CHAPTER XXII. Bodily Injuries

BODILY INJURIES

CLOSELY related to the right to life is the right to bodily integrity. Indeed, homicide is, generally speaking, the highest form of bodily injury which can, in the nature of things, be inflicted, although there are some forms of ill-treatment which are more terrible than death itself.

In the case of bodily injuries the magnitude of the offence is, other things being equal, proportionate to the harm inflicted. At the lower stages of civilisation we meet with the principle of an eye for an eye and a tooth for a tooth, or the offender has to pay an adequate compensation for the injury. It is said in the Laws of Manu that, if a blow is struck against men in order to give them pain, the judge shall inflict a fine in proportion to the amount of pain caused. According to Muhammedan law, retaliation for intentional wounds and mutilations is allowed, but a fine may be accepted instead. The fine for depriving a man of any of his five senses, or dangerously wounding him, or grievously disfiguring him for life, or cutting off a member that is single, as the {512} nose, is the whole price of blood; the fine for a member of which there are two and not more, as a hand or a foot, is half the price of blood; the fine for a member of which there are ten, as a finger or a toe, is a tenth of the price of blood. The scale of fines for bodily injuries contained in many of the early Teutonic law-books is minute to a degree. According to various texts of the Salic law, 100 solidi--that is, a moiety of the wergeld--must be paid for depriving a man of a hand, foot, eye, or the nose; the thumb and great toe were valued at 50 solidi; the second finger with which the bow was drawn, at 35. With respect to other acts of violence, the fine varied according to several circumstances, as, whether the blow was given with a stick or with closed fist, whether the brain was laid bare, whether certain bones were obtruded and how much, whether blood flowed from the wound on the ground, and so forth. In the Anglo-Saxon codes almost every part and particle of the body, every tooth, toe, and nail, had its price. According to the Laws of Aethelbirht, for instance, twenty shillings were paid for striking off a thumb, three for a thumb nail, eight for the forefinger, eleven for the little finger. In early Celtic law different amounts of injury were taxed with a similar affected precision. Nothing can better give us an idea of the business-like manner in which the whole subject was treated than the Irish law against castration. If the injured persons be people to whom the organs extirpated are of no use, "such as a decrepit old man or a man in orders, there is nothing due to them for the loss of them, but body-fine according to the severity of the wound." {513} After this one is almost surprised to read in the ancient laws of Ireland that, when a person had once been maimed, and received part or all of his body-fine, no subsequent wrong-doer could insist that the injured person should be rated as a damaged article.

However, the degree of the offence depends not only on the suffering inflicted, but on the station of the parties concerned; and in some cases the infliction of pain is held allowable or even a duty.

By using violence against their parents, children grossly offend against the duty of filial regard and submissiveness. It is said in the Laws of ammurabi, that a man who has struck his father shall lose his hands. According to Exodus, "he that smiteth his father, or his mother, shall be surely put to death." In Corea the man who strikes his father is beheaded. On the other hand, parents are allowed to inflict corporal punishment on their children; but this is not the case everywhere--indeed, among many of the lower races children are never, or hardly ever, subject to such punishment. Among the Australian Dieyerie the children are never beaten, and should any woman violate this law, she is in turn beaten by her husband. The Efatese, says Mr. Macdonald, "are shocked to see Europeans correcting their children; I never saw an Efatese beating a child." The Eskimo {514} visited by Mr. Hall never inflict physical chastisement upon the children; "if a child does wrong--for instance, if it becomes enraged, the mother says nothing to it till it becomes calm. Then she talks to it, and with good effect." Among the Tehuelches of Patagonia "the children are indulged in every way, ride the best horses, and are not corrected for any misbehaviour." Among the Gaika tribe of the Kafirs, again, parents may inflict corporal punishment on their children, but are fined for causing permanent injuries to their persons, such as the loss of an eye or a tooth.

