Chapter 20

44Buchanan,North American Indians, p. 160sq.

45Kohler, inZeitschr. f. vergl. Rechtswiss.xiv. 448.

46Bamler, quoted by Kohler,ibid.xiv. 381.

47Merker, quoted by Kohler,ibid.xv. 64.

48Kohler,ibid.xv. 353.

49Lang, in Steinmetz,Rechtsverhältnisse, p. 261.

50Miss Kingsley, in her Introduction to Dennett’sNotes on the Folklore of the Fjort, p. xi.

These instances of occasional discrimination in savage justice are particularly interesting in the face of the fact that, even among peoples who have attained a higher degree of culture, innocent persons are often punished by law for bringing about events without any fault of theirs.

It is a principle of the Chinese law that “all persons who kill or wound others purely by accident, shall be permitted to redeem themselves from the punishment of killing or wounding in an affray, by the payment in each case of a fine to the family of the person deceased or wounded.”51But there are exceptions to this rule. Anyperson who kills his father, mother, paternal grandfather or grandmother, and any wife who kills her husband’s father, mother, paternal grandfather or grandmother, “purely by accident, shall still be punished with 100 blows and perpetual banishment to the distance of 3,000lee. In the case of wounding purely by accident, the persons convicted thereof shall be punished with 100 blows and three years’ banishment: in these cases, moreover, the parties shall not be permitted to redeem themselves from punishment by the payment of a fine, as usual in the ordinary cases of accident.”52Again, slaves who accidentally kill their masters, “shall suffer death, by being strangled at the usual period.”53It is also a characteristic provision of the Chinese law that an act of grace is necessary for relieving all those from punishment who have offended accidentally and inadvertently.54

51Ta Tsing Leu Lee, sec. ccxcii. p. 314.

52Ibid.sec. cccxix. p. 347.Cf.ibid.sec. ccxcii. p. 314.

53Ibid.sec. cccxiv. p. 338.

54Ibid.sec. xvi. p. 18.

It is said in the Laws of Ḫammurabi:—“If a man has struck a man in a quarrel, and has caused him a wound, that man shall swear ‘I did not strike him knowing’ and shall answer for the doctor. If he has died of his blows, he shall swear, and if he be of gentle birth he shall pay half a mina of silver. If he be the son of a poor man, he shall pay one-third of a mina of silver.”55

55Laws of Ḫammurabi, 206sqq.

It has been observed that the purpose of the Hebrew law of sanctuary was not merely to protect the involuntary manslayer from blood-revenge, but at the same time to punish him and compel him to expiate the blood he has shed.56If he left the city of refuge before the death of the high-priest, the avenger of blood might kill him without incurring blood-guiltiness; and he was not permitted to purchase an earlier return to his possession with a money ransom.57

56Goitein,Das Vergeltungsprincip im biblischen und talmudischen Strafrecht, p. 25sq.Keil,Manual of Biblical Archæology, ii. 371.

57Numbers, xxxv. 26sqq.

According to the Laws of Manu, “he who damages thegoods of another, be it intentionally or unintentionally, shall give satisfaction to the owner and pay to the king a fine equal to the damage”;58and various rites of expiation are prescribed for a person who kills a Brâhmana by accident,59whereas the intentional slaying of a Brâhmana is inexpiable.60

58Laws of Manu, viii. 288.

59Ibid.xi. 73sqq.

60Ibid.xi. 90.Gautama, xxi. 7. According to some authorities, however, the wilful slaying of a Brâhmana was expiable by a penance of greater severity (Bühler’s note, in his translation of the ‘Laws of Manu,’Sacred Books of the East, xxv. 449).

Demosthenes praises the Athenian law for making the penalty of unintentional homicide less than that of intentional. The punishment for murder was death, from which, however, before the sentence was passed, the murderer was at liberty to escape by withdrawing from his country and remaining in perpetual exile. But he who was convicted of involuntary homicide had to leave the country only for some shorter time, until he had appeased the relatives of the deceased.61As will be seen subsequently, the real object of this law was not so much to punish the involuntary manslayer, as to save him from being persecuted by the dead man’s ghost, and to rid the community of a pollution. However, the Athenian law does not represent the ideas of early times. As Dr. Farnell observes, the constitution and the legend about the foundation of the court at the Palladium, which was established to try cases of unintentional blood-shedding, shows that the ancient practice was susceptible of improvement.62Nor does the Roman law, which, in its developed shape, with such a remarkable consistency carried out the Cornelian principle, “in maleficiis voluntas spectatur non exitus,”63seem to have been equally discriminate in early times.64In the Law of the Twelve Tables there are still some faint traces left of the notion that expiation was required of a person who accidentally shed human blood.65

61Demosthenes,Contra Aristocratem, 71sq.p. 643sq.

