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.

5

4

7

6

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 and the Slavs, in the past history of other European peoples, in ancient Yucatan,8 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.

5 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 Rechtsgeschichte, 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.

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.

II.

3 Beverley, in Steinmetz, Rechtsver

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

4 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 Among the A-lur, 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." 6 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

7

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.

4 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. 11.

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

3

1

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." 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.2 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." 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.5 Among the Washambala a person is held responsible only for such injuries as he has inflicted intentionally or caused by carelessness. In 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."8 But there are exceptions to this rule. Any

1 Buchanan, North Indians, p. 160 sq.

American

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

3 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,

person who kills his father, mother, paternal grandfather or grandmother, and any wife who kills her husband's father, mother, paternal grandfather or grandmother, purely by accident, shall still be punished with 100 blows and perpetual banishment to the distance of 3,000 lee. In the case of wounding purely by accident, the persons convicted thereof shall be punished with 100 blows and three years banishment: in these cases, moreover, the parties shall not be permitted to redeem themselves from punishment by the payment of a fine, as usual in the ordinary cases of accident." Again, slaves who accidentally kill their masters, " shall suffer death, by being strangled at the usual period." 2 It is also a characteristic provision of the Chinese law that an act of grace is necessary for relieving all those from punishment who have offended accidentally and inadvertently.3

1

It is said in the Laws of Hammurabi :-"If a man has struck a man in a quarrel, and has caused him a wound, that man shall swear I did not strike him knowing' and shall answer for the doctor. If he has died of his blows, he shall swear, and if he be of gentle birth he shall pay half a mina of silver. If he be the son of a poor man, he shall pay one-third of a mina of silver." 4

5

It has been observed that the purpose of the Hebrew law of sanctuary was not merely to protect the involuntary manslayer from blood-revenge, but at the same time to punish him and compel him to expiate the blood he has shed. If he left the city of refuge before the death of the high-priest, the avenger of blood might kill him without incurring blood-guiltiness; and he was not permitted to purchase an earlier return to his possession with a money ransom."

According to the Laws of Manu, "he who damages the

1 Ibid. sec. cccxix. p. 347. Cf. ibid. sec. ccxcii. p. 314.

2 Ibid. sec. cccxiv. p. 338.

3 Ibid. sec. xvi. p. 18.

4 Laws of Hammurabi, 206 sqq.
5 Goitein, Das Vergeltungsprincip

im biblischen und talmudischen Strafrecht, p. 25 sq. Keil, Manual of Biblical Archaeology, ii. 371.

6 Numbers, xxxv. 26 sqq.

7 Ibid. xxxv. 32.