CHAPTER IX

21The meaning of the word “negligence,” in the common use of language, is very indefinite. It often stands for heedlessness as well, or for carelessness. I use it here in the sense in which it was applied by Austin (op. cit.i. 439sq.).

22Austin,op. cit.i. 440sq.Clark,op. cit., p. 101.

Our moral judgments of blame, however, are concerned with not-willing only in so far as this not-willing is attributed to a defect of the will, not to the influence of intellectual or other circumstances for which no man can be held responsible. That power in a person which we call his “will” is regarded by us as a cause, not only ofsuch events as are intended, but of such events as we think that the person “could” have prevented by his will. And just as, in the case of volitions, the guilt of the party is affected by the pressure of non-voluntary motives, so in the case of carelessness mental facts falling outside the sphere of the will must be closely considered by the conscientious judge. But nothing is harder than to apply this rule in practice.

Equally difficult is it, in many cases, to decide whether a person’s behaviour is due to want of advertence, or is combined with a knowledge of what his behaviour implies, or of the consequences which may result from it—to decide whether it is due to carelessness, or to something worse than carelessness. For him who refrains from performing an obligatory act, though adverting to it, “negligent” is certainly too mild an epithet, and he who knows that mischief will probably result from his deed is certainly worse than heedless. Yet even in such cases the immediate object of blame may be the absence of a volition—not a want of attention, but a not-willing to do, or a not-willing to refrain from doing, an act in spite of advertence to what the act implies or to its consequences. I may abstain from performing an obligatory act though I think of it, and yet, at the same time, make no resolution not to perform it. So, too, if a man is ruining his family by his drunkenness, he may be aware that he is doing so, and yet he may do it without any volition to that effect. In these cases the moral blame refers neither to negligence or heedlessness, nor to any definite volition, but to disregard of one’s duty or of the interests of one’s family. At the same time, the transition from conscious omissions into forbearances, and the transition from not-willing to refrain from doing into willing to do, are easy and natural; hence the distinction between willing and not-willing may be of little or no significance from an ethical point of view. For this reason such consequences of an act as are foreseen as certain or probable have commonly been included under the term “intention,”23often as a special branch of intention—“oblique,” or “indirect,” or “virtual” intention;24but, as was already noticed, this terminology is hardly appropriate. I shall call such consequences of an act as are foreseen by the agent, and such incidents as are known by him to be involved in his act, “the known concomitants” of the act. When the nihilist blows up the train containing an emperor and others, with a view to killing the emperor, the extreme danger to which he exposes the others is a known concomitant of his act. So, also, in most crimes, the breach of law, as distinct from the act intended, is a known concomitant of the act, inasmuch as the criminal, though aware that his act is illegal, does not perform it for the purpose of violating the law. As Bacon said, “no man doth a wrong for the wrong’s sake, but thereby to purchase himself profit, or pleasure, or honour, or the like.”25

23Cf.Sidgwick,op. cit.p. 202.

24Bentham,op. cit.p. 84. Austin,op. cit.i. 480. Clark,op. cit.pp. 97, 100.

25Bacon, ‘Essay IV. Of Revenge’ inEssays, p. 45.Cf.Grotius,De jus belli et pacis, ii. 20. 29. 1: “Vi quisquam gratis malus est.”

Absence of volitions, like volitions themselves, give rise not only to moral blame, but to moral praise. We may, for instance, applaud a person for abstaining from doing a thing, beneficial to himself but harmful to others, which, in similar circumstances, would have proved too great a temptation to any ordinary man; and it does not necessarily lessen his merit if the opposite alternative did not even occur to his mind, and his abstinence, therefore could not possibly be ascribed to a volition. Very frequently moral praise refers to known concomitants of acts rather than to the acts themselves. The merit of saving another person’s life at the risk of losing one’s own, really lies in the fact that the knowledge of the danger did not prevent the saver from performing his act; and the merit of the charitable man really depends on the loss which he inflicts upon himself by giving his property to the needy. In these and analogous cases of self-sacrifice for a good end, the merit, strictly speaking, consists in not-willing toavoid a known concomitant of a beneficial act. But there are instances, though much less frequent, in which moral praise is bestowed on a person for not-willing to avoid a known concomitant which is itself beneficial. Thus it may on certain conditions be magnanimous of a person not to refrain from doing a thing, though he knows that his deed will benefit somebody who has injured him, and towards whom the average man in similar circumstances would display resentment.

