CHAPTER XII

85Herrera,op. cit.iv. 337sq.

86Bancroft,Native Races of the Pacific States, ii. 658.

From certain passages in the Mosaic law the conclusion has been drawn that the ancient Hebrews did not consider it obligatory to inflict death upon him who had killed his neighbour in a fit of passion.87It is said that a man shall be put to death if he “come presumptuously upon his neighbour, to slay him with guile,”88or if he “hate his neighbour, and lie in wait for him, and rise up against him, and smite him mortally that he die.”89On the other hand, he shall be allowed a resort to a cityof refuge if “he lie not in wait,”90or if he thrust his neighbour “suddenly without enmity.”91

87Goitein,Das Vergeltungsprincip im biblischen und taltmudischen Strafrecht, p. 33sqq.

88Exodus, xxi. 14.

89Deuteronomy, xix. 11sq.

90Exodus, xxi. 13.

91Numbers, xxxv. 22, 25.

Professor Leist suggests that in ancient Greece, at a time when blood-revenge was a sacred duty in the case of premeditated murder, homicide committed without premeditation could be forgiven by the avenger of blood.92Plato, in his ‘Laws,’ draws a distinction between him “who treasures up his anger and avenges himself, not immediately and at the moment, but with insidious design, and after an interval,” and him “who does not treasure up his anger, and takes vengeance on the instant, and without malice prepense.” The deed of the latter, though not involuntary, “approaches to the involuntary,” and should therefore be punished less severely than the crime perpetrated by him who has stored up his anger.93Aristotle, also, whilst denying that “acts done from anger or from desire are involuntary,”94maintains that “assaults committed in anger, are rightly decided not to be of malice aforethought, for they do not originate in the volition of the man who has been angered, but rather in that of the man who so angered him.”95And he adds that “everyone will admit that he who does a disgraceful act, being at the same time free from desire, or at any rate feeling desire but slightly, is more to be blamed than is he who does such an act under the influence of a strong desire; and that he who, when not in a passion, smites his neighbour, is more to be blamed than is he who does so when in a passion.”96Cicero likewise points out that “in every species of injustice it is a very material question whether it is committed through some agitation of passion, which commonly is short-lived and temporary, or from deliberate, prepense, malice; for those things which proceed from a short, sudden fit, are of slighter moment than those which are inflicted by forethought and preparation.”97

92Leist,Græco-italische Rechtsgeschichte, pp. 325, 352.

93Plato,Leges, ix. 867.

94Aristotle,Ethica Nicomachea, iii. 1. 21.

95Ibid.v. 8. 9.

96Ibid.vii. 7. 3.

97Cicero,De officiis, i. 8.

Of ancient Russian law M. Kovalewsky observes, “L’existence d’une excitation violente est prise en considération, par notre antique législation, qui déclare le crime accompli sous leur influence non imputable.”98According to ancient Irish law, “homicide was divisible into the two classes of simple manslaughter and murder, the difference between which lay in theexistence 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.99The 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;100this opinion seems partly to be at the bottom of the distinction which they made between open and secret homicide.101According 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.102It 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;103Beaumanoir, the French jurist, who lived in the same age, mentions in his ‘Coutumes du Beauvoisis’ provocation as an extenuating circumstance,104and the same view was taken by the Church.105Coke, 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.”106Hume 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 ofchaude mellewere proved.”107All modern codes regard provocation under certain circumstances as a mitigating circumstance.108According to the criminal law of Montenegro, great provocation may even relieve a homicide of all guilt.109

98Kovalewsky,Coutume contemporaine, p. 291.

99Ancient Laws of Ireland, iii. pp. xciii. cx.

100Wilda,op. cit.p. 560sqq., 701. Stemann,op. cit.p. 574. von Amira, in Paul’sGrundriss der germanischen Philologie, ii. pt. ii. 174.

101Wilda,op. cit.p. 569. von Amira,loc. cit.p. 173.

102Das Ostfriesische Land-Recht, iii. 17sq.

103Cf.Stephen,op. cit.iii. 33.

104Beaumanoir,Coutumes du Beauvoisis, xxx. 101, vol. i. 454sq.

