THE WILL AS THE SUBJECT OF MORAL JUDGMENT AND THE INFLUENCE OF
EXTERNAL EVENTS
HOWEVER obvious it may be to the reflecting moral consciousness that
the only proper object of moral blame and praise is the will, it would
be a hasty conclusion to assume that moral judgments always and
necessarily relate to the will. There are numerous facts which tend to
show that such judgments are largely influenced by external events
involved in, or resulting from, the conduct of men.
Some peoples are said to make no distinction between intentional and
accidental injuries. Most statements to this effect refer to revenge
or compensation.
Von Martius states that, among the Arawaks, "the blood-revenge is
so blind and is practised so extensively, that many times an
accidental death leads to the destruction of whole families, both the
family of him who killed and of the family of the victim";[1] and,
according to Sir E. F. Im Thurn, the smallest injury done by one
Guiana Indian to another, even if unintentional, must be atoned by the
suffering of a similar injury.[2] Adair, in his work on the North
American Indians, says that they pursued the law of retaliation with
such a fixed eagerness, that formerly if a little boy shooting birds
in the high and thick cornfields unfortunately chanced slightly to
wound another with his childish arrow, "the young vindictive fox was
excited by custom to watch his ways with the utmost earnestness, till
the wound was returned in as equal a manner {218} as could be
expected."[3] Among the Ondonga in South Africa,[4] the Nissan
Islanders in the Bismarck Archipelago,[5] and certain Marshall
Islanders,[6] the custom of blood-revenge makes no distinction between
wilful and accidental homicide. Among the Kasias "destruction of human
life, whether by accident or design, in open war or secret, is always
the cause of feud among the relations of the parties."[7] It seems
that the blood-revenge of the early Greeks was equally indiscriminate.[8]
As for the blood-feuds of the ancient Teutons, Wilda maintains that,
even in prehistoric times, it was hardly conformable to good custom to
kill the involuntary manslayer;[9] but there is every reason to
believe that custom made no protest against it. According to the myth
of Balder, accident was no excuse for shedding blood. Loke gives to
Hödur the mistletoe twig, and asks him to do like the rest of the
gods, and show Balder honour, by shooting at him with the twig. Hödur
throws the mistletoe at Balder, and kills him, not knowing its power.
According to our notions, blind Hödur is perfectly innocent of his
brother's death; yet the avenger, Vali, by the usual Germanic vow,
neither washes nor combs his hair till he has killed Hödur. It is also
instructive to note that the narrator of this story finds himself
called upon to explain, and, in a manner, to excuse the Asas for not
punishing Hödur at once, the place where they were assembled being a
sacred place.[10] We find survivals of a similar view in laws of a
comparatively recent date. The earliest of the Norman customals
declares quite plainly that the man who kills his lord by misadventure
must die.[11] And, according to a passage in 'Leges Henrici I.,' in
case A by mischance falls from a tree upon B and kills him, then, if
B's kinsman must needs have vengeance, he may climb a tree and fall
upon A.[12] This provision has been justly represented as a curious
instance of a growing appreciation of moral differences, which has not
dared to abolish, but has tried to circumvent the ancient
rule.[13]
[Footnote 1: von Martius, _Beiträge zür Ethnographie Amerika's_,
i. 693 _sq._]
[Footnote 2: Im Thurn, _Among the Indians of Guiana_, p. 214.]
[Footnote 3: Adair, _History of the American Indians_, p. 150.]
[Footnote 4: Rautanen, in Steinmetz, _Rechtsverhältnisse_, p. 341.]
[Footnote 5: Sorge, _ibid._ p. 418.]
[Footnote 6: Kohler, in _Zeitschr. f. vergl. Rechtswiss._ xiv. 443.
See also _Idem_, _Shakespeare vor dem Forum der Jurisprudenz_, p.
188.]
[Footnote 7: Fisher, in _Jour. Asiatic Soc. Bengal_, ix. 835.]
[Footnote 8: Rohde, _Psyche_, pp. 237, 238, 242.]
[Footnote 9: Wilda, _Strafrecht der Germanen_, p. 174.]
[Footnote 10: _Snorri Sturluson_, 'Gylfaginning,' 50, in _Edda_, p.
59. _Cf._ Brunner, _Forschungen zur Geschichte des deutschen und
französischen Rechtes_, p. 489.]
[Footnote 11: Pollock and Maitland, _History of English Law before the
Time of Edward I._ ii. 482.]
[Footnote 12: _Leges Henrici I._ xc. 7.]
[Footnote 13: Pollock and Maitland, _op. cit._ ii. 471.]
{219} Among the Kandhs "similar compensation is made in all cases
both of excusable homicide and of manslaughter."[14] And the same is
said to be the case among various other savages or barbarians.[15]
[Footnote 14: Macpherson, _Memorials of Service in India_, p. 82.]
[Footnote 15: Crawfurd, _History of the Indian Archipelago_, iii. 123.
Ellis, _E[(w]e-speaking Peoples of the Slave Coast_, p. 223.
Munzinger, _Ostafrikanische Studien_, p. 502 (Barea and Kunáma).]
However, this want of discrimination between intentional and
accidental injuries is not restricted to cases of revenge or
compensation. Early punishment is sometimes equally indiscriminate.
Among the Káfirs of the Hindu-Kush, "murder, justifiable homicide,
and killing by inadvertence in a quarrel, are all classed as one
crime, and punished in the same way. Extenuating circumstances are
never considered. The single question asked is, Did the man kill the
other? The penalty is an extremely heavy blood-ransom to the family of
the slain man, or perpetual exile combined with spoliation of the
criminal's property."[16] Parkyns tells us the following story from
Abyssinia:--A boy who had climbed a tree, happened to fall down right
on the head of his little comrade standing below. The comrade died
immediately, and the unlucky climber was in consequence sentenced to
be killed in the same way as he had killed the other boy, that is, the
dead boy's brother should climb the tree in his turn, and tumble down
on the other's head till he killed him.[17] The Cameroon tribes do not
recognise the circumstance of accidental death:--"He who kills another
accidentally must die. Then, they say, the friends of each are equal
mourners."[18] Among the negroes of Accra, according to Monrad,
accidental homicide is punished as severely as intentional.[19]
[Footnote 16: Scott Robertson, _Káfirs of the Hindu-Kush_, p. 440.]
[Footnote 17: Parkyns, _Life in Abyssinia_, ii. 236 _sqq._]
[Footnote 18: Richardson, 'Observations among the Cameroon Tribes of
West Central Africa,' in _Memoirs of the International Congress of
Anthropology_, Chicago, p. 203. See also Leuschner, in Steinmetz,
_Rechtsverhältnisse_, p. 24 (Bakwiri); _ibid._ p. 51 (Banaka and
Bapuku).]
[Footnote 19: Monrad, _Guinea-Kysten og dens Indbyggere_, p. 88.]
Yet it would obviously be a mistake to suppose that, at early stages
of civilisation, people generally look only at the harm done, and not
in the least at the will of him who did it. Even in the system of
private redress we often {220} find a distinction made between
intentional or foreseen injuries on the one hand, and unintentional
and unforeseen injuries on the other. In many instances, whilst
blood-revenge is taken for voluntary homicide, compensation is
accepted for accidental infliction of death.[20] And sometimes the
chief or the State interferes on behalf of the involuntary manslayer,
protecting him from the persecutions of the dead man's family.
[Footnote 20: _Cf._ Kohler, _Shakespeare vor dem Forum der
Jurisprudenz_, p. 188, n. 1.]
Among the African Wapokomo intention makes a difference in the
revenge.[21] Among the Papuans of the Tami Islands blood-revenge is
common in the case of murder, but is not exacted in the case of
accidental homicide; the involuntary manslayer has only to pay a
compensation and to leave the community for a certain length of
time.[22] Among the Namaqua Hottentots custom demands that
compensation should be accepted for unintentional killing.[23] We meet
with the same principle among the Albanians[24] and the Slavs,[25] in
the past history of other European peoples,[26] in ancient
Yucatan,[27] and in the religious law of Muhammedanism.[28] Among the
Kabyles of Algeria, "si les m[oe]urs n'autorisent jamais la famille
victime d'un homicide volontaire à amnistier un crime, elles lui
permettent presque toujours de pardonner la mort qui ne résulte que
d'une maladresse ou d'un accident." They have a special ceremony by
which the family of the deceased grant pardon to the involuntary
manslayer, but the pardon must be given unanimously. The manslayer
then becomes a member of the _kharuba_, or _gens_, of the
deceased.[29] Among the Omahas, "when one man killed another
accidentally, he was rescued by the interposition of the chiefs, and
subsequently was punished as if he were a murderer, but only for a
year or two."[30] The {221} ancient law of the Hebrews, which
recognised the right and duty of private revenge in cases of
intentional homicide, laid down special rules for homicide by
misfortune. He who killed another unawares and unwittingly might flee
to a city of refuge, where he was protected against the avenger of
blood as long as he remained there.[31] In ancient Rome the
involuntary manslayer seems to have been exposed to the blood-feud
until a law attributed to Numa ordained that he should atone for the
deed by providing a ram to be sacrificed in his place.[32]
[Footnote 21: Kraft, in Steinmetz, _Rechtsverhältnisse_, p. 292.]