All these various elements into which the subjects of moral judgments may be resolved, are included in the term “conduct.” By a man’s conduct in a certain case is understood a volition, or the absence of a volition in him—which is often, but not always or necessarily, expressed in an act, forbearance, or omission—viewed with reference to all such circumstances as may influence its moral character. In order to form an accurate idea of these circumstances, it is necessary to consider not only the case itself, but the man’s character, if by character is understood a person’s will regarded as a continuous entity.26The subject of a moral judgment is, strictly speaking, a person’s will conceived as the cause either of volitions or of the absence of volitions; and, since a man’s will or character is a continuity, it is necessary that any judgment passed upon him in a particular case, should take notice of his will as a whole, his character. We impute a person’s acts tohimonly in so far as we regard them as a result or manifestation of his character, as directly or indirectly due to his will. Hume observes:—“Actions are, by their very nature, temporary and perishing; and where they proceed not from somecausein the character and disposition of the person who performed them, they can neither redound to his honour, if good; nor infamy, if evil…. The person is not answerable for them; and as they proceededfrom nothing in him, that is durable and constant, and leave nothing of that nature behind them, it is impossible he can, upon their account, become the object of punishment or vengeance.”27There is thus an intimate connection between character and conduct as subjects of moral valuation. When judging of a man’s conduct in a special instance, we judge of his character, and when judging of his character, we judge of his conduct in general.

26Cf.Alexander,op. cit.p. 49: “Character is simply that of which individual pieces of conduct are the manifestation.” To the word “character” has also been given a broader meaning. According to John Grote (Treatise on the Moral Ideals, p. 442), a person’s character “is his habitual way of thinking, feeling, and acting.”

27Hume,Enquiry concerning Human Understanding, viii. 2 (Philosophical Works, iv. 80).Cf.Idem,Treatise of Human Nature, iii. 2 (ibid.ii. 191). See also Schopenhauer,Die beiden Grundprobleme der Ethik(Sämmtliche Werke, vol. vii.), pp. 123, 124, 281.

It will perhaps be remarked that moral judgments are passed not only on conduct and character, but on emotions and opinions; for instance, that resentment in many cases is deemed wrong, and love of an enemy is deemed praiseworthy, and that no punishment has been thought too severe for heretics and unbelievers. But even in such instances the object of blame or praise is really the will. The person who feels resentment is censured because his will has not given a check to that emotion, or because the hostile attitude of mind has led up to a definite volition. Very frequently the irascible impulse in resentment or the friendly impulse in kindly emotion develops into a volition to inflict an injury or to bestow a benefit on its object; and the words resentment and love themselves are often used to denote, not mere emotions, but states of mind characterised by genuine volitions. An emotion, or the absence of an emotion, may also, when viewed as a symptom, give rise to, and be the apparent subject of, a moral judgment. We are apt to blame a person whose feelings are not affected by the news of a misfortune which has befallen his friend, because we regard this as a sign of an uncharitable character. We may be mistaken, of course. The same person might have been the first to try to prevent the misfortune if it had been in his power; but we judge from average cases.

