Chapter 10
Part 10
Thus, in the eye of the law, compulsion is oftentimes a ground of extenuation. Strictly speaking, a volition can never be compelled into existence;[2] to act under compulsion really means to act under the influence of some non-voluntary motive, so powerful that every ordinary human will would yield to it. As Aristotle puts it, pardon is given when "a man has done what he ought not to have done through fear of things beyond the power of human nature to endure, and such that no man could undergo them. And yet, perhaps, there are some things which a man must never allow himself to be compelled to do, but must rather choose death by the most exquisite torments."[3] This principle has been in some degree recognised by legislation. In many cases of felony, if a married woman commits the crime in the presence of her husband, the law of England presumes that she acts under his coercion, and therefore excuses her from punishment, unless the presumption of law is rebutted by evidence;[4] but children and servants are not acquitted if committing crimes by the command of a parent or a master.[5] Besides the presumption made in favour of married women, compulsion by threats of injury to person or property is recognised as an excuse for crime only, as it seems, in cases in which the compulsion is applied by a body of rebels or rioters, and in which the offender takes a subordinate part in the offence.[6] In a time of peace, on the other hand, though a man be violently assaulted, and have no other possible {285} means of escaping death but by killing an innocent person, if he commit the act he will be guilty of murder; "for he ought rather to die himself, than kill an innocent."[7] It has even been laid down as a general principle that "the apprehension of personal danger does not furnish any excuse for assisting in doing any act which is illegal."[8] But the English law relating to _duress per minas_, and to constraint in general, seems to be harsher both than most modern continental laws[9] and than Roman law.[10] Some of the Italian practitioners were even of opinion that a person who committed homicide by the command of his prince or some other powerful man was exempt from all punishment.[11] According to the Talmud, any offence perpetrated under compulsion or in mortal fear is excusable in the eye of the law, excepting only murder and adultery.[12]
[Footnote 2: Bradley, _Ethical Studies_, p. 40, n. 1.]
[Footnote 3: Aristotle, _Ethica Nicomachea_, iii. i. 7 _sq._]
[Footnote 4: Hale, _History of the Pleas of the Crown_, i. 44 _sqq._ 434. Harris, _Principles of the Criminal Law_, p. 25. Stephen, _History of the Criminal Law of England_, ii. 105 _sq._]
[Footnote 5: Hale, _op. cit._ i. 44. Harris, _op. cit._ p. 26.]
[Footnote 6: Stephen, _op. cit._ ii. 106.]
[Footnote 7: Hale, _op. cit._ i. 51. Harris, _op. cit._ p. 24 _sq._]
[Footnote 8: Denman, C. J., in Reg. _v._ Tyler, reported in Carrington and Payne, _Reports of Cases argued and ruled at Nisi Prius_, viii. 621.]
[Footnote 9: _Code Pénal_, art. 64; Chauveau and Hélie, _Théorie du Code Pénal_, i. 534 _sqq._ Italian _Codice Penale_, art. 49. Spanish _Código Penal reformado_, art. 8, § 9 _sqq._ Finger, _Compendium des österreichischen Rechtes--Das Strafrecht_, i. 119. Foinitzki, in _Législation pénale comparée_, edited by von Liszt, p. 530 (Russian law). _Ottoman Penal Code_, art. 42.]
[Footnote 10: Mommsen, _Römisches Strafrecht_, p. 653. Janka, _Der strafrechtliche Notstand_, p. 48.]
[Footnote 11: Janka, _op. cit._ p. 60. A different view, however, is expressed by Covarruvias (_De matrimoniis_, ii. 3. 4. 6 _sq._ [_Opera omnia_, i. 139]):--"Metus numquam excusat nec a mortali, nec a veniali crimine. Peccatum maximum malum, nec eo quid grauius."]
[Footnote 12: Benny, _Criminal Code of the Jews according to the Talmud Massecheth Synhedrin_, p. 125.]
Suppose, again, that the motive of breaking the law is what has been called "compulsion by necessity." The old instance of shipwrecked persons in a boat unable to carry them all is a standing illustration of this principle. Sir James Stephen says, that "should such a case arise, it is impossible to suppose that the survivors would be subjected to legal punishment."[13] Yet, in a very similar case, occurring in the year 1884, they were. Three men and a boy escaped in an open boat from the shipwreck of the yacht _Mignonette_. After passing eight days without food, and seeing no prospect of relief, the men killed the boy, who was {286} on the verge of death, in order to feed on his body. Four days later they were rescued by a passing ship; and, on their arrival in England, two of the men were tried for the murder of the boy. The defence raised was that the act was necessary for the purpose of self-preservation. But it was held by the Court for Crown Cases Reserved, that such necessity was no justification of the act of causing death when there was a distinct intention to take away the life of another innocent person. However, the sentence of death was afterwards commuted by the Crown to six months' imprisonment.[14] In the same case it was even said that if the boy had had food in his possession, and the others had taken it from him, they would have been guilty of theft.[15] Bacon's proposition that "if a man steal viands to satisfy his present hunger, this is no felony nor larceny,"[16] is not law at the present day.[17] It was expressly contradicted by Hale, who lays down the following rule:--"If a person, being under necessity for want of victuals, or clothes, shall upon that account clandestinely, and _animo furandi_ steal another man's goods, it is felony and a crime by the laws of England punishable with death; altho the judge, before whom the trial is, in this case (as in other cases of extremity) be by the laws of England intrusted with a power to reprieve the offender before or after judgment, in order to the obtaining the king's mercy."[18] Britton excuses "infants under age, and poor people, who through hunger enter the house of another for victuals under the value of twelve pence."[19] According to the Swedish Westgöta-Lag, a poor man who can find no other means of relieving himself and his family from hunger may thrice with impunity appropriate food belonging to somebody else, but if he does so a fourth time he is punished for theft.[20] The Canonist says, "Necessitas legem non {287} habet"[21]--"Raptorem vel furem non facit necessitas, sed voluntas."[22] This principle has the sanction of the Gospel. Jesus said to the Pharisees, "Have ye not read what David did, when he was an hungered, and they that were with him; How he entered into the house of God, and did eat the shewbread, which was not lawful for him to eat, neither for them which were with him, but only for the priests?"[23]
[Footnote 13: Stephen, _op. cit._ ii. 108. So, also, according to Bacon's _Maxims of the Law_, reg. 5 (_Works_, vii. 344), homicide is in such a case justifiable.]
[Footnote 14: Reg. _v._ Dudley and Stephens, in _Law Reports, Cases determined in the Queen's Bench Division_, xiv. 273 _sqq._]
[Footnote 15: _Ibid._ xiv. 276.]
