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 to abstain from bringing it 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,2 "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 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.": 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. 1 Ibid. p. 179. 2 Curr. Recollections of Squatting in Victoria, p. 264 sq. VOL. I 3 Pollock and Maitland, History of English Law before the Time of Edward I. ii. 470. X 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.1 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 118 5 Leges Henrici I. xc. II. Bracton, op. cit. fol. 141 b, vol. ii. 440 sq. 6 Pollock and Maitland, op. cit. ii. 470 sq. 1 Leges Henrici I. lxxxviii. 9. 8 Ibid. xc. II. Pollock and Maitland, op. cit. ii. 471. about death or wound, and you are consequently held responsible for the mishap. 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. According to the Laws of Hammurabi, "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 Iwith the bronze lancet and has caused the loss of the gentleman's eye, one shall cut off his hands." 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, 3 except when the instrument of death was a goring ox.1 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. 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 1 Wilda, Strafrecht der Germanen, p. 578. Geyer, op. cit. p. 88. Brunner, Forschungen zur Geschichte des deutschen und französischen Rechtes, P. 499. 2 Laws of Hammurabi, 218. 3 Numbers, xxxv. 16 sqq. Deuteronomy, xix. 4 sqq. Exodus, xxi. 28-32, 35 sq. Cf. Laws of Hammurabi, 250 sqq. 5 Rabbinowicz, Législation criminelle du Talmud, p. 173 sqq. 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. 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." 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. 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.* 4 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 1 Ibid. p. 174. Benny, Criminal Code of the Jews according to the Talmud Massecheth Synhedrin, p. 115 sq. 2 Pollock and Maitland, op. cit. ii. 474, n. 4. 8 Three Early Assize Rolls for the County of Northumberland, p. 96 sq. 4 Kovalewsky, Coutume contemporaine, p. 295. |