[60] Steinmetz, op. cit. ii. ch. 5.
[61] See infra, on [Homicide].
Nearly related to the punishment of expulsion is that of outlawry. Von Wrede states that the Bedouins of Ḥadhramaut give a respite of three days to the banished man, and that after the lapse of this period every member of the tribe is allowed to kill him.[62] Among the Wyandots the lowest grade of outlawry consists in a declaration that, if the offender shall continue in the commission of crimes similar to that of which he has been guilty, it will be lawful for any person to kill him, whilst outlawry of the highest degree makes it the duty of any member of the tribe who may meet with the offender to kill him.[63] Among the ancient Teutons, also, outlawry was originally a declaration of war by the commonwealth against an offending member, and became only later on a regular means of compelling submission to the authority of the courts.[64]
[62] von Wrede, Reise in Ḥadhramaut, p. 51.
[63] Powell, ‘Wyandot Government,’ in Ann. Rep. Bur. Ethn. i. 68.
[64] Pollock and Maitland, History of English Law before the time of Edward I. i. 49.
Most generally, however, punishment is inflicted upon the culprit, not by the whole of the community, but by some person or persons invested with judicial authority. Indeed, it is not only civilised races who have judges and courts of justice. Among savages and barbarians justice is very frequently administered by a council of elders or by a chief.[65] Even people of so low a type as the Australian aborigines have their tribunals.
[65] Petroff, ‘Report on Alaska,’ in Tenth Census of the United States, p. 152 (Aleuts). Morgan, League of the Iroquois, p. 330. Powell, in Ann. Rep. Bur. Ethn. i. 63, 66 sq. (Wyandots). Idem, ‘Sociology,’ in American Anthropologist, N.S. i. 706 (North American tribes). Schoolcraft, Indian Tribes of the United States, i. 277 (Creeks). von Martius, Beiträge zur Ethnographie Amerika’s, i. 88 (Brazilian Indians). Cook, Journal of a Voyage round the World, p. 41 (Tahitians). Lister, in Jour. Anthr. Inst. xxi. 54 (Bowditch Islanders). Codrington, Melanesians, p. 345 (Solomon Islanders). Hunt, in Jour. Anthr. Inst. xxviii. 6 (Murray Islanders). Kohler, in Zeitschr. f. vergl. Rechtswiss. xiv. 448; Senfft, in Steinmetz, Rechtsverhältnisse, p. 448; Kubary, ‘Die Ebongruppe im Marshall’s Archipel,’ in Journal des Museum Godeffroy, i. 37 (Marshall Islanders). Idem, Ethnographische Beiträge zur Kenntniss der Karolinischen Inselgruppe, p. 73 sqq.; Idem, ‘Die Palau-Inseln,’ in Journal des Museum Godeffroy, iv. 42 (Pelew Islanders). von Kotzebue, Voyage of Discovery, iii. 208 (Caroline Islanders). Worcester, Philippine Islands, p. 107 (Tagbanuas of Palawan). Marsden, History of Sumatra, p. 217 (Rejangs). von Brenner, Besuch bei den Kannibalen Sumatras, p. 211 (Bataks). Forbes, A Naturalist’s Wanderings in the Eastern Archipelago, p. 243 (Kubus of Sumatra). Man, Sonthalia, p. 88 sq. Cooper, Mishmee Hills, p. 238. Macpherson, Memorials of Service in India, p. 83 (Kandhs). Stewart, in Jour. As. Soc. Bengal, xxiv. 609, 620 (Nagas, Old Kukis). Dalton, Ethnology of Bengal, p. 45 (Kukis). Forsyth, Highlands of Central India, p. 361 (Bygás). Shortt, in Trans. Ethn. Soc. N.S. vii. 241 (Todas). Batchelor, Ainu and their Folk-Lore, p. 278; von Siebold, Die Aino auf der Insel Yesso, p. 34. From Africa a great number of instances might be quoted, e.g.:—Nachtigal, Sahara und Sudan, i. 449 (Tedâ). Petherick, Egypt, the Soudan, and Central Africa, p. 320 (Nouaer tribes). Beltrame, Il Fiume Bianco, p. 77 (Shilluk). Laing, Travels in the Timannee, &c. Countries, p. 365 (Soolimas). Mungo Park, Travels in the Interior