form of murder. "Prevention of birth," says Tertullian, "is a precipitation of murder; nor does it matter whether one take away a life when formed, or drive it away while forming. He also is a man who is about to be one. Even every fruit already exists in its seed." St. Augustine, again, makes a distinction between an embryo which has already been formed, and an embryo as yet unformed. From the creation of Adam, he says, it appears that the body is made before the soul. Before the embryo has been endowed with a soul it is an embryo informatus, and its artificial abortion is to be punished with a fine only; but the embryo formatus is an animate being, and to destroy it is nothing less than murder, a crime punishable with death. This distinction between an animate and inanimate fetus was embodied both in Canon and Justinian law, and passed subsequently into various lawbooks.". And a woman who destroyed her animate embryo was punished with death."

3

The criminality of artificial abortion was increased by the belief that an embryo forma.us, being a person endowed with an immortal soul, was in need of baptism for its salvation. In his highly esteemed treatise De Fide, written in the sixth century, St. Fulgentius says, "It is to be believed beyond doubt, that not only men who are come to the use of reason, but infants, whether they die in their mother's womb, or after they are born, without baptism,

1 Tertullian, Apologeticus, 9 (Migne op. cit. i. 319 sq.).

2 St. Augustine, Questiones in Exodum, 80; Idem, Questiones Veteris et Novi Testamenti, 23 (Migne, op. cit. xxxiv.-xxxv. 626, 2229).

3 Gratian, Decretum, ii. 32. 2. 8 sq. As regards the time from which the fetus was considered to be animate a curious distinction was drawn between the male and the female fetus. The former was regarded as animatus forty days after its conception, the latter eighty days. This theory, howeverwhich was derived, as it seems, either from an absurd misinterpretation of Leviticus, xii. 2-5, or from the views of

Aristotle (De animalibus historiæ, vii. 3; cf. Pliny, Historia naturalis, vii. 6) -was not accepted by the glossarist of the Justinian Code, who fixed the animation of the female, as well as of the male, fetus at forty days after its conception; and this view was adopted by later jurists (Spangenberg, in Neues Archiv des Criminalrechts, ii. 37 sqq.). von Fabrice, op. cit. p. 202 sq. Berner, op. cit. p. 501. Wilda, op. cit. p. 720 sqq.

5

6 Fleta, i. 23. 12 (England). Charles V.'s Peinliche Gerichts Ordnung, art. 133. Spangenberg in Neues Archiv des Criminalrechts, ii. 16.

in the name of the Father, Son, and Holy Ghost, are punished with everlasting punishment in eternal fire, because though they have no actual sin of their own, yet they carry along with them the condemnation of original sin from their first conception and birth." And in the Lex Bajuwariorum this doctrine is expressly referred to in a paragraph which prescribes a daily compensation for children killed in the womb on account of the daily suffering of those children in hell. Subsequently, however, St. Fulgentius' dictum was called in question, and no less a person than Thomas Aquinas suggested the possibility of salvation for an infant who died before its birth. Apart from this, the doctrine that the life of an embryo is equally sacred with the life of an infant was so much opposed to popular feelings, that the law concerning. feticide had to be altered. Modern legislation, though treating the fetus as a distinct being from the moment of its conception, punishes criminal abortion less severely than infanticide. And the very frequent occurrence of this crime is an evidence of the comparative indifference with which it is practically looked upon by large numbers of people in Christian countries.

1 St. Fulgentius, De fide, 27 (Migne, op. cit. lxv. 701).

2 Lex Bajuwariorum, viii. 21 (vii. 20).

3 Lecky, History of the Rise and Influence of the Spirit of Rationalism in Europe, i. 360, n. 2.

4 Henke, Lehrbuch der gerichtlichen Medicin, § 99, p. 75. Berner, op. cit. p. 502.

5

von Fabrice, op. cit. p. 199. For modern laws referring to criminal abortion, see ibid. p. 206 sqq., and Spangenberg, in Neues Archiv des Criminalrechts, ii. 178 sqq.

6 See Ploss, Das Weib, i. 848 sqq.; Schmidt's Jahrbücher der in- und ausländischen Gesammten Medicin, xciii. 97.

VOL. I

E E

CHAPTER XVIII

THE KILLING OF WOMEN AND OF SLAVES

THE CRIMINALITY OF HOMICIDE INFLUENCED

BY DISTINCTIONS OF CLASS.