The power which the husband possesses over his wife much more commonly implies the right of inflicting pain on her than of punishing her capitally; but even among savages and barbarians the former right is not universally granted to him. The Pelew Islanders do not allow a husband to beat his wife. Among various Eskimo tribes the women are rarely, if ever, beaten. Among the Central Eskimo the husband "is not allowed to maltreat or punish his wife; if he does, she may leave him at any time, and the wife's mother can always command a divorce." Many, or most, of the North American Indians consider it disgraceful for a husband to beat his wife. Among the Kalmucks a man has no right to raise his hand against a woman. Among the Madis women are never beaten. Among the Ondonga a man is not allowed to chastise his wife. Among the Gaika tribe of the Kafirs "a husband may beat his wife for misconduct; but if he should strike out her eye or a tooth, or otherwise maim her, he is fined at the discretion of the Chief." {515} According to the native code of Malacca, "a man may beat his wife, but not as he would chastise a slave, and not till blood flows"; if he should do so, he is fined. According to Muhammedan law, a husband may chastise an obstinate wife, but he must not cause her great suffering, nor inflict on her a wound. We read in the Laws of Manu:--"A wife, a son, a slave, a pupil, and a younger brother of the full blood, who have committed faults, may be beaten with a rope or a split bamboo, but on the back part of the body only, never on a noble part; he who strikes them otherwise will incur the same guilt as a thief." In Europe the idea expressed by the ancient Roman that "he who beats his wife or children lays hands on that which is most sacred and holy," was shared neither by the ancient Teutons nor by mediæval legislators. According to the Jydske Lov, a husband was allowed to chastise his wife with a stick or rod, though not with a weapon; but he had to take care not to break any limb of her body. In the Coutumes du Beauvoisis it is said that a man may beat his wife if she belies or curses him, or disobeys his "reasonable" commands, or for some other similar reason, though he must not kill or maim her. Among Russian and South Slavonian peasants public opinion still permits the husband to inflict corporal punishment on his wife. In Russia "the bridegroom, while he is leading his bride to her future home, gives her from time to time light blows from a whip, saying at each stroke: 'Forget the manners of thine own {516} family, and learn those of mine.' As soon as they have entered their bedroom, the husband says to his wife, 'Take off my boots.' The wife immediately obeys her husband's orders, and, taking them off, finds in one of them a whip, symbol of his authority over her person. This authority implies the right of the husband to control the behaviour of his wife, and to correct her every time he thinks fit, not only by words, but also by blows. The opinion which a Russian writer of the sixteenth century . . . expresses as to the propriety of personal chastisement, and even as to its beneficial effects on the health, is still shared by the country people. . . . The customary Court seems to admit the use of such disciplinary proceedings by not interfering in the personal relations of husband and wife. 'Never judge the quarrel of husband and wife,' is a common saying, scrupulously observed by the village tribunals, which refuse to hear any complaint on the part of the aggrieved woman, at least so long as the punishment has not been of such a nature as to endanger life or limb."

It seems that, wherever slavery exists, the master has a right to inflict corporal punishment on his slave, even though he be forbidden to deprive him of any of his limbs. According to the Chinese Penal Code, the master, or relations of the master of a guilty slave, may chastise such slave in any degree short of occasioning his death, without being liable to any punishment; whereas "all slaves who are guilty of designedly striking their masters, shall, without making any distinction between principals and accessories, be beheaded." Among the Hebrews, if a man by blows destroyed an eye or a tooth, or any other member belonging to his man-servant or maid-servant, he was bound to let the injured person go free, though full retribution was legally ordained for bodily injuries done to free Israelites. In the North American Slave States and {517} in the colonies of all European Powers the master could inflict any number of blows upon his slave, but if he mutilated him he was fined or subjected to a very moderate term of imprisonment.

The maltreatment of another person's slave has, even by civilised legislators, been regarded as an injury done to the master rather than to the slave. According to Muhammedan law, the fine imposed on a free person for injuring a slave varies according to the value of the slave. In the Institutes of Justinian it is said that, "if a man were to flog another man's slave in a cruel manner, an action would, in this case, lie against him," but that the master has no right of action against a person who has struck the slave with his fist. In the Negro Act of 1740 it was prescribed that, if a slave was beaten by any person who had not sufficient cause or lawful authority for so doing, and if he or she was maimed or disabled by such beating from performing his or her work, the offender should pay to the owner of the slave "the sum of 15 shillings current money per diem, for every day of his lost time, and also the charge of the cure of such slave." But if the beating of the slave caused no loss of service to his master, the offender was not, as a rule, punished by law. A decision of the Supreme Court of Maryland established expressly the law to be, in that State, that trespass would not lie by a master for an assault and battery on his slave, unless it were attended with a loss of service. If, on the other {518} hand, the offender was a slave and his victim a white man, the injury was regarded in a very different light. We read in an act of Georgia passed in 1770:--"If any slave shall presume to strike any white person, such slave . . . shall . . . for the second offence suffer death: But in case any such slave shall grievously wound, maim, or bruise any white person, though it shall be only the first offence, such slave shall suffer death." And to offer violence, to strike, attempt to strike, struggle with, or resist any white person, was, even by the latest meliorating laws issued in the British Colonies, declared to be a crime in a slave which, if the white person had been wounded or hurt, and in some islands even without that condition, should subject the offender to death, dismemberment, or other severe penalties. We read in one of the codes of ancient Wales:--"If a freeman strike a bondman, let him pay him twelve pence. . . . If a bondman strike any freeman, it is just to cut off his right hand, or his right foot." According to Chinese law, a freeman striking a slave shall "be punished less severely by one degree than in the ordinary cases of the same offence"; whereas "a slave striking a freeman shall, in proportion to the consequences, be punished one degree more severely than is by law provided in similar cases between equals."

