jecting him to punishment for murder,' the duel still prevails in many European countries as a recognised custom, so much supported by public opinion that the laws referring to it are seldom or never applied. 3 This curious practice of taking the law into one's own hands, which we find existing in the midst of modern civilisation, is explicable, partly from the indifference with which legislators have treated offences against honour,2 partly from the force of habit. The insulted person, finding no adequate legal remedy for the affront he has suffered, determines to be his own avenger, and challenges the offender to fight. Nor is revenge his only motive. He desires also to wash off the indignity by showing that he respects his honour more than his life. The notion that a challenge to mortal combat effaces the blot which an insult has imprinted upon a man's honour is a survival from a period when the honourable man was above everything a brave man. By displaying courage the offended party demonstrates that he is not worthy of contempt, by showing timidity he condemns himself. So far as justice is concerned, the duel, of course, became an absurdity as soon as it ceased to be looked upon in the light of an ordeal. It compels the insulted person to expose himself to a fresh injury from the side of an impudent offender, it allows the scoundrel to repay the most condign censure with a mortal stroke. But when a man's honour is at stake the voice of justice is easily silenced, and the pressure of ancient habit is greater than ever. As is usual in similar cases, a variety of more or less futile arguments are adduced to give their support to the survival. Lord Kames maintained that, if two persons agree to decide their quarrel by single combat, the State has nothing to do with it, since they need not make use of the protection which the State offers them. But, as a matter of fact, the 1 Günther, Die Idee der Wiedervergeltung, iii. 225, n. 467. Stephen, History of the Criminal Law of England, iii. 99 sqq. Gelli, Il duello, p. 21. 2 Cf. Bentham, Theory of Legisla tion, p. 299 sqq. 3 That the modern duel is a special development of Chivalry has been pointed out by Buckle (History of Civilization in England, ii. 136 sq.). 4 Kames, Sketches of the History of Man, i. 415 n. As duel is not a private affair between two individuals. Moore observed, "a refusal of the duel is attended with such mortifying circumstances, with such an imputation of meanness and cowardice. with such a studied contempt in public, and exclusion from the polite circle in private, as renders the alternative both cruel and inhuman"; and it would seem that the State ought to protect its members against such a compulsion. It is said that the duel " grasps the sword of justice, which the laws have dropped, punishing what no code can chastisecontempt and insult." 2 But we find that in countries where it no longer prevails, laws against insults, courts of honour, and especially more refined ideas as regards honorary satisfaction, have made it as useless as it is absurd, a matter of the past which nobody desires to revive. 1 Moore, Full Inquiry into the Subject of Suicide, ii. 276. 2 Quoted by Millingen, History of Duelling, i. 300. CHAPTER XXII 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.1 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 1 Cf. Stephen, History of the Criminal Law of England, iii. 11. 2 Post, Afrikanische Jurisprudenz, ii. 61 sqq. Munzinger, Östafrikanische Studien, pp. 208 (Takue), 502 (Barea and Kunáma). Burton, Two Trips to Gorilla Land, i. 105 (Mpongwe). Maclean, Compendium of Kafir Laws and Customs, p. 61 sq. Macpherson, Memorials of Service in India, p. 82 (Kandhs). Earl, Papuans, p. 83 (Papuans of Dory). Kubary, Die socialen Einrichtungen der Pelauer, p. 74 (Pelew Islanders). Petroff, 'Report on Alaska,' in Tenth Census of the United States, p. 105 (Thlinkets). 3 Laws of Manu, viii. 286. 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 35.3 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." Lane, Manners and Customs of the Modern Egyptians, p. 120. Sachau, Muhammedanisches Recht, p. 764. 2 Wilda, Strafrecht der Germanen, p. 729. Stemann, Den danske Retshistorie indtil Christian V's Lov, p. 658. Stephen, History of the Criminal Law of England, i. 56. Lappenberg, History of England under the AngloSaxon Kings, ii. 422. 5 3 Lex Salica, edited by Hessels, coll. 163-167, 170, 172-177, 179. 4 Ibid. col. 100 sqq. 5 Laws of Ethelbirht, 54. 6 Ancient Laws of Ireland, iii pp. cix., 349. Venedotian Code, iii. 23 (Ancient Laws and Institutes of Wales, p. 151 sqq.). Dimetian Code, ii. 17 (ibid. p. 246 sqq.). Gwentian Code, ii. 6 sq. (ibid. 340 sq.). Ancient Laws of Ireland, iii. 355 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.1 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. 2 By using violence against their parents, children grossly⚫ offend against the duty of filial regard and submissiveness. It is said in the Laws of Hammurabi, 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; never saw an Efatese beating a child." The Eskimo 1 Ibid. iii. pp. cix., cxi., 349, 351. 4 Griffis, Corea, p. 236. 5 Curr, Recollections of Squatting in Victoria, p. 252 (Bangerang tribe). Angas, Savage Life and Scenes in Australia, i. 94 (tribes of the Lower Murray). Calvert, Aborigines of Western Australia, p. 30 sq. Lumholtz, Among Cannibals, p. 192 sq. (Northern Queensland aborigines). Kubary, 'Die Palau-Inseln in der Südsee,' in Journal des Museum Godeffroy, iv. 56 (Pelew Islanders). Man, Sonthalia and the Sonthals, p. 78. von Siebold, Die Aino auf der Insel Yesso, p. II. Murdoch, Ethnological Results of the Point Barrow Expedition,' in Ann. VOL. I 5 ז I Rep. Bur. Ethn. ix. 417 (Point Barrow Eskimo). Boas, 'Central Eskimo,' ibid. vi. 566. Richardson, in Franklin, Journey to the Shores of the Polar Sea, p. 68 (Crees). Lumholtz, Unknown Mexico, p. 274 (Tarahumares). Rautanen, in Steinmetz, Rechtsverhältnisse, p. 329 (Ondonga). See also Steinmetz, Ethnologische Studien zur ersten Entwicklung der Strafe, ii. ch. vi. § 2, especially p. 203; Idem, 'Das Verhältnis zwischen Eltern und Kindern bei den Naturvölkern,' in Zeitschrift für Socialwissenschaft, i. 610 sqq. 6 Gason, Manners and Customs of the Dieyerie Tribe,' in Woods, Native Tribes of South Australia, p. 258. 7 Macdonald, Oceania, p. 195. L L |