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heavenward." 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," and, "Sin committed with a good motive is better than a precept fulfilled from a bad motive." 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."" 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." 5

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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 of 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 wilfulness 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; 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

1 Stephen, History of the Criminal Law of England, ii. 113. Hepp,

Zurechnung auf dem Gebiete des Civilrechts, p. 115 (Roman law).

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?"i

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, "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

1 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 Napolitane 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 ").

2 Seeley, Ecce Homo, p. 176.

gate full of sores and yet no man gave unto him; in the case of the servant who hid in a napkin napkin the talent committed to him. However, to say that the new morality involved the discovery of "a new continent in the moral globe," 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."

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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.

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3 Pollock and Maitland, History of English Law before the Time of Edward I. ii. 470.

X

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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. 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." 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." 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. 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"; 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.' “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. 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.' In all these cases you did something that helped to bring

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5 Leges Henrici I. xc. 11. Bracton, op. cit. fol. 141 b, vol. ii. 440 sq.

6 Pollock and Maitland, op. cit. ii. 470 sq.

7 Leges Henrici I. lxxxviii. 9. 8 Ibid. xc. II. Pollock and Maitland, op. cit. ii. 471,