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Title: The Origin and Development of the Moral Ideas
Author: Edward Westermarck
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THE ORIGIN AND DEVELOPMENT OF THE MORAL IDEAS
[Macmillan icon]
MACMILLAN AND CO., LIMITED
LONDON . BOMBAY . CALCUTTA
MELBOURNE
THE MACMILLAN COMPANY
NEW YORK . BOSTON . CHICAGO
DALLAS . SAN FRANCISCO
THE MACMILLAN CO. OF CANADA, LTD.
TORONTO
THE ORIGIN
AND DEVELOPMENT
OF THE
MORAL IDEAS
BY
EDWARD WESTERMARCK, PH.D., LL.D.
MARTIN WHITE PROFESSOR OF SOCIOLOGY IN THE UNIVERSITY OF
LONDON
PROFESSOR OF MORAL PHILOSOPHY AT THE UNIVERSITY OF FINLAND,
HELSlNGFORS
AUTHOR OF "THE HISTORY OF HUMAN MARRIAGE"
IN TWO VOLUMES
VOL. I
_SECOND EDITION_
MACMILLAN AND CO., LIMITED
ST. MARTIN'S STREET, LONDON
1924.
COPYRIGHT
_First Edition_ 1906
_Second Edition_ 1912
_Reprinted_ 1924
PRINTED IN GREAT BRITAIN
PREFACE
THE frequent references made in the present work, on my own authority,
to customs and ideas prevalent among the natives of Morocco, require a
word of explanation. Seeing the close connection between moral
opinions and magic and religious beliefs, I thought it might be useful
for me to acquire first-hand knowledge of the folk-lore of some
non-European people, and for various reasons I chose Morocco as my
field of research. During the four years I spent there, largely among
its country population, I have not only collected anthropological
data, but tried to make myself familiar with the native way of
thinking; and I venture to believe that this has helped me to
understand various customs occurring at a stage of civilisation
different from our own. I purpose before long to publish the detailed
results of my studies in a special monograph on the popular religion
and magics of the Moors.
For these researches I have derived much material support from the
University of Helsingfors. I am also indebted to the Russian Minister
at Tangier, M. B. de Bacheracht, for his kindness in helping me on
several occasions when I was dependent on the Sultan's Government. All
the time I have had the valuable assistance of my Moorish friend
Shereef [(]Abd-es-Salâm el-Ba[k.][k.]âli, to whom credit {vi} is due
for the kind reception I invariably received from peasants and
mountaineers, not generally noted for friendliness towards Europeans.
I beg to express my best thanks to Mr. Stephen Gwynn for revising the
first thirteen chapters, and to Mr. H. C. Minchin for revising the
remaining portion of the book. To their suggestions I am indebted for
the improvement of many phrases and expressions. I have likewise to
thank my friend Mr. Alex. F. Shand for kindly reading the proofs of
the earlier chapters and giving me the benefit of his opinion.
Throughout the work the reader will easily find how much I owe to
British science and thought--a debt which is greater than I can ever
express.
E. W.
London,
_January_, 1906.
* * * * *
PREFACE TO THE SECOND EDITION
THE present edition is only a reprint of the first, with a few
inaccurate expressions corrected.
E. W.
London,
_July_, 1912.
CONTENTS
INTRODUCTORY
The origin of the present investigation, p. 1.--Its subject-matter,
p. 1 _sq._--Its practical usefulness, p. 2 _sq._
CHAPTER I
THE EMOTIONAL ORIGIN OF MORAL JUDGMENTS
The moral concepts essentially generalisations of tendencies in
certain phenomena to call forth moral emotions, pp. 4-6.--The assumed
universality or "objectivity" of moral judgments, p. 6 _sq._--Theories
according to which the moral predicates derive all their import from
reason, "theoretical" or "practical," p. 7 _sq._--Our tendency to
objectivise moral judgments, no sufficient ground for referring them
to the province of reason, p. 8 _sq._--This tendency partly due to the
comparatively uniform nature of the moral consciousness, p.
9.--Differences of moral estimates resulting from circumstances of a
purely intellectual character, pp. 9-11.--Differences of an emotional
origin, pp. 11-13.--Quantitative, as well as qualitative, differences,
p. 13.--The tendency to objectivise moral judgments partly due to the
authority ascribed to moral rules, p. 14.--The origin and nature of
this authority, pp. 14-17.--General moral truths non-existent, p. 17
_sq._--The object of scientific ethics not to fix rules for human
conduct, but to study the moral consciousness as a fact, p. 18.--The
supposed dangers of ethical subjectivism, pp. 18-20.
CHAPTER II
THE NATURE OF THE MORAL EMOTIONS
The moral emotions of two kinds: disapproval, or indignation, and
approval, p. 21.--The moral emotions retributive emotions, disapproval
forming a sub-species of resentment, and approval a sub-species of
retributive kindly emotion, _ibid._--Resentment an aggressive attitude
of mind toward a cause of pain, p. 22 _sq._--Dr. Steinmetz's
suggestion that revenge is essentially rooted in the feeling of power
and superiority, and originally "undirected," pp. 23-27.--The true
import of the facts adduced as evidence for this hypothesis,
pp. 27-30.--The collective responsibility usually involved in the
institution of the blood-feud, pp. 30-32.--Explanation of it,
pp. 32-35.-- {viii} The strong tendency to discrimination which
characterises resentment not wholly lost even behind the veil of
common responsibility, p. 35 _sq._--Revenge among the lower animals,
p. 37 _sq._--Violation of the "self-feeling" a common incentive to
resentment, p. 38 _sq._--But the reaction of the wounded
"self-feeling" not necessarily, in the first place, concerned with the
infliction of pain, p. 39 _sq._--Revenge only a link in a chain of
emotional phenomena for which "non-moral resentment" may be used as a
common name, p. 40.--The origin of these phenomena, pp. 40-42.--Moral
indignation closely connected with anger, p. 42 _sq._--Moral
indignation, like non-moral resentment, a reactionary attitude of mind
directed towards the cause of inflicted pain, though the reaction
sometimes turns against innocent persons, pp. 43-48.--In their
administration of justice gods still more indiscriminate than men,
pp. 48-51.--Reasons for this, p. 51 _sq._--Sin looked upon in the light
of a contagious matter, charged with injurious energy, pp. 52-57.--The
curse looked upon as a baneful substance injuring or destroying
anybody to whom it cleaves, p. 57 _sq._--The tendency of curses to
spread, pp. 58-60.--Their tendency to contaminate those who derive
their origin from the infected individual, p. 60 _sq._--The vicarious
suffering involved in sin-transference not to be confounded with
vicarious expiatory sacrifice, p. 61.--Why scapegoats are sometimes
killed, pp. 61-64.--Why sacrificial victims are sometimes used as
scapegoats, p. 64 _sq._--Vicarious expiatory sacrifices,
pp. 65-67.--The victim accepted as a substitute on the principle of
social solidarity, p. 67 _sq._--Expiatory sacrifices offered as ransoms,
p. 68 _sq._--Protests of the moral consciousness against the infliction
of penal suffering upon the guiltless, pp. 70-72.
CHAPTER III
THE NATURE OF THE MORAL EMOTIONS (_continued_)
Whilst, in the course of mental evolution, the true direction of the
hostile reaction involved in moral disapproval has become more
apparent, its aggressive character has become more disguised,
p. 73.--Kindness to enemies not a rule in early ethics, p. 73 _sq._--At
the higher stages of moral development retaliation condemned and
forgiveness of enemies laid down as a duty, pp. 74-77.--The rule of
retaliation and the rule of forgiveness not radically opposed to each
other, p. 77 _sq._--Why enlightened and sympathetic minds disapprove
of resentment and retaliation springing from personal motives, p. 78
_sq._--The aggressive character of moral disapproval has also become
more disguised by the different way in which the aggressiveness
displays itself, p. 79.--Retributive punishment condemned, and the end
of punishment considered to be either to deter from crime, or to
reform the criminal, or to repress crime by eliminating or secluding
him, pp. 79-81.--Objections to these theories, p. 82 _sq._--Facts which,
to some extent, fill up the gap between the theory of retribution and
the utilitarian theories of punishment, pp. 84-91.--The aggressive
element in moral disapproval has undergone a change which tends to
conceal its true nature by narrowing the channel in which it discharges
itself, deliberate and discriminating resentment being apt to turn
against the will rather than against the willer, p. 91 _sq._--Yet it is
the instinctive desire to inflict counter-pain that gives to moral
indignation its most important characteristic, p. 92 _sq._--Retributive
kindly emotion a friendly attitude of mind towards a cause of pleasure,
p. 93 _sq._--Retributive kindly emotion among the lower animals,
p. 94.--Its intrinsic object, p. 94 _sq._--The want of discrimination
which is sometimes found in retributive kindness, p. 95.--Moral approval
a kind of retributive kindly emotion, _ibid._--Moral approval sometimes
bestows its favours upon undeserving individuals for the merits of others,
pp. 95-97.--Explanation of this, p. 97 _sq._--Protests against the notion
of vicarious merit, p. 98 _sq._
{ix} CHAPTER IV
THE NATURE OF THE MORAL EMOTIONS (_concluded_)
Refutation of the opinion that moral emotions only arise in
consequence of moral judgments, p. 100 _sq._--However, moral
judgments, being definite expressions of moral emotions, help us to
discover the true nature of these emotions, p. 101.--Disinterestedness
and apparent impartiality characteristics by which moral indignation
and approval are distinguished from other, non-moral, kinds of
resentment or retributive kindly emotion, pp. 101-104.--Besides, a
moral emotion has a certain flavour of generality, p. 104 _sq._--The
analysis of the moral emotions which has been attempted in this and
the two preceding chapters holds true not only of such emotions as we
feel on account of the conduct of others, but of such emotions as we
feel on account of our own conduct as well, pp. 105-107.
CHAPTER V
THE ORIGIN OF THE MORAL EMOTIONS
We may feel disinterested resentment, or disinterested retributive
kindly emotion, on account of an injury inflicted, or a benefit
conferred, upon another person with whose pain, or pleasure, we
sympathise, and in whose welfare we take a kindly interest,
p. 108.--Sympathetic feelings based on association, p. 109 _sq._--Only
when aided by the altruistic sentiment sympathy induces us to take a
kindly interest in the feelings of our neighbours, and tends to
produce disinterested retributive emotions, p. 110 _sq._--Sympathetic
resentment to be found in all animal species which possess altruistic
sentiments, p. 111 _sq._--Sympathetic resentment among savages, p. 113
_sq._--Sympathetic resentment may not only be a reaction against
sympathetic pain, but may be directly produced by the cognition of the
signs of anger (punishment, language, &c.), pp. 114-116.--Disinterested
antipathies, p. 116 _sq._--Sympathy springing from an altruistic
sentiment may also produce disinterested kindly emotion,
p. 117.--Disinterested likings, _ibid._--Why disinterestedness,
apparent impartiality, and the flavour of generality have become
characteristics by which so-called moral emotions are distinguished
from other retributive emotions, p. 117 _sq._--Custom not only a
public habit, but a rule of conduct, p. 118.--Custom conceived of as a
moral rule, p. 118 _sq._--In early society customs the only moral
rules ever thought of, p. 119.--The characteristics of moral
indignation to be sought for in its connection with custom, p.
120.--Custom characterised by generality, disinterestedness, and
apparent impartiality, p. 120 _sq._--Public indignation lies at the
bottom of custom as a moral rule, p. 121 _sq._--As public indignation
is the prototype of moral disapproval, so public approval is the
prototype of moral approval, p. 122.--Moral disapproval and approval
have not always remained inseparably connected with the feelings of
any special society, p. 122 _sq._--Yet they remain to the last public
emotions if not in reality, then as an ideal, p. 123.--Refutation of
the opinion that the original form of the moral consciousness has been
the individual's own conscience, p. 123 _sq._--The antiquity of moral
resentment, p. 124.--The supposition that remorse is unknown among the
lower races contradicted by facts, p. 124 _sq._--Criticism of Lord
Avebury's statement that modern savages seem to be almost entirely
wanting in moral feeling, pp. 125-129.--The antiquity of moral
approval, p. 129 _sq._
{x}
CHAPTER VI
ANALYSIS OF THE PRINCIPAL MORAL CONCEPTS
Our analysis to be concerned with moral concepts formed by the
civilised mind, p. 131.--Moral concepts among the lower races,
pp. 131-133.--Language a rough generaliser, p. 133.--Analysis of the
concepts _bad_, _vice_, and _wrong_, p. 134.--Of _ought_ and _duty_,
pp. 134-137.--Of _right_, as an adjective, pp. 137-139.--Of _right_,
as a substantive, p. 139 _sq._--Of the relations between _rights_ and
_duties_, p. 140 _sq._--Of _injustice_ and _justice_, pp. 141-145.--Of
_good_, pp. 145-147.--Of _virtue_, pp. 147-149.--Of the relation
between _virtue_ and _duty_, p. 149 _sq._--Of _merit_, p. 150
_sq._--Of the relation between _merit_ and _duty_, p. 151 _sq._--The
question of the _super-obligatory_, pp. 152-154.--The question of the
morally _indifferent_, pp. 154-157.
CHAPTER VII
CUSTOMS AND LAWS AS EXPRESSIONS OF MORAL IDEAS
How we can get an insight into the moral ideas of mankind at large,
p. 158.--The close connection between the habitualness and the
obligatoriness of custom, p. 159.--Though every public habit is not a
custom, involving an obligation, men's standard of morality is not
independent of their practice, p. 159 _sq._--The study of moral ideas
to a large extent a study of customs, p. 160.--But custom never covers
the whole field of morality, and the uncovered space grows larger in
proportion as the moral consciousness develops, p. 160 _sq._--At the
lower stages of civilisation custom the sole rule for conduct,
p. 161.--Even kings described as autocrats tied by custom, p. 162.--In
competition with law custom frequently carries the day, p. 163
_sq._--Custom stronger than law and religion combined, p. 164.--The
laws themselves command obedience more as customs than as laws,
_ibid._--Many laws were customs before they became laws, p. 165.--The
transformation of customs into laws, p. 165 _sq._--Laws as expressions
of moral ideas, pp. 166-168.--Punishment and indemnification, p. 168
_sq._--Definition of punishment, p. 169 _sq._--Savage punishments
inflicted upon the culprit by the community at large, pp. 170-173.--By
some person or persons invested with judicial authority,
pp. 173-175.--The development of judicial organisation out of a previous
system of lynch-law, p. 175.--Out of a previous system of private
revenge, p. 176.--Public indignation displays itself not only in
punishment, but to a certain extent in the custom of revenge, p. 176
_sq._--The social origin of the _lex talionis_, pp. 177-180.--The
transition from revenge to punishment, and the establishment of a
central judicial and executive authority, pp. 180-183.--The
jurisdiction of chiefs, p. 183 _sq._--The injured party or the accuser
acting as executioner, but not as judge, p. 184_sq._--The existence of
punishment and judicial organisation among a certain people no exact
index to its general state of culture, p. 185.--The supposition that
punishment has been intended to act as a deterrent, p. 185
_sq._--Among various semi-civilised and civilised peoples the criminal
law has assumed a severity which far surpasses the rigour of the _lex
talionis_, pp. 186-183.--Wanton cruelty not a general characteristic
of the public justice of savages, pp. 188-190. Legislators referring
to the deterrent effects of punishment, p. 190 _sq._--The practice of
punishing criminals in public, p. 191 _sq._--The punishment actually
inflicted on the criminal in many cases much less severe than the
punishment with which the law threatens him, p. 192 _sq._--The
detection of criminals was in earlier times much rarer and more
uncertain than it is now, p. 193.--The chief explanation of the great
severity of certain {xi} criminal codes lies in their connection with
despotism or religion or both, pp. 193-198.--Punishment may also be
applied as a means of deterring from crime, p. 198 _sq._--But the
scope which justice leaves for determent pure and simple is not wide,
p. 199.--The criminal law of a community on the whole a faithful
exponent of moral sentiments prevalent in that community at large,
pp. 199-201.
CHAPTER VIII
THE GENERAL NATURE OF THE SUBJECTS OF ENLIGHTENED MORAL
JUDGMENTS
Definitions of the term "conduct," p. 202 _sq._--The meaning of the
word "act," p. 203 _sq._--The meaning of the word "intention,"
p. 204.--There can be only one intention in one act, p. 204 _sq._ The
moral judgments which we pass on acts do not really relate to the
event, but to the intention, p. 205 _sq._--A person morally
accountable also for his deliberate wishes, p. 206.--A deliberate wish
is a volition, p. 206 _sq._--The meaning of the word "motive,"
p. 207.--Motives which are volitions fall within the sphere of moral
valuation, _ibid._--The motive of an act may be an intention, but an
intention belonging to another act, _ibid._--Even motives which
consist of non-volitional conations may indirectly exercise much
influence on moral judgments, p. 207 _sq._--Refutation of Mill's
statement that "the motive has nothing to do with the morality of the
action," p. 208 _sq._--Moral judgments really passed upon men as
acting or willing, not upon acts or volitions in the abstract, p. 209.
--Forbearances morally equivalent to acts, p. 209 _sq._--Distinction
between forbearances and omissions, p. 210.--Moral judgments refer not
only to willing, but to not-willing as well, not only to acts and
forbearances, but to omissions, p. 210 _sq._--Negligence,
heedlessness, and rashness, p. 211.--Moral judgments of blame
concerned with not-willing only in so far as this not-willing is
attributed to a defect of the "will," p. 211 _sq._--Distinction
between conscious omissions and forbearances, and between not-willing
to refrain from doing and willing to do, p. 212.--The "known
concomitants of acts," p. 213.--Absence of volitions also gives rise
to moral praise, p. 213 _sq._--The meaning of the term "conduct,"
p. 214.--The subject of a moral judgment is, strictly speaking, a
person's will, or character, conceived as the cause either of
volitions or of the absence of volitions, p. 214 _sq._--Moral
judgments that are passed on emotions or opinions really refer to the
will, p. 215 _sq._
CHAPTER IX
THE WILL AS THE SUBJECT OF MORAL JUDGMENT AND THE INFLUENCE OF
EXTERNAL EVENTS
Cases in which no distinction is made between intentional and
accidental injuries, pp. 217-219.--Yet even in the system of
self-redress intentional or foreseen injuries often distinguished from
unintentional and unforeseen injuries, pp. 219-221.--A similar
distinction made in the punishments inflicted by many savages, p. 221
_sq._--Uncivilised peoples who entirely excuse, or do not punish,
persons for injuries which they have inflicted by mere accident,
p. 222 _sq._--Peoples of a higher culture who punish persons for bringing
about events without any fault of theirs, pp. 223-226.--At the earlier
stages of civilisation gods, in particular, attach undue importance to
the outward aspect of conduct, pp. 226-231.--Explanation of all these
facts, pp. 231-237.--The great influence which the outward event
exercises upon moral estimates even among ourselves, pp. 238-240.
--Carelessness generally not punished if no injurious result
follows, p. 241.--An unsuccessful attempt to commit a criminal act, if
punished at all, as a rule punished much less {xii} severely than the
accomplished act, p. 241 _sq._--Exceptions to this rule, p. 242.--The
question, which attempts should be punished, p. 243.--The stage at
which an attempt begins to be criminal, and the distinction between
attempts and acts of preparation, p. 243 _sq._--The rule that an
outward event is requisite for the infliction of punishment, p. 244
_sq._--Exceptions to this rule, p. 245.--Explanation of laws referring
to unsuccessful attempts, pp. 245-247.--Moral approval influenced by
external events, p. 247.--Owing to its very nature, the moral
consciousness, when sufficiently influenced by thought, regards the
will as the only proper object of moral disapproval or praise,
p. 247 _sq._
CHAPTER X
AGENTS UNDER INTELLECTUAL DISABILITY
An agent not responsible for anything which he could not be aware of,
p. 249.--The irresponsibility of animals, pp. 249-251.--Resentment
towards an animal which has caused some injury, p. 251.--At the lower
stages of civilisation animals deliberately treated as responsible
beings, _ibid._--The custom of blood-revenge extended to the animal
world, pp. 251-253.--Animals exposed to regular punishment, pp. 253-255.
--The origin of the mediæval practice of punishing animals, p. 255 _sq._
--Explanation of the practice of retaliating upon animals, pp. 256-260.
--At the earlier stages of civilisation even inanimate things treated
as if they were responsible agents, pp. 260-262.--Explanation
of this, pp. 262-264.--The total or partial irresponsibility of
childhood and early youth, pp. 264-267.--According to early custom,
children sometimes subject to the rule of retaliation, p. 267.
--Parents responsible for the deeds of their children, p. 267
_sq._--In Europe there has been a tendency to raise the age at which
full legal responsibility commences, p. 268 _sq._--The irresponsibility
of idiots and madmen, p. 269 _sq._--Idiots and insane persons objects
of religious reverence, p. 270 _sq._--Lunatics treated with great
severity or punished for their deeds, pp. 271-274.--Explanation of
this, p. 274 _sq._--The ignorance of which lunatics have been victims
in the hands of lawyers, pp. 275-277.--The total or partial
irresponsibility of intoxicated persons, p. 277 _sq._--Drunkenness
recognised as a ground of extenuation, pp. 278-280.--Not recognised as
a ground of extenuation, p. 280 _sq._--Explanation of these facts,
p. 281 _sq._
CHAPTER XI
MOTIVES
Motives considered only in proportion as the moral judgment is
influenced by reflection, p. 283.--Little consideration for the sense
of duty as a motive, _ibid._--Somewhat greater discrimination shown in
regard to motives consisting of powerful non-volitional conations,
p. 283 _sq._--Compulsion as a ground of extenuation, p. 284
_sq._--"Compulsion by necessity," pp. 285-287.--Self-defence,
pp. 288-290.--Self-redress in the case of adultery, and other survivals of
the old system of self-redress, pp. 290-294.--The moral distinction
made between an injury which a person inflicts deliberately, in cold
blood, and one which he inflicts in the heat of the moment, on
provocation, pp. 294-297.--Explanation of this distinction, p. 297
_sq._--The pressure of a non-volitional motive on the will as a ground
of extenuation, p. 298 _sq._--That moral judgments are generally
passed, in the first instance, with reference to acts immediately
intended, and consider motives only in proportion as the judgment is
influenced by reflection, holds good not only of moral blame, but of
moral praise, pp. 299-302.
{xiii} CHAPTER XII
FORBEARANCES AND CARELESSNESS--CHARACTER
Why in early moral codes the so-called negative commandments are much
more prominent than the positive commandments, p. 303.--The little
cognisance which the criminal laws of civilised nations take of
forbearances and omissions, p. 303 _sq._--The more scrutinising the
moral consciousness, the greater the importance which it attaches to
positive commandments, p. 304 _sq._--Yet the customs of all nations
contain not only prohibitions, but positive injunctions as well, p.
305.--The unreflecting mind apt to exaggerate the guilt of a person
who out of heedlessness or rashness causes harm by a positive act,
_ibid._--Early custom and law may be anxious enough to trace an event
to its source, pp. 305-307.--But they easily fail to discover where
there is guilt or not, and, in case of carelessness, to determine the
magnitude of the offender's guilt, p. 307 _sq._--The opinion that a
person is answerable for all the damage which directly ensues from an
act of his, even though no foresight could have reasonably been
expected to look out for it, p. 308 _sq._--On the other hand, little
or no censure passed on him whose want of foresight or want of
self-restraint is productive of suffering, if only the effect is
sufficiently remote, p. 309 _sq._--The moral emotions may as naturally
give rise to judgments on human character as to judgments on human
conduct, p. 310.--Even when a moral judgment immediately refers to a
distinct act, it takes notice of the agent's will as a whole, p. 310
_sq._--The practice of punishing a second or third offence more
severely than the first, p. 311 _sq._--The more a moral judgment is
influenced by reflection, the more it scrutinises the character which
manifests itself in that individual piece of conduct by which the
judgment is occasioned, p. 312 _sq._--But however superficial it be,
it always refers to a will conceived of as a continuous entity, p. 313.
CHAPTER XIII
WHY MORAL JUDGMENTS ARE PASSED ON CONDUCT AND CHARACTER--MORAL
VALUATION AND FREE-WILL
Explanation of the fact that moral judgments are passed on conduct and
character, p. 314.--The correctness of this explanation proved by the
circumstance that not only moral emotions, but non-moral retributive
emotions as well, are felt with reference to phenomena exactly similar
in nature to those on which moral judgments are passed,
pp. 314-319.--Whether moral or non-moral, a retributive emotion is
essentially directed towards a sensitive and volitional entity, or
self, conceived of as the cause of pleasure or the cause of pain,
p. 319.--The futility of other attempts to solve the problem, p. 319
_sq._--The nature of the moral emotions also gives us the key to the
problem of the co-existence of moral responsibility with the general
law of cause and effect, p. 320.--The theory according to which
responsibility, in the ordinary sense of the term, and moral judgments
generally, are inconsistent with the notion that the human will is
determined by causes, p. 320 _sq._--Yet, as a matter of fact, moral
indignation and moral approval are felt by determinists and
libertarians alike, p. 321 _sq._--Explanation of the fallacy which
lies at the bottom of the conception that moral valuation is
inconsistent with determinism, p. 322.--Causation confounded with
compulsion, pp. 322-324.--The difference between fatalism and
determinism, pp. 324-326.--The moral emotions not concerned with the
origin of the innate character, p. 326.
{xiv} CHAPTER XIV
PRELIMINARY REMARKS--HOMICIDE IN GENERAL
Necessity of restricting the investigation to the more important modes
of conduct with which the moral consciousness is concerned, p. 327
_sq._--The six groups into which these modes of conduct may be
divided, p. 328.--The most sacred duty which we owe to our
fellow-creatures generally considered to be regard for their lives,
_ibid._--Among various uncivilised peoples human life said to be held
very cheap, p. 328 _sq._--Among others homicide or murder said to be
hardly known, p. 329 _sq._--In other instances homicide expressly said
to be regarded as wrong, p. 330 _sq._--In every society custom
prohibits homicide within a certain circle of men, p. 331.--Savages
distinguish between an act of homicide committed within their own
community and one where the victim is a stranger, pp. 331-333.--In
various instances, however, the rule, "Thou shalt not kill," applies
even to foreigners, p. 333 _sq._--Some uncivilised peoples said to
have no wars, p. 334.--Savages' recognition of intertribal rights in
times of peace obvious from certain customs connected with their wars,
p. 334 _sq._--Savage custom does not always allow indiscriminate
slaughter even in warfare, p. 335 _sq._--The readiness with which
savages engage in war, p. 337.--The old distinction between injuries
committed against compatriots and harm done to foreigners remains
among peoples more advanced in culture, p. 337 _sq._--The readiness
with which such peoples wage war on foreign nations, and the
estimation in which the successful warrior is held, pp. 338-340.--The
life of a guest sacred, p. 340.--The commencement of international
hostilities preceded by special ceremonies, _ibid._--Warfare in some
cases condemned, or a distinction made between just and unjust war,
pp. 340-342.--Even in war the killing of an enemy under certain
circumstances prohibited, either by custom or by enlightened moral
opinion, pp. 342-344.
CHAPTER XV
HOMICIDE IN GENERAL (_continued_)
Homicide of any kind condemned by the early Christians, p. 345.--Their
total condemnation of warfare, p. 345 _sq._--This attitude towards war
was soon given up, pp. 346-348.--The feeling that a soldier scarcely
could make a good Christian, p. 348.--Penance prescribed for those who
had shed blood in war, p. 348 _sq._--Wars forbidden by popes, p. 349.
--The military Christianity of the Crusades, pp. 348-352.--Chivalry,
pp. 352-354.--The intimate connection between chivalry and religion
displayed in tournaments, p. 354 _sq._--The practice of private war,
p. 355 _sq._--The attitude of the Church towards private war, p.
356.--The Truce of God, p. 357.--The main cause of the abolition of
private war was the increase of the authority of emperors or kings,
p. 357 _sq._--War looked upon as a judgment of God, p. 358.--The attitude
adopted by the great Christian congregations towards war one of
sympathetic approval, pp. 359-362.--Religious protests against war,
pp. 362-365.--Freethinkers' opposition to war, pp. 365-367.--The idea
of a perpetual peace, p. 367.--The awakening spirit of nationalism,
and the glorification of war, p. 367 _sq._--Arguments against
arbitration, p. 368.--The opposition against war rapidly increasing,
p. 368 _sq._--The prohibition of needless destruction in war, p. 369
_sq._--The survival, in modern civilisation, of the old feeling that
the life of a foreigner is not equally sacred with that of a
countryman, p. 370.--The behaviour of European colonists towards
coloured races, p. 370 _sq._
{xv} CHAPTER XVI
HOMICIDE IN GENERAL (_concluded_)
Sympathetic resentment felt on account of the injury suffered by the
victim a potent cause of the condemnation of homicide, p. 372
_sq._--No such resentment felt if the victim is a member of another
group, p. 373.--Why extra-tribal homicide is approved of,
_ibid._--Superstition an encouragement to extra-tribal homicide,
_ibid._--The expansion of the altruistic sentiment largely explains
why the prohibition of homicide has come to embrace more and more
comprehensive circles of men, _ibid._--Homicide viewed as an injury
inflicted upon the survivors, p. 373 _sq._--Conceived as a breach of
the "King's peace," p. 374.--Stigmatised as a disturbance of public
tranquillity and an outrage on public safety, _ibid._--Homicide
disapproved of because the manslayer gives trouble to his own people,
p. 374 _sq._--The idea that a manslayer is unclean, pp. 375-377.--The
influence which this idea has exercised on the moral judgment of
homicide, p. 377.--The disapproval of the deed easily 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, p. 377 _sq._--The notion of a
persecuting ghost may be replaced by the notion of an avenging god,
pp. 378-380.--The defilement resulting from homicide particularly
shunned by gods, p. 380 _sq._--Priests forbidden to shed human blood,
p. 381 _sq._--Reasons for Christianity's high regard for human life,
p. 382.
CHAPTER XVII
THE KILLING OF PARENTS, SICK PERSONS, CHILDREN-FETICIDE
Parricide the most aggravated form of murder, pp. 383-386.--The custom
of abandoning or killing parents who are worn out with age or disease,
p. 386 _sq._--Its causes, pp. 387-390.--The custom of abandoning or
killing persons suffering from some illness, p. 391 _sq._--Its causes,
p. 392 _sq._--The father's power of life and death over his children,
p. 393 _sq._--Infanticide among many savage races permitted or even
enjoined by custom, pp. 394-398.--The causes of infanticide, and how
it has grown into a regular custom, pp. 398-402.--Among many savages
infanticide said to be unheard of or almost so, p. 402 _sq._--The
custom of infanticide not a survival of earliest savagery, but seems
to have grown up under specific conditions in later stages of
development, p. 403.--Savages who disapprove of infanticide, p. 403
_sq._--The custom of infanticide in most cases requires that the child
should be killed immediately or soon after its birth, p. 404
_sq._--Infanticide among semi-civilised or civilised races,
pp. 405-411.--The practice of exposing new-born infants vehemently
denounced by the early Fathers of the Church, p. 411.--Christian
horror of infanticide, p. 411 _sq._--The punishment of infanticide in
Christian countries, p. 412 _sq._--Feticide among savages, p. 413
_sq._--Among more civilised nations, p. 414 _sq._--According to
Christian views, a form of murder, p. 415 _sq._--Distinctions between
an _embryo informatus_ and an _embryo formatus_, p. 416 _sq._--Modern
legislation and opinion concerning feticide, p. 417.
CHAPTER XVIII
THE KILLING OF WOMEN, AND OF SLAVES--THE CRIMINALITY OF HOMICIDE
INFLUENCED BY DISTINCTIONS OF CLASS
The husband's power of life and death over his wife among many of the
lower races, p. 418 _sq._--The right of punishing his wife capitally
not universally {xvi} granted to the husband in uncivilised
communities, p. 419.--The husband's power of life and death among
peoples of a higher type, _ibid._--Uxoricide punished less severely
than matricide, p. 419 _sq._--The estimate of a woman's life sometimes
lower than that of a man's, sometimes equal to it, sometimes higher,
p. 420 _sq._--The master's power of life and death over his slave,
p. 421 _sq._--The right, among many savages, of killing his slave at his
own discretion expressly denied to the master, p. 422 _sq._--The
murder of another person's slave largely regarded as an offence
against the property of the owner, but not exclusively looked upon in
this light, p. 423.--When the system of blood-money prevails, the
price paid for the life of a slave less than that paid for the life of
a freeman, _ibid._--Among the nations of archaic culture, also, the
life of a slave held in less estimation than that of a freeman, but
not even the master in all circumstances allowed to put his slave to
death, pp. 423-426.--Efforts of the Christian Church to secure the
life of the slave against the violence of the master, p. 426.--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, pp. 426-428.--In modern times, in Christian countries, the life
of the negro slave was only inadequately protected by law, p. 428
_sq._--Why the life of a slave is held in so little regard,
p. 429.--The killing of a freeman by a slave, especially if the victim
be his owner, commonly punished more severely than if the same act were
done by a free person, p. 429 _sq._--In the estimate of life a
distinction also made between different classes of freemen, p. 430
_sq._--The magnitude of the crime may depend not only on the rank of
the victim, but on the rank of the manslayer as well, pp. 431-433.
--Explanation of this influence of class, p. 433.--In progressive
societies each member of the society at last admitted to
be born with an equal claim to the right to live, _ibid._
CHAPTER XIX
HUMAN SACRIFICE
The prevalence of human sacrifice, pp. 434-436.--This practice much
more frequently found among barbarians and semi-civilised peoples than
among genuine savages, p. 436 _sq._--Among some peoples it has been
noticed to become increasingly prevalent in the course of time,
p. 437.--Human sacrifice partly due to the idea that gods have an
appetite for human flesh or blood, p. 437 _sq._--Sometimes connected
with the idea that gods require attendants, p. 438.--Moreover, an
angry god may be appeased simply by the death of him or those who
aroused his anger, or of some representative of the offending
community, or of somebody belonging to the kin of the offender, pp.
438-440.--Human sacrifice chiefly a method of life-insurance, based on
the idea of substitution, p. 440.--Human victims offered in war,
before a battle, or during a siege, p. 440 _sq._--For the purpose of
stopping or preventing epidemics, p. 441 _sq._--For the purpose of
putting an end to a devastating famine, p. 442 _sq._--For the purpose
of preventing famine, p. 443 _sq._--Criticism of Dr. Frazer's
hypothesis that the human victim who is killed for the purpose of
ensuring good crops is regarded as a representative of the corn-spirit
and is slain as such, pp. 444-451.--Human victims offered with a view
to getting water, p. 451 _sq._--With a view to averting perils arising
from the sea or from rivers, pp. 452-454.--For the purpose of
preventing the death of some particular individual, especially a chief
or a king, from sickness, old age, or other circumstances, pp.
454-457.--For the purpose of helping other men into existence, p. 457
_sq._--The killing of the first-born child, or the first-born son,
p. 458 _sq._--Explanation of this practice, pp. 459-461.--Human
sacrifices offered in connection with the foundation of buildings,
p. 461 _sq._--The building-sacrifice, like other kinds of human
sacrifice, probably based on the idea of substitution, pp.462-464.
--The belief that {xvii} the soul of the victim is converted
into a protecting demon, p. 464 _sq._--The human victim regarded as a
messenger, p. 465 _sq._--Human sacrifice not an act of wanton cruelty,
p. 466.--The king or chief sometimes sacrificed, _ibid._--The victims
frequently prisoners of war or other aliens, or slaves, or criminals,
pp. 466-468.--The disappearance of human sacrifice, p. 468.--Human
sacrifice condemned, p. 465 _sq._--Practices intended to replace it,
p. 469.--Human effigies or animals offered instead of men, p. 469
_sq._--Human sacrifices succeeded by practices involving the effusion
of human blood without loss of life, p. 470.--Bleeding or mutilation
practised for the same purpose as human sacrifice, p. 470 _sq._--Why
the penal sacrifice of offenders has outlived all other forms of human
sacrifice, p. 471.--Human beings sacrificed to the dead in order to
serve them as slaves, wives, or companions, pp. 472-474.--This custom
dwindling into a survival, p. 475.--The funeral sacrifice of men and
animals also seems to involve an intention to vivify the spirits of
the deceased with blood, p. 475 _sq._--Manslayers killed in order to
satisfy their victims' craving for revenge, p. 476.
CHAPTER XX
BLOOD-REVENGE AND COMPENSATION--THE PUNISHMENT OF DEATH
The prevalence of the custom of blood-revenge, pp. 477-479.--Blood-revenge
regarded not only as a right, but as a duty, p. 479 _sq._--This duty
in the first place regarded as a duty to the dead, whose spirit is
believed to find no rest after death until the injury has been
avenged, p. 481 _sq._--Blood-revenge a form of human sacrifice,
p. 482.--Blood-revenge also practised on account of the injury inflicted
on the survivors, p. 482 _sq._--Murder committed within the family or
kin left unavenged, p. 483.--The injury inflicted on the relatives of
the murdered man suggests not only revenge, but reparation,
_ibid._--The taking of life for life may itself, in a way, serve as
compensation, p. 483 _sq._--Various methods of compensation,
p. 484.--The advantages of the practice of composition, p. 484 _sq._--Its
disadvantages, p. 485.--The importance of these disadvantages depends
on the circumstances in each special case, p. 486 _sq._--Among many
peoples the rule of revenge strictly followed, and to accept
compensation considered disgraceful, p. 487.--The acceptance of
compensation does not always mean that the family of the slain
altogether renounce their right of revenge, p. 487 _sq._--The
acceptance of compensation allowed as a justifiable alternative for
blood-revenge, or even regarded as the proper method of settling the
case, p. 488 _sq._--The system of compensation partly due to the
pressure of some intervening authority, p. 489 _sq._--The adoption of
this method for the settling of disputes a sign of weakness,
p. 491.--When the central power of jurisdiction is firmly established,
the rule of life for life regains its sway, _ibid._--A person may
forfeit his right to live by other crimes besides homicide, p. 491
_sq._--Opposition to and arguments against capital punishment,
pp. 492-495.--Modern legislation has undergone a radical change with
reference to capital punishment, p. 495.--Arguments against its
abolition, p. 495 _sq._--The chief motive for retaining it in modern
legislation, p. 496.
CHAPTER XXI
THE DUEL
Duelling resorted to as a means of bringing to an end hostilities
between different groups of people, p. 497 _sq._--Duels fought for the
purpose of settling disputes between individuals, either by conferring
on the victor the right of possessing {xviii} the object of the
strife, or by gratifying a craving for revenge and wiping off the
affront, pp. 498-502.--The circumstances to which these customs are
due, p. 503 _sq._--The duel as an ordeal or "judgment of God," p. 504
_sq._--The judicial duel fundamentally derived its efficacy as a means
of ascertaining the truth from its connection with an oath, p. 505
_sq._ How it came to be regarded as an appeal to the justice of God,
p. 506 _sq._--The decline and disappearance of the judicial duel,
p. 507.--The modern duel of honour, pp. 507-509.--Its causes,
p. 509.--Arguments adduced in support of it, p. 509 _sq._
CHAPTER XXII
BODILY INJURIES
In the case of bodily injuries the magnitude of the offence, other
things being equal, proportionate to the harm inflicted,
pp. 511-513.--The degree of the offence also depends on the station of
the parties concerned, and in some cases the infliction of pain held
allowable or even a duty, p. 513.--Children using violence against
their parents, _ibid._--Parents' right to inflict corporal punishment
on their children, p. 513 _sq._--The husband's right to chastise his
wife, pp. 514-516.--The master's right to inflict corporal punishment
on his slave, p. 516 _sq._--The maltreatment of another person's slave
regarded as an injury done to the master, rather than to the slave,
p. 517.--Slaves severely punished for inflicting bodily injuries on
freemen, p. 510.--The penalties or fines for bodily injuries
influenced by the class or rank of the parties when both of them are
freemen, p. 518 _sq._--Distinction between compatriots and aliens with
reference to bodily injuries, p. 519.--The infliction of sufferings on
vanquished enemies, p. 519 _sq._--The right to bodily integrity
influenced by religious differences, p. 520--Forfeited by the
commission of a crime, p. 520 _sq._--Amputation or mutilation of the
offending member has particularly been in vogue among peoples of
culture, p. 521 _sq._--The disappearance of corporal punishment in
Europe, p. 522.--Corporal punishment has been by preference a
punishment for poor and common people or slaves, p. 522 _sq._--The
status of a person influencing his right to bodily integrity with
reference to judicial torture, p. 523 _sq._--Explanation of the moral
notions regarding the infliction of bodily injuries, p. 524.--The
notions that an act of bodily violence involves a gross insult, and
that corporal punishment disgraces the criminal more than any other
form of penalty, p. 524 _sq._
CHAPTER XXIII
CHARITY AND GENEROSITY
The mother's duty to rear her children, p. 526.--The husband's and
father's duty to protect and support his family, pp. 526-529.--The
parents' duty of taking care of their offspring in the first place
based on the sentiment of parental affection, p. 529.--The
universality not only of the maternal, but of the paternal, sentiment
in mankind, pp. 529-532.--Marital affection among savages,
p. 532.--Explanation of the simplest paternal and marital duties,
p. 533--Children's duty of supporting their aged parents, pp. 533-538.
The duty of assisting brothers and sisters, p. 538.--Of assisting more
distant relatives, pp. 538-540.--Uncivilised peoples as a rule
described as kind towards members of their own community or tribe,
enjoin charity between themselves as a duty, and praise generosity as
a virtue, pp. 540-546.--Among many savages the old people, in
particular, have a claim to support and assistance, p. 546.--The sick
often carefully attended to, pp. 546-548.-- {xix} Accounts of
uncharitable savages, p. 548 _sq._--Among semi-civilised and civilised
nations charity universally regarded as a duty, and often strenuously
enjoined by their religions, pp. 549-556.--In the course of
progressing civilisation the obligation of assisting the needy has
been extended to wider and wider circles of men, pp. 556-558.--The
duty of tending wounded enemies in war, p. 558.--Explanation of the
gradual expansion of the duty of charity, p. 559.--This duty in the
first place based on the altruistic sentiment, p. 559 _sq._--Egoistic
motives for the doing of good to fellow-creatures, p. 560.--By
niggardliness a person may expose himself to supernatural dangers,
pp. 560-562.--Liberality may entail supernatural reward, p. 562 _sq._
--The curses and blessings of the poor partly account for the fact that
charity has come to be regarded as a religious duty, pp. 563-565.--The
chief cause of the extraordinary stress which the higher religions put
on the duty of charity seems to lie in the connection between
almsgiving and sacrifice, the poor becoming the natural heirs of the
god, p. 565.--Instances of sacrificial food being left for, or
distributed among, the poor, p. 565 _sq._--Almsgiving itself regarded
as a form of sacrifice, or taking the place of it, pp. 566-569.
CHAPTER XXIV
HOSPITALITY
Instances of great kindness displayed by savages towards persons of a
foreign race, pp. 570-572.--Hospitality a universal custom among the
lower races and among the peoples of culture at the earlier stages of
their civilisation, pp. 572-574.--The stranger treated with special
marks of honour, and enjoying extraordinary privileges as a guest,
pp. 574-576.--Custom may require that hospitality should be shown even
to an enemy, p. 576 _sq._--To protect a guest looked upon as a most
stringent duty, p. 577 _sq._--Hospitality in a remarkable degree
associated with religion, pp. 578-580.--The rules of hospitality in
the main based on egoistic considerations, p. 581.--The stranger,
supposed to bring with him good luck or blessings, pp. 581-583.--The
blessings of a stranger considered exceptionally powerful, p. 583
_sq._--The visiting stranger regarded as a potential source of evil,
p. 584.--His evil wishes and curses greatly feared, owing partly to
his quasi-supernatural character, partly to the close contact in which
he comes with the host and his belongings, pp. 584-590.--Precautions
taken against the visiting stranger, pp. 590-593.--Why no payment is
received from a guest, p. 593 _sq._--The duty of hospitality limited
by time, p. 594 _sq._--The cause of this, p. 595 _sq._--The decline of
hospitality in progressive communities, p. 596.
CHAPTER XXV
THE SUBJECTION OF CHILDREN
The right of personal freedom never absolute, p. 597.--Among some
savages a man's children are in the power of the head of their
mother's family or of their maternal uncle, p. 597 _sq._--Among the
great bulk of existing savages children are in the power of their
father, though he may to some extent have to share his authority with
the mother, p. 598 _sq._--The extent of the father's power subject to
great variations, p. 599.--Among some savages the father's authority
practically very slight, p. 599 _sq._--Other savages by no means
deficient in filial piety, p. 600 _sq._--The period during which the
paternal authority lasts, p. 601 _sq._--Old age commands respect and
gives authority, pp. 603-605.--Superiority of age also gives a certain
amount {xx} of power, p. 605 _sq._--The reverence for old age may
cease when the grey-head becomes an incumbrance to those around him,
and imbecility may put an end to the father's authority over his
family, p. 606 _sq._--Paternal, or parental, authority and filial
reverence at their height among peoples of archaic culture,
pp. 607-613.--Among these peoples we also meet with reverence for the
elder brother, for persons of a superior age generally, and especially
for the aged, p. 614 _sq._--Decline of the paternal authority in
Europe, p. 615 _sq._--Christianity not unfavourable to the
emancipation of children, though obedience to parents was enjoined as
a Christian duty, p. 616 _sq._--The Roman notions of paternal rights
and filial duties have to some extent survived in Latin countries,
p. 617 _sq._--Sources of the parental authority, p. 618 _sq._--Among
savages, in particular, filial regard is largely regard for one's
elders or the aged, p. 619.--Causes of the regard for old age,
pp. 619-621.--The chief cause of the connection between filial
submissiveness and religious beliefs the extreme importance attached
to parental curses and blessings, pp. 621-626.--Why the blessings and
curses of parents are supposed to possess an unusual power, p. 626
_sq._--Explanation of the extraordinary development of the paternal
authority in the archaic State, p. 627 _sq._--Causes of the downfall
of the paternal power, p. 628.
CHAPTER XXVI
THE SUBJECTION OF WIVES
Among the lower races the wife frequently said to be the property or
slave of her husband, p. 629 _sq._--Yet even in such cases custom has
not left her entirely destitute of rights, p. 630 _sq._--The so-called
absolute authority of husbands over their wives not to be taken too
literally, p. 631 _sq._--The bride-price does not _eo ipso_ confer on
the husband absolute rights over her, p. 632 _sq._--The hardest
drudgeries of life often said to be imposed on the women, p. 633
_sq._--In early society each sex has its own pursuits, p. 634.--The
rules according to which the various occupations of life are divided
between the sexes are on the whole in conformity with the indications
given by nature, p. 635 _sq._--This division of labour emphasised by
custom and superstition, p. 636 _sq._--It is apt to mislead the
travelling stranger, p. 637.--It gives the wife authority within the
circle which is exclusively her own, _ibid._--Rejection of the broad
statement that the lower races in general hold their women in a state
of almost complete subjection, pp. 638-646.--The opinion that a
people's civilisation may be measured by the position held by the
women not correct, at least so far as the earlier stages of culture
are concerned, p. 646 _sq._--The position of woman among the peoples
of archaic civilisation, pp. 647-653.--Christianity tended to narrow
the remarkable liberty granted to married women under the Roman
Empire, p. 653 _sq._--Christian orthodoxy opposed to the doctrine that
marriage should be a contract on the footing of perfect equality
between husband and wife, p. 654 _sq._--Criticism of the hypothesis
that the social _status_ of women is connected with the system of
tracing descent, p. 655 _sq._--The authority of a husband who lives
with his wife in the house or community of her father, p. 656
_sq._--Wives' subjection to their husbands in the first place due to
the men's instinctive desire to exert power, and to the natural
inferiority of women in such qualities of body and mind as are
essential for personal independence, p. 657.--Elements in the sexual
impulse which lead to domination on the part of the man and to
submission on the part of the woman, p. 657 _sq._--But if the man's
domination is carried beyond the limits of female love, the woman
feels it as a burden, p. 658 _sq._--In extreme cases of oppression, at
any rate, the community at large would sympathise with her, and the
public resentment against the oppressor would result in customs or
laws limiting the {xxi} husband's rights, p. 659.--The offended woman
may count upon the support of her fellow-sisters, _ibid._--The
children's affection and regard for their mother gives her power,
_ibid._--The influence which economic conditions exercise on the
position of woman, pp. 659-661.--The status of wives connected with
the ideas held about the female sex in general, p. 661.--Woman
regarded as intellectually and morally vastly inferior to man,
especially among nations more advanced in culture, pp. 661-663.
--Progress in civilisation has exercised an unfavourable influence
on the position of woman by widening the gulf between the sexes,
p. 663.--Religion has contributed to her degradation by regarding her
as unclean, p. 663 _sq._--Women excluded from religious worship and
sacred functions, pp. 664-666.--The notion that woman is unclean,
however, gives her a secret power over her husband, as women are
supposed to be better versed in magic than men, pp. 666-668.--The
curses of women greatly feared, p. 668.--Woman as an asylum, p. 668
_sq._--In archaic civilisation the _status_ of married women was
affected by the fact that the house-father was invested with some part
of the power which formerly belonged to the clan, p. 669.--Causes of
the decrease of the husband's authority over his wife in modern
civilisation, _ibid._
CHAPTER XXVII
SLAVERY
Definition of slavery, p. 670 _sq._--The distribution of slavery and
its causes among savages, pp. 671-674.--The earliest source of slavery
was probably war or conquest, p. 674 _sq._--Intra-tribal slavery among
savages, p. 675 _sq._--The master's power over his slave among
slave-holding savages, pp. 676-678.--Among the lower races slaves are
generally treated kindly, pp. 678-680.--Intra-tribal slaves,
especially such as are born in the house, generally treated better
than extra-tribal or purchased slaves, p. 680 _sq._--Slavery among the
nations of archaic culture, pp. 681-693.--The attitude of Christianity
towards slavery, pp. 693-700.--The supposed causes of the extinction
of slavery in Europe, pp. 697-701.--The chief cause the transformation
of slavery into serfdom, p. 701.--Serfdom only a transitory condition
leading up to a state of entire liberty, pp. 701-703.--The attitude of
the Church towards serfdom, p. 703 _sq._--The negro slavery in the
colonies of European countries and the Southern States of America, and
the legislation relating to it, pp. 704-711.--The support given to it
by the clergy, pp. 711-713.--The want of sympathy for, or positive
antipathy to, the coloured race, p. 713 _sq._--The opinions regarding
slavery and the condition of slaves influenced by altruistic
considerations, p. 714 _sq._--The condition of slaves influenced by
the selfish considerations of their masters, p. 715 _sq._
THE ORIGIN AND DEVELOPMENT
OF THE MORAL IDEAS
THE ORIGIN AND DEVELOPMENT
OF THE MORAL IDEAS
INTRODUCTORY
THE main object of this book will perhaps be best explained by a few
words concerning its origin.
Its author was once discussing with some friends the point how far a
bad man ought to be treated with kindness. The opinions were divided,
and, in spite of much deliberation, unanimity could not be attained.
It seemed strange that the disagreement should be so radical, and the
question arose, Whence this diversity of opinion? Is it due to
defective knowledge, or has it a merely sentimental origin? And the
problem gradually expanded. Why do the moral ideas in general differ
so greatly? And, on the other hand, why is there in many cases such a
wide agreement? Nay, why are there any moral ideas at all?
Since then many years have passed, spent by the author in trying to
find an answer to these questions. The present work is the result of
his researches and thoughts.
The first part of it will comprise a study of the moral concepts:
right, wrong, duty, justice, virtue, merit, &c. Such a study will be
found to require an examination into the moral emotions, their nature
and origin, as also into the relations between these emotions and the
various {2} moral concepts. There will then be a discussion of the
phenomena to which such concepts are applied--the subjects of moral
judgments. The general character of these phenomena will be
scrutinised, and an answer sought to the question why facts of a
certain type are matters of moral concern, while other facts are not.
finally, the most important of these phenomena will be classified, and
the moral ideas relating to each class will be stated, and, so far as
possible, explained.
An investigation of this kind cannot be confined to feelings and ideas
prevalent in any particular society or at any particular stage of
civilisation. Its subject-matter is the moral consciousness of mankind
at large. It consequently involves the survey of an unusually rich and
varied field of research--psychological, ethnographical, historical,
juridical, theological. In the present state of our knowledge, when
monographs on most of the subjects involved are wanting, I presume
that such an undertaking is, strictly speaking, too big for any man;
at any rate it is so for the writer of this book. Nothing like
completeness can be aimed at. Hypotheses of varying degrees of
probability must only too often be resorted to. Even the certainty of
the statements on which conclusions are based is not always beyond a
doubt. But though fully conscious of the many defects of his attempt,
the author nevertheless ventures to think himself justified in placing
it before the public. It seems to him that one of the most important
objects of human speculation cannot be left in its present state of
obscurity; that at least a glimpse of light must be thrown upon it by
researches which have extended over some fifteen years; and that the
main principles underlying the various customs of mankind may be
arrived at even without subjecting these customs to such a full and
minute treatment as would be required of an anthropological
monograph.
Possibly this essay, in spite of its theoretical character, may even
be of some practical use. Though rooted in the emotional side of our
nature, our moral {3} opinions are in a large measure amenable to
reason. Now in every society the traditional notions as to what is
good or bad, obligatory or indifferent, are commonly accepted by the
majority of people without further reflection. By tracing them to
their source it will be found that not a few of these notions have
their origin in sentimental likings and antipathies, to which a
scrutinising and enlightened judge can attach little importance;
whilst, on the other hand, he must account blamable many an act and
omission which public opinion, out of thoughtlessness, treats with
indifference. It will, moreover, appear that a moral estimate often
survives the cause from which it sprang. And no unprejudiced person
can help changing his views if he be persuaded that they have no
foundation in existing facts.
CHAPTER I
THE EMOTIONAL ORIGIN OF MORAL JUDGMENTS
THAT the moral concepts are ultimately based on emotions either of
indignation or approval, is a fact which a certain school of thinkers
have in vain attempted to deny. The terms which embody these concepts
must originally have been used--indeed they still constantly are so
used--as direct expressions of such emotions with reference to the
phenomena which evoked them. Men pronounced certain acts to be good or
bad on account of the emotions those acts aroused in their minds, just
as they called sunshine warm and ice cold on account of certain
sensations which they experienced, and as they named a thing pleasant
or painful because they felt pleasure or pain. But to attribute a
quality to a thing is never the same as merely to state the existence
of a particular sensation or feeling in the mind which perceives it.
Such an attribution must mean that the thing, under certain
circumstances, makes a certain impression on the mind. By calling an
object warm or pleasant, a person asserts that it is apt to produce in
him a sensation of heat or a feeling of pleasure. Similarly, to name
an act good or bad, ultimately implies that it is apt to give rise to
an emotion of approval or disapproval in him who pronounces the
judgment. Whilst not affirming the actual existence of any specific
emotion in the mind of the person judging or of anybody else, the
predicate of a moral judgment attributes to the subject a tendency to
arouse an emotion. The moral {5} concepts, then, are essentially
generalisations of tendencies in certain phenomena to call forth moral
emotions.
However, as is frequently the case with general terms, these concepts
are mentioned without any distinct idea of their contents. The
relation in which many of them stand to the moral emotions is
complicated; the use of them is often vague; and ethical theorisers,
instead of subjecting them to a careful analysis, have done their best
to increase the confusion by adapting the meaning of the terms to fit
their theories. Very commonly, in the definition of the goodness or
badness of acts, reference is made, not to their tendencies to evoke
emotions of approval or indignation, but to the causes of these
tendencies, that is, to those qualities in the acts which call forth
moral emotions. Thus, because good acts generally produce pleasure and
bad acts pain, goodness and badness have been identified with the
tendencies of acts to produce pleasure or pain. The following
statement of Sir James Stephen is a clearly expressed instance of this
confusion, so common among utilitarians:--"Speaking generally, the
acts which are called right do promote, or are supposed to promote
general happiness, and the acts which are called wrong do diminish, or
are supposed to diminish it. I say, therefore, that this is what the
words 'right' and 'wrong' mean, just as the words 'up' and 'down' mean
that which points from or towards the earth's centre of gravity,
though they are used by millions who have not the least notion of the
fact that such is their meaning, and though they were used for
centuries and millenniums before any one was or even could be aware of
it."[1] So, too, Bentham maintained that words like "ought," "right,"
and "wrong," have no meaning unless interpreted in accordance with the
principle of utility;[2] and James Mill was of opinion that "the very
morality" of the act lies, not in the sentiments raised in the breast
of him who perceives or contemplates it, but in "the consequences of
the act, good or evil, and their being {6} within the intention of the
agent."[3] He adds that a rational assertor of the principle of
utility approves of an action "because it is good," and calls it good
"because it conduces to happiness."[4] This, however, is to invert the
sequence of the facts, since, properly speaking, an act is called good
because it is approved of, and is approved of by an utilitarian in so
far as it conduces to happiness.
[Footnote 1: Stephen, _Liberty_, _Equality_, _Fraternity_, p. 338.]
[Footnote 2: Bentham, _Principles of Morals and Legislation_, p. 4.]
[Footnote 3: James Mill, _Fragment on Mackintosh_, pp. 5, 376.]
[Footnote 4: _Ibid._ p. 368.]
Such confusion of terms cannot affect the real meaning of the moral
concepts. It is true that he who holds that "actions are right in
proportion as they tend to promote happiness, wrong as they tend to
produce the reverse of happiness,"[5] may, by a merely intellectual
process, pass judgment on the moral character of particular acts; but,
if he is an utilitarian from conviction, his first principle, at
least, has an emotional origin. The case is similar with many of the
moral judgments ordinarily passed by men. They are applications of
some accepted general rule: conformity or non-conformity to the rule
decides the rightness or wrongness of the act judged of. But whether
the rule be the result of a person's independent deductions, or be
based upon authority, human or divine, the fact that his moral
consciousness recognises it as valid implies that it has an emotional
sanction in his own mind.
[Footnote 5: Stuart Mill, _Utilitarianism_, p. 9 _sq._]
Whilst the import of the predicate of a moral judgment may thus in
every case be traced back to an emotion in him who pronounces the
judgment, it is generally assumed to possess the character of
universality or "objectivity" as well. The statement that an act is
good or bad does not merely refer to an individual emotion; as will be
shown subsequently, it always has reference to an emotion of a more
public character. Very often it even implies some vague assumption
that the act must be recognised as good or bad by everybody who
possesses a sufficient knowledge of the case and of all attendant
circumstances, and who has a "sufficiently developed" {7} moral
consciousness. We are not willing to admit that our moral convictions
are a mere matter of taste, and we are inclined to regard convictions
differing from our own as errors. This characteristic of our moral
judgments has been adduced as an argument against the emotionalist
theory of moral origins, and has led to the belief that the moral
concepts represent qualities which are discerned by reason.
Cudworth, Clarke, Price, and Reid are names which recall to our mind a
theory according to which the morality of actions is perceived by the
intellect, just as are number, diversity, causation, proportion.
"Morality is eternal and immutable," says Richard Price. "Right and
wrong, it appears, denote what actions are. Now whatever any thing is,
that it is, not by will, or degree, or power, but by nature and
necessity. Whatever a triangle or circle is, that it is unchangeably
and eternally. . . . The same is to be said of right and wrong, of
moral good and evil, as far as they express real characters of
actions. They must immutably and necessarily belong to those actions
of which they are truly affirmed."[6] And as having a real existence
outside the mind, they can only be discerned by the understanding. It
is true that this discernment is accompanied with an emotion: "Some
impressions of pleasure or pain, satisfaction or disgust, generally
attend our perceptions of virtue and vice. But these are merely their
effects and concomitants, and not the perceptions themselves, which
ought no more to be confounded with them, than a particular truth
(like that for which Pythagoras offered a hecatomb) ought to be
confounded with the pleasure that may attend the discovery of it."[7]
[Footnote 6: Price, _Review of the Principal Questions in Morals_, pp.
63, 74 _sq._]
[Footnote 7: _Ibid._ p. 63.]
According to another doctrine, the moral predicates, though not
regarded as expressions of "theoretical" truth, nevertheless derive
all their import from reason from "practical" or "moral" reason, as it
is variously {8} called. Thus Professor Sidgwick holds that the
fundamental notions represented by the word "ought" or "right," which
moral judgments contain expressly or by implication, are essentially
different from all notions representing facts of physical or psychical
experience, and he refers such judgments to the "reason," understood
as a faculty of cognition. By this he implies "that what ought to be
is a possible object of knowledge, _i.e._, that what I judge ought to
be, must, unless I am in error, be similarly judged by all rational
beings who judge truly of the matter." The moral judgments contain
moral _truths_, and "cannot legitimately be interpreted as judgments
respecting the present or future existence of human feelings or any
facts of the sensible world."[8]
[Footnote 8: Sidgwick, _Methods of Ethics_, pp. 25, 33 _sq._]
Yet our tendency to objectivise the moral judgments is no sufficient
ground for referring them to the province of reason. If, in this
respect, there is a difference between these judgments and others that
are rooted in the subjective sphere of experience, it is, largely, a
difference in degree rather than in kind. The aesthetic judgments,
which indisputably have an emotional origin, also lay claim to a
certain amount of "objectivity." By saying of a piece of music that it
is beautiful, we do not merely mean that it gives ourselves aesthetic
enjoyment, but we make a latent assumption that it must have a similar
effect upon everybody who is sufficiently musical to appreciate it.
This objectivity ascribed to judgments which have a merely subjective
origin springs in the first place from the similarity of the mental
constitution of men, and, generally speaking, the tendency to regard
them as objective is greater in proportion as the impressions vary
less in each particular case. If "there is no disputing of tastes,"
that is because taste is so extremely variable; and yet even in this
instance we recognise a certain "objective" standard by speaking of a
"bad" and a "good" taste. On the other hand, if the appearance of
objectivity in the moral judgments is so illusive as to {9} make it
seem necessary to refer them to reason, that is partly on account of
the comparatively uniform nature of the moral consciousness.
Society is the school in which men learn to distinguish between right
and wrong. The headmaster is Custom, and the lessons are the same for
all. The first moral judgments were pronounced by public opinion;
public indignation and public approval are the prototypes of the moral
emotions. As regards questions of morality, there was, in early
society, practically no difference of opinion; hence a character of
universality, or objectivity, was from the very beginning attached to
all moral judgments. And when, with advancing civilisation, this
unanimity was to some extent disturbed by individuals venturing to
dissent from the opinions of the majority, the disagreement was
largely due to facts which in no way affected the moral principle, but
had reference only to its application.
Most people follow a very simple method in judging of an act.
Particular modes of conduct have their traditional labels, many of
which are learnt with language itself; and the moral judgment commonly
consists simply in labelling the act according to certain obvious
characteristics which it presents in common with others belonging to
the same group. But a conscientious and intelligent judge proceeds in
a different manner. He carefully examines all the details connected
with the act, the external and internal conditions under which it was
performed, its consequences, its motive; and, since the moral estimate
in a large measure depends upon the regard paid to these
circumstances, his judgment may differ greatly from that of the man in
the street, even though the moral standard which they apply be exactly
the same. But to acquire a full insight into all the details which are
apt to influence the moral value of an act is in many cases anything
but easy, and this naturally increases the disagreement. There is thus
in every advanced society a diversity of opinion regarding the moral
value of certain modes of conduct which results from circumstances of
a purely {10} intellectual character--from the knowledge or ignorance
of positive facts,--and involves no discord in principle.
Now it has been assumed by the advocates of various ethical theories
that all the differences of moral ideas originate in this way, and
that there is some ultimate standard which must be recognised as
authoritative by everybody who understands it rightly. According to
Bentham, the rectitude of utilitarianism has been contested only by
those who have not known their own meaning:--"When a man attempts to
combat the principle of utility . . . his arguments, if they prove
anything, prove not that the principle is wrong, but that, according
to the applications he supposes to be made of it, it is
misapplied."[9] Mr. Spencer, to whom good conduct is that "which
conduces to life in each and all," believes that he has the support of
"the true moral consciousness," or "moral consciousness proper,"
which, whether in harmony or in conflict with the "pro-ethical"
sentiment, is vaguely or distinctly recognised as the rightful
ruler.[10] Samuel Clarke, the intuitionist, again, is of opinion that
if a man endowed with reason denies the eternal and necessary moral
differences of things, it is the very same "as if a man that has the
use of his sight, should at the same time that he beholds the sun,
deny that there is any such thing as light in the world; or as if a
man that understands Geometry or Arithmetick, should deny the most
obvious and known proportions of lines or numbers."[11] In short, all
disagreement as to questions of morals is attributed to ignorance or
misunderstanding.
[Footnote 9: Bentham, _Principles of Morals and Legislation_, p. 4 _sq._]
[Footnote 10: Spencer, _Principles of Ethics_, i. 45, 337 _sq._]
[Footnote 11: Clarke, _Discourse concerning the Unchangeable
Obligations of Natural Religion_, p. 179.]
The influence of intellectual considerations upon moral judgments is
certainly immense. We shall find that the evolution of the moral
consciousness to a large extent consists in its development from the
unreflecting to the reflecting, from the unenlightened to the
enlightened. All higher emotions are determined by cognitions, they
arise {11} from "the presentation of determinate objective
conditions";[12] and moral enlightenment implies a true and
comprehensive presentation of those objective conditions by which the
moral emotions, according to their very nature, are determined.
Morality may thus in a much higher degree than, for instance, beauty
be a subject of instruction and of profitable discussion, in which
persuasion is carried by the representation of existing data. But
although in this way many differences may be accorded, there are
points in which unanimity cannot be reached even by the most accurate
presentation of facts or the subtlest process of reasoning.
[Footnote 12: Marshall, _Pain_, _Pleasure_, _and Aesthetics_, p. 83.]
Whilst certain phenomena will almost of necessity arouse similar moral
emotions in every mind which perceives them clearly, there are others
with which the case is different. The emotional constitution of man
does not present the same uniformity as the human intellect. Certain
cognitions inspire fear in nearly every breast; but there are brave
men and cowards in the world, independently of the accuracy with which
they realise impending danger. Some cases of suffering can hardly fail
to awaken compassion in the most pitiless heart; but the sympathetic
dispositions of men vary greatly, both in regard to the beings with
whose sufferings they are ready to sympathise, and with reference to
the intensity of the emotion. The same holds good for the moral
emotions. The existing diversity of opinion as to the rights of
different classes of men and of the lower animals, which springs from
emotional differences, may no doubt be modified by a clearer insight
into certain facts, but no perfect agreement can be expected as long
as the conditions under which the emotional dispositions are formed
remain unchanged. Whilst an enlightened mind _must_ recognise the
complete or relative irresponsibility of an animal, a child, or a
madman, and _must_ be influenced in its moral judgment by the motives
of an act--no intellectual enlightenment, no scrutiny of facts, can
decide how far the interests of the {12} lower animals should be
regarded when conflicting with those of men, or how far a person is
bound, or allowed, to promote the welfare of his nation, or his own
welfare, at the cost of that of other nations or other individuals.
Professor Sidgwick's well-known moral axiom, "I ought not to prefer my
own lesser good to the greater good of another,"[13] would, if
explained to a Fuegian or a Hottentot, be regarded by him, not as
self-evident, but as simply absurd; nor can it claim general
acceptance even among ourselves. Who is that "Another" to whose
greater good I ought not to prefer my own lesser good? A
fellow-countryman, a savage, a criminal, a bird, a fish--all without
distinction? It will, perhaps, be argued that on this, and on all
other points of morals, there would be general agreement, if only the
moral consciousness of men were sufficiently developed.[14] But then,
when speaking of a "sufficiently developed" moral consciousness
(beyond insistence upon a full insight into the governing facts of
each case), we practically mean nothing else than agreement with our
own moral convictions. The expression is faulty and deceptive,
because, if intended to mean anything more, it presupposes an
objectivity of the moral judgments which they do not possess, and at
the same time seems to be proving what it presupposes. We may speak of
an intellect as sufficiently developed to grasp a certain truth,
because truth is objective; but it is not proved to be objective by
the fact that it is recognised as true by a "sufficiently developed"
intellect. The objectivity of truth lies in the recognition of facts
as true by all who understand them _fully_, whilst the appeal to a
_sufficient_ knowledge assumes their objectivity. To the verdict of a
perfect intellect, that is, an intellect which knows everything
existing, all would submit; but we can form no idea of a moral
consciousness which could lay claim to a similar authority. If the
believers in an all-good {13} God, who has revealed his will to
mankind, maintain that they in this revelation possess a perfect moral
standard, and that, consequently, what is in accordance with such a
standard must be objectively right, it may be asked what they mean by
an "all-good" God. And in their attempt to answer this question, they
would inevitably have to assume the objectivity they wanted to prove.
[Footnote 13: Sidgwick, _op. cit._ p. 383.]
[Footnote 14: This, in fact, was the explanation given by Professor
Sidgwick himself in a conversation which I had with him regarding his
moral axioms.]
The error we commit by attributing objectivity to moral estimates
becomes particularly conspicuous when we consider that these estimates
have not only a certain quality, but a certain quantity. There are
different degrees of badness and goodness, a duty may be more or less
stringent, a merit may be smaller or greater.[15] These quantitative
differences are due to the emotional origin of all moral concepts.
Emotions vary in intensity almost indefinitely, and the moral emotions
form no exception to this rule. Indeed, it may be fairly doubted
whether the same mode of conduct ever arouses exactly the same degree
of indignation or approval in any two individuals. Many of these
differences are of course too subtle to be manifested in the moral
judgment; but very frequently the intensity of the emotion is
indicated by special words, or by the way in which the judgment is
pronounced. It should be noticed, however, that the quantity of the
estimate expressed in a moral predicate is not identical with the
intensity of the moral emotion which a certain mode of conduct arouses
on a special occasion. We are liable to feel more indignant if an
injury is committed before our eyes than if we read of it in a
newspaper, and yet we admit that the degree of wrongness is in both
cases the same. The quantity of moral estimates is determined by the
intensity of the emotions which their objects tend to evoke under
exactly similar external circumstances.
[Footnote 15: It will be shown in a following chapter why there are no
degrees of rightness. This concept implies accordance with the moral
law. The adjective "right" means that duty is fulfilled.]
{14} Besides the relative uniformity of moral opinions, there is
another circumstance which tempts us to objectivise moral judgments,
namely, the authority which, rightly or wrongly, is ascribed to moral
rules. From our earliest childhood we are taught that certain acts
_are_ right and that others _are_ wrong. Owing to their exceptional
importance for human welfare, the facts of the moral consciousness are
emphasised in a much higher degree than any other subjective facts. We
are allowed to have our private opinions about the beauty of things,
but we are not so readily allowed to have our private opinions about
right and wrong. The moral rules which are prevalent in the society to
which we belong are supported by appeals not only to human, but to
divine, authority, and to call in question their validity is to rebel
against religion as well as against public opinion. Thus the belief in
a moral order of the world has taken hardly less firm hold of the
human mind than the belief in a natural order of things. And the moral
law has retained its authoritativeness even when the appeal to an
external authority has been regarded as inadequate. It filled Kant
with the same awe as the star-spangled firmament. According to Butler,
conscience is "a faculty in kind and in nature supreme over all
others, and which bears its own authority of being so."[16] Its
supremacy is said to be "felt and tacitly acknowledged by the worst no
less than by the best of men."[17] Adam Smith calls the moral
faculties the "vicegerents of God within us," who "never fail to
punish the violation of them by the torments of inward shame and
self-condemnation; and, on the contrary, always reward obedience with
tranquillity of mind, with contentment, and self-satisfaction."[18]
Even Hutcheson, who raises the question why the moral sense should not
vary in different men as the palate does, considers it {15} "to be
naturally destined to command all the other powers."[19]
[Footnote 16: Butler, 'Sermon II.--Upon Human Nature,' in _Analogy of
Religion_, _&c._ p. 403.]
[Footnote 17: Dugald Stewart, _Philosophy of the Active and Moral
Powers of Man_, i. 302.]
[Footnote 18: Adam Smith, _Theory of Moral Sentiments_, p. 235.]
[Footnote 19: Hutcheson, _System of Moral Philosophy_, i. 61.]
Authority is an ambiguous word. It may indicate knowledge of truth,
and it may indicate a rightful power to command obedience. The
authoritativeness attributed to the moral law has often reference to
both kinds of authority. The moral lawgiver lays down his rules in
order that they should be obeyed, and they are authoritative in so far
as they have to be obeyed. But he is also believed to know what is
right and wrong, and his commands are regarded as expressions of moral
truths. As we have seen, however, this latter kind of authority
involves a false assumption as to the nature of the moral predicates,
and it cannot be justly inferred from the power to command. Again, if
the notion of an external lawgiver be put aside, the moral law does
not generally seem to possess supreme authority in either sense of the
word. It does not command obedience in any exceptional degree; few
laws are broken more frequently. Nor can the regard for it be called
the mainspring of action; it is only one spring out of many, and
variable like all others. In some instances it is the ruling power in
a man's life, in others it is a voice calling in the desert; and the
majority of people seem to be more afraid of the blame or ridicule of
their fellowmen, or of the penalties with which the law threatens
them, than of "the vicegerents of God" in their own hearts. That
mankind prefer the possession of virtue to all other enjoyments, and
look upon vice as worse than any other misery,[20] is unfortunately an
imagination of some moralists who confound men as they are with men as
they ought to be.
[Footnote 20: _Idem_, _Inquiry into the Original of our Ideas of
Beauty and Virtue_, p. 248.]
It is said that the authority of the moral law asserts itself every
time the law is broken, that virtue bears in itself its own reward,
and vice its own punishment. But, to be sure, conscience is a very
unjust retributer. The more a person habituates himself to virtue the
more he {16} sharpens its sting, the deeper he sinks in vice the more
he blunts it. Whilst the best men have the most sensitive consciences,
the worst have hardly any conscience at all. It is argued that the
habitual sinner has rid himself of remorse at a great cost;[21] but it
may be fairly doubted whether the loss is an adequate penalty for his
wickedness. We are reminded that men are rewarded for good and
punished for bad acts by the moral feelings of their neighbours. But
public opinion and law judge of detected acts only. Their judgment is
seldom based upon an exhaustive examination of the case. They often
apply a standard which is itself open to criticism. And the feelings
with which men regard their fellow-creatures, and which are some of
the main sources of human happiness and suffering, have often very
little to do with morality. A person is respected or praised, blamed
or despised, on other grounds than his character. Nay, the admiration
which men feel for genius, courage, pluck, strength, or accidental
success, is often superior in intensity to the admiration they feel
for virtue.
[Footnote 21: Ziegler, _Social Ethics_, p. 103.]
In spite of all this, however, the supreme authority assigned to the
moral law is not altogether an illusion. It really exists in the minds
of the best, and is nominally acknowledged by the many. By this I do
not refer to the universal admission that the moral law, whether
obeyed or not, ought under all circumstances to be obeyed; for this is
the same as to say that what ought to be ought to be. But it is
recognised, in theory at least, that morality, either alone or in
connection with religion, possesses a higher value than anything else;
that rightness and goodness are preferable to all other kinds of
mental superiority, as well as of physical excellence. If this theory
is not more commonly acted upon, that is due to its being, in most
people, much less the outcome of their own feelings than of
instruction from the outside. It is ultimately traceable to some great
teacher whose own mind was ruled by the ideal of moral perfection, and
whose {17} words became sacred on account of his supreme wisdom, like
Confucius or Buddha,[22] or on religious grounds, like Jesus. The
authority of the moral law is thus only an expression of a strongly
developed, overruling moral consciousness. It can hardly, as Mr.
Sidgwick maintains, be said to "depend upon" the conception of the
objectivity of duty.[23] On the contrary, it must be regarded as a
cause of this conception--not only, as has already been pointed out,
where it is traceable to some external authority, but where it results
from the strength of the individual's own moral emotions. As clearness
and distinctness of the conception of an object easily produces the
belief in its truth, so the intensity of a moral emotion makes him who
feels it disposed to objectivise the moral estimate to which it gives
rise, in other words, to assign to it universal validity. The
enthusiast is more likely than anybody else to regard his judgments as
true, and so is the moral enthusiast with reference to his moral
judgments. The intensity of his emotions makes him the victim of an
illusion.
[Footnote 22: "Besides the ideal king, the personification of Power
and Justice, another ideal has played an important part in the
formation of early Buddhist ideas regarding their Master. . . . It was
the ideal of a perfectly Wise Man, the personification of Wisdom, the
Buddha" (Rhys Davids, _Hibbert Lectures on Some Points in the History
of Buddhism_, p. 141).]
[Footnote 23: Sidgwick, _op. cit._ p. 104.]
The presumed objectivity of moral judgments thus being a chimera,
there can be no moral truth in the sense in which this term is
generally understood. The ultimate reason for this is, that the moral
concepts are based upon emotions, and that the contents of an emotion
fall entirely outside the category of truth. But it may be true or not
that we have a certain emotion, it may be true or not that a given
mode of conduct has a tendency to evoke in us moral indignation or
moral approval. Hence a moral judgment is true or false according as
its subject has or has not that tendency which the predicate
attributes to it. If I say that it is wrong to resist evil, and yet
resistance to evil has no tendency whatever to call {18} forth in me
an emotion of moral disapproval, then my judgment is false.
If there are no general moral truths, the object of scientific ethics
cannot be to fix rules for human conduct, the aim of all science being
the discovery of some truth. It has been said by Bentham and others
that moral principles cannot be proved because they are first
principles which are used to prove everything else.[24] But the real
reason for their being inaccessible to demonstration is that, owing to
their very nature, they can never be true. If the word "Ethics," then,
is to be used as the name for a science, the object of that science
can only be to study the moral consciousness as a fact.[25]
[Footnote 24: Bentham, _Principles of Morals and Legislation_, p. 4.
_Cf._ Höffding, _Etik_, p. 43.]
[Footnote 25: _Cf._ Simmel, _Einleitung in die Moralwissenschaft_, i.
p. iii. _sq._; Westermarck, 'Normative und psychologische Ethik,' in
_Dritter Internationaler Congress für Psychologie in München_,
p. 428 _sq._]
Ethical subjectivism is commonly held to be a dangerous doctrine,
destructive to morality, opening the door to all sorts of libertinism.
If that which appears to each man as right or good, stands for that
which is right or good; if he is allowed to make his own law, or to
make no law at all; then, it is said, everybody has the natural right
to follow his caprice and inclinations, and to hinder him from doing
so is an infringement on his rights, a constraint with which no one is
bound to comply provided that he has the power to evade it. This
inference was long ago drawn from the teaching of the Sophists,[26]
and it will no doubt be still repeated as an argument against any
theorist who dares to assert that nothing can be said to be truly
right or wrong.
[Footnote 26: Zeller, _History of Greek Philosophy_, ii. 475.]
To this argument may, first, be objected that a scientific theory is
not invalidated by the mere fact that it is likely to cause mischief.
The unfortunate circumstance that there do exist dangerous things in
the world, proves that something may be dangerous and yet true.
Another question is whether any scientific truth really is mischievous
{19} on the whole, although it may cause much discomfort to certain
people. I venture to believe that this, at any rate, is not the case
with that form of ethical subjectivism which I am here advocating. The
charge brought against the Sophists does not at all apply to it. I do
not even subscribe to that beautiful modern sophism which admits every
man's conscience to be an infallible guide. If we had to recognise, or
rather if we did recognise, as right everything which is held to be
right by anybody, savage or Christian, criminal or saint, morality
would really suffer a serious loss. But we do not, and we cannot, do
so. My moral judgments are my own judgments; they spring from my own
moral consciousness; they judge of the conduct of other men not from
their point of view but from mine, not with primary reference to their
opinions about right and wrong, but with reference to my own. Most of
us indeed admit that, when judging of an act, we also ought to take
into consideration the moral conviction of the agent, and the
agreement or disagreement between his doing and his idea of what he
ought to do. But although we hold it to be wrong of a person to act
against his conscience, we may at the same time blame him for having
such a conscience as he has. Ethical subjectivism covers all such
cases. It certainly does not allow everybody to follow his own
inclinations; nor does it lend sanction to arbitrariness and caprice.
Our moral consciousness belongs to our mental constitution, which we
cannot change as we please. We approve and we disapprove because we
cannot do otherwise. Can we help feeling pain when the fire burns us?
Can we help sympathising with our friends? Are these phenomena less
necessary or less powerful in their consequences, because they fall
within the subjective sphere of experience? So, too, why should the
moral law command less obedience because it forms part of our own
nature?
Far from being a danger, ethical subjectivism seems to me more likely
to be an acquisition for moral practice. {20} Could it be brought home
to people that there is no absolute standard in morality, they would
perhaps be somewhat more tolerant in their judgments, and more apt to
listen to the voice of reason. If the right has an objective
existence, the moral consciousness has certainly been playing at
blindman's buff ever since it was born, and will continue to do so
until the extinction of the human race. But who does admit this? The
popular mind is always inclined to believe that it possesses the
knowledge of what _is_ right and wrong, and to regard public opinion
as the reliable guide of conduct. We have, indeed, no reason to regret
that there are men who rebel against the established rules of
morality; it is more deplorable that the rebels are so few, and that,
consequently, the old rules change so slowly. Far above the vulgar
idea that the right is a settled something to which everybody has to
adjust his opinions, rises the conviction that it has its existence in
each individual mind, capable of any expansion, proclaiming its own
right to exist, and, if need be, venturing to make a stand against the
whole world. Such a conviction makes for progress.
CHAPTER II
THE NATURE OF THE MORAL EMOTIONS
IN the preceding chapter it was asserted, in general terms, that the
moral concepts are based on emotions, and the leading arguments to the
contrary were met. We shall now proceed to examine the nature of the
moral emotions.
These emotions are of two kinds: disapproval, or indignation, and
approval. They have in common characteristics which make them moral
emotions, in distinction from others of a non-moral character, but at
the same time both of them belong to a wider class of emotions, which
I call retributive emotions. Again, they differ from each other in
points which make each of them allied to certain non-moral retributive
emotions, disapproval to anger and revenge, and approval to that kind
of retributive kindly emotion which in its most developed form is
gratitude. They may thus, on the one hand, be regarded as two distinct
divisions of the moral emotions, whilst, on the other hand,
disapproval, like anger and revenge, forms a sub-species of
resentment, and approval, like gratitude, forms a sub-species of
retributive kindly emotion. The following diagram will help to
elucidate the matter:--
Retributive Emotions.
|
----------------------------------------
| |
Resentment. Retributive Kindly Emotion.
| |
----------------- ---------------------------
| | | |
Anger and Moral Moral Non-moral retributive
Revenge. disapproval. approval Kindly Emotion,
| | including Gratitude.
---------------
|
Moral Emotions.
{22} That moral disapproval is a kind of resentment and akin to anger
and revenge, and that moral approval is a kind of retributive kindly
emotion and akin to gratitude, are, of course, statements which call
for proof. An analysis of all these emotions, and a detailed study of
the causes which evoke them, will, I hope, bear out the correctness of
my classification. In this connection only the analysis can be
attempted. The study of causes will be involved in the treatment of
the subjects of moral judgments.
Resentment may be described as an aggressive attitude of mind towards
a cause of pain. Anger is sudden resentment, in which the hostile
reaction against the cause of pain is unrestrained by deliberation.
Revenge, on the other hand, is a more deliberate form of non-moral
resentment, in which the hostile reaction is more or less restrained
by reason and calculation.[1] It is impossible, however, to draw any
distinct limit between these two types of resentment, as also to
discern where an actual desire to inflict pain comes in. In its
primitive form, anger, even when directed against a living being,
contains a vehement impulse to remove the cause of pain without any
real desire to produce suffering.[2] Anger is strikingly shown by many
fish, and notoriously by sticklebacks when their territory is invaded
by other sticklebacks. In such circumstances of provocation the whole
animal changes colour, and, darting at the trespasser, shows rage and
fury in every movement;[3] but we can hardly believe that any idea of
inflicting pain is present to its mind. As we proceed still lower down
the scale of animal life we find the conative element itself gradually
dwindle away until nothing is left but mere reflex action.
[Footnote 1: _Cf._ Ribot, _Psychology of the Emotions_, p. 220 _sqq._]
[Footnote 2: There are some good remarks on this in Mr. Hiram
Stanley's _Studies in the Evolutionary Psychology of Feeling_,
p. 138 _sq._]
[Footnote 3: Romanes, _Animal Intelligence_, p. 246 _sqq._]
That the fury of an injured animal turns against the real or assumed
cause of its injury is a matter of notoriety, and everybody knows that
the same is the case with the {23} anger of a child. No doubt, as
Professor Sully observes, "hitting out right and left, throwing things
down on the floor and breaking them, howling, wild agitated movements
of the arms and whole body, these are the outward vents which the gust
of childish fury is apt to take."[4] But, on the other hand, we know
well enough that Darwin's little boy, who became a great adept at
throwing books and sticks at any one who offended him,[5] was in this
respect no exceptional child. Towards the age of one year, according
to M. Perez, children "will beat people, animals, and inanimate
objects if they are angry with them; they will throw their toys, their
food, their plate, anything, in short, that is at hand, at the people
who have displeased them."[6] That a similar discrimination
characterises the resentment of a savage is a fact upon which it is
necessary to dwell at some length for the reason that it has been
disputed, and because there are some seeming anomalies which require
an explanation.
[Footnote 4: Sully, _Studies in Childhood_, p. 232 _sq._]
[Footnote 5: Darwin, 'Biographical Sketch of an Infant,' in _Mind_,
ii. 288.]
[Footnote 6: Perez, _first Three Years of Childhood_, p. 66 _sq._]
In a comprehensive work,[7] Dr. Steinmetz has made the feeling of
revenge the object of a detailed investigation, which cannot be left
unnoticed. The ultimate conclusions at which he has arrived are these:
Revenge is essentially rooted in the feeling of power and superiority.
It arises consequently upon the experience of injury, and its aim is
to enhance the "self-feeling" which has been lowered or degraded by
the injury suffered. It answers this purpose best if it is directed
against the aggressor himself, but it is not essential to it that it
should take any determinate direction, for, _per se_, and originally,
it is "undirected."[8]
[Footnote 7: _Ethnologische Studien zur ersten Entwicklung der
Strafe_.]
[Footnote 8: Strictly speaking, this theory is not new. Dr. Paul Rée,
in his book _Die Entstehung des Gewissens_, has pronounced revenge to
be a reaction against the feeling of inferiority which the aggressor
impresses upon his victim. The injured man, he says (_ibid._ p. 40) is
naturally reluctant to feel himself inferior to another man, and
consequently strives, by avenging the aggression, to show himself
equal or even superior to the aggressor. A similar view was previously
expressed by Schopenhauer (_Parerga und Paralipomena_, ii. 475 _sq._).
But Dr. Steinmetz has elaborated his theory with an independence and
fulness which make any question of priority quite insignificant.]
{24} We are told, in fact, that the first stage through which revenge
passed within the human race was characterised by a total, or almost
total, want of discrimination. The aim of the offended man was merely
to raise his injured "self-feeling" by inflicting pain upon somebody
else, and his savage desire was satisfied whether the man on whom he
wreaked his wrath was guilty or innocent.[9] No doubt, there were from
the outset instances in which the offender himself was purposely made
the victim, especially if he was a fellow-tribesman; but it was not
really due to the feeling of revenge if the suffering was inflicted
upon him, in preference to others. Even primitive man must have found
out that vengeance directed against the actual culprit, besides being
a strong deterrent to others, was a capital means of making a
dangerous person harmless. However, Dr. Steinmetz adds, these
advantages should not be overestimated, as even indiscriminate revenge
has a deterring influence on the malefactor.[10] In early times, then,
vengeance, according to Dr. Steinmetz, was in the main "undirected."
[Footnote 9: Steinmetz, _op. cit._ i. 355, 356, 359, 561.]
[Footnote 10: _Ibid._ i. 362.]
At the next stage it becomes, he says, somewhat less indiscriminate. A
proper victim is sought for even in cases of what we should call
natural death, which the savage generally attributes to the ill-will
of some foe skilled in sorcery;[11] though indeed Dr. Steinmetz doubts
whether in such cases the unfortunate sufferer is really supposed to
have committed the deed imputed to him.[12] At all events, a need is
felt of choosing somebody for a victim, and "undirected" vengeance
gradually gives way to "directed" vengeance. A rude specimen of this
is the blood-feud, in which the individual culprit is left out of
consideration, but war is carried on against the group of which he is
a member, either his family or his tribe. And {25} from this system of
joint responsibility we finally come, by slow degrees, says Dr.
Steinmetz, to the modern conception, according to which punishment
should be inflicted upon the criminal and nobody else.[13] Dr.
Steinmetz believes that the _vis agens_ in this long process of
evolution lies in the intellectual development of the human race: man
found out more and more distinctly that the best means of restraining
wrongs was to punish a certain person, namely, the wrong-doer.[14] On
this utilitarian calculation our author lays much stress in the latter
part of his investigation; whereas in another place he observes that a
revenge which is directed against the offender is particularly apt to
remove the feeling of inferiority, by effectually humiliating the
hitherto triumphant foe.[15]
[Footnote 11: _Ibid._ i. 356 _sq._]
[Footnote 12: _Ibid._ i. 359 _sq._]
[Footnote 13: Steinmetz, _op. cit._ i. 361.]
[Footnote 14: _Ibid._ i. 358, 359, 361 _sq._]
[Footnote 15: _Ibid._ i. 111.]
In this historical account the main points of interest are the initial
stage of "undirected" vengeance, and the way in which such vengeance
gradually became discriminate. If, in primitive times, a man did not
care in the least on whom he retaliated an injury, then of course the
direction of his vengeance could not be essential to the revenge
itself, but would be merely a later appendix to it. The question is,
what evidence can Dr. Steinmetz adduce to support his theory? Of
primitive man we have no direct experience; no savage people now
existing is a faithful representative of him, either physically or
mentally. Yet however greatly the human race has changed, primitive
man is not altogether dead. Traits of his character still linger in
his descendants; and of primitive revenge, we are told, there are
sufficient survivals left.[16]
[Footnote 16: _Ibid._ i. 364.]
Under the heading "Perfectly Undirected Revenge," Dr. Steinmetz
sets out several alleged cases of such so-called survivals[17] 1. An
Indian of the Omaha tribe, who was kicked out of a trading
establishment which he had been forbidden to enter, declared in a rage
that he would revenge himself for an injury so gross, and, "seeking
some object to destroy, he encountered a {26} sow and pigs, and
appeased his rage by putting them all to death." 2. The people of that
same tribe believe that if a man who has been struck by lightning is
not buried in the proper way, and in the place where he has been
killed, his spirit will not rest in peace, but will walk about till
another person is slain by lightning and laid beside him. 3. At the
burial of a Loucheux Indian, the relatives sometimes will cut and
lacerate their bodies, or, as sometimes happens, will, "in a fit of
revenge against fate," stab some poor, friendless person who may be
sojourning among them. 4. The Navahoes, when jealous of their wives,
are apt to wreak their spleen and ill-will upon the first person whom
they chance to meet. 5. The Great Eskimo, as it is reported, once
after a severe epidemic swore to kill all white people who might
venture into their country. 6. The Australian father, whose little
child happens to hurt itself, attacks his innocent neighbours,
believing that he thus distributes the pain among them and
consequently lessens the suffering of the child. 7. The Brazilian
Tupis ate the vermin which molested them, for the sake of revenge; and
if one of them struck his foot against a stone, he raged over it and
bit it, whilst, if he were wounded with an arrow, he plucked it out
and gnawed the shaft. 8. The Dacotahs avenge theft by stealing the
property of the thief or of somebody else. 9. Among the Tshatrali
(Pamir), if a man is robbed of his meat by a neighbour's dog, he will,
in a fit of rage, not only kill the offending dog, but will, in
addition, kick his own. 10. In New Guinea the bearers of evil tidings
sometimes get knocked on the head during the first outburst of
indignation evoked by their news. 11. Some natives of Motu, who had
rescued two shipwrecked crews and safely brought them to their home in
Port Moresby, were attacked there by the very friends of those they
had saved, the reason for this being that the Port Moresby people were
angry at the loss of the canoes, and could not bear that the Motuans
were happy while they themselves were in trouble. 12. Another story
from New Guinea tells us of a man who killed some innocent persons,
because he had been disappointed in his plans and deprived of valuable
property. 13. Among the Maoris it sometimes happened that the friends
of a murdered man killed the first man who came in their way, whether
enemy or friend. 14. Among the same people, chiefs who had suffered
some loss often used to rob their subjects of property in order to
make good the damage. 15. If the son of a Maori is hurt, his maternal
relatives, to whose tribe he is considered to belong, come to pillage
his father's house or village. 16. If {27} a tree falls on a Kuki his
fellows chop it up, and if one of that tribe kills himself by falling
from a tree the tree from which he fell is promptly cut down. 17. In
some parts of Daghestan, when the cause of a death is unknown, the
relatives of the deceased declare some person chosen at random to have
murdered him, and retaliate his death upon that person.
[Footnote 17: _Ibid._ i. 318 _sqq._]
I have been obliged to enumerate all these cases for the reason that a
theory cannot be satisfactorily refuted unless on its own ground. I
may confess at once that I scarcely ever saw an hypothesis vindicated
by the aid of more futile evidence. The cases 7 and 16 illustrate just
the reverse of "undirected" revenge, and, when we take into
consideration the animistic beliefs of savages, present little to
astonish us. In case 17 the guilt is certainly imputed to somebody at
random, but only when the culprit is unknown. Cases 1, 4, 10 and 12
and perhaps also 11, imply that revenge is taken upon an innocent
party in a fit of passion; in cases 1 and 12 the offender himself
cannot be got at, in case 10 the man who is knocked on the head
appears for the moment as the immediate cause of the grief or
indignation evoked, while case 11 exhibits envy combined with extreme
ingratitude. In case 9 the anger is chiefly directed against the
"guilty" dog, and against the "innocent" one evidently by an
association of ideas. Cases 8 and 14 illustrate indemnification for
loss of property, and in case 8 the thief himself is specifically
mentioned first. In case 15 the revenging attack is made upon the
property of those people among whom the child lives, and who may be
considered responsible for the loss its maternal clan sustains by the
injury. Case 6 merely shows the attempt of a superstitious father to
lessen the suffering of his child. As regards case 5, Petitot, who has
recorded it, says expressly that the white people were supposed to
have caused the epidemic by displeasing the god Tornrark.[18] Case 2
points to a superstitious belief which is interesting enough in
itself, but which, so far as I can see, is without any bearing
whatever on the point we are discussing. Case 3 looks like a
death-offering. The stabbing of an innocent person is mentioned in
connection with, or rather as an alternative to, the self-laceration
of the mourners, which last has probably a sacrificial character.
Moreover, there is in this case no question of a culprit. In case 13,
finally, the idea of sacrifice is very conspicuous. Dr. Steinmetz has
borrowed his statement from Waitz, whose account is incomplete.
Dieffenbach, the original authority, says that the custom in question
was called by the Maori _taua tapu_, _i.e._, sacred fight, {28} or
_taua toto_, _i.e._, fight for blood. He describes it as follows:--"If
blood has been shed, a party sally forth and kill the first person
they fall in with, whether an enemy or belonging to their own tribe;
even a brother is sacrificed. If they do not fall in with anybody, the
_tohunga_ (that is, the priest) pulls up some grass, throws it into a
river, and repeats some incantation. After this ceremony, the killing
of a bird, or any living thing that comes in their way, is regarded as
sufficient, provided that blood is actually shed. All who participate
in such an excursion are _tapu_, and are not allowed either to smoke
or to eat anything but indigenous food."[19] It seems probable that
this ceremony was undertaken in order to appease the enraged spirit of
the dead,[20] and at the same time it may have been intended to
refresh the spirit with blood.[21] The question, however, is, Why was
not his death avenged upon the actual culprit? To this Dr. Steinmetz
would answer that the deceased was thought to be indiscriminate in his
craving for vengeance.[22] But so far as the resentment of the dead is
concerned, the "sacred fight" of the Maoris only seems to illustrate
the impulsive character of anger. From Dieffenbach's description of
it, it is obvious that the friends of the slain man considered it to
be a matter of paramount importance that blood should be shed
immediately. If no human being came in their way, an animal was
killed, but then an incantation was uttered beforehand. I presume that
the reason for this was the terror which the supposed wrath of the
dead man's spirit struck into the living, combined perhaps with the
idea that it was in immediate need of fresh blood. The Maoris
considered all spirits of the dead to be maliciously inclined towards
them,[23] and the ghost of a person who had died a violent death was
certainly looked upon as especially dangerous. The craving for
instantaneous shedding of blood is even more conspicuous in another
case which may be appropriately mentioned in this connection. The
Aetas of the Philippine Islands, we are told, "do not always {29} wait
for the death of the afflicted before they bury him. Immediately after
the body has been deposited in the grave, it becomes necessary,
according to their usages, that his death should be avenged. The
hunters of the tribe go out with their lances and arrows to kill the
first living creature they meet with, whether a man, a stag, a wild
hog, or a buffalo."[24] Dr. Steinmetz himself quotes some other
instances from the same group of islands, in which, when a man dies,
his nearest kinsmen go out to requite his death by the death of the
first man who comes in their way.[25] It is worth noticing that the
Philippine Islanders have the very worst opinion of their ghosts, and
believe that these are particularly bloodthirsty soon after death.[26]
[Footnote 18: Petitot, _Les Grands Esqimaux_, p. 207 _sq._]
[Footnote 19: Dieffenbach, _Travels in New Zealand_, ii. 127.]
[Footnote 20: _Cf._ _ibid._ ii. 129.]
[Footnote 21: The latter object is suggested by some funeral
ceremonies which will be noticed in a following chapter. Among the
Dyaks, "a father who lost his child would go out and kill the first
man he met, as a funeral ceremony," believing that he thus provided
the deceased with a slave to accompany him to the habitation of souls
(Tylor, _Primitive Culture_, i. 459). Among the Garos, it was formerly
the practice, "whenever the death of a great man amongst them
occurred, to send out a party of assassins to murder and bring back
the head of the first Bengali they met. The victims so immolated
would, it was supposed, be acceptable to their gods" (Dalton,
_Descriptive Ethnology of Bengal_, p. 68).]
[Footnote 22: _Cf._ Steinmetz, _op. cit._ i. 343.]
[Footnote 23: Taylor, _Te Ika a Maui_, p. 221.]
[Footnote 24: Earl, _Papuans_, p. 132.]
[Footnote 25: Steinmetz, _op. cit._ i. 335 _sq._]
[Footnote 26: Blumentritt, 'Der Ahnencultus der Malaien des
Philippinen-Archipels' in _Mittheilungen der Geogr. Gesellsch. in
Wien_, xxv. 166 _sqq._ De Mas, _Informe sobre el estado de las Islas
filipinas en 1842_, _Orijen, &c._ p. 15.]
Dr. Steinmetz also refers to some statements according to which, among
certain Australian tribes, the relatives of a person who dies avenge
his death by killing an innocent man.[27] But in these cases the
avenged death, though "natural" according to our terminology, is, in
the belief of the savages, caused by sorcery, and the revenge is not
so indiscriminate as Dr. Steinmetz seems to assume. Among the
Wellington tribe, as appears from a statement which he quotes himself,
it is the sorcerer's life that must be taken for satisfaction.[28] In
New South Wales, after the dead man has been interrogated as to the
cause of his death, his kinsmen are resolute in taking vengeance, if
they "imagine that they have got sure indications of the perpetrator
of the wrong."[29] Among the Central Australian natives, "not
infrequently the dying man will whisper in the ear of a _Railtchawa_,
or medicine man, the name of the man whose magic is killing him," and
if this be not done, "there is no difficulty, by some other method, of
fixing sooner or later on the guilty party"; but only after the
culprit has been revealed by the medicine man is it decided by a
council of the old men whether an avenging party is to be arranged or
not.[30] Among the aborigines of West Australia, the survivors are
"pretty busy in seeking out" the sorcerer who is supposed to have
caused the death of their friend.[31]
[Footnote 27: Steinmetz, _op. cit._ i. 337 _sq._]
[Footnote 28: Hale, _U.S. Exploring Expedition Vol. VI.--Ethnography
and Philology_, p. 115; quoted by Steinmetz, _op. cit._ i. 337.]
[Footnote 29: Fraser, _Aborigines of New South Wales_, p. 86.]
[Footnote 30: Spencer and Gillen, _Native Tribes of Central
Australia_, p. 476 _sq._]
[Footnote 31: Calvert, _Aborigines of Western Australia_, p. 20 _sq._]
{30} To sum up: all the facts which Dr. Steinmetz has adduced as
evidence for his hypothesis of an original stage of "undirected"
revenge only show that, under certain circumstances, either in a fit
of passion, or when the actual offender is unknown or out of reach,
revenge may be taken on an innocent being, wholly unconnected with the
inflicter of the injury which it is sought to revenge. There is such
an intimate connection between the experience of injury and the
hostile reaction by which the injured individual gives vent to his
passion, that the reaction does not fail to appear even when it misses
its aim. Anger, as Seneca said, "does not rage merely against its
object, but against every obstacle which it encounters on its
way."[32] Many infants, when angry and powerless to hurt others,
"strike their heads against doors, posts, walls of houses, and
sometimes on the floor."[33] Well known are the "amucks" of the
Malays, in which "the desperado assails indiscriminately friend and
foe," and, with dishevelled hair and frantic look, murders or wounds
all whom he meets without distinction.[34] But all this is not
revenge; it is sudden anger or blind rage. Nor is it revenge in the
true sense of the word if a person who has been humiliated by his
superior retaliates on those under him. It is only the outburst of a
wounded "self-feeling," which, when not directed against its proper
object, can afford no adequate consolation to a revengeful man.
[Footnote 32: Seneca, _De ira_, iii. 1.]
[Footnote 33: Stanley Hall, 'A Study of Anger,' in _American Jour. of
Psychology_, x. 554.]
[Footnote 34: Crawfurd, _History of the Indian Archipelago_, i. 67.
_Cf._ Ellis, 'The Amok of the Malays,' in _Jour. of Mental Science_,
xxxix. 325 _sqq._ In the Andaman Islands, it is not uncommon for a man
"to vent his ill-temper, or show his resentment at any act, by
destroying his own property as well as that of his neighbours" (Man,
'Aboriginal Inhabitants of the Andaman Islands,' in _Jour. Anthr.
Inst._ xii. 111). Among the Kar Nicobarese, when a quarrel takes
place, in serious cases, a man will probably burn his own house down
(Kloss, _In the Andamans and Nicobars_, p. 310). But in these
instances it is not certain whether the offended party destroys his
own property in blind rage, or with some definite object in view.]
In the institution of the blood-feud some sort of collective
responsibility is usually involved.[35] If the {31} offender is of
another family than his victim, some of his relatives may have to
expiate his deed.[36] If he belongs to another clan, the whole clan
may be held responsible for it.[37] And if he is a member of another
tribe, the vengeance may be wreaked upon his fellow-tribesmen
indiscriminately.[38]
[Footnote 35: _Cf._ Post, _Anfänge des Staats- und Rechtsleben_,
p. 180; Rée, _op. cit._ p. 49 _sq._; Steinmetz, _op. cit._ i. ch. vi.]
[Footnote 36: Besides the authorities quoted _infra_, see Leuschner,
in Steinmetz, _Rechtsverhältnisse von eingeborenen Völkern in Afrika
und Ozeanien_, (Bakwiri); _ibid._ p. 49 (Banaka and Bapuku); Rautanen,
_ibid._ p. 341 (Ondonga); Walter, _ibid._ p. 390 (natives of Nossi-Bé
and Mayotte, near Madagascar); von Langsdorf, _Voyages and Travels_,
i. 132 (Nukahivans); Forbes, _A Naturalist's Wanderings in the Eastern
Archipelago_, p. 473 (Timorese); Foreman, _Philippine Islands_, p. 213
(Igorrotes of Luzon); Kovalewsky, in _Jour. Anthr. Inst._ xxv. 113
(people of Daghestan); _Idem_, _Coutume contemporaine et loi
ancienne_, p. 248 _sq._ (Ossetes); Merzbacher, _Aus den Hochregionen
des Kaukasus_, ii. 51 (Khevsurs).]
[Footnote 37: Bridges, in _A Voice for South America_, xiii. 207
(Fuegians). Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._
iii. 369. Ridley, in _Jour. Anthr. Inst._ ii. 268 (Kamilaroi in
Australia). Godwin-Austen, _ibid._ ii. 394 (Garo Hill tribes).]
[Footnote 38: von Martins, _Beiträge zur Ethnographie Amerika's_,
i. 127 _sqq._ (Brazilian Indians). Crawfurd, _op. cit._ iii. 124
(natives of Celebes). Kohler, in _Zeitschr. f. vgl. Rechtswiss._
vii. 383 (Goajiros of Columbia). _Ibid._ vii. 376 (Papuans of New
Guinea). Curr, _The Australian Race_, i. 70. Scaramucci and Giglioli,
'Notizie sui Danakil,' in _Archivio per l'antropologia e la etnologia_,
xiv. 39. Leuschner, in Steinmetz, _Rechtsverhältnisse_, p. 23 (Bakwiri).
_Ibid._ p. 49 (Banaka and Bapuku).]
"Among the Fuegians," says Mr. Bridges, "etiquette and custom
require that all the relatives of a murdered person should . . . visit
their displeasure upon every connection of the manslayers, each
personally." The avengers of blood would by no means be satisfied with
a party of natives if they should actually deliver up into their hands
a manslayer, or kill him themselves, "but would yet exact from all the
murderer's friends tribute or infliction of injuries with sticks or
stones."[39] Among the Indians of British Columbia and Vancouver
Island, "grudges are handed down from father to son for generations,
and friendly relations are never free from the risk of being
interrupted."[40] Among the Greenlanders, the revenge for a murder
generally "costs the executioner himself, his children, cousins, or
other relatives their lives; or if these are inaccessible, some other
acquaintance in the neighbourhood."[41] Among the Maoris,
blood-revenge might be taken on any relative of the homicide, "no
matter how distant."[42] In Tana, {32} revenge "is often sought in the
death of the brother, or some other near relative of the culprit."[43]
Among the Kabyles, "la vengeance peut porter sur chacun des membres de
la famille du meurtrier, quel qu'il soit."[44] The Bedouins, according
to Burckhardt, "claim the blood not only from the actual homicide, but
from all his relations; and it is these claims that constitute the
right of _thár_, or the blood-revenge."[45] Among the people of Ibrim,
in Nubia, on the other hand, the same traveller observes, "it is not
considered as sufficient to retaliate upon any person within the fifth
degree of consanguinity, as among the Bedouins of Arabia; only the
brother, son, or first cousin can supply the place of the
murderer."[46] Traces of collective responsibility in connection with
blood-revenge are found among the Hebrews.[47] It has prevailed, or
still prevails, among the Japanese[48] and Coreans,[49] the
Persians[50] and Hindus,[51] the ancient Greeks[52] and Teutons.[53]
It was a rule among the Welsh[54] and the Scotch in former days,[55]
and is so still in Corsica,[56] Albania,[57] and among some of the
Southern Slavs.[58] In Montenegro, if a homicide who cannot be caught
himself has no relatives, revenge is sometimes taken on some
inhabitant of the village or district to which he belongs, or even on
a person who only is of the same religion and nationality as the
murderer.[59] In Albania, under similar circumstances, the victim may
be a person who has had nothing else to do with the offender than that
he has perhaps once been speaking to him.[60]
[Footnote 39: Bridges, in _South American Missionary Magazine_,
xiii. 151 _sqq._]
[Footnote 40: Macfie, _Vancouver Island and British Columbia_, p. 470.]
[Footnote 41: Cranz, _History of Greenland_, i. 178.]
[Footnote 42: Shortland, _Traditions and Superstitions of the New
Zealanders_, p. 213 _sq._ _Cf._ _ibid._ p. 218 _sq._]
[Footnote 43: Turner, _Samoa_, p. 317.]
[Footnote 44: Hanoteau and Letourneux, _La Kabylie_, iii. 61.]
[Footnote 45: Burckhardt, _Notes on the Bedouins and Wahábys_, p. 85.
See, also, Layard, _Discoveries in the Ruins of Nineveh and Babylon_,
p. 306; Lane, _Manners and Customs of the Modern Egyptians_, i. 133.]
[Footnote 46: Burckhardt, _Travels in Nubia_, p. 128.]
[Footnote 47: _2 Samuel_, xiv. 7. _Cf._ _ibid._ xxi.]
[Footnote 48: Dautremer, 'The Vendetta or Legal Revenge in Japan,' in
_Trans. Asiatic Soc. Japan_, xiii. 84.]
[Footnote 49: Griffis, _Corea_, p. 227.]
[Footnote 50: Spiegel, _Erânische Alterthumskunde_, iii. 687. Polak,
_Persien_, ii. 96.]
[Footnote 51: Dubois, _Description of the Character, Manners, and
Customs of the People of India_, p. 195.]
[Footnote 52: Leist, _Alt-arisches Jus Gentium_, p. 424.]
[Footnote 53: _Gotlands-Lagen_, 13.]
[Footnote 54: Walter, _Das alte Wales_, p. 138.]
[Footnote 55: Mackintosh, _History of Civilisation in Scotland_,
ii. 279.]
[Footnote 56: Gregorovius, _Wanderings in Corsica_, i. 179.]
[Footnote 57: Gop[vc]evi['c], _**Oberalbanien und seine Liga_,
p. 324 _sqq._]
[Footnote 58: Miklosich, 'Die Blutrache bei den Slaven,' in
_Denkschriften der kaiserl. Akademie d. Wissensch. Philos.-histor.
Classe_, Vienna, xxxvi. 131, 146 _sq._ Krauss, _Sitte und Brauch der
Südslaven_, p. 39.]
[Footnote 59: Lago, _Memorie sulla Dalmazia_, ii. 90.]
[Footnote 60: Gop[vc]evi['c], _op. cit._ p. 325.]
There is no difficulty in explaining these facts. The following
statement made by Mr. Romilly with reference {33} to the Solomon
Islanders has, undoubtedly, a much wider application:--"In the cases
which call for punishment, the difficulties in the way of capturing
the actual culprits are greater than any one, who has not been engaged
in this disagreeable work, can imagine."[61] Though it may happen that
a manslayer is abandoned by his own people,[62] the system of
blood-revenge more often seems to imply, not only that all the members
of a group are engaged, more or less effectually, in the act of
revenge, but that they mutually protect each other against the
avengers. A homicide frequently provokes a war,[63] in which family
stands against family, clan against clan, or tribe against tribe. In
such cases the whole group take upon themselves the deed of the
perpetrator, and any of his fellows, because standing up for him,
becomes a proper object of revenge. The guilt extends itself, as it
were, in the eyes of the offended party. So, also, any person who
lives on friendly terms with the offender, or is supposed to
sympathise with him, is liable to arouse a feeling of resentment, and
may consequently, in extreme cases, have to expiate his crime.
Moreover, because of the close relationship which exists between the
members of the sam__e group, the actual culprit will be mortified by any
successful attack that the avengers make on his people, and, if he be
dead, its painful and humiliating effects may still be supposed to
reach his spirit. "When the offender himself is beyond the reach of
direct attack," says Mr. Wilkins, "it is not beneath a Bengali's view
to try to wound him through his children or other members of his
family."[64] Among the South Slavonians, in a similar case, the
avengers of blood first attempt to kill the father, brother, {34} or
grown-up son of the murderer, "so as to inflict upon him a very heavy
and painful loss"; and only when this has been tried in vain, are more
distant relatives attacked.[65] The Bedouins of the Euphrates even
prefer killing the chief man among the murderer's relations within the
second degree to taking his own life, on the principle, "You have
killed my cousin, I will kill yours."[66] And the Californian Nishinam
"consider that the keenest and most bitter revenge which a man can
take is, not to slay the murderer himself, but his dearest
friend."[67] In these instances vengeance is exacted with reference
rather to the loss suffered by the survivors than to the injury
committed against the murdered man, the culprit being subjected to a
deprivation similar to that which he has inflicted himself. So, also,
among the Marea, if a commoner is slain by a nobleman, his death is
not avenged directly on the slayer, but on some commoner who is
subservient to him.[68] If, again, among the Quianganes of Luzon, a
noble is killed by a plebeian, another nobleman, of the kin of the
murderer, must be killed, while the murderer himself is ignored.[69]
If, among the Igorrotes, a man slays a woman of another house, her
nearest kinsman endeavours to slay a woman belonging to the household
of the homicide, but to the guilty man himself he does nothing.[70] In
all these cases the culprit is not lost sight of; vengeance is
invariably wreaked upon somebody connected with him. But any
consideration of guilt or innocence is overshadowed by the blind
subordination to that powerful rule which requires strict equivalence
between injury and punishment--an eye for an eye and a tooth for a
tooth--and which, when strained to the utmost, cannot allow the life
of a man to be sacrificed for that of a woman, or the life of a
nobleman to be {35} sacrificed for that of a commoner, or the life of
a commoner to expiate the death of a noble. This rule, as we shall see
later on, is not suggested by revenge itself, but is due to the
influence of other factors which intermingle with this feeling, and
help, with it, to determine the action.
[Footnote 61: Romilly, _Western Pacific and New Guinea_, p. 81. _Cf._
Friedrichs, 'Mensch und Person,' in _Das Ausland_, 1891, p. 299.]
[Footnote 62: See, _e.g._, Scott Robertson, _The Káfirs of the
Hindu-Kush_, p. 440.]
[Footnote 63: Dr. Post's statement (_Die Geschlechtsgenossenschaft der
Urzeit_, p. 156) that the blood-revenge "characterisirt sich . . . ganz
und gar als ein Privatkrieg zwischen zwei Geschlechtsgenossenschaften,"
however, is not quite correct in this unqualified form, as may be
seen, _e.g._, from von Martius's description of the blood-revenge of
the Brazilian Indians, _op. cit._ i. 127 _sqq._]
[Footnote 64: Wilkins, _Modern Hinduism_, p. 411.]
[Footnote 65: Krauss, _op. cit._ p. 39.]
[Footnote 66: Blunt, _Bedouin Tribes of the Euphrates_, ii. 206 _sq._]
[Footnote 67: Powers, _Tribes of California_, p. 320.]
[Footnote 68: Munzinger, _Ostafrikanische Studien_, p. 243.]
[Footnote 69: Blumentritt, quoted by Spencer, _Principles of Ethics_,
i. 370 _sq._]
[Footnote 70: Jagor, _Travels in the Philippines_, p. 213.]
Nevertheless, the strong tendency to discrimination which
characterises resentment, is not wholly lost even behind the veil of
common responsibility. Mr. Howitt has come to the conclusion that,
among the Australian Kurnai, if a homicide has been committed by an
alien tribe, the feud "cannot be satisfied but by the death of the
offender," although it is carried on, not against him alone, but
against the whole group of which he is a member.[71] It is only "if
they fail to secure the guilty person" that the natives of Western
Victoria consider it their duty to kill one of his nearest
relatives.[72] Concerning the West Australian aborigines, Sir George
Grey observes, "The first great principle with regard to punishments
is, that all the relations of a culprit, in the event of his not being
found, are implicated in his guilt; if, therefore, the principal
cannot be caught, his brother or father will answer nearly as well,
and failing these, any other male or female relative, who may fall
into the hands of the avenging party."[73] Among the Papuans of the
Tami Islands, revenge may be taken on some other member of the
murderer's family only if it is absolutely impossible to catch the
guilty person himself.[74] That the blood-revenge is in the first
place directed against the malefactor, and against some relative of
his only if he cannot be found out, is expressly stated with reference
to various peoples in different parts of the world;[75] and it is {36}
probable that much more to the same effect might have been discovered,
if the observers of savage life had paid more attention to this
particular aspect of the matter. Among the Fuegians, the most serious
riots take place when a manslayer, whom some one wishes to punish,
takes refuge with his relations or friends.[76] Von Martius remarks of
the Brazilian Indians in general that, even when an intertribal war
ensues from the committing of homicide, the nearest relations of the
killed person endeavour, if possible, to destroy the culprit himself
and his family.[77] With reference to the Creek Indians, Mr. Hawkins
says that though, if a murderer flies and cannot be caught, they will
take revenge upon some innocent individual belonging to his family,
they are "generally earnest of themselves, in their endeavours to put
the guilty to death."[78] The same is decidedly the case in those
parts of Morocco where the blood-feud still prevails.
[Footnote 71: Fison and Howitt, _Kamilaroi and Kurnai_, p. 221.]
[Footnote 72: Dawson, _Australian Aborigines_, p. 71.]
[Footnote 73: Grey, _Journals of Expeditions_, ii. 239.]
[Footnote 74: Bamler, quoted by Kohler, in _Zeitschr. f. vergl.
Rechtswiss._ xiv. 380.]
[Footnote 75: Riedel, _De sluik- en kroesharige rassen tusschen
Selebes en Papua_, p. 434 (natives of Wetter). Chalmers, _Pioneering
in New Guinea_, p. 179. Kohler, in _Zeitschr. f. vergl. Rechtswiss._
xiv. 446 (some Marshall Islanders). Merker, quoted by Kohler, _ibid._
xv. 53 _sq._ (Wadshagga). Brett, _Indian Tribes of Guiana_, p. 357.
Bernau, _Missionary Labours in British Guiana_, p. 57. Dall, _Alaska_,
p. 416. Boas, 'The Central Eskimo,' in _Ann. Rep. Bur. Ethn._ vi. 582.
Jacob, _Leben der vorislâmischen Beduinen_, p. 144. Kovalewsky,
_Coutume contemporaine_, p. 248 (Ossetes). Popovi['c], _Recht und
Gericht in Montenegro_, p. 69; Lago, _op. cit._ ii. 90 (Montenegrines).
Miklosich, _loc. cit._ p. 131 (Slavs). Wilda, _Strafrecht der Germanen_,
p. 173 _sq._ (ancient Teutons).]
[Footnote 76: Hyades and Deniker, _Mission scientifique du Cap Horn_,
vii. 375.]
[Footnote 77: von Martius, _op. cit._ i. 128.]
[Footnote 78: Hawkins, in _Trans. American Ethn. Soc._ iii. 67.]
Not only has Dr. Steinmetz failed to prove his hypothesis that revenge
was originally "undirected," but this hypothesis is quite opposed to
all the most probable ideas we can form with regard to the revenge of
early man. For my own part I am convinced that we may obtain a good
deal of knowledge about the primitive condition of the human race, but
not by studying modern savages only. I have dealt with this question
at some length in another place,[79] and wish now merely to point out
that those general physical and psychical qualities which are not only
common to all races of mankind, but which are shared by them with the
animals most allied to man, may be assumed to have been present also
in the earlier stages of {37} human development. Now, concerning
revenge among animals, more especially among monkeys, many anecdotes
have been told by trustworthy authorities, and in every case the
revenge has been clearly directed against the offender.
[Footnote 79: _History of Human Marriage_, p. 3 _sqq._]
On the authority of a zoologist "whose scrupulous accuracy was
known to many persons," Darwin relates the following story:--"At the
Cape of Good Hope an officer had often plagued a certain baboon, and
the animal, seeing him approaching one Sunday for parade, poured water
into a hole and hastily made some thick mud, which he skilfully dashed
over the officer as he passed by, to the amusement of many bystanders.
For long afterwards the baboon rejoiced and triumphed whenever he saw
his victim."[80] Prof. Romanes considers this to be a good instance of
"what may be called brooding resentment deliberately preparing a
satisfactory revenge."[81] This, I think, is to put into the statement
somewhat more than it really contains; but at all events it records a
case of revenge, in the sense in which Dr. Steinmetz uses the word.
The same may be said of other instances mentioned by so accurate
observers as Brehm and Rengger in their descriptions of African and
American monkeys, and of various examples of resentment in elephants
and even in camels.[82] According to Palgrave, the camel possesses the
passion of revenge, and in carrying it out "shows an unexpected degree
of far-thoughted malice, united meanwhile with all the cold stupidity
of his usual character." The following instance, which occurred in a
small Arabian town, deserves to be quoted, since it seems to have
escaped the notice of the students of animal psychology. "A lad of
about fourteen had conducted a large camel, laden with wood, from that
very village to another at half an hour's distance or so. As the {38}
animal loitered or turned out of the way, its conductor struck it
repeatedly, and harder than it seems to have thought he had a right to
do. But not finding the occasion favourable for taking immediate
quits, it 'bode its time'; nor was that time long in coming. A few
days later the same lad had to re-conduct the beast, but unladen, to
his own village. When they were about half way on the road, and at
some distance from any habitation, the camel suddenly stopped, looked
deliberately round in every direction, to assure itself that no one
was within sight, and, finding the road far and near clear of
passers-by, made a step forward, seized the unlucky boy's head in its
monstrous mouth, and lifting him up in the air flung him down again on
the earth with the upper part of his skull completely torn off, and
his brains scattered on the ground."[83] We are also told that
elephants, though very sensitive to insults, are never provoked, even
under the most painful or distracting circumstances, to hurt those
from whom they have received no harm.[84] Sometimes animals show a
remarkable degree of discrimination in finding out the proper object
for their resentment. It is hardly surprising to read that a baboon,
which was molested in its cage with a stick, tried to seize, not the
stick, but the hand of its tormentor.[85] More interesting is the
"revenge" which an elephant at Versailles inflicted upon a certain
artist who had employed his servant to tease the animal by making a
feint of throwing apples into its mouth:--"This conduct enraged the
elephant; and, as if it knew that the painter was the cause of this
teasing impertinence, instead of attacking the servant, it eyed the
master, and squirted at him from its trunk such a quantity of water as
spoiled the paper on which he was drawing."[86]
[Footnote 80: Darwin, _Descent of Man_, p. 69.]
[Footnote 81: Romanes, _Animal Intelligence_, p. 478.]
[Footnote 82: Brehm, _Thierleben_, i. 156. _Idem_, _From North Pole to
Equator_, p. 305. Rengger (_Naturgeschichte der Säugethiere von
Paraguay_, p. 52) gives the following information about the
Cay:--"Fürchtet er . . . seinen Gegner, so nimmt er seine Zuflucht zur
Verstellung, und sucht sich erst dann an ihm zu rächen, wenn er ihn
unvermuthet überfallen kann. So hatte ich einen Cay, welcher mehrere
Personen die ihn oft auf eine grobe Art geneckt hatten, in einem
Augenblicke lass, wo sie im besten Vernehmen mit ihm zu sein glaubten.
Nach verübter That kletterte er schnell auf einen hohen Balken, wo man
ihm nicht beikommen konnte, und grinste schadenfroh den Gegenstand
seiner Rache an." See, moreover, Watson, _The Reasoning Power in
Animals_, especially pp. 20, 21, 24, 156 _sq._; Romanes, _op. cit._
p. 387 _sqq._; but also Morgan, _Animal Life and Intelligence_, p. 401
_sq._]
[Footnote 83: Palgrave, _Narrative of a Year's Journey through Central
and Eastern Arabia_, i. 40.]
[Footnote 84: Watson, _op. cit._ p. 26 _sq._]
[Footnote 85: Aas, _Sjaeleliv og intelligens hos Dyr_, i. 72.]
[Footnote 86: Smellie, _Philosophy of Natural History_, i. 448.]
I find it inconceivable that anybody, in the face of such facts, could
still believe that the revenge of early man was at first essentially
indiscriminating, and became gradually discriminating from
considerations of social expediency. But by this I certainly do not
mean to deny that violation of the "self-feeling" is an extremely
common and powerful incentive to resentment. It is so {39} among
savage[87] and civilised men alike; even dogs and monkeys get angry
when laughed at. Nothing more easily rouses in us anger and a desire
for retaliation, nothing is more difficult to forgive, than an act
which indicates contempt, or disregard of our feelings. Long after the
bodily pain of a blow has ceased, the mental suffering caused by the
insult remains and calls for vengeance. This is an old truth often
told. According to Seneca, "the greater part of the things which
enrage us are insults, not injuries."[88] Plutarch observes that,
though different persons fall into anger for different reasons, yet in
nearly all of them is to be found the idea of their being despised or
neglected.[89] "Contempt," says Bacon, "is that which putteth an edge
upon anger, as much, or more, than the hurt itself."[90] But, indeed,
there is no need to resort to different principles in order to explain
the resentment excited by different kinds of pain. In all cases
revenge implies, primordially and essentially, a desire to cause pain
or destruction in return for hurt suffered, whether the hurt be bodily
or mental; and, if to this impulse is added a desire to enhance the
wounded "self-feeling," that does not interfere with the true nature
of the primary feeling of revenge. There are genuine specimens of
resentment without the co-operation of self-regarding pride;[91] and,
on the other hand, the reaction of the wounded "self-feeling" is not
necessarily, in the first place, concerned with the infliction of
pain. If a person has written a bad book which is severely criticised,
he may desire to repair his reputation by writing a better book, not
by humiliating his critics; and if he attempts the latter rather than
the former, he does so, not merely in order to enhance his
"self-feeling," {40} but because he is driven on by revenge. Dr. Boas
tells us that the British Columbia Indian, when his feelings are hurt,
sits down or lies down sullenly for days without partaking of food,
and that, "when he rises his first thought is, not how to take
revenge, but to show that he is superior to his adversary.[92]
[Footnote 87: Turner, 'Ethnology of the Ungava District,' in _Ann.
Rep. Bur. Ethn._ xi. 270 (Hudson Bay Indians). Georgi, _Russia_, iii.
205 (Aleuts). Sarasin, _Ergebnisse naturwiss. Forschungen auf Ceylon_,
iii. 537 (Veddahs). von Wrede, _Reise in [H.]adhramaut_, p. 157
(Bedouins). Winterbottom, _Native Africans in the Neighbourhood of
Sierra Leone_, i. 211.]
[Footnote 88: Seneca, _De ira_, iii. 28.]
[Footnote 89: Plutarch, _De cohibenda ira_, 12.]
[Footnote 90: Bacon, 'Essay LVII. Of Anger,' in _Essays_, p. 514.]
[Footnote 91: Bain, _Emotions and the Will_, p. 177.]
[Footnote 92: Boas, _First General Report on the Indians of British
Columbia_, read at the Newcastle-upon-Tyne meeting of the British
Association, 1889, p. 19.]
In the feeling of gratification which results from successful
resentment, the pleasure of power or superiority also may form a very
important element, but it is never the exclusive element.[93] As the
satisfaction of every desire is accompanied by pleasure, so the
satisfaction of the desire involved in resentment gives a pleasure by
itself. The angry or revengeful man who succeeds in what he aims at,
delights in the pain he inflicts for the very reason that he desired
to inflict it.
[Footnote 93: _Cf._ Ribot, _op. cit._ p. 221 _sq._]
Revenge thus only forms a link in a chain of emotional phenomena, for
which "non-moral resentment" may be used as a common name. In this
long chain there is no missing link. Anger without any definite desire
to cause suffering, anger with such a desire, more deliberate
resentment--all these phenomena are so inseparably connected with each
other that no one can say where one passes into another. Their common
characteristic is that they are mental states marked by an aggressive
attitude towards the cause of pain.
As to their origin, the evolutionist can hardly entertain a doubt.
Resentment, like protective reflex action, out of which it has
gradually developed, is a means of protection for the animal. Its
intrinsic object is to remove a cause of pain, or, what is the same, a
cause of danger. Two different attitudes may be taken by an animal
towards another which has made it feel pain: it may either shun or
attack its enemy. In the former case its action is prompted by fear,
in the latter by anger, and it depends on the circumstances which of
these emotions is the actual {41} determinant. Both of them are of
supreme importance for the preservation of the species, and may
consequently be regarded as elements in the animal's mental
constitution which have been acquired by means of natural selection in
the struggle for existence. We have already noted that, originally,
the impulse of attacking the enemy could hardly have been guided by a
representation of the enemy as suffering. But, as a successful attack
is necessarily accompanied by such suffering, the desire to produce it
naturally, with the increase of intelligence, entered as an important
element in resentment. The need for protection thus lies at the
foundation of resentment in all its forms.
This view is not new. More than one hundred and fifty years before
Darwin, Shaftesbury wrote of resentment in these words:--"Notwithstanding
its immediate aim be indeed the ill or punishment of another, yet it
is plainly of the sort of those [affections] which tend to the
advantage and interest of the self-system, the animal himself; and is
withal in other respects contributing to the good and interest of the
species."[94] A similar opinion is expressed by Butler, according to
whom the reason and end for which man was made liable to anger is,
that he might be better qualified to prevent and resist violence and
opposition, while deliberate resentment "is to be considered as a
weapon, put into our hands by nature, against injury, injustice, and
cruelty."[95] Adam Smith, also, believes that resentment has "been
given us by nature for defence, and for defence only," as being "the
safeguard of justice and the security of innocence."[96] Exactly the
same view is taken by several modern evolutionists as regards the
"end" of resentment, though they, of course, do not rest contented
with saying that this feeling has been given us by nature, but try to
explain in what way it has developed. "Among members of the same
species," says Mr. Herbert Spencer, "those individuals which have not,
in any considerable degree, resented aggressions, must have ever
tended to disappear, and to have left behind those which have with
some effect made counter-aggressions."[97] Mr. {42} Hiram Stanley,
too, quoting Junker's statement regarding the pigmies of Africa, that
"they are much feared for their revengeful spirit,"[98] observes that,
"other things being equal, the most revengeful are the most successful
in the struggle for self-conservation and self-furtherance."[99] This
evolutionist theory of revenge has been criticised by Dr. Steinmetz,
but in my opinion with no success. He remarks that the _feeling_ of
revenge could not have been of any use to the animal, even though the
_act_ of vengeance might have been useful.[100] But this way of
reasoning, according to which the whole mental life would be excluded
from the influence of natural selection, is based on a false
conception of the relation between mind and body, and, ultimately, on
a wrong idea of cause and effect.
[Footnote 94: Shaftesbury, 'Inquiry concerning Virtue or Merit,' ii.
2. 2, in _Characteristicks_, ii. 145.]
[Footnote 95: Butler, 'Sermon VIII.--Upon Resentment,' _op. cit._
p. 457.]
[Footnote 96: Adam Smith, _Theory of Moral Sentiments_, p. 113.]
[Footnote 97: Spencer, _Principles of Ethics_, i. 361.]
[Footnote 98: Junker, _Travels in Africa during the Years 1882-1886_,
p. 85.]
[Footnote 99: Hiram Stanley, _op. cit._ p. 180. _Cf._ also Guyau,
_Esquisse d'une Morale sans obligation ni sanction_, p. 162
_sq._]
[Footnote 100: Steinmetz, _Ethnol. Studien, &c._ i. 135.]
From non-moral resentment we shall pass to the emotion of moral
indignation. That this is closely connected with anger is indicated by
language itself: we may feel indignant on other than moral grounds,
and we may feel "righteous anger." The relationship between these
emotions is also conspicuous in their outward expressions, which, when
the emotion is strong enough, present similar characteristics. When
possessed with strong moral indignation, a person looks as if he were
angry,[101] and so he really is, in the wider sense of the term. This
relationship has not seldom been recognised by moralists, though it
has more often been forgotten. Some two thousand years ago Polybius
wrote:--"If a man has been rescued or helped in an hour of danger,
and, instead of showing gratitude to his preserver, seeks to do him
harm, it is clearly probable that the rest will be displeased and
offended with him when they know it, sympathising with their neighbour
and imagining themselves in his case. Hence arises a notion in every
breast of the meaning and theory of duty, which is in fact the
beginning and end of justice."[102] Hartley regarded resentment and
gratitude {43} as "intimately connected with the moral sense."[103]
Adam Smith made the resentment of "the impartial spectator" a
corner-stone of his theory of the moral sentiments.[104] Butler found
the essential difference between sudden and deliberate anger to
consist in this, that the "natural proper end" of the latter is "to
remedy or prevent only that harm which implies, or is supposed to
imply, injury or moral wrong."[105] And to Stuart Mill, the sentiment
of justice, at least, appeared to be derived from "the animal desire
to repel or retaliate a hurt or damage to oneself, or to those with
whom one sympathises."[106]
[Footnote 101: Notice, for instance, Michelangelo's Moses.]
[Footnote 102: Polybius, _Historiae_, vi. 6.]
[Footnote 103: Hartley, _Observations on Man_, i. 520.]
[Footnote 104: Adam Smith, _op. cit._ _passim_.]
[Footnote 105: Butler, _op. cit._ p. 458.]
[Footnote 106: Stuart Mill, _Utilitarianism_, p. 79.]
Moral indignation, or disapproval, like non-moral resentment, is a
reactionary attitude of mind directed towards the cause of inflicted
pain. In a subsequent chapter we shall see that both are in a similar
way determined by the answer given to the question, What is the cause
of the pain?--a fact which, whilst strongly confirming their affinity,
throws light upon some of the chief characteristics of the moral
consciousness. Nay, moral indignation resembles non-moral resentment
even in this respect that, in various cases, the aggressive reaction
turns against innocent persons who did not commit the injury which
gave rise to it. The collective responsibility assumed in certain
types of blood-revenge is an evidence of this in so far as such
revenge is not merely a matter of individual practice, but has the
sanction of custom. And even punishment, which, in the strict sense of
the term, is a more definite expression of public, or moral,
indignation than the custom of private retaliation, is often similarly
indiscriminate.
Like revenge, and for similar reasons, punishment sometimes falls on a
relative of the culprit in cases when he himself cannot be caught. In
Fiji, says Mr. Williams, "the virtue of vicarious suffering is
recognised." It once happened that a warrior left his charged musket
so {44} carelessly that it went off and killed and wounded some
individuals, whereupon he fled himself. His case was judged worthy of
death by the chiefs of the tribe, and the offender's aged father was
in consequence seized and strangled.[107]
[Footnote 107: Williams and Calvert, _Fiji_, p. 24.]
In other cases an innocent person is killed for the offence of
another, not because the offender cannot be seized, but with a view to
inflicting on him a loss, according to the rule of like for like. The
punishment, then, is meant for the culprit, though the chief sufferer
is somebody else. According to the Laws of [Hv]ammurabi, "if a builder
has built a house for a man and has not made strong his work, and the
house he built has fallen, and he has caused the death of the owner,
that builder shall be put to death." But "if he has caused the son of
the owner of the house to die, one shall put to death the son of that
builder."[108] Similarly, "if a man has struck a gentleman's daughter
and caused her to drop what is in her womb, he shall pay ten shekels
of silver for what was in her womb." But "if that woman has died, one
shall put to death his daughter."[109] The following custom which Mr.
Gason reports, as existing among the Australian Dieyerie, in case a
man should unintentionally kill another in a fight, is probably based
on a similar principle:--"Should the offender have an elder brother,
then he must die in his place; or, should he have no elder brother,
then his father must be his substitute; but in case he has no male
relative to suffer for him, then he himself must die."[110]
[Footnote 108: _Laws of [Hv]ammurabi_, 229 _sq._]
[Footnote 109: _Ibid._ 209 _sq._]
[Footnote 110: Gason, 'Manners and Customs of the Dieyerie Tribe,' in
Woods, _Native Tribes of South Australia_, p. 265.]
This extreme disregard of the suffering of guiltless persons is
probably not so much due to downright callousness as to a strong
feeling of family solidarity. The same feeling is very obvious in
those numerous instances in which both the criminal himself and
members of his family are implicated in the punishment.
{45} Among the Atkha Aleuts, the punishment for certain offences was
sometimes carried so far as to include the wife of the offender.[111]
Among the E[(w]e-speaking peoples of the Slave Coast, "a person found
guilty of having procured, or endeavoured to procure, the death of
another through the agency of the gods Huntin and Loko, is put to
death, and his family is generally enslaved as well."[112] Among the
Matabele, if a person is declared by the witch-doctor to have caused
injury to somebody else by making charms, he "is immediately put to
death, his wife and the whole of his family sharing his fate."[113]
Among the Shilluks of the White Nile, "murder is punished with death
to the criminal and the forfeiture of wives and children to the
Sultan, who retains them in bondage."[114] Among the Kafirs, in cases
of trespasses against the king, the sentence falls not only on the
individual, but on his whole house.[115] In Madagascar, the code of
native laws, up to recent time, reduced for many offences the
culprit's wife and children to slavery.[116] In some parts of the
Malay Archipelago, according to Crawfurd, a father and child are
considered almost inseparable, hence when the one is punished the
other seldom escapes.[117] In Bali, the law prescribes that for
certain kinds of sorcery the offender shall be put to death. It adds,
"If the matter be very clearly made out, let the punishment of death
be extended to his father and his mother, to his children and to his
grand-children; let none of them live; let none connected with one so
guilty remain on the face of the land, and let their goods be in like
manner confiscated."[118]
[Footnote 111: Petroff, 'Report on Alaska,' in _Tenth Census of the
United States_, p. 158.]
[Footnote 112: Ellis, _E[(w]e-speaking Peoples of the Slave Coast_,
p. 225.]
[Footnote 113: Decle, _Three Years in Savage Africa_, p. 153.]
[Footnote 114: Petherick, _Travels in Central Africa_, ii. 3.]
[Footnote 115: Ratzel, _History of Mankind_, ii. 445.]
[Footnote 116: Sibree, _The Great African Island_, p. 181. Ellis,
_History of Madagascar_, i. 174, 175, 193.]
[Footnote 117: Crawfurd, _op. cit._ i. 82.]
[Footnote 118: _Ibid._ iii. 138.]
The Chinese doctrine of responsibility is to a great extent based
upon family solidarity; in great crimes all the male relatives of the
offender are held responsible for his deed. Every male relative, of
whatever degree, who may be dwelling under the roof of a man guilty of
treason, is doomed to death, with the exception of young boys, who are
allowed their lives, but on the condition that they are made eunuchs
for service in the imperial palace.[119] In ancient Mexico, traitors
and conspirators were not only themselves killed, but their children
and relatives {46} were made slaves to the fourth generation.[120]
According to an Athenian law, a man who committed sacrilege or
betrayed his country was banished with all his children.[121]
Aristotle mentions a case of sacrilege in which "the bones of the
guilty dead were disentombed and cast beyond the borders of Attica;
the living clan were condemned to perpetual exile, and the city was
subsequently purified."[122] The Macedonian law involved in punishment
the kindred of conspirators against the monarch.[123] Dionysius of
Halicarnassus states that some of the Greeks "think it reasonable to
put to death the sons of tyrants together with their fathers, whereas
others punish them with perpetual banishment"; and he contrasts this
with the Roman principle that "the sons shall be exempted from all
punishment, whose fathers are offenders, whether they happen to be the
sons of tyrants, of parricides, or of traitors."[124] But after the
end of the Marsic, and civil wars, this rule was transgressed;[125]
and later on Arcadius, though expressly ordaining that the punishment
of the crime shall extend to the criminal alone,[126] took a different
view of the punishment for treason. By a special extension of his
imperial clemency, he allows the sons of the criminal to live,
although in strict justice, being tainted with hereditary guilt, they
ought to suffer the punishment of their father. But they shall be
incapable of inheritance; they shall be abandoned to the extreme of
poverty and perpetual indigence; they shall be excluded from all
honours and from the participation of religious rites; the infamy of
their father shall ever attend them, and such shall be the misery of
their condition, that life shall be a punishment and death a
comfort.[127] Among the Anglo-Saxons, before the time of Cnut, the
child, even the infant in the cradle, was liable to be sold into
slavery for the payment of penalties incurred by the father, being
"held by the covetous to be equally guilty as if it had
discretion."[128] Even later, the child of an outlaw, following the
condition of the father, also became an outlaw; and this grievance was
only partly remedied by Edward the Confessor, who relieved from the
consequences of the father's outlawry such children as were born
before he was {47} outlawed, but not such as were born afterwards.[129]
During the Middle Ages it was the invariable rule to confiscate the
entire property of an impenitent heretic, a rule which was justified
on the ground that his crime is so great that something of his
impurity falls upon all related to him.[130] The Pope Alexander IV.
also excluded the descendants of an heretic to the second generation
from all offices in the Church.[131] Owing to religious influence,
illegitimate children were not only deprived of the title to
inheritance, but they were treated by some law-books as almost
rightless beings, on a par with robbers and thieves.[132] If a person
committed suicide, his goods were confiscated, and, according to a
French mediæval law, his wife was besides deprived of her own private
property.[133] Even in the latter half of the eighteenth century, in
France, in the case of an attempt made against the life of the king,
the whole family of the criminal was banished.[134] Nay, in various
European countries, up to quite recent times--in England till
1870--forfeiture of property has been the punishment prescribed for
certain crimes, including suicide;[135] which means, if not actually
the imposition of penalties on the survivors in a case where the
culprit himself is out of reach, at least a gross disregard of their
ordinary rights of property. It is hardly necessary to point out how
often, in the very society in which we live, "social punishments" are
inflicted upon children for their father's wrongs.
[Footnote 119: Douglas, _Society in China_, p. 71 _sq._ _Ta Tsing Leu
Lee_, sec. ccliv. p. 270.]
[Footnote 120: Bancroft, _Native Races of the Pacific States_, ii. 459.]
[Footnote 121: Meursius, _Themis Attica_, ii. 2, in Gronovius,
_Thesaurus Graecarum Antiquitatum_, v. 1968.]
[Footnote 122: Aristotle, _De republica Atheniensium_ 1. _Cf._
_ibid._ 20.]
[Footnote 123: Curtius Rufus, _De gestis Alexandri Magni_, vi. 11. 20.]
[Footnote 124: Dionysius of Halicarnassus, _Antiquitates Romanae_,
viii. 80.]
[Footnote 125: _Ibid._ viii. 80.]
[Footnote 126: _Codex Iustinianus_, ix. 47. 22.]
[Footnote 127: _Ibid._ ix. 8. 5.]
[Footnote 128: Laws of Cnut, ii. 77. _Cf._ Lappenberg, _History of
England under the Anglo-Saxon Kings_, ii. 414; Wilda, _op. cit._ p. 906.]
[Footnote 129: _Leges Edwardi Confessoris_, 19.]
[Footnote 130: Lecky, _History of Rationalism in Europe_, ii. 36,
n. 1. Eicken, _Geschichte und System der mittelalterlichen
Weltanschauung_, p. 572 _sq._ Paramo, _De origine et progressu Sancti
Inquisitionis_ p. 587 _sq._]
[Footnote 131: Eicken, _op. cit._ p. 573.]
[Footnote 132: _Ibid._ p. 573.]
[Footnote 133: Du Boys, _Histoire du droit criminel des peuples
modernes_, ii. 236.]
[Footnote 134: Hertz, _Voltaire und die französische Strafrechtspflege
im achtzehnten Jahrhundert_, p. 27.]
[Footnote 135: Stephen, _History of the Criminal Law of England_, i.
487 _sq._; iii. 105.]
For the explanation of these facts we have to remember what has been
said before about collective responsibility in the case of revenge.
Speaking of the Chinese doctrine of family solidarity, Dr. de Groot
observes that, "under the influence of this doctrine, families, not
men individually, came to be regarded, from the Government's point of
view, as the smallest particles, the molecules of the nation, each
individual being swallowed up in the circle of his kinsfolk."[136]
Such a doctrine assumes that the other members of the family-group
are, in a way, accessories {48} to any crime committed by a
fellow-member. "Human nature," says Lord Kames, "is not so perverse,
as without veil or disguise to punish a person acknowledged to be
innocent. An irregular bias of imagination, which extends the
qualities of the principal to its accessories, paves the way to that
unjust practice. This bias, strengthened by indignation against an
atrocious criminal, leads the mind hastily to conclude, that all his
connections are partakers of his guilt."[137] Among the ancients we
also meet with a strong belief that, according to the course of
nature, wicked fathers have wicked sons. "That which is begot," says
Plutarch, "is not, like some production of art unlike the begetter,
for it proceeds from him, and is not merely produced by him, so that
it appropriately receives his share, whether that be honour or
punishment."[138] To destroy, or to make harmless, the family of an
offender may be, not only an act of retaliation, but a precaution;
according to an old Greek adage, "a man is a fool if he kills the
father and leaves the sons alive."[139] This especially holds good for
treason, which generally suggests accomplices; and of all crimes for
which penalties are imposed upon other individuals besides the
culprit, treason is probably the most common. This crime is also
particularly apt to evoke the hatred of those who have the power to
punish, hence the punishment of it, being closely allied to an act of
revenge, is often inflicted without due discrimination. Moreover, by
being extended to the criminal's family, the punishment falls more
heavily upon himself as well. Again, in case the crime is of a
sacrilegious character, it is supposed to pollute everybody connected
with the criminal, and even the whole community where he dwells.
[Footnote 136: de Groot, _Religious System of China_ (vol. ii. book)
i. 539.]
[Footnote 137: Kames, _Sketches of the History of Man_, iv. 148.]
[Footnote 138: Plutarch, _De sera numinis vindicta_, 16. _Cf._
Dionysius of Halicarnassus, _op. cit._ viii. 80.]
[Footnote 139: Schmidt, _Ethik der alten Griechen_, ii. 126.]
In their administration of justice, gods are still more indiscriminate
than men. They hold the individual responsible for the whole to which
he belongs. They {49} punish the community for the sins of one of its
members. They visit the iniquity of the fathers and forefathers upon
the children and descendants.
The Sibuyaus, a tribe belonging to the Sea Dyaks, "are of opinion
that an unmarried girl proving with child must be offensive to the
superior powers, who, instead of always chastising the individual,
punish the tribe by misfortunes happening to its members. They,
therefore, on the discovery of the pregnancy fine the lovers, and
sacrifice a pig to propitiate offended Heaven, and to avert that
sickness or those misfortunes that might otherwise follow; and they
inflict heavy mulcts for every one who may have suffered from any
severe accident, or who may have been drowned within a month before
the religious atonement was made."[140] According to Chinese beliefs,
whole kingdoms are punished for the conduct of their rulers by spirits
who act as avengers with orders or approval from the _Tao_, or
Heaven.[141] Prevalent opinion in China, continuously inspired anew by
literature of all times and ages, further admits that spiritual
vengeance may come down upon the culprit's offspring in the form of
disease or death.[142] When a maimed or deformed child is born the
Japanese say that its parents or ancestors must have committed some
great sin.[143] The Vedic people ask Varuna to forgive the wrongs
committed by their fathers.[144] Says the poet:--"What we ourselves
have sinned in mercy pardon; my own misdeeds do thou, O god, take from
me, and for another's sin let me not suffer."[145] According to the
ancient Greek theory of divine retribution, the community has to suffer
for the sins of some of its members, children for the sins of their
fathers.[146] Hesiod says that often a whole town is punished with
famine, pestilence, barrenness of its women, or loss of its army or
vessels for the misdeeds of a single individual.[147] Cr[oe]sus atoned
by the forfeiture of his kingdom for the crime of Gyges, his fifth
ancestor, who had murdered his master and usurped his throne.[148]
Cytissorus brought down the anger of gods upon his descendants by {50}
rescuing Athamas, whom the Achaians intended to offer up as an
expiatory sacrifice on behalf of their country.[149] When hearing of
the death of his wife, Theseus exclaims, "This must be a heaven-sent
calamity in consequence of the sins of an ancestor, which from some
remote source I am bringing on myself."[150] According to Hebrew
notions, sin affects the nation through the individual and entails
guilt on succeeding generations.[151] The anger of the Lord is kindled
against the children of Israel on account of Achan's sin.[152] The sin
of the sons of Eli is visited on his whole house from generation to
generation.[153] Because Saul has slain the Gibeonites, the Lord
sends, in the days of David, a three years' famine, which ceases only
when seven of Saul's sons are hanged.[154] The sins of Manasseh are
expiated even by the better generation under Josiah.[155] The notion
of a jealous God who visits the iniquity of the fathers upon the
children unto the third and fourth generation of them that hate
Him,[156] is also frequently met with in the Old Testament Apocrypha.
"The inheritance of sinners' children shall perish, and their
posterity shall have a perpetual reproach."[157] "The seed of an
unrighteous bed shall be rooted out."[158] The same idea has survived
among Christian peoples. It was referred to in Canon Law as a
principle to be imitated by human justice,[159] and by Innocent III.
in justification of a bull which authorised the confiscation of the
goods of heretics.[160] Up to quite recent times it was a common
belief in Scotland that the punishment of the cruelty, oppression, or
misconduct of an individual descended as a curse on his children to
the third and fourth generation. It was not confined to the common
people; "all ranks were influenced by it; and many believed that if
the curse did not fall upon the first or second generation it would
inevitably descend upon the succeeding."[161] In the dogma that the
whole human race is condemned on {51} account of the sin of its first
parents, the doctrine of collective responsibility has reached its pitch.
[Footnote 140: St. John, _Life in the Forests of the Far East_, i. 63.]
[Footnote 141: de Groot, _op. cit._ (vol. iv. book) ii. 432, 435.
Davis, _China_, ii. 34 _sq._]
[Footnote 142: de Groot, _op. cit._ (vol. iv. book) ii. 452.]
[Footnote 143: Griffis, _Mikado's Empire_, p. 472.]
[Footnote 144: _Rig-Veda_, vii. 86. 5. _Cf._ _Atharva-Veda_, v. 30. 4;
x. 3. 8.]
[Footnote 145: _Rig-Veda_, ii. 28. 9. _Cf._ _ibid._ vi. 51. 7;
vii. 52. 2.]
[Footnote 146: Nägelsbach, _Nachhomerische Theologie des griechischen
Volksglaubens_, p. 34 _sq._ Schmidt, _op. cit._ i. 67 _sqq._ Farnell,
_Cults of the Greek States_, i. 76 _sq._]
[Footnote 147: Hesiod, _Opera et dies_, 240 _sqq._]
[Footnote 148: Herodotus, i. 91.]
[Footnote 149: _Ibid._ vii. 197.]
[Footnote 150: Euripides, _Hippolytus_, 831 _sq._]
[Footnote 151: Oehler, _Theology of the Old Testament_, i. 236.
Dorner, _System of Christian Doctrine_, ii. 325. Montefiore, _Hibbert
Lectures_, p. 103. Robertson Smith, _Religion of the Semites_, p. 421.
Schultz, _Old Testament Theology_, ii. 308. Bernard, 'Sin,' in
Hastings, _Dictionary of the Bible_, iv. 530, 534.]
[Footnote 152: _Joshua_, vii. 1.]
[Footnote 153: _1 Samuel_, ii. 27 _sqq._]
[Footnote 154: _2 Samuel_, xxi. 1 _sqq._]
[Footnote 155: _Deuteronomy_, i. 37; iii. 26; iv. 21. _2 Kings_,
xxiii. 26; xxiv. 3. _Jeremiah_, xv. 4 _sqq._]
[Footnote 156: _Exodus_, xx. 5; xxiv. 7, _Numbers_, xiv. 18.
_Deuteronomy_, v. 9. _Cf._ _Leviticus_, xxvi. 39.]
[Footnote 157: _Ecclesiasticus_, xli. 6. _Cf._ _ibid._ xvi. 4;
xli. 5, 7 _sqq._]
[Footnote 158: _Wisdom of Solomon_, iii. 16. _Cf._ _ibid._ iii. 12,
13, 17 _sqq._]
[Footnote 159: Eicken, _op. cit._ p. 572.]
[Footnote 160: Lecky, _History of Rationalism in Europe_, ii. 37 n.]
[Footnote 161: Stewart, _Sketches of the Character, &c., of the
Highlanders of Scotland_, p. 127.]
Men originally attribute to their gods mental qualities similar to
their own, and imagine them to be no less fierce and vindictive than
they are themselves. Thus the retribution of a god is, in many cases,
nothing but an outburst of sudden anger, or an act of private revenge,
and as such particularly liable to comprise, not only the offender
himself, but those connected with him. Plutarch even argued that the
punishments inflicted by gods on cities for ill-deeds committed by
their former inhabitants allowed of a just defence, on the ground that
a city is "one continuous entity, a sort of creature that never
changes from age, or becomes different by time, but is ever
sympathetic with and conformable to itself," and therefore "answerable
for whatever it does or has done for the public weal, as long as the
community by its union and federal bonds preserves its unity."[162] He
further observes that a bad man is not bad only when he breaks out
into crime, but has the seeds of vice in his nature, and that the
deity, knowing the nature and disposition of every man, prefers
stifling crime in embryo to waiting till it becomes ripe.[163]
[Footnote 162: Plutarch, _De sera numinis vindicta_, 15.]
[Footnote 163: _Ibid._ 20.]
But there are yet special reasons for extending the retribution of a
god beyond the limits of individual guilt. Whilst the resentment of a
man is a matter of experience, that of a god is a matter of inference.
That some particular case of suffering is a divine punishment, is
inferred either from its own peculiar character, suggesting the direct
interference of a god, or from the assumption that a certain act, on
account of its offensiveness, cannot be left unpunished. Now
experience shows that, in many instances, the sinner himself escapes
all punishment, leading a happy life till his death; hence the
conclusion is near at hand that any grave misfortune which befalls his
descendants, is the delayed retribution of the offended {52} god.[164]
Such a conclusion is quite in harmony with the common notions of
divine power. It especially forces itself upon a mind which has no
idea of a hell with _post mortem_ punishments for the wicked. And,
where the spirit of a man after his death is believed to be still
ardently concerned for the welfare of his family,[165] the affliction
of his descendants naturally appears as a punishment inflicted upon
himself. As Dr. de Groot observes, the doctrine of the Chinese, that
spiritual vengeance may descend on the offender's offspring, tallies
perfectly with their conception "that the severest punishment which
may be inflicted on one, both in his present life and the next, is
decline or extermination of his male issue, leaving nobody to support
him in his old age, nobody to protect him after his death from misery
and hunger by caring for his corpse and grave, and sacrificing to his
manes."[166]
[Footnote 164: _Cf._ Isocrates, _Oratio de pace_, 120; Cicero, _De
natura Deorum_, iii. 38; Nägelsbach, _op. cit._ p. 33 _sq._]
[Footnote 165: _Cf._ Schmidt, _op. cit._ i. 71 _sq._ (ancient
Greeks).]
[Footnote 166: de Groot, _op. cit._ (vol. iv. book) ii. 452.]
The retributive sufferings which innocent persons have to undergo in
consequence of the sins of the guilty, are not always supposed to be
inflicted upon them directly, as a result of divine resentment. They
are often attributed to infection. Sin is looked upon in the light of
a contagious matter which may be transmitted from parents to children,
or be communicated by contact.
This idea is well illustrated by the funeral ceremonies of the
Tahitians. "When the house for the dead had been erected, and the
corpse placed upon the platform or bier, the priest ordered a hole to
be dug in the earth or floor near the foot of the platform. Over this
he prayed to the god by whom it was supposed the spirit of the
deceased had been required. The purport of his prayer was that all the
dead man's sins, and especially that for which his soul had been
called to the _po_, might be deposited there, that they might not
attach in any degree to the survivors, and that the anger of the god
might be appeased." All who were employed in embalming the dead were
also, during the process, carefully avoided by every person, {53} as
the guilt of the crime for which the deceased had died was believed to
contaminate such as came in contact with the corpse; and as soon as
the ceremony of depositing the sins in the hole was over, all who had
touched the body or the garments of the deceased, which were buried or
destroyed, fled precipitately into the sea to cleanse themselves from
the pollution.[167] In one part of New Zealand "a service was
performed over an individual, by which all the sins of the tribe were
supposed to be transferred to him, a fern stalk was previously tied to
his person, with which he jumped into the river and there unbinding,
allowed it to float away to the sea, bearing their sins with it."[168]
The Iroquois White Dog Feast, which was held every year in January,
February, or early in March,[169] implied, according to most
authorities, a ceremony of sin-transference.[170] The following
description of it is given by Mrs. Jemison, a white woman who was
captured by the Indians in the year 1755:--Two white dogs, without
spot or blemish, are strangled and hung near the door of the
council-house. On the fourth or fifth day the "committee," consisting
of from ten to twenty active men who have been appointed to
superintend the festivities, "collect the evil spirit, or drive it off
entirely, for the present, and also concentrate within themselves all
the sins of their tribe, however numerous or heinous. On the eighth or
ninth day, the committee having received all the sin, as before
observed, into their own bodies, they take down the dogs, and after
having transfused the whole of it into one of their own number, he, by
a peculiar sleight of hand, or kind of magic, works it all out of
himself into the dogs. The dogs, thus loaded with all the sins of the
people, are placed upon a pile of wood that is directly set on fire.
Here they are burnt, together with the sins with which they were
loaded."[171] Among the Badágas of India, at a burial, "an elder,
standing by the corpse, offers up a prayer that the dead may not go to
hell, that the sins committed on earth may be forgiven, and that the
sins may be borne by a calf, which is let loose in the jungle and used
thenceforth for no manner of work."[172] At Utch-Kurgan, in Turkestan,
Mr. Schuyler saw an old man, constantly {54} engaged in prayer, who
was said to be an _iskatchi_, that is, "a person who gets his living
by taking on himself the sins of the dead, and thenceforth devoting
his life to prayer for their souls."[173]
[Footnote 167: Ellis, _Polynesian Researches_, i. 401 _sqq._]
[Footnote 168: Taylor, _Te Ika a Maui_, p. 101.]
[Footnote 169: Beauchamp, 'Iroquois White Dog Feast,' in _American
Antiquarian_, vii. 236 _sq._ Hale, 'Iroquois Sacrifice of the White
Dog,' _ibid._ vii. 7.]
[Footnote 170: Beauchamp, _loc. cit._ p. 237 _sq._]
[Footnote 171: Seaver, _Narrative of the Life of Mrs. Mary Jemison_,
p. 158 _sqq._ _Cf._ Mr. Clark's description, quoted by Beauchamp,
_loc. cit._ p. 238.]
[Footnote 172: Thurston, 'Badágas of the Nilgiris,' in the Madras
Government Museum's _Bulletin_, ii. 4. _Cf._ Metz, _Tribes inhabiting
the Neilgherry Hills_, p. 78; Graul, _Reise nach Ostindien_,
iii. 296 _sqq._]
[Footnote 173: Schuyler, _Turkistan_, ii. 28.]
In ancient Peru, an Inca, after confession of guilt, bathed in a
neighbouring river, and repeated this formula:--"O thou River, receive
the sins I have this day confessed unto the Sun, carry them down to
the sea, and let them never more appear."[174] According to Vedic
beliefs, sin is a contamination which may be inherited, or contracted
in various ways,[175] and of which the sinner tries to rid himself by
transferring it to some enemy,[176] or by invoking the gods of water
or fire.[177] It is washed out by Varuna, in his capacity of a
water-god,[178] and by Trita, another water-god,[179] and even by "the
Waters" in general, as appears from the prayer addressed to them:--"O
Waters, carry off whatever sin is in me and untruth."[180] For a
similar reason, as it seems, water became in the later, Brahmanic age,
the "essence (sap) of immortality"[181] and the belief in its
purifying power still survives in modern India. No sin is too heinous
to be removed, no character too black to be washed clean, by the
waters of Ganges.[182] At sacred places of pilgrimage on the banks of
rivers, the Hindus perform special religious shavings for the purpose
of purifying soul and body from pollution; and persons who have
committed great crimes or are troubled by uneasy consciences, travel
hundreds of miles to such holy places where "they may be released from
every sin by first being relieved of every hair and then plunging into
the sacred stream."[183] So, also, according to Hindu beliefs, contact
with cows purifies, and, as in the Parsi ritual, the dung and urine of
cows have the power of preventing or cleansing away not only material,
but moral defilements.[184] In post-Homeric Greece, individuals and a
whole people were cleansed from their sins by water or some other
material means of purification.[185] Plutarch, after observing {55}
that "there are other properties that have connection and
communication, and that transfer themselves from one thing to another
with incredible quickness and over immense distances," asks whether it
is "more wonderful that Athens should have been smitten with a plague
which started in Arabia, than that, when the Delphians and Sybarites
became wicked, vengeance should have fallen on their descendants."[186]
The Hebrews annually laid the sins of the people upon the head of a
goat, and sent it away into the wilderness;[187] and they cleansed
every impurity with consecrated water or the sprinkling of blood.[188]
To this day, the Jews in Morocco, on their New-Year's day, go to the
sea-shore, or to some spring, and remove their sins by throwing stones
into the water. The words of the Psalmist, "wash me thoroughly from
mine iniquity, and cleanse me from my sin,"[189] were not altogether a
figure of speech; nor is Christian baptism originally a mere symbol.
Its result is forgiveness of sins;[190] by the water, as a medium of
the Holy Ghost, "the stains of sin are washed away."[191] That sin is
contagious has been expressly stated by Christian writers. Novatian
says that "the one is defiled by the sin of the other, and the
idolatry of the transgressor passes over to him who does not
transgress."[192]
[Footnote 174: Tylor, _Primitive Culture_, ii. 435.]
[Footnote 175: _Atharva-Veda_, v. 30. 4; x. 3. 8; vii. 64. i. _sq._
_Cf._ Oldenberg, _Religion des Veda_, p. 290.]
[Footnote 176: _Rig-Veda_, x. 36. 9; x. 37. 12.]
[Footnote 177: _Ibid._ x. 164. 3. _Atharva-Veda_, vii. 64. 2. _Cf._
Kaegi, _Rig-Veda_, p. 157; Oldenberg, _op. cit._ pp. 291-298, 319 _sqq._]
[Footnote 178: _Cf._ Hopkins, _Religions of India_ pp. 65 n. 1, 66.]
[Footnote 179: _Atharva-Veda_, vi. 113. 1 _sqq._]
[Footnote 180: _Rig-Veda_, i. 23. 22. Sin is also looked upon as a
galling chain from the captivity of which release is besought (_ibid._
i. 24. 9, 13 _sq._; ii. 27. 16; ii. 28. 5; v. 85. 8; vi. 74. 3; &c.).]
[Footnote 181: Hopkins, _op. cit._ p. 196.]
[Footnote 182: Monier Williams, _Br[=a]hmanism and Hind[=u]uism_, p.
347.]
[Footnote 183: _Ibid._ p. 375.]
[Footnote 184: Barth, _Religions of India_, p. 264. _Laws of Manu_,
iii. 206; v. 105, 121, 124; xi. 110, 203, 213.]
[Footnote 185: Stengel, _Die griechischen Kultusaltertümer_, p. 138
_sqq._]
[Footnote 186: Plutarch, _De sera numinis vindicta_, 14.]
[Footnote 187: _Leviticus_, xvi.]
[Footnote 188: _Numbers_, viii. 7; xix. 4-9, 13 _sqq._; xxxi. 23.
_Leviticus_, xvi. 14 _sqq._]
[Footnote 189: _Psalms_, li. 2.]
[Footnote 190: Harnack, _op. cit._ ii. 140 _sqq._]
[Footnote 191: _Catechism of the Council of Trent_, ii. 2. 10, p. 162.]
[Footnote 192: Quoted by Harnack, _op. cit._ ii. 119.]
In this materialistic conception of sin there is an obvious confusion
between cause and effect, between the sin and its punishment. Sin is
looked upon as a substance charged with injurious energy, which will
sooner or later discharge itself to the discomfort or destruction of
anybody who is infected with it. The sick Chinese says of his disease,
"it is my sin," instead of saying, "it is the punishment of my
sin."[193] Both in Hebrew and in the Vedic language the word for sin
is used in a similar way.[194] "In the consciousness of the pious
Israelite," Professor Schultz observes, "sin, guilt, and punishment,
are ideas so directly connected that the words for them are
interchangeable."[195] {56} The prophets frequently and emphatically
declare that there is in sin itself a power which must destroy the
sinner.[196] So, too, as M. Bergaigne points out, there is in the
Vedic notion of sin, "la croyance à une sorte de vertu propre du
péché, grâce à laquelle il produit de lui-même son effet nécessaire, à
savoir le châtiment du pécheur."[197] Sins are thus treated like
diseases, or the germs of diseases, of which patients likewise try to
rid themselves by washing or burning, or which are described in the
very language often applied to sins as fetters which hold them
chained.[198] All kinds of evil are in this way materialised. The
Shamanistic peoples of Siberia, says Georgi, "hold evil to be a
self-existing substance which they call by an infinitude of particular
names."[199] According to Moorish ideas, _l-bas_, or "misfortune," is
a kind of infection, which may be contracted by contact and removed by
water or fire; hence in all parts of Morocco water- and
fire-ceremonies are performed annually, either on the _[(]âshur_-eve
or at midsummer, _l-[(]an[s.]ara_, for the purpose of purifying men,
animals, and fruit-trees.[200] And just as the Moors, on these {57}
occasions, rid themselves of _l-bas_, so, in modern Greece, the women
make a fire on Midsummer Eve, and jump over it, crying, "I leave my
sins."[201]
[Footnote 193: Edkins, _Religion in China_, p. 134.]
[Footnote 194: Holzman, 'Sünde und Sühne in den Rigvedahymnen und den
Psalmen,' in _Zeitschr. f. Völkerpsychologie_, xv. 9.]
[Footnote 195: Schultz, _op. cit._ ii. 306. _Cf._ Curtiss, _Primitive
Semitic Religion To-day_, p. 124 _sqq._]
[Footnote 196: _Ibid._ ii. 308 _sq._]
[Footnote 197: Bergaigne, _Religion védique_, iii. 163. _Cf._
_Rig-Veda_, x. 132. 5.]
[Footnote 198: Oldenberg, _op. cit._ p. 288.]
[Footnote 199: Georgi, _Russia_, iii. 257.]
[Footnote 200: The various methods of transferring or expelling evil,
which abundantly illustrate the materialistic notions held about it,
have been treated by Dr. Frazer with unrivalled learning (_The Golden
Bough_), iii. 1 _sqq._ I have little doubt that the fire- and
water-ceremonies, once practised all over Europe on a certain day
every year, belong to the same group of rites. "The best general
explanation of these European fire-festivals," says Dr. Frazer
(_ibid._ iii. 300), "seems to be the one given by Mannhardt, namely,
that they are sun-charms or magical ceremonies intended to ensure a
proper supply of sunshine for men, animals, and plants." But it should
be noticed that in Europe, as in Morocco, a purificatory purpose is
expressly ascribed to them by the very persons by whom they are
practised (see Frazer, _op. cit._ iii. 238 _sqq._), that they
alternate with lustration by water (see Grimm, _Teutonic Mythology_,
ii. 588 _sqq._). On the other hand, in Dr. Frazer's exhaustive
description of these ceremonies I fail to discover a single fact which
would make Mannhardt's hypothesis at all probable. Dr. Frazer says
(_op. cit._ iii. 301), "The custom of rolling a burning wheel down a
hillside, which is often observed at these times, seems a very natural
imitation of the sun's course in the sky." To me it appears as a
method of distributing the purificatory energy over the fields or
vineyards. Notice, for instance, the following statements:--In the
Rhon Mountains, Bavaria, "a wheel wrapt in combustibles, was kindled
and rolled down the hill; and the young people rushed about the fields
with their burning torches and brooms. . . . In neighbouring villages
of Hesse . . . it is thought that wherever the burning wheels roll,
the fields will be safe from hail and storm" (_ibid._ iii. 243 _sq._).
At Volkmarsen, in Hesse, "in some places tar-barrels or wheels wrapt
in straw used to be set on fire, and then sent rolling down the
hillside. In others the boys light torches and whisps of straw at the
bonfires and rush about brandishing them in their hands" (_ibid._ iii.
254). In Münsterland, "boys with blazing bundles of straw run over the
fields to make them fruitful" (_ibid._ iii. 255). Dr. Frazer says
(_ibid._ iii. 301), "The custom of throwing blazing discs, shaped
liked suns, into the air is probably also a piece of imitative magic."
But why should it not, in conformity with other practices, be regarded
as a means of purifying the air? According to old writers, the object
of Midsummer fires was to disperse the aerial dragons (_ibid._ iii.
267). It would carry me too far from my subject to enter into further
details. I have dealt with the matter in my article 'Midsummer Customs
in Morocco.' in _Folk-Lore_, xvi. 27-47.]
[Footnote 201: Grimm, _Teutonic Mythology_, ii. 623.]
Closely connected with the primitive conception of sin, is that of a
curse. In fact, the injurious energy attributed to a sinful act, is in
many cases obviously due to the curse of a god. The curse is looked
upon as a baneful substance, as a miasma which injures or destroys
anybody to whom it cleaves. The curse of Moses was said to lie on
mount Ebal, ready to descend with punishments whenever there was an
occasion for it.[202] The Arabs, when being cursed, sometimes lay
themselves down on the ground so that the curse, instead of hitting
them, may fly over their bodies.[203] According to Teutonic notions,
curses alight, settle, cling, they take flight, and turn home as birds
to their nests.[204] It is the vulgar opinion in Ireland "that a curse
once uttered must alight on something: it will float in the air seven
years, and may descend any moment on the party it was aimed at; if his
guardian angel but forsake him, it takes forthwith the shape of some
misfortune, sickness or temptation, and strikes his devoted
head."[205] We shall later on see that curses are communicated through
material media. In some parts of Morocco, if a man is not powerful
enough to avenge an infringement on his marriage-bed, he leaves seven
tufts of hair on his head and goes to another tribe to ask for help.
This is _l-[(]âr_, a conditional curse, which is first seated in the
tufts, and {58} from there transferred to those whom he invokes.
Similarly, a person under the vow of blood-revenge lets his hair grow
until he has fulfilled his vow. The oath clings to his hair, and will
fall upon his head if he violates it.[206]
[Footnote 202: _Deuteronomy_, xi. 29.]
[Footnote 203: Goldziher, _Abhandlungen zur arabischen Philologie_, i.
29. Wellhausen, _Reste arabischen Heidentums_, p. 139, n. 4.]
[Footnote 204: Grimm, _op. cit._ iv. 1690.]
[Footnote 205: _Ibid._ iii. 1227. Wood-Martin, _Traces of the Elder
Faiths of Ireland_ ii, 57 _sq._]
[Footnote 206: The same practice prevailed among the ancient Arabs
(Wellhausen, _op. cit._ p. 122), and some other cases are recorded by
Dr. Frazer (_op. cit._ i. 370 _sq._). I cannot accept Wellhausen's
explanation (_op. cit._ p. 124) that the hair is allowed to grow for
the purpose of being sacrificed when the vow is fulfilled.]
Generally, a curse follows the course which is indicated by the
curser. But it does not do so in every case, and it has a tendency to
spread. In ancient India[207] and among the Arabs[208] and
Hebrews,[209] there was a belief that a curse, especially if it was
undeserved, might fall back on the head of him who uttered it. The
same belief prevailed, or still prevails, among the Irish;[210] so,
also, according to an English proverb, "curses, like chickens, come
home to roost." According to Plato, the curse of a father or mother
taints everything with which it comes in contact. Any one who is found
guilty of assaulting a parent, shall be for ever banished from the
city into the country, and shall abstain from the temples; and "if any
freeman eat or drink, or have any other sort of intercourse with him,
or only meeting him have voluntarily touched him, he shall not enter
into any temple, nor into the agora, nor into the city, until he is
purified; for he should consider that he has become tainted by a
curse."[211] Plutarch asks whether Jupiter's priest was forbidden to
swear for the reason that "the peril of perjury would reach in common
to the whole commonwealth, if a wicked, godless, and forsworn person
should have the charge and superintendence of the prayers, vows, and
sacrifices made on behalf of the city."[212] The Romans believed that
certain horrid imprecations had such power, that not only the object
of them never escaped their influence, but that the person who used
them also was sure {59} to be unhappy.[213] Among the Arinzes, an oath
is reckoned a terrible thing:--"They do not suffer a person, who has
been under the necessity of expurgating himself in so dreadful a
manner, to remain among them: he is sent into exile."[214] According
to Bedouin notions, a solemn oath should only be taken at a certain
distance from the camp, "because the magical nature of the oath might
prove pernicious to the general body of Arabs, were it to take place
in their vicinity."[215] "To take an oath of any sort," says
Burckhardt, "is always a matter of great concern among the Bedouins.
It seems as if they attached to an oath consequences of a supernatural
kind. . . . A Bedouin, even in defence of his own right, will seldom
be persuaded to take a solemn oath before a kadhy, or before the tomb
of a sheikh or saint, as they are sometimes required to do; and would
rather forfeit a small sum than expose himself to the dreaded
consequences of an oath."[216] Exactly the same holds good for the
Moors. The conditional self-curse is supposed in some degree to
pollute the swearer even though the condition referred to in the oath
be only imaginary, in other words, though he do not perjure himself.
This, I think, is the reason why, among the Berbers in the South of
Morocco, persons who have been wrongly accused of a crime, sometimes
entirely undress themselves in the sanctuary where they are going to
swear. They believe that, if they do so, the saint will punish the
accuser; and I conclude that at the bottom of this belief there is a
vague idea that the absence of all clothes will prevent the oath from
clinging to themselves. They say that it is bad not only to swear, but
even to be present when an oath is taken by somebody else. And at
Demnat, in the Great Atlas, I was told that when a person has made
oath at a shrine, he avoids going back to his house the same way as he
came, since otherwise, at least if he {60} has sworn false, his family
as well as himself would have to suffer.
[Footnote 207: _Atharva-Veda_, ii. 7. 5.]
[Footnote 208: Goldziher, _Abhandlungen_, i. 38 _sq._]
[Footnote 209: _Ecclesiasticus_, xxi. 27.]
[Footnote 210: Wood-Martin, _op. cit._ ii. 57 _sq._]
[Footnote 211: Plato, _Leges_, ix. 881.]
[Footnote 212: Plutarch, _Questiones Romanae_, 44.]
[Footnote 213: _Idem_, _Vita Cassi_, 16.]
[Footnote 214: Georgi, _op. cit._ iii. 54 _sq._]
[Footnote 215: Burckhardt, _Bedouins and Wahábys_, p. 73.]
[Footnote 216: _Ibid._ p. 165.]
If a curse is infectious, it is naturally liable to contaminate those
who derive their origin from the infected individual. The house of
Glaucus was utterly extirpated from Sparta, in accordance with the
words of the oracle, "There is a nameless son of the Oath-god who has
neither hands nor feet; he pursues swiftly, until, having seized, he
destroys the whole race, and all the house."[217] So, too, the Erinyes
visited the sins of the fathers even on the children and
grandchildren;[218] and the Erinyes were originally only
personifications of curses.[219] It is said in the Ecclesiasticus:--"A
man that useth much swearing shall be filled with iniquity, and the
plague shall never depart from his house. . . . If he swear in vain,
he shall not be innocent, but his house shall be full of
calamities."[220] Casalis remarks of the Basutos, that "the dreadful
consequences that the curse of Noah has had for Ham and his
descendants appear quite natural to these people."[221] The Dharkâr
and Majhwâr in Mirzapur, believe that a person who forswears himself
will lose his property and his children;[222] but as we do not know
the contents of the oath, it is possible that the destruction of the
latter is not ascribed to mere contagion, but is expressly imprecated
on them by the swearer.[223] Among the Rejangs of Sumatra, {61} "any
accident that happens to a man, who has been known to take a false
oath, or to his children or grandchildren, is carefully recorded in
memory, and attributed to this sole cause."[224] Among the Karens the
following story is told:--"Anciently there was a man who had ten
children, and he cursed one of his brethren, who had done him no
injury; but the curse did the man no harm, and he did not die. Then
the curse returned to the man who sent it, and all his ten children
died."[225] The Moors are fond of cursing each other's father or
mother, or grandfather, or grandfather's father, such a curse being
understood to involve their descendants as well. The Rev. R. Taylor
says of the Maoris, "To bid you go and cook your father would be a
great curse, but to tell a person to go and cook his great-grandfather
would be far worse, because it included every individual who has
sprung from him."[226]
[Footnote 217: Herodotus, vi. 86. _Cf._ Hesiod, _Opera et dies_,
282 _sqq._]
[Footnote 218: Aeschylus, _Eumenides_, 934 _sqq._]
[Footnote 219: Aeschylus (_Eumenides_, 416 _sq._) expressly designates
the Erinyes by the title of "curses" ([Greek: a)rai\]), and Pausanias
derives the name Erinys from an Arcadian word signifying a fit of
anger. _Cf._ von Lasaulx, 'Der fluch bei Griechen und Römern,' in
_Verzeichnis der Vorlesungen an der Julius-Maximilians-Universitaet zu
Würzburg im Sommer-Semester_ 1843, p. 8; Müller, _Dissertations on the
Eumenides of Aeschylus_, p. 155 _sqq._; Rohde, 'Paralipomena,' in
_Rheinisches Museum für Philologie_, 1895, p. 16 _sq._]
[Footnote 220: _Ecclesiasticus_, xxiii. 11. _Cf._ _ibid._ xli. 5
_sqq._; _Wisdom of Solomon_, iii. 12 _sq._, xii. 11.]
[Footnote 221: Casalis, _Basutos_, p. 305.]
[Footnote 222: Crooke, _Tribes and Castes of the North-Western
Provinces and Oudh_, ii. 287; iii. 444. _Cf._ _ibid._ i. 132.]
[Footnote 223: Among these tribes it is usual to swear by "putting a
bamboo on the head," or "touching a broad-sword, touching the feet of
a Brâhman, holding a cow's tail, touching Ganges water." But among
many of the other tribes described by Mr. Crooke, persons swear on the
heads of their children (_ibid._ i. 11, 130, 172; ii. 96, 138, 339,
357; iii. 40, 113, 251, 262; iv. 35), or with a son or grandson in the
arms (_ibid._ ii. 428), and in such cases the death of the child would
naturally be expected to follow perjury as a direct result of it.
Among the Kol, the usual form of an oath is, "May my children die if I
lie" (_ibid._ iii. 313).]
[Footnote 224: Marsden, _History of Sumatra_, p. 240.]
[Footnote 225: Mason, in _Jour. Asiatic Soc. Bengal_,
xxxvii. pt. ii. 137.]
[Footnote 226: Taylor, _Te Ika a Maui_, p. 208.]
Thus, from the conception that sins and curses are contagious it
follows that an innocent person may have to suffer for the sin of
another. His suffering does not necessarily relieve the sinner from
punishment; sin, like an infectious disease, may spread without
vacating the seat of infection. But, as we have seen, it may also be
transferred, and sin-transference involves vicarious suffering. At the
same time, this kind of vicarious suffering must not be confounded
with vicarious expiatory sacrifice. As a general rule, the scapegoat
is driven or cast away, not killed. The exceptions to this rule seem
to be due to two different causes. On the one hand, the scapegoat may
be chased to death, or perhaps be pushed over a precipice,[227] for
the sake of ridding the community as {62} effectively as possible of
the evils loaded on the victim. Thus the Bhotiyás of Juhár take a dog,
make him drunk, "and having fed him with sweetmeats, lead him round
the village and let him loose. They then chase and kill him with
sticks and stones, and believe that by so doing no disease or
misfortune will visit the village during the year."[228] On the other
hand, the transference of evil may be combined with a sacrifice. But
of such a combination only a few instances are recorded, and most of
them are ambiguous. Considering further that in these cases, or at
least in the best known of them, the act of transference takes place
_after_ the victim has been killed, it seems to me extremely probable
that we have here to do with a fusion of two distinct rites into one,
and that the victim is not offered up as a sacrifice in its capacity
of a scapegoat, but, once sacrificed, has been made use of as a
conductor for all the evils with which the people are beset.
[Footnote 227: According to the Mishna, the Hebrew scapegoat was not
allowed to go free in the wilderness, but was killed by being pushed
over a precipice (Robertson Smith, _Religion of the Semites_, p. 418).
See also the ambiguous passage in Servius, _In Virgilii Aeneidos_,
iii. 57.]
[Footnote 228: Atkinson, 'Notes on the History of Religion in the
Himálaya of the N.W. Provinces,' in _Jour. Asiatic Soc. Bengal_, liii.
pt. i. 62.]
In his list of scapegoats, Dr. Frazer refers to a case of human
sacrifice witnessed by the Rev. J. C. Taylor at Onitsha, on the
Niger.[229] A young woman was drawn, with her face to the earth, from
the king's house to the river. As the people drew her along, they
cried, "Wickedness! Wickedness!" so as to notify to the passers-by to
screen themselves from witnessing the dismal scene. The sacrifice was
to take away the iniquities of the land. The body was dragged along in
a merciless manner "as if the weight of all their wickedness were thus
carried away"; and it was finally drowned in the river. Our informant
also heard that there was a man killed, as a sacrifice for the sins of
the king. "Thus two human beings were offered as sacrifices, to
propitiate their heathen deities, thinking that they would thus atone
for the individual sins of those who had broken God's laws during the
past year. . . . Those who had fallen into gross sins during the past
year--such as incendiarisms, thefts, fornications, adulteries,
witchcrafts, incests, slanders, &c.--were expected to pay in
twenty-eight _ngugus_, or _£_2 0_s._ 7½_d._, as a fine; and this money
was taken into the interior, to purchase two sickly persons, to be
{63} offered as a sacrifice for all these abominable crimes--one for
the land, and one for the river."[230] As will be seen in a following
chapter, human sacrifices to rivers are very common in the Niger
country. In the cases mentioned by the English missionary, the idea of
vicarious expiation is obvious. But I find no evidence of actual
sin-transference.
[Footnote 229: Frazer, _op. cit._ iii. 109 _sq._]
[Footnote 230: Crowther and Taylor, _Gospel on the Banks of the
Niger_, p. 344 _sq._]
Dr. Frazer further mentions a custom which, according to Strabo,
prevailed among the Albanians of the Eastern Caucasus.[231] In the
temple of the Moon they kept a number of sacred slaves, of whom many
were inspired and prophesied. When one of these men exhibited more
than usual symptoms of inspiration or insanity, the high priest had
him bound with a sacred chain and maintained him in luxury for a year.
At the end of the year he was anointed with unguents and led forth to
be sacrificed. A man thrust a sacred spear into his side, piercing his
heart. From the manner in which the victim fell, omens were drawn as
to the welfare of the commonwealth. Then the body was carried to a
certain spot where all the people stood upon it as a purificatory
ceremony.[232] Dr. Frazer maintains that "the last circumstance
clearly indicates that the sins of the people were transferred to the
victim, just as the Jewish priest transferred the sins of the people
to the scapegoat by laying his hand on the animal's head."[233] So it
may be, although, in my opinion, the purificatory ceremony described
by Strabo also allows of another interpretation. The victim was
evidently held to be saturated with magic energy; this is commonly the
case with men, or animals, or even inanimate things, that are offered
in sacrifice, and in the present instance the man was regarded as holy
already, long before he was slain. To stand on the corpse, then, might
have been regarded as purifying in consequence of the benign virtue
inherent in it, just as, according to Muhammedan notions, contact with
a saint cures disease, not by transferring it to the saint, but by
annihilating it or expelling it from the body of the patient. But
whether the ceremony in question involved the idea of sin-transference
or not, there is no indication that the sacrifice of the slave was of
an expiatory character. The same may be said both of the Egyptian
sacrifice of a bull, mentioned by Herodotus, and of the white dog
sacrifice performed by the Iroquois. The Egyptians first invoked the
god and slew the bull. They then cut off his head and flayed the body.
Next {64} they took the head, and heaped imprecations on it, praying
that, if any evil was impending either over those who sacrificed or
over the land of Egypt, it might be made to fall upon that head. And
finally, they either sold the head to Greek traders or threw it into
the river[234]--which shows that the real scapegoat, the head, was not
regarded as a sacrifice to the god. Among the Iroquois, also, the
victims were slain before the sins of the people were transferred to
them. According to Hale's and Morgan's accounts of this rite, which
have reference to different tribes of the Iroquois, no mention of
sin-transference is made in the hymn which accompanied the
sacrifice.[235] Only blessings were invoked. This was the beginning of
the chant:--"Now we are about to offer this victim adorned for the
sacrifice, in hope that the act will be pleasing and acceptable to the
All-Ruler, and that he will so adorn his children, the red men, with
his blessings, when they appear before him."[236] Mr. Morgan even
denies that the burning of the dog had the slightest connection with
the sins of the people, and states that "in the religious system of
the Iroquois, there is no recognition of the doctrine of atonement for
sin, or of the absolution or forgiveness of sins."[237]
[Footnote 231: Frazer, _op. cit._ iii. 112 _sq._]
[Footnote 232: Strabo, xi. 4. 7.]
[Footnote 233: Frazer, _op. cit._ iii. 113.]
[Footnote 234: Herodotus, ii. 39.]
[Footnote 235: Hale, in _American Antiquarian_, vii. 10 _sqq._ Morgan,
_League of the Iroquois_, p. 217 _sq._]
[Footnote 236: Hale, _loc. cit._ p. 10.]
[Footnote 237: Morgan, _op. cit._ p. 216.]
I think we can see the reason why, in some cases, a sacrificial victim
is used as scapegoat. The transference of sins or evils is not looked
upon as a mere "natural" process, it can hardly be accomplished
without the aid of mysterious, magic energy. Among the Berbers of Ait
Zel[t.]n, in Southern Morocco, sick people used to visit a
miracle-working wild olive-tree, growing in the immediate vicinity of
the supposed grave of Sîdi Butlîla. They there relieve themselves of
their complaints by tying a woollen string to one of its branches; in
case of headache the patient previously winds the string three times
round the top of his head, whilst, in case of fever, he spits on the
string, and, when tying it to the tree, says, "I left my fever in
thee, O wild olive-tree." He believes that he may thus transfer his
disease to this tree because there is _baraka_, "benign virtue," in
it; he would not expect to be cured {65} by tying the string to any
ordinary tree. This illustrates a principle of probably world-wide
application. In Morocco, and, I presume, in other countries where
disease-transference is believed in, rags tied to a tree are a sure
indication that the tree is regarded as holy. Similarly I venture to
believe that the transference of sins and evils to a scapegoat is
generally supposed to require magic aid of some kind or other. Among
the Hebrews, it took place on the Day of Atonement only, and the act
was performed by the high-priest.[238] Among the Iroquois, it was by
"a kind of magic" that the sins of the people were worked into the
white dogs;[239] and that the animals themselves were held to be
charged with supernatural energy, appears from the fact that,
according to one account, the ashes of the pyre on which one of them
was burnt were "gathered up, carried through the village, and
sprinkled at the door of every house."[240] Considering, then, that
sacrificial victims, owing to their close contact with the deities to
whom they are offered, are held more or less sacred, the idea of
employing them as scapegoats is certainly near at hand. But this does
not make the sacrifice expiatory. In fact, I know of no instance of an
expiatory sacrifice being connected with a ceremony of sin-transference.
Hence the materialistic conception of sin hardly helps to explain the
belief that the sins of a person may be atoned by another person being
offered as a sacrifice to the offended god.
[Footnote 238: _Leviticus_, xvi. 21.]
[Footnote 239: Seaver, _op. cit._ p. 160.]
[Footnote 240: Beauchamp, _loc. cit._ p. 239.]
A sacrifice is expiatory if its object is to avert the supposed anger
or indignation of a superhuman being from those on whose behalf it is
offered. In various cases the offended god is thought to be appeased
only by the death of a man. But it is not always necessary that the
victim should be the actual offender. The death of a substitute may
expiate his guilt. The expiatory sacrifice may be vicarious.
We shall see, in a subsequent chapter, that, as a general {66} rule,
human victims are sacrificed for the purpose of saving the lives of
the sacrificers: before the beginning of a battle or during a siege,
previously to a dangerous sea-expedition, during epidemics, famines,
or on other similar occasions, when murderous designs are attributed
to some superhuman being on whose will the lives of men are supposed
to depend. But these sacrifices are not always expiatory in nature. A
god may desire to cause the death of men not only because he is
offended, but because he delights in human flesh, or because he wants
human attendants, or--no one knows exactly why. It is impossible to
find out in each particular case whether the sacrifice is meant to be
an expiation or not; it is not certain that the sacrificers know it
themselves. Yet in many instances there can be no doubt that its
object is to serve as a vicarious atonement.
In Eastern Central Africa, "if a freeman were to set fire to the
grass or reeds beside a lake, and cause a great conflagration close to
the chosen abode of the deity, he is liable to be offered up to the
god that is thus annoyed," but if he be the owner of many slaves he
can easily redeem himself by offering one of them in his place.[241]
The Ojibways, it is said, were once visited with an epidemic, which
they regarded as a divine punishment sent them on account of their
wickedness; and when all other efforts failed, "it was decided that
the most beautiful girl of the tribe should enter a canoe, push into
the channel just above the Sault, and throw away her paddle."[242] In
B[oe]otia, a drunken man having killed a priest of Dionysus Aegobolus,
and a pestilence having broken out immediately after, the calamity was
regarded as a judgment on the people for the sacrilege, and the oracle
of Delphi ordered them to expiate it by sacrificing to the god a
blooming boy.[243] In his work on the Jews, Philo of Byblus states
that "it was the custom among the ancients in cases of great dangers,
that the rulers of a city or a nation, in order to avert universal
destruction, should give the dearest of their children to be killed as
a ransom offered to avenging demons."[244] The idea that sins could be
expiated by the death of one who {67} had not deserved it, was
familiar to the Hebrews. It was said that "the death of the righteous
makes atonement."[245] The passage in Isaiah liii. 12 was interpreted
of Moses, who "poured out his soul unto death[246] and was numbered
with the transgressors (the generation that died in the wilderness)
and bare the sin of many "that he might atone for the sin of the
golden calf.[247] Ezekiel suffered "that he might wipe out the
transgressions of Israel."[248] And of the Maccabaean martyrs it is
said, "Having become as it were a vicarious expiation for the sins of
the nation, and through the blood of those godly men and their atoning
death, divine providence saved Israel which had before been evil
entreated."[249] In these cases, of course, there was no sacrifice in
the proper sense of the term, but they obviously illustrate the same
characteristic of the divine mind. In fact, the death of Christ, by
which he atoned and obliterated the sins of all ages, was conceived as
a sacrifice, or spoken of in sacrificial figures.[250]
[Footnote 241: Macdonald, _Africana_, i. 96 _sq._]
[Footnote 242: Dorman, _Origin of Primitive Superstitions_, p. 208.]
[Footnote 243: Pausanias, ix. 8. 2.]
[Footnote 244: Eusebius, _Praeparatio Evangelica_, i. 10. 40 (Migne,
_Patrologia_, Ser. Gr. xxi. 85).]
[Footnote 245: Moore, in Cheyne and Black, _Encyclopaedia Biblica_,
iv. 4226.]
[Footnote 246: _Exodus_, xxxii. 32.]
[Footnote 247: _S[=o][t.][=a]h_, 14 A, quoted by Moore, _loc. cit._
col. 4226.]
[Footnote 248: _Sanhedrin_, 39 A, quoted _ibid._ col. 4226.]
[Footnote 249: _4 Maccabaeans_, xvii. 22, quoted _ibid._ col. 4232.]
[Footnote 250: See Moore, _loc. cit._ col. 4229 _sqq._]
It is said that, according to early ideas, "it did not essentially
concern divine justice that the punishment of faults committed should
fall precisely on the guilty; what did concern it was that it should
fall on some one, that it should have its accomplishment."[251] Men,
we are told, could not fail to discern that a transgression produces
suffering as its consequence, and, seeing this, they "associate
suffering with the expiation of sin, and, in atoning for their
transgressions, they mark their contrition by the suffering which they
inflict vicariously on the victim. They argue thus: 'I have broken a
law of God. God exacts pain as a consequence of such a breach. I will
therefore slay this lamb, and its sufferings shall make the atonement
requisite.'"[252] But, so far as I can see, this interpretation of the
idea of vicarious expiation is not supported by facts. The victim
whose suffering or death is calculated to appease the wrathful god is
not anybody {68} at random, whosoever he may be. He is a
representative of the community which has incurred the anger of the
god, and is accepted as a substitute on the principle of social
solidarity. So, also, according to the Western Church, Christ
discharged the punishment due to the sins of mankind and propitiated
the justice of his Father, in his capacity of a man, as a
representative of the human race; whereas in the East, where it was
maintained that the _deity_ suffered (though he suffered through the
human nature which he had made his own), the idea of substitution
could hardly take root, since, as Harnack remarks, "the dying
_God_-man really represented no one."[253] The Greek Church regarded
the death of Christ as a ransom for mankind paid to the devil, and
this doctrine was also accepted by the most important of the Western
Fathers, although it flatly contradicted their own theory of
atonement.[254] There can be no doubt that expiatory sacrifices are
frequently offered as ransoms, in other words, that the god or demon
is supposed to be appeased, not by the suffering of the victim, but by
the gift. Among men it often occurs that the offended party is induced
by some material compensation to desist from avenging the injury--in
many societies such placability is even prescribed by custom,--and
something similar is naturally believed to be the case with gods. From
this point of view, of course, it is not necessary that the victim
should be a person who is connected with the offender by ties of
social solidarity, although he may still be regarded as in a way a
substitute. He may be an alien or a slave; or animals or inanimate
things may be offered to expiate the sins of men. Among the Dacotahs,
"for the expiation of sins or crimes a sacrifice is made of some kind
of an animal."[255] Of the Melanesian sacrifices, says Dr. Codrington,
"some are propitiatory, substituting an animal for the person who has
offended."[256] The Shánárs of Tinnevelly offer up a {69} goat, a
sheep, or a fowl, in order "to appease the angry demon, and induce him
to remove the evil he has inflicted, or abstain from the infliction he
may meditate."[257] It would be almost absurd to suppose that in
similar cases the suffering or death of the animal is looked upon in
the light of a vicarious _punishment_. Of the Hebrew sin-offering,
Professor Kuenen aptly remarks:--[258]"According to the Israelite's
notion, Yahveh in his clemency permits the soul of the animal
sacrificed to take the place of that of the sacrificer. No transfer of
guilt to the animal sacrificed takes place: the blood of the latter is
clean and remains so, as is evident from the very fact that this blood
is put upon the altar; it is a token of mercy on Yahveh's part that he
accepts it. . . . Nor can it be asserted that the animal sacrificed
undergoes the punishment in the place of the transgressor: this is
said nowhere, and therefore, in any case, gives another, more sharply
defined idea than that which the Israelite must have formed for
himself; moreover, it is irreconcilable with the rule that the
indigent may bring the tenth part of an ephah of fine flour as a
sin-offering."[259] It should also be noticed that a purifying effect
was ascribed to contact with the victim's blood: the high priest
should put or sprinkle some blood upon the altar "and cleanse it, and
hallow it from the uncleanness of the children of Israel."[260]
[Footnote 251: Réville, _Prolegomena of the History of Religions_,
p. 135.]
[Footnote 252: Baring-Gould, _Origin and Development of Religious
Belief_, i. 387 _sq._]
[Footnote 253: Harnack, _op. cit._ iii. 312 _sqq._]
[Footnote 254: _Ibid._ iii. 307, 315 n. 2.]
[Footnote 255: Schoolcraft, _Indian Tribes of the United States_,
ii. 196.]
[Footnote 256: Codrington, _Melanesians_, p. 127.]
[Footnote 257: Percival, _Land of the Veda_, p. 309 _sq._ _Cf._
Caldwell, _Tinnevelly Shánárs_, p. 37.]
[Footnote 258: Kuenen, _Religion of Israel_, ii. 266 _sq._]
[Footnote 259: _Leviticus_, v. 11 _sqq._]
[Footnote 260: _Ibid._ xvi. 18 _sq._]
To sum up:--The fact that punishments for offences are frequently
inflicted, or are supposed to be inflicted, by men or gods upon
individuals who have not committed those offences, is explicable from
circumstances which in no way clash with our thesis that moral
indignation is, in its essence, directed towards the assumed cause of
inflicted pain. In many cases the victim, in accordance with the
doctrine of collective responsibility, is punished because he is
considered to be involved in the guilt--even when he is really
innocent--or because he is regarded as a fair {70} representative of
an offending community. In other cases, he is supposed to be polluted
by a sin or a curse, owing to the contagious nature of sins and
curses. The principle of social solidarity also accounts for the
efficacy ascribed to vicarious expiatory sacrifices; but in many
instances expiatory sacrifices only have the character of a ransom or
bribe.
And whilst thus our thesis as to the true direction of moral
indignation is not in the least invalidated by facts, apparently, but
only apparently, contradictory, it is, on the other hand, strongly
supported by the protest which the moral consciousness, when
sufficiently guided by discrimination and sympathy, enters against the
infliction of penal suffering upon the guiltless. Such a protest is
heard from various quarters, both with reference to human justice and
with reference to the resentment of gods.
Confucius taught that the vices of a father should not discredit a
virtuous son.[261] Plato lays down the rule that "the disgrace and
punishment of the father is not to be visited on the children"; on the
contrary, he says, if the children of a criminal who has been punished
capitally avoid the wrongs of their father, they shall have glory, and
honourable mention shall be made of them, "as having nobly and
manfully escaped out of evil into good."[262] According to Roman law,
"crimen vel poena paterna nullam maculam filio infligere potest."[263]
"Nothing," says Seneca, "is more unjust than that any one should
inherit the quarrels of his father."[264] The Deuteronomist enjoins,
"The fathers shall not be put to death for the children, neither shall
the children be put to death for the fathers: every man shall be put
to death for his own {71} sin."[265] Lawgivers have been anxious to
restrict the blood-feud to the actual culprit. The Koran forbids the
avenger of blood to kill any other person than the manslayer
himself.[266] In England, according to a law of Edmund, the feud was
not to be prosecuted against the kindred of the slayer, unless they
made his misdeed their own by harbouring him.[267] So, also, in
Sweden, in the thirteenth century, the blood feud was limited by law
to the guilty individual;[268] and we meet with a similar restriction
in Slavonic law-books.[269]
[Footnote 261: _Lun Yü_, vi. 4. _Cf._ _Thâi-Shang_ 4.]
[Footnote 262: Plato, _Leges_, ix. 854 _sqq._ Plato makes an exception
for those whose fathers, grandfathers, and great-grandfathers have
successively undergone the penalty of death: "Such persons the city
shall send away with all their possessions to the city and country of
their ancestors, retaining only and wholly their appointed lot"
(_ibid._ ix. 856). But this enactment had no doubt a purely
utilitarian foundation, the offspring of a thoroughly wicked family
being considered a danger to the city.]
[Footnote 263: _Digesta_, xlviii. 19. 26. _Cf._ _ibid._ xlviii. 19. 20.]
[Footnote 264: Seneca, _De ira_, ii. 34. _Cf._ Cicero, _De officiis_,
i. 25.]
[Footnote 265: _Deuteronomy_, xxiv. 16. _Cf._ _2 Kings_ xiv. 6.]
[Footnote 266: _Koran_, xvii. 35.]
[Footnote 267: _Laws of Edmund_, ii. 1.]
[Footnote 268: Nordström, _Bidrag till den svenska
samhälls-författningens historia_, ii. 103, 334, 335, 399. Wilda,
_op. cit._ p. 174.]
[Footnote 269: Kovalewsky, _Coutume contemporaine_, p. 248. In
Montenegro it was enjoined by Daniel I. (Post, _Anfänge des Staats- und
Rechtsleben_, p. 181).]
Passing to the vengeance of gods: according to the Atharva-Veda, Agni,
who forgives sin committed through folly and averts Varuna's wrath,
also frees from the consequence of a sin committed by a man's father
or mother.[270] Theognis asks, "How, O king of immortals, is it just
that whoso is aloof from unrighteous deeds, holding no transgression,
nor sinful oath, but being righteous, should suffer what is not
just?"[271] According to Bion, the deity, in punishing the children of
the wicked for their fathers' crimes, is more ridiculous than a doctor
administering a potion to a son or grandson for a father's or
grandfather's disease.[272] The early Greek notion of an inherited
curse was modified into the belief that the curse works through
generations because the descendants each commit new acts of
guilt.[273] The persons who prohibited the sons of such as had been
proscribed by Sylla, from standing candidates for their fathers'
honours, and from being admitted into the senate, were supposed to
have been punished by the gods for this injustice:--"In process of
time," says Dionysius of Halicarnassus, "a blameless punishment, the
avenger of their crimes, pursued {72} them, by which they themselves
were brought down from the greatest height of glory, to the lowest
degree of obscurity; and none, even, of their race are now left, but
women."[274] Among the Hebrews, Jeremiah and Ezekiel broke with the
old notion of divine vengeance. The law of individual responsibility,
which had already previously been laid down as a principle of human
justice, was to be extended to the sphere of religion.[275] "Every one
shall die for his own iniquity: every man that eateth the sour grape,
his teeth shall be set on edge."[276] "The soul that sinneth, it shall
die. The son shall not bear the iniquity of the father, neither shall
the father bear the iniquity of the son: the righteousness of the
righteous shall be upon him, and the wickedness of the wicked shall be
upon him."[277]
[Footnote 270: _Atharva-Veda_, v. 30. 4. _Cf._ Macdonell, _Vedic
Mythology_, p. 98.]
[Footnote 271: Theognis, 743 _sqq._]
[Footnote 272: Plutarch, _De sera numinis vindicta_ 19. _Cf._ _ibid._
12; Cicero, _De natura Deorum_, iii. 38.]
[Footnote 273: Farnell, _op. cit._ i. 77. Maine, _Ancient Law_, p. 127.]
[Footnote 274: Dionysius of Halicarnassus, _op. cit._ viii. 80.]
[Footnote 275: _Cf._ Montefiore, _op. cit._ p. 220; Kuenen, _op. cit._
ii. 35 _sq._]
[Footnote 276: _Jeremiah_, xxxi. 30.]
[Footnote 277: _Ezekiel_, xviii. 20. For Talmudic views, see Deutsch,
_Literary Remains_, p. 52.]
CHAPTER III
THE NATURE OF THE MORAL EMOTIONS (_continued_)
IT was said in the last chapter that moral disapproval is a
sub-species of resentment, and that resentment is, in its essence, an
aggressive attitude of mind towards an assumed cause of pain. It was
shown that, in the course of mental evolution, the true direction of
the hostile reaction involved in moral disapproval has become more
apparent. We shall now see that, at the same time, its aggressive
character has become more disguised.
This is evidenced by the changed opinion about anger and revenge which
we meet at the higher stages of moral development. Retaliation is
condemned, and forgiveness of injuries is laid down as a
duty.
The rule that a person should be forbearing and kind to his enemy has
no place in early ethics.
"Let those that speak evil of us perish. Let the enemy be clubbed,
swept away, utterly destroyed, piled in heaps. Let their teeth be
broken. May they fall headlong into a pit. Let us live, and let our
enemies perish." Such were the requests which generally concluded the
prayers of the Fijians.[1] A savage would find nothing objectionable
in them. On the contrary, he regards revenge as a duty,[2] and
forgiveness of enemies as a sign of weakness, or cowardice, or want of
honour.[3] Nor {74} is this opinion restricted to the savage world. In
the Old Testament the spirit of vindictiveness pervades both the men
and their god. The last thing with which David on his death-bed
charged Solomon was to destroy an enemy whom he himself had spared.[4]
Sirach counts among the nine causes of a man's happiness to see the
fall of his enemy.[5] The enemies of Yahveh can expect no mercy from
him, but utter destruction is their lot.[6] To do good to a friend and
to do harm to an enemy was a maxim of the ancient Scandinavians.[7] It
was taken for a matter of course by popular opinion in Greece[8] and
Rome. According to Aristotle, "it belongs to the courageous man never
to be worsted"; to take revenge on a foe rather than to be reconciled
is just, and therefore honourable.[9] Cicero defines a good man as a
person "who serves whom he can, and injures none except when provoked
by injury."[10] Except in domestic life and in the case of friends,
Professor Seeley observes, "people not only did not forgive their
enemies, but did not wish to do so, nor think better of themselves for
having done so. That man considered himself fortunate who on his
deathbed could say, in reviewing his past life, that no one had done
more good to his friends or more mischief to his enemies. This was the
celebrated felicity of Sulla; this the crown of Xenophon's panegyric
on Cyrus the Younger."[11]
[Footnote 1: Fison, quoted by Codrington, _Melanesians_, p. 147, n. 1.]
[Footnote 2: See _infra_, on Blood-revenge.]
[Footnote 3: _Cf._ Domenech, _Great Deserts of North America_, ii. 97,
338, 438 (Dacotahs); Boas, _first General Report on the Indians of
British Columbia_, p. 38; Baker, _Albert N'yanza_ i. 240 _sq._
(Latukas).]
[Footnote 4: _1 Kings_, ii. 8 _sq._]
[Footnote 5: _Ecclesiasticus_, xxv. 7.]
[Footnote 6: _Cf._ Montefiore, Hibbert Lectures, p. 40.]
[Footnote 7: Maurer, _Bekehrung des Norwegischen Stammes_, ii. 154 _sq._]
[Footnote 8: Maury, _Histoire des religions de la Grèce antique_, i.
383. Schmidt, _Ethik der alten Griechen_, ii. 309 _sqq._]
[Footnote 9: Aristotle, _Rhetorica_, i. 9. 24. _Cf._ Aeschylus,
_Choeophori_, 309 _sqq._; Plato, _Meno_, p. 71; Xenophon,
_Memorabilia_, ii. 6. 35.]
[Footnote 10: Cicero, _De officiis_, iii. 19. iii. 19. _Cf._ _ibid._
ii. 14; but _cf._ also _ibid._ i. 25, where it is said that nothing is
more worthy of a great and a good man than placability and moderation.]
[Footnote 11: Seeley, _Ecce Homo_, p. 273.]
But side by side with the doctrine of resentment, we meet, among
peoples of culture, the doctrine of forgiveness.
"Recompense injury with kindness," says Lao-Tsze.[12] According to
Mencius, "a benevolent man does not lay up anger, nor cherish
resentment against his brother, but only regards him with affection
and love."[13] In the laws of Manu the following rule is laid down for
the twice-born man:--"Against an angry man let him not in return show
anger, let him bless {75} when he is cursed."[14] It is said in the
Buddhistic Dhammapada: "Hatred does not cease by hatred at any time;
hatred ceases by love, this is an old rule . . . . Among men who hate
us we dwell free from hatred. . . . Let a man overcome anger by love,
let him overcome evil by good; let him overcome the greedy by
liberality, the liar by truth."[15] According to one of the Pahlavi
texts, we ought not to indulge in wrathfulness; wrath is one of the
fiends besetting man, and "goodness is little in the mind of a man of
wrath."[16]
[Footnote 12: _Tâo Teh King_, ii. 63. 1. According to _Thâi-Shang_, 4,
a bad man "broods over resentment without ceasing."]
[Footnote 13: Mencius, v. 1. 3. 2.]
[Footnote 14: _Laws of Manu_, vi. 48. _Cf._ _ibid._ viii. 313;
Monier-Williams, _Indian Wisdom_, pp. 444, 446; Muir, _Additional
Moral and Religious Passages, rendered from the Sanskrit_, p. 30.]
[Footnote 15: _Dhammapada_, i. 5; xv. 197; xvii. 223. _Cf._ _J[=a]taka
Tales_, i. 22; Oldenberg, _Buddha_, p. 298.]
[Footnote 16: _Dînâ-î-Maînôg-î Khirad_, ii. 16; xli. 11; xxxix. 26.]
In Leviticus hatred is condemned:--"Thou shalt not hate thy brother
in thine heart. . . . Thou shalt not avenge, nor bear any grudge
against the children of thy people."[17] Sirach, whom I have already
quoted, says in another passage, "Forgive thy neighbour the hurt that
he has done unto thee, so shall thy sins also be forgiven when thou
prayest."[18] According to the Talmud, "whosoever does not persecute
them that persecute him, whosoever takes an offence in silence, he who
does good because of love, he who is cheerful under his sufferings
they are the friends of God, and of them the Scripture says, And they
shall shine forth as does the sun at noon-day."[19] The Koran, whilst
repeating the old rule, "an eye for an eye and a tooth for a
tooth,"[20] at the same time teaches that Paradise is "for those who
repress their rage, and those who pardon men; God loves the kind."[21]
Muhammedan tradition puts the following words in the mouth of the
Prophet:--"Say not, if people do good to us, we will do good to them,
and if people oppress us, we will oppress them: but resolve that if
people do good to you, you will do good to them, and if they oppress
you, oppress them not again."[22] Professor Goldziher emphasises
Muhammed's opposition to the traditional rule of the Arabs that an
enemy is a proper object of hatred;[23] and Syed Ameer Ali has
collected various passages from the writings of Muhammedan scholars,
which prove that, {76} in spite of what has often been said to the
contrary, forgiveness of injuries is by no means foreign to the spirit
of Islam.[24] Thus the author of the Kashshâf prescribes, "Seek again
him who drives you away; give to him who takes away from you; pardon
him who injures you: for God loveth that you should cast into the
depth of your souls the roots of His perfections."[25] That "the
sandal-tree perfumes the axe that fells it," is a saying in everyday
use among the Muhammedans of India.[26] And Lane often heard Egyptians
forgivingly say, on receiving a blow from an equal, "God bless thee,"
"God requite thee good," "Beat me again."[27]
[Footnote 17: _Leviticus_, xix. 17 _sq._ _Cf._ _Exodus_, xxiii. 4.]
[Footnote 18: _Ecclesiasticus_, xxviii. 2. _Cf._ _ibid._ x, 6;
_Proverbs_, xxv. 21.]
[Footnote 19: Deutsch, _Literary Remains_, p. 58. _Cf._ Katz, _Der
wahre Talmudjude_, p. 11, _sq._]
[Footnote 20: _Koran_, ii. 190: "Whoso transgresses against you,
transgress against him like as he transgressed against you."]
[Footnote 21: _Ibid._ iii. 125. _Cf._ _ibid._ xxiii. 98; xxiv. 22;
xli. 34.]
[Footnote 22: Lane-Poole, _Speeches and Table-Talk of Mohammad_, p. 147.]
[Footnote 23: Goldziher, _Mohammedanische Studien_, i. 15 _sq._]
[Footnote 24: Ameer Ali, _Ethics of Islam_, p. 26 _sqq._]
[Footnote 25: _Ibid._ p. 7. _Idem_, _Life and Teachings of Mohammed_,
p. 280.]
[Footnote 26: Poole, _Studies in Mohammedanism_, p. 226.]
[Footnote 27: Lane, _Modern Egyptians_, p. 314 _sq._]
The principles of forgiveness had also advocates in Greece and
Rome. In one of the Platonic dialogues, Socrates says, "We ought not
to retaliate or render evil for evil to any one, whatever evil we may
have suffered from him"; though he wisely adds that "this opinion has
never been held, and never will be held, by any considerable number of
persons."[28] The Stoics strongly condemned anger as unnatural and
unreasonable. "Mankind is born for mutual assistance, anger for mutual
ruin."[29] "Anger is a crime of the mind; . . . it often is even more
criminal than the faults with which it is angry."[30] He is the best
and purest "who pardons others as if he sinned himself daily, but
avoids sinning as if he never pardoned."[31] "If any one is angry with
you, meet his anger by returning benefits for it."[32] "The cynic
loves those who beat him."[33]
[Footnote 28: Plato, _Crito_, p. 49.]
[Footnote 29: Seneca, _De ira_, i. 5.]
[Footnote 30: _Ibid._ i. 16; ii. 6.]
[Footnote 31: Pliny, _Epistolæ_, ix. 22 (viii. 22).]
[Footnote 32: Seneca, _op. cit._ ii. 34.]
[Footnote 33: Epictetus, _Dissertationes_, iii. 22, 54.]
Forgiveness of enemies is thus by no means an exclusively Christian
tenet, although it has never before or after been inculcated with the
same emphasis as it was by Jesus. "Love your enemies; bless them that
curse you, do good to them that hate you, and pray for them which
despitefully use you, and persecute you."[34] When St. Peter asked,
"Lord, how oft shall my brother sin against me, and I forgive him?
till seven times?" Jesus replied, "I say not unto thee, Until seven
times: but, Until seventy times seven,"[35]--that is, as often as he
repeats the offence. It would seem that Jesus by these sentences
expressly forbade men to avenge themselves, or even {77} to feel
resentment on their own behalf; and so also he was understood by St.
Paul.[36]
[Footnote 34: _St. Matthew_, v. 44. _Cf._ _ibid._ v. 39 _sq._; vi. 14
_sq._; _St. Luke_, vi. 27 _sqq._; xvii. 3 _sq._; _St. Mark_,
xi. 25 _sq._]
[Footnote 35: _St. Matthew_, xviii. 21 _sq._]
[Footnote 36: _Romans_, xii. 19 _sqq._; _1 Thessalonians_, v. 14
_sq._; _Colossians_, iii. 12 _sq._]
The rule of retaliation and the rule of forgiveness, however, are not
so radically opposed to each other as they appear to be. What the
latter condemns is, in reality, not every kind of resentment, but
non-moral resentment; not impartial indignation, but personal hatred.
It prohibits revenge, but not punishment. According to the Laws of
Manu, crime was so indispensably to be followed by punishment, that if
the king pardoned a thief or a perpetrator of violence, instead of
slaying or striking him, the guilt fell on the king;[37] and if
Lao-tsze was an enemy to the infliction of any kind of suffering, it
was because he held that in a well-governed State the necessity for
punishment could not arise, as crime would cease to exist.[38] The
Chinese book, _Merits and Errors Scrutinised_, which regards it as a
merit to refrain from avenging an injury, adds that, "if a man should
omit to avenge the injuries of his parents, it would become an
error."[39] Jesus was certainly not free from righteous indignation.
It does not appear that he ever forgave the legalists who sinned
against the kingdom of God, and he told his disciples that, if a
brother who had trespassed against his brother neglected to hear the
church, he should be looked upon as a heathen and a publican.[40]
Christian writers have laid much stress upon the circumstance that
Jesus enjoined men to forgive their own enemies, but not to abstain
from resenting injuries done to others. According to Thomas Aquinas,
"the good bear with the wicked to this extent, that, so far as it is
proper to do so, they patiently endure at their hands the injuries
done to themselves; but they do not bear with them to the extent of
enduring the injuries done to God and their neighbours. For Chrysostom
says, 'For it {78} is praiseworthy to be patient under one's own
wrongs, but the height of impiety to dissemble injuries done to
God.'"[41] Practically, at least, Christianity has not altered the
validity of the Aristotelian rule that anger admits not only of an
excess, but of a defect, and that we ought to feel angry at certain
things.[42] As Plutarch says, we even think those worthy of hatred who
are not vexed at hateful individuals; and we can sympathise with the
man who, hearing somebody praise Charillus, king of Sparta, for his
gentleness, replied, "How can Charillus be good, who is not harsh even
to the bad?"[43] Moreover, the belief in a transcendental retributive
justice, in an ultimate punishment of badness, which we meet with in
Taouism,[44] Brahmanism, Buddhism,[45] Christianity,[46] side by side
with the doctrine of forgiveness, is based upon the demand that wrong
should be resented.
[Footnote 37: _Laws of Manu_, viii. 316, 346 _sq._ _Cf._ _Gautama_,
xii. 45; _Âpastamba_, i. 9. 25. 5.]
[Footnote 38: Douglas, _Confucianism and Taouism_, p. 204.]
[Footnote 39: 'Merits and Errors scrutinised,' in _Indo-Chinese
Gleaner_, iii. 153.]
[Footnote 40: _St. Matthew_, xviii. 15 _sqq._]
[Footnote 41: Thomas Aquinas, _Summa Theologia_, ii.-ii. 108. 1. 2.
_Cf._ Lactantius, _De ira Dei_, 17.]
[Footnote 42: Aristotle, _Ethica Nicomachea_, ii. 7. 10; iii. 1. 24;
iv. 5. 3 _sqq._]
[Footnote 43: Plutarch, _De invidia et odio_, 5.]
[Footnote 44: Douglas, _op. cit._ p. 257.]
[Footnote 45: _Dhammapada_, i. 15, 17; x. 137 _sqq._]
[Footnote 46: _Cf._ _Romans_, xii. 19: "Vengeance is mine; I will
repay, saith the Lord."]
It is easy to see why enlightened and sympathetic minds disapprove of
resentment and retaliation springing from personal motives. Such
resentment is apt to be partial. It is too often directed against
persons whom impartial reflection finds to be no proper objects of
indignation, and still more frequently it is unduly excessive. As
Butler ays, "we are in such a peculiar situation, with respect to
injuries done to ourselves, that we can scarce any more see them as
they really are, than our eye can see itself."[47] "As bodies seem
greater in a mist, so do little matters in a rage"; hence the old rule
that we ought not to punish whilst angry.[48] The more the moral
consciousness is influenced by sympathy, the more severely it condemns
any retributive infliction of pain which it regards as undeserved; and
it seems to be in the first place with a {79} view to preventing such
injustice that teachers of morality have enjoined upon men to love
their enemies. It would, indeed, be absurd to blame a person for
expressing moral indignation at an act simply because he himself
happens to be the offended party; practically we allow him to be even
more indignant than the impartial spectator would be, whereas
excessive placability often meets with censure. Like Aristotle, we
maintain that "to submit to insult, or to overlook an insult offered
to our friends, shows a slavish spirit"[49]; and we agree with the
Confucian maxims, that injuries should be recompensed, not with
kindness, but with justice, and that nobody but he who deserves it
should be an object of hatred.[50]
[Footnote 47: Butler, 'Sermon IX.--Upon Forgiveness of Injuries,' in
_Analogy of Religion, &c._, p. 469.]
[Footnote 48: Plutarch, _De cohibenda ira_, 11. Montaigne, _Essais_,
ii. 31 (_Oeuvres_, p. 396).]
[Footnote 49: Aristotle, _Ethica Nicomachea_, 5. 6.]
[Footnote 50: _Lun Yü_ xiv. 36. 3; xvii. 9. 1, 5; xvii. 24. 1.
Douglas, _Confucianism and Taouism_, p. 9. _Cf._ _Chung Yung_, x. 3;
xxxi. 1; xxxiii. 4.]
At the same time, the injunctions of moralists that unjust resentment
should be suppressed, are far from introducing any absolutely new
element into the estimation of conduct. They only represent a higher
stage of a process of moral development the early phases of which are
found already in primitive societies. Even the savage who enjoins
revenge as a duty, regards revenge under certain circumstances as
wrong.[51] The restraining rule of like for like, as we shall see, is
an instance of this.
[Footnote 51: Concerning the Dacotahs, Prescott observes, "There are
cases where the Indians say retaliation is wrong, and they try to
prevent it" (Schoolcraft, _Indian Tribes_, ii. 197).]
The aggressive character of moral disapproval has become more
disguised, not only by the more scrutinising attitude towards the
resentment and retaliation which distinguishes the moral consciousness
of a higher type, but by the different way in which the aggressiveness
displays itself. The infliction of suffering merely for the sake of
retribution is condemned, and the rule is laid down that we should
hate, not the sinner, but only the sin.
Punishment, which expresses more or less faithfully the moral
indignation of the society which inflicts it, is externally similar to
an act of revenge; it causes, or is intended {80} to cause, pain in
return for inflicted pain. For ages it was looked upon as a matter of
course that if a person had committed an offence he should have to
suffer for it. This is still the notion of the multitude, as also of a
host of theorisers, who, by calling punishment an expiation, or a
reparation, or a restoration of the disturbed equilibrium of justice,
only endeavour to give a philosophical sanction to a very simple fact,
the true nature of which they too often have failed to grasp. The
infliction of pain, however, is not an act which the moral
consciousness regards with indifference, even in the case of a
criminal; and to many enlightened minds with keen sympathy for human
suffering, it has appeared both unreasonable and cruel that the State
should wilfully torment him to no purpose. But whilst retributive
punishment has been condemned, punishment itself has been defended; it
is only looked upon in a different light, not as an end by itself, but
as a means of attaining an end. It is to be inflicted, not because
wrong has been done, but in order that wrong be not done. Its object
is held to be, either to deter from crime, or to reform the criminal,
or by means of elimination or seclusion, to make it physically
impossible for him to commit fresh crimes.
These views were expressed already in Greek and Roman
antiquity.[52] According to Plato, a reasonable man punishes for the
sake of deterring from wickedness, or with a view to correcting the
offender.[53] Aristotle looks upon punishment as a moral medicine.[54]
Seneca maintains that the law, in punishing wrong, aims at three ends:
"either that it may correct him whom it punishes, or that his
punishment may render other men better, or that, by bad men being put
out of the way, the rest may live without fear."[55] In modern times
all these theories have had, and still have, their numerous adherents.
According to Hugo Grotius, "men are so bound together by their common
{81} nature, that they ought not to do each other harm, except for the
sake of some good to be attained"; hence "man is not rightly punished
by man merely for the sake of punishing"; advantage alone makes
punishment right--"either the advantage of the offender, or of him who
suffers by the offence, or of persons in general."[56] For a long time
the view taken by Hobbes, that "the aym of Punishment is not a
revenge, but terrour,"[57] remained the leading doctrine on the
subject, among philosophers, as well as legislators. It was shared by
Montesquieu,[58] Beccaria,[59] and filangieri,[60] by Anselm von
Feuerbach[61] and Schopenhauer,[62] and, in the main, by Bentham.[63]
During the nineteenth century the principle of determent was largely
superseded by the principle of reformation; whilst certain
contemporary criminologists--like some previous ones[64]--are of
opinion that punishment should aim to repress crime by an "absolute"
or "relative elimination" of the criminal, that is, in extreme cases
by killing him, but generally by incarcerating him in a criminal
lunatic asylum, or by banishing him for ever or for a certain period,
or by interdicting him from a particular neighbourhood.[65]
[Footnote 52: _Cf._ Laistner, _Das Recht in der Strafe_, p. 9 _sqq._;
Thonissen, _Le droit pénal de la république Athénienne_, p. 418 _sqq._]
[Footnote 53: Plato, _Protagoras_, p. 324. _Idem_, _Politicus_, p.
293. _Idem_, _Gorgias_, p. 479. _Idem_, _Leges_, ix. 854; xi. 934;
xii. 944.]
[Footnote 54: Aristotle, _Ethica Nicomachea_, ii. 3. 4.]
[Footnote 55: Seneca, _De clementia_, i. 22. _Cf._ _Idem_, _De ira_,
i. 19.]
[Footnote 56: Grotius, _De iure belli et pacis_, ii. 20. 4 _sqq._]
[Footnote 57: Hobbes, _Leviathan_, ii. 28, p. 243.]
[Footnote 58: Montesquieu, _Lettres Persanes_, 81.]
[Footnote 59: Beccaria, _Dei delitti e delle pene_, _passim_.]
[Footnote 60: filangieri, _La scienza della legislazione_, iii. 2. 27,
vol. iv. 13 _sq._]
[Footnote 61: von Feuerbach-Mittermaier, _Lehrbuch des gemeinen in
Deutschland gültigen Peinlichen Rechts_, p. 38 _sqq._]
[Footnote 62: Schopenhauer, _Die Welt als Wille und Vorstellung_,
ii. 683 _sqq._]
[Footnote 63: Bentham, _Principles of Morals and Legislation_, p. 170
_sq._ n. 1: ". . . Example is the most important end of all." _Idem_,
_Rationale of Punishment_, p. 19 _sqq._]
[Footnote 64: See von Feuerbach-Mittermaier, _op. cit._ p. 40.]
[Footnote 65: Garofalo, _Criminologie_, p. 251 _sqq._ Ferri,
_Criminal Sociology_, p. 204 _sqq._]
The advocates of these various theories are unanimous in condemning
retributive punishment as wrong. Without the grounds of social
defence, says M. Guyau, "the punishment would be as blameworthy as the
crime, and . . . the lawgivers and the judges, by deliberately
condemning the guilty to punishment, would become their fellows."[66]
For my own part I believe, on the contrary, that those who would
venture to carry out all the consequences to which the theories of
social defence or of reformation might lead, would be regarded even as
more criminal than those they punished, not only by the {82}
opponents, but probably by the very supporters of the theories in
question. A brief statement of some of those consequences will, I
hope, suffice to prove that punishment can hardly be guided
exclusively by utilitarian considerations, but requires the sanction
of the retributive emotion of moral disapproval.
[Footnote 66: Guyau, _Esquisse d'une morale sans obligation ni
sanction_, p. 148.]
The principle of repressing crime by eliminating the criminal may at
once be put aside, because it has no reference to the _punishment_ of
criminals, although it contains a suggestion--and a most excellent one
indeed--as to the proper mode of treating them. Their exclusion from
the company of their fellow-men--not to speak of their elimination by
death--certainly entails suffering, but, according to the principle
with which we are dealing, this suffering is not _intended_. On the
other hand, punishment, in the ordinary sense of the word, always
involves an express intention to inflict pain, whatever be the object
for which pain is inflicted. We do not punish an ill-natured dog when
we tie him up so as to prevent him from doing harm, nor do we punish a
lunatic by confining him in a madhouse.
According to the principle of determent, the infliction of suffering
in consequence of an offence is justified as a means of increasing
public safety. The offender is sacrificed for the common weal. But why
the offender only? It is quite probable that a more effective way of
deterring from crime would be to punish his children as well; and if
the notion of justice derived all its import from the result achieved
by the punishment, there would be nothing unjust in doing so. The only
objection which, from this point of view, might ever be raised against
the practice of visiting the wrongs of the fathers upon the children,
is that it is needlessly severe; the innocence of the children could
count for nothing. Nor do I see why the law should not allow our own
judges now and then to follow the example of their Egyptian colleague
who in an intricate lawsuit caused a person avowedly innocent to be
bastinadoed with the hope that whoever was the real {83} culprit might
be induced to confess out of compassion.[67] Moreover, if the object
of punishment is merely preventive, the heaviest punishment should be
threatened where the strongest motive is needed to restrain.
Consequently, an injury committed under great temptation, or in a
passion, should be punished with particular severity; whereas a crime
like parricide might be treated with more indulgence than other kinds
of homicide, owing to the restraining influence of filial affection.
Could the moral consciousness approve of this?
[Footnote 67: Burckhardt, _Arabic Proverbs_, p. 103 _sq._]
Again, if punishment were to be regulated by the principle of
reforming the criminal, the result would in some cases be very
astonishing. There is no more incorrigible set of offenders than
habitual vagrants and drunkards, whereas experience has shown that the
most easily reformed of all offenders is often some person who has
committed a serious crime. According to the reformation theory, the
latter should soon be set free, whilst the petty offender might have
to be shut up for all his life. Nay more, if the criminal proves
absolutely incorrigible, and not the slightest hope of his reformation
is left, there would no longer be any reason for punishing him at
all.[68] The reformationist may also be asked why he does not try some
more humane method of improving people's characters than by the
infliction of suffering.
[Footnote 68: _Cf._ Morrison, _Crime and its Causes_, p. 203;
Durkheim, _Division du travail social_, p. 94.]
It may seem strange that theories which are open to such objections
should have been able to attract so many intelligent partisans. These
theories must at least possess a certain plausibility. If punishment
on the one hand springs from moral indignation, and on the other hand
is frequently interpreted as a means either of deterring from crime or
of reforming the criminal, there must obviously be some connection
between these ends and the retributive aim of moral resentment. There
must be certain facts which, to some extent, fill up the gap between
the theory of retribution and the other theories of punishment.
{84} The doctrine of determent regards punishment as a means of
preventing crime. A crime always involves the infliction of pain; and
the one thing which men try to prevent for its own sake is pain. The
one thing which arouses resentment is likewise pain. There must
consequently be a general coincidence between the acts which people
resent and the acts which the law would punish if it were framed on
the principle of determent. But the resemblance between the desire to
deter and resentment is greater still. Resentment is not only aroused
by pain, but is a hostile attitude towards its cause, and its
intrinsic object is to remove this cause, that is, to prevent pain. An
act of moral resentment is therefore apt to resemble a punishment
inflicted with a view to deterring from crime, provided that the
punishment is directed against the cause of crime--the criminal
himself--and is not unduly severe.
The doctrine of reformation aims at the removal of a criminal
disposition of mind by improving the offender. Moral resentment
likewise aims at the removal of a volitional cause of pain, by
bringing about repentance in the offender. That repentance ought to be
followed by forgiveness, partial or total, is a widely recognised
moral claim.
According to the Chinese Penal Code, whoever, having committed an
injury which can be repaired by restitution or compensation,
surrenders himself voluntarily, and acknowledges his guilt to a
magistrate, before it is otherwise discovered, shall be freely
pardoned, though all claims upon his property shall be duly
liquidated.[69] In Madagascar, according to a law made in 1828, "all
the fines shall be reduced one-half, according to the nature of the
fines, if the persons guilty accuse themselves."[70] According to
Zoroastrianism, one element of atonement consists in repentance, as
manifested by avowal of the guilt and by the recital of a formula, the
_Patet_.[71] It is said in the Laws of Manu:--"In proportion as a man
who has done wrong, himself {85} confesses it, even so far he is freed
from guilt, as a snake from its slough. . . . He who has committed a
sin and has repented, is freed from that sin, but he is purified only
by the resolution of ceasing to sin and thinking 'I will do so no
more.'"[72] According to the Rig-Veda, Varuna inflicts terrible
punishments on the hardened criminal, but is merciful to him who
repents; to Varuna the cry of anguish from remorse ascends, and before
him the sinner comes to discharge himself of the burden of his guilt
by confession.[73] So, also, Zeus pardons the repentant.[74] The main
doctrine of Judaism on the subject of atonement is comprised in the
single word Repentance. No teachers, says Mr. Montefiore, "exalted the
place and power of repentance more than the Rabbis. There was no sin
for which in their eyes a true repentance could not obtain forgiveness
from God."[75] According to the Talmud, a space of only two fingers'
breadth lies between Hell and Heaven: the sinner has only to repent
sincerely, and the gates to everlasting bliss will spring open.[76]
Jesus commanded his disciples to forgive injuries if followed by
repentance:--"If thy brother trespass against thee, rebuke him; and if
he repent, forgive him. And if he trespass against thee seven times in
a day, and seven times in a day turn again to thee, saying, I repent;
thou shalt forgive him."[77]
[Footnote 69: _Ta Tsing Leu Lee_, sec. xxv. p. 27 _sq._]
[Footnote 70: Ellis, _History of Madagascar_, i. 386.]
[Footnote 71: Darmesteter, in _Sacred Books of the East_,
iv. p. lxxxvi.]
[Footnote 72: _Laws of Manu_, xi. 229, 231. _Cf._ _ibid._ xi. 228, 230.]
[Footnote 73: _Rig-Veda_, i. 25. 1 _sq._; ii. 28. 5 _sqq._; v. 85. 7
_sq._; vii. 87. 7, 88. 6 _sq._, 89. 1 _sqq._ Barth, _Religions of
India_, p. 17.]
[Footnote 74: _Ilias_, ix. 502 _sqq._]
[Footnote 75: Montefiore, _op. cit._ pp. 524, 335 n.]
[Footnote 76: Deutsch, _Literary Remains_, p. 53. _Cf._ _ibid._ p. 56;
Katz, _Der wahre Talmudjude_, p. 87 _sq._; Kohler, 'Atonement,' in
_Jewish Encyclopedia_, ii. 279; Moore, 'Sacrifice' in Cheyne and
Black, _Encyclopædia Biblica_, iv. 4224 _sq._]
[Footnote 77: _St. Luke_, xvii. 3 _sq._]
But repentance not only blunts the edge of moral indignation and
recommends the offender to the mercy of men and gods: it is the sole
ground on which pardon can be given by a scrupulous judge. When
sufficiently guided by deliberation and left to itself, without being
unduly checked by other emotions, the feeling of moral resentment is
apt to last as long as its cause remains unaltered, that is until the
will of the offender has ceased to be offensive; and it ceases to be
offensive only when he acknowledges his guilt and repents. It is true
that the mere performance of certain ceremonies is frequently supposed
to relieve the performer of his sins,[78] and that the {86} same end
is thought to be attained by pleasing God in some way or other, by
sacrifice, or alms-giving, or the like. Men even lay claim to divine
forgiveness as a right belonging to them in virtue of some meritorious
deeds of theirs, according to the doctrine of _opera supererogativa_--a
doctrine which, in substance, is not restricted to Roman Catholicism,
but is found, in a more or less developed form, in Judaism,[79]
Muhammedanism,[80] Brahmanism,[81] and degenerated Buddhism.[82] But
all such ideas are objectionable to the moral consciousness of a
higher type. They are based on the crude notion that sin is a material
substance which may be removed by material means; or on the belief
that an offender may compound with the deity for sinning against him,
in the same way as he pacifies his injured neighbour, by bribery or
flattery; or on the assumptions that by a good or meritorious deed a
man has done more than his duty, that a good deed stands in the same
relation to a bad deed as a claim to a debt, that the claim is made on
the same person to whom the debt is due, namely, God--even though it
beinclihedinclihed only by his mercy--and that the debt consequently
may be compensated by the claim in the same way as the payment of a
certain sum may compensate for a loss inflicted. This doctrine
attaches badness and goodness to external acts rather than to mental
facts. Reparation implies compensation for a loss. The loss may be
compensated by the bestowal of a corresponding advantage; but no
reparation can be given for badness. Badness can only be forgiven, and
moral forgiveness can be granted only on condition that the agent's
mind has undergone a radical alteration for the better, that the
badness of the will has given way to repentance.[83] Hence the
Reformation {87} proscribed offerings for the redemption of sins,
together with the trade in indulgences; and we meet with an analogous
movement in other comparatively advanced forms of religion. In
reformed Brahmanism, repentance is declared to be the only means of
redeeming trespasses.[84] The idea expressed in the Psalms, that God
delights not in burnt offerings, but that the sacrifices of God are a
broken and a contrite heart,[85] became the prevailing opinion among
the Rabbis, most of whom regarded repentance as the _conditio sine quâ
non_ of expiation and the forgiveness of sins.[86] Let us also
remember that he who commanded his followers to forgive a brother for
his sin, at the same time pronounced the qualification: "if he
repent."[87]
[Footnote 78: _Supra_, p. 53 _sqq._ Heriot, _Travels through the
Canadas_, p. 378 (ancient Mexicans). Adair, _History of the American
Indians_, p. 150. Krasheninnikoff, _History of Kamchatka_, p. 178.
Williams and Calvert, _Fiji_, p. 24.]
[Footnote 79: Montefiore, _op. cit._ p. 525 _sqq._]
[Footnote 80: _Koran_, xi. 116. Sell, _Faith of Islám_, p. 220 _sq._
According to Muhammadanism, however, it is only "little sins" that are
forgiven if some good actions are done, whereas "great sins" can only
be forgiven after due repentance (_ibid._ p. 214).]
[Footnote 81: Wheeler, _History of India_, ii. 475.]
[Footnote 82: _Indo-Chinese Gleaner_, iii. 150, 161, 164. Davis,
_China_, ii. 48.]
[Footnote 83: This point was certainly not overlooked by the Catholic
moralists, but even the most ardent apology cannot explain away the
idea of reparation in the Catholic doctrine of the justification of
man (_cf._ Manzoni, _Osservazioni sulla Morale Cattolica_, p. 100).
Penance consists of contrition, confession, and satisfaction, and
contrition itself is chiefly "a willingness to compensate" (_Catechism
of the Council of Trent_, ii. 5. 22).]
[Footnote 84: Goblet d'Alviella, _Hibbert Lectures on the Origin and
Growth of the Conception of God_, p. 263.]
[Footnote 85: _Psalms_, li. 16 _sq._]
[Footnote 86: Moore, _loc. cit._ col. 4225.]
[Footnote 87: _Cf._ Martineau, _Types of Ethical Theory_, ii. 203.]
That moral indignation is appeased by repentance, and that repentance
is the only proper ground for forgiveness, is thus due, not to the
specifically moral character of such indignation, but to its being a
form of resentment. This is confirmed by the fact that an angry and
revengeful man is apt to be in a similar way influenced by the sincere
apologies of the offender. As Aristotle said, men are placable in
regard to those who acknowledge and repent their guilt: "there is
proof of this in the case of chastising servants; for we chastise more
violently those who contradict us, and deny their guilt; but towards
such as acknowledge themselves to be justly punished, we cease from
our wrath."[88] To take an instance from the savage world. The
Caroline Islander, according to Mr. Christian, "is inclined to be
revengeful, and will bide his time patiently until his opportunity
comes. Yet he is not implacable, and counts reconciliation a noble and
a princely thing. There is a form of etiquette to be observed on {88}
these occasions--a present (_katom_) is made, an apology offered--a
piece of sugar-cane accepted by the aggrieved party--honour is
satisfied and the matter ends."[89] In the case of revenge, external
satisfaction or material compensation is often allowed to take the
place of genuine repentance, and the humiliation of the adversary may
be sufficient to quiet the angry passion. But the revenge felt by a
reflecting mind is not so readily satisfied. It wants to remove the
cause which aroused it. The object which resentment is chiefly intent
upon, Adam Smith observes, "is not so much to make our enemy feel pain
in his turn, as to make him conscious that he feels it upon account of
his past conduct, to make him repent of that conduct, and to make him
sensible, that the person whom he injured did not deserve to be
treated in that manner."[90] The delight of revenge, says Bacon,
"seemeth to be not so much in doing the hurt, as in making the party
repent."[91]
[Footnote 88: Aristotle, _Rhetorica_, ii. 3. 5.]
[Footnote 89: Christian, _Caroline Islands_, p. 72.]
[Footnote 90: Adam Smith, _Theory of Moral Sentiments_, p. 138 _sq._]
[Footnote 91: Bacon, 'Essay IV. Of Revenge,' in _Essays_, p. 45. _Cf._
Montaigne, _Essais_, ii. 27 (_Oeuvres_, p. 384).]
We can now see the origin of the idea that the true end of punishment
is the reformation of the criminal. This idea merely emphasises the
most humane element in resentment, the demand that the offender's will
shall cease to be offensive. The principle of reformation has thus
itself a retributive origin. This explains the fact, otherwise
inexplicable, that the amendment which it has in view is to be
effected by the infliction of pain. It also accounts for the
inconsistent attitude of the reformationist towards incorrigible
offenders, already commented upon. Resentment gives way to forgiveness
only in the case of repentance, not in the case of incorrigibility.
Hence, not even the reformationist regards incorrigibility as a
legitimate ground for exempting a person from punishment, although
this flatly contradicts his theory about the true aim of all
punishment.
Thus the theories both of determent and of reformation are ultimately
offspring of the same emotion that first {89} induced men to inflict
punishment on their fellow-creatures. It escaped the advocates of
these theories that they themselves were under the influence of the
very principle they fought against, because they failed to grasp its
true import. Rightly understood, resentment is preventive in its
nature, and, when sufficiently deliberate, regards the infliction of
suffering as a means rather than as an end. It not only gives rise to
punishment, but readily suggests, as a proper end of punishment,
either determent or amendment or both. But, first of all, moral
resentment wants to raise a protest against wrong. And the immediate
aim of punishment has always been to give expression to the righteous
indignation of the society which inflicts it.
Now it may be thought that men have no right to give vent to their
moral resentment in a way which hurts their neighbours unless some
benefit may be expected from it. In the case of many other emotions,
we hold that the conative element in the emotion ought not to be
allowed to develop into a distinct volition or act; and it would seem
that a similar view might be taken with reference to the
aggressiveness inherent in moral disapproval. It is a notion of this
kind that lies at the bottom of the utilitarian theories of
punishment. They are protests against purposeless infliction of pain,
against crude ideas of retributive justice, against theories hardly in
advance of the low feelings of the popular mind. Therefore, they mark
a stage of higher refinement in the evolution of the moral
consciousness; and if the principles of determent and reformation are
open to objections which will be shared by almost everyone, that is
due to other circumstances than their demand that punishment should
serve a useful end. As we have seen, they ignore the fact that a
punishment, in order to be recognised as just, must not transgress the
limits set down by moral disapproval, that it must not be inflicted on
innocent persons, that it must be proportioned to the guilt, that
offenders who are amenable to discipline must not be treated more
severely {90} than incorrigible criminals. These theories also seem to
exaggerate the deterring or reforming influence which punishments
exercise upon criminals,[92] whilst, in another respect, they take too
narrow a view of its social usefulness. Whether its voice inspire fear
or not, whether it wake up a sleeping conscience or not, punishment,
at all events, tells people in plain terms what, in the opinion of the
society, they ought not to do. It gives the multitude a severe lesson
in public morality; and it is difficult to see how quite the same
effect could be attained by any other method. Retaliation is such a
spontaneous expression of indignation, that people would hardly
realise the offensiveness of an act which evokes no signs of
resentment. Of course, punishment, in the legal sense of the term, is
only one form--the most concrete form--of public retaliation; it is,
indeed, probable that public opinion exercises a greater influence on
men than punishment would do without its aid.[93] But punishment, in
combination with public opinion, has no doubt to some extent an
educating, and not merely a deterring, influence upon the members of a
society. As Sir James Stephen observes, "the sentence of the law is to
the moral sentiment of the public in relation to any offence what a
seal is to hot wax. It converts into a permanent final judgment what
might otherwise be a transient sentiment."[94] finally, it must not be
overlooked that the infliction of punishment upon the perpetrator of a
grave offence gratifies a strong general desire, and, even though the
pain which always accompanies an unsatisfied desire would by itself
afford no sufficient justification for subjecting the offence to such
intense {91} suffering, other more serious consequences might easily
result from leaving him unpunished. The public indignation might find
a vent in some less regular and less discriminating mode of
retaliation, like lynching; or, on the other hand, by remaining
unsatisfied, the desire might dwindle away from want of nourishment,
and the moral standard suffer a corresponding loss.
[Footnote 92: On the limited efficiency of punishment as a deterrent,
see Ferri, _op. cit._ p. 82 _sq._ On the moral insensibility of the
instinctive and habitual criminal, and absence of remorse, see
Havelock Ellis, _The Criminal_, p. 124 _sqq._]
[Footnote 93: _Cf._ Locke, _Essay concerning Human Understanding_, ii.
28. 12 (_Philosophical Works_, p. 283); Shaftesbury, 'Inquiry
concerning Virtue and Merit,' i. 3. 3, in _Characteristicks_, ii. 64.]
[Footnote 94: Stephen, _History of the Criminal Law of England_, ii.
81. _Cf._ Shaftesbury, _op. cit._ ii. 64: "As to punishments and
rewards, their efficacy is not so much from the fear or expectation
which they raise, as from a natural esteem of virtue, and detestation
of villainy, which is awaken'd and excited by these publick
expressions of the approbation and hatred of mankind in each case."]
However, it is not to be believed that, in practice, the infliction of
punishment is, or ever will be, regulated merely by considerations of
social utility, even within the limits of what is recognised as
legitimate by the moral sentiment. The retributive desire is so
strong, and appears so natural, that we can neither help obeying it,
nor seriously disapprove of its being obeyed. The theory that we have
a right to punish an offender only in so far as, by doing so, we
promote the general happiness, really serves in the main as a
justification for gratifying such a desire, rather than as a
foundation for penal practice. Moreover, this theory refers, and
pretends to refer, only to outward behaviour--to punishment, not to
the emotion from which punishment springs. It condemns the retributive
act, not the retributive desire.
But at the same time the aggressive element in the emotion itself has
undergone a change, which tends to conceal its true nature by partly
leading it into a new channel, or, rather, by narrowing the channel in
which it discharges itself. Resentment is directed against the cause
of the offence by which it was aroused--broadly speaking, the
offender. But when duly reflecting upon the matter, we cannot fail to
admit that the real cause was not the offender as a whole, but his
will. Deliberate and discriminating resentment is therefore apt to
turn against the will rather than against the willer; as we have seen,
it is desirous to inflict pain on the offender chiefly as a means of
removing the cause of pain suffered, _i.e._, the existence of the bad
will. If this is the case with deliberate resentment in general, it
must particularly be the case with moral indignation, which is more
likely to be {92} influenced by sympathy, and hence more discriminate,
than non-moral resentment. This fact gives rise to the moral
commandment that we should hate, not the sinner, but the sin. The
hostile reaction should be focussed on the will of the offender, and
his sensibility should be regarded merely as an instrument through
which the will is worked upon. But there is little hope that such a
demand can ever be strictly enforced. Professor Sidgwick justly
remarks that, though moralists try to distinguish between anger
directed "against the act" and anger directed "against the agent," it
may be fairly doubted whether it is within the capacity of ordinary
human nature to maintain this distinction in practice.[95] The will
which offends, and the sensibility which suffers, cannot seriously be
looked upon as two different entities the one of which should not be
punished for the fault of the other. The person himself is held
responsible for the offence. The hostile reaction turns against his
will because only by acting upon the will can the cause of pain be
removed. But since the remotest ages the aggressive attitude towards
this cause has been connected with an instinctive desire to produce
counter-pain; and, though we may recognise that such a desire, or
rather the volition into which it tends to develop, may be morally
justifiable only if it is intended to remove the cause of pain, we can
hardly help being indulgent to the gratification of a human instinct
which seems to be well nigh ineradicable. It is the instinctive desire
to inflict counter-pain that gives to moral indignation its most
important characteristic. Without it, moral condemnation and the ideas
of right and wrong would never have come into existence. Without it,
we should no more condemn a bad man than a poisonous plant. The reason
why moral judgments are passed on volitional beings, or their acts, is
not merely that they are volitional, but that they are sensitive as
well; and however much we try to concentrate our indignation on the
act, it derives its peculiar flavour from being directed {93} against
a sensitive agent. I have heard persons of a highly sympathetic cast
of mind assert that a wrong act awakens in them only sorrow, not
indignation; but though sorrow be the predominant element in their
state of mind, I believe that, on a close inspection, they would find
there another emotion as well, one in which there is immanent an
element of hostility, however slight. It is true that the intensity of
moral indignation cannot always be measured by the actual desire to
cause pain to the offender; but its intensity seems nevertheless to be
connected with the amount of suffering which the indignant man is
willing to let the offender undergo in consequence of the offence.
Which of us could ever, quite apart from any utilitarian
considerations, feel the same sympathy with a person who suffers on
account of his badness as with one who suffers innocently? It is one
of the most interesting facts related to the moral consciousness of a
higher type, that it in vain condemns the gratification of the very
desire from which it sprang. It is like a man of low extraction, who,
in spite of all acquired refinement, bears his origin stamped on his face.
[Footnote 95: Sidgwick, _Methods of Ethics_, p. 364.]
* * * * *
Whilst resentment is a hostile attitude of mind towards a cause of
pain, retributive kindly emotion is a friendly attitude of mind
towards a cause of pleasure. Just as in the lower forms of anger there
is hardly any definite desire to produce suffering, only a vehement
desire to remove the cause of pain, so in the lower form of
retributive kindly emotion there is hardly any definite desire to
produce pleasure, only a friendly endeavour to retain the cause of the
pleasure experienced. When the emotion contains a definite desire to
give pleasure in return for pleasure received, and at the same time is
felt by the favoured party in his capacity of being himself the object
of the benefit, it is called gratitude. We often find intermingled
with gratitude a feeling of indebtedness; he upon whom a benefit has
been conferred feels himself as a debtor, and regards the benefactor
as his creditor. This feeling has {94} even been represented as
essential to, or as a condition of, gratitude;[96] but it is not
implied in what I here understand by gratitude. It is one thing to be
grateful, and another thing to feel that it is one's duty to be
grateful. A depression of the "self-feeling," a feeling of
humiliation, also frequently accompanies gratitude as a motive for
requiting the benefit; but it is certainly not an element in gratitude
itself.
[Footnote 96: Horwicz, _Psychologische Analysen_, ii. 333: "Ohne
dieses Gefühl des Verbundenseins . . . . kann keine Dankbarkeit
auskommen." _Cf._ Milton, _Paradise Lost_, iv. 52 _sqq._]
Retributive kindly emotion is a much less frequent phenomenon in the
animal kingdom than is the emotion of resentment. In many animal
species not even the germ of it is found, and where it occurs it is
generally restricted within narrow limits. Anybody may provoke an
animal's anger, but only towards certain individuals it is apt to feel
retributive kindliness. The limits for this emotion are marked off by
the conditions under which altruistic sentiments in general tend to
arise--a subject which will be discussed in another connection.
Indeed, social affection is itself essentially retributive. Gregarious
animals take pleasure in each other's company, and with this pleasure
is intimately associated kindly feeling towards its cause, the
companion himself. Social affection presupposes reciprocity; it is not
only a friendly sentiment towards another individual, but towards an
individual who is conceived of as a friend.
The intrinsic object of retributive kindliness being to retain a cause
of pleasure, we may assume that the definite desire to produce
pleasure in return for pleasure received is due to the fact that such
a desire materially promotes the object in question--exactly in the
same way as the definite desire to inflict pain in return for pain
inflicted has become an element in resentment because such a desire
promotes the intrinsic object of resentment, the removal of the cause
of pain. And as natural selection accounts for the origin of
resentment, so it also accounts for the {95} origin of retributive
kindly emotion. Both of these emotions are useful states of mind; by
resentment evils are averted, by retributive kindliness benefits are
secured. That there is such a wide difference in their prevalence is
explicable from the simple facts that gregariousness--which is the
root of social affection, and, largely at least, a condition of the
rise of retributive kindly emotions--is an advantage only to some
species, not to all, and that even gregarious animals have many
enemies, but few friends.
In some cases the friendly reaction in retributive kindliness is
directed towards individuals who have in no way been the cause of the
pleasure which gave rise to the emotion. So intimate is the connection
between the stimulus and the reaction, that he who is made happy often
feels a general desire to make others happy.[97] But such an
indiscriminate reaction is only an offset of the emotion with which we
are here concerned. Moreover, retributive kindly emotion often confers
benefits upon somebody nearly related to the benefactor, if he himself
be out of reach, or in addition to benefits conferred on him. But in
such cases the gratitude towards the benefactor is the real
motive.
[Footnote 97: That a happy man wants to see glad faces around him, is
also due to another cause, which has been pointed out by Dr. Hirn
(_Origins of Art_, p. 83): from their expression he wants to derive
further nourishment and increase for his own feeling.]
That moral approval--by which I understand that emotion of which moral
praise or reward is the outward manifestation--is a kind of
retributive kindly emotion and as such allied to gratitude, will
probably be admitted without much hesitation.[98] Its friendly
character is not, like the hostile character of moral disapproval,
disguised by any apparently contradictory facts. To confer a benefit
upon a person is not generally regarded as wrong, unless, indeed, it
involves an encroachment on somebody's rights or is contrary to the
feeling of justice. And that moral approval sometimes bestows its
favours upon undeserving {96} individuals for the merits of others,
can no more invalidate the fact that it is essentially directed
towards the cause of pleasure, than the occasional infliction of
punishments upon innocent individuals invalidates the fact that moral
disapproval is essentially directed against the cause of pain.
Unmerited rewards are explicable on grounds analogous to those to
which we have traced unmerited punishments.
[Footnote 98: The relationship between gratitude and moral approval
has been recognised by Hartley (_Observations on Man_, i. 520) and
Adam Smith (_Theory of Moral Sentiments_, _passim_).]
The doctrine of family solidarity leads, not only to common
responsibility for crimes, but to common enjoyment of merits.
In Madagascar, exemption from punishment was claimed by the
descendants of persons who had rendered any particular service to the
sovereign or the State, as also by other branches of the family, on
the same plea.[99] According to Chinese ideas, the virtuous conduct of
any individual will result, not only in prosperity to himself, but in
a certain quantity of happiness to his posterity, unless indeed the
personal wickedness of some of the descendants neutralise the benefits
which would otherwise accrue from the virtue of the ancestor;[100]
and, conversely, the Chinese Government confers titles of nobility
upon the dead parents of a distinguished son.[101] The idea that the
dead share in _punya_ or _pâpa_, that is, the merit or demerit of the
living, and that the happiness of a man in the next life depends on
the good works of his descendants, was early familiar to the civilised
natives of India; almost all legal deeds of gift contain the formula
that the gift is made "for the increase of the _punya_ of the donor
and that of his father and mother."[102]
[Footnote 99: Ellis, _History of Madagascar_, 376.]
[Footnote 100: Giles, _Strange Stories from a Chinese Studio_, i. 426,
n. 3; ii. 384, n. 63. Doolittle, _Social Life of the Chinese_, ii. 398.]
[Footnote 101: Giles, _op. cit._ i. 305, n. 6. Wells Williams, _Middle
Kingdom_, i. 422.]
[Footnote 102: Barth, _Religions of India_, p. 52, n. 4.]
But the vicarious efficacy of good deeds is not necessarily restricted
to the members of the same family.
In a hymn of the Rig-Veda we find the idea that the merits or the
pious may benefit their neighbours.[103] According to one of the
Pahlavi texts, persons who are wholly unable to perform good works are
supposed to be entitled to a share of any supererogatory good works
performed by others.[104] The Chinese believe that {97} whole kingdoms
are blessed by benevolent spirits for the virtuous conduct of their
rulers.[105] Yahveh promised not to destroy Sodom for the sake of ten
righteous, provided that so many righteous could be found in the
town.[106] The doctrine of vicarious reward or satisfaction through
good works is, in fact, more prevalent than the doctrine of vicarious
punishment. Jewish theology has a great deal more to say about the
acceptance of the merits of the righteous on behalf of the wicked,
than about atonement through sacrifice.[107] The Muhammedans, who know
nothing of vicarious suffering as a means of expiation, confer merits
upon their dead by reciting chapters of the Koran and almsgiving, and
some of them allow the pilgrimage to Mecca to be done by proxy.[108]
Christian theology itself maintains that salvation depends on the
merit of the passion of Christ; and from early times the merits of
martyrs and saints were believed to benefit other members of the
Church.[109]
[Footnote 103: _Rig-Veda_, vii. 35. 4.]
[Footnote 104: _Dînâ-î-Maînôg-î Khirad_ xv. 3.]
[Footnote 105: de Groot, _Religious System of China_ (vol. iv. book)
ii. 435.]
[Footnote 106: _Genesis_, xviii. 32.]
[Footnote 107: Robertson Smith, _Religion of the Semites_, p. 424, n. 1.]
[Footnote 108: Lane, _Modern Egyptians_, pp. 247, 248, 532. Sell, _op.
cit._ pp. 242, 278, 287, 288, 298. _Cf._ Wallin, _Fórsta Resa från
Cairo till Arabiska öknen_, p. 103.]
[Footnote 109: Harnack, _History of Dogma_, ii. 133, n. 3.]
For the explanation of these and similar facts various circumstances
have to be considered. Good deeds may be so pleasing to a god as to
induce him to forgive the sins of the wicked in accordance with the
rule that anger yields to joy. There is solidarity not only between
members of the same family, but between members of the same social
unit; hence the virtues of individuals may benefit the whole community
to which they belong. The Catholic theologian argues that, since we
are all regenerated unto Christ by being washed in the same baptism,
made partakers of the same sacraments, and, especially, of the same
meat and drink, the body and blood of Christ, we are all members of
the same body. "As, then, the foot does not perform its functions
solely for itself, but also for the benefit of the eyes; and as the
eyes exercise their sight, not for their own, but for the common
benefit of all the members; so should works of satisfaction be deemed
common to all the members of the {98} Church."[110] Moreover, virtues,
like sins, are believed to be in a material way transferable. In Upper
Bavaria, when a dead person is laid out, a cake of flour is placed on
his breast in order to absorb the virtues of the deceased, whereupon
the cake is eaten by the nearest relatives.[111] And we are told that,
in a certain district in the north of England, if a child is brought
to the font at the same time as a body is committed to the ground,
whatever was "good" in the deceased person is supposed to be
transferred to the little child, since God does not allow any
"goodness" to be buried and lost to the world, and such "goodness" is
most likely to enter a little child coming to the sacrament of
Baptism.[112] A blessing, also, no less than a curse, is looked upon
in the light of material energy; goodness is not required for the
acquisition of it, mere contact will do. Blessings are hereditary:--"The
just man walketh in his integrity: his children are blessed after
him."[113]
[Footnote 110: _Catechism of the Council of Trent_, ii. 5. 72.]
[Footnote 111: _Am Urquell_, ii. 101.]
[Footnote 112: Peacock, 'Executed Criminals and Folk-Medicine,' in
_Folk-Lore_, vii. 280.]
[Footnote 113: _Proverbs_, xx. 7.]
It is no doubt more becoming for a god to pardon the sinner on account
of the merits of the virtuous, than to punish the innocent for the
sins of the wicked. It shows that his compassion overcomes his wrath;
and the mercy of the deity is, among all divine attributes, that on
which the higher monotheistic religions lay most stress. Allah said,
"Whoso doth one good act, for him are ten rewards, and I also give
more to whomsoever I will; and whoso doth ill, its retaliation is
equal to it, or else I forgive him."[114] Nevertheless, the moral
consciousness of a higher type can hardly approve that the wicked
should be pardoned for the sake of the virtuous, or that the reward
for an act should be bestowed upon anybody else than the agent. The
doctrine of vicarious merit or recompense is not just; it involves
that badness is unduly ignored; it is based on crude ideas of goodness
and merit. The theory of _opera supererogativa_, as we have seen,
attaches badness {99} and goodness to external acts rather than to
mental facts, and assumes that reparation can be given for badness,
whereas the scrutinising moral judge only forgives badness in case it
is superseded by repentance. If thus a bad act cannot be compensated
by a good one, even though both be performed by one and the same
person, it can still less be compensated by the good act of another
man. From various quarters we hear protests against the notion of
vicarious merit--protests which emphasise the true direction of moral
reward. Ezekiel, who reproved the old idea that the children's teeth
are set on edge because the fathers have eaten sour grapes, also
taught that a wicked son is to reap no benefit from the blessings
bestowed upon a righteous father.[115] "Fear the day," says the Koran,
"wherein no soul shall pay any recompense for another soul."[116] The
Buddhistic Dhammapada contains the following passage, which sums up
our whole argument:--"By oneself the evil is done, by oneself one
suffers; by oneself evil is left undone, by oneself one is purified.
The pure and the impure stand and fall by themselves, no one can
purify another."[117]
[Footnote 114: Lane-Poole, _Speeches and Table-Talk of Mohammad_,
p. 147.]
[Footnote 115: _Ezekiel_, xviii. 5 _sqq._]
[Footnote 116: _Koran_, ii. 44.]
[Footnote 117: _Dhammapada_, xii. 165.]
CHAPTER IV
THE NATURE OF THE MORAL EMOTIONS (_concluded_)
WE have seen that moral disapproval is a form of resentment, and that
moral approval is a form of retributive kindly emotion. It still
remains for us to examine in what respects these emotions differ from
kindred non-moral emotions--disapproval from anger and revenge,
approval from gratitude--in other words, what characterises them as
specifically _moral_ emotions.
It is a common opinion, held by all who regard the intellect as the
source of moral concepts, that moral emotions only arise in
consequence of moral judgments, and that, in each case, the character
of the emotion is determined by the predicate of the judgment. We are
told that, when the intellectual process is completed, when the act in
question is definitely classed under such or such a moral category,
then, and only then, there follows instantaneously a feeling of either
approbation or disapprobation as the case may be.[1] When we hear of a
murder, for instance, we must discern the wrongness of the act before
we can feel moral indignation at it.
[Footnote 1: Fleming, _Manual of Moral Philosophy_, p. 97 _sqq._
Fowler, _Principles of Morals_, ii. 198 _sqq._]
It is true that a moral judgment may be followed by a moral emotion,
that the finding out the tendency of a certain mode of conduct to
evoke indignation or approval is apt to call forth such an emotion, if
there was none before, or otherwise to increase the one existing. It
is, moreover, true that the predicate of a moral judgment, as {101}
well as the generalisation leading up to such a predicate, may give a
specific colouring to the approval or disapproval which it produces,
quite apart from the general characteristics belonging to that emotion
in its capacity of a moral emotion; the concepts of duty and justice,
for instance, no doubt have a peculiar flavour of their own. But for
all this, moral emotions cannot be described as resentment or
retributive kindliness called forth by moral judgments. Such a
definition would be a meaningless play with words. Whatever emotions
may follow moral judgments, such judgments could never have been
pronounced unless there had been moral emotions antecedent to them.
Their predicates, as was pointed out above, are essentially based on
generalisations of tendencies in certain phenomena to arouse moral
emotions; hence the criterion of a moral emotion can in no case depend
upon its proceeding from a moral judgment. But at the same time moral
judgments, being definite expressions of moral emotions, naturally
help us to discover the true nature of these emotions.
The predicate of a moral judgment always involves a notion of
disinterestedness. When pronouncing an act to be good or bad, I mean
that it is so, quite independently of any reference it might have to
my own interests. A moral judgment may certainly have a selfish
motive; but then it, nevertheless, pretends to be disinterested, which
shows that disinterestedness is a characteristic of moral concepts as
such. This is admitted even by the egoistic hedonist, who maintains
that we approve and condemn acts from self-love. According to
Helvetius, it is the love of consideration that a virtuous man takes
to be in him the love of virtue; and yet everybody pretends to love
virtue for its own sake, "this phrase is in every one's mouth and in
no one's heart."[2]
[Footnote 2: Helvetius, _De l'Homme_, i. 263.]
If the moral concepts are essentially generalisations of tendencies in
certain phenomena to call forth moral emotions, and, at the same time,
contain the notion of {102} disinterestedness, we must conclude that
the emotions from which they spring are felt disinterestedly. Of this
fact we find an echo--more or less faithful--in the maxims of various
ethical theorisers, as well as practical moralists. We find it in the
utilitarian demand that, in regard to his own happiness and that of
others, an agent should be "as strictly impartial as a disinterested
and benevolent spectator";[3] in the "rule of righteousness" laid down
by Samuel Clarke, that "We so deal with every man, as in like
circumstances we could reasonably expect he should with us";[4] in
Kant's formula, "Act only on that maxim which thou canst at the same
time will to become a universal law";[5] in Professor Sidgwick's
so-called axiom, "I ought not to prefer my own lesser good to the
greater good of another";[6] in the biblical sayings, "Thou shalt love
thy neighbour as thyself,"[7] and, "Whatsoever ye would that men
should do to you, do ye even so to them."[8] The same fact is
expressed in the Indian Mahabharata, where it is said:--"Let no man do
to another that which would be repugnant to himself; this is the sum
of righteousness; the rest is according to inclination. In refusing,
in bestowing, in regard to pleasure and to pain, to what is agreeable
and disagreeable, a man obtains the proper rule by regarding the case
as like his own."[9] Similar words are ascribed to Confucius.[10] When
Tsze-kung asked if there is any one word which may serve as a rule of
practice for all one's life, the Master answered, "Is not Reciprocity
such a word? What you do not want done to yourself, do not do to {103}
others." And in another utterance Confucius showed that the rule had
for him not only a negative, but a positive form. He said that, in the
way of the superior man, there are four things to none of which he
himself had as yet attained; to serve his father as he would require
his son to serve him, to serve his prince as he would require his
minister to serve him, to serve his elder brother as he would require
his younger brother to serve him, and to set the example in behaving
to a friend as he would require the friend to behave to him.[11]
[Footnote 3: Stuart Mill, _Utilitarianism_, p. 24.]
[Footnote 4: Clarke, _Discourse concerning the Unchangeable
Obligations of Natural Religion_, p. 201.]
[Footnote 5: Kant, _Grundlegung zur Metaphysik der Sitten_, sec. 2
(_Sämmtliche Werke_, iv. 269).]
[Footnote 6: Sidgwick, _Methods of Ethics_, p. 383. However, as we
have seen above, this so-called "axiom" is not a correct
representation of the disinterestedness of moral emotions.]
[Footnote 7: _Leviticus_, xix. 18. _St. Matthew_, xxii. 39.]
[Footnote 8: _St. Matthew_, vii. 12. _Cf._ _St. Luke_, vi. 31.]
[Footnote 9: _Mahabharata_, xiii. 5571 _sq._, in Muir, _Religious and
Moral Sentiments, rendered from Sanskrit Writers_, p. 107. _Cf._
_Panchatantra_, iii. (Benfey's translation, ii. 235).]
[Footnote 10: _Lun Yü_, xv. 23. _Cf._ _ibid._ xii. 2; _Chung Yung_,
xiii. 3.]
[Footnote 11: _Chung Yung_, xiii. 4.]
This "golden rule" is not, as has been sometimes argued, a rule of
retaliation.[12] It does not say, "Do to others what they wish to do
to you"; it says, "Do to others what you wish, or require, them to do
to you." It brings home to us the fact that moral rules are general
rules, which ought to be obeyed irrespectively of any selfish
considerations. If formulated as an injunction that we should treat
our neighbour in the same manner as we consider that he, under exactly
similar circumstances, ought to treat us, it is simply identical with
the sentence, "Do your duty," with emphasis laid on the
disinterestedness which is involved in the very conception of duty. So
far, St. Augustine was right in saying that "Do as thou wouldst be
done by" is a sentence which all nations under heaven are agreed
upon.[13]
[Footnote 12: Letourneau, _L'évolution religieuse dans les diverses
races humaines_, p. 553.]
[Footnote 13: St. Augustine, quoted by Lilly, _Right and Wrong_, p. 106.]
Disinterestedness, however, is not the only characteristic by which
moral indignation and approval are distinguished from other,
non-moral, kinds of resentment or retributive kindly emotion. It is,
indeed, itself a form of a more comprehensive quality which
characterises moral emotions--apparent impartiality. If I pronounce an
act done to a friend or to an enemy to be either good or bad, that
implies that I assume it to be so independently of the fact that the
person to whom the act is done is my friend or my enemy. Conversely,
if I pronounce an {104} act done by a friend or by an enemy to be good
or bad, that implies that I assume the act to be either good or bad
independently of my friendly or hostile feelings towards the agent.
All this means that resentment and retributive kindly emotion are
moral emotions in so far as they are assumed by those who feel them to
be uninfluenced by the particular relationship in which they stand,
both to those who are immediately affected by the acts in question,
and to those who perform those acts. A moral emotion, then, is tested
by an imaginary change of the relationship between him who approves or
disapproves of the mode of conduct by which the emotion was evoked and
the parties immediately concerned, whilst the relationship between the
parties themselves is left unaltered. At the same time it is not
necessary that the moral emotion should be really impartial. It is
sufficient that it is tacitly assumed to be so, nay, even that it is
not knowingly partial. In attributing different rights to different
individuals, or classes of individuals, we are often, in reality,
influenced by the relationship in which we stand to them, by personal
sympathies and antipathies; and yet those rights may be moral rights,
in the strict sense of the term, not mere preferences, namely, if we
assume that any impartial judge would recognise our attribution of
rights as just, or even if we are unaware of its partiality.
Similarly, when the savage censures a homicide committed upon a member
of his own tribe, but praises one committed upon a member of another
tribe, his censure and praise are certainly influenced by his
relations to the victim, or to the agent, or to both. He does not
reason thus: it is blamable to kill a member of one's own tribe, and
it is praiseworthy to kill a member of a foreign tribe--whether the
tribe be mine or not. Nevertheless, his blame and his praise must be
regarded as expressions of moral emotions.
Finally, a moral emotion has a certain flavour of generality. We have
previously noticed that a moral judgment very frequently implies some
vague assumption {105} that it must be shared by everybody who
possesses both a sufficient knowledge of the case and a "sufficiently
developed" moral consciousness. We have seen, however, that this
assumption is illusory. It cannot, consequently, be regarded as a
_conditio sine quâ non_ for a moral judgment, unless, indeed, it be
maintained that such a judgment, owing to its very nature, is
necessarily a chimera--an opinion which, to my mind, would be simply
absurd. But, though moral judgments cannot lay claim to universality
or "objectivity," it does not follow that they are merely individual
estimates. Even he who fully sees their limitations must admit that,
when he pronounces an act to be good or bad, he gives expression to
something more than a personal opinion, that his judgment has
reference, not only to his own feelings, but to the feelings of others
as well. And this is true even though he be aware that his own
conviction is not shared by those around him, nor by anybody else. He
then feels that it _would be_ shared if other people knew the act and
all its attendant circumstances as well as he does himself, and if, at
the same time, their emotions were as refined as are his own. This
feeling gives to his approval or indignation a touch of generality,
which belongs to public approval and public indignation, but which is
never found in any merely individual emotion of gratitude or
revenge.
* * * * *
The analysis of the moral emotions which has been attempted in this
and the two preceding chapters, holds good, not only for such emotions
as we feel on account of the conduct of others, but for such emotions
as we feel on account of our own conduct as well. Moral
self-condemnation is a hostile attitude of mind towards one's self as
the cause of pain, moral self-approval is a kindly attitude of mind
towards one's self as a cause of pleasure. Genuine remorse, though
focussed on the will of the person who feels it, involves, vaguely or
distinctly, some desire to suffer. The repentant man wants to think of
the wrong he has committed, he wants clearly to realise {106} its
wickedness; and he wants to do this, not merely because he desires to
become a better man, but because it gives him some relief to feel the
sting in his heart. If punished for his deed, he willingly submits to
the punishment. The Philippine Islander, says Mr. Foreman, if he
recognises a fault by his own conscience, will receive a flogging
without resentment or complaint, although, "if he is not so convinced
of the misdeed, he will await his chance to give vent to his
rancour."[14] We may feel actual hatred towards ourselves, we may
desire to inflict bodily suffering upon ourselves as a punishment for
what we have done;[15] nay, there are instances of criminals, guilty
of capital offences, having given themselves up to the authorities in
order to appease their consciences by suffering the penalty of the
law.[16] Yet the desire to punish ourselves has a natural antagonist
in our general aversion to pain, and this often blunts the sting of
the conscience. Suicide prompted by remorse, which sometimes occurs
even among savages,[17] is to be regarded rather as a method of
putting an end to agonies, than as a kind of self-execution; and
behind the self-torments of the sinner frequently lurks the hopeful
prospect of heavenly bliss. Self-approval, again, is not merely joy at
one's own conduct, but is a kindly emotion, a friendly attitude
towards one's self. Such an attitude, for instance, lies at the bottom
of the feeling that one's own conduct merits praise or reward.
[Footnote 14: Foreman, _Philippine Islands_, p. 185. _Cf._ Hinde, _The
Last of the Masai_, p. 34; Zöller, _Das Togoland_, p. 37.]
[Footnote 15: _Cf._ Jodl, _Lehrbuch der Psychologie_, p. 675.]
[Footnote 16: von Feuerbach, _Aktenmässige Darstellung merkwürdiger
Verbrechen_, i. 249; ii. 473, 479 _sq._ von Lasaulx, _Sühnopfer der
Griechen und Römer_, p. 6.]
[Footnote 17: See _infra_, on Suicide.]
Not every form of self-reproach or of self-approval is a moral
emotion--no more than is every form of resentment or retributive
kindly emotion towards other persons. We may be angry with ourselves
on account of some act of ours which is injurious to our own
interests. He who has lost at play may be as vexed at himself as he
who has {107} cheated at play, and the egoist may bitterly reproach
himself for having yielded to a momentary impulse of benevolence, or
even to conscience itself. In order to be moral emotions, our
self-condemnation and self-approval must present the same
characteristics as make resentment and retributive kindliness moral
emotions when they are felt with reference to the conduct of other
people. A person does not feel remorse when he reproaches himself from
an egoistic motive, or when he afterwards regrets that he has
sacrificed the interests of his children to the impartial claim of
justice. Nor does a person feel moral self-approval when he is pleased
with himself for having committed an act which he recognises as
selfish or unjust. And besides being disinterested and apparently
impartial, remorse and moral self-approval have a flavour of
generality. As Professor Baldwin remarks, moral approval or
disapproval, not only of other people, but of one's self, "is never at
its best except when it is accompanied, in the consciousness which has
it, with the knowledge or belief that it is also socially shared."[18]
Indeed, almost inseparable from the moral judgments which we pass on
our own conduct seems to be the image of an impartial outsider who
acts as our judge.
[Footnote 18: Baldwin, _Social and Ethical Interpretation in Mental
Development_, p. 314.]
CHAPTER V
THE ORIGIN OF THE MORAL EMOTIONS
WE have found that resentment and retributive kindly emotion are
easily explicable from their usefulness, both of them having a
tendency to promote the interests of the individuals who feel them.
This explanation also holds good for the moral emotions, in so far as
they are retributive emotions: it accounts for the hostile attitude of
moral disapproval towards the cause of pain, and for the friendly
attitude of moral approval towards the cause of pleasure. But it still
remains for us to discover the origin of those elements in the moral
emotions by which they are distinguished from other, non-moral,
retributive emotions. First, how shall we explain their
disinterestedness?
We have to distinguish between different classes of conditions under
which disinterested retributive emotions arise. In the first place, we
may feel disinterested resentment, or disinterested retributive kindly
emotion, on account of an injury inflicted, or a benefit conferred,
upon another person with whose pain, or pleasure, we sympathise, and
in whose welfare we take a kindly interest. Our retributive emotions
are, of course, always reactions against pain, or pleasure, felt by
ourselves; this holds true for the moral emotions as well as for
revenge and gratitude. The question to be answered, then, is, Why
should we, quite disinterestedly, feel pain calling forth indignation
because our neighbour is hurt, and pleasure calling forth approval
because he is benefited?
{109} That a certain act causes pleasure or pain to the by-stander is
partly due to the close association which exists between these
feelings and their outward expressions. The sight of a happy face
tends to produce some degree of pleasure in him who sees it; the sight
of the bodily signs of suffering tends to produce a feeling of pain.
In either case the feeling of the spectator is the result of a process
of reproduction, the perception of the physical manifestation of the
feeling recalling the feeling itself on account of the established
association between them.
Sympathetic pain or pleasure may also be the result of an association
between cause and effect, between the cognition of a certain act or
situation and the feeling generally produced by this act or situation.
