MOTIVES
NO enlightened and conscientious moral judge can regard his judgment
as final, unless he know the motive, or motives, of the volition by
which his judgment is occasioned. But in ordinary moral estimates
little attention is paid to motives. Men desire that certain acts
should be performed, and that certain other acts should be abstained
from. The conative causes of acts or forbearances are not equally
interesting, and they are often hidden. They are considered only in
proportion as the moral judgment is influenced by reflection.
Take, for instance, acts which are performed from a sense of duty. It
is commonly said that a person ought to obey his conscience. Yet, in
point of fact, by doing so he may expose himself to hardly less
censure than does the greatest villain. The reason for this is not far
to seek. A man's moral conviction is to some extent an expression of
his character, hence he may be justly blamed for having a certain
moral conviction. And the blame which he may deserve on that account
is easily exaggerated, partly because people are apt to be very
intolerant concerning opinions of right and wrong which differ from
their own, partly owing to the influence which external events
exercise upon their minds.
Somewhat greater discrimination is shown in regard to motives
consisting of powerful non-volitional conations which in no way
represent the agent's character, but to which {284} he yields
reluctantly, or by which he is carried away on the spur of the moment.
In many such cases even the law--which regards it as no excuse if a
person commits a crime from a feeling of duty[1]--displays more or
less indulgence to the perpetrator of a harmful deed.
[Footnote 1: _Cf._ the case Reg. _v._ Morby, _Law Reports, Cases
determined in the Queen's Bench Division_, viii. 571 _sqq._]
Thus, in the eye of the law, compulsion is oftentimes a ground of
extenuation. Strictly speaking, a volition can never be compelled into
existence;[2] to act under compulsion really means to act under the
influence of some non-voluntary motive, so powerful that every
ordinary human will would yield to it. As Aristotle puts it, pardon is
given when "a man has done what he ought not to have done through fear
of things beyond the power of human nature to endure, and such that no
man could undergo them. And yet, perhaps, there are some things which
a man must never allow himself to be compelled to do, but must rather
choose death by the most exquisite torments."[3] This principle has
been in some degree recognised by legislation. In many cases of
felony, if a married woman commits the crime in the presence of her
husband, the law of England presumes that she acts under his coercion,
and therefore excuses her from punishment, unless the presumption of
law is rebutted by evidence;[4] but children and servants are not
acquitted if committing crimes by the command of a parent or a
master.[5] Besides the presumption made in favour of married women,
compulsion by threats of injury to person or property is recognised as
an excuse for crime only, as it seems, in cases in which the
compulsion is applied by a body of rebels or rioters, and in which the
offender takes a subordinate part in the offence.[6] In a time of
peace, on the other hand, though a man be violently assaulted, and
have no other possible {285} means of escaping death but by killing an
innocent person, if he commit the act he will be guilty of murder;
"for he ought rather to die himself, than kill an innocent."[7] It has
even been laid down as a general principle that "the apprehension of
personal danger does not furnish any excuse for assisting in doing any
act which is illegal."[8] But the English law relating to _duress per
minas_, and to constraint in general, seems to be harsher both than
most modern continental laws[9] and than Roman law.[10] Some of the
Italian practitioners were even of opinion that a person who committed
homicide by the command of his prince or some other powerful man was
exempt from all punishment.[11] According to the Talmud, any offence
perpetrated under compulsion or in mortal fear is excusable in the eye
of the law, excepting only murder and adultery.[12]
[Footnote 2: Bradley, _Ethical Studies_, p. 40, n. 1.]
[Footnote 3: Aristotle, _Ethica Nicomachea_, iii. i. 7 _sq._]
[Footnote 4: Hale, _History of the Pleas of the Crown_, i. 44 _sqq._
434. Harris, _Principles of the Criminal Law_, p. 25. Stephen,
_History of the Criminal Law of England_, ii. 105 _sq._]
[Footnote 5: Hale, _op. cit._ i. 44. Harris, _op. cit._ p. 26.]
[Footnote 6: Stephen, _op. cit._ ii. 106.]
