CHAPTER XIII

6Pollock and Maitland,History of English Law before the Time of Edward I.ii. 470.

7Emin Pasha in Central Africa, p. 83.

8Decle,Three Years in Savage Africa, p. 487.

9Newbold,British Settlements in the Straits of Malacca, ii. 256sq.

10Laws of Alfred, 36.

11Leges Henrici I.xc. 11. Bracton,op. cit.fol. 141 b, vol. ii. 440sq.

12Pollock and Maitland,op. cit.ii. 470sq.

13Leges Henrici I.lxxxviii. 9.

14Ibid.xc. 11. Pollock and Maitland,op. cit.ii. 471.

But though early custom and law may be anxious enough to trace an event to its source, they easily fail to distinguish between external and internal causes, to discover where there is guilt or not, and, in case of carelessness, to determine the magnitude of the offender’s guilt. Ancient Teutonic law, as we have seen, distinguished betweenviliandvadhi. It punished the involuntary manslayer less heavily than the voluntary one, but it punished him all the same; and whether the unintended deed was combined with heedlessness or was purely accidental was a question with which the law did not at all concern itself.15According to the Laws of Ḫammurabi, “if the doctor has treated a gentleman for a severe wound with a lancet of bronze, and has caused the gentleman to die, or has opened an abscess of the eye for a gentleman with the bronze lancet and has caused the loss of the gentleman’s eye, one shall cut off his hands.”16In the Mosaic law distinction was made between presence and absence of enmity in the manslayer, but the difference between carelessness and misfortune was not considered,17except when the instrument of death was a goring ox.18However, in this, as in many other respects, great progress was made by the later legislation of the Jews. The Rabbis took considerable pains to distinguish between purely accidental homicide and homicide due to carelessness; the former they exempted from all punishment, whereas the latter incurred the punishment of confinement to a city of refuge.19They even distinguished between cases in which the death was exclusively due to the carelessness of the agent, and cases in which the deceased contributed to it by some blamable act of his own. A father or a teacherwho in punishing his son or pupil unintentionally caused his death, and a person who by order of the Sanhedrim inflicted corporal punishment on a culprit and in doing so happened by mistake to kill him—such persons were not confined in a city of refuge, but escaped punishment altogether.20Whatever else may be said of these provisions, they certainly show remarkable discernment in a point where legislators of a ruder type have been very indiscriminate. In the oldest English records we see no attempt to distinguish cases in which the dead man himself was reprehensible from others in which no fault could be imputed to him, and we find that many horses and boats bore the guilt which should have been ascribed to beer.21When a drunken carter was crushed beneath the wheel of his cart, the cart, the cask of wine which was in it, and the oxen that were drawing it, were all deodand.22According to the customary law of the Ossetes, if a stolen gun went off in the hands of the thief who was carrying it away, and killed him, the thief’s kin had a just feud against the owner of the gun.23

15Wilda,Strafrecht der Germanen, p. 578. Geyer,op. cit.p. 88. Brunner,Forschungen zur Geschichte des deutschen und französischen Rechtes, p. 499.

16Laws of Ḫammurabi, 218.

17Numbers, xxxv. 16sqq.Deuteronomy, xix. 4sqq.

18Exodus, xxi. 28-32, 35sq.Cf.Laws of Ḫammurabi, 250sqq.

19Rabbinowicz,Législation criminelle du Talmud, p. 173sqq.

20Ibid.p. 174. Benny,Criminal Code of the Jews according to the Talmud Massecheth Synhedrin, p. 115sq.

21Pollock and Maitland,op. cit.ii. 474, n. 4.

22Three Early Assize Rolls for the County of Northumberland, p. 96sq.

23Kovalewsky,Coutume contemporaine, p. 295.

