PRELIMINARY REMARKS--HOMICIDE IN GENERAL
WE have discussed the general nature of those phenomena which have a
tendency to evoke moral blame or moral praise. We have seen that moral
judgments are passed on conduct and character, and we have seen why
this is the case. It now remains for us to examine the particular
modes of conduct which are subject to moral valuation, and to consider
how these modes of conduct are judged of by different peoples and in
different ages.
If carried out in every detail such an investigation could never come
to an end. Among other things, it would have to take into account all
customs existing among the various races of men, since every custom
constitutes a moral rule. And the impossibility of any such
undertaking becomes apparent when we consider the extent to which the
conduct of man, and especially of savage man, is hampered by custom.
Among the Wanika, for instance, "if a man dares to improve the style
of his hut, to make a larger doorway than is customary; if he should
wear a finer or different style of dress to that of his fellows, he is
instantly fined."[1] If, during the performance of a ceremony, the
ancestors of an Australian native were in the habit of painting a
white line across the forehead, their descendant must do the same.[2]
Dr. Nansen's statement with reference to the Greenlanders, {328} that
their communities had originally customs and fixed rules for every
possible circumstance,[3] is essentially true of many, if not all, of
the lower races.
[Footnote 1: New, _Life, Wanderings, and Labours in Eastern Africa_,
p. 110.]
[Footnote 2: Spencer and Gillen, _Native Tribes of Central Australia_,
p. 11.]
[Footnote 3: Nansen, _Eskimo Life_, p. 104.]
It is necessary, then, that we should restrict ourselves to the more
important modes of conduct with which the moral consciousness of
mankind is concerned. These modes of conduct may be conveniently
divided into six groups. The first group includes such acts,
forbearances, and omissions as directly concern the interests of other
men, their life or bodily integrity, their freedom, honour, property,
and so forth. The second includes such acts, forbearances, and
omissions as chiefly concern a man's own welfare, such as suicide,
temperance, asceticism. The third group, which partly coincides with,
but partly differs from, both the first and the second, refers to the
sexual relations of men. The fourth includes their conduct towards the
lower animals; the fifth, their conduct towards dead persons; the
sixth, their conduct towards beings, real or imaginary, that they
regard as supernatural. We shall examine each of these groups
separately, in the above order. And, not being content with a mere
description of facts, we shall try to discover the principle which
lies at the bottom of the moral judgment in each particular case.
* * * * *
It is commonly maintained that the most sacred duty which we owe our
fellow-creatures is to respect their lives. I venture to believe that
this holds good not only among civilised nations, but among the lower
races as well; and that, if a savage recognises that he has any moral
obligations at all to his neighbours, he considers the taking of their
lives to be a greater wrong than any other kind of injury inflicted
upon them.
Among various uncivilised peoples, however, human life is said to be
held very cheap.
The Australian Dieyerie, we are told, would for a mere trifle kill
their dearest friend.[4] In Fiji there is an "utter disregard of {329}
the value of human life."[5] A Masai will murder his friend or
neighbour in a fight over a herd of captured cattle, and "live not a
whit the less merrily afterwards."[6] Among the Bachapins, a Bechuana
tribe, murder "excites little sensation, excepting in the family of
the person who has been murdered; and brings, it is said, no disgrace
upon him who has committed it; nor uneasiness, excepting the fear of
their revenge."[7] The Oráons of Bengal "are ready to take life on
very slight provocation," and Colonel Dalton doubts whether they see
any moral guilt in it.[8] Some of the Himalayan mountaineers are
reported to put men to death merely for the satisfaction of seeing the
blood flow and of marking the last struggles of the victim.[9] Among
the Pathans, on the north-western frontier of the Punjab, "there is
hardly a man whose hands are unstained," and each person "counts up
his murders."[10]
[Footnote 4: Gason, 'Manners and Customs of the Dieyerie Tribe,' in
Woods, _Native Tribes of South Australia_, p. 258.]
[Footnote 5: Williams and Calvert, _Fiji and the Fijians_, p. 115.]
[Footnote 6: Johnston, _Kilima-njaro Expedition_, p. 419.]
[Footnote 7: Burchell, _Travels in the Interior of Southern Africa_,
ii. 554.]
[Footnote 8: Dalton, _Descriptive Ethnology of Bengal_, p. 256.]
[Footnote 9: Fraser, _Journal of a Tour through the Him[=a]l[=a]
Mountains_, p. 267.]
[Footnote 10: Temple, quoted by Spencer, _Principles of Ethics_, i.
343. For other instances of the indifference of savages to human life,
see Egede, _Description of Greenland_, p. 123; Cranz, _History of
Greenland_, i. 177; Holm, 'Ethnologisk Skizze af Angmagsalikerne,' in
_Meddeleser om Grönland_, x. 87, 179 _sq._; Coxe, _Russian Discoveries
between Asia and America_, p. 257 (Aleuts of Unalaska);
Krasheninnikoff, _History of Kamtschatka_, p. 204; Steller,
_Beschreibung von dem Lande Kamtschatka_, p. 294; Boyle, _Adventures
among the Dyaks of Borneo_, p. 116 (Malays); Powell, _Wanderings in a
Wild Country_, p. 262 (aborigines of New Britain); Scaramucci and
Giglioli, 'Notizie sui Danakil,' in _Archivio per antropologia e la
etnologia_, xiv. 26; Wilson and Felkin, _Uganda_, ii. 310 (Gowane);
Schweinfurth, _Heart of Africa_, i. 286 (Bongo); Arnot, _Garenganze_,
p. 71 (Barotse); Tuckey, _Expedition to Explore the River Zaire_, p.
