in the dangers accompanying intertribal revenge, which make it desirable to restrict it within reasonable limits.
75 Krause, Tlinkit-Indianer, p. 245 sq. Macfie, Vancouver Island and British Columbia, p. 470. Foreman, Philippine Islands, p. 213 (Negrito and Igorrote tribes in the province of La Isabela). Low, Sarawak, p. 212 (Dyaks). von Langsdorf, Voyages and Travels, i. 132 (Nukahivans).
76 Jagor, Travels in the Philippines, p. 213 (Igorrotes). Blumentritt, quoted by Spencer, Principles of Ethics, i. 370 sq. (Quianganes of Luzon). Munzinger, Ostafrikanische Studien, p. 243 (Marea). Koran, ii. 173.
77 von Martius, op. cit. i. 129 (Brazilian Indians). Wallace, Travels on the Amazon, p. 499 (Uaupés). Schoolcraft, Indian Tribes of the United States, iii. 246 (Dacotahs). Steller, Kamtschatka, p. 355; Hickson, A Naturalist in North Celebes, p. 198 (Sangirese of Manganitu). Fraser, Journal of a Tour through Part of the Himālā Mountains, p. 339 (Butias). Ellis, History of Madagascar, i. 371. Munzinger, op. cit. p. 502 (Barea and Kunáma). de Abreu, Canary Islands, p. 27 (aborigines of Ferro).
78 Im Thurn, op. cit. p. 213 sq. (Guiana Indians). Glimpses of the Eastern Archipelago, p. 86 (Bataks). Arbousset and Daumas, Tour to the North-East of the Colony of Good Hope, p. 67 (Mantetis). Munzinger, op. cit. p. 502 (Barea and Kunáma). Post, Afrikanische Jurisprudenz, p. 27 (various other African peoples), de Abreu, op. cit. p. 71 (aborigines, of Gran Canaria).
79 Cf. Tissot, Le droit pénal, i. 226; Steinmetz, Ethnol. Studien zur ersten Entwicklung der Strafe, i. 401; Makarewicz, op. cit. p. 13.
80 von Martius, op. cit. i. 128 (Brazilian aborigines). Calder, in Jour. Anthr. Inst. iii. 21 (Tasmanians). Forbes, A Naturalist’s Wanderings in the Eastern Archipelago, p. 473 (Timorese). Sarasin, Forschungen auf Ceylon, iii. 539 (Veddahs). Jacob, Das Leben der vorislâmischen Beduinen, p. 144 sq.
81 Browne, Christian Morals, iii. 12, p. 94.
82 Im Thurn, op. cit. p. 214.
The regulations to which the practice of revenge is subject, help us to understand the transition from revenge to punishment, and the establishment of a special judicial authority. As long as retaliation is in the hands of private individuals, there is no guarantee, on the one hand, that the offender will have to suffer, on the other hand, that the act of retaliation will be sufficiently discriminate.
The injured party may be too weak, or otherwise unable, to avenge himself. His readiest course, then, is to appeal to the chief for help. The chief, on his part, has an interest in interfering—he may of course expect a handsome reward for his assistance,83—and, in so far as the community at large wishes that the offender shall suffer, the chief may even be bound to interfere. Thus in the Sandwich Islands, the family or the friends of an injured person—who in cases of assault or murder were by common consent justified in taking revenge—used to appeal to the chief of the district or to the king, when they were too weak to attack the offender themselves.84 Among the Wanyoro, according to Emin Pasha, should the murderer escape, the nearest relatives of the murdered man apply to the chief of the tribe to procure the punishment of the culprit.85 The Indians of Brazil, when offended, sometimes bring their cause before the chief; but they do it seldom, since they consider it disgraceful for a man not to be able to avenge himself.86 The judicial authority granted to the Basuto chief “also insures justice to foreigners, and to individuals who, having no relations, are deprived of their natural defenders and avengers.”87 In ancient Greece, in early times, special care was taken by the State for the protection of the weak and helpless, who otherwise had been unavenged.88 In the Middle Ages, the poor and the weak were placed under the King’s protection; the intervention of royal justice, as Du Boys observes, “apparaissait comme un bienfait pour les faibles et un secours pour les opprimés.”89
83 Steinmetz, Rechtsverhältnisse, p. 311. Cf. Brunner, Deutsche Rechtsgeschichte, i. 165.
84 Ellis, Tour through Hawaii, p. 429.
85 Emin Pasha in Central Africa, p. 86.
86 von Martius, op. cit. i. 132.
87 Casalis, op. cit. p. 226.
88 Leist, Græco-italische Rechtsgeschichte, p. 372.
89 Du Boys, Histoire du droit criminel de l’Espagne, p. 237.
Whilst resentment on behalf of injuries inflicted upon persons who are unable to avenge themselves has thus, to some extent, contributed towards the establishment of a central judicial and executive authority, the sympathy naturally felt for the object of an improper and immoderate revenge undoubtedly tended to bring about a similar result. The same feeling which checked indiscriminate revenge by establishing the rule of strict equivalence, restricted it once more, and in a more effective way, by referring the case to a judge who was less partial, and more discriminate, than the sufferer himself or his friends. Speaking of the feuds of the Teutons, Kemble remarks, “Setting aside the loss to the whole community which may arise from private feud, the moral sense of men may be shocked by its results: an individual’s own estimate of the satisfaction necessary to atone for the injury done to him, may lead to the commission of a wrong on his part, greater than any he hath suffered; nor can the strict rule of ‘an eye for an eye, and a tooth for a tooth,’ be applied where the exaction of the penalty depends upon the measure of force between appellant and defender.”90 In the Island of Bali the judge steps in between the prosecutor and the person whom he pursues, “so as to restrain the indiscriminate animosity of the one, and to determine the criminality of the other.”91 Crawfurd, in his account of native customs in the Malay Archipelago, says that “the law even expressly interdicts all interference when there appears a character of fairness in the quarrel.”92 A Karen, we are told, always thinks himself right in taking the law into his own hands, this being the custom of the country, and “he is never interfered with, unless he is guilty of some act contrary to Karen ideas of propriety, when the elders and the villagers interfere and exercise a check upon him.”93