XV. HOMICIDE IN GENERAL (continued)…

XV. HOMICIDE IN GENERAL (continued)

CHRISTIANITY introduced into Europe a higher regard for human life than was felt anywhere in pagan society. The early Christians condemned homicide of any kind as a heinous sin. And in this, as in all other questions of moral concern, the distinction of nationality or race was utterly ignored by them.

The sanctity which they attached to the life of every human being led to a total condemnation of warfare, sharply contrasting with the prevailing sentiment in the Roman Empire. In accordance with the general spirit of their religion, as also with special passages in the Bible,[1] they considered war unlawful under all circumstances. Justin Martyr quotes the prophecy of Isaiah, that "nation shall not lift up sword against nation, neither shall they learn war any more,"[2] and proceeds to say that the instruction in the word of God which was given by the twelve Apostles "had so good effect that we, who heretofore were continually devouring each other, will not now so much as lift up our hand against our enemies."[3] Lactantius asserts that "to engage in war cannot be lawful for the righteous man, whose warfare is that of righteousness itself."[4] Tertullian asks, "Can it be lawful to {346} handle the sword, when the Lord Himself has declared that he who uses the sword shall perish by it?"[5] And in another passage he states that "the Lord by his disarming of Peter disarmed every soldier from that time forward."[6] Origen calls the Christians the children of peace, who, for the sake of Jesus, never take up the sword against any nation; who fight for their monarch by praying for him, but who take no part in his wars, even though he urge them.[7] It is true that, even in early times, Christian soldiers were not unknown; Tertullian alludes to Christians who were engaged in military pursuits together with their heathen countrymen.[8] But the number of Christians enrolled in the army seems not to have been very considerable before the era of Constantine,[9] and, though they were not cut off from the Church, their profession was looked upon as hardly compatible with their religion. St. Basil says that soldiers, after their term of military service has expired, are to be excluded from the sacrament of the communion for three whole years.[10] And according to one of the canons of the Council of Nice, those Christians who, having abandoned the profession of arms, afterwards returned to it, "as dogs to their vomit," were for some years to occupy in the Church the place of penitents.[11]

[Footnote 1: St. Matthew, v. 9, 39, 44. Romans, xii. 17. Ephesians, vi. 12.]

[Footnote 2: Isaiah, ii. 4.]

[Footnote 3: Justin Martyr, Apologia I. pro Christianis, 39 (Migne, Patrologiæ cursus, Ser. Graeca, vi. 387 sq.).]

[Footnote 4: Lactantius, Divinæ institutiones, vi. ('De vero cultu') 20 (Migne, op. cit. vi. 708).]

[Footnote 5: Tertullian, De corona, 11 (Migne, op. cit. ii. 92).]

[Footnote 6: Tertullian, De idolatria, 19 (Migne, op. cit. i. 691).]

[Footnote 7: Origen, Contra Celsum, v. 33; viii. 73 (Migne, op. cit. Ser. Graeca, xi. 1231 sq., 1627 sq.).]

[Footnote 8: Tertullian, Apologeticus, 42 (Migne, op. cit. i. 491).]

[Footnote 9: Le Blant, Inscriptions chrétiennes de la Gaule, i. 84 sqq.]

[Footnote 10: St. Basil, Epistola CLXXXVIII., ad Amphilochium, can. 13 (Migne, op. cit. Ser. Graeca, xxxii. 681 sq.).]

[Footnote 11: Concilium Nicænum, A.D. 325, can. 12 (Labbe-Mansi, Sacrorum Conciliorum collectio, ii. 674).]

A divine law which prohibited all resistance to enemies could certainly not be accepted by the State, especially at a time when the Empire was seriously threatened by foreign invaders. Christianity could therefore never become a State-religion unless it gave up its attitude towards war. And it gave it up. Already in 314 a Council condemned soldiers who, from religious motives, {347} deserted their colours.[12] The Fathers of the fourth and fifth centuries did not altogether disapprove of war. Chrysostom and Ambrose, though seeing the difficulty of reconciling it with the theory of Christian life which they found in the New Testament, perceived that the use of the sword was necessary to preserve the State.[13] St. Augustine went much farther. He tried to prove that the practice of war was quite compatible with the teachings of Christ. The soldiers mentioned in the New Testament, who were seeking for a knowledge of salvation, were not directed by our Lord to throw aside their arms and renounce their profession, but were advised by him to be content with their wages.[14] St. Peter baptised Cornelius, the centurion, in the name of Christ, without exhorting him to give up the military life,[15] and St. Paul himself took care to have a strong guard of soldiers for his defence.[16] And was not the history of David, the "man after God's own heart," an evidence of those being wrong who say that "no one who wages war can please God"?[17] When Christ declared that "all they that take the sword shall perish with the sword,"[18] He referred to such persons only as arm themselves to shed the blood of others without either command or permission of any superior or lawful authority.[19] A great deal depends on the causes for which men undertake war, and on the authority they have for doing so. Those wars are just which are waged with a view to obtaining redress for wrongs, or to chastising the undue arrogance of another State. The monarch has the power of making war when he thinks it advisable, and, even if he be a sacrilegious {348} king, a Christian may fight under him, provided that what is enjoined upon the soldier personally is not contrary to the precept of God.[20] In short, though peace is our final good, though in the City of God there is peace in eternity,[21] war may sometimes be a necessity in this sinful world.

[Footnote 12: Concilium Arelatense I. A.D. 314, can. 3 (Labbe-Mansi, op. cit. ii. 471). Cf. Le Blant, op. cit. i. p. lxxxii.]

[Footnote 13: Gibb, 'Christian Church and War,' in British Quarterly Review, lxxiii. 83.]

[Footnote 14: St. Augustine, Epist. CXXXVIII., ad Marcellinum, 15 (Migne, op. cit. xxxiii. 531 sq.).]

[Footnote 15: St. Augustine, Epist. CLXXXIX., ad Bonifacium, 4 (Migne, op. cit. xxxiii. 855).]

[Footnote 16: St. Augustine, Epistola XLVII., ad Publicolam, 5 (Migne, op. cit. xxxiii. 187).]

[Footnote 17: St. Augustine, Epist. CLXXXIX., ad Bonifacium, 4 (Migne, op. cit. xxxiii. 855).]

[Footnote 18: St. Matthew, xxvi. 52.]

[Footnote 19: St. Augustine, Contra Faustum Manichæum, xxii. 70 (Migne, op. cit. xlii, 444).]

[Footnote 20: St. Augustine, Contra Faustum Manichæum, xxii. 75 (Migne, op. cit. xlii. 448).]

[Footnote 21: St. Augustine, De civitate Dei, xix. 11.]

By the writings of St. Augustine the theoretical attitude of the Church towards war was definitely settled, and later theologians only reproduced or further elaborated his views. Yet it was not with a perfectly safe conscience that Christianity thus sanctioned the practice of war. There was a feeling that a soldier scarcely could make a good Christian. In the middle of the fifth century, Leo the Pope declared it to be contrary to the rules of the Church that persons after the action of penance--that is, persons then considered to be pre-eminently bound to obey the law of Christ--should revert to the profession of arms.[22] Various Councils forbade the clergy to engage in warfare,[23] and certain canons excluded from ordination all who had served in an army after baptism.[24] Penance was prescribed for those who had shed blood on the battle-field.[25] Thus {349} the ecclesiastical canons made in William the Conqueror's reign by the Norman prelates, and confirmed by the Pope, directed that he who was aware that he had killed a man in a battle should do penance for one year, and that he who had killed several should do a year's penance for each.[26] Occasionally the Church seemed to wake up to the evils of war in a more effective way; there are several notorious instances of wars being forbidden by popes. But in such cases the prohibition was only too often due to the fact that some particular war was disadvantageous to the interests of the Church. And whilst doing comparatively little to discourage wars which did not interfere with her own interests, the Church did all the more to excite war against those who were objects of her hatred.

[Footnote 22: Leo Magnus, Epistola XC., ad Rusticum, inquis. 12 (Migne, op. cit. liv. 1206 sq.).]

[Footnote 23: One of the Apostolic Canons requires that any bishop, priest, or deacon who devotes himself to military service shall be degraded from his ecclesiastical rank (Canones ecclesiastici qui dicuntur Apostolorum, 83 [74] [Bunsen, Analecta Ante-Nicæna, ii. 31]). The Councils of Toulouse, in 633 (ch. 45, in Labbe-Mansi, op. cit. x. 630), and of Meaux, in 845 (can. 37, ibid. xiv. 827), condemned to a similar punishment those of the clergy who ventured to take up arms. Gratian says (Decretum, ii. 23. 8. 4) that the Church refuses to pray for the soul of a priest who died on the battle-field. Notwithstanding the canons of Councils and the decrees of popes, ecclesiastics frequently participated in battles (Nicolaus I. Epistolæ et Decreta, 83 [Migne, op. cit. cxix. 922]. Robertson, History of the Reign of Charles V. i. 330, 385. Ward, Foundation and History of the Law of Nations, i. 365 sq. Buckle, History of Civilisation in England, i. 204; ii. 464. Bethune-Baker, Influence of Christianity on War, p. 52. Dümmler, Geschichte des Ostfränkischen Reichs, ii. 637).]

[Footnote 24: Grotius, De jure belli et pacis, i. 2. 10. 10. Bingham, Antiquities of the Christian Church, iv. 4. 1 (Works, ii. 55).]

[Footnote 25: P[oe]nitentiale Bigotianum, iv. i. 4 (Wasserschleben, Bussordnungen der abendländischen Kirche, p. 453). P[oe]nit. Vigilanum, 27 (ibid. p. 529). P[oe]nit. Pseudo-Theodori, xxi. 15 (ibid. p. 587 sq.). Cf. Mort de Garin le Loherain, p. 213: "Ainz se repent et se claime cheti; Ses pechiés plore au soir et au matin, De ce qu'il a tans homes mors et pris."]

[Footnote 26: Wilkins, Concilia Magnæ Britanniæ et Hiberniæ, i. 366.]

It has been suggested that the transition from the peaceful tenets of the primitive Church to the essentially military Christianity of the crusades, was chiefly due to the terrors and the example of Islam. "The spirit of Muhammedanism," says Mr. Lecky, "slowly passed into Christianity, and transformed it into its image." Until then, "war was rather condoned than consecrated, and, whatever might be the case with a few isolated prelates, the Church did nothing to increase or encourage it."[27] But this view is hardly consistent with facts. Christianity had entered on the war-path already before it came into contact with Muhammedanism. Wars against Arian peoples had been represented as holy wars, for which the combatants would be rewarded by Heaven.[28] The war which Chlodwig made upon the Visigoths was not only undertaken with the approval of the clergy, but it was, as Mr. Greenwood remarks, "properly their war, and Chlodwig undertook it in the capacity of a religious champion in all things but the disinterestedness which ought to distinguish that character." Remigius of Reims assisted him by his countenance and advice, and the {350} Catholic priesthood set every engine of their craft in motion to second and encourage him.[29] In the Church itself there were germs out of which a military spirit would naturally develop itself. The famous dictum, "Nulla salus extra ecclesiam," was promulgated as early as the days of Cyprian. The general view of mediæval orthodoxy was, that those beyond the pale of the Church, heathen and heretics alike, were unalterably doomed to hell, whereas those who would acknowledge her authority, confess their sins, receive the sacrament of baptism, partake of the eucharist and obey the priest, would be infallibly saved. If war was allowed by God, could there be a more proper object for it than the salvation of souls otherwise lost? And for those who refuse to accept the gift of grace offered to them, could there be a juster punishment than death? Moreover, had not the Israelites fought great battles "for the laws and the sanctuary"?[30] Had not the Lord Himself commissioned them to attack, subdue, and destroy his enemies? Had He not commanded them to root out the natives of Canaan, who, because of their abominations, had fallen under God's judgment, and to kill man and beast in the Israelitish cities which had given themselves to idolatry, and to burn all the spoil, with the city itself, as a whole offering to Yahveh?[31] There was no need, then, for the Christians to go to the Muhammedans in order to learn the art of religious war. The Old Testament, the revelation of God, gave better lessons in it than the Koran, and was constantly cited in justification of any cruelty committed in the name of religion.[32]

[Footnote 27: Lecky, History of European Morals, ii. 251 sq.]

[Footnote 28: Gibb, loc. cit. p. 86.]

[Footnote 29: Greenwood, First Book of the History of the Germans, p. 518.]

[Footnote 30: 1 Maccabees, xiii. 3. Thomas Aquinas (Summa theologica, ii-ii. 188. 3) quotes this passage in support of the doctrine, that fighting may be directed to the preservation of divine worship.]

[Footnote 31: Deuteronomy, xiii. 15 sq.]

[Footnote 32: Cf. Constant, De la religion, ii. 229 sq.]

It was thus in perfect consistency with the general teachings of the Church that she regarded an exploit achieved against the infidels as a merit which might obliterate the guilt of the most atrocious crimes. Such a {351} deed was the instrument of pardon to Henry II. for the murder of Becket,[33] and was supposed to be the means of cure to St. Louis in a dangerous illness. Fighting against infidels took rank with fastings, penitential discipline, visits to shrines, and almsgivings, as meriting the divine mercy.[34] He who fell in the battle could be confident that his soul was admitted directly into the joys of Paradise.[35] And this held good not only of wars against Muhammedans. The massacres of Jews and heretics seemed no less meritorious than the slaughter of the more remote enemies of the Gospel. Nay, even a slight shade of difference from the liturgy of Rome became at last a legitimate cause of war.

[Footnote 33: Lyttelton, History of the Life of King Henry the Second, iii. 96.]

[Footnote 34: Cf. Milman, History of Latin Christianity, iv. 209.]

[Footnote 35: Cf. Laurent, Études sur l'histoire de l'humanité, vii. 257.]

It is true that these views were not shared by all. At the Council of Lyons, in 1274, the opinion was pronounced, and of course eagerly attacked, that it was contrary to the examples of Christ and the Apostles to uphold religion with the sword and to shed the blood of unbelievers.[36] In the following century, Bonet maintained that, according to Scriptures, a Saracen or any other disbeliever could not be compelled by force to accept the Christian faith.[37] Franciscus a Victoria declared that "diversity of religion is not a cause of just war";[38] and a similar opinion was expressed by Soto,[39] Covarruvias a Leyva,[40] and Suarez.[41] According to Balthazar Ayala, the most illustrious Spanish lawyer of the sixteenth century, it does not belong to the Church to punish infidels who {352} have never received the Christian faith, whereas those who, having once received it, afterwards endeavour to prevent the propagation of the Gospel, may, like other heretics, be justly persecuted with the sword.[42] But the majority of jurisconsults, as well as of canonists, were in favour of the orthodox view that unbelief is a legitimate reason for going to war.[43] And this principle was, professedly, acted upon to an extent which made the history of Christianity for many centuries a perpetual crusade, and transformed the Christian Church into a military power even more formidable than Rome under Cæsar and Augustus. Very often religious zeal was a mere pretext for wars which in reality were caused by avarice or desire for power. The aim of the Church was to be the master of the earth rather than the servant of heaven. She preached crusades not only against infidels and heretics, but against any disobedient prince who opposed her boundless pretensions. And she encouraged war when rich spoils were to be expected from the victor, as a thankoffering to God for the victory He had granted, or as an atonement for the excesses which had been committed.

[Footnote 36: Bethune-Baker, op. cit. p. 73.]

[Footnote 37: Bonet, L'arbre des batailles, iv. 2, p. 86: "Selon la sainte Escripture nous ne pouvons et si ne devons contredire ne efforcer ung mescreant à recepvoir ne le saint bapteme ne la sainte foy ainsi les devons laisser en leur franche volonté que Dieu leur a donnée."]

[Footnote 38: Franciscus a Victoria, Relectiones Theologicæ, vi. 10, p. 231: "Caussa iusti belli non est diuersitas religionis." Yet infidels may be constrained to allow the Gospel to be preached (ibid. v. 3. 12, p. 214 sq.).]

[Footnote 39: Soto, De justititia et jure, v. 3. 5, fol. 154.]

[Footnote 40: Covariuvias a Leyva, Regulæ, Pecatum, ii. 10. 2 (Opera omnia, i. 496): "Infidelitas non priuat infideles dominio, quod habent iure humano, vel habuerunt ante legem Euangelicam in prouinciis et regnis, quae obtinent."]

[Footnote 41: Suarez, cited by Nys, Droit de la guerre et les précurseurs de Grotius, p. 98.]

[Footnote 42: Ayala, De iure et officiis bellicis et disciplina militari, i. 2. 29 sq.]

[Footnote 43: Nys, op. cit. p. 89. Idem, in his Introduction to Bonet's L'arbre des batailles, p. xxiv. According to Conradus Brunus (De legationibus, iii. 8, p. 115), for instance, any war waged by Christians against the enemies of the Christian faith is just, as being undertaken for the defence of religion and the glory of God in order to recover the possession of dominions unjustly held by infidels.]