[Footnote 22: Bamler, quoted by Kohler, in _Zeitschr. f. vergl.
Rechtswiss._ xiv. 380.]
[Footnote 23: Fritsch, _Die Eingeborenen Süd-Afrika's_, p. 363.]
[Footnote 24: Gop[vc]evi['c], _Oberalbanien und seine Liga_, p. 327.]
[Footnote 25: Miklosich, 'Blutrache bei den Slaven,' in _Denkschriften
der kaiserl. Akademie der Wissensch. Philos.-histor. Classe_, Vienna,
xxxvi. 131.]
[Footnote 26: Leist, _Græco-italische Rechtsgeschichte_, p. 324.
_Ancient Laws of Ireland_, iii. p. cxxiv. For the ancient Teutons, see
_infra_, p. 226.]
[Footnote 27: de Landa, _Relacion de las cosas de Yucatan_, p. 134.]
[Footnote 28: _Koran_, iv. 94. _Cf._ Sachau, _Muhammedanisches Recht
nach Schafiitischer Lehre_, p. 761 _sq._]
[Footnote 29: Hanoteau and Letourneux, _La Kabylie_, iii. 68 _sq._]
[Footnote 30: Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._
iii. 370.]
[Footnote 31: _Deuteronomy_, iv. 42. _Numbers_, xxxv. 11 _sqq._
_Joshua_, xx. 3 _sqq._]
[Footnote 32: Servius, _In Virgilii Bucolica_, 43. _Cf._ von Jhering,
_Das Schuldmoment im römischen Privatrecht_, p. 11.]
Among some peoples who accept compensation even for wilful murder, the
blood-price is lower if life is taken unintentionally.[33]
[Footnote 33: Beverley, in Steinmetz, _Rechtsverhältnisse_, p. 215
(Wagogo). Dareste, _Nouvelles études d'histoire du droit_, p. 237
(Swanetians of the Caucasus).]
According to Bowdich, "a person accidentally killing another in
Ahanta, pays 5 oz. of gold to the family, and defrays the burial
customs. In the case of murder, it is 20 oz. of gold and a slave; or,
he and his family become the slaves of the family of the
deceased."[34] Ancient Irish law imposed an Eric fine for accidental
or unintentional homicide, to be paid to the relatives of the dead
man, whilst a double fine was due for homicide where anger was shown,
_i.e._, where probably there was what we should call "malice."[35]
[Footnote 34: Bowdich, _Mission from Cape Castle to Ashantee_, p. 258,
n. [double dagger].]
[Footnote 35: Cherry, _Growth of Criminal Law in Ancient Communities_,
p. 22.]
In the punishments inflicted by many savages, a similar distinction is
made between intentional and accidental harm, although, at the same
time, some degree of guilt is frequently imputed to persons who, in
our opinion, are perfectly innocent.
Speaking of the West Australian aborigines, Sir G. Grey
observes:--"If a native is slain by another wilfully, they kill the
murderer, or any of his friends they can lay hands on. If a native
kills another accidentally, he is punished according to the
circumstances of the case." And the punishment may be severe enough.
"For instance, if, in inflicting spear wounds as a punishment for some
offence, one of the agents should spear the culprit through the thigh,
and accidentally so injure the {222} femoral artery that he dies, the
man who did so would have to submit to be speared through both thighs
himself."[36] In New Guinea, according to Dr. Chalmers, murder is
punished capitally, whereas a death caused by accident is expiated by
a fine.[37] Among the Mpongwe, "except in the case of a chief or a
very rich man, little or no difference is made between wilful murder,
justifiable homicide, and accidental manslaughter."[38] Kafir law
seems to demand no compensation for what is clearly proved to have
been a strictly accidental injury to property, but the case is
different in regard to accidental injuries to persons, if the injury
be of a serious nature. Thus "it seems to make little or no
distinction between wilful murder and any other kind of homicide;
unless it be, perhaps, that in purely accidental homicide the full
amount of the fine may not be so rigidly insisted upon."[39] Among the
A-l[=u]r, in the case of accidental injuries, a compensation is paid
to the injured party and a fine to the chief. Whilst the strict
punishment for murder is death, the culprit is allowed to redeem
himself if it cannot be proved that he committed the deed
wilfully.[40] The Masai regard accidental homicide, or injury, as "the
will of N'gai," "the Unknown," and "the elders arrange what
compensation shall be paid to the injured person (if a male) or to the
nearest relative. If a woman is killed by accident, all the killer's
property becomes the property of the nearest relative."[41] The
Eastern Central Africans, according to the Rev. D. Macdonald, "know
the difference between an injury of accident and one of
intention."[42] And so do the natives of Nossi-Bé and Mayotte, near
Madagascar.[43]
[Footnote 36: Grey, _Journals of Expeditions of Discovery in
North-West and Western Australia_, ii. 238 _sq._]
[Footnote 37: Chalmers, _Pioneering in New Guinea_, p. 179.]
[Footnote 38: Burton, _Two Trips to Gorilla Land_, i. 105.]
[Footnote 39: Maclean, _Compendium of Kafir Laws and Customs_,
pp. 113, 67, 60.]
[Footnote 40: Stuhlmann, _Mit Emin Pascha ins Herz von Afrika_, p. 524.]
[Footnote 41: Hinde, _The Last of the Masai_, p. 108.]
[Footnote 42: Macdonald, _Africana_, i. 11.]
[Footnote 43: Walter, in Steinmetz, _Rechtsverhältnisse_, p. 393.]
Nay, there are instances of uncivilised peoples who entirely excuse,
or do not punish, a person for an injury which he has inflicted by
mere accident, even though they may compel him to pay damages for
involuntary destruction of property.
We are told that the Pennsylvania Indians "judge with calmness on
all occasions, and decide with precision, or endeavour {223} to do so,
between an accident and a wilful act; the first, they say, they are
all liable to commit, and therefore it ought not to be noticed, or
punished; the second being a wilful or premeditated act, committed
with a bad design, ought on the contrary to receive due
punishment,"[44] Among some of the Marshall Islanders unintentional
wrongs are punished only if the injured party be a person of note, for
instance, a chief, or a member of a chief's family.[45] Among the
Papuans of the Tami Islands, "accidental injuries are not punished.
Generally the culprit confesses his deed, and makes an apology. If he
has caused the destruction of some valuable, he has to repair the
loss."[46] Among the Wadshagga there is no punishment for an
accidental hurt; but if anybody's property has been damaged thereby, a
compensation amounting to one half of the damage may be required.[47]
The Hottentots do not nowadays punish accidents, even in the case of
homicide.[48] Among the Washambala a person is held responsible only
for such injuries as he has inflicted intentionally or caused by
carelessness.[49] In some parts of West Africa, if a man, woman, or
child, not knowing what he or she does, damages the property of
another person, "native justice requires, and contains in itself, that
if it can be proved the act was committed in ignorance that was not a
culpable ignorance, the doer cannot be punished according to the
law."[50]
[Footnote 44: Buchanan, _North American Indians_, p. 160 _sq._]
[Footnote 45: Kohler, in _Zeitschr. f. vergl. Rechtswiss._ xiv. 448.]
[Footnote 46: Bamler, quoted by Kohler, _ibid._ xiv. 381.]
[Footnote 47: Merker, quoted by Kohler, _ibid._ xv. 64.]
[Footnote 48: Kohler, _ibid._ xv. 353.]
[Footnote 49: Lang, in Steinmetz, _Rechtsverhältnisse_, p. 261.]
[Footnote 50: Miss Kingsley, in her Introduction to Dennett's _Notes
on the Folklore of the Fjort_, p. xi.]
These instances of occasional discrimination in savage justice are
particularly interesting in the face of the fact that, even among
peoples who have attained a higher degree of culture, innocent persons
are often punished by law for bringing about events without any fault
of theirs.
It is a principle of the Chinese law that "all persons who kill or
wound others purely by accident, shall be permitted to redeem
themselves from the punishment of killing or wounding in an affray, by
the payment in each case of a fine to the family of the person
deceased or wounded."[51] But there are exceptions to this rule. Any
{224} person who kills his father, mother, paternal grandfather or
grandmother, and any wife who kills her husband's father, mother,
paternal grandfather or grandmother, "purely by accident, shall still
be punished with 100 blows and perpetual banishment to the distance of
3,000 _lee_. In the case of wounding purely by accident, the persons
convicted thereof shall be punished with 100 blows and three years'
banishment: in these cases, moreover, the parties shall not be
permitted to redeem themselves from punishment by the payment of a
fine, as usual in the ordinary cases of accident."[52] Again, slaves
who accidentally kill their masters, "shall suffer death, by being
strangled at the usual period."[53] It is also a characteristic
provision of the Chinese law that an act of grace is necessary for
relieving all those from punishment who have offended accidentally and
inadvertently.[54]
[Footnote 51: _Ta Tsing Leu Lee_, sec. ccxcii. p. 314.]
[Footnote 52: _Ibid._ sec. cccxix. p. 347. _Cf._ _ibid._ sec. ccxcii.
p. 314.]
[Footnote 53: _Ibid._ sec. cccxiv. p. 338.]
