BLOOD-REVENGE AND COMPENSATION--THE PUNISHMENT OF DEATH
ACCORDING to early custom, a person who takes the life of another may
himself be killed by the relatives of his victim, or some other member
of his family, clan, or tribe may be killed in his stead.[1] The
custom of blood-revenge is found among a host of existing savages and
barbarians, and has long survived among many peoples who have reached
a higher degree of culture.
[Footnote 1: The collective responsibility usually involved in the
blood-feud has been discussed _supra_, p. 30 _sqq._]
We meet with blood-revenge in the midst of Japanese civilisation, not
as a mere fact, but as a legally permitted custom. The avenger had
only to observe certain prescribed formalities and regulations: there
was a regular official to whom he must announce his resolve, and he
must fix the time within which he would carry it out. The way in which
the enemy was killed was of no importance, except that, even in
ancient times, the man who had recourse to assassination was
reprehensible.[2] Among the Hebrews blood-revenge continued to exist
during the periods of the Judges and Kings, and even later; under the
Old Kingdom, says Wellhausen, "the administration of justice was at
best but a scanty supplement to the practice of self-help."[3] It is a
rule among {478} all the Arabs that whoever sheds the blood of a man
owes blood on that account to the family of the slain person.[4] Says
the Koran:--"O ye who believe! Retaliation is prescribed for you for
the slain."[5] In ancient Eran blood-revenge survived the
establishment of tribunals.[6] There is evidence left of its
prevalence in early times among the Aryan population of India, though
no mention is made in the Sûtras of blood revenge as an existing
custom.[7] Among the Greeks it was only in the post-Homeric age that
it was given up as a fundamental principle, the avenger being
transformed into an accuser.[8] In Gaul and Ireland, though justice
was administered by Druids or Brehons, their judgments seem to have
been merely awards founded upon a submission to arbitration, the
injured person being at liberty to take the law into his own hands and
redress himself.[9] In the preface to the Senchus Mór we read that
retaliation prevailed in Erin before Patrick, and that Patrick brought
forgiveness with him.[10] Among the clans of Scotland, as is well
known, the blood-feud has existed up to quite modern times; in the
Catholic period even the Church recognised its power by leaving the
right hand of male children unchristened, that it might deal the more
unhallowed and deadly a blow to the enemy.[11] In England it was at
least theoretically possible down to the middle of the tenth century
for a manslayer to elect to bear the feud of the kindred of the slain,
instead of paying the _wer_;[12] and long after the Conquest we still
meet with a law against the system of {479} private revenge.[13] In
Frisland, Lower Saxony, and parts of Switzerland, the blood-feud was
practised as late as the sixteenth century.[14] In Italy it prevailed
extensively, even among the upper classes, in the sixteenth and
seventeenth centuries.[15] In Corsica,[16] Albania,[17] and
Montenegro,[18] it exists even to this day.
[Footnote 2: Rein, _Japan_, p. 326. Dautremer, 'The Vendetta or Legal
Revenge in Japan,' in _Trans. Asiatic Soc. Japan_, xiii. 84 _sq._]
[Footnote 3: Wellhausen, _Prolegomena to the History of Israel_, p. 467.]
[Footnote 4: Burckhardt, _Notes on the Bedouins and Wahábys_, p. 85.]
[Footnote 5: _Koran_, ii. 173. _Cf._ _ibid._ xvii. 35.]
[Footnote 6: Geiger, _Civilization of the Eastern Ir[=a]nians_,
ii. 31 _sqq._]
[Footnote 7: Leist, _Alt-arisches Jus Gentium_, p. 422.]
[Footnote 8: _Idem_, _Græco-italische Rechtsgeschichte_, § 50 _sq._,
especially pp. 375, 381. In Rome blood-revenge appears to have been
very early suppressed. There is an echo of it in certain legends, but
even in them it is represented as objectionable (Mommsen, _History of
Rome_, i. 190).]
[Footnote 9: Maine, _Early History of Institutions_, lect. ii.
d'Arbois de Jubainville, 'Des attributions judiciaires de l'autorité
publique chez les Celtes,' in _Revue Celtique_, vii. 5. _Ancient Laws
of Ireland_, iii. p. lxxxix.]
[Footnote 10: Skene, _Celtic Scotland_, iii. 152.]
[Footnote 11: Mackintosh, _History of Civilisation in Scotland_,
ii. 279.]
[Footnote 12: Pollock and Maitland, _History of English Law before the
Time of Edward I._ i. 48.]
[Footnote 13: Cherry, _Growth of Criminal Law in Ancient Communities_,
p. 85.]
[Footnote 14: Günther, _Idee der Wiedervergeltung_, i. 207 _sq._
Frauenstädt, _Blutrache und Todtschlagsühne im Deutschen Mittelalter_,
p. 21. _Cf._ Arnold, _Deutsche Urzeit_, p. 342.]
[Footnote 15: Simonde de Sismondi, _Histoire des républiques
italiennes du moyen âge_, xvi. 456.]
[Footnote 16: Gregorovius, _Wanderings in Corsica_, i. 176 _sqq._]
[Footnote 17: Gop[vc]evi['c], _Oberalbanien und seine Liga_, p. 322
_sqq._]
[Footnote 18: Kohl, _Reise nach Istrien_, i. 406 _sqq._ Popovi['c],
_Recht und Gericht in Montenegro_, p. 69.]
