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.]