383 (Congo natives); Waul, _Five Years with the Congo Cannibals_, p.
105 (Bolobo).]
On the other hand, there are uncivilised peoples among whom homicide
or murder is said to be hardly known.
Among the Omahas, "before liquor was introduced there were no
murders, even when men quarrelled."[11] Captain Lyon could learn of no
instances of manslaughter having ever occurred among the Eskimo of
Igloolik.[12] In Tutuila, of the Samoa group, according to Brenchley,
there had been but one case of assassination in the course of twenty
years.[13] The Veddahs of Ceylon know of manslaughter only as a
punishment.[14] {330} The Bedouin of the Euphrates, says Mr. Blunt, "is
essentially humane, and never takes life needlessly. If he has killed
a man in war he rather conceals the fact than proclaims it aloud,
while murder or even homicide is almost unknown among the tribes."[15]
Among the Bakwiri, in Cameroon, Zoller never heard of any person
having killed a member of his own community.[16] Murders, says
Caillié, "are rare among the Bambaras, and never committed by the
Mandingoes."[17] Among the Wanika "wilful cold-blooded murders are
almost unknown."[18] Among the Basutos perfect safety is enjoyed "on
roads where the traveller might have been robbed a hundred times over
without the least hope of aid, and in houses where the doors and
windows have neither bolts nor bars," and cases of murder are very
rare.[19]
[Footnote 11: Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._
iii. 369.]
[Footnote 12: Lyon, _Private Journal_, p. 350.]
[Footnote 13: Brenchley, _Jottings during the Cruise of H.M.S.
"Curaçoa" among the South Sea Islands_, p. 58.]
[Footnote 14: Sarasin, _Ergebnisse naturwissenschaftlicher Forschungen
auf Ceylon_, iii. 539. _Cf._ Tennent, _Ceylon_, ii. 444. Hartshorne,
in _Indian Antiquary_, viii. p. 320.]
[Footnote 15: Blunt, _Bedouin Tribes of the Euphrates_, ii. 203. _Cf._
_ibid._ ii. 207.]
[Footnote 16: Zöller, _Kamerun_, i. 188.]
[Footnote 17: Caillié, _Travels through Central Africa_, i. 353.]
[Footnote 18: New, _op. cit._ p. 98.]
[Footnote 19: Casalis, _Basutos_, p. 301. For other instances, see
Hall, _Arctic Researches_, p. 571 (Eskimo); Dobrizhoffer, _Account of
the Abipones_, ii. 148; Turner, _Samoa_, p. 178; Ellis, _Tour through
Hawaii_, p. 429; Brooke, _Ten Years in Saráwak_, i. 61 (Sea Dyaks);
Low, _Sarawak_, p. 133; Marsden, _History of Sumatra_, p. 471 (Poggi
Islanders); Steller, _De Sangi-Archipel_, p. 26; Riedel, _De sluik- en
kroesharige rassen tusschen Selebes en Papua_, p. 41 (Ambon and Uliase
Islanders); von Siebold, _Aino auf der Insel Yesso_, pp. 11, 35;
Munzinger, _Ostafrikanische Studien_, p. 532 (Barea and Kunáma);
Holub, _Seven Years in South Africa_, ii. 319 (Marutse); Maclean,
_Compendium of Kafir Laws and Customs_, pp. 61, 143 _sq._; Shooter,
_Kafirs of Natal_, p. 137.]
In other instances homicide is expressly said to be regarded as wrong.
The Greenlanders described by Dr. Nansen hold it atrocious to kill
a fellow-creature, except in some particular cases.[20] The Dacotahs
say that it is a great crime to take their fellow's life, unless in
revenge, "because all have a right to live."[21] In Tierra del Fuego
homicide rarely occurs, as Mr. Bridges remarks, because of an
inveterate custom according to which human life is held sacred: "le
meurtrier est mis au ban de ses compatriotes; isolé de tous, il est
fatalement condamné à périr de faim ou à tomber un jour sous les coups
d'un groupe de justiciers improvisés."[22] The Andaman Islanders
condemn murder as _y[=u]bda_, or sin.[23] The natives of Botany Bay,
New {331} South Wales, though a trivial offence in their ideas
justifies the murder of a man, "highly reprobate the crime when
committed without what they esteem a just cause."[24] According to Mr.
Curr's experience, the Australian Black undoubtedly feels that murder
is wrong, and its committal brings remorse; even after the
perpetration of infanticide or massacres, though both are practised
without disguise, those engaged in them are subject to remorse and low
spirits for some time.[25]
[Footnote 20: Nansen, _Eskimo Life_, p. 162.]
[Footnote 21: Prescott, in Schoolcraft, _Indian Tribes of the United
States_, ii. 195.]
[Footnote 22: Hyades and Deniker, _Mission scientifique du Cap Horn_,
vii. 374, 243.]
[Footnote 23: Man, in _Jour. Anthr. Inst._ xii. 112.]
[Footnote 24: Barrington, _History of New South Wales_, p. 19. _Cf._
Lumholtz, _Among Cannibals_, p. 126 (natives of Northern
Queensland).]