[Footnote 7: Hale, _op. cit._ i. 51. Harris, _op. cit._ p. 24 _sq._]
[Footnote 8: Denman, C. J., in Reg. _v._ Tyler, reported in Carrington
and Payne, _Reports of Cases argued and ruled at Nisi Prius_, viii. 621.]
[Footnote 9: _Code Pénal_, art. 64; Chauveau and Hélie, _Théorie du
Code Pénal_, i. 534 _sqq._ Italian _Codice Penale_, art. 49. Spanish
_Código Penal reformado_, art. 8, § 9 _sqq._ Finger, _Compendium des
österreichischen Rechtes--Das Strafrecht_, i. 119. Foinitzki, in
_Législation pénale comparée_, edited by von Liszt, p. 530 (Russian
law). _Ottoman Penal Code_, art. 42.]
[Footnote 10: Mommsen, _Römisches Strafrecht_, p. 653. Janka, _Der
strafrechtliche Notstand_, p. 48.]
[Footnote 11: Janka, _op. cit._ p. 60. A different view, however, is
expressed by Covarruvias (_De matrimoniis_, ii. 3. 4. 6 _sq._ [_Opera
omnia_, i. 139]):--"Metus numquam excusat nec a mortali, nec a veniali
crimine. Peccatum maximum malum, nec eo quid grauius."]
[Footnote 12: Benny, _Criminal Code of the Jews according to the
Talmud Massecheth Synhedrin_, p. 125.]
Suppose, again, that the motive of breaking the law is what has been
called "compulsion by necessity." The old instance of shipwrecked
persons in a boat unable to carry them all is a standing illustration
of this principle. Sir James Stephen says, that "should such a case
arise, it is impossible to suppose that the survivors would be
subjected to legal punishment."[13] Yet, in a very similar case,
occurring in the year 1884, they were. Three men and a boy escaped in
an open boat from the shipwreck of the yacht _Mignonette_. After
passing eight days without food, and seeing no prospect of relief, the
men killed the boy, who was {286} on the verge of death, in order to
feed on his body. Four days later they were rescued by a passing ship;
and, on their arrival in England, two of the men were tried for the
murder of the boy. The defence raised was that the act was necessary
for the purpose of self-preservation. But it was held by the Court for
Crown Cases Reserved, that such necessity was no justification of the
act of causing death when there was a distinct intention to take away
the life of another innocent person. However, the sentence of death
was afterwards commuted by the Crown to six months' imprisonment.[14]
In the same case it was even said that if the boy had had food in his
possession, and the others had taken it from him, they would have been
guilty of theft.[15] Bacon's proposition that "if a man steal viands
to satisfy his present hunger, this is no felony nor larceny,"[16] is
not law at the present day.[17] It was expressly contradicted by Hale,
who lays down the following rule:--"If a person, being under necessity
for want of victuals, or clothes, shall upon that account
clandestinely, and _animo furandi_ steal another man's goods, it is
felony and a crime by the laws of England punishable with death; altho
the judge, before whom the trial is, in this case (as in other cases
of extremity) be by the laws of England intrusted with a power to
reprieve the offender before or after judgment, in order to the
obtaining the king's mercy."[18] Britton excuses "infants under age,
and poor people, who through hunger enter the house of another for
victuals under the value of twelve pence."[19] According to the
Swedish Westgöta-Lag, a poor man who can find no other means of
relieving himself and his family from hunger may thrice with impunity
appropriate food belonging to somebody else, but if he does so a
fourth time he is punished for theft.[20] The Canonist says,
"Necessitas legem non {287} habet"[21]--"Raptorem vel furem non facit
necessitas, sed voluntas."[22] This principle has the sanction of the
Gospel. Jesus said to the Pharisees, "Have ye not read what David did,
when he was an hungered, and they that were with him; How he entered
into the house of God, and did eat the shewbread, which was not lawful
for him to eat, neither for them which were with him, but only for the
priests?"[23]
[Footnote 13: Stephen, _op. cit._ ii. 108. So, also, according to
Bacon's _Maxims of the Law_, reg. 5 (_Works_, vii. 344), homicide is
in such a case justifiable.]