A blow may cause pain to the spectator before he has witnessed its
effect on the victim. The sympathetic feeling is of course stronger
when both kinds of association concur in producing it, than when it is
the result of only one. As Adam Smith observes, "general lamentations
which express nothing but the anguish of the sufferer, create rather a
curiosity to inquire into his situation, along with some disposition
to sympathise with him, than any actual sympathy that is very
sensible."[1] On the other hand, the sympathy which springs from an
association between cause and effect is much enhanced by the
perception of outward signs of pleasure or pain in the individual with
whom we sympathise.
[Footnote 1: Adam Smith, _Theory of Moral Sentiments_, p. 7.]
But the sympathetic feeling which results from association alone is
not what is generally understood by sympathy. Arising merely from the
habitual connection of certain cognitions with certain feelings in the
experience of the spectator, it is, strictly speaking, not at all
concerned with the _feelings_ of the other person. It is not a reflex
of what he feels--which, indeed, is a matter of complete
indifference--and the activity which it calls forth is thoroughly
selfish. If it is a feeling of pain, the spectator naturally, for his
own sake, tries to get rid of it; but this {110} may be done by
turning the back upon the sufferer, and looking out for some
diversion. The sympathetic feeling which springs from association
alone, may also produce a benevolent or hostile reaction against its
immediate cause: the smiling face often evokes a kindly feeling
towards the smiler, and "the sight of suffering often directs
irritation against the sufferer."[2] In such cases it is the other
person himself, rather than his benefactor or his tormentor, that is
regarded as cause by the sympathiser. When based on association alone,
the sympathetic feeling thus lacks the most vital characteristic of
sympathy, in the popular sense of the term: it lacks kindliness.[3]
[Footnote 2: Leslie Stephen, _Science of Ethics_, p. 243.]
[Footnote 3: The difference between sympathy and kindly ("tender")
emotion has been commented upon by Professor Ribot (_Psychology of the
Emotions_, p. 233), and by Mr. Shand, in his excellent chapter on the
'Sources of Tender Emotion,' in Stout's _Groundwork of Psychology_,
p. 198 _sqq._]
Sympathy, in the ordinary use of the word, requires the co-operation
of the altruistic sentiment or affection--a disposition of mind which
is particularly apt to display itself as kindly emotion towards other
beings. This sentiment,[4] only, induces us to take a kindly interest
in the feelings of our neighbours. It involves a tendency, or
willingness, and, when strongly developed, gives rise to an eager
desire, to sympathise with their pains and pleasures. Under its
influence, our sympathetic feeling is no longer a mere matter of
association; we take an active part in its production, we direct our
attention to any circumstance which we believe may affect the feelings
of the person whom we love, to any external manifestation of his
emotions. We are anxious to find out his joys and sorrows, so as to be
able to rejoice with him and to suffer with him, and, especially, when
he stands in need of it, to console or to help him. For the altruistic
sentiment is not merely willingness to sympathise; it is above all a
conative {111} disposition to do good. The latter aptitude must be
regarded rather as the cause than as the result of the former;
affection is not, as Adam Smith maintained,[5] merely habitual
sympathy, or its necessary consequence. It is true that sympathetic
pain, unaided by kindliness, may induce a person to relieve the
suffering of his neighbour, instead of shutting his eyes to it; but
then he does so, not out of regard to the feelings of the sufferer,
but simply to free himself of a painful cognition. Nor must it be
supposed that the altruistic sentiment prompts to assistance only by
strengthening the sympathetic feeling. The sight of the wounded
traveller may have caused no less pain to the Pharisee than to the
good Samaritan; yet it would have been impossible for the Samaritan to
dismiss his pain by going away, since he felt a desire to assist the
wounded, and his desire would have been left ungratified if he had not
stopped by the wayside. To the egoist, the relief offered to the
sufferer is a means of suppressing the sympathetic pain; to the
altruist, the sympathetic pain is, so to say, a means of giving
relief. The altruist wants to know, to feel the pain of his neighbour,
because he desires to help him. Why are the most kind-hearted people
often the most cheerful, if not because they think of alleviating the
misery of their fellow-creatures, instead of indulging in the
sympathetic pain which it evokes?
[Footnote 4: I use the word "sentiment" in the sense proposed by Mr.
Shand, in his article, 'Character and the Emotions,' in _Mind_, N.S.
v. 203 _sqq._, and adopted by Professor Stout, _op. cit._ p. 221
_sqq._ Sentiments cannot be actually felt at any one moment; "they are
complex mental dispositions, and may, as divers occasions arise, give
birth to the whole gamut of the emotions" (_ibid._ p. 223 _sq._).]
[Footnote 5: Adam Smith, _op. cit._ p. 323.]
It is obvious, then, that sympathy aided by the altruistic
sentiment--sympathy in the common sense--tends to produce
disinterested retributive emotions. When we to some extent identify,
as it were, our feelings with those of our neighbour, we naturally
look upon any person who causes him pleasure or pain as the cause of
our sympathetic pleasure or pain, and are apt to experience towards
that person a retributive emotion similar in kind, if not always in
degree, to the emotion which we feel when we are ourselves benefited
or injured. In all animal species which possess altruistic sentiments
in some form or other, we may be sure to find sympathetic resentment
as their accompaniment. {112} A mammalian mother is as hostile to the
enemy of her young as to her own enemy. Among social animals whose
gregarious instinct has developed into social affection,[6]
sympathetic resentment is felt towards the enemy of any member of the
group; they mutually defend each other, and this undoubtedly involves
some degree of sympathetic anger. With reference to animals in
confinement and domesticated animals, many striking instances of this
emotion might be quoted, even in cases when injuries have been
inflicted on members of different species to which they have become
attached. Professor Romanes' terrier, "whenever or wherever he saw a
man striking a dog, whether in the house, or outside, near at hand or
at a distance, . . . . used to rush in to interfere, snarling and
snapping in a most threatening way."[7] Darwin makes mention of a
little American monkey in the Zoological Gardens of London which, when
seeing a great baboon attack his friend, the keeper, rushed to the
rescue and by screams and bites so distracted the baboon, that the man
was able to escape.[8] The dog who flies at any one who strikes, or
even touches, his master, is a very familiar instance of sympathetic
resentment. The Rev. Charles Williams mentions a dog at Liverpool who
saved a cat from the hands of some young ruffians who were maltreating
it: he rushed in among the boys, barked furiously at them, terrified
them into flight, and carried the cat off in his mouth, bleeding and
almost senseless, to his kennel, where he laid it on the straw, and
nursed it.[9] In man, sympathetic resentment begins at an early age.
Professor Sully mentions a little boy under four who was indignant at
any picture where an animal suffered.[10]
[Footnote 6: The connection between social affection and the
gregarious instinct will be discussed in a subsequent chapter.]
[Footnote 7: Romanes, _Animal Intelligence_, p. 440.]
[Footnote 8: Darwin, _Descent of Man_, p. 103. _Cf._ Fisher, in _Revue
Scientifique_, xxxiii. 618. A curious instance of a terrier "avenging"
the death of another terrier, his inseparable friend, is mentioned by
Captain Medwin (_Angler in Wales_, ii. 162-164, 197, 216
_sq._).]
[Footnote 9: Williams, _Dogs and their Ways_, p. 43.]
[Footnote 10: Sully, _Studies of Childhood_, p. 250.]
The altruistic sentiments of mankind will be treated at {113} length
in subsequent chapters. We shall find reason to believe that not only
maternal, but to some extent, paternal and conjugal affection,
prevailed in the human race from ancient times, and that social
affection arose in those days when the conditions of life became
favourable to an expansion of the early family, when the chief
obstacle to a gregarious life--scarcity of food--was overcome, and
sociality, being an advantage to man, became his habit. There are
still savages who live in families rather than in tribes, but we know
of no people among whom social organisation outside the family is
totally wanting. Later discoveries only tend to confirm Darwin's
statement that, though single families or only two or three together,
roam the solitudes of some savage lands, they always hold friendly
relations with other families inhabiting the same district; such
families occasionally meeting in council and uniting for their common
defence.[11] But as a general rule, to which there are few exceptions,
the lower races live in communities larger than family groups, and all
the members of the community are united with one another by common
interests and common feelings. Of the harmony, mutual good-will, and
sense of solidarity, which under normal conditions prevail in these
societies, much evidence will be adduced in following pages. Mr.
Melville's remark with reference to some Marquesas cannibals may be
quoted as to some extent typical. "With them," he says, "there hardly
appeared to be any difference of opinion upon any subject whatever. .
. . They showed this spirit of unanimity in every action of life:
everything was done in concert and good fellowship."[12] When a member
of the group is hurt, the feeling of unanimity takes the form of
public resentment. As Robertson observed long ago, "in small
communities, every man is touched with the injury or affront offered
to the body of which he is a member, as if it were a personal attack
upon his own honour or safety. The desire of revenge is communicated
from breast to breast, {114} and soon kindles into rage."[13] Speaking
of some Australian savages, Mr. Fison remarks:--"To the savage, the
whole gens is the individual, and he is full of regard for it. Strike
the gens anywhere, and every member of it considers himself struck,
and the whole body corporate rises up in arms against the
striker."[14] Nobody will deny that there is a disinterested element
in this public resentment, even though every member of the group
consider the enemy of any other member to be actually his own enemy as
well, and, partly, hate him as such.
[Footnote 11: Darwin, _op. cit._ p. 108.]
[Footnote 12: Melville, _Typee_, p. 297 _sq._]
[Footnote 13: Robertson, _History of America_, i. 350. _Cf._
Clifford's theory of the "tribal self" (_Lectures and Essays_, p. 290
_sqq._). He says (_ibid._ p. 291), "The savage is not only hurt when
anybody treads on his foot, but when anybody treads on his tribe."]
[Footnote 14: Fison and Howitt, _Kamilaroi and Kurnai_, p. 170.]
Our explanation of what has here been called "sympathetic resentment,"
however, is not yet complete. This emotion, as we have seen, may be a
reaction against sympathetic pain; but it may also be directly
produced by the cognition of the signs of anger. In the former case it
is, strictly speaking, independent of the _emotion_ of the injured
individual; we may feel resentment on his behalf though he himself
feels none. In the latter case it is a reflected emotion, felt
independently of the cause of the original emotion of which it is a
reflection--as when the yells and shrieks of a street dog-fight are
heard, and dogs from all sides rush to the spot, each dog being
apparently ready to bite any of the others. In the former case, it is,
by the medium of sympathetic pain, closely connected with the
inflicted injury; in the latter case it may even be the reflection of
an emotion which is itself sympathetic, and the origin of which is
perhaps out of sight. In an infuriated crowd the one gets angry
because the other is angry, and very often the question, Why? is
hardly asked. This form of sympathetic resentment is of considerable
importance both as an originator and as a communicator of moral ideas.
To teach that a certain act is wrong is to teach that it is an object,
and a proper object, of moral indignation, and the aim of the
instructor {115} is to inspire a similar indignation in the mind of
the pupil. An intelligent teacher tries to attain this end by
representing the act in such a light as to evoke disapproval
independently of any appeal to authority; but, unfortunately, in many
cases where the duties of current morality are to be enjoined, he
cannot do so--for a very obvious reason. Of various acts which, though
inoffensive by themselves, are considered wrong, he can say little
more than that they are forbidden by God and man; and if,
nevertheless, such acts are not only professed, but actually felt, to
be wrong, that is due to the fact that men are inclined to sympathise
with the resentment of persons for whom they feel regard. It is this
fact that accounts for the connection between the punishment of an act
and the consequent idea that it deserves to be punished. We shall see
that the punishment which society inflicts is, as a rule, an
expression of its moral indignation; but there are instances in which
the order is reversed, and in which human, or, as it may be supposed,
divine, punishment or anger is the cause, and moral disapproval the
effect. Children, as everybody knows, grow up with their ideas of
right and wrong graduated, to a great extent, according to the temper
of the father or mother;[15] and men are not seldom, as Hobbes said,
"like little children, that have no other rule of good and evill
manners, but the correction they receive from their Parents, and
Masters."[16] The case is the same with any outbreak of public
resentment, with any punishment inflicted by society at large. However
selfish it may be in its origin, to whatever extent it may spring from
personal motives, it always has a tendency to become in some degree
disinterested, each individual not only being angry on his own behalf,
but at the same time reflecting the anger of everybody else.
[Footnote 15: _Cf._ Baring-Gould, _Origin and Developwent of Religious
Belief_, i. 212.]
[Footnote 16: Hobbes, _Leviathan_, i. 2, p. 76.]
Any means of expressing resentment may serve as a communicator of the
emotion. Besides punishment, language deserves special mention. Moral
disapproval may {116} be evoked by the very sounds of certain words,
like "murder," "theft," "cowardice," and others, which not merely
indicate the commission of certain acts, but also express the
opprobrium attached to them. By being called a "liar," a person is
more disgraced than by any plain statement of his untruthfulness; and
by the use of some strong word the orator raises the indignation of a
sympathetic audience to its pitch.
All the cases of disinterested resentment which we have hitherto
considered fall under the heading of sympathetic resentment. But there
are other cases into which sympathy does not enter at all. Resentment
is not always caused by the infliction of an injury; it may be called
forth by any feeling of pain traceable to a living being as its direct
or indirect cause. Quite apart from our sympathy with the sufferings
of others, there are many cases in which we feel hostile towards a
person on account of some act of his which in no way interferes with
our interests, which conflicts with no self-regarding feeling of ours.
There are in the human mind what Professor Bain calls "disinterested
antipathies," sentimental aversions "of which our fellow-beings are
the subjects, and on account of which we overlook our own interest
quite as much as in displaying our sympathies and affections."[17]
Differences of taste, habit, and opinion, are particularly apt to
create similar dislikes, which, as will be seen, have played a very
prominent part in the moulding of the moral consciousness. When a
certain act, though harmless by itself (apart from the painful
impression it makes upon the spectator), fills us with disgust or
horror, we may feel no less inclined to inflict harm upon the agent,
than if he had committed an offence against person, property, or good
name. And here, again, our resentment is sympathetically increased by
our observing a similar disgust in others. We are easily affected by
the aversions and likings of our neighbours. As Tucker said, "we grow
to love things we perceive {117} them fond of, and contract aversions
from their dislikes."[18]
[Footnote 17: Bain, _Emotions and the Will_, p. 268.]
[Footnote 18: Tucker, _Light of Nature Pursued_, i. 154.]
We have already seen that sympathy springing from an altruistic
sentiment may produce, not only disinterested resentment, but
disinterested retributive kindly emotion as well. When taking a
pleasure in the benefit bestowed on our neighbour, we naturally look
with kindness upon the benefactor; and just as sympathetic resentment
may be produced by the cognition of the outward signs of resentment,
so sympathetic retributive kindly emotion may be produced by the signs
of retributive kindliness. Language communicates emotions by terms of
praise, as well as by terms of condemnation; and a reward, like a
punishment, tends to reproduce the emotion from which it sprang.
Moreover, men have disinterested likings, as they have disinterested
dislikes. As an instance of such likings may be mentioned the common
admiration of courage when felt irrespectively of the object for which
it is displayed.
Having thus found the origin of disinterested retributive emotions, we
have at the same time partly explained the origin of the moral
emotions. But, as we have seen, disinterestedness is not the sole
characteristic by which moral indignation and approval are
distinguished from other retributive emotions: a moral emotion is
assumed to be impartial, or, at least, is not knowingly partial, and
it is coloured by the feeling of being publicly shared. However, the
real problem which we have now to solve is not how retributive
emotions may become apparently impartial and be coloured by a feeling
of generality, but why disinterestedness, apparent impartiality, and
the flavour of generality have become characteristics by which
so-called moral emotions are distinguished from other retributive
emotions. The solution of this problem lies in the fact that society
is the birthplace of the moral consciousness; that the first moral
judgments expressed, not the private emotions of isolated individuals,
but emotions which were {118} felt by the society at large; that
tribal custom was the earliest rule of duty.
Customs have been defined as public habits, as the habits of a certain
circle, a racial or national community, a rank or class of society.
But whilst being a habit, custom is at the same time something else as
well. It not merely involves a frequent repetition of a certain mode
of conduct, it is also a rule of conduct. As Cicero observes, the
customs of a people "are precepts in themselves."[19] We say that
"custom commands," or "custom demands," and speak of it as "strict"
and "inexorable"; and even when custom simply allows the commission of
a certain class of actions, it implicitly lays down the rule that such
actions are not to be interfered with.
[Footnote 19: Cicero, _De Officiis_, i. 41.]
The rule of custom is conceived of as a moral rule, which decides what
is right and wrong.[20] "Les loix de la conscience," says Montaigne,
"que nous disons naistre de nature, naissent de la coustume."[21] Mr.
Howitt once said to a young Australian native with whom he was
speaking about the food prohibited during initiation, "But if you were
hungry and caught a female opossum, you might eat it if the old men
were not there." The youth replied, "I could not do that; it would not
be right"; and he could give no other reason than that it would be
wrong to disregard the customs of his people.[22] Mr. Bernau says of
the British Guiana Indians:--"Their moral sense of good and evil is
entirely regulated by the customs and practices inherited from their
forefathers. What their predecessors believed and did must have been
right, and they deem it the height of presumption to suppose that any
could think and act otherwise."[23] The moral evil of the pagan
Greenlanders "was all that was contrary to laws and customs, as {119}
regulated by the angakoks," and when the Danish missionaries tried to
make them acquainted with their own moral conceptions, the result was
that they "conceived the idea of virtue and sin as what was pleasing
or displeasing to Europeans, as according or disaccording with their
customs and laws."[24] "The Africans, like most heathens," Mr. Rowley
observes, "do not regard sin, according to their idea of sin, as an
offence against God, but simply as a transgression of the laws and
customs of their country."[25] The Ba-Ronga call derogations of
universally recognised custom _yila_, prohibited, tabooed.[26] The
Bedouins of the Euphrates "make no appeal to conscience or the will of
God in their distinctions between right and wrong, but appeal only to
custom."[27] According to the laws of Manu, the custom handed down in
regular succession since time immemorial "is called the conduct of
virtuous men."[28] The Greek idea of the customary, [Greek:
to\ no/mimon], shows the close connection between morality and custom;
and so do the words [Greek: e)/thos, ê)/thos], and [Greek: e)thika/],
the Latin _mos_ and _moralis_, the German _Sitte_ and _Sittlichkeit_.[29]
Moreover, in early society, customs are not only moral rules, but the
only moral rules ever thought of. The savage strictly complies with
the Hegelian command that no man must have a private conscience. The
following statement, which refers to the Tinnevelly Shanars, may be
quoted as a typical example:--"Solitary individuals amongst them
rarely adopt any new opinions, or any new course of procedure. They
follow the multitude to do evil, and they follow the multitude to do
good. They think in herds."[30]
[Footnote 20: _Cf._ Austin, _Lectures on Jurisprudence_, i. 104;
Tönnies, 'Philosophical Terminology,' in _Mind_, N.S., viii. 304. Von
Jhering (_Zweck im Recht_, ii. 23) defines the German _Sitte_ as "die
im Leben des Volks sich bildende verpflichtende Gewohnheit"; and a
similar view is expressed by Wundt (_Ethik_, p. 128 _sq._).]
[Footnote 21: Montaigne, _Essais_, i. 22 (_[OE]uvres_, p. 48).]
[Footnote 22: Fison and Howitt, _op. cit._ p. 256 _sq._]
[Footnote 23: Bernau, _Missionary Labours in British Guiana_, p. 60.]
[Footnote 24: Rink, _Greenland_, p. 201 _sq._]
[Footnote 25: Rowley, _Religion of the Africans_, p. 44.]
[Footnote 26: Junod, _Ba-Ronga_, p. 477.]
[Footnote 27: Blunt, _Bedouin Tribes of the Euphrates_, ii. 224.]
[Footnote 28: _Laws of Manu_, ii. 18.]
[Footnote 29: For the history of these words, see Wundt, _op. cit._ p.
19 _sqq._ For other instances illustrating the moral character of
custom, see Maclean, _Compendium of Kafir Law and Customs_, p. 34
(Amaxosa); Macpherson, _Memorials of Service in India_, p. 94
(Kandhs); Kubary, _Ethnographische Beiträge zur Kenntniss der
Karolinischen Inselgruppe_, i. 73 (Pelew Islanders); Smith, _Chinese
Characteristics_, p. 119.]
[Footnote 30: Caldwell, _Tinnevelly Shanars_, p. 69.]
Disobedience to custom evokes public indignation. In {120} the lower
stages of civilisation, especially, custom is a tyrant who binds man
in iron fetters, and who threatens the transgressor, not only with
general disgrace, but often with bodily suffering. "To believe that
man in a savage state is endowed with freedom either of thought or
action," says Sir G. Grey, "is erroneous in the highest degree";[31]
and this statement is corroborated by an array of facts from all
quarters of the savage world.[32] Now, as the rule of custom is a
moral rule, the indignation aroused by its transgression is naturally
a moral emotion. Moreover, where all the duties incumbent on a man are
expressed in the customs of the society to which he belongs, it is
obvious that the characteristics of moral indignation are to be sought
for in its connection with custom. The most salient feature of custom
is its generality. Its transgression calls forth public indignation;
hence the flavour of generality which characterises moral disapproval.
Custom is fixed once for all, and takes no notice of the preferences
of individuals. By recognising the validity of a custom, I implicitly
admit that the custom is equally binding for me and for you and for
all the other members of the society. This involves disinterestedness;
I admit that a breach of the custom is equally wrong whether I myself
am immediately concerned in the act or not. It also involves apparent
impartiality; I assume that my condemnation of the act is independent
of the relationship in which the parties concerned in it stand to me
personally, or, at least, I am not aware that my condemnation is
influenced by any {121} such relationship. And this holds good
whatever be the origin of the custom. Though customs are very
frequently rooted in public sympathetic resentment or in public
disinterested aversions, they may have a selfish and partial origin as
well. At first the leading men of the society may have prohibited
certain acts because they found them disadvantageous to themselves, or
to those with whom they particularly sympathised. Where custom is an
oppressor of women, this oppression may certainly be traced back to
the selfishness of men. Where custom sanctions slavery, it is
certainly not impartial to the slaves. Yet in the one case as in the
other, I assume custom to be in the right, irrespectively of my own
station, and I even expect the women and slaves themselves to be of
the same opinion. Such an expectation is by no means a chimera. Under
normal social conditions, largely owing to men's tendency to share
sympathetically the resentment of their superiors, the customs of a
society are willingly submitted to, and recognised as right, by the
large majority of its members, whatever may be their station. Among
the Rejangs of Sumatra, says Marsden, "a man without property, family,
or connections, never, in the partiality of self-love, considers his
own life as being of equal value with that of a man of substance."[33]
However selfish, however partial a certain rule may be, it becomes a
true custom, a moral rule, as soon as the selfishness or the
partiality of its makers is lost sight of.
[Footnote 31: Grey, _Journals of Expeditions in North-West and Western
Australia_, ii. 217.]
[Footnote 32: Tylor, 'Primitive Society,' in _Contemporary Review_,
xxi. 706. _Idem_, _Anthropology_, p. 408 _sq._ Avebury, _Origin of
Civilisation_, p. 466 _sqq._ Eyre, _Journals of Expeditions into
Central Australia_, ii. 384, 385, 388. Curr, _The Australian Race_, i.
51. Mathew, 'Australian Aborigines,' in _Jour. and Proceed. Roy. Soc.
N.S. Wales_, xxiii. 398. _Idem_, _Eaglehawk and Crow_, p. 93. Taplin,
'Narrinyeri,' in Woods, _Native Tribes of South Australia_, pp. 35,
136 _sq._ Hawtrey, 'Lengua Indians of the Paraguayan Chaco,' in _Jour.
Anthr. Inst._ xxxi. 292. Murdoch, 'Ethnological Results of the Point
Barrow Expedition,' in _Ann. Rep. Bur. Ethn._ ix. 427 _sq._ (Point
Barrow Eskimo). Holm, 'Ethnologisk Skizze af Angmagsalikerne,' in
_Meddelelser om Grönland_, x. 85. Nansen, _First Crossing of
Greenland_, ii. 295. Johnston, _British Central Africa_, p. 452. New,
_Life, Wanderings, and Labours in Eastern Africa_, p. 110 (Wanika).
Scott Robertson, _Káfirs of the Hindu-Kush_, p. 183 _sq._]
[Footnote 33: Marsden, _History of Sumatra_, p. 247.]
It will perhaps be argued that, by deriving the characteristics of
moral indignation from its connection with custom, we implicitly
contradict our initial assumption that moral emotions lie at the
bottom of all moral judgments. But it is not so. Custom is a moral
rule only on account of the indignation called forth by its
transgression. In its ethical aspect it is nothing but a
generalisation of emotional tendencies, applied to certain modes of
conduct, and transmitted from generation to generation. Public
indignation lies at the bottom of it. In its capacity {122} of a rule
of duty, custom, _mos_, is derived from the emotion to which it gave
its name.
As public indignation is the prototype of moral disapproval, so public
approval, expressed in public praise, is the prototype of moral
approval. Like public indignation, public approval is characterised by
a flavour of generality, by disinterestedness, by apparent
impartiality. But of these two emotions public indignation, being at
the root of custom and leading to the infliction of punishment, is by
far the more impressive. Hence it is not surprising that the term
"moral" is etymologically connected with _mos_, which always implies
the existence of a social rule the transgression of which evokes
public indignation. Only by analogy it has come to be applied to the
emotion of approval as well.
Though taking their place in the system of human emotions as public
emotions felt by the society at large, moral disapproval and approval
have not always remained inseparably connected with the feelings of
any special society. The unanimity of opinion which originally
characterised the members of the same social unit was disturbed by its
advancement in civilisation. Individuals arose who found fault with
the moral ideas prevalent in the community to which they belonged,
criticising those ideas on the basis of their own individual feelings.
Such rebels are certainly no less justified in speaking in the name of
morality true and proper, than is society itself. The emotions from
which their opposition against public opinion springs may be, in
nature, exactly similar to the approval or disapproval felt by the
society at large, though they are called forth by different facts or,
otherwise, differ from these emotions in degree. They may present the
same disinterestedness and apparent impartiality--indeed, dissent from
the established moral ideas largely rises from the conviction that the
apparent impartiality of public feelings is an illusion. As will be
seen, the evolution of the moral consciousness involves a progress in
impartiality and justice; it tends towards an equalisation {123} of
rights, towards an expansion of the circle within which the same moral
rules are held applicable; and this process is in no small degree
effected by the efforts made by high-minded individuals to raise
public opinion to their own standard of right. Nay, as we have already
noticed, individual moral feelings do not even lack that flavour of
generality which characterises the resentment and approval felt
unanimously by a body of men. Though, perhaps, persecuted by his own
people as an outcast, the moral dissenter does not regard himself as
the advocate of a mere private opinion.[34] Even when standing alone,
he feels that his conviction is shared at least by an ideal society,
by all those who see the matter as clearly as he does himself, and who
are animated with equally wide sympathies, an equally broad sense of
justice. Thus the moral emotions remain to the last public
emotions--if not in reality, then as an ideal.
[Footnote 34: _Cf._ Pollock, _Essays in Jurisprudence and Ethics_,
p. 309.]
The fact that the earliest moral emotions were public emotions implies
that the original form of the moral consciousness cannot, as is often
asserted, have been the individual's own conscience. Dr. Martineau's
observation, that the inner springs of other men's actions may be read
off only by inference from our own experience, by no means warrants
his conclusion that the moral consciousness is at its origin engaged
in self-estimation, instead of circuitously reaching this end through
a prior critique upon our fellow-men.[35] The moral element which may
be contained in the emotion of self-reproach or self-approval, is
generally to such an extent mixed up with other and non-moral
elements, that it can be disentangled only by a careful process of
abstraction, guided by the feelings of other people with reference to
our conduct or by our own feelings with reference to the conduct of
others. The moral emotion of remorse presupposes some notion of right
and wrong, and the application of this notion to one's own conduct.
Hence it could never have {124} been distinguished as a special form
of, or element in, the wider emotion of self-reproach, unless the idea
of morality had been previously derived from another source. The
similarity between regret and remorse is so close, that in certain
European languages there is only one word for both.[36]
[Footnote 35: Martineau, _Types of Ethical Theory_, ii. 29 _sqq._]
[Footnote 36: As, in Swedish, the word _ånger_.]
* * * * *
From what has been said above it is obvious that moral resentment is
of extreme antiquity in the human race, nay, that the germ of it is
found even in the lower animal world, among social animals capable of
feeling sympathetic resentment. The origin of custom as a moral rule
no doubt lies in a very remote period of human history. We have no
knowledge of a savage people without customs, and, as will be seen
subsequently, savages often express their indignation in a very
unmistakable manner when their customs are transgressed. Various data
prove that the lower races have some feeling of justice, the flower of
all moral feelings. And the supposition that remorse is unknown among
them,[37] is not only unfounded, but contradicted by facts. Indeed,
genuine remorse is so hidden an emotion even among ourselves, that it
cannot be expected to be very conspicuous among savages. As we have
seen, it requires a certain power of abstraction, as well as great
impartiality of feeling, and must therefore be sought for at the
highest reaches of the moral consciousness rather than at its lowest
degrees. But to suppose that savages are entirely without a conscience
is quite contrary to what we may infer from the great regard in which
they hold their customs, as also contrary to the direct statements of
travellers who have taken some pains to examine the matter. The answer
given by the young Australian when asked by Mr. Howitt whether he
might not eat a female opossum if the old men were not present,[38]
certainly indicates conscientious respect for a moral rule, and is, as
Mr. Fison observes, "a striking instance of that 'moral {125} feeling'
which Sir John Lubbock denies to savages."[39] Dr. Hübbe-Schleiden
asserts that, among the people whom he had in his service, he found
the Negroes, in their sense of duty, not inferior, but rather superior
to the Europeans.[40] Mr. New says of the Wanika:--"Conscience lives
in them as the vicegerent of Almighty God, and is ever excusing or
else accusing them. It may be blunted, hardened, resisted, and largely
suppressed, but there it is."[41] M. Arbousset once desired some
Bechuanas to tell him whether the blacks had a conscience. "Yes, all
have one," they said in reply. "And what does it say to them?" "It is
quiet when they do well and torments them when they sin." "What do you
call sin?" "The theft, which is committed trembling, and the murder
from which a man purifies and re-purifies himself, but which always
leaves remorse."[42] Mr. Washington Matthews refers to a passage in a
Navaho story which "shows us that he who composed this tale knew what
the pangs of remorse might be, even for an act not criminal, as we
consider it, but merely ungenerous and unfilial."[43]
[Footnote 37: Avebury, _Origin of Civilisation_, pp. 421, 426.]
[Footnote 38: See _supra_, p. 118.]
[Footnote 39: Fison and Howitt, _op. cit._ p. 257 n.]
[Footnote 40: Hübbe-Schleiden, _Ethiopien_, p. 184 _sq._]
[Footnote 41: New, _op. cit._ p. 96.]
[Footnote 42: Arbousset and Daumas, _Exploratory Tour to the
North-East of the Colony of the Cape of Good Hope_, p. 322.]
[Footnote 43: Matthews, 'Study of Ethics among the Lower Races,' in
_Journal of American Folk-Lore_, xii. 7.]
A different opinion as to the existence of moral feelings among
savages has been expressed by Lord Avebury. To him even modern savages
seem to be "almost entirely wanting in moral feeling"; and he says
that he has "been forced to this conclusion, not only by the direct
statements of travelers but by the general tenor of their remarks, and
especially by the remarkable absence of repentance and remorse among
the lower races of men."[44] The importance of the subject renders
{126} it necessary to scrutinise the facts which Lord Avebury has
adduced in support of his conclusion.
[Footnote 44: Avebury, _op. cit._ pp. 414, 426. Lord Avebury quotes
Burton's statement that in Eastern Africa, as also among the Yoruba
negroes, conscience does not exist, and that "repentance" expresses
regret for missed opportunities of mortal crime. Speaking of the stage
of savagery represented by the Bakaïri, Dr. von den Steinen likewise
observes (_Unter den Naturvölkern Zentral-Brasiliens_, p. 351),
"Goodness and badness exist only in the crude sense of doing to others
what is agreeable or disagreeable, but the moral consciousness, and
the ideal initiative, influenced neither by prospect of reward nor
fear of punishment, are entirely lacking." Lippert maintains
(_Kulturgeschichte der Menschheit_, i. 27) "dass sich das Gewissen
beim Naturmenschen nicht als 'Selbsttadel,' sondern nur als Furcht
zeigt."]
Mr. Neighbors states that, among the Comanches of Texas, "no
individual action is considered a crime, but every man acts for
himself according to his own judgment, unless some superior power--for
instance, that of a popular chief--should exercise authority over
him." Another writer says, "The Redskin has no moral sense whatever."
Among the Basutos, according to Casalis, morality "depends so entirely
upon social order that all political disorganisation is immediately
followed by a state of degeneracy, which the re-establishment of order
alone can rectify." Similar accounts are given as regards Central
Africa and some other places. Thus at Jenna, and in the surrounding
districts, "whenever a town is deprived of its chief, the inhabitants
acknowledge no law--anarchy, troubles, and confusion immediately
prevail, and till a successor is appointed all labour is at an end."
The Damaras "seem to have no perceptible notion of right or wrong."
The Tasmanians were "without any moral views and impressions." Eyre
says of the Australians that they have "no moral sense of what is just
and equitable in the abstract"; and a missionary had very great
difficulty in conveying to those natives any idea of sin. The Kacharis
had "in their own language no words for sin, for piety, for prayer,
for repentance"; and of another of the aboriginal tribes of India Mr.
Campbell remarks that they "are . . . said to be without moral sense."
Lord Avebury in this connection even quotes a statement to the effect
that the expressions which the Tonga Islanders have for ideas like
vice and injustice "are equally applicable to other things." The South
American Indians of the Gran Chaco are said by the missionaries to
"make no distinction between right and wrong, and have therefore
neither fear nor hope of any present or future punishment or reward,
nor any mysterious terror of some supernatural power." Finally, Lord
Avebury observes that religion, except in the more advanced races, has
no moral aspect or influence, that the deities are almost invariably
regarded as evil, and that the belief in a future state is not at
first associated with reward or punishment.[45]
[Footnote 45: Avebury, _op. cit._ p. 417 _sqq._]
Many of the facts referred to by Lord Avebury do not at all presuppose
the absence of moral feelings. It is difficult to see why the
malevolence of gods should prevent men from having notions of right
and wrong, and we know from the Old Testament itself that there may be
a moral law without Paradise {127} and Hell. The statement concerning
the Comanches only implies that, among them, individual freedom is
great; whilst the social disorder which prevails among various peoples
at times of political disorganisation indicates that the cohesiveness
of the political aggregate is weak, as well as a certain discrepancy
between moral ideas and moral practice. In Morocco, also, the death of
a Sultan is immediately followed by almost perfect anarchy, and yet
the people recognise both the moral tenets of the Koran and the still
more stringent tenets of their ancient customs. As to the Basutos,
Casalis expressly states that they have the idea of moral evil, and
represent it in their language by words which mean ugliness, or
damage, or debt, or incapacity;[46] and M. Arbousset once heard a
Basuto say, on an unjust judgment being pronounced, "The judge is
powerful, therefore we must be silent; if he were weak, we should all
cry out about his injustice."[47] Moreover, a people may be
unconscious of what is just "in the abstract," and of moral "notions,"
in the strict sense of the term, and at the same time, in concrete
cases, distinguish between right and wrong, just and unjust. Of the
Western Australians, Mr. Chauncy expressly says that they have a keen
sense of justice, and mentions an instance of it;[48] whilst our
latest authorities on the Central Australians observe that, though
their moral code differs radically from ours, "it cannot be denied
that their conduct is governed by it, and that any known breaches are
dealt with both surely and severely."[49] As regards the Tonga
Islanders, Mariner states that "their ideas of honour and justice do
not very much differ from ours except in degree, they considering some
things more honourable than we should, and others much less so"; and
in another place he says that "the notions of the Tonga people, in
respect to honour and justice . . . are tolerably well defined, steady
and universal," though not always acted upon.[50] The statement that
the American Indians have "no moral sense whatever," sounds very
strange when compared with what is known about their social and moral
life; Buchanan, for instance, asserts that they "have a strong innate
sense of justice."[51] Of course, there may be diversity of opinion as
to what constitutes the "moral sense"; if the conception of sin or
other theological notions are regarded as essential to it, it is
probably {128} wanting in a large portion of mankind, and not only in
the least civilised. When missionaries or travellers deny to certain
savages moral feelings and ideas, they seem chiefly to mean feelings
or ideas similar to their own.
[Footnote 46: Casalis, _Basutos_, p. 304.]
[Footnote 47: Arbousset and Daumas, _op. cit._ p. 389.]
[Footnote 48: Brough Smyth, _Aborigines of Victoria_, ii. 228.]
[Footnote 49: Spencer and Gillen, _Native Tribes of Central
Australia_, p. 46.]
[Footnote 50: Mariner, _Natives of the Tonga Islands_, ii. 159, 163.]
[Footnote 51: Buchanan, _Sketches of the History, &c., of the North
American Indians_, p. 158.]
Of many savage and barbarous peoples it is directly affirmed that they
have a sense of justice. Mr. Man says concerning the Andaman
Islanders, "Certain traits which have been noticeable in their
dealings with us would give colour to the belief that they are not
altogether lacking in the sense of honour, and have some faint idea of
the meaning of justice."[52] Colonel Dalton states that, among the
Korwás on the highlands of Sirgúja, when several persons are
implicated in one offence, he has found them "most anxious that to
each should be ascribed his fair share of it, and no more, the oldest
of the party invariably taking on himself the chief responsibility as
leader or instigator, and doing his utmost to exculpate as
unaccountable agents the young members of the gang."[53] The Aleuts,
according to Veniaminof, are "naturally inclined to be just," and feel
deeply undeserved injuries.[54] Kolben, who is nowadays recognised as
a good authority,[55] wrote of the Hottentots, "The strictness and
celerity of the Hottentot justice are things in which they outshine
all Christendom."[56] Missionaries have wondered that, among the
Zulus, "in the absence for ages of all revealed truth and all proper
religious instruction, there should still remain so much of mental
integrity, so much ability to discern truth and justice, and withal so
much regard for these principles in their daily intercourse with one
another."[57] Zöller ascribes to the Negro a well-developed feeling of
justice. "No European," he says, "at least no European child, could
discriminate so keenly between just and unjust punishment."[58] Mr.
Hinde observes:--"One of the most marked characteristics of black
people is their keen perception of justice. They do not resent merited
punishment where it is coupled with justice upon other matters. The
Masai have their sense of justice particularly strongly
developed."[59] Dieffenbach writes of the Maoris, "There is a high
natural sense of justice amongst them; {129} and it is from us that
they have learnt that many forbidden things can be done with impunity,
if they can only be kept secret."[60] Justice is a virtue which always
commands respect among the Bedouins, and "injustice on the part of
those in power is almost impossible. Public opinion at once asserts
itself; and the Sheykh, who should attempt to override the law, would
speedily find himself deserted."[61]
[Footnote 52: Man, in _Jour. Anthr. Inst._ xii. 92.]
[Footnote 53: Dalton, _Descriptive Ethnology of Bengal_, p. 230.]
[Footnote 54: Veniaminof, quoted by Dall, _Alaska_, p. 398.]
[Footnote 55: Theophilus Hahn remarks (_The Supreme Being of the
Khoi-Khoi_, p. 40) that Kolben's reports have been doubted by European
writers without any good reason.]
[Footnote 56: Kolben, _Present State of the Cape of Good Hope_,
i. 301. _Cf._ _ibid._ i. 339.]
[Footnote 57: Quoted by Tyler, _Forty Years among the Zulus_, p. 197.]
[Footnote 58: Zöller, _Kamerun_, ii. 92. _Cf._ _Idem_, _Das Togoland_,
p. 37.]
[Footnote 59: Hinde, _The Last of the Masai_, p. 34. _Cf._ Foreman,
_Philippine Islands_, p. 185.]
[Footnote 60: Dieffenbach, _Travels in New Zealand_, ii. 106.]
[Footnote 61: Blunt, _Bedouin Tribes of the Euphrates_, ii. 224 _sqq._]
Much less conspicuous than the emotion of public resentment is the
emotion of public approval. These public emotions are largely of a
sympathetic character, and, whilst a tendency to sympathetic
resentment is always involved in the sentiment of social affection, a
tendency to sympathetic retributive kindly emotion is not. Among the
lower animals this latter emotion seems hardly to occur at all, and in
men it is often deplorably defective. Resentment towards an enemy is
itself, as a rule, a much stronger emotion than retributive kindly
emotion towards a friend. And, as for the sympathetic forms of these
emotions, it is not surprising that the altruistic sentiment is more
readily moved by the sight of pain than by the sight of pleasure,[62]
considering that its fundamental object is to be a means of protection
for the species. Moreover, sympathetic retributive kindliness has
powerful rivals in the feelings of jealousy and envy, which tend to
make the individual hostile both towards him who is the object of a
benefit and towards him who bestows it. As an ancient writer observes,
"many suffer with their friends when the friends are in distress, but
are envious of them when they prosper."[63] But though these
circumstances are a hindrance to the rise of retributive kindly
emotions of a sympathetic kind, they do not prevent public approval in
a case when the whole society profits by a benefit, nor have they any
bearing on those disinterested instinctive likings of which I have
spoken above. I think, then, we may {130} safely conclude that public
praise and moral approval occurred, to some degree, even in the
infancy of human society. It will appear from numerous facts recorded
in following chapters, that the moral consciousness of modern savages
contains not only condemnation, but praise.
[Footnote 62: _Cf._ Jodl, _Lehrbuch der Psychologie_, p. 686.]
[Footnote 63: Schmidt, _Ethik der alten Griechen_, i. 259.]
CHAPTER VI
ANALYSIS OF THE PRINCIPAL MORAL CONCEPTS
WE have assumed that the moral concepts are essentially
generalisations of tendencies in certain phenomena to call forth moral
emotions. We have further assumed that there are two kinds of moral
emotions: indignation and approval. If these assumptions hold good,
either indignation or approval must be at the bottom of every moral
concept. That such is really the case will, I think, become evident
from the present chapter, in which the principal of those concepts
will be analysed.
Our analysis will be concerned with moral concepts formed by the
civilised mind. Whilst the most representative of English terms for
moral estimates have equivalents in the other European languages, I do
not take upon myself to decide to what extent they have equivalents in
non-European tongues. That all existing peoples, even the very lowest,
have moral emotions is as certain as that they have customs, and there
can be no doubt that they give expression to those emotions in their
speech. But it is another question how far their emotions have led to
such generalisations as are implied in moral concepts. Concerning the
Fuegians M. Hyades observes, "Les idées abstraites sont chez eux à peu
près nulles. Il est difficile de définir exactement ce qu'ils
appellent un homme bon et un homme méchant; mais à coup sûr ils n'ont
pas la notion de ce qui est bon ou mauvais, abstraction faite de
l'individu ou de l'objet auquel ils appliqueraient l'un ou l'autre
{132} de ces attributs."[1] The language of the Californian Karok,
though rich in its vocabulary, is said to possess no equivalent for
"virtue."[2] In the aboriginal tongues of the highlanders of Central
India "there seem to be no expressions for abstract ideas, the few
such which they possess being derived from the Hindí. . . . . The
nomenclature of religious ceremony, of moral qualities, and of nearly
all the arts of life they possess, are all Hindí."[3] On a strict
examination of the language of the Tonga Islanders, Mariner could
discover "no words essentially expressive of some of the higher
qualities of human merit, as virtue, justice, humanity; nor of the
contrary, as vice, injustice, cruelty, &c. They have indeed
expressions for these ideas," he adds, but these expressions "are
equally applicable to other things. To express a virtuous or good man,
they would say, _tangata lillé_, a good man, or _tangata loto lillé_,
a man with a good mind; but the word lillé, good (unlike our word
virtuous), is equally applicable to an axe, canoe, or anything
else."[4] Of the Australian natives about Botany Bay and Port Jackson
Collins wrote, "That they have ideas of a distinction between good and
bad is evident from their having terms in their language significant
of these qualities." A fish of which they never ate, was _wee-re_, or
bad, whereas the kangaroo was _bood-yer-re_, or good; and these
expressions were used not only for qualities which they perceived by
their senses, but for all kinds of badness and goodness, and were the
only terms they had for wrong and right. "Their enemies were wee-re;
their friends bood-yer-re. On our speaking of cannibalism, they
expressed great horror at the mention, and said it was wee-re. On
seeing any of our people punished or reproved for ill-treating them,
they expressed their approbation, and said it was bood-yer-re, it was
right."[5]
[Footnote 1: Hyades and Deniker, _Mission scientifique du Cap Horn_,
vii. 251.]
[Footnote 2: Powers, _Tribes of California_, p. 22.]
[Footnote 3: Forsyth, _Highlands of Central India_, p. 139.]
[Footnote 4: Mariner, _Natives of the Tonga Islands_, ii. 147 _sq._]
[Footnote 5: Collins, _English Colony in New South Wales_, i. 548 _sq._]
{133} Considering, moreover, that even the European languages make use
of such general terms as "good" and "bad" for the purpose of
expressing moral qualities, it seems likely that, originally, moral
concepts were not clearly differentiated from other more comprehensive
generalisations, and that they assumed a more definite shape only by
slow degrees. At the same time we must not expect to find the
beginning of this process reflected in the vocabularies of languages.
There is every reason to believe that a savage practically
distinguishes between the "badness" of a man and the "badness" of a
piece of food, although he may form no clear idea of the distinction.
As Professor Wundt observes, "the phenomena of language do not admit
of direct translation back again into ethical processes: the ideas
themselves are different from their vehicles of expression, and here
as everywhere the external mark is later than the internal act for
which it stands."[6] Language is a rough generaliser; even superficial
resemblance between different phenomena often suffices to establish
linguistic identity between them. Compare the rightness of a line with
the rightness of conduct, the wrongness of an opinion with the
wrongness of an act. And notice the different significations given to
the verb "ought" in the following sentences:--"They ought to be in
town by this time, as the train left Paris last night"; "If you wish
to be healthy you ought to rise early"; "You ought always to speak the
truth." Though it may be shown that in these statements the predicate
"ought" signifies something which they all have in common--the
reference to a rule,[7]--we must by no means assume that this
constitutes the essence of the moral "ought," or gives us the clue to
its origin.
[Footnote 6: Wundt, _Ethik_, p. 36 (English translation, p. 44).]
[Footnote 7: _Cf._ Stephen, _Liberty, Equality, Fraternity_,
p. 343 _sq._]
Discarding all questions of etymology as irrelevant to our subject,[8]
we shall, in our analysis of moral concepts, {134} endeavour to fix
the true import of each concept by examining how, and under what
circumstances, the term expressing it is generally applied. We shall
restrict ourselves to the principal, typical terms which are used as
predicates in moral judgments. If we succeed in proving that they are
all fundamentally derived from either moral indignation or moral
approval, there can be no reasonable doubt as to the origin of the
rest.
[Footnote 8: The attempt to apply the philological method to an
examination of moral concepts has, in my opinion, proved a
failure--which may be seen from Mr. Baynes' book on _The Idea of God
and the Moral Sense in the Light of Language_.]
The tendency in a phenomenon to arouse moral indignation is directly
expressed by the term _bad_, and a disposition of mind which is
characterised by some special kind of badness is called _vice_.
Closely allied to the term "bad" is the term _wrong_. But there is a
difference in the use of these words. Whilst "bad" may be applied both
to a person's character and to his conduct, only his conduct may be
said to be "wrong." The reason for this is that the concept of moral
wrongness is modelled on the idea of a moral law, the breach of which
is regarded as "wrong." And, by laying down a moral law, we only
enjoin a certain mode of conduct; we do not command a person to have a
certain character.
The moral law is expressed by the term _ought_, a term which, in
modern ethics, generally occupies a central position among moral
predicates. The notion which it embodies is frequently looked upon as
ultimate and incapable of analysis--"too elementary" (to quote
Professor Sidgwick) "to admit of any formal definition."[9] This view,
I think, instead of simplifying the matter, has been one of the chief
causes of the prevailing confusion in ethical thought.
[Footnote 9: Sidgwick, _Methods of Ethics_, p. 33.]
Far from being a simple notion, "ought" appears to me clearly
decomposable, even though it have a special flavour of its own. First
of all, it expresses a conation. When I feel that I ought to do a
thing, I experience an impulse to do it, even though some opposite
impulse may finally determine my action. And when I say to another
man, "You ought to do this, or that," there is certainly implied {135}
a purpose to influence his action in a certain direction. In the
notion of _duty_, the ethical import of which is identical with that
of "ought," this conative element is not so obvious.
Closely connected with the conative nature of "ought" is the
imperative character it is apt to assume. But, though frequently used
imperatively, "ought" is not necessarily and essentially imperative.
Even if the "ought" which I address to myself, in a figurative sense,
may be styled a command, it is hardly appropriate to speak of a
present command with reference to past actions. The common phrase,
"You ought to have done this, or that," cannot be called a
command.
The conation expressed in "ought" is determined by the idea that the
mode of conduct which ought to be performed is not, or will possibly
not be, performed. It is also this idea of its not being performed
that determines the emotion which gives to "ought" the character of a
moral predicate. The doing of what ought not to be done, or the
omission of what ought not to be omitted, is apt to call forth moral
indignation--this is the most essential fact involved in the notion of
"ought." Every "ought"-judgment contains implicitly a negation. Nobody
would ever have dreamt of laying down a moral rule if the idea of its
transgression had not presented itself to his mind. We may reverse the
words of the Apostle,[10] and say that where no transgression is,
there is no law. When Solon was asked why he had specified no
punishment for one who had murdered a father, he replied that he
supposed it could not occur to any man to commit such a crime.[11]
Similarly, the modern Shintoist concludes that the primæval Japanese
were pure and holy from the fact that they are represented as a people
who had no moral commandments.[12] It is this prohibitive character of
"ought" that has imparted to duty that idea of antagonism to
inclination which has found its most famous expression {136} in the
Kantian ethics, and which made Bentham look upon the word itself as
having in it "something disagreeable and repulsive."[13] It is the
intrinsic connection between "ought" and "wrong" that has given to
duty the most prominent place in ethical speculation whenever moral
pessimism has been predominant. Whilst the ancient Greeks, with whom
happiness was the state of nature, never spoke of duty, but held
virtue to be the Supreme Good, Christianity, on the other hand, which
looked upon man as a being born and bred in sin, regarded morals
pre-eminently as the science of duty. Then, again, in modern times,
Kant's categorical imperative came as a reaction against that moral
optimism which once more had given the preference to virtue,
considering everything in the world or in humanity as beautiful and
good from the very beginning.[14] It is also worth noting that the
feeling of self-complacency connected with the consciousness of having
acted in accordance with the law of duty, has no distinctively
expressive name in ordinary language, while the opposite feeling is
known by so familiar and distinctive a term as "remorse." This is not,
as has been said,[15] "a significant indication of the moral condition
of mankind," but a significant indication of the true import of the
notion of duty itself.
[Footnote 10: _Romans_, iv. 15.]
[Footnote 11: Diogenes Laërtius, _Solon_, 10. Cicero, _Pro S. Roscio
Amerino_, 25.]
[Footnote 12: Griffis, _Religions of Japan_, p. 72.]
[Footnote 13: Bentham, _Deontoiogy_, i. 10.]
[Footnote 14: Ziegler, _Social Ethics_, pp. 22, 75 _sq._]
[Footnote 15: Murray, _Introduction to Ethics_, p. 108.]
It is not, then, in the emotion of approval that we must seek for the
origin of this concept. We may undoubtedly applaud him who is faithful
to his duty, but the idea of duty involves no applause. There is no
contradiction in the omission of an act being disapproved of and the
performance of it being praised. "Ought" and "duty" express only the
tendency of an omission to call forth disapproval, and say nothing
about the consequences of the act's performance. The conscientious man
refuses the homage paid to him, by saying, "I have only done my duty."
Duty is a "stern {137} lawgiver," who threatens with punishment, but
promises no reward.[16]
[Footnote 16: The intrinsic connection between duty and disapproval
has previously been noticed by Stuart Mill (in a note to James Mill's
_Analysis of the Human Mind_, ii. 325), according to whom "no case can
be pointed out in which we consider anything as a duty, and any act or
omission as immoral or wrong, without regarding the person who commits
the wrong and violates the duty as a fit object of punishment." _Cf._
also Bain, _Emotions and the Will_, ch. 15, and Gizycki, _Introduction
to the Study of Ethics_, English adaptation by Stanton Coit, p. 102
_sq._]
The ideas of "ought" and "duty" thus spring from the same source as
the ideas of "bad" and "wrong." To say that a man ought to do a thing
is, so far as the morality of his action is concerned, the very same
thing as to say that it is bad, or wrong, of him not to do it--in
other words, that the not-doing of it has a tendency to call forth
moral disapproval.
"Wrong" is popularly regarded as the opposite of _right_, and they are
really contradictories, but only within the sphere of positive moral
valuation. We do not call the actions of irresponsible beings, like
animals or infants, "right," although they are not wrong; nor do we
pronounce morally indifferent actions of responsible beings to be
"right," unless we wish thereby especially to mark their moral value
as not being wrong. An act which is permissible is of course not
wrong, and so far it may be said to be right; but it would be more
accurate to say that people have _a_ right to do it. The adjective
"right," in its strict sense, refers to cases from which the
indifferent is excluded. A right action is, on a given occasion, _the_
right action, and other alternatives are wrong. "Right" is thus
closely related to "ought," but at the same time "right" and
"obligatory" are not identical. I cannot quite subscribe to the view
of Professor Sidgwick, that "in the recognition of conduct as 'right'
is involved an authoritative prescription to do it."[17] What is right
is in accordance with the moral law; the adjective "right" means that
duty is fulfilled. It is true that the super-obligatory also is right.
But "right" takes no notice of the super-obligatory as distinct from
the obligatory, and what goes {138} beyond duty always involves the
fulfilment of some duty. It may be admitted to be "not only right,"
but not to be more right. Right has no comparative. A duty is either
fulfilled or not, and unless it be perfectly fulfilled the conduct is
wrong. There are degrees of wrongness and of goodness, as the moral
indignation and the moral approval may be stronger or weaker, but
there are no degrees of rightness.
[Footnote 17: Sidgwick, _op. cit._ p. 106.]
The fact that the right action is a duty fulfilled accounts for the
erroneous opinion so generally held by ethical writers that "right" is
intrinsically connected with moral approval.[18] The choice of the
right alternative may give us satisfaction and call forth in us an
emotion of approval. This emotion may be the motive for our pointing
out the rightness of the act, and the judgment in which we do so may
even intrinsically contain applause. The manner in which the judgment
"That is right," is pronounced, often shows that it is meant to be an
expression of praise. But this does not imply that the concept "right"
by itself has reference to moral approval and involves praise. It only
means that in one word is expressed a certain concept--the concept
that a duty is fulfilled--_plus_ an emotion of approval. That "right"
_per se_ involves no praise is obvious from the fact that we regard it
as perfectly right to pay a debt and to keep a promise, or to abstain
from killing, robbing, or lying, although such acts or omissions
generally have no tendency whatever to evoke in us an emotion of moral
approval.
[Footnote 18: Hutcheson, _Essay on the Nature and Conduct of the
Passions and Affections, with Illustrations on the Moral Sense_, p.
279. Clifford, _Lectures and Essays_, pp. 294, 304 _sq._ Fowler and
Wilson, _Principles of Morals_, ii. 199. Alexander, _Moral Order and
Progress_, p. 399.]
The concept of "right," then, as implying that the opposite mode of
conduct would have been wrong, ultimately derives its moral
significance from moral disapproval. This may seem strange considering
that "right" is commonly looked upon as positive and "wrong" as its
negation. But we must remember that language and popular conceptions
in these matters start {139} from the notion of a moral rule or
command. It is a matter of paramount importance that such modes of
conduct as are apt to arouse moral indignation should be avoided.
People try to prevent them by prohibitions and injunctions, often
emphasised by threats of penalties for the transgressors. The whole
moral and social discipline is based upon commands; customs are rules
of conduct, and so are laws. It is natural, then, that the notion of a
command should figure uppermost in popular conceptions of morality.
Obedience to the command is right, a breach of it is wrong. But the
fact which gives birth to the command itself is the indignation called
forth by the act which the command forbids, or by the omission of that
which it enjoins.
I have spoken here of "right" as an adjective. Used as a substantive,
to denote _a right_, it also, in whatever sense it be used, expresses
a concept which is rooted in the emotion of moral disapproval. To have
a right to do a thing is to be allowed to do it, either by positive
law, in the case of a legal right, or by the moral law, in the case of
a moral right; in other words, to have a moral right to do a thing
means that it is not wrong to do it. But generally the concept of "a
right" means something more than this. From the fact that an act is
allowable, that it is not wrong, it follows, as a rule, that it ought
not to be prevented, that no hindrance ought to be put in the way of
its performance; and this character of inviolability is largely
included in the very concepts of rights. That a man has a right to
live does not merely mean that he commits no wrong by supporting his
life, but it chiefly means that it would be wrong of other people to
prevent him from living, that it is their duty not to kill him, or
even, as the case may be, that it is their duty to help him to live.
And in order to constitute a right in him, the duty in question must
be a duty _to him_. That a right belonging to A is not merely a duty
incumbent on B, but a duty _to_ A incumbent on B, will become evident
from an example. To kill another {140} person's slave may be condemned
as an injury done to the slave himself, in which case it is a duty to
the slave not to kill him; or to kill another person's slave may be
condemned on account of the loss it causes to the master, in which
case it is deemed a duty to the master not to kill the slave. In the
latter case we can hardly say that the duty of not killing the slave
constitutes a right to live in the slave--it only constitutes a right
in the master to retain his slave alive, not to be deprived of him by
an act causing his death.
So commonly does the conception of a right belonging to a person
contain the idea of a duty which other persons owe him, that it seems
necessary to point out the existence of rights in which no such idea
is involved. A man's right to defend his country, for instance, does
not intrinsically imply that it is wrong of the enemy to disable him
from doing so. But, on the other hand, there are rights which are
nothing else than duties towards those who have the rights. A right is
not always a person's right to a certain activity, or to abstaining
from a certain activity; it may have exclusive reference to other
people's acts or omissions. That a man has the right to be rewarded by
his country only means that his country is under an obligation to
reward him. That a father has a right to be obeyed by his children
only means that it is a duty incumbent on his children to obey him.
That a person has the right of bodily integrity only means that it is
wrong to inflict on him a bodily injury. These rights may, no doubt,
if violated, give rise to certain rights of activity: a man may have a
right to claim the reward which is due to him, a father to exact from
his children the obedience which they owe him, a person who is wronged
to defend himself. But the rights of claiming a reward, of exacting
obedience, of resisting wrong, are certainly not identical with the
rights of being rewarded, of being obeyed, of not being
wronged.
It is commonly said that rights have their corresponding duties. But
if this expression is to be used, it must be {141} remembered that the
duty which "corresponds" to a right, as a matter of fact, is either
included in that right or simply identical with it. The identity
between the right and the duty, then, consists in this, that the
notion of a right belonging to a person is identical with the notion
of a duty towards him. Rights and duties are not identical in the
sense that it is always a duty to insist on a right, though this has
been urged.[19] If anybody prevents me from making use of my right it
may no doubt be deemed a duty on my part not to tolerate the wrong
committed against me, but nothing of the kind is involved in the
concept of a right. And the same may be said with reference to the
assertion that a right to do a thing is always, at the same time, a
duty to do it--an assertion which is a consequence of the doctrine
that there is nothing morally indifferent and nothing that goes beyond
duty; in other words, that all conduct of responsible beings is either
wrong or obligatory. Even if this doctrine were psychologically
correct--which it is not--even if there were a constant coincidence
between the acts which a person has a right to perform and acts which
it is his duty to perform, that would not constitute identity between
the concepts of rights and duties. According to the meaning of a
right, A's right may be B's duty towards A, but A's right cannot be
A's duty towards B or anybody else.
[Footnote 19: Alexander, _op. cit._ p. 146 _sq._]
Closely connected with the notions of wrongness and rightness are the
notions of _injustice_ and _justice_. Injustice, indeed, is a kind of
wrongness. To be unjust is always to be unjust to somebody, and this
implies a doing of wrong to somebody, a violation of somebody's right.
"Justice," again, is a kind of rightness. It involves the notion that
a duty to somebody, a duty corresponding to a right, is fulfilled;[20]
we say that justice "demands" that it should be fulfilled. As an act
is "right" if its omission {142} is wrong, so an act is "just," in the
strict sense of the word, if its omission is unjust. But, like the
adjective "right," the adjective "just" is also sometimes used in a
wider sense, to denote that something is "not unjust." As
non-obligatory acts that are "not wrong" can hardly be denied to be
"right," so non-obligatory acts that are "not unjust" can hardly be
denied to be "just," although they are not demanded by justice.
[Footnote 20: According to the _Institutiones_ of Justinian (i. 1. 1)
"justice is the constant and perpetual will to render to each one his
right,"--"justitia est constans et perpetua voluntas jus suum cuique
tribuens."]
At the same time, "injustice" and "justice" are not simply other names
for violating or respecting rights. Whenever we style an act "unjust,"
we emphasise that it involves partiality. We do not denominate murder
and robbery unjust, but wrong or criminal, because the partiality
involved in their commission is quite obscured by their general
wrongness or criminality; but we at once admit their gross injustice
when we consider that the murderer and robber indulged their own
inclinations with utter disregard of their neighbours' rights. And we
look upon "unjust" as an exceedingly appropriate term for a judge who
condemns an innocent man with the intention to save the culprit, and
for an employer who keeps for himself a profit which he ought to share
with his employees. Again, when we style an act "just," in the strict
sense of the term, we point out that an undue preference would have
been shown to somebody by its omission. It is true that, as Adam Smith
observes, "we may often fulfil all the rules of justice by sitting
still and doing nothing,"[21] and that the man who barely abstains
from violating either the person or the estate or the reputation of
his neighbours so far does justice to them; but in such a case we
hardly apply the epithet "just," simply because there is no reason for
emphasising the partiality involved in the opposite mode of conduct.
On the other hand, we say it is just, or, more emphatically, that
justice demands, that the innocent should not suffer in the place of
the guilty, or that the employer should give his employees all their
dues.
[Footnote 21: Adam Smith, _Theory of Moral Sentiments_, p. 117.]
It is necessary to note that the impartiality which justice {143}
demands is impartiality within the recognised order of rights, whether
these rights themselves have a partial origin or not. A father is
unjust if he gives away property to one of his children in preference
to others, in case all of them are recognised to have a right to an
equal share in his property, even though it be only a conditional
right; and a man is unjust if he keeps for himself a profit to which
another man has an equal right. But in a society which regards slavery
as a morally permissible institution, a man is not necessarily deemed
unjust if he beats a slave in a case where it would have been wrong to
beat a freeman. However, in the case of unequal rights, justice admits
of no greater difference of treatment than what the difference in
rights implies. It may be just to punish a man who by a crime has
forfeited that right to be protected from wilfully inflicted pain
which every law-abiding citizen possesses, but it is unjust to extend
the inequality between his condition and the condition of others
beyond the inequality of their rights by inflicting upon him a
punishment which is unduly severe.
It is the emphasis laid on the duty of impartiality that gives justice
a special prominence in connection with punishments and rewards. A
man's rights depend to a great extent upon his actions. Other things
being equal, the criminal has not the same rights to inviolability as
regards reputation, or freedom, or property, or life, as the innocent
man; the miser and egoist have not the same rights as the benefactor
and the philanthropist. On these differences in rights due to
differences in conduct, the terms "just" and "unjust" lay stress; for
in such cases an injustice would have been committed if the rights had
been equal. When we say of a criminal that he has been "justly"
imprisoned we point out that he was no victim of undue partiality, as
he had forfeited the general right to freedom on account of his crime.
When we say of a benefactor that he has been "justly" rewarded, we
point out that no favour was partially bestowed upon him in preference
to others, as he had acquired the special right of being rewarded. But
the {144} "justice" of a punishment or a reward, strictly speaking,
involves something more than this; as we have seen, what is strictly
"just" is always the discharge of a duty corresponding to a right
which would have been in a partial manner disregarded by a
transgression of the duty. If it is just that a person should be
rewarded, he ought to be rewarded, and to fulfil this duty is to do
him justice. Again, if it is just that a person should be punished, he
ought to be punished, and his not being punished is an injustice to
other persons. It is an injustice towards all those whose condemnation
of the wrong act finds its recognised expression in the punishment,
inasmuch as their rightful claim that the criminal should be punished,
their right of resisting wrong, is thereby violated in favour of the
wrong-doer. Moreover, his not being punished is an injustice towards
other criminals, who have been punished for similar acts, in so far as
they have a right to demand that no undue preference should be shown
to anybody whose guilt is equal to theirs. Retributive justice may
admit of a certain latitude as to the retribution. It may be a matter
of small concern from the community's point of view whether men are
fined or imprisoned for the commission of a certain crime. But it may
be a demand of justice that, under equal circumstances, all of them
should be punished with the same severity, since the crime has equally
affected their rights.
The emphasis which "injustice" lays on the partiality of a certain
mode of conduct always involves a condemnation of that partiality.
Like every other kind of wrongness, "injustice" is thus a concept
which is obviously based on the emotion of moral disapproval. And so
is the concept of "justice," whether it involves the notion that an
injustice would be committed if a certain duty were not fulfilled, or
it is simply used to denote that a certain mode of conduct is "not
unjust." But there is yet another sense in which the word "just" is
applied. It may emphasise the impartiality of an act in a tone of
praise. Considering how difficult it is to be perfectly impartial and
to give every man his due, especially when one's own interests are
{145} concerned, it is only natural that men should be applauded for
being just, and consequently that to call a person just should often
be to praise him. So, also, "justice" is used as the name for a
virtue, "the mistress and queen of all virtues."[22] But all this does
not imply that an emotion of moral approval enters into the concept of
justice. It only means that one word is used to express a certain
concept--a concept which, as we have seen, ultimately derives its
import from moral disapproval--_plus_ an emotion of approval. That the
concept of justice by itself involves no reference to the emotion of
moral approval appears from the fact that it is no praise to say of an
act that it is "only just."
[Footnote 22: Cicero, _De officiis_, iii. 6.]
* * * * *
From the concepts springing from moral disapproval we pass to those
springing from moral approval. Foremost among these ranks the concept
_good_.[23]
[Footnote 23: Professor Bain, who takes a very legal view of the moral
consciousness, maintains (_Emotions and the Will_, p. 292) that
"positive good deeds and self-sacrifice . . . transcend the region of
morality proper, and occupy a sphere of their own." A similar opinion
has been expressed by Prof. Durkheim (_Division du travail social_),
and, more recently, by Dr. Lagerborg, in his interesting essay, 'La
nature de la morale' (_Revue internationale de Sociologie_, xi. 466).
Prof. Durkheim argues (p. 30) that it would be "contraire à toute
méthode" to include under the same heading acts which are obligatory
and acts which are objects of admiration, and at the same time exempt
from all regulation. "Si donc, pour rester fidèle à l'usage, on
réserve aux premiers la qualification de moraux, on ne saurait la
donner également aux seconds." But I fail to see that ordinary usage
recognises regulation as the test of morality. On the contrary, terms
like "goodness" and "virtue," though having no reference whatever to
any moral rule, have always hitherto been applied to qualities
avowedly moral.]
Though "good," being affixed to a great variety of objects, takes
different shades of meaning in different cases, there is one
characteristic common to everything called "good." This is hardly, as
Mr. Spencer maintains,[24] its quality of being well adapted to a
given end. It is true that the good knife is one which will cut, the
good gun one which carries far and true. But I fail to see that "good"
in a moral sense involves any idea of an adaptation to a given
purpose, and, by calling conduct {146} "good," we certainly do not mean
that it "conduces to life in each and all." "Good" simply expresses
approval or praise of something on account of some quality which it
possesses. A house is praised as "good" because it fulfils the end
desired, a wine because it has an agreeable taste, a man on account of
his moral worth. "Good," as a moral epithet, involves a praise which
is the outward expression of the emotion of moral approval, and is
affixed to a subject of moral valuation on account of its tendency to
call forth such an emotion.
[Footnote 24: Spencer, _Principles of Ethics_, i. 21 _sqq._]
"Good" has commonly been identified with "right," but such an
identification is incorrect. A father does right in supporting his
young children, inasmuch as he, by supporting them, discharges a duty
incumbent upon him, but we do not say that he does a good deed by
supporting them, or that it is good of him to do so. Nor do we call it
good of a man not to kill or rob his neighbours, although his conduct
is so far right. The antithesis between right and wrong is, in a
certain sense at least, contradictory, the antithesis between good and
bad is only contrary. Every act--provided that it falls within the
sphere of positive moral valuation--that is not wrong is right, but
every act that is not bad is not necessarily good. Just as we may say
of a thing that it is "not bad," and yet refuse to call it "good," so
we may object to calling the simple discharge of a duty "good,"
although the opposite mode of conduct would be bad. On the other hand,
no confusion of ethical concepts is involved in attributing goodness
to the performance of a duty, or, in other words, praising a man for
an act the omission of which would have incurred blame. To say of one
and the same act that it is right and that it is good, really means
that we look upon it from different points of view. Since moral praise
expresses a benevolent attitude of mind, it is commendable for a man
not to be niggard in his acknowledgment of other people's right
conduct; whereas, self-praise being objectionable, only the other
point of view is deemed proper when he passes a {147} judgment upon
himself. He may say, without incurring censure, "I have done my duty,
I have done what is right," but hardly, "I have done a good deed"; and
it would be particularly obnoxious to say, "I am a good man." The best
man even refuses to be called good by others:--"Why callest thou me
good? there is none good but one, that is, God."[25]
[Footnote 25: _St. Matthew_, xix. 17.]
Whilst "goodness" is the general expression for moral praise, _virtue_
denotes a disposition of mind which is characterised by some special
kind of goodness. He who is habitually temperate possesses the virtue
of temperance, he who is habitually just the virtue of justice. And
even when a man is simply said to be "virtuous," this epithet is given
to him, more or less distinctly, with reference to some branch of
goodness which constitutes his virtue. A Supreme Being, to whom is
attributed perfect goodness, is not called virtuous, but
good.
It was the opinion of Aristotle that virtue is imperfect so long as
the agent cannot do the virtuous action without a conflict of
impulses. Others maintain, on the contrary, that virtue essentially
expresses effort, resistance, and conquest. It has been represented as
"mediation through pain";[26] according to Kant, it is "the moral
disposition in struggle."[27] But I do not see that virtue presupposes
struggle, nor that it is lessened by being exercised with little or no
effort. A virtue consists in the disposition to will or not to will
acts of a certain kind, and is by no means reduced by the fact that no
rival impulses make themselves felt. It is true that by struggle and
conquest a man may display more virtue, namely, the virtue of
self-restraint in addition to the virtue gained by it. The vigorous
and successful contest against temptation constitutes a virtue by
itself. For instance, the quality of mind which is exhibited in a
habitual and victorious effort to conquer strong sexual passions is a
virtue distinguishable from that of chastity. But even this virtue of
{148} resisting seductive impulses is not greater, _ceteris paribus_,
in proportion as the victory is more difficult. Take two men with
equally strong passions and equally exposed to temptations, who
earnestly endeavour to lead a chaste life. He who succeeds with less
struggle, thanks to his greater power of will, is surely inferior
neither in chastity nor in self-restraint. Suppose, again, that the
two men were exposed to different degrees of temptation. He who
overcomes the greater temptation _displays_ more self-restraint; yet
the other man may possess this virtue in an equal degree, and his
chastity is certainly not made greater thereby. He may have more
merit, but merit is not necessarily proportionate to virtue.
[Footnote 26: Laurie, _Ethica_, p. 253 _sqq._]
[Footnote 27: Kant, _Kritik der praktischen Vernunft_, i. 1. 3
(_Sämmtliche Werke_, v. 89).]
The virtues are broad generalisations of mental dispositions which, on
the whole, are regarded as laudable. Owing to their stereotyped
character, it easily happens, in individual cases, that the possession
of a virtue confers no merit upon the possessor; and, at least from
the point of view of the enlightened moral consciousness, a man's
virtues are no exact gauge of his moral worth. In order to form a just
opinion of the value of a person's character, we must take into
account the strength of his instinctive desires and the motives of his
conduct. There are virtues that pay no regard to this. A sober man,
who has no taste for intoxicants, possesses the virtue of sobriety in
no less degree than a man whose sobriety is the result of a difficult
conquest over a strong desire. He who is brave with a view to be
applauded is not, as regards the virtue of courage, inferior to him
who faces dangers merely from a feeling of duty. The only thing that
the possession of a virtue presupposes is that it should have been
tried and tested. We cannot say that people unacquainted with
intoxicants possess the virtue of sobriety, and that a man who never
had anything to spend distinguishes himself for frugality. For to
attribute a virtue to somebody is always to bestow upon him some
degree of praise, and it is no praise, only irony, to say of a man
that he "makes a virtue of necessity."
{149} Attempts have been made to reconcile the Aristotelian and the
Kantian views of the relation between virtue and effort, by saying
that virtue is the harmony won and merit is the winning of it.[28]
This presupposes that a man to whom virtue is natural has had his
fights. But, surely, it is not always so. Who could affirm that every
temperate, or charitable, or just man has acquired the virtue only as
a result of inward struggle? There are people to whom some virtues at
least are natural from the beginning, and others who acquire them with
a minimum of effort.
[Footnote 28: Dewey, _Study of Ethics_, p. 133 _sq._ Simmel,
_Einleitung in die Moralwissenschaft_, i. 228. _Cf._ also Shaftesbury
'Inquiry concerning Virtue and Merit,' i. 2. 4, in _Characteristicks_,
ii. 36 _sqq._]
There has been much discussion about the relation between virtue and
duty. It has been said that "they are co-extensive, the former
describing conduct by the quality of the agent's mind, the latter by
the nature of the act performed";[29] that they express the same
ideal, virtue subjectively, duty objectively;[30] or that virtue, in
its proper sense, is "the quality of character that fits for the
discharge of duty," and that it "only lives in the performance of
duty."[31] At the same time it is admitted that "the distinctive mark
of virtue seems to lie in what is beyond duty," and that "though every
virtue is a duty, and every duty a virtue, there are certain actions
to which it is more natural to apply the term virtuous."[32] Prof.
Sidgwick, again, in his elaborate chapter on 'Virtue and Duty,'
remarks that he has "thought it best to employ the terms so that
virtuous conduct may include the performance of duty as well as
whatever good actions may be commonly thought to go beyond duty;
though recognising that virtue in its ordinary use is most
conspicuously manifested in the latter."[33]
[Footnote 29: Alexander, _op. cit._ p. 244.]
[Footnote 30: Grote, _Treatise on the Moral Ideals_, p. 22. _Cf._
Seth, _Study of Ethical Principles_, p. 239.]
[Footnote 31: Muirhead, _Elements of Ethics_, p. 190 n.*]
[Footnote 32: Alexander, _op. cit._ p. 243 _sq._]
[Footnote 33: Sidgwick, _op. cit._ p. 221.]
It can be no matter of surprise that those who regard the notion of
"duty" as incapable of being analysed, or {150} who fail to recognise
its true import, are embarrassed by its relation to virtue. We do not
call it a virtue if a man habitually abstains from killing or robbing,
or pays his debts, or performs a great number of other duties. We do
call chastity and temperance and justice virtues, although we regard
it as obligatory on a man to be chaste, temperate, just. We also call
hospitality, generosity, and charity virtues in cases where they go
beyond the strict limits of duty. "The relation of virtue and duty is
complicated," says Professor Alexander.[34] "In its common use each
term seems to include something excluded from the other," observes
Professor Sidgwick.[35] But, indeed, the relation is not complicated,
for there is no other intrinsic relation between them than their
common antagonism to "wrong." That something is a duty implies that
its non-performance tends to evoke moral indignation, that it is a
virtue implies that its performance tends to evoke moral approval.
That the virtues actually cover a comparatively large field of the
province of duty is simply owing to their being dispositions of mind.
We may praise the habits of justice and gratitude, even though we find
nothing praiseworthy in an isolated just or grateful act.
[Footnote 34: Alexander, _op. cit._ p. 244.]
[Footnote 35: Sidgwick, _op. cit._ p. 219.]
There has been no less confusion with regard to the relation between
duty and _merit_. Like the notions of "good" and "virtue," the
"meritorious" derives its origin from the emotion of moral approval;
but while the former merely express a tendency to give rise to such an
emotion, "meritorious" implies that the object to which it refers
merits praise, that it has a just claim to praise, or, in other words,
that it ought to be recognised as good. This makes the term
"meritorious" more emphatic than the term "good," but at the same time
it narrows its province in a peculiar way. Just as the expression that
something ought to be done implies the idea of its not being done, so
the word "meritorious" suggests the idea of goodness which may fail of
due recognition. And as it is meaningless to speak of duty in a case
where the {151} opposite mode of conduct is entirely out of the
question, so it would be an absurdity to attribute merit to somebody
for an act the goodness of which is universally admitted. Thus
"meritorious" involves a restriction. It would be almost blasphemous
to call the acts of a God conceived to be infinitely good meritorious,
since it would suggest a limitation of his goodness.
The emphatic claim to praiseworthiness made by the "meritorious" has
rendered it objectionable to a great number of moralists. It has been
identified with the "super-obligatory"--a conception which is to many
an abomination. From what has been said above, however, it is manifest
that they are not identical. As the discharge of a duty may be
regarded as a good act, so it may also be regarded as an act which
ought to be recognised as good. Practically, no doubt, there is a
certain antagonism between duty and merit. We praise, and, especially,
we regard as deserving praise, only what is above the average,[36] and
we censure what is below it. No merit is conferred upon him who
performs a duty which is seldom transgressed, or the transgression of
which would actually incur punishment or censure. We do not think that
a man ought to be praised for what his own interest prompts him to
perform; and, since the transgression of a moral command which is
usually obeyed is generally censured or punished, there is under
ordinary circumstances nothing meritorious in performing a duty. But
though thus probably most acts which are deemed meritorious fall
outside the limits of duty as roughly drawn by the popular mind, we
are on the other hand often disposed to attribute merit to a man on
account of an act which, from a strict point of view, is his duty, but
a duty which most people, under the same circumstances, would have
left undischarged. This shows that the antagonism between duty and
merit is not absolute. And in the concept of merit _per se_ no such
antagonism is involved.
[Footnote 36: Merit, as Professor Alexander puts it (_op. cit._ p.
196), "expresses the interval which separates the meritorious from the
average."]
{152} I confess that I fail to grasp what those writers really mean
who identify the "meritorious" with the "super-obligatory," and at the
same time deny the existence of any super-obligatory. Do they shut
their eyes to the important psychical fact indicated by the term
"merit," or do they look upon it as a chimera inconsistent with a
sufficiently enlightened moral consciousness? For my own part, I
cannot see how the moral consciousness could dispense with the idea
that there are actions which merit praise or reward, which ought to be
praised or rewarded. The denial of merit can be defended from a purely
theological point of view, but then only with regard to man's relation
to God. It is obvious that a fallen being who is sinning even when he
does his best, could not be recognised as good by God and could have
no merit. But it is hardly just, nor is it practically possible, that
a man should measure his fellow-man by a superhuman standard of
perfection, and try to suppress the natural emotion of moral approval
and the claims springing from it, by persuading himself that there is
no mortal being who ever does anything which ought to be recognised as
good.
Quite distinct from the question of merit, then, is that of the
_super-obligatory_. Can a man do more than his duty, or, in other
words, is there anything good which is not at the same time a duty?
The answer depends on the contents given to the commandments of duty,
hence it may vary without affecting the concept of duty itself. If we
consider that there is an obligation on every man to promote the
general happiness to the very utmost of his ability, we must also
maintain that nobody can ever do anything good beyond his duty. The
same is the case if we regard "self-realisation," or a "normal"
exercise of his natural functions, as a man's fundamental duty. In all
these cases "to aim at acting beyond obligation," as Price puts
it,[37] is "the same with aiming at acting contrary to obligation, and
doing more than is fit to be done, the same with doing wrong." It can
hardly be denied, however, {153} that those who hold similar views have
actually two standards of duty, one by which they measure man and his
doings in the abstract, with reference to a certain ideal of life
which they please to identify with duty, and another by which they are
guided in their practical moral judgments upon their own and their
neighbours' conduct. The conscientious man is apt to judge himself
more severely than he judges others, partly because he knows his own
case better than theirs,[38] and partly because he is naturally afraid
of being intolerant and unjust. He may indeed be unwilling to admit
that he ever can do more than his duty, seeing how difficult it is
even to do what he ought to do, and impressed, as he would be, with
the feeling of his own shortcomings. Yet I do not see how he could
conscientiously deny that he has omitted to do many praiseworthy or
heroic deeds without holding himself blamable for such omissions.
[Footnote 37: Price, _Review of the Principal Questions in Morals_,
p. 204 _sq._]
[Footnote 38: _Cf._ Sidgwick, _op. cit._ p. 221.]
Professor Sidgwick observes that "we should not deny that it is, in
some sense, a man's strict duty to do whatever action he judges most
excellent, so far as it is in his power."[39] This, as it seems to me,
is not a matter of course, and nothing of the kind is involved in the
notion of duty itself. We must not confound the moral law with the
moral ideal. Duty is the minimum of morality, the supreme moral ideal
of the best man is the maximum of it. Those who sum up the whole of
morality in the word "ought" identify the minimum and the maximum, but
I fail to see that morality is better for this. Rather it is worse.
The recognition of a "super-obligatory" does not lower the moral
ideal; on the contrary it raises it, or at any rate makes it more
possible to vindicate the moral law and to administer it justly. It is
nowadays a recognised principle in legislation that a law loses part
of its weight if it cannot be strictly enforced. If the realisation of
the highest moral ideal is commanded by a moral law, such a law will
always remain a dead letter, and morality will gain nothing. Far above
the anxious {154} effort to fulfil the commandments of duty stands the
free and lofty aspiration to live up to an ideal, which, unattainable
as it may be, threatens neither with blame nor remorse him who fails
to reach its summits. Does not experience show that those whose
thoughts are constantly occupied with the prescriptions of duty are
apt to become hard and intolerant?
[Footnote 39: _Ibid._ p. 219.]
Those who deny the existence of anything morally "praiseworthy" which
is not a duty, are also generally liable to deny the existence of
anything morally _indifferent_ in the conduct of responsible beings.
The "super-obligatory" and the "indifferent" have this in common, that
they are "ultra-obligatory," and the denial of the one as well as of
the other is an expression of the same tendency to look upon the moral
law as the sole fact of the moral consciousness. Even Utilitarianism
cannot consistently admit of anything indifferent within the province
of moral valuation, since two opposite modes of conduct can hardly
produce absolutely the same sum of happiness. Such a repudiation of
the "indifferent" being quite contrary to the morality of common
sense, which, after all, no ethical theory can afford to neglect,
considerable ingenuity has been wasted on vain attempts to show that
the "indifferent" is nothing but a rude popular conception unable to
keep its ground against a thoroughgoing examination. Professor Ziegler
ironically asks:--"Such outward matters as eating and drinking are
surely morally indifferent? And yet is eating and drinking too much,
is spending too much time in outdoor exercise, is lounging idly about,
morally indifferent? or, on the other hand, is it morally allowable or
wholesome to reduce oneself and make oneself weak and ill by fasting,
or to become a hypochondriac by continually staying indoors?"[40] This
argument, however, involves a confusion of different volitions. The
fact that eating or drinking generally, or eating or drinking too much
or too little, are no matters of indifference, surely does not prevent
{155} eating or drinking on some certain occasion from being
indifferent. Mr. Bradley again observes:--"It is right and a duty that
the sphere of indifferent detail should exist. It is a duty that I
should develop my nature by private choice therein. Therefore,
_because_ that is a duty, it is a duty _not_ to make a duty of every
detail; and thus in every detail I have done my duty."[41] This
statement also shows a curious confusion of entirely different facts.
It may be very true that it is a duty to recognise certain actions as
indifferent. This is one thing by itself. But it is quite another
thing to perform those actions. And if it is a duty to recognise
certain actions as indifferent how could it possibly at the same time
be held a duty to perform them?
[Footnote 40: Ziegler, _op. cit._ p. 85.]
[Footnote 41: Bradley, _Ethical Studies_, p. 195, n. 1.]
It has been maintained that the sphere of the indifferent forms the
totality of "ought"; that when the same end may be reached by a
variety of means, an action may be indifferent merely in relation to
the choice of means, but not so far as regards the attainment of the
end, and hence is only apparently indifferent.[42] "If it is my moral
duty to go from one town to another," says Mr. Bradley, "and there are
two roads which are equally good, it is indifferent to the proposed
moral duty _which_ road I take; it is not indifferent _that_ I do take
one or the other; and whichever road I do take, I am doing my duty on it,
and hence it is far from indifferent: my walking on road A is a matter
of duty in reference to the end, though not a matter of duty if you
consider it against walking on road B; and so with B--but I can escape
the sphere of duty neither on A nor on B." All this is true, but forms
no argument against the "indifferent." The statement, "You ought to go
to the town and to take either road A or B," refers to two volitions
which are regarded as wrong, namely, the volition not to go to the
town at all, and the volition to take any road not A or B; and it
{156} refers also to two pairs of volitions in reference to which it
indicates that the choice between the volitions constituting each pair
is indifferent. You may choose to take road A or not to take it; you
may choose to take road B or not to take it. The "indifferent" is
always an alternative between contradictories. It can therefore never
form part of an "ought"-totality, being itself a totality as complete
as possible. This is somewhat disguised by a judgment which makes an
obligation of a choice between A and B, but becomes conspicuous if we
consider a simple case of indifference. Suppose that it is considered
indifferent whether you speak or do not speak on a certain occasion.
What is here the "ought" that forms the totality of the indifferent?
Would there be any sense in saying that you ought either to speak or
not to speak? or is the alternative, speaking--not speaking, only a
link in an indefinite chain of alternatives, each of which is by
itself indifferent, in a relative sense, but the sum of which forms
the "ought"? You may be permitted--it will perhaps be argued--in a
given moment to speak or to abstain from speaking, to write or to
abstain from writing, to read or to abstain from reading, and so on;
but however wide the province of the permissible may be, there must
always be a limit inside which you ought to remain. That you do this
or that may be a matter of indifference, but only of relative
indifference, for it is not indifferent what you do on the whole;
hence there is nothing absolutely indifferent. Such an argument,
however, involves a misapprehension of the true meaning of the
"indifferent." The predicate expressing indifference refers to certain
definite volitions and their contradictories, not to the whole of a
man's conduct in a certain moment. The whole of a man's conduct is
never indifferent. But neither is the whole of a man's conduct ever
wrong. In the moment when a murderer kills his victim he is fulfilling
an endless number of duties: he abstains from stealing, lying,
committing adultery, suicide, and so on. The predicate "wrong" only
marks the moral {157} character of a special mode of conduct. Why
should not the indifferent be allowed to do the same?
[Footnote 42: Simmel, _op. cit._ i. 35 _sqq._ Alexander, _op. cit._
p. 50 _sqq._ Murray, _op. cit._ p. 26 _sq._ Bradley, _op. cit._
p. 195 _sq._]
It has, finally, been observed that the so-called "indifferent" is
something "the morality of which can only be individually
determined."[43] This remark calls attention to the fact that no mode
of conduct can be regarded as indifferent without a careful
consideration of individual circumstances, and that much which is
apparently indifferent is not really so. This, however, does not
involve an abolition of the indifferent. Such an abolition would be
the extreme of moral intolerance. He who tried to put it into practice
would be the most insupportable of beings, and to himself life would
be unbearable. Fortunately, such a man has never existed. The attempts
to make every action, even the most trivial, of responsible beings a
matter of moral concern, are only theoretical fancies without
practical bearing, a hollow and flattering tribute to the idol of
Duty.
[Footnote 43: Martensen, _Christian Ethics_, p. 415.]
CHAPTER VII
CUSTOMS AND LAWS AS EXPRESSIONS OF MORAL IDEAS
MORAL ideas are expressed in moral judgments. We have hitherto
examined the predicates of such judgments, the import and origin of
the moral concepts. Now a much wider field or research remains for us
to traverse. We shall direct our attention to the subjects of moral
judgments, to the mass of phenomena which, among different peoples and
in different ages, have had a tendency to call forth moral blame and
moral praise. We shall discuss the general characteristics which all
these phenomena have in common. We shall classify the most important
of them, and study the moral ideas held with reference to the
phenomena of each class separately. And in both cases we shall not
only analyse, but try to find an answer to the question, Why?--the
ultimate aim of all scientific research. But before entering upon this
vast undertaking, we must define the lines on which it is to be
conducted. How can we get an insight into the moral ideas of mankind
at large?
In answering this question I need not dwell upon such obvious means of
information as direct experience, or records of moral maxims and
sentiments found in proverbs, literary and philosophical works, and
religious codes. The sources which, from an evolutionary point of
view, are of the most comprehensive importance for our study, are
tribal and national customs and laws. It is to these sources that the
present chapter will be devoted.
{159} We have seen that a custom, in the strict sense of the word, is
not merely the habit of a certain circle of men, but at the same time
involves a moral rule. There is a close connection between these two
characteristics of custom: its habitualness and its obligatoriness.
Whatever be the foundation for a certain practice, and however trivial
it may be, the unreflecting mind has a tendency to disapprove of any
deviation from it for the simple reason that such a deviation is
unusual. As Abraham Tucker observes, "it is a constant argument among
the common people, that a thing must be done, and ought to be done,
because it always has been done."[1] Children show respect for the
customary,[2] and so do savages. "If you ask a Kaffir why he does so
and so, he will answer--'How can I tell? It has always been done by
our forefathers.'"[3] The only reason which the Eskimo can give for
some of their present customs, to which they adhere from fear of ill
report among their people, is that "the old Innuits did so, and
therefore they must."[4] In the behaviour of the Aleut, who "is
bashful if caught doing anything unusual among his people,"[5] and in
the average European's dread of appearing singular, we recognise the
influence of the same force of habit.
[Footnote 1: Tucker, _Light of Nature_, ii. 593. _Cf._ also Simmel,
_Einleitung in die Moralwissenschaft_, i. 65 _sqq._]
[Footnote 2: Sully, _Studies of Childhood_, p. 280 _sq._]
[Footnote 3: Leslie, _Among the Zulus and Amatongas_, p. 146.]
[Footnote 4: Hall, _Arctic Researches_, p. 569.]
[Footnote 5: Dall, _Alaska_, p. 396.]
On the other hand, it should be remembered that not every public habit
is a custom, involving an obligation; certain practices, though very
general in a society, may even be reprobated by almost every one of
its members. The habits of a people must therefore be handled with
discretion by the student of moral ideas. Yet when he has no reason to
conclude as to some special habit that it is held obligatory, he may,
probably always, be sure that it is either allowed, or, in spite of
all assurances of its wickedness, that the disapproval of it is not
generally very deep or genuine. In a community where lying is a {160}
prevailing vice, truthfulness cannot be regarded as a very sacred
duty; and where sexual immorality is widely spread, the public
condemnation of it always smacks of hypocrisy. Men's standard of
morality is not independent of their practice. The conscience of a
community follows the same rule as the conscience of an individual.
"Commit a sin twice," says the Talmud, "and you will think it
perfectly allowable."[6] Hence for the study of the inmost convictions
of a nation, its "bad habits" form a valuable complement to its
professed opinions.
[Footnote 6: Deutsch, _Literary Remains_, p. 58.]
The dictates of custom being dictates of morality, it is obvious that
the study of moral ideas will, to a large extent, be a study of
customs. But at the same time it should be borne in mind that custom
never covers the whole field of morality, and that the uncovered space
grows larger in proportion as the moral consciousness develops. Being
a rule of duty, custom may only indirectly be an expression of moral
approval, by claiming, in certain cases, that goodness should be
rewarded. But even when demanding praise, custom is not always a
reliable exponent of merit; it includes politeness, and politeness is
a great deceiver. Custom may compel us to praise a man for form's
sake, when he deserves no praise, and to thank him when he deserves no
thanks. Moreover, custom regulates external conduct only. It tolerates
all kinds of volitions and opinions if not openly expressed. It does
not condemn the heretical mind, but the heretical act. It demands that
under certain circumstances certain actions shall be either performed
or omitted, and, provided that this demand is fulfilled, it takes no
notice of the motive of the agent or omitter. Again, in case the
course of conduct prescribed by custom is not observed, the mental
facts connected with the transgression, if regarded at all, are dealt
with in a rough and ready manner, according to general rules which
hardly admit of individualisation. Yet the incongruity between custom
and morality which ensues from these circumstances is on {161} the
whole more apparent than real. It is rather an incongruity between
different moral standards. The unreflecting moral consciousness, like
custom, cares comparatively little for the internal aspect of conduct.
It does not ask whether a man goes to church on Sunday from a
religious motive or from fear of public opinion; it does not ask
whether he stays at home from love of ease or from dissent of belief
and avoidance of hypocrisy. It is ready to blame as soon as the
dictate of custom is disobeyed. The rule of custom is the rule of duty
at early stages of development. Only progress in culture lessens its
sway.
Finally, the moral ideas which are expressed in the customs of a
certain circle of men are not necessarily shared by every one of its
members. This may, in the present connection, be considered a matter
of slight importance by him who regards morality as "objectively"
realised in the customs of a people, and who denies the individual the
right to a private conscience. But from the subjective point of view
which I am vindicating, individual conviction has a claim to equal
consideration with public opinion, nay frequently, to higher respect,
representing as it does in many cases a higher morality, a moral
standard more purified by reflection and impartiality. At the lower
stages of civilisation, however, where a man is led by his feelings
more than by his thoughts, such a differentiation of moral ideas
hardly occurs. The opinions of the many are the opinions of all, and
the customs of a society are recognised as rules of duty by all its
members.
In primitive society custom stands for law, and even where social
organisation has made some progress it may still remain the sole rule
for conduct.[7] The authority of {162} a chief does not necessarily
involve a power to make laws. Even kings who are described as
autocrats may be as much tied by custom as is any of their
subjects.
[Footnote 7: Cranz, _History of Greenland_, i. 170. Dall, _op. cit._
p. 381 (Tuski). Dobrizhoffer, _Account of the Abipones_, p. 95.
Shooter, _Kafirs of Natal and the Zulu Country_, p. 101 _sq._ Holden,
_Past and Future of the Kaffir Races_, p. 336. Mungo Park, _Travels in
the Interior of Africa_, p. 16. Scaramucci and Giglioli, 'Notizie sui
Danakil,' in _Archivio per l'antropologia e la etnologia_, xiv. 39.
Earl, _Papuans_, p. 105 (Arru Islanders). Forbes, _A Naturalist's
Wanderings in the Eastern Archipelago_, p. 473 (Timorese). Dalton,
_Ethnology of Bengal_, p. 51 (Manipuris). Rockhill, _Land of the
Lamas_, p. 220 (Eastern Tibetans).]
The Rejangs of Sumatra "do not acknowledge a right in the chiefs to
constitute what laws they think proper, or to repeal or alter their
ancient usages, of which they are extremely tenacious and jealous."
There is no word in their language which signifies law, and the
chiefs, in pronouncing their decisions are not heard to say, "So the
law directs," but, "Such is the custom."[8] According to Ellis, "the
veneration of the Malagasy for the customs derived from tradition, or
any accounts of their ancestors . . . influences both their public and
private habits; and upon no individual is it more imperative than upon
their monarch, who, absolute as he is in other respects, wants either
the will or the power to break through the long-established
regulations of a superstitious people."[9] The king of Ashanti,
although represented as a despotic monarch, is nevertheless under an
obligation to observe the national customs which have been handed down
to the people from remote antiquity, and a practical disregard of this
obligation, in the attempt to change some of the old customs, cost one
of the kings his throne.[10] "The Africans," says Mr. Winwood Reade,
with special reference to Dahomey, "have sometimes their enlightened
kings, as the old barbarians had their sages and their priests. But it
is seldom in the power of the heads of a people to alter those customs
which have been held sacred from time immemorial."[11] The Basutos,
among whom "the chiefs have the right of making laws and publishing
regulations required by the necessities of the times," regard such
laws, or _molaos_, as inferior to the _mekhoas_, "the use and wont,"
which constitute the real laws of the country.[12] Among the ancient
Irish, there was no sovereign authority competent to enact a new law,
the function of the king being merely, as chief of the tribal
assembly, to see that the proper customs were observed.[13]
[Footnote 8: Marsden, _History of Sumatra_, p. 217.]
[Footnote 9: Ellis, _History of Madagascar_, i. 359.]
[Footnote 10: Beecham, _Ashantee and the Gold Coast_, p. 90 _sq._ _Cf._
Stuhlmann, _Mit Emin Pascha ins Herz von Afrika_, p. 523
(A-l[=u]r).]
[Footnote 11: Reade, _Savage Africa_, p. 52 _sq._]
[Footnote 12: Casalis, _Basutos_, p. 228.]
[Footnote 13: _Ancient Laws of Ireland_, iii. p. lxxxvi. _sq._ Cherry,
_Growth of Criminal Law_, p. 33.]
{163} In competition with law, custom frequently carries the day. In
India, especially in the South, "custom has always been to a great
extent superior to the written law."[14] In the Ramnad case, the
Judicial Committee expressly declared that, "under the Hindu system of
law, clear proof of usage will outweigh the written text of the
law."[15] It was also a maxim of the Roman jurists that laws may be
abrogated by desuetude or contrary usage;[16] and in modern times the
same doctrine is acted upon in Scotland.[17] Moreover, when a custom
cannot abrogate the law, it may still have a paralysing influence on
its execution. According to the laws of European nations, a man who
has killed another in a duel is to be treated as a homicide; yet
wherever the duel exists as a custom, the law against it is
ineffective. So it is on the Continent, and so it was in England in
the eighteenth century, when a well-informed writer could affirm that
he had "not found any case of an actual execution in England in
consequence of a duel fairly fought."[18] In this instance the
ineffectiveness of the law is owing to the fact that the law has not
been able to abolish an old custom. But the superiority of custom also
shows itself in cases where the law itself is getting antiquated, and
a new custom, enforced by public opinion, springs up in opposition to
it. Thus, contrary to law and earlier usage, it is nowadays the custom
of certain European countries that a sentence of death is not carried
into execution. Even "bad habits" tend to weaken the authority of the
law. Probably the two most prominent civil vices of the Chinese are
bribery and gambling. Against both these vices their penal code speaks
with no uncertain sound; and yet, according to {164} Professor
Douglas, it is no exaggeration to say that if the law were enforced,
it would make a clean sweep of ninety-nine of every hundred officials
in the empire.[19] Other illustrations of the same principle may be
found much nearer home.
[Footnote 14: Burnell, quoted by Nelson, _View of the Hind[=u] Law_,
p. 136.]
[Footnote 15: Mayne, _Treatise on Hindu Law and Usage_, p. 41.]
[Footnote 16: _Institutiones_, i. 2. 11. _Digesta_, i. 3. 32.]
[Footnote 17: Mackenzie, _Studies in Roman Law_, p. 54.]
[Footnote 18: Quoted by Bosquett, _Treatise on Duelling_, p. 80. _Cf._
_A Short Treatise upon the Propriety and Necessity of Duelling_,
printed at Bath in 1779. In 1808, however, Major Campbell was
sentenced to death and executed for killing Captain Boyd in a duel
(Storr, 'Duel,' in _Encyclopædia Britannica_, vii. 514).]
[Footnote 19: Douglas, _Society in China_, p. 82.]
Custom has proved stronger than law and religion combined. Sir Richard
Burton writes of the Bedouins, "Though the revealed law of the Koran,
being insufficient for the Desert, is openly disregarded, the
immemorial customs of the _Kazi al-Arab_ (the Judge of the Arabs) form
a system stringent in the extreme."[20] So, also, the Turkomans are
ruled, often tyrannised over, by a mighty sovereign, invisible indeed
to themselves, but whose presence is plainly discerned in the word
_deb_--"custom," "usage." Our authority adds:--"It is very remarkable
how little the 'Deb' has suffered in its struggle of eight centuries
with Mahommedanism. Many usages, which are prohibited to the Islamite,
and which the Mollahs make the object of violent attack, exist in all
their ancient originality."[21]
[Footnote 20: Burton, _Pilgrimage to Al-Madinah and Meccah_, ii. 87.]
[Footnote 21: Vámbéry, _Travels in Central Asia_, p. 310 _sqq._]
The laws themselves, in fact, command obedience more as customs than
as laws. A rule of conduct which, from one point of view, is a law, is
in most cases, from another point of view, a custom; for, as Hegel
remarks, "the valid laws of a nation, when written and collected, do
not cease to be customs."[22] There are instances of laws that were
never published, the knowledge and administration of which belonged to
a privileged class, and which nevertheless were respected and
obeyed.[23] And among ourselves the ordinary citizen stands in no need
of studying the laws under which he lives, custom being generally the
safe guiding star of his conduct. Custom, as Bacon said, is "the
principal magistrate of man's life,"[24] or, as the ancients put it,
"the king of all men."[25]
[Footnote 22: Hegel, _Philosophie des Rechts_, § 211, p. 199.]
[Footnote 23: Rein, _Japan_, p. 314.]
[Footnote 24: Bacon, 'Essay xxxix. Of Custom and Education,' in
_Essays_, p. 372.]
[Footnote 25: Herodotus, iii. 38.]
{165} Many laws were customs before they became laws. Ancient customs
lie at the foundation of all Aryan law-books. Mr. Mayne is of opinion
that Hindu law is based upon customs which existed even prior to and
independent of Brahmanism.[26] The Greek word [Greek: no/mos] means
both custom and law, and this combination of meanings was not owing to
poverty of language, but to the deep-rooted idea of the Greek people
that law is, and ought to be, nothing more and nothing less than the
outcome of national custom.[27] A great part of the Roman law was
founded on the _mores majorum_; in the Institutes of Justinian, it is
expressly said that "long prevailing customs, being sanctioned by the
consent of those who use them, assume the nature of Laws."[28] The
case was similar with the ancient laws of the Teutons and
Irish.[29]
[Footnote 26: Mayne, _op. cit._ p. 4.]
[Footnote 27: Ziegler, _Social Ethics_, p. 30. Schmidt, _Ethik der
alten Griechen_, i. 201.]
[Footnote 28: _Institutiones_, i. 2. 9.]
[Footnote 29: Joyce, _Social History of Ancient Ireland_, i. 181.]
The transformation of customs into laws was not a mere ceremony. Law,
like custom, is a rule of conduct, but, while custom is established by
usage and obtains, in a more or less indefinite way, its binding force
from public opinion, a law originates in a definite legislative act,
being set, as Austin says, by a sovereign person, or a sovereign body
of persons, to a person or persons in a state of subjection to its
author.[30] By becoming laws, then, the customs were expressly
formulated, and were enforced by a more definite sanction. It seems
that the process in question arose both from considerations of social
utility and from a sense of justice. Cicero observes that it was for
the sake of equity that "laws were invented, which perpetually spoke
to all men with one and the same voice."[31] From these points of view
it was neither necessary nor desirable that more than a limited set of
customs should pass into laws. There are customs which are too
indefinite to assume the stereotyped shape of law.[32] There are
others, the breach {166} of which excites too little public
indignation, or which are of too little importance for the public
welfare, to be proper objects of legislation. And there are others
which may be said to exist unconsciously, that is, which are
universally observed as a matter of course, and which, never being
transgressed, are never thought of.
[Footnote 30: Austin, _Lectures on Jurisprudence_, i. 87, 181, &c.]
[Footnote 31: Cicero, _De officiis_, ii. 12.]
[Footnote 32: _Cf._ Aristotle, _Ethica Nicomachea_, v. 10. 6.]
Laws which are based on customs naturally express moral ideas
prevalent at the time when they are established. On the other hand,
though still in existence, they are not necessarily faithful
representatives of the ideas of a later age. Law may be even more
conservative than custom. Though the latter exercises a very
preservative influence on public opinion, it _eo ipso_ changes when
public opinion changes. Even among savages, in spite of their extreme
regard for the customs of their ancestors, it is quite possible for
changes to be introduced; the traditions of the Central Australian
Arunta, for instance, indicate their own recognition of the fact that
customs have varied from time to time.[33] But the legal form gives to
an ancient custom such a fixity as to enable it to survive, as a law,
the change of public opinion and the introduction of a new custom. In
all progressive societies, as Sir Henry Maine observes, social
necessities and social opinion are always more or less in advance of
law. "We may come indefinitely near to the closing of the gap between
them, but it has a perpetual tendency to re-open."[34]
[Footnote 33: Spencer and Gillen, _Native Tribes of Central
Australia_, p. 12 _sqq._]
[Footnote 34: Maine, _Ancient Law_, p. 24.]
The moral ideas of a people are less extensively represented in its
laws than in its customs. This is a corollary of the fact that there
are always a great number of customs which never become laws.
Moreover, whilst law, like custom, directly expresses only what is
obligatory, it hardly ever deals with merit, even indirectly. The
Chinese have a method of rewarding and commemorating meritorious and
virtuous subjects by erecting gates in their honour, and conferring
upon them marks of public distinction;[35] {167} and the Japanese and
Coreans award prizes in the form of money or silver cups or monumental
columns to signal exemplars of filial piety, arguing that, if the law
punishes crime, it ought also to reward virtue.[36] In Europe we have
titles and honours, pensions for distinguished service, and the like;
but the distribution of them is not regulated by law, and has often
little to do with morality.
[Footnote 35: de Groot, _Religious System of China_ (vol. ii. book) i.
769, 789 _sq._]
[Footnote 36: Griffis, _Corea_, p. 236.]
Law, like custom, only deals with overt acts, or omissions, and cares
nothing for the mental side of conduct, unless the law be
transgressed. Yet, as will be seen subsequently, though this
constitutes an essential difference between law and the enlightened
moral consciousness, it throws considerable light on the moral
judgments of the unreflecting mind.
Being a general, and at the same time a strictly defined, rule of
conduct, a law can even less than a custom make special provision for
every case so as to satisfy the demand of justice. This disadvantage,
however, was hardly felt in early periods of legislation, when little
account was taken of what was behind the overt act; and at later
stages of development, the difficulty was overcome by leaving greater
discretion to the judge. The history of legal punishments in England,
for instance, shows a change from a system which, except in cases of
misdemeanour, left no discretion at all to judges, to a system under
which unlimited discretion is left to them in all cases except those
which are still liable to capital punishment--practically, high
treason and murder.[37] The study of law, then, must for our purpose
be supplemented by the study of judicial practice.
[Footnote 37: Stephen, _History of the Criminal Law of England_, ii. 87.]
Laws which represent public opinion are no more than customs safe
exponents of the moral ideas held by particular members of the
society. But on the other hand, there are cases in which a law, unlike
a custom, may express the ideas, or simply the will, of a few, or even
of {168} a single individual, that is, of the sovereign power only. It
is obvious that laws imposed upon a barbarous people by civilised
legislators may differ widely from the people's own ideas of right and
wrong. For instance, when studying the moral sentiments of the
Teutonic peoples from their early law-books, we must carefully set
aside all elements of Roman or Christian origin. At the same time,
however, it should be remembered that the moral consciousness of a
people may gradually be brought into harmony with a law originally
foreign to it. If the law is in advance of public opinion--as Roman
law undoubtedly was in Teutonic countries--it may raise the views of
the people up to its own standard by awaking in them dormant
sentiments, or by teaching them greater discrimination in their
judgments. And, as has been already noticed, what is forbidden and
punished may, for the very reason that it is so, come to be regarded
as wrong and worthy of punishment.
Finally, a law may enjoin or forbid acts which by themselves are
regarded as indifferent from a moral point of view. This is, for
instance, the case with the laws which require marriages to be
celebrated at certain times and places only, and which forbid the
cultivation of tobacco in England. Jurists divide crimes into _mala in
se_ and _mala quia prohibita_. The former would be wrong even if they
were not prohibited by law, the latter are wrong only because they are
illegal.
A law expresses a rule of duty by making an act or omission which is
regarded as wrong a crime, that is, by forbidding it under pain of
punishment. Law does not in all cases directly threaten[38] with
punishment--I say directly, since all law is coercive, and all
coercion at some stage involves the possibility of punishment.[39]
Sanctions, or the consequences by which the sovereign political
authority threatens to enforce the laws set by it, may {169} have in
view either the indemnification of the injured party, or the suffering
of the injurer. In the latter case the sanctions are called
punishments. But, though highly important, the distinction between
indemnification and punishment is not absolute. A person who causes
harm to another would hardly have to pay damages unless some kind of
guilt or quasi-guilt were imputed to him; and, on the other hand,
punishment may actually consist in the damages he has to pay.
Moreover, the suffering involved in punishment must be regarded as a
kind of indemnification in so far as it is intended to gratify the
injured party's craving for revenge. The pleasure of vengeance, says
Bentham, "is a gain; it calls to mind Samson's riddle--it is sweet
coming out of the terrible, it is honey dropping from the lion's
mouth."[40] In cases where the injured party is allowed to decide
whether the injurer shall be punished or not, or what punishment
(within certain limits) shall be inflicted upon him, it is obvious
that punishment is largely looked upon as a means of indemnification.
However, the fact that such a privilege is granted to the injured
party indicates the existence of some degree of sympathetic resentment
in the public. Punishment, in all its forms, is essentially an
expression of indignation in the society which inflicts it.[41] Hence
it is of extreme importance for the study of moral ideas, and calls
for our careful consideration.
[Footnote 38: "Not every sovereign can make sure of enforcing his
commands; and sometimes laws are made without even any great intention
of enforcing them" (Pollock, _Essays in Jurisprudence and Ethics_,
p. 9 _sq._).]
[Footnote 39: _Cf._ Stephen, _op. cit._ i. 2.]
[Footnote 40: Bentham, _Theory of Legislation_, p. 309.]
[Footnote 41: "Die Missbilligung ist das Wesentliche aller Strafe"
(von Bar, _Die Grundlagen des Strafrechts_, p. 4). "La peine consiste
dans une réaction passionnelle d'intensité graduée" (Durkheim,
_Division du travail social_, p. 96).]
By punishment I do not understand here every suffering inflicted upon
an offender in consequence of his offence, but only such suffering as
is inflicted upon him in a definite way by, or in the name of, the
society of which he is a permanent or temporary member. This
definition holds good whatever may be the opinion about the final
object of punishment. Whether its purpose is, or is supposed to be,
either reformation, or determent, or retribution, its immediate aim is
always to cause suffering. {170} We should not call it punishment if
the reformation of the criminal were attempted, say, by means of
hypnotism.
It is a common opinion that punishment, in this sense of the word, is
a social institution of comparatively modern origin, which has sprung
from, and gradually superseded, the earlier custom of individual or
family revenge. This opinion may seem plausible to the student of
European and Eastern law, but, as we shall see, the early history of
civilised races is apt to give a somewhat erroneous idea of the
evolution of punishment. Even among savages public indignation
frequently assumes that definite shape which constitutes the
difference between punishment and mere condemnation.[42]
[Footnote 42: See Steinmetz, _Ethnologische Studien zur ersten
Entwicklung der Strafe_, ii. 327 _sqq._; Makarewicz, _Évolution de la
peine_, _passim_.]
Savage punishment sometimes simply consists in publicly putting the
offender to shame.
In Greenland the courts of justice were the public assemblies,
which at the same time supplied the national sports and
entertainments. Here "nith-songs" were used for settling all sorts of
crimes or breaches of public order or custom, with the exception of
those which could only be expiated by death; by means of cutting
capers and singing, the offender was told of his faults, and the
opposite virtues were praised to all who were present.[43] The same
institution is found, with only incidental differences, among several
other tribes within and beyond the Arctic circle.[44] And, knowing the
sensitiveness of these peoples, we may assume that the punishment in
question is by no means lenient. In Greenland "it now and then happens
that some one or other, wounded, perhaps, by a single word from one of
his kinsfolk, runs away to the mountains, and is lost for several days
at least."[45] And Adair, speaking of the public jesting by which
North American Indians used to punish young people who were guilty of
petty crimes, says that "they would sooner die by torture, than renew
their shame by repeating the actions."[46]
[Footnote 43: Rink, _Eskimo Tribes_, p. 24 _sq._ _Idem_, _Greenland_,
pp. 141, 150. Cranz, _op. cit._ i. 165 _sq._ Holm, 'Ethnologisk Skizze
af Angmagsalikerne,' in _Meddelelser om Grönland_, p. 87.]
[Footnote 44: Kane, _Arctic Explorations_, ii. 128 _sq._]
[Footnote 45: Nansen, _Eskimo Life_, p. 267 _sq._]
[Footnote 46: Adair, _History of the American Indians_, p. 429 _sq._]
{171} In other instances the community as a whole expresses its
indignation by inflicting suffering of a more material kind upon the
culprit.
In certain Australian tribes, when a native for any transgression
incurs the displeasure of his tribe, custom compels him to "stand
punishment," as it is called; that is, he stands with a shield at a
fair distance, while the whole tribe, either simultaneously or in
rapid succession, cast their spears at him. Their expertness generally
enables those who are exposed to this trial to escape without serious
injury, though instances of a fatal result occasionally occur;
however, there is a certain propriety even in this extraordinary
punishment, as the accuracy and force with which the weapons are
thrown will depend very much on the opinion entertained of the
enormity of the offence.[47] Among the North-West-Central Queensland
aborigines, though each individual, within certain limits, can do what
he pleases, "he has to reckon not only with the particular person
injured, or his relatives, but also, in some cases, with the whole
camp collectively. Thus the camp as a body, as a camp council, will
take upon itself to mete out punishment in crimes of murder, incest,
or the promiscuous use of fighting-implements within the precincts of
the camping-ground: death, and probably the digging of his own grave,
awaits the delinquent in the former case, while 'crippling,' generally
with knives, constitutes the penalty for a violation of the latter."
Again, if a woman makes herself obnoxious in the camp, especially to
the female portion of it, she is liable to be set upon and "hammered"
by her fellow-sisters collectively, the men on such occasions not
interfering.[48] Among the Bangerang tribe of Victoria, "any one who
had suffered a wrong complained of it, if at all, at night aloud to
the camp, which was silent and attentive. Then the accused was heard.
Afterwards those who chose, men or women, expressed their views on the
subject; and if general opinion pronounced the grievance a good one,
the accused accepted the penalty sanctioned by custom."[49] Among
various tribes in Western Victoria, "should a person, through bad
conduct, become a constant anxiety and trouble {172} to the tribe, a
consultation is held, and he is put to death."[50] Among the Mpongwe,
if a man murders another, he is put to death, not by the nearest of
kin, but by the whole community, being either drowned or burned
alive.[51] Among the Hudson Bay Eskimo, "when a person becomes so bad
in character that the community will no longer tolerate his presence
he is forbidden to enter the huts, partake of food, or hold any
intercourse with the rest. Nevertheless, as long as he threatens no
one's life, but little attention is paid to him. Should he be guilty
of a murder, several men watch their opportunity to surprise him and
put him to death, usually by stoning. The executioners make no
concealment of their action and are supported by public opinion in the
community."[52]
[Footnote 47: Hale, _U.S. Exploring Expedition. Vol. VI. Ethnography
and Philology_, p. 114. _Cf._ Eyre, _Journals of Expeditions of
Discovery into Central Australia_, ii. 388; Collins, _English Colony
in New South Wales_, i. 586; Brough Smyth, _Aborigines of Victoria_,
ii. 295.]
[Footnote 48: Roth, _Ethnological Studies among the North-West-Central
Queensland Aborigines_, pp. 139, 141. Curr, _The Australian Race_,
i. 61 _sq._]
[Footnote 49: Curr, _Squatting in Victoria_, p. 245.]
[Footnote 50: Dawson, _Australian Aborigines_, p. 76.]
[Footnote 51: Burton, _Two Trips to Gorilla Land_, i. 105.]
[Footnote 52: Turner, 'Ethnology of the Ungava District,' in _Ann.
Rep. Bur. Ethn._ xi. 186.]
Among various savage peoples expulsion from the tribe is the
punishment of persons whose conduct excites great public indignation,
and among others such persons are outlawed.
The Chippewyans, among whom "order is maintained in the tribe
solely by public opinion," the chief having no power to punish crimes,
occasionally expel from the society individuals whose conduct is
exceptionally bad and threatens the general peace.[53] The Salish, or
flathead Indians, sometimes punished notorious criminals by expulsion
from the tribe or band to which they belonged.[54] Sir E. F. Im Thurn,
whilst praising the Indians of Guiana for their admirable morality as
long as they remain in a state of nature, adds that there are
exceptions to the rule, and that such individuals "are soon killed or
driven out from their tribe."[55] Among the Bedouins of the Euphrates,
"in extreme cases, and as the utmost penalty of the law, the offender
is turned out of the tribe";[56] and the same is the case among the
Beni Mzab.[57] In the Scotch Highlands, even to this day, instances
are common of public opinion operating as a punishment, to the extent
of forcing individuals into exile.[58] There are cases reported from
various parts of the savage world of banishment being inflicted as a
punishment for sexual {173} offences;[59] and other instances of
expulsion are mentioned by Dr. Steinmetz.[60] In some cases, however,
expulsion is to be regarded rather as a means of ridding the community
from a pollution, than as a punishment in the proper sense of the
term.[61]
[Footnote 53: Richardson, _Arctic Searching Expedition_, ii. 26 _sq._]
[Footnote 54: Hale, _op. cit._ p. 208.]
[Footnote 55: Im Thurn, _Among the Indians of Guiana_, p. 213.]
[Footnote 56: Blunt, _Bedouin Tribes of the Euphrates_, ii. 206.]
[Footnote 57: Chavanne, _Sahara_, p. 315. Tristram, _Great Sahara_,
p. 207.]
[Footnote 58: Stewart, _Highlanders of Scotland_, p. 380.]
[Footnote 59: Westermarck, _History of Human Marriage_, p. 61
_sqq._]
[Footnote 60: Steinmetz, _op. cit._ ii. ch. 5.]
[Footnote 61: See _infra_, on Homicide.]
Nearly related to the punishment of expulsion is that of outlawry.
Von Wrede states that the Bedouins of [H.]adhramaut give a respite of
three days to the banished man, and that after the lapse of this
period every member of the tribe is allowed to kill him.[62] Among the
Wyandots the lowest grade of outlawry consists in a declaration that,
if the offender shall continue in the commission of crimes similar to
that of which he has been guilty, it will be lawful for any person to
kill him, whilst outlawry of the highest degree makes it the duty of
any member of the tribe who may meet with the offender to kill
him.[63] Among the ancient Teutons, also, outlawry was originally a
declaration of war by the commonwealth against an offending member,
and became only later on a regular means of compelling submission to
the authority of the courts.[64]
[Footnote 62: von Wrede, _Reise in [H.]adhramaut_, p. 51.]
[Footnote 63: Powell, 'Wyandot Government,' in _Ann. Rep. Bur. Ethn._
i. 68.]
[Footnote 64: Pollock and Maitland, _History of English Law before the
time of Edward I._ i. 49.]
Most generally, however, punishment is inflicted upon the culprit, not
by the whole of the community, but by some person or persons invested
with judicial authority. Indeed, it is not only civilised races who
have judges and courts of justice. Among savages and barbarians
justice is very frequently administered by a council of elders or by a
chief.[65] Even people of so low a type as the Australian aborigines
have their tribunals.
[Footnote 65: Petroff, 'Report on Alaska,' in _Tenth Census of the
United States_, p. 152 (Aleuts). Morgan, _League of the Iroquois_, p.
330. Powell, in _Ann. Rep. Bur. Ethn._ i. 63, 66 _sq._ (Wyandots).
_Idem_, 'Sociology,' in _American Anthropologist_, N.S. i. 706 (North
American tribes). Schoolcraft, _Indian Tribes of the United States_,
i. 277 (Creeks). von Martius, _Beiträge zur Ethnographie Amerika's_,
i. 88 (Brazilian Indians). Cook, _Journal of a Voyage round the
World_, p. 41 (Tahitians). Lister, in _Jour. Anthr. Inst._ xxi. 54
(Bowditch Islanders). Codrington, _Melanesians_, p. 345 (Solomon
Islanders). Hunt, in _Jour. Anthr. Inst._ xxviii. 6 (Murray
Islanders). Kohler, in _Zeitschr. f. vergl. Rechtswiss._ xiv. 448;
Senfft, in Steinmetz, _Rechtsverhältnisse_, p. 448; Kubary, 'Die
Ebongruppe im Marshall's Archipel,' in _Journal des Museum Godeffroy_,
i. 37 (Marshall Islanders). _Idem_, _Ethnographische Beiträge zur
Kenntniss der Karolinischen Inselgruppe_, p. 73 _sqq._; _Idem_, 'Die
Palau-Inseln,' in _Journal des Museum Godeffroy_, iv. 42 (Pelew
Islanders). von Kotzebue, _Voyage of Discovery_, iii. 208 (Caroline
Islanders). Worcester, _Philippine Islands_, p. 107 (Tagbanuas of
Palawan). Marsden, _History of Sumatra_, p. 217 (Rejangs). von
Brenner, _Besuch bei den Kannibalen Sumatras_, p. 211 (Bataks).
Forbes, _A Naturalist's Wanderings in the Eastern Archipelago_, p. 243
(Kubus of Sumatra). Man, _Sonthalia_, p. 88 _sq._ Cooper, _Mishmee
Hills_, p. 238. Macpherson, _Memorials of Service in India_, p. 83
(Kandhs). Stewart, in _Jour. As. Soc. Bengal_, xxiv. 609, 620 (Nagas,
Old Kukis). Dalton, _Ethnology of Bengal_, p. 45 (Kukis). Forsyth,
_Highlands of Central India_, p. 361 (Bygás). Shortt, in _Trans. Ethn.
Soc._ N.S. vii. 241 (Todas). Batchelor, _Ainu and their Folk-Lore_, p.
278; von Siebold, _Die Aino auf der Insel Yesso_, p. 34. From Africa a
great number of instances might be quoted, _e.g._:--Nachtigal, _Sahara
und Sudan_, i. 449 (Tedâ). Petherick, _Egypt, the Soudan, and Central
Africa_, p. 320 (Nouaer tribes). Beltrame, _Il Fiume Bianco_, p. 77
(Shilluk). Laing, _Travels in the Timannee, &c. Countries_, p. 365
(Soolimas). Mungo Park, _Travels in the Interior of Africa_, p. 15
_sq._ (Mandingoes). Leuschner, in Steinmetz, _Rechtsverhältnisse_, p.
22 (Bakwiri). _Ibid._ p. 47 (Banaka and Bapuku). Tellier, _ibid._ p.
175 (Kreis Kita, in the French Soudan). Bosman, _New Description of
the Coast of Guinea_, p. 331 (Negroes of Fida). Casati, _Ten Years in
Equatoria_, p. 158, 163 (Akkas, Mambettu). Stuhlmann, _Mit Emin Pascha
ins Herz von Africa_, p. 523 (A-l[=u]r). _Emin Pasha in Central
Africa_, p. 89 (Wanyoro). Baskerville, in Steinmetz, _Rechtsverhältnisse_,
p. 193 (Waganda). Beverley, _ibid._ p. 214 (Wagogo). Lang, _ibid._ p.
253 _sqq._ (Washambala). Desoignies, _ibid._ p. 279 _sq._ (Msalala).
Decle, _Three Years in Savage Africa_, pp. 71, 73, 74, 487 (Barotse,
Wakamba). Junod, _Les Ba-Ronga_, p. 155 _sq._ Burton, _Zanzibar_, ii.
94 (Wanika). Holub, _Seven Years in South Africa_, ii. 319 (Marutse).
Kohler, in _Zeitschr. f. vergl. Rechtswiss._ xiv. 316 (Herero).
Andersson, _Lake Ngami_, p. 197 (Ovambo). Rautanen, in Steinmetz,
_Rechtsverhältnisse_, p. 340 (Ondonga). Kolben, _Present State of the
Cape of Good Hope_, p. 86, 297 (Hottentots). Kohler, in _Zeitschr. f.
vergl. Rechtswiss._ xv. 333 (Bechuanas). Casalis, _Basutos_, pp. 224,
226. Maclean, _Compendium of Kafir Laws and Customs_, pp. 35, 110.
Holden, _Past and Future of the Kaffir Races_, pp. 333, 336. Shooter,
_Kafirs of Natal_, p. 99 _sq._]
{174} Speaking of the native tribes of Central Australia, Messrs.
Spencer and Gillen observe:--"Should any man break through the strict
marriage laws, it is not only an 'impersonal power' which he has to
deal with. The head men of the group or groups concerned consult
together with the elder men, and, if the offender, after long
consultation, be adjudged guilty and the determination be arrived at
that he is to be put to death--a by no means purely hypothetical
case--then the same elder men make arrangements to carry the sentence
out, and a party, which is called an _ininja_, is organised for the
purpose."[66] We hear of similar councils from various parts of the
Australian continent. In his description of the aborigines of New
South Wales, Dr. Fraser states, "The Australian council of old and
experienced men--this aboriginal senate and witenagemot--has the power
to decree punishment for tribal offences." The chiefs sit as
magistrates to decide all cases which are brought before them, such as
the divulging of sacred things, speaking to a mother-in-law, the
adultery of a wife; and there is even a {175} tribal executioner. At
the same time, many grievances are arranged without the intervention
of the chiefs; for instance, if a man has been found stealing from his
neighbour, or two men quarrel about a woman, a fight ensues, the one
or the other gets his head broken, and there the matter ends.[67] The
Narrinyeri have a judgment council of the elders of the clan, called
_tendi_, which is presided over by the chief of the clan; and when any
member of the _tendi_ dies, the surviving members select a suitable
man from the clan to succeed him. "All offenders are brought to this
tribunal for trial. In cases of the slaying by a person or persons of
one clan of the member of another clan in time of peace, the
fellow-clansmen of the murdered man will send to the friends of the
murderer and invite them to bring him to trial before the united
_tendies_. If, after full inquiry, he is found to have committed the
crime, he will be punished according to the degree of guilt."[68]
Among another Australian tribe, the Gournditch-mara, again, the
headman, whose office was hereditary, "settled all quarrels and
disputes in the tribe. When he had heard both sides, and had given his
decision in a matter, no one ever disputed it."[69]
[Footnote 66: Spencer and Gillen, _op. cit._ p. 15.]
[Footnote 67: Fraser, _Aborigines of New South Wales_, p. 39.]
[Footnote 68: Taplin, 'Narrinyeri,' in Woods, _Native Tribes of South
Australia_, p. 34 _sq._]
[Footnote 69: Fison and Howitt, _Kamilaroi and Narrinyeri_, p. 277.]
Among the Australian aborigines, then, we find cases in which
punishment is inflicted by the whole community, and other cases in
which it is inflicted by a tribunal or a chief. There can be little
doubt that the latter system has developed out of the former; there
are obvious instances of transition from the one to the other. Among
the North-West-Central Queensland natives, for instance, in cases of
major offences, such as murder, incest, or physical violence, the old
men are only said to "influence" aboriginal public opinion.[70] It is
an inconvenient, and in larger communities a difficult, procedure for
the whole group to inflict punishments in common, hence the
administration of justice naturally tends to pass into the hands of
the leading men or the chief. But the establishment of a judicial
authority within the society may also have a different origin. Very
frequently judicial organisation {176} seems to have developed, not
out of a previous system of lynch-law, but out of a previous system of
private revenge.
[Footnote 70: Roth, _op. cit._ p. 141.]
An act of individual or family revenge is by itself, of course, an
expression of private, not of public, feelings--of revenge, not of
moral indignation. But the case is different with the _custom_ of
revenge. We shall see in a following chapter that blood-revenge is
regarded not only as a right, but, very frequently, as a duty
incumbent upon the relatives of the slain person. So, also, revenge
may be deemed a duty in cases where there is no blood-guiltiness.
Among the Australian Geawe-gal tribe, for instance, the offender,
according to the magnitude of his offence, was to receive one or more
spears from men who were relatives of the deceased person; or the
injured man himself, when he had recovered strength, might discharge
the spears at the offender. And our authority adds, "Obedience to such
laws was never withheld, but would have been enforced, without doubt,
if necessary, by the assembled tribe."[71] The obligatory character of
revenge implies that its omission is disapproved of. It is of course
the man on whom the duty of vengeance is incumbent that is the
immediate object of blame, when this duty is omitted; and the blame
may partly be due to contempt, especially when there is a suspicion of
cowardice. But behind the public censure there is obviously a desire
to see the injurer suffer. Instances may be quoted in which the
society actually assists the avenger, in some way or other, in
attaining his object. Speaking of the Fuegians, M. Hyades
observes:--"Nous avons entendu parler d'individus coupables de meurtre
sur leur femme, par exemple, et qui, poursuivis par tout un groupe de
familles, finissaient, quelquefois un an ou deux après leur crime, par
tomber sous les coups des parents de la victime. Il s'agit là plutôt
d'un acte de justice que d'une satisfaction de vengeance. Nous devons
faire remarquer en outre que, dans ces cas, le meurtrier est abandonné
de tous, et qu'il ne peut se soustraire que pendant un temps {177}
relativement assez court au châtiment qui le menace."[72] Amongst the
Central Eskimo, who have "no punishment for transgressors except the
blood vengeance," a man has committed a murder or made himself odious
by other outrages, "he may be killed by any one simply as a matter of
justice. The man who intends to take revenge on him must ask his
countrymen singly if each agrees in the opinion that the offender is a
bad man deserving death. If all answer in the affirmative he may kill
the man thus condemned, and no one is allowed to revenge the
murder."[73] Among the Greenlanders, in cases of extreme atrocity, the
men of a village have been known to make common cause against a
murderer, and kill him, though it otherwise is the business of the
nearest relatives to take revenge.[74] It is also noteworthy that,
among the crimes which in savage communities are punished by the
community at large, incest is particularly prominent. The chief reason
for this I take to be the absence of an individual naturally
designated as the avenger.
[Footnote 71: Fison and Howitt, _op. cit._ p. 282.]
[Footnote 72: Hyades and Deniker, _Mission scientifique du Cap Horn_,
vii. 240 _sq._]
[Footnote 73: Boas, 'Central Eskimo,' in _Ann. Rep. Bur. Ethn._ vi. 582.]
[Footnote 74: Nansen, _Eskimo Life_, p. 163.]
Thus public indignation displays itself not only in punishment, but,
to a certain extent, in the custom of revenge. In both cases the
society desires that the offender shall suffer for his deed. Strictly
speaking, the relationship between the custom of revenge and
punishment is not, as has been often supposed, that between parent and
child. It is a collateral relationship. They have a common ancestor,
the feeling of public resentment.
But whilst public opinion demands that vengeance shall be exacted for
injuries, it is also operative in another way. Though in some cases
the resentment may seem to outsiders to be too weak or too much
checked by other impulses, it may in other cases appear unduly great.
As a matter of fact, we frequently find the practice of revenge being
regulated by a rule which requires equivalence between the injury and
the suffering inflicted in return for {178} it. Sometimes this rule
demands that only one life shall be taken for one;[75] sometimes that
a death shall be avenged on a person of the same rank, sex, or age as
the deceased;[76] sometimes that a murderer shall die in the same
manner as his victim;[77] sometimes that various kinds of injuries
shall be retaliated by the infliction of similar injuries on the
offender.[78] This strict equivalence is not characteristic of
resentment as such.[79] There is undoubtedly a certain proportion
between the pain-stimulus and the reaction; other things being equal,
resentment increases in intensity along with the pain by which it is
excited. The more a person feels offended, the greater is his desire
to retaliate by inflicting counter-pain, and the greater is the pain
which he desires to inflict. But resentment involves no accurate
balancing of suffering against suffering, hence there may be a crying
disproportion between the act of revenge and the injury evoking
it.[80] As Sir Thomas Browne observes, a revengeful mind "holds no
rule in retaliations, requiring too often a head for a tooth, and the
supreme revenge for trespasses, which a night's rest should
obliterate."[81] If, then, the rule of {179} equivalence is not
suggested by resentment itself, this rule must be due to other
factors, which intermingle with resentment, and help, with it, to
determine the action. One of these factors, I believe, is
self-regarding pride, the desire to pull down the humiliating
arrogance of the aggressor naturally suggesting the idea of paying him
back in his own coin; and it seems probable that the natural
disposition to imitate, especially in cases of sudden anger, acts in
the same direction. But besides this qualitative equivalence between
injury and retaliation, the _lex talionis_ requires, in a rough way,
quantitative equivalence, and this demand has no doubt a social
origin. If the offender is a person with whose feelings men are ready
to sympathise, their sympathy will keep the desire to see him suffer
within certain limits; and if, under ordinary circumstances, they tend
to sympathise equally with both parties, the injurer and the person
injured, and, in consequence, confer upon these equal rights, they
will demand a retaliation which is only equal in degree to the
offence. By suffering a loss the offender compensates, as it were, for
the loss which he has inflicted; and when equal regard is paid to his
feelings and to those of his victim, it is deemed just that the loss
required of him as a compensation should be equivalent to the loss for
which he compensates, anything beyond equivalence being regarded as
undeserved suffering. If this explanation is correct, the rule of
equivalence must originally have been restricted to offences within
the social group; for, according to early custom and law, only members
of the same society have equal rights. In speaking of the tit-for-tat
system prevalent among the Guiana Indians, Sir E. F. Im Thurn
expressly says, "Of course all this refers chiefly to the mutual
relations of members of the same tribe."[82] And when we find savages
acting according to the same principle in their relations to other
tribes, the reason for this may be sought partly in the strong hold
which that principle has taken of their minds, and partly in the
dangers accompanying intertribal revenge, {180} which make it
desirable to restrict it within reasonable limits.
[Footnote 75: Krause, _Tlinkit-Indianer_, p. 245 _sq._ Macfie,
_Vancouver Island and British Columbia_, p. 470. Foreman, _Philippine
Islands_, p. 213 (Negrito and Igorrote tribes in the province of La
Isabela). Low, _Sarawak_, p. 212 (Dyaks). von Langsdorf, _Voyages and
Travels_, i. 132 (Nukahivans).]
[Footnote 76: Jagor, _Travels in the Philippines_, p. 213 (Igorrotes).
Blumentritt, quoted by Spencer, _Principles of Ethics_, i. 370 _sq._
(Quianganes of Luzon). Munzinger, _Ostafrikanische Studien_, p. 243
(Marea). _Koran_, ii. 173.]
[Footnote 77: von Martius, _op. cit._ i. 129 (Brazilian Indians).
Wallace, _Travels on the Amazon_, p. 499 (Uaupés). Schoolcraft,
_Indian Tribes of the United States_, iii. 246 (Dacotahs). Steller,
_Kamtschatka_, p. 355; Hickson, _A Naturalist in North Celebes_, p.
198 (Sangirese of Manganitu). Fraser, _Journal of a Tour through Part
of the Him[=a]l[=a] Mountains_, p. 339 (Butias). Ellis, _History of
Madagascar_, i. 371. Munzinger, _op. cit._ p. 502 (Barea and Kunáma).
de Abreu, _Canary Islands_, p. 27 (aborigines of Ferro).]
[Footnote 78: Im Thurn, _op. cit._ p. 213 _sq._ (Guiana Indians).
_Glimpses of the Eastern Archipelago_, p. 86 (Bataks). Arbousset and
Daumas, _Tour to the North-East of the Colony of Good Hope_, p. 67
(Mantetis). Munzinger, _op. cit._ p. 502 (Barea and Kunáma). Post,
_Afrikanische Jurisprudenz_, p. 27 (various other African peoples), de
Abreu, _op. cit._ p. 71 (aborigines, of Gran Canaria).]
[Footnote 79: _Cf._ Tissot, _Le droit pénal_, i. 226; Steinmetz,
_Ethnol. Studien zur ersten Entwicklung der Strafe_, i. 401;
Makarewicz, _op. cit._ p. 13.]
[Footnote 80: von Martius, _op. cit._ i. 128 (Brazilian aborigines).
Calder, in _Jour. Anthr. Inst._ iii. 21 (Tasmanians). Forbes, _A
Naturalist's Wanderings in the Eastern Archipelago_, p. 473
(Timorese). Sarasin, _Forschungen auf Ceylon_, iii. 539 (Veddahs).
Jacob, _Das Leben der vorislâmischen Beduinen_, p. 144 _sq._]
[Footnote 81: Browne, _Christian Morals_, iii. 12, p. 94.]
[Footnote 82: Im Thurn, _op. cit._ p. 214.]
The regulations to which the practice of revenge is subject, help us
to understand the transition from revenge to punishment, and the
establishment of a special judicial authority. As long as retaliation
is in the hands of private individuals, there is no guarantee, on the
one hand, that the offender will have to suffer, on the other hand,
that the act of retaliation will be sufficiently discriminate.
The injured party may be too weak, or otherwise unable, to avenge
himself. His readiest course, then, is to appeal to the chief for
help. The chief, on his part, has an interest in interfering--he may
of course expect a handsome reward for his assistance,[83]--and, in so
far as the community at large wishes that the offender shall suffer,
the chief may even be bound to interfere. Thus in the Sandwich
Islands, the family or the friends of an injured person--who in cases
of assault or murder were by common consent justified in taking
revenge--used to appeal to the chief of the district or to the king,
when they were too weak to attack the offender themselves.[84] Among
the Wanyoro, according to Emin Pasha, should the murderer escape, the
nearest relatives of the murdered man apply to the chief of the tribe
to procure the punishment of the culprit.[85] The Indians of Brazil,
when offended, sometimes bring their cause before the chief; but they
do it seldom, since they consider it disgraceful for a man not to be
able to avenge himself.[86] The judicial authority granted to the
Basuto chief "also insures justice to foreigners, and to individuals
who, having no relations, are deprived of their natural defenders and
avengers."[87] In ancient Greece, in early times, special care was
taken by the State for the protection of the weak and helpless, who
otherwise had been unavenged.[88] In the Middle Ages, the {181} poor
and the weak were placed under the King's protection; the intervention
of royal justice, as Du Boys observes, "apparaissait comme un bienfait
pour les faibles et un secours pour les opprimés."[89]
[Footnote 83: Steinmetz, _Rechtsverhältnisse_, p. 311. _Cf._ Brunner,
_Deutsche Rechtsgeschichte_, i. 165.]
[Footnote 84: Ellis, _Tour through Hawaii_, p. 429.]
[Footnote 85: _Emin Pasha in Central Africa_, p. 86.]
[Footnote 86: von Martius, _op. cit._ i. 132.]
[Footnote 87: Casalis, _op. cit._ p. 226.]
[Footnote 88: Leist, _Græco-italische Rechtsgeschichte_, p. 372.]
[Footnote 89: **Du Boys, _Histoire du droit criminel de l'Espagne_,
p. 237.]
Whilst resentment on behalf of injuries inflicted upon persons who are
unable to avenge themselves has thus, to some extent, contributed
towards the establishment of a central judicial and executive
authority, the sympathy naturally felt for the object of an improper
and immoderate revenge undoubtedly tended to bring about a similar
result. The same feeling which checked indiscriminate revenge by
establishing the rule of strict equivalence, restricted it once more,
and in a more effective way, by referring the case to a judge who was
less partial, and more discriminate, than the sufferer himself or his
friends. Speaking of the feuds of the Teutons, Kemble remarks,
"Setting aside the loss to the whole community which may arise from
private feud, the moral sense of men may be shocked by its results: an
individual's own estimate of the satisfaction necessary to atone for
the injury done to him, may lead to the commission of a wrong on his
part, greater than any he hath suffered; nor can the strict rule of
'an eye for an eye, and a tooth for a tooth,' be applied where the
exaction of the penalty depends upon the measure of force between
appellant and defender."[90] In the Island of Bali the judge steps in
between the prosecutor and the person whom he pursues, "so as to
restrain the indiscriminate animosity of the one, and to determine the
criminality of the other."[91] Crawfurd, in his account of native
customs in the Malay Archipelago, says that "the law even expressly
interdicts all interference when there appears a character of fairness
in the quarrel."[92] A Karen, we are told, always thinks himself right
in taking the law into his own hands, this being the custom of the
country, and "he is never interfered with, unless he is guilty of some
{182} act contrary to Karen ideas of propriety, when the elders and
the villagers interfere and exercise a check upon him."[93] Among the
Basutos the authority of the chief is stated to be "sufficiently
respected to protect criminated persons, until their cases have been
lawfully examined."[94] Among the Californian Gallinomero the avenger
of blood has his option between money and the murderer's life; "but he
does not seem to be allowed to wreak on him a personal and
irresponsible vengeance," the chief taking the criminal and executing
the punishment.[95]
[Footnote 90: Kemble, _Saxons in England_, i. 268 _sq._]
[Footnote 91: Raffles, _History of Java_, ii. p. ccxxxvii.]
[Footnote 92: Crawfurd, _History of the Indian Archipelago_, iii. 120.]
[Footnote 93: Mason, in _Jour. Asiatic Soc. Bengal_, xxxvii. pt. li.
145. _Cf._ MacMahon, _Far Cathay and Farther India_, p. 188.]
[Footnote 94: Casalis, _op. cit._ p. 226.]
[Footnote 95: Powers, _Tribes of California_, p. 177.]
Besides the desire that the offender shall suffer and the desire that
his suffering shall correspond to his guilt, there is a third factor
of importance which has contributed to the substitution of punishment
for revenge and to the rise of a judicial organisation. For every
society it is a matter of great consequence that there should be peace
between its various members. Though the system of revenge helps to
keep down crime,[96] it also has a tendency to cause disturbance and
destruction. Any act of vengeance which goes beyond the limits fixed
by custom is apt to call forth retaliation in return. Among the
Ossetes, says Baron von Haxthausen, "if the retaliation does not
exceed the original injury the affair terminates; but if the wound
given is greater than the one received, the feud begins afresh from
the other side."[97] The custom of blood-revenge certainly does not
imply that the avenger of unjustifiable homicide may himself be a
proper object of retaliation;[98] but in the absence of a tribunal it
may be {183} no easy thing to decide the question of guilt, and,
besides, the dictate of custom may be overruled by passion. As a
matter of fact, the blood-feud often consists of a whole series of
murders, the revenge itself calling forth a new act of redress, and so
on, until the state or hostility may become more or less
permanent.[99] In the long run this will prove injurious both to the
families implicated in the feud and to society as a whole, and some
method of putting a stop to the feud will readily be adopted. One such
method is to substitute the payment of blood-money for revenge;
another is to submit the cause to an authority invested with
judicatory power. Casalis tells us that the Basutos are often heard to
say, "If we were to revenge ourselves, the town or community would
soon be dispersed"; and he adds that the instinctive fear of the
disorders that might arise from the exercise of individual law has
induced them to allow the chief of the tribe a certain right over the
person of every member of the community.[100]
[Footnote 96: Taylor, _Te Ika a Maui_, p. 96 (Maori). Im Thurn, _op.
cit._ pp. 213, 330 (Guiana Indians). Burckhardt, _Bedouins and
Wahábys_, p. 84, _sq._; Blunt, _Bedouins of the Euphrates_, ii. 207;
Layard, _Discoveries in the Ruins of Nineveh and Babylon_, p. 305
_sq._ (Bedouins). Kohl, _Reise nach Istrien_, i. 409 _sq._
(Montenegrines). Stephen, _History of the Criminal Law of England_, i.
60 (Anglo-Saxons). Nordström, _Svenska samhälls-författningens
historia_, ii. 228 (ancient Scandinavians). Steinmetz, _Ethnol.
Studien zur ersten Entwicklung der Strafe_, ii. 125 _sqq._]
[Footnote 97: von Haxthausen, _Transcaucasia_, p. 411.]
[Footnote 98: Among the aborigines of Western Victoria, when life has
been taken for life, the feud is ended (Dawson, _op. cit._ p. 70).
Among the Greenlanders, if the victim of revenge "be a notorious
offender, or hated for his bloody deeds, or if he have no relations,
the matter rests"; but more frequently the act of vengeance costs the
avenger himself his life (Cranz, _op. cit._ i. 178). Among the
Bedouins, "if the family of the man killed should in revenge kill two
of the homicide's family, the latter retaliate by the death of one. If
one only be killed, the affair rests there and all is quiet; but the
quarrel is soon revived by hatred and revenge" (Burckhardt, _Bedouins
and Wahábys_, p. 86). In his book, _Das Leben der vorislâmischen
Beduinen_, Dr. Jacob likewise observes (p. 144):--"Irrtümlich ist die
Ansicht, dass Blut immer neues Blut fordere. Was für einen Getödteten
ein Anderer erschlagen, so galt die Sache in der Regel damit für
erledigt und abgetan." _Cf._ Achelis, _Moderne Völkerkunde_, p. 407,
n. 1.]
[Footnote 99: Nelson, 'Eskimo about Bering Strait,' in _Ann. Rep. Bur.
Ethn._ xviii. 293. Miklosich. 'Blutrache bei den Slaven,' in
_Denkschriften d. kaiserl. Akademie d. Wissensch. Phil.-hist. Classe_,
Vienna, xxxvi. 132; &c.]
[Footnote 100: Casalis, _op. cit._ p. 225. _Cf._ Boyle, _Adventures
among the Dyaks of Borneo_, p. 217; Marsden, _op. cit._ p. 249 _sq._
(Rejangs).]
As may be expected, it is only by slow degrees that revenge has
yielded to punishment, and the private avenger has been succeeded by
the judge and the public executioner of his sentence. Among many
savages the chief is said to have nothing whatever to do with
jurisdiction.[101] Among {184} others he acts merely as an adviser, or
is appealed to as an arbiter;[102] or the injured party may choose
between avenging himself and appealing to the chief for redress;[103]
or the judicial power with which the chief is invested is stated to be
more nominal than real.[104] It is also interesting to note that in
several cases the injured party or the accuser acts as executioner,
but not as judge.
[Footnote 101: Keating, _Expedition to the Source of St. Peter's
River_, i. 123 (Potawatomis). Richardson, _Arctic Searching
Expedition_, ii. 27 (Chippewyans), Carver, _Travels_, p. 259
(Naudowessies). Dobrizhoffer, _Account of the Abipones_, ii. 163; &c.]
[Footnote 102: Lewis and Clarke, _Travels to the Source of the
Missouri River_, p. 306 _sq._ (Shoshones). Powers, _Tribes of
California_, p. 45 (Karok and Yurok). Dunbar, 'Pawnee Indians' in
_Magazine of American History_, iv. 261. Arbousset and Daumas, _op.
cit._ p. 67 (Mantetis). Ellis, _Yoruba-speaking Peoples of the Slave
Coast_, p. 300 (Tshi- and E[(w]e-speaking peoples of the African West
Coast). Burckhardt, _Bedouins and Wahábys_, pp. 68, 70. Blunt, _op.
cit._ ii. 232 _sq._ (Bedouins of the Euphrates). von Haxthausen,
_Transcaucasia_, p. 415 (Ossetes).]
[Footnote 103: Ellis, _Tour through Hawaii_, p. 429. Williams and
Calvert, _Fiji and the Fijians_, p. 23. Forbes, _A Naturalist's
Wanderings in the Eastern Archipelago_, p. 473 (Timorese).]
[Footnote 104: Falkner, _Description of Patagonia_, p. 123. Anderson,
_Lake Ngami_, p. 231 (Damaras).]
Thus among some Australian tribes, "a man accused of a serious
offence gets a month's citation to appear before the tribunal, on pain
of death if he disobeys. If he is found guilty of a private wrong, he
is painted white, and made to stand out at fifty paces in front of the
accuser and his friends, all fully armed. They throw at him a shower
of spears and 'bumarangs,' from which he protects himself with a light
shield."[105] Among the Aricara Indians of the Missouri, who, for the
most part, punish murder with death, the nearest relative of the
murdered man was deputed by the council to act the part of
executioner.[106] With reference to the natives of Bali, Raffles says
that "in the execution of the punishment awarded by the court there is
this peculiarity, that the aggrieved party or his friends are
appointed to inflict it."[107] In some parts of Afghanistan, "if the
offended party complains to the Sirdar, or if _he_ hears of a murder
committed, he first endeavours to bring about a compromise, by
offering the Khoon Behau, or price of blood; but if the injured party
is inexorable, the Sirdar lays the affair before the King, who orders
the Cauzy to try it; and, if the criminal is convicted, gives him up
to be executed by the relations of the deceased."[108] Among the
peoples round Lake Nyassa and Tanganyika and among the Bantu tribes
generally, "when a murderer is caught and proved guilty he is given
over {185} to the relatives of the person murdered, who have power to
dispose of him as they choose."[109] A similar practice prevails among
the Mishmis,[110] Bataks,[111] and Kamchadales.[112] It was also
recognised by early Slavonic,[113] Teutonic, and English codes.[114]
According to the provisions of a code granted so late as 1231, by the
Abbey of St. Bertin to the town of Arques, when a man was convicted of
intentional homicide, he was handed over to the family of the murdered
person, to be slain by them.[115]
[Footnote 105: Fraser, _Aborigines of New South Wales_, p. 40 _sq._]
[Footnote 106: Bradbury, _Travels in the Interior of America_, p. 168.]
[Footnote 107: Raffles, _op. cit._ ii. p. ccxxxvii.]
[Footnote 108: Elphinstone, _Kingdom of Caubul_, ii. 105 _sq._]
[Footnote 109: Macdonald, in _Jour. Anthr. Inst._ xxii. 108.]
[Footnote 110: Cooper, _Mishmee Hills_, p. 238.]
[Footnote 111: von Brenner, _op. cit._ p. 212.]
[Footnote 112: Georgi, _Russia_, iii. 137.]
[Footnote 113: Macieiowski, _Slavische Rechtsgeschichte_, ii. 127.]
[Footnote 114: Wilda, _Strafrecht der Germanen_, p. 167. _Lex Salica_,
68. _Laws of Cnut_, i. 53. _Leges Henrici I._ lxxi. 1.]
[Footnote 115: _Leges villæ de Arkes ab abbate S. Bertini concessæ_,
28 (d'Achery, _Spicilegium_, iii. 608).]
But although, in innumerable cases, punishment and judicial
organisation have succeeded a previous system of revenge, and thus are
products of social development, their existence or non-existence among
a certain people is no exact index to the general state of culture
which that people has attained. Even among low savages we have noticed
instances of punishments which are inflicted by the community as a
whole, as also by special judicial authorities. On the other hand, we
are taught by the history of European and Oriental nations, that the
system of revenge is not inconsistent with a comparatively high degree
of culture.[116] We can now see the reason for this apparent anomaly.
In a small savage community, all the members of which are closely
united with each other, an injury inflicted upon one is readily felt
by all. The case may be different in a State consisting of
loosely-connected social components, which, though forming a political
unity, have little communication between themselves, and take no
interest in each other's private dealings. And, whilst in the smaller
society public resentment is thus more easily aroused, such a society
also stands in more urgent need of internal peace.
[Footnote 116: See _infra_, on Blood-revenge.]
* * * * *
Our assumption that punishment is, in the main, an expression of
public indignation, is opposed to another theory, according to which
the chief object of punishment, not only ought to be, but actually is,
or has been, {186} to prevent crime by deterring people from
committing it. We are even told that punishment, inflicted for such a
purpose, is, largely, at the root of the moral consciousness; that
punishment is not the result of a sense of justice, but that the sense
of justice is a result of punishment; that, by being punished by the
State, certain acts gradually came to be regarded as worthy of
punishment, in other words, as morally wrong.[117]
[Footnote 117: Rée, _Ursprung der moralischen Empfindungen_, p. 45
_sqq._ _Idem_, _Entstehung des Gewissens_, p. 190 _sqq._]
There are certain facts which seem to support the supposition that
punishment has, to a large extent, been intended to act as a
deterrent. We find that among various semi-civilised and civilised
peoples the criminal law has assumed a severity which far surpasses
the rigour of the _lex talionis_.
Speaking of the Azteks, Mr. Bancroft observes that "the greater
part of their code might, like Draco's, have been written in blood--so
severe were the penalties inflicted for crimes that were comparatively
slight, and so brutal and bloody were the ways of carrying those
punishments into execution."[118] The punishment of death was
inflicted on the man who dressed himself like a woman, on the woman
who dressed herself like a man,[119] on tutors who did not give a good
account of the estates of their pupils,[120] on those who carried off,
or changed, the boundaries placed in the fields by public
authority;[121] and should an adulterer endeavour to save himself by
killing the injured husband, his fate was to be roasted alive before a
slow fire, his body being basted with salt and water that death might
not come to his relief too soon.[122] Nor did the ancient Peruvian
code economise human suffering by proportioning penalties to crimes;
the punishment most commonly prescribed by it was death.[123] The
penal code of China, though less cruel in various respects than the
European legislation of the eighteenth century, awards death for a
third and aggravated theft, for defacing the branding inflicted for
former offences,[124] and for privately casting copper coin;[125]
whilst for the commission of the most heinous crimes {187} the penalty
is "to be cut into ten thousand pieces," which appears to amount, at
least, to a license to the executioner to aggravate and prolong the
sufferings of the criminal by any species of cruelty he may think
proper to inflict.[126] In Japan, before the revolution of 1871, "the
punishments for crime had been both rigorous and cruel; death was the
usual punishment, and death accompanied by tortures was the penalty
for aggravated crimes.[127] According to the Mosaic law, death is
inflicted for such offences as breach of the Lord's day,[128] going to
wizards,[129] eating the fat of a beast of sacrifice,[130] eating
blood,[131] approaching unto a woman "as long as she is put apart for
her uncleanness,"[132] and various kinds of sexual offences.[133] The
laws of Manu provide capital punishment for those who forge royal
edicts and corrupt royal ministers;[134] for those who break into a
royal store-house, an armoury, or a temple, and those who steal
elephants, horses, or chariots;[135] for thieves who are taken with
the stolen goods and the implements of burglary;[136] for cut-purses
on the third conviction;[137] whilst a wife, who, proud of the
greatness of her relatives or her own excellence, violates the duty
which she owes to her lord, shall be devoured by dogs in a place
frequented by many, and the male offender shall be burnt on a red-hot
iron bed.[138]
[Footnote 118: Bancroft, _Native Races of the Pacific States_, ii. 454.]
[Footnote 119: Clavigero, _History of Mexico_, i. 358.]
[Footnote 120: _Ibid._ i. 359.]
[Footnote 121: _Ibid._ i. 355.]
[Footnote 122: Bancroft, _op. cit._ ii. 465 _sq._]
[Footnote 123: Garcilasso de la Vega, _First Part of the Royal
Commentaries of the Yncas_, i. 145, 151 _sq._]
[Footnote 124: Wells Williams, _Middle Kingdom_, i. 512.]
[Footnote 125: _Ta Tsing Leu Lee_, sec. ccclix. p. 397.]
[Footnote 126: _Ibid._ sec. ccliv. p. 269 n. [dagger]]
[Footnote 127: Reed, _Japan_, i. 323. Thunberg, _Travels_, iv. 65.]
[Footnote 128: _Exodus_, xxxi. 14.]
[Footnote 129: _Leviticus_, xx. 6.]
[Footnote 130: _Ibid._ vii. 25.]
[Footnote 131: _Ibid._ vii. 27.]
[Footnote 132: _Ibid._ xviii. 19.]
[Footnote 133: _Ibid._ xviii. 6 _sqq._]
[Footnote 134: _Laws of Manu_, ix. 232.]
[Footnote 135: _Ibid._ ix. 280.]
[Footnote 136: _Ibid._ ix. 270.]
[Footnote 137: _Ibid._ ix. 277.]
[Footnote 138: _Ibid._ viii. 371 _sq._]
Increasing severity has been a characteristic of European
legislation up to quite modern times. Towards the end of the
thirteenth century, the English law knows some seven crimes which it
treats as capital, namely, treason, homicide, arson, rape, robbery,
burglary, and grand larceny; but the number of capital offences grew
rapidly.[139] From the Restoration to the death of George III.--a
period of 160 years--no less than 187 such offences, wholly different
in character and degree, were added to the criminal code; and when, in
1837, the punishment of death was removed from about 200 crimes, it
was still left applicable to exactly the same offences as were capital
at the end of the thirteenth century.[140] Pocket-picking was
punishable with death until the year 1808;[141] horse-stealing,
cattle-stealing, {188} sheep-stealing, stealing from a dwelling-house,
and forgery, until 1832;[142] letter-stealing and sacrilege, until
1835;[143] rape, until 1841;[144] robbery with violence, arson of
dwelling-houses, and sodomy, until 1861.[145] And not only was human
life recklessly sacrificed, but the mode of execution was often
exceedingly cruel. In the beginning of the fifteenth century, the
_Peine forte et dure_, or pressing to death with every aggravation of
torture, was adopted as a manner of punishment suitable to cases where
the accused refused to plead.[146] Burning alive of female offenders
still occurred in England at the end of the eighteenth century,[147]
being considered by the framers of the law as a commutation of the
sentence of hanging required by decency.[148] Still more cruel was the
punishment inflicted on male traitors: they were first hanged by the
neck and cut down before life was extinct, their entrails were taken
out and burned before their face, then they were beheaded and
quartered, and the quarters were set up in diverse places.[149] This
punishment continued to exist in England as late as in the reign of
George III., and even then Sir Samuel Romilly, the great agitator
against its continuance, brought upon himself the odium of the law
officers of the Crown, who declared that he was "breaking down the
bulwarks of the Constitution."[150] Such cruelties were not peculiar
to the English. On the contrary, as Sir James Stephen observes, though
English people, as a rule, have been singularly reckless about taking
life, they have usually been averse to the infliction of death by
torture.[151] In various parts of the Continent we find such
punishments as breaking on the wheel, quartering alive, and tearing
with red-hot pincers, in use down to the end of the eighteenth
century.
[Footnote 139: Pollock and Maitland, _op. cit._ ii. 511.]
[Footnote 140: May, _Constitutional History of England_, ii. 595.
Mackenzie, _Studies in Roman Law_, p. 424 _sq._]
[Footnote 141: Pike, _History of Crime in England_, ii. 450.]
[Footnote 142: _Ibid._ ii. 451. Stephen, _History of the Criminal Law
of England_, i. 474.]
[Footnote 143: Pike, _op. cit._ ii. 451. Stephen, _op. cit._ i. 474.]
[Footnote 144: Stephen, _op. cit._ i. 475.]
[Footnote 145: _Ibid._ i. 475.]
[Footnote 146: For the manner in which this torture was inflicted, see
Andrews, _Old-Time Punishments_, p. 203 _sq._]
[Footnote 147: _Ibid._ p. 198. Stephen, _op. cit._ i. 477.]
[Footnote 148: Andrews, _op. cit._ p. 192.]
[Footnote 149: Holinshed, _Chronicles of England, &c._ i. 310. Thomas
Smith, _Commonwealth of England_, p. 198.]
[Footnote 150: Andrews, _op. cit._ p. 203. An earlier method of
punishing traitors was boiling to death, which was adopted by Henry
VIII. as a punishment for poisoners as well (Holinshed, _op. cit._
i. 311).]
[Footnote 151: Stephen, _op. cit._ i. 478. _Cf._ Thomas Smith, _op.
cit._ p. 193 _sq._]
It is interesting to compare these punishments with those practised
among savages. Wanton cruelty is not a general characteristic of their
public justice.
{189} Among several uncivilised peoples capital punishment is said
to be unknown or almost so.[152] Among others it is restricted to a
few particularly atrocious offences. Among the Greenlanders "none are
put to death but murderers, and such witches as are thought to have
killed some one by their art."[153] The Aleuts punished with death
murderers and betrayers of community secrets.[154] In Samoa and New
Guinea murder and adultery are punished capitally;[155] among the
Bataks, open robbery and murder, provided that the offender is unable
to redeem his life by a sum of money;[156] among the Kukis, only
treason or an attempt at violence on the person of the King.[157]
Among the Mishmis, adultery committed against the consent of the
husband is punished with death, but all other crimes, including
murder, are punished by fines; however if the amount is not
forthcoming the offender is cut up by the company assembled.[158] In
Kar Nicobar the only cause for a "death penalty" that Mr. Distant
could discover was madness.[159] Among the Soolimas "murder is the
only crime punishable with death."[160] Among the Congo natives "the
only capital crimes are stated to be those of poisoning and
adultery."[161] Of the kingdom of Fida Bosman writes, "Here are very
few capital crimes, which are only murthers, and committing adultery
with the King's or his great men's wives."[162] Among the Wanika two
crimes are visited with capital punishment--murder and an improper use
of sorcery;[163] among the Wagogo[164] and Washambala,[165] witchcraft
only. Among the Basutos every murderer is by law liable to death, but
the sentence is generally commuted into confiscation; an incorrigible
thief sometimes pays with his head, but is generally fined, whereas
treason and rebellion against authority are treated with more
severity.[166] Among the Kafirs, cases of assault on the persons of
wives of the chiefs, {190} and what are deemed aggravated cases of
witchcraft, are the only crimes which usually involve the punishment
of death, very summarily inflicted; whereas this punishment seldom
follows even murder, when committed without the supposed aid of
supernatural powers.[167]
[Footnote 152: von Siebold, _Ethnol. Studien über die Aino auf Yesso_,
p. 35; Batchelor, _Ainu and their Folk-Lore_, p. 284. Dalton, _op.
cit._ p. 115 (Kakhyens). Marsden, _op. cit._ p. 248 (Rejangs of
Sumatra). Riedel, _De sluik- en kroesharige rassen tusschen Selebes en
Papua_, p. 103 (Serangese). Worcester, _op. cit._ pp. 413, 492
(Mangyans and Tagbanuas). Kubary, 'Die Palau-Inseln,' in _Journal des
Museum Godeffroy_, iv. 42 (Pelew Islanders). de Abreu, _op. cit._
p. 152 (Canary Islanders). Frisch, _Die Eingeborenen Süd-Afrika's_,
p. 322 (Hottentots).]
[Footnote 153: Cranz, _op. cit._ i. 177.]
[Footnote 154: Petroff, _loc. cit._ p. 152.]
[Footnote 155: Turner, _Samoa_, p. 178. Chalmers, _Pioneering in New
Guinea_, p. 179.]
[Footnote 156: Marsden, _op. cit._ p. 389.]
[Footnote 157: Dalton, _op. cit._ p. 45. Stewart, in _Jour. As. Soc.
Bengal_, xxiv. p. 627.]
[Footnote 158: Griffith, _ibid._ vi. 332.]
[Footnote 159: Distant, in _Jour. Anthr. Inst._ iii. 6.]
[Footnote 160: Laing, _Travels_, p. 365.]
[Footnote 161: Tucker, _Expedition to Explore the River Zaire_, p. 383.]
[Footnote 162: Bosman, _op. cit._ p. 331.]
[Footnote 163: New, _op. cit._ p. 111.]
[Footnote 164: Beverley, in Steinmetz, _Rechtsverhältnisse_, p. 215.]
[Footnote 165: Lang, _ibid._ p. 259.]
[Footnote 166: Casalis, _op. cit._ p. 228.]
[Footnote 167: Maclean, _Compendium of Kafir Laws and Customs_,
p. 35 _sq._]
Nor, as it seems, is savage justice fond of torturing its victims
before they are killed. The Maoris exclaimed loudly against the
English method of executing criminals, first telling them that they
are to die, then letting them lie for days and nights in prison, and
finally leading them slowly to the gallows. "If a man commits a crime
worthy of death," they said, "we shoot him, or chop off his head; but
we do not tell him first that we are going to do so."[168] Dr.
Codrington gives the following description of the cases of burning
persons alive which have occasionally happened in Pentecost
Island:--"In fighting time there, if a great man were very angry with
the hostile party, he would burn a wounded enemy. When peace had been
made and the chiefs had ordered all to behave well that the country
might settle down in quiet, if any one committed such a crime as would
break up the peace, such as adultery, they would tie him to a tree,
heap fire-wood round him, and burn him alive, a proof to the opposite
party of their detestation of his wickedness. This was not done coolly
as a matter of course in the execution of a law, but as a horrible
thing to do, and done for the horror of it; a horror renewed in the
voice and face of the native who told me of the roaring flames and
shrieks of agony."[169] This story is not without interest when
compared with the cold-blooded burning of female criminals and women
suspected of witchcraft in Christian Europe.
[Footnote 168: Yate, _Account of New Zealand_, p. 105.]
[Footnote 169: Codrington, _op. cit._ p. 347.]
There is sufficient evidence to show that the severe punishments
adopted by peoples of a higher culture have been regarded by them as
beneficial to society. The legislators themselves often refer to the
deterrent effects of punishment.
The Peruvian Incas considered that light punishments gave
confidence to evil-doers, whilst "through their great care in
punishing a man's first delinquency, they avoided the effects of his
second and third, and of the host of others that are committed in
every commonwealth where no diligence is observed {191} to root up the
evil plant at the commencement."[170] According to the Prefatory Edict
of the Emperor Kaung-hee, published in 1679, the chief ends proposed
by the institution of punishments in the Chinese Empire "have been to
guard against violence and injury, to repress inordinate desires, and
to secure the peace and tranquillity of an honest and unoffending
community."[171] In the Laws of Manu punishment is described as a
protector of all creatures:--"If the king did not, without tiring,
inflict punishment on those worthy to be punished, the stronger would
roast the weaker, like fish on a spit; the crow would eat the
sacrificial cake and the dog would lick the sacrificial viands, and
ownership would not remain with any one, the lower ones would usurp
the place of the higher ones. The whole world is kept in order by
punishment, for a guiltless man is hard to find; through fear of
punishment the whole world yields the enjoyments which it owes."[172]
Even the gods, the Dânavas, the Gandharvas, the Râkshasas, the bird
and snake deities, give the enjoyments due from them only if they are
tormented by the fear of punishment.[173] In mediæval law-books
determent is frequently referred to as an object of punishment.[174]
And in more modern times, till the end of the eighteenth century at
least, the idea that punishment should inspire fear was ever present
to the minds of legislators.
[Footnote 170: Garcilasso de la Vega, _op. cit._ i. 151 _sq._]
[Footnote 171: _Ta Tsing Leu Lee_, p. lxvii.]
[Footnote 172: _Laws of Manu_, vii. 14, 15, 20-22, 24 _sq._]
[Footnote 173: _Ibid._ vii. 23.]
[Footnote 174: _Leges Burgundionum_, Leges Gundebati, 52: "Rectius
enim paucorum condempnatione multitudo corregitur, quam sub specie
incongruae civilitatis intromittatur occasio, quae licentiam tribuat
delinquendi." _Capitulare Aquisgranense An._ 802, 33: "Sed taliter hoc
corripiantur, ut caeteri metum habeant talia perpetrandi" (Migne,
_Patrologiæ cursus_, xcvii. 230). _Chlotar II. Edictum de Synodo
Parisiensi_, 24: "In ipsum capitali sententia judicetur, qualiter alii
non debeant similia perpetrare" (Migne, _op. cit._ lxxx. 454). For
other instances, see Brunner, _Deutsche Rechtsgeschichte_,
ii. 588, n. 6.]
The same idea is also conspicuous in the practice of punishing
criminals in public.[175] A petty thief in the pillory and a scold on
the cucking-stool were, in earlier times, spectacles familiar to
everybody, whilst persons still living remember seeing offenders
publicly whipped in the streets. "A gallows or tree with a man hanging
upon it," says Mr. Wright, "was so frequent an object in the country
that it seems to have been almost a natural ornament of a landscape,
and it is thus introduced by no {192} means uncommonly in mediæval
manuscripts."[176] In atrocious cases it was usual for the court to
direct the murderer, after execution, to be hung upon a gibbet in
chains near the place where the fact was committed, "with the
intention of thereby deterring others from capital offences"; and in
order that the body might all the longer serve this useful purpose, it
was saturated with tar before it was hung in chains.[177] The
popularity which mutilation as a punishment enjoyed during the Middle
Ages was largely due to the opinion, that "a malefactor miserably
living was a more striking example of justice than one put to death at
once."[178]
[Footnote 175: Günther, _Die Idee der Wiedervergeltung_, i. 211 _sq._
n. 31.]
[Footnote 176: Wright, _History of Domestic Manners and Sentiments in
England during the Middle Ages_, p. 346.]
[Footnote 177: Holinshed, _op. cit._ i. 311. Blackstone, _Commentaries
on the Laws of England_, iv. 201. Cox, 'Hanging in Chains,' in _The
Antiquary_, xxii. 213 _sq._]
[Footnote 178: Strutt, _View of the Manners, &c. of the Inhabitants of
England_, ii. 8.]
We shall now consider whether these facts really contradict our thesis
that punishment is essentially an expression of public indignation.
It may, first, be noticed that the punishment actually inflicted on
the criminal is in many cases much less severe than the punishment
with which the law threatens him. In China the execution of the law
is, on the whole, lenient in comparison with its literal and _prima
facie_ interpretation.[179] "Many of the laws seem designed to operate
chiefly _in terrorem_, and the penalty is placed higher than the
punishment really intended to be inflicted, to the end that the
Emperor may have scope for mercy, or, as he says, 'for leniency beyond
the bounds of the law.'"[180] In Europe, during the Middle Ages,
malefactors frequently received charters of pardon, and in later times
it became a favourite theory that it was good policy, in framing penal
statutes, to make as many offences as possible capital, and to leave
to the Crown to relax the severity of the law. In England, about the
beginning of the nineteenth century, the punishment of death was
actually inflicted in only a small proportion of the cases in {193}
which sentence was passed; indeed, "not one in twenty of the sentences
was carried into execution."[181] This discrepancy between law and
practice bears witness, not only to the extent to which the minds of
legislators were swayed by the idea of inspiring fear, but to the
limitation of determent as a penal principle. It has been observed
that the excessive severity of laws hinders their execution. "Society
revolted against barbarities which the law prescribed. Men wronged by
crimes, shrank from the shedding of blood, and forbore to prosecute:
juries forgot their oaths and acquitted prisoners, against evidence:
judges recommended the guilty to mercy."[182] Yet, in spite of all
such deductions, there can be no doubt that the hangman had plenty to
do. Hanging persons, says Mr. Andrews, was almost a daily occurrence
in the earlier years of the nineteenth century, "for forging notes,
passing forged notes, and other crimes which we now almost regard with
indifference."[183]
[Footnote 179: Staunton, in his Preface to _Ta Tsing Leu Lee_,
p. xxvii. _sq._]
[Footnote 180: Wells Williams, _op. cit._ i. 392 _sq._]
[Footnote 181: Stephen, _op. cit._ i. 471. May, _op. cit._ ii. 597.]
[Footnote 182: May, _op. cit._ ii. 597.]
[Footnote 183: Andrews, _op. cit._ p. 218. _Cf._ Olivecrona, _Om
dödsstraffet_, p. x.]
Another circumstance worth mentioning is, that in earlier times the
detection of criminals was much rarer and more uncertain than it is
now.[184] It has been argued on utilitarian grounds that, "to enable
the value of the punishment to outweigh that of the profit of the
offence, it must be increased, in point of magnitude, in proportion as
it falls short in point of certainty."[185] But the rareness of
detection would also for purely emotional reasons tend to increase the
severity of the punishment. When one criminal out of ten or twenty is
caught, the accumulated indignation of the public turns against him,
and he becomes a scapegoat for all the rest.
[Footnote 184: _Cf._ Morrison, _Crime and its Causes_, p. 175.]
[Footnote 185: Bentham, _Principles of Morals and Legislation_, p.
184. _Cf._ Paley, _Moral and Political Philosophy_, vi. 9 (_Complete
Works_, ii. 371).]
However, the chief explanation of the great severity of certain
criminal codes lies in their connection with despotism or religion or
both.[186] An act which is prohibited {194} by law may be punished,
not only on account of its intrinsic character, but for the very
reason that it is illegal. When the law is, from the outset, an
expression of popular feelings, the severity of the penalty with which
it threatens the transgressor depends, in the first place, on the
public indignation evoked by the act itself, independently of the
legal prohibition of it. But the case is different with laws
established by despotic rulers or ascribed to divine lawgivers. Such
laws have a tendency to treat criminals not only as offenders against
the individuals whom they injure or against society at large, but as
rebels against their sovereign or their god. Their disobedience to the
will of the mighty legislator incurs, or is supposed to incur, his
anger, and is, in consequence, severely resented. But however severe
they be, the punishments inflicted by the despot on disobedient
subjects are not regarded as mere outbursts of personal anger. In the
archaic State the king is an object of profound regard, and even of
religious veneration. He is looked upon as a sacred being, and his
decrees as the embodiment of divine justice. The transgression of any
law he makes is, therefore, apt to evoke a feeling of public
indignation proportionate to the punishment which he pleases to
inflict on the transgressor. Again, as to acts which are supposed to
arouse the anger of invisible powers, the people are anxious to punish
them with the utmost severity so as to prevent the divine wrath from
turning against the community itself. But the fear which, in such
cases, lies at the bottom of the punishment, is certainly combined
with genuine indignation against the offender, both because he rebels
against God and religion, and because he thereby exposes the whole
community to supernatural dangers.
[Footnote 186: This has been previously pointed out by Prof. Durkheim,
in his interesting essay, 'Deux lois de l'évolution pénale' (_L'année
sociologique_, iv. [1899-1900], p. 64 _sqq._), with which I became
acquainted only when the present chapter was already in type.
Montesquieu observes (_De l'esprit des lois_, vi. 9 [_[OE]uvres_, p.
231]), "Il serait aisé de prouver que, dans tous ou presque tous les
États d'Europe, les peines ont diminué ou augmenté à mesure qu'on
s'est plus approché ou plus éloigné de la liberté."]
{195} Various facts might be quoted in support of this explanation.
Whilst the punishments practised among the lower races generally, are
not conspicuous for their severity, there are exceptions to this rule
among peoples who are governed by despotic rulers.
Under the Ashanti code, even the most trivial offences are
punishable with death.[187] In Madagascar, also, "death was formerly
inflicted for almost every offence."[188] In Uganda the ordinary
punishments were "death by fire, being hacked to pieces by reed
splinters, fine, imprisonment in the stocks _mvuba_, or in the
**slave fork _kaligo_, also mutilation. It is most common to see
people deprived of an eye, or in some cases of both eyes; persons
lacking their ears are also frequently met with."[189] Among the
Wassukuma, whose chieftains used to have power of life and death over
their subjects, a person who was guilty of disobedience to his ruler,
or of some action which the ruler considered wicked and punishable,
was condemned to death.[190] In the Sandwich Islands, "a chief takes
the life of one of his own people for any offence he may commit, and
no one thinks he has a right to interfere."[191]
[Footnote 187: Ellis, _Tshi-speaking Peoples of the Gold Coast_, p. 166.]
[Footnote 188: Ellis, _History of Madagascar_, i. 374.]
[Footnote 189: Ashe, _Two Kings of Uganda_, p. 293. _Cf._ Wilson and
Felkin, _Uganda and the Egyptian Soudan_, i. 201.]
[Footnote 190: Kollmann, _Victoria Nyanza_, p. 431.]
[Footnote 191: Ellis, _Tour through Hawaii_, p. 431.]
In the old monarchies of America and Asia there was an obvious
connection between the punishments prescribed by their laws and the
religious-autocratic form of their governments. According to
Garcilasso de la Vega, the Peruvians--among whom the most common
punishment was death--maintained "that a culprit was not punished for
the delinquencies he had committed, but for having broken the
commandment of the Ynca, who was respected as God," and that, viewed
in this light, the slightest offence merited to be punished with
death.[192] In China the Emperor was regarded as the vicegerent of
Heaven especially chosen to govern all nations, and was supreme in
everything, holding at once the highest legislative and executive
powers, without limit or control.[193] According {196} to ancient
Japanese ideas, "the duty of a good Japanese consists in obeying the
Mikado, without questioning whether his commands are right or wrong.
The Mikado is god and vicar of all the gods, hence government and
religion are the same."[194] In Rome the criminal law, which for a
long time was characterised by great moderation,[195] gradually grew
more severe according as absolutism made progress. Sylla, the
dictator, not only put thousands of citizens to death by proscription
without any form of trial, but fixed, in the Cornelian criminal code,
for heinous offences the punishment called _aquæ et ignis
interdictio_. Under the Emperors some new and cruel capital
punishments were introduced, such as burning alive and exposing to
wild beasts; whilst at the same time offences such as driving away
horses or cattle were made capital.[196] In mediæval and modern Europe
the increase of the royal power was accompanied by increasing severity
of the penal codes. Every crime came to be regarded as a crime against
the King. Indeed, breach of the King's peace became the foundation of
the whole Criminal Law of England; the right of pardon, for instance,
as a prerogative of the Crown, took its origin in the fact that the
King was supposed to be injured by a crime, and could therefore waive
his remedy.[197] And the King was not only regarded as the fountain of
social justice, but as the earthly representative of the heavenly
lawgiver and judge.[198]
[Footnote 192: Garcilasso de la Vega, _op. cit._ i. 145.]
[Footnote 193: Wells Williams, _op. cit._ i. 393.]
[Footnote 194: Griffis, _Religions of Japan_, p. 92. _Cf._ _Idem_,
_Mikado's Empire_, p. 100.]
[Footnote 195: _Cf._ Livy, x. 9; Polybius, vi. 14; Gibbon, _History of
the Decline and Fall of the Roman Empire_, v. 318, 326.]
[Footnote 196: Mackenzie, _Studies in Roman Law_, pp. 408, 409, 414.
Gibbon, _op. cit._ v. 320. _Cf._ Mommsen, _Römisches Strafrecht_, p. 943.]
[Footnote 197: Cherry, _Growth of Criminal Law in Ancient
Communities_, pp. 68, 105.]
[Footnote 198: Henke, _Grundriss einer Geschichte des deutschen
peinlichen Rechts_, ii. 310. Abegg, _Die verschiedenen
Strafrechtstheorieen_, p. 117. Du Boys, _Histoire du droit criminel
de l'Espagne_, p. 323.]
Of the connection between punishment and the belief in supernatural
agencies many instances are found already in the savage world.[199]
The great severity with which certain {197} infractions of custom are
punished has obviously a superstitious origin. In Polynesia, according
to Ellis, "the prohibitions and requisitions of the tabu were strictly
enforced, and every breach of them punished with death, unless the
delinquents had some very powerful friends who were either priests or
chiefs.[200] Among the western tribes of Torres Straits, "death was
the penalty for infringing the rules connected with the initiation
period _i.e._, for sacrilege."[201] Among the Port Lincoln aborigines
the women and children are not allowed to see any of the initiation
ceremonies, and "any impertinent curiosity on their part is punishable
with death, according to the ancient custom."[202] Among the Masai,
who believe that the boiling of milk will cause the cows to run dry,
"any one caught doing so can only atone for the sin with a fearfully
heavy fine, or, failing that, the insult to the holy cattle will be
wiped out in his blood."[203] The penalty of death which is frequently
imposed on incest or other sexual offences is largely due to the
influence of religious or superstitious beliefs.[204] And in various
cases of sacrilege the offender is offered up as a sacrifice to the
resentful god.[205]
[Footnote 199: Steinmetz, _Ethnol. Studien zur ersten Entwicklung der
Strafe_, ii. 340 _sq._ The connection between punishment and religion
has been emphasised by Prof. Durkheim (_Division du travail social_,
p. 97 _sqq._) and M. Mauss ('La religion et les origines du droit
pénal,' in _Revue de l'histoire des religions_, vols. xxxiv. and
xxxv.). But Prof. Durkheim exaggerates the importance of this
connection by assuming (p. 97) that "le droit pénal à l'origine était
essentiellement religieux."]
[Footnote 200: Ellis, _Tour through Hawaii_, p. 394. _Cf._ Olmsted,
_Incidents of a Whaling Voyage_, p. 248 _sq._; Mauss, in _op. cit._
xxxv. 55.]
[Footnote 201: Haddon, 'Ethnography of the Western Tribes of Torres
Straits,' in _Jour. Anthr. Inst._ xix. 335.]
[Footnote 202: Schürmann, 'Aboriginal Tribes of Port Lincoln,' in
Woods, _Native Tribes of South Australia_, p. 234.]
[Footnote 203: Johnston, _Kilima-njaro Expedition_, p. 425.]
[Footnote 204: See _infra_, on Sexual Morality.]
[Footnote 205: See _infra_, on Human Sacrifice.]
According to Hebrew notions, it is man's duty to avenge offences
against God; every crime involves a breach of God's law, and is
punishable as such, and hardly any punishment is too severe to be
inflicted on the ungodly.[206] These ideas were adopted by the
Christian Church and by Christian governments.[207] The principle
{198} stated in the Laws of Cnut, that "it belongs very rightly to a
Christian king that he avenge God's anger very deeply, according as
the deed may be,"[208] was acted upon till quite modern times, and
largely contributed to the increasing severity of the penal codes. It
was therefore one of the most important steps towards a more humane
legislation when, in the eighteenth century, this principle was
superseded by the contrary doctrine, "Il faut faire honorer la
Divinité, et ne la venger jamais."[209]
[Footnote 206: _Cf._ Robertson Smith, _Religion of the Semites_,
p. 162 _sq._]
[Footnote 207: von Eicken, _Geschichte und System der mittelalterlichen
Weltanschauung_, p. 563 _sqq._ Abegg, _op. cit._ p. 111 _sq._ Wilda,
_Strafrecht der Germanen_, p. 530 _sq._ Günther, _op. cit._ ii. 12
_sqq._ Henke, _op. cit._ ii. 310 _sq._ Brunner, _op. cit._ ii. 587.]
[Footnote 208: _Laws of Cnut_, ii. 40.]
[Footnote 209: Montesquieu, _De l'esprit des lois_, xii. 4
(_[OE]uvres_, p. 282).]
From the fact, then, that crimes are punished not only as wrongs
against individuals, but as wrongs against the State, and, especially,
as wrongs against some despotic or semi-divine lawgiver, or against
the Deity, it follows that even seemingly excessive punishments may,
to a large extent, be regarded as manifestations of public resentment.
This emotion does not necessarily demand like for like. The law of
talion presupposes equality of rights; it is not applicable to
impersonal offences, nor to offences against kings or gods. And as the
demands of public resentment may exceed the _lex talionis_, so they
may on the other hand fall short of it. Moreover, though the degree of
punishment on the whole more or less faithfully represents the degree
of indignation aroused by any particular crime in comparison with
other crimes belonging to the same penal system, we must not take the
comparative severity of the criminal laws of different peoples as a
safe index to the intensity of their reprobation of crime. As we have
seen before, the strength of moral indignation cannot be absolutely
measured by the desire to cause pain to the offender. When the emotion
of resentment is sufficiently refined, the infliction of suffering is
regarded as a means rather than as an end.
By all this I certainly do not mean to deny that punishment, though in
the main an expression of public indignation, is also applied as a
means of deterring from crime. Criminal law is preventive, its object
is to forbid and {199} to warn, and it uses punishment as a threat.
But the acts which the law forbids are, as a rule, such as public
opinion condemns as wrong, and it is their wrongness that in all ages
has been regarded as the justification of the penalties to which they
are subject. It is true that there are instances in which the law
punishes acts which in themselves are not apt to evoke public
resentment, and others in which the severity of the punishment does
not exactly correspond with the resentment they evoke. The State may
have a right to sacrifice the welfare of individuals in order to
attain some desirable end. It may have a right to do so in cases where
no crime has been committed, it would therefore seem to be all the
more justified in doing so when the evil has been preceded by a
warning. And yet, in the case of punishment, it is only within narrow
limits that such a right is granted to the State. To punish a person
could not simply mean that he has to suffer for the benefit of the
society; there is always opprobrium connected with punishment. Hence
the scope which justice leaves for determent pure and simple is not
wide. Sir James Stephen observes:--"You cannot punish anything which
public opinion, as expressed in the common practice of society, does
not strenuously and unequivocally condemn. To try to do so is a sure
way to produce gross hypocrisy and furious reaction."[210] Experience
shows that the fate of all disproportionately severe laws which make
too liberal use of punishment as a deterrent is that they come to be
little followed in practice and are finally annulled. As Gibbon says,
"whenever an offence inspires less horror than the punishment awarded
to it, the rigour of penal law is obliged to give way to the common
feelings of mankind."
[Footnote 210: Stephen, _Liberty, Equality, Fraternity_, p. 159. _Cf._
Mommsen, _Römisches Strafrecht_, p. 91 _sq._]
Numerous data, to be referred to in following chapters, will show how
faithfully punishment reflects the emotion of resentment, and how
impossible it would be to explain it from considerations of social
utility without close reference {200} to the feeling of justice. Why,
for instance, should the attempt to commit a crime, when its failure
obviously depends on mere chance, be punished less severely than the
accomplished crime, if not because the indignation it arouses is less
intense? Would not the same amount of suffering be requisite to deter
a person from attempting to murder his neighbour as to deter him from
actually committing the murder? And is there any reason to suppose
that the unsuccessful offender is less dangerous to society than he
who succeeds? All the facts referring to criminal responsibility, as
we shall see, suggest resentment, not determent, as the basis of
punishment, and so does the gradation of the punishment conformably to
the magnitude of the crime.[211] According to the principle of
determent, as expressed by Anselm von Feuerbach and others, punishment
should be neither more nor less severe than is necessary for the
suppression of crime.[212] But if this rule were really acted upon,
the penalties imposed, especially on minor offences, which the law has
been utterly unable to suppress, would certainly be much less lenient
than they actually are. Moreover, if there were no intrinsic
connection between punishment and resentment, how could we explain the
predilection of early law for the principle of talion--an eye for an
eye, a tooth for a tooth, a life for a life--[213] which, as we have
seen, so frequently regulates the custom of revenge?
[Footnote 211: _Cf._ Durkheim, _Division du travail social_, p. 93 _sq._]
[Footnote 212: von Feuerbach, _Ueber die Strafe als Sicherungsmittel
vor künftigen Beleidigungen des Verbrechers_, p. 83. von Gizycki,
_Introduction to the Study of Ethics_, p. 188.]
[Footnote 213: On this subject, see Günther, _op. cit._
_passim_.]
The criminal law of a society may thus, on the whole, be taken for a
faithful exponent of moral sentiments prevalent in that society at
large. The attempt to make law independent of morality, and to allot
to it a kingdom of its own, is really, I think, only an excuse for the
moral shortcomings which it reveals if scrutinised from the standpoint
of a higher morality. Law does not show us the moral consciousness in
its refinement. But refinement {201} is a rare thing, and criminal law
is in the main on a level with the unreflecting morality of the vulgar
mind. Philosophers and theorisers on law would do better service to
humanity if they tried to persuade people not only that their moral
ideas require improvement, but that their laws, so far as possible,
ought to come up to the improved standard, than they do by wasting
their ingenuity in sophisms about the sovereignty of Law and its
independence of the realm of Justice.
CHAPTER VIII
THE GENERAL NATURE OF THE SUBJECTS OF ENLIGHTENED MORAL
JUDGMENTS
THE subjects of moral judgments call for a very comprehensive
investigation, which will occupy the main part of this work. As
already said, we shall first discuss the general nature, and
afterwards the particular branches, of those phenomena which have a
tendency to evoke moral condemnation or moral praise; and in each case
our investigation will be both historical and explanatory. The present
chapter, however, will be neither the one nor the other. It seems
desirable to examine the general nature of the subjects of moral
valuation from the standpoint of the enlightened moral consciousness
before dealing with the influence which their various elements have
come to exercise upon moral judgments in the course of evolution. By
doing this, we shall be able, from the outset, to distinguish between
elements which are hardly discernible, or separable, at the lower
stages of mental development, as also to fix the terminology which
will be used in the future discussion.
Moral judgments are commonly said to be passed upon conduct and
character. This is a convenient mode of expression, but the terms need
an explanation.
Conduct has been defined sometimes as "acts adjusted to ends,"[1]
sometimes as acts that are not only adjusted to ends, but definitely
willed.[2] The latter definition is too {203} narrow for our present
purpose, because, as will be seen, it excludes from the province of
conduct many phenomena with reference to which moral judgments are
passed. The same may be said of the former definition also, which,
moreover, is unnecessarily wide, including as it does an immense
number of phenomena with which moral judgments are never concerned.
Though no definition of conduct could be restricted to such phenomena
as actually evoke moral emotions, the term "conduct" seems,
nevertheless, to suggest at least the possibility of moral valuation,
and is therefore hardly applicable to such "acts adjusted to ends" as
are performed by obviously irresponsible beings. It may be well first
to fix the meaning of the word "act."
[Footnote 1: Spencer, _Principles of Ethics_, i. 5.]
[Footnote 2: _E.g._, Mackenzie, _Manual of Ethics_, p. 85.]
According to Bentham, acts may be distinguished as external, or acts
of the body, and internal, or acts of the mind. "Thus, to strike is an
external or exterior act: to intend to strike, an internal or interior
one."[3] But this application of the word is neither popular nor
convenient. The term "act" suggests something besides intention,
whilst, at the same time, it suggests something besides muscular
contractions. To intend to strike is no act, nor are the movements
involved in an epileptic fit acts.
[Footnote 3: Bentham, _Principles of Morals and Legislation_, p. 73.]
An act comprises an event and its immediate mental cause. The event is
generally spoken of as the outward act, but this term seems to be too
narrow, since the intentional production of a mental fact--for
instance, a sensation, or an idea, or an emotion like joy or sorrow or
anger--may be properly styled an act. The objection will perhaps be
raised that I confound acts with their consequences, and that what I
call the "event" is, as Austin maintains, nothing but bodily
movements. But Austin himself admits that he must often speak of
"acts" when he means "acts and their consequences," since "most of the
names which seem to be names of acts, are names of acts, coupled with
certain of their consequences, {204} and it is not in our power to
discard these forms of speech."[4] I regard the so-called consequences
of acts, in so far as they are intended, as acts by themselves, or as
parts of acts.
[Footnote 4: Austin, _Lectures on Jurisprudence_, i. 427, 432 _sq._]
The very expression "outward act" implies that acts also have an inner
aspect. Intention, says Butler, "is part of the action itself."[5] By
intention I understand a volition or determination to realise the idea
of a certain event; hence there can be only one intention in one act.
Certain writers distinguish between the immediate and the remote
intentions of an act. Suppose that a tyrant, when his enemy jumped
into the sea to escape him, saved his victim from drowning with a view
to inflicting upon him more exquisite tortures. The immediate
intention, it is maintained, was to save the enemy from drowning, the
remote intention was to inflict upon him tortures.[6] But I should say
that, in this case, we have to distinguish between two acts, of which
the first was a means of producing the event belonging to the second,
and that, when the former was accomplished, the latter was still only
in preparation. A distinction has, moreover, been drawn between the
direct and the indirect intention of an act:--"If a Nihilist seeks to
blow up a train containing an Emperor and others, his direct intention
may be simply the destruction of the Emperor, but indirectly also he
intends the destruction of the others who are in the train, since he
is aware that their destruction will be necessarily included along
with that of the Emperor."[7] In this case we have two intentions,
and, so far as I can see, two acts, provided that the nihilist
succeeded in carrying out his intentions, namely (1) the blowing up of
the train, and (2) the killing of the emperor; the former of these
acts does not even necessarily involve the latter. But I fail to see
that there is any intention at all to kill other {205} persons.
Professor Sidgwick maintains that it would be thought absurd to say
that, in such a case, the nihilist "did not intend" to kill them;[8]
but the reason for this is simply the vagueness of language, and a
confusion between a psychical fact and the moral estimate of that
fact. It might be absurd to bring forward the nihilist's non-intention
as an extenuation of his crime; but it would hardly be correct to say
that he intended the death of other passengers, besides that of the
emperor, when he only intended the destruction of the train, though
this intention involved an extreme disregard of the various
consequences which were likely to follow. He knowingly exposed the
passengers to great danger; but if we speak of an intention on his
part to expose them to such a danger, we regard this exposure as an
act by itself.
[Footnote 5: Butler, 'Dissertation II. Of the Nature of Virtue,' in
_Analogy of Religion, &c._ p. 336.]
[Footnote 6: Mackenzie, _op. cit._ p. 60. The example is borrowed from
Stuart Mill, _Utilitarianism_, p. 27 note.]
[Footnote 7: Mackenzie, _op. cit._ p. 61. _Cf._ Sidgwick, _Methods of
Ethics_, p. 202, n. 1.]
[Footnote 8: Sidgwick, _op. cit._ p. 202, n. 1. On the subject of
"indirect intention," _cf._ also Bentham, _op. cit._ pp. 84, 86.]
A moral judgment may refer to a mere intention, independently of its
being realised or not. Moreover, the moral judgments which we pass on
acts do not really relate to the event, but to the intention. In this
point moralists of all schools seem to agree.[9] Even Stuart Mill, who
drew so sharp a distinction between the morality of the act and the
moral worth of the agent, admits that "the morality of the action
depends entirely upon the intention."[10] The event is of moral
importance only in so far as it indicates a decision which is final.
From the moral point of view there may be a considerable difference
between a resolution to do a certain thing in a distant future and a
resolution to do it immediately. However determined a person may be to
commit a crime, or to perform a good deed, the idea of the immediacy
of the event may, in the last moment, induce him to change his mind.
"The road to hell is paved with good intentions." External events are
generally the direct causes of our moral emotions; indeed, without the
_doing_ of harm and the _doing_ of good, the moral consciousness would
never {206} have come into existence. Hence the ineradicable tendency
to pass moral judgments upon acts, even though they really relate to
the final intentions involved in acts. It would be both inconvenient
and useless to deviate, in this respect, from the established
application of terms. And no misunderstanding can arise from such
application if it be borne in mind that by an "act," as the subject of
a moral judgment, is invariably understood the event _plus_ the
intention which produced it, and that the very same moral judgment as
is passed on acts would also, on due reflection, be recognised as
valid with reference to final decisions in cases where accidental
circumstances prevented the accomplishment of the act.
[Footnote 9: Sidgwick, _op. cit._ p. 201.]
[Footnote 10: Stuart Mill, _Utilitarianism_, p. 27 note. _Cf._ James
Mill, _Fragment on Mackintosh_, p. 376.]
It is in their capacity of volitions that intentions are subjects of
moral judgments. What is perfectly independent of the will is no
proper object of moral blame or moral praise. On the other hand, any
volition may have a moral value. But, so far as I can see, there are
volitions which are not intentions. A person is morally accountable
also for his deliberate wishes, and the reason for this is that a
deliberate wish is a volition. I am aware that, by calling deliberate
wishes "volitions," I offend against the terminology generally adopted
by psychologists. However, a deliberate wish is not only from a moral
point of view--as being a proper subject of moral valuation--but
psychologically as well, so closely akin to a decision, that there
must be a common term comprising both. In the realm of conations,
deliberate wishes and decisions form together a province by
themselves. In contradistinction to mere conative impulses, they are
expressions of a person's character, of his will. A deliberate wish
may just as well as a decision represent his "true self." It has been
argued that a person may will one thing and yet wish the opposite
thing. Locke observes:--"A man whom I cannot deny, may oblige me to
use persuasions to another, which, at the same time I am speaking, I
may wish may not prevail upon him. In this case it is plain the will
and desire run counter, I will the action that {207} tends one way,
whilst my desire tends another, and that the direct contrary way."[11]
Yet in this case I either do not intend to persuade the man, but only
to discharge my office by speaking to him words which are apt to have
a persuasive effect on him; or, if I do intend to persuade him, I do
not in the same moment feel any deliberate wish to the contrary,
although I may feel such a wish before or afterwards. We cannot
simultaneously have an intention to do a thing and a deliberate wish
not to do it.
[Footnote 11: Locke, _Essay concerning Human Understanding_, ii. 21.
30 (_Philosophical Works_, p. 219).]
If it is admitted that moral judgments are passed on acts simply in
virtue of their volitional character, it seems impossible to deny that
such judgments may be passed on the motives of acts as well. By
"motive" I understand a conation which "moves" the will, in other
words, the conative cause of a volition.[12] The motive itself may be,
or may not be, a volition. If it is, it obviously falls within the
sphere of moral valuation. The motive of an act may even be an
intention, but an intention belonging to another act. When Brutus
helped to kill Cæsar in order to save his country, his intention to
save his country was the cause, and therefore the motive, of his
intention to kill Cæsar. The fact that an intention frequently acts as
a motive has led some writers to the conclusion that the motive of an
act is a part of the intention. But if the intention of an act is part
of the act itself, and a motive is the cause of an intention, the
motive of an intention cannot be a part of that intention, since a
part cannot be the cause of the whole of which it forms a part.
[Footnote 12: "The term 'motive,'" says Professor Stout (_Groundwork
of Psychology_, p. 233 _sq._) "is ambiguous. It may refer to the
various conations which come into play in the process of deliberation
and tend to influence its result. Or it may refer to the conations
which we mentally assign as the ground or reason of our decision when
it has been fully formed." Motive, in the former sense of the term, is
not implied in what I here understand by motive. On the other hand, it
should be observed that there are motives not only for decisions, but
for deliberate wishes--another circumstance which shows the affinity
between these two classes of mental facts.]
But even motives which, being neither deliberate wishes {208} nor
intentions, consist of non-volitional conations, and, therefore, are
no proper subjects of moral valuation, may nevertheless indirectly
exercise much influence on moral judgments. Suppose that a person
without permission gratifies his hunger with food which is not his
own. The motive of his act is a non-volitional conation, an appetite,
and has consequently no moral value. Yet it must be taken into account
by him who judges upon the act. Other things being equal, the person
in question is less guilty in proportion as his hunger is more
intense. The moral judgment is modified by the pressure which the
non-volitional motive exercises upon the agent's will. The same is the
case when the motive of an act is the conative element involved in an
emotion. If a person commits a certain crime under the influence of
anger, he is not so blamable as if he commits the same crime in cold
blood. Thus, also, it is more meritorious to be kind to an enemy from
a feeling of duty, than to be kind to a friend from a feeling of love.
No man deserves blame or praise for the pressure of a non-volitional
conation upon his will, unless, indeed, such a pressure is due to
choice, or unless it might have been avoided with due foresight. But a
person may deserve blame or praise for not resisting that impulse, or
for allowing it to influence his will for evil or good.
It is true that moral judgments are commonly passed on acts without
much regard being paid to their motives;[13] but the reason for this
is only the superficiality of ordinary moral estimates. Moral
indignation and moral approval are, in the first place, aroused by
conspicuous facts, and, whilst the intention of an act is expressed in
the act itself, its motive is not. But a conscientious judge cannot,
like the multitude, be content with judging of the surface only.
Stuart Mill, in his famous statement that "the motive has nothing to
do with the morality of the action, though much with the worth of the
agent,"[14] has drawn a distinction {209} between acts and agents
which is foreign to the moral consciousness. It cannot be admitted
that "he who saves a fellow creature from drowning does what is
morally right, whether his motive be duty, or the hope of being paid
for his trouble." He ought, of course, to save the other person from
drowning, but at the same time he ought to save him from a better
motive than a wish for money. It may be that "he who betrays his
friend that trusts him is guilty of a crime, even if his object be to
serve another friend to whom he is under greater obligations";[15] but
surely his guilt would be greater if he betrayed his friend, say, in
order to gain some personal advantage thereby. Intentions and motives
are subjects of moral valuation not separately, but as a unity; and
the reason for this is that moral judgments are really passed upon men
as acting or willing, not upon acts or volitions in the abstract. It
is true that our detestation of an act is not always proportionate to
our moral condemnation of the agent; people do terrible things in
ignorance. But our detestation of an act is, properly speaking, a
moral emotion only in so far as it is directed against him who
committed the act, in his capacity of a moral agent. We are struck
with horror when we hear of a wolf eating a child, but we do not
morally condemn the wolf.
[Footnote 13: _Cf._ James Mill, _Fragment on Mackintosh_, p. 376;
Sidgwick, _op. cit._ p. 364.]
[Footnote 14: Stuart Mill, _Utilitarianism_, p. 26.]
[Footnote 15: _Ibid._ p. 26.]
A volition may have reference not only to the doing of a thing, but to
the abstaining from doing a thing. It may form part not only of an
act, but of a forbearance. A forbearance is morally equivalent to an
act, and the volition involved in it is equivalent to an intention.
"Sitting still, or holding one's peace," says Locke, "when walking or
speaking are proposed, though mere forbearances, requiring as much the
determination of the will, and being as often weighty in their
consequences as the contrary actions, may, on that consideration, well
enough pass for actions too."[16] Yet it is hardly correct to call
them acts. Bentham's division of acts into acts of commission {210}
and acts of omission or forbearance[17] is not to be recommended. A
not-doing I do not call an act, and the purpose of not doing I do not
call an intention.[18] But the fact remains that a forbearance
involves a distinct volition, which, as such, may be the subject of
moral judgment no less than the intention involved in an act.
[Footnote 16: Locke, _op. cit._ ii. 21, 28 (_Philosophical Works_,
p. 218).]
[Footnote 17: Bentham, _op. cit._ p. 72.]
[Footnote 18: _Cf._ Clark, _Analysis of Criminal Liability_, p. 42.]
Willing not to do a thing must be distinguished from not willing to do
a thing; forbearances must be distinguished from omissions. An
omission--in the restricted sense of the word--is characterised by the
absence of volition. It is, as Austin puts it, "the not doing a given
act, without adverting (at the time) to the act which is not
done."[19] Now moral judgments refer not only to willing, but to
not-willing as well, not only to acts and forbearances, but to
omissions. It is curious that this important point has been so little
noticed by writers on ethics, although it constitutes a distinct and
extremely frequent element in our moral judgments. It has been argued
that what is condemned in an omission is really a volition, not the
absence of a volition; that an omission is bad, not because the person
did not do something, but because he did something else, "or was in
such a condition that he could not will, and is condemned for the acts
which brought him into that condition."[20] In the latter case, of
course, the man cannot be condemned for his omission, since he cannot
be blamed for not doing what {211} he "could not will"; but to say
that an omission is condemned only on account of the performance of
some act is undoubtedly a psychological error. If a person forgets to
discharge a certain duty incumbent on him, say, to pay a debt, he is
censured, not for anything he did, but for what he omitted to do. He
is blamed for not doing a thing which he ought to have done, because
he did not think of it; he is blamed for his forgetfulness. In other
words, his guilt lies in his negligence.
[Footnote 19: Austin, _op. cit._ i. 438.]
[Footnote 20: Alexander, _Moral Order and Progress_, p. 34 _sq._ So,
also, Professor Sidgwick maintains (_op. cit._ p. 60) that "the proper
immediate objects of moral approval or disapproval would seem to be
always the results of a man's volitions so far as they were
intended--_i.e._, represented in thought as certain or probable
consequences of such volitions," and that, in cases of carelessness,
moral blame, strictly speaking, attaches to the agent, only "in so far
as his carelessness is the result of some wilful neglect of duty." A
similar view is taken by the moral philosophy of Roman Catholicism.
(Göpfert, _Moraltheologie_, i. 113). Binding, again, assumes (_Die
Normen_, ii. 105 _sqq._) that a person may have a volition without
having an idea of what he wills, and that carelessness implies a
volition of this kind. Otherwise, he says, the will could not be held
responsible for the result. But, as we shall see immediately, the
absence of a volition may very well be attributed to a defect of the
will, and the will thus be regarded as the cause of an unintended
event. To speak of a volition or will to do a thing of which the
person who wills it has no idea seems absurd.]
Closely related to negligence is heedlessness, the difference between
them being seemingly greater than it really is. Whilst the negligent
man omits an act which he ought to have done, because he does not
think of it, the heedless man does an act from which he ought to have
forborne, because he does not consider its probable or possible
consequences.[21] In the latter case there is acting, in the former
case there is absence of acting. But in both cases the moral judgment
refers to want of attention, in other words, to not-willing. The fault
of the negligent man is that he does not think of the act which he
ought to perform, the fault of the heedless man is that he does not
think of the probable or possible consequences of the act which he
performs. In rashness, again, the party adverts to the mischief which
his act may cause, but, from insufficient advertence assumes that it
will not ensue; the fault of the rash man is partial want of
attention.[22] Negligence, heedlessness, and rashness, are all
included under the common term "carelessness."
[Footnote 21: The meaning of the word "negligence," in the common use
of language, is very indefinite. It often stands for heedlessness as
well, or for carelessness. I use it here in the sense in which it was
applied by Austin (_op. cit._ i. 439 _sq._).]
[Footnote 22: Austin, _op. cit._ i. 440 _sq._ Clark, _op. cit._, p. 101.]
Our moral judgments of blame, however, are concerned with not-willing
only in so far as this not-willing is attributed to a defect of the
will, not to the influence of intellectual or other circumstances for
which no man can be held responsible. That power in a person which we
call his "will" is regarded by us as a cause, not only of {212} such
events as are intended, but of such events as we think that the person
"could" have prevented by his will. And just as, in the case of
volitions, the guilt of the party is affected by the pressure of
non-voluntary motives, so in the case of carelessness mental facts
falling outside the sphere of the will must be closely considered by
the conscientious judge. But nothing is harder than to apply this rule
in practice.
Equally difficult is it, in many cases, to decide whether a person's
behaviour is due to want of advertence, or is combined with a
knowledge of what his behaviour implies, or of the consequences which
may result from it--to decide whether it is due to carelessness, or to
something worse than carelessness. For him who refrains from
performing an obligatory act, though adverting to it, "negligent" is
certainly too mild an epithet, and he who knows that mischief will
probably result from his deed is certainly worse than heedless. Yet
even in such cases the immediate object of blame may be the absence of
a volition--not a want of attention, but a not-willing to do, or a
not-willing to refrain from doing, an act in spite of advertence to
what the act implies or to its consequences. I may abstain from
performing an obligatory act though I think of it, and yet, at the
same time, make no resolution not to perform it. So, too, if a man is
ruining his family by his drunkenness, he may be aware that he is
doing so, and yet he may do it without any volition to that effect. In
these cases the moral blame refers neither to negligence or
heedlessness, nor to any definite volition, but to disregard of one's
duty or of the interests of one's family. At the same time, the
transition from conscious omissions into forbearances, and the
transition from not-willing to refrain from doing into willing to do,
are easy and natural; hence the distinction between willing and
not-willing may be of little or no significance from an ethical point
of view. For this reason such consequences of an act as are foreseen
as certain or probable have commonly been included under the term
"intention,"[23] {213} often as a special branch of intention--"oblique,"
or "indirect," or "virtual" intention;[24] but, as was already noticed,
this terminology is hardly appropriate. I shall call such consequences
of an act as are foreseen by the agent, and such incidents as are
known by him to be involved in his act, "the known concomitants" of
the act. When the nihilist blows up the train containing an emperor
and others, with a view to killing the emperor, the extreme danger to
which he exposes the others is a known concomitant of his act. So,
also, in most crimes, the breach of law, as distinct from the act
intended, is a known concomitant of the act, inasmuch as the criminal,
though aware that his act is illegal, does not perform it for the
purpose of violating the law. As Bacon said, "no man doth a wrong for
the wrong's sake, but thereby to purchase himself profit, or pleasure,
or honour, or the like."[25]
[Footnote 23: _Cf._ Sidgwick, _op. cit._ p. 202.]
[Footnote 24: Bentham, _op. cit._ p. 84. Austin, _op. cit._ i. 480.
Clark, _op. cit._ pp. 97, 100.]
[Footnote 25: Bacon, 'Essay IV. Of Revenge' in _Essays_, p. 45. _Cf._
Grotius, _De jus belli et pacis_, ii. 20. 29. 1: "Vi quisquam gratis
malus est."]
Absence of volitions, like volitions themselves, give rise not only to
moral blame, but to moral praise. We may, for instance, applaud a
person for abstaining from doing a thing, beneficial to himself but
harmful to others, which, in similar circumstances, would have proved
too great a temptation to any ordinary man; and it does not
necessarily lessen his merit if the opposite alternative did not even
occur to his mind, and his abstinence, therefore could not possibly be
ascribed to a volition. Very frequently moral praise refers to known
concomitants of acts rather than to the acts themselves. The merit of
saving another person's life at the risk of losing one's own, really
lies in the fact that the knowledge of the danger did not prevent the
saver from performing his act; and the merit of the charitable man
really depends on the loss which he inflicts upon himself by giving
his property to the needy. In these and analogous cases of
self-sacrifice for a good end, the merit, strictly speaking, consists
in not-willing to {214} avoid a known concomitant of a beneficial act.
But there are instances, though much less frequent, in which moral
praise is bestowed on a person for not-willing to avoid a known
concomitant which is itself beneficial. Thus it may on certain
conditions be magnanimous of a person not to refrain from doing a
thing, though he knows that his deed will benefit somebody who has
injured him, and towards whom the average man in similar circumstances
would display resentment.
All these various elements into which the subjects of moral judgments
may be resolved, are included in the term "conduct." By a man's
conduct in a certain case is understood a volition, or the absence of
a volition in him--which is often, but not always or necessarily,
expressed in an act, forbearance, or omission--viewed with reference
to all such circumstances as may influence its moral character. In
order to form an accurate idea of these circumstances, it is necessary
to consider not only the case itself, but the man's character, if by
character is understood a person's will regarded as a continuous
entity.[26] The subject of a moral judgment is, strictly speaking, a
person's will conceived as the cause either of volitions or of the
absence of volitions; and, since a man's will or character is a
continuity, it is necessary that any judgment passed upon him in a
particular case, should take notice of his will as a whole, his
character. We impute a person's acts to _him_ only in so far as we
regard them as a result or manifestation of his character, as directly
or indirectly due to his will. Hume observes:--"Actions are, by their
very nature, temporary and perishing; and where they proceed not from
some _cause_ in the character and disposition of the person who
performed them, they can neither redound to his honour, if good; nor
infamy, if evil. . . . The person is not answerable for them; and as
they proceeded {215} from nothing in him, that is durable and
constant, and leave nothing of that nature behind them, it is
impossible he can, upon their account, become the object of punishment
or vengeance."[27] There is thus an intimate connection between
character and conduct as subjects of moral valuation. When judging of
a man's conduct in a special instance, we judge of his character, and
when judging of his character, we judge of his conduct in general.
[Footnote 26: _Cf._ Alexander, _op. cit._ p. 49: "Character is simply
that of which individual pieces of conduct are the manifestation." To
the word "character" has also been given a broader meaning. According
to John Grote (_Treatise on the Moral Ideals_, p. 442), a person's
character "is his habitual way of thinking, feeling, and acting."]
[Footnote 27: Hume, _Enquiry concerning Human Understanding_, viii. 2
(_Philosophical Works_, iv. 80). _Cf._ _Idem_, _Treatise of Human
Nature_, iii. 2 (_ibid._ ii. 191). See also Schopenhauer, _Die beiden
Grundprobleme der Ethik_ (_Sämmtliche Werke_, vol. vii.), pp. 123,
124, 281.]
It will perhaps be remarked that moral judgments are passed not only
on conduct and character, but on emotions and opinions; for instance,
that resentment in many cases is deemed wrong, and love of an enemy is
deemed praiseworthy, and that no punishment has been thought too
severe for heretics and unbelievers. But even in such instances the
object of blame or praise is really the will. The person who feels
resentment is censured because his will has not given a check to that
emotion, or because the hostile attitude of mind has led up to a
definite volition. Very frequently the irascible impulse in resentment
or the friendly impulse in kindly emotion develops into a volition to
inflict an injury or to bestow a benefit on its object; and the words
resentment and love themselves are often used to denote, not mere
emotions, but states of mind characterised by genuine volitions. An
emotion, or the absence of an emotion, may also, when viewed as a
symptom, give rise to, and be the apparent subject of, a moral
judgment. We are apt to blame a person whose feelings are not affected
by the news of a misfortune which has befallen his friend, because we
regard this as a sign of an uncharitable character. We may be
mistaken, of course. The same person might have been the first to try
to prevent the misfortune if it had been in his power; but we judge
from average cases.
As for opinions and beliefs, it may be said that they involve
responsibility in so far as they are supposed to {216} depend on the
will. Generally it is not so much the opinion itself but rather the
expression, or the outward consequence, of it that calls forth moral
indignation; and in any case the blame, strictly speaking, refers
either to such acts, or to the cause of the opinion within the will.
That a certain belief, or "unbelief," is never as such a proper object
of censure is recognised both by Catholic and Protestant theology.
Thomas Aquinas points out that the _sin_ of unbelief consists in
"contrary opposition to the faith, whereby one stands out against the
hearing of the faith, or even despises faith," and that, though such
unbelief itself is in the intellect, the cause of it is in the will.
And he adds that in those who have heard nothing of the faith,
unbelief has not the character of a sin, "but rather of a penalty,
inasmuch as such ignorance of divine things is a consequence of the
sin of our first parent."[28] Dr. Wardlaw likewise observes:--"The
Bible condemns no man for not knowing what he never heard of, or for
not believing what he could not know. . . . Ignorance is criminal only
when it arises from wilful inattention, or from aversion of heart to
truth. Unbelief involves guilt, when it is the effect and
manifestation of the same aversion--of a want of will to that which is
right and good."[29] To shut one's eyes to truth may be a heinous
wrong, but nobody is blamable for seeing nothing with his eyes
shut.
[Footnote 28: Thomas Aquinas, _Summa Theologica_, ii.-ii. 10. 1 _sq._]
[Footnote 29: Wardlaw, _Sermons on Man's Accountableness for his
Belief, &c._ p. 38.]
After these preliminary remarks, which refer to the scrutinising and
enlightened moral consciousness, we shall proceed to discuss in
detail, and from an evolutionary point of view, the various elements
of which the subjects of moral judgments consist.
CHAPTER IX
THE WILL AS THE SUBJECT OF MORAL JUDGMENT AND THE INFLUENCE OF
EXTERNAL EVENTS
HOWEVER obvious it may be to the reflecting moral consciousness that
the only proper object of moral blame and praise is the will, it would
be a hasty conclusion to assume that moral judgments always and
necessarily relate to the will. There are numerous facts which tend to
show that such judgments are largely influenced by external events
involved in, or resulting from, the conduct of men.
Some peoples are said to make no distinction between intentional and
accidental injuries. Most statements to this effect refer to revenge
or compensation.
Von Martius states that, among the Arawaks, "the blood-revenge is
so blind and is practised so extensively, that many times an
accidental death leads to the destruction of whole families, both the
family of him who killed and of the family of the victim";[1] and,
according to Sir E. F. Im Thurn, the smallest injury done by one
Guiana Indian to another, even if unintentional, must be atoned by the
suffering of a similar injury.[2] Adair, in his work on the North
American Indians, says that they pursued the law of retaliation with
such a fixed eagerness, that formerly if a little boy shooting birds
in the high and thick cornfields unfortunately chanced slightly to
wound another with his childish arrow, "the young vindictive fox was
excited by custom to watch his ways with the utmost earnestness, till
the wound was returned in as equal a manner {218} as could be
expected."[3] Among the Ondonga in South Africa,[4] the Nissan
Islanders in the Bismarck Archipelago,[5] and certain Marshall
Islanders,[6] the custom of blood-revenge makes no distinction between
wilful and accidental homicide. Among the Kasias "destruction of human
life, whether by accident or design, in open war or secret, is always
the cause of feud among the relations of the parties."[7] It seems
that the blood-revenge of the early Greeks was equally indiscriminate.[8]
As for the blood-feuds of the ancient Teutons, Wilda maintains that,
even in prehistoric times, it was hardly conformable to good custom to
kill the involuntary manslayer;[9] but there is every reason to
believe that custom made no protest against it. According to the myth
of Balder, accident was no excuse for shedding blood. Loke gives to
Hödur the mistletoe twig, and asks him to do like the rest of the
gods, and show Balder honour, by shooting at him with the twig. Hödur
throws the mistletoe at Balder, and kills him, not knowing its power.
According to our notions, blind Hödur is perfectly innocent of his
brother's death; yet the avenger, Vali, by the usual Germanic vow,
neither washes nor combs his hair till he has killed Hödur. It is also
instructive to note that the narrator of this story finds himself
called upon to explain, and, in a manner, to excuse the Asas for not
punishing Hödur at once, the place where they were assembled being a
sacred place.[10] We find survivals of a similar view in laws of a
comparatively recent date. The earliest of the Norman customals
declares quite plainly that the man who kills his lord by misadventure
must die.[11] And, according to a passage in 'Leges Henrici I.,' in
case A by mischance falls from a tree upon B and kills him, then, if
B's kinsman must needs have vengeance, he may climb a tree and fall
upon A.[12] This provision has been justly represented as a curious
instance of a growing appreciation of moral differences, which has not
dared to abolish, but has tried to circumvent the ancient
rule.[13]
[Footnote 1: von Martius, _Beiträge zür Ethnographie Amerika's_,
i. 693 _sq._]
[Footnote 2: Im Thurn, _Among the Indians of Guiana_, p. 214.]
[Footnote 3: Adair, _History of the American Indians_, p. 150.]
[Footnote 4: Rautanen, in Steinmetz, _Rechtsverhältnisse_, p. 341.]
[Footnote 5: Sorge, _ibid._ p. 418.]
[Footnote 6: Kohler, in _Zeitschr. f. vergl. Rechtswiss._ xiv. 443.
See also _Idem_, _Shakespeare vor dem Forum der Jurisprudenz_, p.
188.]
[Footnote 7: Fisher, in _Jour. Asiatic Soc. Bengal_, ix. 835.]
[Footnote 8: Rohde, _Psyche_, pp. 237, 238, 242.]
[Footnote 9: Wilda, _Strafrecht der Germanen_, p. 174.]
[Footnote 10: _Snorri Sturluson_, 'Gylfaginning,' 50, in _Edda_, p.
59. _Cf._ Brunner, _Forschungen zur Geschichte des deutschen und
französischen Rechtes_, p. 489.]
[Footnote 11: Pollock and Maitland, _History of English Law before the
Time of Edward I._ ii. 482.]
[Footnote 12: _Leges Henrici I._ xc. 7.]
[Footnote 13: Pollock and Maitland, _op. cit._ ii. 471.]
{219} Among the Kandhs "similar compensation is made in all cases
both of excusable homicide and of manslaughter."[14] And the same is
said to be the case among various other savages or barbarians.[15]
[Footnote 14: Macpherson, _Memorials of Service in India_, p. 82.]
[Footnote 15: Crawfurd, _History of the Indian Archipelago_, iii. 123.
Ellis, _E[(w]e-speaking Peoples of the Slave Coast_, p. 223.
Munzinger, _Ostafrikanische Studien_, p. 502 (Barea and Kunáma).]
However, this want of discrimination between intentional and
accidental injuries is not restricted to cases of revenge or
compensation. Early punishment is sometimes equally indiscriminate.
Among the Káfirs of the Hindu-Kush, "murder, justifiable homicide,
and killing by inadvertence in a quarrel, are all classed as one
crime, and punished in the same way. Extenuating circumstances are
never considered. The single question asked is, Did the man kill the
other? The penalty is an extremely heavy blood-ransom to the family of
the slain man, or perpetual exile combined with spoliation of the
criminal's property."[16] Parkyns tells us the following story from
Abyssinia:--A boy who had climbed a tree, happened to fall down right
on the head of his little comrade standing below. The comrade died
immediately, and the unlucky climber was in consequence sentenced to
be killed in the same way as he had killed the other boy, that is, the
dead boy's brother should climb the tree in his turn, and tumble down
on the other's head till he killed him.[17] The Cameroon tribes do not
recognise the circumstance of accidental death:--"He who kills another
accidentally must die. Then, they say, the friends of each are equal
mourners."[18] Among the negroes of Accra, according to Monrad,
accidental homicide is punished as severely as intentional.[19]
[Footnote 16: Scott Robertson, _Káfirs of the Hindu-Kush_, p. 440.]
[Footnote 17: Parkyns, _Life in Abyssinia_, ii. 236 _sqq._]
[Footnote 18: Richardson, 'Observations among the Cameroon Tribes of
West Central Africa,' in _Memoirs of the International Congress of
Anthropology_, Chicago, p. 203. See also Leuschner, in Steinmetz,
_Rechtsverhältnisse_, p. 24 (Bakwiri); _ibid._ p. 51 (Banaka and
Bapuku).]
[Footnote 19: Monrad, _Guinea-Kysten og dens Indbyggere_, p. 88.]
Yet it would obviously be a mistake to suppose that, at early stages
of civilisation, people generally look only at the harm done, and not
in the least at the will of him who did it. Even in the system of
private redress we often {220} find a distinction made between
intentional or foreseen injuries on the one hand, and unintentional
and unforeseen injuries on the other. In many instances, whilst
blood-revenge is taken for voluntary homicide, compensation is
accepted for accidental infliction of death.[20] And sometimes the
chief or the State interferes on behalf of the involuntary manslayer,
protecting him from the persecutions of the dead man's family.
[Footnote 20: _Cf._ Kohler, _Shakespeare vor dem Forum der
Jurisprudenz_, p. 188, n. 1.]
Among the African Wapokomo intention makes a difference in the
revenge.[21] Among the Papuans of the Tami Islands blood-revenge is
common in the case of murder, but is not exacted in the case of
accidental homicide; the involuntary manslayer has only to pay a
compensation and to leave the community for a certain length of
time.[22] Among the Namaqua Hottentots custom demands that
compensation should be accepted for unintentional killing.[23] We meet
with the same principle among the Albanians[24] and the Slavs,[25] in
the past history of other European peoples,[26] in ancient
Yucatan,[27] and in the religious law of Muhammedanism.[28] Among the
Kabyles of Algeria, "si les m[oe]urs n'autorisent jamais la famille
victime d'un homicide volontaire à amnistier un crime, elles lui
permettent presque toujours de pardonner la mort qui ne résulte que
d'une maladresse ou d'un accident." They have a special ceremony by
which the family of the deceased grant pardon to the involuntary
manslayer, but the pardon must be given unanimously. The manslayer
then becomes a member of the _kharuba_, or _gens_, of the
deceased.[29] Among the Omahas, "when one man killed another
accidentally, he was rescued by the interposition of the chiefs, and
subsequently was punished as if he were a murderer, but only for a
year or two."[30] The {221} ancient law of the Hebrews, which
recognised the right and duty of private revenge in cases of
intentional homicide, laid down special rules for homicide by
misfortune. He who killed another unawares and unwittingly might flee
to a city of refuge, where he was protected against the avenger of
blood as long as he remained there.[31] In ancient Rome the
involuntary manslayer seems to have been exposed to the blood-feud
until a law attributed to Numa ordained that he should atone for the
deed by providing a ram to be sacrificed in his place.[32]
[Footnote 21: Kraft, in Steinmetz, _Rechtsverhältnisse_, p. 292.]
[Footnote 22: Bamler, quoted by Kohler, in _Zeitschr. f. vergl.
Rechtswiss._ xiv. 380.]
[Footnote 23: Fritsch, _Die Eingeborenen Süd-Afrika's_, p. 363.]
[Footnote 24: Gop[vc]evi['c], _Oberalbanien und seine Liga_, p. 327.]
[Footnote 25: Miklosich, 'Blutrache bei den Slaven,' in _Denkschriften
der kaiserl. Akademie der Wissensch. Philos.-histor. Classe_, Vienna,
xxxvi. 131.]
[Footnote 26: Leist, _Græco-italische Rechtsgeschichte_, p. 324.
_Ancient Laws of Ireland_, iii. p. cxxiv. For the ancient Teutons, see
_infra_, p. 226.]
[Footnote 27: de Landa, _Relacion de las cosas de Yucatan_, p. 134.]
[Footnote 28: _Koran_, iv. 94. _Cf._ Sachau, _Muhammedanisches Recht
nach Schafiitischer Lehre_, p. 761 _sq._]
[Footnote 29: Hanoteau and Letourneux, _La Kabylie_, iii. 68 _sq._]
[Footnote 30: Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._
iii. 370.]
[Footnote 31: _Deuteronomy_, iv. 42. _Numbers_, xxxv. 11 _sqq._
_Joshua_, xx. 3 _sqq._]
[Footnote 32: Servius, _In Virgilii Bucolica_, 43. _Cf._ von Jhering,
_Das Schuldmoment im römischen Privatrecht_, p. 11.]
Among some peoples who accept compensation even for wilful murder, the
blood-price is lower if life is taken unintentionally.[33]
[Footnote 33: Beverley, in Steinmetz, _Rechtsverhältnisse_, p. 215
(Wagogo). Dareste, _Nouvelles études d'histoire du droit_, p. 237
(Swanetians of the Caucasus).]
According to Bowdich, "a person accidentally killing another in
Ahanta, pays 5 oz. of gold to the family, and defrays the burial
customs. In the case of murder, it is 20 oz. of gold and a slave; or,
he and his family become the slaves of the family of the
deceased."[34] Ancient Irish law imposed an Eric fine for accidental
or unintentional homicide, to be paid to the relatives of the dead
man, whilst a double fine was due for homicide where anger was shown,
_i.e._, where probably there was what we should call "malice."[35]
[Footnote 34: Bowdich, _Mission from Cape Castle to Ashantee_, p. 258,
n. [double dagger].]
[Footnote 35: Cherry, _Growth of Criminal Law in Ancient Communities_,
p. 22.]
In the punishments inflicted by many savages, a similar distinction is
made between intentional and accidental harm, although, at the same
time, some degree of guilt is frequently imputed to persons who, in
our opinion, are perfectly innocent.
Speaking of the West Australian aborigines, Sir G. Grey
observes:--"If a native is slain by another wilfully, they kill the
murderer, or any of his friends they can lay hands on. If a native
kills another accidentally, he is punished according to the
circumstances of the case." And the punishment may be severe enough.
"For instance, if, in inflicting spear wounds as a punishment for some
offence, one of the agents should spear the culprit through the thigh,
and accidentally so injure the {222} femoral artery that he dies, the
man who did so would have to submit to be speared through both thighs
himself."[36] In New Guinea, according to Dr. Chalmers, murder is
punished capitally, whereas a death caused by accident is expiated by
a fine.[37] Among the Mpongwe, "except in the case of a chief or a
very rich man, little or no difference is made between wilful murder,
justifiable homicide, and accidental manslaughter."[38] Kafir law
seems to demand no compensation for what is clearly proved to have
been a strictly accidental injury to property, but the case is
different in regard to accidental injuries to persons, if the injury
be of a serious nature. Thus "it seems to make little or no
distinction between wilful murder and any other kind of homicide;
unless it be, perhaps, that in purely accidental homicide the full
amount of the fine may not be so rigidly insisted upon."[39] Among the
A-l[=u]r, in the case of accidental injuries, a compensation is paid
to the injured party and a fine to the chief. Whilst the strict
punishment for murder is death, the culprit is allowed to redeem
himself if it cannot be proved that he committed the deed
wilfully.[40] The Masai regard accidental homicide, or injury, as "the
will of N'gai," "the Unknown," and "the elders arrange what
compensation shall be paid to the injured person (if a male) or to the
nearest relative. If a woman is killed by accident, all the killer's
property becomes the property of the nearest relative."[41] The
Eastern Central Africans, according to the Rev. D. Macdonald, "know
the difference between an injury of accident and one of
intention."[42] And so do the natives of Nossi-Bé and Mayotte, near
Madagascar.[43]
[Footnote 36: Grey, _Journals of Expeditions of Discovery in
North-West and Western Australia_, ii. 238 _sq._]
[Footnote 37: Chalmers, _Pioneering in New Guinea_, p. 179.]
[Footnote 38: Burton, _Two Trips to Gorilla Land_, i. 105.]
[Footnote 39: Maclean, _Compendium of Kafir Laws and Customs_,
pp. 113, 67, 60.]
[Footnote 40: Stuhlmann, _Mit Emin Pascha ins Herz von Afrika_, p. 524.]
[Footnote 41: Hinde, _The Last of the Masai_, p. 108.]
[Footnote 42: Macdonald, _Africana_, i. 11.]
[Footnote 43: Walter, in Steinmetz, _Rechtsverhältnisse_, p. 393.]
Nay, there are instances of uncivilised peoples who entirely excuse,
or do not punish, a person for an injury which he has inflicted by
mere accident, even though they may compel him to pay damages for
involuntary destruction of property.
We are told that the Pennsylvania Indians "judge with calmness on
all occasions, and decide with precision, or endeavour {223} to do so,
between an accident and a wilful act; the first, they say, they are
all liable to commit, and therefore it ought not to be noticed, or
punished; the second being a wilful or premeditated act, committed
with a bad design, ought on the contrary to receive due
punishment,"[44] Among some of the Marshall Islanders unintentional
wrongs are punished only if the injured party be a person of note, for
instance, a chief, or a member of a chief's family.[45] Among the
Papuans of the Tami Islands, "accidental injuries are not punished.
Generally the culprit confesses his deed, and makes an apology. If he
has caused the destruction of some valuable, he has to repair the
loss."[46] Among the Wadshagga there is no punishment for an
accidental hurt; but if anybody's property has been damaged thereby, a
compensation amounting to one half of the damage may be required.[47]
The Hottentots do not nowadays punish accidents, even in the case of
homicide.[48] Among the Washambala a person is held responsible only
for such injuries as he has inflicted intentionally or caused by
carelessness.[49] In some parts of West Africa, if a man, woman, or
child, not knowing what he or she does, damages the property of
another person, "native justice requires, and contains in itself, that
if it can be proved the act was committed in ignorance that was not a
culpable ignorance, the doer cannot be punished according to the
law."[50]
[Footnote 44: Buchanan, _North American Indians_, p. 160 _sq._]
[Footnote 45: Kohler, in _Zeitschr. f. vergl. Rechtswiss._ xiv. 448.]
[Footnote 46: Bamler, quoted by Kohler, _ibid._ xiv. 381.]
[Footnote 47: Merker, quoted by Kohler, _ibid._ xv. 64.]
[Footnote 48: Kohler, _ibid._ xv. 353.]
[Footnote 49: Lang, in Steinmetz, _Rechtsverhältnisse_, p. 261.]
[Footnote 50: Miss Kingsley, in her Introduction to Dennett's _Notes
on the Folklore of the Fjort_, p. xi.]
These instances of occasional discrimination in savage justice are
particularly interesting in the face of the fact that, even among
peoples who have attained a higher degree of culture, innocent persons
are often punished by law for bringing about events without any fault
of theirs.
It is a principle of the Chinese law that "all persons who kill or
wound others purely by accident, shall be permitted to redeem
themselves from the punishment of killing or wounding in an affray, by
the payment in each case of a fine to the family of the person
deceased or wounded."[51] But there are exceptions to this rule. Any
{224} person who kills his father, mother, paternal grandfather or
grandmother, and any wife who kills her husband's father, mother,
paternal grandfather or grandmother, "purely by accident, shall still
be punished with 100 blows and perpetual banishment to the distance of
3,000 _lee_. In the case of wounding purely by accident, the persons
convicted thereof shall be punished with 100 blows and three years'
banishment: in these cases, moreover, the parties shall not be
permitted to redeem themselves from punishment by the payment of a
fine, as usual in the ordinary cases of accident."[52] Again, slaves
who accidentally kill their masters, "shall suffer death, by being
strangled at the usual period."[53] It is also a characteristic
provision of the Chinese law that an act of grace is necessary for
relieving all those from punishment who have offended accidentally and
inadvertently.[54]
[Footnote 51: _Ta Tsing Leu Lee_, sec. ccxcii. p. 314.]
[Footnote 52: _Ibid._ sec. cccxix. p. 347. _Cf._ _ibid._ sec. ccxcii.
p. 314.]
[Footnote 53: _Ibid._ sec. cccxiv. p. 338.]
[Footnote 54: _Ibid._ sec. xvi. p. 18.]
It is said in the Laws of [Hv]ammurabi:--"If a man has struck a man in
a quarrel, and has caused him a wound, that man shall swear 'I did not
strike him knowing' and shall answer for the doctor. If he has died of
his blows, he shall swear, and if he be of gentle birth he shall pay
half a mina of silver. If he be the son of a poor man, he shall pay
one-third of a mina of silver."[55]
[Footnote 55: _Laws of [Hv]ammurabi_, 206 _sqq._]
It has been observed that the purpose of the Hebrew law of sanctuary
was not merely to protect the involuntary manslayer from
blood-revenge, but at the same time to punish him and compel him to
expiate the blood he has shed.[56] If he left the city of refuge
before the death of the high-priest, the avenger of blood might kill
him without incurring blood-guiltiness; and he was not permitted to
purchase an earlier return to his possession with a money
ransom.[57]
[Footnote 56: Goitein, _Das Vergeltungsprincip im biblischen und
talmudischen Strafrecht_, p. 25 _sq._ Keil, _Manual of Biblical
Archæology_, ii. 371.]
[Footnote 57: _Numbers_, xxxv. 26 _sqq._]
According to the Laws of Manu, "he who damages the {225} goods of
another, be it intentionally or unintentionally, shall give
satisfaction to the owner and pay to the king a fine equal to the
damage";[58] and various rites of expiation are prescribed for a
person who kills a Brâhmana by accident,[59] whereas the intentional
slaying of a Brâhmana is inexpiable.[60]
[Footnote 58: _Laws of Manu_, viii. 288.]
[Footnote 59: _Ibid._ xi. 73 _sqq._]
[Footnote 60: _Ibid._ xi. 90. _Gautama_, xxi. 7. According to some
authorities, however, the wilful slaying of a Brâhmana was expiable by
a penance of greater severity (Bühler's note, in his translation of
the 'Laws of Manu,' _Sacred Books of the East_, xxv. 449).]
Demosthenes praises the Athenian law for making the penalty of
unintentional homicide less than that of intentional. The punishment
for murder was death, from which, however, before the sentence was
passed, the murderer was at liberty to escape by withdrawing from his
country and remaining in perpetual exile. But he who was convicted of
involuntary homicide had to leave the country only for some shorter
time, until he had appeased the relatives of the deceased.[61] As will
be seen subsequently, the real object of this law was not so much to
punish the involuntary manslayer, as to save him from being persecuted
by the dead man's ghost, and to rid the community of a pollution.
However, the Athenian law does not represent the ideas of early times.
As Dr. Farnell observes, the constitution and the legend about the
foundation of the court at the Palladium, which was established to try
cases of unintentional blood-shedding, shows that the ancient practice
was susceptible of improvement.[62] Nor does the Roman law, which, in
its developed shape, with such a remarkable consistency carried out
the Cornelian principle, "in maleficiis voluntas spectatur non
exitus,"[63] seem to have been equally discriminate in early
times.[64] In the Law of the Twelve Tables there are still some faint
traces left of the notion that expiation was required of a person who
accidentally shed human blood.[65]
[Footnote 61: Demosthenes, _Contra Aristocratem_, 71 _sq._ p. 643 _sq._]
[Footnote 62: Aristotle, _De republica Atheniensium_, 57. Farnell,
_Cults of the Greek States_, i. 304.]
[Footnote 63: _Digesta_, xlviii. 8. 14.]
[Footnote 64: von Jhering, _Das Schuldmoment im römischen
Privatrecht_, p. 16. Mommsen, _Römisches Strafrecht_, p. 85.]
[Footnote 65: Mommsen, _op. cit._ p. 85.]
{226} The principle of ancient Teutonic law was, "Qui inscienter
peccat, scienter emendet"--a maxim laid down by the compiler of the
so-called 'Laws of Henry I.,'[66] no doubt translating an old English
proverb.[67] In historic times, the law, distinguishing between _vili_
and _vadhi_, treats intentional homicide as worse than unintentional.
In one case there can, in the other there can not, be a legitimate
feud; and whilst wilful manslaughter can be expiated only by _wíte_,
as well as _wer_, the involuntary manslayer has to pay _wer_ to the
family of the dead, but no _wíte_ to the authorities.[68] Yet the
_wer_ to be paid was not merely compensation for the loss sustained,
as Wilda, misled by his enthusiasm for Teutonic law, has erroneously
assumed;[69] it was punishment as well.[70] And the character of
criminality attached to accidental homicide survived the system of
_wer_. When homicide became a capital offence, homicide by
misadventure was included in the law. However, the involuntary
manslayer was not executed, but recommended to the "mercy" of the
prince. This was the case in England in the later Middle Ages,[71] and
in France still more recently.[72] And when the English law was
altered, and the involuntary offender no longer was in need of mercy,
he nevertheless continued to be treated as a criminal. He was punished
with forfeiture of his goods. According to the rigour of the law such
a forfeiture might have been exacted even in the year 1828, when the
law was finally abolished after having fallen into desuetude in the
course of the previous century.[73]
[Footnote 66: _Leges Henrici I._ xc. 11.]
[Footnote 67: Pollock and Maitland, _History of the English Law before
the Time of Edward I._ i. 54.]
[Footnote 68: Wilda, _op. cit._ p. 545 _sqq._, 594. _Idem_, _Deutsche
Rechtsgeschichte_, i. 165. Pollock and Maitland, _op. cit._ ii. 471.]
[Footnote 69: Wilda, _op. cit._ p. 578.]
[Footnote 70: Geyer, _Die Lehre von der Nothwehr_, p. 87 _sq._ Trummer
_Vorträge über Tortur, &c._ i. 345. Brunner, _Forschungen_, p. 505 _sq._]
[Footnote 71: Bracton, _De Legibus et Consuetudinibus Angliæ_, fol.
134, vol. ii. 382 _sq._; fol. 104 b, vol. ii, 152 _sq._ Brunner,
_Forschungen_, p. 494 _sqq._ Biener, _Das englische Geschwornengericht_,
i. 120, 392. Pollock and Maitland, _op. cit._ ii. 479.]
[Footnote 72: Beaumanoir, _Les coutumes du Beauvoisis_, 69, vol. ii.
483. Esmein, _Histoire de la procédure criminelle en France_, p. 255.]
[Footnote 73: Stephen, _History of the Criminal Law of England_, iii. 77.]
If men at the earlier stages of civilisation generally {227} attach
undue importance to the outward aspect of conduct, the same is still
more the case with their gods.
The Tshi-speaking peoples of the Gold Coast believe that the god
Sasabonsum "takes delight in destroying all those who have offended
him, even though the offence may have been accidental and
unintentional"; whereas, among the same people, it is the custom that
even deaths resulting from accidents, not to speak of minor injuries,
are compensated for by a sum of money.[74] Miss Kingsley says she is
unable, from her own experience, to agree with Mr. Dennett's statement
with reference to the Fjort, that ignorance would save the man who had
eaten prohibited food. From what she knows, Merolla's story is
correct: the man, though he eat in ignorance, dies or suffers
severely. "It is true," she adds, "that one of the doctrines of
African human law is that the person who offends in ignorance, that is
not a culpable ignorance, cannot be punished; but this merciful dictum
I have never found in spirit law. Therein if you offend, you suffer;
unless you can appease the enraged spirit, neither ignorance nor
intoxication is a feasible plea in extenuation."[75] The Omahas
believe that to eat of the totem, even in ignorance, would cause
sickness, not only to the eater, but also to his wife and
children.[76]
[Footnote 74: Ellis, _Tshi-speaking Peoples of the Gold Coast_,
pp. 35, 301.]
[Footnote 75: Miss Kingsley, in her Introduction to Dennett's
_Folklore of the Fjort_, p. xxviii.]
[Footnote 76: Frazer, _Totemism_, p. 16.]
Speaking of the sacred animals of the ancient Egyptians, Herodotus
says, "Should any one kill one of these beasts, if wilfully, death is
the punishment; if by accident, he pays such fine as the priests
choose to impose. But whoever kills an ibis or a hawk, whether
wilfully or by accident, must necessarily be put to death."[77]
According to the Chinese penal code, "whoever destroys or damages,
whether intentionally or inadvertently, the altars, mounds, or
terraces consecrated to the sacred and imperial rites, shall suffer
100 blows, and be perpetually banished to distance {228} of 2000
_lee_."[78] In these cases the punishment inflicted by human hands is
obviously a reflection of the supposed anger of superhuman
beings.
[Footnote 77: Herodotus, ii. 65. _Cf._ Pomponius Mela, 9.]
[Footnote 78: _Ta Tsing Leu Lee_, sec. clviii. p. 172.]
The Shintoist prays for forgiveness of errors which he has committed
unknowingly.[79] According to the Vedic hymns, whoever with or without
intention offends against the eternal ordinances of Varuna, the
All-knowing and Sinless, arouses his anger, and is bound with the
bonds of the god--with calamity, sickness, and death.[80] Forgiveness
is besought of Varuna for sins that have been committed in
unconsciousness;[81] even sleep occasions sin.[82] The singer
Vasishtha is filled with pious grief, because daily against his will
and without knowledge he offends the god and in ignorance violates his
decree.[83] "All sages," say the Laws of Manu, "prescribe a penance
for a sin unintentionally committed"; such a sin "is expiated by the
recitation of Vedic texts, but that which men in their folly commit
intentionally, by various special penances."[84] Among the present
Hindus, "even in cases of accidental drinking of spirits through
ignorance on the part of any of the three twice-born classes, nothing
short of a repetition of the initial sacramentary rites, effecting a
complete regeneration, is held sufficient to purge the sin."[85]
[Footnote 79: Selenka, _Sonnige Welten_, p. 210 _sq._]
[Footnote 80: _Cf._ Kaegi, _Rigveda_, p. 66 _sq._; Oldenberg, _Die
Religion des Veda_, p. 289.]
[Footnote 81: _Rig-Veda_, v. 85. 8.]
[Footnote 82: _Ibid._ vii. 86. 6; x. 164. 3.]
[Footnote 83: _Ibid._ vii. 88. 6. _Cf._ Kaegi, _op. cit._ p. 68.]
[Footnote 84: _Laws of Manu_, xi. 45 _sq._ _Cf._ _Vasishtha_, 20.]
[Footnote 85: Rájendralála Mitra, _Indo-Aryans_, i. 393.]
In the Greek literature there are several instances of guilt being
attached to the accidental transgression of some sacred law, the
transgressor being perfectly unaware of the nature of his deed.
Oedipus is the most famous example of this. Actaeon is punished for
having seen Diana. Pausanias, the Spartan king, made sacrifice to Zeus
Phyxius, to atone for the death of the maiden whom he had slain by
misfortune.[86]
[Footnote 86: Farnell, _op. cit._ i. 72.]
The Babylonian psalmist, assuming that one of the {229} gods is angry
with him because he is suffering pain, exclaims:--"The sin which I
committed I know not. The transgression I committed I know not. The
affliction which was my food--I know it not. The evil which trampled
me down--I know it not. The lord in the wrath of his heart has
regarded me; the god in the fierceness of his heart has punished
me."[87] In another psalm it is said:--"He knows not his sin against
the god, he knows not his transgression against the god and the
goddess. Yet the god has smitten, the goddess has departed from
him."[88]
[Footnote 87: Zimmern, _Babylonische Busspsalmen_, p. 63.]
[Footnote 88: Sayce, _Hibbert Lectures on the Religion of the Ancient
Babylonians_, p. 505. _Cf._ Mürdter-Delitzsch, _Geschichte Babyloniens
und Assyriens_, p. 38.]
So, also, the Hebrew psalmist cries out, "Who can understand his
errors? cleanse thou me from secret faults."[89] Unintentional error,
as Mr. Montefiore observes, would be as liable to incur divine
punishment as the most voluntary crime, if it infringed the tolerably
wide province in which the right or sanctity of Yahveh was
involved.[90] Whilst a deliberate moral iniquity was punished under
the penal law, a sin committed "through ignorance, in the holy things
of the Lord," required a sin- or trespass-offering for its
expiation.[91] Speaking of the developed sacrificial system of the
Jews, Professor Moore remarks, "The general rule in the Mishna is that
any transgression the penalty of which, if wilful, would be that the
offender be cut off, requires, if committed in ignorance or through
inadvertence, a _[h.]a[t.][t.][=a]th_ [or sin-offering]; the catalogue
of these transgressions ranges from incest and idolatry to eating the
(internal) fat of animals and imitating the composition of the sacred
incense, but does not include the commonest offences against
morals."[92] The Rabbis also maintained that a false oath, even if
made unconsciously, involves man in sin, and is punished as such.[93]
{230} We meet with a similar opinion in mediæval Christianity. The
principle laid down by St. Augustine,[94] and adopted by Canon
Law,[95] that "ream linguam non facit, nisi mens rea," was not always
acted upon. Various penitentials condemned to penance a person who, in
giving evidence, swore to the best of his belief, in case his
statement afterwards proved untrue.[96] In other cases, also, the
Church prescribed penances for mere misfortunes. If a person killed
another by pure accident, he had to do penance--in ordinary cases,
according to most English penitentials, for one year,[97] according to
various continental penitentials, for five[98] or seven[99] years;
whereas, according to the Penitential of Pseudo-Theodore, he who
accidentally killed his father or mother was to atone his deed with a
penance of fifteen years,[100] and he who accidentally killed his son
with a penance of twelve.[101] The Scotists even expressly declared
that the external deed has a moral value of its own, which increases
the goodness or badness of the agent's intention; and though this
doctrine was opposed by Thomas Aquinas, Bonaventura, Suarez, and other
leading theologians, it was nevertheless admitted by them that,
according to the will of God, certain external deeds entail a certain
accidental reward, the so-called _aureola_.[102] In some cases the
secular law, also, punishes misadventure on religious grounds. Thus
the Salic law treated with great severity any person who accidentally
put fire to a church, although it imposed no penalty on other cases of
{231} unintentional incendiary;[103] and even to this day the Russian
criminal law prescribes penitence for homicide by misadventure, "in
order to quiet the conscience of the culprit."[104] According to the
Koran, he who kills a believer by mistake shall expiate his deed, not
only by paying blood-money to the family of the dead (unless they
remit it), but by setting free a believing slave; and as to him who
cannot find the means, "let him fast for two consecutive months--a
penance this from God."[105]
[Footnote 89: _Psalms_, xix. 12.]
[Footnote 90: Montefiore, _Hibbert Lectures on the Religion of the
Ancient Hebrews_, p. 103. _Cf._ _ibid._ p. 515 _sq._]
[Footnote 91: _Leviticus_, iv. 22 _sqq._; v. 15 _sqq._ _Numbers_,
xv. 24 _sqq._]
[Footnote 92: Moore, 'Sacrifice,' in Cheyne and Black, _Encyclopædia
Biblica_, iv. 4205.]
[Footnote 93: Montefiore, _op. cit._ p. 558.]
[Footnote 94: St. Augustine, _Sermones_, clxxx. 2 (Migne, _Patrologiæ
cursus_, xxxviii. 973).]
[Footnote 95: Gratian, _Decretum_, ii. 22. 2. 3.]
[Footnote 96: _P[oe]nitentiale Bedæ_, v. 3 (Wasserschleben,
_Bussordnungen der abendländischen Kirche_, p. 226). _P[oe]nit.
Egberti_, vi. 3 (_ibid._ p. 238). _P[oe]nit. Pseudo-Theodori_, xxiv. 5
(_ibid._ p. 593).]
[Footnote 97: _P[oe]nit. Theodori_, i. 4. 7 (_ibid._ p. 188).
_P[oe]nit. Bedæ_, iv. 5 (_ibid._ p. 225). _P[oe]nit. Egberti_, iv. 11
(_ibid._ p. 235). According to _P[oe]nit. Pseudo-Theodori_, xxi. 2
(_ibid._ p. 586), the penance was to last for five years.]
[Footnote 98: _P[oe]nit. Hubertense_, 2 (_ibid._ p. 377). _P[oe]nit.
Merseburgense_, 2 (_ibid._ p. 391). _P[oe]nit. Bobiense_, 4 (_ibid._
p. 408). _P[oe]nit. Vindobonense_, 2 (_ibid._ p. 418). _P[oe]nit.
Cummeani_, vi. 2 (_ibid._ p. 478). _P[oe]nit. XXXV. Capitulornm_, 1
(_ibid._ p. 506). _P[oe]nit. Vigilanum_, 27 (_ibid._ p. 529).]
[Footnote 99: _P[oe]nit. Parisiense_, 1 (_ibid._ p. 412). _P[oe]nit.
Floriacense_, 2 (_ibid._ p. 424).]
[Footnote 100: _P[oe]nit. Pseudo-Theodori_, xxi. 18 (_ibid._ p. 588).]
[Footnote 101: _P[oe]nit. Pseudo-Theodori_, xxi. 19 (_ibid._ 588).]
[Footnote 102: Göpfert, _Moraltheologie_, i. 185.]
[Footnote 103: _Lex Salica_ (Harold's text), 71. Brunner,
_Forschungen_, p. 507, n. 1.]
[Footnote 104: Foinitzki, in _Le droit criminel des états européens_,
edited by von Liszt, p. 531.]
[Footnote 105: _Koran_, iv. 94.]
How shall we explain all these facts? Do they faithfully represent
ideas of moral responsibility? Do they indicate that, at the earlier
stages of civilisation, the outward event as such, irrespectively of
the will of the agent, is an object of moral blame?
Most of the statements which imply a perfect absence of discrimination
between accident and intention, refer to the system of private
redress. Under this system a personal injury is regarded as a matter
which the injured party or his kin have to settle for themselves. It
certainly does not allow them to treat the offender just as they
please; as we have seen, it is more or less regulated by custom. But
at the same time it makes considerable allowance for the personal
feelings of the sufferer, and these feelings are apt to be neither
impartial nor sufficiently discriminate. Whether, in a savage
community, public opinion prescribes, or merely permits, revenge in
cases of accidental injury, is a question which the ordinary
observations of travellers leave unanswered. It is important to note
that one of the first steps which early custom or law took towards a
restriction of the blood-feud was to save the life of the involuntary
manslayer. Moreover, in many cases where the system of revenge has
been succeeded by punishment, the injured party may still have a voice
in the matter. In Abyssinia, for instance, "a life for a life is the
sentence passed upon the murderer; but, obtaining {232} the consent of
the relatives of the deceased, he is authorised by law to purchase his
pardon."[106] According to ancient Swedish law, an injury could not be
treated as accidental unless the injured party acknowledged it as
such.[107] In England, even in the days of Henry III., the king could
not protect the manslayer from the suit of the dead man's kin,
although he had granted him pardon on the score of misadventure.[108]
Indeed, so recently as 1741, a royal order was made for a hanging in
chains "on the petition of the relations of the deceased."[109] And to
this day English criminal courts, when dealing with some slight
offence, mitigate the punishment "because the prosecutor does not
press the case," or even give him leave to settle the matter and
withdraw the prosecution.[110]
[Footnote 106: Harris, _Highlands of Æthiopia_, ii, p. 94.]
[Footnote 107: von Amira, _Nordgermanische Obligationenrecht_, i. 382.]
[Footnote 108: _Three Early Assize Rolls for the County of
Northumberland_, _sæc. XIII_, p. 98.]
[Footnote 109: Amos, _Ruins of Time_, p. 23.]
[Footnote 110: Kenny, _Outlines of Criminal Law_, p. 23.]
In the case of accidental homicide, deference may also have to be
shown for the supposed feelings of the dead man's ghost, which, angry
and bloodless, is craving for revenge and thirsting for blood. To
leave its desires ungratified would be both dangerous and unmerciful.
That this has something to do with the rigid demand of life for life
in the case of homicide by misadventure seems all the more likely as
in some instances when the involuntary manslayer is pardoned, other
blood is to be shed instead of his. Among the Yao and Wayisa, near
Lake Nyassa, it is the custom "by way of propitiation to give up a
slave or some relative of the criminal's, to 'go along with the one
who was slain,' and this seems to be invariably done when one is
killed by accident, in which case the slayer may escape, the deputy
taking as it were his place."[111] We may assume that a similar idea
underlies the ancient Roman law which provided a ram to be sacrificed
in the place of the involuntary manslayer.
[Footnote 111: Macdonald, in _Jour. Anthr. Inst._ xii. 108.]
But the dead man's ghost not only persecutes his own family if
**neglectful of their duty, it also attacks the manslayer {233} and
cleaves to him like a miasma. The manslayer is consequently regarded
as unclean, and has, both for his own sake and for the sake of the
community in which he lives, to undergo some ceremony of purification
in order to rid himself of the dangerous and infectious pollution.
This notion will be illustrated in a following chapter. In the present
connection I merely desire to point out that the pollution is there,
whether the shedding of blood was intentional or accidental. And, as
will be shown, though this state of uncleanness does not intrinsically
involve guilt, it easily becomes a cause of moral disapproval, whilst
the ceremony of purification is apt to be looked upon in the light of
punishment. We shall also find that the notion of a persecuting ghost
may be replaced by the notion of an avenging god, it being a fact of
common occurrence that the doings or functions of one mysterious being
are transferred to another. We shall, finally, see that the infection
of uncleanness is shunned by gods even more than it is shunned by men;
and this largely helps to explain the attitude of religion towards
unintentional and unforeseen shedding of human blood.
There are other, more general reasons for the want of discrimination
often displayed by religion in regard to the accidental transgression
of a religious law. When a thing is _taboo_ in the strict sense of the
word, it is supposed to be charged with mysterious energy which will
injure or destroy the person who eats or touches the forbidden thing,
whether he does so wilfully or by mistake. As Professor Jevons
correctly observes, "the action of taboo is always mechanical; contact
with the tabooed object communicates the taboo infection as certainly
as contact with water communicates moisture. . . . The intentions of
the taboo-breaker have no effect upon the action of the taboo; he may
touch in ignorance, or for the benefit of the person he touches, but
he is tabooed as surely as if his motive were irreverent or his action
hostile."[112] So, also, according to primitive notions, the effect of
a curse or an {234} oath is purely mechanical; hence a person who
swears falsely in ignorance exposes himself to no less danger than a
person who perjures himself knowingly. As regards religious offences
in the strictest sense of the term--that is, offences against some god
which are supposed to arouse his resentment--it should be remembered
that, just as a man who is hurt is unable to judge on the matter as
coolly as does the community at large, so a god whose ordinances are
transgressed is thought to be less discriminating in his anger than a
disinterested human judge, and, consequently, more apt to be
influenced by the external event. And where nearly every calamity is
regarded as a divine punishment, a person who is suffering without
knowing what sin he has committed, naturally infers that a god is
punishing him for some secret fault.
[Footnote 112: Jevons, _Introduction to the History of Religion_, p. 91.]
Thus it may be that, in the point which we are discussing, as in
various other respects, the religious beliefs of a people do not
faithfully represent their general notions of moral responsibility. It
is profoundly wrong to assume, from the legend of Oedipus and other
similar cases, that the ancient Greeks, in general, held a person
"equally responsible for an accident which occurs to him, and for an
act of which the agent is aware." Even the transgression of a sacred
law, when committed in ignorance, seems to have excited pitiful horror
rather than moral indignation. Oedipus had killed his father in
self-defence, and married his mother, perfectly ignorant of his
relation to them. The gods punished the Thebans with pestilence for
harbouring such a wretch on their soil. But when "time that sees all,
found him out in his unwitting sin," it was not blame, but terror and
deep compassion for the unhappy man that, according to the
tragedian,[113] spoke from the lips of the people. Moreover, in the
latter tragedy Oedipus persistently vindicates his innocence:--"Whatever
I have done was done unwittingly"--"Before the law I have no guilt."
And, addressing himself to Creon, who has accused him of parricide and
incest, he {235} exclaims:--"O shameless soul, where, thinkest thou,
falls this thy taunt,--on my age, or on thine own? Bloodshed--incest
--misery--all this thy lips have launched against me,--all this that
I have borne, woe is me! by no choice of mine: for such was the pleasure
of the gods, wroth, haply, with the race from of old. . . Tell me, now,
--if, by voice of oracle, some divine doom was coming on my sire, that he
should die by a son's hand, how couldst thou justly reproach me
therewith, who was then unborn, whom no sire had yet begotten, no
mother's womb conceived? And if, when born to woe--as I was born--I
met my sire in strife, and slew him, all ignorant what I was doing,
and to whom,--how couldst thou justly blame the unknowing deed?[114]
Never was a more pathetic appeal made to the court of Justice from the
indiscriminate verdict of angry gods.
[Footnote 113: Sophocles, _[OE]dipus Tyrannus_.]
[Footnote 114: _Idem_, _[OE]dipus Coloneus_, 960 _sqq._ (Jebb's
translation, p. 155).]
Whilst the grossest want of discrimination may thus be explained from
revengeful feelings and superstitious beliefs, there still remain a
multitude of cases which must be regarded as genuine expressions of
moral indignation. As to these, it should, first, be remembered that
even the reflecting moral consciousness may hold a person blamable for
the unintentional and unforeseen infliction of an injury, namely, in
cases where it assumes want of proper foresight. Now, as we know, it
is often difficult enough to discern whether, or to what extent, an
unintended injury is due to carelessness on the part of the agent;
sometimes even it is no easy thing to tell whether an injury was
intended or not. It is not to be expected, then, that distinctions of
so subtle a nature should be properly made by the uncultured mind, and
least of all is it to be expected that such distinctions should be
embodied in early custom and law, which are based on average cases and
allow of no minute individualisation. It has been observed that the
roughness of Teutonic justice may be partly explained from the
difficulty in getting any proof of intention or of its absence, from
the lack of any proper distinctions between {236} misadventure and
carelessness, and from the fact that the so-called misadventures of
early times covered many a blameworthy act.[115] And all this holds
good not merely of the ancient Teutons. It may further be said that
the more defective the power of discrimination, the greater is the
tendency to presume guilt. In Morocco a man who runs away after
killing another is presumed to have committed the deed intentionally,
however innocent he really may be. Among the Teutons the presumption
was always against the manslayer; he had to proclaim what he had done,
and to prove that the deed was not intended[116]--unless, indeed, the
misadventure belonged to a certain type of injuries which by their
very nature entailed no guilt. For instance, if a man carried a spear
level on his shoulder and another ran upon the point, he was free from
blame; whereas, if harm ensued by pure accident from a distinct act,
the agent was liable.[117] As von Amira remarks, the Swedish notion of
_vadhaværk_ was not a merely negative conception, but implied that
there was danger connected with the act.[118]
[Footnote 115: Pollock and Maitland, _op. cit._ i. 55; ii. 475, 483.
von Amira, _Nordgermanisches Obligationenrecht_, i. 377 _sq._]
[Footnote 116: Wilda, _op. cit._ i. 345. Brunner, _Forschungen_, p.
500 _sq._ Pollock and Maitland, _op. cit._ ii. 471.]
[Footnote 117: Wilda, _op. cit._ p. 584. Trummer, _op. cit._ i. 427.
Brunner, _Forschungen_, p. 499 _sq._ von Amira, 'Recht,' in Paul's
_Grundriss der germanischen Philologie_, ii. pt. ii. 172. Pollock and
Maitland, _op. cit._ i. 53 _sq._]
[Footnote 118: von Amira, _Nordgermanisches Obligationenrecht_, i. 377.]
Where the distinction between guilt and innocence is difficult to
draw, it may be wise policy to presume guilt. According to Sir R.
Burton, the Mpongwe jurists say that little or no difference is
generally made between wilful murder and accidental manslaughter in
order that people should be more careful;[119] and a similar idea may
lie at the bottom of the Dahoman law which punishes capitally any
person whose house takes fire, even if it happens accidentally.[120]
But the presumption of guilt is not only, nor in the first place,
owing to considerations of social utility, combined with a reckless
indifference to undeserved suffering. {237} The unreflecting mind is
shocked by the harm done, and cares little for the rest. It does not
press the question whether the harm was caused by the agent's will or
not. It does not make any serious attempt to separate the external
event from the will, and it is inclined to assume that there is a
coincidence between the two. This is not altogether bad psychology
since, as a rule, men will what they do. "Le fait juge l'homme," says
an old French proverb; and in morals, also, "the tree is known by the
fruit." However, there are cases of injuries in which not even
uncivilised men can fail to discover, at once, the absence of any evil
intention. This certainly does not mean that the injurer escapes all
censure. Every feeling of pain, sympathetic pain included, which is
caused by a living being, has a certain tendency to give rise to an
aggressive impulse towards its cause; hence savages, even though they
distinguish between intentional and unintentional harm, are inclined
to impute some degree of guilt to any person who involuntarily commits
a forbidden deed, though he be in reality quite innocent. But the
reason for this is only want of due reflection. If it is clearly
understood that a certain event is the result of merely external
circumstances, that it was neither intended by the agent nor could
have been foreseen by him, in other words, that it in no way was
caused by his will--then there could be no moral indignation at all.
It would be simply absurd to suppose that an outward event as such,
assumed to be absolutely unconnected with any defect of will, could
ever give rise to moral blame. Such an event could not even call forth
a feeling of revenge. Sudden anger itself cools down when it appears
that the cause of the inflicted pain was a mere accident. Even a dog,
as has been observed, distinguishes between being stumbled over and
being kicked.
[Footnote 119: Burton, _Two Trips to Gorilla Land_, i. 105.]
[Footnote 120: Ellis, _E[(w]e-speaking Peoples of the Slave Coast_,
p. 224.]
That the indiscriminate attitude of early custom and law towards
accidental injuries does not imply any difference in principle between
the enlightened and unenlightened moral consciousness as regards the
subject of moral valuation, {238} becomes perfectly obvious when we
consider what a great influence the outward event exercises upon moral
estimates even among ourselves. "The world judges by the event, and
not by the design," says Adam Smith. "Everybody agrees to the general
maxim, that as the event does not depend on the agent, it ought to
have no influence upon our sentiments, with regard to the merit or
propriety of his conduct. But when we come to particulars, we find
that our sentiments are scarce in any one instance exactly conformable
to what this equitable maxim would direct."[121] Even in the criminal
laws of civilised nations chance still plays a prominent part.
According to the present law of England, though a person is not
criminally liable for the involuntary and unforeseen consequences of
acts which are themselves permissible, the case is different if he
commits an act which is wrong and criminal,[122] or, as it seems, even
if he commits an act which is wrong without being forbidden by
law.[123] Thus death caused unintentionally is regarded as murder, if
it takes place within a year and a day[124] as the result of an
unlawful act which amounts to a felony.[125] For instance, a person
kills another accidentally by shooting at a domestic fowl with intent
to steal it, and he will probably be convicted of murder.[126] Again,
a near-sighted man drives at a rapid rate, sitting at the bottom of
his cart, and thereby causes the death of a foot-passenger; he is
guilty of manslaughter.[127] A man recklessly and wantonly throws a
lighted match into a haystack, careless whether it take fire or not,
and so burns down the stack; his crime is arson. But if he did not
intend to throw the lighted match on the haystack, he would probably
not be guilty of any offence at all, "unless death was caused, in
which case he would be guilty of manslaughter."[128] Even if the
unintended death is to some {239} extent owing to the negligence of
the injured party himself, it may be laid to the charge of the
injurer. This at all events was the law in Hale's time, "If a man," he
says, "receives a wound, which is not in itself mortal, but either for
want of helpful applications, or neglect thereof, it turns to a
gangrene, or a fever, and that gangrene or fever be the immediate
cause of his death, yet, this is murder or manslaughter in him that
gave the stroke or wound."[129] So far as I know, the severity of the
English law on unintentional homicide--which, in fact, is a survival
of ancient Teutonic law[130]--is without a parallel in the European
legislation of the present day. Both the French[131] and the
German[132] laws are much less severe; and so is the Ottoman Penal
Code,[133] and Muhammedan law in general.[134] Yet the unintended
deadly consequence of a criminal act always affects the punishment
more or less.
[Footnote 121: Adam Smith, _Theory of Moral Sentiments_, p. 152.]
[Footnote 122: According to Harris (_Principles of the Criminal Law_,
p. 156), the act should be a _malum in se_, not merely a _malum quia
prohibitum_.]
[Footnote 123: Kenny, _op. cit._ p. 41.]
[Footnote 124: Stephen, _History of the Criminal Law of England_,
iii. 8.]
[Footnote 125: _Ibid._ iii. 22.]
[Footnote 126: _Ibid._ iii. 83.]
[Footnote 127: Harris, _op. cit._ p. 157.]
[Footnote 128: Stephen, _op. cit._ ii. 113.]
[Footnote 129: Hale, _History of the Pleas of the Crown_, i. 428.]
[Footnote 130: _Lex Wisigothorum_, vi. 5. 6: "Si dum quis calce, vel
pugno, aut quacumque percussione injuriam conatur inferre, homicidii
extiterit occasio, pro homicidio puniatur."]
[Footnote 131: _Code Pénal_, art. 309.]
[Footnote 132: _Strafgesetzbuch_, art. 226.]
[Footnote 133: _Ottoman Penal Code_, art. 177. _Cf._ _ibid._ art. 174.]
[Footnote 134: Sachau, _op. cit._ p. 761 _sq._]
I presume that nobody after due deliberation would maintain that the
moral guilt of the offender is enhanced by the death of him whom he
involuntarily happened to kill. Sir James Stephen, nevertheless, makes
an attempt to defend, from a moral point of view, the severe English
law on the subject, which he thinks "is much to be preferred to the
law of France." He asks, "Is there anything to choose morally between
the man who violently stabs another in the chest with the definite
intention of killing him, and a man who stabs another in the chest
with no definite intention at all as to the victim's life or death,
but with a feeling of indifference whether he lives or dies?"[135]
Perhaps not. But I venture to maintain that there is a considerable
moral difference between the man who shoots at another with the
definite intention of killing him, and the man who, firing at
another's chickens, with the intention of stealing them, accidentally
kills the owner whom {240} he does not see. It will perhaps be argued
that the law has a utilitarian purpose, its object being to make
people more careful. But if this were the case one would expect that
the law should punish with equal severity acts which involve the same
degree of danger, and which result in similar injuries. To fire at a
sparrow may be as dangerous to people's lives as to fire at another
person's chicken, and, in the latter case, the danger is hardly
increased by the intention to steal the chicken. I take the truth to
be this. The degree of punishment corresponds to the degree of
indignation aroused by the deed. Public imagination is shocked by the
actual event. The agent, being guilty either of criminal intention, or
of gross disregard of other people's interests, or of criminal
heedlessness, is a proper object of punishment. Owing to that want of
discrimination which characterises the popular mind, his guilt is
exaggerated on account of the grave consequences of his act; and the
result is that he is punished not only for the fault of his will, but
for his bad luck as well. Sir James Stephen seems to admit this, when
saying that the shock which the offence gives to the public feeling
requires that the offender should himself suffer "a full equivalent
for what he has inflicted," from which "he ought to be excused only on
grounds capable of being understood by the commonest and most vulgar
minds."[136] Though thoroughly dissenting from the opinion that
criminal law should try to gratify the feelings of "the commonest and
most vulgar minds," I think that, as a matter of fact, it is not much
above their standard of justice, being in the main an expression of
public sentiments.
[Footnote 135: Stephen, _op. cit._ iii. 91 _sq._]
[Footnote 136: _Ibid._ iii. 91.]
* * * * *
In the cases which we have hitherto considered the external event
which a person brings about involuntarily, either makes him liable to
punishment though he really is free from guilt, or increases his
punishment beyond the limits of his guilt. But the influence of chance
also shows {241} itself in the opposite way. A person who is guilty of
carelessness generally escapes all punishment if no injurious result
follows, and an unsuccessful attempt to commit a criminal act, if
punished at all, is, as a rule, punished much less severely than the
accomplished act.
The Hottentots nowadays punish attempt, but only leniently.[137] The
Wadshagga punish it less severely than the accomplished act.[138]
Among some of the Marshall Islanders it is not punished at all.[139]
The same holds good of the Ossetes[140] and Swanetians[141] of the
Caucasus, as also of ancient Russian law.[142] The Teutons, as a
general rule, had no punishment for him who tried to do harm, but
failed; and if they did punish an unsuccessful attempt, the penalty
was out of proportion lenient.[143] This feature of ancient Teutonic
law has had a lasting effect upon European legislation, largely
through the influence it exercised upon the Italian jurists of the
Middle Ages,[144] whose theories laid the foundation of modern laws
and doctrines on attempt. In conformity with the Roman law, they held
attempts to commit crimes to be punishable, and in atrocious cases
they even admitted that the attempt might be subject to the same
punishment as the accomplished crime. But their general theory was
that it should be punished less severely, and that the penalty should
be lenient in proportion as the actual deed was remote from the act
intended.[145] These views were generally adopted by the later
legislation. Among present European lawbooks, the French Code
Pénal[146] is almost the only one that punishes an attempt {242} with
the same severity as the finished crime.[147] And the French law on
the subject is of modern origin; before the year IV. the present rule
was applied only to the _conatus proximus_ in a few specified cases of
a very heinous character.[148]
[Footnote 137: Kohler, in _Zeitschr. f. vergl. Rechtswiss._ xv. 353.]
[Footnote 138: Merker, quoted by Kohler, _ibid._ xv. 63.]
[Footnote 139: Kohler, _ibid._ xiv. 418.]
[Footnote 140: Kovalewsky, _Coutume contemporaine_, p. 296 _sq._]
[Footnote 141: Dareste, _Nouvelles études d'histoire du droit_, p. 237.]
[Footnote 142: Kovalewsky, _op. cit._ pp. 291, 299.]
[Footnote 143: Wilda, _op. cit._ p. 598 _sqq._ Zachariä, _Die Lehre
vom Versuche der Verbrechen_, i. 164 _sqq._; ii. 130 _sq._ Brunner,
_Deutsche Rechtsgeschichte_, ii. 558 _sqq._ Pollock and Maitland,
ii. 475, 509.]
[Footnote 144: Seeger, _Versuch der Verbrechen in der Wissenschaft des
Mittelalters_, p. 8.]
[Footnote 145: Zachariä, _op. cit._ i. 169; ii. 141. von
Feuerbach-Mittermaier, _Lehrbuch des Peinlichen Rechts_, p. 74.]
[Footnote 146: _Code Pénal_, art. 2: "Toute tentative de crime qui
aura été manifestée par un commencement d'exécution, si elle n'a été
suspendue ou si elle n'a manqué son effet que par des circonstances
indépendantes de la volonté de son auteur, est considérée comme le
crime même."]
[Footnote 147: Chauveau and Hélie, _Théorie du Code Pénal_, i. 347 _sq._]
[Footnote 148: _Ibid._ i. 337 _sq._]
Besides the provision of the Code Pénal concerning attempt, there are
a few other exceptions, of an earlier date, to the general rule. The
Romans seemed to have followed the principle "dolus pro facto
accipitur,"[149] at least if the crime attempted was a serious
one.[150] A somewhat similar line was adopted by ancient Irish law.
The general impression produced by the rules in the commentary to the
Book of Aicill is, that the attempt to commit an injurious act was
treated as equivalent to its commission, unless the result was very
insignificant. Thus, if an attempt was made to slay, or to inflict an
injury which would endure for life, and blood was shed, the fine was
the same as if the attempt had succeeded; whereas, if the injury did
not amount to the shedding of blood, the fine was reduced
one-half.[151] And if a man went to kill one person and killed another
by mistake, a fine for the intention, in addition to the fine due to
the friends of the murdered man, was due to him whose death was
intended, even though no injury was actually done to him.[152] In
England, at the end of the Middle Ages, the will was taken for the
deed in cases of obvious attempts to murder; but this rule appears to
have been considered too severe--even in an age when death was the
common punishment for felony--and to have fallen into disuse several
centuries ago.[153]
[Footnote 149: _Digesta_, xlviii. 8. 7.]
[Footnote 150: Seeger, _Versuch der Verbrechen nach römischcm Recht_,
pp. 1, 2, 49. _Idem_, _Versuch der Verbrechen in der Wissenschaft des
Mittelalters_, p. 9. Mommsen, _Römisches Strafrecht_, p. 97 _sq._
Apuleius, _Florida_, iv. 20:--"In maleficiis etiam cogitata scelera
non perfecta adhuc vindicantur, cruenta mente, pura manu. Ergo sicut
ad poenam sufficit meditari punienda."]
[Footnote 151: _Ancient Laws of Ireland_, iii. pp. cviii. _sq._ 139.]
[Footnote 152: Cherry, _Growth of Criminal Law in Ancient
Communities_, p. 32.]
[Footnote 153: Stephen, _op. cit._ ii. 222 _sq._ Thomas Smith,
_Common-wealth of England_, p. 194 _sq._]
{243} The question, which attempts should be punished, and even the
elementary question, what constitutes an attempt, have been answered
differently by different jurists and legislators.[154] In England all
attempts whatever to commit indictable offences, whether felonies or
misdemeanours, are punishable by law.[155] The French[156] and
German[157] codes, on the other hand, do not punish, except in a few
particular cases, attempts to commit _délits_ or _Verbrechen_, that
is, what the English jurists would describe as misdemeanours.
[Footnote 154: See Cohn, _Zur Lehre vom versuchten und unvollendeten
Verbrechen_, i. 6 _sqq._]
[Footnote 155: Stephen, _op. cit._ ii. 224.]
[Footnote 156: _Code Pénal_ art. 3.]
[Footnote 157: _Strafgesetzbuch_, art. 43.]
Again, should a person be punished for attempting to commit a crime in
a manner in which success is physically impossible, as if he attempts
to steal from a pocket which is empty, or puts into a cup pounded
sugar which he believes to be arsenic? This question has given rise to
a whole literature. Seneca's statement that "he who mixes a sleeping
draught, believing it to be poison, is a poisoner,"[158] seems to have
had the support of Roman law.[159] In England, some time ago, the man
who attempted to pick an empty pocket, was not held liable for an
attempt to steal;[160] but this case has been overruled, and it
appears now to be the law that an indictment would lie for such an
attempt.[161] According to the French[162] and Italian[163] codes, it
would not be punished, according to some German law-books, it
would;[164] whilst the Strafgesetzbuch contains no special provisions
for attempts of a similar character.
[Footnote 158: Seneca, _De beneficiis_, v. 13. _Cf._ _Idem_, _Ad
Serenum_, 7.]
[Footnote 159: Seeger, _Versuch nach römischem Recht_, p. 30.]