[Footnote 54: _Ibid._ sec. xvi. p. 18.]
It is said in the Laws of [Hv]ammurabi:--"If a man has struck a man in
a quarrel, and has caused him a wound, that man shall swear 'I did not
strike him knowing' and shall answer for the doctor. If he has died of
his blows, he shall swear, and if he be of gentle birth he shall pay
half a mina of silver. If he be the son of a poor man, he shall pay
one-third of a mina of silver."[55]
[Footnote 55: _Laws of [Hv]ammurabi_, 206 _sqq._]
It has been observed that the purpose of the Hebrew law of sanctuary
was not merely to protect the involuntary manslayer from
blood-revenge, but at the same time to punish him and compel him to
expiate the blood he has shed.[56] If he left the city of refuge
before the death of the high-priest, the avenger of blood might kill
him without incurring blood-guiltiness; and he was not permitted to
purchase an earlier return to his possession with a money
ransom.[57]
[Footnote 56: Goitein, _Das Vergeltungsprincip im biblischen und
talmudischen Strafrecht_, p. 25 _sq._ Keil, _Manual of Biblical
Archæology_, ii. 371.]
[Footnote 57: _Numbers_, xxxv. 26 _sqq._]
According to the Laws of Manu, "he who damages the {225} goods of
another, be it intentionally or unintentionally, shall give
satisfaction to the owner and pay to the king a fine equal to the
damage";[58] and various rites of expiation are prescribed for a
person who kills a Brâhmana by accident,[59] whereas the intentional
slaying of a Brâhmana is inexpiable.[60]
[Footnote 58: _Laws of Manu_, viii. 288.]
[Footnote 59: _Ibid._ xi. 73 _sqq._]
[Footnote 60: _Ibid._ xi. 90. _Gautama_, xxi. 7. According to some
authorities, however, the wilful slaying of a Brâhmana was expiable by
a penance of greater severity (Bühler's note, in his translation of
the 'Laws of Manu,' _Sacred Books of the East_, xxv. 449).]
Demosthenes praises the Athenian law for making the penalty of
unintentional homicide less than that of intentional. The punishment
for murder was death, from which, however, before the sentence was
passed, the murderer was at liberty to escape by withdrawing from his
country and remaining in perpetual exile. But he who was convicted of
involuntary homicide had to leave the country only for some shorter
time, until he had appeased the relatives of the deceased.[61] As will
be seen subsequently, the real object of this law was not so much to
punish the involuntary manslayer, as to save him from being persecuted
by the dead man's ghost, and to rid the community of a pollution.
However, the Athenian law does not represent the ideas of early times.
As Dr. Farnell observes, the constitution and the legend about the
foundation of the court at the Palladium, which was established to try
cases of unintentional blood-shedding, shows that the ancient practice
was susceptible of improvement.[62] Nor does the Roman law, which, in
its developed shape, with such a remarkable consistency carried out
the Cornelian principle, "in maleficiis voluntas spectatur non
exitus,"[63] seem to have been equally discriminate in early
times.[64] In the Law of the Twelve Tables there are still some faint
traces left of the notion that expiation was required of a person who
accidentally shed human blood.[65]
[Footnote 61: Demosthenes, _Contra Aristocratem_, 71 _sq._ p. 643 _sq._]
[Footnote 62: Aristotle, _De republica Atheniensium_, 57. Farnell,
_Cults of the Greek States_, i. 304.]
[Footnote 63: _Digesta_, xlviii. 8. 14.]
[Footnote 64: von Jhering, _Das Schuldmoment im römischen
Privatrecht_, p. 16. Mommsen, _Römisches Strafrecht_, p. 85.]
[Footnote 65: Mommsen, _op. cit._ p. 85.]
{226} The principle of ancient Teutonic law was, "Qui inscienter
peccat, scienter emendet"--a maxim laid down by the compiler of the
so-called 'Laws of Henry I.,'[66] no doubt translating an old English
proverb.[67] In historic times, the law, distinguishing between _vili_
and _vadhi_, treats intentional homicide as worse than unintentional.
In one case there can, in the other there can not, be a legitimate
feud; and whilst wilful manslaughter can be expiated only by _wíte_,
as well as _wer_, the involuntary manslayer has to pay _wer_ to the
family of the dead, but no _wíte_ to the authorities.[68] Yet the
_wer_ to be paid was not merely compensation for the loss sustained,
as Wilda, misled by his enthusiasm for Teutonic law, has erroneously
assumed;[69] it was punishment as well.[70] And the character of
criminality attached to accidental homicide survived the system of
_wer_. When homicide became a capital offence, homicide by
misadventure was included in the law. However, the involuntary
manslayer was not executed, but recommended to the "mercy" of the
prince. This was the case in England in the later Middle Ages,[71] and
in France still more recently.[72] And when the English law was
altered, and the involuntary offender no longer was in need of mercy,
he nevertheless continued to be treated as a criminal. He was punished
with forfeiture of his goods. According to the rigour of the law such
a forfeiture might have been exacted even in the year 1828, when the
law was finally abolished after having fallen into desuetude in the
course of the previous century.[73]
[Footnote 66: _Leges Henrici I._ xc. 11.]
[Footnote 67: Pollock and Maitland, _History of the English Law before
the Time of Edward I._ i. 54.]
[Footnote 68: Wilda, _op. cit._ p. 545 _sqq._, 594. _Idem_, _Deutsche
Rechtsgeschichte_, i. 165. Pollock and Maitland, _op. cit._ ii. 471.]
[Footnote 69: Wilda, _op. cit._ p. 578.]
[Footnote 70: Geyer, _Die Lehre von der Nothwehr_, p. 87 _sq._ Trummer
_Vorträge über Tortur, &c._ i. 345. Brunner, _Forschungen_, p. 505 _sq._]
[Footnote 71: Bracton, _De Legibus et Consuetudinibus Angliæ_, fol.
134, vol. ii. 382 _sq._; fol. 104 b, vol. ii, 152 _sq._ Brunner,
_Forschungen_, p. 494 _sqq._ Biener, _Das englische Geschwornengericht_,
i. 120, 392. Pollock and Maitland, _op. cit._ ii. 479.]
[Footnote 72: Beaumanoir, _Les coutumes du Beauvoisis_, 69, vol. ii.
483. Esmein, _Histoire de la procédure criminelle en France_, p. 255.]
[Footnote 73: Stephen, _History of the Criminal Law of England_, iii. 77.]
If men at the earlier stages of civilisation generally {227} attach
undue importance to the outward aspect of conduct, the same is still
more the case with their gods.
The Tshi-speaking peoples of the Gold Coast believe that the god
Sasabonsum "takes delight in destroying all those who have offended
him, even though the offence may have been accidental and
unintentional"; whereas, among the same people, it is the custom that
even deaths resulting from accidents, not to speak of minor injuries,
are compensated for by a sum of money.[74] Miss Kingsley says she is
unable, from her own experience, to agree with Mr. Dennett's statement
with reference to the Fjort, that ignorance would save the man who had
eaten prohibited food. From what she knows, Merolla's story is
correct: the man, though he eat in ignorance, dies or suffers
severely. "It is true," she adds, "that one of the doctrines of
African human law is that the person who offends in ignorance, that is
not a culpable ignorance, cannot be punished; but this merciful dictum
I have never found in spirit law. Therein if you offend, you suffer;
unless you can appease the enraged spirit, neither ignorance nor
intoxication is a feasible plea in extenuation."[75] The Omahas
believe that to eat of the totem, even in ignorance, would cause
sickness, not only to the eater, but also to his wife and
children.[76]
[Footnote 74: Ellis, _Tshi-speaking Peoples of the Gold Coast_,
pp. 35, 301.]
[Footnote 75: Miss Kingsley, in her Introduction to Dennett's
_Folklore of the Fjort_, p. xxviii.]
[Footnote 76: Frazer, _Totemism_, p. 16.]
Speaking of the sacred animals of the ancient Egyptians, Herodotus
says, "Should any one kill one of these beasts, if wilfully, death is
the punishment; if by accident, he pays such fine as the priests
choose to impose. But whoever kills an ibis or a hawk, whether
wilfully or by accident, must necessarily be put to death."[77]
According to the Chinese penal code, "whoever destroys or damages,
whether intentionally or inadvertently, the altars, mounds, or
terraces consecrated to the sacred and imperial rites, shall suffer
100 blows, and be perpetually banished to distance {228} of 2000
_lee_."[78] In these cases the punishment inflicted by human hands is
obviously a reflection of the supposed anger of superhuman
beings.
[Footnote 77: Herodotus, ii. 65. _Cf._ Pomponius Mela, 9.]
[Footnote 78: _Ta Tsing Leu Lee_, sec. clviii. p. 172.]
