THE KILLING OF WOMEN AND OF SLAVES--THE CRIMINALITY OF HOMICIDE
INFLUENCED BY DISTINCTIONS OF CLASS.
AMONG many of the lower races a husband is said to possess the power
of life and death over his wife; but what this actually means is not
always obvious. It is quite probable that, in some cases, the husband
may put his wife to death whenever he pleases, without having to fear
any disagreeable consequences. In other instances he, by doing so, at
all events exposes himself to the vengeance of her family. Among the
Bangerang tribe of Victoria, for instance, "he might ill-treat her,
give her away, do as he liked with her, or kill her, and no one in the
tribe interfered; though, had he proceeded to the last extremity, her
death would have been avenged by her brothers or kindred."[1] So,
also, among the aborigines of North-West-Central Queensland, "a wife
has always her 'brothers' to look after her interests," and if a man
kills his wife he has to deliver up one of his own sisters for his
late wife's friends to put to death.[2] We shall see in a subsequent
chapter that many statements in which absolute marital power is
ascribed to savage husbands are not to be interpreted too literally. I
venture to believe that the husband's so-called power of life and
death is generally {419} restricted by custom to cases where the wife
has committed some offence, and, especially, where she has been guilty
of unfaithfulness.
[Footnote 1: Curr, _Recollections of Squatting in Victoria_, p. 248.]
[Footnote 2: Roth, _Ethnological Studies among the North-West-Central
Queensland Aborigines_, p. 141. _Cf._ Fison and Howitt, _Kamilaroi and
Kurnai_, p. 281 (Geawe-gal tribe).]
The right of punishing the wife capitally, however, is by no means
universally granted to the husband in uncivilised communities. Among
the Gaika tribe of the Kafirs, "if he puts her to death, he is
punished as a murderer."[3] Among the Bakwiri he has to suffer death
himself if he kills his wife; if she is unfaithful to him he is only
permitted to beat her.[4] From the information we possess of the lower
races it does not seem to be the general rule that husbands punish
their adulterous wives with death; but whether they have the right of
doing so is a question seldom touched upon by our authorities.[5] We
shall see that savage custom often gives to the husband only very
limited rights over his wife, and requires that he should treat her
with respect.
[Footnote 3: Brownlee, in Maclean, _Compendium of Kafir Laws and
Customs_, p. 117.]
[Footnote 4: Schwarz, quoted by Post, _Afrikanische Jurisprudenz_,
i. 401.]
[Footnote 5: See Steinmetz, _Ethnologische Studien zur ersten
Entwicklung der Strafe_, ii. 303.]
Among various peoples of a higher type the husband has, under certain
circumstances, had the right of punishing his wife capitally; but this
seems to be nearly all that is involved in that "power of life and
death" which he is said to have possessed over her.[6] However, whilst
custom or law forbade him to kill his wife without sufficient cause,
such a deed was hardly looked upon with the same horror, or treated
with the same severity, as the murder of a husband by his wife, owing
to the former's superior position in the family. Among the Langobardi,
according to the laws of King Rothar, a husband who killed his wife
had to pay the same compensation as anybody else would have had to pay
for taking her life, but if a wife killed her husband, she was put to
death, and her property forfeited {420} to the family of the dead.[7]
In Russia, in the seventeenth century, whilst a husband who murdered
his wife was, according to law, obnoxious to corporal punishment, a
wife who murdered her husband was buried alive, with the head above
the ground, and left to perish by hunger.[8] According to English law,
a woman who killed her husband was guilty of "petit treason," that is,
murder in its most odious degree.[9]
[Footnote 6: Rein, _Japan_, p. 424. Hommel, _Die semitischen Völker
und Sprachen_, i. 417 (Babylonians). Leist, _Altarisches Jus Civile_,
i. 196, 275 ("Aryan" peoples). Wilda, _Strafrecht der Germanen_, p.
705; Nordström, _Bidrag till den svenska samhälls-författningens
historia_, ii. 61 _sq._; Weinhold, _Altnordisches Leben_, p. 250;
Keyser _Efterladte Skrifter_, ii. pt. ii. 28 _sq._ (Teutons).]
[Footnote 7: _Edictus Rothari_, 200 _sqq._]
[Footnote 8: Macieiowski, _Slavische Rechtsgeschichte_, iv. 292. For a
Corsican law concerning matricide, see Cibrario, _Economia politica
del medio eve_, i. 344; and for the punishment inflicted for the same
crime on a woman in Nuremberg, in 1487, see Du Boys, _Histoire du
droit criminel des peuples modernes_, ii. 607.]
[Footnote 9: Blackstone, _Commentaries on the Laws of England_, iv. 203.]
Among many peoples the life of a woman is held cheaper than that of a
man, independently of the relationship between the slayer and his
victim. In Burma, if a woman was accidentally killed, less
compensation had to be paid than for a man. A Burman explained this in
the following words:--"A woman is worth less than a man _in that way_.