[Footnote 160: Stephen, _op. cit._ ii. 225.]
[Footnote 161: Harris, _Principles of the Criminal Law_, p. 209 n. _c._]
[Footnote 162: Stephen, _op. cit._ ii. 225.]
[Footnote 163: Alimena, in _Le droit criminel des états européens_,
ed. by von Liszt, p. 123.]
[Footnote 164: von Feuerbach-Mittermaier, _op. cit._ p. 76. Cohn, _op.
cit._ i. 14.]
Finally there are different rules as to the stage at which an attempt
begins to be criminal, or as to the distinction between attempts and
acts of preparation. The Romans, it is supposed, drew no such
distinction.[165] The French law regards as permissible acts of
preparation many {244} things which in England would be punished as
attempts.[166] In England lighting a match with intent to set fire to
a haystack has been held to amount to a criminal attempt to burn it,
although the defendant blew out the match on seeing that he was
watched. But it was said in the same case that, if he had gone no
further than to buy a box of matches for the purpose, he would not
have been liable, the act being too remote from the offence to be
criminal.[167] "Liability will not begin until the offender has done
some act which not only manifests his _mens rea_ but also goes some
way towards carrying it out."[168]
[Footnote 165: Seeger, _Versuch nach römischem Recht_, p. 49.]
[Footnote 166: Chauveau and Hélie, _op. cit._ i. 357 _sqq._ Stephen,
_op. cit._ ii. 226.]
[Footnote 167: Holmes, _Common Law_. p. 67 _sq._]
[Footnote 168: Kenny, _op. cit._ p. 79.]
If we go a step further, we come to designs unaccompanied by any
attempt whatever to realise them. The laws of all countries agree as
to the principle that an outward event is requisite for the infliction
of punishment. "Cogitationis p[oe]nam nemo patitur."[169]
[Footnote 169: _Digesta_, xlviii. 19. 18.]
This fact again illustrates the influence which external deeds
exercise upon the moral feelings of men. In the average man moral
emotions are hardly ever called into existence by calm and penetrating
reflection. There are certain phenomena which for some reason or other
are apt to arouse in him such emotions, but he does not seek for them.
They must force themselves upon his mind, and the more vigorously they
do so, the stronger are the emotions they excite. Nothing makes a
greater impression on him than facts which are perceptible by the
senses. He will admit that an intention, or even a mere wish, to do
something wrong is wrong by itself, but an outward event is generally
needed for shaking him up. This, I think, is the original reason why
persons have not been punished for intentions unaccompanied by
external deeds. No doubt, the principle that "the thought of man shall
not be tried," is strongly supported by the fact that, as a mediæval
writer puts it, "the devil himself knoweth not the thought of
man."[170] But considering how ready people {245} have been to presume
guilt in cases of unintentional injuries, it seems very incredible
that they originally refrained from punishing bare intentions merely
on account of insufficient evidence. Indeed, as an exception to the
rule, in a few cases when the crime designed is regarded with extreme
horror, the very intention may give such a shock to public imagination
as to call for punishment.
[Footnote 170: Quoted by Pollock and Maitland, _op. cit._ ii. 474.]
According to Chinese law, "any person convicted of a design to kill
his or her father or mother, grandfather or grandmother, whether by
the father's or mother's side; and any woman convicted of a design to
kill her husband, husband's father or mother, grandfather or
grandmother, shall, whether a blow is, or is not struck in
consequence, suffer death by being beheaded."[171] This exceptional
law obviously owes its origin to the extreme reverence in which
parents and ancestors are held by the Chinese, and to the wife's
subjection to her husband. In mediæval laws referring to heresy we
have another instance of punishment being inflicted for a mere state
of mind without any corresponding act. According to Julius Clarus,
this exception to the rule is due to the fact that the crime of heresy
itself consists in "sola mentis cogitatione."[172] But the real reason
why the law in this case troubled itself about men's thoughts, and
even allowed them to be put on their trial for their tacit opinions on
bare suspicion, is the detestation in which heresy was held and the
extreme attention it attracted. By all this, of course, I do not mean
to deny that a judicious and enlightened legislator may find other
grounds for taking no notice of mere intentions than their inability
to arouse public indignation. I only speak of matters of
fact.
[Footnote 171: _Ta Tsing Leu Lee_, sec. cclxxxiv. p. 305.]
[Footnote 172: Julius Clarus, _Practica Criminalis_, qu. 91 (_Opera
omnia_, ii. 625).]
Again, as regards acts of preparation and many cases of unsuccessful
attempts, it may be said that the agent perhaps would have altered his
mind before he came to the point, or that the failure of his attempt
was possibly due {246} to a change of intention in the last
moment.[173] But there are innumerable cases in which the attempt,
with no less certainty than the accomplished crime, displays a
criminal intention which is final. And it is particularly instructive
to note that, among the very peoples who treat unintentional injuries
with the greatest severity, unsuccessful attempts are treated with the
greatest leniency. This is well illustrated by a comparison between
Teutonic and Roman law; in either case the former chiefly looks at the
event, the latter chiefly at the intention of the agent. If there is
no punishment for a bare attempt to commit a crime, that is because
such an attempt makes no impression on the public. If an attempt is
punished more heavily according as it is more advanced, that is
because it calls forth greater indignation in proportion as it comes
near to the crime intended. And if even the _conatus proximus_ is
punished with less severity than the accomplished crime, that is
because the indignation it evokes is less. This explanation is
corroborated by concessions made by theorisers who have in vain
endeavoured to find more rational grounds for existing laws on
attempt. They have ultimately found it necessary to resort to phrases
such as "the natural sense of justice," or to appeal to the feelings
of the multitude.[174] {247} M. Rossi observes, "Nous pensons que le
sens commun et la conscience publique ont constamment tenu le même
langage. 'Le délit n'a pas été consommé, donc la punition doit être
moindre.' Cette idée de proportion matérielle, ce sentiment de
justice, grossière j'en conviens, est naturel à l'homme."[175] This is
the view taken by the unreflecting moral consciousness. To him whose
feelings are tempered by thought, "a man," as Seneca says, "is no less
a brigand, because his sword becomes entangled in his victim's
clothes, and misses its mark."[176]
[Footnote 173: As a rule, the man who voluntarily desists from the
attempt to commit a crime would not be punished at all (see Seeger,
_Versuch nach römischem Recht_, p. 50; Charles V.'s _Peinliche
Gerichts Ordnung_, art. 178; the French _Code Pénal_, art. 2; the
Italian _Codice Penale_, art. 61; Finger, _Compendium des
österreichischen Rechtes--Strafrecht_, i. 181; and, for various German
laws, Zachariä, _op. cit._ ii. 311 _sq._, and Cohn, _op. cit._ i. 12
_sq._), or he would be punished more leniently than if there had been
no such desistance (Zachariä, ii. 239, _sqq._ Cohn, i. 12 _sq._). On
this subject see also Herzog, _Rücktritt vom Versuch und Thätige
Reue_, _passim_.]
[Footnote 174: Lelièvre, _De conatu delinquendi_, p. 361 (quoted by
Zachariä, _op. cit._ ii. 66, n. 2): "Ceterum libenter fateor, me
potius sentire aliquam necessitatem paululum levius in perfectum
crimen ac in maleficium consummatum animadvertendi, quam reddere
posse claram necessitates rationem." Abegg, _Die verschiedenen
Strafrechtstheorieen_, p. 65: "Für uns folgt aber jene nothwendige
Beobachtung der concreten Unterschiede, in dem Gebiete der
Erscheinung, nach der aus dem Gerechtigkeitsprincipe abgeleiteten
Regel, dass Jeder für _seine That_, und was er _verdient_ habe, leiden
solle." Zachariä, _op. cit._ ii. 51:--"So macht sich in dem
natürlichen Gerechtigkeits-Gefühl des Einzelnen und des ganzen Volkes
auch von selbst die Unterscheidung zwischen der Strafe des vollendeten
und der des blos versuchten Verbrechens geltend. . . . Es kann
freilich seyn, dass der grösste Theil der Menschen für ein solches
natürliches Gefühl keine Gründe anzugeben vermag; allein das
Strafrecht, welches ja gerade auf die grosse Menge zu wirken hat, kann
dessenungeachtet solche unwillkürlich im Volke sich geltend machende
Ansichten nicht unberücksichtigt lassen." _Cf._ also Finger, _op.
cit._ i. 177.]
[Footnote 175: Rossi, _Traité de droit pénal_, ii, 318.]
[Footnote 176: Seneca, _Ad Serenum_, 7.]
* * * * *
In the same way as moral indignation, is moral approval influenced by
external events. Though we would not praise a person for some deed of
his which we clearly recognise to reflect no merit on his will, the
benefits which result from a good act easily induce us to exaggerate
the goodness of the agent. On the other hand, it is success alone that
confers upon a man the full reward which he deserves; good intentions
without corresponding deeds meet with little applause even when the
failure is due to mere misfortune. "In our real feeling or sentiment,"
Hume observes, "we cannot help paying a greater regard to one whose
station, joined to virtue, renders him really useful to society, than
to one who exerts the social virtues only in good intentions and
benevolent affections."
* * * * *
It is thus only from want of due reflection that moral judgments are
influenced by outward deeds. Owing to its very nature, the moral
consciousness, when sufficiently influenced by thought, regards the
will as the only proper object of moral disapproval or moral praise.
That moral qualities are internal, is not an invention of any
particular moralist or any particular religion; it has been recognised
by thoughtful men in many different countries and different {248}
ages. "He that is pure in heart is the truest priest," said
Buddha.[177] In the Taouist work, 'Kan ying peen,' it is written:--"If
you form in your heart a good intention, although you may not have
done any good, the good spirits follow you. If you form in your heart
a bad intention, although you may not have done any harm, the evil
spirits follow you."[178] According to the Thâi-Shang, mere wishes are
sufficient to constitute badness.[179] One of the Pahlavi texts puts
the following words into the mouth of the Spirit of Wisdom:--"To be
grateful in the world, and to wish happiness for every one; this is
greater and better than every good work."[180] God, says the Koran,
"will not catch you up for a casual word in your oaths, but He will
catch you up for what your hearts have earned."[181] According to the
Rabbis, the thought of sin is worse than sin, and an unchaste thought
is a "wicked thing."[182] It was an ancient Mexican maxim that "he who
looks too curiously on a woman commits adultery with his eyes"[183]--a
striking parallel to the passage in St. Matthew v. 28. "Voluntas
remuneratur, non opus," says the Canonist. "Licet gladio non occidat,
voluntate tamen interficit." "Non ideo minus delinquit, cui sola deest
facultas."[184]
[Footnote 177: Hopkins, _Religions of India_, p. 319.]
[Footnote 178: Douglas, _Confucianism and Taouism_, p. 270.]
[Footnote 179: _Thâi-Shang_, 4.]
[Footnote 180: _Dînâ-î-Maînôgî Khirad_, lxiii. 3 _sqq._ _Cf._ _ibid._
i. 10, where it is said that the good work which a man does
unwittingly is little of a good work, though the sin which a man
commits unwittingly amounts to a sin in its origin.]
[Footnote 181: _Koran_, ii. 225. _Cf._ Ameer Ali, _Ethics of Islâm_,
p. 26.]
[Footnote 182: Schechter, in Montefiore, _op. cit._ p. 558. _Cf._
Deutsch, _Literary Remains_, p. 52.]
[Footnote 183: Sahagun, _Historia general de las cosas de Nueva
España_, vi. 22, vol. ii. 147: "Dice el refran que el _que
curiosamente mira á la muger adultéra_ con la vista."]
[Footnote 184: Gratian, _Decretum_, ii. 33. 3. 25, 30, 29.]
CHAPTER X
AGENTS UNDER INTELLECTUAL DISABILITY
WE hold an agent responsible not only for his intention, but for any
known concomitant of his act, as also for any such unknown concomitant
of it as we attribute to want of due attention. But for anything which
he could not be aware of he is not responsible. Hence certain classes
of agents--animals, children, idiots, madmen--are totally or partially
exempted from moral blame and legal punishment.
Though animals are undoubtedly capable of acting, we do not regard
them as proper objects of moral indignation. The reason for this is
not merely the very limited scope of their volitions and their
inability to foresee consequences of their acts, since these
considerations could only restrict their responsibility within
correspondingly narrow limits. Their total irresponsibility rests on
the presumption that they are incapable of recognising any act of
theirs as right or wrong. If the concomitant of an act is imputable to
the agent only in so far as he could know it, it is obvious that no
act is wrong which the agent could not know to be wrong.
It is a familiar fact that, by discipline, we may teach domesticated
animals to live up to a certain standard of behaviour, but this by no
means implies that we awake in them moral feelings. When some writers
credit dogs and apes with a conscience,[1] we must remember that an
{250} observer's inference is not the same as an observed fact.[2] It
seems that the so-called conscience in animals is nothing more than an
association in the animal's mind between the performance of a given
act and the occurrence of certain consequences, together with a fear
of those consequences.[3]
[Footnote 1: Romanes, _Mental Evolution in Animals_, p. 352. Perty,
_Seelenleben der Thiere_, p. 67. Brehm, _From North Pole to Equator_,
p. 298.]
[Footnote 2: _Cf._ Lloyd Morgan, _Animal Life and Intelligence_, p. 399.]
[Footnote 3: _Cf._ _ibid._ p. 405.]
The following is one of the most striking instances of what
Professor Romanes regards as "conscience" in animals; it refers to a
terrier which had never, even in its puppyhood, been known to steal,
but on the contrary used to make an excellent guard to protect
property from other animals, servants, and so forth, even though these
were his best friends. "Nevertheless," says Professor Romanes, "on one
occasion he was very hungry, and in the room where I was reading and
he was sitting, there was, within easy reach, a savoury mutton chop. I
was greatly surprised to see him stealthily remove this chop and take
it under a sofa. However, I pretended not to observe what had
occurred, and waited to see what would happen next. For fully a
quarter of an hour this terrier remained under the sofa without making
a sound, but doubtless enduring an agony of contending feelings.
Eventually, however, conscience came off victorious, for emerging from
his place of concealment and carrying in his mouth the stolen chop, he
came across the room and laid the tempting morsel at my feet. The
moment he dropped the stolen property he bolted again under the sofa,
and from this retreat no coaxing could charm him for several hours
afterwards. Moreover, when during that time he was spoken to or
patted, he always turned away his head in a ludicrously
conscience-stricken manner. Altogether I do not think it would be
possible to imagine a more satisfactory exhibition of conscience by an
animal than this; for . . . the particular animal in question was
never beaten in its life." The author then adds in a note that "mere
dread of punishment cannot even be suspected to have been the motive
principle of action."[4] It may be so, if by punishment be understood
the infliction of physical pain. But it can hardly be doubted that the
terrier suspected his master to be displeased with his behaviour, and
the dread of displeasure or reproof may certainly have been the sole
reason for his bringing back the stolen food. Among {251} "high-life"
dogs, as Professor Romanes himself observes, "wounded sensibilities
and loss of esteem are capable of producing much keener suffering than
is mere physical pain."[5] But fear of the anticipated consequences of
an act, even when mixed with shame, is not the same as the moral
feeling of remorse. There is no indication that the terrier felt that
his act was wrong, in the strict sense of the word.
[Footnote 4: Romanes, 'Conscience in Animals,' in _Quarterly Journal
of Science_, xiii. 156 _sq._]
[Footnote 5: _Idem_, _Animal Intelligence_, p. 439.]
However, though most of us, on due reflection, would deny that animals
are proper objects of moral censure, there is a general tendency to
deal with them as if they were. The dog or the horse that obstinately
refuses to submit to its master's will arouses a feeling of resentment
which almost claims to be righteous; and the shock given to public
feeling by some atrocious deed committed by a beast calls for
retribution. As Adam Smith observes, "the dog that bites, the ox that
gores, are both of them punished. If they have been the causes of the
death of any person, neither the public, nor the relations of the
slain, can be satisfied, unless they are put to death in their turn:
nor is this merely for the security of the living, but, in some
measure, to revenge the injury of the dead."[6]
[Footnote 6: Adam Smith, _Theory of Moral Sentiments_, p. 137.]
If thus our own resentment towards an animal which has caused some
injury, when not duly tempered by reason, often comes near actual
indignation, it is not surprising to find that, at the lower stages of
human civilisation, animals are deliberately treated as responsible
agents. The American Indian who eats the vermin which molest him
defends his action by arguing that, as the animal has first bitten
him, he is only retaliating the injury on the injurer.[7] The custom
of blood-revenge is often extended to the animal world. The Kukis,
says Mr. Macrae, "are of a most vindictive disposition; blood must
always be shed for blood; if a tiger kills {252} any of them, near a
_Parah_ [or village], the whole tribe is up in arms, and goes in
pursuit of the animal; when if he is killed, the family of the
deceased gives a feast of his flesh, in revenge of his having killed
their relation. And should the tribe fail to destroy the tiger, in
this first general pursuit of him, the family of the deceased must
still continue the chase; for until they have killed either this, or
some other tiger, and have given a feast of his flesh, they are in
disgrace in the _Parah_, and not associated with by the rest of the
inhabitants. In like manner, if a tiger destroys one of a hunting
party, or of a party of warriors, on an hostile excursion, neither the
one nor the other (whatever their success may have been) can return to
the _Parah_, without being disgraced, unless they kill the tiger."[8]
Of the Sea Dyaks we are told that they will not willingly take part in
capturing an alligator, unless the alligator has first destroyed one
of themselves; "for why, say they, should they commit an act of
aggression, when he and his kindred can so easily repay them? But
should the alligator take a human life, revenge becomes a sacred duty
of the living relatives, who will trap the man-eater in the spirit of
an officer of justice pursuing a criminal. . . . The man-eating
alligator is supposed to be pursued by a righteous Nemesis; and
whenever one is caught, they have a profound conviction that it must
be the guilty one, or his accomplice, for no innocent leviathan could
be permitted by the fates to be caught by man."[9] So, also, the
Malagasy will never kill a crocodile, except in retaliation for one of
their friends or neighbours who has been destroyed by a crocodile.
"They believe that the wanton destruction of one of these reptiles
will be followed by the loss of human life, in accordance with the
principle of _lex talionis_. The inhabitants living in the
neighbourhood of the lake Itàsy, to the west of the central province,
are accustomed to make a yearly proclamation {253} to the crocodiles,
warning them that they shall revenge the death of some of their
friends by killing as many _voày_ in return, and warning the
well-disposed crocodiles to keep out of the way, as they have no
quarrel with them, but only with their evil-minded relatives who have
taken human life."[10]
[Footnote 7: Harmon, _Journal of Voyages and Travels in the Interior
of North America_, p. 327. Southey, _History of Brazil_, i. 223. _Cf._
Bastian, _Der Mensch in der Geschichte_, iii. 25.]
[Footnote 8: Macrae, 'Account of the Kookies,' in _Asiatick
Researches_, vii. 189.]
[Footnote 9: Perham, 'Sea Dyak Religion,' in _Journal of the Straits
Branch of the Royal Asiatic Society_, No. 10, p. 221 _sq._ _Cf._
Frazer, _Golden Bough_, ii. 390.]
[Footnote 10: Sibree, _The Great African Island_, p. 269.]
Animals are not only exposed to the blood-feud, but are often exposed
to regular punishment. This is the case among the Mambettu in Central
Africa. Casati mentions the following instance:--"A goat was chased
and persecuted by a dog, and in the fight for self-defence the latter
received a thrust from the goat's horn. The poor dog, which was the
valuable property of a powerful man, died shortly after. This serious
matter was much discussed and commented upon, and finally referred to
the king for judgment. The poor goat was sentenced to be slaughtered
before its victim's corpse, its flesh was served to the Mambettu [that
is, people of the superior race], and that of the dog to the Mege
[that is, people of the conquered race]."[11] Among the Maori,
according to Polack, the crime of impiety is not confined to man only,
but even a pig straying over a sacred place incurs the punishment of
death.[12] In Muhammedan East Africa, some time ago, a dog was
publicly scourged for having entered a mosque.[13] The Bogos kill a
bull or cow which causes the death of a man.[14] According to the
native code of Malacca, if a buffalo or a head of cattle "be tied in
the forest, in a place where people are not in the habit of passing,
and there gore anybody to death, it shall be put to death"; but the
owner of the animal shall not be held liable.[15] According to Hebrew
law, "if an ox gore a man or a woman, that they die: then the ox shall
be surely stoned, and his flesh shall not be eaten"; and, in the case
of sexual intercourse {254} between a man, or woman, and a beast, not
only the human offender, but the beast, is to be put to death.[16] It
is prescribed in the Vendîdâd that, if a mad dog which bites without
barking, smite a sheep or wound a man, "the dog shall pay for the
wound of the wounded as for wilful murder."[17] Plato had undoubtedly
borrowed from Attic custom or law the idea which underlies the
following regulation in his 'Laws':--"If a beast of burden or other
animal cause the death of any one, except in the case of anything of
that kind happening to a competitor in the public contests, the
kinsman of the deceased shall prosecute the slayer for murder, and the
wardens of the country, such, and so many as the kinsman appoint,
shall try the cause, and let the beast when condemned be slain by
them, and let them cast it beyond the borders."[18] In various
European countries animals have been judicially sentenced to death,
and publicly executed, in retribution for injuries inflicted by them.
Advocates were assigned to defend the accused animals, and the whole
proceedings, trial, sentence, and execution, were conducted with all
the strictest formalities of justice.[19] These proceedings seem to
have been particularly common from the end of the thirteenth till the
seventeenth century; the last case in France occurred as late as
1845.[20] Not only domestic animals, but even wild ones, were thus put
on trial.[21] "In 1565 the Arlesians asked for the expulsion of the
grasshoppers. The case came before the Tribunal de l'Officialité, and
Maître Marin was assigned to the insects as counsel. He defended his
clients with much zeal. Since the accused had been created, he argued
that they were justified in eating what was necessary to them. The
opposite counsel cited the serpent in the Garden of Eden, and sundry
other animals {255} mentioned in Scripture, as having incurred severe
penalties. The grasshoppers got the worst of it, and were ordered to
quit the territory, with a threat of anathematisation from the altar,
to be repeated till the last of them had obeyed the sentence of the
honourable court."[22] From an earlier period we have records of
maledictions and excommunications of vermin and obnoxious insects. In
1120, a bishop of Laon is reported to have excommunicated the
caterpillars which were ravaging his diocese, with the same formula as
that employed the previous year by the Council of Rheims in cursing
the priests who persisted in marrying in spite of the canons.[23] Such
maledictions and excommunications, however, were probably regarded
rather as magical means of expulsion than as punishments.[24] Not long
ago, when swarms of locusts ravaged the gardens of Tangier, the
Shereef of Wazzan expelled the injurious animals by spitting into the
mouth of one of them.
[Footnote 11: Casati, _Ten Years in Equatoria_, i. 176.]
[Footnote 12: Polack, _Manners and Customs of the New Zealanders_,
i. 240.]
[Footnote 13: von Amira, _Thierstrafen und Thierprocesse_, p. 30.]
[Footnote 14: Munzinger, _Die Sitten und das Recht der Bogos_, p. 83.]
[Footnote 15: Newbold, _British Settlements in the Straits of
Malacca_, ii. 257.]
[Footnote 16: _Exodus_, xxi. 28 _sq._ _Leviticus_, xx. 15 _sq._]
[Footnote 17: _ Vendîdâd_, xiii. 31. _Cf._ _ibid._ xiii. 32 _sqq._;
_Yasts_, xxiv. 44.]
[Footnote 18: Plato, _Leges_, ix. 873.]
[Footnote 19: Chambers, _Book of Days_, i. 127. Pertile, 'Gli animali
in giudizio,' in _Atti del R. Instituto Veneto_, ser. vi. vol. iv. 139. ]
[Footnote 20: von Amira, _Thierstrafen_, pp. 2, 15, 16, 28 _sq._ In
England such proceedings seem to have hardly occurred at all (_ibid._
p. 15), but, as we shall see, an animal which caused the death of a
man was forfeited as deodand.]
[Footnote 21: See Chambers, _op. cit._ i. 127 _sq._]
[Footnote 22: Marlinengo-Cesaresco, _Essays in the Study of
Folk-Songs_, p. 183 _sq._]
[Footnote 23: Desmaze, _Les pénalités anciennes_, p. 31 _sq._]
[Footnote 24: This is the opinion of von Amira, who, however--as it
seems to me, without sufficient evidence--suggests that the
maledictions did not refer to ordinary animals, but to human souls or
devils in disguise (_Thierstrafen_, p. 16 _sqq._).]
It has been suggested that the mediæval practice of punishing animals
after human fashion was derived from the Mosaic law.[25] But this
hypothesis does not account for the comparatively late appearance of
the practice, nor for the fact that, in some cases, other punishments
short of death were inflicted upon offending beasts.[26] It seems much
more probable that the procedure in question developed out of an
ancient European custom, to which it stood in the relationship of
punishment to revenge.[27] According to the customs or laws of various
so-called Aryan peoples--Greeks,[28] Romans,[29] Teutons,[30]
Celts,[31] Slavs,[32]--an {256} animal which did some serious damage,
especially if it caused the death of a man, was to be given up to the
injured party, or his family, obviously in order that it might be
retaliated upon.[33] According to the Welsh Laws, "that is the only
case in which the murderer is to be given up for his deed."[34] The
fact that afterwards, in the later Middle Ages, this form of reprisal
was in certain instances transformed into regular punishment, only
implies that the principle according to which punishment succeeded
vengeance in the case of human crimes was, by way of analogy, extended
to injuries committed by animals.
[Footnote 25: _Ibid._ pp. 4, 47 _sqq._]
[Footnote 26: Pertile, _loc. cit._ p. 148.]
[Footnote 27: _Cf._ Brunner, _Forschungen zur Geschichte des deutschen
und französischen Rechtes_, p. 517 _sqq._]
[Footnote 28: Plutarch, _Vita Solonis_, 24. Xenophon, _Historiæ
Græcæ_, ii. 4. 41.]
[Footnote 29: _Institutiones_, iv. 9. _Digesta_, ix. 1.]
[Footnote 30: _Lex Salica_ (cod. i.), 36. _Lex Ripuariorum_, 46.
Grimm, _Deutsche Rechtsalterthümer_, p. 664 _sqq._ Brunner,
_Forschungen_, p. 513 _sqq._]
[Footnote 31: _Ancient Laws of Ireland_, i. 161; iv. 177, 179, 181.
_Welsh Laws_, iv. i. 17 (_Ancient Laws and Institutes of Wales_,
p. 391).]
[Footnote 32: Macieiowski, _Slavische Rechtsgeschichte_, iv. 333.]
[Footnote 33: See _Lex Wisigothorum_, viii. 4. 20; _Schwabenspiegel_,
Landrechtbuch, 204; Dirksen, _Civilistische Abhandlungen_, i. 104; von
Jhering, _Geist des römischen Rechts_, i. 123; Hepp, _Die Zurechnung
auf dem Gebiete des Civilrechts_, p. 103; Grimm, _Deutsche
Rechtsalterthümer_, p. 664; Brunner, _Deutsche Rechtsgeschichte_, ii.
556; _Idem_, _Forschungen_, p. 513.]
[Footnote 34: _Welsh Laws_, iv. 1. 17 (_Ancient Laws and Institutes of
Wales_, p. 391).]
There has been considerable diversity of opinion concerning the
purpose of inflicting punishments upon animals. Some writers suggest
that it was possibly done with a view to deterring other animals from
committing similar injuries.[35] According to others, the animal was
executed in order that the hateful act should be forgotten; Gratian,
referring to St. Augustine,[36] says, "Non propter culpam, sed propter
memoriam facti pecus occiditur, ad quod mulier accesserit."[37] A
theory which has gained much adherence explains the punishment as a
symbolic act, performed for the purpose of inspiring horror of the
crime into the minds of men.[38] M. Thonissen maintains that, at
Athens, "on frappait l'animal auteur d'un homicide, afin que le
peuple, en voyant périr un être privé de raison, conçut une grande
horreur pour l'effusion du sang humain."[39] It has also been supposed
that the animal was punished with intention to intimidate those {257}
who were responsible for its acts,[40] or that it was killed because
it was dangerous.[41] But the true solution of the problem seems
simple enough. The animal had to suffer on account of the indignation
it aroused. It was regarded as responsible for its deed.[42] In early
records the punishment is frequently spoken of as an act of
"justice";[43] and the protests of Beaumanoir and others against this
opinion[44] only show that it was held in good earnest, if not by all,
at least by many. From certain details we can also see how closely the
responsibility ascribed to animals resembled the responsibility of
men. In some of the texts of the Salic law the animal is spoken of as
"auctor criminis."[45] In an ancient Irish law-tract it is said that,
when a bee has blinded a person's eye, the whole hive "shall pay the
fine," and "the many become accountable for the crime of one, although
they all have not attacked."[46] Youth was a ground for acquittal, as
appears from a case which occurred at Lavegny in 1457, when a sow and
her six young ones were tried on a charge of their having murdered and
partly eaten a child: whilst the sow, being found guilty, was
condemned to death, the young pigs were acquitted on account of their
youth and the bad example of their mother.[47] In Burgundy, a
distinction was made between a mischievous dog that entered a room
through an open door and one that committed a burglary; the latter was
a _larron_, and was to be punished as such.[48] The repetition of a
crime aggravated the punishment;[49] {258} and the animal "principal"
was punished more severely than the "accessories.[50]
[Footnote 35: Leibniz, _Essais de Theodicée_, p. 182 _sq._ Lessona,
quoted by d'Addosio, _Bestie delinquenti_, p. 145.]
[Footnote 36: St. Augustine, _Quæstiones in Leviticum_, 74 (_ad Lev._
xx. 16): "Nam pecora inde credendum est jussa interfici, quia tali
flagitio contaminata, indignam refricant facti memoriam" (Migne,
_Patrologiæ cursus_, xxxiv. 709).]
[Footnote 37: Gratian, _Decretum_, ii. 15. 1. 4. _Cf._ _Mishna_, fol.
54, quoted by Rabbinowicz, _Législation criminelle du Talmud_, p. 116.]
[Footnote 38: Ayrault, _Des procès faicts au cadaver, aux cendres, à
la mémoire, aux bestes brutes_, fol. 24. Ortolan, _Éléments du droit
pénal_, p. 188. Tissot, _Le droit pénal_, i. 19 _sq._]
[Footnote 39: Thonissen, _Le droit pénal de la république Athénienne_,
p. 414.]
[Footnote 40: Du Boys, quoted by d'Addosio, _op. cit._ p. 139.]
[Footnote 41: Lessona, quoted _ibid._ p. 145.]
[Footnote 42: _Cf._ Post, _Die Grundlagen des Rechts_, p. 359;
Friedrichs, 'Mensch und Person,' in _Das Ausland_, 1891, pp. 300, 315;
and, especially, d'Addosio, _op. cit._ p. 146 _sqq._: "Nel medioevo si
punì l'animale perchè lo si ritenne in certo modo _conscio_ delle sue
azioni, in certo modo _libero_, in certo modo _responsabile_."]
[Footnote 43: von Amira. _op. cit._ p. 9.]
[Footnote 44: Beaumanoir, _Les coutumes du Beauvoisis_, lxix. 6, vol.
ii. 485 _sq._ Chambers, _op. cit._ i. 127. Lichtenberg, _Vermischte
Schriften_, iv. 481.]
[Footnote 45: _Lex Salica_, edited by Hessels, coll. 209-212, 215.]
[Footnote 46: _Ancient Laws of Ireland_, iv. 179.]
[Footnote 47: Chambers, _op. cit._ i. 128.]
[Footnote 48: _Ancien Coutumier de Bourgogne_, 23 (_Revue historique
de droit français et étranger_, iii. 549): "Il deust hauoir faire
justice del larron."]
[Footnote 49: Pertile, _loc. cit._ p. 148: "La _Carta de Logu_
d'Eleonora giudicessa d'Arborea (1395) prescrive: che venendo trovato
un asino in danno sui fondi altrui, per la prima volta gli si tagli un
orecchio; la seconda, l'altro; e la terza, si confischi la bestia
consegnandola alla corte principesca." _Cf._ _Vendîdâd_,
xiii. 32 _sqq._]
[Footnote 50: d'Addosio, _op. cit._ p. 16.]
Considering the feelings to which even the cultured mind is
susceptible with reference to a mischievous beast, it is not difficult
to understand the attitude of the ignorant. The savage, not only
momentarily, while in a rage, but permanently and in cold blood,
obliterates the boundaries between man and beast. He regards all
animals as practically on a footing of equality with man. He believes
that they are endowed with feelings and intelligence like men, that
they are united into families and tribes like men, that they have
various languages like human tribes, that they possess souls which
survive the death of the bodies just as is the case with human souls.
He tells of animals that have been the ancestors of men, of men that
have become animals, of marriages that take place between men and
beasts. He also believes that he who slays an animal will be exposed
to the vengeance either of its disembodied spirit, or of all the other
animals of the same species which, quite after human fashion, are
bound to resent the injury done to one of their number.[51] Is it not
natural, then, that the savage should give like for like? If it is the
duty of animals to take vengeance upon men, is it not equally the duty
of men to take vengeance upon animals?
[Footnote 51: Tylor, _Primitive Culture_, i. 467 _sqq._ Frazer,
_Golden Bough_, ii. 389 _sqq._ Liebrecht, _Zur Volkskunde_, p. 17.
Achelis, _Moderne Völkerkunde_, p. 373 _sqq._ _Idem_, 'Animal
Worship,' in _Open Court_, xi. 705 _sq._ Waitz, _Anthropologie der
Naturvölker_, ii. 180 (Negroes). von den Steinen, _Unter den
Naturvölkern Zentral-Brasiliens_, p. 351. Im Thurn, _Among the Indians
of Guiana_, p. 350 _sqq._ Dorman, _Origin of Primitive Superstitions_,
pp. 223, 253. Lumholtz, _Unknown Mexico_, i. 331 (Tarahumares).
Mooney, 'Myths of the Cherokee,' in _Ann. Rep. Bur. Ethn._ xix. pp.
250, 261 _sq._ Nelson, 'Eskimo about Bering Strait,' _ibid._ xviii.
423. Hose and McDougall, 'Relations between Men and Animals in
Sarawak,' in _Jour. Anthr. Inst._ xxxi. 173 _sqq._, especially
p. 205 _sq._]
Nor are these beliefs restricted to savages. Muhammedans maintain, not
only that animals will share with men the general resurrection, but
that they will be judged according to their works. Their tradition
says that God "will raise up animals at the last day to receive {259}
reward and to show His perfection and His justice. Then the hornless
goat will be revenged on the horned one."[52] We can hardly wonder
that the Zoroastrian law inflicted punishments on dogs which hurt men
or animals, when we read in the Vendîdâd that a dog has the characters
of eight sorts of people.[53] The fable and the _Märchen_ for a long
time related in good earnest their stories of animals that behaved
exactly like men.[54] Even to this day, in certain districts of
Europe, as soon as a peasant is dead, it is customary for his heir to
announce the change of ownership to every beast in the stall, and to
the bees also;[55] and in some parts of Poland, when the corpse of the
rustic proprietor is being carried out, all his cattle are let loose,
that they may take leave of their old master.[56] In the Middle Ages
animals were sometimes accepted as witnesses; a man who was accused of
having committed a murder in his house appeared before the tribunal
with his cat, his dog, and his cock, swore in their presence that he
was innocent, and was acquitted.[57] It was not only the common people
that ascribed intelligence to beasts. According to Porphyry, all the
philosophers who have endeavoured to discover the truth concerning
animals have acknowledged that they to a certain extent participate of
reason;[58] and the same idea is expressed by Christian writers of a
much later date. In the sixteenth century, Benoît wrote that animals
often speak.[59] In the middle of the following century, Hieronymus
Rorarius published a book entitled 'Quod animalia bruta ratione
utantur melius homine.' And about the same time Johann Crell, in his
'Ethica Christiana,' expressed the opinion that animals at all events
possess faculties analogous to reason and free-will, that they have
something similar to virtues and vices, that they {260} deserve
something like rewards and punishments, and are consequently punished
by God and man.[60] This, as it seems to me, is the correct
explanation of the mediæval practice of punishing animals, even
though, in some cases, as M. Ménabréa observes, the obnoxious animal
was regarded as an embodiment of some evil spirit and was punished as
such.[61] The beast or insect was retaliated upon for the simple
reason that it was regarded as a rational being.
[Footnote 52: _Koran_, vi. 38. Sell, _Faith of Islám_, p. 223.]
[Footnote 53: _Vendîdâd_, xiii. 44 _sqq._]
[Footnote 54: See Grimm, _Reinhart Fuchs_, p. i. _sqq._]
[Footnote 55: Ralston, _Songs of the Russian People_, p. 315. Wuttke,
_Der deutsche Volksaberglaube der Gegenwart_, p. 428.]
[Footnote 56: Ralston, _op. cit._ p. 318.]
[Footnote 57: Michelet, _Origines du droit français_, pp. 76, 279
_sq._ Chambers, _op. cit._ i. 129.]
[Footnote 58: Porphyry, _De abstinentia ab esu animalium_, iii. 6.]
[Footnote 59: Benoît, quoted by d'Addosio, _op. cit._ p. 214.]
[Footnote 60: Crell, _Ethica Christiana_, ii. 1, p. 65 _sq._:--"Hinc
aliquid etiam virtuti et vitio simile, seu recte et prave factum:
quorum illud est, cum bruta naturæ suæ ductum sequuntur, hoc cum a
naturali via exorbitant. Unde tandem etiam aliquid **præmio aut
p[oe]næ, et huic quidem maxime simile. Unde bestias etiam a Deo
punitas, aut p[oe]nas certas lege illis constitutas, cernimus."]
[Footnote 61: Ménabréa, _De l'origine de la forme et de l'esprit des
jugements rendus au moyen-age contre les animaux_, p. 35.]
At the earlier stages of civilisation even inanimate things are
treated as if they were responsible agents. The Kukis take revenge not
only on a murderous tiger, but on a murderous tree. "If a man should
happen to be killed, by an accidental fall from a tree, all his
relations assemble, and cut it down; and however large it may be, they
reduce it to chips, which they scatter in the winds, for having, as
they say, been the cause of the death of their brother."[62] Among the
aborigines of Western Victoria, "when the spear or weapon of an enemy
has killed a friend, it is always burnt by the relatives of the
deceased; but those captured in battle are kept, and used by the
conquerors."[63] The North American Redskins, when struck with an
arrow in battle, "will tear it from the wound, break and bite it with
their teeth, and dash it on the ground."[64] The British Guiana
Indian, when hurt either by falling on a rock, or by the rock falling
on him, "attributes the blame, by a line of argument still not
uncommon in more civilised life, to the rock."[65] The gods of the
Vedic age cursed the trees which had injured them.[66] Xerxes
commanded {261} that the Hellespont should be stricken with three
hundred lashes,[67] and Cyrus "wreaked his vengeance" on the river
Gyndes by dispersing it through three hundred and sixty channels.[68]
Pausanias relates that when Theagenes had died, one of his enemies
went up to his statue every night, and whipped the brass. At last,
however, "the statue checked his insolence by falling on him; but the
sons of the deceased prosecuted the statue for murder. The Thasians
sank the statue in the sea, herein following the view taken by Draco,
who, in the laws touching homicide which he drew up for the Athenians,
enacted that even lifeless things should be banished if they fell on
anybody and killed him."[69] As Dr. Frazer remarks, the punishment of
inanimate objects for having accidentally been the cause of death was
probably much older than Draco.[70] At Athens there was a special
tribunal for the purpose.[71] Demosthenes states that, if a stone or a
piece of wood or iron or any such thing fell and struck a man, and the
person who threw the thing was not known, but the people knew, and
were in possession of, the object which killed the man, that object
was brought to trial at the court of the Prytaneum.[72] Plato lays
down the following rule in his 'Laws':--"If any lifeless thing deprive
a man of life, except in the case of a thunderbolt or other fatal dart
sent from the gods,--whether a man is killed by lifeless objects
falling upon him, or by his falling upon them, the nearest of kin
shall appoint the nearest neighbour to be a judge, and thereby acquit
himself and the whole family of guilt. And he shall cast forth the
guilty thing beyond the border."[73] Teutonic law, which still
recognised the principle of private revenge, treated the inanimate
murderer with less ceremony.[74] According to the Laws of Alfred, when
men were at work together in {262} a forest, and by misadventure one
let a tree fall on another, which killed him, the tree belonged to the
dead man's kinsfolk if they took it away within thirty days.[75] Later
on, in England, a thing by which death was caused was "forfeited to
God, that is to the King, God's Lieutenant on earth, to be distributed
in works of charity for the appeasing of God's wrath."[76] This law
remained in force till 1846.[77]
[Footnote 62: Macrae, in _Asiatick Researches_, vii. 189 _sq._]
[Footnote 63: Dawson, _Australian Aborigines_, p. 53.]
[Footnote 64: Robertson, _History of America_, i. 351 _sq._]
[Footnote 65: Im Thurn, _op. cit._ p. 354.]
[Footnote 66: Oldenberg, _Religion des Veda_, p. 518.]
[Footnote 67: Herodotus, vii. 35.]
[Footnote 68: _Ibid._ i. 190.]
[Footnote 69: Pausanias, vi. 11. 6. _Cf._ _ibid._ v. 27. 10.]
[Footnote 70: Frazer, _Pausanias_, ii. 371.]
[Footnote 71: Aristotle, _De republica Atheniensium_, 57. Pausanias,
i. 28. 10.]
[Footnote 72: Demosthenes, _Contra Aristocratem_, 76, p. 645.]
[Footnote 73: Plato, _Leges_, ix. 873 _sq._]
[Footnote 74: See Trummer, _Vorträge über Tortur, &c._ i. 376 _sq._
Brunner, _Forschungen_, p. 521 _sqq._]
[Footnote 75: _Laws of Alfred_, ii. 13.]
[Footnote 76: Coke. _Third Part of the Institutes of the Laws of
England_, p. 57.]
[Footnote 77: Stephen, _History of the Criminal Law of England_, iii.
78. Pollock and Maitland, _History of English Law before the Time of
Edward I._ ii. 473.]
In some of these cases superstitious dread may have been a motive for
destroying or banishing the instrument of death. There are facts which
prove that such an object is looked upon as a source of danger.
According to the Ripuarian law, people are forbidden to make use of a
thing which has been "auctor interfectionis";[78] and in Norway, in
quite modern times, sickles, axes, and other objects with which men
have been killed, have been seen lying about abandoned and unused.[79]
Again, among the aborigines of West Australia, if a person has been
killed by a thrust of the native wooden spear, _ghici_, his
country-men think that his soul remains in the point of the weapon
which caused his death, and they burn it after his burial, so that the
soul may depart.[80] But it is also obvious that an inanimate thing
which is the cause of a hurt is apt to evoke a genuine feeling of
resentment. We kick the chair over which we stumble, we curse the
stone which hurts us; Dr Nansen says that, when he was crossing
Greenland, it would have caused him "quite real satisfaction" to
destroy a sledge which was **"heavy to draw."[81] When we thus behave
as if the offending object were capable of feeling our resentment, we
for a moment vaguely believe that it is alive.[82] But our anger very
soon passes {263} away when we realise the true nature of its object.
The case is different with men at earlier stages of civilisation. They
do not suppose that things which hurt them are senseless; on the
contrary, they personify such things, not only hastily and
momentarily, but deliberately and permanently; hence their resentment
lasts. The Guiana Indian, says Sir E. F. Im Thurn, "attributes any
calamity which may happen to him to the intention of the immediate
instrument of its infliction, and he not unnaturally sees in the
action of this instrument evidence of its possession of a spirit."[83]
Trees, especially, are very commonly supposed to possess souls similar
to those of men, and are treated accordingly.[84] Pausanias writes
that "lifeless things are said to have inflicted of their own accord a
righteous punishment on men"; and as the best and most famous instance
of this he mentions the sword of Cambyses.[85] In England the
inanimate murderer was to be given up to the kinsmen of the slain
surely not as a compensation for the loss they had suffered, but as an
object upon which their vengeance was to be wreaked.[86] It was called
_la bane_, that is, "the slayer"; Bracton also calls it the
"malefactor."[87] It did not matter that its owner was recognised as
innocent; the punishment was not intended for him.[88] But in some
well-defined cases the "slayer" was free from guilt. A ship or other
vessel from which a person was drowned by misfortune was not forfeited
as deodand in case the accident happened in salt water--as Coke
indicates, on account of the great dangers to which the vessel is
exposed "upon the raging waves in respect of the wind and
tempest."[89] Moreover, if a boy under fourteen fell from a cart, or
from a horse, it was {264} no deodand, "because he was not of
discretion to look to himself," and so the cart, or horse, could not
be regarded as blamable. But if a cart ran over a boy, or a tree fell
upon him, or a bull gored him, it was deodand, because, apparently, it
went out of its way to kill him.[90] The fact of motion was one of
considerable importance in the case of animals and inanimate things,
as it was in the case of men. Thus Bracton would distinguish between
the horse which throws a man and the horse off which a man tumbles,
between the tree that falls and the tree against which a man is
thrown; and, as a general rule, a thing was not a deodand unless it
could be said "movere ad mortem."[91] If anybody was drowned by
falling from a ship under sail, not only the ship itself but the
things moving in it were deemed the cause of his death; whereas the
merchandise lying at the bottom of the vessel was not presumed to be
guilty, and consequently was not forfeited.[92] But if any particular
merchandise fell upon a person and caused his death, that merchandise
became a deodand, and not the ship.[93] As Mr. Holmes observes, a ship
is the most persistent example of motion giving personality to a
thing. "She" is still personified not only in common parlance, but in
courts of justice. In maritime cases of quite recent date judges of
great repute have pronounced the proceeding to be, not against the
owner, but "against the vessel for an offence committed by the
vessel."[94]
[Footnote 78: _Lex Ripuariorum_, lxx. 1.]
[Footnote 79: Liebrccht, _Zur Volkskund_, p. 313.]
[Footnote 80: Salvado, _Mémoires historiques sur l'Australie_,
p. 260 _sq._]
[Footnote 81: Nansen, _Eskimo Life_, p. 213 _sq._]
[Footnote 82: _Cf._ Dugald Stewart, _Philosophy of the Active and
Moral Powers of Man_, i. 125; Hall, 'Study of Anger,' in _American
Journal of Psychology_, x. 506 _sq._]
[Footnote 83: Im Thurn, _op. cit._ p. 354.]
[Footnote 84: See Frazer, _Golden Bough_, i. 169 _sqq._]
[Footnote 85: Pausanias, i. 28. 11.]
[Footnote 86: Pollock and Maitland, ii. 474.]
[Footnote 87: Bracton, _De Legibus et Consuetudinibus Angliæ_, fol.
116, vol. ii. 236 _sq._]
[Footnote 88: Holmes, _Common Law_, p. 25.]
[Footnote 89: Bracton, _op. cit._ fol. 122, vol. ii. 286 _sq._ Coke,
_op. cit._ p. 58. Sir James Stephen supposes (_op. cit._ iii. 78) that
"deodands were not in use at sea, because the local customs of England
did not extend to the high seas." But Coke expressly says (p. 58) that
there can be no deodand of the ship even "in _aqua salsa_, being any
arm of the sea, though it be in the body of the County."]
[Footnote 90: Coke, _op. cit._ p. 57. Hale, _History of the Pleas of
the Crown_, i. 422. Stephen, _op. cit._ iii. 78.]
[Footnote 91: Bracton, _op. cit._ fol. 136 b, vol. ii, 400 _sq._ Hale,
_op. cit._ i. 420 _sqq._ Pollock and Maitland, _op. cit._ ii. 474, n.
4. Stephen, _op. cit._ iii. 77. Holmes, _op. cit._ p. 25
_sq._]
[Footnote 92: Britton, i. 2. 14, vol. i. 16.]
[Footnote 93: Hale, _op. cit._ i. 422.]
[Footnote 94: Holmes, _op. cit._ p. 29.]
* * * * *
Like the lower animals, human beings in their earliest childhood are
incapable of forming notions of right and wrong, hence they are not
responsible for any act of theirs. Responsibility commences with the
dawn of a moral consciousness, and increases along with the evolution
of the intellect. Only by slow degrees the capacity of recognising
{265} act as right or wrong develops in the child. It soon learns that
certain acts are forbidden, but to know that an act is forbidden is
not the same as to recognise it as wrong. Nor does the knowledge of a
moral rule involve the ability to apply that rule in particular cases.
Nor can the youthful intellect be expected to possess the same degree
of foresight as the intellect of a grown-up man. Hence the total or
partial irresponsibility of childhood and early youth.
This irresponsibility is admitted by the laws of civilised nations. In
England,[95] Scotland,[96] and the United States,[97] children under
seven are absolutely exempt from punishment. In other modern countries
criminal responsibility does not commence until the age of nine,[98]
ten,[99] twelve,[100] or fourteen.[101] In some it is to be decided in
each case whether a child is punishable or not.[102] Thus the French
Code Pénal provides that a person under eighteen years of age shall
not be punished if it be decided that he has acted without discernment
(_sans discernement_) whereas, if he has acted with discernment (_avec
discernement_), his punishment is to be mitigated according to a fixed
scale.[103] Most laws set down an intermediate period between that of
complete irresponsibility and that of complete responsibility.
According to English law there is a presumption that children from
seven to fourteen are not possessed of the degree of knowledge
essential to criminality, though this presumption may be rebutted by
proof to the contrary;[104] and, according to the German
Strafgesetzbuch, a person from twelve to eighteen may be acquitted if,
when he committed the offence, he did {266} not possess the
intelligence requisite to know that it was criminal.[105] Other laws,
again, regard a certain age _eo ipso_ as a ground of extenuation, its
upper limit being fixed sometimes at sixteen,[106] sometimes at
eighteen,[107] sometimes at twenty,[108] sometimes at twenty-one.[109]
[Footnote 95: Stephen, _op. cit._ ii. 97 _sq._]
[Footnote 96: Erskine-Rankine, _Principles of the Law of Scotland_,
p. 546.]
[Footnote 97: Bishop, _Commentaries on the Criminal Law_, § 368, vol.
i. 209.]
[Footnote 98: Italian _Codice Penale_, art. 53. Spanish _Código Penal
reformado_, art. 8, § 2.]
[Footnote 99: Austrian (Finger, _op. cit._ i. 110), Dutch (van Hamel,
in _Législation pénale comparée_, edited by von Liszt, p. 444),
Portuguese (Tavares de Medeiros, _ibid._ p. 199), Russian (Foinitzki,
_ibid._ p. 529) law.]
[Footnote 100: German _Strafgesetzbuch_, art. 55.]
[Footnote 101: Swedish (Uppström, in _Législation pénale comparée_, p.
483), Finnish (Forsman, _ibid._ p. 565) law.]
[Footnote 102: French, Belgian, Ottoman law (Rivière, _ibid._ p. 7).]
[Footnote 103: _Code Pénal_, art. 66 _sqq._]
[Footnote 104: Stephen, _op. cit._ ii. 98. Kenny, _Outlines of
Criminal Law_, p. 50.]
[Footnote 105: _Strafgesetzbuch_, art. 56.]
[Footnote 106: Dutch law (van Hamel, _loc. cit._ p. 444).]
[Footnote 107: Spanish (_Código Penal reformado_, art. 9, § 2),
Swedish (Uppström, _loc. cit._ p. 484), Finnish (Forsman, _loc. cit._
p. 566) law.]
[Footnote 108: Austrian law (Finger, _op. cit._ i. 112).]
[Footnote 109: Italian (_Codice Penale_, art. 56), Russian (Foinitzki,
_loc. cit._ p. 529), Portuguese (Tavares de Medeiros, _loc. cit._ p.
199), Brazilian (_Codigo Penal dos Estados Unidos do Brazil_, art. 42,
§ 11) law. According to the _Ottoman Penal Code_, art. 40, "a guilty
person who has not arrived at the age of puberty may not be punished
with the punishment enacted against the offence of which he has been
found guilty."]
Roman law, as it seems, made out a _præsumptio juris_ of general
incapacity to commit a crime under puberty, rebuttable by evidence of
capacity, at any rate in the age called "next to puberty," the limits
of which are not clearly settled.[110] In the Irish Book of Aicill it
is said that "the man who incites a fool is he who pays for his
crime"; and to this the Commentary adds that a man is a fool till the
end of seven years, and a fool of half sense till the end of
fourteen[111]--a provision similar to that of Canon Law.[112]
According to Muhammedan law, the rule of talion is applicable only to
persons of age.[113] In China criminal responsibility is affected not
only by youth, but by old age as well. "Offenders whose age is not
more than seven nor less than ninety years, shall not suffer
punishment in any case, except in that of treason or rebellion." "Any
offender whose age is not more than ten nor less than eighty years, .
. . shall, when the crime is capital, but not {267} amounting to
treason, be recommended to the particular consideration and decision
of His Imperial Majesty." And "any offender whose age is not more than
fifteen, nor less than seventy years . . . shall be allowed to redeem
himself from any punishment less than capital, by the payment of the
established fine, except in the case of persons condemned to
banishment as accessories to the crimes of treason, rebellion, murder
of three or more persons in one family, or homicide by magic or
poisoning, upon all of which offenders the laws shall be strictly
executed."[114]
[Footnote 110: Clark, _Analysis of Criminal Liability_, p. 70. von
Jhering, _Das Schuldmoment im römischen Privatrecht_, p. 42 _sqq._
Mommsen _Römisches Strafrecht_, p. 75 _sq._ In the _Institutiones_ (i.
22) puberty is fixed at the completion of the fourteenth year for
males, and of the twelfth for females. According to the Law of the
Twelve Tables, children were punished for theft, though less severely
than adults (Gellius, _Noctes Atticæ_, xi. 18. 8. Pliny, _Historia
naturalis_, xviii. 3).]
[Footnote 111: _Ancient Laws of Ireland_, iii. 157.]
[Footnote 112: Katz, _Grundriss des kanonischen Strafrechts_, p. 8.]
[Footnote 113: Sachau, _Muhammedanisches Recht_, p. 762. Jaffur
Shurreef says (_Qanoon-e-Islam_, p. 36) that, among the Muhammedans of
India, previous to the period of puberty all the good and evil deeds
of boys and girls are laid to the charge of their parents.]
[Footnote 114: _Ta Tsing Leu Lee_, sec. xxii. _sq._]
According to early custom, children who have committed an injury are
sometimes,[115] but not always,[116] subject to the rule of
retaliation. Even in Homeric Greece, manslaughter committed in
childhood seems to have been visited with banishment for life.[117] In
other cases parents are responsible for the deeds of their
children.[118] Among the West African Fjort, for instance, children
are not themselves liable for their actions, but the injured party can
claim compensation from the parents if he likes to do so.[119] Among
the Teutons, "like the master for the slave, the father answered for
and made claims on behalf of the child. The ceremony of investing him
with arms as a _wehrhaft_, or weapon-bearing member of the community,
was the usual period for the assumption of rights and liabilities; and
this customarily (not always) took place at the age of twelve."[120]
According to ancient Swedish law, an injury was treated in the same
way as if it had been accidental, in case the offender was under the
age of fifteen;[121] according to the Icelandic Grágás, in case he was
{268} under sixteen.[122] However, as we have seen, accidental
injuries had to be paid for. Where offences are dealt with according
to the principle of compensation, it is impossible to decide how far
parents' liability for their children involves a recognition of the
moral irresponsibility of the child, or is simply due to the fact that
children, having no property, are themselves unable to compensate.
That the latter point of view was largely adopted by early custom and
law appears from the fact that, when compensation was succeeded by
punishment, the period of irresponsibility was reduced. In England the
age-limit of twelve years, which prevailed in Anglo-Norman days, was
afterwards disregarded in criminal cases.[123] We read in the
Northumberland Assize Roll, A.D. 1279, "Reginald . . . aged four, by
misadventure slew Robert . . . aged two; the justice granted that he
might have his life and members because of his tender age."[124] A
little later we hear that a child under the age of seven shall not
suffer judgment in a case of homicide.[125] In 1457, an infant of four
was held liable in trespass, though the language of the court shows a
disposition to exempt the infant.[126] From the eighteenth century
instances are recorded of a girl of thirteen who was burnt for killing
her mistress, and of a boy of eight who was hanged for arson.[127] In
1748, a boy of ten, being convicted for the murder of a girl of five,
was sentenced to death, and all the judges to whom this case was
reported agreed that, "in justice to the publick," the law ought to
take its course. The execution, however, was respited, and the boy at
last had the benefit of His Majesty's pardon.[128] It appears from
these facts, and from others of a similar character referring to
continental countries,[129] that there has been a tendency to raise
the age {269} at which full legal responsibility commences. And we
have reason to hope that legislation has not yet said its last word on
the subject.
[Footnote 115: Senfft, in Steinmetz, _Rechtsverhältnisse_, p. 449
(Marshall Islanders). Miklosich, 'Blutrache bei den Slaven,' in
_Denkschriften d. kaiserl. Akadamie d. Wissensch. Philos.-hist.
Classe_, Vienna, xxxvi. 131 (Turks of Daghestan). See also _supra_,
p. 217 _sq._]
[Footnote 116: Lang, in Steinmetz, _Rechtsverhältnisse_, p. 257
(Washambala).]
[Footnote 117: _Iliad_, xxiii. 85 _sqq._ _Cf._ Müller, _Dissertations
on the Eumenides_, p. 95.]
[Footnote 118: Nicole, in Steinmetz, _Rechtsverhältnisse_ p. 132
(Diakité-Sarrakolese). Marx, _ibid._ p. 357 (Amahlubi).]
[Footnote 119: Dennett, in _Jour. African Society_, i. 276.]
[Footnote 120: Wigmore, 'Responsibility for Tortious Acts,' in
_Harvard Law Review_, vii. 447.]
[Footnote 121: Wilda, _Strafrecht der Germanen_, p. 642 _sq._
Nordström, _Bidrag till den svenska samhälls-författningens historia_,
ii. 73. _Cf._ von Amira, _Nordgermanisches Obligationenrecht_,
i. 375 _sq._]
[Footnote 122: _Grágás_, Vigsloþi, 32, vol. ii. 63.]
[Footnote 123: Wigmore, _loc. cit._ p. 447.]
[Footnote 124: _Three Early Assize Rolls for the County of
Northumberland_, p. 323.]
[Footnote 125: Pollock and Maitland, _op. cit._ ii. 84.]
[Footnote 126: Wigmore, _loc. cit._ p. 447 _sq._ n. 7.]
[Footnote 127: Wilson, _History of Modern English Law_, p. 124.]
[Footnote 128: Foster, _Report of Crown Cases_, p. 70 _sqq._]
[Footnote 129: Trummer, _op. cit._ i. 428, 432 _sqq._ (Germany).
Jousse, _Traité de la justice criminelle de France_, ii. 617; Tissot,
_Droit pénal_, i. 30 (France).]
* * * * *
The principle that intellectual incapacity lessens or excludes
responsibility also applies to idiots and madmen. Though idiots are
able to acquire some knowledge of general moral rules, the application
of those rules is frequently beyond their powers;[130] and their
capacity of foreseeing the consequences of their acts is necessarily
very restricted. The same to some extent holds good of madmen; but, as
will be shown in the next chapter, there is another ground for their
irresponsibility besides the derangement of the intellect.
[Footnote 130: von Krafft-Ebing, _Lehrbuch der gerichtlichen
Psychopathologie_, p. 70.]
All modern laws admit that, at least under certain circumstances,
idiocy or madness exempts a person from criminal responsibility.
According to Roman law, lunatics were even free from the obligation of
paying indemnities for losses inflicted by them;[131] and so mild was
their lot at Rome, that it became a practice for citizens to shirk
their public duties by feigning madness.[132] Even savages recognise
that lunatics and maniacs are not responsible for their deeds. The
Abipones maintained that it was "wrong and irrational to use arms
against those who are not in possession of their senses."[133] Among
the North American Potawatomis many "are said to be 'foolish,' and not
sensible of crime."[134] The Iroquois are "persuaded that a person who
is not in his right senses is not to be reprehended, or at least not
to be punished."[135] Hennepin states that "they had one day in the
year which might be called the Festival of Fools; for in fact they
pretended to be mad, rushing from hut to hut, so that if they
ill-treated any one or carried off anything, they would say next day,
{270} 'I was mad; I had not my senses about me.' And the others would
accept this explanation and exact no vengeance."[136] The Melanesians
"are sorry for lunatics and are kind to them, though their remedies
are rough"; at Florida, for instance, a man went out of his mind,
chased people, stole things and hid them, but "no one blamed him,
because they knew that he was possessed by a _tindalo_ ghost."[137]
Among the West African Fjort fools and idiots are not responsible
personally for their actions.[138] Among the Wadshagga crimes
committed by lunatics are judged of more leniently than others.[139]
Among the Matabele madmen, being supposed to be possessed of a spirit,
"were formerly under the protection of the King."[140] In Eastern
Africa the natives say of an idiot or a lunatic, "He has fiends."[141]
El Hajj [(]Abdssalam Shabeeny states that in Hausaland "a man guilty
of a crime, who in the opinion of the judge is possessed by an evil
spirit, is not punished."[142]
[Footnote 131: von Vangerow, _Lehrbuch der Pandekten_, iii. 36. von
Jhering, _Das Schuldmoment im römischen Privatrecht_, p. 42. Thon,
_Rechtsnorm und subjectives Recht_, p. 106, n. 70.]
[Footnote 132: _Digesta_, xxvii. 10. 6.]
[Footnote 133: Dobrizhoffer, _Account of the Abipones_, ii. 234.]
[Footnote 134: Keating, _Expedition to the Source of St. Peter's
River_, i. 127.]
[Footnote 135: Charlevoix, _Voyage to North America_, ii. 24 _sq._]
[Footnote 136: Hennepin, _Description de la Louisiane_, Les M[oe]urs
des Sauvages, p. 71 _sq._]
[Footnote 137: Codrington, _Melanesians_, p. 218.]
[Footnote 138: Dennett, in _Jour. African Society_, i. 276.]
[Footnote 139: Merker, quoted by Kohler, in _Zeitschr. f. vergl.
Rechtswiss._ xv. 64.]
[Footnote 140: Decle, _Three Years in Savage Africa_, p. 154.]
[Footnote 141: Burton, _Lake Regions of Central Africa_, ii. 320.]
[Footnote 142: [(]Abdssalam Shabeeny, _Account of Timbuctoo and
Housa_, p. 49.]
The idea that derangement of the mind is due to spiritual possession,
often makes the idiot or the insane an object of religious
reverence.[143] The Macusis regard lunatics as holy.[144] The
Brazilian Paravilhana believe that idiots are inspired.[145] According
to Schoolcraft, "regard for lunatics, or the demented members of the
human race, is a universal trait among the American tribes."[146] So,
also, the African Barolong give a kind of worship to deranged persons,
who are said to be under the direct influence of a deity.[147] A
certain kind of madness was regarded by the ancient Greeks as a divine
gift, and consequently as "superior to a sane mind."[148] Lane states
that, among the modern {271} Egyptians, an idiot or a fool is vulgarly
regarded "as a being whose mind is in heaven, while his grosser part
mingles among ordinary mortals; consequently he is considered an
especial favourite of heaven. Whatever enormities a reputed saint may
commit (and there are many who are constantly infringing precepts of
their religion), such acts do not affect his fame for sanctity; for
they are considered as the results of the abstraction of his mind from
worldly things--his soul, or reasoning faculties, being wholly
absorbed in devotion--so that his passions are left without control.
Lunatics who are dangerous to society are kept in confinement, but
those who are harmless are generally regarded as saints."[149] The
same holds good of Morocco. Lunatics are not even obliged to observe
the Ramadan fast, the most imperative of all religious duties; of a
person who, instead of abstaining from all food till sunset, was
taking his meal in broad daylight in the open street, I heard the
people forgivingly say, "The poor fellow does not know what he is
doing, his mind is with God."[150]
[Footnote 143: _Cf._ Tylor, _Primitive Culture_, ii. 128.]
[Footnote 144: Andree, _Ethnographische Parallelen_, _Neue Folge_, p. 3.]
[Footnote 145: von Martius, _Beiträge zur Ethnographie Amerika's_,
i. 633.]
[Footnote 146: Schoolcraft, _Indian Tribes of the United States_,
iv. 49.]
[Footnote 147: Tylor, _Primitive Culture_, ii. 130.]
[Footnote 148: Plato, _Phædrus_, p. 244.]
[Footnote 149: Lane, _Manners and Customs of the Modern Egyptians_,
p. 237.]
[Footnote 150: _Cf._ Gråberg di Hemsö, _Specchio geografico, e
statistico dell' impero Marocco_, p. 182 _sq._]
On the other hand there are peoples who treat their lunatics in a very
different manner. The tribes of Western Victoria put them to death,
"as they have a very great dread of mad people."[151] In Kar Nicobar
madness is said to be the only cause for a death "penalty" that seems
to exist there, the afflicted individual being garrotted with two
pieces of bamboo;[152] but this practice seems to be a method of
getting rid of a dangerous individual, rather than a penalty in the
proper sense of the word. Among the Washambala a lunatic who commits
homicide is killed--as our informant observes, "not really on account
of his deed, but in order to prevent him from causing further
mischief."[153] Among the Turks of Daghestan, we are told, mad people
are subject to the rule of blood-revenge.[154]
[Footnote 151: Dawson, _op. cit._ p. 61.]
[Footnote 152: Distant, in _Jour. Anthr. Inst._ iii. 6.]
[Footnote 153: Lang, in Steinmetz, _Rechtsverhältnisse_, p. 257.]
[Footnote 154: Miklosich, _loc. cit._ p. 131.]
{272} In China lunatics are held responsible for their acts, although
the ordinary penalty applicable is commuted, as for instance, in
murder to imprisonment with fetters subject to His Majesty's pleasure.
But when a lunatic deliberately kills his parents or grandparents, a
representation will not serve; he is to be executed at once on the
spot where the murder was committed or on the city execution ground,
and the sentence--slicing to pieces--is to be carried out in all its
horror though the lunatic be already dead.[155]
[Footnote 155: Alabaster, _Commentaries on Chinese Law_, pp. 93, 96.
_Cf._ Douglas, _Society in China_, pp. 72, 122.]
According to ancient Welsh law, no vengeance is to be exercised
against an idiot,[156] nor is the king to have any fine for the act of
such a person.[157] But, "if idiots kill other persons, let _galanas_
[that is, blood-money] be paid on their behalf, as for other persons;
because their kindred ought to prevent them doing wrong."[158] The
Swedish provincial laws treated an injury committed by a lunatic in
the same manner as an injury by misadventure, provided that the
relatives of the injurer had publicly announced his madness, or,
according to some laws, had kept him tied in bonds which he had
broken; but if they had omitted to do so, the injury was treated as if
it had been done wilfully.[159] The Icelandic Grágás even lays down
the rule that a madman who has committed homicide shall suffer the
same punishment as a sane person guilty of the same crime.[160] In
England, in the times of Edward II. and Edward III., proof of madness
appears not to have entitled a man to be acquitted, at least in case
of murder, but to a special verdict that he committed the offence when
mad, and this gave him a right to pardon.[161] Such a right, indeed,
implies the admission that lunacy has a claim to forbearance; but from
what we know about the treatment of lunatics during the Middle Ages
and much later, we cannot be sure that the insane offender escaped
{273} all punishment. In a case which occurred in 1315, it was
presented that a certain lunatic wounded himself with a knife, and
finally died of his wounds; his chattels were confiscated.[162] Lord
Bacon says in his 'Maxims of the Law,' "If an infant within years of
discretion, or a madman, kill another, he shall not be impeached
thereof: but if he put out a man's eye, or do him like corporal hurt,
he shall be punished in trespass"; in these latter cases, "the law
doth rather consider the damage of the party wronged, than the malice
of him that was the wrong-doer."[163] In none of the German town-laws
before the beginning of the seventeenth century is there any special
provision for the offences of lunatics;[164] and, according to the
Statutes of Hamburg of 1605, though a madman who kills a person shall
not be punished as an ordinary manslayer, he is yet to be
punished.[165] In Germany recognised idiots and madmen were not seldom
punished with great severity, and even with death, in the seventeenth
and eighteenth centuries.[166] One of the darkest pages in the history
of European civilisation may be filled with a description of the
sufferings which were inflicted upon those miserable beings up to
quite modern times.[167] Many of them were burnt as witches or
heretics, or treated as ordinary criminals. For unruly and crazy
people, who nowadays would be comfortably located in an asylum,
whipping-posts and stocks were made use of. Shakespeare speaks of
madmen as deserving "a dark house and a whip";[168] and Swift observes
that original people like Diogenes and others, if they had lived in
his day, would have been treated like madmen, that is, would have
incurred "manifest danger of phlebotomy, and whips, and chains, and
dark chambers, and straw."[169] The writings of {274} Esquirol, the
parliamentary debates on the asylums of Bedlam and York, and the
reports presented under the auspices of La Rochefoucauld to the
National Assembly of 1789, contain a picture unique in its sadness--"a
picture of prisons in which lunatics, criminal lunatics, and criminals
are huddled together indiscriminately without regard to sex or age, of
asylums in which the maniac, to whom motion is an imperious necessity,
is chained in the same cell with the victim of melancholia whom his
ravings soon goad into furious madness, and of hospitals in which the
epileptic, the scrofulous, the paralytic and the insane sleep side by
side--a picture of cells, dark, foul, and damp, with starving,
diseased, and naked inmates, flogged into submission, or teased into
fury for the sport of idle spectators."[170]
[Footnote 156: _Dimetian Code_, ii. 1. 32 (_Ancient Laws and
Institutes of Wales_, p. 200).]
[Footnote 157: _Venedotian Code_, ii. 28. 3 (_ibid._ p. 98).]
[Footnote 158: _Welsh Laws_, iv. 1. 2 (_ibid._ p. 389).]
[Footnote 159: von Amira, _Nordgermanisches Obligationenrecht_, i. 375.]
[Footnote 160: _Grágás_, Vigsloþi, 33, vol. ii. 64.]
[Footnote 161: Stephen, _op. cit._ ii. 151.]
[Footnote 162: Wigmore, _loc. cit._ p. 446.]
[Footnote 163: Bacon, _Maxims of the Law_, reg. 7 (_Works_,
vii. 347 _sq._).]
[Footnote 164: Trummer, _op. cit._ i. 428.]
[Footnote 165: _Ibid._ i. 432.]
[Footnote 166: _Ibid._ i. 438 _sqq._]
[Footnote 167: See Tuke, _Chapters in the History of the Insane in the
British Isles_, p. 43 _sq._; Maudsley, _Responsibility in Mental
Disease_, p. 10 _sq._; Lecky, _History of European Morals_, ii. 85 _sqq._]
[Footnote 168: Shakespeare, _As you Like it_, iii. 2.]
[Footnote 169: Swift, _Tale of a Tub_, sec. 9 (_Works_, x. 163).]
[Footnote 170: Wood-Renton, 'Moral Mania,' in _Law Quarterly Review_,
iii. 340.]
Whatever share indifference to human suffering may have had in all
these atrocities and all this misery, it is likely that
thoughtlessness, superstition, and ignorance have had a much larger
share. We have noticed that, when a certain deed gives a shock to
public feelings, the circumstances in which it has been committed are
easily lost sight of. Considering that the Chinese punish persons who
have killed their father or mother by pure accident, it is not
surprising that they punish madmen who kill a parent wilfully. Even a
man like Smollett, the well-known writer, thought it would be neither
absurd nor unreasonable for the legislature to divest all lunatics of
the privilege of insanity in cases of enormity, and to subject them
"to the common penalties of the law."[171] Moreover, as we have seen,
madness is often attributed to demoniacal possession,[172] and in
other cases it is regarded as a divine punishment.[173] From a pagan
{275} point of view this would make the lunatic an object of pity or
dread, rather than of indignation; as the Roman legislator said, the
insane murderer ought not to be punished, because his insanity itself
is a sufficient penalty.[174] But in Christian Europe, where up to
quite recent times men were ever ready to punish God's enemies, a
lunatic, who was supposed to have the devil in him, or whose
affliction was regarded as the visitation of God upon heresy or
sin,[175] was a hateful individual and was treated accordingly.
Finally, we have to take into account that the sensibility of a
lunatic was thought to be inferior to that of a sane person;[176] that
the mental characteristics of insanity were little understood; and
that, in consequence, many demented persons were treated as if they
were sane because they were thought to be sane, and others, though
recognised as lunatics, were treated as responsible because they were
thought to be responsible. The history of the English law referring to
insanity bears sad testimony to the ignorance of which lunatics have
been victims in the hands of lawyers.
[Footnote 171: Smollett, quoted by Tuke, _op. cit._ p. 96.]
[Footnote 172: See also Doughty, _Arabia Deserta_, i. 258 _sq._;
Westermarck, 'Nature of the Arab _[vG]inn_ illustrated by the Present
Beliefs of the People of Morocco,' in _Jour. Anthr. Inst._ xxix, 254;
Andree, _op. cit._ p. 2 _sq._; Tuke, _op. cit._ p. 1; Pike, _History
of Crime in England_, i. 39; von Krafft-Ebing, _op. cit._ p. 5.]
[Footnote 173: Plato, _Leges_, ix. 854. Esquirol, _Des maladies
mentales_, i. 336.]
[Footnote 174: _Digesta_, i. 18. 14; xlviii. 9. 9.]
[Footnote 175: Wood-Renton, _loc. cit._ p. 339.]
[Footnote 176: _Ibid._ p. 339.]
From the year 1724 there is a dictum of an English judge to the effect
that a man who is to be exempted from punishment "must be a man that
is totally deprived of his understanding and memory, and doth not know
what he is doing, no more than an infant, than a brute, or a wild
beast."[177] From the beginning of the nineteenth century, the power
of distinguishing right from wrong in the abstract was regarded as the
test of responsibility;[178] whilst in the existing doctrine, dating
from the trial of M[(]Naughten in 1843, the question of knowledge of
right and wrong, instead of being put generally and indefinitely, is
put in reference to the particular act at the particular time of
committing it.[179] This series of doctrines certainly shows a
noteworthy progress {276} in discrimination. But at the same time the
answers given by the fourteen English judges to the questions put to
them by the House of Lords in consequence of M[(]Naughten's case still
display an ignorance which would nowadays be hardly possible. In reply
to the question--"If a person under an insane delusion as to existing
facts, commits an offence in consequence thereof, is he thereby
excused?"--the judges declared that, on the assumption "that he
labours under such partial delusion only, and is not in other respects
insane, . . . he must be considered in the same situation as to
responsibility as if the facts with respect to which the delusion
exists were real. For example, if under the influence of his delusion
he supposes another man to be in the act of attempting to take away
his life, and he kills that man, as he supposes, in self-defence, he
would be exempt from punishment. If his delusion was that the deceased
had inflicted a serious injury to his character and fortune, and he
killed him in revenge for such supposed injury, he would be liable to
punishment."[180] The mistake committed in this answer does not lie in
the conclusion, but in the premise. "Here," as Professor Maudsley
observes, "is an unhesitating assumption that a man, having an insane
delusion, has the power to think and act in regard to it reasonably;
that, at the time of the offence, he ought to have and to exercise the
knowledge and self-control which a sane man would have and exercise,
were the facts with respect to which the delusion exists real; that he
is, in fact, bound to be reasonable in his unreason, sane in his
insanity."[181] Modern science, however, teaches us another lesson. It
has shown that a delusion of the kind suggested never stands alone,
but is in all cases the result of a disease of the brain which
interferes more or less with every function of the mind, and that few
insane persons who do violence can be truly said to have a full
knowledge of the nature and quality of their acts at the time they are
performing {277} them.[182] A perhaps still greater defect in the
doctrine of the fourteen judges is the absence of all reference to the
influence of insane impulses; but with this subject we are not
concerned at present. In this connection my object has been merely to
show that the irresponsibility of the insane, in so far as it depends
on intellectual derangement, has been generally recognised in
proportion as their intellectual derangement has been recognised, and
that the exceptions to this rule are explicable from beliefs which,
though materially affecting the treatment of the insane, have no
reference to the principle of responsibility itself.
[Footnote 177: Howell, _Collection of State Trials_, xvi. 765.]
[Footnote 178: Harris, _Principles of the Criminal Law_, p. 18. Kenny,
_op. cit._ p. 53.]
[Footnote 179: Clark and Finnelly, _Reports of Cases decided in the
House of Lords_, x. 202.]
[Footnote 180: _Ibid._ x. 211.]
[Footnote 181: Maudsley, _op. cit._ p. 97.]
[Footnote 182: Griesinger, _Mental Pathology and Therapeutics_, p. 72
_sq._ Maudsley, _op. cit._ p. 96.]
* * * * *
There are temporary states of mind in which the agent no more knows
what he is doing than an idiot or a madman, such as somnambulism,
narcosis, fury. For these states, of course, the rule holds good, that
nobody is responsible for what he does in ignorance, although he may
be responsible for his ignorance. Responsibility in connection with
anger and rage will be more appropriately dealt with in another place.
I shall here restrict myself to the case of drunkenness.
A person is irresponsible, or only partly responsible, for what he
does when drunk, according as he is ignorant of the nature of his act,
as also in so far as the intoxicant contributed to the rise of some
powerful impulse which determined his will. If he commits an offence
in a state of extreme intoxication, he can reasonably be blamed only
for what he did when sober. If he made himself drunk for the purpose
of committing the offence, then the offence is intended, and he is
equally responsible for his act as if he had accomplished it
straightway. If he became intoxicated without any fault of his, for
instance, if he did not know, and could not know, the intoxicating
quality of the liquor which made him drunk, he is free from blame. But
in other cases he is guilty of heedlessness, or rashness, or, if he
foresaw the danger, of blamable indifference to {278} the probable
consequences of his act. This is the clear theory of the question. But
we cannot expect to find it accurately expressed in practice.
Very generally drunkenness is recognised as a ground of extenuation.
We hear from various sources that the North American Indians were
exceedingly merciful to intoxicated offenders. According to
Charlevoix, the Iroquois "suffer themselves to be ill used by drunken
people, without defending themselves, for fear of hurting them. If you
endeavour to shew them the folly of this conduct, they say, 'Why
should we hurt them? They know not what they do.'" Even "if a savage
kills another belonging to his cabin, if he is drunk (and they often
counterfeit drunkenness when they intend to commit such actions),[183]
all the consequence is, that they pity and weep for the dead. 'It is a
misfortune (they say), the murderer knew not what he did.'"[184] James
makes a similar statement with reference to the Omahas.[185] In his
description of the aborigines of Pennsylvania, Blome observes, "It is
rare that they fall out, if sober; and if drunk they forgive it,
saying, it was the drink, and not the man that abused them."[186]
Benjamin Franklin tells us of some Indians who had misbehaved in a
state of intoxication, and in consequence sent three of their old men
to apologise; "the orator acknowledged the fault, but laid it upon the
rum, and then endeavoured to excuse the rum."[187] The detestable
deeds which men did under the influence of _pulcre_, or the native
Mexican wine, the Aztecs attributed to the god of wine or to the wine
itself, and not in the least to the drunken man. Indeed, if anybody
spoke ill of or insulted an intoxicated person, he was liable to be
punished for disrespect to the god by which that person was supposed
to be possessed. {279} Hence, says Sahagun, it was believed, not
without ground, that the Indians made themselves drunk on purpose to
commit with impunity crimes for which they would have been punished if
they had committed them sober.[188]
[Footnote 183: _Cf._ Hennepin, _op. cit._ p. 71.]
[Footnote 184: Charlevoix, _op. cit._ ii. 23, 25. According to Loskiel
(_History of the Mission of the United Brethren among the Indians in
North America_, i. 16), the Iroquois, though they laid all the blame
on the rum, punished severely murder committed in drunkenness.]
[Footnote 185: James, _Expedition from Pittsburgh to the Rocky
Mountains_, i. 265.]
[Footnote 186: Blome, in Buchanan, _North American Indians_, p. 328.]
[Footnote 187: Franklin, _Autobiography_, ch. ix. (_Works_, i. 164).]
[Footnote 188: Sahagun, _Historia general de las cosas de Nueva
España_, i. 22, vol. i. 40.]
Among the Karens of India "men are not unfrequently killed in drunken
broils; but such cases are not allowed by Karen custom to be a cause
of action. No price can be demanded for persons who lose their lives
in such circumstances. It is argued there was no malice, no intention
to kill; and the person who died was perhaps as much to blame as the
man who killed him; and people are not well responsible for what they
do in a state of intoxication."[189] Among the Kandhs, "for wounds,
however serious, given under circumstances of extreme provocation, or
in a drunken squabble, slight compensation is awarded."[190] Among
some of the Marshall Islanders blood-revenge is generally not taken
for an act of homicide which has been committed in drunkenness,
compensation being accepted instead.[191] So, also, according to the
ancient law of the East Frisians, a man who has killed another when
drunk is allowed "to buy off his neck by a sum of money paid to the
king and to the relatives of the slain."[192]
[Footnote 189: Mason, in _Jour. As. Soc. Bengal_, xxxvii. pt. ii. 146.]
[Footnote 190: Macpherson, _Memorials of Service in India_, p. 82.]
[Footnote 191: Jung, quoted by Kohler, in _Zeitschr. f. vergl.
Rechtswiss._ xiv. 446.]
[Footnote 192: _Das Ostfriesische Land-Recht_, iii. 18.]
Roman law regarded drunkenness as a ground of extenuation;[193] the
Jurist Marcian mentions _ebrietas_ as an example of _impetus_, thereby
intimating that a drunken person, when committing a crime, should not
be put on the same footing with an offender acting in cold blood, and
calculating his act with clear consciousness.[194] In Canon law
drunkenness is said to be a ground which deserves the indulgence of a
reasonable judge, because whatever is done in that state is done
without consciousness on the part of the actor.[195] Indeed, had not
God shown {280} indulgence for the offence committed by Lot when
drunk?[196] Partly on the authority of Roman law, partly on that of
Canon law, the earliest practitioners of the Middle Ages followed the
principle that drunkenness is a ground of extenuation; and this
doctrine remained strongly rooted in the later jurisprudence, in which
a drunken person was likened to one under the influence of sleep, or
drunkenness was regarded as equivalent to insanity.[197] It was not
until the sixteenth century that a mere general rule, with regard to
drunkenness as a ground of extenuation, was felt to be insufficient.
Since the time of Clarus, especially, the opinion began to prevail,
that the effect of the highest degree of drunkenness was, indeed, to
exempt from the punishment of _dolus_, but that the offender was still
subject to the punishment of _culpa_, except in two cases, namely,
first, when he inebriated himself intentionally, and with a
consciousness that he might commit a crime while drunk, in which case
the drunkenness was not allowed to be any ground of exculpation at
all; and, secondly, when he became intoxicated without any fault on
his part, as, for example, in consequence of inebriating substances
having been mingled with his wine by his comrades, in which case he
was relieved even from the punishment of _culpa_.[198] These views, in
the main, gradually determined the German practice, and similar
opinions prevailed in the practice of Italy, Spain, Portugal, and the
Netherlands.[199] In the annals of Prussian criminal justice of 1824,
a case is reported of a man who was punished with only one year's
imprisonment for having killed his little child in a state of
drunkenness.[200] In other countries a different principle was acted
upon. An ordinance of Francis I. declared that drunkenness should not
in any case absolve from the ordinary punishment;[201] and this rule
was sanctioned and {281} applied by the later French jurisprudence.[202]
In the Code Pénal, the state of drunkenness is not mentioned as a
mitigating circumstance; yet the rigour of the law has been tempered
by the doctrine that intoxication produces a temporary insanity and
that every kind of insanity is a ground of exculpation.[203] In
England,[204] Scotland,[205] and the United States,[206] a state of
voluntary drunkenness is no excuse for crime. Speaking of a person who
commits homicide when drunk, Hale says that "by the laws of England
such a person shall have no privilege by this voluntary contracted
madness, but shall have the same judgment as if he were in his right
senses."[207] However, in a case where the intention with which the
act was done is the essence of the offence, the drunkenness of the
accused may be taken into account by the jury when considering the
motive or intent with which he acted.[208] According to Chinese law,
also, intoxication does not affect the question of responsibility.[209]
[Footnote 193: _Digesta_, xlviii. 19. 11. 2; xlix. 16. 6. 7. Mommsen,
_Römisches Strafrecht_, p. 1043.]
[Footnote 194: _Digesta_, xlviii. 19. 11. 2.]
[Footnote 195: Gratian, _Decretum_, ii. 15. 1. 7.]
[Footnote 196: _Ibid._ ii. 15. 1. 9.]
[Footnote 197: Mittermaier, _Effect of Drunkenness on Criminal
Responsibility_, p. 6.]
[Footnote 198: Clarus, _Practica criminalis_, qu. lx. nr. 11 (_Opera
omnia_, ii. 462).]
[Footnote 199: Mittermaier, _op. cit._ p. 7. Du Boys, _Histoire du
droit criminel de l'Espagne_, p. 290. Italian _Codice Penale_, art. 46
_sqq._ Spanish _Código Penal reformado_, art. 9, §6.]
[Footnote 200: _Zeitschr. f. die Criminal-Rechts-Pflege in den
Preussischen Staaten_, edited by Hitzig, iii. 60.]
[Footnote 201: Isambert, Decrusy, and Armet, _Recueil général des
anciennes lois françaises_, xii. 527.]
[Footnote 202: Mittermaier, _op. cit._ p. 8.]
[Footnote 203: _Ibid._ p. 12 _sq._ Rivière, _loc. cit._ p. 7.]
[Footnote 204: Stephen, _History of the Criminal Law of England_,
ii. 165.]
[Footnote 205: Hume, _Commentaries on the Law of Scotland_, i. 38.
Erskine-Rankine, _op. cit._ p. 545.]
[Footnote 206: Bishop, _op. cit._ § 400 _sq._ vol. i. 231 _sqq._]
[Footnote 207: Hale, _op. cit._ i. 32.]
[Footnote 208: Harris, _op. cit._ p. 21. Stephen, _Digest_, art. 32,
p. 22.]
[Footnote 209: Giles, _Strange Stories from a Chinese Studio_, ii. 30,
n. 2.]
The great forbearance with which injuries inflicted in a state of
intoxication are treated by various peoples at comparatively low
stages of civilisation, is no doubt, to some extent, due to lack of
foresight. Failing to anticipate the harmful consequences which may
follow from drunkenness, they also fail to recognise the culpability
of indulging in it. The American Indians are notorious drunkards, and
look upon drunkenness as a "delightful frolick."[210] Among the Kandhs
drunkenness is likewise universal, and their "orgies are evidently not
regarded as displeasing to their gods."[211] The belief that an
intoxicated person is possessed with a demon and acts under its
influence, also helps {282} to excuse him.[212] On the other hand,
where the law makes no difference between an offender who is sober and
an offender who is drunk, the culpability of the latter is exaggerated
in consequence of the stirring effect which the outward event has upon
public feelings. So great is the influence of the event that certain
laws, most unreasonably, punish a person both for what he does when
drunk and for making himself drunk. Thus Aristotle tells us that
legislators affixed double penalties to crimes committed in
drunkenness.[213] The same was done by Charles V., in an edict of
1531,[214] and by Francis I. in 1536.[215] Hardly more reasonable is
it that the very society which shows no mercy whatever to the
intoxicated offender, is most indulgent to the act of intoxication
itself when not accompanied by injurious consequences. Of course it
may be argued that drunkenness is blamable in proportion as the person
who indulges in it might expect it to lead to mischievous results. It
has also been said that, if drunkenness were allowed to excuse, the
gravest crimes might be committed with impunity by those who either
counterfeited the state or actually assumed it. Some people even
maintain that inebriation brings out a person's true character. In a
Chinese story we read, "Many drunkards will tell you that they cannot
remember in the morning the extravagances of the previous night, but I
tell you this is all nonsense, and that in nine cases out of ten those
extravagances are committed wittingly and with malice prepense."[216]
However, with all allowance for such considerations, I venture to
believe that in this, as in many other cases where an injury results
from want of foresight, the extreme severity of certain laws is
largely due to the fact that the legislator has been more concerned
with the external deed than with its source.
[Footnote 210: Adair, _History of the American Indians_, p. 5. Catlin,
_North American Indians_, ii. 251. Colden, in Schoolcraft, _Indian
Tribes_, iii. 191. Prescott, _ibid._ iii. 242. James, _op. cit._ i. 265.]
[Footnote 211: Campbell, _Wild Tribes of Khondistan_, p. 165.
Macpherson, _op. cit._ p. 81 _sq._]
[Footnote 212: _Cf._ Dorsey, 'Siouan Cults,' in _Ann. Rep. Bur. Ethn._
xi. 424.]
[Footnote 213: Aristotle, _Ethica Nicomachea_, iii. 5. 8.]
[Footnote 214: Damhouder, _Praxis rerum criminalium_, lxxxiv. 20,
p. 241.]
[Footnote 215: Isambert, Decrusy, and Armet, _op. cit._ xii. 527.]
[Footnote 216: Giles, _op. cit._ ii. 30.]
CHAPTER XI
MOTIVES
NO enlightened and conscientious moral judge can regard his judgment
as final, unless he know the motive, or motives, of the volition by
which his judgment is occasioned. But in ordinary moral estimates
little attention is paid to motives. Men desire that certain acts
should be performed, and that certain other acts should be abstained
from. The conative causes of acts or forbearances are not equally
interesting, and they are often hidden. They are considered only in
proportion as the moral judgment is influenced by reflection.
Take, for instance, acts which are performed from a sense of duty. It
is commonly said that a person ought to obey his conscience. Yet, in
point of fact, by doing so he may expose himself to hardly less
censure than does the greatest villain. The reason for this is not far
to seek. A man's moral conviction is to some extent an expression of
his character, hence he may be justly blamed for having a certain
moral conviction. And the blame which he may deserve on that account
is easily exaggerated, partly because people are apt to be very
intolerant concerning opinions of right and wrong which differ from
their own, partly owing to the influence which external events
exercise upon their minds.
Somewhat greater discrimination is shown in regard to motives
consisting of powerful non-volitional conations which in no way
represent the agent's character, but to which {284} he yields
reluctantly, or by which he is carried away on the spur of the moment.
In many such cases even the law--which regards it as no excuse if a
person commits a crime from a feeling of duty[1]--displays more or
less indulgence to the perpetrator of a harmful deed.
[Footnote 1: _Cf._ the case Reg. _v._ Morby, _Law Reports, Cases
determined in the Queen's Bench Division_, viii. 571 _sqq._]
Thus, in the eye of the law, compulsion is oftentimes a ground of
extenuation. Strictly speaking, a volition can never be compelled into
existence;[2] to act under compulsion really means to act under the
influence of some non-voluntary motive, so powerful that every
ordinary human will would yield to it. As Aristotle puts it, pardon is
given when "a man has done what he ought not to have done through fear
of things beyond the power of human nature to endure, and such that no
man could undergo them. And yet, perhaps, there are some things which
a man must never allow himself to be compelled to do, but must rather
choose death by the most exquisite torments."[3] This principle has
been in some degree recognised by legislation. In many cases of
felony, if a married woman commits the crime in the presence of her
husband, the law of England presumes that she acts under his coercion,
and therefore excuses her from punishment, unless the presumption of
law is rebutted by evidence;[4] but children and servants are not
acquitted if committing crimes by the command of a parent or a
master.[5] Besides the presumption made in favour of married women,
compulsion by threats of injury to person or property is recognised as
an excuse for crime only, as it seems, in cases in which the
compulsion is applied by a body of rebels or rioters, and in which the
offender takes a subordinate part in the offence.[6] In a time of
peace, on the other hand, though a man be violently assaulted, and
have no other possible {285} means of escaping death but by killing an
innocent person, if he commit the act he will be guilty of murder;
"for he ought rather to die himself, than kill an innocent."[7] It has
even been laid down as a general principle that "the apprehension of
personal danger does not furnish any excuse for assisting in doing any
act which is illegal."[8] But the English law relating to _duress per
minas_, and to constraint in general, seems to be harsher both than
most modern continental laws[9] and than Roman law.[10] Some of the
Italian practitioners were even of opinion that a person who committed
homicide by the command of his prince or some other powerful man was
exempt from all punishment.[11] According to the Talmud, any offence
perpetrated under compulsion or in mortal fear is excusable in the eye
of the law, excepting only murder and adultery.[12]
[Footnote 2: Bradley, _Ethical Studies_, p. 40, n. 1.]
[Footnote 3: Aristotle, _Ethica Nicomachea_, iii. i. 7 _sq._]
[Footnote 4: Hale, _History of the Pleas of the Crown_, i. 44 _sqq._
434. Harris, _Principles of the Criminal Law_, p. 25. Stephen,
_History of the Criminal Law of England_, ii. 105 _sq._]
[Footnote 5: Hale, _op. cit._ i. 44. Harris, _op. cit._ p. 26.]
[Footnote 6: Stephen, _op. cit._ ii. 106.]
[Footnote 7: Hale, _op. cit._ i. 51. Harris, _op. cit._ p. 24 _sq._]
[Footnote 8: Denman, C. J., in Reg. _v._ Tyler, reported in Carrington
and Payne, _Reports of Cases argued and ruled at Nisi Prius_, viii. 621.]
[Footnote 9: _Code Pénal_, art. 64; Chauveau and Hélie, _Théorie du
Code Pénal_, i. 534 _sqq._ Italian _Codice Penale_, art. 49. Spanish
_Código Penal reformado_, art. 8, § 9 _sqq._ Finger, _Compendium des
österreichischen Rechtes--Das Strafrecht_, i. 119. Foinitzki, in
_Législation pénale comparée_, edited by von Liszt, p. 530 (Russian
law). _Ottoman Penal Code_, art. 42.]
[Footnote 10: Mommsen, _Römisches Strafrecht_, p. 653. Janka, _Der
strafrechtliche Notstand_, p. 48.]
[Footnote 11: Janka, _op. cit._ p. 60. A different view, however, is
expressed by Covarruvias (_De matrimoniis_, ii. 3. 4. 6 _sq._ [_Opera
omnia_, i. 139]):--"Metus numquam excusat nec a mortali, nec a veniali
crimine. Peccatum maximum malum, nec eo quid grauius."]
[Footnote 12: Benny, _Criminal Code of the Jews according to the
Talmud Massecheth Synhedrin_, p. 125.]
Suppose, again, that the motive of breaking the law is what has been
called "compulsion by necessity." The old instance of shipwrecked
persons in a boat unable to carry them all is a standing illustration
of this principle. Sir James Stephen says, that "should such a case
arise, it is impossible to suppose that the survivors would be
subjected to legal punishment."[13] Yet, in a very similar case,
occurring in the year 1884, they were. Three men and a boy escaped in
an open boat from the shipwreck of the yacht _Mignonette_. After
passing eight days without food, and seeing no prospect of relief, the
men killed the boy, who was {286} on the verge of death, in order to
feed on his body. Four days later they were rescued by a passing ship;
and, on their arrival in England, two of the men were tried for the
murder of the boy. The defence raised was that the act was necessary
for the purpose of self-preservation. But it was held by the Court for
Crown Cases Reserved, that such necessity was no justification of the
act of causing death when there was a distinct intention to take away
the life of another innocent person. However, the sentence of death
was afterwards commuted by the Crown to six months' imprisonment.[14]
In the same case it was even said that if the boy had had food in his
possession, and the others had taken it from him, they would have been
guilty of theft.[15] Bacon's proposition that "if a man steal viands
to satisfy his present hunger, this is no felony nor larceny,"[16] is
not law at the present day.[17] It was expressly contradicted by Hale,
who lays down the following rule:--"If a person, being under necessity
for want of victuals, or clothes, shall upon that account
clandestinely, and _animo furandi_ steal another man's goods, it is
felony and a crime by the laws of England punishable with death; altho
the judge, before whom the trial is, in this case (as in other cases
of extremity) be by the laws of England intrusted with a power to
reprieve the offender before or after judgment, in order to the
obtaining the king's mercy."[18] Britton excuses "infants under age,
and poor people, who through hunger enter the house of another for
victuals under the value of twelve pence."[19] According to the
Swedish Westgöta-Lag, a poor man who can find no other means of
relieving himself and his family from hunger may thrice with impunity
appropriate food belonging to somebody else, but if he does so a
fourth time he is punished for theft.[20] The Canonist says,
"Necessitas legem non {287} habet"[21]--"Raptorem vel furem non facit
necessitas, sed voluntas."[22] This principle has the sanction of the
Gospel. Jesus said to the Pharisees, "Have ye not read what David did,
when he was an hungered, and they that were with him; How he entered
into the house of God, and did eat the shewbread, which was not lawful
for him to eat, neither for them which were with him, but only for the
priests?"[23]
[Footnote 13: Stephen, _op. cit._ ii. 108. So, also, according to
Bacon's _Maxims of the Law_, reg. 5 (_Works_, vii. 344), homicide is
in such a case justifiable.]
[Footnote 14: Reg. _v._ Dudley and Stephens, in _Law Reports, Cases
determined in the Queen's Bench Division_, xiv. 273 _sqq._]
[Footnote 15: _Ibid._ xiv. 276.]
[Footnote 16: Bacon, _Maxims of the Law_, reg. 5 (_Works_, vii. 343).]
[Footnote 17: Reg. _v._ Dudley and Stephens, in _Law Reports, Queen's
Bench Division_, xiv. 286.]
[Footnote 18: Hale, _op. cit._ i. 54.]
[Footnote 19: Britton, i. 11, vol. i. 42.]
[Footnote 20: _Westgöta-Lagen II._ þiufua bolker, 14, p. 164 _sq._]
[Footnote 21: Gratian, _Decretum_, iii. 1. 11.]
[Footnote 22: _Ibid._ iii. 5. 26.]
[Footnote 23: _St. Matthew_, xii. 1 _sqq._]
According to Muhammedan law, the hand is not to be cut off for
stealing any article of food that is quickly perishable, because it
may have been taken to supply the immediate demands of hunger.[24] We
are told that "no Chinese magistrate would be found to pass sentence
upon a man who stole food under stress of hunger."[25] In ancient
Peru, according to Herrera, "he that robb'd without need was banish'd
to the Mountains Andes, never to return without the Inga's leave, and
if worth it paid the value of what he had taken. He that for want
stole eatables only was reprov'd, and receiv'd no other punishment,
but enjoyn'd to work, and threatened, that if he did so again, he
should be chastiz'd by carrying a stone on his back, which was very
disgraceful."[26] We even hear of savages who regard "compulsion by
necessity" as a ground of extenuation. Among the West African Fjort
robbery of plantations, committed in a state of great hunger, is
exempt from punishment in case there is no deception or secrecy in the
matter; however, payment for damage done is expected.[27] Cook says of
the Tahitians:--"Those who steal clothes or arms, are commonly put to
death, either by hanging or drowning in the sea; but those who steal
provisions are bastinadoed. By this practice they wisely vary the
punishment of the same crime, when committed from different
motives."[28]
[Footnote 24: Lane, _Manners and Customs of the Modern Egyptians_,
p. 121.]
[Footnote 25: Giles, _Strange Stories from a Chinese Studio_, ii. 217,
n. 5.]
[Footnote 26: Herrera, _General History of the West Indies_, iv. 337.]
[Footnote 27: Dennett, in _Jour. African Society_, i. 276.]
[Footnote 28: Cook, _Journal of a Voyage round the World_, p. 41 _sq._]
{288} A special kind of self-preservation is self-defence. Here the
ground of justification is not merely the motive of the agent, but
also the wrongness or criminality of the act which he tries to
prevent. Hence the right of inflicting injuries as a necessary means
of self-preservation has been more generally recognised in the case of
self-defence than in other cases of "compulsion by necessity." "Vim vi
repellere" was regarded by the ancients as a natural right,[29] as a
law "non scripta, sed nata";[30] and the same view was taken by the
Canonist.[31] Even in the savage world self-defence and killing in
self-defence are not infrequently justified by custom.[32] But in
other instances the influence of the external event makes itself felt
also in the case of self-defence. Among the Fjort, though a person who
kills another in self-defence is exempt from punishment, he is
expected to pay damages.[33] Among the Hottentots self-defence is
regarded as a mitigating circumstance, but not as an excuse in the
full sense of the word.[34] Among other peoples it is not considered
at all.[35] Among the ancient Teutons a person who committed homicide
in self-defence had to pay _wer_;[36] and in Germany such a person
seems to have been subject to punishment still in the later Middle
Ages.[37] In England, in the thirteenth century, he was considered to
deserve royal pardon, but he also needed it.[38]
[Footnote 29: _Digesta_, xliii. 16. i. 27: "Vim vi repellere licere
Cassius scribit idque ius natura comparatur."]
[Footnote 30: Cicero, _Pro Milone_, 4 (10).]
[Footnote 31: Gratian, _Decretum_, i. 1. 7.]
[Footnote 32: Merker, quoted by Kohler, in _Zeitschr. f. vergl.
Rechtswiss._ xv. 64 (Wadshagga). Lang, in Steinmetz, _Rechtsverhältnisse_,
p. 257 (Washambala).]
[Footnote 33: Dennett, in _Jour. African Society_, i. 276.]
[Footnote 34: Kohler, in _Zeitschr. f. vergl. Rechtswiss._ xv. 353.]
[Footnote 35: Steinmetz, _Rechtsverhältnisse_, p. 50 (Banaka and
Bapuku). Tellier, _ibid._ p. 176 (Kreis Kita). Marx, _ibid._ p. 357
(Amahlubi). Senfft, _ibid._ p. 450 (Marshall Islanders).]
[Footnote 36: Geyer, _Lehre von der Nothwehr_, p. 88 _sqq._ Trummer,
_Vorträge über Tortur, &c._ i. 430. Stemann, _Den danske Retshistorie
indtil Christian V.'s Lov_, p. 659. _Cf._ _Leges Henrici I._ lxxx. 7;
lxxxvii. 6.]
[Footnote 37: Trummer, _op. cit._ i. 428 _sqq._ von Feuerbach-Mittermaier,
_Lehrbuch des Peinlichen Rechts_, p. 64. Brunner observes (_Deutsche
Rechtsgeschichte_, ii. 630), "Nicht das Benehmen des Getöteten war die
causa des Todschlags, sondern nur die feindselige Absicht des
Todschlagers."]
[Footnote 38: Bracton, _De Legibus et Consuetudinibus Angliæ_, fol.
132 b, vol. ii. 366 _sqq._ Pollock and Maitland, _History of English
Law before the Time of Edward I._ ii. 574.]
{289} In self-defence there should of course be a proportion between
the injury which the aggressor intended to inflict and the injury
inflicted on him by the person attacked. The most widely-recognised
ground on which life is allowed to be taken in self-defence is danger
of death. But it is not the exclusive ground. Among the Wakamba "a
thief entering a village at night can be killed"; though, if he is,
the incident generally gives rise to a blood-feud between his family
and the family of the slayer.[39] In Uganda "there is no penalty for
killing a thief who enters an enclosure at night";[40] and among
various peoples at higher stages of culture we likewise find the
provision that a nocturnal thief or house-breaker may be killed with
impunity, though a diurnal thief may not.[41] This law, however, seems
to have been due not so much to the fact that by night the proprietor
had less chance of recovering his property, as to the greater danger
to which he was personally exposed.[42] The Roman Law of the Twelve
Tables allows the diurnal thief also to be killed, in case he defends
himself with a weapon;[43] and, as regards the nocturnal thief, Ulpian
expressly says that the owner of the property is justified in killing
him only if he cannot spare the life of the thief without peril to
himself.[44] The same rule was laid down by Bracton[45] and by
Grotius. The latter observes, "No one ought to be slain directly for
the sake of mere things, which would be done if I were to kill an
unarmed flying thief with a missile, and so recover my goods: but if I
am myself in danger of life, then I may repel the danger even with
danger to the life of another; nor does this cease to hold, however I
have come into that danger, whether by trying to retain my property,
or to {290} recover it, or to capture the thief; for in all these
cases I am acting lawfully according to my right."[46]
[Footnote 39: Decle, _Three Years in Savage Africa_, p. 488.]
[Footnote 40: Ashe, _Two Kings of Uganda_, p. 294.]
[Footnote 41: _Ta Tsing Leu Lee_, sec. cclxxvii. p. 297 (Chinese).
_Exodus_, xxii. 2 _sq._ _Lex Duodecim Tabularum_, viii. 11 _sq._
Plato, _Leges_, ix. 874. _Lex Baiuwariorum_, ix. (viii.) 5. Du Boys,
_Histoire du droit criminel de l'Espagne_, p. 288 (Spanish
Partidas).]
[Footnote 42: _Cf._ Gregory IX. _Decretales_, v. 12. 3; _Mishna_, fol.
72, quoted by Rabbinowicz, _Législation criminelle du Talmud_, p. 122.]
[Footnote 43: _Lex Duodecim Tabularum_, viii. 12. Cicero, _Pro
Milone_, 3 (9).]
[Footnote 44: _Digesta_, xlviii. 8. 9.]
[Footnote 45: Bracton, _op. cit._ fol. 144 b, vol. ii. 464 _sq._]
[Footnote 46: Grotius, _De jure belli et pacis_, ii. 1. 12. 1.]
According to the law of England, a woman is justified in killing one
who attempts to ravish her; and so also the husband or father may kill
a man who attempts a rape on his wife or daughter, if she do not
consent.[47] We meet with similar provisions in many other laws,
modern and ancient.[48] St. Augustine says that the law allows the
killing of a ravisher of chastity, either before or after the act, in
the same manner as it permits a person to kill a highwayman who makes
an attempt upon his life.[49] According to the Talmud, it is
permissible to kill a would-be criminal, in order to prevent the
commission of either murder or adultery "to save an innocent man's
life, or a woman's honour"; but when the crime has already been
accomplished, the criminal cannot be thus disposed of.[50]
[Footnote 47: Harris, _op. cit._ p. 145.]
[Footnote 48: Erskine-Rankine, _Principles of the Law of Scotland_, p.
558. _Ottoman Penal Code_, art. 186. Nordström, _Bidrag till den
svenska samhälls-författningens historia_, ii. 349 (ancient Swedish
laws). Plato, _Leges_, ix. 874.]
[Footnote 49: St. Augustine, _De libero arbitrio_, i. 5 (Migne,
_Patrologiæ cursus_, xxxii. 1227).]
[Footnote 50: Benny, _op. cit._ p. 125. Rabbinowicz, _op. cit._ p. 124.]
Among many peoples who in other cases prohibit self-redress, an
adulterer and an adulteress may be put to death by the aggrieved
husband, especially if they be caught _flagrante delicto_. Such a
custom prevails in various uncivilised societies where justice is
generally administered by a council of elders or the chief.[51] Among
the ancient {291} Peruvians "a man killing his wife for adultery was
free; but if for any other fault he died for it, unless he were a man
in dignity, and then some other penalty was inflicted."[52] According
to Chinese penal law, "when a principal or inferior wife is discovered
by her husband in the act of adultery, if such husband at the very
time that he discovers kills the adulterer, or adulteress, or both, he
shall not be punishable."[53] By the law of Nepal, the Parbattia
husband retains the privilege of avenging, with his own hand, the
violation of his marriage bed, and anyone, save a learned Brahman or a
helpless boy, who instead of using his own sword, should appeal to the
courts, would be covered with eternal disgrace.[54] In all purely
Moslem nations custom "overwhelms with ignominy the husband or son of
an adulteress who survives the discovery of her sin; he is taboo'd by
society; he becomes a laughing-stock to the vulgar, and a disgrace to
his family and friends."[55] According to the 'Lex Julia de
adulteriis,' a Roman father had a right to kill both his married
daughter and her accomplice if she was taken in adultery either in his
house or in her husband's, provided that both of them were killed, and
that it was done at once. The husband, on the other hand, had no such
right as to his wife in any case, and no such right as to her
accomplice unless he was an infamous person or a slave, taken, not in
his father-in-law's house, but in his own.[56] However, it seems that
in more ancient times the husband was entitled to kill an adulterous
wife;[57] and his right of self-redress in the case of adultery was
again somewhat extended by Justinian beyond the very narrow limits set
down by the Lex Julia.[58] According to an Athenian law, "if one man
shall kill another . . . after catching him with his wife, or with his
mother, or with a {292} sister, or with a daughter, or with a
concubine whom he keeps to beget free-born children, he shall not go
into exile for homicide on such account."[59] Ancient Teutonic law
allowed a husband to kill both his unfaithful wife and the adulterer,
if he caught them in the act;[60] according to the Laws of Alfred, an
adulterer taken _flagrante delicto_ by the woman's lawful husband,
father, brother, or son, might be killed without risk of
blood-feud.[61] In the thirteenth century, however, there are already
signs that, in England, the outraged husband who found his wife in the
act of adultery might no longer slay the guilty pair or either of
them, although he might emasculate the adulterer.[62] The present law
treats the killing of an adulterer taken in the act in the same way as
homicide committed in a quarrel; by slaying him, the husband is guilty
of manslaughter only, though, if the killing were deliberate and took
place in revenge after the fact, the crime would be murder. This seems
to be the only case in English law in which provocation, other than by
actual blows, is considered sufficient to reduce homicide to
manslaughter, if the killing be effected by a deadly weapon.[63] There
are corresponding provisions in other modern laws.[64] As a rule,
flagrant adultery does not justify homicide, but serves as an
extenuating circumstance.[65] But according to the French Code Pénal,
"dans le cas d'adultère . . . le meurtre commis par l'époux sur son
épouse, ainsi que sur le complice, à l'instant où il les surprend en
flagrant délit dans la maison conjugale, est excusable."[66] And in
Russia, though the law does not exempt from punishment a {293} husband
who thus avenges himself, the jury show great indulgence to him.[67]
[Footnote 51: Dalton, _Descriptive Ethnology of Bengal_, p. 45;
Stewart, in _Jour. As. Soc. Bengal_, xxiv. 628 (Kukis). Macpherson,
_Memorials of Service in India_, p. 83; Hunter, _Annals of Rural
Bengal_, iii. 76 (Kandhs). Anderson, _Mandalay to Momien_, p. 140
(Kakhyens). MacMahon, _Far Cathay and Farther India_, p. 273
(Indo-Burmese border tribes). Crawfurd, _History of the Indian
Archipelago_, iii. 130. von Brenner, _Besuch bei den Kannibalen
Sumatras_, pp. 211, 213. Modigliani, _Viaggio a Nías_, p. 495. Dorsey,
'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._ iii. 364. Dyveyrier,
_Exploration du Sahara_, p. 429 (Touareg). Barrow, _Travels into the
Interior of Southern Africa_, i. 207 (Kafirs). Among the Gaika tribe
of the Kafirs, however, "a man is fined for murder, if he kills an
adulterer or adulteress in the act, although he be the husband of the
adulteress" (Maclean, _Compendium of Kafir Laws and Customs_, p. 111).
Among the Wakamba, "if a man is caught in adultery at night, the
husband has a right to kill him; but if the injured man thus takes the
law into his own hands in the daytime, he is dealt with as a murderer"
(Decle, _op. cit._ p. 487).]
[Footnote 52: Herrera, _op. cit._ iv. 338.]
[Footnote 53: _Ta Tsing Leu Lee_, sec. cclxxxv. p. 307.]
[Footnote 54: Hodgson, _Miscellaneous Essays_, ii. 235, 236, 272.]
[Footnote 55: Burton, _Sind Revisited_, ii. 54 _sq._]
[Footnote 56: _Digesta_, xlviii. 5. 21 _sq._]
[Footnote 57: Gellius, _Noctes Atticæ_, x. 23. 5. _Cf._ Mommsen,
_Römisches Strafrecht_, p. 625.]
[Footnote 58: _Novellæ_, cxvii. 15.]
[Footnote 59: Demosthenes, _Contra Aristocratem_, 53, p. 637.]
[Footnote 60: Wilda, _Strafrecht der Germanen_, p. 823. Nordström,
_op. cit._ ii. 62 _sq._ Stemann, _op. cit._ p. 325.]
[Footnote 61: _Laws of Alfred_, ii. 42.]
[Footnote 62: Pollock and Maitland, _op. cit._ ii. 484. The same right
is granted by a Spanish mediæval law to a father, or a husband, who
finds a man having illegitimate sexual intercourse with his daughter,
or wife (Du Boys, _Histoire du droit criminel de l'Espagne_, p. 93).]
[Footnote 63: Hale, _op. cit._ i. 486. Harris, _op. cit._ p. 145.
Cherry, _Lectures on the Growth of Criminal Law_, p. 82 _sq._]
[Footnote 64: Italian _Codice Penale_, art. 377. Spanish _Código Penal
reformado_, art. 438. _Ottoman Penal Code_, art. 188.]
[Footnote 65: Günther, _Idee der Wiedervergeltung_, iii. 233 _sqq._]
[Footnote 66: _Code Pénal_, art. 324.]
[Footnote 67: Foinitzki, _loc. cit._ p. 548.]
Whilst the law referring to self-defence has gradually become more
liberal, the law referring to self-redress in the case of adultery has
thus, generally speaking, become more severe. The reason for this is
obvious. A husband who slays his unfaithful wife or her accomplice
does not defend, but avenges himself; and it is to be expected that a
society in which punishment has only just succeeded revenge should
still admit, or tolerate, revenge in extreme cases. The privilege
granted to the outraged husband is not the sole survival of the old
system of self-redress lingering on under the new conditions.
According to Kafir custom or law, the relatives of a murdered man
become liable only to a very light fine if they kill the murderer.[68]
The ancient Teutons, at a time when their laws already prohibited
private revenge, did not look upon an avenger of blood in the same
light as an ordinary manslayer;[69] and even the Church recognised the
distinction.[70] Some of the ancient Swedish laws entirely excused
homicide committed in revenge immediately after the crime.[71]
According to the Östgöta-Lag, an incendiary taken in flagrancy might
be at once burnt in the fire,[72] and ancient Norwegian law permitted
the slaying of a thief caught in the act.[73] In the Laws of Ine there
is an indication that a thief's fate was at the discretion of his
captor,[74] and a law of Æthelstan implies that the natural and proper
course as to thieves was to kill them.[75] In the Laws of King Wihtræd
it is said, "If any one slay a layman while thieving; let him lie
without 'wergeld.'"[76] So also, according to Javanese law, if a thief
be caught in the act it is lawful to put him to death.[77] For our
present {294} purpose it is important to note that all such cases
imply a recognition of the principle that an act committed on extreme
provocation requires special consideration. To declare that an
adulterer or adulteress caught in flagrancy, or a manifest thief, may
be slain with impunity, is a concession to human passions, which are
naturally more easily aroused by the sight of an act than by the mere
knowledge of its commission. It was for a similar reason that the Law
of the Twelve Tables punished _furtum manifestum_ much more heavily
than _furtum nec manifestum_;[78] and that the Laws of Alfred imposed
death as the penalty for fighting in the King's hall if the offender
was taken in the act, whereas he was allowed to pay for himself if he
escaped and was subsequently apprehended.[79]
[Footnote 68: Maclean, _op. cit._ p. 143. _Cf._, however, _ibid._
p. 110.]
[Footnote 69: Wilda, _op. cit._ p. 562. Stemann, _op. cit._ p. 582 _sq._]
[Footnote 70: Wilda, _op. cit._ pp. 180, 565. Labbe-Mansi, _Sacrorum
Conciliorum collectio_, xii. 289.]
[Footnote 71: Nordström, _op. cit._ ii. 414 _sq._]
[Footnote 72: _Ibid._ ii. 416.]
[Footnote 73: Wilda, _op. cit._ p. 889.]
[Footnote 74: _Laws of Ine_, 12. _Cf._ Stephen, _op. cit._ i. 62.]
[Footnote 75: _Laws of Æthelstan_, iv. 4.]
[Footnote 76: _Laws of Wihtræd_, 25.]
[Footnote 77: Crawfurd, _op. cit._ iii. 115.]
[Footnote 78: _Institutiones_, iv. 1. 5.]
[Footnote 79: _Laws of Alfred_, ii. 7.]
The difference between an injury which a person inflicts deliberately,
in cold blood, and one which he inflicts in the heat of the moment,
under the disturbance of great excitement caused by a wrong done to
himself, has been widely recognised. There are instances reported of
savages who distinguish between murder and manslaughter. And the laws
of all civilised nations agree in regarding, on certain conditions,
passion aroused by provocation as a mitigating circumstance at the
commission of a crime.
The Australian Narrinyeri, as we have seen, have a tribunal, called
_tendi_, consisting of the elders of the clan, to which all offenders
are brought for trial. "In case of the slaying by a person or persons
of one clan of the member of another clan in time of peace, the
fellow-clansmen of the murdered man will send to the friends of the
murderer and invite them to bring him to trial before the united
tendies. If, after full inquiry, he is found to have committed the
crime, he will be punished according to the degree of guilt. If it
were a case of murder, with malice aforethought, he would be handed
over to his own clan to be put to death by spearing. If it should be
what we call manslaughter, he would receive a good thrashing, or be
banished from his clan, or compelled to go to his mother's {295}
relations."[80] In the Pelew Islands, if two natives are quarrelling,
and the one says to the other, "Your wife is bad," the insulted party
is entitled to chastise the provoker with a stone, and is not held
liable even if the latter should die in consequence.[81] The Eastern
Central Africans "are aware of the difference between murder and
homicide," even though the punishment of the two crimes is often the
same.[82] Among the Kandhs only slight compensation is awarded "for
wounds, however serious, given under circumstances of extreme
provocation."[83] "_Valdeyak_, or manslaughter," says Georgi, "is not
capital among the Tungusians, when it has been occasioned by some
antecedent quarrel. The slayer is however whipped, and obliged to
maintain the family of the deceased: he undergoes no reproaches on
account of the affair; but on the contrary is considered as a brave
and courageous man for it."[84]
[Footnote 80: Taplin, 'Narrinyeri,' in Woods, _Native Tribes of South
Australia_, p. 34 _sq._]
[Footnote 81: Kubary, 'Die Palau-Inseln,' in _Journal des Museum
Godeffroy_, iv. 43 _sq._]
[Footnote 82: Macdonald, _Africana_, i. 172.]
[Footnote 83: Macpherson, _op. cit._ p. 82.]
[Footnote 84: Georgi, _Russia_, iii. 83. _Cf._ also Turner, 'Ethnology
of the Ungava District,' in _Ann. Rep. Bur. Ethn._ xi. 186.]
Among the ancient Peruvians, "when one killed another in a quarrel,
the first thing enquired into was, who had been the aggressor; if the
dead man, then the punishment was slight, at the will of the Inga; but
if the surviver had given the provocation, his penalty was death, or
at least perpetual banishment to the Andes, there to work in the
Inga's fields of corn, which was like sending him to the galeys. A
murderer was immediately publickly put to death, tho' he were a man of
quality."[85] Among the Mayas of Yucatan and Nicaragua, in case of
great provocation or absence of malice, homicide was atoned by the
payment of a fine.[86]
[Footnote 85: Herrera, _op. cit._ iv. 337 _sq._]
[Footnote 86: Bancroft, _Native Races of the Pacific States_, ii. 658.]
From certain passages in the Mosaic law the conclusion has been
drawn that the ancient Hebrews did not consider it obligatory to
inflict death upon him who had killed his neighbour in a fit of
passion.[87] It is said that a man shall be put to death if he "come
presumptuously upon his neighbour, to slay him with guile,"[88] or if
he "hate his neighbour, and lie in wait for him, and rise up against
him, and smite him mortally that he die."[89] On the other hand, he
shall be allowed a resort to a city {296} of refuge if "he lie not in
wait,"[90] or if he thrust his neighbour "suddenly without
enmity."[91]
[Footnote 87: Goitein, _Das Vergeltungsprincip im biblischen und
taltmudischen Strafrecht_, p. 33 _sqq._]
[Footnote 88: _Exodus_, xxi. 14.]
[Footnote 89: _Deuteronomy_, xix. 11 _sq._]
[Footnote 90: _Exodus_, xxi. 13.]
[Footnote 91: _Numbers_, xxxv. 22, 25.]
Professor Leist suggests that in ancient Greece, at a time when
blood-revenge was a sacred duty in the case of premeditated murder,
homicide committed without premeditation could be forgiven by the
avenger of blood.[92] Plato, in his 'Laws,' draws a distinction
between him "who treasures up his anger and avenges himself, not
immediately and at the moment, but with insidious design, and after an
interval," and him "who does not treasure up his anger, and takes
vengeance on the instant, and without malice prepense." The deed of
the latter, though not involuntary, "approaches to the involuntary,"
and should therefore be punished less severely than the crime
perpetrated by him who has stored up his anger.[93] Aristotle, also,
whilst denying that "acts done from anger or from desire are
involuntary,"[94] maintains that "assaults committed in anger, are
rightly decided not to be of malice aforethought, for they do not
originate in the volition of the man who has been angered, but rather
in that of the man who so angered him."[95] And he adds that "everyone
will admit that he who does a disgraceful act, being at the same time
free from desire, or at any rate feeling desire but slightly, is more
to be blamed than is he who does such an act under the influence of a
strong desire; and that he who, when not in a passion, smites his
neighbour, is more to be blamed than is he who does so when in a
passion."[96] Cicero likewise points out that "in every species of
injustice it is a very material question whether it is committed
through some agitation of passion, which commonly is short-lived and
temporary, or from deliberate, prepense, malice; for those things
which proceed from a short, sudden fit, are of slighter moment than
those which are inflicted by forethought and preparation."[97]
[Footnote 92: Leist, _Græco-italische Rechtsgeschichte_, pp. 325, 352.]
[Footnote 93: Plato, _Leges_, ix. 867.]
[Footnote 94: Aristotle, _Ethica Nicomachea_, iii. 1. 21.]
[Footnote 95: _Ibid._ v. 8. 9.]
[Footnote 96: _Ibid._ vii. 7. 3.]
[Footnote 97: Cicero, _De officiis_, i. 8.]
Of ancient Russian law M. Kovalewsky observes, "L'existence d'une
excitation violente est prise en considération, par notre antique
législation, qui déclare le crime accompli sous leur influence non
imputable."[98] According to ancient Irish law, "homicide was
divisible into the two classes of simple manslaughter and murder, the
difference between which lay in the {297} existence or absence of
malice aforethought, the fine in the latter being double what it was
in the former case"; and for a wound which was inflicted inadvertently
in lawful anger, the payment was made upon a diminished scale.[99] The
ancient Teutons, also, held a wrong committed in sudden anger and on
provocation to be less criminal than one committed with premeditation
in cold blood;[100] this opinion seems partly to be at the bottom of
the distinction which they made between open and secret homicide.[101]
According to the law of the East Frisians, a man who kills another
without premeditation may buy off his neck with money, not so he who
commits a murder with malice aforethought.[102] It is curious that
Bracton should take no notice of the different grades of evil
intention which may accompany voluntary homicide, and that he should
omit altogether the question of provocation;[103] Beaumanoir, the
French jurist, who lived in the same age, mentions in his 'Coutumes du
Beauvoisis' provocation as an extenuating circumstance,[104] and the
same view was taken by the Church.[105] Coke, in his Third
Institute--which may be regarded as the second source of the criminal
law of England, Bracton being the first--gives an account of malice
aforethought, and adds, "Some manslaughters be voluntary, and not of
malice forethought, upon some sudden falling out. _Delinquens per iram
provocatus puniri debet mitius_."[106] Hume says that in Scotland "the
manslayer on suddenty was to have the benefit of the girth or
sanctuary: he might flee to the church or other holy place; from which
he might indeed be taken for trial, but to be returned thither, safe
in life and limb, if his allegation of _chaude melle_ were
proved."[107] All modern codes regard provocation under certain
circumstances as a mitigating circumstance.[108] According to the
criminal law of Montenegro, great provocation may even relieve a
homicide of all guilt.[109]
[Footnote 98: Kovalewsky, _Coutume contemporaine_, p. 291.]
[Footnote 99: _Ancient Laws of Ireland_, iii. pp. xciii. cx.]
[Footnote 100: Wilda, _op. cit._ p. 560 _sqq._, 701. Stemann, _op.
cit._ p. 574. von Amira, in Paul's _Grundriss der germanischen
Philologie_, ii. pt. ii. 174.]
[Footnote 101: Wilda, _op. cit._ p. 569. von Amira, _loc. cit._ p. 173.]
[Footnote 102: _Das Ostfriesische Land-Recht_, iii. 17 _sq._]
[Footnote 103: _Cf._ Stephen, _op. cit._ iii. 33.]
[Footnote 104: Beaumanoir, _Coutumes du Beauvoisis_, xxx. 101, vol. i.
454 _sq._]
[Footnote 105: Gregory III. _Judicia congrua penitentibus_, 3
(Labbe-Mansi, _op. cit._ xii. 289).]
[Footnote 106: Coke, _Third Institute_, p. 55.]
[Footnote 107: Hume, _Commentaries on the Law of Scotland_, i. 365.]
[Footnote 108: Günther, _op. cit._ iii. 256 _sqq._]
[Footnote 109: _Ibid._ iii. 255 _sq._]
It has been said that a man who acts under the influence of great
passion has not, at the time, a full knowledge of the nature and
quality of his act, and that {298} the clemency of the law is "a
condescension to the frailty of the human frame, to the _furor
brevis_, which, while the frenzy lasteth, rendereth the man deaf to
the voice of reason."[110] But the main cause for passion extenuating
his guilt is not the intellectual disability under which he acts, but
the fact that he is carried away by an impulse which is too strong for
his will to resist. This is implied in the provision of the law, that
"provocation does not extenuate the guilt of homicide unless the
person provoked is at the time when he does the act deprived of the
power of self-control by the provocation which he has received."[111]
[Footnote 110: Foster, _Report of Crown Cases_, p. 315.]
[Footnote 111: Stephen, _Digest_, art. 246, p. 188.]
That anger has been so generally recognised as an extenuation of guilt
is largely due to the fact that the person who provokes it is himself
blamable; both morality and law take into consideration the degree of
provocation to which the agent was exposed. But, at the same time, the
pressure of a non-volitional motive on the will may by itself be a
sufficient ground for extenuation. In certain cases of mental disease
a morbid impulse or idea may take such a despotic possession of the
patient as to drive him to the infliction of an injury. He is mad, and
yet he may be free from delusion and exhibit no marked derangement of
intelligence. He may be possessed with an idea or impulse to kill
somebody which he cannot resist. Or he may yield to a morbid impulse
to steal or to set fire to houses or other property, without having
any ill-feeling against the owner or any purpose to serve by what he
does.[112] The deed to which the patient is driven is frequently one
which he abhors, as when a mother kills the child which she loves
most.[113] In such cases the agent is of course acquitted by the moral
judge, and if he is condemned by the law of his country and its
guardians, the reason for this can be nothing but ignorance. We must
remember that this form of madness was hardly known even to medical
{299} men till the end of the 18th century,[114] when Pinel, to his
own surprise, discovered that there were "many madmen who at no period
gave evidence of any lesion of the understanding, but who were under
the dominion of instinctive and abstract fury, as if the affective
faculties had alone sustained injury."[115] And there can be no doubt
that the fourteen English judges who formulated the law on the
criminal responsibility of the insane, made no reference to this
_manie sans délire_ simply because they had not sufficient knowledge
of the subject with which they had to deal.[116]
[Footnote 112: Maudsley, _Responsibility in Mental Disease_, p. 133
_sqq._ von Krafft-Ebing, _Lehrbuch der gerichtlichen Psychopathologie_,
p. 308 _sqq._]
[Footnote 113: Gadelius, _Om tvångstankar_, p. 168 _sq._ Paulhan,
_L'activité mentale_, p. 374.]
[Footnote 114: Maudsley, _op. cit._ p. 141.]
[Footnote 115: Pinel, _Traité médico-philosophique sur l'aliénation
mentale_, p. 156: "Je ne fut pas peu surpris de voir plusieurs aliénés
qui n'offroient à aucune époque aucune lésion de l'entendement, et qui
étoient dominés par une sorte d'instinct de fureur, comme si les
facultés affectives seules avoient été lésées."]
[Footnote 116: Sir James Stephen (_Digest_, art. 28, p. 20 _sq._)
thinks it _possible_ that, according to the present law of England, an
act is not criminal if the person who does it is, at the time when it
is done, prevented by any disease affecting his mind from controlling
his own conduct, unless the absence of the power of control has been
produced by his own default.]
* * * * *
That moral judgments are generally passed, in the first instance, with
reference to acts immediately intended, and consider motives only in
proportion as the judgment is influenced by reflection, holds good,
not only of moral blame, but of moral praise. Every religion presents
innumerable examples of people who do "good deeds" only in expectation
of heavenly reward. This implies the assumption that the Deity judges
upon actions without much regard to their motives; for if motives were
duly considered, a man could not be held rewardable for an act which
he performs solely for his own benefit. We are told that the homage
which the Chinese "render the gods and goddesses believed to be
concerned in the management of the affairs of this world is
exceedingly formal, mechanical, and heartless," and that "there seems
to be no special importance attached to purity of heart."[117]
According to Caldwell, "the Hindu religionist enjoins the act alone,
and affirms that motives have nothing to do with merit."[118] The
argument, "Obey the law because it will {300} profit you to do so,"
constitutes the fundamental motive of Deuteronomy, as appears from
phrases like these: "That it may go well with thee," "That thy days
may be prolonged."[119] Speaking of the modern Egyptians, Lane
observes that "from their own profession it appears that they are as
much excited to the giving of alms by the expectation of enjoying
corresponding rewards in heaven as by pity for the distresses of their
fellow-creatures, or a disinterested wish to do the will of God."[120]
Something similar may be said, not only of the "good deeds" of
Muhammedans, but of those of many Christians. Did not Paley expressly
define virtue as "the doing good to mankind, in obedience to the will
of God, and for the sake of everlasting happiness"?[121]
[Footnote 117: Doolittle, _Social Life of the Chinese_, ii. 397.]
[Footnote 118: Caldwell, _Tinnevelly Shanars_, p. 35.]
[Footnote 119: _Cf._ Montefiore, _Hibbert Lectures_, p. 531.]
[Footnote 120: Lane, _Modern Egyptians_, p. 293.]
[Footnote 121: Paley, _Principles of Moral and Political Philosophy_,
i. 7 (_Complete Works_, ii. 38).]
Such views, however, cannot hold their ground against the verdict of
the scrutinising moral consciousness. They have been repeatedly
contradicted by the great teachers of morality. Confucius required an
inward sincerity in all outward practice, and poured scorn on the
pharisaism which contented itself with the cleansing of the outside of
the cup and platter.[122] He said that, "in the rites of mourning,
exceeding grief with deficient rites is better than little
demonstration of grief with superabounding rites; and that in those of
sacrifice, exceeding reverence with deficient rites is better than an
excess of rites with but little reverence."[123] "Sacrifice is not a
thing coming to a man from without; it issues from within him, and has
its birth in his heart. When the heart is deeply moved, expression is
given to it by ceremonies."[124] The virtuous man offers his
sacrifices "without seeking for anything to be gained by them."[125]
"The Master said, 'See what a man does. Mark his motives.'"[126] The
popular Taouist work, called 'The Book of Secret Blessings,'
inculcates the necessity {301} of purifying the heart as a preparation
for all right-doing.[127] The religious legislator of Brahmanism,
whilst assuming in accordance with the popular view that the
fulfilment of religious duty will be always rewarded to some extent,
whatever may be the motive, maintains that the man who fulfils his
duties without regard to the rewards which follow the fulfilment, will
enjoy the highest happiness in this life and eternal happiness
hereafter.[128] According to the Buddhistic Dhammapada, "if a man
speaks or acts with an evil thought, pain follows him, as the wheel
follows the foot of the ox that draws the carriage. . . . If a man
speaks or acts with a pure thought, happiness follows him, like a
shadow that never leaves him."[129] In his description of the
Buddhists of Mongolia, the Rev. James Gilmour observes:--"Mongol
priests recognise the power of motive in estimating actions . . . .
The attitude of the mind decides the nature of the act. He that offers
a cup of cold water only, in a proper spirit, has presented a gift
quite as acceptable as the most magnificent of donations."[130] With
reference to the Hebrews, Mr. Montefiore says:--"If it were true that
the later Judaism of the law laid exclusive stress in its moral
teaching upon the mere outward act and not upon the spirit--upon doing
rather than being, as we might nowadays express it--we should scarcely
find that constant harping upon the heart as the source and seat of
good and evil. What more legal book than Chronicles? Yet it is there
that we find the earnest supplication for a heart directed towards
God. . . . The eudæmonistic motive is strongest in Deuteronomy; it is
weakest with the Rabbis."[131] Few sayings are quoted and applied more
frequently in the Rabbinical literature than the adage which closes
those tractates of the Mishna which deal with the sacrificial
law:--"He that brings few offerings is as he that brings many; let his
heart be directed {302} heavenward."[132] The same faults which Jesus
chastises in the hypocritical Rabbis of his day are also chastised in
the Talmud. It is said, "Before a man prays let him purify his
heart,"[133] and, "Sin committed with a good motive is better than a
precept fulfilled from a bad motive."[134] Rabbi Elazar says, "No
charity is rewarded but according to the degree of benevolence in it,
for it is said, 'Sow (a reward) for yourselves in giving alms as
charity, you will reap according to the benevolence.'"[135] Nor is the
doctrine which requires disinterested motives for the performance of
good deeds foreign to Muhammedan moralists. "Whatever we give," says
the author of the Akhlâk-i-Jelâli, "should be given in the fulness of
zeal and good-will. . . . We should spend it simply to please God, and
not mix the act with any meaner motive, lest thereby it be rendered
null and void."[136]
[Footnote 122: _Cf._ Legge, _Religions of China_, p. 261 _sq._; Girard
de Rialle, _Mythologie comparée_, p. 214.]
[Footnote 123: _Lî Kî_, ii. 1. 2. 27. _Cf._ _Lun Yü_, iii. 4. 3.]
[Footnote 124: _Lî Kî_, xxii. 1.]
[Footnote 125: _Ibid._ xxii. 2.]
[Footnote 126: _Lun Yü_, ii. 10. 1 _sq._]
[Footnote 127: Douglas, _Confucianism and Taouism_, p. 272.]
[Footnote 128: Wheeler, _History of India_, ii. 478.]
[Footnote 129: _Dhammapada_, 1 _sq._]
[Footnote 130: Gilmour, _Among the Mongols_, p. 239.]
[Footnote 131: Montefiore, _op. cit._ pp. 483, 533. _1 Chronicles_,
xxii. 19; xxviii. 9; xxix. 18 _sq._ _2 Chronicles_, xi. 16; xv. 12;
xvi. 9.]
[Footnote 132: Montefiore, _op. cit._ p. 484.]
[Footnote 133: _Ibid._ p. 174.]
[Footnote 134: Nazir, fol. 23 B, quoted by Hershon, _Treasures of the
Talmud_, p. 74.]
[Footnote 135: Succah, fol. 49 B, _ibid._ p. 11.]
[Footnote 136: Quoted by Ameer Ali, _Ethics of Islâm_, p. 38 _sq._]
CHAPTER XII
FORBEARANCES AND CARELESSNESS--CHARACTER
THE observation has often been made that in early moral codes the
so-called negative commandments, which tell people what they ought not
to do, are much more prominent than the positive commandments, which
tell them what they ought to do. The main reason for this is that
negative commandments spring from the disapproval or acts, whereas
positive commandments spring from the disapproval of forbearances or
omissions, and that the indignation of men is much more easily aroused
by action than by the absence of it. A person who commits a harmful
deed is a more obvious cause of pain than a person who causes harm by
doing nothing, and this naturally affects the question of guilt in the
eyes of the multitude. A scrutinising judge of course carefully
distinguishes between willfulness and negligence, whereas, to his
mind, a forbearance is morally equivalent to an act. The unreflecting
judge, on the other hand, is much less concerned with the question of
wilfulness than with the distinction between acting and not-acting.
Even the criminal laws of civilised nations take little cognisance of
forbearances and omissions;[1] and one reason for this is that they
evoke little public indignation. Even if it be admitted that the rules
of beneficence, so far as details are concerned, must be left in a
great measure to {304} the jurisdiction of private ethics, the limits
of the law on this head, as Bentham remarks, seem "to be capable of
being extended a good deal farther than they seem ever to have been
extended hitherto." And he appropriately asks, "In cases where the
person is in danger, why should it not be made the duty of every man
to save another from mischief, when it can be done without prejudicing
himself, as well as to abstain from bringing it on him?"[2]
[Footnote 1: Stephen, _History of the Criminal Law of England_, ii.
113. Hepp, _Zurechnung auf dem Gebiete des Civilrechts_, p. 115 (Roman
law).]
[Footnote 2: Bentham, _Principles of Morals and Legislation_, p. 322
_sq._ To a certain extent, however, this has been admitted by
legislators even in the Middle Ages. Frederick II.'s Sicilian Code
imposed a penalty on persons who witnessed conflagrations or
shipwrecks without helping the victims, and a fine of four augustales
on anyone who, hearing the shrieks of an assaulted woman, did not
hurry to her rescue (_Constitutiones Napolitana sive Siculæ_, i. 28,
22 [Lindenbrog, _Codex legum antiquarum_, pp. 715, 712]). Bracton says
(_De Legibus et Consuetudinibus Angliæ_, fol. 121, vol. ii. 280 _sq._)
that he who could rescue a man from death and did not do it, ought not
to be exempt from punishment. It was a principle of the Canon law that
he who does not prevent the infliction of an injury upon his neighbour
when it lies in his power to do so, is to be regarded as an accomplice
in the offence (Geyer, _Lehre von der Nothwehr_, p. 74. Gregory IX.
_Decretales_, v. 12, 6. 2: "Qui potuit hominem liberare a morte, et
non liberavit, eum occidit").]
The more scrutinising the moral consciousness, the greater the
importance which it attaches to positive commandments. This is well
illustrated by a comparison between Old and New Testament morality. As
Professor Seeley observes,[3] "the old legal formula began 'thou shalt
not,' the new begins with 'thou shalt.' The young man who had kept the
whole law--that is, who had refrained from a number of actions--is
commanded to do something, to sell his goods and feed the poor.
Condemnation was passed under the Mosaic law upon him who had sinned,
who had done something forbidden--the soul that sinneth shall die;
Christ's condemnation is pronounced upon those who had not done
good--'I was an hungered and ye gave me no meat.' The sinner whom
Christ habitually denounces is he who has done nothing." This
characteristic is repeatedly manifested in His parables--as in the
case of the priest and Levite who passed by on the other side; in the
case of Dives, of whom no ill is recorded except that a beggar lay at
his {305} gate full of sores and yet no man gave unto him; in the case
of the servant who hid in a napkin the talent committed to him.
However, to say that the new morality involved the discovery of "a new
continent in the moral globe,"[4] is obviously an exaggeration. The
customs of all nations contain not only prohibitions, but positive
injunctions as well. To be generous to friends, charitable to the
needy, hospitable to strangers, are rules which, as will be seen, may
be traced back to the lowest stages of savagery known to us. The
difference in question is only one of degree. Of the Bangerang tribe
in Victoria Mr. Curr observes:--"Aboriginal restraints were, in the
majority of cases, though not altogether, of a negative character; an
individual might not do this, and might not eat that, and might not
say the other. What he should do under any circumstances, or that he
should do anything, were matters with which custom interfered less
frequently."[5]
[Footnote 3: Seeley, _Ecce Homo_, p. 176.]
[Footnote 4: _Ibid._ p. 179.]
[Footnote 5: Curr, _Recollections of Squatting in Victoria_, p. 264 _sq._]
Whilst the unreflecting mind has a tendency to overlook or underrate
the guilt of a person who, whether wilfully or by negligence, causes
harm by doing nothing, it is on the other hand, apt to exaggerate the
guilt of a person who, not wilfully but out of heedlessness or
rashness, causes harm by a positive act. In reality the latter person
is blamable not for what he did, but for what he omitted to do, for
want of due attention, for not thinking of the probable consequences
of his act or for insufficient advertence to them. But the superficial
judge largely measures the agent's guilt by the actual harm done, and
in many cases even attributes to carelessness what was due to sheer
misfortune.
As Sir F. Pollock and Prof. Maitland rightly observe, it is not true
that barbarians will not trace the chain of causation beyond its
nearest link--that, for example, they will not impute one man's death
to another unless that other has struck a blow which laid a corpse at
his feet.[6] {306} Among the Wanyoro, should a girl die in childbirth,
the seducer is also doomed to die, unless he ransom himself by payment
of some cows.[7] Among the Wakamba, if a man is the second time guilty
of manslaughter in a state of drunkenness, the elders may either
sentence him to death, "or make the seller of drink pay compensation
to the family of the victim."[8] According to the native code of
Malacca, if vicious buffaloes or cattle "be tied in the highway, where
people are in the habit of passing and repassing, and gore or wound
any person, the owner shall be fined one tahil and one paha, and pay
the expense necessary for the cure of the wounded individual. Should
he be gored to death, then the owner shall be fined according to the
Diyat, because the owner is criminal in having tied the animal in an
improper place."[9] In the Laws of Alfred it is said that, if a man
have a spear over his shoulder and anybody stake himself on it, the
man with the spear has to pay the _wer_.[10] According to an ancient
custom, in vogue in England as late as the thirteenth century, one who
was accused of homicide was, before going to the wager of battle,
expected to swear that he had done nothing through which the dead man
had become "further from life and nearer to death";[11] and damages
which the modern English lawyer would without hesitation describe as
"too remote" were not too remote for the author of the so-called 'Laws
of Henry I.'[12] "At your request I accompany you when you are about
your own affairs; my enemies fall upon and kill me; you must pay for
my death.[13] You take me to see a wild beast show or that interesting
spectacle a madman; beast or madman kills me; you must pay. You hang
up your sword; some one else knocks it down so that it cuts me; you
must pay."[14] In all these cases you did something that helped to
bring {307} about death or wound, and you are consequently held
responsible for the mishap.
[Footnote 6: Pollock and Maitland, _History of English Law before the
Time of Edward I._ ii. 470.]
[Footnote 7: _Emin Pasha in Central Africa_, p. 83.]
[Footnote 8: Decle, _Three Years in Savage Africa_, p. 487.]
[Footnote 9: Newbold, _British Settlements in the Straits of Malacca_,
ii. 256 _sq._]
[Footnote 10: _Laws of Alfred_, 36.]
[Footnote 11: _Leges Henrici I._ xc. 11. Bracton, _op. cit._
fol. 141 b, vol. ii. 440 _sq._]
[Footnote 12: Pollock and Maitland, _op. cit._ ii. 470 _sq._]
[Footnote 13: _Leges Henrici I._ lxxxviii. 9.]
[Footnote 14: _Ibid._ xc. 11. Pollock and Maitland, _op. cit._ ii. 471.]
But though early custom and law may be anxious enough to trace an
event to its source, they easily fail to distinguish between external
and internal causes, to discover where there is guilt or not, and, in
case of carelessness, to determine the magnitude of the offender's
guilt. Ancient Teutonic law, as we have seen, distinguished between
_vili_ and _vadhi_. It punished the involuntary manslayer less heavily
than the voluntary one, but it punished him all the same; and whether
the unintended deed was combined with heedlessness or was purely
accidental was a question with which the law did not at all concern
itself.[15] According to the Laws of [Hv]ammurabi, "if the doctor has
treated a gentleman for a severe wound with a lancet of bronze, and
has caused the gentleman to die, or has opened an abscess of the eye
for a gentleman with the bronze lancet and has caused the loss of the
gentleman's eye, one shall cut off his hands."[16] In the Mosaic law
distinction was made between presence and absence of enmity in the
manslayer, but the difference between carelessness and misfortune was
not considered,[17] except when the instrument of death was a goring
ox.[18] However, in this, as in many other respects, great progress
was made by the later legislation of the Jews. The Rabbis took
considerable pains to distinguish between purely accidental homicide
and homicide due to carelessness; the former they exempted from all
punishment, whereas the latter incurred the punishment of confinement
to a city of refuge.[19] They even distinguished between cases in
which the death was exclusively due to the carelessness of the agent,
and cases in which the deceased contributed to it by some blamable act
of his own. A father or a teacher {308} who in punishing his son or
pupil unintentionally caused his death, and a person who by order of
the Sanhedrim inflicted corporal punishment on a culprit and in doing
so happened by mistake to kill him--such persons were not confined in
a city of refuge, but escaped punishment altogether.[20] Whatever else
may be said of these provisions, they certainly show remarkable
discernment in a point where legislators of a ruder type have been
very indiscriminate. In the oldest English records we see no attempt
to distinguish cases in which the dead man himself was reprehensible
from others in which no fault could be imputed to him, and we find
that many horses and boats bore the guilt which should have been
ascribed to beer.[21] When a drunken carter was crushed beneath the
wheel of his cart, the cart, the cask of wine which was in it, and the
oxen that were drawing it, were all deodand.[22] According to the
customary law of the Ossetes, if a stolen gun went off in the hands of
the thief who was carrying it away, and killed him, the thief's kin
had a just feud against the owner of the gun.[23]
[Footnote 15: Wilda, _Strafrecht der Germanen_, p. 578. Geyer, _op.
cit._ p. 88. Brunner, _Forschungen zur Geschichte des deutschen und
französischen Rechtes_, p. 499.]
[Footnote 16: _Laws of [Hv]ammurabi_, 218.]
[Footnote 17: _Numbers_, xxxv. 16 _sqq._ _Deuteronomy_, xix. 4 _sqq._]
[Footnote 18: _Exodus_, xxi. 28-32, 35 _sq._ _Cf._ _Laws of
[Hv]ammurabi_, 250 _sqq._]
[Footnote 19: Rabbinowicz, _Législation criminelle du Talmud_,
p. 173 _sqq._]
[Footnote 20: _Ibid._ p. 174. Benny, _Criminal Code of the Jews
according to the Talmud Massecheth Synhedrin_, p. 115 _sq._]
[Footnote 21: Pollock and Maitland, _op. cit._ ii. 474, n. 4.]
[Footnote 22: _Three Early Assize Rolls for the County of
Northumberland_, p. 96 _sq._]
[Footnote 23: Kovalewsky, _Coutume contemporaine_, p. 295.]
Modern laws generally hold a person liable for harm caused by him
through want of ordinary care and foresight, and it depends on the
nature of the case whether he will have to pay damages or to suffer
punishment. Yet, as we have previously noticed, his punishment is
determined not only by the degree of carelessness of which he was
guilty or the danger to which he exposed his fellow-men, but, largely,
by the harm resulting; whereas, if nobody happens to be hurt, little
notice is taken of his fault. To such an extent are men's judgments in
these matters influenced by external facts, that even nowadays many
among ourselves will hold a person answerable for all the damage which
directly ensues from an act of his, even though no foresight could
have reasonably been expected {309} to look out for it.[24] Not long
ago there were plausible, if insufficient, grounds adduced for
asserting that in English courts a plea that there was neither
negligence nor an intent to do harm was no answer to an action which
charged the defendant with having hurt the plaintiff's body.[25] And
of late years attacks have been made by continental jurists upon the
Roman principle that there is no liability where there is no
fault[26]--a principle which, more or less modified, has been adopted
by modern laws.[27] Although they take pains to point out the
difference between punishment and indemnification, the very language
they use indicates the quasi-ethical basis on which their theory
rests. It is only just, they say, that he who has caused the evil
should compensate for it, since the injured party "is still much more
innocent than he." And the "sense of justice" is appealed to for
compelling a man who faints in the street and in the fall happens to
break some fragile articles to indemnify the owner for his loss.[28]
Thus, whilst loss from accident is generally allowed to lie where it
falls, an exception is made where the instrument of misfortune is a
human being. This is a most unreasonable exception, but one not
difficult to explain. People are ready to blame a person who commits a
harmful deed, whether he deserves blame or not; at the same time they
are apt to overlook the indirect and more remote cause of the harm
which lies in the sufferer's own conduct. Hence the liability, if not
the guilt, is laid on him who is a cause of pain by _doing_ something,
even though it be by merely spasmodic contractions of his muscles;
whereas the other party, who only exposed himself to the risk of being
hurt, is regarded as the "more innocent."
[Footnote 24: Holmes, _Common Law_, p. 80.]
[Footnote 25: Stanley _v._ Powell, in _Law Reports, Queen's Bench
Division_, 1891, i. 86 _sqq._ Pollock and Maitland, _op. cit._
ii. 475 _sq._]
[Footnote 26: von Jhering, _Schuldmoment im römischen Privatrecht_,
_passim_, especially pp. 20 _sqq._, 40 _sqq._ Hepp, _op. cit._ p. 106.]
[Footnote 27: Forsman, _Bidrag till läran om skadestånd i brottmål_,
p. 158 _sq._ Pollock, _Law of Torts_, p. 129 _sqq._]
[Footnote 28: Thon, _Rechtsnorm und subjectives Recht_, p. 106, n. 71.]
Whilst culpability or quasi-culpability is thus imputed to the
innocent committer of a harmful deed, little or no {310} censure is
passed on him whose want of foresight or want of self-restraint is
productive of suffering, if only the effect is sufficiently remote.
This is exemplified by the frivolous leniency with which drunkenness,
not long ago, was looked upon in many civilised countries, and by the
criminal indifference with which law and public opinion still regard
the production of offspring that are almost with certainty doomed to
misery on account of the vices, poverty, or bodily infirmities of the
parents. To interfere here, it is argued, would be to intrude upon the
individual's right of freedom, or to meddle with the affairs of
Providence. But men are not, generally, allowed to do mischief simply
in order to gratify their own appetites, and Providence might equally
well be called in to answer for any other kind of human shortcoming. I
presume the true explanation to be, that in this, as in many other
kindred cases, the cause and effect are so distant from each other
that the near-sighted eye does not distinctly perceive the connection
between them. Indeed, there is hardly any other point in which the
moral consciousness of civilised men still stands in greater need of
intellectual training than in its judgments on cases which display
want of care or foresight. And there is no safer measure of the moral
enlightenment of a man than the scrupulosity with which he considers
the possible consequences of acts, and the number of positive
commandments which are contained in his catalogue of duties.
* * * * *
That moral indignation and moral approval are from the very beginning
felt, not with reference to certain modes of conduct _per se_, but
with reference to persons on account of their conduct, is obvious from
the intrinsic nature of those emotions. As we noticed before, they
derive one of their most essential characteristics from their being
directed against sensitive agents. Hence they may as naturally give
rise to judgments on human character as to judgments on human conduct.
And even when a moral judgment immediately refers to a distinct act,
it takes notice of the {311} agent's will as a whole. The forgiveness
which follows sincere repentance, and the distinction made between
injuries committed deliberately in cold blood and injuries committed
in the heat of passion, indicate that men, in their moral judgments,
are apt to consider something more than a momentary volition. The same
tendency is at the bottom of the common practice of punishing a second
and third offence more severely than the first.
Among the Masai, "if a man is convicted of a particular crime
several times, or constitutes himself a public nuisance, he is
proclaimed an outlaw, his property is confiscated, and he is beaten
away from any settlement or village he goes near. Unless an outlaw can
find friends among non-Masai tribes, he dies of starvation."[29] Among
the Wakamba "a murder is judged by the elders; if it is a man's first
offence of that kind he is punished by a fine. . . . But a man
convicted for the second time of murder is killed at once, everyone
setting on him the moment judgment is delivered. . . . For rape a
first offender is flogged, and has to pay a fine of one cow; for the
second offence he is killed."[30] Among the Wyandots of North America,
"a woman guilty of adultery, for the first offence is punished by
having her hair cropped; for repeated offences her left ear is cut
off."[31] The laws of the Incas, also, were more lenient to a first
offence than to a second;[32] and in the kingdom of Mechoacan, whilst
the first theft was not severely punished, the thief who repeated his
crime was thrown down a precipice and his carcass was left to the
birds of prey.[33] Among the Aleuts, for the first theft "corporal
punishment was inflicted; for the second offence of the kind some
fingers of the right hand were cut off; for the third, the left hand
and sometimes the lips were amputated; and for the fourth offence the
punishment was death." Other crimes, again, "were punished at first by
reprimand by the chief before the community, and upon repetition the
offender was bound and kept in such a condition for some time."[34]
The Kamchadales "burn the hands of people who have been frequently
caught in theft, but for the first offence the thief must restore what
he hath stolen, and live alone {312} in solitude, without expecting
any assistance from others."[35] Among the Ainu, "for breaking into
the storehouse or dwelling of another, a very sound beating was
administered for the first offence; for the second, sometimes the nose
was cut off, sometimes the ears, and in some cases both the nose and
ears were forfeited. . . . Persons who had committed such a crime
twice were driven bag and baggage out of the home and village to which
they belonged."[36] Among the Murray Islanders repetition of an
offence such as murder or robbery generally incurred a penalty of
death, whereas the first offence was punished only by a fine.[37]
According to the Javanese Níti Sástra, if a man violates the law, he
may for the first transgression be punished by a pecuniary fine, for
the second by a punishment affecting his person, but for the third he
may be punished with death.[38] The Penal Code of the Chinese
prescribes that, for the first offence, individuals convicted of being
concerned in a theft shall be branded in the lower part of the left
arm with two words signifying thief, that for the second offence they
shall be branded again with the same words in the lower part of the
right arm, but that for the third offence they shall suffer death by
being strangled, after remaining the usual period in confinement.[39]
In Nepal, in the case of theft or petty burglary, for the first
offence one hand is cut off, for the second the other hand, whilst the
third offence is capital.[40] Herodotus mentions with approval that in
ancient Persia not even the king was allowed to put any one to death
for a single crime.[41] According to the Vendîdâd, the gravity of a
crime does not depend only on the gravity of the deed, but on its
frequency as well.[42] In ancient Rome the repetition of a crime
aggravated its punishment.[43] According to early English law, the
punishment upon a second conviction for nearly every offence was death
or mutilation.[44] In modern European legislation, the principle that
the criminality of certain crimes is increased by their repetition is
generally recognised.
[Footnote 29: Hinde, _The Last of the Masai_, p. 108.]
[Footnote 30: Decle, _op. cit._ p. 487.]
[Footnote 31: Powell, 'Wyandot Government,' in _Ann. Rep. Bur. Ethn._
i. 66.]
[Footnote 32: Herrera, _General History of the West Indies_,
iv. 338 _sqq._]
[Footnote 33: _Ibid._ iii. 255.]
[Footnote 34: Veniaminof, quoted by Petroff, 'Report on Alaska,' in
_Tenth Census of the United States_, p. 152.]
[Footnote 35: Krasheninnikoff, _History of Kamschatka_, p. 179.]
[Footnote 36: Batchelor, _Ainu and their Folk-lore_, p. 285.]
[Footnote 37: Hunt, in _Jour. Anthr. Inst._ xxviii. 6.]
[Footnote 38: Raffles, _History of Java_, i. 262.]
[Footnote 39: _Ta Tsing Leu Lee_, sec. cclxix. p. 285.]
[Footnote 40: Hodgson, _Miscellaneous Essays_, ii. 235.]
[Footnote 41: Herodotus, i. 137.]
[Footnote 42: _Vendîdâd_, iv. 17 _sqq._]
[Footnote 43: Mommsen, _Römisches Strafrecht_, p. 1044.]
[Footnote 44: Stephen, _op. cit._ i. 58.]
The more a moral judgment is influenced by reflection, the more it
scrutinises the character which manifests itself {313} in that
individual piece of conduct by which the judgment is occasioned. But
however superficial it be, it always refers to a will conceived of as
a continuous entity, to a person regarded as a cause of pleasure or
pain. This holds good of savage and civilised men alike. Even tame
animals, in response to a hurt or a benefit, behave differently
towards different persons according to their previous experience of
the agent.
CHAPTER XIII
WHY MORAL JUDGMENTS ARE PASSED ON CONDUCT AND CHARACTER--MORAL
VALUATION AND FREE-WILL
WE have examined the general nature of the subjects of moral judgments
from an evolutionary point of view. We have seen that such judgments
are essentially passed on conduct and character, and that allowance is
made for the various elements of which conduct and character are
composed in proportion as the moral judgment is scrutinising and
enlightened. But an important question still calls for an answer, the
question, Why is this so? We cannot content ourselves with the bare
fact that nothing but the will is morally good or bad. We must try to
explain it.
After what has been said above the explanation is not far to seek.
Moral judgments are passed on conduct and character, because such
judgments spring from moral emotions; because the moral emotions are
retributive emotions; because a retributive emotion is a reactive
attitude of mind, either kindly or hostile, towards a living being (or
something looked upon in the light of a living being), regarded as a
cause of pleasure or as a cause of pain; and because a living being is
regarded as a true cause of pleasure or pain only in so far as this
feeling is assumed to be caused by its will. The correctness of this
explanation I consider to be proved by the fact that not only moral
emotions, but non-moral retributive emotions as well, are felt with
reference to phenomena {315} exactly similar in nature to those on
which moral judgments are passed.
Like moral indignation, the emotion of revenge can be felt only
towards a sentient being, or towards something which is believed to be
sentient. We may be angry with inanimate things for a moment, but such
anger cannot last; it disappears as soon as we reflect that the thing
in question is incapable of feeling pain. Even a dog which, in playing
with another dog, hurts itself, for instance, by running into a tree,
changes its angry attitude immediately it notices the real nature of
that which caused it pain.[1]
[Footnote 1: Hiram Stanley, _Studies in the Evolutionary Psychology of
Feeling_, p. 154 _sq._]
Equivalent to injuries resulting from inanimate things are injuries
resulting accidentally from animate beings. If my arm or my foot gives
a push to my neighbour, and he is convinced that the push was neither
intended nor foreseen nor due to any carelessness whatever on my part,
surely he cannot feel angry with me. Why not? Professor Bain answers
this question as follows:--"Aware that absolute inviolability is
impossible in this world, and that we are all exposed by turns to
accidental injuries from our fellows, we have our minds disciplined to
let unintended evil go by without satisfaction of inflicting some
counter evil upon the offender."[2] Perhaps another answer would be
that an accidental injury in no way affects the "self-feeling" of the
sufferer. But neither of these explanations goes to the root of the
question. Let us once more remember that even a dog distinguishes
between being stumbled over and being kicked; and this can neither be
the result of discipline, nor have anything to do with the feeling of
self-regarding pride.[3] The reason is that the dog scents an enemy in
the person who kicks him, but not in the one who stumbles. My
neighbour, more clearly still, makes a distinction between a part of
my body and myself as a {316} volitional being, and finds that _I_ am
no proper object of resentment when the cause of the hurt was merely
my arm or my foot. An event is attributed to _me_ as its cause only in
proportion as it is considered to have been brought about by my will;
and _I_, regarded as a volitional and sensitive entity, can be a
proper object of resentment only as a cause of pain.
[Footnote 2: Bain, _Emotions and the Will_, p. 185.]
[Footnote 3: The Koussa Kafirs, according to Lichtenstein (_Travels in
Southern Africa_, i. 254), expect a similar discrimination from the
elephant; for "if an elephant is killed . . . they seek to exculpate
themselves towards the dead animal, by declaring to him solemnly, that
the thing happened entirely by accident, not by design."]
We can hardly feel disposed to resent injuries inflicted upon us by
animals, little children, or madmen, when we recognise their inability
to judge of the nature of their acts. They are not the real causes of
the mischief resulting from their deeds, since they neither intended
nor foresaw nor could have foreseen it. "Why," says the Stoic, "do you
bear with the delirium of a sick man, or the ravings of a madman, or
the impudent blows of a child? Because, of course, they evidently do
not know what they are doing. . . . . Would anyone think himself to be
in his perfect mind if he were to return kicks to a mule or bites to a
dog?"[4] Hartley observes, "As we improve in observation and
experience, and in the faculty of analysing the actions of animals, we
perceive that brutes and children, and even adults in certain
circumstances, have little or no share in the actions referred to
them."[5]
[Footnote 4: Seneca, _De ira_, iii. 26 _sq._]
[Footnote 5: Hartley, _Observations on Man_, i. 493.]
Deliberate resentment considers the motives of acts. Suppose that a
man tells us an untruth. Our feelings towards him are not the same if
he did it in order to save our life as if he did it for his own
benefit. Moreover, our anger abates, or ceases altogether, if we find
that he who injured us acted under compulsion, or under the influence
or a non-volitional impulse, too strong for any ordinary man to
resist. Then, the main cause or the injury was not his will, conceived
as a continuous entity. It yielded to the will of somebody else,
reluctantly, as it were out of necessity, or to a powerful conation
which forms no part of his real self. He was merely an instrument in
another's hands, or he was "beside himself," "beyond himself," "out of
his {317} mind." When we are angry, says Montaigne, "it is passion
that speaks, and not we."[6] The religious psychology of the ancient
Greeks ascribed acts committed upon sudden excitement of mind to the
_Ate_ which bewilders the mind and betrays the man into deeds which,
in his sober senses, he is heartily sorry for. Hence the Ate has in
its train the _Litae_--the humble prayers of repentance, which must
make good, before gods and men, whatever has been done amiss.[7] The
Vedic singer apologises, "It is not our own will, Varuna, that leads
us astray, but some seduction--wine, anger, dice, and our folly."[8]
In the Andaman Islands violent outbreaks of ill-temper or resentment
are looked upon as the result of a temporary "possession," and the
victim is, for the time being, considered unaccountable for his
actions.[9] Madness, as we have seen, is frequently attributed to
demoniacal possession. In ancient Ireland, again, it was believed to
be often brought on by malignant magical agency, usually the work of
some druid, hence in the Glosses to the Senchus Mór a madman is
repeatedly described as one "upon whom the magic wisp has been
thrown."[10] What a person does in madness is not an act committed by
_him_.
"Was 't Hamlet wrong'd Laertes? Never Hamlet:
If Hamlet from himself be ta'en away,
And when he's not himself does wrong Laertes,
Then Hamlet does it not, Hamlet denies it.
Who does it, then? His madness: if 't be so,
Hamlet is of the faction that is wrong'd;
His madness is poor Hamlet's enemy."[11]
[Footnote 6: Montaigne, _Essais_, ii. 31 (_[OE]uvres_, p. 396).]
[Footnote 7: _Iliad_, ix. 505 _sqq._ Müller, _Dissertations on the
Eumenides_, p. 108.]
[Footnote 8: _Rig-Veda_, vii. 86. 6.]
[Footnote 9: Man, in _Jour. Anthrop. Inst._ xii. 111.]
[Footnote 10: Joyce, _Social History of Ancient Ireland_, i. 224.]
[Footnote 11: Shakespeare, _Hamlet_, v. 2.]
We resent not only acts and volitions, but also omissions, though
generally less severely; and when a hurt is attributed to want of
foresight, our resentment is, _ceteris paribus_, proportionate to the
degree of carelessness {318} which we lay to the offender's charge. A
person appears to us as the cause of an injury which we think he could
have prevented by his will. But a hurt resulting from carelessness is
not to the same extent as an intentional injury caused by the will.
And the less foresight could have been expected in a given case, the
smaller share has the will in the production of the event.
Our resentment is increased by a repetition of the injury, and reaches
its height when we find that our adversary nourishes habitual ill-will
towards us. On the other hand, as we have noticed in a previous
chapter,[12] the injured party is not deaf to the prayer for
forgiveness which springs from genuine repentance. Like moral
indignation, non-moral resentment takes into consideration the
character of the injurer.
[Footnote 12: _Supra_, ch. iii.]
Passing to the emotion of gratitude, we find a similar resemblance
between the phenomena which give rise to this emotion and those which
call forth moral approval. We may feel some kind of retributive
affection for inanimate objects which have given us pleasure; "a man
grows fond of a snuff-box, of a pen-knife, of a staff which he has
long made use of, and conceives something like a real love and
affection for them."[13] But gratitude, involving a desire to please
the benefactor, can reasonably be felt towards such objects only as
are themselves capable of feeling pleasure. Moreover, on due
deliberation we do not feel grateful to a person who benefits us by
pure accident. Since gratitude is directed towards the assumed cause
of pleasure, and since a person is regarded as a cause only in his
capacity of a volitional being, gratitude presupposes that the
pleasure shall be due to his will. For the same reason motives are
also taken into consideration by the benefited party. As Hutcheson
observes, "bounty from a donor apprehended as morally evil, or
extorted by force, or conferred with some view of self-interest, will
not procure real good-will; nay, it may raise indignation."[14] {319}
Like moral approval, gratitude may be called forth not only by acts
and volitions, but by absence of volitions, in so far as this absence
is traceable to a good disposition of will. And, like the moral judge,
the grateful man is, in his retributive feeling, influenced by the
notion he forms of the benefactor's character.
[Footnote 13: Adam Smith, _Theory of Moral Sentiments_, p. 136.]
[Footnote 14: Hutcheson, _Inquiry concerning Moral Good and Evil_,
p. 157.]
The cognitions by which non-moral resentment and gratitude are
determined are thus, as regards their general nature, precisely
similar to those which determine moral indignation and approval.
Whether moral or non-moral, a retributive emotion is essentially
directed towards a sensitive and volitional entity, or self, conceived
of as the cause of pleasure or the cause of pain. This solves a
problem which necessarily baffles solution in the hands of those who
fail to recognise the emotional origin of moral judgments, and which,
when considered at all, has, I think, never been fully understood by
those who have essayed it. It has been argued, for instance, that
moral praise and blame are not applied to inanimate things and those
who commit involuntary deeds, because they are administered only
"where they are capable of producing some effect";[15] that moral
judgment is concerned with the question of compulsion, because "only
when a man acts morally of his own free will is society sure of
him";[16] that we do not regard a lunatic as responsible, because we
know that "his mind is so diseased that it is impossible by moral
reprobation alone to change his character so that it maybe
subsequently relied upon."[17] The bestowal of moral praise or blame
on such or such an object is thus attributed to utilitarian
calculation;[18] whereas in reality it is determined by the nature of
the moral emotion which lies at the bottom of the judgment. And, as
Stuart Mill observes (though he never seems to have realised the full
import of his objection), whilst we may administer praise and blame
with the express design of influencing conduct, "no anticipation of
salutary effects {320} from our feeling will ever avail to give us the
feeling itself."[19]
[Footnote 15: James Mill, _Fragment on Mackintosh_, p. 370.]
[Footnote 16: Ziegler, _Social Ethics_, p. 56 _sq._]
[Footnote 17: Clifford, _Lectures and Essays_, p. 296.]
[Footnote 18: See also James Mill, _op. cit._ pp. 261, 262, 375.]
[Footnote 19: Stuart Mill, in a note to James Mill's _Analysis of the
Phenomena of the Human Mind_, ii. 323.]
* * * * *
The nature of the moral emotions also gives us the key to another
important problem--a problem which has called forth endless
controversies--namely, the co-existence of moral responsibility with
the general law of cause and effect. It has been argued that
responsibility, and moral judgments generally, are inconsistent with
the notion that the human will is determined by causes; that "either
free-will is a fact, or moral judgment a delusion." The argument has
been well summed up by Sir Leslie Stephen as follows:--"Moral
responsibility, it is said, implies freedom. A man is only responsible
for that which he causes. Now the _causa causæ_ is also the _causa
causati_. If I am caused as well as cause, the cause of me is the
cause of my conduct; I am only a passive link in the chain which
transmits the force. Thus, as each individual is the product of
something external to himself, his responsibility is really shifted to
that something. The universe or the first cause is alone responsible,
and since it is responsible to itself alone, responsibility becomes a
mere illusion."[20] We are told that, if determinism were true, human
beings would be no more proper subjects of moral valuation than are
inanimate things; that the application of moral praise and blame would
be "in itself as absurd as to applaud the sunrise or be angry at the
rain";[21] that the only admiration which the virtuous man might
deserve would be the kind of admiration "which we justly accord to a
well-made machine."[22] Nor are these inferences from the doctrine of
determinism only weapons forged by its opponents; they are shared by
many of its own adherents. Richard Owen and his followers maintained
that, since a man's character is made _for_ him, not _by_ him, there
is no justice in punishing {321} him for what he cannot help.[23] To
Stuart Mill responsibility simply means liability to punishment,
inflicted for a utilitarian purpose.[24] So also Prof. Sidgwick--whose
attitude towards the free-will theory is that of a sceptic--argues
that the common retributive view of punishment, and the ordinary
notions of "merit," "demerit," and "responsibility," involve the
assumption that the will is free, and that these terms, if used at
all, have to be used in new significations. "If the wrong act," he
says, "and the bad qualities of character manifested in it, are
conceived as the necessary effects of causes antecedent or external to
the existence of the agent, the moral responsibility--in the ordinary
sense--for the mischief caused by them can no longer rest on him. At
the same time, the Determinist can give to the terms 'ill-desert' and
'responsibility' a signification which is not only clear and definite,
but, from an utilitarian point of view, the only suitable meaning. In
this view, if I affirm that A is responsible for a harmful act, I mean
that it is right to punish him for it; primarily, in order that the
fear of punishment may prevent him and others from committing similar
acts in future."[25]
[Footnote 20: Leslie Stephen, _Science of Ethics_, p. 285.]
[Footnote 21: Martineau, _Types of Ethical Theory_, ii. 41 _sq._]
[Footnote 22: Balfour, _Foundations of Belief_, p. 25.]
[Footnote 23: Stuart Mill, _Examination of Sir William Hamilton's
Philosophy_, p. 506.]
[Footnote 24: _Ibid._ p. 506 _sqq._]
[Footnote 25: Sidgwick, _Methods of Ethics_, p. 71 _sq._]
If these conclusions are correct it is obvious that, whether the
infliction of punishment be justifiable or not, the _feeling_ of moral
indignation or moral approval is, from the deterministic point of
view, absurd. And yet, as a matter of fact, these emotions are felt by
determinists and libertarians alike. Apparently, they are not in the
least affected by the notion that the human will is subject to the
general law of cause and effect. Emotions are always determined by
specific cognitions, and last only as long as the influence of those
cognitions lasts. It makes me sorry to hear that some evil has
befallen a friend; but my sorrow disappears at once when I find that
the rumour was false. I get angry with a person who hurts me; but my
anger subsides as soon as I recognise that the hurt was purely
accidental. My indignation is aroused by an {322} atrocious crime; but
it ceases entirely when I hear that the agent was mad. On the other
hand, however convinced I am that a person's conduct and character are
in every detail a product of causes, that does not prevent me from
feeling towards him retributive emotions--either anger or gratitude,
or moral resentment or approval. Hence I conclude that a retributive
emotion is not essentially determined by the cognition of free-will. I
hold that Spinoza is mistaken in his assumption that men feel more
love or hatred towards one another than towards anything else, because
they think themselves to be free.[26] And I attribute the conception
that moral valuation is inconsistent with determinism either to a
failure to recognise the emotional origin of moral judgments or to
insufficient insight into the true nature of the moral emotions. At
the same time it seems easy to explain the fallacy which lies at the
bottom of that conception.
[Footnote 26: Spinoza, _Ethica_, iii. 49, Note.]
We have seen that the object of moral approval and disapproval is the
will, and that a person's responsibility is lessened in proportion as
his will is exposed to the pressure of non-volitional conations. Full
responsibility thus presupposes freedom from such pressure, and,
particularly, freedom from external compulsion. Hence the inference
that it also presupposes freedom from causation, and that complete
determination involves complete irresponsibility. Compulsion is
confounded with causation; and this confusion is due to the fact that
the cause which determines the will is actually looked upon in the
light of a constraining power outside the will.
The popular mind has a strong belief in the law of cause and effect.
When reflecting on the matter, it admits that everything which happens
in this world has a cause; and if the natural cause is hidden, it
readily calls in a supernatural cause to account for the event. Now,
in the case of human volitions the chain of causation is often
particularly obscure; as Spinoza said, whilst men are conscious of
their volitions and desires, they "never even {323} dream, in their
ignorance, of the causes which have disposed them so to wish and
desire."[27] Hence, when in a philosophic mood, they are liable to
attribute their acts to the influence of an external power ruling over
human affairs, a god or an all-powerful fate. No doubt, Providence and
Fate[28] may effect their purposes without the will of man as their
tool; what happens "by chance," being frequently no less wonderful
than any decree of a human will, may likewise be traced to a
supernatural cause. But, on the other hand, the fact that the deeds of
men are generally preceded by volitions, is so obvious that it could
not escape even the simplest mind--indeed, so strongly are primitive
men impressed by this fact that they are apt to attribute every event
to a will. Acknowledging, then, the connection between volition and
deed, the fatalist regards the former only as an instrument in the
hands of a force outside the agent, which compels his will to execute
its plans. Sometimes it reaches its goal in a way quite unforeseen by
the agent himself. Muhammed said, "When God hath ordered a creature to
die in any particular place, He causeth his wants to direct him to
that place";[29] and it is a popular saying throughout Islam that
"whenas Destiny descends she blindeth human sight."[30] Sometimes the
external power causes its victim to will its decree, by exciting in
him some irresistible passion, as when Zeus urged Clytemnestra to the
slaughter of Agamemnon; or the volitions of a person are themselves
regarded as decreed by that power. In Wärend, in Sweden, when somebody
has killed another, as also when the manslayer himself suffers the
penalty of death, the women say, full of compassion, "Well, this was
his destiny, to be sure," or "Poor fellow, it was a pitiful fate."[31]
In one of the Pahlavi texts the following words are put into the mouth
of the Spirit of {324} Wisdom:--"Even with the might and powerfulness
of wisdom and knowledge, even then it is not possible to contend with
destiny. Because, when predestination as to virtue, or as to the
reverse, comes forth, the wise becomes wanting in duty, and the astute
in evil becomes intelligent; the faint-hearted becomes braver, and the
braver becomes faint-hearted; the diligent becomes lazy, and the lazy
acts diligently. Just as is predestined as to the matter, the cause
enters into it, and thrusts out everything else."[32]
[Footnote 27: _Ibid._ pt. i. Appendix.]
[Footnote 28: In a Pahlavi text fate is defined as "that which is
ordained from the beginning," and divine providence as that which the
sacred beings "also grant otherwise" (_Dînâ-î Maînôg-î Khirad_,
xxiv. 6 _sq._).]
[Footnote 29: Lane, _Arabian Society in the Middle Ages_, p. 6.]
[Footnote 30: Burton, in his translation of the _Arabian Nights_, i.
62, n. 2.]
[Footnote 31: Hyltén-Cavallius, _Wärend och Wirdarne_, i. 206.]
[Footnote 32: _Dînâ-î Maînôg-î Khirad_, xxiii. 3 _sqq._]
Nor is it only the popular mind that, when human volitions are
concerned, interprets causation as compulsion. Even such philosophers
as Hamilton[33] and Mansel[34] seemed quite unable to distinguish
between determinism and fatalism. Professor Laurie likewise
observes:--"Determinism is the term adopted of late years to veil
fatalism and confound issues . . . . Freedom or fate, these are the
sole alternatives."[35] Surely, it is those who identify determinism
with fatalism that "confound issues." And a similar confusion lurks
behind the main argument which has been adduced in support of
free-will. It is said that "I ought" implies "I can," and that men are
not accountable for what they cannot avoid. This is perfectly true if
by "cannot" is meant compulsion, and by "can" freedom from compulsion.
But it is certainly not true if "I can" is intended to mean that "I"
am a first cause, not determined by anything else.
[Footnote 33: Hamilton, _Lectures on Metaphysics_, ii. 410 _sqq._]
[Footnote 34: Mansel, _Prolegomena Logica_, p. 329 _sqq._]
[Footnote 35: Laurie, _Ethica_, pp. 307, 319.]
When a person's will is believed to be constrained by a power outside
him, he can obviously not be held responsible for what he does under
the influence of such constraint. We are responsible only for that
which is due to our will. A licentious man who has grown up in a
corrupt society is less blamable than an equally licentious man who
has always lived under conditions favourable to virtue; and if we hear
of a criminal that he was kidnapped as a child by a band of
pickpockets and trained to their profession, we {325} no doubt look
upon him with some indulgence. In these cases, however, it may be said
that, though the person's conduct is largely due to the influence of
external circumstances upon his will, this influence was not
irresistible, that he might have saved himself with an effort of will,
and that consequently he is not wholly irresponsible. But in the case
of a restraining destiny no escape is possible; the compulsion is
complete. Hence the logical outcome of radical fatalism is a denial of
all moral imputability, and a repudiation of all moral judgment.[36]
[Footnote 36: Of the inhabitants of North-Eastern Africa, Munzinger
observes (_Ostafrikanische Studien_, p. 66):--"Seien sie Christen,
Heiden, odor Mohammedaner, schreiben sie Leben und Tod, Glück und
Unglück, Tugend und Verbrechen der unmittelbaren Hand Gottes zu. Mit
dieser blinder Nothwendigkeit entschuldigt sich der Missethäter,
tröstet sich der Unglückliche." _Cf._ also Doughty, _Arabia Deserta_,
i. 155, on the Bedouins. However, men are not philosophers in the
ordinary practice of life, hence the fatalist is generally as ready as
anybody else to judge on his neighbour's conduct. According to various
ancient writers, the power of destiny is limited so as not to exclude
personal responsibility (see Schmidt, _Ethik der alten Griechen_, i.
59 _sq._).]
Not so with determinism. Whilst fatalism presupposes the existence of
a person who is constrained by an outward power, determinism regards
the person himself as in every respect a product of causes. It does
not assume any part of his will to have existed previous to his
formation by these causes; his will is not constrained by them, it is
made by them. When we say of a person that he is influenced by
external circumstances or subdued by fate, we regard _him_ as existing
independently of that which influences or subdues him, we attribute to
him an innate character which is acted upon from the outside. He would
have been different if he had grown up under different conditions of
life, or if fate had left him alone. But it would be absolutely
meaningless to say that he would be different if the causes to which
he owes his existence had been different; for instance, if he were the
offspring of different parents. This shows that we distinguish between
the original self of a person and the self which is partly innate and
partly the product of external circumstances. His innate character
belongs to his original {326} self; and, strictly speaking, it is on
the innate character only that the scrutinising moral judge, so far as
possible, passes his judgment, carefully considering the degree of
pressure to which it has been exposed both from the non-voluntary part
of the individual himself and from the outside world.[37] According to
the fatalist, the innate character is _compelled_; hence personal
responsibility is out of the question. According to the determinist
the innate character is _caused_; but this has nothing whatever to do
with the question of responsibility. The moral emotions are no more
concerned with the origin of the innate character than the aesthetic
emotions are concerned with the origin of the beautiful object. In
their capacity of retributive emotions, the moral emotions are
essentially directed towards sensitive and volitional entities
conceived, not as uncaused themselves, but only as causes of pleasure
or pain.
[Footnote 37: That the proper subject of moral judgment is the innate
character was emphasised by Schopenhauer in his prize-essays on _Die
Freiheit des Willens_ (_Sämmtliche Werke_, vii. 83 _sqq._) and _Die
Grundlage der Moral_ (_ibid._ vii. 273 _sqq._). The innate character,
he says, that real core of the whole man, contains the germ of all his
virtues and vices. And though Schopenhauer be mistaken in his
statement that a person's character always remains the same, it seems
to me indisputable that the succeeding changes to which it may be
subject are imputable to _him_ only in so far as they are caused by
his innate character.]
CHAPTER XIV
PRELIMINARY REMARKS--HOMICIDE IN GENERAL
WE have discussed the general nature of those phenomena which have a
tendency to evoke moral blame or moral praise. We have seen that moral
judgments are passed on conduct and character, and we have seen why
this is the case. It now remains for us to examine the particular
modes of conduct which are subject to moral valuation, and to consider
how these modes of conduct are judged of by different peoples and in
different ages.
If carried out in every detail such an investigation could never come
to an end. Among other things, it would have to take into account all
customs existing among the various races of men, since every custom
constitutes a moral rule. And the impossibility of any such
undertaking becomes apparent when we consider the extent to which the
conduct of man, and especially of savage man, is hampered by custom.
Among the Wanika, for instance, "if a man dares to improve the style
of his hut, to make a larger doorway than is customary; if he should
wear a finer or different style of dress to that of his fellows, he is
instantly fined."[1] If, during the performance of a ceremony, the
ancestors of an Australian native were in the habit of painting a
white line across the forehead, their descendant must do the same.[2]
Dr. Nansen's statement with reference to the Greenlanders, {328} that
their communities had originally customs and fixed rules for every
possible circumstance,[3] is essentially true of many, if not all, of
the lower races.
[Footnote 1: New, _Life, Wanderings, and Labours in Eastern Africa_,
p. 110.]
[Footnote 2: Spencer and Gillen, _Native Tribes of Central Australia_,
p. 11.]
[Footnote 3: Nansen, _Eskimo Life_, p. 104.]
It is necessary, then, that we should restrict ourselves to the more
important modes of conduct with which the moral consciousness of
mankind is concerned. These modes of conduct may be conveniently
divided into six groups. The first group includes such acts,
forbearances, and omissions as directly concern the interests of other
men, their life or bodily integrity, their freedom, honour, property,
and so forth. The second includes such acts, forbearances, and
omissions as chiefly concern a man's own welfare, such as suicide,
temperance, asceticism. The third group, which partly coincides with,
but partly differs from, both the first and the second, refers to the
sexual relations of men. The fourth includes their conduct towards the
lower animals; the fifth, their conduct towards dead persons; the
sixth, their conduct towards beings, real or imaginary, that they
regard as supernatural. We shall examine each of these groups
separately, in the above order. And, not being content with a mere
description of facts, we shall try to discover the principle which
lies at the bottom of the moral judgment in each particular case.
* * * * *
It is commonly maintained that the most sacred duty which we owe our
fellow-creatures is to respect their lives. I venture to believe that
this holds good not only among civilised nations, but among the lower
races as well; and that, if a savage recognises that he has any moral
obligations at all to his neighbours, he considers the taking of their
lives to be a greater wrong than any other kind of injury inflicted
upon them.
Among various uncivilised peoples, however, human life is said to be
held very cheap.
The Australian Dieyerie, we are told, would for a mere trifle kill
their dearest friend.[4] In Fiji there is an "utter disregard of {329}
the value of human life."[5] A Masai will murder his friend or
neighbour in a fight over a herd of captured cattle, and "live not a
whit the less merrily afterwards."[6] Among the Bachapins, a Bechuana
tribe, murder "excites little sensation, excepting in the family of
the person who has been murdered; and brings, it is said, no disgrace
upon him who has committed it; nor uneasiness, excepting the fear of
their revenge."[7] The Oráons of Bengal "are ready to take life on
very slight provocation," and Colonel Dalton doubts whether they see
any moral guilt in it.[8] Some of the Himalayan mountaineers are
reported to put men to death merely for the satisfaction of seeing the
blood flow and of marking the last struggles of the victim.[9] Among
the Pathans, on the north-western frontier of the Punjab, "there is
hardly a man whose hands are unstained," and each person "counts up
his murders."[10]
[Footnote 4: Gason, 'Manners and Customs of the Dieyerie Tribe,' in
Woods, _Native Tribes of South Australia_, p. 258.]
[Footnote 5: Williams and Calvert, _Fiji and the Fijians_, p. 115.]
[Footnote 6: Johnston, _Kilima-njaro Expedition_, p. 419.]
[Footnote 7: Burchell, _Travels in the Interior of Southern Africa_,
ii. 554.]
[Footnote 8: Dalton, _Descriptive Ethnology of Bengal_, p. 256.]
[Footnote 9: Fraser, _Journal of a Tour through the Him[=a]l[=a]
Mountains_, p. 267.]
[Footnote 10: Temple, quoted by Spencer, _Principles of Ethics_, i.
343. For other instances of the indifference of savages to human life,
see Egede, _Description of Greenland_, p. 123; Cranz, _History of
Greenland_, i. 177; Holm, 'Ethnologisk Skizze af Angmagsalikerne,' in
_Meddeleser om Grönland_, x. 87, 179 _sq._; Coxe, _Russian Discoveries
between Asia and America_, p. 257 (Aleuts of Unalaska);
Krasheninnikoff, _History of Kamtschatka_, p. 204; Steller,
_Beschreibung von dem Lande Kamtschatka_, p. 294; Boyle, _Adventures
among the Dyaks of Borneo_, p. 116 (Malays); Powell, _Wanderings in a
Wild Country_, p. 262 (aborigines of New Britain); Scaramucci and
Giglioli, 'Notizie sui Danakil,' in _Archivio per antropologia e la
etnologia_, xiv. 26; Wilson and Felkin, _Uganda_, ii. 310 (Gowane);
Schweinfurth, _Heart of Africa_, i. 286 (Bongo); Arnot, _Garenganze_,
p. 71 (Barotse); Tuckey, _Expedition to Explore the River Zaire_, p.
383 (Congo natives); Waul, _Five Years with the Congo Cannibals_, p.
105 (Bolobo).]
On the other hand, there are uncivilised peoples among whom homicide
or murder is said to be hardly known.
Among the Omahas, "before liquor was introduced there were no
murders, even when men quarrelled."[11] Captain Lyon could learn of no
instances of manslaughter having ever occurred among the Eskimo of
Igloolik.[12] In Tutuila, of the Samoa group, according to Brenchley,
there had been but one case of assassination in the course of twenty
years.[13] The Veddahs of Ceylon know of manslaughter only as a
punishment.[14] {330} The Bedouin of the Euphrates, says Mr. Blunt, "is
essentially humane, and never takes life needlessly. If he has killed
a man in war he rather conceals the fact than proclaims it aloud,
while murder or even homicide is almost unknown among the tribes."[15]
Among the Bakwiri, in Cameroon, Zoller never heard of any person
having killed a member of his own community.[16] Murders, says
Caillié, "are rare among the Bambaras, and never committed by the
Mandingoes."[17] Among the Wanika "wilful cold-blooded murders are
almost unknown."[18] Among the Basutos perfect safety is enjoyed "on
roads where the traveller might have been robbed a hundred times over
without the least hope of aid, and in houses where the doors and
windows have neither bolts nor bars," and cases of murder are very
rare.[19]
[Footnote 11: Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._
iii. 369.]
[Footnote 12: Lyon, _Private Journal_, p. 350.]
[Footnote 13: Brenchley, _Jottings during the Cruise of H.M.S.
"Curaçoa" among the South Sea Islands_, p. 58.]
[Footnote 14: Sarasin, _Ergebnisse naturwissenschaftlicher Forschungen
auf Ceylon_, iii. 539. _Cf._ Tennent, _Ceylon_, ii. 444. Hartshorne,
in _Indian Antiquary_, viii. p. 320.]
[Footnote 15: Blunt, _Bedouin Tribes of the Euphrates_, ii. 203. _Cf._
_ibid._ ii. 207.]
[Footnote 16: Zöller, _Kamerun_, i. 188.]
[Footnote 17: Caillié, _Travels through Central Africa_, i. 353.]
[Footnote 18: New, _op. cit._ p. 98.]
[Footnote 19: Casalis, _Basutos_, p. 301. For other instances, see
Hall, _Arctic Researches_, p. 571 (Eskimo); Dobrizhoffer, _Account of
the Abipones_, ii. 148; Turner, _Samoa_, p. 178; Ellis, _Tour through
Hawaii_, p. 429; Brooke, _Ten Years in Saráwak_, i. 61 (Sea Dyaks);
Low, _Sarawak_, p. 133; Marsden, _History of Sumatra_, p. 471 (Poggi
Islanders); Steller, _De Sangi-Archipel_, p. 26; Riedel, _De sluik- en
kroesharige rassen tusschen Selebes en Papua_, p. 41 (Ambon and Uliase
Islanders); von Siebold, _Aino auf der Insel Yesso_, pp. 11, 35;
Munzinger, _Ostafrikanische Studien_, p. 532 (Barea and Kunáma);
Holub, _Seven Years in South Africa_, ii. 319 (Marutse); Maclean,
_Compendium of Kafir Laws and Customs_, pp. 61, 143 _sq._; Shooter,
_Kafirs of Natal_, p. 137.]
In other instances homicide is expressly said to be regarded as wrong.
The Greenlanders described by Dr. Nansen hold it atrocious to kill
a fellow-creature, except in some particular cases.[20] The Dacotahs
say that it is a great crime to take their fellow's life, unless in
revenge, "because all have a right to live."[21] In Tierra del Fuego
homicide rarely occurs, as Mr. Bridges remarks, because of an
inveterate custom according to which human life is held sacred: "le
meurtrier est mis au ban de ses compatriotes; isolé de tous, il est
fatalement condamné à périr de faim ou à tomber un jour sous les coups
d'un groupe de justiciers improvisés."[22] The Andaman Islanders
condemn murder as _y[=u]bda_, or sin.[23] The natives of Botany Bay,
New {331} South Wales, though a trivial offence in their ideas
justifies the murder of a man, "highly reprobate the crime when
committed without what they esteem a just cause."[24] According to Mr.
Curr's experience, the Australian Black undoubtedly feels that murder
is wrong, and its committal brings remorse; even after the
perpetration of infanticide or massacres, though both are practised
without disguise, those engaged in them are subject to remorse and low
spirits for some time.[25]
[Footnote 20: Nansen, _Eskimo Life_, p. 162.]
[Footnote 21: Prescott, in Schoolcraft, _Indian Tribes of the United
States_, ii. 195.]
[Footnote 22: Hyades and Deniker, _Mission scientifique du Cap Horn_,
vii. 374, 243.]
[Footnote 23: Man, in _Jour. Anthr. Inst._ xii. 112.]
[Footnote 24: Barrington, _History of New South Wales_, p. 19. _Cf._
Lumholtz, _Among Cannibals_, p. 126 (natives of Northern
Queensland).]
[Footnote 25: Curr, _The Australian Race_, i. 100, 43 _sq._ For other
instances, see Keating, _Expedition to the Source of St. Peter's
River_, i. 127 (Potawatomis); Harmon, _Journal of Voyages in the
Interior of North America_, p. 348 (Indians on the east side of the
Rocky Mountains); Hall, _Arctic Researches_, p. 572 (Eskimo); Mariner,
_Natives of the Tonga Islands_, ii. 162; Macdonald, _Oceania_, p. 208
(Efatese); Yate, _Account of New Zealand_, p. 145; Arbousset and
Daumas, _Exploratory Tour to the North-East of the Colony of the Cape
of Good Hope_, p. 322 (Bechuanas); Fritsch, _Die Eingeborenen
Süd-Afrikra's_, p. 322 (Hottentots).]
It is of particular importance in this connection to note that, in
early civilisation, blood-revenge is regarded not as a private matter
only, but as a duty, and that, where this custom does not prevail, the
community punishes the murderer, frequently with death. We may without
hesitation accept Professor Tylor's statement that "no known tribe,
however low and ferocious, has ever admitted that men may kill one
another indiscriminately."[26] In every society--even where human life
is, generally speaking, held in low estimation--custom prohibits
homicide within a certain circle of men. But the radius of the circle
varies greatly.
[Footnote 26: Tylor, 'Primitive Society,' in _Contemporary Review_,
xxi. 714.]
Savages carefully distinguish between an act of homicide committed
within their own community and one where the victim is a stranger.
Whilst the former is under ordinary circumstances disapproved of, the
latter is in most cases allowed, and often regarded as praiseworthy.
It is a very common notion in savage ethics that the chief virtue of a
man is to be successful in war and to slay many enemies.
Among the Káfirs of the Hindu-Kush "killing strangers might or
might not be considered inexpedient, but it would {332} hardly be
considered a crime"; killing fellow-tribesmen, on the other hand, is
looked upon in a very different light.[27] The Koriaks do not regard
murder as a great crime, unless it occur within their own tribe.[28]
The early Aleuts considered the killing of a companion a crime worthy
of death, "but to kill an enemy was quite another thing."[29] To an
Aht Indian the murder of a man is no more than the killing of a dog,
provided that the victim is not a member of his own tribe.[30]
According to Humboldt, the natives of Guiana "detest all who are not
of their family, or their tribe; and hunt the Indians of a
neighbouring tribe, who live at war with their own, as we hunt
game."[31] In the opinion of the Fuegians, "a stranger and an enemy
are almost synonymous terms," hence they dare not go where they have
no friends, and where they are unknown, as they would most likely be
destroyed.[32] The Australian Black nurtures an intense hatred of every
male at least of his own race who is a stranger to him, and would
never neglect to assassinate such a person at the earliest moment that
he could do so without risk to himself.[33] In Melanesia, also, a
stranger as such was generally throughout the islands an enemy to be
killed.[34]
[Footnote 27: Scott Robertson, _Káfirs of the Hindu-Kush_, p. 194.]
[Footnote 28: Krasheninnikoff, _op. cit._ p. 232.]
[Footnote 29: Veniaminof, quoted by Petroff, 'Report on Alaska,' in
_Tenth Census of the Untied States_, p. 155.]
[Footnote 30: Sproat, _Scenes and Studies of Savage Life_, p. 152.]
[Footnote 31: von Humboldt, _Personal Narrative of Travels_, v. 422.]
[Footnote 32: Stirling, in _South Ammerican Missionary Magazine_, iv.
11. Bridges, in _A Voice for South America_, xiii. 210.]
[Footnote 33: Curr, _The Australian Race_, i. 64, 85 _sq._ Mathew, in
_Jour. & Proceed. Roy. Soc. N. S. Wales_, xviii. 398.]
[Footnote 34: Codrington, _Melanesians_, p. 345.]
In Savage Island the slaying of a member of another tribe--that is,
a potential enemy--"was a virtue rather than a crime."[35] To a young
Samoan it was the realisation of his highest ambition to be publicly
thanked by the chiefs for killing a foe in mortal combat.[36]
"According to Fijian beliefs, men who have not slain any enemy are, in
the other world, compelled to beat dirt with their clubs--the most
degrading punishment the native mind can conceive--because they used
their club to so little purpose;[37] and in Futuna it was deemed no
less necessary to have poured out blood on the field of battle in
order to hold a part in the happy future life.[38] In the Western
islands of Torres Straits "it was a meritorious deed to kill
foreigners either in fair fight {333} or by treachery, and honour and
glory were attached to the bringing home of the skulls of the
inhabitants of other islands slain in battle."[39] In the Solomon
Islands,[40] New Guinea,[41] and various parts of the Malay
Archipelago, he who has collected the greatest number of human heads
is honoured by his tribe as the bravest man; and some peoples do not
allow a man to marry until he has cut off at least one human head.[42]
Among many of the North American Indians, again, he who can boast of
the greatest number of scalps is the person most highly esteemed.[43]
Among the Seri Indians the highest virtue "is the shedding of alien
blood; and their normal impulse on meeting an alien is to kill, unless
deterred by fear."[44] Among the Chukchi "it is held criminal to
thieve or murder in the family or race to which a person belongs; but
these crimes committed elsewhere are not only permitted, but held
honourable and glorious."[45] So, too, the Gallas consider it
honourable to kill an alien, though criminal to kill a countryman.[46]
[Footnote 35: Thomson, _Savage Island_, p. 104. See also _ibid._ p. 94.]
[Footnote 36: Pritchard, _Polynesian Reminiscences_, p. 57.]
[Footnote 37: Seemann, _Viti_, p. 401. _Cf._ Williams and Calvert,
_op. cit._ p. 97 _sq._; Erskine, _Islands of the Western Pacific_,
p. 248.]
[Footnote 38: Smith, in _Jour. Polynesian Society_, i. 39.]
[Footnote 39: Haddon, in _Reports of the Cambridge Anthropological
Expedition to Torres Straits_, v. 277.]
[Footnote 40: Romilly, _Western Pacific_, p. 73. Penny, _Ten Years in
Melanesia_, p. 46. Codrington, _op. cit._ p. 345.]
[Footnote 41: Romilly, _Western Pacific_, p. 76.]
[Footnote 42: Bock, _Head-Hunters of Borneo_, pp. 216, 221, &c.
(Dyaks). Bickmore, _Travels in the East Indian Archipelago_, p. 205
(Alfura of Ceram). Dalton, _op. cit._ p. 40 (Nagas of Upper Assam).]
[Footnote 43: The well-known practice of scalping, though very common,
was not universal among the North American Indians (see Gibbs, 'Tribes
of Western Washington and Northwestern Oregon,' in _Contributions to
N. American Ethnology_, i. 192; Powers, _Tribes of California_, p. 321).]
[Footnote 44: McGee, 'Seri Indians,' in _Ann. Rep. Bur. Ethnol._
xvii. 132.]
[Footnote 45: Georgi, _Russia_, iii. 183.]
[Footnote 46: Macdonald, _Africana_, i. 229. For other instances, see
Harmon, _op. cit._ p. 301 (Tacullies); Burton, _City of the Saints_,
p. 139 (Dacotahs); Macpherson, _Memorials of Service in India_, p.
94 (Kandhs); MacMahon, _Far Cathay_, p. 262 (Indo-Burmese border
tribes); Macdonald, _Africana_, i. 194 _sq._ (Eastern Central
Africans); Johnston, _Kilima-njaro Expedition_, p. 419 (Masai).]
At the same time there are, among the lower races, various instances
in which the rule, "Thou shalt not kill," applies even to foreigners.
Hospitality, as will be seen in a subsequent chapter, is a stringent
duty in the savage world. Custom requires that the host should
entertain and protect a stranger who comes as his guest, and by
killing him the host would perpetrate an outrage hardly possible.
Moreover, even in the case of intertribal relations, we must not
conclude that what is allowed in war is also allowed in times of
peace. The prohibition of homicide may extend beyond the tribal
border, to {334} members of different tribes who for some reason or
other are on friendly terms with each other.[47] We must not suppose
that a tribe of savages generally either lives in a state of complete
isolation, or is always at odds with its neighbours. In Australia, for
instance, one tribe of natives, as a rule, entertains amicable
relations with one, two, or more other tribes.[48] Among the Central
Australian natives, say Messrs. Spencer and Gillen, "there is no such
thing as one tribe being in a constant state of enmity with another";
on the contrary, where two tribes come into contact with one another
on the border land of their respective territories, friendly feelings
are maintained between the members of the two.[49] Some uncivilised
peoples are even said to have no wars. The Veddahs of Ceylon never
make war upon each other.[50] According to the reports of the oldest
inhabitants of Umnak and Unalaska, the people there had never been
engaged in war either among themselves or with their neighbours,
except once with the natives of Alaska.[51] To the Greenlanders
described by Dr. Nansen war is "incomprehensible and repulsive, a
thing for which their language has no word."[52]
[Footnote 47: See, _e.g._, Scott Robertson, _op. cit._ p. 194 (Káfirs
of the Hindu-Kush).]
[Footnote 48: Curr, _The Australian Race_, i. 62 _sq._]
[Footnote 49: Spencer and Gillen, _Native Tribes of Central
Australia_, p. 32.]
[Footnote 50: Sarasin, _op. cit._ iii. 488.]
[Footnote 51: Coxe, _op. cit._ p. 244.]
[Footnote 52: Nansen, _Eskimo Life_, p. 162.]
That savages to some extent recognise the existence of intertribal
rights in times of peace is obvious from certain customs connected
with their wars. Some South Sea Islanders and North American Indians
consider it necessary for a party which is about to attack another to
give notice beforehand of their intention, in order that their
opponents may be prepared to meet them.[53] The cessation of
hostilities is often accompanied by the conclusion of a special treaty
and by ceremonies calculated to make it binding.[54] The Tahitians,
for instance, wove a wreath of {335} green boughs furnished by each
side, exchanged two young dogs, and, having also made a band of cloth
together, offered the wreath and the band to the gods with
imprecations on the side which should first violate so solemn a treaty
of peace.[55] Nor does savage custom always allow indiscriminate
slaughter even in warfare. The inviolability of heralds is not
infrequently recognised.[56] Among the aborigines of New South Wales
the tribal messenger known to be a herald by the red net which he
wears round his forehead, passes in safety between and through hostile
tribes;[57] and among the North American Omahas "the bearer of a peace
pipe was generally respected by the enemy, just as the bearer of a
flag of truce is regarded by the laws of war among the so-called
civilised nations."[58] And many uncivilised races have made it a rule
in war to spare the weak and helpless.
[Footnote 53: Hale, _U.S. Exploring Expedition. Vol. VI. Ethnography
and Philology_, p. 72 (Micronesians). Gibbs, _loc. cit._ p. 190
(Indians of Western Washington and North-Western Oregon).]
[Footnote 54: See Farrer, _Military Manners and Customs_, p. 162 _sq._]
[Footnote 55: Ellis, _Polynesian Researches_, i. 318.]
[Footnote 56: See Farrer, _Militarv Manners and Customs_, p. 161.]
[Footnote 57: Fraser, _Aborigines of New South Wales_, p. 41.]
[Footnote 58: Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._
iii. 368.]
The Samoans considered it cowardly to kill a woman;[59] and even in
Fiji the "enlightened party" objected to the killing of women, urging
that it is "just as cowardly to kill a woman as a baby."[60] The
Abipones, in their wars, "generally spared the unwarlike, and carried
away innocent boys and girls unhurt."[61] An old Spanish writer tells
us of the Guanches of Gran Canaria that, "in their wars, they held it
as base and mean to molest or injure the women and children of the enemy,
considering them as weak and helpless, therefore improper objects of
their resentment";[62] and similar views prevail among the Berbers
(Shlu[h.]) of Southern Morocco, as also among the Algerian Kabyles[63]
and the Touareg.[64] Though the Masai and Wa-kikuyu "are eternally at
war to the knife with each other, there is a compact between them not
to molest the womenfolk of either party."[65] "The Masai," says Mr.
Hinde, "never interfere with women in their raids, and the women cheer
{336} loudly and encourage their relatives during the fight."[66]
Among the Latukas, though women are employed as spies and thus become
exceedingly dangerous in war, there is nevertheless a general
understanding that no woman shall be killed.[67] The Basutos maintain
that respect should be paid during war to women, children, and
travellers, as also that those who surrender should be spared and open
to ransom; and, though these rules are not invariably respected, the
public voice always disapproves of their violation.[68]
[Footnote 59: Turner, _Nineteen Years in Polynesia_, p. 304.]
[Footnote 60: Seemann, _Viti_, p. 180.]
[Footnote 61: Dobrizhoffer, _op. cit._ ii. 141.]
[Footnote 62: Abreu de Galindo, _History of the Discovery and Conquest
of the Canary Islands_, p. 66.]
[Footnote 63: Hanoteau and Letourneux, _La Kabylie_, ii. 76.]
[Footnote 64: Hourst, _Sur le Niger et au pays des Touaregs_,
p. 223 _sq._]
[Footnote 65: Thomson, _Through Masai Land_, p. 177.]
[Footnote 66: Hinde, _The Last of the Masai_, p. 6, n.*]
[Footnote 67: Baker, _Albert N'yanza_, i. 355.]
[Footnote 68: Casalis, _op. cit._ p. 223 _sq._ For regard paid to
women, old people, and children in war, see also Richardson, _Arctic
Searching Expedition_, i. 367 (Western Eskimo); Catlin, _North
American Indians_, ii. 240; Azara, _Voyages_, ii. 145 (Payaguas).]
Sometimes custom even requires that the life of the captive shall be
spared.
It is against Masai tradition to kill prisoners of war.[69] Among
the Kabyles "il faut que l'exaspération des partis soit extrême pour
qu'un blessé ou un prisonnier soit mis à mort."[70] The Touareg do not
kill their prisoners after a fight.[71] Among the Bedouins of the
Euphrates "the person of the enemy is sacred when disarmed or
dismounted; and prisoners are neither enslaved nor held to other
ransom than their mares."[72] "Captives," says Mr. Dorsey, "were not
slain by the Omahas and Ponkas. When peace was declared the captives
were sent home, if they wished to go. If not they could remain where
they were, and were treated as if they were members of the tribe."[73]
Among the Wyandots prisoners of war were frequently adopted into the
tribe. "The warrior taking the prisoner has the first right to adopt
him. If no one claims the prisoner for this purpose, he is caused to
run the gauntlet as a test of his courage. If at his trial he behaves
manfully claimants are not wanting, but if he behaves disgracefully he
is put to death."[74]
[Footnote 69: Hinde, _op. cit._ p. 64.]
[Footnote 70: Hanoteau and Letourneux, _op. cit._ 75.]
[Footnote 71: Hourst, _op. cit._ p. 207.]
[Footnote 72: Blunt, _op. cit._ ii. 239.]
[Footnote 73: Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._
iii. 332.]
[Footnote 74: Powell, _ibid._ i. 68.]
Thus we notice even among uncivilised races very obvious traces of
what is called "international law,"[75] if not as a rule, at least as
an exception. On the other hand, the {337} readiness with which war is
engaged in, not only in self-defence or out of revenge, but for the
sake of gain, indicates how little regard is paid to human life
outside the tribe. The Kandhs, for instance, maintain "that a state of
war may be lawfully presumed against all tribes and nations with whom
no express agreement to the contrary exists."[76] And if a few savage
peoples live in perpetual peace, it seems that the chief reason for
this is not a higher standard of morality, but the absence of all
inducements to war.
[Footnote 75: See also Wheeler, _The Tribe, and Intertribal Relations
in Australia_, _passim_.]
[Footnote 76: Hunter, _Annals of Rural Bengal_, iii. 75.]
When we from the lower races pass to peoples more advanced in culture,
we find that the social unit has grown larger, that the nation has
taken the place of the tribe, and that the circle within which
homicide is prohibited as a crime of the first order has been extended
accordingly. But the old distinction between injuries committed
against compatriots and harm done to foreigners remains. Even when the
subject is not touched upon in the laws referring to homicide we may,
from the general attitude of the people towards members of other
nations, infer that public opinion is not very scrupulous as to the
taking of their lives. How the Chinese looked upon the "red-haired
barbarians," the "foreign devils," is well known from recent history.
In former days, Japan's attitude towards her neighbours and the whole
world was that of an enemy and not of a friend.[77] The Vedic hymns
are full of imprecations of misfortune upon men of another race.[78]
That among the ancient Teutons the lot of a stranger was not an
enviable one is testified even by language; the German word _elender_
has acquired its present meaning from the connotation of the older
word which meant an "outlandish" man.[79] The stranger as such--unless
he belonged to a friendly, neighbouring tribe--had originally no legal
rights at all; for his protection he was dependent on individual {338}
hospitality, and hospitality was restricted by custom to three days
only.[80] According to the Swedish Westgöta-Lag, he who killed a
foreigner had to pay no compensation to the dead man's relatives, nor
was he outlawed, nor exiled.[81] The Laws of King Ine let us
understand in what light a stranger was looked upon:--"If a far-coming
man, or a stranger, journey through a wood out of the highway, and
neither shout nor blow his horn, he is to be held for a thief, either
to be slain or redeemed."[82] However, as commerce increased and the
stranger was more often seen in Teutonic lands, royal protection was
extended to him; and a consequence of this was that thenceforth he who
killed the stranger had to pay a _wergeld_, part, or the whole, of
which went to the king.[83] In Greece, in early times, the
"contemptible stranger"[84] had no legal rights, and was protected
only in case he was the guest of a citizen;[85] and even later on, at
Athens, whilst the intentional killing of a citizen was punished with
death and confiscation of the murderer's property, the intentional
killing of a non-citizen was punished only with exile.[86] The Latin
word _hostis_ was originally used to denote a foreigner;[87] and the
saying of Plautus, that a man is a wolf to a man whom he does not
know,[88] was probably an echo of an old Roman proverb. Mommsen
suggests that in ancient days the Romans did not punish the killing of
a foreigner, unless he belonged to an allied nation; but already in
the prehistoric period a change was introduced, the foreigner being
placed under the protection of the State.[89]
[Footnote 77: Griffis, _Religions of Japan_, p. 129.]
[Footnote 78: Roth, 'On the Morality of the Veda,' in _Jour. American
Oriental Society_, iii. 338.]
[Footnote 79: _Cf._ Grimm, _Deutsche Rechtsalterthümer_, p. 396;
Gummere, _Germanic Origins_, p. 288.]
[Footnote 80: Grimm, _op. cit._ p. 397 _sqq._ Brunner, _Deutsche
Rechtgeschichte_, i. 273.]
[Footnote 81: _Westgöta-Lagen I._ Af mandrapi, v. 4 p. 13.]
[Footnote 82: _Laws of Ine_, 20. _Cf._ _Laws of Wihtræd_, 28.]
[Footnote 83: Brunner, _op. cit._ i. 273 _sq._ Gummere, _op. cit._ p.
288. Pollock and Maitland, _History of English Law before the Time of
Edward I._ i. 52.]
[Footnote 84: _Iliad_, ix. 648.]
[Footnote 85: Hermann-Blümner, _Lehrsbüch der griechischen
Privatalterthümer_, p. 492. Schmidt, _Ethik der alten Griechen_, ii. 325.]
[Footnote 86: Meier and Schömann, _Der altische Process_, p. 379.]
[Footnote 87: Cicero, _De officiis_, i. 12.]
[Footnote 88: Plautus, _Asinaria_, ii. 4. 88.]
[Footnote 89: Mommsen, _Römisches Strafrecht_, p. 622 _sqq._]
How little regard is felt for the lives of strangers also appears from
the readiness with which war is waged on {339} foreign nations,
combined with the estimation in which the successful warrior is held
by his countrymen. The ancient Mexicans were never at a loss for an
excuse to pick a quarrel with their neighbours, so as to be able to
procure victims for sacrifices to their gods.[90] "No profession was
held in more esteem amongst them than the profession of arms. The
deity of war was the most revered by them, and regarded as the chief
protector of the nation."[91] The Mayas not only wanted to increase
their dominions by encroachments upon their neighbours' territory, but
undertook raids with no other object than that of obtaining captives
for sacrifice.[92] Speaking of the wars of the ancient Egyptians, M.
Amélineau observes, "Nous n'avons pas un seul mot dans la littérature
égyptienne, même dans les [oe]uvres égypto-chrétiennes, qui nous fasse
entendre le plus léger cri de réprobation pour la guerre et ses
horreurs."[93] Among the Hebrews the most cruel wars of extermination
were expressly sanctioned by their religion. That an idolatrous people
had no right to live was taken as a matter of course; but wars were
also unscrupulously waged from worldly motives, and in their moral
code there is no attempt to distinguish between just and unjust
war.[94] Among the Mohammedans it is likewise the unbeliever, not the
foreigner as such, that is regarded as the most proper object of
slaughter. Although there is no precept in the Koran which, taken with
the context, justifies unprovoked war,[95] the saying that "Paradise
is under the shadow of swords"[96] is popularly applied to all warfare
against infidels. Among the Celts[97] and Teutons a man's highest
aspiration was to acquire military glory. The Scandinavians considered
it a disgrace for a man to die {340} without having seen human blood
flow;[98] even the slaying of a tribesman they often regarded lightly
when it had been done openly and bravely. In Greece, in ancient times
at least, war was the normal relation between different states, and
peace an exception, for which a special treaty was required;[99] while
to conquer and enslave barbarians was regarded as a right given to the
Greeks by Nature. The whole statecraft of the early Republic of Rome
was no doubt based upon similar principles;[100] and in later days,
also, the war policy of the Romans was certainly not conducted with
that conscientiousness which was insisted upon by some of their writers.
[Footnote 90: Bancroft, _Native Races of the Pacific States_, ii. 420.
Clavigero, _History of Mexico_, i. 371.]
[Footnote 91: Clavigero, _op. cit._ i. 363.]
[Footnote 92: Bancroft, _op. cit._ ii. 740, 745.]
[Footnote 93: Amélineau, _L'évolution des idées morales dans l'Égypte
ancienne_, p. 344.]
[Footnote 94: _Cf._ Seldeft, _De Synedriis et Præfecturis Juridicis
veterum Ebræorum_, iii. 12, p. 1179 _sqq._; Lament, _Études sur
l'histoire de l'humanité_, i. 384 _sq._]
[Footnote 95: This was later on admitted by Lane (_Modern Egyptians_,
p. 574), who had previously maintained that the duty of waging holy
war is strongly urged in the Koran.]
[Footnote 96: Pool, _Studies in Mohammedanism_, p. 246.]
[Footnote 97: Logan, _The Scottish Gael_, i. 101. de Valroger, _Les
Celtes_, p. 186.]
[Footnote 98: _Njála_, ch. 40, vol. i. 167. Maurer, _Rekehrung des
Norwegischen Stammes_, ii. 172.]
[Footnote 99: Schmidt, _Ethik der alten Griechen_, ii. 280. Laurent,
_op. cit._ i. 46. Plato, _Leges_, i. 625. Livy, xxxi. 29: "Cum
alienigenis, cum barbaris aeternum omnibus Graecis bellum est."]
[Footnote 100: _Cf._ Lecky, _History of European Morals_, ii. 257.]
However, the foreigner is not entirely, or under all circumstances,
devoid of rights. Among the nations of archaic civilisation, as among
the lower races, hospitality is a duty, and the life of a guest is as
sacred as the life of any of the permanent members of the household.
In various cases the commencement of international hostilities is
preceded by special ceremonies, intended to justify acts which are not
considered proper in times of peace. In ancient Mexico it was usual to
send a formal challenge or declaration of war to the enemy, as it was
held discreditable to attack a people unprepared for defence;[101]
and, according to the fecial law of the Romans, no war was just unless
it was undertaken to reclaim property, or unless it was solemnly
denounced and proclaimed beforehand.[102] In some cases warfare is
condemned, or a distinction is made between just and unjust war with
reference to the purpose for which the war is waged. The Chinese
philosophers were great advocates of peace.[103] According to
Lao-Tsze, a superior man uses weapons "only on the compulsion of
necessity";[104] there is no calamity greater {341} than lightly
engaging in war,[105] and "he who has killed multitudes of men should
weep for them with the bitterest grief."[106] In the Indian poem,
Mahabharata, needless warfare is condemned; it is said that the
success which is obtained by negotiations is the best, and that the
success which is secured by battle is the worst.[107] Among the
Hebrews the sect of the Essenes went so far in their reprobation of
war that they would not manufacture any martial instruments
whatever.[108] Roman historians, even in the case of wars with
barbarians, often discuss the sufficiency or insufficiency of the
motives "with a conscientious severity a modern historian could hardly
surpass."[109] According to Cicero, a war, to be just, ought to be
necessary, the sole object of war being to enable us to live
undisturbed in peace. There are two modes of settling controversies,
he says, one by discussion, the other by a resort to force. The first
is proper to man, the second is proper to brutes, and ought never to
be adopted except where the first is unavailable.[110] Seneca regards
war as a "glorious crime," comparable to murder:--"What is forbidden
in private life is commanded by public ordinance. Actions which,
committed by stealth, would meet with capital punishment, we praise
because committed by soldiers. Men, by nature the mildest species of
the animal race, are not ashamed to find delight in mutual slaughter,
to wage wars, and to transmit them to be waged by their children, when
even dumb animals and wild beasts live at peace with one
another."[111] History attests that the Romans, in their intercourse
with other nations, did not act upon Cicero's and Seneca's lofty
theories of international morality; as Plutarch observes, the two
names "peace" and "war" are mostly used only as coins, to procure, not
what is just, but what is expedient.[112] Yet there seems to have been
a general {342} feeling in Rome that the waging of a war required some
justification. In declaring it, the Roman heralds called all the gods
to witness that the people against whom it was declared had been
unjust and neglectful of its obligations.[113]
[Footnote 101: Clavigero, _op. cit._ i. 370. Bancroft, _op. cit._
ii. 420, 421, 423.]
[Footnote 102: Cicero, _De officiis_, i. 11.]
[Footnote 103: _Cf._ Lanessan, _Morale des philosophes chinois_,
pp. 54, 107.]
[Footnote 104: _Táo Teh King_, xxxi. 2.]
[Footnote 105: _Ibid._ lxix. 2.]
[Footnote 106: _Ibid._ xxxi. 3.]
[Footnote 107: _Mahabharata_, Bhisma Parva, iii. 81 (pt. xii. _sq._
p. 6).]
[Footnote 108: Philo, _Quod liber sit quisquis virtuti studet_, p. 877.]
[Footnote 109: Lecky, _History of European Morals_, ii. 258.]
[Footnote 110: Cicero, _De officiis_, i. 11.]
[Footnote 111: Seneca, _Epistulæ_, 95.]
[Footnote 112: Plutarch, _Vita Pyrrhi_, xii. 3, p. 389.]
[Footnote 113: Livy, i. 32.]
Even in war the killing of an enemy is, under certain circumstances,
prohibited either by custom or by enlightened moral opinion. Among the
ancient Nahuas, who never accepted a ransom for a prisoner of war, the
person of an ambassador was at all events held sacred.[114] In the
'Book of Rewards and Punishments,' which embodies popular Taouism, it
is said, "Do not massacre the enemies who yield themselves, nor kill
those who offer their submission."[115] The Hebrews, whilst being
commanded to "save alive nothing that breatheth" of the cities which
the Lord had given them for an inheritance, were to deal differently
with cities which were very far off from them: to kill only the men,
and to take to themselves the women and the little ones.[116] The Laws
of Manu lay down very humane rules for a king who fights with his foes
in battle:--"Let him not strike with weapons concealed in wood, nor
with such as are barbed, poisoned, or the points of which are blazing
with fire. Let him not strike one who in flight has climbed on an
eminence, nor a eunuch, nor one who joins the palms of his hands in
supplication, nor one who flees with flying hair, nor one who sits
down, nor one who says 'I am thine'; nor one who sleeps, nor one who
has lost his coat of mail, nor one who is naked, nor one who is
disarmed, nor one who looks on without taking part in the fight, nor
one who is fighting with another foe; nor one whose weapons are
broken, nor one afflicted with sorrow, nor one who has been grievously
wounded, nor one who is in fear, nor one who has turned to flight; but
in all these cases let him remember the duty of honourable
warriors."[117] The Mahabharata contains expressions of {343} similar
chivalrous sentiments in regard to enemies. A car-warrior should fight
only with a car-warrior, a horse-man with a horse-man, a foot-soldier
with a foot-soldier. "Always being led by consideration of fitness,
willingness, bravery, and strength, one should strike another after
having challenged him. None should strike another who is confiding or
who is panic-striken. One fighting with another, one seeking refuge,
one retreating, one whose weapon is broken, and one who is not clad in
armour should never be struck. Charioteers, animals, men engaged in
carrying weapons, those who play on drums and those who blow conchs
should never be smitten."[118] Among the Greeks, in the Homeric age,
it was evidently regarded as a matter of course that, on the fall of a
city, all the men were slain, and the women and children carried off
as slaves;[119] but in historic times such a treatment of a vanquished
foe grew rarer, and seems, under ordinary circumstances, to have been
disapproved of.[120] The rulers of this land, says the messenger in
the 'Heraclidæ,' do not approve of slaying enemies who have been taken
alive in battle.[121] In Rome the customs of war underwent a similar
change. In ancient days the normal fate of a captive was death, in
later times he was generally reduced to slavery; but many thousands of
captives were condemned to the gladiatorial shows, and the vanquished
general was commonly slain in the Mamertine prison.[122] On the other
hand, nations or armies that voluntarily submitted to Rome were
habitually treated with great leniency. Cicero says:--"When we obtain
the victory we must preserve those enemies who behaved without cruelty
or inhumanity during the war; for example, our forefathers received,
even as members of their state, the Tuscans, the Aequi, the Volscians,
the Sabines, and the Hernici, but utterly destroyed Carthage and
Numantia. . . . And, while we {344} are bound to exercise
consideration toward those whom we have conquered by force, so those
should be received into our protection who throw themselves upon the
honour of our general, and lay down their arms, even though the
battering rams should have struck their walls."[123]
[Footnote 114: Bancroft, _op. cit._ ii. 426, 412.]
[Footnote 115: Douglas, _Confucianism and Taouism_, p. 261.]
[Footnote 116: _Deuteronomy_, xx. 13 _sqq._]
[Footnote 117: _Laws of Manu_, vii. 90 _sq._]
[Footnote 118: _Mahabharata_, Bhisma Parva, i. 27 _sqq._ (pt. xii.
_sq._ p. 2).]
[Footnote 119: _Iliad_, ix. 593 _sq._]
[Footnote 120: Schmidt, _Ethik der alten Griechen_, ii. 281 _sqq._]
[Footnote 121: Euripides, _Heraclidæ_, 966.]
[Footnote 122: Laurent, _op. cit._ iii. 20 _sq._ Lecky, _History of
European Morals_, ii. 257.]
[Footnote 123: Cicero, _De officiis_, i. 11.]
CHAPTER 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._]
CHAPTER 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.]
CHAPTER 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.
CHAPTER XIX
HUMAN SACRIFICE
IT still remains for us to consider some particular cases in which
destruction of human life is sanctioned by custom or law.
Men are killed with a view to gratifying the desires of superhuman
beings. We meet with human sacrifice in the past history of every
so-called Aryan race.[1] It occurred, at least occasionally, in
ancient India, and several of the modern Hindu sects practised it even
in the last century.[2] There are numerous indications that it was
known among the early Greeks.[3] At certain times it prevailed in the
Hellenic cult of Zeus;[4] indeed, in the second century after Christ
men seem still to have been sacrificed to Zeus Lycæus in Arcadia.[5]
To the historic age likewise belongs the sacrifice of the three
Persian prisoners of war whom Themistocles was compelled to slay
before the battle of Salamis.[6] In Rome, also, human sacrifices,
though {435} exceptional, were not unknown in historic times.[7] Pliny
records that in the year 97 B.C. a decree forbidding such sacrifices
was passed by the Roman Senate,[8] and afterwards the Emperor Hadrian
found it necessary to renew this prohibition.[9] Porphyry asks, "Who
does not know that to this day, in the great city of Rome, at the
festival of Jupiter Latiaris, they cut the throat of a man?"[10] And
Tertullian states that in North Africa, even to the proconsulship of
Tiberius, infants were publicly sacrificed to Saturn.[11] Human
sacrifices were offered by Celts,[12] Teutons,[13] and Slavs;[14] by
the ancient Semites[15] and Egyptians;[16] by the Japanese in early
days;[17] and, in the New World, by the Mayas[18] and, to a frightful
extent, by the Aztecs. "Scarcely any author," says Prescott in his
'History of the Conquest of Mexico,' "pretends to estimate the yearly
sacrifices throughout the empire at less than twenty thousand, and
some carry the number as high as fifty thousand."[19] The same
practice is imputed by Spanish writers to the Incas of Peru, and
probably not without good reason.[20] Before their rule, at all
events, it {436} was of frequent occurrence among the Peruvian
Indians.[21] It also prevailed, or still prevails, among the
Caribs[22] and some North American tribes;[23] in various South Sea
islands, especially Tahiti and Fiji;[24] among certain tribes in the
Malay Archipelago;[25] among several of the aboriginal tribes of
India;[26] and very commonly in Africa.[27]
[Footnote 1: See Hehn, _Wanderings of Plants and Animals from their
First Home_, p. 414 _sqq._]
[Footnote 2: Weber, _Indische Streifen_, i. 54 _sqq._ Wilson, 'Human
Sacrifices in the Ancient Religion of India,' in _Works_, ii. 247
_sqq._ Oldenberg, _Religion des Veda_, p. 363 _sqq._ Barth, _Religions
of India_, p. 57 _sqq._ Monier Williams, _Br[=a]hmanism and
Hind[=u]ism_, p. 24. Hopkins, _Religions of India_, pp. 198, 363.
Rájendralála Mitra, _Indo-Aryans_, ii. 69 _sqq._ Crooke, _Popular
Religion and Folk-Lore of Northern India_, ii. 167 _sqq._ Chevers,
_Manual of Medical Jurisprudence for India_, p. 396 _sqq._]
[Footnote 3: See Geusius, _Victimæ Humanæ_, _passim_; von Lasaulx,
_Sühnofper der Griechen und Römer_, _passim_; Farnell, _Cults, of the
Greek States_, i. 41 _sq._; Stengel, _Die griechischen Kultusaltertümer_,
p. 114 _sqq._]
[Footnote 4: _Cf._ Farnell, _op. cit._ i. 93; Stengel, _op. cit._
p. 116.]
[Footnote 5: Pausanias, viii. 38. 7.]
[Footnote 6: Plutarch, _Themistocles_, 13.]
[Footnote 7: _Idem_, _Questiones Romanæ_, 83. See Landau, in _Am
Ur-Quell_, iii. 1892, p. 283 _sqq._]
[Footnote 8: Pliny, _Historia naturalis_, xxx. 3.]
[Footnote 9: Porphyry, _De abstinentia ab esu animalium_, ii. 56.]
[Footnote 10: _Ibid._ ii. 56.]
[Footnote 11: Tertullian, _Apologeticus_, 9 (Migne, _Patrologiæ
cursus_, i. 314).]
[Footnote 12: Cæsar, _De bello gallico_, vi. 16. Tacitus, _Annales_,
xiv. 30. Diodorus Siculus, _Bibliotheca_, v. 31, p. 354. Pliny,
_Historia naturalis_, xxx. 4. Strabo, iv. 5, p. 198. Joyce, _Social
History of Ancient Ireland_, i. 281 _sqq._]
[Footnote 13: Tacitus, _Germania_, 9. Adam of Bremen, _Gesta
Hammaburgensis ecclesiæ pontificum_, iv. 27 (Migne, _op. cit._ cxlvi.
644). Grimm, _Teutonic Mythology_, i. 44 _sqq._ Vigfusson and Powell,
_Corpus Poeticum Boreale_, i. 409 _sq._ Freytag, 'Riesen und
Menschenopfer in unsern Sagen und Märchen,' in _Am Ur-Quell_, i. 1890,
pp. 179-183, 197 _sqq._]
[Footnote 14: Mone, _Geschichte des nordischen Heidenthums_, i. 119,
quoted by Frazer, _Golden Bough_, ii. 52. Krauss, in _Am Ur-Quell_,
vi. 1896, p. 137 _sqq._ (Servians).]
[Footnote 15: Ghillany, _Die Menschenopfer der alten Hebräer_,
_passim_. Robertson Smith, _Religion of the Semites_, p. 362 _sqq._
Wellhausen, _Reste arabischen Heidentums_, p. 115 _sq._ von Kremer,
_Studien zur vergleichenden Culturgeschichte_, i. 42 _sqq._ Chwolsohn,
_Die Ssabier und der Ssabismus_, ii. 147 _sqq._]
[Footnote 16: Amélineau, _L'évolution des idées morales dans l'Égypte
Ancienne_, p. 12.]
[Footnote 17: Griffis, _Religions of Japan_, p. 75. Lippert,
_Seelencult_, p. 79.]
[Footnote 18: Bancroft, _Native Races of the Pacific States_,
ii. 704, 725.]
[Footnote 19: Prescott, _History of the Conquest of Mexico_, p. 38.
_Cf._ Clavigero, _History of Mexico_, i. 281; Acosta, _Natural and
Moral History of the Indies_, ii. 346.]
[Footnote 20: Acosta, _op. cit._ ii. 344. de Molina, 'Fables and Rites
of the Yncas,' in _Narratives of the Rites and Laws of the Yncas_, pp.
55, 56, 59. According to Cieza de Leon (_Segunda parte de la Crónica
del Perú_, p. 100), the practice of human sacrifice has been much
exaggerated by Spanish writers, but he does not deny its existence
among the Incas; nay, he gives an account of such sacrifices (_ibid._
p. 109 _sqq._). Sir Clements Markham seems to attach undue importance
to the statement of Garcilasso de la Vega that human victims were
never sacrificed by the Incas (_First Part of the Royal Commentaries
of the Yncas_, i. 130, 131, 139 _sqq._ n. [dagger]). _Cf._ Prescott,
_History of the Conquest of Peru_, p. 50 _sq._ n. 3.]
[Footnote 21: Garcilasso de la Vega, _op. cit._ i. 50, 130.]
[Footnote 22: Müller, _Geschichte der Amerikanischen Urreligionen_,
p. 212 _sq._]
[Footnote 23: _Ibid._ p. 142. _sqq._ Réville, _Religions des peuples
non-civilisés_, i. 249 _sq._ Dorman, _Origin of Primitive
Superstitions_, p. 208 _sqq._]
[Footnote 24: Schneider, _Naturvölker_, i. 191 _sq._ Fornander,
_Account of the Polynesian Race_, i. 129. Ellis, _Polynesian
Researches_, i. 106, 346-348, 357 (Society Islanders). Williams,
_Missionary Enterprises in the South Sea Islands_, p. 548 _sq._
(especially the Hervey Islanders and Tahitians). von Kotzebue, _Voyage
of Discovery_, iii. 248 (Sandwich Islanders). Lisiansky, _Voyage round
the World_, pp. 81 _sq._ (Nukahivans), 120 (Sandwich Islanders). Gill,
_Myths and Songs from the South Pacific_, p. 289 _sqq._ (Mangaians).
Williams and Calvert, _Fiji_, pp. 188, 195; Wilkes, _Narrative of the
U.S. Exploring Expedition_, iii. 97; Hale, _U.S. Exploring Expedition,
Vol. VI. Ethnography and Philology_, p. 57 (Fijians). Codrington,
_Melanesians_, p. 134 _sqq._]
[Footnote 25: Ling Roth, _Natives of Sarawak and British North
Borneo_, ii. 215 _sqq._ Bock, _Head-Hunters of Borneo_, p. 218 _sq._
(Dyaks).]
[Footnote 26: Woodthorpe, in _Jour. Anthr. Inst._ xxvi. 24 (Shans,
&c.). Colquhoun, _Amongst the Shans_, p. 152 (Steins inhabiting the
south-east of Indo-China). Lewin, _Wild Races of South-Eastern India_,
p. 244 (Pankhos and Bunjogees). Godwin-Austen, in _Jour. Anthr. Inst._
ii. 394 (Garo hill tribes). Dalton, _Descriptive Ethnology of Bengal_,
pp. 147 (Bhúiyas), 176 (Bhúmij), 281 (Gonds), 285 _sqq._ (Kandhs).
Hislop, _Aboriginal Tribes of the Central Provinces_, p. 15 _sq._
(Gonds). Macpherson, _Memorials of Service in India_, p. 113 _sq._
Campbell, _Wild Tribes of Khondistan_, _passim_ (Kandhs).]
[Footnote 27: Schneider, _Religion der afrikanischen Naturvölker_, p.
118. Reade, _Savage Africa_, p. 52 (Dahomans, &c.). Ling Roth, _Great
Benin_, p. 63 _sqq._ Ellis, _E[(w]e-speaking Peoples of the Slave
Coast_, p. 117 _sqq._ _Idem_, _Yoruba-speaking Peoples of the Slave
Coast_, p. 296. _Idem_, _Tshi-speaking Peoples of the Gold Coast_, p.
169 _sqq._ Cruickshank, _Eighteen Years on the Gold Coast_, ii. 173.
Schoen and Crowther, _Expedition up the Niger_, p. 48 _sq._ (Ibos).
Arnot _Garenganze_, p. 75 (Barotse). Arbousset and Daumas,
_Exploratory Tour to the North-East of the Colony of the Cape of Good
Hope_, p. 97 (Marimos, a Bechuana tribe). Macdonald, _Africana_, i. 96
_sq._ (Eastern Central Africans). Ellis, _History of Madagascar_, i.
422; Sibree, _The Great African Island_, p. 303 (Malagasy).]
From this enumeration it appears that the practice of human sacrifice
cannot be regarded as a characteristic of savage races. On the
contrary, it is found much more {437} frequently among barbarians and
semi-civilised peoples than among genuine savages, and at the lowest
stages of culture known to us it is hardly heard of. Among some
peoples the practice has been noticed to become increasingly prevalent
in the course of time. In the Society Islands "human sacrifices, we
are informed by the natives, are comparatively of modern institution:
they were not admitted until a few generations antecedent to the
discovery of the islands**";[28] and in ancient legends there seems to
be certain indications that they were once prohibited in
Polynesia.[29] In India human sacrifices were apparently much rarer
among the Vedic people than among the Brahmanists of a later age.[30]
We are told that such sacrifices were adopted by the Aztecs only in
the beginning of the fourteenth century, about two hundred years
before the conquest, and that, "rare at first, they became more
frequent with the wider extent of their empire; till, at length,
almost every festival was closed with this cruel abomination."[31] Of
the Africans Mr. Winwood Reade remarks, "The more powerful the nation
the grander the sacrifice."[32]
[Footnote 28: Ellis, _Polynesian Researches_, i. 106.]
[Footnote 29: Fornander, _op. cit._ i. 129.]
[Footnote 30: Wilson, _Works_, ii. 268 _sq._]
[Footnote 31: Prescott, _History of the Conquest of Mexico_, p. 36.]
[Footnote 32: Reade, _Savage Africa_, p. 52.]
Men offer up human victims to their gods because they think that the
gods are gratified by such offerings. In many cases the gods are
supposed to have an appetite for human flesh or blood.[33] The Fijian
gods are described as "delighting in human flesh."[34] Among the
Ooryahs of India the priest, when offering a human sacrifice to the
war-god Manicksoro, said to the god, "The sacrifice we now offer you
must eat."[35] Among the Iroquois, when an enemy was tortured at the
stake, the savage executioners leaped around him crying, "To thee,
Arieskoi, great spirit, we slay this victim, that thou mayest eat his
flesh and be moved thereby to give us henceforth luck and {438}
victory over our foes."[36] Among the ancient nations of Central
America the blood and heart of the human victims offered in sacrifice
were counted the peculiar portion of the gods.[37] Thus, in Mexico,
the high-priest, after cutting open the victim's breast, tore forth
the yet palpitating heart, offered it first to the sun, threw it then
at the feet of the idol, and finally burned it; sometimes the heart
was placed in the mouth of the idol with a golden spoon, and its lips
were anointed with the victim's blood.[38]
[Footnote 33: See Lippert, _Seelencult_, p. 77 _sqq._; Schneider,
_Naturvölker_, i. 190.]
[Footnote 34: Williams and Calvert, _op. cit._ p. 195.]
[Footnote 35: Campbell, _Wild Tribes of Khondistan_, p. 211. _Cf._
Macpherson, _Memorials of Service in India_, p. 120 (Kandhs).]
[Footnote 36: Müller, _Geschichte der Amerikanischen Urreligionen_,
p. 142.]
[Footnote 37: Bancroft, _op. cit._ ii. 307, 310, 311, 707 _sqq._]
[Footnote 38: Clavigero, _op. cit._ i. 279.]
But the human victim is not always, as has been erroneously
supposed,[39] intended to serve the god as a food-offering. The
Tshi-speaking peoples of the Gold Coast, as Major Ellis observes,
maintain that their gods require not only food, but attendants; "the
ghosts of the human victims sacrificed to them are believed to pass at
once into a condition of ghostly servitude to them, just as those
sacrificed at the funerals of chiefs are believed to pass into a
ghostly attendance."[40] Cieza de Leon mentions the prevalence of a
similar belief among the ancient Peruvians. At the hill of Guanacaure,
"on certain days they sacrificed men and women, to whom, before they
were put to death, the priest addressed a discourse, explaining to
them that they were going to serve that god who was being
worshipped."[41]
[Footnote 39: Réville, _Hibbert Lectures on the Native Religions of
Mexico and Peru_, p. 75 _sq._ _Idem_, _Prolegomena of the History of
Religions_, p. 132. Trumbull, _Blood Covenant_, p. 189. Steinmetz,
_Endokannibalismus_, p. 60, n. 1. Schrader, _Reallexikon der
indogermanischen Altertumskunde_, p. 603.]
[Footnote 40: Ellis, _Tshi-speaking Peoples of the Gold Coast_, p. 169.]
[Footnote 41: Cieza de Leon, _Segunda parte de Crónica del Perú_,
p. 109.]
Moreover, an angry god may be appeased simply by the death of him or
those who aroused his anger, or of some representative of the
offending community, or of somebody belonging to the kin of the
offender. Among the E[(w]e-speaking peoples of the Slave Coast, "in
the case of human victims the gods are not believed to devour the
{439} souls; and as these souls are, by the majority of the natives,
believed to proceed to Dead-land like all others, the object of human
sacrifice seems to be to gratify or satiate the malignancy of the gods
at the expense of chosen individuals, instead of leaving it to
chance--the victims are in fact slain for the benefit of the community
at large."[42] One reason why the human victims are so frequently
criminals, is no doubt the intention of appeasing the god by offering
up to him an individual who is hateful to him. The Sandwich Islanders
"sacrifice culprits to their gods, as we sacrifice them in Europe to
justice."[43] Among the Teutons the execution of a criminal was, in
many cases at least, a sacrifice to the god whose peculiar cult had
been offended by the crime.[44] Thus the Frisian law describes as an
immolation to the god the punishment of one who violates his
temple.[45] In ancient Rome the corn thief, if he was an adult, was
hanged as an offering to Ceres;[46] and Ovid tells us that a priestess
of Vesta who had been false to her vows of chastity was sacrificed by
being buried alive in the earth, Vesta and Tellus being the same
deity.[47] In consequence of the sacrilege of Menalippus and Comætho,
who had polluted a temple of Artemis by their amours, the Pythian
priestess ordained that the guilty pair should be sacrificed to the
goddess, and that, besides, the people should every year sacrifice to
her a youth and a maiden, the fairest of their sex.[48] The Hebrew
_cherem_, or ban, was originally applied to malefactors and other
enemies of Yahveh, and sometimes also to their possessions.
"_Cherem_," says Professor Kuenen, "is properly dedication to Yahveh,
which in reality amounted to destruction or annihilation. The persons
who were {440} 'dedicated,' generally by a solemn vow, to Yahveh, were
put to death, frequently by fire, whereby the resemblance to an
ordinary burnt-offering was rendered still more apparent; their
dwellings and property were also consumed by fire; their lands were
left uncultivated for ever. Such punishments were very common in the
ancient world. But in Israel, as elsewhere, they were at the same time
religious acts."[49] The sacrifice of offenders has, in fact, survived
in the Christian world, since every execution performed for the
purpose of appeasing an offended and angry god may be justly called a
sacrifice.[50]
[Footnote 42: Ellis, _E[(w]e-speaking Peoples of the Slave Coast_,
p. 119.]
[Footnote 43: von Kotzebue, _op. cit._ iii. 248. _Cf._ Lisiansky, _op.
cit._ 120.]
[Footnote 44: von Amira, in Paul's _Grundriss der germanischen
Philologie_, ii. pt. ii. 177. Brunner, _Deutsche Rechtsgeschichte_,
ii. 587, 684 _sq._ Vigtusson and Powell, _op. cit._ i. 410. Gummere,
_Germanic Origins_, p. 463.]
[Footnote 45: _Lex Frisionum_, Additio sapientium, 12.]
[Footnote 46: Granger, _Worship of the Romans_, p. 260.]
[Footnote 47: Ovid, _Fasti_, vi. 457 _sq._ _Cf._ Mommsen, _Römisches
Strafrecht_, p. 902.]
[Footnote 48: Pausanias, vii. 19. 4.]
[Footnote 49: Kuenen, _Religion of Israel_, i. 290 _sq._]
[Footnote 50: See _supra_, p. 197 _sq._ For various instances of
expiatory human sacrifice, involving vicarious atonement, see _supra_,
p. 66 _sq._]
It is impossible to discover in every special case in what respect the
worshippers believe the offering of a fellow-creature to be gratifying
to the deity. Probably they have not always definite views on the
subject themselves. They know, or believe, that on some certain
occasion, they are in danger of losing their lives; they attribute
this to the designs of a supernatural being; and, by sacrificing a
man, they hope to gratify that being's craving for human life, and
thereby avert the danger from themselves. That this principle mainly
underlies the practice of human sacrifice appears from the
circumstances in which such sacrifices generally occur.
Human victims are often offered in war, before a battle, or during a
siege.
Cæsar wrote of the Gauls, "They who are engaged in battles and
dangers, either sacrifice men as victims, or vow that they will
sacrifice them . . . ; because they think that unless the life of a
man be offered for the life of a man, the mind of the immortal gods
cannot be rendered propitious."[51] The Lusitanians sacrificed a man
and a horse at the commencement of a military enterprise.[52] Before
going to war, or before the beginning of a battle, or during a siege,
the Greeks offered a human victim to ensure victory.[53] When
hard-pressed in battle, {441} the King of Moab sacrificed his eldest
son as a burnt offering on the wall.[54] In times of great calamities,
such as war, the Phenicians sacrificed some of their dearest friends,
who were selected by votes for this purpose.[55] During a battle with
king Gelo of Syracuse, the general Hamilcar sacrificed innumerable
human victims, from dawn to sunset;[56] and when Carthage was reduced
to the last extremities, the noble families were compelled to give up
two hundred of their sons to be offered to Baal.[57] In Hindu
scriptures and traditions success in war is promised to him who offers
a man in sacrifice.[58] In Jeypore "the blood-red god of battle" is
propitiated by human victims. "Thus, on the eve of a battle, or when a
new fort, or even an important village is to be built, or when danger
of any kind is to be averted, this sanguinary being must be
propitiated with human blood."[59] In Great Benin human blood was shed
in a case of common danger when an enemy was at the gate of the
city.[60] The Yorubas sacrifice men in times of national need.[61]
Among the E[(w]e-speaking peoples of the Slave Coast, such sacrifices
"are ordinarily only made in time of war, pestilence, or great
calamity."[62] The Tahitians offered human sacrifices in seasons of
war, or when war was in agitation.[63]
[Footnote 51: Cæsar, _De bello gallico_, vi. 16.]
[Footnote 52: Livy, _Epitome_, 49.]
[Footnote 53: Pausanias, iv. 9. 4 _sqq._; ix. 17. 1. Plutarch,
_Themistocles_, 13. _Idem_, _Aristides_, 9. _Idem_, _Pelopidas_, 21
_sq._ Lycurgus, _Oratio in Leocratem_, (ch. 24) 99. Apollodorus,
_Bibliotheca_, iii. 15. 4. Porphyry, _De abstinentia ab esu
animalium_, ii. 56. Geusius, _op. cit._ i. ch. 16 _sq._ Stengel, _op.
cit._ p. 115 _sq._]
[Footnote 54: _2 Kings_, iii. 27.]
[Footnote 55: Porphyry, _op. cit._ ii. 56.]
[Footnote 56: Herodotus, vii. 167.]
[Footnote 57: Diodorus Siculus, xx. 14.]
[Footnote 58: Chevers, _op. cit._ p. 399.]
[Footnote 59: Campbell, _Wild Tribes of Khondistan_, p. 52.]
[Footnote 60: Ling Roth, _Great Benin_, p. 72.]
[Footnote 61: Ellis, _Yoruba-speaking People of the Slave Coast_,
p. 296.]
[Footnote 62: _Idem_, _E[(w]e-speaking Peoples of the Slave Coast_, p.
117.]
[Footnote 63: Ellis, _Polynesian Researches_, i. 276 _sqq._, 346.]
After a victory, captured enemies are sacrificed to the god to
whose assistance the success is ascribed. This sacrifice has been
represented as a thank-offering;[64] but, in many cases at least, it
seems to be offered either to fulfil a vow previously made, or to
induce the god to continue his favours for the future.[65] Among the
Kayans of Borneo it is the custom that, when captives are brought to
an enemy's country, "one should suffer death, to bring prosperity and
abolish the curse of the enemy in their lands."[66]
[Footnote 64: Diodorus Siculus, xx. 65 (Carthaginians). de Molina,
_loc. cit._ p. 59 (Incas); &c.]
[Footnote 65: Ellis, _Tshi-speaking Peoples_, p. 170. Cruickshank,
_op. cit._ ii. 173. Dubois, _Character, Manners, and Customs of the
People of India_, p. 488. Jordanes, _De origine actibusque Getarum_, 5
(41). _Cf._ Jephthah's vow (_Judges_, xi. 30 _sqq._).]
[Footnote 66: Brook, _Ten Years in Saráwak_, ii. 304 _sq._]
Human sacrifices are offered for the purpose of stopping or preventing
epidemics.
{442} The Phenicians sacrificed "some of their dearest friends," not
only in war, but in times of pestilence.[67] In similar circumstances
the ancient Greeks had recourse to human sacrifices.[68] In seasons of
great peril, as when a pestilence was raging, the ancient Italians
made a vow that they would sacrifice every living being that should be
born in the following spring.[69] In West Gothland, in Sweden, the
people decreed a human sacrifice to stay the _digerdöd_, or Plague,
hence two beggar children, having just then come in, were buried
alive.[70] In Fur, in Denmark, there is a tradition that, for the same
purpose, a child was interred alive in the burial ground.[71] Among
the Chukchi, in 1814, when a sudden and violent disease had broken out
and carried off both men and reindeer, the Shamans, after having had
recourse in vain to their usual conjurations, determined that one of
the most respected chiefs must be sacrificed to appease the irritated
spirits.[72] In Great Benin, "when the doctors declared a man had died
owing to Ogiwo, if they think an epidemic imminent, they can tell
Overami [the king] that Ogiwo vex. Then he can take a man and a woman,
all the town can fire guns and beat drums. The man and woman are
brought out, and the head Jujuman can make this prayer: 'Oh, Ogiwo,
you are very big man; don't let any sickness come for Ado. Make all
farm good, and every woman born man son.'"[73] In the same country
twelve men, besides various animals, were offered yearly on the
anniversary of the death of Adolo, king Overami's father. King
Overami, calling his father loudly by name, spoke as follows: "Oh,
Adolo, our father, look after all Ado [that is, Great Benin], don't
let any sickness come to us, look after me and my people, our slaves,
cows, goats, and fowls, and everything in the farms."[74]
[Footnote 67: Porphyry, _op. cit._ ii. 56.]
[Footnote 68: Geusius, _op. cit._ i. ch. 13. Stengel, _op. cit._ p.
116. Frazer, _Golden Bough_, iii. 125 _sq._]
[Footnote 69: Festus, _De verborum significatione_, 'Ver sacrum,'
Müller's edition, p. 379. Nonius Marcellus, _De proprietate sermonis_,
'Versacrum,' p. 522. Servius, _In Virgilii Æneidos_, vii. 796.]
[Footnote 70: Afzelius, _Swenska Folkets Sago-Häfder_, iv. 181.]
[Footnote 71: Nyrop, _Romanske Mosaiker_, p. 69, n. 1.]
[Footnote 72: von Wrangell, _Expedition to the Polar Sea_, p. 122 _sq._]
[Footnote 73: Moor and Roupell, quoted by Read and Dalton,
_Antiquities from the City of Benin_, p. 7; also by Ling Roth, _Great
Benin_, p. 71 _sq._]
[Footnote 74: Moor and Roupell, quoted by Ling Roth, _op. cit._ p. 70
_sq._; also by Read and Dalton, _op. cit._ p. 6.]
The sacrifice of human victims is resorted to as a method of putting
an end to a devastating famine.
{443} Instances of this practice are reported to have occurred among
the ancient Greeks[75] and Phenicians.[76] In a grievous famine, after
other great sacrifices, of oxen and of men, had proved unavailing, the
Swedes offered up their own king Dómaldi.[77] Chinese annals tell us
that there was a great drought and famine for seven years after the
accession of T'ang, the noble and pious man who had overthrown the
dynasty of Shang. It was then suggested at last by some one that a
human victim should be offered in sacrifice to Heaven, and prayer be
made for rain, to which T'ang replied, "If a man must be the victim I
will be he."[78] Up to quite recent times, the priests of Lower Bengal
have, in seasons of scarcity, offered up children to Siva; in the
years 1865 and 1866, for instance, recourse was had to such sacrifices
in order to avert famine.[79]
[Footnote 75: Pausanias, vii. 19. 3 _sq._ Diodorus Siculus, iv. 61. 1
_sqq._ Geusius, _op. cit._ i. ch. 14.]
[Footnote 76: Porphyry, _op. cit._ ii. 56.]
[Footnote 77: Snorri Sturluson, 'Ynglingasaga,' 15, in _Heimskringla_,
i. 30.]
[Footnote 78: Legge, _Religions of China_, p. 54.]
[Footnote 79: Hunter, _Annals of Rural Bengal_, i. 128.]
For people subsisting on agriculture a failure of crops means
starvation and death,[80] and is, consequently, attributed to the
murderous designs of a superhuman being, such as the earth spirit, the
morning star, the sun, or the rain-god. By sacrificing to that being a
man, they hope to appease its thirst for human blood; and whilst some
resort to such a sacrifice only in case of actual famine, others try
to prevent famine by making the offering in advance. This I take to be
the true explanation of the custom of securing good crops by means of
human sacrifice, of which many instances have been produced by Dr.
Frazer.[81] There are obvious links between this custom and that of
the actual famine-sacrifice. Thus the ancient Peruvians sacrificed
children after harvest, when they prepared to make ready the land for
the next year, not every year, however, but "only when the weather was
not good, and seasonable."[82] In Great Benin, "if there is too much
{444} rain, then all the people would come from farm and beg Overami
[the king] to make juju, and sacrifice to stop the rain. Accordingly a
woman was taken, a prayer made over her, and a message saluting the
rain god put in her mouth, then she was clubbed to death and put up in
the execution tree so that the rain might see. . . . In the same way
if there is too much sun so that there is a danger of the crops
spoiling, Overami can sacrifice to the Sun God."[83] The principle of
substitution admits of a considerable latitude in regard to the stage
of danger at which the offering is made; the danger may be more
imminent, or it may be more remote. This holds good of various kinds
of human sacrifice, not only of such sacrifices as are intended to
influence the crops. I am unable to subscribe to the hypothesis
cautiously set forth by Dr. Frazer, that the human victim who is
killed for the purpose of ensuring good crops is regarded as a
representative of the corn-spirit and is slain as such. So far as I
can see, Dr. Frazer has adduced no satisfactory evidence in support of
his supposition; whereas a detailed examination of various cases
mentioned by him in connection with it indicates that they are closely
related to human sacrifices offered on other occasions, and explicable
from the same principle, that of substitution.
[Footnote 80: _Cf._ Sleeman, _Rambles and Recollections_, i. 204
_sqq._:--"In India, unfavourable seasons produce much more disastrous
consequences than in Europe. . . . More than three-fourths of the
whole population are engaged in the cultivation of the land, and
depend upon its annual returns for subsistence. . . . Tens of
thousands die here of starvation, under calamities of season, which in
Europe would involve little of suffering to any class."]
[Footnote 81: Frazer, _Golden Bough_, ii. 238 _sqq._]
[Footnote 82: Herrera, _op. cit._ ii. 111.]
[Footnote 83: Moor and Roupell, quoted by Read and Dalton, _op. cit._
p. 7; also by Ling Roth, _Great Benin_, p. 71.]
"The best known case of human sacrifices, systematically offered to
ensure good crops," says Dr. Frazer, "is supplied by the Khonds or
Kandhs." The victims, or Meriahs, are represented by our
authorities[84] as being offered to propitiate the Earth goddess, Tari
Pennu or Bera Pennu, but from their treatment both before and after
death it appears to Dr. Frazer that the custom cannot be explained as
merely a propitiatory sacrifice. The flesh and the ashes of the
Meriah, he observes, were believed to possess a magic power of
fertilising the land, quite independent of the indirect efficacy which
they might have as an offering to secure the goodwill of the deity.
For, though a part of the flesh was offered to the Earth Goddess, the
rest of it {445} was buried by each householder in his fields, and the
ashes of the other parts of the body were scattered over the fields,
laid as paste on the granaries, or mixed with the new corn. The same
intrinsic power was ascribed to the blood and tears of the Meriah, his
blood causing the redness of the turmeric and his tears producing
rain; and magic power as an attribute of the victim appears, also in
the sovereign virtue believed to reside in anything that came from his
person, as his hair or spittle. Considering further that, according to
our authorities, the Meriah was regarded as "something more than
mortal," or that "a species of reverence, which it is not easy to
distinguish from adoration, is paid to him," Dr. Frazer concludes that
he may originally have represented the Earth deity or perhaps a deity
of vegetation, and that he only in later times came to be regarded
rather as a victim offered to a deity than as himself an incarnate
deity.[85]
[Footnote 84: Campbell, _Wild Tribes of Khondistan_. Macpherson,
_Memorials of Service in India_.]
[Footnote 85: Frazer, _op. cit._ ii. 245 _sq._]
The premise on which Dr. Frazer bases his argument appears to me
quite untenable. It is an arbitrary supposition that the ascription of
a magical power to the Meriah "indicates that he was much more than a
mere man sacrificed to propitiate a deity."[86] A sacrifice is very
commonly believed to be endowed with such a power, not as an original
quality, but in consequence of its contact or communion with the
supernatural being to which it is offered. Just as the Meriah of the
Kandhs is taken round the village, from door to door, and some pluck
hair from his head, while others beg for a drop of his spittle, so,
among the nomadic Arabs of Morocco, at the Muhammedan "Great Feast," a
man dressed in the bloody skin of the sheep which has been sacrificed
on that occasion, goes from tent to tent, and beats each tent with his
stick so as to confer blessings on its inhabitants. For he is now
endowed with _l-baraka del-[(]id_, "the benign virtue of the feast";
and the same power is ascribed to various parts of the sacrificed
sheep, which are consequently used for magical purposes. If Dr.
Frazer's way of arguing were correct we should have to conclude that
the victim was originally the god himself, or a representative of the
god, to whom it is now offered in sacrifice. But the absurdity of any
such inference becomes apparent at once when we consider that, in
Morocco, every offering to a holy person, for instance to a deceased
saint, is considered to participate in its sanctity. When the saint
has his feast, and animals and other presents are brought to his tomb,
it is customary for his descendants--who have a right to the
offerings--to distribute {446} some flesh of the slaughtered animals
among their friends, thereby conferring _l-baraka_ of the saint upon
those who eat it; and even candles which have been offered to the
saint are given away for the same purpose, being instinct with his
_baraka_. Of course, what holds good of the Arabs in Morocco does not
necessarily hold good of the Kandhs of Bengal; but it should be
remembered that Dr. Frazer's argument is founded on the notion that
the ascription of a magic power to a victim which is offered in
sacrifice to a god indicates that the victim was once regarded as a
divine being or as the god himself; and the facts I have recorded
certainly prove the arbitrariness of this supposition.
[Footnote 86: _Ibid._ ii. 246.]
This is by no means the only objection which may be raised against
Dr. Frazer's hypothesis. In his description of the rite in question he
has emphasised its connection with agriculture to a degree which is
far from being justified by the accounts given by our authorities. Mr.
Macpherson states that the human sacrifice to Tari Pennu was
celebrated as a public oblation by tribes, branches of tribes, or
villages, both at social festivals held periodically, and when special
occasions demanded exceptional propitiations. It was celebrated "upon
the occurrence of an extraordinary number of deaths by disease; or
should very many die in childbirth; or should the flocks or herds
suffer largely from disease, or from wild beasts; or should the
greater crops threaten to fail"; while the occurrence of any marked
calamity to the families of the chiefs, whose fortunes were regarded
as the principal indication of the disposition of Tari towards their
tribes, was held to be a token of wrath which could not be too
speedily averted.[87] Moreover, besides these social offerings, the
rite was performed by individuals to avert the wrath of Tari from
themselves and their families, for instance, if a child, when watching
his father's flock, was carried off by a tiger.[88] So, also, Mr.
Campbell observes that the human blood was offered to the Earth
goddess, "in the hope of thus obtaining abundant crops, averting
calamity, and insuring general prosperity";[89] or that it was
supposed "that good crops, and safety from all disease and accidents,
were ensured by this slaughter."[90] According to another authority,
Mr. Russell, the assembled multitude, when dancing round the victim,
addressed the earth in the following words, "O God, we offer this
sacrifice to you; give us good crops, seasons, and health."[91] Nor
was the magic {447} virtue of the Meriah utilised solely for the
benefit of the crops. According to one account, part of the flesh was
buried near the village idol as an offering to the earth, and part on
the boundaries of the village;[92] whilst in the invocation made by
the priest, the goddess was represented as saying, "Let each man place
a shred of the flesh in his fields, in his grain-store, and in his
yard."[93] The ashes, again, were scattered over the fields, or "laid
as paste over the houses and granaries."[94] It is also worth noticing
that, among the Kandhs of Maji Deso, the offering was not at all made
for the special purpose of obtaining cereal produce, "but for general
prosperity, and blessings for themselves and families";[95] and that
in the neighbouring principality, Chinna Kimedy, inhabited for the
most part by Ooryahs, the sacrifice was not offered to the earth
alone, "but to a number of deities, whose power is essential to life
and happiness," especially to the god of war, the great god, and the
sun god.[96] Now, whilst all these facts are in perfect agreement with
the theory of substitution, they certainly do not justify the
supposition that the Meriah was the representative of a deity of
vegetation.
[Footnote 87: Macpherson, _op. cit._ p. 113 _sq._ See, also, _ibid._
pp. 120, 128 _sqq._]
[Footnote 88: _Ibid._ p. 113 _sq._]
[Footnote 89: Campbell, _op. cit._ p. 51.]
[Footnote 90: _Ibid._ p. 56. _Cf._ _ibid._ p. 73.]
[Footnote 91: Russell, quoted _ibid._ p. 54.]
[Footnote 92: Russell, quoted _ibid._ p. 55.]
[Footnote 93: Macpherson, _op. cit._ p. 122 _sq._]
[Footnote 94: _Ibid._ p. 128.]
[Footnote 95: Campbell, _op. cit._ p. 181.]
[Footnote 96: _Ibid._ p. 120. _Cf._ _ibid._ p. 197:--Among the Ooryahs
human sacrifice is "performed on important occasions, such as going to
battle, building a fort in an important village, and to avert any
threatened danger."]
The same may be said about other cases mentioned by Dr. Frazer,
when more closely examined. "The Indians of Guayaquil, in Ecuador," he
says, "used to sacrifice human blood and the hearts of men when they
sowed their fields."[97] But our authority, Cieza de Leon, adds that
those Indians also offered human victims when their chiefs were sick
"to appease the wrath of their gods."[98] "The Pawnees," Dr. Frazer
writes, "annually sacrificed a human victim in spring when they sowed
their fields. The sacrifice was believed to have been enjoined on them
by the Morning Star, or by a certain bird which the Morning Star had
sent to them as its messenger . . . . They thought that an omission of
this sacrifice would be followed by the total failure of the crops of
maize, beans, and pumpkins.[99] James, to whom Dr. Frazer refers, and
other authorities say that the human sacrifice was a propitiatory
offering made _to_ that star,[100] a planet which especially with the
Skidi--the only section {448} of the Pawnees who offered human
sacrifices--was an object of superstitious veneration.[101] Sickness,
misfortune, and personal mishaps of various kinds were often spoken of
as attributable to the incurred ill-will of the heavenly bodies;[102]
and the object of the sacrifice to the morning star is expressly said
to have been "to avert the evil influences exerted by that
planet."[103] According to Mr. Dunbar, whose important[104] article
dealing with the subject has escaped Dr. Frazer's notice, "the design
of the bloody ordeal was to conciliate that being and secure a good
crop. Hence," he continues, "it has been supposed that the morning
star was regarded by them as presiding over agriculture, but this was
a mistake. They sacrificed to that star because they feared it,
imagining that it exerted malign influence if not well disposed. It
has also been stated that the sacrifice was made annually. This, too,
was an error. It was made only when special occurrences were
interpreted as calling for it."[105] At the present day the Indians
speak of the sacrifice as having been made to Ti-ra'-wa, the Supreme
Being or the deity "who is in and of everything."[106] In the detailed
account of the rite, which was given to Mr. Grinnell by an old chief
who had himself witnessed it several times, it is said:--"While the
smoke of the blood and the buffalo meat, and of the burning body,
ascended to the sky, all the people prayed to Ti-ra'-wa, and walked by
the fire and grasped handfuls of the smoke, and passed it over their
bodies and over those of their children, and prayed Ti-ra'-wa to take
pity on them, and to give them health, and success in war, and
plenteous crops . . . . This sacrifice always seemed acceptable to
Ti-ra'-wa, and when the Skidi made it they always seemed to have good
fortune in war, and good crops, and they were always well."[107]
According to this description, then, the human sacrifice of the
Pawnees, like that of the Kandhs, was not an exclusively agricultural
rite, but was performed for the purpose of averting dangers of various
kinds. And this is also suggested by Mr. Dunbar's relation of the last
instance of this sacrifice, which occurred in April, 1838. In the
previous winter the Skidi, soon after starting on their hunt, had a
successful fight with a band of Oglala Dacotahs, and fearing that the
Dacotahs would retaliate by coming upon them in overwhelming force,
{449} they returned for safety to their village before taking a
sufficient number of buffaloes. "With little to eat, they lived
miserably, lost many of their ponies from scarcity of forage, and,
worst of all, one of the captives proved to have the small-pox, which
rapidly spread through the band, and in the spring was communicated to
the rest of the tribe. All these accumulated misfortunes the Ski'-di
attributed to the anger of the morning star; and accordingly they
resolved to propitiate its favour by a repetition of the sacrifice,
though in direct violation of a stipulation made two years before that
the sacrifice should not occur again."[108]
[Footnote 97: Frazer, _op. cit._ ii. 238.]
[Footnote 98: Cieza de Leon, _La Crónica del Perú_ [parte primera],
ch. 55 (_Biblioteca de autores españoles_, xxvi. 409).]
[Footnote 99: Frazer, _op. cit._ ii. 238.]
[Footnote 100: James, _Expedition from Pittsburg to the Rocky
Mountains_, i. 357. Grinnell, _Pawnee Hero Stories and Folk-Tales_, p.
357. Dunbar, 'Pawnee Indians,' in _Magazine of American History_,
viii. 738.]
[Footnote 101: Dunbar, _loc. cit._ p. 738.]
[Footnote 102: _Ibid._ p. 736.]
[Footnote 103: Grinnell, _op. cit._ p. 357.]
[Footnote 104: Mr. Dunbar is "born and reared among the Pawnees,
familiar with them until early manhood, a frequent visitor to the
tribe in later years" (Grinnell, _op. cit._ p. 213).]
[Footnote 105: Dunbar, _loc. cit._ p. 738 _sq._]
[Footnote 106: Grinnell, _op. cit._ pp. 357, 358, xvii.]
[Footnote 107: _Ibid._ p. 367.]
[Footnote 108: Dunbar, _loc. cit._ p. 740.]
Nor is there any reason whatever to suppose that the Brahman boys
whom the Gonds of India used to kidnap and keep as victims to be
sacrificed on various occasions,[109] were regarded as representatives
of a spirit or god. They were offered up to Bhímsen, the chief object
of worship among the Gonds, represented by a piece of iron fixed in a
stone or in a tree,[110] now "to sanctify a marriage, now to be wedded
to the soil, and again to be given away to the evil spirit of the
epidemic raging," or "on the eve of a struggle."[111]
[Footnote 109: Frazer, _op. cit._ ii. 241.]
[Footnote 110: _Panjab Notes and Queries_, § 550, vol. ii. 90.]
[Footnote 111: _Ibid._ § 721, vol. ii. 127 _sq._]
Dr. Frazer writes:--"At Lagos In Guinea it was the custom annually
to impale a young girl alive soon after the spring equinox in order to
secure good crops . . . . A similar sacrifice used to be annually
offered at Benin."[112] But Dr. Frazer omits an important fact
mentioned or alluded to by the two authorities he quotes which gives
us the key to the custom, without suggesting that it has anything to
do with the corn-spirit. Adams states that the young woman was impaled
"to propitiate the favour of the goddess presiding over the rainy
season, that she may fill the horn of plenty."[113] And M. Bouche
observes, "Au Bénin, on a conservé jusqu'à présent un usage qui
régnait jadis à Lagos et ailleurs: celui d'empaler une jeune fille, au
commencement de la saison des pluies, afin de rendre les orichas
propices aux récoltes."[114] From these statements it appears that the
sacrifice was intended to influence the rain, on which the crops
essentially depend. That its immediate object was to produce rain is
expressly affirmed by Sir R. Burton. At Benin he saw "a young woman
lashed to a scaffolding upon the summit of a tall blasted tree and
being devoured by the turkey-buzzards. The people declared it to be a
'fetish,' or {450} charm for bringing rain."[115] We have previously
noticed that the people of Benin also have recourse to a human
sacrifice if there is too much rain, or too much sun, so that the
crops are in danger of being spoiled.[116] The theory of substitution
accounts for all these cases.
[Footnote 112: Frazer, _op. cit._ ii. 239.]
[Footnote 113: Adams, _Sketches taken during Ten Voyages to Africa_,
p. 25.]
[Footnote 114: Bouche, _Sept ans en Afrique occidentale_, p. 132.]
[Footnote 115: Burton, _Abeokuta_, i. 19 n.*]
[Footnote 116: _Supra_, p. 443 _sq._]
The practice of offering human victims for the purpose of
preventing drought and famine by producing rain is apparently not
restricted to West Africa. In the beginning of their year, the ancient
Mexicans sacrificed many prisoners of war and children who had been
purchased for that purpose, to the gods of water, so as to induce them
to give the rain necessary for the crops.[117] The Pipiles of
Guatemala celebrated every year two festivals which were accompanied
by human sacrifices, the one in the beginning of the rainy season, the
other in the beginning of the dry season.[118] In India, among the
aboriginal tribes to the south-west of Beerbhoom, Sir W. W. Hunter
"heard vague reports of human sacrifices in the forests, with a view
to procuring the early arrival of the rains."[119] Without venturing
to express any definite opinion on a very obscure subject which has
already led to so many guesses,[120] I may perhaps be justified in
here calling attention to the fact that Zeus Lycæus, in whose cult
human sacrifices played a prominent part, was conceived of as a god
who sent the rain.[121] It appears from ancient traditions or legends
that the idea of procuring rainfall by means of such sacrifices was
not unfamiliar to the Greeks. A certain Molpis offered himself to Zeus
Ombrios, the rain-god, in time of drought.[122] Pausanias tells us
that once, when a drought had for some time afflicted Greece,
messengers were sent to Delphi to inquire the cause, and to beg for a
riddance of the evil. The Pythian priestess told them to propitiate
Zeus, and that Aeacus should be the intercessor; and then Aeacus, by
sacrifices and prayers to Panhellenian Zeus, procured rain for
Greece.[123] But Diodorus adds that the drought and famine, whilst
ceasing in all other parts of the country, still continued in Attica,
so that the {451} Athenians once more resorted to the Oracle. The
answer was now given them that they had to expiate the murder of
Androgeus, and that this should be done in any way his father, Minos,
required. The satisfaction demanded by the latter was, that they every
nine years should send seven boys and as many girls to be devoured by
the Minotaur, and that this should be done as long as the monster
lived. So the **Athenians did, and the calamity ceased.[124]
[Footnote 117: Sahagun, _Historia general de las cosas de Nueva
España_, i. 50. Torquemada, _Monarchia Indiana_, ii. 251. Clavigero,
_op. cit._ i. 297.]
[Footnote 118: Stoll, _Ethnologie der Indianerstämme von Guatemala_,
p. 46.]
[Footnote 119: Hunter, _Annals of Rural Bengal_, i. 128.]
[Footnote 120: See Immerwahr, _Die Kulte und Mythen Arkadiens_, i. 16
_sqq._ Professor Robertson Smith suggests ('Sacrifice,' in
_Encyclopædia Britannica_, xxi. 136) that the human sacrifices offered
to Zeus Lycæus were originally cannibal feasts of a wolf tribe.]
[Footnote 121: Pausanias, viii. 38. 4. Farnell, _op. cit._ i. 41.]
[Footnote 122: Farnell, _op. cit._ i. 42.]
[Footnote 123: Pausanias, ii. 29. 7 _sq._]
[Footnote 124: Diodorus Siculus, _op. cit._ iv. 61. 1 _sqq._]
As an instance of the close relationship which exists between human
sacrifices offered for agricultural purposes and other human
sacrifices, the following case may also be mentioned. According to
Strachey, the Indians in some part of Virginia had a yearly sacrifice
of children. These sacrifices they held so necessary that if they
should omit them, they supposed their gods "would let them no deare,
turkies, corne, nor fish," and, besides, "would make a great slaughter
amongst them."[125]
[Footnote 125: Strachey, _History of Travaile into Virginia
Britannia_, p. 95 _sq._]
Men require for their subsistence not only food, but drink. Hence when
the earth fails to supply them with water, they are liable to regard
it as an attempt against their lives, which can be averted only by the
sacrifice of a human substitute.
In India, in former times, human victims were offered to several
minor gods "whenever a newly excavated tank failed to produce
sufficient water."[126] In Kâthiâwâr, for instance, if a pond had been
dug and would not hold water, a man was sacrificed; and the Vadala
lake in Bombay "refused to hold water till the local spirit was
appeased by the sacrifice of the daughter of the village
headman."[127] There is a legend that, when the bed of the Saugor lake
remained dry, the builder "was told, in a dream, or by a priest, that
it would continue so till he should consent to sacrifice his own
daughter, then a girl, and the young lad to whom she had been
affianced, to the tutelary god of the place. He accordingly built a
little shrine in the centre of the valley, which was to become the bed
of the lake, put the two children in, and built up the doorway. He had
no sooner done so than the whole of the valley became filled with
water."[128] When Colonel Campbell was rescuing Meriahs among the
{452} Kandhs, it was believed by some that he was collecting victims
for the purpose of sacrificing them on the plains to the water deity,
because the water had disappeared from a large tank which he had
constructed.[129] According to a story related by Pausanias, the
district of Haliartus was originally parched and waterless, hence one
of the rulers went to Delphi and inquired how the people should find
water in the land. "The Pythian priestess commanded him to slay the
first person he should meet on his return to Haliartus. On his arrival
he was met by his son Lophis, and, without hesitation, he struck the
young man with his sword. The youth had life enough left to run about,
and where the blood flowed water gushed from the ground. Therefore the
river is called Lophis."[130]
[Footnote 126: Rájendralála Mitra, _op. cit._ ii. 111.]
[Footnote 127: Crooke, _Popular Religion of Northern India_, ii. 174.]
[Footnote 128: Sleeman, _Rambles_, i. 129 _sq._]
[Footnote 129: Campbell, _Wild Tribes of Khondistan_, p. 129.]
[Footnote 130: Pausanias, ix. 33. 4.]
Human sacrifices are offered with a view to averting perils arising
from the sea or from rivers.
When the Greeks were afflicted by stress of weather at Aulis, they
were bidden to sacrifice Iphigenia, in order to lull the winds.[131]
Menelaus was persecuted by the Egyptians for sacrificing two children
when he was desirous of sailing away and contrary winds detained
him.[132] According to an Athenian writer, the colonists who first
went to Lesbos were directed by an oracle to throw a virgin into the
sea, as an offering to Poseidon.[133] Sextus Pompeius cast men into
the sea as an offering to Neptune.[134] Hamilcar, also, following a
custom of his country, threw a company of priests into the sea, as a
sacrifice to the sea god.[135] The Saxons, when they were about to
leave the coast of Gaul and sail home, sacrificed the tenth part of
their captives.[136] The Vikings of Scandinavia, when launching a new
ship, seemed to have bound a victim to the rollers on which the vessel
slipped into the sea, thus reddening the keel with sacrificial
blood.[137] In 1784, at the launching of one of the Bey of Tripoli's
cruisers, a black slave was led forward and fastened at the prow of
the vessel.[138] The Fijians launched their canoes over the living
bodies of slaves as rollers,[139] or, according to {453} another
account, when a large canoe was launched, they laid hold of the first
person, man or woman, whom they encountered, and carried the victim
home for a feast.[140] On the deck of a new boat belonging to the most
powerful chief in the group, ten or more men were slaughtered, in
order that it might be washed with human blood.[141]
[Footnote 131: Aeschylus, _Agamemnon_, 215 _sq._]
[Footnote 132: Herodotus, ii. 119.]
[Footnote 133: Athenæus, _Deipnosophistæ_, xi. 15.]
[Footnote 134: Dio Cassius, _Historia Romana_, xlviii. 48.]
[Footnote 135: Diodorus Siculus, xiii. 86.]
[Footnote 136: Sidonius Apollinaris, _Epistulæ_, viii. 6. 15.]
[Footnote 137: Vigfusson and Powell, _op. cit._ i. 410; ii. 349.]
[Footnote 138: Simpson, quoted by Grant Allen, _Evolution of the Idea
of God_, p. 263.]
[Footnote 139: Erskine, _Cruise among the Islands of the Western
Pacific_, p. 249.]
[Footnote 140: Wilkes, _U.S. Exploring Expedition_, iii. 97. _Cf._
Williams and Calvert, _op. cit._ p. 175.]
[Footnote 141: Wilkes, _op. cit._ iii. 97.]
The Zuñi Indians have a tradition that the waters of their valley
once rose in a flood and compelled the inhabitants to flee to a
table-land several hundred feet high for safety; and when the waters
still rose, threatening to submerge the table-land itself, the priest
determined to sacrifice a youth and a maiden to propitiate them.[142]
When Seleucus Nicator founded Antioch on the Orontes, the high priest
sacrificed a virgin at a place between the town and the river,[143]
presumably in order to prevent the town from being flooded by the
river. When the converted Franks marched to Italy under their king,
Theodebert, to fight against the Goths under Vitigis, and were on the
point of crossing the Po, they sacrificed what children and wives of
Goths they found, and threw their corpses into the river, according to
Procopius, "as the first fruits of the war."[144] At Rome, every year
on the Ides of May, the Vestal Virgins threw from the Sublician bridge
into the Tiber thirty human effigies formed of rushes; the Romans
themselves were of opinion that at an earlier period living men had
been hurled into the river, and that it was Hercules who first
substituted images of straw.[145] In West Africa human sacrifices are
often offered to rivers. Major Ellis states that at each town or
considerable village upon the banks of the river Prah sacrifice is
held on a day about the middle of October, to Prah. "As loss of life
frequently occurs in this river, from persons attempting to cross it
when flooded, from a sudden rise, or from those hundred minor
accidents which must always occur in the neighbourhood of a deep and
strong stream, the gods of the Prah are considered very malignant. The
sacrifice is, in consequence, proportionate. The usual sacrifice in
former times was two human adults, one male and one female. They. . . .
were decapitated on the bank of the river, and the stool and image
of the god washed with their {454} blood. The bodies were then cut
into a number of pieces, which were distributed amongst the mangroves,
or the sedge bordering the river, for the crocodiles to eat;
crocodiles being sacred in Prah."[146] According to M. le Comte de
Cardi, all the river-side tribes of the Niger Delta used to propitiate
the river deity by the sacrifice of a copper-coloured girl, procured
from a tribe of Ibos inhabiting a country away in the hinterland of
New Calabar, or in some places an Albino; and it seems that this
custom is still practised in the British Protectorate.[147] The Ibos
themselves were in the habit of throwing human beings into the river
to be eaten by alligators or fishes, or to fasten them to trees or
branches, close to the river, where they were left to perish by
hunger.[148] In Eastern Central Africa, also, human sacrifices are
offered to rivers.[149] And in the East Indies there are various
traditions of such sacrifices being made to the divine crocodiles of
the sea.[150]
[Footnote 142: Stevenson, 'A Chapter of Zuñi Mythology,' in _Memoirs
of the International Congress of Anthropology_, Chicago, p. 316.]
