to excuse him.' On the other hand, where the law makes. no difference between an offender who is sober and an offender who is drunk, the culpability of the latter is exaggerated in consequence of the stirring effect which the outward event has upon public feelings. So great is the influence of the event that certain laws, most unreasonably, punish a person both for what he does when drunk and for making himself drunk. Thus Aristotle tells us that legislators affixed double penalties to crimes committed in drunkenness.2 The same was done by Charles V., in an edict of 1531,3 and by Francis I. in 1536. Hardly more reasonable is it that the very society which shows no mercy whatever to the intoxicated offender, is most indulgent to the act of intoxication itself when not accompanied by injurious consequences. Of course it may be argued that drunkenness is blamable in proportion as the person who indulges in it might expect it to lead to mischievous results. It has also been said that, if drunkenness were allowed to excuse, the gravest crimes might be committed with impunity by those who either counterfeited the state or actually assumed it. Some people even maintain that inebriation brings out a person's true characIn a Chinese story we read, "Many drunkards will tell you that they cannot remember in the morning the extravagances of the previous night, but I tell you this is all nonsense, and that in nine cases out of ten those extravagances are committed wittingly and with malice prepense. However, with all allowance for such considerations, I venture to believe that in this, as in many other cases where an injury results from want of foresight, the extreme severity of certain laws is largely due to the fact that the legislator has been more concerned with the external deed than with its source.

ter.

1 Cf. Dorsey, 'Siouan Cults,' in Ann. Rep. Bur. Ethn. xi. 424. 5. 8.

2 Aristotle, Ethica Nicomachea, iii.

3 Damhouder, Praxis rerum crinii

nalium, xxxiv. 20, p. 241.

195

4 Isambert, Decrusy, and Armet, op. cit. xii. 527.

5 Giles, op. cit. ii. 30.

CHAPTER XI

MOTIVES

No enlightened and conscientious moral judge can regard his judgment as final, unless he know the motive, or motives, of the volition by which his judgment is occasioned. But in ordinary moral estimates little attention is paid to motives. Men desire that certain acts should be performed, and that certain other acts should be abstained from. The conative causes of acts or forbearances are not equally interesting, and they are often hidden. They are considered only in proportion as the moral judgment is influenced by reflection.

Take, for instance, acts which are performed from a sense of duty. It is commonly said that a person ought to obey his conscience. Yet, in point of fact, by doing so he may expose himself to hardly less censure than does the greatest villain. The reason for this is not far to seek. A man's moral conviction is to some extent an expression of his character, hence he may be justly blamed for having a certain moral conviction. And the blame which he may deserve on that account is easily exaggerated, partly because people are apt to be very intolerant concerning opinions of right and wrong which differ from their own, partly owing to the influence which external events exercise upon their minds.

Somewhat greater discrimination is shown in regard to motives consisting of powerful non-volitional conations which in no way represent the agent's character, but to which

he yields reluctantly, or by which he is carried away on the spur of the moment. In many such cases even the lawwhich regards it as no excuse if a person commits a crime from a feeling of duty'-displays more or less indulgence to the perpetrator of a harmful deed.

Thus, in the eye of the law, compulsion is oftentimes a ground of extenuation. Strictly speaking, a volition can never be compelled into existence;2 to act under compulsion really means to act under the influence of some non-voluntary motive, so powerful that every ordinary human will would yield to it. As Aristotle puts it, pardon is given when "a man has done what he ought not to have done through fear of things beyond the power of human nature to endure, and such that no man could undergo them. And yet, perhaps, there are some things which a man must never allow himself to be compelled to do, but must rather choose death by the most exquisite torments."3 This principle has been in some degree recognised by legislation. In many cases of felony, if a married woman commits the crime in the presence of her husband, the law of England presumes that she acts under his coercion, and therefore excuses her from punishment, unless the presumption of law is rebutted by evidence; but children. and servants are not acquitted if committing crimes by the command of a parent or a master. Besides the presumption made in favour of married women, compulsion by threats of injury to person or property is recognised as an excuse for crime only, as it seems, in cases in which the compulsion is applied by a body of rebels or rioters, and in which the offender takes a subordinate part in the offence." In a time of peace, on the other hand, though a man be violently assaulted, and have no other possible

means of escaping death but by killing an innocent person, if he commit the act he will be guilty of murder; "for he ought rather to die himself, than kill an innocent." 1 It has even been laid down as a general principle that "the apprehension of personal danger does not furnish any excuse for assisting in doing any act which is illegal."2 But the English law relating to duress per minas, and to constraint in general, seems to be harsher both than most modern continental laws and than Roman law. Some of the Italian practitioners were even of opinion that a person who committed homicide by the command of his prince or some other powerful man was exempt from all punishment. According to the Talmud, any offence perpetrated under compulsion or in mortal fear is excusable in the eye of the law, excepting only murder and adultery."

