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Folkways, by William Graham Sumner
A Study of the Sociological Importance of Usages,
Manners, Customs, Mores, and Morals
CHAPTER XIII
KINSHIP, BLOOD REVENGE, PRIMITIVE JUSTICE, PEACE UNIONS
Kinship. — Forms of kinship. — Family education. — Kinds of kinship. — How family mores are formed. — Family and marriage. — Goblinism and kinship; blood revenge. — Procreation; forms of the family. — Notions about procreation and share in it. — Blood revenge and the in-group — Institutional ties replace the blood tie. — Peace in the in-group. — Parties to blood revenge. — Blood revenge in ethnography. — Blood revenge in Israel. — Peace units and peace pacts. — The instability of great peace unions. — The Arabs. — The development of the philosophy of blood revenge. — Alleviations of blood revenge. — The king's peace. — The origin of criminal law.
534. Kinship. Kinship is a fact which, in the forms of heredity and race, is second to none in importance to the interests of men. It is a fact which was concealed by ignorance from primitive men. It is yet veiled in much mystery from us. Nevertheless the notion of kinship was one of the very first notions formed by primitive men as a bond of association, and they based folkways upon their ideas about it. They deduced the chief inferences and handed the whole down to succeeding generations. Therefore the assumed knowledge of the facts of kinship was used as the basis of a whole series of societal conventions. The first construction was the family, which was a complete institution. Of course marriage was a relationship which was controlled and adjusted by the family ideas. From the folkways as to kinship all the simplest conceptions of societal rights and duties were derived, societal institutions were constructed, and societal organization has grown up.
535. Forms of kinship. That a certain child was born of a certain woman, after having been for some time in physical connection with her body, is an historical and physical fact. That 494another child was born of the same mother is another fact, of the same order. It may be believed that these facts produce permanent life relations between the mother and children, and between the children, or it may be believed that the facts have no importance for duties, interests, or sympathies. The relations, if recognized, may be defined and construed in many different ways and degrees. They could also be carried further by including more generations, or wider collateral branches, until kinship would include a sib, or family in the widest sense, — those related within some limit of descent and cousinship on a system decided on (mother family, father family, etc.) and traditional. Kinship is purely matter of fact and history, and therefore rational. There is no "natural affection." There is habit and familiarity, and the example and exhortations of parents may inculcate notions of duty. Sentiments and sympathies will then be produced out of familiarity in life, or out of use and wont. The construction and limits of kinship in any society are products of the folkways, or — inasmuch as the system is built up with notions of welfare and rights and duties — of the mores. In fact, since the folkways in regard to this matter begin at a very primitive stage of human life, run up to the highest civilization, and are interwoven with the most tender sympathies and ethical convictions at all stages, kinship is one of the most important products of the folkways and mores. It is, in fact, the most important societal concept which the primitive man thought out, and it would be such even if we were now compelled to reject it as erroneous.
536. Family education. No doubt the folkways about kinship are produced in connection with views about interests, and in connection with faiths about procreation, and impressions produced by experience. The mother and children live in constant contact and intimacy. The family grows into an institution which takes its nature from the traditional and habitual behavior of its members to each other in daily life. Use and wont have here a great field for their constructive operation. Each family (mother and children) is independent and makes its own world, in which nearly all its interests are enfolded. There are constantly recurring occasions for acts of a reciprocal character, and such acts 495especially build up institutions. The family is also an arena in which sympathies are cultivated, which does not mean that they are always nourished and developed. Habits are formed and discipline is enforced. Rules are accepted from custom and enforced by authority and force. Rights and duties are enforced as facts long before they are apprehended as concepts.
537. Kinds of kinship. The sib, or large family, including all those who are known to be related at all, is a group of very varying importance in different societies. In some societies the common bond is strong and produces important social consequences. In other cases no heed is paid to relationship beyond first and second cousins. Although the Yakuts keep up the rod, or great family, for some purposes, we are told that often "nothing unites the members of the rod but a vague tradition of common descent."1720 Whether individuals can break the ties of kin, by voluntary act, is answered differently in different societies. The Salic Franks allowed a man to do it by breaking his staff (which was his personal symbol) in a ceremonial act.1721 If kinship depends on connection of the body of the child with that of the mother, his nourishment by her milk is another ground of kinship. The Arabs recognize this tie of a child to its foster mother. Later the child is nourished by food shared with commensals. Hence the tie of commensality forms a basis of social union like kinship.1722
538. How mores are formed. The family groups which are in local neighborhood have, in general, the same folkways as an inheritance, but variations occur from varieties of character and circumstances. The variations are life experiments, in fact, and they lead to selection. In the community as a whole the mores of family life are selected, approved, and established, and then handed down by tradition. It may be believed that there is a common interest of the entire larger group in the education and treatment of children, and that all the adults recognize that interest more or less completely. The big group, therefore, molds 496notions of consanguinity, and the sanctions of tribal authority and public opinion coerce all to observe the modes of family life which the ruling authority thinks most expedient for the group interests.
