Speaking of the native tribes of Central Australia, Messrs. Spencer and Gillen observe :-"Should any man break through the strict marriage laws, it is not only an 'impersonal power' which he has to deal with. The head men of the group or groups concerned consult together with the elder men, and, if the offender, after long consultation, be adjudged guilty and the determination be arrived at that he is to be put to death-a by no means purely hypothetical case-then the same elder men make arrangements to carry the sentence out, and a party, which is called an ininja, is organised for the purpose." We hear of similar councils from various parts of the Australian continent. In his description of the aborigines of New South Wales, Dr. Fraser states, "The Australian council of old and experienced men-this aboriginal senate and witenagemot-has the power to decree punishment for tribal offences." The chiefs sit as magistrates to decide all cases which are brought before them, such as the divulging of sacred things, speaking to a mother-in-law, the adultery of a wife; and there is even a 42 (Pelew Islanders). von Kotzebue, (Kreis Kita, in the French Soudan). Bosman, New Description of the Coast of Guinea, p. 331 (Negroes of Fida). Casati, Ten Years in Equatoria, i. 158, 163 (Akkas, Mambettu). Stuhlmann, Mit Emin Pascha ins Herz von Africa, p. 523 (A-lür). Emin Pasha in Central Africa, p. 89 (Wanyoro). Baskerville, in Steinmetz, Rechtsverhältnisse, p. 193 (Waganda). Beverley, ibid. p. 214 (Wagogo). Lang, ibid. p. 253 sqq. (Washambala). Desoignies, ibid. p. 279 sq. (Msalala). Decle, Three Years in Savage Africa, pp. 71, 73, 74, 487 (Barotse, Wakamba). Junod, Les BaRonga, p. 155 sqq. Burton, Zanzibar, ii. 94 (Wanika). Holub, Seven Years in South Africa, ii. 319 (Marutse). Kohler, in Zeitschr. f. vergl. Rechtswiss. xiv. 316 (Herero). Andersson, Lake Ngami, p. 197 (Ovambo). Rautanen, in Steinmetz, Rechtsverhältnisse, p. 340 (Ondonga). Kolben, Present State of the Cape of Good Hope, i. 86, 297 (Hottentots). Kohler, in Zeitschr. f. vergl. Rechtswiss. xv. 333 (Bechuanas). Casalis, Basutos, pp. 224, 226. Maclean, Compendium of Kafir Laws and Customs, pp. 35, 110. Holden, Past and Future of the Kaffir Races, pp. 333, 336. Shooter, Kafirs of Natal, p. 99 sq. 1 Spencer and Gillen, op. cit. p. 15. tribal executioner. At the same time, many grievances are arranged without the intervention of the chiefs; for instance, if a man has been found stealing from his neighbour, or two men quarrel about a woman, a fight ensues, the one or the other gets his head broken, and there the matter ends. The Narrinyeri have a judgment council of the elders of the clan, called tendi, which is presided over by the chief of the clan; and when any member of the tendi dies, the surviving members select a suitable man from the clan to succeed him. "All offenders are brought to this tribunal for trial. In cases 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."2 Among another Australian tribe, the Gournditch-mara, again, the headman, whose office was hereditary, "settled all quarrels and disputes in the tribe. When he had heard both sides, and had given his decision in a matter, no one ever disputed it." 3 Among the Australian aborigines, then, we find cases in which punishment is inflicted by the whole community, and other cases in which it is inflicted by a tribunal or a chief. There can be little doubt that the latter system has developed out of the former; there are obvious instances of transition from the one to the other. Among the North-West-Central Queensland natives, for instance, in cases of major offences, such as murder, incest, or physical violence, the old men are only said to "influence" aboriginal public opinion. It is an inconvenient, and in larger communities a difficult, procedure for the whole group to inflict punishments in common, hence the administration of justice naturally tends to pass into the hands of the leading men or the chief. But the establishment of a judicial authority within the society may also have a different origin. Very frequently judicial organisation 1 Fraser, Aborigines of New South Wales, p. 39. 2 Taplin, Narrinyeri,' in Woods, Native Tribes of South Australia, p. 34 sq. 3 Fison and Howitt, Kamilaroi and Kurnai, p. 277. Roth, op. cit. p. 141. seems to have developed, not out of a previous system of lynch-law, but out of a previous system of private revenge. An act of individual or family revenge is by itself, of course, an expression of private, not of public, feelings—of revenge, not of moral indignation. But the case is different with the custom of revenge. We shall see in a following chapter that blood-revenge is regarded not only as a right, but, very frequently, as a duty incumbent upon the relatives of the slain person. So, also, revenge may be deemed a duty in cases where there is no blood-guiltiness. Among the Australian Geawe-gal tribe, for instance, the offender, according to the magnitude of his offence, was to receive one or more spears from men who were relatives of the deceased person; or the injured man himself, when he had recovered strength, might discharge the spears at the offender. And our authority adds, "Obedience to such laws was never withheld, but would have been enforced, without doubt, if necessary, by the assembled tribe." The obligatory character of revenge implies that its omission is disapproved of. It is of course the man on whom the duty of vengeance is incumbent that is the immediate object of blame, when this duty is omitted; and the blame may partly be due to contempt, especially when there is a suspicion of cowardice. But behind the public censure there is obviously a desire to see the injurer