As for opinions and beliefs, it may be said that they involve responsibility in so far as they are supposed todepend on the will. Generally it is not so much the opinion itself but rather the expression, or the outward consequence, of it that calls forth moral indignation; and in any case the blame, strictly speaking, refers either to such acts, or to the cause of the opinion within the will. That a certain belief, or “unbelief,” is never as such a proper object of censure is recognised both by Catholic and Protestant theology. Thomas Aquinas points out that thesinof unbelief consists in “contrary opposition to the faith, whereby one stands out against the hearing of the faith, or even despises faith,” and that, though such unbelief itself is in the intellect, the cause of it is in the will. And he adds that in those who have heard nothing of the faith, unbelief has not the character of a sin, “but rather of a penalty, inasmuch as such ignorance of divine things is a consequence of the sin of our first parent.”28Dr. Wardlaw likewise observes:—“The Bible condemns no man for not knowing what he never heard of, or for not believing what he could not know…. Ignorance is criminal only when it arises from wilful inattention, or from aversion of heart to truth. Unbelief involves guilt, when it is the effect and manifestation of the same aversion—of a want of will to that which is right and good.”29To shut one’s eyes to truth may be a heinous wrong, but nobody is blamable for seeing nothing with his eyes shut.

28Thomas Aquinas,Summa Theologica, ii.-ii. 10. 1sq.

29Wardlaw,Sermons on Man’s Accountableness for his Belief, &c.p. 38.

After these preliminary remarks, which refer to the scrutinising and enlightened moral consciousness, we shall proceed to discuss in detail, and from an evolutionary point of view, the various elements of which the subjects of moral judgments consist.

HOWEVERobvious it may be to the reflecting moral consciousness that the only proper object of moral blame and praise is the will, it would be a hasty conclusion to assume that moral judgments always and necessarily relate to the will. There are numerous facts which tend to show that such judgments are largely influenced by external events involved in, or resulting from, the conduct of men.

Some peoples are said to make no distinction between intentional and accidental injuries. Most statements to this effect refer to revenge or compensation.

Von Martius states that, among the Arawaks, “the blood-revenge is so blind and is practised so extensively, that many times an accidental death leads to the destruction of whole families, both the family of him who killed and of the family of the victim”;1and, according to Sir E. F. Im Thurn, the smallest injury done by one Guiana Indian to another, even if unintentional, must be atoned by the suffering of a similar injury.2Adair, in his work on the North American Indians, says that they pursued the law of retaliation with such a fixed eagerness, that formerly if a little boy shooting birds in the high and thick cornfields unfortunately chanced slightly to wound another with his childish arrow, “the young vindictive fox was excited by custom to watch his ways with the utmost earnestness, till the wound was returned in as equal a manneras could be expected.”3Among the Ondonga in South Africa,4the Nissan Islanders in the Bismarck Archipelago,5and certain Marshall Islanders,6the custom of blood-revenge makes no distinction between wilful and accidental homicide. Among the Kasias “destruction of human life, whether by accident or design, in open war or secret, is always the cause of feud among the relations of the parties.”7It seems that the blood-revenge of the early Greeks was equally indiscriminate.8As for the blood-feuds of the ancient Teutons, Wilda maintains that, even in prehistoric times, it was hardly conformable to good custom to kill the involuntary manslayer;9but there is every reason to believe that custom made no protest against it. According to the myth of Balder, accident was no excuse for shedding blood. Loke gives to Hödur the mistletoe twig, and asks him to do like the rest of the gods, and show Balder honour, by shooting at him with the twig. Hödur throws the mistletoe at Balder, and kills him, not knowing its power. According to our notions, blind Hödur is perfectly innocent of his brother’s death; yet the avenger, Vali, by the usual Germanic vow, neither washes nor combs his hair till he has killed Hödur. It is also instructive to note that the narrator of this story finds himself called upon to explain, and, in a manner, to excuse the Asas for not punishing Hödur at once, the place where they were assembled being a sacred place.10We find survivals of a similar view in laws of a comparatively recent date. The earliest of the Norman customals declares quite plainly that the man who kills his lord by misadventure must die.11And, according to a passage in ‘Leges Henrici I.,’ in case A by mischance falls from a tree upon B and kills him, then, if B’s kinsman must needs have vengeance, he may climb a tree and fall upon A.12This provision has been justly represented as a curious instance of a growing appreciation of moral differences, which has not dared to abolish, but has tried to circumvent the ancient rule.13

1von Martius,Beiträge zür Ethnographie Amerika’s, i. 693sq.