[Footnote 25: Curr, _The Australian Race_, i. 100, 43 _sq._ For other
instances, see Keating, _Expedition to the Source of St. Peter's
River_, i. 127 (Potawatomis); Harmon, _Journal of Voyages in the
Interior of North America_, p. 348 (Indians on the east side of the
Rocky Mountains); Hall, _Arctic Researches_, p. 572 (Eskimo); Mariner,
_Natives of the Tonga Islands_, ii. 162; Macdonald, _Oceania_, p. 208
(Efatese); Yate, _Account of New Zealand_, p. 145; Arbousset and
Daumas, _Exploratory Tour to the North-East of the Colony of the Cape
of Good Hope_, p. 322 (Bechuanas); Fritsch, _Die Eingeborenen
Süd-Afrikra's_, p. 322 (Hottentots).]
It is of particular importance in this connection to note that, in
early civilisation, blood-revenge is regarded not as a private matter
only, but as a duty, and that, where this custom does not prevail, the
community punishes the murderer, frequently with death. We may without
hesitation accept Professor Tylor's statement that "no known tribe,
however low and ferocious, has ever admitted that men may kill one
another indiscriminately."[26] In every society--even where human life
is, generally speaking, held in low estimation--custom prohibits
homicide within a certain circle of men. But the radius of the circle
varies greatly.
[Footnote 26: Tylor, 'Primitive Society,' in _Contemporary Review_,
xxi. 714.]
Savages carefully distinguish between an act of homicide committed
within their own community and one where the victim is a stranger.
Whilst the former is under ordinary circumstances disapproved of, the
latter is in most cases allowed, and often regarded as praiseworthy.
It is a very common notion in savage ethics that the chief virtue of a
man is to be successful in war and to slay many enemies.
Among the Káfirs of the Hindu-Kush "killing strangers might or
might not be considered inexpedient, but it would {332} hardly be
considered a crime"; killing fellow-tribesmen, on the other hand, is
looked upon in a very different light.[27] The Koriaks do not regard
murder as a great crime, unless it occur within their own tribe.[28]
The early Aleuts considered the killing of a companion a crime worthy
of death, "but to kill an enemy was quite another thing."[29] To an
Aht Indian the murder of a man is no more than the killing of a dog,
provided that the victim is not a member of his own tribe.[30]
According to Humboldt, the natives of Guiana "detest all who are not
of their family, or their tribe; and hunt the Indians of a
neighbouring tribe, who live at war with their own, as we hunt
game."[31] In the opinion of the Fuegians, "a stranger and an enemy
are almost synonymous terms," hence they dare not go where they have
no friends, and where they are unknown, as they would most likely be
destroyed.[32] The Australian Black nurtures an intense hatred of every
male at least of his own race who is a stranger to him, and would
never neglect to assassinate such a person at the earliest moment that
he could do so without risk to himself.[33] In Melanesia, also, a
stranger as such was generally throughout the islands an enemy to be
killed.[34]
[Footnote 27: Scott Robertson, _Káfirs of the Hindu-Kush_, p. 194.]
[Footnote 28: Krasheninnikoff, _op. cit._ p. 232.]
[Footnote 29: Veniaminof, quoted by Petroff, 'Report on Alaska,' in
_Tenth Census of the Untied States_, p. 155.]
[Footnote 30: Sproat, _Scenes and Studies of Savage Life_, p. 152.]
[Footnote 31: von Humboldt, _Personal Narrative of Travels_, v. 422.]
[Footnote 32: Stirling, in _South Ammerican Missionary Magazine_, iv.
11. Bridges, in _A Voice for South America_, xiii. 210.]
[Footnote 33: Curr, _The Australian Race_, i. 64, 85 _sq._ Mathew, in
_Jour. & Proceed. Roy. Soc. N. S. Wales_, xviii. 398.]
[Footnote 34: Codrington, _Melanesians_, p. 345.]
In Savage Island the slaying of a member of another tribe--that is,
a potential enemy--"was a virtue rather than a crime."[35] To a young
Samoan it was the realisation of his highest ambition to be publicly
thanked by the chiefs for killing a foe in mortal combat.[36]
"According to Fijian beliefs, men who have not slain any enemy are, in
the other world, compelled to beat dirt with their clubs--the most
degrading punishment the native mind can conceive--because they used
their club to so little purpose;[37] and in Futuna it was deemed no
less necessary to have poured out blood on the field of battle in
order to hold a part in the happy future life.[38] In the Western
islands of Torres Straits "it was a meritorious deed to kill
foreigners either in fair fight {333} or by treachery, and honour and
glory were attached to the bringing home of the skulls of the
inhabitants of other islands slain in battle."[39] In the Solomon
Islands,[40] New Guinea,[41] and various parts of the Malay
Archipelago, he who has collected the greatest number of human heads
is honoured by his tribe as the bravest man; and some peoples do not
allow a man to marry until he has cut off at least one human head.[42]
Among many of the North American Indians, again, he who can boast of
the greatest number of scalps is the person most highly esteemed.[43]
Among the Seri Indians the highest virtue "is the shedding of alien
blood; and their normal impulse on meeting an alien is to kill, unless
deterred by fear."[44] Among the Chukchi "it is held criminal to
thieve or murder in the family or race to which a person belongs; but
these crimes committed elsewhere are not only permitted, but held
honourable and glorious."[45] So, too, the Gallas consider it
honourable to kill an alien, though criminal to kill a countryman.[46]
[Footnote 35: Thomson, _Savage Island_, p. 104. See also _ibid._ p. 94.]
