HOMICIDE IN GENERAL (_concluded_)
IN the last two chapters we have only been concerned with the
statement of facts; we shall now make an attempt to explain those
facts. What is the source of the moral commandment, "Thou shalt not
kill"? And what is the cause of its original narrowness and of its
subsequent extension?
Mr. Spencer suggests that the taking of life was regarded as a wrong
done to the family of the dead man or to the society of which he was a
member, before it came to be conceived of as a wrong done to the
murdered man himself.[1] But considering the mutual sympathy which
prevails in small savage communities, it seems extremely probable that
sympathetic resentment felt on account of the injury suffered by the
victim has from the beginning been a potent cause of the condemnation
of homicide. Savages, no less than civilised mankind, practically
regard a man's life as his highest good. Whatever opinions may be held
about the existence after death, whatever blessings may be supposed to
await the disembodied soul, nobody likes to be hurried into that
existence by another's will. According to early beliefs, the soul of a
murdered man is furious with the person who slew him, and finds no
rest until his death has been avenged.[2] His friends and comrades
pity his fate and {373} feel resentment on his behalf; whereas, in a
state of culture where sympathy is restricted to a narrow group of
people, no such resentment will be felt if the victim is a member of
another group. On the contrary, when he is regarded as an actual or
potential enemy, or when the slaying of him is taken for a test of
courage, the manslayer will be applauded by his own people, and his
deed will be styled good or meritorious. In some cases superstition,
also, is an encouragement to extra-tribal homicide. The Kukis believe
that, in paradise, all the enemies whom a man has killed will be in
attendance on him as slaves.[3] A similar belief partly lies at the
bottom of the custom of head-hunting;[4] whilst, according to other
notions, the soul of the man whose head is procured is transformed
into a guardian spirit.[5] A Kayan chief said of the custom in
question, "It brings us blessings, plentiful harvests, and keeps off
sickness and pains; those who were once our enemies, hereby become our
guardians, our friends, our benefactors."[6] Now, progress in
civilisation is generally marked by an expansion of the altruistic
sentiment; and this largely explains why the prohibition of homicide
has come to embrace more and more comprehensive circles of men, and
finally, in the most advanced cases, the whole human race.
[Footnote 1: Spencer, _Principles of Ethics_, ii.]
[Footnote 2: See _infra_, on Blood-revenge.]
[Footnote 3: Dalton, _Descriptive Ethnology of Bengal_, p. 46.]
[Footnote 4: Ling Roth, _Natives of Sarawak_, ii. 141.]
[Footnote 5: Wilken, _Het animisme bij de volken van den Indischen
Archipel_, p. 124.]
[Footnote 6: Furness, _Home-Life of Borneo Head-Hunters_, p. 59.]
But whilst homicide is censured as a wrong done to the person slain,
it is at the same time viewed as an injury inflicted upon the
survivors. It deprived his friends of his company, his family and
community of a useful member. In Arabia, when a man was killed, his
tribesmen, instead of mentioning his name, used to say, "Our blood has
been spilt."[7] According to Lafitau, the loss of a single person
seemed to the North American Indians a subject or great regret,
because it weakened the family.[8] {374} Among the Basutos, again,
murder is condemned "as a violation of the sacred rights of a father,
who is deprived of the services of his son, or of a widow and orphans,
who are left without support."[9] Especially when a person is
considered more or less the property of another, the taking of his
life is largely looked upon as an offence against the owner. Mr.
Warner states of the Kafirs, "All homicide must . . . be atoned for;
the principle assumed being, that the persons of individuals are the
property of the Chief, and that having been deprived of the life of a
subject, he must be compensated for it."[10] We meet with a somewhat
similar notion in the history of English legislation. In his book on
the Commonwealth of England, Thomas Smith observes, "Attempting to
impoison a man, or laying a waite to kill a man, though hee wound him
dangerously, yet if death follow not, it is no fellony by the law of
England, for the Prince hath lost no man, and life ought to be giuen
we say for life only."[11] In the Middle Ages homicide was conceived
as a breach of the "King's peace"; and both before and afterwards it
has been stigmatised as a disturbance of public tranquillity and an
outrage on public safety. In the Anglo-Saxon _wer_ and _wite_ we find
a clear distinction between the private and public aspects of
homicide.[12]
[Footnote 7: Robertson Smith, _Marriage and Kinship in Early Arabia_,
p. 26.]