[Footnote 143: Malala, _Chronographia_, viii. 255 (200).]
[Footnote 144: Procopius, _Bellum Gothicum_, ii. 25.]
[Footnote 145: Ovid, _Fasti_, 621 _sq._ Dionysius of Halicarnassus,
_Antiquitates Romanæ_, i. 38. Hartland, _Legend of Perseus_, iii.
78.]
[Footnote 146: Ellis, _Tshi-speaking Peoples_, p. 64 _sq._ _Cf._
_Idem_, _Land of Fetish_, p. 122.]
[Footnote 147: Comte de Cardi, 'Ju-ju Laws and Customs in the Niger
Delta,' in _Jour. Anthr. Inst._ xxix. 54. _Cf._ Mockler-Ferryman,
_British Nigeria_, p. 235.]
[Footnote 148: Schoen and Crowther, _op. cit._ p. 49.]
[Footnote 149: Macdonald, _Africana_, i. 96.]
[Footnote 150: Tylor, 'Anniversary Address,' in _Jour. Anthr. Inst._
xxi. 408. Hartland, _op. cit._ iii. 70 _sq._]
In the cases which we have hitherto considered the offering of human
sacrifices is mostly a matter of public concern, a method of ensuring
the lives of many by the death of one or a few. But human life is also
sacrificed, by way of substitution, for the purpose of preventing the
death of some particular individual, especially a chief or a king,
from sickness, old age, or other circumstances.
In Guatemala, in the case of a dangerous illness, human sacrifice
was resorted to when all other attempts to cure the patient failed. Of
the Indians of Guayaquil, Cieza de Leon states:--"When the chiefs were
sick, to appease the wrath of their gods, and pray for health, they
made . . . . sacrifices of a superstitious nature, killing men (as I
was told), and believing that human blood was a grateful
offering."[151] Acosta writes:--"They vsed in Peru to sacrifice yong
children of foure or six yeares old vnto tenne; and the greatest parte
of these sacrifices were for the affaires that did import the Ynca, as
in sickness for his health, and when he went to the {455} warres for
victory, or when they gave the wreathe to their new Ynca, which is the
marke of a King, as heere the Scepter and the Crowne be. In this
solemnitie they sacrificed the number of two hundred children, from
foure to ten yeares of age . . . . If any Indian qualified or of the
common sorte were sicke, and that the Divine told him confidently that
he should die, they did then sacrifice his owne sonne to the Sunne or
to Virachoca, desiring them to be satisfied with him, and that they
would not deprive the father of life."[152] According to Molina, "the
Lord Ynca offered sacrifices [of children] when he began to reign,
that the _huacas_ [or idols] might give him health, and preserve his
dominions in peace."[153] Herrera tells us that the ancient Peruvians,
when any person of note was sick, and the priest predicted his death,
sacrificed the patient's son, "desiring the idol to be satisfie'd with
him, and not to take away his father's life."[154] Garcilasso de la
Vega, again, denies the existence of any such custom in the kingdom of
the Incas,[155] but asserts that, before their reign, the Indians of
Peru offered up their own children on certain occasions.[156]
According to Jerez, some of the Peruvian Indians sacrificed their own
children each month, and anointed with the blood the faces of their
idols and the doors of their temples.[157] The Tonga Islanders had a
ceremony called _nawgia_, or the ceremony of strangling children as
sacrifices to the gods, for the recovery of a sick relative. Our
informant says:--"All the bystanders behold the innocent victim with
feelings of the greatest pity; but it is proper, they think, to
sacrifice a child who is at present of no use to society, and perhaps
may not otherwise live to be, with the hope of recovering a sick
chief, whom all esteem and whom all think it a most important duty to
respect, defend, and preserve, that his life may be of advantage to
the country."[158] The Tahitians offered human sacrifices during the
illnesses of their rulers.[159] In the Philippines, if a prince was
dangerously ill or dying, slaves were slaughtered in order to satisfy
the malignant ancestral soul who was supposed to have caused the
disease.[160] Among the Dyaks, when a raja "falls sick, or goes on a
journey, it is {456} common for him to vow a head to his tribe in case
of recovery or of safe return. Should he die, one or two heads are
usually offered by the tribe as a kind of sacrifice."[161] Among the
Banjârîlu of Southern India, who are great travelling traders, it was
formerly the custom "before starting out on a journey to procure a
little child, and bury it in the ground up to its shoulders, and then
drive their loaded bullocks over the unfortunate victim, and in
proportion to the bullocks thoroughly trampling the child to death, so
their belief in a successful journey increased."[162] In India human
sacrifices were also offered to the goddess Chandiká to save the life
of a king.[163] It is probable that the idea of substitution likewise
accounts for the sacrifice of a young girl which a certain raja is
reported to have offered in 1861, at the shrine of the goddess Durga,
in the town of Jaipúr, when he installed himself at his father's
decease,[164] and for the sacrifice of a Brahmin which a raja of
Ratanpúr had offered up to Deví every year.[165] In Great Benin, once
a year, at the end of the rainy season, all the king's beads were
brought out by the boys in whose care they were kept. They were put in
a heap, and a slave was compelled to kneel down over them. The king
cut or struck the head of the slave with a spear so that the blood ran
over the beads, and said to them, "Oh, beads, when I put you on, give
me wisdom and don't let any juju or bad thing come near me." Then the
slave was told, "So you shall tell the head juju when you see him."
The slave was led out and beheaded, but his head was brought in again,
and the beads were touched with it.[166] Among the ancient Gauls
persons who were troubled with unusually severe diseases either
sacrificed men or promised that they would make such sacrifices.[167]
In the Ynglingasaga we are told that King Aun sacrificed nine sons,
one after the other, to Odin for the purpose of obtaining a
prolongation of his life.[168] According to Macrobius, the ancient
Romans immolated children to the goddess Mania, the mother of the
Lares, "to promote the health of the families."[169] Suetonius states
that Nero, frightened by the sight of a comet, sacrificed a number of
Roman noblemen {457} in order to avert the disaster from himself.[170]
Antinous, according to one account, sacrificed himself to prolong the
life of Hadrian.[171] The notion that the death of one person may
serve as a substitute for the death of another still prevails in the
Vatican. When, during Leo XIII.'s last illness, one of the Cardinals
died, it was said that his death had saved the life of the Pope,
Heaven being satisfied with one victim. In Morocco, if a son or a
daughter dies, it is customary to say to the afflicted parents, "Why
are you sorry? Your child took away your misfortune (_bas_)." A
similar custom prevails in Syria and Palestine.[172]
[Footnote 151: Cieza de Leon, _La Crónica del Perú_ [parte primera],
ch. 55 (_Biblioteca de autores españoles_, xxvi. 409).]
[Footnote 152: Acosta, _op. cit._ ii. 344.]
[Footnote 153: de Molina, _loc. cit._ p. 55.]
[Footnote 154: Herrera, _General History of the West Indies_, iv. 347.]
[Footnote 155: Garcilasso de la Vega, _op. cit._ i. 131.]
[Footnote 156: _Ibid._ i. 50.]
[Footnote 157: Jerez, 'Conquista del Perú,' in _Biblioteca de autores
españoles_, xxvi. 327.]
[Footnote 158: Mariner, _Natives of the Tonga Islands_, ii. 220.]
[Footnote 159: Ellis, _Polynesian Researches_, i. 346.]
[Footnote 160: Blumentritt, quoted by Wilken, 'Ueber das Haaropfer,'
in _Revue coloniale internationale_, 1887, i. 364 _sq._]
[Footnote 161: Pfeiffer, _A Lady's Second Journey round the World_,
i. 86.]
[Footnote 162: Cain, 'Bhadrachellam and Rekapalli Taluqas,' in _Indian
Antiquary_, viii. 219.]
[Footnote 163: Crooke, _Popular Religion in Northern India_, ii. 168.]
[Footnote 164: _North Indian Notes and Queries_, § 310, vol. i. 40.]
[Footnote 165: _Panjab Notes and Queries_, § 869, vol. ii. 162.]
[Footnote 166: Moor and Roupell, quoted by Read and Dalton, _op. cit._
p. 7; also by Ling Roth, _Great Benin_, p. 71.]
[Footnote 167: Cæsar, _De bello gallico_, vi. 16.]
[Footnote 168: Snorri Sturluson, 'Ynglingasaga,' 25, in
_Heimskringla_, i. 45 _sqq._]
[Footnote 169: Macrobius, _Saturnalia_, i. 7.]
[Footnote 170: Suetonius, _Nero_, 36.]
[Footnote 171: Spartian, _Vita Hadriani_, 14. Aurelius Victor, _De
Cæsaribus_, 14. Dio Cassius, _Historia Romana_, lxix. 11.]
[Footnote 172: Curtiss, _Primitive Semitic Religion To-day_, p. 208.]
Men are sacrificed not only to preserve the lives of other men, but to
help other men into existence. Barrenness is attributed to some god
keeping back the children which would otherwise be born in the due
course of nature. And in order to remove this obstacle a human being,
generally a child, is sacrificed to serve, as it were, as a
substitute. This I take to be the explanation of the practice of
offering a human sacrifice with a view to promoting fecundity, a
practice which has been particularly common in India.
In the history of ancient Mexico we read of Nezahualcoyotl, prince
of the Tezcucans, who had been married some years without being blest
with issue. "The priests represented that it was owing to his neglect
of the gods of his country, and that his only remedy was to propitiate
them by human sacrifice."[173] In Hindu traditions and books a
numerous offspring is promised to him who offers a man in
sacrifice.[174] In Jainteapore, east of Sylhet, human sacrifices were
made to the goddess Kali, in hopes of procuring progeny.[175] Speaking
of the Mahadeo sandstone hills which, in the Sathpore range, overlook
the Nerbudda to the south, Sir W. H. Sleeman states:--"When a woman is
without children she makes votive offerings to all the gods who can,
she thinks, assist her; and promises of still greater in case they
should grant what she wants. Smaller promises being found of no avail,
she at last promises her first-born, if a {458} male, to the god of
destruction, Mahadeo. If she gets a son she conceals from him her vows
till he has attained the age of puberty; she then communicates it to
him, and enjoins him to fulfil it." From that moment he regards
himself as devoted to the god, and, at the annual fair on the Mahadeo
hills, throws himself from a perpendicular height of four or five
hundred feet, and is dashed to pieces upon the rocks below.[176] In
one of the tales of Somadeva an ascetic tells a woman that, if she
killed her young son and offered him to the divinity, another son
would certainly be born to her.[177] We meet with a similar idea in
the story of king Somaka. For some time he did not succeed in getting
a single son from any of his one hundred wives. Finally he got a
single son; but he wanted more, and asked the family priest whether
there was not a ceremony which could help him to a hundred sons. The
family priest answered:--"O king! let me set on foot a sacrifice, and
thou must sacrifice thy son, Jantu, in it. Then on no distant date, a
century of handsome sons will be born to thee. When Jantu's fat will
be put into the fire as an offering to the gods, the mothers will take
a smell of that smoke, and bring forth a number of sons, valorous and
strong. And Jantu also will once more be born as a self-begotten son
of thine, in that very mother; and on his back there will appear a
mark of gold." The son was sacrificed; the wives smelt the smell of
the burnt-offering; all of them became with child; and when ten months
had passed one hundred sons were born to Somaka, of whom Jantu was the
eldest, being born of his former mother. But the family priest
departed this life, and was grilled for a certain period in a terrible
hell as a punishment for what he had done.[178]
[Footnote 173: Prescott, _History of the Conquest of Mexico_, p. 91.]
[Footnote 174: Chevers, _op. cit._ p. 399.]
[Footnote 175: Macnaghten, quoted _ibid._ p. 397.]
[Footnote 176: Sleeman, _op. cit._ i. 132 _sq._]
[Footnote 177: Crooke, _Popular Religion of Northern India_, ii. 173.]
[Footnote 178: _Mahabharata_, Vana Parva, 127 _sq._ (pt. vi.
p. 188 _sq._).]
Among certain peoples it is a regular custom to kill the firstborn
child, or the firstborn son.
Among some natives of Australia a mother used to kill and eat her
first child, as this was believed to strengthen her for later
births.[179] In New South Wales the firstborn of every lubra used to
be eaten by the tribe "as part of a religious ceremony."[180] In the
realm of Khai-muh, in China, according to {459} a native account, it
was customary to kill and devour the eldest son alive.[181] Among
certain tribes in British Columbia the first child is often sacrificed
to the sun.[182] The Indians of Florida, according to Le Moyne de
Morgues, sacrificed the firstborn son to the chief.[183] We are told
that, among the people of Senjero in Eastern Africa, many families
"must offer up their firstborn sons as sacrifices, because once upon a
time, when summer and winter were jumbled together in a bad season,
and the fruits of the field would not ripen, the sooth-sayers enjoined
it."[184] The heathen Russians often sacrificed their firstborn to the
god Perun.[185] The rule laid down in Exodus[186] and Numbers,[187]
that all the firstborn of men and of beasts belonged to the Lord, but
that the former were to be redeemed, seems to indicate the existence
of an earlier custom among the Hebrews of offering up as a sacrifice,
not only the firstling of an animal, but the firstborn child. As
traces of such a custom may probably be regarded the story of
Abraham's surrender of his firstborn son to God and the tradition of
the origin of the Passover.[188] Among the Hindus, until the beginning
of the last century, many parents sacrificed their firstborn to the
river Ganges.[189]
[Footnote 179: Brinton, _Religions of Primitive Peoples_, p. 17 n.*
_Cf._ von Scherzer, _Reise der Oesterreichischen Fregatte Novara um
die Erde_, iii. 32.]
[Footnote 180: Brough Smyth, _Aborigines of Victoria_, ii. 311.]
[Footnote 181: de Groot, _Religious System of China_ (vol. ii. book)
i. 679.]
[Footnote 182: Boas, in _Fifth Report on the North-Western Tribes of
Canada_, pp. 46, 52.]
[Footnote 183: Bry, _Narrative of Le Moyne_, Descriptions of the
Illustrations, 34, p. 13. _Cf._ Lafitau, _M[oe]urs des sauvages
ameriquains_, i. 181; Strachey, _op. cit._ p. 84.]
[Footnote 184: Krapf, _Travels_, p. 69 _sq._]
[Footnote 185: Mone, quoted by Frazer, _Golden Bough_, ii. 52.]
[Footnote 186: _Exodus_, xiii. 2, 15.]
[Footnote 187: _Numbers_, xviii. 15.]
[Footnote 188: See Ghillany, _op. cit._ p. 494 _sqq._; Kuenen,
_Religion of Israel_, ii. 92; Frazer, _op. cit._ ii. 47 _sqq._]
[Footnote 189: Rájendralála Mitra, _op. cit._ ii. 70, 76.]
In some instances the firstborn seems to be killed, not in sacrifice
to a god, but for the purpose of being eaten as a kind of
medicine.[190] In other cases the act is a sacrifice in the true sense
of the word and, apparently, substitutional in character. Considering
that children are occasionally sacrificed to save the lives of their
parents, or for the health of the families, or to promote fecundity,
it seems probable that the regular sacrifice of the firstborn has
similar objects in view. This supposition, indeed, is strongly
supported by some statements in which the motive of the act is
expressly mentioned.[191] Among the {460} Coast Salish of British
Columbia the first child is sacrificed to the sun "to secure health
and happiness to the whole family."[192] The same is reported of a
neighbouring people, the Kutonaqa. The mother prays to the sun:--"I am
with child. When it is born I shall offer it to you. Have pity upon
us."[193] Among some tribes of South-Eastern Africa it is a rule that,
when a woman's husband has been killed in battle and she marries
again, the first child to which she gives birth after her second
marriage must be put to death, whether she has it by her first or her
second husband. Such a child is called "the child of the assegai," and
if it were not killed, death or accident would be sure to befall the
second spouse, and the woman herself would be barren.[194] Among some
peoples, including the ancient Hindus, we find the belief that the son
is in some sense identical with his father, that he is a new birth, a
new manifestation of the same person.[195] The new birth might be
supposed to endanger the life of the father, just as, according to a
notion prevalent among the ancient Teutons[196] and in some parts of
Italy,[197] a person would soon die if his name were given to his son
or grandson whilst he was still alive. Among the Brazilian Tupis the
father was accustomed to take a new name after the birth of each new
son;[198] whilst, on killing an enemy, a person used to take the
enemy's name so as to annihilate not only his body but also his
soul.[199] Among the Kafirs, "if a mother gives birth to twins, one is
frequently killed by the father, for the natives think that unless the
father places a lump of earth in the mouth of one of the babies he
will lose his strength."[200] In some {461} cases the practice of
killing the firstborn son might possibly be traced back to a similar
belief. But I can quote no fact directly supporting this suggestion.
[Footnote 190: _Cf._ _supra_, p. 401.]
[Footnote 191: _Cf._ _Micah_, vi. 7: "Shall I give my firstborn for my
transgression, the fruit of my body for the sin of my soul?"]
[Footnote 192: Boas, _op. cit._ p. 46.]
[Footnote 193: _Ibid._ p. 52.]
[Footnote 194: Macdonald, _Light in Africa_, p. 156. Frazer, _op.
cit._ ii. 51 _sq._]
[Footnote 195: Hartland, _op. cit._ i. 217 _sq._ von den Steinen,
_Unter den Naturvölkern Zentral-Brasiliens_, p. 336 _sq._ Leist,
_Alt-arisches Jus Gentium_, p. 98 _sqq._ _Idem_, _Alt-arisches Jus
Civile_, i. 189 _sqq._ _Laws of Manu_, ix. 8: "The husband, after
conception by his wife, becomes an embryo and is born again of her."]
[Footnote 196: Storm, quoted by Noreen, _Spridda Studier_, Anara
Samlingen, p. 4.]
[Footnote 197: Placucci, _Usi e pregiudizj dei contadini della
Romagna_, p. 23.]
[Footnote 198: von den Steinen, _op. cit._ p. 337.]
[Footnote 199: Staden, quoted by Andree, _Anthropophagie_, p. 103.]
[Footnote 200: Kidd, _The Essential Kafir_, p. 202. I am indebted to
Mr. N. W. Thomas for drawing my attention to this statement.]
Human sacrifices are offered in connection with the foundation of
buildings. This is a wide-spread custom, which not only occurs among
various uncivilised and semi-civilised peoples of the present day, but
which is proved to have existed among the so-called Aryan races.[201]
In India we find traces of it in traditions and popular beliefs.[202]
The Hindu rajas, we are told, used to lay the foundation of public
buildings in human blood.[203] When Mr. Grierson wanted to photograph
a Bih[=a]r peasant house, the grandmother of the family refused to
allow any of the children to appear in the picture, her reason being
that the Government was building the bridge across the Gandak and
wanted children to bury under the foundations.[204] Among the ancient
Romans the old custom survived in the practice of placing statues or
images under the foundations of their buildings.[205] In the island of
Zacynthus the peasants to this day believe that in order to secure the
durability of important buildings, such as bridges and fortresses, it
is desirable to kill a man, especially a Muhammedan or a Jew, and bury
him on the spot.[206] South Slavonian folk-tales speak of the
immuration of a woman or a child as a foundation sacrifice.[207] In
Servia no city was thought to be secure unless a human being, or at
least the shadow of one, was built into its walls;[208] and the
Bulgarians, when {462} going to build, are still said to take a thread
and measure the shadow of some casual passer-by, and then bury the
measure under the foundation-stone, expecting that the man whose
shadow has been thus treated will soon die.[209] A similar custom
prevails in Roumania.[210] According to Nennius, when Dinas Emris in
Wales was founded by Gortigern, all the materials collected for the
fortress were carried away in one night; and materials were thus
gathered thrice, and were thrice carried away. When he then asked of
his Druids, "Whence this evil?" the Druids told him that it was
necessary to find a child whose father was unknown, put him to death,
and sprinkle with his blood the ground on which the citadel was to be
built.[211] A Scotch legend tells that, when St. Columba first
attempted to build a cathedral on Iona, the walls fell down as they
were erected; he then received supernatural information that they
would never stand unless a human victim was buried alive, and, in
consequence, his companion, Oran, was interred at the foundation of
the structure.[212] It is reported that, when not long ago the Bridge
Gate of Bremen city walls was demolished, the skeleton of a child was
found embedded in the groundwork;[213] and when the new bridge at
Halle, finished in 1843, was building, "the common people fancied a
child was wanted to be walled into the foundations."[214]
[Footnote 201: Sartori, 'Ueber das Bauopfer,' in _Zeitschrift für
Ethnologie_, xxx. 5 _sqq._ Tylor, _Primitive Culture_, i. 104 _sqq._
Baring-Gould, _Strange Survivals_, p. 4 _sqq._ Trumbull, _Threshold
Covenant_, p. 46 _sqq._ Grant Allen, _Evolution of the Idea of God_,
p. 249 _sqq._ Liebrecht, _Zur Volkskunde_, p. 284 _sqq._ Andree,
_Ethnographische Parallelen_, p. 18 _sqq._ Nyrop, _Romanske Mosaiker_,
p. 63 _sqq._ Krause, 'Das Bauopfer bei den Südslaven,' in
_Mittheilungen der Anthropologischen Gesellschaft in Wien_, xvii. 18
_sqq._ Wuttke, _Der deutsche Volksaberglaube der Gegenwart_, § 440,
p. 300 _sq._]
[Footnote 202: Winternitz, 'Bemerkungen über das Bauopfer bei den
Indern,' in _Mittheil. Anthr. Gesellsch. in Wien_, xvii. [37] _sqq._]
[Footnote 203: Wheeler, _History of India_, iv. 278.]
[Footnote 204: Grierson, _Bih[=a]r Peasant Life_, p. 4.]
[Footnote 205: Coote, 'A Building Superstition,' in _Folk-Lore
Journal_, i. 23.]
[Footnote 206: Schmidt, _Volksleben der Neu-Griechen_, p. 197.]
[Footnote 207: Krauss, _loc. cit._ p. 19 _sqq._]
[Footnote 208: Ralston, _Songs of the Russian People_, p. 127.]
[Footnote 209: _Ibid._ p. 127. Krauss, _loc. cit._ p. 21.]
[Footnote 210: _Folk-Lore Record_, iii. 283.]
[Footnote 211: Nennius, _Historia Britonum_, Irish Version, ch. 18,
p. 93.]
[Footnote 212: Gomme, 'Some Traditions and Superstitions connected
with Buildings,' in _The Antiquary_, iii. 11. Carmichael, _Carmina
Gadelica_, ii. 316.]
[Footnote 213: Baring-Gould, _Strange Survivals_, p. 5.]
[Footnote 214: Grimm, _Teutonic Mythology_, iii. 1142.]
It seems highly probable that the building-sacrifice, like other kinds
of human sacrifice, is based on the idea of substitution. A new house
or dwelling-place is commonly regarded as dangerous, a wall or a tower
is liable to fall down and cause destruction of life, a bridge may
break, or the person who crosses it may tumble into the water and be
drowned. In the Babar Islands, before entering a new house, offerings
are thrown inside, that the spirit, Orloo, may not make the {463}
inmates ill.[215] Before the Sandwich Islanders could occupy their
houses "offerings were made to the gods, and presents to the priest,
who entered the house, uttered prayers, went through other ceremonies,
and slept in it before the owner took possession, in order to prevent
evil spirits from resorting to it, and to secure its inmates from the
effects of incantation."[216] Among the Kayans of Borneo, on the
occasion of the king or principal chief taking possession of a
newly-built house, a human victim was killed, and the blood was
sprinkled on the pillars and under the house.[217] The Russian peasant
believes that the building of a new house "is apt to be followed by
the death of the head of the family for which the new dwelling is
constructed, or that the member of the family who is the first to
enter it will soon die"; and, in accordance with a custom of great
antiquity, the oldest member of a migrating household enters the new
house first.[218] In German folk-tales "the first to cross the bridge,
the first to enter the new building or the country, pays with his
life."[219] Even nowadays, in the North of Europe, there is a
wide-spread fear of being the first to enter a new building or of
going over a newly-built bridge; "if to do this is not everywhere and
in all cases thought to entail death, it is considered supremely
unlucky."[220] This superstition has been interpreted as a survival of
a previous sacrifice;[221] but there can be no doubt, I think, that
the foundation sacrifice itself owes its origin to similar notions and
fears of supernatural dangers. Uncultured people are commonly afraid
of anything new, or of doing an act for the first time;[222] and,
apart from this, the erecting of a new building is an intrusion upon
{464} the land of the local spirit, and therefore likely to arouse its
anger. There are houses which remain haunted by spirits all their
time.[223] It is natural, then, that attempts should be made to avert
the danger. And, human life being at stake, no preventive could be
more effective than the offering up of a human victim.
[Footnote 215: Riedel, _De sluik- en kroesharige rassen tusschen
Selebes en Papua_, p. 343.]
[Footnote 216: Ellis, _Polynesian Researches_, iv. 322.]
[Footnote 217: Burns, 'Kayans of the North-West of Borneo,' in
_Journal of the Indian Archipelago_, iii. 145.]
[Footnote 218: Ralston, _Songs of the Russian People_, p. 126. _Cf._
Krauss, _loc. cit._ p. 21 _sq._ (Southern Slavs).]
[Footnote 219: Grimm, _Teutonic Mythology_, i. 45, n. 2.]
[Footnote 220: Baring-Gould, _Strange Survivals_, p. 2. For various
instances of similar beliefs, see Sartori, in _Zeitschr. f. Ethnol._
xxx. 14 _sqq._; Crawley, _Mystic Rose_, p. 25.]
[Footnote 221: Baring-Gould, _op. cit._ p. 4.]
[Footnote 222: Crawley, _op. cit._ p. 25.]
[Footnote 223: Westermarck, 'Nature of the Arab _[vG]inn_, illustrated
by the Present Beliefs of the People of Morocco,' in _Jour. Anthr.
Inst._ xxix. 253, 260.]
On the other hand it is maintained that the foundation-sacrifice is
partly, if not exclusively, performed for the purpose of converting
the soul of the victim into a protecting demon.[224] This opinion, no
doubt, has the support of beliefs actually held by some of the peoples
who practise the rite. When the gate of the new city of Tavoy, in
Tenasserim, was built, Mason was told by an eye-witness that a
criminal was put in each post-hole to become a guardian spirit.[225]
The Burmese kings used to have victims buried alive at the gates of
their capitals, "so that their spirits might watch over the
city."[226] Formerly, in Siam, "when a new city gate was being
erected, it was customary for a number of officers to lie in wait near
the spot, and seize the first four or eight persons who happened to
pass by, and who were then buried alive under the gate-posts, to serve
as guardian angels."[227] But whatever be the present notions of
certain peoples concerning the object of the building-sacrifice, I do
not believe that its primary object could have been to procure a
spirit-guardian. According to early ideas, the ghost of a murdered man
is not a friendly being, and least of all is he kindly disposed
towards those who killed him. Several instances are known in which
later generations have put upon human sacrifices an interpretation
obviously foreign to their original purpose.[228] Thus, according to a
North {465} German tradition, a master-builder was immured by a
certain knight in the tower which he had built, as a punishment for
boasting that he could have built a still finer tower if he had liked
to do so.[229] An Indian raja, we are told, was once building a bridge
over the river Jargoat Chunâr, and when it fell down several times he
was advised to sacrifice a Brahman girl to the local deity; however,
"she has now become the Marî or ghost of the place, and is regularly
worshipped in time of trouble."[230] Considering that the
foundation-sacrifice was offered for the purpose of protecting the
living against the attacks of the spirit of the place, it is quite
intelligible that the ghost of the victim came in time to be looked
upon as a guardian spirit; and it was all the more natural to
attribute to the dead the function of a guard in cases where he was
buried at the gate. But he was buried there, I presume, simply because
that spot was thought to be the most dangerous. The gate of a town
corresponds to the entrance of a house, and the threshold has almost
universally been regarded as the proper haunt of what the Moors call
"the owners of the place."[231]
[Footnote 224: Tylor, _Primitive Culture_, i. 106. Grant Allen, _op.
cit._ p. 248 _sqq._ Lippert, _Christenthum, Volksglaube und
Volksbrauch_, p. 456 _sq._ _Idem_, _Kulturgeschichte der Menschheit_,
ii. 270. Gaidoz, in _Mélusine_, iv. 14 _sqq._ Sartori, in _Zeitsthr.
f. Ethnol._ xxx. 32 _sqq._]
[Footnote 225: Tylor, _Primitive Culture_, i. 107.]
[Footnote 226: Woodthorpe, in _Jour. Anthr. Inst._ xxvi. 24. See also
Shway Yoe, _The Burman_, i. 286.]
[Footnote 227: Alabaster, _Wheel of the Law_, p. 212 _sq._ _Cf._
Gaidoz, _loc. cit._ p. 14 _sq._]
[Footnote 228: See Nyrop, _Romanske Mosaiker_, p. 73 _sqq._; also
_infra_, p. 465 _sq._]
[Footnote 229: Nyrop, _op. cit._ p. 73.]
[Footnote 230: Crooke, _Popular Religion of Northern India_, ii. 174.]
[Footnote 231: See Trumbull, _Threshold Covenant_, _passim_.]
Whilst the man who is sacrificed is in some cases described as a
guardian, he is in other cases regarded as a messenger. The Mayas of
Yucatan maintained that the human victims whom they offered in times
of distress were sent as messengers to the spirit-world to make known
the wants of the people.[232] The same idea prevailed in Great Benin.
When the head jujuman had said the prayer in which he asked Ogiwo to
let no sickness come for Benin, he thus addressed the slaves who were
going to be clubbed to death and tied in the sacrifice-trees:--"So you
shall tell Ogiwo. Salute him proper."[233] A message was likewise sent
to the head juju with the slave who was sacrificed to it;[234] and a
message saluting the rain-god was put in the {466} mouth of the woman
who was sacrificed when there was too much rain.[235] Mr. Ling Roth
suggests that the main object of the human sacrifices which were
offered in Benin "was the sending of prayers, by means of the special
messengers, for the welfare of the community, to the spirits of the
departed, or to other spirits, such as the spirits of the beads, the
Rain-God, Sun-God, the God-Ogiwo"; and he thinks that this explains "a
cult of world-wide prevalence."[236] But considering that in Yucatan
and Benin, as elsewhere, the human victim was sacrificed for the
avowed purpose of averting some mortal danger from the community or
the king, I conclude that there, also, the primary object of the rite
was to offer a substitute, though this substitute came to be used as a
messenger.
[Footnote 232: Dorman, _op. cit._ p. 213.]
[Footnote 233: Moor and Roupell, quoted by Read and Dalton, _op. cit._
p. 7; also by Ling Roth, _Great Benin_, p. 72.]
[Footnote 234: _Supra_, p. 456.]
[Footnote 235: _Supra_, p. 444.]
[Footnote 236: Ling Roth, _op. cit._ p. 72.]
I do not affirm that the practice of human sacrifice is in every case
based on the idea of substitution; the notion that a certain god has a
desire for such sacrifices may no doubt induce his worshippers to
gratify this desire for a variety of purposes. But I think there is
sufficient evidence to prove that, when men offer the lives of their
fellow-men in sacrifice to their gods, they do so as a rule in the
hopes of thereby saving their own. Human sacrifice is essentially a
method of life-insurance--absurd, no doubt, according to our ideas,
but not an act of wanton cruelty. When practised for the benefit of
the community or in a case of national distress, it is hardly more
cruel than to advocate the infliction of capital punishment on the
ground of social expediency, or to compel thousands of men to suffer
death on the battle-field on behalf of their country. The custom of
human sacrifice admits that the life of one is taken to save the lives
of many, or that an inferior individual is put to death for the
purpose of preventing the death of somebody who has a higher right to
live. Sometimes the king or chief is sacrificed in times of scarcity
or pestilence, but then he is probably held personally responsible for
the calamity.[237] Very frequently {467} the victims are prisoners of
war or other aliens, or slaves, or criminals, that is, persons whose
lives are held in little regard. And in many cases these are the only
victims allowed by custom.
[Footnote 237: Frazer, _Golden Bough_, i. 15 _sq._]
This was generally the case among the ancient Teutons,[238] though
they sometimes deemed a human sacrifice the more efficacious the more
distinguished the victim, and the nearer his relationship to him who
offered the sacrifice.[239] The Gauls, says Cæsar, "consider that the
oblation of such as have been taken in theft, or robbery, or any other
offence, is more acceptable to the immortal gods; but when a supply of
that class is wanting, they have recourse to the oblation of even the
innocent."[240] Diodorus Siculus states that the Carthaginians in
former times used to sacrifice to Saturn the sons of the most eminent
persons, but that, of later times, they secretly bought and bred up
children for that purpose.[241] The chief aim of the wars of the
ancient Mexicans was to make prisoners for sacrificial purposes; other
victims were slaves who were purchased for this object, and many
criminals "who were condemned to expiate their crimes by the sacrifice
of their lives."[242] The Yucatans sacrificed captives taken in war,
and only if such victims were wanting they dedicated their children to
the altar "rather than let the gods be deprived of their due."[243] In
Guatemala the victims were slaves or captives or, among the Pipiles,
illegitimate children from six to twelve years old who belonged to the
tribe.[244] In Florida the human victim who was offered up at harvest
time was chosen from among the Spaniards wrecked on the coast.[245] Of
the Peruvian Indians before the time of the Incas, Garcilasso de la
Vega states that, "besides ordinary things such as animals and maize,
they sacrificed men and women of all ages, being captives taken in
wars which they made against each other."[246] Among the Tshi-speaking
peoples of the Gold Coast, "the persons ordinarily sacrificed to the
gods are prisoners of war or slaves. When the latter, they are usually
aliens, as a protecting god is not so well satisfied with the
sacrifice of his own people."[247] In Great Benin, according to
Captain Roupell, the people who were kept for sacrifice were bad men,
or men with bad sickness, {468} and they were all slaves.[248] In Fiji
the victims were generally prisoners of war, but sometimes they were
slaves procured by purchase from other tribes.[249] In Nukahiva "the
custom of the country requires that the men destined for sacrifice
should belong to some neighbouring nation, and accordingly they are
generally stolen."[250] In Tahiti "the unhappy wretches selected were
either captives taken in war, or individuals who had rendered
themselves obnoxious to the chiefs or the priests.**"[251] The Muruts
of Borneo "never sacrifice one of their own people, but either capture
an individual of a hostile tribe, or send to a friendly tribe to
purchase a slave for the purpose."[252] It is said to be contrary to
the Káyán custom to sell or sacrifice one of their own nation.[253]
The G[=a]ro hill tribes "generally select their victims out of the
Bengali villages in the plains."[254] The Kandhs considered that the
victim must be a stranger. "If we spill our own blood," they said, "we
shall have no descendants";[255] and even the children of Meriahs, who
were reared for sacrificial purposes, were never offered up in the
village of their birth.[256]
[Footnote 238: Grimm, _Teutonic Mythology_, i. 45.]
[Footnote 239: Holtzmann, _Deutsche Mythologie_, p. 232.]
[Footnote 240: Cæsar, _De bello gallico_, vi. 16.]
[Footnote 241: Diodorus Siculus, xx. 14.]
[Footnote 242: Clavigero, _op. cit._ i. 282.]
[Footnote 243: Bancroft, _op. cit._ ii. 704.]
[Footnote 244: Stoll, _op. cit._ p. 40.]
[Footnote 245: Bry, _op. cit._ p. 11.]
[Footnote 246: Garcilasso de la Vega, _op. cit._ i. 50.]
[Footnote 247: Ellis, _Tshi-speaking Peoples_, p. 170.]
[Footnote 248: Ling Roth, _Great Benin_, p. 70.]
[Footnote 249: Hale, _U.S. Exploring Expedition. Vol. VI. Ethnography
and Philology_, p. 57. _Cf._ Wilkes, _op. cit._ iii. 97.]
[Footnote 250: Lisiansky, _op. cit._ p. 81 _sq._]
[Footnote 251: Ellis, _Polynesian Researches_, i. 346.]
[Footnote 252: Denison, quoted by Ling Roth, _Natives of Sarawak_,
ii. 216.]
[Footnote 253: Burns, in _Jour. of Indian Archipelago_, iii. 145.]
[Footnote 254: Godwin-Austen, in _Jour. Anthr. Inst._ ii. 394.]
[Footnote 255: Macpherson, _Memorials of Service in India_, p. 121.]
[Footnote 256: Campbell, _Wild Tribes of Khondistan_, p. 53.]
We find that various peoples who at a certain period have been
addicted to the practice of human sacrifice, have afterwards, at a
more advanced stage of civilisation, voluntarily given it up. The
cause of this is partly an increase, or expansion, of the sympathetic
sentiment, partly a change of ideas. With the growth of enlightenment
men would lose faith in this childish method of substitution, and
consequently find it not only useless, but objectionable; and any
sentimental disinclination to the practice would by itself, in the
course of time, lead to the belief that the deity no longer cares for
it, or is averse to it. Brahmanism gradually abolished the immolation
of human victims, incompatible as it was with the precept of _ahimsâ_,
or respect for everything that has life; "the liberation of the
victim, or the substitution in its stead and place of a {469} figure
made of flour paste, both of which were at first matter of sufferance,
became at length matter of requirement."[257] According to the
Mahabharata, the priest who performs a human sacrifice is cast into
hell.[258] In Greece, in the historic age, the practice was held in
horror at least by all the better minds, though it was regarded as
necessary on certain occasions.[259] It was strongly condemned by
enlightened Romans. Cicero speaks of it as a "monstrous and barbarous
practice" still disgracing Gaul in his day;[260] and Pliny, referring
to the steps taken by Tiberius to stop it, declares it impossible to
estimate the debt of the world to the Romans for their efforts to put
it down.[261]
[Footnote 257: Barth, _Religions of India_, p. 97.]
[Footnote 258: _Supra_, p. 458.]
[Footnote 259: Stengel, _op. cit._ p. 117. _Cf._ Donaldson, _loc.
cit._ p. 464.]
[Footnote 260: Cicero, _Pro Fonteio_, 10 (21).]
[Footnote 261: Pliny, _Historia naturalis_, xxx. 4 (1).]
The growing reluctance to offer human sacrifice led to various
practices intended to replace it.[262] Speaking of the Italian custom
of dedicating as a sacrifice to the gods every creature that should be
born in the following spring, Festus adds that, since it seemed cruel
to kill innocent boys and girls, they were kept till they had grown
up, then veiled and driven beyond the boundaries.[263] Among various
peoples human effigies or animals were offered instead of
men.
[Footnote 262: _Cf._ Krause, 'Die Ablösung der Menschenopfer,' in
_Kosmos_, 1878, iii. 76 _sqq._]
[Footnote 263: Festus, _op. cit._ 'Ver sacrum,' p. 379.]
Among the Malays of the Malay Peninsula dough models of human
beings, actually called "the substitutes," are offered up to the
spirits on the sacrificial trays; and in the same sense are the
directions of magicians, that "if the spirit craves a human victim a
cock may be substituted."[264] We are told that, in Egypt, King Amosis
ordered three waxen images to be burned in the temple of Heliopolis in
lieu of the three men who in earlier times used to be sacrificed
there.[265] The Romans offered dolls;[266] and in old Hindu families
belonging to the sect of the Vámácháris a practice still obtains of
sacrificing an effigy {470} instead of a living man.[267] In India,
Greece, and Rome, animals, also, were substituted for human
victims.[268] Of a similar substitution there is probably a trace in
the Biblical story of Isaac being exchanged for a ram, and in the
paschal sacrifice.[269] On the Gold Coast the human victim who was
formerly sacrificed to the god of the Prah is nowadays replaced by a
bullock which is specially reserved and fattened for the
purpose.[270]
[Footnote 264: Skeat, _Malay Magic_, p. 72.]
[Footnote 265: Porphyry, _op. cit._ ii. 55.]
[Footnote 266: Leist, _Græco-italische Rechtsgeschichte_, p. 272 _sqq._]
[Footnote 267: Rájendralála Mitra, _op. cit._ ii. 109 _sq._]
[Footnote 268: Leist, _Græco-italische Rechtsgeschichte_, p. 267
_sqq._ Frazer, _Golden Bough_, ii. 38, n. 2. Pausanias, ix. 8. 2. For
various modifications of human sacrifice in India, see Wilson,
_Works_, ii. 267 _sq._; Crooke, _Popular Religion of Northern India_,
ii. 175 _sq._]
[Footnote 269: See _supra_, p. 458.]
[Footnote 270: Ellis, _Tshi-speaking Peoples_, p. 66.]
In other cases human sacrifices have been succeeded by practices
involving the effusion of human blood without loss of life. We are
told that, in Laconia, Lycurgus established the scourging of lads at
the altar of Artemis Orthia, in place of the sacrifice of men, which
had previously been offered to her;[271] and Euripides represents
Athena as ordaining that, when the people celebrate the festival of
Artemis the Taurian goddess, the priest, to compensate her for the
sacrifice of Orestes, "must hold his knife to a human throat, and
blood must flow to satisfy the sacred claims of the goddess, that she
may have her honours."[272] There are also many instances of bleeding
or mutilation practised for the same purpose as human sacrifice,
probably according to the principle of _pars pro toto_, though it is
impossible to decide whether they really are survivals of an earlier
sacrifice.
[Footnote 271: Pausanias, ix. 16. 10.]
[Footnote 272: Euripides, _Iphigenia in Tauris_, 1458 _sqq._]
Besides the ceremony of _nawgia_, already described,[273] the Tonga
Islanders had another ceremony called _tootoo-nima_, or cutting off a
portion of the little finger, as a sacrifice to the gods, for the
recovery of a superior relation who was ill; and so commonly was this
done that, in Mariner's days, there was scarcely a person living in
the Tonga Islands who had not lost one or both little fingers, or at
least a considerable portion of them.[274] In Chinese literature there
are frequently mentioned instances of persons cutting off flesh from
their bodies to cure parents or paternal grandparents dangerously ill.
In most cases {471} it remains unmentioned how the flesh was prepared;
but it is sometimes stated that porridge or broth was made of it, or
that it was mixed with medicine. Dr. de Groot maintains that it was in
the first place the ascription of therapeutic virtues to parts of the
human body that prompted such filial self-mutilation. But he adds that
"often also we read of thigh-cutters invoking Heaven beforehand,
solemnly asking this highest power to accept their own bodies as a
substitute for the patients' lives they wanted to save; their
mutilation thus assuming the character of self-immolation."[275]
According to the testimony of a native writer, there is scarcely a
respectable house in all Bengal, the mistress of which has not at one
time or other shed her blood, under the notion of satisfying the
goddess Chandiká by the operation. "Whenever her husband or a son is
dangerously ill, a vow is made that on the recovery of the patient,
the goddess would be regaled with human blood. . . . The lady performs
certain ceremonies, and then bares her breast in the presence of the
goddess, and with a nail-cutter (_naruna_) draws a few drops of blood
from between her breasts and offers them to the divinity."[276]
Garcilasso de la Vega states that, whilst some of the Peruvian Indians
before the time of the Incas sacrificed men, there were others who,
though they mixed human blood in their sacrifices, did not obtain it
by killing anyone, but by bleeding the arms and legs, according to the
importance of the sacrifice, and, in the most solemn cases, by
bleeding the root of the nose where it is joined by the
eyebrows.[277]
[Footnote 273: _Supra_, p. 455.]
[Footnote 274: Mariner, _op. cit._ ii. 222.]
[Footnote 275: de Groot, _Religious System of China_, (vol, iv. book)
ii. 386 _sq._]
[Footnote 276: Rájendralála Mitra, _op. cit._ i. 111 _sq._]
[Footnote 277: Garcilasso de la Vega, _op. cit._ i. 52.]
There is one form of human sacrifice which has outlived all others,
namely, the penal sacrifice of offenders. There can be no moral
scruples in regard to a rite which involves a punishment regarded as
just. Indeed, this kind of human sacrifice is even found where the
offering of animals or lifeless things has fallen out of use or become
a mere symbol. For this is the only sacrifice which is intended to
propitiate the deity by the mere death of the victim; and gods are
believed to be capable of feeling anger and revenge long after they
have ceased to have material needs. The last trace of human sacrifice
has {472} disappeared only when men no longer punish offenders
capitally with a view to appeasing resentful gods.
* * * * *
Human beings are sacrificed not only to gods, but to dead men, in
order to serve them as companions or servants, or to vivify their
spirits, or to gratify their craving for revenge.
From various quarters of the world we hear of the immolation of men
for the service of the dead, the victims generally being slaves,
wives, or captives of war, or, sometimes, friends.[278] This rite
occurs or has occurred, more or less extensively, in Borneo[279] and
the Philippine Islands,[280] in Melanesia and Polynesia,[281] in many
different parts of Africa,[282] and among some American tribes.[283]
In America, however, it was carried to its height by the more
civilised nations of Central America and Mexico, Bogota and Peru.[284]
There is evidence to show that the funeral ceremonies {473} of the
ancient Egyptians occasionally included human sacrifice at the gate of
the tomb, although the practice would seem to have been exceptional,
at any rate after Egypt had entered upon her period of greatness.[285]
It has been suggested that in China the burial of living persons with
the dead dates from the darkest mist of ages, and that the cases on
record in the native books are of relatively modern date only because
in high antiquity the custom was so common, that it did not occur to
the annalists and chroniclers to set down such everyday matters as
anything remarkable.[286] In the fourteenth century of our era, the
funeral sacrifice of men was abolished, even for emperors and members
of the imperial family,[287] but it has assumed a modified shape under
which it still maintains itself in China. "Daughters, daughters-in-law,
and widows especially imbued with the doctrine that they are the
property of their dead parents, parents-in-law, and husbands, and
accordingly owe them the highest degree of submissive devotion, often
take their lives, in order to follow them into the next world." And
though it has been enacted that no official distinctions shall be
awarded to such suttees, whereas honours are granted to widowed wives,
concubines, and brides who, instead of destroying themselves, simply
abjure matrimonial life for good, sutteeism of widows and brides still
meets with the same applause as ever, and many a woman is no doubt
prevailed upon, or even compelled, by her own relations, to become a
suttee.[288] Professor Schrader observes that "it is no longer
possible to doubt that ancient Indo-Germanic custom ordained that the
wife should die with her husband."[289] It has been argued, it is
true, that the burning of widows begins rather late in India;[290]
yet, though the modern ordinance of suttee-burning be a corrupt
departure {474} from the early Brahmanic ritual, the practice seems to
be, not a new invention by the later Hindu priesthood, but the revival
of an ancient rite belonging originally to a period even earlier than
the Veda.[291] In the Vedic ritual there are ceremonies which
obviously indicate the previous existence of such a rite.[292] From
Greece we have the instances of Evadne throwing herself into the
funeral pile of her husband,[293] and of the suicide of the three
Messenian widows mentioned by Pausanias.[294] Sacrifice of widows
occurred, as it seems as a regular custom, among the Scandinavians,[295]
Heruli,[296] and Slavonians.[297] "The fact," says Mr. Ralston, "that,
in Slavonic lands, a thousand years ago, widows used to destroy
themselves in order to accompany their dead husbands to the world of
spirits, seems to rest on incontestable evidence"; and if the dead was
a man of means and distinction, he was also solaced by the sacrifice
of his slaves.[298] Funeral offerings of slaves occurred among the
Teutons[299] and the Gauls of Cæsar's time;[300] and in the Iliad we
read of twelve captives being laid on the funeral pile of
Patroclus.[301]
[Footnote 278: See Tylor, _Primitive Culture_, i. 458 _sqq._; Spencer,
_Principles of Sociology_, i. 203 _sqq._; Liebrecht, _Zur Volkskunde_,
p. 380 _sq._; Schneider, _Naturvölker_, i. 202 _sqq._; Hehn, _op.
cit._ p. 416 _sqq._; Westermarck, _History of Human Marriage_, p. 125
_sq._; Frazer, _Pausanias_, iii. 199 _sq._]
[Footnote 279: Brooke, _Ten Years in Saráwak_, i. 74. Hose and
McDougall, 'Relations between Men and Animals in Sarawak,' in _Jour.
Anthr. Inst._ xxxi. 207 _sq._ Bock, _Head-Hunters of Borneo_, pp. 210
n., 219 _sq._]
[Footnote 280: Blumentritt, 'Der Ahnencultus und die religiösen
Anschauungen der Malaien des Philippinen Archipels,' in _Mittheilungen
d. Geograph. Gesellsch. in Wien_, xxv. 152 _sq._]
[Footnote 281: Westermarck, _op. cit._ p. 125 _sq._ Brenchley, _op.
cit._ p. 208 (natives of Tana). Williams and Calvert, _op. cit._ p.
161 _sq._ (Fijians). Lisiansky, _op. cit._ p. 81 (Nukahivans).
Mariner, _op. cit._ ii. 220 _sq._ (Tonga Islanders). Taylor, _Te Ika a
Maui_, p. 218 (Maoris). von Kotzebue, _op. cit._ iii. 247 (Sandwich
Islanders).]
[Footnote 282: Rowley, _Africa Unveiled_, p. 127. _Idem_, _Religion of
the Africans_, p. 102 _sq._ Schneider, _Religion der afrikanischen
Naturvölker_, p. 118 _sqq._ Westermarck, _op. cit._ p. 125. Ramseyer
and Kühne, _Four Years in Ashantee_, p. 50. Mockler-Ferryman, _British
Nigeria_, pp. 235, 259 _sqq._ Burton, _Mission to Gelele_, ii. 19
_sqq._ (Dahomans). _Idem_, _Abeokuta_, i. 220 _sq._ _Idem_, _Lake
Regions of Central Africa_, i. 124 (Wadoe); ii. 25 _sq._ (Wanyamwezi).
Wilson, _Western Africa_, pp. 203, 219. Ellis, _Tshi-speaking Peoples
of the Gold Coast_, p. 159 _sqq._ _Idem_, _E[(w]e-speaking Peoples of
the Slave Coast_, pp. 117, 118, 121 _sqq._ Nachtigal, _Sahara und
Sudan_, ii. 687 (Somraï and Njillem). Baker, _Ismaïlia_, p. 317 _sq._
(Wanyoro). Casati, _Ten Years in Equatoria_, i. 170 (Mambettu).
Callaway, _Religious System of the Amazulu_, p. 212 _sq._]
[Footnote 283: Spencer, _Principles of Sociology_, i. 204. Dorman,
_op. cit._ p. 210 _sqq._ Westermarck, _op. cit._ p. 125. Macfie,
_Vancouver Island and British Columbia_, p. 448. Charlevoix, _Voyage
to North America_, ii. 196 _sq._ (Natchez). Rochefort, _Histoire
naturelle et morale des Iles Antilles_, p. 568 _sq._ (Caribs).]
[Footnote 284: Tylor, _Primitive Culture_, i. 461. Spencer,
_Principles of Sociology_, i. 205. Dorman, _op. cit._ p. 212 _sqq._
Acosta, _op. cit._ ii. 313, 314, 344 (Peruvians).]
[Footnote 285: Wiedemann, _Ancient Egyptian Doctrine of the
Immortality of the Soul_, p. 62 n.]
[Footnote 286: de Groot, _op. cit._ (vol. ii. book) i. 721.]
[Footnote 287: _Ibid._ (vol. ii. book) i. 724.]
[Footnote 288: _Ibid._ (vol. ii. book) i. 735, 754, 748.]
[Footnote 289: Schrader, _Prehistoric Antiquities of the Aryan
Peoples_, p. 391.]
[Footnote 290: Hopkins, _op. cit._ p. 274.]
[Footnote 291: Tylor, _Primitive Culture_, i. 465 _sqq._ Zimmer,
_Altindisches Leben_, p. 331.]
[Footnote 292: _Rig-Veda_, x. 18. 8 _sq._ Macdonell, _Vedic
Mythology_, p. 165. Hillebrandt, 'Eine Miscelle aus dem Vedaritual,'
in _Zeitschr. d. Deutschen Morgenländ. Gesellsch._ xl. 711. Oldenberg,
_Religion des Veda_, p. 587.]
[Footnote 293: Euripides, _Supplices_, 1000 _sqq._]
[Footnote 294: Pausanias, iv. 2. 7.]
[Footnote 295: Grimm, _Deutsche Rechtsalterthümer_, p. 451.]
[Footnote 296: Procopius, _op. cit._ ii. 14.]
[Footnote 297: Dithmar of Merseburg, _Chronicon_, viii. 2 (Pertz,
_Monumenta Germaniæ historica_, v. 861). Zimmer, _op. cit._ p. 330.]
[Footnote 298: Ralston, _Songs of the Russian People_, p. 327 _sq._]
[Footnote 299: Grimm, _op. cit._ p. 344.]
[Footnote 300: Cæsar, _De bello gallico_, vi. 19. In the ancient
annals of the Irish there is one trace of human sacrifice being
offered as a funeral rite (Cusack, _History of the Irish Nation_,
p. 115 n.*).]
[Footnote 301: _Iliad_, xxiii. 175.]
According to early notions, men require wives and servants not only
during their life-time, but after their death. The surviving relatives
want to satisfy their needs, out of affection or from fear of
withholding from the dead what belongs to them--their wives and their
slaves. The destruction of innocent life seems justified by the low
social standing of the victims and their subjection to their husbands
or masters. However, with advancing civilisation this sacrifice has a
tendency to {475} disappear, partly, perhaps, on account of a change
of ideas as regards the state after death, but chiefly, I presume,
because it becomes revolting to public feelings. It then dwindles into
a survival. As a probable instance of this may be mentioned a custom
prevalent among the Tacullies of North America: the widow is compelled
by the kinsfolk of the deceased to lie on the funeral pile where the
body of her husband is placed, whilst the fire is lighting, until the
heat becomes intolerable.[302] In ancient Egypt little images of clay,
or wood, or stone, or bronze, made in human likeness and inscribed
with a certain formula, were placed within the tomb, presumably in the
hopes that they would there attain to life and become the useful
servants of the dead.[303] So also the Japanese[304] and Chinese,
already in early times, placed images in, or at, the tombs of their
dead as substitutes for human victims; and these images have always
been considered to have no less virtual existence in the next world
than living servitors, wives, or concubines. In China the original
immolations were, moreover, replaced by the custom of allowing the
nearest relatives and slaves of the deceased simply to settle on the
tomb, instead of entering it, there to sacrifice to the manes, and by
prohibiting widows from remarrying.[305]
[Footnote 302: Wilkes, _U.S. Exploring Expedition_, iv. 453.]
[Footnote 303: Wiedemann, _Ancient Egyptian Doctrine of the
Immortality of the Soul_, p. 63.]
[Footnote 304: Tylor, _Primitive Culture_, i. 463.]
[Footnote 305: de Groot, _op. cit._ (vol. ii. book) i. 794 _sqq._]
The practice of sacrificing human beings to the dead is not
exclusively based on the idea that they require servants and
companions. It is extremely probable that the funeral sacrifice of men
and animals in many cases involves an intention to vivify the spirits
of the deceased with the warm, red sap of life.[306] This seems to be
the meaning of the Dahoman custom of pouring blood over the graves of
the ancestors of the king.[307] So, also, in Ashanti "human sacrifices
are frequent and ordinary, to {476} water the graves of the
Kings."[308] In the German folk-tale known under the name of 'Faithful
John,' the statue said to the King, "If you, with your own hand, cut
off the heads of both your children, and sprinkle me with their blood,
I shall be brought to life again."[309] According to primitive ideas,
blood is life; to receive blood is to receive life; the soul of the
dead wants to live, and consequently loves blood. The shades in Hades
are eager to drink the blood of Odysseus' sacrifice, that their life
may be renewed for a time.[310] And it is all the more important that
the soul should get what it desires as it otherwise may come and
attack the living. The belief that the bloodless shades leave their
graves at night and seek renewed life by drawing the blood of the
living, is prevalent in many parts of the world.[311] As late as the
eighteenth century this belief caused an epidemic of fear in Hungary,
resulting in a general disinterment, and the burning or staking of the
suspected bodies.[312] It is also possible that the mutilations and
self-bleedings which accompany funerals are partly practised for the
purpose of refreshing the departed soul.[313] The Samoans called it
"an offering of blood" for the dead when the mourners beat their heads
with stones till the blood ran.[314]
[Footnote 306: _Cf._ Spencer, _Principles of Sociology_, i. 288 _sq._;
Rockholz, _Deutscher Glaube und Brauch_, i. 55; Sepp, _Völkerbrauch
bei Hochzeit, Geburt und Tod_, p. 154; Trumbull, _Blood Covenant_,
p. 110 _sqq._]
[Footnote 307: Reade, _Savage Africa_, p. 51 _sq._]
[Footnote 308: Bowdich, _Mission from Cape Castle to Ashantee_, p. 289.]
[Footnote 309: Grimm, _Kinder- und Hausmärchen_, p. 29 _sq._]
[Footnote 310: _Odyssey_, xi. 153.]
[Footnote 311: Trumbull, _Blood Covenant_, p. 114 _sq._]
[Footnote 312: Farrer, _Primitive Manners and Customs_, p. 23 _sq._]
[Footnote 313: _Cf._ Spencer, _Principles of Sociology_, i. 181 _sq._]
[Footnote 314: Turner, _Nineteen Years in Polynesia_, p. 227.]
Finally, as offenders are sacrificed to gods in order to appease their
wrath, so manslayers are in many cases killed in order to satisfy
their victims' craving for revenge. In the next chapter we shall see
that the execution of blood-revenge largely falls under the heading of
"human sacrifice for the dead."
CHAPTER XX
BLOOD-REVENGE AND COMPENSATION--THE PUNISHMENT OF DEATH
ACCORDING to early custom, a person who takes the life of another may
himself be killed by the relatives of his victim, or some other member
of his family, clan, or tribe may be killed in his stead.[1] The
custom of blood-revenge is found among a host of existing savages and
barbarians, and has long survived among many peoples who have reached
a higher degree of culture.
[Footnote 1: The collective responsibility usually involved in the
blood-feud has been discussed _supra_, p. 30 _sqq._]
We meet with blood-revenge in the midst of Japanese civilisation, not
as a mere fact, but as a legally permitted custom. The avenger had
only to observe certain prescribed formalities and regulations: there
was a regular official to whom he must announce his resolve, and he
must fix the time within which he would carry it out. The way in which
the enemy was killed was of no importance, except that, even in
ancient times, the man who had recourse to assassination was
reprehensible.[2] Among the Hebrews blood-revenge continued to exist
during the periods of the Judges and Kings, and even later; under the
Old Kingdom, says Wellhausen, "the administration of justice was at
best but a scanty supplement to the practice of self-help."[3] It is a
rule among {478} all the Arabs that whoever sheds the blood of a man
owes blood on that account to the family of the slain person.[4] Says
the Koran:--"O ye who believe! Retaliation is prescribed for you for
the slain."[5] In ancient Eran blood-revenge survived the
establishment of tribunals.[6] There is evidence left of its
prevalence in early times among the Aryan population of India, though
no mention is made in the Sûtras of blood revenge as an existing
custom.[7] Among the Greeks it was only in the post-Homeric age that
it was given up as a fundamental principle, the avenger being
transformed into an accuser.[8] In Gaul and Ireland, though justice
was administered by Druids or Brehons, their judgments seem to have
been merely awards founded upon a submission to arbitration, the
injured person being at liberty to take the law into his own hands and
redress himself.[9] In the preface to the Senchus Mór we read that
retaliation prevailed in Erin before Patrick, and that Patrick brought
forgiveness with him.[10] Among the clans of Scotland, as is well
known, the blood-feud has existed up to quite modern times; in the
Catholic period even the Church recognised its power by leaving the
right hand of male children unchristened, that it might deal the more
unhallowed and deadly a blow to the enemy.[11] In England it was at
least theoretically possible down to the middle of the tenth century
for a manslayer to elect to bear the feud of the kindred of the slain,
instead of paying the _wer_;[12] and long after the Conquest we still
meet with a law against the system of {479} private revenge.[13] In
Frisland, Lower Saxony, and parts of Switzerland, the blood-feud was
practised as late as the sixteenth century.[14] In Italy it prevailed
extensively, even among the upper classes, in the sixteenth and
seventeenth centuries.[15] In Corsica,[16] Albania,[17] and
Montenegro,[18] it exists even to this day.
[Footnote 2: Rein, _Japan_, p. 326. Dautremer, 'The Vendetta or Legal
Revenge in Japan,' in _Trans. Asiatic Soc. Japan_, xiii. 84 _sq._]
[Footnote 3: Wellhausen, _Prolegomena to the History of Israel_, p. 467.]
[Footnote 4: Burckhardt, _Notes on the Bedouins and Wahábys_, p. 85.]
[Footnote 5: _Koran_, ii. 173. _Cf._ _ibid._ xvii. 35.]
[Footnote 6: Geiger, _Civilization of the Eastern Ir[=a]nians_,
ii. 31 _sqq._]
[Footnote 7: Leist, _Alt-arisches Jus Gentium_, p. 422.]
[Footnote 8: _Idem_, _Græco-italische Rechtsgeschichte_, § 50 _sq._,
especially pp. 375, 381. In Rome blood-revenge appears to have been
very early suppressed. There is an echo of it in certain legends, but
even in them it is represented as objectionable (Mommsen, _History of
Rome_, i. 190).]
[Footnote 9: Maine, _Early History of Institutions_, lect. ii.
d'Arbois de Jubainville, 'Des attributions judiciaires de l'autorité
publique chez les Celtes,' in _Revue Celtique_, vii. 5. _Ancient Laws
of Ireland_, iii. p. lxxxix.]
[Footnote 10: Skene, _Celtic Scotland_, iii. 152.]
[Footnote 11: Mackintosh, _History of Civilisation in Scotland_,
ii. 279.]
[Footnote 12: Pollock and Maitland, _History of English Law before the
Time of Edward I._ i. 48.]
[Footnote 13: Cherry, _Growth of Criminal Law in Ancient Communities_,
p. 85.]
[Footnote 14: Günther, _Idee der Wiedervergeltung_, i. 207 _sq._
Frauenstädt, _Blutrache und Todtschlagsühne im Deutschen Mittelalter_,
p. 21. _Cf._ Arnold, _Deutsche Urzeit_, p. 342.]
[Footnote 15: Simonde de Sismondi, _Histoire des républiques
italiennes du moyen âge_, xvi. 456.]
[Footnote 16: Gregorovius, _Wanderings in Corsica_, i. 176 _sqq._]
[Footnote 17: Gop[vc]evi['c], _Oberalbanien und seine Liga_, p. 322
_sqq._]
[Footnote 18: Kohl, _Reise nach Istrien_, i. 406 _sqq._ Popovi['c],
_Recht und Gericht in Montenegro_, p. 69.]
Blood-revenge is regarded not only as a right, but as a duty. We are
told that the holiest duty a West Australian native is called on to
perform is that of avenging the death of his nearest relation. "Until
he has fulfilled this task, he is constantly taunted by the old women;
his wives, if he be married, would soon quit him; if he is unmarried,
not a single young woman would speak to him; his mother would
constantly cry, and lament she should ever have given birth to so
degenerate a son; his father would treat him with contempt, and
reproaches would constantly be sounded in his ear."[19] Among the
tribes of Western Victoria "a man would consider it his bounden duty
to kill his most intimate friend for the purpose of avenging a
brother's death, and would do so without the slightest hesitation."[20]
In his description of the Eskimo about Behring Strait, Mr. Nelson
states that blood-revenge is considered a sacred duty among all the
Eskimo, a duty incumbent on the nearest male relative; if the son of
the murdered man is an infant, it rests with him to seek revenge as
soon as he attains puberty.[21] Among the Dacotahs "no one can escape
this law of retaliation; public opinion would brand with disgrace
whoever fled under such circumstances."[22] The Brazilian aborigines
{480} consider it a moral obligation, a matter of conscience, for a
son, a brother, or a nephew, to avenge the death of his relative.[23]
Speaking of the Guiana Indians, Sir E. F. Im Thurn observes that, "in
all primitive societies where there are no written laws and no supreme
authority to enforce justice, such vengeance has been held as a sacred
duty."[24] Confucius affirmed, in the strongest and most unrestricted
terms, the duty of avenging the murder of a father or a brother.[25]
In Japan "the man who was weak enough not to try to put to death the
murderer of his father or his lord, was obliged to flee into hiding;
from that day, he was despised by his own companions."[26] The Lord
said to Moses:--"The revenger of blood himself shall slay the
murderer; when he meeteth him, he shall slay him."[27] A similar rule,
as we have seen, is laid down in the Koran.[28] The idea that
blood-revenge is a sacred duty incumbent on the kindred of the
deceased was probably held by all so-called Aryan peoples.[29] It
still prevails in Albania,[30] Montenegro,[31] and Corsica. "Not to
take revenge is considered by the genuine Corsicans as degrading. . . .
Any one who shrinks from avenging himself . . . is allowed no rest
by his relations, and all his acquaintances upbraid him with
pusillanimity."[32]
[Footnote 19: Grey, _Journals of Expeditions of Discovery in
North-West and Western Australia_, ii. 240.]
[Footnote 20: Dawson, _Australian Aborigines_, p. 71.]
[Footnote 21: Nelson, 'Eskimo about Bering Strait,' in _Ann. Rep. Bur.
Ethn._ xviii. p. 292 _sq._]
[Footnote 22: Domenech, _Seven Years' Residence in the Great Deserts
of North America_, ii. 338.]
[Footnote 23: von Martius, _Beiträge zur Ethnographie Amerika's_,
i. 128.]
[Footnote 24: Im Thurn, _Among the Indians of Guiana_, p. 329 _sq._]
[Footnote 25: Legge, _Chinese Classics_, i. 111. Douglas,
_Confucianism and Taouism_, p. 145.]
[Footnote 26: Dautremer, _loc. cit._ p. 83. _Cf._ Griffis, _Corea_, p.
227 (Coreans).]
[Footnote 27: _Numbers_, xxxv. 19.]
[Footnote 28: For modern Arabs, see Burckhardt, _Notes on the Bedouins
and Wahábys_, p. 313 _sq._; Blunt, _Bedouin Tribes of the Euphrates_,
ii. 207.]
[Footnote 29: Geiger, _op. cit._ ii. 32 (Avesta people). Leist,
_Alt-arisches Jus Gentium_, p. 422. _Idem_, _Græco-italische
Rechtsgeschichte_, p. 323 _sqq._ de Valroger, _op. cit._ p. 472
(Celts). Nordström, _Bidrag till den svenska samhälls-författningens
historia_, ii. 229; Stemann, _Den Danske Retshistorie indtil Christian
V.'s Lov_, p. 574; Keyser, _Efterladte Skrifter_, ii. pt. ii. 95;
Rosenberg, _Nordboernes Aandsliv_, i. 487 (Teutons). Miklosich, 'Die
Blutrache bei den Slaven,' in _Denkschriften der kaiserl. Akademie d.
Wissensch. Philos. histor. Classe_, Vienna, xxxvi. 127 _sqq._ Ewers,
_Das alteste Recht der Russen_, p. 50 _sq._]
[Footnote 30: Hahn, _Albanesische Studien_, i. 176.]
[Footnote 31: Popovi['c], _op. cit._ p. 69. Kohl, _op. cit._ i. 409,
413 _sqq._ Miklosich, _loc. cit._ p. 145.]
[Footnote 32: Gregorovius, _op. cit._ i. 180 _sq._ For other instances
of blood-revenge as a duty, see Boas, 'Central Eskimo,' _Ann. Rep.
Bur. Ethn._ vi. 582; Petroff, 'Report on Alaska,' in _Tenth Census of
the United States_, p. 158 (Atkha Aleuts); Kohler, in _Zeitschr. f.
vergl. Rechtswiss._ vii. 376 (Papuans of New Guinea); Modigliani,
_Viaggio a Nías_, p. 471; Bowring, _Visit to the Philippine Islands_,
p. 177; Macpherson, _Memorials of Service in India_, p. 82 (Kandhs);
Radde, _Die Chews'uren_, p. 115; von Haxthausen, _Transcaucasia_, p.
406 _sqq._ (Ossetes); Munzinger, _Die Sitten und das Recht der Bogos_,
p. 87; Mungo Park, _Travels in the Interior of Africa_, p. 13 (Feloops
bordering on the Gambia); Leuschner, in Steinmetz, _Rechtsverhältnisse
von eingeborenen Völkern in Afrika und Ozeanien_, p. 23 (Bakwiri);
_ibid._ p. 49 (Banaka and Bapuku); Nicole, _ibid._ p. 132
(Diakité-Sarrakolese); Lang, _ibid._ p. 256 _sq._ (Washambala); Kraft,
_ibid._ p. 292 (Wapokomo); Viehe, _ibid._ p. 311 (Ovaherero);
Rautanen, _ibid._ p. 341 (Ondonga); Sorge, _ibid._ p. 418 (Nissan
Islanders in the Bismarck Archipelago).]
{481} The duty of blood-revenge is, in the first place, regarded as a
duty to the dead, not merely because he has been deprived of his
highest good, his life, but because his spirit is believed to find no
rest after death until the injury has been avenged.[33] The
disembodied soul carries into its new existence an eager longing for
revenge, and, till the crime has been duly expiated, hovers about the
earth, molesting the manslayer or trying to compel its own relatives
to take vengeance on him.
[Footnote 33: See Kohler, _Shakespeare vor dem Forum der
Jurisprudenz_, p. 131 _sq._; Steinmetz, _Ethnol. Studien zur ersten
Entwicklung der Strafe_, i. 291 _sqq._; _Idem_, _Rechtsverhältnisse_,
p. 49 (Banaka and Bapuku); Nicole, _ibid._ p. 132 (Diakité-Sarrakolese);
Lang, _ibid._ p. 257 (Washambala).]
According to Yakut beliefs, a person who is murdered becomes a
_yor_, that is, his ghost never comes to rest.[34] The Cheremises
imagine that the spirits of persons who have died a violent death
cause illness, especially fever and ague.[35] The Saoras of India seem
to have most fear of the spirits of those who have died violent
deaths.[36] The Burmese believe that persons who meet a violent death
become "nats "and haunt the place where they were killed.[37] The
Hudson Bay Eskimo regard the island of Akpatok as tabooed since the
murder of part of the crew of a wrecked vessel, who camped on that
island; "not a soul visits that locality lest the ghosts of the
victims should appear and supplicate relief from the natives, who have
not the proper offerings to make to appease them."[38] The Omahas
believe that the spirits of those who have been killed reappear after
death, their errand being "to solicit vengeance on the perpetrators of
the deed."[39] According to Genesis, the voice of {482} blood shed
cried for vengeance until the murderer was punished.[40] A similar
notion prevailed among the Bedouins, hence they thought they might
escape the taking of revenge by covering up the blood with earth.[41]
One of the most popular ghost stories in folk-tales is that which
treats of the ghost of a murdered person flitting about the haunts of
the living with no gratification but to terrify them.[42] According to
Rohde, this belief was in full force at Athens in the fifth and fourth
centuries before Christ.[43] Aeschylus attributes an Erinys to the
heinous crime of a man's neglecting his duty as avenger of
blood[44]--in other words, the soul of the slain turned its anger
against the neglectful relative. Traces of the same belief still
survive in various parts of Europe.[45] In Wärend, in Sweden, the
people maintain that the unsatisfied ghost of a murdered man visits
his relatives at night, and disturbs their rest; and it was an ancient
custom among them that, if the murderer was not known, the nearest
relation of the dead, before the knell began, went forward to the
corpse and asked the dead himself to avenge his murder.[46]
[Footnote 34: Sumner, in _Jour. Anthr. Inst._ xxxi. 101.]
[Footnote 35: Abercromby, _Pre- and Proto-historic Finns_, i. 168 _sq._]
[Footnote 36: Fawcett, in _Jour. Anthrop. Soc. Bombay_, i. 59.]
[Footnote 37: Schway Yoe, _The Burman_, i. 286.]
[Footnote 38: Turner, 'Ethnology of the Ungava District,' in _Ann.
Rep. Bur. Ethn._ xi. 186.]
[Footnote 39: James, _Expedition from Pittsburgh to the Rocky
Mountains_, i. 267.]
[Footnote 40: _Genesis_, iv. 10.]
[Footnote 41: Jacob, _Leben der vorislâmischen Beduinen_, p. 146.
_Cf._ Schwally, _Leben nach dem Tode_, p. 52 _sq._]
[Footnote 42: See Dyer, _The Ghost World_, p. 65 _sqq._; Andree,
_Ethnographische Parallelen_, p. 80 _sqq._]
[Footnote 43: Rohde, _Psyche_, p. 240. _Cf._ _Idem_, 'Paralipomena,'
in _Rheinisches Museum für Philologie_, 1895, p. 19 _sq._; Schmidt,
_Ethik der alten Griechen_, ii. 125 _sqq._]
[Footnote 44: Aeschylus, _Choephori_, 283 _sqq._ _Cf._ _ibid._ 400
_sqq._; Plato, _Leges_, ix. 866.]
[Footnote 45: Dyer, _op. cit._ p. 68 _sqq._ Thorpe, _Northern
Mythology_, ii. 19 _sq._]
[Footnote 46: Hyltén-Cavallius, _Wärend och Wirdarne_, ii. 274; i. 473.]
From one point of view, blood-revenge is thus a form of human
sacrifice. Sometimes it even formally bears a strong resemblance to
certain other human sacrifices which are offered to the dead. Among
some Queensland tribes, when the assassin has been caught red-handed,
the slayer and slain are buried together in the same grave;[47] and
among the ancient Teutons the avenger by preference slew the culprit
at the feet of the murdered man, or at his tomb.[48] Blood-revenge
also resembles other kinds of human sacrifice so far that it serves as
a safeguard for the sacrificer--in this case the avenger, who would
otherwise expose himself to the persecutions of the revengeful spirit
of the dead.
[Footnote 47: Roth, _Ethnological Studies among the North-West-Central
Queensland Aborigines_, p. 165.]
[Footnote 48: Wilda, _Strafrecht der Germanen_, pp. 170, 692.]
But the practice of blood-revenge is not exclusively {483} based on a
desire to avenge the injury done to a fellow-creature and to gratify
the angry passion of his soul. The act which caused his death is at
the same time an injury inflicted upon the survivors. Hence, in many
cases, a murder committed within the family or kin is left
unavenged.[49] Among the Iroquois, says Loskiel, any one who has
murdered his own relative escapes without much difficulty, since the
family, who alone have a right to take revenge, do not choose to
weaken their influence by depriving themselves of another member
besides the one whom they have already lost.[50] Again, when the
murderer belongs to an extraneous family, the injury inflicted on the
relatives of the murdered man suggests not only revenge, but reparation.
[Footnote 49: Steinmetz, _Ethnologische Studien zur ersten Entwicklung
der Strafe_, ii. 159 _sqq._ Mauss, 'La religion et les origines du
droit pénal,' in _Revue de l'histoire des religions_, xxxv. 44.
Kovalewsky, 'Les origines du devoir,' in _Revue internationale de
Sociologie_, ii. 86. _Cf._ Seebohm, _Tribal Custom in Anglo-Saxon
Law_, pp. 30, 42 (Welsh); Robertson Smith, _Religion of the Semites_,
p. 420; _Idem_, _Marriage and Kinship in early Arabia_, p. 25. Among
the Jbâla of Northern Morocco blood-revenge is taken for the killing
of a cousin, but not for the killing of a brother.]
[Footnote 50: Loskiel, _History of the Mission of the United Brethren
among the Indians in North America_, i. 16.]
The taking of life for life may itself, in a way, serve as
compensation. It seems that, in some cases, the blood of the slain
homicide is supposed to restore, as it were, to the family of his
victim the loss of life which he has caused them.[51] Such an idea
probably underlies a custom which Burckhardt heard existed among the
Hallenga, who draw their origin from Abyssinia. When the slayer has
been seized by the relatives of the deceased, a family feast is
proclaimed, at which the murderer is brought into their midst. While
his throat is then slowly cut with a razor, the blood is caught in a
bowl and handed round amongst the guests, "every one of whom is bound
to drink of it at the moment the victim breathes his last."[52] Among
various Arabic-speaking tribes in Morocco I have met with a practice
which also, possibly, involves a vague idea of restoration. On the
perpetration of his deed the avenger {484} licks off the blood from
the blade of the dagger with which he killed his victim; and in one
instance related to me, he bit off a piece of flesh from the dead body
and sucked its blood.[53] Mr. Trumbull even goes so far as to believe
that, among the Hebrews, the primal idea of the _goel_'s mission was
not to wreak vengeance, but "to restore life for life, or to secure
the adjusted equivalent of a lost life."[54] But it is difficult to
suppose that the exacting of blood-revenge ever could have been looked
upon as an equivalent in the full sense of the term. If the loss of
life is to be compensated some other practice must take its place.
[Footnote 51: _Cf._ Trumbull, _Blood Covenant_, p. 126 _sqq._]
[Footnote 52: Burckhardt, _Travels in Nubia_, p. 356.]
[Footnote 53: _Cf._ Goldziher, in Robertson Smith, _Kinship and
Marriage in Early Arabia_, p. 296 n. 1.]
[Footnote 54: Trumbull, _Blood Covenant_, pp. 260, 263.]
Sometimes the manslayer, instead of being killed, is adopted as a
member of the family of his victim.[55] Among the Kabyles of Algeria,
for instance, a person who has killed another unintentionally, goes to
the parents of the dead and says to them: "If you want to kill me,
kill me, here is my winding-sheet. If not, pardon me, and I shall
henceforth be one of your children." And from this day the manslayer
is considered to belong to the _kharouba_, or _gens_, of the
deceased.[56] Among the Jbâla of Northern Morocco, again, a homicide
sometimes induces the avenger to abstain from his persecutions by
giving him his sister or daughter in marriage; and a similar custom
has been noticed among the Beni Amer[57] and Bogos.[58] In other cases
slaves are given to the relatives of the slain in order to atone for
the guilt;[59] but most commonly the compensation consists of cattle,
money, or other property.
[Footnote 55: See Steinmetz, _Studien_, i. 410 _sqq._, 439 _sqq._;
Kovalewsky, in _Revue Internationale de Sociologie_, ii. 87 _sq._]
[Footnote 56: Hanoteau and Letourneux, _La Kabylie_, iii. 68 _sq._]
[Footnote 57: Munzinger, _Ostafrikanische Studien_, p. 322.]
[Footnote 58: _Idem_, _Die Sitten und das Recht der Bogos_, p. 83.
_Cf._ Kohler, _Nachwort zu Shakespeare vor dem Forum der
Jurisprudenz_, p. 15 _sq._]
[Footnote 59: Squier, 'Archæology and Ethnology of Nicaragua,' in
_Trans. American Ethn. Soc._ iii. pt. i. 129. _Idem_, _Nicaragua_, ii.
345 (ancient Nicaraguans). Macdonald, _Africana_, i. 171 (Eastern
Central Africans).]
By giving presents to the relatives of his victim, the offender not
only repairs the loss which he has inflicted {485} upon them, but also
appeases their wounded feelings.[60] The pleasure of gain tends to
suppress their passion, and the loss and humiliation which the
adversary suffers by the gift exercise a healing influence on their
resentment.[61] Sometimes the present is chiefly intended to serve as
an apology. Among the Iroquois, according to Mr. Morgan, the white
wampum which the murderer sent to the family of his victim and which,
if accepted, for ever wiped out the memory of his deed, "was not in
the nature of a compensation for the life of the deceased, but of a
regretful confession of the crime, with a petition for forgiveness."[62]
Compensation, moreover, has the advantage of saving the injured party
the dangers involved in a blood-feud, the uncertainty of the issue,
and the serious consequences which may result from the accomplished
act of revenge. Whilst the carrying out of the principle of "life for
life" often leads to protracted hostilities between the parties,
compensation has a tendency to bring about a durable peace. For this
reason it is to the interest of society at large to encourage the
latter practice; and this encouragement naturally adds to its attractions.
[Footnote 60: Rée, _Entstehung des Gewissens_, p. 57 _sqq._ Steinmetz,
_Studien_, i. 472 _sq._]
[Footnote 61: _Cf._ Miklosich, _loc. cit._ p. 148; Kohl, _op. cit._ i.
426, 436 (Montenegrines and Albanians).]
[Footnote 62: Morgan, _League of the Iroquois_, pp. 331, 333. _Cf._
Turner, _Samoa_, p. 326 (people of Aneiteum).]
But in spite of its merits, the practice of composition has, in
comparison with blood-revenge, various disadvantages. It is not
equally calculated to satisfy a revengeful mind. It has to contend
with the conservatism of ancient custom. It may be taken as a token of
cowardice or weakness, whereas the blood-feud gives to its perpetrator
an opportunity to display his courage and skill. It may be considered
offensive to the dead kinsman. Finally, if it is to flourish, it
presupposes a certain amount of wealth.[63] {486} The importance of
these difficulties depends on the circumstances in each special case.
Vindictiveness, conservatism, the desire for fighting, and the
estimation in which courage and martial ability are held, are
naturally subject to variations, and so are people's wealth and their
willingness to compensate. The ideas held concerning the spirits of
the departed are likewise variable. The readiness with which
blood-money was accepted among the Greeks of the Homeric age has been
explained by their belief in the disembodied soul's dreamlike
existence in Hades, without strong passions and without the power to
molest the living; whilst the later custom of demanding life for life
has been interpreted as the result of a change of ideas which
attributed much greater activity to the dead.[64] In other cases the
deceased is supposed to be appeased by a mere ceremony, or by a
vicarious sacrifice. The Ossetes believe that he often appears in a
dream to some of his descendants, "tantôt pour exiger de lui la
vengeance, tantôt pour lui permettre, au contraire, de la remplacer
par un simple office des morts . . . . Revêtu d'habits de deuil, les
cheveux épars, l'assassin Ossète vient sur la tombe de celui qu'il a
tué, pour accomplir une cérémonie dont le but avéré est de se
consacrer lui-même à sa victime. Cette cérémonie est connue sous le
nom de _kifaeldicïn_: le meurtrier se livre spontanément au défunt,
qui, en la personne de son descendant, lui pardonne son offense."[65]
In Eastern Central Africa, says Mr. Macdonald, "if one man slay
another, the friends of the deceased are justified in killing the
murderer on the spot. But if they catch him alive they put him in a
slave-stick, till compensation be made by a heavy fine of from four to
twenty slaves. When the fine is paid the life of the murderer is not
demanded, but several of the slaves obtained in compensation are
killed, to accompany the deceased."[66] In other instances the dead is
perhaps supposed to be appeased by the mere compensation {487} paid to
his descendants, or his feelings are simply disregarded when they
collide with the interests of the living.[67] Generally speaking, the
question whether compensation is to be accepted or not, must be
settled by a balancing of advantages and drawbacks.
[Footnote 63: For the influence of wealth on the practice of
composition, see Steinmetz, _Studien_, i. 427 _sqq._, and Lippert,
_Kulturgeschichte der Menschheit_, ii. 591. Occasionally, however,
composition occurs even among such a poor people as the Yahgans of
Tierra del Fuego. "Sometimes," says Mr. Bridges (in _A Voice for South
America_, xiii. 207), "the murderer is suffered to live, but he is
much beaten and hurt, and has to make many presents to the relatives
of the dead."]
[Footnote 64: Schmidt, _Ethik der alten Griechen_, ii. 125 _sqq._
Rohde, _Psyche_, pp. 8 _sqq._, 238.]
[Footnote 65: Kovalewsky, _Coutume contemporaine et loi ancienne_,
p. 238.]
[Footnote 66: Macdonald, _Africana_, i. 170 _sq._]
[Footnote 67: _Cf._ Steinmetz, _Studien_, i. 452.]
We may expect, then, to find the customs regarding blood-revenge and
compensation to vary exceedingly among different peoples. Among many
the rule of revenge is strictly followed, and compensation never, or
rarely, accepted, at least for intentional homicide. This group
includes not only tribes who are in a state of savagery, but peoples
like the Beni Amer,[68] Marea,[69] Kabyles of Jurjura,[70] and Jbâla
of Morocco. Burckhardt says of the Bedouins:--"The stronger and the
more independent a tribe is, the more remote from cultivated
provinces, and the wealthier its individuals, the less frequently are
the rights of the _Thar_ commuted into a fine. Great sheiks, all over
the Desert, regard it as a shameful transaction to compromise in any
degree for the blood of their relations."[71] Among the mountains of
Daghestan[72] and in parts of Albania[73] it is likewise considered
disgraceful to accept compensation for the murder of a relative.
[Footnote 68: Munzinger, _Ostafrikanische Studien_, p. 321 _sq._]
[Footnote 69: _Ibid._ p. 242.]
[Footnote 70: Hanoteau and Letourneux, _op. cit._ iii. 61 _sq._]
[Footnote 71: Burckhardt, _Notes on the Bedouins and Wahábys_, p. 178,
_Cf._ Burton, _Pilgrimage to Al-Madinah and Meccah_, ii. 103.]
[Footnote 72: Kovalesky, in _Revue internationale de Sociologie_,
ii. 87.]
[Footnote 73: Hahn, _op. cit._ i. 178.]
In some instances the acceptance of compensation does not necessarily
mean that the family of the slain altogether renounce their right of
revenge. Among the Ahts, "though it is usual to accept large presents
as expiation for murder, yet, practically, this expiation is not
complete, and blood alone effectually atones for blood. An accepted
present never quite cancels the obligation to punish in the breast of
the offended person or tribe."[74] Among the Somals, "after the
equivalent is paid, the {488} murderer or one of his clan, contrary to
the spirit of El Islam, is generally killed by the kindred or tribe of
the slain."[75] Among the Berbers (Shlu[h.]) of the province of Sûs,
in Southern Morocco, a person who commits homicide immediately flees
to another tribe, and places himself under its protection. His
relatives then pay _ddit_, or blood-money, to the family of the
victim, but this only prevents the offended party from taking revenge
on any of them, and does not entitle the murderer to return; if he
appears outside the tribe to whom he has fled for refuge, he is at any
time liable to be killed. Among the Ossetes, again, it was formerly "a
prevalent custom for a murderer to pay a fixed price for a certain
time to the family of the murdered man, say for a year, during which
time the blood-revenge remained dormant."[76]
[Footnote 74: Sproat, _Scenes and Studies of Savage Life_, p. 153.]
[Footnote 75: Burton, _First Footsteps in East Africa_, p. 87 n. [dagger].
_Cf._ Paulitschke, _Ethnographie Nordost-Afrikas_, p. 263.]
[Footnote 76: von Haxthausen, _Transcaucasia_, p. 405.]
In many instances, on the other hand, custom allows the acceptance of
compensation as a perfectly justifiable alternative for blood-revenge,
or even regards it as the proper method of settling the case. Among
the Indians of Western Washington and North-Western Oregon the
principle of life for life, though fully recognised, is sometimes
abrogated in favour of material damages.[77] Among the Thlinkets "the
murder of a relative can be atoned for by a certain number of
blankets."[78] Among the Californian Karok the murder of a man's
nearest relative may be compounded for by the payment of money.[79]
The Kutchin demand blood-money for a slain kinsman, but avenge his
death should such be denied.[80] Among the Kandhs the custom of
blood-revenge was modified by the principle of money compensation, the
acceptance of such compensation being in no case considered
disgraceful.[81] In the Malay Archipelago, whilst the more ferocious
tribes {489} insist, in many situations, upon a literal compliance
with the law of retaliation, other tribes constantly accept a
pecuniary compensation.[82] Among the majority of the Bedawee tribes
of Egypt compensation is generally taken in commutation for
vengeance;[83] and the same is the case among the Aenezes, though it
would reflect shame on the friends of the slain person if they were to
make the first overture.[84] Among the Wadshagga, again, the
acceptance of blood-money is obligatory.[85] The Vendîdâd forbids the
followers of Zoroastrianism to refuse the compensation offered for a
deed of bloodshed.[86] Among the Irish the public opinion of the
village held that the quarrels between its members should be
compromised in a certain manner. However, if the guilty party did not
pay the amount awarded, the community did not compel him to do so, and
the injured party was then at liberty to avenge his own wrongs by
reprisals or levying of private war.[87] Among the Teutons the kindred
of the slain might, in early times, choose between taking revenge or
accepting compensation, just as they liked; but later on they were
expected by public opinion, and finally required by public authority,
not to pursue the feud if the proper composition was forthcoming,
except in a few extreme cases.[88]
[Footnote 77: Gibbs, 'Tribes of Western Washington and Northwestern
Oregon,' in _Contributions to North American Ethnology_, i. 189.]
[Footnote 78: Petroff, _loc. cit._ p. 165.]
[Footnote 79: Powers, _Tribes of California_, p. 21.]
[Footnote 80: Richardson, _Arctic Searching Expedition_, i. 386.]
[Footnote 81: Hunter, _Annals of Rural Bengal_, ii. 76. Macpherson,
_Memorials of Service in India_, p. 82.]
[Footnote 82: Crawfurd, _History of the Indian Archipelago_, iii. 111.]
[Footnote 83: Lane, _Manners and Customs of the Modern Egyptians_,
p. 120.]
[Footnote 84: Burckhardt, _Notes on the Bedouins and Wahábys_, p. 87.]
[Footnote 85: Merker, quoted by Kohler, in _Zeitschr. f. vergl.
Rechtswiss._ xv. 56.]
[Footnote 86: Geiger, _op. cit._ ii. 34.]
[Footnote 87: _Ancient Laws of Ireland_, iii. p. lxxx.]
[Footnote 88: Keyser, _op. cit._ ii. pt. ii. 95. Pollock and Maitland,
_op. cit._ i. 46 _sq._ _Gotlands-Lagen_, 13.]
Thus the exaction of life for life, from being a duty incumbent on the
family of the dead, becomes a mere right of which they may or may not
avail themselves, as they please, and is at last publicly disapproved
of or actually prohibited. Among the circumstances by which this
process has been brought about there is still one which calls for
special attention, namely, the pressure of some intervening authority,
the elders of the tribe,[89] or {490} the chief, inducing the avenger
to lay down his weapon and to accept money for blood. I do not say
that the practice of compensation has originated in such an
intervention; we meet it among peoples who know nothing of courts,
judges, or regular arbitrators.[90] But when we hear of chiefs making
efforts to check the blood-feud by persuading the injured party to
accept remuneration in money or property, it is impossible to doubt
that some connection exists between the system of compensation and the
judicial power of the chief. Among the Indians of Brazil, when blood
is shed, either designedly or accidentally, by one of the same tribe,
the chief not seldom insists upon the acceptance of compensation by
the family of the deceased.[91] Of the people of Nias, amongst whom
the offender may suffer death at the hands of the avenger, we read
that even grave cases, when brought before the chief, are often
punished by fines only.[92] Among the Dooraunees, in Western
Afghanistan, "if the offended party complains to the Sirdar, or if
_he_ hears of a murder committed, he first endeavours to bring about a
compromise, by offering the Khoon Behau, or of price of blood."[93]
The Teutonic nations, as Kemble observes, in the course of time made
the State the arbitrator between the parties "by establishing a tariff
at which injuries should be rated, and committing to the State the
duty of compelling the injured person to receive, and the wrong-doer
to pay, the settled amount. It thus engaged to act as a mediator
between the conflicting interests, with a view to the maintenance of
the general peace."[94]
[Footnote 89: _Cf._ Vámbéry, _Das Türkenvolk_, p. 305 _sq._ (Kirghiz);
Munzinger, _Ostafrikanische Studien_, p. 500 (Barea and Kunáma).]
[Footnote 90: _E.g._, the Fuegians (Bridges, in _South American
Missionary Magazine_, xiii. 152. _Idem_, in _A Voice for South
America_, xiii. 207).]
[Footnote 91: von Martius, _Beiträge zur Ethnographie Amerika's_, i.
130. _Idem_, in _Jour. Roy. Geographical Soc._ ii. 199.]
[Footnote 92: Modigliani, _Viaggio a Nías_, p. 496.]
[Footnote 93: Elphinstone, _Kingdom of Caubul_, ii. 105 _sq._]
[Footnote 94: Kemble, _Saxons in England_, i. 270.]
We have previously discussed the important measure of substituting
punishment for revenge by transferring the judicial and executive
power of the avenger to a special authority within the body politic,
commissioned with {491} the administration of justice. The system of
compensation was only one or the methods adopted by such an authority
for the settling of disputes; and, on the whole, it was a sign of
weakness. Speaking of the Rejangs of Sumatra, Marsden observes that
the practice of expiating murder by the payment of a certain sum of
money "had doubtless its source in the imbecility of government, which
being unable to enforce the law of retaliation, the most obvious rule
of punishment, had recourse to a milder scheme of retribution, as
being preferable to absolute indemnity."[95] When the central power of
jurisdiction is firmly established, the rule of life for life regains
its sway.[96] Thus, in the mature legislation of semi-civilised and
civilised peoples, up to quite recent times, murder has almost
invariably been treated as a capital offence--unless, indeed,
committed by some person belonging to a specially privileged class,
such as the Peruvian Incas,[97] the Brâhmanas of India,[98] or, in
England, all who had the benefit of Clergy, that is, every man who
knew how to read, with the exception of those who were married to
widows.[99] But among many of the lower races, also, manslayers are
subject to capital punishment, in the proper sense of the term--to
death inflicted, not by an individual avenger, but by the community at
large or by some special authority.[100]
[Footnote 95: Marsden, _History of Sumatra_, p. 246.]
[Footnote 96: _Cf._ Brunner, _Deutsche Rechtsgeschichte_, ii. 599
_sq._ (Teutonic peoples).]
[Footnote 97: Réville, _Hibbert Lectures on the Native Religions of
Mexico and Peru_, p. 151.]
[Footnote 98: _Laws of Manu_, viii. 380 _sq._]
[Footnote 99: Stephen, _History of the Criminal Law of England_, i.
458 _sqq._ According to the Cornelian law, a free Roman citizen could
not be punished capitally for the commission of murder, but was simply
exiled from Italy, whereas a slave was executed for a similar crime
(Mommsen, _Römisches Strafrecht_, p. 631 _sq._).]
[Footnote 100: _Supra_, pp. 171, 172, 189. Veniaminof, quoted by
Petroff, _loc. cit._ p. 152 (Aleuts). Adair, _History of the American
Indians_, p. 150. Morgan, _League of the Iroquois_, p. 331. Harmon,
_Journals of Voyages and Travels_, p. 348 (Indians on the east side of
the Rocky Mountains). Turner, _Samoa_, pp. 178, 295, 334 (Samoans,
natives of Arorae, Efatese). Thomson, in _Jour. Anthr. Inst._ xxxi.
143 (Savage Islanders). Hickson, _A Naturalist in North Celebes_, p.
198 (Sangirese, in former days). Abreu de Galindo, _History of the
Discovery and Conquest of the Canary Islands_, p. 27 (aborigines of
Ferro). Johnston, _Uganda Protectorate_, ii. 882 (Mutei). Beltrame,
_Il Fiume Bianco e i Dénka_, p. 77. In all these cases homicide or
murder is said to be punished with death; but it may be that, in some
of them, our authorities have not sufficiently distinguished between
punishment and blood-revenge.]
It is not only by the slaying of a fellow-creature that a person may
forfeit his right to live. Among various peoples custom allows, or
sometimes even compels, the offended party to kill the offender in
cases which involve {492} no blood-guiltiness, especially
adultery;[101] and we hear of capital punishment being inflicted not
only for homicide, but for treason,[102] incest,[103] adultery,[104]
witchcraft,[105] sacrilege,[106] theft,[107] and other offences.[108]
We have seen that among semi-civilised and civilised nations,
particularly, the punishment of death has been applied to a great
variety of offences, many of which appear to us almost venial.[109]
And we have discussed both the origin of the idea that justice
requires life for life, and the circumstances that have led to the
infliction of punishments the severity of which, apparently at least,
bears no proportion to the magnitude of the crime.[110]
[Footnote 101: _Supra_, p. 290 _sqq._ _Infra_, on Sexual Morality.
Post, _Studien zur Entwicklungsgeschichte des Familienrechts_,
p. 134 _sq._]
[Footnote 102: _Supra_, p. 189.]
[Footnote 103: _Infra_, on Sexual Morality.]
[Footnote 104: _Supra_, p. 189. _Infra_, on Sexual Morality.]
[Footnote 105: _Supra_, p. 189 _sq._]
[Footnote 106: _Supra_, p. 197.]
[Footnote 107: _Infra_, on the Right of Property.]
[Footnote 108: _Supra_, p. 195.]
[Footnote 109: _Supra_, p. 186 _sqq._]
[Footnote 110: _Supra_, ch. vii.]
But whilst, among peoples of culture, capital punishment has been
inflicted far beyond the limits of the _lex talionis_, we meet, on the
other hand, among such peoples with opinions to the effect that it
should not be applied even in the most atrocious cases. The old
philosopher Lao-tsze, the founder of Taouism, condemned it both as
useless and as irreverent. The people, he argued, do not fear death;
to what purpose, then, is it to try to frighten them with death? There
is only one who presides over the infliction of it. "He who would
inflict death in the room of him who presides over it may be described
as hewing wood instead of a great carpenter. Seldom is it that he who
undertakes the hewing, instead of the great carpenter, does not cut
his own hands."[111] Nor does Confucius seem to have been in favour of
capital punishment. When Chî {493} K'ang asked his opinion as to the
killing of "the unprincipled for the good of the principled,"
Confucius replied:--"Sir, in carrying on your government, why should
you use killing at all? Let your evinced desires be for what is good,
and the people will be good."[112] The early Christians generally
condemned the punishment of death, as well as all other forms of
shedding human blood;[113] but when the Church obtained an ascendency,
the condemnation of it was modified into the doctrine that no priest
or bishop must take any part in a capital charge.[114] Later on, from
the twelfth century at least, the priest might assist at judicial
proceedings resulting in a sentence of death, if only he withdrew for
the moment, when the sentence was passed.[115] And whilst
ostentatiously sticking to the principle, "Ecclesia non sitit
sanguinem,"[116] the Church had frequent recourse to the convenient
method of punishing heretics by relegating the execution of the
sentence to the civil power, with a prayer that the culprit should be
punished "as mildly as possible and without the effusion of blood,"
that is, by the death of fire.[117] In modern times the views of the
early Christians regarding capital punishment have been revived by the
Quakers;[118] but the powerful movement in favour of its abolition
chiefly derives its origin from the writings of Beccaria and the
French Encyclopedists.
[Footnote 111: _Tâo Teh King_, 74.]
[Footnote 112: _Lun Yü_, xii. 19.]
[Footnote 113: Hetzel, _Die Todesstrafe_, p. 71 _sqq._ Günther, _Die
Idee der Wiedervergeltung_, i. 271. Lactantius, _Divinæ
Institutiones_, vi. ('De vero cultu') 20 (Migne, _Patrologiæ cursus_,
vi. 708): ". . . occidere hominem sit semper nefas, quem Deus sanctum
animal esse voluit."]
[Footnote 114: _Supra_, p. 381 _sq._ Lecky, _History of European
Morals_, ii. 39. Laurent, _Études sur l'histoire de l'Humanité_, iv.
223; vii. 233.]
[Footnote 115: Gerhohus, _De ædificio Dei_, 35 (Migne, _op. cit._
cxciv. 1282).]
[Footnote 116: Katz, _Grundriss des kanonischen Strafrechts_, p. 54.]
[Footnote 117: Lecky, _History of European Morals_, ii. 41.]
[Footnote 118: Gurney, _Views & Practices of the Society of Friends_,
pp. 377 n. 1, 389.]
The great motive force of this movement has been sympathy with human
suffering and horror of the destruction of human life--feelings which
have been able to operate the more freely, the less they have been
checked either by the belief in the social expediency of {494} capital
punishment, or by the notion of a vindictive god who can be
conciliated only by the death of the offender. It has been argued that
the punishment of death is no more effective as a deterrent from crime
than are certain other punishments. According to Beccaria, it is not
the intensity of a pain which produces the greatest effect on the mind
of man, but its continuance; hence the execution of a culprit,
occupying a short time only, must be a less deterring example than
perpetual slavery, which ought to be the penalty for the greatest
crimes.[119] Moreover, the circumstances which unavoidably attend the
practical application of the punishment of death are such as excite
the sympathy of the public in favour of the perpetrator of the crime
and thereby seriously impair the efficacy of the punishment as an
example.[120] An execution is regarded as less degrading than many
other forms of punishment; when a man dies on the scaffold there is a
counterpoise to the disgrace in the admiration excited by his
firmness, whereas there is no such counterpoise when a man goes off in
the prison van to be immured in a cell.[121] Statistical data prove,
it is said, that, where capital punishment has been abolished either
for certain crimes or generally, crime has not become more frequent
after the abolition, whilst the re-enactment of capital punishment, or
greater strictness in its execution, has nowhere diminished the number
of offences punishable with death.[122] And the punishment of death is
no more required by the dictates of abstract justice than it is
requisite for the safety of the community. It is quite an arbitrary
assumption, based on the rude theory of talion, that death must be
inflicted on him who has caused death; such an assumption can be
refuted simply by showing that there are many degrees of
homicide.[123] Nay, far from being postulates of the highest justice,
laws which {495} prescribe capital punishment may lead to the highest
injustice. As Bentham observes, "the punishment of death is not
remissible"; error is possible in all judgments, but whilst in every
other case of judicial error compensation can be made, death alone
admits of no compensation.[124] And not only may the innocent have to
suffer an irreparable punishment, but the criminal easily escapes his
punishment altogether. Experience shows that the punishment of death
has the disadvantage of diminishing the repressive power of the legal
menace, because witnesses, judges, and jurymen exert themselves to the
utmost in order to avoid arriving at a verdict of guilty in many cases
where an execution would be the consequence of such a verdict.[125]
Finally, the punishment of death almost entirely misses one of the
most essential aims of every legitimate punishment, the reformation of
the criminal. Nay, by putting him to a speedy death we actually
prevent him from morally reforming himself, and from manifesting the
fruits of sincere repentance; and we perhaps deprive him of the
opportunity of making good his claim to mercy at the hands of another
and a higher Tribunal, on which we are arrogantly encroaching in a
matter of which we are wholly unfit to judge.[126]
[Footnote 119: Beccaria, _Dei delitti e delle pene_, § 16.]
[Footnote 120: Romilly, _Punishment of Death_, p. 56 _sqq._]
[Footnote 121: _Ibid._ p. 47 _sq._ Hetzel, _op. cit._ p. 454 _sqq._]
[Footnote 122: Mittermaier, _Die Todesstrafe_, p. 150 _sqq._
Olivecrona, _Om dödsstraffet_, p. 130 _sqq._]
[Footnote 123: Mittermaier, _op. cit._ pp. 62, 133. von Mehring,
_Frage von der Todesstrafe_, p. 19 _sqq._]
[Footnote 124: Bentham, _Rationale of Punishment_, p. 186 _sqq._ _Cf._
Hetzel, _op. cit._ p. 442 _sqq._]
[Footnote 125: Bentham, _op. cit._ p. 191 _sq._ Mittermaier, _op.
cit._ pp. 98 _sqq._, 148.]
[Footnote 126: Romilly, _op. cit._ p. 3 _sqq._]
Under the influence of these and similar arguments, but chiefly owing
to an increasing reluctance to take human life, the legislation of
Europe has, from the end of the eighteenth century, undergone a
radical change with reference to the punishment of death. In several
European and American States it has been formally abolished, or is
nowadays never inflicted,[127] whilst in the rest it is practically
restricted to cases of wilful murder. But it still has as strenuous
advocates as ever, and receives much support from popular feelings. It
is said that the abolition of capital punishment would remove one of
the {496} best safeguards of society; that it definitely prevents the
criminal from doing further mischief; that it is a much more effective
means of deterring from crime than any other penalty; that its
abolition would have the disadvantage of crimes widely differing in
their nature being placed on the same footing; that a person
criminally disposed, if he knew that he would only be punished with
imprisonment for life, would, instead of merely perpetrating robbery,
commit murder at the same time, being aware that no higher penalty on
that account would be inflicted; and so forth. As usually, religion
also is called in to give strength to the argument. Several writers
maintain that the statements in the Bible which command capital
punishment have an obligatory power on all Christian legislators;[128]
we even meet with the assertion that the object of this punishment is
not the protection of civil society, but to carry out the justice of
God, in whose name "the judge should sentence and the executioner
strike."[129] But I venture to believe that the chief motive for
retaining the punishment of death in modern legislation is the strong
hold which the principle of talion has on the minds of legislators, as
well as on the mind of the public. This supposition derives much
support from the fact that capital punishment is popular only in the
case of murder. "Blood, it is said, will have blood, and the
imagination is flattered with the notion of the similarity of the
suffering, produced by the punishment, with that inflicted by the
criminal."[130]
[Footnote 127: Günther, _op. cit._ iii. 347 _sqq._ von Liszt,
_Lehrbuch des Deutschen Strafrechts_, p. 261.]
[Footnote 128: Mittermaier, _op. cit._ p. 128 _sqq._]
[Footnote 129: Clay, _The Prison Chaplain_, p. 357.]
[Footnote 130: Bentham, _Rationale of Punishment_, p. 191.]
CHAPTER XXI
THE DUEL
WHEN the system of revenge was replaced by the system of punishment,
the offended party generally lost the right of killing the offender.
But there are noteworthy exceptions to this rule. In a previous
chapter we have seen that, among various peoples, in cases involving
unusually great provocation, an avenger who slays his adversary is
either entirely excused by custom or law, or becomes subject to a
comparatively lenient punishment.[1] A few words still remain to be
said about the most persistent survival of the custom of exacting
vengeance with eventual destruction of life, the modern duel. But in
connection with this survival it seems appropriate to discuss the
practice of duelling in general, in its capacity of a recognised
social institution.
[Footnote 1: _Supra_, p. 290 _sqq._]
Duelling, or the fighting in single combat on previous challenge, is
sometimes resorted to as a means of bringing to an end hostilities
between different groups of people. Among the aborigines of New South
Wales "the war often ends in a single combat between chosen
champions."[2] In Western Victoria quarrels between tribes are
sometimes settled by duels between the chiefs, and the result is
accepted as final. "At other times disputes are decided by combat
between equal numbers of warriors, painted {498} with red clay and
dressed in war costume; but real fighting seldom takes place, unless
the women rouse the anger of the men and urge them to come to blows.
Even then it rarely results in a general fight, but comes to single
combats between warriors of each side; who step into the arena, taunt
one another, exchange blows with the liangle, and wrestle together.
The first wound ends the combat."[3] Among the Thlinkets feuds between
clans or families were commonly settled by duels between chosen
champions, one from each side.[4] Ancient writers tell us that among
the Greeks, Romans, and Teutons, combats were likewise agreed upon to
take place between a definite number of warriors, for the sake of
ending a war.[5] According to Tacitus, the Germans had the custom of
deciding the event of battle by a duel fought between some captive of
the enemy and a representative of the home army.[6] In all these
cases, as it seems, the duel originates in a desire for a speedy peace.
[Footnote 2: Fraser, _Aborigines of New South Wales_, p. 40.]
[Footnote 3: Dawson, _Australian Aborigines_, p. 77.]
[Footnote 4: Holmberg, 'Ethnographische Skizzen über die Völker des
russischen Amerika,' in _Acta Societatis Scientiarum Fennicæ_,
iv. 322 _sq._]
[Footnote 5: See Grotius, _De jure belli et pacis_, ii. 20. 43. 1;
Grimm, _Deutsche Rechtsalterthümer_, p. 928.]
[Footnote 6: Tacitus, _Germania_, 10.]
In other instances duels are fought for the purpose of settling
disputes between individuals, either by conferring on the victor the
right of possessing the object of the strife, or by gratifying a
craving for revenge and wiping off the affront.
Thus, among the pagan Norsemen, any person who confided in his
strength and dexterity with his weapons could acquire property by
simply challenging its owner to surrender his land or fight for it.
The combat was strictly regulated; the person challenged was allowed
to strike first, he who retired or who lost his weapon was regarded as
vanquished, and he who received the first wound, or who was most
seriously wounded, had to pay a fixed sum of money in order to save
his life.[7] In the {499} islands outside Kamchatka, if a husband
found that a rival had been with his wife, he would admit that the
rival had at least an equal claim to her. "Let us try, then," he would
say, "which of us has the greater right, and shall have her." After
that they would take off their clothes and begin to beat each other's
backs with sticks, and he who first fell to the ground unable to bear
any more blows, lost his right to the woman.[8] Among the Eskimo about
Behring Strait Mr. Nelson was told by an old man that in ancient
times, when a husband and a lover quarrelled about a woman, they were
disarmed by the neighbours and then settled the trouble with their
fists or by wrestling, the victor in the struggle taking the woman.[9]
Among the Chippewyans Richardson saw more than once a stronger man
assert his right to take the wife of a weaker countryman in
consequence of a successful combat. "Any one," he says, "may challenge
another to wrestle, and, if he overcomes, may carry off his wife as
the prize. . . . The bereaved husband meets his loss with the
resignation which custom prescribes in such a case, and seeks his
revenge by taking the wife of another man weaker than himself."[10] In
the tribes of Western Victoria, described by Mr. Dawson, a young chief
who cannot get a wife, and falls in love with one belonging to a chief
who has more than two, can, with her consent, challenge the husband to
single combat, and, if the husband is defeated, the conqueror makes
her his legal wife.[11] "In some points," says Mr. Riedel, "the
aboriginal law of retaliation in Australia corresponds with the code
of honour, so called, which certain classes in Europe have long
maintained. When one blackfellow carries off the {500} wife of
another, the injured husband and the betrayer meet in mortal combat;
and the spear that spills the life blood repairs the wounded honour of
the one, or justifies in the eyes of society the crime of the
other."[12] Among the aborigines of Western Australia "duels are
common between individuals who have private quarrels to settle, a
certain number of spears being thrown until honour is satisfied."[13]
Among the Dieyerie tribe, should anybody accuse another wrongfully, he
is challenged to fight by the person he has accused, and this settles
the matter.[14] Of the duels fought among the natives of
North-West-Central Queensland Dr. Roth gives us an interesting
account. Supposing an individual considers himself aggrieved, a duel
often takes place at a distance from camp. There is no intention of
killing. With two-handed swords, the combatants would only aim at
striking each other on the head; with spears, they would only make for
the fleshy parts of the thighs; with stone-knives, they would only cut
into the shoulders, flanks, and buttocks, producing gashes an inch or
more deep, and up to seven or even eight inches long. The lying upon
the back on the ground--a posture in which no lawful incisions with a
stone-knife can be made--is the sign of defeat, indicating that the
combatant has had enough, and gives in. But the matter has not yet
come to an end; the duels of these savages are not so defective in
point of justice as the modern duels of Europe. "The fight between the
two individuals being at length brought to a termination, steps are
taken by the old men and elders to inquire into the rights or wrongs
of the dispute. If the victor turns out to be the aggrieved party he
has to show good cause, as for instance that the man whom he had just
taken upon himself to punish had raped his gin, gave him the _munguni_
[or death-bone], or wrought him some similarly flagrant wrong: under
such circumstances, no further action is taken by anyone. If, {501} on
the other hand, the victor happens to be the aggrieved party only in
his own opinion, and not in that of those to whom he is answerable,
and who do not believe the grounds on which he commenced the fight to
be sufficient, he has to undergo exactly the same mutilations
subsequently at the hands of the vanquished as he himself had
inflicted." And should one of the combatants be killed in the duel,
which may sometimes happen, the survivor, unless he can show that he
had sufficient provocation or cause, "will be put to death in similar
manner, at the instance of the camp-council, and usually undergo the
extra degradation of digging his own as well as his victim's
grave."[15] Of the South American Charruas Azara writes:--"Ce sont les
parties elles-mêmes qui arrangent leurs différends particuliers: si
elles ne sont pas d'accord, elles se chargent à coups de poing,
jusqu'à ce qu'une des deux tourne le dos et laisse l'autre, sans
reparler de l'affaire. Dans ces duels, ils ne font jamais usage des
armes; et je n'ai jamais ouï dire qu'il y ait eu quelqu'un de
tué."[16] If an Apache kills another, "the next-of-kin to the defunct
individual may kill the murderer--if he can. He has the right to
challenge him to single combat, which takes place before all assembled
in the camp, and both must abide the result of the conflict. There is
no trial, no set council, no regular examination into the crime or its
causes; but the ordeal of battle settles the whole matter."[17] Among
the Central Eskimo, "strange as it may seem, a murderer will come to
visit the relatives of his victim (though he knows that they are
allowed to kill him in revenge) and will settle with them. He is
kindly welcomed, and sometimes lives quietly for weeks and months.
Then he is suddenly challenged to a wrestling match, and if defeated
is killed, or if victorious he may kill one of the opposite party, or
when hunting, he is {502} suddenly attacked by his companions and
slain."[18] Richardson heard that some of the Eskimo "decided their
quarrels by alternate blows of the fist, each in turn presenting his
head to his opponent."[19] The Tunguses formerly had a duel with
arrows called _koutschiguera_, which was fought "only in the presence
of the elders, who marked out the spot, settled the distance of the
combatants, and gave the signal for letting fly."[20] The Santals have
a tradition that years long since there was a custom amongst them "of
deciding their disputes, when the parties were males, by the ordeal of
single combat. The bow and arrow or hanger served in lieu of pistol
and sword for these rustic duels. Such affairs of honour were always
fatal to one party, but of late times, as equitable remedies have been
brought nearer to them, this remnant of a barbarous age has
disappeared.**"[21] Mr. Man also heard that the Kols at one time
preferred the duel to any other mode of seeking redress for a
wrong.[22] The ancient Swedes were even compelled by law to fight
duels to repair their wounded honour. The so-called 'Hedna-lag,' a
fragment of an old pagan law, prescribes that, if any man says to
another, "You are not a man's equal, you have not the heart of a man,"
and the other replies, "I am a man as good as you," they shall
encounter in a place where three roads meet. If he who has suffered
the insult does not appear, he shall be held to be what the other one
called him, and he shall henceforth be allowed neither to swear nor to
give evidence in any case. If, on the other hand, they meet in single
combat, and the offended party kills the offender, he shall have to
pay no compensation for it; but if the offender kills his opponent, he
shall pay half his price.[23]
[Footnote 7: Lea, _Superstition and Force_, p. 111 _sq._ Keyser,
_Efterladte Skrifter_, ii. pt. i. 391. Weinhold, _Altnordisches
Leben_, p. 297. von Amira, 'Recht,' in Paul's _Grundriss der
germanischen Philologie_, iii. 217 _sq._ Arnesen, _Historisk
Indledning til den gamle og nye Islandske Raettergang_, p. 158 _sq._
Rosenberg, _Traek af Livet paa Island i Fristats-Tiden_, p. 98 n.]
[Footnote 8: Steller, _Beschreibung von dem Lande Kamtschatka_, p. 348.]
[Footnote 9: Nelson, 'Eskimo about Behring Strait,' in _Ann. Rep. Bur,
Ethn._ xviii. 292.]
[Footnote 10: Richardson, _Arctic Searching Expedition_, ii. 24 _sq._]
[Footnote 11: Dawson, _op. cit._ p. 36. For other instances of rights
to women being acquired by duels, see Westermarck, _History of Human
Marriage_, p. 159 _sqq._; Post, _Afrikanische Jurisprudenz_, ii. 23
_sq._ (people of Kordofan).]
[Footnote 12: Riedel, _Aborigines of Australia_, p. 6.]
[Footnote 13: Calvert, _Aborigines of Western Australia_, p. 22.]
[Footnote 14: Gason, 'Manners and Customs of the Dieyerie Tribe,' in
Woods, _Native Tribes of South Australia_, p. 266.]
[Footnote 15: Roth, _Ethnological Studies among the North-West-Central
Queensland Aborigines_, p. 139 _sq._]
[Footnote 16: Azara, _Voyages dans l'Amérique méridionale_, ii. 16.]
[Footnote 17: Cremony, _Life among the Apaches_, p. 293.]
[Footnote 18: Boas, 'Central Eskimo,' in _Ann. Rep. Bur. Ethn._ vi. 582.]
[Footnote 19: Richardson, _Arctic Searching Expedition_, i. 367 _sq._]
[Footnote 20: Georgi, _Russia_, iii. 83.]
[Footnote 21: Man, _Sonthalia and the Sonthals_, p. 90.]
[Footnote 22: _Ibid._ p. 90.]
[Footnote 23: Leffler, _Om den fornsvenska hednalagen_, p. 40 _sq._
(in _K. Vitterhets Historie och Antiqvitets Akademiens Månadsblad_,
1879, p. 139 _sq._). Professor Leffler is inclined to believe that
this fragment once formed a part of the older Vestgötalag (_op. cit._
p. 35, in the _Månadsblad_, p. 134).]
{503} These customs and rules are due to a variety of circumstances.
To recognise the duel as a means of acquiring a right to land or
women, is a concession to superior strength in a society where there
is no government, or where the government is weak; whilst in the
opportunity given to the challenged party to oppose the avenger on
equal terms we may trace the interfering influence of public opinion.
The duel is also in a higher degree than downright violence calculated
to bring about a definite arrangement; and in some cases, as we have
seen, it is a mere sham-fight, which may serve as a preventive against
the infliction of more serious injuries, by showing which party is the
weaker and, consequently, has to give in. In other cases, again, the
challenge is a method of bringing forward an offender who otherwise
might be out of reach, and of limiting the fight to the parties
themselves, so as to prevent whole families from making war upon each
other.[24] Moreover, a duel may be preferable to an ordinary act of
revenge as a means of wiping off an affront and of satisfying the
claims of honour; it displays more courage, it commands more respect.
In several of the cases referred to it is obviously a mitigated form
of revenge, a method of settling a point of honour in a comparatively
harmless way, and as such it has certain advantages over the practice
of compensation; it requires no wealth on the part of the offender,
and allows of no doubt as to the courage of the sufferer.[25] The
Queensland aborigines are said to be very proud of the wounds they
receive in their single combats,[26] and the duelling Eskimo "consider
it cowardly to evade a stroke."[27] The duel {504} may, finally, be
regarded as the most equitable form of settling disputes in cases
where both parties claim to be in the right. Sometimes it is even
resorted to as a means of ascertaining the truth, as an ordeal or
"judgment of God."
[Footnote 24: _Cf._ Arnesen, _op. cit._ pp. 150, 166 _sq._]
[Footnote 25: According to Dr. Steinmetz, the origin of the duel is
"die Beschränkung des Rachekampfes. . . . Die treibende Kraft, welche
zu dieser duellartigen Beschränkung führte, war die Exogamie, die
verwandtschaftlichen Beziehungen zwischen Gruppen, der Friedensverlangen
erzeugende, erweiterte Verkehr derselben. Negative Bedingungen waren:
das Fehlen einer rechtsprechenden centralen Regierungsgewalt, und das
nicht Erfülltsein der Entwicklungsbedingungen der Composition,
namentlich der Mangel an ökonomischen Gütern, welche die materielle
Entschädigung unmöglich machte" (Steinmetz, _Studien zur ersten
Entwicklung der Strafe_, ii. 67, 87).]
[Footnote 26: Roth, _op. cit._ p. 140.]
[Footnote 27: Richardson, _Arctic Searching Expedition_, i. 368.]
The wager of battle is well known to every student of mediæval law.
Outside Europe we meet with a similar institution in the Malay
Archipelago. In his 'History of the Indian Archipelago,' Mr. Crawfurd
states:--"The trial by combat or duel, and the appeal to the judgment
of God by various descriptions of ordeal, are not unknown. The Malay
laws direct that the combat or ordeal shall be had recourse to in the
absence of evidence, in the following words: 'If one accuse and
another deny, and there be no witnesses on either side, the parties
shall either fight or submit to the ordeal of melted tin or boiling
oil.'"[28] The natives of the Barito River basin in Borneo have the
following ordeal, called the _Hagalangang_:--"Both parties are placed
in boxes at a distance of seven fathoms opposite one another, the
boxes being made of nibong laths and so high as to reach a man's
breast. Then both receive a sharpened bamboo of a lance's length to
throw at each other at a given signal. The wounded person is supposed
to be guilty."[29] Among the Teutons the judicial combat seems to have
developed out of the ancient practice of settling disputes by private
duelling. In a time when the community did its best to suppress acts
of revenge, it was no doubt a wise measure to adopt the duel as a form
of judicial procedure, investing it with the character of an
ordeal.[30] It seems probable that the duel assumed this character
already among the pagan Teutons.[31] Like other ordeals it was
resorted to in cases where there was some doubt as to the guilt of the
accused.[32] To {505} appeal to "the judgment of God" was an expedient
substitute for human evidence in a society where nothing was more
difficult than to procure reliable witnesses, and where superstition
reigned supreme. Speaking of the Franks, M. Esmein observes:--"En
dehors du flagrant délit ou de l'aveu de l'accusé, tout était
incertitude. . . . Par solidarité forcée, jamais un homme ne
témoignera contre un autre homme du même groupe; il ne témoignera pas
non plus par crainte de la vengeance et des représailles contre un
homme appartenant à un autre groupe."[33] I shall later on try to
prove that the ordeal is not, as it is often supposed to be,
primordially based on the belief in an all-knowing, all-powerful, and
just god, who protects the innocent and punishes the guilty, but that
it largely springs from the same notion as underlies the belief in the
efficacy of an oath. The ordeal, then, intrinsically involves an
imprecation with reference to the guilt or innocence of a suspected
person, and its proper object is to give reality to this imprecation,
for the purpose of establishing the validity or invalidity of the
suspicion. This also holds good of the judicial combat. The issue of
the fight decided the question of guilt because of the imprecation
involved in the oath preceding the duel. Before the conflict commenced
each party asserted his good cause in the most positive manner,
confirmed his assertion by a solemn oath on the Gospels or on a relic
of approved sanctity, and called upon God to grant victory to the
right. Such an oath was an indispensable preliminary to every combat,
and the defeat was thus not merely the loss of the suit, but also a
conviction of perjury, to be punished as such.[34] That the real
object of the judicial duel was to correct the abuses of compurgation
by oath appears from various {506} facts. Gundebald, king of the
Burgundians, says expressly, in the preamble to a law by which he
authorises the wager of battle, that his reason for doing so is, that
his subjects may no longer take oaths upon uncertain matters, or
forswear themselves upon certain.[35] Charlemagne urged the use of the
duel as greatly preferable to the shameless oaths which were taken
with so much facility, and Otho II. ordered its employment in various
forms of procedure for the same reason.[36] Witnesses might have to
fight as well as principals. A Bavarian law even directed the claimant
of an estate to combat not the defendant, but his witness;[37] and in
the later Middle Ages, after enlightened legislators had been
strenuously and not unsuccessfully endeavouring to limit the abuse of
the judicial combat, the challenging of witnesses was still the
favourite mode of escaping legal condemnation.[38] Some codes required
the witnesses to come into court armed, and to have their weapons
blessed on the altar before giving their testimony.[39] The practice
of blessing the arms before the duel took place[40] was no doubt
intended to enable them the better to carry out the imprecation by
saturating them with sanctity, or by increasing their natural
sanctity; weapons are commonly regarded with superstitious veneration,
hence oaths taken upon them are held to be particularly binding.[41]
But though the judicial duel fundamentally derived its efficacy as a
means of ascertaining the truth from its connection with an oath, it
has, owing to the tendency of magic to fuse into religion, readily
come to be regarded as an appeal to the justice of God, just as curses
are transformed into {507} prayers and perjury becomes an offence
against the Deity.
[Footnote 28: Crawfurd, _History of the Indian Archipelago_, iii. 92.]
[Footnote 29: Schwaner, _Borneo_, i. 212.]
[Footnote 30: Dahn observes (_Bausteine_, ii. 57) that "der Kampf
ursprünglich gar kein Gottesurtheil, sondern lediglich eine Verweisung
der Parteien auf Selbsthülfe . . . war." _Cf._ Patetta, _Le ordalie_,
p. 178.]
[Footnote 31: Patetta, _op. cit._ p. 179.]
[Footnote 32: See Unger, 'Der gerechtliche Zweikampf bei den
germanischen Völkern,' in _Göttinger Studien_, 1847, Zweite
Abtheilung, p. 358 _sq._]
[Footnote 33: Esmein, _Cours élémentaire du droit français_, p. 96 _sq._]
[Footnote 34: _Lex Baiuwariorum_, ii. 1. Jourdan, Decrusy, and
Isambert, _Recueil général des anciennes lois françaises_, ii. 840
_sqq._ Bracton, _De Legibus et Consuetudinibus Angliæ_, fol. 141 b
_sq._, vol. ii. 438 _sqq._: "Sic me Deus adjuvet & haec sancta." Lea,
_Superstition and Force_, p. 166 _sq._ Brunner, _Deutsche
Rechtsgeschichte_, ii. 415. von Amira, 'Recht,' in Paul's _Grundriss
der germanischen Philologie_, iii. 218. Unger, _loc. cit._ p. 386.
Tuchmann, in _Mélusine_, iv. 130.]
[Footnote 35: _Leges Burgundionum_, Leges Gundebati, 45.]
[Footnote 36: Lea, _op. cit._ p. 118.]
[Footnote 37: _Lex Baiuwariorum_, xvii. 2 (xvi. 2).]
[Footnote 38: Beaumanoir, _Coutumes du Beauvoisis_, lxi. 58, vol. ii.
398. Lea, _op. cit._ p. 120 _sq._ Unger, _loc. cit._ p. 379 _sqq._]
[Footnote 39: Lea, _op. cit._ p. 120.]
[Footnote 40: Esmein, _op. cit._ p. 95.]
[Footnote 41: For the worship of, and swearing by, weapons, see Du Cange,
'Juramentum super arma,' in _Glossarium ad scriptores mediæ et infimæ
Latinitatis_, iii. 1616 _sq._; Grimm, _Deutsche Rechtsalterthümer_,
pp. 165, 166, 896; Pollock, _Oxford Lectures_, p. 269 _sq._ n. 1;
Joyce _Social History of Ancient Ireland_, i. 286 _sq._ In Morocco,
also, an oath taken on a weapon is considered a particularly solemn
form of swearing.]
In most European countries the judicial duel survived the close of the
Middle Ages, but disappeared shortly afterwards.[42] Various
circumstances contributed to its decline and final disappearance. From
an early period Councils and popes had declared against it,[43] but
with little success; many ecclesiastics, indeed, not only connived at
the practice, but authorised it, and questions concerning the property
of churches and monasteries were decided by combat.[44] There were
other more powerful causes at work--the growth of communes, devoted to
the arts of peace, seeking their interest in the pursuits of industry
and commerce, and enjoying the advantage of settled and permanent
tribunals; the revival of Roman law, which began to undermine all the
institutions of feudalism;[45] the ascendency of the royal power in
its struggle against the nobles; the increase of enlightenment, the
decrease of superstition. But though finally banished from the courts
of justice, the duel did not die. In the sixteenth century, when the
judicial combat faded away, the duel of honour began to flourish.[46]
Buckle justly observes that, "as the trial by battle became disused,
the people, clinging to their old customs, became more addicted to
duelling";[47] hence the judicial duel may be regarded as the direct
parent of the modern duel.[48] The Church and the State naturally
tried to suppress this sanguinary survival of barbarism. The Council
of Trent declared that "the detestable custom of duelling, introduced
by the contrivance of the devil, that by the bloody death of the body
{508} he may accomplish the ruin of the soul," was to be utterly
exterminated from the Christian world, and that not only principals
and seconds, but anyone who had given counsel in the case of a duel,
or had in any other way persuaded a person thereunto, as also the
spectators thereof, should be subjected to excommunication and
perpetual malediction.[49] In England, Cromwell's Parliament made a
determined effort to check the practice.[50] A Scotch law of 1600
rendered the bare act of engaging in a duel, without license from the
king, a capital offence.[51] About the same period the Spanish Cortes
passed a law which subjected all parties to a duel to the penalties of
treason.[52] In 1602, Henry IV. of France issued an edict condemning
to death whoever should give or accept a challenge or act as
second;[53] and already several edicts against duelling had been
promulgated under Louis XIII.[54] when, in 1626, there was published a
new one punishing with death any person who had killed his adversary
in a duel, or had been found guilty of sending a challenge a second
time.[55] But all these enactments had little or no effect. We are
told that in the eight years between 1601 and 1609, two thousand men
of noble birth fell in duels in France; and, according to Lord Herbert
of Cherbury, who was ambassador at the court of Louis XIII., there was
scarce a Frenchman worth looking on who had not killed his man in a
duel.[56] As Robertson observes, in reference to duelling, "no custom,
how absurd soever it may be, if it has subsisted long, or derives its
force from the manners and prejudices of the age in which it prevails,
was ever abolished by the bare promulgation of laws and statutes."[57]
In spite of laws which directly prohibit duelling, or which punish
with great severity anyone who kills another in a duel, sometimes even
subjecting {509} him to punishment for murder,[58] the duel still
prevails in many European countries as a recognised custom, so much
supported by public opinion that the laws referring to it are seldom
or never applied.
[Footnote 42: Lea, _op. cit._ p. 199 _sqq._ In England, however, it
was formally abolished by law as late as 1819 (Stephen, _History of
the Criminal Law of England_, i. 249 _sq._).]
[Footnote 43: Du Boys, _Histoire du droit criminel des peuples
modernes_, ii. 182. Lea, _op. cit._ p. 206 _sqq._]
[Footnote 44: Robertson, _History of the Reign of the Emperor Charles
V._ i. 357 _sq._ 'Notitia gurpitionis,' in Bouquet, _Recueil des
historiens des Gaules et de la France_, ix. 729.]
[Footnote 45: Lea, _op. cit._ pp. 200-205, 211 _sq._ Unger, _loc.
cit._ p. 392 _sqq._]
[Footnote 46: Storr, 'Duel,' in _Encyclopædia Britannica_, vii. 512.]
[Footnote 47: Buckle, _Miscellaneous and Posthumous Works_, i. 386.
_Cf._ Bosquett, _Treatise on Duelling_, p. 79.]
[Footnote 48: Storr, _loc. cit._ p. 511.]
[Footnote 49: _Canons and Decrees of the Council of Trent_, Session
xxv. 19, p. 274 _sq._]
[Footnote 50: Pike, _History of Crime in England_, ii. 192.]
[Footnote 51: Hume, _Commentaries on the Law of Scotland_, ii. 281.
Erskine, _Principles of the Law of Scotland_, p. 560.]
[Footnote 52: Truman, _Field of Honor_, p. 70.]
[Footnote 53: Isambert, Taillandier, and Decrusy, _Recueil général des
anciennes lois françaises_, xv. 351 _sq._]
[Footnote 54: _Ibid._ xvi. 21, 106, 146.]
[Footnote 55: _Ibid._ xvi. 176, 179.]
[Footnote 56: Storr, _loc. cit._ p. 512.]
[Footnote 57: Robertson, _op. cit._ i. 66.]
[Footnote 58: Günther, _Die Idee der Wiedervergeltung_, iii. 225, n.
467. Stephen, _History of the Criminal Law of England_, iii. 99 _sqq._
Gelli, _Il duello_, p. 21.]
This curious practice of taking the law into one's own hands, which we
find existing in the midst of modern civilisation, is explicable,
partly from the indifference with which legislators have treated
offences against honour,[59] partly from the force of habit. The
insulted person, finding no adequate legal remedy for the affront he
has suffered, determines to be his own avenger, and challenges the
offender to fight. Nor is revenge his only motive. He desires also to
wash off the indignity by showing that he respects his honour more
than his life. The notion that a challenge to mortal combat effaces
the blot which an insult has imprinted upon a man's honour is a
survival from a period when the honourable man was above everything a
brave man.[60] By displaying courage the offended party demonstrates
that he is not worthy of contempt, by showing timidity he condemns
himself. So far as justice is concerned, the duel, of course, became
an absurdity as soon as it ceased to be looked upon in the light of an
ordeal. It compels the insulted person to expose himself to a fresh
injury from the side of an impudent offender, it allows the scoundrel
to repay the most condign censure with a mortal stroke. But when a
man's honour is at stake the voice of justice is easily silenced, and
the pressure of ancient habit is greater than ever. As is usual in
similar cases, a variety of more or less futile arguments are adduced
to give their support to the survival. Lord Kames maintained that, if
two persons agree to decide their quarrel by single combat, the State
has nothing to do with it, since they need not make use of the
protection which the State offers them.[61] But, as a matter of fact,
the {510} duel is not a private affair between two individuals. As
Moore observed, "a refusal of the duel is attended with such
mortifying circumstances, with such an imputation of meanness and
cowardice . . . , with such a studied contempt in public, and
exclusion from the polite circle in private, as renders the
alternative both cruel and inhuman";[62] and it would seem that the
State ought to protect its members against such a compulsion. It is
said that the duel "grasps the sword of justice, which the laws have
dropped, punishing what no code can chastise--contempt and
insult."[63] But we find that in countries where it no longer
prevails, laws against insults, courts of honour, and especially more
refined ideas as regards honorary satisfaction, have made it as
useless as it is absurd, a matter of the past which nobody desires to
revive.
[Footnote 59: _Cf._ Bentham, _Theory of Legislation_, p. 299 _sqq._]
[Footnote 60: That the modern duel is a special development of
Chivalry has been pointed out by Buckle (_History of Civilization in
England_, ii. 136 _sq._).]
[Footnote 61: Kames, _Sketches of the History of Man_, i. 415 n.]
[Footnote 62: Moore, _Full Inquiry into the Subject of Suicide_,
ii. 276.]
[Footnote 63: Quoted by Millingen, _History of Duelling_, i. 300.]
CHAPTER XXII
BODILY INJURIES
CLOSELY related to the right to life is the right to bodily integrity.
Indeed, homicide is, generally speaking, the highest form of bodily
injury which can, in the nature of things, be inflicted, although
there are some forms of ill-treatment which are more terrible than
death itself.[1]
[Footnote 1: _Cf._ Stephen, _History of the Criminal Law of England_,
iii. 11.]
In the case of bodily injuries the magnitude of the offence is, other
things being equal, proportionate to the harm inflicted. At the lower
stages of civilisation we meet with the principle of an eye for an eye
and a tooth for a tooth, or the offender has to pay an adequate
compensation for the injury.[2] It is said in the Laws of Manu that,
if a blow is struck against men in order to give them pain, the judge
shall inflict a fine in proportion to the amount of pain caused.[3]
According to Muhammedan law, retaliation for intentional wounds and
mutilations is allowed, but a fine may be accepted instead. The fine
for depriving a man of any of his five senses, or dangerously wounding
him, or grievously disfiguring him for life, or cutting off a member
that is single, as the {512} nose, is the whole price of blood; the
fine for a member of which there are two and not more, as a hand or a
foot, is half the price of blood; the fine for a member of which there
are ten, as a finger or a toe, is a tenth of the price of blood.[4]
The scale of fines for bodily injuries contained in many of the early
Teutonic law-books is minute to a degree.[5] According to various
texts of the Salic law, 100 solidi--that is, a moiety of the
_wergeld_--must be paid for depriving a man of a hand, foot, eye, or
the nose; the thumb and great toe were valued at 50 solidi; the second
finger with which the bow was drawn, at 35.[6] With respect to other
acts of violence, the fine varied according to several circumstances,
as, whether the blow was given with a stick or with closed fist,
whether the brain was laid bare, whether certain bones were obtruded
and how much, whether blood flowed from the wound on the ground, and
so forth.[7] In the Anglo-Saxon codes almost every part and particle
of the body, every tooth, toe, and nail, had its price. According to
the Laws of Aethelbirht, for instance, twenty shillings were paid for
striking off a thumb, three for a thumb nail, eight for the
forefinger, eleven for the little finger.[8] In early Celtic law
different amounts of injury were taxed with a similar affected
precision.[9] Nothing can better give us an idea of the business-like
manner in which the whole subject was treated than the Irish law
against castration. If the injured persons be people to whom the
organs extirpated are of no use, "such as a decrepit old man or a man
in orders, there is nothing due to them for the loss of them, but
body-fine according to the severity of the wound."[10] {513} After
this one is almost surprised to read in the ancient laws of Ireland
that, when a person had once been maimed, and received part or all of
his body-fine, no subsequent wrong-doer could insist that the injured
person should be rated as a damaged article.[11]
[Footnote 2: Post, _Afrikanische Jurisprudenz_, ii. 61 _sqq._
Munzinger, _Ostafrikanische Studien_, pp. 208 (Takue), 502 (Barea and
Kunáma). Burton, _Two Trips to Gorilla Land_, i. 105 (Mpongwe).
Maclean, _Compendium of Kafir Laws and Customs_, p. 61 _sq._
Macpherson, _Memorials of Service in India_, p. 82 (Kandhs). Earl,
_Papuans_, p. 83 (Papuans of Dory). Kubary, _Die socialen
Einrichtungen der Pelauer_, p. 74 (Pelew Islanders). Petroff, 'Report
on Alaska,' in _Tenth Census of the United States_, p. 105 (Thlinkets).]
[Footnote 3: _Laws of Manu_, viii. 286.]
[Footnote 4: Lane, _Manners and Customs of the Modern Egyptians_, p.
120. Sachau, _Muhammedanisches Recht_, p. 764.]
[Footnote 5: Wilda, _Strafrecht der Germanen_, p. 729. Stemann, _Den
danske Retshistorie indtil Christian V.'s Lov_, p. 658. Stephen,
_History of the Criminal Law of England_, i. 56. Lappenberg, _History
of England under the Anglo-Saxon Kings_, ii. 422.]
[Footnote 6: _Lex Salica_, edited by Hessels, coll. 163-167, 170,
172-177, 179.]
[Footnote 7: _Ibid._ col. 100 _sqq._]
[Footnote 8: _Laws of Æthelbirht_, 54.]
[Footnote 9: _Ancient Laws of Ireland_, iii. pp. cix., 349.
_Venedotian Code_, iii. 23 (_Ancient Laws and Institutes of Wales_,
p. 151 _sqq._). _Dimetian Code_, ii. 17 (_ibid._ p. 246 _sqq._).
_Gwentian Code_, ii. 6 _sq._ (_ibid._ p. 340 _sq._).]
[Footnote 10: _Ancient Laws of Ireland_, iii. 355.]
[Footnote 11: _Ibid._ iii. pp. cix., cxi., 349, 351.]
However, the degree of the offence depends not only on the suffering
inflicted, but on the station of the parties concerned; and in some
cases the infliction of pain is held allowable or even a duty.
By using violence against their parents, children grossly offend
against the duty of filial regard and submissiveness. It is said in
the Laws of [Hv]ammurabi, that a man who has struck his father shall
lose his hands.[12] According to Exodus, "he that smiteth his father,
or his mother, shall be surely put to death."[13] In Corea the man who
strikes his father is beheaded.[14] On the other hand, parents are
allowed to inflict corporal punishment on their children; but this is
not the case everywhere--indeed, among many of the lower races
children are never, or hardly ever, subject to such punishment.[15]
Among the Australian Dieyerie the children are never beaten, and
should any woman violate this law, she is in turn beaten by her
husband.[16] The Efatese, says Mr. Macdonald, "are shocked to see
Europeans correcting their children; I never saw an Efatese beating a
child."[17] The Eskimo {514} visited by Mr. Hall never inflict
physical chastisement upon the children; "if a child does wrong--for
instance, if it becomes enraged, the mother says nothing to it till it
becomes calm. Then she talks to it, and with good effect."[18] Among
the Tehuelches of Patagonia "the children are indulged in every way,
ride the best horses, and are not corrected for any misbehaviour."[19]
Among the Gaika tribe of the Kafirs, again, parents may inflict
corporal punishment on their children, but are fined for causing
permanent injuries to their persons, such as the loss of an eye or a
tooth.[20]
[Footnote 12: _Laws of [Hv]ammurabi_, 195.]
[Footnote 13: _Exodus_, xxi. 15.]
[Footnote 14: Griffis, _Corea_, p. 236.]
[Footnote 15: Curr, _Recollections of Squatting in Victoria_, p. 252
(Bangerang tribe). Angas, _Savage Life and Scenes in Australia_, i. 94
(tribes of the Lower Murray). Calvert, _Aborigines of Western
Australia_, p. 30 _sq._ Lumholtz, _Among Cannibals_, p. 192 _sq._
(Northern Queensland aborigines). Kubary, 'Die Palau-Inseln in der
Südsee,' in _Journal des Museum Godeffroy_, iv. 56 (Pelew Islanders).
Man, _Sonthalia and the Sonthals_, p. 78. von Siebold, _Die Aino auf
der Insel Yesso_, p. 11. Murdoch, 'Ethnological Results of the Point
Barrow Expedition,' in _Ann. Rep. Bur. Ethn._ ix. 417 (Point Barrow
Eskimo). Boas, 'Central Eskimo,' _ibid._ vi. 566. Richardson, in
Franklin, _Journey to the Shores of the Polar Sea_, p. 68 (Crees).
Lumholtz, _Unknown Mexico_, p. 274 (Tarahumares). Rautanen, in
Steinmetz, _Rechtsverhältnisse_, p. 329 (Ondonga). See also Steinmetz,
_Ethnologische Studien zur ersten Entwicklung der Strafe_, ii. ch. vi.
§ 2, especially p. 203; _Idem_, 'Das Verhältnis zwischen Eltern und
Kindern bei den Naturvölkern,' in _Zeitschrift für Socialwissenschaft_,
i. 610 _sqq._]
[Footnote 16: Gason, 'Manners and Customs of the Dieyerie Tribe,' in
Woods, _Native Tribes of South Australia_, p. 258.]
[Footnote 17: Macdonald, _Oceania_, p. 195.]
[Footnote 18: Hall, _Arctic Researches_, p. 568.]
[Footnote 19: Musters, _At Home with the Patagonians_, p. 197.]
[Footnote 20: Brownlee, in Maclean, _Compendium of Kafir Laws and
Customs_, p. 118.]
The power which the husband possesses over his wife much more commonly
implies the right of inflicting pain on her than of punishing her
capitally; but even among savages and barbarians the former right is
not universally granted to him. The Pelew Islanders do not allow a
husband to beat his wife.[21] Among various Eskimo tribes the women
are rarely, if ever, beaten.[22] Among the Central Eskimo the husband
"is not allowed to maltreat or punish his wife; if he does, she may
leave him at any time, and the wife's mother can always command a
divorce."[23] Many, or most, of the North American Indians consider it
disgraceful for a husband to beat his wife.[24] Among the Kalmucks a
man has no right to raise his hand against a woman.[25] Among the
Madis women are never beaten.[26] Among the Ondonga a man is not
allowed to chastise his wife.[27] Among the Gaika tribe of the Kafirs
"a husband may beat his wife for misconduct; but if he should strike
out her eye or a tooth, or otherwise maim her, he is fined at the
discretion of the Chief."[28] {515} According to the native code of
Malacca, "a man may beat his wife, but not as he would chastise a
slave, and not till blood flows"; if he should do so, he is fined.[29]
According to Muhammedan law, a husband may chastise an obstinate wife,
but he must not cause her great suffering, nor inflict on her a
wound.[30] We read in the Laws of Manu:--"A wife, a son, a slave, a
pupil, and a younger brother of the full blood, who have committed
faults, may be beaten with a rope or a split bamboo, but on the back
part of the body only, never on a noble part; he who strikes them
otherwise will incur the same guilt as a thief."[31] In Europe the
idea expressed by the ancient Roman that "he who beats his wife or
children lays hands on that which is most sacred and holy,"[32] was
shared neither by the ancient Teutons[33] nor by mediæval legislators.
According to the Jydske Lov, a husband was allowed to chastise his
wife with a stick or rod, though not with a weapon; but he had to take
care not to break any limb of her body.[34] In the Coutumes du
Beauvoisis it is said that a man may beat his wife if she belies or
curses him, or disobeys his "reasonable" commands, or for some other
similar reason, though he must not kill or maim her.[35] Among Russian
and South Slavonian[36] peasants public opinion still permits the
husband to inflict corporal punishment on his wife. In Russia "the
bridegroom, while he is leading his bride to her future home, gives
her from time to time light blows from a whip, saying at each stroke:
'Forget the manners of thine own {516} family, and learn those of
mine.' As soon as they have entered their bedroom, the husband says to
his wife, 'Take off my boots.' The wife immediately obeys her
husband's orders, and, taking them off, finds in one of them a whip,
symbol of his authority over her person. This authority implies the
right of the husband to control the behaviour of his wife, and to
correct her every time he thinks fit, not only by words, but also by
blows. The opinion which a Russian writer of the sixteenth century . . .
expresses as to the propriety of personal chastisement, and even as
to its beneficial effects on the health, is still shared by the
country people. . . . The customary Court seems to admit the use of
such disciplinary proceedings by not interfering in the personal
relations of husband and wife. 'Never judge the quarrel of husband and
wife,' is a common saying, scrupulously observed by the village
tribunals, which refuse to hear any complaint on the part of the
aggrieved woman, at least so long as the punishment has not been of
such a nature as to endanger life or limb."[37]
[Footnote 21: Kubary, 'Die Palau-Inseln,' in _Jour. des Museum
Godeffroy_, iv. 43.]
[Footnote 22: King, in _Jour. Ethn. Soc._ i. 147. _Cf._ Murdoch, _loc.
cit._ p. 414.]
[Footnote 23: Boas, in _Ann. Rep. Bur. Ethn._ vi. 579.]
[Footnote 24: Waitz, _Anthropologie der Naturvölker_, iii. 101. _Cf._
Powers, _Tribes of California_, p. 178 (Gallinomero).]
[Footnote 25: Liadov, in _Jour. Anthr. Inst._ i. 405.]
[Footnote 26: Ratzel, _History of Mankind_, iii. 40.]
[Footnote 27: Rautanen, in Steinmetz, _Rechtsverhältnisse_, p. 329.]
[Footnote 28: Brownlee, in Maclean, _op. cit._ p. 117.]
[Footnote 29: Newbold, _British Settlements in the Straits of
Malacca_, ii. 311 _sq._]
[Footnote 30: Sachau, _Muhammedanisches Recht_, pp. 10, 44, 849.]
[Footnote 31: _Laws of Manu_, viii. 299 _sq._]
[Footnote 32: Plutarch, _Cato Major_, xx. 3.]
[Footnote 33: Nordström, _Bidrag till den svenska samhällsförfattningens
historia_, ii. 61 _sq._ Stemann, _op. cit._ p. 323 _sq._]
[Footnote 34: _Jydske Lov_, ii. 82.]
[Footnote 35: Beaumanoir, _Coutumes du Beauvoisis_, lvii. 6, vol. ii.
p. 333: "Il loist bien à l'homme batre se feme, sans mort et sans
mehaing, quant ele le meffet; si comme quant ele est en voie de fere
folie de son cors, ou quant ele dement son baron ou maudist, ou quant
ele ne veut obeir à ses resnables commandemens que prode feme doit
fere: en tel cas et en sanllables est il bien mestiers que li maris
soit castierres de se feme resnablement. . . . Li maris le doit
castier et repenre selonc toutes les manieres qu'il verra que bon sera
por li oster de tel visse, exepté mort ou mehaing."]
[Footnote 36: Krauss, _Sitte und Branch der Südslaven_, p. 526.]
[Footnote 37: Kovalewsky, _Modern Customs and Ancient Laws of Russia_,
p. 44 _sq._ _Cf._ Meiners, _Vergleichung des ältern und neuern
Russlandes_, ii. 167 _sq._; _Idem_, _History of the Female Sex_, i. 160.]
It seems that, wherever slavery exists, the master has a right to
inflict corporal punishment on his slave, even though he be forbidden
to deprive him of any of his limbs. According to the Chinese Penal
Code, the master, or relations of the master of a guilty slave, may
chastise such slave in any degree short of occasioning his death,
without being liable to any punishment;[38] whereas "all slaves who
are guilty of designedly striking their masters, shall, without making
any distinction between principals and accessories, be beheaded."[39]
Among the Hebrews, if a man by blows destroyed an eye or a tooth, or
any other member belonging to his man-servant or maid-servant, he was
bound to let the injured person go free, though full retribution was
legally ordained for bodily injuries done to free Israelites.[40] In
the North American Slave States and {517} in the colonies of all
European Powers the master could inflict any number of blows upon his
slave, but if he mutilated him he was fined or subjected to a very
moderate term of imprisonment.[41]
[Footnote 38: _Ta Tsing Leu Lee_, sec. cccxiv. p. 340.]
[Footnote 39: _Ibid._ sec. cccxiv. p. 338.]
[Footnote 40: _Exodus_, xxi. _sqq._]
[Footnote 41: 'Negro Act' of 1740, § 37, in Brevard, _Digest of the
Public Statute Law of South Carolina_, ii. 241. Stephen, _Slavery of
the British West India Colonies_, i. 36 _sq._ Edwards, _History of the
British West Indies_, ii. 192.]
The maltreatment of another person's slave has, even by civilised
legislators, been regarded as an injury done to the master rather than
to the slave. According to Muhammedan law, the fine imposed on a free
person for injuring a slave varies according to the value of the
slave.[42] In the Institutes of Justinian it is said that, "if a man
were to flog another man's slave in a cruel manner, an action would,
in this case, lie against him," but that the master has no right of
action against a person who has struck the slave with his fist.[43] In
the Negro Act of 1740 it was prescribed that, if a slave was beaten by
any person who had not sufficient cause or lawful authority for so
doing, and if he or she was maimed or disabled by such beating from
performing his or her work, the offender should pay to the owner of
the slave "the sum of 15 shillings current money per diem, for every
day of his lost time, and also the charge of the cure of such
slave."[44] But if the beating of the slave caused no loss of service
to his master, the offender was not, as a rule, punished by law. A
decision of the Supreme Court of Maryland established expressly the
law to be, in that State, that trespass would not lie by a master for
an assault and battery on his slave, unless it were attended with a
loss of service.[45] If, on the other {518} hand, the offender was a
slave and his victim a white man, the injury was regarded in a very
different light. We read in an act of Georgia passed in 1770:--"If any
slave shall presume to strike any white person, such slave . . . shall
. . . for the second offence suffer death: But in case any such slave
shall grievously wound, maim, or bruise any white person, though it
shall be only the first offence, such slave shall suffer death."[46]
And to offer violence, to strike, attempt to strike, struggle with, or
resist any white person, was, even by the latest meliorating laws
issued in the British Colonies, declared to be a crime in a slave
which, if the white person had been wounded or hurt, and in some
islands even without that condition, should subject the offender to
death, dismemberment, or other severe penalties.[47] We read in one of
the codes of ancient Wales:--"If a freeman strike a bondman, let him
pay him twelve pence. . . . If a bondman strike any freeman, it is
just to cut off his right hand, or his right foot."[48] According to
Chinese law, a freeman striking a slave shall "be punished less
severely by one degree than in the ordinary cases of the same
offence"; whereas "a slave striking a freeman shall, in proportion to
the consequences, be punished one degree more severely than is by law
provided in similar cases between equals."[49]
[Footnote 42: Lane, _Manners and Customs of the Modern Egyptians_,
p. 120.]
[Footnote 43: _Institutiones_, iv. 4. 3.]
[Footnote 44: Brevard, _op. cit._ ii. 231 _sq._]
[Footnote 45: Harris and Johnson, _Reports of Cases argued and
determined in the General Court and Court of Appeals of the State of
Maryland_, i. 4. Of all the Slave States, so far as I know, Kentucky
was the only one where the owner of a slave might bring an action of
trespass against anyone who whipped, stroke, or otherwise **abused the
slave without the owner's consent, notwithstanding the slave was not
so injured that the master lost his services thereby (Morehead and
Brown, _Digest of the Statute Laws of Kentucky_, ii. 1481). In
Tennessee, according to an act of 1813, a person was punished if he
"wantonly and without sufficient cause" beat or abused the slave of
another (Caruthers and Nicholson, _Compilation of the Statutes of
Tennessee_, p. 678).]
[Footnote 46: Prince, _Digest of the Laws of the State of Georgia_,
p. 781.]
[Footnote 47: Stephen, _Slavery of the British West India Colonies_,
i. 188. Edwards, _History of the British West Indies_, ii. 202 _sq._]
[Footnote 48: _Gwentian Code_, ii. 5. 31 _sq._ (_Ancient Laws and
Institutes of Wales_, p. 339). For ancient Swedish law on this
subject, see _Gotlands-Lagen_, i. 19. 37.]
[Footnote 49: _Ta Tsing Leu Lee_, sec. cccxiii. p. 336.]
Very frequently the penalties or fines for bodily injuries are
influenced by the class or rank of the parties even when both of them
are freemen. Among the Marea, whilst a commoner who wounds another
commoner simply pays him compensation for the hurt, a commoner who
wounds a nobleman must abandon to him all his property and become his
slave.[50] At Zimmé the fines for assaults "vary greatly, according to
the rank of the party complaining."[51] {519} Among the Ossetes the
limbs of a noble are rated at twice as much as the limbs of an
ordinary freeman.[52] The Laws of [Hv]ammurabi contain the following
provisions:--"If a man has caused the loss of a gentleman's eye, his
eye one shall cause to be lost. If he has shattered a gentleman's
limb, one shall shatter his limb. If he has caused a poor man to lose
his eye or shattered a poor man's limb, he shall pay one mina of
silver. If a man has made the tooth of a man that is his equal to fall
out, one shall make his tooth fall out. If he has made the tooth of a
poor man to fall out, he shall pay one-third of a mina of silver,"[53]
According to the Laws of Manu, if a man of a low caste does hurt to a
man of any of the three highest castes, the offending member shall be
cut off;[54] and he who intentionally strikes a Brâhmana in anger,
even if it were only with a blade of grass, "will be born during
twenty-one existences in the wombs of such beings where men are born
in punishment of their sins."[55] In early Teutonic and Celtic codes
we meet with the principle that the compensation by which a bodily
injury is to be atoned for varies according to the rank of the parties
concerned.[56]
[Footnote 50: Munzinger, _Ostafrikanische Studien_, p. 244.]
[Footnote 51: Colquhoun, _Amongst the Shans_, p. 132.]
[Footnote 52: von Haxthausen, _Transcaucasia_, p. 409.]
[Footnote 53: _Laws of [Hv]ammurabi_, 196-198, 200 _sq._ _Cf._ _ibid._
202 _sq._]
[Footnote 54: _Laws of Manu_, viii. 279.]
[Footnote 55: _Ibid._ iv. 166. _Cf._ _ibid._ iv. 167.]
[Footnote 56: Kemble, _Saxons in England_, i. 134. _Ancient Laws of
Ireland_, iii. p. cxi. _Dimetian Code_, ii. 17. 17 (_Ancient Laws and
Institutes of Wales_, p. 248). _Gwentian Code_, ii. 7. 13 (_ibid._
342). de Valroger, _Les Celtes_, p. 470. Innes, _Scotland in the
Middle Ages_, p. 180.]
We have noticed that men in their estimation of human life,
particularly at the earlier stages of culture, discriminate between
fellow-tribesmen or compatriots and aliens. A similar distinction is
made with reference to other bodily injuries. It reaches its pitch in
the sufferings inflicted on vanquished enemies. The treatment to which
the Kamchadales subjected their male prisoners of war included
"burning, hewing them to pieces, tearing their entrails out when
alive, and hanging them by the feet."[57] Some of the Dacotahs, when
they had taken a captive, "secured him {520} to a stake and allowed
their women to torture him by mutilating him previous to killing
him";[58] and of many other North American Indians it is said that
they "devote their captives to death, with the most agonising
tortures."[59] The wars of the Society Islanders, Ellis observes, were
most merciless and destructive; "invention itself was tortured to find
out new modes of inflicting suffering."[60] On the other hand, there
are not wanting instances of savage warfare being conducted on more
humane principles. Dobrizhoffer tells us that "cruelty towards
captives and enemies is abhorred by the Abipones, who never torture
the dying";[61] and among the Somals no injury is done to enemies who
have been severely wounded in the battle.[62] Civilised nations
maintain that, in time of war, no greater injuries should be inflicted
upon the enemy than are necessary to obtain the end of the war.
[Footnote 57: Krasheninnikoff, _History of Kamschatka_, p. 200.]
[Footnote 58: Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._
iii. 313.]
[Footnote 59: Adair, _History of the American Indians_, p. 388.]
[Footnote 60: Ellis, _Polynesian Researches_, i. 293. _Cf._ Williams,
_Narrative of Missionary Enterprises_, p. 533 (Samoans); Foreman,
_Philippine Islands_, p. 185; Ellis, _Tshi-speaking Peoples of the
Gold Coast_, p. 172 _sq._]
[Footnote 61: Dobrizhoffer, _Account of the Abipones_, ii. 411.]
[Footnote 62: Paulitschke, _Ethnographie Nordost-Afrikas_, p. 255.]
The right to bodily integrity is influenced by religious differences
as well as national. According to Muhammedan law, the compensation for
injuries inflicted on a Jew or a Christian is a third, for those
inflicted on a Parsee only a fifteenth, of the sum to be paid for
similar injuries done to a Moslem.[63] A mediæval Spanish law
prescribes that a Christian who beats a Jew shall pay four maravedis,
but that a Jew who beats a Christian shall pay ten.[64]
[Footnote 63: Sachau, _op. cit._ p. 764.]
[Footnote 64: 'Fuero de Sepulveda,' art. 37 _sq._, quoted by Du Boys,
_Histoire du droit criminel de l'Espagne_, p. 74.]
The right to bodily integrity may be forfeited by the commission of a
crime. As has been already noticed, physical injuries are frequently
resented according to the law of like for like;[65] and in other
cases, also, the infliction {521} of corporal suffering--by
mutilation, scourging, and so forth--is a common penalty. Amputation
or mutilation of the offending member has particularly been in vogue
among so-called peoples of culture.[66] It is often **mentioned
in the Code of [Hv]ammurabi[67] and in the Laws of Manu.[68] It
occurred among the Greeks,[69] Romans,[70] and Teutons.[71] Mediæval
codes contain numerous instances of it.[72] The Laws of Alfred
prescribe that a male _theow_ who commits a rape upon a female _theow_
shall be emasculated;[73] and in a later age Bracton reserves the same
punishment for the deflowerer of a virgin, with the addition that the
offender shall also lose his eyes, "on account of his looking at the
beauty, for which he coveted possession of the virgin."[74] According
to a law of Cnut, an adulteress shall have her nose and ears cut
off.[75] Aethelstan enjoined that an illicit coiner should lose his
right hand;[76] whereas in later times this punishment was restricted
to those who struck anybody in the king's presence or in his
court.[77] By the statute law of Scotland the punishment of forgery,
or falsifying of writings, was at first the amputation of the hand,
afterwards dismembering of it, joined with other pains.[78] In some
countries a perjurer lost the offending fingers or his right hand,[79]
in others he had his tongue cut {522} off or pierced with a hot
iron;[80] and in England, before the Conquest, a man might lose his
tongue by bringing a false and scandalous accusation.[81] In the
seventeenth century a person in Scotland was sentenced to have his
tongue bored because he had libelled the Lord Justice General.[82] In
German and Austrian codes we find, even in the eighteenth century,
traces of the principle of punishing the offending member;[83] and in
France the last survival of it--the amputation of the right hand of a
parricide before his execution--disappeared only in 1832.[84] Growing
refinement of feeling has made people averse from the use of surgery
in the administration of justice; and in most European countries
grown-up offenders are no longer liable to corporal punishment of any
kind.[85]
[Footnote 65: _Supra_, p. 178. See also _Laws of [Hv]ammurabi_, 196,
197, 200; _Exodus_, xxi. 24 _sq._; _Leviticus_, xxiv. 19 _sq._;
_Deuteronomy_, xix. 21; _Koran_, v. 49; Sachau, _op. cit._ p. 762
_sq._ (Muhammedan law); Leist, _Alt-arisches Jus Gentium_, p. 426
_sq._ (Greeks); _Lex Duodecim Tabularum_, viii. 2; Günther, _Idee der
Wiedervergeltung_, p. 186 _sqq._ (Teutons).]
[Footnote 66: For its occurrence in modern Persia, see Polak,
_Persien_, i. 256, 329 _sq._; in Fez, see Leo Africanus, _History and
Description of Africa_, ii. 470. The Koran (v. 42) orders theft to be
punished by cutting off the hands of the thief, but this punishment is
now seldom practised in Muhammedan countries. Among the lower races I
have met only with a few instances of punishing the offending member.
In Ashanti intrigue with the female slaves of the royal household is
punished by emasculation (Ellis, _Tshi-speaking Peoples of the Gold
Coast_, p. 287); and the Kamchadales burn the hands of people who have
been frequently caught in theft (Krasheninnikoff, _op. cit._ p. 179).]
[Footnote 67: _Laws of [Hv]ammurabi_, 192, 194, 195, 218, 226, 253.]
[Footnote 68: _Laws of Manu_, viii. 270-272, 279-283, 322, 334, 374;
xi. 105.]
[Footnote 69: Günther, _op. cit._ i. 94 _sqq._]
[Footnote 70: _Ibid._ i. 155 _sqq._]
[Footnote 71: _Ibid._ i. 195 _sqq._ Wilda, _op. cit._ p. 510. Grimm,
_Deutsche Rechtsalterthümer_, p. 740.]
[Footnote 72: Du Boys, _Histoire du droit criminel des peuples
modernes_, ii. 699. _Idem_, _Histoire du droit criminel de l'Espagne_,
p. 94. Cibrario, _Economia politica del medio eve_, i. 346 _sq._]
[Footnote 73: _Laws of Alfred_, ii. 25.]
[Footnote 74: Bracton, _De Legibus et Consuetudinibus Angliæ_, fol.
147, vol. ii. 480 _sq._]
[Footnote 75: _Laws of Cnut_, ii. 54.]
[Footnote 76: _Laws of Æthelstan_, 14.]
[Footnote 77: Strutt, _View of the Manners, Customs, &c., of the
Inhabitants of England_, iii. 43.]
[Footnote 78: Erskine, _Principles of the Law of Scotland_, p. 571.]
[Footnote 79: Stemann, _op. cit._ p. 645. Charles V.'s _Peinliche
Gerichts Ordnung_, art. 107, p. 235. Pollock and Maitland, _History of
English Law before the Time of Edward I._ ii. 453. Günther, _op. cit._
ii. 57.]
[Footnote 80: Du Boys, _Histoire du droit criminel des peuples
modernes_, ii. 699. _Idem_, _Histoire du droit criminel de l'Espagne_,
p. 599 _sq._ Pitcairn, _Criminal Trials in Scotland_, iii. 539.]
[Footnote 81: Pollock and Maitland, _op. cit._ ii. 539.]
[Footnote 82: Rogers, _Social Life in Scotland_, ii. 35.]
[Footnote 83: Günther, _op. cit._ ii. 55-57, 65; iii. 79.]
[Footnote 84: Chauveau and Hélie, _Théorie du Code Pénal_, iii. 394.]
[Footnote 85: See von Liszt, _Le droit criminel des états européens_,
_passim_; Wrede, _Die Körperstrafen bei allen Völkern_, _passim_.]
Corporal punishment has generally been, by preference, a punishment
for poor and common people or slaves.[86] Blows and abusive language,
says Plutarch, seem to be more fitting for slaves than the
freeborn.[87] According to the religious law of the Hindus, a Brâhmana
shall not suffer corporal punishment for any offence.[88] Among the
Hebrews[89] and Muhammedans,[90] among the Romans[91] and in the
Middle Ages,[92] the punishment of mutilation could generally be
commuted to a fine. For a long period, in {523} Christian Europe, as
well as in Pagan Rome during the Empire,[93] the punishment was more
savage in proportion as the delinquent was more helpless. "En crimes,"
says Loysel, "les villains sont plus griévement punis en leurs corps
que les nobles. . . . Et où le vilain perdroit la vie, ou un membre de
son corps, le noble perdra l'honneur, et réponse en cour."[94] Indeed,
whilst the slave incurred the penalty of mutilation for the most
trifling offence, the noble might be exempted from corporal punishment
of any kind.[95] In a similar manner the social _status_ of a person
has influenced his right to bodily integrity with reference to
judicial torture. According to the Chinese Penal Code, "it shall not,
in any tribunal of government, be permitted to put the question by
torture to those who belong to any of the eight privileged classes, in
consideration of the respect due to their character."[96] In Rome,
under the Republic, torture was exclusively confined to the
slaves.[97] In mediæval Christendom it was made use of to an extent
and with a cold-blooded ferocity unknown to any heathen nation, and in
cases of heresy and treason it was applied to every class of the
community.[98] But the tortures inflicted on the nobles and the clergy
were lighter than in the case of ordinary laymen, and proof of a more
decided character was required to justify their being exposed to
torment.[99] "Noble persons and persons of quality," says Dumoulin,
"cannot so easily be subjected to torture as persons who are of mean
and plebeian rank."[100] Guazzini, an eminent Italian jurisconsult and
a recognised expositor of the law of torture in the days of its
highest ascendency and ripest maturity, observes that the torment
inflicted {524} on a person shall be proportionate to his age, his
physical constitution, his mental habits, and his social
_status_;[101] and he adds that bishops and others in high civil
dignity are exempt from torture even under strong presumptions of
guilt.[102]
[Footnote 86: See, for instance, the _Laws of Manu_, viii. 267, 279.]
[Footnote 87: Plutarch, _De educatione puerorum_, 12.]
[Footnote 88: _Baudhâyana_, i. 10. 18. 17. _Institutes of Vishnu_, v. 2.]
[Footnote 89: Günther, _op. cit._ i. 55.]
[Footnote 90: _Ibid._ i. 74 _sq._ Lane, _Manners and Customs of the
Modern Egyptians_, p. 120. Sachau, _op. cit._ p. 764. According to
Muhammedan law, it is not obligatory for the injured party to accept
compensation in lieu of mutilation.]
[Footnote 91: Günther, _op. cit._ i. 124 _sqq._ Mommsen, _Römisches
Strafrecht_, p. 981.]
[Footnote 92: Du Boys, _Histoire du droit criminel des peuples
modernes_, ii. 557 _sq._ Strutt, _op. cit._ ii. 8.]
[Footnote 93: _Cf._ Mackenzie, _Studies in Roman Law_, p. 414 _sq._]
[Footnote 94: Loysel, _Institutes coutumières_, vi. 2. 31 _sq._, vol.
ii. 219 _sq._]
[Footnote 95: Du Boys, _Histoire du droit criminel de l'Espagne_,
p. 469.]
[Footnote 96: _Ta Tsing Leu Lee_, sec. cccciv. p. 441.]
[Footnote 97: Mommsen, _Römisches Strafrecht_, p. 405.]
[Footnote 98: Suarez de Paz, _Praxis ecclesiastica et secularis_, v.
1. 3. 12, fol. 154 b. _Cf._ Lecky, _Rise and Influence of the Spirit
of Rationalism in Europe_, i. 328.]
[Footnote 99: Lea, _Superstition and Force_, p. 526 _sq._]
[Footnote 100: Dumoulin, quoted by Welling, 'Law of Torture,' in _The
American Anthropologist_, v. 210 _sq._]
[Footnote 101: Guazzini, _Tractatus ad defensam inquisitorum_, xxx. 4.
24, vol. ii. 86.]
[Footnote 102: _Ibid._ xxx. 17, vol. ii. 102 _sq._]
The moral notions regarding the infliction of bodily injuries require
little comment. They are based on the principle of sympathetic
resentment, modified by the ascription of particular rights to some
and particular duties to others, on account of the relation in which
the parties stand to each other; and they follow the same rules as the
ideas concerning homicide, to the exclusion, of course, of all such
considerations as result from fear of the slain man's ghost or from
the religious horror of taking life. One point, however, calls for
special attention. The forcible interference with another person's
body not only causes physical pain but commonly entails disgrace upon
the sufferer. This largely accounts for the fact that a person's right
to bodily integrity varies so much according to his social
standing.[103] Even among the lower races we meet with the notions
that an act of bodily violence involves a gross insult, and that
corporal punishment disgraces the criminal more than any other form of
penalty. According to the Malay Code, "the persons who may be put to
death without the previous knowledge of the king or nobles, are an
adulterer, a person guilty of treason, a thief who cannot otherwise be
apprehended, and a person who offers another a grievous affront, such
as a blow over the face."[104] Among the Maoris a blow with the fist
would lead to a combat with arms.[105] The Thlinkets consider corporal
punishment to {525} be the greatest indignity to which a freeman can
be subjected, hence they never inflict it.[106] And civilised nations
who are ready to punish certain criminals with death, hold whipping to
be a punishment too infamous to be employed.
[Footnote 103: _Cf._ _Dimetian Code_, ii. 17. 17 (_Ancient Laws and
Institutes of Wales_, p. 248): "The Law says that the limbs of all
persons are of equal worth; if a limb of the king be broken, that it
is of the same worth as the limb of the villain: yet, nevertheless,
the worth of saraad [or fine for insult] to the king, or to a breyr,
is more than the saraad of a villain, if a limb belonging to him be
cut." See also _Gwentian Code_, ii. 7. 12 _sq._ (_ibid._ p. 342).]
[Footnote 104: Crawfurd, _History of the Indian Archipelago_,
iii. 105 _sq._]
[Footnote 105: Shortland, _Traditions and Superstitions of the New
Zealanders_, p. 227.]
[Footnote 106: Holmberg, 'Ethnograph. Skizzen über die Völker des
russischen Amerika,' in _Acta Societatis Scientiarum Fennicæ_, iv. 321.]
CHAPTER XXIII
CHARITY AND GENEROSITY
IN previous chapters we have examined the regard for the life and
physical well-being of others as displayed in moral ideas concerning
homicide and the infliction of bodily harm. We shall now consider the
same subject from another point of view, namely, the valuation of such
conduct as positively promotes the existence and material comfort of a
fellow-creature.
There is one duty so universal and obvious that it is seldom
mentioned: the mother's duty to rear her children, provided that they
are suffered to live. Another duty--equally primitive, I believe, in
the human race--is incumbent on the married man: the protection and
support of his family. We hear of this duty from all quarters of the
savage world.
Among the North American Indians it was considered disgraceful for
a man to have more wives than he was able to maintain.[1] Mr. Powers
says that among the Patwin, a Californian tribe which he believes to
rank among the lowest in the world, "the sentiment that the men are
bound to support the women--that is to furnish the supplies--is
stronger even than among us."[2] Among the Iroquois it was the office
of the husband "to make a mat, to repair the cabin of his wife, or to
construct a new one." The product of his hunting expeditions, {527}
during the first year of marriage, belonged of right to his wife, and
afterwards he shared it equally with her, whether she remained in the
village, or accompanied him to the chase.[3] Among the Botocudos,
whose girls are married very young, remaining in the house of the
father till the age of puberty, the husband is even then obliged to
maintain his wife, though living apart from her.[4] Among the Lengua
Indians of the Paraguayan Chaco the child of a woman whose husband
deserts her is generally killed at birth, the mother feeling that it
is the man's part of married life to provide meat for his
offspring.[5] Azara states that, among the Charruas, "du moment où un
homme se marie, il forme une famille à part, et travaille pour la
nourrir."[6] Of the Fuegians it is said that, "as soon as a youth is
able to maintain a wife, by his exertions in fishing or bird-catching,
he obtains the consent of her relations."[7] The wretched Rock Veddahs
in Ceylon "acknowledge the marital obligation and the duty of
supporting their own families."[8] Among the Maldivians, "although a
man is allowed four wives at one time, it is only on condition of his
being able to support them."[9] The Nairs, we are told, consider it a
husband's duty to provide his wife with food, clothing, and
ornaments;[10] and almost the same is said by Dr. Schwaner with
reference to the tribes of the Barito district, in the south east part
of Borneo.[11] Among the cannibals of New Britain the chiefs have to
see that the families of the warriors are properly maintained.[12]
Concerning the Tonga Islanders Mariner states that "a married woman is
one who cohabits with a man, and lives under his roof and
protection."[13] Among the Maoris "the mission of woman was to
increase and multiply, that of man to defend his home."[14] With
reference to the Kurnai in South Australia, Mr. Howitt states that
"the man has to provide for his family with the assistance of his
wife. His share is to hunt for their support, and to fight for their
protection."[15] In Lado, in Africa, the bridegroom has to assure his
father-in-law three times that he will {528} protect his wife, calling
the people present to witness.[16] Among the Touareg a man who deserts
his wife is blamed, as he has taken upon himself the obligation of
maintaining her.[17]
[Footnote 1: Waitz, _Anthropologie der Naturvölker_, iii. 109. Carver,
_Travels through the Interior Parts of North America_, p. 367.]
[Footnote 2: Powers, _Tribes of California_, p. 222.]
[Footnote 3: Heriot, _Travels through the Canadas_, p. 338.]
[Footnote 4: von Tschudi, _Reisen durch Südamerika_, ii. 283.]
[Footnote 5: Hawtrey, in _Jour. Anthr. Inst._ xxxi. 295.]
[Footnote 6: Azara, _Voyages dans l'Amérique méridionale_, ii. 22.]
[Footnote 7: King and Fitzroy, _Voyages of the "Adventure" and
"Beagle,"_ ii. 182.]
[Footnote 8: Tennent, _Ceylon_, ii. 441.]
[Footnote 9: Rosset, 'Maldive Islands,' in _Jour. Anthr. Inst._ xvi.
168 _sq._]
[Footnote 10: Stewart, 'Notes on Northern Cachar,' in _Jour. Asiatic
Soc. Bengal_, xxiv. 614.]
[Footnote 11: Schwaner, _Borneo_, i. 199.]
[Footnote 12: Angas, _Polynesia_, p. 373.]
[Footnote 13: Mariner, _Natives of the Tonga Islands_, ii. 167.]
[Footnote 14: Johnston, _Maoria_, p. 28 _sq._]
[Footnote 15: Fison and Howitt, _Kamilaroi and Kurnai_, p. 206.]
[Footnote 16: Wilson and Felkin, _Uganda_, ii. 90.]
[Footnote 17: Chavanne, _Die Sahara_, p. 209. _Cf._ Hanoteau and
Letourneux, _La Kabylie_, ii. 167.]
Among many of the lower races a man is not even permitted to marry
until he has given some proof of his ability to support and protect
his family.[18] Indeed, so closely is the idea that a man is bound to
maintain his family connected with that of marriage and fatherhood,
that sometimes even repudiated wives with their children are, at least
to a certain extent, supported by their former husbands.[19] And upon
the death of a husband, the obligation of maintaining his wife and her
children devolves on his heirs, the wide-spread custom of a man
marrying the widow of his deceased brother being not only a privilege,
but, among several peoples, even a duty.[20]
[Footnote 18: Westermarck, _History of Human Marriage_, p. 18.]
[Footnote 19: _Ibid._ p. 19.]
[Footnote 20: _Ibid._ p. 511 _sq._]
Turning to peoples who have reached a higher stage of culture:--Abû
Shugâ[(] says that, among Muhammedans, parents are obliged to support
their families, "if the children are both poor and under age, or both
poor and lastingly infirm, or both poor and insane."[21] But that this
duty chiefly devolves on the father is evident from the fact that the
mother is even entitled to claim wages for nursing them.[22]
Buddhistic law goes so far as to prescribe that the parents shall
provide their son with a beautiful wife, and give him a share of the
wealth belonging to the family.[23] It has been observed that in the
Confucian books there is no mention of any real duties incumbent upon
the father towards his children;[24] nor does the Decalogue contain
anything on the subject; nor any law of ancient Greece or Rome.[25]
But, as has been justly {529} argued, if legal prescriptions are
wanting, that is because they are thought to be superfluous, nature
itself having sufficiently prepared men for the performance of their
duties towards their offspring.[26] So, also, it is regarded as a
matter of course that the husband shall support his wife, however
great power he may possess over her. Among the Romans _manus_ implied
not only the wife's subordination to the husband, but also the
husband's obligation to protect the wife.[27]
[Footnote 21: Sachau, _Muhammedanisches Recht_, p. 18.]
[Footnote 22: _Ibid._ p. 99 _sq._]
[Footnote 23: Hardy, _Manual of Budhism_, p. 495.]
[Footnote 24: Faber, _Digest of the Doctrines of Confucius_, p. 82.]
[Footnote 25: Leist, _Græco-italische Rechtsgeschichte_, p. 13.]
[Footnote 26: _Ibid._, p. 13. Schmidt, _Ethik der alten Griechen_, ii.
141. Adam Smith, _Theory of Moral Sentiments_, p. 199 _sq._]
[Footnote 27: Rossbach, _Untersuchungen über die römische Ehe_, p. 32.
_Cf._ _Laws of Manu_, ix. 74, 75, 95.]
The parents' duty of taking care of their offspring is, in the first
place, based on the sentiment of parental affection. That the maternal
sentiment is universal in mankind is a fact too generally admitted to
need demonstration; not so the father's love of his children. Savage
men are commonly supposed to be very indifferent towards their
offspring; but a detailed study of facts leads us to a different
conclusion. It appears that, among the lower races, the paternal
sentiment is hardly less universal than the maternal, although it is
probably never so strong and in many cases distinctly feeble. But more
often it displays itself with considerable intensity even among the
rudest savages. In the often-quoted case of the Patagonian chief who,
in a moment of passion, dashed his little son with the utmost violence
against the rocks because he let a basket of eggs which the father
handed to him fall down, we have only an instance of savage
impetuosity. The same father "would, at any other time, have been the
most daring, the most enduring, and the most self-devoted" in the
support and defence of his child.[28] Similarly the Central Australian
natives, in fits of sudden passion, when hardly knowing what they do,
sometimes treat a child with great severity; but as a rule, to which
there are very few exceptions, they are kind and considerate to their
children, the men as well as the women carrying them when they get
tired on the march, {530} and always seeing that they get a good share
of any food.[29] All authorities agree that the Australian Black is
affectionate to his children.[30] "From observation of various tribes
in far distant parts of Australia," says Mr. Howitt, "I can assert
confidently that love for their children is a marked feature in the
aboriginal character. I cannot recollect having ever seen a parent
beat or cruelly use a child; and a short road to the goodwill of the
parents is, as amongst us, by noticing and admiring their children. No
greater grief could be exhibited, by the fondest parents in the most
civilised community at the death of some little child, than that which
I have seen exhibited in an Australian native camp, not only by the
immediate parents, but by the whole related group."[31] Other
representatives of the lowest savagery, as the Veddahs[32] and
Fuegians,[33] are likewise described as tender parents. Though few
peoples have acquired a worse reputation for cruelty than the Fijians,
even the greatest censurer of their character admits that the
exhibition of parental love among them "is sometimes such as to be
worthy of admiration";[34] whilst, according to another authority, "it
is truly touching to see how parents are attached to their
children."[35] The Bangala of the Upper Congo, "swayed one moment by a
thirst for blood and indulging in the most horrible orgies, . . . may
yet the next be found approaching their homes looking forward with
{531} the liveliest interest to the caresses of their wives and
children."[36] Carver asserts that he never saw among any other people
greater proofs of parental or filial tenderness than among the North
American Naudowessies.[37] Among the Point Barrow Eskimo "the
affection of parents for their children is extreme";[38] and the same
seems to be the case among the Eskimo in general.[39] Concerning the
Aleuts Veniaminof wrote long ago:--"The children are often well fed
and satisfied, while the parents almost perish with hunger. The
daintiest morsel, the best dress, is always kept for them."[40] Mr.
Hooper, again, found parental love nowhere more strongly exemplified
than among the Chukchi; "the natives absolutely doat upon their
children."[41] Innumerable facts might indeed be quoted to prove that
parental affection is not a late product of civilisation, but a normal
feature of the savage mind as it is known to us.[42]
[Footnote 28: King and Fitzroy, _op. cit._ ii. 155. _Cf._ _ibid._ ii.
154; Musters, _At Home with the Patagonians_, p. 196 _sq._]
[Footnote 29: Spencer and Gillen, _Native Tribes of Central
Australia_, p. 50 _sq._]
[Footnote 30: Curr, _The Australian Race_, i. 402; iii. 155. _Idem_,
_Recollections of Squatting in Victoria_, p. 252. Angas, _Savage Life
and Scenes in Australia_, i. 94. Brough Smyth, _Aborigines of
Victoria_, i. 51; ii. 311. Ridley, _Aborigines of Australia_, p. 23.
Eyre, _Journals of Expeditions of Discovery into Central Australia_,
ii. 214 _sq._ Sturt, _Expedition into Central Australia_, ii. 137.
Calvert, _Aborigines of Western Australia_, p. 30 _sq._ Taplin,
'Narrinyeri,' in Woods, _Native Tribes of South Australia_, p. 15.
Gason, 'Manners and Customs of the Dieyerie Tribe,' _ibid._ p. 258.
Hill and Thornton, _Aborigines of New South Wales_, pp. 2, 4. Fraser,
_Aborigines of New South Wales_, pp. 2, 44. Lumholtz, _Among
Cannibals_, p. 193.]
[Footnote 31: Fison and Howitt, _op. cit._ p. 189. _Cf._ _ibid._ p. 259.]
[Footnote 32: Bailey, 'Wild Tribes of the Veddahs of Ceylon,' in
_Trans. Ethn. Soc._ N.S. ii. 291. Deschamps, _Carnet d'un voyageur au
pays des Veddas_, p. 380.]
[Footnote 33: King and Fitzroy, _op. cit._ i. 76; ii. 186. Weddell,
_Voyage towards the South Pole_, p. 156. Pertuiset, _Le Trésor des
Incas à la Terre de Feu_, p. 217.]
[Footnote 34: Williams and Calvert, _Fiji and the Fijians_, p. 116.]
[Footnote 35: Seemann, _Viti_, p. 193. _Cf._ _ibid._ p. 194.]
[Footnote 36: Ward, _Five Years with the Congo Cannibals_, p. 141.
_Cf._ _ibid._ p. 139.]
[Footnote 37: Carver, _op. cit._ p. 240 _sq._ _Cf._ _ibid._ p. 378 _sq._]
[Footnote 38: Murdoch, 'Ethnological Results of the Point Barrow
Expedition,' in _Ann. Rep. Bur. Ethn._ ix. 417.]
[Footnote 39: Hall, _Arctic Researches_, p. 568. Parry, _Second Voyage
for the Discovery of a North-West Passage_, p. 529. Boas, 'Central
Eskimo,' in _Ann. Rep. Bur. Ethn._ vi. 566. Turner, 'Ethnology of the
Ungava District,' _ibid._ xi. 191. Seemann, _Voyage of "Herald,"_ ii.
65. Cranz, _History of Greenland_, i. 174.]
[Footnote 40: Veniaminof, quoted by Dall, _Alaska_, p. 397. _Cf._
_ibid._ p. 393; Petroff, 'Report on Alaska,' in _Tenth Census of the
United States_, p. 158.]
[Footnote 41: Hooper, _Ten Months among the Tents of the Tuski_, p. 201.]
[Footnote 42: Dobrizhoffer, _Account of the Abipones_, ii. 214 _sq._
Wied-Neuwied, _Reise nach Brasilien_, ii. 40 (Botocudos). Wallace,
_Travels on the Amazon_, p. 518 _sq._ (Amazon Indians; but on the
Brazilian Indians generally, _cf._ von Martius, in _Jour. Roy. Geo.
Soc._ ii. 198, and _Idem_, _Beiträge zur Ethnographie Amerika's_, i.
125). Im Thurn, _Among the Indians of Guiana_, pp. 213, 219.
MacCauley, 'Seminole Indians of Florida,' in _Ann. Rep. Bur. Ethn._ v.
491. Dunbar, 'Pawnee Indians,' in **_Magazine of American History_,
viii. 745. Catlin, _North American Indians_, ii. 242. Ten Kate,
_Reizen en onderzoekingen in Noord-Amerika_, p. 364 _sq._ Sproat,
_Scenes and Studies of Savage Life_, p. 160 (Ahts). Franklin,
_Journey to the Shores of the Polar Sea_, p. 68 (Crees). Elliott,
'Report on the Seal Islands,' in _Tenth Census of the United States_,
p. 238. Krasheninnikoff, _History of Kamschatka_, p. 232 (Koriaks).
Georgi, _Russia_, i. 25 (Laplanders); iii. 13 (Tunguses), 158
(Kamchadales). Castrén, _Nordiska resor och forskningar_, ii. 121
(Ostyaks). Prejevalsky, _Mongolia_, i. 71. Scott Robertson, _Káfirs of
the Hindu-Kush_, p. 189. Blunt, _Bedouin Tribes of the Euphrates_, ii.
214. Dalton, _Desiriptive Ethnology of Bengal_, p. 68 (Garos).
Marshall, _A Phrenologist amongst the Todas_, p. 200; Shortt, 'Hill
Tribes of the Neilgherries,' in _Trans. Ethn. Soc._ N.S. vii. 254
(Todas). Kloss, _In the Andamans and Nicobars_, p. 228 (Nicobarese).
Man, _Sonthalia and the Sonthals_, p. 78. Wallace, _Malay
Archipelago_, p. 450 (Malays). Schwaner, _op. cit._ i. 162 (Malays of
the Barito River Basin in Borneo). Low, _Sarawak_, p. 148 (Malays).
Bock, _Head-Hunters of Borneo_, p. 210 (Dyaks). Ling Roth, _Natives of
Sarawak and British North Borneo_, i. 68 (Land Dyaks). Forbes, _A
Naturalist's Wanderings in the Eastern Archipelago_, p. 321 (natives
of Timor-laut). Forbes, _Insulinde_, p. 182 (natives of Ritobel)
Seligmann, in _Reports of the Cambridge Anthropological Expedition to
Torres Straits_, v. 199; Haddon, _ibid._ v. 229, 274 (Western
Islands). Romilly, _From my Verandah in New Guinea_, p. 51. Chalmers,
_Pioneering in New Guinea_, p. 163. Christian, _Caroline Islands_, p.
72 (Ponapeans). Kubary, 'Die Bewohner der Mortlock Inseln,' in
_Mittheilungen der Geogr. Gesellsch. in Hamburg_, 1878-9, p. 261.
Macdonald, _Oceana_, p. 195 (Efatese). Turner, _Samoa_, p. 317
(natives of Tana), von Kotzebue, _Voyage of Discovery_, iii. 165
(Natives of Radack). Mariner, _op. cit._ ii. 179 (Tongans).
Dieffenbach, _Travels in New Zealand_, ii. 26, 107; Crozet, _Voyage to
Tasmania_, p. 66 (Maoris). Dove, 'Aborigines of Tasmania,' in
_Tasmanian Journal of Natural Science_, i. 252. Reade, _Savage
Africa_, p. 245 (Equatorial Africans). Casati, _Ten Years in
Equatoria_, i. 186 (Central African Negroes). Caillié, _Travels
through Central Africa_, i. 352 (Mandingoes). Holub, _Seven Years in
South Africa_, ii. 296 (Marutse). Livingstone, _Missionary Travels_,
p. 126 (Bechuanas). Johnston, _Uganda Protectorate_, ii. 539
(Pigmies). Sparrman, _Voyage to the Cape of Good Hope_, i. 219
(Hottentots). Shaw, 'Betsileo Country and People,' in _Antananarivo
Annual and Madagascar Magazine_, iii. 82. See also _supra_, p. 405;
Steinmetz, 'Verhältnis zwischen Eltern und Kindern bei den
Naturvölkern,' in _Zeitschrift für Socialwissenschaft_, i. 610 _sqq._;
_Idem_, _Ethnologische Studien zur ersten Entwicklung der Strafe_, ii.
ch. vi. §2.]
{532} When dealing with the origin of the altruistic sentiment we
shall find reason to believe that paternal affection not only prevails
among existing men, savage and civilised, but that it belonged to the
human race from the very beginning, and that the same was the case
with the germ of marital affection, inducing the male to remain with
the female till after the birth or the offspring, and to defend and
support her during the periods of pregnancy and motherhood. It is true
that among several savage peoples conjugal love is said to be unknown;
but what is meant by this is, I think, typically expressed in Major
Ellis's statement referring to some Gold Coast natives, that among
them "love, as understood by the people of Europe, has no
existence."[43] The love of a savage is certainly very different from
the love of a civilised man; nevertheless we may discover in it traces
of the same ingredients. Even rude savages, such as the Bushmans,
Fuegians, Andaman Islanders, and Australian aborigines, seem often to
be lovingly attached to their wives.[44]
[Footnote 43: Ellis, _Tshi-speaking Peoples of the Gold Coast_, p.
285. I have dealt with this subject in my _History of Human Marriage_,
p. 356 _sqq._]
[Footnote 44: _Ibid._ p. 358 _sq._]
{533} The prevalence of paternal and marital affection accounts for
the origin of the family (consisting of parents and children), and for
the functions of the man as father and husband. The growing intensity
of these sentiments has naturally increased the stability of the
family tie; and other factors, of a selfish nature, have contributed
towards the same result. From various points of view it is desirable
for a man to have children. They are to him objects of pride; when
grown-up, they add to his safety and power; they support him when he
gets old; they make offerings to his spirit when he is dead. And no
less useful is the possession of a wife. When the generative power is
no longer restricted to a certain season of the year, she becomes a
lasting cause of sensual delight; she is a mother of children; she
manages the household; she acts as a carrier, she works in the field.
Every social institution has a tendency to become a matter of moral
concern because of the persistence of habit. But the simplest paternal
and marital duties have a deeper foundation than the mere force of the
habitual. If a man leaves his wife and children without protection and
support, the other members of the community will sympathise with them,
and feel resentment towards the neglectful husband and father. He will
be looked upon as the cause of their sufferings, because he omitted to
do what other men in his position would have done. His conduct will be
repulsive to everyone who himself possesses those sentiments of which
he proves destitute. He will be held guilty of a breach of contract,
since by marrying he took upon himself the burden of maintaining his
wife and their common offspring. To thoughtful minds his
responsibility towards his children is further increased by the fact
that he is the author of their being, and for that reason the source
of their misery. Finally, the community as a whole will suffer by his
negligence.
The parents' duty of taking care of their offspring lasts until the
latter are able to shift for themselves. On the other hand, when the
parents, in their turn, get in need of {534} support, their care is to
be reciprocated by the children. The practice of killing or abandoning
decrepit parents is an exception even in the savage world, and, as we
have seen, restricted to extreme cases in which it may be regarded as
an act of kindness or of hard necessity. There are always savage
peoples among whom aged parents, though suffered to live, are said to
be grossly neglected by their children. But, so far as I know, these
peoples are not numerous, and can hardly be regarded as
representatives of a custom common to any larger ethnic group.
Thus, according to Hearne, "old age is the greatest calamity that
can befall a Northern Indian; for when he is past labour, he is
neglected, and treated with great disrespect, even by his own
children. They not only serve him last at meals, but generally give
him the coarsest and worst of the victuals; and such of the skins as
they do not chuse to wear, are made up in the clumsiest manner into
clothing for their aged parents."[45] Yet among the same people
Richardson witnessed "several unquestionable instances of tenderness
and affection shown by children to their parents, and of compliance
with their whims, much to their own personal inconvenience."[46] In
his work on the tribes of California Mr. Powers observes:--"filial
piety cannot be said to be a distinguishing quality of the Wailakki,
or, in fact, of any Indians. No matter how high may be their station,
the aged and decrepit are counted a burden. The old man, hero of a
hundred battles, sometime 'lord of the lion heart and eagle eye,' when
his fading eyesight no more can guide the winged arrow as of yore, is
ignominiously compelled to accompany his sons into the forest, and
bear home on his poor old shoulders the game they have killed."[47]
But concerning the Indians of Upper California Beechey writes, "When
any of their relations are indisposed, the greatest attention is paid
to their wants, and it was remarked by Padre Arroyo that filial
affection is stronger in these tribes than in any civilised nation on
the globe with which he was acquainted."[48] Among the Indians on the
east side of the Rocky Mountains, "the aged are commonly treated with
much respect, which they consider themselves as entitled to claim";
and they "are not suffered to want any thing which they need, and
which {535} it is in the power of their relations to procure for
them."[49] The religious teachers of the Iroquois inculcated the duty
of protecting aged parents, as divinely enjoined:--"It is the will of
the Great Spirit that you reverence the aged, even though they be as
helpless as infants."[50] The Aleuts described by Veniaminof
considered disregard of one's parents to be the greatest and most
dishonourable of crimes; "we should sincerely love them," they said,
"do all we could toward their support, remain with them, and care for
them until their death."[51] The children of the Central Eskimo are
very dutiful, obeying the wishes of their parents and taking care of
them in their old age;[52] and statements to the same effect are made
with reference to other Eskimo tribes.[53] Cranz, who did not
generally panegyrise the moral qualities of the Greenlanders, wrote
that the bonds of filial and parental love seem stronger in them than
amongst other nations, and that "ingratitude in up-grown children
towards their old decrepit parents, is scarcely exemplified among
them."[54] Among the Botocudos Prince Wied-Neuwied saw a young man
carrying about his blind father, not leaving him alone for a single
moment.[55] Among the Fuegians "grown-up children are expected to
support their parents when they become aged; the son generally makes
his father, if he is past work, a canoe every season, and if the aged
man is a widower he lives entirely under the charge of his eldest
son."[56] The Australian natives are much praised for the regard with
which they treat their parents and elders. With reference to the
Western tribes, Bishop Salvado observes:--"Les fils adultes payent de
retour l'affection de leurs parents. S'ils sont vieux, ils réservent
pour eux les meilleurs pièces de gibier, ou de tout autre mets, et se
chargent de venger leurs offenses."[57] Among the Kukis of India,
"when past work, the father and mother are supported by their
children."[58] Among the Bódo and Dhimáls "it is {536} deemed shameful
to leave old parents entirely alone; and the last of the sons, who by
his departure does so, is liable to fine as well as disinheritance."[59]
Among the Betsileo of Madagascar "the old are never left destitute or
to their own devices. . . . It is by no means uncommon to see the son
carrying the aged parent on his back, when necessity or inclination
demands locomotion."[60] Among the Mandingoes "the aged who are unable
to support themselves are always maintained and treated with respect
by their children."[61] That uncivilised races commonly regard it a
stringent duty for children to maintain their aged parents and to
administer to their wants, is also obvious from statements testifying
their filial regard in general terms.[62] On the other hand, the fact
that some peoples are said to be deficient in this sentiment, does not
imply that they fail to recognise the simple duty of supporting old
and helpless parents.
[Footnote 45: Hearne, _Journey to the Northern Ocean_, p. 345 _sq._]
[Footnote 46: Richardson, _Arctic Searching Expedition_, ii. 17.]
[Footnote 47: Powers, _op. cit._ p. 118 _sq._]
[Footnote 48: Beechey, _Voyage to the Pacific and Behring's Strait_,
ii. 402.]
[Footnote 49: Harmon, _Voyages and Travels in the Interior of North
America_, p. 348.]
[Footnote 50: Morgan, _League of the Iroquois_, p. 171.]
[Footnote 51: Veniaminof, quoted by Petroff, _loc. cit._ p. 155.]
[Footnote 52: Boas, 'Central Eskimo,' in _Ann. Rep. Bur. Ethn._
vi. 566.]
[Footnote 53: Murdoch, 'Point Barrow Expedition,' in _Ann. Rep. Bur.
Ethn._ ix. 417. Turner, 'Ungava District,' _ibid._ xi. 191.]
[Footnote 54: Cranz, _op. cit._ i. 174, 150. _Cf._ Egede, _Description
of Greenland_, p. 147; Holm, 'Ethnologisk Skizze af Angmagsalikerne,'
in _Meddelelser om Grönland_, x. 93.]
[Footnote 55: Wied-Neuwied, _op. cit._ ii. 40.]
[Footnote 56: Bridges, 'Manners and Customs of the Firelanders,' in _A
Voice for South America_, xiii. 206.]
[Footnote 57: Salvado, _Mémoires historiques sur l'Australie_, p. 277.
_Cf._ Curr, _The Australian Race_, iii. 155; Gason, 'Dieyerie Tribe,'
in Woods, _Native Tribes of South Australia_, p. 258; Mathew,
'Australian Aborigines,' in _Jour. & Proceed. Roy. Soc. N. S. Wales_,
xxiii. 388.]
[Footnote 58: Lewin, _Wild Races of South-Eastern India_, p. 256.]
[Footnote 59: Hodgson, _Miscellaneous Essays_, i. 123.]
[Footnote 60: Shaw, in _Antananarivo Annual_, iii. 82.]
[Footnote 61: Caillié, _op. cit._ i. 352.]
[Footnote 62: See _infra_, on the Subjection of Children.]
At a higher stage of civilisation reverence for parents reaches its
pitch, and the duty of maintaining them in their old age is taken for
a matter of course. Among the present Hindus "it would certainly be
regarded as a most disgraceful thing were a man who could do anything
for the support of an aged father or mother to allow the burden of
their maintenance to fall on strangers";[63] and it is common for
unmarried soldiers to stint themselves almost to starvation point,
that they may send home money to their parents.[64] The priesthood of
modern Buddhism teach that children shall "respect their parents, and
perform all kinds of offices for them, even though they should have
servants whom they could command to do all that they require."[65] At
ancient Athens, before a man could become a magistrate, evidence was
to be produced that he had treated his parents properly; and a person
who refused his parents food and dwelling lost his right of speaking
in the national assembly.[66] According to {537} the Icelandic Grágás,
a man should maintain in the first place his mother, in the second his
father, in the third his own children.[67] The Talmud enjoins the duty
of maintaining parents;[68] and so does Muhammedan law, "if the
parents are both poor and lastingly infirm, or both poor and
insane."[69]
[Footnote 63: Wilkins, _Modern Hinduism_, p. 418.]
[Footnote 64: Monier Williams, _Indian Wisdom_, p. 440, n. 1.]
[Footnote 65: Hardy, _op. cit._ p. 494. _Cf._ _ibid._ p. 495.]
[Footnote 66: Schmidt, _Ethik der alten Griechen_, ii. 144.]
[Footnote 67: _Grágás_, Omaga-balkr, 1, vol. i. 232.]
[Footnote 68: Katz, _Der wahre Talmudjude_, p. 119.]
[Footnote 69: Sachau, _op. cit._ p. 17 _sq._]
Christianity, as will be shown, in one essential point changed the
notions of antiquity regarding children's duties towards their
parents: it made these duties subordinate to men's duties towards God.
"Verily I say unto you, There is no man that hath left house, or
brethren, or sisters, or father, or mother, or wife, or children, or
lands, for my sake, and the gospel's, but he shall receive an
hundredfold now in this time, houses, and brethren, and sisters, and
mothers, and children, and lands, with persecutions; and in the world
to come eternal life."[70] There are numerous legends and lives of
saints in which the desertion of the nearest relations is recorded as
one of the leading features of their sanctity, and as one of their
chief titles to honour.[71] Some Catholic writers were of opinion that
a man might lawfully abandon his parents, even though they could not
be supported without him, and enter religion, committing the care of
them to God. But Thomas Aquinas says that this would be tempting God,
adding however that he who has already professed religion "ought not,
on any plea of supporting his parents, to quit the cloister in which
he is buried with Christ, and entangle himself again in worldly
business."[72] Yet our duties towards our parents come next to our
duties towards God. We ought to aid them when in want, and to
supplicate God in their behalf that they may lead prosperous and happy
lives.[73]
[Footnote 70: _St. Mark_, x. 29 _sq._]
[Footnote 71: _Cf._ Farrer, _Paganism and Christianity_, p. 196.]
[Footnote 72: Thomas Aquinas, _Summa Theologica_, ii.-ii. 101. 4.]
[Footnote 73: _Catechism of the Council of Trent_, iii. 5. 10 _sq._]
The duty of supporting aged parents has its root in {538} the
sentiments of affection, gratitude, and regard, and, to some extent,
in superstitious fear. However feeble they be, the parents have in
their hands a powerful weapon--the curse; or, when they are dead,
their ghosts may avenge their wrongs on their neglectful children. All
these circumstances will be discussed in the chapter dealing with the
subjection of children.
We have further to consider the duty of assisting brothers and sisters
and more distant relatives. Among the Aleuts, says Veniaminof, a
brother "must always aid his brother in war as well as in the chase,
and each protect the other; but if anybody, disregarding this natural
law, should go to live apart, caring only for himself, such a one
should be discarded by his relatives in case of attack by enemies or
animals, or in time of storms; and such dishonourable conduct would
lead to general contempt."[74] Among the Point Barrow Eskimo "the
older children take very good care of the smaller ones";[75] and of
the Sia Indians (Pueblos) we are told that "a marked trait is their
loving kindness and care for younger brothers and sisters."[76] Dr.
Schweinfurth writes:--"Notwithstanding . . . that certain instances
may be alleged which seem to demonstrate that the character of the
Dinka is unfeeling, these cases never refer to such as are bound by
the ties of kindred. Parents do not desert their children, nor are
brothers faithless to brothers, but are ever prompt to render whatever
aid is possible."[77] I presume that these examples of fraternal
relations may, on the whole, be regarded as expressive of universal
facts. According to Confucius, the love which brother should bear to
brother is second only to that which is due from children to
parents.[78]
[Footnote 74: Veniaminof, quoted by Petroff, _loc. cit._ p. 155.]
[Footnote 75: Murdoch, in _Ann. Rep. Bur. Ethn._ ix. 417.]
[Footnote 76: Stevenson, 'Sia,' in _Ann. Rep. Bur. Ethn._ xi. 22.]
[Footnote 77: Schweinfurth, _Heart of Africa_, i. 169.]
[Footnote 78: Douglas, _Confucianism and Taouism_, p. 123.]
The duty of assisting more distant relatives is much more variable. It
may be said that, as a general rule, among {539} savages and
barbarians--with the exception, perhaps, of those who live in small
family-groups--as also among the peoples of archaic culture, this duty
is more prominent and extends further than amongst ourselves. The
blood-tie has much greater strength, related families keep more
closely together for mutual protection and aid. The Angmagsaliks of
Eastern Greenland, says Lieutenant Holm, consider that the tie of
blood imposes mutual assistance as a duty under all circumstances.[79]
The Omahas maintain that "generosity cannot be exercised toward
kindred, who have a natural right to our assistance."[80] Among the
natives of Madagascar "the claims of relationship are distinctly
recognised by custom and law. If one branch of a family becomes poor,
the members of the same family support him; if he be sold into slavery
for debt, they often unite in furnishing the price of his redemption.
. . . The laws facilitate and encourage, and sometimes even enforce,
such acts of kindness."[81] In his description of the Australian
Bangerang, Mr. Curr observes, "Though their ways were different from
ours, it always seemed to me that the bonds of friendship between
blood relations were stronger, as a rule, with savages than amongst
ourselves."[82] Among the Philippine Islanders "families are very
united, and claims for help and protection are admitted, however
distant the relationship may be."[83] Of the Burmans it is said, "No
people can be more careful in preserving and acknowledging the bonds
of family relationship to the remotest degrees, and not merely as a
matter of form, but as involving the duty of mutual assistance."[84]
Among the ancient Hindus, Persians, Greeks, and Romans, persons
belonging to the four generations of near relatives--the Sapindas,
Syngeneis, Anchisteis, or Propinqui--were expected to assist {540}
each other whenever it was needed.[85] The Scandinavians considered
him to be a bad man who did not help his kindred against strangers,
even though there was enmity between the relatives.[86]
[Footnote 79: Holm, in _Meddelelser om Grönland_, x. 87.]
[Footnote 80: Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._
iii. 274.]
[Footnote 81: Ellis, _History of Madagascar_, i. 138. _Cf._ Sibree,
_The Great African Island_, p. 256 _sq._]
[Footnote 82: Curr, _Recollections of Squatting in Victoria_, p. 274.]
[Footnote 83: Foreman, _Philippine Islands_, p. 186.]
[Footnote 84: Forbes, _British Burma_, p. 59.]
[Footnote 85: Leist, _Alt-arisches Jus Civile_, i. 47 _sqq._, 231 _sqq._]
[Footnote 86: Rosenberg, _Nordboernes Aandsliv_, i. 488.]
But the duty of helping the needy and protecting those in danger goes
beyond the limits of the family and the _kin_. Uncivilised peoples
are, as a rule, described as kind towards members of their own
community or tribe. Between themselves charity is enjoined as a duty,
and generosity is praised as a virtue. Indeed, their customs regarding
mutual aid are often much more stringent than our own. And this
applies even to the lowest savages.[87]
[Footnote 87: The prevalence of mutual aid in uncivilised communities
has been duly emphasised by Prince Kropotkin, _Mutual Aid_, p. 76 _sqq._]
"La disposition à la générosité," says M. Hyades, "est un trait
charactéristique des Fuégiens. Ils aiment à partager ce qu'ils ont
avec tous ceux qui les entourent."[88] Captain Weddell likewise speaks
of "the philanthropic principle which these people exhibit towards one
another."[89] Burchell tells us that the Bushmans, between themselves,
"exercise the virtues of hospitality and generosity, often in an
extraordinary degree."[90] The Veddahs of Ceylon are friendly towards
each other, and ready to help a person in distress.[91] The Andamanese
display much mutual affection in their social relations, and
frequently make presents of the best that they possess. "Every care
and consideration," says Mr. Man, "are paid by all classes to the very
young, the weak, the aged, and the helpless, and these, being made
special objects of interest and attention, invariably fare better in
regard to the comforts and necessaries of daily life than any of the
otherwise more fortunate members of the community."[92] The Australian
natives are almost universally praised for their friendly behaviour
towards persons {541} belonging to their own people.[93] Presents
given to one of a group are speedily divided as far as possible among
the rest, and when a black man has employment at a station he
generally gives away most of his earnings to his comrades in the
camp.[94] "Between the males of a tribe," says Mr. Curr, "there always
exists a strong feeling of brotherhood, so that, come weal come woe, a
man can always calculate on the aid, in danger, of every member of his
tribe."[95] Regarding the Central Australian natives, Messrs. Spencer
and Gillen observe that their treatment of one another "is marked on
the whole by considerable kindness, that is, of course, in the case of
members of friendly groups, with every now and then the perpetration
of acts of cruelty."[96] Collins says that the aborigines about Botany
Bay and Port Jackson "applauded acts of kindness and generosity, for
of both these they were capable."[97]
[Footnote 88: Hyades and Deniker, _Mission scientifique du Cap Horn_,
vii. 243.]
[Footnote 89: Weddell, _op. cit._ p. 168. According to other
authorities, the Fuegians, though free from malevolence and cruelty,
are not distinguished for active benevolence (Bridges, in _A Voice for
South America_, xiii. 208, 213. Bove, _Patagonia_, pp. 133, 137.
Lovisato, 'Appunti etnografici sulla Terra del Fuoco,' in _Cosmos di
Guida Cora_, viii. 145, 151. _Cf._ also Hyades and Deniker, _op. cit._
vii. 238, 240, 243 _sq._).]
[Footnote 90: Burchell, _Travels in the Interior of Southern Africa_,
ii. 54.]
[Footnote 91: Sarasin, _Ergebnisse naturwissenschaftlicher Forschungen
auf Ceylon_, iii. 545, 550. Schmidt, _Ceylon_, p. 276.]
[Footnote 92: Man, in _Jour. Anthr. Inst._ xii. 93 _sq._ _Cf._
Portman, _ibid._ xxv. 368.]
[Footnote 93: Curr, _The Australian Race_, i. 49. Hodgson,
_Reminiscences of Australia_, p. 88. Oldfield, 'Aborigines of
Australia,' in _Trans. Ethn. Soc._ N.S. iii. 226. Eyre, _op. cit._ ii.
385 _sq._ Brough Smyth, _op. cit._ ii. 279. Lumholtz, _Among
Cannibals_, p. 176. Mathew, in _Jour. & Proceed. Roy. Soc. N.S.
Wales_, xxiii. 387 _sq._ Breton, _Excursions in New South Wales_, p.
218. Fison and Howitt, _op. cit._ p. 259. Wyatt, 'Manners and
Superstitions of the Adelaide and Encounter Bay Aboriginal Tribes,' in
Woods, _Native Tribes of South Australia_, p. 162. Schuermann,
'Aboriginal Tribes of Port Lincoln,' _ibid._ pp. 243, 244,
247.]
[Footnote 94: Schuermann, _loc. cit._ p. 244. Ridley, _Kámilarói_, p.
158. Fison and Howitt, _op. cit._ p. 256. Lumholtz, _Among Cannibals_,
pp. 199, 343. Stirling, _Report of the Horn Expedition to Central
Australia. Part IV. Anthropology_, p. 36.]
[Footnote 95: Curr, _The Australian Race_, i. 62.]
[Footnote 96: Spencer and Gillen, _Native Tribes of Central
Australia_, p. 50.]
[Footnote 97: Collins, _English Colony in New South Wales_, i. 549.]
Passing to savages and barbarians who have reached a somewhat
higher level of culture:--We are told by Mr. Catlin, with reference to
the North American Indians, that, "to their friends, there are no
people on earth that are more kind."[98] According to Adair, "they are
very kind and liberal to every one of their own tribe, even to the
last morsel of food they enjoy"; Nature's school "teaches them the
plain easy rule, 'do to others, as you would be done by.'"[99] Harmon
praises the generosity of the Indians:--"They are more ready, in
proportion to their means, to assist a neighbour who may be in want,
than the inhabitants, generally, of civilised countries. An Indian
rarely kills an animal, without sending a part of it to a neighbour if
he has one near him."[100] The Naudowessies "supply the deficiency of
their friends with any superfluity of their own," and "in dangers they
readily give assistance to those of their band {542} who stand in need
of it, without any expectation of return."[101] Among the Iroquois
"kindness to the orphan, hospitality to all, and a common brotherhood,
were among the doctrines held up for acceptance by their religious
instructors"; an Iroquois "would surrender his dinner to feed the
hungry, vacate his bed to refresh the weary, and give up his apparel
to clothe the naked."[102] Among the Omahas grades of merit or bravery
were of two sorts: to the first class belonged such as had given to
the poor on many occasions, and had invited guests to many feasts. To
the second class belonged those who, besides having done these things
many times, had killed several of the foe, and had brought home many
horses. When a person sees a poor man or woman, they said, he should
make presents to the unfortunate being; thus he can gain the goodwill
of Wakanda as well as that of his own people.[103] The Ahts of
Vancouver Island succour any one in need of help, without looking for
any ulterior benefit.[104] The Aleuts were instructed to be kind to
others and to refrain from selfishness; it was the custom for the
successful hunter or fisher, particularly in times of scarcity, to
share his prize with all, not only taking no larger share, but often
less than the others.[105] Among the Eskimo about Behring Strait,
whenever a successful trader accumulates property and food, and is
known to work solely for his own welfare, he becomes an object of
enmity and hatred among his fellow-villagers, which ends in one of two
ways--the villagers may compel him to make a feast and distribute his
goods, or they may kill him and divide his property among
themselves.[106] According to the Greenland creed, all those who had
striven and suffered for the benefit of their fellow-men should find a
happy existence after death in the abodes of the supreme being,
Tornarsuk.[107] "The Greenlander," says Dr. Nansen, "is the most
compassionate of creatures with regard to his neighbour. His first
social law is to help others."[108] Captain Hall holds an equally
favourable opinion of those Eskimo with whom he came in contact. "As
between themselves," he says, "there can be no people exceeding them
in this virtue kindness of heart. Take, for instance, times of great
scarcity of food. If one family happens to have any provisions on
{543} hand, these are shared with all their neighbours. If one man is
successful in capturing a seal, though his family may need it all to
save them from the pangs of hunger, yet the whole of his people about,
including the poor, the widow, the fatherless, are at once invited to
a seal-feast."[109] They believe that all Innuits who have been good,
"that is, who have been kind to the poor and hungry," will after death
go to Koodleparmiung, or heaven, whereas those who have been bad,
"that is, unkind to one another," will go to Adleparmeun, or
hell.[110] Many of the South American peoples are praised for their
kind disposition of mind;[111] the Guiana Indians seemed to a
Christian missionary to be "generous to a fault."[112] The Caribs had
all their interests in common, lived in great harmony, and loved each
other heartily.[113]
[Footnote 98: Catlin, _North American Indians_, ii. 241.]
[Footnote 99: Adair, _History of the American Indians_, pp. 431, 429.]
[Footnote 100: Harmon, _op. cit._ p. 349.]
[Footnote 101: Carver, _op. cit._ p. 247.]
[Footnote 102: Morgan, _League of the Iroquois_, pp. 172, 329.]
[Footnote 103: Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._
iii. 333, 274. _Cf._ _Idem_, 'Siouan Sociology,' _ibid._ xv. 232
(Kansas).]
[Footnote 104: Sproat, _op. cit._ p. 166.]
[Footnote 105: Veniaminof, quoted by Petroff, _loc. cit._ p. 155, and
Dall, _Alaska_, p. 392.]
[Footnote 106: Nelson, 'Eskimo about Bering Strait,' in _Ann. Rep.
Bur. Ethn._ xviii. 305.]
[Footnote 107: Rink, _Greenland_, p. 141.]
[Footnote 108: Nansen, _First Crossing of Greenland_, ii. 304. _Cf._
_ibid._ ii. 334; Nansen, _Eskimo Life_, pp. 116, 177; Egede, _op.
cit._ pp. 123, 126 _sq._]
[Footnote 109: Hall, _Arctic Researches_, p. 567.]
[Footnote 110: _Ibid._ p. 571 _sq._]
[Footnote 111: von Martius, _Beiträge zur Ethnographie Amerika's_,
i. 217, 641 (Guarayos, Macusis). Musters, _op. cit._ p. 195
(Patagonians).]
[Footnote 112: Brett, _Indian Tribes of Guiana_, p. 276.]
[Footnote 113: de Poircy-Rochefort, _Histoire naturelle et morale des
Iles Antilles_, p. 460.]
Among the Tonga Islanders the sentiment of humanity, or a
fellow-feeling for one another, is universally approved. They "are not
only not selfish, but admire liberality, and are practically liberal."
When any one is about to eat, he always shares what he has with those
about him without any hesitation, and not to do so would be considered
exceedingly vile and selfish. So, also, "if one chief sees something
in the possession of another, which he has a strong desire to have, he
has only to ask him for it, and in all probability it is readily and
liberally given."[114] Not even the Fijians, who took great pains to
instil into the minds of their youth a contempt for compassionate
impulses and an admiration for relentless cruelty,[115] were destitute
of humanity and friendly feelings.[116] In Aneiteum, of the New
Hebrides, the people believed that the sin which would be visited with
the severest punishment in the land of the dead was stinginess or
niggardliness in giving away food, and that the virtue which received
the highest reward was a generous hospitality and a giving liberally
at feasts.[117] In Tana, another island belonging to the same group,
"one man has only to ask anything from his neighbours, and he gets
it."[118] Of the New Caledonians Mr. Atkinson states that, among
themselves, they are "of a generosity that seems to arise mainly from
aversion to refuse any request."[119] The Dyaks are described as
hospitable, {544} kindly, and humane, "to a degree which well might
shame ourselves";[120] whilst the practice of head-hunting is carried
on by every tribe at the expense of its neighbour, the members of each
community have strong feelings of sympathy for each other.[121] Among
the Sea Dyaks, says Grassland, "if any are sick or unable to work, the
rest help; and there seems to me a much stronger bond of union amongst
them than I have ever seen among the labouring classes in England."[122]
[Footnote 114: Mariner, _op. cit._ ii. 153, 154, 165.]
[Footnote 115: Erskine, _Cruise among the Islands of the Western
Pacific_, p. 247.]
[Footnote 116: _Ibid._ pp. 247, 273. Williams and Calvert, _op. cit._
pp. 93, 115 _sq._ Seemann, _Viti_, p. 192.]
[Footnote 117: Inglis, _In the New Hebrides_, p. 31.]
[Footnote 118: Campbell, _A Year in the New Hebrides_, p. 169.]
[Footnote 119: Atkinson, in _Folk-Lore_, xiv. 248.]
[Footnote 120: Boyle, _Adventures among the Dyaks of Borneo_, p. 215.]
[Footnote 121: Bock, _Head-Hunters of Borneo_, p. 210 _sq._ Brooke,
_Ten Years in Saráwak_, i. 57.]
[Footnote 122: Crossland, quoted by Ling Roth, _Natives of Sarawak_,
i. 85.]
The Santals are gentle and very obliging, and sociable to a fault
among their own people.[123] The Hos "are charitable to those
deserving aid."[124] The Todas believe that, after death, the souls of
good people will have enjoyment in heaven, whilst the souls of bad
people will suffer punishment; "a good man is, in the Toda estimation,
one who is given to deeds of charity, and a bad man one who is
uncharitable (this in order of precedence), quarrelsome, thieving,
&c."[125] Mr. Batchelor states that "a more kind, gentle, and
sympathetic people than the Ainos of Japan would be very difficult to
find"; anything given to them they always divide with their
friends.[126] The Samoyedes are ready to share their last morsel with
their companions; and it is said that nobody can surpass the poor
Ostyak in benevolence and other virtues of the heart.[127] "The finest
trait in the character of a Bedouin (next to good faith)," Burckhardt
observes, "is his kindness, benevolence, and charity. . . . Among
themselves, the Bedouins constitute a nation of brothers; often
quarrelling, it must be owned, with each other, but ever ready, when
at peace, to give mutual assistance."[128] Generosity is a virtue
which always commands particular respect in the desert.[129] The Arabs
of the Soudan have a saying that "you must always put other people's
things on your head, and your own under your arm. Then, if there be
danger of the things falling off your head, you must raise your arm,
and let fall your own things to save those of others."[130]
[Footnote 123: Man, _Sonthalia_, p. 19 _sq._ Hunter, _Annals of Rural
Bengal_, i. 215.]
[Footnote 124: Tickell, 'Memoir on the Hodésum,' in _Jour. Asiatic
Soc. Bengal_, ix. (pt. ii.) 807.]
[Footnote 125: Thurston, 'Todas of the Nilgiris,' in the Madras
Government Museum's _Bulletin_, i. 166 _sq._]
[Footnote 126: Batchelor, _Ainu of Japan_, p. 19. Holland, 'Ainos,' in
_Jour. Anthr. Inst._ iii. 235.]
[Footnote 127: Castrén, _op. cit._ i. 238; ii. 55.]
[Footnote 128: Burckhardt, _Notes on the Bedouins and Wahábys_, p. 208.]
[Footnote 129: Wallin, _Reseanteckningar från Orienten_, iii. 244.
Blunt, _Bedouin Tribes of the Euphrates_, ii. 224.]
[Footnote 130: Richardson, _Mission to Central Africa_, i. 117.]
{545} The Barea are a benevolent people, kind even to
strangers.[131] The Manganja, in the neighbourhood of Lake Nyassa,
"are generous in the distribution of food," and even when starving
they share the last morsel with their friends.[132] Sir H. Johnston
says that he has never met with "a more kindly, sensible, considerate
set of beings" than the Wa-taveita.[133] The Eastern Central Africans,
the Rev. D. Macdonald observes, "are not mere animals composed of
greed and selfishness. They often shew great bravery and devotedness.
I can point to one man who saved my life on three separate occasions
at the risk of his own."[134] Among the Bechuanas a regard for the
poor, for widows, and for orphans, is everywhere considered to be a
sacred duty.[135] Among all the virtues the Basutos appreciate none
more than kindness. They have a saying that "one link only sounds
because of another"--which implies that we cannot do without the help
of our fellow-creatures,--and another saying that "one does not skin
one's game without showing it to one's friends"--that is, when we have
been successful in our undertakings, it becomes us to be generous. If
any food is brought to them while they are in each other's society,
however small may be the quantity, every one must have a taste.[136]
The Kafirs are a kindly race; Lichtenstein says that "whenever anyone
kills an ox he must invite all his neighbours to partake of it, and
they remain his guests till the whole is eaten."[137] Of the
Hottentots Kolben states:--"They are certainly the most friendly, the
most liberal, and the most benevolent people to one another that ever
appear'd upon earth . . . . They are charmed with opportunities of
obliging each other, and one of their greatest pleasures lies in
interchanging gifts and good offices."[138] "A Hottentot," says
Barrow, "would share his last morsel with his companions."[139] Drury
wrote of the people of Madagascar:--"They certainly treat one another
with more humanity than we do. Here is no one miserable, if it is in
the power of his neighbours to help him. Here is love, tenderness, and
generosity which might {546} shame us; and . . . . this is . . . . all
over the island."[140] Ellis likewise observes that, in Madagascar,
assisting in distress, and lending and borrowing property and money,
are carried on much more commonly and freely than amongst neighbours
or relatives in England, and that a kindness of heart in these things
is always esteemed excellent.[141]
[Footnote 131: Munzinger, _Ostafrikanische Studien_, p. 534.]
[Footnote 132: Rowley, _Africa Unveiled_, p. 47.]
[Footnote 133: Johnston, _Kilima-njaro Expedition_, p. 436.]
[Footnote 134: Macdonald, _Africana_, i. 270, 266.]
[Footnote 135: Arbousset and Daumas, _Exploratory Tour to the
North-East of the Colony of the Cape of Good Hope_, p. 402.]
[Footnote 136: Casalis, _Basutos_, pp. 206, 207, 301, 306, 309 _sqq._]
[Footnote 137: Leslie, _Among the Zulus and Amatongas_, p. 203.
Lichtenstein, _Travels in Southern Africa_, i. 272.]
[Footnote 138: Kolben, _Present State of the Cape of Good Hope_, i.
334 _sq._ _Cf._ _ibid._ i. 167.]
[Footnote 139: Barrow, _Travels into the Interior of Southern Africa_,
i. 151.]
[Footnote 140: Drury, _Adventures during Fifteen Years' Captivity on
the Island of Madagascar_, p. 172 _sq._]
[Footnote 141: Ellis, _History of Madagascar_, i. 139. For other
African instances, see Mungo Park, _Travels in the Interior of
Africa_, p. 17 (Mandingoes); Burton, _Abeokuta_, i. 303 (Yoruba);
_Idem_, _Two Trips to Gorilla Land_, i. 106 (Mpongwe); Monrad,
_Guinea-Kysten og dens Indbyggere_, p. 7; Johnston, _River Congo_, p.
423 (races of the Upper Congo); Wilson and Felkin, _op. cit._ i. 225
(Waganda).]
Among many savages the old people, in particular, have a claim to
support and assistance, not only from their own children or relatives,
but from the younger members of the community generally.
Among the Australian natives the old men get the best and largest
share of everything, and are allowed to monopolise the youngest and
best-looking women, whilst a young man must consider himself fortunate
if he can get an old woman for wife.[142] Among the Tonga Islanders
"every aged man and woman enjoys the attentions and services of the
younger branches of society."[143] In the Kingsmill Islands
"generosity, hospitality, and attention to the aged and infirm are
virtues highly esteemed and generally practised among all the
natives."[144] Among the Kafirs, when persons advanced in years become
sick and helpless, "everyone is eager to afford them assistance."[145]
In the opinion of the Aleuts, "feeble old men must be respected and
attended when they need aid, and the young and strong should give them
a share of their booty and help them through all their troubles,
endeavouring to obtain in exchange their good advice only."[146]
[Footnote 142: Eyre, _op. cit._ ii. 385 _sq._ Mathew, in _Jour. &
Proceed. Roy. Soc. N.S. Wales_, xxiii. 407. Lumholtz, _Among
Cannibals_, p. 163. _Cf._ Grey, _Journals of Two Expeditions of
Discovery in North-West and Western Australia_, ii. 248; Brough Smyth,
_op. cit._ i. 138; Spencer and Gillen, _Native Tribes of Central
Australia_, p. 51.]
[Footnote 143: Mariner, _op. cit._ ii. 155.]
[Footnote 144: Hale, _U.S. Exploring Expedition. Vol. VI. Ethnography
and Philology_, p. 95.]
[Footnote 145: Lichtenstein, _op. cit._ i. 265.]
[Footnote 146: Veniaminof, quoted by Petroff, _loc. cit._ p. 155.]
The sick, also, are often very carefully attended to.
Among the coast tribes of British Columbia Mr. Duncan "always found
one or two nurses to an invalid, if the case was {547} at all bad; the
sympathy of the nurses, too, seemed very great."[147] Beechey says of
the wild Indians of Upper California:--"The very great care taken of
all those who are affected with any disease ought not to be allowed to
escape a remark. When any of their relations are indisposed, the
greatest attention is paid to their wants."[148] Keating noticed the
kind and humane treatment which the Potawatomis extended even to the
idiots.[149] The Koriaks "carefully attend those who are sick."[150]
The same is said of the Ainos of Japan,[151] and the Tagbanuas of the
Philippine Islands.[152] In Sarawak no relative is abandoned because
an injury or illness may have incapacitated him for work.[153] When a
Dyak is ill at home, the women nurse the patient in turn.[154] In
Samoa "the treatment of the sick was invariably humane."[155] In
Tana,[156] Humphrey's Island,[157] Erromanga,[158] and Tasmania,[159]
they were likewise kindly attended to; and the same is the case at
least among many of the Australian tribes.[160] Concerning the
aborigines of Herbert River, in Northern Queensland, Lumholtz
writes:--"The natives are very kind and sympathetic towards those who
are ill, and they carry them from camp to camp. This is the only noble
trait I discovered in the Australian natives."[161] In various parts
of Australia the blind, and especially the aged blind, are carefully
tended; travellers on the northern coast of the continent have noticed
that these are generally the fattest of the company, being supplied
with the best of everything.[162] "No trait in the character of the
Malagasy," says Ellis, "is more creditable to their humanity, and more
gratifying to our benevolent feelings, than the kind, patient, and
affectionate manner in which they attend upon the sick."[163] A
similar praise is bestowed upon the {548} Mandingoes[164] and
Kafirs.[165] Among the Zulus, says Mr. J. Tyler, "work, however
important, is at once suspended that they may help their afflicted
friends."[166]
[Footnote 147: Duncan, quoted by Mayne, _Four Years in British
Columbia_, p. 292 _sq._]
[Footnote 148: Beechey, _op. cit._ ii. 402.]
[Footnote 149: Keating, _Expedition to the Source of St. Peter's
River_, i. 100.]
[Footnote 150: Krasheninnikoff, _op. cit._ p. 233.]
[Footnote 151: von Siebold, _Die Aino auf der Insel Yesso_, p. 11.]
[Footnote 152: Worcester, _Philippine Islands_, p. 494.]
[Footnote 153: St. John, _Life in the Forests of the Far East_, ii. 323.]
[Footnote 154: Bock, _Head-Hunters of Borneo_, p. 211.]
[Footnote 155: Turner, _Samoa_, p. 141. _Cf._ Pritchard, _Polynesian
Reminiscences_, p. 146.]
[Footnote 156: Turner, _Samoa_, p. 323.]
[Footnote 157: _Ibid._ p. 276.]
[Footnote 158: Robertson, _Erromanga_, p. 399.]
[Footnote 159: Ling Roth, _Aborigines of Tasmania_, p. 47. Bonwick,
_Daily Life and Origin of the Tasmanians_, p. 10.]
[Footnote 160: Brough Smyth, _op. cit._ ii. 284 (West Australian
natives). Schuermann, 'Aboriginal Tribes of Port Lincoln,' in Woods,
_Native Tribes of South Australia_, p. 225.]
[Footnote 161: Lumholtz, _Among Cannibals_, p. 183.]
[Footnote 162: Ridley, _Kámilarói_, p. 169. Eyre, _op. cit._ ii. 382
Barrington, _History of New South Wales_, p. 23. Stirling, _op. cit._
p. 36.]
[Footnote 163: Ellis, _History of Madagascar_, i. 231 _sq._]
[Footnote 164: Caillié, _op. cit._ i. 354.]
[Footnote 165: Lichtenstein, _op. cit._ i. 266.]
[Footnote 166: Tyler, _Forty Years among the Zulus_, p. 195.]
Whilst the information which I have been able to gather on the social
customs of uncivilised races seems to indicate that, in the majority
of cases, mutual kindness and goodwill prevail within their
communities, there are not wanting statements of a different
character. But these statements are, after all, exceptional, and some
of them are either ambiguous or obviously inexact. Only too often
travellers represent to us the savage, not as he is in his daily life
amidst his own people, but as he behaves towards his enemy, or towards
a stranger who enters his country uninvited. As an experienced
observer remarks, "the savage, passionate and furious with the feeling
of revenge, slaughtering and devouring his enemy and drinking his
blood, is no longer the same being as when cultivating his fields in
peace; and it would be as unjust to estimate his general character by
his actions in these moments of unrestrained passion, as to judge of
Europeans by the excesses of an excited soldiery or an infuriated
mob."[167] Moreover, many accounts of savages date from a period when
they have already been affected by contact with a "higher culture," as
we call it, a culture which almost universally has proved to exercise
a deteriorating influence on the character of the lower races. Among
the North American Indians, for instance, "there was more good-will,
hospitality, and charity, practised towards one another" before white
people came and resided among them;[168] whereas contact with
civilisation has made them "false, suspicious, avaricious and
hard-hearted."[169] As has been truly said, "search modern history,
and in the North {549} and South and East and West the story is ever
the same--we come, we civilise, and we corrupt or exterminate."[170]
[Footnote 167: Dieffenbach, _Travels in New Zealand_, ii. 130 _sq._]
[Footnote 168: Warren, in Schoolcraft, _Indian Tribes of the United
States_, ii. 139.]
[Footnote 169: Domenech, _Seven Years' Residence in the Great Deserts
of North America_, ii. 69.]
[Footnote 170: Boyle, _op. cit._ p. 108.]
Among the semi-civilised and civilised nations charity has universally
been regarded as a duty, and has often been strenuously enjoined by
their religions. When Spain and Peru first came into contact, the
Americans surpassed the Spaniards in brotherly love and systematic
care for the needy. They had a poor-law according to which the blind,
lame, aged, and infirm, who could not till their own lands so as to
clothe and feed themselves, should receive sustenance from the public
stores.[171] The ancient Mexicans, according to Clavigero, seemed to
give without reluctance what had cost them the utmost labour to
acquire.[172] "The great virtue of the Coreans is their innate respect
for and daily practice of the laws of human brotherhood. Mutual
assistance and generous hospitality among themselves are distinctive
national traits."[173] According to Chinese law, "all poor destitute
widowers and widows, the fatherless and childless, the helpless and
the infirm, shall receive sufficient maintenance and protection from
the magistrates of their native city or district, whenever they have
neither relations nor connections upon whom they can depend for
support."[174] "Benevolence," said Confucius, "is more to man than
either water or fire."[175] To assist the needy, to feed the hungry,
to clothe the naked, to succour the sick, to save men in danger--these
and similar acts of kindness are, according to Chinese beliefs, merits
which will be rewarded by the unseen powers that watch human conduct,
whereas the uncharitable and parsimonious are threatened with divine
punishments.[176] In a book of Buddhistic-Confucian flavour, {550} as
familiar to the youth of Japan as the Sermon on the Mount is to us, it
is said, "Above all things, men must practise charity; it is by
almsgiving that wisdom is fed."[177] According to the Dhammapada, "the
uncharitable do not go to the world of the gods; fools only do not
praise liberality; a wise man rejoices in liberality, and through it
becomes blessed in the other world."[178] Indeed, in the didactic
poetry of Buddhism the virtue of beneficence occupies the most
prominent place; without any regard to what is the measure of the real
benefit thereby extended to the recipient of the gift, the legends set
before us as a duty the most unbounded generosity, pushed even to the
extreme of self-destruction.[179] And in its conception of charity and
liberality, as in all other points of worldly morality, Buddhism does
not differ from the standard recognised in India since ancient
times.[180] Already in the Vedic hymns praise is bestowed on those who
from their abundance willingly dispense to the needy, on those who do
not turn away from the hungry, on those who are kind to the poor.[181]
In the Hitopadesa it is said that the good man shows pity even to the
worthless, as the moon does not withdraw its light even from a member
of the lowest caste.[182] The sacred law-books of India are full of
prescriptions enjoining almsgiving as a duty on all twice-born
men.[183] "A householder must give as much food as he is able to spare
to those who do not cook for themselves, and to all beings one must
distribute food without detriment to one's own interest."[184] The
student "should always without sloth give alms out of whatever he has
for food."[185] The Brâhmana who has completed his studentship should
without tiring "perform works of {551} charity with faith."[186]
Almsgiving confers merit on the giver, it frees him from guilt, it
destroys sin;[187] "for whatever purpose a man bestows any gift, for
that purpose he receives in his next birth with due honour its
reward."[188] On the other hand, he who cooks for himself alone eats
nothing but sin.[189] Speaking of the modern Hindus, Mr. Wilkins
observes:--"The charity of the Hindus is great. . . . There is no
poor-law in India, no guardians of the poor, no workhouses, excepting
for the Europeans in the Presidency towns. The poor of a family, the
halt, the lame, the blind, the weak, the insane, are provided for by
their family, if it is at all able to do it; in cases where there are
few or no relatives, then the burden is taken up by others. It is a
'work of merit.'"[190]
[Footnote 171: Garcilasso de fa Vega, _First Part of the Royal
Commentaries of the Yncas_, ii. 34.]
[Footnote 172: Clavigero, _History of Mexico_, i. 81.]
[Footnote 173: Griffis, _Corea_, p. 288.]
[Footnote 174: _Ta Tsing Leu Lee_, sec. lxxxix. p. 93. On the
charitable institutions of the Chinese, see Staunton, _ibid._ p. 93 n.
*; Smith, _Chinese Characteristics_, p. 186 _sq._]
[Footnote 175: Douglas, _Confucianism and Taouism_, p. 109.]
[Footnote 176: 'Merits and Errors Scrutinized,' in _Indo-Chinese
Gleaner_, iii. 159, 161 _sqq._ _Thâi Shang_, 3. 'Divine Panorama,' in
Giles, _Strange Stories from a Chinese Studio_, ii. 370, 371, 374, 379.
Douglas, _Confucianism and Taouism_, pp. 259, 272 _sq._ Davis,
_China_, ii. 48. Edkins, _Religion in China_, p. 89 _sq._]
[Footnote 177: Chamberlain, _Things Japanese_, p. 309.]
[Footnote 178: _Dhammapada_, 177.]
[Footnote 179: Oldenberg, _Buddha_, p. 301.]
[Footnote 180: _Cf._ Kern, _Manual of Indian Buddhism_, p. 72.]
[Footnote 181: _Rig-Veda_, x. 117. Kaegi, _Rigveda_, p. 18.]
[Footnote 182: _Hitopadesa_, Mitralâbhâ, 63.]
[Footnote 183: _Gautama_, v. 21; x. 1 _sq._ _Institutes of Vishnu_,
lix. 28. _Baudhâyana_, ii. 7. 13. 5. _Laws of Manu_, ix. 333; x. 75,
79; xi. 1 _sqq._]
[Footnote 184: _Laws of Manu_, iv. 32.]
[Footnote 185: _Anugîtâ_, 31.]
[Footnote 186: _Laws of Manu_, iv. 226. _Cf._ _ibid._ iv. 227.]
[Footnote 187: _Institutes of Vishnu_, lix. 15, 30; ch. xc. _sqq._
_Gautama_, xix. 11, 16. _Vasishtha_, xx. 47; xxii. 8. _Laws of Manu_,
iii. 95; iv. 229 _sqq._; xi. 228.]
[Footnote 188: _Laws of Manu_, iv. 234.]
[Footnote 189: _Institutes of Vishnu_, lxvii. 43. _Laws of Manu_, iii.
118. _Cf._ _Rig-Veda_, x. 117. 6.]
[Footnote 190: Wilkins, _Modern Hinduism_, p. 416 _sq._]
Of the ancient Persians Thucydides said that they preferred giving to
receiving.[191] To be charitable towards the poor of their own faith
was among them a religious duty of the first order.[192] Zoroaster
thus addressed Vîshtâspa:--"Let no thought of Angra Mainyu ever infect
thee, so that thou shouldst indulge in evil lusts, make derision and
idolatry, and shut to the poor the door of thy house."[193] The holy
Sraosha is the protector of the poor.[194] In the Shâyast it is said
that the clothing of the soul in the next world is formed out of
almsgiving.[195]
[Footnote 191: Thucydides, ii. 97. 4.]
[Footnote 192: See Geiger, _Civilization of the Eastern Ir[=a]nians_,
i. 164 _sqq._; Mills, in _Sacred Books of the East_, xxxi. p. xxii.]
[Footnote 193: _Yasts_, xxiv. 37.]
[Footnote 194: _Ibid._ xi. 3.]
[Footnote 195: _Shâyast Lâ-Shâyast_, xii. 4. _Cf._ _Bundahis_, xxx. 28.]
It seems that among the ancient Egyptians charity was considered no
less meritorious.[196] "The god," M. Maspero observes, "does not
confine his favour to the prosperous and the powerful of this world;
he bestows it also upon {552} the poor. His will is that they be fed
and clothed, and exempted from tasks beyond their strength; that they
be not oppressed, and that unnecessary tears be spared them."[197] In
the memorial inscriptions, where the dead plead their good deeds,
charity is often referred to. "I harmed not a child," says one
Egyptian, "I injured not a widow; there was neither beggar nor needy
in my time; none were hungered, widows were cared for as though their
husbands were still alive."[198] In the inscription in honour of a
lady who had been charitable to persons of her own sex, whether girls,
wives, or widows, it is said, "The god rewarded me for this, rejoicing
me with the happiness which he has granted me for walking after his
way."[199]
[Footnote 196: Brugsch, _History of Egypt under the Pharaohs_, i. 29
_sq._ Tiele, _History of the Egyptian Religion_, p. 226 _sq._ Renouf,
_Hibbert Lectures on the Religion of Egypt_, p. 72 _sqq._ Amélineau,
_L'évolution des idées morales dans l'Égypt Ancienne_, pp. 145, 354.]
[Footnote 197: Maspero, _Dawn of Civilization_, p. 191. _Cf._
Schiapparelli, _Del sentimento religioso degli antichi egiziani_, p.
18; Amélineau, _op. cit._ p. 268.]
[Footnote 198: Wiedemann, _Religion of the Ancient Egyptians_, p. 253.]
[Footnote 199: Renouf, _op. cit._ p. 75.]
Charity was urgently insisted upon by the religious law of the
Hebrews.[200] "Thou shalt open thine hand wide unto thy brother, to
thy poor, and to thy needy, in thy land"; "for this thing the Lord thy
God shall bless thee in all thy works, and in all that thou puttest
thine hand unto."[201] Even "if thine enemy be hungry, give him bread
to eat; and if he be thirsty, give him water to drink: . . . the Lord
shall reward thee."[202] Especially in the Old Testament Apocrypha and
in Rabbinical literature almsgiving assumed an excessive
prominence--so much so that the word which in the older writings means
"righteousness" in general, came to be used for almsgiving in
particular.[203] "Shut up alms in thy storehouses: and it shall
deliver thee from all affliction."[204] "As water will quench a
flaming fire, so alms maketh an atonement for sins."[205] "For alms
doth deliver from death, and shall purge away all sin. Those that
exercise alms and {553} righteousness shall be filled with life."[206]
The charitable man is rewarded with the birth of male issue.[207]
Almsgiving is equal in value to all other commandments.[208] He who
averts his eyes from charity commits a sin equal to idolatry.[209] To
such an extreme was almsgiving carried on by the Jews, that some
Rabbis at length decreed that no man should give above a fifth part of
his goods in charity.[210]
[Footnote 200: _Deuteronomy_, xiv. 29; xv. 7 _sqq._; xvi. 11, 14.
_Leviticus_, xix. 9 _sq._; xxv. 35.]
[Footnote 201: _Deuteronomy_, xv. 11, 10.]
[Footnote 202: _Proverbs_, xxv. 21 _sq._]
[Footnote 203: Addis, 'Alms,' in _Encyclopædia Biblica_, i. 118. _Cf._
Montefiore, _Hibbert Lectures on the Religion of the Ancient Hebrews_,
p. 484 _sq._]
[Footnote 204: _Ecclesiasticus_, xxix. 12.]
[Footnote 205: _Ibid._ iii. 30.]
[Footnote 206: _Tobit_, xii. 9. _Cf._ _ibid._ i. 3, 16; ii. 14; iv. 7
_sqq._; xii. 8.]
[Footnote 207: _Bava Bathra_, fol. 10 B, quoted by Hershon, _Treasures
of the Talmud_, p. 24.]
[Footnote 208: Rab Assi, quoted by Kohler, 'Alms,' in _Jewish
Encyclopedia_, i. 435.]
[Footnote 209: _Kethuboth_, fol. 68 A, quoted by Katz, _Der wahre
Talmudjude_, p. 36.]
[Footnote 210: Katz, _op. cit._ p. 42.]
Almsgiving, prayer, and fasting were the three cardinal disciplines
which the synagogue transmitted to both the Christian Church and the
Muhammedan mosque.[211] According to Islam, the duty next in
importance to prayer is that of giving alms.[212] Muhammed repeatedly
announces that the path which leads to God is the helping of the
orphans and the relieving of the poor.[213] "Ye cannot attain to
righteousness until ye expend in alms of what ye love."[214] "Those
who expend their wealth by night and day, secretly and openly, they
shall have their hire with their lord."[215] It is said that "prayer
carries us half-way to God, fasting brings us to the door of His
palace, and alms procure us admission."[216] Certain alms, called
Zakât, are prescribed by law; it is an indispensable duty for every
Muhammedan of full age to bestow in charity about one-fortieth of all
such property as has been a year in his possession, provided that he
has sufficient for his subsistence and has an income equivalent to
about £5 per annum.[217] Other charitable gifts are voluntary, and
confer merit upon the giver.
[Footnote 211: _Cf._ _Tobit_, xii. 8; Kohler, in _Jewish
Encyclopedia_, i. 435.]
[Footnote 212: See Sale's 'Preliminary Discourse,' in Wherry,
_Commentary on the Qurán_, i. 172; Lane, _Manners and Customs of the
Modern Egyptians_, p. 105.]
[Footnote 213: _Koran_, ii. 267, 269, 275; viii. 42; ix. 60; xc. 12,
14 _sq._; xciii. 6 _sqq._; &c.]
[Footnote 214: _Ibid._ iii. 86.]
[Footnote 215: _Ibid._ ii. 275]
[Footnote 216: Sell, _Faith of Islám_, p. 284.]
[Footnote 217: _Ibid._ p. 283. Palmer, 'Introduction' to his
translation of _The Qur'án_, i. p. lxxiii. Ameer Ali, _Life and
Teaching of Mohammed_, p. 268.]
By Christianity charity of the religious type which we {554} find in
the East was introduced into Europe. We have certainly no reason to
blame the ancient Greeks and Romans for neglecting their poor. Among
them slavery in a great measure replaced pauperism; and what slavery
did for the very poor, the Roman system of clientage did for those of
a somewhat higher rank.[218] Moreover, the relief of the indigent was
an important function of the State.[219] The Areopagus provided public
works for the poor.[220] At Rome gratuitous distribution of corn was
the rule for many centuries;[221] agrarian laws furnished free
homesteads to the landless, on conquered or public territory;[222]
since the days of Nerva a systematic support of poor children was
enjoined in all the cities of Italy.[223] A few examples of private
charity, also, have descended to us already from early times, such as
Epaminondas collecting dowers for poor girls,[224] and Cimon feeding
and clothing the poor;[225] and from the days of the Pagan Empire
there are recorded several cases of individual beneficence. Charitable
bequests are alluded to in the burial inscriptions; when some great
catastrophe happened, relief was willingly given to the sufferers;
private infirmaries were established for slaves.[226] The duty of
charity was forcibly enjoined by some of the moralists. The wise man,
says Seneca, "will dry the tears of others, but will not mingle his
own with them; he will stretch out his hand to the shipwrecked
mariner, will offer hospitality to the exile, and alms to the
needy."[227] But his alms are not thrown away by chance; his purse
will open easily, but never leak. He will choose out the worthiest
with the utmost care, and never give without sufficient reason; for
unwise gifts must be reckoned among foolish extravagances.[228] So
also Cicero, {555} whilst styling beneficence and liberality "virtues
that are the most agreeable to the nature of man," is anxious to warn
his readers against imprudence in practising them, "lest our kindness
should hurt both those whom it is meant to assist, and others."[229]
[Footnote 218: See Lecky, _History of European Morals_, ii. 73.]
[Footnote 219: Boissier, _Religion Romaine_, ii. 206.]
[Footnote 220: Farrer, _Paganism and Christianity_, p. 183.]
[Footnote 221: Naudet, 'Des secours publics chez les Romains,' in
_Mémoires de l'Académie des inscriptions et belles-lettres_,
xiii. 43 _sq._]
[Footnote 222: _Ibid._ p. 71 _sq._]
[Footnote 223: Aurelius Victor, _Epitome_, xii. 8.]
[Footnote 224: Cornelius Nepos, _Epaminondas_, 3.]
[Footnote 225: Plutarch, _Cimon_, 10.]
[Footnote 226: Lecky, _History of European Morals_, ii. 77 _sq._
Boissier, _op. cit._ ii. 213 _sq._ Farrer, _Paganism and
Christianity_, p. 182.]
[Footnote 227: Seneca, _De clementia_, ii. 6.]
[Footnote 228: _Idem_, _De vita beata_, 23 _sq._]
[Footnote 229: Cicero, _De officiis_, i. 14 _sq._]
In a very different light was charity viewed by the Christians.
Unlimited open-handedness became a cardinal virtue. An ideal Christian
was he who did what Jesus commanded the young man to do: who went and
sold what he had and gave it to the poor.[230] Promiscuous almsgiving
was enjoined as a duty:--"Give to him that asketh thee, and from him
that would borrow of thee turn not thou away."[231] The discharge of
this duty was even more profitable to the giver than to the receiver.
There is perhaps no precept in the Gospel to which a promise of
recompense is so frequently annexed as to that concerning charity.
Eternal life is promised to those who feed the hungry, give drink to
the thirsty, take in the stranger, clothe the naked, visit the
sick.[232] Charity was regarded as an atonement. "God," says St.
Augustine, "is to be propitiated through alms for sins past";[233] and
countless times is the thought expressed, that almsgiving is a safe
investment of money at good interest with God in heaven.[234] Cyprian,
who is the father of the Romish doctrine of good works, establishes an
arithmetical relation between the number of alms-offerings and the
blotting out of sins.[235] "The food of the needy," says Leo the
Great, "is the purchase-money of the kingdom of heaven."[236] "As long
as the market lasts," says St. Chrysostom, "let us buy alms, or rather
let us purchase salvation through alms."[237] The rich man is only a
debtor; all that he possesses beyond {556} what is necessary, belongs
to the poor, and ought to be given away.[238] The poor, no longer
looked down upon, became instruments of salvation. To them was given
the first place in the Church and in the Christian community. St.
Chrysostom says of them, "As fountains flow near the place of prayer
that the hands that are about to be raised to heaven may be washed, so
were the poor placed by our fathers near to the door of the Church,
that our hands might be consecrated by benevolence before they are
raised to God."[239] Gregory the Great announces, and the Middle Ages
re-echo, "The poor are not to be lightly esteemed and despised, but to
be honoured as patrons."[240] Thus it happened that even in the
darkest periods, when all other Christian virtues were nearly extinct,
charity survived unimpaired.[241] Later on Protestantism, by denying
the atoning effect of good deeds, deprived charity of a great deal of
its religious attraction. And in modern times the enlightened opinion
on the subject, recognising the demoralising influence of
indiscriminate almsgiving, rather agrees with the principles laid down
by Cicero and Seneca, than with the literal interpretation of the
injunctions of Christ.
[Footnote 230: _Cf._ _Acts_, ii. 45.]
[Footnote 231: _St. Matthew_, v. 42. _Cf._ _St. Luke_, vi. 30.]
[Footnote 232: _St. Matthew_, xxv. 34 _sqq._]
[Footnote 233: St. Augustine, _Enchiridion_, 70 (Migne, _Patrologiæ
cursus_, xl. 265).]
[Footnote 234: See Uhlhorn, _Die christliche Liebesthätigkeit_, i. 270.]
[Footnote 235: Cyprian, _De opere et eleemosynis_, 24 (Migne, _op.
cit._ iv. 620). _Cf._ Harnack, _History of Dogma_, ii. 134, n. 2.]
[Footnote 236: Leo Magnus, _Sermo X., de Collectis_, 5 (Migne, _op.
cit._ liv. 165 _sq._).]
[Footnote 237: St. Chrysostom, _Homilia VII., de P[oe]nitentia_
(Migne, _op. cit._ Ser. Graeca, xlix. _sq._ 333).]
[Footnote 238: Uhlhorn, _op. cit._ p. 294 _sq._]
[Footnote 239: St. Chrysostom, _De verbis Apostoli, Habentes eumdem
spiritum_, iii. 11 (Migne, _op. cit._ Ser. Graeca, li. _sq._ 300).]
[Footnote 240: Quoted by Uhlhorn, _op. cit._ i. 315.]
[Footnote 241: _Cf._ Milman, _History of Latin Christianity_,
ix. 33 _sq._]
In the course of progressing civilisation the obligation of assisting
the needy has been extended to wider and wider circles of men. The
charity and generosity which savages require as a duty or praise as a
virtue have, broadly speaking, reference only to members of the same
community or tribe. Kindness towards foreigners is looked upon in a
very different light. "The virtues of the Negroes," Monrad observes,
"are entirely restricted to their own tribe. The doing good to a
stranger they would generally find ridiculous."[242] To the
Greenlander a foreigner, especially if he be of another race, is "an
indifferent object, whose welfare he has no interest in
furthering."[243] {557} The Bedouin, says Doughty, "has two faces,
this of gentle kindness at home, the other of wild misanthropy and his
teeth set against the world besides."[244] At higher stages of
civilisation the duty of charity embraces a wider group of people, in
proportion to the largeness of the social unit or to the scope of the
religion by which it is enjoined. But it is still more or less
restrained by national or religious boundaries. M. Amélineau observes
that the charity referred to on ancient Egyptian papyri is "la charité
limitée à ceux de la même nation."[245] According to Zoroastrianism,
charity should be restricted to the followers of the true religion; to
succour an unbeliever would be like a strengthening of the dominion of
Evil.[246] The Zakât, or legal alms of the Muhammedans, must not be
given to a non-Muslim, because it is regarded as a fundamental part of
worship;[247] similarly the [S.]adaqah, or offering on the feast-day
known as [(]Idu'l-Fi[t.]r, is confined to true believers.[248] Nor has
Christian charity always been free from religious narrowness. Fleury
says that the early Christians, in the care they took of the poor,
always preferred Christians before infidels, because "their principal
regard was to their spiritual concerns, and to their temporal welfare
only in order to their spiritual."[249] The principle of the Church
was, "Omnem hominem _fidelem_ judica tuum esse fratrem."[250] In the
seventeenth century the Scotch clergy taught that food or shelter must
on no occasion be given to a starving man unless his opinions were
orthodox.[251] On the other hand, Christianity of a higher type
preaches charity towards all men; and so does advanced Judaism and
Buddhism. It is said in the Talmud, with reference to the treatment of
the poor, that no distinction should be made between such as are Jews
and such as are not.[252] In modern times charity now and then {558}
steps over the barriers of nationality even when the sufferers belong
to distant nations. Whilst our indigent compatriots are generally
recognised to have a greater claim on our pity than needy strangers, a
great calamity in one country readily calls forth a charitable
response in other nations. Mr. Pike believes that the contribution of
one hundred thousand pounds sterling which England, in the year 1755,
when Lisbon was laid in ruins by an earthquake, sent for the relief of
the sufferers, inaugurated this new era of international
charitableness. "Compassion." he observes, "was at last shown by
Englishmen, not simply for Englishmen and Protestants, but for
foreigners professing a different religion; pity, for once, triumphed
over intolerance and national prejudice."[253] And in war, in the case
of enemies rendered harmless by wounds or disease, the growth of human
feeling has passed beyond the simple requirement that they shall not
be killed or ill-used, and has cast upon belligerents the duty of
tending them so far as is consistent with the primary duty to their
own wounded.[254] However, it must not be imagined that this humane
principle, which has only lately been recognised in Europe, is a
unique outcome of Christian civilisation at its height. It is said in
the Mahabharata that, when a quarrel arises among good men, a wounded
enemy is to be cured in the conqueror's own country, or to be conveyed
to his home.[255] Strangely enough, even from the savage world we hear
of something like an anticipation of the Geneva Convention. Among
certain tribes in New South Wales, as soon as the fight is concluded,
"both parties seem perfectly reconciled, and jointly assist in tending
the wounded men."[256]
[Footnote 242: Monrad, _op. cit._ p. 4.]
[Footnote 243: Nansen, _Eskimo Life_, p. 159.]
[Footnote 244: Doughty, _Arabia Deserta_, i. 368 _sq._]
[Footnote 245: Amélineau, _op. cit._ p. 354.]
[Footnote 246: Geiger, _op. cit._ i. 165.]
[Footnote 247: Sell, _op. cit._ p. 284. _Cf._ _Koran_, ix. 60.]
[Footnote 248: Sell, _op. cit._ p. 318.]
[Footnote 249: Fleury, _Manners and Behaviour of the Christians_,
p. 133 _sq._]
[Footnote 250: Laurent, _Études sur l'histoire del'Humanité_, iv. 94.]
[Footnote 251: Buckle, _History of Civilization in England_, iii. 277.]
[Footnote 252: _Gitin_, fol. 61 A, quoted by Katz, _Der wahre
Talmudjude_, p. 38. _Cf._ Chaikin, _Apologie des Juifs_, p. 10.]
[Footnote 253: Pike, _History of Crime in England_, ii. 346.]
[Footnote 254: 'Convention signed at Geneva, August 22, 1864, for the
Amelioration of the Condition of the Wounded in Armies in the Field,'
in Lorimer, _Institutes of the Law of Nations_, ii. Appendix no. vi.
Hall, _Treatise on International **Law_, p. 399. Heffter, _Das
Europäische Völkerrecht der Gegenwart_, § 126, p. 267, n. 5.]
[Footnote 255: _Mahabharata_, xii. 3547, quoted by Lorimer, _op. cit._
ii. 431.]
[Footnote 256: Brough Smyth, _op. cit._ i. 160.]
{559} The gradual expansion of the duty of charity is due to the fact
that this duty, in the first place, is based on the altruistic
sentiment, and consequently follows the same general law of
development. Many cases referred to above imply that savages are by no
means strangers to affection, and that in their communities there is
not only mutual assistance, but general kindness of heart. Numerous
instances to the same effect might easily be added. When a Fuegian is
very ill the near relatives show much grief;[257] and Darwin tells us
that the Fuegian boy who was taken on board the _Beagle_ and brought
to Europe, used to go to the sea-sick and say, in a plaintive voice,
"Poor, poor fellow!"[258] The Veddahs are praised not only for their
charitable behaviour towards each other, but for their natural
tenderness of heart.[259] The aborigines of Victoria are said to "have
the greatest love for their friends and relatives," and to testify the
liveliest joy when a companion after a long absence returns to the
camp.[260] Forster mentions an instance of affection among the natives
of Tana, which, as he says, "strongly proves that the passions and
innate quality of human nature are much the same in every
climate."[261] Melville declares that, after passing a few weeks in
the Typee valley of the Marquesas, he formed a higher estimate of
human nature than he ever before entertained.[262] It can hardly be
doubted that in every human society there is, normally, some degree of
social affection between its members;[263] and it seems that the
evolution of this sentiment in mankind has been much more in the
direction of greater extensiveness than of greater intensity.
[Footnote 257: Bridges, in _A Voice for South America_, xiii. 206.]
[Footnote 258: Darwin, _Journal of Researches_, p. 207.]
[Footnote 259: Sarasin, _op. cit._ iii. 545, 550.]
[Footnote 260: Brough Smyth, _op. cit._ i. 138.]
[Footnote 261: Forster, _Voyage round the World_, ii. 325.]
[Footnote 262: Melville, _Typee_, p. 297.]
[Footnote 263: See _infra_, on the Origin and Development of the
Altruistic Sentiment.]
Where the members of a group have affection for each other, mutual aid
will be regarded as a duty both because it will be practised
habitually, and because a {560} failure to afford it will call forth
sympathetic resentment on behalf of the sufferer, But we need, here
again, to look below the surface. Men may be induced to do good to
their fellow-creatures not only by kindly feelings towards them, but
by egoistic motives; and such motives, through having a share in
making beneficence a tribal habit, at the same time influence the
moral estimation in which it is held. The Basutos say that "the knife
that is lent does not return alone to its master"--a kindness is never
thrown away.[264] Of the Asiniboin, a Siouan tribe, Mr. Dorsey states
that "nothing is given except with a view to a gift in return."[265]
When the Andaman Islanders make presents of the best that they
possess, they tacitly understand that an equivalent should be rendered
for every gift.[266] Among the Makololo "the rich show kindness to the
poor, in expectation of services."[267] In his description of the
Greenlanders, Dr. Nansen observes that all the small communities
depend for their existence on the law of mutual assistance, on the
principle of common suffering and common enjoyment. "A hard life has
taught the Eskimo that even if he is a skilful hunter and can, as a
rule, manage to hold his own well enough, there may come times when,
without the help of his fellows, he would have to succumb. It is
better, therefore, for him to help in his turn."[268] That similar
considerations largely lie at the bottom of the custom of mutual aid
and charity both in uncivilised and more advanced communities, we may
assume from the experience of human nature which we have acquired at
home. And such motives must be particularly active in a society the
members of which are so dependent on each other's services and
return-services, as is generally the case with a horde of savages.
[Footnote 264: Casalis, _op. cit._ p. 310.]
[Footnote 265: Dorsey, 'Siouan Sociology,' in _Ann. Rep. Bur. Ethn._
xv. 225 _sq._]
[Footnote 266: Man, in _Jour. Anthr. Inst._ xii. 95.]
[Footnote 267: Livingstone, _Missionary Travels_, p. 511.]
[Footnote 268: Nansen, _First Crossing of Greenland_, ii. 304 _sq._
_Cf._ Cranz, _History of Greenland_, i. 173; Parry, _op. cit._ p. 525.]
Moreover, by niggardliness a person may expose himself {561} to
supernatural dangers, whereas liberality may entail supernatural
reward. In Morocco nobody would like to eat in the presence of other
people without sharing his meal with them; otherwise they might poison
his food by looking at it with an evil eye. So also, if anybody shows
a great liking for a thing belonging to you, wanting, for instance, to
buy your gun or your horse, it is best to let him have it, since
otherwise an accident is likely to happen to the object of his
desire.[269] But baneful energy, what the Moors call _l-bas_, is
transferable not only by the eye, but by the voice. The poor and the
needy have thus in their hands a powerful weapon and means of
retaliation, the curse. The ancient Greeks believed that the beggar
had his Erinys,[270] his avenging demon, which was obviously only a
personification of his curse.[271] It is said in the Proverbs, "He
that giveth unto the poor shall not lack: but he that hideth his eyes
shall have many a curse."[272] The same idea is expressed in
Ecclesiasticus:--"Turn not away thine eye from the needy, and give him
none occasion to curse thee: for if he curse thee in the bitterness of
his soul, his prayer shall be heard of him that made him. . . . A
prayer out of a poor man's mouth reacheth to the ears of God, and his
judgment cometh speedily."[273] According to the Zoroastrian Yasts,
the poor man who follows the good law, when wronged and deprived of
his rights, invokes Mithra for help, with hands uplifted.[274] Mr.
Chapman states that, "though the Damaras are, generally speaking,
great gluttons, they would not think of eating in the presence of any
of their tribe without sharing their meal with all comers, for fear of
being visited by a curse from their 'Omu-kuru' [or deity], and
becoming impoverished."[275] There is all reason {562} to suppose that
in this case the curse of the deity was originally the curse, or evil
wish, of an angry man.
[Footnote 269: Similar beliefs prevail in modern Egypt (Klunzinger,
_Upper Egypt_, p. 391).]
[Footnote 270: _Odyssey_, xvii. 475.]
[Footnote 271: _Supra_, p. 60.]
[Footnote 272: _Proverbs_, xxviii. 27.]
[Footnote 273: _Ecclesiasticus_, iv. 5 _sq._; xxi. 5. _Cf._
_Deuteronomy_, xv. 9. Rabbi Johanan says that almsgiving "saves man
from sudden, unnatural death" (Kohler, in _Jewish Encyclopedia_, i.
435). _Cf._ _Proverbs_, x. 2.]
[Footnote 274: _Yasts_, x. 84.]
[Footnote 275: Chapman, _Travels in the Interior of South Africa_,
i. 341.]
A poor man is able not only to punish the uncharitable by means of his
curses, but to reward the generous giver by means of his blessings.
During my residence among the Andjra tribe in the mountains of
Northern Morocco, our village was visited by a band of ambulant
scribes who went from house to house, receiving presents and invoking
blessings in return. When a goat was given them they asked God to
increase the flocks of the giver, when money was given they asked God
to increase his money, and so forth. Some of the villagers told me
that it was a profitable bargain, since they would be tenfold repaid
for their gifts through the blessings of the scribes. A town Moor who
starts for a journey to the country generally likes to give a coin to
one of the beggars who are sitting near the gate, so as to receive his
blessings. It is said in Ecclesiasticus:--"Stretch thine hand unto the
poor, that thy blessing may be perfected. A gift hath grace in the
sight of every man living."[276] Whilst he that withholdeth corn shall
be cursed by the people, "blessing shall be upon the head of him that
selleth it."[277] Among the early Christians those who brought gifts
for the poor were specially remembered in the prayers of the
Church.[278] Of the Nay[=a]dis of Malabar Mr. Iyer says that the
purport and object of their prayers are, among other things, "that all
the superior castes, who give them alms, may enjoy long life and
prosperity."[279] In various cases the nature of the rewards promised
for charitable acts suggests that they are due to the blessings of the
recipient. According to Vasishtha, "through liberality man obtains all
his desires, even longevity."[280] In the Yasts it is said that the
children of a charitable man will thrive.[281] According to Talmudic
ideas, men acquire wealth for their children by {563} distributing
alms among the poor.[282] Considering how widely spread is the belief
in the efficacy of curses and blessings, there can be little doubt
that charity and generosity are connected with this belief in many
cases where no such connection has been noticed by the European
visitor.
[Footnote 276: _Ecclesiasticus_, vii. 32. _Cf._ _Proverbs_, xxii. 9.]
[Footnote 277: _Proverbs_, xi. 26.]
[Footnote 278: Uhlhorn, _op. cit._ i. 141.]
[Footnote 279: Iyer, in the Madras Government Museum's _Bulletin_,
iv. 72.]
[Footnote 280: _Vasishtha_, xxix. 1 _sq._]
[Footnote 281: _Yasts_, xxiv. 36.]
[Footnote 282: Kohler, in _Jewish Encyclopedia_, i. 436. _Cf._
_Proverbs_, xxviii. 27.]
The curses and blessings of the poor partly account for the fact that
charity has come to be regarded as a religious duty. Originally, it is
true, they had not the character of an appeal to a god, but were
believed to possess a purely magical power, independent of any
superhuman will. This belief is rooted in the close association
between the wish, more particularly the spoken wish, and the idea of
its fulfilment. The wish is looked upon in the light of energy which
may be transferred--by material contact, or by the eye, or by means of
speech--to the person concerned, and then becomes a fact. This
process, however, is not taken quite as a matter of course; there is
always some mystery about it. Hence the words of a holy man, a
magician or priest, are considered more efficacious than those of
ordinary mortals. The Australian natives believe that the curse of a
potent magician will kill at the distance of a hundred miles. Among
the Maoris "the anathema of a priest is regarded as a thunderbolt that
an enemy cannot escape."[283] Among the Gallas no man will under any
circumstances slay either a priest or a wizard, from a dread of his
dying curse.[284] Some of the Rabbis maintained that a curse uttered
by a scholar is unfailing in its effect, even if undeserved.[285] In
Muhammedan countries the curses of saints or shereefs are particularly
feared. According to the Laws of Manu, a Brâhmana "may punish his foes
by his own power alone," speech being his weapon.[286] But though a
curse may derive particular potency from the person who utters it,
{564} it is by no means ineffective even in the mouth of an ordinary
man.[287] In the Old Testament children are forbidden to curse their
parents,[288] subjects their rulers,[289] men their god;[290] and
according to Talmudic conceptions, a curse should not be regarded
lightly however ignorant be the person who utters it.[291] All that is
required is that the words should possess that supernatural quality
which alone can bring about the result desired, and this quality may
be inherent in the curse quite independently of the person who utters
it. It is inherent in certain mystic formulas or spells and in the
invocations of some spirit or god. The will of the invoked being is
not considered at all; his name is simply brought in to give the curse
that mystic efficacy which the plain word lacks. Thus both in the Old
Testament[292] and in the Talmud[293] there are traces of the ancient
idea that the name of the Lord might be used with advantage in any
curse however undeserved. But with the deepening of the religious
sentiment this idea had to be given up. A righteous and mighty god
cannot agree to be a mere tool in the hand of a wicked curser. Hence
the curse comes to be looked upon in the light of a prayer, which is
not fulfilled if undeserved; as it is said in the Proverbs, "the curse
causeless shall not come."[294] And the same is the case with the
blessing. Whilst in ancient days Jacob could take away his brother's
blessing by deceit,[295] the efficacy of a blessing was later on
limited by moral considerations.[296] The Psalmist declares that only
the offspring of the righteous can be blessed;[297] and according to
the Apostolic Constitutions, "although a widow who eateth and is
filled from the wicked, pray for them, she shall not be heard."[298]
{565} On the other hand, curses and blessings, when well deserved,
continued to draw down calamity or prosperity upon their objects, by
inducing God to put them into effect; this idea prevails both in
post-exilic Judaism and in Muhammedanism,[299] and underlies the
Christian oath and benediction. The final, but not the original view
was that, as an uncharitable man deserves to be punished and a
charitable man merits reward, the curses and blessings of the poor
will naturally be heard by a righteous God. "The Lord will plead their
cause."[300]
[Footnote 283: Polack, _Manners and Customs of the New Zealanders_,
i. 248 _sq._]
[Footnote 284: Harris, _Highlands of Æthiopia_, iii. 50.]
[Footnote 285: _Makkoth_, fol. 11 A. _Berakhoth_, fol. 56 A.]
[Footnote 286: _Laws of Manu_, xi. 32 _sq._]
[Footnote 287: Taylor, _Te Ika a Maui_, p. 204 (Maoris). Wellhausen,
_Reste arabischen Heidentums_, p. 139.]
[Footnote 288: _Exodus_, xxi. 17. _Leviticus_, xx. 9. _Proverbs_,
xx. 20; xxx. 11.]
[Footnote 289: _Exodus_, xxii. 28. _Ecclesiastes_, x. 20.]
[Footnote 290: _Exodus_, xxii. 28.]
[Footnote 291: _Meghilla_, fol. 15 A.]
[Footnote 292: _Supra_, p. 564.]
[Footnote 293: _Makkoth_, fol. 11 A. _Berakhoth_, foll. 19 A, 56 A.]
[Footnote 294: _Proverbs_, xxvi. 2.]
[Footnote 295: _Genesis_, xxvii. 23 _sqq._]
[Footnote 296: _Cf._ Cheyne, 'Blessings and Curses,' in _Encyclopædia
Biblica_, i. 592.]
[Footnote 297: _Psalms_, xxxvii. 26.]
[Footnote 298: _Constitutiones Apostolicæ_, iv. 6. _Cf._ _Jeremiah_,
vii. 16.]
[Footnote 299: _Cf._ Cheyne, in _Encyclopædia Biblica_, i. 592;
Goldziher, _Abhandlungen zur arabischen Philologie_, i. 29 _sqq._]
[Footnote 300: _Proverbs_, xxii. 23.]
The chief cause, however, of the extraordinary stress which the higher
religions put on the duty of charity seems to lie in the connection
between almsgiving and sacrifice. When food is offered as a tribute to
a god, the god is supposed to enjoy its spiritual part only, whilst
the substance of it is left behind and is eaten by the poor. And when
the offering is continued in ceremonial survival in spite of the
growing conviction that, after all, the deity does not need and cannot
profit by it,[301] the poor become the natural heirs of the god, and
the almsgiver inherits the merit of the sacrificer. The chief virtue
of the act, then, lies in the self-abnegation of the donor, and its
efficacy is measured by the "sacrifice" which it costs him.
[Footnote 301: For such a survival, see Tylor, _Primitive Culture_,
ii. 396 _sqq._]
Many instances may be quoted of sacrificial food being left for the
poor or being distributed among them. At Scillus, where Xenophon had
built an altar and a temple to Artemis and a sacrifice was afterwards
made every year, the goddess supplied the poor people living there in
tents with "barley-meal, bread, wine, sweetmeats, and a share of the
victims offered from the sacred pastures, and of those caught in
hunting."[302] According to Yasna, sacrifices to Mazda were given to
his poor.[303] In ancient Arabia the poor were allowed to partake of
the meal-offering {566} which was laid before the god Uqaiçir.[304]
In Zinder, in the Soudan, there are some trees, regarded as divine, to
which annual offerings of bullocks, sheep, and so forth, are made,
"though the poor of the country get the benefit of them."[305] In
Morocco even animals which are killed as _[(]âr_--a sacrifice
embodying a conditional curse--on departed saints or living people,
with a view to compelling them to grant a request, are commonly eaten
by the poor, though nobody else would dare to partake of
them.
[Footnote 302: Xenophon, _Anabasis_, v. 3. 9.]
[Footnote 303: _Yasna_, xxxiv. 5.]
[Footnote 304: Wellhausen, _Reste arabischen Heidentums_, p. 64.
Robertson Smith, _Religion of the Semites_, p. 223.]
[Footnote 305: Richardson, _Mission to Central Africa_, ii. 259.]
In other cases we find that almsgiving is itself regarded as a form of
sacrifice, or takes the place of it. In the sacred books of India the
two things are repeatedly mentioned side by side. "The householder
offers sacrifices, the householder practises austerities, the
householder distributes gifts."[306] Of a Brâhmana who has completed
his studentship it is said, "Let him always practise, according to his
ability, with a cheerful heart, the duty of liberality, both by
sacrifices and by charitable works, if he finds a worthy recipient for
his gifts."[307] "In the Krita age the chief virtue is declared to be
the performance of austerities, in the Tretâ divine knowledge, in the
Dvâpara the performance of sacrifices, in the Kali liberality
alone."[308] In the Egyptian 'Book of the Dead' the soul, on
approaching to the gods who are in the Tuat, pleads:--"I have done
that which man prescribeth and that which pleaseth the gods. I have
propitiated the god with that which he loveth. I have given bread to
the hungry, water to the thirsty, clothes to the naked, a boat to the
shipwrecked. I have made oblations to the gods and funeral offerings
to the departed."[309] In the Zoroastrian prayer Ahuna-Vairya, to
which great efficacy is ascribed, it is said, "He who relieves the
poor makes Ahura king."[310] {567} In the Koran almsgiving is often
mentioned in connection with prayer;[311] and the Zakât, or alms
prescribed by law, is regarded by the Muhammedans as a fundamental
part of their religion, hence infidels, who cannot perform acceptable
worship, have nothing to do with these alms.[312] Among the
Muhammedans of India it is common for men and women to vow "that when
what they desire shall come to pass, they will, in the name of God,
the Prophet, his companions, or some _wullee_, present offerings and
oblations." One of these offerings, called "an offering unto God,"
consists in preparing particular victuals, and in "distributing them
among friends and the poor, and giving any sort of grain, a sacrificed
sheep, clothes, or ready-money in alms to the indigent."[313] When the
destruction of the Temple with its altar filled the Jews with alarm as
they thought of their unatoned sins, Johanan ben Zakkai comforted them
by saying, "You have another means of atonement, as powerful as the
altar, and that is the work of charity, for it is said: 'I desired
mercy, and not sacrifice.'"[314] Many other passages show how closely
the Jews associated almsgiving with sacrifice. "He that giveth alms
sacrificeth praise."[315] "As sin-offering makes atonement for Israel,
so alms for the Gentiles."[316] "Almsdeeds are more meritorious than
all sacrifices."[317] An orphan is called an "altar to God."[318] And
as a sacrificer should be a person of a godly character, so it is
better to perish by famine than to receive an oblation from the
ungodly.[319] Alms were systematically collected in the synagogues,
and officers were appointed to make the collection.[320] So, also,
among the early Christians the collection of alms for the relief of
the poor was an act of the Church life itself. Almsgiving took place
in public worship, nay formed itself a part of worship. {568} Gifts of
natural produce, the so-called oblations, were connected with the
celebration of the Lord's Supper. They were offered to God as the
first-fruits of the creatures (_primitiæ creaturarum_), and a prayer
was said:--"O Lord, accept also the offerings of those who to-day
bring an offering, as Thou didst accept the offerings of righteous
Abel, the offering of our father Abraham, the incense of Zachariah,
the alms of Cornelius, and the two mites of the widow." These
oblations were not only used for the Lord's Supper, but they formed
the chief means for the relief of the poor. They were regarded as
sacrifice in the most special sense; and, as no unclean gift might be
laid upon the Lord's altar, profit made from sinful occupations was
not accepted as an oblation, neither were the oblations of impenitent
sinners.[321] The author of the Epistle to the Hebrews speaks of
almsgiving as a sacrifice of thanksgiving which continues after the
Jewish altar has been done away with.[322] Like sacrifice, almsgiving
is connected with prayer, as a means of making the prayer efficacious
and furnishing it with wings; the angel said to Cornelius, "Thy
prayers and thine alms are come up for a memorial before God."[323]
When the Christians were reproached for having no sacrifices, Justin
wrote, "We have been taught that the only honour that is worthy of Him
is not to consume by fire what He has brought into being for our
sustenance, but to use it for ourselves and those who need."[324] So,
also, Irenæus observes that sacrifices are not abolished in the New
Testament, though their form is indeed altered, because they are no
longer offered by slaves, but by freemen, of which just the oblations
are the proof.[325] And God has enjoined on Christians this sacrifice
of oblations, not because He needs them, but "in order that themselves
{569} might be neither unfruitful nor ungrateful."[326] St. Augustine
says, "The sacrifice of the Christians is the alms bestowed upon the
poor."[327]
[Footnote 306: _Institutes of Vishnu_, lix. 28.]
