CHAPTER VIII

192Garcilasso de la Vega,op. cit.i. 145.

193Wells Williams,op. cit.i. 393.

194Griffis,Religions of Japan, p. 92.Cf.Idem,Mikado’s Empire, p. 100.

195Cf.Livy, x. 9; Polybius, vi. 14; Gibbon,History of the Decline and Fall of the Roman Empire, v. 318, 326.

196Mackenzie,Studies in Roman Law, pp. 408, 409, 414. Gibbon,op. cit.v. 320.Cf.Mommsen,Römisches Strafrecht, p. 943.

197Cherry,Growth of Criminal Law in Ancient Communities, pp. 68, 105.

198Henke,Grundriss einer Geschichte des deutschen peinlichen Rechts, ii. 310. Abegg,Die verschiedenen Strafrechtstheorieen, p. 117. Du Boys,Histoire du droit criminel de l’Espagne, p. 323.

Of the connection between punishment and the belief in supernatural agencies many instances are found already in the savage world.199The great severity with which certaininfractions of custom are punished has obviously a superstitious origin. In Polynesia, according to Ellis, “the prohibitions and requisitions of the tabu were strictly enforced, and every breach of them punished with death, unless the delinquents had some very powerful friends who were either priests or chiefs.200Among the western tribes of Torres Straits, “death was the penalty for infringing the rules connected with the initiation periodi.e., for sacrilege.”201Among the Port Lincoln aborigines the women and children are not allowed to see any of the initiation ceremonies, and “any impertinent curiosity on their part is punishable with death, according to the ancient custom.”202Among the Masai, who believe that the boiling of milk will cause the cows to run dry, “any one caught doing so can only atone for the sin with a fearfully heavy fine, or, failing that, the insult to the holy cattle will be wiped out in his blood.”203The penalty of death which is frequently imposed on incest or other sexual offences is largely due to the influence of religious or superstitious beliefs.204And in various cases of sacrilege the offender is offered up as a sacrifice to the resentful god.205

199Steinmetz,Ethnol. Studien zur ersten Entwicklung der Strafe, ii. 340sq.The connection between punishment and religion has been emphasised by Prof. Durkheim (Division du travail social, p. 97sqq.) and M. Mauss (‘La religion et les origines du droit pénal,’ inRevue de l’histoire des religions, vols. xxxiv. and xxxv.). But Prof. Durkheim exaggerates the importance of this connection by assuming (p. 97) that “le droit pénal à l’origine était essentiellement religieux.”

200Ellis,Tour through Hawaii, p. 394.Cf.Olmsted,Incidents of a Whaling Voyage, p. 248sq.; Mauss, inop. cit.xxxv. 55.

201Haddon, ‘Ethnography of the Western Tribes of Torres Straits,’ inJour. Anthr. Inst.xix. 335.

202Schürmann, ‘Aboriginal Tribes of Port Lincoln,’ in Woods,Native Tribes of South Australia, p. 234.

203Johnston,Kilima-njaro Expedition, p. 425.

204Seeinfra, onSexual Morality.

205Seeinfra, onHuman Sacrifice.

According to Hebrew notions, it is man’s duty to avenge offences against God; every crime involves a breach of God’s law, and is punishable as such, and hardly any punishment is too severe to be inflicted on the ungodly.206These ideas were adopted by the Christian Church and by Christian governments.207The principlestated in the Laws of Cnut, that “it belongs very rightly to a Christian king that he avenge God’s anger very deeply, according as the deed may be,”208was acted upon till quite modern times, and largely contributed to the increasing severity of the penal codes. It was therefore one of the most important steps towards a more humane legislation when, in the eighteenth century, this principle was superseded by the contrary doctrine, “Il faut faire honorer la Divinité, et ne la venger jamais.”209

206Cf.Robertson Smith,Religion of the Semites, p. 162sq.

207von Eicken,Geschichte und System der mittelalterlichen Weltanschauung, p. 563sqq.Abegg,op. cit.p. 111sq.Wilda,Strafrecht der Germanen, p. 530sq.Günther,op. cit.ii. 12sqq.Henke,op. cit.ii. 310sq.Brunner,op. cit.ii. 587.

208Laws of Cnut, ii. 40.

209Montesquieu,De l’esprit des lois, xii. 4 (Œuvres, p. 282).