[Footnote 14: Reg. _v._ Dudley and Stephens, in _Law Reports, Cases
determined in the Queen's Bench Division_, xiv. 273 _sqq._]
[Footnote 15: _Ibid._ xiv. 276.]
[Footnote 16: Bacon, _Maxims of the Law_, reg. 5 (_Works_, vii. 343).]
[Footnote 17: Reg. _v._ Dudley and Stephens, in _Law Reports, Queen's
Bench Division_, xiv. 286.]
[Footnote 18: Hale, _op. cit._ i. 54.]
[Footnote 19: Britton, i. 11, vol. i. 42.]
[Footnote 20: _Westgöta-Lagen II._ þiufua bolker, 14, p. 164 _sq._]
[Footnote 21: Gratian, _Decretum_, iii. 1. 11.]
[Footnote 22: _Ibid._ iii. 5. 26.]
[Footnote 23: _St. Matthew_, xii. 1 _sqq._]
According to Muhammedan law, the hand is not to be cut off for
stealing any article of food that is quickly perishable, because it
may have been taken to supply the immediate demands of hunger.[24] We
are told that "no Chinese magistrate would be found to pass sentence
upon a man who stole food under stress of hunger."[25] In ancient
Peru, according to Herrera, "he that robb'd without need was banish'd
to the Mountains Andes, never to return without the Inga's leave, and
if worth it paid the value of what he had taken. He that for want
stole eatables only was reprov'd, and receiv'd no other punishment,
but enjoyn'd to work, and threatened, that if he did so again, he
should be chastiz'd by carrying a stone on his back, which was very
disgraceful."[26] We even hear of savages who regard "compulsion by
necessity" as a ground of extenuation. Among the West African Fjort
robbery of plantations, committed in a state of great hunger, is
exempt from punishment in case there is no deception or secrecy in the
matter; however, payment for damage done is expected.[27] Cook says of
the Tahitians:--"Those who steal clothes or arms, are commonly put to
death, either by hanging or drowning in the sea; but those who steal
provisions are bastinadoed. By this practice they wisely vary the
punishment of the same crime, when committed from different
motives."[28]
[Footnote 24: Lane, _Manners and Customs of the Modern Egyptians_,
p. 121.]
[Footnote 25: Giles, _Strange Stories from a Chinese Studio_, ii. 217,
n. 5.]
[Footnote 26: Herrera, _General History of the West Indies_, iv. 337.]
[Footnote 27: Dennett, in _Jour. African Society_, i. 276.]
[Footnote 28: Cook, _Journal of a Voyage round the World_, p. 41 _sq._]
{288} A special kind of self-preservation is self-defence. Here the
ground of justification is not merely the motive of the agent, but
also the wrongness or criminality of the act which he tries to
prevent. Hence the right of inflicting injuries as a necessary means
of self-preservation has been more generally recognised in the case of
self-defence than in other cases of "compulsion by necessity." "Vim vi
repellere" was regarded by the ancients as a natural right,[29] as a
law "non scripta, sed nata";[30] and the same view was taken by the
Canonist.[31] Even in the savage world self-defence and killing in
self-defence are not infrequently justified by custom.[32] But in
other instances the influence of the external event makes itself felt
also in the case of self-defence. Among the Fjort, though a person who
kills another in self-defence is exempt from punishment, he is
expected to pay damages.[33] Among the Hottentots self-defence is
regarded as a mitigating circumstance, but not as an excuse in the
full sense of the word.[34] Among other peoples it is not considered
at all.[35] Among the ancient Teutons a person who committed homicide
in self-defence had to pay _wer_;[36] and in Germany such a person
seems to have been subject to punishment still in the later Middle
Ages.[37] In England, in the thirteenth century, he was considered to
deserve royal pardon, but he also needed it.[38]
[Footnote 29: _Digesta_, xliii. 16. i. 27: "Vim vi repellere licere
Cassius scribit idque ius natura comparatur."]
[Footnote 30: Cicero, _Pro Milone_, 4 (10).]