105Gregory III.Judicia congrua penitentibus, 3 (Labbe-Mansi,op. cit.xii. 289).

106Coke,Third Institute, p. 55.

107Hume,Commentaries on the Law of Scotland, i. 365.

108Günther,op. cit.iii. 256sqq.

109Ibid.iii. 255sq.

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 quality of his act, and thatthe clemency of the law is “a condescension to the frailty of the human frame, to thefuror brevis, which, while the frenzy lasteth, rendereth the man deaf to the voice of reason.”110But 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 received.”111

110Foster,Report of Crown Cases, p. 315.

111Stephen,Digest, art. 246, p. 188.

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.112The deed to which the patient is driven is frequently one which he abhors, as when a mother kills the child which she loves most.113In 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 medicalmen till the end of the 18th century,114when 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.”115And 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 thismanie sans déliresimply because they had not sufficient knowledge of the subject with which they had to deal.116

112Maudsley,Responsibility in Mental Disease, p. 133sqq.von Krafft-Ebing,Lehrbuch der gerichtlichen Psychopathologie, p. 308sqq.

113Gadelius,Om tvångstankar, p. 168sq.Paulhan,L’activité mentale, p. 374.

114Maudsley,op. cit.p. 141.

115Pinel,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.”

116Sir James Stephen (Digest, art. 28, p. 20sq.) thinks itpossiblethat, according to the present law of England, an act is not criminal if the person who does it is, at the time when it is done, prevented by any disease affecting his mind from controlling his own conduct, unless the absence of the power of control has been produced by his own default.

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.”117According to Caldwell, “the Hindu religionist enjoins the act alone, and affirms that motives have nothing to do with merit.”118The argument, “Obey the law because it willprofit 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.”119Speaking 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.”120Something 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”?121

117Doolittle,Social Life of the Chinese, ii. 397.

118Caldwell,Tinnevelly Shanars, p. 35.

119Cf.Montefiore,Hibbert Lectures, p. 531.

120Lane,Modern Egyptians, p. 293.

121Paley,Principles of Moral and Political Philosophy, i. 7 (Complete Works, ii. 38).

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.122He 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.”123“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.”124The virtuous man offers his sacrifices “without seeking for anything to be gained by them.”125“The Master said, ‘See what a man does. Mark his motives.’”126The popular Taouist work, called ‘The Book of Secret Blessings,’ inculcates the necessityof purifying the heart as a preparation for all right-doing.127The 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.128According 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.”129In 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.”130With 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.”131Few 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 directedheavenward.”132The same faults which Jesus chastises in the hypocritical Rabbis of his day are also chastised in the Talmud. It is said, “Before a man prays let him purify his heart,”133and, “Sin committed with a good motive is better than a precept fulfilled from a bad motive.”134Rabbi Elazar says, “No charity is rewarded but according to the degree of benevolence in it, for it is said, ‘Sow (a reward) for yourselves in giving alms as charity, you will reap according to the benevolence.’”135Nor is the doctrine which requires disinterested motives for the performance of good deeds foreign to Muhammedan moralists. “Whatever we give,” says the author of the Akhlâk-i-Jelâli, “should be given in the fulness of zeal and good-will…. We should spend it simply to please God, and not mix the act with any meaner motive, lest thereby it be rendered null and void.”136

122Cf.Legge,Religions of China, p. 261sq.; Girard de Rialle,Mythologie comparée, p. 214.

123Lî Kî, ii. 1. 2. 27.Cf.Lun Yü, iii. 4. 3.

124Lî Kî, xxii. 1.

125Ibid.xxii. 2.

126Lun Yü, ii. 10. 1sq.

127Douglas,Confucianism and Taouism, p. 272.

128Wheeler,History of India, ii. 478.

129Dhammapada, 1sq.

130Gilmour,Among the Mongols, p. 239.

131Montefiore,op. cit.pp. 483, 533.1 Chronicles, xxii. 19; xxviii. 9; xxix. 18sq.2 Chronicles, xi. 16; xv. 12; xvi. 9.

132Montefiore,op. cit.p. 484.

133Ibid.p. 174.