From the fact, then, that crimes are punished not only as wrongs against individuals, but as wrongs against the State, and, especially, as wrongs against some despotic or semi-divine lawgiver, or against the Deity, it follows that even seemingly excessive punishments may, to a large extent, be regarded as manifestations of public resentment. This emotion does not necessarily demand like for like. The law of talion presupposes equality of rights; it is not applicable to impersonal offences, nor to offences against kings or gods. And as the demands of public resentment may exceed thelex talionis, so they may on the other hand fall short of it. Moreover, though the degree of punishment on the whole more or less faithfully represents the degree of indignation aroused by any particular crime in comparison with other crimes belonging to the same penal system, we must not take the comparative severity of the criminal laws of different peoples as a safe index to the intensity of their reprobation of crime. As we have seen before, the strength of moral indignation cannot be absolutely measured by the desire to cause pain to the offender. When the emotion of resentment is sufficiently refined, the infliction of suffering is regarded as a means rather than as an end.

By all this I certainly do not mean to deny that punishment, though in the main an expression of public indignation, is also applied as a means of deterring from crime. Criminal law is preventive, its object is to forbid andto warn, and it uses punishment as a threat. But the acts which the law forbids are, as a rule, such as public opinion condemns as wrong, and it is their wrongness that in all ages has been regarded as the justification of the penalties to which they are subject. It is true that there are instances in which the law punishes acts which in themselves are not apt to evoke public resentment, and others in which the severity of the punishment does not exactly correspond with the resentment they evoke. The State may have a right to sacrifice the welfare of individuals in order to attain some desirable end. It may have a right to do so in cases where no crime has been committed, it would therefore seem to be all the more justified in doing so when the evil has been preceded by a warning. And yet, in the case of punishment, it is only within narrow limits that such a right is granted to the State. To punish a person could not simply mean that he has to suffer for the benefit of the society; there is always opprobrium connected with punishment. Hence the scope which justice leaves for determent pure and simple is not wide. Sir James Stephen observes:—“You cannot punish anything which public opinion, as expressed in the common practice of society, does not strenuously and unequivocally condemn. To try to do so is a sure way to produce gross hypocrisy and furious reaction.”210Experience shows that the fate of all disproportionately severe laws which make too liberal use of punishment as a deterrent is that they come to be little followed in practice and are finally annulled. As Gibbon says, “whenever an offence inspires less horror than the punishment awarded to it, the rigour of penal law is obliged to give way to the common feelings of mankind.”

210Stephen,Liberty, Equality, Fraternity, p. 159.Cf.Mommsen,Römisches Strafrecht, p. 91sq.

Numerous data, to be referred to in following chapters, will show how faithfully punishment reflects the emotion of resentment, and how impossible it would be to explain it from considerations of social utility without close referenceto the feeling of justice. Why, for instance, should the attempt to commit a crime, when its failure obviously depends on mere chance, be punished less severely than the accomplished crime, if not because the indignation it arouses is less intense? Would not the same amount of suffering be requisite to deter a person from attempting to murder his neighbour as to deter him from actually committing the murder? And is there any reason to suppose that the unsuccessful offender is less dangerous to society than he who succeeds? All the facts referring to criminal responsibility, as we shall see, suggest resentment, not determent, as the basis of punishment, and so does the gradation of the punishment conformably to the magnitude of the crime.211According to the principle of determent, as expressed by Anselm von Feuerbach and others, punishment should be neither more nor less severe than is necessary for the suppression of crime.212But if this rule were really acted upon, the penalties imposed, especially on minor offences, which the law has been utterly unable to suppress, would certainly be much less lenient than they actually are. Moreover, if there were no intrinsic connection between punishment and resentment, how could we explain the predilection of early law for the principle of talion—an eye for an eye, a tooth for a tooth, a life for a life—213which, as we have seen, so frequently regulates the custom of revenge?

211Cf.Durkheim,Division du travail social, p. 93sq.

212von Feuerbach,Ueber die Strafe als Sicherungsmittel vor künftigen Beleidigungen des Verbrechers, p. 83. von Gizycki,Introduction to the Study of Ethics, p. 188.

213On this subject, see Günther,op. cit.passim.