Out of this union between war and Christianity there was born that curious bastard, Chivalry. The secular germ of it existed already in the German forests. According to Tacitus, the young German who aspired to be a warrior was brought into the midst of the assembly of the chiefs, where his father, or some other relative, solemnly equipped him for his future vocation with shield and javelin.[44] Assuming arms was thus made a social distinction, which subsequently derived its name {353} from one of its most essential characteristics, the riding a war-horse. But Chivalry became something quite different from what the word indicates. The Church knew how to lay hold of knighthood for her own purposes. The investiture, which was originally of a purely civil nature, became, even before the time of the crusades, as it were, a sacrament.[45] The priest delivered the sword into the hand of the person who was to be made a knight, with the following words, "Serve Christi, sis miles in nomine Patris, Filii, et Spiritus Sancti, Amen."[46] The sword was said to be made in semblance of the cross so as to signify "how our Lord God vanquished in the cross the death of human lying";[47] and the word "Jesus" was sometimes engraven on its hilt.[48] God Himself had chosen the knight to defeat with arms the miscreants who wished to destroy his Holy Church, in the same way as He had chosen the clergy to maintain the Catholic faith with Scripture and reasons.[49] The knight was to the body politic what the arms are to the human body: the Church was the head, Chivalry the arms, the citizens, merchants, and labourers the inferior members; and the arms were placed in the middle to render them equally capable of defending the inferior members and the head.[50] "The greatest amity that should be in this world," says the author of the 'Ordre of Chyualry,' "ought to be between the knights and clerks."[51] The several gradations of knighthood were regarded as parallel to those of the Church.[52] And after the conquest of the Holy Land the union between the profession of arms and the religion of Christ became still more intimate by the institution of the two military orders of monks, the Knights Templars and Knights of St. John of Jerusalem.

[Footnote 44: Tactitus, Germania, 13. According to Honoré de Sainte Marie (Dissertations historiques et critiques sur la Chevalerie, p. 30 sqq.), Chivalry is of Roman, according to some other writers, of Arabic origin. M. Gautier (La Chevalerie, pp. 14, 16) repudiates these theories, and regards Chivalry as "un usage germain idéalisé par l'Église." See also Rambaud, Histoire de la civilisation française, i. 178 sq.]

[Footnote 45: Scott, 'Essay on Chivalry,' in Miscellaneous Prose Works, vi. 16. Mills, History of Chivalry, i. 10 sq. For a description of the various religious ceremonies accompanying the investiture, see The Book of the Ordre of Chyualry or Knyghthode, fol. 27 b sqq. Cf. also Favyn, Theater of Honour and Knight-Hood, i. 52.]

[Footnote 46: Favyn, op. cit. i. 52.]

[Footnote 47: Ordre of Chyualry, fol. 31 a sq.]

[Footnote 48: Mills, op. cit. i. 71.]

[Footnote 49: Ordre of Chyualry, fol. 11 b.]

[Footnote 50: Le Jouuencel, fol. 94 sqq.]

[Footnote 51: Ordre of Chyualry, fol. 12 a.]

[Footnote 52: Scott, loc. cit. p. 15.]

{354} The duties which a knight took on himself by oath were very extensive, but not very well defined. He should defend the holy Catholic faith, he should defend justice, he should defend women, widows, and orphans, and all those of either sex that were powerless, ill at ease, and groaning under oppression, and injustice.[53] In the name of religion and justice he could thus practically wage war almost at will. Though much real oppression was undoubtedly avenged by these soldiers of the Church, the knight seems as a rule to have cared little for the cause or necessity of his doing battle. "La guerre est ma patrie, Mon harnois ma maison: Et en toute saison Combatre c'est ma vie," was a saying much in use in the sixteenth century.[54] The general impression which Froissart gives us in his history is, that the age in which he lived was completely given over to fighting, and cared about nothing else whatever.[55] The French knights never spoke of war but as a feast, a game, a pastime. "Let them play their game," they said of the cross-bow men, who were showering down arrows on them; and "to play a great game," jouer gros jeu, was their description of a battle.[56] Previous to the institution of Chivalry there certainly existed much fighting in Christian countries, but knighthood rendered war "a fashionable accomplishment."[57] And so all-absorbing became the passion for it that, as real injuries were not likely to occur every day, artificial grievances were created, and tilts and tournaments were invented in order to keep in action the sons of war when they had no other employments for their courage. Even in these images of war--which were by no means so harmless as they have sometimes been represented to be[58]--the intimate connection {355} between Chivalry and religion displays itself in various ways. Before the tournament began, the coats of arms, helmets, and other objects were carried into a monastery, and after the victory was gained the arms and the horses which had been used in the fight were offered up at the church.[59] The proclamations at the tournaments were generally in the name of God and the Virgin Mary. Before battle the knights confessed, and heard mass; and, when they entered the lists, they held a sort of image with which they made the sign of the cross.[60] Moreover, "as the feasts of the tournaments were accompanied by these acts of devotion, so the feasts of the Church were sometimes adorned with the images of the tournaments."[61] It is true that the Church now and then made attempts to stop these performances.[62] But then she did so avowedly because they prevented many knights from joining the holy wars, or because they swallowed up treasures which might otherwise with advantage have been poured into the Holy Land.[63]

[Footnote 53: Ordre of Chyualry, foll. 11 b, 17 a. Sainte-Palaye, Mémoires sur l'ancienne Chevalerie, i. 75, 129.]

[Footnote 54: De la Nouë, Discours politiques et militaires, p. 215.]

[Footnote 55: See Sir James Stephen's essay on 'Froissart's Chronicles,' in his Horæ Sabbaticæ, i. 22 sqq.]

[Footnote 56: Sainte-Palaye, op. cit. ii. 61.]

[Footnote 57: Millingen, History of Duelling, i. 70.]

[Footnote 58: Sainte-Palaye, op. cit. i. 179; ii. 75. Du Cange, 'Dissertations sur l'histoire de S. Louys,' in Petitot, Collection des Mémoires relatifs à l'histoire de France, iii. 122 sq. Honoré de Sainte Marie, op. cit. p. 186.]

[Footnote 59: Sainte-Palaye, op. cit. i. 151.]

[Footnote 60: Ibid. ii. 57.]

[Footnote 61: Ibid. ii. 57 sq.]

[Footnote 62: Du Cange, loc. cit. p. 124 sqq. Honoré de Sainte Marie, op. cit. p. 186. Sainte-Palaye, op. cit. ii. 75.]

[Footnote 63: Du Cange, loc. cit. p. 125 sq.]

Closely connected with the feudal system was the practice of private war. Though tribunals had been instituted, and even long after the kings' courts had become well-organised and powerful institutions, a nobleman had a right to wage war upon another nobleman from whom he had suffered some gross injury.[64] On such occasions not only the relatives, but the vassals, of the injured man were bound to help him in his quarrel, and the same obligation existed in the case of the aggressor.[65] Only greater crimes were regarded as legitimate causes of private war,[66] but this rule was not at all strictly observed.[67] As {356} a matter of fact, the barons fled to arms upon every quarrel; he who could raise a small force at once made war upon him who had anything to lose. The nations of Europe were subdivided into innumerable subordinate states, which were almost independent, and declared war and made treaties with all the vigour and all the ceremonies of powerful monarchs. Contemporary historians describe the excesses committed in prosecution of these intestine quarrels in such terms as excite astonishment and horror; and great parts of Europe were in consequence reduced to the condition of a desert, which it ceased to be worth while to cultivate.[68]

[Footnote 64: The right of private war generally supposed nobility of birth and equality of rank in both the contending parties (Beaumanoir, Coutumes du Beauvoisis, lix. 5 sq. vol. ii. 355 sqq.; Robertson, History of the Reign of Charles V. i. 329). But it was also granted to the French communes, and to the free towns in Germany, Italy, and Spain (Du Boys, Histoire du droit criminel des peuples modernes, ii. 348).]

[Footnote 65: Du Cange, loc. cit. pp. 450, 458.]

[Footnote 66: Ibid. p. 445 sq. Arnold, Deutsche Urzeit, p. 341. von Wächter, Beiträge zur deutschen Geschichte, p. 46.]

[Footnote 67: We read of a nobleman who declared war against the city of Frankfort, because a lady residing there had promised to dance with his cousin, but danced with another; and the city was obliged to satisfy the wounded honour of the gentleman (von Wächter, op. cit. p. 57).]

[Footnote 68: Robertson, op. cit. i. 332.]

The Church made some feeble attempts to put an end to this state of things. Thus, about the year 990, ordinances were directed against the practice of private war by several bishops in the south of France, who agreed to exclude him who violated their ordinances from all Christian privileges during his life, and to deny him Christian burial after his death.[69] A little later, men engaged in warfare were exhorted, by sacred relics and by the bodies of saints, to lay down their arms and to swear that they would never again disturb the public peace by their private hostilities.[70] But it is hardly likely that such directions had much effect as long as the bishops and abbots themselves were allowed to wage private war by means of their vidames, and exercised this right scarcely less frequently than the barons.[71] Nor does it seem that {357} the Church brought about any considerable change for the better by establishing the Truce of God, involving obligatory respite from hostilities during the great festivals of the Church, as also from the evening of Wednesday in each week to the morning of Monday in the week ensuing.[72] We are assured by good authorities that the Truce was generally disregarded, though the violator was threatened with the penalty of excommunication.[73] Most barons could probably say with Bertram de Born:--"La paix ne me convient pas; la guerre seule me plaît. Je n'ai égard ni aux lundis, ni aux mardis. Les semaines, les mois, les années, tout m'est égal. En tout temps, je veux perdre quiconque me nuit."[74] The ordinance enjoining the treuga Dei was transgressed even by the popes.[75] It was too unpractical a direction to be obeyed, and was soon given up even in theory by the authorities of the Church. Thomas Aquinas says that, as physicians may lawfully apply remedies to men on feast-days, so just wars may be lawfully prosecuted on such days for the defence of the commonwealth of the faithful, if necessity so requires; "for it would be tempting God for a man to want to keep his hands from war under stress of such necessity."[76] And in support of this opinion he quotes the first Book of the Maccabees, where it is said, "Whosoever shall come to make battle with us on the sabbath day, we will fight against him."[77]

[Footnote 69: 'Charta de Treuga et Pace per Aniciensem Praesulem Widonem in Congregatione quamplurium Episcoporum, Principium, et Nobilium hujus Terrae sancita,' in Dumont, Corps universel diplomatique du droit des gens, i. 41.]

[Footnote 70: Raoul Glaber, Histori sui temporis, iv. 5 (Bouquet, Rerum Gallicarum et Francicarum Scriptores, x. 49). Robertson, op. cit. i. 335.]

[Footnote 71: Brussel, Nouvel examen de l'usage général des fiefs en France, i. 144. How much the prelates were infected by the general spirit of the age, appears from a characteristic story of an archbishop of Cologne who gave to one of his vassals a castle situated on a sterile rock. When the vassal objected that he could not subsist on such a soil, the archbishop answered, "Why do you complain? Four roads unite under the walls of your castle" (Du Boys, Histoire du droit criminel de l'Espagne, p. 504).]

[Footnote 72: Raoul Glaber, op. cit. v. 1 (loc. cit. p. 59). Du Cange, Glossarium ad scriptores mediæ et infimæ Latinitatis, vi. 1267 sq. Henault, Nouvel abrégé chronologique de l'histoire de France, p. 106.]

[Footnote 73: Du Cange, Glossarium, vi. 1272. Nys, Droit de la guerre et les précurseurs de Grotius, p. 114.]

[Footnote 74: Villemain, Cours de littérature française, Littérature du Moyen Age, i. 122 sq.]

[Footnote 75: Belli, De re militari, quoted by Nys, op. cit. p. 115.]

[Footnote 76: Thomas Aquinas, op. cit. ii.-ii. 40. 4.]

[Footnote 77: Maccabees, ii. 41.]

It seems that the main cause of the abolition of private war was not any measure taken by the Church, but the increase of the authority of emperors or kings. In France the right of waging private war was moderated by Louis IX., checked by Philip IV., suppressed by {358} Charles VI.[78] In England, after the Norman Conquest, private wars seem to have occurred more rarely than on the Continent, probably owing to the strength of the royal authority, which made the execution of justice more vigorous and the jurisdiction of the King's court more extensive than was the case in most other countries.[79] In Scotland the practice of private war received its final blow only late in the eighteenth century, when the clans were reduced to order after the rebellion of 1745.[80] Whilst, then, it is impossible to ascribe to the Church any considerable part in the movement which ultimately led to the entire abolition of private war, we have, on the other hand, to take into account the encouragement which the Church gave to the warlike spirit of the time by the establishment of Chivalry[81] and by sanctioning war as a divine institution. War came to be looked upon as a judgment of God and the victory as a sign of his special favour. Before a battle, the service of mass was usually performed by both armies in the presence of each other, and no warrior would fight without secretly breathing a prayer.[82] Pope Adrian IV. says that a war commenced under the auspices of religion cannot but be fortunate;[83] and it was commonly believed that God took no less interest in the battle than did the fighting warriors. Bonet, who wrote in the fourteenth century, puts to himself the question, why there are so many wars in the world, and gives the answer, "que toutes sont pour le pechié du siecle dont nostre seigneur Dieu pour le pugnir permet les guerres, car ainsi le maintient l'escripture."[84]

[Footnote 78: Robertson, op. cit. i. 55, 56, 338 sqq. Hallam, View of the State of Europe during the Middle Ages, i. 207. Brussel, op. cit. i. 142.]

[Footnote 79: Ibid. i. 343 sq. Prof. Freeman (Comparative Politics, p. 328 sq.) mentions as the last instance of private war in England one from the time of Edward IV.]

[Footnote 80: Lawrence, Essays on some Disputed Questions in Modern International Law, p. 254 sq.]

[Footnote 81: I do not understand how M. Gautier can say (op. cit. p. 6) that Chivalry was the most beautiful of those means by which the Church endeavoured to check war.]

[Footnote 82: Mills, History of Chivalry, i. 147.]

[Footnote 83: Laurent, op. cit. vii. 245.]

[Footnote 84: Bonet, op. cit. iv. 54, p. 150.]

Similar opinions have retained their place in the orthodox creeds both of the Catholic and Protestant {359} Churches up to the present day. The attitude adopted by the great Christian congregations towards war has been, and is still, to a considerable degree, that of sympathetic approval. The Catechism of the Council of Trent brings home that there are on record instances of slaughter executed by the special command of God Himself, as when the sons of Levi, who put to death so many thousands in one day, after the slaughter were thus addressed by Moses, "Ye have consecrated your hands this day to the Lord."[85] Even quite modern Catholic writers refer to the canonists who held that a State might lawfully make war upon a heretic people which was spreading heresy, and upon a pagan people which prevented the preaching of the Gospel.[86] Again, when the Protestant Churches became State-Churches, their ministers, considering themselves as in the service of the State, were ready to champion whatever war the Government pleased to undertake. As Mr. Gibb observes, the Protestant minister was as ready with his Thanksgiving Sermon for the victories of a profligate war, as the Catholic priest was with his Te Deum; "indeed, the latter was probably the more independent of the two, because of his allegiance to Rome."[87] The new Confessions of Faith explicitly claimed for the State the right of waging war, and the Anabaptists were condemned because they considered war unlawful for a Christian.[88] Even the necessity of a just cause as a reason for taking part in warfare, which was reasserted at the time of the Reformation, was subsequently allowed to drop out of sight. Mr. Farrer calls attention to the fact that in the 37th article of the English Church, which is to the effect that a Christian at the command of the magistrate may wear weapons and serve in wars, the word justa in the Latin form preceding the word bella has been omitted altogether.[89]

[Footnote 85: Catechism of the Council of Trent, iii. 6. 5.]

[Footnote 86: Adds and Arnold, Catholic Dictionary, p. 944.]

[Footnote 87: Gibb, loc. cit. p. 90.]

[Footnote 88: Augsburg Confession, i. 16. Second Helvetic Confession, xxx. 4.]

[Footnote 89: Farrer, Military Manners and Customs, p. 208.]

{360} Nor did the old opinion that war is a providential institution and a judgment of God die with the Middle Ages. Lord Bacon looks upon wars as "the highest trials of right; when princes and states that acknowledge no superior upon earth shall put themselves upon the justice of God, for the deciding of their controversies by such success as it shall please Him to give on either side."[90] Réal de Curban says that a war is seldom successful unless it be just, hence the victor may presume that God is on his side.[91] According to Jeremy Taylor, "kings are in the place of God, who strikes whole nations, and towns, and villages; and war is the rod of God in the hands of princes."[92] And it is not only looked upon as an instrument of divine justice, but it is also said, generally, "to work out the noble purposes of God."[93] Its tendency, as a theological writer assures us, is "to rectify and exalt the popular conception of God," there being nothing among men "like the smell of gunpowder for making a nation perceive the fragrance of divinity in truth."[94] By war the different countries "have been opened up to the advance of true religion."[95] "No people ever did, or ever could, feel the power of Christian principle growing up like an inspiration through the national manhood, until the worth of it had been thundered on the battle-field."[96] War is, "when God sends it, a means of grace and of national renovation"; it is "a solemn duty in which usually only the best Christians and most trustworthy men should be commissioned to hold the sword."[97] According to M. Proudhon, it is the most sublime phenomenon of our moral life,[98] a divine revelation more authoritative than the Gospel itself.[99] The warlike people is the religious people;[100] war is the sign of {361} human grandeur, peace a thing for beavers and sheep. "Philanthrope, vous parlez d'abolir la guerre; prenez garde de dégrader le genre humain."[101]

[Footnote 90: Bacon, Letters and Life, i. (Works, viii.), 146.]

[Footnote 91: Réal de Curban, La science du gouvernement, v. 394 sq.]

