in the name of the Father, Son, and Holy Ghost, are punished with everlasting punishment in eternal fire, because though they have no actual sin of their own, yet they carry along with them the condemnation of original sin from their first conception and birth." And in the Lex Bajuwariorum this doctrine is expressly referred to in a paragraph which prescribes a daily compensation for children killed in the womb on account of the daily suffering of those children in hell.2 Subsequently, however, St. Fulgentius' dictum was called in question, and no less a person than Thomas Aquinas suggested the possibility of salvation for an infant who died before its birth. Apart from this, the doctrine that the life of an embryo is equally sacred with the life of an infant was so much opposed to popular feelings, that the law concerning feticide had to be altered. Modern legislation, though treating the fetus as a distinct being from the moment of its conception, punishes criminal abortion less severely than infanticide." And the very frequent occurrence of this crime is an evidence of the comparative indifference with which it is practically looked upon by large numbers of people in Christian countries.

CHAPTER XVIII

THE KILLING OF WOMEN, AND OF SLAVES

THE CRIMINALITY OF HOMICIDE INFLUENCED

BY DISTINCTIONS OF CLASS

AMONG many of the lower races a husband is said to possess the power of life and death over his wife; but what this actually means is not always obvious. It is quite probable that, in some cases, the husband may put his wife to death whenever he pleases, without having to fear any disagreeable consequences. In other instances he, by doing so, at all events exposes himself to the vengeance of her family. Among the Bangerang tribe of Victoria, for instance," he might ill-treat her, give her away, do as he liked with her, or kill her, and no one in the tribe interfered; though, had he proceeded to the last extremity, her death would have been avenged by her brothers or kindred." So, also, among the aborigines of North-WestCentral Queensland, "a wife has always her brothers' to look after her interests," and if a man kills his wife he has to deliver up one of his own sisters for his late wife's friends to put to death. We shall see in a subsequent chapter that many statements in which absolute marital power is ascribed to savage husbands are not to be interpreted too literally. I venture to to believe that the husband's so-called power of life and death is generally

1 Curr, Recollections of Squatting in Victoria, p. 248.

2 Roth, Ethnological Studies among the North-West-Central Queensland

་

Aborigines, p. 141. Cf. Fison and Howitt, Kamilaroi and Kurnai, p. 281 (Geawe-gal tribe).

restricted by custom to cases where the wife has committed some offence, and, especially, where she has been guilty of unfaithfulness.

The right of punishing the wife capitally, however, is by no means means universally granted to the husband in uncivilised communities. Among the Gaika tribe of the Kafirs, "if he puts her to death, he is punished as a murderer." 1 Among the Bakwiri he has to suffer death himself if he kills his wife; if she is unfaithful to him he is only permitted to beat her. From the information we possess of the lower races it does not seem to be the general rule that husbands punish their adulterous wives with death; but whether they have the right of doing so is a question seldom touched upon by our authorities.3 We shall see that savage custom often gives to the husband only very limited rights over his wife, and requires that he should treat her with respect.

Among various peoples of a higher type the husband has, under certain circumstances, had the right of punishing his wife capitally; but this seems to be nearly all that is involved in that "power of life and death" which he is said to have possessed over her. However, whilst custom or law forbade him to kill his wife without sufficient cause, such a deed was hardly looked upon with the same horror, or treated with the same severity, as the murder of a husband by his wife, owing to the former's superior position in the family. Among the Langobardi, according to the laws of King Rothar, a husband who killed his wife had to pay the same compensation as anybody else would have had to pay for taking her life, but if a wife killed her husband, she was put to death, and her property forfeited

1 Brownlee, in Maclean, Compendium of Kafir Laws and Customs, P. 117.

2 Schwarz, quoted by Post, Afrikanische Jurisprudenz, i. 401.

3 See Steinmetz, Ethnologische Studien zur ersten Entwicklung der Strafe, ii. 303.

4 Rein, Japan, p. 424. Hommel, Die semitischen Völker und Sprachen

i. 417 (Babylonians). Leist, Altarisches Jus Civile, i. 196, 275 (“Aryan” peoples). Wilda, Strafrecht der Germanen, p. 705; Nordström, Bidrag till den svenska samhälls-författningens historia, ii. 61 sq.; Weinhold, Altnordisches Leben, p. 250; Keyser, Efterladte Skrifter, ii. pt. ii. 28 sq. (Teutons).