[Footnote 307: _Laws of Manu_, iv. 227. _Cf._ _ibid._ iv. 226.]
[Footnote 308: _Ibid._ i. 86.]
[Footnote 309: _Book of the Dead_, 125, Renouf's translation, p. 217.]
[Footnote 310: _Vendîdâd_, xix, 2.]
[Footnote 311: _Koran_, ii. 40, 104; ix. 54.]
[Footnote 312: Sell, _op. cit._ 284.]
[Footnote 313: Jaffur Shureef, _Qanoon-e-Islam_, p. 179.]
[Footnote 314: Kohler, in _Jewish Encyclopedia_, i. 467. _Hosea_,
vi. 6.]
[Footnote 315: _Ecclesiasticus_, xxxv. 2.]
[Footnote 316: Quoted by Levy, _Neuhebräisches und Chaldäisches
Wörterbuch_, iv. 173.]
[Footnote 317: Quoted _ibid._ iv. 173.]
[Footnote 318: _Constitutiones Apostolicæ_, iv. 3.]
[Footnote 319: _Ibid._ iv. 8.]
[Footnote 320: Addis, in _Encyclopædia Biblica_, i. 119.]
[Footnote 321: Uhlhorn, _op. cit._ i. 135 _sqq._ Harnack, _History of
Dogma_, i. 205.]
[Footnote 322: _Hebrews_, xiii. 14 _sqq._ _Cf._ Addis, in
_Encyclopædia Biblica_, i. 119.]
[Footnote 323: _Act_, x. 4. Cyprian, _De opere et eleemosynis_, 4. St.
Chrysostom, _Homilia VII., de P[oe]nitentia_, 6 (Migne, _Patrologiæ
cursus_, Ser. Gr. xlix. _sq._ 332).]
[Footnote 324: Justin, _Apologia I. pro Christianis_, 13.]
[Footnote 325: Irenæus, _Adversus hæreses_, iv. 18. 82.]
[Footnote 326: _Ibid._ iv. 17. 5.]
[Footnote 327: St. Augustine, _Sermo XLII._ 1 (Migne, _op. cit._
xxxviii. 252).]
The objection will perhaps be raised that I have here tried to trace
back the most beautiful of all religious virtues to a magical and
ritualistic origin without taking into due account the benevolent
feelings attributed to the Deity. But in the present connection I have
not had to show why charity, like other human duties, has been
sanctioned by religious beliefs, but why, in the ethics of the higher
religions, it has attained the same supreme importance as is otherwise
attached only to devotional exercises. And this is certainly a problem
by itself, for which the belief in a benevolent god affords no
adequate explanation. That the religious duty of charity is not merely
an outcome of the altruistic sentiment is well illustrated by the fact
that Zoroastrianism, whilst exalting almsgiving to the rank of a
cardinal virtue, at the same time excludes the sick man from the
community of the faithful until he has been cured and cleansed
according to prescribed rites.[328]
[Footnote 328: Darmesteter, 'Introduction' to the Zend-Avesta, in
_Sacred Books of the East_, iv. p. lxxx.]
CHAPTER XXIV
HOSPITALITY
WE have seen that in early society regard for the life and physical
well-being of a fellow-creature is, generally speaking, restricted to
members of the social unit, whereas foreigners are subject to a very
different treatment. But to this rule there are remarkable exceptions.
Side by side with gross indifference or positive hatred to strangers
we find, among the lower races, instances of great kindness displayed
even towards persons of a foreign race. The Veddahs are ready to help
any stranger in distress who asks for their assistance, and Sinhalese
fugitives who have sought refuge in their wilds have always been
kindly received.[1] Mr. Moffat was deeply affected by the sympathy
which some poor Bushmans showed to him during an illness, although he
was an utter stranger to them. Speaking of the mutual affection which
the Andaman Islanders display in their social relations, Mr. Man adds
that, "in their dealings with strangers, the same characteristic is
observable when once a good understanding has been established."[2] We
have also to remember the friendly manner in which the aborigines in
various parts of the savage world behaved to the earliest European
visitors. Nothing could be more courteous than the reception which
Cook and his party met with in New Caledonia, where the natives guided
and accompanied them on their {571} excursions. Forster says of the
Society Islanders, "We should indeed be ungrateful if we did not
acknowledge the kindness with which they always treated us."[3] De
Clerque observes with reference to the Papuans on the north coast of
New Guinea:--"The inhabitants seemed always ready to help. . . . On
our visit to the village all the male and female inhabitants with
their children flocked around me, and offered me cocoanuts and
sugar-cane; which, for the first contact with Europeans, is certainly
remarkable."[4] On the arrival of white people in various parts of
Australia, the natives were not only inoffensive, but disposed to meet
them on terms of amity and kindness.[5] "In a short intercourse," says
Eyre, "they are easily made friends. . . . On many occasions where I
have met these wanderers in the wild, far removed from the abodes of
civilisation, and when I have been accompanied only by a single native
boy, I have been received by them in the kindest and most friendly
manner, had presents made to me of fish, kangaroo, or fruit, had them
accompany me for miles to point out where water was to be procured,
and been assisted by them in getting at it."[6] Nor must we forget the
kind reception which Australian Blacks have given to men cast upon
their mercy,[7] and the tenderness with which the natives of Cooper's
Creek wept for the death of Burke and Wills, and comforted King, the
survivor.[8] Unfortunately, native races have often received anything
but favourable impressions from their earliest interviews with
Europeans; and both in Australia and elsewhere prolonged intercourse
with white people has, in many instances, induced them to change {572}
their friendly behaviour into unkindness or hostility. The Canadian
traders, for instance, when they first appeared among the Beaver and
Rocky Mountain Indians, were treated by these people with the utmost
hospitality and attention; but by their subsequent conduct they taught
the natives to withdraw their respect, and sometimes to treat them
with indignity.[9] Harmon writes, "I have always experienced the
greatest hospitality and kindness among those Indians who have had the
least intercourse with white people."[10] Many facts seem to verify
the statement made by a missionary who speaks from forty years'
experience among the natives of New Guinea and Polynesia, that our
conduct towards savages determines their conduct towards
us.[11]
[Footnote 1: Sarasin, _Ergebnisse naturwissenschaftlicher Forschungen
auf Ceylon_, iii. 544.]
[Footnote 2: Man, 'Aboriginal Inhabitants of the Andaman Islands,' in
_Jour. Anthr. Inst._ xii. 93.]
[Footnote 3: Forster, _Voyage Round the World_, ii. 157.]
[Footnote 4: De Clerque, in _Glimpses of the Eastern Archipelago_,
p. 14.]
[Footnote 5: Breton, _Excursions in New South Wales_, p. 218. Curr,
_The Australian Race_, i. 64. Salvado, _Mémoires historiques sur
l'Australie_, p. 340. Ridley, _Aborigines of Australia_, p. 24. Eyre,
_Journals of Expeditions of Discovery into Central Australia_,
ii. 212, 382.]
[Footnote 6: Eyre, _op. cit._ ii. 211.]
[Footnote 7: Mathew, 'Australian Aborigines,' in _Jour. & Proceed.
Roy. Soc. N. S. Wales_, xxiii. 388. Brough Smyth, _Aborigines of
Victoria_, ii. 229. Ridley, _Aborigines of Australia_, p. 22.]
[Footnote 8: Jung, 'Aus dem Seelenleben der Australier,' in
_Mittheilungen des Vereins für Erdkunde zu Leipzig_, 1877, p. 11 _sq._]
[Footnote 9: Mackenzie, _Voyage to the Frozen and Pacific Ocean_,
p. 149.]
[Footnote 10: Harmon, _Journal of Voyages and Travels in the Interior
of North America_, p. 315.]
[Footnote 11: Murray, _Forty Years' Mission Work in Polynesia and New
Guinea_, p. 499. For other instances of kindness displayed by savages
towards white men, see von Kotzebue, _Voyage of Discovery into the
South Sea_, iii. 174 (people of Radack); Yate, _Account of New
Zealand_, p. 102 _sq._; Dieffenbach, _Travels in New Zealand_, ii.
112; Keate, _Account of the Pelew Islands_, p. 329 _sq._; Earl,
_Papuans_, p. 79 (natives of Port Dory, New Guinea); Sarytschew,
'Voyage of ** Discovery to the North-East of Siberia,' in
_Collection of Modern and Contemporary Voyages and Travels_, vi. 78
(Aleuts); King and Fitzroy, _Voyages of the "Adventure" and "Beagle,"_
ii. 168, 174 (Patagonians); Wilson and Felkin, _Uganda_, i.
225.]
The friendly reception which white men have met with in savage
countries is closely connected with a custom which, as it seems,
prevails universally among the lower races while in their native
state,[12] as also among the {573} peoples of culture at the earlier
stages of their civilisation[13] {574} --hospitality towards strangers.
This custom presents several remarkable characteristics, which, to all
appearance, ill agree with their tribal or national exclusiveness
generally. The stranger is often welcomed with special marks of
honour. The best seat is assigned to him; the best food at the host's
disposal is set before {575} him; he takes precedence over all the
members of the household; he enjoys extraordinary privileges. M.
Hyades says of the Fuegians, "Quelque encombrée que soit une hutte, et
si réduite que soit la quantité d'aliments dont on dispose, le nouvel
arrivant est toujours assuré d'avoir une place près du foyer et une
part de la nourriture."[14] The Mattoal of California, though they are
sometimes heartlessly indifferent even to their parents, "will divide
the last shred of dried salmon with any casual comer who has not a
shadow of claim upon them, except the claim of that exaggerated and
supererogatory hospitality that savages use."[15] A Creek Indian would
not only receive into his house a traveller or sojourner of whatever
nation or colour, but would treat him as a brother or as his own
child, divide with him the last grain of corn or piece of flesh, and
offer him the most valuable things in his possession.[16] Among the
Arawaks, "when a stranger, and particularly an European, enters the
house of an Indian, every thing is at his command."[17]
Notwithstanding the Karen's suspicious nature, says Mr. Smeaton, his
hospitality is unbounded. "He will entertain every stranger that
comes, without asking a question. He feels himself disgraced if he
does not receive all comers, and give them the very best cheer he has.
The wildest Karen will receive a guest with a grace and dignity and
entertain him with a lavish hospitality that would become a duke.
Hundreds of their old legends inculcate the duty of receiving
strangers without regard to pecuniary circumstances either of host or
guest."[18] Among many uncivilised peoples it is customary for a man
to offer even his wife, or one of his wives, to the stranger for the
time he remains his guest.[19] The Bedouins of Nejd have a {576}
saying that "the guest while in the house is its lord";[20] and in the
Institutes of Vishnu we read that, as the Brâhmanas are lords over all
other castes, and as a husband is lord over his wives, so the guest is
the lord of his host.[21]
[Footnote 12: Azara, _Voyages dans l'Amérique méridionale_, ii. 91
(Guanas). Southey, _History of Brazil_, i. 247 (Tupis). Davis, _El
Gringo_, p. 421 (Pueblos). Lafitau, _M[oe]urs des sauvages
amériquains_, i. 106; ii. 88. Heriot, _Travels through the Canadas_,
p. 318 _sq._ Buchanan, _North American Indians_, p. 6. Perrot,
_Mémoire sur les m[oe]urs, coustumes et relligion des sauvages de
l'Amérique septentrionale_, pp. 69, 202. Neighbors, in Schoolcraft,
_Indian Tribes of the United States_, ii. 132 (Comanches). James,
_Expedition from Pittsburgh to the Rocky Mountains_, i. 321 _sq._
(Omahas). Morgan, _League of the Iroquois_, p. 327 _sqq._; Loskiel,
_History of the Mission of the United Brethren among the Indians in
North America_, i. 15; Colden, in Schoolcraft, _op. cit._ iii. 190
(Iroquois). Powers, _Tribes of California_, p. 183. Sproat, _Scenes
and Studies of Savage Life_, p. 56 _sqq._ (Ahts). Boas, 'Report on the
Indians of British Columbia,' in the _Report read at the Meeting of
the British Association_, 1889, p. 36. Keating, _Expedition to the
Source of St. Peter's River_, i. 101 (Potawatomis); ii. 167
(Chippewas). Richardson, _Arctic Searching Expedition_, ii. 18 (Crees
and Chippewas). _Idem_, in Franklin, _Journey to the Shores of the
Polar Sea_, p. 66; Mackenzie, _Voyages to the Frozen and Pacific
Oceans_, p. xcvi. (Crees). Dall, _Alaska_, p. 397; Sarytschew, _loc.
cit._ vi. 78; Sauer, _Billing's Expedition to the Northern Parts of
Russia_, p. 274 (Aleuts). Lyon, _Private Journal_, p. 349 _sq._;
Parry, _Second Voyage for the Discovery of a North-West Passage_, p.
526 (Eskimo of Igloolik). Egede, _Description of Greenland_, p. 126;
Cranz, _History of Greenland_, i. 172 _sq._; Kane, _Arctic
Explorations_, ii. 122; Holm, 'Ethnologisk Skizze af Angmagsalikerne,'
in _Meddelelser om Grönland_, x. 87, 175 _sq._ (Greenlanders).
Beechey, _Voyage to the Pacific and Behring's Strait_, ii. 571;
Richardson, _Arctic Searching Expedition_, i. 367; Seemann, _Voyage of
"Herald,"_ ii. 65 (Western Eskimo). Hooper, _Ten Months among the
Tents of the Tuski_, pp. 160, 193, 194, 208; Nordenskiöld, _Vegas färd
kring Asien och Europa_, ii. 145 (Chukchi). Dall, _op. cit._ pp. 381
(Tuski), 517 (Kamchadales), 526 (Ainos). Sarytschew, _loc. cit._ v. 67
(Kamchadales). Dobell, _Travels in Kamtschatka and Siberia_, i. 63, 82
_sq._ (Kamchadales); ii. 42 (Jakuts). Sauer, _op. cit._ p. 124
(Jakuts). Vámbéry, _Das Türkenvolk_, pp. 159 (Jakuts), 336 (natives of
Eastern Turkestan), 411 (Turkomans), 451 (Tshuvashes), 509 (Baskirs),
&c. Krasheninnikoff, _History of Kamschatka_, p. 236 (Kurile
Islanders). Georgi, _Russia_, i. 113 (Mordvins); iii. 111 (Tunguses),
167 (Koriaks); iv. 22 (Kalmucks). Bergmann, _Nomadische Streifereien
unter den Kalmüken_, ii. 281 _sqq._ Prejevalsky, _Mongolia_, i. 71
_sq._ Castrén, _Nordiska resor och forskningar_, i. 41 (Laplanders),
319 (Ostyaks). Scott Robertson, _Káfirs of the Hindu-Kush_, p. 187
_sq._ Fraser, _Tour through the Him[=a]l[=a] Mountains_, pp. 264
(people of Kunawar), 335 (Butias). Dalton, _Descriptive Ethnology of
Bengal_, pp. 46 (Kukis), 68 (Garos). Hunter, _Annals of Rural Bengal_,
i. 215 (Santals). Tickell, 'Memoir on the Hodésum,' in _Jour. Asiatic
Soc. Bengal_, ix. (pt. ii.) 807 _sq._ (Hos). Lewin, _Wild Races of
South-Eastern India_, p. 217 (Tipperahs). Colquhoun, _Amongst the
Shans_, pp. 160 _sq._ (Steins), 371 (Shans). Foreman, _Philippine
Islands_, p. 187. de Crespigny, 'Milanows of Borneo,' in _Jour. Anthr.
Inst._ v, 34. Low, _Sarawak_, pp. 243 (Hill Dyaks), 336 (Kayans).
Boyle, _Adventures among the Dyaks of Borneo_, p. 215. Ling Roth,
_Natives of Sarawak_, i. 82 (Sea Dyaks). Marsden, _History of
Sumatra_, p. 208 (natives of the interior of Sumatra). Raffles,
_History of Java_, i. 249; Crawfurd, _History of the Indian
Archipelago_, i. 53 (Javanese). Riedel, _De sluik- en kroesharige
rassen tusschen Selebes en Papua_, p. 41 (natives of Ambon and
Uliase). von Kotzebue, _op. cit._ iii. 165 (natives of Radack), 215
(Pelew Islanders). Hale, _U.S. Exploring Expedition. Vol.
VI.--Ethnography and Philology_, p. 95 (Kingsmill Islanders).
Macdonald, _Oceania_, p. 195 (Efatese). Erskine, _Cruise among the
Islands of the Western Pacific_, p. 273 _sq._; Williams and Calvert,
_Fiji and the Fijians_, p. 110; Anderson, _Travel in Fiji and New
Caledonia_, p. 134 _sq._ (Fijians). Ellis, _Polynesian Researches_, i.
95. _Idem_, _Tour through Hawaii_, p. 346 _sq._ Forster, _op. cit._
ii. 158 (Tahitians) 364 (natives of Tana), 394 (South Sea Islanders
generally). Cook, _Voyage round the World_, p. 40 (Tahitians).
Tregear, 'Niue,' in _Jour. Polynesian Soc._ ii. 13 (Savage Islanders),
Turner, _Samoa_, p. 114; Pritchard, _Polynesian Reminiscences_, p.
132; Brenchley, _Jottings during the Cruise of H.M.S. Curaçoa among
the South Sea Islands_, p. 76 (Samoans). Mariner, _Natives of the
Tonga Islands_, ii. 154. Yate, _op. cit._ p. 100; Dieffenbach, _op.
cit._ ii. 107 _sq._; Polack, _Manners and Customs of the New
Zealanders_, ii. 155 _sq._; Angas, _Savage Life and Scenes in
Australia and New Zealand_, ii. 22 (Maoris). Gason, 'Manners and
Customs of the Dieyerie Tribe,' in Woods, _Native Tribes of South
Australia_, p. 258; Brough Smyth, _op. cit._ i. 25; Salvado, _op.
cit._ p. 340 (Australian aborigines). Ellis, _History of Madagascar_,
i. 198; Sibree, _The Great African Island_, pp. 126, 129; Rochon,
_Voyage to Madagascar_, p. 62; Little, _Madagascar_, p. 61; Shaw,
'Betsileo,' in _Antananarivo Annual and Madagascar Magazine_, ii. 82.
Burchell, _Travels in the Interior of Southern Africa_, ii. 54
(Bushmans), 345 (Hottentots). Kolben, _Present State of the Cape of
Good Hope_, i. 166, 337; Le Vaillant, _Travels from the Cape of Good
Hope_, ii. 143 _sq._; Schinz, _Deutsch-Südwest-Afrika_, p. 81
(Hottentots). Lichtenstein, _Travels in Southern Africa_, i. 272;
Leslie, _Among the Zulus and Amatongas_, p. 203 (Kafirs). Casalis,
_Basutos_, pp. 209, 224. Andersson, _Lake Ngami_, 198 (Ovambo).
Macdonald, _Africana_, i. 27, 263 (Eastern Central Africans). Wilson
and Felkin, _op. cit._ i. 211, 225 (Waganda). Rowley, _Africa
Unveiled_, p. 47 (natives of Manganja, in the neighbourhood of Lake
Nyassa). New, _Life, Wanderings, and Labours in East Africa_, pp. 102
(Wanika), 361 (Taveta). Thomson, _Through Masai Land_, p. 64
(Wa-kwafi, of the Taveta). Tuckey, _Expedition to explore the River
Zaire_, p. 374 (Congo natives), Bosman, _Description of the Coast of
Guinea_, p. 108. Burton, _Two Trips to Gorilla Land_, i. 106
(Mpongwe). _Idem_, _Abeokuta_, i. 303 (Yoruba). Caillié, _Travels
through Central Africa_, i. 165 (Bagos). Chavanne, _Die Sahara_, p.
185 (Touareg). Hanoteau and Letourneux, _La Kabylie_, ii. 45 _sqq._
Munzinger, _Ostafrikanische Studien_, p. 534 (Barea). Lobo, _Voyage to
Abyssinia_, p. 82 _sq._
For the deteriorating influence which contact with a "higher culture"
exercises on savage hospitality, see Nansen, _First Crossing of
Greenland_, ii. 306 _sq._; Ellis, _Tour through Hawaii_, p. 346; von
Kotzebue, _op. cit._ iii. 250 (Hawaiians); Meade, _Ride through the
Disturbed Districts of New Zealand_, p. 164; Dieffenbach, _op. cit._
ii. 107, 108, 110.]
[Footnote 13: According to a law of the Peruvian Incas, strangers and
travellers should be treated as guests, and public houses were
provided for them (Garcilasso de la Vega, _First Part of the Royal
Commentaries of the Yncas_, ii. 34). For Yucatan, see Landa, _Relacion
de las cosas de Yucatan_, p. 134. Though hospitality, according to Mr.
Wells Williams (_Middle Kingdom_, i. 835), is not a trait of the
character of the modern Chinese, kindness to strangers and travellers
is enjoined in their moral and religious books (Chalmers, 'Chinese
Natural Theology,' in _China Review_, v. 281. Douglas, _Confucianism
and Taouism_, p. 273. _Indo-Chinese Gleaner_, iii. 160). In Corea it
would be a grave and shameful thing to refuse a portion of one's meal
with any person, known or unknown, who presents himself at eating-time
(Griffis, _Corea_, p. 288). For the Hebrews, see _Genesis_, xviii. 2
_sqq._, xxiv. 31 _sqq._; _Leviticus_, xix. 9 _sq._, xxv. 35;
_Deuteronomy_, xiv. 29, xvi. 11, 14; _Judges_, xix. 17 _sqq._; _Job_,
xxxiv. 32; also Bertholet, _Die Stellung der Israeliten und der Juden
zu den Fremden_, p. 22 _sqq._, and Nowack, _Lehrbuch der hebräischen
Archäologie_, p. 186 _sq._ For Muhammedans, see Lane, _Manners and
Customs of the Modern Egyptians_, p. 296 _sq._; Burckhardt, _Notes on
the Bedouins and Wahábys_, pp. 100-102, 192 _sqq._; Wood, _Journey to
the Source of the River Oxus_, p. 148; Hamilton, _Researches in Asia
Minor_, ii. 379. For ancient India, see Leist, _Alt-arisches Jus
Gentium_, pp. 39, 40, 223 _sqq._ For Greece, see Schmidt, _Ethik der
alten Griechen_, ii. 325 _sqq._ For Rome, see Leist, _Alt-arisches Jus
Civile_, i. 355 _sqq._; von Jhering, _Geist des römischen Rechts_, i.
227 _sq._ For ancient Teutons, see Grimm, _Deutsche Rechtsalterthümer_,
p. 399 _sq._; Gummere, _Germanic Origins_, p. 162 _sqq._; Keyser,
_Efterladte Skrifter_, ii. pt. ii. 93; Weinhold, _Altnordisches
Leben_, p. 441 _sqq._; Gudmundsson and Kålund, 'Sitte,' in Paul's
_Grundriss der germanischen Philologie_, iii. 450 _sq._ For
Slavonians, see Schrader, _Reallexikon der indogermanischen
Altertumskunde_, i. 270; Krauss, _Die Südslaven_, p. 644
_sqq._]
[Footnote 14: Hyades and Deniker, _Mission scientifique du Cap Horn_,
vii. 243.]
[Footnote 15: Powers, _op. cit._ p. 112.]
[Footnote 16: Bartram, 'Creek and Cherokee Indians,' in _Trans.
American Ethn. Soc._ iii. pt. i. 42.]
[Footnote 17: Hilhouse, in _Jour. Roy. Geo. Soc._ ii. 230. _Idem_,
_Indian Notices_, p. 14. _Cf._ von Martins, _Beiträge zur Ethnographie
Amerika's_, i. 692.]
[Footnote 18: Smeaton, _Loyal Karens of Burma_, p. 144 _sq._]
[Footnote 19: Westermarck, _History of Human Marriage_, p. 73 _sqq._]
[Footnote 20: Palgrave, _Journey through Central and Eastern Arabia_,
i. 345.]
[Footnote 21: _Institutes of Vishnu_, lxvii. 31. For other instances
of the precedence granted to guests, see Man, in _Jour. Anthr. Inst._
xii. 94, 148 (Andaman Islanders); Buchanan, _North American Indians_,
p. 324 (Indians of Pennsylvania); Lyon, _Private Journal_, p. 350
(Eskimo of Igloolik); Seemann, _Voyage of "Herald,"_ ii. 65 (Western
Eskimo); Krasheninnikoff, _op. cit._ p. 211 (Kamchadales), Georgi,
_op. cit._ iii. 153 _sq._ (Kamchadales), 183 _sq._ (Chukchi). Ling
Roth, _Natives of Sarawak_, i. 86 (Sea Dyaks); Mariner, _op. cit._ ii.
154 (Tonga Islanders); New, _op. cit._ p. 102 (Wanika); Hanoteau and
Letourneux, _op. cit._ ii. 45 (Kabyles); Wells Williams, _op. cit._ i.
540 (Chinese): Krauss, _op. cit._ p. 649 _sq._ (Southern Slavs).]
Custom may require that hospitality should be shown even to an enemy.
Captain Holm tells us of a Greenlander of bad character who, though he
had murdered his step-father, was received, and for a long time
entertained, when he paid a visit to the nearest kindred of the
murdered man; and this, as it seems, was agreeable to old custom.[22]
Among the Aeneze Bedouins, says Burckhardt, all means are reckoned
lawful to avenge the blood of a slain relative, "provided the homicide
be not killed while he is a guest in the tent of a third person, or if
he has taken refuge even in the tent of his deadly foe."[23] In
Afghanistan "a man's bitterest enemy is safe while he is under his
roof."[24] We read in the Hitopadesa:--"On even an enemy arrived at
the house becoming hospitality should be bestowed; the tree does not
withdraw its sheltering shadow from the wood-cutter. . . . The guest
is everyone's superior."[25] The old Norsemen considered it a duty to
treat a guest hospitably even though it came out that he had killed
the brother of his host.[26] A mediæval {577} knight granted safe
conduct through his territories to all who required it, including
those who asserted pretensions which, if established, would deprive
him of his possessions.[27]
[Footnote 22: Nansen, _First Crossing of Greenland_, ii. 305 _sq._]
[Footnote 23: Burckhardt, _Bedouins and Wahábys_, p. 87. _Cf._ Daumas,
_La vie Arabe_, p. 317 (Algerian Arabs).]
[Footnote 24: Elphinstone, _Kingdom of Caubul_, i. 296.]
[Footnote 25: _Hitopadesa_, Mitralâbhâ, 60, 62.]
[Footnote 26: Grimm, _Deutsche Rechtsalterthümer_, p. 400. Weinhold,
_Altnordisches Leben_, p. 441. For other instances of hospitality
towards enemies, see James, _Expedition to the Rocky Mountains_, i.
322 (Omahas); Bartram, in _Trans. American Ethn. Soc._ iii. pt. i. 42
(Creeks and Cherokees); Lomonaco, 'Sullerazze indigene del Brasile,'
in _Archivio per l'antropologia e la etnologia_, xix. 57 (Tupis);
Krauss, _op. cit._ p. 650 (Montenegrines).]
[Footnote 27: Mills, _History of Chivalry_, p. 154.]
To protect a guest is looked upon as a most stringent duty under all
circumstances. "Le Kabyle qui accorde son _ânaïa_ doit, sous peine
d'infamie, y faire honneur, dût-il s'exposer à tous les dangers. . . .
La violation de leur _ânaïa_ est la plus grave injure que l'on puisse
infliger à des Kabyles. Un homme qui viole, ou, suivant l'expression
consacrée, qui brise l'_ânaïa_ de son village ou de sa tribu, est puni
de mort et de la confiscation de tous ses biens; sa maison est
démolie."[28] Among the Bedouins a breach of the law of _dakheel_
"would be considered a disgrace not only upon the individual but upon
his family, and even upon his tribe, which never could be wiped out.
No greater insult can be offered to a man, or to his clan, than to say
that he has broken the _dakheel_."[29] Among the Aenezes, according to
Burckhardt, "a violation of hospitality, by the betraying of a guest,
has not occurred within the memory of man."[30] In Egypt, "most
Bedawees will suffer almost any injury to themselves or their families
rather than allow their guests to be ill-treated while under their
protection."[31] Among the Kandhs, "for the safety of a guest life and
honour are pledged; he is to be considered before a child"; in order
to save his guest a man is even allowed to speak falsely, which is
otherwise condemned by them as a heinous sin.[32] Vámbéry tells us of
cases in which the Kara-Kirghiz have preferred being harassed with war
by the Chinese to surrendering to them such Chinese fugitives as have
sought and received their hospitality.[33] Among the Ossetes the host
not only considers himself responsible for the safety of his guest,
{578} but "revenges the murder or wounding of the latter as he would
that of a kinsman."[34] In Albania it is considered infamous to leave
an injury inflicted on a guest unavenged.[35] Among the Takue, though
a man would accept compensation for the murder of a relative, he would
in all cases exact blood-revenge for the murder of his guest.[36] On
the other hand, in Sierra Leone a guest "is scarcely accountable for
any faults which he may commit, whether through inadvertency or
design, the host being considered as responsible for the actions of
'his stranger.'"[37]
[Footnote 28: Hanoteau and Letourneux, _op. cit._ ii. 61 _sq._]
[Footnote 29: Layard, _Discoveries in the Ruins of Nineveh and
Babylon_, p. 317.]
[Footnote 30: Burckhardt, _Bedouins and Wahábys_, p. 100. _Cf._
_ibid._ p. 192.]
[Footnote 31: Lane, _Modern Egyptians_, p. 297.]
[Footnote 32: Macpherson, _Memorials of Service in India_, pp. 65, 94.]
[Footnote 33: Vámbéry, _Das Türkenvolk_, p. 268. _Cf._ _ibid._ p. 411
(Turkomans).]
[Footnote 34: von Haxthausen, _Transcaucasia_, p. 412.]
[Footnote 35: Gop[vc]evi['c], _Oberalbanien und seine Liga_, p. 328.]
[Footnote 36: Munzinger, _Ostafrikanische Studien_, p. 208. Among the
Barea and Kunáma a man avenges the death of his guest by killing the
guest of the murderer (_ibid._ p. 477).]
[Footnote 37: Winterbottom, _Native Africans in the Neighbourhood of
Sierra Leone_, i. 214.]
Hospitality is not only regarded as a duty of the first order, but
has, in a remarkable degree, been associated with religion. Among the
doctrines held up for acceptance by the religious instructors of the
Iroquois there was the following precept:--"If a stranger wander about
your abode, welcome him to your home, be hospitable towards him, speak
to him with kind words, and forget not always to mention the Great
Spirit."[38] The natives of Aneiteum, of the New Hebrides, maintained
that generous hospitality would receive the highest reward in the Land
of the Dead.[39] The Kalmucks believe that want of hospitality will be
punished by angry gods.[40] The Kandhs say that the first duty which
the gods have imposed upon man is that of hospitality; and "persons
guilty of the neglect of established observances are punished by the
divine wrath, either during their current lives, or when they
afterwards return to animate other bodies," the penalties being death,
poverty, disease, the loss of children, or any other form of
calamity.[41] In the sacred books of India hospitality is repeatedly
spoken of as a most important duty, the discharge of which will be
{579} amply rewarded. "The inhospitable man," the Vedic singer tell
us, "acquires food in vain. I speak the truth--it verily is his death.
. . . He who eats alone is nothing but a sinner."[42] "He who does not
feed these five, the gods, his guests, those whom he is bound to
maintain, the manes, and himself, lives not, though he breathes."[43]
According to the Vishnu Purána, a person who neglects a poor and
friendless stranger in want of hospitality, goes to hell.[44] On the
other hand, by honouring guests a householder obtains the highest
reward.[45] "He who entertains guests for one night obtains earthly
happiness, a second night gains the middle air, a third heavenly
bliss, a fourth the world of unsurpassable bliss; many nights procure
endless worlds. That has been declared in the Veda."[46] It is said in
the Mahabharata that "he who gives food freely to a fatigued wayfarer,
whom he has never seen before, obtains great virtuous merit."[47]
According to Hesiod, Zeus himself is wrath with him who does evil to a
suppliant or a guest, and at last, in requital for his deed, lays on
him a bitter penalty.[48] Plato says:--"In his relations to strangers,
a man should consider that a contract is a most holy thing, and that
all concerns and wrongs of strangers are more directly dependent on
the protection of God, than wrongs done to citizens. . . . He who is
most able is the genius and the god of the stranger, who follows in
the train of Zeus, the god of strangers. And for this reason, he who
has a spark of caution in him, will do his best to pass through life
without sinning against the stranger. And of offences committed,
whether against strangers or fellow-country-men, that against
suppliants is the greatest."[49] Similar opinions prevailed in ancient
Rome. _Jus hospitii_, whilst {580} forming no part of the civil law,
belonged to _fas_; the stranger, who enjoyed no legal protection, was,
as a guest, protected by custom and religion.[50] The _dii hospitales_
and Jupiter were on guard over him;[51] hence the duties towards a
guest were even more stringent than those towards a relative.[52]
Cæsar[53] and Tacitus[54] attest that the Teutons considered it
impious to injure a guest or to exclude any human being from the
shelter of their roof. The God of Israel was a preserver of
strangers.[55] In the Talmud hospitality is described as "the most
important part of divine worship,"[56] as being equivalent to the duty
of honouring father and mother,[57] as even more meritorious than
frequenting the synagogue.[58] Muhammedanism likewise regards
hospitality as a religious duty.[59] "Whoever," said the Prophet,
"believes in God and the day of resurrection, must respect his
guest."[60] But the idea that a guest enjoys divine protection
prevailed among the Arabs long before the times of Muhammed.[61] The
Bedouins say that the guests are "guests of God."[62] The Christian
Church, again, regarded hospitality as a duty imposed by
Christ.[63]
[Footnote 38: Morgan, _League of the Iroquois_, p. 172.]
[Footnote 39: Inglis, _In the New Hebrides_, p. 31.]
[Footnote 40: Bergmann, _op. cit._ ii. 281 _sq._]
[Footnote 41: Macpherson, 'Religious Opinions and Observances of the
Khonds,' in _Jour. Roy. Asiatic Soc._ vii. 196.]
[Footnote 42: _Rig-Veda_, x. 117. 6.]
[Footnote 43: _Laws of Manu_, iii. 72. _Cf._ _Institutes of Vishnu_,
lxvii. 45.]
[Footnote 44: _Vish['n]u Purá['n]a_, p. 305.]
[Footnote 45: _Institutes of Vishnu_, lxvii. 28, 32.]
[Footnote 46: _Âpastamba_, ii. 3. 7. 16.]
[Footnote 47: _Mahabharata_, Vana Parva, ii. 61, pt. v. p. 5.]
[Footnote 48: Hesiod, _Opera et dies_, 331 _sq._ (333 _sq._).]
[Footnote 49: Plato, _Leges_, v. 729 _sq._]
[Footnote 50: Servius, _In Virgilii Æneidos_, iii. 55: "Fas omne; et
cognationis, et iuris hospitii." von Jhering, _Geist des römischen
Rechts_, i. 227. Leist, _Alt-arisches Jus Civile_, i. 103, 358 _sq._]
[Footnote 51: Servius, _In Virgilii Æneidos_, i. 736. Livy, _Historiæ
Romanæ_, xxxix. 51. Tacitus, _Annales_, xv. 52. Plautus, _P[oe]nuli_,
v. 1. 25.]
[Footnote 52: Gellius, _Noctes Atticæ_, v. 13. 5: "In officiis apud
maiores ita observatum est, primum tutelae, deinde hospiti, deinde
clienti, tum cognato, postea affini."]
[Footnote 53: Cæsar, _De bello Gallico_, vi. 23.]
[Footnote 54: Tacitus, _Germania_, 21.]
[Footnote 55: _Psalms_, cxlvi. 9.]
[Footnote 56: Deutsch, _Literary Remains_, p. 57.]
[Footnote 57: _Kiddushin_, fol. 39 B, quoted by Hershon, _Treasures of
the Talmud_, p. 145.]
[Footnote 58: _Sabbath_, fol. 127 A, quoted by Katz, _Der wahre
Talmudjude_, p. 103.]
[Footnote 59: _Koran_, iv. 40 _sqq._]
[Footnote 60: Lane, _Arabian Society in the Middle Ages_, p. 142.]
[Footnote 61: Wellhausen, _Reste arabischen Heidentums_, p. 223 _sq._]
[Footnote 62: Doughty, _Arabia Deserta_, i. 228, 504.]
[Footnote 63: Laurent, _Études sur l'histoire de l'Humanité_, vii. 346.]
That a stranger, who under other circumstances is treated as an
inferior being or a foe, liable to be robbed and killed with impunity,
should enjoy such extraordinary privileges as a guest, is certainly
one of the most curious contrasts which present themselves to a
student of the moral ideas of mankind. It may be asked, why should
{581} he be received at all? Of course, he stands in need of
protection and support, but why should those who do not know him care
for that?
One answer is that his helpless condition may excite pity; facts seem
to prove that even among savages the altruistic feelings, however
narrow, can be stirred by the sight of a suffering and harmless
stranger. Another answer is that the host himself may expect to reap
benefit from his act. And there can be little doubt that the rules of
hospitality are in the main based on egoistic considerations.
It has been justly observed that in uncivilised countries, where there
is no public accommodation for travellers, "hospitality is so
necessary, and so much required by the mutual convenience of all
parties, as to detract greatly from its merit as a moral quality."[64]
When the stranger belongs to a community with which a reciprocity of
intercourse prevails, it is prudent to give him a hearty reception; he
who is the host to-day may be the guest tomorrow. "If the Red Indians
are hospitable," says Domenech, "they also look for their hospitality
being returned with the same marks of respect and consideration."[65]
Moreover, the stranger is a bearer of news and tidings, and as such
may be a welcome guest where communication between different places is
slow and rare.[66] During my wanderings in the remote forests of
Northern Finland I was constantly welcomed with the phrase, "What
news?" But the stranger may be supposed to bring with him something
which is valued even more highly, namely, good luck or blessings.
[Footnote 64: Winterbottom, _op. cit._ i. 214.]
[Footnote 65: Domenech, _Seven Years' Residence in the Great Deserts
of North America_, ii. 319. _Cf._ Dunbar, 'Pawnee Indians.' in
_Magazine of American History_, viii. 745; Brett, _Indian Tribes of
Guiana_, p. 347; Bernau, _Missionary Labours in British Guiana_, p.
51; von den Steinen, _Unter den Naturvölkern Zentral-Brasiliens_, p.
333 _sq._ (Bakaïri); Georgi, _op. cit._ iii. 154 (Kamchadales);
Smeaton, _op. cit._ p. 146 (Karens); Ellis, _Polynesian Researches_,
i. 95 (Society Islanders); Pritchard, _Polynesian Reminiscences_, p.
132, and Brenchley, _op. cit._ p. 76 (Samoans); Williams and Calvert,
_op. cit._ p. 110, and Anderson, _Notes of Travel in Fiji and New
Caledonia_, p. 135 (Fijians); Chavanne, _Die Sahara_, p. 393 (Arabs of
the Sahara).]
[Footnote 66: Wright, _Domestic Manners and Sentiments in England
during the Middle Ages_, p. 329.]
During the first days of my stay at Demnat, in the Great Atlas, the
natives in spite of their hostility towards Europeans, said they were
quite pleased with my coming to see them, because I had brought with
me rain and an increase of the import of victuals, which just before
my arrival had been very scarce. So, too, whilst residing among the
Andjra mountaineers in the North of Morocco, I was said to be a person
with "propitious ankles," because, since I settled down among them,
the village where I stayed was frequently visited by Shereefs--presumed
descendants of the Prophet Muhammed--who are always highly valued
guests on account of the _baraka_, or holiness, with which they are
supposed in a smaller or greater degree to be endowed. The stranger
may be a source of good fortune either involuntarily, as a bearer of
luck, or through his good wishes; and there is every reason to hope
that he will, if treated hospitably, return the kindness of his host
with a blessing. According to the old traveller d'Arvieux, strangers,
who come to an Arab village are received by the Sheikh with some such
words as these:--"You are welcome; praised be God that you are in good
health; your arrival draws down the blessing of heaven upon us; the
house and all that is in it is yours, you are masters of it."[67] It
is said in one of the sacred books of India that through a Brâhmana
guest the people obtain rain, and food through rain, hence they know
that "the hospitable reception of a guest is a ceremony averting
evil."[68] When we read in the Laws of Manu that "the hospitable
reception of guests procures wealth, fame, long life, and heavenly
bliss,"[69] it is also reasonable to suppose that this supernatural
reward is a result of blessings invoked on the host. In the
'Suppliants' of Aeschylus the Chorus sings:--"Let us utter for the
Argives blessings in requital of their blessings. And may Zeus of
Strangers watch to their fulfilment the rewards that issue from a
stranger's tongue, that {583} they reach their perfect goal."[70] We
can now understand the eagerness with which guests are sought for.
When a guest enters the hut of a Kalmuck, "the host, the hostess, and
everybody in the hut, rejoice at the arrival of the stranger as at an
unexpected fortune."[71] Among the Arabs of Sinai, "if a stranger be
seen from afar coming towards the camp, he is the guest for that night
of the first person who descries him, and who, whether a grown man or
a child, exclaims, 'There comes my guest.' Such a person has a right
to entertain the guest that night. Serious quarrels happen on these
occasions; and the Arabs often have recourse to their great oath--'By
the divorce (from my wife) I swear that I shall entertain the guest';
upon which all opposition ceases."[72] It is also very usual in the
East to eat before the gate of the house where travellers pass, and
every stranger of respectable appearance is invariably requested to
sit down and partake of the repast.[73] Among the Maoris, "no sooner
does a stranger appear in sight, than he is welcomed with the usual
cry of 'Come hither! come hither!' from numerous voices, and is
immediately invited to eat of such provisions as the place
affords."[74]
[Footnote 67: d'Arvieux, _Travels in Arabia the Desart_, p. 131 _sq._]
[Footnote 68: _Vasishtha_, xi. 13.]
[Footnote 69: _Laws of Manu_, iii. 106.]
[Footnote 70: Aeschylus, _Supplices_, 632 _sqq._]
[Footnote 71: Bergmann, _op. cit._ ii. 282.]
[Footnote 72: Burckhardt, _Bedouin and Wahábys_ p. 198.]
[Footnote 73: _Idem_, _Arabic Proverbs_, p. 218. Chasseb[oe]uf de
Volney, _Travels through Syria and Egypt_, i. 413.]
[Footnote 74: Yate, _op. cit._ p. 100. _Cf._ Turner, _Nineteen Years
in Polynesia_, p. 325 (Samoans); Sproat, _op. cit._ p. 57 (Ahts).]
If efficacy is ascribed to the blessings even of an ordinary man, the
blessings of a stranger are naturally supposed to be still more
powerful. For the unknown stranger, like everything unknown and
everything strange, arouses a feeling of mysterious awe in
superstitious minds. The Ainos say, "Do not treat strangers
slightingly, for you never know whom you are entertaining."[75]
According to the Hitopadesa, "a guest consists of all the
deities."[76] It is significant that in the writings of ancient India,
Greece, and Rome, guests are mentioned next after gods as due objects
of regard.[77] Thus Aeschylus speaks of a man's {584} "impious conduct
to a god, or a stranger, or to his parents dear."[78] According to
Homeric notions, "the gods, in the likeness of strangers from far
countries, put on all manner of shapes, and wander through the cities,
beholding the violence and the righteousness of men."[79] The author
of the Epistle to the Hebrews writes, "Be not forgetful to entertain
strangers: for thereby some have entertained angels unawares."[80]
[Footnote 75: Batchelor, _Ainu and their Folk-Lore_, p. 259.]
[Footnote 76: _Hitopadesa_, Mitralâbhâ, 65.]
[Footnote 77: _Anugitâ_, 3, 31 (_Sacred Books of the East_, viii. 243,
361). Gellius, _Noctes Atticæ_, v. 13. 5.]
[Footnote 78: Aeschylus, _Eumenides_, 270 _sq._]
[Footnote 79: _Odyssey_, xvii. 485 _sqq._]
[Footnote 80: _Hebrews_, xiii. 2.]
The visiting stranger, however, is regarded not only as a potential
benefactor, but as a potential source of evil. He may bring with him
disease or ill-luck. He is commonly believed to be versed in
magic;[81] and the evil wishes and curses of a stranger are greatly
feared, owing partly to his quasi-supernatural character, partly to
the close contact in which he comes with the host and his belongings.
[Footnote 81: Frazer, _Golden Bough_, i. 298 _sqq._]
In the Mentawey Islands, in the Malay Archipelago, "if a stranger
enters a house where there are children, the father or some other
member of the family who happens to be present, takes the ornament
with which the children decorate their hair, and hands it to the
stranger, who holds it in his hands for a while, and then gives it
back"; this is supposed to protect the child from the evil effect
which the eye of a stranger might have on it.[82] With reference to
the Californian Pomo, Mr. Powers states, "Let a perfect stranger enter
a wigwam and offer the lodge-father a string of beads for any object
that takes his fancy--merely pointing to it, but uttering no word--and
the owner holds himself bound in savage honour to make the exchange,
whether it is a fair one or not." When we compare this idea of "savage
honour" with certain cases mentioned in the last chapter, we cannot
doubt that it is based on superstitious fear; indeed, the next day the
former owner of the article "may thrust the stranger through with his
spear, or crush his forehead with a pebble from his sling, and the
bystanders will look {585} upon it as only the rectification of a bad
bargain."[83] Among the African Herero "no curse is regarded as
heavier than that which one who has been inhospitably treated would
hurl at those who have driven him from the hearth."[84] According to
Greek ideas, guests and suppliants had their Erinyes[85]
--personifications of their curses; and it would be difficult to
attribute any other meaning to "the genius ([Greek: dai/môn]) and the
god of the stranger, who follow in the train of Zeus," spoken of by
Plato, and to the Roman _dii hospitales_, in their capacity of avengers
of injuries done to guests. Aeschylus represents Apollo as saying, "I
shall assist him (Orestes), and rescue my own suppliant; for terrible
both among men and gods is the wrath of a refugee, when one abandons
him with intent."[86] It is no doubt the same idea that the Chorus in
the 'Suppliants' expresses, in a modified form, when singing:--"Grievous
is the wrath of Zeus Petitionary. . . . I must needs hold in awe the
wrath of Zeus Petitionary, for that is the supremest on earth."[87]
Âpastamba's Aphorisms contain a sûtra the object of which is to show
the absolute necessity of feeding a guest, owing to the fact that, "if
offended, he might burn the house with the flames of his anger";[88]
for "a guest comes to the house resembling a burning fire,"[89] "a
guest rules over the world of Indra."[90] According to the Institutes
of Vishnu, "one who has arrived as a guest and is obliged to turn home
disappointed in his expectations, takes away from the man to whose
house he has come his religious merit, and throws his own guilt upon
him";[91] and the {586} same idea is found in many other ancient books
of India.[92] That a dissatisfied guest, or a Brâhmana,[93] thus takes
with him the spiritual merit of his churlish host, allows of a quite
literal interpretation. In Morocco, a Shereef is generally unwilling
to let a stranger kiss his hand, for fear lest the stranger should
extract from him his _baraka_, or holiness; and the Shereefs of
Wazzari are reputed to rob other Shereefs, who visit them, of their
holiness, should the latter leave behind any remainder of their meals,
even though it be only a bone.
[Footnote 82: Rosenberg, _Der Malayische Archipel_, p. 198.]
[Footnote 83: Powers, _op. cit._ p. 153. The same privilege as "the
perfect stranger" possesses among the Pomo, was granted by the tribes
of the Niger Delta to the Ibo girl who was destined to be offered as a
sacrifice. She "was allowed to claim any piece of cloth or any
ornament she set her eyes upon, and the native to whom it belonged was
obliged to present it to her" (Comte de Cardi, 'Ju-ju Laws and
Customs,' in _Jour. Anthr. Inst._ xxix. 54).]
[Footnote 84: Ratzel, _History of Mankind_, 480.]
[Footnote 85: Plato, _Epistolæ_, viii. 357. Apollonius Rhodius,
_Argonautica_, iv. 1042 _sq._]
[Footnote 86: Aeschylus, _Eumenides_, 232 _sqq._]
[Footnote 87: _Idem_, _Supplices_, 349, 489.]
[Footnote 88: _Sacred Books of the East_ ii. 114, n. 3.]
[Footnote 89: _Âpastamba_, ii. 3. 6. 3.]
[Footnote 90: _Laws of Manu_, iv. 182.]
[Footnote 91: _Institutes of Vishnu_, lxvii. 33.]
[Footnote 92: _Vasishtha_, viii. 6. _Laws of Manu_, ii. 100.
_Hitopadesa_, Mitralâbhâ, 64.]
[Footnote 93: _Vasishtha_, viii. 6. _Laws of Manu_, iii. 100.]
The efficacy of a wish or a curse depends not only upon the potency
which it possesses from the beginning, owing to certain qualities in
the person from whom it originates, but also on the vehicle by which
it is conducted--just as the strength of an electric shock depends
both on the original intensity of the current and on the condition of
the conductor. As particularly efficient conductors are regarded
blood, bodily contact, food, and drink. In Morocco, the duties of a
host are closely connected with the institution of _l-[(]âr_, one of
the most sacred customs of that country. If a person desires to compel
another to help him, or to forgive him, or, generally, to grant some
request, he makes _[(]âr_ on him. He kills a sheep or a goat or only a
chicken at the threshold of his house, or at the entrance of his tent;
or he grasps with his hands either the person whom he invokes, or that
person's child, or the horse which he is riding; or he touches him
with his turban or a fold of his dress. In short, he establishes some
kind of contact with the other person, to serve as a conductor of his
wishes and of his conditional curses. It is universally believed that,
if the person so appealed to does not grant the request, his own
welfare is at stake, and that the danger is particularly great if an
animal has been killed at his door, and he steps over the blood or
only catches a glimpse of it. As appears from the expression, "This is
_[(]âr_ on you if you do not do this or that," the blood, or {587} the
direct bodily contact, is supposed to transfer to the other person a
conditional curse:--If you do not help me, then you will die, or your
children will die, or some other evil will happen to you. So also the
owner of a house or a tent to which a person has fled for refuge must,
in his own interest, assist the fugitive, who is in his _[(]âr_; for,
by being in his dwelling, the refugee is in close contact with him and
his belongings. Again, the restraint which a common meal lays on those
who partake of it is conspicuous in the usual practice of sealing a
compact of friendship by eating together at the tomb of some saint.
The true meaning of this is made perfectly clear by the phrase that
"the food will repay" him who breaks the compact. The sacredness of
the place adds to the efficacy of the imprecation, but its vehicle,
the real punisher, is the eaten food, because it embodies a
conditional curse.
Now the idea underlying these customs is certainly not restricted to
Morocco. As will be shown in subsequent chapters, blood is very
commonly used as a conductor of conditional curses; for instance, one
object of the practice of sacrifice is to transfer an imprecation to
the god by means of the blood of the victim. Bodily contact is another
common means of communicating curses; and this accounts for many
remarkable cases of compulsory hospitality and protection which have
been noticed in different quarters of the world. In Fiji "the same
native who within a few yards of his house would murder a coming or
departing guest for sake of a knife or a hatchet, will defend him at
the risk of his own life as soon as he has passed his threshold."[94]
In the Pelew Islands "an enemy may not be killed in a house,
especially not in the presence of the host."[95] If an Ossetian
receives into his house a stranger whom he afterwards discovers to be
a man to whom he owes blood-revenge, this makes no difference in his
hospitality; but when the guest takes his leave, the {588} host
accompanies him to the boundary of the village, and on parting from
him exclaims, "Henceforth beware!"[96] Among the Kandhs, if a man can
make his way by any means into the house of his enemy he cannot be
touched, even though his life has been forfeited to his involuntary
host by the law of blood-revenge.[97] In none of these cases is an
explanation given of the extraordinary privilege granted to the
stranger; but it seems highly probable that it has the same origin as
the exactly similar custom prevalent among the Moors. In other words,
as soon as the stranger has come in touch with a person by entering
his house, he is thought to be able to transmit to that person and his
family and his property any evil wishes he pleases. So, also, in the
East any stranger may place himself under the protection of an Arab by
merely touching his tent or his tent-ropes,[98] and after this is done
"it would be reckoned a disgraceful meanness, an indelible shame, to
satisfy even a just vengeance at the expense of hospitality."[99]
"Amongst the Shammar," says Layard, "if a man can seize the end of a
string or thread, the other end of which is held by his enemy, he
immediately becomes his Dakheel [or _protégé_]. If he touch the canvas
of a tent, or can even throw his mace towards it, he is the Dakheel of
its owner. If he can spit upon a man or touch any article belonging to
him with his teeth, he is Dakhal, unless of course, in case of theft,
it be the person who caught him. . . . The Shammar never plunder a
caravan within sight of their encampment, for as long as a stranger
can see their tents they consider him their Dakheel."[100] But one of
the Bedouin tribes described by Lady Anne and Mr. Blunt, whilst ready
to rob the stranger who comes to their tents, {589} "count their
hospitality as beginning only from the moment of his eating with
them."[101] All Bedouins regard the eating of "salt" together as a
bond of mutual friendship, and there are tribes who quite in
accordance with the Moorish principle, "the food will repay
you"--require to renew this bond every twenty-four hours, or after two
nights and the day between them, since otherwise, as they say, "the
salt is not in their stomachs,"[102] and can therefore no longer
punish the person who breaks the contract. The "salt" which gives a
claim to protection consists in eating even the smallest portion of
food belonging to the protector.[103] The Sultan Saladin did not allow
the Crusader Renaud de Chatillon, when brought before him as a
prisoner, to quench his thirst in his tent, for, had he drunk water
there, the enemy would have been justified in regarding his life as
safe.[104] We find a similar custom among the Omaha Indians: "should
an enemy appear in the lodge and receive a mouthful of food or water,
or put the pipe in his mouth, he cannot be injured by any member of
the tribe, as he is bound for the time being by the ties of
hospitality, and they are compelled to protect him and send him home
in safety."[105] In these and similar cases, where there is no common
meal, the guest may nevertheless transmit to his host a curse by the
exceedingly close contact established between him and the food or
drink or tobacco of the host, according to the principle of _pars pro
toto_. This is an idea very familiar to the primitive mind. It lies,
for instance, at the bottom of the common belief that a person may
bewitch his enemy by getting hold of some of his spittle or some
leavings of his food--a belief which has led to the custom of guests
carrying away with them all they are unable to eat of the food which
is placed before them, {590} out of dread lest the residue of their
meal should be eaten by somebody else.[106] The magic wire may conduct
imprecations in either direction. In Morocco, if a person gives to
another some food or drink, it is considered dangerous, not only for
the recipient to receive it without saying, "In the name of God," but
also for the giver to give it without uttering the same formula, by
way of precaution.[107]
[Footnote 94: Wilkes, _U.S. Exploring Expedition_, iii. 77.]
[Footnote 95: Kubary, 'Die Palau-Inseln in der Südsee,' in _Journal
des Museum Godeffroy_, iv. 25.]
[Footnote 96: von Haxthausen, _Transcaucasia_, p. 412.]
[Footnote 97: Macpherson, _Memorials of Service in India_, p. 66.]
[Footnote 98: Robertson Smith, _Kinship and Marriage in Early Arabia_,
p. 48. Blunt, _Bedouin Tribes of the Euphrates_, ii. 211.]
[Footnote 99: Chasseb[oe]uf de Volney, _op. cit._ i. 412.]
[Footnote 100: Layard, _op. cit._ p. 317 _sq._ Burckhardt says
(_Bedouins and Wahábys_, p. 72) that one of the most common oaths in
the domestic life of the Bedouins is "to take hold with one hand of
the _wasat_, or middle tent-pole, and to swear 'by the life of this
tent and its owners.'"]
[Footnote 101: Blunt, _op. cit._ ii. 211.]
[Footnote 102: Burton, _Pilgrimage to Al-Madinah and Meccah_, ii. 112.
Doughty, _op. cit._ i. 228.]
[Footnote 103: Burckhardt, _Bedouins and Wahábys_, p. 187. Quatremère,
'Mémoire sur les asiles chez les Arabes,' in _Mémoires de l'Institut
de France, Académie des Inscriptions et Belles-Lettres_, xv. pt. ii.
346 _sqq._]
[Footnote 104: Quatremère, _loc. cit._ p. 346.]
[Footnote 105: Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._
iii. 271.]
[Footnote 106: Shortland, _Traditions and Superstitions of the New
Zealanders_, pp. 86, 97. _Cf._ Ellis, _Tour through Hawaii_, p. 347;
Harmon, _op. cit._ p. 361 (Indians on the east side of the Rocky
Mountains).]
[Footnote 107: Isaac also blessed his son by eating of _his_ food
(_Genesis_, xxvii. 4, 19, 24). The subject of hospitality has been
incidentally dealt with by Mr. Crawley in his interesting book, _The
Mystic Rose_ (p. 239 _sqq._; _cf._, also, p. 124 _sqq._). I must leave
the reader to decide how far the theory I am here advocating, which
mainly rests upon my researches in Morocco, coincides with his. All
through his book Mr. Crawley lays much emphasis on the principle of
transference; but, if I understand him rightly, he also regards
commensality as involving a supposed "exchange of personality" between
the host and the guest, in consequence of which "injury done to B by A
is equivalent to injury done by A to himself" (p. 237). To this
opinion I cannot subscribe (_cf._ _infra_, on the Origin and
Development of the Altruistic Sentiment). So far as I can see, the
mutual obligations arising from eating together are fundamentally
based on the idea that the common meal serves as a conductor of
conditional imprecations.]
The stranger thus being looked upon as a more or less dangerous
individual, it is natural that those who are exposed to the danger
should do what they can to avert it. With this end in view certain
ceremonies are often performed immediately on his arrival. Many such
reception ceremonies have been described by Dr. Frazer,[108] but I
shall add a few others which seem to serve the object of either
transferring to the stranger conditional curses or purifying him from
dangerous influences. I am told by a native that among some of the
nomadic Arabs of Morocco, as soon as a stranger appears in the
village, some water, or, if he be a person of distinction, some milk,
is presented to him. Should he refuse to partake of it, he is not
allowed to go freely about, but has to stay in the village mosque. On
asking for an explanation of this custom, I was told that it is a
precaution against the stranger; should he steal or otherwise
misbehave himself, the drink would cause his knees to swell so that he
could not escape. In other words, he has drunk a conditional
curse.[109] The {591} Arabs of a tribe in Nejd "welcome" a guest by
pouring on his head a cup of melted butter,[110] the South African
Herero greet him with a vessel of milk.[111] Sir S. W. Baker describes
a reception custom practised by the Arabs on the Abyssinian frontier,
which is exactly similar to one form of _l-[(]âr_ of the Moors:--"The
usual welcome upon the arrival of a traveller, who is well received in
an Arab camp, is the sacrifice of a fat sheep, that should be
slaughtered at the door of his hut or tent, so that the blood flows to
the threshold."[112] Reception sacrifices also occur among the
Shulis,[113] in Liberia,[114] and in Afghanistan.[115] Among the
Indians of North America, again, it is a common rule that a dish of
food should be placed before the new-comer immediately on his arrival,
that he should taste of it even though he has just arisen from a
feast, and that no word should be spoken to him or no question put to
him until he has partaken of the food.[116] Among the Omahas "the
master of the house is evidently ill at ease, until the food is
prepared for eating; he will request his squaws to expedite it, and
will even stir the fire himself."[117] Among many peoples it is
considered necessary that the host should give food to his guest
before he eats himself. This is a rule on which much stress is laid in
the literature of ancient India.[118] A Brâhmana never takes food
"without having offered it duly to gods and guests."[119] "He who eats
before his guest consumes the rood, the prosperity, the issue, the
cattle, the merit which his family acquired by sacrifices and
charitable works."[120] It is probable that this punishment has
something to do {592} with the evil eye of the neglected guest, for
the idea of eating the evil wishes of others was evidently quite
familiar to the ancient Hindus. It is said in Âpastamba's
Aphorisms:--"A guest who is at enmity with his host shall not eat his
food, nor shall he eat the food of a host who hates him or accuses him
of a crime, or of one who is suspected of a crime. For it is declared
in the Veda that he who eats the food of such a person eats his
guilt."[121] In Tonga Islands, "at meals strangers or foreigners are
always shewn a preference, and females are helped before men of the
same rank"--according to our informant, "because they are the weaker
sex and require attention."[122] As to the correctness of this
explanation, however, I have some doubts; the Moors, also, at their
feasts, allow the women to eat first, and one reason they give for
this custom is that otherwise the hungry women might injure the men
with their evil eyes. In Hawaii the host and his family do not at all
partake of the entertainment with which a passing visitor is generally
provided on arriving among them;[123] and that their abstinence is due
to superstitious fear is all the more probable as, among the same
people, it is the custom for the guest invariably to carry away with
him all that remains of the entertainment.[124]
[Footnote 108: Frazer, _Golden Bough_, i. 299 _sqq._]
[Footnote 109: _Cf._ the "trial of jealousy" in _Numbers_. v. 11
_sqq._, particularly verse 22: "This water that causeth the curse
shall go into thy bowels, to make thy belly to swell, and thy thigh
to rot."]
[Footnote 110: Burckhardt, _Bedouins and Wahábys_, p. 102.]
[Footnote 111: Ratzel, _op. cit._ ii. 480.]
[Footnote 112: Baker, _Nile Tributaries of Abyssinia_, p. 94.]
[Footnote 113: _Emin Pasha in Central Africa_, p. 107.]
[Footnote 114: Trumbull, _Threshold Covenant_, p. 9.]
[Footnote 115: Frazer, _Golden Bough_, i. 303.]
[Footnote 116: Lafitau, _op. cit._ ii. 88. James, _Expedition to the
Rocky Mountains_, i. 321 _sq._ Morgan, _League of the Iroquois_, p.
328. Sproat, _op. cit._ p. 57 (Ahts).]
[Footnote 117: James, _op. cit._ i. 322.]
[Footnote 118: _Gautama_, v. 25.]
[Footnote 119: _Mahabharata_, Shanti Parva, clxxxix. 2 _sq._, pt.
xxviii. _sq._ p. 281.]
[Footnote 120: _Âpastamba_, ii. 3. 7. 3.]
[Footnote 121: _Ibid._ ii. 3. 6. 19 _sq._ _Cf._ _Proverbs_, xxiii. 6:
"Eat not the bread of him that hath an evil eye."]
[Footnote 122: Mariner, _op. cit._ ii. 154.]
[Footnote 123: Ellis, _Tour through Hawaii_, p. 347.]
[Footnote 124: _Ibid._ p. 347.]
Among the precautions taken against the visiting stranger kind and
respectful treatment is of particularly great importance. No traveller
among an Arabic-speaking people can fail to notice the contrast
between the lavish welcome and the plain leave-taking. The profuse
greetings mean that the stranger will be treated as a friend and not
as an enemy; and it is particularly desirable to secure his good-will
in the beginning, since the first glance of an evil eye is always held
to be the most dangerous. We can now realise that the extreme regard
shown to a guest, and the preference given to him in every matter,
must, in a {593} large measure, be due to fear of his anger, as well
as to hope of his blessings. Even the peculiar custom which requires a
host to lend his wife to a guest becomes more intelligible when we
consider the supposed danger of the stranger's evil eye or his curses,
as also the benefits which may be supposed to result from his
love.[125] And when the guest leaves, it is wise of the host to accept
no reward; for there maybe misfortune in the stranger's
gift.
[Footnote 125: Egede informs us (_op. cit._ p. 140) that the native
women of Greenland thought themselves fortunate if an Angekokk, or
"prophet," honoured them with his caresses; and some husbands even
paid him for having intercourse with their wives, since they believed
that the child of such a holy man could not but be happier and better
than others. Some similar belief may be held in regard to intercourse
with a guest, though I can adduce no direct evidence for my
supposition. _Cf._ also the _jus primae noctis_ accorded to priests
(Westermarck, _History of Human Marriage_, p. 76 _sq._; _cf._ _ibid._
p. 80).]
That hospitality should be free of cost is implied in the very meaning
of the word. Wherever the custom of entertaining guests has been
preserved pure and genuine, remuneration is neither asked nor
expected; indeed, to offer payment would give offence, and to accept
it would be disgraceful.[126] Such a custom might no doubt result from
absence or scarcity of money, as it cannot be expected that the
wandering stranger shall carry with him heavy presents to all his
future hosts; and where the intercourse is mutual, the hospitable man
may hope one day to be paid back in his own coin. But it seems likely
that the custom of not receiving payment from a guest is largely due
to that same dread of strangers which underlies many other rules of
hospitality. The acceptance of gifts is frequently considered to be
connected with some danger. According to rules laid down in the sacred
books of India, he who is about to accept gifts, or he who has
accepted gifts, must repeatedly recite the four Vedic verses called
Taratsamandîs;[127] or all gifts are to be preceded by pouring out
{594} water into the extended palm of the recipient's right hand,[128]
evidently because the water is supposed to cleanse the gift from the
baneful energy with which it may be saturated. On the other hand,
"without a full knowledge of the rules prescribed by the sacred law
for the acceptance of presents, a wise man should not take anything,
even though he may pine with hunger. But an ignorant man who accepts
gold, land, a horse, a cow, food, a dress, sesamum-grains, or
clarified butter, is reduced to ashes like a piece of wood. . . .
Hence an ignorant man should be afraid of accepting any presents; for
by reason of a very small gift even a fool sinks into hell as a cow
into a morass."[129] Moreover, a gift, to be accepted by a Brâhmana,
ought to be given voluntarily, not to be asked for.[130] So, too,
Hebrew writers are anxious to inculcate the duty of giving alms with
an ungrudging eye, as also of not giving anything before
witnesses--the latter, perhaps, with a view to preventing the evil
influence which is likely to emanate from an envious spectator.[131]
An Atlas Berber, who had probably never before had anything to do with
a European, spat on the coin which I gave him for rendering me a
service, and my native friends told me that he did so for fear lest
the coin, owing to some sorcery on my part, should not only itself
return to me, but at the same time take with it all the money with
which it had been in contact in his bag. Of the Annamites it is said
that "for fear of bringing ill-luck into the place the people even
decline presents."[132]
[Footnote 126: Veniaminof, quoted by Dall, _op. cit._ p. 397 (Aleuts).
Bartram, in _Trans. American Ethn. Soc._ iii. pt. i. 42. Foreman,
_Philippine Islands_, p. 187 (Tagalogs). Hunter, _Annals of Rural
Bengal_, i. 216. Bogle, _Narrative of Mission to Tibet_, p. 109 _sq._
Vámbéry, _Das Türkenvolk_, p. 614 (Turks in Asia Minor). Robinson,
_Biblical Researches in Palestine_, ii. 18 _sq._; Burton, _Pilgrimage
to Al-Madinah & Meccah_, i. 36; Blunt, _op. cit._ ii. 212; Lane,
_Modern Egyptians_, p. 297 (Bedouins). Krauss, _Die Südslaven_, p. 648.]
[Footnote 127: _Baudhâyana_, iv. 2. 4.]
[Footnote 128: _Âpastamba_, ii. 4. 9. 8. Bühler, in _Sacred Books of
the East_, ii. 122, n. ^8]
[Footnote 129: _Laws of Manu_, iv. 187, 188, 191.]
[Footnote 130: _Ibid._ iv. 247 _sq._]
[Footnote 131: _Tobit_, iv. 7. Kohler, in _Jewish Encyclopedia_, i.
436. _Cf._ _St. Matthew_, vi. 1 _sqq._; Brandt, _Mandäische
Schriften_, pp. 28, 64: "If you give alms do not do it before
witnesses." The Mandæans were also forbidden to eat food prepared by a
stranger or to take a meal in his company (Brandt, _Mandäische
Religion_, p. 94).]
[Footnote 132: Ratzel, _op. cit._ iii. 418.]
The duty of hospitality is probably always limited by time, even
though, among some peoples, a guest is said to be entertained as long
as he pleases to stay.[133] According {595} to Teutonic custom, a
guest might tarry only up to the third day.[134] The Anglo-Saxon rule
was, "Two nights a guest, the third night one of the household," that
is, a slave.[135] A German proverb says, "Den ersten Tag ein Gast, den
zweiten eine Last, den dritten stinkt er fast."[136] So, also, the
Southern Slavs declare that "a guest and a fish smell on the third
day."[137] Burckhardt states that, among the Bedouins, if the stranger
intends to prolong his visit after a lapse of three days and four
hours from the time of his arrival, it is expected that he should
assist his host in domestic matters; should he decline this, "he may
remain, but will be censured by all the Arabs of the camp."[138] The
Moors say that "the hospitality of the Prophet lasts for three days";
the first night the guest is entertained most lavishly, for then, but
only then, he is "the guest of God." The Prophet laid down the
following rule: "Whoever believes in God and the day of resurrection,
must respect his guest; and the time of being kind to him is one day
and one night; and the period of entertaining him is three days; and
after that, if he does it longer, he benefits him more; but it is not
right for a guest to stay in the house of the host so long as to
incommode him."[139] According to Javanese custom, it is a point of
honour to supply a stranger with food and accommodation for a day and
a night at least.[140] Among the Kalmucks special honour is paid to a
stranger for one day only, whereas, if he remains longer, he is
treated without ceremonies.[141] Growing familiarity with the stranger
naturally tends to dispel the superstitious dread which he inspired at
first, and this, combined with the feeling that it is unfair of him to
live at his host's expense longer than necessity requires, seems to
account for the {596} rapid decline of his extraordinary privileges
and for the short duration of his title to hospitable treatment.
[Footnote 133: Veniaminof, quoted by Dall, _op. cit._ p. 397 (Aleuts).
Morgan, _League of the Iroquois_, p. 328. Bartram, in _Trans. American
Ethn. Soc._ iii. pt. i. 42 (Creeks and Cherokee Indians).]
[Footnote 134: Grimm, _Deutsche Rechtsalterthümer_, p. 400. Weinhold,
_Altnordisches Leben_, p. 447.]
[Footnote 135: Quoted in _Leges Edwardi Confessoris_, 23: "Tuua nicte
geste þe þirdde nicte agen hine." _Cf._ _Laws of Cnut_, ii. 28; _Laws
of Hlothhære and Eadric_, 15; _Leges Henrici I._ viii. 5.]
[Footnote 136: Weinhold, _op. cit._ p. 447.]
[Footnote 137: Krauss, _op. cit._ p. 658.]
[Footnote 138: Burckhardt, _Bedouins and Wahábys_, p. 101 _sq._]
[Footnote 139: Lane, _Arabian Society_, p. 142 _sq._]
[Footnote 140: Crawfurd, _op. cit._ i. 53.]
[Footnote 141: Bergmann, _op. cit._ ii. 285.]
Contrary to what is the case with other duties which men owe to their
fellow-creatures, in every progressive society we find hospitality on
the wane. In the later days of Greece and Rome it almost dwindled into
a survival.[142] In the Middle Ages hospitality was extensively
practised by high and low; it was enjoined by the tenets of
Chivalry,[143] and the poorer people, also, considered it disgraceful
to refuse to share their meals with a needy stranger.[144] However, in
the reign of Henry IV., Thomas Occlif complains of the decline of
hospitality in England; and in the middle of the Elizabethan age,
Archbishop Sandys says that "it is come to pass that hospitality
itself is waxen a stranger."[145] The reasons for this decline are not
difficult to find. Increasing intercourse between different
communities or different countries not only makes hospitality an
intolerable burden, but leads to the establishment of inns, and thus
hospitality becomes superfluous. It habituates the people to the sight
of strangers, and, in consequence, deprives the stranger of that
mystery which surrounds the lonely wanderer in an isolated district
whose inhabitants have little communication with the outside world.
And, finally, increase of intercourse gives rise to laws which make an
individual protector needless, by placing the stranger under the
protection of the State.
[Footnote 142: Becker-Goll, _Charikles_, ii. 3 _sqq._ _Idem_,
_Gallus_, iii. 28 _sqq._]
[Footnote 143: Sainte-Palaye, _Mémoires sur l'ancienne chevalerie_,
i. 310.]
[Footnote 144: Wright, _Domestic Manners and Sentiments in England
during the Middle Ages_, p. 329 _sqq._]
[Footnote 145: Sandys, _Sermons_, p. 401.]
CHAPTER XXV
THE SUBJECTION OF CHILDREN
FROM the modes of conduct which affect the life or bodily welfare of a
fellow-creature we shall pass to those relating to personal freedom.
In its absolute form the right of liberty may be granted to a perfect
being, but has no existence on earth. Ever since the conduct of men
became subject to moral censure, the right of doing what they pleased
was _eo ipso_ denied them; and in resisting wrong men have not only in
various ways interfered with the liberty of their fellow-creatures,
but have considered such interference to be their right or even their
duty. As to the question what conduct is wrong opinions have differed,
and so also as to the proper means of interference; but with neither
of these questions are we concerned at present. Nor shall I deal with
the subject of political liberty, nor with such restrictions as people
lay on their own freedom by contract. I shall only consider facts
bearing upon that state of subjection to which large classes of
individuals are doomed by custom or law, on account of their birth or
other circumstances beyond their own control--the subjection of
children, wives, and slaves to their parents, husbands, or masters.
Among the lower races every family has its head, who exercises more or
less authority over its members. In some instances where the maternal
system of descent prevails, a man's children are in the power of the
head of {598} their mother's family or of their maternal uncle;[1] but
this is by no means the rule even among peoples who reckon kinship
through females only. The facts which have been adduced as examples of
the so-called "mother-right" in most instances imply, chiefly, that
children are named after their mothers, not after their fathers, and
that property and rank descend exclusively in the female line;[2] and
this is certainly very different from a denial of paternal rights.[3]
Among those Australian tribes which have the system of maternal
descent the father is distinctly said to be the master of his
children.[4] In Melanesia, where the clan of the children is
determined by that of the mother, she is, to quote Dr. Codrington, "in
no way the head of the family. The house of the family is the
father's, the garden is his, the rule and government are his."[5] As
regards the Iroquois--among whom, at the death of a man, his property
is divided between his brothers, sisters, and mother's brothers,
whilst the property of a woman is transmitted to her children and
sisters[6]--we are told that the mother superintends the children, but
that the word of the father is law and must be obeyed by the whole
household.[7] Among the Mpongwe, who reckon kinship through the
mother, the father has by law unrestricted power over his children.[8]
And in Madagascar, where children generally follow the condition of
the mother,[9] the commands of a father or an ancestor are, among all
the tribes, "held as most sacredly binding upon his descendants."[10]
Whatever might have been the case in earlier times, it is a fact
beyond dispute that among the great bulk of existing savages children
are in the power of {599} their father, though he may to some extent
have to share his authority with the mother.
[Footnote 1: Westermarck, _History of Human Marriage_, p. 40 _sq._
Grosse, _Die Formen der Familie_, p. 183 _sq._ Post, _Afrikanische
Jurisprudenz_, i. 51 _sq._ Marsden, _History of Sumatra_, p. 262 _sq._]
[Footnote 2: Westermarck, _op. cit._ p. 97.]
[Footnote 3: See von Dargun, _Mutterrecht und Vaterrecht_, p. 3 _sqq._]
[Footnote 4: Curr, _The Australian Race_, i. 60, 61, 69.]
[Footnote 5: Codrington, _Melanesians_, p. 34.]
[Footnote 6: Westermarck, _op. cit._ p. 110.]
[Footnote 7: Seaver, _Narrative of the Life of Mrs. Mary Jemison_,
p. 165.]
[Footnote 8: Hübbe-Schleiden, _Ethiopien_, pp. 151, 153.]
[Footnote 9: Westermarck, _op. cit._ p. 103.]
[Footnote 10: Sibree, _The Great African Island_, p. 326.]
The extent of the father's power, however, is subject to great
variations. Among some savage peoples, as we have seen, he may destroy
his new-born child; among others infanticide is prohibited by custom.
Among some he may sell his children,[11] among others such a right is
expressly denied him.[12] Frequently he gives away his daughter in
marriage without consulting her wishes; but in other cases her own
consent is required, or she is allowed to choose her husband
herself.[13] Marriage by purchase does not imply that "a girl is sold
by her father in the same manner, and with the same authority, with
which he would dispose of a cow."[14] It seems that the paternal
authority is always in some degree limited by public opinion. Among
the Káfirs of the Hindu-Kush, for instance, though the head of the
house is described as an autocrat in his own family, the son, backed
by public opinion, may, and does, openly quarrel with and threaten his
father in cases when the father's actions have been of a particularly
gross character.[15]
[Footnote 11: Schadenberg, 'Negritos der Philippinen,' in _Zeitschr.
f. Ethnologie_, xii. 137. Post, _Afrikanische Jurisprudenz_, i. 51
_sq._ (Bogos, Fantis, Dahomans). Paulitschke, _Ethnographie
Nordost-Afrikas_, p. 189. Leuschner, in Steinmetz, _Rechtsverhältnisse_,
p. 16 _sq._ (Bakwiri). Among the Banaka and Bapuku, in the Cameroons,
the father may give his daughter in payment for a debt, but not his
son (_ibid._ p. 31).]
[Footnote 12: Kraft, in Steinmetz, _Rechtsverhältnisse_, p. 285
(Wapokomo). Rautanen, _ibid._ p. 329 (Ondonga).]
[Footnote 13: Westermarck, _op. cit._ p. 215 _sqq._]
[Footnote 14: Leslie, _Among the Zulus and Amatongas_, p. 194.
Westermarck, _op. cit._ ch. x.]
[Footnote 15: Robertson, _Káfirs of the Hindu-Kush_, p. 474.]
The essence of dependence lies in obedience and submission. To judge
from what is said about children's behaviour towards their parents,
the authority of the father must among some savages be practically
very slight.
The South American Charruas "ne défendent rien à leurs enfans, et
ceux-ci n'ont aucun respect pour leurs pères."[16] Among the Brazilian
Indians, according to von Martius, respect and obedience on the part
of children towards their parents are unknown.[17] {600} Among the
Tarahumares of Mexico "the children grow up entirely independent, and
if angry a boy may even strike his father."[18] We are told that among
the Aleuts parents "scarcely ever enjoy so much authority as to compel
their own children to shew them the least obedience, or to go a single
step in their service";[19] but this does not seem to hold good of all
of their tribes.[20] Of the Kamchadales Steller states that the
children insult their parents with all sorts of bad talk, stand in no
fear of them, obey them in nothing, and are consequently never
commanded to do anything, nor punished.[21]
[Footnote 16: Azara, _Voyages dans l'Amérique méridionale_, ii. 23.]
[Footnote 17: von Martius, in _Jour. Roy. Geo. Soc._ ii. 199. _Cf._
Southey, _History of Brazil_, iii. 387 (Guaycurus).]
[Footnote 18: Lumholtz, _Unknown Mexico_, p. 275.]
[Footnote 19: Georgi, _Russia_, iii. 212.]
[Footnote 20: Veniaminof, quoted by Petroff, 'Report on Alaska,' in
_Tenth Census of the United States_, pp. 155, 158.]
[Footnote 21: Steller, _Beschreibung von dem Lande Kamtschatka_, p.
353. _Cf._ Georgi, _op. cit._ iii. 158.]
Other savages, again, are by no means deficient in filial piety.[22]
[Footnote 22: Im Thurn, _Among the Indians of Guiana_, p. 213.
Schwaner, _Borneo_, i. 162 (Malays of the Barito River in Borneo).
Worcester, _Philippine Islands_, p. 481. Lewin, _Hill Tracts of
Chittagong_, p. 102 (Kukis). Vámbéry, _Türkenvolk_, p. 268
(Kara-Kirghiz). Macpherson, _Memorials of Service in India_, p. 67;
Hunter, _Annals of Rural Bengal_, iii. 72 (Kandhs). Granville and
Roth, in _Jour. Anthr. Inst._ xxviii. 109 (Jekris of the Warri
District of the Niger Coast Protectorate). Stuhlmann, _Mit Emin Pascha
ins Herz von Afrika_, p. 801 (Latuka).]
Among various Eskimo[23] and North American Indian tribes[24]
children are described as very obedient to their parents. Parry says
of the Eskimo of Winter Island and Igloolik that disobedience is
scarcely ever known, and that "a word or even a look from a parent is
enough."[25] The Potawatomis hold the violation of the advice and
directions of their parents one of the most atrocious crimes.[26] In
Tonga "filial duty is a most important duty and appears to be
universally felt."[27] One of the chief duties which the Ainos taught
their children was obedience to parents.[28] Among the Central Asiatic
Turks a son, whilst young, behaves as if he were his father's
slave.[29] Among the {601} Ossetes "the authority of the head of the
family, whether grandfather, father, stepfather, uncle, or elder
brother, is submitted to unconditionally; the young men never sit in
his presence, nor speak with a loud voice, nor contradict him."[30]
Among the Barea and Kunáma "a father and a mother are respected to the
utmost degree. A son never dares to contradict his parents nor oppose
their commands, however unjust they be. The mother particularly is
much beloved and tenderly cared for at her old age."[31] Among the
Mandingoes children "have a great veneration for their parents," and
"would feel extreme reluctance to disobey their father."[32] Of the
Bachapins, a Bechuana tribe, it is said that **"filial obedience is
strenuously enforced."[33] Among the Kafirs "any one who should fail
in respect for his father, or show any neglect of him, would draw on
himself the contempt of the whole horde; there have been even
instances in which want of filial duty has been punished with infamy
and banishment."[34]
[Footnote 23: Hall, _Arctic Researches_, p. 568. Boas, 'Central
Eskimo,' in _Ann. Rep. Bur. Ethn._ vi. 566. Murdoch, 'Ethnol. Results
of the Point Barrow Expedition,' _ibid._ ix. 417. Turner, 'Ethnology
of the Ungava District,' _ibid._ xi. 191 (Koksoagmyut).]
[Footnote 24: Turner, in _Ann. Rep. Bur. Ethn._ xi. 269 (Hudson Bay
Indians). Heriot, _Travels through the Canadas_, p. 530. Harmon,
_Journal of Voyages_, p. 347 (Indians on the east side of the Rocky
Mountains).]
[Footnote 25: Parry, _Journal of a Second Voyage for the Discovery of
a North-West Passage_, p. 530.]
[Footnote 26: Keating, _Expedition to the Source of St. Peter's
River_, i. 127.]
[Footnote 27: Mariner, _Natives of the Tonga Islands_, ii. 179.]
[Footnote 28: Batchelor, _Ainu and their Folk-Lore_, p. 254.]
[Footnote 29: Vámbéry, _op. cit._ p. 226.]
[Footnote 30: von Haxthausen, _Transcaucasia_, p. 414 _sq._]
[Footnote 31: Munzinger, _Ostafrikanische Studien_, p. 474.]
[Footnote 32: Caillié, _Travels through Central Africa_, i. 352 _sq._]
[Footnote 33: Burchell, _Travels in the Interior of Southern Africa_,
ii. 557.]
[Footnote 34: Lichtenstein, _Travels in Southern Africa_, i. 265.
Alberti, _De Kaffers aan de Zuidkust van Afrika_, p. 116 _sqq._
Shooter, _Kafirs of Natal_, p. 98.]
The period during which the paternal authority lasts varies. The
daughter is in her father's power till she marries, and as a rule no
longer;[35] but in some instances his authority over her continues
even after her marriage.[36] This, we have reason to believe, is
particularly the case when the husband, on marrying, does not take his
wife to his own home, but goes himself to live with her in the house
or community of her father.[37] A father's authority over his son
frequently comes to an end as the young man {602} grows up. Among the
Fuegians a son becomes independent of his parents at a very early age,
being allowed to leave their wigwam if he pleases.[38] Among the
Togiagamutes, an Eskimo tribe, "the youth, as soon as he is able to
build a kaiak and to support himself, no longer observes any family
ties but goes where his fancy takes him."[39] Of the Australian
natives it is said that sons become independent when they have gone
through the ceremonies by which they attain to the _status_ of
manhood;[40] among the Bangerang tribe of Victoria "after his twelfth
year or so the boy was very little subject to the father, though
parental affection always endured."[41] Among the Bedouins "the young
man, as soon as it is in his power, emancipates himself from the
father's authority, still paying him some deference as long as he
continues in his tent; but whenever he can become master of a tent
himself (to obtain which is his constant endeavour), he listens to no
advice, nor obeys any earthly command but that of his own will."[42]
That a son is emancipated from the father's power by getting
full-grown or by leaving the household is probably the rule among the
great majority of the lower races.[43] But here again instances to the
contrary are not wanting.[44] In Flores the sons even of rich families
are dressed like slaves at public feasts, so long as the father lives,
as also at his funeral. This, our authority adds, is apparently the
external sign of a strict _patria potestas_, which remains in force
till the funeral; until then the son is the father's slave.[45]
[Footnote 35: See, _e.g._, Leuschner, in Steinmetz, _Rechtsverhältnisse_,
p. 17 (Bakwiri); Fama Mademba, _ibid._ p. 65 (natives of the
Sansanding States); Nicole, _ibid._ p. 100 (Diakité); Lang, _ibid._ p.
224 (Washambala); Kraft, _ibid._ p. 286 (Wapokomo); Marx, _ibid._ p.
349 (Amahlubi); Sorge, _ibid._ p. 404 (Nissan Islanders of the
Bismarck Archipelago).]
[Footnote 36: See, _e.g._, Beverley, in Steinmetz, _Rechtsverhältnisse_,
p. 206. What is said, _ibid._ p. 31, concerning the Banaka and Bapuku
does not seem to agree with the statement p. 30, that the husband is
the head of his household and the possessor of his wives.]
[Footnote 37: _Cf._ Mazzarella, _La condizione giuridica del marito
nella famiglia matriarcale_, _passim_; _infra_, on the Subjection of
Wives. The point in question, like the whole subject of the father's
authority among the lower races, requires much further investigation.]
[Footnote 38: Bove, _Patagonia, Terra del Fuoco_, p. 133.]
[Footnote 39: Petroff, _loc. cit._ p. 135.]
[Footnote 40: Curr, _The Australian Race_, i. 61.]
[Footnote 41: _Idem_, _Recollections of Squatting in Victoria_, p. 248.]
[Footnote 42: Burckhardt, _Notes on the Bedouins and Wahábys_, p. 201.]
[Footnote 43: For other instances, see Munzinger, _Die Sitten und das
Recht der Bogos_, p. 36; Post, _Afrikanische Jurisprudenz_, i. 51
(Somals); Leuschner, in Steinmetz, _Rechtsverhältnisse_, p. 17
(Bakwiri); Nicole, _ibid._ p. 100 (Diakité); Beverley, _ibid._ p. 206
(Wagogo); Marx, _ibid._ p. 349 (Amahlubi); Sorge, _ibid._ p. 404
(Nissan Islanders).]
[Footnote 44: Sarbah, _Fanti Customary Laws_, p. 5. Stuhlmann, _op.
cit._ p. 801 (Latuka). Steinmetz, _Rechtsverhältnisse_, p. 31 (Banaka
and Bapuku). Fama Mademba, _ibid._ p. 65 (natives of the Sansanding
States). Kraft, _ibid._ p. 286 (Wapokomo), Abercromby, _Pre- and
Proto-historic Finns_, i. 181 (Mordvins).]
[Footnote 45: von Martens, quoted by Nieboer, _Slavery as an
Industrial System_, p. 26, n. 2.]
{603} However, the expiration of the paternal power, in the proper
sense of the term, does not necessarily imply the loss of all
authority over the children. The father, at all events, retains the
rights incident to his superior age, and among many uncivilised
peoples these are great. Old age commands respect and gives
authority.
Among the Fuegians "in each family the word of an old man is
accepted as law by the young people; they never dispute his
authority."[46] The Patagonians "pay respect to old people, taking
great care of them."[47] The Caribs "portent un grand respect aus
vieillards."[48] The same is the case among many of the North American
Indians.[49] Among the Naudowessies, whilst the advice of a father
will seldom meet with any extraordinary attention from the young
Indians, "they will tremble before a grandfather, and submit to his
injunctions with the utmost alacrity. The words of the ancient part of
their community are esteemed by the young as oracles."[50] Among the
Eskimo about Behring Strait the old men are listened to with
respect;[51] and among the Point Barrow Eskimo "respect for the
opinions of elders is so great that the people may be said to be
practically under what is called 'simple elder rule.'"[52] Among the
Veddahs of Ceylon the oldest man "is regarded with a sort of
patriarchal respect when accident or occasion has brought together any
others than the members of one family."[53] Among the Jakuts an old
man is implicitly obeyed as a father of a family; "a young man ever
gives his opinion with the greatest respect and caution; and even when
asked, he submits his ideas to the judgment of the old."[54] Regard
for the aged is found among the Ainos,[55] Kurilians,[56] Mongols,[57]
Ossetes,[58] {604} Kukis,[59] Nicobarese,[60] Negritos of the
Philippine Islands,[61] Papuans of New Guinea[62] New Caledonians,[63]
Caroline Islanders,[64] Tonga Islanders,[65] and, in a remarkable
degree, among the Australian aborigines.[66] "Among the Kurnai," says
Mr. Howitt, "age meets with great reverence. . . . It may be stated as
a general rule that authority attaches to age. It follows from this
that there is no hereditary authority and no hereditary chieftain. The
authority which is inherent in age attaches not alone to the man, but
also to the woman." And he justly adds that this principle regulating
authority seems to be, not peculiar to the Kurnai, but general to the
whole Australian race.[67]
[Footnote 46: King and Fitzroy, _Voyages of the "Adventure" and
"Beagle,"_ ii. 179.]
[Footnote 47: _Ibid._ ii. 172.]
[Footnote 48: de Poircy-de Rochefort, _Histoire des Isles Antilles_,
p. 461.]
[Footnote 49: Buchanan, _North American Indians_, p. 7. Prescott, in
Schoolcraft, _Indian Tribes of the United States_, ii. 196.]
[Footnote 50: Carver, _Travels through the Interior Parts of North
America_, p. 243.]
[Footnote 51: Nelson, 'Eskimo about Bering Strait,' in _Ann. Rep. Bur.
Ethn._ xviii. 304.]
[Footnote 52: Murdoch, in _Ann. Rep. Bur. Ethn._ ix. 427.]
[Footnote 53: Hartshorne, 'Weddas,' in _Indian Antiquary_, viii. 320.
_Cf._ Deschamps, _Carnet d'un voyageur_, p. 395.]
[Footnote 54: Sauer, _Billings' Expedition to the Northern Parts of
Russia_, p. 124.]
[Footnote 55: Batchelor, _Ainu and their Folk-Lore_, p. 254. von
Siebold, _Ethnol. Studien über die Aino auf der Insel Yesso_, p. 25.]
[Footnote 56: Krasheninnikoff, _History of Kamschatka_, p. 236.]
[Footnote 57: Prejevalsky, _Mongolia_, i. 71.]
[Footnote 58: von Haxthausen, _Transcaucasia_, p. 414. Strabo (xi. 4.
8) reports the same of the Albanians of the Eastern Caucasus.]
[Footnote 59: Lewin, _Hill Tracts of Chittagong_, p. 102.]
[Footnote 60: Kloss, _In the Andamans and Nicobars_, p. 243.]
[Footnote 61: Schadenberg, in _Zeitschr. f. Ethnol._ xii. 135. Earl,
_Papuans_, p. 133. Foreman, _Philippine Islands_, p. 209.]
[Footnote 62: Earl, _op. cit._ p. 81.]
[Footnote 63: Atkinson, in _Folk-Lore_, xiv. 248.]
[Footnote 64: Christian, _Caroline Islands_, p. 72. Angas,
_Polynesia_, p. 382.]
[Footnote 65: Mariner, _op. cit._ ii. 155.]
[Footnote 66: Roth, _North-West-Central Queensland Aborigines_, p.
141. Fraser, _Aborigines of New South Wales_, p. 5. Schuermann,
'Aboriginal Tribes of Port Lincoln,' in Woods, _Native Tribes of South
Australia_, p. 226. Hale _U.S. Exploring Expedition. Vol. VI.
Ethnography and Philology_, p. 113. Mitchell, _Expeditions into the
Interior of Eastern Australia_, ii. 346. Brough Smyth, _Aborigines of
Victoria_, i. 137 _sq._ See also Steinmetz, _Ethnol. Studien zur
Entwicklungsgeschichte der Strafe_, ii. 26 _sqq._]
[Footnote 67: Fison and Howitt, _Kamilaroi and Kurnai_, p. 211 _sq._]
Turning to African peoples: among the Danakil the aged of both
sexes, but especially the males, are held in great veneration, and the
old men are consulted on every occasion of any importance.[68] "The
real religion of the Barea and Kunáma," says Munzinger, "consists in
an extraordinary reverence for old age. Among these peoples only the
old, the weak, or the blind command respect."[69] The E[(w]e-speaking
peoples on the Slave Coast have a proverb, "Respect the elders, they
are our fathers."[70] Winterbottom doubts whether the ancient
Lacedæmonians paid greater regard to old age than do the natives of
Sierra Leone.[71] Mr. Leighton Wilson says of the Mpongwe:--"There is
no part of the world where respect and veneration for age is carried
to a greater length than among this people. . . . All the younger
members of society are early trained to show the utmost deference to
age. They must never come into the presence of aged persons or pass by
their dwellings without taking off their hats and assuming a crouching
gait. When seated in their presence {605} it must always be at a
'respectful distance'--a distance proportioned to the difference in
their ages and position in society. If they come near enough to hand
an aged man a lighted pipe or a glass of water, the bearer must always
fall upon one knee. Aged persons must always be addressed as 'father'
(_rera_) or 'mother' (_ngwe_). Any disrespectful deportment or
reproachful language toward such persons is regarded as a misdemeanour
of no ordinary aggravation. A youthful person carefully avoids
communicating any disagreeable intelligence to such persons, and
almost always addresses them in terms of flattery and adulation."[72]
Among the For tribe of Central Africa "great consideration is shown
towards women when they are old, as well as towards aged men."[73]
Regard for old age is, in fact, a very general trait of the African
character.[74]
[Footnote 68: Scaramucci and Giglioli, 'Notizie sui _Danakil_,' in
_Archivio per l'antropologia e la etnologia_, xiv. 36.]
[Footnote 69: Munzinger, _Ostafrikanische Studien_, p. 474.]
[Footnote 70: Ellis, _E[(w]e-speaking Peoples_, p. 268.]
[Footnote 71: Winterbottom, _Native Africans in the Neighbourhood of
Sierra Leone_, i. 211.]
[Footnote 72: Wilson, _Western Africa_, p. 392 _sq._]
[Footnote 73: Felkin, 'Notes on the For Tribe of Central Africa,' in
_Proceed. Roy. Soc. Edinburgh_, xiii. 224 _sq._]
[Footnote 74: Monrad, _Bidrag til en Skildring af Guinea-Kysten_, p.
37 (Negroes of Accra). Granville and Roth, in _Jour. Anthr. Inst._
xxviii. 109 (Jekris). Kingsley, _Travels in West Africa_, p. 460
(Calabar tribes). Caillié, _op. cit._ i. 352 (Mandingoes). Stuhlmann,
_op. cit._ pp. 789, 801 (Latuka). Casati, _Ten Years in Equatoria_, i.
186. Chanler, _Through Jungle and Desert_, p. 246 (Embe). New, _Life,
Wanderings, and Labours in Eastern Africa_, p. 101 (Wanika). Johnston,
_Kilima-njaro Expedition_, p. 419 (Masai). Arnot, _Garenganze_, p. 78,
note. Lichtenstein, _op. cit._ i. 265; Alberti, _op. cit._ p. 118;
Shooter, _op. cit._ p. 98 (Kafirs). Schinz, _Deutsch-Südwest-Afrika_,
p. 82 (Hottentots).]
Not only old age, but superiority of age, gives a certain amount of
power.
The Australian natives have a well-regulated order of precedence
and authority. "When the individual reaches the full development of
puberty, he or she undergoes a ceremony which entitles him or her on
its successful completion to a certain social rank or _status_ in the
community. As life progresses, other and higher ranks are
progressively attainable for each sex, until the highest and most
honourable grade, that enjoyed by an old man, or an old woman, is
reached."[75] All North American Indians "hold that superior age gives
authority; and every person is taught from childhood to obey his
superiors and to rule over his inferiors. The superiors are those of
greater age; the inferiors, those who are younger."[76] The same
influence of age makes itself felt in the relations between elder
{606} and younger brothers and sisters.[77] Navaho myths indicate that
"even among twins, the younger must defer to the elder."[78] The
eldest brother comes next to the father in authority, and, in case of
his death, succeeds him as the head of the family. The Aleuts
described by Father Veniaminof maintained that "if one had no father
he should respect his oldest brother and serve him as he would a
father."[79] Among the Kalmucks "the elder brother is the despot of
the younger ones, and is even allowed to punish them."[80] In
Madagascar so great respect is paid to seniority "that if two slaves
who are brothers are going a journey, any burden must be carried by
the younger one, so far at least as his strength will allow."[81] In
Tonga custom decrees "that all persons shall be in the service of
their older and superior relations, if those relations think proper to
employ them"; and every chief shows the greatest regard for his eldest
sister.[82] Among the Hottentots "the highest oath a man could take
and still takes, was to swear by his eldest sister, and if he should
abuse this name, the sister will walk into his flock and take his
finest cows and sheep, and no law could prevent her from doing
so."[83] Among the Point Barrow Eskimo, again, "seniority gives
precedence when there are several women in one hut, and the sway of
the elder in the direction of everything connected with her duties
seems never disputed."[84]
[Footnote 75: Roth, _op. cit._ p. 169. _Cf._ _ibid._ p. 65 _sq._;
Eyre, _Journals of Expeditions of Discovery into Central Australia_,
ii. 315.]
[Footnote 76: Powell, 'Sociology,' in _American Anthropologist_, N. S.
i. 700. _Cf._ _Idem_, in _Ann. Rep. Bur. Ethn._ iii. p. lviii.]
[Footnote 77: Nachtigal, _Sahara und Sudan_, i. 450 (Tedâ). Chavanne,
_Die Sahara_, p. 396 (Arabs of the Sahara). Paulitschke, _op. cit._ p.
192 (Gallas). von Haxthausen, _Transcaucasia_, p. 415 (Ossetes). Bach,
'Die Wotjaken,' in _Acta Societatis Scientiarum Fennicæ_, xii. 489
(Votyaks). Sumner, in _Jour. Anthr. Inst._ xxxi. 75 (Jakuts).
Batchelor, _Ainu and their Folk-Lore_, p. 254.]
[Footnote 78: Matthews, 'Study of Ethics among the Lower Races,' in
_Journal of American Folk-Lore_, xii. 9.]
[Footnote 79: Veniaminof, quoted by Petroff, _loc. cit._ p. 155.]
[Footnote 80: Bergmann, _Nomadische Streifereien unter den Kalmüken_,
ii. 305.]
[Footnote 81: Sibree, _op. cit._ p. 182.]
[Footnote 82: Mariner, _op. cit._ i. 226; ii. 155.]
[Footnote 83: Hahn, _The Supreme Being of the Khoi-Khoi_, p. 21.]
[Footnote 84: Simpson, quoted by Murdoch, in _Ann. Rep. Bur. Ethn._
ix. 427.]
It must be added, however, that the reverence for old age may cease
when the grey-head gets so old as to be an incumbrance to those around
him;[85] and imbecility may put an end to the father's authority over
his family.[86] We have previously noticed that parents worn out with
age {607} and disease are among some peoples killed or abandoned by
their own children.[87]
[Footnote 85: Curr, _Squatting in Victoria_, pp. 254. 245, 265 _sqq._;
Eyre, _op. cit._ ii. 316 (Australian aborigines). Sumner, in _Jour.
Anthr. Inst._ xxxi. 76 (Jakuts). Nansen, _Eskimo Life_, p. 177 _sq._
(Greenlanders). _Supra_, p. 534.]
[Footnote 86: Steinmetz, _Rechtsverhältnisse_, p. 31 (Banaka and
Bapuku).]
[Footnote 87: _Supra_, p. 386 _sq._]
When passing from the savage and barbarous races of men to those next
above them in civilisation, we find paternal, or parental, authority
and filial reverence at their height. In ancient Mexico "necessitous
parents were allowed to dispose of any one of their children, in order
to relieve their poverty," whereas a master could not sell a
well-behaved slave without his consent.[88] A youth was seldom
permitted to choose a wife for himself, but was expected to abide by
the selection of his parents;[89] and "children were bred to stand so
much in awe of their parents that even when grown up and married they
hardly durst speak before them."[90] So, too, in Nicaragua a father
might sell his children as slaves in cases of great necessity,[91] and
matches were in the larger part of the country arranged by the
parents.[92] In ancient Peru disobedient children were publicly
chastised by their own parents;[93] and Inca Pachacutec confirmed the
law that sons should obey and serve their fathers until they reached
the age of twenty-five, and that none should marry without the consent
of the parents and of the parents of the girl.[94]
[Footnote 88: Clavigero, _History of Mexico_, i. 360.]
[Footnote 89: Westermarck, _op. cit._ p. 226.]
[Footnote 90: Clavigero, _op. cit._ i. 331.]
[Footnote 91: Squier, _Nicaragua_, p. 345.]
[Footnote 92: Bancroft, _Native Races of the Pacific States_, ii. 667.]
[Footnote 93: Herrera, _General History of the West Indies_, iv. 339.]
[Footnote 94: Garcilasso de la Vega, _First Part of the Royal
Commentaries of the Yncas_, ii. 207.]
In China a house-father reigns almost supreme in his family, and,
according to ancient Chinese ideas, not even marriage withdraws the
son from his power.[95] The law, it is true, prohibits him from
killing[96] or selling[97] his children; but it is only in supreme
cases that the State interferes between the head of a household and
his family belongings, and the sale of children is practically
allowed.[98] No person, of whatever age, can act for himself in
matrimonial {608} matters during the lifetime or in the neighbourhood
of his parents or near senior kinsfolk.[99] The law provides that
disobedience to the instructions and commands of parents or paternal
grandparents shall be punished with one hundred blows,[100] and that a
still greater punishment shall be inflicted on a son accusing his
father or mother and on a grandson accusing his paternal grandparent,
even though the accusation prove true.[101] Indeed, from earliest
youth the Chinese lad is imbued with such respect for his parents that
it becomes at last a religious sentiment, and forms, as he gets older,
the basis of his only creed--the worship of ancestors.[102]
Confucianism itself has been briefly described as "an expansion of the
root idea of filial piety."[103] The Master said:--"filial piety is
the root of all virtue, and the stem out of which grows all moral
teaching. . . . Filial piety is the constant method of Heaven, the
righteousness of Earth, and the practical duty of Man. . . . Of all
the actions of man there is none greater than filial piety. In filial
piety there is nothing greater than the reverential awe of one's
father. In the reverential awe shown to one's father there is nothing
greater than the making him the correlate of Heaven."[104] But the
idea that filial piety is the fundamental duty of man was not
originated by Confucius, it had obtained a firm hold of the national
mind long before his time.[105] It also prevails in Corea[106] and
Japan,[107] where the authority of a house-father is, or, in the case
of Japan, until lately has been,[108] as great as in China. "The
Japanese maiden, as pure as the purest Christian virgin, will at the
command of her father enter the brothel to-morrow, and prostitute
herself for life. Not a murmur escapes her lips {609} as she thus
filially obeys."[109] In Corea, whilst the first thing inculcated in
a child's mind is respect for his father, little respect is felt for
the mother; the child soon learns that a mother's authority is next
to nothing.[110]
[Footnote 95: de Groot, _Religious System of China_ (vol. ii. book)
i. 507.]
[Footnote 96: _Supra_, p. 393.]
[Footnote 97: _Ta Tsing Leu Lee_, sec. cclxxv. p. 292.]
[Footnote 98: Douglas, _Society in China_, p. 78. Staunton, in his
translation of _Ta Tsing Leu Lee_, p. 292 n. * Doolittle, _Social Life
of the Chinese_, ii. 209.]
[Footnote 99: Medhurst, 'Marriage, Affinity, and Inheritance in
China,' in _Trans. Roy. Asiatic Soc. China Branch_, iv. 11.]
[Footnote 100: _Ta Tsing Leu Lee_, sec. cccxxxviii. p. 374.]
[Footnote 101: _Ibid._ sec. cccxxxvii. p. 371 _sq._]
[Footnote 102: Wells Williams, _Middle Kingdom_, i. 646.]
[Footnote 103: Griffis, _Corea_, p. 328 _sq._]
[Footnote 104: _Hsiáo King_, 1, 7, 9 (_Sacred Books of the East_, iii.
446, 473, 476).]
[Footnote 105: Douglas, _Confucianism and Taouism_, p. 118.]
[Footnote 106: Griffis, _Corea_, pp. 236, 259.]
[Footnote 107: Rein, _Japan_, p. 427. Griffis, _Religions of Japan_,
p. 122 _sq._]
[Footnote 108: Griffis, _Religions of Japan_, p. 148.]
[Footnote 109: _Idem_, _Mikado's Empire_, p. 555. _Cf._ Rein, _Japan_,
p. 427.]
[Footnote 110: Griffis, _Corea_, p. 259.]
It is the general opinion of Assyriologists that in ancient Chaldæa,
at least in the early period of its history, the father had absolute
authority over all the members of his household.[111] Anything
undertaken by them without his consent was held invalid in the eyes of
the law,[112] and a disobedient son might be sold as a slave.[113]
According to the Laws of [Hv]ammurabi, a man might give his son or
daughter as a hostage for debts;[114] but he could not disown his
children at discretion. It is said that if he wishes to cut off his
son he must declare his intention to the judge, whereupon "the judge
shall enquire into his reasons, and if the son has not committed a
heavy crime which cuts off from sonship, the father shall not cut off
his son from sonship."[115] Professor Hommel believes that the
mother's authority over her children was as great as the
father's,[116] whereas Meissner concludes that it was less, from the
fact that her children are not seldom found to be at law with her in
matters of succession.[117] Among the Hebrews a father might sell his
child to relieve his own distress, or offer it to a creditor as a
pledge.[118] He had not only unlimited power to marry his daughters,
but even to sell them as maids into concubinage, though not to a
foreign people.[119] He also chose wives for his sons;[120] and there
is no indication that the subjection of sons ceased after a certain
age.[121] How important were the duties of the child to the {610}
parents is shown in the primitive typical relation of Isaac to
Abraham, and may be at once learned from the placing of the law on the
subject among the Ten Commandments, and from its position there in the
immediate proximity to the commands relating to the duties of man
towards God.[122] Philo Judæus observes that it occupies this position
because parents are something between divine and human nature,
partaking of both--of human nature inasmuch as it is plain that they
have been born and that they will die, and of divine nature because
they have engendered other beings, and have brought what did not exist
into existence. What God is to the world, that parents are to their
children; they are "the visible gods."[123] In Muhammedan countries
parents have practically great authority over their children. Should a
father exceed the bounds of moderation or justice in chastising his
son, the idea of prosecuting him would hardly occur to anyone, the
injured party being prevented by public opinion, if not by habit and
feeling, from appealing against his own father.[124] Disobedience to
parents is considered by Moslems as one of the greatest of sins, and
is put, in point of heinousness, on a par with idolatry, murder, and
desertion in an expedition against infidels. "An undutiful child,"
says Mr. Lane, "is very seldom heard of among the Egyptians or the
Arabs in general. . . . Sons scarcely sit or eat or smoke in the
presence of the father, unless bidden to do so."[125] In Morocco it is
curious to see big, grown-up sons sneak away as soon as they hear
their father's steps, or to notice their absolute reticence in his
presence. Children's deference for their mothers is less formal, but
almost equally great.[126]
[Footnote 111: Oppert, in _Göttingische gelehrte Anzeigen_, 1879, p.
1604 _sqq._ Hommel, _Die semitischen Völker und Sprachen_, i. 416.
Meissner, _Beiträge zum altbabylonischen Privatrecht_, p. 14 _sq._]
[Footnote 112: Maspero, _Dawn of Civilization_, p. 134.]
[Footnote 113: Hommel, _op. cit._ i. 416. Meissner, _op. cit._ p. 1.]
[Footnote 114: _Laws of [Hv]ammurabi_, 117.]
[Footnote 115: _Ibid._ 168.]
[Footnote 116: Hommel, _op. cit._ i. 416.]
[Footnote 117: Meissner, _op. cit._ p. 15.]
[Footnote 118: Ewald, _Antiquities of Israel_, p. 190. Wellhausen,
_Prolegomena to the History of Israel_, p. 465.]
[Footnote 119: _Exodus_, xxi. 7 _sq._]
[Footnote 120: _Genesis_, xxiv. 4; xxviii. 1 _sq._ _Exodus_, xxxiv.
16. _Deuteronomy_, vii, 3.]
[Footnote 121: _Cf._ Michaelis, _Commentaries on the Laws of Moses_,
i. 444.]
[Footnote 122: _Cf._ Ewald, _op. cit._ p. 188; Gans, _Das Erbrecht in
weltgeschichtlicher Entwickelung_, i. 134.]
[Footnote 123: Philo Judæus, _Opera_, i. 759 _sqq._]
[Footnote 124: Urquhart, _Spirit of the East_, ii. 440 _sq._]
[Footnote 125: Lane, _Manners and Customs of the Modern Egyptians_, p.
70. _Cf._ Pool, _Studies in Mohammedanism_, p. 171.]
[Footnote 126: _Cf._ Urquhart, _op. cit._ ii. 265 _sq._]
Among the ancient Romans, in relation to the house-father, "all in the
household were destitute of legal rights--the wife and the child no
less than the bullock or the {611} slave."[127] The father not only
had judicial authority over his children--implying the right of
inflicting capital punishment on them[128]--but he could sell them at
discretion.[129] Even the grown-up son and his children were subject
to the house-father's authority,[130] and in marriage without
_conventio in manum_ a daughter remained in the power of her father or
tutor even after marriage.[131] Filial piety, including reverence not
only for the father but for the mother also, was regarded as a most
sacred duty.[132] To the ancient Roman the parents were hardly less
sacred beings than the gods.[133]
[Footnote 127: Mommsen, _History of Rome_, i. 74.]
[Footnote 128: _Supra_, p. 393.]
[Footnote 129: Dionysius of Halicarnassus, _Antiquitates Romanæ_,
ii. 27.]
[Footnote 130: _Institutiones_, i. 9. 3.]
[Footnote 131: Westermarck, _op. cit._ p. 230.]
[Footnote 132: Leist, _Græco-italische Rechtsgeschichte_, p. 11 _sqq._
_Idem_, _Alt-arisches Jus Gentium_, p. 185.]
[Footnote 133: Valerius Maximus, i. 1. 13: "Pari vindicta parentum ac
deorum violatio expianda est." Servius, _In Virgilii Georgicon_, ii.
473: "Sacra deorum sancta apud illos sunt, sancti etiam
parentes."]
It has been suggested by Sir Henry Maine and others that the _patria
potestas_ of the Romans was a survival of the paternal authority which
existed among the primitive Aryans.[134] But no clear evidence of the
general prevalence of such unlimited authority among other so-called
Aryan peoples has been adduced. The ancient jurist observed, "The
power which we have over our children is peculiar to Roman citizens;
for there are no other nations possessing the same power over their
children as we have over ours."[135] That among the Greeks and Teutons
the father had the right to expose his children in their infancy, to
sell them, in case of urgency, as long as they remained in his
power,[136] and to give away his daughters in marriage,[137] does not
imply the possession of a sovereignty like that which the Roman
house-father exercised over his descendants of all ages. In
Greece[138] and among all the Teutonic {612} nations[139] the father's
authority over his sons came to an end when the son grew up and left
his home. But here again we must distinguish between the legal rights
of parents and the duties of children. There are numerous passages in
the Greek writings which put filial piety on a par with the duties
towards the gods.[140]
[Footnote 134: Maine, _Ancient Law_, p. 138. Fustel de Coulanges, _La
cité antique_, p. 96 _sqq._ Hearn, _Aryan Household_, p. 92.]
[Footnote 135: _Institutiones_, i. 9. 2.]
[Footnote 136: Leist, _Græco-italische Rechtsgeschichte_, p. 60 _sq._
Grimm, _Deutsche Rechtsalterthümer_, p. 461 _sq._ Brunner, _Deutsche
Rechtsgeschichte_, i. 76. In France the parents' right of selling
their children gradually disappeared under the kings of the third race
(de Laurière, in Loysel, _Institutes coutumières_, i. 82).]
[Footnote 137: Westermarck, _op. cit._ p. 232 _sqq._]
[Footnote 138: Leist, _Græco-italische Rechtsgeschichte_, p. 62 _sq._
Cauvet, 'De l'organisation de la famille à Athènes,' in _Revue de
législation_, xxiv. 138.]
[Footnote 139: Grimm, _Deutsche Rechtsalterthümer_, p. 462. Brunner,
_Deutsche Rechtsgeschichte_, i. 75 _sq._]
[Footnote 140: Schmidt, _Ethik der alten Griechen_, ii. 141 _sq._]
Nor is there any evidence that the _patria potestas_ of the Roman type
ever prevailed in full in India, great though the father's or parent's
authority has been, and still is, among the Hindus.[141] Among the
Vedic people the father seems to have been the head of the family only
as long as he was able to be its protector and maintainer,[142]
decrepit parents being even allowed to die of starvation.[143]
According to some sacred books from a later age, the father and the
mother have power to give, to sell, and to abandon their son, because
"man formed of uterine blood and virile seed proceeds from his mother
and his father as an effect from its cause"; however, an only son may
not be given or received in adoption, nor is a woman allowed to give
or receive a son except with her husband's permission.[144] In other
books it is said that "the gift or acceptance of a child and the right
to sell or buy a child are not recognised,"[145] and that he who casts
off his son--unless the son be guilty of a crime causing loss of
caste--shall be fined by the king six hundred _panas_.[146] But
whatever be the legal rights of a parent, filial piety is a most
stringent duty in the child.[147] A man has three Atigurus, or
specially venerable superiors: his father, mother, and spiritual
teacher. To them he must always pay obedience. He must do what is
agreeable and serviceable to them. He must never do anything without
their leave.[148] "By honouring these three all that ought to be done
by man is accomplished; {613} that is clearly the highest duty, every
other act is a subordinate duty."[149] Similar feelings prevail among
the modern Hindus.[150] Sir W. H. Sleeman observes, "There is no part
of the world, I believe, where parents are so much reverenced by their
sons as they are in India in all classes of society." The duty of
daughters is from the day of their marriage transferred entirely to
their husbands and their husbands' parents, but between the son and
his parents the reciprocity of rights and duties which have bound
together the parent and child from infancy follows them to the grave.
The sons are often actually tyrannised over by their mothers.[151]
[Footnote 141: Westermarck, _op. cit._ p. 231 _sq._]
[Footnote 142: _Rig-Veda_, i. 70. 5.]
[Footnote 143: Zimmer, _Altindisches Leben_, p. 328.]
[Footnote 144: _Vasishtha_, xv. 1 _sqq._ _Baudhâyana Parisishta_, vii.
5. 2 _sqq._]
[Footnote 145: _Âpastamba_, ii. 6. 13. 11.]
[Footnote 146: _Laws of Manu_, viii. 389. _Cf._ _ibid._ xi. 60.]
[Footnote 147: _Âpastamba_, i. 4. 14. 6. _Laws of Manu_, ii. 225
_sqq._; iv. 162; &c.]
[Footnote 148: _Institutes of Vishnu_, ch. 31.]
[Footnote 149: _Laws of Manu_, ii. 237.]
[Footnote 150: Nelson, _View of the Hind[=u] Law_, p. 56 _sq._ Ghani,
'Social Life and Morality in India,' in _International Journal of
Ethics_, vii. 312.]
[Footnote 151: Sleeman, _Rambles and Recollections of an Indian
Official_, i. 330 _sqq._]
According to ancient Russian laws, fathers had great power over their
children;[152] but it is not probable that a son could be sold as a
slave.[153] Baron von Haxthausen, who wrote before the Emancipation in
1861, says that "the patriarchal government, feelings, and
organisation are in full activity in the life, manners, and customs of
the Great Russians. The same unlimited authority which the father
exercises over all his children is possessed by the mother over her
daughters."[154] It was a common custom for a father to marry his
young sons to full-grown women; and in Poland also, according to
Nestor, a father used to select a bride for his son.[155] According to
Professor Bogi[vs]i['c], the power of the father is not so great among
the Southern Slavs as among the Russians;[156] but a son is not
permitted to make a proposal of marriage to a girl against the will of
his parents, whilst a daughter, of course, enjoys still less freedom
of disposing of her own hand.[157] According to a Slavonian maxim, "a
father is like an earthly god to his son."[158]
[Footnote 152: Accurse, quoted by de Laurière, in Loysel, _op. cit._
i. 82.]
[Footnote 153: Macieiowski, _Slavische Rechtsgeschichte_, iv. 404.]
[Footnote 154: von Haxthausen, _Russian Empire_, ii. 229 _sq._]
[Footnote 155: Westermarck, _op. cit._ p. 234. Macieiowski, _op. cit._
ii. 189.]
[Footnote 156: Maine, _Early Law and Custom_, p. 244, note.]
[Footnote 157: Krauss, _Sitte und Brauch der Südslaven_, pp. 314, 320.]
[Footnote 158: Maine, _Early Law and Custom_, p. 243.]
{614} Among this group of peoples, also, we meet with reverence for
the elder brother, for persons of a superior age generally, and,
especially, for the aged.
Obedience on the part of the younger to the elder brother is
strongly inculcated by Confucianism and Taouism.[159] In ancient China
the eldest son of the principal wife held so high a position that even
his own father had to mourn for him at his death in the selfsame
degree in which the son was bound to mourn for his father;[160] and in
some provinces of Japan the elder brother or sister did not even go to
the funeral of the younger.[161] In Babylonia the elder brother
occupied a privileged position in the family in relation to the
younger.[162] In one of the Mandæan writings it is said, "Honour your
father and your mother and your elder brother as your father."[163]
According to the sacred books of the Hindus, "the feet of elder
brothers and sisters must be embraced, according to the order of their
seniority";[164] "towards a sister of one's father and of one's
mother, and towards one's own elder sister, one must behave as towards
one's mother," though the mother is more venerable than they.[165]
[Footnote 159: Douglas, _Confucianism and Taouism_, pp. 123, 124, 259.
Griffis, _Religions of Japan_, p. 125 _sq._]
[Footnote 160: de Groot, _op. cit._ (vol. ii. book) i. 509.]
[Footnote 161: Griffis, _Religions of Japan_, p. 127.]
[Footnote 162: Hommel, _op. cit._ i. 417 _sq._]
[Footnote 163: Brandt, _Mandäische Schriften_, p. 64.]
[Footnote 164: _Âpastamba_, i. 4. 14. 9. _Cf._ _ibid._ i. 4. 14. 14;
_Laws of Manu_, ii. 225.]
[Footnote 165: _Laws of Manu_, ii. 133.]
Again, in ancient Mexico respect was paid not only by children to
their parents but by the young to the old.[166] Among the Yucatans
"the young reverenced much the aged."[167] In China persons of the
lowest class who have attained to an unusual age have not infrequently
been distinguished by the Emperor,[168] and even criminals with grey
hairs are treated with regard.[169] "Respect for elders," says
Mencius, "is the working of righteousness";[170] and it is said in
Thâi Shang that the good man "will respect the old and cherish the
young."[171] A Japanese proverb runs, "Regard an old man as thy
father."[172] We read in Leviticus, "Thou shalt rise up before the
hoary head, and honour the face of the old man, and fear thy
God."[173] Veneration {615} for the aged is emphatically inculcated by
Islam.[174] In the sacred books of India it is represented as a
virtue.[175] Herodotus states that the Egyptians resembled the
Lacedæmonians in the reverence the young men paid to their
elders.[176] Plato says in his 'Laws' that everybody ought to consider
that the elder has the precedence of the younger in honour, both among
the gods as also among men who would live in security and happiness;
wherefore it is a foolish thing and hateful to the gods to see an
elder man assaulted by a younger in the city. Everybody ought to
regard a person who is twenty years older than himself, whether male
or female, as his father or mother, and to abstain from laying hands
on any such person "out of reverence to the gods who preside over
birth."[177] Regard for old age lies behind such words as _presbyter_
and the Anglo-Saxon _ealdormonn_; and all travellers among the
Southern Slavs have noticed their extraordinary respect for old
people.[178]
[Footnote 166: Clavigero, _op. cit._ i. 8l. _Cf._ _ibid._ i. 332.]
[Footnote 167: Landa, _Relacion de las cosas de Yucatan_, p. 178.]
[Footnote 168: Davis, _China_, ii. 97.]
[Footnote 169: Wells Williams, _Middle Empire_, i. 805.]
[Footnote 170: Mencius, vii. 1. 15. 3.]
[Footnote 171: _Thâi Shang_, 3.]
[Footnote 172: Griffis, _Mikado's Empire_, p. 505.]
[Footnote 173: _Leviticus_, xix. 32. _Cf._ _Job_, xxxii. 1;
_Proverbs_, xvi. 31, and xx. 29.]
[Footnote 174: Ameer Ali, _Ethics of Islâm_, p. 27 _sq._]
[Footnote 175: _Âpastamba_, i. 5. 15. _Laws of Manu_, ii. 121.
_Dhammapada_, 109.]
[Footnote 176: Herodotus, ii. 80.]
[Footnote 177: Plato, _Leges_, ix. 879. _Cf._ _Idem_, _Respublica_,
v. 465.]
[Footnote 178: Maine, _Early Law and Custom_, p. 243.]
In Europe the paternal authority of the archaic type which we have
just considered has gradually yielded to a system under which the
father has been divested of the most essential rights he formerly
possessed over his children--a system the inmost drift of which is
expressed in the words of the French Encyclopedist, "Le pouvoir
paternel est plutôt un devoir qu'un pouvoir."[179] Already in pagan
times the Roman _patria potestas_ became a shadow of what it had been.
Under the Republic the abuses of paternal authority were checked by
the censors, and in later times the Emperors reduced the father's
power within comparatively narrow limits. Not only was the life of the
child practically as sacred as that of the parent long before
Christianity became the religion of Rome,[180] but Alexander Severus
ordained that heavy punishments should be inflicted on members of a
family by the magistrate only. Diocletian and Maximilian took away the
power of selling freeborn children as slaves. The father's privilege
of {616} dictating marriage for his sons declined into a conditional
veto; and it seems that the daughters also, at length, gained a
certain amount of freedom in the choice of a husband.[181]
[Footnote 179: _Encyclopédie méthodique_, Jurisprudence, vii. 77, art.
Puissance paternelle.]
[Footnote 180: _Supra_, p. 393 _sq._]
[Footnote 181: Westermarck, _op. cit._ p. 236.]
The new religion was anything but unfavourable to this process of
emancipation. The ethical precept of filial piety was changed by
Christ. His church was a militant church. He had come not to send
peace but a sword, "to set a man at variance against his father, and
the daughter against her mother."[182] Being chiefly addressed to the
young, the new teaching naturally caused much disorder in families.
Fathers disinherited their converted sons,[183] and children thought
that they owed no duty to their parents where such a duty was opposed
to the interests of their souls. According to Gregory the Great, we
ought to ignore our parents, hating them and flying from them when
they are an obstacle to us in the way of the Lord;[184] and this
became the accepted theory of the Church.[185] Nay, it was not only in
similar cases of conflict that Christianity exercised a weakening
influence on family ties which had previously been regarded with
religious veneration. In all circumstances the relationship between
child and parent was put in the shade by the relationship between man
and God. "Call no man your father upon the earth: for one is your
Father, which is in Heaven."[186] "If any man come to me, and hate not
his father, and mother, and wife, and children, and brethren, and
sisters, yea, and his own life also, he cannot be my disciple."[187]
At the same time the fifth commandment, though modified by
considerations which would never have occurred to the mind of an
orthodox Jew, was left formally intact. Obedience to parents was, in
fact, repeatedly enjoined by St. Paul as a Christian duty.[188] It was
regarded as a prerequisite {617} for the veneration of God. "If we do
not honour and reverence our parents, whom we ought to love next to
God, and whom we have almost continually before our eyes, how can we
honour or reverence God, the supreme and best of parents, whom we
cannot see?"[189]
[Footnote 182: _St. Matthew_, x. 34 _sq._ _St. Luke_, xii. 51 _sqq._]
[Footnote 183: Tertullian, _Apologeticus_, 3 (Migne, _Patrologiæ
cursus_, i. 280 _sq._).]
[Footnote 184: St. Gregory the Great, _Homiliæ in Evangelia_, xxxvii.
2 (Migne, _op. cit._ lxxvi. 1275).]
[Footnote 185: Thomas Aquinas, _Summa theologica_, ii.-ii. 101. 4.]
[Footnote 186: _St. Matthew_, xxiii. 9.]
[Footnote 187: _St. Luke_, xiv. 26.]
[Footnote 188: _Ephesians_, vi. 1 _sqq._ _Colossians_, iii. 20.]
[Footnote 189: _Catechism of the Council of Trent_, iii. 5. 1.]
Ancient, deep-rooted ideas die slowly. Whilst among Teutonic peoples
the grown-up child is recognised both by custom and law as independent
of the parents, and the parental authority over minors is regarded
merely in the light of guardianship,[190] the Roman notions of
paternal rights and filial duties have to some extent survived in
Latin countries, not only through the Middle Ages, but up to the
present time. "Above the majesty of the feudal baron," says M.
Bernard, "that of the paternal power was held still more sacred and
inviolable. However powerful the son might be, he would not have dared
to outrage his father, whose authority was in his eyes always
confounded with the sovereignty of command."[191] Du Vair remarks,
"Nous devons tenir nos pères comme des dieux en terre."[192] Bodin
wrote, in the later part of the sixteenth century, that, though the
monarch commands his subjects, the master his disciples, the captain
his soldiers, there is none to whom nature has given any command
except the father, "who is the true image of the great sovereign God,
universal father of all things."[193] According to edicts of Henry
III., Louis XIII., and Louis XIV., sons could not marry before the age
of thirty, nor daughters before the age of twenty-five, without the
consent of the father and mother, on pain of being disinherited.[194]
And even now in France considerable power is accorded to parents, not
only by custom and public sentiment, but by law. A child cannot quit
the paternal residence without the permission of the father before the
age of twenty-one, except for enrolment {618} in the army.[195] For
grave misconduct by his children the father has strong means of
correction.[196] A son under twenty-five and a daughter under
twenty-one could not until 1907 marry without parental consent;[197]
and even when a man had attained his twenty-fifth year and a woman her
twenty-first, both were still bound to ask for it, by a formal
notification.[198]
[Footnote 190: Starcke, _La famille dans les différentes sociétés_,
p. 213 _sqq._]
[Footnote 191: Bernard, quoted in Spencer's _Descriptive Sociology_,
France, p. 38.]
[Footnote 192: Du Vair, quoted by de Ribbe, _Les familles et la
société en France avant la Révolution_, p. 51.]
[Footnote 193: Bodin, _De republica_, i. 4, p. 31.]
[Footnote 194: Koenigswarter, _Histoire de l'organisation de la
famille en France_, p. 231.]
[Footnote 195: _Code Civil_, art. 374.]
[Footnote 196: _Ibid._ art. 375 _sqq._]
[Footnote 197: _Ibid._ art. 148.]
[Footnote 198: _Ibid._ art. 151.]
The parental authority depends, in the first place, on the natural
superiority of parents over their children when young, and on the
helplessness of the latter; and for similar reasons the daughter,
though grown-up, still remains in her father's power. Parents are,
moreover, considered to possess in some measure proprietary rights
over their offspring, being their originators and maintainers;[199]
and in various cases, it seems, the father is also regarded as their
owner because he is the owner of their mother. Filial duties and
parental rights to some extent spring from the children's natural
feeling of affection for their parents,[200] particularly for their
mother,[201] and from the debt of gratitude which they are considered
to owe to those who have brought them into existence and taken care of
them whilst young.[202] The authority of parents is much enhanced and
extended by the sentiment of filial reverence, as distinct from mere
affection. From their infancy children are used to look up to their
parents, {619} especially the father, as to beings superior to
themselves; and this feeling, which by itself has a tendency to
persist, is all the more likely to last even when the parents get old,
as it is based not only on superior strength and bodily skill, but on
superior knowledge, which remains though the physical power be on the
wane. Among savages, in particular, filial regard is largely regard
for one's elders or the aged. The old men represent the wisdom of the
tribe. "Long life and wisdom," say the Iroquois, "are always connected
together."[203] Throughout all West Africa the aged are "the knowing
ones."[204] In his work on the Algerian natives M. Villot
observes:--"Les vieillards, au milieu des sociétés barbares,
représentent la tradition qui tient lieu de patrie; la science des
coutumes et usages qui remplacent la loi; la connaissance des
généalogies qui fixe les degrés de parenté et sert de base à la
détermination des titres de propriété. Pour ces causes, aussi bien
qu'en raison de leur faiblesse et de leurs cheveux blancs, le respect
pour les vieillards est de règle au milieu des indigènes."[205] Among
people who possess no literature the old men are the sole authorities
on religion, as well as on custom. In Australia the deference shown to
them is partly due to the superstitious awe of certain mysterious
rites which are known to them alone, and to the knowledge of which
young persons are only very gradually admitted.[206] Moreover, old age
itself inspires a feeling of mysterious awe. The Moors say that, when
getting old, a man becomes a saint, and a woman a _jinnía_, or evil
spirit--there is something supernatural in both. Among the East
African Embe "it is only by means of the rankest superstition that the
old men are able to maintain their supremacy over the hot-blooded
youths"; they convince the warriors, by presenting them {620} with
some magic emblem, that in the hands of the sages alone rest the fate
and fortune of those who fight in a battle. And old women, also, are
often believed to possess supernatural power, in which case their
influence, in spite of the subservient position of their sex in
general, is almost as great as that of a medicine-man.[207] According
to the beliefs of the natives of Western Victoria, witches always
appear in the form of an old woman.[208] Among the Maoris some of the
aged women exercise the greatest influence over their tribes, being
supposed to possess the power of witchcraft and sorcery.[209] Among
the Abipones, says Charlevoix, "the old women take upon them to be
great witches; and it would be no easy matter to convert them."[210]
In Arabia, as well as in Morocco, old women are always believed to be
skilled in sorcery.[211]
[Footnote 199: _Cf._ _Vasishtha_, xv. 1 _sq._; _Bandháyana
Parisishta_, vii. 5. 2 _sq._]
[Footnote 200: For instances of filial affection among savages see
Catlin, _North American Indians_, ii. 242; Powers, _Tribes of
California_, p. 112 (Mattoal); Selenka, _Sonnige Welten_, p. 34
(Dyaks); Seemann, _Viti_, p. 193; Mathew, 'Australian Aborigines,' in
_Jour. & Proceed. Roy. Soc. N.S. Wales_, xxiii. 388.]
[Footnote 201: For instances of great affection for the mother, see
Munzinger, _Ostafrikanische Studien_, p. 474 (Barea and Kunáma);
Winterbottom, _Native Africans in the Neighbourhood of Sierra Leone_, i.
211; Park, _Travels in the Interior of Africa_, p. 241; New, _op. cit._
p. 101 (Wanika); François, _Nama und Damara, Deutsch-Süd-West-Afrika_,
p. 251 (Mountain Damaras); Rowley, _Africa Unveiled_, p. 164; Lane,
_Manners and Customs of the Modern Egyptians_, p. 70 _sq._; Urquhart,
_op. cit._ ii. 265 _sq._ (Turks); Schmidt, _Ethik der alten Griechen_,
ii. 146, 155. It is said in the Talmud that the child loves its mother
more than its father, whilst it fears its father more than its mother
(Deutsch, _Literary Remains_, p. 55).]
[Footnote 202: _Hsiáo King_, 9 (_Sacred Books of the East_, iii. 479).
_Laws of Manu_, ii. 227. Plato, _Leges_, iv. 717.]
[Footnote 203: Loskiel, _History of the Mission of the United Brethren
among the Indians in North America_, i. 15.]
[Footnote 204: Kingsley, _West African Studies_, p. 142.]
[Footnote 205: Villot, _M[oe]urs, coutumes et institutions des
indigènes de l'Algérie_, p. 47.]
[Footnote 206: Schuermann, 'Aboriginal Tribes of Port Lincoln,' in
Woods, _Native Tribes of South Australia_, p. 226. _Cf._ Nelson,
'Eskimo about Bering Strait,' in _Ann. Rep. Bur. Ethn._ xviii.
304.]
[Footnote 207: Chanler, _op. cit._ pp. 247, 252.]
[Footnote 208: Dawson, _Australian Aborigines_, p. 52.]
[Footnote 209: Angas, _Savage Life and Scenes in Australia and New
Zealand_, i. 317.]
[Footnote 210: Charlevoix, _History of Paraguay_, i. 406.]
[Footnote 211: Niebuhr, _Travels in Arabia_, ii. 216.]
The beliefs held regarding the dead also influence the treatment of
the aged whose lives are drawing to an end. Certain African tribes
treat their old people with every kindness in order to secure their
goodwill after death.[212] A missionary in East Africa heard a negro
say with reference to an old man, "We will do what he says, because he
is soon going to die."[213] The Omahas "were afraid to abandon their
aged on the prairie when away from their permanent villages lest
Wakanda should punish them";[214] and in this case it seems that
Wakanda, at least originally meant the ghost of the dead. The Niase is
an egoist ever in his respect for the old, because he hopes that they
will protect and assist him when they are dead.[215] In China the
doctrine that ghosts may interfere at any moment with human business
and fate, either favourably or unfavourably, "enforces respect for
human life and a charitable {621} treatment of the infirm, the aged,
and the sick, especially if they stand on the brink of the
grave."[216] The regard for the aged and the worship of the dead are
often mentioned together in a way which suggests that there exists an
intrinsic connection between them. Of the Dacotahs Prescott observes,
"Veneration is very great in some Indians for old age, and they all
feel it for the dead."[217] The worship of ancestors is a distinguishing
characteristic of the religious system of Southern Guinea; the
"profound respect for aged persons, by a very natural operation of the
mind, is turned into idolatrous regard for them when dead."[218] "The
Barotse chiefly worship the souls of their ancestors. . . . Cognate to
this worship of ancestors is the great respect displayed for parents
and the old--especially the eldest of a family or tribe."[219] Among
the Herero "the tomb of a father is the most important of all holy
places, the soul of a father the oracle most often consulted."[220]
The Aetas of the Philippine Islands "have a profound respect for
old-age and for their dead."[221] The Ossetes "show the greatest love
and veneration to their parents, to old age generally, and especially
to the memory of their ancestors."[222] In cases like these, however,
it is impossible accurately to distinguish between cause and effect.
Whilst the worship of the dead is, in the first place, due to the
mystery of death, it is evident that the regard in which a person is
held during his lifetime also influences the veneration which is
bestowed on his disembodied soul.
[Footnote 212: Arnot, _op. cit._ p. 78, note.]
[Footnote 213: Lippert, _Kulturgeschichte der Menschheit_, i. 229.]
[Footnote 214: Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._
iii. 369. _Cf._ _ibid._ p. 275.]
[Footnote 215: Modigliani, _Viaggio a Nías_, p. 467.]
[Footnote 216: de Groot, _op. cit._ (vol. iv. book) ii. 450.]
[Footnote 217: Prescott, in Schoolcraft, _Indian Tribes of the United
States_, ii. 196.]
[Footnote 218: Wilson, _Western Africa_, p. 392 _sq._]
[Footnote 219: Decle, _Three Years in Savage Africa_, p. 74 _sq._]
[Footnote 220: François, _op. cit._ p. 192.]
[Footnote 221: Foreman, _op. cit._ p. 209.]
[Footnote 222: von Haxthausen, _Transcaucasia_, p. 414.]
There are thus obvious reasons for the connection between filial
submissiveness and religious beliefs; but the chief cause of this
connection seems to be the extreme importance frequently attached to
the curses and blessings of parents. Among the Nandi in Central
Africa, "if a {622} son refuses to obey his father in any serious
matter, the father solemnly strikes the son with his fur mantle. This
is equivalent to a most serious curse, and is supposed to be fatal to
the son unless he obtains forgiveness, which he can only do by
sacrificing a goat before his father."[223] Among the Mpongwe "there
is nothing which a young person so much deprecates as the curse of an
aged person, and especially that of a revered father."[224] The Barea
and Kunáma are convinced that any undertaking which has not the
blessing of the old people will fail, that every curse uttered by them
must be destructive.[225] Among the Bogos nobody takes an employment
or gives it up, nobody engages in a business or contracts a marriage,
before he has received the blessing of his father or his master.[226]
Among the Herero, "when a chief feels his dissolution approaching, he
calls his sons to the bedside, and gives them his benediction."[227]
The Moors have a proverb that "if the saints curse you the parents
will cure you, but if the parents curse you the saints will not cure
you." The ancient Hebrews believed that parents, and especially a
father, could by their blessings or curses determine the fate of their
children;[228] indeed, we have reason to assume that the reward which
in the fifth commandment is held out to respectful children was
originally a result of parental blessings. We still meet with the
original idea in Ecclesiasticus, where it is said: "Honour thy father
and mother both in word and deed, that a blessing may come upon thee
from them. For the blessing of the father establisheth the houses of
children; but the curse of the mother rooteth out foundations."[229]
The same notion that the parents' blessings beget prosperity, and that
their curses bring ruin, prevailed in ancient Greece. Plato says {623}
in his 'Laws':--"Neither God, nor a man who has understanding, will
ever advise any one to neglect his parents. . . . If a man has a
father or mother, or their fathers or mothers treasured up in his
house stricken in years, let him consider that no statue can be more
potent to grant his requests than they are, who are sitting at his
hearth, if only he knows how to show true service to them. . . .
Oedipus, as tradition says, when dishonoured by his sons, invoked on
them curses which every one declares to have been heard and ratified
by the gods, and Amyntor in his wrath invoked curses on his son
Phoenix, and Theseus upon Hippolytus, and innumerable others have also
called down wrath upon their children, whence it is clear that the
gods listen to the imprecations of parents; for the curses of parents
are, as they ought to be, mighty against their children as no others
are. And shall we suppose that the prayers of a father or mother who
is specially dishonoured by his or her children, are heard by the gods
in accordance with nature; and that if a parent is honoured by them,
and in the gladness of his heart earnestly entreats the gods in his
prayers to do them good, he is not equally heard, and that they do not
minister to his request? . . . Therefore, if a man makes a right use
of his father and grandfather and other aged relations, he will have
images which above all others will win him the favour of the
gods."[230] Originally the efficacy of parents' curses and blessings
were ascribed to a magic power immanent in the spoken word itself, and
their Erinyes, who were no less terrible than the Erinyes of neglected
guests,[231] were only personifications of their curses.[232] But in
this, as in other similar cases already noticed, the fulfilment of the
curse or the blessing came afterwards to be looked upon as an act of
divine justice. According to Plato, "Nemesis, the messenger of
justice," watches over unbecoming words uttered {624} to a
parent;[233] and Hesiod says that if anybody reproaches an aged father
or mother "Zeus himself is wroth, and at last, in requital for wrong
deeds, lays on him a bitter penalty."[234] It also seems to be beyond
all doubt that the _divi parentum_ of the Romans, like their _dii
hospitales_, were nothing but personified curses. For it is said, "If
a son beat his parent and he cry out, the son shall be devoted to the
parental gods for destruction."[235] In aristocratic families in
Russia children used to stand in mortal fear of their fathers'
curses;[236] and the country people still believe that a marriage
without the parents' approval will call down the wrath of Heaven on
the heads of the young couple.[237] Some of the Southern Slavs
maintain that if a son does not fulfil the last will of his father,
the soul of the father will curse him from the grave.[238] The
Servians say, "Without reverence for old men, there is no
salvation."[239]
[Footnote 223: Johnston, _Uganda Protectorate_, ii. 879.]
[Footnote 224: Wilson, _Western Africa_, p. 393.]
[Footnote 225: Munzinger, _Ostafrikanische Studien_, p. 475.]
[Footnote 226: _Idem_, _Sitten der Bogos_, p. 90 _sq._]
[Footnote 227: Andersson, _Lake Ngami_, p. 228.]
[Footnote 228: _Genesis_, ix. 25 _sqq._; xxvii. 4, 19, 23, 25, 27
_sqq._; xlviii. 9, 14 _sqq._; xlix. 4, 7 _sqq._ _Judges_, xvii. 2.
_Cf._ Cheyne, 'Blessings and Cursings,' in _Encyclopædia Biblica_,
i. 592; Nowack, 'Blessing and Cursing,' in _Jewish Encyclopedia_,
iii. 244.]
[Footnote 229: _Ecclesiasticus_, iii. 8 _sq._ _Cf._ _ibid._ iii. 16.]
[Footnote 230: Plato, _Leges_, xi. 930 _sq._ _Cf._ _ibid._ iv. 717.]
[Footnote 231: Aeschylus, _Eumenides_, 545 _sqq._]
[Footnote 232: See _Iliad_, xxi. 412 _sq._; Sophocles, _[OE]dipus
Coloneus_, 1299, 1434; von Lasaulx, _Der Fluch bei Griechen und
Römern_, p. 8; Müller, _Dissertations on the Eumenides_, p. 155
_sqq._; Rohde, 'Paralipomena,' in _Rheinisches Museum für Philologie_,
1895, p. 7.]
[Footnote 233: Plato, _Leges_, iv. 717.]
[Footnote 234: Hesiod, _Opera et dies_, 331 _sqq._ (329 _sqq._).]
[Footnote 235: Servius Tullius, in Bruns, _Fontes Juris Romani
antiqui_, p. 14, and Festus, _De verborum significatione_, ver.
_Plorare_: "Si parentem puer verberit, ast olle plorassit, puer divis
parentum sacer esto." _Cf._ Leist, _Alt-arisches Jus Civile_, i. 184.]
[Footnote 236: I am indebted to Prince Kropotkin for this statement.]
[Footnote 237: Kovalewsky, _Modern Customs and Ancient Laws of
Russia_, p. 37.]
[Footnote 238: Krauss, _op. cit._ p. 119.]
[Footnote 239: Maine, _Early Law and Custom_, p. 243.]
In various instances the rewards or punishments attached to the
behaviour of children seem to spring from the belief in parental
blessings and curses, although the cause is not expressly mentioned.
According to ancient Hindu ideas, a father, mother, and spiritual
teacher are equal to the three Vedas, equal to the three gods,
Brahman, Vishnu, and Siva.[240] A man who shows no regard for them
derives no benefit from any religious observance; whereas, "by
honouring his mother, he gains the present world; by honouring his
father, the world of gods; and by paying strict obedience to his
spiritual teacher, the world of Brahman."[241] As in Greece a person
who had assaulted his parent was regarded as polluted by a curse,[242]
so according {625} to the sacred law of India, those who quarrel with
their father, and those who have forsaken their father, mother, or
spiritual teacher, defile a company and must not be entertained at a
Srâddha offering.[243] Those who have struck any of these persons
cannot be readmitted until they have been purified with water taken
from a sacred lake or river.[244] The stain of disobedience towards
mother and father is purged away with barley-corns, like food which
has been licked at by dogs or pigs, or defiled by crows and impure
men.[245] In the Dhammapada it is said that to him who always greets
and constantly reveres the aged four things will increase, namely,
life, beauty, happiness, and power.[246] The Coreans believe that "the
richest rewards on earth and brightest heaven hereafter await the
filial child," whereas "curses and disgrace in this life and the
hottest hell in the world hereafter are the penalties of the
disobedient or neglectful child."[247] It seems to have been a notion
of the ancient Egyptians that a son who accepted the word of his
father would attain old age on that account.[248] The following is an
exhortation which an Aztec gave to his son:--"Guard against imitating
the example of those wicked sons who, like brutes that are deprived of
reason, neither reverence their parents, listen to their instruction,
nor submit to their correction; because whoever follows their steps
will have an unhappy end, will die in a desperate or sudden manner, or
will be killed and devoured by wild beasts."[249] And if an Aztec
married without the sanction of his parents, the belief was that he
would be punished with some misfortune.[250] The Aleuts were of
opinion that those who were attentive to feeble old men, expecting in
exchange their good advice only, would be long-lived and fortunate in
the chase and in war, and would not be neglected when growing old
{626} themselves.[251] In the Tonga Islands "disrespect to one's
superior relations is little short of sacrilege to the gods," and to
pay respect to chiefs is "a superior sacred duty, the non-fulfilment
of which it is supposed the gods would punish almost as severely as
disrespect to themselves."[252] In the same islands great efficacy is
ascribed to curses which are uttered by a superior.[253]
[Footnote 240: _Institutes of Vishnu_, xxxi. 7. _Laws of Manu_, ii. 230.]
[Footnote 241: _Institutes of Vishnu_, xxxi. 9 _sq._ _Cf._ _Laws of
Manu_, ii. 233 _sq._]
[Footnote 242: Plato, _Leges_, ix. 881.]
[Footnote 243: _Institutes of Vishnu_, lxxxii. 28 _sqq._]
[Footnote 244: _Vasishtha_, xv. 19 _sq._]
[Footnote 245: _Baudháyana_, iii. 6. 5. _Institutes of Vishnu_,
xlviii. 20.]
[Footnote 246: _Dhammapada_, 109.]
[Footnote 247: Griffis, _Corea_, p. 236.]
[Footnote 248: _Precepts of Ptah-Hotep_, 39.]
[Footnote 249: Clavigero, _op. cit._ i. 332. Torquemada, _Monarchia
Indiana_, ii. 493.]
[Footnote 250: Torquemada, _op. cit._ ii. 415.]
[Footnote 251: Veniaminof, quoted by Petroff, _loc. cit._ p. 155.]
[Footnote 252: Mariner, _op. cit._ ii. 237, 155.]
[Footnote 253: _Ibid._ ii. 238.]
Why are the blessings and curses of parents supposed to possess such
an extraordinary power? One reason is no doubt the mystery of old age
and the nearness of death. As appears from several of the cases
already referred to, it is not parents only but old people generally
that are held capable of giving due effect to their good and evil
wishes, and this capacity is believed to increase when life is drawing
to its close. The Herero "know really no blessing save that conferred
by the father on his death-bed."[254] According to old Teutonic ideas,
the curse of a dying person was the strongest of all curses.[255] A
similar notion prevailed among the ancient Arabs;[256] and among the
Hebrews the father's mystic privilege of determining the weal or woe
of his children was particularly obvious when his days were manifestly
numbered.[257] But, at the same time, parental benedictions and
imprecations possess a potency of their own owing to the parents'
superior position in the family and the respect in which they are
naturally held. The influence which such a superiority has upon the
efficacy of curses is well brought out by various facts. According to
the Greek notion, the Erinyes avenged wrongs done by younger members
of a family to elder ones, even brothers and sisters, but not _vice
versâ_.[258] The Arabs of Morocco say that the curse of a husband is
as potent as that of a father. The Tonga Islanders believe {627} that
curses have no effect "if the party who curses is considerably lower
in rank than the party cursed."[259] Moreover, where the father was
invested with sacerdotal functions--as was the case among the ancient
nations of culture--his blessings and curses would for that reason
also be efficacious in an exceptional degree.[260]
[Footnote 254: Ratzel, _History of Mankind_, ii. 468.]
[Footnote 255: Grimm, _Teutonic Mythology_, iv. 1690.]
[Footnote 256: Wellhausen, _Reste arabischen Heidentums_, pp. 139, 191.]
[Footnote 257: Cheyne, in _Encyclopædia Biblica_, i. 592.]
[Footnote 258: _Iliad_, xv. 204: "Thou knowest how the Erinyes do
always follow to aid the elder-born." _Cf._ Müller, _Dissertations on
the Eumenides_, p. 155 _sq._]
[Footnote 259: Mariner, _op. cit._ ii. 238.]
[Footnote 260: _Cf._ Nowack, in _Jewish Encyclopedia_, iii. 243 _sq._]
However, the facts which we have hitherto considered are hardly
sufficient to account for the extraordinary development of the
paternal authority in the archaic State. Great though it be, the
influence which magic and religious beliefs exercise upon the paternal
authority is, as we have just seen, largely of a reactive character. A
father's blessings would not be so eagerly sought for, nor would his
curses be so greatly feared, if he were a less important personage in
the family. So, too, as Sir Henry Maine aptly remarks, the father's
power is older than the practice of worshipping him. "Why should the
dead father be worshipped more than any other member of the household
unless he was the most prominent--it may be said, the most
awful--figure in it during his life?"[261] We must assume that there
exists some connection between the organisation of the family and the
political constitution of the society. At the lower stages of
civilisation--though hardly at the very lowest--we frequently find
that the clan has attained such an overwhelming importance that only a
very limited amount of authority could be claimed by the head of each
separate family. But, as will be shown in a following chapter, this
was changed when clans and tribes were united into a State. The new
State tended to weaken and destroy the clan-system, whereas at the
same time the family-tie grew in strength. In early society there
seems to be an antagonism between the family and the clan. Where the
clan-bond is very strong it encroaches upon the family feeling, and
where it is loosened the family gains. Hence Dr. Grosse is probably
right in his {628} assumption that the father became a patriarch, in
the true sense of the word, only as the inheritor of the authority
which formerly belonged to the clan.[262]
[Footnote 261: Maine, _Early Law and Custom_, p. 76.]
[Footnote 262: Grosse, _Die Formen der Familie_, p. 219.]
But whilst in its early days the State strengthened the family by
weakening the clan, its later development had a different tendency.
When national life grew more intense, when members of separate
families drew nearer to one another in pursuit of a common goal, the
family again lost in importance. It has been observed that in England
and America, where political life is most highly developed, children's
respect for their parents is at a particularly low ebb.[263] Other
factors also, inherent in progressive civilisation, contributed to the
downfall of the paternal power--the extinction of ancestor-worship,
the decay of certain superstitious beliefs, the declining influence of
religion, and last, but not least, the spread of a keener mutual
sympathy throughout the State, which could not tolerate that the
liberty of children should be sacrificed to the despotic rule of their
fathers.
[Footnote 263: Monier Williams, _Indian Wisdom_, p. 440, n. 1.]
CHAPTER XXVI
THE SUBJECTION OF WIVES
AMONG the lower races, as a rule, a woman is always more or less in a
state of dependence. When she is emancipated by marriage from the
power of her father, she generally passes into the power of her
husband. But the authority which the latter possesses over his wife
varies extremely among different peoples.
Frequently the wife is said to be the property or slave of her
husband. In Fiji "the women are kept in great subjection. . . . Like
other property, wives may be sold at pleasure, and the usual price is
a musket."[1] "The Carib woman is always in bondage to her male
relations. To her father, brother, or husband she is ever a slave, and
seldom has any power in the disposal of herself."[2] Many North
American Indians are said to treat their wives much as they treat
their dogs.[3] Among the Shoshones "the man is the sole proprietor of
his wives and daughters, and can barter them away, or dispose of them
in any manner he may think proper."[4] Among the East African Wanika a
woman "is a toy, a tool, a slave in the very worst sense; indeed she
is treated as though she were a {630} mere brute."[5] Many other
statements to a similar effect are met with in ethnographical
literature.[6]
[Footnote 1: Wilkes, _U.S. Exploring Expedition_, iii. 332.]
[Footnote 2: Brett, _Indian Tribes of Guiana_, p. 353.]
[Footnote 3: Harmon, _Journal of Voyages in the Interior of North
America_, p. 344.]
[Footnote 4: Lewis and Clarke, _Travels to the Source of the Missouri
River_, p. 307.]
[Footnote 5: New, _Life, Wanderings, and Labourings in Eastern
Africa_, p. 119.]
[Footnote 6: Gibbs, 'Tribes of Western Washington and Northwestern
Oregon,' in _Contributions to N. American Ethnology_, i. 198. von
Martius, _Beiträge zur Ethnographie Amerika's_, i. 104 (Brazilian
Indians). Reade, _Savage Africa_, p. 548 (Negroes of Equatorial
Africa). Proyart, 'History of Loango,' in Pinkerton, _Collection of
Voyages and Travels_, xvi. 570 (Negroes of Loango). Andersson, _Notes
on Travel in South Africa_, p. 236 (Ovambo). Castrén, _Nordiska resor
och forskningar_, i. 310; ii. 56 (Ostyaks). In all these cases women
are said to be mere articles of commerce, or slaves, or kept in a
state of dependence bordering on slavery. In other instances women are
said to be oppressed by their husbands, or treated as inferior beings
(Waitz [-Gerland], _Anthropologie der Naturvölker_, iii. 100 [North
American Indians]; vi. 626 [Melanesians]. Bancroft, _Native Races of
the Pacific States_, i. 121 [Hare and Sheep Indians]. Powers, _Tribes
of California_, p. 133 [Yuki]. Tuckey, _Expedition to Explore the
River Zaire_, p. 371 [Negroes]. Ling Roth, _Aborigines of Tasmania_,
p. 54).]
Yet it seems that even in cases where the husband's power over his
wife is described as absolute, custom has not left her entirely
destitute of rights. Of the Australian aborigines in general it is
said that "the husband is the absolute owner of his wife (or
wives)";[7] of the natives of Central Australia, that "each father of
a family rules absolutely over his own circle";[8] of certain tribes
in West Australia, that the state of slavery in which the women are
kept is truly deplorable, and that the mere presence of their husbands
makes them tremble.[9] But we have reason to believe that there is
some exaggeration in these statements, and they certainly do not hold
good of the whole Australian race. We have noticed above that custom
does not really allow the Australian husband full liberty to kill his
wife.[10] For punishing or divorcing her he must sometimes have the
consent of the tribe.[11] There are even cases in which a wife whose
husband has been unfaithful to her may complain of his conduct to the
elders of the tribe, and he may have to suffer for it.[12] In
North-West-Central Queensland the women are on one special occasion
{631} allowed themselves to inflict punishments upon the men: at a
certain stage of the initiation ceremony "each woman can exercise her
right of punishing any man who may have ill-treated, abused, or
'hammered' her, and for whom she may have waited months or perhaps
years to chastise."[13] Of the natives of Central Australia Messrs.
Spencer and Gillen say that "the women are certainly not treated
usually with anything which could be called excessive harshness";[14]
and we hear from various authorities that in several Australian tribes
married people are often much attached to each other, and continue to
be so even when they grow old.[15] Among the aborigines of New South
Wales, for instance, "the husbands are as a general rule fond of their
wives, and the wives loyal and affectionate to their husbands."[16]
Nay, white men who have lived among the blacks assure us that there
are henpecked husbands even in the Australian desert.[17]
[Footnote 7: Curr, _The Australian Race_, i. 109.]
[Footnote 8: Eyre, _Expeditions of Discovery into Central Australia_,
ii. 317.]
[Footnote 9: Salvado, _Mémoires historiques sur l'Australie_, p. 279.
For other similar statements referring to the Australian aborigines,
see Nieboer, _Slavery as an Industrial System_, p. 11.]
[Footnote 10: _Supra_, p. 418.]
[Footnote 11: Nieboer, _op. cit._ p. 17.]
[Footnote 12: _Ibid._ p. 18.]
[Footnote 13: Roth, _Ethnol. Studies among the North-West-Central
Queensland Aborigines_, pp. 141, 176.]
[Footnote 14: Spencer and Gillen, _Native Tribes of Central
Australia_, p. 50.]
[Footnote 15: Westermarck, _History of Human Marriage_, p. 359.
Stirling, _Report of the Horn Expedition to Central Australia_,
Anthropology, p. 36.]
[Footnote 16: Hill and Thornton, _Aborigines of New South Wales_, p. 7.]
[Footnote 17: Calvert, _Aborigines of Western Australia_, p. 31.]
Other instances may be added to show that the so-called absolute
authority of husbands over their wives is not to be taken too
literally. Of the Guiana Indians Sir E. F. Im Thurn observes:--"The
woman is held to be as completely the property of the man as his dog.
He may even sell her if he chooses."[18] But in another place the same
authority admits not only that the women in a quiet way may have a
considerable influence with the men, but that, "even if the men
were--though this is in fact quite contrary to their nature--inclined
to treat them cruelly, public opinion would prevent this."[19] Of the
Plains Indians of the United States Colonel Dodge writes:--"The
husband owns his wife entirely. He may abuse her, beat her, even kill
her without question. She is more absolutely a slave than any negro
before the war of rebellion." But {632} on the following page we are
told that custom gives to every married woman of the tribes "the
absolute right to leave her husband and become the wife of any other
man, the sole condition being that the new husband must have the means
to pay for her."[20] Among the Chippewyans the women are said to be
"as much in the power of the men as any other articles of their
property," although, at the same time, "they are always consulted, and
possess a very considerable influence in the traffic with Europeans,
and other important concerns."[21] Among the Mongols a woman is
"entirely dependent on her husband"; yet "in the household the rights
of the wife are nearly equal to those of the husband."[22] Dr.
Paulitschke tells us that among the Somals, Danakil, and Gallas, a
wife has no rights whatever in relation to her husband, being merely a
piece of property; but subsequently we learn that she is his equal,
and "a mistress of her own will."[23] We must certainly not, like Mr.
Spencer, conclude that where women are exchangeable for oxen or other
beasts they are "of course" regarded as equally without personal
rights.[24] The bride-price is a compensation for the loss sustained
in the giving up of the girl, and a remuneration for the expenses
incurred in her maintenance till the time of her marriage;[25] it does
not _eo ipso_ confer on the husband absolute rights over her. With
reference to certain tribes in South-Eastern Africa, the Rev. James
Macdonald observes:--"A man obtains a wife by giving her father a
certain number of cattle. This, though often called such, is not
purchase in the usual sense of the word. The woman does not become a
chattel. She cannot be resold or ill-treated beyond well-defined legal
limits. She retains certain rights to property and an interest in the
cattle paid for her. They are a guarantee for the husband's good {633}
behaviour."[26] There are even peoples among whom the husband's
authority hardly exists, although he has had to pay for his
wife.[27]
[Footnote 18: Im Thurn, _Indians of Guiana_, p. 223.]
[Footnote 19: _Ibid._ p. 215.]
[Footnote 20: Dodge, _Our Wild Indians_, p. 205 _sq._]
[Footnote 21: Mackenzie, _Voyages to the Frozen and Pacific Oceans_,
p. cxxii. _sq._ Schoolcraft, _Archives of Aboriginal Knowledge_, v. 176.]
[Footnote 22: Prejevalsky, _Mongolia_, i. 69 _sqq._]
[Footnote 23: Paulitschke, _Ethnographie Nordost-Afrikas_, pp. 189,
190, 244.]
[Footnote 24: Spencer, _Principles of Sociology_, i. 750.]
[Footnote 25: Westermarck, _History of Human Marriage_, p.
402.]
[Footnote 26: Macdonald, _Light in Africa_, p. 159.]
[Footnote 27: _E.g._, the Navahos and Pelew Islanders (Westermarck,
_op. cit._ pp. 392, 393, 398 _sq._ For the position of wives among
these peoples, see _infra_, pp. 638, 643).]
Among many peoples the hardest drudgeries of life are said to be
imposed on the women. Among the Kutchin "the women are literally
beasts of burden to their lords and masters. All the heavy work is
performed by them."[28] The Californian Karok, while on a journey,
lays by far the greatest burdens on his wife, whom he regards as a
drudge.[29] Among the Kenistenos the life of the women is an
uninterrupted succession of toil and pain, hence "they are sometimes
known to destroy their female children, to save them from the miseries
which they themselves have suffered."[30] "The condition of the women
among the Chaymas," says von Humboldt, "like that in all
semi-barbarous nations, is a state of privation and suffering. The
hardest labour is their share."[31] Among the Australian aborigines
"wives have to undergo all the drudgery of the camp and the march,
have the poorest food and the hardest work."[32] In Eastern Central
Africa "the women hold an inferior position. They are viewed as beasts
of burden, which do all the harder work."[33] Among the Kakhyens "the
men are averse to labour, but the lot of all women, irrespective of
rank, is one of drudgery";[34] and so forth.[35] But it seems that
{634} these and similar statements, however correct they be, hardly
express the whole truth. In early society each sex has its own
pursuits. The man is responsible for the protection of the family,
and, ultimately, for its support. His occupations are such as require
strength and agility--fighting, hunting, fishing, the construction of
implements for the chase and war, and, frequently, the cutting of
trees and the building of lodges.[36] The woman may accompany him as a
helpmate on his expeditions, sometimes even participating in the
battle,[37] and when they travel she generally carries the baggage.
But her principal occupations are universally of a domestic kind: she
procures wood and water, prepares the food, dresses skins, makes
clothes, takes care of the children. She, moreover, supplies the
household with vegetable food, gathers roots, berries, acorns, and so
forth, and among agricultural peoples very frequently cultivates the
soil. Whilst cattle-rearing, having developed out of the chase, is
largely a masculine pursuit,[38] agriculture, having developed out of
collecting seeds and plants, originally devolves on the
women.[39]
[Footnote 28: Hardisty, 'Loucheux Indians,' in _Smithsonian Report_,
1866, p. 312.]
[Footnote 29: Powers, _op. cit._ p. 23 _sq._]
[Footnote 30: Schoolcraft, _Archives of Aboriginal Knowledge_, v. 167.]
[Footnote 31: von Humboldt, _Personal Narrative of Travels_, iii. 238.]
[Footnote 32: Curr, _The Australian Race_, i. 110.]
[Footnote 33: Macdonald, _Africana_, i. 35.]
[Footnote 34: Anderson, _Mandalay to Momien_, p. 137.]
[Footnote 35: For other instances, see Mackenzie, _Voyages to the
Frozen and Pacific Oceans_, p. 147 (Rocky Mountain Indians); Parker,
in Schoolcraft, _Archives_, v. 684 (Comanches); Im Thurn, _op. cit._
p. 215 (Guiana Indians); Keane, 'Botocudos,' in _Jour. Anthr. Inst._
xiii. 206; Weddell, _Voyage towards the South Pole_, p. 156, Darwin,
_Journal of Researches_, p. 216, and Bove, _Patagonia_, p. 131
(Fuegians); Nieboer, _op. cit._ p. 13 _sqq._ (Australian aborigines);
Williams and Calvert, _Fiji_, p. 145; Forster, _Voyage round the
World_, ii. 324 (natives of Tana, of the New Hebrides); Zimmermann,
_Inseln des indischen und stillen Meeres_, ii. 17 (New Caledonians),
105 (New Irelanders); Lewin, _Wild Races of South-Eastern India_, pp.
192 (Toungtha), 254 _sq._ (Kukis); Rowney, _Wild Tribes of India_, p.
214 (most of the wild tribes of India); Reade, _op. cit._ pp. 51, 259,
545 (various African peoples); Waitz, _Anthropologie der Naturvölker_,
ii. 117 (Negroes); Valdau, 'Om Ba-Kwileh folket,' in _Ymer_, v. 167,
169.]
[Footnote 36: See Spencer, _Principles of Sociology_, i. 750 _sqq._]
[Footnote 37: For women taking part in battles, see Schoolcraft,
_Indian Tribes of the United States_, i. 236 (Comanches); Powers, _op.
cit._ pp. 246 (Shastika Indians of California), 253 (Modok Indians of
California); Waitz [-Gerland], _op. cit._ iii. 375 (Caribs), vi. 121
(Maoris); Wilkes, _op. cit._ v. 93 (Kingsmill Islanders); Kotzebue,
_Voyage of Discovery into the South Sea_, iii. 171 (natives of
Radack).]
[Footnote 38: Grosse, _Die Formen der Familie_, p. 92 _sqq._]
[Footnote 39: _Ibid._ p. 159. Hildebrand, _Recht und Sitte auf den
verschiedenen wirthschaftlichen Kulturstufen_, p. 44 _sqq._ Dargun,
'Ursprung und Entwicklungsgeschichte des Eigenthums,' in _Zeitschr. f.
vergl. Rechtswiss._ v. 39, 110. Bücher, _Die Entstehung der
Volkswirthschaft_, p. 36 _sqq._ Schurtz, _Das afrikanische Gewerbe_,
p. 7. Ling Roth, 'Origin of Agriculture,' in _Jour. Anthr. Inst._ xvi.
119 _sq._ Mason, _Woman's Share in Primitive Culture_, pp. 15 _sqq._,
146 _sqq._, 277 _sq._ Havelock Ellis, _Man and Woman_, p. 5. von den
Steinen, _Unter den Naturvölkern Zentral-Brasiliens_, p. 214. von
Schuetz-Holzhausen, _Der Amazonas_, p. 67 (Peruvian Indians). Waitz,
_op. cit._ iii. 376 (Caribs). Prescott, in Schoolcraft, _Indian Tribes
of the United States_, i. 235 (Dacotahs). Colden, _ibid._ iii. 191;
Seaver, _Narrative of the Life of Mrs. Mary Jemison_, p. 168
(Iroquois). 'Die Baluga-Negritos der Provinz Pampanga (Luzon),' in
**_Globus_, xli. 238. Zöller, _Kamerun_, iii. 58 (Banaka and Bapuku).
Möller, Pagels, and Gleerup, _Tre år i Kongo_, i. 129, 137 (Kuilu
Negroes), 270 (Bakongo). Valdau, in _Ymer_, v. 165 (Bakwileh).
Burrows, 'Natives of the Upper Welle District,' in _Jour. Anthr.
Inst._ xxviii. 41 (Niam-Niam). New, _op. cit._ pp. 114 (Wanika), 359
(Wataveta). Stuhlmann, _Mit Emin Pascha ins Herz von Afrika_, p. 182
(Waganda). Pogge, _Im Reiche des Muata Jamwo_, p. 243 (Kalunda of
Mussumba). Decle, _Three Years in Savage Africa_, pp. 78, 79, 85
(Barotse), 160 (Matabele). von Weber, _Vier Jahre in Afrika_, ii. 195
(Zulus). There are, however, exceptions to the rule. Among the Creeks
and Cherokee Indians not a third part as many women as men are seen at
work in their plantations (Bartram, in _Trans. American Ethn. Soc._
iii. pt i. 31). Among the Wakamba both sexes work in the fields, all
heavy work, such as clearing and breaking new ground, being done by
men (Decle, _op. cit._ p. 493). Among various peoples, indeed, such
agricultural work as requires considerable strength devolves on the
male sex (Hildebrand, _op. cit._ p. 44 _sqq._ Havelock Ellis, _Man and
Woman_, p. 5). In the Malay Archipelago the men are chiefly engaged in
the field-work (Ratzel, _History of Mankind_, i. 441). In the
Kingsmill Islands (Wilkes, _op. cit._ v. 91), Tonga (Cook, _Voyage to
the Pacific Ocean_, i. 390 _sqq._), and the Caroline Group (Cantova,
quoted _ibid._ i. 392, note) the soil is cultivated by the men. Among
the Gallas, "whilst the women tend the sheep and oxen in the field,
and manage the hives of bees, the men plough, sow, and reap" (Harris,
_Highlands of Aethiopia_, iii. 47).]
{635} The various occupations of life are thus divided between the
sexes according to rules; and, though the formation of these rules no
doubt has been more or less influenced by the egoism of the stronger
sex, the essential principle from which they spring lies deeper. They
are on the whole in conformity with the indications which nature
herself has given. Take, for instance, the apparently cruel custom of
using the women as beasts of burden. To the superficial observer, as
M. Pinart remarks--with special reference to the Panama Indians,--it
may indeed seem strange that the woman should be charged with a heavy
load, while the man walking before her carries nothing but his
weapons. But a little reflection will make it plain that the man has
good reason for keeping himself free and mobile. The little caravan is
surrounded with dangers: when traversing a savannah or a forest a
hostile Indian may appear at any moment, or a tiger or a snake may lie
in wait for the travellers. Hence the man must be on the alert, and
ready in an instant to catch his arms to defend himself and his family
against the aggressor.[40] Dobrizhoffer writes, "The luggage being all
committed to the women, the Abipones travel armed {636} with a spear
alone, that they may be disengaged to fight or hunt, if occasion
require."[41]
[Footnote 40: Pinart, quoted by Nieboer, _op. cit._ p. 21.]
[Footnote 41: Dobrizhoffer, _Account of the Abipones_, ii. 118. _Cf._
Wied-Neuwied _Reise nach Brasilien_, ii. 17, 37 (Botocudos); Giddings,
_Principles of Sociology_, p. 266 _sq._]
Moreover, whatever may have been the original reason for allotting a
certain occupation to the one sex to the exclusion of the other, any
such restriction has subsequently been much emphasised by custom, and
in many cases by superstition as well.[42] In Africa it is a common
belief that the cattle get ill if women have anything to do with
them.[43] Hence among most Negro races milking is only permitted to
men.[44] In South-Eastern Africa "a woman must not enter the cattle
fold."[45] The Bechuanas never allow women to touch their cattle,
hence the men have to plough themselves.[46] In North America Indian
custom and superstition ordain that the wife must carefully keep away
from all that belongs to her husband's sphere of action.[47] On the
other hand, among the Dacotahs "the men do not often interfere with
the work of the women; neither will they help them if they can avoid
it, for fear of being laughed at and called a woman."[48] In Abyssinia
"it is infamy for a man to go to market to buy anything. He cannot
carry water or bake bread; but he must wash the clothes belonging to
both sexes, and, in this function, the women cannot help him."[49]
Among the Beni A[h.]sen tribe in Morocco the women of the village
where I was staying were quite horrified when one of my native
servants set out to fetch water; they would on no account allow him to
do what they said was a woman's business. The Greenlander regards it
as scandalous for a man to interfere with any occupation which belongs
to the women. When he has brought his booty to land, he troubles
himself no further about it; "for it would be a stigma on his
character, {637} if he so much as drew a seal out of the water."[50]
Among the Bakongo a man would be much ridiculed by the women
themselves, if he wanted to help them in their work in the field.[51]
Sometimes agriculture is supposed to be dependent for success on a
magic quality in woman, intimately connected with child-bearing.[52]
Some Orinoco Indians said to Father Gumilla:--"When the women plant
maize the stalk produces two or three ears; when they set the manioc
the plant produces two or three baskets of root; and thus everything
is multiplied. Why? Because women know how to produce children, and
know how to plant the corn so as to ensure its germinating. Then, let
them plant it; we do not know so much as they do."[53]
[Footnote 42: See Crawley, _Mystic Rose_, p. 49 _sq._]
[Footnote 43: Schurtz, _Das afrikanische Gewerbe_, p. 10.]
[Footnote 44: Ratzel, _op. cit._ ii. 419.]
[Footnote 45: Macdonald, _Life in Africa_, p. 221.]
[Footnote 46: Holub, 'Central South African Tribes,' in _Jour. Anthr.
Inst._ x. 11.]
[Footnote 47: Waitz, _op. cit._ iii. 100.]
[Footnote 48: Prescott, in Schoolcraft, _Indian Tribes of the United
States_, iii. 235.]
[Footnote 49: Bruce, _Travels to Discover the Source of the Nile_
iv. 474.]
[Footnote 50: Nansen, _First Crossing of Greenland_, ii. 313. Cranz,
_History of Greenland_, i. 138, 154.]
[Footnote 51: Möller, Pagels, and Gleerup, _op. cit._ i. 270.]
[Footnote 52: See Payne, _History of the New World_, ii. 8.]
[Footnote 53: Gumilla, _El Orinoco ilustrado_, ii. 274 _sq._]
It is obvious that this strict division of labour is apt to mislead
the travelling stranger. He sees the women hard at work, and the men
idly looking on; and it escapes him that the latter will have to be
busy in their turn, within their own sphere of action. What is largely
due to the force of custom is taken to be sheer tyranny on the part of
the men; and the wife is pronounced to be an abject slave of her
husband, destitute of all rights. And yet the strong differentiation
of work, however burdensome it may be to the wife, is itself a source
of rights, giving her authority within the circle which is exclusively
her own. Among the Banaka and Bapuku the wife, though said to be her
husband's property and slave, is nevertheless an autocrat in her own
house, strong enough to bid defiance to her lord and master.[54] Among
the North American Indians, Schoolcraft observes, "the lodge itself,
with all its arrangements, is the precinct of the rule and government
of the wife. . . . The husband has no voice in this matter."[55] Many
other statements to a similar effect will be quoted below.
[Footnote 54: Steinmetz, _Rechtsverhältnisse_, p. 29 _sq._]
[Footnote 55: Schoolcraft, _Indian in his Wigwam_, p. 73.]
{638} We have reason, then, to believe that the authority which savage
husbands possess over their wives is not always quite so great as it
is said to be. And we must distinctly reject as erroneous the broad
statement that the lower races in general hold their women in a state
of almost complete subjection.[56] Among many of them the married
woman, though in the power of her husband, is known to enjoy a
remarkable degree of independence, to be treated by him with
consideration, and to exercise no small influence upon him. In several
cases she is stated to be his equal, and in a few his superior.
[Footnote 56: Thus Meiners says (_History of the Female Sex_, i. 2),
"Among savage nations, the entrance into the married state is for the
female the commencement of the most cruel and abject slavery; for
which reason many women dread matrimony more than death." In a recent
work on the primitive family an Italian writer regards it as perhaps
the most fundamental fact in the family institution that the woman is
always and everywhere "sottoposta al più gravoso _mundium_ maritale"
(Amadori-Virgilj, _L'istituto famigliare nelle società primordiali_,
p. 138).]
Among many of the South American Indians the women have been
noticed to occupy a respected position in the family or community.[57]
Thus, among the Goajiros of Colombia, "in a quarrel or drunken brawl,
women often save bloodshed by stepping in and tearing the weapons out
of their husband's or brother's hand. Travelling with women is
consequently perfectly safe, and in case of danger, if one undertakes
to protect a stranger, he may rely upon coming out all right."[58]
Among the Tarahumares of Mexico--in spite of their saying that one man
is as good as five women--the woman "occupies a comparatively high
position in the family, and no bargain is ever concluded until the
husband has consulted his wife in the matter."[59] Among the Navahos
of New Mexico the women "exert a great deal of influence";[60] they
"are very independent of menial duties, and leave their husbands upon
the slightest pretext of dislike";[61] "by common consent the house
and all the domestic gear belongs entirely to the wife."[62] In {639}
his description of North American Indians Mr. Grinnell observes:--"The
Indian woman, it is usually thought, is a mere drudge and slave, but,
so far as my observations extend, this notion is wholly an erroneous
one. It is true that the women were the labourers of the camp; that
they did all the hard work, about which there was no excitement . . . .
but they were not mere servants. On the contrary, their position was
very respectable. They were consulted on many subjects, not only in
connection with family affairs, but in more important and general
matters. Sometimes women were even admitted to the councils and spoke
there, giving their advice. . . . In ordinary family conversation
women did not hesitate to interrupt and correct their husbands when
the latter made statements with which they did not agree, and the men
listened to them with respectful attention, though of course this
depended on the standing of the woman, her intelligence, etc."[63]
Another competent observer, Ten Kate, strongly protests against the
statement that, among the North American Indians, women are treated as
beasts of burden, and affirms that their condition, as compared with
that of the women of the lower classes in civilised countries, is
rather better than worse.[64] Among the Omahas the women had an equal
standing in society with the men; both the husband and wife were at
the head of the family and the joint owners of the lodge, robes, and
so forth, so that the man could not give away anything if his wife was
unwilling.[65] Among the Senecas, "usually, the female portion ruled
the house, and were doubtless clannish enough about it. The stores
were in common; but woe to the luckless husband or lover who was too
shiftless to do his share of the providing. No matter how many
children, or whatever goods he might have in the house, he might at
any time be ordered to pick up his blanket and budge."[66] "From
documentary references," says Mr. Mooney, "it is apparent that there
existed among the Cherokee a custom analogous to that found among the
Iroquois and probably other Eastern tribes, by which the decision of
important questions relating to peace and war was left to a vote of
the women."[67] Among the Salish, or Flatheads, "although the women
are required to do much hard labour, they are {640} by no means
treated as slaves, but, on the contrary, have much consideration and
authority."[68] Among the Nootkas "wives are consulted in matters of
trade, and in fact seem to be nearly on terms of equality with their
husbands, except that they are excluded from some public feasts and
ceremonies."[69] Among the Indians about Puget Sound, also, women "are
always consulted in matters of trade before a bargain is closed," and
"acquire great influence in the tribe."[70] The Thlinket woman is not
the slave of her husband; she has determinate rights, and her
influence is considerable.[71] Among the natives of Cross Cape she
even possesses "acknowledged superiority over the other sex."[72]
Among the Western Tinneh "the women do only a fair share of the work
and have a powerful voice in most affairs."[73] In Kadiak they were
held in much respect, and enjoyed great liberties.[74] Among the
Kamchadales they had the command of everything, and the husbands were
their obedient slaves.[75] Nordenskiöld says of the Chukchi:--"The
power of the woman appears to be very great. In making the more
important bargains, even about weapons and hunting implements, she is,
as a rule, consulted, and her advice is taken. A number of things
which form women's tools she can barter away on her own
responsibility, or in any other way employ as she pleases."[76] Mr.
Bancroft's statement concerning the Western Eskimo, that "the lot of
the women is but little better than slavery,"[77] must be understood
as chiefly involving the fact that they have much hard work to do.
According to Dr. Seemann they "are treated, although not as equals, at
least with more consideration than is customary among barbarous
nations"; nay, "it not infrequently happens that the woman is the
chief authority of the house," and "the man {641} never makes a
bargain without consulting his wife, and if she does not approve, it
is rejected."[78] Among the Point Barrow Eskimo "the women appear to
stand on a footing of perfect equality with the men both in the family
and in the community. The wife is the constant and trusted companion
of the man in everything except the hunt, and her opinion is sought in
every bargain or other important undertaking."[79] In Greenland, also,
though the woman is considered much inferior to the man, she is in no
way oppressed,[80] and her husband consults with her on important
matters.[81]
[Footnote 57: Waitz, _Anthropologie der Naturvölker_, iii. 472
(Guaycurus), 530 (Morotocos). von den Steinen, _Unter den Naturvölkern
Zentral-Brasiliens_, p. 332 (Bakaïri).]
[Footnote 58: Simons, 'Exploration of the Goajira Peninsula,' in
_Proceed. Roy. Geo. Soc._ N.S. vii. 792. See also Candelier,
_Rio-Hacha_, p. 256.]
[Footnote 59: Lumholtz, _Unknown Mexico_, i. 265.]
[Footnote 60: Letherman, in _Ann. Rep. Smithsonian Inst._ 1855, p. 294.]
[Footnote 61: Eaton, in Schoolcraft, _Archives_, iv. 217.]
[Footnote 62: Stephen, in _American Anthropologist_, vi. 354.]
[Footnote 63: Grinnell, _Story of the Indian_, p. 46. _Cf._ Waitz,
_op. cit._ iii. 101 _sq._]
[Footnote 64: Ten Kate, _Reizen en ondersoekingen Noord-Amerika_, p.
365. _Cf._ _ibid._ 9.]
[Footnote 65: Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._
iii. 266, 366.]
[Footnote 66: Morgan, _Houses and House-Life of the American
Aborigines_, p. 65 _sq._ See also Dixon, _New America_, p. 46.]
[Footnote 67: Mooney, 'Myths of the Cherokee,' in _Ann. Rep. Bur.
Ethn._ xix. 489.]
[Footnote 68: Hale, _U.S. Exploring Expedition. Vol. VI. Ethnography
and Philology_, p. 207.]
[Footnote 69: Bancroft, _op. cit._ i. 196. _Cf._ Sproat, _Scenes and
Studies of Savage Life_, pp. 93, 95 (Ahts).]
[Footnote 70: Bancroft, _op. cit._ i. 218.]
[Footnote 71: Krause, _Tlinkit-Indianer_, p. 161.]
[Footnote 72: Meares, _Voyages to the North-West Coast of America_,
p. 323.]
[Footnote 73: Dall, _Alaska_, p. 431.]
[Footnote 74: Holmberg, 'Ethnographische Skizzen über die Völker des
russischen Amerika,' in _Acta Soc. Scient. Fennicæ_, iv. 399.]
[Footnote 75: Steller, _Beschreibung von dem Lande Kamtschatka_,
p. 287.]
[Footnote 76: Nordenskiöld, _Vegas färd kring Asien och Europa_,
ii. 144.]
[Footnote 77: Bancroft, _op. cit._ i. 65 _sq._ Mr. Bancroft's
authority is probably Armstrong, who says that the women are, to all
intents and purposes, the slaves of the men, and do the greater part
of the outdoor work, except hunting and fishing; but he adds that they
nevertheless enjoy a higher position and more consideration than is
usual amongst savages (Armstrong, _Personal Narrative of the Discovery
of the North-West Passage_, p. 195).]
[Footnote 78: Seemann, _Narrative of the Voyage of "Herald,"_ ii. 66.]
[Footnote 79: Murdoch, 'Ethnological Results of the Point Barrow
Expedition,' in _Ann. Rep. Bur. Ethn._ ix. 413.]
[Footnote 80: Nansen, _First Crossing of Greenland_, ii. 312.]
[Footnote 81: Nordenskiöld, _Den andra Dicksonska expeditionen till
Grönland_, p. 509.]
Among the nomadic Tangutans the women's rights in the household
seemed to Prejevalsky to be equal to those of the men.[82] Of the
Todas of India it is said that their women "hold a position in the
family quite unlike what is ordinarily witnessed among Oriental
nations. They are treated with respect, and are permitted a remarkable
amount of freedom."[83] Among the Kandhs women "are uniformly treated
with respect; the mothers of families generally with much honour.
Nothing is done either in public or in private affairs without
consulting them, and they generally exert upon the councils of their
tribes a powerful influence." A wife may quit her husband at any time,
except within a year of her marriage, or when she expects offspring,
or within a year after the birth of a child, though, when she quits
him, he has a right to reclaim immediately from her father the whole
sum paid for her.[84] Among the peasants of the North-Western
Provinces of India the wife is an influential personage in the
household, not a mere drudge. Little is done without her knowledge and
advice. If she is badly wronged the tribal council will protect her,
and on the whole her position is, perhaps, not worse than that of her
sisters in a similar grade of life in other parts of the world.[85]
Among the Káttis the men are much under the authority of their
wives.[86] Among the Bheels women "have much influence in the
society," and married men have always had the credit of allowing their
wives to domineer over them.[87] "A Kol or Ho," says Dr. Hayes, "makes
a regular companion {642} of his wife. She is consulted in all
difficulties, and receives the fullest consideration due to her
sex";[88] and Colonel Dalton adds, "As a rule, in no country in the
world are wives better treated."[89] The Garos are "kind husbands, and
their conduct generally towards the weaker sex is marked by
consideration and respect."[90] The Bódo and Dhimáls "use their wives
and daughters well, treating them with confidence and kindness."[91]
The Santal "treats the female members of his family with respect."[92]
Among the Kukis women are generally held in consideration; "their
advice is taken, and they have much influence."[93] Mr. Colquhoun
observes that among the Indo-Chinese races equality of the sexes
prevails, and prevailed long before Buddhism took any hold upon the
country.[94]
[Footnote 82: Prejevalsky, _Mongolia_, ii. 121.]
[Footnote 83: Marshall, _A Phrenologist amongst the Todas_, p. 43.]
[Footnote 84: Macpherson, _Memorials of Service in India_, pp. 69,
132 _sq._]
[Footnote 85: Crooke, _North-Western Provinces of India_, p. 230 _sq._]
[Footnote 86: Rowney, _Wild Tribes of India_, p. 47.]
[Footnote 87: Malcolm, _Memoir of Central India_, ii. 180. Rowney,
_op. cit._ p. 38.]
[Footnote 88: Hayes, quoted by Dalton, _Descriptive Ethnology of
Bengal_, p. 194. _Cf._ Bradley-Birt, _Chota-Nagpore_, p. 100 _sq._]
[Footnote 89: Dalton, _op. cit._ p. 194.]
[Footnote 90: _Ibid._ p. 68.]
[Footnote 91: Hodgson, _Miscellaneous Essays_, i. 150.]
[Footnote 92: Hunter, _Annals of Rural Bengal_, i. 217. _Cf._ _Ymer_,
v. p. xxiv.]
[Footnote 93: Lewin, _Wild Races of South-Eastern India_, p. 254.]
[Footnote 94: Colquhoun, _Amongst the Shans_, p. 234. _Cf._ Fytche,
_Burma_, ii. 72.]
Among the Nicobarese "the position of women is, and always has
been, in no way inferior to that of the other sex. They take their
full share in the formation of public opinion, discuss publicly with
the men matters of general interest to the village, and their opinions
receive due attention before a decision is arrived at. In fact, they
are consulted on every matter, and the henpecked husband is of no
extraordinary rarity in the Nicobars."[95] Mr. Crawfurd thinks that in
the Malay Archipelago "the lot of women may, on the whole, be
considered as more fortunate than in any other country of the East";
they associate with the men "in all respects on terms of such equality
as surprise us in such a condition of society."[96] In Bali they are
on a perfect equality with the men.[97] The Dyak shows great respect
for his wife, and always asks her opinion;[98] he regards her "not as
a slave, but as a companion."[99] Among the Bataks the married women
often have a great influence over their families.[100] In Serang they
have in all matters equal rights with the men, and are, consequently,
treated well.[101] The women of Sulu "have the reputation of ruling
their {643} lords, and possess much weight in the government by the
influence they exert over their husbands."[102]
[Footnote 95: Kloss, _In the Andamans and Nicobars_, p. 242.]
[Footnote 96: Crawfurd, _History of the Indian Archipelago_, i. 73.]
[Footnote 97: Raffles, _History of Java_, ii. p. ccxxxi.]
[Footnote 98: Bock, _Head-Hunters of Borneo_, p. 210 _sq._]
[Footnote 99: Selenka, _Sonnige Welten_, p. 33. _Cf._ Wilkes, _op.
cit._ v. 363.]
[Footnote 100: Steinmetz, _Ethnol. Studien zur ersten Entwicklung der
Strafe_, ii. 299.]
[Footnote 101: Riedel, _De sluik- en kroesharige rassen tusschen
Selebes en Papua_, p. 97.]
[Footnote 102: Wilkes, _op. cit._ v. 343.]
In Melanesia the women generally have to work hard, supplying the
place of slaves;[103] but at least in various islands their condition
is otherwise fairly good. In the Western islands of Torres Straits
"the women appear to have had a good deal to say on most questions and
were by no means downtrodden or ill-used."[104] In some parts of New
Guinea their position is described as one of high esteem.[105] "They
have a large voice in domestic affairs, and occasionally lord it over
their masters"; and their influence is felt not only in domestic
matters, but also in affairs of state.[106] In Erromanga, of the New
Hebrides, although the women did all of the hard plantation work, they
were on the whole well treated by their husbands.[107] The same is
said to be the case in the Solomon Islands;[108] in the eastern part
of New Georgia they do not even seem to do much work.[109] In
Micronesia the position of woman is decidedly good. In the Marianne
Group "the wife is absolute mistress in her house, the husband not
daring to dispose of anything without her consent"; nay, the men are
said to be actually governed by their wives, "the women assuming those
prerogatives which in most other countries are invested in the other
sex."[110] In the Pelew Islands the women are in every respect the
equals of the men; the oldest man, or Obokul, of a family can do
nothing without taking advice with its oldest female members.[111] In
the Caroline Group the weaker sex "enjoys a perfect equality in public
estimation with the other."[112] Among the Mortlock Islanders the wife
is quite independent of her husband.[113] In the Kingsmill Islands
very great consideration is awarded to the women: "they seem to have
exclusive control over the house," whilst all the hard labour is
performed by the {644} men.[114] Among the Line Islanders "no
difference is made in the sexes; a woman can vote and speak as well as
a man, and in general the women decide the question, unless it is one
of war against another island."[115] In many Polynesian islands, also,
their position is by no means bad.[116] In Tonga "women have
considerable respect shown to them on account of their sex,
independent of the rank they might otherwise hold as nobles"; they are
not subjected to hard labour or any very menial work,[117] and their
_status_ in society is not inferior to that of men.[118] In Samoa they
"are held in much consideration, . . . treated with great attention,
and not suffered to do anything but what rightfully belongs to
them."[119] In the valley of Typee, in the Marquesas Group, the women
are allowed every possible indulgence, the religious restrictions of
the taboo alone excepted; they are exempt from toil, and "nowhere are
they more sensible of their power."[120] Rochon wrote of the
Malagasy:--"Man here never commands as a despot; nor does the woman
ever obey as a slave. The balance of power inclines even in favour of
the women."[121] At the present day, in Madagascar, the woman "is not
scorned as essentially inferior to man," but enters into her husband's
cares and joys, and shares his life, much in the same way as a wife
does amongst ourselves.[122]
[Footnote 103: Nieboer, _op. cit._ p. 392 _sqq._ Waitz-Gerland, _op.
cit._ vi. 626.]
[Footnote 104: Haddon, in _Reports of the Cambridge Anthropological
Expedition to Torres Straits_, v. 229.]
[Footnote 105: Ratzel, _op. cit._ i. 274.]
[Footnote 106: Pitcairn, _Two Years among the Savages of New Guinea_,
p. 6l. _Cf._ Bink, in _Bulletin Soc. d'Anthrop. de Paris_, xi. 392;
Hagen, _Unter den Papua's_, pp. 226, 243.]
[Footnote 107: Robertson, _Erromanga_, p. 397.]
[Footnote 108: Parkinson, _Zur Ethnographie der nordwestlichen Salomo
Inseln_, p. 4.]
[Footnote 109: Somerville, 'Ethnogr. Notes in New Georgia,' in _Jour.
Anthr. Inst._ xxvi. 405 _sq._]
[Footnote 110: Moore, _Marriage Customs_, p. 187. Waitz, _op. cit._ v.
pt. i. p. 107 _sq._]
[Footnote 111: Kubary, _Die socialen Einrichtungen der Pelauer_, p. 38
_sq._ _Cf._ _Idem_, 'Die Palau-Inseln,' in _Journal des Museum
Godeffroy_, iv. 43; Keate, _Account of the Pelew Islands_, p. 331.]
[Footnote 112: Hale, _op. cit._ p. 73.]
[Footnote 113: Kubary, 'Die Bewohner der Mortlock Inseln,' in
_Mittheilungen der Geograph. Gesellsch. in Hamburg_, 1878-9, p. 261.]
[Footnote 114: Wilkes, _op. cit._ v. 91.]
[Footnote 115: Tutuila, in _Jour. Polynesian Soc._ i. 269.]
[Footnote 116: See Waitz-Gerland, _op. cit._ vi. 120 _sqq._]
[Footnote 117: Mariner, _Natives of the Tonga Islands_, ii. 97.]
[Footnote 118: Erskine, _Cruise among the Islands of the Western
Pacific_, p. 158.]
[Footnote 119: Wilkes, _op. cit._ ii. 148. _Cf._ Waitz-Gerland, _op.
cit._ vi. 121.]
[Footnote 120: Melville, _Typee_, p. 299.]
[Footnote 121: Rochon, 'Voyage to Madagascar,' in Pinkerton,
_Collection of Voyages and Travels_, xvi 747. _Cf._ Waitz, _op. cit._
ii. 438.]
[Footnote 122: Little, _Madagascar_, p. 63.]
Turning, finally, to the African continent, we find that among the
Negro races the woman, though often heavily burdened and more or less
subservient to her husband, is by no means without influence.[123]
"When we become more closely acquainted with family conditions," Herr
Büttner observes, "we notice that there, as elsewhere, husbands are
under petticoat government, and those most of all who like to pose
before the outer world as masters of their house. The women, including
the aunts, have on all occasions, important and unimportant alike, a
weighty {645} word to contribute."[124] The Monbuttu women, according
to Dr. Schweinfurth, exhibit towards their husbands the highest degree
of independence; "the position in the household occupied by the men
was illustrated by the reply which would be made if they were
solicited to sell anything as a curiosity, 'Oh, ask my wife: it is
hers.'"[125] Among the Momvus "the women are on a footing of equality
with the men, and go hunting with them, and accompany them to the
wars, taking their part in the combat."[126] Among the Madi or Moru
tribe of Central Africa "women are treated with respect and politeness
by the men, who always show them preference, resigning to their use
the best places, and paying them such like courtesies." The women
associate with the men on equal terms, being consulted and honoured;
and any insult to a woman is revenged, nay is frequently the cause of
war.[127] In a Hottentot's house the woman is the supreme ruler, and
the husband has nothing at all to say. "While in public the men take
the prominent part, at home they have not so much power even as to
take a mouthful of sour milk out of the tub, without the wife's
permission. If a man ever should try to do it, his nearest female
relations will put a fine on him, consisting in cows and sheep, which
is to be added to the stock of the wife."[128] Among the peoples of
Berber race the women exercise considerable influence over the men.
Among the Guanches of the Canary Islands they were much
respected.[129] Among the Touareg "la femme est l'égale de l'homme, si
même, par certains côtés, elle n'est dans une condition
meilleure."[130] Among the Beni Amer a husband undertakes nothing
before consulting his wife, on whose goodwill he largely depends.[131]
Of the Aulâd Solîmân, an Arab tribe in the Sahara, Dr. Nachtigal
observes that it was curious to see how powerless those much feared
robbers and cut-throats were in their own houses.[132] Both in the
Sahara[133] and in the East[134] the Bedouin women {646} enjoy a
considerable degree of freedom, and sometimes actually rule over their
husbands.
[Footnote 123: Waitz, _op. cit._ ii. 117. Ratzel, _op. cit._ ii. 332.
Buchner, _Kamerun_, p. 32 _sq._ Möller, Pagels, and Gleerup, _op.
cit._ i. 171 (Lukungu). Steinmetz, _Rechtsverhältnisse_, p. 29 (Banaka
and Bapuku). Lang, _ibid._ p. 225 (Washambala). Burrows, _Land of the
Pigmies_, p. 62 (Niam-Niam). Chanler, _Through Jungle and Desert_, p.
485 (Wakamba).]
[Footnote 124: Büttner, quoted by Ratzel, _op. cit._ ii. 334.]
[Footnote 125: Schweinfurth, _Heart of Africa_, ii. 91.]
[Footnote 126: Burrows, _op. cit._ p. 128.]
[Footnote 127: Felkin, 'Notes on the Madi or Moru Tribe,' in _Proceed.
Roy. Soc. Edinburgh_, xii. 329.]
[Footnote 128: Hahn, _The Supreme Being of the Khoi-Khoi_, p. 19.]
[Footnote 129: Bory de St. Vincent, _Essais sur les Isles Fortunées_,
p. 105. Mantegazza, _Rio de la Plata e Tenerife_ p. 630.]
[Footnote 130: Dyveyrier, _Exploration du Sahara_, p. 339. _Cf._
Chavanne, _Die Sahara_, p. 181; Hourst, _Sur le Niger et au pays des
Touaregs_, p. 209.]
[Footnote 131: Munzinger, _Ostafrikanische Studien_, p. 325.]
[Footnote 132: Nachtigal, _Sahara und Sudan_, ii. 93.]
[Footnote 133: Chavanne, _op. cit._ p. 397.]
[Footnote 134: Wallin, _Reseanteckningar från Orienten_, iii. 151,
152, 269. Blunt, _Bedouin Tribes of the Euphrates_, ii. 214, 226, 228.]
All these statements certainly do not imply that the husband has no
recognised power over his wife, but they prove that his power is by no
means unlimited. It is true that many of our authorities speak rather
of liberties that the woman takes herself than of privileges granted
her by custom; but, as we have seen before, customary rights are
always more or less influenced by habitual practice. It should be
added that among many savage peoples the husband has a right to
divorce his wife only under certain conditions;[135] and among a very
considerable number custom or law permits the wife to separate either
for some special cause or, simply, at will.[136] In certain parts of
Eastern Central Africa divorce may be effected if the husband neglects
to sew his wife's clothes, or if the partners do not please each
other.[137] Among the Shans of Burma the woman has a right to turn
adrift a husband who takes to drinking or otherwise misconducts
himself, and to retain all the goods and money of the partnership.[138]
Among the Irulas of the Neilgherries the option of remaining in union,
or of separating, rests principally with the woman.[139] Among the
Savaras, an aboriginal hill people of the Madras Presidency, "a woman
may leave her husband _whenever she pleases_."[140] This is surely
something very different from that absolute dominion which hasty
generalisers have attributed to savage husbands in general.
[Footnote 135: Westermarck. _op. cit._ p. 523 _sq._]
[Footnote 136: _Ibid._ p. 526 _sqq._]
[Footnote 137: Macdonald, _Africana_, i. 140.]
[Footnote 138: Colquhoun, _Amongst the Shans_, p. 295.]
[Footnote 139: Harkness, _Description of a Singular Aboriginal Race
inhabiting the Neilgherry Hills_, p. 92.]
[Footnote 140: Fawcett, in _Jour. Anthrop. Soc. Bombay_, i. 28.]
It is often said that a people's civilisation may be measured by the
position held by its women. But at least so far as the earlier stages
of culture are concerned, this opinion is not supported by facts.
Among several of the lowest races, including peoples like the Veddahs,
Andaman Islanders, and Bushmans, the female sex is {647} treated with
far greater consideration than among many of the higher savages and
barbarians. Travellers have not seldom noticed that of two
neighbouring tribes the less cultured one sets in this respect an
example to the other. "Among the Bushmans," says Dr. Fritsch, "the
female sex makes life-companions, among the A-bantu beasts of
burden."[141] Lewis and Clarke affirm that the _status_ of woman in a
savage tribe has no necessary relation even to its moral qualities in
general. "The Indians," they say, "whose treatment of the females is
mildest, and who pay most deference to their opinions, are by no means
the most distinguished for their virtues. . . . On the other hand, the
tribes among whom the women are very much debased, possess the
loftiest sense of honour, the greatest liberality, and all the good
qualities of which their situation demands the exercise."[142] That
the condition of woman, or her relative independence, is no safe gauge
of the general culture of a nation, also appears from a comparison
between many of the lower races and the peoples of archaic civilisation.
[Footnote 141: Fritsch, _Die Eingeborenen Süd-Afrika's_, p. 444.]
[Footnote 142: Lewis and Clarke, _op. cit._ p. 441.]
In China the condition of woman has always been inferior to that of
man, and no generous sentiment tending to the amelioration of her
social position has ever come from the Chinese sages.[143] Her
children must pay her respect, but she in her turn owes to her husband
the subjection of a child;[144] a wife is an infinitely less important
personage than a mother in the Chinese social scale.[145] The husband
has certainly not absolute power over his wife: he may not kill her,
nor sell her without her consent,[146] nor even divorce her, except
for certain causes specified by law.[147] But these causes are very
elastic; {648} it is said that "when a woman has any quality that is
not good, it is but just and reasonable to turn her out of
doors."[148] And in a book containing the cream of all the moral
writings of the Chinese, and intended chiefly for children, we
read:--"Brothers are like hands and feet. A wife is like one's
clothes. When clothes are worn out, we can substitute those that are
new. When hands and feet are cut off, it is difficult to obtain
substitutes for them."[149] A woman, on the other hand, cannot obtain
legal separation on any account.[150] Confucius says that "man is the
representative of Heaven, and is supreme over all things. Woman yields
obedience to the instructions of man, and helps to carry out his
principles. On this account she can determine nothing of herself, and
is subject to the rule of the three obediences. When young, she must
obey her father and elder brother; when married, she must obey her
husband; when her husband is dead, she must obey her son."[151] In
Japan, also, a woman was formerly, in the eye of the law, a chattel
rather than a person. "Having all her life under her father's roof
reverenced her superiors, she is expected to bring reverence to her
new domicile, but not love. She must always obey but never be jealous.
She must not be angry, no matter whom her husband may introduce into
his household. She must wait upon him at his meals and must walk
behind him, but not with him. When she dies her children go to her
funeral, but not her husband."[152] In Japan a man might repudiate his
wife for the same reasons as in China,[153] and till the year 1873 a
wife could not obtain separation according to law.[154] However,
though the Japanese wife is "the first servant of the household,"
training and public opinion require that she should be treated with
respect, if the marriage be blessed {649} with children.[155] She is
addressed as "the honourable lady of the house," and her position is
said to be higher than in any other Oriental country.[156]
[Footnote 143: Legge, _Religions of China_, pp. 107, 108, 111.]
[Footnote 144: de Groot, _Religious System of China_, (vol. ii. Book)
i. 550.]
[Footnote 145: Giles, _Strange Stories from a Chinese Studio_,
i. 315, n. 3.]
[Footnote 146: Doolittle, _Social Life of the Chinese_, ii. 209.]
[Footnote 147: Medhurst, 'Marriage, Affinity, and Inheritance in
China,' in _Trans. Roy. As. Soc. China Branch_, iv. 25 _sq._ Gray,
_China_, i. 219. Müller, _Reise der Fregatte Novara_, Ethnographie,
p. 164.]
[Footnote 148: Navarette, 'Account of the Empire of China,' in Awnsham
and Churchill, _Collection of Voyages and Travels_, i. 73.]
[Footnote 149: _Indo-Chinese Gleaner_, i. 164.]
[Footnote 150: Gray, _op. cit._ i. 219.]
[Footnote 151: Legge, _Chinese Classics_, i. 103 _sq._]
[Footnote 152: Griffis, _Religions of Japan_, p. 124 _sq._]
[Footnote 153: Westermarck, _op. cit._ p. 525.]
[Footnote 154: Rein, _Japan_, p. 424 _sq._]
[Footnote 155: _Ibid._ p. 425.]
[Footnote 156: Norman, _The Real Japan_, p. 184. Griffis, _Religions
of Japan_, p. 318.]
From various quarters of the ancient world we hear of the rule that
the husband shall command and the wife obey. The Lord said to the
woman, "Thy desire shall be to thy husband, and he shall rule over
thee."[157] How great the husband's power was among the Hebrews we do
not know exactly. He could divorce his wife if she did not please him
because he had "found some uncleanness in her,"[158] whereas a wife
could not legally separate from her husband.[159] In later times her
condition evidently improved.[160] From the old Jewish point of view
it is surely surprising to find Sirach putting the companionship of a
wife not only above that of a friend, but even above children.[161] In
the Talmud a husband is admonished to love his wife like himself and
to honour her more than himself,[162] though he should take care not
to be ruled by her;[163] and the wife also is authorised to demand a
divorce under certain circumstances, namely, if the husband refuses to
perform his conjugal duty, if he continues to lead a disorderly life
after marriage, if he proves impotent during ten years, if he suffers
from an insupportable disease, or if he leaves the country for ever.[164]
[Footnote 157: **_Genesis_, iii. 16.]
[Footnote 158: _Deuteronomy_, xxiv. 1.]
[Footnote 159: Josephus, _Antiquitates Romanæ_, xv. 7, 10. Keil,
_Manual of Biblical Archæology_, ii. 175.]
[Footnote 160: _Cf._ Klugmann, _Die Frau im Talmud_, p. 63 _sq._]
[Footnote 161: _Ecclesiasticus_, xl. 19, 23. _Cf._ Montefiore,
_Hibbert Lectures on the Religion of the Ancient Hebrews_, p. 491.]
[Footnote 162: Deutsch, _Literary Remains_, p. 56.]
[Footnote 163: _Beza_, fol. 32 B, quoted by Katz, _Der wahre
Talmudjude_, p. 114.]
[Footnote 164: Glasson, _Le mariage civil et le divorce_, p. 149 _sq._]
In the Zoroastrian Yasts a holy woman is defined as one who is "rich
in good thoughts, good words, and good deeds, well-principled, and
obedient to her husband," whereas the fiendish woman is
"ill-principled and disobedient to her husband."[165] According to
Brahmanic law, a woman must in childhood be subject to her father, in
youth {650} to her husband, when her lord is dead to her sons; "a
woman must never be independent."[166] Not even in her own house is
she allowed to do anything independently.[167] Him to whom her father
may give her, or her brother with the father's permission, she shall
obey as long as he lives.[168] She must never do anything that might
displease him;[169] even though he be destitute of virtue, or
unfaithful to her, "a husband must be constantly worshipped as a god
by a faithful wife."[170] A wife who shows disrespect to a husband who
is addicted to some evil passion, is a drunkard, or diseased, shall be
deserted for three months, and be deprived of her ornaments and
furniture.[171] If a wife obeys her husband, she will for that reason
alone be exalted in heaven;[172] but by violating her duty towards
him, she is disgraced in this world, and after death she enters the
womb of a jackal, and is punished with disease for her sin.[173] There
is no indication that a woman can obtain legal separation on any
account, though she may with impunity "show aversion" towards a mad or
outcast husband, a eunuch, one destitute of manly strength, or one
afflicted with such diseases as punish crimes.[174] Again, if she is
sold or repudiated by her husband, she can never become the legitimate
wife of another who may have bought or received her after she was
repudiated.[175] But the husband is not allowed to divorce her
indiscriminately. A wife who drinks spirituous liquor, is of bad
conduct, rebellious, quarrelsome, diseased, mischievous, or wasteful,
may at any time be superseded by another wife; a barren one may be
superseded in the eighth year; one whose children all die, in the
tenth; one who bears daughters only, in the eleventh; whereas a sick
wife who is kind to her husband and virtuous in her conduct, may be
superseded only with her own consent, and must never be {651}
disgraced.[176] The rule, "Let mutual fidelity continue until death,"
may be considered the summary of the highest law for husband and
wife;[177] women must be honoured and adorned by husbands who desire
their own welfare.[178] Various passages in the Mahabharata and
Ramayana indicate that women in India were subjected to less social
restraints in former days than they are at present according to the
rules of Brahmanism, and even enjoyed considerable liberty;[179] and
the Vedic singers know no more tender relation than that between the
husband and his willing, loving wife, who is praised as "his home, the
darling abode and bliss in his house."[180] Yet it is noteworthy that
goddesses play a very insignificant part in the Veda.[181] In this
respect the Pantheon of the Vedic people essentially differs from that
of the ancient Egyptians,[182] a difference which may be due to the
remarkably high position which woman seems to have occupied in Egypt.[183]
[Footnote 165: _Yasts_, xxii. 18, 36. _Cf._ _Dînâ-î Maînôg-î Khirad_,
xxxix. 38 _sq._]
[Footnote 166: _Laws of Manu_, v. 148. _Cf._ _ibid._ ix. 2 _sq._]
[Footnote 167: _Ibid._ v. 147.]
[Footnote 168: _Ibid._ v. 151.]
[Footnote 169: _Ibid._ v. 156.]
[Footnote 170: _Ibid._ v. 154.]
[Footnote 171: _Ibid._ ix. 78.]
[Footnote 172: _Ibid._ v. 155. _Cf._ _ibid._ ix. 29.]
[Footnote 173: _Ibid._ v. 164; ix. 30.]
[Footnote 174: _Ibid._ ix. 79.]
[Footnote 175: _Ibid._ ix. 46. See also the note in Bühler's
translation, _Sacred Books of the East_, xxv. 335.]
[Footnote 176: _Laws of Manu_, ix. 80 _sqq._]
[Footnote 177: _Ibid._ ix. 101.]
[Footnote 178: _Ibid._ iii. 55 _sqq._]
[Footnote 179: Zimmer, _Altindisches Leben_, p. 316 _sqq._ Monier
Williams, _Indian Wisdom_, p. 437 _sq._]
[Footnote 180: Kaegi, _Rigveda_, p. 15.]
[Footnote 181: Macdonell, _Vedic Mythology_, p. 124 _sq._]
[Footnote 182: Maspero, _Dawn of Civilisation_, p. 101 _sq._]
[Footnote 183: _Ibid._ p. 52. Maspero, _Life in Ancient Egypt and
Assyria_, p. 11. Amélineau _L'évolution des idées morales dans
l'Égypte Ancienne_, p. 68 _sqq._ Flinders Petrie, _Religion and
Conscience in Ancient Egypt_, p. 131 _sq._ Brugsch, _Aegyptologie_,
p. 61 _sq._]
In Greece, also, a wife appears to have been a more influential and
independent personage in ancient times, in Homeric society, than she
became afterwards.[184] In the historic age her position was simply
that of the domestic drudge; her virtues were reduced to the
maintenance of good order in her household and obedience to her
husband; her greatest ornament was silence.[185] Aristotle, always a
faithful exponent of the most enlightened opinion of his age, gives
the following description of what he considers to be the ideal
relation of a woman to her husband:--"A good and perfect wife ought to
be mistress {652} of everything within the house. . . . But the
well-ordered wife will justly consider the behaviour of her husband as
a model of her own life, and a law to herself, invested with a divine
sanction by means of the marriage tie and the community of life. . . .
The wife ought to show herself even more obedient to the rein than if
she had entered the house as a purchased slave. For she has been
bought at a high price, for the sake of sharing life and bearing
children, than which no higher or holier tie can possibly exist."[186]
So also, according to Plutarch, the husband ought to rule his wife,
but by sympathy and goodwill, as the soul governs the body, not as a
master does a chattel.[187] The law invalidated whatever a husband did
by the counsel, or at the request, of his wife, whereas the wife, on
her part, could transact no business of importance in her own favour,
nor by will dispose of more than the value of a bushel of barley.[188]
Yet whatever may have been the exact compass of the husband's power in
Greece, it was not unlimited. At Athens a woman could demand divorce
if she was ill-treated by her husband, in which case she merely had to
announce her wishes before the archon.[189]
[Footnote 184: Hermann-Blümner, _Lehrbuch der griechischen
Privatalterthümer_, p. 64 _sqq._ Mahaffy, _Social Life in Greece_, p. 53.]
[Footnote 185: Dickinson, _Greek View of Life_, p. 161. Döllinger,
_The Gentile and the Jew_, ii. 234. 'State of Female Society in
Greece,' in _Quarterly Review_, xxii. 172 _sqq._]
[Footnote 186: Aristotle, _[OE]conomica_, i. 7. _Cf._ _Idem_, _De
animalibus historia_, ix. 1. 2 _sqq._]
[Footnote 187: Plutarch, _Conjugalia præcepta_, 33.]
[Footnote 188: Isaeus, _Oratio de Aristarchi hereditate_, 10, p. 259.
Döllinger, _op. cit._ ii. 234.]
[Footnote 189: Glasson, _Le mariage civil et le divorce_, p. 152 _sq._
Meier and Schömann, _Der attische Process_, p. 512.]
In Rome, in ancient times, the power which the father possessed over
his daughter was generally, if not always,[190] by marriage
transferred to the husband.[191] When marrying a woman passed in
_manum viri_, as a wife she was _filiæ loco_, that is, in law she was
her husband's daughter.[192] And since the Roman house-father
originally had the _jus vitæ necisque_ over his children, the husband
naturally had the same power over his wife. But from her being
destitute of all legal rights we must not conclude that she was {653}
treated with indignity. On the contrary, she generally had a respected
and influential position in the family;[193] and though the husband
could repudiate her at will, it was said that for five hundred and
twenty years _a condita urbe_ there was no such thing as a divorce in
Rome.[194] As Mr. Bryce points out, we cannot doubt that the wide
power which the law gave to the husband "was in point of fact
restrained within narrow limits, not only by affection, but also by
the vigilant public opinion of a comparatively small community."[195]
Gradually, however, marriage with _manus_ fell into disuse, and was,
under the Empire, generally superseded by marriage without _manus_, a
form of wedlock which conferred on the husband hardly any authority at
all over his wife. Instead of passing into his power, she remained in
the power of her father; and since the tendency of the later law, as
we have seen, was to reduce the old _patria potestas_ to a nullity,
she became practically independent.[196]
[Footnote 190: Rossbach, _Römische Ehe_, p. 64. Maine, _Ancient Law_,
p. 155.]
[Footnote 191: Or, properly speaking, to the husband's father, if he
was still alive (Rossbach, _op. cit._ p. 11).]
[Footnote 192: Leist, _Alt-arische Juris Civile_, i. 175. Maine, _op.
cit._ p. 155.]
[Footnote 193: Rossbach, _op. cit._ pp. 36, 117.]
[Footnote 194: Valerius Maximus, ii. 1 (_De matrimoniorum ritu_),
Aulus Gellius, _Noctes Atticæ_, iv. 3. 1.]
[Footnote 195: Bryce, _Studies in History and Jurisprudence_, ii. 389.]
[Footnote 196: Rossbach, _op. cit._ pp. 30, 42. Maine, _op. cit._ p.
155 _sq._ Friedlaender, _Darstellungen aus der Sittengeschichte Roms_,
i. 252 _sqq._]
This remarkable liberty granted to married women, however, was only a
passing incident in the history of the family in Europe. From the very
first Christianity tended to narrow it. Already the latest Roman law,
so far as it is touched by the Constitutions of the Christian
Emperors, bears some marks of a reaction against the liberal doctrines
of the great Antonine jurisconsults, who assumed the equality of the
sexes as a principle of their code of equity.[197] And this tendency
was in a formidable degree supported by Teutonic custom and law. Among
the Teutons a husband's authority over his wife was the same as a
father's over his unmarried daughter.[198] This power, which under
certain circumstances gave the husband a right to kill, sell, or
repudiate his wife,[199] undoubtedly {654} contained much more than
the Church could approve of, and so far she has helped to ameliorate
the condition of married women in Teutonic countries. But at the same
time the Church is largely responsible for those heavy disabilities
with regard to personal liberty, as well as with regard to property,
from which they have suffered up to recent times. The systems, says
Sir Henry Maine, "which are least indulgent to married women are
invariably those which have followed the Canon Law exclusively, or
those which, from the lateness of their contact with European
civilisation, have never had their archaisms weeded out."[200]
[Footnote 197: Maine, _op. cit._ pp. 156, 154.]
[Footnote 198: Brunner, _Deutsche Rechtsgeschichte_, i. 75. Stemann,
_Den danske Retshistorie indtil Christian V.'s Lov_, p. 323.]
[Footnote 199: Grimm, _Deutsche Rechtsalterthümer_, p. 450 _sq._
Brunner, _op. cit._ i. 75. Schröder, _Lehrbuch der deutschen
Rechtsgeschichte_, p. 303.]
[Footnote 200: Maine, _op. cit._ p. 159.]
Christianity enjoins a husband to love his wife as his own body,[201]
to do honour unto her as unto the weaker vessel.[202] However, "man is
not of the woman; but the woman of the man. Neither was the man
created for the woman; but the woman for the man. For this cause ought
the woman to have power on her head."[203] The husband is the head of
the wife, as Christ is the head of the church; hence, "as the church
is subject unto Christ, so let the wives be to their own husbands in
every thing."[204] It is difficult to exaggerate the influence
exercised by a doctrine, so agreeable to the selfishness of men, and
so readily lending itself to be used as a sacred weapon against almost
any attempt to extend the rights of married women, as was this dictum
of St. Paul's. In an essay on the position of women among the early
Christians Principal Donaldson writes, "In the first three centuries I
have not been able to see that Christianity had any favourable effect
on the position of women, but, on the contrary, that it tended to
lower their character and contract the range of their activity."[205]
And in more modern times Christian orthodoxy has constantly been
opposed to the doctrine which once sprang up in pagan {655} Rome and
is nowadays supported by a steadily growing number of enlightened men
and women, that marriage should be a contract on the footing of
perfect equality between husband and wife.
[Footnote 201: _Ephesians_, v. 28.]
[Footnote 202: _1 Peter_, iii. 7.]
[Footnote 203: _1 Corinthians_, xi. 8 _sqq._ _Cf._ _Timothy_,
ii. 11 _sqq._]
[Footnote 204: _Ephesians_, v. 23 _sq._]
[Footnote 205: Donaldson, 'Position of Women among the Early
Christians,' in _Contemporary Review_, lvi. 433.]
* * * * *
The position of married women among the various peoples on earth
depends on such a variety of circumstances that it would be impossible
to enumerate them all. We shall here consider only the most
important.
A few words must first be said about the hypothesis that the social
_status_ of women is connected with the system of tracing descent. Dr.
Steinmetz has tried to show that the husband's authority over his wife
is, broadly speaking, greater among those peoples who reckon kinship
through the father than among those who reckon kinship through the
mother only.[206] The cases examined by Dr. Steinmetz, however, are
too few to allow of any general conclusions, and the statements
concerning the husband's rights are commonly so indefinite and so
incomplete that I think the evidence would be difficult to produce,
even if the investigation were based on a larger number of facts.
Besides, the paternal and maternal systems of descent are often so
interwoven with each other among one and the same people, that it may
equally well be referred to the one class as to the other[207]--a
difficulty which Dr. Steinmetz must surely have felt in his attempt to
treat the subject statistically. There is, moreover, the weak point of
the statistical method generally, the question of selecting
ethnographical units, which I have discussed in another place.[208]
How, for instance, are we to deal with the various tribes of
Australia? They can certainly not, all in a lump, be counted as one
single unit; among some of them the maternal system prevails, among
others the paternal. But then, shall we reckon each tribe as one {656}
unit by itself, or, if not, into how many groups shall we divide them?
When I compare with each other peoples of the same race, at the same
stage of culture, living in the same neighbourhood, under similar
conditions of life, but differing from one another in their method of
reckoning kinship, I do not find that the prevalence of the one or the
other line of descent conspicuously affects the husband's authority.
Nothing of the kind has been noticed in Australia, nor, so far as I
know, in India, where the paternal system among many of the aboriginal
tribes is combined with great, or even extraordinary, rights on the
part of the wife. Among the West African Negroes the position of women
is, to all appearance, no less honourable in tribes like the Ibos,
among whom inheritance runs through males, than in tribes which admit
inheritance through females only;[209] and of the Fulah, among whom
succession goes from father to son,[210] Mr. Winwood Reade observes
that their women are "the most tyrannical wives in Africa," knowing
"how to make their husbands kneel before their charms, and how to
place their little feet upon them."[211] But we have reason to believe
that when the man, on marrying, quits his home and goes to live with
his wife in the house or community of her father, his authority over
his wife is commonly more or less impaired by the presence of her
father or kinsfolk.[212] In Sumatra, in the mode of marriage called
_ambel anak_, he lives with his father-in-law in a state between that
of a son and that of a debtor.[213] But it should be noticed that
neither his living with the family of his wife, nor even his
dependence on her father, necessarily implies a total absence of
marital power. Among the Californian Yokuts, though the husband takes
up his abode in his {657} wife's or father-in-law's house, he is
expressly stated to have the power of life and death over her.[214]
So, also, in the Western islands of Torres Straits, though a man after
marriage usually left his own people and went to live with those of
his wife, he had complete control over her. "In spite of the wife
having asked her husband to marry her, he could kill her should she
cause trouble in the house, and that without any penal consequence to
himself. The payment of a husband to his wife's father gave him all
rights over her, and at the same time annulled those of her father or
her family."[215]
[Footnote 206: Steinmetz, _Ethnologische Studien zur ersten
Entwicklung der Strafe_, ii. ch. 7.]
[Footnote 207: _Cf._ Westermarck, _op. cit._ p. 99 _sqq._]
[Footnote 208: _Idem_, 'Méthode pour la recherche des institutions
préhistoriques à propos d'un ouvrage du professeur Kohler,' in _Revue
Internationale de Sociologie_, v. 451.]
[Footnote 209: Ratzel, _op. cit._ iii. 124.]
[Footnote 210: Waitz, _op. cit._ ii, 469.]
[Footnote 211: Reade, _Savage Africa_, p. 452.]
[Footnote 212: See Mazzarella, _La condizione giuridica del marito
nella famiglia matriarcale_, _passim_; Grosse, _Die Formen der
Familie_, p. 76; Wilkes, _U.S. Exploring Expedition_, iv. 447 (Spokane
Indians). It seems, however, that Dr. Mazzarella in several cases
infers the husband's complete subjection to his father-in-law from
statements in which such a subjection is not really implied.]
[Footnote 213: Marsden, _History of Sumatra_, p. 262.]
[Footnote 214: Powers, _Tribes of California_, p. 382.]
[Footnote 215: Haddon, _Head-Hunters_, p. 160 _sq._]
In the first place, wives' subjection to their husbands is due to the
men's instinctive desire to exert power and to the natural inferiority
of women in such qualities of body and mind as are essential for
personal independence. Generally speaking, the men are their superiors
in strength and courage. They are therefore not only the protectors of
their wives, but also their masters.
In the sexual impulse itself there are elements which lead to
domination on the part of the man and to submission on the part of the
woman. In courtship, animal and human alike, the male plays the more
active, the female the more passive part. During the season of love
the males even of the most timid animal species engage in desperate
combats with each other for the possession of the female, and there
can be no doubt that our primeval human ancestors had, in the same
way, to fight for their wives; even now this kind of courtship is far
from being unknown among savages.[216] Moreover, the male pursues and
tries to capture the female, and she, after some resistance, finally
surrenders herself to him. The sexual impulse of the male is thus
connected with a desire to win the female, and the sexual impulse of
the female with a desire to be pursued and won by the male. In the
female sex there is consequently an instinctive appreciation of manly
strength and courage; this is found in most {658} women, and
especially in the women of savage races, who, like the females of the
lower Vertebrates, commonly give the preference to "the most vigorous,
defiant, and mettlesome male."[217] And woman enjoys the display of
manly force even when it turns against herself. It is said that among
the Slavs of the lower class the wives feel hurt if they are not
beaten by their husbands; that the peasant women in some parts of
Hungary do not think they are loved by their husbands until they have
received the first box on the ear; that among the Italian Camorrists a
wife who is not beaten by her husband regards him as a fool.[218] Dr.
Havelock Ellis believes that the majority of women would probably be
prepared to echo the remark made by a woman in front of Rubens's 'Rape
of the Sabines,' "I think the Sabine women enjoyed being carried off
like that."[219] The same judicious student of the psychology of sex
observes:--"While in men it is possible to trace a tendency to inflict
pain, or the simulacrum of pain, on the women they love, it is still
easier to trace in women a delight in experiencing physical pain when
inflicted by a lover, and an eagerness to accept subjection to his
will. Such a tendency is certainly normal. To abandon herself to her
lover, to be able to rely on his physical strength and mental
resourcefulness, to be swept out of herself and beyond the control of
her own will, to drift idly in delicious submission to another and
stronger will--this is one of the commonest aspirations in a young
woman's intimate love-dreams."[220]
[Footnote 216: Westermarck, _op. cit._ p. 159 _sqq._]
[Footnote 217: Westermarck, _op. cit._ p. 255 _sq._]
[Footnote 218: Havelock Ellis, _Studies in the Psychology of Sex_,
'Analysis of the Sexual Impulse,' &c. p. 66 _sq._]
[Footnote 219: _Ibid._ p. 75.]
[Footnote 220: _Ibid._ p. 74.]
But although a certain degree of submissiveness comes within the
normal limits of female love, though "a woman may desire to be forced,
to be roughly forced, to be ravished away beyond her own will." she
all the time only desires to be forced towards those things which are
essentially agreeable to her.[221] If the man's domination is carried
beyond those limits, it is no longer enjoyed by the {659} woman, but
is felt as a burden, and may call forth resistance. In extreme cases
of oppression, at any rate, the community at large would sympathise
with her, and the public resentment against the oppressor would
gradually result in customs or laws limiting the husband's rights. Yet
perfect impartiality is hardly to be expected from the community. The
men are the leaders of public opinion, and they have a tendency to
favour their own sex. On the other hand, the offended woman may count
upon the support of her fellow-sisters, and thus the women combined
may influence tribal habits and, ultimately, the rules of custom.
Among the Papuans of Port Moresby, for instance, "it is a rare
occurrence for a man to beat his wife, and he does not like to be
reminded of the fact if hasty temper has led him into this mistake.
The other women generally make a song about it, and sing it whenever
he appears; and as no one is so sensitive of ridicule as a New Guinean
savage, he will endure a great deal, even from a shrew wife, before he
attempts to lift his hand."[222] Among the West African Fulah, if a
man repudiates his wife, the women of the village attack him _en
masse_; "like the members of a priesthood, they hate but protect each
other."[223] We have, moreover, to consider that the children's
affection and regard for their mother gives her a power which is no
less real because it is not definitely expressed in custom or law. In
Oriental countries, for example, the mother is always an important
personage in the family. Children are afraid of their father but love
their mother, and when grown-up would certainly be ready to protect
her against a cruel husband.[224]
[Footnote 221: _Ibid._ p. 85.]
[Footnote 222: Nisbet, _A Colonial Tramp_, ii. 181 _sq._]
[Footnote 223: Reade, _Savage Africa_, p. 452. See also Möller,
Pagels, and Gleerup, _op. cit._ i. 171 (Lukungu); Munzinger,
_Ostafrikanische Studien_, p. 324 (Beni Amer).]
[Footnote 224: _Cf._ Burton, _Sindh Revisited_, i. 293; Urquhart,
_Spirit of the East_, ii. 265 _sq._; Doughty, _Arabia Deserta_, i.
239; Westermarck, 'Position of Woman in Early Civilisation,' in
_Sociological Papers_, [1.] p. 160.]
It has often been said that the position of women and the degree of
their dependence among a certain people are largely influenced by
economic conditions. Thus Mr. {660} Hale maintains that the condition
of women is "a question of physical comfort, and mainly of the
abundance or lack of food. . . . When men in their full strength
suffer from lack of the necessaries of existence, and are themselves
slaves to the rigours of the elements, their better feelings are
benumbed or perverted, like those of shipwrecked people famishing on a
raft. Under such circumstances the weaker members of the
community--women, children, the old, the sick--are naturally the chief
sufferers."[225] With reference to the North American Indians the
observation has been made that, where the women can aid in procuring
subsistence for the tribe, they are treated with more equality, and
their importance is proportioned to the share which they take in that
labour; whereas in places where subsistence is chiefly procured by the
exertions of the men, the women are considered and treated as burdens.
Thus, the position of women is exceptionally good in tribes living
upon fish and roots, which the women procure with the same expertness
as the men, whereas it is among tribes living by the chase, or by
other means in which women can be of little service, that we find the
sex most oppressed.[226] Dr. Grosse, again, emphasises the low
_status_ of women not only among hunters, but among pastoral tribes as
well. "The women," he says, "not being permitted to take part in the
rearing of cattle, and not being able to take part in war, possess
nothing which could command respect with the rude shepherd and
robber."[227] Among the lower agricultural tribes, on the other hand,
Dr. Grosse adds, the position of the female sex is often higher. The
cultivation of the ground mostly devolves on the woman, and among
peoples who chiefly subsist by agriculture it is not an occupation
which is looked down upon, as it is among nomadic tribes. This gives
the woman a {661} certain standing, owing to her importance as a
food-provider.[228]
[Footnote 225: Hale, 'Language as a Test of Mental Capacity,' in
_Jour. Anthr. Inst._ xxi. 427.]
[Footnote 226: Lewis and Clarke, _Travels to the Source of the
Missouri River_, p. 441. Waitz, _op. cit._ iii. 343. Bancroft, _Native
Races of the Pacific States_, i. 242 _sq._]
[Footnote 227: Grosse, _op. cit._ pp. 48, 49, 74, 75, 109 _sqq._]
[Footnote 228: _Ibid._ p. 182.]
In these generalisations there is no doubt a great deal of truth; but
they do not hold good universally or without modifications. Among
several peoples who subsist chiefly by the chase or the rearing of
cattle, the position of women is exceedingly good. To mention only one
instance out of many, Professor Vámbéry observes that among the
nomadic Kara-Kirghiz the female sex is treated with greater respect
than among those Turks who lead a stationary life and practise
agriculture.[229] Indeed, the general theory that women are more
oppressed in proportion as they are less useful, is open to doubt.
Commonly they are said to be oppressed by their savage husbands just
by being compelled to work too hard; and that work does not
necessarily give authority is obvious from the institution of slavery.
But at the same time the notion, prevalent in early civilisation, that
the one sex must not in any way interfere with the pursuits of the
other sex, may certainly, especially when applied to an occupation of
such importance as agriculture, increase the influence of those who
are engaged in it. Considering further that the cultivated soil is not
infrequently regarded as the property of the women who till it,[230]
it is probable that, in certain cases at least, the agricultural
habits of a people have had a favourable effect upon the general
condition of the female sex, and at the same time on the wife's
position in the family.
[Footnote 229: Vámbéry, _Das Türkenvolk_, p. 268.]
[Footnote 230: Grosse, _op. cit._ p. 159 _sq._]
The _status_ of wives is in various respects connected with the ideas
held about the female sex in general. Woman is commonly looked upon as
a slight, dainty, and relatively feeble creature, destitute of all
nobler qualities.[231] Especially among nations more advanced in
culture she is regarded as intellectually and morally vastly inferior
to man. In Greece, in the historic age, the latter recognised {662} in
her no other end than to minister to his pleasure or to become the
mother of his children. There was also a general notion that she was
naturally more vicious, more addicted to envy, discontent,
evil-speaking, and wantonness, than the man.[232] Plato classes women
together with children and servants,[233] and states generally that in
all the pursuits of mankind the female sex is inferior to the
male.[234] Euripides puts into the mouth of his Medea the remark that
"women are impotent for good, but clever contrivers of all evil."[235]
According to the Vedic singer, again, "woman's mind is hard to direct
aright, and her judgment is small."[236] To the Buddhist, women are of
all the snares which the tempter has spread for men the most
dangerous; in women are embodied all the powers of infatuation which
bind the mind of the world.[237] The Chinese have a saying to the
effect that the best girls are not equal to the worst boys.[238] Islam
pronounces the general depravity of women to be much greater than that
of men.[239] According to Muhammedan tradition, the Prophet said:--"I
have not left any calamity more hurtful to man than woman. . . . O
assembly of women, give alms, although it be of your gold and silver
ornaments; for verily ye are mostly of Hell on the Day of
Resurrection."[240] The Hebrews represented woman as the source of
evil and death on earth:--"Of the woman came the beginning of sin, and
through her we all die."[241] This notion passed into Christianity.
Says St. Paul, "Adam was not deceived, but the woman being deceived
was in the transgression."[242] Tertullian maintains that a woman
should go about in humble garb, mourning and repentant, in order to
expiate that which she derives from Eve, the ignominy {663} of the
first sin, and the odium attaching to her as the cause of human
perdition. "Do you not know," he exclaims, "that you are each an Eve?
The sentence of God on this sex of yours lives in this age; the guilt
must of necessity live too. You are the devil's gateway; you are the
unsealer of that [forbidden] tree; you are the first deserter of the
divine law; you are she who persuaded him whom the devil was not
valiant enough to attack. You destroyed so easily God's image, man. On
account of your desert--that is, death--even the Son of God had to
die."[243] At the Council of Mâcon, towards the end of the sixth
century, a bishop even raised the question whether woman really was a
human being. He answered the question in the negative; but the
majority of the assembly considered it to be proved by Scripture that
woman, in spite of all her defects, yet was a member of the human
race.[244] However, some of the Fathers of the Church were careful to
emphasise that womanhood only belongs to this earthly existence, and
that on the day of resurrection all women will appear in the shape of
sexless beings.[245]
[Footnote 231: Crawley, _The Mystic Rose_, p. 204 _sq._]
[Footnote 232: Dickinson, _op. cit._ p. 159. Döllinger, _op. cit._
ii. 234.]
[Footnote 233: Plato, _Respublica_, iv. 431.]
[Footnote 234: _Ibid._ v. 455.]
[Footnote 235: Euripides, _Medea_, 406 _sqq._]
[Footnote 236: _Rig-Veda_, viii. 33. 17.]
[Footnote 237: Oldenburg, _Buddha_, p. 165. _Cf._ Kern, _Manual of
Indian Buddhism_, p. 69.]
[Footnote 238: Smith, _Proverbs of the Chinese_, p. 265.]
[Footnote 239: Lane, _Arabian Society_, p. 219. _Cf._ Doughty, _Arabia
Deserta_, i. 238.]
[Footnote 240: Lane-Poole, _Speeches of Mohammad_, pp. 161, 163.]
[Footnote 241: _Ecclesiasticus_, xxv. 24.]
[Footnote 242: _1 Timothy_, ii. 14.]
[Footnote 243: Tertullian, _De cultu f[oe]minarum_, i. 1 (Migne,
_Patrologiæ cursus_, i. 1305). See also Laurent, _Études sur
l'histoire de l'humanité_, iv. 113.]
[Footnote 244: Gregory of Tours, _Historia Francorum_, viii. 20.]
[Footnote 245: St. Hilar., _Commentarius in Matthæum_, xxiii. 4
(Migne, _op. cit._ ix. 1045 _sq._). St. Basil, _Homilia in Psalmum
cxiv._ 5 (Migne, _op. cit._ Ser. Graeca, xxix. 488).]
Progress in civilisation has exercised an unfavourable influence on
the position of woman by widening the gulf between the sexes, as the
higher culture was almost exclusively the prerogative of the men.
Moreover, religion, and especially the great religions in the world,
have contributed to the degradation of the female sex by regarding
woman as unclean. During menstruation, or when with child, or at
child-birth, she is considered to be polluted, to be charged with
mysterious baneful energy, which is a danger to all around her.[246]
The cause of this notion seems to lie in the {664} superstitious dread
of those marvellous processes which then take place, and it reaches
its height where there is appearance of blood.[247] On such occasions
woman is shunned not only by men, but in an even higher degree by
gods, for the obvious reason that contact with the unclean woman would
injure or destroy their holiness. Indeed, the danger is considered so
great, that many religions regard women as defiled not only
temporarily, but permanently, and on that ground exclude them from
religious worship.
[Footnote 246: Ploss-Bartels, _Das Weib_, i. 420 _sqq._; ii. 10
_sqq._, 402 _sqq._ Frazer, _Golden Bough_, i. 325 _sqq._; iii. 222
_sqq._ Crawley, _op. cit._ p. 165 _sqq._; Mathew, _Eaglehawk and
Crow_, p. 144 (Australian aborigines), de Rochas, _Nouvelle
Calédonie_, p. 283. Mooney, 'Myths of the Cherokee,' in _Ann. Rep.
Bur. Ethn._ xix. 469. Sumner, in _Jour. Anthr. Inst._ xxxi. 96
(Jakuts). Georgi, _Russia_, iii. 25 _sq._ (Samoyedes), 245, _sq._
(Shamanists of Siberia generally); &c.]
[Footnote 247: Professor Durkheim maintains ('La prohibition de
l'inceste et ses origines,' in _L'année sociologique_, i. especially
p. 48 _sqq._) that the origin of the occult powers attributed to the
feminine organism is to be found in primitive ideas concerning blood,
any kind of blood, not only menstrual, being the object of similar
feelings among savages and barbarians. Mr. Crawley justly remarks
(_op. cit._ p. 212) that there is no flux of blood during pregnancy,
when woman is regularly taboo; that her hair, nail-parings, and
occupations can hardly be avoided from a fear of her blood; and that
there is also the female side of the question to be taken into
account.]
In the Society Islands a woman was forbidden to touch whatever was
presented as an offering to the gods, so as not to pollute it.[248] In
Melanesia women are generally excluded from religious rites.[249]
Among the Shamanists of Siberia women "are interdicted the worship of
the deities, and dare not pass round the common hearth of their
habitations, because fire is sacred to the gods."[250] The women of
the Voguls are generally prohibited from approaching idols or holy
places.[251] A Votyak woman may not be present at the sacrifices made
to the _lud_, or evil spirit.[252] Among the Lapps a woman was not
allowed to touch a _noaid_'s, or wizard's, drum; nor, as a rule, to
take part in sacrificial rites; nor even to look in the direction of a
place where sacrifices were offered.[253] Among the Ainos of Japan,
"though a woman may prepare a divine offering, she may not offer it. . . .
Accordingly, women are never allowed to pray, or to take any part
in any religious {665} exercise."[254] In China women are not allowed
to go and worship in the temples.[255]
[Footnote 248: Ellis, _Polynesian Researches_, i. 129. _Cf._ Wegener,
_Geschichte der christlichen Kirche auf dem Gesellschafts-Archipel_,
p. 181.]
[Footnote 249: Codrington, _Melanesians_, p. 127.]
[Footnote 250: Georgi, _op. cit._ iii. 245. _Cf._ _ibid._ iii. 25.]
[Footnote 251: Abercromby, _Pre- and Proto-historic Finns_, i. 181.]
[Footnote 252: Wichmann, _Tietoja Votjaakkien Mytologiiasta_, p. 17.
See also _ibid._ p. 27.]
[Footnote 253: von Düben, _Lappland och Lapparne_, p. 276. Friis,
_Lappisk Mythologi_, p. 147.]
[Footnote 254: Howard, _op. cit._ p. 195.]
[Footnote 255: _Indo-Chinese Gleaner_, iii. 156.]
In ancient Nicaragua women were held unworthy to perform any duty
in connection with the temples, and were immolated outside the temple
ground of the large sanctuaries, and even their flesh was unclean food
for the high priest, who accordingly ate only the flesh of males.[256]
In Mexico, although some women were employed in the immediate service
of the temples, they were entirely excluded from the office of
sacrificing, and the higher dignities of the priesthood.[257]
[Footnote 256: Bancroft, _op. cit._ iii. 494.]
[Footnote 257: Clavigero, _History of Mexico_, i. 274 _sq._]
According to the sacred books of India, "women are considered to
have no business with the sacred texts";[258] and, being destitute of
the knowledge of Vedic texts, they "are as impure as falsehood itself,
that is a fixed rule."[259] Although, according to a Vedic ordinance
mentioned in the Laws of Manu, husband and wife ought to perform
religious rites together,[260] they have, among the present Hindus, no
religious life in common; the women are not allowed to repeat the
Veda, or to go through the morning and evening Sandhy[=a]
services.[261] If a woman, a dog, or a Sûdra, touch a consecrated
image, its godship is destroyed; the ceremonies of deification must
therefore be performed afresh, whilst a clay image, if thus defiled,
must be thrown away. If women should worship before a consecrated
image, they must keep at a respectful distance from the idol.[262]
[Footnote 258: _Baudhâyana_, i. 5. 11. 7.]
[Footnote 259: _Laws of Manu_, ix. 18. _Cf._ _ibid._ ii. 66; iii. 121.]
[Footnote 260: _Ibid._ ix. 96.]
[Footnote 261: Monier Williams, _Br[=a]hmanism and Hind[=u]ism_,
p. 398.]
[Footnote 262: Ward, _View of the History, &c., of the Hindoos_, ii.
13, 36.]
Islam is chiefly a religion for men. Though Muhammed did not forbid
women to attend public prayers in a mosque, he pronounced it better
for them to pray in private, as the presence of females might inspire
in the men a different kind of devotion from that which is requisite
in a place dedicated to the worship of God.[263] Women are absolutely
excluded from many Muhammedan places of worship, and are frowned upon
if they venture to appear in others, at any rate while men are
there.[264]
[Footnote 263: Lane, _Manners and Customs of the Modern Egyptians_,
p. 94.]
[Footnote 264: Pool, _Studies in Mohammedanism_, p. 39 _sq._]
In Christian Europe, as ascetic ideas advanced, the women sat or
stood in the church apart from the men, and entered by a separate
door.[265] They were excluded from sacred functions. {666} In the
early Church, it is true, there were "deaconesses" and clerical
"widows," but their offices were merely to perform some inferior
services of the church;[266] and even these very modest posts were
open only to virgins or widows of a considerable age.[267] Whilst a
layman could in case of necessity administer baptism, a woman could
never, as it seems, perform such an act.[268] Nor was a woman allowed
to preach publicly in the church, either by the Apostle's rules or
those of succeeding ages;[269] and it was a serious complaint against
certain heretics that they allowed such a practice. "The heretic
women," Tertullian exclaims, "how wanton are they! they who dare to
teach, to dispute, to practise exorcisms, to promise cures, perchance,
also, to baptise!"[270] A Council held at Auxerre at the end of the
sixth century forbade women to receive the Eucharist into their naked
hands;[271] and in various Canons women were enjoined not to come near
to the altar while mass was celebrating.[272] To such an extent was
this opposition against women carried that the Church of the Middle
Ages did not hesitate to provide itself with eunuchs in order to
supply cathedral choirs with the soprano tones inhering by nature in
women alone.[273]
[Footnote 265: Donaldson, in _Contemporary Review_, lvi. 438.]
[Footnote 266: Zscharnack, _Der Dienst der Frau in den ersten
Jahrhunderten der christlichen Kirche_, p. 99 _sqq._ Robinson,
_Ministry of Deaconesses_, _passim_.]
[Footnote 267: _Ibid._ pp. 113, 114, 125.]
[Footnote 268: Bingham, _Works_, iv. 45. Zscharnack, _op. cit._ p. 93.]
[Footnote 269: Bingham, _op. cit._ v. 107 _sqq._ Zscharnack, _op.
cit._ p. 73 _sqq._]
[Footnote 270: Tertullian, _De præscriptionibus adversus hæreticos_,
41 (Migne, _op. cit._ ii. 56). _Cf._ Tertullian, _De baptismo_, 17
(Migne, _op. cit._ i. 1219).]
[Footnote 271: _Concilium Autisiodorense_, A.D. 578, can. 36
(Labbe-Mansi, _Sacrorum Conciliorum collectio_, ix. 915).]
[Footnote 272: _Canones Concilii Laodiceni_, 44 (Labbe-Mansi, _op.
cit._ ii. 581, 589). 'Epitome canonum, quam Hadrianus I. Carolo Magno
obtulit, A.D. DCCLXXIII.,' in Labbe-Mansi, _op. cit._ xii. 868.
_Canons enacted under King Edgar_, 44 (_Ancient Laws and Institutes of
England_, p. 399).]
[Footnote 273: _Cf._ Gage, _Woman, Church and State_, p. 57.]
But the notion that woman is either temporarily or permanently
unclean, that she is a mysterious being charged with supernatural
energy, is not only a cause of her degradation; it also gives her a
secret power over her husband, which may be very considerable. During
my stay among the country people of Morocco, Arabs and Berbers alike,
I was often struck by the superstitious fear with which the women
imbued the men. They are supposed to be much better versed in magic,
and have also splendid opportunities to practise it to the detriment
{667} of their husbands, as they may easily bewitch the food they
prepare for them. For instance, the wife only needs to cut off a
little piece of a donkey's ear and put it into the husband's food.
What happens? By eating that little piece the husband will, in his
relations to his wife, become just like a donkey; he will always
listen to what she says, and the wife will become the ruler of the
house. I also believe that the men on purpose abstain from teaching
the women prayers, so as not to increase their supernatural
power.[274] In the Arabian Desert men are likewise afraid of their
women "with their sly philters and maleficent drinks."[275] In Dahomey
"the husband may not chastise or interfere with his wife whilst the
fetish is 'upon' her, and even at other times the use of the rod might
be dangerous."[276] Women, and especially old ones, are very
frequently regarded as experts in magic. [277] Among the ancient
Arabs,[278] Babylonians,[279] and Peruvians,[280] as in Europe during
the Middle Ages and later, the witch appeared more frequently than the
male sorcerer. So, also, in the Government of Tomsk in Southern
Siberia, native sorceresses are much more numerous than wizards;[281]
and among the Californian Shastika all, or nearly all, of the {668}
shamans are women.[282] The curses of women are greatly feared. In
Morocco it is considered even a greater calamity to be cursed by a
Shereefa, or female descendant of the Prophet, than to be cursed by a
Shereef. According to the Talmud, the anger of a wife destroys the
house;[283] but, on the other hand, it is also through woman that
God's blessings are vouchsafed to it.[284] We read in the Laws of
Manu:--"Women must be honoured and adorned by their fathers, brothers,
husbands, and brothers-in-law, who desire their own welfare. Where
women are honoured, there the gods are pleased; but where they are not
honoured, no sacred rite yields rewards. Where the female relations
live in grief, the family soon wholly perishes; but that family where
they are not unhappy ever prospers. The houses on which female
relations, not being duly honoured, pronounce a curse, perish
completely as if destroyed by magic. Hence men who seek their own
welfare should always honour women on holidays and festivals with
gifts of ornaments, clothes, and dainty food."[285] A Gaelic proverb
says, "A wicked woman will get her wish, though her soul may not see
salvation."[286] Closely connected with the belief in the magic power
of women, and especially, I think, in the great efficacy of their
curses, is the custom according to which a woman may serve as an
asylum.[287] In various tribes of Morocco, especially among the
Berbers and Jbâla, a person who takes refuge with a woman by touching
her is safe from his persecutor. Among the Arabs of the plains this
custom is dying out, probably owing to their subjection under the
Sultan's government; but amongst certain Asiatic Bedouins, the tribe
of Shammar, "a woman can protect any number of persons, or even of
tents."[288] {669} Among the Circassians "a stranger who intrusts
himself to the patronage of a woman, or is able to touch with his
mouth the breast of a wife, is spared and protected as a relation of
the blood, though he were the enemy, nay even the murderer of a
similar relative."[289] The inhabitants of Bareges in Bigorre have, up
to recent times, preserved the old custom of pardoning a criminal who
has sought refuge with a woman.[290]
[Footnote 274: We are told that among the Ainos of Japan women are
forbidden to pray, not only in conformity with ancestral custom, but
because the men are afraid of the prayers of the women in general, and
of their wives in particular. An old man said to Mr. Batchelor:--"The
women as well as the men used to be allowed to worship the gods and
take part in all religious exercises; but our wise honoured ancestors
forbade them to do so, because it was thought they might use their
prayers against the men, and more particularly against their husbands.
We therefore think that it is wiser to keep them from praying"
(Batchelor, _Ainu and their Folk-Lore_, p. 550 _sq._ Howard, _op.
cit._ p. 195). Among the Santals the men are careful not to divulge
the names of their household gods to their wives, for fear lest the
latter should acquire undue influence with the gods, become witches,
and "eat up the family with impunity when the protection of its gods
has been withdrawn" (Risley, _Tribes and Castes of Bengal_,
_Ethnographic Glossary_, ii. 232).]
[Footnote 275: Doughty, _Arabia Deserta_, ii. 384.]
[Footnote 276: Burton, _Mission to Gelele_, ii. 155.]
[Footnote 277: Ploss-Bartels, _op. cit._ ii. 664, 666 _sqq._ Mason,
_op. cit._ p. 255 _sqq._ Landtman, _Origin of Priesthood_, p. 198
_sq._ Angas, _Savage Life and Scenes in Australia and New Zealand_, i.
317 (Maoris). Connolly, 'Social Life in Fanti-land,' in _Jour. Anthr.
Inst._ xxvi. 150.]
[Footnote 278: Wellhausen, _Reste arabischen Heidentums_, p. 159.]
[Footnote 279: Jastrow, _Religion of Babylonia_, pp. 267, 342.]
[Footnote 280: Garcilasso de la Vega, _First Part of the Royal
Commentaries of the Yncas_, i. 60.]
[Footnote 281: Kostroff, quoted by Landtman, _op. cit._ p. 199.]
[Footnote 282: Powers, _Tribes of California_, p. 246.]
[Footnote 283: _Sota_, fol. 3 B, quoted by Katz, _Der wahre
Talmudjude_, p. 110 _sq._]
[Footnote 284: _Baba Meziah_, fol. 59 A, quoted _ibid._ p. 112.
Deutsch, _Literary Remains_, p. 56.]
[Footnote 285: _Laws of Manu_, iii. 55 _sqq._]
[Footnote 286: Carmichael, _Carmina Gadelica_, ii. 317.]
[Footnote 287: For some instances of this custom see Andree, 'Die
Asyle,' in _Globus_, xxxviii. 302; Bachofen, _Das Mutterrecht_, p. 420
(Basques).]
[Footnote 288: Layard, _Discoveries in the Ruins of Nineveh and
Babylon_, p. 318.]
[Footnote 289: Pallas, _Travels through the Southern Provinces of the
Russian Empire_, i. 404.]
[Footnote 290: Fischer, _Bergreisen_, i. 60.]
Yet another factor remains to be mentioned as a cause of the
subjection in which married women are held by many peoples of culture.
We have noticed that in archaic civilisation the father's power over
his children is extreme, that the State whilst weakening or destroying
the clan-tie strengthened the family-tie, and that the father was
invested with some part of the power which formerly belonged to the
clan.[291] This process must also have affected the _status_ of
married women. The husband's power over his wife is closely connected
with the father's power over his daughter; for, by giving her in
marriage, he generally transfers to the husband the authority which he
himself previously possessed over her as a paternal right.
[Footnote 291: _Supra_, ch. xxv. especially p. 627 _sq._]
In modern civilisation, on the other hand, we find, hand in hand with
the decrease of the father's power, a decrease of the husband's
authority over his wife. But the causes of the gradual emancipation of
married women are manifold. Life has become more complicated; the
occupations of women have become much more extensive; their influence
has expanded correspondingly, from the home and household to public
life. Their widened interests have interfered with that submissiveness
which is an original characteristic of their sex. Their greater
education has made them more respected, and has increased their
independence. Finally, the decline of the influence exercised by
antiquated religious ideas is removing what has probably been the most
persistent cause of the wife's subjection to her husband's
rule.
CHAPTER XXVII
SLAVERY
SLAVERY is essentially an industrial institution, which implies
compulsory labour beyond the limits of family relations. The master
has a right to avail himself of the working power of his slave,
without previous agreement on the part of the latter. This I take to
be the essence of slavery; but connected with such a right there are
others which hardly admit of a strict definition, or which belong to
the master in some cases though not in all. He is entitled to claim
obedience and to enforce this claim with more or less severity, but
his authority is not necessarily absolute, and the restrictions
imposed on it are not everywhere the same. According to a common
definition of slavery, the slave is the property of his master,[1] but
this definition is hardly accurate. It is true that even in the case
of inanimate property the notion of ownership does not involve that
the owner of a thing is always entitled to do with it whatever he
likes; a person may own a thing and yet be prohibited by law from
destroying it. But it seems that the owner's right over his property,
even when not absolute, is at all events exclusive, that is, that
nobody but the owner has a right to the disposal of it. Now the
master's right of disposing of his slave is not necessarily {671}
exclusive; custom or law may grant the latter a certain amount of
liberty, and in such a case his condition differs essentially from
that of a piece of property. The chief characteristic of slavery is
the compulsory nature of the slave's relation to his master. Voluntary
slavery, as when a person sells himself as a slave, is only an
imitation of slavery true and proper; the person who gives up his
liberty confers upon another, by contract, either for a limited period
or for ever, the same rights over himself as a master possesses over
his slave. If slavery proper could be based upon a contract between
the parties concerned, I fail to see how to distinguish between a
servant and a slave.
[Footnote 1: Nieboer, _Slavery as an Industrial System_, p. 4 _sqq._
Dr. Nieboer himself defines slavery as "the fact, that one man is the
property or possession of another beyond the limits of the family
proper" (_ibid._ p. 29).]
Dr. Nieboer has recently with much minuteness examined the
distribution of slavery and its causes among savage races. It appears
from his work that slavery is unknown in Australia, and in Oceania
restricted to certain islands. In the Malay Archipelago, on the other
hand, it prevails very extensively. Among the aboriginal tribes of
India and the Indo-Chinese Peninsula it is fairly common, whereas no
certain traces of it are found among the lower races of Central Asia
and Siberia, with the exception of the Kamchadales. In North America
it exists along the Pacific Coast from Behring Strait to the northern
boundary of California, but beyond this district it seems to be
unknown. In Central and South America there are at any rate several
scattered cases of it, and if our knowledge of the South American
Indians were less fragmentary, many other instances might perhaps be
added. In savage Africa there are only one or two districts where no
certain cases of slavery are encountered, whilst large agglomerations
of slave-keeping tribes occur on the Coast of Guinea and in the
district formed by Lower Guinea and the territories bordering the
Congo.[2]
[Footnote 2: Nieboer, _op. cit._ p. 47 _sqq._]
Slaves are kept only where there is employment for them, and where the
circumstances are otherwise favourable to the growth of slavery. Its
existence or non-existence {672} in a tribe largely depends on the
manner in which that tribe lives. Among hunters it hardly occurs at
all. Mr. Spencer justly observes that, "in the absence of industrial
activity, slaves are almost useless; and, indeed, where game is
scarce, are not worth their food."[3] Moreover, they would have to be
procured from foreign tribes, and to prevent such slaves from running
away would be almost impossible for hunters who roam over vast tracts
of land in pursuit of game, especially if the slaves also were engaged
in hunting. For a small community of hunters--and their communities
generally are small[4]--it might even be dangerous to keep foreign
slaves in their midst.[5] Among fishing tribes, on the other hand,
slavery is much more common, attaining a special importance among
those who live on or near the Pacific Coast of North-Western America.
These tribes have an abundance of food, they have fixed habitations,
they live in comparatively large groups, and trade and industry,
property and wealth, are well developed among them. In consequence,
they find the services of slaves useful, and, at the same time, the
slaves have little chance of making their escape.[6]
[Footnote 3: Spencer, _Principles of Sociology_, iii. 459.]
[Footnote 4: Westermarck, _History of Human Marriage_, p. 43 _sqq._
Hildebrand, _Recht und Sitte_, p. 1 _sqq._]
[Footnote 5: Nieboer, _op. cit._, p. 191 _sqq._]
[Footnote 6: _Ibid._ p. 199 _sqq._]
Of the pastoral tribes referred to in Dr. Nieboer's list only one half
keep slaves, and among some of these slave-keeping is said to be a
mere luxury. To pastoral peoples, as such, slave labour is of little
moment. Among them subsistence depends much more on capital than on
labour, and for the small amount of work which is required free
labourers are easily procured. As Dr. Nieboer observes, "among people
who live upon the produce of their cattle, a man who owns no cattle,
_i.e._ no capital, has no means of subsistence. Accordingly, among
pastoral tribes we find rich and poor men; and the poor often offer
themselves as labourers to the rich."[7] Pastoral peoples have thus no
strong motives for making slaves, but at the same {673} time "there
are no causes preventing them from keeping slaves. These tribes are,
so to speak, in a state of equilibrium; a small additional cause on
either side turns the balance. One such additional cause is the
slave-trade; another is the neighbourhood of inferior races." All
those pastoral peoples who keep slaves live in districts where an
extensive slave-trade has for a long time been carried on. The slaves
are often purchased from slave-traders, and in several cases they
belong to an inferior race.[8]
[Footnote 7: See also Hildebrand, _op. cit._ p. 38 _sq._]
[Footnote 8: Nieboer, _op. cit._ p. 261 _sqq._]
Among agricultural peoples slavery prevails more extensively; further,
it is more common among such tribes as subsist chiefly by agriculture
than among incipient agriculturists, who still depend on hunting or
fishing for a large portion of their food. In primitive agricultural
communities nobody voluntarily serves another, because subsistence is
independent of capital and easy to procure. "All freemen in new
countries," says Mr. Bagehot, "must be pretty equal; every one has
labour, and every one has land; capital, at least in agricultural
countries (for pastoral countries are very different), is of little
use; it cannot hire labour; the labourers go and work for
themselves."[9] Hence in such countries, if a man wants another to
work for him, he must compel him to do it--that is, he must make him
his slave. This holds true of most savage countries, namely, of all
those in which there is much more fertile land than is required to be
cultivated for the support of the actual population; but it does not
hold true of all. Where every piece of land fit for cultivation has
been appropriated, a man who owns no land cannot earn his subsistence
independently of a landlord; hence free labourers are available,
slaves are not wanted, and slavery is not likely to exist. And even
where there are no poor persons, but everybody has a share in the
resources of the country, the use of slaves cannot be great, since a
man who owns a limited capital, or a limited quantity of land, can
only employ a limited number of labourers. {674} For instance, the
absence of slavery in many Oceanic islands may be accounted for by the
fact that all land had been appropriated, which led to a state of
things inconsistent with slavery as a social system.[10]
[Footnote 9: Bagehot, _Physics and Politics_, p. 72.]
[Footnote 10: Nieboer, _op. cit._ pp. 294-347, 420 _sq._]
These are the main conclusions at which Dr. Nieboer has arrived by
means of much admirable and painstaking research. Most of them, I
think, are undoubtedly correct; yet it seems to me that the influence
of economic conditions upon the institution of slavery has perhaps
been emphasised too much at the cost of other factors. The prevalence
of slavery in a savage tribe and the extent to which it is practised
must also depend upon the ability of the tribe to procure slaves from
foreign communities and upon its willingness to allow its own members
to be kept as slaves within the tribe. It may be very useful for a
group of savages to have a certain number of slaves, and yet they may
not have them, for the reason that no slaves are to be had. It is only
in extraordinary cases that a person is allowed to enslave a member of
his own community. Intra-tribal slavery is a question not only of
economic but of moral concern, whilst extra-tribal slavery originally
depends upon success in war.
We have reason to believe that the earliest source of slavery was war
or conquest, and that slavery in many cases was a substitution for
putting prisoners of war to death.[11] Savages, who have little mercy
on their enemies, naturally make no scruple in reducing them to
slavery whenever they find their advantage in doing so. Among existing
savages, in fact, prisoners of war are very frequently enslaved.[12]
They and their descendants, together {675} with persons kidnapped or
purchased from foreign tribes, seem generally to form by far the
majority of the slave population in uncivilised countries.
[Footnote 11: _Cf._ Millar, _Origin of the Distinction of Ranks_, p.
245; Jacob, _Historical Inquiry into the Production and Consumption of
the Precious Metals_, i. 136; Buckle, _Miscellaneous and Posthumous
Works_, iii. 413; Comte, _Cours de philosophie positive_, v. 186
_sqq._; Cibrario, _Della schiavitù e del servaggio_, i. 16.]
[Footnote 12: Rink, _Eskimo Tribes_, p. 28 (Western Eskimo). Petroff,
'Report on Alaska,' in _Tenth Census of the United States_, pp. 152
(Aleuts), 165 (Thlinkets). Richardson, _Arctic Searching Expedition_,
i. 412 (Kutchin). Gibbs, 'Tribes of Western Washington and
Northwestern Oregon,' in _Contributions to North American Ethnology_,
i. 188. von Martius _Beiträge zur Ethnographie Amerika's_, i. 232
(Guaycurus), 298 (Carajás). Azara, _Voyages dans l'Amérique
métridionale_, ii. 109 _sq._ (Mbayas). Lewin, _Hill Tracts of
Chittagong_, p. 35. _Idem_, _Wild Races of South-Eastern India_, p.
194 (Toungtha). Modigliani, _Viaggio a Nías_, p. 521. Kohler, 'Recht
der Papuas auf Neu-Guinea,' in _Zeitschr. f. vergl. Rechtswiss._ vii.
370. Williams and Calvert, _Fiji_, p. 25. Polack, _Manners and Customs
of the New Zealanders_, ii. 52; Hale, _U.S. Exploring Expedition. Vol.
VI.--Ethnography and Philology_, p. 33 (New Zealanders). Ellis,
_History of Madagascar_, i. 192. Andersson, _Lake Ngami_, p. 231;
Kohler, in _Zeitschr. f. vergl. Rechtswiss._ xiv. 311 (Herero).
Velten, _Sitten und Gebräuche der Suaheli_, p. 305. Baumann,
_Usambara_, p. 141 (Wabondei). Felkin, 'Notes on the Waganda Tribe,'
in _Proceed. Roy. Soc. Edinburgh_, xiii. 746. Mungo Park, _Travels in
the Interior of Africa_, p. 19 (Mandingoes). Rowley, _Africa
Unveiled_, p. 176. Tuckey, _Expedition to Explore the River Zaire_, p.
367 (Negroes of Congo). Sarbah, _Fanti Customary Laws_, p. 6. Burton,
_Abeokuta_, i. 301. Ellis, _Tshi-speaking Peoples of the Gold Coast_,
p. 289. Munzinger, _Ostafrikanische Studien_, p. 309 _sq._ (Beni
Amer). Mademba, in Steinmetz, _Rechtsverhältnisse von eingeborenen
Völkern in Afrika und Ozeanien_, p. 83 (natives of the Sansanding
States). Nicole, _ibid._ p. 118 _sq._ (Diakité-Sarracolese). Tellier,
_ibid._ pp. 168, 171 (Kreis Kita of the French Soudan). Beverley,
_ibid._ p. 213 (Wagogo). Lang, _ibid._ p. 241 (Washambala).
Desoignies, _ibid._ p. 278 (Msalala). Nieboer _op. cit._ pp. 49, 52,
73-76, 78, 100.]
Whilst little regard is paid to the liberty of strangers, custom
everywhere, as a rule, forbids the enslaving of tribesmen. Yet
sometimes a father's power over his children,[13] as also a husband's
power over his wife,[14] involves the right of selling them as slaves;
and among various peoples a person may be reduced to slavery for
committing a crime,[15] or for insolvency.[16] Among the tribes of
Western {676} Washington and North-Western Oregon, if an Indian has
wronged another and failed to make compensation, he may be taken as a
slave.[17] The Papuans of Dorey had a law according to which an
incendiary with his family became the slave of the late proprietor of
the burned house.[18] Among the Line Islanders of Micronesia, if a man
of low class stole some food from a person belonging to the "gentry,"
he became the slave of the latter and lost all his property.[19]
Sometimes a man is induced by great poverty to sell himself as a
slave.[20] But most intra-tribal slaves are born unfree, being the
offspring of parents one or both of whom are slaves.[21]
[Footnote 13: _Supra_, p. 599.]
[Footnote 14: _Supra_, p. 629 _sq._]
[Footnote 15: Butler, _Travels and Adventures in Assam_, p. 94
(Kukis). Mason, 'Dwellings, &c., of the Karens,' in _Jour. Asiatic
Soc. Bengal_, xxxvii. pt. ii. p. 146 _sq._; Smeaton, _Loyal Karens of
Burma_, p. 86. Wilken, 'Het strafrecht bij de volken van het maleische
ras,' in _Bijdragen tot de taal- land- en volkenkunde van
Nederlandsch-Indië_, 1883, Land- en volkenkunde, p. 108 _sq._
Junghuhn, _Die Battalander auf Sumatra_, ii. 145 _sq._ (Bataks).
Raffles, _History of Java_, ii. p. ccxxxv. (people of Bali). Forbes,
_A Naturalist's Wanderings in the Eastern Archipelago_, p. 320 (people
of Timor-laut). von Rosenberg, _Der malayische Archipel_, p. 166
(Niase). Hickson, _A Naturalist in North Celebes_, p. 194 (Sangirese).
Post, _Afrikanische Jurisprudenz_, ii. 87. Paulitschke, _Ethnographie
Nordost-Afrikas_, p. 261. Munzinger, _Ostafrikanische Studien_, p. 244
_sq._ (Marca). Petherick, _Travels in Central Africa_, ii. 3 (Shilluk
of the White Nile). Bowdich, _Mission to Ashantee_, p. 258 n. *
(Fantis). Hübbe-Schleiden, _Ethiopien_, p. 152 (Mpongwe). Burton,
_Abeokuta_, i. 301. Tuckey, _op. cit._ p. 367 (Negroes of Congo).
Mungo Park, _op. cit._ p. 19 (Mandingoes). Tellier, in Steinmetz,
_Rechtsverhältnisse_, p. 171 (Kreis Kita of the French Soudan). Lang,
_ibid._ p. 241 (Washambala). Dale, 'Customs of the Natives inhabiting
the Bondei Country,' in _Jour. Anthr. Inst._ xxv. 230, Ellis, _History
of Madagascar_, i. 193. Velten, _op. cit._ p. 305 _sq._ (Waswahili).]
[Footnote 16: Gibbs, _loc. cit._ p. 188 (Indians of Western Washington
and North-western Oregon), Lewin, _Hill Tracts of Chittagong_, p. 34.
_Idem_, _Wild Races of South-Eastern India_, pp. 194 (Khyoungtha), 235
(Mrús). Mason, 'Religion, &c., of the Karens,' in _Jour. Asiatic Soc.
Bengal_, xxxiv. pt. ii. 216. Blumentritt, 'Die Sitten und Bräuche der
alten Tagalen,' in _Zeitschr. f. Ethnol._ xxv. 13 _sqq._ Lala,
_Philippine Islands_, p. 111 (natives of Sulu). Low, _Sarawak_, p.
301. Bock, _Head-Hunters of Borneo_, p. 210 (Dyak tribes). Junghuhn,
_op. cit._ ii. 151 _sq._ Raffles, _op. cit._ i. 353 n. (Javanese); ii.
p. ccxxxv. (people of Bali). Nieboer, _op. cit._ pp. 110, 111, 114,
119 _sq._ (various peoples in the Malay Archipelago). Munzinger,
_Ostafrikanische Studien_, pp. 207 (Takue), 245 (Marea). Kingsley,
_West African Studies_, p. 370, Hübbe-Schleiden, _op. cit._ p. 152
(Mpongwe). Burton, _Abeokuta_, i. 301. Mungo Park, _op. cit._ p. 19
(Mandingoes). Dale, in _Jour. Anthr. Inst._ xxv. 230 (Wabondei).
Baskerville, in Steinmetz, _Rechtsverhältnisse_, p. 193 _sq._
(Waganda), Lang, _ibid._ p. 240 (Washambala). Walter, _ibid._ p. 381
(Natives of Nossi-Bé and Mayotte, Madagascar). Post, _Afrikanische
Jurisprudenz_, i. 90 _sq._ _Idem_, _Grundriss der ethnologischen
Jurisprudenz_, i. 363 _sqq._; ii. 564 _sqq._ Kohler, _Shakespeare vor
dem Forum der Jurisprudenz_, p. 14 _sq._]
[Footnote 17: Gibbs, _loc. cit._ p. 188.]
[Footnote 18: Earl, _Papuans_, p. 83.]
[Footnote 19: Tutuila, in _Jour. Polynesian Soc._ i. 268 _sq._]
[Footnote 20: Azara, _op. cit._ ii. 109 (Mbayas). Hale, _op. cit._ p.
96 (Kingsmill Islanders). Burton, _Abeokuta_, i. 301. Andersson, _Lake
Ngami_, p. 231 (Herero). Ellis, _History of Madagascar_, i. 192 _sq._]
[Footnote 21: _Cf._ Post, _Afrikanische Jurisprudenz_, i. 89 _sq._;
Mademba, in Steinmetz, _Rechtsverhältnisse_, p. 83 (natives of the
Sansanding States); Nicole, _ibid._ p. 119 (Diakité-Sarracolese);
Baskerville, _ibid._ p. 194 (Waganda); Desoignies, _ibid._ p. 278
(Malala); Dale, in _Jour. Anthr. Inst._ xxv. 230 (Wabondei); Ellis,
_History of Madagascar_, i. 193.]
In descriptions of slave-holding savages it is often said that a
master has absolute power over his slave. But even in such instances,
when details are scrutinised, it frequently appears that custom or
public opinion does not allow a person to treat his slave just as he
pleases. We have noticed above that in many cases the master is
expressly denied the right of killing him at his own discretion.[22]
More commonly than one would imagine the master has not {677} even an
unlimited right to sell his slave. Among some peoples he may sell at
will such slaves only as have been captured in war or purchased, not
such as have been born in the house.[23] In several instances a slave,
and especially a domestic slave, cannot be sold unless he has been
guilty of some crime or misdemeanour.[24] Among the Banaka and Bapuku
in the Cameroons the master may chastise or send away a slave who has
behaved badly, but is not allowed to sell him.[25] There are,
moreover, instances in which the master is entitled not to all the
services of his slave, but only to a limited portion of them. In some
parts of Africa the slave is obliged to work for his master on certain
days of the week or a certain number of hours, but has the rest of his
time free.[26] In the highlands of Palembang, Sumatra, a slave may
carry on trade and hire himself out as a day labourer on his own
behalf, and when he works in the field one-half of his harvesting
belongs to him and the other half to his master.[27] Where the slave
is allowed to possess property of his own he may in some cases,[28]
though not in all,[29] buy his freedom; and debtor-slaves are as a
rule entitled to regain their liberty by paying off the debt.[30] Many
peoples even permit a dissatisfied slave to change his master. Among
the Washambala, if a person does not fulfil his duties towards any of
his slaves, the latter has a right to complain of him to the chief,
and should the accusation prove true the chief buys the slave of his
master for an ox and two cows, and keeps {678} him for himself.[31]
Among other peoples a slave, in order to get a new master, has only to
cause a slight damage to somebody's property, or to commit some other
trifling offence, in which case he must be given up to the person he
"injured."[32] It is astonishing to notice how readily, in many
African countries, slaves are allowed by custom to rid themselves of
tyrannical or neglectful masters.[33] The Barea and Bazes have a law
according to which a slave becomes free by simply leaving his
lord.[34] Among the Manipuris, in Further India, if a slave flies from
one master and selects for himself another, it is presumed that he has
been badly treated by the first one, and the fugitive can consequently
not be reclaimed.[35]
[Footnote 22: _Supra_, p. 422 _sq._]
[Footnote 23: Post, _Afrikanische Jurisprudenz_, i. 95 _sqq._]
[Footnote 24: _Ibid._ i. 96 _sq._ Tellier, in Steinmetz,
_Rechtsverhältnisse_, p. 169 (Kreis Kita). Lang, _ibid._ p. 241
(Washambala).]
[Footnote 25: Steinmetz, _Rechtsvershältnisse_, p. 43.]
[Footnote 26: Post, _Afrikanische Jurisprudenz_, i. 101. Mademba, in
Steinmetz, _Rechtsverhältnisse_, p. 83 (natives of the Sansanding
States). Nicole, _ibid._ p. 118 (Diakité-Sarracolese). Tellier,
_ibid._ p. 169 _sqq._ (Kreis Kita).]
[Footnote 27: _Glimpses of the Eastern Archipelago_, p. 106.]
[Footnote 28: Post, _Afrikanische Jurisprudenz_, i. 111 _sq._]
[Footnote 29: _Ibid._ i. 111 _sq._ Tellier, in Steinmetz,
_Rechtsverhältnisse_, p. 170 (Kreis Kita), Senfft, _ibid._ p. 442
(Marshall Islanders).]
[Footnote 30: Post, _Grundriss der ethnologischen Jurisprudenz_, i.
366. Nieboer, _op. cit._ pp. 38, 432. Nicole, in Steinmetz,
_Rechtsverhältnisse_, p. 118 (Diakité-Sarracolese). Baskervilie,
_ibid._ p. 194 (Waganda). Lang, _ibid._ p. 240 _sqq._ (Washambala).]
[Footnote 31: Lang, in Steinmetz, _Rechtsverhältnisse_, p. 242.]
[Footnote 32: Post, _Afrikanische Jurisprudenz_, i. 102 _sqq._ _Idem_,
_Grundriss der ethnologischen Jurisprudenz_, i. 377. Steinmetz,
_Rechtsverhältnisse_, p. 168. Pechuel-Loesche, 'Aus dem Leben der
Loango-Neger,' in _Globus_, xxxii. 238.]
[Footnote 33: See also Post, _Afrikanische Jurisprudenz_, i. 102
_sqq._; Munzinger, _Ostafrikanische Studien_, p. 309 (Beni Amer);
_Idem_, _Die Sitten und das Recht der Bogos_, p. 43.]
[Footnote 34: Munzinger, _Ostafrikanische Studien_, p. 484.]
[Footnote 35: Dalton, _Descriptive Ethnology of Bengal_, p. 51.]