[Footnote 16: Bacon, _Maxims of the Law_, reg. 5 (_Works_, vii. 343).]
[Footnote 17: Reg. _v._ Dudley and Stephens, in _Law Reports, Queen's Bench Division_, xiv. 286.]
[Footnote 18: Hale, _op. cit._ i. 54.]
[Footnote 19: Britton, i. 11, vol. i. 42.]
[Footnote 20: _Westgöta-Lagen II._ þiufua bolker, 14, p. 164 _sq._]
[Footnote 21: Gratian, _Decretum_, iii. 1. 11.]
[Footnote 22: _Ibid._ iii. 5. 26.]
[Footnote 23: _St. Matthew_, xii. 1 _sqq._]
According to Muhammedan law, the hand is not to be cut off for stealing any article of food that is quickly perishable, because it may have been taken to supply the immediate demands of hunger.[24] We are told that "no Chinese magistrate would be found to pass sentence upon a man who stole food under stress of hunger."[25] In ancient Peru, according to Herrera, "he that robb'd without need was banish'd to the Mountains Andes, never to return without the Inga's leave, and if worth it paid the value of what he had taken. He that for want stole eatables only was reprov'd, and receiv'd no other punishment, but enjoyn'd to work, and threatened, that if he did so again, he should be chastiz'd by carrying a stone on his back, which was very disgraceful."[26] We even hear of savages who regard "compulsion by necessity" as a ground of extenuation. Among the West African Fjort robbery of plantations, committed in a state of great hunger, is exempt from punishment in case there is no deception or secrecy in the matter; however, payment for damage done is expected.[27] Cook says of the Tahitians:--"Those who steal clothes or arms, are commonly put to death, either by hanging or drowning in the sea; but those who steal provisions are bastinadoed. By this practice they wisely vary the punishment of the same crime, when committed from different motives."[28]
[Footnote 24: Lane, _Manners and Customs of the Modern Egyptians_, p. 121.]
[Footnote 25: Giles, _Strange Stories from a Chinese Studio_, ii. 217, n. 5.]
[Footnote 26: Herrera, _General History of the West Indies_, iv. 337.]
[Footnote 27: Dennett, in _Jour. African Society_, i. 276.]
[Footnote 28: Cook, _Journal of a Voyage round the World_, p. 41 _sq._]
{288} A special kind of self-preservation is self-defence. Here the ground of justification is not merely the motive of the agent, but also the wrongness or criminality of the act which he tries to prevent. Hence the right of inflicting injuries as a necessary means of self-preservation has been more generally recognised in the case of self-defence than in other cases of "compulsion by necessity." "Vim vi repellere" was regarded by the ancients as a natural right,[29] as a law "non scripta, sed nata";[30] and the same view was taken by the Canonist.[31] Even in the savage world self-defence and killing in self-defence are not infrequently justified by custom.[32] But in other instances the influence of the external event makes itself felt also in the case of self-defence. Among the Fjort, though a person who kills another in self-defence is exempt from punishment, he is expected to pay damages.[33] Among the Hottentots self-defence is regarded as a mitigating circumstance, but not as an excuse in the full sense of the word.[34] Among other peoples it is not considered at all.[35] Among the ancient Teutons a person who committed homicide in self-defence had to pay _wer_;[36] and in Germany such a person seems to have been subject to punishment still in the later Middle Ages.[37] In England, in the thirteenth century, he was considered to deserve royal pardon, but he also needed it.[38]
[Footnote 29: _Digesta_, xliii. 16. i. 27: "Vim vi repellere licere Cassius scribit idque ius natura comparatur."]
[Footnote 30: Cicero, _Pro Milone_, 4 (10).]
[Footnote 31: Gratian, _Decretum_, i. 1. 7.]
[Footnote 32: Merker, quoted by Kohler, in _Zeitschr. f. vergl. Rechtswiss._ xv. 64 (Wadshagga). Lang, in Steinmetz, _Rechtsverhältnisse_, p. 257 (Washambala).]
[Footnote 33: Dennett, in _Jour. African Society_, i. 276.]
[Footnote 34: Kohler, in _Zeitschr. f. vergl. Rechtswiss._ xv. 353.]
[Footnote 35: Steinmetz, _Rechtsverhältnisse_, p. 50 (Banaka and Bapuku). Tellier, _ibid._ p. 176 (Kreis Kita). Marx, _ibid._ p. 357 (Amahlubi). Senfft, _ibid._ p. 450 (Marshall Islanders).]
[Footnote 36: Geyer, _Lehre von der Nothwehr_, p. 88 _sqq._ Trummer, _Vorträge über Tortur, &c._ i. 430. Stemann, _Den danske Retshistorie indtil Christian V.'s Lov_, p. 659. _Cf._ _Leges Henrici I._ lxxx. 7; lxxxvii. 6.]
[Footnote 37: Trummer, _op. cit._ i. 428 _sqq._ von Feuerbach-Mittermaier, _Lehrbuch des Peinlichen Rechts_, p. 64. Brunner observes (_Deutsche Rechtsgeschichte_, ii. 630), "Nicht das Benehmen des Getöteten war die causa des Todschlags, sondern nur die feindselige Absicht des Todschlagers."]
[Footnote 38: Bracton, _De Legibus et Consuetudinibus Angliæ_, fol. 132 b, vol. ii. 366 _sqq._ Pollock and Maitland, _History of English Law before the Time of Edward I._ ii. 574.]
{289} In self-defence there should of course be a proportion between the injury which the aggressor intended to inflict and the injury inflicted on him by the person attacked. The most widely-recognised ground on which life is allowed to be taken in self-defence is danger of death. But it is not the exclusive ground. Among the Wakamba "a thief entering a village at night can be killed"; though, if he is, the incident generally gives rise to a blood-feud between his family and the family of the slayer.[39] In Uganda "there is no penalty for killing a thief who enters an enclosure at night";[40] and among various peoples at higher stages of culture we likewise find the provision that a nocturnal thief or house-breaker may be killed with impunity, though a diurnal thief may not.[41] This law, however, seems to have been due not so much to the fact that by night the proprietor had less chance of recovering his property, as to the greater danger to which he was personally exposed.[42] The Roman Law of the Twelve Tables allows the diurnal thief also to be killed, in case he defends himself with a weapon;[43] and, as regards the nocturnal thief, Ulpian expressly says that the owner of the property is justified in killing him only if he cannot spare the life of the thief without peril to himself.[44] The same rule was laid down by Bracton[45] and by Grotius. The latter observes, "No one ought to be slain directly for the sake of mere things, which would be done if I were to kill an unarmed flying thief with a missile, and so recover my goods: but if I am myself in danger of life, then I may repel the danger even with danger to the life of another; nor does this cease to hold, however I have come into that danger, whether by trying to retain my property, or to {290} recover it, or to capture the thief; for in all these cases I am acting lawfully according to my right."[46]
[Footnote 39: Decle, _Three Years in Savage Africa_, p. 488.]
