1

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."

2

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.3

3

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

5

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.

7 Leges Henrici I. lxxxviii. 9.

8 Ibid. xc. II. Pollock and Mait.. land, 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 with 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," except when the instrument of death was a goring ox.* 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.

5

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.

A father or a teacher

3 Numbers, xxxv. 16 sqq. Deuteronomy, xix. 4 sqq.

4 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.1 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.2 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.*

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.

3 Three Early Assize Rolls for the County of Northumberland, p. 96 sq. 4 Kovalewsky, Coutume contemporaine, p. 295.

And the

to look out for it.1 Not long ago there were plausible, if insufficient, grounds adduced for asserting that in English courts a plea that there was neither negligence nor an intent to do harm was no answer to an action which charged the defendant with having hurt the plaintiff's body. And of late years attacks have been made by continental jurists upon the Roman principle that there is no liability where there is no fault a principle which, more or less modified, has been adopted by modern laws.* Although they take pains to point out the difference between punishment and indemnification, the very language they use indicates the quasi-ethical basis on which their theory rests. It is only just, they say, that he who has caused the evil should compensate for it, since the injured party "is still much more innocent than he." "sense of justice" is appealed to for compelling a man who faints in the street and in the fall happens to break some fragile articles to indemnify the owner for his loss.5 Thus, whilst loss from accident is generally allowed to lie where it falls, an exception is made where the instrument of misfortune is a human being. This is a most unreasonable exception, but one not difficult to explain. People are ready to blame a person who commits a harmful deed, whether he deserves blame or not; at the same time they are apt to overlook the indirect and more remote cause of the harm which lies in the sufferer's own conduct. Hence the liability, if not the guilt, is laid on him who is a cause of pain by doing something, even though it be by merely spasmodic contractions of his muscles; whereas the other party, who only exposed himself to the risk of being hurt, is regarded as the "more innocent."

Whilst culpability or quasi-culpability is thus imputed to the innocent committer of a harmful deed, little or no

1 Holmes, Common Law, p. 80. 2 Stanley v. Powell, in Law Reports, Queen's Bench Division, 1891, i. 86 sqq. Pollock and Maitland, op. cit. ii. 475 sq. 3 von Jhering, Schuldmoment römischen Privatrecht, passim, especially pp. 20 sqq., 40 sqq. Hepp,

im

op. cit. p. 106.

Forsman, Bidrag till läran om skadestånd i brottmål, p. 158 sq. Pollock, Law of Torts, p. 129 sqq.

5 Thon, Rechtsnorm und subjectives Recht, p. 106, n. 71.