Blood-revenge is regarded not only as a right, but as a duty. We are
told that the holiest duty a West Australian native is called on to
perform is that of avenging the death of his nearest relation. "Until
he has fulfilled this task, he is constantly taunted by the old women;
his wives, if he be married, would soon quit him; if he is unmarried,
not a single young woman would speak to him; his mother would
constantly cry, and lament she should ever have given birth to so
degenerate a son; his father would treat him with contempt, and
reproaches would constantly be sounded in his ear."[19] Among the
tribes of Western Victoria "a man would consider it his bounden duty
to kill his most intimate friend for the purpose of avenging a
brother's death, and would do so without the slightest hesitation."[20]
In his description of the Eskimo about Behring Strait, Mr. Nelson
states that blood-revenge is considered a sacred duty among all the
Eskimo, a duty incumbent on the nearest male relative; if the son of
the murdered man is an infant, it rests with him to seek revenge as
soon as he attains puberty.[21] Among the Dacotahs "no one can escape
this law of retaliation; public opinion would brand with disgrace
whoever fled under such circumstances."[22] The Brazilian aborigines
{480} consider it a moral obligation, a matter of conscience, for a
son, a brother, or a nephew, to avenge the death of his relative.[23]
Speaking of the Guiana Indians, Sir E. F. Im Thurn observes that, "in
all primitive societies where there are no written laws and no supreme
authority to enforce justice, such vengeance has been held as a sacred
duty."[24] Confucius affirmed, in the strongest and most unrestricted
terms, the duty of avenging the murder of a father or a brother.[25]
In Japan "the man who was weak enough not to try to put to death the
murderer of his father or his lord, was obliged to flee into hiding;
from that day, he was despised by his own companions."[26] The Lord
said to Moses:--"The revenger of blood himself shall slay the
murderer; when he meeteth him, he shall slay him."[27] A similar rule,
as we have seen, is laid down in the Koran.[28] The idea that
blood-revenge is a sacred duty incumbent on the kindred of the
deceased was probably held by all so-called Aryan peoples.[29] It
still prevails in Albania,[30] Montenegro,[31] and Corsica. "Not to
take revenge is considered by the genuine Corsicans as degrading. . . .
Any one who shrinks from avenging himself . . . is allowed no rest
by his relations, and all his acquaintances upbraid him with
pusillanimity."[32]
[Footnote 19: Grey, _Journals of Expeditions of Discovery in
North-West and Western Australia_, ii. 240.]
[Footnote 20: Dawson, _Australian Aborigines_, p. 71.]
[Footnote 21: Nelson, 'Eskimo about Bering Strait,' in _Ann. Rep. Bur.
Ethn._ xviii. p. 292 _sq._]
[Footnote 22: Domenech, _Seven Years' Residence in the Great Deserts
of North America_, ii. 338.]
[Footnote 23: von Martius, _Beiträge zur Ethnographie Amerika's_,
i. 128.]
[Footnote 24: Im Thurn, _Among the Indians of Guiana_, p. 329 _sq._]
[Footnote 25: Legge, _Chinese Classics_, i. 111. Douglas,
_Confucianism and Taouism_, p. 145.]
[Footnote 26: Dautremer, _loc. cit._ p. 83. _Cf._ Griffis, _Corea_, p.
227 (Coreans).]
[Footnote 27: _Numbers_, xxxv. 19.]
[Footnote 28: For modern Arabs, see Burckhardt, _Notes on the Bedouins
and Wahábys_, p. 313 _sq._; Blunt, _Bedouin Tribes of the Euphrates_,
ii. 207.]
[Footnote 29: Geiger, _op. cit._ ii. 32 (Avesta people). Leist,
_Alt-arisches Jus Gentium_, p. 422. _Idem_, _Græco-italische
Rechtsgeschichte_, p. 323 _sqq._ de Valroger, _op. cit._ p. 472
(Celts). Nordström, _Bidrag till den svenska samhälls-författningens
historia_, ii. 229; Stemann, _Den Danske Retshistorie indtil Christian
V.'s Lov_, p. 574; Keyser, _Efterladte Skrifter_, ii. pt. ii. 95;
Rosenberg, _Nordboernes Aandsliv_, i. 487 (Teutons). Miklosich, 'Die
Blutrache bei den Slaven,' in _Denkschriften der kaiserl. Akademie d.
Wissensch. Philos. histor. Classe_, Vienna, xxxvi. 127 _sqq._ Ewers,
_Das alteste Recht der Russen_, p. 50 _sq._]
[Footnote 30: Hahn, _Albanesische Studien_, i. 176.]
[Footnote 31: Popovi['c], _op. cit._ p. 69. Kohl, _op. cit._ i. 409,
413 _sqq._ Miklosich, _loc. cit._ p. 145.]
[Footnote 32: Gregorovius, _op. cit._ i. 180 _sq._ For other instances
of blood-revenge as a duty, see Boas, 'Central Eskimo,' _Ann. Rep.
Bur. Ethn._ vi. 582; Petroff, 'Report on Alaska,' in _Tenth Census of
the United States_, p. 158 (Atkha Aleuts); Kohler, in _Zeitschr. f.
vergl. Rechtswiss._ vii. 376 (Papuans of New Guinea); Modigliani,
_Viaggio a Nías_, p. 471; Bowring, _Visit to the Philippine Islands_,
p. 177; Macpherson, _Memorials of Service in India_, p. 82 (Kandhs);
Radde, _Die Chews'uren_, p. 115; von Haxthausen, _Transcaucasia_, p.
406 _sqq._ (Ossetes); Munzinger, _Die Sitten und das Recht der Bogos_,
p. 87; Mungo Park, _Travels in the Interior of Africa_, p. 13 (Feloops
bordering on the Gambia); Leuschner, in Steinmetz, _Rechtsverhältnisse
von eingeborenen Völkern in Afrika und Ozeanien_, p. 23 (Bakwiri);
_ibid._ p. 49 (Banaka and Bapuku); Nicole, _ibid._ p. 132
(Diakité-Sarrakolese); Lang, _ibid._ p. 256 _sq._ (Washambala); Kraft,
_ibid._ p. 292 (Wapokomo); Viehe, _ibid._ p. 311 (Ovaherero);
Rautanen, _ibid._ p. 341 (Ondonga); Sorge, _ibid._ p. 418 (Nissan
Islanders in the Bismarck Archipelago).]
{481} The duty of blood-revenge is, in the first place, regarded as a
duty to the dead, not merely because he has been deprived of his
highest good, his life, but because his spirit is believed to find no
rest after death until the injury has been avenged.[33] The
disembodied soul carries into its new existence an eager longing for
revenge, and, till the crime has been duly expiated, hovers about the
earth, molesting the manslayer or trying to compel its own relatives
to take vengeance on him.