of Africa, p. 15 sq. (Mandingoes). Leuschner, in Steinmetz, Rechtsverhältnisse, p. 22 (Bakwiri). Ibid. p. 47 (Banaka and Bapuku). Tellier, ibid. p. 175 (Kreis Kita, in the French Soudan). Bosman, New Description of the Coast of Guinea, p. 331 (Negroes of Fida). Casati, Ten Years in Equatoria, p. 158, 163 (Akkas, Mambettu). Stuhlmann, Mit Emin Pascha ins Herz von Africa, p. 523 (A-lūr). Emin Pasha in Central Africa, p. 89 (Wanyoro). Baskerville, in Steinmetz, Rechtsverhältnisse, p. 193 (Waganda). Beverley, ibid. p. 214 (Wagogo). Lang, ibid. p. 253 sqq. (Washambala). Desoignies, ibid. p. 279 sq. (Msalala). Decle, Three Years in Savage Africa, pp. 71, 73, 74, 487 (Barotse, Wakamba). Junod, Les Ba-Ronga, p. 155 sq. Burton, Zanzibar, ii. 94 (Wanika). Holub, Seven Years in South Africa, ii. 319 (Marutse). Kohler, in Zeitschr. f. vergl. Rechtswiss. xiv. 316 (Herero). Andersson, Lake Ngami, p. 197 (Ovambo). Rautanen, in Steinmetz, Rechtsverhältnisse, p. 340 (Ondonga). Kolben, Present State of the Cape of Good Hope, p. 86, 297 (Hottentots). Kohler, in Zeitschr. f. vergl. Rechtswiss. xv. 333 (Bechuanas). Casalis, Basutos, pp. 224, 226. Maclean, Compendium of Kafir Laws and Customs, pp. 35, 110. Holden, Past and Future of the Kaffir Races, pp. 333, 336. Shooter, Kafirs of Natal, p. 99 sq.
Speaking of the native tribes of Central Australia, Messrs. Spencer and Gillen observe:—“Should any man break through the strict marriage laws, it is not only an ‘impersonal power’ which he has to deal with. The head men of the group or groups concerned consult together with the elder men, and, if the offender, after long consultation, be adjudged guilty and the determination be arrived at that he is to be put to death—a by no means purely hypothetical case—then the same elder men make arrangements to carry the sentence out, and a party, which is called an ininja, is organised for the purpose.”[66] We hear of similar councils from various parts of the Australian continent. In his description of the aborigines of New South Wales, Dr. Fraser states, “The Australian council of old and experienced men—this aboriginal senate and witenagemot—has the power to decree punishment for tribal offences.” The chiefs sit as magistrates to decide all cases which are brought before them, such as the divulging of sacred things, speaking to a mother-in-law, the adultery of a wife; and there is even a tribal executioner. At the same time, many grievances are arranged without the intervention of the chiefs; for instance, if a man has been found stealing from his neighbour, or two men quarrel about a woman, a fight ensues, the one or the other gets his head broken, and there the matter ends.[67] The Narrinyeri have a judgment council of the elders of the clan, called tendi, which is presided over by the chief of the clan; and when any member of the tendi dies, the surviving members select a suitable man from the clan to succeed him. “All offenders are brought to this tribunal for trial. In cases of the slaying by a person or persons of one clan of the member of another clan in time of peace, the fellow-clansmen of the murdered man will send to the friends of the murderer and invite them to bring him to trial before the united tendies. If, after full inquiry, he is found to have committed the crime, he will be punished according to the degree of guilt.”[68] Among another Australian tribe, the Gournditch-mara, again, the headman, whose office was hereditary, “settled all quarrels and disputes in the tribe. When he had heard both sides, and had given his decision in a matter, no one ever disputed it.”[69]
[66] Spencer and Gillen, op. cit. p. 15.