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Title: The origin and development of the moral ideas

Author: Edward Westermarck

Release date: May 19, 2016 [eBook #52106]

Language: English

Credits: Produced by Ed Brandon from materials provided by The Internet Archive.

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This file combines the two volumes of Westermarck’s book into one file.

You may go to Volume 1 (chapters 1 to 27),
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THE ORIGIN AND DEVELOPMENT

OF THE MORAL IDEAS

 

 

 

 

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MACMILLAN AND CO., LIMITED

LONDON . BOMBAY . CALCUTTA

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THE ORIGIN

AND DEVELOPMENT

OF THE

MORAL IDEAS

BY

EDWARD WESTERMARCK, PH.D., LL.D.

MARTIN WHITE PROFESSOR OF SOCIOLOGY IN THE UNIVERSITY OF LONDON
PROFESSOR OF MORAL PHILOSOPHY AT THE UNIVERSITY OF FINLAND, HELSlNGFORS
AUTHOR OF “THE HISTORY OF HUMAN MARRIAGE”

 

 

 

IN TWO VOLUMES

 

VOL. I

 

SECOND EDITION

 

 

 

MACMILLAN AND CO., LIMITED

ST. MARTIN’S STREET, LONDON

1924.

 

 

 

 

COPYRIGHT

First Edition 1906

Second Edition 1912

Reprinted 1924

 

 

PRINTED IN GREAT BRITAIN

 

 

 

 

PREFACE

THE frequent references made in the present work, on my own authority, to customs and ideas prevalent among the natives of Morocco, require a word of explanation. Seeing the close connection between moral opinions and magic and religious beliefs, I thought it might be useful for me to acquire first-hand knowledge of the folk-lore of some non-European people, and for various reasons I chose Morocco as my field of research. During the four years I spent there, largely among its country population, I have not only collected anthropological data, but tried to make myself familiar with the native way of thinking; and I venture to believe that this has helped me to understand various customs occurring at a stage of civilisation different from our own. I purpose before long to publish the detailed results of my studies in a special monograph on the popular religion and magics of the Moors.

For these researches I have derived much material support from the University of Helsingfors. I am also indebted to the Russian Minister at Tangier, M. B. de Bacheracht, for his kindness in helping me on several occasions when I was dependent on the Sultan’s Government. All the time I have had the valuable assistance of my Moorish friend Shereef ‘Abd-es-Salâm el-Baḳḳâli, to whom creditvi is due for the kind reception I invariably received from peasants and mountaineers, not generally noted for friendliness towards Europeans.

I beg to express my best thanks to Mr. Stephen Gwynn for revising the first thirteen chapters, and to Mr. H. C. Minchin for revising the remaining portion of the book. To their suggestions I am indebted for the improvement of many phrases and expressions. I have likewise to thank my friend Mr. Alex. F. Shand for kindly reading the proofs of the earlier chapters and giving me the benefit of his opinion.

Throughout the work the reader will easily find how much I owe to British science and thought—a debt which is greater than I can ever express.

E. W.      

LONDON,
       January, 1906.

 

PREFACE TO THE SECOND EDITION

THE present edition is only a reprint of the first, with a few inaccurate expressions corrected.

E. W.      

LONDON,
       July, 1912.

CONTENTS

 

INTRODUCTORY

The origin of the present investigation, p. 1.—Its subject-matter, p. 1 sq.—Its practical usefulness, p. 2 sq.

 

CHAPTER I

THE EMOTIONAL ORIGIN OF MORAL JUDGMENTS

The moral concepts essentially generalisations of tendencies in certain phenomena to call forth moral emotions, pp. 4–6.—The assumed universality or “objectivity” of moral judgments, p. 6 sq.—Theories according to which the moral predicates derive all their import from reason, “theoretical” or “practical,” p. 7 sq.—Our tendency to objectivise moral judgments, no sufficient ground for referring them to the province of reason, p. 8 sq.—This tendency partly due to the comparatively uniform nature of the moral consciousness, p. 9.—Differences of moral estimates resulting from circumstances of a purely intellectual character, pp. 9–11.—Differences of an emotional origin, pp. 11–13.—Quantitative, as well as qualitative, differences, p. 13.—The tendency to objectivise moral judgments partly due to the authority ascribed to moral rules, p. 14.—The origin and nature of this authority, pp. 14–17.—General moral truths non-existent, p. 17 sq.—The object of scientific ethics not to fix rules for human conduct, but to study the moral consciousness as a fact, p. 18.—The supposed dangers of ethical subjectivism, pp. 18–20.

 

CHAPTER II

THE NATURE OF THE MORAL EMOTIONS

The moral emotions of two kinds: disapproval, or indignation, and approval, p. 21.—The moral emotions retributive emotions, disapproval forming a sub-species of resentment, and approval a sub-species of retributive kindly emotion, ibid.—Resentment an aggressive attitude of mind toward a cause of pain, p. 22 sq.—Dr. Steinmetz’s suggestion that revenge is essentially rooted in the feeling of power and superiority, and originally “undirected,” pp. 23–27.—The true import of the facts adduced as evidence for this hypothesis, pp. 27–30.—The collective responsibility usually involved in the institution of the blood-feud, pp. 30–32.—Explanation of it, pp. 32–35.—viiiThe strong tendency to discrimination which characterises resentment not wholly lost even behind the veil of common responsibility, p. 35 sq.—Revenge among the lower animals, p. 37 sq.—Violation of the “self-feeling” a common incentive to resentment, p. 38 sq.—But the reaction of the wounded “self-feeling” not necessarily, in the first place, concerned with the infliction of pain, p. 39 sq.—Revenge only a link in a chain of emotional phenomena for which “non-moral resentment” may be used as a common name, p. 40.—The origin of these phenomena, pp. 40–42.—Moral indignation closely connected with anger, p. 42 sq.—Moral indignation, like non-moral resentment, a reactionary attitude of mind directed towards the cause of inflicted pain, though the reaction sometimes turns against innocent persons, pp. 43–48.—In their administration of justice gods still more indiscriminate than men, pp. 48–51.—Reasons for this, p. 51 sq.—Sin looked upon in the light of a contagious matter, charged with injurious energy, pp. 52–57.—The curse looked upon as a baneful substance injuring or destroying anybody to whom it cleaves, p. 57 sq.—The tendency of curses to spread, pp. 58–60.—Their tendency to contaminate those who derive their origin from the infected individual, p. 60 sq.—The vicarious suffering involved in sin-transference not to be confounded with vicarious expiatory sacrifice, p. 61.—Why scapegoats are sometimes killed, pp. 61–64.—Why sacrificial victims are sometimes used as scapegoats, p. 64 sq.—Vicarious expiatory sacrifices, pp. 65–67.—The victim accepted as a substitute on the principle of social solidarity, p. 67 sq.—Expiatory sacrifices offered as ransoms, p. 68 sq.—Protests of the moral consciousness against the infliction of penal suffering upon the guiltless, pp. 70–72.

 

CHAPTER III

THE NATURE OF THE MORAL EMOTIONS (continued)

Whilst, in the course of mental evolution, the true direction of the hostile reaction involved in moral disapproval has become more apparent, its aggressive character has become more disguised, p. 73.—Kindness to enemies not a rule in early ethics, p. 73 sq.—At the higher stages of moral development retaliation condemned and forgiveness of enemies laid down as a duty, pp. 74–77.—The rule of retaliation and the rule of forgiveness not radically opposed to each other, p. 77 sq.—Why enlightened and sympathetic minds disapprove of resentment and retaliation springing from personal motives, p. 78 sq.—The aggressive character of moral disapproval has also become more disguised by the different way in which the aggressiveness displays itself, p. 79.—Retributive punishment condemned, and the end of punishment considered to be either to deter from crime, or to reform the criminal, or to repress crime by eliminating or secluding him, pp. 79–81.—Objections to these theories, p. 82 sq.—Facts which, to some extent, fill up the gap between the theory of retribution and the utilitarian theories of punishment, pp. 84–91.—The aggressive element in moral disapproval has undergone a change which tends to conceal its true nature by narrowing the channel in which it discharges itself, deliberate and discriminating resentment being apt to turn against the will rather than against the willer, p. 91 sq.—Yet it is the instinctive desire to inflict counter-pain that gives to moral indignation its most important characteristic, p. 92 sq.—Retributive kindly emotion a friendly attitude of mind towards a cause of pleasure, p. 93 sq.—Retributive kindly emotion among the lower animals, p. 94.—Its intrinsic object, p. 94 sq.—The want of discrimination which is sometimes found in retributive kindness, p. 95.—Moral approval a kind of retributive kindly emotion, ibid.—Moral approval sometimes bestows its favours upon undeserving individuals for the merits of others, pp. 95–97.—Explanation of this, p. 97 sq.—Protests against the notion of vicarious merit, p. 98 sq.

 

ix CHAPTER IV

THE NATURE OF THE MORAL EMOTIONS (concluded)

Refutation of the opinion that moral emotions only arise in consequence of moral judgments, p. 100 sq.—However, moral judgments, being definite expressions of moral emotions, help us to discover the true nature of these emotions, p. 101.—Disinterestedness and apparent impartiality characteristics by which moral indignation and approval are distinguished from other, non-moral, kinds of resentment or retributive kindly emotion, pp. 101–104.—Besides, a moral emotion has a certain flavour of generality, p. 104 sq.—The analysis of the moral emotions which has been attempted in this and the two preceding chapters holds true not only of such emotions as we feel on account of the conduct of others, but of such emotions as we feel on account of our own conduct as well, pp. 105–107.

 

CHAPTER V

THE ORIGIN OF THE MORAL EMOTIONS

We may feel disinterested resentment, or disinterested retributive kindly emotion, on account of an injury inflicted, or a benefit conferred, upon another person with whose pain, or pleasure, we sympathise, and in whose welfare we take a kindly interest, p. 108.—Sympathetic feelings based on association, p. 109 sq.—Only when aided by the altruistic sentiment sympathy induces us to take a kindly interest in the feelings of our neighbours, and tends to produce disinterested retributive emotions, p. 110 sq.—Sympathetic resentment to be found in all animal species which possess altruistic sentiments, p. 111 sq.—Sympathetic resentment among savages, p. 113 sq.—Sympathetic resentment may not only be a reaction against sympathetic pain, but may be directly produced by the cognition of the signs of anger (punishment, language, &c.), pp. 114–116.—Disinterested antipathies, p. 116 sq.—Sympathy springing from an altruistic sentiment may also produce disinterested kindly emotion, p. 117.—Disinterested likings, ibid.—Why disinterestedness, apparent impartiality, and the flavour of generality have become characteristics by which so-called moral emotions are distinguished from other retributive emotions, p. 117 sq.—Custom not only a public habit, but a rule of conduct, p. 118.—Custom conceived of as a moral rule, p. 118 sq.—In early society customs the only moral rules ever thought of, p. 119.—The characteristics of moral indignation to be sought for in its connection with custom, p. 120.—Custom characterised by generality, disinterestedness, and apparent impartiality, p. 120 sq.—Public indignation lies at the bottom of custom as a moral rule, p. 121 sq.—As public indignation is the prototype of moral disapproval, so public approval is the prototype of moral approval, p. 122.—Moral disapproval and approval have not always remained inseparably connected with the feelings of any special society, p. 122 sq.—Yet they remain to the last public emotions if not in reality, then as an ideal, p. 123.—Refutation of the opinion that the original form of the moral consciousness has been the individual’s own conscience, p. 123 sq.—The antiquity of moral resentment, p. 124.—The supposition that remorse is unknown among the lower races contradicted by facts, p. 124 sq.—Criticism of Lord Avebury’s statement that modern savages seem to be almost entirely wanting in moral feeling, pp. 125–129.—The antiquity of moral approval, p. 129 sq.

 

x

CHAPTER VI

ANALYSIS OF THE PRINCIPAL MORAL CONCEPTS

Our analysis to be concerned with moral concepts formed by the civilised mind, p. 131.—Moral concepts among the lower races, pp. 131–133.—Language a rough generaliser, p. 133.—Analysis of the concepts bad, vice, and wrong, p. 134.—Of ought and duty, pp. 134–137.—Of right, as an adjective, pp. 137–139.—Of right, as a substantive, p. 139 sq.—Of the relations between rights and duties, p. 140 sq.—Of injustice and justice, pp. 141–145.—Of good, pp. 145–147.—Of virtue, pp. 147–149.—Of the relation between virtue and duty, p. 149 sq.—Of merit, p. 150 sq.—Of the relation between merit and duty, p. 151 sq.—The question of the super-obligatory, pp. 152–154.—The question of the morally indifferent, pp. 154–157.

 

CHAPTER VII

CUSTOMS AND LAWS AS EXPRESSIONS OF MORAL IDEAS

How we can get an insight into the moral ideas of mankind at large, p. 158.—The close connection between the habitualness and the obligatoriness of custom, p. 159.—Though every public habit is not a custom, involving an obligation, men’s standard of morality is not independent of their practice, p. 159 sq.—The study of moral ideas to a large extent a study of customs, p. 160.—But custom never covers the whole field of morality, and the uncovered space grows larger in proportion as the moral consciousness develops, p. 160 sq.—At the lower stages of civilisation custom the sole rule for conduct, p. 161.—Even kings described as autocrats tied by custom, p. 162.—In competition with law custom frequently carries the day, p. 163 sq.—Custom stronger than law and religion combined, p. 164.—The laws themselves command obedience more as customs than as laws, ibid.—Many laws were customs before they became laws, p. 165.—The transformation of customs into laws, p. 165 sq.—Laws as expressions of moral ideas, pp. 166–168.—Punishment and indemnification, p. 168 sq.—Definition of punishment, p. 169 sq.—Savage punishments inflicted upon the culprit by the community at large, pp. 170–173.—By some person or persons invested with judicial authority, pp. 173–175.—The development of judicial organisation out of a previous system of lynch-law, p. 175.—Out of a previous system of private revenge, p. 176.—Public indignation displays itself not only in punishment, but to a certain extent in the custom of revenge, p. 176 sq.—The social origin of the lex talionis, pp. 177–180.—The transition from revenge to punishment, and the establishment of a central judicial and executive authority, pp. 180–183.—The jurisdiction of chiefs, p. 183 sq.—The injured party or the accuser acting as executioner, but not as judge, p. 184 sq.—The existence of punishment and judicial organisation among a certain people no exact index to its general state of culture, p. 185.—The supposition that punishment has been intended to act as a deterrent, p. 185 sq.—Among various semi-civilised and civilised peoples the criminal law has assumed a severity which far surpasses the rigour of the lex talionis, pp. 186–183.—Wanton cruelty not a general characteristic of the public justice of savages, pp. 188–190. Legislators referring to the deterrent effects of punishment, p. 190 sq.—The practice of punishing criminals in public, p. 191 sq.—The punishment actually inflicted on the criminal in many cases much less severe than the punishment with which the law threatens him, p. 192 sq.—The detection of criminals was in earlier times much rarer and more uncertain than it is now, p. 193.—The chief explanation of the great severity of certain xicriminal codes lies in their connection with despotism or religion or both, pp. 193–198.—Punishment may also be applied as a means of deterring from crime, p. 198 sq.—But the scope which justice leaves for determent pure and simple is not wide, p. 199.—The criminal law of a community on the whole a faithful exponent of moral sentiments prevalent in that community at large, pp. 199–201.

 

CHAPTER VIII

THE GENERAL NATURE OF THE SUBJECTS OF ENLIGHTENED MORAL JUDGMENTS

Definitions of the term “conduct,” p. 202 sq.—The meaning of the word “act,” p. 203 sq.—The meaning of the word “intention,” p. 204.—There can be only one intention in one act, p. 204 sq. The moral judgments which we pass on acts do not really relate to the event, but to the intention, p. 205 sq.—A person morally accountable also for his deliberate wishes, p. 206.—A deliberate wish is a volition, p. 206 sq.—The meaning of the word “motive,” p. 207.—Motives which are volitions fall within the sphere of moral valuation, ibid.—The motive of an act may be an intention, but an intention belonging to another act, ibid.—Even motives which consist of non-volitional conations may indirectly exercise much influence on moral judgments, p. 207 sq.—Refutation of Mill’s statement that “the motive has nothing to do with the morality of the action,” p. 208 sq.—Moral judgments really passed upon men as acting or willing, not upon acts or volitions in the abstract, p. 209.—Forbearances morally equivalent to acts, p. 209 sq.—Distinction between forbearances and omissions, p. 210.—Moral judgments refer not only to willing, but to not-willing as well, not only to acts and forbearances, but to omissions, p. 210 sq.—Negligence, heedlessness, and rashness, p. 211.—Moral judgments of blame concerned with not-willing only in so far as this not-willing is attributed to a defect of the “will,” p. 211 sq.—Distinction between conscious omissions and forbearances, and between not-willing to refrain from doing and willing to do, p. 212.—The “known concomitants of acts,” p. 213.—Absence of volitions also gives rise to moral praise, p. 213 sq.—The meaning of the term “conduct,” p. 214.—The subject of a moral judgment is, strictly speaking, a person’s will, or character, conceived as the cause either of volitions or of the absence of volitions, p. 214 sq.—Moral judgments that are passed on emotions or opinions really refer to the will, p. 215 sq.

 

CHAPTER IX

THE WILL AS THE SUBJECT OF MORAL JUDGMENT AND THE INFLUENCE OF EXTERNAL EVENTS

Cases in which no distinction is made between intentional and accidental injuries, pp. 217–219.—Yet even in the system of self-redress intentional or foreseen injuries often distinguished from unintentional and unforeseen injuries, pp. 219–221.—A similar distinction made in the punishments inflicted by many savages, p. 221 sq.—Uncivilised peoples who entirely excuse, or do not punish, persons for injuries which they have inflicted by mere accident, p. 222 sq.—Peoples of a higher culture who punish persons for bringing about events without any fault of theirs, pp. 223–226.—At the earlier stages of civilisation gods, in particular, attach undue importance to the outward aspect of conduct, pp. 226–231.—Explanation of all these facts, pp. 231–237.—The great influence which the outward event exercises upon moral estimates even among ourselves, pp. 238–240.—Carelessness generally not punished if no injurious result follows, p. 241.—An unsuccessful attempt to commit a criminal act, if punished at all, as a rule punished much less xiiseverely than the accomplished act, p. 241 sq.—Exceptions to this rule, p. 242.—The question, which attempts should be punished, p. 243.—The stage at which an attempt begins to be criminal, and the distinction between attempts and acts of preparation, p. 243 sq.—The rule that an outward event is requisite for the infliction of punishment, p. 244 sq.—Exceptions to this rule, p. 245.—Explanation of laws referring to unsuccessful attempts, pp. 245–247.—Moral approval influenced by external events, p. 247.—Owing to its very nature, the moral consciousness, when sufficiently influenced by thought, regards the will as the only proper object of moral disapproval or praise, p. 247 sq.

 

CHAPTER X

AGENTS UNDER INTELLECTUAL DISABILITY

An agent not responsible for anything which he could not be aware of, p. 249.—The irresponsibility of animals, pp. 249–251.—Resentment towards an animal which has caused some injury, p. 251.—At the lower stages of civilisation animals deliberately treated as responsible beings, ibid.—The custom of blood-revenge extended to the animal world, pp. 251–253.—Animals exposed to regular punishment, pp. 253–255.—The origin of the mediæval practice of punishing animals, p. 255 sq.—Explanation of the practice of retaliating upon animals, pp. 256–260.—At the earlier stages of civilisation even inanimate things treated as if they were responsible agents, pp. 260–262.—Explanation of this, pp. 262–264.—The total or partial irresponsibility of childhood and early youth, pp. 264–267.—According to early custom, children sometimes subject to the rule of retaliation, p. 267.—Parents responsible for the deeds of their children, p. 267 sq.—In Europe there has been a tendency to raise the age at which full legal responsibility commences, p. 268 sq.—The irresponsibility of idiots and madmen, p. 269 sq.—Idiots and insane persons objects of religious reverence, p. 270 sq.—Lunatics treated with great severity or punished for their deeds, pp. 271–274.—Explanation of this, p. 274 sq.—The ignorance of which lunatics have been victims in the hands of lawyers, pp. 275–277.—The total or partial irresponsibility of intoxicated persons, p. 277 sq.—Drunkenness recognised as a ground of extenuation, pp. 278–280.—Not recognised as a ground of extenuation, p. 280 sq.—Explanation of these facts, p. 281 sq.

 

CHAPTER XI

MOTIVES

Motives considered only in proportion as the moral judgment is influenced by reflection, p. 283.—Little consideration for the sense of duty as a motive, ibid.—Somewhat greater discrimination shown in regard to motives consisting of powerful non-volitional conations, p. 283 sq.—Compulsion as a ground of extenuation, p. 284 sq.—“Compulsion by necessity,” pp. 285–287.—Self-defence, pp. 288–290.—Self-redress in the case of adultery, and other survivals of the old system of self-redress, pp. 290–294.—The moral distinction made between an injury which a person inflicts deliberately, in cold blood, and one which he inflicts in the heat of the moment, on provocation, pp. 294–297.—Explanation of this distinction, p. 297 sq.—The pressure of a non-volitional motive on the will as a ground of extenuation, p. 298 sq.—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, pp. 299–302.

 

xiiiCHAPTER XII

FORBEARANCES AND CARELESSNESS— CHARACTER

Why in early moral codes the so-called negative commandments are much more prominent than the positive commandments, p. 303.—The little cognisance which the criminal laws of civilised nations take of forbearances and omissions, p. 303 sq.—The more scrutinising the moral consciousness, the greater the importance which it attaches to positive commandments, p. 304 sq.—Yet the customs of all nations contain not only prohibitions, but positive injunctions as well, p. 305.—The unreflecting mind apt to exaggerate the guilt of a person who out of heedlessness or rashness causes harm by a positive act, ibid.—Early custom and law may be anxious enough to trace an event to its source, pp. 305–307.—But they easily fail to discover where there is guilt or not, and, in case of carelessness, to determine the magnitude of the offender’s guilt, p. 307 sq.—The opinion that a person is answerable for all the damage which directly ensues from an act of his, even though no foresight could have reasonably been expected to look out for it, p. 308 sq.—On the other hand, little or no censure passed on him whose want of foresight or want of self-restraint is productive of suffering, if only the effect is sufficiently remote, p. 309 sq.—The moral emotions may as naturally give rise to judgments on human character as to judgments on human conduct, p. 310.—Even when a moral judgment immediately refers to a distinct act, it takes notice of the agent’s will as a whole, p. 310 sq.—The practice of punishing a second or third offence more severely than the first, p. 311 sq.—The more a moral judgment is influenced by reflection, the more it scrutinises the character which manifests itself in that individual piece of conduct by which the judgment is occasioned, p. 312 sq.—But however superficial it be, it always refers to a will conceived of as a continuous entity, p. 313.

 

CHAPTER XIII

WHY MORAL JUDGMENTS ARE PASSED ON CONDUCT AND CHARACTER—MORAL VALUATION AND FREE-WILL

Explanation of the fact that moral judgments are passed on conduct and character, p. 314.—The correctness of this explanation proved by the circumstance that not only moral emotions, but non-moral retributive emotions as well, are felt with reference to phenomena exactly similar in nature to those on which moral judgments are passed, pp. 314–319.—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, p. 319.—The futility of other attempts to solve the problem, p. 319 sq.—The nature of the moral emotions also gives us the key to the problem of the co-existence of moral responsibility with the general law of cause and effect, p. 320.—The theory according to which responsibility, in the ordinary sense of the term, and moral judgments generally, are inconsistent with the notion that the human will is determined by causes, p. 320 sq.—Yet, as a matter of fact, moral indignation and moral approval are felt by determinists and libertarians alike, p. 321 sq.—Explanation of the fallacy which lies at the bottom of the conception that moral valuation is inconsistent with determinism, p. 322.—Causation confounded with compulsion, pp. 322–324.—The difference between fatalism and determinism, pp. 324–326.—The moral emotions not concerned with the origin of the innate character, p. 326.

 

xivCHAPTER XIV

PRELIMINARY REMARKS—HOMICIDE IN GENERAL

Necessity of restricting the investigation to the more important modes of conduct with which the moral consciousness is concerned, p. 327 sq.—The six groups into which these modes of conduct may be divided, p. 328.—The most sacred duty which we owe to our fellow-creatures generally considered to be regard for their lives, ibid.—Among various uncivilised peoples human life said to be held very cheap, p. 328 sq.—Among others homicide or murder said to be hardly known, p. 329 sq.—In other instances homicide expressly said to be regarded as wrong, p. 330 sq.—In every society custom prohibits homicide within a certain circle of men, p. 331.—Savages distinguish between an act of homicide committed within their own community and one where the victim is a stranger, pp. 331–333.—In various instances, however, the rule, “Thou shalt not kill,” applies even to foreigners, p. 333 sq.—Some uncivilised peoples said to have no wars, p. 334.—Savages’ recognition of intertribal rights in times of peace obvious from certain customs connected with their wars, p. 334 sq.—Savage custom does not always allow indiscriminate slaughter even in warfare, p. 335 sq.—The readiness with which savages engage in war, p. 337.—The old distinction between injuries committed against compatriots and harm done to foreigners remains among peoples more advanced in culture, p. 337 sq.—The readiness with which such peoples wage war on foreign nations, and the estimation in which the successful warrior is held, pp. 338–340.—The life of a guest sacred, p. 340.—The commencement of international hostilities preceded by special ceremonies, ibid.—Warfare in some cases condemned, or a distinction made between just and unjust war, pp. 340–342.—Even in war the killing of an enemy under certain circumstances prohibited, either by custom or by enlightened moral opinion, pp. 342–344.

 

CHAPTER XV

HOMICIDE IN GENERAL (continued)

Homicide of any kind condemned by the early Christians, p. 345.—Their total condemnation of warfare, p. 345 sq.—This attitude towards war was soon given up, pp. 346–348.—The feeling that a soldier scarcely could make a good Christian, p. 348.—Penance prescribed for those who had shed blood in war, p. 348 sq.—Wars forbidden by popes, p. 349.—The military Christianity of the Crusades, pp. 348–352.—Chivalry, pp. 352–354.—The intimate connection between chivalry and religion displayed in tournaments, p. 354 sq.—The practice of private war, p. 355 sq.—The attitude of the Church towards private war, p. 356.—The Truce of God, p. 357.—The main cause of the abolition of private war was the increase of the authority of emperors or kings, p. 357 sq.—War looked upon as a judgment of God, p. 358.—The attitude adopted by the great Christian congregations towards war one of sympathetic approval, pp. 359–362.—Religious protests against war, pp. 362–365.—Freethinkers’ opposition to war, pp. 365–367.—The idea of a perpetual peace, p. 367.—The awakening spirit of nationalism, and the glorification of war, p. 367 sq.—Arguments against arbitration, p. 368.—The opposition against war rapidly increasing, p. 368 sq.—The prohibition of needless destruction in war, p. 369 sq.—The survival, in modern civilisation, of the old feeling that the life of a foreigner is not equally sacred with that of a countryman, p. 370.—The behaviour of European colonists towards coloured races, p. 370 sq.

 

xvCHAPTER XVI

HOMICIDE IN GENERAL (concluded)

Sympathetic resentment felt on account of the injury suffered by the victim a potent cause of the condemnation of homicide, p. 372 sq.—No such resentment felt if the victim is a member of another group, p. 373.—Why extra-tribal homicide is approved of, ibid.—Superstition an encouragement to extra-tribal homicide, ibid.—The expansion of the altruistic sentiment largely explains why the prohibition of homicide has come to embrace more and more comprehensive circles of men, ibid.—Homicide viewed as an injury inflicted upon the survivors, p. 373 sq.—Conceived as a breach of the “King’s peace,” p. 374.—Stigmatised as a disturbance of public tranquillity and an outrage on public safety, ibid.—Homicide disapproved of because the manslayer gives trouble to his own people, p. 374 sq.—The idea that a manslayer is unclean, pp. 375–377.—The influence which this idea has exercised on the moral judgment of homicide, p. 377.—The disapproval of the deed easily enhanced by the spiritual danger attending on it, as also by the inconvenient restrictions laid on the tabooed manslayer and the ceremonies of purification to which he is subject, p. 377 sq.—The notion of a persecuting ghost may be replaced by the notion of an avenging god, pp. 378–380.—The defilement resulting from homicide particularly shunned by gods, p. 380 sq.—Priests forbidden to shed human blood, p. 381 sq.—Reasons for Christianity’s high regard for human life, p. 382.