[Footnote 40: Ashe, _Two Kings of Uganda_, p. 294.]
[Footnote 41: _Ta Tsing Leu Lee_, sec. cclxxvii. p. 297 (Chinese). _Exodus_, xxii. 2 _sq._ _Lex Duodecim Tabularum_, viii. 11 _sq._ Plato, _Leges_, ix. 874. _Lex Baiuwariorum_, ix. (viii.) 5. Du Boys, _Histoire du droit criminel de l'Espagne_, p. 288 (Spanish Partidas).]
[Footnote 42: _Cf._ Gregory IX. _Decretales_, v. 12. 3; _Mishna_, fol. 72, quoted by Rabbinowicz, _Législation criminelle du Talmud_, p. 122.]
[Footnote 43: _Lex Duodecim Tabularum_, viii. 12. Cicero, _Pro Milone_, 3 (9).]
[Footnote 44: _Digesta_, xlviii. 8. 9.]
[Footnote 45: Bracton, _op. cit._ fol. 144 b, vol. ii. 464 _sq._]
[Footnote 46: Grotius, _De jure belli et pacis_, ii. 1. 12. 1.]
According to the law of England, a woman is justified in killing one who attempts to ravish her; and so also the husband or father may kill a man who attempts a rape on his wife or daughter, if she do not consent.[47] We meet with similar provisions in many other laws, modern and ancient.[48] St. Augustine says that the law allows the killing of a ravisher of chastity, either before or after the act, in the same manner as it permits a person to kill a highwayman who makes an attempt upon his life.[49] According to the Talmud, it is permissible to kill a would-be criminal, in order to prevent the commission of either murder or adultery "to save an innocent man's life, or a woman's honour"; but when the crime has already been accomplished, the criminal cannot be thus disposed of.[50]
[Footnote 47: Harris, _op. cit._ p. 145.]
[Footnote 48: Erskine-Rankine, _Principles of the Law of Scotland_, p. 558. _Ottoman Penal Code_, art. 186. Nordström, _Bidrag till den svenska samhälls-författningens historia_, ii. 349 (ancient Swedish laws). Plato, _Leges_, ix. 874.]
[Footnote 49: St. Augustine, _De libero arbitrio_, i. 5 (Migne, _Patrologiæ cursus_, xxxii. 1227).]
[Footnote 50: Benny, _op. cit._ p. 125. Rabbinowicz, _op. cit._ p. 124.]
Among many peoples who in other cases prohibit self-redress, an adulterer and an adulteress may be put to death by the aggrieved husband, especially if they be caught _flagrante delicto_. Such a custom prevails in various uncivilised societies where justice is generally administered by a council of elders or the chief.[51] Among the ancient {291} Peruvians "a man killing his wife for adultery was free; but if for any other fault he died for it, unless he were a man in dignity, and then some other penalty was inflicted."[52] According to Chinese penal law, "when a principal or inferior wife is discovered by her husband in the act of adultery, if such husband at the very time that he discovers kills the adulterer, or adulteress, or both, he shall not be punishable."[53] By the law of Nepal, the Parbattia husband retains the privilege of avenging, with his own hand, the violation of his marriage bed, and anyone, save a learned Brahman or a helpless boy, who instead of using his own sword, should appeal to the courts, would be covered with eternal disgrace.[54] In all purely Moslem nations custom "overwhelms with ignominy the husband or son of an adulteress who survives the discovery of her sin; he is taboo'd by society; he becomes a laughing-stock to the vulgar, and a disgrace to his family and friends."[55] According to the 'Lex Julia de adulteriis,' a Roman father had a right to kill both his married daughter and her accomplice if she was taken in adultery either in his house or in her husband's, provided that both of them were killed, and that it was done at once. The husband, on the other hand, had no such right as to his wife in any case, and no such right as to her accomplice unless he was an infamous person or a slave, taken, not in his father-in-law's house, but in his own.[56] However, it seems that in more ancient times the husband was entitled to kill an adulterous wife;[57] and his right of self-redress in the case of adultery was again somewhat extended by Justinian beyond the very narrow limits set down by the Lex Julia.[58] According to an Athenian law, "if one man shall kill another . . . after catching him with his wife, or with his mother, or with a {292} sister, or with a daughter, or with a concubine whom he keeps to beget free-born children, he shall not go into exile for homicide on such account."[59] Ancient Teutonic law allowed a husband to kill both his unfaithful wife and the adulterer, if he caught them in the act;[60] according to the Laws of Alfred, an adulterer taken _flagrante delicto_ by the woman's lawful husband, father, brother, or son, might be killed without risk of blood-feud.[61] In the thirteenth century, however, there are already signs that, in England, the outraged husband who found his wife in the act of adultery might no longer slay the guilty pair or either of them, although he might emasculate the adulterer.[62] The present law treats the killing of an adulterer taken in the act in the same way as homicide committed in a quarrel; by slaying him, the husband is guilty of manslaughter only, though, if the killing were deliberate and took place in revenge after the fact, the crime would be murder. This seems to be the only case in English law in which provocation, other than by actual blows, is considered sufficient to reduce homicide to manslaughter, if the killing be effected by a deadly weapon.[63] There are corresponding provisions in other modern laws.[64] As a rule, flagrant adultery does not justify homicide, but serves as an extenuating circumstance.[65] But according to the French Code Pénal, "dans le cas d'adultère . . . le meurtre commis par l'époux sur son épouse, ainsi que sur le complice, à l'instant où il les surprend en flagrant délit dans la maison conjugale, est excusable."[66] And in Russia, though the law does not exempt from punishment a {293} husband who thus avenges himself, the jury show great indulgence to him.[67]
[Footnote 51: Dalton, _Descriptive Ethnology of Bengal_, p. 45; Stewart, in _Jour. As. Soc. Bengal_, xxiv. 628 (Kukis). Macpherson, _Memorials of Service in India_, p. 83; Hunter, _Annals of Rural Bengal_, iii. 76 (Kandhs). Anderson, _Mandalay to Momien_, p. 140 (Kakhyens). MacMahon, _Far Cathay and Farther India_, p. 273 (Indo-Burmese border tribes). Crawfurd, _History of the Indian Archipelago_, iii. 130. von Brenner, _Besuch bei den Kannibalen Sumatras_, pp. 211, 213. Modigliani, _Viaggio a Nías_, p. 495. Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._ iii. 364. Dyveyrier, _Exploration du Sahara_, p. 429 (Touareg). Barrow, _Travels into the Interior of Southern Africa_, i. 207 (Kafirs). Among the Gaika tribe of the Kafirs, however, "a man is fined for murder, if he kills an adulterer or adulteress in the act, although he be the husband of the adulteress" (Maclean, _Compendium of Kafir Laws and Customs_, p. 111). Among the Wakamba, "if a man is caught in adultery at night, the husband has a right to kill him; but if the injured man thus takes the law into his own hands in the daytime, he is dealt with as a murderer" (Decle, _op. cit._ p. 487).]