Very frequently the penalties or fines for bodily injuries are influenced by the class or rank of the parties even when both of them are freemen. Among the Marea, whilst a commoner who wounds another commoner simply pays him compensation for the hurt, a commoner who wounds a nobleman must abandon to him all his property and become his slave. At Zimmé the fines for assaults "vary greatly, according to the rank of the party complaining." {519} Among the Ossetes the limbs of a noble are rated at twice as much as the limbs of an ordinary freeman. The Laws of ammurabi contain the following provisions:--"If a man has caused the loss of a gentleman's eye, his eye one shall cause to be lost. If he has shattered a gentleman's limb, one shall shatter his limb. If he has caused a poor man to lose his eye or shattered a poor man's limb, he shall pay one mina of silver. If a man has made the tooth of a man that is his equal to fall out, one shall make his tooth fall out. If he has made the tooth of a poor man to fall out, he shall pay one-third of a mina of silver," According to the Laws of Manu, if a man of a low caste does hurt to a man of any of the three highest castes, the offending member shall be cut off; and he who intentionally strikes a Brâhmana in anger, even if it were only with a blade of grass, "will be born during twenty-one existences in the wombs of such beings where men are born in punishment of their sins." In early Teutonic and Celtic codes we meet with the principle that the compensation by which a bodily injury is to be atoned for varies according to the rank of the parties concerned.

We have noticed that men in their estimation of human life, particularly at the earlier stages of culture, discriminate between fellow-tribesmen or compatriots and aliens. A similar distinction is made with reference to other bodily injuries. It reaches its pitch in the sufferings inflicted on vanquished enemies. The treatment to which the Kamchadales subjected their male prisoners of war included "burning, hewing them to pieces, tearing their entrails out when alive, and hanging them by the feet." Some of the Dacotahs, when they had taken a captive, "secured him {520} to a stake and allowed their women to torture him by mutilating him previous to killing him"; and of many other North American Indians it is said that they "devote their captives to death, with the most agonising tortures." The wars of the Society Islanders, Ellis observes, were most merciless and destructive; "invention itself was tortured to find out new modes of inflicting suffering." On the other hand, there are not wanting instances of savage warfare being conducted on more humane principles. Dobrizhoffer tells us that "cruelty towards captives and enemies is abhorred by the Abipones, who never torture the dying"; and among the Somals no injury is done to enemies who have been severely wounded in the battle. Civilised nations maintain that, in time of war, no greater injuries should be inflicted upon the enemy than are necessary to obtain the end of the war.

The right to bodily integrity is influenced by religious differences as well as national. According to Muhammedan law, the compensation for injuries inflicted on a Jew or a Christian is a third, for those inflicted on a Parsee only a fifteenth, of the sum to be paid for similar injuries done to a Moslem. A mediæval Spanish law prescribes that a Christian who beats a Jew shall pay four maravedis, but that a Jew who beats a Christian shall pay ten.