The Shintoist prays for forgiveness of errors which he has committed
unknowingly.[79] According to the Vedic hymns, whoever with or without
intention offends against the eternal ordinances of Varuna, the
All-knowing and Sinless, arouses his anger, and is bound with the
bonds of the god--with calamity, sickness, and death.[80] Forgiveness
is besought of Varuna for sins that have been committed in
unconsciousness;[81] even sleep occasions sin.[82] The singer
Vasishtha is filled with pious grief, because daily against his will
and without knowledge he offends the god and in ignorance violates his
decree.[83] "All sages," say the Laws of Manu, "prescribe a penance
for a sin unintentionally committed"; such a sin "is expiated by the
recitation of Vedic texts, but that which men in their folly commit
intentionally, by various special penances."[84] Among the present
Hindus, "even in cases of accidental drinking of spirits through
ignorance on the part of any of the three twice-born classes, nothing
short of a repetition of the initial sacramentary rites, effecting a
complete regeneration, is held sufficient to purge the sin."[85]
[Footnote 79: Selenka, _Sonnige Welten_, p. 210 _sq._]
[Footnote 80: _Cf._ Kaegi, _Rigveda_, p. 66 _sq._; Oldenberg, _Die
Religion des Veda_, p. 289.]
[Footnote 81: _Rig-Veda_, v. 85. 8.]
[Footnote 82: _Ibid._ vii. 86. 6; x. 164. 3.]
[Footnote 83: _Ibid._ vii. 88. 6. _Cf._ Kaegi, _op. cit._ p. 68.]
[Footnote 84: _Laws of Manu_, xi. 45 _sq._ _Cf._ _Vasishtha_, 20.]
[Footnote 85: Rájendralála Mitra, _Indo-Aryans_, i. 393.]
In the Greek literature there are several instances of guilt being
attached to the accidental transgression of some sacred law, the
transgressor being perfectly unaware of the nature of his deed.
Oedipus is the most famous example of this. Actaeon is punished for
having seen Diana. Pausanias, the Spartan king, made sacrifice to Zeus
Phyxius, to atone for the death of the maiden whom he had slain by
misfortune.[86]
[Footnote 86: Farnell, _op. cit._ i. 72.]
The Babylonian psalmist, assuming that one of the {229} gods is angry
with him because he is suffering pain, exclaims:--"The sin which I
committed I know not. The transgression I committed I know not. The
affliction which was my food--I know it not. The evil which trampled
me down--I know it not. The lord in the wrath of his heart has
regarded me; the god in the fierceness of his heart has punished
me."[87] In another psalm it is said:--"He knows not his sin against
the god, he knows not his transgression against the god and the
goddess. Yet the god has smitten, the goddess has departed from
him."[88]
[Footnote 87: Zimmern, _Babylonische Busspsalmen_, p. 63.]
[Footnote 88: Sayce, _Hibbert Lectures on the Religion of the Ancient
Babylonians_, p. 505. _Cf._ Mürdter-Delitzsch, _Geschichte Babyloniens
und Assyriens_, p. 38.]
So, also, the Hebrew psalmist cries out, "Who can understand his
errors? cleanse thou me from secret faults."[89] Unintentional error,
as Mr. Montefiore observes, would be as liable to incur divine
punishment as the most voluntary crime, if it infringed the tolerably
wide province in which the right or sanctity of Yahveh was
involved.[90] Whilst a deliberate moral iniquity was punished under
the penal law, a sin committed "through ignorance, in the holy things
of the Lord," required a sin- or trespass-offering for its
expiation.[91] Speaking of the developed sacrificial system of the
Jews, Professor Moore remarks, "The general rule in the Mishna is that
any transgression the penalty of which, if wilful, would be that the
offender be cut off, requires, if committed in ignorance or through
inadvertence, a _[h.]a[t.][t.][=a]th_ [or sin-offering]; the catalogue
of these transgressions ranges from incest and idolatry to eating the
(internal) fat of animals and imitating the composition of the sacred
incense, but does not include the commonest offences against
morals."[92] The Rabbis also maintained that a false oath, even if
made unconsciously, involves man in sin, and is punished as such.[93]
{230} We meet with a similar opinion in mediæval Christianity. The
principle laid down by St. Augustine,[94] and adopted by Canon
Law,[95] that "ream linguam non facit, nisi mens rea," was not always
acted upon. Various penitentials condemned to penance a person who, in
giving evidence, swore to the best of his belief, in case his
statement afterwards proved untrue.[96] In other cases, also, the
Church prescribed penances for mere misfortunes. If a person killed
another by pure accident, he had to do penance--in ordinary cases,
according to most English penitentials, for one year,[97] according to
various continental penitentials, for five[98] or seven[99] years;
whereas, according to the Penitential of Pseudo-Theodore, he who
accidentally killed his father or mother was to atone his deed with a
penance of fifteen years,[100] and he who accidentally killed his son
with a penance of twelve.[101] The Scotists even expressly declared
that the external deed has a moral value of its own, which increases
the goodness or badness of the agent's intention; and though this
doctrine was opposed by Thomas Aquinas, Bonaventura, Suarez, and other
leading theologians, it was nevertheless admitted by them that,
according to the will of God, certain external deeds entail a certain
accidental reward, the so-called _aureola_.[102] In some cases the
secular law, also, punishes misadventure on religious grounds. Thus
the Salic law treated with great severity any person who accidentally
put fire to a church, although it imposed no penalty on other cases of
{231} unintentional incendiary;[103] and even to this day the Russian
criminal law prescribes penitence for homicide by misadventure, "in
order to quiet the conscience of the culprit."[104] According to the
Koran, he who kills a believer by mistake shall expiate his deed, not
only by paying blood-money to the family of the dead (unless they
remit it), but by setting free a believing slave; and as to him who
cannot find the means, "let him fast for two consecutive months--a
penance this from God."[105]
[Footnote 89: _Psalms_, xix. 12.]
[Footnote 90: Montefiore, _Hibbert Lectures on the Religion of the
Ancient Hebrews_, p. 103. _Cf._ _ibid._ p. 515 _sq._]
[Footnote 91: _Leviticus_, iv. 22 _sqq._; v. 15 _sqq._ _Numbers_,
xv. 24 _sqq._]
[Footnote 92: Moore, 'Sacrifice,' in Cheyne and Black, _Encyclopædia
Biblica_, iv. 4205.]
[Footnote 93: Montefiore, _op. cit._ p. 558.]
[Footnote 94: St. Augustine, _Sermones_, clxxx. 2 (Migne, _Patrologiæ
cursus_, xxxviii. 973).]
[Footnote 95: Gratian, _Decretum_, ii. 22. 2. 3.]
[Footnote 96: _P[oe]nitentiale Bedæ_, v. 3 (Wasserschleben,
_Bussordnungen der abendländischen Kirche_, p. 226). _P[oe]nit.
Egberti_, vi. 3 (_ibid._ p. 238). _P[oe]nit. Pseudo-Theodori_, xxiv. 5
(_ibid._ p. 593).]
[Footnote 97: _P[oe]nit. Theodori_, i. 4. 7 (_ibid._ p. 188).
_P[oe]nit. Bedæ_, iv. 5 (_ibid._ p. 225). _P[oe]nit. Egberti_, iv. 11
(_ibid._ p. 235). According to _P[oe]nit. Pseudo-Theodori_, xxi. 2
(_ibid._ p. 586), the penance was to last for five years.]
[Footnote 98: _P[oe]nit. Hubertense_, 2 (_ibid._ p. 377). _P[oe]nit.
Merseburgense_, 2 (_ibid._ p. 391). _P[oe]nit. Bobiense_, 4 (_ibid._
p. 408). _P[oe]nit. Vindobonense_, 2 (_ibid._ p. 418). _P[oe]nit.
Cummeani_, vi. 2 (_ibid._ p. 478). _P[oe]nit. XXXV. Capitulornm_, 1
(_ibid._ p. 506). _P[oe]nit. Vigilanum_, 27 (_ibid._ p. 529).]
[Footnote 99: _P[oe]nit. Parisiense_, 1 (_ibid._ p. 412). _P[oe]nit.
Floriacense_, 2 (_ibid._ p. 424).]
[Footnote 100: _P[oe]nit. Pseudo-Theodori_, xxi. 18 (_ibid._ p. 588).]
[Footnote 101: _P[oe]nit. Pseudo-Theodori_, xxi. 19 (_ibid._ 588).]
[Footnote 102: Göpfert, _Moraltheologie_, i. 185.]
[Footnote 103: _Lex Salica_ (Harold's text), 71. Brunner,
_Forschungen_, p. 507, n. 1.]
[Footnote 104: Foinitzki, in _Le droit criminel des états européens_,
edited by von Liszt, p. 531.]
[Footnote 105: _Koran_, iv. 94.]
How shall we explain all these facts? Do they faithfully represent
ideas of moral responsibility? Do they indicate that, at the earlier
stages of civilisation, the outward event as such, irrespectively of
the will of the agent, is an object of moral blame?