A slave among the lower races can thus by no means be described as a
being destitute of all rights. As a rule, it seems, he is treated
kindly, very commonly as an inferior member of the family.[36] Among
the Aleuts a slave suffering want would bring dishonour upon his
master.[37] The South American Mbayás, says Azara, {679} "aiment
extraordinairement tous leurs esclaves; jamais ils ne leur commandent
d'un ton imperieux; jamais ils ne les reprimandent, ni ne les
châtient, ni ne les vendent, quand même ce seraient des prisonniers de
guerre. . . . Quel contraste avec le traitement que les européens font
éprouver aux africains!"[38] In West Africa "the condition of slavery
is not regarded as degrading, and a slave is not considered an
inferior being."[39] On the Gold Coast, with the exception of the
unpleasant liability of being sent at any moment to serve his master
in the other world, the lot of a slave is not generally one of
hardship, but is on the whole far better than that of the agricultural
labourer in England. The slave is generally considered a member of the
family, and if native-born succeeds in some cases in default of an
heir to the property of his master.[40] In the Yoruba country it was
quite common for a slave to be named by his master in his last will to
be the factor or general manager of the estate, and to be left to take
care of the entire establishment.[41] Among the Kreis Kita, of the
French Soudan, the master calls his domestic slaves his sons, and they
call him their father; nay, the natural guardian of an heir who is not
yet of age is not his mother, but the eldest domestic slave of the
household.[42] Speaking of the natives in the region of Lake Nyassa,
Mr. Macdonald remarks that most Africans like to see their slaves
become rich; "Are they not," they say, "our own children?"[43] Among
the Wabondei, "if a man buys a slave, he calls his own children and
says, 'Behold your brother.' The slave is treated as a son, and is
neither beaten nor tied."[44] In Madagascar the slaves "are kindly
treated by their masters, they are considered as a kind of inferior
members of the family to whom they belong, and many of the slaves have
a {680} practical freedom of action to which the free population are
quite strangers."[45] The slavery prevalent among the native races of
the Malay Archipelago is generally mild. In Borneo, says Mr. Boyle,
"we always found a difficulty in distinguishing the servile portion of
a household from the freeborn population, and the honours and
distinctions open to the latter class are likewise accessible to the
former."[46] The slave-debtors of the Dyaks are "just as happy in this
state--living in their creditors' houses and working on their
farms--as if perfectly free, enjoying all the liberty of their
masters."[47] Among the Chittagong Hill tribes the debtor-slaves were
treated as members of the creditor's family, and were never exposed to
harsh usage.[48] Among the Káfirs of the Hindu-Kush slaves are
sometimes chosen among the annually elected magistracy, and Sir Scott
Robertson knew of a case in which a master and his slave went through
the ceremony of brotherhood together.[49]
[Footnote 36: _Ibid._ pp. 51 (Manipuris), 58 (Garos). Lewin, _Hill
Tracts of Chittagong_, p. 34 _sq._ _Idem_, _Wild Races of
South-Eastern India_, p. 90 (Chittagong Hill tribes). Colquhoun,
_Amongst the Shans_, p. 267. Mouhot, _Travels in the Central Parts of
Indo-China_, i. 250 (Stiêns). Riedel, _De sluik- en kroesharige rassen
tusschen Selebes en Papua_, pp. 194 (Watubela Islanders), 293 (people
of Tenimber and Timor-laut), 434 (people of Wetter). Earl, _op. cit._
p. 81 (Papuans of Dorey). New, _Life, Wanderings, and Labours in
Eastern Africa_, p. 128 (Wanika). Chanler, _Through Jungle and
Desert_, p. 404 (Eastern Africans). Baumann, _Usambara_, p. 141
(Wabondei). Felkin, in _Proceed. Roy. Soc. Edinburgh_, xiii. 746;
Baskerville, in Steinmetz, _Rechtsverhältnisse_, p. 194 (Waganda).
_Ibid._ p. 43 (Banaka and Bapuku). Mademba, _ibid._ p. 84 (natives of
the Sansanding States). Nicole, _ibid._ p. 118 (Diakité-Sarracolese).
Lang, _ibid._ p. 242 (Washambala). Desoignies, _ibid._ p. 278
(Msalala). Kraft, _ibid._ p. 291 (Wapokomo). Reade, _Savage Africa_,
p. 582. Rowley, _Africa Unveiled_, pp. 174, 176. Steinmetz,
_Ethnologische Studien zur ersten Entwicklung der Strafe_, i. 313.
Nieboer, _op. cit._ pp. 52, 78, 79, 81, 141-143, 305, 439, _sq._]
[Footnote 37: Veniaminof, quoted by Petroff, _loc. cit._ p. 152.]
[Footnote 38: Azara, _op. cit._ ii. 110.]
[Footnote 39: Ellis, _E[(w]e-speaking Peoples of the Slave Coast_,
p. 219. See also Wilson, _Western Africa_, pp. 179, 180, 271 _sq._]
[Footnote 40: Ellis, _Tshi-speaking Peoples of the Gold Coast_, p. 290.]
[Footnote 41: MacGregor, 'Lagos, Abeokuta, and the Alake,' in _Jour.
African Soc._ 1904, p. 473.]
[Footnote 42: Tellier, in Steinmetz, _Rechtsverhältnisse_, p. 169.]
[Footnote 43: Macdonald, in _Jour. Anthr. Inst._ xxii. 102.]
[Footnote 44: Dale, _ibid._ xxv. 230.]
[Footnote 45: Sibree, _The Great African Island_, p. 181. See also
Little, _Madagascar_, p. 77; Ellis, _History of Madagascar_, i. 196.]
[Footnote 46: Boyle, _Adventures among the Dyaks of Borneo_, p. 284.]
[Footnote 47: Low, _Sarawak_, p. 302. See also St. John, _Life in the
Forests of the Far East_, i. 83; Bock, _Head-Hunters of Borneo_, p.
210; Kükenthal, _Ergebnisse einer zoologischen Forschungsreise in den
Molukken und Borneo_, i. 276 (Kyans); Crawford, _History of the Indian
Archipelago_, i. 52; Raffles, _op. cit._ i. 352; Marsden, _History of
Sumatra_, p. 253; Junghuhn, _op. cit._ ii. 150 (Bataks).]
[Footnote 48: Lewin, _Hill Tracts of Chittagong_, p. 34.]
[Footnote 49: Scott Robertson, _Káfirs of the Hindu-Kush_, p. 100 _sq._]
It appears that intra-tribal slaves, especially such as are born in
the house, are generally treated better than extra-tribal or purchased
slaves,[50] and that slaves are most oppressed by their masters when
they belong to a different race.[51] We are told that among the South
American Guaycurus the two causes of slavery, captivity and birth,
imply a certain difference of caste, which is maintained {681} with
great rigour.[52] Mungo Park observes that in Africa the domestic
slaves or such as are born in their master's house are treated more
leniently than those who are purchased.[53] "I was told," he says,
"that the Mandingo master can neither deprive his slave of life, nor
sell him to a stranger, without first calling a palaver on his
conduct, or, in other words, bringing him to a public trial; but this
degree of protection is extended only to the native or domestic
slave."[54] Tuckey makes exactly the same observation as regards the
natives of Congo.[55] On the Gold Coast slaves are of three
kinds--native-born, imported, and prisoners of war; and "a distinction
is always made between the first and the two latter, who are treated
with far less consideration."[56] Speaking of the Central African
tribes generally, Mr. Rowley states that slavery assumes a much
severer character among the pastoral than among the agricultural
tribes, because the slaves of the former are for the most part
captives of war, whereas those of the latter have rarely been acquired
by conquest but mostly by inheritance. Among the agricultural tribes,
he adds, persons who are in bondage are not called slaves but
children, and those to whom they are in bondage are not called masters
but fathers.[57] Among the Káfirs of the Hindu-Kush all slaves "are
not of the same social position, for the house slave is said to be
much higher in grade than the artisan slave. . . . The domestic slaves
live with their masters."[58]
[Footnote 50: Munzinger, _Ostafrikanische Studien_, p. 484 _sq._
(Barea and Kunáma). New, _op. cit._ p. 56 (Waswahili). Baumann,
_Usambara_, p. 61 (natives of the Tanga Coast). Sarbah, _op. cit._ p.
6 _sq._ (Fantis). Nicole, in Steinmetz, _Rechtsverhältnisse_ p. 118
_sq._ (Diakité-Sarracolese). Tellier, _ibid._ p. 169 (Kreis Kita).
Beverley, _ibid._ p. 213 (Wagogo). Sibree, _op. cit._ p. 256 _sq._
(natives of Madagascar). Post, _Afrikanische Jurisprudenz_, i. 88 _sq._]
[Footnote 51: Mademba, in Steinmetz, _Rechtsverhältnisse_, p. 84
(natives of the Sansanding States). Sibree, _op. cit._ p. 181 (natives
of Madagascar).]
[Footnote 52: von Spix and von Martius, _Travels in Brazil_, ii. 74.]
[Footnote 53: Mungo Park, _op. cit._ p. 262.]
[Footnote 54: _Ibid._ p. 19.]
[Footnote 55: Tuckey, _op. cit._ p. 367.]
[Footnote 56: Ellis, _Tshi-speaking Peoples_, p. 289.]
[Footnote 57: Rowley, _Africa Unveiled_, p. 174 _sqq._]
[Footnote 58: Scott Robertson, _op. cit._ p. 99 _sq._]
Among the nations of archaic civilisation slavery presents essentially
the same characteristics as among the lower races. In ancient Mexico
there were various classes of slaves--prisoners of war, criminals
condemned to lose their freedom, children sold by their parents, and
persons who had sold themselves. The relations between master and
slave are represented as friendly.[59] "Slavery {682} in Mexico." says
Mr. Bancroft, "was, according to all accounts, a moderate subjection,
consisting merely of an obligation to render personal service, nor
could that be exacted without allowing the slave a certain amount of
time to labour for his own advantage."[60] Masters could not sell
their slaves without their consent, unless they were slaves with a
collar, that is, runaway, rebellious, or vicious slaves, who in spite
of two or three warnings did not mend their behaviour.[61] Their
children were invariably born free;[62] and when their masters died
they generally became free themselves.[63]
[Footnote 59: Bancroft, _Native Races of the Pacific States_, ii. 217,
221.]
[Footnote 60: Bancroft, _Native Races of the Pacific States_, ii. 220
_sq._]
[Footnote 61: Clavigero, _History of Mexico_, i. 360.]
[Footnote 62: Bancroft, _op. cit._ ii. 221.]
[Footnote 63: Clavigero, _op. cit._ i. 360.]
In China the slave class is composed of prisoners of war, of persons
who sell themselves or are sold by others, and of the children of
slaves;[64] and in former days public slavery was a punishment for
crime.[65] It is true that the penal code forbids the sale of free
persons; according to the letter of the text even the father of a
family must not sell his children,[66] and persons who voluntarily
submit themselves to be sold are punished by law.[67] But these
regulations are frequently transgressed; in times of distress children
are often sold by their parents, and the kidnapping of children is an
even more common source from which the supply of slaves is kept
up.[68] The master's power over his slave is not quite absolute,[69]
but it seems to be fully as great as the father's power over his
child.[70] A master who falsely accuses his slave suffers no
punishment for it; on the other hand, a slave cannot complain in a
court of justice of ill-treatment from his master.[71] Yet the
condition of slaves in China is generally easy enough.[72] "In all
Chinese families of 'the upper ten {683} thousand,' an intimacy exists
between masters and men-servants on the one hand, and mistresses and
female servants on the other. Servants not unfrequently make
suggestions in reference to the well-being of the family, and in many
instances, domestic matters of a grave nature are discussed before
them."[73] In Chinese novels the servant is the confidant of his
master, and harsh behaviour towards slaves is only attributed to
vicious persons;[74] according to the Divine Panorama, he who beats or
injures his slave without estimating the punishment by the fault is
tormented in hell.[75] Many travellers have pointed out the difference
between the comparatively happy condition of slaves in China and the
degraded position of the former negro slaves in European colonies and
the United States of America.[76] "In China," it is observed, "the
identity of blood, colour, race, and habit between master and servant,
operates as a restraint on the avarice, vices, and cruelty of the
former, which would not be the case if they were of different races as
in America."[77]
[Footnote 64: Biot, 'Mémoire sur la condition des esclaves et des
serviteurs gagés en Chine,' in _Journal Asiatique_, ser. iii. vol.
iii. 257 _sqq._]
[Footnote 65: _Ibid._ p. 249 _sqq._]
[Footnote 66: _Supra_, p. 607.]
[Footnote 67: _Ta Tsing Leu Lee_, sec. cclxxv. p. 201.]
[Footnote 68: Biot, _loc. cit._ p. 260. Giles, _Strange Stories from a
Chinese Studio_, p. 211, n. 8. Gray, _China_, i. 241, 242, 246.]
[Footnote 69: _Supra_, p. 424.]
[Footnote 70: Gray, _op. cit._ i. 243 _sqq._]
[Footnote 71: Biot, _op. cit._ p. 292. _Ta Tsing Leu Lee_, sec.
cccxxxvii. p. 373.]
[Footnote 72: Biot, _loc. cit._ p. 296 _sq._ Giles, _op. cit._ i. 211
_sq._ n. 8. Gray, _op. cit._ i. 245. Wells Williams, _The Middle
Kingdom_, i. 413. Douglas, _Society in China_, p. 349.]
[Footnote 73: Gray, _op. cit._ i. 247.]
[Footnote 74: Biot, _loc. cit._ p. 296.]
[Footnote 75: Giles, _op. cit._ ii. 377.]
[Footnote 76: Biot, _loc. cit._ p. 297 _sq._]
[Footnote 77: _Chinese Repository_, xviii. 362.]
It has been suggested that in ancient Egypt the aboriginal inhabitants
of the country were made slaves by the conquering race. "Si nous
consultons les monuments," says M. Amélineau, "nous remarquons dans
les peintures qui ornent les parois des tombeaux de Saqqarah une
certaine race d'hommes sur laquelle Mariette avait déjà appelé
l'attention. . . . Je crois que ce sont là des esclaves, vieux restes
des populations primitives soumises par les conquérants nouvellement
arrivés dans la vallée du Nil, descendants des premières tribus
humaines qui s'étaient installées en Égypt."[78] During the eighteenth
and nineteenth dynasties, which form the chief period of Egypt's
foreign conquests, mention is frequently made of the employment of
prisoners of war as slaves. Every Pharao of these dynasties recounts
how he filled the god Amon's storehouses with male and female slaves
from his {684} spoil. These slaves are occasionally represented in
tombs; thus in the tomb of Rekhmere some slaves who are making bricks
and building a wall are designated as "the spoil which his Majesty
brought for the construction of the temple of Amon."[79] M. Amélineau
believes that slavery was in Egypt milder than in Greece and Rome.[80]
According to the Book of the Dead, the pity of the god extends to
slaves; not only does he command that no one should ill-treat them
himself, but he forbids that their masters should be led to ill-treat
them.[81]
[Footnote 78: Amélineau, _Essai sur l'évolution des idées morales dans
l'Égypt Ancienne_, p. 78.]
[Footnote 79: For these statements I am indebted to my friend Dr. Alan
Gardiner.]
[Footnote 80: Amélineau, _op. cit._ p. 349.]
[Footnote 81: _Book of the Dead_, ch. 125. _Cf._ Maspero, _Dawn of
Civilization_, p. 191.]
In ancient Chaldæa, beneath the free Semite and Sumerian population,
there was a class of slaves largely consisting of captives from
foreign races and their descendants, but continually reinforced by
individuals of the native race such as foundlings, women sold by their
husbands, children sold by their fathers, and probably debtors whom
their creditors had deprived of their liberty.[82] Their position was
evidently not one of excessive hardship.[83] As a rule, they were
permitted to marry and bring up a family; and it seems that masters,
when selling their slaves, as much as possible avoided separating
parents and children.[84] The master often apprenticed the children of
his slaves, and as soon as they knew a trade he set them up in
business in his own name, allowing them a share in the profits.[85] A
slave could hire himself out for wages, and could himself acquire
slaves to work for him.[86] He was even entitled to purchase his
freedom.[87] "La loi babylonienne," says M. Oppert, "lassait aux
esclaves sur quelques points {685} plus de prérogatives que le Code
français n'en accorde à nos épouses."[88]
[Footnote 82: Meissner, _Beiträge zur altbabylonischen Privatrecht_,
p. 6. Oppert, 'La condition des esclaves à Babylone,' in _Académie des
Inscriptions et Belles-Lettres--Comptes rendus des séances de l'année_
1888, ser. iv. vol. xvi. 122. Maspero, _op. cit._ p. 743.]
[Footnote 83: Meissner, _op. cit._ p. 7. Oppert, _loc. cit._ p. 121
_sqq._]
[Footnote 84: Oppert, _loc. cit._ p. 125 _sqq._]
[Footnote 85: Kohler and Peiser, _Aus dem babylonischen Rechtsleben_,
ii, 52 _sqq._]
[Footnote 86: Oppert, _loc. cit._ pp. 122, 128.]
[Footnote 87: Meissner, _op. cit._ p. 7. Oppert, _loc. cit._ p. 122.
Oppert and Ménant, _Documents juridiques de l'Assyrie et de la
Chaldée_, p. 14.]
[Footnote 88: Oppert, _loc. cit._ p. 121.]
Among the Hebrews the slave class consisted of captives taken in
war;[89] of persons bought with money from neighbouring nations or
from foreign residents in the land;[90] of children of slaves born in
the house;[91] of native Hebrews who had been sold by their
fathers,[92] or who either alone or with their wives and children had
fallen into slavery in consequence of poverty,[93] or who had been
sold by the authorities as slaves on account of theft when unable to
pay compensation for the stolen property.[94] To deprive an Israelite
of his freedom for any other reason, to steal him, use him as a slave,
or sell him, was a crime punishable with death.[95] And even the
Israelite who lost his liberty because he had become poor on account
of poverty was not to be treated in the same way as the slave of
foreign origin. He could not be compelled to serve as a bondservant,
only as a hired servant.[96] He should not be ruled over with
rigour.[97] He might not only be redeemed at any time by his
relatives, but if not redeemed he was bound to receive his freedom
without payment in the seventh year, and then the master should not
let him go away empty, but furnish him liberally out of his flock, his
floor, and his wine-press.[98] Slaves of foreign extraction, on the
other hand, were not to be emancipated, but should remain slaves for
ever, descending to children and children's children.[99] But in no
case had the master absolute power over his slave. Whether the latter
was an Israelite or a foreigner, his life, and to some extent his
body, were protected by law;[100] and if a slave escaped from a hard
master, he {686} should not be given up, but be allowed to live
unmolested in the place which he should choose in one of the cities of
Israel.[101] From everything that we read about slaves among the
Hebrews it appears that they were regarded as inferior members of the
family, and that the house-father cared for their well-being hardly
less than for that of his own children.[102] In the Talmud masters are
repeatedly admonished to treat their slaves with kindness;[103]
traffic in human beings is regarded as an occupation which
incapacitates the dealer to sit as judge;[104] and emancipation of
slaves is practically encouraged in various ways,[105] in spite of the
dictum of certain rabbis that he who emancipates his slave
transgresses the positive precept of Leviticus xxv. 46, "They shall be
your bondmen for ever."[106]
[Footnote 89: _Deuteronomy_, xx. 14.]
[Footnote 90: _Leviticus_, xxv. 44 _sqq._]
[Footnote 91: _Genesis_, xiv. 14.]
[Footnote 92: _Exodus_, xxi. 7.]
[Footnote 93: _Ibid._ xxi. 2 _sq._ _Leviticus_, xxv. 39, 47.]
[Footnote 94: _Exodus_, xxii. 3.]
[Footnote 95: _Ibid._ xxi. 16. _Deuteronomy_, xxiv. 7.]
[Footnote 96: _Leviticus_, xxv. 39, 40, 53.]
[Footnote 97: _Ibid._ xxv. 43, 46, 53.]
[Footnote 98: _Exodus_, xxi. 2. _Leviticus_, xxv. 40, 41, 48 _sqq._
_Deuteronomy_, xv. 12 _sqq._]
[Footnote 99: _Leviticus_, xxv. 44 _sqq._]
[Footnote 100: _Supra_, pp. 424, 516.]
[Footnote 101: _Deuteronomy_, xxiii. 15 _sq._]
[Footnote 102: See Mielziner, _Die Verhältnisse der Sklaven bei den
alten Hebräern_, p. 61 _sqq._; André, _L'esclavage chez les anciens
Hébreux_, p. 149 _sqq._; Benzinger, 'Slavery,' in Cheyne and Black,
_Encyclopædia Biblica_, iv. 4657 _sq._]
[Footnote 103: Katz, _Der wahre Talmudjude_, p. 59 _sqq._ See also
_Ecclesiasticus_, xxxiii. 31:--"If thou have a servant, entreat him as
a brother: for thou hast need of him as of thine own soul."]
[Footnote 104: Benny, _Criminal Code of the Jews according to the
Talmud Massecheth Synhedrin_, p. 36.]
[Footnote 105: Winter, _Die Stellung der Sklaven bei den Juden_, p. 41.]
[Footnote 106: _Berakhoth_, fol. 47 B, quoted by Hershon, _Treasures
of the Talmud_, p. 81. _R. Samuel_, quoted by André, _op. cit._ p. 180
_sq._]
According to Islam, a Muhammedan who is born free can never become a
slave. "The slave," says Mr. Lane, "is either a person taken captive
in war or carried off by force from a foreign country, and being at
the time of capture an infidel; or the offspring of a female slave by
another slave, or by any man who is not her owner, or by her owner if
he do not acknowledge himself to be the father."[107] The slave should
be treated with kindness; the Prophet said, "A man who behaves ill to
his slave will not enter into Paradise."[108] The master should give
to his slaves of the food which he eats himself, and of the clothes
with which he clothes himself.[109] He should not {687} order them to
do anything beyond their power, and in the hot season, during the
hottest hours of the day, he should let them rest.[110] He may marry
them to whom he will, but he may not separate them when married.[111]
He may, generally, give them away or sell them as he pleases, but he
must not separate a mother from her child. The Prophet said, "Whoever
is the cause of separation between mother and child, by selling or
giving, God will separate him from his friends on the day of
resurrection."[112] Nor is a master allowed to alienate a female slave
who has borne to him a child which he recognises as his own; and at
his death the mother is entitled to emancipation.[113] To liberate a
slave is regarded as an act highly acceptable to God, and as an
expiation for certain sins.[114] These rules, it should be added, are
not only recognised in theory, but derive additional support from
general usage. In the Muhammedan world the slave generally lives on
easy terms with his master. He is often treated as a member of the
family, and occasionally exercises much influence upon its
affairs.[115] In certain countries at least, it is held disreputable
or disgraceful for a person to sell his slave, except perhaps in case
of absolute necessity or in consequence of intolerable behaviour on
the part of the slave.[116] In Persia custom demands that on certain
festive occasions, such as the birth of a child or a wedding, one
{688} or several of the slaves of the family should be set free;[117]
and both there and in other Muhammedan countries testamentary
manumissions are of frequent occurrence.[118] In Morocco a slave is
sometimes allowed a certain amount of liberty that he may earn enough
to buy his freedom;[119] whilst among the Bedouins of the Arabian
Desert described by Burckhardt, slaves are always emancipated after a
certain lapse of time.[120] No stigma attaches to the emancipated
slave. It has been truly said that in Islam slavery is regarded as an
accident, not as a "constitution of nature,"[121] hence the freedman
is socially on an equal footing with a free-born citizen. He may
without discredit marry his former master's daughter, and become the
head of the family. Emancipated slaves have repeatedly risen to the
highest offices, they have ruled kingdoms and founded dynasties.[122]
[Footnote 107: Lane, _Manners and Customs of the Modern Egyptians_,
p. 116. _Cf._ Munzinger, _Ostafrikanische Studien_, p. 245 _sq._;
Ameer Ali, _Life and Teachings of Mohammed_, p. 376 _sq._]
[Footnote 108: Lane, _Arabian Society in the Middle Ages_, p. 255.
Lane-Poole, _Speeches and Table-Talk of the Prophet Mohammad_, p. 163.]
[Footnote 109: Lane, _Arabian Society_, p. 254. Lane-Poole,
_Speeches_, p. 163.]
[Footnote 110: Lane, _Arabian Society_, p. 254. Lane-Poole,
_Speeches_, p. 163. Sachau, _Muhammedanisches Recht_, pp. 18, 102.]
[Footnote 111: Lane, _Modern Egyptians_, p. 115.]
[Footnote 112: _Ibid._ p. 115. Lane, _Arabian Society_, p. 255. Ameer
All, _Life of Mohammed_, p. 374 _sq._]
[Footnote 113: Lane, _Modern Egyptians_, p. 116.]
[Footnote 114: _Koran_, xxiv. 33. Ameer Ali, _Life of Mohammed_, pp.
373, 377. Beltrame, _Il Sènnaar e lo Sciangàllah_, i. 46. Lane,
_Modern Egyptians_, p. 119.]
[Footnote 115: Lane, _Arabian Society_, p. 253 _sqq._ Polak,
_Persien_, i. 251, 255. Urquhart, _Spirit of the East_, ii. 403.
Burton, _Pilgrimage to Al-Madinah & Mecca_, i. 61. Munzinger,
_Ostafrikanische Studien_, p. 155. Beltrame, _Il Sènnaar_, i. 46
_sqq._ Loir, 'L'esclavage en Tunisie,' in _Revue scientifique_, ser.
iv. vol. xii. 592 _sq._ Villot, _M[oe]urs, coutumes et institutions
des indigènes de l'Algérie_, p. 250. Meakin, _Moors_, p. 133.
Chavanne, _Die Sahara_, p. 389 (Arabs of the Sahara). Pommerol, _Among
the Women of the Sahara_, p. 161 _sqq._ Dyveyrier, _Exploration du
Sahara_, p. 339. Hourst, _Sur le Niger et au pays des Touaregs_, p.
206 (Touareg). Hanoteau and Letourneux, _La Kabylie_, ii. 143. Reade,
_Savage Africa_, p. 582.]
[Footnote 116: Polak, _Persien_, i. 250. Beltrame, _Il Sènnaar_, i.
47, 248. Munzinger, _Ostafrikanische Studien_, p. 155.]
[Footnote 117: Polak, _op. cit._ i. 250.]
[Footnote 118: _Ibid._ i. 250. Meakin, _op. cit._ p. 139.]
[Footnote 119: Meakin, _op. cit._ p. 139.]
[Footnote 120: Burckhardt, _Notes on the Bedouins and Wahábys_,
p. 202.]
[Footnote 121: Ameer Ali, _Life of Mohammed_, p. 375.]
[Footnote 122: _Ibid._ p. 375 _sq._ Bosworth Smith, _Mohammed and
Mohammedanism_, pp. 206, 211 _sq._]
According to the Laws of Manu, the mythical legislator of ancient
India, there are slaves of seven kinds, namely, "he who is made a
captive under a standard, he who serves for his daily food, he who is
born in the house, he who is bought and he who is given, he who is
inherited from ancestors, and he who is enslaved by way of
punishment."[123] The last mentioned class consists of persons who
have lost their freedom because they have been unable to pay a debt or
a fine, or because they have left a religious order.[124] The slave is
not necessarily a Sûdra, or member of the lowest of the four Indian
castes, but Kshatriyas may become the slaves of Brâhmanas and Vaisyas
of Brâhmanas and Kshatriyas.[125] On the other hand, the Sûdras as
such were not slaves, though it was their duty to serve the other
castes; they chose the persons to whom they would offer service, and
claimed adequate compensation.[126] {689} The power which a
house-holder in India possessed over his slaves is not exactly
defined; but he is admonished not to have quarrels with them, and if
offended by any of them, to bear it without resentment.[127] In
Âpastamba's Aphorisms it is said that a person may at his pleasure
stint himself, his wife, or his children, "but by no means a slave who
does his work."[128] Elphinstone wrote in 1839 in his 'History of
India':--"Domestic slaves are treated exactly like servants, except
that they are more regarded as belonging to the family. I doubt if
they are ever sold; and they attract little observation, as there is
nothing apparent to distinguish them from freemen."[129] The
priesthood of modern Buddhism teach that there are five ways in which
a master ought to assist his slave:--"He must not appoint the work of
children to men, or of men to children, but to each according to his
strength; he must give each one his food and wages, according as they
are required; when sick, he must free him from work, and provide him
with proper medicine; when the master has any agreeable and savoury
food, he must not consume the whole himself, but must impart a portion
to others, even to his slaves; and if they work properly for a long
period, or for a given period, they must be set free."[130]
[Footnote 123: _Laws of Manu_, viii. 415.]
[Footnote 124: Bühler, in his translation of the Laws of Manu, in
_Sacred Books of the East_, xxv. 326, n. 415.]
[Footnote 125: _Ibid._ p. 326, n. 415.]
[Footnote 126: Ingram, _History of Slavery and Serfdom_, p. 272.]
[Footnote 127: _Laws of Manu_, iv. 180, 185.]
[Footnote 128: _Âpastamba_, ii. 4. 9. 11.]
[Footnote 129: Elphinstone, _History of India_, p. 203.]
[Footnote 130: Hardy, _Manual of Budhism_, p. 500.]
In Greece, especially in earlier times, capture in war, piracy, and
kidnapping were common causes of slavery,[131] and the condition was
hereditary. Other legitimate sources were exposure of infants, except
at Thebes,[132] and sale of children by their parents.[133] At Athens
insolvent debtors became the slaves of their creditors up to the time
of Solon;[134] and metics--that is, resident aliens--who did not
discharge the obligations imposed on them by the State, {690} were
sold as slaves, as were also foreigners who had fraudulently possessed
themselves of the rights of citizens.[135] At least in a later age the
majority of slaves seem to have been of barbarian origin;[136] indeed,
after the Peloponnesian war the principle that captives taken in wars
between Greek states should be ransomed and not enslaved was commonly
recognised, though not always followed in practice.[137] As we have
seen, the master had not the power of life and death over his
slave.[138] At sanctuaries the latter found a refuge from cruel
oppression.[139] If maltreated he could demand to be sold; and he
could purchase his liberty with his _peculium_ by agreement with his
master.[140] But by manumission he only entered into an intermediate
condition between slavery and complete freedom; thus, at Athens the
freedman was in relation to the State a metic and in relation to his
master a client.[141] Domestic slaves often lived on terms of intimacy
with their masters,[142] but as a class slaves were regarded with
contempt even by men like Plato and Aristotle. The former, whilst
warning his hearers against insolent and unjust behaviour towards
slaves, observes that they should be treated with severity, not
admonished as if they were freemen, but punished, and only addressed
in words of command.[143] Aristotle compares the relation of the
master to his slave with that of the soul to the body and of the
craftsman to his tool, and adds that there can be friendship between
them only in so far as the slave is regarded not as a slave but as a
fellow human being.[144] But whilst the state of slavery always
entailed disgrace, the question was raised whether the master's power
over his slave was based on justice or {691} on force, and in Greece,
for the first time, we meet with the opinion that the institution of
slavery is contrary to Nature, and that it is the law which, unjustly,
makes one man a slave and another free.[145] However, Aristotle was no
doubt in general agreement with his age when he declared that the
barbarians, on account of their inferiority, are intended by Nature to
be the slaves of the Greeks.[146]
[Footnote 131: Wallon, _Histoire de l'esclavage dans l'antiquité_, i.
161 _sqq._ Richter, _Die Sklaverei im griechischen Altertume_, p. 39
_sqq._]
[Footnote 132: Aelian, _Historia varia_, ii. 7.]
[Footnote 133: Wallon. _op. cit._ i. 159 _sq._]
[Footnote 134: Plutarch, _Vita Solonis_, xiii. 4.]
[Footnote 135: Wallon, _op. cit._ i. 160 _sq._ Richter, _op. cit._
p. 46.]
[Footnote 136: Hermann-Blümner, _Lehrbuch der griechischen
Privatalterthümer_, p. 86. Richter, _op. cit._ p. 48.]
[Footnote 137: Schmidt, _Ethik der alten Griechen_, ii. 204, 205, 283.
Hermann-Blümner, _op. cit._ p. 86 _sq._]
[Footnote 138: _Supra_, p. 425.]
[Footnote 139: Wallon, _op. cit._ i. 310 _sq._ Schmidt, _op. cit._ ii.
218 _sq._ Richter, _op. cit._ p. 140 _sq._]
[Footnote 140: Ingram, _op. cit._ p. 27 _sq._ Wallon, _op. cit._ i. 335
_sq._ Richter, _op. cit._ p. 151.]
[Footnote 141: Richter, _op. cit._ p. 157. Wallon, _op. cit._ i. 346
_sqq._]
[Footnote 142: Schmidt, _op. cit._ ii. 212. Richter, _op. cit._ p. 151.]
[Footnote 143: Plato, _Leges_, vi. 777 _sq._]
[Footnote 144: Aristotle, _Ethica Nicomachea_, viii. 11. 6 _sq._
_Idem_, _Politica_, i. 5, p. 1254.]
[Footnote 145: _Idem_, _Politica_, i. 3, p. 1253 b.]
[Footnote 146: _Ibid._ i. 2, 6, pp. 1252 b, 1255 a. See Euripides,
_Iphigenia in Aulide_, 1400 _sq._]
The Roman jurists held up slavery as a mitigation of the horrors of
war: the capture and preservation of enemies, they said, was its sole
and exclusive origin in the past.[147] But in Rome as elsewhere, when
once established, it contained in itself the germ of extension; all
the children of a female slave followed the condition of the mother,
according to the principle applicable to the offspring of the lower
animals--"Partus sequitur ventrem." And sooner or later, when these
sources proved insufficient to maintain the supply, a regular commerce
in slaves was established, which was based on the systematically
prosecuted hunting of men in foreign lands.[148] To a much smaller
extent the slave class was recruited by Roman citizens--by children
sold by their fathers, by insolvent debtors, or by criminals condemned
to servitude as a punishment for some heinous offence.[149] The idea
of a Roman becoming the slave of a fellow-citizen was never quite
agreeable to the Roman mind. According to an ancient law the debtor,
after being made over to the creditor, should be sold abroad or _trans
Tiberim_.[150] Subsequently, in 326 B.C., the creditor's lien was
restricted to the goods of his debtor, if the latter was a Roman
citizen;[151] and during the Pagan Empire the sale of freeborn {692}
children by their fathers was prohibited.[152] The power, originally
unlimited, which the master had over his slave was also, in the course
of time, subjected to limitations. We have seen that since the days of
Claudius and Antoninus Pius legal check was put on the master's right
of killing his slave.[153] The Lex Petronia, A.D. 61, forbade masters
to compel their slaves to fight with wild beasts.[154] In the time of
Nero an official was appointed to hear complaints of the wrongs done
by masters to their slaves.[155] Antoninus Pius directed that slaves
treated with excessive cruelty, who had taken refuge at an altar or
imperial image, should be sold; and this provision was extended to
cases in which the master had employed a slave in a way degrading to
him or beneath his character.[156] In public auctions of slaves regard
was paid to the claims of relationship,[157] and in the interpretation
of testaments it was assumed that members of the same family were not
to be separated by the division of the succession.[158] In those days
when Roman slavery had lost its original patriarchal and, to speak
with Mommsen,[159] "in some measure innocent" character, when the
victories of Rome and the increasing slave trade had introduced into
the city innumerable slaves, when those simpler habits of life which
in early times somewhat mitigated the rigour of the law had
changed--the lot of the Roman slave was often extremely hard, and
numerous acts of shocking cruelty were committed.[160] But we also
hear, from the early days of the Empire, that masters who had been
cruel to their slaves were pointed at with disgust in all parts of the
city, and were hated and loathed.[161] And with a fervour which can
hardly be surpassed Seneca and other Stoics argued that the slave is a
being with human dignity and human rights, born of the same race as
ourselves, living the same life, {693} and dying the same death--in
short, that our slaves "are also men, and friends, and our
fellow-servants."[162] Epictetus even went so far as to condemn
altogether the keeping of slaves, a radicalism explicable from the
history of his own life. "What you avoid suffering yourself," he says,
"seek not to impose on others. You avoid slavery, for instance; take
care not to enslave. For if you can bear to exact slavery from others,
you appear to have been yourself a slave."[163] These teachings could
not fail to influence both legislation and public sentiment. Imbued
with the Stoic philosophy, the jurists of the classical period
declared that all men are originally free by the law of Nature, and
that slavery is only "an institution of the Law of Nations, by which
one man is made the property of another, in opposition to natural
right."[164]
[Footnote 147: Hunter, _Exposition of Roman Law_, p. 160 _sq._
_Institutiones_, i. 3. 3:--"Slaves are called _servi_, because
generals are wont to sell their captives, and so to preserve
(_servare_), and not to destroy them. They are also called _mancipia_,
because they are taken from the enemy with the strong hand (_manu
capiuntur_)."]
[Footnote 148: Mommsen, _History of Rome_, iii. 305 _sq._ Wallon, _op.
cit._ ii. 46 _sqq._ Ingram, _op. cit._ p. 38.]
[Footnote 149: Wallon, _op. cit._ ii. 18 _sqq._ Ingram, _op. cit._ p.
39. _Institutiones_, i. 12. 3.]
[Footnote 150: Mackenzie, _Studies in Roman Law_, p. 94.]
[Footnote 151: Livy, _Historiæ Romanæ_, viii. 28. Wallon, _op. cit._
ii. 29, n. 1.]
[Footnote 152: _Supra_, p. 615.]
[Footnote 153: _Supra_, p. 425 _sq._]
[Footnote 154: _Digesta_, xlviii. 8. 11. 2.]
[Footnote 155: Seneca, _De beneficiis_, iii. 22. 3.]
[Footnote 156: Wallon, _op. cit._ iii. 57 _sq._ Ingram, p. 63.]
[Footnote 157: Hunter, _Exposition of Roman Law_, p. 159.]
[Footnote 158: Wallon, _op. cit._ iii. 53.]
[Footnote 159: Mommsen, _History of Rome_, iii. 305.]
[Footnote 160: See Lecky, _History of Morals_, i. 302 _sq._]
[Footnote 161: Seneca, _De clementia_, i. 18. 3.]
[Footnote 162: _Idem_, _Epistolæ_, 47. _Idem_, _De beneficiis_, iii.
28. Epictetus, _Dissertationes_, i. 13. See also the collection of
statements referring to slavery made by Holland, _Reign of the
Stoics_, p. 186 _sqq._]
[Footnote 163: Epictetus, _Fragmenta_, 42.]
[Footnote 164: _Institutiones_, i. 3. 2.]
Considering that Christianity has commonly been represented as almost
the sole cause of the mitigation and final abolishment of slavery in
Europe, it deserves special notice that the chief improvement in the
condition of slaves at Rome took place at so early a period that
Christianity could have absolutely no share in it. Nay, for about two
hundred years after it was made the official religion of the Empire
there was an almost complete pause in the legislation on the
subject.[165] Under Justinian certain reforms were introduced:
--enfranchisement was facilitated in various ways;[166] the rights of
Roman citizens were granted to emancipated slaves, who had previously
occupied an intermediate position between slavery and perfect
freedom;[167] and though the law still refused to recognise the
marriages of slaves, Justinian gave them a legal value after
emancipation in establishing rights of succession.[168] But the inferior
position of the slave was asserted as sternly as ever. He belonged to
the {694} "corporeal" property of his master, he was reckoned among
things which are tangible by their nature, like land, raiment, gold, and
silver.[169] The constitution of Antoninus Pius restraining excessive
severity on the part of masters was enforced, but the motive for this
was not evangelic humanity.[170] It is said in the Institutes of
Justinian, "This decision is a just one; for it greatly concerns the
public weal, that no one be permitted to misuse even his own
property."[171]
[Footnote 165: _Cf._ Lecky, _History of European Morals_, ii. 64.]
[Footnote 166: _Institutiones_, i. 5 _sqq._]
[Footnote 167: _Ibid._ i. 5. 3; iii. 7. 4.]
[Footnote 168: _Ibid._ iii. 7 pr.]
[Footnote 169: _Institutiones_, ii. 2. 1.]
[Footnote 170: _Cf._ Milman, _History of Latin Christianity_, ii. 14.]
[Footnote 171: _Institutiones_, i. 8. 2.]
It is curious to note that the inconsistency of slavery with the
tenet, "Do to others as you would be done by," though emphasised by a
pagan philosopher, never seems to have occurred to any of the early
Christian writers. Christianity recognised slavery from the beginning.
The principle that all men are spiritually equal in Christ does not
imply that they should be socially equal in the world. Slavery does
not prevent anybody from performing the duties incumbent on a
Christian, it does not bar the way to heaven, it is an external affair
only, nothing but a name. He only is really a slave who commits
sin.[172] Slavery is of course a burden, but a burden which has been
laid upon the back of transgression. Man when created by God was free,
and nobody was the slave of another until that just man Noah cursed
Ham, his offending son; slavery, then, is a punishment sent by Him who
best knows how to proportionate punishment to offence.[173] The slave
himself ought not to desire to become free,[174] nay, if the master
offers him freedom he ought not to accept it.[175] Not one of the
Fathers even {695} hints that slavery is unlawful or improper.[176] In
the early age martyrs possessed slaves, and so did abbots, bishops,
popes, monasteries, and churches;[177] Jews and pagans only were
prohibited from acquiring Christian slaves.[178] So little was the
abolition of slavery thought of that a Council at Orleans, in the
middle of the sixth century, expressly decreed the perpetuity of
servitude among the descendants of slaves.[179] On the other hand, the
Church showed a zeal to prevent accessions to slavery from capture,
but her exertions were restricted to Christian prisoners of war.[180]
As late as the nineteenth century the right of enslaving captives was
defended by Bishop Bouvier.[181]
[Footnote 172: Gregory Nazianzen, _Orationes_, xiv. 25 (Migne,
_Patrologiæ cursus_, Ser. Graeca, xxxv. 891 _sq._). _Idem_, _Carmina_,
i. 2. 26. 29 (_ibid._ xxxvii. 853); i. 2. 33. 133 _sqq._ (_ibid._
xxxvii. 937 _sq._). St. Chrysostom, _In cap. IX. Genes. Homilia XXIX._
7 (_ibid._ liii. 270). _Idem_, _In Epist. I. ad Cor. Homilia XIX._ 5
(_ibid._ lxi. 158). St. Ambrose, _In Epistolam ad Colossenses_, 3
(Migne, _op. cit._ Ser. Lat. xvii. 439).]
[Footnote 173: St. Augustine, _De civitate Dei_, xix. 15 (Migne, _op.
cit._ xli. 643 _sq._).]
[Footnote 174: St. Ignatius, _Epistola ad Polycarpum_, 4 (Migne, _op.
cit._ Ser. Graeca, v. 723 _sq._). St. Augustine, _Ennaratio in Psalmum
CXXIV._ 7 (Migne, _op. cit._ xxxvii. 1653).]
[Footnote 175: Laurent, _Études sur l'histoire de l'humanité_, iv. 117.]
[Footnote 176: _Cf._ Babington, _Influence of Christianity in
Promoting the Abolition of Slavery in Europe_, p. 29.]
[Footnote 177: _Ibid._ p. 22. Potgiesser, _Commentarii juris Germanici
de statu servorum_, i. 4. 8, p. 176. Muratori, _Dissertazioni sopra le
antichità italiane_, i. 244.]
[Footnote 178: _Concilium Toletanum IV._ A.D. 633, can. 66
(Labbe-Mansi, _Sacrorum Conciliorum collectio_, x. 635). Blakey,
_Temporal Benefits of Christianity_, p. 397. Digby, _Mores Catholici_,
ii. 341. Cibrano, _Della schiavitù e del servaggio_, i. 272. Rivière,
_L'Église et l'esclavage_, p. 350.]
[Footnote 179: _Concilium Aurelianense IV._ about A.D. 545, can. 32
(Labbe-Mansi, _op. cit._ ix. 118 _sq._).]
[Footnote 180: _Concilium Rhemense_, about A.D. 630, can. 22
(Labbe-Mansi, _op. cit._ x. 597). Gratian, _Decretum_, ii. 12. 2. 13
_sqq._ Baronius, _Annales Ecclesiastici_, A.D. 1263, ch. 74 vol. xxii.
124. Le Blant, _Inscriptions chrétiennes de la Gaule_, ii. 284 _sqq._
Babington, _op. cit._ pp. 51 _sqq._, 94 _sq._ Nys, _Le droit de la
guerre et les précurseurs de Grotius_, p. 114.]
[Footnote 181: Bouvier, _Institutiones philosophicæ_, p. 566.]
The Apostles reminded slaves of their duties towards their masters and
masters of their duties towards their slaves.[182] The same was done
by Councils and Popes. The Council of Gangra, about the year 324,
pronounced its anathema on anyone who should teach a slave to despise
his master on pretence of religion;[183] and so much importance was
attached to this decree that it was inserted in the epitome of canons
which Hadrian I. in 773 presented to Charlemagne in Rome.[184] But
there are also many instances in which masters are recommended to show
humanity to their slaves.[185] According to Gregory IX. {696} "the
slaves who were washed in the fountain of holy baptism should be more
liberally treated in consideration of their having received so great a
benefit."[186] Slaves who had taken refuge from their masters in
churches or monasteries were not to be given up until the master had
sworn not to punish the fugitive;[187] or they were never given up,
but became slaves to the sanctuary.[188] The Church, as we have seen,
protected the life of the slave by excommunicating for a couple of
years masters who killed their slaves.[189] She prohibited the sale of
Christian slaves to Jews and heathen nations.[190] The Council of
Chalons, in the middle of the seventh century, ordered that no
Christians should be sold outside the kingdom of Clovis, so that they
might not get into captivity or become the slaves of Jewish
masters;[191] and some Anglo-Saxon laws similarly forbade the sale of
Christians out of the country, and especially into bondage to heathen,
"that those souls perish not that Christ bought with his own
life."[192] The clergy sometimes remonstrated against slave markets;
but their indignation never reached the trade in heathen slaves,[193]
nor was the master's right of selling any of his slaves whenever he
pleased called in question at all. The assertion made by many writers
that the Church exercised an extremely favourable influence upon
slavery[194] surely involves a great exaggeration. As late as the
thirteenth century the master practically had the power of life and
death over his slave.[195] Throughout Christendom the purchase and
{697} the sale of men, as property transferred from vendor to buyer,
was recognised as a legal transaction of the same validity with the
sale of other merchandise, land or cattle.[196] Slaves had a title to
nothing but subsistence and clothes from their masters, all the
profits of their labour accruing to the latter; and if a master from
indulgence gave his slaves any _peculium_, or fixed allowance for
their subsistence, they had no right of property in what they saved
out of that, but all that they accumulated belonged to their
master.[197] A slave or a freedman was not allowed to bring a criminal
charge against a free person, except in the case of a _crimen læsæ
majestatis_,[198] and slaves were incapable of being received as
witnesses against freemen.[199] The old distinction between the
marriage of the freeman and the concubinage of the slave was long
recognised by the Church: slaves could not marry, but had only a right
of _contubernium_, and their unions did not receive the nuptial
benediction of a priest.[200] Subsequently, when conjunction between
slaves came to be considered a lawful marriage, they were not
permitted to marry without the consent of their master, and such as
transgressed this rule were punished very severely, sometimes even
with death.[201]
[Footnote 182: _Ephesians_, vi. 5 _sqq._ _Colossians_, iii. 22 _sqq._;
iv. 1.]
[Footnote 183: _Concilium Gangrense_, about A.D. 324, can. 3
(Labbe-Mansi, _op. cit._ ii. 1102, 1106, 1110).]
[Footnote 184: 'Epitome canonum, quam Hadrianus I. Carolo magno
obtulit, A.D. DCCLXXIII.' in Labbe-Mansi, _op. cit._ xii. 863.]
[Footnote 185: Babington, _op. cit._ p. 58 _sqq._]
[Footnote 186: Baronius, _Annales Ecclesiastici_, A.D. 1238, ch. 62,
vol. xxi. 204.]
[Footnote 187: Milman, _op. cit._ ii. 51. Rivière, _op. cit._ p. 306.
Du Boys, _Histoire du droit criminel des peuples modernes_, ii. 246,
n. 1.]
[Footnote 188: 'Concilium Kingesburiense sub Bertulpho,' in Wilkins,
_Concilia Magnæ Britanniæ et Hiberniæ_, i. 181.]
[Footnote 189: _Supra_, p. 426.]
[Footnote 190: _Concilium Rhemense_, about A.D. 630, can. 11
(Labbe-Mansi, _op. cit._ x. 596). _Concilium Liptinense_, A.D. 743,
can. 3 (_ibid._ xii. 371). Hefele, _Beiträge zur Kirchengeschichte_,
i. 218. _Idem_, _History of the Councils of the Church_, v. 211.]
[Footnote 191: _Concilium Cabilonense_, about A.D. 650, can. 9
(Labbe-Mansi, _op. cit._ x. 1191).]
[Footnote 192: _Laws of Ethelred_, v. 2; vi. 9. _Laws of Cnut_, ii. 3.]
[Footnote 193: Hüllmann, _Stædtewesen des Mittelalters_, i. 80 _sq._
Loring Brace, _Gesta Christi_, p. 229. Rivière, _op. cit._ p. 325.]
[Footnote 194: Yanoski, _De l'abolition de l'esclavage ancien au moyen
age_, p. 74 _sq._ Allard, _Les esclaves chrétiens depuis les premiers
temps de l'Église_, p. 487; &c.]
[Footnote 195: _Supra_, p. 427 _sq._]
[Footnote 196: Potgiesser, _op. cit._ ii. 4. 5, p. 429. Milman, _op.
cit._ ii. 16.]
[Footnote 197: Potgiesser, _op. cit._ ii. 10, p. 528 _sqq._ Du Cange,
_Glossarium ad scriptores mediæ et infimæ Latinitatis_, vi. 451.
Robertson, _History of the Reign of the Emperor Charles V._ i. 274.]
[Footnote 198: Potgiesser, _op. cit._ iii. 3. 2, p. 612.]
[Footnote 199: Beaumanoir, _Coutumes du Beauvoisis_, xxxix. 32, vol.
ii, 103. Du Cange, _op. cit._ vi. 452. Potgiesser, _op. cit._ iii. 3.
1, p. 611.]
[Footnote 200: Potgiesser, _op. cit._ ii. 2. 10 _sq._, p. 354 _sq._]
[Footnote 201: _Ibid._ ii. 2. 12, p. 355 _sq._]
The gradual disappearance of slavery in Europe during the latter part
of the Middle Ages has also commonly been in the main attributed to
the influence of the Church.[202] But this opinion is hardly supported
by facts. It is true that the Church in some degree encouraged the
manumission of slaves. Though slavery was considered a {698} perfectly
lawful institution, the enfranchisement of a fellow-Christian was
deemed a meritorious act, and was sometimes strongly recommended on
Christian principles. At the close of the sixth century it was
affirmed that, as Christ had come to break the chain of our servitude
and restore our primitive liberty, so it was well for us to imitate
Him by making free those whom the law of nations had reduced to
slavery;[203] and the same doctrine was again proclaimed at various
times down to the sixteenth century.[204] In the Carlovingian period
the abbot Smaragdus expressed the opinion that among other good and
salutary works each one ought to let slaves go free, considering that
not nature but sin had subjected them to their masters.[205] In the
latter part of the twelfth century the prelates of France, and in
particular the Archbishop of Sens, pretended that it was an obligation
of conscience to accord liberty to all Christians, relying on a decree
of a Council held at Rome by Pope Alexander III.[206] And in one of
the later compilations of German mediæval law it was said that the
Lord Jesus, by his injunction to render unto Cæsar the things which
are Cæsar's and unto God the things that are God's, indicated that no
man is the property of another, but that every man belongs to
God.[207] Slaves were liberated "for God's love," or "for the remedy"
or "ransom of the soul."[208] In the formularies of manumission given
by the monk Marculfus in the seventh century we read, for
instance:--"He that releases his slave who is bound to him, may trust
that God will recompense him in the next world";[209] "For the
remission of my sins, I absolve thee";[210] "For the glory {699} of
God's name and for my eternal retribution," &c.[211] Too much
importance, however, has often been attached to these phrases; the
most trivial occurrences, such as giving a book to a monastery, are
commonly accompanied by similar expressions,[212] and it appears from
certain formulas that slaves were not only liberated, but also bought
and sold, "in the name of God."[213] Nor can we suppose that it was
from religious motives only that manumissions were encouraged by the
clergy. It has been pointed out that, "as dying persons were
frequently inclined to make considerable donations for pious uses, it
was more immediately for the interest of churchmen, that people of
inferior condition should be rendered capable of acquiring property,
and should have the free disposal of what they had acquired." It also
seems that those who obtained their liberty by the influence of the
clergy had to reward their benefactors, and that the manumission
should for this reason be confirmed by the Church.[214] And whilst the
Church favoured liberation of the slaves of laymen, she took care to
prevent liberation of her own slaves; like a physician she did not
herself swallow the medicine which she prescribed to others. She
allowed alienation of such slaves only as showed a disposition to run
away.[215] The Council of Agatho, in 506, considered it unfair to
enfranchise the slaves of monasteries, seeing that the monks
themselves were daily compelled to labour;[216] and, as a matter of
fact, the slaves of monasteries were everywhere among the last who
were manumitted.[217] In the seventh century a Council at Toledo
threatened with damnation any bishop who should liberate a slave
belonging to the Church, without giving {700} due compensation from
his own property, as it was thought impious to inflict a loss on the
Church of Christ;[218] and according to several ecclesiastical
regulations no bishop or priest was allowed to manumit a slave in the
patrimony of the Church unless he put in his place two slaves of equal
value.[219] Nay, the Church was anxious not only to prevent a
reduction of her slaves, but to increase their number. She zealously
encouraged people to give up themselves and their posterity to be the
slaves of churches and monasteries, to enslave their bodies--as some
of the charters put it--in order to procure the liberty of their
souls.[220] And in the middle of the seventh century a Council decreed
that the children of incontinent priests should become the slaves of
the churches where their fathers officiated.[221]
[Footnote 202: Clarkson, _Essay on Slavery_, p. 19, _sq._ Biot, _De
l'abolition de l'esclavage ancien en Occident_, p. xi. Thérou, _Le
Christianisme et l'esclavage_, p. 147. Martin, _Histoire de France
jusqu'en_ 1789, iii. 11, n. 2. Balmes, _El Protestantismo comparado
con el Catolicismo_, i. 285. Blakey, _op. cit._ p. 170. Yanoski, _op.
cit._ p. 75. Cochin, _L'abolition de l'esclavage_, ii. 349, 458.
Littré, _Études sur les Barbares et le Moyen Age_, p. 230 _sq._
Allard, _op. cit._ p. 490. Tedeschi, _La schiavitù_, p. 68. Lecky,
_History of Rationalism in Europe_, ii. 216, 236 _sqq._ Maine,
_International Law_, p. 160. Kidd, _Social Evolution_, p. 168.]
[Footnote 203: St. Gregory the Great, _Epistolæ_, vi. 12 (Migne,
_Patrologiæ cursus_, lxxvii. 803 _sq._). Gratian, _op. cit._ ii. 12.
2. 68. Potgiesser, _op. cit._ iv. 1. 3, p. 666 _sq._]
[Footnote 204: Babington, _op. cit._ p. 180.]
[Footnote 205: Smaragdus, _Via Regia_, 30 (d'Achery, _Spicilegium_,
i. 253).]
[Footnote 206: de Boulainvilliers, _Histoire de l'ancien gouvernement
de la France_, i. 312.]
[Footnote 207: _Speculum Saxonum_, iii. 42 (Goldast, _Collectio
consuetudinum et legum imperialium_, p. 158).]
[Footnote 208: Du Cange, _op. cit._ iv. 460 _sqq._ Potgiesser, _op.
cit._ iv. 12. 5, p. 751 _sqq._ Muratori, _op. cit._ i. 249. Robertson,
_op. cit._ i. 323. Milman, _op. cit._ ii. 51 _sq._]
[Footnote 209: Marculfus, _Formulæ_, ii. 32 (Migne, _op. cit._
lxxxvii. 747).]
[Footnote 210: _Ibid._ ii. 33 (Migne, _op. cit._ lxxxvii. 748).]
[Footnote 211: Marculfus, _Formulæ_, ii. 34 (Migne, _op. cit._
lxxxvii. 748).]
[Footnote 212: Babington, _op. cit._ p. 61, n. 6.]
[Footnote 213: _Formulæ Bignonianæ_, 2, 'Venditio de servo' (Baluze,
_Capitularia regum Francorum_, ii. 497):--"Domino magnifico fratri
illi emptori, ego in Dei nomine ille venditor."]
[Footnote 214: Millar, _Origin of the Distinction of Ranks_, p. 274
_sq._]
[Footnote 215: Gratian, _op. cit._ ii. 12. 2. 54.]
[Footnote 216: _Concilium Agathense_, A.D. 506, can. 56 (Labbe-Mansi,
_op. cit._ viii. 334).]
[Footnote 217: Hallam, _View of the State of Europe during the Middle
Ages_ (ed. 1837), i. 221.]
[Footnote 218: _Concilium Toletanum IV._ A.D. 633, can. 67
(Labbe-Mansi, _op. cit._ x. 635).]
[Footnote 219: Gratian, _op. cit._ ii. 12. 2. 58. Potgiesser, _op.
cit._ iv. 2. 4, p. 673.]
[Footnote 220: Du Cange, _op. cit._ iv. 1286. Potgiesser, _op. cit._
i. 1. 6 _sq._, p. 5 _sqq._ Muratori, _op. cit._ i. 234 _sqq._
Robertson, _op. cit._ i. 326.]
[Footnote 221: _Concilium Toletanum IX._ A.D. 655, can. 10
(Labbe-Mansi, _op. cit._ xi. 29).]
The disappearance of mediæval slavery has further, to some extent,
been attributed to the efforts of kings to weaken the power of the
nobles.[222] Thus Louis X. and Philip the Long of France issued
ordinances declaring that, as all men were by nature free, and as
their kingdom was called the kingdom of the Franks, they would have
the fact to correspond with the name, and emancipated all persons in
the royal domains upon paying a just compensation, as an example for
other lords to follow.[223] Muratori believes that in Italy the wars
during the twelfth and following centuries contributed more than
anything else to the decline of slavery, as there was a need of
soldiers and soldiers must be freemen.[224] According to others the
disappearance of slavery was largely effected by the great famines and
epidemics with which Europe was visited during the tenth, eleventh,
and twelfth {701} centuries.[225] The number of slaves was also
considerably reduced by the ancient usage of enslaving prisoners of
war being replaced by the more humane practice of accepting ransom for
them, which became the general rule in the later part of the Middle
Ages, at least in the case of Christian captives.[226] But it seems
that the chief cause of the extinction of slavery in Europe was its
transformation into serfdom.
[Footnote 222: Robertson, _op. cit._ i. 47 _sq._ Millar, _op. cit._
p. 276 _sqq._]
[Footnote 223: Decrusy, Isambert, and Jourdan, _Recueil général des
anciennes lois françaises_, iii. 102 _sqq._]
[Footnote 224: Muratori, _op. cit._ i. 234 _sq._ _Idem_, _Rerum
Italicarum scriptores_, xviii. 268, 292.]
[Footnote 225: Biot, _op. cit._ p. 318 _sqq._ Saco, _Historia de la
esclavitud_, iii. 241 _sqq._]
[Footnote 226: Ward, _Enquiry into the Foundation and History of the
Law of Nations in Europe_, i. 298 _sq._ Babington, _op. cit._ p. 147.
Ayala, _De jure et officiis bellicis_, i. 5. 19. In the sixteenth
century the statutes of some Italian towns make mention of the sale of
slaves, who probably were Turkish captives (Nys, _Le droit de la
guerre et les précurseurs de Grotius_, p. 140).]
This transformation has been traced to the diminished supply of
slaves, which made it the interest of each family to preserve
indefinitely its own hereditary slaves, and to keep up their number by
the method of propagation. The existence and physical well-being of
the slave became consequently an object of greater value to his
master, and the latter found it most profitable to attach his slaves
to certain pieces of land.[227] Moreover, the cultivation of the
ground required that the slaves should have a fixed residence in
different parts of the master's estate, and when a slave had thus been
for a long time engaged in a particular farm, he was so much the
better qualified to continue in the management of it for the future.
By degrees he therefore came to be regarded as belonging to the stock
upon the ground, and was disposed of as a part of the estate which he
had been accustomed to cultivate.[228]
[Footnote 227: Storch, _Cours d'économie politique_, iv. 260. Ingram,
_op. cit._ p. 72.]
[Footnote 228: Millar, _op. cit._ p. 263 _sqq._]
But serfdom itself was merely a transitory condition destined to lead
up to a state of entire liberty. As the proprietor of a large estate
could not oversee the behaviour of his villeins, scattered over a wide
area of land, the only means of exciting their industry would be to
offer them a reward for the work which they performed. Thus, besides
the ordinary maintenance allotted {702} to them, they frequently
obtained a part of the profits, and became capable of having separate
property.[229] In many cases this no doubt enabled the serf to
purchase his liberty out of his earnings;[230] whilst in others the
master would have an interest in allowing him to pay a fixed rent and
to retain the surplus for himself. The landlord was then freed from
the hazard of accidental losses, and obtained not only a certain, but
frequently an additional, revenue from his land, owing to the greater
exertions of cultivators who worked for their own benefit;[231] and at
the same time the personal subjection of the peasants naturally came
to an end, as it was of no consequence to the landlord how they
conducted themselves provided that they punctually paid the rents. Nor
was there any reason to insist that they should remain in the farm
longer than they pleased; for the profits it afforded made them
commonly not more willing to leave it than the proprietor was to put
them away.[232] Another factor which led to the disappearance of
serfdom was the encouragement which Sovereigns, always jealous of the
great lords, gave to the villeins to encroach upon their
authority.[233] We have convincing proof that in England, before the
end of Edward III.'s reign, the villeins found themselves sufficiently
powerful to protect one another, and to withhold their ancient and
accustomed services from their lord.[234] In Germany, again, the
landlords sometimes furnished their villeins with arms to defend the
cause of their master, and this undoubtedly tended to their
enfranchisement, as persons who are taught to use and allowed to
possess weapons will soon make {703} themselves respected.[235] A
great number of villeins also shook off the fetters of their servitude
by fleeing for refuge to some chartered town,[236] where they became
free at once,[237] or, more commonly, after a certain stipulated
period--a year and a day,[238] or more;[239] and it seems, besides,
that the rapid disappearance of serfdom in the prospering free towns
indirectly, by way of example, promoted the enfranchisement of rural
serfs.[240] There are, further, instances of lords liberating their
villeins at the intercession of their spiritual confessors, the clergy
availing themselves of every opportunity to lessen the formidable
power of their great rivals, the temporal nobility.[241] But the
influence which the Church exercised in favour of the enfranchisement
of serfs was even less than her share in the abolition of slavery
proper.[242] She represented serfdom as a divine institution,[243] as
a school of humility, as a road to future glory.[244] She was herself
the greatest {704} serf-holder;[245] and so strenuously did she
persist in retaining her villeins, that after Voltaire had raised his
powerful outcry in favour of liberty and Louis XVI. himself had been
induced to abolish "the right of servitude" in consideration of "the
love of humanity," the Church still refused to emancipate her
serfs.[246] But whilst the cause of freedom owes little to the
Christian Church, it owes so much the more to the feelings of humanity
and justice in some of her opponents.
[Footnote 229: Millar, _op. cit._ p. 264. Simonde de Sismondi,
_Histoire des républiques italiennes du moyen âge_, xvi. 365 _sq._
Guérard, _Cartulaire de l'Abbaye de Saint-Père de Chartres_, i. p.
xli. Dunham, _History of the Germanic Empire_, i. 230.]
[Footnote 230: See Vinogradoff, _Villainage in England_, p. 87;
Pollock and Maitland, _History of English Law before the Time of
Edward I._ i. 36, 427.]
[Footnote 231: Adam Smith, _Wealth of Nations_, p. 173. Millar, _op.
cit._ p. 267 _sqq._ Mill, _Principles of Political Economy_, i. 309,
311. Dunham, _op. cit._ i. 228 _sq._ On the inefficiency of slave
labour, see also Storch, _op. cit._ iv. 275 _sqq._]
[Footnote 232: Millar, _op. cit._ p. 269 _sq._]
[Footnote 233: Adam Smith, _Wealth of Nations_, p. 173.]
[Footnote 234: Eden, _State of the Poor_, i. 30.]
[Footnote 235: Dunham, _op. cit._ i. 229.]
[Footnote 236: Guibertus de Novigento, 'De vita sua,' in Bouquet,
_Rerum Gallicarum et Franciarum scriptores_, xii. 257. 'Fragmentum
historicum vitam Ludovici VII. summatim complectens,' _ibid._ xii.
286. Beaumanoir, _op. cit._ xlv. 36, vol. ii. 237. Eden, _op. cit._ i.
30. Laurent, _op. cit._ vii. 531 _sq._ Saco, _op. cit._ iii. 252.]
[Footnote 237: Laurent, _op. cit._ vii. 532.]
[Footnote 238: Glanville, _Tractates de Legibus et Consuetudinibus
Regni Angliæ_, v. 5. Bracton, _De Legibus et Consuetudinibus Angliæ_,
fol. 198 b, vol. iii. 292 _sq._ Beaumanoir, _op. cit._ xlv. 36, vol.
ii. 237. Pollock and Maitland, _op. cit._ i. 429, 648 _sq._ Grimm,
_Deutsche Rechtsalterthümer_, p. 337 _sq._ Laurent, _op. cit._ vii.
532.]
[Footnote 239: Laurent, _op. cit._ vii. 532.]
[Footnote 240: _Ibid._ vii. 533 _sq._]
[Footnote 241: Thomas Smith, _Common-wealth of England_, p. 250. Eden,
_op. cit._ i. 10. Sugenheim, _Geschichte der Aufhebung der
Leibeigenschaft und Hörigkeit in Europa_, p. 109.]
[Footnote 242: _Cf._ Rivière, _op. cit._ p. 511. Babington says (_op.
cit._ p. 148 _sq._) that in the five-hundred pages of Wilkins'
_Concilia_, which comprise the ecclesiastical documents of the British
churches in the thirteenth century, we only find the following
regulations concerning the unfree population:--that neither freemen
nor villeins are to be impeded in making their wills when death
approaches; that monks are not to alienate their less useful slaves
(_famulos_); that Jews are not allowed to possess Christian
slaves.--It was said that "he puts a disgrace on God who raises a
villein above his station" (_ibid._ p. 150).]
[Footnote 243: Adalbero, _Carmen ad Rotbertum regem Francorum_, 291,
292, 297 _sqq._ (Bouquet, _op. cit._ x. 70):--"Thesaurus, vestis,
cunctis sunt pascua servi. Nam valet ingenuus sine servis vivere
nullus. . . . Triplex ergo Dei domus est, quæ creditur una. Nunc orant
alii; pugnant; aliique laborant: Quæ tria sunt simul, et scissuram non
patiuntur." St. Bonaventura, quoted by Laurent, _op. cit._ vii.
522:--"Non solum secundum humanam institutionem, sed etiam secundum
divinam dispensationem, inter Christianos sunt domini et servi."]
[Footnote 244: Laurent, _op. cit._ vii. 523.]
[Footnote 245: Laurent, _op. cit._ vii. 524.]
[Footnote 246: Hettner, _Geschichte der französischen Literatur im
achtzehnten Jahrhundert_, p. 169. Babington, _op. cit._ p. 108.
Sugenheim, _op. cit._ p. 156 _sqq._ Laurent, _op. cit._ vii. 537
_sq._]
* * * * *
Not long after serfdom had begun to disappear in the most advanced
communities of Christendom a new kind of slavery was established in
the colonies of European states. It grew up under circumstances
particularly favourable to the employment of slaves. Whether slave
labour or free labour is more profitable to the employer depends on
the wages of the free labourer, and these again depend on the numbers
of the labouring population compared with the capital and the land. In
the rich and underpeopled soil of the West Indies and in the Southern
States of America the balance of the profits between free and slave
labour was on the side of slavery. Hence slavery was introduced there,
and flourished, and could be abolished only with the greatest
difficulty.[247]
[Footnote 247: Mill, _Principles of of Political Economy_, i. 311.]
From a moral point of view negro slavery is interesting chiefly
because it existed in the midst of a highly developed Christian
civilisation, and nevertheless, at least in the British colonies and
the United States, was the most brutal form of slavery ever known. It
may be worth while to consider more closely some points of the
legislation relating to it.
In America, as elsewhere, the state of slavery was hereditary. The
child of a female slave was itself a slave and belonged to the owner
of its mother even if its father was a freeman, whereas the child of a
free woman was {705} free even if its father was a slave.[248] When
the slave-trade was prohibited, heredity remained the only legitimate
source of slavery; but even then a freeborn negro was far from safe.
In the British colonies and in all the Slave States except one, every
negro was presumed to be a slave until he could prove the
reverse.[249] A man who, within the limits of a slave-holding State,
could exhibit a person of African extraction in his custody was
exempted from all necessity of making proof how he had obtained him or
by what authority he claimed him as a slave. Nay more, through the
direct action of Congress it became law that persons known to be free
should be sold as slaves in order to cover the costs of imprisonment
which they had suffered on account of the false suspicion that they
were runaway slaves. This law was repeatedly put into effect. "How
many crowned despots," says Professor von Hoist, "can be mentioned in
the history of the old world who have done things which compare in
accursedness with this law to which the democratic republic gave
birth?"[250]
[Footnote 248: Stroud, _Laws relating to Slavery in the United States
of America_, p. 16 _sqq._ Cobb, _Inquiry into the Law of Negro Slavery
in the United States of America_, p. 68. Stephen, _Slavery of the
British West India Colonies_, i. 122. _Code Noir_, Édit du mois de
Mars 1685, art. 13, p. 35 _sq._; Édit donné au mois de Mars 1724, art.
10, p. 288 _sq._ In Maryland, according to an early enactment, which
obtained till the year 1699 or 1700, all the children born of a slave
were slaves "as their fathers were" (Stroud, _op. cit._ p. 14 _sqq._).
In Cuba the nobler parent determined the rank of the offspring
(Newman, _Anglo-Saxon Abolition of Negro Slavery_, p. 17).]
[Footnote 249: Stephen, _op. cit._ i. 369 _sq._ Stroud, _op. cit._ pp.
125, 126, 130. Cobb, _op. cit._ p. 67. Wheeler, _Treatise on the Law
of Slavery_, p. 5.]
[Footnote 250: von Holst, _Constitutional and Political History of the
United States_, i. 305.]
Slaves were defined as "chattels personal in the hands of their
respective owners or possessors, and their executors, administrators,
and assigns, to all intents and purposes whatsoever."[251] In the
British colonies and the American Slave States they were at all times
liable to be sold or otherwise alienated at the will of their masters,
as absolutely as cattle, or any other personal effects. They were
{706} also liable to be sold by process of law for satisfaction of the
debts of a living, or the debts or bequests of a deceased master, at
the suit of creditors or legatees. They were transmitted by
inheritance or by will to heirs at law or to legatees, and in the
distribution of estates they were distributed like other
property.[252] No regard was paid to family ties. Except in Louisiana,
where children under ten years of age could not be sold separately
from their mothers,[253] no law existed to prevent the violent
separation of parents from their children or from each other.[254] And
what the law did not prevent, the slave-owners did not omit doing;
thus Virginia was known as a breeding place out of which the members
of one household were sold into every part of the country.[255] All
this, however, holds true of the British colonies and Slave States
only. In the Spanish, Portuguese, and French colonies plantation
slaves were real estate, attached to the soil they cultivated. They
partook therewith of all the restraints upon voluntary alienation to
which the possessor of the land was there liable, and they could not
be seized or sold by creditors, for satisfaction of the debts of the
owner.[256] As regards the sale of members of the same family the Code
Noir expressly says, "Ne pourront être saisis et vendus séparément, le
mari et la femme, et leurs enfans impubéres, s'ils sont tous sous la
puissance du même Maître."[257] A slave could make no contract; he
could not even contract marriage, in the juridical sense of the word.
The association which took place among slaves and was called marriage
was virtually the same as the Roman _contubernium_, a relation which
had no sanctity and to which no civil rights were attached.[258] The
master could whenever {707} he liked separate the "husband" and
"wife"; he could, if he pleased, commit "adultery" with the "wife,"
and was the absolute owner of all the children born by her. A slave
had "no more legal authority over his child than a cow has over her
calf." On the other hand, the common rules of sexual morality were not
enforced on the slaves. They were not admonished for incontinence, nor
punished for adultery, nor prosecuted for bigamy. Incontinence was
rather thought a matter of course in the slave. We are told that even
in Puritan New England female slaves in ministers' and magistrates'
families bore children, black or yellow, without marriage, that no one
inquired who their fathers were, and that nothing more was thought of
it than of the breeding of sheep or swine. And concerning the
"slave-quarters" connected with the plantations the universal
testimony was that the sexes were there "herded together
promiscuously, like beasts."[259]
[Footnote 251: Brevard, _Digest of the Public Statute Law of
South-Carolina_, p. 229. Prince, _Digest of the Laws of Georgia_,
p. 777. In the French _Code Noir_ (Édit du mois de Mars 1685, art.
44, p. 49; Édit donné au mois de Mars 1724, art. 40, p. 305)
slaves are declared to be "meubles."]
[Footnote 252: Stephen, _op. cit._ i. 62. Stroud, _op. cit._ p. 84.
Goodell, _American Slave Code in Theory and Practice_, p. 63 _sqq._]
[Footnote 253: Peirce, Taylor, and King, _Consolidation and Revision
of the Statutes of the State_ [_Louisiana_], pp. 523, 550 _sq._]
[Footnote 254: Stephen, _op. cit._ i. 62 _sq._ Stroud, _op. cit._
p. 82.]
[Footnote 255: Pearson, _National Life and Character_, p. 210.]
[Footnote 256: Stephen, _op. cit._ i. 69.]
[Footnote 257: _Code Noir_, Édit du mois de Mars 1685, art. 47, p. 51;
Édit donné au mois de Mars 1724, art. 43, p. 306.]
[Footnote 258: Cobb, _op. cit._ p. 240 _sqq._ Stroud, _op. cit._ p.
99. Goodell, _American Slave Code_, p. 105 _sqq._ Wheeler, _op. cit._
p. 199. According to the Civil Code of Louisiana, "slaves cannot marry
without the consent of their masters, and their marriages do not
produce any of the civil effects which result from such contract"
(Morgan, _Civil Code of Louisiana_, art. 182, p. 29).]
[Footnote 259: Goodell, _American Slave Code_, p. 111. In 1835 the
query was presented to a Baptist Association of ministers, "whether,
in case of involuntary separation of such a character as to preclude
all future intercourse, the parties may be allowed to marry again?"
The answer was, "that such separation among persons situated as our
slaves are, is civilly a separation by death, and they believe that,
in the sight of God, it would be so viewed. To forbid second marriages
in such cases would be to expose the parties not only to greater
hardships and stronger temptations, but to church censure for acting
_in obedience to their masters_." Incidentally here the fact leaks out
that slave cohabitation is enforced by the authority of the masters
for the increase of their human chattels (Goodell, _Slavery and
Anti-Slavery_, p. 185).]
Yet though slaves were regarded as chattels, the master could not do
with his slave exactly what he pleased. We have noticed that the life
of the slave was in some degree, though very insufficiently, protected
by law,[260] and that a master who mutilated his slave was subject to
a slight penalty.[261] The law also took care to prohibit the master
from doing things which were considered injurious to the community or
the State. There was a great fear of teaching negroes to read and
write. William Knox, in a tract addressed to "the venerable Society
for propagation {708} of the Gospel in foreign parts" in the year
1768, remarks that "instruction renders them less fit or less willing
to labour," and that, if they were universally taught to read, there
would undoubtedly be a general insurrection of the negroes leading to
the massacre of their owners.[262] A similar fear underlies the laws
on the subject which we meet with in the codes of some of the Slave
States. According to the Negro Act of 1740 for South Carolina, any
person who instructed a slave in writing was subject to a fine of one
hundred pounds;[263] but this enactment was later on considered too
liberal. A law of 1834 placed under the ban all efforts to teach the
coloured race either reading or writing, and the punishment was no
longer a pecuniary fine only, but, besides, imprisonment for six
months or a shorter time or, if the offender was a free person of
colour, whipping not exceeding fifty lashes.[264] In Georgia a law of
1770, which prohibited the instruction of slaves in reading and
writing, was in 1833 followed by an act which extended the prohibition
to free persons of colour.[265] In Louisiana the teaching of slaves
was punished with imprisonment for not less than one month nor more
than twelve months.[266] North Carolina allowed slaves to be made
acquainted with arithmetical calculations, but sternly interdicted
instruction in reading and writing;[267] whilst Alabama warred with
the rudiments of reading, forbidding any coloured persons, bond or
free, to be taught not only reading and writing, but spelling.[268] In
all these States the prohibitions referred to the master of the slave
as well as to other persons. In Virginia, on the other hand, the
master might teach his slave whatever he liked, but others might
not.[269]
[Footnote 260: _Supra_, p. 428 _sq._]
[Footnote 261: _Supra_, p. 517.]
[Footnote 262: Knox, _Three Tracts respecting the Conversion and
Instruction of the Free Indians and Negroe Slaves in the Colonies_,
p. 15 _sq._]
[Footnote 263: Brevard, _op. cit._ ii. 243.]
[Footnote 264: McCord, _Statutes at large of South Carolina_, vii.
468.]
[Footnote 265: Prince, _op. cit._ pp. 785, 658.]
[Footnote 266: Peirce, Taylor, and King, _op. cit._ p. 552.]
[Footnote 267: _Revised Statutes of North Carolina passed by the
General Assembly at the Session of_ 1836-7, xxxiv. 74, cxi. 27, vol.
i. 209, 578.]
[Footnote 268: Clay, _Digest of the Laws of Alabama_, p. 543.]
[Footnote 269: _Code of Virginia_, cxcviii. 31 _sq._ Stroud, _op.
cit._ p. 142.]
{709} There is yet another point in which the master's power was
restricted in a most unusual way: in many cases he was not allowed to
liberate his slave, or formidable obstacles were put in the way of
manumission. Thus, in North Carolina a slave could formerly not be
enfranchised except for meritorious services;[270] but this enactment
was altered by the Revised Statutes of 1836-1837, according to which
any emancipation granted to any slave "shall be upon the express
condition, that he, she or they will leave the State, within ninety
days from the granting thereof, and never will return within the State
afterwards."[271] The Civil Code of Louisiana required that a slave,
to be emancipated, should have attained the age of thirty years and
behaved well at least for four years preceding the emancipation,
unless, indeed, the slave had saved the life of his master or of one
of his children, in which case he might be set free at any age;[272]
and, according to a statute of 1852, the emancipated slave should be
sent out of the United States within twelve months after his
emancipation.[273] In several other States manumission was likewise
hampered by various regulations;[274] and throughout the British West
Indies there were restraints on manumission prior to the Emancipation
Act.[275] By an act passed in Saint Christopher in the year 1802, a
tax of £1,000 was imposed on the manumission of any slave who was not
a native of, or had not resided for two years within, the island,
whilst natives or residents might be enfranchised at half that price.
But the authors of this act went further still. They considered that a
master, though unwilling to pay £500 or £1,000 for the legal
enfranchisement of a slave, might, during his own life, make him or
her practically free by not exercising his own rights as master. Hence
{710} they enacted "that if any proprietor of a slave should, by any
contract in writing or otherwise, dispense with the slave's service,
or should be proved before a justice of peace not to have exercised
any right of ownership over such slave, and maintained him or her at
his own expense, within a month, the slave should be publicly sold at
vendue by the provost marshall; and should become the property of the
purchaser, and the purchase-money should be paid into the colonial
treasury."[276] In St. Vincents one hundred pounds sterling was
required to be paid into the treasury for each slave sought to be
manumitted,[277] whilst in Barbados a person minded to manumit a slave
should pay £50 to the churchwarden of the parish in which he
resided.[278] Very different were the Spanish laws on the subject of
manumission. According to a law of 1528 a negro slave who had served a
certain length of time was entitled to his liberty upon the payment of
a certain sum, not less than twenty marks of gold, the exact amount to
be settled by the royal authorities.[279] In 1540 a law was issued to
the effect that "if any negro, or negress, or any other persons
reputed slaves, should publicly demand their liberty, they should be
heard, and justice be done to them, and care be taken that they should
not on that account be maltreated by their masters."[280] Nay, a slave
who wished to change his master and could prevail on any other person
to buy him by appraisement, could demand and compel such a
transfer,[281] and a master who treated his slaves inhumanly could be
by the judge deprived of them.[282] In most of the British colonies
and American Slave States, on the other hand, the slave had no legal
right to obtain a change of master when cruel treatment made it
necessary for his relief or preservation.[283] {711} The exceptions to
this rule[284] were few and of little practical value.
[Footnote 270: Stroud, _op. cit._ p. 233.]
[Footnote 271: _Revised Statutes of North Carolina_, cxi. 58, vol. i.
585.]
[Footnote 272: Morgan, _Civil Code of Louisiana_, art. 185 _sq._, p.
30 _sqq._]
[Footnote 273: _Ibid._ Stat. 18th March, 1852, §1, p. 29.]
[Footnote 274: Brevard, _op. cit._ ii. 255 _sq._ (South Carolina).
Prince, _op. cit._ p. 787 (Georgia). Stroud, _op. cit._ p. 231
(Alabama). Alden and van Hoesen, _Digest of the Laws of Mississippi_,
p. 761. Haywood and Cobbs, _Statute Laws of the State of Tennessee_,
i. 327 _sq._]
[Footnote 275: Cobb, _op. cit._ p. 282.]
[Footnote 276: Stephen, _op. cit._ i. 401 _sq._]
[Footnote 277: Cobb, _op. cit._ p. 282 _sq._]
[Footnote 278: Moore, _Public Acts passed by the Legislature of
Barbados_, p. 224 _sq._]
[Footnote 279: Helps, _Spanish Conquest in America_, iv. 373.]
[Footnote 280: _Recopilacion de leyes de los reinos de las Indias_,
vii. 5. 8, vol. ii. 321.]
[Footnote 281: Barre Saint Venant, quoted by Stephen, _op. cit._ i.
119 _sq._]
[Footnote 282: Edwards, _History of the British West Indies_, iv.
451.]
[Footnote 283: Stephen, _op. cit._ i. 106. Stroud, _op. cit._ p. 93.]
[Footnote 284: Morgan, _Civil Code of Louisiana_, art. 192, p. 33.
Morehead and Brown, _Digest of the Statute Laws of Kentucky_, ii.
1481. Edwards, _op. cit._ ii. 192 (Jamaica). Stephen, _op. cit._ i.
106 (some other British colonies). In the French islands a negro who
had been cruelly treated, contrary to royal ordinances, was forfeited
to the crown, and acquired, if not freedom, at least deliverance from
a tyrannical master (_Code Noir_, Édit du mois de Mars 1685, art. 42,
p. 48 _sq._; Édit donné au mois de Mars 1724, art. 38, p. 303 _sq._);
but the Court which adjudged the offence might also decree the
sufferer to be manumitted (Stephen, _op. cit._ i. 119).]
This system of slavery, which at least in the British colonies and the
Slave States surpassed in cruelty the slavery of any pagan country
ancient or modern, was not only recognised by Christian governments,
but was supported by the large bulk of the clergy, Catholic[285] and
Protestant alike. In the beginning of the abolitionist movement the
Churches acknowledged slavery to be a great evil, but with the making
of this acknowledgment they believed that they had done their share,
and denied that there was any obligation on them, or even that they
had any right, to proceed against the slave-holders. But things did
not stop here. The lamentations of resignation were gradually changed
into excuses, and the excuses into justifications.[286] The Bible, it
was said, contains no prohibition of slavery; on the contrary, slavery
is recognised both in the Old and New Testaments. Abraham, the father
of the faithful and the friend of God, had slaves; the Hebrews were
directed to make slaves of the surrounding nations; St. Paul and St.
Peter approved of the {712} relation of master and slave when they
gave admonitions to both as to their reciprocal behaviour; the Saviour
Himself said nothing in condemnation of slavery, although it existed
in great aggravation while He was upon earth. If slavery were sinful,
would it have been too much to expect that the Almighty had directed
at least one little word against it in the last revelation of His
will?[287] Nay, God not only permitted slavery, but absolutely
provided for its perpetuity;[288] it is the very legislation of Heaven
itself;[289] it is an institution which it is a religious duty to
maintain,[290] and which cannot be abolished, because "God is pledged
to sustain it."[291] According to some, slavery was founded on the
judgment of God on a damned race, the descendants of Ham; according to
others, it was only in this way that the African could be raised to a
participation in the blessings of Christianity and civilisation.[292]
With the name of "abolitionist" was thus associated the idea of
infidelity, and the emancipation movement was branded as an attempt to
spread the evils of scepticism through the land.[293] According to
Governor Macduffie, of South Carolina, no human institution is more
manifestly consistent with the will of God than slavery, and every
community ought to punish the interference of abolitionists with
death, without the benefit of clergy, "regarding the authors of it as
enemies of the human race."[294] It is true that religious arguments
were also adduced in favour of abolition. To hold men in bondage was
said to be utterly inconsistent with the inalienable rights which the
Creator had granted mankind, and still more obviously {713} at
variance with the dictates of Christian love.[295] Many clergymen also
joined the abolitionists. But it seems that in the middle of the
nineteenth century the Quakers and the United Brethren were the only
religious bodies that regarded slave-holding and slave-dealing as
ecclesiastical offences.[296] The American Churches were justly said
to be "the bulwarks of American slavery."[297]
[Footnote 285: The attempts to represent the Roman Catholic clergy as
ardent abolitionists (Cochin, _L'abolition de l'esclavage_, ii. 443;
de Locqueneuille, _L'esclavage, ses promoteurs et ses adversaires_, p.
193) are certainly not justified by facts. Among the Catholics of the
United States there were some advocates of emancipation, but their
number was not large (Goodell, _Slavery and Anti-Slavery_, 195 _sq._;
Parker, _Collected Works_, vi. 127 _sq._). Dr. England, the Catholic
bishop of Charleston, South Carolina, undertook in public to prove
that the Catholic Church had always been the uncompromising friend of
slave-holding (Parker, _op. cit._ v. 57). In Brazil it was common for
clergymen not only to possess slaves, but to buy and sell them with as
little scruple as other merchandises (da Fonseca, _A esravidão, o
clero e o abolicionismo_, pp. 28, 33). Bishop Bouvier wrote (_op.
cit._ p. 568):--"Servi autem dominis suis obedire, sortem suam
patienter tolerare et officia sibi imposita fideliter exsequi debent,
quoadusque libertas ipsis concedatur. Meminerint præsentem vitam esse
momentaneam, futuram vero æternam."]
[Footnote 286: von Holst, _op. cit._ ii. 231 _sqq._]
[Footnote 287: Barnes, _The Church and Slavery_, p. 15. Birney,
_Letter to the Churches_, p. 3 _sq._ Bledsoe, _Essay on Liberty and
Slavery_, p. 138 _sqq._ Gerrit Smith, _Letter to Rev. James Smylie_,
p. 3. Cobb, _op. cit._ p. 54 _sqq._ Goodell, _Slavery and
Anti-Slavery_, pp. 154-156, 167, 176, 181, 184, 186, &c. Parker,
_Collected Works_, v. 157.]
[Footnote 288: Thornton, quoted by Goodell, _Slavery and
Anti-Slavery_, p. 147. Fisk, quoted _ibid._ p. 147.]
[Footnote 289: Bledsoe, _op. cit._ p. 138.]
[Footnote 290: Smylie, quoted by Gerrit Smith, _op. cit._ p. 3.]
[Footnote 291: Quoted by Goodell, _Slavery and Anti-Slavery_, p. 347.]
[Footnote 292: Barnes, _op. cit._ p. 16.]
[Footnote 293: _Ibid._ p. 18. Newman, _Anglo-Saxon Abolition of Negro
Slavery_, p. 56. Bledsoe, _op. cit._ p. 223.]
[Footnote 294: Newman, _op. cit._ p. 53. von Holst, _op. cit._ ii.
118, n. 1.]
[Footnote 295: Gurney, _Views and Practices of the Society of
Friends_, p. 390. 'Anti-Slavery Declaration of 1833,' quoted by
Goodell, _Slavery and Anti-Slavery_, p. 398. Birney, _Second Letter_,
p. 1.]
[Footnote 296: Parker, _op. cit._ v. 56.]
[Footnote 297: von Holst, _op. cit._ ii. 230.]
Nobody would suppose that this attitude towards slavery was due to
religious zeal. It was one of those cases, only too frequent in the
history of morals, in which religion is called in to lend its sanction
to a social institution agreeable to the leaders of religious opinion.
Many clergymen and missionaries were themselves slave-holders,[298]
the chapel funds largely rested on slave property,[299] and the
ministers naturally desired to be on friendly terms with the more
important members of their respective congregations, who were commonly
owners of slaves. Adam Smith observes that the resolution of the
Quakers in Pennsylvania to set at liberty all their slaves, was due to
the fact that the principal produce there was corn, the raising of
which cannot afford the expense of slave cultivation; had the slaves
"made any considerable part of their property, such a resolution could
never have been agreed to."[300]
[Footnote 298: Barnes, _op. cit._ p. 13. Goodell, _Slavery and
Anti-Slavery_, pp. 151, 186 _sq._]
[Footnote 299: Newman, _op. cit._ p. 53.]
[Footnote 300: Adam Smith, _Wealth of Nations_, p. 172.]
To explain the establishment of colonial slavery, the difficulties in
the way of its abolition, and the laws relating to it, it is necessary
to consider not only economic conditions and the motive of
self-interest, but, as a factor of equal importance, the want of
sympathy for, or positive antipathy to, the coloured race. The negro
was looked upon almost as an animal, according to some he was a being
without a soul.[301] Even when free he was a pariah, subject to
special laws and regulations. In the Code of {714} Louisiana it is
said:--"Free people of colour ought never to insult or strike white
people, nor presume to conceive themselves equal to the whites; but,
on the contrary, they ought to yield to them on every occasion, and
never speak or answer them but with respect, under the penalty of
imprisonment, according to the nature of the offence."[302] The Code
Noir prohibited white men and women from marrying negroes, "à peine de
punition et d'amende arbitraire";[303] and in the Revised Statutes of
North Carolina we read:--"If any white man or woman, being free, shall
intermarry with an Indian, negro, mustee or mulatto man or woman, or
any person of mixed blood to the third generation, bond or free, he
shall, by judgment of the county court, forfeit and pay the sum of one
hundred dollars to the use of the county."[304] In Mississippi a free
negro or mulatto was legally punished with thirty-nine lashes if he
exercised the functions of a minister of the Gospel.[305] Coloured men
in the North were excluded from colleges and high schools, from
theological seminaries and from respectable churches, as also from the
town hall, the ballot, and the cemetery where white people were
interred.[306] The Anglo-Saxon aversion to the black race is thus
expressed by an English writer:--"We hate slavery, but we hate the
negroes still more."[307] Among the Spaniards and Portuguese racial
antipathies were not so strong, and their slaves were consequently
better treated.[308]
[Footnote 301: von Holst, _op. cit._ i. 279. Malloch, 'How the Church
dealt with Slavery,' in _The Month_, xxvii. 454.]
[Footnote 302: Quoted by Stroud, _op. cit._ p. 157.]
[Footnote 303: _Code Noir_, Édit donné au mois de Mars 1724, art. 6,
p. 286.]
[Footnote 304: _Revised Statutes of North Carolina_, lxxi. 5, vol. i.
386 _sq._]
[Footnote 305: Alden and van Hoesen, _op. cit._ p. 771.]
[Footnote 306: Parker, _op. cit._ v. 58. Goodell _Slavery and
Anti-Slavery_, p. 200.]
[Footnote 307: Seward, quoted by Newman, _Abolition of Negro Slavery_,
p. 54.]
[Footnote 308: Couty, _L'esclavage au Brésil_, p. 8 _sqq_.]
Thus we notice in the opinions regarding slavery throughout the same
distinction as in the judgments on other matters of moral concern. A
person is, as a rule, allowed to enslave or to keep as slaves only
persons belonging to a different community or a different race from
his own, or their descendants. To deprive anybody of his liberty is to
inflict an injury on him, and is regarded as {715} wrong whenever the
act gives rise to sympathetic resentment, whereas nothing is thought
of it where no sympathy is felt for its victim. Thus, whilst slavery
grows up only under economic conditions favourable to slave labour, it
is always limited by feelings of an altruistic character, and where
these feelings are sufficiently broad and powerful it is not tolerated
at all. The same factor also influences the condition of the slaves
where slavery exists. We have seen that native slaves are better
treated than foreign ones and slaves born in the household better than
those who have been captured or purchased. The advancement of a
nation, again, is frequently attended with greater severity in the
treatment of the slaves, because, whilst the simplicity of early ages
admits of little distinction between the master and his servants in
their employments and manner of living, the introduction of wealth and
luxury gradually destroys the equality. Besides, the number of slaves
maintained in a wealthy nation makes them formidable both to their
owners and to the State, hence it is necessary that they should be
strictly watched and kept in the utmost subjection.[309]
[Footnote 309: Millar, _op. cit._ p. 256 _sqq._]
The condition of slaves is in various respects influenced by the
selfish considerations of their masters. Stuart Mill observes:--"When,
as among the ancients, the slave-market could only be supplied by
captives either taken in war, or kidnapped from thinly scattered
tribes on the remote confines of the human world, it was generally
more profitable to keep up the number by breeding, which necessitates
a far better treatment of them, and for this reason, joined with
several others, the condition of slaves . . . was probably much less
bad in the ancient world, than in the colonies of modern
nations."[310] Among the Bedouins, says Burckhardt, "the slaves are
treated with kindness, and seldom beaten, as severity might induce
them to run away."[311] Superstition may also help to {716} improve
the lot of the slave. In West Africa "the authority which a master
exercises over a slave is very much modified by his constitutional
dread of witchcraft. If he treats his slave unkindly, or inflicts
unmerited punishment upon him, he exposes himself to all the
machinations of witchcraft which that slave may be able to
command."[312] It is said in the Proverbs, "Accuse not a servant unto
his master, lest he curse thee, and thou be found guilty."[313] The
same danger threatens the cruel master. We read in the Apostolic
Constitutions, "Thy man-servant or thy maid-servant who trust in the
same God, thou shalt not command with bitterness of spirit; lest they
groan against thee, and wrath be upon thee from God."[314]
[Footnote 310: Mill, _Principles of Political Economy_, i. 307. _Cf._
_supra_, p. 701.]
[Footnote 311: Burckhardt, _Bedouins and Wahábys_, p. 103.]
[Footnote 312: Wilson, _Western Africa_, p. 271. See also _ibid._ p.
179; Cruickshank, _Eighteen Years on the Gold Coast_, ii. 180 _sqq._;
Du Chaillu, _Explorations and Adventures in Equatorial Africa_, p.
331; Landtman, _Origin of Priesthood_, p. 198, n. 2.]
[Footnote 313: _Proverbs_, xxx. 10.]
[Footnote 314: _Constitutiones Apostolicæ_, vii. 13.]
END OF VOL. I
* * * * *
_Printed by_ LOWE & BRYDONE (PRINTERS) LTD., _London, N.W. 1._
* * * * *
THE ORIGIN AND DEVELOPMENT
OF THE MORAL IDEAS
[Macmillan icon]
MACMILLAN AND CO., LIMITED
LONDON . BOMBAY . CALCUTTA
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THE MACMILLAN CO. OF CANADA, LTD.
TORONTO
THE ORIGIN
AND DEVELOPMENT
OF THE
MORAL IDEAS
BY
EDWARD WESTERMARCK
_Ph.D., LL.D._ (_Aberdeen_)
MARTIN WHITE PROFESSOR OF SOCIOLOGY IN THE UNIVERSITY OF
LONDON
PROFESSOR OF MORAL PHILOSOPHY AT THE UNIVERSITY OF FINLAND,
HELSINFORS
AUTHOR OF "THE HISTORY OF HUMAN MARRIAGE," "MARRIAGE CEREMONIES
IN MOROCCO," ETC
IN TWO VOLUMES
VOL. II
_SECOND EDITION_
MACMILLAN AND CO., LIMITED
ST. MARTIN'S STREET, LONDON
1917
_COPYRIGHT_
_First Edition_, 1908
_Second Edition_, 1917
PREFACE
TO THE SECOND EDITION OF VOL. II
WHILE the text of the first edition has been left almost
unchanged, some notes have been added at the end of it.
E. W.
LONDON,
_September_, 1916.
CONTENTS
CHAPTER XXVIII
THE RIGHT OF PROPERTY
The meaning of the term "property," p. 1.--Savages accused of
thievishness, p. 2.--Theft condemned by savages, pp. 2-13.--The
condemnation of theft influenced by the value of the goods stolen,
pp. 13-15.--The stealing of objects of a certain kind
punished with particular severity, p. 14.--The appropriation of a
small quantity of food not punished at all, p. 14 _sq._--Exceptions
to the rule that the punishment of theft is influenced by the
worth or nature of the appropriated property, p. 15.--The degree
of criminality attached to theft influenced by the place where it
is committed, p. 15 _sq._--A theft committed by night punished
more heavily than one committed by day, p. 16.--Distinction made
between ordinary theft and robbery, p. 16 _sq._--Distinction made
between manifest and non-manifest theft, p. 17.--Successful
thieves not disapproved of but rather admired, pp. 17-19.--The
moral valuation of theft influenced by the social position of the
thief and of the person robbed, p. 19 _sq._--Varies according as
the victim is a tribesman or fellow-countryman or a stranger,
pp. 20-25.--The treatment of ship-wrecked people in Europe,
p. 25.--The destruction of property held legitimate in warfare,
p. 25 _sq._--The seizure of private property in war, p. 26
_sq._--Military contributions and requisitions levied upon the
inhabitants of the hostile territory, p. 27.--Proprietary
incapacities of children, p. 27 _sq._--Of women, pp. 28-31.--Of
slaves, pp. 31-33.--The theory that nobody but the chief or king
has proprietary rights, p. 33.
CHAPTER XXIX
THE RIGHT OF PROPERTY (_concluded_)
Acquisition of property by occupation, pp. 35-39.--By keeping
possession of a thing, pp. 39-41.--By labour, pp. 41-43.--By a
transfer of property by its owner, p. 43.--By inheritance, pp.
44-49.--By the fact that ownership in a thing directly follows
from ownership in another thing, p. 49 _sq._--By the custom which
prescribes community of goods, p. 50.--The origin of proprietary
rights and of the various modes of acquisition, pp. 51-57.
--Explanation of the incapacity of children, wives, and
slaves to acquire property, p. 57.--Why the moral judgments vary
with regard to different acts of theft, pp. 57-59.--Theft {viii}
supposed to be avenged by supernatural powers, pp. 59-69.--The
removing of landmarks regarded as sacrilegious, p. 60 _sq._
--Cursing as a method of punishing thieves or compelling
them to restore what they have stolen, p. 62 _sq._--Cursing as a
means of preventing theft, pp. 63-67.--Spirits or gods invoked in
curses referring to theft, p. 66 _sq._--Why gods take notice of
offences against property, pp. 67-69.--The belief that thieves
will be punished after death, p. 69.--The opposition against the
established principles of ownership, pp. 69-71.
CHAPTER XXX
THE REGARD FOR TRUTH AND GOOD FAITH
Definition of lying, p. 72.--Of good faith, _ibid._--The regard
for truth and good faith among uncivilised races, pp. 72-88.
--Foreigners visiting a savage tribe apt to underrate its
veracity, pp. 86-88.--The regard for truth varies according as
the person concerned is a foreigner or a tribesman, p. 87
_sq._--The regard for truth and good faith among the Chinese,
p. 88 _sq._--Among the Japanese, Burmese, and Siamese, p. 89.
--Among the Hindus, pp. 89-92.--In Buddhism, p. 92.--Among the
ancient Persians, p. 93 _sq._--Among Muhammedan peoples, p. 94.
--In ancient Greece, pp. 94-96.--In ancient Rome, p. 96.--Among
the ancient Scandinavians, p. 96 _sq._--Among the ancient Irish,
p. 97.--Among the ancient Hebrews, pp. 97-99.--In Christianity,
pp. 99-101.--In the code of Chivalry, p. 101 _sq._--In the Middle
Ages and later, p. 102 _sq._--In modern Europe, pp. 103-106.--The
views of philosophers, _ibid._--Deceit in the relations between
different states, in peace and war, pp. 106-108.
CHAPTER XXXI
THE REGARD FOR TRUTH AND GOOD FAITH (_concluded_)
Explanation of the moral ideas concerning truthfulness and good
faith, pp. 109-131.--When detected a deception implies a conflict
between two irreconcilable ideas, which causes pain, p. 109.--Men
like to know the truth, p. 109 _sq._--The importance of knowing
the truth, p. 110.--Deception humiliating, _ibid._--A lie or
breach of faith held more condemnable in proportion to the
magnitude of the harm caused by it, _ibid._--The importance of
truthfulness and fidelity even in apparently trifling cases, p.
110 _sq._--Deceit held permissible or obligatory when promoting
the true interest of the person subject to it, p. 111.--The moral
valuation of an act of falsehood influenced by its motive, p. 111
_sq._--The opinion that no motive can justify an act of
falsehood, p. 112.--Why falsehood is held permissible, or
praiseworthy, or obligatory, when directed against a stranger,
_ibid._--Deceit condemned as cowardly, p. 113.--A clever lie
admired or approved of, p. 114.--The duties of sincerity and good
faith to some extent founded on prudential considerations, pp.
114-124.--Lying attended with supernatural danger, _ibid._--A
mystic efficacy ascribed to the untrue word, pp. 116-118.--The
efficacy of oaths and the methods of charging them with
supernatural energy, pp. 118-122.--Oaths containing appeals to
supernatural beings, pp. 120-122.--By being frequently appealed
to in oaths a god may come to be looked upon as a guardian of
veracity and good faith, p. 123.--The influence of oath-taking
upon veracity, p. 123 _sq._--The influence of education upon the
regard for truth, p. 124.--The influence {ix} of habit upon the
regard for truth, p. 125.--Natural to speak the truth, p. 125
_sq._--Intercourse with strangers destructive to savage veracity,
pp. 126-129.--Social incoherence apt to lead to deceitful habits,
p. 129.--Social differentiation a cause of deception, p. 129
_sq._--Oppression an inducement to falsehood, p. 130 _sq._--The
duty of informing other persons of the truth, p. 131.--The regard
for knowledge, pp. 131-136.
CHAPTER XXXII
THE RESPECT FOR OTHER MEN'S HONOUR AND SELF-REGARDING
PRIDE--POLITENESS
Definition of "honour," p. 137.--The feeling of self-regarding
pride in animals, p. 137 _sq._--In savages, pp. 138-140.--The
moral disapproval of insults, pp. 140-142.--The condemnation of
an insult influenced by the _status_ of, or the relations
between, the parties concerned, p. 142 _sq._--Pride disapproved
of and humility praised as a virtue or enjoined as a duty, p. 144
_sq._--Humility an object of censure, p. 145 _sq._--Deviation
from what is usual arouses a suspicion of arrogance, p. 146.
--Politeness a duty rather than a virtue, _ibid._--Many
savages conspicuous for their civility, p. 146 _sq._--Politeness
a characteristic of all the great nations of the East, p. 147
_sq._--The courtesies of Chivalry, p. 148.--The demands of
politeness refer to all sorts of social intercourse and vary
indefinitely in detail, p. 148 _sq._--Salutations, pp. 149-151.
--The rule of politeness most exacting in relation to superiors,
p. 151 _sq._--Politeness shown by men to women, p. 152.
--Politeness shown to strangers, _ibid._
CHAPTER XXXIII
REGARD FOR OTHER PERSONS' HAPPINESS IN GENERAL--GRATITUDE--PATRIOTISM
AND COSMOPOLITANISM
The regard for other persons' happiness in general, p. 153
_sq._--The moral ideas concerning conduct which affects other
persons' welfare influenced by the relationship between the
parties, pp. 154-166.--The feeling of gratitude said to be
lacking in many uncivilised races, pp. 155-157.--Criticism of
statements to this effect, pp. 157-161.--Savages described as
grateful for benefits bestowed on them, pp. 161-165.--Gratitude
represented as an object of praise or its absence as an object of
disapproval, p. 165 _sq._--Why ungratefulness is disapproved of,
p. 166.--The patriotic sentiment defined, p. 167.--Though hardly
to be found among the lower savages, it seems to be far from
unknown among uncultured peoples of a higher type, p. 167
_sq._--Many of the elements out of which patriotism proper has
grown clearly distinguishable among savages, even the lowest, pp.
168-172.--National conceit, pp. 170-174.--The relation between
the national feeling and the religious feeling, p. 174 _sq._--The
patriotism of ancient Greece and Rome, p. 175 _sq._--The moral
valuation of patriotism, p. 176.--Duties to mankind at large, pp.
176-179.--The ideal of patriotism rejected by Greek and Roman
philosophers, p. 177 _sq._--By Christianity, p. 178 _sq._--The
lack of patriotism and national feeling during the Middle Ages,
pp. 179-181.--The development of the national feeling in England,
p. 181 _sq._--In France, p. 182.--The cosmopolitanism of the
eighteenth century, p. 182 _sq._--European patriotism after the
French revolution, p. 183 _sq._--The theory cf nationalism,
p. 184.--The cosmopolitan spirit, p. 184 _sq._
{x} CHAPTER XXXIV
THE ORIGIN AND DEVELOPMENT OF THE ALTRUISTIC SENTIMENT
Maternal affection, pp. 186-189.--Prof. Espinas's theory, p. 186
_sq._--Prof. Bain's theory, p. 187 _sq._--Mr. Spencer's theory,
p. 188.--Distinction between maternal love and the mere love of
the helpless, p. 188 _sq._--The paternal instinct, p. 189
_sq._--Conjugal attachment, pp. 190-192.--The duration of
conjugal attachment, p. 192 _sq._--The duration of parental
affection, p. 193.--Filial affection, p. 194.--Man originally, as
it seems, not a gregarious animal, p. 195 _sq._--How he became
gregarious, p. 196 _sq._--The gregarious instinct, p. 197.
--Social affection, p. 197 _sq._--The evolution of social
aggregates influenced by economic conditions, pp. 198-201.--The
social aggregates of savages who know neither cattle-rearing nor
agriculture, pp. 198-200.--Of pastoral peoples, p. 201.--Of
peoples subsisting on agriculture, _ibid._--Social units based on
marriage or a common descent, p. 201 _sq._--The social force in
kinship, pp. 202-204.--Mr. Hartland's theory, pp. 204-206.--The
blood-covenant, pp. 206-209.--The social influence of a common
cult among savages, pp. 209-213.--The "four generations" of the
Chinese, p. 213.--Traces of a clan organisation in China, p. 213
_sq._--The joint family among so-called Aryan peoples, pp.
214-216.--Village communities, clans, phratries, and tribes among
these peoples, pp. 216-220.--The prevalence of the paternal
system of descent among the peoples of archaic culture, p.
220.--Associations of tribes among uncivilised races, p. 220
_sq._--Civilisation only thrives in states, p. 221 _sq._--The
origin of states p. 222.--The influence of the State upon the
smaller units of which it is composed, p. 222 _sq._--The State
and the notion of a common descent, pp. 223-225.--The archaic
State not only a political but a religious community, p. 225
_sq._--The national importance of a common religion, p. 226.--The
influence of social development upon the altruistic sentiment, p.
226 _sq._--The altruistic sentiment has not necessarily reference
only to individuals belonging to the same social unit, p. 227
_sq._--The expansion of altruism in mankind, p. 228.
CHAPTER XXXV
SUICIDE
Suicide and civilisation, p. 229.--Suicide said to be unknown
among several uncivilised races, p. 229 _sq._--The prevalence of
suicide among savages and barbarians, pp. 230-232.--The causes of
suicide among savages, pp 232-235.--The moral valuation of
suicide among savages, pp. 235-241.--The fate of self-murderers
after death, pp. 235-239.--The treatment of the bodies of
suicides among uncivilised races, pp. 238-240.--The opinions as
to suicide in China, pp. 241-243.--In Japan, p. 243 _sq._--Among
the Hindus, pp. 244-246.--Among Buddhists, p. 246.--Among the
Hebrews, p. 246 _sq._--Among Muhammedans, p. 247.--In ancient
Greece, pp. 247-249.--Among classical philosophers, pp.
248-250.--In ancient Rome, p. 250 _sq._--Among the Christians,
pp. 251-254.--Why suicide was condemned by the Church, pp.
252-254.--The secular legislation influenced by the doctrine of
the Church, p. 254.--The treatment of suicides' bodies in Europe,
pp. 254-257.--More humane feelings towards suicides in the Middle
Ages, p. 257 _sq._--Attacks upon the views of the Church and upon
the laws of the State concerning suicide, pp. 258-260.--Modern
philosophers' arguments against suicide, {xi} p. 260 _sq._--The
legislation on the subject changed, p. 261.--Explanation of the
moral ideas concerning suicide, pp. 261-263.--Criticism of Prof.
Durkheim's opinion as to the moral valuation of suicide in the
future, p. 263 _sq._
CHAPTER XXXVI
SELF-REGARDING DUTIES AND VIRTUES--INDUSTRY--REST
General statements referring to the nature and origin of
self-regarding duties and virtues, pp. 265-268.--Man naturally
inclined to idleness, pp. 268-271.--Among savages either
necessity or compulsion almost the sole inducement to industry,
_ibid._--Savages who enjoin work as a duty or regard industry as
a virtue, p. 271 _sq._--Industrial activity looked down upon as
disreputable for a free man, p. 272 _sq._--Contempt for trade, p.
274. Progress in civilisation implies an increase of industry and
leads to condemnation of idleness, _ibid._--Idleness prohibited
by law in ancient Peru p. 274 _sq._--Industry enjoined in ancient
Persia, p. 275 _sq._--In ancient Egypt, p. 276.--In ancient
Greece, p. 276 _sq._--Greek views on agriculture, p. 277.--On
trade and handicrafts, p. 278 _sq._--Roman views on labour, p.
279 _sq._--The Christian doctrine on the subject, pp. 280-282.
--Not applicable to laymen, p. 282.--Modern views on labour,
p. 282 _sq._--Rest regarded as a duty, p. 283.--Work suspended
after a death, p. 283 _sq._--On certain other occasions,
especially in connection with changes in the moon, pp. 284-286.
--Tabooed days among the peoples of Semitic stock, pp. 286-288.
--The Jewish Sabbath, p. 286 _sq._--The seventh day among
the Assyrians and Babylonians, p. 287 _sq._--The Christian
Sunday, p. 288 _sq._
CHAPTER XXXVII
RESTRICTIONS IN DIET
The gluttony of savages and their views on it, p. 290 _sq._--At
higher stages of culture intemperance often subject to censure,
p. 291.--Views on pleasures of the table, p. 291 _sq._--Fasting
as a means of having supernatural converse or acquiring
supernatural powers, p. 292 _sq._--Abstinence from food before or
in connection with the performance of a magical or religious
ceremony, pp. 293-298.--Fasting prevents pollution, pp. 294-296.
--Sacrificial victims should be clean, and may therefore
have to fast, p. 295 _sq._--Fasting before the performance of a
sacrifice may be due to the idea that it is dangerous or improper
for the worshipper to partake of food before the god has had his
share, pp 296-298.--Fasting after a death, pp. 298-308.--Observed
only in the daytime, p. 299 _sq._--Abstinence from certain
victuals only, pp. 300-302.--Various attempts to explain the
custom of fasting after a death, p. 302 _sq._--Mourners fast for
fear of being polluted by the food, pp. 303-306.--Or because
they, by eating a piece of food, might pollute all victuals
belonging to the same species, p. 306 _sq._--Or because they are
supposed to be in a delicate condition imposing upon them
restrictions in their diet, p. 307 _sq._--Or because grief is
accompanied by a loss of appetite, p. 308.--The Lent fast, p. 308
_sq._--Fasts connected with astronomical changes, pp. 309-315.
--Among the Jews, pp. 310-312.--Among the Harranians and
Manichæans, p. 312 _sq._--The Muhammedan {xii} fast of
Rama[d.]ân, pp. 313-315.--Fasting as a form of penance,
pp. 315-318.--As a survival of an expiatory sacrifice, pp. 316-318.
--Fasting and almsgiving, _ibid._--Fasting "the beginning
of chastity," p. 318.
CHAPTER XXXVIII
RESTRICTIONS IN DIET (_concluded_)
Certain kinds of food forbidden to certain classes of persons,
pp. 319-324.--To young persons, p. 319 _sq._--To women, p. 320
_sq._--To men, p. 321 _sq._--To priests or magicians, p. 322.
--Restrictions in diet connected with totemism, p. 323 _sq._
--Abstinence from animals which excite disgust by their
appearance, p. 324 _sq._--From reptiles, p. 324.--From fish,
p. 324 _sq._--From fowl, p. 325.--From eggs, p. 325 _sq._--From
milk, _ibid._--From animals which are regarded with disgust on
account of their filthy habits or the nasty food on which they
live, pp. 326-328.--From pork, _ibid._--From foreign animals,
p. 327.--From animals which are supposed to be metamorphosed
ancestors or which resemble men, p. 328 _sq._--From animals which
excite sympathy, pp. 329-331.--From beef, p. 330 _sq._--Restrictions
in diet due to the disinclination to kill certain animals for
food or, generally, to reduce the supply of a certain kind of
victuals, pp. 330-332.--Abstinence from domestic animals which
are regarded as sacred, p. 331 _sq._--From food which is believed
to injure him who partakes of it, pp. 332-334.--The sources to
which the general avoidance of certain kinds of food may be
traced, p. 334 _sq._--The moral disapproval of eating certain
kinds of food, p. 335. The moral prohibition sanctioned by
religion, _ibid._--Vegetarianism, pp. 335-338.--Among many
peoples drunkenness so common that it can hardly be looked upon
as a vice, pp. 338-341.--Sobriety or total abstinence from
intoxicating liquors insisted upon by Eastern religions, p. 341
_sq._--Explanation of the moral ideas concerning drunkenness and
the use of alcoholic drink, pp. 342-345.--Wine or spirituous
liquor inspires mysterious fear, p. 344 _sq._--The Muhammedan
prohibition of wine, p. 345.
CHAPTER XXXIX
CLEANLINESS AND UNCLEANLINESS--ASCETICISM IN GENERAL
Man naturally feeling some aversion to filth, p. 346.--Savages
who are praised for their cleanliness, pp. 346-348.--Savages who
are clean in certain respects but dirty in others, p. 348.
--Savages who are described as generally filthy in their
habits, p. 348 _sq._--Various circumstances which may account for
the prevalence of cleanly or dirty habits among a certain people,
pp. 349-351.--The moral valuation of cleanliness, p. 351
_sq._--Cleanliness practised and enjoined from religious or
superstitious motives, pp. 352-354.--In other instances religious
or superstitious beliefs have led to uncleanliness, pp. 354-356.
--Uncleanliness as a form of asceticism, p. 355 _sq._--Ascetic
practices, p. 356 _sq._--The idea underlying religious asceticism
derived from several different sources, pp. 357-363.--Certain
ascetic practices originally performed for another purpose,
p. 358 _sq._--An ascetic practice may be the survival of an earlier
sacrifice, p. 359.--Ascetic practices due to the idea of expiation,
pp. 359-361.--Self-mortification intended to excite divine
compassion, p. 361.--Suffering voluntarily endured with a view to
preventing the commission of sin, pp. 361-363.--The gratification
of earthly desires deemed sinful or disapproved of, _ibid._
{xiii} CHAPTER XL
MARRIAGE
Definition of the term "marriage," p. 364.--The horror of incest
well-nigh universal in the human race, pp. 364-366.--The
prohibited degrees as a rule more numerous among peoples
unaffected by modern civilisation than in more advanced
communities, p. 366.--The violation of the prohibitory rules
regarded by savages as a most heinous crime, p. 366 _sq._--The
horror of incest among nations that have passed beyond savagery
and barbarism, p. 367 _sq._--Attempt to explain the prohibition
of marriage between near kin, pp. 368-371.--Refutation of various
objections raised against the author's theory, pp. 371-378.--
Incestuous unions stigmatised by religion, p. 375 _sq._--Endogamous
rules of various kinds, pp. 378-382.--Marriage by capture, p. 382.
--Marriage by purchase, pp. 382-384.--The disappearance of marriage
by purchase, p. 384 _sq._--The morning gift, p. 385.--The marriage
portion, p. 385 _sq._--The form of marriage influenced by the
numerical proportion between the sexes, p. 387 _sq._--Polyandry,
p. 387.--Group marriage of the Toda type, _ibid._--The causes of
polygyny, pp. 387-389.--Of monogamy, p. 389. Polygyny less prevalent
at the lowest stages of civilisation than at somewhat higher stages,
pp. 389-391.--Civilisation in its higher forms leads to monogamy,
p. 391.--The moral valuation of the various forms of marriage,
p. 392.--The assumed prevalence of group marriage in Australia,
pp. 392-396.--The duration of marriage and the laws of divorce,
pp. 396-398.
CHAPTER XLI
CELIBACY
Marriage considered indispensable among savage and barbarous
races of men, p. 399.--Celibacy a great exception and marriage
regarded as a duty among peoples of archaic culture, pp. 399-403.
--Why celibacy is disapproved of, p. 403 _sq._--Modern views on
celibacy, p. 404 _sq._--Celibacy of persons whose function it is
to perform religious or magical rites, pp. 405-412.--Marriage
looked down upon by the Essenes, p. 410.--By the Christians,
pp. 410-412.--Religious celibacy due to the idea that the priestess
is married to the god whom she is serving, pp. 412-414.--Goddesses
jealous of the chastity of their priests, p. 414.--Religious
celibacy connected with the idea that sexual intercourse is
defiling, pp. 414-420.--Holiness easily destroyed by pollution,
pp. 417-419.--Causes of religious celibacy among the Christians,
p. 420 _sq._--Religious celibacy enjoined or commended as a means
of self-mortification, p. 421.
CHAPTER XLII
FREE LOVE--ADULTERY
Uncivilised peoples among whom both sexes enjoy perfect freedom
previous to marriage, pp. 422-424.--Among whom unchastity before
marriage is looked upon as a disgrace or a crime for a woman, p.
424.--The wantonness of savages in several cases due to foreign
influence, _ibid._--In many tribes the free intercourse which
prevails between unmarried people not of a promiscuous nature,
p. 424 _sq._--Uncivilised peoples among {xiv} whom the man who
seduces a girl is subject to punishment or censure, pp. 425-427.
--Moral opinions as to sexual intercourse between unmarried people
among the Chinese, p. 427.--Among the ancient Hebrews, p. 427 _sq._
--Among Muhammedan peoples, p. 428.--Among the Hindus, _ibid._--In
Zoroastrianism, _ibid._--Among the ancient Teutons, p. 429.--In
ancient Greece and Rome, pp. 429-431.--In Christianity, p. 431 _sq._
--During the Middle Ages, p. 432 _sq._--After the Reformation,
p. 433.--In present Europe, p. 433 _sq._--Explanation of the moral
ideas concerning sexual intercourse between unmarried people,
pp. 434-443.--Prostitution, pp. 441-443.--Religious prostitution,
connected with religious celibacy, p. 443 _sq._--Of the Babylonian
type, pp. 444-446.--Moral opinions as to the seduction of a married
woman, pp. 447-450.--As to unfaithfulness in a wife, p. 450 _sq._
--As to the remarriages of widows, _ibid._--As to unfaithfulness
in a husband, pp. 451-455.
CHAPTER XLIII
HOMOSEXUAL LOVE
Homosexual practices among the lower animals, p. 456.--Among
various races of men, pp. 456-464.--Between women, p. 464
_sq._--The causes of homosexual practices, pp. 465-471.--Congenital
sexual inversion, p. 465 _sq._--Absence of the other sex or lack
of accessible women, p. 466 _sq._--Acquired inversion, pp.
467-470.--Homosexuality in ancient Greece partly due to the
methods of training the youth, p. 469 _sq._--Partly due to the
great gulf which mentally separated the sexes, p. 470
_sq._--Causes of pederasty in China and Morocco, p. 471.--Moral
ideas concerning homosexual practices, pp. 471-489.--Among
uncivilised peoples, pp. 471-475.--Among the ancient Peruvians,
p. 473 _sq._--Among the ancient Mexicans, Mayas, and Chibchas,
p. 474.--Among Muhammedans, p. 475 _sq._--Among the Hindus,
p. 476.--In China, p. 476 _sq._--In Japan, p. 477.--Among the
ancient Scandinavians, p. 477 _sq._--In ancient Greece, p. 478
_sq._--In Zoroastrianism, p. 479 _sq._--Among the ancient
Hebrews, p. 480.--In early Christianity, p. 480 _sq._--In Pagan
Rome, _ibid._--In Christian Rome, p. 481.--European legislation
regarding homosexual practices during the Middle Ages and later,
p. 481 _sq._--Modern legislation on the subject, p. 482
_sq._--Moral ideas concerning it in present Europe, p. 483.--Why
homosexual practices are frequently subject to censure, p. 483
_sq._--Criticism of Dr. Havelock Ellis's suggestion as to the
popular attitude towards homosexuality, pp. 484-486.--The
excessive sinfulness attached to homosexual practices by
Zoroastrianism, Hebrewism, and Christianity, due to the fact that
such practices were intimately associated with unbelief,
idolatry, or heresy, pp. 486-489.
CHAPTER XLIV
REGARD FOR THE LOWER ANIMALS
Animals treated with deference for superstitious reasons, pp.
490-493.--Butchers regarded as unclean, p. 493.--Many peoples
averse from killing their cattle from economic motives, p. 493
_sq._--Domestic animals treated kindly by savages out of
sympathy, pp. 494-496.--Savages who are said to be lacking in
sympathy for the brute creation, {xv} p. 496.--Moral valuation of
men's conduct towards the lower animals among savages, p. 496
_sq._--In Brahmanism, p. 497.--In Buddhism, pp. 497, 498,
500.--In Jainism, p. 498 _sq._--In Taouism, p. 499.--In China,
p. 499 _sq._--In Japan, p. 500.--In Zoroastrianism, p. 501 _sq._
--In Muhammedanism, p. 502 _sq._--In ancient Greece and Rome,
pp. 503-505.--In Hebrewism, p. 505 _sq._--In Christianity,
pp. 506-508.--The views of modern philosophers, p. 508.--Of
legislators, p. 508 _sq._--Indifference to animal suffering a
characteristic of public opinion in European countries up to
quite modern times, p. 509 _sq._--Laws against cruelty to
animals, p. 510.--Humane feelings towards animals in Europe, pp.
510-512.--The crusade against vivisection, pp. 512-514.--Explanation
of the increasing sympathy with animal suffering in Europe,
p. 512 _sq._--The influence of human thoughtlessness upon the
treatment of the lower animals and upon the moral ideas relating
to it, pp. 512-514.
CHAPTER XLV
REGARD FOR THE DEAD
The belief in a future life, p. 515 _sq._--Notions as regards the
disembodied soul, p. 516.--The dead considered to have rights
very similar to those they had whilst alive, pp. 516-520.--The
soul must not be killed or injured, p. 516 _sq._--Its living
friends must positively contribute to its comfort and
subsistence, p. 517 _sq._--The right of ownership does not cease
with death, p. 518 _sq._--Robbery or violation committed at a
tomb severely condemned, _ibid._--Respect must be shown for the
honour and self-regarding pride of the dead, p. 519.--The dead
demand obedience, p. 519 _sq._--The sacredness attached to a
will, p. 519.--The rigidity of ancestral custom, p. 519
_sq._--Duties to the dead that arise from the fact of death
itself, pp. 520-524.--The funeral, the rites connected with it,
and the mourning customs, largely regarded as duties to the dead,
_ibid._--The duties to the dead influenced by the relationship
between the parties, p. 524 _sq._--By the age and sex of the
departed, pp. 525-527.--By class distinctions, p. 527.--By moral
distinctions, p. 527 _sq._--The causes from which the duties to
the dead have sprung, pp 528-549.--These duties partly based on
sympathetic resentment, p. 528.--The dead regarded as guardians
of their descendants, p. 529 _sq._--But the ancestral guardian
spirit does not bestow his favours for nothing, p. 530 _sq._--The
dead more commonly regarded as enemies than friends, pp. 531-534.
--Explanation of the belief in the irritable or malevolent
character of the dead, p. 534 _sq._--The fear of death and the
fear of the dead, pp. 535-538.--The conduct of the survivors
influenced by their beliefs regarding the character, activity,
and polluting influence of the dead, pp. 538-546.--The origin of
funeral and mourning customs, pp. 541-547.--Why practices
connected with death which originally sprang from
self-regarding motives have come to be enjoined as duties, p. 547
_sq._--Why the duties to the dead are rarely extended to
strangers, p. 548 _sq._--Explanation of the differences in the
treatment of the dead which depend upon age, sex, social
position, and moral distinctions, p. 549.--The duties to the
departed become less stringent as time goes on, p. 549 _sq._--The
duties to the dead affected by progress in intellectual culture,
pp. 550-552.--The funeral sacrifice continued as a mark of
respect or affection, p. 550.--Offerings made to the dead become
alms given to the poor, pp. 550-552.
{xvi} CHAPTER XLVI
CANNIBALISM
The prevalence of cannibalism, p. 553.--Various forms of it,
p. 554.--Cannibalism due to scarcity or lack of animal food,
p. 555.--To _gourmandise_ pp. 555-557.--To revenge, pp. 557-559.
--The practice of eating criminals, p. 558 _sq._--Cannibalism
a method of making a dangerous individual harmless after death,
p. 559 _sq._--Due to the idea that the cannibal, by eating the
supposed seat of a certain quality in a person, incorporates it
with his own system, pp. 560-562.--Cannibalism in connection with
human sacrifice, p. 562 _sq._--The eating of man-gods, p. 563
_sq._--Other instances in which a supernatural or medicinal effect
is ascribed to human flesh or blood, pp. 564-566.--Cannibalism as
a covenant rite, p. 566 _sq._--Special reasons given for the
practice of eating relatives or friends, pp. 567-569.--The
cannibalism of modern savages represented as the survival of an
ancient practice which was once universal in the human race,
p. 569 _sq._--Criticism of this theory pp. 570-580.--Savages who
feel the greatest dislike of cannibalism, p. 570 _sq._--Cannibals
often anxious to deny that they are addicted to this practice,
p. 572.--The rapid extinction of it among certain savages p. 572
_sq._--Even among peoples very notorious for cannibalism there
are individuals who abhor it, p. 573.--The aversion to cannibalism
may be due to sympathy for the dead, p. 574.--In the first instance
it is probably an instinctive feeling akin to those feelings which
regulate the diet of the various animal species, _ibid._--The eating
of human flesh regarded with superstitious dread, pp. 574-576.--The
feeling of reluctance may be overcome by other motives and may be
succeeded by a taste for human flesh, p. 577 _sq._--Early man
probably not addicted to cannibalism, pp. 578-580.--Cannibalism
much less prevalent among the lowest savages than among races
somewhat more advanced in culture, p. 578 _sq._--Among some
savages cannibalism known to be of modern origin or to have
spread in recent times, p. 579 _sq._--The moral valuation of
cannibalism, p. 580 _sq._
CHAPTER XLVII
THE BELIEF IN SUPERNATURAL BEINGS
Distinction between "natural" and "supernatural" phenomena, p. 582
_sq._--Supernatural mechanical energy, p. 583 _sq._--Supernatural
qualities attributed to the mental constitution of animate
beings, especially to their will, p. 584.--The difference between
religion and magic, _ibid._--The meaning of the word _religio_,
pp. 584-586.--That mystery is the essential characteristic of
supernatural beings is testified by language, p. 586 _sq._--This
testimony corroborated by facts referring to the nature of such
objects or individuals as are most commonly worshipped, pp.
587-593.--Startling events ascribed to the activity of invisible
supernatural agents, p. 593 _sq._--The origin of animism, p. 594
_sq._--A mind presupposes a body, p. 595 _sq._--The animist who
endows an inanimate object with a soul regards the visible thing
itself as its body, p. 596 _sq._--The origin of anthropomorphism,
p. 597 _sq._--The difference between men and gods, p. 599.
--Materiality at last considered a quality not becoming to a
god, pp. 599-601.
{xvii} CHAPTER XLVIII
DUTIES TO GODS
Definition of the term "god," p. 602.--Gods have the rights to
life and bodily integrity, pp. 602-604.--Not necessarily
considered immortal, p. 602 _sq._--The killing of totemic
animals, p. 603 _sq._--Divine animals killed as a religious or
magical ceremony, pp. 604-606.--The killing of man-gods or divine
kings, pp. 606-610.--The right to bodily integrity granted to
gods occasionally suspended, p. 610.--Supernatural beings
believed to be subject to human needs, p. 610 _sq._--To require
offerings, p. 611 _sq._--Sacrificial gifts offered to
supernatural beings with a view to averting evils, pp. 612-614.
--With a view to securing positive benefits, pp. 614-616.
--Thank-offerings, p. 615 _sq._--Sacrificial victims
intended to serve as substitutes for other individuals, whose
lives are in danger, pp. 616-618.--Occasionally regarded as
messengers, p. 618.--Sacrifices offered for the purpose of
transferring curses, pp. 618-624.--The covenant sacrifice,
pp. 622-624.--The sacrificial victim or offered article a vehicle
for transferring benign virtue to him who offered it or to other
persons, p. 624 _sq._--Sacrifice becomes a symbol of humility and
reverence, p. 625 _sq._--Sacrifice as a duty, p. 626.--Supernatural
beings possess property, and this must not be interfered with,
p. 626 _sq._--Sacred objects must not be appropriated for ordinary
purposes, p. 627 _sq._--The right of sanctuary, pp. 628-638.--Its
prevalence, pp. 628-634.--Explanation of this right, pp. 634-638.
CHAPTER XLIX
DUTIES TO GODS (_concluded_)
Supernatural beings sensitive to insults and disrespect, p. 639
_sq._--Irreverence to gods punished by men, _ibid._--The names of
supernatural beings tabooed, pp. 640-643.--Explanation of these
taboos, p. 642 _sq._--Atheism, p. 643 _sq._--Unbelief, pp.
644-646.--Heresy, p. 646 _sq._--Polytheism by nature tolerant,
pp. 647-649.--The difference in toleration between monotheistic
and polytheistic religions shows itself in their different
attitudes towards witchcraft, pp. 649-652.--The highest stage of
religion free from intolerance, p. 652 _sq._--Prayer a tribute to
the self-regarding pride of the god to whom it is addressed, pp.
653-655.--Prayers connected with offerings, p. 655 _sq._--Magic
efficacy ascribed to prayer, pp. 656-659.--Gods demand obedience,
p. 659.--The influence of this demand upon the history of morals,
p. 659 _sq._--Explanation of the obligatory character attached to
men's conduct towards their gods, pp. 660-662.
CHAPTER L
GODS AS GUARDIANS OF MORALITY
The supernatural beings of savage belief frequently described as
utterly indifferent to all questions of worldly morality, pp.
663-665.--The gods of many savages mostly intent on doing harm to
mankind, pp. 665-667.--Adoration of supernatural beings which are
considered at least occasionally beneficent also very prevalent
among uncivilised peoples, {xviii} pp. 667-669.--Their
benevolence, however, does not prove that they take an active
interest in morality at large, p. 669.--Instances in which savage
gods are supposed to punish the transgression of rules relating
to worldly morality, pp. 669-687.--Savages represented as
believing in the existence of a supreme being who is a moral
law-giver or judge, pp. 670-687.--The prevalence of such a belief
in Australia, pp. 670-675.--In Polynesia and Melanesia,
p. 675.--In the Malay Archipelago, p. 675 _sq._--In the Andaman
Islands, p. 676.--Among the Karens of Burma, p. 677.--In India,
p. 677 _sq._--Among the Ainu of Japan, p. 678.--Among the
Samoyedes, _ibid._--Among the Greenlanders, _ibid._--Among the
North American Indians, pp. 679-681.--Among the South American
Indians, p. 681 _sq._--In Africa, pp. 682-685.--Explanation of
this belief, pp. 685-687.--The supreme beings of savages invoked
in curses or oaths, p. 686 _sq._--The oath and ordeal do not
involve a belief in the gods as vindicators of truth and justice,
pp. 687-690.--The ordeal essentially a magical ceremony,
_ibid._--Ordeals which have a different origin, p. 690.--The
belief in a moral retribution after death among savages,
pp. 690-695.--The sources to which it may be traced, pp. 691-695.
--The influence of religion upon the moral consciousness
of savages, p. 695 _sq._
CHAPTER LI
GODS AS GUARDIANS OF MORALITY (_continued_)
The attitude of religion towards matters of worldly morality in
ancient Mexico, p. 697 _sq._--In ancient Peru, p. 698.--In
ancient Egypt, pp. 698-701.--In ancient Chaldea, pp. 701-704.--In
Zoroastrianism, pp. 704-706.--Among the Vedic people, pp.
706-709.--In post-Vedic times in India, pp. 709-711.--In
Buddhism, p. 711 _sq._--In China, p. 712 _sq._--In ancient
Greece, pp. 713-716.--In ancient Rome, p. 716 _sq._--Among the
Hebrews, p. 717 _sq._--Christian doctrines of salvation and the
future life, pp. 718-725.--The attitude of Muhammedanism towards
matters of worldly morality and its doctrine of the future life,
pp. 725-727.
CHAPTER LII
GODS AS GUARDIANS OF MORALITY (_concluded_)
Explanation of the malevolence of savage gods, p. 728 _sq._--Of
the growing tendency to attribute more amiable qualities to the
gods, pp. 729-731.--Men selecting their gods, p. 729 _sq._--The
good qualities of gods magnified by their worshippers, p. 730
_sq._--How various departments of social morality have come to be
placed under the supervision of gods, p. 731 _sq._--How the
guardianship of gods has been extended to the whole sphere of
justice, p. 732.--How gods have become guardians of morality at
large, p. 733 _sq._--The influence of the religious sanction of
morality, p. 734 _sq._--Religious devotion frequently accompanied
by great laxity of morals, pp. 735-737.--Greater importance
attached to ceremonies or the niceties of belief than to good
behaviour towards fellow men, p. 736 _sq._--The religious
sanction of moral rules often leads to an external observance of
these rules from purely selfish motives, p. 737.--The moral
influence of Christianity, _ibid._
{xix} CHAPTER LIII
CONCLUSION
Recapitulation of the theory of the moral consciousness set forth
in vol. I., pp. 738-741.--This theory supported by the fact that
not only moral emotions but non-moral retributive emotions are
felt with reference to phenomena exactly similar in their general
nature to those on which moral judgments are passed, p.
741.--As also by the circumstance that the very acts, forbearances,
and omissions which are condemned as wrong are also apt to call
forth anger and revenge, and that the acts and forbearances which
are praised as morally good are apt to call forth gratitude, p. 741
_sq._--The variations of the moral ideas partly due to different
external conditions, p. 742.--But chiefly to psychical causes,
pp. 742-746.--The duties to neighbours have gradually become more
expansive owing to the expansion of the altruistic sentiment,
p. 743 _sq._--The influence of reflection upon moral judgments has
been increasing, p. 744 _sq._--The influence of sentimental
antipathies and likings has been decreasing, _ibid._--The
influence which the belief in supernatural forces or beings or in
a future state has exercised upon the moral ideas of mankind,
p. 745 _sq._--Remarks as to the future development of the moral
ideas, p. 746.
ADDITIONAL NOTES . . . pp. 747-754
AUTHORITIES QUOTED . . pp. 755-835
SUBJECT INDEX . . . . pp. 837-865
THE ORIGIN AND DEVELOPMENT OF THE MORAL IDEAS
CHAPTER XXVIII
THE RIGHT OF PROPERTY
THE right of property implies that a certain person or certain
persons are recognised as having a right to the exclusive
disposal of a certain thing. The owner is not necessarily allowed
to do with his property whatever he likes; but whether absolute
or limited, his right to disposal is not shared by anybody else,
save under very exceptional circumstances, as in the case of
"compulsion by necessity."[1] Property in a thing thus means not
only that the owner of it is allowed, at least within certain
limits, to use or deal with it at his discretion, but also that
other persons are forbidden to prevent him from using or dealing
with it in any manner he is entitled to.
[Footnote 1: _Supra_, i. 285 _sqq._]
The most common offence against property is illicit appropriation
of other persons' belongings. Not the mere fact that individuals
are in actual possession of certain objects, but the public
disapproval of acts by which they are deprived of such
possession, shows that they have proprietary rights over those
objects. Hence the universal condemnation of what we call theft
or robbery proves that the right of property exists among all
races of men known to us.
{2} Travellers often accuse savages of thievishness.[2] But then
their judgments are commonly based upon the treatment to which
they have been subject themselves, and from this no conclusions
must be drawn as regards intra-tribal morality. Nor can races who
have had much to do with foreigners be taken as fair
representatives of savage honesty, as such contact has proved the
origin of thievish propensities.[3] In the majority of cases
uncivilised peoples seem to respect proprietary rights within
their own communities, and not infrequently even in their
dealings {3} with strangers. Many of them are expressly said to
condemn or abhor theft, at any rate when committed among
themselves. And that all of them disapprove of it may be inferred
from the universal custom of subjecting a detected thief to
punishment or revenge, or, at the very least, of compelling him
to restore the stolen property to its owner.
[Footnote 2: Beni, 'Notizie sopra gli indigeni di Mexico,' in
_Archivio per l'antropologia e la etnologia_, xii. 15 (Apaches).
Burton, _City of the Saints_, p. 125 (Dacotahs and Prairie
Indians). Powers, _Tribes of California_, p. 127 (Yuki). Macfie,
_Vancouver Island and British Columbia_, p. 468. Heriot, _Travels
through the Canadas_, p. 22 (Newfoundland Eskimo). Coxe, _Russian
Discoveries between Asia and America_, p. 300 (Kinaighi). Georgi,
_Russia_, iv. 22 (Kalmucks), 133 (Buriats). Scott Robertson,
_Káfirs of the Hindu-Kush_, p. 193 _sq._ Modigliani, _Viaggio a
Nías_, p. 468. Powell, _Wanderings in a Wild Country_, p. 23
(South Sea Islanders). Romilly, _From my Verandah in New Guinea_,
p. 50; Comrie, 'Anthropological Notes on New Guinea,' in _Jour.
Anthr. Inst._ vi. 109 _sq._ de Labillardière, _Voyage in Search
of La Pérouse_, i. 275; Moseley, _Notes by a Naturalist on the
"Challenger,"_ p. 391 (Admiralty Islanders). Brenchley, _Jottings
during the Cruise of H.M.S. Curaçoa_, p. 58 (natives of Tutuila).
Lisiansky, _Voyage round the World_, p. 88 _sq._ (Nukahivans).
Williams, _Missionary Enterprises in the South Sea Islands_, p.
126 (natives of Rarotonga). Cooke, _Journal of a Voyage round the
World_, p. 40; Montgomery, _Journal of Voyages and Travels by
Tyerman and Bennet_, ii. 11 (Society Islanders). Barrington,
_History of New South Wales_, p. 22; Breton, _Excursions in New
South Wales_, p. 221; Collins, _Account of the English Colony in
New South Wales_, i. 599 _sq._; Hodgson, _Reminiscences of
Australia_, p. 79; Mitchell, _Expeditions into the Interior of
Eastern Australia_, i. 264, 304; Lumholtz, _Among Cannibals_,
p. 71 _sq._ (Australian tribes). Reade, _Savage Africa_, p. 579
(West African Negroes). Bosman, _Description of the Coast of
Guinea_, p. 324 _sq._ (Negroes of Fida and the Gold Coast).
Caillié, _Travels through Central Africa_, i. 353 (Mandingoes).
Beltrame, _Il Fiume Bianco_, p. 83 (Shilluk). Wilson and Felkin,
_Uganda and the Egyptian Soudan_, ii. 310 (Gowane people of
Kordofan). Krapf, _Travels, Researches and Missionary Labours in
Eastern Africa_, p. 355 (Wakamba). Burton, _Zanzibar_, ii. 92
(Wanika). Bonfanti, 'L'incivilimento dei negri nell' Africa
intertropicale,' in _Archivio per l'antropologia e la etnologia_,
xv. 133 (Bantu races). Arbousset and Daumas, _Exploratory Tour to
the North-East of the Colony of the Cape of Good Hope_, p. 323
(Bechuanas). Andersson, _Lake Ngami_, pp. 468 _sq._ (Bechuanas),
499 (Bayeye). Leslie, _Among the Zulus and Amatongas_, p. 256.
Fritsch, _Die Eingeborenen Süd-Afrika's_, pp. 53 (Kafirs), 372,
419 (Hottentots and Bushmans).]
[Footnote 3: Domenech, _Great Deserts of North America_, ii. 321.
Mackenzie, _Voyages to the Frozen and Pacific Oceans_, p. xcvi.
note (Crees). Burton, _Highlands of the Brazil_, i. 403 _sq._
Moorcroft and Trebeck, _Travels in the Himalayan Provinces_, i.
321 (Ladakhis). Anderson, _Mandalay to Momien_, p. 151
(Kakhyens). Earl, _Papuans_, p. 80. Tyler, _Forty Years among the
Zulus_, p. 192.]
The Fuegians have shown themselves enterprising thieves on board
European vessels visiting their shores;[4] but, when presents
were given to them, a traveller noticed that "if any present was
designed for one canoe, and it fell near another, it was
invariably given to the right owner."[5] The boys are taught by
their fathers not to steal;[6] and in case a theft has been
committed, "quand le coupable est découvert et chatié, l'opinion
publique est satisfaite."[7] In his dealings with the Tehuelches
Lieutenant Musters was always treated with fairness, and the
greatest care was taken of his belongings, though they were
borrowed at times. He gives the following advice to the
traveller:--"Never show distrust of the Indians; be as free with
your goods and chattels as they are to each other. . . . As you
treat them so they will treat you."[8] Among the Abipones doors,
locks, and other things with which civilised men protect their
possessions from thieves, were as unnecessary as they were
unknown; and if children pilfered melons grown in the gardens of
the missionaries or chickens reared in their houses, "they
falsely imagined that these things were free to all, or might be
taken not much against the will of the owner."[9] Among the
Brazilian Indians theft and robbery were extremely rare, and are
so still in places where strangers have not settled.[10] We are
told that the greatest insult which could be offered to an Indian
was to accuse him of stealing, and that the wild women preferred
the epithet of a prostitute to that of a {4} thief.[11] When
detected a thief was not only obliged to restore the property he
had stolen, but was punished with stripes and wounds, the chief
often acting as executioner.[12] Among the Indians of British
Guiana theft and pilfering rarely occur; "if they happen to take
anything, they do it before one's eyes, under the notion of
having some claim to it, which, when called to an account, they
are always prepared to substantiate."[13] If anything is stolen
from his house during his absence, the Guiana Indian thinks that
the missing article has been carried off by people of some other
race than his own.[14] Formerly, when the Caribs lost anything,
they used to say, "The Christians have been here."[15] In Hayti
the punishment of a thief was to be eaten.[16]
[Footnote 4: Weddell, _Voyage towards the South Pole_, pp. 151,
154, 182. King and Fitzroy, _Voyages of the "Adventure" and
"Beagle,"_ i. 128; ii. 188.]
[Footnote 5: Darwin, _Journal of Researches_, p. 242. See also
Snow, 'Wild Tribes of Tierra del Fuego,' in _Jour. Ethn. Soc.
London_, N.S. i. 264.]
[Footnote 6: Bridges, in _A Voice for South America_, xiii.
204.]
[Footnote 7: Hyades and Deniker, _Mission scientifique du Cap
Horn_, vii. 243.]
[Footnote 8: Musters, _At Home with the Patagonians_, pp. 195,
197 _sq._]
[Footnote 9: Dobrizhoffer, _Account of the Abipones_, ii. 148
_sq._]
[Footnote 10: von Martius, _Beiträge zur Ethnographie Amerika's_,
i. 85, 87 _sq._ _Idem_, in _Jour. Roy. Geo. Soc._ ii. 196. von
Spix and von Martius, _Travels in Brazil_, ii. 242. Southey,
_History of Brazil_, i. 247. von den Steinen, _Unter den
Naturvölkern Zentral-Brasiliens_, p. 332. Burton, _Highlands of
the Brazil_, i. 403 _sq._]
[Footnote 11: Burton, _Highlands of the Brazil_, i. 404.]
[Footnote 12: von Martius, _Beiträge_, i. 88. _Idem_, in _Jour.
Roy. Geo. Soc._ ii. 196.]
[Footnote 13: Bernau, _Missionary Labours in British Guiana_,
p. 51.]
[Footnote 14: Brett, _Indian Tribes of Guiana_, p. 348.]
[Footnote 15: Kames, _Sketches of the History of Man_, iv. 133
_sq._]
[Footnote 16: von Martius, _Beiträge_, i. 88, n.*]
It is known that many North American tribes had a very high
standard of honesty among themselves. Domenech wrote:--"The
Indians who do not come in contact with the Palefaces never
appropriate what belongs to others; they have no law against
theft, as it is a crime unknown among them. They never close
their doors."[17] According to Colonel Dodge, theft was the sole
unpardonable crime amongst them; a man found guilty of stealing
even the most trifling article from a member of his own band was
whipped almost to death, deprived of his property, and together
with his wives and children driven away from the band to starve
or live as best he could.[18] Among the Rocky Mountains Indians
visited by Harmon theft was frequently punished with death.[19]
Among the Omahas, "when the suspected thief did not confess his
offence, some of his property was taken from him until he told
the truth. When he restored what he had stolen, one-half of his
own property was returned to him, and the rest was given to the
man from whom he had stolen. Sometimes all of the policemen
whipped the thief. But when the thief fled from the tribe, and
remained away for a year or two, the offence was not
remembered."[20] Among the Wyandots the punishment for theft is
twofold restitution.[21] The Iroquois looked down upon {5} theft
with the greatest disdain, although the lash of public
indignation was the only penalty attached to it.[22] The
Potawatomis considered it one of the most atrocious crimes.[23]
Among the Chippewas Keating found a few individuals who were
addicted to thieving, but these were held in disrepute.[24]
Richardson praises the Chippewyans for their honesty, no
precautions for the safety of his and his companions property
being required during their stay among them.[25] Mackenzie was
struck by the remarkable honesty of the Beaver Indians; "in the
whole tribe there were only two women and a man who had been known
to have swerved from that virtue, and they were considered as
objects of disregard and reprobation."[26] Among the Ahts
"larceny of a fellow-tribesman's property is rarely heard of,
and the aggravation of taking it from the house or person is
almost unknown"; nay, "anything left under an Indian's charge,
in reliance on his good faith, is perfectly safe."[27] The
Thlinkets generally respect the property of their fellow-tribesmen;
but although they admit that theft is wrong they do not regard it
as a very serious offence, which disgraces the perpetrator, and
if a thief is caught he is only required to return the stolen
article or to pay its value.[28] Among the Aleuts "theft was not
only a crime but a disgrace"; for the first offence of this kind
corporal punishment was inflicted, for the fourth the penalty was
death.[29] According to Egede, the Greenlanders had as great an
abhorrence of stealing among themselves as any nation upon
earth;[30] according to Cranz, they considered such an act
"excessively disgraceful."[31] Similar views still prevail among
them, as also among other Eskimo tribes.[32] A Greenlander never
touches driftwood which another {6} has placed above high-water
mark, though it would often be easy to appropriate it without
fear of detection.[33] Parry states that, during his stay at
Igloolik and Winter Island, a great many instances occurred in
which the Eskimo scrupulously returned articles that did not
belong to them, even though detection of a theft, or at least
of the offender, would have been next to impossible.[34]
[Footnote 17: Domenech, _op. cit._ ii. 320.]
[Footnote 18: Dodge, _Our Wild Indians_, pp. 64, 79. _Cf._
Charlevoix, _Journal of a Voyage to North America_, ii. 26, 28
(Hurons).]
[Footnote 19: Harmon, _Voyages and Travels in the Interior of
North America_, p. 348.]
[Footnote 20: Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur.
Ethn._ iii. 367.]
[Footnote 21: Powell, 'Wyandot Government,' in _Ann. Rep. Bur.
Ethn._ i. 66.]
[Footnote 22: Colden, in Schoolcraft, _Indian Tribes of the
United States_, iii. 191. Morgan, _League of the Iroquois_, p.
333 _sq._ Loskiel, _History of the Mission of the United Brethren
among the Indians_, i. 16.]
[Footnote 23: Keating, _Expedition to the Source of St. Peter's
River_, i. 127.]
[Footnote 24: _Ibid._ ii. 168.]
[Footnote 25: Richardson, _Arctic Searching Expedition_, ii. 19 _sq._]
[Footnote 26: Mackenzie, _Voyages to the Frozen and Pacific
Oceans_, p. 148.]
[Footnote 27: Sproat, _Scenes and Studies of Savage Life_, p. 159.]
[Footnote 28: Krause, _Die Tlinkit-Indianer_, p. 167. Holmberg,
'Ethnographische Skizzen über die Völker des russischen Amerika,'
in _Acta Soc. Scient. Fennicæ_, iv. 322. Petroff, _Report on
Alaska_, p. 170. Dall, _Alaska_, p. 416.]
[Footnote 29: Veniaminof, quoted by Petroff, _op. cit._ pp. 155, 152.]
[Footnote 30: Egede, _Description of Greenland_, p. 124. See also
Dalager, _Grønlandske Relationer_, p. 69.]
[Footnote 31: Cranz, _History of Greenland_, 160.]
[Footnote 32: Nansen, _First Crossing of Greenland_, ii. 335. _Idem_,
_Eskimo Life_, p. 158. Rink, _Danish Greenland_, p. 224. Hall,
_Arctic Researches_, pp. 567, 571. Richardson, _Arctic Searching
Expedition_, i. 352. Parry, _Second Voyage for the Discovery of a
North-West Passage_, p. 522; Lyon, _Private Journal_, p. 347 (Eskimo of
Igloolik). Seemann, _Voyage of "Herald,"_ ii. 65 (Western Eskimo).
Nelson, 'Eskimo about Bering Strait,' in _Ann. Rep. Bur. Ethn._ xviii. 293.
Among the Point Barrow Eskimo, however, "men who were said to be thieves
did not appear to lose any social consideration" (Murdoch, 'Ethnological
Results of the Point Barrow Expedition,' in _Ann. Rep. Bur. Ethn._
ix. 41).]
[Footnote 33: Nansen, _Eskimo Life_, p. 162.]
[Footnote 34: Parry, _op. cit._ p. 521.]
Among the Chukchi it is held criminal to thieve "in the family and race to
which a person belongs";[35] and incorrigible thieves are sometimes
banished from the village.[36] In Kamchatka, if anybody was found to be a
thief he was beaten by the person from whom he had stolen, without being
allowed to make resistance, and no one would ever after be friends with
him.[37] The three principal precepts of the Ainu are to honour old age,
not to steal, not to lie;[38] theft is also uncommon among them, and is
severely punished.[39] Among the Kirghiz "whoever commits a robbery on
any of the nation must make restitution to nine times the value."[40]
Among the Tunguses a thief is punished by a certain number of strokes;
he is besidesobliged to restore the things stolen, and remains covered
with ignominy all the rest of his life.[41] The Jakuts,[42]
Ostyaks,[43] Mordvins[44] Samoyedes,[45] and Lapps,[46] are
praised for their honesty, at least among their own people; and
so are the Butias,[47] Kukis,[48] Santals,[49] the hill people in
the Central Provinces of India,[50] and the Chittagong Hill
tribes.[51] The Kurubars of the Dekhan are of such known honesty,
that on all occasions they are entrusted with the custody of
produce by the farmers, who know that they would rather starve
than take one grain of what was given them in {7} charge.[52]
"Honest as a Pahari," is a proverbial expression. In fact, among
these mountaineers theft is almost unknown, and the men "carry
treasures, which to them would be priceless, for days and days,
along wild mountain tracks, whence at any moment they might
diverge, and never be traced. Even money is safely entrusted to
them, and is invariably delivered into the right hands."[53]
Harkness says of the Todás:--"I never saw a people, civilised or
uncivilised, who seemed to have a more religious respect for the
rights of _meum et tuum_. This feeling is taught to their
children from the tenderest age."[54] Among the Chukmas "theft is
unknown."[55] Among the Karens habitual thieves are sold into
slavery.[56] Among the Shans theft of valuable property is
punishable with death, though it may be expiated by a money
payment; but in cases of culprits who cannot pay, or whose
relatives cannot pay, death is looked upon as a fitting
punishment even for petty thefts.[57] At Zimmé, "if a theft is
proved, three times the value of the article is decreed to the
owner; and if not paid, the offender, after suffering
imprisonment in irons, is made over with his family, to be dealt
with as in cases of debt."[58] Among the hill tribes of North
Aracan a person who commits theft is bound to return the property
or its value and pay a fine not exceeding Rs. 30.[59] Among the
Kandhs, on the other hand, the restitution of the property
abstracted or the substitution of an equivalent is alone required
by ancient usage; but this leniency extends to the first offence
only, a repetition of it being followed by expulsion from the
community.[60] The Andaman Islanders call theft a _y[=u]bda_, or
sin.[61] Among those Veddahs who live in their natural state,
theft and robbery are not known at all.[62] They think it
perfectly inconceivable that any person should ever take that
which does not belong to him,[63] and death only would, in their
opinion, be the punishment for such an offence.[64]
[Footnote 35: Georgi, _op. cit._ iii. 183.]
[Footnote 36: Dall, _op. cit._ p. 382.]
[Footnote 37: Steller, _Beschreibung von Kamtschatka_, p. 356.
See also _supra_, i. 311 _sq._]
[Footnote 38: von Siebold, _Die Aino auf der Insel Yesso_, p. 25.]
[Footnote 39: _Ibid._ pp. 11, 34 _sq._ See also _supra_, i. 312.]
[Footnote 40: Georgi, _op. cit._ ii. 262.]
[Footnote 41: _Ibid._ iii. 83 _sq._ _Cf._ _ibid._ iii. 78.]
[Footnote 42: _Ibid._ ii. 397. Sauer, _Expedition to the Northern
Parts of Russia_, p. 122.]
[Footnote 43: Castrén, _Nordiska resor och forskningar_, i. 319.]
[Footnote 44: Georgi, _op. cit._ i. 113.]
[Footnote 45: _Ibid._ iii. 13. von Struve, in _Das Ausland_,
1880, p. 796.]
[Footnote 46: Jessen, _Afhandling om de Norske Finners og Lappers
Hedenske Religion_, p. 72. Castrén, _op. cit._ i. 118 _sq._]
[Footnote 47: Fraser, _Tour through the Him[=a]l[=a] Mountains_,
p. 335.]
[Footnote 48: Lewin, _Wild Races of South-Eastern India_, p. 256.
_Cf._ Butler, _Travels in Assam_, p. 94.]
[Footnote 49: Man, _Sonthalia_, p. 20.]
[Footnote 50: Hislop, _Papers relating to the Aboriginal Tribes
of the Central Provinces_, p. 1.]
[Footnote 51: Lewin, _Wild Races of South-Eastern India_, p. 341.]
[Footnote 52: Buchanan, quoted by Elliot, 'Characteristics of the
Population of Central and Southern India,' in _Jour. Ethn. Soc.
London_, N.S. i. 105.]
[Footnote 53: Cumming, _In the Himalayas_, p. 356.]
[Footnote 54: Harkness, _Description of a Singular Aboriginal
Race inhabiting the Neilgherry Hills_, p. 17 _sq._]
[Footnote 55: Lewin, _Wild Races of South-Eastern India_, p. 188.]
[Footnote 56: Mason, 'Dwellings, &c., of the Karens,' in _Jour.
Asiatic Soc. Bengal_, xxxvii. pt. ii. p. 146 _sq._ Smeaton,
_Loyal Karens of Burma_, p. 86.]
[Footnote 57: Woodthorpe, in _Jour. Anthr. Inst._ xxvi. 21.]
[Footnote 58: Colquhoun, _Amongst the Shans_, p. 131.]
[Footnote 59: St. John, in _Jour. Anthr. Inst._ ii. 241.]
[Footnote 60: Macpherson, _Memorials of Service in India_, p. 82.]
[Footnote 61: Man, in _Jour. Anthr. Inst._ xii. 112.]
[Footnote 62: Sarasin, _Ergebnisse naturwissenschaftlicher
Forschungen auf Ceylon_, iii. 548. Deschamps, _Carnet d'un
voyageur_, p. 385. Nevill, 'Vaeddas of Ceylon,' in _Taprobanian_,
i. 192.]
[Footnote 63: Hartshorne, 'Weddas,' in _Indian Antiquary_, viii. 320.]
[Footnote 64: Sarasin, _op. cit._ iii. 549.]
{8} In the Malay Archipelago native custom punishes theft with a
fine, most frequently equivalent to twice the value of the stolen
article,[65] or with slavery,[66] mutilation,[67] or even
death;[68] and in many islands it was lawful to kill a thief
caught in the act.[69] Among the Malays of Perak,[70] Dyaks,[71]
Kyans,[72] Bataks,[73] and the natives of Ambon and Uliase,[74]
theft is said to be unknown or almost so, at least within their
own communities.
[Footnote 65: Wilken, 'Het strafrecht bij de volken van het
maleische ras,' in _Bijdragen tot de taal- land- en volkenkunde
van Nederlandsch-Indië_, 1883, Land- en volkenkunde, p. 109 _sq._
Crawfurd, _History of the Indian Archipelago_, iii. 117. Marsden,
_History of Sumatra_, pp. 221 (Rejangs), 389 (Bataks). von
Brenner, _Besuch bei den Kannibalen Sumatras_, p. 213 (Bataks).
Junghuhn, _Die Battaländer auf Sumatra_, ii. 145 (Bataks), 308
(natives of Passumah in Central Sumatra), 317 (Timorese), 339
(natives of Bali and Lombok). Modigliani, _op. cit._ p. 496; von
Rosenberg, _Der malayische Archipel_, p. 166 (Niase). Worcester,
_Philippine Islands_, p. 108 (Tagbanuas of Palawan).]
[Footnote 66: Wilken, _loc. cit._ p. 108 _sq._ Junghuhn, _op.
cit._ ii. 145 _sq._ (Bataks). Raffles, _History of Java_, ii. p.
ccxxxv. (people of Bali). Forbes, _A Naturalist's Wanderings in
the Eastern Archipelago_, p. 320 (people of Timor-laut). von
Rosenberg, _op. cit._ p. 166 (Niase).]
[Footnote 67: St. John, _Life in the Forests of the Far East_,
ii. 297 (natives of the kingdom of Borneo, formerly). Low,
_Sarawak_, p. 133. Marsden, _op. cit._ p. 404 (Achinese of
Sumatra). Hickson, _A Naturalist in North Celebes_, p. 198
(Sangirese). Crawfurd, _op. cit._ iii. 107, 115. Crawfurd thinks
(_ibid._ iii. 107) that the punishment of mutilation was
introduced by Muhammedanism.]
[Footnote 68: Crawfurd, _op. cit._ iii. 115 (Javanese) Kükenthal,
_Ergebnisse einer zoologischen Forschungsreise in den Molukken
und Borneo_, i. 188 (Alfura of Halmahera). Marsden, _op. cit._ p.
471 (Poggi Islanders). Among the Bataks (von Brenner, _op. cit._
p. 212) and Achinese of Sumatra (Marsden, _op. cit._ p. 404)
robbery is punished with death.]
[Footnote 69: Wilken, _loc. cit._ p. 88 _sqq._ von Rosenberg,
_op. cit._ p. 166; Modigliani, _op. cit._ p. 496 (Niase).]
[Footnote 70: McNair, _Perak and the Malays_, p. 204.]
[Footnote 71: Boyle, _Adventures among the Dyaks of Borneo_, p.
235. Bock, _Head-Hunters of Borneo_, p. 209. Selenka, _Sonnige
Welten_, p. 19. Ling Roth, _Natives of Sarawak_, i. 81, 82, 92.]
[Footnote 72: Low, _op. cit._ p. 336.]
[Footnote 73: Marsden, _op. cit._ p. 389. Junghuhn, _op. cit._
ii. 148.]
[Footnote 74: Martin, _Reisen in den Molukken_, p. 63.]
Many of the South Sea Islanders have been described as honest
among themselves, and some of them as honest even towards
Europeans.[75] In the opinion of Captain Cook the light-coloured
Polynesians have thievish propensities, but the dark-coloured
not.[76] In the Tonga Islands theft was considered {9} an act of
meanness rather than a crime,[77] whereas in many other islands
it was regarded as a very grave offence.[78] Sometimes the
delinquent was subject to private retaliation,[79] sometimes to a
fine,[80] or blows,[81] or the loss of a finger,[82] or the
penalty of death.[83]
[Footnote 75: Earl, _Papuans_, pp. 49, 80, 105. Seemann, _Viti_,
p. 46 _sq._; Anderson, _Travel in Fiji_, p. 130. Hale, _U.S.
Exploring Expedition. Vol. VI. Ethnography and Philology_, p. 73
(Micronesians). Melville, _Typee_, pp. 294 (Marquesas Islanders),
295 n. 1 (various Polynesians). Williams, _Missionary Enterprises
in the South Sea Islands_, p. 530 (Samoans). von Kotzebue,
_Voyage of Discovery into the South Sea_, iii. 164 (people of
Radack), 255 (Sandwich Islanders). Lisiansky, _op. cit._ p. 125
(Sandwich Islanders). Dieffenbach, _Travels in New Zealand_, ii.
105; Meade, _Ride through the disturbed Districts of New
Zealand_, p. 162 _sq._; Thomson, _Story of New Zealand_, i. 86;
Colenso, _Maori Races_, p. 43. Bonwick, _Daily Life and Origin of
the Tasmanians_, p. 9.]
[Footnote 76: Seemann, _Viti_, p. 47.]
[Footnote 77: Mariner, _Natives of the Tonga Islands_, ii. 162.
In Ponapé (Christian, _Caroline Islands_, p. 72) and among the
Maoris (Meade, _op. cit._ p. 162) thieves are said to be despised.]
[Footnote 78: Earl, _op. cit._ p. 80 (Papuans of Dorey). Ellis,
_Tour through Hawaii_, p. 429; &c.]
[Footnote 79: Turner, _Samoa_, pp. 278 (natives of Humphrey's
Island), 343 (New Caledonians). Lisiansky, _op. cit._ p. 80 _sq._
(Nukahivans). Williams, _Missionary Enterprises_, p. 127 (natives
of Rarotonga). Ellis, _Polynesian Researches_, iv. 420 (Sandwich
Islanders).]
[Footnote 80: Earl, _op. cit._ p. 83 (Papuans of Dorey). Sorge,
in Steinmetz, _Rechtsverhältnisse von eingeborenen Völkern in
Afrika und Ozeanien_, p. 421 (Nissan Islanders of the Bismarck
Archipelago). Williams and Calvert, _Fiji_, p. 22. Turner,
_Samoa_, p. 281 (natives of the Mitchell Group).]
[Footnote 81: Cook, _Journal of a Voyage round the World_, p. 42
(Tahitians). Yate, _Account of New Zealand_, p. 104.]
[Footnote 82: Williams and Calvert, _Fiji_, p. 23.]
[Footnote 83: Gill, _Life in the Southern Isles_, p. 47. Turner,
_Samoa_, pp. 290 (natives of Hudson's Island), 295 (natives of
Arorae), 297 (natives of Nikumau of the Gilbert Group), 300
(natives of Francis Island), 337 (Efatese, of the New Hebrides).
Tutuila, in _Jour. Polynesian Soc._ i. 268 (Line Islanders).
Ellis, _Polynesian Researches_, iv. 421 (Sandwich Islanders).
Cook, _Journal of a Voyage round the World_, p. 41 _sq._
(Tahitians).]
Among the natives of Herbert River, Northern Queensland, there is
"considerable respect for the right of property, and they do not
steal from one another to any great extent. . . . If they hunt
they will not take another person's game, all the members of the
same tribe having apparently full confidence in each other."[84]
When a theft does occur, "the thief is challenged by his victim
to a duel with wooden swords and shields; and the matter is
settled sometimes privately, the relatives of both parties
serving as witnesses, sometimes publicly at the borboby, where
two hundred to three hundred meet from various tribes to decide
all their disputes. The victor in the duel wins in the
dispute."[85] So also among the Dieyerie tribe, "should any
native steal from another, and the offender be known, he is
challenged to fight by the person he has robbed, and this settles
the matter."[86] Of the Bangerang tribe of Victoria we are told
that, amongst themselves, they were scrupulously honest;[87] and,
speaking of West Australian natives, Mr. Chauncy expresses his
belief that "the members of a tribe never pilfer from each
other."[88] In their relations to Europeans, again, Australian
blacks have been sometimes accused of thievishness,[89]
sometimes praised for their {10} honesty.[90] From his own
observation Mr. Curr has no doubt that they feel that theft is
wrong.[91] Of the aborigines of West Australia we are told that
they occasionally speared the sheep and robbed the potato gardens
of the early settlers simply because they did not understand the
settlers' views regarding property, having themselves no separate
property in any living animal except their dogs or in any produce
of the soil. But "only entrust a native with property, and he
will invariably be faithful to the trust. Lend him your gun to
shoot game, and he will bring you the result of his day's sport;
send him a long journey with provisions for your shepherd, and he
will certainly deliver them safely. Entrust him with a flock of
sheep through a rugged country to a distant run, and he and his
wife will take them generally more safely than a white man
would."[92]
[Footnote 84: Lumholtz, _Among Cannibals_, p. 147.]
[Footnote 85: _Ibid._ p. 126.]
[Footnote 86: Gason, in Woods, _Native Tribes of South
Australia_, p. 266.]
[Footnote 87: Curr, _Recollections of Squatting in Victoria_,
p. 298.]
[Footnote 88: Chauncy, in Brough Smyth, _Aborigines of Victoria_,
ii. 278.]
[Footnote 89: _Supra_, ii. 2, n. 1.]
[Footnote 90: Howitt, in Brought Smyth, _op. cit._ ii. 306.
Fraser, _Aborigines of New South Wales_, p. 90.]
[Footnote 91: Curr, _The Australian Race_, i. 100.]
[Footnote 92: Chauncy, in Brough Smyth, _op. cit._ ii. 278.]
"The Arab," says Burckhardt, "robs his enemies, his friends, and
his neighbours, provided that they are not actually in his own
tent, where their property is sacred. To rob in the camp, or
among friendly tribes, is not reckoned creditable to a man; yet
no stain remains upon him for such an action, which, in fact, is
of daily occurrence. But the Arab chiefly prides himself on
robbing his enemies."[93] This, however, seems to hold true only
of Bedouin tribes inhabiting rich pasture plains, who are much
exposed to attacks from others, whereas in more sheltered
territories a person who "attempts to steal in the tents of his
own tribe, is for ever dishonoured among his friends." Thus among
the Arabs of Sinai robberies are wholly unknown; any articles of
dress or of furniture may be left upon a rock without the least
risk of their being taken away.[94] According to Waháby law, a
robber is obliged to return the stolen goods or their value, but
if the offence is not attended with circumstances of violence he
escapes without further punishment, except a fine to the
treasury.[95] Among some Bedouins of [H.]adhramaut theft from a
tribesman is punished with banishment from the tribe.[96] Lady
Anne and Mr. Blunt state that, with regard to honesty, the pure
Bedouin stands in marked contrast to his half-bred brethren.
Whilst the Kurdish and semi-Kurdish tribes of Upper Mesopotamia
make it almost a point of honour to steal, the genuine Arab
accounts theft disgraceful, although he holds {11} highway
robbery to be a right. In the large tribes persons of known
dishonesty are not tolerated.[97]
[Footnote 93: Burckhardt, _Notes on the Bedouins and Wahábys_,
p. 90.]
[Footnote 94: _Ibid._ p. 184 _sq._ Wallin, _Första resa från
Cairo till Arabiska öknen_, p. 64.]
[Footnote 95: Burckhardt, _op. cit._ p. 301.]
[Footnote 96: von Wrede, _Reise in [H.]adhramaut_, p. 51.]
[Footnote 97: Blunt, _Bedouin Tribes of the Euphrates_, ii. 204,
225.]
In Africa honesty between members of the same tribe is no
uncommon characteristic of the native races, and some of them
have displayed the same quality in their dealings with European
travellers.[98] Andersson, for instance, tells us that the
Ovambo, so far as they came under his observation, were strictly
honest and appeared to entertain great horror of theft. "Without
permission," he says, "the natives would not even touch anything;
and we could leave our camp free from the least apprehension of
being plundered. As a proof of their honesty, I may mention,
that, when we left the Ovambo country, the servants forgot some
trifles; and such was the integrity of the people, that
messengers actually came after us a very considerable distance to
restore the articles left behind."[99] A few African peoples are
said to look upon petty larceny almost with indifference.[100]
Among others thieves are only compelled to restore stolen
property, or to return an equivalent for it,[101] but at the same
time they are disgraced or laughed at.[102] In Africa, as
elsewhere, theft is frequently punished with a fine.[103] Thus
{12} among the Bahima,[104] Wadshagga,[105] and Tanala of
Madagascar,[106] thieves are made to pay twice the value of the
stolen goods; among the Takue,[107] Rendile,[108] and
Herero,[109] three times their value; among the Bechuanas double
or fourfold.[110] Among the Taveta, if a man commits a theft, he
has to refund what he has robbed, and five times the value of the
stolen property can be claimed by the person who has suffered the
loss.[111] Among the Kafirs, "in cases of cattle stealing, the
law allows a fine of ten head, though but one may have been
stolen, provided the animal has been slaughtered, or cannot be
restored."[112] Among the Masai, according to Herr Merker, the
fine for stealing cattle is likewise a tenfold one;[113] whilst,
according to another authority, "if a man steals one cow, or more
than one cow, all his property is given to the man from whom he
has stolen."[114] Among the Basukuma all thieves, it seems, are
punished with the confiscation of everything they possess.[115]
Other punishments for theft are imprisonment,[116]
banishment,[117] slavery,[118] flogging,[119] mutilation,[120]
and, especially under aggravating circumstances, death.[121] {13}
In some African countries a thief caught in the act may be killed
with impunity.[122]
[Footnote 98: St. John, _Village Life in Egypt_, ii. 198.
Tristram, _The Great Sahara_, p. 193 _sq._ (Beni Mzab).
Nachtigal, _Sahara und Sudan_, i. 188 (inhabitants of Fezzân).
Dyveyrier, _Exploration du Sahara_, p. 385 (Touareg); _cf._
Chavanne, _Die Sahara_, p. 188. Munzinger, _Ostafrikanische
Studien_, p. 531 _sq._ (Barea and Kunáma). Scaramucci and
Giglioli, 'Notizie sui Danakil,' in _Archivio per l'antropologia
e la etnologia_ xiv. 25. Baumann, _Durch Massailand zur
Nilquelle_, pp. 165 (Masai), 179 (Wafiomi). Thomson, _Through
Masai Land_, p. 64 (Wakwafi of the Taveta). Baker, _Ismailïa_, p.
56; Petherick, _Travels in Central Africa_, ii. 3 (Shilluk).
Macdonald, _Africana_, i. 182 (Eastern Central Africans). Mungo
Park, _Travels in the Interior of Africa_, p. 239; Caillié,
_Travels through Central Africa to Timbuctoo_, i. 353
(Mandingoes). Ward, _Five Years with the Congo Cannibals_, p. 93;
Tuckey, _Expedition to explore the River Zaire_, p. 374.
Johnston, _Uganda Protectorate_, ii. 590 (Wanyoro). Kolben,
_Present State of the Cape of Good Hope_, i. 326; Hahn, _The
Supreme Being of the Khoi-Khoi_, p. 32 (Hottentots); _cf._
Fritsch, _Die Eingeborenen Süd-Afrika's_, p. 307. Tyler, _Forty
Years among the Zulus_, p. 191 _sq._]
[Footnote 99: Andersson, _Lake Ngami_, p. 197. _Cf._ _Idem_,
_Notes on Travel in South Africa_, p. 236.]
[Footnote 100: Monrad, _Skildring af Guinea-Kysten_, p. 6, n.*;
Reade, _Savage Africa_, p. 580 (West African Negroes). Ellis,
_History of Madagascar_, i. 144.]
[Footnote 101: Munzinger, _Ostafrikanische Studien_, pp. 389
(inhabitants of Saraë), 494 (Barea and Kunáma). Arbousset and
Daumas, _op. cit._ p. 66 (Mantetis). Cunningham, _Uganda_, p. 293
(Baziba). Rautanen, in Steinmetz, _Rechtsverhältnisse_, p. 343
(Ondonga). Warner, in Maclean, _Compendium of Kafir Laws and
Customs_, pp. 65, 67. Post, _Afrikanische Jurisprudenz_, ii.
84.]
[Footnote 102: Munzinger, _Ostafrikanische Studien_, pp. 386
(inhabitants of Saraë), 531 (Barea and Kunáma). Arbousset and
Daumas, _op. cit._ p. 66 (Mantetis).]
[Footnote 103: Scaramucci and Giglioli, in _Archivio per
l'antropologia e la etnologia_, xiv. 39 (Danakil). Nachtigal,
_op. cit._ i. 449 (Tedâ). Bosman, _Description of the Coast of
Guinea_, p. 142 (Negroes of Axim, on the Gold Coast). Ellis,
_Tshi-speaking Peoples of the Gold Coast_, p. 303. _Idem_,
_E[(w]e-speaking Peoples of the Slave Coast_, p. 225. _Emin Pasha
in Central Africa_, p. 86 (Wanyoro). Cunningham, _Uganda_, p. 322
(Manyema). Steinmetz, _Rechtsverhältnisse_, p. 52 (Banaka and
Bapuku). Beverley, _ibid._ p. 215 (Wagogo). Lang, _ibid._ p. 259
(Washambala). Wandrer, _ibid._ p. 325 (Hottentots). Post,
_Afrikanische Jurisprudenz_, ii. 85 _sq._]
[Footnote 104: Cunningham, _Uganda_, p. 20.]
[Footnote 105: Volkens, _Der Kilimandscharo_, p. 250.]
[Footnote 106: Richardson, 'Tanala Customs,' in _Antananarivo
Annual_, ii. 95 _sq._]
[Footnote 107: Munzinger, _Ostafrikanische Studien_, p. 208.]
[Footnote 108: Chanler, _Through Jungle and Desert_, p. 317.]
[Footnote 109: François, _Nama und Damara_, p. 174.]
[Footnote 110: Holub, _Seven Years in South Africa_, i. 395.
Casalis, _Basutos_, p. 228.]
[Footnote 111: Hollis, in _Jour. African Soc._ i. 123.]
[Footnote 112: Dugmore, in Maclean, _Compendium of Kafir Laws and
Customs_, p. 36. _Cf._ _ibid._ pp. 112, 143.]
[Footnote 113: Merker, _Die Masai_, p. 208.]
[Footnote 114: Hinde, _The Last of the Masai_, p. 107.]
[Footnote 115: Cunningham, _Uganda_, p. 304.]
[Footnote 116: Mademba, in Steinmetz, _Rechtsverhältnisse_, p. 90
(inhabitants of the Sansanding States).]
[Footnote 117: Chavanne, _Die Sahara_, p. 315 (Beni Mzab).]
[Footnote 118: Bowdich, _Mission to Ashantee_, p. 258, n.*
(Fantis). Petherick, _op. cit._ ii. 3 (Shilluk of the White
Nile). Post, _Afrikanische Jurisprudenz_, ii. 87.]
[Footnote 119: Reade, _Savage Africa_, p. 261 (West Equatorial
Africans). Ellis, _Yoruba-speaking Peoples of the Slave Coast_,
p. 191. Volkens, _op. cit._ p. 250 (Wadshagga). Velten, _Sitten
und Gebräuche der Suaheli_, p. 363. Campbell, _Travels in South
Africa_, p. 519. Post, _Afrikanische Jurisprudenz_, ii. 88.]
[Footnote 120: de Abreu, _Discovery and Conquest of the Canary
Islands_, p. 27 (aborigines of Ferro). Ellis, _Yoruba-speaking
Peoples_, p. 191. Beltrame, _Il Fiume Bianco_, p. 280 (Dinka).
Casati, _Ten Years in Equatoria_, i. 163 (Mambettu and Wanyoro).
Wilson and Felkin, _Uganda and the Egyptian Soudan_, i. 201
(Waganda). Holub, _op. cit._ i. 395 _sq._ (Bechuanas). Post,
_Afrikanische Jurisprudenz_, ii. 87 _sq._]
[Footnote 121: Ellis, _Yoruba-speaking Peoples_, p. 191; Burton,
_Abeokuta_, i. 304 (Yoruba). Ellis, _Tshi-speaking Peoples_,
p. 303. Bosman, _op. cit._ p. 143 (Negroes of Axim). Cunningham,
_Uganda_, pp. 69 (Banabuddu), 102 (Bakoki), 346 (Karamojo).
François, _op. cit._ p. 175 (Herero). Andersson, _Lake Ngami_,
p. 197 (Ovambo). Casalis, _op. cit._ p. 228 (Basutos). Shooter,
_Kafirs of Natal_, p. 155. Tyler, _op. cit._ p. 192 (Zulus).
Kolben, _op. cit._ i. 158 (Hottentots). Post, _Afrikanische
Jurisprudenz_, ii. 88 _sq._]
[Footnote 122: Hübbe-Schleiden, _Ethiopien_, p. 143 (Mpongwe).
Cunningham, _Uganda_, p. 333 (Lendu). Burton, _Zanzibar_, ii. 94
(Wanika). Macdonald, _Africana_, i. 162, 183 (Eastern Central
Africans). Macdonald, 'East Central African Customs,' in _Jour.
Anthr. Inst._ xxii. 109. _Supra_, i. 289.]
The condemnation of theft, in one and the same people, varies in
degree according to a variety of circumstances. It is influenced
by the value of the goods stolen, as appears from the different
punishments inflicted in cases where the value differs.[123]
Thus, when the penalty consists of a fine, its amount is often
strictly proportioned to the loss suffered by the owner, the
thief being compelled to pay twice, or three, or four, or five,
or ten times the worth of the appropriated article.[124] Among
the Aztecs a petty thief became the slave of the person from whom
he had stolen, whilst theft of a large amount was almost
invariably punished with death.[125] According to the Koran,
theft is to be punished by cutting off the offender's right hand
for the first offence; but a Sunneh law ordains that this
punishment shall not be inflicted if the value of the stolen
property is less than a quarter of a deenár.[126] Ancient Scotch
law proportioned the punishment of theft to the value of the
goods stolen, heightening it gradually from a slight corporal to
a capital punishment, if the value {14} amounted to thirty-two
pennies Scots, which in the reign of David I. was the price of
two sheep.[127] In England a distinction was made between "grand"
and "petty larceny," the line between them being drawn at twelve
pence, and grand larceny was capital at least as early as the
time of Edward I.[128] Among various peoples custom or law
punishes with particular severity the stealing of objects of a
certain kind, such as cattle, horses, agricultural implements,
corn, precious metals, or arms.[129] The Negroes of Axim, says
Bosman, "will rather put a man to death for stealing a sheep,
than killing a man."[130] The Kalmucks regard horse-stealing as
the greatest of all crimes.[131] The ancient Teutons held
cattle-lifting and robbery of crops to be particularly
disgraceful.[132] According to Roman law, people who stole an ox
or horse from the pastures or from a stable, or ten sheep, or
four or five swine, might be punished even with death.[133] The
natives of Danger Island, in the South Seas, punished with
drowning anyone who was caught stealing food, "the most valuable
property they knew of."[134] In Tahiti, on the other hand, those
who stole clothes or arms were commonly put to death, whereas
those who stole provisions were bastinadoed.[135] Among other
peoples the appropriation of a small quantity of food belonging
to somebody else is not punished at all.[136] The Masai do not
punish a person for stealing milk or meat.[137] Among the Bakoki
"it was not a crime to steal bananas."[138] In ancient Mexico
"every poor traveller was permitted to {15} take of the maize, or
the fruit-bearing trees, which were planted by the side of the
highway, as much as was sufficient to satisfy immediate
hunger."[139] Among the Hebrews a person was allowed to go into
his neighbour's vineyard and eat grapes at his own pleasure, or
to pluck ears in his field, but the visitor was forbidden to put
any grapes in his vessel or to move a sickle into the standing
corn.[140] It is said in the Laws of Manu that "a twice-born man,
who is travelling and whose provisions are exhausted, shall not
be fined, if he takes two stalks of sugar-cane or two esculent
roots from the field of another man."[141] According to ancient
Swedish laws, a passer-by could take a handful of peas, beans,
turnips, and so forth, from another person's field, and a
traveller could give to his fatigued horse some hay from any barn
he found in the wood.[142] However, whilst the punishment of
theft is commonly, to some extent, influenced by the worth or
nature of the appropriated property, there are peoples who punish
thieves with the same severity whether they have stolen little or
much. Among the North American Indians described by Colonel Dodge
"the value of the article stolen is not considered. The crime is
the theft."[143] Among the Yleou, a Manchurian tribe mentioned by
ancient Chinese chroniclers, theft of any kind was punished with
death.[144] The Beni Mzab in the Sahara sentence a thief to two
years banishment and the payment of fifty francs, independently
of the value of the thing he has stolen.[145]
[Footnote 123: Steinmetz, _Rechtsverhältnisse_, p. 52 (Banaka and
Bapuku). Nicole, _ibid._ p. 133 (Diakité-Sarracolese). Beverley,
_ibid._ p. 215 (Wagogo). Bosman, _op. cit._ p. 142 (Negroes of
Axim). Hinde, _op. cit._ p. 107 (Masai). Post, _Afrikanische
Jurisprudenz_, ii. 91. _Idem_, _Grundriss der ethnologischen
Jurisprudenz_, ii. 420. _Ta Tsing Leu Lee_, sec. cclxix. _sqq._
p. 284 _sqq._ (Chinese). Keil, _Manual of Biblical Archæology_,
ii. 366. _Laws of Manu_, viii. 320 _sqq._ Wilda, _Das Strafrecht
der Germanen_, p. 870 _sqq._; Nordström, _Bidrag till den svenska
samhälls-författningens historia_, ii. 296 _sqq._; Stemann, _Den
danske Retshistorie indtil Christian V.'s Lov_, pp. 621, 677
_sq._; Brunner, _Deutsche Rechtsgeschichte_, ii. 639 _sqq._
(ancient Teutons). Du Boys, _Histoire du droit criminel de
l'Espagne_, p. 721.]
[Footnote 124: _Supra_, ii. 4, 6-8, 12.]
[Footnote 125: Bancroft, _Native Races of the Pacific States_,
ii. 456.]
[Footnote 126: _Koran_, v. 42. Lane, _Manners and Customs of the
Modern Egyptians_, p. 120 _sq._ _Idem_, _Arabian Society in the
Middle Ages_, p. 20. Sachau, _Muhammedanisches Recht_, pp. 810,
811, 825 _sqq._]
[Footnote 127: Erskine, _Principles of the Law of Scotland_, p.
568. Innes, _Scotland in the Middle Ages_, p. 190. Mackintosh,
_History of Civilisation in Scotland_, 231.]
[Footnote 128: Pollock and Maitland, _History of English Law
before the Time of Edward I._ ii. 495 _sq._ Brunner, _Deutsche
Rechtsgeschichte_, ii. 640. Stephen, _History of the Criminal Law
of England_, iii. 129.]
[Footnote 129: Post, _Grundriss der ethnologischen Jurisprudenz_,
ii. 421 _sqq._]
[Footnote 130: Bosman, _op. cit._ p. 143.]
[Footnote 131: Bergmann, _Nomadische Streifereien unter den
Kalmüken_, ii. 297.]
[Footnote 132: Grimm, _Deutsche Rechtsalterthümer_, p. 636 _sq._
Wilda, _op. cit._ p. 875 _sq._ Nordström, _op. cit._ ii. 307.
Brunner, _Deutsche Rechtsgeschichte_, ii. 645 _sq._]
[Footnote 133: _Digesta_, xlvii. 14. 1. pr., 1, 3; xlvii. 14.
3.]
[Footnote 134: Gill, _Life in the Southern Isles_, p. 47.]
[Footnote 135: Cook, _Journal of a Voyage round the World_, p. 41
_sq._]
[Footnote 136: _Supra_, i. 286 _sq._ Post, _Grundriss der ethnol.
Jurisprudenz_, ii. 426. Ellis, _History of Madagascar_, i. 385.]
[Footnote 137: Hollis, _Masai_, p. 310.]
[Footnote 138: Cunningham, _Uganda_, p. 102 _sq._]
[Footnote 139: Clavigero, _History of Mexico_, i. 358.]
[Footnote 140: _Deuteronomy_, xxiii. 24 _sq._]
[Footnote 141: _Laws of Manu_, viii. 341. _Cf._ _ibid._ viii. 339.]
[Footnote 142: Nordström, _op. cit._ ii. 297.]
[Footnote 143: Dodge, _op. cit._ p. 64.]
[Footnote 144: Castrén, _op. cit._ iv. 27.]
[Footnote 145: Chavanne, _Die Sahara_, p. 315.]
The degree of criminality attached to theft also depends on the
place where it is committed. To steal from a house, especially
after breaking the door, is frequently regarded as an aggravated
form of theft.[146] According to Muhammedan {16} law, the
punishment of cutting off the right hand of the thief is
inflicted on him only if the stolen property was deposited in a
place to which he had not ordinary or easy access; hence a man
who steals in the house of a near relative is not subject to this
punishment, nor a slave who robs the house of his master.[147]
Among some peoples a theft committed by night is punished more
heavily than one committed by day.[148]
[Footnote 146: Post, _Grundriss der ethnol. Jurisprudenz_, ii.
423 _sq._ von Rosenberg, _Der malayische Archipel_, p. 166
(Niase). Riedel, _De sluik- en kroesharige rassen tusschen
Selebes en Papua_, p. 103 (Serangese). Lang, in Steinmetz,
_Rechtsverhältnisse_, p. 259. (Washambala). Wilda, _op. cit._ p.
878 _sq._; Brunner, _Deutsche Rechtsgeschichte_, ii. 646 (ancient
Teutonic law). _Digesta_, xlvii. 11. 7; xlvii. 18. 2.]
[Footnote 147: Lane, _Modern Egyptians_, p. 121. _Cf._
Burckhardt, _Bedouins and Wahábys_, p. 301.]
[Footnote 148: Wilken, _loc. cit._ p. 109 (people of Bali).
_Digesta_, xlvii. 17. 1. _Lex Saxonum_, 32, 34; Wilda, _op. cit._
p. 877; Grimm, _Deutsche Rechtsalterthümer_, p. 637; Brunner,
_Deutsche Rechtsgeschichte_, ii. 646 (ancient Teutonic law).]
A distinction is further made between ordinary theft and robbery.
The robber is treated sometimes more severely,[149] sometimes
more leniently than the thief, and is not infrequently regarded
with admiration. Among the Wanyamwezi thieves are despised, but
robbers are honoured, especially by the women, on account of
their courage.[150] In Uganda robbery is not thought shameful,
although it is rigorously punished.[151] In Sindh no disgrace is
attached to larceny when the perpetrators are armed.[152] Among
the Ossetes, "where open robbery has been committed outside a
village, the court merely requires the stolen article or an
equivalent to be restored; but in cases of secret theft, five
times the value must be paid. Robbery and theft within the
boundaries of a village are rated much higher. A proverb says,
'What a man finds on the high-road is God's gift'; and in fact
highway robbery is hardly regarded as a crime."[153] The Kazak
Kirghiz go so far as to consider it almost dishonourable for
a man never to have taken part in a _baranta_, or cattle-lifting
exploit.[154] According to {17} Bedouin notions, there is a clear
distinction between "taking and stealing." To steal is to
abstract clandestinely, "whereas to take, in the sense of
depriving another of his property, generally implies to take
from him openly, by right of superior force."[155] The Arabian
robber, says Burckhardt, considers his profession honourable,
and "the term _haràmy_ (robber) is one of the most flattering
titles that could be conferred on a youthful hero."[156] In
ancient Teutonic law theft and robbery were kept apart; the one
was the secret, the other the open crime. In most law-books
robbery was subject to a milder punishment than theft,
and was undoubtedly regarded as far less dishonourable. Indeed,
however illegal the mode of acquiring property may have been,
publicity was looked upon as a palliation of the offence, if not
as a species of justification, even though the injured party was
a fellow-countryman.[157] This difference between theft and
robbery seems still to have been felt in the thirteenth century,
when Bracton had to argue that the robber is a thief.[158] But in
later times robbery was regarded by the law of England as an
aggravated kind of theft.[159]
[Footnote 149: _Ta Tsing Leu Lee_, sec. cclxviii. p. 283 (Chinese
law). _Digesta_, xlviii. 19. 28. 10. Erskine, _Principles of the
Law of Scotland_, p. 566. Post, _Grundriss der ethnologischen
Jurisprudenz_, ii. 455 _sq._]
[Footnote 150: Reichardt, quoted by Steinmetz, _Rechtsverhältnisse_,
p. 281.]
[Footnote 151: Ashe, _Two Kings of Uganda_, p. 294.]
[Footnote 152: Burton, _Sindh_, p. 195.]
[Footnote 153: von Haxthausen, _Transcaucasia_, p. 411. _Cf._
Kovalewsky, _Coutume contemporaine_, p. 342.]
[Footnote 154: Vámbéry, _Das Türkenvolk_, p. 306. _Cf._ Georgi,
_op. cit._ ii. 270 _sq._ (Kirghiz).]
[Footnote 155: Ayrton, in Wallin, _Notes taken during a Journey
through Part of Northern Arabia_, p. 29, n. [double dagger] (in
_Jour. Roy. Geo. Soc._ xx. 317, n. [double dagger]).]
[Footnote 156: Burckhardt, _Bedouins and Wahábys_, p. 90. _Cf._
Burton, _Pilgrimage to Al-Madinah & Meccah_, ii. 101; Blunt, _op.
cit._ ii. 204 _sq._]
[Footnote 157: Wilda, _op. cit._ pp. 860, 911, 914. Grimm,
_Deutsche Rechtsalterthümer_, p. 634 _sq._ Nordström, _op. cit._
ii. 314 _sq._ Maurer, _Bekehrung des Norwegischen Stammes_, ii.
173 _sq._ Brunner, _Deutsche Rechtsgeschichte_, ii. 647 _sq._
Thrupp, _The Anglo-Saxon Home_, p. 288. Pollock and Maitland,
_op. cit._ ii. 493 _sq._]
[Footnote 158: Bracton, _De Legibus et Consuetudinibus Angliæ_,
fol. 150 b, vol. ii. 508 _sqq._ Pollock and Maitland, _op. cit._
ii. 494.]
[Footnote 159: Coke, _Third Part of the Institutes of the Laws of
England_, p. 68. Blackstone, _Commentaries on the Laws of
England_, iv. 252. Stephen, _History of the Criminal Law of
England_, iii. 149. Pollock and Maitland, _op. cit._ ii. 493.
_Cf._ Wilda, _op. cit._ p. 914.]
A line has been drawn between manifest and non-manifest theft.
Among many peoples thieves who are caught in the act may be
killed with impunity,[160] or are punished much more heavily than
other thieves, frequently with death.[161] We also hear that the
worst part of the offence {18} consists in being detected, and
that a successful thief is admired rather than disapproved of.
[Footnote 160: _Supra_, i. 293; ii. 8, 13. Brunner, _Deutsche
Rechtsgeschichte_, ii. 642. Post, _Grundriss der ethnologischen
Jurisprudenz_, ii. 441 _sq._]
[Footnote 161: Mommsen, _Römisches Strafrecht_, p. 750 _sq._ Du
Boys, _Histoire du droit criminel de l'Espagne_, p. 378. Brunner,
_Deutsche Rechtsgeschichte_, ii. 642 _sq._; Dareste, _Études
d'histoire du droit_, p. 299 _sq._ Pollock and Maitland, _op.
cit._ ii. 495 (ancient Teutonic law). Post, _Grundriss der
ethnologischen Jurisprudenz_, ii. 443.]
It is said of the Navahos that "the time is evidently not long
gone by when with them, as among the Spartans, adroit theft was
deemed honourable."[162] Among the Californian Yuki "thieving is
a virtue . . . , provided the thief is sly enough not to get
caught."[163] The Ahts "have a tendency to sympathise with some
forms of theft, in which dexterity is required."[164] Among the
Thlinkets "theft does not seem to be considered a disgrace; the
detected thief is at most ashamed of his want of skill."[165] The
Chukchi "have but a bad opinion of a young girl who has never
acquitted herself cleverly in some theft; and without such
testimony of her dexterity and address she will scarcely find a
husband."[166] In Mongolia "known thieves are treated as
respectable members of society. As long as they manage well and
are successful, little or no odium seems to attach to them; and
it is no uncommon thing to hear them spoken of in terms of high
praise. Success seems to be regarded as a kind of palliation of
their crimes."[167] Among the Kukis, according to early notices,
the accomplishment most esteemed was dexterity in thieving,
whilst the most contemptible person was a thief caught in the
act.[168] The Persians say that "it is no shame to steal, only to
be found out."[169] The same view seems to be held by the Motu
tribe of New Guinea,[170] the natives of Tana (New
Hebrides),[171] the Maoris,[172] and several African
peoples.[173] In Fiji "success, without discovery, is deemed
quite enough to make thieving virtuous, and a participation in
the ill-gotten gain honourable."[174] Among the Matabele {19} "the
thief is not despised because he has stolen, but because he has
allowed himself to be caught, and if his crime remains undetected
he is admired by all."[175] Among the aborigines of Palma, in the
Canary Islands, "he was esteemed the cleverest fellow who could
steal with such address as not to be discovered."[176]
[Footnote 162: Matthews, 'Study of Ethics among the Lower Races,'
in _Journal of American Folk-Lore_, xii. 4.]
[Footnote 163: Powers, _Tribes of California_, p. 133.]
[Footnote 164: Sproat, _op. cit._ p. 158 _sq._]
[Footnote 165: Krause, _op. cit._ p. 167.]
[Footnote 166: Georgi, _op. cit._ iii. 183. Krasheninnikoff,
_History of Kamschatka_, p. 232.]
[Footnote 167: Gilmour, _Among the Mongols_, p. 291.]
[Footnote 168: Dalton, _Descriptive Ethnology of Bengal_, p. 45.]
[Footnote 169: Polak, _Persien_, ii. 81.]
[Footnote 170: Stone, _A few Months in New Guinea_, p. 95.]
[Footnote 171: Brenchley, _op. cit._ p. 208.]
[Footnote 172: Shortland, _Traditions and Superstitions of the
New Zealanders_, p. 224. Waitz-Gerland, _Anthropologie der
Naturvölker_, vi. 224. Dieffenbach _Travels in New Zealand_,
ii. 111.]
[Footnote 173: Zöller, _Forschungsreisen in der deutschen Colonie
Kamerun_, ii. 64 (Dualla). Wilson and Felkin, _op. cit._ i. 224
(Waganda). Leslie, _op. cit._ p. 256 (Amatongas).]
[Footnote 174: Williams and Calvert, _op. cit._ p. 110.]
[Footnote 175: Decle, _Three Years in Savage Africa_, p. 165.]
[Footnote 176: de Abreu, _op. cit._ p. 138.]
The moral valuation of theft varies according to the social
position of the thief and of the person robbed. Among the Marea
a nobleman who commits theft is only obliged to restore the
appropriated article; but if a commoner steals from another
commoner, the whole of his property may be confiscated by the
latter's master, and if he steals from a nobleman he becomes the
nobleman's serf.[177] Among the Káfirs of the Hindu-Kush the
penalty for theft is theoretically a fine of seven or eight times
the value of the thing stolen; "but such a punishment in ordinary
cases would only be inflicted on a man of inferior mark, unless
it were accompanied by circumstances which aggravated the
original offence."[178] In Rome, according to an old law, a
freeman caught in the act of thieving was scourged and delivered
over to the party aggrieved, whereas a slave in similar
circumstances was scourged and then hurled from the Tarpeian
rock;[179] and according to an enactment of Hadrian, the
punishment for stealing an ox or horse from the pastures or from
a stable was only relegation if the offender was a person of
rank, though ordinary persons might have to suffer death for the
same offence.[180] In ancient India, on the other hand, the
punishment increased with the rank of the criminal. According to
the Laws of Manu, "in a case of theft the guilt of a Sûdra shall
be eightfold, that of a Vaisya sixteenfold, that of a Kshatriya
two-and-thirtyfold, that of a Brâhmana sixty-fourfold, or quite
a hundredfold, or even twice four-and-sixtyfold; each of them
knowing the nature {20} of the offence."[181] In other cases,
again, the degree of guilt is determined by the station of the
person robbed.[182] Among the Gaika tribe of the Kafirs, for
instance, the fine by which a theft is punished "is fixed
according to the rank of the person against whom the offence is
committed, confiscation of property being the general punishment
imposed for offences against chiefs."[183] Among many other
peoples theft or robbery committed on the property of a chief or
king is treated with exceptional severity.[184] Sometimes
difference in religion affects the criminality of the thief.
According to modern Buddhism, "to take that which belongs to a
sceptic is an inferior crime, and the guilt rises in magnitude in
proportion to the merit of the individual upon whom the theft is
perpetrated. To take that which belongs to the associated
priesthood, or to a supreme Buddha, is the highest crime."[185]
But the commonest and most important personal distinction
influencing the moral valuation of theft and robbery is that
between a tribesman or fellow-countryman and a stranger.
[Footnote 177: Munzinger, _Ostafrikanische Studien_, p. 243 _sq._]
[Footnote 178: Scott Robertson, _Káfirs of the Hindu-Kush_, p. 440.]
[Footnote 179: Mommsen, _Römisches Strafrecht_, p. 751.]
[Footnote 180: _Digesta_, xlvii. 14. 1. pr., 3.]
[Footnote 181: _Laws of Manu_, viii. 337 _sq._]
[Footnote 182: Crawfurd, _op. cit._ iii. 115 (Javanese).
Desoignies, in Steinmetz, _Rechtsverhältnisse_, p. 281 (Msalala).
Maclean, _Compendium of Kafir Laws and Customs_, p. 143.]
[Footnote 183: Brownlee, in Maclean, _op. cit._ p. 112.]
[Footnote 184: Ellis, _Tour through Hawaii_, p. 429 _sq._ Ellis,
_E[(w]e-speaking Peoples of the Slave Coast_, p. 225 (Dahomans).
Decle, _Three Years in Savage Africa_, p. 73. Post, _Afrikanische
Jurisprudenz_, ii. 91. _Laws of Æthelbirht_, 4, 9 (Anglo-Saxons).]
[Footnote 185: Hardy, _Manual of Budhism_, p. 483.]
Among uncivilised races intra-tribal theft is carefully
distinguished from extra-tribal theft. Whilst the former is
forbidden, the latter is commonly allowed, and robbery committed
on a stranger is an object of praise.[186]
[Footnote 186: _Cf._ Tylor, 'Primitive Society,' in _Contemporary
Review_, xxi. 715 _sq._; _Anthropology_, p. 413 _sq._]
The Tehuelches of Patagonia, "although honest enough as regards
each other, will, nevertheless, not scruple to steal from any one
not belonging to their party."[187] The Abipones, who never took
anything from their own countrymen, "used to rob and murder the
Spaniards whilst they thought them their enemies."[188] Among the
Mbayás the law, Thou shalt not steal, "applies only to tribesmen
and {21} allies, not to strangers and enemies."[189] The high
standard of honesty which prevailed among the North American
Indians did not refer to foreigners, especially white men, whom
they thought it no shame to rob or cheat.[190] "A theft from an
individual of another band," says Colonel Dodge, "is no crime. A
theft from one of the same band is the greatest of all
crimes."[191] Among the Californian Indians, for instance, who
are proverbially honest in their own neighbourhood, "a stranger
in the gates who seems to be friendless may lose the very
blankets off him in the night."[192] Among the Ahts thieving "is
a common vice where the property of other tribes, or white men,
is concerned."[193] Of the Dacotahs we read that, though the men
think it undignified for them to steal even from white people,
"they send their wives thus unlawfully to procure what they
want."[194] Of the Greenlanders the old missionary Egede
writes:--"If they can lay hands upon any thing belonging to us
foreigners, they make no great scruple of conscience about it.
But, as we now have lived some time in the country amongst them,
and are look'd upon as true inhabitants of the land, they at last
have forborne to molest us any more that way."[195] Another early
authority states, "If they can purloin or even forcibly seize the
property of a foreigner, it is a feather in their cap";[196] and,
according to Dr. Nansen, it is still held by the Greenlanders "to
be far less objectionable to rob Europeans than their own
fellow-countrymen."[197] Many travellers have complained of the
pilfering tendencies of Eskimo tribes with whom they have come
into contact.[198] Richardson believes that, in the opinion of an
Eskimo, "to steal boldly and adroitly from a stranger is an act
of heroism."[199] Of the Eskimo about Behring Strait Mr. Nelson
writes:--"Stealing from people of the same village or tribe is
regarded as wrong. . . . To steal from a stranger or from people
of another tribe is not considered wrong so long as it does not
bring trouble on the community."[200]
[Footnote 187: Musters, _op. cit._ p. 195.]
[Footnote 188: Dobrizhoffer, _op. cit._ ii. 148.]
[Footnote 189: Tylor, in _Contemporary Review_, xxi. 716.]
[Footnote 190: _Ibid._ p. 716.]
[Footnote 191: Dodge, _op. cit._ p. 79.]
[Footnote 192: Powers, _Tribes of California_, p. 410 _sq._]
[Footnote 193: Sproat, _op. cit._ p. 159. _Cf._ Macfie,
_Vancouver Island and British Columbia_, p. 468.]
[Footnote 194: Eastman, _Dacotah_, p. xvii.]
[Footnote 195: Egede, _op. cit._ p. 124 _sq._]
[Footnote 196: Cranz, _op. cit._ i. 175. See also Dalager, _op.
cit._ p. 69.]
[Footnote 197: Nansen, _First Crossing of Greenland_, ii. 335
_sq._ _Cf._ _Idem_, _Eskimo Life_, p. 159 _sq._]
[Footnote 198: Murdoch, 'Ethnological Results of the Point Barrow
Expedition,' in _Ann. Rep. Bur. Ethn._ ix. 41. Seemann, _Voyage
of "Herald,"_ ii. 65; Armstrong, _Discovery of the North-West
Passage_, p. 196 (Western Eskimo).]
[Footnote 199: Richardson, _Arctic Searching Expedition_, i. 352.]
[Footnote 200: Nelson, in _Ann. Rep. Bur. Ethn._ xviii. 293.]
{22} The Chukchi[201] and Koriaks[202] consider theft reputable or
glorious if committed on a stranger, though criminal if committed
in their own communities. The hill people of the Central
Provinces of India, whilst observant of the rights of property
among themselves, do not scruple to plunder those to whom they
are under no obligation of fidelity.[203] The Bataks of Sumatra,
who hardly ever steal among themselves, are expert at pilfering
from strangers when not restrained by the laws of hospitality,
and think it no moral offence to do so.[204] Other tribes in the
Malay Archipelago likewise hold it allowable to plunder the same
stranger or traveller who, when forlorn and destitute, would find
a hospitable reception among them.[205] "The strict honesty,"
says Mr. Melville, "which the inhabitants of nearly all the
Polynesian Islands manifest towards each other is in striking
contrast with the thieving propensities some of them evince in
their intercourse with foreigners. It would almost seem that,
according to their peculiar code of morals, the pilfering of a
hatchet or a wrought nail from a European is looked upon as a
praiseworthy action. Or rather, it may be presumed, that, bearing
in mind the wholesale forays made upon them by their nautical
visitors, they consider the property of the latter as a fair
object of reprisal."[206] In Fiji theft is regarded as no offence
at all when practised on a foreigner.[207] The Savage Islanders
consider theft from a tribesman a vice, but theft from a member
of another tribe a virtue.[208] Of the Sandwich Islanders, again,
we are told that they stole from rich strangers on board well
loaded ships, whereas Europeans settled among them left their
doors and shops unlocked without apprehension.[209] Speaking of
the honesty of the Herbert River natives, Northern Queensland,
Mr. Lumholtz adds:--"It is, of course, solely among members of
the same tribe that there is so great a difference between mine
and thine; strange tribes look upon each other as wild
beasts."[210] The aborigines of West Australia "would not
consider the act of pillaging base when practised on another
people, or carried on beyond the limits of their own tribe."[211]
[Footnote 201: Georgi, _op. cit._ iii. 183.]
[Footnote 202: _Ibid._ iii. 170. Krasheninnikoff, _op. cit._ p. 232.]
[Footnote 203: Hislop, _op. cit._ p. 1.]
[Footnote 204: Marsden, _op. cit._ p. 389.]
[Footnote 205: Crawfurd, _op. cit._ i. 72.]
[Footnote 206: Melville, _Typee_, p. 295, n. 1. See also
Williams, _Missionary Enterprises_, p. 530 (Samoans); Hale, _op.
cit._ p. 73 (Micronesians).]
[Footnote 207: Williams and Calvert, _op. cit._ p. 110.]
[Footnote 208: Thomson, _Savage Island_, p. 94.]
[Footnote 209: von Kotzebue, _op. cit._ iii. 255.]
[Footnote 210: Lumholtz, _Among Cannibals_, p. 148.]
[Footnote 211: Chauncy, in Brough Smyth, _op. cit._ ii. 278 _sq._]
Among the For tribe of Central Africa "it is not considered {23}
right to rob strangers, but the chiefs wink at this offence, and
the stranger runs but a poor chance of obtaining justice."[212]
Of the Mandingoes Caillié observes that, while they do not steal
from each other, "their probity with respect to others is very
equivocal and in particular towards strangers, who would be very
imprudent to shew them any thing that might tempt their
cupidity."[213] When an Eastern Central African is plundered by a
companion, he may be heard exclaiming, "If you had stolen from a
white man, then I could have understood it, but to steal from a
black man----."[214] Among the Masai the warriors and old men
have a profound contempt for a thief, but "cattle-raiding from
neighbouring tribes they do not consider stealing."[215] The
Wafiomi[216] and Shilluk[217] regard theft or robbery committed
on a stranger as a praiseworthy action, though they never or rarely
practise it on members of their own people. The Barea and Kunáma[218]
and the inhabitants of Saraë[219] consider it honourable for a man
to rob an enemy of his tribe. The Kabyles of Djurdjura, who demand
strict mutual honesty from members of the same village, see nothing
wrong in stealing from a stranger.[220] Among the Bedouins "travellers
passing without proper escort from or introduction to the tribes,
may expect to lose their beasts, goods, clothes, and all they
possess. There is no kind of shame attached to such acts of
rapine. . . . By desert law, the act of passing through the
desert entails forfeiture of goods to whoever can seize
them."[221] Indeed, the Arab is proud of robbing his enemies, and
of bringing away by stealth what he could not have taken by open
force.[222] The Ossetes "distinguent . . . le vol commis au
préjudice d'une personne étrangère à la famille, et le vol commis
au préjudice d'un parent. Le premier, à proprement parler, n'est
pas un acte criminel; le second, au contraire, est tenu pour un
délit."[223]
[Footnote 212: Felkin, 'Notes on the For Tribe of Central
Africa,' in _Proceed. Roy. Soc. Edinburgh_, xiii. 234.]
[Footnote 213: Caillié, _op. cit._ i. 353. _Cf._ Mungo Park, _op.
cit._ p. 239 _sq._]
[Footnote 214: Macdonald, _Africana_, i. 182.]
[Footnote 215: Hinde, _op. cit._ p. 104. _Cf._ Johnston,
_Kilima-njaro Expedition_, p. 419.]
[Footnote 216: Baumann, _Durch Massailand_, p. 179.]
[Footnote 217: Petherick, _Travels in Central Africa_, ii. 3.
Beltrame, _Il Fiume Bianco_, p. 83.]
[Footnote 218: Munzinger, _Ostafrikanische Studien_, p. 531.]
[Footnote 219: _Ibid._ p. 386.]
[Footnote 220: Kobelt, _Reiseerinnerungen aus Algerien und
Tunis_, p. 223.]
[Footnote 221: Blunt, _op. cit._ ii. 204 _sq._]
[Footnote 222: Burckhardt, _Bedouins and Wahábys_, p. 90.]
[Footnote 223: Kovalewsky, _Coutume contemporaine_, p. 343.]
Similar views prevailed among the ancient Teutons. "Robberies,"
says Caesar, "which are committed beyond {24} the boundaries of
each state bear no infamy, and they avow that these are committed
for the purpose of disciplining their youth and of preventing
sloth."[224] The same was the case with the Highlanders of
Scotland until they were brought into subjection after the
rebellion of 1745.[225] "Regarding every Lowlander as an alien,
and his cattle as fair spoil of war," says Major-General Stewart,
"they considered no law for his protection as binding. . . . Yet,
except against the Lowlanders or a hostile clan, these
freebooters maintained, in general, the strictest honesty towards
one another, and inspired confidence in their integrity. . . . In
the interior of their own society all property was safe, without
the usual security of bolts, bars, and locks."[226] In the
Commentary to the Irish Senchus Mór it is stated that, whilst an
ordinary thief loses his full honour-price at once, committing
theft in another territory deprives a person of only half his
honour-price, until it is committed the third time.[227]
Throughout the Middle Ages all Europe seems to have tacitly
agreed that foreigners were created for the purpose of being
robbed.[228] In the thirteenth century there were still several
places in France in which a stranger who fixed his residence for
a year and a day became the serf of the lord of the manor.[229]
In England, till upwards of two centuries after the Conquest,
foreign merchants were considered only as sojourners coming to a
fair or market, and were obliged to employ their landlords as
brokers to buy and sell their commodities; and one stranger was
often arrested for the debt, or punished for the misdemeanour, of
another.[230] In a later age the old habit of oppression was
still so strong that, when the State suddenly wanted a sum of
money, it seemed quite natural that foreigners should be called
upon to {25} provide a part of it.[231] The custom of seizing the
goods of persons who had been shipwrecked, and of confiscating
them as the property of the lord on whose manor they were thrown,
seems to have been universal;[232] and in some European countries
the laws even permitted the inhabitants of maritime provinces to
reduce to servitude people who were shipwrecked on their
coast.[233] The sea laws of Oléron, which probably date from the
twelfth century, tell us that in many places shipwrecked sailors
meet with people more inhuman, barbarous, and cruel than mad
dogs, who slaughter those unhappy mariners in order to obtain
possession of their money, clothes, and other property.[234] In
the latter part of the Middle Ages attempts were incessantly made
by sovereigns and councils to abolish this ancient right, so far
as Christian sailors were concerned,[235] whereas the robbing of
shipwrecked infidels was not prohibited.[236] But for a long time
these endeavours were far from being successful;[237] and it was
even argued that, as shipwrecks were punishments sent by God, it
was impious to be merciful to the victims.[238]
[Footnote 224: Caesar, _De bello Gallico_, vi. 23.]
[Footnote 225: Tylor, in _Contemporary Review_, xxi. 716.]
[Footnote 226: Stewart, _Sketches of the Character, &c., of the
Highlanders of Scotland_, p. 42 _sq._]
[Footnote 227: _Ancient Laws of Ireland_, i. 57.]
[Footnote 228: _Cf._ Marshall, _International Vanities_, p. 285.]
[Footnote 229: Beaumanoir, _Les coutumes du Beauvoisis_, xlv. 19,
vol. ii. p. 226.]
[Footnote 230: Chitty, _Treatise on the Laws of Commerce and
Manufactures_, i. 131 _Cf._ Cibrario, _Della economia politica
del medio eve_, i. 192.]
[Footnote 231: See Marshall, _International Vanities_, p. 291 _sq._]
[Footnote 232: Du Cange, _Glossarium ad scriptores mediæ et
infimæ Latinitatis_, iv. 22 _sq._ Robertson, _History of the
Reign of Charles V._ i. 395.]
[Footnote 233: Du Cange, _op. cit._ iv. 23 _sq._ Cleffelius,
_Antiquitates Germanorum potissimum septentrionalium_, x. 4, p.
362. Dreyer, _Specimen juris publici Lubecensis_, p. cxcii.
Potgiesser, _Commentarii juris Germanici de statu servorum_, i.
i. 17, p. 18 _sq._]
[Footnote 234: _Ancient Sea-Laws of Oleron_, art. 30, p. 11.]
[Footnote 235: Du Cange, _op. cit._ iv. 24 _sqq._ Pardessus,
_Collection de lois maritimes_, ii. p. cxv. _sqq._; iii. p.
clxxix. von Eicken, _Geschichte und System der mittelalterlichen
Weltanschauung_, p. 569 _sqq._ _Constitutiones Neapolitanæ sive
Siculæ_, i. 28. _Concilium Romanum IV._ A.D. 1078 (Labbe-Mansi,
_Sacrorum Conciliorum collectio_, xx. 505 _sq._).]
[Footnote 236: Laurent, _Études sur l'histoire de l'humanité_,
vii. 323, 413 n. 3. von Eicken, _op. cit._ p. 570.]
[Footnote 237: Pardessus, _op. cit._ ii. p. cxv. Laurent, _op.
cit._ vii. 314. Marshall, _International Vanities_, pp. 287,
295.]
[Footnote 238: von Eicken, _op. cit._ p. 570 _sq._]
The readiness with which wars are waged, and the destruction of
property held legitimate in warfare, are other instances of the
little regard felt for the proprietary rights of foreigners.
Grotius maintained that "such ravage is tolerable as in a short
time reduces the enemy to seek peace";[239] and in the practice
of his time devastation was {26} constantly used independently of
any immediate military advantage accruing from it.[240] In the
eighteenth century the alliance of devastation with strategical
objects became more close, but it was still regarded as an
independent means of attack by Wolff,[241] Vattel,[242] and
others;[243] and even at the beginning of the nineteenth century
instances of devastation of a not necessary kind occasionally
occurred.[244] In later days opinion has decisively laid down
that the measure of permissible devastation is to be found in the
strict necessities of war.[245] Yet there is an exception to this
rule: during the siege of a fortified town custom still permits
the houses of the town itself to be bombarded, with a view to
inducing the commandant to surrender on account of the misery
suffered by the inhabitants.[246] Under the old customs of war a
belligerent possessed a right to seize and appropriate all
property belonging to a hostile state or its subjects, of
whatever kind it might be and in any place where acts of war were
permissible.[247] Subsequently this extreme right has been
tempered by usage, and in a few directions it has disappeared.[248]
Thus the principle proclaimed, but not always acted on, by the
Revolutionary Government of France, that private property should
be respected on a hostile as on a friendly soil,[249] is favoured
by present opinion and usage,[250] and pillage by the soldiers of
an invading army is expressly forbidden.[251] At the same time
there is unfortunately no {27} doubt that in all wars pillage
does continue with impunity;[252] and we sometimes hear of a
captured town being sacked, and the houses of the inhabitants
being plundered, on the plea that it was impossible for the
general to restrain his soldiers.[253] Moreover, private property
taken from the enemy on the field of battle, in the operations of
a siege, or in the storming of a place which refuses to
capitulate, is usually regarded as legitimate spoils of war.[254]
Military contributions and requisitions are levied upon the
inhabitants of the hostile territory.[255] And whilst the
progress of civilisation has slowly tended to soften the extreme
severity of the operations of war by land, it still remains
unrelaxed in respect to maritime warfare, the private property of
the enemy taken at sea or afloat in port being indiscriminately
liable to capture and confiscation. In justification of this it
is said that the object of maritime wars is the destruction of
the enemy's commerce and navigation, and that this object can
only be attained by the seizure of private property.[256]
[Footnote 239: Grotius, _De jure belli et pacis_, iii. 12. 1. 3.]
[Footnote 240: Hall, _Treatise on International Law_, p. 533.]
[Footnote 241: Wolff, _Jus Gentium_, §823, p. 300.]
[Footnote 242: Vattel, _Le droit des gens_, iii. 9. 167, vol. ii.
76 _sq._]
[Footnote 243: Hall, _op. cit._ p. 533 _sq._]
[Footnote 244: _Ibid._ p. 534 _sq._]
[Footnote 245: _Ibid._ p. 535. Bluntschli, _Le droit
international_, §663, p. 385. Heffter, _Das europäische
Völkerrecht_, §125, p. 262. Wheaton, _Elements of International
Law_, p. 473. _Conférence de Bruxelles_, art. 13, _g_.
_Conférence internationale de la paix, La Haye_ 1899, 'Règlement
concernant les lois et coutumes de la guerre sur terre,' art. 23
_g_, pt. i. 245.]
[Footnote 246: Hall, _op. cit._ p. 536 _sq._]
[Footnote 247: Grotius, _op. cit._ iii. 6. 2. Hall, _op. cit._
pp. 417, 438.]
[Footnote 248: Hall, _op. cit._ p. 419 _sqq._]
[Footnote 249: Bernard, 'Growth of Laws and Usages of War,' in
_Oxford Essays_, 1856, p. 109.]
[Footnote 250: _Conférence de Bruxelles_, art. 38. _Instructions
for the Government of Armies of the United States in the Field_,
art. 37. _Conférence de La Haye_, 'Règlement concernant la guerre
sur terre,' art. 46, pt. i. 248. Hall, _op. cit._ p. 441.
Geffken, in Heffter, _op. cit._ §140, p. 297, n. 5.]
[Footnote 251: _Conférence de Bruxelles_, art. 39. _Instructions
of the United States_, art. 44. _Conférence de La Haye_,
'Règlement concernant la guerre sur terre,' art. 28, 47, pt. i.
246, 248.]
[Footnote 252: Maine, _International Law_, p. 199. Halleck,
_International Law_, ii. 73, note.]
[Footnote 253: Halleck, _op. cit._ ii. 32. If we may believe
Garcilasso de la Vega (_First Part of the Royal Commentaries of
the Yncas_, i. 151) the officers of the Incas in ancient Peru
were more humane, never allowing the pillage of a captured town.]
[Footnote 254: Halleck, _op. cit._ ii. 73 _sq._ Wheaton, _op.
cit._ p. 467.]
[Footnote 255: Wheaton, _op. cit._ p. 467. Hall, _op. cit._ p.
427 _sqq._ _Conférence de La Haye_, 'Règlement concernant la
guerre sur terre,' art. 49, 52, pt. i. 248.]
[Footnote 256: Wheaton, _op. cit._ p. 483. Twiss, _Law of
Nations_, p. 141. Heffter, _op. cit._ §137, p. 287. Hall, _op.
cit._ p. 443 _sqq._]
Not only does the respect in which the right of property is held
vary according to the _status_ of the owner, but in many
instances certain persons are deemed incapable of possessing such
a right.
The father's power over his children may imply that the latter,
even when grown-up, have no property of their own, the father
having a right to the disposal of their earnings. This is the
case among some African peoples,[257] and the {28} Kandhs of
India.[258] In the Laws of Manu, the mythical legislator of the
Hindus, it is said, "A wife, a son, and a slave, these three are
declared to have no property; the wealth they earn is acquired
for him to whom they belong."[259] But according to the standard
commentators this only means that the persons mentioned are
unable to dispose of their property independently;[260] and it is
expressly stipulated that property acquired by learning belongs
exclusively to the person to whom it was given, and so also the
gift of a friend.[261] In Rome the _peculium_, or separate
property, allowed to a son was originally subject to the
authority of the house-father, should he choose to exercise such
authority; and it was only by very late legislation that sons
were secured the independent holding of their _peculium_.[262]
Even now it is the law in many European countries that, during
the minority of a child, the father or mother has the usufruct of
its property, with the exception of certain kinds of property
expressly specified.[263]
[Footnote 257: Sarbah, _Fanti Customary Laws_, p. 51. Kraft, in
Steinmetz, _Rechtsverhältnisse_, p. 285 (Wapokomo). Munzinger,
_Ueber die Sitten und das Recht der Bogos_, p. 36. Among the
Barea and Kunáma a man's earnings belong to his father until he
builds a house for himself, that is, until he marries (Munzinger,
_Ostafrikanische Studien_, p. 477). Among the Basutos parents can
deprive their sons of their earnings at pleasure (Endemann,
'Mittheilungen über die Sotho-Neger,' in _Zeitschr. f. Ethnol._
vi. 39).]
[Footnote 258: Macpherson, _Memorials of Service in India_, p. 62.]
[Footnote 259: _Laws of Manu_, viii. 416. See also _Nárada_, v. 41.]
[Footnote 260: Buehler, in his translation of the Laws of Manu,
_Sacred Books of the East_, xxv. 326, n. 416.]
[Footnote 261: _Laws of Manu_, ix. 206.]
[Footnote 262: Hunter, _Exposition of Roman Law_, p. 292 _sqq._
Maine, _Dissertations on Early Law and Custom_, p. 252. Girard,
_Manuel élémentaire de droit romain_, pp. 135, 138 _sqq._]
[Footnote 263: Bridel, _Le droit des femmes et le mariage_, p. 156.]
Among some uncivilised peoples women are said to be incapable of
holding property;[264] but this is certainly not the rule among
savage tribes, not even among the very lowest. When Mr. Snow
wished to buy a canoe from some Fuegians, his request was refused
on the ground that the object in question belonged to an old
woman, who would not part with it;[265] and among the blacks of
Australia Mr. Curr has often heard husbands ask permission of
their wives to take something out of their bags.[266] There are
instances in which the property owned by a {29} woman is by
marriage transferred to her husband;[267] but more commonly, it
seems, the wife remains mistress of her own property during the
existence of the marriage relation.[268] Among many savages
considerable proprietary privileges are granted to the female
sex. We have seen that the household goods are frequently
regarded as the special property of the wife.[269] Among the
Navahos of New Mexico everything, except horses and cattle,
practically belongs to the married women.[270] Among the Kafirs
of Natal, "when a man takes his first wife, all the cows he
possesses are regarded as her property," and the husband can,
theoretically, neither sell nor otherwise dispose of them without
his wife's consent.[271] The Mandans of North America have a
custom that all the horses which a young man steals or captures
in war belong to his sisters.[272] Among the Koch of India, we
are told, "the men are so gallant as to have made over all
property to the women."[273] As regards woman's right of
ownership, nations of a higher culture compare unfavourably with
many savages. In Japan the husband formerly had full rights over
the property of his wife.[274] We have already noticed the
disabilities in point of ownership to which women were once
subject in India; but the development of _str[=i]dhana_, or
_peculium_ of the female members of a family, shows that they
gradually became less dependent on their husbands in {30} matters
relating to property.[275] Among the ancient Hebrews women appear
to have been in every respect regarded as minors so far as
proprietary rights were concerned.[276] In Rome a marriage with
_conventio in manum_, which was the regular form of marriage in
early times, gave the husband a right to all the property which
the wife had when she married, and entitled him to all she might
acquire afterwards whether by gift or by her own labour.[277]
Later on marriage without _manus_ became the ordinary Roman
marriage, and this, together with the downfall of the ancient
_patria potestas_, led to the result that finally all the wife's
property was practically under her own control, save when a part
of it had been converted by settlement into a fund for
contributing to the expenses of the conjugal household.[278] But,
as we have noticed in another place, the new religion was not
favourable to the remarkable liberty granted to married women
during the pagan Empire;[279] and the combined influence of
Teutonic custom and Canon law led to those proprietary
incapacities of wives which up to quite recent times have
disfigured the lawbooks of Christian Europe.[280] In England,
before 1857, even a man who had abandoned his wife and left her
unaided to support his family might at any time return to
appropriate her earnings and to sell everything she had acquired,
and he might again and again desert her, and again and again
repeat the process of spoliation. In 1870 a law was passed
securing to women the legal control of their own earnings, but
all other female property, with some insignificant exceptions,
was left absolutely unprotected. And it was not until the Married
Women's {31} Property Act of 1882 that a full right to their own
property was given to English wives.[281]
[Footnote 264: Nassau, _Fetichism in West Africa_, p. 13 (tribes
of the Cameroons). Marshall, _A Phrenologist amongst the Todas_,
p. 206. Waitz, _Anthropologie der Naturvölker_, iii. 129 (some
Indian tribes of North America).]
[Footnote 265: Snow, 'Wild Tribes of Tierra del Fuego,' in _Jour.
Ethn. Soc. London_, N.S. i. 264.]
[Footnote 266: Curr, _The Australian Race_, i. 66.]
[Footnote 267: Mason, in _Jour. Asiatic Soc. Bengal_, xxxvii. pt.
ii. 142 (Karens). Sumner, in _Jour. Anthr. Inst._ xxxi. 94
(Jakuts). Post, _Studien zur Entwicklungsgeschichte des
Familienrechts_, p. 291.]
[Footnote 268: von den Steinen, _Unter den Naturvölkern
Zentral-Brasiliens_, p. 330 (Bakaïri). Morgan, _League of the
Iroquois_, p. 326. Lala, _Philippine Islands_, p. 91. Hagen,
_Unter den Papua's_, pp. 226, 243 (Papuans of Bogadjim, Kaiser
Wilhelm Land). Kubary, 'Die Palau-Inseln in der Südsee,' in
_Jour. des Museum Godeffroy_, iv. 54. Ratzel, _History of
Mankind_, i. 279 (various South Sea Islanders). Kingsley, _West
African Studies_, p. 373. Bosman, _op. cit._ p. 172 (Gold Coast
natives). Ellis, _Tshi-speaking Peoples of the Gold Coast_, p.
298. Sarbah, _Fanti Customary Laws_, p. 5. Lang, in Steinmetz,
_Rechtsverhältnisse_, p. 223 (Washambala). Burton, _Lake Regions
of Central Africa_, ii. 25 (Wanyamwezi). Post, _Entwicklungsgeschichte
des Familienrechts_, p. 292 _sqq._]
[Footnote 269: _Supra_, i. 637 _sqq._]
[Footnote 270: Mindeleff, 'Navaho Houses,' in _Ann. Rep. Bur.
Ethn._ xvii. 485.]
[Footnote 271: Shooter, _Kafirs of Natal_, p. 84.]
[Footnote 272: Wied-Neuwied, _Travels in the Interior of North
America_, p. 350.]
[Footnote 273: Buchanan, quoted by Hodgson, _Miscellaneous
Essays_, i. 110.]
[Footnote 274: Rein, _Japan_, p. 424.]
[Footnote 275: Jolly, 'Recht und Sitte,' in Buehler, _Grundriss
der indo-arischen Philologie_, ii. 78, 79, 87 _sqq._ Kohler,
'Indisches Ehe- und Familienrecht,' in _Zeitschr. f. vergl.
Rechtswiss._ iii. 424 _sqq._]
[Footnote 276: Benzinger, 'Law and Justice,' in Cheyne and Black,
_Encyclopædia Biblica_, iii. 2724.]
[Footnote 277: Hunter, _Roman Law_, p. 295. Maine, _Early History
of Institutions_, p. 312. Bryce, _Studies in History and
Jurisprudence_, ii. 387. Girard, _op. cit._ p. 163.]
[Footnote 278: Hunter, _Roman Law_, p. 295 _sqq._ Maine, _Early
History of Institutions_, p. 317 _sqq._ Friedlaender,
_Darstellungen aus der Sittengeschichte Roms_, i. 252. Girard,
_op. cit._ p. 164.]
[Footnote 279: _Supra_, i. 653 _sq._]
[Footnote 280: Maine, _Ancient Law_, p. 157 _sqq._]
[Footnote 281: Lecky, _Democracy and Liberty_, ii. 536 _sq._
Cleveland, _Woman under the English Law_, p. 279 _sqq._ For the
laws of other European countries see Bridel, _op. cit._ p. 61
_sqq._, and for the history of the subject see Gide. _Étude sur
la condition de la femme_, _passim_.]
A third class of persons who in many cases are considered
incapable of holding property of their own is the slave
class.[282] It may indeed be asked whether a slave ever has the
right of ownership in the full sense of the term. Yet slaves are
frequently said to be owners of property; and though this
"ownership" may have originally been a mere privilege granted to
them by their masters and subject to withdrawal at the discretion
of the latter,[283] it is undoubtedly in several cases a genuine
right guaranteed by custom. Among the Káfirs of the Hindu-Kush,
if the slaves work for others, they do not hand the wages over to
their masters, but keep the pay themselves.[284] In Africa, in
particular, it is a common thing for slaves to have private
property;[285] in Southern Guinea there are slaves who are
wealthier than their masters.[286] In some African countries, as
we have seen, the slave is obliged to work for his master only on
certain days of the week or a certain number of hours, and has
the rest of his time free.[287] So also in ancient Mexico the
slave was allowed a certain amount of time to labour for his own
advantage.[288] A Babylonian slave had his _peculium_, of which,
at least under normal circumstances, he was in safe
possession.[289] In Rome anything {32} a slave acquired was
legally his master's; but he was in practice permitted to enjoy
and accumulate chance earnings or savings or a share of what he
produced, which was regarded not as his property in the full
sense of the term, but as his _peculium_.[290] In the Middle Ages
slaves, and in many instances serfs also, were, strictly
speaking, destitute of proprietary rights.[291] In England it was
held that whatever was acquired by a villein was acquired by his
lord. At the same time his chattels did not _eo ipso_ lapse into
the lord's possession, but only if the latter actually seized
them; and if he for some reason or other refrained from doing so
the villein was practically their owner in respect of all persons
but his lord.[292] In the British and French colonies and the
American Slave States the negro slaves had no legal rights of
property in things real or personal.[293] According to the laws
of Georgia, masters must not permit their slaves to labour for
their own benefit, at a penalty of thirty dollars for every such
weekly offence;[294] and in other States they were expressly
forbidden to suffer their slaves to hire out themselves.[295] In
some places, however, negro slaves might hold a _peculium_. In
Arkansas a statute was passed granting masters the right of
allowing their slaves to do work on their own behalf on
Sundays;[296] and in the British colonies Sunday was made a
marketing day for the slaves so as to encourage them to labour
for themselves.[297] In the Civil Code of Louisiana {33} it is
said that the slave "possesses nothing of his own, except his
_peculium_, that is to say, the sum of money, or movable estate,
which his master chooses he should possess."[298] The Spanish and
Portuguese slave laws were more humane. According to them the
money and effects which a slave acquired by his labour at times
set apart for his own use or by any other means, were legally his
own and could not be seized by the master.[299]
[Footnote 282: Post, _Grundriss der ethnol. Jurisprudenz_, i.
370, 381. Holmberg, in _Acta Soc. Scientiarum Fennicæ_, iv. 330
_sq._ (Thlinkets). Kohler, 'Recht der Marschallinsulaner,' in
_Zeitschr. f. vergl. Rechtswiss._ xiv. 428 _sq._ Volkens, _op.
cit._ p. 249 (Wadshagga). Lang, in Steinmetz, _Rechtsverhältnisse_,
p. 241 (Washambala).]
[Footnote 283: Nicole, in Steinmetz, _Rechtsverhältnisse_, p. 119
(Diakité-Sarracolese). Senfft, _ibid._ p. 442 (Marshall
Islanders).]
[Footnote 284: Scott Robertson, _op. cit._ p. 100.]
[Footnote 285: Kingsley, _West African Studies_, p. 366. Ellis,
_E[(w]e-speaking Peoples of the Slave Coast_, p. 219. Steinmetz,
_Rechtsverhältnisse_, p. 43 (Banaka and Bapuku). Tellier, _ibid._
pp. 169, 171 (Kreis Kita). Baskerville, _ibid._ p. 193 (Waganda).
Beverley, _ibid._ p. 213 (Wagogo). Dale, in _Jour. Anthr. Inst._
xxv. 230 (Wabondei). Munzinger, _Die Sitten und das Recht der
Bogos_, p. 43. _Idem_, _Ostafrikanische Studien_, p. 309 _sq._
(Beni Amer).]
[Footnote 286: Wilson, _Western Africa_, p. 271.]
[Footnote 287: _Supra_, i. 677.]
[Footnote 288: Bancroft, _op. cit._ ii. 221.]
[Footnote 289: Kohler and Peiser, _Aus dem babylonischen
Rechtsleben_, i. i. See also _supra_, i. 684.]
[Footnote 290: _Digesta_, xv. 1. 39. Wallon, _Histoire de
l'esclavage dans l'antiquité_, ii. 181 _sq._ Ingrain, _History of
Slavery_, p. 44. Hunter, _Roman Law_, pp. 157, 290 _sq._ Girard,
_op. cit._ p. 95.]
[Footnote 291: _Supra_, i. 697. Guérard, _Cartulaire de l'Abbaye
de Saint-Père de Chartres_, i. p. xlvii.]
[Footnote 292: Vinogradoff, _Villainage in England_, p.67 _sq._
Pollock and Maitland, _op. cit._ i. 416, 419.]
[Footnote 293: Stephen, _Slavery of the British West India
Colonies_, i. 58. _Code Noir_, Édit du mois de Mars 1685, art.
28, p. 42 _sq._; Édit donné au mois de Mars 1724, art. 22, p. 295
_sq._ Stroud, _Sketch of the Laws relating to Slavery in the
several States of the United States of America_, p. 74. Goodell,
_American Slave Code_, p. 89 _sqq._]
[Footnote 294: Prince, _Digest of the Laws of Georgia_, p. 788.]
[Footnote 295: Caruthers and Nicholson, _Compilation of the
Statutes of Tennessee_, 675. Alden and van Hoesen, _Digest of the
Laws of Mississippi_, p. 751. Morehead and Brown, _Digest of the
Statute Laws of Kentucky_, ii. 1480 _sq._]
[Footnote 296: Ball and Roane, _Revised Statutes of Arkansas_,
xliv. 7. 2. 8, p. 276 _sq._]
[Footnote 297: Edwards, _History of the British West Indies_, ii. 181.]
[Footnote 298: Morgan, _Civil Code of Louisiana_, art. 175.]
[Footnote 299: Stephen, _op. cit._ i. 60. Couty, _L'esclavage au
Brésil_, p. 9.]
Among many peoples, finally, we find the theory that nobody but
the chief or king has proprietary rights, and that it is only by
his sufferance that his subjects hold their possessions.[300] The
soil, in particular, is regarded as his.[301] But even autocrats
are tied by custom,[302] and in practice the right of ownership
is not denied to their subjects.
[Footnote 300: Butler, _Travels in Assam_, p. 94 (Kukis).
Beecham, _Ashantee_, p. 96. Spencer, _Descriptive Sociology_,
African Races, p. 12 (Abyssinians). Decle, _op. cit._ p. 70
_sqq._ (Barotse). Kidd, _The Essential Kafir_, p. 353. Ellis,
_History of Madagascar_, i. 342. Post, _Afrikanische
Jurisprudenz_, ii. 171. Percy Smith, 'Uea, Western Pacific,' in
_Jour. Polynesian Soc._ i. 112. Tregear, 'Easter Island,' _ibid._
i. 99. In Samoa it is a maxim that a chief cannot steal; he is
merely considered to "take" the thing which he covets (Pritchard,
_Polynesian Reminiscences_, p. 104). In Uea, when a chief enters
a house, he enjoys the right to take all in it that he pleases
(Percy Smith, in _Jour. Polynesian Soc._ i. 113). Among the Kafirs
no case can be brought against a chief for theft, except if it be
committed on the property of a person belonging to another tribe;
and even the children of chiefs are permitted to steal from their
own people (Brownlee, in Maclean, _Compendium of Kafir Laws and
Customs_, p. 112 _sq._ Trollope, _South Africa_, ii. 303. Holden,
_Past and Future of the Kaffir Races_, p. 338).]
[Footnote 301: Waitz, _op. cit._ iii. 128 (Indian tribes of North
America); v. pt. i. 153 (Malays). Ellis, _Polynesian Researches_,
iii. 115 (Sandwich Islanders). Bory de St. Vincent, _Essais sur
les Isles Fortunées_, p. 64 (Guanches). Nicole, in Steinmetz,
_Rechtsverhältnisse_, p. 136 (Diakité-Sarracolese). Baskerville,
_ibid._ p. 201 (Waganda). Beverley, _ibid._ p. 216 (Wagogo).
Lang, _ibid._ p. 262 (Washambala). Rautanen, _ibid._ p. 343
(Ondonga). Stuhlmann, _Mit Emin Pasha ins Herz von Africa_, p. 75
(Wanyamwezi). Post, _Afrikanische Jurisprudenz_, ii. 170 _sq._;
Ratzel, _op. cit._ i. 126; de Laveleye-Bücher, _Das Ureigenthum_,
p. 275 (various African peoples). Kohler, _Rechtsvergleichende
Studien_, p. 235 (Kandian law). Giles, _Strange Stories from a
Chinese Studio_, ii. 369, n. 21 (Chinese).]
[Footnote 302: _Supra_, i. 162.]
In the next chapter we shall try to explain all these facts:--the
existence of proprietary rights, the refusal of such rights to
certain classes of persons, the different {34} degrees of
condemnation attending theft under different circumstances. But
before we can understand the psychological origin of the right of
ownership and the regard in which it is held, it is necessary to
examine the methods by which it is acquired, the external facts
which give to certain individuals a right to the exclusive
disposal of certain things.
CHAPTER XXIX
THE RIGHT OF PROPERTY (_concluded_)
ACCORDING to an old theory set forth by Roman jurists, and
afterwards much emphasised by Grotius,[1] the original mode of
acquisition is occupation, that is, a person's taking possession
of that which at the moment belongs to nobody (_res nullius_),
with the intention of keeping it as his property. That occupation
very largely, though by no means exclusively, is at the bottom of
the right of ownership seems obvious enough, and it is only by
means of strained constructions that Locke and others have been
able to trace the origin of this right to labour alone.[2] The
principle of occupation is illustrated by innumerable facts from
all quarters of the world--by the hunter's right to the game
which he has killed or captured;[3] by the nomad's or settler's
right to the previously unoccupied place where {36} he has
pitched his tent or built his dwelling;[4] by the agriculturist's
right to the land of which he has taken possession by cultivating
the soil;[5] by a tribe's or community's right to the territory
which it has occupied.[6] Among the Kandhs of India "the right of
possession of land is simply founded in the case of tribes upon
priority of appropriation, and in the case of individuals upon
priority of culture."[7] Among the Herero, "notwithstanding the
loose notions generally entertained by them as to _meum_ and
_tuum_, there is an understanding that he who arrives first at
any given locality is the master of it as long as he chooses to
remain there, and no one will intrude upon him without having
previously asked and obtained his permission. The same," our
authority adds, "is observed even with regard to strangers."[8]
Again, among some of the Australian natives a man who had found a
bees' nest and did not wish to rob it for some time, would mark
the tree in some way or other, and "it was a crime to rob a nest
thus indicated."[9] In Greenland anyone picking up pieces {37} of
driftwood or goods lost at sea or on land was considered the
rightful owner of them; and to make good his possession he had
only to carry them up above high-water mark and put stones upon
them, no matter where his homestead might be.[10] But the
finder's right to the discovered article is not always restricted
to objects which have no owner or the owner of which is unknown:
in some instances his occupation of it makes it his property in
all circumstances,[11] whilst in other cases he at any rate has a
claim to part of its value.[12] Among the Hurons "every thing
found, tho' it had been lost but a moment, belonged to the person
that found it, provided the loser had not claimed it before."[13]
The Kafirs "are not bound by their law to give up anything they
may have found, which has been lost by some one else. The loser
should have taken better care of his property, is their moral
theory."[14] Among the Chippewyans any unsuccessful hunter
passing by a trap where a deer is caught may take the animal, if
only he leaves the head, skin, and saddle for the owner;[15] and
among the Tunguses whoever finds a beast in another man's trap
may take half the meat.[16] Among the Maoris boats or canoes
which were cast adrift became the property of the captors. "Even
a canoe . . . of friends and relatives upsetting off a village,
and drifting on shore where a village was, became the property of
the people of that village; although it might be that the people
in the canoe had all got safely to land or were coming by special
invitation to visit that very {38} village."[17] We have
previously noticed the customary treatment of shipwrecked
mariners in mediæval Europe. And another instance of occupation
establishing a right of property in things which already have an
owner is conquest or capture made in war. The Romans regarded
spoils taken from an enemy as the most excellent kind of
property.[18]
[Footnote 1: Grotius, _De jure belli et pacis_, ii. 3. 3.]
[Footnote 2: Locke, _Treatises of Government_, ii. 5. 27 _sqq._,
p. 200 _sqq._ Thiers, _De la propriété_, p. 94 _sqq._ Hume
remarks (_Treatise of Human Nature_, ii. 3 [_Philosophical
Works_, ii. 276, n. 1]):--"There are several kinds of occupation,
where we cannot be said to join our labour to the object we
acquire; as when we possess a meadow by grazing our cattle upon it."]
[Footnote 3: Curr, _Recollections of Squatting in Victoria_, p.
265 (Bangerang tribe). Murdoch, 'Ethnol. Results of the Point
Barrow Expedition,' in _Ann. Rep. Bur. Ethn._ ix. 428 (Point
Barrow Eskimo). Ahlqvist, 'Unter Wogulen und Ostjaken,' in _Acta
Soc. Scientiarum Fennicæ_, xiv. 166 (Voguls). Steinmetz,
_Rechtsverhältnisse_, p. 53 (Banaka and Bapuku). Post,
_Afrikanische Jurisprudenz_, ii. 162 _sq._ Andree, 'Ethnogr.
Bemerkungen zu einigen Rechtsgebräuchen,' in _Globus_, xxxviii.
287. Among some Indian **tribes of North America it was customary
for individuals to mark their arrows, in order that the stricken
game might fall to the man by whose arrow it had been despatched
(Powell, in _Ann. Rep. Bur. Ethn._ iii. p. lvii.).]
[Footnote 4: von Martius, _Von dem Rechtszustande unter den
Ureinwohnern Brasiliens_, p. 34 (Brazilian aborigines). Dalager,
_Grønlandske Relationer_, p. 15; Nansen, _Eskimo Life_, p. 109
(Greenlanders). Marsden, _History of Sumatra_, pp. 68, 244
(Rejangs). Steinmetz, _Rechtsverhältnisse_, p. 53 (Banaka and
Bapuku). Kraft, _ibid._ p. 293 (Wapokomo). Decle, _Three Years in
Savage Africa_, p. 487 (Wakamba). Robertson Smith, _Religion of
the Semites_, pp. 95, 96, 143 (ancient Semitic custom and
Muhammedan law).]
[Footnote 5: Thomson, _Savage Island_, p. 137. Polack, _Manners
and Customs of the New Zealanders_, ii. 69; Thomson, _Story of
New Zealand_, i. 97. Munzinger, _Die Sitten und das Recht der
Bogos_, p. 69. Cruickshank, _Eighteen Years on the Gold Coast_,
ii. 277. Leuschner, in Steinmetz, _Rechtsverhältnisse_, p. 24
(Bakwiri). _Ibid._ p. 53 (Banaka and Bapuku). Tellier, _ibid._ p.
178 (Kreis Kita). Dale, in _Jour. Anthr. Inst._ xxv. 230
(Wabondei). _Laws of Manu_, ix. 44. Wellhausen, _Reste arabischen
Heidentums_, p. 108. Robertson Smith, _Religion of the Semites_,
pp. 95, 96, 143 (ancient Semitic custom and Muhammedan law).
Waitz, _Anthropologie der Naturvölker_, i. 440. Dargun, 'Ursprung
und Entwicklungs-Geschichte des Eigenthums,' in _Zeitschr. f.
vergl. Rechtswiss._ v. 71 _sqq._ Post, _Entwicklungsgeschichte
des Familienrechts_, p. 283 _sqq._ _Idem_, _Grundriss der ethnol.
Jurisprudenz_, i. 342 _sqq._ See also _infra_, p. 39 _sq._]
[Footnote 6: Thomson, _Story of New Zealand_, i. 96; Polack, _op.
cit._ ii. 71 (Maoris), Mademba, in Steinmetz, _Rechtsverhältnisse_,
p. 90 (natives of the Sansanding States).]
[Footnote 7: Macpherson, _Memorials of Service in India_, p. 62.]
[Footnote 8: Andersson, _Lake Ngami_, p. 115. See also Viehe, in
Steinmetz, _Rechtsverhältnisse_, p. 310.
12: Merker, _Die Masai_, p. 204. Desoignies, in Steinmetz,
_Rechtsverhältnisse_, p. 281 (Msalala). Post, _Grundriss der
ethnol. Jurisprudenz_, ii. 605.]
[Footnote 13: Charlevoix, _Voyage to North-America_, ii. 26 _sq._]
[Footnote 14: Leslie, _Among the Zulus and Amatongas_, p. 202.]
[Footnote 15: Schoolcraft, _Archives of Aboriginal Knowledge_,
v. 177.]
[Footnote 16: Ratzel, _History of Mankind_, ii. 226.]
[Footnote 17: Colenso, _Maori Races of New Zealand_, p. 34.
Polack, _op. cit._ p. 68 _sq._]
[Footnote 18: "Maxima sua esse credebant quae ab hostibus
cepissent" (quoted by Ahrens, _Naturrecht_, ii. 137).]
The occupation of a thing may take place in various ways. Hegel
says that "taking possession is partly the simple bodily grasp,
partly the forming and partly the marking or designating of the
object."[19] But there are still other methods of occupation, in
which the bodily contact with the object is involuntary, or in
which there is no bodily contact at all. Among the Maoris a man
acquired a peculiar right to land "by having been born on it (or,
in their expressive language, 'where his navel-string was cut'),
as his first blood (ever sacred in their eyes) had been shed
there";[20] or, generally, "by having had his blood shed upon
it"; or "by having had the body, or bones, of his deceased
father, or mother, or uterine brother or sister, deposited or
resting on it"; or "by having had a near relative killed, or
roasted on it, or a portion of his body stuck up or thrown away
upon it."[21] Among many peoples an animal belongs entirely or
chiefly to the person who first wounded it, {39} however
slightly,[22] or who first saw it,[23] even though it was killed
by somebody else. Thus among the Greenlanders, if a seal or some
other sea-animal escapes with the javelin sticking in it, and is
afterwards killed, it belongs to him who threw the first
dart;[24] if a bear is killed, it belongs to him who first
discovered it;[25] and when a whale is taken, the very spectators
have an equal right to it with the harpooners.[26]
[Footnote 19: Hegel, _Grundlinien der Philosophie des Rechts_,
§ 54, p. 54; English translation, p. 59.]
[Footnote 20: Of certain tribes of Western Victoria we are
likewise told that, "should a child of another family have been
born on the estate, it is looked upon as one of the family, and
it has an equal right with them to a share of the land, if it has
attained the age of six months at the death of the proprietor"
(Dawson, _Australian Aborigines_, p. 7). The Rev. John Bulmer
(quoted by Brough Smyth, _Aborigines of Victoria_, i. 146)
testifies the prevalence of such a birth-right among the Murray
tribes, and suspects it is common to most of the tribes of
Australia:--"The fact that an aboriginal is born in a certain
locality constitutes a right to that part, and it would be
considered a breach of privilege for any one to hunt over it
without his permission. Should another black have been born in
the same place, he, with the former, would have a joint right to
the land. Otherwise, no native seems to have made a claim to any
particular portion of the territory of his tribe." _Cf._ Schurtz,
_Die Anfänge des Landbesitzes_, in _Zeitschr. f. Socialwissenschaft_,
iii. 357 _sqq._]
[Footnote 21: Colenso, _op. cit._ p. 31. See also Polack, _op.
cit._ ii. 82.]
[Footnote 22: Dalager, _op. cit._ p. 24 _sq._ (Greenlanders).
Boas, 'Central Eskimo,' in _Ann. Rep. Bur. Ethn._ vi. 582. Dall,
_Alaska_, p. 394 (Aleuts). Ratzel, _op. cit._ Bourke,
_Snake-Dance of the Moquis_, ii. 227 (Asiatic Hyperboreans).
Campbell, _Second Journey in the Interior of South Africa_, ii.
212 (Bechuanas). Livingstone, _Missionary Travels_, p. 599
(natives of South Africa), von Heuglin, _Reise nach Abessinien_,
p. 290 _sq._ (Woitos). _Laws of Manu_, ix. 44. Post,
_Afrikanische Jurisprudenz_, ii. 163. _Idem_, _Grundriss der
ethnol. Jurisprudenz_, ii. 707 _sq._ Andree, in _Globus_,
xxxviii. 287 _sq._]
[Footnote 23: Boas, 'Central Eskimo,' in _Ann. Rep. Bur. Ethn._
vi. 582. Ratzel, _op. cit._ ii. 227 (Asiatic Hyperboreans). See
also Semper, _Die Palau-Inseln_, p. 86.]
[Footnote 24: Dalager, _op. cit._ p. 24.]
[Footnote 25: Rink, _Tales and Traditions of the Eskimo_, p. 29.]
[Footnote 26: Dalager, _op. cit._ p. 25.]
Besides occupation, or the taking possession of a thing, the
keeping possession of it may establish a right of ownership. That
these principles, though closely connected with each other, are
not identical is obvious from two groups of facts. First, a
proprietary right which is based on occupation may disappear if
the object has ceased to remain in the possession of the person
who had appropriated it. The place occupied by a nomad is his
only so long as he continues to stay there;[27] and among
agricultural savages the cultivator frequently loses his right to
the field when he makes no more use of it[28]--though, on the
other hand, instances are not wanting in which cultivation gives
proprietary {40} rights of a more lasting nature.[29] Loss of
possession may, indeed, annul or weaken ownership gained by any
method of acquisition. In the Hindu work Panchatantra it is said
that the property in "tanks, wells, ponds, temples, and
choultries" will no longer rest with persons who once have left
them.[30] Among the natives of the Sansanding States the right to
a house is lost by its being abandoned.[31] In Greenland, if a
man makes a fox trap and neglects it for some time, another may
set it and claim the captured animal.[32] So also the finder's
title to the discovered article springs from the fact that the
original owner's right has been relaxed by his losing the
possession of it. Secondly, the retaining possession of an object
for a certain length of time may make it the property of the
possessor, even though the occupation of that object conferred on
him no such right, nay though the acquisition of it was actually
wrongful.[33] According to the Roman Law of the Twelve Tables,
commodities which had been uninterruptedly possessed for a
certain period--movables for a year, and land or houses for two
years--became the property of the person possessing them.[34]
This principle, known to the Romans as _usucapio_, has descended
to modern jurisprudence under the name of "prescription." It also
prevailed in India since ancient times. The older law-books laid
down the rule that, if the owner of a thing is neither an idiot
nor a minor and if his chattel is enjoyed {41} by another before
his eyes during ten years and he says nothing, it is lost to him,
and the adverse possessor shall retain it as his own property;[35]
but it seems that later on the period of prescription was extended
to thirty years or even more.[36] In this connection it should
also be noticed that the division of labour, implying the use of
certain articles, often confers proprietary rights to those
articles upon the persons who make habitual use of them, as in
the case of women becoming the owners of the household goods.[37]
[Footnote 27: _Cf._ Post, _Afrikanische Jurisprudenz_, ii. 167.]
[Footnote 28: Morgan, _League of the Iroquois_, p. 326. Dorsey,
'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._ iii. 366. Bourke,
_Snake-Dance of the Moquis_, p. 261. Shooter, _Kafirs of Natal_,
p. 16; Lichtenstein, _Travels in Southern Africa_, i. 271 (Kafirs).
MacGregor, in _Jour. African Soc._ 1904, p. 474 (Yoruba). Leuschner,
in Steinmetz, _Rechtsverhältnisse_, p. 25. Lang, _ibid._ p. 264.
(Washambala). Marx, _ibid._ p. 358 (Amahlubi). Sorge, _ibid._ p. 422
(Nissan Islanders). Waitz, _op. cit._ i. 440. Dargun, in _Zeitschr.
f. vergl. Rechtswiss._ v. 71 _sqq._ Post, _Entwicklungsgeschichte des
Familienrechts_, p. 283 _sqq._ _Idem_, _Grundriss der ethnol.
Jurisprudenz_, i. 343 _sq._ de Laveleye-Bücher, _Das Ureigenthum_,
ch. xiv. p. 270 _sqq._ Among the Rejangs of Sumatra a planter of
fruit-trees or his descendants may claim the ground as long as any
of the trees subsist, but when they disappear "the land reverts to
the public" (Marsden, op. cit. p. 245).]
[Footnote 29: von Martius, Von dem Rechtszustande unter den
Ureinwohnern Brasiliens_, p. 35 _sq._ (Brazilian aborigines).
Steinmetz, _Rechtsverhältnisse_, p. 53 (Banaka and Bapuku).
Kohler, 'Banturecht in Ostafrika,' in _Zeitschr. f. vergl.
Rechtswiss._ xv. 48 (natives of Lindi). Trollope, _op. cit._ ii.
302 (Kafirs). Post, _Afrikanische Jurisprudenz_, ii. 169. _Idem_,
_Entwicklungsgeschichte des Familienrechts_, p. 285 _sq._
Schurtz, in _Zeitschrift für Socialwissenschaft_, iii. 255. Among
the Angami Nagas any member of a village "may choose to leave his
fields untilled for one year and cannot be compelled to grow his
crops during the next, but after that, if illness or idleness
prevent him from overtaking the work, his village insists on the
fields being let" (Prain, 'Angami Nagas,' in _Revue coloniale
internationale_, v. 484).]
[Footnote 30: _Panchatantram_, iii. p. 15.]
[Footnote 31: Mademba, in Steinmetz, _Rechtsverhältnisse_, p. 91.]
[Footnote 32: Dalager, _op. cit._ p. 27.]
[Footnote 33: See Mill, _Principles of Political Economy_, i.
272; Thiers, _op. cit._ p. 108; Waitz-Gerland, _op. cit._ vi. 228
(Maoris).]
[Footnote 34: Hunter, _Roman Law_, p. 265 _sqq._ Maine, _Ancient
Law_, p. 284. Girard, _Manuel élémentaire de droit romain_, p.
296 _sqq._ Puchta, _Cursus der Institutionen_, ii. 202 _sqq._]
[Footnote 35: _Gautama_, xii. 39. _Vasishtha_, xvi. 16 _sq._
_Laws of Manu_, viii. 147 _sq._ See also _Panchatantram_, iii. p.
15; Benfey's translation, vol. ii. 233.]
[Footnote 36: _Brihaspati_, ix. 7. Jolly, 'Recht und Sitte,' in
Buehler, _Grundriss der indo-arischen Philologie_, ii. 92. For
the rules of prescription in ancient India see also Jolly, p. 91
_sqq._, and Kohler, _Altindisches Prozessrecht_, p. 55 _sq._]
[Footnote 37: _Supra_, i. 637 _sqq._]
A further source of ownership lies in the principle that a person
has a title to the products of his own labour. Grotius--in
criticising the Roman jurist Paulus, who long before Locke had
made labour a justification of property,--[38]argues that this is
no special mode of acquisition, but that the labourer's claim to
what he produces is based on occupation. "Since in the course of
nature," Grotius says, "nothing can be made except but of
pre-existing matter, if that matter was ours, the ownership
continues when it assumes a new form; if the matter was no one's
property, this acquisition comes under occupation; if the matter
belonged to another, the thing made is not ours alone."[39] This
argument contains its own refutation. If a thing which we make of
matter belonging to another person is not "ours alone," our
partial right to it can be due only to our labour. Again, if we
make a thing of materials belonging to ourselves, our right to it
is certainly held to be increased by our exertions in producing
it. It should, moreover, be remembered that there is ownership in
the products not only of manual but of mental labour, and in the
latter case the ownership can hardly be considered to be due to
occupation at all. We may say with Mr. Spencer that from the
beginning things identified as products of a man's labour are
recognised as his. Even {42} among the rudest peoples there is
property in weapons, implements, dress, decorations, and other
things in which the value given by labour bears a specially large
proportion to the value of the raw material.[40] If a Greenlander
finds a dead seal with a harpoon in it, he keeps the seal, but
restores the harpoon to its owner.[41] Among the same people,
when somebody has built dams across salmon-rivers to catch the
fish, it is not considered proper for strangers to come and
meddle with them.[42] In various parts of Africa he who has dug a
well has a right to the exclusive disposal of it.[43] In West
Africa, according to Miss Kingsley, that which is acquired or
made by a man or woman by their personal exertions is regarded as
his or her private property.[44] The Moquis of Arizona "are
co-operative in all their labours, whether as hunters, herders,
or tillers of the soil; but each man gathers the spoils of his
individual skill and daring, or the fruits of his own
industry."[45] In the Nicobars, whilst everything which the
village as a whole makes or purchases is common property, the
result of individual work belongs to the individual.[46] In old
Hindu law-books the performance of labour is specified as one of
the lawful modes of acquiring property.[47] According to Nârada,
when the owner of a field is unable to cultivate it, or dead, or
gone no one knows whither, any stranger who undertakes its
cultivation unchecked by the owner shall be allowed to keep the
produce; and if the owner returns while the stranger is engaged
in cultivation, the owner, in order to recover his field, has to
pay to the cultivator the whole expense incurred in tilling the
waste.[48] Thus, though cultivation does not give a right to the
land, it gives a right to the produce {43} of the labour
performed. Among uncivilised races we frequently find that the
land itself and the crops or trees growing on it have different
owners, the latter belonging to the person who planted them.[49]
[Footnote 38: _Cf._ Girard, _op. cit._ p. 316.]
[Footnote 39: Grotius, _op. cit._ ii. 3. 3.]
[Footnote 40: Spencer, _Principles of Sociology_, ii. 646.
_Idem_, _Principles of Ethics_, ii. 98. _Cf._ Waitz, _op. cit._
i. 440 _sq._]
[Footnote 41: Dalager, _op. cit._ p. 25.]
[Footnote 42: Nansen, _First Crossing of Greenland_, ii. 299.]
[Footnote 43: Munzinger, _Die Sitten und das Recht der Bogos_, p.
70. Lang, in Steinmetz, _Rechtsverhältnisse_, p. 264
(Washambala). von François, _Nama und Damara_, p. 175 (Herero).]
[Footnote 44: Kingsley, _West African Studies_, p. 366.]
[Footnote 45: Bourke, _Snake-dance of the Moquis_, p. 260 _sq._]
[Footnote 46: Kloss, _In the Andamans and Nicobars_, p. 240.]
[Footnote 47: _Gautama_, x. 42. _Laws of Manu_, x. 115.]
[Footnote 48: _Nârada_, xi. 32 _sq._]
[Footnote 49: Colenso, _op. cit._ p. 31 (Maoris). Leuschner, in
Steinmetz, _Rechtsverhältnisse_, p. 25 (Bakwiri). Lang, _ibid._
p. 264 (Washambala). Munzinger, _Die Sitten und das Recht der
Bogos_, p. 69. Hanoteau and Letourneux, _La Kabylie_, ii. 230;
Kobelt, _Reiseerinnerungen aus Algerien und Tunis_, p. 293
(Kabyles of Jurjura). Hyde Clarke, in _Jour. Anthr. Inst._ xix.
199 _sqq._ Post, _Afrikanische Jurisprudenz_, ii. 172. Schurtz,
in _Zeitschr. f. Socialwissenschaft_, iii. 250 _sq._]
The right of ownership may, further, be established by a transfer
of property by its owner, either by way of gift or by sale or
exchange or some other form of contract. The conditions necessary
for this method of acquisition are, that the owner shall have a
right to alienate the article in question, and that the other
party shall be capable of owning such property. As has been said
before, ownership does not necessarily imply an unrestricted
power of disposition. Property in land, for instance, is
frequently considered inalienable;[50] and, to take another
example, the power of testation, if recognised at all, is often
subject to restrictions.[51] The customary law of the Fantis of
West Africa does not permit any person to bequeath to an outsider
a greater portion of his property than is left for his
family.[52] Among the Maoris land obtained by purchase or
conquest may be given away or willed by the owner to anybody he
thinks fit, but the case is different with patrimony.[53] With
regard to the so-called Aryan peoples Sir Henry Maine thinks "it
is doubtful whether a true power of testation was known to any
original society except the Roman."[54] Even in Rome bequest
seems not to have been permitted in pre-historic times, and
afterwards a _legitima portio_ was compulsorily reserved for each
child.[55] Such is still the law of some continental nations.
[Footnote 50: Post, _Entwicklungsgeschichte des Familienrechts_,
p. 286 _sqq_. Avebury, _Origin of Civilisation_, p. 483 _sq._]
[Footnote 51: Post, _Grundriss der ethnol. Jurisprudenz_, ii. 200
_sqq._ _Idem_, _Afrikanische Jurisprudenz_, ii. 19.]
[Footnote 52: Sarbah, _op. cit._ p. 85.]
[Footnote 53: Polack, _op. cit._ ii. 69.]
[Footnote 54: Maine, _Ancient Law_, p. 196. See also Fustel
de Coulanges, _La cité antique_, p. 95.]
[Footnote 55: Fustel de Coulanges, _op. cit._ p. 96. Hunter, _Roman
Law_, p. 780 _sqq._ Girard, _op. cit._ p. 854 _sqq._]
{44} Closely connected with the restrictions imposed on a proprietor's
power of testation is the rule of inheritance, one of the most common
methods of acquiring property. At the earlier stages of civilisation the
property of a deceased person is not in every case subject to this rule.
Apart from the practice of testation, which, though hardly primitive,
is not infrequently found among savages,[56] there are other ways of
dealing with it besides inheritance. The private belongings of the dead,
or part of them, are destroyed or buried with him, or his dwelling
is burned or abandoned;[57] but Dr. Dargun goes too far when saying
that among rude savages this custom is generally practised to such an
extent as to exclude heirship in property altogether.[58] Nor must we
infer the general prevalence of a stage where there were no definite
rules of inheritance[59] from the fact that among some North American
tribes, when a man dies leaving young children who are unable to defend
themselves, grown-up relatives or other persons come in and seize
whatever they please.[60] The ordinary custom of savages is that the dead
man's property is inherited either by his own children, if kinship is
reckoned through the father, or by his sister's children or other
relatives on the mother's side, if kinship is reckoned through females
only.[61] Sometimes the rules of inheritance make little or no
distinction between men and women;[62] sometimes a decided preference
is given to the {45} men[;63] sometimes the women inherit nothing;[64]
whereas in a few exceptional cases the women are the only inheritors.[65]
Among various savages the widow also has a share in the inheritance, or
at any rate has the usufruct of property left by her deceased husband.[66]
Very frequently the eldest son,[67] or, where the maternal system of
descent prevails in {46} full, the eldest uterine brother[68] or the
eldest son of the eldest uterine sister,[69] is the chief or even the
only heir. But there are also several instances in which this privilege
is granted to the youngest son.[70] Thus, among the Hos of India he
apparently inherits all the property of his father;[71] among the Limbus
of Nepal, though an extra share is set apart for the eldest son, the
youngest one is allowed to choose his share first;[72] among the Eskimo
of Behring Strait, "if there are several sons the eldest gets the least,
the most valuable things being given to the youngest."[73]
In Greenland a foster-son inherits all the property of his
foster-father, if the latter dies without offspring or if his
sons are still young children;[74] and of the West African Fulah
we are told that, though they have sons and daughters, the
adopted child becomes heir to all that they leave behind.[75]
Among the Kukis, in default of legitimate issue, a natural son
succeeds to his father's property before all other male
relations;[76] among the Bódo and Dhimáls sons by concubinage or
adoption get equal shares with sons born in wedlock;[77] the
Wanyamwezi of Eastern Africa have the habit of leaving property
to their illegitimate children by slave girls or concubines even
to the exclusion of their issue by wives.[78] Among other
uncivilised peoples, {47} again, slaves cannot inherit at
all,[79] and where they are allowed to possess property the
master is sometimes the legitimate heir of his slave.[80]
[Footnote 56: Ellis, _Polynesian Researches_, iii. 115 _sq._
(Tahitians). Wilkin, in _Reports of the Cambridge Expedition to
Torres Straits_, v. 286 (natives of Mabuiag). Kingsley, _West
African Studies_, p. 373. Lang, in Steinmetz, _Rechtsverhältnisse_,
p. 238 (Washambala). Desoignies, _ibid._ p. 277 (Msalala).
Rautanen, _ibid._ p. 336 (Ondonga). Dale, in _Jour. Anthr. Inst._
xxv. 224. Post, _Grundriss der ethnol. Jurisprudenz_, ii. 199.]
[Footnote 57: See _infra_, on Regard for the Dead.]
[Footnote 58: Dargun, in _Zeitschr. f. vergl. Rechtswiss._ v. 99
_sqq._]
[Footnote 59: _Ibid._ p. 102 _sq._]
[Footnote 60: Prescott, in Schoolcraft, _Indian Tribes of the
United States_, ii. 194 _sq._ (Dacotahs). Hale, _U.S. Exploring
Expedition. Vol. VI. Ethnography and Philology_, p. 208 (Salish).
Dalager, _op. cit._ p. 30 _sq._; Cranz, _op. cit._ i. 176
(Greenlanders).]
[Footnote 61: See Westermarck, _op. cit._ p. 97 _sqq._]
[Footnote 62: Kloss, _op. cit._ p. 241 (Nicobarese). Wilkin, in
_Rep. Cambridge Anthr. Exped._ v. 285 _sq._ (natives of Mabuiag).
Wilkes, _U.S. Exploring Expedition_, v. 85 (Kingsmill Islanders).
Senfft, in Steinmetz, _Rechtsverhältnisse_, p. 441 (Marshall
Islanders). Dawson, _op. cit._ p. 7 (certain tribes of Western
Victoria). Post, _Afrikanische Jurisprudenz_, ii. 14. _Idem_,
_Entwicklungsgeschichte des Familienrechts_, p. 299. _Idem_,
_Grundriss der ethnol. Jurisprudenz_, i. 225.]
[Footnote 63: Sarbah, _Fanti Customary Laws_, p. 87. Post,
_Afrikanische Jurisprudenz_, ii. 13 _sq._ _Idem_, _Entwicklungsgeschichte
des Familienrechts_, p. 298 _sq._ _Idem_, _Grundriss der ethnol.
Jurisprudenz_, i. 222 _sqq._ Among several uncivilised peoples
landed property descends exclusively (Macpherson, _Memorials of
Service in India_, p. 62 [Kandhs]; Sumner, in _Jour. Anthr.
Inst._ xxxi. 79 [Jakuts]; Curr, _The Australian Race_, i. 64;
Johnston, _Uganda Protectorate_, ii. 694; Post, _Entwicklungsgeschichte
des Familienrechts_, p. 298 _sq._; _Idem_, _Grundriss der ethnol.
Jurisprudenz_, i. 224) or by preference (Thomson, _Story of New
Zealand_, i. 96; Post, _Grundriss der ethnol. Jurisprudenz_, i.
224 sq.) to men.]
[Footnote 64: Castrén, _Nordiska resor och forskningar_, i. 312
(Ostyaks). Marshall, _A Phrenologist amongst the Todas_, p. 206.
Hodgson, _Miscellaneous Essays_, i. 122 (Bódo and Dhimáls).
Hislop, _Papers relating to the Aboriginal Tribes of the Central
Provinces_, p. 12, n. [dagger] (Gonds). Soppitt, _Account of the
Kuki-Lushai Tribes_, p. 16; Stewart, 'Notes on Northern Cachar,'
in _Jour. Asiatic Soc. Bengal_, xxiv. 640 (Kukis). Risley,
_Census of India_, 1901, vol. i. Ethnographic Appendices, pp. 146
(Santals), 156 (Mundas), 209 (most of the Angami Nagas). Fryer,
_Khyeng People of the Sandoway District_, p. 6. Marsden, _op.
cit._ p. 244 (Rejangs). Eyre, _Expeditions of Discovery into
Central Australia_, ii. 297. Munzinger, _Die Sitten und das Recht
der Bogos_, p. 73. Hinde, _Last of the Masai_, p. 105; Johnston,
_Uganda Protectorate_, ii. 828 (Masai). Dale, in _Jour. Anthr.
Inst._ xxv. 224 (Wabondei). Kingsley, _Travels in West Africa_,
p. 485 (some West African tribes). Nassau, _Fetichism in West
Africa_, p. 13 (natives of the Cameroons). Leuschner, in
Steinmetz, _Rechtsverhältnisse_, p. 20 (Bakwiri). Mademba,
_ibid._ p. 81 (pagan Bambara). Lang, _ibid._ p. 238 (Washambala).
Kraft, _ibid._ p. 289 (Wapokomo). Rautanen, _ibid._ p. 335
(Ondonga). Decle, _op. cit._ p. 486 (Wakamba). Campbell, _Travels
in South Africa_, p. 520 (Kafirs). Post, _Afrikanische
Jurisprudenz_, ii. 5. _Idem_, _Entwicklungsgeschichte des
Familienrechts_, p. 296 _sqq._ _Idem_, _Grundriss der ethnol.
Jurisprudenz_, i. 218 _sq._]
[Footnote 65: Hamy, in _Bull. Soc. d'Anthr. Paris_, ser. ii. vol.
xii. (1877), 535 (Penong Piâk of Cambodia). Buchanan, quoted by
Hodgson, _Miscellaneous Essays_, i. 110 (Kócch). Post, _Grundriss
der ethnol. Jurisprudenz_, i. 213.]
[Footnote 66: Nelson, 'Eskimo about Bering Strait,' in _Ann. Rep.
Bur. Ethn._ xviii. 307. Dawson, _Australian Aborigines_, p. 7
(certain tribes of Western Victoria). Hunt, 'Ethnogr. Notes on
the Murray Islands, Torres Straits,' in _Jour. Anthr. Inst._
xxviii. 7. Grange, 'Journal of an Expedition into the Naga
Hills,' in _Jour. Asiatic Soc. Bengal_, ix. pt. ii. 964. Mason,
_ibid._ xxxvii. pt. ii. 142 (Karens). Post, _Entwicklungsgeschichte
des Familienrechts_, p. 303 _sqq._]
[Footnote 67: Dalager, _op. cit._ pp. 29, 31; Cranz, _op. cit._
i. 176 (Greenlanders). Risley, _op. cit._ p. 203 (Limbus of
Nepal). Macpherson, _op. cit._ p. 62 (Kandhs). Soppitt, _op.
cit._ p. 16 (Kukis). Fryer, _op. cit._ p. 6 (Khyens). Junghuhn,
_op. cit._ ii. 147 (Bataks). Gill, _Life in the Southern Isles_,
p. 46. Polack, _op. cit._ ii. 69; Colenso, _op. cit._ p. 33
(Maoris). Munzinger, _Die Sitten und das Recht der Bogos_, pp.
69, 73 _sq._ Paulitschke, _op. cit._ p. 192 (Gallas). Hollis,
_Masai_, p. 309; Hinde, _op. cit._ pp. 51, 105 (Masai). Volkens,
_Der Kilimandscharo_, p. 253 (Wadshagga). Kingsley, _Travels in
West Africa_, p. 485 (some West African tribes). Bosman, _op.
cit._ pp. 173 (natives of the Gold Coast), 322 (natives of the
Slave Coast). Leuschner, in Steinmetz, _Rechtsverhältnisse_, p.
20 (Bakwiri). Mademba, _ibid._ p. 81 (pagan Bambara). Desoignies,
_ibid._ p. 276 (Msalala). Marx, _ibid._ p. 355 (Amahlubi),
Chanler, _Through Jungle and Desert_, p. 316 (Rendile), Post,
_Afrikanische Jurisprudenz_, ii. 12 _sqq._ _Idem_, _Grundriss der
ethnol. Jurisprudenz_, i. 217, 218, 220 _sq._]
[Footnote 68: Proyart, 'History of Loango,' in Pinkerton,
_Collection of Voyages and Travels_, xvi. 571.]
[Footnote 69: Kingsley, _West African Studies_, p. 373 _sq._
(some West African tribes). Sorge, in Steinmetz, _Rechtsverhältnisse_,
p. 413 (Nissan Islanders).]
[Footnote 70: Risley, _op. cit._ p. 227 (Lusheis). Avebury,
_Origin of Civilisation_, p. 493 _sqq._ Post, _Grundriss, der
ethnol. Jurisprudenz_, i. 218, 221 _sq._ Liebrecht, _Zur
Volkskunde_, p. 432.]
[Footnote 71: Tickell, 'Memoir on the Hodésum,' in _Jour. Asiatic
Soc. Bengal_, ix. pt. ii. 794, n.*]
[Footnote 72: Risley, _op. cit._ p. 203. _Cf._ Mason, in _Jour.
Asiatic Soc. Bengal_, xxxvii. pt. ii. 142 (Karens).]
[Footnote 73: Nelson, in _Ann. Rep. Bur. Ethn._ xviii. 307.]
[Footnote 74: Dalager, _op. cit._ p. 33.]
[Footnote 75: Denham and Clapperton, quoted in Spencer's
_Descriptive Sociology_, African Races, p. 8.]
[Footnote 76: Stewart, in _Jour. Asiatic Soc. Bengal_, xxiv. 640.]
[Footnote 77: Hodgson, _Miscellaneous Essays_, i. 122.]
[Footnote 78: Burton, _Lake Regions of Central Africa_, ii. 23
_sq._ _Cf._ Post, _Afrikanische Jurisprudenz_, ii. 6.]
[Footnote 79: Nicole, in Steinmetz, _Rechtsverhältnisse_, pp.
115, 119 (Diakité-Sarracolese). Lang, _ibid._ pp. 238, 242
(Washambala). Kraft, _ibid._ pp. 289, 291 (Wapokomo). Rautanen,
_ibid._ p. 335 (Ondonga). Post, _Grundriss der ethnol.
Jurisprudenz_, i. 383.]
[Footnote 80: Munzinger, _Die Sitten und das Recht der Bogos_,
p. 73. Steinmetz, _Rechtsverhältnisse_, p. 43 (Banaka and Bapuku).
Mademba, _ibid._ p. 83 (natives of the Sansanding States). Post,
_Grundriss der ethnol. Jurisprudenz_, i. 383.]