[Footnote 92: Taylor, Whole Works, xii. 164.]

[Footnote 93: 'The Sword and Christianity,' in Boston Review devoted to Theology and Literature, iii. 261.]

[Footnote 94: Ibid. iii. 259, 257.]

[Footnote 95: Holland, Time of War, p. 14.]

[Footnote 96: Boston Review, iii. 257.]

[Footnote 97: 'Christianity and War,' in Christian Review, xxvi. 604.]

[Footnote 98: Proudhon, La guerre et la paix, ii. 420.]

[Footnote 99: _Ibid._i.62; ii. 435.]

[Footnote 100: Ibid. i. 45.]

[Footnote 101: Ibid. i. 43.]

In order to prove the consistency of war with Christianity appeals are still, as in former days, made to the Bible; to the divinely-sanctioned example of the ancient Israelites, to the fact that Jesus never prohibited those around Him from bearing arms, to the instances of the centurions mentioned in the Gospel, to St. Paul's predilection for taking his spiritual metaphors from the profession of the soldier, and so on.[102] According to Canon Mozley, the Christian recognition of the right of war was contained in Christianity's original recognition of nations.[103] "By a fortunate necessity," a universal empire is impossible.[104] Each nation is a centre by itself, and when questions of right and justice arise between these independent centres, they cannot be decided except by mutual agreement or force. The aim of the nation going to war is exactly the same as that of the individual in entering a court, and the Church, which has no authority to decide which is the right side, cannot but stand neutral and contemplate war forensically, as a mode of settling national questions, which is justified by the want of any other mode.[105] A natural justice, Canon Mozley adds, is inherent not only in wars of self-defence; there is an instinctive reaching in nations and masses of people after alteration and readjustment, which has justice in it, and which arises from real needs. The arrangement does not suit as it stands, there is want of adaptation, there is confinement and pressure; there are people kept away from each other that are made to be together, and parts separated that were made to join. All this uneasiness in States naturally leads to war. Moreover, there are wars of progress which, so far as they are really necessary for the due advantage of mankind and {362} growth of society, are approved of by Christianity, though they do not strictly belong to the head of wars undertaken in self-defence.[106] A doctrine which thus, in the name of religion, allows the waging of wars for rectifying the political distribution of nationalities and races, and forwarding the so-called progress of the world, naturally lends itself to the justification of almost any war entered upon by a Christian State.[107] As a matter of fact, it would be impossible to find a single instance of a war waged by a Protestant country, from any motive, to which the bulk of its clergy have not given their sanction and support. The opposition against war has generally come from other quarters.

[Footnote 102: See e.g., Browne, Exposition of the Thirty-Nine Articles, p. 827 sq.; Christian Review, xxvi. 603 sq.; Eclectic Magazine, xiii. 372.]

[Footnote 103: Mozley, 'On War,' in Sermons preached before the University of Oxford, p. 119.]

[Footnote 104: Ibid. p. 112.]

[Footnote 105: Ibid. p. 100 sqq.]

[Footnote 106: Ibid. 104 sq.]

[Footnote 107: On the principle of progress, Canon Mozley himself justifies (ibid. p. 110 sq.) not only the wars undertaken against two Eastern empires which have shut themselves up and excluded themselves from the society of mankind, but "two of the three great European wars of the last dozen years." This was said in 1871.]

There have been, and still are, Christian sects which, on religious grounds, condemn war of any kind. In the fourteenth century the Lollards taught that homicide in war is expressly contrary to the New Testament; they were persecuted partly on that account.[108] Of the same opinion were the Anabaptists of the sixteenth century; and they could claim on their side the words of men like Colet and Erasmus. From the pulpit of St. Paul's Colet thundered that "an unjust peace is better than the justest war," and that, "when men out of hatred and ambition fight with and destroy one another, they fight under the banner, not of Christ, but of the Devil."[109] According to Erasmus "nothing is more impious, more calamitous, more widely pernicious, more inveterate, more base, or in sum more unworthy of a man, not to say of a Christian," than war. It is worse than brutal; to man no wild beast is more destructive than his fellow-man. When brutes fight, they fight with weapons which nature has given them, whereas we arm ourselves for mutual slaughter with weapons which nature never thought of. Neither do beasts break out {363} in hostile rage for trifling causes, but either when hunger drives them to madness, or when they find themselves attacked, or when they are alarmed for the safety of their young. But we, on frivolous pretences, what tragedies do we act on the theatre of war! Under colour of some obsolete and disputable claim to territory; in a childish passion for a mistress; for causes even more ridiculous than these, we kindle the flame of war. Transactions truly hellish, are called holy wars. Bishops and grave divines, decrepit as they are in person, fight from the pulpit the battles of the princes, promising remission of sins to all who will take part in the war of the prince, and exclaiming to the latter that God will fight for him, if he only keeps his mind favourable to the cause of religion. And yet, how could it ever enter into our hearts, that a Christian should imbrue his hands in the blood of a Christian! What is war but murder and theft committed by great numbers on great numbers! Does not the Gospel declare, in decisive words, that we must not revile again those who revile us, that we should do good to those who use us ill, that we should give up the whole of our possessions to those who take a part, that we should pray for those who design to take away our lives? The world has so many learned bishops, so many grey-headed grandees, so many councils and senates, why is not recourse had to their authority, and the childish quarrels of princes settled by their wise and decisive arbitration? "The man who engages in war by choice, that man, whoever he is, is a wicked man; he sins against nature, against God, against man, and is guilty of the most aggravated and complicated impiety."[110] These were the main arguments of reason, humanity, and religion, which Erasmus adduced against war. They could not leave the reformers entirely unaffected. Sir Thomas More charged Luther himself and his disciples with carrying the doctrines of peace to the extreme limits {364} of non-resistance.[111] But, as we have noticed, these peaceful tendencies only formed a passing phase in the history of Reformation, and were left to the care of sectarians.

[Footnote 108: Perry, History of the English Church, First Period, pp. 455, 467.]

[Footnote 109: Green, History of the English People, ii. 93.]

[Footnote 110: Erasmus, Adagia, iv. 1, col. 893 sqq.]

[Footnote 111: Farrer, Military Manners and Customs, p. 185.]

Among these the Quakers are the most important. By virtue of various passages in the Old and the New Testament,[112] they contend that all warfare, whatever be its peculiar features, circumstances, or pretexts, is wholly at variance with the Christian religion. It is always the duty of Christians to obey their Master's high and holy law--to suffer wrong, to return good for evil, to love their enemies. War is also inconsistent with the Christian principle that human life is sacred, and that death is followed by infinite consequences. Since man is destined for eternity, the future welfare of a single individual is of greater importance than the merely temporal prosperity of a whole nation. When cutting short the days of their neighbour and transmitting him, prepared or unprepared, to the awful realities of an everlasting state, Christians take upon themselves a most unwarrantable responsibility, unless such an action is expressly sanctioned by their divine Master, as was the case among the Israelites. In the New Testament there is no such sanction, hence it must be concluded that, under the Christian dispensation, it is utterly unlawful for one man to kill another, under whatever circumstances of expediency or provocation the deed may be committed. And a Christian who fights by the command of his prince, and in behalf of his country, not only commits sin in his own person, but aids and abets the national transgression.[113]

[Footnote 112: Isaiah, ch. ii. sqq. Micah, iv. 1 sqq. _St. Matthew_, v. 38 sqq.; xxvi. 52. St. Luke, vi. 27 sqq. _St. John_, xviii. 36. Romans, xii. 19 sqq. 1 Peter, iii. 9.]

[Footnote 113: Gurney, Views & Practices of the Society of Friends, p. 375 sqq.]

It must be added that views similar to these are also found independently of any particular form of sectarianism. According to Dr. Wayland, all wars, defensive as well as offensive, are contrary to the revealed will of God, aggression from a foreign nation calling not for retaliation and {365} injury, but rather for special kindness and good-will.[114] Theodore Parker, the Congregational minister, looks upon war as a sin, a corrupter of public morals, a practical denial of Christianity, a violation of God's eternal love.[115] W. Stokes, the Baptist, observes that Christianity cannot sanction war, whether offensive or defensive, because war is an "immeasurable evil, by hurling unnumbered myriads of our fellow-men to a premature judgment and endless despair."[116] Moreover, those who compare the state of opinion during the last years with that of former periods, cannot fail to observe a marked progress of a sentiment antagonistic to war in the various sections of the Christian Church.[117] Yet, speaking generally, the orthodox are still of the same opinion as Sir James Turner, who declared that "those who condemn the profession or art of soldiery, smell rank of Anabaptism and Quakery";[118] and war is in our days, as it was in those of Erasmus,[119] so much sanctioned by authority and custom, that it is deemed impious to bear testimony against it. The duties which compulsory military service imposes upon the male population of most Christian countries presuppose that a Christian should have no scruples about taking part in any war waged by the State, and are recognised as binding by the clergy of those countries. With reference to the Church of England, Dr. Thomas Arnold asks, "Did it become a Christian Church to make no other official declaration of its sentiments concerning war, than by saying that Christian men might lawfully engage in it?"[120]

[Footnote 114: Wayland, Elements of Moral Science, pp. 375, 379.]

[Footnote 115: Parker, Sermon of War, p. 23.]

[Footnote 116: Stokes, All War inconsistent with the Christian Religion, p. 41.]

[Footnote 117: Cf. Gibb, loc. cit. p. 81.]

[Footnote 118: Turner, Pallas Armata, p. 369.]

[Footnote 119: Erasmus, op. cit. iv. 1. 1. col. 894.]

[Footnote 120: Arnold, On the Church, p. 136.]

The protest against war which exercised perhaps the widest influence on public opinion came from a school of moralists whose tendencies were not only anti-orthodox, but distinctly hostile to the most essential dogmas of Christian theology. Bayle, in his Dictionary, calls Erasmus' essay {366} against war one of the most beautiful dissertations ever written.[121] He observes that the more we consider the inevitable consequences of war, the more we feel disposed to detest those who are the causes of it.[122] Its usual fruits may, indeed, "make those tremble who undertake or advise it, to prevent evils which, perhaps, may never happen and which, at the worst, would often be much less than those which necessarily follow a rupture."[123] To Voltaire war is an "infernal enterprise," the strangest feature of which is that "every chief of the ruffians has his colours consecrated, and solemnly prays to God before he goes to destroy his neighbour."[124] He asks what the Church has done to suppress this crime. Bourdaloue preached against impurity, but what sermon did he ever direct against the murder, rapine, brigandage, and universal rage, which desolate the world? "Miserable physicians of souls, you declaim for five quarters of an hour against the mere pricks of a pin, and say no word on the curse which tears us into a thousand pieces."[125] Voltaire admits that under certain circumstances war is an inevitable curse, but rebukes Montesquieu for saying that natural defence sometimes involves the necessity of attack, when a nation perceives that a longer peace would place another nation in a position to destroy it.[126] Such a war, he observes, is as illegitimate as possible:--" It is to go and kill your neighbour for fear that your neighbour, who does not attack you, should be in a condition to attack you; that is to say, you must run the risk of ruining your country, in the hope of ruining without reason some other country; this is, to be sure, neither fair nor useful."[127] The chief causes which induce men to massacre in all loyalty thousands of their brothers and to expose their own people to the most terrible misery, are the ambitions and {367} jealousies of princes and their ministers.[128] Similar views are expressed in the great Encyclopédie:--"La guerre est le plus terrible des fléaux qui détruisent l'espèce humaine: elle n'épargne pas même les vainqueurs; la plus heureuse est funeste. . . . Ce ne sont plus aujourd'hui les peuples qui déclarent la guerre, c'est la cupidité des rois qui leur fait prendre les armes; c'est l'indigence qui les met aux mains de leurs sujets."[129]

[Footnote 121: Bayle, Dictionnaire historique et critique, vi. 239, art. Erasme.]

[Footnote 122: Ibid. ii. 463, art. Artaxata.]

[Footnote 123: Ibid. i. 472, art. Alting (Henri).]

[Footnote 124: Voltaire, Dictionnaire philosophique, art. Guerre ([OE]uvres complètes, xl. 562).]

[Footnote 125: Ibid. p. 564.]

[Footnote 126: Montesquieu, De l'esprit des lois, x. 2 ([OE]uvres complètes, p. 256).]

[Footnote 127: Voltaire, loc. cit. p. 565.]

[Footnote 128: Ibid. pp. 466, 564. For Voltaire's condemnation of war, see Morley, Voltaire, p. 311 sq. I have availed myself of Lord Morley's translation of some of the passages quoted.]

[Footnote 129: Encyclopédie méthodique, Art militaire, ii. 618 sq.]

However vehemently Voltaire and the Encyclopedists condemned war, they did not dream of a time when all wars would cease. Other writers were more optimistic. Already in 1713 Abbé Saint-Pierre--whose abbotship involved only a nominal connection with the Church--had published a project of perpetual peace, which was based on the idea of a general confederation of European nations.[130] This project was much laughed at; Voltaire himself calls its author "un homme moitié philosophe, moitié fou." But once called into being, the idea of a perpetual peace and of a European confederation did not die. It was successively conceived by Rousseau,[131] Bentham,[132] and Kant.[133] But on the other hand it met with a formidable enemy in the awakening spirit of nationalism.

[Footnote 130: Saint-Pierre, Projet de Traité pour rendre la paix perpétuelle entre les souverains Chrétiens.]

[Footnote 131: Rousseau, Extrait du Projet de paix perpétuelle, de M. l'Abbé de Saint-Pierre ([OE]uvres complètes, i. 606 sqq.).]

[Footnote 132: Bentham, A Plan for an universal and perpetual Peace (Works, ii. 546 sqq.).]

[Footnote 133: Kant, Zum ewigen Frieden.]

The Napoleonic oppression called forth resistance. Philosophers and poets sounded the war trumpet. The dream of a universal monarchy was looked upon as absurd and hateful, and the individuality of a nation as the only possible security for its virtue.[134] War was no longer attributed to the pretended interests of princes or to the caprices of their advisers. It was praised as a vehicle of the highest right,[135] as a source or national renovation.[136] {368} By war, says Hegel, "finite pursuits are rendered unstable, and the ethical health of peoples is preserved. Just as the movement of the ocean prevents the corruption which would be the result of perpetual calm, so by war people escape the corruption which would be occasioned by a continuous or eternal peace."[137] Similar views have been expressed by later writers. War is glorified as a stimulus to the elevated virtues of courage, disinterestedness, and patriotism.[138] It has done more great things in the world than the love of man, says Nietzsche.[139] It is the mother of art and of all civil virtues, says Mr. Ruskin.[140] Others defend war, not as a positive good, but as a necessary means of deciding the most serious international controversies, denying that arbitration can be a substitute for all kinds of war. Questions which are intimately connected with national passions and national aspirations, and questions which are vital to a nation's safety, will never, they say, be left to arbitration. Each State must be the guardian of its own security, and cannot allow its independence to be calmly discussed and adjudicated upon by an external tribunal.[141] Moreover, arbitration would prove effective only where the contradictory pretensions could be juridically formulated, and these instances are by far the less numerous and the less important.[142] And would it not, in many cases, be impossible to find impartial arbiters? Would not arbitration often be influenced by a calculation of the forces which every power interested could bring into the field, and would not war be resorted to where arbitration failed to reconcile conflicting interests, or where a decision was opposed to a high-spirited people's sense of justice? These and similar arguments are constantly adduced against the idea of a perpetual peace. But at the same time the opponents of war are becoming more numerous {369} and more confident every day. Already after the fall of Napoleon, when there was a universal longing for peace in the civilised world, the first Peace Societies were formed;[143] and the idea of Saint-Pierre, from being the dream of a philosopher, has become the object of a popular movement which is rapidly increasing in importance. There is every reason to believe that, when the present high tide of nationalism has subsided, and the subject of war and peace is no longer looked upon from an exclusively national point of view, the objections which are now raised against arbitration will at last appear almost as futile as any arguments in favour of private war or blood-revenge. There is an inveterate tendency in the human mind to assume that existing conditions will remain unchanged. But the history of civilisation shows how unfounded any such assumption is with reference to those conditions which determine social relationships and the extent of moral rights and duties.

[Footnote 134: Fichte, Reden an die deutsche Nation. Cf. Idem, Ueber den Begriff des wahrhaften Krieges.]

[Footnote 135: Arndt, quoted by Jähns, Krieg, Frieden und Kultur, p. 302.]

[Footnote 136: Anselm von Feuerbach, Unterdrückung und Wiederbefreiung Europens.]

[Footnote 137: Hegel, Grundlinien der Philosophie des Rechts, § 324, p. 317 (English translation, p. 331).]

[Footnote 138: See, e.g., Mabille, La Guerre, p. 139.]

[Footnote 139: Nietzsche, Also sprach Zarathustra, i. 63.]

[Footnote 140: Ruskin, Crown of Wild Olive, Lecture on War (Works, vi. 99, 105).]

[Footnote 141: Lawrence, op. cit. p. 275 sq. Sidgwick, 'Morality of Strife,' in International Journal of Ethics, i. 13.]

[Footnote 142: Geffken, quoted by Jähns, op. cit. p. 352, n. 2.]

[Footnote 143: Jähns, op. cit. p. 307 sq.]