[Footnote 31: Gratian, _Decretum_, i. 1. 7.]
[Footnote 32: Merker, quoted by Kohler, in _Zeitschr. f. vergl.
Rechtswiss._ xv. 64 (Wadshagga). Lang, in Steinmetz, _Rechtsverhältnisse_,
p. 257 (Washambala).]
[Footnote 33: Dennett, in _Jour. African Society_, i. 276.]
[Footnote 34: Kohler, in _Zeitschr. f. vergl. Rechtswiss._ xv. 353.]
[Footnote 35: Steinmetz, _Rechtsverhältnisse_, p. 50 (Banaka and
Bapuku). Tellier, _ibid._ p. 176 (Kreis Kita). Marx, _ibid._ p. 357
(Amahlubi). Senfft, _ibid._ p. 450 (Marshall Islanders).]
[Footnote 36: Geyer, _Lehre von der Nothwehr_, p. 88 _sqq._ Trummer,
_Vorträge über Tortur, &c._ i. 430. Stemann, _Den danske Retshistorie
indtil Christian V.'s Lov_, p. 659. _Cf._ _Leges Henrici I._ lxxx. 7;
lxxxvii. 6.]
[Footnote 37: Trummer, _op. cit._ i. 428 _sqq._ von Feuerbach-Mittermaier,
_Lehrbuch des Peinlichen Rechts_, p. 64. Brunner observes (_Deutsche
Rechtsgeschichte_, ii. 630), "Nicht das Benehmen des Getöteten war die
causa des Todschlags, sondern nur die feindselige Absicht des
Todschlagers."]
[Footnote 38: Bracton, _De Legibus et Consuetudinibus Angliæ_, fol.
132 b, vol. ii. 366 _sqq._ Pollock and Maitland, _History of English
Law before the Time of Edward I._ ii. 574.]
{289} In self-defence there should of course be a proportion between
the injury which the aggressor intended to inflict and the injury
inflicted on him by the person attacked. The most widely-recognised
ground on which life is allowed to be taken in self-defence is danger
of death. But it is not the exclusive ground. Among the Wakamba "a
thief entering a village at night can be killed"; though, if he is,
the incident generally gives rise to a blood-feud between his family
and the family of the slayer.[39] In Uganda "there is no penalty for
killing a thief who enters an enclosure at night";[40] and among
various peoples at higher stages of culture we likewise find the
provision that a nocturnal thief or house-breaker may be killed with
impunity, though a diurnal thief may not.[41] This law, however, seems
to have been due not so much to the fact that by night the proprietor
had less chance of recovering his property, as to the greater danger
to which he was personally exposed.[42] The Roman Law of the Twelve
Tables allows the diurnal thief also to be killed, in case he defends
himself with a weapon;[43] and, as regards the nocturnal thief, Ulpian
expressly says that the owner of the property is justified in killing
him only if he cannot spare the life of the thief without peril to
himself.[44] The same rule was laid down by Bracton[45] and by
Grotius. The latter observes, "No one ought to be slain directly for
the sake of mere things, which would be done if I were to kill an
unarmed flying thief with a missile, and so recover my goods: but if I
am myself in danger of life, then I may repel the danger even with
danger to the life of another; nor does this cease to hold, however I
have come into that danger, whether by trying to retain my property,
or to {290} recover it, or to capture the thief; for in all these
cases I am acting lawfully according to my right."[46]
[Footnote 39: Decle, _Three Years in Savage Africa_, p. 488.]
[Footnote 40: Ashe, _Two Kings of Uganda_, p. 294.]
[Footnote 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).]
[Footnote 42: _Cf._ Gregory IX. _Decretales_, v. 12. 3; _Mishna_, fol.
72, quoted by Rabbinowicz, _Législation criminelle du Talmud_, p. 122.]
[Footnote 43: _Lex Duodecim Tabularum_, viii. 12. Cicero, _Pro
Milone_, 3 (9).]
[Footnote 44: _Digesta_, xlviii. 8. 9.]
[Footnote 45: Bracton, _op. cit._ fol. 144 b, vol. ii. 464 _sq._]
[Footnote 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]
[Footnote 47: Harris, _op. cit._ p. 145.]
