FORBEARANCES AND CARELESSNESS--CHARACTER
THE observation has often been made that in early moral codes the
so-called negative commandments, which tell people what they ought not
to do, are much more prominent than the positive commandments, which
tell them what they ought to do. The main reason for this is that
negative commandments spring from the disapproval or acts, whereas
positive commandments spring from the disapproval of forbearances or
omissions, and that the indignation of men is much more easily aroused
by action than by the absence of it. A person who commits a harmful
deed is a more obvious cause of pain than a person who causes harm by
doing nothing, and this naturally affects the question of guilt in the
eyes of the multitude. A scrutinising judge of course carefully
distinguishes between willfulness and negligence, whereas, to his
mind, a forbearance is morally equivalent to an act. The unreflecting
judge, on the other hand, is much less concerned with the question of
wilfulness than with the distinction between acting and not-acting.
Even the criminal laws of civilised nations take little cognisance of
forbearances and omissions;[1] and one reason for this is that they
evoke little public indignation. Even if it be admitted that the rules
of beneficence, so far as details are concerned, must be left in a
great measure to {304} the jurisdiction of private ethics, the limits
of the law on this head, as Bentham remarks, seem "to be capable of
being extended a good deal farther than they seem ever to have been
extended hitherto." And he appropriately asks, "In cases where the
person is in danger, why should it not be made the duty of every man
to save another from mischief, when it can be done without prejudicing
himself, as well as to abstain from bringing it on him?"[2]
[Footnote 1: Stephen, _History of the Criminal Law of England_, ii.
113. Hepp, _Zurechnung auf dem Gebiete des Civilrechts_, p. 115 (Roman
law).]
[Footnote 2: Bentham, _Principles of Morals and Legislation_, p. 322
_sq._ To a certain extent, however, this has been admitted by
legislators even in the Middle Ages. Frederick II.'s Sicilian Code
imposed a penalty on persons who witnessed conflagrations or
shipwrecks without helping the victims, and a fine of four augustales
on anyone who, hearing the shrieks of an assaulted woman, did not
hurry to her rescue (_Constitutiones Napolitana sive Siculæ_, i. 28,
22 [Lindenbrog, _Codex legum antiquarum_, pp. 715, 712]). Bracton says
(_De Legibus et Consuetudinibus Angliæ_, fol. 121, vol. ii. 280 _sq._)
that he who could rescue a man from death and did not do it, ought not
to be exempt from punishment. It was a principle of the Canon law that
he who does not prevent the infliction of an injury upon his neighbour
when it lies in his power to do so, is to be regarded as an accomplice
in the offence (Geyer, _Lehre von der Nothwehr_, p. 74. Gregory IX.
_Decretales_, v. 12, 6. 2: "Qui potuit hominem liberare a morte, et
non liberavit, eum occidit").]
The more scrutinising the moral consciousness, the greater the
importance which it attaches to positive commandments. This is well
illustrated by a comparison between Old and New Testament morality. As
Professor Seeley observes,[3] "the old legal formula began 'thou shalt
not,' the new begins with 'thou shalt.' The young man who had kept the
whole law--that is, who had refrained from a number of actions--is
commanded to do something, to sell his goods and feed the poor.
Condemnation was passed under the Mosaic law upon him who had sinned,
who had done something forbidden--the soul that sinneth shall die;
Christ's condemnation is pronounced upon those who had not done
good--'I was an hungered and ye gave me no meat.' The sinner whom
Christ habitually denounces is he who has done nothing." This
characteristic is repeatedly manifested in His parables--as in the
case of the priest and Levite who passed by on the other side; in the
case of Dives, of whom no ill is recorded except that a beggar lay at
his {305} gate full of sores and yet no man gave unto him; in the case
of the servant who hid in a napkin the talent committed to him.
However, to say that the new morality involved the discovery of "a new
continent in the moral globe,"[4] is obviously an exaggeration. The
customs of all nations contain not only prohibitions, but positive
injunctions as well. To be generous to friends, charitable to the
needy, hospitable to strangers, are rules which, as will be seen, may
be traced back to the lowest stages of savagery known to us. The
difference in question is only one of degree. Of the Bangerang tribe
in Victoria Mr. Curr observes:--"Aboriginal restraints were, in the
majority of cases, though not altogether, of a negative character; an
individual might not do this, and might not eat that, and might not
say the other. What he should do under any circumstances, or that he
should do anything, were matters with which custom interfered less
frequently."[5]
[Footnote 3: Seeley, _Ecce Homo_, p. 176.]
