existence or absence of malice aforethought, the fine in the latter being double what it was in the former case ; and for a wound which was inflicted inadvertently in lawful anger, the payment was made upon a diminished scale.1 The ancient Teutons, also, held a wrong committed in sudden anger and on provocation to be less criminal than one committed with premeditation in cold blood; 2 this opinion seems partly to be at the bottom of the distinction which they made between open and secret homicide.3 According to the law of the East Frisians, a man who kills another without premeditation may buy off his neck with money, not so he who commits a murder with malice aforethought.4 It is curious that Bracton should take no notice of the different grades of evil intention which may accompany voluntary homicide, and that he should omit altogether the question of provocation; 5 Beaumanoir, the French jurist, who lived in the same age, mentions in his 'Coutumes du Beauvoisis' provocation as an extenuating circumstance, and the same view was taken by the Church. Coke, in his Third Institute-which may be regarded as the second source of the criminal law of England, Bracton being the first-gives an account of malice aforethought, and adds, "Some manslaughters be voluntary, and not of malice forethought, upon some sudden falling out. Delinquens per iram provocatus puniri debet mitius." Hume says that in Scotland "the manslayer on suddenty was to have the benefit of the girth or sanctuary: he might flee to the church or other holy place; from which he might indeed be taken for trial, but to be returned thither, safe in life and limb, if his allegation of chaude melle were proved."9 All modern codes regard provocation under certain circumstances as a mitigating circumstance.10 According to the criminal law of Montenegro, great provocation may even relieve a homicide of all guilt.11

It has been said that a man who acts under the influence of great passion has not, at the time, a full knowledge of the nature and

1 Ancient Laws of Ireland, iii. pp. xciii. cx.

2 Wilda, op. cit. p. 560 sqq., 701. Stemann, op. cit. p. 574. von Amira, in Paul's Grundriss der germanischen Philologie, ii. pt. ii. 174.

3 Wilda, op. cit. p. 569. von Amira, loc. cit. p. 173.

4 Das Ostfriesische Land-Recht, iii. 17 sq.

Cf. Stephen, op. cit. iii. 33.

quality of his act, and that

Beaumanoir, Coutumes du Beauvoisis, XXX. 101, vol. i. 454 sq.

7 Gregory III. Judicia congrua pænitentibus, 3 (Labbe-Mansi, op. cit. xii. 289).

8 Coke, Third Institute, p. 55. 9 Hume, Commentaries on the Law of Scotland, i. 365.

10 Günther, op. cit. iii. 256 sqq.

11 Ibid. iii. 255 sq.

the clemency of the law is "a condescension to the frailty of the human frame, to the furor brevis, which, while the frenzy lasteth, rendereth the man deaf to the voice of reason. But the main cause for passion extenuating his guilt is not the intellectual disability under which he acts, but the fact that he is carried away by an impulse which is too strong for his will to resist. This is implied in the provision of the law, that "provocation does not extenuate the guilt of homicide unless the person provoked is at the time when he does the act deprived of the power of self-control by the provocation which he has 1 ceived." 2

That anger has been so generally recognised as an extenuation of guilt is largely due to the fact that the person who provokes it is himself blamable; both morality and law take into consideration the degree of provocation to which the agent was exposed. But, at the same time, the pressure of a non-volitional motive on the will may by itself be a sufficient ground for extenuation. In certain cases of mental disease a morbid impulse or idea may take such a despotic possession of the patient as to drive him to the infliction of an injury. He is mad, and yet he may be free from delusion and exhibit no marked derangement of intelligence. He may be possessed with an idea or impulse to kill somebody which he cannot resist. Or he may yield to a morbid impulse to steal or to set fire to houses or other property, without having any ill-feeling against the owner or any purpose to serve by what he does. The deed to which the patient is driven is frequently one which he abhors, as when a mother kills the child which she loves most.1 In such cases the agent is of course acquitted by the moral judge, and if he is condemned by the law of his country and its guardians, the reason for this can be nothing but ignorance. We must remember that this form of madness was hardly known even to medical

men till the end of the 18th century,' when Pinel, to his own surprise, discovered that there were many madmen who at no period gave evidence of any lesion of the understanding, but who were under the dominion of instinctive and abstract fury, as if the affective faculties had alone sustained injury. And there can be no doubt that the fourteen English judges who formulated the law on the criminal responsibility of the insane, made no reference to this manie sans délire simply because they had not sufficient knowledge of the subject with which they had to deal.3