Modern laws generally hold a person liable for harm caused by him through want of ordinary care and foresight, and it depends on the nature of the case whether he will have to pay damages or to suffer punishment. Yet, as we have previously noticed, his punishment is determined not only by the degree of carelessness of which he was guilty or the danger to which he exposed his fellow-men, but, largely, by the harm resulting; whereas, if nobody happens to be hurt, little notice is taken of his fault. To such an extent are men’s judgments in these matters influenced by external facts, that even nowadays many among ourselves will hold a person answerable for all the damage which directly ensues from an act of his, even though no foresight could have reasonably been expectedto look out for it.24Not long ago there were plausible, if insufficient, grounds adduced for asserting that in English courts a plea that there was neither negligence nor an intent to do harm was no answer to an action which charged the defendant with having hurt the plaintiff’s body.25And of late years attacks have been made by continental jurists upon the Roman principle that there is no liability where there is no fault26—a principle which, more or less modified, has been adopted by modern laws.27Although they take pains to point out the difference between punishment and indemnification, the very language they use indicates the quasi-ethical basis on which their theory rests. It is only just, they say, that he who has caused the evil should compensate for it, since the injured party “is still much more innocent than he.” And the “sense of justice” is appealed to for compelling a man who faints in the street and in the fall happens to break some fragile articles to indemnify the owner for his loss.28Thus, whilst loss from accident is generally allowed to lie where it falls, an exception is made where the instrument of misfortune is a human being. This is a most unreasonable exception, but one not difficult to explain. People are ready to blame a person who commits a harmful deed, whether he deserves blame or not; at the same time they are apt to overlook the indirect and more remote cause of the harm which lies in the sufferer’s own conduct. Hence the liability, if not the guilt, is laid on him who is a cause of pain bydoingsomething, even though it be by merely spasmodic contractions of his muscles; whereas the other party, who only exposed himself to the risk of being hurt, is regarded as the “more innocent.”

24Holmes,Common Law, p. 80.

25Stanleyv.Powell, inLaw Reports, Queen’s Bench Division, 1891, i. 86sqq.Pollock and Maitland,op. cit.ii. 475sq.

26von Jhering,Schuldmoment im römischen Privatrecht,passim, especially pp. 20sqq., 40sqq.Hepp,op. cit.p. 106.

27Forsman,Bidrag till läran om skadestånd i brottmål, p. 158sq.Pollock,Law of Torts, p. 129sqq.

28Thon,Rechtsnorm und subjectives Recht, p. 106, n. 71.

Whilst culpability or quasi-culpability is thus imputed to the innocent committer of a harmful deed, little or nocensure is passed on him whose want of foresight or want of self-restraint is productive of suffering, if only the effect is sufficiently remote. This is exemplified by the frivolous leniency with which drunkenness, not long ago, was looked upon in many civilised countries, and by the criminal indifference with which law and public opinion still regard the production of offspring that are almost with certainty doomed to misery on account of the vices, poverty, or bodily infirmities of the parents. To interfere here, it is argued, would be to intrude upon the individual’s right of freedom, or to meddle with the affairs of Providence. But men are not, generally, allowed to do mischief simply in order to gratify their own appetites, and Providence might equally well be called in to answer for any other kind of human shortcoming. I presume the true explanation to be, that in this, as in many other kindred cases, the cause and effect are so distant from each other that the near-sighted eye does not distinctly perceive the connection between them. Indeed, there is hardly any other point in which the moral consciousness of civilised men still stands in greater need of intellectual training than in its judgments on cases which display want of care or foresight. And there is no safer measure of the moral enlightenment of a man than the scrupulosity with which he considers the possible consequences of acts, and the number of positive commandments which are contained in his catalogue of duties.

That moral indignation and moral approval are from the very beginning felt, not with reference to certain modes of conductper se, but with reference to persons on account of their conduct, is obvious from the intrinsic nature of those emotions. As we noticed before, they derive one of their most essential characteristics from their being directed against sensitive agents. Hence they may as naturally give rise to judgments on human character as to judgments on human conduct. And even when a moral judgment immediately refers to a distinct act, it takes notice of theagent’s will as a whole. The forgiveness which follows sincere repentance, and the distinction made between injuries committed deliberately in cold blood and injuries committed in the heat of passion, indicate that men, in their moral judgments, are apt to consider something more than a momentary volition. The same tendency is at the bottom of the common practice of punishing a second and third offence more severely than the first.

