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.