It is said that, though Christianity has not abolished war, it has nevertheless, even in war, asserted the principle that human life is sacred by prohibiting all needless destruction. The Canon, 'De treuga et pace,' laid down the rule that non-resisting persons should be spared;[144] and Franciscus a Victoria maintained not only that between Christian enemies those who made no resistance could not lawfully be slain,[145] but that even in war against the Turks it was wrong to kill children and women.[146] However, this doctrine of mercy was far in advance of the habits and general opinion of the time.[147] If the simple peasant was often spared, that was largely from motives of prudence,[148] or because the valiant knight considered him unworthy of the lance.[149] As late as the seventeenth century, Grotius was certainly not supported by the spirit of the age when he argued that, "if justice {370} do not require, at least mercy does, that we should not, except for weighty causes tending to the safety of many, undertake anything which may involve innocent persons in destruction";[150] or when he recommended enemies willing to surrender on fair conditions, or unconditionally, to be spared.[151] Afterwards, however, opinion changed rapidly. Pufendorf, in echoing the doctrine of Grotius,[152] spoke to a world which was already convinced; and in the eighteenth century Bynkershoek stands alone in giving to a belligerent unlimited rights of violence.[153] In reference to the assumption that this change of opinion is due to the influence of the Christian religion, it is instructive to note that Grotius, in support of his doctrine, appealed chiefly to pagan authorities, and that even savage peoples, without the aid of Christianity, have arrived at the rule which in war forbids the destruction of helpless persons and captives.

[Footnote 144: Gregory IX. Decretales, i. 34. 2.]

[Footnote 145: Franciscus a Victoria, op. cit. vi. 13, 35, 48; pp. 232, 241, 246 sq.]

[Footnote 146: Ibid. vi. 36, p. 241.]

[Footnote 147: Hall, Treatise on International Law, p. 395, n. 1.]

[Footnote 148: d'Argentré, L'histoire de Bretagne, p. 391.]

[Footnote 149: Mills, op. cit. p. 132.]

[Footnote 150: Grotius, op. cit. iii. 11. 8.]

[Footnote 151: Ibid. iii. 11. 14 sqq.]

[Footnote 152: Pufendorf, De jure naturæ et gentium, viii. 6. 8, p. 885.]

[Footnote 153: van Bynkershoek, Questiones juris publici, i. 1, p. 31: "Omnis enim vis in bello justa est." Hall, Treatise on International Law, p. 395, n. 1.]

The prevailing attitude towards war indicates the survival, in modern civilisation, of the old feeling that the life of a foreigner is not equally sacred with the life of a countryman. In times of peace this feeling is usually suppressed; it appears in no existing law on homicide, nor does it, generally, find expression in public opinion. It dares to disclose itself only in the form of national aggressiveness, under the flag of patriotism, or, perhaps, in the treatment of the aborigines of some distant country. The behaviour of European colonists towards coloured races only too often reminds us of the manner in which savages treat members of a foreign tribe. It was said that the frontier peasants at the Cape found nothing morally wrong in the razzias which they undertook against the Bushmans, without any provocation whatsoever, though they would consider it a heinous sin to do the same to their Christian fellow-men.[154] In Australia {371} there are instances reported of young colonists employing the Sunday in shooting blacks for the sake of sport. "The life of a native," says Mr. Lumholtz, "has but little value, particularly in the northern part of Australia, and once or twice colonists offered to shoot blacks for me so that I might get their skulls. On the borders of civilisation men would think as little of shooting a black man as a dog. The law imposes death by hanging as the penalty for murdering a black man, but people live so far apart in these uncivilised regions that a white man may in fact do what he pleases with the blacks. . . . In the courts the blacks are defenceless, for their testimony is not accepted. The jury is not likely to declare a white man guilty of murdering a black man. On the other hand if a white man happens to be killed by the blacks, a cry is heard throughout the whole colony."[155]

[Footnote 154: Waitz, Introduction to Anthropology, p. 314.]

[Footnote 155: Lumholtz, Among Cannibals, p. 346 sqq. See also Mathew, in Jour. & Proceed. Roy. Soc. N. S. Wales, xxiii. 390; Breton, Excursions in New South Wales, p. 200 sq.; Stokes, Discoveries in Australia, ii. 459 sqq.]

XVI. 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.]

XVII. THE KILLING OF PARENTS, SICK PERSONS, CHILDREN--FETICIDE

WE have found that among mankind at large there is a moral rule which forbids people to kill members of their own society. We shall now see that the stringency of this rule is subject to variations, depending on the special relationship in which persons stand to one another or on their social status, and that there are cases to which it does not apply at all.

Owing to the regard which children are expected to feel for their parents, parricide is considered the most aggravated form of murder. Nowhere have parents been more venerated by their children than among the nations of archaic culture, and nowhere has parricide been regarded with greater horror. In China it is punished with the most ignominious of all capital punishments, the so-called "cutting into small pieces"; and in some instances, when the crime has occurred in a district, in addition to all punishments inflicted on persons, the wall of the city where the deed was committed is pulled down in parts, or modified in shape, a round corner is substituted for a square one, or a gate removed to a new situation, or even closed up altogether.[1] In Corea the parricide is burned to death.[2] {384} Among the ancient Egyptians, we are told, he was sentenced to be lacerated with sharpened reeds, and after being thrown on thorns he was burned.[3] In Exodus we read of the "smiting" of parents, but parricide is not expressly mentioned, perhaps because the Hebrew legislator, like Solon at Athens,[4] did not think it possible that any one could be guilty of so unnatural a barbarity.[5] Herodotus states that the same notion was held by the ancient Persians, who said that no one ever yet killed his own father or mother, and that all cases of so-called parricide if carefully examined, would be found to have been committed by supposititious children or those born in adultery, it being beyond the bounds of probability that a true father should be murdered by his own son.[6] Plato says in his 'Laws':--"If a man could be slain more than once, most justly would he who in a fit of passion has slain father or mother undergo many deaths. How can he whom, alone of all men, even in defence of his life, and when about to suffer death at the hands of his parents, no law will allow to kill his father or his mother who are the authors of his being, and whom the legislator will command to endure any extremity rather than do this--how can he, I say, lawfully receive any other punishment?"[7] At Athens parricides were the only persons accused of murder who were not allowed the chance of escaping before sentence was passed, but were instantly arrested.[8] According to Roman Law, a committer of parricidium was not subjected to any of the regular modes of capital punishment, but for "the most execrable of crimes" was provided "the most strange of punishments." The criminal was sewn up in a leathern sack with a cur, a cock, a viper, and an ape, and, when cooped up in this fearful prison, was hurled into the sea, or into {385} some neighbouring river.[9] But by the term parricidium was not understood the murder of a parent only. According to the 'Lex Pompeia de parricidiis,' it included the murder of any of the following persons: an ascendant or descendant in any degree,[10] a brother or sister, an uncle or aunt, a cousin, a husband or wife, a bridegroom or bride, a father- or mother-in-law, a son- or daughter-in-law, a step-parent or step-child, a patron; and Mommsen suggests that in earlier times it had a still wider significance, being applied to intentional homicide in general.[11] But whilst the punishment just referred to was in other cases of parricidium replaced by banishment, it was, during the Empire at least, actually inflicted upon him who murdered an ascendant.[12]

[Footnote 1: Doolittle, Social Life of the Chinese, i. 338 sq. Smith, Chinese Characteristics, p. 229.]

[Footnote 2: Griffis, Corea, p. 236.]

[Footnote 3: Diodorus Siculus, Bibliotheca historica, i. 77. 8.]

[Footnote 4: Diogenes Laërtius, Solon, 10. Cicero, Pro S. Roscio Amerino, 25. Orosius, Historiæ, v. 16.]

[Footnote 5: Exodus, xxi. 15. Cf. Keil, Manual of Biblical Archæology, ii. 376.]

[Footnote 6: Herodotus, i. 137.]

[Footnote 7: Plato, Leges, ix. 869. Cf. ibid. ix. 873.]

[Footnote 8: Müller, Dissertations on the Eumenides of Æschylus, p. 91. Cf. Euripides, Orestes, 442 sqq.]

[Footnote 9: Institutiones, iv. 18. 6.]

[Footnote 10: Unless the descendant was in the potestas of him who committed the deed.]

[Footnote 11: Mommsen, Römisches Strafrecht, pp. 644, 645, 612 sq.]

[Footnote 12: Ibid. p. 645 sq.]

Whilst Christianity generally increased the sanctity of human life, it could add nothing to the horror with which parricide was regarded by the ancients. The Church punished it more severely than ordinary murder,[13] and so did, at least in Latin countries, the secular authorities.[14] In France, even to this day, a person convicted of parricide is "conduit sur le lieu de l'exécution en chemise, nu-pieds, et la tête couverte d'un voile noir";[15] and whilst meurtre is excusable if provoked by grave personal violence or by an attempt to break into a dwelling-house by day, parricide is never excusable under any circumstances.[16]

[Footnote 13: Gregory III., Judicia congrua p[oe]nitentibus, ch. 3 (Labbe-Mansi, Conciliorum collectio, xii. 289). P[oe]nitentiale Bigotianum, iv. 1 (Wasserschleben, Bussordnungen der abendländischen Kirche, p. 453). P[oe]nitent. Pseudo-Theodori, xxi. 18 (ibid. p. 588).]

[Footnote 14: Chauveau and Hélie, Théorie du Code Pénal, iii. 394 (France). Salvioli, Manuale di storia del diritto italiano, p. 570. In Scotland, also, parricide formerly had a place in the list of aggravated murders (Hume, Commentaries on the Law of Scotland, i. 459 sq.; for a sentence passed in 1688, see Pitcairn, Criminal Trials in Scotland, iii. 198); though nowadays it is penalised in the same way as other forms of murder (Erskine, Principles of the Law of Scotland, p. 559). There never was any special punishment for parricide in English law (Blackstone, Commentaries on the Laws of England, iv. 202. Stephen, History of the Criminal Law of England, iii. 95).]

[Footnote 15: Code Pénal, art. 13.]

[Footnote 16: Ibid. art. 321 sqq.]

{386} As regards the feelings with which ordinary parricide is looked upon by uncivilised peoples, direct information is almost entirely wanting. It is rarely mentioned at all, no doubt because it is very unusual.[17] Among the Kafirs of Natal, though murder is generally punished by a fine, death is inflicted on him who kills a parent.[18] Among the Ossetes a parricide draws upon himself a fearful punishment: he is shut up in his house with all his possessions, surrounded by the populace and burned alive.[19] To judge from the respect which, among the majority of uncivilised peoples, children are considered to owe to their parents, it seems very probable that the murder of a father or a mother is generally condemned by them as a particularly detestable form of homicide. But to this rule there is an important exception. According to a custom prevalent among various savages or barbarians, a parent who is worn out with age or disease is abandoned or killed.

[Footnote 17: Among the Omahas there have been a few cases of parricide caused by drunkenness (Dorsey, 'Omaha Sociology,' in Ann. Rep. Bur. Ethn. iii. 369). A Chukchi killed his father for charging him with cowardice and awkwardness (Sarytschew, 'Voyage of Discovery,' in Collection of Modern and Contemporary Voyages, vi. 51). In Lánda "it is no uncommon thing for a son to murder his father in order to step into his shoes" (Emin Pasha in Central Africa, p. 230). See also Wilson and Felkin, Uganda, i. 224.]

[Footnote 18: Shooter, Kafirs of Natal, p. 103.]

[Footnote 19: von Haxthausen, Transcaucasia, p. 415.]

Hearne states that, among the Northern Indians, one half at least of the aged persons of both sexes, when no longer capable of walking, are left alone to starve and perish of want.[20] Among the Californian Gallinomero, when the father can no longer feebly creep to the forest to gather his back-load of fuel or a basket of acorns, and is only a burden to his sons, "the poor old wretch is not infrequently thrown down on his back and securely held while a stick is placed across his throat, and two of them seat themselves on the ends of it until he ceases to breathe."[21] The custom of killing or abandoning old parents has been noticed among several other North {387} American tribes,[22] the natives of Brazil,[23] various South Sea Islanders,[24] a few Australian tribes,[25] and some peoples in Africa[26] and Asia.[27] According to ancient writers, it occurred formerly among many Asiatic[28] and European nations, including the Vedic people[29] and peoples of Teutonic extraction.[30] As late as the fifth or sixth century it was the custom among the Heruli for relatives to kindle a funeral pile for their old folks, although a stranger was employed to give the death wound.[31] And there is an old English tradition of "the Holy Mawle, which they fancy hung behind the church door, which when the father was seaventie, the sonne might fetch to knock his father in the head, as effete and of no more use."[32]

[Footnote 20: Hearne, Journey to the Northern Ocean, p. 346.]

[Footnote 21: Powers, Tribes of California, p. 178.]

[Footnote 22: Nansen, First Crossing of Greenland, ii. 331 (natives on the east coast of Greenland). Seemann, Voyage of "Herald," ii. 66 (Eastern Eskimo). Catlin, North American Indians, i. 217. Lafitau, M[oe]urs des sauvages ameriquains, i. 488 sq. Domenech, Seven Years' Residence in the Great Deserts of North America, ii. 325 (north-western tribes). Lewis and Clarke, Travels to the Source of the Missouri River, p. 442 (Dacotahs, Assiniboins, the hunting tribes on the Missouri).]

[Footnote 23: von Martius, Beiträge zur Ethnographie Amerika's, i. 126, 127, 393. von Eschwege, Brasilien, i. 231 sq. (Uerequenás). Among the Fuegians the practice in question seems to occur only accidentally (Bridges, in A Voice for South America, xiii. 206).]

[Footnote 24: Codrington, Melanesians, p. 347. Romilly, Western Pacific, p. 70 (Solomon Islanders). Brainne, Nouvelle-Calédonie, p. 255. Turner, Samoa, p. 335 sq. (Efatese). Seemann, Viti, p. 192 sq. Williams and Calvert, Fiji, pp. 116, 157 sq. Angas, Polynesia, p. 342 (natives of Kunaie).]

[Footnote 25: Eyre, Central Australia, ii. 382. Dawson, Australian Aborigines, p. 62 (tribes in Western Victoria).]

[Footnote 26: Arnot, Garenganze, p. 78 n. Andersson, Lake Ngami, p. 197 sq. (Damaras). Kolben, Present Stale of the Cape of Good Hope, i. 322, 334; Hahn, The Supreme Being of the Khoi-Khoi, p. 86 (Hottentots). Lepsius, Letters from Egypt, p. 202 sq. (Negro tribes to the south of Kordofan). Post, Afrikanische Jurisprudenz, i. 298 sq. Sartori, 'Die Sitte der Alten- und Krankentötung,' in Globus, lxvii. 108.]

[Footnote 27: Hooper, Ten Months among the Tents of the Tuski, p. 188 sq.; Dall, Alaska, p. 383 sqq. (Chukchi). Rockhill, Land of the Lamas, p. 81 (Kokonor Tibetans).]

[Footnote 28: Herodotus, i. 216 (Massagetae). Strabo, xi. 8. 6 (Massagetae); xi. 11. 3 (Bactrians); xi. 11. 8 (Caspians).]

[Footnote 29: Zimmer, Altindisches Leben, p. 328.]

[Footnote 30: Grimm, Deutsche Rechtsalterthümer, p. 486 sqq.]

[Footnote 31: Procopius, De bello gothico, ii. 14. Cf. Grimm, Kleinere Schriften, ii. 241.]

[Footnote 32: Thoms, Anecdotes and Traditions, p. 84.]