539. Family and marriage. The family institution must have preceded marriage. In fact, marriage appears, in ethnography and history, as the way of founding a family and as molded by the family mores existing in the society.
540. Goblinism and kinship. Blood revenge. Integration of kin relations was produced by goblinism. This furnished an interest which impelled to development of the kin idea. If a man was murdered, his ghost would seek revenge, just as a man while alive would have sought revenge for a smaller injury. The ghost was dangerous to two persons or classes of persons, the murderer and those near the corpse. The latter would be, almost always, his kinsmen. It behooved the latter, therefore, if they wanted to appease the ghost and save themselves, to find the murderer and to punish him. Hence the custom of blood revenge. It was not due to kin notions, but to goblinistic notions. Kin only defined those who came under the obligation. In this way kin became a tie of mutual offense, defense, and assistance, and kin groups were formed into societies, — we-groups or in-groups, — inside of which there was comradeship, peace, law, and order, while the relation to all out-groups was one of suspicion, hostility, plunder, and subjugation if possible. The primary notion of kin was embodied in formulæ about blood, — which were only figures of speech, — which have come down to us, so that propositions about blood are used now to express our notions of kinship, heredity, etc. In fact, according to modern embryology, not a drop of blood passes from either parent to the offspring. Superstitions about blood (seat of the soul or life, etc.) helped to develop the notion of kin. The primitive idea is that the ghost of a murdered man can be appeased only by blood. The blood of Abel cried unto God from the ground. Some peoples go out to kill anything, in order that blood may be shed and so the ghost may be satisfied.
541. Procreation. Forms of the family. The notion of kin was so elastic that various conceptions of procreation have been 497grafted upon it, and various ways of organizing the family, or of reckoning kinship, have been connected with it. Mores grow upon the notions of kinship. They dictate modes of behavior and ideas of right and duty, and train all members of the society in the same. The relation of father and child is known to few persons, perhaps only to two. Kinship through the father, therefore, seems to uncivilized people far less important than kinship through the mother. When the father relationship is regarded as the real tie and is made the norm of kin groups, great changes are produced in the mores of the mother family.
542. Notions about procreation and share in it. It is difficult to see how savage men could have got any idea of procreation. The ethnographical evidence is that they have no idea, or only a most vague and incorrect idea, of the functions of the parents. The Australians think that an ancient spirit enters into a baby at birth, enlivens it, and is its fate. This notion interferes with ideas of sexual conception. So we are told that the Dieyerie women do not admit that a child has only one father, and say that they do not know whether the husband or the pirauru is the father.1723 The highest tribes in Australia say that "the daughter emanates from her father solely, being only nurtured by her mother."1724 The father, however, is always known or assumed. How else could the father move up one grade in tribal position when the boy is initiated?1725 Amongst several tribes of central Australia it is believed that "the child is not the direct result of intercourse, that it may come without this, which merely, as it were, prepares the mother for the reception and birth of an already formed spirit child who inhabits one of the local totem centers."1726 Melanesian women feel severely the strain of child rearing. They seem to have less love for the children than the fathers have. They often kill the babes. If an unmarried girl becomes pregnant, she says that some man who hates her got the help of spirits, who caused her situation.1727 The Indians in British Columbia think that a woman conceives by eating, and this belief is introduced into their folk tales.1728 The rules about the food of women are often connected with notions about sex relations and procreation. The Seri of California thought that fire is bestial, not physical, and is produced similarly to sexual reproduction.1729 In ancient Greece "the inferiority of women to men was strongly asserted, and it was illustrated and defended by a very curious physiological notion that the generative power belonged exclusively to men, women having only a very subordinate part in 498the production of their children."1730 This notion is expressed in the Eumenides, where it is said to lessen the crime of Orestes. His mother did not generate him. She received and nursed the germ. In Islam this same opinion prevails. It is a father family doctrine, exactly opposite to that of the mother family, where the function of the mother was thought far more important.1731 It is a good example of the way in which the philosophy follows the view taken in the mores of the leading interest.