At higher stages of civilisation the rules of inheritance present
the same characteristics as among many savages. During historic
times, at least, the nations of culture have reckoned kinship
through the father, and succession has been agnatic.[81] In China
women only inherit in the very last resort, failing all male
relatives.[82] Among the Hebrews, in ancient times, only sons,
not daughters, still less wives, could inherit;[83] but the later
law conferred on daughters the right of heirship in the absence
of sons.[84] The Muhammedan law of inheritance in most cases
awards to a female a share equal to half that of a male of the
same degree of relationship to the deceased;[85] but according to
the old law of Medina women could not inherit at all.[86] Of all
the ancient nations with whose rules of inheritance we are
acquainted, the Romans seem to have been the only one who gave
daughters the same right of inheritance as sons.[87] In India
women had originally no such right at all, but in this, as in
other matters relating to property, their position subsequently
improved.[88] In Attic law sons excluded {48} daughters from
succession,[89] and the same was the case among the Scandinavian
peoples still in the later Middle Ages.[90] In England women are
even to this day postponed to men in the order of succession to
real property.[91] Special privileges in the division of the
father's property were granted to the eldest son by the Hebrews[92]
and Hindus,[93] and traces of primogeniture are met with in ancient
Greek legislation.[94] In the history of English law we find not
only primogeniture, but ultimogeniture as well.[95] As regards the
question of legitimacy, we notice that in China all sons born in the
household have an equal share in the inheritance, whether born of
the principal wife or a concubine or a domestic slave.[96] Among
the Hebrews the sons of concubines had a right of inheritance,[97]
but whether on an equality with the other sons we do not
know.[98] According to Muhammedan law no distinction in point of
inheritance is made between the child of a wife and that borne by
a slave to her master, if the master acknowledge the child to be
his own.[99] In Hindu legislation the legitimate {49} sons have
the nearest right to the inheritance of their father, but a son
begotten by a Sûdra on a female slave may, if permitted by his
father, take a share of it.[100] The Roman law on the subject may
be summed up thus:--With regard to its father a natural child has
no right at all, and differs in no respect from a stranger; with
regard to its mother it has the same right as a legitimate
child.[101] In Teutonic countries the position of illegitimate
children as to succession was much more favourable in earlier
times than later on when Christianity made its influence felt,
depriving them of all title to inheritance.[102] Strangers were
formerly unable both to inherit and to transmit property. For a
long time it was the custom in Europe to confiscate their effects
on their death; and not only persons who were born in a foreign
country were subject to this _droit d'aubaine_, as it was called
in France, but in some countries it was applied even to persons
who removed from one diocese to another, or from the lands of one
baron to another.[103] Indeed, it is only in recent times that
foreigners have been placed on a footing of equality with
citizens with regard to inheritance. In 1790 the French National
Assembly abolished the right of _aubaine_ as being contrary to
the principle of a human brotherhood.[104] Later on, when the
Code Napoléon was drawn up, a backward step was taken by
restricting the abolition of this right to nations who acted with
reciprocity; but this limitation only lasted till 1819, when all
inequalities were finally removed in France.[105] In England it
was not until 1870 that foreigners were authorised to inherit and
bequeath like British subjects.[106]
[Footnote 81: See Westermarck, _op. cit._ p. 104.]
[Footnote 82: Alabaster, 'Law of Inheritance,' in _China Review_,
v. 193. 'Inheritance and "Patria Potestas" in China,' _ibid._
v. 406.]
[Footnote 83: _Genesis_, xxxi. 14 _sq._ _Numbers_, xxvii. 4.
Gans, _Das Erbrecht in weltgeschichtlicher Entwickelung_, i. 147.
Benzinger, 'Law and Justice,' in Cheyne and Black, _Encyclopædia
Biblica_, iii. 2728.]
[Footnote 84: _Numbers_, xxvii. 8. Gans, _op. cit._ i. 147.
Benzinger, _loc. cit._ p. 2729. It is only by exceptional favour
that the daughters inherit along with the sons (_Job_, xlii. 15).]
[Footnote 85: _Koran_, iv. 12, 175. Lane, _Manners and Customs of
the Modern Egyptians_, p. 116 _sq._ Kohler, _Rechtsvergleichende
Studien_, p. 102 _sqq._]
[Footnote 86: Robertson Smith, _Kinship and Marriage in Early
Arabia_, pp. 65, 117.]
[Footnote 87: Gans, _op. cit._ ii. 367 _sq._ Gide, _Étude sur la
condition privée de la femme_, p. 102.]
[Footnote 88: Jolly, _loc. cit._ pp. 83, 86. Kohler, 'Indisches
Ehe- und Familienrecht,' in _Zeitschr. f. vergl. Rechtswiss._
iii. 424 _sqq._ Leist, _Alt-arisches Jus Civile_, ii.
48.]
[Footnote 89: Gans, _op. cit._ i. 338, 341. Gide, _op. cit._ p. 79.]
[Footnote 90: Nordström, _Bidrag till den svenska
samhälls-författningens historia_, ii. 95, 190. Stemann, _Den danske
Retshistorie indtil Christian V.'s Lov_, p. 311 _sq._ Keyser,
_Efterladte Skrifter_, ii. pt. i. 330, 339.]
[Footnote 91: Renton, _Encyclopædia of the Laws of England_, xi. 75.]
[Footnote 92: _Deuteronomy_, xxi. 17. Gans, _op. cit._ i. 148.
Benzinger, in Cheyne and Black, _Encyclopædia Biblica_, iii.
2729. Mr. Jacobs suggests (_Studies in Biblical Archæology_, p.
49 _sqq._) that ultimogeniture was once the rule in early Hebrew
society, and was succeeded by primogeniture only when the
Israelites exchanged their roving life for one in which sons
became more stay-at-home.]
[Footnote 93: _Âpastamba_, ii. 6. 14. 6, 12. _Laws of Manu_, ix.
114. Jolly, _loc. cit._ pp. 77, 82. Maine, _Dissertations on
Early Law and Custom_, p. 89 _sq._ In China, though sons inherit
in equal shares, "it is not uncommon for the brothers to
temporarily yield up their share to the elder brother, either in
whole or in part, for the glory of the House" ('Inheritance and
"Patria Potestas" in China,' in _China Review_, v. 406; _cf._
Doolittle, _Social Life of the Chinese_, ii. 224; Davis, _China_,
i. 343).]
[Footnote 94: Fustel de Coulanges, _op. cit._ p. 99.]
[Footnote 95: Elton, _Origins of English History_, p. 178 _sqq._
Pollock and Maitland, _History of English Law till the Time of
Edward I._ ii. 263 _sqq._ The custom of ultimogeniture has also
been traced in Wales, parts of France, Germany, Friesland,
Scandinavia, Russia, and Hungary (Elton, _op. cit._ p. 180
_sqq._; Liebrecht, _op. cit._ p. 431 _sq._).]
[Footnote 96: Parker, 'Comparative Chinese Family Law,' in _China
Review_, viii. 79. 'Inheritance and "Patria Potestas" in China,'
_ibid._ v. 406. Medhurst, 'Marriage, Affinity, and Inheritance in
China,' in _Trans. Roy. Asiatic Soc. China Branch_, iv. 31.
Simcox, _Primitive Civilizations_, ii. 351.]
[Footnote 97: _Genesis_, xxi. 10 _sqq._]
[Footnote 98: Benzinger, in Cheyne and Black, _Encyclopædia
Biblica_, iii. 2729.]
[Footnote 99: Lane, _Modern Egyptians_, p. 118.]
[Footnote 100: Jolly, _loc. cit._ p. 85. _Laws of Manu_, ix. 179.]
[Footnote 101: Gide, _op. cit._ p. 567 _sqq._]
[Footnote 102: Nordström, _op. cit._ ii. 67, 200 _sqq._ See also
Alard, _Condition et droits des enfants naturels_, pp. 9, 11;
_supra_, i. 47.]
[Footnote 103: Brussel, _Nouvel examen de l'usage général des
fiefs en France_, ii. 944 _sqq._ de Laurière, _Glossaire du droit
françois_, p. 47 _sq._ Demangeat, _Histoire de la condition
civile des étrangers en France_, p. 107 _sqq._]
[Footnote 104: Demangeat, _op. cit._ p. 239.]
[Footnote 105: _Ibid._ p. 250 _sqq._]
[Footnote 106: _Naturalisation Act_, 1870, § 2.]
Besides acquisition by occupation, possession for a certain
length of time, labour, voluntary transfer, and inheritance,
there are instances in which ownership in a {50} thing directly
follows from ownership in another thing. It is a general rule
that the owner of an object also owns what develops from or is
produced by it.[107] The owner of a cow owns her calf, the owner
of a tree its fruits, the owner of a piece of land anything
growing on it, at least if no labour has been necessary for its
production. Ownership in land also gives a certain right to the
wild animals which are found there. Among the Fantis, for
instance, if anybody kills game on another person's land, its
proprietor is entitled to the shoulder or a quarter of such
game.[108] In this connection we have further to notice the mode
of acquisition which the Roman jurists called _accessio_. When
that which belongs to one person is so intermixed with the
property of another, that either it cannot be separated at all,
or cannot be separated without inflicting damage out of
proportion to the gain, the owner of the principal becomes the
owner of the accessory, though, as a rule, he would have to pay
compensation for it.[109]
[Footnote 107: See Post, _Grundriss der ethnol. Jurisprudenz_,
ii. 612; Goos, _Forelæsninger over den almindelige Retslære_,
ii. 159 _sqq._]
[Footnote 108: Sarbah, _op. cit._ p. 48.]
[Footnote 109: Hunter, _Roman Law_, p. 247 _sq._]
All these methods of acquisition apply not only to individual
property, but to common property as well. Occupation may
establish ownership whether there be many occupants or only one;
joint labour may lead to joint ownership in the produce; property
may be transferred to a body of persons as well as to a single
individual. But the custom which prescribes community of goods
may also itself be an independent method of acquisition: by
belonging to an association of people who hold property in common
a person may be part owner of a thing which has been occupied or
produced by some other member of the association. Communism of
one kind or another is undoubtedly a very ancient institution,[110]
though its prevalence at the lower stages of civilisation has
often been exaggerated.[111] But the whole question of {51}
common ownership is too complicated and lies too much apart from
our special subject to admit of a detailed treatment.
[Footnote 110: _Cf._ Kovalewsky, _Tableau des origines et de
l'évolution de la famille et de la propriété_, p. 51 _sqq._]
[Footnote 111: Dr. Dargun (in _Zeitschr. f. vergl. Rechtswiss._
v. 76, &c.) even goes so far as to say that savages know of no
other property but such as belongs to individuals; but this
statement is hardly justified by facts.]
* * * * *
From the statement of facts we shall now proceed to an
explanation of these facts. First, why do men recognise
proprietary rights at all? Why do the moral feelings of mankind
grant to certain persons a right to the exclusive disposal of
certain things, in other words, why does the disposal of an
object without the consent of the person called its owner give
rise to moral disapproval? The "right of property," it is true,
is generally used as a term for a legal right. But in this, as in
so many other cases, the legal right is essentially a formulated
expression of moral feelings.
As Mr. Spencer observes, the desire to appropriate, and to keep
that which has been appropriated, lies deep not only in human but
in animal nature, being, indeed, a condition of survival.[112]
Sticklebacks show obvious signs of anger when their territory is
invaded by other sticklebacks.[113] Birds defend their nests
against the attacks of intruders.[114] The dog fights for his
kennel or for the prey he has caught. A monkey in the Zoological
Gardens of London, which made use of a stone to open nuts, always
hid it in the straw after using it, and would not allow any other
monkey to touch it.[115] We find the same propensity in man from
his earliest years. At the age of two, Tiedemann's son did not
let his sister sit on his chair or take any of his clothes,
though he had no scruples against appropriating things which
belonged to her.[116] Owing to this tendency to keep an
appropriated object, and to resist its abstraction, it is
dangerous for an individual to try to seize anything held by
another of about equal strength; {52} and in human societies this
naturally led to the habit of leaving each in possession of
whatever he had attained, especially in early times when the
objects possessed were of little value, and there was no great
inequality of wealth.[117] This habit was further strengthened by
various circumstances, all of which tended to make interference
with other persons' possessions the subject of moral censure.
From both prudential and altruistic motives parents taught their
children to abstain from such interference, and this, by itself,
would readily give rise to the notion of theft as a moral wrong.
Society at large also tried to prevent acts of this kind, partly
in order to preserve peace and order, partly out of sympathy with
the possessor. Resentment is felt not only by him who is deprived
of his possession, but by others on his behalf. This is seen even
among some of the lower animals. The Pomeranian dogs of German
carters watch the goods of their masters;[118] Mr. Romanes's
terrier protected meat from other terriers, his offspring, which
lived in the same house with him, and with which he was on the
very best of terms;[119] Captain Gordon Stables's cat, which had
her place on the table at meals, never allowed any unauthorised
interference with the viands.[120] In men such sympathetic
resentment naturally develops into genuine moral disapproval.
[Footnote 112: Spencer, _Principles of Sociology_, ii. 644.]
[Footnote 113: _Supra_, i. 22.]
[Footnote 114: Perty, _Das Seelenleben der Thiere_, p. 68.]
[Footnote 115: Darwin, _Descent of Man_, i. 125. See also
Fischer, 'Notes sur l'intelligence des singes,' in _Revue
scientifique_, xxxiii. 618.]
[Footnote 116: Compayré, _L'évolution intellectuelle et morale de
l'enfant_, p. 312.]
[Footnote 117: _Cf._ Spencer, _Principles of Sociology_, ii. 634,
644; Dargun, in _Zeitschr. f. vergl. Rechtswiss._ v. 79 _sq._;
von Martius, _Beiträge zur Ethnographie Amerika's_, i. 88, 90.]
[Footnote 118: Peschel, _Races of Man_, p. 240.]
[Footnote 119: Romanes, 'Conscience in Animals,' in _Quarterly
Journal of Science_, xiii. 156, n.*]
[Footnote 120: 'Studies in Animal Life,' in _Chambers's Journal_,
1884, p. 824.]
All this applies not only to proprietary rights based on
occupation, but also to the principle of continued possession as
a ground of ownership. Indeed, the longer a person is in
possession of a certain object, the more apt are both he and
other individuals to resent its alienation; whereas the loss or
abandonment of a thing has a tendency to loosen the connection
between the thing and its owner.[121] This is undoubtedly the
chief source of the rule of prescription, {53} though there may be
other circumstances as well which help to justify it. Thus it has
been said that it is necessary to the security of rightful
possessors that they should not be molested by charges of
wrongful acquisition when by the lapse of time witnesses must
have perished or been lost sight of, and the real character of
the transaction can no longer be cleared up;[122] whilst another
argument adduced in favour of prescription is, that long
possession generally implies labour and that labour gives
ownership.[123] The reason why property is gained by labour is
obvious enough. Not only do exertions in producing an object make
the producer desirous to keep it and to have the exclusive
disposal of it, but an encroachment upon the fruit of his labour
arouses sympathetic resentment in outsiders, who feel that an
effort deserves its reward.
[Footnote 121: _Cf._ Hume, _Treatise of Human Nature_, ii. 3
(_Philosophical Works_, ii. 274):--"What has long lain under our
eye, and has often been employed to our advantage, _that_ we are
always the most unwilling to part with."]
[Footnote 122: Mill, _Principles of Political Economy_, i. 272.]
[Footnote 123: Thiers, _op. cit._ p. 103 _sqq._]
As the recognition of ownership thus ultimately springs from a
desire in the owner to keep and dispose of what he has
appropriated or produced, it is evident that, in ordinary
circumstances, there would be no moral disapproval of a voluntary
transfer of property to another person. But the case is different
if such a transfer is injurious to the interests of persons who
have a special claim to consideration. Thus testation is
frequently held to be inconsistent with the duties which parents
owe to their children or other near relatives to one another. The
father, though the lord of the family's possessions, may indeed
be regarded only as the first magistrate of an association, and
in such a case his share in the division naturally devolves on
the member of the family who succeeds to his authority.[124] The
right of inheritance, then, may be intimately connected with the
idea that the heir was, in a manner, joint owner of the deceased
person's property already during his lifetime.[125] But there are
{54} various other facts which account for the existence of this
right. In early civilisation the rule of succession is part of a
comprehensive system of rights and duties which unite persons of
the same kin. Professor Robertson Smith observes that in ancient
Arabia all persons on whom the duty of blood-revenge lay
originally had the right of inheritance;[126] and a similar
connection between inheritance and blood-revenge is found among
other peoples. This system of mutual rights and duties is
generally one-sided, it has reference either to paternal or to
maternal relatives, but not to both at once. Now, whatever be the
reason why the one or the other method of reckoning kinship
prevails among a certain people, it is in the present place
sufficient to point out the influence which the idea of a common
descent exercises upon the right of inheritance owing to its
power of knitting together the persons to whom it refers.
Besides, the duty connected with this right may also be of such a
nature as to require a certain amount of wealth for its
performance; among the Hindus, Greeks, and Romans, the right to
inherit a dead man's property was exactly co-extensive with the
duty of performing his obsequies and offering sacrifices to his
spirit.[127] A further cause of children inheriting their
father's property may be that they, to some extent, have
previously been in joint possession of it; for, as we know,
possession readily leads to ownership. They would have an
additional claim to succeed to his property when it had been
gathered by their labour, as well as his, or when they stood in
need of the support which it had been the father's duty to give
them had he been alive. Moreover, where a person's children are
present on the spot at his death, they are apt to be the first
occupants of his {55} property;[128] and we have noticed the
importance of first occupancy as a means of establishing
proprietary rights. The influence of these latter considerations,
which are independent of the method of tracing descent, is
apparent from the fact that among several peoples inheritance
runs in the male line even though children take the mother's name
and are considered to belong to her clan.[129] It may be added
that a reason which modern writers often have assigned for giving
the property of a person who dies intestate to his children or
other near relatives is the supposition that in so disposing of
it the law is only likely to do what the proprietor himself would
have done, if he had done anything.[130]
[Footnote 124: Plato, _Leges_, xi. 923. Maine, _Ancient Law_, p.
184. Fustel de Coulanges, _op. cit._ p. 85. Leist, _Alt-arisches
Jus Civile_, ii. 48. Mill, _op. cit._ i. 274. Kovalewsky,
_Coutume contemporaine et loi ancienne_, p. 198 (Ossetes).]
[Footnote 125: It is interesting to note that in the Chinese
penal code stealing from a relative is punished less severely
than other cases of theft, and that the mitigation of the
punishment is proportionate to the nearness of the relationship
(_Ta Tsing Leu Lee_, sec. cclxxii. p. 287). The reason for this
is that, "according to the Chinese patriarchal system, a theft is
not in this case a violation of an exclusive right, but only of
the qualified interest which each individual has in his share of
the family property" (Staunton, _ibid._ p. 287, n.*).]
[Footnote 126: Robertson Smith, _Kinship and Marriage in Early
Arabia_, pp. 55, 56, 66 _sq._]
[Footnote 127: _Laws of Manu_, ix. 186 _sq._ Isaeus, _Oratio de
Philoctemonis hereditate_, 51. Cicero, _De legibus_, ii. 19 _sq._
Fustel de Coulanges, _op. cit._ p. 84. Maine, _Ancient Law_, p.
191 _sq._]
[Footnote 128: _Cf._ Mill, _op. cit._ i. 274.]
[Footnote 129: Westermarck, _History of Human Marriage_,
pp. 104, 111.]
[Footnote 130: Hume, _Treatise of Human Nature_, ii. 3
(_Philosophical Works_, ii. 280). Godwin, _Enquiry concerning
Political Justice_, ii. 438. Mill, _op. cit._ i. 275.]
In details the rules of succession are influenced by a variety of
circumstances. Women may be excluded from inheritance or receive
a smaller share than the men because the latter, being the
stronger party, appropriate everything or the larger portion of
the property for themselves;[131] or because the women are less
in need of property, being supported by their male relatives or
husbands;[132] or because they are exempt from the heaviest
duties connected with kinship, as the duty of blood-revenge;[133]
or, as was the case in the feudal system, because a female tenant
is naturally unable to attend the lord in his wars;[134] or for
the purpose of preventing the estate from passing to another
family or tribe.[135] The idea of keeping together the property
of the house also largely is at the bottom of the rule of
primogeniture. {56} Besides, the eldest son is the most respected
among the children, sometimes he is regarded quite as a sacred
being.[136] On the death of the head of the family he is
generally better suited than anybody else to take his place; and
his privileged position with regard to inheritance is justified
by the duties connected with it, especially the duty of looking
after and supporting the other members of the household.[137] In
feudalism, where tenancy implied duties as well as rights, it was
also, from the lord's point of view, the simplest arrangement
that when a tenant died a single person should fill the vacant
place.[138] But there are many other points of view which may
determine the rules of succession. It may be thought just that
each child should have an equal share in the inheritance, and
that something should be given also to the widow, whose
maintenance devolved on the husband and who, whilst he was alive,
had been in joint possession of many of his belongings. Or the
youngest son may be the chief or the exclusive heir, partly
perhaps for the sake of preventing a division of the property, or
because the lord would have but one tenant,[139] but partly also
because he had remained with his father till his death,[140] or
"on the plea of his being less able to help himself on the death
of the parents than his elder brethren, who have had their
father's assistance in settling themselves in the world during
his lifetime."[141] The Wanyamwezi, again, justify the practice
of leaving property {57} to their illegitimate children by slave
girls or concubines, to the exclusion of their legitimate
offspring, "by the fact of the former requiring their assistance
more than the latter, who have friends and relatives to aid
them."[142] Generally there seems to be a close connection
between illegitimate children's right to inheritance and the
legal recognition of polygamous practices. This is indicated by a
comparison between Oriental and Roman legislation on the subject,
and, in Teutonic countries, between ancient custom and the later
law, which was influenced by Christianity's horror of sexual acts
falling outside the monogamous marriage relation. The privileges
which Hindu law grants to the illegitimate children of Sûdras are
due to the notion that the marriage of a member of this caste is
itself considered to be of so low a nature as to be on a par with
irregular connections.[143]
[Footnote 131: _Cf._ Campbell, _Travels in South Africa_, p. 520
(Kafirs).]
[Footnote 132: _Cf._ Cranz, _op. cit._ i. 176 (Greenlanders);
Macpherson, _Memorials of Service in India_, p. 62 (Kandhs);
Hinde, _op. cit._ p. 51 (Masai); 'Inheritance and "Patria
Potestas" in China,' in _China Review_, v. 406; Jolly, _loc.
cit._ p. 83 (ancient Hindus); Post, _Entwicklungsgeschichte des
Familienrechts_, p. 296 _sq._; _Idem_, _Grundriss der ethnol.
Jurisprudenz_, i. 218 _sq._]
[Footnote 133: _Cf._ Robertson Smith, _Kinship and Marriage in
Early Arabia_, p. 65 _sq._; Stemann, _Den danske Retshistorie
indtil Christian V.'s Lov_, p. 311 _sq._]
[Footnote 134: _Cf._ Cleveland, _Woman under the English Law_,
p. 83.]
[Footnote 135: Shortland, _Traditions and Superstitions of the
New Zealanders_, p. 256. Kingsley, _Travels in West Africa_, p.
485. Post, _Grundriss der ethnol. Jurisprudenz_, i. 214. _Cf._
_Numbers_, xxxvi. 1 _sqq._]
[Footnote 136: _Supra_, i. 605, 606, 614. Gill, _Life in the
Southern Isles_, p. 46 _sq._]
[Footnote 137: Dalager, _op. cit._ pp. 29, 31; Cranz, _op. cit._
i. 176 (Greenlanders). Munzinger, _Die Sitten und das Recht der
Bogos_, p. 74. Hinde, _op. cit._ p. 51 (Masai). Of the B[=a]gdis
of Bengal Mr. Risley expressly says (_op. cit._ p. 183) that the
extra share which is given to the eldest son "seems to be
intended to enable him to support the female members of the
family, who remain under his care."]
[Footnote 138: Pollock and Maitland, _op. cit._ ii. 274.]
[Footnote 139: _Ibid._ ii. 280.]
[Footnote 140: Risley, _op. cit._ p. 227 (Lusheis). Among the
Angami Nagas the youngest son nearly always inherits his father's
house, because sons, when marrying, leave the paternal mansion
and build houses of their own (_ibid._ p. 209). It has been
suggested that the custom of ultimogeniture "would naturally
arise during the latter stages of the pastoral period, when the
elder sons would in the ordinary course of events have 'set up
for themselves' by the time of the father's death" (Jacobs,
_Studies in Biblical Archæology_, p. 47; Gomme, quoted _ibid._ p.
47, n. 1; Blackstone, _Commentaries on the Laws of England_,
ii. 70 _sq._).]
[Footnote 141: Tickell, in _Jour. Asiatic Soc. Bengal_, ix. pt.
ii. 794, n.*]
[Footnote 142: Burton, _Lake Regions of Central Africa_,
ii. 23 _sq._]
[Footnote 143: Jolly, _loc. cit._ p. 85.]
Of the incapacity of children, wives, and slaves to acquire
property for themselves little needs to be said, in the present
connection, by way of explanation. Their exclusion from the right
of independent ownership is an incident of their subjection to
their parents, husbands, or masters. But we must remember that,
whilst the latter have a right to dispose of the earnings of
their subordinates, they also have the duty of supporting them,
and that in early civilisation the child and the wife, sometimes
even the slave,[144] are practically, as it were, joint owners of
goods which in theory belong to the head of the family alone.
[Footnote 144: Volkens, _op. cit._ p. 249 (Wadshagga).]
We have still to explain the variations of moral judgments with
regard to different acts of theft. That the condemnation of the
offence varies in degree according to the value of the stolen
goods follows from the fact that theft is disapproved of on
account of the injury done to the owner. But in many cases, when
the injury is very slight, the appropriation of another person's
property is {58} justified by the needs of him who took it. And
frequently, also, the condemnation of the thief is more concerned
with his encroachment upon a neighbour's right than with
measuring the exact amount of harm inflicted. Among the Basutos,
says Casalis, "the idea of theft is expressed by a generic word
which refers to the violation of right, much more than to the
damage caused."[145] Burglary is regarded as an aggravated form
of theft partly because it adds a fresh offence, the illicit
entering into another person's house, to that against property,
partly because it proves great premeditation in the
offender.[146] Robbery is likewise a double offence, implying, as
it does, an act of violence, and may on that account be more
severely censured than ordinary theft; but in other cases the
courage and strength displayed by the robber is looked upon as a
mitigating circumstance, and sometimes substitutes admiration for
disapproval, whereas the secret offender is despised as a coward.
So, too, the secrecy of nocturnal theft may aggravate the crime,
whilst at the same time the difficulty in providing against it
may induce society to increase the punishment. But men are apt to
admire not only bravery and force, but also dexterity and pluck,
hence the appreciation of adroit theft. The same tendency in some
measure accounts for the distinction between manifest and
non-manifest theft; but here we have in the first place to
remember that strong emotions are more easily aroused by the
sight of an act than by the mere knowledge of its commission.[147]
That the moral valuation of theft varies according to the station
of the thief and the person robbed is due to the same causes as
are similar variations with regard to other injuries; and
so is the distinction between offences against the property of a
tribesman or fellow-countryman and offences against the property
of a stranger. The theory of the Roman jurists according to which
the property of an enemy in war belongs to nobody as long as the
hostilities last, and therefore becomes the property of the {59}
captor by the right of occupation,[148] is only a play with words
intended to give a reasonable justification to a practice which
is really due to lack of regard for the feelings of strangers.
When men at an early stage of civilisation respect a stranger's
property the motive is undoubtedly in the main prudential.
Savages may be anxious to prevent theft from a neighbouring tribe
in order to avoid disagreeable consequences.[149] And I venture
to think that the honesty they often display with regard to
objects belonging to strangers who visit them, and especially
with regard to things left in their charge,[150] largely springs
from superstitious fear. We have noticed before that even the
acceptance of gifts is supposed to be connected with supernatural
danger, owing to the baneful magic energy with which the gift is
suspected to be saturated.[151] Would not the same apply to the
illicit appropriation of a stranger's belongings, and especially
to trusts, which naturally call for great precaution on the part
of the owner? This leads us to a subject of considerable
importance in the history of property, namely, the influence
which magic and religious beliefs have exercised on the regard
for proprietary rights.
[Footnote 145: Casalis, _Basutos_, p. 304.]
[Footnote 146: _Cf._ Wilda, _op. cit._ p. 878 (ancient Teutons).]
[Footnote 147: _Supra_, i. 294.]
[Footnote 148: Hunter, _Roman Law_, p. 257. Puchta, _op. cit._
ii. 220.]
[Footnote 149: Sproat, _Scenes and Studies of Savage Life_,
p. 159 (Ahts). Scott Robertson, _Káfirs of the Hindu-Kush_, p. 440.]
[Footnote 150: See, besides statements referred to above,
Lumholtz, _Unknown Mexico_, i. 420, and ii. 477; Nordenskiöld,
_Vegas färd kring Asien och Europa_, ii. 140 _sq._ (Chukchi);
Worcester, _Philippine Islands_, p. 413 (Mangyans); Colenso, _op.
cit._ p. 43 (Maoris); Macdonald, _Light in Africa_, p. 212
(Bantu); Campbell, _Travels in South Africa_, p. 517, and Leslie,
_Among the Zulus and Amatongas_, p. 201 (Kafirs).]
[Footnote 151: _Supra_, i. 593 _sq._]
Theft is not only punished by men, but is supposed to be avenged
by supernatural powers. The Alfura of Halmahera are said to be
honest only because they fear that they otherwise would be
subject to the punishment of spirits.[152] The natives of Efate,
in the New Hebrides, maintained that theft was condemned by their
gods.[153] In Aneiteum, another island belonging to the same
group, thieves were supposed to be punished after death.[154] In
Netherland Island they {60} were said to go to a prison of
darkness under the earth;[155] according to the beliefs of the
Banks Islanders they were excluded from the true Panoi or
Paradise.[156] On the Gold Coast, "if a man had property stolen
from his house, he might go to the priest of the local deity he
was accustomed to worship, state the loss that had befallen him,
make an offering of a fowl, rum, and eggs, and ask the priest to
supplicate the god to punish the thief."[157] In Southern Guinea
fetishes are inaugurated to detect and punish certain kinds of
theft, and persons who are cognisant of such crimes and do not
give information about them are also liable to be punished by the
fetish.[158] The Bechuanas speak of an unknown being, vaguely
called by the name of Lord and Master of things (Mongalinto), who
punishes theft. One of them said: "When it thunders every one
trembles; if there are several together, one asks the other with
uneasiness, Is there any one amongst us who devours the wealth of
others? All then spit on the ground saying, We do not devour the
wealth of others. If a thunderbolt strikes and kills one of them,
no one complains, no one weeps; instead of being grieved, all
unite in saying that the Lord is delighted (that is to say, he
has done right) with killing that man; we also say that the thief
eats thunderbolts, that is to say, does things which draw down
upon men such judgments."[159]
[Footnote 152: Kükenthal, _Forschungsreise in den Molukken_, p. 188.]
[Footnote 153: Macdonald, _Oceania_, p. 208.]
[Footnote 154: Turner, _Samoa_, p. 326.]
[Footnote 155: _Ibid._ p. 301.]
[Footnote 156: Codrington, _Melanesians_, p. 274.]
[Footnote 157: Ellis, _Tshi-speaking Peoples of the Gold Coast_,
p. 75. See also Cruickshank, _op. cit._ ii. 152, 160, 184;
Schultze, _Der Fetischismus_, p. 91.]
[Footnote 158: Wilson, _Western Africa_, p. 275.]
[Footnote 159: Arbousset and Daumas, _Exploratory Tour to the
North-East of the Colony of the Cape of Good Hope_, p. 322 _sq._]
According to the Zoroastrian Yasts, Rashnu Razista was "the best
killer, smiter, destroyer of thieves and bandits."[160] In Greece
Zeus [Greek: ktê/sios] was a guardian of the family
property;[161] and according to a Roman tradition the domestic
god repulsed the robber and kept off the enemy.[162] The removing
of landmarks {61} has frequently been regarded as sacrilegious.[163]
It was strictly prohibited by the religious law of the
Hebrews.[164] In Greece boundaries were protected by Zeus [Greek:
o(/rios]. Plato says in his 'Laws':--"Let no one shift the
boundary line either of a fellow-citizen who is a neighbour, or,
if he dwells at the extremity of the land, of any stranger who is
conterminous with him. . . . Every one should be more willing to
move the largest rock which is not a land mark, than the least
stone which is the sworn mark of friendship and hatred between
neighbours; for Zeus, the god of kindred, is the witness of the
citizen, and Zeus, the god of strangers, of the stranger, and
when aroused terrible are the wars which they stir up. He who
obeys the law will never know the fatal consequences of
disobedience, but he who despises the law shall be liable to a
double penalty, the first coming from the Gods, and the second
from the law."[165] The Romans worshipped Terminus or Jupiter
Terminalis as the god of boundaries.[166] According to an old
tradition, Numa directed that every one should mark the bounds of
his landed property by stones consecrated to Jupiter, that yearly
sacrifices should be offered to them at the festival of the
Terminalia, and that, "if any person demolished or displaced
these bound-stones, he should be looked upon as devoted to this
god, to the end that anybody might kill him as a sacrilegious
person with impunity and without being defiled with guilt."[167]
In the higher religions theft of any kind is frequently condemned
as a sin.
[Footnote 160: _Yasts_, xii. 8.]
[Footnote 161: Aeschylus, _Supplices_, 445. Farnell, _Cults of
the Greek States_, i. 55.]
[Footnote 162: Ovid, _Fasti_, v. 141.]
[Footnote 163: Trumbull, _The Threshold Covenant_, p. 166 _sq._]
[Footnote 164: _Deuteronomy_, xix. 14; xxvii. 17. _Proverbs_,
xxii. 28; xxiii. 10 _sq._ _Hosea_, v. 10. _Cf._ _Job_, xxiv. 2.]
[Footnote 165: Plato, _Leges_, viii. 842 _sq._ Demosthenes,
_Oratio de Halonneso_, 39, p. 86. See also Hermann, _Disputatio
de terminis eorumque religione apud Græcos_, _passim_.]
[Footnote 166: Ovid, _Fasti_, ii. 639 _sqq._ Festus, _De verborum
significatione_ 'Termino.' Lactantius, _Divinæ Institutiones_, i.
10 (Migne, _Patrologiæ cursus_, vi. 227 _sqq._). Pauly,
_Real-Encyclopädie der classischen Alterthumswissenschaft_, vi.
pt. ii. 1707 _sqq._ Fowler, _Roman Festivals of the Period of the
Republic_, p. 324 _sqq._]
[Footnote 167: Dionysius of Halicarnassus, _Antiquitates Romanæ_,
ii. 74. Plutarch, _Numa_, xvi. i. Festus, _op. cit._ 'Termino.']
This religious sanction given to ownership is no doubt in some
measure due to the same circumstances as, in certain cases, make
morality in general a matter of divine {62} concern--a subject
which will be dealt with in a future chapter. But there are also
special reasons which account for it. Partly it has its origin in
magic practices, particularly in the curse.
Cursing is a frequent method of punishing criminals who cannot be
reached in any other way.[168] In the Book of Judges we read of
Micah's mother who had pronounced a curse with reference to the
money stolen from her, and afterwards, when her son had confessed
his guilt, hastened to render it ineffective by a blessing.[169]
In early Arabia the owner of stolen property had recourse to
cursing in order to recover what he had lost.[170] In Samoa "the
party from whom anything had been stolen, if he knew not the
thief, would seek satisfaction in sitting down and deliberately
cursing him."[171] The Kamchadales "think they can punish an
undiscovered theft by burning the sinews of the stonebuck in a
publick meeting with great ceremonies of conjuration, believing
that as these sinews are contracted by the fire so the thief will
have all his limbs contracted."[172] Among the Ossetes, if an
object has been secretly stolen, its owner secures the assistance
of a sorcerer. They proceed together to the house of any person
whom they suspect, the sorcerer carrying under his arm a cat,
which is regarded as a particularly enchanted animal. He
exclaims, "If thou hast stolen the article and dost not restore
it to its owner, may this cat torment the souls of thy
ancestors!" And such an imprecation is generally followed by a
speedy restitution of the stolen property. Again, if their
suspicions rest upon no particular individual, they proceed in the
same manner from house to house, and the thief then, knowing that his
turn must come, frequently confesses his guilt at once.[173] A common
mode of detecting the perpetrator of a theft is to compel the
suspected individual to make oath, {63} that is to say, to pronounce
a conditional curse upon himself.[174]
[Footnote 168: See, _e.g._, Mason, in _Jour. Asiatic Soc.
Bengal_, xxxvii. pt. ii. 149 (Karens).]
[Footnote 169: _Judges_, xvii. 2.]
[Footnote 170: Wellhausen, _Reste arabischen Heidentums_, p. 192.]
[Footnote 171: Turner, _Nineteen Years in Polynesia_, p. 318.]
[Footnote 172: Krasheninnikoff, _History of Kamschatka_, p. 179 _sq._]
[Footnote 173: von Haxthausen, _Transcaucasia_, p. 398 _sq._]
[Footnote 174: von Struve, in _Das Ausland_, 1880, p. 796
(Samoyedes). Worcester, _Philippine Islands_, p. 412 (Mangyans of
Mindoro). Turner, _Nineteen Years in Polynesia_, p. 292 _sq._
(Samoans). Bosman, _op. cit._ p. 125 (Negroes of the Gold Coast).
Bowdich, _Mission to Ashantee_, p. 267; &c.]
Cursing is resorted to not only for the purpose of punishing
thieves or compelling them to restore what they have stolen, but
also as a means of preventing theft. In the South Sea Islands it
is a common practice to protect property by making it _taboo_,
and the tabooing of an object is, as Dr. Codrington puts it, "a
prohibition with a curse expressed or implied."[175] The curse is
then, in many cases, deposited in some article which is attached
to the thing or place it is intended to protect. The mark of
taboo, in Polynesia called _rahui_ or _raui_, sometimes consists
of a cocoa-nut leaf plaited in a particular way,[176] sometimes
of a wooden image of a man or a carved post stuck in the
ground,[177] sometimes of a bunch of human hair or a piece of an
old mat,[178] and so forth. In Samoa there were various forms of
taboo which formed a powerful check on stealing, especially from
plantations and fruit-trees, and each was known by a special name
indicating the sort of curse which the owner wished would fall on
the thief. Thus, if a man desired that a sea-pike should run into
the body of the person who attempted to steal, say, his
bread-fruits, he would plait some cocoa-nut leaflets in the form
of a sea-pike, and suspend it from one or more of the trees which
he wanted to protect. This was called the "sea-pike taboo"; and
any ordinary thief would be terrified to touch a tree from which
this was suspended, believing that, if he did so, a fish of the
said description would dart up and mortally wound him the next
time he went to the sea. The "white shark taboo" was done by
plaiting a cocoa-nut leaf in the form of a shark, and was
tantamount to an {64} expressed imprecation that the thief might
be devoured by the white shark when he went to fish. The
"cross-stick taboo," again, consisted of a stick suspended
horizontally from the tree, and meant that any thief touching the
tree would have a disease running right across his body and
remaining fixed there till he died.[179] Exactly equivalent to
the taboo of the Pacific Islanders is the _pomali_ of the natives
of Timor; "a few palm leaves stuck outside a garden as a sign of
the _pomali_ will preserve its produce from thieves as
effectually as the threatening notice of man-traps, spring-guns,
or a savage dog, would do with us."[180] Among the Santals,
whenever a person "is desirous of protecting a patch of jungle
from the axes of the villagers, or a patch of grass from being
grazed over, or a newly sown field from being trespassed upon, he
erects a bamboo in his patch of grass or field, to which is
affixed a tuft of straw, or in the case of jungle some prominent
and lofty tree has the same prohibitory mark attached, which mark
is well understood and strictly observed by all parties
interested."[181] So also in Madagascar "on rencontre sur les
chemins, on voit dans les champs de longs bâtons munis à leur
sommet d'un paquet d'herbes et qui sont plantés en terre soit
pour interdire le passage du terrain soit pour indiquer que les
récoltes sont réservées à l'usage d'individus déterminés."[182]
Among the Washambala the owner of a field sometimes puts a stick
wound round with a banana leaf on the road to it, believing that
anybody who without permission enters the field "will be subject
to the curse of this charm."[183] The Wadshagga protect a
doorless hut against burglars by placing a banana leaf over the
threshold, and any maliciously inclined person who dares to step
over it is supposed to get ill or die.[184] The Akka "stick an
arrow in a bunch of bananas still on the stalk to mark it as
their own {65} when ripe," and then not even the owner of the
tree would think of touching the fruit so claimed by others.[185]
Of the Barotse we are told that "when they do not want a thing
touched they spit on straws and stick them all about the
object."[186] When a Balonda has placed a beehive on a tree, he
ties a "piece of medicine" round the trunk, and this will prove
sufficient protection against thieves.[187] Jacob of Edessa tells
us of a Syrian priest who wrote a curse and hung it on a tree,
that nobody might eat the fruit.[188] In the early days of Islam
a masterful man reserved water for his own use by hanging pieces
of fringe of his red blanket on a tree beside it, or by throwing
them into the pool;[189] and in modern Palestine nobody dares to
touch the piles of stones which are placed on the boundaries of
landed property.[190] The old inhabitants of Cumaná on the
Caribbean Sea used to mark off their plantations by a single
cotton thread, in the belief that anybody tampering with these
boundary marks would speedily die.[191] A similar idea seems
still to prevail among the Indians of the Amazon. Among the Jurís
a traveller noticed that in places where the hedge surrounding a
field was broken, it was replaced by a cotton string; and when
Brazilian Indians leave their huts they often wind a piece of the
same material round the latch of the door.[192] Sometimes they
also hang baskets, rags, or flaps of bark on their
landmarks.[193] In these and in various other instances just
referred to it is not expressly stated that the taboo mark
embodies a curse, but their similarity to cases in which it does
so is striking enough to {66} preclude much doubt about their
real meaning. It is true that an object which is sacred by itself
may, on that account, protect everything in its neighbourhood;[194]
in Morocco any article deposited in the _[h.]orm_ of a saint is
safe, and among pagan Africans the same effect is produced by
using fetishes as protectors of fields or houses.[195] But a
thing of inherent holiness may also be chosen for taboo purposes
for the reason that its sanctity is supposed to give particular
efficacy to any curse with which it may be loaded.
[Footnote 175: Codrington, _Melanesians_, p. 215.]
[Footnote 176: Taylor White, in _Jour. Polynesian Soc._ i. 275.]
[Footnote 177: Hamilton, _Maori Art_, p. 102; Thomson, _Story of
New Zealand_, i. 102; Polack, _op. cit._ ii. 70 (Maoris). Ellis,
_Polynesian Researches_, iii. 116 (Tahitians).]
[Footnote 178: Thomson, _op. cit._ i. 102 (Maoris). See also
Colenso, _op. cit._ p. 34 (Maoris); Ellis, _Polynesian
Researches_, iii. 201 (Tahitians).]
[Footnote 179: Turner, _Nineteen Years in Polynesia_, p. 294 _sqq._]
[Footnote 180: Wallace, _Malay Archipelago_, p. 149 _sq._]
[Footnote 181: Sherwill, 'Tour through the Rájmahal Hills,' in
_Jour. Asiatic Soc. Bengal_, xx. 568.]
[Footnote 182: van Gennep, _Tabou et totémisme à Madagascar_,
p. 184 _sqq._]
[Footnote 183: Lang, in Steinmetz, _Rechtverhältnisse_, p. 263.]
[Footnote 184: Volkens, _op. cit._ p. 254.]
[Footnote 185: Junker, _Travels in Africa during the Years
1882-1886_, p. 86.]
[Footnote 186: Decle, _op. cit._ p. 77.]
[Footnote 187: Livingstone, _Missionary Travels_, p. 285.]
[Footnote 188: Robertson Smith, _Religion of the Semites_,
p. 164, n. 1.]
[Footnote 189: _Ibid._ p. 336, n. 1.]
[Footnote 190: Pierotti, _Customs and Traditions of Palestine_,
p. 95 _sq._ According to Roman sources (_Digesta_, xlvii. 11. 9),
there was in the province of Arabia an offence called [Greek:
skopelismo/s], which consisted in laying stones on an enemy's
ground as a threat that if the owner cultivated the land "malo
leto periturus esset insidiis eorum, qui scopulos posuissent";
and so great was the fear of such stones that nobody would go
near a field where they had been put.]
[Footnote 191: Gomara, _Primera parte de la historia general de
las Indias_, ch. 79 (_Biblioteca de autores españoles_, xxii. 206).]
[Footnote 192: von Martius, _Von dem Rechtszustande unter den
Ureinwohnern Brasiliens_, p. 37 _sq._]
[Footnote 193: _Ibid._ p. 34.]
[Footnote 194: _Cf._ van Gennep, _op. cit._ p. 185 (natives of
Madagascar). It was an ancient Roman usage to inter the dead in
the field belonging to the family, and in the works of the elder
Cato there is a formula according to which the Italian labourer
prayed the manes to take good care against thieves (Fustel de
Coulanges, _op. cit._ p. 75). Cicero says (_Pro domo_, 41) that
the house of each citizen was sacred because his household gods
were there.]
[Footnote 195: Rowley, _Africa Unveiled_, p. 174. Bastian,
_Afrikanische Reisen_, p. 78 _sq._ 3 Nassau, _Fetichism in West
Africa_, p. 85. _Cf._ Schneider, _Die Religion der afrikanischen
Naturvölker_, p. 230. If we knew the ceremonies with which
magicians transform ordinary material objects into fetishes,
we might perhaps find that they charge them with curses.
Dr. Nassau says (_op. cit._ p. 85):--"For every human passion
or desire of every part of our nature, for our thousand
necessities or wishes, a fetich can be made, its operation being
directed to the attainment of one specified wish." See also
Schultze, _Der Fetischismus_, p. 109.]
We have previously noticed another method of charging a curse
with magic energy, namely, by giving it the form of an appeal to
a supernatural being.[196] So also spirits or gods are frequently
invoked in curses referring to theft. On the Gold Coast, "when
the owner of land sees that some one has been making a clearing
on his land, he cuts the young inner branches of the palm tree
and hangs them about the place where the trespass has been
committed. As he hangs each leaf he says something to the
following effect: 'The person who did this and did not make it
known to me before he did it, if he comes here to do any other
thing, may fetish Katawere (or Tanor or Fofie or other fetish)
kill him and all his family.'"[197] In Samoa, in the case of a
theft, the suspected persons had to swear before the chiefs, each
one invoking the village god to send swift destruction if he had
committed the crime; and if all had sworn and the culprit was
still undiscovered, the chiefs solemnly made a similar invocation
on behalf of the {67} thief.[198] The Hawaiians seem likewise to
have appealed to an avenging deity in certain cursing ceremonies,
which they performed for the purpose of detecting or punishing
thieves.[199] In ancient Greece it was a custom to dedicate a
lost article to a deity, with a curse for those who kept it.[200]
Of the Melanesian taboo, again, Dr. Codrington observes that the
power at the back of it "is that of the ghost or spirit in whose
name, or in reliance upon whom, it is pronounced."[201] In
Ceylon, "to prevent fruit being stolen, the people hang up
certain grotesque figures around the orchard and dedicate it to
the devils, after which none of the native Ceylonese will dare
even to touch the fruit on any account. Even the owner will not
venture to use it till it be first liberated from the
dedication."[202] On the landmarks of the ancient Babylonians,
generally consisting of stone pillars in the form of a phallus,
imprecations were inscribed with appeals to various deities. One
of these boundary stones contains the following curse directed
against the violator of its sacredness:--"Upon this man may the
great gods Anu, Bêl, Ea, and Nusku, look wrathfully, uproot his
foundation, and destroy his offspring"; and similar invocations
are then made to many other gods.[203]
[Footnote 196: _Supra_, i. 564.]
[Footnote 197: _Jour. African Soc._ 110 xviii. January, 1906, p. 203.]
[Footnote 198: Turner, _Samoa_, p. 19. _Idem_, _Nineteen Years in
Polynesia_, p. 292 _sq._]
[Footnote 199: Jarves, _History of the Hawaiian Islands_, p. 20.]
[Footnote 200: Rouse, _Greek Votive Offerings_, p. 339.]
[Footnote 201: Codrington, _op. cit._ p. 215.]
[Footnote 202: Percival, _Account of the Island of Ceylon_, p. 198.]
[Footnote 203: Trumbull, _The Threshold Covenant_, p. 166 _sq._
Hilprecht, quoted _ibid._ p. 167 _sqq._]
Now we can understand why gods so frequently take notice of
offences against property. They are invoked in curses uttered
against thieves; the invocation in a curse easily develops into a
genuine prayer, and where this is the case the god is supposed to
punish the offender of his own free will. Besides, he may be
induced to do so by offerings. And when often appealed to in
connection with theft, a supernatural being may finally come to
be looked upon as a guardian of property. This, for instance, I
take to be the explanation of the belief prevalent among the
Berbers {68} of [H.]a[h.]a, in Southern Morocco, that some of the
local saints punish thieves who approach their sanctuaries, even
though the theft was committed elsewhere; being constantly
appealed to in oaths taken by persons suspected of theft, they
have become the permanent enemies of thieves. We can, further,
understand why in some cases certain offences against property
have actually assumed the character of a sacrilege, even apart
from such as are committed in the proximity of a supernatural
being. Curses are sometimes personified and elevated to the rank
of divine agents; this, as we have seen, is the origin of the
Erinyes of parents, beggars, and strangers, and of the Roman
_divi parentum_ and _dii hospitales_; and this is also in all
probability the origin of the god Terminus.[204] Or the curse may
be transformed into an attribute of the chief god, not only
because he is frequently appealed to in connection with offences
of a certain kind, but also because such a god has a tendency to
attract supernatural forces which are in harmony with his general
nature. This explains the origin of conceptions such as Zeus
[Greek: o(/rios] and Jupiter Terminalis, as well as the extreme
severity with which Yahweh treated the removal of landmarks. In
all these cases there are indications of a connection between the
god and a curse. Apart from other evidence to be found in Semitic
antiquities, there is the anathema of _Deuteronomy_, "Cursed be
he that removeth his neighbour's landmark."[205] That the
boundary stones dedicated to Zeus [Greek: o(/rios] were
originally charged with imprecations appears from a passage in
Plato's 'Laws' quoted above,[206] as also from inscriptions made
on them.[207] The Etruscans cursed anyone who should touch or
displace a boundary mark:--Such a person shall be condemned by
the gods; his house shall disappear; his race shall be
extinguished; his limbs shall be covered with ulcers and waste
away; his land shall no longer produce {69} fruits; hail, rust,
and the fires of the dog-star shall destroy his harvests.[208]
Considering the important part played by blood as a conductor of
imprecations, it is not improbable that the Roman ceremony of
letting the blood of a sacrificial animal flow into the hole
where the landmark was to be placed[209] was intended to give
efficacy to a curse. In some parts of England a custom of
annually "beating the bounds" of a parish has survived up to the
present time, and this ceremony was formerly accompanied by
religious services, in which a clergyman invoked curses on him
who should transgress the bounds of his neighbour, and blessings
on him who should regard the landmarks.[210]
[Footnote 204: _Cf._ Festus, _op. cit._ 'Termino':--"Numa
Pompilius statuit eum, qui terminum exarasset, et ipsum, et boves
sacros esse."]
[Footnote 205: _Deuteronomy_, xxvii. 17. _Cf._ _Genesis_,
xxxi. 44 _sqq._]
[Footnote 206: Plato, _Leges_, viii. 843: ". . . [Greek: ê)\n smikron
li/thon o(ri/zonta philai/n kai\ e)/chthran e)/norkon
para\ theô=n.]"]
[Footnote 207: Xenophon, _Anabasis_, v. 3. 13. Hermann,
_Disputatio de terminis apud Græcos_, p. 11.]
[Footnote 208: _Rei agrariæ auctores legesque variæ_, edited by
G[oe]sius, p. 258 _sq._]
[Footnote 209: Siculus Flaccus, 'De conditionibus agrorum,' in
_Rei agrariæ auctores_, p. 5.]
[Footnote 210: Dibbs, 'Beating the Bounds,' in _Chambers's
Edinburgh Journal_, N.S. xx. (1853) 49 _sqq._ Trumbull, _The
Threshold Covenant_, p. 174 _sq._]
The practice of cursing a thief may possibly even be at the
bottom of the belief of some savages that such a person will be
punished after death. In a following chapter we shall notice
instances where the efficacy of a curse is supposed to extend
beyond the grave. But we shall also find other reasons for savage
doctrines of retribution in the world to come. In the cases
referred to above it is not expressly said that the _post mortem_
punishment of the thief is inflicted by a god.
* * * * *
I have here only dealt with rules relating to property which have
been recognised by custom or law. But the established principles
of ownership have not always been admitted to be just: in the
civilised countries of the West they have called forth an
opposition which is rapidly gaining in strength. The limited
scope of the present work does not allow me to attempt a detailed
account of this movement, with its variety of arguments and its
multitudinous schemes of reform. The main reasons for complaint
are:--first, that our actual law of property does not ensure to
every labourer the whole produce of his labour; secondly, that it
does not provide for every want {70} a satisfaction proportionate
to the available means. However much the opinions of the
different schools of socialists may vary, every socialist
organisation of property aims either at guaranteeing to the
working-classes the entire product of their industry, or at
reducing to just proportions individual needs and existing means
of satisfaction by recognising the claim of every member of
society to the commodities and services necessary to support
existence, in preference to the satisfaction of the less pressing
wants of others.[211] These aims are greatly hampered by the
present system, in which land and capital are the property of
private individuals freely struggling for increase of wealth, and
especially by the legally recognised existence of unearned
income[212]--the "rent" of the Saint-Simonians, the "surplus
value" (_Mehrwert_) of Thompson and Marx,--for which the favoured
recipient returns no personal equivalent to society, and which he
is able to pocket because the wage labourer receives in
money-wages less than the full value of the produce of his work.
We have here a conflict between different principles of
acquisition. Both the rule that the owner of a thing also owns
what results from it, and the law of inheritance, leading as they
do to unearned income, are intruding upon the principle of labour
as a source of property. They, moreover, interfere with the right
to subsistence, which in some measure, though often insufficiently,
is recognised in all human societies;[213] for, as Marx observed,
the accumulation of wealth at one pole means the accumulation of
misery at the opposite pole.[214] This conflict between different
principles or rights, all of which have deep foundations in human
nature and the conditions of social life, has been brought about
by certain {71} facts inherent in progressive civilisation. In
simple societies the unearned income is small, because no fortunes
exist, and the wants of those who are incapable of earning their
own livelihood are provided for by the system of mutual aid.
Progress in culture, on the other hand, has been accompanied by
a more unequal distribution of wealth, and also by a decrease of
social solidarity as a result of the increase and greater
differentiation of the social unit. The unearned income has grown
larger, the disproportion between the returns on capital and the
reward for labour has in many cases become enormous, and hand in
hand with the opulence of some goes the destitution of others. At
the same time the injustice of prerogatives based on birth or
fortune is keenly felt, the dignity of labour is recognised, and
the working-classes are every day becoming more conscious both of
their power and their rights. All this has resulted in a strong
and wide-spread conviction that the actual law of property
greatly differs from the ideal law. But much struggle will no
doubt be required to bring them in harmony with one another. The
present rights of property are supported not only by personal
interests, but also by a deep-rooted feeling, trained in the
school of tradition, that it would be iniquitous of the State to
interfere with individuals' long-established claims to use at
their pleasure the objects of wealth. The new scheme, on the
other hand, derives strength from the fact that it aims at
rectifying legal rights in accordance with existing needs, and
that it lays stress on a method of acquisition which more than
any other seems to appeal to the natural sense of justice in man.
We are utterly unable to foresee in detail the issue of this
struggle. But that the law of property will sooner or later
undergo a radical change must be obvious to every one who
realises that, though ideas of right and wrong may for some time
outlive the conditions from which they sprang, they cannot do so
for ever.
[Footnote 211: See Menger, _Right to the whole Produce of
Labour_, p. 5 _sqq._, Goos, _op. cit._ ii. 61.]
[Footnote 212: The term "unearned income" (_arbeitsloses
Einkommen_) has been proposed by Menger (_op. cit._ p. 3).]
[Footnote 213: See _supra_, ch. xxiii., vol. i. 526 _sqq._ Among
the Eskimo about Behring Strait (Nelson, in _Ann. Rep. Bur.
Ethn._ xviii. 294) and the Greenlanders (Rink, _Eskimo Tales_, p.
29 _sq._), if a man borrows an article from another and fails to
return it, the owner is not entitled to claim it back, as they
consider that when a person has enough property to enable him to
lend some of it he has more than he needs.]
[Footnote 214: Marx, _Capital_, p. 661.]
CHAPTER XXX
THE REGARD FOR TRUTH AND GOOD FAITH
THE regard for truth implies in the first place that we ought to
abstain from lying, that is, a wilful misrepresentation of facts,
by word or deed, with the intention of producing a false belief.
Closely connected with this duty is that of good faith or
fidelity to promises, which requires that we should make facts
correspond with our emphatic assertions as to our conduct in the
future. Within certain limits these duties seem to be universally
recognised, though the censure passed on the transgressor varies
extremely in degree. But there are also many cases in which
untruthfulness and bad faith are looked upon with indifference,
or even held laudable or obligatory.
Various uncivilised races are conspicuous for their great regard
for truth; of some savages it is said that not even the most
trying circumstances can induce them to tell a lie. Among others,
again, falsehood is found to be a prevailing vice and the
successful lie a matter of popular admiration.
All authorities agree that the Veddahs of Ceylon are models of
veracity. They "are proverbially truthful and honest."[1] They
think it perfectly inconceivable that any person should say
anything which is not true.[2] Mr. Nevill writes, "I never knew a
true Vaedda to tell a lie, and the Sinhalese give them the same
character."[3] Messrs. Sarasin had a similar experience:{73}--"The
genuine Wood-Wedda always speaks the truth; we never heard a lie
from any of them; all their statements are short and true."[4] A
Veddah who had committed murder and was tried for it, instead of
telling a lie in order to escape punishment, said simply nothing.[5]
[Footnote 1: Bailey, 'Wild Tribes of the Veddahs of Ceylon,' in
_Trans. Ethn. Soc._ N.S. ii. 291.]
[Footnote 2: Hartshorne, in _Indian Antiquary_, viii. 320.]
[Footnote 3: Nevill, in _Taprobanian_, i. 193.]
[Footnote 4: Sarasin, _Forschungen auf Ceylon_, iii. 541. _Cf._
_ibid._ iii. 542 _sq._; Schmidt, _Ceylon_, p. 276.]
[Footnote 5: Sarasin, _op. cit._ iii. 543.]
Other instances of extreme truthfulness are provided by various
uncivilised tribes in India. The Saoras of the province of
Madras, "like most of the hill people, . . . are not inclined to
lying. If one Saora kill another he admits it at once and tells
why he killed him."[6] The highlander of Central India is
described as "the most truthful of beings, and rarely denies
either a money obligation or a crime really chargeable against
him."[7] A true Gond "will commit a murder, but he will not tell
a lie."[8] The Kandhs, says Macpherson, "are, I believe, inferior
in veracity to no people in the world. . . . It is in all cases
imperative to tell the truth, except when deception is necessary
to save the life of a guest."[9] And to break a solemn pledge of
friendship is, in their opinion, one of the greatest sins a man
can commit.[10] The Korwás inhabiting the highlands of
Sirgúja--though they show great cruelty in committing robberies,
putting to death the whole of the party attacked, even when
unresisting--"have what one might call the savage virtue of
truthfulness to an extraordinary degree, and, rightly accused,
will at once confess and give you every required detail of the
crime."[11] The Santals are noted for veracity and fidelity to
their word even in the most trying circumstances.[12] A Kurubar
"always speaks the truth."[13] Among the Hos "a reflection on a
man's honesty or veracity may be sufficient to send him to
self-destruction."[14] Among the Angami Nagas simple truth is
highly regarded; it is rare for a statement to be made on oath,
and rarer still for it to be false.[15] In the Chittagong Hills
the Tipperahs are the only people among whom Captain Lewin {74}
has met with meanness and lying;[16] and they, too, have
previously been said to be, "as a rule, truthful and
simple-minded.**"[17] The Karens of Burma have the following
traditional precept:--"Do not speak falsehood. What you do not
know, do not speak. Liars shall have their tongues cut out."[18]
Among the Bannavs of Cambodia "severe penalties, such as slavery
or exile, are imposed for lying."[19]
[Footnote 6: Fawcett, _Saoras_, p. 17.]
[Footnote 7: Forsyth, _Highlands of Central India_, p. 164. _Cf._
_ibid._ p. 361; Sleeman, _Rambles and Recollections of an Indian
Official_, ii. 109; Hislop, _Aboriginal Tribes of the Central
Provinces_, p. 1.]
[Footnote 8: Dalton, _Ethnology of Bengal_, p. 284. _Cf._
Forsyth, _op. cit._ p. 155.]
[Footnote 9: Macpherson, 'Religious Opinions and Observances of
the Khonds,' in _Jour. Roy. Asiatic Soc._ vii. 196.]
[Footnote 10: Macpherson, _Memorials of Service in India_, p. 94.]
[Footnote 11: Dalton, _op. cit._ p. 230.]
[Footnote 12: Elliot, 'Characteristics of the Population of
Central and Southern India,' in _Jour. Ethn. Soc. London_, N.S.
i. 106 _sq._]
[Footnote 13: _Ibid._ i. 105.]
[Footnote 14: Dalton, _op. cit._ p. 206. _Cf._ _ibid._ p. 204
_sq._; Bradley-Birt, _Chota Nagpore_, p. 103.]
[Footnote 15: Prain, 'Angami Nagas,' in _Revue coloniale
internationale_, v. 490.]
[Footnote 16: Lewin, _Wild Races of South-Eastern India_, p. 191.]
[Footnote 17: Browne, quoted by Dalton, _op. cit._ p. 110.]
[Footnote 18: Smeaton, _Loyal Karens of India_, p. 254.]
[Footnote 19: Comte, quoted by Mouhot, _Travels in Indo-China,
Cambodia, and Laos_, ii. 27. For the truthfulness of the
uncivilised races of India see also Sleeman, _op. cit._ ii. 110
_sqq._; Dalton, _op. cit._ p. 256 (Oraons); Crooke, _Tribes and
Castes of the North-Western Provinces_, ii. 478 (Hâbûra); Fraser,
_Tour through the Him[=a]l[=a] Mountains_, pp. 264 (inhabitants
of Kunawur), 335 (Bhoteas); Iyer, in the Madras Government
Museum's _Bulletin_, iv. 73 (Nay[=a]dis of Malabar); Walhouse,
'Account of a Leaf-wearing Tribe on the Western Coast of India,'
in _Jour. Anthr. Inst._ iv. 370 (Koragars).]
The Andaman Islanders call falsehood _y[=u]bda_, that is, sin or
wrong-doing.[20] The natives of Car Nicobar are not only very
honest,[21] but "the accusation of untruthfulness brings them up
in arms immediately."[22] The Dyaks of Borneo are praised for
their honesty and great regard for truth.[23] Mr. Bock states that
if they could not satisfactorily reply to his questions they
hesitated to answer at all, and that if he did not always get the
whole truth he always got at least nothing but the truth from
them.[24] Veracity is a characteristic of the Alfura of
Halmahera[25] and the Bataks of Sumatra, who only in cases of
urgent necessity have recourse to a lie.[26] The Javanese, says
Crawfurd, "are honourably distinguished from all the civilised
nations of Asia by a regard for truth."[27] "In their intercourse
with society," Raffles observes, "they display, in a high degree,
the virtues of honesty, plain dealing, and candour. Their
ingenuousness is such that, as the first Dutch authorities have
acknowledged, prisoners brought to the bar on criminal charges,
if really guilty, nine times out of ten confess, without disguise
or equivocation, the full extent and exact circumstances of their
offences, and communicate, when required, more information on the
matter at issue than all the rest of the evidence."[28] Among the
natives {75} of the Malay Archipelago there are some further
instances of trustworthy and truthful peoples;[29] whereas others
are described as distrustful and regardless of truth.[30] Thus
the natives of Timor-laut lie without compunction when they think
they can escape detection,[31] and of the Niase it is said that
"truth is their bitter enemy."[32]
[Footnote 20: Man, in _Jour. Anthr. Inst._ xii. 112.]
[Footnote 21: Distant, in _Jour. Anthr. Inst._ iii. 4.]
[Footnote 22: Kloss, _In the Andamans and Nicobars_, p. 227 _sq._]
[Footnote 23: Ling Roth, _Natives of Sarawak_, i. 66-68, 82.
Boyle, _Adventures among the Dyaks of Borneo_, p. 215. Selenka,
_Sonnige Welten_, p. 47.]
[Footnote 24: Bock, _Head-Hunters of Borneo_, p. 209.]
[Footnote 25: Kükenthal, _Forschungsreise in den Molukken_, p. 188.]
[Footnote 26: Junghuhn, _Battaländer auf Sumatra_, ii. 239.]
[Footnote 27: Crawfurd, _History of the Indian Archipelago_, i. 50.]
[Footnote 28: Raffles, _History of Java_, i. 248.]
[Footnote 29: Riedel, _De sluik- en kroesharige rassen tusschen
Selebes en Papua_, p. 96 (Serangese). St. John, _Life in the
Forests of the Far East_, ii. 322 (Malays of Sarawak).]
[Footnote 30: Marsden, _History of Sumatra_, p. 209 (natives of
the interior of Sumatra). Riedel, _op. cit._ p. 314 (natives of
the Luang-Sermata group). Steller, _De Sangi-Archipel_, p. 23.]
[Footnote 31: Forbes, _A Naturalist's Wanderings in the Eastern
Archipelago_, p. 320.]
[Footnote 32: Modigliani, _Viaggio a Nías_, p. 467.]
Veracity and probity were conspicuous virtues among various
uncivilised peoples belonging to the Russian Empire. Georgi,
whose work dates from the eighteenth century, says of the
Chuvashes that they "content themselves with a simple affirmation
or denial, and always keep their word";[33] of the Barabinzes,
that "lying, duplicity, and fraud, are unknown among them";[34]
of the Tunguses, that they "always appear to be what they really
are," and that "lying seems to them the absurdest thing in the
world, which prevents them being either suspicious or
necessitated to accompany their affirmations by oaths or solemn
protestations";[35] of the Kurilians, that they always speak the
truth "with the most scrupulous fidelity."[36] Castrén states
that the Zyrians, like the Finnish tribes generally, are
trustworthy and honest,[37] and that the Ostyaks have no other
oaths but those of purgation. Among them "witnesses never take
the oath, but their words are unconditionally believed in, and
everybody, with the exception of lunatics, is allowed to give
evidence. Children may witness against their parents, brothers
against brothers, a husband against his wife, and a wife against
her husband."[38]
[Footnote 33: Georgi, _Russia_, i. 110.]
[Footnote 34: _Ibid._ ii. 229.]
[Footnote 35: _Ibid._ iii. 78. _Cf._ _ibid._ iii. 109.]
[Footnote 36: _Ibid._ iii. 192. _Cf._ Krasheninnikoff, _History
of Kamschatka_, p. 236.]
[Footnote 37: Castrén, _Nordiska resor och forskningar_, i. 257.]
[Footnote 38: _Ibid._ i. 309 _sq._]
The Aleuts were highly praised by Father Veniaminof for their
truthfulness:--"These people detest lying, and never spread false
rumours. . . . They are very much offended if any one doubts
their word." They "despise hypocrisy in every respect," and "do
not flatter nor make empty promises, even in order to escape
reproof."[39] The regard in which truth is held by the Eskimo
seems to vary among different tribes. Armstrong blames the
Western Eskimo for being much {76} addicted to falsehood, and for
seldom telling the truth, if there be anything to gain by a
lie.[40] The Point Barrow Eskimo "are in the main truthful,
though a detected lie is hardly considered more than a good joke,
and considerable trickery is practised in trading."[41] Of the
Eskimo at Igloolik, an island near Melville Peninsula, we are
told that "their lies consist only of vilifying each other's
character, with false accusations of theft or ill behaviour. When
asking questions of an individual, it is but rarely that he will
either advance or persist in an untruth. . . . Lying among them
is almost exclusively confined to the ladies."[42] In his
description of the Eskimo on the western side of Davis Strait and
in the region of Frobisher Bay, Mr. Hall says that they despise
and shun one who will _shag-la-voo_, that is, "tell a lie," and
that they are rarely troubled by any of this class.[43] The
Greenlanders are generally truthful towards each other, at least
the men.[44] But if he can help it, a Greenlander will not tell a
truth which he thinks may be unpleasant to the hearer, as he is
anxious to stand on as good a footing as possible with his
fellow-men.[45]
[Footnote 39: Veniaminof, quoted by Dall, _Alaska_, pp. 396, 395.]
[Footnote 40: Armstrong, _Discovery of the North-West Passage_,
p. 196 _sq._]
[Footnote 41: Murdoch, 'Ethnological Results of the Point Barrow
Expedition,' in _Ann. Rep. Bur. Ethn._ ix. 41.]
[Footnote 42: Lyon, _Private Journal during the Voyage of
Discovery under Captain Parry_, p. 349.]
[Footnote 43: Hall, _Arctic Researches_, p. 567.]
[Footnote 44: Dalager, _Grønlandske Relationer_, p. 69. Cranz,
_History of Greenland_, i. 171, 175. Nansen, _Eskimo Life_, p. 158.]
[Footnote 45: Nansen, _Eskimo Life_, p. 101. _Idem_, _First
Crossing of Greenland_, ii. 334 _sq._]
The Thompson River Indians of British Columbia maintain that it
is bad to lie, that if you do so people will laugh at you and
call you a "liar."[46] Speaking of the Iroquois, Mr. Morgan says
that the love of truth was a marked trait of the Indian
character. "This inborn sentiment flourished in the period of
their highest prosperity, in all the freshness of its primeval
purity. On all occasions and at whatever peril, the Iroquois
spoke the truth without fear and without hesitation.
Dissimulation was not an Indian habit. . . . The Iroquois prided
themselves upon their sacred regard for the public faith, and
punished the want of it with severity when an occasion presented
itself."[47] Loskiel likewise states that they considered lying
and cheating heinous and scandalous offences.[48] Among the
Chippewas there were a few persons addicted to lying, but these
{77} were held in disrepute.[49] The Shoshones, a tribe of the
Snake Indians, were frank and communicative in their intercourse
with strangers, and perfectly fair in their dealings.[50] The
Seminole Indians of Florida are commended for their
truthfulness.[51] With special reference to the Navahos, Mr.
Matthews observes, "As the result of over thirty years'
experience among Indians, I must say that I have not found them
less truthful than the average of our own race."[52] Among the
Dacotahs lying "is considered very bad"; yet in this respect
"every one sees the mote in his brother's eye, but does not
discover the beam that is in his own,"[53] want of truthfulness
and habitual dishonesty in little things being prevalent traits
in their character.[54] So, also, the Thlinkets admit that
falsehood is criminal, although they have recourse to it without
hesitation whenever it suits their purpose.[55] Of the
Chippewyans, again, it is said that they carry the habit of lying
to such an extent, even among themselves, that they can scarcely
be said to esteem truth a virtue.[56] The Crees are "not very
strict in their adherence to truth, being great boasters."[57]
Heriot[58] and Adair[59] speak of the treacherous or deceitful
disposition of the North American Indians; but the latter adds
that, though "privately dishonest," they are "very faithful
indeed to their own tribe."
[Footnote 46: Teit, 'Thompson Indians of British Columbia,' in
_Memoirs of the American Museum of Natural History_,
Anthropology, i. 366.]
[Footnote 47: Morgan, _League of the Iroquois_, pp. 335, 338.]
[Footnote 48: Loskiel, _History of the Mission of the United
Brethren among the Indians in North America_, i. 16.]
[Footnote 49: Keating, _Expedition to the Source of St. Peter's
River_, ii. 168.]
[Footnote 50: Lewis and Clarke, _Travels to the Source of the
Missouri River_, p. 306.]
[Footnote 51: Maccauley, 'Seminole Indians of Florida,' in _Ann.
Rep. Bur. Ethn._ v. 491.]
[Footnote 52: Matthews, 'Study of Ethics among the Lower Races,'
in _Jour. of American Folk-Lore_, xii. 5.]
[Footnote 53: Schoolcraft, _Indian Tribes of the United States_,
ii. 196.]
[Footnote 54: Eastman, _Dacotah_, p. xvii.]
[Footnote 55: Douglas, quoted by Petroff, _Report on Alaska_,
p. 177.]
[Footnote 56: Richardson, _Arctic Searching Expedition_, ii. 18.
_Cf._ _ibid._ ii. 19.]
[Footnote 57: Richardson, in Franklin, _Journey to the Shores of
the Polar Sea_, p. 63.]
[Footnote 58: Heriot, _Travels through the Canadas_, p. 319.]
[Footnote 59: Adair, _History of the American Indians_, p. 4.]
Of the regard in which truth is held by the Indians of South
America the authorities I have consulted have little to say. The
Coroados are not deceitful.[60] The Tehuelches of Patagonia
nearly always lie in minor affairs, and will invent stories for
sheer amusement. "In anything of importance, however, such as
guaranteeing the safety of a person, they were very truthful, as
long as faith was kept with them. After a time," Lieutenant
Musters adds, "when they ascertained that I invariably avoided
deviating in any way from the truth, they left off lying to me
even in minor matters. This will serve to show that they are not
of the treacherous nature assigned to {78} them by some ignorant
writers."[61] Among the Fuegians, according to Mr. Bridge, no one
can trust another, lying tales of slander are very common, great
exaggeration is used, and it is not even considered wrong to tell
a lie.[62] Snow, however, speaks of "the honesty they undoubtedly
evince in many of their transactions";[63] and Darwin states that
the Fuegian boy on board the Beagle "showed, by going into the
most violent passion, that he quite understood the reproach of
being called a liar, which in truth he was."[64]
[Footnote 60: von Spix and von Martius, _Travels in Brazil_,
ii. 242.]
[Footnote 61: Musters, _At Home with the Patagonians_, p. 195 _sq._]
[Footnote 62: Bridges, in _A Voice for South America_, xiii. 202
_sq._ _Cf._ Hyades and Deniker, _Mission scientifique du Cap
Horn_, vii. 242; King and Fitzroy, _Voyages of the "Adventure"
and "Beagle,"_ ii. 188.]
[Footnote 63: Snow, _Two Years Cruise off Tierra del Fuego_, i. 347.]
[Footnote 64: Darwin, _Journal of Researches_, p. 227.]
Of the Australian aborigines we are told that some tribes and
families display on nearly all occasions honesty and
truthfulness, whereas others "seem almost destitute of the better
qualities."[65] According to Mr. Mathew, they are not wantonly
untruthful, although one can rely on them being faithful to a
trust only on condition that they are exempt from strong
temptation.[66] Mr. Curr admits that under some circumstances
they are treacherous, and that it costs them little pain to lie;
but from his own observations he has no doubt that the black
feels, in the commencement of his career at least, that lying is
wrong.[67] Mr. Howitt has found the South Australian Kurnai "to
compare not unfavourably with our own people in their narration
of occurrences, or as witnesses in courts of justice as to facts.
Among them a person known to disregard truth is branded as a liar
(_jet-bolan_)."[68] Among the aborigines of New South Wales
people who cause strife by lying are punished, and "liars are
much disliked"; Dr. Fraser was assured by a person who had had
much intercourse with them for thirty years that he never knew
them to tell a lie.[69] Among the tribes of Western Victoria
described by Mr. Dawson liars are detested; should any man,
through lying, get others into trouble, he is punished with the
boomerang, whilst women and young people, for the same fault, are
beaten with a stick.[70] In his description of his expeditions
into Central Australia Eyre writes, "In their intercourse with
each other I {79} have generally found the natives to speak the
truth and act with honesty, and they will usually do the same
with Europeans if on friendly terms with them."[71] With regard
to West Australian tribes Mr. Chauncy states that they are
certainly not remarkable for their treachery, and that he has
very seldom known any of them accused of it. He adds that they
are "habitually honest among themselves, if not truthful," and
that, during his many years' acquaintance with them, he does not
remember ever hearing a native utter a falsehood with a definite
idea of gaining anything by it. "If questioned on any subject, he
would form his reply rather with the view of pleasing the
enquirer than of its being true; but this was attributable to his
politeness."[72] According to a late Advocate-General of West
Australia, "when a native is accused of any crime, he often
acknowledges his share in the transaction with perfect
candour."[73] Very different from these accounts is Mr. Gason's
statement concerning the Dieyerie in South Australia. "A more
treacherous race," he says, "I do not believe exists. They imbibe
treachery in infancy, and practise it until death, and have no
sense of wrong in it. . . . They seem to take a delight in lying,
especially if they think it will please you. Should you ask them
any question, be prepared for a falsehood, as a matter of course.
They not only lie to the white man, but to each other, and do not
appear to see any wrong in it."[74] The natives of Botany Bay and
Port Jackson in New South Wales are by older writers described as
no strangers to falsehood.[75] And speaking of a tribe in North
Queensland, Mr. Lumholtz observed that "an Australian native can
betray anybody," and that "there is not one among them who will
not lie if it is to his advantage."[76]
[Footnote 65: Brough Smyth, _Aborigines of Victoria_, i. 25.]
[Footnote 66: Mathew, 'Australian Aborigines,' in _Jour. and
Proceed. Roy. Soc. N.S. Wales_, xxiii. 387.]
[Footnote 67: Curr, _Australian Race_, i. 43, 100.]
[Footnote 68: Fison and Howitt, _Kamilaroi and Kurnai_, p. 256.]
[Footnote 69: Fraser, _Aborigines of New South Wales_, pp. 41, 90.]
[Footnote 70: Dawson, _Australian Aborigines_, p. 76.]
[Footnote 71: Eyre, _Expeditions of Discovery into Central
Australia_, ii. 385.]
[Footnote 72: Chauncy, quoted by Brough Smyth, _op. cit._ ii.
275, 281. _Cf._ Oldfield, 'Aborigines of Australia,' in _Trans.
Ethn. Soc._ N.S. iii. 255.]
[Footnote 73: Moore, quoted by Brough Smyth, _op. cit._ ii. 278.]
[Footnote 74: Gason, 'Dieyerie Tribe of Australian Aborigines,'
in Woods, _Native Tribes of South Australia_, p. 257 _sq._]
[Footnote 75: Collins, _English Colony in New South Wales_, i.
600. Barrington, _History of New South Wales_, p. 22.]
[Footnote 76: Lumholtz, _Among Cannibals_, p. 100.]
According to Mr. Hale, the Polynesians are not naturally
treacherous, by no means from a horror of deception, but
apparently from a mere inaptitude at dissembling; and it is said
that the word of a Micronesian may generally be relied upon.[77]
To the Tonga Islanders a false accusation appeared more horrible
than deliberate murder does to us, and they also put this {80}
principle into practice.[78] We are told by Polack that among the
Maoris of New Zealand lying is universally practised by all
classes, and that an accomplished liar is accounted a man of
consummate ability.[79] But Dieffenbach found that, if treated
with honesty, they were always ready to reciprocate such
treatment;[80] and, according to another authority, they believed
in an evil spirit whom they said was "a liar and the father of
lies."[81] The broad statement made by von Jhering, that among
the South Sea Islanders lying is regarded as a harmless and
innocent play of the imagination,[82] is certainly not correct.
The treacherous disposition attributed to the Caroline
Islanders[83] and the natives of New Britain[84] does not imply
so much as that. The New Caledonians are, comparatively speaking,
"not naturally dishonest."[85] The Solomon Islanders are praised
as faithful and reliable workmen and servants,[86] though
cheating in trade is nowadays very common among some of them.[87]
Of the people of Erromanga, in the New Hebrides, the Rev. H. A.
Robertson states that "truth, in heathenism, was told only when
it suited best, but," he adds, "it is not that natives are always
reckless about the truth so much as that they seem utterly
incapable of stating anything definitely, or stating a thing just
as it really occurred."[88] In the opinion of some authorities,
the Fijians are very untruthful and regard adroit lying as an
accomplishment.[89] Their propensity to lie, says the missionary
Williams, "is so strong that they seem to have no wish to deny
its existence, or very little shame when convicted of a
falsehood." The universal prevalence of the habit of lying is so
thoroughly taken for granted, "that it is common to hear, after
the most ordinary statement, the rejoinder, 'That's a lie,' or
something to the same effect, at which the accused person does
not think of taking offence." But the same writer adds:--"Natives
have often told me lies, manifestly without any ill-will, and
when it would have been far more to their advantage to have
spoken the truth. The Fijians hail as agreeable companions those
who are {81} skilful in making tales, but, under some
circumstances, strongly condemn the practice of falsehood. . . .
On matters most lied about by civilised people, the native is the
readiest to speak the truth. Thus, when convicted of some
offence, he rarely attempts to deny it, but will generally
confess all to any one he esteems. . . . The following incident
shows that lying _per se_ is condemned and considered
disreputable. A white man, notorious for falsehood, had
displeased a powerful chief, and wrote asking me to intercede for
him. I did so; when the chief dismissed the case briefly, saying,
'Tell--that no one hates a foreigner; but tell him that every one
hates a liar!'"[90] Other writers even deny that the Fijians were
habitual liars;[91] and Erskine found that those chiefs with whom
he had to deal were so open to appeals to their good faith as to
convince him "that they had a due appreciation of the virtue of
truth."[92]
[Footnote 77: Hale, _U.S. Exploring Expedition, Vol. VI.
Ethnography and Philology_, pp. 16, 73.]
[Footnote 78: Mariner, _Natives of the Tonga Islands_, ii. 163
_sq._]
[Footnote 79: Polack, _Manners and Customs of the New
Zealanders_, ii. 102 _sq._ See also Colenso, _Maori Races of New
Zealand_, pp. 44, 46.]
[Footnote 80: Dieffenbach, _Travels in New Zealand_, ii. 109.]
[Footnote 81: Yate, _Account of New Zealand_, p. 145.]
[Footnote 82: von Jhering, _Der Zweck im Recht_, ii. 606.]
[Footnote 83: Angas, _Polynesia_, p. 386.]
[Footnote 84: Powell, _Wanderings in a Wild Country_, p. 262.]
[Footnote 85: Anderson, _Travel in Fiji and New Caledonia_, p. 233.]
[Footnote 86: Parkinson, _Zur Ethnographie der nordwestlichen
Salomo Inseln_, p. 4.]
[Footnote 87: Sommerville, 'Ethnogr. Notes in New Georgia,' in
_Jour. Anthr. Inst._ xxvi. 393.]
[Footnote 88: Robertson, _Erromanga_, p. 384 _sq._]
[Footnote 89: Wilkes, _U.S. Exploring Expedition_, iii. 76.]
[Footnote 90: Williams and Calvert, _Fiji_, p. 107 _sq._]
[Footnote 91: Erskine, _Cruise among the Islands of the Western
Pacific_, p. 264. Anderson, _Travel in Fiji and New Caledonia_,
p. 130.]
[Footnote 92: Erskine, _op. cit._ p. 264.]
Nowhere in the savage world is truth held in less estimation than
among many of the African races. The Negroes are described as
cunning and liars by nature.[93] They "tell a lie more readily
than they tell the truth," and falsehood "is not recognised
amongst them as a fault."[94] They lie not only for the sake of
gaining some advantage by it, or in order to please or amuse, but
their lies are often said to be absolutely without purpose.[95]
Of the natives of the Gold Coast the old traveller Bosman says,
"The Negroes are all, without exception, crafty, villainous and
fraudulent, and very seldom to be trusted, being sure to slip no
opportunity of cheating an European, nor indeed one another."[96]
Among all the Bakalai tribes "lying is thought an enviable
accomplishment."[97] The Bakongo, in their answers, "will
generally try and tell the questioner what they think will please
him most, quite ignoring the truthfulness we consider it
necessary to observe in our replies."[98] Miss Kingsley's
experience of West African natives is likewise that they "will
say 'Yes' to any mortal thing, if they think you want them
to."[99] The Wakamba are described as great liars.[100] {82}
Among the Waganda "truth is held in very low estimation, and it
is never considered wrong to tell lies; indeed, a successful liar
is considered a smart, clever fellow, and rather admired."[101]
Untruthfulness is said to be "a national characteristic" of the
tribes inhabiting the region of Lake Nyassa.[102] From his
experience of the Eastern Central Africans, the Rev. D. Macdonald
writes: "'Telling lies' is much practised and is seldom
considered a fault. . . . The negro often thinks that he is
flattered by being accused of falsehood. So, when natives wish to
pay a high compliment to a European who has told them an
interesting story, they look into his face and say, 'O father,
you are a great liar.'"[103] To the Wanika, says Mr. New, lying
is "almost as the very breath of their nostrils, and all classes,
young and old, male and female, indulge in it. A great deal of
their lying is without cause or object; it is lying for lying's
sake. You ask a man his name, his tribe, where he lives, or any
other simple question of like nature, and the answer he gives you
will, as a rule, be the very opposite to the truth; yet he has
nothing to evade or gain by so doing. Lying seems to be more
natural to him than speaking the truth. He lies when detection is
evident, and laughs at it as though he thought it a good joke. He
hears himself called a _mulongo_ (liar) a score of times a day,
but he notices it not, for there is no opprobrium in the term to
him. To hide a fault he lies with the most barefaced audacity and
blindest obstinacy. . . . When his object is gain, he will invent
falsehoods wholesale. . . . He boasts that _ulongo_ (lying) is
his _pesa_ (piece, ha'pence), and holds bare truth to be the most
unprofitable commodity in the world. But while he lies
causelessly, objectlessly, recklessly in self-defence or for
self-interest, he is not a malicious liar. He does not lie with
express intent to do others harm; this he would consider immoral,
and he has sufficient goodness of heart to avoid indulging
therein. . . . I have often been struck with the manner in which
he has controlled his tongue when the character and interest of
others have been at stake."[104] If a Bantu of South-Eastern
Africa "undertakes the charge of any form of property, he
accounts for it with as great fidelity as if he were the Keeper
of the Great Seal. But, on the other hand, there are many
circumstances in which falsehood is not reckoned even a disgrace,
and if a man could {83} extricate himself from difficulties by
lying and did not do so, he would be simply thought a fool."[105]
Andersson speaks of the "lying habits" of the Herero.[106] Of the
Bachapins, a Bechuana tribe, Burchell observes that among their
vices a universal disregard for truth and a want of honourable
adherence to their promise stand high above the rest, the
consequence of this habitual practice of lying being "the absence
of shame, even on being detected."[107] Among the Kafirs
"deception is a practised art from early childhood; even the
children will not answer a plain question."[108] It is considered
a smart thing to deceive so long as a person is not found out,
but it is awkward to be detected; hence a native father will
enjoy seeing his children deceive people cleverly.[109] "In
trading with them, you may make up your mind that all they tell
you is untrue, and act accordingly. . . . Your own natives, on
the other hand, if they like you, will lie for your benefit as
strongly as the opposite party against you; and both sides think
it all fair trade."[110] And in a Kafir lawsuit "defendant,
plaintiff, and witnesses are allowed to tell as many lies as they
like, in order to make the best of their case."[111] But we also
hear that Kafirs do not tell lies to their chiefs, and that there
are many among them who would never deceive a white man whom they
are fond of or respect.[112] Among the Bushmans veracity is said
to be too often, yet not always, disregarded, "and the neglect of
it considered a mere venial offence."[113] "The first version of
what a Bushman or any native has to say can never be relied on;
whatever you ask him about, he invariably says first, 'I don't
know,' and then promises to tell you all he does know. Ask him
for news, and he says, 'No; we have got no news,' and shortly
afterwards he will tell you news of perhaps great interest."[114]
In Madagascar there was no stigma attached to deceit or fraud;
they "were rather admired as proofs of superior cunning, as
things to be imitated, so far at least as they would not bring
the offender within the penalties of the native laws."[115] Ellis
says that "the best sign of genius in children is esteemed a
quickness to deceive, {84} overreach and cheat. The people
delight in fabulous tales, but in none so much or universally as
in those that relate instances of successful deceit or fraud. . . .
Their constant aim is, in business to swindle, in professed
friendship to extort, and in mere conversation to exaggerate and
fabricate."[116] These statements refer to the Hovas; but among
the Betsileo, inhabiting the same island, lying and cheating are
equally rife, and "neither appears to have been thought a sin, so
long as it remained undiscovered."[117] At the same time many of
the Madagascar proverbs are designed to put down lying, and to
show that truth is always best.[118]
[Footnote 93: Baker, _Albert N'yanza_, i. 289. Burton, _Mission
to Gelele_, ii. 199.]
[Footnote 94: Reade, _Savage Africa_, p. 580.]
[Footnote 95: Hübbe-Schleiden, _Ethiopien, Studien über
West-Afrika_, p. 186 _sq._]
[Footnote 96: Bosman, _New Description of the Coast of Guinea_,
p. 100.]
[Footnote 97: Du Chaillu, _Explorations and Adventures in
Equatorial Africa_, p. 390. _Cf._ _ibid._ p. 331.]
[Footnote 98: Ward, _Five Years with the Congo Cannibals_, p. 47.]
[Footnote 99: Kingsley, _Travels in West Africa_, p. 525.]
[Footnote 100: Krapf, _Travels in Eastern Africa_, p. 355.]
[Footnote 101: Wilson and Felkin, _Uganda_, i. 224. _Cf._ Felkin,
'Notes on the Waganda Tribe,' in _Proceed. Roy. Soc. Edinburgh_,
xiii. 722; Ashe, _Two Kings of Uganda_, p. 295.]
[Footnote 102: Macdonald, 'East Central African Customs,' in
_Jour. Anthr. Inst._ xxii. 119.]
[Footnote 103: Macdonald, _Africana_, i. 262 _sq._]
[Footnote 104: New, _Life, Wanderings, and Labours in Eastern
Africa_, p. 96 _sqq._]
[Footnote 105: Macdonald, _Light in Africa_, p. 211.]
[Footnote 106: Andersson, _Lake Ngami_, p. 217. _Cf._ _ibid._
p. 499 (Bayeye).]
[Footnote 107: Burchell, _Travels in the Interior of Southern
Africa_, ii. 553 _sq._]
[Footnote 108: Holden, _The Past and Future of the Kaffir Races_,
p. 179.]
[Footnote 109: Kidd, _The Essential Kafir_, p. 285.]
[Footnote 110: Leslie, _Among the Zulus and Amatongas_, p. 199.
_Cf._ _ibid._ p. 202.]
[Footnote 111: Maclean, _Compendium of Kafir Laws and Customs_,
p. 58.]
[Footnote 112: Kidd, _The Essential Kafir_, p. 286.]
[Footnote 113: Burchell, _op. cit._ ii. 54.]
[Footnote 114: Chapman, _Travels in the Interior of South
Africa_, i. 76 _sq._]
[Footnote 115: Sibree, _The Great African Island_, p. 338.]
[Footnote 116: Ellis, _History of Madagascar_, i. 143 _sq._]
[Footnote 117: Sibree, _op. cit._ p. 125. Shaw, 'Betsileo,' in
_Antananarivo Annual_, iii. 79.]
[Footnote 118: Clemes, 'Malagasy Proverbs,' _ibid._ iv. 29.]
But in Africa, also, there are many peoples who have been
described as regardful of truth and hostile to falsehood. Early
travellers speak very highly of the sincerity of the Hottentots.
Father Tachart says that they have more honesty than is almost
anywhere found among Christians;[119] and Kolben agrees with him,
asserting that the word of a Hottentot is sacred, and that there
is hardly anything upon earth which he looks upon as a fouler
crime than breach of engagement.[120] According to Barrow, the
Hottentots are perfectly honest and faithful, and, "if accused of
crimes of which they have been guilty, they generally divulge the
truth."[121] Of the Manansas Dr. Holub states that, so far as his
experience goes, they are beyond the average for honesty and
fidelity, and are consequently laughed at by the more powerful
tribes as "the simpletons of the North."[122] The Bahima in the
Uganda Protectorate are usually very honest and truthful, and
most of the Nandi think it very wicked to tell a lie.[123] Among
the For tribe of Central Africa "lying is held to be a great
crime; even the youngest children are severely beaten for it, and
any one over fifteen or sixteen who is an habitual liar suffers
the loss of one lip as a penalty."[124] Speaking of the natives
of Sierra Leone, Winterbottom remarks that, in proportion as we
advance into the interior of the country, the people are found to
be more devoid of art and more free from suspicion.[125] "Those
who have dealings with the Fán universally {85} prefer them in
point of honesty and manliness to the Mpongwe and Coast races,"
and it is an insult to call one of them a liar or coward.[126]
Monrad, who wrote in the beginning of the nineteenth century,
asserts that among the Negroes of Accra lying is by no means
common and that they are as a rule honest towards their own
people.[127] According to an early authority, the people of Great
Benin were very straightforward and did not cheat each
other.[128] Mr. and Mrs. Hinde write that the Masai are as a race
truthful, and that a grown-up person among them will not lie; "he
may refuse to answer a question, but, once given, his word can be
depended on."[129] Dr. Baumann, on the other hand, says that they
often lie, but that they regard lying as a great fault.[130] The
Guanches of the Canary Islands are stated to have been "slaves to
their word."[131] Of the Berbers of Morocco Leo Africanus
writes:--"Most honest people they are, and destitute of all fraud
and guile. . . . They keep their couenant most faithfully;
insomuch that they had rather die than breake promise."[132] M.
Dyveyrier found the same virtue among the Touareg, another Berber
people:--"La fidélité aux promesses, aux traités, est poussée si
loin par les Touareg, qu il est difficile d'obtenir d'eux des
engagements. . . . Il est de maxime chez les Touâreg, en matière
de contrat, de ne s'engager que pour la moitié de ce qu'on peut
tenir, afin de ne pas s'exposer au reproche d'infidélité. . . .
Le mensonge, le vol domestique et l'abus de confiance sont
inconnus des Touâreg."[133] As regards the truthfulness of the
African Arabs opinions vary. Parkyns asks, "Who is more
trustworthy than the desert Arab?"[134] According to Rohlfs and
Chavanne, on the other hand, the Arabs of the Sahara are much
addicted to lying;[135] and of the Arabs of Egypt Mr. St. John
observes:--"There is no general appreciation of a man's word. . . .
'Liar' is a playful appellative scarcely reproachful; and 'I
have told a lie' a confession that may be made without a
blush."[136] Herodotus' statement that "the Arabs observe pledges
as religiously as any people,"[137] is true of the Bedouins of
Arabia in the {86} present day. "No vice or crime is more
deservedly stigmatised as infamous among Bedouins than treachery.
An individual in the great Arabian Desert will be forgiven if he
should kill a stranger on the road, but eternal disgrace would be
attached to his name, if it were known that he had robbed his
companion, or his protected guest, even of a handkerchief."[138]
Wallin affirms that you may put perfect trust in the promise of a
Bedouin, as soon as you have eaten salt and bread with him.[139]
But whilst faithfulness to a tacit or express promise is thus
regarded by him as a sacred duty, lying and cheating are as
prevalent in the desert as in the market-towns of Syria.[140]
Speaking of the Bedouins of the Euphrates, Mr. Blunt
observes:--"Truth, in ordinary matters, is not regarded as a
virtue by the Bedouins, nor is lying held shameful. Every man,
they say, has a right to conceal his own thought. In matters of
importance, the simple affirmation is confirmed by an oath, and
then the fact stated may be relied on. There is only one
exception to the general rule of lying among them. The Bedouin,
if questioned on the breed of his mare, will not give a false
answer. He may refuse to say, or he may answer that he does not
know; but he will not name another breed than that to which she
really belongs. . . . The rule, however, does not hold good on
any other point of horse dealing. The age, the qualities, and the
ownership of the horse may be all falsely stated."[141]
[Footnote 119: Tachart, quoted by Kolben, _Present State of the
Cape of Good Hope_, i. 167.]
[Footnote 120: _Ibid._ i. 59.]
[Footnote 121: Barrow, _Travels into the Interior of Southern
Africa_, i. 151 _sq._]
[Footnote 122: Holub, _Seven Years in South Africa_, ii. 209.]
[Footnote 123: Johnston, _Uganda Protectorate_, ii. 630, 879.]
[Footnote 124: Felkin, in _Proceed. Roy. Soc. Edinburgh_,
xiii. 232.]
[Footnote 125: Winterbottom, _Account of the Native Africans in
the Neighbourhood of Sierra Leone_, i. 206 _sq._]
[Footnote 126: Burton, _Two Trips to Gorilla Land_, i. 225 _sq._]
[Footnote 127: Monrad, _Guinea-Kysten og dens Indbyggere_, p. 6.]
[Footnote 128: Quoted by Ling Roth, _Great Benin_, p. 45.]
[Footnote 129: Hinde, _The Last of the Masai_, p. 34.]
[Footnote 130: Baumann, _Durch Massailand_, p. 165.]
[Footnote 131: Bory de St. Vincent, _Essais sur les Isles
Fortunées_, p. 70.]
[Footnote 132: Leo Africanus, _History and Description of
Africa_, i. 183.]
[Footnote 133: Dyveyrier, _Exploration du Sahara_, p. 384 _sq._]
[Footnote 134: Parkyns, _Life in Abyssinia_, ii. 182.]
[Footnote 135: Chavanne, _Die Sahara_, p. 392.]
[Footnote 136: St. John, _Adventures in the Lybian Desert_, p. 31.]
[Footnote 137: Herodotus, iii. 8.]
[Footnote 138: Burckhardt, _Notes on the Bedouins and Wahábys_,
p. 190 _sq._]
[Footnote 139: Wallin, _Reseanteckningar från Orienten_, iii. 116.]
[Footnote 140: Burckhardt, _op. cit._ p. 104 _sq._ _Cf._ Wallin,
_op. cit._ iv. 89 _sq._; Doughty, _Arabia Deserta_, i. 241.]
[Footnote 141: Blunt, _Bedouin Tribes of the Euphrates_, ii. 203
_sq._ _Cf._ Niebuhr, _Travels through Arabia_, ii. 302:--"There
is no instance of false testimony given in respect to the descent
of a horse. Every Arabian is persuaded that himself and his whole
family would be ruined, if he should prevaricate in giving his
oath in an affair of such consequence."]
Various statements of travellers thus directly contradict the
common opinion that want of truthfulness is mostly a
characteristic of uncivilised races.[142] And we have much reason
to assume that a foreigner visiting a savage tribe is apt rather
to underrate than to overestimate its veracity. Mr. Savage Landor
gives us a curious insight into an explorer's method of testing
it. "If you were to say to an Ainu, 'You are old, are you not?'
he would answer {87}'Yes'; but if you asked the same man, 'You
are not old, are you?' he would equally answer 'Yes.'" And then
comes the conclusion:--"Knowingly speaking the truth is not one
of their characteristics; indeed, they do not know the difference
between falsehood and truth."[143] It is hardly surprising to
hear from other authorities that the Ainu are remarkably honest,
and regard veracity as one of the most imperative duties.[144]
Speaking of the Uaupés and other Brazilian tribes, Mr. Wallace
observes:--"In my communications and inquiries among the Indians
on various matters, I have always found the greatest caution
necessary, to prevent one's arriving at wrong conclusions. They
are always apt to affirm that which they see you wish to believe,
and, when they do not at all comprehend your question, will
unhesitatingly answer, 'Yes.'"[145] Savages who are inclined to
give inaccurate answers to questions made by strangers, may
nevertheless be truthful towards each other. As the regard for
life and property, so the regard for truth varies according as
the person concerned is a foreigner or a tribesman. "Perfidy and
faithlessness," says Crawfurd, "are vices of the Indian
islanders, and those vices of which they have been most
frequently accused by strangers. This sentence against them must,
however, be understood with some allowances. In their domestic
and social intercourse, they are far from being a deceitful
people, but in reality possess more integrity than it is
reasonable to look for with so much misgovernment and barbarity.
It is in their intercourse with strangers and with enemies that,
like other barbarians, the treachery of their character is
displayed."[146] The natives of the interior of Sumatra are
"dishonest in their dealings with strangers, which they esteem no
moral defect."[147] Dalager states that the same Greenlanders
who, among themselves, in the sale of an object {88} which, the
buyer had not seen, would depreciate it rather than overpraise
it--even though the seller was anxious to get rid of it--told
frightful lies in their transactions with Danish traders.[148]
The Touareg, whilst scrupulously faithful to a promise given to
one of their own people, do not regard as binding a promise given
to a Christian;[149] and their Arab neighbours say that their
word, "like water fallen on the sand, is never to be found
again."[150] The Masai, according to Herr Merker, hold any kind
of deceit to be allowable in their relations with persons of
another race.[151] The Hovas of Madagascar even considered it a
duty for anyone speaking with foreigners on political matters to
state the exact opposite to the truth, and punished him who did
otherwise.[152]
[Footnote 142: Burton, _City of the Saints_, p. 130. Vierkandt,
_Naturvölker und Kulturvölker_, p. 273. von Jhering, _Der Zweck
im Recht_, ii. 606.]
[Footnote 143: Landor, _Alone with the Hairy Ainu_, p. 283.]
[Footnote 144: Holland, in _Jour. Anthr. Inst._ iii. 237. von
Siebold, _Aino auf der Insel Yesso_, p. 25.]
[Footnote 145: Wallace, _Travels on the Amazon_, p. 494 _sq._]
[Footnote 146: Crawfurd, _op. cit._ i. 71 _sq._ _Cf._ Christian,
_Caroline Islands_, p. 71 _sq._]
[Footnote 147: Marsden, _op. cit._ p. 208.]
[Footnote 148: Dalager, _op. cit._ p. 60 _sq._]
[Footnote 149: von Bary, quoted by Chavanne, _Die Sahara_, p. 186.]
[Footnote 150: Dubois, _Timbuctoo_, p. 231.]
[Footnote 151: Merker, _Die Masai_, p. 115.]
[Footnote 152: Ellis, _History of Madagascar_, i. 144. Professor
Stanley Hall observes ('Children's Lies,' in _American Journal of
Psychology_, iii. 62) that "truth for our friends and lies for
our enemies is a practical, though not distinctly conscious rule
widely current with children."]
In point of truthfulness savages are in many cases superior to
nations more advanced in culture. "A Chinese," says Mr. Wells
Williams, "requires but little motive to falsify, and he is
constantly sharpening his wits to cozen his customer--wheedle him
by promises and cheat him in goods or work."[153] His ordinary
speech is said to be so full of insincerity that it is very
difficult to learn the truth in almost any case.[154] He feels no
shame at being detected in a lie, nor does he fear any punishment
from his gods for it;[155] if you call him a liar, "you arouse in
him no sense of outrage, no sentiment of degradation."[156] Yet
the moral teachings of the Chinese inculcate truthfulness as a
stringent duty. One of their injunctions is, "Let children always
be taught to speak the simple truth."[157] Many sayings may be
quoted from Confucius in which sincerity is celebrated as highly
and demanded as urgently as it ever was by any {89} Christian
moralist. Faithfulness and sincerity, he said, should be held as
first principles. Sincerity is the way of Heaven, the end and
beginning of things, without which there would be nothing. It is
as necessary to truly virtuous conduct as a boat is to a man
wishing to cross a river, or as oars are to a boat. The superior
man ought to feel shame when his conduct is not in accord with
his words.[158] But there are instances in which sincerity has to
yield to family duties: a father should conceal the misconduct of
his son, and a son that of his father.[159] Moreover, the great
moralists themselves did not always act up to their lofty
principles. Confucius and Mencius sometimes did not hesitate to
tell a lie for the sake of convenience.[160] The former could
excuse himself from seeing an unwelcome visitor on the ground
that he was sick, when there was nothing the matter with
him;[161] and he deliberately broke an oath which he had sworn,
because it had been forced from him.[162] In Japan, Burma, and
Siam, truth is more respected than in China. "In love of truth,"
says Professor Rein, "the Japanese, so far as my experience goes,
are not inferior to us Europeans." [163] The Burmese, though
partial to much exaggeration, are generally truthful.[164] And
"the mendacity so characteristic of Orientals is not a national
defect among the Siamese. Lying, no doubt, is often resorted to
as a protection against injustice and oppression, but the chances
are greatly in favour of truth when evidence is sought."[165]
[Footnote 153: Wells Williams, _The Middle Kingdom_, i. 834.]
[Footnote 154: Smith, _Chinese Characteristics_, p. 271.]
[Footnote 155: Cooke, _China_, p. 414. Edkins, _Religion in
China_, p. 122. Bowring, _Siam_, i. 106. Wells Williams, _op.
cit._ i. 834.]
[Footnote 156: Smith, _Chinese Characteristics_, p. 271.]
[Footnote 157: Wells Williams, _op. cit._ i. 522.]
[Footnote 158: _Lun Yü_, i. 8. 2; vii. 24; ix. 24; xii. 10. 1;
xv. 5. 2. _Chung Yung_, xx. 18. Douglas, _Confucianism and
Taouism_, pp. 103, 114, 146. Legge, _Chinese Classics_, i. 100.]
[Footnote 159: _Lun Yü_, xiii. 18. 2.]
[Footnote 160: Legge, _Chinese Classics_, i. 100. Smith, _Chinese
Characteristics_, p. 267.]
[Footnote 161: _Lun Yü_, vi. 13.]
[Footnote 162: _Lun Yü_, xvii. 20.]
[Footnote 163: Rein, _Japan_, p. 393.]
[Footnote 164: MacMahon, _Far Cathay and Farther India_, p. 62.
Forbes, _British Burma_, p. 45. Fytche, _Burma Past and Present_,
ii. 67.]
[Footnote 165: Bowring, _Siam_, i. 105.]
Lying has been called the national vice of the Hindus.[166] "It
is not too much to assert that the mass of Bengalis have no
notion of truth and falsehood."[167] A gentleman {90} who has
been brought into the closest intimacy with natives of all
classes, declares "that when a question is asked, the full
bearing of which on themselves or those connected with them they
cannot see, you may rely upon it that the first answer you
receive is false; but that, when they see that the truth cannot
injure themselves or any one they care for, they will speak the
truth."[168] The testimony of a Hindu is not generally regarded
as evidence.[169] Forgery is frequently resorted to, cheating is
rife. "In almost all business transactions of the smallest kind a
written agreement must be made on both sides, and this must be
stamped and registered, because it is believed that a man's word
is not binding."[170] Nor is a lie held disreputable, especially
if not found out.[171] But in India, as elsewhere, the question
whether truth or falsehood is to be spoken depends on the
relationship between the speaker and the party addressed. In
their relations with each other, says Sir W. H. Sleeman, members
of a village community spoke as much truth as those of any other
community in the world, but in their relations with the
government they told as many lies; "if a man had told a lie to
_cheat_ his neighbour, he would have become an object of hatred
and contempt--if he had told a lie to _save_ his neighbour's
fields from an increase of rent or tax, he would have become an
object of esteem and respect."[172] Of the Sûdra inhabitants of
Central India Sir John Malcolm likewise observes that "they may
be said, in their intercourse with strangers and with officers of
government, to evade the truth, and often to assert positive
falsehoods"; whereas, "in their intercourse with each other,
falsehood is not common, and many (particularly some of the
cultivators) are distinguished by their adherence to truth."[173]
The ancient Hindus were praised for their veracity and good
faith; {91} in his History of India, written in the second
century of the Christian era, Arrian states that no Indian was
ever known to tell an untruth.[174] In the sacred books of India
truthfulness is highly celebrated. "If veracity and a thousand
horse-sacrifices are weighed against each other, it is found that
truth ranks even higher than a thousand horse-sacrifices."[175]
"Verily the gods are the truth, and man is the untruth."[176]
"There is one law which the gods do keep, namely, the truth. It
is through this that their conquest, their glory is unassailable:
and so, forsooth, is his conquest, his glory unassailable
whosoever, knowing this, speaks the truth."[177] Attendance on,
or the worship of, the sacred fire means speaking the
truth:--"Whosoever speaks the truth, acts as if he sprinkled that
lighted fire with ghee; for even so does he enkindle it: and ever
the more increases his own vital energy, and day by day does he
become better. And whosoever speaks the untruth, acts as if he
sprinkled that lighted fire with water; for even so does he
enfeeble it: and ever the less becomes his own vital energy, and
day by day does he become more wicked. Let him, therefore, speak
nothing but the truth."[178] Fearful denunciations are
particularly pronounced against those who deliver false testimony
in a court of justice.[179] By giving false evidence concerning
small cattle, a witness commits the sin of killing ten men; by
false evidence concerning cows, horses, and men, he commits the
sin of killing a hundred, a thousand, and ten thousand men
respectively; but by false evidence concerning land, he commits
the sin of killing the whole human race.[180] The sin of
falsehood thus admits of different degrees according to the
magnitude of the injury inflicted by it. Indeed, "in some cases a
man who, though knowing the facts to be different, gives such
false evidence from a pious motive, does not lose heaven; such
evidence they call the speech of the gods."[181] {92} Moreover,
"whenever the death of a Sûdra, of a Vaisya, of a Kshatriya, or
of a Brâhmana would be caused by a declaration of the truth, a
falsehood may be spoken; for such falsehood is preferable to the
truth."[182] According to Buddhist conceptions of lying, "the
magnitude of the crime increases in proportion to the value of
the article, or the importance of the matter, about which the lie
is told."[183] And it is a lesser wrong to lie in self-defence
than to lie with a view to procuring an advantage by injuring
one's neighbour. Thus, to deny the possession of any article, in
order to retain it, is not a lie of a heinous description,
whereas to bear false witness in order that the proper owner may
be deprived of that which he possesses, is a lie to which a
greater degree of culpability is attached.[184] The Buddhist
precept of truthfulness is more restricted than that laid down by
Brahmanism:--"It is said by the Brahmans that it is not a crime
to tell a lie on behalf of the guru, or on account of cattle, or
to save the person's own life, or to gain the victory in any
contest; but this is contrary to the precept."[185] One of the
conditions that make a Buddha is, never, under the influence of
desire and other passions, to utter a conscious lie, for the sake
of wealth or any other advantage.[186] From the time that Gautama
became a Bodhisattva, or claimant for the Buddhaship, through all
his births until the attainment of the Buddhaship, he never told
a lie; and "it were easier for the sakwala [or system of worlds]
to be blown away than for a supreme Buddha to utter an
untruth."[187] His followers are not equally scrupulous. The
Buddhists of Ceylon, we are told, lie without compunction, and
are not ashamed to be detected in a lie.[188] And religious
Mongols "do not hesitate to tell lies even when saying their
prayers."[189]
[Footnote 166: Caldwell, _Tinnevelly Shanars_, p. 38. _Cf._
Kearns, _Tribes of South India_, pp. 64 (Reddies and Hindus
generally), 68 (Reddies and Naickers); Burton, _Sindh_, pp. 197,
284; _Idem_, _Sind Revisited_, i. 314.]
[Footnote 167: Trevelyan, quoted by Wilkins, _Modern Hinduism_,
p. 401.]
[Footnote 168: Wilkins, _Modern Hinduism_, p. 399 _sq._]
[Footnote 169: Percival, _Land of the Veda_, p. 288.]
[Footnote 170: Wilkins, _op. cit._ p. 407 _sq._]
[Footnote 171: _Ibid._ p. 400. Caldwell, _op. cit._ p. 40.]
[Footnote 172: Sleeman, _op. cit._ ii. 123. _Cf._ _ibid._ ii.
118, 129 _sq._; Crooke, _Tribes and Castes of the North-Western
Provinces and Oudh_, ii. 478 (Hâbûra).]
[Footnote 173: Malcolm, _Memoir of Central India_, ii. 171. _Cf._
Hislop, _op. cit._ p. 1.]
[Footnote 174: Arrian, _Historia Indica_, xii. 5.]
[Footnote 175: _Institutes of Vishnu_, viii. 36.]
[Footnote 176: _Satapatha-Brâhmana_, i. 1. 1. 4; iii. 3. 2. 2.]
[Footnote 177: _Ibid._ iii. 4. 2. 8. _Cf._ _ibid._ i. 1. 1. 5.]
[Footnote 178: _Ibid._ ii. 2. 2. 19.]
[Footnote 179: _Laws of Manu_, viii. 82.]
[Footnote 180: _Gautama_, xiii. 14 _sqq._]
[Footnote 181: _Laws of Manu_, viii. 103.]
[Footnote 182: _Laws of Manu_, viii. 104.]
[Footnote 183: Hardy, _Manual of Budhism_, p. 486.]
[Footnote 184: _Ibid._ p. 485.]
[Footnote 185: _Ibid._ p. 486.]
[Footnote 186: _Jâtaka Tales_, p. 23.]
[Footnote 187: Hardy, _op. cit._ p. 486.]
[Footnote 188: Knox, quoted by Schmidt, _Ceylon_, p. 239.]
[Footnote 189: Gilmour, _Among the Mongols_, p. 259.]
{93} According to Zoroastrianism, truthfulness is a most sacred
duty. Lying is a creation of the evil spirits, and the most
efficacious weapon against it is the holy religion revealed to
man by Zarathustra.[190] In one of the Pahlavi texts it is said
that when the Spirit of Wisdom was asked, "Through how many ways
and motives and good works do people arrive most at heaven?" he
answered thus: "The first good work is liberality, the second
truth."[191] Contracts are inviolable, both those which are
pledged with hand or pawn, and those by a mere word.[192] It is a
duty to keep faith even with an unbeliever:--"Break not the
contract, O Spitama, neither the one that thou hadst entered into
with one of the unfaithful, nor the one that thou hadst entered
into with one of the faithful who is one of thy own faith."[193]
Greek historians and cuneiform inscriptions also bear witness to
the great detestation in which falsehood was held by the ancient
Persians. Herodotus writes:--"Their sons are carefully instructed
from their fifth to their twentieth year in three things
alone--to ride, to draw the bow, and to speak the truth. . . .
The most disgraceful thing in the world, they think, is to tell a
lie; the next worse, to owe a debt: because, among other reasons,
the debtor is obliged to tell lies."[194] In the inscriptions of
Darius lying is taken as representative of all evil. He is
favoured by Ormuzd "because he was not a heretic, nor a liar, nor
a tyrant." His great fear is lest it may be thought that any part
of the record which he has set up has been falsely related; and
he even abstains from narrating certain events of his reign "lest
to him who may hereafter peruse the tablet, the many deeds that
have been done by him may seem to be falsely recorded."[195]
Professor Spiegel tries to prove that {94} falsehood, not
truthfulness, was a national characteristic of the ancient
Eranians, to which their noblest men offered fruitless
resistance;[196] but the facts he quotes in support of his
opinion refer to their dealings with foreign nations, and have
consequently little bearing on the subject. The modern Persians
are notorious liars, who do not even claim to be believed, and
smile when detected in a lie.[197] The nomad alone is faithful to
his word; the expression, "I am a nomad," means, "You may trust
me."[198]
[Footnote 190: _Bundahis_, i. 24; xxviii. 14, 16. _Dînâ-î
Maînôg-î Khirad_, xix. 4, 6; xxx. 5; xxxvi. 29. Darmesteter, in
_Sacred Books of the East_, iv. p. lxii. Spiegel, _Erânische
Alterthumskunde_, iii. 684 _sq._ Geiger, _Civilization of the
Eastern Ir[=a]nians_, i. 164 _sq._ Meyer, _Geschichte des
Alterthums_, i. 534, 536.]
[Footnote 191: _Dînâ-î Maînôg-î Khirad_, xxxvii. 2 _sqq._]
[Footnote 192: _Vendîdâd_, iv. 5 _sqq._]
[Footnote 193: _Yasts_, x. 2.]
[Footnote 194: Herodotus, i. 136, 138. _Cf._ Stobæus,
_Florilegium_, 44, vol. ii. 227; Xenophon, _Cyri Institutio_,
i. 6. 33.]
[Footnote 195: Rawlinson, in his translation of Herodotus, i. 262
_sq._ n. 3.]
[Footnote 196: Spiegel, _op. cit._ iii. 686.]
[Footnote 197: Polak, _Persien_, i. 10. Wallin, _Reseanteckningar
från Orienten_, iv. 192, 247. Wilson, _Persian Life and Customs_,
p. 229 _sqq._]
[Footnote 198: Polak, _op. cit._ ii. 95.]
Falsehood is a prevailing vice in other Muhammedan countries
also. "Constant veracity," says Mr. Lane, "is a virtue extremely
rare in modern Egypt"; and a deceitful disposition in commercial
transactions is one of the most notorious faults of the
Egyptian.[199] Mr. Lane partly ascribes this habit to the
influence of Islam, which allows, and even commands, falsehood in
certain cases. The common Moslem doctrine is, that a lie is
permissible when told in order to save one's own life, or to
reconcile persons at variance with each other, or to please or
persuade one's wife, or to obtain any advantage in a war with the
enemies of the faith.[200] But in other cases lying was highly
reprobated by the Prophet; and that the people have not forgotten
its sinfulness appears from the phrase, "No, I beg forgiveness of
God, it was so and so," which they seldom omit when retracting an
unintentional mis-statement.[201] I think it is erroneous to
regard the want of truthfulness among Muhammedan nations as a
result of their religion. The Eastern Christians and Buddhists
are no less addicted to falsehood than the Muhammedans.[202]
[Footnote 199: Lane, _Manners and Customs of the Modern
Egyptians_, i. 382 _sq._ _Cf._ Burckhardt, _Arabic Proverbs_,
p. 100.]
[Footnote 200: Lane, _Modern Egyptians_, i. 383. Muir, _Life of
Mahomet_, i. p. lxxiii. _sq._ n. [dagger].]
[Footnote 201: Lane, _Modern Egyptians_, i. 383 _sq._]
[Footnote 202: Vámbéry, _Der Islam im neunzehnten Jahrhundert_,
p. 232.]
The Homeric poems make us acquainted with gods and men who have
recourse to fraud and lying whenever it suits their purpose.[203]
The great Zeus makes no difficulty {95} in sending a lying dream
to Agamemnon. Pallas Athene is guilty of gross deceit and
treachery to Hector; she expressly recommends dissimulation, and
loves Odysseus on account of his deceitful character.[204] No man
deals more in feigned stories than this master of cunning, who
makes a boast of his falsehood.[205] In the period which lies
between the Homeric age and the Persian wars veracity made
perhaps some progress among the Greeks,[206] but it never became
one of their national virtues.[207] Yet in the Greek literature
deceit is frequently condemned as a vice, and truthfulness
praised as a virtue.[208] Achilles expresses his horror of
lying.[209] "Not to tell a lie," was one of the maxims of
Solon.[210] Pindar strongly censures a character like that of
Odysseus,[211] and ends up his eulogy on Psaumis by the assurance
that he never would contaminate his speech with a lie.[212]
According to Pythagoras, men become like gods when they speak the
truth.[213] According to Plato, the habit of lying makes the soul
ugly[214]; "truth is the beginning of every good thing, both to
gods and men."[215] Yet a distinction should be made between
different kinds of untruth. Though the many are too fond of
saying that at proper times and places falsehood may often be
right,[216] it must be admitted that a lie is in certain cases
useful and not hateful, as in dealing with enemies, or when those
whom we call our friends in a fit of madness or illusion are
going to do some harm.[217] Moreover, the rulers of the State are
allowed to lie for the public good, just as physicians make use
of medicines; and they will find a considerable dose of falsehood
and deceit necessary for this purpose.[218] On the other hand, if
the ruler catches anybody besides himself lying in the {96}
State, lie will punish him for introducing a practice "which is
equally subversive and destructive of ships or State."[219] Next
to him who takes a false oath, he who tells a falsehood in the
presence of his superiors--elders, parents, or rulers--is most
hateful to the gods.[220]
[Footnote 203: _Cf._ Kames, _Sketches of the History of Man_, iv.
150 _sq._; Mahaffy, _Social Life in Greece_, p. 26 _sqq._]
[Footnote 204: _Odyssey_, xiii. 331 _sq._]
[Footnote 205: _Ibid._ ix. 19 _sq._]
[Footnote 206: Schmidt, _Die Ethik der alten Griechen_, ii. 413.]
[Footnote 207: _Cf._ Thucydides, iii. 83.]
[Footnote 208: See Schmidt, _op. cit._ ii. 403 _sqq._]
[Footnote 209: _Iliad_, ix. 312 _sq._]
[Footnote 210: Diogenes Laertius, _Vitæ philosophorum_, i. 2 (60).]
[Footnote 211: Pindar, _Nemea_, viii. 26.]
[Footnote 212: _Idem_, _Olympia_, iv. 17.]
[Footnote 213: Stobæus, _op. cit._ xi. 25, vol. i. 312.]
[Footnote 214: Plato, _Gorgias_, p. 524 _sq._]
[Footnote 215: _Idem_, _Leges_, v. 730.]
[Footnote 216: _Ibid._ xi. 916.]
[Footnote 217: Plato, _Respublica_, ii. 382.]
[Footnote 218: _Ibid._ iii. 389; v. 459.]
[Footnote 219: Plato, _Respublica_, iii. 389.]
[Footnote 220: _Idem_, _Leges_, xi. 917. _Idem_, _Respublica_,
iii. 389.]
Not without reason did the Romans of the republican age contrast
their own _fides_ with the mendacity of the Greeks and the
perfidy of the Ph[oe]nicians. "The goddess of faith (of human and
social faith)," says Gibbon, "was worshipped, not only in her
temples, but in the lives of the Romans; and if that nation was
deficient in the more amiable qualities of benevolence and
generosity, they astonished the Greeks by their sincere and
simple performance of the most burdensome engagements."[221]
Their annals are adorned with signal examples of uprightness,
which, though to a great extent fictitious, yet bear testimony to
the estimation in which that quality was held.[222] The Greeks
had no Regulus who "chose to deliver himself up to a cruel death
rather than to falsify his word to the enemy."[223] The basest
forms of falsehood were severely punished by law. According to
the Twelve Tables, any one who had slandered or libelled another
by imputing to him a wrongful or immoral act, was to be scourged
to death,[224] and capital punishment was also inflicted on false
witnesses[225] and corrupt judges.[226] However, already before
the end of the Republic dishonesty, perjuries, and forgeries
became common in Rome.[227]
[Footnote 221: Gibbon, _History of the Decline and Fall of the
Roman Empire_, v. 311.]
[Footnote 222: _Cf._ Inge, _Society in Rome under the Cæsars_,
p. 33 _sq._]
[Footnote 223: Cicero, _De officiis_, i. 13.]
[Footnote 224: _Lex Duodecim Tabularum_, viii. 1.]
[Footnote 225: _Ibid._ viii. 23. Aulus Gellius, _Noctes Atticæ_,
xx. i. 53.]
[Footnote 226: _Lex Duodecim Tabularum_, ix. 3. Aulus Gellius,
_op. cit._ xx. i. 7.]
[Footnote 227: Inge, _op. cit._ p. 35.]
The ancient Scandinavians considered it disgraceful for a man to
tell a lie, to break a promise, or to commit a treacherous
act.[228] To kill or rob openly was a pardonable offence, if an
offence at all; but he who did it secretly was a _nithinger_, a
"hateful man," unless indeed he afterwards {97} openly declared
his deed.[229] In the Irish Senchus Mór it is said that not only
false witness, but lying in general, deprives the guilty person
of "half his honour-price up to the third time";[230] and,
according to the commentary to the Book of Aicill, the double of
his own full honour-price is due from each person who commits the
crime of secret murder.[231]
[Footnote 228: Maurer, _Bekehrung des Norwegischen Stammes_, ii.
154, 183 _sq._ Rosenberg, _Nordboernes Aandsliv_, i. 487.]
[Footnote 229: Wilda, _Strafrecht der Germanen_, p. 569.
Nordström, _Bidrag till den svenska samhälls-författningens
historia_, ii. 320 _sqq._ Keyser, _Efterladte Skrifter_, ii. pt.
i. 361. Rosenberg, _Nordboernes Aandsliv_, i. 487. von Amira,
'Recht,' in Paul's _Grundriss der germanischen Philologie_, ii.
pt. ii. 173.]
[Footnote 230: _Ancient Laws of Ireland_, i. 57.]
[Footnote 231: _Ibid._ iii. 99.]
In the Old Testament there are recorded, from the patriarchal
age, some cases of lying, which, far from being condemned, in no
way prevented the liar being a special object of divine favour.
It must be admitted, however, that undue importance has been
attached to some of these acts of falsehood,[232] which were
committed among foreigners with a view to escaping an impending
danger.[233] For instance, when Isaac, dwelling in Gerar, said of
his wife that she was his sister, for fear lest the men of the
place should kill him,[234] he did a thing which few
conscientious men under similar circumstances would hesitate to
do. As for Jacob's long course of double-dealing with his
father-in-law, who was equally greedy and unscrupulous, it should
be remembered that they were natives of different lands.[235]
Again, when Jacob, at the instigation of his mother, grossly
deceived his own blind father, the intriguers, as has been pointed
out,[236] manifestly felt that the blessing extorted from Isaac
ought to descend upon Jacob rather than upon Esau, and inasmuch as
the word of the father was held to carry with it divine validity
and potency, the securing of it by fair means or foul was deemed an
urgent necessity. It is obvious that the ancient Hebrews did not
condemn deceit as wrong in the abstract, and that they were very
unscrupulous in the use of means. Whenever {98} David was
threatened by any danger, he immediately employed a falsehood
which served his turn; though not incapable of generosity, he
deceived enemies and friends indifferently, and there is probably
no record of treachery and lying consistently pursued which
surpasses in baseness his affair with his faithful servant Uriah
the Hittite.[237] It is true that his conduct towards Uriah was
condemned; "the thing that David had done displeased the
Lord."[238] But it is significant that Yahveh himself
occasionally had recourse to deceit for the purpose of carrying
out his plans. In order to ruin Ahab he commissioned a lying
spirit to deceive his prophets;[239] and once he threatened to
use deception as a means of taking revenge upon idolaters.[240]
But to bear false witness against a neighbour was strictly
prohibited;[241] the false witness should suffer the punishment
which he was minded to bring upon the person whom he
calumniated.[242] In Ecclesiasticus lying is severely
censured:--"A lie is a foul blot in a man, yet it is continually
in the mouth of the untaught. A thief is better than a man that
is accustomed to lie: but they both shall have destruction to
heritage. The disposition of a liar is dishonourable, and his
shame is ever with him."[243] "Lying lips are abomination to the
Lord: but they that deal truly are his delight."[244] According
to the Talmud, "four shall not enter Paradise: the scoffer, the
liar, the hypocrite, and the slanderer."[245] Only for the sake
of peace, and especially domestic peace, may a man tell a lie
without sinning;[246] but he who changes his word commits as
heavy a sin as he who worships idols.[247] The duty of
truthfulness was particularly emphasised by the Essenes.[248] He
who entered their sect had to pledge himself always to love {99}
truth and strive to reclaim all liars.[249] "They are eminent for
fidelity," says Josephus. "Whatsoever they say also is firmer
than an oath; but swearing is avoided by them, and they esteem it
worse than perjury; for they say that he who cannot be believed
without [swearing by] God is already condemned."[250]
[Footnote 232: _E.g._, by McCurdy, 'Moral Evolution of the Old
Testament,' in _American Journal of Theology_, i. 665 _sq._; von
Jhering, _Zweck im Recht_, ii. 606 _sq._; Spencer, _Principles of
Ethics_, i. 402.]
[Footnote 233: _Genesis_, xii. 12 _sq._; xx. 2.]
[Footnote 234: _Ibid._ xxvi. 7.]
[Footnote 235: _Ibid._ ch. xxix. _sqq._]
[Footnote 236: McCurdy, _loc. cit._ p. 666.]
[Footnote 237: _Cf._ Kuenen, _Religion of Israel_, i. 327;
McCurdy, _loc. cit._ p. 681.]
[Footnote 238: _2 Samuel_, xi. 27; xii. 1 _sqq._]
[Footnote 239: _1 Kings_, xxii. 20 _sqq._]
[Footnote 240: _Ezekiel_, xiv. 7 _sqq._ _Cf._ Spencer,
_Principles of Ethics_, i. 402.]
[Footnote 241: _Deuteronomy_, v. 20.]
[Footnote 242: _Ibid._ xix. 1 6 _sqq._]
[Footnote 243: _Ecclesiasticus_, xx. 24 _sqq._]
[Footnote 244: _Proverbs_, xii. 22.]
[Footnote 245: Deutsch, _Literary Remains_, p. 57.]
[Footnote 246: Hershon, _Treasures of the Talmud_, p. 69 _sq._]
[Footnote 247: _Sanhedrin_, fol. 92 A, quoted by Montefiore,
_Hibbert Lectures on the Religion of the Ancient Hebrews_,
p. 558.]
[Footnote 248: Philo Judæus, _Quod liber sit quisque virtuti
studet_, p. 877 (_Opera_, ii. 458).]
[Footnote 249: Josephus, _De bello Judaico_, ii. 8. 7.]
[Footnote 250: _Ibid._ ii. 8. 6.]\
"Speak every man truth with his neighbour,"[251] was from early
times regarded as one of the most imperative of Christian
maxims.[252] According to St. Augustine, a lie is not permissible
even when told with a view to saving the life of a neighbour;
"since by lying eternal life is lost, never for any man's
temporal life must a lie be told."[253] Yet all lies are not
equally sinful; the degree of sinfulness depends on the mind of
the liar and on the nature of the subject on which the lie is
told.[254] This became the authorised doctrine of the
Church.[255] Thomas Aquinas says that, although lying is always
sinful, it is not a mortal sin if the end intended be not
contrary to charity, "as appears in a jocose lie, that is
intended to create some slight amusement, and in an officious
lie, in which is intended even the advantage of our
neighbour."[256] Yet from early times we meet within the
Christian Church a much less rigorous doctrine, which soon came
to exercise a more powerful influence on the practice and
feelings of men than did St. Augustine's uncompromising love of
truth. The Greek Fathers maintained that an untruth is not a lie
when there is a "just cause" {100} for it; and as a just cause
they regarded not only self-defence, but also zeal for God's
honour.[257] This zeal, together with an indiscriminate devotion
to the Church, led to those "pious frauds," those innumerable
falsifications of documents, inventions of legends, and forgeries
of every description, which made the Catholic Church a veritable
seat of lying, and most seriously impaired the sense of truth in
the minds of Christians.[258] By a fiction, Papacy, as a divine
institution, was traced back to the age of the Apostles, and in
virtue of another fiction Constantine was alleged to have
abdicated his imperial authority in Italy in favour of the
successor of St. Peter.[259] The Bishop of Rome assumed the
privilege of disengaging men from their oaths and promises. An
oath which was contrary to the good of the Church was declared
not to be binding.[260] The theory was laid down that, as faith
was not to be kept with a tyrant, pirate, or robber, who kills
the body, it was still less to be kept with an heretic, who kills
the soul.[261] Private protestations were thought sufficient to
relieve men in conscience from being bound by a solemn treaty or
from the duty of speaking the truth; and an equivocation, or play
upon words in which one sense is taken by the speaker and another
sense intended by him for the hearer, was in some cases held
permissible.[262] According to Alfonso de' Liguori--who lived in
the eighteenth century and was beatified in the nineteenth, and
whose writings were declared by high authority not to contain a
word that could be justly found fault with,[263]-- {101} there
are three sorts of equivocation which may be employed for a good
reason, even with the addition of a solemn oath. We are allowed
to use ambiguously words having two senses, as the word _volo_,
which means both to "wish" and to "fly"; sentences bearing two
main meanings, as "This book is Peter's," which may mean either
that the book belongs to Peter or that Peter is the author of it;
words having two senses, one more common than the other or one
literal and the other metaphorical--for instance, if a man is
asked about something which it is in his interest to conceal,
he may answer, "No, I say," that is "I say the word 'no'"[264]
As for mental restrictions, again, such as are "purely mental,"
and on that account cannot in any manner be discovered by other
persons, are not permissible; but we may, for a good reason,
make use of a "non-pure mental restriction," which, in the
nature of things, is discoverable, although it is not discovered
by the person with whom we are dealing.[265] Thus it would be
wrong secretly to insert the word "no" in an affirmative oath
without any external sign; but it would not be wrong to insert
it in a whispering voice or under the cover of a cough. The
"good reason" for which equivocations and non-pure mental
restrictions may be employed is defined as "any honest object,
such as keeping our goods spiritual or temporal."[266] In
support of this casuistry it is uniformly said by Catholic
apologists that each man has a right to act upon the defensive,
that he has a right to keep guard over the knowledge which he
possesses in the same way as he may defend his goods; and as for
there being any deceit in the matter--why, soldiers use
stratagems in war, and opponents use feints in fencing.[267]
[Footnote 251: _Ephesians_, iv. 25.]
[Footnote 252: Gass, _Geschichte der christlichen Ethik_, i. 90.]
[Footnote 253: St. Augustine, _De mendacio_, 6 (Migne,
_Patrologiæ cursus_, xl. 494 _sq._).]
[Footnote 254: _Idem_, _Enchiridion_, 18 (Migne, _op. cit._ xl.
240); _Idem_, _De mendacio_, 21 (Migne, xl. 516). For St.
Augustine's views on lying see also his treatise _Contra
mendacium_, addressed to Consentius (Migne, xl. 517 _sqq._), and
Bindemann, _Der heilige Augustinus_, ii. 465 _sqq._]
[Footnote 255: Gratian, _Decretum_, ii. 22. 2. 12, 17. _Catechism
of the Council of Trent_, iii. 9. 23.]
[Footnote 256: Thomas Aquinas, _Summa theologica_, ii.-ii. **110.
3 _sq._ St. Augustine says (_De mendacio_, 2 [Migne, _op. cit._
xl. 487 _sq._]; _Quæstiones in Genesim_, 145, _ad Gen._ xliv. 15
[Migne, xxxiv. 587]) that jokes which "bear with them in the tone
of voice, and in the very mood of the joker a most evident
indication that he means no deceit," are not accounted lies,
though the thing he utters be not true. This statement is also
incorporated in Gratian's _Decretum_ (ii. 22. 2. 18).]
[Footnote 257: Gass, _op. cit._ i. 91, 92, 236 _sqq._ Newman,
_Apologia pro vita sua_, p. 349 _sq._]
[Footnote 258: von Mosheim, _Institutes of Ecclesiastical
History_, i. 275. Middleton, _Free Inquiry into the Miraculous
Powers, which are supposed to have subsisted in the Christian
Church_, _passim_. Lecky, _Rise, and Influence of Rationalism in
Europe_, i. 396 _sqq._ Gass, _op. cit._ i. 91, 235. von Eicken,
_System der mittelalterlichen Weltanschauung_, pp. 654-656, 663.]
[Footnote 259: von Eicken, _op. cit._ p. 656. Poole,
_Illustrations of the History of Medieval Thought_, p. 249.]
[Footnote 260: Gregory IX. _Decretales_, ii. 24. 27.]
[Footnote 261: Simancas, _De catholicis institutionibus_, xlvi.
52 _sq._ p. 365 _sq._]
[Footnote 262: Alagona, _Compendium manualis D. Navarri_, xii.
88, p. 94 _sq._:--"Fur, qui est furatus aliquid, si interrogetur
a judice non competenti, vel non juridice, an sit furatus tale
quid, potest secura conscientia respondere simpliciter, non sum
furatus, intelligendo intra se in tali die, vel anno." See also
Kames, _op. cit._ iv. 158 _sq._]
[Footnote 263: Meyrick, _Moral and Devotional Theology of the
Church of Rome_, i. 3.]
[Footnote 264: Alfonso de' Liguori, _Theologia moralis_, iii.
151, vol. i. 249.]
[Footnote 265: _Ibid._ iii. 152, vol. i. 249.]
[Footnote 266: _Ibid._ iii. 151, vol. i. 249.]
[Footnote 267: Meyrick, _op. cit._ i. 25]
Adherence to truth and especially perfect fidelity to a promise
were strongly insisted upon by the code of Chivalry.[268] However
exacting or absurd the vow might {102} be, a knight was compelled
to perform it in all the strictness of the letter. A man
frequently promised to grant whatever another should ask, and he
would have lost the honour of his knighthood if he had declined
from his word.[269] We are told by Lancelot du Lac that when King
Artus had given his word to a knight to make him a present of his
wife, he would neither listen to the lamentations of the
unfortunate woman, nor to any representations which could be made
him; he replied that a king must not go from his word, and the
queen was accordingly delivered to the knight.[270] The knights
taken in war were readily allowed liberty for the time they
asked, on their word of honour that they would return of their
own accord, whenever it should be required.[271] So great, it is
said, was the knight's respect for an oath, a promise, or a vow,
that when they lay under any of these restrictions, they appeared
everywhere with little chains attached to their arms or habits to
show all the world that they were slaves to their word; nor were
these chains taken off till their promise had been performed,
which sometimes extended to a term of four or five years.[272] It
cannot be expected, of course, that reality should have always
come up to the ideal. In the thirteenth century the Count of
Champagne declared that he confided more in the lowest of his
subjects than in his knights.[273] Moreover, the knightly duty of
sincerity seems to have gone little beyond the formal fulfilment
of an engagement. "The age of Chivalry was an age of chicane, and
fraud, and trickery, which were not least conspicuous among the
knightly classes."[274] It is significant that the English law of
the thirteenth century, though quite willing to admit in vague
phrase that no one should be suffered to gain anything by fraud,
was inclined to hold that a man has himself to thank if he is
misled by deceit, the king's court generally providing no remedy
for him who to {103} his disadvantage had trusted the word of a
liar.[275] Towards the end of the Middle Ages and later, crimes
against the Mint and the offence of counterfeiting seals, usually
accompanied by that of forging letters or official documents,
were extremely common in England;[276] and false weights, false
measures, and false pretences of all kinds were ordinary
instruments of commerce.[277]
[Footnote 268: _Book of the Ordre of Chyualry_, foll. 18 b, 31 b,
34 b. Robertson, _History of the Reign of Charles V._ i. 84.
Sainte-Palaye, _Mémoires sur l'ancienne chevalerie_, i. 76 _sq._]
[Footnote 269: Mills, _History of Chivalry_, p. 152.]
[Footnote 270: Lancelot du Lac, vol. ii. fol. 2 a.]
[Footnote 271: Sainte-Palaye, _op. cit._ i. 135.]
[Footnote 272: _Ibid._ i. 236 _sq._]
[Footnote 273: _Ibid._ ii. 47. _Cf._ Kames, _op. cit._ iv. 157.]
[Footnote 274: Pike, _History of Crime in England_, i. 283.]
[Footnote 275: Pollock and Maitland, _History of English Law
before the Time of Edward I._ ii. 535 _sq._]
[Footnote 276: Pike, _op. cit._ i. 265, 269; ii. 392.]
[Footnote 277: _Ibid._ i. 142; ii. 238.]
In modern times, according to Mr. Pike, the Public Records
testify a decrease of deception in England.[278] Commercial
honesty has improved, and those mean arts to which, during the
reigns of the Tudors, even men in the highest positions
frequently had recourse, have now, at any rate, descended to a
lower grade of society.[279] At present, in the civilised
countries of the West, opinion as to what the duty of sincerity
implies varies not only in different individuals, but among
different classes or groups of people, as also among different
nations. Duplicity is held more reprehensible in a gentleman than
in a shopkeeper or a peasant. The notion which seems to be common
in England, that an advocate is over-scrupulous who refuses to
say what he knows to be false if he is instructed to say it,[280]
appears strange at least to some foreigners;[281] and in certain
countries it is commonly regarded as blamable if a person
ostensibly professes a religion in which he does not believe,
say, by going to church. The Quakers deem all complimentary modes
of speech, for instance in addressing people, to be objectionable
as being inconsistent with truth.[282] Certain philosophers have
expressed the opinion that veracity is an unconditional duty,
which is not to be limited by any expediency, but must be
respected in all circumstances. According to Kant, it would be a
crime to tell a falsehood to a murderer who asked us whether
{104} our friend, of whom he was in pursuit, had taken refuge in
our house.[283] Fichte maintains that the defence of so-called
necessary lies is "the most wicked argument possible amongst
men."[284] Dymond says, "If I may tell a falsehood to a robber in
order to save my property, I may commit parricide for the same
purpose."[285] But this rigorous view is not shared by common
sense, nor by orthodox Protestant theology.[286] Jeremy Taylor
asks, "Who will not tell a harmless lie to save the life of his
friend, of his child, of himself, of a good and brave man?"[287]
Where deception is designed to benefit the person deceived, says
Professor Sidgwick, "common sense seems to concede that it may
sometimes be right: for example, most persons would not hesitate
to speak falsely to an invalid, if this seemed the only way of
concealing facts that might produce a dangerous shock: nor do I
perceive that any one shrinks from telling fictions to children,
on matters upon which it is thought well that they should not
know the truth."[288] In the case of grown-up people, however,
this principle seems to require the modification made by
Hutcheson, that there is no wrong in false speech when the party
deceived himself does not consider it an injury to be
deceived.[289] Otherwise it might easily be supposed to give
support to "pious fraud," which in its crudest form is nowadays
generally disapproved of, but which in subtle disguise still has
many advocates among religious partisans. It is argued that the
most important truths of religion cannot be conveyed into the
minds of ordinary men, except by being enclosed, as it were, in a
shell of fiction, and that by relating such fictions as if they
were facts we are really performing an act of substantial
veracity.[290] But this argument seems chiefly to have been
invented for the {105} purpose of supporting a dilapidated
structure of theological teaching, and can hardly be accepted by
any person unprejudiced by religious bias. As a means of
self-defence deviation from truth has been justified not only in
the case of grosser injuries, but in the case of illegitimate
curiosity, as it seems unreasonable that a person should be
obliged to supply another with information which he has no right
to exact.[291] The obligation of keeping a promise, again, is
qualified in various ways. Thoughtful persons would commonly
admit that such an obligation is relative to the promisee, and
may be annulled by him.[292] A promise to do an immoral act is
held not to be binding, because the prior obligation not to do
the act is paramount.[293] If, before the time comes to fulfil a
promise, circumstances have altered so much that the effects of
keeping it are quite different from those which were foreseen
when it was made, all would agree that the promisee ought to
release the promiser; but if he declines to do so, some would say
that the latter is in every case bound by his promise, whilst
others would maintain that a considerable alteration of
circumstances has removed the obligation.[294] How far promises
obtained by force or fraud are binding is a much disputed
question.[295] According to Hutcheson, for instance, no regard is
due to a promise which has been extorted by unjust violence.[296]
Adam Smith, on the other hand, considers that whenever such a
promise is violated, though for the most necessary reason, it is
always with some degree of dishonour to the person who made
it, and that "a brave man ought to die rather than make a promise
{106} which he can neither keep without folly nor violate without
ignominy."[297]
[Footnote 278: _Ibid._ i. 264. _Cf._ _ibid._ ii. 474.]
[Footnote 279: _Ibid._ ii. 14 _sq._]
[Footnote 280: Sidgwick, _Methods of Ethics_, p. 316. Paley,
_Principles of Moral and Political Philosophy_, iii. 15
(_Complete Works_, ii. 117). The same view was expressed by
Cicero (_De officiis_, ii. 14).]
[Footnote 281: See also Dymond, _Essays on the Principles of
Morals_, ii. 5, p. 50 _sqq._]
[Footnote 282: Gurney, _Views and Practices of the Society of
Friends_, p. 401.]
[Footnote 283: Kant, 'Ueber ein vermeintes Recht, aus
Menschenliebe zu Lügen,' in _Sämmtliche Werke_, vii.
309.]
[Footnote 284: Fichte, _Das System der Sittenlehre_, p. 371;
English translation, p. 303 _sq._]
[Footnote 285: Dymond, _op. cit._ ii. 6, p. 57.]
[Footnote 286: Reinhard, _System der Christlichen Moral_, iii.
193 _sqq._ Martensen, _Christian Ethics_, 'Individual Ethics,'
p. 216 _sqq._ Newman, _Apologia pro vita sua_, p. 274.]
[Footnote 287: Taylor, _Whole Works_, xii. 162.]
[Footnote 288: Sidgwick, _op. cit._ p. 316.]
[Footnote 289: Hutcheson, _System of Moral Philosophy_, ii. 32.]
[Footnote 290: Sidgwick, _op. cit._ p. 316.]
[Footnote 291: Schopenhauer, _Die Grundlage der Moral_, § 17
(_Sämmtliche Werke_, vi. 247 _sqq._).]
[Footnote 292: Whewell, _Elements of Morality_, p. 156. Sidgwick,
_op. cit._ p. 305.]
[Footnote 293: Dymond, _op. cit._ ii. 6, p. 55. Whewell, _op.
cit._ p. 156 _sq._ Sidgwick, _op. cit._ p. 305. This is also the
opinion of Thomas Aquinas (_op. cit._ ii.-ii. 110. 3. 5).]
[Footnote 294: Sidgwick, _op. cit._ p. 306 _sq._ Thomas Aquinas
says (_op. cit._ ii.-ii. 110. 3. 5) that a person who does not do
what he has promised is excused "if the conditions of persons and
things are changed."]
[Footnote 295: Dymond, _op. cit._ ii. 6, p. 55 _sq._ Whewell,
_op. cit._ pp. 155, 159 _sqq._ Sidgwick, _op. cit._ p. 305 _sq._
Adam Smith, _Theory of Moral Sentiments_, p. 486 _sqq._]
[Footnote 296: Hutcheson, _System of Moral Philosophy_, ii. 34.]
[Footnote 297: Adam Smith, _op. cit._ p. 489.]
In point of veracity and good faith the old distinction between
duties which we owe to our fellow-countrymen and such as we owe
to foreigners is still preserved in various cases. It is
particularly conspicuous in the relations between different
states, in peace or war. Stratagems and the employment of
deceptive means necessary to procure intelligence respecting the
enemy or the country are held allowable in warfare, independently
of the question whether the war is defensive or aggressive.[298]
Deceit has, in fact, often constituted a great share of the glory
of the most celebrated commanders; and particularly in the
eighteenth century it was a common opinion that successes gained
through a spy are more creditable to the skill of a general than
successes in regular battles.[299] Lord Wolseley writes:--"As a
nation we are bred up to feel it a disgrace even to succeed by
falsehood; the word spy conveys something as repulsive as slave;
we will keep hammering along with the conviction that honesty is
the best policy, and that truth always wins in the long run.
These pretty little sentences do well for a child's copy-book,
but the man who acts upon them in war had better sheathe his
sword for ever."[300] At the same time, there are some exceptions
to the general rule that deceit is permitted against an enemy.
Under the customs of war it has been agreed that particular acts
and signs shall have a specific meaning in order that
belligerents {107} may carry on certain necessary intercourse,
and it is forbidden to employ such acts or signs in deceiving an
enemy. Thus information must not be surreptitiously obtained
under the shelter of a flag of truce; buildings not used as
hospitals must not be marked with an hospital flag; and persons
not covered by the provisions of the Geneva Convention must not
be protected by its cross.[301] A curious arbitrary rule affects
one class of stratagems by forbidding certain permitted means of
deception from the moment at which they cease to deceive. It is
perfectly legitimate to use the distinctive emblems of an enemy
in order to escape from him or to draw his forces into action;
but it is held that soldiers clothed in the uniforms of their
enemy must put on a conspicuous mark by which they can be
recognised before attacking, and that a vessel using the enemy's
flag must hoist its own flag before firing with shot or
shell.[302] Disobedience to this rule is considered to entail
grave dishonour; for "in actual battle enemies are bound to
combat loyally, and are not free to ensure victory by putting on
a mask of friendship."[303] But, as Mr. Hall observes, it is not
easy to see why it is more disloyal to wear a disguise when it is
obviously useless, than when it serves its purpose.[304] Finally,
it is universally agreed that promises given to the enemy ought
to be kept;[305] this was admitted even by Machiavelli[306] and
Bynkershoek,[307] who did not in general burden belligerents with
particularly heavy duties. But the restrictions which
"international law" {108} lays on deceit against enemies do not
seem to be taken very seriously. Treaties between nations and
promises given by one state to another, either in war or peace,
are hardly meant to be kept longer than it is convenient to keep
them. And when an excuse for the breach of faith is felt
necessary, that excuse itself is generally a lie.
[Footnote 298: _Conférence de Bruxelles_, art. 14. _Instructions
for the Government of Armies of the United States in the Field_,
art. 16, 101. _Conférence internationale de la paix, La Haye_,
1899, 'Règlement concernant les lois de la guerre sur terre,'
art. 24, pt. i. p. 245. Roman Catholicism admits the employment
of stratagems in wars which are just (Gratian, _op. cit._ ii. 23.
2. 2; Ayala, _De jure et officiis bellicis et disciplina
militari_, i. 8. 1 _sq._; Ferraris, quoted by Adds, _Catholic
Dictionary_, p. 945; Nys, _Le droit de la guerre et les
précurseurs de Grotius_, p. 128 _sq._), on the authority of St.
Augustine, the great advocate of general truthfulness
(_Quæstiones in Jesum Nave_, 10, _ad Jos._ viii. 2 [Migne, _op.
cit._ xxxiv. 781]:--"Cum autem justum bellum susceperit, utrum
aperta pugna utrum insidiis vincat, nihil ad justitiam interest").]
[Footnote 299: Halleck, _International Law_, i. 567. Maine,
_International Law_, p. 149 _sqq._]
[Footnote 300: Wolseley, _Soldier's Pocket-Book for Field
Service_, p. 169.]
[Footnote 301: _Conférence de Bruxelles_, art. 13 _sq._
_Instructions for the Government of Armies of the United States
in the Field_, art. 101, 114, 117. _Manual of the Laws of War on
Land, prepared by the Institute of International Law_, (art. 8
(_d_). Hall, _Treatise on International Law_, p. 537 _sq._]
[Footnote 302: Hall, _op. cit._ p. 538 _sq._ Bluntschli, _Droit
international_, § 565, p. 328 _sq._]
[Footnote 303: Bluntschli, _op. cit._ § 565, p. 329.]
[Footnote 304: Hall, _op. cit._ p. 539.]
[Footnote 305: Heffter, _Das Europäische Völkerrecht der
Gegenwart_, § 125, p. 262.]
[Footnote 306: Machiavelli, _Discorsi_, iii. 40 (_Opere_,
iii. 164).]
[Footnote 307: Bynkershoek, _Quæstiones juris publici_, i. 1,
p. 4. The maxim of Canon Law, "Fides servanda hosti" (Gratian,
_Decretum_, ii. 23. i. 3), however, was greatly impaired by the
principle, "Juramentum contra utilitatem ecclesiasticam
praestitum non tenet" (Gregory IX. _Decretales_, ii. 24, 27. See
Nys, _Le droit de la guerre et les précurseurs de Grotius_,
p. 126 _sq._).]
CHAPTER XXXI
THE REGARD FOR TRUTH AND GOOD FAITH (_concluded_)
THE condemnation of untruthfulness and bad faith springs from a
variety of sources. In the first place, he who tells a lie, or
who breaks a promise, generally commits an injury against another
person. His act consequently calls forth sympathetic resentment,
and becomes an object of moral censure.
Men have a natural disposition to believe what they are told.
This disposition is particularly obvious in young children; it is
acquired wisdom and experience only that teach incredulity, and,
as Adam Smith observes, they very seldom teach it enough.[1] Even
people who are themselves pre-eminent liars are often deceived by
the falsehoods of others.[2] When detected a deception always
implies a conflict between two irreconcilable ideas; and such a
conflict gives rise to a feeling of pain,[3] which may call forth
resentment against its volitional cause, the deceiver.
[Footnote 1: Reid, _Inquiry into the Human Mind_, vi. 24, p. 430
_sqq._ Adam Smith, _Theory of Moral Sentiments_, p. 494 _sq._
Dugald Stewart, _Philosophy of the Active and Moral Powers of
Man_, ii. 340 _sq._]
[Footnote 2: Burton, _Two Trips to Gorilla Land_, i. 106 (Mpongwe).]
[Footnote 3: Lehmann, _Hovedlovene for det menneskelige
Følelseliv_, p. 181. _Cf._ Bain, _Emotions and the Will_, p. 218.]
But men are not only ready to believe what they are told, they
also like to know the truth. Curiosity, or the love of truth, is
coeval with the first operations of the intellect; it seems to be
an ultimate fact in the human {110} frame.[4] In our endeavour to
learn the truth we are frustrated by him who deceives us, and he
becomes an object of our resentment.
[Footnote 4: Dugald Stewart, _op. cit._ ii. 334, 340.]
Nor are we injured by a deception merely because we like to know
the truth, but, chiefly, because it is of much importance for us
that we should know it. Our conduct is based upon our ideas;
hence the erroneous notion as regards some fact in the past,
present, or future, which is produced by a lie or false promise,
may lead to unforeseen events detrimental to our interests.
Moreover, on discovering that we have been deceived, we have the
humiliating feeling that another person has impertinently made
our conduct subject to his will. This is a wound on our pride, a
blot on our honour. Francis I. of France laid down as a
principle, "that the lie was never to be put up with without
satisfaction, but by a base-born fellow."[5] "The lie," says
Sainte-Palaye, "has always been considered the most fatal and
irreparable affront that a man of honour could receive."[6]
[Footnote 5: Millingen, _History of Duelling_, i. 71.]
[Footnote 6: Sainte-Palaye, _Mémoires sur l'ancienne chevalerie_,
i. 78.]
How largely the condemnation of falsehood and bad faith is due to
the harm suffered by the victim appears from the fact that a lie
or breach of faith is held more condemnable in proportion to the
magnitude of the harm caused by it. But even in apparently
trifling cases the reflective mind strongly insists upon the
necessity of truthfulness and fidelity to a given word. Every lie
and every unfulfilled promise has a tendency to lessen mutual
confidence, to predispose the perpetrator to commit a similar
offence in the future, and to serve as a bad example for others.
"The importance of truth," says Bentham, "is so great, that the
least violation of its laws, even in frivolous matters, is always
attended with a certain degree of danger. The slightest deviation
from it is an attack upon the respect we owe to it. It is a first
transgression which facilitates a second, and familiarises the
odious ideal {111} of falsehood."[7] Contrariwise, as Aristotle
observes, he who is truthful in unimportant matters will be all
the more so in important ones.[8] Similar considerations,
however, require a certain amount of reflection and
farsightedness; hence intellectual development tends to increase
the emphasis laid on the duties of sincerity and good faith. At
the earlier stages of civilisation it is frequently considered
good form to tell an untruth to a person in order to please him,
and ill-mannered to contradict him, however much he be
mistaken,[9] for the reason that farther consequences are left
out of account. The utilitarian basis of the duty of truthfulness
also accounts for those extreme cases in which a deception is
held permissible or even a duty, when promoting the true
interests of the person subject to it.
[Footnote 7: Bentham, _Theory of Legislation_, p. 260.]
[Footnote 8: Aristotle, _Ethica Nicomachea_, iv. 7. 8.]
[Footnote 9: Besides statements referred to above, see
Dobrizhoffer, _Account of the Abipones_, ii. 137; Hennepin, _New
Discovery of a Vast Country in America between New France and New
Mexico_, ii. 70; Dall, _Alaska_, p. 398 (Aleuts); Oldfield, in
_Trans. Ethn. Soc._ N.S. iii. 255 (West Australian natives). "The
natives of Africa," says Livingstone (_Expedition to the
Zambesi_, p. 309), "have an amiable of desire to please, and
often tell what they imagine will be gratifying, rather than the
uninteresting naked truth." An English sportsman, after firing at
an antelope, inquired of his dark attendant, "Is it wounded?" The
answer was, "Yes! the ball went right into his heart." These
mortal wounds never proving fatal, he asked a friend, who
understood the language, to explain to the man that he preferred
the truth in every case. "He is my father," replied the native,
"and I thought he would be displeased if I told him that he never
hits at all." The wish to please is likewise a fertile source of
untruth in children, especially girls (Sully, _Studies of
Childhood_, p. 256).]
The detestation of falsehood is in a very large measure due to
the motive which commonly is at the bottom of a lie. It is
doubtful whether a lie ever is told simply from love of
falsehood.[10] The intention to produce a wrong belief has a
deeper motive than the mere desire to produce such a belief; and
in most cases this motive is the deceiver's hope of benefiting
himself at the expense of the person deceived. A better motive
makes the act less detestable, or may even serve as a
justification. But the broad doctrine that the end sanctifies the
means is generally rejected; and the principle which sometimes
allows {112} deceit from a benevolent motive has been restricted
within very narrow limits by a higher conception of individual
freedom and individual rights. Thus the emancipation of morality
from theology has brought discredit on the old theory that
religious deception is permissible when it serves the object of
saving human souls from eternal perdition. The opinion that no
motive whatsoever can justify an act of falsehood has been
advocated not only by intuitional moralists, but on utilitarian
grounds.[11] But it certainly seems absurd to the common sense of
mankind that we should be allowed to save our own life or the
life of a fellow-man by killing the person who wants to take it,
but not by deceiving him.
[Footnote 10: Dugald Stewart, _op. cit._ ii. 342.]
[Footnote 11: Macmillan, _Promotion of General Happiness_,
p. 166 _sq._]
It is easy to see why falsehood is so frequently held
permissible, praiseworthy, or even obligatory, when directed
against a stranger. In early society an injury inflicted on a
stranger calls forth no sympathetic resentment. On the contrary,
being looked upon with suspicion or hated as an enemy, he is
considered a proper object of deception. Among the Bushmans "no
one dare give any information in the absence of the chief or
father of the clan."[12] "A Bedouin," says Burckhardt, "who does
not know the person interrogating him, will seldom answer with
truth to questions concerning his family or tribe. The children
are taught never to answer similar questions, lest the
interrogator may be a secret enemy and come for purposes of
revenge."[13] Among the Beni Amer a stranger can never trust a
man's word on account of "their contempt for everything
foreign."[14] That even civilised nations allow stratagem in
warfare is the natural consequence of war itself being allowed;
and if good faith is to be preserved between enemies, that is
because only thereby useless cruelty can be avoided and an end be
put to hostilities.
[Footnote 12: Chapman, _Travels in the Interior of South Africa_,
i. 76.]
[Footnote 13: Burckhardt, _Notes on the Bedouins and Wahábys_,
p. 210.]
[Footnote 14: Munzinger, _Ostafrikanische Studien_, p. 337.]
However, deceit is not condemned merely because it is {113} an
injury to the party deceived and as such apt to arouse
sympathetic resentment, but it is an object of disinterested,
moral resentment also because it is intrinsically antipathetic.
Lying is a cheap and cowardly method of gaining an undue
advantage, and is consequently despised where courage is
respected.[15] It is the weapon of the weak, the woman,[16] and
the slave.[17] Fraud, says Cicero, is the property of a fox,
force that of a lion; "both are utterly repugnant to society, but
fraud is the more detestable."[18] "To lie is servile," says
Plutarch, "and most hateful in all men, hardly to be pardoned
even in poor slaves."[19] On account of its cowardliness, lying
was incompatible with Teutonic and knightly notions of manly
honour; and among ourselves the epithets "liar" and "coward" are
equally disgraceful to a man. "All . . . in the rank and station
of gentlemen," Sir Walter Scott observes, "are forcibly called
upon to remember that they must resent the imputation of a
voluntary falsehood as the most gross injury."[20] Fichte asks,
"Whence comes that internal shame for one's self which manifests
itself even stronger in the case of a lie than in the case of any
other violation of conscience?" And his answer is, that the lie
is accompanied by cowardice, and that nothing so much dishonours
us in our own eyes as want of courage.[21] According to Kant,
"a lie is the abandonment, and, as it were, the annihilation,
of the dignity of a man."[22]
[Footnote 15: _Cf._ Schopenhauer, _Die Grundlage der Moral_, § 17
(_Sämmtliche Werke_, vi. 250); Grote, _Treatise on the Moral
Ideals_, p. 254.]
[Footnote 16: Women are commonly said to be particularly addicted
to falsehood (Schopenhauer, _Parerga und Paralipomena_, ii. 497
_sq._ Galton, _Inquiries into Human Faculty_, p. 56 _sq._ Krauss,
_Sitte und Brauch der Südslaven_, pp. 508, 514. Maurer,
_Bekehrung des Norwegischen Stammmes_, ii. 159 [ancient
Scandinavians]. Döllinger, _The Gentile and the Jew_, ii. 234
[ancient Greeks]. Lane, _Arabian Society in the Middle Ages_,
p. 219. Le Bon, _La civilisation des Arabes_, p. 433. Loskiel,
_History of the Mission of the United Brethren_, i. 16
[Iroquois]. Hearne, _Journey to the Northern Ocean_, p. 307 _sq._
[Northern Indians]. Lyon, _Private Journal_, p. 349 [Eskimo of
Igloolik]. Dalager, _Grønlandske Relationer_, p. 69; Cranz,
_History of Greenland_, i. 175).]
[Footnote 17: See _infra_, p. 129 _sq._]
[Footnote 18: Cicero, _De officiis_, i. 13.]
[Footnote 19: Plutarch, _De educatione puerorum_, 14.]
[Footnote 20: Scott, 'Essay on Chivalry,' in _Miscellaneous Prose
Works_, vi. 58.]
[Footnote 21: Fichte, _Das System der Sittenlehre_, p. 370;
English translation, p. 302 _sq._]
[Footnote 22: Kant, _Metaphysische Anfangungsgründe der
Tugendlehre_, p. 84.]
{114} But a lie may also be judged of from a very different point
of view. It may be not only a sign of cowardice, but a sign of
cleverness. Hence a successful lie may excite admiration, a
disinterested kindly feeling towards the liar, genuine moral
approval; whereas to be detected in a lie is considered shameful.
And not only is the clever liar an object of admiration, but the
person whom he deceives is an object of ridicule. To the mind of
a West African native, Miss Kingsley observes, there is no
intrinsic harm in lying, "because a man is a fool who believes
another man on an important matter unless he puts on the
oath."[23] A Syrian proverb says, "Lying is the salt (goodness)
of men, and shameful only to one who believes."[24]
[Footnote 23: Kingsley, _West African Studies_, p. 414. _Cf._
Sommerville, 'Ethnogr. Notes in New Georgia,' _Jour. Anthr.
Inst._ xxvi. 394.]
[Footnote 24: Burton and Drake, _Unexplored Syria_, i. 275. See
also Burckhardt, _Arabic Proverbs_, p. 44 _sq._]
The duties of sincerity and good faith are also to some extent,
and in certain cases principally, founded on prudential
considerations. Although, as the _Märchen_ tells us, it happens
every day in the world that the fraudulent is successful,[25]
there is a widespread notion that, after all, "honesty is the
best policy." "Nothing that is false can be lasting," says
Cicero.[26] "The liar is short-lived" (that is, soon detected),
say the Arabs.[27] According to a Wolof proverb, "lies, however
numerous, will be caught by truth when it rises up."[28] The
Basutos have a saying that "cunning devours its master."[29] It
has been remarked that "if there were no such thing as honesty,
it would be a good speculation to invent it, as a means of making
one's fortune."[30]
[Footnote 25: Grimm, _Kinder und Hausmärchen_, 'Katze und Maus in
Gesellschaft,' 'Die drei Spinnerinnen,' 'Das tapfere
Schneiderlein,' &c.]
[Footnote 26: Cicero, _De officiis_, ii. 12.]
[Footnote 27: Burckhardt, _Arabic Proverbs_, p. 119.]
[Footnote 28: Burton, _Wit and Wisdom from West Africa_, p. 15.]
[Footnote 29: Casalis, _Basutos_, p. 307.]
[Footnote 30: Quoted by Bentham, _Theory of Legislation_, p. 64.]
Moreover, lying is attended not only with social disadvantages,
but with supernatural danger. The West African Fjort have a tale
about a fisherman who every day used to catch and smuggle into
his house great quantities of fish, {115} but denied to his
brother and relatives that he had caught anything. All this time
the fetish Sunga was watching, and was grieved to hear him lie
thus. The fetish punished him by depriving him of the power of
speech, that he might lie no more, and so for the future he could
only make his wants known by signs.[31] In another instance, the
Fjort tell us, the earth-spirit turned into a pillar of clay a
woman who said that she had no peas for sale, when she had her
basket full of them.[32] The Nandi of the Uganda Protectorate
believe that "God punishes lying by striking the untruthful
person with lightning."[33] The Dyaks of Borneo think that the
lightning god is made angry even by the most nonsensical untruth,
such as the statement that a man has a cat for his mother or that
vermin can dance.[34] In Aneiteum, of the New Hebrides, the
belief prevailed that liars would be punished in the life to
come;[35] according to the Banks Islanders, they were excluded
from the true Panoi or Paradise after death.[36] We have already
noticed the emphasis which some of the higher religions lay on
veracity and good faith, and other statements maybe added
testifying the interest which gods of a more civilised type take
in the fulfilment of these duties. In ancient Egypt Amon Ra, "the
chief of all the gods," was invoked as "Lord of Truth";[37] and
Ma[=a], or Maat, represented as his daughter, was the goddess of
truth and righteousness.[38] In a Babylonian hymn the moon god is
appealed to as the guardian of truth.[39] The Vedic gods are
described as "true" and "not deceitful," as friends of honesty
and righteousness;[40] and Agni was the lord of vows.[41] The
{116} Zoroastrian Mithra was a protector of truth, fidelity, and
covenants;[42] and Rashnu Razista, "the truest true," was the
genius of truth.[43] According to the Iliad, Zeus is "no abettor
of falsehoods";[44] according to Plato, a lie is hateful not only
to men but to gods.[45] Among the Romans Jupiter and Dius Fidius
were gods of treaties,[46] and Fides was worshipped as the deity
of faithfulness.[47] How shall we explain this connection between
religious beliefs and the duties of veracity and fidelity to
promises?
[Footnote 31: Dennett, _Folklore of the Fjort_, p. 88 _sq._]
[Footnote 32: _Ibid._ p. 5.]
[Footnote 33: Johnston, _Uganda Protectorate_, ii. 879.]
[Footnote 34: Selenka, _Sonnige Welten_, p. 47.]
[Footnote 35: Turner, _Samoa_, p. 326.]
[Footnote 36: Codrington, _Melanesians_, p. 274.]
[Footnote 37: Wiedemann, _Religion of the Ancient Egyptians_,
p. 112. _Cf._ Brugsch, _Die Aegyptologie_, pp. 49, 91, 92, 97;
Amélineau, _Essai sur l'évolution des idées morales dans l'Égypte
Ancienne_, pp. 182, 188, 251.]
[Footnote 38: Wiedemann, 'Ma[=a], déesse de la vérité,' in
_Annales du Musée Guimet_, x. 561 _sqq._ Amélineau, _op. cit._
p. 187. _Infra_, p. 699.]
[Footnote 39: Mürdter-Delitzsch, _Geschichte Babyloniens und
Assyriens_, p. 37.]
[Footnote 40: Bergaigne, _La religion védique_, iii. 199.
Macdonell, _Vedic Mythology_, p. 18.]
[Footnote 41: _Satapatha-Brâhmana_, iii. 2. 2. 24.]
[Footnote 42: Darmesteter, _Ormazd et Ahriman_, p. 78. Geiger,
_Civilization of the Eastern Ir[=a]nians_, pp. lvii., 164.
Spiegel, _Erânische Alterthumskunde_, iii. 685.]
[Footnote 43: Darmesteter, in _Sacred Books of the East_, xxiii.
168.]
[Footnote 44: _Iliad_, iv. 235.]
[Footnote 45: Plato, _Respublica_, ii. 382.]
[Footnote 46: Fowler, _Roman Festivals of the Period of the
Republic_, pp. 141, 229 _sq._]
[Footnote 47: Cicero, _De officiis_, iii. 29. _Idem_, _De natura
deorum_, ii. 23; iii. 18. _Idem_, _De legibus_, ii. 8, 11.
Dionysius of Halicarnassus, _Antiquitates Romanæ_, ii. 75.]
Apart from the circumstances which in some cases make gods
vindicators of the moral law in general, as conceived of by their
worshippers, there are quite special reasons for their
disapproval of insincerity and bad faith. Here again we notice
the influence of magic beliefs on the religious sanction of
morality.
There is something uncanny in the untrue word itself. As
Professor Stanley Hall points out, children not in frequently
regard every deviation from the most painfully literal truth as
alike heinous, with no perspective or degrees of difference
between the most barefaced intended and unintended lies. In some
children this fear of telling an untruth becomes so neurotic that
to every statement, even to yes or no, a "perhaps" or "I think"
is added mentally, whispered, or aloud. One boy had a long period
of fear that, like Ananias and Sapphira, he might some moment
drop down dead for a chance and perhaps unconscious lie.[48] On
the other hand, an acted lie is felt to be much less harmful than
a spoken one; to point the wrong way when asked where some one is
gone is less objectionable than to speak wrongly, to nod is less
sinful than to say yes. Indeed, acted lies are for the most {117}
part easily gotten away with, whereas some mysterious baneful
energy seems to be attributed to the spoken untruth. That its
evil influence is looked upon as quite mechanical appears from
the palliatives used for it. Many American children are of
opinion that a lie may be reversed by putting the left hand on
the right shoulder and that even an oath may be neutralised or
taken in an opposite sense by raising the left instead of the
right hand.[49] Among children in New York "it was sufficient to
cross the fingers, elbows, or legs, though the act might not be
noticed by the companion accosted, and under such circumstances
no blame attached to a falsehood."[50] To think "I do not mean
it," or to attach to a statement a meaning quite different from
the current one, is a form of reservation which is repeatedly
found in children.[51] Nor are feelings and ideas of this kind
restricted to the young; they are fairly common among grown-up
people, and have even found expression in ethical doctrines.
They lie at the root of the Jesuit theory of mental reservations.
According to Thomas Aquinas, again, though it is wrong to tell a
lie for the purpose of delivering another from any danger
whatever, it is lawful "to hide the truth prudently under some
dissimulation, as Augustine says."[52] It is not uncommonly
argued that in defence of a secret we may not "lie," that is,
produce directly beliefs contrary to facts; but that we may
"turn a question aside," that is, produce indirectly, by
natural inference from our answer, a negatively false belief; or
that we may "throw the inquirer on a wrong scent," that is,
produce similarly a positively false belief.[53] This extreme
formalism may no doubt to some extent be traced to the influence
of early training. From the day we learned to speak, the duty of
telling the truth has been strenuously enjoined upon us, and the
word "lie" has been associated with sin of the {118} blackest
hue; whereas other forms of falsehood, being less frequent, less
obvious, and less easy to define, have also been less emphasised.
But after full allowance is made for this influence, the fact
still remains that a mystic efficacy is very commonly ascribed to
the spoken word. Even among ourselves many persons would not dare
to praise their health or fortune for fear lest some evil should
result from their speech; and among less civilised peoples much
greater significance is given to a word than among us. Herodotus,
after mentioning the extreme importance which the ancient
Persians attached to the duty of speaking the truth, adds that
they held it unlawful even "to talk of anything which it is
unlawful to do."[54] I think, then, we may assume that, if for
some reason or other, falsehood is stigmatised, the mysterious
tendency inherent in the word easily develops into an avenging
power which, as often happens in similar cases, is associated
with the activity of a god.
[Footnote 48: Stanley Hall, 'Children's Lies,' in _American
Journal of Psychology_, iii. 59 _sq._]
[Footnote 49: Stanley Hall, 'Children's Lies,' in _American
Journal of Psychology_, iii. 68 _sq._]
[Footnote 50: Bergen and Newell, 'Current Superstitions,' in
_Journal of American Folk-lore_, ii. 111.]
[Footnote 51: Stanley Hall, _loc. cit._ p. 68.]
[Footnote 52: Thomas Aquinas, _Summa theologica_, ii.-ii. 110.
3. 4.]
[Footnote 53: See Sidgwick, _Methods of Ethics_, p. 317.]
[Footnote 54: Herodotus, i. 139.]
The punishing power of a word is particularly conspicuous in the
case of an oath. But the evil attending perjury does not come
from the lie as such: it is in the first place a result of the
curse which constitutes the oath. An oath is essentially a
conditional self-imprecation, a curse by which a person calls
down upon himself some evil in the event of what he says not
being true. The efficacy of the oath is originally entirely
magical, it is due to the magic power inherent in the cursing
words. In order to charge them with supernatural energy various
methods are adopted. Sometimes the person who takes the oath puts
himself in contact with some object which represents the state
referred to in the oath, so that the oath may absorb, as it were,
its quality and communicate it to the perjurer. Thus the Kandhs
swear upon the lizard's skin, "whose scaliness they pray may be
their lot if forsworn," or upon the earth of an ant-hill, "like
which they desire that, if false, they may be reduced to
powder."[55] The Tunguses regard it as the most dreadful {119} of
all their oaths when an accused person is compelled to drink some
of the blood of a dog which, after its throat has been cut, is
impaled near a fire and burnt, or has its flesh scattered about
piece-meal, and to swear:--"I speak the truth, and that is as
true as it is that I drink this blood. If I lie, let me perish,
burn, or be dried up like this dog."[56] In other cases the
person who is to swear takes hold of a certain object and calls
it to inflict on him some injury if he perjure himself. The
Kandhs frequently take oath upon the skin of a tiger, "from which
animal destruction to the perjured is invoked."[57] The Angami
Nagas, when they swear to keep the peace, or to perform any
promise, "place the barrel of a gun, or a spear, between their
teeth, signifying by this ceremony that, if they do not act up to
their agreement, they are prepared to fall by either of the two
weapons."[58] The Chuvashes, again, put a piece of bread and a
little salt in the mouth and swear, "May I be in want of these,
if I say not true!" or "if I do not keep my word!"[59] Another
method of charging an oath with supernatural energy is to touch,
or to establish some kind of contact with, a holy object on the
occasion when the oath is taken. The Iowa have a mysterious iron
or stone, wrapped in seven skins, by which they make men swear to
speak the truth.[60] The people of Kesam, in the highlands of
Palembang, swear by an old sacred knife,[61] the Bataks of South
Tóba on their village idols,[62] the Ostyaks on the nose of a
bear, which is regarded by them as an animal endowed with
supernatural power.[63] Among the Tunguses a criminal may be
compelled to climb one {120} of their sacred mountains, repeating
as he mounts, "May I die if I am guilty," or, "May I lose my
children and my cattle," or, "I renounce for ever all success in
hunting and fishing if I am guilty."[64] In Tibetan law-courts,
when the great oath is taken, "it is done by the person placing a
holy scripture on his head, and sitting on the reeking hide of an
ox and eating part of the ox's heart."[65] Hindus swear on a copy
of the Sanskrit _haribans_, or with Ganges water in their hands,
or touch the legs of a Brâhmana in taking an oath.[66]
Muhammedans swear on the Koran, as Christians do on the Bible. In
Morocco an oath derives efficacy from contact with, or the
presence of, any lifeless object, animal, or person endowed with
_baraka_, or holiness, such as a saint-house or a mosque, corn or
wool, a flock of sheep or a horse, or a shereef. In mediæval
Christendom sacred relics were generally adopted as the most
effective means of adding security to oaths, and "so little
respect was felt for the simple oath that, ere long, the adjuncts
came to be looked upon as the essential feature, and the
imprecation itself to be divested of binding force without
them."[67]
[Footnote 55: Macpherson, _Memorials of Service in India_, p. 83.]
[Footnote 56: Georgi, _Russia_, iii. 86.]
[Footnote 57: Macpherson, _op. cit._ p. 83. _Cf._ Hose, 'Natives
of Borneo,' in _Jour. Anthr. Inst._ xxiii. 165 (Kayans).]
[Footnote 58: Butler, _Travels in Assam_, p. 154. Mac Mahon, _Far
Cathay_, p. 253. Prain, 'Angami Nagas,' in _Revue coloniale
internationale_, v. 490. _Cf._ Lewin, _Wild Races of
South-Eastern India_, pp. 193 (Toungtha), 244 _sq._ (Pankhos and
Bunjogees); St. John, 'Hill Tribes of North Aracan,' in _Jour.
Anthr. Inst._ ii. 242.]
[Footnote 59: Georgi, _op. cit._ i. 110.]
[Footnote 60: Hamilton, quoted by Dorsey, 'Siouan Cults,' in
_Ann. Rep. Bur. Ethn._ xi. 427.]
[Footnote 61: _Glimpses of the Eastern Archipelago_, p. 104.]
[Footnote 62: von Brenner, _Besuch bei den Kannibalen Sumatras_,
p. 213.]
[Footnote 63: Castrén, _Nordiska resor och forskningar_, i. 307,
309; iv. 123 _sq._ _Cf._ Ahlqvist, 'Unter Wogulen und Ostjaken,'
in _Acta Societatis Scientiarum Fennicæ_, xiv. 298.]
[Footnote 64: Georgi, _op. cit._ iii. 86.]
[Footnote 65: Waddell, _Buddhism of Tibet_, p. 569, n. 7.]
[Footnote 66: Grierson, _Bih[=a]r Peasant Life_, p. 401. Sleeman,
_Rambles and Recollections of an Indian Official_, ii. 116.]
[Footnote 67: Lea, _Superstition and Force_, p. 29. See also
Kaufmann, _Deutsche Geschichte_, ii. 297; Ellinger, _Das
Verhältniss der öffentlichen Meinung zu Wahrheit und Lüge im 10.
11. und 12. Jahrhundert_, pp. 30, 111.]
Finally, as an ordinary curse, so an oath is made efficacious by
bringing in the name of a supernatural being, to whom an appeal
is made. When the Comanches of Texas make a sacred pledge or
promise, "they call upon the great spirit as their father, and
the earth as their mother, to testify to the truth of their
asseverations."[68] Of the Chukchi we are told that "as often as
they would certify the truth of any thing by oath or solemn
protestations they take the sun for their guarantee and
security."[69] Among the Tunguses an accused person takes a knife
in his hand, brandishes it towards the sun, and says, "If I {121}
am guilty, may the sun send diseases into my bowels as mortal as
a stab with this knife would be!"[70] An Arab from the province
of Dukkâla in Morocco presses a dagger against his chest, saying,
"By this poison, may God thrust it into my heart if I did so or
so!" If a Masai is accused of having done something wrong, he
drinks some blood, which is given him by the spokesman, and says,
"If I have done this deed may God kill me"; and it is believed
that if he has committed the crime he dies, whereas no harm
befalls him if he is innocent.[71] Among the Tshi-speaking peoples
of the Gold Coast, "to make an oath binding on the person who
takes it, it is usual to give him something to eat or to drink
which in some way appertains to a deity, who is then invoked to
visit a breach of faith with punishment."[72] Among the Shekani
and Bakele people of Southern Guinea, when a covenant between
different tribes is about to be formed, their great spirit,
Mwetyi, "is always invoked as a witness, and is commissioned with
the duty of visiting vengeance upon the party who shall violate
the engagement."[73] It seems to be a common practice in certain
parts of Africa to swear by some fetish.[74] The Efatese, of the
New Hebrides, invoked punishment from the gods in their oaths.[75]
In Florida, of the Solomon Group, a man will deny an accusation by
some _tindalo_ (that is, the disembodied spirit of some man who
already in his lifetime was supposed to be endowed with
supernatural power), or by the ghostly frigate-bird, or by the
ghostly shark.[76] When an ancient Egyptian wished to give
assurance of his honesty and good faith, he called Thoth to
witness, the advocate in the heavenly court of justice, without
whose justification no soul could stand in the day of judgment.[77]
The Eranians swore by Mithra,[78] the Greeks by Zeus,[79] the {122}
Romans by Jupiter and Dius Fidius.[80] A god is more able than
ordinary mortals to master the processes of nature, and he may
also better know whether the sworn word be true or false.[81]
It is undoubtedly on account of their superior knowledge that
sun or moon or light gods are so frequently appealed to in oaths.
The Egyptian god Ra is a solar,[82] and Thoth a lunar[83] deity.
The Zoroastrian Mithra, who "has a thousand senses, and sees
every man that tells a lie,"[84] is closely connected with the
sun;[85] and Rashnu Razista, according to M. Darmesteter, is an
offshoot either of Mithra or Ahura Mazda himself.[86] Dius Fidius
seems originally to have been a spirit of the heaven, and a wielder
of the lightning, closely allied to the great Jupiter.[87] Zeus is
all-seeing, the infallible spy of both gods and men.[88] Now,
even though the oath has the form of an appeal to a god, it may
nevertheless be of a chiefly magic character, being an
imprecation rather than a prayer. The oaths which the Moors swear
by Allah are otherwise exactly similar in nature to those in
which he is not mentioned at all. But the more the belief in
magic was shaken, the more the spoken word was divested of that
mysterious power which had been attributed to it by minds too apt
to confound words with facts, the more prominent became the
religious element in the oath. The fulfilment of the
self-imprecation was made dependent upon the free will of the
deity appealed to, and was regarded as the punishment for an
offence committed by the perjurer against the god himself.[89]
[Footnote 68: Neighbors, in Schoolcraft, _Indian Tribes of the
United States_, i. 132.]
[Footnote 69: Georgi, _op. cit._ iii. 183.]
[Footnote 70: Georgi, _op. cit._ iii. 85 _sq._]
[Footnote 71: Hollis, _Masai_, p. 345.]
[Footnote 72: Ellis, _Tshi-speaking Peoples of the Gold Coast_,
p. 196.]
[Footnote 73: Wilson, _Western Africa_, p. 392.]
[Footnote 74: Schultze, _Der Fetischismus_, p. 111.]
[Footnote 75: Turner, _Samoa_, p. 334.]
[Footnote 76: Codrington, _op. cit._ p. 217.]
[Footnote 77: Tiele, _History of the Egyptian Religion_, p. 229.
Amélineau, _op. cit._ p. 251.]
[Footnote 78: _Yasts_, x.]
[Footnote 79: _Iliad_, iii. 276 _sqq._ Farnell, _Cults of the
Greek States_, i. 70.]
[Footnote 80: von Lasaulx, _Der Eid bei den Römern_, p. 9.]
[Footnote 81: _Cf._ James, _Expedition from Pittsburg to the
Rocky Mountains_, i. 267 (Omahas); Tylor, _Primitive Culture_,
ii. 231 (Ostyaks).]
[Footnote 82: Maspero, _Dawn of Civilization_, p. 87 _sq._
Wiedemann, _Religion of the Ancient Egyptians_, p. 14. Erman,
_Handbook of Egyptian Religion_, p. 10.]
[Footnote 83: Maspero, _op. cit._ p. 145. Erman, _op. cit._ p. 11.]
[Footnote 84: _Yasts_, x. 107.]
[Footnote 85: Darmesteter, in _Sacred Books of the East_, xxiii.
122, n. 4. Meyer, _Geschichte des Alterthums_, i. 541 _sq._
Geiger, _op. cit._ i. p. lvi.]
[Footnote 86: Darmesteter, in _Sacred Books of the East_, xxiii. 168.]
[Footnote 87: Fowler, _Roman Festivals_, p. 141.]
[Footnote 88: _Cf._ _Iliad_, iii. 277; Ovid, _Metamorphoses_, iv.
172; Darmesteter, _Essais orientaux_, p. 107; Usener,
_Götternamen_, p. 177 _sqq._]
[Footnote 89: Grotius says (_De jure belli et pacis_, ii. 13. 12)
that even he who swears by false gods is bound, "because, though
under false notions, he refers to the general idea of Godhead,
and therefore the true God will interpret it as a wrong to
himself if perjury be committed."]
{123} Owing to its invocation of supernatural sanction, perjury
is considered the most heinous of all acts of falsehood.[90] But
it has a tendency to make even the ordinary lie or breach of
faith a matter of religious concern. If a god is frequently
appealed to in oaths, a general hatred of lying and
unfaithfulness may become one of his attributes, as is suggested
by various facts quoted above. There is every reason to believe
that a god is not, in the first place, appealed to because he is
looked upon as a guardian of veracity and good faith, but that he
has come to be looked upon as a guardian of these duties because
he has been frequently appealed to in connection with them.
[Footnote 90: Among various peoples perjury is punished even by
custom or law. Thus among the Gaika tribe of the Kafirs a person
may be fined for taking a false oath in a law case (Brownlee, in
Maclean, _Compendium of Kafir Laws and Customs_, p. 124). In
Abyssinia a man convicted of perjury "would not only lose his
reputation, and be for ever incapacitated from being witness even
on the most trivial question, but he would likewise in all
probability be bound and severely fined, and might indeed think
himself fortunate if he got off with all his limbs in their
proper places, or without his hide being scored" (Parkyns, _Life
in Abyssinia_, ii. 258 _sq._). The laws of the Malays punish
perjury (Crawfurd, _History of the Indian Archipelago_, iii. 90).
In India, according to the Laws of Manu (viii. 219 _sq._), he who
broke an agreement after swearing to it was to be banished,
imprisoned, and fined. Mediæval law-books punished perjurers with
the loss of the right hand, by which the oath was sworn (Wilda,
_Das Strafrecht der Germanen_, p. 983 _sq._; Pollock and
Maitland, _History of English Law before the Time of Edward I._
ii. 541). In a Danish law of 1537 it is said that the perjurer
shall lose the two offending fingers so as to appease the wrath
of God (Stemann, _Den danske Retshistorie indtil Christian V.'s
Lov_, p. 645). In other cases, again, no civil punishment is
affixed to a false oath--for instance, among the Rejangs
(Marsden, _History of Sumatra_, p. 240) and Bataks of Sumatra
(_Glimpses of the Eastern Archipelago_, p. 86), the Ossetes
(Kovalewsky, _Coutume contemporaine_, p. 324), Persians (Polak,
_Persien_, ii. 83), and, as it seems, the ancient Hebrews (Keil,
_Manual of Biblical Archæology_, ii. 348; Greenstone, 'Perjury,'
in _Jewish Encyclopedia_, ix. 640), Greeks (Rohde, _Psyche_, p.
245, note), and Teutons in early times (Wilda, _op. cit._ p. 982;
Brunner, _Deutsche Rechtsgeschichte_, ii. 681). Cicero says (_De
legibus_, ii. 9) that "the divine punishment of perjury is
destruction, the human punishment infamy"; but though perjury
_per se_ was not punished in Rome, the law appears from very
early times to have contained provisions for punishing false
testimony (Hunter, _Roman Law_, p. 1063; see also Mommsen,
_Römisches Strafrecht_, p. 681). However, the fact that perjury
is not treated as a crime by no means implies that it is not
regarded as a sin. The punishment of it is left to the offended
deity (Marsden, _op. cit._ p. 219; _Glimpses of the Eastern
Archipelago_, p. 86; Crawfurd, _op. cit._ iii. 90 [Javanese]).]
It seems that sometimes the habit of oath-taking has, in another
respect also, made it prudential for men to speak the simple
truth in all circumstances. Sir W. H. Sleeman {124} observes that
among the woods and hills of India the cotton and other trees are
supposed by the natives to be occupied by deities who are vested
with a local superintendence over the affairs of a district, or
perhaps of a single village. "These," he says, "are always in the
view of the people, and every man knows that he is every moment
liable to be taken to their court, and to be made to invoke their
vengeance upon himself or those dear to him, if he has told a
falsehood in what he has stated, or tells one in what he is about
to state. Men so situated adhere habitually, and I may say
religiously, to the truth; and I have had before me hundreds of
cases in which a man's property, liberty, or life, has depended
upon his telling a lie, and he has refused to tell it to save
either."[91] On the other hand, there are peoples among whom a
person's word can hardly be trusted unless confirmed by an
oath.[92] And one of the arguments adduced by the Quakers against
the taking of oaths is that, if on any particular occasion a man
swear in addition to his yea or nay, in order to make it more
obligatory or convincing, its force becomes comparatively weak at
other times when it receives no such confirmation.[93]
[Footnote 91: Sleeman, _op. cit._ ii. 111 _sq._]
[Footnote 92: See, besides _supra_, Kingsley, _West African
Studies_, p. 414; Chanler, _Through Jungle and Desert_, p. 186
_sq._ (Wamsara).]
[Footnote 93: Gurney, _Views and Practices of the Society of
Friends_, p. 327.]
Modes of conduct which are recommended by prudence tend on that
account in various ways to be regarded as morally compulsory or
praiseworthy. This subject will be discussed in connection with
duties and virtues which are called "self-regarding," but in the
present place it is necessary to remind ourselves of the share
which early education has in making prudence a matter of moral
consideration. Few duties owe so much to the training of parents
and teachers as does veracity. Children easily resort to
falsehood, in self-defence or otherwise, and truthfulness is
therefore enjoined on them with particular emphasis.[94]
[Footnote 94: _Cf._ Priestley, in 'Essay III.' introductory to
Hartley's _Theory of the Human Mind_, p. xlix. _sq._]
{125} The moral ideas referring to truthfulness are, finally,
much influenced by the force of habit. Where lying is frequent it
is, other things being equal, less strenuously condemned, if
condemned at all, than in communities which are strictly
truthful. It is natural to speak the truth. Von Jhering's
suggestion that man was originally a liar, and that veracity is
the result of human progress,[95] is not consistent with facts.
Language was not invented to disguise the truth, but to express
it. As Hutcheson remarked long ago, "truth is the natural
production of the mind when it gets the capacity of communicating
it, dissimulation and disguise are plainly artificial effects of
design and reflection."[96] It may be doubted whether there are
any other mendacious creatures in the world than men.[97] It is
said that "lies are told, if not in speech yet in acts, by
dogs";[98] but the instances reported of canine deceitfulness[99]
are hardly conclusive. As a cautious writer observes, the
question is not whether there may be "objective deceitfulness" in
the dog's conduct, but whether the motive is deceit: and "the
deceitful intent is a piece, not of the observed fact, but of the
observer's inference."[100] Nor is the child, strictly speaking,
a born liar. M. Compayré even goes so far as to say that, if the
child has not been subjected to bad influences, or if a
discipline of repression and constraint has not driven him to
seek a refuge in dissimulation, he is usually frankness and
sincerity itself.[101] Montaigne remarked that the falsehood of a
child grows with its growth.[102] According to M. Perez, useful
dissimulations are practised by children already at the age of
two years, but generally it is only after they are three or four
years old that fear of being scolded or punished will lead {126}
them into falsehood.[103] We are even told that certain savages
are too stupid or too ignorant to tell lies. A Hindu gentleman of
the plains, in the valley of the Nerbudda, when asked what made
the uncultured people of the woods to the north and south so
truthful, replied, "They have not yet learned the value of a
lie."[104] But as we know how readily truthful savages become
liars when their social conditions change, we may conclude that
their veracity was due rather to absence of temptation than to
lack of intelligence. In a small community of savages living by
themselves, there is no need for lying, nor much opportunity to
practise it. There is little scope for those motives which most
commonly induce people to practise falsehood--fear and love of
gain, combined with a hope of success.[105] Harmony and sympathy
generally prevail between the members of the group, and deception
is hardly possible since secrets do not exist.
[Footnote 95: von Jhering, _Zweck im Recht_, ii. 606.]
[Footnote 96: Hutcheson, _System of Moral Philosophy_, ii. 28.
_Cf._ Reid, _op. cit._ vi. 24, p. 428 _sqq._; Dugald Stewart,
_op. cit._ ii. 333.]
[Footnote 97: _Cf._ Schopenhauer, _Essays_, p. 145.]
[Footnote 98: Spencer, _Principles of Ethics_, i. 405.]
[Footnote 99: Romanes, _Animal Intelligence_, pp. 443, 444, 451.]
[Footnote 100: Lloyd Morgan, _Animal Life and Intelligence_,
p. 400.]
[Footnote 101: Compayré, _L'évolution intellectuelle et morale de
l'enfant_, p. 309. See also Sully, _Studies of Childhood_, p. 263
_sq._]
[Footnote 102: Montaigne, _Essais_, i. 9 (_[OE]uvres_, p. 16).]
[Footnote 103: Perez, _First Three Years of Childhood_, pp. 87, 89.]
[Footnote 104: Sleeman, _op. cit._ ii. 110.]
[Footnote 105: _Cf._ Sarasin, _Forschungen auf Ceylon_, iii. 543
(Veddahs).]
The case is different when savages come into frequent contact
with foreigners. To deceive a stranger is easy, and no scruple is
made of doing so. On the contrary, as we have seen, he is
regarded as a proper object of deception, and this opinion is
only too often justified by his own behaviour. But when commonly
practised in relation to strangers, falsehood easily becomes a
habit which affects the general conduct of the man. Hamzé, the
teacher of the Druses, said, "When a man once gets into the way
of speaking falsely, it is to be apprehended that, in spite of
himself, and by the mere force of habit, he will get to speak
falsely towards the brethren"; hence it is advisable to speak the
truth at all times and before all men.[106] There is indeed
abundant evidence that intercourse with strangers, and especially
with people of a different race, has had a destructive influence
on savage veracity.
[Footnote 106: Churchill, _Mount Lebanon_, iii. 225 _sq._]
This has been noticed among many of the uncivilised tribes of
India. "Formerly," says Mr. Man, "a Sonthal, as a rule, {127}
disdained to tell a falsehood, but the influences of
civilisation, transfused through the contagious ethics of his
Bengali neighbours, have somewhat impaired his truthfulness. In
the last four or five years a great change for the worse has
become evident, although even now, as a people, they are glorious
exceptions to the prevailing idiosyncrasy of the lower class of
natives in Bengal. With the latter, speaking the truth has been
always an accident; with the Sonthal it was a characteristic
principle."[107] Indeed, the Santals in Singbhúm, who live much
to themselves, are still described by Colonel Dalton as "a very
simple-minded people, almost incapable of deception."[108] The
Tipperah, "where he is brought into contact with, or under the
influence of the Bengallee, easily acquires their worst vices and
superstitions, losing at the same time the leading characteristic
of the primitive man--the love of truth."[109] Other tribes, like
the Garos and Bhúmij, have likewise been partly contaminated by
their intercourse with Bengalis, and acquired from them a
propensity to lie, which, in former days, was altogether foreign
to them.[110] The Kakhyens are at the present time lazy,
thievish, and untrustworthy, "whether their character has been
deteriorated by knavish injustice on the part of Chinese traders,
or high-handed extortion and wrong on the part of Burmese."[111]
The Ladakhis are, in general, "frank, honest, and moral when not
corrupted by communication with the dissolute Kashmiris."[112] Of
the Pahárias, who according to an earlier authority would sooner
die than lie,[113] it is now reported that "those who have most
to do with them say they cannot rely on their word, and that they
not only lie without scruple, but are scarcely annoyed at being
detected."[114] The Todas, whilst they call falsehood one of the
worst vices and have a temple dedicated to Truth, seem nowadays
only too often to forget both the temple and its object;[115] and
we are told that the dissimulation they practise in their
dealings with Europeans has been brought about by the habit of
paying them for every insignificant item of information.[116]
According to an {128} Indian civil servant quoted by Mr. Spencer,
various other hill tribes, originally distinguished by their
veracity, have afterwards been rendered less veracious by contact
with the whites.[117]
[Footnote 107: Man, _Sonthalia_, p. 14. _Cf._ _ibid._ p. 20.]
[Footnote 108: Dalton, _Ethnology of Bengal_, _op. cit._ p. 217.]
[Footnote 109: Lewin, _Wild Races of South-Eastern India_, p. 216.]
[Footnote 110: Dalton, _op. cit._ pp. 68, 177.]
[Footnote 111: Anderson, _Mandalay to Momien_, p. 151.]
[Footnote 112: Moorcroft and Trebeck, _Travels in the Himalayan
Provinces of Hindustan_, i. 321.]
[Footnote 113: Shaw, quoted by Dalton, _op. cit._ p. 274.]
[Footnote 114: Cumming, _In the Himalayas_, p. 404 _sq._]
[Footnote 115: Harkness, _A Singular Aboriginal Race inhabiting
the Neilgherry Hills_, p. 18.]
[Footnote 116: Metz, _Tribes inhabiting the Neilgherry Hills_,
p. 13.]
[Footnote 117: Spencer, _Principles of Sociology_, ii. 234. See
also Hodgson, _Miscellaneous Essays_, i. 152. (Bódo and Dhimáls);
Dalton, _op. cit._ p. 206 (Múndas).]
Of the Andaman Islanders Mr. Man observes:--"It has been remarked
with regret by all interested in the race, that intercourse with
the alien population has, generally speaking, prejudicially
affected their morals; and that the candour, veracity, and
self-reliance they manifest in their savage and untutored state
are, when they become associated with foreigners, to a great
extent lost, and habits of untruthfulness, dependence, and sloth
engendered."[118] Riedel makes a similar remark with reference to
the natives of Ambon and Uliase.[119] Mr. Sommerville believes
that the natives of New Georgia, in the Solomon Islands, learned
their practice of cheating from European traders.[120]
[Footnote 118: Man, in _Jour. Anthr. Inst._ xii. 92.]
[Footnote 119: Riedel, _De sluik- en kroesharige rassen tusschen
Selebes en Papua_, p. 41.]
[Footnote 120: Sommerville, in _Jour. Anthr. Inst._ xxvi. 394.]
Among the Ostyaks increasing civilisation has proved injurious to
their ancient honesty, and those who live in the neighbourhood of
towns or large villages have become even more deceitful than the
colonists.[121] A similar change has taken place with other
tribes belonging to the Russian Empire, for instance the
Tunguses[122] and Kamchadales.[123]
[Footnote 121: Castrén, _op. cit._ ii. 121.]
[Footnote 122: Dall, _Alaska_, p. 518.]
[Footnote 123: Steller, _Beschreibung von dem Lande Kamtschatka_,
p. 285. Sarytchew, 'Voyage of Discovery to the North-East of
Siberia,' in _Collection of Modern and Contemporary Voyages_, v. 67.]
We hear the same story from America.[124] Among the Omahas
"formerly only two or three were notorious liars; but now, there
are about twenty who do not lie."[125] The old men of the Ojibwas
all agree in saying that before the white man came and resided
among them there was less lying than there is now.[126] The
Indians of Mexico, Lumholtz writes, "do not tell the truth unless
it suits them."[127] But with reference to some of them, the
Tarahumares, he adds that, where they have had little or nothing
to do with the whites, they are trustworthy, and profit is no
inducement to them, as they believe {129} that their gods would
be angry with them for charging an undue price.[128]
[Footnote 124: Domenech, _Seven Years Residence in the Great
Deserts of North America_, ii. 69. _Cf._ Hearne, _Journey to the
Northern Ocean_, pp. 307, 308, 310 (Chippewyans); Morgan, _League
of the Iroquois_, p. 335 _sq._]
[Footnote 125: Dorsey, 'Omaha Sociology' in _Ann. Rep. Bur.
Ethn._ iii. 370.]
[Footnote 126: Schoolcraft, _Indian Tribes of the United States_,
ii. 139.]
[Footnote 127: Lumholtz, _Unknown Mexico_, ii. 477.]
[Footnote 128: Lumholtz, _Unknown Mexico_, i. 244, 418.]
The deceitfulness of many African peoples is undoubtedly in some
degree a result of their intercourse with foreigners. In Sierra
Leone, says Winterbottom, the natives on the sea coast, who are
chiefly engaged in commerce, "are in general shrewd and artful,
sometimes malevolent and perfidious. Their long connection with
European slave traders has tutored them in the arts of
deceit."[129] The Yorubas, according to Burton, are eminently
dishonest only "in and around the cities."[130] Among the Kalunda
those who live near the great caravan roads and have had much to
do with foreign traders are suspicious and false.[131] And the
Hottentots, of whose truthfulness earlier writers spoke very
highly, are nowadays said to be addicted to lying.[132]
[Footnote 129: Winterbottom, _Native Africans in the
Neighbourhood of Sierra Leone_, i. 206.]
[Footnote 130: Burton, _Abeokuta_, i. 303.]
[Footnote 131: Pogge, _Im Reiche des Muata Jamwo_, p. 236.]
[Footnote 132: Fritsch, _Die Eingeborenen Süd-Afrika's_,
p. 307 _sq._]
It has also been noticed that mendacity is favoured among
children by much intercourse with strangers, when "first
impressions" are consciously made, as also by frequent change of
environment, or of school or residence, as such changes give rise
to a feeling that "new leaves" can be easily turned.[133]
[Footnote 133: Stanley Hall, in _American Journal of Psychology_,
iii. 70.]
When a social unit is composed of loosely connected sub-groups,
the intercourse between members of different sub-groups resembles
in many respects that between foreigners. Social incoherence is
thus apt to lead to deceitful habits, as was the case in the
Middle Ages. The same phenomenon is to be observed in the East;
perhaps also among the Desert Arabs and the Fuegians, who live in
small parties which only occasionally meet and soon again separate.
Another factor which has favoured deception is social
differentiation. The different classes of society have often
little sympathy for each other, their interests are not
infrequently conflicting, deceit is a means of procuring
advantages, and, for the inferior classes especially, a means of
self-protection. As Euripides observes, slaves are in {130} the
habit of concealing the truth.[134] In Eastern Africa, says
Livingstone, falsehood is a vice prevailing among the free, but
still more among the slaves; "one can scarcely induce a slave to
translate anything truly: he is so intent on thinking of what
will please."[135]
[Footnote 134: Euripides, _Ph[oe]nissæ_, 392. _Cf._ Burton,
_Arabian Nights_, i. 176, n. 1.]
[Footnote 135: Livingstone, _Expedition to the Zambesi_, p. 309.
See also Polack, _Manners and Customs of the New Zealanders_,
ii. 59.]
Hardly anything has been a greater inducement to falsehood than
oppression. Whilst the old Makololo were truthful, this is not
the case with their sons, "who, having been brought up among the
subjected tribes, have acquired some of the vices peculiar to a
menial and degraded race."[136] The Wanyoro, who are described as
"splendid liars," exercised deception chiefly to evade the
intolerable exactions of their own chiefs, whereas they are
fairly truthful in contact with Europeans who attempt to treat
them justly.[137] The duplicity and cunning of the Malagasy are
"the natural result of centuries of superstition, ignorance, and
submission to the rule of tyrannical despots, with whom the spy
system has always been a necessity."[138] In Morocco the
independent Jbâla, or mountaineers of the North, are more to be
trusted than the Arabs of the plains, who have long been
suffering from the extortions of rapacious officials. The
duplicity of Orientals is very largely due to their despotic form
of government.[139] In India, Mr. Percival observes, "despotism
in one form or other that has so long prevailed, and the
consequent oppression attendant thereon, must have rendered it
difficult to make way without fraud. Deception and arts of
cunning, under such circumstances, being the only means at the
command of the inferior portions of the community for gaining
their ends, and securing the plainest rights, they would resort
to them as the only way of avoiding certain ruin."[140] The
Chinese habit of lying has {131} been attributed partly to the
truckling fear of officers.[141] In China and many other parts of
the East, says Sir J. Bowring, "there is a fear of truth _as_
truth, lest its discovery should lead to consequences of which
the inquirer never dreams, but which are present to the mind of
the person under interrogation."[142]
[Footnote 136: Livingstone, _Expedition to the Zambesi_, p. 283.]
[Footnote 137: Johnston, _Uganda Protectorate_, ii. 591.]
[Footnote 138: Little, _Madagascar_, p. 72.]
[Footnote 139: Vámbéry, _Der Islam im neunzehnten Jahrhundert_,
p. 231.]
[Footnote 140: Percival, _Land of the Veda_, p. 288. _Cf._
Malcolm, _Memoir of Central India_, ii. 171; Hodgson,
_Miscellaneous Essays_, i. 152.]
[Footnote 141: Wells Williams, _The Middle Kingdom_, i. 835.]
[Footnote 142: Bowring, _Siam_, i. 105 _sq._]
* * * * *
The regard for truth displays itself not only in the condemnation
of falsehood, but in the idea that, under certain circumstances,
it is a person's duty to inform others of the truth, although
there is no deception in withholding it. This duty is limited by
utilitarian considerations, and it is less insisted on than the
duty of refraining from falsehood; positive commandments, as we
have seen, are generally less stringent than the corresponding
negative commandments.[143] But to disclose the truth for the
benefit of others, when it is attended with injurious
consequences for the person who discloses it, can hardly fail to
evoke moral approval, and may be deemed a merit of the highest
order.
[Footnote 143: _Supra_, i. 303 _sqq._]
The regard for truth goes a step further still. It may be
obligatory or praiseworthy not only to spread the knowledge of
truth, but to seek for it. The possession of knowledge, of some
kind or other, is universally respected. A Wolof proverb says,
"Not to know is bad, not to wish to know is worse."[144] In the
moral and religious systems of the East knowledge is one of the
chief pursuits of man. Confucius described virtue as consisting
of knowledge, magnanimity, and valour.[145] The ancients, he
says, "wishing to rectify their hearts, . . . first desired to be
sincere in their thoughts. Wishing to be sincere in their
thoughts, they first extended to the utmost their knowledge. Such
extension of knowledge lay in the investigation of things."[146]
Knowledge is to be pursued not for theoretical, but for {132}
moral purposes; the Master said, "It is not easy to find a man
who has learned for three years without coming to be good."[147]
The Hindus maintain that ignorance is the greatest of evils, and
that the sole and ultimate object of life should be to give and
receive instruction.[148] It is said in the Laws of Manu, "A man
is not therefore considered venerable because his head is gray;
him who, though young, has learned the Veda, the gods consider to
be venerable."[149] According to the Mahabharata, it is by
knowledge that a creature is liberated, by knowledge that he
becomes the Eternal, Imperceptible, and Undecaying.[150] Buddhism
regards sin as folly and delusion as the cause of crime;[151]
"the unwise man cannot discover the difference between that which
is evil and that which is good, as a child knows not the value of
a coin that is placed before him."[152] And the highest of all
gifts, the source of abiding salvation, is the knowledge of the
identity between the individual and God, in whom and by whom the
individual lives, and moves, and has his being.[153] According to
one of the Pahlavi texts, wisdom is better than wealth of any
kind;[154] through the power of wisdom it is possible to do every
duty and good work;[155] the religion of the Mazda-worshippers is
apprehended more fully by means of the most perfect wisdom, and
"even the struggle and warfare of Irân with foreigners, and the
smiting of Aharman and the demons it is possible to effect
through the power of wisdom."[156] A strong dash of
intellectualism is a prominent feature in the Rabbinic religion.
The highest virtue lies not only in the fulfilment but in the
study of the law. There is a special merit bound up in it that
will assist man both in this world and in the world to come; and
it is said that even a bastard who is learned in {133} the law is
more honoured than a high-priest who is not.[157] Among
Muhammedans, also, great respect is shown to men of
learning.[158] Knowledge, the Prophet said, "lights the way to
Heaven"--"He dies not who gives life to learning"--"With
knowledge the servant of God rises to the heights of goodness and
to a noble position"--"The ink of the scholar is more holy than
the blood of the martyr."[159]
[Footnote 144: Burton, _Wit and Wisdom from West Africa_, p. 6.]
[Footnote 145: _Chung Yung_, xx. 8. Douglas, _Confucianism and
Taouism_, p. 105.]
[Footnote 146: _Tâ Hsio_, 4.]
[Footnote 147: _Lun Yü_, viii. 12. _Cf._ Faber, _Digest of the
Doctrines of Confucius_, p. 60; de Lanessan, _La morale des
philosophes chinois_, p. 27.]
[Footnote 148: Percival, _Land of the Veda_, p. 263.]
[Footnote 149: _Laws of Manu_, ii. 156.]
[Footnote 150: Muir, _Original Sanskrit Texts_, v. 327.]
[Footnote 151: Rhys Davids, _Hibbert Lectures on the History of
Buddhism_, p. 208.]
[Footnote 152: Hardy, _Manual of Budhism_, p. 505.]
[Footnote 153: Rhys Davids, _op. cit._ p. 209.]
[Footnote 154: _Dinâ-î Maînôg-î Khirad_, xlvii. 6.]
[Footnote 155: _Ibid._ i. 54.]
[Footnote 156: _Ibid._ lvii. 15 _sq._]
[Footnote 157: Montefiore, _Hibbert Lectures on the Religion of
the Ancient Hebrews_, p. 495. Deutsch, _Literary Remains_, p. 35.]
[Footnote 158: Lane, _Manners and Customs of the Modern
Egyptians_, p. 301 _sq._]
[Footnote 159: Ameer Ali, _Ethics of Islâm_, pp. 47, 49.]
In Christianity the knowledge of truth became a necessary
requirement of salvation. But here, as in the East, the truth
which alone was valued was religious truth. All knowledge that
was not useful to salvation was, indeed, despised, and science
was regarded not only as valueless, but as sinful.[160] "The
wisdom of this world is foolishness with God."[161] If it
happened that any one gave himself to letters, or lifted up his
mind to the contemplation of the heavenly bodies, he passed
instantly for a magician or a heretic.[162] So also every mental
disposition which is essential to scientific research was for
centuries stigmatised as offensive to the Almighty; it was a sin
to doubt the opinions which had been instilled in childhood
before they had been examined, to notice any objection to those
opinions, to resolve to follow the light of evidence wherever it
might lead.[163] Yet we are told, even by highly respectable
writers, that the modern world owes its scientific spirit to the
extreme importance which Christianity {134} assigned to the
possession of truth, of _the_ truth.[164] According to M.
Réville, "it was the orthodox intolerance of the Church in the
Middle Ages which impressed on Christian society this disposition
to seek truth at any price, of which the modern scientific spirit
is only the application. The more importance the Church attached
to the profession of the truth--to the extent even of considering
involuntary error as in the highest degree a damnable crime--so
much the more the sentiment of the immense value of this truth
arose in the general persuasion, along with a resolve to conquer
it wherever it was felt not to be possessed. How otherwise," M.
Réville asks, "can we explain that science was not developed and
has not been pursued with constancy, except in the midst of
Christian societies?"[165] This statement is characteristic of
the common tendency to attribute to the influence of the
Christian religion almost anything good which may be found among
Christian nations. But, surely, the patient and impartial search
after hidden truth, for the sake of truth, which constitutes the
essence of scientific research, is not congenial to, but the very
opposite of, that ready acceptance of a revealed truth for the
sake of eternal salvation, which was insisted upon by the Church.
And what about that singular love of abstract knowledge which
flourished in ancient Athens, where Aristotle declared it a
sacred duty to prefer truth to everything else,[166] and Socrates
sacrificed his life on its altar? It seems that the modern
scientific spirit is only a revival and development of a mental
disposition which was for ages suppressed by the persecuting
tendencies of the Church and the extreme contempt for learning
displayed by the barbarian invaders and their descendants. Even
when they had settled in the countries which they had conquered,
the {135} Teutons would not permit their children to be
instructed in any science, for fear lest they should become
effeminate and averse from war;[167] and long afterwards it was
held that a nobleman ought not to know letters, and that to write
and read was a shame to gentry.[168]
[Footnote 160: Gibbon, _Decline and Fall of the Roman Empire_,
ii. 185. von Eicken, _Geschichte der mittelalterlichen
Weltanschauung_, pp. 128-130, 589 _sqq._]
[Footnote 161: _1 Corinthians_, iii. 19. _Cf._ Lactantius,
_Divines Institutiones_, iii. 3 (Migne, _Patrologiæ cursus_, vi.
354 _sqq._); St. Augustine, _De Civitate Dei_, viii. 10 (Migne,
xli. 234).]
[Footnote 162: Chapelain, _De la lecture des vieux romans_, p.
20. As late as the middle of the seventeenth century a powerful
party was rising in England who said that all learning was
unfavourable to religion, and that it was sufficient for everyone
to be acquainted with his mother-tongue alone (Twells, _Life of
Pocock_, p. 176). The Duke de Saint Simon, who in 1721 and 1722
was the French ambassador in Madrid, states (_Mémoires_, xxxv.
209) that in Spain science was a crime, and ignorance and
stupidity the chief virtues.]
[Footnote 163: Lecky, _Rationalism in Europe_, ii. 87 _sq._]
[Footnote 164: Ritchie, _Natural Rights_, p. 172. _Cf._ Kuenen,
_Hibbert Lectures on National Religions and Universal Religions_,
p. 290.]
[Footnote 165: Réville, _Prolegomena of the History of
Religions_, p. 226.]
[Footnote 166: Aristotle, _Ethica Nicomachea_, i. 6. 1. Prof.
Ritchie argues (_op. cit._ p. 172 _sq._) that a devotion to truth
as such was in the ancient world known only to a few
philosophers. Prof. Fowler is probably more correct in saying
(_Principles of Morals_, ii. 45, 220 _sq._; _Progressive
Morality_, p. 114) that it was more common amongst the Greeks
than amongst ourselves.]
[Footnote 167: Procopius, _De bello Gothorum_, i. 2. Robertson,
_History of the Reign of Charles V._ i. 234. Millingen, _op.
cit._ i. 22 _sq._ n. [dagger]]
[Footnote 168: Alain Chartier, quoted by Sainte-Palaye, _op.
cit._ ii. 104. See also De la Nouë, _Discours politiques et
militaires_, p. 238; Lyttleton, _Life of Henry II._ ii. 246 _sq._
The ignorance of the mediæval clergy has been somewhat
exaggerated by Robertson (_op. cit._ pp. 21, 22, 278 _sq._). Even
in the dark ages it was not a very uncommon thing for the clergy
to be able to read and write (Maitland, _The Dark Ages_, p. 16
_sqq._).]
The regard for knowledge springs in the first instance from the
love of it. As Aristotle said, "all men are by nature desirous of
knowledge."[169] But this feeling is not equally strong, nor
equally deep, in all. The curiosity of savages, however great it
often may be,[170] has chiefly reference to objects or events
which immediately concern their welfare or appear to them
alarming, or to trifles which attract attention on account of
their novelty. If their curiosity were more penetrating, they
would no longer remain savages; an extended desire of knowledge
leads to civilisation. But curiosity or love of knowledge,
whether in savage or civilised men, is not resolvable merely into
views of utility; as Dr. Brown observed, we feel it without
reflecting on the pleasure which we are to enjoy or the pain
which we are to suffer.[171] When highly developed, it drives men
to scientific investigations even though no practical benefits
are expected from the results. This devotion to truth for its own
sake, pure and disinterested as it is, has a singular tendency to
excite regard and admiration in everyone who has come under its
influence. From the utilitarian point of view it has been
defended on {136} the ground that, on the whole, every truth is
in the long run useful and every error harmful, and that we can
never exactly tell in advance what benefits may accrue even from
a knowledge which is apparently fruitless. But it seems that our
love of truth is somewhat apt to mislead our moral judgment. When
duly reflecting on the matter, we cannot help making a moral
distinction between him who pursues his studies merely from an
instinctive craving for knowledge, and him who devotes his life
to the search of truth from a conviction that he may thereby
promote human welfare.
[Footnote 169: Aristotle, _Metaphysica_, i. 1. 1, p. 980. _Cf._
Cicero, _De officiis_, i. 4.]
[Footnote 170: Murdoch, 'Ethnological Results of the Point Barrow
Expedition,' in _Ann. Rep. Bur. Ethn._ ix. 42 (Eskimo).
Krasheninnikoff, _History of Kamschatka_, p. 177. Anderson,
_Mandalay to Momien_, p. 151 (Kakhyens). Foreman, _Philippine
Islands_, p. 188 (Tagálog natives of the North). Bock, _Head
Hunters of Borneo_, p. 209 (Dyaks). Forbes, _A Naturalist's
Wanderings in the Eastern Archipelago_, p. 320 (natives of
Timor-laut). Dieffenbach, _Travels in New Zealand_, ii. 108.]
[Footnote 171: Dugald Stewart, _op. cit._ ii. 336. Brown,
_Lectures on the Philosophy of the Human Mind_, lec. 67, p. 451.]
CHAPTER XXXII
THE RESPECT FOR OTHER MEN'S HONOUR AND SELF-REGARDING
PRIDE--POLITENESS
THERE are many acts, forbearances, and omissions, the
offensiveness of which mainly or exclusively springs from men's
desire to be respected by their fellow-men and their dislike of
being looked down upon. Foremost among these are attacks upon
people's honour and good name. A man's honour may be defined as
the moral worth he possesses in the eyes of the society of which
he is a member, and it behoves other persons to acknowledge this
worth and, especially, not to detract from it by imputing to him,
on insufficient grounds, such behaviour as is generally
considered degrading.
The censure to which he is subject or the contempt in which he
is held may no doubt affect his welfare in various ways, but it
is chiefly painful as a violation of his personal dignity. Hence
the duty of respecting a man's honour is on the whole contained
in the more comprehensive obligation of showing deference, in
words and deeds, for his feeling of self-regarding pride.
This feeling, or at least the germ of it, is found already in
some of the lower animals. Among "high-life" dogs, says Professor
Romanes, "wounded sensibilities and loss of esteem are capable of
producing much keener suffering than is mere physical pain." A
reproachful word or look from any of his friends made a {138}
Skye terrier miserable for a whole day; and another terrier, who
when in good humour used to perform various tricks, was never so
pleased as when his joke was duly appreciated, whereas "nothing
displeased him so much as being laughed at when he did not intend
to be ridiculous."[1] Monkeys also, according to Dr. Brehm, are
"very sensitive to every kind of treatment they may receive, to
love and dislike, to encouraging praise and chilling blame, to
pleasant flattery and wounding ridicule, to caresses and
chastisement."[2]
[Footnote 1: Romanes, _Animal Intelligence_, pp. 439, 444.]
[Footnote 2: Brehm, _From North Pole to Equator_, p. 299. _Cf._
_ibid._ pp. 304-306, Brehm, _Thierleben_, i. 75, 157; Schultze,
_Vergleichende Seelenkunde_, i. pt. i. 110; Perty, _Das
Seelenleben der Thiere_, p. 66.]
Among the savage races of men, as among civilised peoples,
self-regarding pride is universal, and in many of them it is a
very conspicuous trait of character.[3] The Veddah of Ceylon,
says Mr. Nevill, "is proud in the extreme, and considers himself
no man's inferior. Hence he is keenly sensitive to ridicule,
contempt, and even patronage. There is nothing he dreads more
than being laughed at as a savage, because he dislikes clothes
and cultivation."[4] Australian aborigines are described as
"extravagantly proud,"[5] as "vain and fond of approbation."[6]
In Fiji "anything like a slight deeply offends a native, and is
not soon forgotten."[7] The Negroes of Sierra Leone "possess a
great share of pride, and are easily affected by an insult: they
cannot hear even a harsh expression, or a raised tone of voice,
without shewing that {139} they feel it."[8] The Araucanians,
inhabiting parts of Chili, "are naturally fond of honourable
distinction, and there is nothing they can endure with less
patience than contempt or inattention."[9] The North American
Indians, says Perrot, "ont généralement touts beaucoup de vaine
gloire dans leurs actions bonnes ou mauvaises. . . . L'ambition
est en un mot une des plus fortes passions qui les anime."[10]
The Indian of British Columbia, for instance, "watches that he
may receive his proper share of honour at festivals; he cannot
endure to be ridiculed for even the slightest mistake; he
carefully guards all his actions, and looks for due honour to be
paid to him by friends, strangers, and subordinates. This
peculiarity appears most clearly in great festivals."[11] Thus,
in numerous instances, "persons who have been hoarding up
property for ten, fifteen, or twenty years (at the same time
almost starving themselves for want of clothing), have given it
all away to make a show for a few hours, and to be thought of
consequence."[12] Speaking of the Eskimo about Behring Strait,
Mr. Nelson observes, "As with all savages, the Eskimo are
extremely sensitive to ridicule and are very quick to take
offence at real or seeming slights."[13] Among the Atkha Aleuts
it has happened that men have committed suicide from
disappointment at the failure of an undertaking, fearing that
they would become the laughing-stock of the village.[14] Among
many other savages shame or wounded pride is not uncommonly a
cause of suicide.[15] The Hos of Chota Nagpore have a saying that
for a wife who has been reproved by her husband {140}"nothing
remains but the water at the bottom of the well";[16] and in New
Zealand native women sometimes killed themselves because they had
been rebuked for negligence in cooking or for want of care
towards a child.[17]
[Footnote 3: Dieffenbach, _Travels in New Zealand_, ii. 107;
Colenso, _Maori Races of New Zealand_, p. 56. Crawfurd, _History
of the Indian Archipelago_, i. 54. Raffles, _History of Java_, i.
249. St. John, _Life in the Forests of the Far East_, ii. 323
(Malays of Sarawak). Man, 'Aboriginal Inhabitants of the Andaman
Islands,' in _Jour. Anthr. Inst._ xii. 94. Stewart, 'Notes on
Northern Cachar,' in _Jour. Asiatic Soc. Bengal_, xxiv. 609
(Nagas). Bergmann, _Nomadische Streifereien unter den Kalmüken_,
ii. 290, 295, 296, 312. Högström, _Beskrifning öfver de til
Sveriges Krona lydande Lapmarker_, p. 152 (Lapps). Dall,
_Alaska_, p. 392 _sq._ (Aleuts). Brett, _Indian Tribes of
Guiana_, p. 103.]
[Footnote 4: Nevill, 'Vaeddas of Ceylon,' in _Taprobanian_, i.
192. _Cf._ Sarasin, _Ergebnisse naturwissenschaftlicher
Forschungen auf Ceylon_, iii. 537.]
[Footnote 5: Hale, _U.S. Exploring Expedition. Vol. VI.
Ethnography and Philology_, p. 109.]
[Footnote 6: Mathew, in Curr, _The Australian Race_, iii. 155.]
[Footnote 7: Williams and Calvert, _Fiji_, p. 105. _Cf._ _ibid._
p. 103 _sq._]
[Footnote 8: Winterbottom, _Native Africans in the Neighbourhood
of Sierra Leone_, i. 211.]
[Footnote 9: Molina, _History of Chili_, ii. 113.]
[Footnote 10: Perrot, _Memoire sur les m[oe]urs, coustumes et
relligion des sauvages de l'Amerique septentrionale_, p. 76.
_Cf._ Buchanan, _Sketches of the History, Manners, and Customs of
the North American Indians_, p. 165; Matthews, _Ethnography and
Philology of the Hidatsa Indians_, p. 41.]
[Footnote 11: Boas, in _Fifth Report on the North-Western Tribes
of Canada_, p. 19.]
[Footnote 12: Duncan, quoted by Mayne, _Four Years in British
Columbia_, p. 295.]
[Footnote 13: Nelson, 'Eskimo about Bering Strait,' in _Ann. Rep.
Bur. Ethn._ xviii. 300.]
[Footnote 14: Yakof, quoted by Petroff, _Report on Alaska_,
p. 158. _Cf._ Dall, _op. cit._ p. 391 (Aleuts).]
[Footnote 15: See _infra_, on Suicide; Lasch, 'Besitzen die
Naturvölker ein persönliches Ehrgefühl?' in _Zeitschr. f.
Socialwissenschaft_, iii. 837 _sqq._]
[Footnote 16: Bradley-Birt, _Chota Nagpore_, p. 104. _Cf._
Dalton, _Descriptive Ethnology of Bengal_, p. 206.]
[Footnote 17: Colenso, _op. cit._ p. 57.]
Like other injuries, an insult not only affects the feelings of
the victim, but arouses sympathetic resentment in outsiders, and
is consequently disapproved of as wrong. Among the Maoris, if
anybody wantonly tried to hurt another's feelings, it was
immediately repressed, and "such a person was spoken of as having
had no parents, or, as having been born (laid) by a bird."[18] In
the Malay Archipelago, "among some of the tribes, abusive
language cannot with impunity be used even to a slave. Blows are
still more intolerable, and considered such grievous affronts,
that, by law, the person who receives them is considered
justified in putting the offender to death."[19] The natives of
the Tonga Islands hold no bad moral habit to be more "ridiculous,
depraved, and unjust, than publishing the faults of one's
acquaintances and friends . . . . ; and as to downright calumny
or false accusation, it appears to them more horrible than
deliberate murder does to us: for it is better, they think, to
assassinate a man's person than to attack his reputation."[20]
According to the customary laws of the Fantis in West Africa,
"where a person has been found guilty of using slanderous words,
he is bound to retract his words publicly, in addition to paying
a small fine by way of compensation to the aggrieved party. Words
imputing witchcraft, adultery, immoral conduct, crime, and all
words which sound to the disreputation of a person of whom they
are spoken are actionable."[21]
[Footnote 18: _Ibid._ p. 53.]
[Footnote 19: Crawfurd, _op. cit._ iii. 119 _sq._]
[Footnote 20: Mariner, _Natives of the Tonga Islands_, ii. 163 _sq._]
[Footnote 21: Sarbah, _Fanti Customary Laws_, p. 94.]
Among the Aztecs of ancient Mexico he who wilfully calumniated
another, thereby seriously injuring his {141} reputation, was
condemned to have his lips cut off, and sometimes his ears also;
whilst in Tezcuco the slanderer suffered death.[22] In the
Chinese penal code a special book is provided for the prevention
and punishment of opprobrious and insulting language, as "having
naturally a tendency to produce quarrels and affrays."[23] Among
Arabs all insulting expressions have their respective fines
ascertained in the _[k.]ady_'s court.[24] It is said in the
Talmud:--"Let the honour of thy neighbour be to thee like thine
own. Rather be thrown into a fiery furnace than bring any one to
public shame."[25]
[Footnote 22: Bancroft, _Native Races of the Pacific States_,
ii. 463.]
[Footnote 23: _Ta Tsing Leu Lee_, p. 354 n.*]
[Footnote 24: Burckhardt, _Notes on the Bedouins and Wahábys_,
p. 70 _sq._]
[Footnote 25: Deutsch, _Literary Remains_, p. 57.]
The Roman Law of the Twelve Tables contained provisions against
libellers,[26] and throughout the whole history of Roman law an
attack upon honour or reputation was deemed a serious crime.[27]
As for wrongful prosecution, which may be regarded as an
aggravated form of defamation, the law of the later Empire
required that any one bringing a criminal charge should bind
himself to suffer in case of failure the penalty that he had
endeavoured to call down upon his adversary.[28] Among Teutonic
peoples defamatory words and libelling were already at an early
date punished with a fine.[29] The Salic Law decrees that a
person who calls a freeborn man a "fox" or a "hare" or a "dirty
fellow," or says that he has thrown away his shield, must pay him
three solidi;[30] whilst, according to one text of the same law,
it cost 188 solidi (or nearly as much as was paid for the murder
of a Frankish freeman)[31] to call a freeborn woman a witch or a
harlot, in case the truth of the charge could not be proved.[32]
{142} The oldest English laws exacted _bót_ and _wíte_ from
persons who attacked others with abusive words.[33] In the
thirteenth century, in almost every action before an English
local court, the plaintiff claimed compensation not only for the
"damage," but also for the "shame" which had been done him.[34]
We further find that regular actions for defamation were common
in the local courts; whereas in later days the ecclesiastical
procedure against defamatory speech seems to have been regarded
as the usual, if not the only, engine which could be brought to
bear upon cases of libel and slander.[35] In England, as in Rome,
there was a strong feeling that men should not make charges which
they could not prove: before the Conquest a person might lose his
tongue, or have to redeem it with his full _wer_, if he brought a
false and scandalous accusation; and under Edward I. a statute
decreed that if the appellee was acquitted his accuser should lie
in prison for a year and pay damages by way of recompense for the
imprisonment and infamy which he had brought upon the innocent.[36]
[Footnote 26: _Lex Duodecim Tabularum_, viii. 1.]
[Footnote 27: _Digesta_, xlvii. 10. 15. 25. _Codex Justinianus_,
ix. 36. Hunter, _Exposition of Roman Law_, p. 1069 _sq._ Mommsen,
_Römisches Strafrecht_, p. 794 _sq._]
[Footnote 28: Günther, _Die Idee der Wiedervergeltung_, i. 141
_sqq._ Mommsen, _op. cit._ p. 496 _sq._]
[Footnote 29: Wilda, _Strafrecht der Germanen_, p. 776 _sqq._
Nordström, _Bidrag till den svenska samhälls-författningens
historia_, ii. 293 _sqq._ Stemann, _Den danske Retshistorie
indtil Christian V.'s Lov_, p. 686 _sq._ Brunner, _Deutsche
Rechtsgeschichte_, ii. 672 _sqq._]
[Footnote 30: _Lex Salica_, xxx. 4, 5, 2; Hessel's edition, col.
181 _sqq._]
[Footnote 31: _Ibid._ xv. col. 91 _sqq._]
[Footnote 32: _Ibid._ lxvii. 2, col. 403.]
[Footnote 33: _Laws of Hlothhaere and Eadric_, 11.]
[Footnote 34: Pollock and Maitland, _History of English Law till
the Time of Edward I._ ii. 537.]
[Footnote 35: _Ibid._ ii. 538. Stephen, _History of the Criminal
Law of England_, ii. 409.]
[Footnote 36: Pollock and Maitland, _op. cit._ ii. 539.]
The condemnation of an insult is greatly influenced by the
_status_ of, or the relations between, the parties concerned.
Among the Goajiro Indians of Colombia a poor man may be insulted
with impunity, when the same treatment to a rich man would cause
certain bloodshed.[37] In Nias an affront is punished with a
fine, which varies according to the rank of the parties.[38] The
Chinese penal code lays down that a person who is guilty of
addressing abusive language to his or her father or mother, or
father's parents, or a wife who rails at her husband's parents or
grandparents, shall be strangled;[39] and the same punishment is
prescribed for a slave who abuses his master.[40] {143} According
to the Laws of Manu, a Kshatriya shall be fined one hundred
_panas_ for defaming a Brâhmana, a Vaisya shall be fined one
hundred and fifty or two hundred _panas_, and a Sûdra shall
suffer corporal punishment; whereas a Brâhmana shall pay only
fifty _panas_ for defaming a Kshatriya, twenty-five for defaming
a Vaisya, and twelve for defaming a Sûdra.[41] In ancient
Teutonic law the fines for insulting behaviour were graduated
according to the rank of the person offended.[42] The
starting-point of the Roman law was that an _injuria_--which was
pre-eminently an affront to the dignity of the person--could not
be done to a slave as such, only to the master through the medium
of his slave;[43] and even in later times, in the case of
trifling injuries, such as mere verbal insults, the master had no
action, unless by leave of the Praetor, or unless the insult were
meant for the master himself.[44] These and similar variations
spring from the same causes as do corresponding variations in the
case of other injuries dealt with above. But there are also
special reasons why social superiority or inferiority influences
moral opinions concerning offences against persons self-regarding
pride. The respect due to a man is closely connected with his
station, and in the case of defamation the injury suffered by the
loss of honour or reputation is naturally proportionate to the
esteem in which the offended party is held. At the same time the
harmfulness of an insult also depends upon the reputation of the
person who offers it. According to the Gotlands Lag, one of the
ancient provincial laws of Sweden, a slave can not only be
insulted with impunity, but has himself to pay no fine for
insulting another person[45]--obviously because he was too
degraded a being to be able to detract from anybody's honour or
good name.
[Footnote 37: Simons, 'Exploration of the Goajira Peninsula,' in
_Proceed. Roy. Geo. Soc._ N.S. vii. 786.]
[Footnote 38: von Rosenberg, _Der malayische Archipel_, p. 167.]
[Footnote 39: _Ta Tsing Leu Lee_, sec. cccxxix. p. 357.]
[Footnote 40: _Ibid._ sec. cccxxvii. p. 356.]
[Footnote 41: _Laws of Manu_, viii. 267 _sq._ _Cf._ _Gautama_,
xii. 8 _sqq._ It is also said that "a once-born man (a Sûdra),
who insults a twice-born man with gross invective, shall have his
tongue cut out; for he is of low origin" (_ibid._ viii. 270. See
also _Institutes of Vishnu_, v. 23; _Gautama_, xii. 1;
_Âpastamba_, ii. 10. 27. 14).]
[Footnote 42: Keyser, _Efterladte Skrifter_, ii. pt. i. 295.]
[Footnote 43: Hunter, _Exposition of Roman Law_, p. 164. Mommsen,
_Römisches Strafrecht_, p. 786, n. 3.]
[Footnote 44: _Digesta_, xlvii. 10. 15. 35. Hunter, _op. cit._
p. 165.]
[Footnote 45: _Gotlands-Lagen_, i. 19. 37.]
{144} The condemnation of such conduct as is offensive to other
persons' self-regarding pride includes condemnation of pride
itself, when displayed in an excessive degree; whereas the
opposite disposition--modesty--which implies regard for other
people's "self-feeling," is praised as a virtue. The Fijians say
of a boasting person, "You are like the _kaka_ (parrot); you only
speak to shout your own name."[46] On the other hand, among the
Tonga Islanders "a modest opinion of oneself is esteemed a great
virtue, and is also put in practice."[47] Confucius taught that
humility belongs to the characteristics of a superior man.[48]
Such a man, he said, is modest in his speech, though he exceeds
in his actions;[49] he has dignified ease without pride, whereas
the mean man has pride without a dignified ease;[50] he prefers
the concealment of his virtue, when it daily becomes more
illustrious, whereas the mean man seeks notoriety when he daily
goes more and more to ruin.[51] So also humility has a
distinguished place in the teachings of Lao-tsze:--"I have three
precious things which I hold fast and prize, namely, compassion,
economy, and humility"; "He who knows the glory, and at the same
time keeps to shame, will be the whole world's valley . . . ,
eternal virtue will fill him, and he will return home to
Taou."[52] In the Book of the Dead the soul of the ancient
Egyptian pleads, "I am not swollen with pride."[53] According to
Zoroastrianism, the sin of pride has been created by Ahriman.[54]
Overbearingness was censured in ancient Scandinavia,[55]
Greece,[56] and Rome. During our prosperity, says Cicero, "we
ought with great care to {145} avoid pride and arrogance."[57]
The Hebrew prophets condemned not only pride but eminence,
because an eminent man is apt to be proud.[58] We read in the
Talmud:--"He who humiliates himself will be lifted up; he who
raises himself up will be humiliated. Whosoever runs after
greatness, greatness runs away from him; he who runs from
greatness, greatness follows him."[59] Christianity enjoined
humility as a cardinal duty in every man.[60] In the Koran it is
said, "God loves not him who is proud, and boastful."[61] Pride
has thus come to be stigmatised not only as a vice, but as a sin
of great magnitude. One reason for this is that it is regarded as
even more offensive to the "self-feeling" of a great god or the
Supreme Being than it is to that of a man. But pride must also
appear as irreligious arrogance to those who maintain that man is
by nature altogether corrupt, and that everything good in him is
a gift of God.[62]
[Footnote 46: Williams and Calvert, _op. cit._ p. 107.]
[Footnote 47: Mariner, _op. cit._ ii. 164.]
[Footnote 48: _Lun Yü_, v. 15. _Chung Yung_, xxvii. 7.]
[Footnote 49: _Lun Yü_, xiv. 29.]
[Footnote 50: _Ibid._ xiii. 26. _Cf._ _ibid._ xx. 2. 1.]
[Footnote 51: _Chung Yung_, xxxiii. 1.]
[Footnote 52: Douglas, _Confucianism and Taouism_, p. 194 _sq._
_Tâo Teh King_, xxviii. 1.]
[Footnote 53: _Book of the Dead_, ch. 125, p. 216. _Cf._
Amélineau, _Essai sur l'évolution des idées morales dans l'Égypt
Ancienne_, p. 353.]
[Footnote 54: _Vendîdâd_, i. 11.]
[Footnote 55: Maurer, _Die Bekehrung des Norwegischen Stammes
zum Christenthume_, ii. 150.]
[Footnote 56: Schmidt, _Die Ethik der alten Griechen_, i. 253.
Hermann, _Lehrbuch der Griechischen Antiquitäten_, ii. pt. i. 34
_sq._ Blümner, _Ueber die Idee des Schicksals in den Tragödien
des Aischylos_, p. 131.]
[Footnote 57: Cicero, _De officiis_, i. 26.]
[Footnote 58: _Cf._ Kuenen, _Religion of Israel_, i. 62
_sq._]
[Footnote 59: Deutsch, _Literary Remains_, p. 58.]
[Footnote 60: _St. Matthew_, v. 11, 12, 39; vi. 25, 26, 30
_sqq._; xviii. 4; &c.]
[Footnote 61: _Koran_, iv. 40. _Cf._ Ameer Ali, _Ethics of
Islâm_, p. 44.]
[Footnote 62: Manzoni, _Osservazioni sulla morale cattolica_, p.
182 _sqq._]
At the same time, whilst pride is held blamable, humility may
also go too far to be approved of, and may even be an object of
censure. In early ethics, as we have noticed above, revenge is
enjoined as a duty and forgiveness of enemies is despised; and
this is the case not only among savages.[63] The device of
Chivalry was, "It is better to die than to be avenged by
shame";[64] and side by side with the nominal acceptance of the
Christian doctrine of absolute placability the idea still
prevails, in many European countries, that an assault upon honour
shall be followed by a challenge to mortal combat. Too great
humility is regarded as a sign of weakness, cowardice, hypocrisy,
or a defective sense of honour. We are not allowed to be
indifferent to the estimation in which we are held by our
neighbours. Such indifference springs either from a feeble moral
constitution and absence of moral shame, or from {146} a
depreciation of other people's opinions in comparison with our
own, and this is offensive to their _amour-propre_. Outward
humility may thus suggest inward pride and appear arrogant.
[Footnote 63: _Supra_, i. 73 _sq._]
[Footnote 64: Laurent, _Études sur l'histoire de l'Humanité_,
vii. 184.]
A person's "self-feeling" may be violated in innumerable ways, by
words and deeds. Almost any deviation from what is usual may
arouse a suspicion of arrogance. This largely accounts for the
fact mentioned in a previous chapter that habits have a tendency
to become true customs, that is, rules of duty. Transgressions of
the established forms of social intercourse are particularly apt
to be offensive to people's self-regarding pride. Many of these
forms originated in a desire to please, but by becoming habitual
they at the same time became obligatory. Politeness is a duty
rather than a virtue.
There is probably no people on earth which does not recognise
some rules of politeness. Many savages are conspicuous for their
civility.[65] It has been observed that Christian missionaries
working among uncivilised races often are in manners much
inferior to those they are teaching, and thus lower the native
standard of refinement.[66] The Samoans, we are told, "are a
nation of gentlemen," and contrast most favourably with the
generality of Europeans who come amongst them.[67] On their first
intercourse with Europeans, the Maoris "always manifest a degree
of politeness which would do honour to a more civilised people";
but by continued intercourse they lose a great part of this
characteristic.[68] Among the Fijians "the rules of politeness
are minute, and receive scrupulous attention. They affect the
language, and are seen in forms of salutation, in attention to
strangers, at meals, in dress, and, indeed, influence their
manners in-doors and {147} out. None but the very lowest are
ill-behaved, and their confusion on committing themselves shows
that they are not impudently so."[69] The Malagasy "are a very
polite people, and look with contempt upon those who neglect the
ordinary usages and salutations";[70] "even the most ragged and
tattered slave possesses a natural dignity and ease of manner,
which contrasts favourably with the rude conduct and boorish
manners of the lower class at home."[71] Of the Point Barrow
Eskimo Mr. Murdoch observes that "many of them show a grace of
manner and a natural delicacy and politeness which is quite
surprising"; and he mentions the instance of a young Eskimo being
so polite in conversing with an American officer that "he would
take pains to mispronounce his words in the same way as the
latter did, so as not to hurt his feelings by correcting him
bluntly."[72] The forms of Kafir politeness "are very strictly
adhered to, and are many."[73] Of the Negroes of Fida Bosman
wrote, "They are so civil to each other and the inferior so
respectful to the superior, that at first I was very much
surprised at it."[74] Monrad found the Negroes of Accra surpass
many civilised people in politeness.[75] So also in Morocco even
country-folks are much more civil in their general behaviour than
the large majority of Europeans. "The conversations of the
Arabs," says d'Arvieux, "are full of civilities; one never hears
anything there that they think rude and unbecoming."[76]
Politeness is a characteristic of all the great nations of the
East. The Chinese have brought the practice of it "to a pitch of
perfection which is not only unknown in Western lands, but,
previous to experience, is unthought of and almost unimaginable.
The rules of ceremony, we are reminded in the Classics, are three
{148} hundred, and the rules of behaviour three thousand."[77] In
Europe courtesy was recommended as the most amiable of knightly
qualities; and from "the wild and overstrained courtesies of
Chivalry" has been derived our present system of manners.[78]
[Footnote 65: Waitz-Gerland, _Anthropologie der Naturvölker_, vi.
143 _sqq._ (Polynesians). Macdonald, _Oceania_, p. 195 (Efatese).
Cranz, _History of Greenland_, i. 157. MacGregor, 'Lagos,
Abeokuta and the Alake,' in _Jour. African Soc._ July, 1904,
p. 466 (Yorubas).]
[Footnote 66: Brenchley, _Jottings during the Cruise of H.M.S.
'Curaçoa' among the South Sea Islands_, p. 349.]
[Footnote 67: Hood, _Cruise in H.M.S. 'Fawn' in the Western
Pacific_, p. 59 _sq._]
[Footnote 68: Dieffenbach, _op. cit._ ii. 108 _sqq._ See also
Colenso, _op. cit._ p. 53 _sqq._]
[Footnote 69: Williams and Calvert, _op. cit._ p. 129. _Cf._
_ibid._ pp. 128, 131 _sq._; Anderson, _Notes of Travel in Fiji_,
p. 135.]
[Footnote 70: Sibree, _The Great African Island_, p. 325.]
[Footnote 71: Little, _Madagascar_, p. 71.]
[Footnote 72: Murdoch, 'Ethn. Results of the Point Barrow
Expedition,' in _Ann. Rep. Bur. Ethn._ ix. 42.]
[Footnote 73: Leslie, _Among the Zulus and Amatongas_, p. 203.]
[Footnote 74: Bosman, _Description of the Coast of Guinea_,
p. 317.]
[Footnote 75: Monrad, _Skildring af Guinea-Kysten_, p. 9.]
[Footnote 76: d'Arvieux, _Travels in Arabia the Desart_, p. 141.]
[Footnote 77: Smith, _Chinese Characteristics_, p. 35.]
[Footnote 78: _Ordre of Chyualry_, fol. 46. Robertson, _History
of the Reign of Charles V._ i. 84. Milman, _History of Latin
Christianity_, iv. 211. Turner, _History of England_, iii. 473.
Mills, _History of Chivalry_, i. 161 _sq._ Scott, 'Essay on
Chivalry,' in _Miscellaneous Prose Works_, vi. 58.]
The rules of politeness and good manners refer to all sorts of
social intercourse and vary indefinitely in detail. They tell
people how to sit or stand in each other's presence, or how to
pass through a door; a Zulu would be fined for going out of a hut
back first.[79] They prescribe how to behave at a meal; the
Indians of British Columbia consider it improper to talk on such
an occasion,[80] and it appears that in England also, in the
fifteenth century, "people did not hold conversation while
eating, but that the talk and mirth began with the liquor."[81]
Politeness demands that a person should never interrupt another
while speaking;[82] or that he should avoid contradicting a
statement;[83] or, not infrequently, that he should rather tell a
pleasant untruth than an unpleasant truth.[84] At times it
requires the use of certain phrases, words of thanks, flattery,
or expressions of self-humiliation. In Chinese there is "a whole
vocabulary of words which are indispensable to one who wishes to
pose as a 'polite' person, words in which whatever belongs to the
speaker is treated with scorn and contempt, and whatever relates
to the person addressed is honourable. The 'polite' Chinese will
refer to his wife, if driven to the extremity of referring {149}
to her at all, as his 'dull thorn,' or in some similar elegant
figure of speech."[85]
[Footnote 79: Tyler, _Forty Years among the Zulus_, p. 190 _sq._]
[Footnote 80: Woldt, _Kaptein Jacobsens Reiser til Nordamerikas
Nordvestkyst_, p. 99.]
[Footnote 81: Wright, _Domestic Manners and Sentiments in England
during the Middle Ages_, p. 396.]
[Footnote 82: Domenech, _Seven Years Residence in the Great
Deserts of North America_, ii. 72. Richardson, _Arctic Searching
Expedition_, i. 385 (Kutchin). Cranz, _History of Greenland_, i.
157. Dobrizhoffer, _Account of the Abipones_, ii. 136 _sq._
d'Arvieux, _op. cit._ p. 139 _sq._; Wallin, _Reseanteckningar
från Orienten_, iii. 259 (Bedouins).]
[Footnote 83: Nansen, _First Crossing of Greenland_, ii. 334
_sq._; Cranz, _op. cit._ i. 157 (Greenlanders). Dobrizhofifer,
_op. cit._ ii. 137 (Abipones). d'Arvieux, _op. cit._ p. 141
(Bedouins).]
[Footnote 84: _Supra_, ii. 111.]
[Footnote 85: Smith, _Chinese Characteristics_, p. 274.]
Politeness enjoins the performance of certain ceremonies upon
persons who meet or part. The custom of salutation is of
world-wide prevalence, though there are certain savages who are
said to have no greetings except when they have learnt the
practice from the whites.[86] As a ceremony prescribed by public
opinion it is an obligatory tribute paid to another person's
"self-feeling," whatever be the original nature of the act which
has been adopted for the purpose. The form of salutation has
sometimes been borrowed from questions springing from curiosity
or suspicion. Among the Californian Miwok, when anybody meets a
stranger he generally salutes him, "Whence do you come? What are
you at?"[87] The Abipones "would think it quite contrary to the
laws of good-breeding, were they to meet any one and not ask him
where he was going";[88] and a similar question is also a very
common mode of greeting among the Berbers of Southern Morocco.
Very frequently a salutation consists of some phrase which is
expressive of goodwill. It may be an inquiry about the other
person's health or welfare, as the English "How are you?" "How do
you do?" Among the Burmese two relatives or friends who meet
begin a conversation by the expressions, "Are you well? I am
well," if they have been some time separated; whereas those who
are daily accustomed to meet say, "Where are you going?"[89] The
Moors ask, "What is your news?" or, "Is nothing wrong?" The
ordinary salutation of the Zulus is, "I see you, are you well?"
after which the snuffbox, the token of friendship, is passed
round.[90] Among several tribes of California, again, a person
when greeting another {150} simply utters a word which means
"friendship."[91] The goodwill is often directly expressed in the
form of a wish, like our "Good day!" "Good night!" Among the
Hebrews the salutation at meeting or entering another's house
seems at first to have consisted most commonly in an inquiry
after mutual welfare,[92] but in later times "Health!" or "Peace
to thee!" became the current greeting.[93] According to the Laws
of Manu, a Brâhmana should be saluted, "May thou be long-lived, O
gentle one!"[94] The Greeks said [Greek: chai=re] ("Be joyful!");
the Romans, _Salve!_ ("Be in health!") especially on meeting, and
_Vale!_ ("Be well!") on parting. The good wish may have the form
of a prayer. The Moors say, "May God give thee peace!" "May God
give thee a good night!" and the English "Good-bye" and the
French _Adieu_ are prayers curtailed by the progress of time. But
there is no foundation for Professor Wundt's assertion that "the
words employed in greeting are one and all prayer formulæ in a
more or less rudimentary state."[95] A salutation may, finally,
be a verbal profession of subjection, as the Swedish "Ödmjukaste
tjänare," that is, (I am your) "most humble servant."
[Footnote 86: Krasheninnikoff, _History of Kamschatka_, p. 177.
Dall, _op. cit._ p. 397 (Aleuts). Egede, _Description of
Greenland_, p. 125; Rink, _Danish Greenland_, p. 223; Cranz, _op.
cit._ i. 157 (Greenlanders). Prescott, in Schoolcraft, _Indian
Tribes of the United States_, iii. 244 (Dacotahs). Lewin, _Wild
Races of South-Eastern India_, pp. 230 (Kumi), 256 (Kukis).]
[Footnote 87: Powers, _Tribes of California_, p. 347.]
[Footnote 88: Dobrizhoffer, _op. cit._ ii. 138.]
[Footnote 89: Forbes, _British Burma_, p. 69.]
[Footnote 90: Tyler, _op. cit._ p. 190.]
[Footnote 91: Powers, _op. cit._ p. 58.]
[Footnote 92: _Genesis_, xliii. 27. _Exodus_, xviii. 7.]
[Footnote 93: _Judges_, xix. 20. _1 Chronicles_, xii. 18. _Cf._
Keil, _Manual of Biblical Archæology_, ii. 183.]
[Footnote 94: _Laws of Manu_, ii. 125.]
[Footnote 95: Wundt, _Ethik_, p. 179.]
Salutations may consist not only in words spoken, but in
conventional gestures, either accompanied by some verbal
expression or performed silently.[96] They may be tokens of
submission or reverence, as cowering, crouching, and bowing. Or
they may originally have been signs of disarming or
defencelessness, as uncovering some particular portion of the
body. Von Jhering suggests that the offering of the hand belongs
to the same group of salutations, its object being to indicate
that the other person has nothing to fear;[97] but in many cases
at least handshaking seems to have the same origin as other
ceremonies consisting {151} in bodily contact. Salutatory
gestures may express not only absence of evil intentions but
positive friendliness; among respectable Moors it is a common
mode of greeting that each party places his right hand on his
heart to indicate, as Jackson puts it, "that part to be the
residence of the friend."[98] Various forms of salutation by
contact, such as clasping, embracing, kissing, and sniffing, are
obviously direct expressions of affection;[99] and we can hardly
doubt that the joining of hands serves a similar object when we
find it combined with other tokens of goodwill. Among some of the
Australian natives, friends, on meeting after an absence, "will
kiss, shake hands, and sometimes cry over one another."[100] In
Morocco equals salute each other by joining their hands with a
quick motion, separating them immediately, and kissing each his
own hand. The Soolimas, again, place the palms of the right hands
together, carry them then to the forehead, and from thence to the
left side of the chest.[101] But bodily union is also employed as
a method of transferring either blessings or conditional curses,
and it seems probable that certain salutatory acts have vaguely
or distinctly such transference in view. Among the Masai, who
spit on each other both when they meet and when they part,
spitting "expresses the greatest goodwill and the best of
wishes";[102] and in a previous chapter I have endeavoured to
show that the object of certain reception ceremonies is to
transfer a conditional curse to the stranger who is received as a
guest.[103] On the same principle as underlies these ceremonies,
handshaking may be a means of joining in compact, analogous to a
common meal[104] and the blood-covenant.[105]
[Footnote 96: See Tylor, 'Salutations,' in _Encyclopædia
Britannica_, xxi. 235 _sqq._; Ling Roth, 'Salutations,' in _Jour.
Anthr. Inst._ xix. 166 _sqq._]
[Footnote 97: von Jhering, _Der Zweck im Recht_, ii. 649 _sqq._]
[Footnote 98: Jackson, _Account of Timbuctoo, &c._ p. 235.]
[Footnote 99: See _infra_, on the Origin and Development of the
Altruistic Sentiment.]
[Footnote 100: Hackett, 'Ballardong or Ballerdokking Tribe,' in
Curr, _The Australian Race_, i. 343.]
[Footnote 101: Laing, _Travels in the Timannee, Kooranko, and
Soolima Countries_, p. 368.]
[Footnote 102: Thomson, _Through Masai Land_, p. 166.]
[Footnote 103: _Supra_, i. 590 _sq._]
[Footnote 104: _Supra_, i. 587.]
[Footnote 105: See _infra_, on the Origin and Development of the
Altruistic Sentiment.]
Being an homage rendered to other persons self-regarding {152}
pride, the rule of politeness is naturally most exacting in
relation to superiors. Many of its forms have, in fact,
originated in humble or respectful behaviour towards rulers,
masters, or elders, and, often in a modified shape, become common
between equals after they have lost their original meaning.[106]
It has been noticed that the cruelty of despots always engenders
politeness, whereas the freest nations are generally the rudest
in manners.[107] Politeness is further in a special degree shown
by men to women, not only among ourselves, but even among many
savages;[108] in this case courtesy is connected with courtship.
Strangers or remote acquaintances, also, have particular claims
to be treated with civility, whereas politeness is of little
moment in the intercourse of friends; it imitates kindness, and
is resorted to where the genuine feeling is wanting.[109] And in
the capacity of guest, the stranger is often for the time being
flattered with exquisite marks of honour, for reasons which have
been stated in another connection.
[Footnote 106: See Spencer, _Principles of Sociology_, ii.
'Ceremonial Institutions,' _passim_.]
[Footnote 107: Johnston, _Uganda_, ii. 685.]
[Footnote 108: Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur
Ethn._ iii. 270. Chanler, _Through Jungle and Desert_, p. 485
(Wakamba). See also _supra_, i. ch. xxvi.]
[Footnote 109: _Cf._ Tucker, _Light of Nature_, ii. 599 _sqq._;
Joubert, _Pensées_, i. 243.]
CHAPTER XXXIII
REGARD FOR OTHER PERSONS' HAPPINESS IN GENERAL--GRATITUDE--PATRIOTISM
AND COSMOPOLITANISM
IN previous chapters we have dealt with moral ideas concerning
various modes of conduct which have reference to other men's
welfare--to their life or bodily comfort, their liberty,
property, knowledge of truth, or self-regarding pride. But the
list of duties which we owe to our fellow-creatures is as yet by
no means complete. Any act, forbearance, or omission, which in
some way or other diminishes or increases their happiness may on
that account become a subject of moral blame or praise, being apt
to call forth sympathetic retributive emotions.
To do good to others is a rule which has been inculcated by all
the great teachers of morality. According to Confucius,
benevolence is the root of righteousness and a leading
characteristic of perfect virtue.[1] In the Taouist 'Book of
Secret Blessings' men are enjoined to be compassionate and
loving, and to devote their wealth to the good of their
fellow-men.[2] The moralists of ancient India teach that we
should with our life, means, understanding, and speech, seek to
advance the welfare of other creatures in this world; that we
should do so without expecting reciprocity; and that we should
enjoy the prosperity of others even though ourselves unprosperous.[3]
The writers {154} of classical antiquity repeatedly give expression
to the idea that man is not born for himself alone, but should assist
his fellow-men to the best of his ability.[4] In the Old
Testament we meet with the injunction, "Thou shalt love thy
neighbour as thyself";[5] and this was declared by Christ to be
of equal importance with the commandment, "Thou shalt love the
Lord thy God."[6]
[Footnote 1: _Lun Yü_, xvii. 6. Douglas, _Confucianism and
Taouism_, p. 108.]
[Footnote 2: Douglas, _op. cit._ p. 272 _sq._]
[Footnote 3: Muir, _Religious and Moral Sentiments rendered from
Sanskrit Writers_, p. 107 _sq._ Monier Williams, _Indian Wisdom_,
p. 448.]
[Footnote 4: Schmidt, _Die Ethik der alten Griechen_, ii. 275
_sqq._]
[Footnote 5: _Leviticus_, xix. 18.]
[Footnote 6: _St. Matthew_, xxii. 39.]
To a reflecting mind it is obvious that the moral value of
beneficence exclusively lies in the benevolent motive, and that
there is nothing praiseworthy in promoting the happiness of
others from selfish considerations. Confucius taught that self
must be conquered before a man can be perfectly virtuous.[7]
According to Lao-tsze, self-abnegation is the cardinal rule for
both the sovereign and the people.[8] Self-denial is the chief
demand of the Gospel, and is emphasised as a supreme duty by
Islam.[9] Generally speaking, the merit attached to a good action
is proportionate to the self-denial which it costs the agent.
This follows from the nature of moral approval in its capacity of
a retributive emotion, as is proved by the fact that the degree
of gratitude felt towards a benefactor is in a similar way
influenced by the deprivation to which he subjects himself. On
the other hand, there is considerable variety of opinion, even
among ourselves, as to the dictates of duty, in cases where our
own interests conflict with those of our fellow-men. To Professor
Sidgwick it is a moral axiom that "I ought not to prefer my own
lesser good to the greater good of another."[10] According to
Hutcheson, we do not condemn those as evil who will not sacrifice
their private interest to the advancement of the positive good of
others, "unless the private interest be very small, and the
publick good very great."[11]
[Footnote 7: _Lun Yü_, xii. i. 1.]
[Footnote 8: Douglas, _Confucianism and Taouism_, p. 192.]
[Footnote 9: Ameer Ali, _Ethics of Islâm_, p. 32.]
[Footnote 10: Sidgwick, _Methods of Ethics_, p. 383.]
[Footnote 11: Hutcheson, _Essay on the Nature and Conduct of the
Passions, &c._ p. 312.]
The idea that it is bad to cause harm to others and {155} good or
obligatory to promote their happiness, is in different ways
influenced by the relationship between the parties; and to many
cases it does not apply at all. We have previously noticed that
according to early ethics an enemy is a proper object of hatred,
not of love;[12] and according to more advanced ideas a person
who treats us badly has at all events little claim upon our
kindness. The very opposite is the case with a benefactor or
friend. To requite a benefit, or to be grateful to him who
bestows it, is probably everywhere, at least under certain
circumstances, regarded as a duty. This is a subject which in the
present connection calls for special consideration.
[Footnote 12: _Supra_, i. p. 73 _sq._]
The duty of gratefulness presupposes a disposition for
gratitude.[13] According to travellers' accounts, this feeling is
lacking in many uncivilised races.[14] Lyon writes of the Eskimo
of Igloolik:--"Gratitude is not only rare, but absolutely unknown
amongst them, either by action, word, or look, beyond the first
outcry of satisfaction. Nursing their sick, burying the dead,
clothing and feeding the whole tribe, furnishing the men with
weapons, and the women and children with ornaments, are
insufficient to awaken a grateful feeling, and the very people
who relieved their distresses when starving are laughed at in
time of plenty for the quantity and quality of the food which was
bestowed in charity."[15] Various other tribes in {156} North
America have been accused of ingratitude;[16] and of some South
American savages we are told that they evinced no thankfulness
for the presents which were given them.[17] The Fijians are
described as utterly indifferent to their benefactors. The Rev.
Th. Williams writes:--"If one of them, when sick, obtained
medicine from me, he thought me bound to give him food; the
reception of food he considered as giving him a claim on me for
covering; and, that being secured, he deemed himself at liberty
to beg anything he wanted, and abuse me if I refused his
unreasonable request."[18] Mr. Lumholtz had a similar experience
with regard to the natives of Herbert River, Northern
Queensland:--"If you give one thing to a black man, he finds ten
other things to ask for, and he is not ashamed to ask for all
that you have, and more too. He is never satisfied. Gratitude
does not exist in his breast."[19] In several languages there is
no word expressive of what we term gratitude or no phrase
corresponding to our "thank you";[20] and on this fact much
stress has been {157} laid, the deficiency of language being
regarded as an indication of a corresponding deficiency in feelings.
[Footnote 13: For the definition of gratitude, see _supra_, i. 93.]
[Footnote 14: Steller, _Beschreibung von Kamischatka_, p. 292.
Bergmann, _Nomadische Streifereien unter den Kalmüken_, ii. 310,
316. Foreman, _Philippine Islands_, p. 183. Modigliani, _Viaggio
a Nías_, p. 467. Selenka, _Sonnige Welten_, p. 286 (Malays).
Marsden, _History of Sumatra_, p. 207 (Malays of Sumatra).
Forbes, _A Naturalist's Wanderings in the Eastern Archipelago_,
p. 320 (natives of Timor-laut). Mrs. Forbes, _Insulinde_, p. 178
(natives of Ritabel). Hagen, _Unter den Papua's_, p. 266 (Papuans
of Bogadjim). Romilly, _Western Pacific and New Guinea_, p. 239.
La Pérouse, _Voyage round the World_, ii. 109 (Samoans). Colenso,
_Maori Races of New Zealand_, p. 48; Dieffenbach, _Travels in New
Zealand_, ii. 110. Ling Roth, _Aborigines of Tasmania_, p. 63.
Gason, 'Manners and Customs of the Dieyerie Tribe,' in Woods,
_Native Tribes of South Australia_, p. 258. Baker, _Albert
N'yanza_, i. 242 (Latukas), 289 (Negroes), von François, _Nama
und Damara_, p. 191 (Herero).]
[Footnote 15: Lyon, _Private Journal during the Voyage of
Discovery under Captain Parry_, p. 348 _sq._ See also Parry,
_Journal of a Second Voyage for the Discovery of a North-West
Passage_, p. 524 _sq._]
[Footnote 16: Cranz, _History of Greenland_, i. 174. Sarytschew,
'Voyage of Discovery to the North-East of Siberia,' in
_Collection of Modern Voyages_, vi. 78 (Aleuts). Harmon, _Voyages
and Travels in the Interior of North America_, p. 291
(Tacullies). Heriot, _Travels through the Canadas_, p. 319.
Lafitau, _M[oe]urs des sauvages ameriquains_, i. 106. Burton,
_City of the Saints_, p. 125 (Sioux and prairie tribes generally).]
[Footnote 17: von Spix and von Martius, _Travels in Brazil_, ii.
228, 241 _sq._ (Coroados). Stokes, quoted by King and Fitzroy,
_Voyages of the 'Adventure' and 'Beagle,'_ i. 77 (Fuegians).]
[Footnote 18: Williams and Calvert, _Fiji_, p. 111. See also
Anderson, _Notes of Travel in Fiji and New Caledonia_,
pp. 124, 131.]
[Footnote 19: Lumholtz, _Among Cannibals_, p. 100.]
[Footnote 20: Southey, _History of Brazil_, iii. 399 (Abipones,
Guaranies). Hearne, _Journey to the Northern Ocean_, p. 307
(Northern Indians). Lewin, _Wild Races of South-Eastern India_,
p. 192 (Toungtha). Foreman, _op. cit._ p. 182 _sq._ (Bisayans).
Modigliani, _Viaggio a Nías_, p. 467. Ling Roth, _Natives of
Sarawak_, i. 74 (Dyaks). Chalmers, _Pioneering in New Guinea_,
p. 187; Romilly, _Western Pacific and New Guinea_, p. 239 _sq._
(However, Mr Romilly's statement that "in all the known New
Guinea languages there is not even a word for 'thank you,'" is
not quite correct, as appears from Chalmers _op. cit._ p. 187.)
Wilson, _Missionary Voyage to the Southern Pacific Ocean_,
p. 365; Waitz-Gerland, _Anthropologie der Naturvölker_, vi. 116
(Tahitians). Colenso, _op. cit._ p. 48 (Maoris). New, _Life and
Labours in Eastern Africa_, p. 100 (Wanika). von François, _op.
cit._ p. 191 (Herero). In the Vedic language, also, there was no
word for "thanks" (Oldenberg, _Die Religion des Veda_, p. 305);
and many Eastern languages of the present day lack an equivalent
for "thank you" (Ward, _View of the History, &c. of the Hindoos_,
ii. 81, n. _a_.; Pool, _Studies in Muhammedanism_, p. 176; Polak,
_Persien_, i. 9). When one of the missionaries in India was
engaged in the translation of the Scriptures into Bengali, he
found no common word in that language suitable to express the
idea of gratitude (Wilkins, _Modern Hinduism_, p. 397).]
Here again we must distinguish between a traveller's actual
experience and the conclusions which he draws from it; and it
seems that in many cases our authorities have been too ready to
charge savages with a total lack of grateful feelings, because
they have been wanting in gratitude on certain occasions. It is
too much to expect that a savage should show himself thankful to
any stranger who gives him a present. Speaking of the Ahts of
British Columbia, Mr Sproat remarks that the Indian's suspicion
prevents a ready gratitude, as he is prone to see, in apparent
kindness extended to him, some under-current of selfish motive.
"He is accustomed, among his own people, to gifts made for
purposes of guile, and also to presents made merely to show the
greatness and richness of the giver; but, I imagine," our author
adds, "when the Aht ceases to suspect such motives--when he does
not detect pride, craft, or carelessness--he is grateful, and
probably grateful in proportion to the trouble taken to serve
him."[21] As for the ingratitude of the Northern Queensland
natives, Mr. Lumholtz himself admits that "they assume that the
gift is bestowed out of fear";[22] and of the New Zealanders we
are told that their total want of gratitude was particularly due
to the fact that "no New Zealander ever did any kindness, or gave
anything, to another, without mainly having an eye to himself in
the transaction."[23] Moreover, gratitude often requires not only
the absence of a selfish motive in the benefactor, but some
degree of self-sacrifice. "A person," says Mr. Sproat, "may keep
an Indian from starving all the winter through, yet, when summer
comes, very likely he will not walk a yard for his preserver
without payment. The savage does not, in this instance, {158}
recognise any obligation; but thinks that a person who had so
much more than he could himself consume might well, and without
any claim for after services, part with some of it for the
advantage of another in want."[24] Mr. Powers makes a similar
observation with reference to the aborigines of California:--"White
men," he says, "who have had dealings with Indians, in
conversation with me have often bitterly accused them of
ingratitude. 'Do everything in your power for an Indian,' they
say, 'and he will accept it all as a matter of course; but for
the slightest service you require of him he will demand pay.'
These men do not enter into the Indian's ideas. This
'ingratitude' is really an unconscious compliment to our power.
The savage feels, vaguely, the unapproachable elevation on which
the American stands above him. He feels that we had much and he
had little, and we took away from him even his little. In his
view giving does not impoverish us, nor withholding enrich us.
Gratitude is a sentiment not in place between master and slave;
it is a sentiment for equals. The Indians are grateful to one
another."[25] Nor are men very apt to feel grateful for benefits
to which they consider themselves to have a right. Thus,
according to Mr. Howitt, the want of gratitude among the South
Australian Kurnai for kindnesses shown them by the whites is due
to the principle of community, which is so strong a feature of
the domestic and social life of these aborigines. "For a supply
of food, or for nursing when sick, the Kurnai would not feel
grateful to his family group. There would be a common obligation
upon all to share food, and to afford personal aid and succour.
This principle would also come into play as regards the simple
personal property they possess, and would extend to the
before-unknown articles procured from the whites. The food, the
clothes, the medical attendance which the Kurnai receive from the
whites, they take in the accustomed manner; and, in addition to
{159} this, we must remember that the donors are regarded as
having unlimited resources. They cannot be supposed by the Kurnai
to be doing anything but giving out of their abundance."[26] Mr.
Guppy found the same principle at work among the Solomon
Islanders:--"Often when during my excursions I have come upon
some man who was preparing a meal for himself and his family, I
have been surprised at the open-handed way in which he dispensed
the food to my party of hungry natives. No gratitude was shown
towards the giver, who apparently expected none."[27] It has also
been observed that the want of gratitude with which Arabs have
often been charged by Europeans has arisen "from the very common
practice of hospitality and generosity, and from the prevailing
opinion that these virtues are absolute duties which it would be
disgraceful and sinful to neglect."[28]
[Footnote 21: Sproat, _Scenes and Studies of Savage Life_,
p. 165 _sq._]
[Footnote 22: Lumholtz, _Among Cannibals_, p. 159.]
[Footnote 23: Colenso, _op. cit._ p. 48.]
[Footnote 24: Sproat, _op. cit._ p. 165 _sq._]
[Footnote 25: Powers, _Tribes of California_, p. 411.]
[Footnote 26: Fison and Howitt, _Kamilaroi and Kurnai_, p. 257.]
[Footnote 27: Guppy, _Solomon Islands_, p. 127.]
[Footnote 28: Lane, _Manners and Customs of the Modern
Egyptians_, p. 298. See also Burton, _Pilgrimage to Al-Madinah
and Meccah_, i. 51.]
We should further remember that savages often take care not to
display their emotions. Among the Melanesians, according to Dr.
Codrington, "it is not the custom to say anything by way of
thanks; it is rather improper to show emotion when anything is
given, or when friends meet again; silence with the eyes cast
down is the sign of the inward trembling or shyness which they
feel, or think they ought to feel, under these circumstances.
There is no lack of a word which may be fairly translated
'thank'; and certainly no one who has given cause for it will say
that Melanesians have no gratitude; others probably are ready
enough to say it."[29] Of the North American Chippewas Major
Strickland writes:--"If an Indian makes a present, it is always
expected that one equally valuable should be given in return. No
matter what you give them, or how valuable or rich the present,
they seldom betray the least emotion or appearance of gratitude,
it being considered beneath the dignity of a red man to betray
his feelings. For all this seeming indifference, {160} they are
in reality as grateful, and, I believe, even more so than our own
peasantry."[30] The Aleuts also, although they are chary of
expressions of thanks, "do not forget kindness, and endeavour to
express their thankfulness by deeds. If anyone assists an Aleut,
and afterwards offends him, he does not forget the former favour,
and in his mind it often cancels the offence."[31] From the want
of a word for a feeling we must not conclude that the feeling
itself is wanting. Mr. Sproat observes:--"The Ahts have, it is
true, no word for gratitude, but a defect in language does not
absolutely imply defect in heart; and the Indian who, in return
for a benefit received, says, with glistening eyes, that his
heart is good towards his benefactor, expresses his gratitude
quite as well perhaps as the English man who says 'Thank you.'"[32]
[Footnote 29: Codrington, _Melanesians_, p. 354.]
[Footnote 30: Strickland, _Twenty-seven Years in Canada West_,
ii. 58.]
[Footnote 31: Veniaminof, quoted by Dall, _Alaska_, p. 395.]
[Footnote 32: Sproat, _op. cit._ p. 165. See also Ling Roth,
_Natives of Sarawak_, i. 74 (Dyaks).]
It is not surprising, then, that in various cases a people which
to one traveller appears to be quite destitute of gratitude is by
another described as being by no means lacking in this
feeling;[33] and sometimes contradictory statements are made even
by the same writer. Thus Mr. Lumholtz, who gives such a gloomy
picture of the character of the Northern Queensland natives,
nevertheless tells us of a native who, though himself very
hungry, threw the animals which the traveller had shot for him to
an old man--his wife's uncle--whom they met, in order to give
some proof of the gratitude he owed the person from whom he had
received his wife;[34] and regarding the Fijians Mr. Williams
himself states that thanks for presents "are always expressed
aloud, and generally with a kind wish for the giver."[35] As we
have noticed before, retributive kindly emotions, of which
gratitude is only the most developed form, are commonly found
among gregarious animals, social affection being not only a
friendly {161} sentiment towards another individual, but towards
an individual who is conceived of as a friend.[36] And it is all
the more difficult to believe in the absolute want of gratitude
in some savage races, as the majority of them--to judge from my
collection of facts--are expressly acquitted of such a defect,
and several are described as remarkably grateful for benefits
bestowed upon them.
[Footnote 33: _E.g._, the Fuegians, Sioux, Ahts, Aleuts,
Kamchadales, Tasmanians, Zulus (see _supra_ and _infra_).]
[Footnote 34: Lumholtz, _Among Cannibals_, p. 221.]
[Footnote 35: Williams and Calvert, _op. cit._ p. 132.]
[Footnote 36: _Supra_, i. 94.]
The Fuegians use the word _chapakouta_, which means glad,
satisfied, affectionate, grateful, to express thanks.[37] Jemmy
Button, the young Fuegian who was brought to England on board the
_Beagle_, gave proofs of sincere gratitude;[38] and Admiral
Fitzroy also mentions a Patagonian boy who appeared thankful for
kindness shown to him.[39] Of the Mapuchés of Chili Mr. E. R.
Smith observes:--"Whatever present is made, or favour conferred,
is considered as something to be returned; and the Indian never
fails, though months and years may intervene, to repay what he
conscientiously thinks an exact equivalent for the thing
received."[40] The Botocudos do not readily forget kind
treatment;[41] and the Tupis "were a grateful race, and
remembered that they had received gifts, after the giver had
forgotten it."[42] The Guiana Indians "are grateful for any
kindness."[43] The Navahos of New Mexico have a word for thanks,
and employ it on all occasions which we would consider
appropriate.[44] The Sioux "evinced the warmest gratitude to any
who had ever displayed kind feelings towards them."[45] In his
'Voyages from Montreal to the Frozen and Pacific Oceans,'
Mackenzie mentions the gratitude shown him by a young Indian whom
he had cured of a bad wound. When well enough to engage in a
hunting party, the young man brought to his physician the tongue
of an elk, and when they parted both he and his relatives
expressed the heartiest acknowledgment for the care bestowed on
him.[46] If an Aleut receives a gift he accepts it, saying _Akh!_
which means "thanks."[47] Some of the Point Barrow Eskimo visited
by Mr. Murdoch "seem to feel truly {162} grateful for the
benefits and gifts received, and endeavoured by their general
behaviour, as well as in more substantial ways, to make some
adequate return"; whereas others appeared to think only of what
they might receive.[48]
[Footnote 37: Hyades and Deniker, _Mission scientifique du Cap
Horn_, vii. 314.]
[Footnote 38: King and Fitzroy, _op. cit._ ii. 327.]
[Footnote 39: _Ibid._ ii. 173.]
[Footnote 40: Smith, _Araucanians_, p. 258.]
[Footnote 41: Wied-Neuwied, _Reise nach Brasilien_, ii. 16.]
[Footnote 42: Southey, _op. cit._ i. 247.]
[Footnote 43: Im Thurn, _Among the Indians of Guiana_, p. 213.]
[Footnote 44: Matthews, 'Study of Ethics among the Lower Races,'
in _Journal of American Folk-Lore_, xii. 9.]
[Footnote 45: Eastman, _Dacotah_, p. ix.]
[Footnote 46: Mackenzie, _Voyages from Montreal to the Frozen and
Pacific Oceans_, p. 137 _sq._]
[Footnote 47: Veniaminof, quoted by Dall, _op. cit._ p. 395.]
[Footnote 48: Murdoch, 'Ethnol. Results of the Point Barrow
Expedition,' in _Ann. Rep. Bur. Ethn._ ix. 42. See also Seemann,
_Voyage of 'Herald,'_ ii. 67 (Western Eskimo).]
Of the Tunguses it is said, "If you make them a present, they
hardly thank you; but though so unpolite, they are exceedingly
grateful."[49] The Jakuts never forget a benefit received; "for
they not only make restitution, but recommend to their offspring
the ties of friendship and gratitude to their benefactors."[50]
The Veddah of Ceylon is described as very grateful for attention
or assistance.[51] "A little kindly sympathy makes him an
attached friend, and for his friend . . . . he will readily give
his life."[52] Mr. Bennett once had an interview with two village
Veddahs, and on that occasion gave them presents. Two months
after a couple of elephant's tusks found their way into his front
verandah at night, but the Veddahs who had brought them never
gave him an opportunity to reward them. "What a lesson in
gratitude and delicacy," he exclaims, "even a Veddah may teach!"[53]
[Footnote 49: Georgi, _Russia_, iii. 111.]
