Part 8

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.]

CHAPTER X

AGENTS UNDER INTELLECTUAL DISABILITY

WE hold an agent responsible not only for his intention, but for any known concomitant of his act, as also for any such unknown concomitant of it as we attribute to want of due attention. But for anything which he could not be aware of he is not responsible. Hence certain classes of agents--animals, children, idiots, madmen--are totally or partially exempted from moral blame and legal punishment.

Though animals are undoubtedly capable of acting, we do not regard them as proper objects of moral indignation. The reason for this is not merely the very limited scope of their volitions and their inability to foresee consequences of their acts, since these considerations could only restrict their responsibility within correspondingly narrow limits. Their total irresponsibility rests on the presumption that they are incapable of recognising any act of theirs as right or wrong. If the concomitant of an act is imputable to the agent only in so far as he could know it, it is obvious that no act is wrong which the agent could not know to be wrong.

It is a familiar fact that, by discipline, we may teach domesticated animals to live up to a certain standard of behaviour, but this by no means implies that we awake in them moral feelings. When some writers credit dogs and apes with a conscience,[1] we must remember that an {250} observer's inference is not the same as an observed fact.[2] It seems that the so-called conscience in animals is nothing more than an association in the animal's mind between the performance of a given act and the occurrence of certain consequences, together with a fear of those consequences.[3]

[Footnote 1: Romanes, _Mental Evolution in Animals_, p. 352. Perty, _Seelenleben der Thiere_, p. 67. Brehm, _From North Pole to Equator_, p. 298.]

[Footnote 2: _Cf._ Lloyd Morgan, _Animal Life and Intelligence_, p. 399.]

[Footnote 3: _Cf._ _ibid._ p. 405.]

The following is one of the most striking instances of what Professor Romanes regards as "conscience" in animals; it refers to a terrier which had never, even in its puppyhood, been known to steal, but on the contrary used to make an excellent guard to protect property from other animals, servants, and so forth, even though these were his best friends. "Nevertheless," says Professor Romanes, "on one occasion he was very hungry, and in the room where I was reading and he was sitting, there was, within easy reach, a savoury mutton chop. I was greatly surprised to see him stealthily remove this chop and take it under a sofa. However, I pretended not to observe what had occurred, and waited to see what would happen next. For fully a quarter of an hour this terrier remained under the sofa without making a sound, but doubtless enduring an agony of contending feelings. Eventually, however, conscience came off victorious, for emerging from his place of concealment and carrying in his mouth the stolen chop, he came across the room and laid the tempting morsel at my feet. The moment he dropped the stolen property he bolted again under the sofa, and from this retreat no coaxing could charm him for several hours afterwards. Moreover, when during that time he was spoken to or patted, he always turned away his head in a ludicrously conscience-stricken manner. Altogether I do not think it would be possible to imagine a more satisfactory exhibition of conscience by an animal than this; for . . . the particular animal in question was never beaten in its life." The author then adds in a note that "mere dread of punishment cannot even be suspected to have been the motive principle of action."[4] It may be so, if by punishment be understood the infliction of physical pain. But it can hardly be doubted that the terrier suspected his master to be displeased with his behaviour, and the dread of displeasure or reproof may certainly have been the sole reason for his bringing back the stolen food. Among {251} "high-life" dogs, as Professor Romanes himself observes, "wounded sensibilities and loss of esteem are capable of producing much keener suffering than is mere physical pain."[5] But fear of the anticipated consequences of an act, even when mixed with shame, is not the same as the moral feeling of remorse. There is no indication that the terrier felt that his act was wrong, in the strict sense of the word.