543. Blood revenge and the in-group. Blood revenge is out of place in the in-group. It would mean self-extermination of the group. It would serve the interests of the enemies in the out-groups. Hence the double interest of harmony and coöperation in the in-group and war strength against the out-groups forces the invention of devices by which to supersede blood revenge in the in-group. Chiefs and priests administered group interests, especially war and other collisions with neighbors, and they imposed restraints, arbitration, or compensation in internal quarrels. Cities of refuge and sanctuaries secured investigation and deliberation to prove guilt and determine compensations. The chiefs and priests thus modified or set aside kin law by inchoate civil forms. Then criminal law and penalty took the place of retaliation. Between groups blood revenge was only a detail of the normal relations of hostility and violence. Out-groups, however, sometimes made agreements with each other to limit blood revenge and vendetta. White men have had trouble with red men and black men because their customs as to relationship were not on the same level. The whites in New York and Pennsylvania colonies could not understand why the Indians were indifferent to their demands for the surrender of an Indian who, in time of peace, had killed a white man. According to Indian ideas the bloodshedding did not concern the civil body (tribe), but the kin group (clan).1732 A wife was not included in blood revenge. Her relation to her husband was not one of "blood." It was institutional. Therefore it was not so strong as the tie of sister to brother by the same mother.
544. Institutional ties replace the blood tie. In the history of civilization several institutional ties have become stronger than 499the blood tie, but the primitive man, who has not yet accepted any tie as equal to the blood tie, always resists this change. Kinship was lost by separation, and fire superseded it as a bond of association. Fire being kept and lent became a unifying force, because, in effect, all united in a common effort to get and keep it.1733 Common religion (sacrifices) also became a bond of union. The common sacrifices at Upsala held the scattered Swedes in unity, and served also as a peace bond, although not a sufficient one.1734 It is said also of the Brahuis, in Baluchistan, that the two bonds which unite the confederacy are common land and common good and ill, "which is another name for common blood feud."1735 Changes in the numbers in the group, or in life conditions, make some other element more important than kin. Then that element becomes the societal bond. Then the folkways, ideas, and sentiments change to adapt themselves to the new center of interest. Throughout the Occident the institutional tie of man and wife is rated higher than any tie of kinship.
545. Peace in the in-group. Government, law, order, peace, and institutions were developed in the in-group. So far as sympathy was developed at all, it was in the in-group, between comrades. The custom of blood revenge was a protection to all who were in a group of kinsmen. It knit them all together and served their common interest against all outsiders. Therefore it was a societalizing custom and institution. Inside the kin-group adjudication, administration of justice by precedents and customs, composition for wrongs by payments or penalties, amercements by authority for breach of orders or violations of petty taboo, and exile took the place of retaliation. In the in-group it was the murderer who had to fear the ghost of the murdered. Religious rites absolved the murderer from the ghosts or gods and delivered him from the furies, who demanded revenge. The Hebrew law provided cities of refuge for those who were guilty of accidental homicide.1736 The manslayer could go home at the death of the high priest.1737 In 2 Sam. iii and iv are cases of blood revenge 500and of efforts to suppress it. The homicide in chapter iv is not a case of blood revenge but of partisan murder.
