CHAPTER XIV. Preliminary Remarks--Homicide in General

PRELIMINARY REMARKS--HOMICIDE IN GENERAL

WE have discussed the general nature of those phenomena which have a tendency to evoke moral blame or moral praise. We have seen that moral judgments are passed on conduct and character, and we have seen why this is the case. It now remains for us to examine the particular modes of conduct which are subject to moral valuation, and to consider how these modes of conduct are judged of by different peoples and in different ages.

If carried out in every detail such an investigation could never come to an end. Among other things, it would have to take into account all customs existing among the various races of men, since every custom constitutes a moral rule. And the impossibility of any such undertaking becomes apparent when we consider the extent to which the conduct of man, and especially of savage man, is hampered by custom. Among the Wanika, for instance, "if a man dares to improve the style of his hut, to make a larger doorway than is customary; if he should wear a finer or different style of dress to that of his fellows, he is instantly fined." If, during the performance of a ceremony, the ancestors of an Australian native were in the habit of painting a white line across the forehead, their descendant must do the same. Dr. Nansen's statement with reference to the Greenlanders, {328} that their communities had originally customs and fixed rules for every possible circumstance, is essentially true of many, if not all, of the lower races.

It is necessary, then, that we should restrict ourselves to the more important modes of conduct with which the moral consciousness of mankind is concerned. These modes of conduct may be conveniently divided into six groups. The first group includes such acts, forbearances, and omissions as directly concern the interests of other men, their life or bodily integrity, their freedom, honour, property, and so forth. The second includes such acts, forbearances, and omissions as chiefly concern a man's own welfare, such as suicide, temperance, asceticism. The third group, which partly coincides with, but partly differs from, both the first and the second, refers to the sexual relations of men. The fourth includes their conduct towards the lower animals; the fifth, their conduct towards dead persons; the sixth, their conduct towards beings, real or imaginary, that they regard as supernatural. We shall examine each of these groups separately, in the above order. And, not being content with a mere description of facts, we shall try to discover the principle which lies at the bottom of the moral judgment in each particular case.

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It is commonly maintained that the most sacred duty which we owe our fellow-creatures is to respect their lives. I venture to believe that this holds good not only among civilised nations, but among the lower races as well; and that, if a savage recognises that he has any moral obligations at all to his neighbours, he considers the taking of their lives to be a greater wrong than any other kind of injury inflicted upon them.

Among various uncivilised peoples, however, human life is said to be held very cheap.

The Australian Dieyerie, we are told, would for a mere trifle kill their dearest friend. In Fiji there is an "utter disregard of {329} the value of human life." A Masai will murder his friend or neighbour in a fight over a herd of captured cattle, and "live not a whit the less merrily afterwards." Among the Bachapins, a Bechuana tribe, murder "excites little sensation, excepting in the family of the person who has been murdered; and brings, it is said, no disgrace upon him who has committed it; nor uneasiness, excepting the fear of their revenge." The Oráons of Bengal "are ready to take life on very slight provocation," and Colonel Dalton doubts whether they see any moral guilt in it. Some of the Himalayan mountaineers are reported to put men to death merely for the satisfaction of seeing the blood flow and of marking the last struggles of the victim. Among the Pathans, on the north-western frontier of the Punjab, "there is hardly a man whose hands are unstained," and each person "counts up his murders."

On the other hand, there are uncivilised peoples among whom homicide or murder is said to be hardly known.

Among the Omahas, "before liquor was introduced there were no murders, even when men quarrelled." Captain Lyon could learn of no instances of manslaughter having ever occurred among the Eskimo of Igloolik. In Tutuila, of the Samoa group, according to Brenchley, there had been but one case of assassination in the course of twenty years. The Veddahs of Ceylon know of manslaughter only as a punishment. {330} The Bedouin of the Euphrates, says Mr. Blunt, "is essentially humane, and never takes life needlessly. If he has killed a man in war he rather conceals the fact than proclaims it aloud, while murder or even homicide is almost unknown among the tribes." Among the Bakwiri, in Cameroon, Zoller never heard of any person having killed a member of his own community. Murders, says Caillié, "are rare among the Bambaras, and never committed by the Mandingoes." Among the Wanika "wilful cold-blooded murders are almost unknown." Among the Basutos perfect safety is enjoyed "on roads where the traveller might have been robbed a hundred times over without the least hope of aid, and in houses where the doors and windows have neither bolts nor bars," and cases of murder are very rare.