62Aristotle,De republica Atheniensium, 57. Farnell,Cults of the Greek States, i. 304.

63Digesta, xlviii. 8. 14.

64von Jhering,Das Schuldmoment im römischen Privatrecht, p. 16. Mommsen,Römisches Strafrecht, p. 85.

65Mommsen,op. cit.p. 85.

The principle of ancient Teutonic law was, “Qui inscienter peccat, scienter emendet”—a maxim laid down by the compiler of the so-called ‘Laws of Henry I.,’66no doubt translating an old English proverb.67In historic times, the law, distinguishing betweenviliandvadhi, treats intentional homicide as worse than unintentional. In one case there can, in the other there can not, be a legitimate feud; and whilst wilful manslaughter can be expiated only bywíte, as well aswer, the involuntary manslayer has to paywerto the family of the dead, but nowíteto the authorities.68Yet thewerto be paid was not merely compensation for the loss sustained, as Wilda, misled by his enthusiasm for Teutonic law, has erroneously assumed;69it was punishment as well.70And the character of criminality attached to accidental homicide survived the system ofwer. When homicide became a capital offence, homicide by misadventure was included in the law. However, the involuntary manslayer was not executed, but recommended to the “mercy” of the prince. This was the case in England in the later Middle Ages,71and in France still more recently.72And when the English law was altered, and the involuntary offender no longer was in need of mercy, he nevertheless continued to be treated as a criminal. He was punished with forfeiture of his goods. According to the rigour of the law such a forfeiture might have been exacted even in the year 1828, when the law was finally abolished after having fallen into desuetude in the course of the previous century.73

66Leges Henrici I.xc. 11.

67Pollock and Maitland,History of the English Law before the Time of Edward I.i. 54.

68Wilda,op. cit.p. 545sqq., 594.Idem,Deutsche Rechtsgeschichte, i. 165. Pollock and Maitland,op. cit.ii. 471.

69Wilda,op. cit.p. 578.

70Geyer,Die Lehre von der Nothwehr, p. 87sq.TrummerVorträge über Tortur, &c.i. 345. Brunner,Forschungen, p. 505sq.

71Bracton,De Legibus et Consuetudinibus Angliæ, fol. 134, vol. ii. 382sq.; fol. 104 b, vol. ii, 152sq.Brunner,Forschungen, p. 494sqq.Biener,Das englische Geschwornengericht, i. 120, 392. Pollock and Maitland,op. cit.ii. 479.

72Beaumanoir,Les coutumes du Beauvoisis, 69, vol. ii. 483. Esmein,Histoire de la procédure criminelle en France, p. 255.

73Stephen,History of the Criminal Law of England, iii. 77.

If men at the earlier stages of civilisation generallyattach undue importance to the outward aspect of conduct, the same is still more the case with their gods.

The Tshi-speaking peoples of the Gold Coast believe that the god Sasabonsum “takes delight in destroying all those who have offended him, even though the offence may have been accidental and unintentional”; whereas, among the same people, it is the custom that even deaths resulting from accidents, not to speak of minor injuries, are compensated for by a sum of money.74Miss Kingsley says she is unable, from her own experience, to agree with Mr. Dennett’s statement with reference to the Fjort, that ignorance would save the man who had eaten prohibited food. From what she knows, Merolla’s story is correct: the man, though he eat in ignorance, dies or suffers severely. “It is true,” she adds, “that one of the doctrines of African human law is that the person who offends in ignorance, that is not a culpable ignorance, cannot be punished; but this merciful dictum I have never found in spirit law. Therein if you offend, you suffer; unless you can appease the enraged spirit, neither ignorance nor intoxication is a feasible plea in extenuation.”75The Omahas believe that to eat of the totem, even in ignorance, would cause sickness, not only to the eater, but also to his wife and children.76

74Ellis,Tshi-speaking Peoples of the Gold Coast, pp. 35, 301.

75Miss Kingsley, in her Introduction to Dennett’sFolklore of the Fjort, p. xxviii.

76Frazer,Totemism, p. 16.