[Footnote 8: Lafitau, _M[oe]urs des sauvages ameriquains_, ii. 163.]
[Footnote 9: Casalis, _Basutos_, p. 224 _sq._]
[Footnote 10: Warner, in Maclean, _Compendium of Kafir Laws_,
p. 60 _sq._]
[Footnote 11: Thomas Smith, _Common-wealth of England_, p. 194 _sq._]
[Footnote 12: _Cf._ Pollock and Maitland, _History of English Law
before the Time of Edward I._ i. 48.]
A manslayer not only causes a loss to the group which he deprives of a
member, but he also may give trouble to his own people, who, in
consequence, disapprove of his act. Among the Yahgans of Tierra del
Fuego, says Mr. Bridges, "many things conspire to make the shedding of
blood a fearful thing. A murderer imperils all his friends and
connections more or less, and consequently estranges them from
himself. This state of things is the greatest safeguard to human life
we can conceive."[13] Among the Káfirs of the Hindu-Kush, "the mere
killing of an {375} individual is looked upon as a small affair,
provided that he does not belong to the tribe, or to another near
tribe with which it is at peace, for in the latter case it might
result in war."[14]
[Footnote 13: Bridges, in _South American Missionary Magazine_,
xiii. 153.]
[Footnote 14: Scott Robertson, _Káfirs of the Hindu-Kush_, p. 194.]
We have still to notice the common idea that a manslayer is unclean.
The ghost of the victim persecutes him, or actually cleaves to him
like a miasma; and he must undergo rites of purification to get rid of
the infection. Until this is done, he is among many peoples regarded
as a source of danger, and is consequently cut off from free
intercourse with his fellows.
Among the Ponka Indians Mr. Dorsey found the belief that a murderer
is surrounded by the ghosts, who keep up a constant whistling; that he
can never satisfy his hunger, though he eat much food; and that he
must not be allowed to roam at large lest high winds arise.[15] Of the
warriors among certain North American Indians Adair wrote that, "as
they reckon they are become impure by shedding human blood," they
hasten to observe a fast of three days.[16] Among the Natchez,
according to Charlevoix, "those who for the first time have made a
prisoner or taken off a scalp, must, for a month, abstain from seeing
their wives, and from eating flesh. They imagine, that if they should
fail in this, the souls of those whom they have killed or burnt, would
effect their death, or that the first wound they should receive would
be mortal; or at least, that they should never gain any advantage over
their enemies."[17] The Kafirs and Bechuanas practise various
ceremonies of purification after their fights.[18] The Basutos say,
"Human blood is heavy, it prevents him who has shed it from running
away."[19] They consider it necessary that, on return from battle,
"the warriors should rid themselves, as soon as possible, of the blood
they have shed, or the shades of their victims would pursue them
incessantly and disturb their slumbers"; hence they go in full armour
to the nearest stream, and, as a rule, at the moment they enter the
water a diviner, placed {376} higher up, throws some purifying
substances into the current.[20] Among the Bantu Kavirondo, "when a
man has killed an enemy in warfare he shaves his head on his return
home, and his friends rub 'medicine' (generally the dung of goats)
over his body to prevent the spirit of the deceased from worrying the