In other instances homicide is expressly said to be regarded as wrong.

The Greenlanders described by Dr. Nansen hold it atrocious to kill a fellow-creature, except in some particular cases. The Dacotahs say that it is a great crime to take their fellow's life, unless in revenge, "because all have a right to live." In Tierra del Fuego homicide rarely occurs, as Mr. Bridges remarks, because of an inveterate custom according to which human life is held sacred: "le meurtrier est mis au ban de ses compatriotes; isolé de tous, il est fatalement condamné à périr de faim ou à tomber un jour sous les coups d'un groupe de justiciers improvisés." The Andaman Islanders condemn murder as y[=u]bda, or sin. The natives of Botany Bay, New {331} South Wales, though a trivial offence in their ideas justifies the murder of a man, "highly reprobate the crime when committed without what they esteem a just cause." According to Mr. Curr's experience, the Australian Black undoubtedly feels that murder is wrong, and its committal brings remorse; even after the perpetration of infanticide or massacres, though both are practised without disguise, those engaged in them are subject to remorse and low spirits for some time.

It is of particular importance in this connection to note that, in early civilisation, blood-revenge is regarded not as a private matter only, but as a duty, and that, where this custom does not prevail, the community punishes the murderer, frequently with death. We may without hesitation accept Professor Tylor's statement that "no known tribe, however low and ferocious, has ever admitted that men may kill one another indiscriminately." In every society--even where human life is, generally speaking, held in low estimation--custom prohibits homicide within a certain circle of men. But the radius of the circle varies greatly.

Savages carefully distinguish between an act of homicide committed within their own community and one where the victim is a stranger. Whilst the former is under ordinary circumstances disapproved of, the latter is in most cases allowed, and often regarded as praiseworthy. It is a very common notion in savage ethics that the chief virtue of a man is to be successful in war and to slay many enemies.

Among the Káfirs of the Hindu-Kush "killing strangers might or might not be considered inexpedient, but it would {332} hardly be considered a crime"; killing fellow-tribesmen, on the other hand, is looked upon in a very different light. The Koriaks do not regard murder as a great crime, unless it occur within their own tribe. The early Aleuts considered the killing of a companion a crime worthy of death, "but to kill an enemy was quite another thing." To an Aht Indian the murder of a man is no more than the killing of a dog, provided that the victim is not a member of his own tribe. According to Humboldt, the natives of Guiana "detest all who are not of their family, or their tribe; and hunt the Indians of a neighbouring tribe, who live at war with their own, as we hunt game." In the opinion of the Fuegians, "a stranger and an enemy are almost synonymous terms," hence they dare not go where they have no friends, and where they are unknown, as they would most likely be destroyed. The Australian Black nurtures an intense hatred of every male at least of his own race who is a stranger to him, and would never neglect to assassinate such a person at the earliest moment that he could do so without risk to himself. In Melanesia, also, a stranger as such was generally throughout the islands an enemy to be killed.

