group. Chiefs and priests administered
group interests, especially war and other collisions with neighbors, and
they imposed restraints, arbitration, or compensation in internal
quarrels. Cities of refuge and sanctuaries secured investigation and
deliberation to prove guilt and determine compensations. The chiefs and
priests thus modified or set aside kin law by inchoate civil forms. Then
criminal law and penalty took the place of retaliation. Between groups
blood revenge was only a detail of the normal relations of hostility and
violence. Out-groups, however, sometimes made agreements with each other
to limit blood revenge and vendetta. White men have had trouble with red
men and black men because their customs as to relationship were not on
the same level. The whites in New York and Pennsylvania colonies could
not understand why the Indians were indifferent to their demands for the
surrender of an Indian who, in time of peace, had killed a white man.
According to Indian ideas the bloodshedding did not concern the civil
body (tribe), but the kin group (clan).[1732] A wife was not included in
blood revenge. Her relation to her husband was not one of "blood." It
was institutional. Therefore it was not so strong as the tie of sister
to brother by the same mother.
+544. Institutional ties replace the blood tie.+ In the history of
civilization several institutional ties have become stronger than the
blood tie, but the primitive man, who has not yet accepted any tie as
equal to the blood tie, always resists this change. Kinship was lost by
separation, and fire superseded it as a bond of association. Fire being
kept and lent became a unifying force, because, in effect, all united in
a common effort to get and keep it.[1733] Common religion (sacrifices)
also became a bond of union. The common sacrifices at Upsala held the
scattered Swedes in unity, and served also as a peace bond, although not
a sufficient one.[1734] It is said also of the Brahuis, in Baluchistan,
that the two bonds which unite the confederacy are common land and
common good and ill, "which is another name for common blood
feud."[1735] Changes in the numbers in the group, or in life conditions,
make some other element more important than kin. Then that element
becomes the societal bond. Then the folkways, ideas, and sentiments
change to adapt themselves to the new center of interest. Throughout the
Occident the institutional tie of man and wife is rated higher than any
tie of kinship.
+545. Peace in the in-group.+ Government, law, order, peace, and
institutions were developed in the in-group. So far as sympathy was
developed at all, it was in the in-group, between comrades. The custom
of blood revenge was a protection to all who were in a group of kinsmen.
It knit them all together and served their common interest against all
outsiders. Therefore it was a societalizing custom and institution.
Inside the kin-group adjudication, administration of justice by
precedents and customs, composition for wrongs by payments or penalties,
amercements by authority for breach of orders or violations of petty
taboo, and exile took the place of retaliation. In the in-group it was
the murderer who had to fear the ghost of the murdered. Religious rites
absolved the murderer from the ghosts or gods and delivered him from the
furies, who demanded revenge. The Hebrew law provided cities of refuge
for those who were guilty of accidental homicide.[1736] The manslayer
could go home at the death of the high priest.[1737] In 2 Sam. iii and
iv are cases of blood revenge and of efforts to suppress it. The
homicide in chapter iv is not a case of blood revenge but of partisan
murder.
+546. Parties to blood revenge.+ It was a very serious modification of
blood revenge when it was extended so that any kinsman of the murdered
man was bound to kill any kinsman of the murderer. Hagen[1738] says: "No
regulated societal common life is possible where blood revenge is in
full operation; not even on the primitive stage of the Bogjadim state,"
a village in German New Guinea. This is true if blood revenge is allowed
in the in-group, or if the in-group has very low integration, for blood
revenge sets every man against his neighbor and makes society
impossible. Krieger[1739] says of the same people: "The comradeship of
clansmen with each other in respect to their attitude towards out-groups
is most definite in blood revenge during the stage between the kin-group
organization and the lowest state organization." If a nation stops in
that stage, or even degenerates a little, blood revenge becomes a
symptom of a state of societal disease. It becomes firmly fixed, is
elaborated, continues beyond the stage of other things at which it can
be useful, and, as an institution, becomes a caricature. What is lacking
is an authority which can impose commands on the in-group and extrude
blood revenge from it. The Naga, in northeastern India, fifty years ago
lived in villages in which, if two men quarreled, all the others took
sides with one or the other and civil war ensued. The experience of
these quarrels and of blood revenge produced "a reluctance to enter into
quarrels which entailed consequences so disastrous, and hence a society
living in general peace and honesty." The situation, however, was
unstable, and once or twice a year they had grand fights in which the
entire village participated by way of clearing off all old scores.