man by whom he has been slain."[21] Among the Ja-luo, a warrior who
has slain an enemy not only shaves his hair, but, after entering the
village, prepares a big feast to propitiate the man he has killed so
that his ghost may not give trouble.[22] Among the Wagogo of German
East Africa, the father of a young warrior who has shed blood gives to
his son a goat "to clean his sword."[23] After the slaughter of the
Midianites, those Israelites who had killed any one, or touched the
slain, had to remain outside the camp for seven days, purifying
themselves and everything in their possession either by water, or
fire, or both.[24] So, also, if a person had been slain in the land of
Israel, and the perpetrator of the deed could not be detected, the
elders of the city which was next unto the slain had to undergo a
ceremony of purification in order to rid the city of "the guilt of
innocent blood.[25] According to the Laws of Manu, a person who has
unintentionally killed a Brâhmana shall make a hut in the forest and
dwell in it during twelve years;[26] in order to remove the guilt he
shall throw himself thrice headlong into a blazing fire,[27] or walk
against the stream along the whole course of the river Sarasvatî,[28]
or shave off all his hair.[29] The ancient Greeks believed that one
who had suffered a violent end, when newly dead, was angry with the
author of his death.[30] The blood-guilty individual, as though
infected with a miasma, shunned all contact and conversation with
other people, and avoided entering their dwellings.[31] Even the
involuntary manslayer had to leave the country for some time;
according to Plato's 'Laws,' he "must go out of the way of his victim
for the entire period of a year, and not let himself be found in any
spot which was familiar to him throughout the country."[32] {377} Nor
must he return to his land until sacrifice had been offered and
ceremonies of purification performed.[33]
[Footnote 15: Dorsey, 'Siouan Cults,' in _Ann. Rep. Bur. Ethn._ xi. 420.]
[Footnote 16: Adair, _History of the American Indians_, p. 388.]
[Footnote 17: Charlevoix, _Voyage to North America_, ii. 203.]
[Footnote 18: Arbousset and Daumas, _Exploratory Tour to the Colony of
the Cape of Good Hope_, p. 394 _sqq._ Alberti, _De Kaffers aan de
Zuidkust van Afrika_, p. 104.]
[Footnote 19: Casalis, _op. cit._ p. 309.]
[Footnote 20: _Ibid._ p. 258.]
[Footnote 21: Johnston, _Uganda Protectorate_, ii. 743 _sq._]
[Footnote 22: _Ibid._ ii. 794.]
[Footnote 23: Cole, 'Notes on the Wagogo of German East Africa,' in
_Jour. Anthr. Inst._ xxxii. 321.]
[Footnote 24: _Numbers_, xxxi. 19 _sqq._]
[Footnote 25: _Deuteronomy_, xxi. 1 _sq._]
[Footnote 26: _Laws of Manu_, xi. 73.]
[Footnote 27: _Ibid._ xi. 74.]
[Footnote 28: _Ibid._ xi. 78.]
[Footnote 29: _Ibid._ xi. 79.]
[Footnote 30: Plato, _Leges_, ix. 865.]
[Footnote 31: Müller, _Dissertations on the Eumenides of Æschylus_, p.
103. Aeschylus says (Eumenides, 448 _sqq._) it is the custom that a
murderer should not speak anything until he has been sprinkled with
the spurted blood of a slain sucking-pig. _Cf._ Apollonius Rhodius,
_Argonautica_, iv. 700 _sqq._; Aristotle, _De republica Atheniensium_,
57.]
[Footnote 32: Plato, _Leges_, ix. 865.]
[Footnote 33: Demosthenes, _Contra Aristocratem_, 71 _sqq._, p. 643
_sq._ Müller, _Dissertations_, p. 106 _sq._ Frazer, _Golden Bough_, i.