In Savage Island the slaying of a member of another tribe--that is, a potential enemy--"was a virtue rather than a crime." To a young Samoan it was the realisation of his highest ambition to be publicly thanked by the chiefs for killing a foe in mortal combat. "According to Fijian beliefs, men who have not slain any enemy are, in the other world, compelled to beat dirt with their clubs--the most degrading punishment the native mind can conceive--because they used their club to so little purpose; and in Futuna it was deemed no less necessary to have poured out blood on the field of battle in order to hold a part in the happy future life. In the Western islands of Torres Straits "it was a meritorious deed to kill foreigners either in fair fight {333} or by treachery, and honour and glory were attached to the bringing home of the skulls of the inhabitants of other islands slain in battle." In the Solomon Islands, New Guinea, and various parts of the Malay Archipelago, he who has collected the greatest number of human heads is honoured by his tribe as the bravest man; and some peoples do not allow a man to marry until he has cut off at least one human head. Among many of the North American Indians, again, he who can boast of the greatest number of scalps is the person most highly esteemed. Among the Seri Indians the highest virtue "is the shedding of alien blood; and their normal impulse on meeting an alien is to kill, unless deterred by fear." Among the Chukchi "it is held criminal to thieve or murder in the family or race to which a person belongs; but these crimes committed elsewhere are not only permitted, but held honourable and glorious." So, too, the Gallas consider it honourable to kill an alien, though criminal to kill a countryman.

At the same time there are, among the lower races, various instances in which the rule, "Thou shalt not kill," applies even to foreigners. Hospitality, as will be seen in a subsequent chapter, is a stringent duty in the savage world. Custom requires that the host should entertain and protect a stranger who comes as his guest, and by killing him the host would perpetrate an outrage hardly possible. Moreover, even in the case of intertribal relations, we must not conclude that what is allowed in war is also allowed in times of peace. The prohibition of homicide may extend beyond the tribal border, to {334} members of different tribes who for some reason or other are on friendly terms with each other. We must not suppose that a tribe of savages generally either lives in a state of complete isolation, or is always at odds with its neighbours. In Australia, for instance, one tribe of natives, as a rule, entertains amicable relations with one, two, or more other tribes. Among the Central Australian natives, say Messrs. Spencer and Gillen, "there is no such thing as one tribe being in a constant state of enmity with another"; on the contrary, where two tribes come into contact with one another on the border land of their respective territories, friendly feelings are maintained between the members of the two. Some uncivilised peoples are even said to have no wars. The Veddahs of Ceylon never make war upon each other. According to the reports of the oldest inhabitants of Umnak and Unalaska, the people there had never been engaged in war either among themselves or with their neighbours, except once with the natives of Alaska. To the Greenlanders described by Dr. Nansen war is "incomprehensible and repulsive, a thing for which their language has no word."

That savages to some extent recognise the existence of intertribal rights in times of peace is obvious from certain customs connected with their wars. Some South Sea Islanders and North American Indians consider it necessary for a party which is about to attack another to give notice beforehand of their intention, in order that their opponents may be prepared to meet them. The cessation of hostilities is often accompanied by the conclusion of a special treaty and by ceremonies calculated to make it binding. The Tahitians, for instance, wove a wreath of {335} green boughs furnished by each side, exchanged two young dogs, and, having also made a band of cloth together, offered the wreath and the band to the gods with imprecations on the side which should first violate so solemn a treaty of peace. Nor does savage custom always allow indiscriminate slaughter even in warfare. The inviolability of heralds is not infrequently recognised. Among the aborigines of New South Wales the tribal messenger known to be a herald by the red net which he wears round his forehead, passes in safety between and through hostile tribes; and among the North American Omahas "the bearer of a peace pipe was generally respected by the enemy, just as the bearer of a flag of truce is regarded by the laws of war among the so-called civilised nations." And many uncivilised races have made it a rule in war to spare the weak and helpless.

The Samoans considered it cowardly to kill a woman; and even in Fiji the "enlightened party" objected to the killing of women, urging that it is "just as cowardly to kill a woman as a baby." The Abipones, in their wars, "generally spared the unwarlike, and carried away innocent boys and girls unhurt." An old Spanish writer tells us of the Guanches of Gran Canaria that, "in their wars, they held it as base and mean to molest or injure the women and children of the enemy, considering them as weak and helpless, therefore improper objects of their resentment"; and similar views prevail among the Berbers (Shlu[h.]) of Southern Morocco, as also among the Algerian Kabyles and the Touareg. Though the Masai and Wa-kikuyu "are eternally at war to the knife with each other, there is a compact between them not to molest the womenfolk of either party." "The Masai," says Mr. Hinde, "never interfere with women in their raids, and the women cheer {336} loudly and encourage their relatives during the fight." Among the Latukas, though women are employed as spies and thus become exceedingly dangerous in war, there is nevertheless a general understanding that no woman shall be killed. The Basutos maintain that respect should be paid during war to women, children, and travellers, as also that those who surrender should be spared and open to ransom; and, though these rules are not invariably respected, the public voice always disapproves of their violation.