Most of the statements which imply a perfect absence of discrimination
between accident and intention, refer to the system of private
redress. Under this system a personal injury is regarded as a matter
which the injured party or his kin have to settle for themselves. It
certainly does not allow them to treat the offender just as they
please; as we have seen, it is more or less regulated by custom. But
at the same time it makes considerable allowance for the personal
feelings of the sufferer, and these feelings are apt to be neither
impartial nor sufficiently discriminate. Whether, in a savage
community, public opinion prescribes, or merely permits, revenge in
cases of accidental injury, is a question which the ordinary
observations of travellers leave unanswered. It is important to note
that one of the first steps which early custom or law took towards a
restriction of the blood-feud was to save the life of the involuntary
manslayer. Moreover, in many cases where the system of revenge has
been succeeded by punishment, the injured party may still have a voice
in the matter. In Abyssinia, for instance, "a life for a life is the
sentence passed upon the murderer; but, obtaining {232} the consent of
the relatives of the deceased, he is authorised by law to purchase his
pardon."[106] According to ancient Swedish law, an injury could not be
treated as accidental unless the injured party acknowledged it as
such.[107] In England, even in the days of Henry III., the king could
not protect the manslayer from the suit of the dead man's kin,
although he had granted him pardon on the score of misadventure.[108]
Indeed, so recently as 1741, a royal order was made for a hanging in
chains "on the petition of the relations of the deceased."[109] And to
this day English criminal courts, when dealing with some slight
offence, mitigate the punishment "because the prosecutor does not
press the case," or even give him leave to settle the matter and
withdraw the prosecution.[110]
[Footnote 106: Harris, _Highlands of Æthiopia_, ii, p. 94.]
[Footnote 107: von Amira, _Nordgermanische Obligationenrecht_, i. 382.]
[Footnote 108: _Three Early Assize Rolls for the County of
Northumberland_, _sæc. XIII_, p. 98.]
[Footnote 109: Amos, _Ruins of Time_, p. 23.]
[Footnote 110: Kenny, _Outlines of Criminal Law_, p. 23.]
In the case of accidental homicide, deference may also have to be
shown for the supposed feelings of the dead man's ghost, which, angry
and bloodless, is craving for revenge and thirsting for blood. To
leave its desires ungratified would be both dangerous and unmerciful.
That this has something to do with the rigid demand of life for life
in the case of homicide by misadventure seems all the more likely as
in some instances when the involuntary manslayer is pardoned, other
blood is to be shed instead of his. Among the Yao and Wayisa, near
Lake Nyassa, it is the custom "by way of propitiation to give up a
slave or some relative of the criminal's, to 'go along with the one
who was slain,' and this seems to be invariably done when one is
killed by accident, in which case the slayer may escape, the deputy
taking as it were his place."[111] We may assume that a similar idea
underlies the ancient Roman law which provided a ram to be sacrificed
in the place of the involuntary manslayer.
[Footnote 111: Macdonald, in _Jour. Anthr. Inst._ xii. 108.]
But the dead man's ghost not only persecutes his own family if
**neglectful of their duty, it also attacks the manslayer {233} and
cleaves to him like a miasma. The manslayer is consequently regarded
as unclean, and has, both for his own sake and for the sake of the
community in which he lives, to undergo some ceremony of purification
in order to rid himself of the dangerous and infectious pollution.
This notion will be illustrated in a following chapter. In the present
connection I merely desire to point out that the pollution is there,
whether the shedding of blood was intentional or accidental. And, as
will be shown, though this state of uncleanness does not intrinsically
involve guilt, it easily becomes a cause of moral disapproval, whilst
the ceremony of purification is apt to be looked upon in the light of
punishment. We shall also find that the notion of a persecuting ghost
may be replaced by the notion of an avenging god, it being a fact of
common occurrence that the doings or functions of one mysterious being
are transferred to another. We shall, finally, see that the infection
of uncleanness is shunned by gods even more than it is shunned by men;
and this largely helps to explain the attitude of religion towards
unintentional and unforeseen shedding of human blood.
There are other, more general reasons for the want of discrimination
often displayed by religion in regard to the accidental transgression
of a religious law. When a thing is _taboo_ in the strict sense of the
word, it is supposed to be charged with mysterious energy which will
injure or destroy the person who eats or touches the forbidden thing,
whether he does so wilfully or by mistake. As Professor Jevons
correctly observes, "the action of taboo is always mechanical; contact
with the tabooed object communicates the taboo infection as certainly
as contact with water communicates moisture. . . . The intentions of
the taboo-breaker have no effect upon the action of the taboo; he may
touch in ignorance, or for the benefit of the person he touches, but
he is tabooed as surely as if his motive were irreverent or his action
hostile."[112] So, also, according to primitive notions, the effect of
a curse or an {234} oath is purely mechanical; hence a person who
swears falsely in ignorance exposes himself to no less danger than a
person who perjures himself knowingly. As regards religious offences
in the strictest sense of the term--that is, offences against some god
which are supposed to arouse his resentment--it should be remembered
that, just as a man who is hurt is unable to judge on the matter as
coolly as does the community at large, so a god whose ordinances are
transgressed is thought to be less discriminating in his anger than a
disinterested human judge, and, consequently, more apt to be
influenced by the external event. And where nearly every calamity is
regarded as a divine punishment, a person who is suffering without
knowing what sin he has committed, naturally infers that a god is
punishing him for some secret fault.
[Footnote 112: Jevons, _Introduction to the History of Religion_, p. 91.]
Thus it may be that, in the point which we are discussing, as in
various other respects, the religious beliefs of a people do not
faithfully represent their general notions of moral responsibility. It
is profoundly wrong to assume, from the legend of Oedipus and other
similar cases, that the ancient Greeks, in general, held a person
"equally responsible for an accident which occurs to him, and for an
act of which the agent is aware." Even the transgression of a sacred
law, when committed in ignorance, seems to have excited pitiful horror
rather than moral indignation. Oedipus had killed his father in
self-defence, and married his mother, perfectly ignorant of his
relation to them. The gods punished the Thebans with pestilence for
harbouring such a wretch on their soil. But when "time that sees all,
found him out in his unwitting sin," it was not blame, but terror and
deep compassion for the unhappy man that, according to the
tragedian,[113] spoke from the lips of the people. Moreover, in the
latter tragedy Oedipus persistently vindicates his innocence:--"Whatever
I have done was done unwittingly"--"Before the law I have no guilt."
And, addressing himself to Creon, who has accused him of parricide and
incest, he {235} exclaims:--"O shameless soul, where, thinkest thou,
falls this thy taunt,--on my age, or on thine own? Bloodshed--incest
--misery--all this thy lips have launched against me,--all this that
I have borne, woe is me! by no choice of mine: for such was the pleasure
of the gods, wroth, haply, with the race from of old. . . Tell me, now,
--if, by voice of oracle, some divine doom was coming on my sire, that he
should die by a son's hand, how couldst thou justly reproach me
therewith, who was then unborn, whom no sire had yet begotten, no
mother's womb conceived? And if, when born to woe--as I was born--I
met my sire in strife, and slew him, all ignorant what I was doing,
and to whom,--how couldst thou justly blame the unknowing deed?[114]
Never was a more pathetic appeal made to the court of Justice from the
indiscriminate verdict of angry gods.
[Footnote 113: Sophocles, _[OE]dipus Tyrannus_.]
[Footnote 114: _Idem_, _[OE]dipus Coloneus_, 960 _sqq._ (Jebb's
translation, p. 155).]
Whilst the grossest want of discrimination may thus be explained from
revengeful feelings and superstitious beliefs, there still remain a
multitude of cases which must be regarded as genuine expressions of
moral indignation. As to these, it should, first, be remembered that
even the reflecting moral consciousness may hold a person blamable for
the unintentional and unforeseen infliction of an injury, namely, in
cases where it assumes want of proper foresight. Now, as we know, it
is often difficult enough to discern whether, or to what extent, an
unintended injury is due to carelessness on the part of the agent;
sometimes even it is no easy thing to tell whether an injury was
intended or not. It is not to be expected, then, that distinctions of
so subtle a nature should be properly made by the uncultured mind, and
least of all is it to be expected that such distinctions should be
embodied in early custom and law, which are based on average cases and
allow of no minute individualisation. It has been observed that the
roughness of Teutonic justice may be partly explained from the
difficulty in getting any proof of intention or of its absence, from
the lack of any proper distinctions between {236} misadventure and
carelessness, and from the fact that the so-called misadventures of
early times covered many a blameworthy act.[115] And all this holds
good not merely of the ancient Teutons. It may further be said that
the more defective the power of discrimination, the greater is the
tendency to presume guilt. In Morocco a man who runs away after
killing another is presumed to have committed the deed intentionally,
however innocent he really may be. Among the Teutons the presumption
was always against the manslayer; he had to proclaim what he had done,
and to prove that the deed was not intended[116]--unless, indeed, the
misadventure belonged to a certain type of injuries which by their
very nature entailed no guilt. For instance, if a man carried a spear
level on his shoulder and another ran upon the point, he was free from
blame; whereas, if harm ensued by pure accident from a distinct act,
the agent was liable.[117] As von Amira remarks, the Swedish notion of
_vadhaværk_ was not a merely negative conception, but implied that
there was danger connected with the act.[118]
[Footnote 115: Pollock and Maitland, _op. cit._ i. 55; ii. 475, 483.
von Amira, _Nordgermanisches Obligationenrecht_, i. 377 _sq._]
[Footnote 116: Wilda, _op. cit._ i. 345. Brunner, _Forschungen_, p.
500 _sq._ Pollock and Maitland, _op. cit._ ii. 471.]
[Footnote 117: Wilda, _op. cit._ p. 584. Trummer, _op. cit._ i. 427.
