do not require, at least mercy does, that we should not, except for weighty causes tending to the safety of many, undertake anything which may involve innocent persons in destruction" 1 "; or when he recommended enemies willing to surrender on fair conditions, or unconditionally, to be spared.2 Afterwards, however, opinion changed rapidly. Pufendorf, in echoing the doctrine of Grotius,3 spoke to a world which was already convinced; and in the eighteenth century Bynkershoek stands alone in giving to a belligerent unlimited rights of violence. In reference to the assumption that this change of opinion is due to the influence of the Christian religion, it is instructive to note that Grotius, in support of his doctrine, appealed chiefly to pagan authorities, and that even savage peoples, without the aid of Christianity, have arrived at the rule which in war forbids the destruction of helpless persons and captives.

The prevailing attitude towards war indicates the survival, in modern civilisation, of the old feeling that the life of a foreigner is not equally sacred with the life of a countryman. In times of peace this feeling is usually suppressed; it appears in no existing law on homicide, nor does it, generally, find expression in public opinion. It dares to disclose itself only in the form of national aggressiveness, under the flag of patriotism, or, perhaps, in the treatment of the aborigines of some distant country. The behaviour of European colonists towards coloured races only too often reminds us of the manner in which savages treat members of a foreign tribe. It is said that the frontier peasants at the Cape find nothing morally wrong in the razzias which they undertake against the Bushmans, without any provocation whatsoever, though they would consider it a heinous sin to do the same to their Christian fellow-men.5 In Aus

tralia there are instances reported of young colonists employing the Sunday in shooting blacks for the sake of sport. "The life of a native, says Mr. Lumholtz, "has but little value, particularly in the northern part of Australia, and once or twice colonists offered to shoot blacks for me so that I might get their skulls. On the borders of civilisation men would think as little of shooting a black man as a dog. The law imposes death by hanging as the penalty for murdering a black man, but people live so far apart in these uncivilised regions that a white man may in fact do what he pleases with the blacks. . . . In the courts the blacks are defenceless, for their testimony is not accepted. The jury is not likely to declare a white man guilty of murdering a black man. On the other hand, if a white man happens to be killed by the blacks, a cry is heard throughout the whole colony."

1 Lumholtz, Among Cannibals, p. 346 sqq. See also Mathew, in Jour. & Proceed. Roy. Soc. N.S. Wales, xxiii.

390; Breton, Excursions in New South Wales, p. 200 sq.; Stokes, Discoveries in Australia, ii. 459 sqq.

CHAPTER XVI

HOMICIDE IN GENERAL (concluded)

have only been concerned

In the last two chapters we with the statement of facts; we shall now make an attempt to explain those facts. What is the source of the moral commandment, "Thou shalt not kill"? And what is the cause of its original narrowness and of its subsequent extension ?

Mr. Spencer suggests that the taking of life was regarded as a wrong done to the family of the dead man or to the society of which he was a member, before it came to be conceived of as a wrong done to the murdered man himself.1 But considering the mutual sympathy which prevails in small savage communities, it seems extremely probable that sympathetic resentment felt on account of the injury suffered by the victim has from the beginning been a potent cause of the condemnation of homicide. Savages, no less than civilised mankind, practically regard a man's life as his highest good. Whatever opinions may be held about the existence after death, whatever blessings may be supposed to await the disembodied soul, nobody likes to be hurried into that existence by another's will. According to early beliefs, the soul of a murdered man is furious with the person. who slew him, and finds no rest until his death has been avenged. His friends and comrades pity his fate and 1 Spencer, Principles of Ethics, ii. 2 See infra, on Blood-revenge.

feel resentment on his behalf; whereas, in a state of culture where sympathy is restricted to a narrow group of people, no such resentment will be felt if the victim is a member of another group. On the contrary, when he is regarded as an actual or potential enemy, or when the slaying of him is taken for a test of courage, the manslayer will be applauded by his own people, and his deed will be styled good or meritorious. In some cases superstition, also, is an encouragement to extra-tribal homicide. The Kukis believe that, in paradise, all the enemies whom a man has killed will be in attendance on him as slaves.1 A similar belief partly lies at the bottom of the custom of head-hunting; whilst, according to other notions, the soul of the man whose head is procured is transformed into a guardian spirit. A Kayan chief said of the custom in question, "It brings us blessings, plentiful harvests, and keeps off sickness and pains; those who were once our enemies, hereby become our guardians, our friends, our benefactors."4 Now, progress in civilisation is generally marked by an expansion of the altruistic sentiment; and this largely explains why the prohibition of homicide has come to embrace more and more comprehensive circles of men, and finally, in the most advanced cases, the whole

human race.

2

But whilst homicide is censured as a wrong done to the person slain, it is at the same time viewed as an injury inflicted upon the survivors. It deprived his friends of his company, his family and community of a useful member. In Arabia, when a man was killed, his tribesmen, instead of mentioning his name, used to say, "Our blood has been spilt." According to Lafitau, the loss of a single person seemed to the North American Indians. a subject of great regret, because it weakened the family."

1 Dalton, Descriptive Ethnology of Bengal, p. 46.

2 Ling Roth, Natives of Sarawak, ii. 141. Haddon, Head-Hunters, p. 394. 3 Wilken, Het animisme bij de volken van den Indischen Archipel, p. 124.

4 Furness, Home-Life of Borneo Head-Hunters, p. 59.

5 Robertson Smith, Marriage and Kinship in Early Arabia, p. 26.

6 Lafitau, Maurs des sauvages ameriquains, ii. 163.

"1

Among the Basutos, again, murder is condemned "as a violation of the sacred rights of a father, who is deprived of the services of his son, or of a widow and orphans, who are left without support. Especially when a person is considered more or less the property of another, the taking of his life is largely looked upon as an offence against the owner. Mr. Warner states of the Kafirs, "All homicide must. . . be atoned for; the principle assumed being, that the persons of individuals are the property of the Chief, and that having been deprived of the life of a subject, he must be compensated for it."2 We meet with a somewhat similar notion in the history of English legislation. In his book on the Commonwealth of England, Thomas Smith observes, "Attempting to impoison a man, or laying a waite to kill a man, though hee wound him dangerously, yet if death follow not, it is no fellony by the Law of England, for the Prince hath lost no man, and life ought to be giuen we say for life only. In the Middle Ages homicide was conceived as a breach of the "King's peace"; and both before and afterwards it has been stigmatised as a disturbance of public tranquillity and an outrage on public safety. In the Anglo-Saxon wer and wite we find a clear distinction between the private and public aspects of homicide.*

"3

A manslayer not only causes a loss to the group which he deprives of a member, but he also may give trouble to his own people, who, in consequence, disapprove of his act. Among the Yahgans of Tierra del Fuego, says Mr. Bridges, "many things conspire to make the shedding of blood a fearful thing. A murderer imperils all his friends. and connections more or less, and consequently estranges them from himself. This state of things is the greatest safeguard to human life we can conceive."5 Among the Kafirs of the Hindu-Kush, "the mere killing of an

1 Casalis, Basutos, p. 224 sq.

2 Warner, in Maclean, Compendium of Kafir Laws, p. 60 sq.

3 Thomas Smith, Common-wealth of England, p. 194 sq.

4 Cf. Pollock and Maitland, History of English Law before the Time of Edward I. i. 48.

5 Bridges, in South American Missionary Magazine, xiii. 153.