Sometimes custom even requires that the life of the captive shall be spared.

It is against Masai tradition to kill prisoners of war. Among the Kabyles "il faut que l'exaspération des partis soit extrême pour qu'un blessé ou un prisonnier soit mis à mort." The Touareg do not kill their prisoners after a fight. Among the Bedouins of the Euphrates "the person of the enemy is sacred when disarmed or dismounted; and prisoners are neither enslaved nor held to other ransom than their mares." "Captives," says Mr. Dorsey, "were not slain by the Omahas and Ponkas. When peace was declared the captives were sent home, if they wished to go. If not they could remain where they were, and were treated as if they were members of the tribe." Among the Wyandots prisoners of war were frequently adopted into the tribe. "The warrior taking the prisoner has the first right to adopt him. If no one claims the prisoner for this purpose, he is caused to run the gauntlet as a test of his courage. If at his trial he behaves manfully claimants are not wanting, but if he behaves disgracefully he is put to death."

Thus we notice even among uncivilised races very obvious traces of what is called "international law," if not as a rule, at least as an exception. On the other hand, the {337} readiness with which war is engaged in, not only in self-defence or out of revenge, but for the sake of gain, indicates how little regard is paid to human life outside the tribe. The Kandhs, for instance, maintain "that a state of war may be lawfully presumed against all tribes and nations with whom no express agreement to the contrary exists." And if a few savage peoples live in perpetual peace, it seems that the chief reason for this is not a higher standard of morality, but the absence of all inducements to war.

When we from the lower races pass to peoples more advanced in culture, we find that the social unit has grown larger, that the nation has taken the place of the tribe, and that the circle within which homicide is prohibited as a crime of the first order has been extended accordingly. But the old distinction between injuries committed against compatriots and harm done to foreigners remains. Even when the subject is not touched upon in the laws referring to homicide we may, from the general attitude of the people towards members of other nations, infer that public opinion is not very scrupulous as to the taking of their lives. How the Chinese looked upon the "red-haired barbarians," the "foreign devils," is well known from recent history. In former days, Japan's attitude towards her neighbours and the whole world was that of an enemy and not of a friend. The Vedic hymns are full of imprecations of misfortune upon men of another race. That among the ancient Teutons the lot of a stranger was not an enviable one is testified even by language; the German word elender has acquired its present meaning from the connotation of the older word which meant an "outlandish" man. The stranger as such--unless he belonged to a friendly, neighbouring tribe--had originally no legal rights at all; for his protection he was dependent on individual {338} hospitality, and hospitality was restricted by custom to three days only. According to the Swedish Westgöta-Lag, he who killed a foreigner had to pay no compensation to the dead man's relatives, nor was he outlawed, nor exiled. The Laws of King Ine let us understand in what light a stranger was looked upon:--"If a far-coming man, or a stranger, journey through a wood out of the highway, and neither shout nor blow his horn, he is to be held for a thief, either to be slain or redeemed." However, as commerce increased and the stranger was more often seen in Teutonic lands, royal protection was extended to him; and a consequence of this was that thenceforth he who killed the stranger had to pay a wergeld, part, or the whole, of which went to the king. In Greece, in early times, the "contemptible stranger" had no legal rights, and was protected only in case he was the guest of a citizen; and even later on, at Athens, whilst the intentional killing of a citizen was punished with death and confiscation of the murderer's property, the intentional killing of a non-citizen was punished only with exile. The Latin word hostis was originally used to denote a foreigner; and the saying of Plautus, that a man is a wolf to a man whom he does not know, was probably an echo of an old Roman proverb. Mommsen suggests that in ancient days the Romans did not punish the killing of a foreigner, unless he belonged to an allied nation; but already in the prehistoric period a change was introduced, the foreigner being placed under the protection of the State.