Speaking of the sacred animals of the ancient Egyptians, Herodotus says, “Should any one kill one of these beasts, if wilfully, death is the punishment; if by accident, he pays such fine as the priests choose to impose. But whoever kills an ibis or a hawk, whether wilfully or by accident, must necessarily be put to death.”77According to the Chinese penal code, “whoever destroys or damages, whether intentionally or inadvertently, the altars, mounds, or terraces consecrated to the sacred and imperial rites, shall suffer 100 blows, and be perpetually banished to distanceof 2000lee.”78In these cases the punishment inflicted by human hands is obviously a reflection of the supposed anger of superhuman beings.

77Herodotus, ii. 65.Cf.Pomponius Mela, 9.

78Ta Tsing Leu Lee, sec. clviii. p. 172.

The Shintoist prays for forgiveness of errors which he has committed unknowingly.79According to the Vedic hymns, whoever with or without intention offends against the eternal ordinances of Varuna, the All-knowing and Sinless, arouses his anger, and is bound with the bonds of the god—with calamity, sickness, and death.80Forgiveness is besought of Varuna for sins that have been committed in unconsciousness;81even sleep occasions sin.82The singer Vasishtha is filled with pious grief, because daily against his will and without knowledge he offends the god and in ignorance violates his decree.83“All sages,” say the Laws of Manu, “prescribe a penance for a sin unintentionally committed”; such a sin “is expiated by the recitation of Vedic texts, but that which men in their folly commit intentionally, by various special penances.”84Among the present Hindus, “even in cases of accidental drinking of spirits through ignorance on the part of any of the three twice-born classes, nothing short of a repetition of the initial sacramentary rites, effecting a complete regeneration, is held sufficient to purge the sin.”85

79Selenka,Sonnige Welten, p. 210sq.

80Cf.Kaegi,Rigveda, p. 66sq.; Oldenberg,Die Religion des Veda, p. 289.

81Rig-Veda, v. 85. 8.

82Ibid.vii. 86. 6; x. 164. 3.

83Ibid.vii. 88. 6.Cf.Kaegi,op. cit.p. 68.

84Laws of Manu, xi. 45sq.Cf.Vasishtha, 20.

85Rájendralála Mitra,Indo-Aryans, i. 393.

In the Greek literature there are several instances of guilt being attached to the accidental transgression of some sacred law, the transgressor being perfectly unaware of the nature of his deed. Oedipus is the most famous example of this. Actaeon is punished for having seen Diana. Pausanias, the Spartan king, made sacrifice to Zeus Phyxius, to atone for the death of the maiden whom he had slain by misfortune.86

86Farnell,op. cit.i. 72.

The Babylonian psalmist, assuming that one of thegods is angry with him because he is suffering pain, exclaims:—“The sin which I committed I know not. The transgression I committed I know not. The affliction which was my food—I know it not. The evil which trampled me down—I know it not. The lord in the wrath of his heart has regarded me; the god in the fierceness of his heart has punished me.”87In another psalm it is said:—“He knows not his sin against the god, he knows not his transgression against the god and the goddess. Yet the god has smitten, the goddess has departed from him.”88

87Zimmern,Babylonische Busspsalmen, p. 63.

88Sayce,Hibbert Lectures on the Religion of the Ancient Babylonians, p. 505.Cf.Mürdter-Delitzsch,Geschichte Babyloniens und Assyriens, p. 38.

