1 to a stake and allowed their women to torture him by mutilating him previous to killing him ";1 and of many other North American Indians it is said that they "devote their captives to death, with the most agonising tortures."? The wars of the Society Islanders, Ellis observes, were most merciless and destructive; "invention itself was tortured to find out new modes of inflicting suffering. On the other hand, there are not wanting instances of savage warfare being conducted on more humane principles. Dobrizhoffer tells us that "cruelty towards captives and enemies is abhorred by the Abipones, who never torture the dying"; and among the Somals no injury is done to enemies who have been severely wounded in the battle.5 Civilised nations maintain that, in time of war, no greater injuries should be inflicted upon the enemy than are necessary to obtain the end of the war. 4 The right to bodily integrity is influenced by religious differences as well as national. According to Muhammedan law, the compensation for injuries inflicted on a Jew or a Christian is a third, for those inflicted on a Parsee only a fifteenth, of the sum to be paid for similar injuries done to a Moslem. A mediæval Spanish law prescribes that a Christian who beats a Jew shall pay four maravedis, but that a Jew who beats a Christian shall pay ten.7 6 The right to bodily integrity may be forfeited by the commission of a crime. As has been already noticed, physical injuries are frequently resented according to the law of like for like; and in other cases, also, the inflic 8 1 Dorsey, 'Omaha Sociology,' in Ann. Rep. Bur. Ethn. iii. 313. 2 Adair, History of the American Indians, p. 388. 3 Ellis, Polynesian Researches, i. 293. Cf. Williams, Narrative of Missionary Enterprises, p. 533 (Samoans); Foreman, Philippine Islands, p. 185; Ellis, Tshi-speaking Peoples of the Gold Coast, p. 172 sq. 4 Dobrizhoffer, Account of the Abibones, ii. 411. 5 Paulitschke, Ethnographie NordostAfrikas, p. 255 6 Sachau, op. cit. p. 764. 7 Fuero de Sepulveda,' art. 37 sq., quoted by Du Boys, Histoire du droit criminel de l'Espagne, p. 74. 8 Supra, p. 178. See also Laws of Hammurabi, 196, 197, 200; Exodus, xxi. 24 sq.; Leviticus, xxiv. 19 sq.; Deuteronomy, xix. 21; Koran, v. 49; Sachau, op. cit. p. 762 sq. (Muhammedan law); Leist, Alt-arisches Jus Gentium, p. 426 sq. (Greeks); Lex Duodecim Tabularum, viii. 2; Günther, Idee der Wiedervergeltung, p. 186 sqq. (Teutons). 3 4 5 8 tion of corporal suffering-by mutilation, scourging, and so forth-is a common penalty. Amputation or mutilation of the offending member has particularly been in vogue among so-called peoples of culture.1 It is often mentioned in the Code of Hammurabi2 and in the Laws of Manu. It occurred among the Greeks, Romans, and Teutons. Medieval codes contain numerous instances of it. The Laws of Alfred prescribe that a male theow who commits a rape upon a female theow shall be emasculated; and in a later age Bracton reserves the same punishment for the deflowerer of a virgin, with the addition that the offender shall also lose his eyes, "on account of his looking at the beauty, for which he coveted possession of the virgin." 9 According to a law of Cnut, an adulteress shall have her nose and ears cut off.10 Aethelstan enjoined that an illicit coiner should lose his right hand; whereas in later times this punishment was restricted to those who struck anybody in the king's presence or in his court.12 By the statute law of Scotland the punishment of forgery, or falsifying of writings, was at first the amputation of the hand, afterwards dismembering of it, joined with other pains.13 In some countries a perjurer lost the offending fingers or his right hand,1 in others he had his tongue cut 1 For its occurrence in modern Persia, see Polak, Persien, i. 256, 329 sq.; in Fez, see Leo Africanus, History and Description of Africa, ii. 470. The Koran (v. 42) orders theft to be punished by cutting off the hands of the thief, but this punishment is now seldom practised in Muhammedan countries. Among the lower races I have met only with a few instances of punishing the offending member. In Ashanti intrigue with the female slaves of the royal household is punished by emasculation (Ellis, Tshi-speaking Peoples of the Gold Coast, p. 287); and the Kamchadales burn the hands of people who have been frequently caught in theft (Krasheninnikoff, op. cit. p. 179). 2 Laws of Hammurabi, 192, 194, 195, 218, 226, 253. 3 Laws of Manu, viii. 270-272, 279283, 322, 334, 374; xi. 105. 11 4 Günther, op. cit. i. 94 sqq. 5 Ibid. i. 155 sqq. 6 Ibid. i. 195 sqq. Wilda op. cit. p. 510. Grimm, Deutsche Rechtsalterthümer, p. 740. 7 Du Boys, Histoire du droit criminel des peuples modernes, ii. 699. Idem, Histoire du droit criminel de l'Espagne, p. 94. Cibrario, Economia politica del medio eve, i. 346 sq. 8 Laws of Alfred, ii. 25. Bracton, De Legibus et Consuetudinibus Angliæ, fol. 147, vol. ii. 480 sq. 10 Laws of Cnut, ii. 54. 11 Laws of Athelstan, 14. 12 Strutt, View of the Manners, Customs, &c. of the Inhabitants of England, iii. 43. 13 Erskine, Principles of the Law of Scotland, p. 571. 