[Footnote 52: Herrera, _op. cit._ iv. 338.]
[Footnote 53: _Ta Tsing Leu Lee_, sec. cclxxxv. p. 307.]
[Footnote 54: Hodgson, _Miscellaneous Essays_, ii. 235, 236, 272.]
[Footnote 55: Burton, _Sind Revisited_, ii. 54 _sq._]
[Footnote 56: _Digesta_, xlviii. 5. 21 _sq._]
[Footnote 57: Gellius, _Noctes Atticæ_, x. 23. 5. _Cf._ Mommsen, _Römisches Strafrecht_, p. 625.]
[Footnote 58: _Novellæ_, cxvii. 15.]
[Footnote 59: Demosthenes, _Contra Aristocratem_, 53, p. 637.]
[Footnote 60: Wilda, _Strafrecht der Germanen_, p. 823. Nordström, _op. cit._ ii. 62 _sq._ Stemann, _op. cit._ p. 325.]
[Footnote 61: _Laws of Alfred_, ii. 42.]
[Footnote 62: Pollock and Maitland, _op. cit._ ii. 484. The same right is granted by a Spanish mediæval law to a father, or a husband, who finds a man having illegitimate sexual intercourse with his daughter, or wife (Du Boys, _Histoire du droit criminel de l'Espagne_, p. 93).]
[Footnote 63: Hale, _op. cit._ i. 486. Harris, _op. cit._ p. 145. Cherry, _Lectures on the Growth of Criminal Law_, p. 82 _sq._]
[Footnote 64: Italian _Codice Penale_, art. 377. Spanish _Código Penal reformado_, art. 438. _Ottoman Penal Code_, art. 188.]
[Footnote 65: Günther, _Idee der Wiedervergeltung_, iii. 233 _sqq._]
[Footnote 66: _Code Pénal_, art. 324.]
[Footnote 67: Foinitzki, _loc. cit._ p. 548.]
Whilst the law referring to self-defence has gradually become more liberal, the law referring to self-redress in the case of adultery has thus, generally speaking, become more severe. The reason for this is obvious. A husband who slays his unfaithful wife or her accomplice does not defend, but avenges himself; and it is to be expected that a society in which punishment has only just succeeded revenge should still admit, or tolerate, revenge in extreme cases. The privilege granted to the outraged husband is not the sole survival of the old system of self-redress lingering on under the new conditions. According to Kafir custom or law, the relatives of a murdered man become liable only to a very light fine if they kill the murderer.[68] The ancient Teutons, at a time when their laws already prohibited private revenge, did not look upon an avenger of blood in the same light as an ordinary manslayer;[69] and even the Church recognised the distinction.[70] Some of the ancient Swedish laws entirely excused homicide committed in revenge immediately after the crime.[71] According to the Östgöta-Lag, an incendiary taken in flagrancy might be at once burnt in the fire,[72] and ancient Norwegian law permitted the slaying of a thief caught in the act.[73] In the Laws of Ine there is an indication that a thief's fate was at the discretion of his captor,[74] and a law of Æthelstan implies that the natural and proper course as to thieves was to kill them.[75] In the Laws of King Wihtræd it is said, "If any one slay a layman while thieving; let him lie without 'wergeld.'"[76] So also, according to Javanese law, if a thief be caught in the act it is lawful to put him to death.[77] For our present {294} purpose it is important to note that all such cases imply a recognition of the principle that an act committed on extreme provocation requires special consideration. To declare that an adulterer or adulteress caught in flagrancy, or a manifest thief, may be slain with impunity, is a concession to human passions, which are naturally more easily aroused by the sight of an act than by the mere knowledge of its commission. It was for a similar reason that the Law of the Twelve Tables punished _furtum manifestum_ much more heavily than _furtum nec manifestum_;[78] and that the Laws of Alfred imposed death as the penalty for fighting in the King's hall if the offender was taken in the act, whereas he was allowed to pay for himself if he escaped and was subsequently apprehended.[79]
[Footnote 68: Maclean, _op. cit._ p. 143. _Cf._, however, _ibid._ p. 110.]
[Footnote 69: Wilda, _op. cit._ p. 562. Stemann, _op. cit._ p. 582 _sq._]
[Footnote 70: Wilda, _op. cit._ pp. 180, 565. Labbe-Mansi, _Sacrorum Conciliorum collectio_, xii. 289.]
[Footnote 71: Nordström, _op. cit._ ii. 414 _sq._]
[Footnote 72: _Ibid._ ii. 416.]
[Footnote 73: Wilda, _op. cit._ p. 889.]
[Footnote 74: _Laws of Ine_, 12. _Cf._ Stephen, _op. cit._ i. 62.]
[Footnote 75: _Laws of Æthelstan_, iv. 4.]
[Footnote 76: _Laws of Wihtræd_, 25.]
[Footnote 77: Crawfurd, _op. cit._ iii. 115.]
[Footnote 78: _Institutiones_, iv. 1. 5.]
[Footnote 79: _Laws of Alfred_, ii. 7.]
The difference between an injury which a person inflicts deliberately, in cold blood, and one which he inflicts in the heat of the moment, under the disturbance of great excitement caused by a wrong done to himself, has been widely recognised. There are instances reported of savages who distinguish between murder and manslaughter. And the laws of all civilised nations agree in regarding, on certain conditions, passion aroused by provocation as a mitigating circumstance at the commission of a crime.