[Footnote 4: _Ibid._ p. 179.]
[Footnote 5: Curr, _Recollections of Squatting in Victoria_, p. 264 _sq._]
Whilst the unreflecting mind has a tendency to overlook or underrate
the guilt of a person who, whether wilfully or by negligence, causes
harm by doing nothing, it is on the other hand, apt to exaggerate the
guilt of a person who, not wilfully but out of heedlessness or
rashness, causes harm by a positive act. In reality the latter person
is blamable not for what he did, but for what he omitted to do, for
want of due attention, for not thinking of the probable consequences
of his act or for insufficient advertence to them. But the superficial
judge largely measures the agent's guilt by the actual harm done, and
in many cases even attributes to carelessness what was due to sheer
misfortune.
As Sir F. Pollock and Prof. Maitland rightly observe, it is not true
that barbarians will not trace the chain of causation beyond its
nearest link--that, for example, they will not impute one man's death
to another unless that other has struck a blow which laid a corpse at
his feet.[6] {306} Among the Wanyoro, should a girl die in childbirth,
the seducer is also doomed to die, unless he ransom himself by payment
of some cows.[7] Among the Wakamba, if a man is the second time guilty
of manslaughter in a state of drunkenness, the elders may either
sentence him to death, "or make the seller of drink pay compensation
to the family of the victim."[8] According to the native code of
Malacca, if vicious buffaloes or cattle "be tied in the highway, where
people are in the habit of passing and repassing, and gore or wound
any person, the owner shall be fined one tahil and one paha, and pay
the expense necessary for the cure of the wounded individual. Should
he be gored to death, then the owner shall be fined according to the
Diyat, because the owner is criminal in having tied the animal in an
improper place."[9] In the Laws of Alfred it is said that, if a man
have a spear over his shoulder and anybody stake himself on it, the
man with the spear has to pay the _wer_.[10] According to an ancient
custom, in vogue in England as late as the thirteenth century, one who
was accused of homicide was, before going to the wager of battle,
expected to swear that he had done nothing through which the dead man
had become "further from life and nearer to death";[11] and damages
which the modern English lawyer would without hesitation describe as
"too remote" were not too remote for the author of the so-called 'Laws
of Henry I.'[12] "At your request I accompany you when you are about
your own affairs; my enemies fall upon and kill me; you must pay for
my death.[13] You take me to see a wild beast show or that interesting
spectacle a madman; beast or madman kills me; you must pay. You hang
up your sword; some one else knocks it down so that it cuts me; you
must pay."[14] In all these cases you did something that helped to
bring {307} about death or wound, and you are consequently held
responsible for the mishap.
[Footnote 6: Pollock and Maitland, _History of English Law before the
Time of Edward I._ ii. 470.]
[Footnote 7: _Emin Pasha in Central Africa_, p. 83.]
[Footnote 8: Decle, _Three Years in Savage Africa_, p. 487.]
[Footnote 9: Newbold, _British Settlements in the Straits of Malacca_,
ii. 256 _sq._]
[Footnote 10: _Laws of Alfred_, 36.]
[Footnote 11: _Leges Henrici I._ xc. 11. Bracton, _op. cit._
fol. 141 b, vol. ii. 440 _sq._]
[Footnote 12: Pollock and Maitland, _op. cit._ ii. 470 _sq._]
[Footnote 13: _Leges Henrici I._ lxxxviii. 9.]
[Footnote 14: _Ibid._ xc. 11. Pollock and Maitland, _op. cit._ ii. 471.]
