relations." 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.2 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.3 Among the Kandhs only slight compensation is awarded "for wounds, however serious, given under circumstances of extreme provocation." "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.”5

4

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." 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."

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. It is said that a man shall be put to death if he "come presumptuously upon his neighbour, to slay him with guile," or if he "hate his neighbour, and lie in wait for him, and rise up against him, and smite him mortally that he die." 10 On the other hand, he shall be allowed a resort to a city

of refuge if "he lie not in wait," 1 or if he thrust his neighbour "suddenly without enmity."2

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. 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. Aristotle, also, whilst denying that "acts done from anger or from desire are involuntary," 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." 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." 7 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." 8

Öf ancient Russian law M. Kovalewsky observes, "L'existence d'une excitation violente est prise cn considération, par notre antique législation, qui déclare le crime accompli sous leur influence non imputable."9 " According to ancient Irish law, "homicide was divisible into the two classes of simple manslaughter and murder, the difference between which lay in the

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.1 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; 2 this opinion seems partly to be at the bottom of the distinction which they made between open and secret homicide.3 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.* 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; 5 Beaumanoir, the French jurist, who lived in the same age, mentions in his 'Coutumes du Beauvoisis' provocation as an extenuating circumstance, and the same view was taken by the Church. 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."8 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."9 All modern codes regard provocation under certain circumstances as a mitigating circumstance.10 According to the criminal law of Montenegro, great provocation may even relieve a homicide of all guilt."1

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

1 Ancient Laws of Ireland, iii. pp. xciii. cx.

2 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.

3 Wilda, op. cit. p. 569. von Amira, loc. cit. p. 173.

17 sq.

Das Ostfriesische Land-Recht, iii.

Cf. Stephen, op. cit. iii. 33.

6 Beaumanoir, Coutumes du Beauvoisis, xxx. 101, vol. i. 454 sq.

7 Gregory III. Judicia congrua penitentibus, 3 (Labbe-Mansi, op. cit. xii. 289).

8 Coke, Third Institute, p. 55. 9 Hume, Commentaries on the Law of Scotland, i. 365.

10 Günther, op. cit. iii. 256 sqq.

11 Ibid. iii. 255 sq.

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. 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 r ceived." 2

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. 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.* 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

1 Foster, Report of Crown Cases, P. 315.

3

2 Stephen, Digest, art. 246, p. 188. Maudsley, Responsibility in Mental Disease, p. 133 sqq. von Krafft-Ebing,

Lehrbuch der gerichtlichen Psychopathologie, p. 308 sqq.

4Gadelius, Om tvangstankar, p. 168 sq. Paulhan, L'activité mentale, P. 374.

men till the end of the 18th century, 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.' 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.

"2

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."4 "4 According to Caldwell, "the Hindu religionist enjoins the act alone, and affirms that motives have nothing to do with merit. The argument, "Obey the law because it will

95

1 Maudsley, op. cit. p. 141.

2 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."

3 Sir James Stephen (Digest, art. 28, p. 20 sq.) thinks it possible that, according to the present law of England, an