[Footnote 33: See Kohler, _Shakespeare vor dem Forum der
Jurisprudenz_, p. 131 _sq._; Steinmetz, _Ethnol. Studien zur ersten
Entwicklung der Strafe_, i. 291 _sqq._; _Idem_, _Rechtsverhältnisse_,
p. 49 (Banaka and Bapuku); Nicole, _ibid._ p. 132 (Diakité-Sarrakolese);
Lang, _ibid._ p. 257 (Washambala).]
According to Yakut beliefs, a person who is murdered becomes a
_yor_, that is, his ghost never comes to rest.[34] The Cheremises
imagine that the spirits of persons who have died a violent death
cause illness, especially fever and ague.[35] The Saoras of India seem
to have most fear of the spirits of those who have died violent
deaths.[36] The Burmese believe that persons who meet a violent death
become "nats "and haunt the place where they were killed.[37] The
Hudson Bay Eskimo regard the island of Akpatok as tabooed since the
murder of part of the crew of a wrecked vessel, who camped on that
island; "not a soul visits that locality lest the ghosts of the
victims should appear and supplicate relief from the natives, who have
not the proper offerings to make to appease them."[38] The Omahas
believe that the spirits of those who have been killed reappear after
death, their errand being "to solicit vengeance on the perpetrators of
the deed."[39] According to Genesis, the voice of {482} blood shed
cried for vengeance until the murderer was punished.[40] A similar
notion prevailed among the Bedouins, hence they thought they might
escape the taking of revenge by covering up the blood with earth.[41]
One of the most popular ghost stories in folk-tales is that which
treats of the ghost of a murdered person flitting about the haunts of
the living with no gratification but to terrify them.[42] According to
Rohde, this belief was in full force at Athens in the fifth and fourth
centuries before Christ.[43] Aeschylus attributes an Erinys to the
heinous crime of a man's neglecting his duty as avenger of
blood[44]--in other words, the soul of the slain turned its anger
against the neglectful relative. Traces of the same belief still
survive in various parts of Europe.[45] In Wärend, in Sweden, the
people maintain that the unsatisfied ghost of a murdered man visits
his relatives at night, and disturbs their rest; and it was an ancient
custom among them that, if the murderer was not known, the nearest
relation of the dead, before the knell began, went forward to the
corpse and asked the dead himself to avenge his murder.[46]
[Footnote 34: Sumner, in _Jour. Anthr. Inst._ xxxi. 101.]
[Footnote 35: Abercromby, _Pre- and Proto-historic Finns_, i. 168 _sq._]
[Footnote 36: Fawcett, in _Jour. Anthrop. Soc. Bombay_, i. 59.]
[Footnote 37: Schway Yoe, _The Burman_, i. 286.]
[Footnote 38: Turner, 'Ethnology of the Ungava District,' in _Ann.
Rep. Bur. Ethn._ xi. 186.]
[Footnote 39: James, _Expedition from Pittsburgh to the Rocky
Mountains_, i. 267.]
[Footnote 40: _Genesis_, iv. 10.]
[Footnote 41: Jacob, _Leben der vorislâmischen Beduinen_, p. 146.
_Cf._ Schwally, _Leben nach dem Tode_, p. 52 _sq._]
[Footnote 42: See Dyer, _The Ghost World_, p. 65 _sqq._; Andree,
_Ethnographische Parallelen_, p. 80 _sqq._]
[Footnote 43: Rohde, _Psyche_, p. 240. _Cf._ _Idem_, 'Paralipomena,'
in _Rheinisches Museum für Philologie_, 1895, p. 19 _sq._; Schmidt,
_Ethik der alten Griechen_, ii. 125 _sqq._]
[Footnote 44: Aeschylus, _Choephori_, 283 _sqq._ _Cf._ _ibid._ 400
_sqq._; Plato, _Leges_, ix. 866.]
[Footnote 45: Dyer, _op. cit._ p. 68 _sqq._ Thorpe, _Northern
Mythology_, ii. 19 _sq._]
[Footnote 46: Hyltén-Cavallius, _Wärend och Wirdarne_, ii. 274; i. 473.]
From one point of view, blood-revenge is thus a form of human
sacrifice. Sometimes it even formally bears a strong resemblance to
certain other human sacrifices which are offered to the dead. Among
some Queensland tribes, when the assassin has been caught red-handed,
the slayer and slain are buried together in the same grave;[47] and
among the ancient Teutons the avenger by preference slew the culprit
at the feet of the murdered man, or at his tomb.[48] Blood-revenge
also resembles other kinds of human sacrifice so far that it serves as
a safeguard for the sacrificer--in this case the avenger, who would
otherwise expose himself to the persecutions of the revengeful spirit
of the dead.
[Footnote 47: Roth, _Ethnological Studies among the North-West-Central
Queensland Aborigines_, p. 165.]
[Footnote 48: Wilda, _Strafrecht der Germanen_, pp. 170, 692.]
But the practice of blood-revenge is not exclusively {483} based on a
desire to avenge the injury done to a fellow-creature and to gratify
the angry passion of his soul. The act which caused his death is at
the same time an injury inflicted upon the survivors. Hence, in many
cases, a murder committed within the family or kin is left
unavenged.[49] Among the Iroquois, says Loskiel, any one who has
murdered his own relative escapes without much difficulty, since the
family, who alone have a right to take revenge, do not choose to
weaken their influence by depriving themselves of another member
besides the one whom they have already lost.[50] Again, when the
murderer belongs to an extraneous family, the injury inflicted on the
relatives of the murdered man suggests not only revenge, but reparation.
[Footnote 49: Steinmetz, _Ethnologische Studien zur ersten Entwicklung
der Strafe_, ii. 159 _sqq._ Mauss, 'La religion et les origines du
droit pénal,' in _Revue de l'histoire des religions_, xxxv. 44.
Kovalewsky, 'Les origines du devoir,' in _Revue internationale de
Sociologie_, ii. 86. _Cf._ Seebohm, _Tribal Custom in Anglo-Saxon
Law_, pp. 30, 42 (Welsh); Robertson Smith, _Religion of the Semites_,
p. 420; _Idem_, _Marriage and Kinship in early Arabia_, p. 25. Among
the Jbâla of Northern Morocco blood-revenge is taken for the killing
of a cousin, but not for the killing of a brother.]