546. Parties to blood revenge. It was a very serious modification of blood revenge when it was extended so that any kinsman of the murdered man was bound to kill any kinsman of the murderer. Hagen1738 says: "No regulated societal common life is possible where blood revenge is in full operation; not even on the primitive stage of the Bogjadim state," a village in German New Guinea. This is true if blood revenge is allowed in the in-group, or if the in-group has very low integration, for blood revenge sets every man against his neighbor and makes society impossible. Krieger1739 says of the same people: "The comradeship of clansmen with each other in respect to their attitude towards out-groups is most definite in blood revenge during the stage between the kin-group organization and the lowest state organization." If a nation stops in that stage, or even degenerates a little, blood revenge becomes a symptom of a state of societal disease. It becomes firmly fixed, is elaborated, continues beyond the stage of other things at which it can be useful, and, as an institution, becomes a caricature. What is lacking is an authority which can impose commands on the in-group and extrude blood revenge from it. The Naga, in northeastern India, fifty years ago lived in villages in which, if two men quarreled, all the others took sides with one or the other and civil war ensued. The experience of these quarrels and of blood revenge produced "a reluctance to enter into quarrels which entailed consequences so disastrous, and hence a society living in general peace and honesty." The situation, however, was unstable, and once or twice a year they had grand fights in which the entire village participated by way of clearing off all old scores. Evidently they had no adequate government or administration of justice. Revenge is still, in case of a murder, "a sacred duty, never to be neglected or forgotten," although English rule has modified the old usages and may bring those people into a better political organization. Revenge is still a kin affair, not a civil affair. It is handed down from generation to generation, 501including innocent victims, women and children, and devastating whole villages. It becomes fanatical and men will sacrifice their most serious interests to it. If the male kinsmen die out or are unable to keep up the feud, others may be hired to fulfill the duty.1740
547. Blood revenge in ethnography. The Eskimo have no civil organization outside of the family. All justice depends on the immediate coercion of wrongdoers by force. Hence death often results. Retaliation is the sacred duty of every kinsman.1741 That the deceased was in the wrong is quite immaterial. Blood revenge was almost universal amongst the American aborigines. In some tribes the stage had been reached where it was set aside by compensation.1742 Amongst the Brazilian tribes it was a question to be decided in each case whether retaliation should be executed against the wrongdoer only or against all his kin.1743 The Arawaks practiced blood revenge, like nature peoples, as late as 1830. Generally the cases were those of jealousy and adultery.1744 The Australians of Victoria kill the elder brother of a murderer or his father. If these are not living they kill him. He is not allowed to defend himself. In some tribes the nearest relative of the murdered must take the life of a tribesman of the murderer. All deaths are attributed to human agency, and it is ascertained by divination to what tribe the murderer belonged. Public opinion enforces the duty of blood revenge. Any one who should neglect it would be despised.1745 The Dyaks keep an account current of the number of lives which one tribe "owes" to another. The hill Dyaks, whose wars are constant and bloody, are very scrupulous about this account of heads due. They are more so than the sea Dyaks, who have perhaps been influenced by contact with outside peoples.1746 Amongst the Ewe-speaking peoples of West Africa1747 a family is collectively responsible for crimes and wrongs of which any one of its members is guilty, and each one is assessed for his share of the composition to be paid. Each member of a family also gets his share of any payment paid to it for wrongs to its members. Ellis says that formerly the village was the collective unit for paying or receiving compensation. This is noteworthy because, in general, composition by payment is later than the custom of equal retaliation, while civil units come later than kin units as the collective units which are responsible. The Somali attribute the duty of blood 502revenge to the kin, not to the tribe. They have a tariff for bodily injuries less than murder, and for age and sex. The blood money goes to the kin. Blood revenge is executed against any kinsman of the murderer. The Galla do not accept compensation for blood guilt, "no doubt on account of the density of population."1748 In the Eumenides of Æschylus it is said (line 520), "Not all the wealth of the great earth can do away with blood guilt." In Japan blood revenge continued until very recently. The person who meant to seek it had to give notice in writing to the criminal court. He was then free to execute his purpose, but he must not make a riot. The Japanese father family is a religious corporation, and the family bond is that of a cult.1749 The Japanese view is the half-civilized view, where the kin sentiment is highly developed and the civil interest is only imperfectly apprehended. In Scandinavia the feeling that it is base to take compensation for blood continued until a late time. We find in the saga of Grettir the Strong1750 that banishment is used instead of blood revenge. This was thought to be a letting down of honor. Life and honor as well as property were under the protection of kin. Blood revenge was a holy duty. The son could not take his inheritance until he had avenged his father. Attempts were made to introduce the weregild. The fine for killing an old man or a woman was twice as much as for an able-bodied man. The slayer with twelve of his kin must swear that he would be content with the payment if the case were his, and the friends of the deceased must swear to let the matter drop.1751 Amongst the tribes of the Caucasus, who live by custom, blood revenge is now a living institution. The Ossetes have the father family in its extremest development. The surname is the mark of kinship, and the duty of blood revenge falls on those with the same surname to the hundredth cousin. One's mother's brother is not in one's kin, and there is no duty of blood revenge for him. Sometimes blood revenge is superseded by the arbitration of a tribunal which is voluntarily accepted.1752
548. Blood revenge in Israel. The law of Israel was, "Ye shall take no ransom for the life of a manslayer, which is guilty of death; but he shall surely be put to death."1753 This law upheld blood revenge by forbidding the first and most obvious alleviation of it, but verses 22 and 23 distinguished accidental from intentional homicide and verse 27 provided that the avenger of blood should not be guilty of blood. This arrested any feud. The institution of cities of refuge was derived from the Canaanites and developed in Israel.1754 Blood revenge was a duty of the whole family and was originally directed against the entire family of the slayer.1755 This the later law forbade.1756 At first also every beast or inanimate object which caused 503death was guilty. In Deut. xxi provision is made for the case of a murdered man whose corpse is found, with customs of wide range for performing rites of purification, and washing hands to put away guilt or suspicion.