Evidently they had no adequate government or administration of justice.
Revenge is still, in case of a murder, "a sacred duty, never to be
neglected or forgotten," although English rule has modified the old
usages and may bring those people into a better political organization.
Revenge is still a kin affair, not a civil affair. It is handed down
from generation to generation, including innocent victims, women and
children, and devastating whole villages. It becomes fanatical and men
will sacrifice their most serious interests to it. If the male kinsmen
die out or are unable to keep up the feud, others may be hired to
fulfill the duty.[1740]
+547. Blood revenge in ethnography.+ The Eskimo have no civil
organization outside of the family. All justice depends on the
immediate coercion of wrongdoers by force. Hence death often
results. Retaliation is the sacred duty of every kinsman.[1741]
That the deceased was in the wrong is quite immaterial. Blood
revenge was almost universal amongst the American aborigines. In
some tribes the stage had been reached where it was set aside by
compensation.[1742] Amongst the Brazilian tribes it was a
question to be decided in each case whether retaliation should be
executed against the wrongdoer only or against all his kin.[1743]
The Arawaks practiced blood revenge, like nature peoples, as late
as 1830. Generally the cases were those of jealousy and
adultery.[1744] The Australians of Victoria kill the elder
brother of a murderer or his father. If these are not living they
kill him. He is not allowed to defend himself. In some tribes the
nearest relative of the murdered must take the life of a
tribesman of the murderer. All deaths are attributed to human
agency, and it is ascertained by divination to what tribe the
murderer belonged. Public opinion enforces the duty of blood
revenge. Any one who should neglect it would be despised.[1745]
The Dyaks keep an account current of the number of lives which
one tribe "owes" to another. The hill Dyaks, whose wars are
constant and bloody, are very scrupulous about this account of
heads due. They are more so than the sea Dyaks, who have perhaps
been influenced by contact with outside peoples.[1746] Amongst
the Ewe-speaking peoples of West Africa[1747] a family is
collectively responsible for crimes and wrongs of which any one
of its members is guilty, and each one is assessed for his share
of the composition to be paid. Each member of a family also gets
his share of any payment paid to it for wrongs to its members.
Ellis says that formerly the village was the collective unit for
paying or receiving compensation. This is noteworthy because, in
general, composition by payment is later than the custom of equal
retaliation, while civil units come later than kin units as the
collective units which are responsible. The Somali attribute the
duty of blood revenge to the kin, not to the tribe. They have a
tariff for bodily injuries less than murder, and for age and sex.
The blood money goes to the kin. Blood revenge is executed
against any kinsman of the murderer. The Galla do not accept
compensation for blood guilt, "no doubt on account of the density
of population."[1748] In the _Eumenides_ of Æschylus it is said
(line 520), "Not all the wealth of the great earth can do away
with blood guilt." In Japan blood revenge continued until very
recently. The person who meant to seek it had to give notice in
writing to the criminal court. He was then free to execute his
purpose, but he must not make a riot. The Japanese father family
is a religious corporation, and the family bond is that of a
cult.[1749] The Japanese view is the half-civilized view, where
the kin sentiment is highly developed and the civil interest is
only imperfectly apprehended. In Scandinavia the feeling that it
is base to take compensation for blood continued until a late
time. We find in the saga of Grettir the Strong[1750] that
banishment is used instead of blood revenge. This was thought to
be a letting down of honor. Life and honor as well as property
were under the protection of kin. Blood revenge was a holy duty.
The son could not take his inheritance until he had avenged his
father. Attempts were made to introduce the weregild. The fine
for killing an old man or a woman was twice as much as for an
able-bodied man. The slayer with twelve of his kin must swear
that he would be content with the payment if the case were his,
and the friends of the deceased must swear to let the matter
drop.[1751] Amongst the tribes of the Caucasus, who live by
custom, blood revenge is now a living institution. The Ossetes
have the father family in its extremest development. The surname
is the mark of kinship, and the duty of blood revenge falls on
those with the same surname to the hundredth cousin. One's
mother's brother is not in one's kin, and there is no duty of
blood revenge for him. Sometimes blood revenge is superseded by
the arbitration of a tribunal which is voluntarily
accepted.[1752]
+548. Blood revenge in Israel.+ The law of Israel was, "Ye shall
take no ransom for the life of a manslayer, which is guilty of
death; but he shall surely be put to death."[1753] This law
upheld blood revenge by forbidding the first and most obvious
alleviation of it, but verses 22 and 23 distinguished accidental
from intentional homicide and verse 27 provided that the avenger
of blood should not be guilty of blood. This arrested any feud.