However cruel this custom may appear to be, something is certainly to be said in its favour. It is particularly common among nomadic hunting tribes, owing to the hardships of life and the inability of decrepit persons to keep up in the march. Mr. Morgan observes that, whilst {388} "among the roving tribes of the wilderness the old and helpless were frequently abandoned and, in some cases, hurried out of existence as an act of greater kindness than desertion," this practice was unknown among the Iroquois, who "resided in permanent villages, which afforded a refuge for the aged."[33] With reference to certain tribes of Western Victoria, Mr. Dawson remarks that the old people are a burden to the tribe, and, should any sudden attack be made by an enemy, the most liable to be captured, in which case they would probably be tortured and put to a lingering death.[34] Moreover, in times when the food-supply is insufficient to support all the members of a community, it is more reasonable that the old and useless should have to perish than the young and vigorous. Hahn was told that, among the Hottentots, aged parents were sometimes abandoned by very poor people who had not food enough to support them.[35] And among peoples who have reached a certain degree of wealth and comfort, the practice of killing the old folks, though no longer justified by necessity, may still go on, partly through survival of a custom inherited from harder times, partly from the humane intent of putting an end to lingering misery.[36] What appears to most of us as an atrocious practice may really be an act of kindness, and is commonly approved of, or even insisted upon, by the old people themselves. Speaking of the ancient Hottentot custom of famishing super-annuated parents in order to cause their death, Kolben remarks:--"If you represent to the Hottentots, as I have done very often, the inhumanity of this custom, they are astonished at the representation, as proceeding, in their opinion, from an inhumanity of your own. The custom, in their way of thinking, is supported by very pious and very filial considerations. 'Is it not a cruelty.' they ask you, 'to suffer either man or woman to languish any considerable {389} time under a heavy, motionless old age? Can you see a parent or a relative shaking and freezing under a cold, dreary, heavy, useless old age, and not think, in pity to them, of putting an end to their misery by putting, which is the only means, an end to their days?'"[37] When Mr. Hooper, hearing of an old Chukchi woman who was stabbed by her son, made some remarks on the frightful nature of the act, his native companions answered him:--"Why should not the old woman die? Aged and feeble, weary of life, and a burden to herself and others, she no longer desired to cumber the earth, and claimed of him who owned nearest relationship the friendly stroke which should let out her scanty remnant of existence."[38] Catlin tells us that, among the North American tribes who roamed about the prairies, the infirm old people themselves uniformly insisted upon being left behind, saying, "that they are old and of no further use--that they left their fathers in the same manner--that they wish to die, and their children must not mourn for them."[39] In Melanesia, says Dr. Codrington, when sick and aged people were buried alive, it is certain that "there was generally a kindness intended"; they used themselves to beg their friends to put them out of their misery, and it was even considered a disgrace to the family of an aged chief if he was not buried alive.[40] In Fiji, also, it was regarded as a sign of filial affection to put an aged parent to death. In his description of the Fijians Dr. Seemann observes, "In a country where food is abundant, clothing scarcely required, and property as a general rule in the possession of the whole family rather than that of its head, children need not wait for 'dead men's shoes' in order to become well off, and we may, therefore, quite believe them when declaring that it is with aching heart and at the repeated entreaties of their parents that they are induced to commit {390} what we justly consider a crime."[41] The ceremony is not without a touch of tragic grandeur:--"The son will kiss and weep over his aged father as he prepares him for the grave, and will exchange loving farewells with him as he heaps the earth lightly over him."[42] One reason why the old Fijian so eagerly desired to escape extreme infirmity was perhaps "the contempt which attaches to physical weakness among a nation of warriors, and the wrongs and insults which await those who are no longer able to protect themselves"; but another, and as it seems more potent, motive was the belief that persons enter upon the delights of the future life with the same faculties, mental and physical, as they possess at the hour of death, and that the spiritual life thus commences where the corporeal existence terminates. "With these views," "says Dr. Hale, "it is natural that they should desire to pass through this change before their mental and bodily powers are so enfeebled by age as to deprive them of their capacity for enjoyment."[43] Finally, we have to observe that in many cases the old people are not only killed, but eaten, by the nearest relatives, and that the motive, or at least, the sole motive, for this procedure is not hunger or desire for human flesh.[44] It is described as "an act of kindness" or as a "pious ceremony," as a method of preventing the body from being eaten up by worms or injured by enemies.[45] Considering that many cannibals have an aversion to the bodies of men who have died a natural death, it is not unreasonable to suppose that, in some instances, the old person is killed for the purpose of being eaten, and that this is done with a view to benefiting him.[46] But, on the other hand, the "pious ceremony," like so many other funeral customs which are supposed to comfort the dead, may be the survival of a practice which was originally intended to promote the selfish interests of the living.

[Footnote 33: Morgan, League of the Iroqnois, p. 171.]

[Footnote 34: Dawson, op. cit. p. 62.]

[Footnote 35: Hahn, op. cit. p. 86.]

[Footnote 36: Tylor, 'Primitive Society,' in Contemporary Review, xxi. 705. Idem, Anthropology, p. 410 sq.]

[Footnote 37: Kolben, op. cit. i. 322.]

[Footnote 38: Hooper, op. cit. p. 188 sq. Cf. Sarytschew, loc. cit. vi. 50; Dall, op. cit. p. 385; von Wrangell, Expedition to the Polar Sea, p. 122.]

[Footnote 39: Catlin, North American Indians, i. 217.]

[Footnote 40: Codrington, op. cit. p. 347. Turner, Samoa, p. 335 sq. (Efatese).]

[Footnote 41: Seemann, Viti, p. 193.]

[Footnote 42: Fison and Howitt, Kamilaroi and Kurnai, p. 175.]

[Footnote 43: Hale, op. cit. p. 65. Williams and Calvert, op. cit. p. 156. See also Erskine, Islands of the Western Pacific, p. 248.]

[Footnote 44: For instances, see Steinmetz, Endokannibalismus, passim.]

[Footnote 45: Ibid. pp. 3, 5, 17.]

[Footnote 46: Cf. Herodotus' statement regarding the Massagetae, i. 216.]

{391} Closely connected with the custom of doing away with decrepit parents is the habit, prevalent among certain peoples, of abandoning or killing persons suffering from some illness.

"The white man," Mr. Ward observes, "can never, as long as he may live in Africa, conquer his repugnance to the callous indifference to suffering that he meets with everywhere in Arab and Negro. The dying are left by the wayside to die. The weak drop on the caravan road, and the caravan passes on."[47] Among the Kafirs instances are not rare in which the dying are carried to the bush and left to perish, and among some of them epileptics are cast over a precipice, or tied to a tree to be devoured by hyenas.[48] The Hottentots abandon patients suffering from small-pox.[49] The southern Tanàla in Madagascar take a person who becomes insensible during an illness, to the spot in the forest where they throw their dead, and should the unfortunate creature so cast away revive and return to the village, they stone him outright to death.[50] In New Caledonia "il est rare qu'un malade rend naturellement le dernier soupir: quand il n'a plus sa connaissance, souvent même avant son agonie, on lui ferme la bouche et les narines pour l'étouffer, ou bien on le tiraille de tous côtés par les jambes et par les bras."[51] In Kandavu, of the Fiji Group, sick persons were often thrown into a cave, where the dead also were deposited.[52] In Efate, if a person in sickness showed signs of delirium, his grave was dug, and he was buried forthwith, to prevent the disease from spreading to other members of the family.[53] The Alfura "kill their sick when they have no hope of their recovery."[54] Dobrizhoffer says of the Patagonians, "Actuated by an irrational kind of pity, they bury the dying before they expire."[55] In cases of cholera or small-pox epidemics, North American Indians have been known to desert their villages, leaving all their sick behind, of whatever age or sex.[56] According to Dr. Nansen, it is not inconsistent with the moral code of the Greenlanders "to hasten the death of those {392} who are sick and in great suffering, or of those in delirium, of which they have a great horror."[57] Lieutenant Holm states that, in Eastern Greenland, when an individual is seriously ill, he consents, if his relatives request it, to end his sufferings by throwing himself into the sea; whereas it is rare that a sick person is put to death, except in cases of disordered intellect.[58] At Igloolik "a sick woman is frequently built or blocked up in a snow-hut, and not a soul goes near to look in and ascertain whether she be alive or dead."[59]

[Footnote 47: Ward, Five Years with the Congo Cannibals, p. 262.]

[Footnote 48: Shooter, Kafirs of Natal, p. 238 sq. Kidd, The Essential Kafir, p. 247.]

[Footnote 49: Le Vaillant, Travels into the Interior Parts of Africa, ii. 112.]

[Footnote 50: Sibree, The Great African Island, p. 291.]

[Footnote 51: Brainne, op. cit. p. 255.]

[Footnote 52: Williams and Calvert, op. cit. p. 159.]

[Footnote 53: Turner, Samoa, p. 336.]

[Footnote 54: Pfeiffer, A Lady's Second Journey round the World, i. 387.]

[Footnote 55: Dobrizhoffer, Account of the Abipones, ii. 262.]

[Footnote 56: Domenech, op. cit. ii. 326.]

[Footnote 57: Nansen, Eskimo Life, p. 163.]

[Footnote 58: 'East Greenland Eskimo,' in Science, vii. 172.]

[Footnote 59: Lyon, Private Journal, p. 357. For other instances, see Sartori, in Globus, lxvii. nr. 7 sq.; von Martius, op. cit. i. 126, 127, 393 (Brazilian tribes); Steller, Beschreibung von dem Lande Kamtschatka, p. 354; Dawson, op. cit. p. 61, quoted supra, p. 271.]

These and similar facts are largely explained by the pitiful condition of the invalid, the hardships of a wandering life, and the superstitious notions of ignorant men. In some cases the practice of killing a dying person seems to be connected with a belief that the death-blow will save his soul.[60] In 1812, a leper was burnt alive at Katwa, near Calcutta, by his mother and sister, who believed that by their doing so he would gain a pure body in the next birth.[61] By carrying the patient away before he dies, the survivors escape the supposed danger of touching a corpse.[62] In the poorer provinces of the kingdom of Kandy, when a sick person was despaired of, the fear of becoming defiled, or of being obliged to change their habitation, frequently induced those about him to take him into a wood, in spite of his cries and groans, and to leave him there, perhaps in the agonies of death.[63] But the most common motive for abandoning or destroying sick people seems to be fear of infection or of demoniacal possession, which is regarded as the cause of various diseases.[64] Among the North American Indians, we are told, "the custom of abandoning the infirm or sick arose {393} from a superstitious fear of the evil spirits which were supposed to have taken possession of them."[65] In Tahiti, says Ellis, "every disease was supposed to be the effect of direct supernatural agency, and to be inflicted by the gods for some crime against the tabu, of which the sufferers had been guilty, or in consequence of some offering made by an enemy to procure their destruction. Hence, it is probable, in a great measure, resulted their neglect and cruel treatment of their sick."[66]

[Footnote 60: Sartori, loc. cit. p. 127.]

[Footnote 61: Crooke, Popular Religion and Folk-Lore of Northern India, ii. 169.]

[Footnote 62: Shooter, op. cit. 239 (Kafirs of Natal). Kidd, The Essential Kafir, p. 247.]

[Footnote 63: Joinville, 'Religion and Manners of the People of Ceylon,' in Asiatick Researches, vii. 437 sq.]

[Footnote 64: See Sartori, loc. cit. p. 110 sq.; Lippert, Kulturgeschichte der Menschheit, i. 110; ii. 411.]

[Footnote 65: Dorman, Origin of Primitive Superstitions, p. 392.]

[Footnote 66: Ellis, Polynesian Researches, i. 395.]

* * * * *

Whilst the regard which children owe their parents makes parricide an aggravated form of murder, the paternal power sometimes implies that, under certain circumstances, the father is allowed to kill even his grown-up child. Though the Chinese Penal Code provides a slight punishment for parents who punish disobedient children with death,[67] the crime is practically ignored by the authorities.[68] Among the Hebrews, in early times, a father might punish his incontinent daughter with death.[69] The Roman house-father had jus vitæ necisque--the power of life and death--over his children. However, this power did not imply that he could kill them without a just cause;[70] already in pagan times a father who killed his son "latronis magis quam patris jure," was punished as a murderer.[71] As Dean Milman observes, long before Christianity entered into Roman legislation, "the life of a child was as sacred as that of the parent; and Constantine, when he branded the murder of a son with the {394} name of parricide, hardly advanced upon the dominant feeling.[72] Nor is there any reason to suppose that, among savages, the father possesses an absolute right of life and death over his children. On the contrary, among many of the lower races the existence of such a right is expressly denied.[73]

[Footnote 67: Ta Tsing Leu Lee, sec. cccxix. p. 347:--"If a father, mother, paternal grandfather or grandmother, chastises a disobedient child or grandchild in a severe and uncustomary manner, so that he or she dies, the party so offending shall be punished with 100 blows.--When any of the aforesaid relations are guilty of killing such disobedient child or grandchild designedly, the punishment shall be extended to 60 blows and one year's banishment."]

[Footnote 68: Douglas, Society in China, p. 78 sq.]

[Footnote 69: Genesis, xxxviii. 24.]

[Footnote 70: Mittermaier, 'Beyträge zur Lehre vom Verbrechen des Kindesmordes,' in Neues Archiv des Criminalrechts, vii. 4. Walter, Geschichte des Römischen Rechts, § 537, vol. ii. 147. von Jhering, Geist des römischen Rechts, ii. 220. Mommsen, Römisches Strafrecht, p. 619.]

[Footnote 71: Digesta, xlviii. 9. 5. Orosius, Historiæ, v. 16. Mommsen, Römisches Strafrecht, p. 618.]

[Footnote 72: Milman, History of Latin Christianity, ii. 25.]

[Footnote 73: Lang, in Steinmetz, _Rechtsverhältnisse von eingeborenen Völkern in Afrika und Ozeanien_, p. 224 (Washambala). Desoignies, ibid. p. 271 (Msalala). Marx, ibid. p. 349 (Amahlubi). Kohler, 'Recht der Hottentotten,' in Zeitschr. f. vergl. Rechtswiss. xv. 347. Post, Afrikanische Jurisprudenz, i. 52 sq.]

But whilst a father only in rare cases, and then merely as a measure of justice, is allowed to put to death his grown-up child, he very frequently has the right of destroying a new-born infant. Nay, in many instances infanticide is not only permitted, but enjoined by custom.

Among a great number of uncivilised peoples it is usual to kill an infant if it is a bastard,[74] or if its mother dies,[75] or if it is deformed or diseased,[76] or if there is anything unusual or uncanny about it, or if it for some reason or other is regarded as an unlucky child. In some parts of {395} Africa, for instance, a child who is born with teeth,[77] or who cuts the upper front teeth before the under,[78] or whose teeth present some other kind of irregularity,[79] is put to death. Among the natives of the Bondei country a child who is born head first is considered an unlucky child, and is strangled in consequence.[80] The Kamchadales used to destroy children who were born in very stormy weather;[81] and in Madagascar infants born in March or April, or in the last week of a month, or on a Wednesday or a Friday, were exposed or drowned or buried alive.[82] Among various savages it is the custom that, if a woman gives birth to twins, one or both of them are destroyed.[83] They are regarded sometimes as an indication of unfaithfulness on the part of the mother--in accordance with the notion that one man cannot be the father of two children at the same time[84]--sometimes as an evil portent or as the result of the wrath of a fetish.[85] Miss Kingsley observes, "There is always the sense of there being something uncanny regarding twins in West Africa, and in those tribes where they are not killed they are regarded {396} as requiring great care to prevent them from dying on their own account."[86] The Kafirs believe that unless the father places a lump of earth in the mouth of one of the babies he will lose his strength.[87]

[Footnote 74: Turner, Samoa, p. 304 (Savage Islanders). Elton, in Jour. Anthr. Inst. xvii. 93 (some Solomon Islanders). Munzinger, Ostafrikanische Studien, p. 145 (Beduan). Dyveyrier, Exploration du Sahara, p. 428 (Touareg). Burton, Sindh, p. 244 (Belochis). Haberland, 'Der Kindermord als Volkssitte,' in Globus, xxxvii. 58. The natives of Australia often kill half-caste children (Roth, Ethnological Studies among the North-West-Central Queensland Aborigines, p. 184. Curr, Recollections of Squatting in Victoria, p. 252. Haberland, loc. cit. p. 58).]

[Footnote 75: Collins, English Colony in New South Wales, i. 607 sq. (aborigines of Port Jackson). Dale, 'Natives inhabiting the Bondei Country,' in Jour. Anthr. Inst. xxv. 182. Comte de Cardi, 'Ju-Ju Laws and Customs in the Niger Delta,' ibid. xxix. 58. Nansen, First Crossing of Greenland, ii. 330; Holm, 'Ethnologisk Skizze af Angmagsalikerne,' in Meddelelser om Grönland, x. 91 (Greenlanders). Haberland, loc. cit. p. 28 sq. Ploss, Das Kind, ii. 252, 254, 258 sq. Chamberlain, Child and Childhood in Folk-Thought, p. 110 sq.]

[Footnote 76: Dawson, op. cit. p. 39 (tribes of Western Victoria). Kicherer, quoted by Moffat, Missionary Labours and Scenes in Southern Africa, p. 15 (Bushmans). Shooter, Kafirs of Natal, p. 89. Chapman, Travels in the Interior of South Africa, ii. 285 (Banamjua). Reade, Savage Africa, p. 244 (Equatorial Africans). New, Life, Wanderings, and Labours in Eastern Africa, p. 118; Krapf, Travels, p. 193 sq. (Wanika). Georgi, Russia, iii. 134 (Kamchadales). Sarytschew, loc. cit. vi. 50; von Wrangell, op. cit. p. 122 (Chukchi). Simpson, quoted by Murdoch, 'Point Barrow Expedition,' in Ann. Rep. Bur. Ethn. ix. 417 (Eskimo). Powers, Tribes of California, p. 382 (Yokuts). Guinnard, Three Years' Slavery among the Patagonians, p. 144. Haberland, loc. cit. p. 58 sq. Ploss, Das Kind, ii. 252, 254, 255, 258.]

[Footnote 77: Ploss, Das Kind, ii. 257, 259.]

[Footnote 78: Livingstone, Missionary Travels, p. 577. Kingsley, Travels in West Africa, p. 472. Allen and Thomson, Expedition to the River Niger, i. 243 sq. Mockler-Ferryman, British Nigeria, p. 286 (Ibos).]

[Footnote 79: Baumann, Usambara, pp. 131 (Wabondei), 237 (Wapare).]

[Footnote 80: Dale, in Jour. Anthr. Inst. xxv. 183.]

[Footnote 81: Krasheninnikoff, History of Kamschatka, p. 217.]

[Footnote 82: Ploss, Das Kind, ii. 257. Cf. Little, Madagascar, p. 60.]