Brunner, _Forschungen_, p. 499 _sq._ von Amira, 'Recht,' in Paul's
_Grundriss der germanischen Philologie_, ii. pt. ii. 172. Pollock and
Maitland, _op. cit._ i. 53 _sq._]
[Footnote 118: von Amira, _Nordgermanisches Obligationenrecht_, i. 377.]
Where the distinction between guilt and innocence is difficult to
draw, it may be wise policy to presume guilt. According to Sir R.
Burton, the Mpongwe jurists say that little or no difference is
generally made between wilful murder and accidental manslaughter in
order that people should be more careful;[119] and a similar idea may
lie at the bottom of the Dahoman law which punishes capitally any
person whose house takes fire, even if it happens accidentally.[120]
But the presumption of guilt is not only, nor in the first place,
owing to considerations of social utility, combined with a reckless
indifference to undeserved suffering. {237} The unreflecting mind is
shocked by the harm done, and cares little for the rest. It does not
press the question whether the harm was caused by the agent's will or
not. It does not make any serious attempt to separate the external
event from the will, and it is inclined to assume that there is a
coincidence between the two. This is not altogether bad psychology
since, as a rule, men will what they do. "Le fait juge l'homme," says
an old French proverb; and in morals, also, "the tree is known by the
fruit." However, there are cases of injuries in which not even
uncivilised men can fail to discover, at once, the absence of any evil
intention. This certainly does not mean that the injurer escapes all
censure. Every feeling of pain, sympathetic pain included, which is
caused by a living being, has a certain tendency to give rise to an
aggressive impulse towards its cause; hence savages, even though they
distinguish between intentional and unintentional harm, are inclined
to impute some degree of guilt to any person who involuntarily commits
a forbidden deed, though he be in reality quite innocent. But the
reason for this is only want of due reflection. If it is clearly
understood that a certain event is the result of merely external
circumstances, that it was neither intended by the agent nor could
have been foreseen by him, in other words, that it in no way was
caused by his will--then there could be no moral indignation at all.
It would be simply absurd to suppose that an outward event as such,
assumed to be absolutely unconnected with any defect of will, could
ever give rise to moral blame. Such an event could not even call forth
a feeling of revenge. Sudden anger itself cools down when it appears
that the cause of the inflicted pain was a mere accident. Even a dog,
as has been observed, distinguishes between being stumbled over and
being kicked.
[Footnote 119: Burton, _Two Trips to Gorilla Land_, i. 105.]
[Footnote 120: Ellis, _E[(w]e-speaking Peoples of the Slave Coast_,
p. 224.]
That the indiscriminate attitude of early custom and law towards
accidental injuries does not imply any difference in principle between
the enlightened and unenlightened moral consciousness as regards the
subject of moral valuation, {238} becomes perfectly obvious when we
consider what a great influence the outward event exercises upon moral
estimates even among ourselves. "The world judges by the event, and
not by the design," says Adam Smith. "Everybody agrees to the general
maxim, that as the event does not depend on the agent, it ought to
have no influence upon our sentiments, with regard to the merit or
propriety of his conduct. But when we come to particulars, we find
that our sentiments are scarce in any one instance exactly conformable
to what this equitable maxim would direct."[121] Even in the criminal
laws of civilised nations chance still plays a prominent part.
According to the present law of England, though a person is not
criminally liable for the involuntary and unforeseen consequences of
acts which are themselves permissible, the case is different if he
commits an act which is wrong and criminal,[122] or, as it seems, even
if he commits an act which is wrong without being forbidden by
law.[123] Thus death caused unintentionally is regarded as murder, if
it takes place within a year and a day[124] as the result of an
unlawful act which amounts to a felony.[125] For instance, a person
kills another accidentally by shooting at a domestic fowl with intent
to steal it, and he will probably be convicted of murder.[126] Again,
a near-sighted man drives at a rapid rate, sitting at the bottom of
his cart, and thereby causes the death of a foot-passenger; he is
guilty of manslaughter.[127] A man recklessly and wantonly throws a
lighted match into a haystack, careless whether it take fire or not,
and so burns down the stack; his crime is arson. But if he did not
intend to throw the lighted match on the haystack, he would probably
not be guilty of any offence at all, "unless death was caused, in
which case he would be guilty of manslaughter."[128] Even if the
unintended death is to some {239} extent owing to the negligence of
the injured party himself, it may be laid to the charge of the
injurer. This at all events was the law in Hale's time, "If a man," he
says, "receives a wound, which is not in itself mortal, but either for
want of helpful applications, or neglect thereof, it turns to a
gangrene, or a fever, and that gangrene or fever be the immediate
cause of his death, yet, this is murder or manslaughter in him that
gave the stroke or wound."[129] So far as I know, the severity of the
English law on unintentional homicide--which, in fact, is a survival
of ancient Teutonic law[130]--is without a parallel in the European
legislation of the present day. Both the French[131] and the
German[132] laws are much less severe; and so is the Ottoman Penal
Code,[133] and Muhammedan law in general.[134] Yet the unintended
deadly consequence of a criminal act always affects the punishment
more or less.
[Footnote 121: Adam Smith, _Theory of Moral Sentiments_, p. 152.]
[Footnote 122: According to Harris (_Principles of the Criminal Law_,
p. 156), the act should be a _malum in se_, not merely a _malum quia
prohibitum_.]
[Footnote 123: Kenny, _op. cit._ p. 41.]
[Footnote 124: Stephen, _History of the Criminal Law of England_,
iii. 8.]
[Footnote 125: _Ibid._ iii. 22.]
[Footnote 126: _Ibid._ iii. 83.]
[Footnote 127: Harris, _op. cit._ p. 157.]
[Footnote 128: Stephen, _op. cit._ ii. 113.]
[Footnote 129: Hale, _History of the Pleas of the Crown_, i. 428.]
[Footnote 130: _Lex Wisigothorum_, vi. 5. 6: "Si dum quis calce, vel
pugno, aut quacumque percussione injuriam conatur inferre, homicidii
extiterit occasio, pro homicidio puniatur."]
[Footnote 131: _Code Pénal_, art. 309.]
[Footnote 132: _Strafgesetzbuch_, art. 226.]
[Footnote 133: _Ottoman Penal Code_, art. 177. _Cf._ _ibid._ art. 174.]
[Footnote 134: Sachau, _op. cit._ p. 761 _sq._]
I presume that nobody after due deliberation would maintain that the
moral guilt of the offender is enhanced by the death of him whom he
involuntarily happened to kill. Sir James Stephen, nevertheless, makes
an attempt to defend, from a moral point of view, the severe English
law on the subject, which he thinks "is much to be preferred to the
law of France." He asks, "Is there anything to choose morally between
the man who violently stabs another in the chest with the definite
intention of killing him, and a man who stabs another in the chest
with no definite intention at all as to the victim's life or death,
but with a feeling of indifference whether he lives or dies?"[135]
Perhaps not. But I venture to maintain that there is a considerable
moral difference between the man who shoots at another with the
definite intention of killing him, and the man who, firing at
another's chickens, with the intention of stealing them, accidentally
kills the owner whom {240} he does not see. It will perhaps be argued
that the law has a utilitarian purpose, its object being to make
people more careful. But if this were the case one would expect that
the law should punish with equal severity acts which involve the same
degree of danger, and which result in similar injuries. To fire at a
sparrow may be as dangerous to people's lives as to fire at another
person's chicken, and, in the latter case, the danger is hardly
increased by the intention to steal the chicken. I take the truth to
be this. The degree of punishment corresponds to the degree of
indignation aroused by the deed. Public imagination is shocked by the
actual event. The agent, being guilty either of criminal intention, or
of gross disregard of other people's interests, or of criminal
heedlessness, is a proper object of punishment. Owing to that want of
discrimination which characterises the popular mind, his guilt is
exaggerated on account of the grave consequences of his act; and the
result is that he is punished not only for the fault of his will, but
for his bad luck as well. Sir James Stephen seems to admit this, when
saying that the shock which the offence gives to the public feeling
requires that the offender should himself suffer "a full equivalent
for what he has inflicted," from which "he ought to be excused only on
grounds capable of being understood by the commonest and most vulgar
minds."[136] Though thoroughly dissenting from the opinion that
criminal law should try to gratify the feelings of "the commonest and
most vulgar minds," I think that, as a matter of fact, it is not much
above their standard of justice, being in the main an expression of
public sentiments.
[Footnote 135: Stephen, _op. cit._ iii. 91 _sq._]
[Footnote 136: _Ibid._ iii. 91.]
* * * * *
In the cases which we have hitherto considered the external event
which a person brings about involuntarily, either makes him liable to
punishment though he really is free from guilt, or increases his
punishment beyond the limits of his guilt. But the influence of chance
also shows {241} itself in the opposite way. A person who is guilty of
carelessness generally escapes all punishment if no injurious result
follows, and an unsuccessful attempt to commit a criminal act, if
punished at all, is, as a rule, punished much less severely than the
accomplished act.
