The origin and development of the moral ideas

The regulations to which the practice of revenge is subject, help us to understand the transition from revenge to punishment, and the establishment of a special judicial authority. As long as retaliation is in the hands of private individuals, there is no guarantee, on the one hand, that the offender will have to suffer, on the other hand, that the act of retaliation will be sufficiently discriminate.

The injured party may be too weak, or otherwise unable, to avenge himself. His readiest course, then, is to appeal to the chief for help. The chief, on his part, has an interest in interfering—he may of course expect a handsome reward for his assistance,83—and, in so far as the community at large wishes that the offender shall suffer, the chief may even be bound to interfere. Thus in the Sandwich Islands, the family or the friends of an injured person—who in cases of assault or murder were by common consent justified in taking revenge—used to appeal to the chief of the district or to the king, when they were too weak to attack the offender themselves.84 Among the Wanyoro, according to Emin Pasha, should the murderer escape, the nearest relatives of the murdered man apply to the chief of the tribe to procure the punishment of the culprit.85 The Indians of Brazil, when offended, sometimes bring their cause before the chief; but they do it seldom, since they consider it disgraceful for a man not to be able to avenge himself.86 The judicial authority granted to the Basuto chief “also insures justice to foreigners, and to individuals who, having no relations, are deprived of their natural defenders and avengers.”87 In ancient Greece, in early times, special care was taken by the State for the protection of the weak and helpless, who otherwise had been unavenged.88 In the Middle Ages, the poor and the weak were placed under the King’s protection; the intervention of royal justice, as Du Boys observes, “apparaissait comme un bienfait pour les faibles et un secours pour les

Whilst resentment on behalf of injuries inflicted upon persons who are unable to avenge themselves has thus, to some extent, contributed towards the establishment of a central judicial and executive authority, the sympathy naturally felt for the object of an improper and immoderate revenge undoubtedly tended to bring about a similar result. The same feeling which checked indiscriminate revenge by establishing the rule of strict equivalence, restricted it once more, and in a more effective way, by referring the case to a judge who was less partial, and more discriminate, than the sufferer himself or his friends. Speaking of the feuds of the Teutons, Kemble remarks, “Setting aside the loss to the whole community which may arise from private feud, the moral sense of men may be shocked by its results: an individual’s own estimate of the satisfaction necessary to atone for the injury done to him, may lead to the commission of a wrong on his part, greater than any he hath suffered; nor can the strict rule of ‘an eye for an eye, and a tooth for a tooth,’ be applied where the exaction of the penalty depends upon the measure of force between appellant and defender.”90 In the Island of Bali the judge steps in between the prosecutor and the person whom he pursues, “so as to restrain the indiscriminate animosity of the one, and to determine the criminality of the other.”91 Crawfurd, in his account of native customs in the Malay Archipelago, says that “the law even expressly interdicts all interference when there appears a character of fairness in the quarrel.”92 A Karen, we are told,

always thinks himself right in taking the law into his own hands, this being the custom of the country, and “he is never interfered with, unless he is guilty of some act contrary to Karen ideas of propriety, when the elders and the villagers interfere and exercise a check upon him.”93 Among the Basutos the authority of the chief is stated to be “sufficiently respected to protect criminated persons, until their cases have been lawfully examined.”94 Among the Californian Gallinomero the avenger of blood has his option between money and the murderer’s life; “but he does not seem to be allowed to wreak on him a personal and irresponsible vengeance,” the chief taking the criminal and executing the punishment.95

Besides the desire that the offender shall suffer and the desire that his suffering shall correspond to his guilt, there is a third factor of importance which has contributed to the substitution of punishment for revenge and to the rise of a judicial organisation. For every society it is a matter of great consequence that there should be peace between its various members. Though the system of revenge helps to keep down crime,96 it also has a tendency to cause disturbance and destruction. Any act of vengeance which goes beyond the limits fixed by custom is apt to call forth retaliation in return. Among the Ossetes, says Baron von Haxthausen, “if the retaliation does not exceed the original injury the affair terminates; but if the wound given is greater than the one received, the feud begins afresh from the other side.”97 The custom of blood-revenge certainly does not imply that the avenger of unjustifiable homicide may himself be a proper object of retaliation;98 but in the absence of a tribunal it may be no easy thing to decide the question of guilt, and, besides, the dictate of custom may be overruled by passion. As a matter of fact, the blood-feud often consists of a whole series of murders, the revenge itself calling forth a new act of redress, and so on, until the state or hostility may become more or less permanent.99 In the long run this will prove injurious both to the families implicated in the feud and to society as a whole, and some method of putting a stop to the feud will readily be adopted.

One such method is to substitute the payment of blood-money for revenge; another is to submit the cause to an authority invested with judicatory power. Casalis tells us that the Basutos are often heard to say, “If we were to revenge ourselves, the town or community would soon be dispersed”; and he adds that the instinctive fear of the disorders that might arise from the exercise of individual law has induced them to allow the chief of the tribe a certain right over the person of every member of the community.100

As may be expected, it is only by slow degrees that revenge has yielded to punishment, and the private avenger has been succeeded by the judge and the public executioner of his sentence. Among many savages the chief is said to have nothing whatever to do with jurisdiction.101 Among others he acts merely as an adviser, or is appealed to as an arbiter;102 or the injured party may choose between avenging himself and appealing to the chief for redress;103 or the judicial power with which the chief is invested is stated to be more nominal than real.104 It is also interesting to note that in several cases the injured party or the accuser acts as executioner, but not as judge.