A maidservant can be hired for less than a manservant, a daughter can
claim less than a son. They cannot do so much work; they are not so
strong. If they had been worth more, the law would have been the other
way; of course they are worth less."[10] Among Muhammedans the price
of blood for a woman is half the sum which is the price of blood for a
free man.[11] In ancient India the murder of a woman, unless she was
with child, was in the eye of the law on a par with the murder of a
Sûdra.[12] According to Cambrian law, the _galanas_, or blood-price,
of a woman was half the _galanas_ of her brother.[13] Among the
Teutons the _wergeld_ of a woman varied: sometimes it was the same as
that for a man, sometimes only half as much, but sometimes twice as
much, or, if she was pregnant, {421} even more.[14] These variations
depended upon the different points of view from which the offence was
looked upon. By herself she was worth less than a man, as a mother she
was worth more;[15] and, quite apart from her value, the natural
helplessness of her sex tended to aggravate the crime.[16] Among
modern savages and barbarians, also, the estimate of a woman's life is
in some instances lower than that of a man's,[17] in some equal to
it,[18] and in some higher.[19] Among the Gallas the killing of a free
man can be atoned for only by one thousand cattle, whereas fifty are
deemed sufficient for the killing of a woman.[20] On the other hand,
among the Iroquois two hundred yards of wampum were paid for the
murder of a woman, and only one hundred for that of a man.[21] Among
the Rejangs of Sumatra, whilst the compensation for murder is eighty
dollars if the victim was an ordinary man or boy, it is one hundred
and fifty dollars if the person murdered was a woman or a girl.[22]
Among the Ag[=a]r, a Dinka tribe, the murder of a man must be atoned
for by a fine of thirty cows, that of a woman by forty cows.[23] Where
wives are purchased, the killing of a woman involves the destruction
of valuable property, and is dealt with accordingly.
[Footnote 10: Fielding, _The Soul of a People_, p. 171.]
[Footnote 11: Lane, _Arabian Society in the Middle Ages_, p. 18.]
[Footnote 12: _Baudhâyana_, i. 10. 19. 3. Leist, _Alt-arisches Jus
Gentium_, p. 305 _sqq._]
[Footnote 13: _Venedotian Code_, ii. 1. 16. According to the 'Laws of
the Brets and Scots,' the estimate of a married woman is less by a
third part than that of her husband, whereas the estimate of an
unmarried woman is equal to that of her brother (Innes, _Scotland in
the Middle Ages_, p. 181).]
[Footnote 14: Grimm, _Deutsche Rechtsalterthümer_, p. 404 _sqq._]
[Footnote 15: This point of view is very conspicuous in the Salic Law
(_Lex Salica_ [Herold's text], 28).]
[Footnote 16: Wilda, _op. cit._ p. 571. Keyser, _op. cit._ ii. pt. ii.
29. Brunner, _Deutsche Rechtsgeschichte_, ii. 614 _sq._ Pardessus,
_Loi Salique_, p. 662.]
[Footnote 17: Post, _Anfänge des Staats- und Rechtsleben_, p. 192.
_Idem_, _Studien zur Entwicklungsgeschichte des Familienrechts_, p.
119 _sq._ Gibbs, 'Tribes of Western Washington and North-western
Oregon,' in _Contributions to North American Ethnology_, i. 190.
Georgi, _Russia_, ii. 261; Vámbéry, _Türkenvolk_, p. 305 (Kirghiz).
Decle, _Three Years in Savage Africa_, p. 487 (Wakamba).]
[Footnote 18: Schoolcraft, _Indian Tribes of the United States_, i.
277 (Creeks). Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._
iii. 370. Woodthorpe, in _Jour. Anthr. Inst._ xxvi. 21 (Shans).]
[Footnote 19: Post, _Studien zur Entwicklungsgeschichte des
Familienrechts_, p. 119 _sq._]
[Footnote 20: Paulitschke, _Ethnographie Nordost-Afrikas_, p. 263.]
[Footnote 21: Loskiel, _History of the Mission of the United Brethren
among the Indians in North America_, i. 16.]
[Footnote 22: Marsden, _History of Sumatra_, p. 222.]
[Footnote 23: _Emin Pasha in Central Africa_, p. 338.]