AMONG many of the lower races a husband is said to possess the power of life and death over his wife; but what this actually means is not always obvious. It is quite probable that, in some cases, the husband may put his wife to death whenever he pleases, without having to fear any disagreeable consequences. In other instances he, by doing so, at all events exposes himself to the vengeance of her family. Among the Bangerang tribe of Victoria, for instance," he might ill-treat her, give her away, do as he liked with her, or kill her, and no one in the tribe interfered; though, had he proceeded to the last extremity, her death would have been avenged by her brothers or kindred." So, also, among the aborigines of North-WestCentral Queensland, " a wife has always her 'brothers' to look after her interests," and if a man kills his wife he has to deliver up one of his own sisters for his late wife's friends to put to death. We shall see in a subsequent chapter that many statements in which absolute marital power is ascribed to savage husbands are not to be interpreted too literally. I venture to believe that the husband's so-called power of life and death is generally

1

1 Curr, Recollections of Squatting in Victoria, p. 248.

2 Roth, Ethnological Studies among the North-West-Central Queensland

Aborigines, p. 141. Cf. Fison and Howitt, Kamilaroi and Kurnai, p. 281 (Geawe-gal tribe).

restricted by custom to cases where the wife has committed some offence, and, especially, where she has been guilty of unfaithfulness.

The right of punishing the wife capitally, however, is means universally granted to the husband in uncivilised communities. Among the Gaika tribe of the Kafirs, "if he puts her to death, he is punished as a murderer." Among the Bakwiri he has to suffer death himself if he kills his wife; if she is unfaithful to him he is only permitted to beat her. From the information we possess of the lower races it does not seem to be the general rule that husbands punish their adulterous wives with death; but whether they have the right of doing so is a question seldom touched upon by our authorities. We shall see that savage custom often gives to the husband only very limited rights over his wife, and requires that he should treat her with respect.

Among various peoples of a higher type the husband has, under certain circumstances, had the right of punishing his wife capitally; but this seems to be nearly all that is involved in that "power of life and death" which he is said to have possessed over her. However, whilst custom or law forbade him to kill his wife without sufficient cause, such a deed was hardly looked upon with the same horror, or treated with the same severity, as the murder of a husband by his wife, owing to the former's superior position in the family. Among the Langobardi, according to the laws of King Rothar, a husband who killed his wife had to pay the same compensation as anybody else would have had to pay for taking her life, but if a wife killed her husband, she was put to death, and her property forfeited

1 Brownlee, in Maclean, Compendium of Kafir Laws and Customs, p. 117.

2 Schwarz, quoted by Post, Afrikanische Jurisprudenz, i. 401.

3 See Steinmetz, Ethnologische Studien zur ersten Entwicklung der Strafe, ii. 303.

4 Rein, Japan, p. 424. Hommel, Die semitischen Völker und Sprachen

i. 417 (Babylonians). Leist, Altarisches Jus Civile, i. 196, 275 (“Aryan" peoples). Wilda, Strafrecht der Germanen, p. 705; Nordström, Bidrag till den svenska samhälls-författningens historia, ii. 61 sq.; Weinhold, Alt nordisches Leben, p. 250; Keyser Efterladte Skrifter, ii. pt. ii. 28 sq. (Teutons).

to the family of the dead.1 In Russia, in the seventeenth century, whilst a husband who murdered his wife was, according to law, obnoxious to corporal punishment, a wife who murdered her husband was buried alive, with the head above the ground, and left to perish by hunger.2 According to English law, a woman who killed her husband was guilty of "petit treason," that is, murder in its most odious degree.3

Among many peoples the life of a woman is held cheaper than that of a man, independently of the relationship between the slayer and his victim. In Burma, if a woman was accidentally killed, less compensation had to be paid than for a man. A Burman explained this in the following words :-"A woman is worth less than a man in that way. A maidservant can be hired for less than a manservant, a daughter can claim less than a son. They cannot do so much work; they are not so strong. If they had been worth more, the law would have been the other way; of course they are worth less." 4 Among Muhammedans the price of blood for a woman is half the sum which is the price of blood for a free man. In ancient India the murder of a woman, unless she was with child, was in the eye of the law on a par with the murder of a Sûdra." According to Cambrian law, the galanas, or blood-price, of a woman was half the galanas of her brother. Among the Teutons the wergeld of a woman varied: sometimes it was the same as that for a man, sometimes only half as much, but sometimes twice as much, or, if she was pregnant,

5 Lane, Arabian Society in the Middle Ages, p. 18.

• Baudhayana, i. 10. 19. 3. Leist, Alt-arisches Jus Gentium, p. 305 sqq.

7 Venedotian Code, ii. 1. 16. According to the Laws of the Brets and Scots,' the estimate of a married woman is less by a third part than that of her husband, whereas the estimate of an unmarried woman is equal to that of her brother (Innes, Scotland in the Middle Ages, p. 181).