[Footnote 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.]
[Footnote 49: St. Augustine, _De libero arbitrio_, i. 5 (Migne,
_Patrologiæ cursus_, xxxii. 1227).]
[Footnote 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 {291} 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 {292} 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 {293} husband
who thus avenges himself, the jury show great indulgence to him.[67]
[Footnote 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).]
[Footnote 52: Herrera, _op. cit._ iv. 338.]
[Footnote 53: _Ta Tsing Leu Lee_, sec. cclxxxv. p. 307.]
[Footnote 54: Hodgson, _Miscellaneous Essays_, ii. 235, 236, 272.]
[Footnote 55: Burton, _Sind Revisited_, ii. 54 _sq._]
[Footnote 56: _Digesta_, xlviii. 5. 21 _sq._]
[Footnote 57: Gellius, _Noctes Atticæ_, x. 23. 5. _Cf._ Mommsen,
_Römisches Strafrecht_, p. 625.]
[Footnote 58: _Novellæ_, cxvii. 15.]
[Footnote 59: Demosthenes, _Contra Aristocratem_, 53, p. 637.]
[Footnote 60: Wilda, _Strafrecht der Germanen_, p. 823. Nordström,
_op. cit._ ii. 62 _sq._ Stemann, _op. cit._ p. 325.]
[Footnote 61: _Laws of Alfred_, ii. 42.]
[Footnote 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).]
[Footnote 63: Hale, _op. cit._ i. 486. Harris, _op. cit._ p. 145.
Cherry, _Lectures on the Growth of Criminal Law_, p. 82 _sq._]
[Footnote 64: Italian _Codice Penale_, art. 377. Spanish _Código Penal
reformado_, art. 438. _Ottoman Penal Code_, art. 188.]
[Footnote 65: Günther, _Idee der Wiedervergeltung_, iii. 233 _sqq._]
[Footnote 66: _Code Pénal_, art. 324.]
[Footnote 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 {294} 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]
[Footnote 68: Maclean, _op. cit._ p. 143. _Cf._, however, _ibid._
p. 110.]
[Footnote 69: Wilda, _op. cit._ p. 562. Stemann, _op. cit._ p. 582 _sq._]
[Footnote 70: Wilda, _op. cit._ pp. 180, 565. Labbe-Mansi, _Sacrorum
Conciliorum collectio_, xii. 289.]
[Footnote 71: Nordström, _op. cit._ ii. 414 _sq._]
[Footnote 72: _Ibid._ ii. 416.]
[Footnote 73: Wilda, _op. cit._ p. 889.]
[Footnote 74: _Laws of Ine_, 12. _Cf._ Stephen, _op. cit._ i. 62.]
[Footnote 75: _Laws of Æthelstan_, iv. 4.]
[Footnote 76: _Laws of Wihtræd_, 25.]
[Footnote 77: Crawfurd, _op. cit._ iii. 115.]
[Footnote 78: _Institutiones_, iv. 1. 5.]
[Footnote 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 {295}
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]
[Footnote 80: Taplin, 'Narrinyeri,' in Woods, _Native Tribes of South
Australia_, p. 34 _sq._]
[Footnote 81: Kubary, 'Die Palau-Inseln,' in _Journal des Museum
Godeffroy_, iv. 43 _sq._]
[Footnote 82: Macdonald, _Africana_, i. 172.]
[Footnote 83: Macpherson, _op. cit._ p. 82.]
[Footnote 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]
[Footnote 85: Herrera, _op. cit._ iv. 337 _sq._]
[Footnote 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 {296} of refuge if "he lie not in
wait,"[90] or if he thrust his neighbour "suddenly without
enmity."[91]
[Footnote 87: Goitein, _Das Vergeltungsprincip im biblischen und
taltmudischen Strafrecht_, p. 33 _sqq._]
[Footnote 88: _Exodus_, xxi. 14.]
[Footnote 89: _Deuteronomy_, xix. 11 _sq._]
[Footnote 90: _Exodus_, xxi. 13.]