* * * * *
As a husband often has "the power of life and death" over his wife, so
we may expect to find, even more often, {422} that a master has the
same power over his slave. The latter, as a rule, can hardly count on
the support of his family, and when, as is frequently the case, he is
a prisoner of war, the right of killing an enemy easily passes into
the right of killing the slave. In the literature dealing with the
lower races we repeatedly meet with the statement that the owner may
kill his slave at pleasure, or that he is not accountable for killing
him.[24] Yet this seems to mean rather that, if he does so, no
complaint can be brought against him, or no vengeance taken on him,
than that he has an unconditional moral right to put to death a slave
whom he no longer cares to keep; we shall see that savage custom very
commonly requires that slaves should be treated with kindness by their
masters. In many cases the master is expressly denied the right of
killing his slave at his own discretion.[25] Among the Bataks, the
owner, though allowed to punish his slave, must take care that the
latter does not succumb to the punishment.[26] Among the Rejangs, if a
man kills his slave, he pays half his price as compensation to the
feudal chief of the country.[27] In Madagascar "masters have full
power over their slaves, excepting as to life";[28] and the same is
said of the Tshi-speaking peoples of the Gold Coast.[29] The
Mandingoes allow the owner to do what he likes to a prisoner of war
and to a person who has lost his freedom through insolvency, but he is
forbidden to kill a house-slave.[30] Among the Barea and Kunáma, by
putting {423} to death a slave who is a native of the country, the
master even exposes himself to the blood-revenge of the family of the
slain.[31]
[Footnote 24: Monrad, _Bidrag til en Skildring af Guinea-Kysten_, p.
42 (Negroes of Accra). Bowdich, _Mission to Ashantee_, p. 258 (people
of Ashanti). Ward, _Five Years with the Congo Cannibals_, p. 105
(Bolobo). Macdonald, _Africana_, i. 168 (Eastern Central Africans).
Burton, _Zanzibar_, ii. 95 (Wanika). Cooper, _Mishmee Hills_, p. 238.
_Glimpses of the Eastern Archipelago_, p. 106 (Highlanders of
Palembang). Hale, _U.S. Exploring Expedition. Vol. VI. Ethnography and
Philology_, p. 33 (Maoris). Gibbs, _loc. cit._ p. 189 (Thlinkets).
Steinmetz, _Studien_, ii. 308 _sqq._]
[Footnote 25: Steinmetz, _Rechtsverhältnisse von eigeborenen Völkern
in Afrika und Ozeanien_, p. 43 (Banaka and Bapuku). Mademba, _ibid._
p. 83 (natives of the Sansanding States). Lang, _ibid._ p. 241
(Washambala). Desoignies, _ibid._ p. 278 (Msalala).]
[Footnote 26: _Glimpses of the Eastern Archipelago_, p. 114.]
[Footnote 27: Marsden, _op. cit._ p. 222.]
[Footnote 28: Ellis, _History of Madagascar_, i. 196.]
[Footnote 29: Ellis, _Tshi-speaking Peoples of the Gold Coast_, p. 291.]
[Footnote 30: Post, _Afrikanische Jurisprudenz_, i. 95.]
[Footnote 31: Munzinger, _Ostafrikanische Studien_, p. 484.]
The murder of another person's slave is of course largely regarded as
an offence against the property of the owner, but, in many cases at
least, it is not exclusively looked upon in this light. Where the
master himself is not allowed to kill his slave, the slave possesses
the right to live in the full sense of the term. Sometimes there is in
this respect little difference between him and a freeman. Among the
Beni Amer, whilst the murder of a slave who has been bought is merely
compensated for by the payment of the purchase sum, the murder of a
slave who belongs to his master by birth is avenged by his relatives,
or, if he has none, by the master himself; should the murderer be too
high a person, the matter drops, but there is no question of payment
in any case.[32] Where the system of blood-money prevails, the price
paid for the life of a slave is less than that paid for the life of a
freeman. Among the Kirghiz the former is only half of the latter.[33]
In Axim, on the Gold Coast, according to Bosman, the murderer of a
slave was usually fined thirty-six crowns, whilst five hundred crowns
were demanded for the murder of a free-born negro.[34]
[Footnote 32: _Ibid._ p. 309.]
[Footnote 33: Georgi, _op. cit._ ii. 261.]
[Footnote 34: Bosman, _New Description of the Coast of Guinea_,
p. 141 _sq._]
The rule that the life of a slave is held in less estimation than the
life of a freeman applies to the nations of archaic culture; yet not
even the master is among them in all circumstances allowed to put his
slave to death. In ancient Mexico the murder of a slave, though
committed by the master, was a capital offence.[35] In Corea, a slave
may not be killed by his owner before the latter has obtained the
permission of the board of punishments, or of the high provincial
authorities.[36] According to the {424} Chinese Penal Code, a master
who, instead of complaining to a magistrate privately, beats to death
a slave who has been guilty of theft, adultery, or any other similar
crime, shall be punished with one hundred blows. If he beats to death,
or intentionally kills, a slave who has committed no crime, he shall
be punished with sixty blows and one year's banishment, and the wife
or husband, as also the children, of the deceased slave shall be
entitled to their freedom.[37] Again, a freeman who kills another's
slave shall be strangled.[38]
[Footnote 35: Bancroft, _op. cit._ ii. 223.]
[Footnote 36: Rockhill, 'Notes on some of the Laws, Customs, and
Superstitions of Korea,' in _American Anthropologist_, iv. 180. _Cf._
Griffis, _Corea_, p. 239.]