The right to bodily integrity may be forfeited by the commission of a crime. As has been already noticed, physical injuries are frequently resented according to the law of like for like; and in other cases, also, the infliction {521} of corporal suffering--by mutilation, scourging, and so forth--is a common penalty. Amputation or mutilation of the offending member has particularly been in vogue among so-called peoples of culture. It is often **mentioned in the Code of ammurabi and in the Laws of Manu. It occurred among the Greeks, Romans, and Teutons. Mediæval codes contain numerous instances of it. The Laws of Alfred prescribe that a male theow who commits a rape upon a female theow shall be emasculated; and in a later age Bracton reserves the same punishment for the deflowerer of a virgin, with the addition that the offender shall also lose his eyes, "on account of his looking at the beauty, for which he coveted possession of the virgin." According to a law of Cnut, an adulteress shall have her nose and ears cut off. Aethelstan enjoined that an illicit coiner should lose his right hand; whereas in later times this punishment was restricted to those who struck anybody in the king's presence or in his court. By the statute law of Scotland the punishment of forgery, or falsifying of writings, was at first the amputation of the hand, afterwards dismembering of it, joined with other pains. In some countries a perjurer lost the offending fingers or his right hand, in others he had his tongue cut {522} off or pierced with a hot iron; and in England, before the Conquest, a man might lose his tongue by bringing a false and scandalous accusation. In the seventeenth century a person in Scotland was sentenced to have his tongue bored because he had libelled the Lord Justice General. In German and Austrian codes we find, even in the eighteenth century, traces of the principle of punishing the offending member; and in France the last survival of it--the amputation of the right hand of a parricide before his execution--disappeared only in 1832. Growing refinement of feeling has made people averse from the use of surgery in the administration of justice; and in most European countries grown-up offenders are no longer liable to corporal punishment of any kind.

Corporal punishment has generally been, by preference, a punishment for poor and common people or slaves. Blows and abusive language, says Plutarch, seem to be more fitting for slaves than the freeborn. According to the religious law of the Hindus, a Brâhmana shall not suffer corporal punishment for any offence. Among the Hebrews and Muhammedans, among the Romans and in the Middle Ages, the punishment of mutilation could generally be commuted to a fine. For a long period, in {523} Christian Europe, as well as in Pagan Rome during the Empire, the punishment was more savage in proportion as the delinquent was more helpless. "En crimes," says Loysel, "les villains sont plus griévement punis en leurs corps que les nobles. . . . Et où le vilain perdroit la vie, ou un membre de son corps, le noble perdra l'honneur, et réponse en cour." Indeed, whilst the slave incurred the penalty of mutilation for the most trifling offence, the noble might be exempted from corporal punishment of any kind. In a similar manner the social status of a person has influenced his right to bodily integrity with reference to judicial torture. According to the Chinese Penal Code, "it shall not, in any tribunal of government, be permitted to put the question by torture to those who belong to any of the eight privileged classes, in consideration of the respect due to their character." In Rome, under the Republic, torture was exclusively confined to the slaves. In mediæval Christendom it was made use of to an extent and with a cold-blooded ferocity unknown to any heathen nation, and in cases of heresy and treason it was applied to every class of the community. But the tortures inflicted on the nobles and the clergy were lighter than in the case of ordinary laymen, and proof of a more decided character was required to justify their being exposed to torment. "Noble persons and persons of quality," says Dumoulin, "cannot so easily be subjected to torture as persons who are of mean and plebeian rank." Guazzini, an eminent Italian jurisconsult and a recognised expositor of the law of torture in the days of its highest ascendency and ripest maturity, observes that the torment inflicted {524} on a person shall be proportionate to his age, his physical constitution, his mental habits, and his social status; and he adds that bishops and others in high civil dignity are exempt from torture even under strong presumptions of guilt.

The moral notions regarding the infliction of bodily injuries require little comment. They are based on the principle of sympathetic resentment, modified by the ascription of particular rights to some and particular duties to others, on account of the relation in which the parties stand to each other; and they follow the same rules as the ideas concerning homicide, to the exclusion, of course, of all such considerations as result from fear of the slain man's ghost or from the religious horror of taking life. One point, however, calls for special attention. The forcible interference with another person's body not only causes physical pain but commonly entails disgrace upon the sufferer. This largely accounts for the fact that a person's right to bodily integrity varies so much according to his social standing. Even among the lower races we meet with the notions that an act of bodily violence involves a gross insult, and that corporal punishment disgraces the criminal more than any other form of penalty. According to the Malay Code, "the persons who may be put to death without the previous knowledge of the king or nobles, are an adulterer, a person guilty of treason, a thief who cannot otherwise be apprehended, and a person who offers another a grievous affront, such as a blow over the face." Among the Maoris a blow with the fist would lead to a combat with arms. The Thlinkets consider corporal punishment to {525} be the greatest indignity to which a freeman can be subjected, hence they never inflict it. And civilised nations who are ready to punish certain criminals with death, hold whipping to be a punishment too infamous to be employed.