[Footnote 50: Loskiel, _History of the Mission of the United Brethren
among the Indians in North America_, i. 16.]
The taking of life for life may itself, in a way, serve as
compensation. It seems that, in some cases, the blood of the slain
homicide is supposed to restore, as it were, to the family of his
victim the loss of life which he has caused them.[51] Such an idea
probably underlies a custom which Burckhardt heard existed among the
Hallenga, who draw their origin from Abyssinia. When the slayer has
been seized by the relatives of the deceased, a family feast is
proclaimed, at which the murderer is brought into their midst. While
his throat is then slowly cut with a razor, the blood is caught in a
bowl and handed round amongst the guests, "every one of whom is bound
to drink of it at the moment the victim breathes his last."[52] Among
various Arabic-speaking tribes in Morocco I have met with a practice
which also, possibly, involves a vague idea of restoration. On the
perpetration of his deed the avenger {484} licks off the blood from
the blade of the dagger with which he killed his victim; and in one
instance related to me, he bit off a piece of flesh from the dead body
and sucked its blood.[53] Mr. Trumbull even goes so far as to believe
that, among the Hebrews, the primal idea of the _goel_'s mission was
not to wreak vengeance, but "to restore life for life, or to secure
the adjusted equivalent of a lost life."[54] But it is difficult to
suppose that the exacting of blood-revenge ever could have been looked
upon as an equivalent in the full sense of the term. If the loss of
life is to be compensated some other practice must take its place.
[Footnote 51: _Cf._ Trumbull, _Blood Covenant_, p. 126 _sqq._]
[Footnote 52: Burckhardt, _Travels in Nubia_, p. 356.]
[Footnote 53: _Cf._ Goldziher, in Robertson Smith, _Kinship and
Marriage in Early Arabia_, p. 296 n. 1.]
[Footnote 54: Trumbull, _Blood Covenant_, pp. 260, 263.]
Sometimes the manslayer, instead of being killed, is adopted as a
member of the family of his victim.[55] Among the Kabyles of Algeria,
for instance, a person who has killed another unintentionally, goes to
the parents of the dead and says to them: "If you want to kill me,
kill me, here is my winding-sheet. If not, pardon me, and I shall
henceforth be one of your children." And from this day the manslayer
is considered to belong to the _kharouba_, or _gens_, of the
deceased.[56] Among the Jbâla of Northern Morocco, again, a homicide
sometimes induces the avenger to abstain from his persecutions by
giving him his sister or daughter in marriage; and a similar custom
has been noticed among the Beni Amer[57] and Bogos.[58] In other cases
slaves are given to the relatives of the slain in order to atone for
the guilt;[59] but most commonly the compensation consists of cattle,
money, or other property.
[Footnote 55: See Steinmetz, _Studien_, i. 410 _sqq._, 439 _sqq._;
Kovalewsky, in _Revue Internationale de Sociologie_, ii. 87 _sq._]
[Footnote 56: Hanoteau and Letourneux, _La Kabylie_, iii. 68 _sq._]
[Footnote 57: Munzinger, _Ostafrikanische Studien_, p. 322.]
[Footnote 58: _Idem_, _Die Sitten und das Recht der Bogos_, p. 83.
_Cf._ Kohler, _Nachwort zu Shakespeare vor dem Forum der
Jurisprudenz_, p. 15 _sq._]
[Footnote 59: Squier, 'Archæology and Ethnology of Nicaragua,' in
_Trans. American Ethn. Soc._ iii. pt. i. 129. _Idem_, _Nicaragua_, ii.
345 (ancient Nicaraguans). Macdonald, _Africana_, i. 171 (Eastern
Central Africans).]
By giving presents to the relatives of his victim, the offender not
only repairs the loss which he has inflicted {485} upon them, but also
appeases their wounded feelings.[60] The pleasure of gain tends to
suppress their passion, and the loss and humiliation which the
adversary suffers by the gift exercise a healing influence on their
resentment.[61] Sometimes the present is chiefly intended to serve as
an apology. Among the Iroquois, according to Mr. Morgan, the white
wampum which the murderer sent to the family of his victim and which,
if accepted, for ever wiped out the memory of his deed, "was not in
the nature of a compensation for the life of the deceased, but of a
regretful confession of the crime, with a petition for forgiveness."[62]
Compensation, moreover, has the advantage of saving the injured party
the dangers involved in a blood-feud, the uncertainty of the issue,
and the serious consequences which may result from the accomplished
act of revenge. Whilst the carrying out of the principle of "life for
life" often leads to protracted hostilities between the parties,
compensation has a tendency to bring about a durable peace. For this
reason it is to the interest of society at large to encourage the
latter practice; and this encouragement naturally adds to its attractions.
[Footnote 60: Rée, _Entstehung des Gewissens_, p. 57 _sqq._ Steinmetz,
_Studien_, i. 472 _sq._]
[Footnote 61: _Cf._ Miklosich, _loc. cit._ p. 148; Kohl, _op. cit._ i.
426, 436 (Montenegrines and Albanians).]
[Footnote 62: Morgan, _League of the Iroquois_, pp. 331, 333. _Cf._
Turner, _Samoa_, p. 326 (people of Aneiteum).]
But in spite of its merits, the practice of composition has, in
comparison with blood-revenge, various disadvantages. It is not
equally calculated to satisfy a revengeful mind. It has to contend
with the conservatism of ancient custom. It may be taken as a token of
cowardice or weakness, whereas the blood-feud gives to its perpetrator
an opportunity to display his courage and skill. It may be considered
offensive to the dead kinsman. Finally, if it is to flourish, it
presupposes a certain amount of wealth.[63] {486} The importance of
these difficulties depends on the circumstances in each special case.