The institution of cities of refuge was derived from the
Canaanites and developed in Israel.[1754] Blood revenge was a
duty of the whole family and was originally directed against the
entire family of the slayer.[1755] This the later law
forbade.[1756] At first also every beast or inanimate object
which caused death was guilty. In Deut. xxi provision is made
for the case of a murdered man whose corpse is found, with
customs of wide range for performing rites of purification, and
washing hands to put away guilt or suspicion.
+549. Peace units and peace pacts.+ The in-group when it is merged in a
state by conquest and compounding becomes a peace unit. All in the same
civil body are united by a peace pact. If the central authority cannot
suppress local war and private war, it is inadequate, and the state is
liable to disruption. The Roman empire was a peace unit of high
integration and complete efficiency. It could not, however, maintain
itself, and broke up by internal strife which the central authority
could not suppress. The Roman law was the peace pact of that peace unit.
It was so good a solution of the collisions of human interests that it
has been borrowed, or used by modern states as a model. The Romish
church in the Middle Ages tried to rule the world, not by force but by
dogmas like catholicity. Catholicity was an attempt to build a peace
pact on ideals, and big ideas, and sympathies. Islam also tries to serve
as a peace pact, but Moslem states have freely fought with each other.
Islam does not contain an adequate philosophy. Its theories of society
are theocratic and do not meet the actual facts and problems. If a union
of two or more states is made, even for the purpose of aggregating more
force for war, it will necessarily be a peace union when regarded from
within. A confederation is the highest organization yet invented for the
purpose of making a great peace union without interfering with domestic
autonomy. Norway and Sweden, Austria and Hungary, are states united in
couples under a rational peace pact. The former couple has been
disrupted; the latter is convulsed by quarrels between its members. The
United States is a great peace unit, with a rational peace pact as a
bond of union. It has gone through one great convulsion, from which it
issued with the peace pact greatly strengthened. It tends to become a
consolidated empire. This can be seen in the propositions to turn over
various subjects of domestic importance to the federal authority.
Happiness and prosperity have been due to the peace pact, valid over a
continent, with immunity from powerful neighbors. We now think that we
will renounce all this and go out after world power and glory so as to
be like the other nations.
+550. The instability of great peace unions.+ Now that we have the laws
of Hammurabi we can see that the Euphrates valley was organized into a
peace unit with a very complete and highly finished peace pact
twenty-five hundred years before Christ. All the ordinary cases of
discord and diverse interest were provided for under an elaborate system
of laws as good as that of a modern European state. The later states of
western Asia were involved in war by conflicting interests, ambition,
and jealousy until the time of Alexander the Great. The smaller states
were at last all submerged in the Roman empire. All the constructive
work has been overthrown again and again. Only within a century or two
has a structure been set up which has more stability, but it is all in
jeopardy now. A union of the existing groups could not be brought about
but by conquest, and that would mean very great wars, yet all are ready,
by virtue of their institutions and ideas, to merge in a confederation
in which peace would reign and incalculable blessings would result.
+551. The Arabs.+ The Arabs in the time of Mohammed were a nation
inhabiting a territory which kept them from feeling any national
sentiment of unity.[1757] The tribe and kin group were their strongest
societal units. At the time of Mohammed's birth blood revenge between
the kin groups was so destructive that all were instinctively struggling
towards devices which might supersede it. In the century preceding
Mohammed's birth the nation had been agitated by social movements in
which the old was falling and the new was pushing out to acceptance and
establishment. "It seemed as if the persons were too big for the
circumstances."[1758] If a tribe ever was a peace group amongst the
Arabs, we have no proof of it. Islam was an attempt to unite the whole
nation into a peace group by religion. The attempt succeeded, and the
nation, in the élan of its new unity and energy, set out to conquer its
neighbors. It had no state organization. The caliph was theological as
well as civil head. The Arabs had no political experience. The leaders
in the kin groups were the only chiefs they had, and they established a
kind of aristocracy in Persia, but the first caliphs were pure despots,
like negro heads of states. The Arabs plundered the conquered states.
