MOTIVES
Project Gutenberg EPUB3 edition
Westermarck, Edward
Whilst the law referring to self-defence has gradually become more liberal, the law referring to self-redress in the case of adultery has thus, generally speaking, become more severe. The reason for this is obvious. A husband who slays his unfaithful wife or her accomplice does not defend, but avenges himself; and it is to be expected that a society in which punishment has only just succeeded revenge should still admit, or tolerate, revenge in extreme cases. The privilege granted to the outraged husband is not the sole survival of the old system of self-redress lingering on under the new conditions. According to Kafir custom or law, the relatives of a murdered man become liable only to a very light fine if they kill the murderer.68 The ancient Teutons, at a time when their laws already prohibited private revenge, did not look upon an avenger of blood in the same light as an ordinary manslayer;69 and even the Church recognised the distinction.70 Some of the ancient Swedish laws entirely excused homicide committed in revenge immediately after the crime.71 According to the Östgöta-Lag, an incendiary taken in flagrancy might be at once burnt in the fire,72 and ancient Norwegian law permitted the slaying of a thief caught in the act.73 In the Laws of Ine there is an indication that a thief’s fate was at the discretion of his captor,74 and a law of Æthelstan implies that the natural and proper course as to thieves was to kill them.75 In the Laws of King Wihtræd it is said, “If any one slay a layman while thieving; let him lie without ‘wergeld.’”76 So also, according to Javanese
law, if a thief be caught in the act it is lawful to put him to death.77 For our present purpose it is important to note that all such cases imply a recognition of the principle that an act committed on extreme provocation requires special consideration. To declare that an adulterer or adulteress caught in flagrancy, or a manifest thief, may be slain with impunity, is a concession to human passions, which are naturally more easily aroused by the sight of an act than by the mere knowledge of its commission. It was for a similar reason that the Law of the Twelve Tables punished furtum manifestum much more heavily than furtum nec manifestum;78 and that the Laws of Alfred imposed death as the penalty for fighting in the King’s hall if the offender was taken in the act, whereas he was allowed to pay for himself if he escaped and was subsequently apprehended.79
The difference between an injury which a person inflicts deliberately, in cold blood, and one which he inflicts in the heat of the moment, under the disturbance of great excitement caused by a wrong done to himself, has been widely recognised. There are instances reported of savages who distinguish between murder and manslaughter. And the laws of all civilised nations agree in regarding, on certain conditions, passion aroused by provocation as a mitigating circumstance at the commission of a crime.
The Australian Narrinyeri, as we have seen, have a tribunal, called tendi, consisting of the elders of the clan, to which all offenders are brought for trial. “In case 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. If it were a case of murder, with malice aforethought, he would be handed over to his own clan to be put to death by spearing. If it should be what we call manslaughter, he would receive a good thrashing, or be banished from his clan, or compelled to go to his mother’s relations.”80 In the Pelew Islands, if two natives are quarrelling, and the one says to the other, “Your wife is bad,” the insulted party is entitled to chastise the provoker with a stone, and is not held liable even if the latter should die in consequence.81 The Eastern Central Africans “are aware of the difference between murder and homicide,” even though the punishment of the two crimes is often the same.82 Among the Kandhs only slight compensation is awarded “for wounds, however serious, given under circumstances of extreme provocation.”83 “Valdeyak, or manslaughter,” says Georgi, “is not capital among the Tungusians, when it has been occasioned by some antecedent quarrel.