Among the Masai, “if a man is convicted of a particular crime several times, or constitutes himself a public nuisance, he is proclaimed an outlaw, his property is confiscated, and he is beaten away from any settlement or village he goes near. Unless an outlaw can find friends among non-Masai tribes, he dies of starvation.”29Among the Wakamba “a murder is judged by the elders; if it is a man’s first offence of that kind he is punished by a fine…. But a man convicted for the second time of murder is killed at once, everyone setting on him the moment judgment is delivered…. For rape a first offender is flogged, and has to pay a fine of one cow; for the second offence he is killed.”30Among the Wyandots of North America, “a woman guilty of adultery, for the first offence is punished by having her hair cropped; for repeated offences her left ear is cut off.”31The laws of the Incas, also, were more lenient to a first offence than to a second;32and in the kingdom of Mechoacan, whilst the first theft was not severely punished, the thief who repeated his crime was thrown down a precipice and his carcass was left to the birds of prey.33Among the Aleuts, for the first theft “corporal punishment was inflicted; for the second offence of the kind some fingers of the right hand were cut off; for the third, the left hand and sometimes the lips were amputated; and for the fourth offence the punishment was death.” Other crimes, again, “were punished at first by reprimand by the chief before the community, and upon repetition the offender was bound and kept in such a condition for some time.”34The Kamchadales “burn the hands of people who have been frequently caught in theft, but for the first offence the thief must restore what he hath stolen, and live alonein solitude, without expecting any assistance from others.”35Among the Ainu, “for breaking into the storehouse or dwelling of another, a very sound beating was administered for the first offence; for the second, sometimes the nose was cut off, sometimes the ears, and in some cases both the nose and ears were forfeited…. Persons who had committed such a crime twice were driven bag and baggage out of the home and village to which they belonged.”36Among the Murray Islanders repetition of an offence such as murder or robbery generally incurred a penalty of death, whereas the first offence was punished only by a fine.37According to the Javanese Níti Sástra, if a man violates the law, he may for the first transgression be punished by a pecuniary fine, for the second by a punishment affecting his person, but for the third he may be punished with death.38The Penal Code of the Chinese prescribes that, for the first offence, individuals convicted of being concerned in a theft shall be branded in the lower part of the left arm with two words signifying thief, that for the second offence they shall be branded again with the same words in the lower part of the right arm, but that for the third offence they shall suffer death by being strangled, after remaining the usual period in confinement.39In Nepal, in the case of theft or petty burglary, for the first offence one hand is cut off, for the second the other hand, whilst the third offence is capital.40Herodotus mentions with approval that in ancient Persia not even the king was allowed to put any one to death for a single crime.41According to the Vendîdâd, the gravity of a crime does not depend only on the gravity of the deed, but on its frequency as well.42In ancient Rome the repetition of a crime aggravated its punishment.43According to early English law, the punishment upon a second conviction for nearly every offence was death or mutilation.44In modern European legislation, the principle that the criminality of certain crimes is increased by their repetition is generally recognised.

29Hinde,The Last of the Masai, p. 108.

30Decle,op. cit.p. 487.

31Powell, ‘Wyandot Government,’ inAnn. Rep. Bur. Ethn.i. 66.

32Herrera,General History of the West Indies, iv. 338sqq.

33Ibid.iii. 255.

34Veniaminof, quoted by Petroff, ‘Report on Alaska,’ inTenth Census of the United States, p. 152.

35Krasheninnikoff,History of Kamschatka, p. 179.

36Batchelor,Ainu and their Folk-lore, p. 285.

37Hunt, inJour. Anthr. Inst.xxviii. 6.

38Raffles,History of Java, i. 262.

39Ta Tsing Leu Lee, sec. cclxix. p. 285.

40Hodgson,Miscellaneous Essays, ii. 235.

41Herodotus, i. 137.

42Vendîdâd, iv. 17sqq.

43Mommsen,Römisches Strafrecht, p. 1044.

44Stephen,op. cit.i. 58.

The more a moral judgment is influenced by reflection, the more it scrutinises the character which manifests itselfin that individual piece of conduct by which the judgment is occasioned. But however superficial it be, it always refers to a will conceived of as a continuous entity, to a person regarded as a cause of pleasure or pain. This holds good of savage and civilised men alike. Even tame animals, in response to a hurt or a benefit, behave differently towards different persons according to their previous experience of the agent.

WEhave examined the general nature of the subjects of moral judgments from an evolutionary point of view. We have seen that such judgments are essentially passed on conduct and character, and that allowance is made for the various elements of which conduct and character are composed in proportion as the moral judgment is scrutinising and enlightened. But an important question still calls for an answer, the question, Why is this so? We cannot content ourselves with the bare fact that nothing but the will is morally good or bad. We must try to explain it.

After what has been said above the explanation is not far to seek. Moral judgments are passed on conduct and character, because such judgments spring from moral emotions; because the moral emotions are retributive emotions; because a retributive emotion is a reactive attitude of mind, either kindly or hostile, towards a living being (or something looked upon in the light of a living being), regarded as a cause of pleasure or as a cause of pain; and because a living being is regarded as a true cause of pleasure or pain only in so far as this feeling is assumed to be caused by its will. The correctness of this explanation I consider to be proved by the fact that not only moral emotions, but non-moral retributive emotions as well, are felt with reference to phenomenaexactly similar in nature to those on which moral judgments are passed.