The criminal law of a society may thus, on the whole, be taken for a faithful exponent of moral sentiments prevalent in that society at large. The attempt to make law independent of morality, and to allot to it a kingdom of its own, is really, I think, only an excuse for the moral shortcomings which it reveals if scrutinised from the standpoint of a higher morality. Law does not show us the moral consciousness in its refinement. But refinementis a rare thing, and criminal law is in the main on a level with the unreflecting morality of the vulgar mind. Philosophers and theorisers on law would do better service to humanity if they tried to persuade people not only that their moral ideas require improvement, but that their laws, so far as possible, ought to come up to the improved standard, than they do by wasting their ingenuity in sophisms about the sovereignty of Law and its independence of the realm of Justice.

THEsubjects of moral judgments call for a very comprehensive investigation, which will occupy the main part of this work. As already said, we shall first discuss the general nature, and afterwards the particular branches, of those phenomena which have a tendency to evoke moral condemnation or moral praise; and in each case our investigation will be both historical and explanatory. The present chapter, however, will be neither the one nor the other. It seems desirable to examine the general nature of the subjects of moral valuation from the standpoint of the enlightened moral consciousness before dealing with the influence which their various elements have come to exercise upon moral judgments in the course of evolution. By doing this, we shall be able, from the outset, to distinguish between elements which are hardly discernible, or separable, at the lower stages of mental development, as also to fix the terminology which will be used in the future discussion.

Moral judgments are commonly said to be passed upon conduct and character. This is a convenient mode of expression, but the terms need an explanation.

Conduct has been defined sometimes as “acts adjusted to ends,”1sometimes as acts that are not only adjusted to ends, but definitely willed.2The latter definition is toonarrow for our present purpose, because, as will be seen, it excludes from the province of conduct many phenomena with reference to which moral judgments are passed. The same may be said of the former definition also, which, moreover, is unnecessarily wide, including as it does an immense number of phenomena with which moral judgments are never concerned. Though no definition of conduct could be restricted to such phenomena as actually evoke moral emotions, the term “conduct” seems, nevertheless, to suggest at least the possibility of moral valuation, and is therefore hardly applicable to such “acts adjusted to ends” as are performed by obviously irresponsible beings. It may be well first to fix the meaning of the word “act.”

1Spencer,Principles of Ethics, i. 5.

2E.g., Mackenzie,Manual of Ethics, p. 85.

According to Bentham, acts may be distinguished as external, or acts of the body, and internal, or acts of the mind. “Thus, to strike is an external or exterior act: to intend to strike, an internal or interior one.”3But this application of the word is neither popular nor convenient. The term “act” suggests something besides intention, whilst, at the same time, it suggests something besides muscular contractions. To intend to strike is no act, nor are the movements involved in an epileptic fit acts.

3Bentham,Principles of Morals and Legislation, p. 73.

An act comprises an event and its immediate mental cause. The event is generally spoken of as the outward act, but this term seems to be too narrow, since the intentional production of a mental fact—for instance, a sensation, or an idea, or an emotion like joy or sorrow or anger—may be properly styled an act. The objection will perhaps be raised that I confound acts with their consequences, and that what I call the “event” is, as Austin maintains, nothing but bodily movements. But Austin himself admits that he must often speak of “acts” when he means “acts and their consequences,” since “most of the names which seem to be names of acts, are names of acts, coupled with certain of their consequences,and it is not in our power to discard these forms of speech.”4I regard the so-called consequences of acts, in so far as they are intended, as acts by themselves, or as parts of acts.

4Austin,Lectures on Jurisprudence, i. 427, 432sq.