[Footnote 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]
[Footnote 92: Leist, _Græco-italische Rechtsgeschichte_, pp. 325, 352.]
[Footnote 93: Plato, _Leges_, ix. 867.]
[Footnote 94: Aristotle, _Ethica Nicomachea_, iii. 1. 21.]
[Footnote 95: _Ibid._ v. 8. 9.]
[Footnote 96: _Ibid._ vii. 7. 3.]
[Footnote 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 {297} 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]
[Footnote 98: Kovalewsky, _Coutume contemporaine_, p. 291.]
[Footnote 99: _Ancient Laws of Ireland_, iii. pp. xciii. cx.]
[Footnote 100: Wilda, _op. cit._ p. 560 _sqq._, 701. Stemann, _op.
cit._ p. 574. von Amira, in Paul's _Grundriss der germanischen
Philologie_, ii. pt. ii. 174.]
[Footnote 101: Wilda, _op. cit._ p. 569. von Amira, _loc. cit._ p. 173.]
[Footnote 102: _Das Ostfriesische Land-Recht_, iii. 17 _sq._]
[Footnote 103: _Cf._ Stephen, _op. cit._ iii. 33.]
[Footnote 104: Beaumanoir, _Coutumes du Beauvoisis_, xxx. 101, vol. i.
454 _sq._]
[Footnote 105: Gregory III. _Judicia congrua penitentibus_, 3
(Labbe-Mansi, _op. cit._ xii. 289).]
[Footnote 106: Coke, _Third Institute_, p. 55.]
[Footnote 107: Hume, _Commentaries on the Law of Scotland_, i. 365.]
[Footnote 108: Günther, _op. cit._ iii. 256 _sqq._]
[Footnote 109: _Ibid._ iii. 255 _sq._]
It has been said that a man who acts under the influence of great
passion has not, at the time, a full knowledge of the nature and
quality of his act, and that {298} the clemency of the law is "a
condescension to the frailty of the human frame, to the _furor
brevis_, which, while the frenzy lasteth, rendereth the man deaf to
the voice of reason."[110] But the main cause for passion extenuating
his guilt is not the intellectual disability under which he acts, but
the fact that he is carried away by an impulse which is too strong for
his will to resist. This is implied in the provision of the law, that
"provocation does not extenuate the guilt of homicide unless the
person provoked is at the time when he does the act deprived of the
power of self-control by the provocation which he has received."[111]
[Footnote 110: Foster, _Report of Crown Cases_, p. 315.]
[Footnote 111: Stephen, _Digest_, art. 246, p. 188.]
That anger has been so generally recognised as an extenuation of guilt
is largely due to the fact that the person who provokes it is himself
blamable; both morality and law take into consideration the degree of
provocation to which the agent was exposed. But, at the same time, the
pressure of a non-volitional motive on the will may by itself be a
sufficient ground for extenuation. In certain cases of mental disease
a morbid impulse or idea may take such a despotic possession of the
patient as to drive him to the infliction of an injury. He is mad, and
yet he may be free from delusion and exhibit no marked derangement of
intelligence. He may be possessed with an idea or impulse to kill
somebody which he cannot resist. Or he may yield to a morbid impulse
to steal or to set fire to houses or other property, without having
any ill-feeling against the owner or any purpose to serve by what he
does.[112] The deed to which the patient is driven is frequently one
which he abhors, as when a mother kills the child which she loves
most.[113] In such cases the agent is of course acquitted by the moral
judge, and if he is condemned by the law of his country and its
guardians, the reason for this can be nothing but ignorance. We must
remember that this form of madness was hardly known even to medical
{299} men till the end of the 18th century,[114] when Pinel, to his
own surprise, discovered that there were "many madmen who at no period
gave evidence of any lesion of the understanding, but who were under
the dominion of instinctive and abstract fury, as if the affective
faculties had alone sustained injury."[115] And there can be no doubt
that the fourteen English judges who formulated the law on the
criminal responsibility of the insane, made no reference to this
_manie sans délire_ simply because they had not sufficient knowledge
of the subject with which they had to deal.[116]
[Footnote 112: Maudsley, _Responsibility in Mental Disease_, p. 133
_sqq._ von Krafft-Ebing, _Lehrbuch der gerichtlichen Psychopathologie_,
p. 308 _sqq._]
[Footnote 113: Gadelius, _Om tvångstankar_, p. 168 _sq._ Paulhan,
_L'activité mentale_, p. 374.]