1 Stemann, op. cit. p. 645. Charles V.'s Peinliche Gerichts Ordnung, art. 4 1 off or pierced with a hot iron; and in England, before the Conquest, a man might lose his tongue by bringing a false and scandalous accusation.2 In the seventeenth century a person in Scotland was sentenced to have his tongue bored because he had libelled the Lord Justice General.3 In German and Austrian codes we find, even in the eighteenth century, traces of the principle of punishing the offending member; and in France the last survival of it-the amputation of the right hand of a parricide before his execution--disappeared only in 1832.5 Growing refinement of feeling has made people averse from the use of surgery in the administration of justice; and in and in most European countries grown-up offenders are no longer liable to corporal punishment of any kind. 6 Corporal punishment has generally been, by preference, a punishment for poor and common people or slaves." Blows and abusive language, says Plutarch, seem to be more fitting for slaves than the freeborn. According to the religious law of the Hindus, a Brâhmana shall not suffer corporal punishment for any offence. Among the Hebrews 10 and Muhammedans," among the Romans 12 and in the Middle Ages,13 the punishment of mutilation could generally be commuted to a fine. For a long period, in 9 9 Baudhayana, i. 10. 18. 17. Institutes of Vishnu, v. 2. 10 Günther, op. cit. i. 55. 11 Ibid. i. 74 sq. Lane, Manners and Customs of the Modern Egyptians, p. 120. Sachau, op. cit. p. 764. According to Muhammedan law, it is not obligatory for the injured party to accept compensation in lieu of mutilation. 12 Günther, op. cit. i. 124 sqq. Mommsen, Römisches Strafrecht, p. 981. 13 Du Boys, Histoire du droit criminel des peuples modernes, ii. 557 sq. Strutt, op. cit. ii. 8. ... Christian Europe, as well as in Pagan Rome during the Empire,1 the punishment was more savage in proportion as the delinquent was more helpless. "En crimes," says Loysel, "les villains sont plus griévement punis en leurs corps que les nobles. . . . Et où le vilain perdroit la vie, ou un membre de son corps, le noble perdra l'honneur, et réponse en cour."2 Indeed, whilst the slave incurred the penalty of mutilation for the most trifling offence, the noble might be exempted from corporal punishment of any kind.3 In a similar manner the social status of a person has influenced his right to bodily integrity with reference to judicial torture. According to the Chinese Penal Code, "it shall not, in any tribunal of government, be permitted to put the question by torture to those who belong to any of the eight privileged classes, in consideration of the respect due to their character."4 In Rome, under the Republic, torture was exclusively confined to the slaves. In mediæval Christendom it was made use of to an extent and with a cold-blooded ferocity unknown to any heathen nation, and in cases of heresy and treason it was applied to every class of the community. But the tortures inflicted on the nobles and the clergy were lighter than in the case of ordinary laymen, and proof of a more decided character was required to justify their being exposed to torment." "Noble persons and persons of quality," says Dumoulin, "cannot so easily be subjected to torture as persons who are of mean and plebeian rank."8 Guazzini, an eminent Italian jurisconsult and a recognised expositor of the law of torture in the days of its highest ascendency and ripest maturity, observes that the torment inflicted 5 6 Suarez de Paz, Praxis ecclesiastica et secularis, v. I. 3. 12, fol. 154 b. Cf. Lecky, Rise and Influence of the Spirit of Rationalism in Europe, i. 328. 7 Lea, Superstition and Force, p. 526 sq. 8 Dumoulin, quoted by Welling, 'Law of Torture,' in The American Anthropologist, v. 210 sq. 1 on a person shall be proportionate to his age, his physical constitution, his mental habits, and his social status ; and he adds that bishops and others in high civil dignity are exempt from torture even under strong presumptions of guilt.2 The moral notions regarding the infliction of bodily injuries require little comment. They are based on the principle of sympathetic resentment, modified by the ascription of particular rights to some and particular duties to others, on account of the relation in which the parties stand to each other; and they follow the same rules as the ideas concerning homicide, to the exclusion, of course, of all such considerations as result from fear of the slain man's ghost or from the religious horror of taking life. One point, however, calls for special attention. The forcible interference with another person's body not only causes physical pain but commonly entails disgrace upon the sufferer. This largely accounts for the fact that a person's right to bodily integrity varies so much according to his social standing. Even among the lower races we meet with the notions that an act of bodily violence involves a gross insult, and that corporal punishment disgraces the criminal more than any other form of penalty. According to the Malay Code, "the persons who may be put to death without the previous knowledge of the king or nobles, are an adulterer, a person guilty of treason, a thief who cannot otherwise be apprehended, and a person who offers another a grievous affront, such as a blow over the face." Among the Maoris a blow with the fist would lead to a combat with arms. The Thlinkets consider corporal punishment to 5 3 1 Guazzini, Tractatus ad defensam inquisitorum, xxx. 4. 24, vol. ii. 86. 2 Ibid. xxx. 17, vol. ii. 102 sq. 3 Cf. Dimetian Code, ii. 17. 17 (Ancient Laws and Institutes of Wales, p. 248): "The Law says that the limbs of all persons are of equal worth ; if a limb of the king be broken, that it is of the same worth as the limb of the villain yet, nevertheless, the worth of 4 |