The Australian Narrinyeri, as we have seen, have a tribunal, called _tendi_, consisting of the elders of the clan, to which all offenders are brought for trial. "In case of the slaying by a person or persons of one clan of the member of another clan in time of peace, the fellow-clansmen of the murdered man will send to the friends of the murderer and invite them to bring him to trial before the united tendies. If, after full inquiry, he is found to have committed the crime, he will be punished according to the degree of guilt. If it were a case of murder, with malice aforethought, he would be handed over to his own clan to be put to death by spearing. If it should be what we call manslaughter, he would receive a good thrashing, or be banished from his clan, or compelled to go to his mother's {295} relations."[80] In the Pelew Islands, if two natives are quarrelling, and the one says to the other, "Your wife is bad," the insulted party is entitled to chastise the provoker with a stone, and is not held liable even if the latter should die in consequence.[81] The Eastern Central Africans "are aware of the difference between murder and homicide," even though the punishment of the two crimes is often the same.[82] Among the Kandhs only slight compensation is awarded "for wounds, however serious, given under circumstances of extreme provocation."[83] "_Valdeyak_, or manslaughter," says Georgi, "is not capital among the Tungusians, when it has been occasioned by some antecedent quarrel. The slayer is however whipped, and obliged to maintain the family of the deceased: he undergoes no reproaches on account of the affair; but on the contrary is considered as a brave and courageous man for it."[84]
[Footnote 80: Taplin, 'Narrinyeri,' in Woods, _Native Tribes of South Australia_, p. 34 _sq._]
[Footnote 81: Kubary, 'Die Palau-Inseln,' in _Journal des Museum Godeffroy_, iv. 43 _sq._]
[Footnote 82: Macdonald, _Africana_, i. 172.]
[Footnote 83: Macpherson, _op. cit._ p. 82.]
[Footnote 84: Georgi, _Russia_, iii. 83. _Cf._ also Turner, 'Ethnology of the Ungava District,' in _Ann. Rep. Bur. Ethn._ xi. 186.]
Among the ancient Peruvians, "when one killed another in a quarrel, the first thing enquired into was, who had been the aggressor; if the dead man, then the punishment was slight, at the will of the Inga; but if the surviver had given the provocation, his penalty was death, or at least perpetual banishment to the Andes, there to work in the Inga's fields of corn, which was like sending him to the galeys. A murderer was immediately publickly put to death, tho' he were a man of quality."[85] Among the Mayas of Yucatan and Nicaragua, in case of great provocation or absence of malice, homicide was atoned by the payment of a fine.[86]
[Footnote 85: Herrera, _op. cit._ iv. 337 _sq._]
[Footnote 86: Bancroft, _Native Races of the Pacific States_, ii. 658.]
From certain passages in the Mosaic law the conclusion has been drawn that the ancient Hebrews did not consider it obligatory to inflict death upon him who had killed his neighbour in a fit of passion.[87] It is said that a man shall be put to death if he "come presumptuously upon his neighbour, to slay him with guile,"[88] or if he "hate his neighbour, and lie in wait for him, and rise up against him, and smite him mortally that he die."[89] On the other hand, he shall be allowed a resort to a city {296} of refuge if "he lie not in wait,"[90] or if he thrust his neighbour "suddenly without enmity."[91]
[Footnote 87: Goitein, _Das Vergeltungsprincip im biblischen und taltmudischen Strafrecht_, p. 33 _sqq._]
[Footnote 88: _Exodus_, xxi. 14.]
[Footnote 89: _Deuteronomy_, xix. 11 _sq._]
[Footnote 90: _Exodus_, xxi. 13.]
[Footnote 91: _Numbers_, xxxv. 22, 25.]
Professor Leist suggests that in ancient Greece, at a time when blood-revenge was a sacred duty in the case of premeditated murder, homicide committed without premeditation could be forgiven by the avenger of blood.[92] Plato, in his 'Laws,' draws a distinction between him "who treasures up his anger and avenges himself, not immediately and at the moment, but with insidious design, and after an interval," and him "who does not treasure up his anger, and takes vengeance on the instant, and without malice prepense." The deed of the latter, though not involuntary, "approaches to the involuntary," and should therefore be punished less severely than the crime perpetrated by him who has stored up his anger.[93] Aristotle, also, whilst denying that "acts done from anger or from desire are involuntary,"[94] maintains that "assaults committed in anger, are rightly decided not to be of malice aforethought, for they do not originate in the volition of the man who has been angered, but rather in that of the man who so angered him."[95] And he adds that "everyone will admit that he who does a disgraceful act, being at the same time free from desire, or at any rate feeling desire but slightly, is more to be blamed than is he who does such an act under the influence of a strong desire; and that he who, when not in a passion, smites his neighbour, is more to be blamed than is he who does so when in a passion."[96] Cicero likewise points out that "in every species of injustice it is a very material question whether it is committed through some agitation of passion, which commonly is short-lived and temporary, or from deliberate, prepense, malice; for those things which proceed from a short, sudden fit, are of slighter moment than those which are inflicted by forethought and preparation."[97]
[Footnote 92: Leist, _Græco-italische Rechtsgeschichte_, pp. 325, 352.]
[Footnote 93: Plato, _Leges_, ix. 867.]
[Footnote 94: Aristotle, _Ethica Nicomachea_, iii. 1. 21.]
[Footnote 95: _Ibid._ v. 8. 9.]
[Footnote 96: _Ibid._ vii. 7. 3.]
[Footnote 97: Cicero, _De officiis_, i. 8.]
Of ancient Russian law M. Kovalewsky observes, "L'existence d'une excitation violente est prise en considération, par notre antique législation, qui déclare le crime accompli sous leur influence non imputable."[98] According to ancient Irish law, "homicide was divisible into the two classes of simple manslaughter and murder, the difference between which lay in the {297} existence or absence of malice aforethought, the fine in the latter being double what it was in the former case"; and for a wound which was inflicted inadvertently in lawful anger, the payment was made upon a diminished scale.[99] The ancient Teutons, also, held a wrong committed in sudden anger and on provocation to be less criminal than one committed with premeditation in cold blood;[100] this opinion seems partly to be at the bottom of the distinction which they made between open and secret homicide.[101] According to the law of the East Frisians, a man who kills another without premeditation may buy off his neck with money, not so he who commits a murder with malice aforethought.[102] It is curious that Bracton should take no notice of the different grades of evil intention which may accompany voluntary homicide, and that he should omit altogether the question of provocation;[103] Beaumanoir, the French jurist, who lived in the same age, mentions in his 'Coutumes du Beauvoisis' provocation as an extenuating circumstance,[104] and the same view was taken by the Church.[105] Coke, in his Third Institute--which may be regarded as the second source of the criminal law of England, Bracton being the first--gives an account of malice aforethought, and adds, "Some manslaughters be voluntary, and not of malice forethought, upon some sudden falling out. _Delinquens per iram provocatus puniri debet mitius_."[106] Hume says that in Scotland "the manslayer on suddenty was to have the benefit of the girth or sanctuary: he might flee to the church or other holy place; from which he might indeed be taken for trial, but to be returned thither, safe in life and limb, if his allegation of _chaude melle_ were proved."[107] All modern codes regard provocation under certain circumstances as a mitigating circumstance.[108] According to the criminal law of Montenegro, great provocation may even relieve a homicide of all guilt.[109]
[Footnote 98: Kovalewsky, _Coutume contemporaine_, p. 291.]