Like moral indignation, the emotion of revenge can be felt only towards a sentient being, or towards something which is believed to be sentient. We may be angry with inanimate things for a moment, but such anger cannot last; it disappears as soon as we reflect that the thing in question is incapable of feeling pain. Even a dog which, in playing with another dog, hurts itself, for instance, by running into a tree, changes its angry attitude immediately it notices the real nature of that which caused it pain.1

1Hiram Stanley,Studies in the Evolutionary Psychology of Feeling, p. 154sq.

Equivalent to injuries resulting from inanimate things are injuries resulting accidentally from animate beings. If my arm or my foot gives a push to my neighbour, and he is convinced that the push was neither intended nor foreseen nor due to any carelessness whatever on my part, surely he cannot feel angry with me. Why not? Professor Bain answers this question as follows:—“Aware that absolute inviolability is impossible in this world, and that we are all exposed by turns to accidental injuries from our fellows, we have our minds disciplined to let unintended evil go by without satisfaction of inflicting some counter evil upon the offender.”2Perhaps another answer would be that an accidental injury in no way affects the “self-feeling” of the sufferer. But neither of these explanations goes to the root of the question. Let us once more remember that even a dog distinguishes between being stumbled over and being kicked; and this can neither be the result of discipline, nor have anything to do with the feeling of self-regarding pride.3The reason is that the dog scents an enemy in the person who kicks him, but not in the one who stumbles. My neighbour, more clearly still, makes a distinction between a part of my body and myself as avolitional being, and finds thatIam no proper object of resentment when the cause of the hurt was merely my arm or my foot. An event is attributed tomeas its cause only in proportion as it is considered to have been brought about by my will; andI, regarded as a volitional and sensitive entity, can be a proper object of resentment only as a cause of pain.

2Bain,Emotions and the Will, p. 185.

3The Koussa Kafirs, according to Lichtenstein (Travels in Southern Africa, i. 254), expect a similar discrimination from the elephant; for “if an elephant is killed … they seek to exculpate themselves towards the dead animal, by declaring to him solemnly, that the thing happened entirely by accident, not by design.”

We can hardly feel disposed to resent injuries inflicted upon us by animals, little children, or madmen, when we recognise their inability to judge of the nature of their acts. They are not the real causes of the mischief resulting from their deeds, since they neither intended nor foresaw nor could have foreseen it. “Why,” says the Stoic, “do you bear with the delirium of a sick man, or the ravings of a madman, or the impudent blows of a child? Because, of course, they evidently do not know what they are doing…. Would anyone think himself to be in his perfect mind if he were to return kicks to a mule or bites to a dog?”4Hartley observes, “As we improve in observation and experience, and in the faculty of analysing the actions of animals, we perceive that brutes and children, and even adults in certain circumstances, have little or no share in the actions referred to them.”5

4Seneca,De ira, iii. 26sq.

5Hartley,Observations on Man, i. 493.

Deliberate resentment considers the motives of acts. Suppose that a man tells us an untruth. Our feelings towards him are not the same if he did it in order to save our life as if he did it for his own benefit. Moreover, our anger abates, or ceases altogether, if we find that he who injured us acted under compulsion, or under the influence or a non-volitional impulse, too strong for any ordinary man to resist. Then, the main cause or the injury was not his will, conceived as a continuous entity. It yielded to the will of somebody else, reluctantly, as it were out of necessity, or to a powerful conation which forms no part of his real self. He was merely an instrument in another’s hands, or he was “beside himself,” “beyond himself,” “out of hismind.” When we are angry, says Montaigne, “it is passion that speaks, and not we.”6The religious psychology of the ancient Greeks ascribed acts committed upon sudden excitement of mind to theAtewhich bewilders the mind and betrays the man into deeds which, in his sober senses, he is heartily sorry for. Hence the Ate has in its train theLitae—the humble prayers of repentance, which must make good, before gods and men, whatever has been done amiss.7The Vedic singer apologises, “It is not our own will, Varuna, that leads us astray, but some seduction—wine, anger, dice, and our folly.”8In the Andaman Islands violent outbreaks of ill-temper or resentment are looked upon as the result of a temporary “possession,” and the victim is, for the time being, considered unaccountable for his actions.9Madness, as we have seen, is frequently attributed to demoniacal possession. In ancient Ireland, again, it was believed to be often brought on by malignant magical agency, usually the work of some druid, hence in the Glosses to the Senchus Mór a madman is repeatedly described as one “upon whom the magic wisp has been thrown.”10What a person does in madness is not an act committed byhim.

