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40 Ashe, Two Kings of Uganda, p. 294.

41 Ta Tsing Leu Lee, sec. cclxxvii. p. 297 (Chinese). Exodus, xxii. 2 sq. Lex Duodecim Tabularum, viii. 11 sq. Plato, Leges, ix. 874. Lex Baiuwariorum, ix. (viii.) 5. Du Boys, Histoire du droit criminel de l’Espagne, p. 288 (Spanish Partidas).

42 Cf. Gregory IX. Decretales, v. 12. 3; Mishna, fol. 72, quoted by Rabbinowicz, Législation criminelle du Talmud, p. 122.

43 Lex Duodecim Tabularum, viii. 12. Cicero, Pro Milone, 3 (9).

44 Digesta, xlviii. 8. 9.

45 Bracton, op. cit. fol. 144 b, vol. ii. 464 sq.

46 Grotius, De jure belli et pacis, ii. 1. 12. 1.

According to the law of England, a woman is justified in killing one who attempts to ravish her; and so also the husband or father may kill a man who attempts a rape on his wife or daughter, if she do not consent.47 We meet with similar provisions in many other laws, modern and ancient.48 St. Augustine says that the law allows the killing of a ravisher of chastity, either before or after the act, in the same manner as it permits a person to kill a highwayman who makes an attempt upon his life.49 According to the Talmud, it is permissible to kill a would-be criminal, in order to prevent the commission of either murder or adultery “to save an innocent man’s life, or a woman’s honour”; but when the crime has already been accomplished, the criminal cannot be thus disposed of.50

47 Harris, op. cit. p. 145.

48 Erskine-Rankine, Principles of the Law of Scotland, p. 558. Ottoman Penal Code, art. 186. Nordström, Bidrag till den svenska samhälls-författningens historia, ii. 349 (ancient Swedish laws). Plato, Leges, ix. 874.

49 St. Augustine, De libero arbitrio, i. 5 (Migne, Patrologiæ cursus, xxxii. 1227).

50 Benny, op. cit. p. 125. Rabbinowicz, op. cit. p. 124.

Among many peoples who in other cases prohibit self-redress, an adulterer and an adulteress may be put to death by the aggrieved husband, especially if they be caught flagrante delicto. Such a custom prevails in various uncivilised societies where justice is generally administered by a council of elders or the chief.51 Among the ancient Peruvians “a man killing his wife for adultery was free; but if for any other fault he died for it, unless he were a man in dignity, and then some other penalty was inflicted.”52 According to Chinese penal law, “when a principal or inferior wife is discovered by her husband in the act of adultery, if such husband at the very time that he discovers kills the adulterer, or adulteress, or both, he shall not be punishable.”53 By the law of Nepal, the Parbattia husband retains the privilege of avenging, with his own hand, the violation of his marriage bed, and anyone, save a learned Brahman or a helpless boy, who instead of using his own sword, should appeal to the courts, would be covered with eternal disgrace.54 In all purely Moslem nations custom “overwhelms with ignominy the husband or son of an adulteress who survives the discovery of her sin; he is taboo’d by society; he becomes a laughing-stock to the vulgar, and a disgrace to his family and friends.”55 According to the ‘Lex Julia de adulteriis,’ a Roman father had a right to kill both his married daughter and her accomplice if she was taken in adultery either in his house or in her husband’s, provided that both of them were killed, and that it was done at once. The husband, on the other hand, had no such right as to his wife in any case, and no such right as to her accomplice unless he was an infamous person or a slave, taken, not in his father-in-law’s house, but in his own.56 However, it seems that in more ancient times the husband was entitled to kill an adulterous wife;57 and his right of self-redress in the case of adultery was again somewhat extended by Justinian beyond the very narrow limits set down by the Lex Julia.58 According to an Athenian law, “if one man shall kill another … after catching him with his wife, or with his mother, or with a sister, or with a daughter, or with a concubine whom he keeps to beget free-born children, he shall not go into exile for homicide on such account.”59 Ancient Teutonic law allowed a husband to kill both his unfaithful wife and the adulterer, if he caught them in the act;60 according to the Laws of Alfred, an adulterer taken flagrante delicto by the woman’s lawful husband, father, brother, or son, might be killed without risk of blood-feud.61 In the thirteenth century, however, there are already signs that, in England, the outraged husband who found his wife in the act of adultery might no longer slay the guilty pair or either of them, although he might emasculate the adulterer.62 The present law treats the killing of an adulterer taken in the act in the same way as homicide committed in a quarrel; by slaying him, the husband is guilty of manslaughter only, though, if the killing were deliberate and took place in revenge after the fact, the crime would be murder. This seems to be the only case in English law in which provocation, other than by actual blows, is considered sufficient to reduce homicide to manslaughter, if the killing be effected by a deadly weapon.63 There are corresponding provisions in other modern laws.64 As a rule, flagrant adultery does not justify homicide, but serves as an extenuating circumstance.65 But according to the French Code Pénal, “dans le cas d’adultère … le meurtre commis par l’époux sur son épouse, ainsi que sur le complice, à l’instant où il les surprend en flagrant délit dans la maison conjugale, est excusable.”66 And in Russia, though the law does not exempt from punishment a husband who thus avenges himself, the jury show great indulgence to him.67