[Footnote 36: Pritchard, _Polynesian Reminiscences_, p. 57.]
[Footnote 37: Seemann, _Viti_, p. 401. _Cf._ Williams and Calvert,
_op. cit._ p. 97 _sq._; Erskine, _Islands of the Western Pacific_,
p. 248.]
[Footnote 38: Smith, in _Jour. Polynesian Society_, i. 39.]
[Footnote 39: Haddon, in _Reports of the Cambridge Anthropological
Expedition to Torres Straits_, v. 277.]
[Footnote 40: Romilly, _Western Pacific_, p. 73. Penny, _Ten Years in
Melanesia_, p. 46. Codrington, _op. cit._ p. 345.]
[Footnote 41: Romilly, _Western Pacific_, p. 76.]
[Footnote 42: Bock, _Head-Hunters of Borneo_, pp. 216, 221, &c.
(Dyaks). Bickmore, _Travels in the East Indian Archipelago_, p. 205
(Alfura of Ceram). Dalton, _op. cit._ p. 40 (Nagas of Upper Assam).]
[Footnote 43: The well-known practice of scalping, though very common,
was not universal among the North American Indians (see Gibbs, 'Tribes
of Western Washington and Northwestern Oregon,' in _Contributions to
N. American Ethnology_, i. 192; Powers, _Tribes of California_, p. 321).]
[Footnote 44: McGee, 'Seri Indians,' in _Ann. Rep. Bur. Ethnol._
xvii. 132.]
[Footnote 45: Georgi, _Russia_, iii. 183.]
[Footnote 46: Macdonald, _Africana_, i. 229. For other instances, see
Harmon, _op. cit._ p. 301 (Tacullies); Burton, _City of the Saints_,
p. 139 (Dacotahs); Macpherson, _Memorials of Service in India_, p.
94 (Kandhs); MacMahon, _Far Cathay_, p. 262 (Indo-Burmese border
tribes); Macdonald, _Africana_, i. 194 _sq._ (Eastern Central
Africans); Johnston, _Kilima-njaro Expedition_, p. 419 (Masai).]
At the same time there are, among the lower races, various instances
in which the rule, "Thou shalt not kill," applies even to foreigners.
Hospitality, as will be seen in a subsequent chapter, is a stringent
duty in the savage world. Custom requires that the host should
entertain and protect a stranger who comes as his guest, and by
killing him the host would perpetrate an outrage hardly possible.
Moreover, even in the case of intertribal relations, we must not
conclude that what is allowed in war is also allowed in times of
peace. The prohibition of homicide may extend beyond the tribal
border, to {334} members of different tribes who for some reason or
other are on friendly terms with each other.[47] We must not suppose
that a tribe of savages generally either lives in a state of complete
isolation, or is always at odds with its neighbours. In Australia, for
instance, one tribe of natives, as a rule, entertains amicable
relations with one, two, or more other tribes.[48] Among the Central
Australian natives, say Messrs. Spencer and Gillen, "there is no such
thing as one tribe being in a constant state of enmity with another";
on the contrary, where two tribes come into contact with one another
on the border land of their respective territories, friendly feelings
are maintained between the members of the two.[49] Some uncivilised
peoples are even said to have no wars. The Veddahs of Ceylon never
make war upon each other.[50] According to the reports of the oldest
inhabitants of Umnak and Unalaska, the people there had never been
engaged in war either among themselves or with their neighbours,
except once with the natives of Alaska.[51] To the Greenlanders
described by Dr. Nansen war is "incomprehensible and repulsive, a
thing for which their language has no word."[52]
[Footnote 47: See, _e.g._, Scott Robertson, _op. cit._ p. 194 (Káfirs
of the Hindu-Kush).]
[Footnote 48: Curr, _The Australian Race_, i. 62 _sq._]
[Footnote 49: Spencer and Gillen, _Native Tribes of Central
Australia_, p. 32.]
[Footnote 50: Sarasin, _op. cit._ iii. 488.]
[Footnote 51: Coxe, _op. cit._ p. 244.]
[Footnote 52: Nansen, _Eskimo Life_, p. 162.]
That savages to some extent recognise the existence of intertribal
rights in times of peace is obvious from certain customs connected
with their wars. Some South Sea Islanders and North American Indians
consider it necessary for a party which is about to attack another to
give notice beforehand of their intention, in order that their
opponents may be prepared to meet them.[53] The cessation of
hostilities is often accompanied by the conclusion of a special treaty
and by ceremonies calculated to make it binding.[54] The Tahitians,
for instance, wove a wreath of {335} green boughs furnished by each
side, exchanged two young dogs, and, having also made a band of cloth
together, offered the wreath and the band to the gods with
imprecations on the side which should first violate so solemn a treaty
of peace.[55] Nor does savage custom always allow indiscriminate
slaughter even in warfare. The inviolability of heralds is not
infrequently recognised.[56] Among the aborigines of New South Wales
the tribal messenger known to be a herald by the red net which he
wears round his forehead, passes in safety between and through hostile
tribes;[57] and among the North American Omahas "the bearer of a peace
pipe was generally respected by the enemy, just as the bearer of a
flag of truce is regarded by the laws of war among the so-called
civilised nations."[58] And many uncivilised races have made it a rule
in war to spare the weak and helpless.