549. Peace units and peace pacts. The in-group when it is merged in a state by conquest and compounding becomes a peace unit. All in the same civil body are united by a peace pact. If the central authority cannot suppress local war and private war, it is inadequate, and the state is liable to disruption. The Roman empire was a peace unit of high integration and complete efficiency. It could not, however, maintain itself, and broke up by internal strife which the central authority could not suppress. The Roman law was the peace pact of that peace unit. It was so good a solution of the collisions of human interests that it has been borrowed, or used by modern states as a model. The Romish church in the Middle Ages tried to rule the world, not by force but by dogmas like catholicity. Catholicity was an attempt to build a peace pact on ideals, and big ideas, and sympathies. Islam also tries to serve as a peace pact, but Moslem states have freely fought with each other. Islam does not contain an adequate philosophy. Its theories of society are theocratic and do not meet the actual facts and problems. If a union of two or more states is made, even for the purpose of aggregating more force for war, it will necessarily be a peace union when regarded from within. A confederation is the highest organization yet invented for the purpose of making a great peace union without interfering with domestic autonomy. Norway and Sweden, Austria and Hungary, are states united in couples under a rational peace pact. The former couple has been disrupted; the latter is convulsed by quarrels between its members. The United States is a great peace unit, with a rational peace pact as a bond of union. It has gone through one great convulsion, from which it issued with the peace pact greatly strengthened. It tends to become a consolidated empire. This can be seen in the propositions to turn over various subjects of domestic importance to the federal authority. Happiness and prosperity have been 504due to the peace pact, valid over a continent, with immunity from powerful neighbors. We now think that we will renounce all this and go out after world power and glory so as to be like the other nations.
550. The instability of great peace unions. Now that we have the laws of Hammurabi we can see that the Euphrates valley was organized into a peace unit with a very complete and highly finished peace pact twenty-five hundred years before Christ. All the ordinary cases of discord and diverse interest were provided for under an elaborate system of laws as good as that of a modern European state. The later states of western Asia were involved in war by conflicting interests, ambition, and jealousy until the time of Alexander the Great. The smaller states were at last all submerged in the Roman empire. All the constructive work has been overthrown again and again. Only within a century or two has a structure been set up which has more stability, but it is all in jeopardy now. A union of the existing groups could not be brought about but by conquest, and that would mean very great wars, yet all are ready, by virtue of their institutions and ideas, to merge in a confederation in which peace would reign and incalculable blessings would result.