The very expression “outward act” implies that acts also have an inner aspect. Intention, says Butler, “is part of the action itself.”5By intention I understand a volition or determination to realise the idea of a certain event; hence there can be only one intention in one act. Certain writers distinguish between the immediate and the remote intentions of an act. Suppose that a tyrant, when his enemy jumped into the sea to escape him, saved his victim from drowning with a view to inflicting upon him more exquisite tortures. The immediate intention, it is maintained, was to save the enemy from drowning, the remote intention was to inflict upon him tortures.6But I should say that, in this case, we have to distinguish between two acts, of which the first was a means of producing the event belonging to the second, and that, when the former was accomplished, the latter was still only in preparation. A distinction has, moreover, been drawn between the direct and the indirect intention of an act:—“If a Nihilist seeks to blow up a train containing an Emperor and others, his direct intention may be simply the destruction of the Emperor, but indirectly also he intends the destruction of the others who are in the train, since he is aware that their destruction will be necessarily included along with that of the Emperor.”7In this case we have two intentions, and, so far as I can see, two acts, provided that the nihilist succeeded in carrying out his intentions, namely (1) the blowing up of the train, and (2) the killing of the emperor; the former of these acts does not even necessarily involve the latter. But I fail to see that there is any intention at all to kill otherpersons. Professor Sidgwick maintains that it would be thought absurd to say that, in such a case, the nihilist “did not intend” to kill them;8but the reason for this is simply the vagueness of language, and a confusion between a psychical fact and the moral estimate of that fact. It might be absurd to bring forward the nihilist’s non-intention as an extenuation of his crime; but it would hardly be correct to say that he intended the death of other passengers, besides that of the emperor, when he only intended the destruction of the train, though this intention involved an extreme disregard of the various consequences which were likely to follow. He knowingly exposed the passengers to great danger; but if we speak of an intention on his part to expose them to such a danger, we regard this exposure as an act by itself.

5Butler, ‘Dissertation II. Of the Nature of Virtue,’ inAnalogy of Religion, &c.p. 336.

6Mackenzie,op. cit.p. 60. The example is borrowed from Stuart Mill,Utilitarianism, p. 27 note.

7Mackenzie,op. cit.p. 61.Cf.Sidgwick,Methods of Ethics, p. 202, n. 1.

8Sidgwick,op. cit.p. 202, n. 1. On the subject of “indirect intention,”cf.also Bentham,op. cit.pp. 84, 86.

A moral judgment may refer to a mere intention, independently of its being realised or not. Moreover, the moral judgments which we pass on acts do not really relate to the event, but to the intention. In this point moralists of all schools seem to agree.9Even Stuart Mill, who drew so sharp a distinction between the morality of the act and the moral worth of the agent, admits that “the morality of the action depends entirely upon the intention.”10The event is of moral importance only in so far as it indicates a decision which is final. From the moral point of view there may be a considerable difference between a resolution to do a certain thing in a distant future and a resolution to do it immediately. However determined a person may be to commit a crime, or to perform a good deed, the idea of the immediacy of the event may, in the last moment, induce him to change his mind. “The road to hell is paved with good intentions.” External events are generally the direct causes of our moral emotions; indeed, without thedoingof harm and thedoingof good, the moral consciousness would neverhave come into existence. Hence the ineradicable tendency to pass moral judgments upon acts, even though they really relate to the final intentions involved in acts. It would be both inconvenient and useless to deviate, in this respect, from the established application of terms. And no misunderstanding can arise from such application if it be borne in mind that by an “act,” as the subject of a moral judgment, is invariably understood the eventplusthe intention which produced it, and that the very same moral judgment as is passed on acts would also, on due reflection, be recognised as valid with reference to final decisions in cases where accidental circumstances prevented the accomplishment of the act.

9Sidgwick,op. cit.p. 201.

10Stuart Mill,Utilitarianism, p. 27 note.Cf.James Mill,Fragment on Mackintosh, p. 376.

It is in their capacity of volitions that intentions are subjects of moral judgments. What is perfectly independent of the will is no proper object of moral blame or moral praise. On the other hand, any volition may have a moral value. But, so far as I can see, there are volitions which are not intentions. A person is morally accountable also for his deliberate wishes, and the reason for this is that a deliberate wish is a volition. I am aware that, by calling deliberate wishes “volitions,” I offend against the terminology generally adopted by psychologists. However, a deliberate wish is not only from a moral point of view—as being a proper subject of moral valuation—but psychologically as well, so closely akin to a decision, that there must be a common term comprising both. In the realm of conations, deliberate wishes and decisions form together a province by themselves. In contradistinction to mere conative impulses, they are expressions of a person’s character, of his will. A deliberate wish may just as well as a decision represent his “true self.” It has been argued that a person may will one thing and yet wish the opposite thing. Locke observes:—“A man whom I cannot deny, may oblige me to use persuasions to another, which, at the same time I am speaking, I may wish may not prevail upon him. In this case it is plain the will and desire run counter, I will the action thattends one way, whilst my desire tends another, and that the direct contrary way.”11Yet in this case I either do not intend to persuade the man, but only to discharge my office by speaking to him words which are apt to have a persuasive effect on him; or, if I do intend to persuade him, I do not in the same moment feel any deliberate wish to the contrary, although I may feel such a wish before or afterwards. We cannot simultaneously have an intention to do a thing and a deliberate wish not to do it.