[Footnote 37: _Ta Tsing Leu Lee_, sec. cccxiv. p. 340.]
[Footnote 38: _Ibid._ sec. cccxiii. p. 336.]
According to Hebrew law, a master who smites his slave so that he dies
under his hand, "shall be surely punished"; but if the slave continues
to live for a day or two after the assault, the master goes free on
the score that the slave is "his money."[39] Muhammed strongly
enjoined the duty of kindness to slaves; yet, according to Muhammedan
law, the master may even kill his own slave with impunity for any
offence, and incurs but a slight punishment--as imprisonment for a
period at the discretion of the judge--if he kills him wantonly.[40]
The price of blood for a slave is his or her value; but by the
[H.]anafee law a man is obnoxious to capital punishment for the murder
of another man's slave.[41]
[Footnote 39: _Exodus_, xxi. 20 _sq._]
[Footnote 40: Lane, _Manners and Customs of the Modern Egyptians_, p.
115. _Idem_, _Arabian Society in the Middle Ages_, p. 251.]
[Footnote 41: _Idem_, _Modern Egyptians_, p. 119. _Idem_, _Arabian
Society_, p. 18 _sq._]
Among the ancient Teutons the master was irresponsible in the eye of
the law as to all dealings between himself and his slave; legally the
slave was on a par with the horse and the ox, and to kill him was only
to inflict a certain loss upon the owner.[42] In ancient Wales the
position of a slave seems to have been very similar; there was no
_galanas_ for a bondman, "only payment of his worth to his master,
like the worth of a beast."[43] Among the Greeks, in the Homeric age,
the master evidently {425} could punish his slaves with death;[44] but
in later times, at least at Athens, he was obliged to hand over to the
magistrate any slave of his who deserved capital punishment.[45] What
happened to a master who killed his own slave we do not know exactly,
but at any rate he had to undergo a ceremony of purification.[46]
Plato says in his 'Laws,' that if a person kills the slave of another
in anger, he shall pay twice the amount of the loss to his owner.[47]
But he adds, "If any one kills a slave who has done no wrong, because
he is afraid that he may inform of some base and evil deeds of his
own, or for any similar reason, in such a case let him pay the penalty
of murder, as he would have done if he had slain a citizen."[48]
[Footnote 42: Grimm, _Deutsche Rechtsalterthümer_, p. 342 _sqq._
Brunner, _Deutsche Rechtsgeschichte_, i. 96. Kemble, _Saxons in
England_, i. 208 _sqq._ Stemann, _op. cit._ p. 281 _sqq._ Keyser, _op.
cit._ ii. pt. i. 289.]
[Footnote 43: _Dimetian Code_, iii. 3. 8.]
[Footnote 44: _Odyssey_, iv. 743; xix. 489 _sq._]
[Footnote 45: Schmidt, _Ethik der alten Griechen_, ii. 217.
Hermann-Blümner, _Lehrbuch der griechischen Privatalterthümer_, p. 88,
n. 3.]
[Footnote 46: Plato, _Leges_, ix. 865, 868. Schmidt, _op. cit._
ii. 217 _sq._]
[Footnote 47: Plato, _Leges_, ix. 868.]
[Footnote 48: _Ibid._ ix. 872.]
In Rome, in ancient times, the master had by law the absolute power of
life and death over his slaves; and he who killed another man's slave
was not criminally prosecuted, but had merely to compensate the owner
for the destruction of his property.[49] Even during the Empire a
slave was counted a thing, not a person; himself incapable of
suffering an _injuria_, he was viewed as a mechanical medium only,
through which an insult could be transmitted to his master.[50] Yet
this doctrine was not rigidly adhered to. After the publication of the
Lex Cornelia, the change was introduced that he who killed a slave
belonging to somebody else could be punished for murder;[51] and later
on even the master's power of life and death was restricted by law.
Claudius declared that sick slaves who had been exposed by their
owners in a languishing condition, and afterwards recovered, should be
perfectly free and never more return to their former servitude;
moreover, "if any one chose to kill at once, rather than expose, a
slave, he should be liable for murder."[52] {426} By a constitution of
Antoninus Pius he who put his slave to death without a sufficient
cause (_sine causa_) was to be punished equally with him who killed
the slave of another.[53] Hadrian even made an attempt to induce
slave-owners to hand over to the authorities slaves who had been
guilty of some capital crime, instead of themselves inflicting the
punishment on the guilty.[54]
[Footnote 49: Mommsen, _Römisches Strafrecht_, p. 616.]
[Footnote 50: _Institutiones_, iv. 4. 3.]
[Footnote 51: Gaius, _Institutionum juris civilis commentarii_, iii.
213. _Cf._ Mommsen, _Römisches Strafrecht_, p. 616.]
[Footnote 52: Suetonius, _Claudius_, 25.]
[Footnote 53: Gaius, _op. cit._ i. 53. _Institutiones_, i. 8. 2.]