The Hottentots nowadays punish attempt, but only leniently.[137] The
Wadshagga punish it less severely than the accomplished act.[138]
Among some of the Marshall Islanders it is not punished at all.[139]
The same holds good of the Ossetes[140] and Swanetians[141] of the
Caucasus, as also of ancient Russian law.[142] The Teutons, as a
general rule, had no punishment for him who tried to do harm, but
failed; and if they did punish an unsuccessful attempt, the penalty
was out of proportion lenient.[143] This feature of ancient Teutonic
law has had a lasting effect upon European legislation, largely
through the influence it exercised upon the Italian jurists of the
Middle Ages,[144] whose theories laid the foundation of modern laws
and doctrines on attempt. In conformity with the Roman law, they held
attempts to commit crimes to be punishable, and in atrocious cases
they even admitted that the attempt might be subject to the same
punishment as the accomplished crime. But their general theory was
that it should be punished less severely, and that the penalty should
be lenient in proportion as the actual deed was remote from the act
intended.[145] These views were generally adopted by the later
legislation. Among present European lawbooks, the French Code
Pénal[146] is almost the only one that punishes an attempt {242} with
the same severity as the finished crime.[147] And the French law on
the subject is of modern origin; before the year IV. the present rule
was applied only to the _conatus proximus_ in a few specified cases of
a very heinous character.[148]
[Footnote 137: Kohler, in _Zeitschr. f. vergl. Rechtswiss._ xv. 353.]
[Footnote 138: Merker, quoted by Kohler, _ibid._ xv. 63.]
[Footnote 139: Kohler, _ibid._ xiv. 418.]
[Footnote 140: Kovalewsky, _Coutume contemporaine_, p. 296 _sq._]
[Footnote 141: Dareste, _Nouvelles études d'histoire du droit_, p. 237.]
[Footnote 142: Kovalewsky, _op. cit._ pp. 291, 299.]
[Footnote 143: Wilda, _op. cit._ p. 598 _sqq._ Zachariä, _Die Lehre
vom Versuche der Verbrechen_, i. 164 _sqq._; ii. 130 _sq._ Brunner,
_Deutsche Rechtsgeschichte_, ii. 558 _sqq._ Pollock and Maitland,
ii. 475, 509.]
[Footnote 144: Seeger, _Versuch der Verbrechen in der Wissenschaft des
Mittelalters_, p. 8.]
[Footnote 145: Zachariä, _op. cit._ i. 169; ii. 141. von
Feuerbach-Mittermaier, _Lehrbuch des Peinlichen Rechts_, p. 74.]
[Footnote 146: _Code Pénal_, art. 2: "Toute tentative de crime qui
aura été manifestée par un commencement d'exécution, si elle n'a été
suspendue ou si elle n'a manqué son effet que par des circonstances
indépendantes de la volonté de son auteur, est considérée comme le
crime même."]
[Footnote 147: Chauveau and Hélie, _Théorie du Code Pénal_, i. 347 _sq._]
[Footnote 148: _Ibid._ i. 337 _sq._]
Besides the provision of the Code Pénal concerning attempt, there are
a few other exceptions, of an earlier date, to the general rule. The
Romans seemed to have followed the principle "dolus pro facto
accipitur,"[149] at least if the crime attempted was a serious
one.[150] A somewhat similar line was adopted by ancient Irish law.
The general impression produced by the rules in the commentary to the
Book of Aicill is, that the attempt to commit an injurious act was
treated as equivalent to its commission, unless the result was very
insignificant. Thus, if an attempt was made to slay, or to inflict an
injury which would endure for life, and blood was shed, the fine was
the same as if the attempt had succeeded; whereas, if the injury did
not amount to the shedding of blood, the fine was reduced
one-half.[151] And if a man went to kill one person and killed another
by mistake, a fine for the intention, in addition to the fine due to
the friends of the murdered man, was due to him whose death was
intended, even though no injury was actually done to him.[152] In
England, at the end of the Middle Ages, the will was taken for the
deed in cases of obvious attempts to murder; but this rule appears to
have been considered too severe--even in an age when death was the
common punishment for felony--and to have fallen into disuse several
centuries ago.[153]
[Footnote 149: _Digesta_, xlviii. 8. 7.]
[Footnote 150: Seeger, _Versuch der Verbrechen nach römischcm Recht_,
pp. 1, 2, 49. _Idem_, _Versuch der Verbrechen in der Wissenschaft des
Mittelalters_, p. 9. Mommsen, _Römisches Strafrecht_, p. 97 _sq._
Apuleius, _Florida_, iv. 20:--"In maleficiis etiam cogitata scelera
non perfecta adhuc vindicantur, cruenta mente, pura manu. Ergo sicut
ad poenam sufficit meditari punienda."]
[Footnote 151: _Ancient Laws of Ireland_, iii. pp. cviii. _sq._ 139.]
[Footnote 152: Cherry, _Growth of Criminal Law in Ancient
Communities_, p. 32.]
[Footnote 153: Stephen, _op. cit._ ii. 222 _sq._ Thomas Smith,
_Common-wealth of England_, p. 194 _sq._]
{243} The question, which attempts should be punished, and even the
elementary question, what constitutes an attempt, have been answered
differently by different jurists and legislators.[154] In England all
attempts whatever to commit indictable offences, whether felonies or
misdemeanours, are punishable by law.[155] The French[156] and
German[157] codes, on the other hand, do not punish, except in a few
particular cases, attempts to commit _délits_ or _Verbrechen_, that
is, what the English jurists would describe as misdemeanours.
[Footnote 154: See Cohn, _Zur Lehre vom versuchten und unvollendeten
Verbrechen_, i. 6 _sqq._]
[Footnote 155: Stephen, _op. cit._ ii. 224.]
[Footnote 156: _Code Pénal_ art. 3.]
[Footnote 157: _Strafgesetzbuch_, art. 43.]
Again, should a person be punished for attempting to commit a crime in
a manner in which success is physically impossible, as if he attempts
to steal from a pocket which is empty, or puts into a cup pounded
sugar which he believes to be arsenic? This question has given rise to
a whole literature. Seneca's statement that "he who mixes a sleeping
draught, believing it to be poison, is a poisoner,"[158] seems to have
had the support of Roman law.[159] In England, some time ago, the man
who attempted to pick an empty pocket, was not held liable for an
attempt to steal;[160] but this case has been overruled, and it
appears now to be the law that an indictment would lie for such an
attempt.[161] According to the French[162] and Italian[163] codes, it
would not be punished, according to some German law-books, it
would;[164] whilst the Strafgesetzbuch contains no special provisions
for attempts of a similar character.
[Footnote 158: Seneca, _De beneficiis_, v. 13. _Cf._ _Idem_, _Ad
Serenum_, 7.]
[Footnote 159: Seeger, _Versuch nach römischem Recht_, p. 30.]
[Footnote 160: Stephen, _op. cit._ ii. 225.]
[Footnote 161: Harris, _Principles of the Criminal Law_, p. 209 n. _c._]
[Footnote 162: Stephen, _op. cit._ ii. 225.]
[Footnote 163: Alimena, in _Le droit criminel des états européens_,
ed. by von Liszt, p. 123.]
[Footnote 164: von Feuerbach-Mittermaier, _op. cit._ p. 76. Cohn, _op.
cit._ i. 14.]
Finally there are different rules as to the stage at which an attempt
begins to be criminal, or as to the distinction between attempts and
acts of preparation. The Romans, it is supposed, drew no such
distinction.[165] The French law regards as permissible acts of
preparation many {244} things which in England would be punished as
attempts.[166] In England lighting a match with intent to set fire to
a haystack has been held to amount to a criminal attempt to burn it,
although the defendant blew out the match on seeing that he was
watched. But it was said in the same case that, if he had gone no
further than to buy a box of matches for the purpose, he would not
have been liable, the act being too remote from the offence to be
criminal.[167] "Liability will not begin until the offender has done
some act which not only manifests his _mens rea_ but also goes some
way towards carrying it out."[168]
[Footnote 165: Seeger, _Versuch nach römischem Recht_, p. 49.]
[Footnote 166: Chauveau and Hélie, _op. cit._ i. 357 _sqq._ Stephen,
_op. cit._ ii. 226.]
[Footnote 167: Holmes, _Common Law_. p. 67 _sq._]
[Footnote 168: Kenny, _op. cit._ p. 79.]
If we go a step further, we come to designs unaccompanied by any
attempt whatever to realise them. The laws of all countries agree as
to the principle that an outward event is requisite for the infliction
of punishment. "Cogitationis p[oe]nam nemo patitur."[169]
[Footnote 169: _Digesta_, xlviii. 19. 18.]
This fact again illustrates the influence which external deeds
exercise upon the moral feelings of men. In the average man moral
emotions are hardly ever called into existence by calm and penetrating
reflection. There are certain phenomena which for some reason or other
are apt to arouse in him such emotions, but he does not seek for them.
They must force themselves upon his mind, and the more vigorously they
do so, the stronger are the emotions they excite. Nothing makes a
greater impression on him than facts which are perceptible by the
senses. He will admit that an intention, or even a mere wish, to do
something wrong is wrong by itself, but an outward event is generally
needed for shaking him up. This, I think, is the original reason why
persons have not been punished for intentions unaccompanied by
external deeds. No doubt, the principle that "the thought of man shall
not be tried," is strongly supported by the fact that, as a mediæval
writer puts it, "the devil himself knoweth not the thought of
man."[170] But considering how ready people {245} have been to presume
guilt in cases of unintentional injuries, it seems very incredible
that they originally refrained from punishing bare intentions merely
on account of insufficient evidence. Indeed, as an exception to the
rule, in a few cases when the crime designed is regarded with extreme
horror, the very intention may give such a shock to public imagination
as to call for punishment.