[Footnote 114: Maudsley, _op. cit._ p. 141.]
[Footnote 115: Pinel, _Traité médico-philosophique sur l'aliénation
mentale_, p. 156: "Je ne fut pas peu surpris de voir plusieurs aliénés
qui n'offroient à aucune époque aucune lésion de l'entendement, et qui
étoient dominés par une sorte d'instinct de fureur, comme si les
facultés affectives seules avoient été lésées."]
[Footnote 116: Sir James Stephen (_Digest_, art. 28, p. 20 _sq._)
thinks it _possible_ that, according to the present law of England, an
act is not criminal if the person who does it is, at the time when it
is done, prevented by any disease affecting his mind from controlling
his own conduct, unless the absence of the power of control has been
produced by his own default.]
* * * * *
That moral judgments are generally passed, in the first instance, with
reference to acts immediately intended, and consider motives only in
proportion as the judgment is influenced by reflection, holds good,
not only of moral blame, but of moral praise. Every religion presents
innumerable examples of people who do "good deeds" only in expectation
of heavenly reward. This implies the assumption that the Deity judges
upon actions without much regard to their motives; for if motives were
duly considered, a man could not be held rewardable for an act which
he performs solely for his own benefit. We are told that the homage
which the Chinese "render the gods and goddesses believed to be
concerned in the management of the affairs of this world is
exceedingly formal, mechanical, and heartless," and that "there seems
to be no special importance attached to purity of heart."[117]
According to Caldwell, "the Hindu religionist enjoins the act alone,
and affirms that motives have nothing to do with merit."[118] The
argument, "Obey the law because it will {300} profit you to do so,"
constitutes the fundamental motive of Deuteronomy, as appears from
phrases like these: "That it may go well with thee," "That thy days
may be prolonged."[119] Speaking of the modern Egyptians, Lane
observes that "from their own profession it appears that they are as
much excited to the giving of alms by the expectation of enjoying
corresponding rewards in heaven as by pity for the distresses of their
fellow-creatures, or a disinterested wish to do the will of God."[120]
Something similar may be said, not only of the "good deeds" of
Muhammedans, but of those of many Christians. Did not Paley expressly
define virtue as "the doing good to mankind, in obedience to the will
of God, and for the sake of everlasting happiness"?[121]
[Footnote 117: Doolittle, _Social Life of the Chinese_, ii. 397.]
[Footnote 118: Caldwell, _Tinnevelly Shanars_, p. 35.]
[Footnote 119: _Cf._ Montefiore, _Hibbert Lectures_, p. 531.]
[Footnote 120: Lane, _Modern Egyptians_, p. 293.]
[Footnote 121: Paley, _Principles of Moral and Political Philosophy_,
i. 7 (_Complete Works_, ii. 38).]
Such views, however, cannot hold their ground against the verdict of
the scrutinising moral consciousness. They have been repeatedly
contradicted by the great teachers of morality. Confucius required an
inward sincerity in all outward practice, and poured scorn on the
pharisaism which contented itself with the cleansing of the outside of
the cup and platter.[122] He said that, "in the rites of mourning,
exceeding grief with deficient rites is better than little
demonstration of grief with superabounding rites; and that in those of
sacrifice, exceeding reverence with deficient rites is better than an
excess of rites with but little reverence."[123] "Sacrifice is not a
thing coming to a man from without; it issues from within him, and has
its birth in his heart. When the heart is deeply moved, expression is
given to it by ceremonies."[124] The virtuous man offers his
sacrifices "without seeking for anything to be gained by them."[125]
"The Master said, 'See what a man does. Mark his motives.'"[126] The
popular Taouist work, called 'The Book of Secret Blessings,'
inculcates the necessity {301} of purifying the heart as a preparation
for all right-doing.[127] The religious legislator of Brahmanism,
whilst assuming in accordance with the popular view that the
fulfilment of religious duty will be always rewarded to some extent,
whatever may be the motive, maintains that the man who fulfils his
duties without regard to the rewards which follow the fulfilment, will
enjoy the highest happiness in this life and eternal happiness
hereafter.[128] According to the Buddhistic Dhammapada, "if a man
speaks or acts with an evil thought, pain follows him, as the wheel
follows the foot of the ox that draws the carriage. . . . If a man
speaks or acts with a pure thought, happiness follows him, like a
shadow that never leaves him."[129] In his description of the
Buddhists of Mongolia, the Rev. James Gilmour observes:--"Mongol
priests recognise the power of motive in estimating actions . . . .
