[70] Hanoteau and Letourneux, op. cit. 75.
[71] Hourst, op. cit. p. 207.
[72] Blunt, op. cit. ii. 239.
[73] Dorsey, ‘Omaha Sociology,’ in Ann. Rep. Bur. Ethn. iii. 332.
[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 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.
[75] See also Wheeler, The Tribe, and Intertribal Relations in Australia, passim.
[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 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]
[77] Griffis, Religions of Japan, p. 129.