 

CHAPTER XVII

THE KILLING OF PARENTS, SICK PERSONS, CHILDREN—FETICIDE

Parricide the most aggravated form of murder, pp. 383–386.—The custom of abandoning or killing parents who are worn out with age or disease, p. 386 sq.—Its causes, pp. 387–390.—The custom of abandoning or killing persons suffering from some illness, p. 391 sq.—Its causes, p. 392 sq.—The father’s power of life and death over his children, p. 393 sq.—Infanticide among many savage races permitted or even enjoined by custom, pp. 394–398.—The causes of infanticide, and how it has grown into a regular custom, pp. 398–402.—Among many savages infanticide said to be unheard of or almost so, p. 402 sq.—The custom of infanticide not a survival of earliest savagery, but seems to have grown up under specific conditions in later stages of development, p. 403.—Savages who disapprove of infanticide, p. 403 sq.—The custom of infanticide in most cases requires that the child should be killed immediately or soon after its birth, p. 404 sq.—Infanticide among semi-civilised or civilised races, pp. 405–411.—The practice of exposing new-born infants vehemently denounced by the early Fathers of the Church, p. 411.—Christian horror of infanticide, p. 411 sq.—The punishment of infanticide in Christian countries, p. 412 sq.—Feticide among savages, p. 413 sq.—Among more civilised nations, p. 414 sq.—According to Christian views, a form of murder, p. 415 sq.—Distinctions between an embryo informatus and an embryo formatus, p. 416 sq.—Modern legislation and opinion concerning feticide, p. 417.

 

CHAPTER XVIII

THE KILLING OF WOMEN, AND OF SLAVES—THE CRIMINALITY OF HOMICIDE INFLUENCED BY DISTINCTIONS OF CLASS

The husband’s power of life and death over his wife among many of the lower races, p. 418 sq.—The right of punishing his wife capitally not universally xvigranted to the husband in uncivilised communities, p. 419.—The husband’s power of life and death among peoples of a higher type, ibid.—Uxoricide punished less severely than matricide, p. 419 sq.—The estimate of a woman’s life sometimes lower than that of a man’s, sometimes equal to it, sometimes higher, p. 420 sq.—The master’s power of life and death over his slave, p. 421 sq.—The right, among many savages, of killing his slave at his own discretion expressly denied to the master, p. 422 sq.—The murder of another person’s slave largely regarded as an offence against the property of the owner, but not exclusively looked upon in this light, p. 423.—When the system of blood-money prevails, the price paid for the life of a slave less than that paid for the life of a freeman, ibid.—Among the nations of archaic culture, also, the life of a slave held in less estimation than that of a freeman, but not even the master in all circumstances allowed to put his slave to death, pp. 423–426.—Efforts of the Christian Church to secure the life of the slave against the violence of the master, p. 426.—But neither the ecclesiastical nor the secular legislation gave him the same protection as was bestowed upon the free member of the Church and State, pp. 426–428.—In modern times, in Christian countries, the life of the negro slave was only inadequately protected by law, p. 428 sq.—Why the life of a slave is held in so little regard, p. 429.—The killing of a freeman by a slave, especially if the victim be his owner, commonly punished more severely than if the same act were done by a free person, p. 429 sq.—In the estimate of life a distinction also made between different classes of freemen, p. 430 sq.—The magnitude of the crime may depend not only on the rank of the victim, but on the rank of the manslayer as well, pp. 431–433.—Explanation of this influence of class, p. 433.—In progressive societies each member of the society at last admitted to be born with an equal claim to the right to live, ibid.

 

CHAPTER XIX

HUMAN SACRIFICE

The prevalence of human sacrifice, pp. 434–436.—This practice much more frequently found among barbarians and semi-civilised peoples than among genuine savages, p. 436 sq.—Among some peoples it has been noticed to become increasingly prevalent in the course of time, p. 437.—Human sacrifice partly due to the idea that gods have an appetite for human flesh or blood, p. 437 sq.—Sometimes connected with the idea that gods require attendants, p. 438.—Moreover, an angry god may be appeased simply by the death of him or those who aroused his anger, or of some representative of the offending community, or of somebody belonging to the kin of the offender, pp. 438–440.—Human sacrifice chiefly a method of life-insurance, based on the idea of substitution, p. 440.—Human victims offered in war, before a battle, or during a siege, p. 440 sq.—For the purpose of stopping or preventing epidemics, p. 441 sq.—For the purpose of putting an end to a devastating famine, p. 442 sq.—For the purpose of preventing famine, p. 443 sq.—Criticism of Dr. Frazer’s hypothesis that the human victim who is killed for the purpose of ensuring good crops is regarded as a representative of the corn-spirit and is slain as such, pp. 444–451.—Human victims offered with a view to getting water, p. 451 sq.—With a view to averting perils arising from the sea or from rivers, pp. 452–454.—For the purpose of preventing the death of some particular individual, especially a chief or a king, from sickness, old age, or other circumstances, pp. 454–457.—For the purpose of helping other men into existence, p. 457 sq.—The killing of the first-born child, or the first-born son, p. 458 sq.—Explanation of this practice, pp. 459–461.—Human sacrifices offered in connection with the foundation of buildings, p. 461 sq.—The building-sacrifice, like other kinds of human sacrifice, probably based on the idea of substitution, pp. 462–464.—The belief that xviithe soul of the victim is converted into a protecting demon, p. 464 sq.—The human victim regarded as a messenger, p. 465 sq.—Human sacrifice not an act of wanton cruelty, p. 466.—The king or chief sometimes sacrificed, ibid.—The victims frequently prisoners of war or other aliens, or slaves, or criminals, pp. 466–468.—The disappearance of human sacrifice, p. 468.—Human sacrifice condemned, p. 465 sq.—Practices intended to replace it, p. 469.—Human effigies or animals offered instead of men, p. 469 sq.—Human sacrifices succeeded by practices involving the effusion of human blood without loss of life, p. 470.—Bleeding or mutilation practised for the same purpose as human sacrifice, p. 470 sq.—Why the penal sacrifice of offenders has outlived all other forms of human sacrifice, p. 471.—Human beings sacrificed to the dead in order to serve them as slaves, wives, or companions, pp. 472–474.—This custom dwindling into a survival, p. 475.—The funeral sacrifice of men and animals also seems to involve an intention to vivify the spirits of the deceased with blood, p. 475 sq.—Manslayers killed in order to satisfy their victims’ craving for revenge, p. 476.

 

CHAPTER XX

BLOOD-REVENGE AND COMPENSATION—THE PUNISHMENT OF DEATH

The prevalence of the custom of blood-revenge, pp. 477–479.—Blood-revenge regarded not only as a right, but as a duty, p. 479 sq.—This duty in the first place regarded as a duty to the dead, whose spirit is believed to find no rest after death until the injury has been avenged, p. 481 sq.—Blood-revenge a form of human sacrifice, p. 482.—Blood-revenge also practised on account of the injury inflicted on the survivors, p. 482 sq.—Murder committed within the family or kin left unavenged, p. 483.—The injury inflicted on the relatives of the murdered man suggests not only revenge, but reparation, ibid.—The taking of life for life may itself, in a way, serve as compensation, p. 483 sq.—Various methods of compensation, p. 484.—The advantages of the practice of composition, p. 484 sq.—Its disadvantages, p. 485.—The importance of these disadvantages depends on the circumstances in each special case, p. 486 sq.—Among many peoples the rule of revenge strictly followed, and to accept compensation considered disgraceful, p. 487.—The acceptance of compensation does not always mean that the family of the slain altogether renounce their right of revenge, p. 487 sq.—The acceptance of compensation allowed as a justifiable alternative for blood-revenge, or even regarded as the proper method of settling the case, p. 488 sq.—The system of compensation partly due to the pressure of some intervening authority, p. 489 sq.—The adoption of this method for the settling of disputes a sign of weakness, p. 491.—When the central power of jurisdiction is firmly established, the rule of life for life regains its sway, ibid.—A person may forfeit his right to live by other crimes besides homicide, p. 491 sq.—Opposition to and arguments against capital punishment, pp. 492–495.—Modern legislation has undergone a radical change with reference to capital punishment, p. 495.—Arguments against its abolition, p. 495 sq.—The chief motive for retaining it in modern legislation, p. 496.

 

CHAPTER XXI

THE DUEL

Duelling resorted to as a means of bringing to an end hostilities between different groups of people, p. 497 sq.—Duels fought for the purpose of settling disputes between individuals, either by conferring on the victor the right of possessing xviiithe object of the strife, or by gratifying a craving for revenge and wiping off the affront, pp. 498–502.—The circumstances to which these customs are due, p. 503 sq.—The duel as an ordeal or “judgment of God,” p. 504 sq.—The judicial duel fundamentally derived its efficacy as a means of ascertaining the truth from its connection with an oath, p. 505 sq. How it came to be regarded as an appeal to the justice of God, p. 506 sq.—The decline and disappearance of the judicial duel, p. 507.—The modern duel of honour, pp. 507–509.—Its causes, p. 509.—Arguments adduced in support of it, p. 509 sq.

 

CHAPTER XXII

BODILY INJURIES

In the case of bodily injuries the magnitude of the offence, other things being equal, proportionate to the harm inflicted, pp. 511–513.—The degree of the offence also depends on the station of the parties concerned, and in some cases the infliction of pain held allowable or even a duty, p. 513.—Children using violence against their parents, ibid.—Parents’ right to inflict corporal punishment on their children, p. 513 sq.—The husband’s right to chastise his wife, pp. 514–516.—The master’s right to inflict corporal punishment on his slave, p. 516 sq.—The maltreatment of another person’s slave regarded as an injury done to the master, rather than to the slave, p. 517.—Slaves severely punished for inflicting bodily injuries on freemen, p. 510.—The penalties or fines for bodily injuries influenced by the class or rank of the parties when both of them are freemen, p. 518 sq.—Distinction between compatriots and aliens with reference to bodily injuries, p. 519.—The infliction of sufferings on vanquished enemies, p. 519 sq.—The right to bodily integrity influenced by religious differences, p. 520—Forfeited by the commission of a crime, p. 520 sq.—Amputation or mutilation of the offending member has particularly been in vogue among peoples of culture, p. 521 sq.—The disappearance of corporal punishment in Europe, p. 522.—Corporal punishment has been by preference a punishment for poor and common people or slaves, p. 522 sq.—The status of a person influencing his right to bodily integrity with reference to judicial torture, p. 523 sq.—Explanation of the moral notions regarding the infliction of bodily injuries, p. 524.—The notions that an act of bodily violence involves a gross insult, and that corporal punishment disgraces the criminal more than any other form of penalty, p. 524 sq.

 

CHAPTER XXIII

CHARITY AND GENEROSITY

The mother’s duty to rear her children, p. 526.—The husband’s and father’s duty to protect and support his family, pp. 526–529.—The parents’ duty of taking care of their offspring in the first place based on the sentiment of parental affection, p. 529.—The universality not only of the maternal, but of the paternal, sentiment in mankind, pp. 529–532.—Marital affection among savages, p. 532.—Explanation of the simplest paternal and marital duties, p. 533—Children’s duty of supporting their aged parents, pp. 533–538. The duty of assisting brothers and sisters, p. 538.—Of assisting more distant relatives, pp. 538–540.—Uncivilised peoples as a rule described as kind towards members of their own community or tribe, enjoin charity between themselves as a duty, and praise generosity as a virtue, pp. 540–546.—Among many savages the old people, in particular, have a claim to support and assistance, p. 546.—The sick often carefully attended to, pp. 546–548.—xixAccounts of uncharitable savages, p. 548 sq.—Among semi-civilised and civilised nations charity universally regarded as a duty, and often strenuously enjoined by their religions, pp. 549–556.—In the course of progressing civilisation the obligation of assisting the needy has been extended to wider and wider circles of men, pp. 556–558.—The duty of tending wounded enemies in war, p. 558.—Explanation of the gradual expansion of the duty of charity, p. 559.—This duty in the first place based on the altruistic sentiment, p. 559 sq.—Egoistic motives for the doing of good to fellow-creatures, p. 560.—By niggardliness a person may expose himself to supernatural dangers, pp. 560–562.—Liberality may entail supernatural reward, p. 562 sq.—The curses and blessings of the poor partly account for the fact that charity has come to be regarded as a religious duty, pp. 563–565.—The chief cause of the extraordinary stress which the higher religions put on the duty of charity seems to lie in the connection between almsgiving and sacrifice, the poor becoming the natural heirs of the god, p. 565.—Instances of sacrificial food being left for, or distributed among, the poor, p. 565 sq.—Almsgiving itself regarded as a form of sacrifice, or taking the place of it, pp. 566–569.

 

CHAPTER XXIV

HOSPITALITY

Instances of great kindness displayed by savages towards persons of a foreign race, pp. 570–572.—Hospitality a universal custom among the lower races and among the peoples of culture at the earlier stages of their civilisation, pp. 572–574.—The stranger treated with special marks of honour, and enjoying extraordinary privileges as a guest, pp. 574–576.—Custom may require that hospitality should be shown even to an enemy, p. 576 sq.—To protect a guest looked upon as a most stringent duty, p. 577 sq.—Hospitality in a remarkable degree associated with religion, pp. 578–580.—The rules of hospitality in the main based on egoistic considerations, p. 581.—The stranger, supposed to bring with him good luck or blessings, pp. 581–583.—The blessings of a stranger considered exceptionally powerful, p. 583 sq.—The visiting stranger regarded as a potential source of evil, p. 584.—His evil wishes and curses greatly feared, owing partly to his quasi-supernatural character, partly to the close contact in which he comes with the host and his belongings, pp. 584–590.—Precautions taken against the visiting stranger, pp. 590–593.—Why no payment is received from a guest, p. 593 sq.—The duty of hospitality limited by time, p. 594 sq.—The cause of this, p. 595 sq.—The decline of hospitality in progressive communities, p. 596.

 

CHAPTER XXV

THE SUBJECTION OF CHILDREN

The right of personal freedom never absolute, p. 597.—Among some savages a man’s children are in the power of the head of their mother’s family or of their maternal uncle, p. 597 sq.—Among the great bulk of existing savages children are in the power of their father, though he may to some extent have to share his authority with the mother, p. 598 sq.—The extent of the father’s power subject to great variations, p. 599.—Among some savages the father’s authority practically very slight, p. 599 sq.—Other savages by no means deficient in filial piety, p. 600 sq.—The period during which the paternal authority lasts, p. 601 sq.—Old age commands respect and gives authority, pp. 603–605.—Superiority of age also gives a certain amount xxof power, p. 605 sq.—The reverence for old age may cease when the grey-head becomes an incumbrance to those around him, and imbecility may put an end to the father’s authority over his family, p. 606 sq.—Paternal, or parental, authority and filial reverence at their height among peoples of archaic culture, pp. 607–613.—Among these peoples we also meet with reverence for the elder brother, for persons of a superior age generally, and especially for the aged, p. 614 sq.—Decline of the paternal authority in Europe, p. 615 sq.—Christianity not unfavourable to the emancipation of children, though obedience to parents was enjoined as a Christian duty, p. 616 sq.—The Roman notions of paternal rights and filial duties have to some extent survived in Latin countries, p. 617 sq.—Sources of the parental authority, p. 618 sq.—Among savages, in particular, filial regard is largely regard for one’s elders or the aged, p. 619.—Causes of the regard for old age, pp. 619–621.—The chief cause of the connection between filial submissiveness and religious beliefs the extreme importance attached to parental curses and blessings, pp. 621–626.—Why the blessings and curses of parents are supposed to possess an unusual power, p. 626 sq.—Explanation of the extraordinary development of the paternal authority in the archaic State, p. 627 sq.—Causes of the downfall of the paternal power, p. 628.

 

CHAPTER XXVI

THE SUBJECTION OF WIVES

Among the lower races the wife frequently said to be the property or slave of her husband, p. 629 sq.—Yet even in such cases custom has not left her entirely destitute of rights, p. 630 sq.—The so-called absolute authority of husbands over their wives not to be taken too literally, p. 631 sq.—The bride-price does not eo ipso confer on the husband absolute rights over her, p. 632 sq.—The hardest drudgeries of life often said to be imposed on the women, p. 633 sq.—In early society each sex has its own pursuits, p. 634.—The rules according to which the various occupations of life are divided between the sexes are on the whole in conformity with the indications given by nature, p. 635 sq.—This division of labour emphasised by custom and superstition, p. 636 sq.—It is apt to mislead the travelling stranger, p. 637.—It gives the wife authority within the circle which is exclusively her own, ibid.—Rejection of the broad statement that the lower races in general hold their women in a state of almost complete subjection, pp. 638–646.—The opinion that a people’s civilisation may be measured by the position held by the women not correct, at least so far as the earlier stages of culture are concerned, p. 646 sq.—The position of woman among the peoples of archaic civilisation, pp. 647–653.—Christianity tended to narrow the remarkable liberty granted to married women under the Roman Empire, p. 653 sq.—Christian orthodoxy opposed to the doctrine that marriage should be a contract on the footing of perfect equality between husband and wife, p. 654 sq.—Criticism of the hypothesis that the social status of women is connected with the system of tracing descent, p. 655 sq.—The authority of a husband who lives with his wife in the house or community of her father, p. 656 sq.—Wives’ subjection to their husbands in the first place due to the men’s instinctive desire to exert power, and to the natural inferiority of women in such qualities of body and mind as are essential for personal independence, p. 657.—Elements in the sexual impulse which lead to domination on the part of the man and to submission on the part of the woman, p. 657 sq.—But if the man’s domination is carried beyond the limits of female love, the woman feels it as a burden, p. 658 sq.—In extreme cases of oppression, at any rate, the community at large would sympathise with her, and the public resentment against the oppressor would result in customs or laws limiting the xxihusband’s rights, p. 659.—The offended woman may count upon the support of her fellow-sisters, ibid.—The children’s affection and regard for their mother gives her power, ibid.—The influence which economic conditions exercise on the position of woman, pp. 659–661.—The status of wives connected with the ideas held about the female sex in general, p. 661.—Woman regarded as intellectually and morally vastly inferior to man, especially among nations more advanced in culture, pp. 661–663.—Progress in civilisation has exercised an unfavourable influence on the position of woman by widening the gulf between the sexes, p. 663.—Religion has contributed to her degradation by regarding her as unclean, p. 663 sq.—Women excluded from religious worship and sacred functions, pp. 664–666.—The notion that woman is unclean, however, gives her a secret power over her husband, as women are supposed to be better versed in magic than men, pp. 666–668.—The curses of women greatly feared, p. 668.—Woman as an asylum, p. 668 sq.—In archaic civilisation the status of married women was affected by the fact that the house-father was invested with some part of the power which formerly belonged to the clan, p. 669.—Causes of the decrease of the husband’s authority over his wife in modern civilisation, ibid.

 

CHAPTER XXVII

SLAVERY

Definition of slavery, p. 670 sq.—The distribution of slavery and its causes among savages, pp. 671–674.—The earliest source of slavery was probably war or conquest, p. 674 sq.—Intra-tribal slavery among savages, p. 675 sq.—The master’s power over his slave among slave-holding savages, pp. 676–678.—Among the lower races slaves are generally treated kindly, pp. 678–680.—Intra-tribal slaves, especially such as are born in the house, generally treated better than extra-tribal or purchased slaves, p. 680 sq.—Slavery among the nations of archaic culture, pp. 681–693.—The attitude of Christianity towards slavery, pp. 693–700.—The supposed causes of the extinction of slavery in Europe, pp. 697–701.—The chief cause the transformation of slavery into serfdom, p. 701.—Serfdom only a transitory condition leading up to a state of entire liberty, pp. 701–703.—The attitude of the Church towards serfdom, p. 703 sq.—The negro slavery in the colonies of European countries and the Southern States of America, and the legislation relating to it, pp. 704–711.—The support given to it by the clergy, pp. 711–713.—The want of sympathy for, or positive antipathy to, the coloured race, p. 713 sq.—The opinions regarding slavery and the condition of slaves influenced by altruistic considerations, p. 714 sq.—The condition of slaves influenced by the selfish considerations of their masters, p. 715 sq.

 

 

 

 

THE ORIGIN AND DEVELOPMENT

OF THE MORAL IDEAS

 

 

 

 

THE ORIGIN AND DEVELOPMENT

OF THE MORAL IDEAS

INTRODUCTORY

 

THE main object of this book will perhaps be best explained by a few words concerning its origin.

Its author was once discussing with some friends the point how far a bad man ought to be treated with kindness. The opinions were divided, and, in spite of much deliberation, unanimity could not be attained. It seemed strange that the disagreement should be so radical, and the question arose, Whence this diversity of opinion? Is it due to defective knowledge, or has it a merely sentimental origin? And the problem gradually expanded. Why do the moral ideas in general differ so greatly? And, on the other hand, why is there in many cases such a wide agreement? Nay, why are there any moral ideas at all?

Since then many years have passed, spent by the author in trying to find an answer to these questions. The present work is the result of his researches and thoughts.

The first part of it will comprise a study of the moral concepts: right, wrong, duty, justice, virtue, merit, &c. Such a study will be found to require an examination into the moral emotions, their nature and origin, as also into the relations between these emotions and the various 2moral concepts. There will then be a discussion of the phenomena to which such concepts are applied—the subjects of moral judgments. The general character of these phenomena will be scrutinised, and an answer sought to the question why facts of a certain type are matters of moral concern, while other facts are not. Finally, the most important of these phenomena will be classified, and the moral ideas relating to each class will be stated, and, so far as possible, explained.

An investigation of this kind cannot be confined to feelings and ideas prevalent in any particular society or at any particular stage of civilisation. Its subject-matter is the moral consciousness of mankind at large. It consequently involves the survey of an unusually rich and varied field of research—psychological, ethnographical, historical, juridical, theological. In the present state of our knowledge, when monographs on most of the subjects involved are wanting, I presume that such an undertaking is, strictly speaking, too big for any man; at any rate it is so for the writer of this book. Nothing like completeness can be aimed at. Hypotheses of varying degrees of probability must only too often be resorted to. Even the certainty of the statements on which conclusions are based is not always beyond a doubt. But though fully conscious of the many defects of his attempt, the author nevertheless ventures to think himself justified in placing it before the public. It seems to him that one of the most important objects of human speculation cannot be left in its present state of obscurity; that at least a glimpse of light must be thrown upon it by researches which have extended over some fifteen years; and that the main principles underlying the various customs of mankind may be arrived at even without subjecting these customs to such a full and minute treatment as would be required of an anthropological monograph.

Possibly this essay, in spite of its theoretical character, may even be of some practical use. Though rooted in the emotional side of our nature, our moral 3opinions are in a large measure amenable to reason. Now in every society the traditional notions as to what is good or bad, obligatory or indifferent, are commonly accepted by the majority of people without further reflection. By tracing them to their source it will be found that not a few of these notions have their origin in sentimental likings and antipathies, to which a scrutinising and enlightened judge can attach little importance; whilst, on the other hand, he must account blamable many an act and omission which public opinion, out of thoughtlessness, treats with indifference. It will, moreover, appear that a moral estimate often survives the cause from which it sprang. And no unprejudiced person can help changing his views if he be persuaded that they have no foundation in existing facts.

CHAPTER I

THE EMOTIONAL ORIGIN OF MORAL JUDGMENTS

 

THAT the moral concepts are ultimately based on emotions either of indignation or approval, is a fact which a certain school of thinkers have in vain attempted to deny. The terms which embody these concepts must originally have been used—indeed they still constantly are so used—as direct expressions of such emotions with reference to the phenomena which evoked them. Men pronounced certain acts to be good or bad on account of the emotions those acts aroused in their minds, just as they called sunshine warm and ice cold on account of certain sensations which they experienced, and as they named a thing pleasant or painful because they felt pleasure or pain. But to attribute a quality to a thing is never the same as merely to state the existence of a particular sensation or feeling in the mind which perceives it. Such an attribution must mean that the thing, under certain circumstances, makes a certain impression on the mind. By calling an object warm or pleasant, a person asserts that it is apt to produce in him a sensation of heat or a feeling of pleasure. Similarly, to name an act good or bad, ultimately implies that it is apt to give rise to an emotion of approval or disapproval in him who pronounces the judgment. Whilst not affirming the actual existence of any specific emotion in the mind of the person judging or of anybody else, the predicate of a moral judgment attributes to the subject a tendency to arouse an emotion. The moral 5concepts, then, are essentially generalisations of tendencies in certain phenomena to call forth moral emotions.

However, as is frequently the case with general terms, these concepts are mentioned without any distinct idea of their contents. The relation in which many of them stand to the moral emotions is complicated; the use of them is often vague; and ethical theorisers, instead of subjecting them to a careful analysis, have done their best to increase the confusion by adapting the meaning of the terms to fit their theories. Very commonly, in the definition of the goodness or badness of acts, reference is made, not to their tendencies to evoke emotions of approval or indignation, but to the causes of these tendencies, that is, to those qualities in the acts which call forth moral emotions. Thus, because good acts generally produce pleasure and bad acts pain, goodness and badness have been identified with the tendencies of acts to produce pleasure or pain. The following statement of Sir James Stephen is a clearly expressed instance of this confusion, so common among utilitarians:—“Speaking generally, the acts which are called right do promote, or are supposed to promote general happiness, and the acts which are called wrong do diminish, or are supposed to diminish it. I say, therefore, that this is what the words ‘right’ and ‘wrong’ mean, just as the words ‘up’ and ‘down’ mean that which points from or towards the earth’s centre of gravity, though they are used by millions who have not the least notion of the fact that such is their meaning, and though they were used for centuries and millenniums before any one was or even could be aware of it.”1 So, too, Bentham maintained that words like “ought,” “right,” and “wrong,” have no meaning unless interpreted in accordance with the principle of utility;2 and James Mill was of opinion that “the very morality” of the act lies, not in the sentiments raised in the breast of him who perceives or contemplates it, but in “the consequences of the act, good or evil, and their being 6within the intention of the agent.”3 He adds that a rational assertor of the principle of utility approves of an action “because it is good,” and calls it good “because it conduces to happiness.”4 This, however, is to invert the sequence of the facts, since, properly speaking, an act is called good because it is approved of, and is approved of by an utilitarian in so far as it conduces to happiness.

1 Stephen, Liberty, Equality, Fraternity, p. 338.

2 Bentham, Principles of Morals and Legislation, p. 4.

3 James Mill, Fragment on Mackintosh, pp. 5, 376.

4 Ibid. p. 368.

Such confusion of terms cannot affect the real meaning of the moral concepts. It is true that he who holds that “actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness,”5 may, by a merely intellectual process, pass judgment on the moral character of particular acts; but, if he is an utilitarian from conviction, his first principle, at least, has an emotional origin. The case is similar with many of the moral judgments ordinarily passed by men. They are applications of some accepted general rule: conformity or non-conformity to the rule decides the rightness or wrongness of the act judged of. But whether the rule be the result of a person’s independent deductions, or be based upon authority, human or divine, the fact that his moral consciousness recognises it as valid implies that it has an emotional sanction in his own mind.

5 Stuart Mill, Utilitarianism, p. 9 sq.

Whilst the import of the predicate of a moral judgment may thus in every case be traced back to an emotion in him who pronounces the judgment, it is generally assumed to possess the character of universality or “objectivity” as well. The statement that an act is good or bad does not merely refer to an individual emotion; as will be shown subsequently, it always has reference to an emotion of a more public character. Very often it even implies some vague assumption that the act must be recognised as good or bad by everybody who possesses a sufficient knowledge of the case and of all attendant circumstances, and who has a “sufficiently developed” 7moral consciousness. We are not willing to admit that our moral convictions are a mere matter of taste, and we are inclined to regard convictions differing from our own as errors. This characteristic of our moral judgments has been adduced as an argument against the emotionalist theory of moral origins, and has led to the belief that the moral concepts represent qualities which are discerned by reason.