11Locke,Essay concerning Human Understanding, ii. 21. 30 (Philosophical Works, p. 219).

If it is admitted that moral judgments are passed on acts simply in virtue of their volitional character, it seems impossible to deny that such judgments may be passed on the motives of acts as well. By “motive” I understand a conation which “moves” the will, in other words, the conative cause of a volition.12The motive itself may be, or may not be, a volition. If it is, it obviously falls within the sphere of moral valuation. The motive of an act may even be an intention, but an intention belonging to another act. When Brutus helped to kill Cæsar in order to save his country, his intention to save his country was the cause, and therefore the motive, of his intention to kill Cæsar. The fact that an intention frequently acts as a motive has led some writers to the conclusion that the motive of an act is a part of the intention. But if the intention of an act is part of the act itself, and a motive is the cause of an intention, the motive of an intention cannot be a part of that intention, since a part cannot be the cause of the whole of which it forms a part.

12“The term ‘motive,’” says Professor Stout (Groundwork of Psychology, p. 233sq.) “is ambiguous. It may refer to the various conations which come into play in the process of deliberation and tend to influence its result. Or it may refer to the conations which we mentally assign as the ground or reason of our decision when it has been fully formed.” Motive, in the former sense of the term, is not implied in what I here understand by motive. On the other hand, it should be observed that there are motives not only for decisions, but for deliberate wishes—another circumstance which shows the affinity between these two classes of mental facts.

But even motives which, being neither deliberate wishesnor intentions, consist of non-volitional conations, and, therefore, are no proper subjects of moral valuation, may nevertheless indirectly exercise much influence on moral judgments. Suppose that a person without permission gratifies his hunger with food which is not his own. The motive of his act is a non-volitional conation, an appetite, and has consequently no moral value. Yet it must be taken into account by him who judges upon the act. Other things being equal, the person in question is less guilty in proportion as his hunger is more intense. The moral judgment is modified by the pressure which the non-volitional motive exercises upon the agent’s will. The same is the case when the motive of an act is the conative element involved in an emotion. If a person commits a certain crime under the influence of anger, he is not so blamable as if he commits the same crime in cold blood. Thus, also, it is more meritorious to be kind to an enemy from a feeling of duty, than to be kind to a friend from a feeling of love. No man deserves blame or praise for the pressure of a non-volitional conation upon his will, unless, indeed, such a pressure is due to choice, or unless it might have been avoided with due foresight. But a person may deserve blame or praise for not resisting that impulse, or for allowing it to influence his will for evil or good.

It is true that moral judgments are commonly passed on acts without much regard being paid to their motives;13but the reason for this is only the superficiality of ordinary moral estimates. Moral indignation and moral approval are, in the first place, aroused by conspicuous facts, and, whilst the intention of an act is expressed in the act itself, its motive is not. But a conscientious judge cannot, like the multitude, be content with judging of the surface only. Stuart Mill, in his famous statement that “the motive has nothing to do with the morality of the action, though much with the worth of the agent,”14has drawn a distinctionbetween acts and agents which is foreign to the moral consciousness. It cannot be admitted that “he who saves a fellow creature from drowning does what is morally right, whether his motive be duty, or the hope of being paid for his trouble.” He ought, of course, to save the other person from drowning, but at the same time he ought to save him from a better motive than a wish for money. It may be that “he who betrays his friend that trusts him is guilty of a crime, even if his object be to serve another friend to whom he is under greater obligations”;15but surely his guilt would be greater if he betrayed his friend, say, in order to gain some personal advantage thereby. Intentions and motives are subjects of moral valuation not separately, but as a unity; and the reason for this is that moral judgments are really passed upon men as acting or willing, not upon acts or volitions in the abstract. It is true that our detestation of an act is not always proportionate to our moral condemnation of the agent; people do terrible things in ignorance. But our detestation of an act is, properly speaking, a moral emotion only in so far as it is directed against him who committed the act, in his capacity of a moral agent. We are struck with horror when we hear of a wolf eating a child, but we do not morally condemn the wolf.