[Footnote 54: Spartian, _Vita Hadriani_, 18. _Cf._ Mommsen, _Römisches
Strafrecht_, p. 617, n. 2.]
Faithful to her principle that human life is sacred, the Church made
efforts to secure the life of the slave against the violence of the
master; but neither the ecclesiastical nor the secular legislation
gave him the same protection as was bestowed upon the free member of
the Church and State. Various Councils punished the murder of a slave
with two years' excommunication only, if the slave had been killed
"sine conscientia judicis";[55] and the same punishment was adopted by
some Penitentials.[56] Edgar made the penance last three years,
whereas, if a freeman was killed, the penance was of seven years'
duration.[57] Facts do not justify Mr. Lecky's statement that, "in the
penal system of the Church, the distinction between wrongs done to a
freeman, and wrongs done to a slave, which lay at the very root of the
whole civil legislation, was repudiated."[58]
[Footnote 55: _Concilium Agathense_, A.D. 506, canon 62 (Labbe-Mansi,
_Sacrorum Conciliorum collectio_, viii. 335). _Concilium Epaonense_,
A.D. 517, canon 34 (_ibid._ viii. 563). _Concilium Wormatiense_, A.D.
868, canon 38 (_ibid._ xv. 876).]
[Footnote 56: _P[oe]nitentiale Cummeani_, vi. 29 (Wasserschleben,
_Bussordungen der abendländischen Kirche_, p. 480). _P[oe]nit.
Pseudo-Theodori_, xxi. 12 (_ibid._ p. 587).]
[Footnote 57: _Canons enacted under Edgar_, Modus imponendi
p[oe]nitentiam, 4, 11 (_Ancient Laws and Institutes of England_, p.
405 _sq._).]
[Footnote 58: Lecky, _History of European Morals_, ii. 66. Mr. Lecky
states (_ibid._ ii. 66 _sq._) that the Council of Illiberis excluded
for ever from the communion a master who killed his slave. I have only
been able to find the following enactment made by a Council held at
Illiberis in the beginning of the fourth century:--"Si qua domina
furore zeli accensa flagris verberaverit ancillam suam, ita ut in
tertium diem animam cum cruciatu effundat; eo quod incertum sit,
voluntate, an casu occiderit; si voluntate, post septem annos; si
casu, post quinquennii tempora, acta legitima p[oe]nitentia, ad
communionem placuit admitti" (_Concilium Eliberitanum_, ch. 5
[Labbe-Mansi, _op. cit._ ii. 6]).]
Beyond a law of Constantine, to the effect that a master {427} who put
his slave to death in a non-judicial way, was to be punished as a
murderer,[59] and a reiteration of some previous enactments, the
Christian emperors seem to have done little to guard the life of the
slave. Whilst it was provided that any master who applied to his slave
certain atrocious tortures with the object of killing him should be
deemed a manslayer, it was emphatically said that no charge whatever
should be brought against him if the slave died under moderate
punishment, or under any punishment not inflicted with the intention
of killing him.[60] Arcadius and Honorius even passed a law refusing
protection to a slave who should fly to a church for refuge from his
master;[61] but this law was, in the West, followed by regulations of
an opposite character.[62] The barbarian invasions certainly did not
improve the condition of slaves, and in Teutonic countries it was only
by slow degrees that the introduction and spread of a higher
civilisation exercised its humanising influence on the relation
between master and slave. The Visigothic Code prohibited a person from
killing any of his slaves who had committed no offence.[63] According
to the Capitularia, the master had to pay a penalty for causing the
death of a guiltless slave, provided that he died at once; but if he
survived the injury only a day or two, the master was not punishable
for his deed, because the slave was his _pecunia_.[64] In a later
period any intentional killing of an innocent slave was punished by
law, but the law probably remained a dead letter.[65] In the
thirteenth century Beaumanoir, the French jurisconsult, could
write:--"Plus cortoise est nostre coustume envers les sers que en
autre païs, car li segneur poent penre de lor sers, et à mort et à
vie, toutes les fois {428} qu'il lor plest, et tant qu'il lor
plet."[66] Nay, even in quite modern times, in Christian countries,
where negro slavery prevailed as a recognised institution, the life of
the slave was only inadequately protected by their laws.
[Footnote 59: _Codex Theodosianus_, ix. 12. 1.]
[Footnote 60: _Ibid._ ix. 12. Lecky, _History of European Morals_,
ii. 62 _sq._]
[Footnote 61: _Codex Theodosianus_, ix. 45. 3.]
[Footnote 62: Babington, _The Influence of Christianity in promoting
the Abolition of Slavery in Europe_, p. 37. Biot, _De l'abolition de
l'esclavage ancien en Occident_, p. 239.]
[Footnote 63: _Lex Wisigothorum_, vi. 5. 12.]
