[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.
[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 restricted by custom to cases where the wife has committed some offence, and, especially, where she has been guilty of unfaithfulness.
[1] Curr, Recollections of Squatting in Victoria, p. 248.
[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.
[3] Brownlee, in Maclean, Compendium of Kafir Laws and Customs, p. 117.
[4] Schwarz, quoted by Post, Afrikanische Jurisprudenz, i. 401.