2Im Thurn,Among the Indians of Guiana, p. 214.

3Adair,History of the American Indians, p. 150.

4Rautanen, in Steinmetz,Rechtsverhältnisse, p. 341.

5Sorge,ibid.p. 418.

6Kohler, inZeitschr. f. vergl. Rechtswiss.xiv. 443. See alsoIdem,Shakespeare vor dem Forum der Jurisprudenz, p. 188.

7Fisher, inJour. Asiatic Soc. Bengal, ix. 835.

8Rohde,Psyche, pp. 237, 238, 242.

9Wilda,Strafrecht der Germanen, p. 174.

10Snorri Sturluson, ‘Gylfaginning,’ 50, inEdda, p. 59.Cf.Brunner,Forschungen zur Geschichte des deutschen und französischen Rechtes, p. 489.

11Pollock and Maitland,History of English Law before the Time of Edward I.ii. 482.

12Leges Henrici I.xc. 7.

13Pollock and Maitland,op. cit.ii. 471.

Among the Kandhs “similar compensation is made in all cases both of excusable homicide and of manslaughter.”14And the same is said to be the case among various other savages or barbarians.15

14Macpherson,Memorials of Service in India, p. 82.

15Crawfurd,History of the Indian Archipelago, iii. 123. Ellis,Ew̔e-speaking Peoples of the Slave Coast, p. 223. Munzinger,Ostafrikanische Studien, p. 502 (Barea and Kunáma).

However, this want of discrimination between intentional and accidental injuries is not restricted to cases of revenge or compensation. Early punishment is sometimes equally indiscriminate.

Among the Káfirs of the Hindu-Kush, “murder, justifiable homicide, and killing by inadvertence in a quarrel, are all classed as one crime, and punished in the same way. Extenuating circumstances are never considered. The single question asked is, Did the man kill the other? The penalty is an extremely heavy blood-ransom to the family of the slain man, or perpetual exile combined with spoliation of the criminal’s property.”16Parkyns tells us the following story from Abyssinia:—A boy who had climbed a tree, happened to fall down right on the head of his little comrade standing below. The comrade died immediately, and the unlucky climber was in consequence sentenced to be killed in the same way as he had killed the other boy, that is, the dead boy’s brother should climb the tree in his turn, and tumble down on the other’s head till he killed him.17The Cameroon tribes do not recognise the circumstance of accidental death:—“He who kills another accidentally must die. Then, they say, the friends of each are equal mourners.”18Among the negroes of Accra, according to Monrad, accidental homicide is punished as severely as intentional.19

16Scott Robertson,Káfirs of the Hindu-Kush, p. 440.

17Parkyns,Life in Abyssinia, ii. 236sqq.

18Richardson, ‘Observations among the Cameroon Tribes of West Central Africa,’ inMemoirs of the International Congress of Anthropology, Chicago, p. 203. See also Leuschner, in Steinmetz,Rechtsverhältnisse, p. 24 (Bakwiri);ibid.p. 51 (Banaka and Bapuku).

19Monrad,Guinea-Kysten og dens Indbyggere, p. 88.

Yet it would obviously be a mistake to suppose that, at early stages of civilisation, people generally look only at the harm done, and not in the least at the will of him who did it. Even in the system of private redress we oftenfind a distinction made between intentional or foreseen injuries on the one hand, and unintentional and unforeseen injuries on the other. In many instances, whilst blood-revenge is taken for voluntary homicide, compensation is accepted for accidental infliction of death.20And sometimes the chief or the State interferes on behalf of the involuntary manslayer, protecting him from the persecutions of the dead man’s family.