How little regard is felt for the lives of strangers also appears from the readiness with which war is waged on {339} foreign nations, combined with the estimation in which the successful warrior is held by his countrymen. The ancient Mexicans were never at a loss for an excuse to pick a quarrel with their neighbours, so as to be able to procure victims for sacrifices to their gods. "No profession was held in more esteem amongst them than the profession of arms. The deity of war was the most revered by them, and regarded as the chief protector of the nation." The Mayas not only wanted to increase their dominions by encroachments upon their neighbours' territory, but undertook raids with no other object than that of obtaining captives for sacrifice. Speaking of the wars of the ancient Egyptians, M. Amélineau observes, "Nous n'avons pas un seul mot dans la littérature égyptienne, même dans les uvres égypto-chrétiennes, qui nous fasse entendre le plus léger cri de réprobation pour la guerre et ses horreurs." Among the Hebrews the most cruel wars of extermination were expressly sanctioned by their religion. That an idolatrous people had no right to live was taken as a matter of course; but wars were also unscrupulously waged from worldly motives, and in their moral code there is no attempt to distinguish between just and unjust war. Among the Mohammedans it is likewise the unbeliever, not the foreigner as such, that is regarded as the most proper object of slaughter. Although there is no precept in the Koran which, taken with the context, justifies unprovoked war, the saying that "Paradise is under the shadow of swords" is popularly applied to all warfare against infidels. Among the Celts and Teutons a man's highest aspiration was to acquire military glory. The Scandinavians considered it a disgrace for a man to die {340} without having seen human blood flow; even the slaying of a tribesman they often regarded lightly when it had been done openly and bravely. In Greece, in ancient times at least, war was the normal relation between different states, and peace an exception, for which a special treaty was required; while to conquer and enslave barbarians was regarded as a right given to the Greeks by Nature. The whole statecraft of the early Republic of Rome was no doubt based upon similar principles; and in later days, also, the war policy of the Romans was certainly not conducted with that conscientiousness which was insisted upon by some of their writers.

However, the foreigner is not entirely, or under all circumstances, devoid of rights. Among the nations of archaic civilisation, as among the lower races, hospitality is a duty, and the life of a guest is as sacred as the life of any of the permanent members of the household. In various cases the commencement of international hostilities is preceded by special ceremonies, intended to justify acts which are not considered proper in times of peace. In ancient Mexico it was usual to send a formal challenge or declaration of war to the enemy, as it was held discreditable to attack a people unprepared for defence; and, according to the fecial law of the Romans, no war was just unless it was undertaken to reclaim property, or unless it was solemnly denounced and proclaimed beforehand. In some cases warfare is condemned, or a distinction is made between just and unjust war with reference to the purpose for which the war is waged. The Chinese philosophers were great advocates of peace. According to Lao-Tsze, a superior man uses weapons "only on the compulsion of necessity"; there is no calamity greater {341} than lightly engaging in war, and "he who has killed multitudes of men should weep for them with the bitterest grief." In the Indian poem, Mahabharata, needless warfare is condemned; it is said that the success which is obtained by negotiations is the best, and that the success which is secured by battle is the worst. Among the Hebrews the sect of the Essenes went so far in their reprobation of war that they would not manufacture any martial instruments whatever. Roman historians, even in the case of wars with barbarians, often discuss the sufficiency or insufficiency of the motives "with a conscientious severity a modern historian could hardly surpass." According to Cicero, a war, to be just, ought to be necessary, the sole object of war being to enable us to live undisturbed in peace. There are two modes of settling controversies, he says, one by discussion, the other by a resort to force. The first is proper to man, the second is proper to brutes, and ought never to be adopted except where the first is unavailable. Seneca regards war as a "glorious crime," comparable to murder:--"What is forbidden in private life is commanded by public ordinance. Actions which, committed by stealth, would meet with capital punishment, we praise because committed by soldiers. Men, by nature the mildest species of the animal race, are not ashamed to find delight in mutual slaughter, to wage wars, and to transmit them to be waged by their children, when even dumb animals and wild beasts live at peace with one another." History attests that the Romans, in their intercourse with other nations, did not act upon Cicero's and Seneca's lofty theories of international morality; as Plutarch observes, the two names "peace" and "war" are mostly used only as coins, to procure, not what is just, but what is expedient. Yet there seems to have been a general {342} feeling in Rome that the waging of a war required some justification. In declaring it, the Roman heralds called all the gods to witness that the people against whom it was declared had been unjust and neglectful of its obligations.

