Page:American Journal of Sociology Volume 4.djvu/868

 848 THE AMERICAN JOURNAL OF SOCIOLOGY

The principle of retaliation is a modification of vengeance. "An eye for an eye," etc., expresses an attempt to equalize tfie offense and its repression. The fundamental idea is always the same, viz., that the individual is independent of the community and secures justice for himself.

Yet it is a mistake to think that anarchy reigns in such communities, or that crimes and punishments as such are unknown. Every such society punishes offenses which menace the public safely, although it is indifferent to injuries done to individu- als. Thus murder may go unpunished except by private vengeance, while sorcery, which is a menace to all persons and things, is punished by death. It is only later that society interests itself in acts harmful to individuals. The first step is to take vengeance under its control : the injured person must satisfy certain conditions imposed by society before he is at liberty to avenge himself. But society goes farther than this : it aids the avenger. In case of resistance on the part of the offender, the whole community (as in Polj-nesia) assists the avenger in securing justice. At this point private vengeance becomes equivalent to punishment, or to a social reaction ; the injured person becomes the executor of the punishment which is recognized and guar- anteed by the state. Another step is taken when there are included in the things harmful to society actions which are not directly aimed against its existence. The murderer, for example, is delivered by the law into the hands ot the victim's relatives. In the course of time the state monopolizes the judicial authority and establishes an organ of reaction, the executioner. The right of the offended family to vengeance then gradually disappears.

Private vengeance may also be supplanted by the payment of indemnity. This form of development is in relation with the development of private property, for here cupidity, a passion as strong as revenge, appears. Society is indifferent to these con- tracts, except that in some cases it makes the right of vengeance depend upon the non-payment of indemnity, and forbids the acceptance of a ransom where vengeance plays the role of an equivalent of punishment.

The amount of indemnity was originally determined by the people in assembly, but their action was gradually reduced to a minimum, the chief or some specially appointed persons acting in their stead. But in any case certain rules determined the amount. The need felt for a definitive establishment of this customary law gave rise to written " laws," like the Salic law, which consisted chiefly of a tariff of prices of human flesh. These systems of payment are not the penal law of the country; they are only an enumeration of delicta privata for which society has established compensa- tions to the profit of the injured man. Behind these laws there exists the penal law, properly speaking, including the social reaction. The right of society to punish crime does not arise from a system of composition. Besides the composition, which has a juridico-private character, and which represents only in a slight degree a social reac- tion, we find in every society a distinct penal law which deals with crimes not remis- sible, crimes against the public welfare. Composition is only one of several means which arose to suppress personal vengeance.

The fact that composition has played a greater role in the settlement of conflicts than other means maybe attributed, first, to the fact that it filled better than other means the two essential ends, viz., compensation for the wrong and the termination of the difference ; and, second, to the fact that it was preceded by another institution which developed in an identical manner, viz., the purchase of women, a purchase which was originally nothing else than a money penalty inflicted upon the author of a rape.

III. Social reaction. — 'ioc\3\ reaction may take three forms: (i) public, social, and instinctive vengeance; (2) paternal authority, giving rise to family and tribal jurisdiction; (3) sacerdotal jurisdiction.

I. Social vengeance. — The instinctive reaction of society against a violator of its laws has for a basis the same desire for vengeance that marks the individual reac- tion against wrong. Mass-vengeance is not limited to primitive societies, as lynch law in America testifies. A crowd is a collective individual. Social vengeance, like all vengeance, aims at the destruction of the offender. Exclusion from the community is equivalent to death in primitive societies. Death and exile are therefore two forms of social vengeance. The participation of the people in the execution of the death sen- tence (as among the Hebrews) is a reminiscence of public vengeance. Legally and