![]()
CHAPTER 1
Ancient Approaches to the Law of Homicide and Slave Killing
Homicide is the killing of one person by another person or persons. But not every homicide violates the legal norms of the society in which it occurs. De-pending on the social and legal context, a homicide may be impermissible, permissible, or even required. Thus, many societies excused accidental kill-ings, while others, including the Cherokees and the tribes of the northwestern United States and western Canada, established homicide liability by causation and not by the actor’s intent. Some societies also permitted or required homi-cides through ritual human sacrifices.1
Homicide, Clans, Feuds, and the State
Nineteenth-century British scholar Henry Sumner Maine’s comparative anal-ysis can be used to analyze and fairly evaluate the diverse methods used to define, deter, prosecute, and punish impermissible homicides. Maine has been called “[t]he founding father of legal history and legal anthropology.”2
He divided societies into two types, Status and Contract. In Status societies, decentralized clans or families were the centers of social life and control. The clan members’ legal rights and duties were determined by their kinship group position. Criminal responsibility for individual wrongdoing was viewed as a collective liability of the wrongdoer’s group. A ruler or a more centralized state governed Contract societies and imposed criminal liability on individual wrongdoers.3
These social models are best viewed as types at the ends of a continuum. Even in societies toward the Contract end, such as the antebellum United States, some community members—including married women, people with mental disabilities, slaves, and children—may be denied equal legal rights be-cause of their status.4
These models highlight the salient differences in the killers’ potential lia-bility for homicides—including slave killings by masters. In Status societies— which Max Weber called “traditional” and others have called primitive, clan, or tribal societies—people resolved disputes by customs and consensus. Ex-amples include the Germanic tribes that the Roman writer and official Corne-lius Tacitus described in 98 C.E. and the Native American tribes that Europeans encountered almost 1,400 years later.5 No centralized state officials or institu-tions investigated, prosecuted, and punished suspected killers. No lawmaking rulers or bodies established the substantive rules distinguishing permissible from impermissible homicides. The law instead was “found . . . in the culture of the people.”6
In many of these societies, if someone harmed another clan member “the loss was treated as a misfortune.” The chief or leader most likely punished the offender, “although physical retaliation was rarely implemented to avoid du-plicating the loss to the group.”7
If someone caused harm to the member of another clan, “retaliatory rules specified the measures of acceptable retaliation to re-establish the equilib-rium between the clans.”8 People on both sides applied customs to distinguish permissible from impermissible killings. If a homicide victim’s clan members deemed the killing to be impermissible, they may even have been required— through the blood feud—to punish either the killer or another member of the killer’s clan. But the blood feud was not anarchy. Those who violated their customs while enacting revenge risked starting another round of retribution. Thus, the “feud is a highly structured cultural practice that ingeniously main-tains social harmony.”9
Offended tribe members in some societies applied a multiplier; they took more than one life for a life. In others, the principle of lex talionis required that “retaliatory harms should be equal in magnitude to the harms suffered, popularly captured by the phrase, ‘an eye for an eye.’ ” This norm was beneficial because it prevented “devastating spirals of reciprocal violence.”10
Clan members also avoided violent revenge by agreeing on compensation for the offended clan’s members. The Germanic and Anglo-Saxon tribes called this compensation the wergeld or wergild. This was blood money paid by the offending clan as an alternative to violent revenge.11
This decentralized model evolved in many societies into the Contract or centralized state model. The ruler or state enforced individual liability for an individual’s wrongdoing and prohibited the blood feud, which “came to be regarded as an undesirable perpetuation of social and familial disorder.”12 The oldest written laws illustrate how this process occurred; they fixed schedules of the compensation to be paid by wrongdoers, including killers.13
In a centralized state, governmental officials define the elements of imper-missible homicide and state-authorized officials or individuals prosecute, try, and punish unlawful killings. The state’s official actors thus pursue what Max Weber called a monopoly, or near monopoly, of the legitimate use of physical force. The lawmakers may permit limited exceptions for state-sanctioned nonofficial killings that are justified or excused to advance public interests. Of course, some members of society, such as criminals, gangs, or lynch mobs, also continued to use extralegal self-help and violence.14
Slave Homicide, Clans, Feuds, and the State
It follows that societies exhibiting these two models would treat slave master homicides differently. We begin with the definition of slavery. Orlando Patter-son’s cross-cultural study of slavery’s fundamentals through the ages discusses slavery’s three constituent elements, which in their extremes distinguish slavery from other human relationships evidencing inequality or domination: (1) the master’s legal power to use violence against the slave; (2) the slave’s “natal alien-ation,” which is defined as the absence of “all ‘rights’ or claims of birth”; and (3) the slave’s dishonored condition. Patterson also contended that other forms of oppression, including European serfdom, are distinguishable from enslave-ment because at least one of these elements was lacking.15
Patterson cited Max Weber’s view that “[a]ll human relationships are struc-tured and defined by the relative power of the interacting persons.” Power forces people to act, or refrain from acting, in conformance with the will of other people and contrary to their own wills. The masters’ “power” or “domi-nation” over their slaves began on the social level of interaction with their use of force, or the threat that they would use force, to coerce their slaves to behave in accordance with the masters’ will. On the cultural level, natal alienation captures the slaves’ isolation from the dominant community and their perpet-ual state of “otherness.” The lack of honor relates to psychological coercion. It reinforces the notion that the master is all-powerful and honorable and that the slave is powerless and dishonorable.16
Patterson also noted that “slavery is always a relationship that rests ulti-mately on force,” and masters enforced their will because every slave society authorized masters to inflict corporal punishment on their slaves. But “[s]oci-eties varied considerably in the degree to which their legal codes or customspermitted the murder of slaves by their masters.” He listed four models for the regulation and punishment of slave killings by masters that he found in his sample of forty-five societies: “(1) the same as that for the murder of a free person; (2) not the same, but very severe; (3) mild, amounting to no more than a small fine; or (4) negligible—the master was able to kill his slave with impunity.”17
Patterson also found that “most societies considered the killing of a slave by a third party not only as an assault on another man’s property but sinful. Even with murder, it was usually the case that the punishment beyond the payment of damages was rarely severe.”18
With Maine’s social models we can evaluate these four approaches to slave killing. In the decentralized traditional societies, masters generally were free to kill their slaves with impunity. No state existed to prosecute masters and no clan members pursued the blood feud to avenge a slave’s death.19
There is, for example, evidence from Julius Caesar’s time that a slave held among the German tribes “could be whipped and bound and he could be sold and killed with impunity at his owner’s whim.”20 Tacitus noted that masters often killed their slaves “in a fit of passion as they might kill an enemy—except that they do not have to pay for it.”21
As the Western Roman Empire declined, Germanic slave masters retained the privilege to kill their slaves. Only third-party slave killers were required to pay for their crimes. For example, the Lex Salica, which was written between 507 and 511 under Clovis I, codified customary law of the Salian Franks, a Ger-manic tribe that lived in the area that now includes Belgium and the Nether-lands.22 That code’s section titled “Concerning Stolen Slaves or Other Chattels” provided that anyone stealing, killing, selling, or freeing another person’s slave was required to pay to the owner fines of 1,400 denarii (35 solidi) for a male slave and 1,200 denarii (30 solidi) for a female slave, return the value of the slave, and reimburse the owner for the lost labor. No provision addressed slave killings by slave owners.23 In contrast, the code required the killer of a free person to pay compensation of between 200 and 1,800 solidi based on the victim’s status.24
Moreover, in premodern societies slave murder “for ritual purposes was, of course, widespread. It existed, at some time, on every continent and in the early periods of every major civilization.”25 People commi...
