Page:The Green Bag (1889–1914), Volume 16.pdf/640

 The Penal Laws of Savage Races.

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THE PENAL LAWS OF SAVAGE RACES. BY ANDREW T. SIBBALD. IN legal customs analagous to those of the savage, or rather semi-civilized world, the legal institutions of civilized countries, their methods of procedure, of extorting truth, of punishing crimes seem to have their root Similar interest attaches to the legal institu tions of modern savages as attaches to the laws of the ancient Germanic tribes; the inter est, that is, of descent or relationship. The oath, for instance, of our law courts, presupposes in the past, if not in the present, precisely the same state of thought as the oath customary in Samoa; and the same vir tue inherent in touching and kissing the Bible leads the Tunguse Lapp to touch and then kiss the cannon, gun, or sword, by which he swears allegiance to the Russian crown. The Highlander also, of olden time, kissing his dirk, to invoke death by it if he lied, is a similar instance of the survival of the primitive conception that physical con tact with a thing creates a spiritual depend ence upon it. The ordeal, the judicial test of witchcraft, still retains a foothold of faith among the English country people, as is proved by the fact that in 1863, an octo genarian died in consequence of having been "swum" as a wizard at Little Hedingham, in Essex. Then in the English law no person could inherit an estate from anyone con victed of treason, or from a suicide, which shows how naturally the savage law of col lective responsibility, in reality so unjust, may survive into times of civilzation, whilst the ignominy still attached to the blood rela tions of a criminal shows with what difficulty the feeling is eradicated. If, then, the original standard of punish ment was just that amount of severity which would suffice to prevent individuals seeking satisfaction by their private efforts, and avenging their own wrongs, it is intelligible that penal customs should be cruel in pro

portion to their primitiveness. It is distinctly stated that in Samoa fines in food and prop erty gradually superseded more severe penal ties. Yet, in the face of the greatly varying penalties found in very different conditions of culture, it is a subject on which it is diffi cult to lay down any rule. Sometimes mur der alone is a capital crime, sometimes theft, witchcraft, and adultery as well; sometimes all or some of them are commutable by fine. Nor does it seem that, wherever an offence is punishable by fine, the penalty has been mitigated from one originally more severe. In some cases, the chief judges may have found it to their interest in assessing a more humane, and to themselves a more profitable, forfeit than that of life or limb; but savages living in the most primitive conditions seem to have been led by their natural reason alone to observe fitting proportions between crime and retaliation. For their punishfrients, in default generally of imprisonment or banishment, are not as a rule gratuitously cruel; and slavery, so common a punishment in Africa, far from being essentially cruel, is rather a sign of an amelioration of manners, of willingness to take the useful satisfaction of a man's labor in lieu of the useless one of his life. It would, indeed, seem that the severity of the penal code is rather a con comitant of growth in civilization, of stronger and deeper moral feelings, of a sense of the failure of milder means, than of a primitive savagery. On the whole continent of America no savage tribe ever approached the Aztecs in cruelty of punishment, nor is it with people like the Mandans that we should ever find a death punishment assigned alike for the lightest as well as for the gravest crimes. It would be erroneous to suppose, because the laws of savages are unwritten or depend on usage alone for their preservation, that there