[Footnote 99: _Ancient Laws of Ireland_, iii. pp. xciii. cx.]
[Footnote 100: Wilda, _op. cit._ p. 560 _sqq._, 701. Stemann, _op. cit._ p. 574. von Amira, in Paul's _Grundriss der germanischen Philologie_, ii. pt. ii. 174.]
[Footnote 101: Wilda, _op. cit._ p. 569. von Amira, _loc. cit._ p. 173.]
[Footnote 102: _Das Ostfriesische Land-Recht_, iii. 17 _sq._]
[Footnote 103: _Cf._ Stephen, _op. cit._ iii. 33.]
[Footnote 104: Beaumanoir, _Coutumes du Beauvoisis_, xxx. 101, vol. i. 454 _sq._]
[Footnote 105: Gregory III. _Judicia congrua penitentibus_, 3 (Labbe-Mansi, _op. cit._ xii. 289).]
[Footnote 106: Coke, _Third Institute_, p. 55.]
[Footnote 107: Hume, _Commentaries on the Law of Scotland_, i. 365.]
[Footnote 108: Günther, _op. cit._ iii. 256 _sqq._]
[Footnote 109: _Ibid._ iii. 255 _sq._]
It has been said that a man who acts under the influence of great passion has not, at the time, a full knowledge of the nature and quality of his act, and that {298} the clemency of the law is "a condescension to the frailty of the human frame, to the _furor brevis_, which, while the frenzy lasteth, rendereth the man deaf to the voice of reason."[110] But the main cause for passion extenuating his guilt is not the intellectual disability under which he acts, but the fact that he is carried away by an impulse which is too strong for his will to resist. This is implied in the provision of the law, that "provocation does not extenuate the guilt of homicide unless the person provoked is at the time when he does the act deprived of the power of self-control by the provocation which he has received."[111]
[Footnote 110: Foster, _Report of Crown Cases_, p. 315.]
[Footnote 111: Stephen, _Digest_, art. 246, p. 188.]
That anger has been so generally recognised as an extenuation of guilt is largely due to the fact that the person who provokes it is himself blamable; both morality and law take into consideration the degree of provocation to which the agent was exposed. But, at the same time, the pressure of a non-volitional motive on the will may by itself be a sufficient ground for extenuation. In certain cases of mental disease a morbid impulse or idea may take such a despotic possession of the patient as to drive him to the infliction of an injury. He is mad, and yet he may be free from delusion and exhibit no marked derangement of intelligence. He may be possessed with an idea or impulse to kill somebody which he cannot resist. Or he may yield to a morbid impulse to steal or to set fire to houses or other property, without having any ill-feeling against the owner or any purpose to serve by what he does.[112] The deed to which the patient is driven is frequently one which he abhors, as when a mother kills the child which she loves most.[113] In such cases the agent is of course acquitted by the moral judge, and if he is condemned by the law of his country and its guardians, the reason for this can be nothing but ignorance. We must remember that this form of madness was hardly known even to medical {299} men till the end of the 18th century,[114] when Pinel, to his own surprise, discovered that there were "many madmen who at no period gave evidence of any lesion of the understanding, but who were under the dominion of instinctive and abstract fury, as if the affective faculties had alone sustained injury."[115] And there can be no doubt that the fourteen English judges who formulated the law on the criminal responsibility of the insane, made no reference to this _manie sans délire_ simply because they had not sufficient knowledge of the subject with which they had to deal.[116]
[Footnote 112: Maudsley, _Responsibility in Mental Disease_, p. 133 _sqq._ von Krafft-Ebing, _Lehrbuch der gerichtlichen Psychopathologie_, p. 308 _sqq._]
[Footnote 113: Gadelius, _Om tvångstankar_, p. 168 _sq._ Paulhan, _L'activité mentale_, p. 374.]
[Footnote 114: Maudsley, _op. cit._ p. 141.]
[Footnote 115: Pinel, _Traité médico-philosophique sur l'aliénation mentale_, p. 156: "Je ne fut pas peu surpris de voir plusieurs aliénés qui n'offroient à aucune époque aucune lésion de l'entendement, et qui étoient dominés par une sorte d'instinct de fureur, comme si les facultés affectives seules avoient été lésées."]
[Footnote 116: Sir James Stephen (_Digest_, art. 28, p. 20 _sq._) thinks it _possible_ that, according to the present law of England, an act is not criminal if the person who does it is, at the time when it is done, prevented by any disease affecting his mind from controlling his own conduct, unless the absence of the power of control has been produced by his own default.]
* * * * *
That moral judgments are generally passed, in the first instance, with reference to acts immediately intended, and consider motives only in proportion as the judgment is influenced by reflection, holds good, not only of moral blame, but of moral praise. Every religion presents innumerable examples of people who do "good deeds" only in expectation of heavenly reward. This implies the assumption that the Deity judges upon actions without much regard to their motives; for if motives were duly considered, a man could not be held rewardable for an act which he performs solely for his own benefit. We are told that the homage which the Chinese "render the gods and goddesses believed to be concerned in the management of the affairs of this world is exceedingly formal, mechanical, and heartless," and that "there seems to be no special importance attached to purity of heart."[117] According to Caldwell, "the Hindu religionist enjoins the act alone, and affirms that motives have nothing to do with merit."[118] The argument, "Obey the law because it will {300} profit you to do so," constitutes the fundamental motive of Deuteronomy, as appears from phrases like these: "That it may go well with thee," "That thy days may be prolonged."[119] Speaking of the modern Egyptians, Lane observes that "from their own profession it appears that they are as much excited to the giving of alms by the expectation of enjoying corresponding rewards in heaven as by pity for the distresses of their fellow-creatures, or a disinterested wish to do the will of God."[120] Something similar may be said, not only of the "good deeds" of Muhammedans, but of those of many Christians. Did not Paley expressly define virtue as "the doing good to mankind, in obedience to the will of God, and for the sake of everlasting happiness"?[121]
[Footnote 117: Doolittle, _Social Life of the Chinese_, ii. 397.]