341. On the uncleanness of manslayers see also Tylor, _Primitive
Culture_, ii. 433 _sq._; Frazer, _op. cit._ i. 331 _sqq._]
The state of uncleanness incurred by the shedding of human blood does
not intrinsically involve moral guilt. As appears from many of the
instances just referred to, it results not only from the murder of a
tribesman, but from so meritorious a deed as the slaying of a foe. In
Nukahiva, for instance, a man who has killed the highest person, or
one of the highest, among the enemy, is tabooed for ten days, during
which he is not allowed to hold intercourse with his wife nor to
meddle with fire; but, at the same time, he is treated with
distinction, and presents of pigs are brought to him.[34] On the other
hand, there can be no doubt that in various cases the polluting effect
attributed to manslaughter has exercised some influence upon the moral
judgment of the act. Whenever the commission of an act of homicide has
any tendency at all to call forth moral blame, the disapproval of the
deed will easily be enhanced by the spiritual danger attending on it,
as also by the inconvenient restrictions laid on the tabooed manslayer
and the ceremonies of purification to which he is subject. The
deprivations which he has to undergo come to be looked upon in the
light of a punishment, and the rights of cleansing as a means of
removing guilt. The taboo rules which, among the Omahas, a murderer
whose life was spared had to observe for a period varying from two to
four years are spoken of by Mr. Dorsey as his "punishment," and this
seems also partly to have been the native point of view. The murderer
sometimes wandered at night, crying, and lamenting his offence, until,
at the end of the designated period, the kindred of his victim heard
his crying, and said:--"It is enough. Begone, and walk among the
crowd. {378} Put on moccasins and wear a good robe."[35] Moreover, the
notion of a persecuting ghost may be replaced by the notion of an
avenging god. Confusions are common in the world of mystery; doings or
functions attributed to one being are afterwards transferred to
another--this is a rule of which many important examples will be given
in following chapters. The Jbâla of Northern Morocco do not nowadays
believe in ghosts, yet they regard a person who has shed human blood
to be in some degree unclean for the rest of his life. Poison oozes
out from underneath his nails; hence anybody who drinks the water in
which he has washed his hands will fall dangerously ill. The meat of
an animal which he has killed is difficult to digest, and so is any
food eaten in his company. If he comes to a place where people are
digging a well, the water will at once run away. He is said to be
_mejnûn_, haunted by _jnûn_ (_jinn_), a race of beings entirely
distinct from men, living or dead. The Greenlanders believed that an
abortion or a child born under concealment was transformed into an
evil spirit called _ángiaq_, for the purpose of avenging the
crime.[36] In Eastern Central Africa, "after killing a slave, the
master is afraid of _Chilope_. This means that he will become
emaciated, lose his eye-sight, and ultimately die a miserable death.
He therefore goes to his chief and gives him a certain fee (in cloth,
or slaves, or such legal tenders), and says, 'Get me a charm
(_luasi_), because I have slain a man.' When he has used this charm,
which may be either drunk or administered in a bath, the danger passes
away."[37] Among the Omahas the ghost of the murdered man was not lost
sight of; the murderer "was obliged to pitch his tent about a quarter
of a mile from the rest of the tribe when they were going on the hunt
lest the ghost of his victim should raise a high wind, which might
cause damage." But at the same time his deed was considered offensive
to {379} Wakanda; no one wished to eat with him, for they said, "If we
eat with whom Wakanda hates, for his crime, Wakanda will hate us."[38]
In the Chinese books there are numerous instances of persons haunted
by the souls of their victims on their death-bed, and in most of these
cases the ghosts state expressly that they are avenging themselves
with the special authorisation of Heaven.[39] The Greek belief in the
Erinys of a murdered man no doubt originated in the earlier notion of
a persecuting ghost, whose anger or curses in later times were
personified as an independent spirit.[40] And the transformation went
further still: the Erinyes were represented as the ministers of Zeus,
who by punishing the murderer carried out his divine will. Zeus was
considered the originator of the rites of purification; when visited
with madness by the Erinyes, Ixion appealed to Zeus Hikesios, and at
the altar of Zeus Meilichios Theseus underwent purification for the
shedding of kindred blood.[41] Originally, as it seems, only the
murder of a kinsman was an offence against Zeus and under the ban of
the Erinyes, but later on their sphere of action was expanded, and all
bloodshed, if the victim had any rights at all within the city, became
a sin which needed purification.[42] Uncleanness was thus transformed
into spiritual impurity. When the pollution with which a manslayer is
tainted is regarded as merely the work of a ghost or of some
spirit-substitute who, like the Moorish _jnûn_, has nothing to do with
the administration of justice, it may be devoid of all moral
significance in spite of the dread it inspires; but the case is
different when it comes to be conceived of as a divine punishment, or
as a sin-pollution in the eyes of the supreme god. Such a
transformation of ideas could hardly take place {380} unless the act,
considered polluting, were by itself apt to evoke moral disapproval.