[Footnote 64: _Capitularia_, vi. 11 (Georgisch, _Corpus Juris
Germanici antiqui_, col. 1513). This law is borrowed from _Exodus_,
xxi. 20 _sq._]
[Footnote 65: Grimm, _Deutsche Rechtsalterthümer_, p. 344 _sq._ _Cf._
Potgiesser, **_Commentarii juris Germanici de statu servorum veteri
perinde atqve novo_, ii. 1. 10, 13, 24; iii. 6 (pp. 308, 309, 311,
312, 321, 633 _sqq._).]
[Footnote 66: Beaumanoir, _Les coutumes du Beauvoisis_, xlv. 36, vol.
ii. p. 237.]
In most of the British colonies, it was only by force of comparatively
recent acts, made for the most part subsequent to the year 1797, that
the same punishment was prescribed for the murder of a slave as for
the murder of a free person. Prior to this period the former crime was
subject only to a small pecuniary penalty, in Barbados not exceeding
£15.[67] In the French colonies, according to the Code Noir, a master
who killed his slave should be punished "selon l'atrocité des
circonstances."[68] In all the North American Slave-States there was a
time when the murder of a slave, whether by his master or a third
person, was atoned for by a fine. In South Carolina this was the case
as late as 1821, and only since then the wilful, malicious, and
premeditated killing of a slave, by whomsoever perpetrated, was a
capital offence in all the slave-holding States.[69] But this does not
mean that no distinction was made between the killing of a slave and
the killing of a freeman. In South Carolina, according to an enactment
of 1821, he who killed a slave on a sudden heat of passion was
punished simply with a fine of five hundred dollars and imprisonment
not exceeding six months.[70] In the Statutes of Tennessee the law
referring to the wilful murder of a slave contained the provision that
it should not be extended to "any person killing any slave in the act
of resistance to his lawful owner or master, or any slave dying under
moderate correction";[71] and a very similar provision was made by the
laws of Georgia.[72] In other words, a correction causing the death of
the victim {429} was not necessarily immoderate in the eye of the law.
In a still higher degree the life of the slave was endangered by
another law, which prevailed universally both in the Slave-States and
in the British Colonies. Neither a slave, nor a free negro, nor any
descendant of a native of Africa whatever might be the shade of his
complexion, could be a witness against a white person, either in a
civil or criminal case.[73] This law placed the slave, who was seldom
within the view of more than one white man at a time, entirely at the
mercy of this individual, and its consequences were obvious. Speaking
of slavery in the United States in 1853, Mr. Goodell remarks:--"Upon
the most diligent inquiry and public challenge, for fifteen or twenty
years past, not one single case has yet been ascertained in which,
either during that time or previously, a master killing his slave, or
indeed any other white man, has suffered the penalty of death for the
murder of a slave." Nevertheless, murders of slaves by white men had
been notoriously frequent.[74]
[Footnote 67: Stephen, _Slavery of the British West India Colonies
delineated_, i. 36, 38.]
[Footnote 68: _Code Noir_, Édit donné au mois de Mars 1724, art. 39,
p. 304.]
[Footnote 69: Brevard, _Digest of the Public Statute Law of South
Carolina_, ii. 240 _sq._ Stroud, _Laws relating to Slavery in the
United States of America_, p. 55 _sq._]
[Footnote 70: Stroud, _op. cit._ p. 64.]
[Footnote 71: Caruthers and Nicholson, _Compilation of the Statutes of
Tennessee_, p. 677.]
[Footnote 72: Prince, _Digest of the Laws of the State of Georgia_,
p. 787.]
[Footnote 73: Brevard, _op. cit._ ii. 242. Stroud, _op. cit._ p. 106
_sq._ Stephen, _Slavery of the British West India Colonies_, i. 166,
174. In the French Colonies, also, slaves could not be legal
witnesses, but their testimony might be heard by the judge, merely to
serve as a suggestion, or unauthenticated information, which might
throw light on the evidence of other witnesses (_Code Noir_, Édit du
mois de Mars 1685, art. 30, p. 44).]
[Footnote 74: Goodell, _American Slave Code in Theory and Practice_,
p. 209 _sq._]
That the life of a slave is held in so little regard is due to that
want of sympathy with his fate which accounts also for his unfree
condition, and to the proprietary rights over him which, in
consequence, have been granted to his master. For similar reasons the
killing of a freeman by a slave, especially if the victim be his
owner, is commonly punished more severely than if the same act were
done by a free person. The less the sympathy felt for an individual,
the more intense is the resentment which he excites by offensive
behaviour. According to the Chinese Penal Code, a slave who designedly
kills, or strikes so as to kill, his master, shall suffer death "by a
slow and painful execution."[75] Plato says that, if a slave
voluntarily murders a freeman, {430} the public executioner shall lead
him in the direction of the sepulchre of the dead man, to a place
whence he can see the tomb, and after inflicting upon him as many
stripes as the complainant shall order, put the murderer, if he
survives the scourging, to death.[76] Though the slave has committed
the act in a fit of passion, the relatives of the deceased shall
nevertheless be under an obligation to kill him, and this may be done
in any manner they please;[77] nay, even in self-defence a slave is
not allowed to kill a freeman, any more than a son is allowed to kill
his father.[78] At Rome, also, a slave was more heavily punished for
the commission of homicide than a freeman.[79] Says the ancient
jurist, "Maiores nostri in omni supplicio severius servos quam liberos
famosos quam integræ famæ homines punierunt."[80]
[Footnote 75: _Ta Tsing Leu Lee_, sec. cccxiv. p. 338.]