Cudworth, Clarke, Price, and Reid are names which recall to our mind a theory according to which the morality of actions is perceived by the intellect, just as are number, diversity, causation, proportion. “Morality is eternal and immutable,” says Richard Price. “Right and wrong, it appears, denote what actions are. Now whatever any thing is, that it is, not by will, or degree, or power, but by nature and necessity. Whatever a triangle or circle is, that it is unchangeably and eternally…. The same is to be said of right and wrong, of moral good and evil, as far as they express real characters of actions. They must immutably and necessarily belong to those actions of which they are truly affirmed.”6 And as having a real existence outside the mind, they can only be discerned by the understanding. It is true that this discernment is accompanied with an emotion: “Some impressions of pleasure or pain, satisfaction or disgust, generally attend our perceptions of virtue and vice. But these are merely their effects and concomitants, and not the perceptions themselves, which ought no more to be confounded with them, than a particular truth (like that for which Pythagoras offered a hecatomb) ought to be confounded with the pleasure that may attend the discovery of it.”7

6 Price, Review of the Principal Questions in Morals, pp. 63, 74 sq.

7 Ibid. p. 63.

According to another doctrine, the moral predicates, though not regarded as expressions of “theoretical” truth, nevertheless derive all their import from reason from “practical” or “moral” reason, as it is variously 8called. Thus Professor Sidgwick holds that the fundamental notions represented by the word “ought” or “right,” which moral judgments contain expressly or by implication, are essentially different from all notions representing facts of physical or psychical experience, and he refers such judgments to the “reason,” understood as a faculty of cognition. By this he implies “that what ought to be is a possible object of knowledge, i.e., that what I judge ought to be, must, unless I am in error, be similarly judged by all rational beings who judge truly of the matter.” The moral judgments contain moral truths, and “cannot legitimately be interpreted as judgments respecting the present or future existence of human feelings or any facts of the sensible world.”8

8 Sidgwick, Methods of Ethics, pp. 25, 33 sq.

Yet our tendency to objectivise the moral judgments is no sufficient ground for referring them to the province of reason. If, in this respect, there is a difference between these judgments and others that are rooted in the subjective sphere of experience, it is, largely, a difference in degree rather than in kind. The aesthetic judgments, which indisputably have an emotional origin, also lay claim to a certain amount of “objectivity.” By saying of a piece of music that it is beautiful, we do not merely mean that it gives ourselves aesthetic enjoyment, but we make a latent assumption that it must have a similar effect upon everybody who is sufficiently musical to appreciate it. This objectivity ascribed to judgments which have a merely subjective origin springs in the first place from the similarity of the mental constitution of men, and, generally speaking, the tendency to regard them as objective is greater in proportion as the impressions vary less in each particular case. If “there is no disputing of tastes,” that is because taste is so extremely variable; and yet even in this instance we recognise a certain “objective” standard by speaking of a “bad” and a “good” taste. On the other hand, if the appearance of objectivity in the moral judgments is so illusive as to 9make it seem necessary to refer them to reason, that is partly on account of the comparatively uniform nature of the moral consciousness.

Society is the school in which men learn to distinguish between right and wrong. The headmaster is Custom, and the lessons are the same for all. The first moral judgments were pronounced by public opinion; public indignation and public approval are the prototypes of the moral emotions. As regards questions of morality, there was, in early society, practically no difference of opinion; hence a character of universality, or objectivity, was from the very beginning attached to all moral judgments. And when, with advancing civilisation, this unanimity was to some extent disturbed by individuals venturing to dissent from the opinions of the majority, the disagreement was largely due to facts which in no way affected the moral principle, but had reference only to its application.

Most people follow a very simple method in judging of an act. Particular modes of conduct have their traditional labels, many of which are learnt with language itself; and the moral judgment commonly consists simply in labelling the act according to certain obvious characteristics which it presents in common with others belonging to the same group. But a conscientious and intelligent judge proceeds in a different manner. He carefully examines all the details connected with the act, the external and internal conditions under which it was performed, its consequences, its motive; and, since the moral estimate in a large measure depends upon the regard paid to these circumstances, his judgment may differ greatly from that of the man in the street, even though the moral standard which they apply be exactly the same. But to acquire a full insight into all the details which are apt to influence the moral value of an act is in many cases anything but easy, and this naturally increases the disagreement. There is thus in every advanced society a diversity of opinion regarding the moral value of certain modes of conduct which results from circumstances of a purely 10intellectual character—from the knowledge or ignorance of positive facts,—and involves no discord in principle.

Now it has been assumed by the advocates of various ethical theories that all the differences of moral ideas originate in this way, and that there is some ultimate standard which must be recognised as authoritative by everybody who understands it rightly. According to Bentham, the rectitude of utilitarianism has been contested only by those who have not known their own meaning:—“When a man attempts to combat the principle of utility … his arguments, if they prove anything, prove not that the principle is wrong, but that, according to the applications he supposes to be made of it, it is misapplied.”9 Mr. Spencer, to whom good conduct is that “which conduces to life in each and all,” believes that he has the support of “the true moral consciousness,” or “moral consciousness proper,” which, whether in harmony or in conflict with the “pro-ethical” sentiment, is vaguely or distinctly recognised as the rightful ruler.10 Samuel Clarke, the intuitionist, again, is of opinion that if a man endowed with reason denies the eternal and necessary moral differences of things, it is the very same “as if a man that has the use of his sight, should at the same time that he beholds the sun, deny that there is any such thing as light in the world; or as if a man that understands Geometry or Arithmetick, should deny the most obvious and known proportions of lines or numbers.”11 In short, all disagreement as to questions of morals is attributed to ignorance or misunderstanding.

9 Bentham, Principles of Morals and Legislation, p. 4 sq.

10 Spencer, Principles of Ethics, i. 45, 337 sq.

11 Clarke, Discourse concerning the Unchangeable Obligations of Natural Religion, p. 179.

The influence of intellectual considerations upon moral judgments is certainly immense. We shall find that the evolution of the moral consciousness to a large extent consists in its development from the unreflecting to the reflecting, from the unenlightened to the enlightened. All higher emotions are determined by cognitions, they arise 11from “the presentation of determinate objective conditions”;12 and moral enlightenment implies a true and comprehensive presentation of those objective conditions by which the moral emotions, according to their very nature, are determined. Morality may thus in a much higher degree than, for instance, beauty be a subject of instruction and of profitable discussion, in which persuasion is carried by the representation of existing data. But although in this way many differences may be accorded, there are points in which unanimity cannot be reached even by the most accurate presentation of facts or the subtlest process of reasoning.

12 Marshall, Pain, Pleasure, and Aesthetics, p. 83.

Whilst certain phenomena will almost of necessity arouse similar moral emotions in every mind which perceives them clearly, there are others with which the case is different. The emotional constitution of man does not present the same uniformity as the human intellect. Certain cognitions inspire fear in nearly every breast; but there are brave men and cowards in the world, independently of the accuracy with which they realise impending danger. Some cases of suffering can hardly fail to awaken compassion in the most pitiless heart; but the sympathetic dispositions of men vary greatly, both in regard to the beings with whose sufferings they are ready to sympathise, and with reference to the intensity of the emotion. The same holds good for the moral emotions. The existing diversity of opinion as to the rights of different classes of men and of the lower animals, which springs from emotional differences, may no doubt be modified by a clearer insight into certain facts, but no perfect agreement can be expected as long as the conditions under which the emotional dispositions are formed remain unchanged. Whilst an enlightened mind must recognise the complete or relative irresponsibility of an animal, a child, or a madman, and must be influenced in its moral judgment by the motives of an act—no intellectual enlightenment, no scrutiny of facts, can decide how far the interests of the 12lower animals should be regarded when conflicting with those of men, or how far a person is bound, or allowed, to promote the welfare of his nation, or his own welfare, at the cost of that of other nations or other individuals. Professor Sidgwick’s well-known moral axiom, “I ought not to prefer my own lesser good to the greater good of another,”13 would, if explained to a Fuegian or a Hottentot, be regarded by him, not as self-evident, but as simply absurd; nor can it claim general acceptance even among ourselves. Who is that “Another” to whose greater good I ought not to prefer my own lesser good? A fellow-countryman, a savage, a criminal, a bird, a fish—all without distinction? It will, perhaps, be argued that on this, and on all other points of morals, there would be general agreement, if only the moral consciousness of men were sufficiently developed.14 But then, when speaking of a “sufficiently developed” moral consciousness (beyond insistence upon a full insight into the governing facts of each case), we practically mean nothing else than agreement with our own moral convictions. The expression is faulty and deceptive, because, if intended to mean anything more, it presupposes an objectivity of the moral judgments which they do not possess, and at the same time seems to be proving what it presupposes. We may speak of an intellect as sufficiently developed to grasp a certain truth, because truth is objective; but it is not proved to be objective by the fact that it is recognised as true by a “sufficiently developed” intellect. The objectivity of truth lies in the recognition of facts as true by all who understand them fully, whilst the appeal to a sufficient knowledge assumes their objectivity. To the verdict of a perfect intellect, that is, an intellect which knows everything existing, all would submit; but we can form no idea of a moral consciousness which could lay claim to a similar authority. If the believers in an all-13good God, who has revealed his will to mankind, maintain that they in this revelation possess a perfect moral standard, and that, consequently, what is in accordance with such a standard must be objectively right, it may be asked what they mean by an “all-good” God. And in their attempt to answer this question, they would inevitably have to assume the objectivity they wanted to prove.

13 Sidgwick, op. cit. p. 383.

14 This, in fact, was the explanation given by Professor Sidgwick himself in a conversation which I had with him regarding his moral axioms.

The error we commit by attributing objectivity to moral estimates becomes particularly conspicuous when we consider that these estimates have not only a certain quality, but a certain quantity. There are different degrees of badness and goodness, a duty may be more or less stringent, a merit may be smaller or greater.15 These quantitative differences are due to the emotional origin of all moral concepts. Emotions vary in intensity almost indefinitely, and the moral emotions form no exception to this rule. Indeed, it may be fairly doubted whether the same mode of conduct ever arouses exactly the same degree of indignation or approval in any two individuals. Many of these differences are of course too subtle to be manifested in the moral judgment; but very frequently the intensity of the emotion is indicated by special words, or by the way in which the judgment is pronounced. It should be noticed, however, that the quantity of the estimate expressed in a moral predicate is not identical with the intensity of the moral emotion which a certain mode of conduct arouses on a special occasion. We are liable to feel more indignant if an injury is committed before our eyes than if we read of it in a newspaper, and yet we admit that the degree of wrongness is in both cases the same. The quantity of moral estimates is determined by the intensity of the emotions which their objects tend to evoke under exactly similar external circumstances.

15 It will be shown in a following chapter why there are no degrees of rightness. This concept implies accordance with the moral law. The adjective “right” means that duty is fulfilled.

14Besides the relative uniformity of moral opinions, there is another circumstance which tempts us to objectivise moral judgments, namely, the authority which, rightly or wrongly, is ascribed to moral rules. From our earliest childhood we are taught that certain acts are right and that others are wrong. Owing to their exceptional importance for human welfare, the facts of the moral consciousness are emphasised in a much higher degree than any other subjective facts. We are allowed to have our private opinions about the beauty of things, but we are not so readily allowed to have our private opinions about right and wrong. The moral rules which are prevalent in the society to which we belong are supported by appeals not only to human, but to divine, authority, and to call in question their validity is to rebel against religion as well as against public opinion. Thus the belief in a moral order of the world has taken hardly less firm hold of the human mind than the belief in a natural order of things. And the moral law has retained its authoritativeness even when the appeal to an external authority has been regarded as inadequate. It filled Kant with the same awe as the star-spangled firmament. According to Butler, conscience is “a faculty in kind and in nature supreme over all others, and which bears its own authority of being so.”16 Its supremacy is said to be “felt and tacitly acknowledged by the worst no less than by the best of men.”17 Adam Smith calls the moral faculties the “vicegerents of God within us,” who “never fail to punish the violation of them by the torments of inward shame and self-condemnation; and, on the contrary, always reward obedience with tranquillity of mind, with contentment, and self-satisfaction.”18 Even Hutcheson, who raises the question why the moral sense should not vary in different men as the palate does, considers it 15“to be naturally destined to command all the other powers.”19

16 Butler, ‘Sermon II.—Upon Human Nature,’ in Analogy of Religion, &c. p. 403.

17 Dugald Stewart, Philosophy of the Active and Moral Powers of Man, i. 302.

18 Adam Smith, Theory of Moral Sentiments, p. 235.

19 Hutcheson, System of Moral Philosophy, i. 61.

Authority is an ambiguous word. It may indicate knowledge of truth, and it may indicate a rightful power to command obedience. The authoritativeness attributed to the moral law has often reference to both kinds of authority. The moral lawgiver lays down his rules in order that they should be obeyed, and they are authoritative in so far as they have to be obeyed. But he is also believed to know what is right and wrong, and his commands are regarded as expressions of moral truths. As we have seen, however, this latter kind of authority involves a false assumption as to the nature of the moral predicates, and it cannot be justly inferred from the power to command. Again, if the notion of an external lawgiver be put aside, the moral law does not generally seem to possess supreme authority in either sense of the word. It does not command obedience in any exceptional degree; few laws are broken more frequently. Nor can the regard for it be called the mainspring of action; it is only one spring out of many, and variable like all others. In some instances it is the ruling power in a man’s life, in others it is a voice calling in the desert; and the majority of people seem to be more afraid of the blame or ridicule of their fellowmen, or of the penalties with which the law threatens them, than of “the vicegerents of God” in their own hearts. That mankind prefer the possession of virtue to all other enjoyments, and look upon vice as worse than any other misery,20 is unfortunately an imagination of some moralists who confound men as they are with men as they ought to be.

20 Idem, Inquiry into the Original of our Ideas of Beauty and Virtue, p. 248.

It is said that the authority of the moral law asserts itself every time the law is broken, that virtue bears in itself its own reward, and vice its own punishment. But, to be sure, conscience is a very unjust retributer. The more a person habituates himself to virtue the more he 16sharpens its sting, the deeper he sinks in vice the more he blunts it. Whilst the best men have the most sensitive consciences, the worst have hardly any conscience at all. It is argued that the habitual sinner has rid himself of remorse at a great cost;21 but it may be fairly doubted whether the loss is an adequate penalty for his wickedness. We are reminded that men are rewarded for good and punished for bad acts by the moral feelings of their neighbours. But public opinion and law judge of detected acts only. Their judgment is seldom based upon an exhaustive examination of the case. They often apply a standard which is itself open to criticism. And the feelings with which men regard their fellow-creatures, and which are some of the main sources of human happiness and suffering, have often very little to do with morality. A person is respected or praised, blamed or despised, on other grounds than his character. Nay, the admiration which men feel for genius, courage, pluck, strength, or accidental success, is often superior in intensity to the admiration they feel for virtue.

21 Ziegler, Social Ethics, p. 103.

In spite of all this, however, the supreme authority assigned to the moral law is not altogether an illusion. It really exists in the minds of the best, and is nominally acknowledged by the many. By this I do not refer to the universal admission that the moral law, whether obeyed or not, ought under all circumstances to be obeyed; for this is the same as to say that what ought to be ought to be. But it is recognised, in theory at least, that morality, either alone or in connection with religion, possesses a higher value than anything else; that rightness and goodness are preferable to all other kinds of mental superiority, as well as of physical excellence. If this theory is not more commonly acted upon, that is due to its being, in most people, much less the outcome of their own feelings than of instruction from the outside. It is ultimately traceable to some great teacher whose own mind was ruled by the ideal of moral perfection, and whose 17words became sacred on account of his supreme wisdom, like Confucius or Buddha,22 or on religious grounds, like Jesus. The authority of the moral law is thus only an expression of a strongly developed, overruling moral consciousness. It can hardly, as Mr. Sidgwick maintains, be said to “depend upon” the conception of the objectivity of duty.23 On the contrary, it must be regarded as a cause of this conception—not only, as has already been pointed out, where it is traceable to some external authority, but where it results from the strength of the individual’s own moral emotions. As clearness and distinctness of the conception of an object easily produces the belief in its truth, so the intensity of a moral emotion makes him who feels it disposed to objectivise the moral estimate to which it gives rise, in other words, to assign to it universal validity. The enthusiast is more likely than anybody else to regard his judgments as true, and so is the moral enthusiast with reference to his moral judgments. The intensity of his emotions makes him the victim of an illusion.

22 “Besides the ideal king, the personification of Power and Justice, another ideal has played an important part in the formation of early Buddhist ideas regarding their Master…. It was the ideal of a perfectly Wise Man, the personification of Wisdom, the Buddha” (Rhys Davids, Hibbert Lectures on Some Points in the History of Buddhism, p. 141).

23 Sidgwick, op. cit. p. 104.

The presumed objectivity of moral judgments thus being a chimera, there can be no moral truth in the sense in which this term is generally understood. The ultimate reason for this is, that the moral concepts are based upon emotions, and that the contents of an emotion fall entirely outside the category of truth. But it may be true or not that we have a certain emotion, it may be true or not that a given mode of conduct has a tendency to evoke in us moral indignation or moral approval. Hence a moral judgment is true or false according as its subject has or has not that tendency which the predicate attributes to it. If I say that it is wrong to resist evil, and yet resistance to evil has no tendency whatever to call 18forth in me an emotion of moral disapproval, then my judgment is false.

If there are no general moral truths, the object of scientific ethics cannot be to fix rules for human conduct, the aim of all science being the discovery of some truth. It has been said by Bentham and others that moral principles cannot be proved because they are first principles which are used to prove everything else.24 But the real reason for their being inaccessible to demonstration is that, owing to their very nature, they can never be true. If the word “Ethics,” then, is to be used as the name for a science, the object of that science can only be to study the moral consciousness as a fact.25

24 Bentham, Principles of Morals and Legislation, p. 4. Cf. Höffding, Etik, p. 43.

25 Cf. Simmel, Einleitung in die Moralwissenschaft, i. p. iii. sq.; Westermarck, ‘Normative und psychologische Ethik,’ in Dritter Internationaler Congress für Psychologie in München, p. 428 sq.

Ethical subjectivism is commonly held to be a dangerous doctrine, destructive to morality, opening the door to all sorts of libertinism. If that which appears to each man as right or good, stands for that which is right or good; if he is allowed to make his own law, or to make no law at all; then, it is said, everybody has the natural right to follow his caprice and inclinations, and to hinder him from doing so is an infringement on his rights, a constraint with which no one is bound to comply provided that he has the power to evade it. This inference was long ago drawn from the teaching of the Sophists,26 and it will no doubt be still repeated as an argument against any theorist who dares to assert that nothing can be said to be truly right or wrong.

26 Zeller, History of Greek Philosophy, ii. 475.

To this argument may, first, be objected that a scientific theory is not invalidated by the mere fact that it is likely to cause mischief. The unfortunate circumstance that there do exist dangerous things in the world, proves that something may be dangerous and yet true. Another question is whether any scientific truth really is mischievous19 on the whole, although it may cause much discomfort to certain people. I venture to believe that this, at any rate, is not the case with that form of ethical subjectivism which I am here advocating. The charge brought against the Sophists does not at all apply to it. I do not even subscribe to that beautiful modern sophism which admits every man’s conscience to be an infallible guide. If we had to recognise, or rather if we did recognise, as right everything which is held to be right by anybody, savage or Christian, criminal or saint, morality would really suffer a serious loss. But we do not, and we cannot, do so. My moral judgments are my own judgments; they spring from my own moral consciousness; they judge of the conduct of other men not from their point of view but from mine, not with primary reference to their opinions about right and wrong, but with reference to my own. Most of us indeed admit that, when judging of an act, we also ought to take into consideration the moral conviction of the agent, and the agreement or disagreement between his doing and his idea of what he ought to do. But although we hold it to be wrong of a person to act against his conscience, we may at the same time blame him for having such a conscience as he has. Ethical subjectivism covers all such cases. It certainly does not allow everybody to follow his own inclinations; nor does it lend sanction to arbitrariness and caprice. Our moral consciousness belongs to our mental constitution, which we cannot change as we please. We approve and we disapprove because we cannot do otherwise. Can we help feeling pain when the fire burns us? Can we help sympathising with our friends? Are these phenomena less necessary or less powerful in their consequences, because they fall within the subjective sphere of experience? So, too, why should the moral law command less obedience because it forms part of our own nature?

Far from being a danger, ethical subjectivism seems to me more likely to be an acquisition for moral practice. 20Could it be brought home to people that there is no absolute standard in morality, they would perhaps be somewhat more tolerant in their judgments, and more apt to listen to the voice of reason. If the right has an objective existence, the moral consciousness has certainly been playing at blindman’s buff ever since it was born, and will continue to do so until the extinction of the human race. But who does admit this? The popular mind is always inclined to believe that it possesses the knowledge of what is right and wrong, and to regard public opinion as the reliable guide of conduct. We have, indeed, no reason to regret that there are men who rebel against the established rules of morality; it is more deplorable that the rebels are so few, and that, consequently, the old rules change so slowly. Far above the vulgar idea that the right is a settled something to which everybody has to adjust his opinions, rises the conviction that it has its existence in each individual mind, capable of any expansion, proclaiming its own right to exist, and, if need be, venturing to make a stand against the whole world. Such a conviction makes for progress.

 

 

 

 

CHAPTER II

THE NATURE OF THE MORAL EMOTIONS

 

IN the preceding chapter it was asserted, in general terms, that the moral concepts are based on emotions, and the leading arguments to the contrary were met. We shall now proceed to examine the nature of the moral emotions.

These emotions are of two kinds: disapproval, or indignation, and approval. They have in common characteristics which make them moral emotions, in distinction from others of a non-moral character, but at the same time both of them belong to a wider class of emotions, which I call retributive emotions. Again, they differ from each other in points which make each of them allied to certain non-moral retributive emotions, disapproval to anger and revenge, and approval to that kind of retributive kindly emotion which in its most developed form is gratitude. They may thus, on the one hand, be regarded as two distinct divisions of the moral emotions, whilst, on the other hand, disapproval, like anger and revenge, forms a sub-species of resentment, and approval, like gratitude, forms a sub-species of retributive kindly emotion. The following diagram will help to elucidate the matter:—

diagram of emotions

22That moral disapproval is a kind of resentment and akin to anger and revenge, and that moral approval is a kind of retributive kindly emotion and akin to gratitude, are, of course, statements which call for proof. An analysis of all these emotions, and a detailed study of the causes which evoke them, will, I hope, bear out the correctness of my classification. In this connection only the analysis can be attempted. The study of causes will be involved in the treatment of the subjects of moral judgments.

Resentment may be described as an aggressive attitude of mind towards a cause of pain. Anger is sudden resentment, in which the hostile reaction against the cause of pain is unrestrained by deliberation. Revenge, on the other hand, is a more deliberate form of non-moral resentment, in which the hostile reaction is more or less restrained by reason and calculation.1 It is impossible, however, to draw any distinct limit between these two types of resentment, as also to discern where an actual desire to inflict pain comes in. In its primitive form, anger, even when directed against a living being, contains a vehement impulse to remove the cause of pain without any real desire to produce suffering.2 Anger is strikingly shown by many fish, and notoriously by sticklebacks when their territory is invaded by other sticklebacks. In such circumstances of provocation the whole animal changes colour, and, darting at the trespasser, shows rage and fury in every movement;3 but we can hardly believe that any idea of inflicting pain is present to its mind. As we proceed still lower down the scale of animal life we find the conative element itself gradually dwindle away until nothing is left but mere reflex action.

1 Cf. Ribot, Psychology of the Emotions, p. 220 sqq.

2 There are some good remarks on this in Mr. Hiram Stanley’s Studies in the Evolutionary Psychology of Feeling, p. 138 sq.

3 Romanes, Animal Intelligence, p. 246 sqq.

That the fury of an injured animal turns against the real or assumed cause of its injury is a matter of notoriety, and everybody knows that the same is the case with the 23anger of a child. No doubt, as Professor Sully observes, “hitting out right and left, throwing things down on the floor and breaking them, howling, wild agitated movements of the arms and whole body, these are the outward vents which the gust of childish fury is apt to take.”4 But, on the other hand, we know well enough that Darwin’s little boy, who became a great adept at throwing books and sticks at any one who offended him,5 was in this respect no exceptional child. Towards the age of one year, according to M. Perez, children “will beat people, animals, and inanimate objects if they are angry with them; they will throw their toys, their food, their plate, anything, in short, that is at hand, at the people who have displeased them.”6 That a similar discrimination characterises the resentment of a savage is a fact upon which it is necessary to dwell at some length for the reason that it has been disputed, and because there are some seeming anomalies which require an explanation.

4 Sully, Studies in Childhood, p. 232 sq.

5 Darwin, ‘Biographical Sketch of an Infant,’ in Mind, ii. 288.

6 Perez, First Three Years of Childhood, p. 66 sq.

In a comprehensive work,7 Dr. Steinmetz has made the feeling of revenge the object of a detailed investigation, which cannot be left unnoticed. The ultimate conclusions at which he has arrived are these: Revenge is essentially rooted in the feeling of power and superiority. It arises consequently upon the experience of injury, and its aim is to enhance the “self-feeling” which has been lowered or degraded by the injury suffered. It answers this purpose best if it is directed against the aggressor himself, but it is not essential to it that it should take any determinate direction, for, per se, and originally, it is “undirected.”8

7 Ethnologische Studien zur ersten Entwicklung der Strafe.

8 Strictly speaking, this theory is not new. Dr. Paul Rée, in his book Die Entstehung des Gewissens, has pronounced revenge to be a reaction against the feeling of inferiority which the aggressor impresses upon his victim. The injured man, he says (ibid. p. 40) is naturally reluctant to feel himself inferior to another man, and consequently strives, by avenging the aggression, to show himself equal or even superior to the aggressor. A similar view was previously expressed by Schopenhauer (Parerga und Paralipomena, ii. 475 sq.). But Dr. Steinmetz has elaborated his theory with an independence and fulness which make any question of priority quite insignificant.

24We are told, in fact, that the first stage through which revenge passed within the human race was characterised by a total, or almost total, want of discrimination. The aim of the offended man was merely to raise his injured “self-feeling” by inflicting pain upon somebody else, and his savage desire was satisfied whether the man on whom he wreaked his wrath was guilty or innocent.9 No doubt, there were from the outset instances in which the offender himself was purposely made the victim, especially if he was a fellow-tribesman; but it was not really due to the feeling of revenge if the suffering was inflicted upon him, in preference to others. Even primitive man must have found out that vengeance directed against the actual culprit, besides being a strong deterrent to others, was a capital means of making a dangerous person harmless. However, Dr. Steinmetz adds, these advantages should not be overestimated, as even indiscriminate revenge has a deterring influence on the malefactor.10 In early times, then, vengeance, according to Dr. Steinmetz, was in the main “undirected.”

