CHAPTER XXII BODILY INJURIES CLOSELY related to the right to life is the right to bodily integrity. Indeed, homicide is, generally speaking, the highest form of bodily injury which can, in the nature of things, be inflicted, although there are some forms of ill-treatment which are more terrible than death itself.1 In the case of bodily injuries the magnitude of the offence is, other things being equal, proportionate to the harm inflicted. At the lower stages of civilisation we meet with the principle of an eye for an eye and a tooth for a tooth, or the offender has to pay an adequate compensation for the injury. It is said in the Laws of Manu that, if a blow is struck against men in order to give them pain, the judge shall inflict a fine in proportion to the amount of pain caused. According to Muhammedan law, retaliation for intentional wounds and mutilations is allowed, but a fine may be accepted instead. The fine for depriving a man of any of his five senses, or dangerously wounding him, or grievously disfiguring him for life, or cutting off a member that is single, as the 1 Cf. Stephen, History of the Criminal Law of England, iii. 11. 2 Post, Afrikanische Jurisprudenz, ii. 61 sqq. Munzinger, Östafrikanische Studien, pp. 208 (Takue), 502 (Barea and Kunáma). Burton, Two Trips to Gorilla Land, i. 105 (Mpongwe). Maclean, Compendium of Kafir Laws and Customs, p. 61 sq. Macpherson, Memorials of Service in India, p. 82 (Kandhs). Earl, Papuans, p. 83 (Papuans of Dory). Kubary, Die socialen Einrichtungen der Pelauer, p. 74 (Pelew Islanders). Petroff, 'Report on Alaska,' in Tenth Census of the United States, p. 105 (Thlinkets). 3 Laws of Manu, viii. 286. nose, is the whole price of blood; the fine for a member of which there are two and not more, as a hand or a foot, is half the price of blood; the fine for a member of which there are ten, as a finger or a toe, is a tenth of the price of blood.1 The scale of fines for bodily injuries contained in many of the early Teutonic law-books is minute to a degree.2 According to various texts of the Salic law, 100 solidi-that is, a moiety of the wergeld-must be paid for depriving a man of a hand, foot, eye, or the nose; the thumb and great toe were valued at 50 solidi; the second finger with which the bow was drawn, at 35.* With respect to other acts of violence, the fine varied according to several circumstances, as, whether the blow was given with a stick or with closed fist, whether the brain was laid bare, whether certain bones were obtruded and how much, whether blood flowed from the wound on the ground, and so forth. In the Anglo-Saxon codes almost every part and particle of the body, every tooth, toe, and nail, had its price. According to the Laws of Aethelbirht, for instance, twenty shillings were paid for striking off a thumb, three for a thumb nail, eight for the forefinger, eleven for the little finger. In early Celtic law different amounts of injury were taxed with a similar affected precision. Nothing can better give us an idea of the business-like manner in which the whole subject was treated than the Irish law against castration. If the injured persons be people to whom the organs extirpated are of no use, "such as a decrepit old man or a man in orders, there is nothing due to them for the loss of them, but body-fine according to the severity of the wound." 1 Lane, Manners and Customs of the Modern Egyptians, p. 120. Sachau, Muhammedanisches Recht, p. 764. 2 Wilda, Strafrecht der Germanen, p. 729. Stemann, Den danske Retshistorie indtil Christian V.'s Lov, p. 658. Stephen, History of the Criminal Law of England, i. 56. Lappenberg, History of England under the AngloSaxon Kings, ii. 422. 3 Lex Salica, edited by Hessels, coll. 163-167, 170, 172-177, 179. 4 Ibid. col. 100 sqq. 5 Laws of Ethelbirht, 54. 6 Ancient Laws of Ireland, iii. pp. cix., 349. Venedotian Code, iii. 23 (Ancient Laws and Institutes of Wales, p. 151 sqq.). Dimetian Code, ii. 17 (ibid. p. 246 sqq.). Gwentian Code, ii. 6 sq. (ibid. p. 340 sq.), Ancient Laws of Ireland, iii. 355. After this one is almost surprised to read in the ancient laws of Ireland that, when a person had once been maimed, and received part or all of his body-fine, no subsequent wrong-doer could insist that the injured person should be rated as a damaged article.1 However, the degree of the offence depends not only on the suffering inflicted, but on the station of the parties concerned; and in some cases the infliction of pain is held allowable or even a duty. By using violence against their parents, children grossly offend against the duty of filial regard and submissiveness. It is said in the Laws of Hammurabi, that a man who has struck his father shall lose his hands. According to Exodus, "he that smiteth his father, or his mother, shall be surely put to death." 3 In Corea the man who strikes his father is beheaded. On the other hand, parents are allowed to inflict corporal punishment on their children; but this is not the case everywhere—indeed, among many of the lower races children are never, or hardly ever, subject to such punishment. Among the Australian Dieyerie the children are never beaten, and should any woman violate this law, she is in turn beaten by her husband. The Efatese, says Mr. Macdonald, "are shocked to see Europeans correcting their children; I never saw an Efatese beating a child." The Eskimo 1 Ibid. iii. pp. cix., cxi., 349, 351. 