[Footnote 76: Plato, _Leges_, ix. 872.]
[Footnote 77: _Ibid._ ix. 868.]
[Footnote 78: _Ibid._ ix. 869.]
[Footnote 79: Mommsen, _Römisches Strafrecht_, p. 631 _sq._]
[Footnote 80: _Digesta_, xlviii. 19. 28. 16.]
* * * * *
In the estimate of life a distinction is made not only between freemen
and slaves, but between different classes of freemen. Among certain
peoples a person who kills a chief is punished with death, though
murder is not generally a capital offence.[81] Where the system of
compensation prevails, the blood-price very frequently varies
according to the station or rank of the victim.[82] Among the Rejangs
of Sumatra the compensation for the murder of a superior chief is five
hundred dollars, for that of an inferior chief two hundred and fifty
dollars; for that of a common person, man or boy, eighty dollars; for
that of a common person, woman or girl, one hundred and fifty dollars;
for the legitimate child or wife of a superior chief, two hundred and
fifty dollars.[83] The body of every Ossetian has {431} a settled
value in the eyes of the judges, which seems to be fixed by public
opinion; thus the father of a family bears a higher value than an
unmarried man, and a noble is rated at twice as much as an ordinary
freeman.[84] In Eastern Tibet the murderer of a man of the upper class
is fined 120 bricks of tea, the murderer of a middle-class man only
80, and so on down through the social scale, the life of a beggar
being valued at a nominal amount only; but if the victim was a lama,
the murderer has to pay a much higher price, possibly 300 bricks.[85]
According to the doctrine of modern Buddhism, "when the life of a man
is taken, the demerit increases in proportion to the merit of the
person slain."[86] The laws of the Brets and Scots estimated the life
of the king of Scots at a thousand cows; that of an earl's son, or a
thane, at a hundred cows; that of a villein, at sixteen cows.[87] A
similar system prevailed among the Celtic peoples generally,[88] as
also among the Teutons. A man's _wergeld_, or life-price, varied
according to his rank, birth, or office; and so minutely was it
graduated, that a great part of many Teutonic laws was taken up by
provisions fixing its amount in different cases.[89] In English laws
of the Norman age the _wer_ of a _villanus_ is still only reckoned at
_£_4, whilst that of the _homo plene nobilis_ is _£_25.[90]
[Footnote 81: Woodthorpe, in _Jour. Anthr. Inst._ xxvi. 21 (Shans).
Shooter, _Kafirs of Natal_, p. 103.]
[Footnote 82: Maclean, _Compendium of Kafir Laws and Customs_, p. 144.
Casalis, _Basutos_, p. 225. Ellis, _Tshi-speaking Peoples of the Gold
Coast_, p. 301. Munzinger, _Ostafrikanische Studien_, pp. 242 _sq._
(Marea), 314 (Beni Amer). Forbes, _A Naturalist's Wanderings in the
Eastern Archipelago_, p. 145 (Lampongers of Sumatra). Modigliani,
_Viaggio a Nías_, p. 494. Richardson, _Arctic Searching Expedition_,
i. 386 (Kutchin). Gibbs, _loc. cit._ p. 190 (Indians of Western
Washington and North-western Oregon). Paget, _Hungary and
Transylvania_, ii. 411 n. (Hungarians).]
[Footnote 83: Crawfurd, _History of the Indian Archipelago_, iii. 112.]
[Footnote 84: von Haxthausen, _Transcaucasia_, p. 409. Kovalewsky,
_Coutume contemporaine_, p. 355 _sqq._]
[Footnote 85: Rockhill, _Land of the Lamas_, p. 221.]
[Footnote 86: Hardy, _Manual of Budhism_, p. 478.]
[Footnote 87: Innes, _Scotland in the Middle Ages_, p. 180 _sq._]
[Footnote 88: _Ancient Laws of Ireland_, iii. 103, &c. Skene, _Celtic
Scotland_, iii. 152. de Valroger, _Les Celtes_, p. 471.]
[Footnote 89: Grimm, _Deutsche Rechtsalterthümer_, pp. 272-275, 289.
Brunner, _Deutsche Rechtsgeschichte_, i. 104, 105, 107, 108, 224, 247
_sqq._ Kemble, _Saxons in England_, i. 276 _sqq._]
[Footnote 90: _Leges Henrici I._ lxx. 1; lxxvi. 4. _Cf._ _Laws of
William the Conqueror_, i. 8.]