9 Steinmetz, op. cit. i. 355, 356, 359, 561.

10 Ibid. i. 362.

At the next stage it becomes, he says, somewhat less indiscriminate. A proper victim is sought for even in cases of what we should call natural death, which the savage generally attributes to the ill-will of some foe skilled in sorcery;11 though indeed Dr. Steinmetz doubts whether in such cases the unfortunate sufferer is really supposed to have committed the deed imputed to him.12 At all events, a need is felt of choosing somebody for a victim, and “undirected” vengeance gradually gives way to “directed” vengeance. A rude specimen of this is the blood-feud, in which the individual culprit is left out of consideration, but war is carried on against the group of which he is a member, either his family or his tribe. And 25from this system of joint responsibility we finally come, by slow degrees, says Dr. Steinmetz, to the modern conception, according to which punishment should be inflicted upon the criminal and nobody else.13 Dr. Steinmetz believes that the vis agens in this long process of evolution lies in the intellectual development of the human race: man found out more and more distinctly that the best means of restraining wrongs was to punish a certain person, namely, the wrong-doer.14 On this utilitarian calculation our author lays much stress in the latter part of his investigation; whereas in another place he observes that a revenge which is directed against the offender is particularly apt to remove the feeling of inferiority, by effectually humiliating the hitherto triumphant foe.15

11 Ibid. i. 356 sq.

12 Ibid. i. 359 sq.

13 Steinmetz, op. cit. i. 361.

14 Ibid. i. 358, 359, 361 sq.

15 Ibid. i. 111.

In this historical account the main points of interest are the initial stage of “undirected” vengeance, and the way in which such vengeance gradually became discriminate. If, in primitive times, a man did not care in the least on whom he retaliated an injury, then of course the direction of his vengeance could not be essential to the revenge itself, but would be merely a later appendix to it. The question is, what evidence can Dr. Steinmetz adduce to support his theory? Of primitive man we have no direct experience; no savage people now existing is a faithful representative of him, either physically or mentally. Yet however greatly the human race has changed, primitive man is not altogether dead. Traits of his character still linger in his descendants; and of primitive revenge, we are told, there are sufficient survivals left.16

16 Ibid. i. 364.

Under the heading “Perfectly Undirected Revenge,” Dr. Steinmetz sets out several alleged cases of such so-called survivals17 1. An Indian of the Omaha tribe, who was kicked out of a trading establishment which he had been forbidden to enter, declared in a rage that he would revenge himself for an injury so gross, and, “seeking some object to destroy, he encountered a 26sow and pigs, and appeased his rage by putting them all to death.” 2. The people of that same tribe believe that if a man who has been struck by lightning is not buried in the proper way, and in the place where he has been killed, his spirit will not rest in peace, but will walk about till another person is slain by lightning and laid beside him. 3. At the burial of a Loucheux Indian, the relatives sometimes will cut and lacerate their bodies, or, as sometimes happens, will, “in a fit of revenge against fate,” stab some poor, friendless person who may be sojourning among them. 4. The Navahoes, when jealous of their wives, are apt to wreak their spleen and ill-will upon the first person whom they chance to meet. 5. The Great Eskimo, as it is reported, once after a severe epidemic swore to kill all white people who might venture into their country. 6. The Australian father, whose little child happens to hurt itself, attacks his innocent neighbours, believing that he thus distributes the pain among them and consequently lessens the suffering of the child. 7. The Brazilian Tupis ate the vermin which molested them, for the sake of revenge; and if one of them struck his foot against a stone, he raged over it and bit it, whilst, if he were wounded with an arrow, he plucked it out and gnawed the shaft. 8. The Dacotahs avenge theft by stealing the property of the thief or of somebody else. 9. Among the Tshatrali (Pamir), if a man is robbed of his meat by a neighbour’s dog, he will, in a fit of rage, not only kill the offending dog, but will, in addition, kick his own. 10. In New Guinea the bearers of evil tidings sometimes get knocked on the head during the first outburst of indignation evoked by their news. 11. Some natives of Motu, who had rescued two shipwrecked crews and safely brought them to their home in Port Moresby, were attacked there by the very friends of those they had saved, the reason for this being that the Port Moresby people were angry at the loss of the canoes, and could not bear that the Motuans were happy while they themselves were in trouble. 12. Another story from New Guinea tells us of a man who killed some innocent persons, because he had been disappointed in his plans and deprived of valuable property. 13. Among the Maoris it sometimes happened that the friends of a murdered man killed the first man who came in their way, whether enemy or friend. 14. Among the same people, chiefs who had suffered some loss often used to rob their subjects of property in order to make good the damage. 15. If the son of a Maori is hurt, his maternal relatives, to whose tribe he is considered to belong, come to pillage his father’s house or village. 16. If 27a tree falls on a Kuki his fellows chop it up, and if one of that tribe kills himself by falling from a tree the tree from which he fell is promptly cut down. 17. In some parts of Daghestan, when the cause of a death is unknown, the relatives of the deceased declare some person chosen at random to have murdered him, and retaliate his death upon that person.

17 Ibid. i. 318 sqq.

I have been obliged to enumerate all these cases for the reason that a theory cannot be satisfactorily refuted unless on its own ground. I may confess at once that I scarcely ever saw an hypothesis vindicated by the aid of more futile evidence. The cases 7 and 16 illustrate just the reverse of “undirected” revenge, and, when we take into consideration the animistic beliefs of savages, present little to astonish us. In case 17 the guilt is certainly imputed to somebody at random, but only when the culprit is unknown. Cases 1, 4, 10 and 12 and perhaps also 11, imply that revenge is taken upon an innocent party in a fit of passion; in cases 1 and 12 the offender himself cannot be got at, in case 10 the man who is knocked on the head appears for the moment as the immediate cause of the grief or indignation evoked, while case 11 exhibits envy combined with extreme ingratitude. In case 9 the anger is chiefly directed against the “guilty” dog, and against the “innocent” one evidently by an association of ideas. Cases 8 and 14 illustrate indemnification for loss of property, and in case 8 the thief himself is specifically mentioned first. In case 15 the revenging attack is made upon the property of those people among whom the child lives, and who may be considered responsible for the loss its maternal clan sustains by the injury. Case 6 merely shows the attempt of a superstitious father to lessen the suffering of his child. As regards case 5, Petitot, who has recorded it, says expressly that the white people were supposed to have caused the epidemic by displeasing the god Tornrark.18 Case 2 points to a superstitious belief which is interesting enough in itself, but which, so far as I can see, is without any bearing whatever on the point we are discussing. Case 3 looks like a death-offering. The stabbing of an innocent person is mentioned in connection with, or rather as an alternative to, the self-laceration of the mourners, which last has probably a sacrificial character. Moreover, there is in this case no question of a culprit. In case 13, finally, the idea of sacrifice is very conspicuous. Dr. Steinmetz has borrowed his statement from Waitz, whose account is incomplete. Dieffenbach, the original authority, says that the custom in question was called by the Maori taua tapu, i.e., sacred fight, 28or taua toto, i.e., fight for blood. He describes it as follows:—“If blood has been shed, a party sally forth and kill the first person they fall in with, whether an enemy or belonging to their own tribe; even a brother is sacrificed. If they do not fall in with anybody, the tohunga (that is, the priest) pulls up some grass, throws it into a river, and repeats some incantation. After this ceremony, the killing of a bird, or any living thing that comes in their way, is regarded as sufficient, provided that blood is actually shed. All who participate in such an excursion are tapu, and are not allowed either to smoke or to eat anything but indigenous food.”19 It seems probable that this ceremony was undertaken in order to appease the enraged spirit of the dead,20 and at the same time it may have been intended to refresh the spirit with blood.21 The question, however, is, Why was not his death avenged upon the actual culprit? To this Dr. Steinmetz would answer that the deceased was thought to be indiscriminate in his craving for vengeance.22 But so far as the resentment of the dead is concerned, the “sacred fight” of the Maoris only seems to illustrate the impulsive character of anger. From Dieffenbach’s description of it, it is obvious that the friends of the slain man considered it to be a matter of paramount importance that blood should be shed immediately. If no human being came in their way, an animal was killed, but then an incantation was uttered beforehand. I presume that the reason for this was the terror which the supposed wrath of the dead man’s spirit struck into the living, combined perhaps with the idea that it was in immediate need of fresh blood. The Maoris considered all spirits of the dead to be maliciously inclined towards them,23 and the ghost of a person who had died a violent death was certainly looked upon as especially dangerous. The craving for instantaneous shedding of blood is even more conspicuous in another case which may be appropriately mentioned in this connection. The Aetas of the Philippine Islands, we are told, “do not always 29wait for the death of the afflicted before they bury him. Immediately after the body has been deposited in the grave, it becomes necessary, according to their usages, that his death should be avenged. The hunters of the tribe go out with their lances and arrows to kill the first living creature they meet with, whether a man, a stag, a wild hog, or a buffalo.”24 Dr. Steinmetz himself quotes some other instances from the same group of islands, in which, when a man dies, his nearest kinsmen go out to requite his death by the death of the first man who comes in their way.25 It is worth noticing that the Philippine Islanders have the very worst opinion of their ghosts, and believe that these are particularly bloodthirsty soon after death.26

18 Petitot, Les Grands Esqimaux, p. 207 sq.

19 Dieffenbach, Travels in New Zealand, ii. 127.

20 Cf. ibid. ii. 129.

21 The latter object is suggested by some funeral ceremonies which will be noticed in a following chapter. Among the Dyaks, “a father who lost his child would go out and kill the first man he met, as a funeral ceremony,” believing that he thus provided the deceased with a slave to accompany him to the habitation of souls (Tylor, Primitive Culture, i. 459). Among the Garos, it was formerly the practice, “whenever the death of a great man amongst them occurred, to send out a party of assassins to murder and bring back the head of the first Bengali they met. The victims so immolated would, it was supposed, be acceptable to their gods” (Dalton, Descriptive Ethnology of Bengal, p. 68).

22 Cf. Steinmetz, op. cit. i. 343.

23 Taylor, Te Ika a Maui, p. 221.

24 Earl, Papuans, p. 132.

25 Steinmetz, op. cit. i. 335 sq.

26 Blumentritt, ‘Der Ahnencultus der Malaien des Philippinen-Archipels’ in Mittheilungen der Geogr. Gesellsch. in Wien, xxv. 166 sqq. De Mas, Informe sobre el estado de las Islas filipinas en 1842, Orijen, &c. p. 15.

Dr. Steinmetz also refers to some statements according to which, among certain Australian tribes, the relatives of a person who dies avenge his death by killing an innocent man.27 But in these cases the avenged death, though “natural” according to our terminology, is, in the belief of the savages, caused by sorcery, and the revenge is not so indiscriminate as Dr. Steinmetz seems to assume. Among the Wellington tribe, as appears from a statement which he quotes himself, it is the sorcerer’s life that must be taken for satisfaction.28 In New South Wales, after the dead man has been interrogated as to the cause of his death, his kinsmen are resolute in taking vengeance, if they “imagine that they have got sure indications of the perpetrator of the wrong.”29 Among the Central Australian natives, “not infrequently the dying man will whisper in the ear of a Railtchawa, or medicine man, the name of the man whose magic is killing him,” and if this be not done, “there is no difficulty, by some other method, of fixing sooner or later on the guilty party”; but only after the culprit has been revealed by the medicine man is it decided by a council of the old men whether an avenging party is to be arranged or not.30 Among the aborigines of West Australia, the survivors are “pretty busy in seeking out” the sorcerer who is supposed to have caused the death of their friend.31

27 Steinmetz, op. cit. i. 337 sq.

28 Hale, U.S. Exploring Expedition Vol. VI.—Ethnography and Philology, p. 115; quoted by Steinmetz, op. cit. i. 337.

29 Fraser, Aborigines of New South Wales, p. 86.

30 Spencer and Gillen, Native Tribes of Central Australia, p. 476 sq.

31 Calvert, Aborigines of Western Australia, p. 20 sq.

30To sum up: all the facts which Dr. Steinmetz has adduced as evidence for his hypothesis of an original stage of “undirected” revenge only show that, under certain circumstances, either in a fit of passion, or when the actual offender is unknown or out of reach, revenge may be taken on an innocent being, wholly unconnected with the inflicter of the injury which it is sought to revenge. There is such an intimate connection between the experience of injury and the hostile reaction by which the injured individual gives vent to his passion, that the reaction does not fail to appear even when it misses its aim. Anger, as Seneca said, “does not rage merely against its object, but against every obstacle which it encounters on its way.”32 Many infants, when angry and powerless to hurt others, “strike their heads against doors, posts, walls of houses, and sometimes on the floor.”33 Well known are the “amucks” of the Malays, in which “the desperado assails indiscriminately friend and foe,” and, with dishevelled hair and frantic look, murders or wounds all whom he meets without distinction.34 But all this is not revenge; it is sudden anger or blind rage. Nor is it revenge in the true sense of the word if a person who has been humiliated by his superior retaliates on those under him. It is only the outburst of a wounded “self-feeling,” which, when not directed against its proper object, can afford no adequate consolation to a revengeful man.

32 Seneca, De ira, iii. 1.

33 Stanley Hall, ‘A Study of Anger,’ in American Jour. of Psychology, x. 554.

34 Crawfurd, History of the Indian Archipelago, i. 67. Cf. Ellis, ‘The Amok of the Malays,’ in Jour. of Mental Science, xxxix. 325 sqq. In the Andaman Islands, it is not uncommon for a man “to vent his ill-temper, or show his resentment at any act, by destroying his own property as well as that of his neighbours” (Man, ‘Aboriginal Inhabitants of the Andaman Islands,’ in Jour. Anthr. Inst. xii. 111). Among the Kar Nicobarese, when a quarrel takes place, in serious cases, a man will probably burn his own house down (Kloss, In the Andamans and Nicobars, p. 310). But in these instances it is not certain whether the offended party destroys his own property in blind rage, or with some definite object in view.

In the institution of the blood-feud some sort of collective responsibility is usually involved.35 If the 31offender is of another family than his victim, some of his relatives may have to expiate his deed.36 If he belongs to another clan, the whole clan may be held responsible for it.37 And if he is a member of another tribe, the vengeance may be wreaked upon his fellow-tribesmen indiscriminately.38

35 Cf. Post, Anfänge des Staats- und Rechtsleben, p. 180; Rée, op. cit. p. 49 sq.; Steinmetz, op. cit. i. ch. vi.

36 Besides the authorities quoted infra, see Leuschner, in Steinmetz, Rechtsverhältnisse von eingeborenen Völkern in Afrika und Ozeanien, (Bakwiri); ibid. p. 49 (Banaka and Bapuku); Rautanen, ibid. p. 341 (Ondonga); Walter, ibid. p. 390 (natives of Nossi-Bé and Mayotte, near Madagascar); von Langsdorf, Voyages and Travels, i. 132 (Nukahivans); Forbes, A Naturalist’s Wanderings in the Eastern Archipelago, p. 473 (Timorese); Foreman, Philippine Islands, p. 213 (Igorrotes of Luzon); Kovalewsky, in Jour. Anthr. Inst. xxv. 113 (people of Daghestan); Idem, Coutume contemporaine et loi ancienne, p. 248 sq. (Ossetes); Merzbacher, Aus den Hochregionen des Kaukasus, ii. 51 (Khevsurs).

37 Bridges, in A Voice for South America, xiii. 207 (Fuegians). Dorsey, ‘Omaha Sociology,’ in Ann. Rep. Bur. Ethn. iii. 369. Ridley, in Jour. Anthr. Inst. ii. 268 (Kamilaroi in Australia). Godwin-Austen, ibid. ii. 394 (Garo Hill tribes).

38 von Martins, Beiträge zur Ethnographie Amerika’s, i. 127 sqq. (Brazilian Indians). Crawfurd, op. cit. iii. 124 (natives of Celebes). Kohler, in Zeitschr. f. vgl. Rechtswiss. vii. 383 (Goajiros of Columbia). Ibid. vii. 376 (Papuans of New Guinea). Curr, The Australian Race, i. 70. Scaramucci and Giglioli, ‘Notizie sui Danakil,’ in Archivio per l’antropologia e la etnologia, xiv. 39. Leuschner, in Steinmetz, Rechtsverhältnisse, p. 23 (Bakwiri). Ibid. p. 49 (Banaka and Bapuku).

“Among the Fuegians,” says Mr. Bridges, “etiquette and custom require that all the relatives of a murdered person should … visit their displeasure upon every connection of the manslayers, each personally.” The avengers of blood would by no means be satisfied with a party of natives if they should actually deliver up into their hands a manslayer, or kill him themselves, “but would yet exact from all the murderer’s friends tribute or infliction of injuries with sticks or stones.”39 Among the Indians of British Columbia and Vancouver Island, “grudges are handed down from father to son for generations, and friendly relations are never free from the risk of being interrupted.”40 Among the Greenlanders, the revenge for a murder generally “costs the executioner himself, his children, cousins, or other relatives their lives; or if these are inaccessible, some other acquaintance in the neighbourhood.”41 Among the Maoris, blood-revenge might be taken on any relative of the homicide, “no matter how distant.”42 In Tana, 32revenge “is often sought in the death of the brother, or some other near relative of the culprit.”43 Among the Kabyles, “la vengeance peut porter sur chacun des membres de la famille du meurtrier, quel qu’il soit.”44 The Bedouins, according to Burckhardt, “claim the blood not only from the actual homicide, but from all his relations; and it is these claims that constitute the right of thár, or the blood-revenge.”45 Among the people of Ibrim, in Nubia, on the other hand, the same traveller observes, “it is not considered as sufficient to retaliate upon any person within the fifth degree of consanguinity, as among the Bedouins of Arabia; only the brother, son, or first cousin can supply the place of the murderer.”46 Traces of collective responsibility in connection with blood-revenge are found among the Hebrews.47 It has prevailed, or still prevails, among the Japanese48 and Coreans,49 the Persians50 and Hindus,51 the ancient Greeks52 and Teutons.53 It was a rule among the Welsh54 and the Scotch in former days,55 and is so still in Corsica,56 Albania,57 and among some of the Southern Slavs.58 In Montenegro, if a homicide who cannot be caught himself has no relatives, revenge is sometimes taken on some inhabitant of the village or district to which he belongs, or even on a person who only is of the same religion and nationality as the murderer.59 In Albania, under similar circumstances, the victim may be a person who has had nothing else to do with the offender than that he has perhaps once been speaking to him.60

39 Bridges, in South American Missionary Magazine, xiii. 151 sqq.

40 Macfie, Vancouver Island and British Columbia, p. 470.

41 Cranz, History of Greenland, i. 178.

42 Shortland, Traditions and Superstitions of the New Zealanders, p. 213 sq. Cf. ibid. p. 218 sq.

43 Turner, Samoa, p. 317.

44 Hanoteau and Letourneux, La Kabylie, iii. 61.

45 Burckhardt, Notes on the Bedouins and Wahábys, p. 85. See, also, Layard, Discoveries in the Ruins of Nineveh and Babylon, p. 306; Lane, Manners and Customs of the Modern Egyptians, i. 133.

46 Burckhardt, Travels in Nubia, p. 128.

47 2 Samuel, xiv. 7. Cf. ibid. xxi.

48 Dautremer, ‘The Vendetta or Legal Revenge in Japan,’ in Trans. Asiatic Soc. Japan, xiii. 84.

49 Griffis, Corea, p. 227.

50 Spiegel, Erânische Alterthumskunde, iii. 687. Polak, Persien, ii. 96.

51 Dubois, Description of the Character, Manners, and Customs of the People of India, p. 195.

52 Leist, Alt-arisches Jus Gentium, p. 424.

53 Gotlands-Lagen, 13.

54 Walter, Das alte Wales, p. 138.

55 Mackintosh, History of Civilisation in Scotland, ii. 279.

56 Gregorovius, Wanderings in Corsica, i. 179.

57 Gopčević, Oberalbanien und seine Liga, p. 324 sqq.

58 Miklosich, ‘Die Blutrache bei den Slaven,’ in Denkschriften der kaiserl. Akademie d. Wissensch. Philos.-histor. Classe, Vienna, xxxvi. 131, 146 sq. Krauss, Sitte und Brauch der Südslaven, p. 39.

59 Lago, Memorie sulla Dalmazia, ii. 90.

60 Gopčević, op. cit. p. 325.

There is no difficulty in explaining these facts. The following statement made by Mr. Romilly with reference 33to the Solomon Islanders has, undoubtedly, a much wider application:—“In the cases which call for punishment, the difficulties in the way of capturing the actual culprits are greater than any one, who has not been engaged in this disagreeable work, can imagine.”61 Though it may happen that a manslayer is abandoned by his own people,62 the system of blood-revenge more often seems to imply, not only that all the members of a group are engaged, more or less effectually, in the act of revenge, but that they mutually protect each other against the avengers. A homicide frequently provokes a war,63 in which family stands against family, clan against clan, or tribe against tribe. In such cases the whole group take upon themselves the deed of the perpetrator, and any of his fellows, because standing up for him, becomes a proper object of revenge. The guilt extends itself, as it were, in the eyes of the offended party. So, also, any person who lives on friendly terms with the offender, or is supposed to sympathise with him, is liable to arouse a feeling of resentment, and may consequently, in extreme cases, have to expiate his crime. Moreover, because of the close relationship which exists between the members of the same group, the actual culprit will be mortified by any successful attack that the avengers make on his people, and, if he be dead, its painful and humiliating effects may still be supposed to reach his spirit. “When the offender himself is beyond the reach of direct attack,” says Mr. Wilkins, “it is not beneath a Bengali’s view to try to wound him through his children or other members of his family.”64 Among the South Slavonians, in a similar case, the avengers of blood first attempt to kill the father, brother, 34or grown-up son of the murderer, “so as to inflict upon him a very heavy and painful loss”; and only when this has been tried in vain, are more distant relatives attacked.65 The Bedouins of the Euphrates even prefer killing the chief man among the murderer’s relations within the second degree to taking his own life, on the principle, “You have killed my cousin, I will kill yours.”66 And the Californian Nishinam “consider that the keenest and most bitter revenge which a man can take is, not to slay the murderer himself, but his dearest friend.”67 In these instances vengeance is exacted with reference rather to the loss suffered by the survivors than to the injury committed against the murdered man, the culprit being subjected to a deprivation similar to that which he has inflicted himself. So, also, among the Marea, if a commoner is slain by a nobleman, his death is not avenged directly on the slayer, but on some commoner who is subservient to him.68 If, again, among the Quianganes of Luzon, a noble is killed by a plebeian, another nobleman, of the kin of the murderer, must be killed, while the murderer himself is ignored.69 If, among the Igorrotes, a man slays a woman of another house, her nearest kinsman endeavours to slay a woman belonging to the household of the homicide, but to the guilty man himself he does nothing.70 In all these cases the culprit is not lost sight of; vengeance is invariably wreaked upon somebody connected with him. But any consideration of guilt or innocence is overshadowed by the blind subordination to that powerful rule which requires strict equivalence between injury and punishment—an eye for an eye and a tooth for a tooth—and which, when strained to the utmost, cannot allow the life of a man to be sacrificed for that of a woman, or the life of a nobleman to be 35sacrificed for that of a commoner, or the life of a commoner to expiate the death of a noble. This rule, as we shall see later on, is not suggested by revenge itself, but is due to the influence of other factors which intermingle with this feeling, and help, with it, to determine the action.

61 Romilly, Western Pacific and New Guinea, p. 81. Cf. Friedrichs, ‘Mensch und Person,’ in Das Ausland, 1891, p. 299.

62 See, e.g., Scott Robertson, The Káfirs of the Hindu-Kush, p. 440.

63 Dr. Post’s statement (Die Geschlechtsgenossenschaft der Urzeit, p. 156) that the blood-revenge “characterisirt sich … ganz und gar als ein Privatkrieg zwischen zwei Geschlechtsgenossenschaften,” however, is not quite correct in this unqualified form, as may be seen, e.g., from von Martius’s description of the blood-revenge of the Brazilian Indians, op. cit. i. 127 sqq.

64 Wilkins, Modern Hinduism, p. 411.

65 Krauss, op. cit. p. 39.

66 Blunt, Bedouin Tribes of the Euphrates, ii. 206 sq.

67 Powers, Tribes of California, p. 320.

68 Munzinger, Ostafrikanische Studien, p. 243.

69 Blumentritt, quoted by Spencer, Principles of Ethics, i. 370 sq.

70 Jagor, Travels in the Philippines, p. 213.

Nevertheless, the strong tendency to discrimination which characterises resentment, is not wholly lost even behind the veil of common responsibility. Mr. Howitt has come to the conclusion that, among the Australian Kurnai, if a homicide has been committed by an alien tribe, the feud “cannot be satisfied but by the death of the offender,” although it is carried on, not against him alone, but against the whole group of which he is a member.71 It is only “if they fail to secure the guilty person” that the natives of Western Victoria consider it their duty to kill one of his nearest relatives.72 Concerning the West Australian aborigines, Sir George Grey observes, “The first great principle with regard to punishments is, that all the relations of a culprit, in the event of his not being found, are implicated in his guilt; if, therefore, the principal cannot be caught, his brother or father will answer nearly as well, and failing these, any other male or female relative, who may fall into the hands of the avenging party.”73 Among the Papuans of the Tami Islands, revenge may be taken on some other member of the murderer’s family only if it is absolutely impossible to catch the guilty person himself.74 That the blood-revenge is in the first place directed against the malefactor, and against some relative of his only if he cannot be found out, is expressly stated with reference to various peoples in different parts of the world;75 and it is 36probable that much more to the same effect might have been discovered, if the observers of savage life had paid more attention to this particular aspect of the matter. Among the Fuegians, the most serious riots take place when a manslayer, whom some one wishes to punish, takes refuge with his relations or friends.76 Von Martius remarks of the Brazilian Indians in general that, even when an intertribal war ensues from the committing of homicide, the nearest relations of the killed person endeavour, if possible, to destroy the culprit himself and his family.77 With reference to the Creek Indians, Mr. Hawkins says that though, if a murderer flies and cannot be caught, they will take revenge upon some innocent individual belonging to his family, they are “generally earnest of themselves, in their endeavours to put the guilty to death.”78 The same is decidedly the case in those parts of Morocco where the blood-feud still prevails.

71 Fison and Howitt, Kamilaroi and Kurnai, p. 221.

72 Dawson, Australian Aborigines, p. 71.

73 Grey, Journals of Expeditions, ii. 239.

74 Bamler, quoted by Kohler, in Zeitschr. f. vergl. Rechtswiss. xiv. 380.

75 Riedel, De sluik- en kroesharige rassen tusschen Selebes en Papua, p. 434 (natives of Wetter). Chalmers, Pioneering in New Guinea, p. 179. Kohler, in Zeitschr. f. vergl. Rechtswiss. xiv. 446 (some Marshall Islanders). Merker, quoted by Kohler, ibid. xv. 53 sq. (Wadshagga). Brett, Indian Tribes of Guiana, p. 357. Bernau, Missionary Labours in British Guiana, p. 57. Dall, Alaska, p. 416. Boas, ‘The Central Eskimo,’ in Ann. Rep. Bur. Ethn. vi. 582. Jacob, Leben der vorislâmischen Beduinen, p. 144. Kovalewsky, Coutume contemporaine, p. 248 (Ossetes). Popović, Recht und Gericht in Montenegro, p. 69; Lago, op. cit. ii. 90 (Montenegrines). Miklosich, loc. cit. p. 131 (Slavs). Wilda, Strafrecht der Germanen, p. 173 sq. (ancient Teutons).

76 Hyades and Deniker, Mission scientifique du Cap Horn, vii. 375.

77 von Martius, op. cit. i. 128.

78 Hawkins, in Trans. American Ethn. Soc. iii. 67.

Not only has Dr. Steinmetz failed to prove his hypothesis that revenge was originally “undirected,” but this hypothesis is quite opposed to all the most probable ideas we can form with regard to the revenge of early man. For my own part I am convinced that we may obtain a good deal of knowledge about the primitive condition of the human race, but not by studying modern savages only. I have dealt with this question at some length in another place,79 and wish now merely to point out that those general physical and psychical qualities which are not only common to all races of mankind, but which are shared by them with the animals most allied to man, may be assumed to have been present also in the earlier stages of 37human development. Now, concerning revenge among animals, more especially among monkeys, many anecdotes have been told by trustworthy authorities, and in every case the revenge has been clearly directed against the offender.

79 History of Human Marriage, p. 3 sqq.

On the authority of a zoologist “whose scrupulous accuracy was known to many persons,” Darwin relates the following story:—“At the Cape of Good Hope an officer had often plagued a certain baboon, and the animal, seeing him approaching one Sunday for parade, poured water into a hole and hastily made some thick mud, which he skilfully dashed over the officer as he passed by, to the amusement of many bystanders. For long afterwards the baboon rejoiced and triumphed whenever he saw his victim.”80 Prof. Romanes considers this to be a good instance of “what may be called brooding resentment deliberately preparing a satisfactory revenge.”81 This, I think, is to put into the statement somewhat more than it really contains; but at all events it records a case of revenge, in the sense in which Dr. Steinmetz uses the word. The same may be said of other instances mentioned by so accurate observers as Brehm and Rengger in their descriptions of African and American monkeys, and of various examples of resentment in elephants and even in camels.82 According to Palgrave, the camel possesses the passion of revenge, and in carrying it out “shows an unexpected degree of far-thoughted malice, united meanwhile with all the cold stupidity of his usual character.” The following instance, which occurred in a small Arabian town, deserves to be quoted, since it seems to have escaped the notice of the students of animal psychology. “A lad of about fourteen had conducted a large camel, laden with wood, from that very village to another at half an hour’s distance or so. As the 38animal loitered or turned out of the way, its conductor struck it repeatedly, and harder than it seems to have thought he had a right to do. But not finding the occasion favourable for taking immediate quits, it ‘bode its time’; nor was that time long in coming. A few days later the same lad had to re-conduct the beast, but unladen, to his own village. When they were about half way on the road, and at some distance from any habitation, the camel suddenly stopped, looked deliberately round in every direction, to assure itself that no one was within sight, and, finding the road far and near clear of passers-by, made a step forward, seized the unlucky boy’s head in its monstrous mouth, and lifting him up in the air flung him down again on the earth with the upper part of his skull completely torn off, and his brains scattered on the ground.”83 We are also told that elephants, though very sensitive to insults, are never provoked, even under the most painful or distracting circumstances, to hurt those from whom they have received no harm.84 Sometimes animals show a remarkable degree of discrimination in finding out the proper object for their resentment. It is hardly surprising to read that a baboon, which was molested in its cage with a stick, tried to seize, not the stick, but the hand of its tormentor.85 More interesting is the “revenge” which an elephant at Versailles inflicted upon a certain artist who had employed his servant to tease the animal by making a feint of throwing apples into its mouth:—“This conduct enraged the elephant; and, as if it knew that the painter was the cause of this teasing impertinence, instead of attacking the servant, it eyed the master, and squirted at him from its trunk such a quantity of water as spoiled the paper on which he was drawing.”86

80 Darwin, Descent of Man, p. 69.

81 Romanes, Animal Intelligence, p. 478.

82 Brehm, Thierleben, i. 156. Idem, From North Pole to Equator, p. 305. Rengger (Naturgeschichte der Säugethiere von Paraguay, p. 52) gives the following information about the Cay:—“Fürchtet er … seinen Gegner, so nimmt er seine Zuflucht zur Verstellung, und sucht sich erst dann an ihm zu rächen, wenn er ihn unvermuthet überfallen kann. So hatte ich einen Cay, welcher mehrere Personen die ihn oft auf eine grobe Art geneckt hatten, in einem Augenblicke lass, wo sie im besten Vernehmen mit ihm zu sein glaubten. Nach verübter That kletterte er schnell auf einen hohen Balken, wo man ihm nicht beikommen konnte, und grinste schadenfroh den Gegenstand seiner Rache an.” See, moreover, Watson, The Reasoning Power in Animals, especially pp. 20, 21, 24, 156 sq.; Romanes, op. cit. p. 387 sqq.; but also Morgan, Animal Life and Intelligence, p. 401 sq.

