Italian Codice Penale, art. 377. Spanish Código Penal reformado, art. 438. Ottoman Penal Code, art. 188.
65 Günther, Idee der Wiedervergeltung, iii. 233 sqq.
66 Code Pénal, art. 324.
67 Foinitzki, loc. cit. p. 548.
Whilst the law referring to self-defence has gradually become more liberal, the law referring to self-redress in the case of adultery has thus, generally speaking, become more severe. The reason for this is obvious. A husband who slays his unfaithful wife or her accomplice does not defend, but avenges himself; and it is to be expected that a society in which punishment has only just succeeded revenge should still admit, or tolerate, revenge in extreme cases. The privilege granted to the outraged husband is not the sole survival of the old system of self-redress lingering on under the new conditions. According to Kafir custom or law, the relatives of a murdered man become liable only to a very light fine if they kill the murderer.68 The ancient Teutons, at a time when their laws already prohibited private revenge, did not look upon an avenger of blood in the same light as an ordinary manslayer;69 and even the Church recognised the distinction.70 Some of the ancient Swedish laws entirely excused homicide committed in revenge immediately after the crime.71 According to the Östgöta-Lag, an incendiary taken in flagrancy might be at once burnt in the fire,72 and ancient Norwegian law permitted the slaying of a thief caught in the act.73 In the Laws of Ine there is an indication that a thief’s fate was at the discretion of his captor,74 and a law of Æthelstan implies that the natural and proper course as to thieves was to kill them.75 In the Laws of King Wihtræd it is said, “If any one slay a layman while thieving; let him lie without ‘wergeld.’ ”76 So also, according to Javanese law, if a thief be caught in the act it is lawful to put him to death.77 For our present purpose it is important to note that all such cases imply a recognition of the principle that an act committed on extreme provocation requires special consideration. To declare that an adulterer or adulteress caught in flagrancy, or a manifest thief, may be slain with impunity, is a concession to human passions, which are naturally more easily aroused by the sight of an act than by the mere knowledge of its commission. It was for a similar reason that the Law of the Twelve Tables punished furtum manifestum much more heavily than furtum nec manifestum;78 and that the Laws of Alfred imposed death as the penalty for fighting in the King’s hall if the offender was taken in the act, whereas he was allowed to pay for himself if he escaped and was subsequently apprehended.79
68 Maclean, op. cit. p. 143. Cf., however, ibid. p. 110.
69 Wilda, op. cit. p. 562. Stemann, op. cit. p. 582 sq.
70 Wilda, op. cit. pp. 180, 565. Labbe-Mansi, Sacrorum Conciliorum collectio, xii. 289.
71 Nordström, op. cit. ii. 414 sq.
72 Ibid. ii. 416.
73 Wilda, op. cit. p. 889.
74 Laws of Ine, 12. Cf. Stephen, op. cit. i. 62.
75 Laws of Æthelstan, iv. 4.
76 Laws of Wihtræd, 25.
77 Crawfurd, op. cit. iii. 115.
78 Institutiones, iv. 1. 5.
79 Laws of Alfred, ii. 7.
The difference between an injury which a person inflicts deliberately, in cold blood, and one which he inflicts in the heat of the moment, under the disturbance of great excitement caused by a wrong done to himself, has been widely recognised. There are instances reported of savages who distinguish between murder and manslaughter. And the laws of all civilised nations agree in regarding, on certain conditions, passion aroused by provocation as a mitigating circumstance at the commission of a crime.
The Australian Narrinyeri, as we have seen, have a tribunal, called tendi, consisting of the elders of the clan, to which all offenders are brought for trial. “In case of the slaying by a person or persons of one clan of the member of another clan in time of peace, the fellow-clansmen of the murdered man will send to the friends of the murderer and invite them to bring him to trial before the united tendies. If, after full inquiry, he is found to have committed the crime, he will be punished according to the degree of guilt. If it were a case of murder, with malice aforethought, he would be handed over to his own clan to be put to death by spearing. If it should be what we call manslaughter, he would receive a good thrashing, or be banished from his clan, or compelled to go to his mother’s relations.”80 In the Pelew Islands, if two natives are quarrelling, and the one says to the other, “Your wife is bad,” the insulted party is entitled to chastise the provoker with a stone, and is not held liable even if the latter should die in consequence.81 The Eastern Central Africans “are aware of the difference between murder and homicide,” even though the punishment of the two crimes is often the same.82 Among the Kandhs only slight compensation is awarded “for wounds, however serious, given under circumstances of extreme provocation.”83 “Valdeyak, or manslaughter,” says Georgi, “is not capital among the Tungusians, when it has been occasioned by some antecedent quarrel. The slayer is however whipped, and obliged to maintain the family of the deceased: he undergoes no reproaches on account of the affair; but on the contrary is considered as a brave and courageous man for it.”84
80 Taplin, ‘Narrinyeri,’ in Woods, Native Tribes of South Australia, p. 34 sq.
81 Kubary, ‘Die Palau-Inseln,’