CHAPTER IX

THE WILL AS THE SUBJECT OF MORAL JUDGMENT AND THE INFLUENCE OF EXTERNAL EVENTS

HOWEVER obvious it may be to the reflecting moral consciousness that the only proper object of moral blame and praise is the will, it would be a hasty conclusion to assume that moral judgments always and necessarily relate to the will. There are numerous facts which tend to show that such judgments are largely influenced by external events involved in, or resulting from, the conduct of men.

Some peoples are said to make no distinction between intentional and accidental injuries. Most statements to this effect refer to revenge or compensation.

1

Von Martius states that, among the Arawaks, "the bloodrevenge 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 Mr. 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

1 von Martius, Beiträge zur Ethnographie Amerika's, i. 693 sq.

2 Im Thurn, Among the Indians of Guiana, p. 214.

as could be expected."1 Among the Ondonga in South Africa,2 the Nissan Islanders in the Bismarck Archipelago,3 and certain Marshall Islanders, 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." It seems that the blood-revenge of the early Greeks was equally indiscriminate. 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; 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.s 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. 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.10 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.11

1 Adair, History of the American Indians, p. 150.

2 Rautanen, in Steinmetz, Rechtsverhältnisse, p. 341.

3 Sorge, ibid. p. 418.

4 Kohler, in Zeitschr. f. vergl. Rechtswiss. xiv. 443. See also Idem, Shakespeare vor dem Forum der Jurisprudenz, p. 188.

5 Fisher, in Jour. Asiatic Soc. Bengal, ix. 835.

Rohde, Psyche, pp. 237, 238, 242.

7 Wilda, Strafrecht der Germanen, P. 174.

8 Snorri Sturluson, Gylfaginning,' 50, in Edda, p. 59. Cf. Brunner, Forschungen zur Geschichte des deutschen und französisthen Rechtes, p. 489.

Pollock and Maitland, History of English Law before the Tim of Edward I. ii. 482.

10 Tees Henrici I. rc. 7.

11 Pollock and Maiti and, op. cit. ii.

Among the Kandhs "similar compensation is made in all cases both of excusable homicide and of manslaughter.' 99 1 And the same is said to be the case among various other savages or barbarians. 2

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.

"3

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.' 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. 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." 5 Among the negroes of Accra, according to Monrad, accidental homicide is punished as severely as intentional.

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

1 Macpherson, Memorials of Service in India, p. 82.

2 Crawfurd, History of the Indian Archipelago, iii. 123. Ellis, Ewespeaking Peoples of the Slave Coast, p. 223. Munzinger, Ostafrikanische Studien, p. 502 (Barea and Kunáma). `

3 Scott Robertson, Kafirs of the Hindu-Kush, p. 440.

Parkyns, Life in Abyssinia, ii. 236 599.

5 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).

6 Monrad, Guinea-Kysten og dens Indbyggere, p. 88.

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 bloodrevenge is taken for voluntary homicide, compensation is accepted for accidental infliction of death. 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.

8

Among the African Wapokomo intention makes a difference in the revenge.2 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.3 Among the Namaqua Hottentots custom demands that compensation should be accepted for unintentional killing. We meet with the same principle among the Albanians 5 and the Slavs, in the past history of other European peoples, in ancient Yucatan, and in the religious law of Muhammedanism. Among the Kabyles of Algeria, “si les mœurs 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.10 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." 11 The

7 Leist, Græco-italische Rechtsge schichte, p. 324. Ancient Laws of Ireland, iii. p. cxxiv. For the ancient Teutons, see infra, p. 226.

8 de Landa, Relacion de las cosas de Yucatan, p. 134.

9 Koran, iv. 94. Cf. Sachau, Muhammedanisches Recht nach Schafiitischer Lehre, p. 761 sq.

10 Hanoteau and Letourneux, La Kabylie, iii. 68 sq.

11 Dorsey, 'Omaha Sociology,' in Ann. Rep. Bur. Ethn. iii. 370.

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.1 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.2

Among some peoples who accept compensation even for wilful murder, the blood-price is lower if life is taken unintentionally.3

According to Bowdich, "a person accidentally killing another in Ähanta, 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."4 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." 5

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

1 Deuteronomy, iv. 42. Numbers, XXXV. II sqq. Joshua, xx. 3 sqq.

2 Servius, In Virgilii Bucolica, iv. 43. Cf. von Jhering, Das Schuldmoment im römischen Privatrecht, p.

11.

Beverley, in Steinmetz, Rechtsver

"

hältnisse, p. 215 (Wagogo). Dareste, Nouvelles études d'histoire du droit, p. 237 (Swanetians of the Caucasus).

Bowdich, Mission from Cape Castle to Ashantee, p. 258 n. ‡.

6 Cherry, Growth of Criminal Law in Ancient Communities, p. 22.