[Footnote 83: Dawson, op. cit. p. 39 (tribes of Western Victoria). Spencer and Gillen, Native Tribes of Central Australia, p. 52. Idem, Northern Tribes of Central Australia, p. 609. Romilly, Western Pacific, p. 70 (Solomon Islanders). Kolben, op. cit. i. 144 (Hottentots). Shooter, op. cit. p. 88 (Kafirs of Natal). Livingstone, Missionary Travels, p. 577. Decle, Three Years in Savage Africa, p. 160 (Matabele). Chapman, op. cit. ii. 285 (Banamjua). Baumann, Usambara, p. 131 (Wabondei). New, op. cit. pp. 118 (Wanika, formerly), 458 (Wadshagga). Burton, Two Trips to Gorilla Land, i. 84. Kingsley, Travels in West Africa, p. 472 sqq. Schoen and Crowther, Journals, p. 49 (Ibos on the Niger). Comte de Cardi, in Jour. Anthr. Inst. xxix. 57 sq. (Negroes of the Niger Delta). Nyendael, quoted by Ling Roth, Great Benin, p. 35 (people of Arebo). Ploss, Das Kind, ii. 267 sq. (African peoples), 274 (some South American Indians). Schneider, Die Naturvölker, i. 305 sq. (some South American Indians). Krasheninnikoff, op. cit. p. 217 (Kamchadales).]

[Footnote 84: Waitz, Anthropologie der Naturvölker, iii. 394, 480 (South American Indians). Dapper says (Africa, p. 473) that no twins are ever found in the country of Benin, because the people considered it a great dishonour to give birth to twins.]

[Footnote 85: Allen and Thomson, op. cit. i. 243. Baumann, Usambara, p. 131 (Wabondei).]

[Footnote 86: Kingsley, Travels in West Africa, p. 473, According to Nyendael, twin-births are, on the contrary, esteemed good omens in most parts of the Benin territory (Ling Roth, Great Benin, p. 35).]

[Footnote 87: Kidd, The Essential Kafir, p. 202.]

In the instances just referred to, the infant is killed either because, after the death of its mother, there is nobody to nurse it, or on account of the fault of its parents, especially the mother, or because it is held desirable that the sickly or defective should die at once, or out of superstitious fear. However, among many of the lower races, infanticide is not restricted to similar more or less exceptional cases, but is practised on a much larger scale. Custom often decides how many children are to be reared in each family, and not infrequently the majority of infants are destroyed.

Infanticide is common among various tribes in North and South America.[88] Dobrizhoffer says that it was a rare exception among the Abipones to find a woman who had brought up two or three sons, whilst some mothers killed all the children they bore, "no one either preventing or avenging these murders."[89] According to Azara, the Guanas buried alive the majority of their female infants, and the Mbayas suffered only one boy or one girl in a family to live;[90] but the correctness of his statements has been questioned.[91] On the other hand there can be no doubt as to the extreme prevalence of infanticide in the islands of the South Seas. In some of the principal groups of Polynesia it was practised publicly and systematically, without compunction, to an extent almost incredible. During the whole period of his residence in the Society Islands, Ellis does {397} not recollect having met with a single pagan woman who had not imbrued her hands in the blood of her offspring, and he thinks that there, as also in the Sandwich Islands, two-thirds of the children were destroyed by their parents.[92] "No sense of irresolution or horror," he says, "appeared to exist in the bosoms of those parents who deliberately resolved on the deed before the child was born. They often visited the dwellings of the foreigners, and spoke with perfect complacency of their cruel purpose"; and when the missionaries tried to dissuade them from executing their intention, the only answer generally received was that it was the custom of the country.[93] The Line Islanders allowed only four children of a family to get the chance of life; the mother had a right to rear one child, whereas it rested with the husband to decide whether any more should live.[94] In Radack every mother was permitted to bring up three children, but the fourth and every succeeding one she was obliged to bury alive herself, unless she was the wife of a chief.[95] In Vaitupu, of the Ellice Archipelago, also, "infanticide was ordered by law," and only two children were allowed to a family.[96] In New Zealand and the Marquesas infanticide, though not so general, was yet of frequent occurrence and not regarded as a crime.[97] In most of the Melanesian groups it was very common.[98] In the Solomon Islands there still seem to be several places where it is the custom to kill nearly all children soon after they are born, and to buy other children from foreign tribes, good care being taken not to buy them too young.[99] The practice of infanticide occurred at least occasionally in Tasmania,[100] and, as it seems, almost universally in Australia. Mr. Curr supposes that the Australian woman, as a rule, reared only two boys and one girl, the rest of her children being destroyed.[101] "In the laws known to her," says Mr. Brough Smyth, "infanticide is a necessary practice, and one which, if disregarded, would, under certain circumstances, be disapproved {398} of; and the disapproval would be marked by punishment."[102] Mr. Taplin was assured that, among the Narrinyeri, more than one-half of the children born fell victims to this custom;[103] and in the Dieyerie tribe hardly an old woman, if questioned, but will admit of having destroyed from two to four of her offspring.[104]

[Footnote 88: Bessels, quoted by Murdoch, 'Point Barrow Expedition,' in Ann. Rep. Bur. Ethn. ix. 417 (Eskimo of Smith Sound). Nelson, 'Eskimo about Bering Strait,' ibid. xviii. 289. Gibbs, 'Tribes of Western Washington and Northwestern Oregon,' in Contributions to North American Ethnology, i. 198. Powers, op. cit. pp. 177, 184 (Californian tribes). Yarrow, in Ann. Rep. Bur. Ethn. i. 99 (Pimas of Arizona), Hawtrey, in Jour. Anthr. Inst. xxxi. 295 (Lengua Indians of the Paraguayan Chaco).]

[Footnote 89: Dobrizhoffer, op. cit. ii. 98. For another account of the infanticides of the Abipones, see infra, p. 400.]

[Footnote 90: Azara, Voyages dans l'Amérique méridionale, ii. 93, 115.]

[Footnote 91: Wied-Neuwied, Reise nach Brasilien, ii. 39.]

[Footnote 92: Ellis, Polynesian Researches, i. 252. Idem, Tour through Hawaii, p. 325.]

[Footnote 93: Idem, Polynesian Researches, i. 250.]

[Footnote 94: Tutuila, 'Line Islanders,' in Jour. Polynesian Society, i. 267.]

[Footnote 95: von Kotzebue, Voyage of Discovery, iii. 173.]

[Footnote 96: Turner, Samoa, p. 284.]

[Footnote 97: Hale, U.S. Exploring Expedition. Vol. VI. Ethnography and Philology, p. 15.]

[Footnote 98: Codrington, Melanesians, p. 229. Turner, Samoa, p. 333 (Efatese). Gill, Life in the Southern Isles, p. 213 (islands of Torres Straits). Atkinson, in Folk-Lore, xiv. 248 (New Caledonians).]

[Footnote 99: Romilly, Western Pacific, p. 68 sq. Cf. Guppy, Solomon Islands, p. 42.]

[Footnote 100: Ling Roth, Aborigines of Tasmania, p. 167 sq. Bonwick, Daily Life and Origin of the Tasmanians, p. 85. Brough Smyth, Aborigines of Victoria, ii. 386.]

[Footnote 101: Curr, The Australian Race, i. 70.]

[Footnote 102: Brough Smyth, op. cit. i. p. xxi. Cf. Oberländer, 'Die Eingeborenen der Kolonie Victoria,' in Globus, iv. 279.]

[Footnote 103: Taplin, 'Narrinyeri,' in Woods, Native Tribes of South Australia, p. 13.]

[Footnote 104: Gason, 'Manners and Customs of the Dieyerie Tribe,' ibid. p. 259.]

Among the Todas of India, up to the period of Mr. Sullivan's visit to their hills, about the year 1820, only one female child was allowed to live in each family.[105] With reference to the Kandhs, or Khonds, Macpherson observes, "The practice of female infanticide is, I believe, not wholly unknown amongst any portion of the Khond people, while it exists in some of the tribes of the sect of Boora to such an extent, that no female infant is spared, except when a woman's first child is a female, and that villages containing a hundred houses may be seen without a female child."[106]

[Footnote 105: Metz, Tribes inhabiting the Neilgherry Hills, p. 16.]

[Footnote 106: Macpherson, Memorials of Service in India, p. 132.]

It is said that among the Guanches of the Canary Islands, in ancient times, all children, except the first-born, were killed.[107] The people of Madagascar frequently practised infanticide; but Ellis says that they were much less addicted to it than the South Sea Islanders, a numerous offspring being generally a source of much satisfaction.[108] According to Kolben, infanticide was common among the Hottentots;[109] whereas Sparrman only states that "the Hottentots are accustomed to inter, in case of the mother's death, children at the breast alive,"[110] and Le Vaillant altogether denies the existence of customary infanticide among them.[111] Among the Swahili, according to Baumann, infanticides are very common and hardly disapproved of.[112] But the peoples of the African continent are not generally addicted to infanticide, except in such special cases as have already come under our notice.

[Footnote 107: Ploss, Das Kind, ii. 259 sq.]

[Footnote 108: Little, Madagascar, p. 60. Ellis, History of Madagascar, i. 155, 160.]

[Footnote 109: Kolben, op. cit. i. 333.]

[Footnote 110: Sparrman, Voyage to the Cape of Good Hope, i. 358 sq.]

[Footnote 111: Le Vaillant, op. cit. ii. 58 sqq.]

[Footnote 112: Baumann, Usambara, p. 42.]

The custom of infanticide, in its extensive form, has been attributed to various motives. Among some peoples mothers are said to kill their new-born infants on account {399} of the trouble of rearing them,[113] or the consequent loss of beauty.[114] Another cause is the long suckling time, generally lasting, among savages, for two, three, four years, or even more, owing to want of soft food and animal milk.[115] When, as is very commonly the case, the husband must not cohabit with his wife during the whole of this period,[116] he is naturally inclined to form other connections, and this seems in some instances to induce the mother to destroy her child.[117] In another respect, also, the long suckling-time is an inducement to infanticide; among certain Australian tribes an infant is killed immediately on birth "when the mother is, or thinks she is, unable to rear it owing to there being a young child whom she is still feeding."[118] Among the Pimas of Arizona, again, infanticide is said to be connected with the custom of destroying all the property of the husband when he dies. "The women of the tribe, well aware that they will be poor should their husbands die, and that then they will have to provide for their children by their own exertions, do not care to have many children, and infanticide, both before and after birth, prevails to a great extent. This is not considered a crime."[119] But there can be little doubt that the wholesale infanticide of many of the lower races is in the main due to the hardships of savage life. The helpless infant may be a great burden to the parents both in times of peace and in times of war. It may prevent the mother from following her husband about on his wanderings in search of food, or otherwise encumber her in her work.[120] Mr. Curr states of the Bangerang tribe of Victoria, with whom he was intimate for ten years, that their habit of killing nearly half {400} of the children born resulted "principally from the difficulty, if not the impossibility, of transporting several children of tender age from place to place on their frequent marches."[121] Concerning the Abipones, Charlevoix observes:--"They seldom rear but one child of each sex, murdering the rest as fast as they come into the world, till the eldest are strong enough to walk alone. They think to justify this cruelty by saying that, as they are almost constantly travelling from one place to another, it is impossible for them to take care of more infants than two at a time; one to be carried by the father, and the other by the mother."[122] Among the Lenguas of the Paraguayan Chaco an interval of seven or eight years is always observable between children of the same family, infants born in this interval being immediately killed. The reasons for this practice, says Mr. Hawtrey, are obvious. "The woman has the hard work of carrying food from garden and field, and all the transport to do; the Lenguas are a nomadic race, and their frequent moves often entail journeys of from ten to twenty miles a day. . . . Travelling with natives under these circumstances, one is forced to the conclusion that it would be impossible for a mother to have more than one young child to carry and to care for."[123] Moreover, a little forethought tells the parents that their child before long will become a consumer of provisions perhaps already too scanty for the family. Savages often suffer greatly from want of food, and may have to choose between destroying their offspring or famishing themselves. Hence they often have recourse to infanticide as a means of saving their lives; indeed, among several tribes, in case of famine, children are not only killed, but eaten.[124] Urgent want is frequently represented by our authorities as the main cause of infanticide;[125] and {401} their statements are corroborated by the conspicuous prevalence of this custom among poor tribes and in islands whose inhabitants are confined to a narrow territory with limited resources.

[Footnote 113: Ellis, Polynesian Researches, i. 256 (Tahitians). Idem, Tour through Hawaii, p. 327. Polack, Manners and Customs of the New Zealanders, ii. 92. Gason, loc. cit. p. 258 (Dieyerie tribe).]

[Footnote 114: Williams, Missionary Enterprises, p. 565 (Tahitians).]

[Footnote 115: See Westermarck, History of Human Marriage, p. 484.]

[Footnote 116: Ibid. p. 483.]

[Footnote 117: Schneider, Die Naturvölker, i. 297, 307.]

[Footnote 118: Spencer and Gillen, Native Tribes of Central Australia, pp. 51, 264. Idem, Northern Tribes of Central Australia, p. 608. Oberländer, loc. cit. p. 279.]

[Footnote 119: Yarrow, loc. cit. p. 99.]

[Footnote 120: Turner, Nineteen Years in Polynesia, p. 394 (people of Vaté, New Hebrides). Polack, op. cit. ii. 93 (Maoris).]

[Footnote 121: Curr, Squatting in Victoria, p. 252. Oberländer, loc. cit. p. 279. Cf. Fison and Howitt, Kamilaroi and Kurnai, p. 259; Fraser, Aborigines of New South Wales, p. 5.]

[Footnote 122: Charlevoix, History of Paraguay, i. 405.]

[Footnote 123: Hawtrey, in Jour. Anthr. Inst. xxxi. 295.]

[Footnote 124: See Steinmetz, Endokannibalismus, pp. 8, 13, 14, 17.]

[Footnote 125: Nansen, First Crossing of Greenland, ii. 330. Nelson, in Ann. Rep. Bur. Ethn. xviii. 289 (Eskimo about Behring Strait). Brough Smyth, op. cit. i. 53; ii. 386 (aboriginal tribes of Australia and Tasmania), von Kotzebue, op. cit. iii. 173 (natives of Radack). Tutuila, in. Jour. Polynesian Soc. i. 263 (Line Islanders). Campbell, Wild Tribes of Khondistan, p. 140 (Kandbs of Sooradah). Marshall, A Phrenologist amongst the Todas, p. 194. Kolben, op. cit. i. 144 (Hottentots). See also Haberland, loc. cit. p. 26; Dimitroff, Die Geringschätzung des menschlichen Lebens und ihre Ursachen bei den Naturvölkern, p. 162 sqq.; Sutherland, Origin and Growth of the Moral Instinct, i. 115 sqq.]

In the chapter dealing with human sacrifice we shall notice that infanticide is in some cases practised as a sacrificial rite. In other cases infants are killed for medicinal purposes, without being sacrificed to any divine being.[126] Thus in the Luritcha tribe, in Central Australia, "it is not an infrequent custom, when a child is in weak health, to kill a younger and healthy one and then to feed the weakling on its flesh, the idea being that this will give to the weak child the strength of the stronger one."[127] A curious motive for female infanticide is also worth mentioning. That the victims of this practice are most commonly, among several peoples almost exclusively, females,[128] is generally due to the greater usefulness of the men both as food-providers and in war. But the Hakka, a Mongolian tribe in China, often put their girls to a cruel death with a view to inducing thereby the soul to appear the next time in the shape of a boy.[129]

[Footnote 126: See infra, p. 458 sq.]

[Footnote 127: Spencer and Gillen, Native Tribes of Central Australia, p. 475. Cf. ibid. p. 52.]

[Footnote 128: Cf. Haberland, loc. cit. p. 56 sqq.]

[Footnote 129: Hubrig, quoted by Ploss, Das Kind, ii. 263.]

Thus various considerations have led men to destroy their own offspring. Under certain circumstances the advantages, real or imaginary, assumed to result from the deed have been sufficiently great to silence the voice of parental love, which, as will be seen, is to be found even in the bosom of a savage father. The resistance offered by this instinct would be so much the less as the child is killed immediately after its birth, at a period of its life {402} when the father's affection for it is as yet only dawning Even where, at first, infanticide was an exception, practised by a few members of the tribe, any interference from the side of the community may have been prevented by the notion that a person possesses proprietary rights over his offspring; and, once become habitual, infanticide easily grew into a regular custom. In cases where it was found useful to the tribe, it would be enforced as a public duty; and even where there no longer was any need for it, owing to changed conditions of life, the force of habit might still keep the old custom alive.

Though infanticide is thus regarded as allowable, or even obligatory, among many of the lower races, we must not suppose that they universally look upon it in this light. Mr. McLennan grossly exaggerated its prevalence when he asserted that female infanticide is "common among savages everywhere."[130] Among a great number of them it is said to be unheard of or almost so,[131] and to these belong peoples of so low a type as the Andaman Islanders,[132] the Botocudos,[133] and certain Californian tribes.[134] The Veddahs of Ceylon have never been known to practise it.[135] Among the Yahgans of Tierra del Fuego, Mr. Bridges informs me, it occurred only occasionally, and then it was almost always the deed of the mother, who acted from "jealousy, or hatred of her husband, or because of desertion and wretchedness."[136] Mr. Fison, who has lived for a long time among uncivilised races, thinks it will be found that infanticide is far less common among the lower savages than it is among the more advanced tribes.[137] Considering {403} further that the custom of infanticide, being opposed to the instinct of parental love, presupposes a certain amount of reasoning or forethought, it seems probable that, where it occurs, it is not a survival of earliest savagery, but has grown up under specific conditions in later stages of development.[138] It is, for instance, very generally asserted that certain Indians in California never committed infanticide before the arrival of the whites;[139] and Ellis thinks there is every reason to suppose that this custom was practised less extensively by the Polynesians during the early periods of their history than it was afterwards.[140]

[Footnote 130: McLennan, Studies in Ancient History, p. 75.]