But it is obvious that the gravity of the offence is increased by the
religious aspect it assumes.
[Footnote 34: von Langsdorf, _Voyages and Travels_, i. 133.]
[Footnote 35: Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._
iii. 369.]
[Footnote 36: Rink, _Tales and Traditions of the Eskimo_, pp. 45,
439 _sq._]
[Footnote 37: Macdonald, _Africana_, i. 168.]
[Footnote 38: Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._
iii. 369.]
[Footnote 39: de Groot, _Religious System of China_, (vol. iv. book)
ii. 441.]
[Footnote 40: See Müller, _Dissertations_, p. 155 _sqq._; Rohde,
_Psyche_, p. 247; _Idem_, 'Paralipomena,' in _Rheinisches Museum für
Philologie_, 1895, p. 6 _sqq._]
[Footnote 41: Farnell, _Cults of the Greek States_, i. 66 _sqq._
Rohde, _Psyche_, p. 249. _Idem_, in _Rheinisches Museum_, 1895, p. 18.
Stengel, _Die griechischen Kultusaltertümer_, p. 140.]
[Footnote 42: Farnell, _op. cit._ i. 68, 71. Rohde, _Psyche_, p. 247.]
In yet another way the defiling effect attributed to the taking of
human life has had an influence on religious and moral ideas. Such
defilement is shunned not only by men, but, in a still higher degree,
by gods. The shedding of human blood is commonly prohibited in sacred
places. "In almost every Indian nation," says Adair, "there are
several peaceable towns, which are called 'old-beloved,' 'ancient,
holy, or white towns'; they seem to have been formerly 'towns of
refuge,' for it is not in the memory of their oldest people, that ever
human blood was shed in them; although they often force persons from
thence, and put them to death elsewhere."[43] The Aricaras of the
Missouri, according to Bradbury, have in the centre of the largest
village a sacred lodge called the "medicine lodge," which, "in one
particular corresponds with the sanctuary of the Jews, as no blood is
on any account whatsoever to be spilled within it, not even that of an
enemy."[44] At Athens the prosecution for homicide began with
debarring the criminal from all sanctuaries and assemblies consecrated
by religious observances.[45] According to Greek ideas, purification
was an essential preliminary to an acceptable sacrifice.[46] Hector
said, "I shrink from offering a libation of gleaming wine to Zeus with
hands unwashed; nor can it be in any way wise that one should pray to
the son of Kronos, god of the storm-cloud, all defiled with blood
{381} and filth."[47] In many parts of Morocco, a man who has slain
another person is never afterwards allowed to kill the sacrificial
sheep at the "Great Feast."[48] When David had in his heart to build a
temple, God said to him, "Thou shalt not build a house for my name,
because thou hast been a man of war, and **hast shed blood."[49] A
decree of the penitential discipline of the Christian Church, which
was enforced even against emperors and generals, forbade anyone whose
hands had been imbrued in blood to approach the altar without a
preparatory period of penance.[50]
[Footnote 43: Adair, _History of the American Indians_, p. 159.]
[Footnote 44: Bradbury, _Travels in the Interior of America_, p. 165
_sq._ Our informer adds, "Nor is any one, having taken refuge there,
to be forced from it"; but with facts of this kind we are not
concerned at present. They belong to the right of sanctuary, in the
strict sense of the term, and, as will be seen, this right is based on
a different principle, which prevents even the polluted manslayer,
tainted with newly shed blood, from being dragged out of the sanctuary
to which he has fled in the capacity of a suppliant.]
[Footnote 45: Aristotle, _De republica Atheniensium_, 57. Müller,
_Dissertations_, p. 103.]
[Footnote 46: Donaldson, 'Expiatory and Substitutionary Sacrifices of
the Greeks,' in _Transactions Roy. Soc. Edinburgh_, xxvii. 433.
Farnell, _op. cit._ i. 72.]
