and in larger communities a difficult, procedure for the whole group to inflict punishments in common, hence the administration of justice naturally tends to pass into the hands of the leading men or the chief. But the establishment of a judicial authority within the society may also have a different origin. Very frequently judicial organisation seems to have developed, not out of a previous system of lynch-law, but out of a previous system of private revenge.
70 Roth, op. cit. p. 141.
An act of individual or family revenge is by itself, of course, an expression of private, not of public, feelings—of revenge, not of moral indignation. But the case is different with the custom of revenge. We shall see in a following chapter that blood-revenge is regarded not only as a right, but, very frequently, as a duty incumbent upon the relatives of the slain person. So, also, revenge may be deemed a duty in cases where there is no blood-guiltiness. Among the Australian Geawe-gal tribe, for instance, the offender, according to the magnitude of his offence, was to receive one or more spears from men who were relatives of the deceased person; or the injured man himself, when he had recovered strength, might discharge the spears at the offender. And our authority adds, “Obedience to such laws was never withheld, but would have been enforced, without doubt, if necessary, by the assembled tribe.”71 The obligatory character of revenge implies that its omission is disapproved of. It is of course the man on whom the duty of vengeance is incumbent that is the immediate object of blame, when this duty is omitted; and the blame may partly be due to contempt, especially when there is a suspicion of cowardice. But behind the public censure there is obviously a desire to see the injurer suffer. Instances may be quoted in which the society actually assists the avenger, in some way or other, in attaining his object. Speaking of the Fuegians, M. Hyades observes:—“Nous avons entendu parler d’individus coupables de meurtre sur leur femme, par exemple, et qui, poursuivis par tout un groupe de familles, finissaient, quelquefois un an ou deux après leur crime, par tomber sous les coups des parents de la victime. Il s’agit là plutôt d’un acte de justice que d’une satisfaction de vengeance. Nous devons faire remarquer en outre que, dans ces cas, le meurtrier est abandonné de tous, et qu’il ne peut se soustraire que pendant un temps relativement assez court au châtiment qui le menace.”72 Amongst the Central Eskimo, who have “no punishment for transgressors except the blood vengeance,” a man has committed a murder or made himself odious by other outrages, “he may be killed by any one simply as a matter of justice. The man who intends to take revenge on him must ask his countrymen singly if each agrees in the opinion that the offender is a bad man deserving death. If all answer in the affirmative he may kill the man thus condemned, and no one is allowed to revenge the murder.”73 Among the Greenlanders, in cases of extreme atrocity, the men of a village have been known to make common cause against a murderer, and kill him, though it otherwise is the business of the nearest relatives to take revenge.74 It is also noteworthy that, among the crimes which in savage communities are punished by the community at large, incest is particularly prominent. The chief reason for this I take to be the absence of an individual naturally designated as the avenger.
71 Fison and Howitt, op. cit. p. 282.
72 Hyades and Deniker, Mission scientifique du Cap Horn, vii. 240 sq.
73 Boas, ‘Central Eskimo,' in Ann. Rep. Bur. Ethn. vi. 582.
74 Nansen, Eskimo Life, p. 163.
Thus public indignation displays itself not only in punishment, but, to a certain extent, in the custom of revenge. In both cases the society desires that the offender shall suffer for his deed. Strictly speaking, the relationship between the custom of revenge and punishment is not, as has been often supposed, that between parent and child. It is a collateral relationship. They have a common ancestor, the feeling of public resentment.
But whilst public opinion demands that vengeance shall be exacted for injuries, it is also operative in another way. Though in some cases the resentment may seem to outsiders to be too weak or too much checked by other impulses, it may in other cases appear unduly great. As a matter of fact, we frequently find the practice of revenge being regulated by a rule which requires equivalence between the injury and the suffering inflicted in return for it. Sometimes this rule demands that only one life shall be taken for one;75 sometimes that a death shall be avenged on a person of the same rank, sex, or age as the deceased;76 sometimes that a murderer shall die in the same manner as his victim;77 sometimes that various kinds of injuries shall be retaliated by the infliction of similar injuries on the offender.78 This strict equivalence is not characteristic of resentment as such.79 There is undoubtedly a certain proportion between the pain-stimulus and the reaction; other things being equal, resentment increases in intensity along with the pain by which it is excited. The more a person feels offended, the greater is his desire to retaliate by inflicting counter-pain, and the greater is the pain which he desires to inflict. But resentment involves no accurate balancing of suffering against suffering, hence there may be a crying disproportion between the act of revenge and the injury evoking it.80 As Sir Thomas Browne observes, a revengeful mind “holds no rule in retaliations, requiring too often a head for a tooth, and the supreme revenge for trespasses, which a night’s rest should obliterate.”81 If, then, the rule of equivalence is not suggested by resentment itself, this rule must be due to other factors, which intermingle with resentment, and help, with it, to determine the action. One of these factors, I believe, is self-regarding pride, the desire to pull down the humiliating arrogance of the aggressor naturally suggesting the idea of paying him back in his own coin; and it seems probable that the natural disposition to imitate, especially in cases of sudden anger, acts in the same direction. But besides this qualitative equivalence between injury and retaliation, the lex talionis requires, in a rough way, quantitative equivalence, and this demand has no doubt a social origin. If the offender is a person with whose feelings men are ready to sympathise, their sympathy will keep the desire to see him suffer within certain limits; and if, under ordinary circumstances, they tend to sympathise equally with both parties, the injurer and the person injured, and, in consequence, confer upon these equal rights, they will demand a retaliation which is only equal in degree to the offence. By suffering a loss the offender compensates, as it were, for the loss which he has inflicted; and when equal regard is paid to his feelings and to those of his victim, it is deemed just that the loss required of him as a compensation should be equivalent to the loss for which he compensates, anything beyond equivalence being regarded as undeserved suffering. If this explanation is correct, the rule of equivalence must originally have been restricted to offences within the social group; for, according to early custom and law, only members of the same society have equal rights. In speaking of the tit-for-tat system prevalent among the Guiana Indians, Sir E. F. Im Thurn expressly says, “Of course all this refers chiefly to the mutual relations of members of the same tribe.”82 And when we find savages acting according to the same principle in their relations to other tribes, the reason for this may be sought partly in the strong hold