The magnitude of the crime, however, may depend not only on the rank
of the victim, but on the rank of the manslayer as well.[91] Among the
Philippine Islanders, "murder committed by a slave was punished with
death--committed by a person of rank, was indemnified by {432}
payments to the injured family."[92] In Fijian estimation, says Mr.
Williams, offences "are light or grave according to the rank of the
offender. Murder by a chief is less heinous than a petty
**larceny committed by a man of low rank."[93] Among the
E[(w]e-speaking peoples of the Slave Coast, "in cases of murder and
manslaughter, if the homicide be of rank superior to the person
killed, he pays the compensation demanded by the family of the latter,
or, in default of payment, forfeits his own life. If the homicide be
of equal rank with the person killed, the family of the deceased have
the right to demand his life, though compensation is usually accepted;
but when he is lower in rank his life is nearly always forfeited."[94]
Very similar rules prevail among the Tshi-speaking peoples of the Gold
Coast.[95] Among the Marea, if a nobleman kills another nobleman, the
family of the deceased generally take revenge on him; whereas, if a
commoner kills a nobleman, he is not only executed himself, but his
property is confiscated and his nearest relatives become subject to
the murdered man's family.[96] According to the religious law of
Brahmanism, the enormity of all crimes depends on the caste of him who
commits them, and on the caste of him against whom they are
committed.[97] If a Brâhmana slays a Brâhmana, the king shall brand
him on the forehead with a heated iron and banish him from his realm,
but if a man of a lower caste murders a Brâhmana, he shall be punished
with death and the confiscation of all his property.[98] If such a
person slays a man of equal or lower caste, other suitable punishments
shall be inflicted upon him.[99] A fine of a thousand cows is the
penalty for slaying a Kshatriya, that of a hundred for slaying a
Vaisya, and that of ten cows only for slaying a Sûdra.[100] In Rome,
also, at a certain period of its history, the {433} offence was
magnified in proportion to the insignificance of the offender. During
the Republic there was no law sanctioning such a distinction, with
reference to crimes committed by free citizens; but from the beginning
of the Empire, the citizens were divided into privileged classes and
commonalty--_uterque ordo_ and _plebs_--and, whilst a commoner who was
guilty of murder was punished with death, a murderer belonging to the
privileged classes was generally punished with _deportatio_ only.[101]
In the Middle Ages a similar privilege was granted by Italian and
Spanish laws to manslayers of noble birth.[102]
[Footnote 91: These two principles do not always go together. Among
the Rejangs the amount of the blood-money is not proportioned to the
rank and ability of the murderer, but regulated only by the quality of
the person murdered (Marsden, _op. cit._ p. 246).]
[Footnote 92: Bowring, _Visit to the Philippine Islands_, p. 123.]
[Footnote 93: Williams and Calvert, _Fiji_, p. 22.]
[Footnote 94: Ellis, _E[(w]e-speaking Peoples_, p. 223.]
[Footnote 95: _Idem_, _Tshi-speaking Peoples_, p. 301.]
[Footnote 96: Munzinger, _Ostafrikanische Studien_, p. 242, _sq._
_Cf._ _ibid._ p. 314 (Beni Amer).]
[Footnote 97: Hopkins, _Religions of India_, p. 263.]
[Footnote 98: _Baudháyana_, i. 10. 18. 18 _sq._]
[Footnote 99: _Ibid._ i. 10. 18. 20.]
[Footnote 100: _Ibid._ i. 10. 19. 1 _sq._]
[Footnote 101: Mommsen, _Römisches Strafrecht_, pp. 650, 1032 _sqq._]
[Footnote 102: Du Boys, _Histoire du droit criminel des peuples
modernes_, ii. 402. _Idem_, _Histoire du droit criminel de l'Espagne_,
pp. 357, 359. _Cf._ _ibid._ p. 635 _sq._]
In a society which is divided into different classes, persons
belonging to a higher class are naturally apt to sympathise more with
their equals than with their inferiors. An injury inflicted on one of
the former tends to arouse in them a higher degree of sympathetic
resentment than a similar injury inflicted on one of the latter. So,
also, their resentment towards the criminal will, _ceteris paribus_,
be more intense if he is a person of low rank than if he is one of
themselves. Where the superior class, as was originally the case
everywhere, are the leaders of such a society, their feelings will
find expression in its customs and laws, and thus moral distinctions
will arise which are readily recognised by the common people also,
owing to the admiration with which they look up to those above them.
But in a progressive society this state of things will not last. The
different classes gradually draw nearer to each other. The once
all-powerful class loses much of its exclusiveness, as well as of its
importance and influence. Sympathy expands. In consequence,
distinctions which were formerly sanctioned by custom and law come to
be regarded as unjust prerogatives, worthy only of abolition. And it
is at last admitted that each member of the society is born with an
equal claim to the most sacred of all human rights, the right to
live.