But though early custom and law may be anxious enough to trace an
event to its source, they easily fail to distinguish between external
and internal causes, to discover where there is guilt or not, and, in
case of carelessness, to determine the magnitude of the offender's
guilt. Ancient Teutonic law, as we have seen, distinguished between
_vili_ and _vadhi_. It punished the involuntary manslayer less heavily
than the voluntary one, but it punished him all the same; and whether
the unintended deed was combined with heedlessness or was purely
accidental was a question with which the law did not at all concern
itself.[15] According to the Laws of [Hv]ammurabi, "if the doctor has
treated a gentleman for a severe wound with a lancet of bronze, and
has caused the gentleman to die, or has opened an abscess of the eye
for a gentleman with the bronze lancet and has caused the loss of the
gentleman's eye, one shall cut off his hands."[16] In the Mosaic law
distinction was made between presence and absence of enmity in the
manslayer, but the difference between carelessness and misfortune was
not considered,[17] except when the instrument of death was a goring
ox.[18] However, in this, as in many other respects, great progress
was made by the later legislation of the Jews. The Rabbis took
considerable pains to distinguish between purely accidental homicide
and homicide due to carelessness; the former they exempted from all
punishment, whereas the latter incurred the punishment of confinement
to a city of refuge.[19] They even distinguished between cases in
which the death was exclusively due to the carelessness of the agent,
and cases in which the deceased contributed to it by some blamable act
of his own. A father or a teacher {308} who in punishing his son or
pupil unintentionally caused his death, and a person who by order of
the Sanhedrim inflicted corporal punishment on a culprit and in doing
so happened by mistake to kill him--such persons were not confined in
a city of refuge, but escaped punishment altogether.[20] Whatever else
may be said of these provisions, they certainly show remarkable
discernment in a point where legislators of a ruder type have been
very indiscriminate. In the oldest English records we see no attempt
to distinguish cases in which the dead man himself was reprehensible
from others in which no fault could be imputed to him, and we find
that many horses and boats bore the guilt which should have been
ascribed to beer.[21] When a drunken carter was crushed beneath the
wheel of his cart, the cart, the cask of wine which was in it, and the
oxen that were drawing it, were all deodand.[22] According to the
customary law of the Ossetes, if a stolen gun went off in the hands of
the thief who was carrying it away, and killed him, the thief's kin
had a just feud against the owner of the gun.[23]
[Footnote 15: Wilda, _Strafrecht der Germanen_, p. 578. Geyer, _op.
cit._ p. 88. Brunner, _Forschungen zur Geschichte des deutschen und
französischen Rechtes_, p. 499.]
[Footnote 16: _Laws of [Hv]ammurabi_, 218.]
[Footnote 17: _Numbers_, xxxv. 16 _sqq._ _Deuteronomy_, xix. 4 _sqq._]
[Footnote 18: _Exodus_, xxi. 28-32, 35 _sq._ _Cf._ _Laws of
[Hv]ammurabi_, 250 _sqq._]
[Footnote 19: Rabbinowicz, _Législation criminelle du Talmud_,
p. 173 _sqq._]
[Footnote 20: _Ibid._ p. 174. Benny, _Criminal Code of the Jews
according to the Talmud Massecheth Synhedrin_, p. 115 _sq._]
[Footnote 21: Pollock and Maitland, _op. cit._ ii. 474, n. 4.]
[Footnote 22: _Three Early Assize Rolls for the County of
Northumberland_, p. 96 _sq._]
[Footnote 23: Kovalewsky, _Coutume contemporaine_, p. 295.]
Modern laws generally hold a person liable for harm caused by him
through want of ordinary care and foresight, and it depends on the
nature of the case whether he will have to pay damages or to suffer
punishment. Yet, as we have previously noticed, his punishment is
determined not only by the degree of carelessness of which he was
guilty or the danger to which he exposed his fellow-men, but, largely,
by the harm resulting; whereas, if nobody happens to be hurt, little
notice is taken of his fault. To such an extent are men's judgments in
these matters influenced by external facts, that even nowadays many
among ourselves will hold a person answerable for all the damage which
directly ensues from an act of his, even though no foresight could
have reasonably been expected {309} to look out for it.[24] Not long
ago there were plausible, if insufficient, grounds adduced for
asserting that in English courts a plea that there was neither
negligence nor an intent to do harm was no answer to an action which
charged the defendant with having hurt the plaintiff's body.[25] And
of late years attacks have been made by continental jurists upon the
Roman principle that there is no liability where there is no
fault[26]--a principle which, more or less modified, has been adopted
by modern laws.[27] Although they take pains to point out the
difference between punishment and indemnification, the very language
they use indicates the quasi-ethical basis on which their theory
rests. It is only just, they say, that he who has caused the evil
should compensate for it, since the injured party "is still much more
innocent than he." And the "sense of justice" is appealed to for
compelling a man who faints in the street and in the fall happens to
break some fragile articles to indemnify the owner for his loss.[28]
Thus, whilst loss from accident is generally allowed to lie where it
falls, an exception is made where the instrument of misfortune is a
human being. This is a most unreasonable exception, but one not
difficult to explain. People are ready to blame a person who commits a
harmful deed, whether he deserves blame or not; at the same time they
are apt to overlook the indirect and more remote cause of the harm
which lies in the sufferer's own conduct. Hence the liability, if not
the guilt, is laid on him who is a cause of pain by _doing_ something,
even though it be by merely spasmodic contractions of his muscles;
whereas the other party, who only exposed himself to the risk of being
hurt, is regarded as the "more innocent."