Vindictiveness, conservatism, the desire for fighting, and the
estimation in which courage and martial ability are held, are
naturally subject to variations, and so are people's wealth and their
willingness to compensate. The ideas held concerning the spirits of
the departed are likewise variable. The readiness with which
blood-money was accepted among the Greeks of the Homeric age has been
explained by their belief in the disembodied soul's dreamlike
existence in Hades, without strong passions and without the power to
molest the living; whilst the later custom of demanding life for life
has been interpreted as the result of a change of ideas which
attributed much greater activity to the dead.[64] In other cases the
deceased is supposed to be appeased by a mere ceremony, or by a
vicarious sacrifice. The Ossetes believe that he often appears in a
dream to some of his descendants, "tantôt pour exiger de lui la
vengeance, tantôt pour lui permettre, au contraire, de la remplacer
par un simple office des morts . . . . Revêtu d'habits de deuil, les
cheveux épars, l'assassin Ossète vient sur la tombe de celui qu'il a
tué, pour accomplir une cérémonie dont le but avéré est de se
consacrer lui-même à sa victime. Cette cérémonie est connue sous le
nom de _kifaeldicïn_: le meurtrier se livre spontanément au défunt,
qui, en la personne de son descendant, lui pardonne son offense."[65]
In Eastern Central Africa, says Mr. Macdonald, "if one man slay
another, the friends of the deceased are justified in killing the
murderer on the spot. But if they catch him alive they put him in a
slave-stick, till compensation be made by a heavy fine of from four to
twenty slaves. When the fine is paid the life of the murderer is not
demanded, but several of the slaves obtained in compensation are
killed, to accompany the deceased."[66] In other instances the dead is
perhaps supposed to be appeased by the mere compensation {487} paid to
his descendants, or his feelings are simply disregarded when they
collide with the interests of the living.[67] Generally speaking, the
question whether compensation is to be accepted or not, must be
settled by a balancing of advantages and drawbacks.
[Footnote 63: For the influence of wealth on the practice of
composition, see Steinmetz, _Studien_, i. 427 _sqq._, and Lippert,
_Kulturgeschichte der Menschheit_, ii. 591. Occasionally, however,
composition occurs even among such a poor people as the Yahgans of
Tierra del Fuego. "Sometimes," says Mr. Bridges (in _A Voice for South
America_, xiii. 207), "the murderer is suffered to live, but he is
much beaten and hurt, and has to make many presents to the relatives
of the dead."]
[Footnote 64: Schmidt, _Ethik der alten Griechen_, ii. 125 _sqq._
Rohde, _Psyche_, pp. 8 _sqq._, 238.]
[Footnote 65: Kovalewsky, _Coutume contemporaine et loi ancienne_,
p. 238.]
[Footnote 66: Macdonald, _Africana_, i. 170 _sq._]
[Footnote 67: _Cf._ Steinmetz, _Studien_, i. 452.]
We may expect, then, to find the customs regarding blood-revenge and
compensation to vary exceedingly among different peoples. Among many
the rule of revenge is strictly followed, and compensation never, or
rarely, accepted, at least for intentional homicide. This group
includes not only tribes who are in a state of savagery, but peoples
like the Beni Amer,[68] Marea,[69] Kabyles of Jurjura,[70] and Jbâla
of Morocco. Burckhardt says of the Bedouins:--"The stronger and the
more independent a tribe is, the more remote from cultivated
provinces, and the wealthier its individuals, the less frequently are
the rights of the _Thar_ commuted into a fine. Great sheiks, all over
the Desert, regard it as a shameful transaction to compromise in any
degree for the blood of their relations."[71] Among the mountains of
Daghestan[72] and in parts of Albania[73] it is likewise considered
disgraceful to accept compensation for the murder of a relative.
[Footnote 68: Munzinger, _Ostafrikanische Studien_, p. 321 _sq._]
[Footnote 69: _Ibid._ p. 242.]
[Footnote 70: Hanoteau and Letourneux, _op. cit._ iii. 61 _sq._]
[Footnote 71: Burckhardt, _Notes on the Bedouins and Wahábys_, p. 178,
_Cf._ Burton, _Pilgrimage to Al-Madinah and Meccah_, ii. 103.]
[Footnote 72: Kovalesky, in _Revue internationale de Sociologie_,
ii. 87.]
[Footnote 73: Hahn, _op. cit._ i. 178.]
In some instances the acceptance of compensation does not necessarily
mean that the family of the slain altogether renounce their right of
revenge. Among the Ahts, "though it is usual to accept large presents
as expiation for murder, yet, practically, this expiation is not
complete, and blood alone effectually atones for blood. An accepted
present never quite cancels the obligation to punish in the breast of
the offended person or tribe."[74] Among the Somals, "after the
equivalent is paid, the {488} murderer or one of his clan, contrary to
the spirit of El Islam, is generally killed by the kindred or tribe of
the slain."[75] Among the Berbers (Shlu[h.]) of the province of Sûs,
in Southern Morocco, a person who commits homicide immediately flees
to another tribe, and places himself under its protection. His
relatives then pay _ddit_, or blood-money, to the family of the
victim, but this only prevents the offended party from taking revenge
on any of them, and does not entitle the murderer to return; if he
appears outside the tribe to whom he has fled for refuge, he is at any
time liable to be killed. Among the Ossetes, again, it was formerly "a
prevalent custom for a murderer to pay a fixed price for a certain
time to the family of the murdered man, say for a year, during which
time the blood-revenge remained dormant."[76]
[Footnote 74: Sproat, _Scenes and Studies of Savage Life_, p. 153.]
[Footnote 75: Burton, _First Footsteps in East Africa_, p. 87 n. [dagger].
_Cf._ Paulitschke, _Ethnographie Nordost-Afrikas_, p. 263.]
[Footnote 76: von Haxthausen, _Transcaucasia_, p. 405.]