51 Dalton, Descriptive Ethnology of Bengal, p. 45; Stewart, in Jour. As. Soc. Bengal, xxiv. 628 (Kukis). Macpherson, Memorials of Service in India, p. 83; Hunter, Annals of Rural Bengal, iii. 76 (Kandhs). Anderson, Mandalay to Momien, p. 140 (Kakhyens). MacMahon, Far Cathay and Farther India, p. 273 (Indo-Burmese border tribes). Crawfurd, History of the Indian Archipelago, iii. 130. von Brenner, Besuch bei den Kannibalen Sumatras, pp. 211, 213. Modigliani, Viaggio a Nías, p. 495. Dorsey, ‘Omaha Sociology,’ in Ann. Rep. Bur. Ethn. iii. 364. Dyveyrier, Exploration du Sahara, p. 429 (Touareg). Barrow, Travels into the Interior of Southern Africa, i. 207 (Kafirs). Among the Gaika tribe of the Kafirs, however, “a man is fined for murder, if he kills an adulterer or adulteress in the act, although he be the husband of the adulteress” (Maclean, Compendium of Kafir Laws and Customs, p. 111). Among the Wakamba, “if a man is caught in adultery at night, the husband has a right to kill him; but if the injured man thus takes the law into his own hands in the daytime, he is dealt with as a murderer” (Decle, op. cit. p. 487).

52 Herrera, op. cit. iv. 338.

53 Ta Tsing Leu Lee, sec. cclxxxv. p. 307.

54 Hodgson, Miscellaneous Essays, ii. 235, 236, 272.

55 Burton, Sind Revisited, ii. 54 sq.

56 Digesta, xlviii. 5. 21 sq.

57 Gellius, Noctes Atticæ, x. 23. 5. Cf. Mommsen, Römisches Strafrecht, p. 625.

58 Novellæ, cxvii. 15.

59 Demosthenes, Contra Aristocratem, 53, p. 637.

60 Wilda, Strafrecht der Germanen, p. 823. Nordström, op. cit. ii. 62 sq. Stemann, op. cit. p. 325.

61 Laws of Alfred, ii. 42.

62 Pollock and Maitland, op. cit. ii. 484. The same right is granted by a Spanish mediæval law to a father, or a husband, who finds a man having illegitimate sexual intercourse with his daughter, or wife (Du Boys, Histoire du droit criminel de l’Espagne, p. 93).

63 Hale, op. cit. i. 486. Harris, op. cit. p. 145. Cherry, Lectures on the Growth of Criminal Law, p. 82 sq.

64 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,’ in Journal des Museum Godeffroy, iv. 43 sq.

82 Macdonald, Africana, i. 172.

83 Macpherson, op. cit. p. 82.

84 Georgi, Russia, iii. 83. Cf. also Turner, ‘Ethnology of the Ungava District,’ in Ann. Rep. Bur. Ethn. xi. 186.

Among the ancient Peruvians, “when one killed another in a quarrel, the first thing enquired into was, who had been the aggressor; if the dead man, then the punishment was slight, at the will of the Inga; but if the surviver had given the provocation, his penalty was death, or at least perpetual banishment to the Andes, there to work in the Inga’s fields of corn, which was like sending him to the galeys. A murderer was immediately publickly put to death, tho’ he were a man of quality.”85 Among the Mayas of Yucatan and Nicaragua, in case of great provocation or absence of malice, homicide was atoned by the payment of a fine.86

