off or pierced with a hot iron;1 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 use of surgery in the administration of justice; and in most European countries grown-up offenders are no longer liable to corporal punishment of any kind."

8

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 Baudhayana, i. 10. 18. 17. Insti tutes 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,' 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." 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. 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." 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.

1 Cf. Mackenzie, Studies in Roman Law, p. 414 sq.

2 Loysel, Institutes coutumières, vi. 2. 31 sq., vol. ii. 219 sq.

3 Du Boys, Histoire du droit criminel de l'Espagne, p. 469.

441.

Ta Tsing Leu Lee, sec. cccciv. p.

5 Mommsen, Römisches Strafrecht, p. 405.

Suarez de Paz, Praxis ecclesiastica et secularis, v. 1. 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.

on a person shall be proportionate to his age, his physical constitution, his mental habits, and his social status ;1 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

1 Guazzini, Tractatus ad defensam inquisitorum, xxx. 4. 24, vol. ii. 86.

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

be the greatest indignity to which a freeman can be subjected, hence they never inflict it. And civilised nations who are ready to punish certain criminals with death, hold whipping to be a punishment too infamous to be employed.

1 Holmberg, Ethnograph. Skizzen über die Völker des russischen

Amerika,' in Acta Societatis Scientiarum Fennica, iv. 321.

CHAPTER XXIII

CHARITY AND GENEROSITY

In previous chapters we have examined the regard for the life and physical well-being of others as displayed in moral ideas concerning homicide and the infliction of bodily harm. We shall now consider the same subject from another point of view, namely, the valuation of such conduct as positively promotes the existence and material comfort of a fellow-creature.

There is one duty so universal and obvious that it is seldom mentioned: the mother's duty to rear her children, provided that they are suffered to live. Another duty-equally primitive, I believe, in the human race-is incumbent on the married man: the protection and support of his family. We hear of this duty from all quarters of the savage world.

Among the North American Indians it was considered disgraceful for a man to have more wives than he was able to maintain. Mr. Powers says that among the Patwin, a Californian tribe which he believes to rank among the lowest in the world, "the sentiment that the men are bound to support the women-that is to furnish the supplies-is stronger even than among us."2 Among the Iroquois it was the office of the husband "to make a mat, to repair the cabin of his wife, or to construct a new one." The product of his hunting expeditions, p. 367.

1 Waitz, Anthropologie der Naturvölker, iii. 109. Carver, Travels through the Interior Parts of North America,

2 Powers, Tribes of California, p.

222.