[Footnote 53: Hale, _U.S. Exploring Expedition. Vol. VI. Ethnography
and Philology_, p. 72 (Micronesians). Gibbs, _loc. cit._ p. 190
(Indians of Western Washington and North-Western Oregon).]
[Footnote 54: See Farrer, _Military Manners and Customs_, p. 162 _sq._]
[Footnote 55: Ellis, _Polynesian Researches_, i. 318.]
[Footnote 56: See Farrer, _Militarv Manners and Customs_, p. 161.]
[Footnote 57: Fraser, _Aborigines of New South Wales_, p. 41.]
[Footnote 58: Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._
iii. 368.]
The Samoans considered it cowardly to kill a woman;[59] and even in
Fiji the "enlightened party" objected to the killing of women, urging
that it is "just as cowardly to kill a woman as a baby."[60] The
Abipones, in their wars, "generally spared the unwarlike, and carried
away innocent boys and girls unhurt."[61] An old Spanish writer tells
us of the Guanches of Gran Canaria that, "in their wars, they held it
as base and mean to molest or injure the women and children of the enemy,
considering them as weak and helpless, therefore improper objects of
their resentment";[62] and similar views prevail among the Berbers
(Shlu[h.]) of Southern Morocco, as also among the Algerian Kabyles[63]
and the Touareg.[64] Though the Masai and Wa-kikuyu "are eternally at
war to the knife with each other, there is a compact between them not
to molest the womenfolk of either party."[65] "The Masai," says Mr.
Hinde, "never interfere with women in their raids, and the women cheer
{336} loudly and encourage their relatives during the fight."[66]
Among the Latukas, though women are employed as spies and thus become
exceedingly dangerous in war, there is nevertheless a general
understanding that no woman shall be killed.[67] The Basutos maintain
that respect should be paid during war to women, children, and
travellers, as also that those who surrender should be spared and open
to ransom; and, though these rules are not invariably respected, the
public voice always disapproves of their violation.[68]
[Footnote 59: Turner, _Nineteen Years in Polynesia_, p. 304.]
[Footnote 60: Seemann, _Viti_, p. 180.]
[Footnote 61: Dobrizhoffer, _op. cit._ ii. 141.]
[Footnote 62: Abreu de Galindo, _History of the Discovery and Conquest
of the Canary Islands_, p. 66.]
[Footnote 63: Hanoteau and Letourneux, _La Kabylie_, ii. 76.]
[Footnote 64: Hourst, _Sur le Niger et au pays des Touaregs_,
p. 223 _sq._]
[Footnote 65: Thomson, _Through Masai Land_, p. 177.]
[Footnote 66: Hinde, _The Last of the Masai_, p. 6, n.*]
[Footnote 67: Baker, _Albert N'yanza_, i. 355.]
[Footnote 68: Casalis, _op. cit._ p. 223 _sq._ For regard paid to
women, old people, and children in war, see also Richardson, _Arctic
Searching Expedition_, i. 367 (Western Eskimo); Catlin, _North
American Indians_, ii. 240; Azara, _Voyages_, ii. 145 (Payaguas).]
Sometimes custom even requires that the life of the captive shall be
spared.
It is against Masai tradition to kill prisoners of war.[69] Among
the Kabyles "il faut que l'exaspération des partis soit extrême pour
qu'un blessé ou un prisonnier soit mis à mort."[70] The Touareg do not
kill their prisoners after a fight.[71] Among the Bedouins of the
Euphrates "the person of the enemy is sacred when disarmed or
dismounted; and prisoners are neither enslaved nor held to other
ransom than their mares."[72] "Captives," says Mr. Dorsey, "were not
slain by the Omahas and Ponkas. When peace was declared the captives
were sent home, if they wished to go. If not they could remain where
they were, and were treated as if they were members of the tribe."[73]
Among the Wyandots prisoners of war were frequently adopted into the
tribe. "The warrior taking the prisoner has the first right to adopt
him. If no one claims the prisoner for this purpose, he is caused to
run the gauntlet as a test of his courage. If at his trial he behaves
manfully claimants are not wanting, but if he behaves disgracefully he
is put to death."[74]
[Footnote 69: Hinde, _op. cit._ p. 64.]
[Footnote 70: Hanoteau and Letourneux, _op. cit._ 75.]
[Footnote 71: Hourst, _op. cit._ p. 207.]
[Footnote 72: Blunt, _op. cit._ ii. 239.]
[Footnote 73: Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._
iii. 332.]
[Footnote 74: Powell, _ibid._ i. 68.]
Thus we notice even among uncivilised races very obvious traces of
what is called "international law,"[75] if not as a rule, at least as
an exception. On the other hand, the {337} readiness with which war is
engaged in, not only in self-defence or out of revenge, but for the
sake of gain, indicates how little regard is paid to human life
outside the tribe. The Kandhs, for instance, maintain "that a state of
war may be lawfully presumed against all tribes and nations with whom
no express agreement to the contrary exists."[76] And if a few savage
peoples live in perpetual peace, it seems that the chief reason for
this is not a higher standard of morality, but the absence of all
inducements to war.