[Footnote 24: Holmes, _Common Law_, p. 80.]
[Footnote 25: Stanley _v._ Powell, in _Law Reports, Queen's Bench
Division_, 1891, i. 86 _sqq._ Pollock and Maitland, _op. cit._
ii. 475 _sq._]
[Footnote 26: von Jhering, _Schuldmoment im römischen Privatrecht_,
_passim_, especially pp. 20 _sqq._, 40 _sqq._ Hepp, _op. cit._ p. 106.]
[Footnote 27: Forsman, _Bidrag till läran om skadestånd i brottmål_,
p. 158 _sq._ Pollock, _Law of Torts_, p. 129 _sqq._]
[Footnote 28: Thon, _Rechtsnorm und subjectives Recht_, p. 106, n. 71.]
Whilst culpability or quasi-culpability is thus imputed to the
innocent committer of a harmful deed, little or no {310} censure is
passed on him whose want of foresight or want of self-restraint is
productive of suffering, if only the effect is sufficiently remote.
This is exemplified by the frivolous leniency with which drunkenness,
not long ago, was looked upon in many civilised countries, and by the
criminal indifference with which law and public opinion still regard
the production of offspring that are almost with certainty doomed to
misery on account of the vices, poverty, or bodily infirmities of the
parents. To interfere here, it is argued, would be to intrude upon the
individual's right of freedom, or to meddle with the affairs of
Providence. But men are not, generally, allowed to do mischief simply
in order to gratify their own appetites, and Providence might equally
well be called in to answer for any other kind of human shortcoming. I
presume the true explanation to be, that in this, as in many other
kindred cases, the cause and effect are so distant from each other
that the near-sighted eye does not distinctly perceive the connection
between them. Indeed, there is hardly any other point in which the
moral consciousness of civilised men still stands in greater need of
intellectual training than in its judgments on cases which display
want of care or foresight. And there is no safer measure of the moral
enlightenment of a man than the scrupulosity with which he considers
the possible consequences of acts, and the number of positive
commandments which are contained in his catalogue of duties.
* * * * *
That moral indignation and moral approval are from the very beginning
felt, not with reference to certain modes of conduct _per se_, but
with reference to persons on account of their conduct, is obvious from
the intrinsic nature of those emotions. As we noticed before, they
derive one of their most essential characteristics from their being
directed against sensitive agents. Hence they may as naturally give
rise to judgments on human character as to judgments on human conduct.
And even when a moral judgment immediately refers to a distinct act,
it takes notice of the {311} agent's will as a whole. The forgiveness
which follows sincere repentance, and the distinction made between
injuries committed deliberately in cold blood and injuries committed
in the heat of passion, indicate that men, in their moral judgments,
are apt to consider something more than a momentary volition. The same
tendency is at the bottom of the common practice of punishing a second
and third offence more severely than the first.