Suppose, again, that the motive of breaking the law is what has been called "compulsion by necessity." The old instance of shipwrecked persons in a boat unable to carry them all is a standing illustration of this principle. Sir James Stephen says, that "should such a case arise, it is impossible to suppose that the survivors would be subjected to legal punishment." Yet, in a very similar case, occurring in the year 1884, they were. Three men and a boy escaped in an open boat from the shipwreck of the yacht Mignonette. After passing eight days without food, and seeing no prospect of relief, the men killed the boy, who was

1 Hale, op. cit. i. 51. Harris, op. cit. p. 24 sq.

2 Denman, C. J., in Reg. v. Tyler, reported in Carrington and Payne, Reports of Cases argued and ruled at Nisi Prius, viii. 621.

Code Pénal, art. 64; Chauveau and Hélie, Théorie du Code Pénal, i. 534 sqq. Italian Codice Penale, art. 49. Spanish Código Penal reformado, art. 8, 89 sqq. Finger, Compendium des österreichischen Rechtes--Das Strafrecht, i. 119. Foinitzki, in Législation pénale comparée, edited by von Liszt, p. 530 (Russian law). Ottoman Penal Code, art. 42.

4 Mommsen, Römisches Strafrecht,

p. 653. Janka, Der strafrechtliche Notstand, p. 48.

5

Janka, op. cit. p. 60. A different view, however, is expressed by Covarruvias (De matrimoniis, ii. 3. 4. 6 sq. [Opera omnia, i. 139]):—“ Metus numquam excusat nec a mortali, nec a veniali crimine. Peccatum maximum malum, nec eo quid grauius."

6 Benny, Criminal Code of the Jews according to the Talmud Massecheth Synhedrin, p. 125.

7 Stephen, op. cit. ii. 108. So, also, according to Bacon's Maxims of the Law, reg. 5 (Works, vii. 344), homicide is in such a case justifiable.

2

on the verge of death, in order to feed on his body. Four days later they were rescued by a passing ship; and, on their arrival in England, two of the men were tried for the murder of the boy. The defence raised was that the act was necessary for the purpose of self-preservation. But it was held by the Court for Crown Cases Reserved, that such necessity was no justification of the act of causing death when there was a distinct intention to take away the life of another innocent person. However, the sentence of death was afterwards commuted by the Crown to six months' imprisonment.' In the same case it was even said that if the boy had had food in his possession, and the others had taken it from him, they would have been guilty of theft. Bacon's proposition that "if a man steal viands to satisfy his present hunger, this is no felony nor larceny," is not law at the present day. It was expressly contradicted by Hale, who lays down the following rule :"If a person, being under necessity for want of victuals, or clothes, shall upon that account clandestinely, and animo furandi steal another man's goods, it is felony and a crime by the laws of England punishable with death; altho the judge, before whom the trial is, in this case (as in other cases of extremity) be by the laws of England intrusted with a power to reprieve the offender before or after judgment, in order to the obtaining the king's mercy.' Britton excuses" infants under age, and poor people, who through hunger enter the house of another for victuals under the value of twelve pence.' According to the Swedish Westgöta-Lag, a poor man who can find no other means of relieving himself and his family from hunger may thrice with impunity appropriate food belonging to somebody else, but if he does so a fourth time he is punished for theft. The Canonist says, "Necessitas legem non

1 Reg. v. Dudley and Stephens, in Law Reports, Cases determined in the Queen's Bench Division, xiv. 273 sqq. 2 Ibid. xiv. 276.

3 Bacon, Maxims of the Law, reg. 5 (Works, vii. 343).

4 Reg. v. Dudley and Stephens, in

"6

Law Reports, Queen's Bench Division, xiv. 286,

Hale, op. cit. i. 54.

6 Britton, i. II, vol. i. 42.

7 Westgöta-Lagen II. Þiufua bolker, 14, p. 164 sq.