[Footnote 131: See Westermarck, History of Human Marriage, p. 312 sq.; and, besides the authorities there referred to, Dorsey, 'Omaha Sociology,' in Ann. Rep. Bur. Ethn. iii. 369; Kirke, Twenty-five Years in British Guiana, p. 160; Chalmers, Pioneering in New Guinea, p. 163; Hodgson, Miscellaneous Essays, p. 123 (Bódo and Dhimáls); Baumann, Durch Massailand zur Nilquelle, p. 161 (Masai).]

[Footnote 132: Man, in Jour. Anthr. Inst. xii. 329.]

[Footnote 133: Wied-Neuwied, op. cit. ii. 39. Keane, in Jour. Anthr. Inst. xiii. 206.]

[Footnote 134: Powers, op. cit. pp. 192, 271, 382.]

[Footnote 135: Sarasin, Ergebnisse naturwissenschaftlicher Forschungen auf Ceylon, iii. 469, 539.]

[Footnote 136: Bridges, in a letter dated Downeast, Tierra del Fuego, August 28th, 1888.]

[Footnote 137: Fison and Howitt, Kamilaroi and Kurnai, p. 134 sqq. Cf. Farrer, Primitive Manners and Customs, p. 224; Sutherland, op. cit. i. 114 sq.]

[Footnote 138: Cf. Darwin, Descent of Man, p. 594.]

[Footnote 139: Powers, op. cit. p. 207. Cf. ibid. p. 183.]

[Footnote 140: Ellis, Polynesian Researches, i. 249.]

Where infanticide is not sanctioned by custom, the occasional commission of it has a tendency to call forth disapproval or excite horror. The Blackfeet are said to believe that women who have been guilty of this crime will never reach the happy mountain after death, but are compelled to hover round the seats of their crimes, with branches of trees tied to their legs.[141] Speaking of another North American tribe, the Potawatomis, Keating observes:--"In a few instances, it is said that children born deformed have been destroyed by their mothers, but these instances are rare, and whenever discovered, uniformly bring them into disrepute, and are not unfrequently punished by some of the near relations. Independently of these cases, which are but rare, a few instances of infanticide, by single women, in order to conceal intrigue, have been heard of; but they are always treated with abhorrence."[142] Among the Omahas "parents had no right to put their children to death."[143] The Aleuts believed that a child-murder would bring misfortune on the whole village.[144] The Brazilian Macusis[145] and Botocudos[146] look upon the deed with horror. At Ulea, {404} of the Caroline Islands, "the prince would have the unnatural mother punished with death."[147] So, too, Herr Valdau tells us of a Bakundu woman who, accused of infanticide, was condemned to death.[148] In Ashanti a man is punished for the murder of his child.[149] Among the Gaika tribe, of the Kafirs, the killing of a child after birth is punishable as murder, the fine going to the chief.[150] Nay, even peoples among whom infanticide is habitual seem now and then to have a feeling that the act is not quite correct. Mr. Brough Smyth asserts that the Australian Black is himself ashamed of it;[151] and Mr. Curr has no doubt that he feels, in the commencement of his career at least, that infanticide is wrong, as also that its committal brings remorse.[152]

[Footnote 141: Richardson, in Franklin, Journey to the Shores of the Polar Sea, p. 77.]

[Footnote 142: Keating, op. cit. i. 99.]

[Footnote 143: Dorsey, in Ann. Rep. Bur. Ethn. iii. 268.]

[Footnote 144: Dall, op. cit. p. 399.]

[Footnote 145: Waitz, op. cit. iii. 391.]

[Footnote 146: Wied-Neuwied, op. cit. ii. 39.]

[Footnote 147: von Kotzebue, op. cit. iii. 211.]

[Footnote 148: Valdau, in Ymer, v. 280.]

[Footnote 149: Bowdich, Mission from Cape Coast Castle to Ashantee, p. 258.]

[Footnote 150: Maclean, Compendium of Kafir Laws and Customs, p. 111.]

[Footnote 151: Brough Smyth, op. cit. i. 54.]

[Footnote 152: Curr, The Australian Race, i. 100.]

The custom of infanticide in most cases requires that the child should be killed immediately or soon after its birth. Among certain North American Indians "the right of destroying a child lasted only till it was a month old," after which time the feeling of the tribe was against its death.[153] Ellis says of the Society Islanders:--"The horrid act, if not committed at the time the infant entered the world, was not perpetrated at any subsequent period . . . . If the little stranger was, from irresolution, the mingled emotions that struggled for mastery in its mother's bosom, or any other cause, suffered to live ten minutes or half an hour, it was safe; instead of a monster's grasp, it received a mother's caress and a mother's smile, and was afterwards nursed with solicitude and tenderness."[154] Almost the same is said of other South Sea Islanders[155] and of tribes inhabiting the Australian continent.[156] That the custom of infanticide is generally {405} restricted to the destruction of new-born babies also appears from various statements as to the parental love of those peoples who are addicted to this practice.[157] In Fiji "such children as are allowed to live are treated with a foolish fondness."[158] Among the Narrinyeri, "only let it be determined that an infant's life shall be saved, and there are no bounds to the fondness and indulgence with which it is treated";[159] and with reference to other Australian tribes we are told that it is brought up with greater care than generally falls to the lot of children belonging to the poorer classes in Europe.[160] Among the Indians of the Pampas and other Indians of that neighbourhood, who abandon deformed or sickly-looking children to the wild dogs and birds of prey, an infant becomes, from the moment it is considered worthy to live, "the object of the whole love of its parents, who, if necessary, will submit themselves to the greatest privations to satisfy its least wants or exactions."[161] In Madagascar, according to Ellis, "nothing can exceed the affection with which the infant is treated by its parents and other members of the family; the indulgence is more frequently carried to excess than otherwise."[162] From these and similar facts, as also from the general absence of statements to the contrary, I conclude that murders of children who have been allowed to survive their earliest infancy are very rare, though not quite unknown,[163] among the lower races.

[Footnote 153: Schoolcraft, quoted by Sutherland, op. cit. i. 119.]

[Footnote 154: Ellis, Polynesian Researches, i. 255.]

[Footnote 155: Waitz-Gerland, op. cit. vi. 138, 139, 638. Angas, Savage Life and Scenes in Australia and New Zealand, i. 313.]

[Footnote 156: Ploss, Das Kind, ii. 255. Spencer and Gillen, Native Tribes of Central Australia, p. 51. Iidem, Northern Tribes of Central Australia, p. 608.]

[Footnote 157: See infra, p. 529 sqq.; also Haberland, loc. cit. p. 29, and Sutherland, op. cit. i. 115 sqq.]

[Footnote 158: Williams and Calvert, op. cit. p. 142.]

[Footnote 159: Taplin, in Woods, Native Tribes of South Australia, p. 15.]

[Footnote 160: Brough Smyth, op. cit. i. 51. Meyer, 'Manners and Customs of the Aborigines of the Encounter Bay Tribe,' in Woods, Native Tribes of South Australia, p. 186.]

[Footnote 161: Guinnard, op. cit. p. 144.]

[Footnote 162: Ellis, History of Madagascar, i. 161.]

[Footnote 163: Among the Sandwich Islanders "the infant, after living a week, a month, or even a year, was still insecure, as some were destroyed when able to walk" (Ellis, Tour through Hawaii, p. 325). Among the Eskimo about Behring Strait, "girls were often killed when from 4 to 6 years of age" (Nelson, in Ann. Rep. Bur. Ethn. xviii. 289).]

The custom of infanticide prevails, or has prevailed, not only in the savage world, but among semi-civilised and {406} civilised races. In the poorest districts of China female infants are often destroyed by their parents immediately after their birth, chiefly on account of poverty.[164] Though disapproved of by educated Chinese, the practice is treated with forbearance or indifference by the mass of the people, and is acquiesced in by the mandarins.[165] "When seriously appealed to on the subject," says the Rev. J. Doolittle, "though all deprecate it as contrary to the dictates of reason and the instincts of nature, many are ready boldly to apologise for it, and declare it to be necessary, especially in the families of the excessively poor."[166] However, infanticide is neither directly sanctioned by the government, nor agreeable to the general spirit of the laws and institutions of the Empire;[167] and it is prohibited both by Buddhism and Taouism.[168] According to Dr. de Groot, the belief that the spirits of the dead may, with authorisation of Heaven, take vengeance on the living, has a very salutary effect on female infanticide in China. "The fear that the souls of the murdered little ones may bring misfortune, induces many a father or mother to lay the girls they are unwilling to bring up in the street for adoption into some family, or into a foundling-hospital."[169]

[Footnote 164: Gutzlaff, Sketch of Chinese History, i. 59. Wells Williams, Middle Kingdom, ii. 240 sqq. Douglas, Society in China, p. 354 sqq. Doolittle, Social Life of the Chinese, ii. 206.]

[Footnote 165: Doolittle, op. cit. ii. 203, 208 sq. Wells Williams, op. cit. i. 836; ii. 242. Douglas, Society in China, p. 354. Ploss, Das Kind, ii. 262.]

[Footnote 166: Doolittle, op. cit. ii. 208.]

[Footnote 167: Staunton, in his translation of Ta Tsing Leu Lee, p. 347 n. *]

[Footnote 168: Thâi Shang, 4. Giles, Strange Stories from a Chinese Studio, ii. 377. Douglas, Confucianism and Taouism, p. 267. Indo-Chinese Gleaner, iii. 164.]

[Footnote 169: de Groot, Religions System of China, (vol. iv. book) ii. 457 sqq.]

In ancient times the Semites, or at least some of them, not only practised infanticide, but, under certain circumstances, approved of it or regarded it as a duty. According to an ancient Arabic proverb, it was a generous deed to bury a female child;[170] and we read of [(]O[s.]aim the Fazarite who did not dare to save alive his daughter Lacî[t.]a, without concealing her from the people, although she was his only child.[171] Considering that among the {407} nomads of Arabia, who suffer constantly from hunger during a great part of the year, a daughter is a burden to the poor, we may suppose, with Professor Robertson Smith, that "infanticide was as natural to them as to other savage peoples in the hard struggle for life."[172] It was condemned, however, by the Prophet:--"Slay not your children for fear of poverty: we will provide for them; beware! for to slay them is ever a great sin."[173] In the Mosaic Law, on the other hand, infanticide is never touched upon, and, in all probability, it hardly occurred among the Hebrews in historic times. But we have reason to believe that, at an earlier period, among them as also among other branches of the Semitic race, child-murder was frequently practised as a sacrificial rite.[174]

[Footnote 170: Freytag, Arabum Proverbia, i. 229.]

[Footnote 171: Robertson Smith, Kinship and Marriage in Early Arabia, p. 293.]

[Footnote 172: Ibid. p. 294.]

[Footnote 173: Koran, xvii. 33; also, ibid. vi. 141, 152, and lxxxi. 8 sq.]

[Footnote 174: See infra, on Human Sacrifice.]

The murder of female infants, whether by the direct employment of homicidal means, or by exposure to privation and neglect, has for ages been a common practice, or even a genuine custom, among various Hindu castes.[175] Yet they are well aware that it is prohibited by their sacred books; according to the Laws of Manu, the King shall put to death "those who slay women, infants, or Brâhmanas."[176] Even the Rajputs, who--out of family pride and owing to the expenses connected with the marriage ceremony--were particularly addicted to infanticide, considered that a family in which such a deed had been perpetrated was, in consequence, an object of divine displeasure. On the twelfth day, therefore, the family priest was sent for, and, by suitable gratuities, absolution was obtained. In the room where the infant was born and destroyed, he also prepared and ate some food with which the family provided him; this was considered a hom, or burnt offering, and, by eating it in that place, the priest was supposed to take the whole hutteea, or sin, upon himself, and to cleanse the family from it.[177]

[Footnote 175: Wilkins, Modern Hinduism, 431. Chevers, Manual of Medical Jurisprudence for India, p. 750 sqq.]

[Footnote 176: Laws of Manu, ix. 232.]

[Footnote 177: 'Oude as it was before the Annexation,' in Church Missionary Intelligencer, xi. 81 sq.]

{408} Exposure of new-born children was practised by the people of the Vedic age,[178] as also by other so-called Aryan peoples in ancient times.[179] The Teutonic father had to decide whether the child, whilst still lying on the ground, should be accepted as a member of the family, or whether it should be exposed. If he lifted it up, and some water was poured over it, or a drop of milk or honey passed its lips, it was generally safe. But apart from these restrictions, custom seems to have been in favour of exposure only under certain circumstances, exactly similar to those in which infanticide is practised among many modern savages: if the child was born out of wedlock, or if it was deformed or sickly, or if it was born on an unlucky day, or in case of twins--one of whom was always supposed to be illegitimate--or if the parents were very poor. The exposed infant, however, was not necessarily destined to die, but was, in many cases, adopted by somebody who could afford to rear it.[180]

[Footnote 178: Kaegi, Rigveda, p. 16.]

[Footnote 179: Strieker, 'Ethnographische Notizen über den Kindermord und die künstliche Fruchtabtreibung,' in Archiv für Anthropologie, v. 451 (Celts and Slavs).]

[Footnote 180: Grimm, Deutsche Rechtsalterthümer, p. 455 sq. Wilda, Strafrecht der Germanen, pp. 704, 725. Maurer, Bekehrung des Norwegischen Stammes ii. 181. Weinhold, Altnordisches Leben, p. 261. Nordström, Bidrag till den svenska samhälls-författningens historia, ii. 44. Stemann, Den danske Retshistorie indtil Christian V.'s Lov, p. 359.]

The exposure of deformed or sickly infants was undoubtedly an ancient custom in Greece; in Sparta, at least, it was enjoined by law. It was also approved of by the most enlightened among the Greek philosophers. Plato condemns all those children who are imperfect in limbs, as also those who are born from depraved citizens, to be buried in some obscure and unknown place; he maintains, moreover, that when both sexes have passed the age assigned for presenting children to the State, no child is to be brought to light, and that any infant which is by accident born alive, shall be done away with.[181] Aristotle not only lays down the law with respect to the exposing or bringing up of children, that "nothing imperfect or maimed shall be brought up," but proposes that {409} the number of children allowed to each marriage shall be regulated by the State, and that, if any woman be pregnant after she has produced the prescribed number, an abortion shall be procured before the fetus has life.[182] These views were in perfect harmony with the general tendency of the Greeks to subordinate the feelings of the individual to the interest of the State. Confined as they were to a very limited territory, they were naturally afraid of being burdened with the maintenance of persons whose lives could be of no use. It is necessary, says Aristotle, to take care that the increase of the people should not exceed a certain number, in order to avoid poverty and its concomitants, sedition and other evils.[183] Yet the exposure of healthy infants, which was frequently practised in Greece, was hardly approved of by public opinion, although tolerated,[184] except at Thebes, where it was a crime punishable with death.[185]

[Footnote 181: Plato, Respublica, v. 460 sq.]

[Footnote 182: Aristotle, Politica, vii. 16, p. 1335.]

[Footnote 183: Ibid. ii. 6, p. 1265.]

[Footnote 184: Schmidt, Ethik der alten Griechen, ii. 138, 463. Hermann-Blumner, Lehrbuch der griechischen Privatalterthümer, p. 77.]

[Footnote 185: Aelian, Varia Historiæ, ii. 7.]

In Rome custom or law enjoined the destruction of deformed infants. According to a law of the Twelve Tables, referred to by Cicero, monstrous abortions were not suffered to live.[186] With reference to a much later period Seneca writes, "We destroy monstrous births, and we also drown our children if they are born weakly or unnaturally formed"; he adds that it is an act of reason thus to separate what is useless from what is sound.[187] But there was no tendency in Rome to encourage infanticide beyond these limits. It has been observed that, whilst the Greek policy was rather to restrain, the Roman policy was always to encourage, population.[188] Being engaged in incessant wars of conquest, Rome was never afraid of being over-populated, but, on the contrary, tried to increase the number of its citizens by according special privileges to the fathers of many children, and exempting poor parents from most {410} of the burden of taxation.[189] The power of life and death which the Roman father possessed over his children undoubtedly involved the legal right of destroying or exposing new-born infants; but it is equally certain that the act was frequently disapproved of.[190] An ancient "law," ascribed to Romulus--which, as Mommsen suggests, could have been merely a priestly direction[191]--enjoined the father to bring up all his sons and at least his eldest daughter, and forbade him to destroy any well-formed child till it had completed its third year, when the affections of the parent might be supposed to be developed.[192] In later times we find the exposure of children condemned by poets, historians, philosophers, jurists. Among nefarious acts committed in sign of grief on the day when Germanicus died, Suetonius mentions the exposure of new-born babes.[193] Epictetus indignantly opposes the saying of Epicurus that men should not rear their children:--"Even a sheep will not desert its young, nor a wolf; and shall a man? 'What! will you have us to be silly creatures, like the sheep?' Yet they desert not their young. 'Or savage, like wolves?' Yet even they desert them not. Come, then, who would obey you if he saw his little child fall on the ground and cry?"[194] Julius Paulus, the jurist, pronounced him who refused nourishment to his child, or exposed it in a public place, to be guilty of murder[195]--a statement which is to be understood, not as a legal prohibition of exposure, but only as the expression of a moral opinion.[196] On the other hand, though the exposure of healthy infants was disapproved of in Pagan Rome, it was not generally regarded as an offence of very great magnitude, especially if the parents were destitute.[197] {411} During the Empire it was practised on an extensive scale, and in the literature of the time it is spoken of with frigid indifference. Since the life of the victim was frequently saved by some benevolent person or with a view to profit,[198] it was not regarded in the same light as downright infanticide, which, in the case of a healthy infant, seems to have been strictly prohibited by custom.[199]

[Footnote 186: Cicero, De legibus, iii. 8.]