4 Griffis, Corea, p. 236. 5 Curr, Recollections of Squatting in Victoria, p. 252 (Bangerang tribe). Angas, Savage Life and Scenes in Australia, i. 94 (tribes of the Lower Murray). Calvert, Aborigines of Western Australia, p. 30 sq. Lumholtz, Among Cannibals, p. 192 sq. (Northern Queensland aborigines). Kubary, 'Die Palau-Inseln in der Südsee,' in Journal des Museum Godeffroy, iv. 56 (Pelew Islanders). Man, Sonthalia and the Sonthals, p. 78. von Siebold, Die Aino auf der Insel Yesso, p. II. Murdoch, Ethnological Results of the Point Barrow Expedition,' in Ann. VOL. I Rep. Bur. Ethn. ix. 417 (Point Barrow Eskimo). Boas, Central Eskimo,' ibid. vi. 566. Richardson, in Franklin, Journey to the Shores of the Polar Sea, p. 68 (Crees). Lumholtz, Unknown Mexico, p. 274 (Tarahumares). Rautanen, in Steinmetz, Rechtsverhältnisse, p. 329 (Ondonga). See also Steinmetz, Ethnologische Studien zur ersten Entwicklung der Strafe, ii. ch. vi. § 2, especially p. 203; Idem, 'Das Verhältnis zwischen Eltern und Kindern bei den Naturvölkern,' in Zeitschrift für Socialwissenschaft, i. 610 sqq. " Gason, Manners and Customs of the Dieyerie Tribe,' in Woods, Native Tribes of South Australia, p. 258. 7 Macdonald, Oceania,. p. 195. L L visited by Mr. Hall never inflict physical chastisement upon the children; "if a child does wrong-for instance, if it becomes enraged, the mother says nothing to it till it becomes calm. Then she talks to it, and with good effect." Among the Tehuelches of Patagonia "the children are indulged in every way, ride the best horses, and are not corrected for any misbehaviour." Among the Gaika tribe of the Kafirs, again, parents may inflict corporal punishment on their children, but are fined for causing permanent injuries to their persons, such as the loss of an eye or a tooth.3 5 The power which the husband possesses over his wife much more commonly implies the right of inflicting pain on her than of punishing her capitally; but even among savages and barbarians the former right is not universally granted to him. The Pelew Islanders do not allow a husband to beat his wife. Among various Eskimo tribes the women are rarely, if ever, beaten. Among the Central Eskimo the husband "is not allowed to maltreat or punish his wife; if he does, she may leave him at any time, and the wife's mother can always command a divorce." Many, or most, of the North American Indians consider it disgraceful for a husband to beat his wife. Among the Kalmucks a man has no right to raise his hand against a woman. Among the Madis women are never beaten." Among the Ondonga a man is not allowed to chastise his wife.10 Among the Gaika tribe of the Kafirs "a husband may beat his wife for misconduct; but if he should strike out her eye or a tooth, or otherwise maim her, he is fined at the discretion of the Chief."" 8 According to the native code of Malacca, "a man may beat his wife, but not as he would chastise a slave, and not till blood flows"; if he should do so, he is fined.1 According to Muhammedan law, a husband may chastise an obstinate wife, but he must not cause her great suffering, nor inflict on her a wound. We read in the Laws of Manu:"A wife, a son, a slave, a pupil, and a younger brother of the full blood, who have committed faults, may be beaten with a rope or a split bamboo, but on the back part of the body only, never on a noble part; he who strikes them otherwise will incur the same guilt as a thief." 3 In Europe the idea expressed by the ancient Roman that "he who beats his wife or children lays hands on that which is most sacred and holy," was shared neither by the ancient Teutons nor by mediæval legislators. According to the Jydske Lov, a husband was allowed to chastise his wife with a stick or rod, though not with a weapon; but he had to take care not to break any limb of her body. In the Coutumes du Beauvoisis it is said that a man may beat his wife if she belies or curses him, or disobeys his "reasonable" commands, or for some other similar reason, though he must not kill or maim her." Among Russian and South Slavonian 8 peasants public opinion still permits the husband to inflict corporal punishment on his wife. In Russia" the bridegroom, while he is leading his bride to her future home, gives her from time to time light blows from a whip, saying at each stroke: 'Forget the manners of thine own 1 Newbold, British Settlements in the Straits of Malacca, ii. 311 sq. 2 Sachau, Muhammedanisches Recht, pp. 10, 44, 849. 3 Laws of Manu, viii. 299 sq. 4 Plutarch, Cato Major, xx. 3. 5 Nordström, Bidrag till den svenska samhällsförfattningens historia, ii. 61 sq. Stemann, op. cit. p. 323 sq. 6 Jydske Lov, ii. 82. 7 Beaumanoir, Coutumes du Beauvoisis, lvii. 6, vol. ii. p. 333: "Il loist bien à l'omme batre se feme, sans mort et sans mehaing, quant ele le meffet; 5 si comme quant ele est en voie de fere 8 Krauss, Sitte und Brauch der Südslaven, p. 526. |