The slayer is however whipped, and obliged to maintain the family of the deceased: he undergoes no reproaches on account of the affair; but on the contrary is considered as a brave and courageous man for it.”84
Among the ancient Peruvians, “when one killed another in a quarrel, the first thing enquired into was, who had been the aggressor; if the dead man, then the punishment was slight, at the will of the Inga; but if the surviver had given the provocation, his penalty was death, or at least perpetual banishment to the Andes, there to work in the Inga’s fields of corn, which was like sending him to the galeys. A murderer was immediately publickly put to death, tho’ he were a man of quality.”85 Among the Mayas of Yucatan and Nicaragua, in case of great provocation or absence of malice, homicide was atoned by the payment of a fine.86
From certain passages in the Mosaic law the conclusion has been drawn that the ancient Hebrews did not consider it obligatory to inflict death upon him who had killed his neighbour in a fit of passion.87 It is said that a man shall be put to death if he “come presumptuously upon his neighbour, to slay him with guile,”88 or if he “hate his neighbour, and lie in wait for him, and rise up against him, and smite him mortally that he die.”89 On the other hand, he shall be allowed a resort to a city of refuge if “he lie not in wait,”90 or if he thrust his neighbour “suddenly without enmity.”91
Professor Leist suggests that in ancient Greece, at a time when blood-revenge was a sacred duty in the case of premeditated murder, homicide committed without premeditation could be forgiven by the avenger of blood.92 Plato, in his ‘Laws,’ draws a distinction between him “who treasures up his anger and avenges himself, not immediately and at the moment, but with insidious design, and after an interval,” and him “who does not treasure up his anger, and takes vengeance on the instant, and without malice prepense.” The deed of the latter, though not involuntary, “approaches to the involuntary,” and should therefore be punished less severely than the crime perpetrated by him who has stored up his anger.93 Aristotle, also, whilst denying that “acts done from anger or from desire are involuntary,”94 maintains that “assaults committed in anger, are rightly decided not to be of malice aforethought, for they do not originate in the volition of the man who has been angered, but rather in that of the man who so angered him.”95 And he adds that “everyone will admit that he who does a disgraceful act, being at the same time free from desire, or at any rate feeling desire but slightly, is more to be blamed than is he who does such an act under the influence of a strong desire; and that he who, when not in a passion, smites his neighbour, is more to be blamed than is he who does so when in a passion.”96 Cicero likewise points out that “in every species of injustice it is a very material question whether it is committed through some agitation of passion, which commonly is short-lived and
temporary, or from deliberate, prepense, malice; for those things which proceed from a short, sudden fit, are of slighter moment than those which are inflicted by forethought and preparation.”97
Source notes
65 Günther, Idee der Wiedervergeltung, iii. 233 sqq.
66Code Pénal, art. 324.
67 Foinitzki, loc. cit. p. 548.
68 Maclean, op. cit. p. 143. Cf., however, ibid. p. 110.
69 Wilda, op. cit. p. 562. Stemann, op. cit. p. 582 sq.
70 Wilda, op. cit. pp. 180, 565. Labbe-Mansi, Sacrorum Conciliorum collectio, xii. 289.
71 Nordström, op. cit. ii. 414 sq.
72Ibid. ii. 416.
73 Wilda, op. cit. p. 889.
74Laws of Ine, 12. Cf. Stephen, op. cit. i. 62.
75Laws of Æthelstan, iv. 4.
76Laws of Wihtræd, 25.
77 Crawfurd, op. cit. iii. 115.
78Institutiones, iv. 1. 5.
79Laws of Alfred, ii. 7.
80 Taplin, ‘Narrinyeri,’ in Woods, Native Tribes of South Australia, p. 34 sq.
81 Kubary, ‘Die Palau-Inseln,’ in Journal des Museum Godeffroy, iv. 43 sq.
82 Macdonald, Africana, i. 172.
83 Macpherson, op. cit. p. 82.
84 Georgi, Russia, iii. 83. Cf. also Turner, ‘Ethnology of the Ungava District,’ in Ann. Rep. Bur. Ethn. xi. 186.
85 Herrera, op. cit. iv. 337 sq.
86 Bancroft, Native Races of the Pacific States, ii. 658.
87 Goitein, Das Vergeltungsprincip im biblischen und taltmudischen Strafrecht, p. 33 sqq.
88Exodus, xxi. 14.
89Deuteronomy, xix. 11 sq.
90Exodus, xxi. 13.
91Numbers, xxxv. 22, 25.
92 Leist, Græco-italische Rechtsgeschichte, pp. 325, 352.
93 Plato, Leges, ix. 867.
94 Aristotle, Ethica Nicomachea, iii. 1. 21.
95Ibid. v. 8. 9.