sometimes falls on a relative of the culprit in cases when he himself cannot be caught. In Fiji, says Mr. Williams, “the virtue of vicarious suffering is recognised.” It once happened that a warrior left his charged musket so carelessly that it went off and killed and wounded some individuals, whereupon he fled himself. His case was judged worthy of death by the chiefs of the tribe, and the offender’s aged father was in consequence seized and strangled.107
107 Williams and Calvert, Fiji, p. 24.
In other cases an innocent person is killed for the offence of another, not because the offender cannot be seized, but with a view to inflicting on him a loss, according to the rule of like for like. The punishment, then, is meant for the culprit, though the chief sufferer is somebody else. According to the Laws of Ḫammurabi, “if a builder has built a house for a man and has not made strong his work, and the house he built has fallen, and he has caused the death of the owner, that builder shall be put to death.” But “if he has caused the son of the owner of the house to die, one shall put to death the son of that builder.”108 Similarly, “if a man has struck a gentleman’s daughter and caused her to drop what is in her womb, he shall pay ten shekels of silver for what was in her womb.” But “if that woman has died, one shall put to death his daughter.”109 The following custom which Mr. Gason reports, as existing among the Australian Dieyerie, in case a man should unintentionally kill another in a fight, is probably based on a similar principle:—“Should the offender have an elder brother, then he must die in his place; or, should he have no elder brother, then his father must be his substitute; but in case he has no male relative to suffer for him, then he himself must die.”110
108 Laws of Ḫammurabi, 229 sq.
109 Ibid. 209 sq.
110 Gason, ‘Manners and Customs of the Dieyerie Tribe,’ in Woods, Native Tribes of South Australia, p. 265.
This extreme disregard of the suffering of guiltless persons is probably not so much due to downright callousness as to a strong feeling of family solidarity. The same feeling is very obvious in those numerous instances in which both the criminal himself and members of his family are implicated in the punishment.
Among the Atkha Aleuts, the punishment for certain offences was sometimes carried so far as to include the wife of the offender.111 Among the Ew̔e-speaking peoples of the Slave Coast, “a person found guilty of having procured, or endeavoured to procure, the death of another through the agency of the gods Huntin and Loko, is put to death, and his family is generally enslaved as well.”112 Among the Matabele, if a person is declared by the witch-doctor to have caused injury to somebody else by making charms, he “is immediately put to death, his wife and the whole of his family sharing his fate.”113 Among the Shilluks of the White Nile, “murder is punished with death to the criminal and the forfeiture of wives and children to the Sultan, who retains them in bondage.”114 Among the Kafirs, in cases of trespasses against the king, the sentence falls not only on the individual, but on his whole house.115 In Madagascar, the code of native laws, up to recent time, reduced for many offences the culprit’s wife and children to slavery.116 In some parts of the Malay Archipelago, according to Crawfurd, a father and child are considered almost inseparable, hence when the one is punished the other seldom escapes.117 In Bali, the law prescribes that for certain kinds of sorcery the offender shall be put to death. It adds, “If the matter be very clearly made out, let the punishment of death be extended to his father and his mother, to his children and to his grand-children; let none of them live; let none connected with one so guilty remain on the face of the land, and let their goods be in like manner confiscated.”118
111 Petroff, ‘Report on Alaska,’ in Tenth Census of the United States, p. 158.
112 Ellis, Ew̔e-speaking Peoples of the Slave Coast, p. 225.
113 Decle, Three Years in Savage Africa, p. 153.
114 Petherick, Travels in Central Africa, ii. 3.
115 Ratzel, History of Mankind, ii. 445.
116 Sibree, The Great African Island, p. 181. Ellis, History of Madagascar, i. 174, 175, 193.
117 Crawfurd, op. cit. i. 82.
118 Ibid. iii. 138.
The Chinese doctrine of responsibility is to a great extent based upon family solidarity; in great crimes all the male relatives of the offender are held responsible for his deed. Every male relative, of whatever degree, who may be dwelling under the roof of a man guilty of treason, is doomed to death, with the exception of young boys, who are allowed their lives, but on the condition that they are made eunuchs for service in the imperial palace.119 In ancient Mexico, traitors and conspirators were not only themselves killed, but their children and relatives were made slaves to the fourth generation.120 According to an Athenian law, a man who committed sacrilege or betrayed his country was banished with all his children.121 Aristotle mentions a case of sacrilege in which “the bones of the guilty dead were disentombed and cast beyond the borders of Attica; the living clan were condemned to perpetual exile, and the city was subsequently purified.”122 The Macedonian law involved in punishment the kindred of conspirators against the monarch.123 Dionysius of Halicarnassus states that some of the Greeks “think it reasonable to put to death the sons of tyrants together with their fathers, whereas others punish them with perpetual banishment”; and he contrasts this with the Roman principle that “the sons shall be exempted from all punishment, whose fathers are offenders, whether they happen to be the sons of tyrants, of parricides, or of traitors.”124 But after the end of the Marsic, and civil wars, this rule was transgressed;125 and later on Arcadius, though expressly ordaining that the punishment of the crime shall extend to the criminal alone,126 took a different view of the punishment