[Footnote 47: _Iliad_, vi. 266 _sqq._ _Cf._ Vergil, _Æneis_,
ii. 717 _sqq._]
[Footnote 48: I found this custom prevalent both among Arab and Berber
tribes in different parts of the country; see my article, "The Popular
Ritual of the Great Feast in Morocco," in _Folk-Lore_, xxii. 144.]
[Footnote 49: _1 Chronicles_, xxviii. 2 _sq._]
[Footnote 50: Lecky, _History of European Morals_, ii. 39.]
Whilst, from fear of contaminating anything holy, casual restrictions
have thus been imposed on all kinds of manslayers, whether murderers
or those who have killed an enemy in righteous warfare, more stringent
rules have been laid down for persons permanently connected with the
religious cult. Adair states that the "holy men" of the North American
Indians, like the Jewish priests, were by their function absolutely
forbidden to shed human blood, "notwithstanding their propensity
thereto, even for small injuries."[51] Herodotus says of the Persian
Magi that they "kill animals of all kinds with their own hands,
excepting dogs and men."[52] The Druids of Gaul never went to war,[53]
probably in order to keep themselves free from blood-pollution;[54] it
is true, they sacrificed human victims to their gods, but those they
burnt.[55] To the same class of facts belong those decrees of the
Christian Church which forbade clergymen taking part in a battle.
Moreover, if a Christian priest passed a sentence of death {382} he
was punished with degradation and imprisonment for life;[56] nor was
he allowed to write or dictate anything with a view to bringing about
such a sentence.[57] He must not perform a surgical operation by help
of fire or iron.[58] And if he killed a robber in order to save his
life, he had to do penance till his death.[59] The hands which had to
distribute the blood of the Lamb of God were not to be polluted with
the blood of those for whose salvation it was shed.[60]
[Footnote 51: Adair, _op. cit._ p. 152.]
[Footnote 52: Herodotus, i. 40. The Shluh of Southern Morocco and some
other Berber tribes, in the central parts of the same country,
consider that not only homicide, but the killing of a dog for ever
after prevents a person from performing sacrifice at the "Great
Feast"; see _Folk-Lore_, xxii, 144.]
[Footnote 53: Cæsar, _De bello gallico_, vi. 14.]
[Footnote 54: d'Arbois de Jubainville, _Civilisation des Celtes_,
p. 254.]
[Footnote 55: Cæsar, _De bello gallico_, vi. 16.]
[Footnote 56: Gratian, _Decretum_, ii. 23. 8. 30.]
[Footnote 57: _Concilium Lateranense IV._, A.D. 1215, ch. 18
(Labbe-Mansi, _Sacrorum Conciliorum collectio_, xxii. 1007).]
[Footnote 58: _Concilium Lateranense IV._, A.D. 1215, ch. 18
(Labbe-Mansi, _op. cit._ xxii. 1007).]
[Footnote 59: Thomassin, _Dictionnaire de discipline ecclésiastique_,
ii. 1074.]
[Footnote 60: _Ibid._ ii. 1069.]
It cannot be doubted that this horror of blood-pollution had a share
in that regard for human life which from the beginning, and especially
in early times, was a characteristic of Christianity. But in other
respects also, Christian feelings and beliefs had an inherent tendency
to evoke such a sentiment. The cosmopolitan spirit of the Christian
religion could not allow, in theory at least, that the life of a man
was less sacred because he was a foreigner. The extraordinary
importance it attached to this earthly life as a preparation for a
life to come naturally increased the guilt of any one who, by cutting
it short, not only killed the body, but probably to all eternity
injured the soul.[61] In a still higher degree than most other crimes,
homicide was regarded as an offence against God, because man had been
made in His image.[62] Gratian says that even the slayer of a Jew or a
heathen has to undergo a severe penance, "quia imaginem Dei et spem
futuræ conversionis exterminat."[63]
[Footnote 61: _Concilium Lugdumense I._, A.D. 1245, Additio, de
Homicidio (Labbe-Mansi, _op. cit._ xxiii. 670).]
[Footnote 62: von Eicken, _Geschichte und System der Mittelalterlichen
Weltanschauung_, p. 568.]
[Footnote 63: Gratian, _Decretum_, i. 50. 40.]