[67] Fraser, Aborigines of New South Wales, p. 39.
[68] Taplin, ‘Narrinyeri,’ in Woods, Native Tribes of South Australia, p. 34 sq.
[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 seems to have developed, not out of a previous system of lynch-law, but out of a previous system of private revenge.
[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 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.
[71] Fison and Howitt, op. cit. p. 282.
[72] Hyades and Deniker, Mission scientifique du Cap Horn, vii. 240 sq.
[73] Boas, ‘Central Eskimo,' in Ann. Rep. Bur. Ethn. vi. 582.
[74] Nansen, Eskimo Life, p. 163.