[Footnote 118: Caldwell, _Tinnevelly Shanars_, p. 35.]
[Footnote 119: _Cf._ Montefiore, _Hibbert Lectures_, p. 531.]
[Footnote 120: Lane, _Modern Egyptians_, p. 293.]
[Footnote 121: Paley, _Principles of Moral and Political Philosophy_, i. 7 (_Complete Works_, ii. 38).]
Such views, however, cannot hold their ground against the verdict of the scrutinising moral consciousness. They have been repeatedly contradicted by the great teachers of morality. Confucius required an inward sincerity in all outward practice, and poured scorn on the pharisaism which contented itself with the cleansing of the outside of the cup and platter.[122] He said that, "in the rites of mourning, exceeding grief with deficient rites is better than little demonstration of grief with superabounding rites; and that in those of sacrifice, exceeding reverence with deficient rites is better than an excess of rites with but little reverence."[123] "Sacrifice is not a thing coming to a man from without; it issues from within him, and has its birth in his heart. When the heart is deeply moved, expression is given to it by ceremonies."[124] The virtuous man offers his sacrifices "without seeking for anything to be gained by them."[125] "The Master said, 'See what a man does. Mark his motives.'"[126] The popular Taouist work, called 'The Book of Secret Blessings,' inculcates the necessity {301} of purifying the heart as a preparation for all right-doing.[127] The religious legislator of Brahmanism, whilst assuming in accordance with the popular view that the fulfilment of religious duty will be always rewarded to some extent, whatever may be the motive, maintains that the man who fulfils his duties without regard to the rewards which follow the fulfilment, will enjoy the highest happiness in this life and eternal happiness hereafter.[128] According to the Buddhistic Dhammapada, "if a man speaks or acts with an evil thought, pain follows him, as the wheel follows the foot of the ox that draws the carriage. . . . If a man speaks or acts with a pure thought, happiness follows him, like a shadow that never leaves him."[129] In his description of the Buddhists of Mongolia, the Rev. James Gilmour observes:--"Mongol priests recognise the power of motive in estimating actions . . . . The attitude of the mind decides the nature of the act. He that offers a cup of cold water only, in a proper spirit, has presented a gift quite as acceptable as the most magnificent of donations."[130] With reference to the Hebrews, Mr. Montefiore says:--"If it were true that the later Judaism of the law laid exclusive stress in its moral teaching upon the mere outward act and not upon the spirit--upon doing rather than being, as we might nowadays express it--we should scarcely find that constant harping upon the heart as the source and seat of good and evil. What more legal book than Chronicles? Yet it is there that we find the earnest supplication for a heart directed towards God. . . . The eudæmonistic motive is strongest in Deuteronomy; it is weakest with the Rabbis."[131] Few sayings are quoted and applied more frequently in the Rabbinical literature than the adage which closes those tractates of the Mishna which deal with the sacrificial law:--"He that brings few offerings is as he that brings many; let his heart be directed {302} heavenward."[132] The same faults which Jesus chastises in the hypocritical Rabbis of his day are also chastised in the Talmud. It is said, "Before a man prays let him purify his heart,"[133] and, "Sin committed with a good motive is better than a precept fulfilled from a bad motive."[134] Rabbi Elazar says, "No charity is rewarded but according to the degree of benevolence in it, for it is said, 'Sow (a reward) for yourselves in giving alms as charity, you will reap according to the benevolence.'"[135] Nor is the doctrine which requires disinterested motives for the performance of good deeds foreign to Muhammedan moralists. "Whatever we give," says the author of the Akhlâk-i-Jelâli, "should be given in the fulness of zeal and good-will. . . . We should spend it simply to please God, and not mix the act with any meaner motive, lest thereby it be rendered null and void."[136]
[Footnote 122: _Cf._ Legge, _Religions of China_, p. 261 _sq._; Girard de Rialle, _Mythologie comparée_, p. 214.]
[Footnote 123: _Lî Kî_, ii. 1. 2. 27. _Cf._ _Lun Yü_, iii. 4. 3.]
[Footnote 124: _Lî Kî_, xxii. 1.]
[Footnote 125: _Ibid._ xxii. 2.]
[Footnote 126: _Lun Yü_, ii. 10. 1 _sq._]
[Footnote 127: Douglas, _Confucianism and Taouism_, p. 272.]
[Footnote 128: Wheeler, _History of India_, ii. 478.]
[Footnote 129: _Dhammapada_, 1 _sq._]
[Footnote 130: Gilmour, _Among the Mongols_, p. 239.]
[Footnote 131: Montefiore, _op. cit._ pp. 483, 533. _1 Chronicles_, xxii. 19; xxviii. 9; xxix. 18 _sq._ _2 Chronicles_, xi. 16; xv. 12; xvi. 9.]
[Footnote 132: Montefiore, _op. cit._ p. 484.]
[Footnote 133: _Ibid._ p. 174.]
[Footnote 134: Nazir, fol. 23 B, quoted by Hershon, _Treasures of the Talmud_, p. 74.]
[Footnote 135: Succah, fol. 49 B, _ibid._ p. 11.]
[Footnote 136: Quoted by Ameer Ali, _Ethics of Islâm_, p. 38 _sq._]
CHAPTER XII
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.
CHAPTER XIII
WHY MORAL JUDGMENTS ARE PASSED ON CONDUCT AND CHARACTER--MORAL VALUATION AND FREE-WILL
WE have examined the general nature of the subjects of moral judgments from an evolutionary point of view. We have seen that such judgments are essentially passed on conduct and character, and that allowance is made for the various elements of which conduct and character are composed in proportion as the moral judgment is scrutinising and enlightened. But an important question still calls for an answer, the question, Why is this so? We cannot content ourselves with the bare fact that nothing but the will is morally good or bad. We must try to explain it.
After what has been said above the explanation is not far to seek. Moral judgments are passed on conduct and character, because such judgments spring from moral emotions; because the moral emotions are retributive emotions; because a retributive emotion is a reactive attitude of mind, either kindly or hostile, towards a living being (or something looked upon in the light of a living being), regarded as a cause of pleasure or as a cause of pain; and because a living being is regarded as a true cause of pleasure or pain only in so far as this feeling is assumed to be caused by its will. The correctness of this explanation I consider to be proved by the fact that not only moral emotions, but non-moral retributive emotions as well, are felt with reference to phenomena {315} exactly similar in nature to those on which moral judgments are passed.