[Footnote 50: Sauer, _Expedition to the Northern Parts of Russia,
performed by Billings_, p. 124.]
[Footnote 51: Tennent, _Ceylon_, ii. 445. Sarasin, _Forschungen auf
Ceylon_, iii. 546.]
[Footnote 52: Nevill, 'Vaeddas of Ceylon,' in _Taprobanian_, i. 192.]
[Footnote 53: Pridham, _Account of Ceylon_, i. 460 _sq._]
The Alfura of Halmahera,[54] the Bataks of Sumatra,[55] and the
Dyaks of Borneo[56] are praised for their grateful disposition of
mind. Of the Hill Dyaks Mr. Low observes that gratitude
"eminently adorns the character of these simple people, and the
smallest benefit conferred upon them calls forth its vigorous and
continued exercise."[57] The Motu people of New Guinea are
"capable of appreciating kindness,"[58] and have words for
expressing thanks.[59] Chamisso speaks highly of the gratitude
evinced by the natives of Ulea, Caroline Islands:--"Any thing, a
useful instrument, for example, which they have received as a
gift from a friend, retains and bears among them as a lasting
memorial the name of the friend who bestowed it."[60] When
Professor Moseley at Dentrecasteaux Island, of the Admiralty
Group, gave a hatchet as pay to his guide, according {163} to
promise, the guide seemed grateful, and presented him with his
own shell adze in return.[61] Though the Tahitians never return
thanks nor seem to have a word in their language expressive of
gratitude, they are not devoid of the feeling itself.[62]
Backhouse tells us of a Tasmanian native who, having been nursed
through an illness, showed many demonstrations of gratitude; and
he adds that this virtue was often exhibited among these
people--a statement which is corroborated by the accounts of
other travellers.[63] Of the Australian aborigines Mr. Ridley
writes:--"I believe they are as a people remarkably susceptible
of impressions from kind treatment. They recognised me as one who
sought their good, and were evidently pleased and thankful to see
that I thought them worth looking after."[64] The Adelaide and
Encounter Bay blacks are said to display attachment to persons
who are kind to them.[65] Speaking of the Central Australian
tribes, Messrs. Spencer and Gillen observe that, though they are
not in the habit of showing anything like excessive gratitude on
receiving gifts from the white man, they are in reality by no
means incapable of that feeling;[66] and other writers report
instances of gratitude displayed by natives of West Australia[67]
and Queensland.[68]
[Footnote 54: Kükenthal, _Forschungsreise in den Molukken und
Borneo_, i. 188.]
[Footnote 55: Junghuhn, _Die Battaländer auf Sumatra_, ii. 239.]
[Footnote 56: Ling Roth, _Natives of Sarawak_, i. 74, 76.]
[Footnote 57: Low, _Sarawak_, p. 246.]
[Footnote 58: Stone, _A Few Months in New Guinea_, p. 95.]
[Footnote 59: Chalmers, _Pioneering in New Guinea_, p. 187.]
[Footnote 60: von Kotzebue, _Voyage of Discovery into the South
Sea_, iii. 214.]
[Footnote 61: Moseley, 'Inhabitants of the Admiralty Islands,' in
_Jour. Anthr. Inst._ vi. 416.]
[Footnote 62: Waitz-Gerland, _op. cit._ vi. 116.]
[Footnote 63: Ling Roth, _Aborigines of Tasmania_, pp. 47, 62, 64.]
[Footnote 64: Ridley, _Aborigines of Australia_, p. 24. See also
_ibid._ p. 20 _sqq._]
[Footnote 65: Wyatt, 'Manners and Superstitions of the Adelaide
and Encounter Bay Aboriginal Tribes,' in Woods, _Native Tribes of
South Australia_, p. 162.]
[Footnote 66: Spencer and Gillen, _Native Tribes of Central
Australia_, p. 48 _sqq._]
[Footnote 67: Salvado, _Mémoires historiques sur l'Australie_,
p. 146.]
[Footnote 68: Fraser, _Aborigines of New South Wales_, p. 44.]
Concerning the people of Madagascar the missionary Ellis
writes:--"Whether the noble and generous feeling of gratitude has
much place amongst the Malagasy has been questioned. Though often
characterised by extreme apathy, they are certainly susceptible
of tenderness of feeling, and their customs furnish various modes
of testifying their sense of any acts of kindness shewn them, and
their language contains many forms of speech expressive of
thankfulness. The following are among those in most general use:
'May you live to grow old--may you live long--may you live
sacred--may you see, or obtain, justice from the sovereign.'"
Moreover, with all their expressions of thankfulness,
considerable action is used: sometimes the two hands are extended
open as if to make a present; or the party stoops down to the
ground, and clasps the legs, or touches the knee and the feet of
the person he is thanking.[69] Ingratitude, {164} again, is
expressed by many strong metaphors, such as "son of a
thunderbolt," or "offspring of a wild boar."[70] The Bushmans,
according to Burchell, are not incapable of gratitude.[71] The
statement made by certain travellers or colonists that the Zulus
are devoid of this feeling, is contradicted by Mr. Tyler, who
asserts that "many instances might be related in which a thankful
spirit has been manifested, and gifts bestowed for favours
received."[72] The Basutos have words to express gratitude.[73]
Among the Bakongo, says Mr. Ward, "evidences of gratitude are
rare indeed, although occasionally one meets with this sentiment
in odd guises. Once, by a happy chance, I saved a baby's life.
The child was brought to me by its mother in convulsions, and I
was fortunate enough to find in my medicine chest a drug that
effected an almost immediate cure. Yet the service I rendered to
this woman, instead of meeting with any appreciation, only
procured for me the whispered reputation of being a witch." But
twenty months afterwards, at midnight when all the people were
sleeping, the same woman came to Mr. Ward and gave him some
fowl's eggs in payment. "I come," she said, "in the darkness that
my people may not know, for they would jeer at me if they knew of
this gift."[74] A traveller tells us that the inhabitants of
Great Benin "if given any trifles expressed their thanks."[75]
Writing on the natives of Accra, Monrad states that gratitude is
among the virtues of the Negroes, and induces them even to give
their lives in return for benefits conferred on them.[76] The
Feloops, bordering on the Gambia, "display the utmost gratitude
and affection towards their benefactors."[77] As regards the
Eastern Central Africans, Mr. Macdonald affirms without any
hesitation that they have gratitude, "even though we define
gratitude as being much more than an 'acute sense of favours to
come.'"[78] The Masai and Wadshagga have "a curious habit of
spitting on things or people as a compliment or sign of
gratitude"[79]--originally, I presume, with a view to
transferring to them a blessing. The Barea are said to be
thankful for benefits.[80] According to Palgrave, "gratitude is
no {165} less an Arab than a European virtue, whatever the
ignorance or the prejudices of some foreigners may have affirmed
to the contrary";[81] and Burckhardt says that an Arab never
forgets the generosity shown to him even by an enemy.[82]
[Footnote 69: Ellis, _History of Madagascar_, i. 258. See also
Rochon, _Voyage to Madagascar_, p. 56.]
[Footnote 70: Ellis, _op. cit._ i. 139 _sq._]
[Footnote 71: Burchell, _Travels in the Interior of Southern
Africa_, ii. 68, 86, 447.]
[Footnote 72: Tyler, _Forty Years among the Zulus_, p. 194.]
[Footnote 73: Casalis, _Basutos_, p. 306.]
[Footnote 74: Ward, _Five Years with the Congo Cannibals_, p. 47
_sqq._]
[Footnote 75: Punch, quoted by Ling Roth, _Great Benin_, p. 45.]
[Footnote 76: Monrad, _Skildring af Guinea-Kysten_, p. 8.]
[Footnote 77: Mungo Park, _Travels in the Interior of Africa_,
p. 14.]
[Footnote 78: Macdonald, _Africana_, i. 10.]
[Footnote 79: Johnston, _Kilima-njaro Expedition_, p. 438.]
[Footnote 80: Munzinger, _Ostafrikanische Studien_, p. 533.]
[Footnote 81: Palgrave, quoted in Spencer's _Descriptive
Sociology_, 'Asiatic Races,' p. 31.]
[Footnote 82: Burckhardt, _Notes on the Bedouins and Wahábys_,
p. 105.]
In other statements gratitude is directly represented as an
object of praise, or its absence as an object of disapproval.
Among the Atkha Aleuts, according to Father Yakof, gratitude to
benefactors was considered a virtue.[83] Among the Omahas, if a
man receives a favour and does not manifest his thankfulness, the
people exclaim:--"He does not appreciate the gift! He has no
manners."[84] The Kamchadales "are not only grateful for favours,
but they think it absolutely necessary to make some return for a
present."[85] The Chinese say that "kindness is more binding than
a loan."[86] According to the 'Divine Panorama,' a well-known
Taouist work, those who forget kindness and are guilty of
ingratitude shall be tormented after death and "shall not escape
one jot of their punishments."[87] In one of the Pahlavi texts
gratitude is represented as a means of arriving at heaven, whilst
ingratitude is stigmatised as a heinous sin;[88] and according to
Ammian ungrateful persons were even punished by law in ancient
Persia.[89] The same, we are told, was the case in Macedonia.[90]
The duty of gratitude was strongly inculcated by Greek and Roman
moralists.[91] Aristotle observes that we ought, as a general
rule, rather to return a kindness to our benefactor than to
confer a gratuitous favour upon a brother in arms, just as we
ought rather to repay a loan to a creditor than to spend the same
sum upon a present to a friend.[92] According to {166} Xenophon
the requital of benefits is enjoined by a divine law.[93] "There
is no duty more indispensable than that of returning a kindness,"
says Cicero; "all men detest one forgetful of a benefit."[94]
Seneca calls ingratitude a most odious vice, which it is difficult
to punish by law, but which we refer for judgment to the gods.[95]
The ancient Scandinavians considered it dishonourable for a man to
kill even an enemy in blood-revenge if he had received a benefit
from him.[96]
[Footnote 83: Yakof, quoted by Petroff, _Report on the
Population, &c. of Alaska_, p. 158.]
[Footnote 84: Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur.
Ethn._ iii. 270.]
[Footnote 85: Dobell, _Travels in Kamtschatka_, i. 75.]
[Footnote 86: Davis, _China_, ii. 123.]
[Footnote 87: Giles, _Strange Stories from a Chinese Studio_,
ii. 374 _sq._ See also _Thâi-Shang_, 4.]
[Footnote 88: _Dînâ-î Maînôg-î Khirad_, xxxvi. 28; xxxvii. 6;
xliii. 9.]
[Footnote 89: Ammianus Marcellinus, xxiii. 6. 81.]
[Footnote 90: Seneca, _De beneficiis_, iii. 6. 2.]
[Footnote 91: See Schmidt, _Die Ethik der alten Griechen_, ii.
305 _sqq._]
[Footnote 92: Aristotle, _Ethica Nicomachea_, x. 2. 3.]
[Footnote 93: Xenophon, _Memorabilia_, iv. 4. 24.]
[Footnote 94: Cicero, _De officiis_, i. 15 (47); ii. 18 (63).]
[Footnote 95: Seneca, _De beneficiis_, iii. 6. 1 _sq._]
[Footnote 96: Maurer, _Die Bekehrung des Norwegischen Stammes_,
ii. 174.]
We may assume that among beings capable of feeling moral emotions
the general disposition to be kind to a benefactor will
inevitably lead to the notion that ungrateful behaviour is wrong.
Such behaviour is offensive to the benefactor; as Spinoza
observes, "he who has conferred a benefit on anyone from motives
of love or honour will feel pain, if he sees that the benefit is
received without gratitude."[97] This by itself tends to evoke in
the bystander sympathetic resentment towards the offender; but
his resentment is much increased by the retributive kindliness
which he is apt to feel, sympathetically, towards the benefactor.
He wants to see the latter's kindness rewarded; and he is shocked
by the absence of a similar desire in the very person who may be
naturally expected to feel it more strongly than anybody else**.
[Footnote 97: Spinoza, _Ethica_, iii. 42. A Japanese proverb says
that "thankless labour brings fatigue" (Reed, _Japan_, ii. 109).]
The moral ideas concerning conduct which affects other persons'
welfare vary according as the parties are members of the same or
different families, or of the same or different communities. For
reasons which have been stated in previous chapters parents have
in this respect special duties towards their children, and
children towards their parents; and a tribesman or a
fellow-countryman has claims which are not shared by a foreigner.
But there are duties not only to particular individuals, but also
to {167} whole social aggregates. Foremost among these is the
duty of patriotism.
The duty of patriotism is rooted in the patriotic sentiment, in a
person's love of the social body of which he is himself a member,
and which is attached to the territory he calls his country. It
involves a desire to promote its welfare, a wish that it may
prosper for the time being and for all future. This desire is the
outcome of a variety of sentiments: of men's affection for the
people among whom they live, of attachment to the places where
they have grown up or spent part of their lives, of devotion to
their race and language, and to the traditions, customs, laws,
and institutions of the society in which they were born and to
which they belong.
Genuine patriotism presupposes a power of abstraction which the
lower savages can hardly be supposed to possess. But it seems to
be far from unknown among uncultured peoples of a higher type.
North American Indians are praised for their truly patriotic
spirit, for their strong attachment to their tribe and their
country.[98] Carver says of the Naudowessies:--"The honour of
their tribe, and the welfare of their nation, is the first and
most predominant emotion of their hearts; and from hence proceed
in a great measure all their virtues and their vices. Actuated by
this, they brave every danger, endure the most exquisite
torments, and expire triumphing in their fortitude, not as a
personal qualification, but as a national characteristic."[99]
Patriotism and public spirit were often strongly manifested by
the Tahitians.[100] The Maori "loves his country and the rights
of his ancestors, and he will fight for his children's
land."[101] Of the Guanches of Teneriffe we are told that
patriotism was {168} their chief virtue.[102] The same quality
distinguishes the Yorubas of West Africa; "no race of men," says
Mr. MacGregor, "could be more devoted to their country."[103]
Burckhardt writes:--"As to the attachment which a Bedouin
entertains for his own tribe, the deep-felt interest he takes in
its power and fame, and the sacrifices of every kind he is ready
to make for its prosperity--these are feelings rarely operating
with equal force in any other nation; and it is with an exulting
pride of conscious patriotism, not inferior to any which ennobled
the history of Grecian or Helvetian republics, that an Aeneze,
should he be suddenly attacked, seizes his lance, and waving it
over his head exclaims, 'I am an Aeneze.'"[104]
[Footnote 98: Adair, _History of the American Indians_, p. 378
_sq._ Heriot, _Travels through the Canadas_, p. 317. Loskiel,
_History of the Mission of the United Brethren among the
Indians_, i. 17 (Iroquois).]
[Footnote 99: Carver, _Travels through the Interior Parts of
North America_, p. 412.]
[Footnote 100: Ellis, _Polynesian Researches_, i. 128.]
[Footnote 101: Angas, _Savage Life and Scenes in Australia and
New Zealand_, i. 338. See also Travers, 'Life and Times of Te
Rauparaha,' in _Trans. and Proceed. New Zealand Institute_,
v. 22.]
[Footnote 102: Bory de St. Vincent, _Essais sur les Isles
Fortunées_, p. 70.]
[Footnote 103: MacGregor, 'Lagos, Abeokuta, and the Alake,' in
_Jour. African Soc._ 1904, p. 466.]
[Footnote 104: Burckhardt, _Notes on the Bedouins and Wahábys_,
p. 205.]
Many of the elements out of which patriotism proper has grown are
clearly distinguishable among savages, even the very lowest. We
have previously noticed the savage's attachment to members of his
own community or tribe. Combined with this is his love of his
native place, and of the mode of life to which he is habituated.
There is a touching illustration of this feeling in the behaviour
of the wild boy who had been found in the woods near
Aveyron--where he had spent most part of his young life in
perfect isolation from all human beings--when he, after being
removed to Paris, was once taken back to the country, to the vale
of Montmorence. Joy was painted in his eyes, in all the motions
and postures of his body, at the view of the hills and the woods
of the charming valley; he appeared more than ever restless and
savage, and "in spite of the most assiduous attention that was
paid to his wishes, and the most affectionate regard that was
expressed for him, he seemed to be occupied only with an anxious
desire of taking his flight."[105] How much greater must not the
love of home be in him who has there his relatives and friends!
Mr. Howitt tells us of {169} an Australian native who, on leaving
his camp with him for a trip of about a week, burst into tears,
saying to himself once and again, "My country, my people, I shall
not see them."[106] The Veddahs of Ceylon "would exchange their
wild forest life for none other, and it was with the utmost
difficulty that they could be induced to quit even for a short
time their favourite solitude."[107] The Stiêns of Cambodia are
so strongly attached to their forests and mountains that to leave
them seems almost like death.[108] Solomon Islanders not seldom
die from home-sickness on their way to the Fiji or Queensland
plantations.[109] The Hovas of Madagascar, when setting out on a
journey, often take with them a small portion of their native
earth, on which they gaze during their absence, invoking their
god that they may be permitted to return to restore it to the
place from which it was taken.[110] Mr. Crawfurd observes that in
the Malay Archipelago the attachment to the native spot is
strongest with the agricultural tribes;[111] but, though a
settled life is naturally most favourable to its development,
this feeling is not inconsistent with nomadism. The Nishinam, who
are the most nomadic of all the Californian tribes, have very
great attachment for the valley or flat which they count their
home.[112]
[Footnote 105: Itard, _Account of the Discovery and Education of
a Savage Man_, p. 70 _sqq._]
[Footnote 106: Brough Smyth, _Aborigines of Victoria_, ii. 305.]
[Footnote 107: Hartshorne, 'Weddas,' in _Indian Antiquary_,
viii. 317.]
[Footnote 108: Mouhot, _Travels in the Central Parts of
Indo-China_, i. 243.]
[Footnote 109: Guppy, _op. cit._ p. 167.]
[Footnote 110: Ellis, _History of Madagascar_, i. 141.]
[Footnote 111: Crawfurd, _History of the Indian Archipelago_,
i. 84.]
[Footnote 112: Powers, _op. cit._ p. 318 _sq._ For other
instances of love of home among uncivilised races see von Spix
and von Martius, _op. cit._ ii. 242, note (Coroados); von
Kotzebue, _op. cit._ iii. 45 (Indians of California); Gibbs,
_Tribes of Western Washington and North-Western Oregon_, p. 187;
Elliott, _Report of the Seal Islands of Alaska_, p. 240; Hooper,
_Ten Months among the Tents of the Tuski_, p. 209; von Siebold,
_Aino auf der Insel Yesso_, p. 11; Mallat, _Les Philippines_, ii.
95 (Negritos); von Brenner, _Besuch bei den Kannibalen Sumatras_,
p. 194 (Bataks); Earl, _Papuans_, p. 126 (natives of Rotti, near
Timor); Ling Roth, _Aborigines of Tasmania_, p. 46; Dieffenbach,
_Travels in New Zealand_, ii. 174; Cumming, _In the Himalayas_,
p. 404 (Paharis); Lane, _Manners and Customs of the Modern
Egyptians_, p. 302 (Bedawees); Tristram, _Great Sahara_, p. 193
_sq._ (Beni M'zab); Burton, _Zanzibar_, ii. 96 (Wanika); _Emin
Pasha in Central Africa_, p. 315 (Monbuttu); Andersson, _Lake
Ngami_, p. 198 (Ovambo); Rowley, _Africa Unveiled_, p. 63 _sq._
(Kroos of the Grain Coast below Liberia); Price, 'Quissama
Tribe,' in _Jour. Anthr. Inst._ i. 187.]
{170} Moreover, as we have noticed above, savages have the
greatest regard for their native customs and institutions.[113]
Many of them have displayed that love of national independence
which gives to patriotism its highest fervour.[114] And among
some uncivilised peoples, at least, the force of racial and
linguistic unity shows itself even outside the social or
political unit. Burckhardt observes that the Bedouins are not
only solicitous for the honour of their own respective tribes,
but consider the interests of all other tribes as more or less
attached to their own, and frequently evince a general _esprit de
corps_, lamenting "the losses of any of their tribes occasioned
by attacks from settlers or foreign troops, even though at war
with those tribes."[115] A Tongan "loves the island on which he
was born, in particular, and all the Tonga islands generally, as
being one country, and speaking one language."[116] Travellers
have noticed how gratifying it is, when visiting an uncultured
people, to know a little of their language; there is at once a
sympathetic link between the native and the stranger.[117] Even
the almost inaccessible Berber of the Great Atlas, in spite of
his excessive hatred of the European, will at once give you a
kindly glance as soon as you, to his astonishment, utter to him a
few words in his own tongue.
[Footnote 113: See _supra_, i. 118 _sq._]
[Footnote 114: _Cf._ Dobrizhoffer, _Account of the Abipones_, ii.
95, 105; Lomonaco, 'Sulle razze indigene del Brasile,' in
_Archivio per l'antropologia e la etnologia_, xix. 57 (Tupis);
Brett, _Indian Tribes of Guiana_, p. 348; Schoolcraft, _Indian
Tribes of the United States_, iii. 189 (Iroquois); Nansen,
_Eskimo Life_, p. 323 (Greenlanders); Macpherson, _Memorials of
Service in India_, p. 81 (Kandhs); Sarasin, _op. cit._ iii. 530
(Veddahs); Casati, _Ten Years in Equatoria_, i. 188, 304 (Negroes
of Central Africa); Fritsch, _Die Eingeborenen Süd-Afrika's_, p.
422 _sq._ (Bushmans).]
[Footnote 115: Burckhardt, _Bedouins and Wahábys_, p. 205.]
[Footnote 116: Mariner, _Natives of the Tonga Islands_, ii. 156.]
[Footnote 117: See Stokes, _Discoveries in Australia_, ii. 25.]
Like other species of the altruistic sentiment, patriotism is apt
to overestimate the qualities of the object for which it is felt;
and it does so all the more readily as love of one's country is
almost inseparably intermingled with love of one's self. The
ordinary, typical patriot has a strong will to believe that his
nation is the best. If, as many {171} people nowadays seem to
maintain, such a will to believe is an essential characteristic
of true patriotism, savages are as good patriots as anybody. In
their intercourse with white men they have often with
astonishment noticed the arrogant air of superiority adopted by
the latter; in their own opinion they are themselves vastly
superior to the whites. According to Eskimo beliefs, the first
man, though made by the Great Being, was a failure, and was
consequently cast aside and called _kob-lu-na_, which means
"white man"; but a second attempt of the Great Being resulted in
the formation of a perfect man, and he was called _in-nu_, the
name which the Eskimo give to themselves.[118] Australian
natives, on being asked to work, have often replied, "White
fellow works, not black fellow; black fellow gentleman."[119]
When anything foolish is done, the Chippewas use an expression
which means "as stupid as a white man."[120] If a South Sea
Islander sees a very awkward person, he says, "How stupid you
are; perhaps you are an Englishman."[121] Mr. Williams tells us
of a Fijian who, having been to the United States, was ordered by
his chiefs to say whether the country of the white man was better
than Fiji, and in what respects. He had not, however, gone far in
telling the truth, when one cried out, "He is a prating fellow";
another, "He is impudent"; and some said, "Kill him."[122] The
Koriaks are more argumentative; in order to prove that the
accounts they hear of the advantages of other countries are so
many lies, they say to the stranger, "If you could enjoy these
advantages at home, what made you take so much trouble to come to
us?"[123] But the Koriaks, in their turn are looked down upon by
their neighbours, the Chukchi, who call the surrounding peoples
old women, only fit to guard their flocks, and to be their
attendants.[124] The Ainu despise the Japanese {172} just as much
as the Japanese despise them, and are convinced of "the
superiority of their own blood and descent over that of all other
peoples in the world."[125] Even the miserable Veddah of Ceylon
has a very high opinion of himself, and regards his civilised
neighbours with contempt.[126] As is often the case with
civilised men, savages attribute to their own people all kinds of
virtue in perfection. The South American Mbayás, according to
Azara, "se croient la nation la plus noble du monde, la plus
généreuse, la plus exacte à tenir sa parole avec loyauté, et la
plus vaillante."[127] The Eskimo of Norton Sound speak of
themselves as _yu'-p[)i]k_, meaning fine or complete people,
whereas an Indian is termed _iñ-k[)i]-l[)i]k_, from a word which
means "a louse egg."[128] When a Greenlander saw a foreigner of
gentle and modest manners, his usual remark was, "He is almost as
well-bred as we," or, "He begins to be a man," that is, a
Greenlander.[129] The savage regards his people as the people, as
the root of all others, and as occupying the middle of the earth.
The Hottentots love to call themselves "the men of men."[130] The
Indians of the Ungava district, Hudson Bay, give themselves the
name _nenenot_, that is, true or ideal red men.[131] In the
language of the Illinois Indians the word _illinois_ means
"men"--"as if they looked upon all other Indians as beasts."[132]
The aborigines of Hayti believed that their island was the first
of all things, that the sun and moon issued from one of its
caverns, and men from another.[133] Each Australian tribe, says
Mr. Curr, regards its country as the centre of the earth, which
in most cases is believed not to extend more than a couple of
hundred miles or so in any direction.[134]
[Footnote 118: Hall, _Arctic Researches_, p. 566 _sq._]
[Footnote 119: Hale, _U.S. Exploring Expedition. Vol. VI.
Ethnography and Philology_, p. 109.]
[Footnote 120: Keating, _Expedition to the Source of St. Peter's
River_, ii. 168. See also Boller, _Among the Indians_, p. 54 _sq._]
[Footnote 121: Williams, _Missionary Enterprises in the South Sea
Islands_, p. 514.]
[Footnote 122: Williams and Calvert, _Fiji_, p. 105.]
[Footnote 123: Krasheninnikoff, _History of Kamschatka_, p. 224.]
[Footnote 124: Sauer, _op. cit._ p. 255.]
[Footnote 125: Batchelor, 'Notes on the Ainu,' in _Trans. Asiatic
Soc. Japan_, x. 211 _sq._ Howard, _Life with Trans-Siberian
Savages_, p. 182.]
[Footnote 126: Nevill, in _Taprobanian_, i. 192. Sarasin, _op.
cit._ iii. 530, 534. 553.]
[Footnote 127: Azara, _Voyages dans l'Amérique méridionale_,
ii. 107.]
[Footnote 128: Nelson, 'Eskimo about Bering Strait,' in _Ann.
Rep. Bur. Ethn._ xviii. 306 _sq._]
[Footnote 129: Cranz, _History of Greenland_, i. 126.]
[Footnote 130: Kidd, _The Essential Kafir_, p. 92.]
[Footnote 131: Turner, 'Ethnology of the Ungava District,' in
_Ann. Rep. Bur. Ethn._ xi. 267.]
[Footnote 132: Marquette, _Recit des voyages_, p. 47 _sq._]
[Footnote 133: Brett, _Indian Tribes of Guiana_, p. 376.]
[Footnote 134: Curr, _The Australian Race_, i. 50. For other
instances of national conceit or pride among savages see Darwin,
_Journal of Researches_, p. 207 (Fuegians); von den Steinen,
_Unter den Naturvölkern Zentral-Brasiliens_, p. 332 (Bakaïri);
von Humboldt, _Personal Narrative of Travels to the Equinoctial
Regions of the New Continent_, v. 423, and Brett, _op. cit._
p. 128 (Guiana Indians); James, _Expedition to the Rocky Mountains_,
i. 320 (Omahas); Murdoch, in _Ann. Rep. Bur. Ethn._ ix. 42 (Point
Barrow Eskimo); Krasheninnikoff, _op. cit._ p. 180 (Kamchadales);
Brough Smyth, _op. cit._ ii. 284 (Australian natives);
Macpherson, _op. cit._ p. 67 (Kandhs); Munzinger, _Ueber die
Sitten und das Recht der Bogos_, p. 94; Andersson, _Lake Ngami_,
p. 198 (Ovambo).]
{173} We meet with similar feelings and ideas among the nations
of archaic culture. The Chinese are taught to think themselves
superior to all other peoples. In their writings, ancient and
modern, the word "foreigner" is regularly joined with some
disrespectful epithet, implying or expressing the ignorance,
brutality, obstinacy, or meanness of alien nations, and their
obligations to or dependence upon China.[135] To Confucius
himself China was "the middle kingdom," "the multitude of great
states," "all under heaven," beyond which were only rude and
barbarous tribes.[136] According to Japanese ideas, Nippon was
the first country created, and the centre of the world.[137]
The ancient Egyptians considered themselves as the peculiar
people, specially loved by the gods. They alone were termed
"men" (_romet_); other nations were negroes, Asiatics, or
Libyans, but not men; and according to the myth these nations
were descended from the enemies of the gods.[138] The national
pride of the Assyrians, so often referred to by the Hebrew
prophets,[139] is conspicuous everywhere in their cuneiform
inscriptions: they are the wise, the brave, the powerful, who,
like the deluge, carry away all resistance; their kings are the
"matchless, irresistible"; and their gods are much exalted above
the gods of all other nations.[140] To the Hebrews their own
land was "an exceeding good land," "flowing with milk and honey,"
"the glory of all lands";[141] and its inhabitants were a holy
{174} people which the Lord had chosen "to be a special people
unto Himself, above all people that are upon the face of the
earth."[142] Concerning the ancient Persians, Herodotus
writes:--"They look upon themselves as very greatly superior in
all respects to the rest of mankind, regarding others as
approaching to excellence in proportion as they dwell nearer
to them; whence it comes to pass that those who are the farthest
off must be the most degraded of mankind."[143] To this day the
monarch of Persia retains the title of "the Centre of the
Universe"; and it is not easy to persuade a native of Isfahan
that any European capital can be superior to his native
city.[144] The Greeks called Delphi--or rather the round stone in
the Delphic temple--"the navel" or "middle point of the
earth";[145] and they considered the natural relation between
themselves and barbarians to be that between master and slave.[146]
[Footnote 135: Philip, _Life and Opinions of the Rev. W. Milne_,
p. 257. _Cf._ Staunton, in _Narrative of the Chinese Embassy to
the Khan of the Tourgouth Tartars_, p. viii.]
[Footnote 136: Legge, _Chinese Classics_, i. 107. See also Giles,
_op. cit._ ii. 116, n. 2.]
[Footnote 137: Griffis, _Religions of Japan_, p. 207.]
[Footnote 138: Erman, _Life in Ancient Egypt_, p. 32.]
[Footnote 139: _Isaiah_, x. 7 _sqq._; xxxvii. 24 _sqq._
_Ezekiel_, xxxi. 10 _sq._ _Zephaniah_, ii. 15.]
[Footnote 140: Mürdter-Delitzsch, _Geschichte Babyloniens und
Assyriens_, p. 104.]
[Footnote 141: _Numbers_, xiii. 27; xiv. 7. _Ezekiel_, xx. 6, 15.]
[Footnote 142: _Deuteronomy_, vii. 6.]
[Footnote 143: Herodotus, i. 134.]
[Footnote 144: Rawlinson, in his translation of Herodotus, i. 260
_sq._ n. 5.]
[Footnote 145: Pindar, _Pythia_, vi. 3 _sq._ _Idem_, _Nemea_,
vii. 33 _sq._ Aeschylus, _Eumenides_, 40, 166. Sophocles,
_[OE]dipus Tyrannus_, 480, 898. Livy, xxxviii. 48. _Cf._
Herodotus' theory of "extremities" (iii. 115 _sq._), and
Rawlinson's commentary, in his translation of Herodotus, i. 260
_sq._ n. 6.]
[Footnote 146: Euripides, _Iphigenia in Aulide_, 1400 _sq._
Aristotle, _Politica_, i. 2, 6, pp. 1252 b, 1255 a.]
In the archaic State the national feeling is in some cases
greatly strengthened by the religious feeling; whilst in other
instances religion inspires devotion to the family, clan, or
caste rather than to the nation, or constitutes a tie not only
between compatriots but between members of different political
communities. The ancestor-worship of the Chinese has hardly been
conducive to genuine patriotism. Whatever devotion to the common
weal may have prevailed among the Vedic Aryans, it has certainly
passed away beneath the influence of Brahmanism, or been narrowed
down to the caste, the village, or the family.[147] The
Zoroastrian Ahura-Mazda was not a national god, but "the god of
the Aryans," that is, of all the peoples who inhabited ancient
Iran; and these were constantly at war {175} with one
another.[148] Muhammedans, whilst animated with a common hatred
towards the Christians, show little public spirit in relation to
their respective countries,[149] composed as they are of a
variety of loosely connected, often very heterogeneous elements,
ruled over by a monarch whose power is in many districts more
nominal than real. In ancient Greece and Rome patriotism no doubt
contained a religious element--each state and town had its
tutelary gods and heroes, who were considered its proper
masters;[150] but in the first place it was free citizens' love
of their native institutions, a civic virtue which grew up on the
soil of liberty. When the two Spartans who were sent to Xerxes to
be put to death were advised by one of his governors to surrender
themselves to the king, their answer was, "Had you known what
freedom is, you would have bidden us fight for it, not with the
spear only, but with the battle-axe."[151] And of the Athenians
who lived at the time of the Persian wars, Demosthenes said that
they were ready to die for their country rather than to see it
enslaved, and that they considered the outrages and insults which
befell him who lived in a subjugated city to be more terrible
than death.[152] In classical antiquity "the influence of
patriotism thrilled through every fibre of moral and intellectual
life."[153] In some Greek cities emigration was prohibited by
law, at Argos even on penalty of death.[154] Plato, in the
Republic, sacrificed the family to the interests of the State.
Cicero placed our duty to our country next after our duty to the
immortal gods and before our duty to our parents.[155] "Of all
connections," he says, "none is more weighty, none is more dear,
than that between every individual and his country. Our parents
are dear to us; {176} our children, our kinsmen, our friends, are
dear to us; but our country comprehends alone all the endearments
of us all. What good man would hesitate to die for her if he
could do her service?"[156]
[Footnote 147: Wheeler, _History of India_, ii. 586 _sq._ See
also Leist, _Alt-arisches Jus Gentium_, p. 529.]
[Footnote 148: Meyer, _Geschichte des Alterthums_, i. 540.
Spiegel, _Erânische Alterthumskunde_, iii. 687 _sqq._]
[Footnote 149: Polak, _Persien_, i. 12. Urquhart, _Spirit of the
East_, ii. 427, 439 (Turks). Burckhardt, _Bedouins and Wahábys_,
p. 204 _sq._ (Turks and Arab settlers).]
[Footnote 150: Leist, _Alt-arisches Jus Gentium_, p. 529.
Schmidt, _Die Ethik der alten Griechen_, ii. 221.]
[Footnote 151: Herodotus, vii. 134 _sq._]
[Footnote 152: Demosthenes, _De Corona_, 205, p. 296.]
[Footnote 153: Lecky, _History of European Morals_, i. 200.]
[Footnote 154: Plutarch, _Lycurgus_, xxvii. 5. Ovid,
_Metamorphoses_, xv. 29.]
[Footnote 155: Cicero, _De officiis_, i. 45 (160). _Cf._ _ibid._
iii. 23 (90).]
[Footnote 156: _Ibid._ i. 17 (57). _Cf._ Cicero, _De legibus_,
ii. 2, (5).]
The duty of patriotism springs, in the first instance, from the
patriotic feeling; when the love of country is common in a nation
public resentment is felt towards him who does not act as that
sentiment requires him to act. Moreover, lack of patriotism in a
person may also be resented by his fellow-countrymen as an injury
done to themselves; and as we have seen before, anger, and
especially anger felt by a whole community, has a tendency to
lead to moral disapproval. For analogous reasons deeds of
patriotism are apt to evoke moral praise. However, in benefiting
his own people the patriot may cause harm to other people; and
where the altruistic sentiment is broad enough to extend beyond
the limits of the State and strong enough to make its voice heard
even in competition with the love of country and the love of
self, his conduct may consequently be an object of reproach. At
the lower stages of civilisation the interests of foreigners are
not regarded at all, except when sheltered by the rule of
hospitality; but gradually, owing to circumstances which will be
discussed in the following chapter, altruism tends to expand, and
men are at last considered to have duties to mankind at large.
The Chinese moralists inculcated benevolence to all men without
making any reference to national distinctions.[157] Mih-tsze, who
lived in the interval between Confucius and Mencius, even taught
that we ought to love all men equally; but this doctrine called
forth protests as abnegating the peculiar devotion due to
relatives.[158] In Thâi-Shang it is said that a good man will
feel kindly towards every creature, and should not hurt even the
insect tribes, grass, and trees.[159] Buddhism {177} enjoins the
duty of universal love:--"As a mother, even at the risk of her
own life, protects her son, her only son, so let a man cultivate
goodwill without measure toward all beings, . . . unhindered love
and friendliness toward the whole world, above, below,
around."[160] According to the Hindu work Panchatantra it is the
thought of little-minded persons to consider whether a man is one
of ourselves or an alien, the whole earth being of kin to him who
is generously disposed.[161] In Greece and Rome philosophers
arose who opposed national narrowness and prejudice. Democritus
of Abdera said that every country is accessible to a wise man,
and that a good soul's fatherland is the whole earth.[162] The
same view was expressed by Theodorus, one of the later Cyrenaics,
who denounced devotion to country as ridiculous.[163] The Cynics,
in particular, attached slight value to the citizenship of any
special state, declaring themselves to be citizens of the
world.[164] But, as Zeller observes, in the mouth of the Cynic
this doctrine was meant to express not so much the essential
oneness of all mankind, as the philosopher's independence of
country and home.[165] It was the Stoic philosophy that first
gave to the idea of a world-citizenship a definite positive
meaning, and raised it to historical importance. The citizen of
Alexander's huge empire had in a way become a citizen of the
world; and national dislikes were so much more readily overcome
as the various nationalities comprised in it were united not only
under a common government but also in a common culture.[166]
Indeed, the founder of Stoicism was himself only half a Greek.
But there is also an obvious connection between the cosmopolitan
idea and the Stoic {178} system in general.[167] According to the
Stoics, human society has for its basis the identity of reason in
individuals; hence we have no ground for limiting this society to
a single nation. We are all, says Seneca, members of one great
body, the universe; "we are all akin by Nature, who has formed us
of the same elements, and placed us here together for the same
end."[168] "If our reason is common," says Marcus Aurelius,
"there is a common law, as reason commands us what to do and what
not to do; and if there is a common law we are fellow-citizens;
if this is so, we are members of some political community--the
world is in a manner a state."[169] To this great state, which
includes all rational beings, the individual states are related
as the houses of a city are to the city collectively;[170] and
the wise man will esteem it far above any particular community in
which the accident of birth has placed him.[171]
[Footnote 157: _Lun Yü_, xii. 22. Mencius, vii. 1. 45. Douglas,
_Confucianism and Taouism_, pp. 108, 205.]
[Footnote 158: Edkins, _Religion in China_, p. 119. Legge,
_Chinese Classics_, ii. 476, n. 45. de Groot, _Religious System
of China_, (vol. ii. book) i. 684.]
[Footnote 159: _Thâi-Shang_, 3.]
[Footnote 160: Quoted by Rhys Davids, _Hibbert Lectures on the
History of Buddhism_, p. 111.]
[Footnote 161: Muir, _Religious and Moral Sentiments rendered
from Sanskrit Writers_, p. 109.]
[Footnote 162: Stobæus, _Florilegium_, xl. 7, vol. ii. 80. _Cf._
Natorp, _Die Ethika des Demokritos_, p. 117, n. 41.]
[Footnote 163: Diogenes Laertius, _Vitæ philosophorum_, ii. 98
_sq._]
[Footnote 164: _Ibid._ vi. 12, 63, 72, 98. Epictetus,
_Dissertationes_, iii. 24. 66. Stobæus, xlv. 28, vol. ii.
252.]
[Footnote 165: Zeller, _Socrates and the Socratic Schools_,
p. 326 _sq._ _Idem_, _Stoics, Epicureans, and Sceptics_,
p. 327.]
[Footnote 166: _Cf._ Plutarch, _De Alexandri Magni fortuna aut
virtute_, i. 6, p. 329.]
[Footnote 167: See Zeller, _Stoics, &c._ p. 327 _sq._]
[Footnote 168: Seneca, _Epistulæ_, xcv. 52.]
[Footnote 169: Marcus Aurelius, _Commentarii_, iv. 4. _Cf._
_ibid._ vi. 44, and ix. 9; Cicero, _De legibus_, i. 7 (23);
Epictetus, _Dissertationes_, i. 13. 3.]
[Footnote 170: Marcus Aurelius, iii. 11.]
[Footnote 171: Seneca, _De otio_, iv. 1. _Idem_, _Epistulæ_,
lxviii. 2. Epictetus, _Dissertationes_, iii. 22. 83 _sqq._]
But the Roman ideal of patriotism, with its utter disregard for
foreign nations,[172] was not opposed by philosophy alone: it met
with an even more formidable antagonist in the new religion. The
Christian and the Stoic rejected it on different grounds: whilst
the Stoic felt himself as a citizen of the world, the Christian
felt himself as a citizen of heaven, to whom this planet was only
a place of exile. Christianity was not hostile to the State.[173]
At the very time when Nero committed his worst atrocities, St.
Paul declared that there is no power but of God, and that
whosoever resists the power resists the ordinance of God and
shall be condemned;[174] and Tertullian says that all Christians
send up their prayers for the life of the emperors, for their
ministers, for magistrates, for the good of the {179} State and
the peace of the Empire.[175] But the emperor should be obeyed
only so long as his commands do not conflict with the law of
God--a Christian ought rather to suffer like Daniel in the lions'
den than sin against his religion;[176] and nothing is more
entirely foreign to him than affairs of State.[177] Indeed, in
the whole Roman Empire there were no men who so entirely lacked
patriotism as the early Christians. They had no affection for
Judea, they soon forgot Galilee, they cared nothing for the glory
of Greece and Rome.[178] When the judges asked them which was
their country they said in answer, "I am a Christian."[179] And
long after Christianity had become the religion of the Empire,
St. Augustine declared that it matters not, in respect of this
short and transitory life, under whose dominion a mortal man
lives, if only he be not compelled to acts of impiety or
injustice.[180] Later on, when the Church grew into a political
power independent of the State, she became a positive enemy of
national interests. In the seventeenth century a Jesuit general
called patriotism "a plague and the most certain death of
Christian love."[181]
[Footnote 172: _Cf._ Lactantius, _Divinæ Institutiones_, vi. ('De
vero cultu'), 6 (Migne, _Patrologiæ cursus_, vi. 655).]
[Footnote 173: _St. Matthew_, xxii. 21. _1 Peter_, ii. 13 _sq._]
[Footnote 174: _Romans_, xiii. 1 _sq._ See also _Titus_, iii. 1.]
[Footnote 175: Tertullian, _Apologeticus_, 39 (Migne, _op. cit._
i. 468). See also Ludwig, _Tertullian's Ethik_, p. 98 _sq._]
[Footnote 176: Tertullian, _De idololatria_, 15 (Migne, _op.
cit._ i. 684).]
[Footnote 177: Tertullian, _Apologeticus_, 38 (Migne, _op. cit._
i. 465):--"Nec ulla magis res aliena, quam publica."]
[Footnote 178: See Renan, _Hibbert Lectures on the Influence of
Rome on Christianity_, p. 28.]
[Footnote 179: Le Blant, _Inscriptions chrétiennes_, i. 128.]
[Footnote 180: St. Augustine, _De Civitate Dei_, v. 17.]
[Footnote 181: von Eicken, _Geschichte und System der
mittelalterlichen Weltanschauung_, p. 809.]
With the fall of the Roman Empire patriotism died out in Europe,
and remained extinct for centuries. It was a feeling hardly
compatible either with the migratory life of the Teutonic tribes
or with the feudal system, which grew up wherever they fixed
their residence. The knights, it is true, were not destitute of
the natural affection for home. When Aliaumes is mortally wounded
by Géri li Sors he exclaims, "Holy Virgin, I shall never more see
Saint-Quentin nor Néèle";[182] and the troubadour Bernard de
Ventadour touchingly sings, "Quan la doussa aura venta--Deves
nostre païs,--M'es veiaire que senta--Odor de {180}
Paradis."[183] But to a man of the Middle Ages "his country"
meant little more than the neighbourhood in which he lived.[184]
Kingdoms existed, but no nations. The first duty of a vassal was
to be loyal to his lord;[185] but no national spirit bound
together the various barons of one country. A man might be the
vassal of the king of France and of the king of England at the
same time; and often, from caprice, passion, or sordid interest,
the barons sold their services to the enemies of the kingdom.
The character of his knighthood was also perpetually pressing
the knight to a course of conduct distinct from all national
objects.[186] The cause of a distressed lady was in many
instances preferable to that of the country to which he belonged
--as when the Captal de Bouche, though an English subject, did
not hesitate to unite his troops with those of the Compte de
Foix to relieve the ladies in a French town, where they were
besieged and threatened with violence by the insurgent
peasantry.[187] When a knight's duties towards his country are
mentioned in the rules of Chivalry they are spoken of as duties
towards his lord:--"The wicked knight," it is said, "that aids
not his earthly lord and natural country against another prince,
is a knight without office."[188] Far from being, as M. Gautier
asserts,[189] the object of an express command in the code of
Chivalry, true patriotism had there no place at all. It was not
known as an ideal, still less did it exist as a reality, among
either knights or commoners. As a duke of Orleans could bind
himself by a fraternity of arms and alliance to a duke of
Lancaster,[190] so English merchants were in the habit of
supplying nations at war against England with provisions bought
at English fairs, and weapons wrought by English hands.[191] If,
as M. Gaston Paris maintains, a {181} deep feeling of national
union had inspired the Chanson de Roland,[192] it is a strange,
yet undeniable, fact that no distinct trace of this feeling
displayed itself in the mediæval history of France before the
English wars.
[Footnote 182: _Li Romans de Raoul de Cambrai_, 210, p. 185.]
[Footnote 183: Quoted by Gautier, _La Chevalerie_, p. 64.]
[Footnote 184: See Cibrario, _Della economia politica del medio
eve_, i. 263; de Crozals, _Histoire de la civilization_, ii. 287.]
[Footnote 185: _Ordre of Chyualry_, foll. 13 b. 32 b.]
[Footnote 186: See Mills, _History of Chivalry_, i. 140 _sq._]
[Footnote 187: Scott, _Essay on Chivalry_, p. 31.]
[Footnote 188: _Ordre of Chyualry_, fol. 14 b.]
[Footnote 189: Gautier, _op. cit._ p. 33.]
[Footnote 190: Sainte-Palaye, _Mémoires sur l'ancienne
Chevalerie_, ii. 72.]
[Footnote 191: Pike, _History of Crime in England_, i. 264 _sq._]
[Footnote 192: Paris, _La poésie du moyen age_, p. 107. M.
Gautier says (_op. cit._ p. 61) that Roland is "la France faite
homme."]
Besides feudalism and the want of political cohesion, there were
other factors that contributed to hinder the development of
national personality and patriotic devotion. This sentiment
presupposes not only that the various parts of which a country is
composed shall have a vivid feeling of their unity, but also that
they, united, shall feel themselves as a nation clearly distinct
from other nations. In the Middle Ages national differences were
largely obscured by the preponderance of the Universal Church, by
the creation of the Holy Roman Empire, by the prevalence of a
common language as the sole vehicle of mental culture, and by the
undeveloped state of the vernacular tongues. To make use of the
native dialect was a sign of ignorance, and to place worldly
interests above the claims of the Church was impious. When
Macchiavelli declared that he preferred his country to the safety
of his soul, people considered him guilty of blasphemy; and when
the Venetians defied the Papal thunders by averring that they
were Venetians in the first place, and only Christians in the
second, the world heard them with amazement.[193]
[Footnote 193: 'National Personality,' in _Edinburgh Review_,
cxciv. 133.]
In England the national feeling developed earlier than on the
Continent, no doubt owing to her insular position and freer
institutions; as Montesquieu observes, patriotism thrives best in
democracies.[194] At the time of the English Reformation the
sense of corporate national life had evidently gained
considerable strength, and the love of England has never been
expressed in more exquisite form than it was by Shakespeare. At
the same time the sense of patriotism was often grossly perverted
by religious {182} bigotry and party spirit.[195] Even champions
of liberty, like Lord Russell and Algernon Sidney, accepted
French gold in the hope of embarrassing the King; and Sidney went
so far as to try to instigate De Witt to invade England.
Loyalism, in particular, proved a much stronger incentive than
love of country. A loyalist like Strafford would have employed
half-savage Irish troops against his own countrymen, and the
Scotch Jacobites invited a French invasion.
[Footnote 194: Montesquieu, _De l'esprit des Lois_, iv. 5
(_[OE]uvres_, p. 206 _sq._).]
[Footnote 195: See _Edinburgh Review_, cxciv. 133, 136 _sq._;
Pearson, _National Life and Character_, p. 190.]
In France the development of the national feeling was closely
connected with the strengthening of the royal power and its
gradual victory over feudalism. The word _patrie_ was for the
first time used by Charles VII.'s chronicler, Jean Chartier, and
he also condemned as _renégats_ those Frenchmen who, at the end
of the hundred years war, fought on the side of the English.[196]
But patriotism was for a long time inseparably confounded with
loyalty to the sovereign. According to Bossuet "tout l'État est
en la personne du prince";[197] and Abbé Coyer observes that
Colbert believed _royaume_ and _patrie_ to signify one and the
same thing.[198] In the eighteenth century the spirit of
rebellion succeeded that of devotion to the king; but the
key-note of the great movement which led to the Revolution was
the liberty and equality of the individual, not the glory or
welfare of the nation. Men were looked upon as members of the
human race, rather than as citizens of any particular country. To
be a citizen of every nation, and not to belong to one's native
country alone, was the dream of French writers in the eighteenth
century.[199] "The true sage is a cosmopolitan," says a writer of
comedy.[200] Diderot asks which is the greater merit, to
enlighten the human race, which remains for ever, or to save
one's fatherland, which is {183} perishable.[201] According to
Voltaire patriotism is composed of self-love and prejudice,[202]
and only too often makes us the enemies of our fellow-men:--"Il
est clair qu'un pays ne peut gagner sans qu'un autre perde, et
qu'il ne peut vaincre sans faire des malheureux. Telle est donc
la condition humaine, que souhaiter la grandeur de son pays,
c'est souhaiter du mal à ses voisins."[203] In Germany, Lessing,
Goethe, and Schiller felt themselves as citizens of the world,
not of the German Empire, still less as Saxons or Suabians; and
Klopstock, with his enthusiasm for German nationality and
language, almost appeared eccentric.[204] Lessing writes
point-blank:--"The praise of being an ardent patriot is to my
mind the very last thing that I should covet; . . . I have no
idea at all of love of the Fatherland, and it seems to me at best
but an heroical weakness, which I can very readily dispense
with."[205]
[Footnote 196: Guibal, _Histoire du sentiment national en France
pendant la guerre de Cent ans_, p. 526 _sq._]
[Footnote 197: Legrand, _L'idée de patrie_, p. 20.]
[Footnote 198: Block, _Dictionnaire général de la politique_,
ii. 518.]
[Footnote 199: Texte, _Jean-Jacques Rousseau and the Cosmopolitan
Spirit in Literature_, p. 79.]
[Footnote 200: Palissot de Montenoy, _Les philosophes_, iii. 4,
p. 75.]
[Footnote 201: Diderot, _Essai sur les règnes de Claude et de
Néron_, ii. 75 (_[OE]uvres_, vi. 244).]
[Footnote 202: Voltaire, _Pensées sur l'administration publique_,
14 (_[OE]uvres complètes_, v. 351).]
[Footnote 203: _Idem_, _Dictionnaire philosophique_, art. Patrie
(_[OE]uvres complètes_, viii. 118).]
[Footnote 204: See Strauss, _Der alte und der neue Glaube_,
p. 259 _sq._]
[Footnote 205: Lessing, quoted by Ziegler, _Social Ethics_,
p. 121.]
The first French revolution marks the beginning of a new era in
the history of patriotism. It inspired the masses with passion
for the unity of the fatherland, the Republic "one and
indivisible." At the same time it declared all nations to be
brothers, and when it made war on foreign nations the object was
only to deliver them from their oppressors.[206] But gradually
the interest in the affairs of other countries grew more and more
selfish, the attempt to emancipate was absorbed in the desire to
subjugate; and this awoke throughout Europe a feeling which was
destined to become the most powerful force in the history of the
nineteenth century, the feeling of nationality. When Napoleon
introduced French administration in the countries whose
sovereigns he had deposed or degraded, the people resisted the
change. The resistance was popular, as the rulers were absent or
helpless, and it was national, being directed against foreign
institutions.{184} It was stirred by the feeling of national
rather than political unity, it was a protest against the
dominion of race over race. The national element in this movement
had in a manner been anticipated by the French Revolution itself.
The French people was regarded by it as an ethnological, not as
an historic, unit; descent was put in the place of tradition; the
idea of the sovereignty of the people uncontrolled by the past
gave birth to the idea of nationality independent of the political
influence of history. But, as has been truly remarked, men were
made conscious of the national element of the revolution by its
conquests, not in its rise.[207]
[Footnote 206: Block, _op. cit._ ii. 376.]
[Footnote 207: See 'Nationality,' in _Home and Foreign Review_,
i. 6 _sqq._]
Ever since, the racial feeling has been the most vigorous force
in European patriotism, and has gradually become a true danger to
humanity. Beginning as a protest against the dominion of one race
over another, this feeling led to a condemnation of every state
which included different races, and finally developed into the
complete doctrine that state and nationality should so far as
possible be coextensive.[208] According to this theory the
dominant nationality cannot admit the inferior nationalities
dwelling within the boundaries of the state to an equality with
itself, because, if it did, the state would cease to be national,
and this would be contrary to the principle of its existence; or
the weaker nationalities are compelled to change their language,
institutions, and individuality, so as to be absorbed in the
dominant race. And not only does the leading nationality assert
its superiority in relation to all others within the body
politic, but it also wants to assert itself at the expense of
foreign nations and races. To the nationalist all this is true
patriotism; love of country often stands for a feeling which has
been well described as love of more country.[209] But at the same
time opposite ideals are at work. The fervour of nineteenth
century nationalism has not been able to quench the {185}
cosmopolitan spirit. In spite of loud appeals made to racial
instincts and the sense of national solidarity, the idea has been
gaining ground that the aims of a nation must not conflict with
the interests of humanity at large; that our love of country
should be controlled by other countries' right to prosper and to
develop their own individuality; and that the oppression of
weaker nationalities inside the state and aggressiveness towards
foreign nations, being mainly the outcome of vainglory and greed,
are inconsistent with the aspirations of a good patriot, as well
as of a good man.
[Footnote 208: _Ibid._ p. 13 _sq._]
[Footnote 209: Robertson, _Patriotism and Empire_, p. 138.]
* * * * *
Our long discussion of moral ideas regarding such modes of
conduct as directly concern other men's welfare has at last come
to an end. We have seen that they may be ultimately traced to a
variety of sources: to the influence of habit or education, to
egoistic considerations of some kind or other which have given
rise to moral feelings, to notions of social expediency, to
disinterested likings or dislikes, and, above all, to sympathetic
resentment or sympathetic approval springing from an altruistic
disposition of mind. But how to account for this disposition? Our
explanation of that group of moral ideas which we have been
hitherto investigating is not complete until we have found an
answer to this important question. I shall therefore in the next
chapter examine the origin and development of the altruistic
sentiment.
CHAPTER XXXIV
THE ORIGIN AND DEVELOPMENT OF THE ALTRUISTIC SENTIMENT
THERE is one form of the altruistic sentiment which man shares
with all mammals and many other animals, namely, maternal affection.
As regards its origin various theories have been set forth.
According to Aristotle, parents love their children as being
portions of themselves.[1] A similar explanation of maternal
affection has been given by some modern writers.[2] Thus
Professor Espinas regards this sentiment as modified self-love
and love of property. The female, he says, at the moment when she
gives birth to little ones resembling herself, has no difficulty
in recognising them as the flesh of her flesh; the feeling she
experiences towards them is made up of sympathy and pity, but we
cannot exclude from it an idea of property which is the most
solid support of sympathy. She feels and understands up to a
certain point that these young ones which are herself at the same
time belong to her; the love of herself, extended to those who
have gone out from her, changes egoism into sympathy and the
proprietary instinct into an affectionate impulse.[3] This
hypothesis, however, seems to me to be very inadequate. It does
not explain why, for instance, a bird takes more care of her eggs
than of other matter segregated from {187} her body, which may
equally well be regarded as a part of herself. Nor does it
account for a foster-mother's affection for her adopted
offspring.[4] Of this many instances have been noticed in the
lower animals; and among some savage peoples adopted children are
said to be treated by their foster-parents with the same
affection as if they were their own flesh and blood.[5]
[Footnote 1: Aristotle, _Ethica Nicomachea_, viii. 12. 2 _sq._]
[Footnote 2: Hartley, _Observations on Man_, i. 496 _sq._ Fichte,
_Das System der Sittenlehre_, p. 433.]
[Footnote 3: Espinas, _Des sociétés animales_ (2nd ed.), p. 444
_sq._, quoted by Ribot, _Psychology of the Emotions_, p. 280.]
[Footnote 4: _Cf._ Spencer, _Principles of Psychology_, ii. 624.]
[Footnote 5: Murdoch, 'Ethnol. Results of the Point Barrow
Expedition,' in _Ann. Rep. Bur. Ethn._ ix. 419 (Point Barrow
Eskimo). Thomson, _Savage Island_, p. 135.]
A very different explanation of maternal love has been given by
Professor Bain. He derives parental affection from the "intense
pleasure in the embrace of the young." He observes that "such a
pleasure once created would associate itself with the prevailing
features and aspects of the young, and give to all of these their
very great interest. For the sake of the pleasure, the parent
discovers the necessity of nourishing the subject of it, and
comes to regard the ministering function as a part or condition
of the delight."[6] But if the satisfaction in animal contact
were at the bottom of the maternal feeling, conjugal affection
ought by far to surpass it in intensity; and yet, among the lower
races at least, the case is exactly the reverse, conjugal
affection being vastly inferior in degree to a mother's love of
her child. It may indeed be fairly doubted whether there is any
"intense pleasure" at all in embracing a new-born baby--unless it
be one's own. It seems much more likely that parents like to
touch their children because they love them, than that they love
them because they like to touch them. Attraction, showing itself
either by elementary movements of approach, or by contact, or by
the embrace, is the outward _expression_ of tenderness.[7]
Professor Bain himself observes that as anger reaches a
satisfying term by knocking some one down, love is completed and
satisfied with an embrace.[8] But this by no means implies that
the embrace is the cause of love; it {188} only means that love
has a tendency to express itself outwardly in an act of embrace.
[Footnote 6: Bain, _Emotions and the Will_, p. 140.]
[Footnote 7: Ribot, _op. cit._ p. 234.]
[Footnote 8: Bain, _op. cit._ p. 126.]
In the opinion of Mr. Spencer, again, parental love is
essentially love of the weak or helpless. This instinct, he
remarks, is not adequately defined as that which attaches a
creature to its young. Though most frequently and most strongly
displayed in this relation, the so-called parental feeling is
really excitable apart from parenthood; and the common trait of
the objects which arouse it is always relative weakness or
helplessness.[9] This hypothesis undoubtedly contains part of the
truth. That the maternal instinct is in some degree love of the
helpless is obvious from the fact that, among those of the lower
animals which are not gregarious, mother and young separate as
soon as the latter are able to shift for themselves; nay, in many
cases they are actually driven away by her. Moreover, in species
which are so constituted that the young from the very outset can
help themselves there is no maternal love. These facts indicate
where we have to look for the source of this sentiment. When the
young are born in a state of utter helplessness somebody must
take care of them, or the species cannot survive, or, rather,
such a species could never have come into existence. The maternal
instinct may thus be assumed to owe its origin to the survival of
the fittest, to the natural selection of useful spontaneous
variations.
[Footnote 9: Spencer, _Principles of Psychology_, ii. 623 _sq._
See also Hartley, _op. cit._ i. 497.]
This is also recognised by Mr. Spencer;[10] but his theory fails
to explain the indisputable fact that there is a difference
between maternal love and the mere love of the helpless. Even in
a gregarious species mothers make a distinction between their own
offspring and other young. During my stay among the mountaineers
of Morocco I was often struck by the extreme eagerness with which
in the evening, when the flock of ewes and the flock of lambs
were reunited, each mother sought for her own lamb, and each lamb
for its own mother. A similar {189} discrimination has been
noticed even in cases of conscious adoption. Brehm tells us of a
female baboon which had so capacious a heart that she not only
adopted young monkeys of other species, but stole young dogs and
cats which she continually carried about; yet her kindness did
not go so far as to share food with her adopted offspring,
although she divided everything quite fairly with her own young
ones.[11] To account for the maternal sentiment we must therefore
assume the existence of some other stimulus besides the signs of
helplessness, which produces, or at least strengthens, the
instinctive motor response in the mother. This stimulus, so far
as I can see, is rooted in the external relationship in which the
offspring from the beginning stand to the mother. She is in close
proximity to her helpless young from their tenderest age; and she
loves them because they are to her a cause of pleasure.
[Footnote 10: Spencer, _op. cit._ ii. 623.]
[Footnote 11: Darwin, _Descent of Man_, p. 70.]
In various animal species the young are cared for not only by the
mother, but by the father as well. This is the general rule among
birds: whilst the hatching of the eggs and the chief part of the
rearing-duties belong to the mother, the father acts as a
protector, and provides food for the family. Among most of the
mammals, on the other hand, the connections between the sexes are
restricted to the time of the rut, hence the father may not even
see his young. But there are also some mammalian species in which
male and female remain together even after the birth of the
offspring and the father defends his family against enemies.[12]
Among the Quadrumana this seems to be the rule.[13] All the best
authorities agree that the Gorilla and the Chimpanzee live in
families. When the female is pregnant the male builds a rude nest
in a tree, where she is delivered; and he spends the night
crouching at the foot of the tree, protecting the female and
their young one, which are in the nest above, from the nocturnal
attacks of leopards. Passing from the {190} highest monkeys to
the savage and barbarous races of men, we meet with the same
phenomenon. In the human race the family consisting of father,
mother, and offspring is probably a universal institution,
whether founded on a monogamous, polygynous, or polyandrous
marriage. And, as among the lower animals having the same habit,
whilst the immediate care of the children chiefly belongs to the
mother, the father is the guardian of the family.[14]
[Footnote 12: Westermarck, _History of Human Marriage_, p. 11
_sq._]
[Footnote 13: _Ibid._ p. 12 _sqq._]
[Footnote 14: Westermarck, _History of Human Marriage_, p. 14
_sqq._]
The stimuli to which the paternal instinct responds are
apparently derived from the same circumstances as those which
call into activity the maternal instinct, that is, the
helplessness and the nearness of the offspring. Wherever this
instinct exists, the father is near his young from the beginning,
living together with the mother. And here again the sentimental
response is in all probability the result of a process of natural
selection, which has preserved a mental disposition necessary for
the existence of the species. Among birds paternal care is
indispensable. Equal and continual warmth is the first
requirement for the development of the embryo and the
preservation of the young ones; and for this the mother almost
always wants the assistance of the father, who provides her with
necessaries, and sometimes relieves her of the brooding. Among
mammals, again, whilst the young at their tenderest age can never
do without the mother, the father's aid is generally not
required. That the Primates form an exception to this rule is
probably due to the small number of young, the female bringing
forth but one at a time, and besides, among the highest apes and
in man, to the long period of infancy.[15] If this is true we may
assume that the paternal instinct occurred in primitive man, as
it occurs, more or less strongly developed, among the anthropoid
apes and among existing savages.
[Footnote 15: See _ibid._ p. 20 _sqq._ Fiske, _Outlines of Cosmic
Philosophy_, ii. 342 _sq._]
By origin closely allied to the paternal feeling is the
attachment between individuals of different sex, which {191}
induces male and female to remain with one another beyond the
mere act of propagation till after the birth of the offspring. It
is obvious that, where the generative power is restricted to a
certain season--a peculiarity which primitive man seems to have
shared with other mammals[16]--it cannot be the sexual instinct
that causes the prolonged union of the sexes, nor can I conceive
any other egoistic motive that could account for this habit.
Considering that the union lasts till after the birth of the
offspring and that it is accompanied with parental care, I
conclude that it is for the benefit of the young that male and
female continue to live together. The tie which joins them seems
therefore, like parental affection, to be an instinct developed
through natural selection. The tendency to feel some attachment
to a being which has been the cause of pleasure--in this case
sexual pleasure--is undoubtedly at the bottom of this instinct.
Such a feeling may originally have induced the sexes to remain
united and the male to protect the female even after the sexual
desire was gratified; and if procuring great advantage to the
species in the struggle for existence, conjugal attachment would
naturally have developed into a specific characteristic.
[Footnote 16: Westermarck, _op. cit._ ch. ii.]
We have reason to believe that the germ of this sentiment
occurred already in our earliest human ancestors, that marriage,
in the natural history sense of the term, is a habit transmitted
to man from some ape-like progenitor.[17] In the course of
evolution conjugal affection has increased both in intensity and
complexity; but advancement in civilisation has not at every step
been favourable to its development. When restricted to men only,
a higher culture on the contrary tends to alienate husband and
wife, as is the case in Eastern countries and as was the case in
ancient Greece. Another fact leading to conjugal apathy is the
custom which compels the women before marriage to live strictly
apart from the men. In China it often happens that the parties
have not even seen each {192} other till the wedding day;[18] and
in Greece Plato urged in vain that young men and women should be
more frequently permitted to meet one another, so that there
should be less enmity and indifference in the married life.[19]
Conjugal love is both a cause and an effect of monogamy; but, as
we shall see subsequently, the course of civilisation does not
involve a steady progress towards stricter monogamy. The notions
about women also influence the emotions felt towards them; and we
have noticed that the great religions of the world have generally
held them in little regard.[20] In its fully developed form the
passion which unites the sexes is perhaps the most compound of
all human feelings. Mr. Spencer thus sums up the masterly
analysis he has given of it:--"Round the physical feeling forming
the nucleus of the whole, are gathered the feelings produced by
personal beauty, that constituting simple attachment, those of
reverence, of love, of approbation, of self-esteem, of property,
of love of freedom, of sympathy. These, all greatly exalted, and
severally tending to reflect their excitements on one another,
unite to form the mental state we call love."[21]
[Footnote 17: _Ibid._ _op. cit._ chs. i., iii.]
[Footnote 18: Katscher, _Bilder aus dem chinesischen Leben_, pp.
71, 84.]
[Footnote 19: Plato, _Leges_, vi. 771 _sq._]
[Footnote 20: _Supra_, i. 662 _sqq._]
[Footnote 21: Spencer, _Principles of Psychology_, i. 488.]
The duration of conjugal and parental feelings varies extremely.
Most birds, with the exception of those belonging to the
Gallinaceous family, when pairing do so once for all till either
one or the other dies;[22] whereas among the mammals man and
possibly some apes[23] are the only species whose conjugal unions
last any considerable time after the birth of the offspring.
Among many of the lower races of men lifelong marriages seem to
be the rule, and among a few separation is said to be entirely
unknown; but there is abundant evidence that marriage has, upon
the whole, become more durable with advancing civilisation.[24]
One cause of this is that conjugal affection has become more
lasting. And the greater duration of this sentiment may be
explained partly from the refinement {193} of the uniting
passion, involving appreciation of mental qualities which last
long after youth and beauty have passed away, and partly also
from the greater durability of parental feelings, which form a
tie not only between parents and children, but between husband
and wife.
[Footnote 22: Westermarck, _op. cit._ p. 11.]
[Footnote 23: _Ibid._ pp. 13, 14, 535.]
[Footnote 24: _Ibid._ ch. xxiii.]
The parental feelings originally only last as long as the young
are unable to shift for themselves--the paternal feeling possibly
less. As Mr. Fiske observes, "where the infancy is very short,
the parental feeling, though intense while it lasts, presently
disappears, and the offspring cease to be distinguished from
strangers of the same species. And in general the duration of the
feelings which insure the protection of the offspring is
determined by the duration of the infancy."[25] Among certain
savages parental love is still said to be restricted to the age
of helplessness. We are told that the affection of a Fuegian
mother for her child gradually decreases in proportion as the
child grows older, and ceases entirely when it reaches the age of
seven or eight; thenceforth the parents in no way meddle with the
affairs of their son, who may leave them if he likes.[26] When
the parental feelings became more complex, through the
association of other feelings, as those of property and pride,
they naturally tended to extend themselves beyond the limits of
infancy and childhood. But the chief cause of this extension
seems to lie in the same circumstances as made man a gregarious
animal. Where the grown-up children continued to stay with their
parents, parental affection naturally tended to be prolonged, not
only by the infusion into it of new elements, but by the direct
influence of close living together. It was, moreover, extended to
more distant descendants. The same stimuli as call forth kindly
emotions towards a person's own children evoke similar emotions
towards his grand- and great-grandchildren.
[Footnote 25: Fiske, _op. cit._ ii. 343.]
[Footnote 26: Bove, _Patagonia, Terra del Fuoco_, p. 133. See
also Wied-Neuwied, _Reise nach Brasilien_, ii. 40 (Botocudos), Im
Thurn, _Among the Indians of Guiana_, p. 219; Scaramucci and
Giglioli, 'Notizie sui Danakil,' in _Archivio per l'antropologia
e la etnologia_, xiv. 35.]
{194} It is an old truth that children's love of their parents is
generally much weaker than the parents' love of their children.
The latter is absolutely necessary for the subsistence of the
species, the former is not;[27] though, when a richer food-supply
favoured the formation of larger communities, filial attachment
must have been of advantage to the race.[28] No individual is
born with filial love. However, Aristotle goes too far when
saying that, whilst parents love their children from their birth
upward, "children do not begin to love their parents until they
are of a considerable age, and have got full possession of their
wits and faculties."[29] Under normal circumstances the infant
from an early age displays some attachment to its parents.
Professor Sully tells us of a girl, about seventeen months old,
who received her father after a few days absence with special
marks of affection, "rushing up to him, smoothing and stroking
his face and giving him all the toys in the room."[30] Filial
love is retributive; the agreeable feeling produced by benefits
received makes the individual look with pleasure and kindliness
upon the giver. And here again the affection is strengthened by
close living together, as appears from the cooling effect of long
separation of children from their parents. But the filial feeling
is not affection pure and simple, it is affection mingled with
regard for the physical and mental superiority of the parent.[31]
As the parental feeling is partly love of the weak and young, so
the filial feeling is partly regard for the strong and
(comparatively) old.
[Footnote 27: This observation was made already by Hutcheson
(_Inquiry into the Original of our Ideas of Beauty and Virtue_,
p. 219) and Adam Smith (_Theory of Moral Sentiments_, p. 199).
The latter wrote, a hundred years before the publication of 'The
Origin of Species,' that parental tenderness is a much stronger
affection than filial piety, because "the continuance and
propagation of the species depend altogether upon the former, and
not upon the latter."]
[Footnote 28: Darwin maintains (_Descent of Man_, p. 105) that
the filial affections have been to a large extent gained through
natural selection.]
[Footnote 29: Aristotle, _Ethica Nicomachea_, viii. 12. 2.]
[Footnote 30: Sully, _Studies of Childhood_, p. 243.]
[Footnote 31: See _supra_, i. 618 _sq._]
Besides parental, conjugal, and filial attachment we find among
all existing races of men altruism of the fraternal {195} type,
binding together children of the same parents, relatives more
remotely allied, and, generally, members of the same social unit.
But I am inclined to suppose that man was not originally a
gregarious animal, in the proper sense of the word, that he
originally lived in families rather than in tribes, and that the
tribe arose as the result of increasing food-supply, allowing the
formation of larger communities, combined with the advantages
which under such circumstances accrued from a gregarious life.
The man-like apes are not gregarious; and considering that some
of them are reported to be encountered in greater numbers in the
season when most fruits come to maturity,[32] we may infer that
the solitary life generally led by them is due chiefly to the
difficulty they experience in getting food at other times of the
year. That our earliest human or half-human ancestors lived on
the same kind of food, and required about the same quantities of
it as the man-like apes, seems to me a fairly legitimate
supposition; and from this I conclude that they were probably not
more gregarious than these apes. Subsequently man became
carnivorous; but even when getting his living by fishing or
hunting, he may still have continued as a rule this solitary kind
of life, or gregariousness may have become his habit only in
part. "An animal of a predatory kind," Mr. Spencer observes,
"which has prey that can be caught and killed without help,
profits by living alone: especially if its prey is much
scattered, and is secured by stealthy approach or by lying in
ambush. Gregariousness would here be a positive disadvantage.
Hence the tendency of large carnivores, and also of small
carnivores that have feeble and widely-distributed prey, to lead
solitary lives."[33] It is certainly a noteworthy fact that even
now there are rude savages who live rather in separate families
than in tribes; and that their solitary life is due to want of
{196} sufficient food is obvious from several facts which I have
stated in full in another place.[34] These facts, as it seems to
me, give much support to the supposition that the kind of food
man subsisted upon, together with the large quantities of it
which he wanted, formed in olden times a hindrance to a true
gregarious manner of living, except perhaps in some unusually
rich places.
[Footnote 32: Savage, 'Observations on the External Characters
and Habits of the _Troglodytes Niger_, in _Boston Journal of
Natural History_, iv. 384. _Cf._ von Koppenfels, 'Meine Jagden
auf Gorillas,' in _Die Gartenlaube_, 1877, p. 419.]
[Footnote 33: Spencer, _Principles of Psychology_, ii. 558.]
[Footnote 34: Westermarck, _op. cit._ p. 43 _sqq._]
But man finally overcame this obstacle. "He has," to quote
Darwin, "invented and is able to use various weapons, tools,
traps, &c., with which he defends himself, kills or catches prey,
and otherwise obtains food. He has made rafts or canoes for
fishing or crossing over to neighbouring fertile islands. He has
discovered the art of making fire, by which hard and stringy
roots can be rendered digestible, and poisonous roots or herbs
innocuous."[35] In short, man gradually found out new ways of
earning his living and more and more emancipated himself from
direct dependence on surrounding nature. The chief obstacle to a
gregarious life was by this means surmounted, and the advantages
of such a life were considerable. Living together in larger
groups, men could resist the dangers of life and defend
themselves much better than when solitary--all the more so as the
physical strength of man, and especially savage man, is
comparatively slight. The extension of the small family group may
have taken place in two different ways: either by adhesion, or by
natural growth and cohesion. In other words, new elements whether
other family groups or single individuals may have united with it
from without, or the children, instead of separating from their
parents, may have remained with them and increased the group by
forming new families themselves. There can be little doubt that
the latter was the normal mode of extension. When gregariousness
became an advantage to man, he would feel inclined to remain with
those with whom he was living even after the family had fulfilled
its object--the preservation of {197} the helpless offspring. And
he would be induced to do so not only from egoistic
considerations, but by an instinct which, owing to its
usefulness, would gradually develop, practically within the
limits of kinship--the gregarious instinct.
[Footnote 35: Darwin, _Descent of Man_, p. 48 _sq._]
By the gregarious instinct I understand an animal's proneness to
live together with other members of its own species, apart from
parental, conjugal, and filial attachment. It involves, or leads
to, pleasure in the consciousness of their presence. The members
of a herd are at ease in each other's company, suffer when they
are separated, and rejoice when they are reunited. By actual
living together the instinct is individualised,[36] and it is
strengthened by habit. The pleasure with which one individual
looks upon another is further increased by the solidarity of
interests. Not only have they enjoyments in common, but they have
the same enemies to resist, the same dangers to encounter, the
same difficulties to overcome. Hence acts which are beneficial to
the agent are at the same time beneficial to his companions, and
the distinction between _ego_ and _alter_ loses much of its
importance.
[Footnote 36: In mankind we very early recognise the child's
tendency to sympathise with persons who are familiar to it
(Compayré, _L'évolution intellectuelle et morale de l'enfant_,
p. 288).]
But the members of the group do not merely take pleasure in each
other's company. Associated animals very frequently display a
feeling of affection for each other--defend each other, help each
other in distress and danger, perform various other services for
each other.[37] Considering that the very object of the
gregarious instinct is the preservation of the species, I think
we are obliged to regard the mutual affection of associated
animals as a development of this instinct. With the pleasure they
take in each other's company is intimately connected kindliness
towards its cause, the companion himself. In this explanation of
social affection I believe no further step can be made. Professor
Bain asks why a more lively feeling should grow up towards a
fellow-being than towards an {198} inanimate source of pleasure;
and to account for this he suggests, curiously enough, "the
primary and independent pleasure of the animal embrace"[38]--although
embrace even as an outward expression of affection plays a very
insignificant part in the social relations of gregarious animals.
It might as well be asked why there should be a more lively
feeling towards a sentient creature which inflicts pain than
towards an inanimate cause of pain. Both cases call for a similar
explanation. The animal distinguishes between a living being and
a lifeless thing, and affection proper, like anger proper, is
according to its very nature felt towards the former only. The
object of anger is normally an enemy, the object of social
affection is normally a friend. Social affection is not only
greatly increased by reciprocity of feeling, but could never have
come into existence without such reciprocity. The being to which
an animal attaches itself is conceived of as kindly disposed
towards it; hence among wild animals social affection is found
only in connection with the gregarious instinct, which is
reciprocal in nature.
[Footnote 37: Darwin, _op. cit._ p. 100 _sqq._ Kropotkin, _Mutual
Aid_, ch. i. _sq._]
[Footnote 38: Bain, _op. cit._ p. 132.]
Among men the members of the same social unit are tied to each
other with various bonds of a distinctly human character--the
same customs, laws, institutions, magic or religious ceremonies
and beliefs, or notions of a common descent. As men generally are
fond of that to which they are used or which is their own, they
are also naturally apt to have likings for other individuals
whose habits or ideas are similar to theirs. The intensity and
extensiveness of social affection thus in the first place depend
upon the coherence and size of the social aggregate, and its
development must consequently be studied in connection with the
evolution of such aggregates.
This evolution is largely influenced by economic conditions.
Savages who know neither cattle-rearing nor agriculture, but
subsist on what nature gives them--game, fish, fruit, roots, and
so forth--mostly live in single families consisting of parents
and children, or in larger {199} family groups including in
addition a few other individuals closely allied.[39] But even
among these savages the isolation of the families is not
complete. Persons of the same stock inhabiting neighbouring
districts hold friendly relations with one another, and unite for
the purpose of common defence. When the younger branches of a
family are obliged to disperse in search of food, at least some
of them remain in the neighbourhood of the parent family,
preserve their language, and never quite lose the idea of
belonging to one and the same social group. And in some cases we
find that people in the hunting or fishing stage actually live in
larger communities, and have a well-developed social
organisation. This is the case with many or most of the
Australian aborigines. Though in Australia, also, isolated
families are often met with,[40] the rule seems to be that the
blacks live in hordes. Thus the Arunta of Central Australia are
distributed in a large number of small local groups, each of
which occupies a given area of country and has its own
headman.[41] Every family, consisting of a man and one or more
wives and children, has a separate lean-to of shrubs;[42] but
clusters of these shelters are always found in spots where food
is more or less easily obtainable,[43] and the members of each
group are bound together by a strong "local feeling."[44] The
local influence makes itself felt even outside the horde.
"Without belonging to the same group," say Messrs. Spencer and
Gillen, "men who inhabit localities close to one another are more
closely associated than men living at a distance from one
another, and, as a matter of fact, this local bond is strongly
marked. . . . Groups which are contiguous locally are constantly
meeting to perform ceremonies."[45] At the time when the series
of initiation ceremonies called the _Engwura_ are performed, men
and women gather together from all parts of the tribe, councils
of the elder {200} men are held day by day, the old traditions of
the tribe are repeated and discussed, and "it is by means of
meetings such as this, that a knowledge of the unwritten history
of the tribe and of its leading members is passed on from
generation to generation."[46] Nay, even members of different
tribes often have friendly intercourse with each other; in
Central Australia, when two tribes come into contact with one
another on the border-land of their respective territories, the
same amicable feelings as prevail within the tribe are maintained
between the members of the two.[47] Now it seems extremely
probable that Australian blacks are so much more sociable than
most other hunting people because the food-supply of their
country is naturally more plentiful, or, partly thanks to their
boomerangs, more easily attainable. A Central Australian native
is, as a general rule, well nourished; "kangaroo, rock-wallabies,
emus, and other forms of game are not scarce, and often fall a
prey to his spear and boomerang, while smaller animals, such as
rats and lizards, are constantly caught without any difficulty by
the women."[48] Circumstances of an economic character also
account for the gregariousness of the various peoples on the
north-west coast of North America who are neither pastoral nor
agricultural--the Thlinkets, Haidas, Nootkas, and others. On the
shore of the sea or some river they have permanent houses, each
of which is inhabited by a number of families;[49] the houses are
grouped in villages, some of which are very populous;[50] and
though the tribal bond is not conspicuous for its strength, there
are councils which discuss and decide all important questions
concerning the tribe.[51] The territory inhabited by these
peoples, with its bays, sounds, and rivers, supplies them with
food in abundance; "its enormous wealth of fish allows its
inhabitants to enjoy a pampered existence."[52]
[Footnote 39: Westermarck, _op. cit._ p. 43 _sqq._ Hildebrand,
_Recht und Sitte_, p. 1 _sqq._]
[Footnote 40: Westermarck, _op. cit._ p. 45.]
[Footnote 41: Spencer and Gillen, _Native Tribes of Central
Australia_, p. 8 _sqq._]
[Footnote 42: _Ibid._ p. 18.]
[Footnote 43: _Ibid._ p. 31.]
[Footnote 44: _Ibid._ p. 544.]
[Footnote 45: _Ibid._ p. 14.]
[Footnote 46: Spencer and Gillen, _Native Tribes of Central
Australia_, p. 272.]
[Footnote 47: _Ibid._ p. 32.]
[Footnote 48: _Ibid._ pp. 7, 44.]
[Footnote 49: Boas, in _Fifth Report on the North-Western Tribes
of Canada_, p. 22.]
[Footnote 50: Krause (_Die Tlinkit-Indianer_, p. 100) speaks of a
Thlinket village which consisted of sixty-five houses and five or
six hundred inhabitants.]
[Footnote 51: Boas, _loc. cit._ p. 36 _sq._]
[Footnote 52: Ratzel, _History of Mankind_, ii. 92.]
{201} To pastoral people sociality, up to a certain degree, is of
great importance. They have not only to defend their own persons
against their enemies, but they have also to protect valuable
property, their cattle. Moreover, they are often anxious to
increase their wealth by robbing their neighbours of cattle, and
this is best done in company. But at the same time a pastoral
community is never large, and, though cohesive so long as it
exists, it is liable to break up into sections. The reason for
this is that a certain spot can pasture only a limited stock of
cattle. The thirteenth chapter of Genesis well illustrates the
social difficulties experienced by pastoral peoples. Abraham went
up out of Egypt together with his wife and all that he had, and
Lot went with him. Abraham was very rich in cattle, and Lot also
had flocks, and herds, and tents. But "the land was not able to
bear them, that they might dwell together: for their substance
was great, so that they could not dwell together"; they were
obliged to separate.[53]
[Footnote 53: _Genesis_, xiii. 1 _sqq._ See Hildebrand, _op.
cit._ p. 29 _sq._; Grosse, _Die Formen der Familie_, pp. 99, 100,
124 _sq._]
The case is different with people subsisting on agriculture. A
certain piece of land can support a much larger number of persons
when it is cultivated than when it consists merely of pasture
ground. Its resources largely depend on the labour bestowed on
it, and the more people the more labour. The soil also
constitutes a tie which cannot be loosened. It is a kind of
property which, unlike cattle, is immovable; hence even where
individual ownership in land prevails, the heirs to an estate
have to remain together. As a matter of fact, the social union of
agricultural communities is very close, and the households are
often enormous.[54]
[Footnote 54: See Grosse, _op. cit._ p. 136 _sqq._]
But living together is not the only factor which, among savages,
establishes a social unit. Such a unit may be based not only on
local proximity, but on marriage or a common descent; it may
consist not only of persons who live together in the same
district, but of persons who are of the same family, or who are,
or consider themselves to be, {202} of the same kin. These
different modes of organisation often, in a large measure,
coincide. The family is a social unit made up of persons who are
either married or related by blood, and at the same time, in
normal cases, live together. The tribe is a social unit, though
often a very incoherent one,[55] consisting of persons who
inhabit the same district and also, at least in many cases,
regard themselves as descendants of some common ancestor. The
clan, which is essentially a body of kindred having a common
name, may likewise on the whole coincide with the population of a
certain territory, with the members of one or more hordes or
villages. This is the case where the husband takes his wife to
his own community and descent is reckoned through the father, or
where he goes to live in his wife's community and descent is
reckoned through the mother. But frequently the system of
maternal descent is combined with the custom of the husband
taking his wife to his own home, and this, in connection with the
rule of clan-exogamy, occasions a great discrepancy between the
horde and the clan. The local group is then by no means a group
of clansmen; the children, live in their father's community, but
belong to their mother's clan, whilst the next generation of
children within the community must belong to another clan.[56]
[Footnote 55: See Cunow, _Die Verwandtschafts-Organisationen der
Australneger_, p. 121, n. 1.]
[Footnote 56: _Cf._ Giddings, _Principles of Sociology_, p. 259.]
Kinship certainly gives rise to special rights and duties, but
when unsupported by local proximity it loses much of its social
force. Among the Australian natives, for instance, the clan rules
seem generally to be concerned with little or nothing else than
marriage, sexual intercourse, and, perhaps, blood-revenge.[57]
"The object of caste" (clan), says Mr. Curr, "is not to create or
define a bond of union, but to secure the absence of any blood
relationship between {203} persons proposed to marry. So far from
being a bond of friendship, no Black ever hesitates to kill one
of another tribe because he happens to bear the same caste- (clan-)
name as himself."[58] It appears that the system of descent itself
is largely influenced by local connections.[59] Sir E. B. Tylor has
found by means of his statistical method that the number of
coincidences between peoples among whom the husband lives with the
wife's family and peoples who reckon kinship through the mother only,
is proportionally large, and that the full maternal system never
appears among peoples whose exclusive custom is for the husband to
take his wife to his own home;[60] and I have myself drawn attention
to the fact that where the two customs, the woman receiving her husband
in her own hut and the man taking his wife to his, occur side by side
among the same people, descent in the former case is traced through the
mother, in the latter through the father.[61] Nay, even where kinship
constitutes a tie between persons belonging to different local
groups, its social force is ultimately derived not merely from
the idea of a common origin, but from near relatives' habit of
living together. Men became gregarious by remaining in the circle
where they were born; if, instead of keeping together with their
kindred, they had preferred to isolate themselves or to unite
with strangers, there would certainly be no blood-bond at all.
The mutual attachment and the social rights and duties which
resulted from this gregarious condition were associated with the
relation in which members of the group stood to one another--the
relation of kinship as expressed by a common name,--and these
associations might last even after the local tie was broken. By
means of the name former connections were kept up. Even we
ourselves are generally more disposed to count kin with distant
relatives who have our own surname than with relatives who have a
different name; and still greater is the influence which language
in this respect exercises on the mind of a savage, {204} to whom
a person's name is part of his personality. The derivative origin
of the social force in kinship accounts for its formal character,
when personal intercourse is wanting; it may enjoin duties, but
hardly inspires much affection. If in modern society much less
importance is attached to kinship than at earlier stages of
civilisation, this is largely due to the fact that relatives,
except the nearest, have little communication with each other.
And if, as Aristotle observes, friendship between kinsfolk varies
according to the degree of relationship,[62] it does so in the
first instance on account of the varying intimacy of their mutual
intercourse.
[Footnote 57: Cunow, _op. cit._ pp. 97, 136. Dr. Stirling says
(_Report of the Horn Expedition to Central Australia_,
'Anthropology,' p. 43) that the laws arising out of the "class"
(clan) divisions "have extraordinary force and are, in general,
implicitly obeyed whether in respect of actual marriage, illicit
connections, or social relations"; but I find no further
reference to these "social relations."]
[Footnote 58: Curr, _The Australian Race_, i. 69.]
[Footnote 59: Westermarck, _op. cit._ p. 107 _sqq._]
[Footnote 60: Tylor, 'Method of Investigating the Development of
Institutions,' in _Jour. Anthr. Inst._ xviii. 258.]
[Footnote 61: Westermarck, _op. cit._ p. 110.]
[Footnote 62: Aristotle, _Ethica Nicomachea_, viii. 12. 7.]
A very different explanation of the social influence of kinship
has been given by Mr. Hartland. He connects it with primitive
superstition. A clan, he says, "is regarded as an unity,
literally and not metaphorically one body, the individual members
of which are as truly portions as the fingers or the legs are
portions of the external, visible body of each of them." Now, a
severed limb or lock of hair is believed by the savage to remain
in some invisible but real union with the body whereof it once,
in outward appearance also, formed a part, and any injury done to
it is supposed to affect the organism to which it belonged. "The
individual member of a clan was in exactly the same position as a
lock of hair cut from the head, or an amputated limb. He had no
separate significance, no value apart from his kin. . . . Injury
inflicted on him was inflicted on, and was felt by, the whole
kin, just as an injury inflicted on the severed lock or limb was
felt by the bulk."[63] Mr. Hartland insists upon a literal
interpretation of his words;[64] and this implies that the
members of a clan are in their behaviour influenced by the idea
that what happens to one of them reacts upon all.
[Footnote 63: Hartland, _Legend of Perseus_, ii. 277.]
[Footnote 64: _Ibid._ ii. 236, 398, 444.]
In support of his theory Mr. Hartland makes reference to the
belief of some savages, that charms may be made from dead bodies
against the surviving relatives of the deceased,[65] and to
certain rites of healing in which, besides the patient himself,
"other members of his tribe, presumably kinsmen," take part.[66]
But the former belief is a superstition connected with the wonder
of death, from which no conclusion must be drawn as {205} to
relations between the living; and in the ceremonies of healing
the medicine-man plays a much more prominent part than the other
bystanders--whose relationship to the patient, besides, is so
little marked that Mr. Hartland only presumes them to be kindred.
He further observes that in the wide-spread custom of the Couvade
we meet with the idea that the child, being a part of the father,
is liable to be affected by various acts committed by him.[67]
And from Sir J. G. Frazer's 'Golden Bough' might be quoted many
instances of a belief in some mysterious bond of sympathy
knitting together absent friends and relations--especially at
critical times of life--which has, in particular, led to rules
regulating the conduct of persons left at home while a party of
their friends is out fishing or hunting or on the war path.[68]
But all these rules are taboo restrictions of a definite and
altogether special kind, generally, it seems, referring to
members of the same family, and frequently to wives in their
husbands' absence. In order to make his hypothesis acceptable,
Mr. Hartland ought to have produced a fair number of facts
proving that the members of the same clan really are believed to
be connected with each other in such a manner, that whatever
affects one of them at the same time in a mysterious way affects
the rest. But we look in vain for a single well-established
instance of such a belief.
[Footnote 65: _Ibid._ ii. 437 _sq._]
[Footnote 66: _Ibid._ ii. 432 _sqq._]
[Footnote 67: Hartland, _Legend of Perseus_, ii. 406.]
[Footnote 68: Frazer, _Golden Bough_, i. 27 _sqq._ See also
Haddon, _Magic and Fetishism_, p. 11 _sq._]
It seems that the importance which savages attach to a common
blood has been much exaggerated. Clanship is based on a method of
counting descent by means of names, either through the father or
through the mother, but not through both at once. This, however,
by no means implies that the other line is not recognised as a
line of blood-relationship. The paternal system of descent is not
necessarily associated with the idea that the mother has no share
in parentage, nor is the maternal system necessarily associated
with unconsciousness of the child's relation to its father;[69]
even the Couvade, which assumes the recognition of a most
intimate relationship between the child and its father, has been
found to prevail among some peoples who regard the child as a
member of the mother's clan.[70] Nay, there are instances in
which the clan-bond is obviously {206} not regarded as a
blood-bond at all, in the strict sense of the word. Of some
tribes in New South Wales Mr. Cameron tells us that, although a
daughter belongs not to her father's clan but to that of her
mother's brother, they believe that she emanates from her father
solely, being only nurtured by her mother;[71] and the Arunta of
Central Australia, who have the paternal system of descent,
maintain that a child really descends neither from its father nor
from its mother, but is the reincarnation of a mythical
totem-ancestor.[72] Their theory is "that the child is not the
direct result of intercourse, that it may come without this,
which merely, as it were, prepares the mother for the reception
and birth also of an already-formed spirit child who inhabits one
of the local totem centres";[73] and its totem-name, which is
derived from the spot where it is supposed to have been
conceived,[74] is different from its clan-name. It is useful to
scrutinise Mr. Hartland's theory in the light of this class of
facts. They evidently prove that clanship and what we are used to
call the system of counting "descent," is not necessarily based
on the notion of actual blood-relationship, but on kinship as a
fact combined with a name; whereas Mr. Hartland's hypothesis
presupposes, not that the members of a clan really are, but that
they consider themselves to be all of one blood.
[Footnote 69: Mr. Swan informs me that the Waguha of West
Tanganyika, among whom children are generally named after their
father, recognise the part taken by both parents in generation;
and Archdeacon Hodgson writes the same concerning certain other
tribes of Eastern Central Africa, who trace descent through the
mother.]
[Footnote 70: Ling Roth, 'Signification of Couvade,' in _Jour.
Anthr. Inst._ xxii. 227, 238.]
[Footnote 71: Cameron, 'Notes on some Tribes of New South Wales,'
in _Jour. Anthr. Inst._ xiv. 352.]
[Footnote 72: Spencer and Gillen, _Native Tribes of Central
Australia_, ch. iv. especially pp. 121, 124.]
[Footnote 73: _Ibid._ p. 265.]
[Footnote 74: _Ibid._ p. 124 _sqq._]
Yet another practice has been adduced as evidence of the supreme
importance which the primitive clan is supposed to attach to
unity in blood--the so-called blood-covenant. The members of a
clan, Mr. Hartland observes, may not be all descended from a
common ancestry. Though descent is the normal, the typical cause
of kinship and a common blood, kinship may also be acquired. "To
acquire kinship, the blood of the candidate for admission into
the kin must be mingled with that of the kin. In this way he
enters into the brotherhood, is reckoned as of the same stock,
obtains the full privileges of a kinsman."[75] As Professor
Robertson Smith puts it, "he who has drunk a clansman's blood is
no longer a stranger but a brother, and included in the mystic
circle of those who have a share in the life-blood that is common
to all the clan."[76] Mr. Hartland gives us a short account of
the rite:--"It is sufficient that an incision be made in the
neophyte's arm and the flowing blood sucked from it by one of the
clansmen, upon whom the {207} operation is repeated in turn by
the neophyte. Originally, perhaps, the clansmen all assembled and
partook of the rite; but if so, the necessity has ceased to be
recognised almost everywhere. The form, indeed, has undergone
numberless variations. . . . But, whatever may be the exact form
adopted, the essence of the rite is the same, and its range is
world-wide." Then there follows a list of peoples from various
quarters of the world among whom it is said to prevail.[77]
[Footnote 75: Hartland, _op. cit._ ii. 237.]
[Footnote 76: Robertson Smith, _Religion of the Semites_, p. 315.]
[Footnote 77: Hartland, _op. cit._ 237 _sqq._]
From this the reader undoubtedly gets the impression that the
mingling of blood is a frequently practised ceremony of adoption,
by which a person is admitted into a strange clan. But the facts
stated by the chief authorities on the subject, to whom Mr.
Hartland refers, prove nothing of the kind. In most cases with
which we are acquainted the mingling of blood is a form of
covenant between individuals, although an engagement with a chief
or king naturally embraces his subjects also; and sometimes the
covenanters are tribes or kingdoms. But of the "world-wide"
adoption rite there is hardly a single instance which corresponds
to Mr. Hartland's description. He admits himself that "in the
same measure as the clan relaxed its hold upon the individual
members, blood-brotherhood assumed a personal aspect, until,
having no longer any social force, it came to be regarded as
merely the most solemn and binding form of covenant between man
and man."[78] His account of the blood-covenant is, in fact, only
an inference based on the assumption that the existing rite is a
survival from times when the clan was literally one body and the
individual nothing but an amputated limb. But to regard the
present blood-covenant as a survival of a previous rite of
adoption into the clan is not justified by facts. So far as I
know, there is no record of a blood-covenant among savages of the
lowest type, unless the aborigines of Australia be included among
them; and in Australia it is certainly not a ceremony of
adoption. Among the Arunta it is intended to prevent treachery:
"if, for example, an Alice Springs party wanted to go on an
avenging expedition to the Burt country, and they had with them
in camp a man of that locality, he would be forced to drink blood
with them, and, having partaken of it, would be bound not to aid
his friends by giving them warning of their danger."[79] This
instance is instructive. The Australian native is obliged to help
those with whom he has drunk blood against his own relatives,
nay, against members of his own totem group. So also "the tie
{208} of blood-covenanting is reckoned in the East even a closer
tie than that of natural descent,"[80] and the same was the case
among the ancient Scandinavians.[81] I do not see how Mr.
Hartland's theory can account for this.
[Footnote 78: _Ibid._ ii. 240.]
[Footnote 79: Spencer and Gillen, _Native Tribes of Central
Australia_, p. 461.]
[Footnote 80: Trumbull, _Blood Covenant_, p. 10.]
[Footnote 81: Maurer, _Bekehrung des Norwegischen Stammes_,
ii. 171.]
Mingling of blood is sometimes supposed to be a direct cause of
mutual sympathy and agreement, in accordance with the principle
of transmission of properties by contact;[82] even in Europe
there are traces of the belief that a few drops of blood
transferred from one person to another inspire the recipient with
friendly feelings towards him with whose blood he is
inoculated.[83] But the genuine blood-covenant imposes duties on
both parties, and also contains the potential punishment for
their transgression. It involves a promise, and the transference
of blood is vaguely or distinctly supposed to convey to the
person who drinks it, or who is inoculated with it, a conditional
curse which will injure or destroy him should he break his
promise. That this is the main idea underlying the blood-covenant
appears from the fact that it is regularly accompanied by curses
or self-imprecations.[84] In Madagascar, for instance, when two
or more persons have agreed on forming the bond of fraternity, a
fowl is procured, its head is nearly cut off, and it is left in
this state to continue bleeding during the ceremony. The parties
then pronounce a long imprecation and mutual vow over the blood,
saying, _inter alia_ "O this miserable fowl weltering in its
blood! thy liver do we eat, thy liver do we eat; and should
either of us retract from the terms of this oath, let him
instantly become a fool, let him instantly become blind, let this
covenant prove a curse to him." A small portion of blood is then
drawn from each individual and drunk by the covenanting parties
with execrations of vengeance on each other in case of either
violating the sacred oath.[85] According to another description
the parties, after they have drunk each other's blood, drink a
mixture from the same bowl, praying that it may turn into {209}
poison for him who fails to keep the oath.[86] As we have seen
before, blood is commonly regarded as a particularly efficient
conductor of curses, and what could in this respect be more
excellent than the blood of the very person who utters the curse?
But the blood of a victim sacrificed on the occasion may serve
the same purpose, or some other suitable vehicle may be chosen to
transfer the imprecation. The Masai in the old days "spat at a
man with whom they swore eternal friendship";[87] and the meaning
of this seems clear when we hear that they spit copiously when
cursing, and that "if a man while cursing spits in his enemy's
eyes, blindness is supposed to follow."[88] The ancient Arabs,
besides swearing alliance and protection by dipping their hands
in a pan of blood and tasting the contents, had a covenant known
as the _[h.]ilf al-fo[d.]ûl_, which was made by taking Zemzem
water and washing the corners of the Ka[(]ba with it, whereafter
it was drunk by the parties concerned.[89] The blood-covenant is
essentially based on the same idea as underlies the Moorish
custom of sealing a compact of friendship by a common meal at the
tomb of some saint, the meaning of which is obvious from the
phrase that "the food will repay" him who breaks the compact.[90]
[Footnote 82: _Cf._ Crawley, _Mystic Rose_, p. 236 _sq._]
[Footnote 83: von Wlislocki, 'Menschenblut im Glauben der
Zigeuner,' in _Am Ur-Quell_, iii. 64. Dörfler, 'Das Blut im
magyarischen Volkglauben,' _ibid._ iii. 269 _sq._]
[Footnote 84: Forbes, _A Naturalist's Wanderings in the Eastern
Archipelago_, p. 452 (natives of Timor). Burns, 'Kayans of the
North-West of Borneo,' in _Jour. of the Indian Archipelago_, iii.
146 _sq._ New, _Life, Wanderings, and Labours in Eastern Africa_,
p. 364 (Taveta). Decle, _Three Years in Savage Africa_, p. 494
(Wakamba). Trumbull, _op. cit._ pp. 9, 20, 31, 42, 45-47, 53, 61
_sq._ For the practice of sealing an agreement by transference of
blood accompanied by an oath, see also Partridge, _Cross River
Natives_, p. 191 (pagans of Obubura Hill district in Southern
Nigeria).]
[Footnote 85: Ellis, _History of Madagascar_, 187 _sqq._]
[Footnote 86: Dumont d'Urville, _Voyage pittoresque autour du
monde_, i. 81.]
[Footnote 87: Hinde, _Last of the Masai_, p. 47. See also
Johnston, _Uganda_, ii. 833.]
[Footnote 88: Hinde, _op. cit._ p. 48.]
[Footnote 89: Robertson Smith, _Marriage and Kinship in Early
Arabia_, p. 56 _sqq._ _Cf._ Herodotus, iii. 8.]
[Footnote 90: See _supra_, i. 587. According to another theory
the inoculated blood is regarded as a pledge or deposit, which
compels the person from whom it was drawn to be faithful to the
person to whom it was transferred. Suppose that two individuals,
A and B, become "blood-brothers" by mutual inoculation. Each,
then, Mr. Crawley argues (_Mystic Rose_, p. 236 _sq._), has a
part of the other in his keeping, each has "given himself away"
to the other in a very real sense; and the possibility of mutual
treachery or wrong is prevented both by the fact that injury done
to B by A is considered equivalent to injury done by A to
himself, and also by the belief that if B is wronged he may work
vengeance by injuring the part of A which he possesses. To this
explanation, however, serious objections may be raised. The
belief in sympathetic magic does not imply that injury done to B
by A is _eo ipso_ supposed to affect A himself through that part
of him which has been deposited in B; it does not imply that two
things which have once been conjoined remain, when quite
dissevered from each other, in such a relation that "whatever is
done to the one must similarly affect the other" (Frazer, _Golden
Bough_, i. 49), unless there is an intention to this effect in
the agent. The severed part then serves as a medium by which
magic influence is transferred to the whole. Again, it is
difficult to see how B could injure A through the part of him
which he possesses when that part has been absorbed into his own
system, as must be the case with those few drops of A's blood
with which he was inoculated.]
Besides marriage, local proximity, and a common descent, a common
worship may tie people together into {210} social union. But
among savages a religious community generally coincides with a
community of some other kind. There are tutelary gods of
families, clans, and tribes;[91] and a purely local group may
also form a religious community by itself. Major Ellis observes
that with some two or three exceptions all the gods worshipped by
the Tshi-speaking tribes on the Gold Coast are exclusively local
and have a limited area of worship. If they are nature-gods they
are bound up with the natural objects they animate, if they are
ghost-gods they are localised by the place of sepulture, and if
they are tutelary deities whose origin has been forgotten their
position is necessarily fixed by that of the town, village, or
family they protect; in any case they are worshipped only by
those who live in the neighbourhood, the only exceptions being
the sky-god, the earthquake-god, and the goddess of the
silkcotton trees, who are worshipped everywhere.[92]
[Footnote 91: See _infra_, ch. l.]
[Footnote 92: Ellis, _Yoruba-speaking Peoples of the Slave
Coast_, p. 284 _sq._ For various instances of village gods see
Turner, _Samoa_, p. 18; Crozet, _Voyage to Tasmania, &c._ p. 45
(Maoris); Christian, _Caroline Islands_, p. 75 (natives of
Ponape); Grierson, _Bih[=a]r Peasant Life_, p. 403 _sqq._]
When the religious community is thus at the same time a family,
clan, village, or tribe, it is of course impossible exactly to
distinguish the social influence of the common religion from that
exercised by marriage, local proximity, or a common descent. It
seems, however, that the importance of the religious bond, or at
least of the totem bond, has been somewhat exaggerated by a
certain school of anthropologists. We are told that in early
society "each member of the kin testifies and renews his union
with the rest" by taking part in a sacrificial meal in which the
totem god is eaten by his worshippers.[93] But no satisfactory
evidence has ever been given in support of this theory. Sir J. G.
Frazer knows only one certain case of a totem sacrament, namely,
that prevalent among the Arunta and some other tribes in Central
Australia,[94] who at the time of Intichiuma are in the habit of
killing and eating totem animals; and this practice has nothing
whatever {211} to do with the mutual relations between kindred.
Its object is only to multiply in a magic manner the animals of
certain species for the purpose of increasing the food-supply for
other totemic groups.[95] In his book on Totemism Frazer
writes:--"The totem bond is stronger than the bond of blood or
family in the modern sense. This is expressly stated of the clans
of western Australia and of north-western America, and is
probably true of all societies where totemism exists in full
force. Hence in totem tribes every local group, being necessarily
composed (owing to exogamy) of members of at least two totem
clans, is liable to be dissolved at any moment into its totem
elements by the outbreak of a blood feud, in which husband and
wife must always (if the feud is between their clans) be arrayed
on opposite sides, and in which the children will be arrayed
against either their father or their mother, according as descent
is traced through the mother, or through the father."[96] In the
two or three cases which Frazer quotes in support of his
statement[97] the totemic group is identical with the clan; hence
it is impossible to decide whether the strength of the tie which
unites its members is due to the totem relationship or to the
common descent. But even the combined clan and totem systems seem
at most only in exceptional cases to lead to such consequences as
are indicated by Frazer's authorities. With reference to the
Australian aborigines Mr. Curr observes:--"Of the children of one
father being at war with him, or with each other, on the ground
of maternal relationship, or any other ground, my inquiries and
experience supply no instances. To Captain Grey's statements,
indeed, there are several objections."[98]
[Footnote 93: Hartland, _op. cit._ ii. 236.]
[Footnote 94: Frazer, _Golden Bough_, i. p. xix. _Cf._ _Idem_,
_Totemism and Exogamy_, iv. 230 _sqq._]
[Footnote 95: Spencer and Gillen, _Native Tribes of Central
Australia_, ch. vi. _Iidem_, _Northern Tribes of Central
Australia_, ch. ix. _sq._]
[Footnote 96: Frazer, _Totemism_, p. 57.]
[Footnote 97: Grey, _Journals of Expeditions in North-West and
Western Australia_, ii. 230. Petroff, _Report on Alaska_, p. 165.
Hardisty, 'Loucheux Indians,' in _Smithsonian Report_, 1866, p. 315.]
[Footnote 98: Curr, _The Australian Race_, i. 67. In Hardisty's
statement, referring to the Loucheux Indians, there is a
conspicuous lack of definiteness. He says:--"In war it was not
tribe against tribe, but division against division, and as the
children were never of the same caste (clan) as the father, the
children would, of course, be against the father and the father
against the children. . . . This, however, was not likely to
occur very often, as the worst of parents would have naturally
preferred peace to war with his own children." Petroff's passage
concerning the Thlinkets, referred to by Sir J. G. Frazer, simply
runs:--"The ties of the totem or clanship are considered far
stronger than those of blood relationship."]
{212} Among the Arunta and some other Central Australian tribes
we have fortunately an opportunity of studying the social
influence of totemism apart from that of clanship, the division
into totems being quite independent of the clan system. The whole
district of a tribe may be mapped out into a large number of
areas of various sizes, each of which centres in one or more
spots where, in the dim past, certain mythical ancestors are said
to have originated or camped during their wanderings, and where
their spirits are still supposed to remain, associated with
sacred stones, which the ancestors used to carry about with them.
From these spirits have sprung, and still continue to spring,
actual men and women, the members of the various totems being
their reincarnations. At the spots where they remained, the
ancestral spirits enter the bodies of women, and in consequence a
child must belong to the totem of the spot at which the mother
believes that it was conceived. A result of this is that no one
totem is confined to the members of a particular clan or
sub-clan,[99] and that though most members of a given horde or
local group belong to the same totemic group, there is no
absolute coincidence between these two kinds of organisation.[100]
How, then, does the fact that two persons belong to the same
totem influence their social relationships? "In these tribes,"
say Messrs. Spencer and Gillen, "there is no such thing as the
members of one totem being bound together in such a way that they
must combine to fight on behalf of a member of the totem to which
they belong. . . . The men to assist a particular man in a
quarrel are those of his locality, and not of necessity those of
the same totem as himself, indeed the latter consideration does
not enter into account and in this as in other matters we see the
strong {213} development of what we have called the 'local
influence.' . . . The men who assist him are his brothers, blood
and tribal, the sons of his mother's brothers, blood and tribal.
That is, if he be a Panunga man he will have the assistance of
the Panunga and Ungalla men of his locality, while if it comes to
a general fight he will have the help of the whole of his local
group. . . . It is only indeed during the performance of certain
ceremonies that the existence of a mutual relationship,
consequent upon the possession of a common totemic name, stands
out at all prominently. In fact, it is perfectly easy to spend a
considerable time amongst the Arunta tribe without even being
aware that each individual has a totemic name."[101]
[Footnote 99: Spencer and Gillen, _Native Tribes of Central
Australia_, ch. iv.]
[Footnote 100: _Ibid._ pp. 9, 32, 34.]
[Footnote 101: Spencer and Gillen, _Native Tribes of Central
Australia_, pp. 34, 544.]
When from the savage and barbarous races of men we pass to
peoples of a higher culture, as they first appear to us in the
light of history, we meet among them social units similar in kind
to those prevalent at lower stages of civilisation: the family,
clan, village, tribe. We also find among them, side by side with
the family consisting of parents and children, a larger family
organisation, which, though not unknown among the lower races,
assumes particular prominence in the archaic State.
In China the family generally remains undivided till the children
of the younger sons are beginning to grow up. Then the younger
branches of the family separate, and form their own households.
But the new householders continue to take part in the ancestral
worship of the old home; and mourning is worn in theory for four
generations of ascendants and descendants in the direct line, and
for contemporaries descended in the same fifth generation from
the "honoured head" of the family.[102] At the same time we find
in China at least traces of a clan organisation. Large bodies of
persons bear the same surname, and a penalty is inflicted on
anyone who marries a person with the same surname as his own,
whilst a man is strictly forbidden to nominate as his heir {214}
an individual of a different surname.[103] Moreover, there are
whole villages composed of relatives all bearing the same
ancestral name. "In many cases," says Mr. Doolittle, "for a long
period of time no division of inherited property is made in rural
districts, the descendants of a common ancestor living or working
together, enjoying and sharing the profits of their labours under
the general direction and supervision of the head of the clan and
the heads of the family branches. . . . There may be only one
head of the clan. Under him there are several heads of
families."[104]
[Footnote 102: Simcox, _Primitive Civilizations_, ii. 303, 493, 69.]
[Footnote 103: Medhurst, 'Marriage, Affinity, and Inheritance in
China,' in _Trans. Roy. Asiatic Soc. China Branch_, iv. 21, 22, 29.]
[Footnote 104: Doolittle, _Social Life of the Chinese_, ii. 225
_sqq._]
The "four generations" of the Chinese, comprising those who are
regarded as near relatives, have their counterpart in the family
organisation of most so-called Aryan peoples. The Roman
Propinqui--that is, parents and children, brothers and sisters,
uncles and aunts, nephews and nieces, first cousins
(_consobrini_) and second cousins (_sobrini_)--exactly
corresponded to the Anchisteis of the Greeks, the Sapindas of the
Hindus,[105] and the "Syngeneis" of the Persians.[106] The
persons belonging to these four generations stood in a
particularly close relationship to each other. They had mutual
rights and duties of various kinds. In early times, if one of
them was killed, the survivors had to avenge his death. They were
expected to assist each other whenever it was needed, especially
before the court. They celebrated in common feasts of rejoicing
and feasts for the dead. They had a common cult and common
mourning. In short, they formed an enlarged family unit of which
the individual families were merely sub-branches, even though
{215} they did not necessarily live in the same house.[107] In
India we still meet with a perishable survival of this
organisation. "In the Joint Family of the Hindus," says Sir Henry
Maine, ". . . . the agnatic group of the Romans absolutely
survives--or rather, but for the English law and English courts,
it would survive. Here there is a real, thoroughly ascertained
common ancestor, a genuine consanguinity, a common fund of
property, a common dwelling."[108] The Gwentian, Dimetian, and
Venedotian codes likewise represent the homestead and land of the
free Welshman as a family holding. "So long as the head of the
family lived," says Mr. Seebohm, "all his descendants lived with
him, apparently in the same homestead, unless new ones had
already been built for them on the family land. In any case, they
still formed part of the joint household of which he was the
head. When a free tribesman, the head of a household, died, his
holding was not broken up. It was held by his heirs for three
generations as one joint holding."[109] So also among the
subdivisions of ancient Irish society there was one which
comprised the "near relatives," the Propinqui of the Romans.[110]
Many of the South Slavonians to this day live in house
communities each consisting of a body of from ten to sixty
members or even more, who are blood-relations to the second or
third degree on the male side, and who associate in a common
dwelling or group of dwellings, having their land in common,
following a common occupation, and being governed by a common
chief.[111] Among the Russians, {216} too, there are households
of this kind, containing the representatives of three
generations; and previous to the emancipation of the serfs in
1861 such households were much more common than they are
now.[112] The ancient Teutons are the only "Aryan" race among
whom the joint family organisation cannot be proved to have
prevailed.[113]
[Footnote 105: _Baudhâyana_, i. 5. 11. 9:--"The great-grandfather,
the grandfather, the father, oneself, the uterine brothers, the
son by a wife of equal caste, the grandson, and the
great-grandson--these they call Sapindas, but not the
great-grandson's son." _Laws of Manu_, ix. 186:--"To three
ancestors water must be offered, to three the funeral cake is
given, the fourth descendant is the giver of these oblations, the
fifth has no connection with them." _Cf._ Jolly, 'Recht und
Sitte,' in Bühler, _Grundriss der indo-arischen Philologie_,
ii. 85.]
[Footnote 106: Brissonius, _De regio Persarum principatu_, i.
207, p. 279. Leist, _Alt-arisches Jus Civile_, i. 47 _sqq._]
[Footnote 107: Klenze, 'Die Cognaten und Affinen nach Römischem
Rechte in Vergleichung mit andern verwandten Rechten,' in
_Zeitschr. f. geschichtliche Rechtswiss._ vi. 5 _sqq._ Leist,
_Alt-arisches Jus Civile_, i. 231 _sqq._ Rivier, _Précis du droit
de famille romain_, p. 34 _sqq._]
[Footnote 108: Maine, _Dissertations on Early Law and Custom_,
p. 240.]
[Footnote 109: Seebohm, _English Village Community_, p. 193.
_Idem_, _Tribal System in Wales_, p. 89 _sqq._]
[Footnote 110: Maine, _Early History of Institutions_, p. 90
_sq._ Leist, _Alt-arisches Jus Civile_, i. Anhang i.]
[Footnote 111: Krauss, _Sitte und Brauch der Südslaven_, pp. 75,
79 _sqq._ Maine, _Dissertations on Early Law and Custom_, p. 241
_sqq._ Utie[vs]enovi['c], _Die Hauskommunionen der Südslaven_, p. 20
_sqq._ Miler, 'Die Hauskommunion der Südslaven,' in _Jahrbuch d.
internat. Vereinigung f. vergl. Rechtswiss._ iii. 199 _sqq._]
[Footnote 112: Mackenzie Wallace, _Russia_, i. 134. von Hellwald,
_Die menschliche Familie_, p. 506 _sq._ Kovalewsky, _Modern
Customs and Ancient Laws of Russia_, p. 53 _sq._]
[Footnote 113: See Leist, _Alt-arisches Jus Civile_, i. Anhang i.]
Among all these peoples a number of kindred families or joint
families were united into a larger social group forming a village
community or a cluster of households. The Vedic people called
such a body of kindred _janman[=a]_ or simply _gr[=a]ma_, which
means "village";[114] and the same organisation still survives in
India, though in a modified form. The type of Indian village
communities which has been described by Sir Henry Maine is at
once an assemblage of co-proprietors and an organised patriarchal
society, providing for the management of the common fund and
generally also for internal government, police, the
administration of justice, and the apportionment of taxes and
public duties. Unlike the joint family, the related families of
the village community no longer hold their land as an
indistinguishable common fund: they have portioned it out, at
most they redistribute it periodically, and are thus on the high
road to modern landed proprietorship. And whilst the joint family
is a narrow circle of persons actually related to each other, the
village community has very generally been adulterated by the
admission of strangers, especially purchasers of shares, who have
from time to time been engrafted on the original stock of
blood-relatives. Yet in all such cases there is the assumption of
an original common parentage; hence the Hindu village community
of the type indicated, whenever it is not actually an association
of kinsmen, is always a body of co-proprietors formed on the
model of such an association.[115]
[Footnote 114: Zimmer, _Altindisches Leben_, p. 159 _sq._]
[Footnote 115: Maine, _Ancient Law_, p. 260 _sqq._ _Idem_,
_Dissertations on Early Law and Custom_, p. 240. Elphinstone,
_History of India_, p. 68 _sqq._ Mr. Baden-Powell (_Indian
Village Community_, p. 3 _sqq._) has shown that Sir Henry Maine's
general description of Indian village communities holds true only
of a certain class of villages in India.]
{217} Corresponding to the Vedic _gr[=a]ma_ there were the
Iranian _viç_, the Greek _genos_, and the Roman _gens_; and as
among the Vedic people several _gr[=a]mas_ formed a _viç_ and
several _viçs_ a _jana_,[116] so the Iranian _viç_, the Greek
_genos_, and the Roman _gens_ were, respectively, subdivisions of
a _zantu_, _phratria_, and _curia_; and these again were
subdivisions of a still more comprehensive unit, a _daqyu_,
_phyle_, and _tribus_.[117] The Roman territory was in earliest
times divided into a number of clan-districts, each inhabited by
a particular _gens_, which was thus a group associated at once by
locality and by a common descent. Whilst each household had its
own portion of land, the clan-household or village had a
clan-land belonging to it, and this clan-land was managed up to a
comparatively late period after the analogy of household-land,
that is, on the system of joint-possession, each clan tilling its
own land and thereafter distributing the produce among the
several households belonging to it. Even the traditions of Roman
law furnish the information that wealth consisted at first in
cattle and the usufruct of the soil, and that it was not till
later that land came to be distributed among the burgesses as
their own special property.[118] Still in historical times, if a
person left no sons or agnates living at his death, the
inheritance escheated to the _gentiles_, or entire body of Roman
citizens bearing the same name with the deceased, whereas no part
of it was given to any relative united, however closely, with the
dead man through female descent.[119] But as the Hindu village
community, so also the Roman _gens_, though originally a group of
blood-relatives inhabiting a common district, was already in
early times recruited from men of alien extraction who were
assumed to be descended from a common ancestor. And it is
difficult to believe {218} that either in Rome or Greece even the
fiction of a common origin could be preserved for long when the
organisation of the people into gentes, phratries, and tribes was
adopted by the State as a system of political division and their
numbers were fixed.[120] When the _genos_ and _gens_ first appear
to us in history they were mere dwindling survivals, except in
one respect: they remained, as they had been from the
outset,[121] religious communities long after they had lost all
other practical importance. This was especially the case at
Athens, where certain reputed gentes for centuries continued to
play a prominent part in the religious cult;[122] and the Romans
seem to have preserved their _gentilicia sacra_ still in Cicero's
time.[123]
[Footnote 116: Zimmer, _op. cit._ p. 159 _sq._]
[Footnote 117: Leist, _Græco-italische Rechtsgeschichte_, p. 104
_sq._]
[Footnote 118: Mommsen, _History of Rome_, i. 45, 46, 238.]
[Footnote 119: Maine, _Ancient Law_, p. 220 _sq._ Fustel de
Coulanges, _La Cité antique_, p. 126.]
[Footnote 120: Leist, _Græco-italische Rechtsgeschichte_, p. 150
_sqq._ It is expressly said that at Athens the members of the
same [Greek: ge/nos] were not necessarily regarded as
blood-relations (see Bunsen, _De jure hereditario Atheniensium_,
p. 104, n. 28).]
[Footnote 121: Schoemann, _Griechische Alterthümer_, ii. 548
_sqq._ Marquardt, _Römische Staatsverwaltung_, iii. 126, 130.
Fustel de Coulanges, _op. cit._ p. 124 _sqq._]
[Footnote 122: Leist, _Græco-italische Rechtsgeschichte_, p. 159
_sq._]
[Footnote 123: Cicero, _Pro domo_, 13 (34).]
In ancient Wales districts were occupied by tribes under their
petty kings or chiefs, and the tribe (_cenedl_) was a bundle of
kindreds "bound together and interlocked by common interests and
frequent intermarriages, as well as by the necessity of mutual
protection against foreign foes."[124] A group of households,
again, corresponding to the Roman _gens_ formed a _trev_, which
was a cluster of scattered households, "not necessarily a village
in the modern sense."[125] The same seems to have been the case
with the Teutonic _vici_, spoken of by Tacitus;[126] but that
among the Teutons, also, the people of the same neighbourhood
were blood-relatives may be directly inferred from a statement
made by Cæsar.[127] They were not much addicted to
agriculture,[128] and "the dreary world" they inhabited, with its
desert aspect, its harsh climate, its lack of cultivation, was
not {219} favourable to the formation of permanent large social
bodies of great cohesiveness. However, we meet among them social
units which Cæsar calls _regiones_ or _pagi_[129] of which the
_vici_ may be assumed to have been subdivisions. Among the highly
agricultural Slavonians, on the other hand, we find even in the
present time a social organisation very similar to that of the
Hindus. The South Slavonians, as we have seen, live in house
communities corresponding to the joint families in India. Now,
when the members of a house community, or _zadruga_--as it is
often called--become too numerous, a separation takes place, and
the emigrants form new households by themselves. A _zadruga_ is
thus gradually expanded into a _bratstvo_, or brotherhood--a
group of related house communities which not only feel themselves
as branches of the same stock, but still have certain practical
interests in common and a common chief. Several _bratstva_,
finally, form a _pleme_, or tribe.[130] Among the Russians,
again, the family, or joint family, has developed into a _mir_,
or village community, composed of an assemblage of separate
houses each ruled by its own head, but with a common village
chief elected by the heads of the various households. The Russian
_mir_ is an institution very similar to the Hindu village
community described above. The land belongs to the community, and
in earlier days it was probably cultivated in common. At present
it is divided between the component families, the lots shifting
among them periodically, or perhaps vesting in them as their
property, but always subject to a power in the collective body of
villagers to veto its sale. Originally the _mir_ was also a group
of kindred; but, as in the Hindu village community, the tie of
blood has been greatly weakened by all sorts of fictions and the
admission of so many strangers that the tradition of a common
origin is dim or lost.[131]
[Footnote 124: Seebohm, _English Village Community_, p. 190.
_Idem_, _Tribal System in Wales_, p. 61.]
[Footnote 125: _Idem_, _English Village Community_, p. 343.]
[Footnote 126: Tacitus, _Germania_, 16. _Cf._ Hildebrand, _op.
cit._ p. 105 _sqq._]
[Footnote 127: Cæsar, _De bello Gallico_, vi. 22:--"Magistratus
ac princeps in annos singulos gentibus cognationibusque hominum,
qui una coierint, quantum, et quo loco visum est, agri attribuunt."]
[Footnote 128: _Ibid._ vi. 22.]
[Footnote 129: Cæsar, _De bello Gallico_, vi. 23.]
[Footnote 130: Krauss, _op. cit._ pp. 2, 32 _sqq._ von Hellwald,
_op. cit._ p. 502 _sq._ Grosse, _op. cit._ p. 204 _sq._]
[Footnote 131: de Laveleye, _De la propriété_, p. 12 _sqq._
Maine, _Dissertations on Early Law and Custom_, p. 261 _sq._]
In the social organisation of all these peoples there is {220}
thus originally a general congruity between the principle of
local proximity and the principle of descent. On the one hand,
all freemen, all true members of the society, who belong to the
same local group, are at the same time kinsmen; on the other
hand, all persons who are united by the tie of a common descent
belong to the same or neighbouring local groups. The cause of
this congruity is the universal prevalence of the paternal system
of descent. Whether the case was different in prehistoric times
is an open question. That the ancient Chinese reckoned kinship
through the mother, not through the father, has been conjectured
on philological grounds,[132] as to the plausibility of which I
can express no opinion. Several writers have also endeavoured to
prove that the uterine line of descent prevailed among the
primitive Aryans, but the evidence is far from being conclusive.
I agree with Professor Leist that all so-called survivals of a
system of maternal descent in the prehistoric antiquity of the
"Aryan" races are doubtful, if not false.[133] As regards the
Teutons, much importance has been attributed to the specially
close connection which, according to Tacitus, existed between a
sister's children and their mother's brothers;[134] but, as
Professor Schrader remarks, in spite of the prominent position of
the maternal uncle among Teutonic peoples, the _patruus_
distinctly came before the _avunculus_, the agnates before the
cognates, in testamentary succession.[135] The existence of a
custom which in some respect recognises uterine relationship does
not prove the earlier prevalence of the full maternal system of
descent, to the exclusion of the paternal.
[Footnote 132: Puini, quoted by Grosse, _op. cit._ p. 193.]
[Footnote 133: Leist, _Alt-arisches Jus Gentium_, p. 58. _Idem_,
_Alt-arisches Jus Civile_, i. 490.]
[Footnote 134: Tacitus, _Germania_, 20.]
[Footnote 135: Schrader, _Prehistoric Antiquities of the Aryan
Peoples_, p. 395.]
Progress in civilisation is up to a certain point connected with
social expansion. Among savages the largest permanent social unit
is generally the tribe, and even the tribal bond is often very
loose, if not entirely wanting. It is true that associations of
tribes occur even among so {221} low a race as the Australian
aborigines, but unaccompanied by any kind of political
organisation.[136] At a somewhat higher stage we meet with the
famous league of the Iroquois--a federation on republican
principles of five distinct tribes, which could point to three
centuries of uninterrupted domestic unity and peace[137]--and the
kingdoms of various African potentates. Civilisation only thrives
in states. From small beginnings round the lake of Mexico the
Aztecs gradually succeeded, through conquest, in forming an
empire which covered probably almost sixteen thousand square
leagues. However, between the various tribes lay broad belts of
uninhabited territory, which enabled them to keep up a shy and
exclusive attitude towards each other; and at the time of the
Spanish conquest the empire of Mexico was, in fact, little more
than "a chain of intimidated Indian tribes, who, kept apart from
each other under the influence of mutual timidity, were held down
by dread of attacks from an unassailable robber-stronghold in
their midst."[138] In South America, in a long course of ages,
six nations inhabited the region which extends from the
water-parting between the basins of the Huallaga and Ucayali to
that between the basins of the Ucayali and Lake Titicaca. When
increasing population brought them in contact with each other, a
struggle for supremacy ended in the mastery of the fittest--the
Incas; and the empire of the latter was subsequently extended by
the subjugation of a variety of other nations or tribes.[139] The
extent of territory claimed for ancient China by the earliest
records is more than double the size of modern France, and,
though it was often divided into different states, the great
dynasties ruled over the whole of it.[140] The two crowns of
Upper and Lower Egypt were united at a {222} very early date; and
no less imposing was the great kingdom of Babylon and Assur. We
may assume that all these empires were formed by an association,
either voluntary or forcible, of different tribes, as was the
case with those states with whose origin and early growth we are
somewhat better acquainted. As late as the time of the Judges the
tribes of Israel either stood each entirely alone or formed
smaller groups, and there was no such thing as an Israelitish
nation in a political sense until the unity of the people came
into being under Samuel and the first kings.[141] The Vedic
people consisted of a great number of independent tribes, between
which only temporary alliances were made for the sake of defence
or attack. But gradually the alliances grew more permanent;
war-kings united several tribes, surrounded themselves with a
military nobility, and founded great kingdoms.[142] In Greece and
Italy the states grew out of forts which had been built on
elevated places to serve as common strongholds or places of
refuge in case of war. Several tribes united so as to be better
able to resist dangerous enemies, and one of the fortified towns
in time gained supremacy over all others in the neighbourhood, as
Athens did in Attica and Alba Longa in Latium. Similar districts,
ruled by a town, were called _poleis_ or _civitates_.[143] In
historical times attempts were made to carry this process further
by joining several of the small states under the rule of one. In
this Sparta and Athens failed, whereas the efforts of Rome met
with unequalled success.
[Footnote 136: Curr, _The Australian Race_, i. 62 _sq._]
[Footnote 137: Morgan, _League of the Iroquois_, p. 141.]
[Footnote 138: Scheppig, 'Ancient Mexicans,' &c. p. 6, in
Spencer's _Descriptive Sociology_. Prescott, _History of the
Conquest of Mexico_, p. 4. Ratzel, _History of Mankind_,
ii. 199, 202.]
[Footnote 139: Markham, 'Geographical Positions of the Tribes
which formed the Empire of the Yncas,' in _Jour. Roy. Geo. Soc._
xli. 287 _sqq._]
[Footnote 140: Simcox, _op. cit._ ii. 10, 13.]
[Footnote 141: Kuenen, _Religion of Israel_, i. 133.]
[Footnote 142: Zimmer, _Altindisches Leben_, pp. 158, 192 _sq._]
[Footnote 143: Leist, _Græco-italische Rechtsgeschichte_, p. 109
_sqq._]
The development of the State tended to weaken or destroy the
smaller units of which it was composed. The central power,
hostile to separatism, naturally endeavoured to appropriate the
authority invested in the latter, and in a well-governed state
these on their part had little reason to resist. The main object
of the clan, phratry, and tribe was to protect their respective
members; hence they became superfluous in the presence of a
powerful national {223} government which unselfishly and
impartially looked after the interests of its various subjects.
Adam Smith contrasts the strong clan-feeling which still in the
eighteenth century prevailed among the Scotch Highlanders with
the little regard felt for remote relatives by the English, and
observes that in countries where the authority of the law is not
sufficiently strong to give security to every member of the State
the different branches of the same family choose to live in the
neighbourhood of one another, their association being frequently
necessary for their common defence; whereas in a country like
England, where the authority of the law was well established,
"the descendants of the same family, having no such motive for
keeping together, naturally separate and disperse, as interest or
inclination may direct."[144] It seems also probable that the
persistency of the village community or the gentile system among
the Hindus and Slavs has been largely due to the weakness of the
State or to the badness of the government.
[Footnote 144: Smith, _Theory of Moral Sentiments_, p. 326 _sq._]
As the larger units, so the family also was influenced by the
rise of the State, but originally in quite the opposite
direction. Whilst the former dwindled away, the family grew in
importance. Nowhere do we find the family-tie stronger, nowhere
does the father or eldest male ascendant possess greater power
than in the archaic State. In a previous chapter I have already
tried to explain this singular fact. I pointed out that in early
society there seems to be a certain antagonism between the family
and the clan, that the family was strengthened because the clan
was weakened, that the father became a patriarch only as the
inheritor of the authority which formerly belonged to the clan.
But we have also noticed that at a higher stage the family again
lost in importance.[145]
[Footnote 145: _Supra_, i. 627 _sq._]
It seems that the tribes which united into one nation or state
were normally, in the first instance, branches of the same stock,
living in the same neighbourhood and speaking {224} the same
language, though with dialectic differences. Like the smaller
units, such a state was no doubt frequently adulterated by the
amalgamation of aliens, but here again fictions were substituted
for realities, and the foreign extraction was forgotten. The case
was different, however, when the commonwealth was formed or
aggrandised by the subjugation of a strange race. Instead of
being adopted into the circle of the conquerors, the subdued
people were treated as their inferiors in blood, civic rights
were denied to them, and in many cases they were kept in
servitude; thus even here the principle of a common origin as the
base of citizenship was preserved, the conquerors being the only
citizens in the full sense of the term. But however strong and
durable similar barriers may be, they are not imperishable. The
different races inhabiting the same country under the same
government tend to draw nearer each other, the inferior race is
incorporated with the nation, and local proximity instead of
descent at last becomes the basis of community in political
functions. This change, however, was neither so radical nor so
startling as it has been represented to be;[146] fictions on a
large scale still formed a bridge between ancient and modern
ideas. Sir Henry Maine says that we cannot now hope to understand
the good faith of the fiction by which in early times the
incoming population were assumed to be descended from the same
stock as the people on whom they were engrafted.[147] But is this
good faith more astonishing than the readiness with which a
common language, in spite of the most obvious facts to the
contrary, is even now constantly taken as the sign of a common
origin? Though identity of language, even in the case of whole
peoples, proves nothing more than contact or neighbourhood, a
person's mother-tongue popularly decides his race, and language
and nationality are regarded almost as synonymous. Genealogical
fictions, then, are not merely a thing of the past, nor have they
ceased to influence political ideas. The modern theory of {225}
nationalism vindicates the right of the strongest nationality to
absorb the other nationalities living within the same state by a
method of compulsory engraftment, and this can be effected only
by their accepting its language. But this theory is not so much
concerned with language as such, as with language as an emblem of
nationality. At the bottom of it is the narrow feeling of racial
intolerance, quite ready however to be appeased by a fiction. The
doctrine of nationalism is the spectre of the same political
principle--the principle of a common descent, either real or
fictitious--on which states were founded and governed when
civilisation was in its cradle.
[Footnote 146: Maine, _Ancient Law_, p. 129.]
[Footnote 147: _Ibid._ p. 131.]
Like the smaller units, the archaic State was not only a
political but at the same time a religious community. Over and
above all separate cults there was one religion common to all its
citizens. In ancient Mexico and Peru it was the religion of the
dominant people, the worship of the god of war or of the sun; and
the sovereigns themselves were regarded as incarnations or
children of this god.[148] In other cases the state religion
arose by a fusion of different cults. The gods of the communities
which united into a state not only continued to receive the
worship of their old believers, but were elevated to the rank of
national deities, and formed together a heavenly commonwealth to
which the earthly commonwealth jointly paid its homage. In this
way, it seems, the Roman,[149] Egyptian,[150] Assyrian, and
Babylonian[151] pantheons were recruited; whilst the Greeks went
a step further and, already in prehistoric times, constructed a
Pan-Hellenic Olympus.[152] Sometimes also, as Professor Robertson
Smith points out, different gods were themselves fused into one,
as when the mass of the Israelites in their local worship of
Yahveh identified him with the Baalim of the Canaanite high
places, and carried {226} over into his worship the ritual of the
Canaanite shrines, not deeming that in so doing they were less
truly Yahveh-worshippers than before.[153]
[Footnote 148: Ratzel, _op. cit._ ii. 199 _sq._ Markham, _History
of Peru_, p. 23.]
[Footnote 149: _Cf._ von Jhering, _Geist des römischen Rechts_,
i. 269.]
[Footnote 150: Wiedemann, _Religion of the Ancient Egyptians_,
p. 148.]
[Footnote 151: Mürdter-Delitzsch, _Geschichte Babyloniens und
Assyriens_, p. 24. Robertson Smith, _Religion of the Semites_,
p. 39.]
[Footnote 152: _Cf._ Rohde, _Psyche_, p. 36.]
[Footnote 153: Robertson Smith, _op. cit._ p. 38.]
Nobody will deny that the common religion added strength to the
State, but it seems that its national importance has often been
overrated. On the one hand, the political fusion between
different communities took place before the religious fusion and
was obviously the cause of it; on the other hand, the mere tie of
a common religion has never proved sufficient to bind together
neighbouring tribes or peoples so as to form one nation. The
Greek states had both the same religion and the same language,
but nevertheless remained distinct states. Professor Seeley's
assertion that "in the East to this day nationality and religion
are almost convertible terms,"[154] is very far from the truth.
Wallin, who had exceptional opportunities to study the feelings
of different Muhammedan nationalities, observes that "every
Oriental people has a certain national aversion to every other,
and even the inhabitants of one province to those of another. The
Turk does not readily tolerate the Arab, nor the Persian, and
these feel similarly towards the Turk; the Arab does not get on
well with the Persian, nor the Persian with the Arab; the Syrian
does not like the Egyptian, whom he calls inhuman, and the latter
does not willingly associate with the Syrian, whom he calls
simple-minded and stupid; and the son of the desert condemns
both."[155] It sometimes seems as if the national spirit of a
people rather influenced its religion than was influenced by it.
Patriotism has even succeeded in nationalising the greatest enemy
of nationalities, Christianity, and has well nigh revived the old
notion of a national god, whose chief business is to look after
his own people and, especially, to fight its battles.
[Footnote 154: Seeley, _Natural Religion_, p. 229.]
[Footnote 155: Wallin, _Anteckningar från Orienten_, iv. 181 _sq._]
It is obvious that the various aspects of social development
{227} which we have now considered have exercised much influence
upon the altruistic sentiment. The combination of local proximity
and political unity, the notion of a common descent, and the
fellowship of a common religion, tend to engender friendly
feelings between the members of each respective group. Hence,
when the political unit grew larger, when the idea of kinship
developed into that of racial affinity, and when the same
religion became common to all the citizens of the State, or, as
happened in several cases, extended beyond the limits of any
particular country or nation, the altruistic sentiment underwent
a corresponding expansion--unless, of course, it was checked by
some rival influence. The increasing coherence of the political
aggregate, again, added to the strength of this sentiment; and so
did the antagonism towards foreign communities and the natural
antipathy or hatred to their members. As people like that to
which they are used or which is their own, they dislike that
which is strange or unfamiliar. Among ourselves we notice this
particularly in children[156] and uneducated persons, whose anger
may be aroused by the sight of a black skin or an oriental dress
or the sounds of a strange language. Antipathies of this kind
have directly influenced the moral valuation of conduct towards
foreigners; but at the same time they have also strengthened the
feelings of mutual goodwill between tribesmen or compatriots. For
likes and dislikes are increased by the contrast; to hate a thing
makes us better love its opposite. So also the competition and
enmity which prevail between different communities tend within
each community to intensify its members' devotion to the common
goal and their friendly feelings towards one another.
[Footnote 156: Compayré, _op. cit._ p. 100:--"Tout ce qui est
inattendu, imprévu, est insupportable à l'enfant, et provoque
soit la peur, soit plus tard la colère. J'ai vu un de mes fils, à
quatre ans et demi, entrer dans de véritables rages, toutes les
fois que je lui parlais dans le patois de mon pays."]
But the altruistic sentiment has not necessarily reference only
to individuals belonging to the same social unit. {228}
Gregarious animals may be kindly disposed to any member of their
species which is not an object of their anger or their fear.
Savages have shown themselves capable of tender feelings towards
suffering and harmless strangers.[157] The sensibility of little
children sometimes goes beyond the circle of the family; Madame
Manacéine tells us of a girl two years old who, in the Zoological
Gardens at St. Petersburg, began to cry bitterly when she saw an
elephant walking over the keeper's body, although the other
spectators were quietly watching the trick.[158] In mankind
altruism has been narrowed by social isolation, by differences in
race, language, habits, and customs, by enmity and suspicion. But
increased intercourse has gradually led to conditions favourable
to its expansion. As Buckle remarks, ignorance is the most
powerful of all the causes of national hatred; "when you increase
the contact, you remove the ignorance, and thus you diminish the
hatred."[159] People of different nationalities feel that in
spite of all dissimilarities between them there is much that they
have in common; and frequent intercourse makes the differences
less marked, or obliterates many of them altogether. There can be
no doubt that this process will go on in the future. And equally
certain it is that similar causes will produce similar
effects--that altruism will continue to expand, and that the
notion of a human brotherhood will receive more support from the
actual feelings of mankind than it does at present.
[Footnote 157: See _supra_, i. 570-572, 581.]
[Footnote 158: Manacéine, _Le surmenage mental dans la
civilisation moderne_, p. 248. See also Compayré, _op. cit._
p. 323.]
[Footnote 159: Buckle, _History of Civilization in England_,
i. 222.]
CHAPTER XXXV
SUICIDE
IN previous chapters we have discussed the moral valuation of
acts, forbearances, and omissions, which directly concern the
interests of other men; we shall now proceed to consider moral
ideas regarding such modes of conduct as chiefly concern a man's
own welfare. Among these we notice, in the first place, acts
affecting his existence.
Suicide, or intentional self-destruction, has often been
represented as a fruit of a higher civilisation; Dr. Steinmetz,
on the other hand, in his essay on 'Suicide among Primitive
Peoples,' thinks it probable that "there is a greater propensity
to suicide among savage than among civilised peoples."[1] The
former view is obviously erroneous; the latter probably holds
good of certain savages as compared with certain peoples of
culture, but cannot claim general validity.
[Footnote 1: Steinmetz, 'Suicide among Primitive Peoples,' in
_American Anthropologist_, vii. 60.]
Among several uncivilised races suicide is said to be unknown.[2]
To these belong some of the lower savages--the Yahgans of Tierra
del Fuego,[3] the Andaman Islanders,[4] {230} and various
Australian tribes;[5] whilst as regards most other tribes at
about the same stage of culture information seems to be wanting.
Of the natives in Western and Central Australia Sir G. Grey
writes, "Whenever I have interrogated them on this point, they
have invariably laughed at me, and treated my question as a
joke."[6] When a Caroline Islander was told of suicides committed
by Europeans, he thought that he had not grasped what was said to
him, as he never in his life had heard of anything so
ridiculous.[7] The Káfirs of the Hindu-Kush, though they have no
intense fear of death, cannot understand suicide; "the idea of a
man killing himself strikes them as inexplicable."[8]
[Footnote 2: Paulitschke, _Ethnographie Nord-ost-Afrikas_, p. 205
(Danakil and Galla). Munzinger, _Ostafrikanische Studien_, p. 532
(Barea and Kunáma). New, _Life, Wanderings, and Labours in
Eastern Africa_, p. 99 (Wanika). Felkin, 'Notes on the For Tribe
of Central Africa,' in _Proceed. Roy. Soc. Edinburgh_, xiii. 231.
Lumholtz (_Unknown Mexico_, i. 243) thinks it is doubtful whether
a pagan Tarahumare ever killed himself.]
[Footnote 3: Bridge, in _South American Missionary Magazine_,
xiii. 211.]
[Footnote 4: Man, _Jour. Anthr. Inst._ xii. 111.]
[Footnote 5: Grey, _Expeditions of Discovery in North-West and
Western Australia_, ii. 248. Curr, _Recollections of Squatting in
Victoria_, p. 277 (Bangerang). Among the tribes of Western
Victoria described by Mr. Dawson (_Australian Aborigines_, p. 62)
suicide is not unknown, though it is uncommon; "if a native
wishes to die, and cannot get any one to kill him, he will
sometimes put himself in the way of a venomous snake, that he may
be bitten by it."]
[Footnote 6: Grey, _op. cit._ ii. 248.]
[Footnote 7: von Kotzebue, _Voyage of Discovery into the South
Sea_, iii. 195.]
[Footnote 8: Scott Robertson, _Káfirs of the Hindu-Kush_, p. 381.]
Among many savages and barbarians suicide is stated to be very
rare,[9] or to occur only occasionally;[10] whereas {231} among
others it is represented as either common or extremely
prevalent.[11] Of the Kamchadales we are told that the least
apprehension of danger drives them to despair, and that they fly
to suicide as a relief, not only from present, but even from
imaginary evil; "not only those who are confined for some
offence, but such as are discontented with their lot, prefer a
voluntary death to an uneasy life, and the pains of disease."[12]
Among the Hos, an Indian hill tribe, suicide is reported to be so
frightfully prevalent as to afford no parallel in any known
country:--"If a girl appears mortified by anything that has been
said, it is not safe to let her go away till she is soothed. A
reflection on a man's honesty or veracity may be sufficient to
send him to self-destruction. In a recent case, a young woman
attempted to poison herself because her uncle would not partake
of the food she had cooked for him."[13] Among the Karens of
Burma suicide is likewise very common where Christianity has not
been introduced. If a man has some incurable or painful disease,
he says in a matter-of-fact way that he will hang himself, and he
does as he says; if a girl's parents compel her to marry the man
she does not love, she hangs herself; wives sometimes hang
themselves through jealousy, sometimes because they quarrel with
their husbands, and sometimes out of mere {232} chagrin, because
they are subject to depreciating comparisons; and it is a
favourite threat with a wife or daughter, when not allowed to
have her own way, that she will hang herself.[14] Among some
uncivilised peoples suicide is frequently practised by women,
though rarely by men.[15]
[Footnote 9: Nansen, _Eskimo Life_, p. 267 (Greenlanders).
Murdoch, 'Ethnol. Results of the Point Barrow Expedition,' in
_Ann. Rep. Bur. Ethn._ ix. 41 (Point Barrow Eskimo), von Siebold,
_Die Aino auf der Insel Yesso_, p. 35. von Stenin, 'Die Kirgisen
des Kreises Saissansk im Gebiete von Ssemipalatinsk,' in
_Globus_, lxix. 230. Beltrame, _Il Fiume Bianco_, p. 51 (Arabs).
Felkin, 'Waganda Tribe of Central Africa,' in _Proceed. Roy. Soc.
Edinburgh_, xiii. 723. Schwarz, quoted by Steinmetz,
_Rechtsverhältnisse_, p. 24 (Bakwiri). _Ibid._ p. 52 (Banaka and
Bapuku). Wandrer, _ibid._ p. 325 (Hottentots). Fritsch, _Die
Eingeborenen Süd-Afrika's_, p. 221 (Bantu race). Sorge, in
Steinmetz, _Rechtsverhältnisse_, p. 421 (Nissan Islanders in the
Bismarck Archipelago). Kubary, 'Die Verbrechen und das
Strafverfahren auf den Pelau-Inseln,' in _Original-Mittheilungen
aus der ethnol. Abtheil. d. königl. Museen zu Berlin_, i. 78
(Pelew Islanders). Among the Malays suicide is reported to be
extremely rare (Brooke, _Ten Years in Saráwak_, i. 56; Ellis,
'The Amok of the Malays,' in _Journal of Mental Science_, xxxix.
331); but Dr. Gilmore Ellis has been told by many Malays that
they consider Amok a kind of suicide. If a man wishes to die, he
"amoks" in the hope of being killed, rather than kills himself,
suicide being a most heinous sin according to the ethics of
Muhammedanism (_ibid._ p. 331). In Siam suicide is rare (Bowring,
_Siam_, i. 106). Of the Western Islanders of Torres Straits Dr.
Haddon says (in _Reports of the Cambridge Anthrop. Expedition to
Torres Straits_, v. 278) that he does not remember to have heard
of a case of suicide in real life, though there are some
instances of it in their folk-tales.]
[Footnote 10: Comte, quoted by Mouhot, _Travels in the Central
Parts of Indo-China_, ii. 27 _sq._ (Bannavs in Cambodia). Kloss,
_In the Andamans and Nicobars_, p. 316 (Nicobarese). Among the
Bakongo cases of suicide occur, "although much less frequently
than in civilised countries" (Ward, _Five Years with the Congo
Cannibals_, p. 45).]
[Footnote 11: Veniaminof, quoted by Petroff, _Report on Alaska_,
p. 158 (Atkha Aleuts). Steller, _Beschreibung von Kamtschatka_,
p. 293 _sq._, Krasheninnikoff, _History of Kamschatka_, pp. 176,
200. Georgi, _Russia_, iii. 133 _sq._ (Kamchadales), 184
(Chukchi), 205 (Aleuts). Brooke, _op. cit._ i. 55 (Sea Dyaks).
Williams and Calvert, _Fiji_, p. 106. Turner, _Samoa_, p. 305;
Tregear, 'Niue,' in _Jour. Polynesian Soc._ ii. 14; Thomson,
_Savage Island_, p. 109; Hood, _Cruise in the Western Pacific_,
p. 22 (Savage Islanders). Dieffenbach, _Travels in New Zealand_,
ii. 111 _sq._; Collins, _English Colony in New South Wales_, i.
524 (Maoris). Reade, _Savage Africa_, p. 553 _sq._; _Idem_,
quoted by Darwin, _Descent of Man_, p. 117, n. 33 (West African
Negroes). Monrad, _Skildring af Guinea-Kysten_, p. 23. Decle,
_Three Years in Savage Africa_, p. 74 (Barotse). In Tana, of the
New Hebrides (Gray, in _Jour. Anthr. Inst._ xxviii. 132) and Nias
(Rosenberg, _Der malayische Archipel_, p. 146) suicides are said
to be not infrequent.]
[Footnote 12: Georgi, _op. cit._ iii. 133 _sq._ _Cf._
Krasheninnikoff, _op. cit._ p. 176.]
[Footnote 13: Tickell, 'Memoir on the Hodésum,' in _Jour. Asiatic
Soc. Bengal_, ix. 807. Dalton, _Descriptive Ethnology of Bengal_,
p. 206.]
[Footnote 14: Mason, 'Dwellings, &c., of the Karens,' in _Jour.
Asiatic Soc. Bengal_, xxxvii. pt. ii. 141.]
[Footnote 15: Keating, _Expedition to the Source of St. Peter's
River_, i. 394 (Dacotahs); ii. 171 _sq._ (Chippewas). Bradbury,
_Travels in the Interior of America_, p. 87 (Dacotahs). Brooke
Low, quoted by Ling Roth, _Natives of Sarawak_, i. 117 (Sea
Dyaks). Munzinger, _Die Sitten und das Recht der Bogos_, p. 93.]
The causes which, among savages, lead to suicide are
manifold:--disappointed love or jealousy;[16] illness[17] or old
age;[18] grief over the death of a child,[19] a husband,[20] or a
{233} wife;[21] fear of punishment;[22] slavery[23] or brutal
treatment by a husband;[24] remorse,[25] shame or wounded pride,
anger or revenge.[26] In various cases an offended person kills
himself for the express purpose of taking revenge upon the
offender.[27] Thus among the Tshi-speaking peoples of the Gold
Coast, "should a person commit suicide, and before so doing
attribute the act to the conduct of another person, that other
person is required by native law to undergo a like fate. The
practice is termed killing oneself upon the head of another, and
the person whose conduct is supposed to have driven the suicide
to commit the rash act is visited with a death of an exactly
similar nature"--unless, indeed, the family of the suicide be
pacified with a money compensation.[28] With reference to the
Savage Islanders, who especially in heathen {234} times were much
addicted to suicide, we are told that, "like angry children, they
are tempted to avenge themselves by picturing the trouble that
they will bring upon the friends who have offended them."[29]
Among the Thlinkets an offended person who is unable to take
revenge in any other way commits suicide in order to expose the
person who gave the offence to the vengeance of his surviving
relatives and friends.[30] Among the Chuvashes it was formerly
the custom for enraged persons to hang themselves at the doors of
their enemies.[31] A similar method of taking revenge is still
not infrequently resorted to by the Votyaks, who believe that the
ghost of the deceased will then persecute the offender.[32]
Sometimes a suicide has the character of a human sacrifice.[33]
In the times of epidemics or great calamities the Chukchi
sacrifice their own lives in order to appease evil spirits and
the souls of departed relatives.[34] Among some savages it is
common for a woman, especially if married to a man of importance,
to commit suicide on the death of her husband,[35] or to demand
to be buried with him;[36] and many Brazilian Indians killed
themselves on the graves of their chiefs.[37]
[Footnote 16: Lasch, 'Der Selbstmord aus erotischen Motiven bei
den primitiven Völkern,' in _Zeitschrift für Socialwissenschaft_,
ii. 579 _sqq._ Westermarck, _History of Human Marriage_, p. 503.
Keating, _op. cit._ ii. 172 (Chippewas). Eastman, _Dacotah_,
pp. 89 _sqq._, 168 _sq._; Dodge, _Our Wild Indians_, p. 321 _sq._
(Dacotahs). Turner, 'Ethnology of the Ungava District, Hudson Bay
Territory,' in _Ann. Rep. Bur. Ethn._ xi. 187 (Koksoagmyut).
Mason, in _Jour. Asiatic Soc. Bengal_, xxxvii. pt. ii. 141
(Karens). Brooke Low, quoted by Ling Roth, _Natives of Sarawak_,
i. 115 (Sea Dyaks). Kubary, 'Religion der Pelauer,' in Bastian,
_Allerlei aus Volks- und Menschenkunde_, i. 3 (Pelew Islanders).
Senfft, in Steinmetz, _Rechtsverhältnisse_, p. 452 (Marshall
Islanders). Codrington, _Melanesians_, p. 243 _sq._ (natives of
the Banks' Islands and Northern New Hebrides). Waitz,
_Anthropologie der Naturvölker_, vi. 115; Malone, _Three Years'
Cruise in the Australasian Colonies_, p. 72 _sq._ (Maoris).
Reade, _Savage Africa_, p. 554 (West African Negroes). Munzinger,
_Die Sitten und das Recht der Bogos_, p. 93 _sq._]
[Footnote 17: Dodge, _op. cit._ p. 321 _sq._ (North American
Indians) Holm, 'Ethnologisk Skizze af Angmagsalikerne,' in
_Meddelelser om Grönland_, x. 181 (Angmagsaliks of Eastern
Greenland). Georgi, _op. cit._ iii. 134 (Kamchadales). Mason, in
_Jour. Asiatic Soc. Bengal_, xxxvii. pt. ii. 141 (Karens). Gray,
in _Jour. Anthr. Inst._ xxviii. 132 (natives of Tana, New
Hebrides). Sartori, 'Die Sitte der Alten- und Krankentötung,' in
_Globus_, lxvii. 109 _sq._]
[Footnote 18: Perrin du Lac, _Voyage dans les deux Louisianes_,
p. 346. Nansen, _First Crossing of Greenland_, ii. 331; _Idem_,
_Eskimo Life_, pp. 170, 267 (Greenlanders). Steller,
_Beschreibung von Kamtschatka_, p. 294. Wilkes, _U.S. Exploring
Expedition_, iii. 96; Hale, _U.S. Exploring Expedition. Vol. VI.
Ethnography and Philology_, p. 65 (Fijians). Diodorus Siculus,
_Bibliotheca historica_, iii. 33.5 (Troglodytes). Pomponius Mela,
_De situ orbis_, iii. 7 (Seres). Hartknoch, _Alt- und Neues
Preussen_, i. 181 (ancient Prussians). Mareschalcus, _Annales
Herulorum ac Vandalorum_, i. 8 (_Monumenta inedita rerum
Germanicarum_, i. 191); Procopius, _De bello Gothico_, ii. 14
(Heruli). Maurer, _Die Bekehrung des Norwegischen Stammes zum
Christenthume_, ii. 79, n. 48 (ancient Scandinavians).]
[Footnote 19: Veniaminof, quoted by Petroff, _op. cit._ p. 158
(Atkha Aleuts). Keating, _op. cit._ ii. 172 (Chippewas). Colenso,
_Maori Races_, pp. 46, 57; Dieffenbach, _op. cit._ ii. 112
(Maoris).]
[Footnote 20: Veniaminof, quoted by Petroff, _op. cit._ p. 158
(Atkha Aleuts). Haddon, in _Rep. Cambridge Anthr. Exped. to
Torres Straits_, v. 17 (Western Islanders, according to a
Kauralaig folk-tale). Colenso, _op. cit._ pp. 46, 57;
Dieffenbach, _op. cit._ ii. 112 (Maoris).]
[Footnote 21: Veniaminof, quoted by Petroff, _op. cit._ p. 158
(Atkha Aleuts). Fawcett, _Saoras_, p. 17. Dieffenbach, _op. cit._
ii. 112 (Maoris).]
[Footnote 22: Steller, _Beschreibung von Kamtschatka_, p. 293.
Dieffenbach, _op. cit._ ii. 112 (Maoris).]
[Footnote 23: Modigliani, _Viaggio a Nías_, p. 473. Decle, _op.
cit._ p. 74 (Barotse). Monrad, _op. cit._ p. 25 (Negroes of
Accra). Donne, _Biathanatos_, p. 56 (American Indians).]
[Footnote 24: Wied-Neuwied, _Travels in the Interior of North
America_, p. 349 (Mandans).]
[Footnote 25: Turner, in _Ann. Rep. Bur. Ethn._ xi. 187
(Koksoagmyut). Mr. Dawson (_Australian Aborigines_, p. 62 _sq._)
tells us of a native of Western Victoria who decided to commit
suicide because, being intoxicated, he had killed his wife, and
was so sorry for it. He besought the tribe to kill him, and
seeing his determination to starve himself to death, his friends
at last sent for the tribal executioner, who pushed a spear
through him.]
[Footnote 26: Veniaminof, quoted by Petroff, _op. cit._ p. 158
(Atkha Aleuts). Keating, _op. cit._ ii. 171 (Chippewas). Dalton,
_op. cit._ p. 206; Jickell, in _Jour. Asiatic Soc. Bengal_, ix.
807 (Hos). Colquhoun, _Amongst the Shans_, p. 76 _sq._ (Lethtas).
Mac Mahon, _Far Cathay_, p. 241 (Tarus, one of the Chino-Burmese
border tribes). Brooke, _op. cit._ i. 55 (Sea Dyaks). Chalmers,
_Pioneer Life and Work in New Guinea_, p. 227 (a woman at Port
Moresby; Mr. Abel [_Savage Life in New Guinea_, p. 102] speaks of
a New Guinea woman who was so annoyed because her old village
friends had not visited her during her illness that she attempted
to commit suicide). Codrington, _op. cit._ p. 243 _sq._ (natives
of the Banks' Islands and Northern New Hebrides). Williams and
Calvert, _op. cit._ p. 106 (Fijians). Tregear, in _Jour.
Polynesian Soc._ ii. 14 (Savage Islanders). Dieffenbach, _op.
cit._ ii. 111 _sq._; Collins, _op. cit._ i. 524; Angas, _Savage
Life in Australia and New Zealand_, ii. 45; Colenso, _op. cit._
p. 56 _sq._ (Maoris). Ward, _Five Years with the Congo
Cannibals_, p. 45 (Bakongo). Lasch, 'Besitzen die Naturvölker ein
persönliches Ehrgefühl?' in _Zeitschr. f. Socialwissenschaft_,
iii. 837 _sqq._]
[Footnote 27: See Lasch, 'Rache als Selbstmordmotiv,' in
_Globus_, lxxiv. 37 _sqq._; Steinmetz, 'Gli antichi scongiuri
giuridici contro i creditori,' in _Rivista italiana di
sociologia_, ii. 49 _sqq._]
[Footnote 28: Ellis, _Tshi-speaking Peoples of the Gold Coast_,
p. 302. The same custom is mentioned by Monrad (_op. cit._ p. 23
_sq._), Bowdich (_Mission to Ashantee_, pp. 256, 257, 259 n. [double
dagger]), and Reade (_Savage Africa_, p. 554).]
[Footnote 29: Thomson, _Savage Island_, p. 109.]
[Footnote 30: Krause, _Die Tlinkit-Indianer_, p. 222.]
[Footnote 31: Lebedew, 'Die simbirskischen Tschuwaschen,' in
Erman's _Archiv für wissenschaftliche Kunde von Russland_, ix.
586 n. **]
[Footnote 32: Buch, 'Die Wotjaken,' in _Acta Soc. Scient.
Fennicæ_, xii. 611 _sq._]
[Footnote 33: See Lasch, 'Religiöser Selbstmord und seine
Beziehung zum Menschenopfer.' in _Globus_, lxxv. 69 _sqq._]
[Footnote 34: Skrzyncki, 'Der Selbstmord bei den Tschuktschen,'
in _Am Ur-Quell_, v. 207 _sq._]
[Footnote 35: Ashe, _Two Kings of Uganda_, p. 342 (Wahuma).
Johnston, _Uganda Protectorate_, ii. 610 (Bairo). Junghuhn, _Die
Battaländer auf Sumatra_, ii. 340 (natives of Bali and Lombok).]
[Footnote 36: Westermarck, _History of Human Marriage_, p. 125
(Fijians). Codrington, _op. cit._ p. 289 (natives of Aurora
Island, New Hebrides).]
[Footnote 37: Dorman, _Origin of Primitive Superstitions_, p.
211. _Cf._ _ibid._ p. 209. Of the Niger Delta tribes M. le Comte
de Cardi writes (in _Jour. Anthr. Inst._ xxix. 55):--"On the
deportation of a king or a chief by the British or other European
government for some offence I have seen the wives of the deported
man throw themselves into the river and fight like mad women with
the people who went to their rescue; I have also seen some of the
male retainers both free and slaves of a deported chief attempt
their own lives at the moment when the vessel carrying away their
chief disappeared from their sight."]
In various other cases, besides the voluntary sacrifices of
widows or slaves, the suicides of savages are connected with
their notions of a future life.[38] The belief in the new {235}
human birth of the departed soul has led West African negroes to
take their own lives when in distant slavery, that they may
awaken in their native land.[39] Among the Chukchi there are
persons who kill themselves for the purpose of effecting an
earlier reunion with their deceased relatives.[40] Among the
Samoyedes it happens that a young girl who is sold to an old man
strangles herself in the hope of getting a more suitable
bridegroom in the other world.[41] We are told that the
Kamchadales inflict death on themselves with the utmost coolness
because they maintain that "the future life is a continuation of
the present, but much better and more perfect, where they expect
to have all their desires more completely satisfied than
here."[42] The suicides of old people, again, are in some cases
due to the belief that a man enters into the other world in the
same condition in which he left this one, and that it consequently
is best for him to die before he grows too old and feeble.[43]
[Footnote 38: _Cf._ Steinmetz, in _American Anthropologist_, vii.
60; Vierkandt, _Naturvölker und Kulturvölker_, p. 284; Lasch, in
_Zeitschrift für Socialwissenschaft_, ii. 585.]
[Footnote 39: Tylor, _Primitive Culture_, ii. 5.]
[Footnote 40: Skrzyncki, in _Am Ur-Quell_, v. 207.]
[Footnote 41: von Struve, 'Die Samojeden im Norden von Sibirien,'
in _Ausland_, 1880, p. 777.]
[Footnote 42: Georgi, _op. cit._ iii. 265. _Cf._ Steller,
_Beschreibung von Kamtschatka_, p. 294.]
[Footnote 43: Hale, _op. cit._ p. 65 (Fijians). _Cf._ _supra_,
i. 390.]
The notions of savages concerning life after death also influence
their moral valuation of suicide. Where men are supposed to
require wives not only during their lifetime, but after their
death, it may be a praiseworthy thing, or even a duty, for a
widow to accompany her husband to the land of souls. According to
Fijian beliefs, the woman who at the funeral of her husband met
death with the greatest devotedness would become the favourite
wife in the abode of spirits, whereas a widow who did not permit
herself to be killed was considered an adulteress.[44] Among the
Central African Bairo those women who refrained from destroying
themselves over their husbands' graves were regarded as
outcasts.[45] On the Gold Coast a man of low rank who has married
one of the king's sisters is {236} expected to make away with
himself when his wife dies, or upon the death of an only male
child; and "should he outrage native custom and neglect to do so,
a hint is conveyed to him that he will be put to death, which
usually produces the desired effect."[46] The customary suicides
of the Chukchi are solemnly performed in the presence and with
the assistance of relatives and neighbours.[47] The Samoyedes
maintain that suicide by strangulation "is pleasing to God, who
looks upon it as a voluntary sacrifice, which deserves
reward."[48] The opinion of the Kamchadales that it is "allowable
and praiseworthy" for a man to take his own life,[49] was
probably connected with their optimistic notions about their fate
after death. And that the habitual suicides of old persons have
the sanction of public opinion is particularly obvious where they
may choose between killing themselves and being killed.[50]
[Footnote 44: Westermarck, _op. cit._ p. 125 _sq._]
[Footnote 45: Johnston, _Uganda Protectorate_, i. 610.]
[Footnote 46: Ellis, _Tshi-speaking Peoples of the Gold Coast_,
p. 287.]
[Footnote 47: Skrzyncki, in _Am Ur-Quell_, v. 208.]
[Footnote 48: von Struve, in _Ausland_, 1880, p. 777.]
[Footnote 49: Steller, _op. cit._ p. 269. _Cf._ Krasheninnikoff,
_op. cit._ p. 204.]
[Footnote 50: _Supra_, i. 389 _sq._ (Fijians). Nansen, _First
Crossing of Greenland_, ii. 331. Steller, _op. cit._ p. 294
(Kamchadales).]
Whilst in some cases suicide opens the door to a happy land
beyond the grave, it in other cases entails consequences of a
very different kind. The Omahas believe that a self-murderer
ceases to exist.[51] According to the Thompson Indians in British
Columbia, "the souls of people who commit suicide do not go to
the land of souls. The shamans declare they never saw such people
there; and some say that they have looked for the souls of such
people, but could not find their tracks. Some shamans say they
cannot locate the place where the souls of suicides go, but think
they must be lost, because they seem to disappear altogether.
Others say that these souls die, and cease to exist. Still others
claim that the souls never leave the earth, but wander around
aimlessly."[52] So also the Jakuts believe that the ghost of a
self-murderer never {237} comes to rest.[53] Sometimes the fate
of suicides after death is represented as a punishment which they
suffer for their deed. Thus the Dacotahs, among whom women not
infrequently put an end to their existence by hanging themselves,
are of opinion that suicide is displeasing to the "Father of
Life," and will be punished in the land of spirits by the ghost
being doomed for ever to drag the tree on which the person hanged
herself; hence the women always suspend themselves to as small a
tree as can possibly sustain their weight.[54] The Pahárias of
the Rájmahal Hills, in India, say that "suicide is a crime in
God's eyes," and that "the soul of one who so offends shall not
be admitted into heaven, but must hover eternally as a ghost
between heaven and earth,"[55] The Kayans of Borneo maintain that
self-murderers are sent to a place called _Tan Tekkan_, where
they will be very poor and wretched, subsisting on leaves, roots,
or anything they can pick up in the forests, and being easily
distinguished by their miserable appearance.[56] According to
Dyak beliefs, they go to a special place, where those who have
drowned themselves must thenceforth live up to their waists in
water, and those who have poisoned themselves must live in houses
built of poisonous woods and surrounded by noxious plants, the
exhalations of which are painful to the spirits.[57] In other
instances we are simply told that the souls of suicides, together
with those of persons who have been killed in war,[58] or who
have died a violent death,[59] are not permitted to live with the
rest of the souls, to whom their presence would cause uneasiness.
Among the Hidatsa Indians some people say that the ghosts of men
{238} who have made away with themselves occupy a separate part
of the village of the dead, but that their condition in no other
wise differs from that of the other ghosts.[60]
[Footnote 51: La Flesche, 'Death and Funeral Customs among the
Omahas,' in _Jour. of American Folk-Lore_, ii. 11.]
[Footnote 52: Teit, 'Thompson Indians of British Columbia,' in
_Memoirs of the American Museum of Natural History_,
Anthropology, i. 358 _sq._]
[Footnote 53: Sumner, in _Jour. Anthr. Inst._ xxxi. 101.]
[Footnote 54: Bradbury, _Travels in the Interior of America_, p.
89. _Cf._ Keating, _op. cit._ i. 394.]
[Footnote 55: Dalton, _Descriptive Ethnology of Bengal_, p. 268.
_Cf._ Sherwill, 'Tour through the Rájmahal Hills,' in _Jour.
Asiatic Soc. Bengal_, xx. 556.]
[Footnote 56: Hose, 'Journey up the Baram River to Mount Dulit
and the Highlands of Borneo,' in _Geographical Journal_, i. 199.]
[Footnote 57: Wilken, _Het animisme bij de volken van den
Indischen Archipel_, i. 44.]
[Footnote 58: Brebeuf, 'Relation de ce qui s'est passé dans le
pays des Hurons,' in _Relations des Jésuites_, 1636, p. 104 _sq._
Hewitt, 'The Iroquoian Concept of the Soul,' in _Jour. of
American Folk-Lore_, viii. 109.]
[Footnote 59: Steinmetz, in _American Anthropologist_, vii. 58
(Niase).]
[Footnote 60: Matthews, _Ethnography and Philology of the Hidatsa
Indians_, p. 49.]
It is, however, hard to believe that the fate of the
self-murderer, whether it be annihilation, a vagrant existence on
earth, or separation in the other world, was originally meant as
a punishment; for a similar lot is assigned to the souls of
persons who have been drowned,[61] or who have died by accident
or violence.[62] It seems that the suicide's future state is in
the first place supposed to depend upon the treatment of his
corpse. Frequently he is denied burial, or at least the ordinary
funeral rites,[63] and this may give rise to the notion that his
soul never comes to rest or, possibly, even ceases to exist. Or
he is buried by himself, apart from the other dead,[64] in which
case his soul must naturally remain equally isolated. Among the
Alabama Indians, for instance, "when a man kills himself, either
in despair or in a sickness, he is deprived of burial, and thrown
into the river."[65] In Dahomey "the body of any person
committing suicide is not allowed to be buried, but thrown out
into the fields to be devoured by wild beasts."[66] Among the
Fantis of the Gold Coast "il y a des places réservées aux
suicides et à ceux qui sont morts de la petite vérole. Ils sont
enterrés à l'écart loin de toute {239} habitation et de tout
chemin public."[67] In the Pelew Islands a self-murderer is
buried not with his own deceased relatives, but in the place
where he ended his life, as are also the corpses of those who
fall in war.[68] Among the Bannavs of Cambodia "anyone who
perishes by his own hand is buried in a corner of the forest far
from the graves of his brethren."[69] Among the Sea Dyaks "those
who commit suicide are buried in different places from others, as
it is supposed that they will not be allowed to mix in the
seven-storied heaven with such of their fellow-country men as
come by their death in a natural manner or from the influence of
the spirits."[70] The motive for thus treating self-murderers'
bodies is superstitious fear. Their ghosts, as the ghosts of
persons who have died by any other violent means or by accident,
are supposed to be particularly malevolent,[71] owing to their
unnatural mode of death[72] or to the desperate or angry state of
mind in which they left this life. If they are not buried at all,
or if they are buried in the spot where they died or in a
separate place, that is either because nobody dares to interfere
with them, or in order to prevent them from mixing with the other
dead. So also murdered persons are sometimes left unburied,[73]
and people who are supposed to have been killed by evil spirits
are buried apart;[74] whilst those struck with lightning are
either denied interment,[75] or buried where they fell and in the
position in which they died.[76] We sometimes hear of a
connection between the way in which a suicide's body is treated
and the moral opinion as regards his deed. Among the Alabama
Indians his corpse {240} is said to be thrown into the river
"because he is looked upon as a coward";[77] and of the Ossetes
M. Kovalewsky states that they bury suicides far away from other
dead persons because they regard their act as sinful.[78] But we
may be sure that moral condemnation is not the original cause of
these practices.
[Footnote 61: Teit, _loc. cit._ p. 359 (Thompson Indians).]
[Footnote 62: Soppitt, _Kuki-Lushai Tribes_, p. 12. Anderson,
_Mandalay to Momien_, p. 146 (Kakhyens). Müller, _Geschichte der
Amerikanischen Urreligionen_, p. 287 (Brazilian Indians).
_Supra_, ii. 237. The Central Eskimo believe that all who die by
accident or by violence, and women who die in childbirth, are
taken to the upper, happier world (Boas, 'Central Eskimo,' in
_Ann. Rep. Bur. Ethn._ vi. 590). According to the belief of the
Behring Strait Eskimo, the shades of shamans, or persons who die
by accident, violence, or starvation, go to a land of plenty in
the sky, where there is light, food, and water in abundance,
whereas the shades of people who die from natural causes go to
the underground land of the dead (Nelson, 'Eskimo about Bering
Strait,' in _Ann. Rep. Bur. Ethn._ xviii. 423).]
[Footnote 63: See Lasch, 'Die Behandlung der Leiche des
Selbstmorders,' in _Globus_, lxxvi. 63 _sqq._]
[Footnote 64: _Ibid._ p. 65.]
[Footnote 65: Bossu, _Travels through Louisiana_, i. 258.]
[Footnote 66: M'Leod, _Voyage to Africa_, p. 48 _sq._ I am
indebted to Mr. N. W. Thomas for drawing my attention to this and
a few other statements in the present chapter.]
[Footnote 67: Gallaud, 'A la Côte d'Or,' in _Les missions
catholiques_, xxv. 347.]
[Footnote 68: Kubary, in _Original-Mittheil. aus der ethnol.
Abtheil. d. königl. Museen zu Berlin_, i. 78.]
[Footnote 69: Comte, quoted by Mouhot, _op. cit._ ii. 28. See
also 'Das Volk der Bannar,' in _Mittheil. d. Geogr. Ges. zu
Jena_, iii. 9.]
[Footnote 70: St. John, _Life in the Forests of the Far East_,
i. 69.]
[Footnote 71: Lasch, in _Globus_, lxxvi. 65. _Cf._ Liebrecht,
_Zur Volkskunde_, p. 414 _sq._]
[Footnote 72: Lippert, _Der Seelencult_, p. 11. Kubary, in
_Original-Mittheil. aus der ethnol. Abtheil. d. königl. Museen zu
Berlin_, i. 78.]
[Footnote 73: Rosenberg, _Der malayische Archipel_, p. 461
(Papuans of Dorey).]
[Footnote 74: Hodson, 'Native Tribes of Manipur,' in _Jour.
Anthr. Inst._ xxxi. 305 _sq._]
[Footnote 75: Burton, _Mission to Gelele_, ii. 142 _sq._
(Dahomans).]
[Footnote 76: La Flesche, in _Jour. American Folk-Lore_, ii. 11
(Omahas).]
[Footnote 77: Bossu, _op. cit._ i. 258.]
[Footnote 78: Kovalewsky, _Coutume contemporaine et loi
ancienne_, p. 327.]
It is comparatively seldom that savages are reported to attach
any stigma to suicide. To the instances mentioned above a few
others may be added. The Waganda, we are told, greatly condemn
the act.[79] Among the Bogos "a man never despairs, never gives
himself up, and considers suicide as the greatest indignity."[80]
The Karens of Burma deem it an act of cowardice; but at the same
time they have no command against it, they "seem to see little or
no guilt in it," and "we are nowhere told that it is displeasing
to the God of heaven and earth."[81] The Dacotahs said of a girl
who had destroyed herself because her parents had turned her
beloved from the wigwam, and would force her to marry a man she
hated, that her spirit did not watch over her earthly remains,
being offended when she brought trouble upon her aged mother and
father.[82] In Dahomey "it is criminal to attempt to commit
suicide, because every man is the property of the king. The
bodies of suicides are exposed to public execration, and the head
is always struck off and sent to Agbomi; at the expense of the
family if the suicide were a free man, at that of his master if
he were a slave."[83] On the other hand, it is expressly stated
of various savages that they do not punish attempts to commit
suicide.[84] The negroes of Accra see nothing wrong in the act.
"Why," they would ask, "should a person not be {241} allowed to
die, when he no longer desires to live?" But they inflict cruel
punishments upon slaves who try to put an end to themselves, in
order to deter other slaves from doing the same.[85] Among the
Pelew Islanders suicide "is neither praised nor blamed."[86] The
Eskimo around Northumberland Inlet and Davis Strait believe that
any one who has been killed by accident, or who has taken his own
life, certainly goes to the happy place after death.[87] The
Chippewas hold suicide "to be a foolish, not a reprehensible
action," and do not believe it to entail any punishment in the
other world.[88] In his sketches of the manners and customs of
the North American Indians, Buchanan writes:--"Suicide is not
considered by the Indians either as an act of heroism or of
cowardice, nor is it with them a subject of praise or blame. They
view this desperate act as the consequence of mental derangement,
and the person who destroys himself is to them an object of
pity."[89]
[Footnote 79: Felkin, in _Proceed. Roy. Soc. Edinburgh_, xiii. 723.]
[Footnote 80: Munzinger, _Die Sitten und das Recht der Bogos_,
p. 93.]
[Footnote 81: Mason, in _Jour. Asiatic Soc. Bengal_, xxxvii. pt.
ii. 141.]
[Footnote 82: Eastman, _op. cit._ p. 169.]
[Footnote 83: Ellis, _E[(w]e-speaking Peoples_, p. 224.]
[Footnote 84: Leuschner, in Steinmetz, _Rechtsverhältnisse_, p.
24 (Bakwiri). Nicole, _ibid._ p. 135 (Diakité-Sarracolese). Lang,
_ibid._ p. 262 (Washambala). Rautanen, _ibid._ p. 343 (Ondonga).
Sorge, _ibid._ p. 421 (Nissan Islanders). Senfft, _ibid._ p. 452
(Marshall Islanders).]
[Footnote 85: Monrad, _op. cit._ pp. 23, 25.]
[Footnote 86: Kubary, in _Original-Mittheil. aus der ethnol.
Abtheil. d. königl. Museen zu Berlin_, i. 78.]
[Footnote 87: Hall, _Arctic Researches_, p. 572. _Cf._ _supra_,
ii. 238, n. 3.]
[Footnote 88: Keating, _op. cit._ ii. 172.]
[Footnote 89: Buchanan, _Sketches of the History, &c. of the
North American Indians_, p. 184.]
From the opinions on suicide held by uncivilised races we shall
pass to those prevalent among peoples of a higher culture. In
China suicide is extremely common among all classes and among
persons of all ages.[90] For those who have been impelled to this
course by a sense of honour the gates of heaven open wide, and
tablets bearing their names are erected in the temples in honour
of virtuous men or women. As honourable self-murderers are
regarded servants or officers of state who choose not to survive
a defeat in battle or an insult offered to the sovereign of their
country; young men who, when an insult has been paid to their
parents which they are unable to avenge, prefer not to survive
it; and women who kill {242} themselves on the death of their
husbands or _fiancés_.[91] In spite of imperial prohibitions,
sutteeism of widowed wives and brides has continued to flourish
in China down to this day, and meets with the same public
applause as ever;[92] whilst those widowed wives and brides who
have lost their lives in preserving their chastity, are entitled
both to an honorary gate and to a place in a temple of the State
as an object of worship.[93] Another common form of suicide which
is admired as heroic in China is that committed for the purpose
of taking revenge upon an enemy who is otherwise out of
reach--according to Chinese ideas a most effective mode of
revenge, not only because the law throws the responsibility of
the deed on him who occasioned it, but also because the
disembodied soul is supposed to be better able than the living
man to persecute the enemy.[94] The Chinese have a firm belief in
the wandering spirits of persons who have died by violence; thus
self-murderers are supposed to haunt the places where they
committed the fatal deed and endeavour to persuade others to
follow their example, at times even attempting to play
executioner by strangling those who reject their advances.[95]
"Violent deaths," says Mr. Giles, "are regarded with horror by
the Chinese";[96] and suicides committed from meaner motives are
reprobated.[97] It is said in the Yü Li, or "Divine Panorama"--a
Taouist work which is very popular all over the Chinese
Empire--that whilst persons who kill themselves out of loyalty,
filial piety, chastity, or friendship, will go to heaven, those
who do so "in a trivial burst of rage, or fearing the
consequences of a crime which would not amount to death, or in
the hope of falsely injuring a {243} fellow-creature," will be
severely punished in the infernal regions.[98] No pardon will be
granted them; they are not, like other sinners, allowed to claim
their good works as a set-off against evil, whereby they might
partly escape the agonies of hell and receive some reward for
their virtuous deeds.[99] Sometimes suicide is classified by the
Chinese as an offence against religion, on the ground that a
person owes his being to Heaven, and is therefore responsible to
Heaven for due care of the gift.[100]
[Footnote 90: Gray, _China_, i. 329. Huc, _The Chinese Empire_,
p. 181. Matignon, 'Le suicide en Chine,' in _Archives
d'anthropologie criminelle_, xii. 367 _sqq._ Cathonay, 'Aux
environs de Foutchéon,' in _Les missions catholiques_, xxxi. 341
_sq._ Ball, _Things Chinese_, p. 564 _sqq._]
[Footnote 91: Gray, _op. cit._ i. 337 _sqq._]
[Footnote 92: de Groot, _Religious System of China_, (vol. ii.
book) i. 748. Ball, _op. cit._ p. 565. Cathonay, in _Les missions
catholiques_, xxxi. 341.]
[Footnote 93: de Groot, _op. cit._ (vol. ii. book) i. 792.]
[Footnote 94: Huc, _op. cit._ p. 181. Matignon, in _Archives
d'anthropologie criminelle_, xii. 371 _sqq._ de Groot, _op. cit._
(vol. iv. book) ii. 450 _sq._ Cathonay, in _Les missions
catholiques_, xxxi. 341 _sq._ Ball, _op. cit._ p. 566 _sq._]
[Footnote 95: Davis, _China_, ii. 94. Dennys, _Folk-Lore of
China_, p. 74 _sq._]
[Footnote 96: Giles, _Strange Stories from a Chinese Studio_,
ii. 363, n. 9.]
[Footnote 97: Gray, _op. cit._ i. 337.]
[Footnote 98: Giles, _op. cit._ ii. 365.]
[Footnote 99: _Ibid._ ii. 363.]
[Footnote 100: Alabaster, _Notes and Commentaries on Chinese
Criminal Law_, p. 304.]
"The Japanese calendar of saints," says Mr. Griffis, "is not
filled with reformers, alms-givers, and founders of hospitals or
orphanages, but is overcrowded with canonised suicides and
committers of _harakiri_. Even to-day, no man more . . . surely
draws homage to his tomb, securing even apotheosis, than the
suicide, though he may have committed a crime."[101] There were
two kinds of _harakiri_, or "belly-cutting," one obligatory and
the other voluntary. The former was a boon granted by government,
who graciously permitted criminals of the Samurai, or military,
class thus to destroy themselves instead of being handed over to
the common executioner; but this custom is now quite extinct.
Voluntary _harakiri_, again, was practised out of loyalty to a
dead superior, or in order to protest, when other protests might
be unavailing, against the erroneous conduct of a living
superior, or to avoid beheading by the enemy in a lost battle, or
to restore injured honour if revenge was impossible. Under any
circumstances _harakiri_ cleansed from every stain, and ensured
an honourable interment and a respected memory.[102] It is said
in a Japanese manuscript, "To slay his enemy against whom he has
cause of hatred, and then to kill himself, is the part of a noble
Samurai, and it is sheer nonsense to look upon the place where he
has disembowelled {244} himself as polluted."[103] In old days
the ceremony used to be performed in a temple.[104]
[Footnote 101: Griffis, _Religions of Japan_, p. 112.]
[Footnote 102: Chamberlain, _Things Japanese_, p. 219 _sqq._
Rein, _Japan_, p. 328. Kühne, in _Globus_, lxxiv. 166 _sq._ A
very full account of the ceremony of _harakiri_ is given in
Mitford's _Tales of Old Japan_, ii. 193 _sqq._, from a rare
Japanese manuscript.]
[Footnote 103: Mitford, _op. cit._ ii. 201.]
[Footnote 104: _Ibid._ ii. 196.]
Among the Hindus we meet with the practice of self-immolation of
widows--until recently very prevalent in many parts of
India[105]--and various forms of self-destruction for religious
purposes. Suicide has always been considered by the Hindus to be
one of the most acceptable rites that can be offered to their
deities. According to the Ayen Akbery, there were five kinds of
suicide held to be meritorious in the Hindu, namely:--starving;
covering himself with cow-dung and setting it on fire and
consuming himself therein; burying himself in snow; immersing
himself in the water at the extremity of Bengal, where the Ganges
discharges itself into the sea through a thousand channels,
enumerating his sins, and praying till the alligators come and
devour him; cutting his throat at Allahabad, at the confluence of
the Ganges and Jumna.[106] To these might be added drowning at
Hurdwar, Allahabad, and Saugor; perishing in the cold of the
Himalayas; the practice of dying under the wheels of Juggurnath's
car;[107] and the custom of men throwing themselves down from
certain rocks to fulfil the vows of their mothers, or to receive
forgiveness for sins, or to be re-born rajas in their next state
of transmigration.[108] It is also common for persons who are
afflicted with leprosy or any other incurable disease to bury or
drown themselves with due ceremonies, by which they are
considered acceptable sacrifices to the deity,[109] or to roll
themselves into fires with the notion that thus purified they
will receive a happy transmigration into a healthy body.[110]
Suicide was further {245} resorted to by Brâhmans for the purpose
of avenging an injury, as it was believed that the ghost of the
deceased would persecute the offender, and, presumably, also
because of the great efficacy which was attributed to the curse
of a dying Brâhman.[111] When one of the Rajput rajas once levied
a war-subsidy on the Brâhmans, some of the wealthiest, having
expostulated in vain, poniarded themselves in his presence,
pouring maledictions on his head with their last breath; and thus
cursed, the raja laboured under a ban of excommunication even
amongst his personal friends.[112] We are told of a Brâhman girl
who, having been seduced by a certain raja, burned herself to
death, and in dying imprecated the most fearful curses on the
raja's kindred, after which they were visited with such a
succession of disasters that they abandoned their family
settlement at Baliya, where the woman's tomb is worshipped to
this day.[113] Once when a raja ordered the house of a Brâhman to
be demolished and resumed the lands which had been conferred upon
him, the latter fasted till he died at the palace gate, and
became thus a Brahm, or malignant Brâhman ghost, who avenged the
injury he had suffered by destroying the raja and his house.[114]
At Azimghur, in 1835, a Brâhman "threw himself down a well, that
his ghost might haunt his neighbour."[115] The same idea
undoubtedly underlies the custom of "sitting _dharna_" which was
practised by creditors who sat down before the doors of their
debtors threatening to starve themselves to death if their claims
were not paid;[116] and the sin attached to causing the death of
a Brâhman would further increase the efficacy of the creditor's
threats.[117] At the same time religious suicide is said to be a
crime in a Brâhman.[118] And in the sacred books we read that for
him who destroys {246} himself by means of wood, water, clods of
earth, stones, weapons, poison, or a rope, no funeral rites shall
be performed by his relatives;[119] that he who resolves to die
by his own hand shall fast for three days; and that he who
attempts suicide, but remains alive, shall perform severe
penance.[120] The Buddhists allow a man under certain
circumstances to take his own life, but maintain that generally
dire miseries are in store for the self-murderer, and look upon
him as one who must have sinned deeply in a former state of
existence.[121] It should be added that in India, as elsewhere,
the souls of those who have killed themselves or met death by any
other violent means are regarded as particularly malevolent and
troublesome.[122]
[Footnote 105: Malcolm, _Memoir of Central India_, ii. 206 _sqq._
Chevers, _Manual of Medical Jurisprudence for India_, p. 665.
_Cf._ _supra_, i. 473 _sq._ Sir John Malcolm observes (_op. cit._
ii. 206, n. [double dagger]) that the practice of suttee was not
always confined to widows, but that sometimes mothers burned
themselves on the death of their only sons.]
[Footnote 106: Chevers, _op. cit._ p. 664. _Cf._ _Laws of Manu_,
vi. 31.]
[Footnote 107: _Ibid._ p. 664. Ward, _View of the History, &c. of
the Hindoos_, ii. 115 _sqq._ Rájendralála Mitra, _Indo-Aryans_,
ii. 70.]
[Footnote 108: Sleeman, _Rambles and Recollections of an Indian
Official_, i. 132 _sq._ Malcolm, _Memoir of Central India_, ii.
209 _sqq._ Forsyth, _Highlands of Central India_, p. 172 _sq._]
[Footnote 109: Sleeman, _op. cit._ ii. 344 _sq._]
[Footnote 110: Ward, _op. cit._ ii. 119.]
[Footnote 111: Chevers, _op. cit._ p. 659 _sqq._ Crooke, _Popular
Religion and Folk-Lore of Northern India_, i. 191 _sqq._ van
Mökern, _Ostindien_, i. 319 _sqq._]
[Footnote 112: Tod, quoted by Chevers, _op. cit._ p. 659 _sq._]
[Footnote 113: Crooke, _op. cit._ i. 193.]
[Footnote 114: _Ibid._ i. 191 _sq._]
[Footnote 115: Chevers, _op. cit._ p. 663.]
[Footnote 116: _Cf._ Steinmetz, 'Gli antichi scongiuri giuridici
contro i creditori,' in _Rivista italiana di sociologia_, ii. 58.
For the practice of _dharna_ see _ibid._ p. 37 _sqq._; Balfour,
_Cyclopædia of India_, i. 934 _sq._; van Mökern, _op. cit._
i. 322 _sq._]
[Footnote 117: _Cf._ Jones, quoted by Balfour, _op. cit._ i. 935.]
[Footnote 118: Ward, _op. cit._ ii. 115. Forsyth, _op. cit._
p. 173.]
[Footnote 119: _Vasishtha_, xxiii. 14 _sq._]
[Footnote 120: _Ibid._ xxiii. 18 _sqq._]
[Footnote 121: Hardy, _Manual of Budhism_, p. 479.]
[Footnote 122: Crooke, _Popular Religion and Folk-Lore of
Northern India_, i. 269. Fawcett, 'Nâyars of Malabar,' in the
Madras Government Museum's _Bulletin_, iii. 253.]
The Old Testament mentions a few cases of suicide.[123] In none
of them is any censure passed on the perpetrator of the deed, nor
is there any text which expressly forbids a man to die by his own
hand; and of Ahithophel it is said that he was buried in the
sepulchre of his father.[124] It seems, however, that according
to Jewish custom persons who had killed themselves should be left
unburied till sunset,[125] perhaps for fear lest the spirit of
the deceased otherwise might find its way back to the old
home.[126] Josephus, who mentions this custom, denounces suicide
as an act of cowardice, as a crime most remote from the common
nature of all animals, as impiety against the Creator; and he
maintains that the souls of those who have thus acted madly
against themselves will go to the darkest place in Hades.[127]
The Talmud considers suicide justifiable, if not meritorious, in
the case of the chief of a vanquished army who is sure of
disgrace and death at the hands of the exulting conqueror,[128]
or when a person has {247} reason to fear being forced to
renounce his religion.[129] In all other circumstances the Rabbis
consider it criminal for a person to shorten his own life, even
when he is undergoing tortures which must soon end his earthly
career;[130] and they forbid all marks of mourning for a
self-murderer, such as wearing sombre apparel and eulogising
him.[131] Islam prohibits suicide, as an act which interferes
with the decrees of God.[132] Muhammedans say that it is a
greater sin for a person to kill himself than to kill a
fellow-man;[133] and, as a matter of fact, suicide is very rare
in the Moslem world.[134]
[Footnote 123: _1 Samuel_, xxxi. 4 _sq._ _2 Samuel_, xvii. 23. _1
Kings_, xvi. 18. _2 Maccabees_, xiv. 4 _sqq._]
[Footnote 124: _2 Samuel_, xvii. 23.]
[Footnote 125: Josephus, _De bello Judaico_, iii. 8. 5.]
[Footnote 126: _Cf._ Frazer, 'Burial Customs as illustrative of
the Primitive Theory of the Soul,' in _Jour. Anthr. Inst._ xv. 72.]
[Footnote 127: Josephus, _op. cit._ iii. 8. 5.]
[Footnote 128: _Cf._ _1 Samuel_, xxxi. 4.]
[Footnote 129: _Guittin_, 57 B, quoted by Mendelsohn, _Criminal
Jurisprudence of the Ancient Hebrews_, p. 77, n. 163. _Cf._ _2
Maccabees_, xiv. 37 _sqq._]
[Footnote 130: _Ab Zara_, 18 A, quoted by Mendelsohn, _op. cit._
p. 78, n. 163.]
[Footnote 131: Mendelsohn, _op. cit._ p. 77.]
[Footnote 132: _Koran_, iv. 33.]
[Footnote 133: I have often heard this myself. _Cf._ Westcott,
_Suicide_, p. 12.]
[Footnote 134: Lisle, _Du suicide_, pp. 305, 345 _sq._ Legoyt,
_Le suicide ancien et moderne_, p. 7. Morselli, _Il suicidio_, p.
33. Westcott, _op. cit._ p. 12.]
Ancient Greece had its honourable suicides. The Milesian and
Corinthian women, who by a voluntary death escaped from falling
into the hands of the enemy, were praised in epigrams.[135] The
story that Themistocles preferred death to bearing arms against
his native country was circulated with a view to doing honour to
his memory.[136] The tragedians frequently give expression to the
idea that suicide is in certain circumstances becoming to a noble
mind.[137] Hecuba blames Helena for not putting an end to her
life by a rope or a sword.[138] Phaedra[139] and Leda[140] kill
themselves out of shame, Haemon from violent remorse.[141] Ajax
decides to die after having in vain attempted to kill the
Atreidae, maintaining that "one of generous strain should nobly
live, or forthwith nobly die."[142] Instances are, moreover,
mentioned of women killing themselves on the death of their
husbands;[143] and in Cheos it was the custom to prevent {248}
the decrepitude of old age by a voluntary death.[144] At Athens
the right hand of a person who had taken his own life was struck
off and buried apart from the rest of the body,[145] evidently in
order to make him harmless after death.[146] Plato says in his
'Laws,' probably in agreement with Attic custom, that those who
inflict death upon themselves "from sloth or want of manliness,"
shall be buried alone in such places as are uncultivated and
nameless, and that no column or inscription shall mark the spot
where they are interred.[147] At Thebes self-murderers were
deprived of the accustomed funeral ceremonies,[148] and in Cyprus
they were left unburied.[149] The objections which philosophers
raised against the commission of suicide were no doubt to some
extent shared by popular sentiments. Pythagoras is represented as
saying that we should not abandon our station in life without the
orders of our commander, that is, God.[150] According to the
Platonic Socrates, the gods are our guardians and we are a
possession of theirs, hence "there may be reason in saying that a
man should wait, and not take his own life until God summons
him."[151] Aristotle, again, maintains that he who from rage
kills himself commits a wrong against the State, and that
therefore the State punishes him and civil infamy is attached to
him.[152] The religious argument could not be foreign to a people
who regarded it as impious interference in the order of nature to
make a bridge over the Hellespont and to separate a landscape
from the continent;[153] and the idea that suicide is a matter of
public concern evidently prevailed in Massilia, where no man was
allowed to make away with himself unless the magistrates had
given him permission to do so.[154] But the {249} opinions of the
philosophers were anything but unanimous.[155] Plato himself, in
his 'Laws,' has no word of censure for him who deprives himself
by violence of his appointed share of life under the compulsion
of some painful and inevitable misfortune, or out of irremediable
and intolerable shame.[156] Hegesias, surnamed the
"death-persuader," who belonged to the Cyrenaic school, tried to
prove the utter worthlessness and unprofitableness of life.[157]
According to Epicurus we ought to consider "whether it be better
that death should come to us, or we go to him."[158] The Stoics,
especially, advocated suicide as a relief from all kinds of
misery.[159] Seneca remarks that it is a man's own fault if he
suffers, as, by putting an end to himself, he can put an end to
his misery:--"As I would choose a ship to sail in, or a house to
live in, so would I choose the most tolerable death when about to
die. . . . Human affairs are in such a happy situation, that no
one need be wretched but by choice. Do you like to be wretched?
Live. Do you like it not? It is in your power to return from
whence you came."[160] The Stoics did not deny that it is wrong
to commit suicide in cases where the act would be an injury to
society;[161] Seneca himself points out that Socrates lived
thirty days in prison in expectation of death, so as to submit to
the laws of his country, and to give his friends the enjoyment of
his conversation to the last.[162] Epictetus opposes
indiscriminate suicide on religious grounds:--"Friends, wait for
God; when he shall give the signal and release you from this
service, then go to him; but for the present endure to dwell in
the place where he has put you."[163] Such a signal, however, is
given often enough: it may consist in incurable disease,
intolerable pain, or misery of any kind. "Remember this: the door
is open; be not more timid {250} than little children, but as
they say, when the thing does not please them, 'I will play no
longer,' so do you, when things seem to you of such a kind, say I
will no longer play, and be gone: but if you stay, do not
complain."[164] Pliny says that the power of dying when you
please is the best thing that God has given to man amidst all the
sufferings of life.[165]
[Footnote 135: Schmidt, _Die Ethik der alten Griechen_, ii. 443.]
[Footnote 136: Diodorus Siculus, _Bibliotheca historica_, xi. 58.
2 _sq._]
[Footnote 137: See Schmidt, _op. cit._ ii. 442 _sqq._]
[Footnote 138: Euripides, _Troades_, 1012 _sqq._]
[Footnote 139: _Idem_, _Hippolytus_, 715 _sqq._]
[Footnote 140: _Idem_, _Helena_, 134 _sqq._]
[Footnote 141: Sophocles, _Antigone_, 1234 _sqq._]
[Footnote 142: _Idem_, _Ajax_, 470 _sqq._ _Cf._ _ibid._ 654 _sqq._]
[Footnote 143: Euripides, _Supplices_, 1000 _sqq._ Pausanias,
iv. 2. 7.]
[Footnote 144: Strabo, _Geographica_, x. 5. 6, p. 486. Aelian,
_Varia historia_, iii. 37. _Cf._ Boeckh, _Gesammelte kleine
Schriften_, vii. 345 _sqq._; Welcker, _Kleine Schriften_,
ii. 502 _sq._]
[Footnote 145: Aeschines, _In Ctesiphontem_, 244.]
[Footnote 146: Some Australian natives cut off the thumb of the
right hand of a dead foe in order to make his spirit unable to
throw the spear efficiently (Oldfield, in _Trans. Ethn. Soc._
N.S. iii. 287).]
[Footnote 147: Plato, _Leges_, ix. 873.]
[Footnote 148: Schmidt, _op. cit._ ii. 104.]
[Footnote 149: Dio Chrysostom, _Orationes_, lxiv. 3.]
[Footnote 150: Cicero, _Cato Major_, 20 (73).]
[Footnote 151: Plato, _**Phædo_, p. 62.]
[Footnote 152: Aristotle, _Ethica Nicomachea_, v. 11. 3.]
[Footnote 153: See Schmidt, _op. cit._ ii. 83, 441; Rohde,
_Psyche_, p. 202, n. 1.]
[Footnote 154: Valerius Maximus, _Factorum dictorumque
memorabilia_, ii. 6. 7.]
[Footnote 155: See Geiger, _Der Selbstmord im klassischen
Altertum_, p. 5 _sqq._]
[Footnote 156: Plato, _Leges_, ix. 873.]
[Footnote 157: Cicero, _Tusculanæ quæstiones_, i. 34 (83 _sq._).
Valerius Maximus, viii. 9. Externa 3.]
[Footnote 158: Epicurus, quoted by Seneca, _Epistulæ_, 26.]
[Footnote 159: See Geiger, _op. cit._ p. 15 _sqq._]
[Footnote 160: Seneca, _Epistulæ_, 70. See also _Idem_, _De ira_,
iii. 15; _Idem_, _Consolatia ad Marciam_, 20.]
[Footnote 161: Lecky, _History of European Morals_, i. 214, n. 1.]
[Footnote 162: Seneca, _Epistulæ_, 70.]
[Footnote 163: Epictetus, _Dissertationes_, i. 9. 16.]
[Footnote 164: _Ibid._ i. 24. 20; i. 25. 20 _sq._; ii. 16. 37
_sqq._; iii. 13. 14; iii. 24. 95 _sqq._]
[Footnote 165: Pliny, _Historia naturalis_, ii. 5 (7).]
It seems that the Roman people, before the influence of
Christianity made itself felt, regarded suicide with considerable
moral indifference. According to Servius, it was provided by the
Pontifical laws that whoever hanged himself should be cast out
unburied;[166] but from what has been said before it is probable
that this practice only owed its origin to fear of the dead man's
ghost. Vergil enumerates self-murderers not among the guilty, but
among the unfortunate, confounding them with infants who have
died prematurely and persons who have been condemned to die on a
false charge.[167] Throughout the whole history of pagan Rome
there was no statute declaring it to be a crime for an ordinary
citizen to take his own life. The self-murderer's rights were in
no way affected by his deed, his memory was no less honoured than
if he had died a natural death, his will was recognised by law,
and the regular order of succession was not interfered with.[168]
In Roman law there are only two noteworthy exceptions to the rule
that suicide is a matter with which the State has nothing to do:
it was prohibited in the case of soldiers,[169] and the enactment
was made that the suicide of an accused person should entail the
same consequences as his condemnation; but in the latter instance
the deed was admitted as a confession of guilt.[170] On the other
{251} hand, it seems to have been the general opinion in Rome
that suicide under certain circumstances is an heroic and
praiseworthy act.[171] Even Cicero, who professed the doctrine of
Pythagoras,[172] approved of the death of Cato.[173]
[Footnote 166: Servius, _Commentarii in Virgilii Æneidos_,
xii. 603.]
[Footnote 167: Vergil, _Æneis_, vi. 426 _sqq._]
[Footnote 168: Bourquelot, 'Recherches sur les opinions et la
législation en matière de mort volontaire pendant le moyen age,'
in _Bibliothèque de l'École des Chartes_, iii. 544. Geiger, _op.
cit._ p. 64 _sqq._ Bynkershoek, _Observationes Juris Romani_, iv.
4, p. 350.]
[Footnote 169: _Digesta_, xlix. 16. 6. 7.]
[Footnote 170: _Ibid._ xlviii. 21. 3 pr. _Cf._ Bourquelot, _op.
cit._ iii. 543 sq.; Gibbon, _Decline and Fall of the Roman
Empire_, v. 326; Lecky, _History of European Morals_, i. 219.]
[Footnote 171: Stäudlin, _Geschichte der Vorstellungen und Lehren
vom Selbstmorde_, p. 62 _sq._]
[Footnote 172: Cicero, _Cato Major_, 20 (72 _sq._).]
[Footnote 173: _Idem_, _De officiis_, i. 31 (112).]
In no question of morality was there a greater difference between
classical and Christian doctrines than in regard to suicide. The
earlier Fathers of the Church still allowed, or even approved of,
suicide in certain cases, namely, when committed in order to
procure martyrdom,[174] or to avoid apostacy, or to retain the
crown of virginity. To bring death upon ourselves voluntarily,
says Lactantius, is a wicked and impious deed; "but when urged to
the alternative, either of forsaking God and relinquishing faith,
or of expecting all torture and death, then it is that undaunted
in spirit we defy that death with all its previous threats and
terrors which others fear."[175] Eusebius and other
ecclesiastical writers mention several instances of Christian
women putting an end to their lives when their chastity was in
danger, and their acts are spoken of with tenderness, if not
approbation; indeed, some of them were admitted into the calendar
of saints.[176] This admission was due to the extreme honour in
which virginity was held by the Fathers; St. Jerome, who denied
that it was lawful in times of persecution to die by one's own
hands, made an exception for cases in which a person's chastity
was at stake.[177] But even this exception was abolished by St.
Augustine. He allows that the virgins who laid violent hands upon
themselves are worthy of compassion, but declares that there was
no necessity for their doing so, since chastity is a virtue of
{252} the mind which is not lost by the body being in captivity
to the will and superior force of another. He argues that there
is no passage in the canonical Scriptures which permits us to
destroy ourselves either with a view to obtaining immortality or
to avoiding calamity. On the contrary, suicide is prohibited in
the commandment, "Thou shalt not kill," namely, "neither thyself
nor another"; for he who kills himself kills no other but a
man.[178] This doctrine, which assimilates suicide with murder,
was adopted by the Church.[179] Nay, self-murder was declared to
be the worst form of murder, "the most grievous thing of
all";[180] already St. Chrysostom had declared that "if it is
base to destroy others, much more is it to destroy one's
self."[181] The self-murderer was deprived of rights which were
granted to all other criminals. In the sixth century a Council at
Orleans enjoined that "the oblations of those who were killed in
the commission of any crime may be received, except of such as
laid violent hands on themselves";[182] and a subsequent Council
denied self-murderers the usual rites of Christian burial.[183]
It was even said that Judas committed a greater sin in killing
himself than in betraying his master Christ to a certain death.[184]
[Footnote 174: See Barbeyrac, _Traité de la morale des Pères de
l'Église_, pp. 18, 122 _sq._; Buonafede, _Istoria critica e
filosofica del suicidio_, p. 135 _sqq._; Lecky, _op. cit._
ii. 45 _sq._]
[Footnote 175: Lactantius, _Divines Institutiones_, vi. ('De vero
cultu') 17 (Migne, _Patrologiæ cursus_, vi. 697).]
[Footnote 176: Eusebius, _Historia ecclesiastica_, viii. 12
(Migne, _op. cit._ Ser. Graeca, xx. 769 _sqq._), 14 (_ibid._ col.
785 _sqq._). St. Ambrose, _De virginibus_, xiii. 7 (Migne, _op.
cit._ xvi. 229 _sqq._). St. Chrysostom, _Homilia encomiastica in
S. Martyrem Pelagiam_ (Migne, _op. cit._ Ser. Graeca, l. 579 sqq.).]
[Footnote 177: St. Jerome, _Commentarii in Jonam_, i. 12 (Migne,
_op. cit._ xxv. 1129).]
[Footnote 178: St. Augustine, _De Civitate Dei_, i. 16 _sqq._]
[Footnote 179: Gratian, _Decretum_, ii. 23. 5. 9. 3.]
[Footnote 180: Thomas Aquinas, _Summa theologica_, ii.-ii. 64. 5. 3.]
[Footnote 181: St. Chrysostom, _In Epistolam ad Galatas
commentarius_, i. 4 (Migne, _op. cit._ Ser. Graeca, lxi. 618 _sq._).]
[Footnote 182: _Concilium Aurelianense II._ A.D. 533, can. 15
(Labbe-Mansi, _Sacrorum Conciliorum collectio_, viii. 837). See
also _Concilium Autisiodorense_, A.D. 578, can. 17 (Labbe-Mansi,
ix. 913).]
[Footnote 183: _Concilium Bracarense II._ A.D. 563, cap. 16
(Labbe-Mansi, _op. cit._ ix. 779).]
[Footnote 184: Damhouder, _Praxis rerum criminalium_, lviii. 2
_sq._, p. 258. See Gratian, _op. cit._ ii. 33. 3. 3. 38. At the
trial of the Marquise de Brinvilliers in 1676, the presiding
judge said to the prisoner that "the greatest of all her crimes,
horrible as they were, was, not the poisoning of her father and
brothers, but her attempt to poison herself" (Ives,
_Classification of Crimes_, p. 36).]
According to the Christian doctrine, as formulated by Thomas
Aquinas, suicide is utterly unlawful for three reasons. First,
everything naturally loves itself and preserves itself in being;
suicide is against a natural inclination and contrary to the
charity which a man ought to bear towards himself, and
consequently a mortal sin. {253} Secondly, by killing himself a
person does an injury to the community of which he is a part.
Thirdly, "life is a gift divinely bestowed on man, and subject to
His power who 'killeth and maketh alive'; and therefore he who
takes his own life sins against God, as he who kills another
man's slave sins against the master to whom the slave belongs,
and as he sins who usurps the office of judge on a point not
referred to him; for to God alone belongs judgment of life and
death."[185] The second of these arguments is borrowed from
Aristotle, and is entirely foreign to the spirit of early
Christianity. The notion of patriotism being a moral duty was
habitually discouraged by it, and, as Mr. Lecky observes, "it was
impossible to urge the civic argument against suicide without at
the same time condemning the hermit life, which in the third
century became the ideal of the Church."[186] But the other
arguments are deeply rooted in some of the fundamental doctrines
of Christianity--in the sacredness of human life, in the duty of
absolute submission to God's will, and in the extreme importance
attached to the moment of death. The earthly life is a
preparation for eternity; sufferings which are sent by God are
not to be evaded, but to be endured.[187] The man who
deliberately takes away the life which was given him by the
Creator displays the utmost disregard for the will and authority
of his Master; and, worst of all, he does so in the very last
minute of his life, when his doom is sealed for ever. His deed,
as Thomas Aquinas says, is "the most dangerous thing of all,
because no time is left to expiate it by repentance."[188] He who
kills a fellow-creature does not in the same degree renounce the
protection of God; he kills only the body, whereas the
self-murderer kills both the body and the soul.[189] By denying
the latter the right of Christian {254} burial the Church
recognises that he has placed himself outside her pale.
[Footnote 185: Thomas Aquinas, _op. cit._ ii.-ii. 64. 5.]
[Footnote 186: Lecky, _History of European Morals_, ii. 44.]
[Footnote 187: _Cf._ St. Augustine, _De Civitate Dei_, i. 23.]
[Footnote 188: Thomas Aquinas, _op. cit._ ii.-ii. 64. 5. 3. _Cf._
St. Augustine, _De Civitate Dei_, i. 25.]
[Footnote 189: Damhouder, _op. cit._ lxxxviii. 1 _sq._, p. 258.]
The condemnation of the Church influenced the secular
legislation. The provisions of the Councils were introduced into
the law-books. In France Louis IX. enforced the penalty of
confiscating the self-murderer's property,[190] and laws to the
same effect were passed in other European countries.[191] Louis
XIV. assimilated the crime of suicide to that of _lèze
majesté_.[192] According to the law of Scotland, "self-murder is
as highly criminal as the killing our neighbour."[193] In England
suicide is still regarded by the law as murder committed by a man
on himself;[194] and, unless declared insane, the self-murderer
forfeited his property as late as the year 1870, when forfeitures
for felony were abolished.[195] In Russia, to this day, the
testamentary dispositions of a suicide are deemed void by the
law.[196]
[Footnote 190: _Les Établissements de Saint Louis_, i. 92, vol.
ii. 150.]
[Footnote 191: Bourquelot, _op. cit._ iv. 263. Morselli, _op.
cit._ p. 196 _sq._]
[Footnote 192: Louis XIV., 'Ordonnance criminelle,' A.D. 1670,
xxii. 1, in Isambert, Decrusy, and Taillandier, _Recueil général
des anciennes lois françaises_, xviii. 414.]
[Footnote 193: Erskine-Rankine, _Principles of the Law of
Scotland_, p. 559.]
[Footnote 194: Stephen, _History of the Criminal Law of England_,
iii. 104. For earlier times see Bracton, _De Legibus et
Consuetudinibus Angliæ_, fol. 150, vol. ii. 504 _sq._]
[Footnote 195: Stephen, _op. cit._ iii. 105.]
[Footnote 196: Foinitzki, in von Liszt, _La législation pénale
comparée_, p. 548.]
The horror of suicide also found a vent in outrages committed on
the dead body. Of a woman who drowned herself in Edinburgh in
1598, we are told that her body was "harled through the town
backwards, and thereafter hanged on the gallows."[197] In France,
as late as the middle of the eighteenth century, self-murderers
were dragged upon a hurdle through the streets with the face
turned to the ground; they were then hanged up with the head
downwards, and finally thrown into the common sewer.[198]
However, in most cases the treatment to which suicides bodies
were subject was not originally meant as a punishment, but was
intended to prevent their spirits {255} from causing mischief.
All over Europe wandering tendencies have been ascribed to their
ghosts.[199] In some countries the corpse of a suicide is
supposed to make barren the earth with which it comes in
contact,[200] or to produce hailstorms or tempests[201] or
drought.[202] At Lochbroom, in the North-West of Scotland, the
people believe that if the remains of a self-murderer be taken to
any burying-ground which is within sight of the sea or of
cultivated land, this would prove disastrous both to fishing and
agriculture, or, in the words of the people, would cause "famine
(or dearth) on sea and land"; hence the custom has been to inter
suicides in out-of-the-way places among the lonely solitudes of
the mountains.[203] The practice of burying them apart from other
dead has been very wide-spread in Europe, and in many cases there
are obvious indications that it arose from fear.[204] In the
North-East of Scotland a suicide was buried outside a churchyard,
close beneath the wall, and the grave was marked by a single
large stone, or by a small cairn, to which the passing traveller
was bound to cast a stone; and afterwards, when the suicide's
body was allowed to rest in the churchyard, it was laid below the
wall in such a position that no one could walk over the grave, as
the people believed that if a woman enceinte stepped over such a
{256} grave, her child would quit this earth by its own act.[205]
In England persons against whom a coroner's jury had found a
verdict of _felo de se_ were buried at cross-roads, with a stake
driven through the body so as to prevent their ghosts from
walking.[206] For the same purpose the bodies of {257} suicides
were in many cases burned.[207] And when removed from the house
where the act had been committed, they were commonly carried out,
not by the door, but by a window,[208] or through a perforation
specially made for the occasion in the door,[209] or through a
hole under the threshold,[210] in order that the ghost should not
find its way back into the house, or perhaps with a view to
keeping the entrance of the house free from dangerous infection.[211]
[Footnote 197: Ross, 'Superstitions as to burying Suicides in the
Highlands,' in _Celtic Magazine_, xii. 354.]
[Footnote 198: Serpillon, _Code Criminel_, ii. 223. _Cf._ Louis
XIV., 'Ordonnance criminelle,' A.D. 1670, xxii. 1, in Isambert,
Decrusy, and Taillandier, _op. cit._ xviii. 414.]
[Footnote 199: Ross, in _Celtic Magazine_, xii. 352 (Highlanders
of Scotland). Atkinson, _Forty Years in a Moorland Parish_,
p. 217. Hyltén-Cavallius, _Wärend och Wirdarne_, i. 472 _sq._
(Swedes). Allardt, 'Nyländska folkseder och bruk,' in _Nyland_,
iv. 114 (Swedish Finlanders). Wuttke, _Der deutsche
Volksaberglaube der Gegenwart_, §756, p. 474 _sq._ Schiffer,
'Totenfetische bei den Polen,' in _Am Ur-Quell_, iii. 50
(Polanders), 52 (Lithuanians). Volkov, 'Der Selbstmörder in
Lithauen,' _ibid._ v. 87. von Wlislocki, 'Tod und Totenfetische
im Volkglauben der Siebenbürger Sachsen,' _ibid._ iv. 53.
Lippert, _Christenthum, Volksglaube und Volksbrauch_, p. 391.
Dyer, _The Ghost World_, pp. 53, 151. Gaidoz, 'Le suicide,' in
_Mélusine_, iv. 12.]
[Footnote 200: Schiffer, in _Am Ur-Quell_, iii. 52 (Lithuanians).]
[Footnote 201: _Ibid._ pp. 50 (Polanders), 53 (Lithuanians). von
Wlislocki, _Volksglaube und religiöser Brauch der Magyaren_, p.
61. Strausz, _Die Bulgaren_, p. 455. Prexl, 'Geburts- und
Todtengebräuche der Rumänen in Siebenbürgen,' in _Globus_, lvii. 30.]
[Footnote 202: Strausz, _op. cit._ p. 455 (Bulgarians).]
[Footnote 203: Ross, in _Celtic Magazine_, xii. 350 _sq._]
[Footnote 204: Gaidoz, in _Mélusine_, iv. 12. Frank, _System
einer vollständigen medicinischen Polizey_, iv. 499. Moore, _op.
cit._ i. 310 (Danes). Schiffer, in _Am Ur-Quell_, iii. 50
(Polanders), 53 (Lithuanians). Volkov, _ibid._ v. 87
(Lithuanians). Strausz, _op. cit._ p. 455 (Bulgarians).]
[Footnote 205: Gregor, _Folk-Lore of the North-East of Scotland_,
p. 213 _sq._]
[Footnote 206: Stephen, _History of the Criminal Law of England_,
iii. 105. Atkinson, _op. cit._ p. 217. This custom was formally
abolished in 1823 by 4 Geo. IV. c. 52 (Stephen, _op. cit._ iii.
105). Why were suicides buried at cross-roads? Possibly because
the cross was supposed to disperse the evil energy ascribed to
their bodies. Both in Europe and India the cross-road has, since
ancient times, been a favourite place to divest oneself of
diseases or other influences (Wuttke, _Der deutsche
Volksaberglaube der Gegenwart_, §§ 483, 484, 492, 508, 514, 522,
545, pp. 325, 326, 331, 341, 345, 349, 361. _Hymns of the
Atharva-Veda_, pp. 272, 473, 519. Oldenberg, _Die Religion des
Veda_, pp. 267, 268 n. 1). In the sacred books of India it is
said that "a student who has broken the vow of chastity shall
offer an ass to Nirriti on a cross-road" (_Gautama_, xxiii. 17),
and that a person who has previously undergone certain other
purification ceremonies "is freed from all crimes, even mortal
sins, after looking on a cross-road at a pot filled with water,
and reciting the text, 'Simhe me manyuh'" (_Baudhâyana_, iv. 7.
7). In the hills of Northern India and as far as Madras, an
approved charm for getting rid of a disease of demoniacal origin
is to plant a stake where four roads meet, and to bury grains
underneath, which crows disinter and eat (_North Indian Notes and
Queries_, i. § 652, p. 100; Madden, 'The Turaee and Outer
Mountains of Kumaoon,' in _Jour. Asiatic Soc. Bengal_, xvii. pt.
i. 583; Crooke, _Popular Religion and Folk-Lore of Northern
India_, i. 290). In the Province of Bih[=a]r, "in cases of
sickness various articles are exposed in a saucer at a
cross-road" (Grierson, _Bih[=a]r Peasant Life_, p. 407).
According to a Bulgarian tale, Lot was enjoined by the priest to
plant on a cross-road three charred twigs in order to free
himself from his sin (Strausz, _op. cit._ p. 115). The Gypsies of
Servia believe that a thief may divert from himself all
suspicions by painting with blood a cross and a dot above it on
the spot where he committed the theft (von Wlislocki,
'Menschenblut im Glauben der Zigeuner,' in _Am Ur-Quell_, iii. 64
_sq._). In Morocco the cross is used as a charm against the evil
eye, and the chief reason for this is, I believe, that it is
regarded as a conductor of the baneful energy emanating from the
eye, dispersing it in all the quarters of the wind and thus
preventing it from injuring the person or object looked at
(Westermarck, 'Magic Origin of Moorish Designs,' in _Jour. Anthr.
Inst._ xxxiv. 214). In Japan, if a criminal belonging to one of
the lower classes commits suicide, his body is crucified
(_Globus_, xviii. 197). When, under Tarquinius Priscus (or
Tarquinius Superbus), many Romans preferred voluntary death to
compulsory labour in the _cloaca_, or artificial canals by which
the sewage was carried into the Tiber, the king ordered that
their bodies should be crucified and abandoned to birds and
beasts of prey (Pliny, _Historia naturalis_, xxxvi. 24; Servius,
_Commentarii in Virgilii Æneidos_, xii. 603). The reason for thus
crucifying the bodies of self-murderers is not stated; but it is
interesting to notice, in this connection, the idea expressed by
some Christian writers that the cross of the Saviour symbolised
the distribution of his benign influence in all directions
(d'Ancona, _Origini del teatro italiano_, i. 646; Tauler, quoted
by Peltzer, _Deutsche Mystik und deutsche Kunst_, p. 191. I am
indebted to my friend Dr. Yrjö Hirn for drawing my attention to
this idea). With reference to persons who had killed a father,
mother, brother, or child, Plato says in his 'Laws' (ix.
873):--"If he be convicted, the servants of the judges and the
magistrates shall slay him at an appointed place without the city
where three ways meet, and there expose his body naked, and each
of the magistrates on behalf of the whole city shall take a stone
and cast it upon the head of the dead man, and so deliver the
city from pollution; after that, they shall bear him to the
borders of the land, and cast him forth unburied, according to
law." The duels by which the ancient Swedes were legally
compelled to repair their wounded honour were to be fought on a
place where three roads met (Leffler, _Om den fornsvenska
hednalagen_, p. 40 _sq._; _supra_, i. 502). In various countries
it has been the custom to bury the dead at cross-roads (Grimm,
'Ueber das Verbrennen der Leichen,' in _Kleinere Schriften_, ii.
288 (Bohemians). Lippert, _Die Religionen der europäischen
Culturvölker_, p. 310 (Slavonians); Winternitz, _Das altindische
Hochzeitsrituell_, p. 68; Oldenberg, _Die Religion des Veda_,
pp. 267, 268, 562 n. 3)--a custom which may have given rise to the
idea that cross-roads are haunted (Winternitz, _op. cit._ p. 68;
Oldenberg, _op. cit._ p. 267 _sq._; _cf._ Wuttke, _op. cit._
§ 108, p. 89 _sq._).]
[Footnote 207: Bourquelot, _loc. cit._ iv. 263. Hyltén-Cavallius,
_op. cit._ i. 459; Nordström, _Bidrag till den svenska
samhälls-författningens historia_, ii. 331 (Swedes), von
Wlislocki, 'Tod und Totenfetische im Volkglauben der Siebenbürger
Sachsen,' in _Am Ur-Quell_, iv. 53.]
[Footnote 208: Wuttke, _op. cit._ § 756, p. 474; Frank, _op.
cit._ iv. 498 _sq._; Lippert, _Der Seelencult_, p. 11 (people in
various parts of Germany). Schiffer, in _Am Ur-Quell_, iii. 50
(Polanders).]
[Footnote 209: Bourquelot, _loc. cit._ iv. 264 (at Abbeville).]
[Footnote 210: Grimm, _Deutsche Rechtsalterthümer_, p. 726 _sqq._
Hyltén-Cavallius, _op. cit._ i. 472 _sq._ (Swedes).]
[Footnote 211: See _infra_, on Regard for the Dead. Contact with
a self-murderer's body is considered polluting (Prexl, 'Geburts- und
Todtengebräuche der Rumänen in Siebenbürgen,' in _Globus_,
lvii. 30; Hyltén-Cavallius, _Wärend och Wirdarne_, i. 459, 460,
and ii. 412). We are told that in the eighteenth century people
did not dare to cut down a person who had hanged himself, though
he was found still alive (Frank, _op. cit._ iv. 499). Among the
Bannavs of Cambodia **everybody who takes part in the burial of a
self-murderer is obliged to undergo a certain ceremony of
purification, whereas no such ceremony is prescribed in the case
of other burials (_Mittheil. d. Geogr. Ges. zu Jena_, iii. 9).]
However, side by side with the extreme seventy with which suicide
is viewed by the Christian Church, we find, even in the Middle
Ages, instances of more humane feelings towards its perpetrator.
In mediæval tales and ballads true lovers die together and are
buried in the same grave; two roses spring through the turf and
twine lovingly together.[212] In the later Middle Ages, says M.
{258} Bourquelot, "on voit qu'à mesure qu'on avance,
l'antagonisme devient plus prononcé entre l'esprit religieux et
les idées mondaines relativement à la mort volontaire. Le clergé
continue à suivre la route qui a été tracée par Saint Augustin et
à déclarer le suicide criminel et impie; mais la tristesse et le
désespoir n'entendent pas sa voix, ne se souviennent pas de ses
prescriptions."[213] The revival of classical learning,
accompanied as it was by admiration for antiquity and a desire to
imitate its great men, not only increased the number of suicides,
but influenced popular sentiments on the subject.[214] Even the
Catholic casuists, and later on philosophers of the school of
Grotius and others, began to distinguish certain cases of
legitimate suicide, such as that committed to avoid dishonour or
probable sin, or that of a condemned person saving himself from
torture by anticipating an inevitable death, or that of a man
offering himself to death for the sake of his friend.[215] Sir
Thomas More, in his Utopia, permits a person who is suffering
from an incurable and painful disease to take his own life,
provided that he does so with the agreement of the priests and
magistrates; nay, he even maintains that these should exhort such
a man to put an end to a life which is only a burden to himself
and others.[216] Donne, the well-known Dean of St. Paul's, wrote
in his younger days a book in defence of suicide, "a
Declaration," as he called it, "of that paradoxe, or thesis, that
Self-homicide is not so naturally sin, that it may never be
otherwise." He there pointed out the fact--which ought never to
be overlooked by those who derive their arguments from
"nature"--that some things may be natural to the species, and yet
not natural to every individual member of it.[217] In one of his
essays Montaigne pictures classical cases of suicide with colours
of unmistakable sympathy. "La plus volontaire mort," he {259}
observes, "c'est la plus belle. La vie despend de la volonté
d'aultruy; la mort, de la nostre."[218] The rationalism of the
eighteenth century led to numerous attacks both upon the views of
the Church and upon the laws of the State concerning suicide.
Montesquieu advocated its legitimacy:--"La société est fondée sur
un avantage mutuel; mais lorsqu'elle me devient onéreuse, qui
m'empêche d'y renoncer? La vie m'a été donnée comme une faveur;
je puis donc la rendre lorsqu'elle ne l'est plus: la cause cesse,
l'effet doit donc cesser aussi."[219] Voltaire strongly opposed
the cruel laws which subjected a suicide's body to outrage and
deprived his children of their heritage.[220] If his act is a
wrong against society, what is to be said of the voluntary
homicides committed in war, which are permitted by the laws of
all countries? Are they not much more harmful to the human race
than self-murder, which nature prevents from ever being practised
by any large number of men?[221] Beccaria pointed out that the
State is more wronged by the emigrant than by the suicide, since
the former takes his property with him, whereas the latter leaves
his behind.[222] According to Holbach, he who kills himself is
guilty of no outrage on nature or its author; on the contrary, he
follows an indication given by nature when he parts from his
sufferings through the only door which has been left open. Nor
has his country or his family any right to complain of a member
whom it has no means of rendering happy, and from whom it
consequently has nothing more to hope.[223] Others eulogised
suicide when committed for a noble end,[224] or recommended it on
certain occasions. "Suppose," says Hume, "that it is no longer in
my {260} power to promote the interest of society; suppose that I
am a burthen to it; suppose that my life hinders some person from
being much more useful to society. In such cases my resignation
of life must not only be innocent but laudable."[225] Hume also
attacks the doctrine that suicide is a transgression of our duty
to God. "If it would be no crime in me to divert the Nile from
its course, were I able to do so, how could it be a crime to turn
a few ounces of blood from their natural channel? Were the
disposal of human life so much reserved as the peculiar province
of the Almighty that it were an encroachment on his right for men
to dispose of their own lives, would it not be equally wrong of
them to lengthen out their lives beyond the period which by the
general laws of nature he had assigned to it? My death, however
voluntary, does not happen without the consent of Providence;
when I fall upon my own sword, I receive my death equally from
the hands of the Deity as if it had proceeded from a lion, a
precipice, or a fever."[226]
[Footnote 212: See Bourquelot, _loc. cit._ iv. 248; Gummere,
_Germanic Origins_, p. 322.]
[Footnote 213: Bourquelot, _loc. cit._ iv. 253.]
[Footnote 214: _Ibid._ iv. 464. Morselli, _op. cit._ p. 35.]
[Footnote 215: Buonafede, _op. cit._ p. 148 _sqq._ Lecky, _op.
cit._ ii. 55.]
[Footnote 216: More, _Utopia_, p. 122.]
[Footnote 217: Donne, _Biathanatos_, p. 45. Donne's book was
first committed to the press in 1644, by his son.]
[Footnote 218: Montaigne, _Essais_, ii. 3 (_[OE]uvres_, p. 187).]
[Footnote 219: Montesquieu, _Lettres Persanes_, 76 (_[OE]uvres_,
p. 53).]
[Footnote 220: Voltaire, _Commentaire sur le livre Des délits et
des peines_, 19 (_[OE]uvres complètes_, v. 416). _Idem_, _Prix de
la justice et de l'humanité_, 5 (_ibid._ v. 424).]
[Footnote 221: _Idem_, _Note to Olympie acte v. scène_ 7
(_[OE]uvres complètes_, i. 826, n. _b_). _Idem_, _Dictionnaire
Philosophique_, art. Suicide (_ibid._ viii. 236).]
[Footnote 222: Beccaria, _Dei delitti e delle pene_, § 35
(_Opere_, i. 101).]
[Footnote 223: Holbach, _Système de la nature_, i. 369.]
[Footnote 224: In the early part of the nineteenth century this
was done by Fries, _Neue oder anthropologische Kritik der
Vernunft_, iii. 197.]
[Footnote 225: Hume, 'Suicide,'in _Philosophical Works_, iv. 413.]
[Footnote 226: _Ibid._ p. 407 _sqq._]
Thus the main arguments against suicide which had been set forth
by pagan philosophers and Christian theologians were scrutinised
and found unsatisfactory or at least insufficient to justify that
severe and wholesale censure which was passed on it by the Church
and the State. But a doctrine which has for ages been inculcated
by the leading authorities on morals is not easily overthrown;
and when the old arguments are found fault with new ones are
invented. Kant maintained that a person who disposes of his own
life degrades the humanity subsisting in his person and entrusted
to him to the end that he might uphold it.[227] Fichte argued
that it is our duty to preserve our life and to will to live, not
for the sake of life, but because our life is the exclusive
condition of the realisation of the moral law through us.[228]
According to Hegel it is a contradiction to speak of a person's
right over his life, since this would {261} imply a right of a
person over himself, and no one can stand above and execute
himself.[229] Paley, again, feared that if religion and morality
allowed us to kill ourselves in any case, mankind would have to
live in continual alarm for the fate of their friends and dearest
relations[230]--just as if there were a very strong temptation
for men to shorten their lives. But common sense is neither a
metaphysician nor a sophist. When not restrained by the yoke of a
narrow theology, it is inclined in most cases to regard the
self-murderer as a proper object of compassion rather than of
condemnation, and in some instances to admire him as a hero. The
legislation on the subject therefore changed as soon as the
religious influence was weakened. The laws against suicide were
abolished in France by the Revolution,[231] and afterwards in
various other continental countries;[232] whilst in England it
became the custom of jurymen to presume absence of a sound mind
in the self-murderer--perjury, as Bentham said, being the penance
which prevented an outrage on humanity.[233] These measures
undoubtedly indicate not only a greater regard for the innocent
relatives of the self-murderer, but also a change in the moral
ideas concerning the act itself**.
[Footnote 227: Kant, _Metaphysische Anfangungsgründe der
Tugendlehre_, p. 73.]
[Footnote 228: Fichte, _Das System der Sittenlehre_, p. 339
_sqq._ See also _ibid._ pp. 360, 391.]
[Footnote 229: Hegel, _Grundlinien der Philosophie des Rechts_,
§ 70, Zusatz, p. 72.]
[Footnote 230: Paley, _Principles of Moral and Political
Philosophy_, iv. 3 (_Complete Works_, ii. 230).]
[Footnote 231: Legoyt, _op. cit._ p. 109.]
[Footnote 232: Bourquelot, _loc. cit._ iv. 475.]
[Footnote 233: Bentham, _Principles of Penal Law_, ii. 4. 4
(_Works_, i. 479 _sq._).]
As appears from this survey of facts, the moral valuation of
suicide varies to an extreme degree. It depends partly on the
circumstances in which the act is committed, partly on the point
of view from which it is regarded and the notions held about the
future life. When a person sacrifices his life for the benefit of
a fellow-man or for the sake of his country or to gratify the
supposed desire of a god, his deed may be an object of the
highest praise. It may, further, call forth approval or
admiration as indicating a keen sense of honour or as a test of
courage; in Japan, says Professor Chamberlain, "the courage to
take {262} life--be it one's own or that of others--ranks
extraordinarily high in public esteem."[234] In other cases
suicide is regarded with indifference as an act which concerns
the agent alone. But for various reasons it is also apt to give
rise to moral disapproval. The injury which the person committing
it inflicts upon himself may excite sympathetic resentment
towards him; he may be looked upon as injurer and injured at the
same time. Plato asks in his 'Laws':--"What ought he to suffer
who murders his nearest and so-called dearest friend? I mean, he
who kills himself."[235] And the same point of view is
conspicuous in St. Augustine's argument, that the more innocent
the self-murderer was before he committed his deed the greater is
his guilt in taking his life[236]--an argument of particular
force in connection with a theology which condemns suicides to
everlasting torments and which regards it as a man's first duty
to save his soul. The condemnation of killing others may by an
association of ideas lead to a condemnation of killing one's
self,[237] as is suggested by the Christian doctrine that suicide
is prohibited in the commandment, "Thou shalt not kill." The
horror which the act inspires, the fear of the malignant ghost,
and the defiling effect attributed to the shedding of blood, also
tend to make suicide an object of moral reprobation or to
increase the disapproval of it;[238] and the same is the case
with the exceptional treatment to which the self-murderer's body
is subject and his supposed annihilation or miserable existence
after death, which easily come to be looked upon in the light of
a punishment.[239] Suicide is, moreover, blamed as an act of
moral cowardice,[240] and, especially, as an injury inflicted
upon other persons, to whom the agent {263} owed duties from
which he withdrew by shortening his life.[241] Even among savages
we meet with the notion that a person is not entitled to treat
himself just as he pleases. Among the Goajiro Indians of
Colombia, if anybody accidentally cuts himself, say with his own
knife, or breaks a limb, or otherwise does himself an injury, his
family on the mother's side immediately demands blood-money,
since, being of their blood, he is not allowed to spill it
without paying for it; the father's relatives demand tear-money,
and friends present claim compensation to repay their sorrow at
seeing a friend in pain.[242] That a similar view is sometimes
taken by savages with regard to suicide appears from a few
statements quoted above.[243] The opinion that suicide is an
offence against society at large is particularly likely to
prevail in communities where the interests of the individual are
considered entirely subordinate to the interests of the State.
The religious argument, again, that suicide is a sin against the
Creator, an illegitimate interference with his work and decrees,
comes to prominence in proportion as the moral consciousness is
influenced by theological considerations. In Europe this
influence is certainly becoming less and less. And considering
that the religious view of suicide has been the chief cause of
the extreme severity with which it has been treated in Christian
countries, I am unable to subscribe to the opinion expressed by
Professor Durkheim, that the more lenient judgment passed on it
by the public conscience of the present time is merely accidental
and transient. The argument adduced in support of this opinion
leaves out of account the real causes to which the valuation of
suicide is due: it is said that the moral evolution is not likely
to be retrogressive in this particular point after it has
followed {264} a certain course for centuries.[244] It is true
that moral progress has a tendency to increase our sense of duty
towards our fellow-men. But at the same time it also makes us
more considerate as regards the motives of conduct; and--not to
speak of suicides committed for the benefit of others--the
despair of the self-murderer will largely serve as a palliation
of the wrong which he may possibly inflict upon his neighbour.
[Footnote 234: Chamberlain, _Things Japanese_, p. 221.]
[Footnote 235: Plato, _Leges_, ix. 873.]
[Footnote 236: St. Augustine, _De Civitate Dei_, i. 17.]
[Footnote 237: See Simmel, _Einleitung in die Moralwissenschaft_,
i. 187.]
[Footnote 238: _Cf._ _supra_, i. 377.]
[Footnote 239: See _supra_, ii. 237 _sqq._; Josephus, _De bello
Judaico_, iii. 8. 5; Plato, _Leges_, ix. 873; Aristotle, _Ethica
Nicomachea_, v. 11. 2 _sq._]
[Footnote 240: Hegel, _Grundlinien der Philosophie des Rechts_, §
70, Zusatz, p. 72; Fowler, _Progressive Morality_, p. 151; &c.]
[Footnote 241: English lawyers have represented suicide as an
offence both against God and against the sovereign, who "has an
interest in the preservation of all his subjects" (Plowden,
_Commentaries_, i. 261; Blackstone, _Commentaries on the Laws of
England_, iv. 190. _Cf._ Ives, _op. cit._ p. 40 _sq._).]
[Footnote 242: Simons, 'Exploration of the Goajira Peninsula,' in
_Proceed. Roy. Geo. Soc._ N. Ser. vii. 790.]
[Footnote 243: _Supra_, ii. 240 _sq._]
[Footnote 244: Durkheim, _Le suicide_, p. 377.]
CHAPTER XXXVI
SELF-REGARDING DUTIES AND VIRTUES--INDUSTRY--REST
ACCORDING to current ideas men owe to themselves a variety of
duties similar in kind to those which they owe to their
fellow-creatures. They are not only forbidden to take their own
lives, but are also in some measure considered to be under an
obligation to support their existence, to take care of their
bodies, to preserve a certain amount of personal freedom, not to
waste their property, to exhibit self-respect, and, in general,
to promote their own happiness. And closely related to these
self-regarding duties there are self-regarding virtues, such as
diligence, thrift, temperance. In all these cases, however, the
moral judgment is greatly influenced by the question whether the
act, forbearance, or omission, which increases the person's own
welfare, conflicts or not with the interests of other people. If
it does conflict, opinions vary as to the degree of selfishness
which is recognised as allowable. But judgments containing moral
praise or the inculcation of duty are most commonly passed upon
conduct which involves some degree of self-sacrifice, not on such
as involves self-indulgence.
Moreover, the duties which we owe to ourselves are generally much
less emphasised than those which we owe to others. "Nature," says
Butler, "has not given us so sensible a disapprobation of
imprudence and folly, either in ourselves or others, as of
falsehood, injustice, and {266} cruelty."[1] Nor does a
prudential virtue receive the same praise as one springing from a
desire to promote the happiness of a fellow-man. Many moralists
even maintain that, properly speaking, there are no
self-regarding duties and virtues at all; that useful action
which is useful to ourselves alone is not matter for moral
notice; that in every case duties towards one's self may be
reduced into duties towards others; that intemperance and
extravagant luxury, for instance, are blamable only because they
tend to the public detriment, and that prudence is a virtue only
in so far as it is employed in promoting public interest.[2] But
this opinion is hardly in agreement with the ordinary moral
consciousness.
[Footnote 1: Butler, 'Dissertation on the Nature of Virtue,' in
_Analogy of Religion, &c._ p. 339.]
[Footnote 2: Hutcheson, _Inquiry into the Original of our Ideas
of Beauty and Virtue_, pp. 133, 201. Grote, _Treatise on the
Moral Ideals_, p. 77 _sqq._ Clifford, _Lectures and Essays_,
pp. 298, 335. von Jhering, _Der Zweck im Recht_, ii. 225.]
It is undoubtedly true that no mode of conduct is exclusively
self-regarding. No man is an entirely isolated being, hence
anything which immediately affects a person's own welfare affects
at the same time, in some degree, the welfare of other
individuals. It is also true that the moral ideas concerning such
conduct as is called self-regarding are more or less influenced
by considerations as to its bearing upon others. But this is
certainly not the only factor which determines the judgment
passed on it. In the education of children various modes of
self-regarding conduct are strenuously insisted upon by parents
and teachers. What they censure or punish is regarded as wrong,
what they praise or reward is regarded as good; for, as we have
noticed above, men have a tendency to sympathise with the
retributive emotions of persons for whom they feel regard.[3]
Moreover, as in the case of suicide,[4] so also in other
instances of self-inflicted harm, the injury committed may excite
sympathetic resentment towards the agent, although the victim of
it is his own self. Disinterested likes or dislikes often give
rise to moral {267} approval or disapproval of conduct which is
essentially self-regarding.[5] It has also been argued that no
man has a right to trifle with his own well-being even where
other persons interests are not visibly affected by it, for the
reason that he is not entitled wantonly to waste "what is not at
his unconditional disposal."[6] And in various other ways--as
will be seen directly--religious, as well as magical, ideas have
influenced moral opinions relating to self-regarding conduct. But
at the same time it is not difficult to see why self-regarding
duties and virtues only occupy a subordinate place in our moral
consciousness. The influence they exercise upon other persons'
welfare is generally too remote to attract much attention. In
education there is no need to emphasise any other self-regarding
duties and virtues but those which, for the sake of the
individual's general welfare, require some sacrifice of his
immediate comfort or happiness. The compassion which we are apt
to feel for the victim of an injury is naturally lessened by the
fact that it is self-inflicted. And, on the other hand,
indignation against the offender is disarmed by pity, imprudence
commonly carrying its own punishment along with it.[7]
[Footnote 3: _Supra_, i. 114 _sq._]
[Footnote 4: _Supra_, ii. 262.]
[Footnote 5: _Cf._ _supra_, i. 116 _sq._]
[Footnote 6: Martineau, _Types of Ethical Theory_, ii. 126.]
[Footnote 7: _Cf._ Butler, _op. cit._ p. 339 _sq._; Dugald
Stewart, _Philosophy of the Active and Moral Powers of Man_,
ii. 346 _sq._]
Being so little noticed by custom and public opinion, and still
less by law, most self-regarding duties hardly admit of a
detailed treatment. In a general way it may be said that progress
in intellectual culture has, in some respects, been favourable to
their evolution; Darwin even maintains that, with a few
exceptions, self-regarding virtues are not esteemed by
savages.[8] The less developed the intellect, the less apt it is
to recognise the remoter consequences of men's behaviour; hence
more reflection than that exercised by the savage may be needed
to see that modes of conduct which immediately concern a person's
own welfare at the same time affect the well-being {268} of his
neighbours or the whole community of which he is a member. So
also, owing to his want of foresight, the savage would often fail
to notice how important it may be to subject one's self to some
temporary deprivation or discomfort in order to attain greater
happiness in the future. We have noticed above that many savages
hardly ever correct their children,[9] and this means that one of
the chief sources from which the notions of self-regarding duties
spring is almost absent among them. But on the other hand it must
also be remembered that disinterested antipathies, another cause
of such notions, exercise more influence upon the unreflecting
than upon the reflecting moral consciousness, and that many
magical and religious ideas which at the lower stages of
civilisation give rise to duties of a self-regarding character
are no longer held by people more advanced in culture.
[Footnote 8: Darwin, _Descent of Man_, p. 118 _sq._]
[Footnote 9: _Supra_, i. 513 _sq._]
These general statements referring to the nature and origin of
self-regarding duties and virtues I shall now illustrate by a
short survey of moral ideas concerning some representative modes
of self-regarding conduct:--industry and rest; temperance,
fasting, and abstinence from certain kinds of food and drink;
cleanliness and uncleanliness; and ascetic practices generally.
* * * * *
Man is naturally inclined to idleness, not because he is averse
from muscular activity as such, but because he dislikes the
monotony of regular labour and the mental exertion it
implies.[10] In general he is induced to work only by some
special motive which makes him think the trouble worth his while.
Among savages, who have little care for the morrow,[11] who have
few comforts of life to provide for, and whose property is often
of such a kind as to prevent any great accumulation of it, almost
the sole inducement to industry is either necessity or
compulsion. Men are lazy or industrious according as the
necessaries of life are easy {269} or difficult to procure, and
they prefer being idle if they can compel other persons to work
for them as their servants or slaves.
[Footnote 10: _Cf._ Ferrero, 'Les formes primitives du travail,'
in _Revue scientifique_, ser. iv. vol. v. 331 _sqq._]
[Footnote 11: Buecher, _Die Entstehung der Volkswirtschaft_,
p. 21 _sqq._]
Australian natives "can exert themselves vigorously when hunting
or fishing or fighting or dancing, or at any time when there is a
prospect of an immediate reward; but prolonged labour with the
object of securing ultimate gain is distasteful to them."[12]
With reference to the Polynesians Mr. Hale observes that in those
islands which are situated nearest the equator, where the heat
with little or no aid from human labour calls into existence
fruits serving to support human life, the inhabitants are an
indolent and listless race; whilst "a severer clime and ruder
soil are favourable to industry, foresight, and a hardy
temperament. These opposite effects are manifested in the
Samoans, Nukahivans, and Tahitians, on the one side, and the
Sandwich Islanders and New Zealanders on the other."[13] Mr. Yate
likewise contrasts the industry of the Maoris with the proverbial
idleness of the Tonga Islanders: the former "are obliged to work,
if they would eat," whereas "in the luxurious climate of the
Friendly Islands, there is scarcely any need of labour, to obtain
the necessaries, and even many of the luxuries, of life."[14] The
Malays are described as fond of a life of slothful ease, because
"persevering toil is unnecessary, or would bring them no
additional enjoyments."[15] The natives of Sumatra, says Marsden,
"are careless and improvident of the future, because their wants
are few; for though poor {270} they are not necessitous, nature
supplying, with extraordinary facility, whatever she has made
requisite for their existence."[16] The Toda of the Neilgherry
Hills will not "work one iota more than circumstances compel him
to do";[17] and indolence seems to be a characteristic of most
peoples of India,[18] though there are exceptions to the
rule.[19] Burckhardt observes that it is not the southern sun, as
Montesquieu imagined, but the luxuriance of the southern soil and
the abundance of provisions that relax the exertions of the
inhabitants and cause apathy:--"By the fertility of Egypt,
Mesopotamia, and India, which yield their produce almost
spontaneously, the people are lulled into indolence; while in
neighbouring countries, of a temperature equally warm, as among
the mountains of Yemen and Syria, where hard labour is necessary
to ensure a good harvest, we find a race as superior in industry
to the former as the inhabitants of Northern Europe are to those
of Spain or Italy."[20] Indolence is a common,[21] though not
universal,[22] trait of the African character. Of the Negroes on
the Gold Coast Bosman says that "nothing {271} but the utmost
necessity can force them to labour."[23] The Waganda are
represented as excessively indolent, in consequence of the ease
with which they can obtain all the necessaries of life.[24] Of
the Namaquas we are told that "they may be seen basking in the
sun for days together, in listless inactivity, frequently almost
perishing from thirst or hunger, when with very little exertion
they may have it in their power to satisfy the cravings of
nature. If urged to work, they have been heard to say: 'Why
should we resemble the worms of the ground?'"[25] Most of the
American Indians are said to have a slothful disposition, because
they can procure a livelihood with but little labour.[26] But the
case is different with the Greenlanders and other Eskimo, who
have to struggle hard for their existence.[27]
[Footnote 12: Brough Smyth, _Aborigines of Victoria_, i. 29 _sq._
See also _ibid._ ii. 248; Collins, _English Colony in New South
Wales_, i. 601; Fison and Howitt, _Kamilaroi and Kurnai_,
p. 259 _sq._]
[Footnote 13: Hale, _U.S. Exploring Expedition. Vol. VI.
Ethnography and Philology_, p. 17. See also Williams, _Missionary
Enterprises in the South Sea Islands_, p. 534 (Samoans); Ellis,
_Polynesian Researches_, i. 130 _sq._ (Tahitians); Brenchley,
_Cruise of H.M.S. Curaçoa among the South Sea Islands_, p. 58
(natives of Tutuila); Melville, _Typee_, p. 287 (some Marquesas
Islanders); Anderson, _Notes of Travel in Fiji and New
Caledonia_, p. 236 (New Caledonians); Penny, _Ten Years in
Melanesia_, p. 74 (Solomon Islanders).]
[Footnote 14: Yate, _Account of New Zealand_, p. 105 _sq._]
[Footnote 15: McNair, _Perak and the Malays_, p. 201. Bock,
_Head-Hunters of Borneo_, p. 275. Raffles, _History of Java_, i.
251. St. John, _Life in the Forests of the Far East_, ii. 323.]
[Footnote 16: Marsden, _History of Sumatra_, p. 209. See also
_Glimpses of the Eastern Archipelago_, pp. 76, 87 (Bataks).]
[Footnote 17: Marshall, _A Phrenologist amongst the Todas_, p.
88. See also _ibid._ p. 86; Shortt, 'Hill Tribes of the
Neilgherries,' in _Trans. Ethn. Soc._ N.S. vii. 241; Mantegazza,
'Studii sull' etnologia dell' India,' in _Archivio per
l'antropologia e la etnologia_, xiii. 406.]
[Footnote 18: Cooper, _Mishmee Hills_, p. 100 (Assamese).
Tickell, 'Memoir on the Hodésum,' in _Jour. Asiatic Soc. Bengal_,
ix. 808 (Hos). Dalton, _Ethnology of Bengal_, pp. 57 (Jyntias and
Kasias), 101 (Lepchas). Burton, _Sindh_, p. 284. Moorcroft and
Trebeck, _Travels in the Himalayan Provinces of Hindustan_, i.
321 (Ladakhis). Caldwell, _Tinnevelly Shanars_, p. 58.]
[Footnote 19: Man, _Sonthalia_, p. 19. Hodgson, _Miscellaneous
Essays_, i. 152 (Bódo and Dhimáls). Macpherson, _Memorials of
Service in India_, p. 81 (Kandhs).]
[Footnote 20: Burckhardt, _Arabic Proverbs_, p. 219.]
[Footnote 21: Beltrame, _Il Sénnaar_, i. 166. Tuckey, _Expedition
to Explore the River Zaire_, p. 369. Johnston, _The River Congo_,
p. 402 (Bakongo). Casati, _Ten Years in Equatoria_, i. 85 (Abaka
Negroes). Wilson and Felkin, _Uganda_, ii. 310 (Gowane people).
Burton, _Zanzibar_, ii. 96 (Wanika). Bonfanti, 'L'incivilimento
dei negri nell' Africa intertropicale,' in _Archivio per
l'antropologia e la etnologia_, xv. 133 (Bantu). Andersson, _Lake
Ngami_, p. 231 (Herero). Magyar, _Reisen in Süd-Afrika_, p. 290
(Kimbunda). Kropf, _Das Volk der Xosa-Kaffern_, p. 89. Tyler,
_Forty Years among the Zulus_, p. 194. Ellis, _History of
Madagascar_, i. 140. Shaw, 'Betsileo Country and People,' in
_Antananarivo Annual_, iii. 81.]
[Footnote 22: Baker, _Ismailïa_, p. 56 (Shilluk). Baumann,
_Usambara_, p. 244 (Wapare). Bosman, _Description of the Coast of
Guinea_, p. 318 (Negroes of Fida). Andersson, _Notes on Travel in
South Africa_, p. 235 (Ovambo). See also _infra_, p. 272.]
[Footnote 23: Bosman, _op. cit._ p. 101.]
[Footnote 24: Wilson and Felkin, _op. cit._ i. 225.]
[Footnote 25: Andersson, _Lake Ngami_, p. 335. See also Kolben,
_Present State of the Cape of Good-Hope_, i. 46, 324; Barrow,
_Travels into the Interior of Southern Africa_, i. 152; Fritsch,
_Die Eingeborenen Süd-Afrika's_, p. 324 (Hottentots).]
[Footnote 26: Bridges, 'Manners and Customs of the Firelanders,'
in _A Voice for South America_, xiii. 203 (Fuegians).
Dobrizhoffer, _Account of the Abipones_, ii. 151; but he praises
the Abiponian women for their unwearied industry (_ibid._ ii. 151
_sq._). Brett, _Indian Tribes of Guiana_, p. 343; Kirke,
_Twenty-five Years in British Guiana_, p. 150. Domenech, _Seven
Years' Residence in the Great Deserts of North America_, ii. 190.
Burton, _City of the Saints_, p. 126 (Sioux). Harmon, _Voyages
and Travels in the Interior of North America_, p. 285
(Tacullies). Meares, _Voyages to the North-West Coast of
America_, p. 265 (Nootkas).]
[Footnote 27: Cranz, _History of Greenland_, i. 126. Armstrong,
_Narrative of the Discovery of the North-West Passage_, p. 196
(Western Eskimo).]
We have seen that savages consider it a duty for a married man to
support his family,[28] and this in most cases implies that he is
under an obligation to do a certain amount of work. We have also
seen that the various occupations of life are divided between the
sexes according to rules fixed by custom,[29] and this means that
absolute idleness is not generally tolerated in either men or
women, though the drudgeries of life are often imposed upon the
latter. Of some uncivilised peoples we are directly told that
they enjoin work as a duty or regard industry as a virtue. The
Greenlanders esteem addiction to labour as the chief of virtues
and believe that the industrious man {272} will have a very happy
existence after death.[30] The Atkha Aleuts prohibited
laziness.[31] Mr. Batchelor relates an Ainu fable which
encourages diligence and discourages idleness in young
people.[32] The Karens of Burma have a traditional precept which
runs, "Be not idle, but labour diligently, that you may not
become slaves."[33] The Maoris say, "Let industry be rewarded,
lest idleness gets the advantage."[34] The Malagasy likewise
inculcate industry in many of their proverbs.[35] The Basutos
have a saying that "perseverance always triumphs."[36] Among the
Bachapins, a Bechuana tribe conspicuous for its activity, "a
man's merit is estimated principally by his industry, and the
words _mún[)o]n[)a] usináach[)a]_ (an industrious man) are an
expression of high approbation and praise; while he who is seldom
seen to hunt, to prepare skins for clothing, or to sew koboes, is
accounted a worthless and disgraceful member of society."[37]
Among the Beni M'zab in the Sahara--an industrious people
inhabiting a sterile country--boys are already at the age of six
years compelled by law to begin to work, either in driving a
camel or ass, or in drawing water for the gardens.[38] We may
expect to find industry especially insisted upon by uncivilised
peoples who are habitually addicted to it, partly because it is a
necessity among them, partly owing to the influence of habit.
[Footnote 28: _Supra_, i. 526 _sqq._]
[Footnote 29: _Supra_, i. 634 _sqq._]
[Footnote 30: Cranz, _op. cit._ i. 186.]
[Footnote 31: Yakof, quoted by Petroff, _Report on Alaska_,
p. 158.]
[Footnote 32: Batchelor, _Ainu of Japan_, p. 111.]
[Footnote 33: Smeaton, _Loyal Karens of Burma_, p. 255.]
[Footnote 34: Taylor, _Te Ika a Maui_, p. 293. See also Johnston,
_Maoria_, p. 43.]
[Footnote 35: Clemes, 'Malagasy Proverbs,' in _Antananarivo
Annual_, iv. 29.]
[Footnote 36: Casalis, _Basutos_, p. 310.]
[Footnote 37: Burchell, _Travels in the Interior of Southern
Africa_, ii. 557.]
[Footnote 38: Tristram, _The Great Sahara_, p. 207 _sq._]
But instead of being regarded as a duty, industrial activity is
not infrequently looked down upon as disreputable for a free man.
This is especially the case among warlike nations, nomadic
tribes, and peoples who have many slaves. In Uganda, for
instance, the prevalence of slavery "causes all manual labour to
be looked upon as derogatory to the dignity of a free man."[39]
The {273} Masai[40] and Matabele[41] consider that the only
occupation which becomes a man is warfare. The Arabs of the
desert hold labour humiliating to anybody but a slave.[42]
Speaking of the Turkomans, Vámbéry observes that "in his domestic
circle, the nomad presents us a picture of the most absolute
indolence. In his eyes it is the greatest shame for a man to
apply his hand to any domestic occupation."[43] The Chippewas
"have ever looked upon agricultural and mechanical labours as
degrading," and "have regarded the use of the bow and arrow, the
war-club and spear, as the noblest employments of man."[44] Among
the Iroquois "the warrior despised the toil of husbandry, and
held all labour beneath him."[45] Though an industrious race, the
Maoris considered it more honourable, as well as more desirable,
to acquire property by war and plunder than by labour.[46] Among
the Line Islanders it is undignified for a landholder to do work
of any kind, except to make weapons, hence he employs persons of
the lower class to work for him.[47] In Nukahiva the people of
distinction "suffer the nails on the fingers to grow very long,
that it may be evident they are not accustomed to hard
labour."[48] This contempt for industrial activity is easy to
explain. A man who earns his livelihood by labour is considered
to be lacking in those qualities which are alone admired--courage
and strength;--or work is associated with the idea of servile
subjection. It is also universally held degrading for a man to
engage in any occupation which belongs to the women.[49] Thus
among hunting and pastoral peoples it would be quite out of place
for him to supply the household with vegetable food.[50] On the
other hand, when agriculture became an {274} indispensable means
to maintenance of life it at the same time became respectable.
But trade was scorned, probably, as Mr. Spencer suggests, because
it was carried on chiefly by unsettled persons, who were
detached, untrustworthy members of a community in which most men
had fixed positions.[51] The Kandhs "consider it beneath their
dignity to barter or traffic, and . . . . regard as base and
plebeian all who are not either warriors or tillers of the
soil."[52] The Javans "have a contempt for trade, and those of
higher rank esteem it disgraceful to be engaged in it; but the
common people are ever ready to engage in the labours of
agriculture, and the chiefs to honour and encourage agricultural
industry."[53]
[Footnote 39: Wilson and Felkin, _op. cit._ i. 186.]
[Footnote 40: Merker, _Die Masai_, p. 117.]
[Footnote 41: Holub, 'Die Ma-Atabele,' in _Zeitschr. f. Ethnol._
xxv. 198.]
[Footnote 42: Burton, _Pilgrimage to Al-Madinah & Meccah_,
ii. 10.]
[Footnote 43: Vámbéry, _Travels in Central Asia_, p. 320.]
[Footnote 44: Schoolcraft, _Archives of Aboriginal Knowledge_,
v. 150.]
[Footnote 45: Morgan, _League of the Iroquois_, p. 329.]
[Footnote 46: Travers, 'Life and Times of Te Rauparaha,' in
_Trans. New Zealand Inst._ v. 29.]
[Footnote 47: Tutuila, 'Line Islanders,' in _Jour. Polynesian
Soc._ i. 266.]
[Footnote 48: von Langsdorf, _Voyages and Travels_, i. 174.]
[Footnote 49: _Supra_, i. 636 _sq._]
[Footnote 50: _Supra_, i. 634.]
[Footnote 51: Spencer, _Principles of Ethics_, i. 429.]
[Footnote 52: Campbell, _Wild Tribes of Khondistan_, p. 50.]
[Footnote 53: Raffles, _op. cit._ i. 246 _sq._]
Progress in civilisation implies an increase of industry. Both
the necessities and the comforts of life grow more numerous;
hence more labour is required to provide for them, and at the
same time there is more inducement to accumulate wealth. The
advantages, both private and public, accruing from diligence are
more clearly recognised, and the government, in particular, is
anxious that the people should work so as to be able to pay their
taxes. All this leads to condemnation of idleness and approbation
of industry; and the influence of habit must operate in the same
direction among a nation whose industrial propensities have been
the cause of its civilisation. But in the archaic State war is
still regarded as a nobler occupation than labour; and whilst
agriculture is held in honour, trade and handicraft are
frequently despised.
In the kingdom of the Peruvian Incas there was a law that no one
should be idle. "Children of five years old were employed at very
light work, suitable to their age. Even the blind and lame, if
they had no other infirmity, were provided with certain kinds of
work. The rest of the people, while they were healthy, were
occupied each at his own labour, and it was a most infamous and
degrading {275} thing among these people to be chastised in
public for idleness."[54] If any of them was slothful, or slept
in the day, he was whipped or had to carry the stone.[55] The
reason for these measures was that the whole duty of defraying
the expenses of the government belonged to the people, and that,
without money and with little property, they paid their taxes in
labour; hence to be idle was, in a manner, to rob the
exchequer.[56]
[Footnote 54: Blas Valera, quoted by Garcilasso de la Vega,
_First Part of the Royal Commentaries of the Yncas_, ii. 34. See
also _ibid._ ii. 14; Acosta, _Natural and Moral History of the
Indies_, ii. 413.]
[Footnote 55: Herrera, _General History of the West Indies_,
iv. 339.]
[Footnote 56: Prescott, _History of the Conquest of Peru_, i. 57.]
One of the characteristics of Zoroastrianism is its appreciation
of labour.[57] The faithful man must be vigilant, alert, and
active; sleep itself is merely a concession to the demons, and
should therefore be kept within the limits of necessity.[58] The
lazy man is the most unworthy of men, because he eats his food
through impropriety and injustice.[59] And of all kinds of labour
the most necessary is husbandry.[60] Man has been placed upon
earth to preserve Ahura Mazda's good creation, and this can only
be done by careful tilling of the soil, eradication of thorns and
weeds, and reclamation of the tracks over which Angra Mainyu has
spread the curse of barrenness. Zoroaster asked, "What is the
food that fills the Religion of Mazda?" and Ahura Mazda answered,
"It is sowing corn again and again, O Spitama Zarathustra! He who
sows corn sows righteousness."[61] According to Xenophon, the
king of the Persians considered the art of agriculture and that
of war to be the most honourable and necessary occupations, and
paid the greatest attention to both.[62] He appointed officers to
overlook the tillers of the ground, as well as to collect tribute
from them; for "those who {276} cultivate the ground
inefficiently will neither maintain the garrisons, nor be able to
pay their tribute."[63]
[Footnote 57: See Darmesteter, in _Sacred Books of the East_, iv.
p. lxvii.; Geiger, _Civilization of the Eastern Ir[=a]nians_, i.
70; Rawlinson, _Religions of the Ancient World_, p. 108; _Dînâ-î
Maînôg-î Khirad_, ii. 29, xxxvi. 15, xxxvii. 14, &c.]
[Footnote 58: _Vendîdâd_, xviii. 16.]
[Footnote 59: _Dînâ-î Maînôg-î Khirad_, xxi. 27.]
[Footnote 60: See _Vendîdâd_, iii. 23 _sqq._]
[Footnote 61: _Ibid._ iii. 30 _sq._]
[Footnote 62: Xenophon, _[OE]conomicus_, iv. 4, 8 _sqq._]
[Footnote 63: Xenophon, _[OE]conomicus_, iv. 9, 11.]
In his description of ancient Egypt Herodotus tells us that one
of its kings made a law to the effect that every Egyptian should
annually declare to the governor of his district by what means he
maintained himself, and that, if he failed to do this, or did not
show that he lived by honest means, he should be punished with
death.[64] Whether this statement be correct or not,[65] it seems
certain that the Egyptians were anxious to encourage
industry.[66] An ostracon which has often been quoted contains
the maxim, "Do not spare thy body whilst thou art young, for food
cometh by the arms and provisions by the legs."[67]
[Footnote 64: Herodotus, ii. 177. _Cf._ Diodorus Siculus,
_Bibliotheca historica_, i. 77. 5.]
[Footnote 65: _Cf._ Wiedemann, _Herodots zweites Buch_, p. 605.]
[Footnote 66: See Amélineau, _Essai sur l'évolution des idées
morales dans l'Égypte Ancienne_, p. 329.]
[Footnote 67: Gardiner, 'Egyptian Ethics,' in Hastings'
_Encyclopædia of Religion and Ethics_, v. 484.]
A law against idleness resembling that which is reported to have
existed in Egypt was established at Athens, according to some
writers by Draco or Pisistratus,[68] according to others by
Solon, who is said to have borrowed it from the Egyptians.[69]
Plutarch states that, as the city was filled with persons who
assembled from all parts on account of the great security which
prevailed in Attica and the country withal was poor and barren,
Solon turned the attention of the citizens to manufactures. For
this purpose he ordered that trades should be accounted
honourable, that the council of the Areopagus should examine into
every man's means of subsisting and chastise the idle, and that
no son should be obliged to maintain his father if the father had
not taught him a trade.[70] Thucydides puts the following words
in the mouth of Pericles:--"To avow poverty with us is no
disgrace; the true disgrace is in doing nothing to avoid it. An
Athenian citizen does not neglect the State because he takes care
of his own household;{277} and even those of us who are engaged
in business have a very fair idea of politics."[71] In Xenophon's
'Memorabilia' Socrates recommends industry as a means of
supporting life, of maintaining the health and strength of the
body, of promoting temperance and honesty.[72] According to Plato
idleness is the mother of wantonness, whereas by labour the
aliment of passion is diverted into other parts of the body.[73]
Agriculture was highly praised. It is the best of all the
occupations and arts by which men procure the means of
living.[74] Where it flourishes all other pursuits are in full
vigour, but when the ground is allowed to lie barren other
occupations are almost stopped.[75] It is an exercise for the
body, and strengthens it for discharging the duties that become a
man of honourable birth.[76] It requires people to accustom
themselves to endure the colds of winter and the heats of
summer.[77] It renders them fit for running, throwing,
leaping.[78] It gives them the greatest gratification for their
labour, it is the most attractive of all employments.[79] It
receives strangers with the richest hospitality.[80] It offers
the most pleasing first-fruits to the gods, and the richest
banquets on festival days.[81] It teaches men justice, for it is
those who treat the earth best that she recompenses with the most
numerous benefits.[82] It instructs people to assist one another,
for it cannot be conducted without the aid of other men.[83] It
does not give such constant occupation to a person's mind as to
prevent him from attending to the interests of his friends or his
native land.[84] The possession of an estate stimulates men to
defend their country in arms.[85] In short, agriculture renders
citizens most useful, most virtuous, and best affected towards
the commonwealth.[86]
[Footnote 68: Pollux, _Onomasticum_, viii. 42. Diogenes Laertius,
_Vitæ philosophorum_, i. 55. Plutarch, _Solon_, xxxi. 6.]
[Footnote 69: Herodotus, ii. 177. Diodorus Siculus, i. 77. 5.]
[Footnote 70: Plutarch, _Solon_, xxii. 1, 3 _sq._]
[Footnote 71: Thucydides, _Historia belli Peloponnesiaci_,
ii. 40. 1 _sq._]
[Footnote 72: Xenophon, _Memorabilia_, ii. 7. 7 _sq._]
[Footnote 73: Plato, _Leges_, viii. 835, 841.]
[Footnote 74: Xenophon, _[OE]conomicus_, vi. 8.]
[Footnote 75: _Ibid._ v. 17.]
[Footnote 76: _Ibid._ v. 1; vi. 9.]
[Footnote 77: _Ibid._ v. 4.]
[Footnote 78: _Ibid._ v. 8.]
[Footnote 79: _Ibid._ v. 8, 11.]
[Footnote 80: _Ibid._ v. 8.]
[Footnote 81: _Ibid._ v. 10.]
[Footnote 82: _Ibid._ v. 12.]
[Footnote 83: _Ibid._ v. 14.]
[Footnote 84: _Ibid._ vi. 9.]
[Footnote 85: _Ibid._ v. 7.]
[Footnote 86: _Ibid._ vi. 10.]
{278} The argumentative manner in which these views were
expressed by the philosophers indicates, however, that industrial
occupations were deficient in public appreciation.[87] Herodotus
says that not only among most barbarians but also throughout
Greece those who are given wholly to war are honoured above
others.[88] This was especially the case at Sparta, where a
freeman was forbidden to engage in any industrial occupation.[89]
Contrasting Lycurgus' legislation with that of Solon, Plutarch
observes that in a state where the earth was sufficient to
support twice the number of inhabitants and where there were a
multitude of Helots to be worn out by servitude, it was right to
set the citizens free from laborious and mechanic arts and to
employ them in arms as the only art fit for them to learn and
exercise.[90] At Thebes there was a law that no man could hold
office who had not retired from business for ten years, because
it was looked upon as a mean employment.[91] Even at Athens, in
spite of its democratic institutions and its laws against
idleness, trade and handicrafts were despised, both by the
general public and by the philosophers. Xenophon's Socrates said
that the industrial arts are objectionable and justly held in
little repute in communities, because they weaken the bodies of
those who work at them by compelling them to sit and to live
indoors and in some cases to pass whole days by the fire; for
when the body becomes effeminate the mind loses its strength.[92]
Moreover, mechanical occupations leave those who practise them no
leisure to attend to the interests of their friends or the
commonwealth, hence men of that class seem unsuited alike to be
of advantage to their connections and to be defenders of their
country.[93] Plato maintains that manual arts are a reproach
because they "imply a natural weakness of the higher
principle";[94] by {279} their meanness they maim and disfigure
the souls as well as the bodies of those who are employed in
them.[95] When Hesiod said that "work is no disgrace,"[96] he
could certainly not have meant that there was no disgrace for
example in the manufacture of shoes or in selling pickles.[97]
And in his 'Laws' Plato lays down the regulation that no citizen
or servant of a citizen should be occupied in handicraft arts;
"for he who is to secure and preserve the public order of the
State has an art which requires much study and many kinds of
knowledge, and does not admit of being made a secondary
occupation."[98] Aristotle, again, observes that in a community
which has an aristocratic form of government the mechanic and the
labourer will not be citizens, because honours are there given
according to virtue and merit, and "no man can practise virtue
who is living the life of a mechanic or labourer."[99] Corinth
was the place in Greece where the mechanic's occupation was least
despised[100]--no doubt because its situation naturally led to
extensive trade and thence to that splendour of living by which
the useful and ornamental arts are most encouraged.[101]
[Footnote 87: _Cf._ Schmidt, _Die Ethik der alten Griechen_,
ii. 435 _sqq._]
[Footnote 88: Herodotus, ii. 167.]
[Footnote 89: _Ibid._ ii. 167. Xenophon, _Lacedæmoniorum
respublica_, vii. 2. Plutarch, _Lycurgus_, xxiv. 2. _Idem_,
_Agesilaus_, xxvi. 6. Aelian, _Varia historia_, vi. 6.]
[Footnote 90: Plutarch, _Solon_, xxii. 2.]
[Footnote 91: Aristotle, _Politica_, iii. 5. 7, p. 1278 a; vi. 7.
4, p. 1321 a.]
[Footnote 92: Xenophon, _[OE]conomicus_, iv. 2.]
[Footnote 93: _Ibid._ iv. 3.]
[Footnote 94: Plato, _Respublica_, ix. 590.]
[Footnote 95: _Ibid._ vi. 495.]
[Footnote 96: Hesiod, _Opera et dies_, 311.]
[Footnote 97: Plato, _Charmides_, p. 163.]
[Footnote 98: _Idem_, _Leges_, viii. 846.]
[Footnote 99: Aristotle, _Politica_, iii. 5. 5, p. 1278 a. See
also _ibid._ vi. 4. 12, p. 1319 a; vii. 8. 3, p. 1328 b; viii. 2.
4 _sq._ p. 1337 b.]
[Footnote 100: Herodotus, ii. 167.]
[Footnote 101: See Rawlinson's note in his translation of
Herodotus, ii. 252, n. 7.]
The Roman views on the subject were very similar to those of the
Greeks. With regard to what arts and means of acquiring wealth
are to be regarded as worthy and what disreputable, says Cicero,
we have been taught as follows. In the first place, those sources
of emolument which incur public hatred, such as those of
tax-gatherers and usurers, are condemned. We are likewise to
account as mean the gains of hired workmen, whose source of
profit is not their art but their labour; for their very wages
are the consideration of their servitude. We are further to
despise all who retail from merchants goods for prompt sale; for
they never can succeed unless they lie most abominably, {280} and
nothing is more disgraceful than insincerity. All mechanical
labourers are by their profession mean; for a workshop can
contain nothing befitting a gentleman. Least of all are those
trades to be approved that serve the purposes of sensuality, such
as the occupations of butchers, cooks, and fishermen. But those
professions that involve a higher degree of intelligence or a
greater amount of utility, such as medicine, architecture, and
the teaching of the liberal arts, are honourable in those to
whose rank in life they are suited. As to merchandising, if on a
small scale it is mean, but if it is extensive and rich, if it
brings numerous commodities from all parts of the world, and
gives bread to a multitude of people without fraud, it is not so
despicable. However, if a merchant, satisfied with his profits,
steps from the harbour into an estate, such a man seems most
justly deserving of praise. For of all gainful professions
nothing is better, nothing is more pleasing and more delightful,
nothing is more befitting a well-bred man than agriculture.[102]
[Footnote 102: Cicero, _De officiis_, i. 42. See also _Idem_,
_Cato Major_, ch. 15 _sqq._]
The contempt in which manual labour was held by the ancient
pagans could hardly be shared by early Christianity. Christ had
been born in a carpenter's family, his apostles belonged to the
working class, and so did originally most of his followers.
Origen accepts with pride the reproach of Celsus, when he accuses
Christians of worshipping the son of a poor workwoman, who had
earned her bread by spinning,[103] and contrasts with the wisdom
of Plato that of Paul, the tent-maker, of Peter, the fisherman,
of John, who had abandoned his father's nets.[104] St. Paul
presses on the Thessalonians the duty of personal industry; "if
any one would not work, neither should he eat."[105] But at the
same time the spirit of Christianity was not consistent with much
anxiety about earthly matters. The aim of a true disciple of
Christ was not to prosper in the world but {281} to seek the
kingdom of God, not to lay up for himself treasures upon earth
but to lay up for himself treasures in heaven.[106] Poverty
became an ideal, in conformity with both the example and
teachings of Christ. It was associated with godliness, whilst
wealth was associated with godlessness.[107] "The love of money,"
says St. Paul, "is the root of all evil";[108] and the same idea
was over and again expressed by Christian moralists.[109] In the
original sinless state of mankind property was unknown, and so
was labour. It was to punish man for his disobedience that God
caused him to eat daily bread in the sweat of his face.[110]
Since then work is a necessity; but the contemplative life is
better than the active life.[111] Bonaventura points out that
Jesus preferred the meditating Mary to the busy Martha,[112] and
that he himself seems to have done no work till his thirtieth
year.[113] Work is of no value by itself; its highest object is
to further contemplation, to macerate the body, to curb
concupiscence.[114] For this purpose, indeed, it was strongly
insisted upon by several founders of religious orders. According
to St. Benedict, "idleness is an enemy to the soul; and hence at
certain seasons the brethren ought to occupy themselves in the
labour of their hands, and at others in holy reading."[115] St.
Bernard writes:--"The handmaid of Christ ought always to pray, to
read, to work, lest haply the spirit of uncleanness should lead
astray the slothful mind. The delight of the flesh is overcome by
labour. . . . The body tired by work is less delighted with
vice."[116] But the active life must not be pursued to such an
extent as to hinder what it is intended to promote; {282} for it
is impossible for any man to be at once occupied with exterior
actions and at the same time apply himself to divine
contemplation.[117] And whilst he who has nothing else to live
upon is bound to work, it is a sin to try to acquire riches
beyond the limit which necessity has fixed.[118]
[Footnote 103: Origen, _Contra Celsum_, i. 28 _sq._ (Migne,
_Patrologiæ cursus_, Ser. Graeca, xi. 714 _sq._).]
[Footnote 104: _Ibid._ vi. 7 (Migne, Ser. Gr. xi. 1298 _sq_.).]
[Footnote 105: _1 Thessalonians_, iv. 11; _2
