prescribe capital punishment may lead to the highest injustice. As Bentham observes, "the punishment of death is not remissible"; error is possible in all judgments, but whilst in every other case of judicial error compensation can be made, death alone admits of no compensation.1 And not only may the innocent have to suffer an irreparable punishment, but the criminal easily escapes his punishment altogether. Experience shows that the punishment of death has the disadvantage of diminishing the repressive power of the legal menace, because witnesses, judges, and jurymen exert themselves to the utmost in order to avoid arriving at a verdict of guilty in many cases where an execution would be the consequence of such a verdict.2 Finally, the punishment of death almost entirely misses one of the most essential aims of every legitimate. punishment, the reformation of the criminal. Nay, by putting him to a speedy death we actually prevent him from morally reforming himself, and from manifesting the fruits of sincere repentance; and we perhaps deprive him of the opportunity of making good his claim to mercy at the hands of another and a higher Tribunal, on which we are arrogantly encroaching in a matter of which we are wholly unfit to judge.3 Under the influence of these and similar arguments, but chiefly owing to an increasing reluctance to take human life, the legislation of Europe has, from the end of the eighteenth century, undergone a radical change with reference to the punishment of death. In several European and American States it has been formally abolished, or is nowadays never inflicted, whilst in the rest it is practically restricted to cases of wilful murder. But it still has as strenuous advocates as ever, and receives much support from popular feelings. It is said that the abolition of capital punishment would remove one of the 1 Bentham, Rationale of Punishment, p. 186 sqq. Cf. Hetzel, op. cit. p. 442 sqq. 2 Bentham, op. cit. p. 191 sq. Mittermaier, op. cit. pp. 98 sqq., 148. 4 best safeguards of society; that it definitely prevents the criminal from doing further mischief; that it is a much more effective means of deterring from crime than any other penalty; that its abolition would have the disadvantage of crimes widely differing in their nature being placed on the same footing; that a person criminally disposed, if he knew that he would only be punished with imprisonment for life, would, instead of merely perpetrating robbery, commit murder at the same time, being aware that no higher penalty on that account would be inflicted; and so forth. As usually, religion also is called in to give strength to the argument. Several writers maintain that the statements in the Bible which command capital punishment have an obligatory power on all Christian legislators; we even meet with the assertion that the object of this punishment is not the protection of civil society, but to carry out the justice of God, in whose name "the judge should sentence and the executioner strike." 2 But I venture to believe that the chief motive for retaining the punishment of death in modern legislation is the strong hold which the principle of talion has on the minds of legislators, as well as on the mind of the public. This supposition derives much support from the fact that capital punishment is popular only in the case of murder. "Blood, it is said, will have blood, and the imagination is flattered with the notion of the similarity of the suffering, produced by the punishment, with that inflicted by the criminal."3 1 1 Mittermaier, op. cit. p. 128 sqq. 3 Bentham, Rationale of Punishment, p. 191. CHAPTER XXI THE DUEL WHEN the system of revenge was replaced by the system of punishment, the offended party generally lost the right of killing the offender. But there are noteworthy exceptions to this rule. In a previous chapter we have seen that, among various peoples, in cases involving unusually great provocation, an avenger who slays his adversary is either entirely excused by custom or law, or becomes subject to a comparatively lenient punishment.1 A few words still remain to be said about the most persistent survival of the custom of exacting vengeance with eventual destruction of life, the modern duel. But in connection with this survival it seems appropriate to discuss the practice of duelling in general, in its capacity of a recognised social institution. "2 Duelling, or the fighting in single combat on previous challenge, is sometimes resorted to as a means of bringing to an end hostilities between different groups of people. Among the aborigines of New South Wales "the war often ends in a single combat between chosen champions.' In Western Victoria quarrels between tribes are sometimes settled by duels between the chiefs, and the result is accepted as final. "At other times disputes are decided by combat between equal numbers of warriors, painted 1 Supra, p. 290 sqq. VOL. I 2 Fraser, Aborigines of New South Wales, p. 40. K K 1 with red clay and dressed in war costume; but real fighting seldom takes place, unless the women rouse the anger of the men and urge them to come to blows. Even then it rarely results in a general fight, but comes to single combats between warriors of each side; who step into the arena, taunt one another, exchange blows with the liangle, and wrestle together. The first wound ends the combat." Among the Thlinkets feuds between clans or families were commonly settled by duels between chosen champions, one from each side.2 Ancient writers tell us that among the Greeks, Romans, and Teutons, combats were likewise agreed upon to take place between a definite number of warriors, for the sake of ending a war.3 According to Tacitus, the Germans had the custom of deciding the event of battle by a duel fought between some captive of the enemy and a representative of the home army. In all these cases, as it seems, the duel originates in a desire for a speedy peace. 4 In other instances duels are fought for the purpose of settling disputes between individuals, either by conferring on the victor the right of possessing the object of the strife, or by gratifying a craving for revenge and wiping off the affront. Thus, among the pagan Norsemen, any person who confided in his strength and dexterity with his weapons could acquire property by simply challenging its owner to surrender his land or fight for it. The combat was strictly regulated; the person challenged was allowed to strike first, he who retired or who lost his weapon was regarded as vanquished, and he who received the first wound, or who was most seriously wounded, had to pay a fixed sum of money in order to save his life.5 77. 1 Dawson, Australian Aborigines, p. 2 Holmberg, Ethnographische Skizzen über die Völker des russischen Amerika,' in Acta Societatis Scientiarum Fennicæ, iv. 322 sq. 3 See Grotius, De jure belli et pacis, iii. 20. 43. I; Grimm, Deutsche Rechts alterthümer, p. 928. Tacitus, Germania, 10. In the 5 Lea, Superstition and Force, p. III sq. Keyser, Efterladte Skrifter, ii. pt. i. 391. Weinhold, Altnordisches Leben, p. 297. von Amira, 'Recht,' in Paul's Grundriss der germanischen Philologie, iii. 217 sq. Arnesen, islands outside Kamchatka, if a husband found that a rival had been with his wife, he would admit that the rival had at least an equal claim to her. "Let us try, then," he would say, which of us has the greater right, and shall have her." After that they would take off their clothes and begin to beat each other's backs with sticks, and he who first fell to the ground unable to bear any more blows, lost his right to the woman. Among the Eskimo about Behring Strait Mr. Nelson was told by an old man that in ancient times, when a husband and a lover quarrelled about a woman, they were disarmed by the neighbours and then settled the trouble with their fists or by wrestling, the victor in the struggle taking the woman.2 Among the Chippewyans Richardson saw more than once a stronger man assert his right to take the wife of a weaker countryman in consequence of a successful combat. "Any one," he says, "may challenge another to wrestle, and, if he overcomes, may carry off his wife as the prize. . The bereaved husband meets his loss with the resignation which custom prescribes in such a case, and seeks his revenge by taking the wife of another man weaker than himself." 3 In the tribes of Western Victoria, described by Mr. Dawson, a young chief who cannot get a wife, and falls in love with one belonging to a chief who has more than two, can, with her consent, challenge the husband to single combat, and, if the husband is defeated, the conqueror makes her his legal wife.* "In some points," says Mr. Riedel, "the aboriginal law of retaliation in Australia corresponds with the code of honour, so called, which certain classes in Europe have long maintained. When one blackfellow carries off the 4 3 Richardson, Arctic Searching Expedition, ii. 24 sq. 4 Dawson, op. cit. p. 36. For other instances of rights to women being acquired by duels, see Westermarck, History of Human Marriage, p. 159 sqq.; Post, Afrikanische Jurisprudenz, ii. 23 sq. (people of Kordofan). |