Even in war the killing of an enemy is, under certain circumstances, prohibited either by custom or by enlightened moral opinion. Among the ancient Nahuas, who never accepted a ransom for a prisoner of war, the person of an ambassador was at all events held sacred. In the 'Book of Rewards and Punishments,' which embodies popular Taouism, it is said, "Do not massacre the enemies who yield themselves, nor kill those who offer their submission." The Hebrews, whilst being commanded to "save alive nothing that breatheth" of the cities which the Lord had given them for an inheritance, were to deal differently with cities which were very far off from them: to kill only the men, and to take to themselves the women and the little ones. The Laws of Manu lay down very humane rules for a king who fights with his foes in battle:--"Let him not strike with weapons concealed in wood, nor with such as are barbed, poisoned, or the points of which are blazing with fire. Let him not strike one who in flight has climbed on an eminence, nor a eunuch, nor one who joins the palms of his hands in supplication, nor one who flees with flying hair, nor one who sits down, nor one who says 'I am thine'; nor one who sleeps, nor one who has lost his coat of mail, nor one who is naked, nor one who is disarmed, nor one who looks on without taking part in the fight, nor one who is fighting with another foe; nor one whose weapons are broken, nor one afflicted with sorrow, nor one who has been grievously wounded, nor one who is in fear, nor one who has turned to flight; but in all these cases let him remember the duty of honourable warriors." The Mahabharata contains expressions of {343} similar chivalrous sentiments in regard to enemies. A car-warrior should fight only with a car-warrior, a horse-man with a horse-man, a foot-soldier with a foot-soldier. "Always being led by consideration of fitness, willingness, bravery, and strength, one should strike another after having challenged him. None should strike another who is confiding or who is panic-striken. One fighting with another, one seeking refuge, one retreating, one whose weapon is broken, and one who is not clad in armour should never be struck. Charioteers, animals, men engaged in carrying weapons, those who play on drums and those who blow conchs should never be smitten." Among the Greeks, in the Homeric age, it was evidently regarded as a matter of course that, on the fall of a city, all the men were slain, and the women and children carried off as slaves; but in historic times such a treatment of a vanquished foe grew rarer, and seems, under ordinary circumstances, to have been disapproved of. The rulers of this land, says the messenger in the 'Heraclidæ,' do not approve of slaying enemies who have been taken alive in battle. In Rome the customs of war underwent a similar change. In ancient days the normal fate of a captive was death, in later times he was generally reduced to slavery; but many thousands of captives were condemned to the gladiatorial shows, and the vanquished general was commonly slain in the Mamertine prison. On the other hand, nations or armies that voluntarily submitted to Rome were habitually treated with great leniency. Cicero says:--"When we obtain the victory we must preserve those enemies who behaved without cruelty or inhumanity during the war; for example, our forefathers received, even as members of their state, the Tuscans, the Aequi, the Volscians, the Sabines, and the Hernici, but utterly destroyed Carthage and Numantia. . . . And, while we {344} are bound to exercise consideration toward those whom we have conquered by force, so those should be received into our protection who throw themselves upon the honour of our general, and lay down their arms, even though the battering rams should have struck their walls."