134Nazir, fol. 23B, quoted by Hershon,Treasures of the Talmud, p. 74.

135Succah, fol. 49B,ibid.p. 11.

136Quoted by Ameer Ali,Ethics of Islâm, p. 38sq.

THEobservation has often been made that in early moral codes the so-called negative commandments, which tell people what they ought not to do, are much more prominent than the positive commandments, which tell them what they ought to do. The main reason for this is that negative commandments spring from the disapproval or acts, whereas positive commandments spring from the disapproval of forbearances or omissions, and that the indignation of men is much more easily aroused by action than by the absence of it. A person who commits a harmful deed is a more obvious cause of pain than a person who causes harm by doing nothing, and this naturally affects the question of guilt in the eyes of the multitude. A scrutinising judge of course carefully distinguishes between willfulness and negligence, whereas, to his mind, a forbearance is morally equivalent to an act. The unreflecting judge, on the other hand, is much less concerned with the question of wilfulness than with the distinction between acting and not-acting. Even the criminal laws of civilised nations take little cognisance of forbearances and omissions;1and one reason for this is that they evoke little public indignation. Even if it be admitted that the rules of beneficence, so far as details are concerned, must be left in a great measure tothe jurisdiction of private ethics, the limits of the law on this head, as Bentham remarks, seem “to be capable of being extended a good deal farther than they seem ever to have been extended hitherto.” And he appropriately asks, “In cases where the person is in danger, why should it not be made the duty of every man to save another from mischief, when it can be done without prejudicing himself, as well as to abstain from bringing it on him?”2

1Stephen,History of the Criminal Law of England, ii. 113. Hepp,Zurechnung auf dem Gebiete des Civilrechts, p. 115 (Roman law).

2Bentham,Principles of Morals and Legislation, p. 322sq.To a certain extent, however, this has been admitted by legislators even in the Middle Ages. Frederick II.’s Sicilian Code imposed a penalty on persons who witnessed conflagrations or shipwrecks without helping the victims, and a fine of four augustales on anyone who, hearing the shrieks of an assaulted woman, did not hurry to her rescue (Constitutiones Napolitana sive Siculæ, i. 28, 22 [Lindenbrog,Codex legum antiquarum, pp. 715, 712]). Bracton says (De Legibus et Consuetudinibus Angliæ, fol. 121, vol. ii. 280sq.) that he who could rescue a man from death and did not do it, ought not to be exempt from punishment. It was a principle of the Canon law that he who does not prevent the infliction of an injury upon his neighbour when it lies in his power to do so, is to be regarded as an accomplice in the offence (Geyer,Lehre von der Nothwehr, p. 74. Gregory IX.Decretales, v. 12, 6. 2: “Qui potuit hominem liberare a morte, et non liberavit, eum occidit”).

The more scrutinising the moral consciousness, the greater the importance which it attaches to positive commandments. This is well illustrated by a comparison between Old and New Testament morality. As Professor Seeley observes,3“the old legal formula began ‘thou shalt not,’ the new begins with ‘thou shalt.’ The young man who had kept the whole law—that is, who had refrained from a number of actions—is commanded to do something, to sell his goods and feed the poor. Condemnation was passed under the Mosaic law upon him who had sinned, who had done something forbidden—the soul that sinneth shall die; Christ’s condemnation is pronounced upon those who had not done good—‘I was an hungered and ye gave me no meat.’ The sinner whom Christ habitually denounces is he who has done nothing.” This characteristic is repeatedly manifested in His parables—as in the case of the priest and Levite who passed by on the other side; in the case of Dives, of whom no ill is recorded except that a beggar lay at hisgate 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,”4is 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.”5

3Seeley,Ecce Homo, p. 176.

4Ibid.p. 179.

5Curr,Recollections of Squatting in Victoria, p. 264sq.

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.6Among the Wanyoro, should a girl die in childbirth, the seducer is also doomed to die, unless he ransom himself by payment of some cows.7Among 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.”8According 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.”9In 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 thewer.10According 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”;11and 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.’12“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.13You 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.”14In all these cases you did something that helped to bringabout death or wound, and you are consequently held responsible for the mishap.

Back to Index Next