551. The Arabs. The Arabs in the time of Mohammed were a nation inhabiting a territory which kept them from feeling any national sentiment of unity.1757 The tribe and kin group were their strongest societal units. At the time of Mohammed's birth blood revenge between the kin groups was so destructive that all were instinctively struggling towards devices which might supersede it. In the century preceding Mohammed's birth the nation had been agitated by social movements in which the old was falling and the new was pushing out to acceptance and establishment. "It seemed as if the persons were too big for the circumstances."1758 If a tribe ever was a peace group amongst the Arabs, we have no proof of it. Islam was an attempt to unite the whole nation into a peace group by religion. The attempt succeeded, and the nation, in the élan of its new unity and energy, set out to conquer its neighbors. It had no state organization. The caliph was 505theological as well as civil head. The Arabs had no political experience. The leaders in the kin groups were the only chiefs they had, and they established a kind of aristocracy in Persia, but the first caliphs were pure despots, like negro heads of states. The Arabs plundered the conquered states. The greatest duty known to the Arabs was blood revenge. It was their only social engine by which to restrain crime and secure some measure of order. Blood was, in their view, more holy than anything else. It put religion in the background. The kin group was the realized ideal. The gods were comparatively insignificant.1759 In old Arabia a man engaged in a blood feud must abstain from women, wine, and unguents.1760 Within the kin group there was no blood revenge, but a guilty person was held personally responsible. A guest friend ("stranger within thy gates") was not liable to blood revenge with his own kin. His status was in the tribe in which he was a guest, by which he must be defended against his tribe of origin, if the case arose.1761 The Arabs thought it dishonorable to take money for blood guilt. It was, they thought, like selling the blood of one's kin. Bedouin tribes in the nineteenth century refused to settle blood feuds by payments. Arbitration was admitted in the time of Mohammed, at Medina, where old blood feuds had become intolerable by their consequences.1762 In Egypt, in the first half of the nineteenth century, blood revenge was still observed. Third cousins of the murderer and his victim were the limits of responsibility on either side.1763
552. Development of the philosophy of blood revenge. Blood revenge was nothing but an exercise of revenge and it had all the limitations of revenge. It produced a rude fear of consequences and had some of the effects of the administration of justice. However, it had no process of proof, no due notion of guilt, no means of following up responsibility. Therefore it could not infuse fear into the hearts of the guilty. It was 506entirely irrational. Therefore it ran into extravagance without due connection of guilt and punishment, and it cost very many lives of the innocent. In primitive society injuries consist in the invasion of a man's interests through his property, his wife, and his children, or by maiming or killing himself. Each one, when he considers himself injured, tries to redress himself. If he is not able to do it he falls back on others for aid. The kin group is the only body which has ties of sympathy and obligation to him. The kin group may be bound to give help without any regard to the justness of the quarrel, or it gets the function of a jury. Evidently the latter case is more reasonable and civilized than the former. In the original institution of blood revenge the individual was called on to sacrifice himself for others. He was a bad man if he began an inquiry into the conduct of the man who called for the sacrifice. He ought to obey the call whether it came from one who had done right or wrong.1764 Evidently, in this view, the institution was a case of social duty, not of goblinistic service to the dead. It was a further application of rationalism and justice when the behavior of the deceased was weighed before decreeing blood revenge. If the kin group decides that the injury is real and that it is properly called on to interfere, routine of method of investigation will be developed, rights will be defined, the duty of blood revenge will be defined and limited, and proceedings of redress will be invented. All this work is done in the folkways and by the methods of folkways. The steps lie along the line of advancing civilization. The notion that a man who had committed a murder and had been killed for it had got what he deserved is a very recent and civilized notion. That would not keep his ghost from demanding to be laid by blood atonement. This was the root idea out of which the custom of blood revenge arose. Blood atonement was a notion in goblinism. It was one of the very earliest cases we can find in which there was a notion of duty and social obligation. The kin were those on whom the duty fell. The strong sympathy of men of the same kin was a consequence, not a cause, but it superseded, later, the original cause. At first, the play of revenge gave satisfaction 507to wounded vanity, but that could only last while the case was personal and close, not when the cases and the obligations were remote and institutional. Another remoter, and perhaps unforeseen, consequence was the deterrent effect on crime. The law of retaliation also, "an eye for an eye," was a law. It had a primitive and crude justice in it. It has come down to our own time in "reprisals" as practiced in international quarrels, which include also the solidarity of responsibility of all in a group for the torts of each member of it. By producing a solidarity of interest on both sides blood revenge helped to produce a social philosophy. It also made each interest group a peace group inside, because only by being a peace group could it conserve all its force. Thus the war interest against outsiders and the interest of concord inside worked together to produce order, government, law, and rights.
553. Alleviations of blood revenge. The Arabs, in their efforts to supersede blood revenge, tried compurgation, tribunals, payments in composition, banishment, and arbitration. Many tribes which have adopted Mohammedanism still practice blood revenge.1765 Amongst the Kabyles a man falls under it if he kills another by accident, or by the fault of the victim, or in preventing a crime.1766
554. The king's peace. In the history of civilization the devices to do away with blood revenge are those which have been incidentally mentioned. The last means of suppressing all forms of private war was the king's peace. In modern states due respect to the king required that there should be no quarreling or fighting in his presence. His presence was interpreted to mean in or near his residence, his court, and his environs. Then his peace was interpreted to cover his highroads, and his jurisdiction was presently held to go as far as his peace, because he must have authority to enforce his peace. When small states were united into big ones the peace bond had to be extended over the larger unit. Gradually all petty jurisdictions were absorbed, all justice and redress came from the king or in his name, and 508private redress was forbidden. For a long time it seemed that the freeman's prerogative was being taken from him. As long as the duel survives the movement is incomplete.