So, also, the Hebrew psalmist cries out, “Who can understand his errors? cleanse thou me from secret faults.”89Unintentional error, as Mr. Montefiore observes, would be as liable to incur divine punishment as the most voluntary crime, if it infringed the tolerably wide province in which the right or sanctity of Yahveh was involved.90Whilst a deliberate moral iniquity was punished under the penal law, a sin committed “through ignorance, in the holy things of the Lord,” required a sin- or trespass-offering for its expiation.91Speaking of the developed sacrificial system of the Jews, Professor Moore remarks, “The general rule in the Mishna is that any transgression the penalty of which, if wilful, would be that the offender be cut off, requires, if committed in ignorance or through inadvertence, aḥaṭṭāth[or sin-offering]; the catalogue of these transgressions ranges from incest and idolatry to eating the (internal) fat of animals and imitating the composition of the sacred incense, but does not include the commonest offences against morals.”92The Rabbis also maintained that a false oath, even if made unconsciously, involves man in sin, and is punished as such.93We meet with a similar opinion in mediæval Christianity. The principle laid down by St. Augustine,94and adopted by Canon Law,95that “ream linguam non facit, nisi mens rea,” was not always acted upon. Various penitentials condemned to penance a person who, in giving evidence, swore to the best of his belief, in case his statement afterwards proved untrue.96In other cases, also, the Church prescribed penances for mere misfortunes. If a person killed another by pure accident, he had to do penance—in ordinary cases, according to most English penitentials, for one year,97according to various continental penitentials, for five98or seven99years; whereas, according to the Penitential of Pseudo-Theodore, he who accidentally killed his father or mother was to atone his deed with a penance of fifteen years,100and he who accidentally killed his son with a penance of twelve.101The Scotists even expressly declared that the external deed has a moral value of its own, which increases the goodness or badness of the agent’s intention; and though this doctrine was opposed by Thomas Aquinas, Bonaventura, Suarez, and other leading theologians, it was nevertheless admitted by them that, according to the will of God, certain external deeds entail a certain accidental reward, the so-calledaureola.102In some cases the secular law, also, punishes misadventure on religious grounds. Thus the Salic law treated with great severity any person who accidentally put fire to a church, although it imposed no penalty on other cases ofunintentional incendiary;103and even to this day the Russian criminal law prescribes penitence for homicide by misadventure, “in order to quiet the conscience of the culprit.”104According to the Koran, he who kills a believer by mistake shall expiate his deed, not only by paying blood-money to the family of the dead (unless they remit it), but by setting free a believing slave; and as to him who cannot find the means, “let him fast for two consecutive months—a penance this from God.”105

89Psalms, xix. 12.

90Montefiore,Hibbert Lectures on the Religion of the Ancient Hebrews, p. 103.Cf.ibid.p. 515sq.

91Leviticus, iv. 22sqq.; v. 15sqq.Numbers, xv. 24sqq.

92Moore, ‘Sacrifice,’ in Cheyne and Black,Encyclopædia Biblica, iv. 4205.

93Montefiore,op. cit.p. 558.

94St. Augustine,Sermones, clxxx. 2 (Migne,Patrologiæ cursus, xxxviii. 973).

95Gratian,Decretum, ii. 22. 2. 3.

96Pœnitentiale Bedæ, v. 3 (Wasserschleben,Bussordnungen der abendländischen Kirche, p. 226).Pœnit. Egberti, vi. 3 (ibid.p. 238).Pœnit. Pseudo-Theodori, xxiv. 5 (ibid.p. 593).

97Pœnit. Theodori, i. 4. 7 (ibid.p. 188).Pœnit. Bedæ, iv. 5 (ibid.p. 225).Pœnit. Egberti, iv. 11 (ibid.p. 235). According toPœnit. Pseudo-Theodori, xxi. 2 (ibid.p. 586), the penance was to last for five years.

98Pœnit. Hubertense, 2 (ibid.p. 377).Pœnit. Merseburgense, 2 (ibid.p. 391).Pœnit. Bobiense, 4 (ibid.p. 408).Pœnit. Vindobonense, 2 (ibid.p. 418).Pœnit. Cummeani, vi. 2 (ibid.p. 478).Pœnit. XXXV. Capitulornm, 1 (ibid.p. 506).Pœnit. Vigilanum, 27 (ibid.p. 529).

99Pœnit. Parisiense, 1 (ibid.p. 412).Pœnit. Floriacense, 2 (ibid.p. 424).

100Pœnit. Pseudo-Theodori, xxi. 18 (ibid.p. 588).

101Pœnit. Pseudo-Theodori, xxi. 19 (ibid.588).

102Göpfert,Moraltheologie, i. 185.

103Lex Salica(Harold’s text), 71. Brunner,Forschungen, p. 507, n. 1.

104Foinitzki, inLe droit criminel des états européens, edited by von Liszt, p. 531.

105Koran, iv. 94.

How shall we explain all these facts? Do they faithfully represent ideas of moral responsibility? Do they indicate that, at the earlier stages of civilisation, the outward event as such, irrespectively of the will of the agent, is an object of moral blame?