The greatest duty known to the Arabs was blood revenge. It was their
only social engine by which to restrain crime and secure some measure of
order. Blood was, in their view, more holy than anything else. It put
religion in the background. The kin group was the realized ideal. The
gods were comparatively insignificant.[1759] In old Arabia a man engaged
in a blood feud must abstain from women, wine, and unguents.[1760]
Within the kin group there was no blood revenge, but a guilty person was
held personally responsible. A guest friend ("stranger within thy
gates") was not liable to blood revenge with his own kin. His status was
in the tribe in which he was a guest, by which he must be defended
against his tribe of origin, if the case arose.[1761] The Arabs thought
it dishonorable to take money for blood guilt. It was, they thought,
like selling the blood of one's kin. Bedouin tribes in the nineteenth
century refused to settle blood feuds by payments. Arbitration was
admitted in the time of Mohammed, at Medina, where old blood feuds had
become intolerable by their consequences.[1762] In Egypt, in the first
half of the nineteenth century, blood revenge was still observed. Third
cousins of the murderer and his victim were the limits of responsibility
on either side.[1763]
+552. Development of the philosophy of blood revenge.+ Blood revenge was
nothing but an exercise of revenge and it had all the limitations of
revenge. It produced a rude fear of consequences and had some of the
effects of the administration of justice. However, it had no process of
proof, no due notion of guilt, no means of following up responsibility.
Therefore it could not infuse fear into the hearts of the guilty. It was
entirely irrational. Therefore it ran into extravagance without due
connection of guilt and punishment, and it cost very many lives of the
innocent. In primitive society injuries consist in the invasion of a
man's interests through his property, his wife, and his children, or by
maiming or killing himself. Each one, when he considers himself injured,
tries to redress himself. If he is not able to do it he falls back on
others for aid. The kin group is the only body which has ties of
sympathy and obligation to him. The kin group may be bound to give help
without any regard to the justness of the quarrel, or it gets the
function of a jury. Evidently the latter case is more reasonable and
civilized than the former. In the original institution of blood revenge
the individual was called on to sacrifice himself for others. He was a
bad man if he began an inquiry into the conduct of the man who called
for the sacrifice. He ought to obey the call whether it came from one
who had done right or wrong.[1764] Evidently, in this view, the
institution was a case of social duty, not of goblinistic service to the
dead. It was a further application of rationalism and justice when the
behavior of the deceased was weighed before decreeing blood revenge. If
the kin group decides that the injury is real and that it is properly
called on to interfere, routine of method of investigation will be
developed, rights will be defined, the duty of blood revenge will be
defined and limited, and proceedings of redress will be invented. All
this work is done in the folkways and by the methods of folkways. The
steps lie along the line of advancing civilization. The notion that a
man who had committed a murder and had been killed for it had got what
he deserved is a very recent and civilized notion. That would not keep
his ghost from demanding to be laid by blood atonement. This was the
root idea out of which the custom of blood revenge arose. Blood
atonement was a notion in goblinism. It was one of the very earliest
cases we can find in which there was a notion of duty and social
obligation. The kin were those on whom the duty fell. The strong
sympathy of men of the same kin was a consequence, not a cause, but it
superseded, later, the original cause. At first, the play of revenge
gave satisfaction to wounded vanity, but that could only last while the
case was personal and close, not when the cases and the obligations were
remote and institutional. Another remoter, and perhaps unforeseen,
consequence was the deterrent effect on crime. The law of retaliation
also, "an eye for an eye," was a _law_. It had a primitive and crude
justice in it. It has come down to our own time in "reprisals" as
practiced in international quarrels, which include also the solidarity
of responsibility of all in a group for the torts of each member of it.
By producing a solidarity of interest on both sides blood revenge helped
to produce a social philosophy. It also made each interest group a peace
group inside, because only by being a peace group could it conserve all
its force. Thus the war interest against outsiders and the interest of
concord inside worked together to produce order, government, law, and
rights.
+553. Alleviations of blood revenge.+ The Arabs, in their efforts to
supersede blood revenge, tried compurgation, tribunals, payments in
composition, banishment, and arbitration. Many tribes which have adopted
Mohammedanism still practice blood revenge.[1765] Amongst the Kabyles a
man falls under it if he kills another by accident, or by the fault of
the victim, or in preventing a crime.[1766]
+554. The king's peace.+ In the history of civilization the devices to
do away with blood revenge are those which have been incidentally
mentioned. The last means of suppressing all forms of private war was
the king's peace. In modern states due respect to the king required that
there should be no quarreling or fighting in his presence. His presence
was interpreted to mean in or near his residence, his court, and his
environs. Then his peace was interpreted to cover his highroads, and his
jurisdiction was presently held to go as far as his peace, because he
must have authority to enforce his peace. When small states were united
into big ones the peace bond had to be extended over the larger unit.