555. Origin of criminal law. When the state took control of injuries and acts of violence and undertook to revenge them on behalf of the victims, as well as in vindication of public authority and order, injuries became crimes and revenge became punishment. Crimes were injuries which could be compensated for, and also violations of the king's peace, that is, of public welfare. In the latter point of view they brought the king's vanity into play. The German emperor Frederick II, by his ferocity against rebels, showed how potent wounded vanity is, as a motive, even in an able man. The crime of treason or rebellion always excites the vanity and fierce revenge of civil authority. It is beyond question that the state in its penalties simply took over the usages of kin groups in inflicting retaliation or gratifying revenge. It did not philosophize. It assumed functions, and with them it took the methods of procedure and the instrumentalities which it found in use for those functions. Criminal law, therefore, and criminal administration were developed out of blood revenge when it was rendered rational and its traditional processes were subjected to criticism.
1720 Sieroshevski, Yakuty (Polish version), 248.
1721 Clement, Das Recht der Salischen Franken, 243.
1722 W. R. Smith, Relig. of the Semites, 274.
1723 JAI, XX, 53.
1724 Ibid., XIV, 352.
1725 Cunow, Verwandtschafts-organization der Austral., 126.
1726 Spencer and Gillen, Cent. Austral., 265.
1727 Pfeil, Aus der Südsee, 18, 143.
1728 U. S. Nat. Mus., 1888, 379.
1729 Bur. Eth., XVII, Part I, 199.
1730 Lecky, Eur. Morals, II, 280.
1731 Wilutzky, Mann und Weib, 121.
1732 Smithson. Rep., 1893, 595.
1733 Lippert, Kulturgesch., I, 265.
1734 Geijer, Svenska Folkets Hist., I, 112.
1735 Risley, Ethnog. of India, I, 67.
1736 Deut. xix; Josh. xx.
1737 Num. xxxv.
1738 Unter den Papuas, 256.
1739 Neu Guinea, 199.
1740 JAI, XI, 67; XXVI, 174; XXVII, 25, 36.
1741 Bur. Eth., VI, 582; XI, 186; XVIII, Part I, 292.
1742 Powers, Calif. Indians, 21.
1743 Martius, Ethnog. Brasil., 127.
1744 Ibid., 693; Schomburgk, Brit. Guiana, II, 460.
1745 Smyth, Aborig. of Vict., I, 129; II, 229.
1746 Veth, Borneo's Wester Afdeeling, II, 283.
1747 Ellis, Ewe-speaking Peoples, 208.
1748 Paulitschke, Ethnog. N.O. Afrikas, I, 262; II, 151, 156.
1749 Hearn, Japan, 321.
1750 P. 250.
1751 Geijer, Svenska Folkets Hist., I, 300.
1752 von Haxthausen, Transkaukasia, 26, 29, 50.
1753 Num. xxxv. 31.
1754 Maurer, Völkerkunde, Bibel, und Christenthum, I, 164.
1755 2 Sam. xiv. 7.
1756 Deut. xxiv. 16; 2 Kings xiv. 6; Ezek. xviii. 19.
1757 Wellhausen, Skizzen und Vorarbeiten, III, 182.
1758 Ibid., 196.
1759 Wellhausen, Skizzen und Vorarbeiten, III, 194.
1760 W. R. Smith, Relig. of the Semites, 482.
1761 The Hebrew law was, "The stranger that sojourneth with you shall be unto you as the home-born among you" (Levit. xix. 34).
1762 Proksch, Blutrache bei den Arabern, 18, 30, 33, 36, 51, 54.
1763 Lane, Mod. Egypt., I, 295.
1764 Wellhausen, Skizzen und Vorarbeiten, III, 194.
1765 Proksch, Blutrache bei den Arabern.
1766 Hanoteau et Letourneux, La Kabylie.