In many instances, on the other hand, custom allows the acceptance of
compensation as a perfectly justifiable alternative for blood-revenge,
or even regards it as the proper method of settling the case. Among
the Indians of Western Washington and North-Western Oregon the
principle of life for life, though fully recognised, is sometimes
abrogated in favour of material damages.[77] Among the Thlinkets "the
murder of a relative can be atoned for by a certain number of
blankets."[78] Among the Californian Karok the murder of a man's
nearest relative may be compounded for by the payment of money.[79]
The Kutchin demand blood-money for a slain kinsman, but avenge his
death should such be denied.[80] Among the Kandhs the custom of
blood-revenge was modified by the principle of money compensation, the
acceptance of such compensation being in no case considered
disgraceful.[81] In the Malay Archipelago, whilst the more ferocious
tribes {489} insist, in many situations, upon a literal compliance
with the law of retaliation, other tribes constantly accept a
pecuniary compensation.[82] Among the majority of the Bedawee tribes
of Egypt compensation is generally taken in commutation for
vengeance;[83] and the same is the case among the Aenezes, though it
would reflect shame on the friends of the slain person if they were to
make the first overture.[84] Among the Wadshagga, again, the
acceptance of blood-money is obligatory.[85] The Vendîdâd forbids the
followers of Zoroastrianism to refuse the compensation offered for a
deed of bloodshed.[86] Among the Irish the public opinion of the
village held that the quarrels between its members should be
compromised in a certain manner. However, if the guilty party did not
pay the amount awarded, the community did not compel him to do so, and
the injured party was then at liberty to avenge his own wrongs by
reprisals or levying of private war.[87] Among the Teutons the kindred
of the slain might, in early times, choose between taking revenge or
accepting compensation, just as they liked; but later on they were
expected by public opinion, and finally required by public authority,
not to pursue the feud if the proper composition was forthcoming,
except in a few extreme cases.[88]
[Footnote 77: Gibbs, 'Tribes of Western Washington and Northwestern
Oregon,' in _Contributions to North American Ethnology_, i. 189.]
[Footnote 78: Petroff, _loc. cit._ p. 165.]
[Footnote 79: Powers, _Tribes of California_, p. 21.]
[Footnote 80: Richardson, _Arctic Searching Expedition_, i. 386.]
[Footnote 81: Hunter, _Annals of Rural Bengal_, ii. 76. Macpherson,
_Memorials of Service in India_, p. 82.]
[Footnote 82: Crawfurd, _History of the Indian Archipelago_, iii. 111.]
[Footnote 83: Lane, _Manners and Customs of the Modern Egyptians_,
p. 120.]
[Footnote 84: Burckhardt, _Notes on the Bedouins and Wahábys_, p. 87.]
[Footnote 85: Merker, quoted by Kohler, in _Zeitschr. f. vergl.
Rechtswiss._ xv. 56.]
[Footnote 86: Geiger, _op. cit._ ii. 34.]
[Footnote 87: _Ancient Laws of Ireland_, iii. p. lxxx.]
[Footnote 88: Keyser, _op. cit._ ii. pt. ii. 95. Pollock and Maitland,
_op. cit._ i. 46 _sq._ _Gotlands-Lagen_, 13.]
Thus the exaction of life for life, from being a duty incumbent on the
family of the dead, becomes a mere right of which they may or may not
avail themselves, as they please, and is at last publicly disapproved
of or actually prohibited. Among the circumstances by which this
process has been brought about there is still one which calls for
special attention, namely, the pressure of some intervening authority,
the elders of the tribe,[89] or {490} the chief, inducing the avenger
to lay down his weapon and to accept money for blood. I do not say
that the practice of compensation has originated in such an
intervention; we meet it among peoples who know nothing of courts,
judges, or regular arbitrators.[90] But when we hear of chiefs making
efforts to check the blood-feud by persuading the injured party to
accept remuneration in money or property, it is impossible to doubt
that some connection exists between the system of compensation and the
judicial power of the chief. Among the Indians of Brazil, when blood
is shed, either designedly or accidentally, by one of the same tribe,
the chief not seldom insists upon the acceptance of compensation by
the family of the deceased.[91] Of the people of Nias, amongst whom
the offender may suffer death at the hands of the avenger, we read
that even grave cases, when brought before the chief, are often
punished by fines only.[92] Among the Dooraunees, in Western
Afghanistan, "if the offended party complains to the Sirdar, or if
_he_ hears of a murder committed, he first endeavours to bring about a
compromise, by offering the Khoon Behau, or of price of blood."[93]
The Teutonic nations, as Kemble observes, in the course of time made
the State the arbitrator between the parties "by establishing a tariff
at which injuries should be rated, and committing to the State the
duty of compelling the injured person to receive, and the wrong-doer
to pay, the settled amount. It thus engaged to act as a mediator
between the conflicting interests, with a view to the maintenance of
the general peace."[94]
[Footnote 89: _Cf._ Vámbéry, _Das Türkenvolk_, p. 305 _sq._ (Kirghiz);
Munzinger, _Ostafrikanische Studien_, p. 500 (Barea and Kunáma).]
[Footnote 90: _E.g._, the Fuegians (Bridges, in _South American
Missionary Magazine_, xiii. 152. _Idem_, in _A Voice for South
America_, xiii. 207).]
[Footnote 91: von Martius, _Beiträge zur Ethnographie Amerika's_, i.
130. _Idem_, in _Jour. Roy. Geographical Soc._ ii. 199.]
[Footnote 92: Modigliani, _Viaggio a Nías_, p. 496.]
[Footnote 93: Elphinstone, _Kingdom of Caubul_, ii. 105 _sq._]
[Footnote 94: Kemble, _Saxons in England_, i. 270.]
We have previously discussed the important measure of substituting
punishment for revenge by transferring the judicial and executive
power of the avenger to a special authority within the body politic,
commissioned with {491} the administration of justice. The system of
compensation was only one or the methods adopted by such an authority
for the settling of disputes; and, on the whole, it was a sign of
weakness. Speaking of the Rejangs of Sumatra, Marsden observes that
the practice of expiating murder by the payment of a certain sum of
money "had doubtless its source in the imbecility of government, which
being unable to enforce the law of retaliation, the most obvious rule
of punishment, had recourse to a milder scheme of retribution, as
being preferable to absolute indemnity."[95] When the central power of
jurisdiction is firmly established, the rule of life for life regains
its sway.[96] Thus, in the mature legislation of semi-civilised and
civilised peoples, up to quite recent times, murder has almost
invariably been treated as a capital offence--unless, indeed,
committed by some person belonging to a specially privileged class,
such as the Peruvian Incas,[97] the Brâhmanas of India,[98] or, in
England, all who had the benefit of Clergy, that is, every man who
knew how to read, with the exception of those who were married to
widows.[99] But among many of the lower races, also, manslayers are
subject to capital punishment, in the proper sense of the term--to
death inflicted, not by an individual avenger, but by the community at
large or by some special authority.[100]
[Footnote 95: Marsden, _History of Sumatra_, p. 246.]