Most of the statements which imply a perfect absence of discrimination between accident and intention, refer to the system of private redress. Under this system a personal injury is regarded as a matter which the injured party or his kin have to settle for themselves. It certainly does not allow them to treat the offender just as they please; as we have seen, it is more or less regulated by custom. But at the same time it makes considerable allowance for the personal feelings of the sufferer, and these feelings are apt to be neither impartial nor sufficiently discriminate. Whether, in a savage community, public opinion prescribes, or merely permits, revenge in cases of accidental injury, is a question which the ordinary observations of travellers leave unanswered. It is important to note that one of the first steps which early custom or law took towards a restriction of the blood-feud was to save the life of the involuntary manslayer. Moreover, in many cases where the system of revenge has been succeeded by punishment, the injured party may still have a voice in the matter. In Abyssinia, for instance, “a life for a life is the sentence passed upon the murderer; but, obtainingthe consent of the relatives of the deceased, he is authorised by law to purchase his pardon.”106According to ancient Swedish law, an injury could not be treated as accidental unless the injured party acknowledged it as such.107In England, even in the days of Henry III., the king could not protect the manslayer from the suit of the dead man’s kin, although he had granted him pardon on the score of misadventure.108Indeed, so recently as 1741, a royal order was made for a hanging in chains “on the petition of the relations of the deceased.”109And to this day English criminal courts, when dealing with some slight offence, mitigate the punishment “because the prosecutor does not press the case,” or even give him leave to settle the matter and withdraw the prosecution.110

106Harris,Highlands of Æthiopia, ii, p. 94.

107von Amira,Nordgermanische Obligationenrecht, i. 382.

108Three Early Assize Rolls for the County of Northumberland,sæc. XIII, p. 98.

109Amos,Ruins of Time, p. 23.

110Kenny,Outlines of Criminal Law, p. 23.

In the case of accidental homicide, deference may also have to be shown for the supposed feelings of the dead man’s ghost, which, angry and bloodless, is craving for revenge and thirsting for blood. To leave its desires ungratified would be both dangerous and unmerciful. That this has something to do with the rigid demand of life for life in the case of homicide by misadventure seems all the more likely as in some instances when the involuntary manslayer is pardoned, other blood is to be shed instead of his. Among the Yao and Wayisa, near Lake Nyassa, it is the custom “by way of propitiation to give up a slave or some relative of the criminal’s, to ‘go along with the one who was slain,’ and this seems to be invariably done when one is killed by accident, in which case the slayer may escape, the deputy taking as it were his place.”111We may assume that a similar idea underlies the ancient Roman law which provided a ram to be sacrificed in the place of the involuntary manslayer.

111Macdonald, inJour. Anthr. Inst.xii. 108.

But the dead man’s ghost not only persecutes his own family ifneglectfulof their duty, it also attacks the manslayerand cleaves to him like a miasma. The manslayer is consequently regarded as unclean, and has, both for his own sake and for the sake of the community in which he lives, to undergo some ceremony of purification in order to rid himself of the dangerous and infectious pollution. This notion will be illustrated in a followingchapter. In the present connection I merely desire to point out that the pollution is there, whether the shedding of blood was intentional or accidental. And, as will be shown, though this state of uncleanness does not intrinsically involve guilt, it easily becomes a cause of moral disapproval, whilst the ceremony of purification is apt to be looked upon in the light of punishment. We shall also find that the notion of a persecuting ghost may be replaced by the notion of an avenging god, it being a fact of common occurrence that the doings or functions of one mysterious being are transferred to another. We shall, finally, see that the infection of uncleanness is shunned by gods even more than it is shunned by men; and this largely helps to explain the attitude of religion towards unintentional and unforeseen shedding of human blood.

There are other, more general reasons for the want of discrimination often displayed by religion in regard to the accidental transgression of a religious law. When a thing istabooin the strict sense of the word, it is supposed to be charged with mysterious energy which will injure or destroy the person who eats or touches the forbidden thing, whether he does so wilfully or by mistake. As Professor Jevons correctly observes, “the action of taboo is always mechanical; contact with the tabooed object communicates the taboo infection as certainly as contact with water communicates moisture…. The intentions of the taboo-breaker have no effect upon the action of the taboo; he may touch in ignorance, or for the benefit of the person he touches, but he is tabooed as surely as if his motive were irreverent or his action hostile.”112So, also, according to primitive notions, the effect of a curse or anoath is purely mechanical; hence a person who swears falsely in ignorance exposes himself to no less danger than a person who perjures himself knowingly. As regards religious offences in the strictest sense of the term—that is, offences against some god which are supposed to arouse his resentment—it should be remembered that, just as a man who is hurt is unable to judge on the matter as coolly as does the community at large, so a god whose ordinances are transgressed is thought to be less discriminating in his anger than a disinterested human judge, and, consequently, more apt to be influenced by the external event. And where nearly every calamity is regarded as a divine punishment, a person who is suffering without knowing what sin he has committed, naturally infers that a god is punishing him for some secret fault.

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