Gradually all petty jurisdictions were absorbed, all justice and redress
came from the king or in his name, and private redress was forbidden.
For a long time it seemed that the freeman's prerogative was being taken
from him. As long as the duel survives the movement is incomplete.
+555. Origin of criminal law.+ When the state took control of injuries
and acts of violence and undertook to revenge them on behalf of the
victims, as well as in vindication of public authority and order,
injuries became crimes and revenge became punishment. Crimes were
injuries which could be compensated for, and also violations of the
king's peace, that is, of public welfare. In the latter point of view
they brought the king's vanity into play. The German emperor Frederick
II, by his ferocity against rebels, showed how potent wounded vanity is,
as a motive, even in an able man. The crime of treason or rebellion
always excites the vanity and fierce revenge of civil authority. It is
beyond question that the state in its penalties simply took over the
usages of kin groups in inflicting retaliation or gratifying revenge. It
did not philosophize. It assumed functions, and with them it took the
methods of procedure and the instrumentalities which it found in use for
those functions. Criminal law, therefore, and criminal administration
were developed out of blood revenge when it was rendered rational and
its traditional processes were subjected to criticism.
[1720] Sieroshevski, _Yakuty_ (_Polish version_), 248.
[1721] Clement, _Das Recht der Salischen Franken_, 243.
[1722] W. R. Smith, _Relig. of the Semites_, 274.
[1723] JAI, XX, 53.
[1724] _Ibid._, XIV, 352.
[1725] Cunow, _Verwandtschafts-organization der Austral._, 126.
[1726] Spencer and Gillen, _Cent. Austral._, 265.
[1727] Pfeil, _Aus der Südsee_, 18, 143.
[1728] _U. S. Nat. Mus._, 1888, 379.
[1729] _Bur. Eth._, XVII, Part I, 199.
[1730] Lecky, _Eur. Morals_, II, 280.
[1731] Wilutzky, _Mann und Weib_, 121.
[1732] _Smithson. Rep._, 1893, 595.
[1733] Lippert, _Kulturgesch._, I, 265.
[1734] Geijer, _Svenska Folkets Hist._, I, 112.
[1735] Risley, _Ethnog. of India_, I, 67.
[1736] Deut. xix; Josh. xx.
[1737] Num. xxxv.
[1738] _Unter den Papuas_, 256.
[1739] _Neu Guinea_, 199.
[1740] JAI, XI, 67; XXVI, 174; XXVII, 25, 36.
[1741] _Bur. Eth._, VI, 582; XI, 186; XVIII, Part I, 292.
[1742] Powers, _Calif. Indians_, 21.
[1743] Martius, _Ethnog. Brasil._, 127.
[1744] _Ibid._, 693; Schomburgk, _Brit. Guiana_, II, 460.
[1745] Smyth, _Aborig. of Vict._, I, 129; II, 229.
[1746] Veth, _Borneo's Wester Afdeeling_, II, 283.
[1747] Ellis, _Ewe-speaking Peoples_, 208.
[1748] Paulitschke, _Ethnog. N.O. Afrikas_, I, 262; II, 151, 156.
[1749] Hearn, _Japan_, 321.
[1750] P. 250.
[1751] Geijer, _Svenska Folkets Hist._, I, 300.
[1752] von Haxthausen, _Transkaukasia_, 26, 29, 50.
[1753] Num. xxxv. 31.
[1754] Maurer, _Völkerkunde, Bibel, und Christenthum_, I, 164.
[1755] 2 Sam. xiv. 7.
[1756] Deut. xxiv. 16; 2 Kings xiv. 6; Ezek. xviii. 19.
[1757] Wellhausen, _Skizzen und Vorarbeiten_, III, 182.
[1758] _Ibid._, 196.
[1759] Wellhausen, _Skizzen und Vorarbeiten_, III, 194.
[1760] W. R. Smith, _Relig. of the Semites_, 482.
[1761] The Hebrew law was, "The stranger that sojourneth with you
shall be unto you as the home-born among you" (Levit. xix. 34).
[1762] Proksch, _Blutrache bei den Arabern_, 18, 30, 33, 36, 51,
54.
[1763] Lane, _Mod. Egypt._, I, 295.
[1764] Wellhausen, _Skizzen und Vorarbeiten_, III, 194.
[1765] Proksch, _Blutrache bei den Arabern_.
[1766] Hanoteau et Letourneux, _La Kabylie_.