[Footnote 75: See also Wheeler, _The Tribe, and Intertribal Relations
in Australia_, _passim_.]
[Footnote 76: Hunter, _Annals of Rural Bengal_, iii. 75.]
When we from the lower races pass to peoples more advanced in culture,
we find that the social unit has grown larger, that the nation has
taken the place of the tribe, and that the circle within which
homicide is prohibited as a crime of the first order has been extended
accordingly. But the old distinction between injuries committed
against compatriots and harm done to foreigners remains. Even when the
subject is not touched upon in the laws referring to homicide we may,
from the general attitude of the people towards members of other
nations, infer that public opinion is not very scrupulous as to the
taking of their lives. How the Chinese looked upon the "red-haired
barbarians," the "foreign devils," is well known from recent history.
In former days, Japan's attitude towards her neighbours and the whole
world was that of an enemy and not of a friend.[77] The Vedic hymns
are full of imprecations of misfortune upon men of another race.[78]
That among the ancient Teutons the lot of a stranger was not an
enviable one is testified even by language; the German word _elender_
has acquired its present meaning from the connotation of the older
word which meant an "outlandish" man.[79] The stranger as such--unless
he belonged to a friendly, neighbouring tribe--had originally no legal
rights at all; for his protection he was dependent on individual {338}
hospitality, and hospitality was restricted by custom to three days
only.[80] According to the Swedish Westgöta-Lag, he who killed a
foreigner had to pay no compensation to the dead man's relatives, nor
was he outlawed, nor exiled.[81] The Laws of King Ine let us
understand in what light a stranger was looked upon:--"If a far-coming
man, or a stranger, journey through a wood out of the highway, and
neither shout nor blow his horn, he is to be held for a thief, either
to be slain or redeemed."[82] However, as commerce increased and the
stranger was more often seen in Teutonic lands, royal protection was
extended to him; and a consequence of this was that thenceforth he who
killed the stranger had to pay a _wergeld_, part, or the whole, of
which went to the king.[83] In Greece, in early times, the
"contemptible stranger"[84] had no legal rights, and was protected
only in case he was the guest of a citizen;[85] and even later on, at
Athens, whilst the intentional killing of a citizen was punished with
death and confiscation of the murderer's property, the intentional
killing of a non-citizen was punished only with exile.[86] The Latin
word _hostis_ was originally used to denote a foreigner;[87] and the
saying of Plautus, that a man is a wolf to a man whom he does not
know,[88] was probably an echo of an old Roman proverb. Mommsen
suggests that in ancient days the Romans did not punish the killing of
a foreigner, unless he belonged to an allied nation; but already in
the prehistoric period a change was introduced, the foreigner being
placed under the protection of the State.[89]
[Footnote 77: Griffis, _Religions of Japan_, p. 129.]
[Footnote 78: Roth, 'On the Morality of the Veda,' in _Jour. American
Oriental Society_, iii. 338.]
[Footnote 79: _Cf._ Grimm, _Deutsche Rechtsalterthümer_, p. 396;
Gummere, _Germanic Origins_, p. 288.]
[Footnote 80: Grimm, _op. cit._ p. 397 _sqq._ Brunner, _Deutsche
Rechtgeschichte_, i. 273.]
[Footnote 81: _Westgöta-Lagen I._ Af mandrapi, v. 4 p. 13.]
[Footnote 82: _Laws of Ine_, 20. _Cf._ _Laws of Wihtræd_, 28.]
[Footnote 83: Brunner, _op. cit._ i. 273 _sq._ Gummere, _op. cit._ p.
288. Pollock and Maitland, _History of English Law before the Time of
Edward I._ i. 52.]
[Footnote 84: _Iliad_, ix. 648.]
[Footnote 85: Hermann-Blümner, _Lehrsbüch der griechischen
Privatalterthümer_, p. 492. Schmidt, _Ethik der alten Griechen_, ii. 325.]
[Footnote 86: Meier and Schömann, _Der altische Process_, p. 379.]
[Footnote 87: Cicero, _De officiis_, i. 12.]
[Footnote 88: Plautus, _Asinaria_, ii. 4. 88.]
[Footnote 89: Mommsen, _Römisches Strafrecht_, p. 622 _sqq._]
How little regard is felt for the lives of strangers also appears from
the readiness with which war is waged on {339} foreign nations,
combined with the estimation in which the successful warrior is held
by his countrymen. The ancient Mexicans were never at a loss for an
excuse to pick a quarrel with their neighbours, so as to be able to
procure victims for sacrifices to their gods.[90] "No profession was
held in more esteem amongst them than the profession of arms. The
deity of war was the most revered by them, and regarded as the chief
protector of the nation."[91] The Mayas not only wanted to increase
their dominions by encroachments upon their neighbours' territory, but
undertook raids with no other object than that of obtaining captives
for sacrifice.[92] Speaking of the wars of the ancient Egyptians, M.