“Was ’t Hamlet wrong’d Laertes? Never Hamlet:If Hamlet from himself be ta’en away,And when he’s not himself does wrong Laertes,Then Hamlet does it not, Hamlet denies it.Who does it, then? His madness: if ’t be so,Hamlet is of the faction that is wrong’d;His madness is poor Hamlet’s enemy.”11

6Montaigne,Essais, ii. 31 (Œuvres, p. 396).

7Iliad, ix. 505sqq.Müller,Dissertations on the Eumenides, p. 108.

8Rig-Veda, vii. 86. 6.

9Man, inJour. Anthrop. Inst.xii. 111.

10Joyce,Social History of Ancient Ireland, i. 224.

11Shakespeare,Hamlet, v. 2.

We resent not only acts and volitions, but also omissions, though generally less severely; and when a hurt is attributed to want of foresight, our resentment is,ceteris paribus, proportionate to the degree of carelessnesswhich we lay to the offender’s charge. A person appears to us as the cause of an injury which we think he could have prevented by his will. But a hurt resulting from carelessness is not to the same extent as an intentional injury caused by the will. And the less foresight could have been expected in a given case, the smaller share has the will in the production of the event.

Our resentment is increased by a repetition of the injury, and reaches its height when we find that our adversary nourishes habitual ill-will towards us. On the other hand, as we have noticed in a previous chapter,12the injured party is not deaf to the prayer for forgiveness which springs from genuine repentance. Like moral indignation, non-moral resentment takes into consideration the character of the injurer.

12Supra,ch. iii.

Passing to the emotion of gratitude, we find a similar resemblance between the phenomena which give rise to this emotion and those which call forth moral approval. We may feel some kind of retributive affection for inanimate objects which have given us pleasure; “a man grows fond of a snuff-box, of a pen-knife, of a staff which he has long made use of, and conceives something like a real love and affection for them.”13But gratitude, involving a desire to please the benefactor, can reasonably be felt towards such objects only as are themselves capable of feeling pleasure. Moreover, on due deliberation we do not feel grateful to a person who benefits us by pure accident. Since gratitude is directed towards the assumed cause of pleasure, and since a person is regarded as a cause only in his capacity of a volitional being, gratitude presupposes that the pleasure shall be due to his will. For the same reason motives are also taken into consideration by the benefited party. As Hutcheson observes, “bounty from a donor apprehended as morally evil, or extorted by force, or conferred with some view of self-interest, will not procure real good-will; nay, it may raise indignation.”14Like moral approval, gratitude may be called forth not only by acts and volitions, but by absence of volitions, in so far as this absence is traceable to a good disposition of will. And, like the moral judge, the grateful man is, in his retributive feeling, influenced by the notion he forms of the benefactor’s character.

13Adam Smith,Theory of Moral Sentiments, p. 136.

14Hutcheson,Inquiry concerning Moral Good and Evil, p. 157.

The cognitions by which non-moral resentment and gratitude are determined are thus, as regards their general nature, precisely similar to those which determine moral indignation and approval. Whether moral or non-moral, a retributive emotion is essentially directed towards a sensitive and volitional entity, or self, conceived of as the cause of pleasure or the cause of pain. This solves a problem which necessarily baffles solution in the hands of those who fail to recognise the emotional origin of moral judgments, and which, when considered at all, has, I think, never been fully understood by those who have essayed it. It has been argued, for instance, that moral praise and blame are not applied to inanimate things and those who commit involuntary deeds, because they are administered only “where they are capable of producing some effect”;15that moral judgment is concerned with the question of compulsion, because “only when a man acts morally of his own free will is society sure of him”;16that we do not regard a lunatic as responsible, because we know that “his mind is so diseased that it is impossible by moral reprobation alone to change his character so that it maybe subsequently relied upon.”17The bestowal of moral praise or blame on such or such an object is thus attributed to utilitarian calculation;18whereas in reality it is determined by the nature of the moral emotion which lies at the bottom of the judgment. And, as Stuart Mill observes (though he never seems to have realised the full import of his objection), whilst we may administer praise and blame with the express design of influencing conduct, “no anticipation of salutary effectsfrom our feeling will ever avail to give us the feeling itself.”19

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