[93] Elphinstone, Kingdom of Caubul, ii. 105 sq.
[94] Kemble, Saxons in England, i. 270.
We have previously discussed the important measure of substituting punishment for revenge by transferring the judicial and executive power of the avenger to a special authority within the body politic, commissioned with the administration of justice. The system of compensation was only one or the methods adopted by such an authority for the settling of disputes; and, on the whole, it was a sign of weakness. Speaking of the Rejangs of Sumatra, Marsden observes that the practice of expiating murder by the payment of a certain sum of money “had doubtless its source in the imbecility of government, which being unable to enforce the law of retaliation, the most obvious rule of punishment, had recourse to a milder scheme of retribution, as being preferable to absolute indemnity.”[95] When the central power of jurisdiction is firmly established, the rule of life for life regains its sway.[96] Thus, in the mature legislation of semi-civilised and civilised peoples, up to quite recent times, murder has almost invariably been treated as a capital offence—unless, indeed, committed by some person belonging to a specially privileged class, such as the Peruvian Incas,[97] the Brâhmanas of India,[98] or, in England, all who had the benefit of Clergy, that is, every man who knew how to read, with the exception of those who were married to widows.[99] But among many of the lower races, also, manslayers are subject to capital punishment, in the proper sense of the term—to death inflicted, not by an individual avenger, but by the community at large or by some special authority.[100]
[95] Marsden, History of Sumatra, p. 246.
[96] Cf. Brunner, Deutsche Rechtsgeschichte, ii. 599 sq. (Teutonic peoples).
[97] Réville, Hibbert Lectures on the Native Religions of Mexico and Peru, p. 151.
[98] Laws of Manu, viii. 380 sq.
[99] Stephen, History of the Criminal Law of England, i. 458 sqq. According to the Cornelian law, a free Roman citizen could not be punished capitally for the commission of murder, but was simply exiled from Italy, whereas a slave was executed for a similar crime (Mommsen, Römisches Strafrecht, p. 631 sq.).
[100] Supra, [pp. 171], [172], [189]. Veniaminof, quoted by Petroff, loc. cit. p. 152 (Aleuts). Adair, History of the American Indians, p. 150. Morgan, League of the Iroquois, p. 331. Harmon, Journals of Voyages and Travels, p. 348 (Indians on the east side of the Rocky Mountains). Turner, Samoa, pp. 178, 295, 334 (Samoans, natives of Arorae, Efatese). Thomson, in Jour. Anthr. Inst. xxxi. 143 (Savage Islanders). Hickson, A Naturalist in North Celebes, p. 198 (Sangirese, in former days). Abreu de Galindo, History of the Discovery and Conquest of the Canary Islands, p. 27 (aborigines of Ferro). Johnston, Uganda Protectorate, ii. 882 (Mutei). Beltrame, Il Fiume Bianco e i Dénka, p. 77. In all these cases homicide or murder is said to be punished with death; but it may be that, in some of them, our authorities have not sufficiently distinguished between punishment and blood-revenge.
It is not only by the slaying of a fellow-creature that a person may forfeit his right to live. Among various peoples custom allows, or sometimes even compels, the offended party to kill the offender in cases which involve no blood-guiltiness, especially adultery;[101] and we hear of capital punishment being inflicted not only for homicide, but for treason,[102] incest,[103] adultery,[104] witchcraft,[105] sacrilege,[106] theft,[107] and other offences.[108] We have seen that among semi-civilised and civilised nations, particularly, the punishment of death has been applied to a great variety of offences, many of which appear to us almost venial.[109] And we have discussed both the origin of the idea that justice requires life for life, and the circumstances that have led to the infliction of punishments the severity of which, apparently at least, bears no proportion to the magnitude of the crime.[110]