The attitude of the mind decides the nature of the act. He that offers
a cup of cold water only, in a proper spirit, has presented a gift
quite as acceptable as the most magnificent of donations."[130] With
reference to the Hebrews, Mr. Montefiore says:--"If it were true that
the later Judaism of the law laid exclusive stress in its moral
teaching upon the mere outward act and not upon the spirit--upon doing
rather than being, as we might nowadays express it--we should scarcely
find that constant harping upon the heart as the source and seat of
good and evil. What more legal book than Chronicles? Yet it is there
that we find the earnest supplication for a heart directed towards
God. . . . The eudæmonistic motive is strongest in Deuteronomy; it is
weakest with the Rabbis."[131] Few sayings are quoted and applied more
frequently in the Rabbinical literature than the adage which closes
those tractates of the Mishna which deal with the sacrificial
law:--"He that brings few offerings is as he that brings many; let his
heart be directed {302} heavenward."[132] The same faults which Jesus
chastises in the hypocritical Rabbis of his day are also chastised in
the Talmud. It is said, "Before a man prays let him purify his
heart,"[133] and, "Sin committed with a good motive is better than a
precept fulfilled from a bad motive."[134] Rabbi Elazar says, "No
charity is rewarded but according to the degree of benevolence in it,
for it is said, 'Sow (a reward) for yourselves in giving alms as
charity, you will reap according to the benevolence.'"[135] Nor is the
doctrine which requires disinterested motives for the performance of
good deeds foreign to Muhammedan moralists. "Whatever we give," says
the author of the Akhlâk-i-Jelâli, "should be given in the fulness of
zeal and good-will. . . . We should spend it simply to please God, and
not mix the act with any meaner motive, lest thereby it be rendered
null and void."[136]
[Footnote 122: _Cf._ Legge, _Religions of China_, p. 261 _sq._; Girard
de Rialle, _Mythologie comparée_, p. 214.]
[Footnote 123: _Lî Kî_, ii. 1. 2. 27. _Cf._ _Lun Yü_, iii. 4. 3.]
[Footnote 124: _Lî Kî_, xxii. 1.]
[Footnote 125: _Ibid._ xxii. 2.]
[Footnote 126: _Lun Yü_, ii. 10. 1 _sq._]
[Footnote 127: Douglas, _Confucianism and Taouism_, p. 272.]
[Footnote 128: Wheeler, _History of India_, ii. 478.]
[Footnote 129: _Dhammapada_, 1 _sq._]
[Footnote 130: Gilmour, _Among the Mongols_, p. 239.]
[Footnote 131: Montefiore, _op. cit._ pp. 483, 533. _1 Chronicles_,
xxii. 19; xxviii. 9; xxix. 18 _sq._ _2 Chronicles_, xi. 16; xv. 12;
xvi. 9.]
[Footnote 132: Montefiore, _op. cit._ p. 484.]
[Footnote 133: _Ibid._ p. 174.]
[Footnote 134: Nazir, fol. 23 B, quoted by Hershon, _Treasures of the
Talmud_, p. 74.]
[Footnote 135: Succah, fol. 49 B, _ibid._ p. 11.]
[Footnote 136: Quoted by Ameer Ali, _Ethics of Islâm_, p. 38 _sq._]