20Cf.Kohler,Shakespeare vor dem Forum der Jurisprudenz, p. 188, n. 1.

Among the African Wapokomo intention makes a difference in the revenge.21Among 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.22Among the Namaqua Hottentots custom demands that compensation should be accepted for unintentional killing.23We meet with the same principle among the Albanians24and the Slavs,25in the past history of other European peoples,26in ancient Yucatan,27and in the religious law of Muhammedanism.28Among 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 thekharuba, orgens, of the deceased.29Among 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.”30Theancient 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.31In 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.32

21Kraft, in Steinmetz,Rechtsverhältnisse, p. 292.

22Bamler, quoted by Kohler, inZeitschr. f. vergl. Rechtswiss.xiv. 380.

23Fritsch,Die Eingeborenen Süd-Afrika’s, p. 363.

24Gopčević,Oberalbanien und seine Liga, p. 327.

25Miklosich, ‘Blutrache bei den Slaven,’ inDenkschriften der kaiserl. Akademie der Wissensch. Philos.-histor. Classe, Vienna, xxxvi. 131.

26Leist,Græco-italische Rechtsgeschichte, p. 324.Ancient Laws of Ireland, iii. p. cxxiv. For the ancient Teutons, seeinfra,p. 226.

27de Landa,Relacion de las cosas de Yucatan, p. 134.

28Koran, iv. 94.Cf.Sachau,Muhammedanisches Recht nach Schafiitischer Lehre, p. 761sq.

29Hanoteau and Letourneux,La Kabylie, iii. 68sq.

30Dorsey, ‘Omaha Sociology,' inAnn. Rep. Bur. Ethn.iii. 370.

31Deuteronomy, iv. 42.Numbers, xxxv. 11sqq.Joshua, xx. 3sqq.

32Servius,In Virgilii Bucolica, 43.Cf.von Jhering,Das Schuldmoment im römischen Privatrecht, p. 11.

Among some peoples who accept compensation even for wilful murder, the blood-price is lower if life is taken unintentionally.33

33Beverley, in Steinmetz,Rechtsverhältnisse, p. 215 (Wagogo). Dareste,Nouvelles études d’histoire du droit, p. 237 (Swanetians of the Caucasus).

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.”34Ancient 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.”35

34Bowdich,Mission from Cape Castle to Ashantee, p. 258, n. ‡.

35Cherry,Growth of Criminal Law in Ancient Communities, p. 22.

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 thefemoral artery that he dies, the man who did so would have to submit to be speared through both thighs himself.”36In New Guinea, according to Dr. Chalmers, murder is punished capitally, whereas a death caused by accident is expiated by a fine.37Among 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.”38Kafir 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.”39Among the A-lūr, 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.40The 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.”41The Eastern Central Africans, according to the Rev. D. Macdonald, “know the difference between an injury of accident and one of intention.”42And so do the natives of Nossi-Bé and Mayotte, near Madagascar.43

36Grey,Journals of Expeditions of Discovery in North-West and Western Australia, ii. 238sq.

37Chalmers,Pioneering in New Guinea, p. 179.

38Burton,Two Trips to Gorilla Land, i. 105.

39Maclean,Compendium of Kafir Laws and Customs, pp. 113, 67, 60.

40Stuhlmann,Mit Emin Pascha ins Herz von Afrika, p. 524.

41Hinde,The Last of the Masai, p. 108.

42Macdonald,Africana, i. 11.

43Walter, in Steinmetz,Rechtsverhältnisse, p. 393.

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 endeavourto 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,”44Among 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.45Among 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.”46Among 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.47The Hottentots do not nowadays punish accidents, even in the case of homicide.48Among the Washambala a person is held responsible only for such injuries as he has inflicted intentionally or caused by carelessness.49In 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.”50

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