"2

That moral judgments are generally passed, in the first instance, with reference to acts immediately intended, and consider motives only in proportion as the judgment is influenced by reflection, holds good, not only of moral blame, but of moral praise. Every religion presents innumerable examples of people who do "good deeds" only in expectation of heavenly reward. This implies the assumption that the Deity judges upon actions without much. regard to their motives; for if motives were duly considered, a man could not be held rewardable for an act which he performs solely for his own benefit. We are told that the homage which the Chinese " render the gods and goddesses believed to be concerned in the management of the affairs of this world is exceedingly formal, mechanical, and heartless," and that "there seems to be no special importance attached to purity of heart." According to Caldwell," the Hindu religionist enjoins the act alone, and affirms that motives have nothing to do with merit.' The argument, "Obey the law because it will

"5

1 Maudsley, op. cit. p. 141.

2 Pinel, Traité médico-philosophique sur l'aliénation mentale, p. 156: "Je ne fut pas peu surpris de voir plusieurs aliénés qui n'offroient à aucune époque aucune lésion de l'entendement, et qui étoient dominés par une sorte d'instinct de fureur, comme si les facultés affectives seules avoient été lésées."

Sir James Stephen (Digest, art. 28, p. 20 sq.) thinks it possible that, according to the present law of England, an

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profit you to do so," constitutes the fundamental motive of Deuteronomy, as appears from phrases like these: "That it may go well with thee," "That thy days may be prolonged." Speaking of the modern Egyptians, Lane observes that "from their own profession it appears that they are as much excited to the giving of alms by the expectation of enjoying corresponding rewards in heaven as by pity for the distresses of their fellow-creatures, or a disinterested wish to do the will of God." Something similar may be said, not only of the "good deeds" of Muhammedans, but of those of many Christians. Did not Paley expressly define virtue as "the doing good to mankind, in obedience to the will of God, and for the sake of everlasting happiness"?3

Such views, however, cannot hold their ground against the verdict of the scrutinising moral consciousness. They have been repeatedly contradicted by the great teachers of morality. Confucius required an inward sincerity in all outward practice, and poured scorn on the pharisaism which contented itself with the cleansing of the outside of the cup and platter. He said that, "in the rites of mourning, exceeding grief with deficient rites is better than little demonstration of grief with superabounding rites; and that in those of sacrifice, exceeding reverence with deficient rites is better than an excess of rites with but little reverence." 5 "Sacrifice is not a thing coming to a man from without; it issues from within him, and has its birth in his heart. When the heart is deeply moved, expression is given to it by ceremonies." The virtuous man offers his sacrifices "without seeking for anything to be gained by them."7 "The Master said, 'See what a man does. Mark his motives.'' 18 The popular Taouist work, called 'The Book of Secret Blessings,' inculcates the necessity

1 Cf. Montefiore, Hibbert Lectures,

P. 531.

2 Lane, Modern Egyptians, p. 293. Paley, Principles of Moral and Political Philosophy, i. 7 (Complete Works, ii, 38).

Cf. Legge, Religions of China, p.

261 sq.; Girard de Rialle, Mythologie comparée, p. 214.

5 Li Ki, ii. 1. 2. 27. Cf. Lun Yü, iii. 4. 3.

6 Li Ki, xxii. 1.

7 Ibid. xxii. 2.

8 Lun Yü, ii. 10. 1 sq.

of purifying the heart as a preparation for all right-doing.1 The religious legislator of Brahmanism, whilst assuming in accordance with the popular view that the fulfilment of religious duty will be always rewarded to some extent, whatever may be the motive, maintains that the man who fulfils his duties without regard to the rewards which follow the fulfilment, will enjoy the highest happiness in this life and eternal happiness hereafter. According to the Buddhistic Dhammapada, " if a man speaks or acts with an evil thought, pain follows him, as the wheel follows the foot of the ox that draws the carriage. . . . If a man speaks or acts with a pure thought, happiness follows him, like a shadow that never leaves him." In his description of the Buddhists of Mongolia, the Rev. James Gilmour observes:-"Mongol priests recognise the power of motive in estimating actions. . . . The attitude of the mind decides the nature of the act. He that offers a cup of cold water only, in a proper spirit, has presented a gift quite as acceptable as the most magnificent of donations." 4 With reference to the Hebrews, Mr. Montefiore says:"If it were true that the later Judaism of the law laid exclusive stress in its moral teaching upon the mere outward act and not upon the spirit-upon doing rather than being, as we might nowadays express it-we should scarcely find that constant harping upon the heart as the source and seat of good and evil. What more legal book than Chronicles? Yet it is there that we find the earnest supplication for a heart directed towards God. . . . The eudæmonistic motive is strongest in Deuteronomy; it is weakest with the Rabbis." Few sayings are quoted and applied more frequently in the Rabbinical literature than the adage which closes those tractates of the Mishna which deal with the sacrificial law :—" He that brings few offerings is as he that brings many; let his heart be directed

1 Douglas, Confucianism and Taouism, p. 272.

2 Wheeler, History of India, ii. 478. 3 Dhammapada, 1 sq..

• Gilmour, Among the Mongols, p.

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