[Footnote 96: _Cf._ Brunner, _Deutsche Rechtsgeschichte_, ii. 599
_sq._ (Teutonic peoples).]
[Footnote 97: Réville, _Hibbert Lectures on the Native Religions of
Mexico and Peru_, p. 151.]
[Footnote 98: _Laws of Manu_, viii. 380 _sq._]
[Footnote 99: Stephen, _History of the Criminal Law of England_, i.
458 _sqq._ According to the Cornelian law, a free Roman citizen could
not be punished capitally for the commission of murder, but was simply
exiled from Italy, whereas a slave was executed for a similar crime
(Mommsen, _Römisches Strafrecht_, p. 631 _sq._).]
[Footnote 100: _Supra_, pp. 171, 172, 189. Veniaminof, quoted by
Petroff, _loc. cit._ p. 152 (Aleuts). Adair, _History of the American
Indians_, p. 150. Morgan, _League of the Iroquois_, p. 331. Harmon,
_Journals of Voyages and Travels_, p. 348 (Indians on the east side of
the Rocky Mountains). Turner, _Samoa_, pp. 178, 295, 334 (Samoans,
natives of Arorae, Efatese). Thomson, in _Jour. Anthr. Inst._ xxxi.
143 (Savage Islanders). Hickson, _A Naturalist in North Celebes_, p.
198 (Sangirese, in former days). Abreu de Galindo, _History of the
Discovery and Conquest of the Canary Islands_, p. 27 (aborigines of
Ferro). Johnston, _Uganda Protectorate_, ii. 882 (Mutei). Beltrame,
_Il Fiume Bianco e i Dénka_, p. 77. In all these cases homicide or
murder is said to be punished with death; but it may be that, in some
of them, our authorities have not sufficiently distinguished between
punishment and blood-revenge.]
It is not only by the slaying of a fellow-creature that a person may
forfeit his right to live. Among various peoples custom allows, or
sometimes even compels, the offended party to kill the offender in
cases which involve {492} no blood-guiltiness, especially
adultery;[101] and we hear of capital punishment being inflicted not
only for homicide, but for treason,[102] incest,[103] adultery,[104]
witchcraft,[105] sacrilege,[106] theft,[107] and other offences.[108]
We have seen that among semi-civilised and civilised nations,
particularly, the punishment of death has been applied to a great
variety of offences, many of which appear to us almost venial.[109]
And we have discussed both the origin of the idea that justice
requires life for life, and the circumstances that have led to the
infliction of punishments the severity of which, apparently at least,
bears no proportion to the magnitude of the crime.[110]
[Footnote 101: _Supra_, p. 290 _sqq._ _Infra_, on Sexual Morality.
Post, _Studien zur Entwicklungsgeschichte des Familienrechts_,
p. 134 _sq._]
[Footnote 102: _Supra_, p. 189.]
[Footnote 103: _Infra_, on Sexual Morality.]
[Footnote 104: _Supra_, p. 189. _Infra_, on Sexual Morality.]
[Footnote 105: _Supra_, p. 189 _sq._]
[Footnote 106: _Supra_, p. 197.]
[Footnote 107: _Infra_, on the Right of Property.]
[Footnote 108: _Supra_, p. 195.]
[Footnote 109: _Supra_, p. 186 _sqq._]
[Footnote 110: _Supra_, ch. vii.]
But whilst, among peoples of culture, capital punishment has been
inflicted far beyond the limits of the _lex talionis_, we meet, on the
other hand, among such peoples with opinions to the effect that it
should not be applied even in the most atrocious cases. The old
philosopher Lao-tsze, the founder of Taouism, condemned it both as
useless and as irreverent. The people, he argued, do not fear death;
to what purpose, then, is it to try to frighten them with death? There
is only one who presides over the infliction of it. "He who would
inflict death in the room of him who presides over it may be described
as hewing wood instead of a great carpenter. Seldom is it that he who
undertakes the hewing, instead of the great carpenter, does not cut
his own hands."[111] Nor does Confucius seem to have been in favour of
capital punishment. When Chî {493} K'ang asked his opinion as to the
killing of "the unprincipled for the good of the principled,"
Confucius replied:--"Sir, in carrying on your government, why should
you use killing at all? Let your evinced desires be for what is good,
and the people will be good."[112] The early Christians generally
condemned the punishment of death, as well as all other forms of
shedding human blood;[113] but when the Church obtained an ascendency,
the condemnation of it was modified into the doctrine that no priest
or bishop must take any part in a capital charge.[114] Later on, from
the twelfth century at least, the priest might assist at judicial
proceedings resulting in a sentence of death, if only he withdrew for
the moment, when the sentence was passed.[115] And whilst
ostentatiously sticking to the principle, "Ecclesia non sitit
sanguinem,"[116] the Church had frequent recourse to the convenient
method of punishing heretics by relegating the execution of the
sentence to the civil power, with a prayer that the culprit should be
punished "as mildly as possible and without the effusion of blood,"
that is, by the death of fire.[117] In modern times the views of the
early Christians regarding capital punishment have been revived by the
Quakers;[118] but the powerful movement in favour of its abolition
chiefly derives its origin from the writings of Beccaria and the
French Encyclopedists.
[Footnote 111: _Tâo Teh King_, 74.]
[Footnote 112: _Lun Yü_, xii. 19.]
[Footnote 113: Hetzel, _Die Todesstrafe_, p. 71 _sqq._ Günther, _Die
Idee der Wiedervergeltung_, i. 271. Lactantius, _Divinæ
Institutiones_, vi. ('De vero cultu') 20 (Migne, _Patrologiæ cursus_,
vi. 708): ". . . occidere hominem sit semper nefas, quem Deus sanctum
animal esse voluit."]
[Footnote 114: _Supra_, p. 381 _sq._ Lecky, _History of European
Morals_, ii. 39. Laurent, _Études sur l'histoire de l'Humanité_, iv.
223; vii. 233.]
[Footnote 115: Gerhohus, _De ædificio Dei_, 35 (Migne, _op. cit._
cxciv. 1282).]