[Footnote 187: Seneca, De ira, i. 15.]

[Footnote 188: Lecky, History of European Morals, ii. 27.]

[Footnote 189: Montesquieu, De l'esprit des lois, 20 sqq. ([OE]uvres, p. 398 sqq.). Lecky, History of European Morals, ii. 27.]

[Footnote 190: Denis, Histoire des théories et des idées morales dans l'antiquité, ii. 110.]

[Footnote 191: Mommsen, Römisches Strafrecht, p. 619.]

[Footnote 192: Dionysius of Halicarnassus, Antiquitates Romanæ, ii. 15.]

[Footnote 193: Suetonius, Caligula, 5.]

[Footnote 194: Epictetus, Dissertationes, i. 23.]

[Footnote 195: Digesta, xxv. 3. 4.]

[Footnote 196: Noodt, 'Julius Paulus, sive de partus expositione et nece apud veteres,' in Opera omnia, i. 465 sqq. Walter, Geschichte des Römischen Rechts, § 538, vol. ii. 148 sq. Spangenberg, 'Verbrechen des Kindermords und der Aussetzung der Kinder,' in Neues Archiv des Criminalrechts, iii. 10 sqq. Mommsen, Römisches Strafrecht, p. 620, n. 1.]

[Footnote 197: Quintilian, Declamationes, 506. Plutarch, De amore prolis, 5.]

[Footnote 198: Lecky, History of European Morals, ii. 28. Lallemand, Histoire des enfants abandonnés et délaissés, p. 59.]

[Footnote 199: Mommsen, Römisches Strafrecht, p. 619.]

As is generally the case in the savage world, so among semi-civilised and civilised nations whose customs allow or tolerate infanticide, the child, if not suffered to live, has to be killed in its earliest infancy. Among the Chinese[200] and Rajputs[201] it is destroyed immediately after its birth. In the Scandinavian North the killing or exposure of an infant who had already been sprinkled with water was regarded as murder.[202] At Athens parents were punished for exposing children whom they had once begun to rear.[203]

[Footnote 200: Gutzlaff, op. cit. i. 59.]

[Footnote 201: Church Missionary Intelligencer, xi. 81. Chevers, op. cit. p. 752.]

[Footnote 202: Grimm, Deutsche Rechtsalterthümer, i. 457.]

[Footnote 203: Schoemann, Griechische Alterthümer, i. 503.]

The practice of exposing new-born infants, so common in the Pagan Empire, was vehemently denounced by the early Fathers of the Church.[204] They tried to convince men that, if the abandoned infant died, the unnatural parent was guilty of nothing less than murder, whilst the sinful purposes for which foundlings were often used formed another argument against exposure.[205] The enormity of the crime of causing an infant's death was enhanced by the notion that children who had died unbaptised were doomed to eternal perdition.[206] According to a decree of the Council of Mentz in 852, the penance imposed on the mother was heavier if she killed an unbaptised than if she killed a {412} baptised child.[207] In the year 1556, Henry II. of France made a law which punished as a child-murderer any woman who had concealed her pregnancy and delivery, and whose child was found dead, "privé, tant du saint sacrement de baptesme, que sépulture publique et accoustumée."[208] This statute--to which there is a counterpart in England in the statute 21 Jac. I. c. 27,[209] and in the Scotch law of 1690, c. 21[210]--thus went so far as to constitute a presumptive murder, avowedly under the influence of that Christian dogma to which Mr. Lecky attributes, in the first instance, "the healthy sense of the value and sanctity of infant life which so broadly distinguishes Christian from Pagan societies."[211]

[Footnote 204: See Terme and Monfalcon, Histoire des enfans trouvés, p. 67 sqq.]

[Footnote 205: Justin Martyr, Apologia I. pro Christianis, 29, 27 (Migne, Patrologiæ cursus, Ser. Graeca, vi. 373 sq., 369 sqq.).]

[Footnote 206: Cf. Spangenberg, in Neues Archiv des Criminalrechts, iii. 20; Lecky, History of European Morals, ii. 23.]

[Footnote 207: Canon Hludowici regis, 9 (Pertz, Monum. Germaniæ historica, iii. 413).]

[Footnote 208: Isambert, Decrusy, and Armet, Recueil général des anciennes lois françaises, xiii. 472 sq.]

[Footnote 209: Blackstone, Commentaries on the Laws of England, iv. 198.]

[Footnote 210: Erskine, Principles of the Law of Scotland, p. 560.]

[Footnote 211: Lecky, History of European Morals, ii. 23.]

If the Pagans had been comparatively indifferent to the sufferings of the exposed infant, the Christians became all the more cruel to the unfortunate mother, who, perhaps in a fit of despair, had put to death her new-born child. The Christian emperor Valentinian I. made infanticide a capital offence.[212] According to the Coutume de Loudunois, a mother who killed her child was burned.[213] In Germany and Switzerland she was buried alive with a pale thrust through her body;[214] this punishment was prescribed by the criminal code of Charles V., side by side with drowning.[215] Until the end of the eighteenth, or the beginning of the nineteenth, century, infanticide was a capital crime everywhere in Europe, except in Russia.[216] Then, under the influence of that rationalistic movement which compelled men to rectify so many preconceived opinions,[217] it became manifest that an unmarried woman {413} who destroyed her illegitimate child was not in the same category as an ordinary murderess.[218] It was pointed out that shame and fear, the excitement of mind, and the difficulty in rearing the poor bastard, could induce the unfortunate mother to commit a crime which she herself abhorred. That no notice had been taken of all this, is explicable from the extreme severity with which female unchastity was looked upon by the Church. At present most European lawbooks do not punish infanticide committed by an unmarried woman even nominally with death.[219] In France the law which regards infanticide as an aggravated form of meurtre[220] has become a dead letter;[221] and in England no woman seems for a long time to have been executed for killing her new-born child under the distress of mind and fear of shame caused by child-birth.[222]

[Footnote 212: Codex Theodosianus, ix. 14. 1. Institutiones, ix. 16, 7.]

[Footnote 213: Tissot, Le droit pénal, ii. 40.]

[Footnote 214: Osenbrüggen, Das alamannische Strafrecht im deutschen Mittelalter, p. 229 sq. Idem, Studien zur deutschen und schweizerischen Rechtsgeschichte, p. 358.]

[Footnote 215: Charles V.'s Peinliche Gerichts Ordnung, art. 131.]

[Footnote 216: de Feyfer, Verhandeling over den Kindermoord, p. 225. von Fabrice, Die Lehre von der Kindsabtreibung und vom Kindsmord, p. 251.]

[Footnote 217: Berner, Lehrbuch des Deutschen Strafrechtes, p. 497.]

[Footnote 218: Bentham maintained (Theory of Legislation, p. 264 sq.) that infanticide ought not to be punished as a principal offence. "The offence," he says, "is what is improperly called the death of an infant, who has ceased to be, before knowing what existence is,--a result of a nature not to give the slightest inquietude to the most timid imagination; and which can cause no regrets but to the very person who, through a sentiment of shame and pity, has refused to prolong a life begun under the auspices of misery."]

[Footnote 219: de Feyfer, op. cit. p. 228. For modern legislation on infanticide, see also Spangenberg, in Neues Archiv des Criminalrechts, iii. 360 sqq.; von Fabrice, op. cit. p. 254 sqq.]

[Footnote 220: Code Pénal, art. 300, 302.]

[Footnote 221: Garraud, Traité théoretique et pratique du droit pénal français, iv. 251.]

[Footnote 222: Stephen, History of the Criminal Law of England, iii. 86.]

* * * * *

Hand in hand with the custom of infanticide goes feticide, which prevails extensively in the savage world.[223] The same considerations as induce savages to kill their new-born infants also induce them to destroy the fetus before it has proceeded into the world from the mother's body. Besides, women procure abortion with a view to avoiding the disagreeable incidents accompanying the state of pregnancy; or, very frequently, in order to conceal illicit intercourse.[224] Considering that the same degree of sympathy cannot be felt with regard to a child not yet born as with regard to an infant, it is not surprising to find that feticide is practised without objection even by {414} some peoples who never commit infanticide. Thus in Samoa, where the latter practice was perfectly unknown, the destruction of unborn children prevailed to a melancholy extent, and the same was the case in the Mitchell Group.[225] Among the Dacotahs, who only occasionally killed infants, abortion procured by artificial means was not held objectionable.[226] On the other hand there are savages who consider it a crime. Some Indian tribes in North America abhor the practice.[227] The natives of Tenimber and Timor-laut punish it with heavy fines.[228] Regarding the Kafirs, Mr. Warner states that "the procuring of abortion, although universally practised by all classes of females in Kafir society, is nevertheless a crime of considerable magnitude in the eye of the Law; and when brought to the notice of the Chief, a fine of four or five head of cattle is inflicted. The accomplices are equally guilty with the female herself."[229]

[Footnote 223: Ploss, Das Weib, i. 842 sqq.]

[Footnote 224: Ibid. i. 851 sq.]

[Footnote 225: Turner, Samoa, pp. 79, 280.]

[Footnote 226: Schoolcraft, Indian Tribes of the United States, iii. 243. Keating, op. cit. i. 394.]

[Footnote 227: Ploss, Das Weib, i. 848.]

[Footnote 228: Riedel, De sluik- en kroesharige rassen tusschen Selebes en Papua, p. 302.]

[Footnote 229: Warner, in Maclean, Compendium of Kafir Laws and Customs, p. 62. Cf. Brownlee, ibid. p. 111; Holden, Past and Future of the Kaffir Races, p. 334.]

Passing to more civilised nations, we notice that, among Hindus and Muhammedans, artificial abortion is extremely common and is hardly reprobated by public opinion, whatever religion or law may have to say on the subject.[230] It is especially resorted to by unmarried women as a means of escaping punishment and shame. "In a country like India," says Dr. Chevers, "where true morality is almost unknown, but where the laws of society exercise the most rigorous and vigilant control imaginable over the conduct of females, and where six-sevenths of the widows, whatever their age or position in life may be, are absolutely debarred from re-marriage, and are compelled to rely upon the uncertain support of their relatives, it is scarcely surprising that great crimes should be frequently practised to conceal the results of immorality, and that the procuring of criminal abortion should, especially, be an act of {415} almost daily commission, and should have become a trade among certain of the lower midwives."[231] In Persia every illegitimate pregnancy ends with abortion; the act is done almost publicly, and no obstacle is put in its way.[232] In Turkey, both among the rich and poor, even married women very commonly procure abortion after they have given birth to two children, one of which is a boy; and the authorities regard the practice with indifference.[233] In ancient Greece, as we have seen, feticide was under certain circumstances recommended by Plato and Aristotle, in preference to infanticide. In Rome it was prohibited by Septimius Severus and Antoninus, but the prohibition seems to have referred only to those married women who, by procuring abortion, defrauded their husbands of children.[234] During the Pagan Empire, abortion was extensively practised, either from poverty, or licentiousness, or vanity; and, although severely disapproved of by some,[235] "it was probably regarded by the average Romans of the later days of Paganism much as Englishmen in the last century regarded convivial excesses, as certainly wrong, but so venial as scarcely to deserve censure."[236] Seneca thinks Helvia worthy of special praise because she had never destroyed her expected child within her womb, "after the fashion of many other women, whose attractions are to be found in their beauty alone."[237] The Romans drew a broad line between feticide and infanticide. An unborn child was not regarded by them as a human being; it was a spes animantis, not an infans.[238] It was said to be merely a part of the mother, as the fruit is a part of the tree till it becomes ripe and falls down.[239]

[Footnote 230: Laws of Manu, v. 90; Vish['n]u Purá['n]a, p. 207 sq.]

[Footnote 231: Chevers, op. cit. p. 712.]

[Footnote 232: Polak, Persien, i. 217.]

[Footnote 233: Ploss, Das Weib, i. 846 sq.]

[Footnote 234: Digesta, xlvii. 11. 4. Cf. Rein, Criminalrecht der Römer, p. 447.]

[Footnote 235: Paulus, quoted in Digesta, xxv. 3, 4.]

[Footnote 236: Lecky, History of European Morals, ii. 21 sq.]

[Footnote 237: Seneca, Ad Helviam, 16.]

[Footnote 238: Spangenberg, 'Verbrechen der Abtreibung der Leibesfrucht,' in Neues Archiv des Criminalrechts, ii. 23.]

[Footnote 239: Ibid. ii. 22.]

Very different opinions were held by the Christians. A sanctity, previously unheard of, was attached to human life from the very beginning. Feticide was regarded as a {416} form of murder. "Prevention of birth," says Tertullian, "is a precipitation of murder; nor does it matter whether one take away a life when formed, or drive it away while forming. He also is a man who is about to be one. Even every fruit already exists in its seed."[240] St. Augustine, again, makes a distinction between an embryo which has already been formed, and an embryo as yet unformed. From the creation of Adam, he says, it appears that the body is made before the soul. Before the embryo has been endowed with a soul it is an embryo informatus, and its artificial abortion is to be punished with a fine only; but the embryo formatus is an animate being, and to destroy it is nothing less than murder, a crime punishable with death.[241] This distinction between an animate and inanimate fetus was embodied both in Canon[242] and Justinian law,[243] and passed subsequently into various lawbooks.[244] And a woman who destroyed her animate embryo was punished with death.[245]

[Footnote 240: Tertullian, Apologeticus, 9 (Migne op. cit. i. 319 sq.).]

[Footnote 241: St. Augustine, Questiones in Exodum, 80; Idem, Questiones Veteris et Novi Testamenti, 23 (Migne, op. cit. xxxiv.-xxxv. 626, 2229).]

[Footnote 242: Gratian, Decretum, ii. 32. 2. 8 sq.]

[Footnote 243: As regards the time from which the fetus was considered to be animate a curious distinction was drawn between the male and the female fetus. The former was regarded as animatus forty days after its conception, the latter eighty days. This theory, however--which was derived, as it seems, either from an absurd misinterpretation of Leviticus, xii. 2-5, or from the views of Aristotle (De animalibus historiæ, vii. 3; cf. Pliny, Historia naturalis, vii. 6)--was not accepted by the glossarist of the Justinian Code, who fixed the animation of the female, as well as of the male, fetus at forty days after its conception; and this view was adopted by later jurists (Spangenberg, in Neues Archiv des Criminalrechts, ii. 37 sqq.).]

[Footnote 244: von Fabrice, op. cit. p. 202 sq. Berner, op. cit. p. 501. Wilda, op. cit. p. 720 sqq.]

[Footnote 245: Fleta, i. 23. 12 (England). Charles V's Peinliche Gerichts Ordnung, art. 133. Spangenberg in Neues Archiv des Criminalrechts, ii. 16.]

The criminality of artificial abortion was increased by the belief that an embryo formatus, being a person endowed with an immortal soul, was in need of baptism for its salvation. In his highly esteemed treatise De fide, written in the sixth century, St. Fulgentius says, "It is to be believed beyond doubt, that not only men who are come to the use of reason, but infants, whether they die in their mother's womb, or after they are born, without baptism, {417} in the name of the Father, Son, and Holy Ghost, are punished with everlasting punishment in eternal fire, because though they have no actual sin of their own, yet they carry along with them the condemnation of original sin from their first conception and birth."[246] And in the Lex Bajuwariorum this doctrine is expressly referred to in a paragraph which prescribes a daily compensation for children killed in the womb on account of the daily suffering of those children in hell.[247] Subsequently, however, St. Fulgentius' dictum was called in question, and no less a person than Thomas Aquinas suggested the possibility of salvation for an infant who died before its birth.[248] Apart from this, the doctrine that the life of an embryo is equally sacred with the life of an infant was so much opposed to popular feelings, that the law concerning feticide had to be altered. Modern legislation, though treating the fetus as a distinct being from the moment of its conception,[249] punishes criminal abortion less severely than infanticide.[250] And the very frequent occurrence of this crime[251] is an evidence of the comparative indifference with which it is practically looked upon by large numbers of people in Christian countries.

[Footnote 246: St. Fulgentius, De fide, 27 (Migne, op. cit. lxv. 701).]

[Footnote 247: Lex Bajuwariorum, viii. 21 (vii. 20).]

[Footnote 248: Lecky, History of the Rise and Influence of the Spirit of Rationalism in Europe, i. 360, n. 2.]

[Footnote 249: Henke, Lehrbuch der gerichtlichen Medicin, 99, p. 75. Berner, op. cit. p. 502.]

[Footnote 250: von Fabrice, op. cit. p. 199. For modern laws referring to criminal abortion, see ibid. p. 206 sqq., and Spangenberg, in Neues Archiv des Criminalrechts, ii. 178 sqq.]

[Footnote 251: See Ploss, Das Weib, i. 848 sqq.; Schmidt's Jahrbücher der in- und ausländischen Gesammten Medicin, xciii. 97.]

Chapter XVIII

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.