83 Palgrave, Narrative of a Year’s Journey through Central and Eastern Arabia, i. 40.

84 Watson, op. cit. p. 26 sq.

85 Aas, Sjaeleliv og intelligens hos Dyr, i. 72.

86 Smellie, Philosophy of Natural History, i. 448.

I find it inconceivable that anybody, in the face of such facts, could still believe that the revenge of early man was at first essentially indiscriminating, and became gradually discriminating from considerations of social expediency. But by this I certainly do not mean to deny that violation of the “self-feeling” is an extremely common and powerful incentive to resentment. It is so 39among savage87 and civilised men alike; even dogs and monkeys get angry when laughed at. Nothing more easily rouses in us anger and a desire for retaliation, nothing is more difficult to forgive, than an act which indicates contempt, or disregard of our feelings. Long after the bodily pain of a blow has ceased, the mental suffering caused by the insult remains and calls for vengeance. This is an old truth often told. According to Seneca, “the greater part of the things which enrage us are insults, not injuries.”88 Plutarch observes that, though different persons fall into anger for different reasons, yet in nearly all of them is to be found the idea of their being despised or neglected.89 “Contempt,” says Bacon, “is that which putteth an edge upon anger, as much, or more, than the hurt itself.”90 But, indeed, there is no need to resort to different principles in order to explain the resentment excited by different kinds of pain. In all cases revenge implies, primordially and essentially, a desire to cause pain or destruction in return for hurt suffered, whether the hurt be bodily or mental; and, if to this impulse is added a desire to enhance the wounded “self-feeling,” that does not interfere with the true nature of the primary feeling of revenge. There are genuine specimens of resentment without the co-operation of self-regarding pride;91 and, on the other hand, the reaction of the wounded “self-feeling” is not necessarily, in the first place, concerned with the infliction of pain. If a person has written a bad book which is severely criticised, he may desire to repair his reputation by writing a better book, not by humiliating his critics; and if he attempts the latter rather than the former, he does so, not merely in order to enhance his “self-feeling,” 40but because he is driven on by revenge. Dr. Boas tells us that the British Columbia Indian, when his feelings are hurt, sits down or lies down sullenly for days without partaking of food, and that, “when he rises his first thought is, not how to take revenge, but to show that he is superior to his adversary.92

87 Turner, ‘Ethnology of the Ungava District,’ in Ann. Rep. Bur. Ethn. xi. 270 (Hudson Bay Indians). Georgi, Russia, iii. 205 (Aleuts). Sarasin, Ergebnisse naturwiss. Forschungen auf Ceylon, iii. 537 (Veddahs). von Wrede, Reise in Ḥadhramaut, p. 157 (Bedouins). Winterbottom, Native Africans in the Neighbourhood of Sierra Leone, i. 211.

88 Seneca, De ira, iii. 28.

89 Plutarch, De cohibenda ira, 12.

90 Bacon, ‘Essay LVII. Of Anger,’ in Essays, p. 514.

91 Bain, Emotions and the Will, p. 177.

92 Boas, First General Report on the Indians of British Columbia, read at the Newcastle-upon-Tyne meeting of the British Association, 1889, p. 19.

In the feeling of gratification which results from successful resentment, the pleasure of power or superiority also may form a very important element, but it is never the exclusive element.93 As the satisfaction of every desire is accompanied by pleasure, so the satisfaction of the desire involved in resentment gives a pleasure by itself. The angry or revengeful man who succeeds in what he aims at, delights in the pain he inflicts for the very reason that he desired to inflict it.

93 Cf. Ribot, op. cit. p. 221 sq.

Revenge thus only forms a link in a chain of emotional phenomena, for which “non-moral resentment” may be used as a common name. In this long chain there is no missing link. Anger without any definite desire to cause suffering, anger with such a desire, more deliberate resentment—all these phenomena are so inseparably connected with each other that no one can say where one passes into another. Their common characteristic is that they are mental states marked by an aggressive attitude towards the cause of pain.

As to their origin, the evolutionist can hardly entertain a doubt. Resentment, like protective reflex action, out of which it has gradually developed, is a means of protection for the animal. Its intrinsic object is to remove a cause of pain, or, what is the same, a cause of danger. Two different attitudes may be taken by an animal towards another which has made it feel pain: it may either shun or attack its enemy. In the former case its action is prompted by fear, in the latter by anger, and it depends on the circumstances which of these emotions is the actual 41determinant. Both of them are of supreme importance for the preservation of the species, and may consequently be regarded as elements in the animal’s mental constitution which have been acquired by means of natural selection in the struggle for existence. We have already noted that, originally, the impulse of attacking the enemy could hardly have been guided by a representation of the enemy as suffering. But, as a successful attack is necessarily accompanied by such suffering, the desire to produce it naturally, with the increase of intelligence, entered as an important element in resentment. The need for protection thus lies at the foundation of resentment in all its forms.

This view is not new. More than one hundred and fifty years before Darwin, Shaftesbury wrote of resentment in these words:—“Notwithstanding its immediate aim be indeed the ill or punishment of another, yet it is plainly of the sort of those [affections] which tend to the advantage and interest of the self-system, the animal himself; and is withal in other respects contributing to the good and interest of the species.”94 A similar opinion is expressed by Butler, according to whom the reason and end for which man was made liable to anger is, that he might be better qualified to prevent and resist violence and opposition, while deliberate resentment “is to be considered as a weapon, put into our hands by nature, against injury, injustice, and cruelty.”95 Adam Smith, also, believes that resentment has “been given us by nature for defence, and for defence only,” as being “the safeguard of justice and the security of innocence.”96 Exactly the same view is taken by several modern evolutionists as regards the “end” of resentment, though they, of course, do not rest contented with saying that this feeling has been given us by nature, but try to explain in what way it has developed. “Among members of the same species,” says Mr. Herbert Spencer, “those individuals which have not, in any considerable degree, resented aggressions, must have ever tended to disappear, and to have left behind those which have with some effect made counter-aggressions.”97 Mr. 42Hiram Stanley, too, quoting Junker’s statement regarding the pigmies of Africa, that “they are much feared for their revengeful spirit,”98 observes that, “other things being equal, the most revengeful are the most successful in the struggle for self-conservation and self-furtherance.”99 This evolutionist theory of revenge has been criticised by Dr. Steinmetz, but in my opinion with no success. He remarks that the feeling of revenge could not have been of any use to the animal, even though the act of vengeance might have been useful.100 But this way of reasoning, according to which the whole mental life would be excluded from the influence of natural selection, is based on a false conception of the relation between mind and body, and, ultimately, on a wrong idea of cause and effect.

94 Shaftesbury, ‘Inquiry concerning Virtue or Merit,’ ii. 2. 2, in Characteristicks, ii. 145.

95 Butler, ‘Sermon VIII.—Upon Resentment,’ op. cit. p. 457.

96 Adam Smith, Theory of Moral Sentiments, p. 113.

97 Spencer, Principles of Ethics, i. 361.

98 Junker, Travels in Africa during the Years 1882–1886, p. 85.

99 Hiram Stanley, op. cit. p. 180. Cf. also Guyau, Esquisse d’une Morale sans obligation ni sanction, p. 162 sq.

100 Steinmetz, Ethnol. Studien, &c. i. 135.

From non-moral resentment we shall pass to the emotion of moral indignation. That this is closely connected with anger is indicated by language itself: we may feel indignant on other than moral grounds, and we may feel “righteous anger.” The relationship between these emotions is also conspicuous in their outward expressions, which, when the emotion is strong enough, present similar characteristics. When possessed with strong moral indignation, a person looks as if he were angry,101 and so he really is, in the wider sense of the term. This relationship has not seldom been recognised by moralists, though it has more often been forgotten. Some two thousand years ago Polybius wrote:—“If a man has been rescued or helped in an hour of danger, and, instead of showing gratitude to his preserver, seeks to do him harm, it is clearly probable that the rest will be displeased and offended with him when they know it, sympathising with their neighbour and imagining themselves in his case. Hence arises a notion in every breast of the meaning and theory of duty, which is in fact the beginning and end of justice.”102 Hartley regarded resentment and gratitude 43as “intimately connected with the moral sense.”103 Adam Smith made the resentment of “the impartial spectator” a corner-stone of his theory of the moral sentiments.104 Butler found the essential difference between sudden and deliberate anger to consist in this, that the “natural proper end” of the latter is “to remedy or prevent only that harm which implies, or is supposed to imply, injury or moral wrong.”105 And to Stuart Mill, the sentiment of justice, at least, appeared to be derived from “the animal desire to repel or retaliate a hurt or damage to oneself, or to those with whom one sympathises.”106

101 Notice, for instance, Michelangelo’s Moses.

102 Polybius, Historiae, vi. 6.

103 Hartley, Observations on Man, i. 520.

104 Adam Smith, op. cit. passim.

105 Butler, op. cit. p. 458.

106 Stuart Mill, Utilitarianism, p. 79.

Moral indignation, or disapproval, like non-moral resentment, is a reactionary attitude of mind directed towards the cause of inflicted pain. In a subsequent chapter we shall see that both are in a similar way determined by the answer given to the question, What is the cause of the pain?—a fact which, whilst strongly confirming their affinity, throws light upon some of the chief characteristics of the moral consciousness. Nay, moral indignation resembles non-moral resentment even in this respect that, in various cases, the aggressive reaction turns against innocent persons who did not commit the injury which gave rise to it. The collective responsibility assumed in certain types of blood-revenge is an evidence of this in so far as such revenge is not merely a matter of individual practice, but has the sanction of custom. And even punishment, which, in the strict sense of the term, is a more definite expression of public, or moral, indignation than the custom of private retaliation, is often similarly indiscriminate.

Like revenge, and for similar reasons, punishment sometimes falls on a relative of the culprit in cases when he himself cannot be caught. In Fiji, says Mr. Williams, “the virtue of vicarious suffering is recognised.” It once happened that a warrior left his charged musket so 44carelessly that it went off and killed and wounded some individuals, whereupon he fled himself. His case was judged worthy of death by the chiefs of the tribe, and the offender’s aged father was in consequence seized and strangled.107

107 Williams and Calvert, Fiji, p. 24.

In other cases an innocent person is killed for the offence of another, not because the offender cannot be seized, but with a view to inflicting on him a loss, according to the rule of like for like. The punishment, then, is meant for the culprit, though the chief sufferer is somebody else. According to the Laws of Ḫammurabi, “if a builder has built a house for a man and has not made strong his work, and the house he built has fallen, and he has caused the death of the owner, that builder shall be put to death.” But “if he has caused the son of the owner of the house to die, one shall put to death the son of that builder.”108 Similarly, “if a man has struck a gentleman’s daughter and caused her to drop what is in her womb, he shall pay ten shekels of silver for what was in her womb.” But “if that woman has died, one shall put to death his daughter.”109 The following custom which Mr. Gason reports, as existing among the Australian Dieyerie, in case a man should unintentionally kill another in a fight, is probably based on a similar principle:—“Should the offender have an elder brother, then he must die in his place; or, should he have no elder brother, then his father must be his substitute; but in case he has no male relative to suffer for him, then he himself must die.”110

108 Laws of Ḫammurabi, 229 sq.

109 Ibid. 209 sq.

110 Gason, ‘Manners and Customs of the Dieyerie Tribe,’ in Woods, Native Tribes of South Australia, p. 265.

This extreme disregard of the suffering of guiltless persons is probably not so much due to downright callousness as to a strong feeling of family solidarity. The same feeling is very obvious in those numerous instances in which both the criminal himself and members of his family are implicated in the punishment.

45Among the Atkha Aleuts, the punishment for certain offences was sometimes carried so far as to include the wife of the offender.111 Among the Ew̔e-speaking peoples of the Slave Coast, “a person found guilty of having procured, or endeavoured to procure, the death of another through the agency of the gods Huntin and Loko, is put to death, and his family is generally enslaved as well.”112 Among the Matabele, if a person is declared by the witch-doctor to have caused injury to somebody else by making charms, he “is immediately put to death, his wife and the whole of his family sharing his fate.”113 Among the Shilluks of the White Nile, “murder is punished with death to the criminal and the forfeiture of wives and children to the Sultan, who retains them in bondage.”114 Among the Kafirs, in cases of trespasses against the king, the sentence falls not only on the individual, but on his whole house.115 In Madagascar, the code of native laws, up to recent time, reduced for many offences the culprit’s wife and children to slavery.116 In some parts of the Malay Archipelago, according to Crawfurd, a father and child are considered almost inseparable, hence when the one is punished the other seldom escapes.117 In Bali, the law prescribes that for certain kinds of sorcery the offender shall be put to death. It adds, “If the matter be very clearly made out, let the punishment of death be extended to his father and his mother, to his children and to his grand-children; let none of them live; let none connected with one so guilty remain on the face of the land, and let their goods be in like manner confiscated.”118

111 Petroff, ‘Report on Alaska,’ in Tenth Census of the United States, p. 158.

112 Ellis, Ew̔e-speaking Peoples of the Slave Coast, p. 225.

113 Decle, Three Years in Savage Africa, p. 153.

114 Petherick, Travels in Central Africa, ii. 3.

115 Ratzel, History of Mankind, ii. 445.

116 Sibree, The Great African Island, p. 181. Ellis, History of Madagascar, i. 174, 175, 193.

117 Crawfurd, op. cit. i. 82.

118 Ibid. iii. 138.

The Chinese doctrine of responsibility is to a great extent based upon family solidarity; in great crimes all the male relatives of the offender are held responsible for his deed. Every male relative, of whatever degree, who may be dwelling under the roof of a man guilty of treason, is doomed to death, with the exception of young boys, who are allowed their lives, but on the condition that they are made eunuchs for service in the imperial palace.119 In ancient Mexico, traitors and conspirators were not only themselves killed, but their children and relatives 46were made slaves to the fourth generation.120 According to an Athenian law, a man who committed sacrilege or betrayed his country was banished with all his children.121 Aristotle mentions a case of sacrilege in which “the bones of the guilty dead were disentombed and cast beyond the borders of Attica; the living clan were condemned to perpetual exile, and the city was subsequently purified.”122 The Macedonian law involved in punishment the kindred of conspirators against the monarch.123 Dionysius of Halicarnassus states that some of the Greeks “think it reasonable to put to death the sons of tyrants together with their fathers, whereas others punish them with perpetual banishment”; and he contrasts this with the Roman principle that “the sons shall be exempted from all punishment, whose fathers are offenders, whether they happen to be the sons of tyrants, of parricides, or of traitors.”124 But after the end of the Marsic, and civil wars, this rule was transgressed;125 and later on Arcadius, though expressly ordaining that the punishment of the crime shall extend to the criminal alone,126 took a different view of the punishment for treason. By a special extension of his imperial clemency, he allows the sons of the criminal to live, although in strict justice, being tainted with hereditary guilt, they ought to suffer the punishment of their father. But they shall be incapable of inheritance; they shall be abandoned to the extreme of poverty and perpetual indigence; they shall be excluded from all honours and from the participation of religious rites; the infamy of their father shall ever attend them, and such shall be the misery of their condition, that life shall be a punishment and death a comfort.127 Among the Anglo-Saxons, before the time of Cnut, the child, even the infant in the cradle, was liable to be sold into slavery for the payment of penalties incurred by the father, being “held by the covetous to be equally guilty as if it had discretion.”128 Even later, the child of an outlaw, following the condition of the father, also became an outlaw; and this grievance was only partly remedied by Edward the Confessor, who relieved from the consequences of the father’s outlawry such children as were born before he was 47outlawed, but not such as were born afterwards.129 During the Middle Ages it was the invariable rule to confiscate the entire property of an impenitent heretic, a rule which was justified on the ground that his crime is so great that something of his impurity falls upon all related to him.130 The Pope Alexander IV. also excluded the descendants of an heretic to the second generation from all offices in the Church.131 Owing to religious influence, illegitimate children were not only deprived of the title to inheritance, but they were treated by some law-books as almost rightless beings, on a par with robbers and thieves.132 If a person committed suicide, his goods were confiscated, and, according to a French mediæval law, his wife was besides deprived of her own private property.133 Even in the latter half of the eighteenth century, in France, in the case of an attempt made against the life of the king, the whole family of the criminal was banished.134 Nay, in various European countries, up to quite recent times—in England till 1870—forfeiture of property has been the punishment prescribed for certain crimes, including suicide;135 which means, if not actually the imposition of penalties on the survivors in a case where the culprit himself is out of reach, at least a gross disregard of their ordinary rights of property. It is hardly necessary to point out how often, in the very society in which we live, “social punishments” are inflicted upon children for their father’s wrongs.

119 Douglas, Society in China, p. 71 sq. Ta Tsing Leu Lee, sec. ccliv. p. 270.

120 Bancroft, Native Races of the Pacific States, ii. 459.

121 Meursius, Themis Attica, ii. 2, in Gronovius, Thesaurus Graecarum Antiquitatum, v. 1968.

122 Aristotle, De republica Atheniensium 1. Cf. ibid. 20.

123 Curtius Rufus, De gestis Alexandri Magni, vi. 11. 20.

124 Dionysius of Halicarnassus, Antiquitates Romanae, viii. 80.

125 Ibid. viii. 80.

126 Codex Iustinianus, ix. 47. 22.

127 Ibid. ix. 8. 5.

128 Laws of Cnut, ii. 77. Cf. Lappenberg, History of England under the Anglo-Saxon Kings, ii. 414; Wilda, op. cit. p. 906.

129 Leges Edwardi Confessoris, 19.

130 Lecky, History of Rationalism in Europe, ii. 36, n. 1. Eicken, Geschichte und System der mittelalterlichen Weltanschauung, p. 572 sq. Paramo, De origine et progressu Sancti Inquisitionis p. 587 sq.

131 Eicken, op. cit. p. 573.

132 Ibid. p. 573.

133 Du Boys, Histoire du droit criminel des peuples modernes, ii. 236.

134 Hertz, Voltaire und die französische Strafrechtspflege im achtzehnten Jahrhundert, p. 27.

135 Stephen, History of the Criminal Law of England, i. 487 sq.; iii. 105.

For the explanation of these facts we have to remember what has been said before about collective responsibility in the case of revenge. Speaking of the Chinese doctrine of family solidarity, Dr. de Groot observes that, “under the influence of this doctrine, families, not men individually, came to be regarded, from the Government’s point of view, as the smallest particles, the molecules of the nation, each individual being swallowed up in the circle of his kinsfolk.”136 Such a doctrine assumes that the other members of the family-group are, in a way, accessories48 to any crime committed by a fellow-member. “Human nature,” says Lord Kames, “is not so perverse, as without veil or disguise to punish a person acknowledged to be innocent. An irregular bias of imagination, which extends the qualities of the principal to its accessories, paves the way to that unjust practice. This bias, strengthened by indignation against an atrocious criminal, leads the mind hastily to conclude, that all his connections are partakers of his guilt.”137 Among the ancients we also meet with a strong belief that, according to the course of nature, wicked fathers have wicked sons. “That which is begot,” says Plutarch, “is not, like some production of art unlike the begetter, for it proceeds from him, and is not merely produced by him, so that it appropriately receives his share, whether that be honour or punishment.”138 To destroy, or to make harmless, the family of an offender may be, not only an act of retaliation, but a precaution; according to an old Greek adage, “a man is a fool if he kills the father and leaves the sons alive.”139 This especially holds good for treason, which generally suggests accomplices; and of all crimes for which penalties are imposed upon other individuals besides the culprit, treason is probably the most common. This crime is also particularly apt to evoke the hatred of those who have the power to punish, hence the punishment of it, being closely allied to an act of revenge, is often inflicted without due discrimination. Moreover, by being extended to the criminal’s family, the punishment falls more heavily upon himself as well. Again, in case the crime is of a sacrilegious character, it is supposed to pollute everybody connected with the criminal, and even the whole community where he dwells.

136 de Groot, Religious System of China (vol. ii. book) i. 539.

137 Kames, Sketches of the History of Man, iv. 148.

138 Plutarch, De sera numinis vindicta, 16. Cf. Dionysius of Halicarnassus, op. cit. viii. 80.

139 Schmidt, Ethik der alten Griechen, ii. 126.

In their administration of justice, gods are still more indiscriminate than men. They hold the individual responsible for the whole to which he belongs. They 49punish the community for the sins of one of its members. They visit the iniquity of the fathers and forefathers upon the children and descendants.

The Sibuyaus, a tribe belonging to the Sea Dyaks, “are of opinion that an unmarried girl proving with child must be offensive to the superior powers, who, instead of always chastising the individual, punish the tribe by misfortunes happening to its members. They, therefore, on the discovery of the pregnancy fine the lovers, and sacrifice a pig to propitiate offended Heaven, and to avert that sickness or those misfortunes that might otherwise follow; and they inflict heavy mulcts for every one who may have suffered from any severe accident, or who may have been drowned within a month before the religious atonement was made.”140 According to Chinese beliefs, whole kingdoms are punished for the conduct of their rulers by spirits who act as avengers with orders or approval from the Tao, or Heaven.141 Prevalent opinion in China, continuously inspired anew by literature of all times and ages, further admits that spiritual vengeance may come down upon the culprit’s offspring in the form of disease or death.142 When a maimed or deformed child is born the Japanese say that its parents or ancestors must have committed some great sin.143 The Vedic people ask Varuna to forgive the wrongs committed by their fathers.144 Says the poet:—“What we ourselves have sinned in mercy pardon; my own misdeeds do thou, O god, take from me, and for another’s sin let me not suffer.”145 According to the ancient Greek theory of divine retribution, the community has to suffer for the sins of some of its members, children for the sins of their fathers.146 Hesiod says that often a whole town is punished with famine, pestilence, barrenness of its women, or loss of its army or vessels for the misdeeds of a single individual.147 Crœsus atoned by the forfeiture of his kingdom for the crime of Gyges, his fifth ancestor, who had murdered his master and usurped his throne.148 Cytissorus brought down the anger of gods upon his descendants by 50rescuing Athamas, whom the Achaians intended to offer up as an expiatory sacrifice on behalf of their country.149 When hearing of the death of his wife, Theseus exclaims, “This must be a heaven-sent calamity in consequence of the sins of an ancestor, which from some remote source I am bringing on myself.”150 According to Hebrew notions, sin affects the nation through the individual and entails guilt on succeeding generations.151 The anger of the Lord is kindled against the children of Israel on account of Achan’s sin.152 The sin of the sons of Eli is visited on his whole house from generation to generation.153 Because Saul has slain the Gibeonites, the Lord sends, in the days of David, a three years’ famine, which ceases only when seven of Saul’s sons are hanged.154 The sins of Manasseh are expiated even by the better generation under Josiah.155 The notion of a jealous God who visits the iniquity of the fathers upon the children unto the third and fourth generation of them that hate Him,156 is also frequently met with in the Old Testament Apocrypha. “The inheritance of sinners’ children shall perish, and their posterity shall have a perpetual reproach.”157 “The seed of an unrighteous bed shall be rooted out.”158 The same idea has survived among Christian peoples. It was referred to in Canon Law as a principle to be imitated by human justice,159 and by Innocent III. in justification of a bull which authorised the confiscation of the goods of heretics.160 Up to quite recent times it was a common belief in Scotland that the punishment of the cruelty, oppression, or misconduct of an individual descended as a curse on his children to the third and fourth generation. It was not confined to the common people; “all ranks were influenced by it; and many believed that if the curse did not fall upon the first or second generation it would inevitably descend upon the succeeding.”161 In the dogma that the whole human race is condemned on 51account of the sin of its first parents, the doctrine of collective responsibility has reached its pitch.

140 St. John, Life in the Forests of the Far East, i. 63.

141 de Groot, op. cit. (vol. iv. book) ii. 432, 435. Davis, China, ii. 34 sq.

142 de Groot, op. cit. (vol. iv. book) ii. 452.

143 Griffis, Mikado’s Empire, p. 472.

144 Rig-Veda, vii. 86. 5. Cf. Atharva-Veda, v. 30. 4; x. 3. 8.

145 Rig-Veda, ii. 28. 9. Cf. ibid. vi. 51. 7; vii. 52. 2.

146 Nägelsbach, Nachhomerische Theologie des griechischen Volksglaubens, p. 34 sq. Schmidt, op. cit. i. 67 sqq. Farnell, Cults of the Greek States, i. 76 sq.

147 Hesiod, Opera et dies, 240 sqq.

148 Herodotus, i. 91.

149 Ibid. vii. 197.

150 Euripides, Hippolytus, 831 sq.

151 Oehler, Theology of the Old Testament, i. 236. Dorner, System of Christian Doctrine, ii. 325. Montefiore, Hibbert Lectures, p. 103. Robertson Smith, Religion of the Semites, p. 421. Schultz, Old Testament Theology, ii. 308. Bernard, ‘Sin,’ in Hastings, Dictionary of the Bible, iv. 530, 534.

152 Joshua, vii. 1.

153 1 Samuel, ii. 27 sqq.

154 2 Samuel, xxi. 1 sqq.

155 Deuteronomy, i. 37; iii. 26; iv. 21. 2 Kings, xxiii. 26; xxiv. 3. Jeremiah, xv. 4 sqq.

156 Exodus, xx. 5; xxiv. 7, Numbers, xiv. 18. Deuteronomy, v. 9. Cf. Leviticus, xxvi. 39.

157 Ecclesiasticus, xli. 6. Cf. ibid. xvi. 4; xli. 5, 7 sqq.

158 Wisdom of Solomon, iii. 16. Cf. ibid. iii. 12, 13, 17 sqq.

159 Eicken, op. cit. p. 572.

160 Lecky, History of Rationalism in Europe, ii. 37 n.

161 Stewart, Sketches of the Character, &c., of the Highlanders of Scotland, p. 127.

Men originally attribute to their gods mental qualities similar to their own, and imagine them to be no less fierce and vindictive than they are themselves. Thus the retribution of a god is, in many cases, nothing but an outburst of sudden anger, or an act of private revenge, and as such particularly liable to comprise, not only the offender himself, but those connected with him. Plutarch even argued that the punishments inflicted by gods on cities for ill-deeds committed by their former inhabitants allowed of a just defence, on the ground that a city is “one continuous entity, a sort of creature that never changes from age, or becomes different by time, but is ever sympathetic with and conformable to itself,” and therefore “answerable for whatever it does or has done for the public weal, as long as the community by its union and federal bonds preserves its unity.”162 He further observes that a bad man is not bad only when he breaks out into crime, but has the seeds of vice in his nature, and that the deity, knowing the nature and disposition of every man, prefers stifling crime in embryo to waiting till it becomes ripe.163

162 Plutarch, De sera numinis vindicta, 15.

163 Ibid. 20.

But there are yet special reasons for extending the retribution of a god beyond the limits of individual guilt. Whilst the resentment of a man is a matter of experience, that of a god is a matter of inference. That some particular case of suffering is a divine punishment, is inferred either from its own peculiar character, suggesting the direct interference of a god, or from the assumption that a certain act, on account of its offensiveness, cannot be left unpunished. Now experience shows that, in many instances, the sinner himself escapes all punishment, leading a happy life till his death; hence the conclusion is near at hand that any grave misfortune which befalls his descendants, is the delayed retribution of the offended 52god.164 Such a conclusion is quite in harmony with the common notions of divine power. It especially forces itself upon a mind which has no idea of a hell with post mortem punishments for the wicked. And, where the spirit of a man after his death is believed to be still ardently concerned for the welfare of his family,165 the affliction of his descendants naturally appears as a punishment inflicted upon himself. As Dr. de Groot observes, the doctrine of the Chinese, that spiritual vengeance may descend on the offender’s offspring, tallies perfectly with their conception “that the severest punishment which may be inflicted on one, both in his present life and the next, is decline or extermination of his male issue, leaving nobody to support him in his old age, nobody to protect him after his death from misery and hunger by caring for his corpse and grave, and sacrificing to his manes.”166

164 Cf. Isocrates, Oratio de pace, 120; Cicero, De natura Deorum, iii. 38; Nägelsbach, op. cit. p. 33 sq.

165 Cf. Schmidt, op. cit. i. 71 sq. (ancient Greeks).

166 de Groot, op. cit. (vol. iv. book) ii. 452.