[Footnote 116: Katz, _Grundriss des kanonischen Strafrechts_, p. 54.]
[Footnote 117: Lecky, _History of European Morals_, ii. 41.]
[Footnote 118: Gurney, _Views & Practices of the Society of Friends_,
pp. 377 n. 1, 389.]
The great motive force of this movement has been sympathy with human
suffering and horror of the destruction of human life--feelings which
have been able to operate the more freely, the less they have been
checked either by the belief in the social expediency of {494} capital
punishment, or by the notion of a vindictive god who can be
conciliated only by the death of the offender. It has been argued that
the punishment of death is no more effective as a deterrent from crime
than are certain other punishments. According to Beccaria, it is not
the intensity of a pain which produces the greatest effect on the mind
of man, but its continuance; hence the execution of a culprit,
occupying a short time only, must be a less deterring example than
perpetual slavery, which ought to be the penalty for the greatest
crimes.[119] Moreover, the circumstances which unavoidably attend the
practical application of the punishment of death are such as excite
the sympathy of the public in favour of the perpetrator of the crime
and thereby seriously impair the efficacy of the punishment as an
example.[120] An execution is regarded as less degrading than many
other forms of punishment; when a man dies on the scaffold there is a
counterpoise to the disgrace in the admiration excited by his
firmness, whereas there is no such counterpoise when a man goes off in
the prison van to be immured in a cell.[121] Statistical data prove,
it is said, that, where capital punishment has been abolished either
for certain crimes or generally, crime has not become more frequent
after the abolition, whilst the re-enactment of capital punishment, or
greater strictness in its execution, has nowhere diminished the number
of offences punishable with death.[122] And the punishment of death is
no more required by the dictates of abstract justice than it is
requisite for the safety of the community. It is quite an arbitrary
assumption, based on the rude theory of talion, that death must be
inflicted on him who has caused death; such an assumption can be
refuted simply by showing that there are many degrees of
homicide.[123] Nay, far from being postulates of the highest justice,
laws which {495} prescribe capital punishment may lead to the highest
injustice. As Bentham observes, "the punishment of death is not
remissible"; error is possible in all judgments, but whilst in every
other case of judicial error compensation can be made, death alone
admits of no compensation.[124] And not only may the innocent have to
suffer an irreparable punishment, but the criminal easily escapes his
punishment altogether. Experience shows that the punishment of death
has the disadvantage of diminishing the repressive power of the legal
menace, because witnesses, judges, and jurymen exert themselves to the
utmost in order to avoid arriving at a verdict of guilty in many cases
where an execution would be the consequence of such a verdict.[125]
Finally, the punishment of death almost entirely misses one of the
most essential aims of every legitimate punishment, the reformation of
the criminal. Nay, by putting him to a speedy death we actually
prevent him from morally reforming himself, and from manifesting the
fruits of sincere repentance; and we perhaps deprive him of the
opportunity of making good his claim to mercy at the hands of another
and a higher Tribunal, on which we are arrogantly encroaching in a
matter of which we are wholly unfit to judge.[126]
[Footnote 119: Beccaria, _Dei delitti e delle pene_, § 16.]
[Footnote 120: Romilly, _Punishment of Death_, p. 56 _sqq._]
[Footnote 121: _Ibid._ p. 47 _sq._ Hetzel, _op. cit._ p. 454 _sqq._]
[Footnote 122: Mittermaier, _Die Todesstrafe_, p. 150 _sqq._
Olivecrona, _Om dödsstraffet_, p. 130 _sqq._]
[Footnote 123: Mittermaier, _op. cit._ pp. 62, 133. von Mehring,
_Frage von der Todesstrafe_, p. 19 _sqq._]
[Footnote 124: Bentham, _Rationale of Punishment_, p. 186 _sqq._ _Cf._
Hetzel, _op. cit._ p. 442 _sqq._]
[Footnote 125: Bentham, _op. cit._ p. 191 _sq._ Mittermaier, _op.
cit._ pp. 98 _sqq._, 148.]
[Footnote 126: Romilly, _op. cit._ p. 3 _sqq._]
Under the influence of these and similar arguments, but chiefly owing
to an increasing reluctance to take human life, the legislation of
Europe has, from the end of the eighteenth century, undergone a
radical change with reference to the punishment of death. In several
European and American States it has been formally abolished, or is
nowadays never inflicted,[127] whilst in the rest it is practically
restricted to cases of wilful murder. But it still has as strenuous
advocates as ever, and receives much support from popular feelings. It
is said that the abolition of capital punishment would remove one of
the {496} best safeguards of society; that it definitely prevents the
criminal from doing further mischief; that it is a much more effective
means of deterring from crime than any other penalty; that its
abolition would have the disadvantage of crimes widely differing in
their nature being placed on the same footing; that a person
criminally disposed, if he knew that he would only be punished with
imprisonment for life, would, instead of merely perpetrating robbery,
commit murder at the same time, being aware that no higher penalty on
that account would be inflicted; and so forth. As usually, religion
also is called in to give strength to the argument. Several writers
maintain that the statements in the Bible which command capital
punishment have an obligatory power on all Christian legislators;[128]
we even meet with the assertion that the object of this punishment is
not the protection of civil society, but to carry out the justice of
God, in whose name "the judge should sentence and the executioner
strike."[129] But I venture to believe that the chief motive for
retaining the punishment of death in modern legislation is the strong
hold which the principle of talion has on the minds of legislators, as
well as on the mind of the public. This supposition derives much
support from the fact that capital punishment is popular only in the
case of murder. "Blood, it is said, will have blood, and the
imagination is flattered with the notion of the similarity of the
suffering, produced by the punishment, with that inflicted by the
criminal."[130]
[Footnote 127: Günther, _op. cit._ iii. 347 _sqq._ von Liszt,
_Lehrbuch des Deutschen Strafrechts_, p. 261.]
[Footnote 128: Mittermaier, _op. cit._ p. 128 _sqq._]
[Footnote 129: Clay, _The Prison Chaplain_, p. 357.]
[Footnote 130: Bentham, _Rationale of Punishment_, p. 191.]