13Cf.James Mill,Fragment on Mackintosh, p. 376; Sidgwick,op. cit.p. 364.

14Stuart Mill,Utilitarianism, p. 26.

15Ibid.p. 26.

A volition may have reference not only to the doing of a thing, but to the abstaining from doing a thing. It may form part not only of an act, but of a forbearance. A forbearance is morally equivalent to an act, and the volition involved in it is equivalent to an intention. “Sitting still, or holding one’s peace,” says Locke, “when walking or speaking are proposed, though mere forbearances, requiring as much the determination of the will, and being as often weighty in their consequences as the contrary actions, may, on that consideration, well enough pass for actions too.”16Yet it is hardly correct to call them acts. Bentham’s division of acts into acts of commissionand acts of omission or forbearance17is not to be recommended. A not-doing I do not call an act, and the purpose of not doing I do not call an intention.18But the fact remains that a forbearance involves a distinct volition, which, as such, may be the subject of moral judgment no less than the intention involved in an act.

16Locke,op. cit.ii. 21, 28 (Philosophical Works, p. 218).

17Bentham,op. cit.p. 72.

18Cf.Clark,Analysis of Criminal Liability, p. 42.

Willing not to do a thing must be distinguished from not willing to do a thing; forbearances must be distinguished from omissions. An omission—in the restricted sense of the word—is characterised by the absence of volition. It is, as Austin puts it, “the not doing a given act, without adverting (at the time) to the act which is not done.”19Now moral judgments refer not only to willing, but to not-willing as well, not only to acts and forbearances, but to omissions. It is curious that this important point has been so little noticed by writers on ethics, although it constitutes a distinct and extremely frequent element in our moral judgments. It has been argued that what is condemned in an omission is really a volition, not the absence of a volition; that an omission is bad, not because the person did not do something, but because he did something else, “or was in such a condition that he could not will, and is condemned for the acts which brought him into that condition.”20In the latter case, of course, the man cannot be condemned for his omission, since he cannot be blamed for not doing whathe “could not will”; but to say that an omission is condemned only on account of the performance of some act is undoubtedly a psychological error. If a person forgets to discharge a certain duty incumbent on him, say, to pay a debt, he is censured, not for anything he did, but for what he omitted to do. He is blamed for not doing a thing which he ought to have done, because he did not think of it; he is blamed for his forgetfulness. In other words, his guilt lies in his negligence.

19Austin,op. cit.i. 438.

20Alexander,Moral Order and Progress, p. 34sq.So, also, Professor Sidgwick maintains (op. cit.p. 60) that “the proper immediate objects of moral approval or disapproval would seem to be always the results of a man’s volitions so far as they were intended—i.e., represented in thought as certain or probable consequences of such volitions,” and that, in cases of carelessness, moral blame, strictly speaking, attaches to the agent, only “in so far as his carelessness is the result of some wilful neglect of duty.” A similar view is taken by the moral philosophy of Roman Catholicism. (Göpfert,Moraltheologie, i. 113). Binding, again, assumes (Die Normen, ii. 105sqq.) that a person may have a volition without having an idea of what he wills, and that carelessness implies a volition of this kind. Otherwise, he says, the will could not be held responsible for the result. But, as we shall see immediately, the absence of a volition may very well be attributed to a defect of the will, and the will thus be regarded as the cause of an unintended event. To speak of a volition or will to do a thing of which the person who wills it has no idea seems absurd.

Closely related to negligence is heedlessness, the difference between them being seemingly greater than it really is. Whilst the negligent man omits an act which he ought to have done, because he does not think of it, the heedless man does an act from which he ought to have forborne, because he does not consider its probable or possible consequences.21In the latter case there is acting, in the former case there is absence of acting. But in both cases the moral judgment refers to want of attention, in other words, to not-willing. The fault of the negligent man is that he does not think of the act which he ought to perform, the fault of the heedless man is that he does not think of the probable or possible consequences of the act which he performs. In rashness, again, the party adverts to the mischief which his act may cause, but, from insufficient advertence assumes that it will not ensue; the fault of the rash man is partial want of attention.22Negligence, heedlessness, and rashness, are all included under the common term “carelessness.”

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