The retributive sufferings which innocent persons have to undergo in consequence of the sins of the guilty, are not always supposed to be inflicted upon them directly, as a result of divine resentment. They are often attributed to infection. Sin is looked upon in the light of a contagious matter which may be transmitted from parents to children, or be communicated by contact.

This idea is well illustrated by the funeral ceremonies of the Tahitians. “When the house for the dead had been erected, and the corpse placed upon the platform or bier, the priest ordered a hole to be dug in the earth or floor near the foot of the platform. Over this he prayed to the god by whom it was supposed the spirit of the deceased had been required. The purport of his prayer was that all the dead man’s sins, and especially that for which his soul had been called to the po, might be deposited there, that they might not attach in any degree to the survivors, and that the anger of the god might be appeased.” All who were employed in embalming the dead were also, during the process, carefully avoided by every person, 53as the guilt of the crime for which the deceased had died was believed to contaminate such as came in contact with the corpse; and as soon as the ceremony of depositing the sins in the hole was over, all who had touched the body or the garments of the deceased, which were buried or destroyed, fled precipitately into the sea to cleanse themselves from the pollution.167 In one part of New Zealand “a service was performed over an individual, by which all the sins of the tribe were supposed to be transferred to him, a fern stalk was previously tied to his person, with which he jumped into the river and there unbinding, allowed it to float away to the sea, bearing their sins with it.”168 The Iroquois White Dog Feast, which was held every year in January, February, or early in March,169 implied, according to most authorities, a ceremony of sin-transference.170 The following description of it is given by Mrs. Jemison, a white woman who was captured by the Indians in the year 1755:—Two white dogs, without spot or blemish, are strangled and hung near the door of the council-house. On the fourth or fifth day the “committee,” consisting of from ten to twenty active men who have been appointed to superintend the festivities, “collect the evil spirit, or drive it off entirely, for the present, and also concentrate within themselves all the sins of their tribe, however numerous or heinous. On the eighth or ninth day, the committee having received all the sin, as before observed, into their own bodies, they take down the dogs, and after having transfused the whole of it into one of their own number, he, by a peculiar sleight of hand, or kind of magic, works it all out of himself into the dogs. The dogs, thus loaded with all the sins of the people, are placed upon a pile of wood that is directly set on fire. Here they are burnt, together with the sins with which they were loaded.”171 Among the Badágas of India, at a burial, “an elder, standing by the corpse, offers up a prayer that the dead may not go to hell, that the sins committed on earth may be forgiven, and that the sins may be borne by a calf, which is let loose in the jungle and used thenceforth for no manner of work.”172 At Utch-Kurgan, in Turkestan, Mr. Schuyler saw an old man, constantly 54engaged in prayer, who was said to be an iskatchi, that is, “a person who gets his living by taking on himself the sins of the dead, and thenceforth devoting his life to prayer for their souls.”173

167 Ellis, Polynesian Researches, i. 401 sqq.

168 Taylor, Te Ika a Maui, p. 101.

169 Beauchamp, ‘Iroquois White Dog Feast,’ in American Antiquarian, vii. 236 sq. Hale, ‘Iroquois Sacrifice of the White Dog,’ ibid. vii. 7.

170 Beauchamp, loc. cit. p. 237 sq.

171 Seaver, Narrative of the Life of Mrs. Mary Jemison, p. 158 sqq. Cf. Mr. Clark’s description, quoted by Beauchamp, loc. cit. p. 238.

172 Thurston, ‘Badágas of the Nilgiris,’ in the Madras Government Museum’s Bulletin, ii. 4. Cf. Metz, Tribes inhabiting the Neilgherry Hills, p. 78; Graul, Reise nach Ostindien, iii. 296 sqq.

173 Schuyler, Turkistan, ii. 28.

In ancient Peru, an Inca, after confession of guilt, bathed in a neighbouring river, and repeated this formula:—“O thou River, receive the sins I have this day confessed unto the Sun, carry them down to the sea, and let them never more appear.”174 According to Vedic beliefs, sin is a contamination which may be inherited, or contracted in various ways,175 and of which the sinner tries to rid himself by transferring it to some enemy,176 or by invoking the gods of water or fire.177 It is washed out by Varuna, in his capacity of a water-god,178 and by Trita, another water-god,179 and even by “the Waters” in general, as appears from the prayer addressed to them:—“O Waters, carry off whatever sin is in me and untruth.”180 For a similar reason, as it seems, water became in the later, Brahmanic age, the “essence (sap) of immortality”181 and the belief in its purifying power still survives in modern India. No sin is too heinous to be removed, no character too black to be washed clean, by the waters of Ganges.182 At sacred places of pilgrimage on the banks of rivers, the Hindus perform special religious shavings for the purpose of purifying soul and body from pollution; and persons who have committed great crimes or are troubled by uneasy consciences, travel hundreds of miles to such holy places where “they may be released from every sin by first being relieved of every hair and then plunging into the sacred stream.”183 So, also, according to Hindu beliefs, contact with cows purifies, and, as in the Parsi ritual, the dung and urine of cows have the power of preventing or cleansing away not only material, but moral defilements.184 In post-Homeric Greece, individuals and a whole people were cleansed from their sins by water or some other material means of purification.185 Plutarch, after observing 55that “there are other properties that have connection and communication, and that transfer themselves from one thing to another with incredible quickness and over immense distances,” asks whether it is “more wonderful that Athens should have been smitten with a plague which started in Arabia, than that, when the Delphians and Sybarites became wicked, vengeance should have fallen on their descendants.”186 The Hebrews annually laid the sins of the people upon the head of a goat, and sent it away into the wilderness;187 and they cleansed every impurity with consecrated water or the sprinkling of blood.188 To this day, the Jews in Morocco, on their New-Year’s day, go to the sea-shore, or to some spring, and remove their sins by throwing stones into the water. The words of the Psalmist, “wash me thoroughly from mine iniquity, and cleanse me from my sin,”189 were not altogether a figure of speech; nor is Christian baptism originally a mere symbol. Its result is forgiveness of sins;190 by the water, as a medium of the Holy Ghost, “the stains of sin are washed away.”191 That sin is contagious has been expressly stated by Christian writers. Novatian says that “the one is defiled by the sin of the other, and the idolatry of the transgressor passes over to him who does not transgress.”192

174 Tylor, Primitive Culture, ii. 435.

175 Atharva-Veda, v. 30. 4; x. 3. 8; vii. 64. i. sq. Cf. Oldenberg, Religion des Veda, p. 290.

176 Rig-Veda, x. 36. 9; x. 37. 12.

177 Ibid. x. 164. 3. Atharva-Veda, vii. 64. 2. Cf. Kaegi, Rig-Veda, p. 157; Oldenberg, op. cit. pp. 291-298, 319 sqq.

178 Cf. Hopkins, Religions of India pp. 65 n. 1, 66.

179 Atharva-Veda, vi. 113. 1 sqq.

180 Rig-Veda, i. 23. 22. Sin is also looked upon as a galling chain from the captivity of which release is besought (ibid. i. 24. 9, 13 sq.; ii. 27. 16; ii. 28. 5; v. 85. 8; vi. 74. 3; &c.).

181 Hopkins, op. cit. p. 196.

182 Monier Williams, Brāhmanism and Hindūism, p. 347.

183 Ibid. p. 375.

184 Barth, Religions of India, p. 264. Laws of Manu, iii. 206; v. 105, 121, 124; xi. 110, 203, 213.

185 Stengel, Die griechischen Kultusaltertümer, p. 138 sqq.

186 Plutarch, De sera numinis vindicta, 14.

187 Leviticus, xvi.

188 Numbers, viii. 7; xix. 4-9, 13 sqq.; xxxi. 23. Leviticus, xvi. 14 sqq.

189 Psalms, li. 2.

190 Harnack, op. cit. ii. 140 sqq.

191 Catechism of the Council of Trent, ii. 2. 10, p. 162.

192 Quoted by Harnack, op. cit. ii. 119.

In this materialistic conception of sin there is an obvious confusion between cause and effect, between the sin and its punishment. Sin is looked upon as a substance charged with injurious energy, which will sooner or later discharge itself to the discomfort or destruction of anybody who is infected with it. The sick Chinese says of his disease, “it is my sin,” instead of saying, “it is the punishment of my sin.”193 Both in Hebrew and in the Vedic language the word for sin is used in a similar way.194 “In the consciousness of the pious Israelite,” Professor Schultz observes, “sin, guilt, and punishment, are ideas so directly connected that the words for them are interchangeable.”195 56The prophets frequently and emphatically declare that there is in sin itself a power which must destroy the sinner.196 So, too, as M. Bergaigne points out, there is in the Vedic notion of sin, “la croyance à une sorte de vertu propre du péché, grâce à laquelle il produit de lui-même son effet nécessaire, à savoir le châtiment du pécheur.”197 Sins are thus treated like diseases, or the germs of diseases, of which patients likewise try to rid themselves by washing or burning, or which are described in the very language often applied to sins as fetters which hold them chained.198 All kinds of evil are in this way materialised. The Shamanistic peoples of Siberia, says Georgi, “hold evil to be a self-existing substance which they call by an infinitude of particular names.”199 According to Moorish ideas, l-bas, or “misfortune,” is a kind of infection, which may be contracted by contact and removed by water or fire; hence in all parts of Morocco water- and fire-ceremonies are performed annually, either on the ʿâshur-eve or at midsummer, l-ʿanṣara, for the purpose of purifying men, animals, and fruit-trees.200 And just as the Moors, on these 57occasions, rid themselves of l-bas, so, in modern Greece, the women make a fire on Midsummer Eve, and jump over it, crying, “I leave my sins.”201

193 Edkins, Religion in China, p. 134.

194 Holzman, ‘Sünde und Sühne in den Rigvedahymnen und den Psalmen,’ in Zeitschr. f. Völkerpsychologie, xv. 9.

195 Schultz, op. cit. ii. 306. Cf. Curtiss, Primitive Semitic Religion To-day, p. 124 sqq.

196 Ibid. ii. 308 sq.

197 Bergaigne, Religion védique, iii. 163. Cf. Rig-Veda, x. 132. 5.

198 Oldenberg, op. cit. p. 288.

199 Georgi, Russia, iii. 257.

200 The various methods of transferring or expelling evil, which abundantly illustrate the materialistic notions held about it, have been treated by Dr. Frazer with unrivalled learning (The Golden Bough), iii. 1 sqq. I have little doubt that the fire- and water-ceremonies, once practised all over Europe on a certain day every year, belong to the same group of rites. “The best general explanation of these European fire-festivals,” says Dr. Frazer (ibid. iii. 300), “seems to be the one given by Mannhardt, namely, that they are sun-charms or magical ceremonies intended to ensure a proper supply of sunshine for men, animals, and plants.” But it should be noticed that in Europe, as in Morocco, a purificatory purpose is expressly ascribed to them by the very persons by whom they are practised (see Frazer, op. cit. iii. 238 sqq.), that they alternate with lustration by water (see Grimm, Teutonic Mythology, ii. 588 sqq.). On the other hand, in Dr. Frazer’s exhaustive description of these ceremonies I fail to discover a single fact which would make Mannhardt’s hypothesis at all probable. Dr. Frazer says (op. cit. iii. 301), “The custom of rolling a burning wheel down a hillside, which is often observed at these times, seems a very natural imitation of the sun’s course in the sky.” To me it appears as a method of distributing the purificatory energy over the fields or vineyards. Notice, for instance, the following statements:—In the Rhon Mountains, Bavaria, “a wheel wrapt in combustibles, was kindled and rolled down the hill; and the young people rushed about the fields with their burning torches and brooms…. In neighbouring villages of Hesse … it is thought that wherever the burning wheels roll, the fields will be safe from hail and storm” (ibid. iii. 243 sq.). At Volkmarsen, in Hesse, “in some places tar-barrels or wheels wrapt in straw used to be set on fire, and then sent rolling down the hillside. In others the boys light torches and whisps of straw at the bonfires and rush about brandishing them in their hands” (ibid. iii. 254). In Münsterland, “boys with blazing bundles of straw run over the fields to make them fruitful” (ibid. iii. 255). Dr. Frazer says (ibid. iii. 301), “The custom of throwing blazing discs, shaped liked suns, into the air is probably also a piece of imitative magic.” But why should it not, in conformity with other practices, be regarded as a means of purifying the air? According to old writers, the object of Midsummer fires was to disperse the aerial dragons (ibid. iii. 267). It would carry me too far from my subject to enter into further details. I have dealt with the matter in my article ‘Midsummer Customs in Morocco.’ in Folk-Lore, xvi. 27-47.

201 Grimm, Teutonic Mythology, ii. 623.

Closely connected with the primitive conception of sin, is that of a curse. In fact, the injurious energy attributed to a sinful act, is in many cases obviously due to the curse of a god. The curse is looked upon as a baneful substance, as a miasma which injures or destroys anybody to whom it cleaves. The curse of Moses was said to lie on mount Ebal, ready to descend with punishments whenever there was an occasion for it.202 The Arabs, when being cursed, sometimes lay themselves down on the ground so that the curse, instead of hitting them, may fly over their bodies.203 According to Teutonic notions, curses alight, settle, cling, they take flight, and turn home as birds to their nests.204 It is the vulgar opinion in Ireland “that a curse once uttered must alight on something: it will float in the air seven years, and may descend any moment on the party it was aimed at; if his guardian angel but forsake him, it takes forthwith the shape of some misfortune, sickness or temptation, and strikes his devoted head.”205 We shall later on see that curses are communicated through material media. In some parts of Morocco, if a man is not powerful enough to avenge an infringement on his marriage-bed, he leaves seven tufts of hair on his head and goes to another tribe to ask for help. This is l-ʿâr, a conditional curse, which is first seated in the tufts, and 58from there transferred to those whom he invokes. Similarly, a person under the vow of blood-revenge lets his hair grow until he has fulfilled his vow. The oath clings to his hair, and will fall upon his head if he violates it.206

202 Deuteronomy, xi. 29.

203 Goldziher, Abhandlungen zur arabischen Philologie, i. 29. Wellhausen, Reste arabischen Heidentums, p. 139, n. 4.

204 Grimm, op. cit. iv. 1690.

205 Ibid. iii. 1227. Wood-Martin, Traces of the Elder Faiths of Ireland ii, 57 sq.

206 The same practice prevailed among the ancient Arabs (Wellhausen, op. cit. p. 122), and some other cases are recorded by Dr. Frazer (op. cit. i. 370 sq.). I cannot accept Wellhausen’s explanation (op. cit. p. 124) that the hair is allowed to grow for the purpose of being sacrificed when the vow is fulfilled.

Generally, a curse follows the course which is indicated by the curser. But it does not do so in every case, and it has a tendency to spread. In ancient India207 and among the Arabs208 and Hebrews,209 there was a belief that a curse, especially if it was undeserved, might fall back on the head of him who uttered it. The same belief prevailed, or still prevails, among the Irish;210 so, also, according to an English proverb, “curses, like chickens, come home to roost.” According to Plato, the curse of a father or mother taints everything with which it comes in contact. Any one who is found guilty of assaulting a parent, shall be for ever banished from the city into the country, and shall abstain from the temples; and “if any freeman eat or drink, or have any other sort of intercourse with him, or only meeting him have voluntarily touched him, he shall not enter into any temple, nor into the agora, nor into the city, until he is purified; for he should consider that he has become tainted by a curse.”211 Plutarch asks whether Jupiter’s priest was forbidden to swear for the reason that “the peril of perjury would reach in common to the whole commonwealth, if a wicked, godless, and forsworn person should have the charge and superintendence of the prayers, vows, and sacrifices made on behalf of the city.”212 The Romans believed that certain horrid imprecations had such power, that not only the object of them never escaped their influence, but that the person who used them also was sure 59to be unhappy.213 Among the Arinzes, an oath is reckoned a terrible thing:—“They do not suffer a person, who has been under the necessity of expurgating himself in so dreadful a manner, to remain among them: he is sent into exile.”214 According to Bedouin notions, a solemn oath should only be taken at a certain distance from the camp, “because the magical nature of the oath might prove pernicious to the general body of Arabs, were it to take place in their vicinity.”215 “To take an oath of any sort,” says Burckhardt, “is always a matter of great concern among the Bedouins. It seems as if they attached to an oath consequences of a supernatural kind…. A Bedouin, even in defence of his own right, will seldom be persuaded to take a solemn oath before a kadhy, or before the tomb of a sheikh or saint, as they are sometimes required to do; and would rather forfeit a small sum than expose himself to the dreaded consequences of an oath.”216 Exactly the same holds good for the Moors. The conditional self-curse is supposed in some degree to pollute the swearer even though the condition referred to in the oath be only imaginary, in other words, though he do not perjure himself. This, I think, is the reason why, among the Berbers in the South of Morocco, persons who have been wrongly accused of a crime, sometimes entirely undress themselves in the sanctuary where they are going to swear. They believe that, if they do so, the saint will punish the accuser; and I conclude that at the bottom of this belief there is a vague idea that the absence of all clothes will prevent the oath from clinging to themselves. They say that it is bad not only to swear, but even to be present when an oath is taken by somebody else. And at Demnat, in the Great Atlas, I was told that when a person has made oath at a shrine, he avoids going back to his house the same way as he came, since otherwise, at least if he 60has sworn false, his family as well as himself would have to suffer.

207 Atharva-Veda, ii. 7. 5.

208 Goldziher, Abhandlungen, i. 38 sq.

209 Ecclesiasticus, xxi. 27.

210 Wood-Martin, op. cit. ii. 57 sq.

211 Plato, Leges, ix. 881.

212 Plutarch, Questiones Romanae, 44.

213 Idem, Vita Cassi, 16.

214 Georgi, op. cit. iii. 54 sq.

215 Burckhardt, Bedouins and Wahábys, p. 73.

216 Ibid. p. 165.

If a curse is infectious, it is naturally liable to contaminate those who derive their origin from the infected individual. The house of Glaucus was utterly extirpated from Sparta, in accordance with the words of the oracle, “There is a nameless son of the Oath-god who has neither hands nor feet; he pursues swiftly, until, having seized, he destroys the whole race, and all the house.”217 So, too, the Erinyes visited the sins of the fathers even on the children and grandchildren;218 and the Erinyes were originally only personifications of curses.219 It is said in the Ecclesiasticus:—“A man that useth much swearing shall be filled with iniquity, and the plague shall never depart from his house…. If he swear in vain, he shall not be innocent, but his house shall be full of calamities.”220 Casalis remarks of the Basutos, that “the dreadful consequences that the curse of Noah has had for Ham and his descendants appear quite natural to these people.”221 The Dharkâr and Majhwâr in Mirzapur, believe that a person who forswears himself will lose his property and his children;222 but as we do not know the contents of the oath, it is possible that the destruction of the latter is not ascribed to mere contagion, but is expressly imprecated on them by the swearer.223 Among the Rejangs of Sumatra, 61“any accident that happens to a man, who has been known to take a false oath, or to his children or grandchildren, is carefully recorded in memory, and attributed to this sole cause.”224 Among the Karens the following story is told:—“Anciently there was a man who had ten children, and he cursed one of his brethren, who had done him no injury; but the curse did the man no harm, and he did not die. Then the curse returned to the man who sent it, and all his ten children died.”225 The Moors are fond of cursing each other’s father or mother, or grandfather, or grandfather’s father, such a curse being understood to involve their descendants as well. The Rev. R. Taylor says of the Maoris, “To bid you go and cook your father would be a great curse, but to tell a person to go and cook his great-grandfather would be far worse, because it included every individual who has sprung from him.”226

217 Herodotus, vi. 86. Cf. Hesiod, Opera et dies, 282 sqq.

218 Aeschylus, Eumenides, 934 sqq.

219 Aeschylus (Eumenides, 416 sq.) expressly designates the Erinyes by the title of “curses” (ἀραὶ), and Pausanias derives the name Erinys from an Arcadian word signifying a fit of anger. Cf. von Lasaulx, ‘Der Fluch bei Griechen und Römern,’ in Verzeichnis der Vorlesungen an der Julius-Maximilians-Universitaet zu Würzburg im Sommer-Semester 1843, p. 8; Müller, Dissertations on the Eumenides of Aeschylus, p. 155 sqq.; Rohde, ‘Paralipomena,’ in Rheinisches Museum für Philologie, 1895, p. 16 sq.

220 Ecclesiasticus, xxiii. 11. Cf. ibid. xli. 5 sqq.; Wisdom of Solomon, iii. 12 sq., xii. 11.

221 Casalis, Basutos, p. 305.

222 Crooke, Tribes and Castes of the North-Western Provinces and Oudh, ii. 287; iii. 444. Cf. ibid. i. 132.

223 Among these tribes it is usual to swear by “putting a bamboo on the head,” or “touching a broad-sword, touching the feet of a Brâhman, holding a cow’s tail, touching Ganges water.” But among many of the other tribes described by Mr. Crooke, persons swear on the heads of their children (ibid. i. 11, 130, 172; ii. 96, 138, 339, 357; iii. 40, 113, 251, 262; iv. 35), or with a son or grandson in the arms (ibid. ii. 428), and in such cases the death of the child would naturally be expected to follow perjury as a direct result of it. Among the Kol, the usual form of an oath is, “May my children die if I lie” (ibid. iii. 313).

224 Marsden, History of Sumatra, p. 240.

225 Mason, in Jour. Asiatic Soc. Bengal, xxxvii. pt. ii. 137.

226 Taylor, Te Ika a Maui, p. 208.

Thus, from the conception that sins and curses are contagious it follows that an innocent person may have to suffer for the sin of another. His suffering does not necessarily relieve the sinner from punishment; sin, like an infectious disease, may spread without vacating the seat of infection. But, as we have seen, it may also be transferred, and sin-transference involves vicarious suffering. At the same time, this kind of vicarious suffering must not be confounded with vicarious expiatory sacrifice. As a general rule, the scapegoat is driven or cast away, not killed. The exceptions to this rule seem to be due to two different causes. On the one hand, the scapegoat may be chased to death, or perhaps be pushed over a precipice,227 for the sake of ridding the community as 62effectively as possible of the evils loaded on the victim. Thus the Bhotiyás of Juhár take a dog, make him drunk, “and having fed him with sweetmeats, lead him round the village and let him loose. They then chase and kill him with sticks and stones, and believe that by so doing no disease or misfortune will visit the village during the year.”228 On the other hand, the transference of evil may be combined with a sacrifice. But of such a combination only a few instances are recorded, and most of them are ambiguous. Considering further that in these cases, or at least in the best known of them, the act of transference takes place after the victim has been killed, it seems to me extremely probable that we have here to do with a fusion of two distinct rites into one, and that the victim is not offered up as a sacrifice in its capacity of a scapegoat, but, once sacrificed, has been made use of as a conductor for all the evils with which the people are beset.

227 According to the Mishna, the Hebrew scapegoat was not allowed to go free in the wilderness, but was killed by being pushed over a precipice (Robertson Smith, Religion of the Semites, p. 418). See also the ambiguous passage in Servius, In Virgilii Aeneidos, iii. 57.

228 Atkinson, ‘Notes on the History of Religion in the Himálaya of the N.W. Provinces,’ in Jour. Asiatic Soc. Bengal, liii. pt. i. 62.

In his list of scapegoats, Dr. Frazer refers to a case of human sacrifice witnessed by the Rev. J. C. Taylor at Onitsha, on the Niger.229 A young woman was drawn, with her face to the earth, from the king’s house to the river. As the people drew her along, they cried, “Wickedness! wickedness!” so as to notify to the passers-by to screen themselves from witnessing the dismal scene. The sacrifice was to take away the iniquities of the land. The body was dragged along in a merciless manner “as if the weight of all their wickedness were thus carried away”; and it was finally drowned in the river. Our informant also heard that there was a man killed, as a sacrifice for the sins of the king. “Thus two human beings were offered as sacrifices, to propitiate their heathen deities, thinking that they would thus atone for the individual sins of those who had broken God’s laws during the past year…. Those who had fallen into gross sins during the past year—such as incendiarisms, thefts, fornications, adulteries, witchcrafts, incests, slanders, &c.—were expected to pay in twenty-eight ngugus, or £2 0s.d., as a fine; and this money was taken into the interior, to purchase two sickly persons, to be 63offered as a sacrifice for all these abominable crimes—one for the land, and one for the river.”230 As will be seen in a following chapter, human sacrifices to rivers are very common in the Niger country. In the cases mentioned by the English missionary, the idea of vicarious expiation is obvious. But I find no evidence of actual sin-transference.

229 Frazer, op. cit. iii. 109 sq.

230 Crowther and Taylor, Gospel on the Banks of the Niger, p. 344 sq.

Dr. Frazer further mentions a custom which, according to Strabo, prevailed among the Albanians of the Eastern Caucasus.231 In the temple of the Moon they kept a number of sacred slaves, of whom many were inspired and prophesied. When one of these men exhibited more than usual symptoms of inspiration or insanity, the high priest had him bound with a sacred chain and maintained him in luxury for a year. At the end of the year he was anointed with unguents and led forth to be sacrificed. A man thrust a sacred spear into his side, piercing his heart. From the manner in which the victim fell, omens were drawn as to the welfare of the commonwealth. Then the body was carried to a certain spot where all the people stood upon it as a purificatory ceremony.232 Dr. Frazer maintains that “the last circumstance clearly indicates that the sins of the people were transferred to the victim, just as the Jewish priest transferred the sins of the people to the scapegoat by laying his hand on the animal’s head.”233 So it may be, although, in my opinion, the purificatory ceremony described by Strabo also allows of another interpretation. The victim was evidently held to be saturated with magic energy; this is commonly the case with men, or animals, or even inanimate things, that are offered in sacrifice, and in the present instance the man was regarded as holy already, long before he was slain. To stand on the corpse, then, might have been regarded as purifying in consequence of the benign virtue inherent in it, just as, according to Muhammedan notions, contact with a saint cures disease, not by transferring it to the saint, but by annihilating it or expelling it from the body of the patient. But whether the ceremony in question involved the idea of sin-transference or not, there is no indication that the sacrifice of the slave was of an expiatory character. The same may be said both of the Egyptian sacrifice of a bull, mentioned by Herodotus, and of the white dog sacrifice performed by the Iroquois. The Egyptians first invoked the god and slew the bull. They then cut off his head and flayed the body. Next 64they took the head, and heaped imprecations on it, praying that, if any evil was impending either over those who sacrificed or over the land of Egypt, it might be made to fall upon that head. And finally, they either sold the head to Greek traders or threw it into the river234—which shows that the real scapegoat, the head, was not regarded as a sacrifice to the god. Among the Iroquois, also, the victims were slain before the sins of the people were transferred to them. According to Hale’s and Morgan’s accounts of this rite, which have reference to different tribes of the Iroquois, no mention of sin-transference is made in the hymn which accompanied the sacrifice.235 Only blessings were invoked. This was the beginning of the chant:—“Now we are about to offer this victim adorned for the sacrifice, in hope that the act will be pleasing and acceptable to the All-Ruler, and that he will so adorn his children, the red men, with his blessings, when they appear before him.”236 Mr. Morgan even denies that the burning of the dog had the slightest connection with the sins of the people, and states that “in the religious system of the Iroquois, there is no recognition of the doctrine of atonement for sin, or of the absolution or forgiveness of sins.”237

231 Frazer, op. cit. iii. 112 sq.

232 Strabo, xi. 4. 7.

233 Frazer, op. cit. iii. 113.

234 Herodotus, ii. 39.

235 Hale, in American Antiquarian, vii. 10 sqq. Morgan, League of the Iroquois, p. 217 sq.

236 Hale, loc. cit. p. 10.

237 Morgan, op. cit. p. 216.

I think we can see the reason why, in some cases, a sacrificial victim is used as scapegoat. The transference of sins or evils is not looked upon as a mere “natural” process, it can hardly be accomplished without the aid of mysterious, magic energy. Among the Berbers of Ait Zelṭn, in Southern Morocco, sick people used to visit a miracle-working wild olive-tree, growing in the immediate vicinity of the supposed grave of Sîdi Butlîla. They there relieve themselves of their complaints by tying a woollen string to one of its branches; in case of headache the patient previously winds the string three times round the top of his head, whilst, in case of fever, he spits on the string, and, when tying it to the tree, says, “I left my fever in thee, O wild olive-tree.” He believes that he may thus transfer his disease to this tree because there is baraka, “benign virtue,” in it; he would not expect to be cured 65by tying the string to any ordinary tree. This illustrates a principle of probably world-wide application. In Morocco, and, I presume, in other countries where disease-transference is believed in, rags tied to a tree are a sure indication that the tree is regarded as holy. Similarly I venture to believe that the transference of sins and evils to a scapegoat is generally supposed to require magic aid of some kind or other. Among the Hebrews, it took place on the Day of Atonement only, and the act was performed by the high-priest.238 Among the Iroquois, it was by “a kind of magic” that the sins of the people were worked into the white dogs;239 and that the animals themselves were held to be charged with supernatural energy, appears from the fact that, according to one account, the ashes of the pyre on which one of them was burnt were “gathered up, carried through the village, and sprinkled at the door of every house.”240 Considering, then, that sacrificial victims, owing to their close contact with the deities to whom they are offered, are held more or less sacred, the idea of employing them as scapegoats is certainly near at hand. But this does not make the sacrifice expiatory. In fact, I know of no instance of an expiatory sacrifice being connected with a ceremony of sin-transference. Hence the materialistic conception of sin hardly helps to explain the belief that the sins of a person may be atoned by another person being offered as a sacrifice to the offended god.