Amélineau observes, "Nous n'avons pas un seul mot dans la littérature
égyptienne, même dans les [oe]uvres égypto-chrétiennes, qui nous fasse
entendre le plus léger cri de réprobation pour la guerre et ses
horreurs."[93] Among the Hebrews the most cruel wars of extermination
were expressly sanctioned by their religion. That an idolatrous people
had no right to live was taken as a matter of course; but wars were
also unscrupulously waged from worldly motives, and in their moral
code there is no attempt to distinguish between just and unjust
war.[94] Among the Mohammedans it is likewise the unbeliever, not the
foreigner as such, that is regarded as the most proper object of
slaughter. Although there is no precept in the Koran which, taken with
the context, justifies unprovoked war,[95] the saying that "Paradise
is under the shadow of swords"[96] is popularly applied to all warfare
against infidels. Among the Celts[97] and Teutons a man's highest
aspiration was to acquire military glory. The Scandinavians considered
it a disgrace for a man to die {340} without having seen human blood
flow;[98] even the slaying of a tribesman they often regarded lightly
when it had been done openly and bravely. In Greece, in ancient times
at least, war was the normal relation between different states, and
peace an exception, for which a special treaty was required;[99] while
to conquer and enslave barbarians was regarded as a right given to the
Greeks by Nature. The whole statecraft of the early Republic of Rome
was no doubt based upon similar principles;[100] and in later days,
also, the war policy of the Romans was certainly not conducted with
that conscientiousness which was insisted upon by some of their writers.
[Footnote 90: Bancroft, _Native Races of the Pacific States_, ii. 420.
Clavigero, _History of Mexico_, i. 371.]
[Footnote 91: Clavigero, _op. cit._ i. 363.]
[Footnote 92: Bancroft, _op. cit._ ii. 740, 745.]
[Footnote 93: Amélineau, _L'évolution des idées morales dans l'Égypte
ancienne_, p. 344.]
[Footnote 94: _Cf._ Seldeft, _De Synedriis et Præfecturis Juridicis
veterum Ebræorum_, iii. 12, p. 1179 _sqq._; Lament, _Études sur
l'histoire de l'humanité_, i. 384 _sq._]
[Footnote 95: This was later on admitted by Lane (_Modern Egyptians_,
p. 574), who had previously maintained that the duty of waging holy
war is strongly urged in the Koran.]
[Footnote 96: Pool, _Studies in Mohammedanism_, p. 246.]
[Footnote 97: Logan, _The Scottish Gael_, i. 101. de Valroger, _Les
Celtes_, p. 186.]
[Footnote 98: _Njála_, ch. 40, vol. i. 167. Maurer, _Rekehrung des
Norwegischen Stammes_, ii. 172.]
[Footnote 99: Schmidt, _Ethik der alten Griechen_, ii. 280. Laurent,
_op. cit._ i. 46. Plato, _Leges_, i. 625. Livy, xxxi. 29: "Cum
alienigenis, cum barbaris aeternum omnibus Graecis bellum est."]
[Footnote 100: _Cf._ Lecky, _History of European Morals_, ii. 257.]
However, the foreigner is not entirely, or under all circumstances,
devoid of rights. Among the nations of archaic civilisation, as among
the lower races, hospitality is a duty, and the life of a guest is as
sacred as the life of any of the permanent members of the household.
In various cases the commencement of international hostilities is
preceded by special ceremonies, intended to justify acts which are not
considered proper in times of peace. In ancient Mexico it was usual to
send a formal challenge or declaration of war to the enemy, as it was
held discreditable to attack a people unprepared for defence;[101]
and, according to the fecial law of the Romans, no war was just unless
it was undertaken to reclaim property, or unless it was solemnly
denounced and proclaimed beforehand.[102] In some cases warfare is
condemned, or a distinction is made between just and unjust war with
reference to the purpose for which the war is waged. The Chinese
philosophers were great advocates of peace.[103] According to
Lao-Tsze, a superior man uses weapons "only on the compulsion of
necessity";[104] there is no calamity greater {341} than lightly
engaging in war,[105] and "he who has killed multitudes of men should
weep for them with the bitterest grief."[106] In the Indian poem,
Mahabharata, needless warfare is condemned; it is said that the
success which is obtained by negotiations is the best, and that the
success which is secured by battle is the worst.[107] Among the
Hebrews the sect of the Essenes went so far in their reprobation of
war that they would not manufacture any martial instruments
whatever.[108] Roman historians, even in the case of wars with
barbarians, often discuss the sufficiency or insufficiency of the
motives "with a conscientious severity a modern historian could hardly
surpass."[109] According to Cicero, a war, to be just, ought to be
necessary, the sole object of war being to enable us to live
undisturbed in peace. There are two modes of settling controversies,
he says, one by discussion, the other by a resort to force. The first
is proper to man, the second is proper to brutes, and ought never to
be adopted except where the first is unavailable.[110] Seneca regards
war as a "glorious crime," comparable to murder:--"What is forbidden
in private life is commanded by public ordinance. Actions which,
committed by stealth, would meet with capital punishment, we praise
because committed by soldiers. Men, by nature the mildest species of
the animal race, are not ashamed to find delight in mutual slaughter,
to wage wars, and to transmit them to be waged by their children, when
even dumb animals and wild beasts live at peace with one
another."[111] History attests that the Romans, in their intercourse
with other nations, did not act upon Cicero's and Seneca's lofty
theories of international morality; as Plutarch observes, the two
names "peace" and "war" are mostly used only as coins, to procure, not
what is just, but what is expedient.[112] Yet there seems to have been
a general {342} feeling in Rome that the waging of a war required some
justification. In declaring it, the Roman heralds called all the gods
to witness that the people against whom it was declared had been
unjust and neglectful of its obligations.[113]
[Footnote 101: Clavigero, _op. cit._ i. 370. Bancroft, _op. cit._
ii. 420, 421, 423.]
