Among the Kandhs "similar compensation is made in all cases both of excusable homicide and of manslaughter." 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.

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, i. 123. Ellis, Ewespeaking Peoples of the Slave Coast, p. 223. Munzinger, Ostafrikanische Studien, p. 502 (Barea and Kunáma).

Scott Robertson, Káfirs of the Hindu-Kush, p. 440.

4

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).

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 persecu-,, tions of the dead man's family.

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." The

1 Cf. Kohler, Shakespeare vor dem Forum der Jurisprudenz, p. 188, n. 1. 2 Kraft, in Steinmetz, Rechtsverhältnisse, p. 292.

3 Bamler, quoted by Kohler, in Zeitschr. f. vergl. Rechtswiss. xiv. 380. Fritsch, Die Eingeborenen SüdAfrika's, p. 363.

Gopčević, Oberalbanien und seine Liga, p. 327.

Miklosich, 'Blutrache bei den Slaven,' in Denkschriften der kaiserl. Akademie der Wissensch. Philos.. histor. Classe, Vienna, xxxvi. 131.

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. 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 Ahanta, pays 5 oz. of gold to the family, and defrays the burial customs. In the case of murder, it is 20 oz. of gold and a slave; or, he and his family become the slaves of the family of the deceased."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.

If a

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. 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. 11 sqq. Joshua, xx. 3 sqq.

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

II.

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. ‡.

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

femoral artery that he dies, the man who did so would have to submit to be speared through both thighs himself." In New Guinea, according to Dr. Chalmers, murder is punished capitally, whereas a death caused by accident is expiated by a fine.2 Among the Mpongwe, "except in the case of a chief or a very rich man, little or no difference is made between wilful murder, justifiable homicide, and accidental manslaughter." 3 Kafir law seems to demand no compensation for what is clearly proved to have been a strictly accidental injury to property, but the case is different in regard to accidental injuries to persons, if the injury be of a serious nature. Thus it seems to make little or no distinction between wilful murder and any other kind of homicide; unless it be, perhaps, that in purely accidental homicide the full amount of the fine may not be so rigidly insisted upon."4 ."4 Among the A-lür, in the case of accidental injuries, a compensation is paid to the injured party and a fine to the chief. Whilst the strict punishment for murder is death, the culprit is allowed to redeem himself if it cannot be proved that he committed the deed wilfully.5 The Masai regard accidental homicide, or injury, as "the will of N'gai," "the Unknown," and "the elders arrange what compensation shall be paid to the injured person (if a male) or to the nearest relative. If a woman is killed by accident, all the killer's property becomes the property of the nearest relative." The Eastern Central Africans, according to the Rev. D. Macdonald, "know the difference between an injury of accident and one of intention." And so do the natives of Nossi-Bé and Mayotte, near Madagascar.8

Nay, there are instances of uncivilised peoples who entirely excuse, or do not punish, a person for an injury which he has inflicted by mere accident, even though they may compel him to pay damages for involuntary, destruction of property.

We are told that the Pennsylvania Indians "judge with calmness on all occasions, and decide with precision, or endeav

1 Grey, Journals of Expeditions of Discovery in North-West and Western Australia, ii. 238 sq.

2 Chalmers, Pioneering in New Guinea, p. 179.

3 Burton, Two Trips to Gorilla Land, i. 105.

Maclean, Compendium of Kafir

Laws and Customs, pp. 113, 67, 60.

5 Stuhlmann, Mit Emin Pascha ins Herz von Afrika, p. 524.

6 Hinde, The Last of the Masai, p. 108.

7 Macdonald, Africana, i. II.

8 Walter, in Steinmetz, Rechtsverhältnisse, p. 393.

our to do so, between an accident and a wilful act; the first, they say, they are all liable to commit, and therefore it ought not to be noticed, or punished; the second being a wilful or premeditated act, committed with a bad design, ought on the contrary to receive due punishment."1 Among some of the Marshall Islanders unintentional wrongs are punished only if the injured party be a person of note, for instance, a chief, or a member of a chief's family.? Among the Papuans of the Tami Islands, "accidental injuries are not punished. Generally the culprit confesses his deed, and makes an apology. If he has caused the destruction of some valuable, he has to repair the loss." 3 Among the Wadshagga there is no punishment for an accidental hurt; but if anybody's property has been damaged thereby, a compensation amounting to one half of the damage may be required. The Hottentots do not nowadays punish accidents, even in the case of homicide. Among the Washambala a person is held responsible only for such injuries as he has inflicted intentionally or caused by carelessness.6 some parts of West Africa, if a man, woman, or child, not knowing what he or she does, damages the property of another person, "native justice requires, and contains in itself, that if it can be proved the act was committed in ignorance that was not a culpable ignorance, the doer cannot be punished according to the law."7

These instances of occasional discrimination in savage justice are particularly interesting in the face of the fact that, even among peoples who have attained a higher degree of culture, innocent persons are often punished by law for bringing about events without any fault of theirs.

It is a principle of the Chinese law that "all persons who kill or wound others purely by accident, shall be permitted to redeem themselves from the punishment of killing or wounding in an affray, by the payment in each case of a fine to the family of the person deceased or wounded." But there are exceptions to this rule. Any

1 Buchanan, North American Indians, p. 160 sq.

Kohler, in Zeitschr. f. vergl. Rechtswiss. xiv. 448.

Bamler, quoted by Kohler, ibid. xiv. 381.

Merker, quoted by Kohler, ibid.

xv. 64.

5 Kohler, ibid. xv. 353.

6 Lang, in Steinmetz, Rechtsverhältnisse, p. 261.

7 Miss Kingsley, in her Introduction to Dennett's Notes on the Folklore of the Fjort, p. xi.

8 Ta Tsing Leu Lee, sec. ccxcii. p. 314.