238 Leviticus, xvi. 21.

239 Seaver, op. cit. p. 160.

240 Beauchamp, loc. cit. p. 239.

A sacrifice is expiatory if its object is to avert the supposed anger or indignation of a superhuman being from those on whose behalf it is offered. In various cases the offended god is thought to be appeased only by the death of a man. But it is not always necessary that the victim should be the actual offender. The death of a substitute may expiate his guilt. The expiatory sacrifice may be vicarious.

We shall see, in a subsequent chapter, that, as a general 66rule, human victims are sacrificed for the purpose of saving the lives of the sacrificers: before the beginning of a battle or during a siege, previously to a dangerous sea-expedition, during epidemics, famines, or on other similar occasions, when murderous designs are attributed to some superhuman being on whose will the lives of men are supposed to depend. But these sacrifices are not always expiatory in nature. A god may desire to cause the death of men not only because he is offended, but because he delights in human flesh, or because he wants human attendants, or—no one knows exactly why. It is impossible to find out in each particular case whether the sacrifice is meant to be an expiation or not; it is not certain that the sacrificers know it themselves. Yet in many instances there can be no doubt that its object is to serve as a vicarious atonement.

In Eastern Central Africa, “if a freeman were to set fire to the grass or reeds beside a lake, and cause a great conflagration close to the chosen abode of the deity, he is liable to be offered up to the god that is thus annoyed,” but if he be the owner of many slaves he can easily redeem himself by offering one of them in his place.241 The Ojibways, it is said, were once visited with an epidemic, which they regarded as a divine punishment sent them on account of their wickedness; and when all other efforts failed, “it was decided that the most beautiful girl of the tribe should enter a canoe, push into the channel just above the Sault, and throw away her paddle.”242 In Bœotia, a drunken man having killed a priest of Dionysus Aegobolus, and a pestilence having broken out immediately after, the calamity was regarded as a judgment on the people for the sacrilege, and the oracle of Delphi ordered them to expiate it by sacrificing to the god a blooming boy.243 In his work on the Jews, Philo of Byblus states that “it was the custom among the ancients in cases of great dangers, that the rulers of a city or a nation, in order to avert universal destruction, should give the dearest of their children to be killed as a ransom offered to avenging demons.”244 The idea that sins could be expiated by the death of one who 67had not deserved it, was familiar to the Hebrews. It was said that “the death of the righteous makes atonement.”245 The passage in Isaiah liii. 12 was interpreted of Moses, who “poured out his soul unto death246 and was numbered with the transgressors (the generation that died in the wilderness) and bare the sin of many “that he might atone for the sin of the golden calf.247 Ezekiel suffered “that he might wipe out the transgressions of Israel.”248 And of the Maccabaean martyrs it is said, “Having become as it were a vicarious expiation for the sins of the nation, and through the blood of those godly men and their atoning death, divine providence saved Israel which had before been evil entreated.”249 In these cases, of course, there was no sacrifice in the proper sense of the term, but they obviously illustrate the same characteristic of the divine mind. In fact, the death of Christ, by which he atoned and obliterated the sins of all ages, was conceived as a sacrifice, or spoken of in sacrificial figures.250

241 Macdonald, Africana, i. 96 sq.

242 Dorman, Origin of Primitive Superstitions, p. 208.

243 Pausanias, ix. 8. 2.

244 Eusebius, Praeparatio Evangelica, i. 10. 40 (Migne, Patrologia, Ser. Gr. xxi. 85).

245 Moore, in Cheyne and Black, Encyclopaedia Biblica, iv. 4226.

246 Exodus, xxxii. 32.

247 Sōṭāh, 14 A, quoted by Moore, loc. cit. col. 4226.

248 Sanhedrin, 39 A, quoted ibid. col. 4226.

249 4 Maccabaeans, xvii. 22, quoted ibid. col. 4232.

250 See Moore, loc. cit. col. 4229 sqq.

It is said that, according to early ideas, “it did not essentially concern divine justice that the punishment of faults committed should fall precisely on the guilty; what did concern it was that it should fall on some one, that it should have its accomplishment.”251 Men, we are told, could not fail to discern that a transgression produces suffering as its consequence, and, seeing this, they “associate suffering with the expiation of sin, and, in atoning for their transgressions, they mark their contrition by the suffering which they inflict vicariously on the victim. They argue thus: ‘I have broken a law of God. God exacts pain as a consequence of such a breach. I will therefore slay this lamb, and its sufferings shall make the atonement requisite.’”252 But, so far as I can see, this interpretation of the idea of vicarious expiation is not supported by facts. The victim whose suffering or death is calculated to appease the wrathful god is not anybody 68at random, whosoever he may be. He is a representative of the community which has incurred the anger of the god, and is accepted as a substitute on the principle of social solidarity. So, also, according to the Western Church, Christ discharged the punishment due to the sins of mankind and propitiated the justice of his Father, in his capacity of a man, as a representative of the human race; whereas in the East, where it was maintained that the deity suffered (though he suffered through the human nature which he had made his own), the idea of substitution could hardly take root, since, as Harnack remarks, “the dying God-man really represented no one.”253 The Greek Church regarded the death of Christ as a ransom for mankind paid to the devil, and this doctrine was also accepted by the most important of the Western Fathers, although it flatly contradicted their own theory of atonement.254 There can be no doubt that expiatory sacrifices are frequently offered as ransoms, in other words, that the god or demon is supposed to be appeased, not by the suffering of the victim, but by the gift. Among men it often occurs that the offended party is induced by some material compensation to desist from avenging the injury—in many societies such placability is even prescribed by custom,—and something similar is naturally believed to be the case with gods. From this point of view, of course, it is not necessary that the victim should be a person who is connected with the offender by ties of social solidarity, although he may still be regarded as in a way a substitute. He may be an alien or a slave; or animals or inanimate things may be offered to expiate the sins of men. Among the Dacotahs, “for the expiation of sins or crimes a sacrifice is made of some kind of an animal.”255 Of the Melanesian sacrifices, says Dr. Codrington, “some are propitiatory, substituting an animal for the person who has offended.”256 The Shánárs of Tinnevelly offer up a 69goat, a sheep, or a fowl, in order “to appease the angry demon, and induce him to remove the evil he has inflicted, or abstain from the infliction he may meditate.”257 It would be almost absurd to suppose that in similar cases the suffering or death of the animal is looked upon in the light of a vicarious punishment. Of the Hebrew sin-offering, Professor Kuenen aptly remarks:—258“According to the Israelite’s notion, Yahveh in his clemency permits the soul of the animal sacrificed to take the place of that of the sacrificer. No transfer of guilt to the animal sacrificed takes place: the blood of the latter is clean and remains so, as is evident from the very fact that this blood is put upon the altar; it is a token of mercy on Yahveh’s part that he accepts it…. Nor can it be asserted that the animal sacrificed undergoes the punishment in the place of the transgressor: this is said nowhere, and therefore, in any case, gives another, more sharply defined idea than that which the Israelite must have formed for himself; moreover, it is irreconcilable with the rule that the indigent may bring the tenth part of an ephah of fine flour as a sin-offering.”259 It should also be noticed that a purifying effect was ascribed to contact with the victim’s blood: the high priest should put or sprinkle some blood upon the altar “and cleanse it, and hallow it from the uncleanness of the children of Israel.”260

251 Réville, Prolegomena of the History of Religions, p. 135.

252 Baring-Gould, Origin and Development of Religious Belief, i. 387 sq.

253 Harnack, op. cit. iii. 312 sqq.

254 Ibid. iii. 307, 315 n. 2.

255 Schoolcraft, Indian Tribes of the United States, ii. 196.

256 Codrington, Melanesians, p. 127.

257 Percival, Land of the Veda, p. 309 sq. Cf. Caldwell, Tinnevelly Shánárs, p. 37.

258 Kuenen, Religion of Israel, ii. 266 sq.

259 Leviticus, v. 11 sqq.

260 Ibid. xvi. 18 sq.

To sum up:—The fact that punishments for offences are frequently inflicted, or are supposed to be inflicted, by men or gods upon individuals who have not committed those offences, is explicable from circumstances which in no way clash with our thesis that moral indignation is, in its essence, directed towards the assumed cause of inflicted pain. In many cases the victim, in accordance with the doctrine of collective responsibility, is punished because he is considered to be involved in the guilt—even when he is really innocent—or because he is regarded as a fair 70representative of an offending community. In other cases, he is supposed to be polluted by a sin or a curse, owing to the contagious nature of sins and curses. The principle of social solidarity also accounts for the efficacy ascribed to vicarious expiatory sacrifices; but in many instances expiatory sacrifices only have the character of a ransom or bribe.

And whilst thus our thesis as to the true direction of moral indignation is not in the least invalidated by facts, apparently, but only apparently, contradictory, it is, on the other hand, strongly supported by the protest which the moral consciousness, when sufficiently guided by discrimination and sympathy, enters against the infliction of penal suffering upon the guiltless. Such a protest is heard from various quarters, both with reference to human justice and with reference to the resentment of gods.

Confucius taught that the vices of a father should not discredit a virtuous son.261 Plato lays down the rule that “the disgrace and punishment of the father is not to be visited on the children”; on the contrary, he says, if the children of a criminal who has been punished capitally avoid the wrongs of their father, they shall have glory, and honourable mention shall be made of them, “as having nobly and manfully escaped out of evil into good.”262 According to Roman law, “crimen vel poena paterna nullam maculam filio infligere potest.”263 “Nothing,” says Seneca, “is more unjust than that any one should inherit the quarrels of his father.”264 The Deuteronomist enjoins, “The fathers shall not be put to death for the children, neither shall the children be put to death for the fathers: every man shall be put to death for his own 71sin.”265 Lawgivers have been anxious to restrict the blood-feud to the actual culprit. The Koran forbids the avenger of blood to kill any other person than the manslayer himself.266 In England, according to a law of Edmund, the feud was not to be prosecuted against the kindred of the slayer, unless they made his misdeed their own by harbouring him.267 So, also, in Sweden, in the thirteenth century, the blood feud was limited by law to the guilty individual;268 and we meet with a similar restriction in Slavonic law-books.269

261 Lun Yü, vi. 4. Cf. Thâi-Shang 4.

262 Plato, Leges, ix. 854 sqq. Plato makes an exception for those whose fathers, grandfathers, and great-grandfathers have successively undergone the penalty of death: “Such persons the city shall send away with all their possessions to the city and country of their ancestors, retaining only and wholly their appointed lot” (ibid. ix. 856). But this enactment had no doubt a purely utilitarian foundation, the offspring of a thoroughly wicked family being considered a danger to the city.

263 Digesta, xlviii. 19. 26. Cf. ibid. xlviii. 19. 20.

264 Seneca, De ira, ii. 34. Cf. Cicero, De officiis, i. 25.

265 Deuteronomy, xxiv. 16. Cf. 2 Kings xiv. 6.

266 Koran, xvii. 35.

267 Laws of Edmund, ii. 1.

268 Nordström, Bidrag till den svenska samhälls-författningens historia, ii. 103, 334, 335, 399. Wilda, op. cit. p. 174.

269 Kovalewsky, Coutume contemporaine, p. 248. In Montenegro it was enjoined by Daniel I. (Post, Anfänge des Staats- und Rechtsleben, p. 181).

Passing to the vengeance of gods: according to the Atharva-Veda, Agni, who forgives sin committed through folly and averts Varuna’s wrath, also frees from the consequence of a sin committed by a man’s father or mother.270 Theognis asks, “How, O king of immortals, is it just that whoso is aloof from unrighteous deeds, holding no transgression, nor sinful oath, but being righteous, should suffer what is not just?”271 According to Bion, the deity, in punishing the children of the wicked for their fathers’ crimes, is more ridiculous than a doctor administering a potion to a son or grandson for a father’s or grandfather’s disease.272 The early Greek notion of an inherited curse was modified into the belief that the curse works through generations because the descendants each commit new acts of guilt.273 The persons who prohibited the sons of such as had been proscribed by Sylla, from standing candidates for their fathers’ honours, and from being admitted into the senate, were supposed to have been punished by the gods for this injustice:—“In process of time,” says Dionysius of Halicarnassus, “a blameless punishment, the avenger of their crimes, pursued 72them, by which they themselves were brought down from the greatest height of glory, to the lowest degree of obscurity; and none, even, of their race are now left, but women.”274 Among the Hebrews, Jeremiah and Ezekiel broke with the old notion of divine vengeance. The law of individual responsibility, which had already previously been laid down as a principle of human justice, was to be extended to the sphere of religion.275 “Every one shall die for his own iniquity: every man that eateth the sour grape, his teeth shall be set on edge.”276 “The soul that sinneth, it shall die. The son shall not bear the iniquity of the father, neither shall the father bear the iniquity of the son: the righteousness of the righteous shall be upon him, and the wickedness of the wicked shall be upon him.”277

270 Atharva-Veda, v. 30. 4. Cf. Macdonell, Vedic Mythology, p. 98.

271 Theognis, 743 sqq.

272 Plutarch, De sera numinis vindicta 19. Cf. ibid. 12; Cicero, De natura Deorum, iii. 38.

273 Farnell, op. cit. i. 77. Maine, Ancient Law, p. 127.

274 Dionysius of Halicarnassus, op. cit. viii. 80.

275 Cf. Montefiore, op. cit. p. 220; Kuenen, op. cit. ii. 35 sq.

276 Jeremiah, xxxi. 30.

277 Ezekiel, xviii. 20. For Talmudic views, see Deutsch, Literary Remains, p. 52.

 

 

 

 

CHAPTER III

THE NATURE OF THE MORAL EMOTIONS (continued)

IT was said in the last chapter that moral disapproval is a sub-species of resentment, and that resentment is, in its essence, an aggressive attitude of mind towards an assumed cause of pain. It was shown that, in the course of mental evolution, the true direction of the hostile reaction involved in moral disapproval has become more apparent. We shall now see that, at the same time, its aggressive character has become more disguised.

This is evidenced by the changed opinion about anger and revenge which we meet at the higher stages of moral development. Retaliation is condemned, and forgiveness of injuries is laid down as a duty.

The rule that a person should be forbearing and kind to his enemy has no place in early ethics.

“Let those that speak evil of us perish. Let the enemy be clubbed, swept away, utterly destroyed, piled in heaps. Let their teeth be broken. May they fall headlong into a pit. Let us live, and let our enemies perish.” Such were the requests which generally concluded the prayers of the Fijians.1 A savage would find nothing objectionable in them. On the contrary, he regards revenge as a duty,2 and forgiveness of enemies as a sign of weakness, or cowardice, or want of honour.3 Nor 74is this opinion restricted to the savage world. In the Old Testament the spirit of vindictiveness pervades both the men and their god. The last thing with which David on his death-bed charged Solomon was to destroy an enemy whom he himself had spared.4 Sirach counts among the nine causes of a man’s happiness to see the fall of his enemy.5 The enemies of Yahveh can expect no mercy from him, but utter destruction is their lot.6 To do good to a friend and to do harm to an enemy was a maxim of the ancient Scandinavians.7 It was taken for a matter of course by popular opinion in Greece8 and Rome. According to Aristotle, “it belongs to the courageous man never to be worsted”; to take revenge on a foe rather than to be reconciled is just, and therefore honourable.9 Cicero defines a good man as a person “who serves whom he can, and injures none except when provoked by injury.”10 Except in domestic life and in the case of friends, Professor Seeley observes, “people not only did not forgive their enemies, but did not wish to do so, nor think better of themselves for having done so. That man considered himself fortunate who on his deathbed could say, in reviewing his past life, that no one had done more good to his friends or more mischief to his enemies. This was the celebrated felicity of Sulla; this the crown of Xenophon’s panegyric on Cyrus the Younger.”11

1 Fison, quoted by Codrington, Melanesians, p. 147, n. 1.

2 See infra, on Blood-revenge.

3 Cf. Domenech, Great Deserts of North America, ii. 97, 338, 438 (Dacotahs); Boas, First General Report on the Indians of British Columbia, p. 38; Baker, Albert N’yanza i. 240 sq. (Latukas).

4 1 Kings, ii. 8 sq.

5 Ecclesiasticus, xxv. 7.

6 Cf. Montefiore, Hibbert Lectures, p. 40.

7 Maurer, Bekehrung des Norwegischen Stammes, ii. 154 sq.

8 Maury, Histoire des religions de la Grèce antique, i. 383. Schmidt, Ethik der alten Griechen, ii. 309 sqq.

9 Aristotle, Rhetorica, i. 9. 24. Cf. Aeschylus, Choeophori, 309 sqq.; Plato, Meno, p. 71; Xenophon, Memorabilia, ii. 6. 35.

10 Cicero, De officiis, iii. 19. iii. 19. Cf. ibid. ii. 14; but cf. also ibid. i. 25, where it is said that nothing is more worthy of a great and a good man than placability and moderation.

11 Seeley, Ecce Homo, p. 273.

But side by side with the doctrine of resentment, we meet, among peoples of culture, the doctrine of forgiveness.

“Recompense injury with kindness,” says Lao-Tsze.12 According to Mencius, “a benevolent man does not lay up anger, nor cherish resentment against his brother, but only regards him with affection and love.”13 In the laws of Manu the following rule is laid down for the twice-born man:—“Against an angry man let him not in return show anger, let him bless 75when he is cursed.”14 It is said in the Buddhistic Dhammapada: “Hatred does not cease by hatred at any time; hatred ceases by love, this is an old rule…. Among men who hate us we dwell free from hatred…. Let a man overcome anger by love, let him overcome evil by good; let him overcome the greedy by liberality, the liar by truth.”15 According to one of the Pahlavi texts, we ought not to indulge in wrathfulness; wrath is one of the fiends besetting man, and “goodness is little in the mind of a man of wrath.”16

12 Tâo Teh King, ii. 63. 1. According to Thâi-Shang, 4, a bad man “broods over resentment without ceasing.”

13 Mencius, v. 1. 3. 2.

14 Laws of Manu, vi. 48. Cf. ibid. viii. 313; Monier-Williams, Indian Wisdom, pp. 444, 446; Muir, Additional Moral and Religious Passages, rendered from the Sanskrit, p. 30.

15 Dhammapada, i. 5; xv. 197; xvii. 223. Cf. Jātaka Tales, i. 22; Oldenberg, Buddha, p. 298.

16 Dînâ-î-Maînôg-î Khirad, ii. 16; xli. 11; xxxix. 26.

In Leviticus hatred is condemned:—“Thou shalt not hate thy brother in thine heart…. Thou shalt not avenge, nor bear any grudge against the children of thy people.”17 Sirach, whom I have already quoted, says in another passage, “Forgive thy neighbour the hurt that he has done unto thee, so shall thy sins also be forgiven when thou prayest.”18 According to the Talmud, “whosoever does not persecute them that persecute him, whosoever takes an offence in silence, he who does good because of love, he who is cheerful under his sufferings they are the friends of God, and of them the Scripture says, And they shall shine forth as does the sun at noon-day.”19 The Koran, whilst repeating the old rule, “an eye for an eye and a tooth for a tooth,”20 at the same time teaches that Paradise is “for those who repress their rage, and those who pardon men; God loves the kind.”21 Muhammedan tradition puts the following words in the mouth of the Prophet:—“Say not, if people do good to us, we will do good to them, and if people oppress us, we will oppress them: but resolve that if people do good to you, you will do good to them, and if they oppress you, oppress them not again.”22 Professor Goldziher emphasises Muhammed’s opposition to the traditional rule of the Arabs that an enemy is a proper object of hatred;23 and Syed Ameer Ali has collected various passages from the writings of Muhammedan scholars, which prove that, 76in spite of what has often been said to the contrary, forgiveness of injuries is by no means foreign to the spirit of Islam.24 Thus the author of the Kashshâf prescribes, “Seek again him who drives you away; give to him who takes away from you; pardon him who injures you: for God loveth that you should cast into the depth of your souls the roots of His perfections.”25 That “the sandal-tree perfumes the axe that fells it,” is a saying in everyday use among the Muhammedans of India.26 And Lane often heard Egyptians forgivingly say, on receiving a blow from an equal, “God bless thee,” “God requite thee good,” “Beat me again.”27

17 Leviticus, xix. 17 sq. Cf. Exodus, xxiii. 4.

18 Ecclesiasticus, xxviii. 2. Cf. ibid. x, 6; Proverbs, xxv. 21.

19 Deutsch, Literary Remains, p. 58. Cf. Katz, Der wahre Talmudjude, p. 11, sq.

20 Koran, ii. 190: “Whoso transgresses against you, transgress against him like as he transgressed against you.”

21 Ibid. iii. 125. Cf. ibid. xxiii. 98; xxiv. 22; xli. 34.

22 Lane-Poole, Speeches and Table-Talk of Mohammad, p. 147.

23 Goldziher, Mohammedanische Studien, i. 15 sq.

24 Ameer Ali, Ethics of Islam, p. 26 sqq.

25 Ibid. p. 7. Idem, Life and Teachings of Mohammed, p. 280.

26 Poole, Studies in Mohammedanism, p. 226.

27 Lane, Modern Egyptians, p. 314 sq.

The principles of forgiveness had also advocates in Greece and Rome. In one of the Platonic dialogues, Socrates says, “We ought not to retaliate or render evil for evil to any one, whatever evil we may have suffered from him”; though he wisely adds that “this opinion has never been held, and never will be held, by any considerable number of persons.”28 The Stoics strongly condemned anger as unnatural and unreasonable. “Mankind is born for mutual assistance, anger for mutual ruin.”29 “Anger is a crime of the mind; … it often is even more criminal than the faults with which it is angry.”30 He is the best and purest “who pardons others as if he sinned himself daily, but avoids sinning as if he never pardoned.”31 “If any one is angry with you, meet his anger by returning benefits for it.”32 “The cynic loves those who beat him.”33

28 Plato, Crito, p. 49.

29 Seneca, De ira, i. 5.

30 Ibid. i. 16; ii. 6.

31 Pliny, Epistolæ, ix. 22 (viii. 22).

32 Seneca, op. cit. ii. 34.

33 Epictetus, Dissertationes, iii. 22, 54.

Forgiveness of enemies is thus by no means an exclusively Christian tenet, although it has never before or after been inculcated with the same emphasis as it was by Jesus. “Love your enemies; bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you.”34 When St. Peter asked, “Lord, how oft shall my brother sin against me, and I forgive him? till seven times?” Jesus replied, “I say not unto thee, Until seven times: but, Until seventy times seven,”35—that is, as often as he repeats the offence. It would seem that Jesus by these sentences expressly forbade men to avenge themselves, or even 77to feel resentment on their own behalf; and so also he was understood by St. Paul.36

34 St. Matthew, v. 44. Cf. ibid. v. 39 sq.; vi. 14 sq.; St. Luke, vi. 27 sqq.; xvii. 3 sq.; St. Mark, xi. 25 sq.

35 St. Matthew, xviii. 21 sq.

36 Romans, xii. 19 sqq.; 1 Thessalonians, v. 14 sq.; Colossians, iii. 12 sq.

The rule of retaliation and the rule of forgiveness, however, are not so radically opposed to each other as they appear to be. What the latter condemns is, in reality, not every kind of resentment, but non-moral resentment; not impartial indignation, but personal hatred. It prohibits revenge, but not punishment. According to the Laws of Manu, crime was so indispensably to be followed by punishment, that if the king pardoned a thief or a perpetrator of violence, instead of slaying or striking him, the guilt fell on the king;37 and if Lao-tsze was an enemy to the infliction of any kind of suffering, it was because he held that in a well-governed State the necessity for punishment could not arise, as crime would cease to exist.38 The Chinese book, Merits and Errors Scrutinised, which regards it as a merit to refrain from avenging an injury, adds that, “if a man should omit to avenge the injuries of his parents, it would become an error.”39 Jesus was certainly not free from righteous indignation. It does not appear that he ever forgave the legalists who sinned against the kingdom of God, and he told his disciples that, if a brother who had trespassed against his brother neglected to hear the church, he should be looked upon as a heathen and a publican.40 Christian writers have laid much stress upon the circumstance that Jesus enjoined men to forgive their own enemies, but not to abstain from resenting injuries done to others. According to Thomas Aquinas, “the good bear with the wicked to this extent, that, so far as it is proper to do so, they patiently endure at their hands the injuries done to themselves; but they do not bear with them to the extent of enduring the injuries done to God and their neighbours. For Chrysostom says, ‘For it 78is praiseworthy to be patient under one’s own wrongs, but the height of impiety to dissemble injuries done to God.’”41 Practically, at least, Christianity has not altered the validity of the Aristotelian rule that anger admits not only of an excess, but of a defect, and that we ought to feel angry at certain things.42 As Plutarch says, we even think those worthy of hatred who are not vexed at hateful individuals; and we can sympathise with the man who, hearing somebody praise Charillus, king of Sparta, for his gentleness, replied, “How can Charillus be good, who is not harsh even to the bad?”43 Moreover, the belief in a transcendental retributive justice, in an ultimate punishment of badness, which we meet with in Taouism,44 Brahmanism, Buddhism,45 Christianity,46 side by side with the doctrine of forgiveness, is based upon the demand that wrong should be resented.

37 Laws of Manu, viii. 316, 346 sq. Cf. Gautama, xii. 45; Âpastamba, i. 9. 25. 5.

38 Douglas, Confucianism and Taouism, p. 204.

39 ‘Merits and Errors scrutinised,’ in Indo-Chinese Gleaner, iii. 153.

40 St. Matthew, xviii. 15 sqq.

41 Thomas Aquinas, Summa Theologia, ii.-ii. 108. 1. 2. Cf. Lactantius, De ira Dei, 17.

42 Aristotle, Ethica Nicomachea, ii. 7. 10; iii. 1. 24; iv. 5. 3 sqq.

43 Plutarch, De invidia et odio, 5.

44 Douglas, op. cit. p. 257.

45 Dhammapada, i. 15, 17; x. 137 sqq.

46 Cf. Romans, xii. 19: “Vengeance is mine; I will repay, saith the Lord.”

It is easy to see why enlightened and sympathetic minds disapprove of resentment and retaliation springing from personal motives. Such resentment is apt to be partial. It is too often directed against persons whom impartial reflection finds to be no proper objects of indignation, and still more frequently it is unduly excessive. As Butler ays, “we are in such a peculiar situation, with respect to injuries done to ourselves, that we can scarce any more see them as they really are, than our eye can see itself.”47 “As bodies seem greater in a mist, so do little matters in a rage”; hence the old rule that we ought not to punish whilst angry.48 The more the moral consciousness is influenced by sympathy, the more severely it condemns any retributive infliction of pain which it regards as undeserved; and it seems to be in the first place with a 79view to preventing such injustice that teachers of morality have enjoined upon men to love their enemies. It would, indeed, be absurd to blame a person for expressing moral indignation at an act simply because he himself happens to be the offended party; practically we allow him to be even more indignant than the impartial spectator would be, whereas excessive placability often meets with censure. Like Aristotle, we maintain that “to submit to insult, or to overlook an insult offered to our friends, shows a slavish spirit”49; and we agree with the Confucian maxims, that injuries should be recompensed, not with kindness, but with justice, and that nobody but he who deserves it should be an object of hatred.50

47 Butler, ‘Sermon IX.—Upon Forgiveness of Injuries,’ in Analogy of Religion, &c., p. 469.

48 Plutarch, De cohibenda ira, 11. Montaigne, Essais, ii. 31 (Oeuvres, p. 396).

49 Aristotle, Ethica Nicomachea, 5. 6.

50 Lun Yü xiv. 36. 3; xvii. 9. 1, 5; xvii. 24. 1. Douglas, Confucianism and Taouism, p. 9. Cf. Chung Yung, x. 3; xxxi. 1; xxxiii. 4.