85 Herrera, op. cit. iv. 337 sq.

86 Bancroft, Native Races of the Pacific States, ii. 658.

From certain passages in the Mosaic law the conclusion has been drawn that the ancient Hebrews did not consider it obligatory to inflict death upon him who had killed his neighbour in a fit of passion.87 It is said that a man shall be put to death if he “come presumptuously upon his neighbour, to slay him with guile,”88 or if he “hate his neighbour, and lie in wait for him, and rise up against him, and smite him mortally that he die.”89 On the other hand, he shall be allowed a resort to a city of refuge if “he lie not in wait,”90 or if he thrust his neighbour “suddenly without enmity.”91

87 Goitein, Das Vergeltungsprincip im biblischen und taltmudischen Strafrecht, p. 33 sqq.

88 Exodus, xxi. 14.

89 Deuteronomy, xix. 11 sq.

90 Exodus, xxi. 13.

91 Numbers, xxxv. 22, 25.

Professor Leist suggests that in ancient Greece, at a time when blood-revenge was a sacred duty in the case of premeditated murder, homicide committed without premeditation could be forgiven by the avenger of blood.92 Plato, in his ‘Laws,’ draws a distinction between him “who treasures up his anger and avenges himself, not immediately and at the moment, but with insidious design, and after an interval,” and him “who does not treasure up his anger, and takes vengeance on the instant, and without malice prepense.” The deed of the latter, though not involuntary, “approaches to the involuntary,” and should therefore be punished less severely than the crime perpetrated by him who has stored up his anger.93 Aristotle, also, whilst denying that “acts done from anger or from desire are involuntary,”94 maintains that “assaults committed in anger, are rightly decided not to be of malice aforethought, for they do not originate in the volition of the man who has been angered, but rather in that of the man who so angered him.”95 And he adds that “everyone will admit that he who does a disgraceful act, being at the same time free from desire, or at any rate feeling desire but slightly, is more to be blamed than is he who does such an act under the influence of a strong desire; and that he who, when not in a passion, smites his neighbour, is more to be blamed than is he who does so when in a passion.”96 Cicero likewise points out that “in every species of injustice it is a very material question whether it is committed through some agitation of passion, which commonly is short-lived and temporary, or from deliberate, prepense, malice; for those things which proceed from a short, sudden fit, are of slighter moment than those which are inflicted by forethought and preparation.”97

92 Leist, Græco-italische Rechtsgeschichte, pp. 325, 352.

93 Plato, Leges, ix. 867.

94 Aristotle, Ethica Nicomachea, iii. 1. 21.

95 Ibid. v. 8. 9.

96 Ibid. vii. 7. 3.

97 Cicero, De officiis, i. 8.

Of ancient Russian law M. Kovalewsky observes, “L’existence d’une excitation violente est prise en considération, par notre antique législation, qui déclare le crime accompli sous leur influence non imputable.”98 According to ancient Irish law, “homicide was divisible into the two classes of simple manslaughter and murder, the difference between which lay in the existence or absence of malice aforethought, the fine in the latter being double what it was in the former case”; and for a wound which was inflicted inadvertently in lawful anger, the payment was made upon a diminished scale.99 The ancient Teutons, also, held a wrong committed in sudden anger and on provocation to be less criminal than one committed with premeditation in cold blood;100 this opinion seems partly to be at the bottom of the distinction which they made between open and secret homicide.101 According to the law of the East Frisians, a man who kills another without premeditation may buy off his neck with money, not so he who commits a murder with malice aforethought.102 It is curious that Bracton should take no notice of the different grades of evil intention which may accompany voluntary homicide, and that he should omit altogether the question of provocation;103 Beaumanoir, the French jurist, who lived in the same age, mentions in his ‘Coutumes du Beauvoisis’ provocation as an extenuating circumstance,104 and the same view was taken by the Church.105 Coke, in his Third Institute—which may be regarded as the second source of the criminal law of England, Bracton being the first—gives an account of malice aforethought, and adds, “Some manslaughters be voluntary, and not of malice forethought, upon some sudden falling out. Delinquens per iram provocatus puniri debet mitius.”106 Hume says that in Scotland “the manslayer on suddenty was to have the benefit of the girth or sanctuary: he might flee to the church or other holy place; from which he might indeed be taken for trial, but to be returned thither, safe in life and limb, if his allegation of chaude melle were proved.”107 All modern codes regard provocation under certain circumstances as a mitigating circumstance.108 According to the criminal law of Montenegro, great provocation may even relieve a homicide of all guilt.109