suffer. Instances may be quoted in which the society actually assists the avenger, in some way or other, in attaining his object. Speaking of the Fuegians, M. Hyades observęs :-"Nous avons entendu parler d'individus coupables de meurtre sur leur femme, par exemple, et qui, poursuivis par tout un groupe de familles, finissaient, quelquefois un an ou deux après leur crime, par tomber sous les coups des parents de la victime. Il s'agit là plutôt d'un acte de justice que d'une satisfaction de vengeance. Nous devons faire remarquer en outre que, dans ces cas, le meurtrier est abandonné de tous, et qu'il ne peut se soustraire que pendant un temps 1 Fison and Howitt, op. cit. p. 282. relativement assez court au châtiment qui le menace."1 Amongst the Central Eskimo, who have "no punishment for transgressors except the blood vengeance," if a man has committed a murder or made himself odious by other outrages, "he may be killed by any one simply as a matter of justice. The man who intends to take revenge on him must ask his countrymen singly if each agrees in the opinion that the offender is a bad man deserving death. If all answer in the affirmative he may kill the man thus condemned, and no one is allowed to revenge the murder."2 Among the Greenlanders, in cases of extreme atrocity, the men of a village have been known to make common cause against a murderer, and kill him, though it otherwise is the business of the nearest relatives to take revenge. It is also noteworthy that, among the crimes which in savage communities are punished by the community at large, incest is particularly prominent. The chief reason for this I take to be the absence of an individual naturally designated as the avenger. 3 Thus public indignation displays itself not only in punishment, but, to a certain extent, in the custom of revenge. In both cases the society desires that the offender shall suffer for his deed. Strictly speaking, the relationship between the custom of revenge and punishment is not, as has been often supposed, that between parent and child. It is a collateral relationship. They have a common ancestor, the feeling of public resentment. But whilst public opinion demands that vengeance shall be exacted for injuries, it is also operative in another way. Though in some cases the resentment may seem to outsiders to be too weak or too much checked by other impulses, it may in other cases appear unduly great. As a matter of fact, we frequently find the practice of revenge being regulated by a rule which requires equivalence between the injury and the suffering inflicted in return for Hyades and Deniker, Mission scientifique du Cap Horn, vii. 240 sq. VOL. I 2 Boas, Central Eskimo,' in Ann. Rep. Bur. Ethn. vi. 582. 3 Nansen, Eskimo Life, p. 163. N 1 it. Sometimes this rule demands that only one life shall be taken for one;1 sometimes that a death shall be avenged on a person of the same rank, sex, or age as the deceased; 2 sometimes that a murderer shall die in the same manner as his victim; sometimes that various kinds of injuries shall be retaliated by the infliction of similar injuries on the offender. This strict equivalence is not characteristic of resentment as such. There is undoubtedly a certain proportion between the pain-stimulus and the reaction; other things being equal, resentment increases in intensity along with the pain by which it is excited. The more a person feels offended, the greater is his desire to retaliate by inflicting counter-pain, and the greater is the pain which he desires to inflict. But resentment involves no accurate balancing of suffering against suffering, hence there may be a crying disproportion between the act of revenge and the injury evoking it. As Sir Thomas Browne observes, a revengeful mind "holds no rule in retaliations, requiring too often a head for a tooth, and the supreme revenge for trespasses, which a night's rest should obliterate." If, then, the rule of 1 Krause, Tlinkit-Indianer, p. 245 sq. Macfie, Vancouver Island and British Columbia, p. 470. Foreman, Philippine Islands, p. 213 (Negrito and Igorrote tribes in the province of La Isabela). Low, Sarawak, p. 212 (Dyaks). von Langsdorf, Voyages and Travels, i. 132 (Nukahivans). 2 Jagor, Travels in the Philippines, p. 213 (Igorrotes). Blumentritt, quoted by Spencer, Principles of Ethics, i. 370 sq. (Quianganes of Luzon). Munzinger, Östafrikanische Studien, p. 243(Marea). Koran, ii. 173. 3 von Martius, op. cit. i. 129 (Brazilian Indians). Wallace, Travels on the Amazon, p. 499 (Uaupés). Schoolcraft, Indian Tribes of the United States, iii. 246 (Dacotahs). Steller, Kamtschatka, P. 355. Hickson, A Naturalist in North Celebes, p. 198 (Sangirese of Manganitu). Fraser, Journal of a Tour through Part of the Himala Mountains, P. 339 (Butias). Ellis, History of Madagascar, i. 371. Munzinger, op. cit. p. 502 (Barea, and Kunáma). de Abreu, Canary Islands, p. 27 (aborigines of Ferro). Im Thurn, op cit. p. 213 sq. (Guiana Indians). Glimpses of the Eastern Archipelago, p. 86 (Bataks). Arbousset and Daumas, Tour to the North-East of the Colony of Good Hope, p. 67 (Mantetis). Munzinger, op. cit. p. 502 (Barea and Kunáma). Post, Afrikanische Jurisprudenz, ii. 27 (various other African peoples). de Abreu, op. cit. p. 71 (aborigines of Gran Canaria). 5 Cf. Tissot, Le droit pénal, i. 226; Steinmetz, Ethnol. Studien zur ersten Entwicklung der Strafe, i. 401; Makarewicz, op. cit. p. 13. 6 von Martius, op. cit. i. 128 (Brazilian aborigines). Calder, in Jour. Anthr. Inst. iii. 21 (Tasmanians). Forbes, A Naturalist's Wanderings in the Eastern Archipelago, p. 473 (Timorese). Sarasin, Forschungen auf Ceylon, iii. 539 (Veddahs). Jacob, Das Leben der vorislamischen Beduinen, p. 144 sq. |