to the family of the dead. In Russia, in the seventeenth century, whilst a husband who murdered his wife was, according to law, obnoxious to corporal punishment, a wife who murdered her husband was buried alive, with the head above the ground, and left to perish by hunger.2 According to English law, a woman who killed her husband was guilty of "petit treason," that is, murder in its most odious degree.3

Among many peoples the life of a woman is held cheaper than that of a man, independently of the relationship between the slayer and his victim. In Burma, if a woman was accidentally killed, less compensation had to be paid than for a man. A Burman explained this in the following words :-" A woman is worth less than a man in that way. A maidservant can be hired for less than a manservant, a daughter can claim less than a son. They cannot do so much work; they are not so strong. If they had been worth more, the law would have been the other way; of course they are worth less." 4 Among Muhammedans the price of blood for a woman is half the sum which is the price of blood for a free man. In ancient India the murder of a woman, unless she was with child, was in the eye of the law on a par with the murder of a Sûdra." According to Cambrian law, the galanas, or blood-price, of a woman was half the galanas of her brother. Among the Teutons the wergeld of a woman varied sometimes it was the same as that for a man, sometimes only half as much, but sometimes twice as much, or, if she was pregnant,

5

even more.1 These variations depended upon the different points of view from which the offence was looked upon. By herself she was worth less than a man, as a mother she was worth more ; and, quite apart from her value, the natural helplessness of her sex tended to aggravate the crime. Among modern savages and barbarians, also, the estimate of a woman's life is in some instances lower than that of a man's, in some equal to it, and in some higher. Among the Gallas the killing of a free man can be atoned for only by one thousand cattle, whereas fifty are deemed sufficient for the killing of a woman.7 On the other hand, among the Iroquois two hundred yards of wampum were paid for the murder of a woman, and only one hundred for that of a man. Among the Rejangs of Sumatra, whilst the compensation for murder is eighty dollars if the victim was an ordinary man or boy, it is one hundred and fifty dollars if the person murdered was a woman or girl." Among the Agar, a Dinka tribe, the murder of a man must be atoned for by a fine. of thirty cows, that of a woman by forty cows.10 Where wives are purchased, the killing of a woman involves the destruction of valuable property, and is dealt with accordingly.

8

As a husband often has "the power of life and death" over his wife, so we may expect to find, even more often,

1 Grimm, Deutsche

thümer, p. 404 sqq.

Rechtsalter

2 This point of view is very conspicuous in the Salic Law (Lex Salica [Herold's text], 28).

3 Wilda, op. cit. p. 571. Keyser, op. cit. ii. pt. ii. 29. Brunner, Deutsche Rechtsgeschichte, ii. 614 sq. Pardessus, Loi Salique, p. 662.

4 Post, Anfänge des Staats- und Rechtsleben, p. 192. Idem, Studien zur Entwicklungsgeschichte des Familienrechts, p. 119 sq. Gibbs, Tribes of Western Washington and Northwestern Oregon,' in Contributions to North American Ethnology, i. 190. Georgi, Russia, ii. 261; Vámbéry, Türkenvolk, p. 305 (Kirghiz). Decle,

Three Years in Savage Africa, p. 487 (Wakamba).

Schoolcraft, Indian Tribes of the United States, i. 277 (Creeks). Dorsey, 'Omaha Sociology,' in Ann. Rep. Bur. Ethn. iii. 370. Woodthorpe, in Jour. Anthr. Inst. xxvi. 21 (Shans).

6 Post, Studien zur Entwicklungsgeschichte des Familienrechts, p. 119 sq. 7 Paulitschke, Ethnographie NordostAfrikas, p. 263.

8 Loskiel, History of the Mission of the United Brethren among the Indians in North America, i. 16.

9 Marsden, History of Sumatra,