Like moral indignation, the emotion of revenge can be felt only towards a sentient being, or towards something which is believed to be sentient. We may be angry with inanimate things for a moment, but such anger cannot last; it disappears as soon as we reflect that the thing in question is incapable of feeling pain. Even a dog which, in playing with another dog, hurts itself, for instance, by running into a tree, changes its angry attitude immediately it notices the real nature of that which caused it pain.[1]
[Footnote 1: Hiram Stanley, _Studies in the Evolutionary Psychology of Feeling_, p. 154 _sq._]
Equivalent to injuries resulting from inanimate things are injuries resulting accidentally from animate beings. If my arm or my foot gives a push to my neighbour, and he is convinced that the push was neither intended nor foreseen nor due to any carelessness whatever on my part, surely he cannot feel angry with me. Why not? Professor Bain answers this question as follows:--"Aware that absolute inviolability is impossible in this world, and that we are all exposed by turns to accidental injuries from our fellows, we have our minds disciplined to let unintended evil go by without satisfaction of inflicting some counter evil upon the offender."[2] Perhaps another answer would be that an accidental injury in no way affects the "self-feeling" of the sufferer. But neither of these explanations goes to the root of the question. Let us once more remember that even a dog distinguishes between being stumbled over and being kicked; and this can neither be the result of discipline, nor have anything to do with the feeling of self-regarding pride.[3] The reason is that the dog scents an enemy in the person who kicks him, but not in the one who stumbles. My neighbour, more clearly still, makes a distinction between a part of my body and myself as a {316} volitional being, and finds that _I_ am no proper object of resentment when the cause of the hurt was merely my arm or my foot. An event is attributed to _me_ as its cause only in proportion as it is considered to have been brought about by my will; and _I_, regarded as a volitional and sensitive entity, can be a proper object of resentment only as a cause of pain.
[Footnote 2: Bain, _Emotions and the Will_, p. 185.]
[Footnote 3: The Koussa Kafirs, according to Lichtenstein (_Travels in Southern Africa_, i. 254), expect a similar discrimination from the elephant; for "if an elephant is killed . . . they seek to exculpate themselves towards the dead animal, by declaring to him solemnly, that the thing happened entirely by accident, not by design."]
We can hardly feel disposed to resent injuries inflicted upon us by animals, little children, or madmen, when we recognise their inability to judge of the nature of their acts. They are not the real causes of the mischief resulting from their deeds, since they neither intended nor foresaw nor could have foreseen it. "Why," says the Stoic, "do you bear with the delirium of a sick man, or the ravings of a madman, or the impudent blows of a child? Because, of course, they evidently do not know what they are doing. . . . . Would anyone think himself to be in his perfect mind if he were to return kicks to a mule or bites to a dog?"[4] Hartley observes, "As we improve in observation and experience, and in the faculty of analysing the actions of animals, we perceive that brutes and children, and even adults in certain circumstances, have little or no share in the actions referred to them."[5]
[Footnote 4: Seneca, _De ira_, iii. 26 _sq._]
[Footnote 5: Hartley, _Observations on Man_, i. 493.]
Deliberate resentment considers the motives of acts. Suppose that a man tells us an untruth. Our feelings towards him are not the same if he did it in order to save our life as if he did it for his own benefit. Moreover, our anger abates, or ceases altogether, if we find that he who injured us acted under compulsion, or under the influence or a non-volitional impulse, too strong for any ordinary man to resist. Then, the main cause or the injury was not his will, conceived as a continuous entity. It yielded to the will of somebody else, reluctantly, as it were out of necessity, or to a powerful conation which forms no part of his real self. He was merely an instrument in another's hands, or he was "beside himself," "beyond himself," "out of his {317} mind." When we are angry, says Montaigne, "it is passion that speaks, and not we."[6] The religious psychology of the ancient Greeks ascribed acts committed upon sudden excitement of mind to the _Ate_ which bewilders the mind and betrays the man into deeds which, in his sober senses, he is heartily sorry for. Hence the Ate has in its train the _Litae_--the humble prayers of repentance, which must make good, before gods and men, whatever has been done amiss.[7] The Vedic singer apologises, "It is not our own will, Varuna, that leads us astray, but some seduction--wine, anger, dice, and our folly."[8] In the Andaman Islands violent outbreaks of ill-temper or resentment are looked upon as the result of a temporary "possession," and the victim is, for the time being, considered unaccountable for his actions.[9] Madness, as we have seen, is frequently attributed to demoniacal possession. In ancient Ireland, again, it was believed to be often brought on by malignant magical agency, usually the work of some druid, hence in the Glosses to the Senchus Mór a madman is repeatedly described as one "upon whom the magic wisp has been thrown."[10] What a person does in madness is not an act committed by _him_.
"Was 't Hamlet wrong'd Laertes? Never Hamlet: If Hamlet from himself be ta'en away, And when he's not himself does wrong Laertes, Then Hamlet does it not, Hamlet denies it. Who does it, then? His madness: if 't be so, Hamlet is of the faction that is wrong'd; His madness is poor Hamlet's enemy."[11]
[Footnote 6: Montaigne, _Essais_, ii. 31 (_[OE]uvres_, p. 396).]
[Footnote 7: _Iliad_, ix. 505 _sqq._ Müller, _Dissertations on the Eumenides_, p. 108.]
[Footnote 8: _Rig-Veda_, vii. 86. 6.]
[Footnote 9: Man, in _Jour. Anthrop. Inst._ xii. 111.]
[Footnote 10: Joyce, _Social History of Ancient Ireland_, i. 224.]
[Footnote 11: Shakespeare, _Hamlet_, v. 2.]
We resent not only acts and volitions, but also omissions, though generally less severely; and when a hurt is attributed to want of foresight, our resentment is, _ceteris paribus_, proportionate to the degree of carelessness {318} which we lay to the offender's charge. A person appears to us as the cause of an injury which we think he could have prevented by his will. But a hurt resulting from carelessness is not to the same extent as an intentional injury caused by the will. And the less foresight could have been expected in a given case, the smaller share has the will in the production of the event.
Our resentment is increased by a repetition of the injury, and reaches its height when we find that our adversary nourishes habitual ill-will towards us. On the other hand, as we have noticed in a previous chapter,[12] the injured party is not deaf to the prayer for forgiveness which springs from genuine repentance. Like moral indignation, non-moral resentment takes into consideration the character of the injurer.
[Footnote 12: _Supra_, ch. iii.]