Among the Masai, "if a man is convicted of a particular crime
several times, or constitutes himself a public nuisance, he is
proclaimed an outlaw, his property is confiscated, and he is beaten
away from any settlement or village he goes near. Unless an outlaw can
find friends among non-Masai tribes, he dies of starvation."[29] Among
the Wakamba "a murder is judged by the elders; if it is a man's first
offence of that kind he is punished by a fine. . . . But a man
convicted for the second time of murder is killed at once, everyone
setting on him the moment judgment is delivered. . . . For rape a
first offender is flogged, and has to pay a fine of one cow; for the
second offence he is killed."[30] Among the Wyandots of North America,
"a woman guilty of adultery, for the first offence is punished by
having her hair cropped; for repeated offences her left ear is cut
off."[31] The laws of the Incas, also, were more lenient to a first
offence than to a second;[32] and in the kingdom of Mechoacan, whilst
the first theft was not severely punished, the thief who repeated his
crime was thrown down a precipice and his carcass was left to the
birds of prey.[33] Among the Aleuts, for the first theft "corporal
punishment was inflicted; for the second offence of the kind some
fingers of the right hand were cut off; for the third, the left hand
and sometimes the lips were amputated; and for the fourth offence the
punishment was death." Other crimes, again, "were punished at first by
reprimand by the chief before the community, and upon repetition the
offender was bound and kept in such a condition for some time."[34]
The Kamchadales "burn the hands of people who have been frequently
caught in theft, but for the first offence the thief must restore what
he hath stolen, and live alone {312} in solitude, without expecting
any assistance from others."[35] Among the Ainu, "for breaking into
the storehouse or dwelling of another, a very sound beating was
administered for the first offence; for the second, sometimes the nose
was cut off, sometimes the ears, and in some cases both the nose and
ears were forfeited. . . . Persons who had committed such a crime
twice were driven bag and baggage out of the home and village to which
they belonged."[36] Among the Murray Islanders repetition of an
offence such as murder or robbery generally incurred a penalty of
death, whereas the first offence was punished only by a fine.[37]
According to the Javanese Níti Sástra, if a man violates the law, he
may for the first transgression be punished by a pecuniary fine, for
the second by a punishment affecting his person, but for the third he
may be punished with death.[38] The Penal Code of the Chinese
prescribes that, for the first offence, individuals convicted of being
concerned in a theft shall be branded in the lower part of the left
arm with two words signifying thief, that for the second offence they
shall be branded again with the same words in the lower part of the
right arm, but that for the third offence they shall suffer death by
being strangled, after remaining the usual period in confinement.[39]
In Nepal, in the case of theft or petty burglary, for the first
offence one hand is cut off, for the second the other hand, whilst the
third offence is capital.[40] Herodotus mentions with approval that in
ancient Persia not even the king was allowed to put any one to death
for a single crime.[41] According to the Vendîdâd, the gravity of a
crime does not depend only on the gravity of the deed, but on its
frequency as well.[42] In ancient Rome the repetition of a crime
aggravated its punishment.[43] According to early English law, the
punishment upon a second conviction for nearly every offence was death
or mutilation.[44] In modern European legislation, the principle that
the criminality of certain crimes is increased by their repetition is
generally recognised.
[Footnote 29: Hinde, _The Last of the Masai_, p. 108.]
[Footnote 30: Decle, _op. cit._ p. 487.]
[Footnote 31: Powell, 'Wyandot Government,' in _Ann. Rep. Bur. Ethn._
i. 66.]
[Footnote 32: Herrera, _General History of the West Indies_,
iv. 338 _sqq._]
[Footnote 33: _Ibid._ iii. 255.]
[Footnote 34: Veniaminof, quoted by Petroff, 'Report on Alaska,' in
_Tenth Census of the United States_, p. 152.]
[Footnote 35: Krasheninnikoff, _History of Kamschatka_, p. 179.]
[Footnote 36: Batchelor, _Ainu and their Folk-lore_, p. 285.]
[Footnote 37: Hunt, in _Jour. Anthr. Inst._ xxviii. 6.]
[Footnote 38: Raffles, _History of Java_, i. 262.]
[Footnote 39: _Ta Tsing Leu Lee_, sec. cclxix. p. 285.]
[Footnote 40: Hodgson, _Miscellaneous Essays_, ii. 235.]
[Footnote 41: Herodotus, i. 137.]
[Footnote 42: _Vendîdâd_, iv. 17 _sqq._]
[Footnote 43: Mommsen, _Römisches Strafrecht_, p. 1044.]
[Footnote 44: Stephen, _op. cit._ i. 58.]
The more a moral judgment is influenced by reflection, the more it
scrutinises the character which manifests itself {313} in that
individual piece of conduct by which the judgment is occasioned. But
however superficial it be, it always refers to a will conceived of as
a continuous entity, to a person regarded as a cause of pleasure or
pain. This holds good of savage and civilised men alike. Even tame
animals, in response to a hurt or a benefit, behave differently
towards different persons according to their previous experience of
the agent.