[Footnote 102: Cicero, _De officiis_, i. 11.]
[Footnote 103: _Cf._ Lanessan, _Morale des philosophes chinois_,
pp. 54, 107.]
[Footnote 104: _Táo Teh King_, xxxi. 2.]
[Footnote 105: _Ibid._ lxix. 2.]
[Footnote 106: _Ibid._ xxxi. 3.]
[Footnote 107: _Mahabharata_, Bhisma Parva, iii. 81 (pt. xii. _sq._
p. 6).]
[Footnote 108: Philo, _Quod liber sit quisquis virtuti studet_, p. 877.]
[Footnote 109: Lecky, _History of European Morals_, ii. 258.]
[Footnote 110: Cicero, _De officiis_, i. 11.]
[Footnote 111: Seneca, _Epistulæ_, 95.]
[Footnote 112: Plutarch, _Vita Pyrrhi_, xii. 3, p. 389.]
[Footnote 113: Livy, i. 32.]
Even in war the killing of an enemy is, under certain circumstances,
prohibited either by custom or by enlightened moral opinion. Among the
ancient Nahuas, who never accepted a ransom for a prisoner of war, the
person of an ambassador was at all events held sacred.[114] In the
'Book of Rewards and Punishments,' which embodies popular Taouism, it
is said, "Do not massacre the enemies who yield themselves, nor kill
those who offer their submission."[115] The Hebrews, whilst being
commanded to "save alive nothing that breatheth" of the cities which
the Lord had given them for an inheritance, were to deal differently
with cities which were very far off from them: to kill only the men,
and to take to themselves the women and the little ones.[116] The Laws
of Manu lay down very humane rules for a king who fights with his foes
in battle:--"Let him not strike with weapons concealed in wood, nor
with such as are barbed, poisoned, or the points of which are blazing
with fire. Let him not strike one who in flight has climbed on an
eminence, nor a eunuch, nor one who joins the palms of his hands in
supplication, nor one who flees with flying hair, nor one who sits
down, nor one who says 'I am thine'; nor one who sleeps, nor one who
has lost his coat of mail, nor one who is naked, nor one who is
disarmed, nor one who looks on without taking part in the fight, nor
one who is fighting with another foe; nor one whose weapons are
broken, nor one afflicted with sorrow, nor one who has been grievously
wounded, nor one who is in fear, nor one who has turned to flight; but
in all these cases let him remember the duty of honourable
warriors."[117] The Mahabharata contains expressions of {343} similar
chivalrous sentiments in regard to enemies. A car-warrior should fight
only with a car-warrior, a horse-man with a horse-man, a foot-soldier
with a foot-soldier. "Always being led by consideration of fitness,
willingness, bravery, and strength, one should strike another after
having challenged him. None should strike another who is confiding or
who is panic-striken. One fighting with another, one seeking refuge,
one retreating, one whose weapon is broken, and one who is not clad in
armour should never be struck. Charioteers, animals, men engaged in
carrying weapons, those who play on drums and those who blow conchs
should never be smitten."[118] Among the Greeks, in the Homeric age,
it was evidently regarded as a matter of course that, on the fall of a
city, all the men were slain, and the women and children carried off
as slaves;[119] but in historic times such a treatment of a vanquished
foe grew rarer, and seems, under ordinary circumstances, to have been
disapproved of.[120] The rulers of this land, says the messenger in
the 'Heraclidæ,' do not approve of slaying enemies who have been taken
alive in battle.[121] In Rome the customs of war underwent a similar
change. In ancient days the normal fate of a captive was death, in
later times he was generally reduced to slavery; but many thousands of
captives were condemned to the gladiatorial shows, and the vanquished
general was commonly slain in the Mamertine prison.[122] On the other
hand, nations or armies that voluntarily submitted to Rome were
habitually treated with great leniency. Cicero says:--"When we obtain
the victory we must preserve those enemies who behaved without cruelty
or inhumanity during the war; for example, our forefathers received,
even as members of their state, the Tuscans, the Aequi, the Volscians,
the Sabines, and the Hernici, but utterly destroyed Carthage and
Numantia. . . . And, while we {344} are bound to exercise
consideration toward those whom we have conquered by force, so those
should be received into our protection who throw themselves upon the
honour of our general, and lay down their arms, even though the
battering rams should have struck their walls."[123]
[Footnote 114: Bancroft, _op. cit._ ii. 426, 412.]
[Footnote 115: Douglas, _Confucianism and Taouism_, p. 261.]
[Footnote 116: _Deuteronomy_, xx. 13 _sqq._]
[Footnote 117: _Laws of Manu_, vii. 90 _sq._]
[Footnote 118: _Mahabharata_, Bhisma Parva, i. 27 _sqq._ (pt. xii.
_sq._ p. 2).]
[Footnote 119: _Iliad_, ix. 593 _sq._]
[Footnote 120: Schmidt, _Ethik der alten Griechen_, ii. 281 _sqq._]
[Footnote 121: Euripides, _Heraclidæ_, 966.]
[Footnote 122: Laurent, _op. cit._ iii. 20 _sq._ Lecky, _History of
European Morals_, ii. 257.]
[Footnote 123: Cicero, _De officiis_, i. 11.]