[Footnote 170: Quoted by Pollock and Maitland, _op. cit._ ii. 474.]
According to Chinese law, "any person convicted of a design to kill
his or her father or mother, grandfather or grandmother, whether by
the father's or mother's side; and any woman convicted of a design to
kill her husband, husband's father or mother, grandfather or
grandmother, shall, whether a blow is, or is not struck in
consequence, suffer death by being beheaded."[171] This exceptional
law obviously owes its origin to the extreme reverence in which
parents and ancestors are held by the Chinese, and to the wife's
subjection to her husband. In mediæval laws referring to heresy we
have another instance of punishment being inflicted for a mere state
of mind without any corresponding act. According to Julius Clarus,
this exception to the rule is due to the fact that the crime of heresy
itself consists in "sola mentis cogitatione."[172] But the real reason
why the law in this case troubled itself about men's thoughts, and
even allowed them to be put on their trial for their tacit opinions on
bare suspicion, is the detestation in which heresy was held and the
extreme attention it attracted. By all this, of course, I do not mean
to deny that a judicious and enlightened legislator may find other
grounds for taking no notice of mere intentions than their inability
to arouse public indignation. I only speak of matters of
fact.
[Footnote 171: _Ta Tsing Leu Lee_, sec. cclxxxiv. p. 305.]
[Footnote 172: Julius Clarus, _Practica Criminalis_, qu. 91 (_Opera
omnia_, ii. 625).]
Again, as regards acts of preparation and many cases of unsuccessful
attempts, it may be said that the agent perhaps would have altered his
mind before he came to the point, or that the failure of his attempt
was possibly due {246} to a change of intention in the last
moment.[173] But there are innumerable cases in which the attempt,
with no less certainty than the accomplished crime, displays a
criminal intention which is final. And it is particularly instructive
to note that, among the very peoples who treat unintentional injuries
with the greatest severity, unsuccessful attempts are treated with the
greatest leniency. This is well illustrated by a comparison between
Teutonic and Roman law; in either case the former chiefly looks at the
event, the latter chiefly at the intention of the agent. If there is
no punishment for a bare attempt to commit a crime, that is because
such an attempt makes no impression on the public. If an attempt is
punished more heavily according as it is more advanced, that is
because it calls forth greater indignation in proportion as it comes
near to the crime intended. And if even the _conatus proximus_ is
punished with less severity than the accomplished crime, that is
because the indignation it evokes is less. This explanation is
corroborated by concessions made by theorisers who have in vain
endeavoured to find more rational grounds for existing laws on
attempt. They have ultimately found it necessary to resort to phrases
such as "the natural sense of justice," or to appeal to the feelings
of the multitude.[174] {247} M. Rossi observes, "Nous pensons que le
sens commun et la conscience publique ont constamment tenu le même
langage. 'Le délit n'a pas été consommé, donc la punition doit être
moindre.' Cette idée de proportion matérielle, ce sentiment de
justice, grossière j'en conviens, est naturel à l'homme."[175] This is
the view taken by the unreflecting moral consciousness. To him whose
feelings are tempered by thought, "a man," as Seneca says, "is no less
a brigand, because his sword becomes entangled in his victim's
clothes, and misses its mark."[176]
[Footnote 173: As a rule, the man who voluntarily desists from the
attempt to commit a crime would not be punished at all (see Seeger,
_Versuch nach römischem Recht_, p. 50; Charles V.'s _Peinliche
Gerichts Ordnung_, art. 178; the French _Code Pénal_, art. 2; the
Italian _Codice Penale_, art. 61; Finger, _Compendium des
österreichischen Rechtes--Strafrecht_, i. 181; and, for various German
laws, Zachariä, _op. cit._ ii. 311 _sq._, and Cohn, _op. cit._ i. 12
_sq._), or he would be punished more leniently than if there had been
no such desistance (Zachariä, ii. 239, _sqq._ Cohn, i. 12 _sq._). On
this subject see also Herzog, _Rücktritt vom Versuch und Thätige
Reue_, _passim_.]
[Footnote 174: Lelièvre, _De conatu delinquendi_, p. 361 (quoted by
Zachariä, _op. cit._ ii. 66, n. 2): "Ceterum libenter fateor, me
potius sentire aliquam necessitatem paululum levius in perfectum
crimen ac in maleficium consummatum animadvertendi, quam reddere
posse claram necessitates rationem." Abegg, _Die verschiedenen
Strafrechtstheorieen_, p. 65: "Für uns folgt aber jene nothwendige
Beobachtung der concreten Unterschiede, in dem Gebiete der
Erscheinung, nach der aus dem Gerechtigkeitsprincipe abgeleiteten
Regel, dass Jeder für _seine That_, und was er _verdient_ habe, leiden
solle." Zachariä, _op. cit._ ii. 51:--"So macht sich in dem
natürlichen Gerechtigkeits-Gefühl des Einzelnen und des ganzen Volkes
auch von selbst die Unterscheidung zwischen der Strafe des vollendeten
und der des blos versuchten Verbrechens geltend. . . . Es kann
freilich seyn, dass der grösste Theil der Menschen für ein solches
natürliches Gefühl keine Gründe anzugeben vermag; allein das
Strafrecht, welches ja gerade auf die grosse Menge zu wirken hat, kann
dessenungeachtet solche unwillkürlich im Volke sich geltend machende
Ansichten nicht unberücksichtigt lassen." _Cf._ also Finger, _op.
cit._ i. 177.]
[Footnote 175: Rossi, _Traité de droit pénal_, ii, 318.]
[Footnote 176: Seneca, _Ad Serenum_, 7.]
* * * * *
In the same way as moral indignation, is moral approval influenced by
external events. Though we would not praise a person for some deed of
his which we clearly recognise to reflect no merit on his will, the
benefits which result from a good act easily induce us to exaggerate
the goodness of the agent. On the other hand, it is success alone that
confers upon a man the full reward which he deserves; good intentions
without corresponding deeds meet with little applause even when the
failure is due to mere misfortune. "In our real feeling or sentiment,"
Hume observes, "we cannot help paying a greater regard to one whose
station, joined to virtue, renders him really useful to society, than
to one who exerts the social virtues only in good intentions and
benevolent affections."
* * * * *
It is thus only from want of due reflection that moral judgments are
influenced by outward deeds. Owing to its very nature, the moral
consciousness, when sufficiently influenced by thought, regards the
will as the only proper object of moral disapproval or moral praise.
That moral qualities are internal, is not an invention of any
particular moralist or any particular religion; it has been recognised
by thoughtful men in many different countries and different {248}
ages. "He that is pure in heart is the truest priest," said
Buddha.[177] In the Taouist work, 'Kan ying peen,' it is written:--"If
you form in your heart a good intention, although you may not have
done any good, the good spirits follow you. If you form in your heart
a bad intention, although you may not have done any harm, the evil
spirits follow you."[178] According to the Thâi-Shang, mere wishes are
sufficient to constitute badness.[179] One of the Pahlavi texts puts
the following words into the mouth of the Spirit of Wisdom:--"To be
grateful in the world, and to wish happiness for every one; this is
greater and better than every good work."[180] God, says the Koran,
"will not catch you up for a casual word in your oaths, but He will
catch you up for what your hearts have earned."[181] According to the
Rabbis, the thought of sin is worse than sin, and an unchaste thought
is a "wicked thing."[182] It was an ancient Mexican maxim that "he who
looks too curiously on a woman commits adultery with his eyes"[183]--a
striking parallel to the passage in St. Matthew v. 28. "Voluntas
remuneratur, non opus," says the Canonist. "Licet gladio non occidat,
voluntate tamen interficit." "Non ideo minus delinquit, cui sola deest
facultas."[184]
[Footnote 177: Hopkins, _Religions of India_, p. 319.]
[Footnote 178: Douglas, _Confucianism and Taouism_, p. 270.]
[Footnote 179: _Thâi-Shang_, 4.]
[Footnote 180: _Dînâ-î-Maînôgî Khirad_, lxiii. 3 _sqq._ _Cf._ _ibid._
i. 10, where it is said that the good work which a man does
unwittingly is little of a good work, though the sin which a man
commits unwittingly amounts to a sin in its origin.]
[Footnote 181: _Koran_, ii. 225. _Cf._ Ameer Ali, _Ethics of Islâm_,
p. 26.]
[Footnote 182: Schechter, in Montefiore, _op. cit._ p. 558. _Cf._
Deutsch, _Literary Remains_, p. 52.]
[Footnote 183: Sahagun, _Historia general de las cosas de Nueva
España_, vi. 22, vol. ii. 147: "Dice el refran que el _que
curiosamente mira á la muger adultéra_ con la vista."]
[Footnote 184: Gratian, _Decretum_, ii. 33. 3. 25, 30, 29.]