At the same time, the injunctions of moralists that unjust resentment should be suppressed, are far from introducing any absolutely new element into the estimation of conduct. They only represent a higher stage of a process of moral development the early phases of which are found already in primitive societies. Even the savage who enjoins revenge as a duty, regards revenge under certain circumstances as wrong.51 The restraining rule of like for like, as we shall see, is an instance of this.

51 Concerning the Dacotahs, Prescott observes, “There are cases where the Indians say retaliation is wrong, and they try to prevent it” (Schoolcraft, Indian Tribes, ii. 197).

The aggressive character of moral disapproval has become more disguised, not only by the more scrutinising attitude towards the resentment and retaliation which distinguishes the moral consciousness of a higher type, but by the different way in which the aggressiveness displays itself. The infliction of suffering merely for the sake of retribution is condemned, and the rule is laid down that we should hate, not the sinner, but only the sin.

Punishment, which expresses more or less faithfully the moral indignation of the society which inflicts it, is externally similar to an act of revenge; it causes, or is intended 80to cause, pain in return for inflicted pain. For ages it was looked upon as a matter of course that if a person had committed an offence he should have to suffer for it. This is still the notion of the multitude, as also of a host of theorisers, who, by calling punishment an expiation, or a reparation, or a restoration of the disturbed equilibrium of justice, only endeavour to give a philosophical sanction to a very simple fact, the true nature of which they too often have failed to grasp. The infliction of pain, however, is not an act which the moral consciousness regards with indifference, even in the case of a criminal; and to many enlightened minds with keen sympathy for human suffering, it has appeared both unreasonable and cruel that the State should wilfully torment him to no purpose. But whilst retributive punishment has been condemned, punishment itself has been defended; it is only looked upon in a different light, not as an end by itself, but as a means of attaining an end. It is to be inflicted, not because wrong has been done, but in order that wrong be not done. Its object is held to be, either to deter from crime, or to reform the criminal, or by means of elimination or seclusion, to make it physically impossible for him to commit fresh crimes.

These views were expressed already in Greek and Roman antiquity.52 According to Plato, a reasonable man punishes for the sake of deterring from wickedness, or with a view to correcting the offender.53 Aristotle looks upon punishment as a moral medicine.54 Seneca maintains that the law, in punishing wrong, aims at three ends: “either that it may correct him whom it punishes, or that his punishment may render other men better, or that, by bad men being put out of the way, the rest may live without fear.”55 In modern times all these theories have had, and still have, their numerous adherents. According to Hugo Grotius, “men are so bound together by their common 81nature, that they ought not to do each other harm, except for the sake of some good to be attained”; hence “man is not rightly punished by man merely for the sake of punishing”; advantage alone makes punishment right—“either the advantage of the offender, or of him who suffers by the offence, or of persons in general.”56 For a long time the view taken by Hobbes, that “the aym of Punishment is not a revenge, but terrour,”57 remained the leading doctrine on the subject, among philosophers, as well as legislators. It was shared by Montesquieu,58 Beccaria,59 and Filangieri,60 by Anselm von Feuerbach61 and Schopenhauer,62 and, in the main, by Bentham.63 During the nineteenth century the principle of determent was largely superseded by the principle of reformation; whilst certain contemporary criminologists—like some previous ones64—are of opinion that punishment should aim to repress crime by an “absolute” or “relative elimination” of the criminal, that is, in extreme cases by killing him, but generally by incarcerating him in a criminal lunatic asylum, or by banishing him for ever or for a certain period, or by interdicting him from a particular neighbourhood.65

52 Cf. Laistner, Das Recht in der Strafe, p. 9 sqq.; Thonissen, Le droit pénal de la république Athénienne, p. 418 sqq.

53 Plato, Protagoras, p. 324. Idem, Politicus, p. 293. Idem, Gorgias, p. 479. Idem, Leges, ix. 854; xi. 934; xii. 944.

54 Aristotle, Ethica Nicomachea, ii. 3. 4.

55 Seneca, De clementia, i. 22. Cf. Idem, De ira, i. 19.

56 Grotius, De iure belli et pacis, ii. 20. 4 sqq.

57 Hobbes, Leviathan, ii. 28, p. 243.

58 Montesquieu, Lettres Persanes, 81.

59 Beccaria, Dei delitti e delle pene, passim.

60 Filangieri, La scienza della legislazione, iii. 2. 27, vol. iv. 13 sq.

61 von Feuerbach-Mittermaier, Lehrbuch des gemeinen in Deutschland gültigen Peinlichen Rechts, p. 38 sqq.

62 Schopenhauer, Die Welt als Wille und Vorstellung, ii. 683 sqq.

63 Bentham, Principles of Morals and Legislation, p. 170 sq. n. 1: “… Example is the most important end of all.” Idem, Rationale of Punishment, p. 19 sqq.

64 See von Feuerbach-Mittermaier, op. cit. p. 40.

65 Garofalo, Criminologie, p. 251 sqq. Ferri, Criminal Sociology, p. 204 sqq.

The advocates of these various theories are unanimous in condemning retributive punishment as wrong. Without the grounds of social defence, says M. Guyau, “the punishment would be as blameworthy as the crime, and … the lawgivers and the judges, by deliberately condemning the guilty to punishment, would become their fellows.”66 For my own part I believe, on the contrary, that those who would venture to carry out all the consequences to which the theories of social defence or of reformation might lead, would be regarded even as more criminal than those they punished, not only by the 82opponents, but probably by the very supporters of the theories in question. A brief statement of some of those consequences will, I hope, suffice to prove that punishment can hardly be guided exclusively by utilitarian considerations, but requires the sanction of the retributive emotion of moral disapproval.

66 Guyau, Esquisse d’une morale sans obligation ni sanction, p. 148.

The principle of repressing crime by eliminating the criminal may at once be put aside, because it has no reference to the punishment of criminals, although it contains a suggestion—and a most excellent one indeed—as to the proper mode of treating them. Their exclusion from the company of their fellow-men—not to speak of their elimination by death—certainly entails suffering, but, according to the principle with which we are dealing, this suffering is not intended. On the other hand, punishment, in the ordinary sense of the word, always involves an express intention to inflict pain, whatever be the object for which pain is inflicted. We do not punish an ill-natured dog when we tie him up so as to prevent him from doing harm, nor do we punish a lunatic by confining him in a madhouse.

According to the principle of determent, the infliction of suffering in consequence of an offence is justified as a means of increasing public safety. The offender is sacrificed for the common weal. But why the offender only? It is quite probable that a more effective way of deterring from crime would be to punish his children as well; and if the notion of justice derived all its import from the result achieved by the punishment, there would be nothing unjust in doing so. The only objection which, from this point of view, might ever be raised against the practice of visiting the wrongs of the fathers upon the children, is that it is needlessly severe; the innocence of the children could count for nothing. Nor do I see why the law should not allow our own judges now and then to follow the example of their Egyptian colleague who in an intricate lawsuit caused a person avowedly innocent to be bastinadoed with the hope that whoever was the real 83culprit might be induced to confess out of compassion.67 Moreover, if the object of punishment is merely preventive, the heaviest punishment should be threatened where the strongest motive is needed to restrain. Consequently, an injury committed under great temptation, or in a passion, should be punished with particular severity; whereas a crime like parricide might be treated with more indulgence than other kinds of homicide, owing to the restraining influence of filial affection. Could the moral consciousness approve of this?

67 Burckhardt, Arabic Proverbs, p. 103 sq.

Again, if punishment were to be regulated by the principle of reforming the criminal, the result would in some cases be very astonishing. There is no more incorrigible set of offenders than habitual vagrants and drunkards, whereas experience has shown that the most easily reformed of all offenders is often some person who has committed a serious crime. According to the reformation theory, the latter should soon be set free, whilst the petty offender might have to be shut up for all his life. Nay more, if the criminal proves absolutely incorrigible, and not the slightest hope of his reformation is left, there would no longer be any reason for punishing him at all.68 The reformationist may also be asked why he does not try some more humane method of improving people’s characters than by the infliction of suffering.

68 Cf. Morrison, Crime and its Causes, p. 203; Durkheim, Division du travail social, p. 94.

It may seem strange that theories which are open to such objections should have been able to attract so many intelligent partisans. These theories must at least possess a certain plausibility. If punishment on the one hand springs from moral indignation, and on the other hand is frequently interpreted as a means either of deterring from crime or of reforming the criminal, there must obviously be some connection between these ends and the retributive aim of moral resentment. There must be certain facts which, to some extent, fill up the gap between the theory of retribution and the other theories of punishment.

84The doctrine of determent regards punishment as a means of preventing crime. A crime always involves the infliction of pain; and the one thing which men try to prevent for its own sake is pain. The one thing which arouses resentment is likewise pain. There must consequently be a general coincidence between the acts which people resent and the acts which the law would punish if it were framed on the principle of determent. But the resemblance between the desire to deter and resentment is greater still. Resentment is not only aroused by pain, but is a hostile attitude towards its cause, and its intrinsic object is to remove this cause, that is, to prevent pain. An act of moral resentment is therefore apt to resemble a punishment inflicted with a view to deterring from crime, provided that the punishment is directed against the cause of crime—the criminal himself—and is not unduly severe.

The doctrine of reformation aims at the removal of a criminal disposition of mind by improving the offender. Moral resentment likewise aims at the removal of a volitional cause of pain, by bringing about repentance in the offender. That repentance ought to be followed by forgiveness, partial or total, is a widely recognised moral claim.

According to the Chinese Penal Code, whoever, having committed an injury which can be repaired by restitution or compensation, surrenders himself voluntarily, and acknowledges his guilt to a magistrate, before it is otherwise discovered, shall be freely pardoned, though all claims upon his property shall be duly liquidated.69 In Madagascar, according to a law made in 1828, “all the fines shall be reduced one-half, according to the nature of the fines, if the persons guilty accuse themselves.”70 According to Zoroastrianism, one element of atonement consists in repentance, as manifested by avowal of the guilt and by the recital of a formula, the Patet.71 It is said in the Laws of Manu:—“In proportion as a man who has done wrong, himself 85confesses it, even so far he is freed from guilt, as a snake from its slough…. He who has committed a sin and has repented, is freed from that sin, but he is purified only by the resolution of ceasing to sin and thinking ‘I will do so no more.’”72 According to the Rig-Veda, Varuna inflicts terrible punishments on the hardened criminal, but is merciful to him who repents; to Varuna the cry of anguish from remorse ascends, and before him the sinner comes to discharge himself of the burden of his guilt by confession.73 So, also, Zeus pardons the repentant.74 The main doctrine of Judaism on the subject of atonement is comprised in the single word Repentance. No teachers, says Mr. Montefiore, “exalted the place and power of repentance more than the Rabbis. There was no sin for which in their eyes a true repentance could not obtain forgiveness from God.”75 According to the Talmud, a space of only two fingers’ breadth lies between Hell and Heaven: the sinner has only to repent sincerely, and the gates to everlasting bliss will spring open.76 Jesus commanded his disciples to forgive injuries if followed by repentance:—“If thy brother trespass against thee, rebuke him; and if he repent, forgive him. And if he trespass against thee seven times in a day, and seven times in a day turn again to thee, saying, I repent; thou shalt forgive him.”77

69 Ta Tsing Leu Lee, sec. xxv. p. 27 sq.

70 Ellis, History of Madagascar, i. 386.

71 Darmesteter, in Sacred Books of the East, iv. p. lxxxvi.

72 Laws of Manu, xi. 229, 231. Cf. ibid. xi. 228, 230.

73 Rig-Veda, i. 25. 1 sq.; ii. 28. 5 sqq.; v. 85. 7 sq.; vii. 87. 7, 88. 6 sq., 89. 1 sqq. Barth, Religions of India, p. 17.

74 Ilias, ix. 502 sqq.

75 Montefiore, op. cit. pp. 524, 335 n.

76 Deutsch, Literary Remains, p. 53. Cf. ibid. p. 56; Katz, Der wahre Talmudjude, p. 87 sq.; Kohler, ‘Atonement,’ in Jewish Encyclopedia, ii. 279; Moore, ‘Sacrifice’ in Cheyne and Black, Encyclopædia Biblica, iv. 4224 sq.

77 St. Luke, xvii. 3 sq.

But repentance not only blunts the edge of moral indignation and recommends the offender to the mercy of men and gods: it is the sole ground on which pardon can be given by a scrupulous judge. When sufficiently guided by deliberation and left to itself, without being unduly checked by other emotions, the feeling of moral resentment is apt to last as long as its cause remains unaltered, that is until the will of the offender has ceased to be offensive; and it ceases to be offensive only when he acknowledges his guilt and repents. It is true that the mere performance of certain ceremonies is frequently supposed to relieve the performer of his sins,78 and that the 86same end is thought to be attained by pleasing God in some way or other, by sacrifice, or alms-giving, or the like. Men even lay claim to divine forgiveness as a right belonging to them in virtue of some meritorious deeds of theirs, according to the doctrine of opera supererogativa—a doctrine which, in substance, is not restricted to Roman Catholicism, but is found, in a more or less developed form, in Judaism,79 Muhammedanism,80 Brahmanism,81 and degenerated Buddhism.82 But all such ideas are objectionable to the moral consciousness of a higher type. They are based on the crude notion that sin is a material substance which may be removed by material means; or on the belief that an offender may compound with the deity for sinning against him, in the same way as he pacifies his injured neighbour, by bribery or flattery; or on the assumptions that by a good or meritorious deed a man has done more than his duty, that a good deed stands in the same relation to a bad deed as a claim to a debt, that the claim is made on the same person to whom the debt is due, namely, God—even though it be only by his mercy—and that the debt consequently may be compensated by the claim in the same way as the payment of a certain sum may compensate for a loss inflicted. This doctrine attaches badness and goodness to external acts rather than to mental facts. Reparation implies compensation for a loss. The loss may be compensated by the bestowal of a corresponding advantage; but no reparation can be given for badness. Badness can only be forgiven, and moral forgiveness can be granted only on condition that the agent’s mind has undergone a radical alteration for the better, that the badness of the will has given way to repentance.83 Hence the Reformation 87proscribed offerings for the redemption of sins, together with the trade in indulgences; and we meet with an analogous movement in other comparatively advanced forms of religion. In reformed Brahmanism, repentance is declared to be the only means of redeeming trespasses.84 The idea expressed in the Psalms, that God delights not in burnt offerings, but that the sacrifices of God are a broken and a contrite heart,85 became the prevailing opinion among the Rabbis, most of whom regarded repentance as the conditio sine quâ non of expiation and the forgiveness of sins.86 Let us also remember that he who commanded his followers to forgive a brother for his sin, at the same time pronounced the qualification: “if he repent.”87

78 Supra, p. 53 sqq. Heriot, Travels through the Canadas, p. 378 (ancient Mexicans). Adair, History of the American Indians, p. 150. Krasheninnikoff, History of Kamchatka, p. 178. Williams and Calvert, Fiji, p. 24.

79 Montefiore, op. cit. p. 525 sqq.

80 Koran, xi. 116. Sell, Faith of Islám, p. 220 sq. According to Muhammadanism, however, it is only “little sins” that are forgiven if some good actions are done, whereas “great sins” can only be forgiven after due repentance (ibid. p. 214).

81 Wheeler, History of India, ii. 475.

82 Indo-Chinese Gleaner, iii. 150, 161, 164. Davis, China, ii. 48.

83 This point was certainly not overlooked by the Catholic moralists, but even the most ardent apology cannot explain away the idea of reparation in the Catholic doctrine of the justification of man (cf. Manzoni, Osservazioni sulla Morale Cattolica, p. 100). Penance consists of contrition, confession, and satisfaction, and contrition itself is chiefly “a willingness to compensate” (Catechism of the Council of Trent, ii. 5. 22).

84 Goblet d’Alviella, Hibbert Lectures on the Origin and Growth of the Conception of God, p. 263.

85 Psalms, li. 16 sq.

86 Moore, loc. cit. col. 4225.

87 Cf. Martineau, Types of Ethical Theory, ii. 203.

That moral indignation is appeased by repentance, and that repentance is the only proper ground for forgiveness, is thus due, not to the specifically moral character of such indignation, but to its being a form of resentment. This is confirmed by the fact that an angry and revengeful man is apt to be in a similar way influenced by the sincere apologies of the offender. As Aristotle said, men are placable in regard to those who acknowledge and repent their guilt: “there is proof of this in the case of chastising servants; for we chastise more violently those who contradict us, and deny their guilt; but towards such as acknowledge themselves to be justly punished, we cease from our wrath.”88 To take an instance from the savage world. The Caroline Islander, according to Mr. Christian, “is inclined to be revengeful, and will bide his time patiently until his opportunity comes. Yet he is not implacable, and counts reconciliation a noble and a princely thing. There is a form of etiquette to be observed on 88these occasions—a present (katom) is made, an apology offered—a piece of sugar-cane accepted by the aggrieved party—honour is satisfied and the matter ends.”89 In the case of revenge, external satisfaction or material compensation is often allowed to take the place of genuine repentance, and the humiliation of the adversary may be sufficient to quiet the angry passion. But the revenge felt by a reflecting mind is not so readily satisfied. It wants to remove the cause which aroused it. The object which resentment is chiefly intent upon, Adam Smith observes, “is not so much to make our enemy feel pain in his turn, as to make him conscious that he feels it upon account of his past conduct, to make him repent of that conduct, and to make him sensible, that the person whom he injured did not deserve to be treated in that manner.”90 The delight of revenge, says Bacon, “seemeth to be not so much in doing the hurt, as in making the party repent.”91

88 Aristotle, Rhetorica, ii. 3. 5.

89 Christian, Caroline Islands, p. 72.

90 Adam Smith, Theory of Moral Sentiments, p. 138 sq.

91 Bacon, ‘Essay IV. Of Revenge,’ in Essays, p. 45. Cf. Montaigne, Essais, ii. 27 (Oeuvres, p. 384).

We can now see the origin of the idea that the true end of punishment is the reformation of the criminal. This idea merely emphasises the most humane element in resentment, the demand that the offender’s will shall cease to be offensive. The principle of reformation has thus itself a retributive origin. This explains the fact, otherwise inexplicable, that the amendment which it has in view is to be effected by the infliction of pain. It also accounts for the inconsistent attitude of the reformationist towards incorrigible offenders, already commented upon. Resentment gives way to forgiveness only in the case of repentance, not in the case of incorrigibility. Hence, not even the reformationist regards incorrigibility as a legitimate ground for exempting a person from punishment, although this flatly contradicts his theory about the true aim of all punishment.

Thus the theories both of determent and of reformation are ultimately offspring of the same emotion that first 89induced men to inflict punishment on their fellow-creatures. It escaped the advocates of these theories that they themselves were under the influence of the very principle they fought against, because they failed to grasp its true import. Rightly understood, resentment is preventive in its nature, and, when sufficiently deliberate, regards the infliction of suffering as a means rather than as an end. It not only gives rise to punishment, but readily suggests, as a proper end of punishment, either determent or amendment or both. But, first of all, moral resentment wants to raise a protest against wrong. And the immediate aim of punishment has always been to give expression to the righteous indignation of the society which inflicts it.

Now it may be thought that men have no right to give vent to their moral resentment in a way which hurts their neighbours unless some benefit may be expected from it. In the case of many other emotions, we hold that the conative element in the emotion ought not to be allowed to develop into a distinct volition or act; and it would seem that a similar view might be taken with reference to the aggressiveness inherent in moral disapproval. It is a notion of this kind that lies at the bottom of the utilitarian theories of punishment. They are protests against purposeless infliction of pain, against crude ideas of retributive justice, against theories hardly in advance of the low feelings of the popular mind. Therefore, they mark a stage of higher refinement in the evolution of the moral consciousness; and if the principles of determent and reformation are open to objections which will be shared by almost everyone, that is due to other circumstances than their demand that punishment should serve a useful end. As we have seen, they ignore the fact that a punishment, in order to be recognised as just, must not transgress the limits set down by moral disapproval, that it must not be inflicted on innocent persons, that it must be proportioned to the guilt, that offenders who are amenable to discipline must not be treated more severely 90than incorrigible criminals. These theories also seem to exaggerate the deterring or reforming influence which punishments exercise upon criminals,92 whilst, in another respect, they take too narrow a view of its social usefulness. Whether its voice inspire fear or not, whether it wake up a sleeping conscience or not, punishment, at all events, tells people in plain terms what, in the opinion of the society, they ought not to do. It gives the multitude a severe lesson in public morality; and it is difficult to see how quite the same effect could be attained by any other method. Retaliation is such a spontaneous expression of indignation, that people would hardly realise the offensiveness of an act which evokes no signs of resentment. Of course, punishment, in the legal sense of the term, is only one form—the most concrete form—of public retaliation; it is, indeed, probable that public opinion exercises a greater influence on men than punishment would do without its aid.93 But punishment, in combination with public opinion, has no doubt to some extent an educating, and not merely a deterring, influence upon the members of a society. As Sir James Stephen observes, “the sentence of the law is to the moral sentiment of the public in relation to any offence what a seal is to hot wax. It converts into a permanent final judgment what might otherwise be a transient sentiment.”94 Finally, it must not be overlooked that the infliction of punishment upon the perpetrator of a grave offence gratifies a strong general desire, and, even though the pain which always accompanies an unsatisfied desire would by itself afford no sufficient justification for subjecting the offence to such intense 91suffering, other more serious consequences might easily result from leaving him unpunished. The public indignation might find a vent in some less regular and less discriminating mode of retaliation, like lynching; or, on the other hand, by remaining unsatisfied, the desire might dwindle away from want of nourishment, and the moral standard suffer a corresponding loss.

92 On the limited efficiency of punishment as a deterrent, see Ferri, op. cit. p. 82 sq. On the moral insensibility of the instinctive and habitual criminal, and absence of remorse, see Havelock Ellis, The Criminal, p. 124 sqq.

93 Cf. Locke, Essay concerning Human Understanding, ii. 28. 12 (Philosophical Works, p. 283); Shaftesbury, ‘Inquiry concerning Virtue and Merit,’ i. 3. 3, in Characteristicks, ii. 64.

94 Stephen, History of the Criminal Law of England, ii. 81. Cf. Shaftesbury, op. cit. ii. 64: “As to punishments and rewards, their efficacy is not so much from the fear or expectation which they raise, as from a natural esteem of virtue, and detestation of villainy, which is awaken’d and excited by these publick expressions of the approbation and hatred of mankind in each case.“

However, it is not to be believed that, in practice, the infliction of punishment is, or ever will be, regulated merely by considerations of social utility, even within the limits of what is recognised as legitimate by the moral sentiment. The retributive desire is so strong, and appears so natural, that we can neither help obeying it, nor seriously disapprove of its being obeyed. The theory that we have a right to punish an offender only in so far as, by doing so, we promote the general happiness, really serves in the main as a justification for gratifying such a desire, rather than as a foundation for penal practice. Moreover, this theory refers, and pretends to refer, only to outward behaviour—to punishment, not to the emotion from which punishment springs. It condemns the retributive act, not the retributive desire.

But at the same time the aggressive element in the emotion itself has undergone a change, which tends to conceal its true nature by partly leading it into a new channel, or, rather, by narrowing the channel in which it discharges itself. Resentment is directed against the cause of the offence by which it was aroused—broadly speaking, the offender. But when duly reflecting upon the matter, we cannot fail to admit that the real cause was not the offender as a whole, but his will. Deliberate and discriminating resentment is therefore apt to turn against the will rather than against the willer; as we have seen, it is desirous to inflict pain on the offender chiefly as a means of removing the cause of pain suffered, i.e., the existence of the bad will. If this is the case with deliberate resentment in general, it must particularly be the case with moral indignation, which is more likely to be 92influenced by sympathy, and hence more discriminate, than non-moral resentment. This fact gives rise to the moral commandment that we should hate, not the sinner, but the sin. The hostile reaction should be focussed on the will of the offender, and his sensibility should be regarded merely as an instrument through which the will is worked upon. But there is little hope that such a demand can ever be strictly enforced. Professor Sidgwick justly remarks that, though moralists try to distinguish between anger directed ”against the act” and anger directed “against the agent,” it may be fairly doubted whether it is within the capacity of ordinary human nature to maintain this distinction in practice.95 The will which offends, and the sensibility which suffers, cannot seriously be looked upon as two different entities the one of which should not be punished for the fault of the other. The person himself is held responsible for the offence. The hostile reaction turns against his will because only by acting upon the will can the cause of pain be removed. But since the remotest ages the aggressive attitude towards this cause has been connected with an instinctive desire to produce counter-pain; and, though we may recognise that such a desire, or rather the volition into which it tends to develop, may be morally justifiable only if it is intended to remove the cause of pain, we can hardly help being indulgent to the gratification of a human instinct which seems to be well nigh ineradicable. It is the instinctive desire to inflict counter-pain that gives to moral indignation its most important characteristic. Without it, moral condemnation and the ideas of right and wrong would never have come into existence. Without it, we should no more condemn a bad man than a poisonous plant. The reason why moral judgments are passed on volitional beings, or their acts, is not merely that they are volitional, but that they are sensitive as well; and however much we try to concentrate our indignation on the act, it derives its peculiar flavour from being directed 93against a sensitive agent. I have heard persons of a highly sympathetic cast of mind assert that a wrong act awakens in them only sorrow, not indignation; but though sorrow be the predominant element in their state of mind, I believe that, on a close inspection, they would find there another emotion as well, one in which there is immanent an element of hostility, however slight. It is true that the intensity of moral indignation cannot always be measured by the actual desire to cause pain to the offender; but its intensity seems nevertheless to be connected with the amount of suffering which the indignant man is willing to let the offender undergo in consequence of the offence. Which of us could ever, quite apart from any utilitarian considerations, feel the same sympathy with a person who suffers on account of his badness as with one who suffers innocently? It is one of the most interesting facts related to the moral consciousness of a higher type, that it in vain condemns the gratification of the very desire from which it sprang. It is like a man of low extraction, who, in spite of all acquired refinement, bears his origin stamped on his face.

95 Sidgwick, Methods of Ethics, p. 364.

 

Whilst resentment is a hostile attitude of mind towards a cause of pain, retributive kindly emotion is a friendly attitude of mind towards a cause of pleasure. Just as in the lower forms of anger there is hardly any definite desire to produce suffering, only a vehement desire to remove the cause of pain, so in the lower form of retributive kindly emotion there is hardly any definite desire to produce pleasure, only a friendly endeavour to retain the cause of the pleasure experienced. When the emotion contains a definite desire to give pleasure in return for pleasure received, and at the same time is felt by the favoured party in his capacity of being himself the object of the benefit, it is called gratitude. We often find intermingled with gratitude a feeling of indebtedness; he upon whom a benefit has been conferred feels himself as a debtor, and regards the benefactor as his creditor. This feeling has 94even been represented as essential to, or as a condition of, gratitude;96 but it is not implied in what I here understand by gratitude. It is one thing to be grateful, and another thing to feel that it is one’s duty to be grateful. A depression of the “self-feeling,” a feeling of humiliation, also frequently accompanies gratitude as a motive for requiting the benefit; but it is certainly not an element in gratitude itself.

96 Horwicz, Psychologische Analysen, ii. 333: “Ohne dieses Gefühl des Verbundenseins … kann keine Dankbarkeit auskommen.” Cf. Milton, Paradise Lost, iv. 52 sqq.

Retributive kindly emotion is a much less frequent phenomenon in the animal kingdom than is the emotion of resentment. In many animal species not even the germ of it is found, and where it occurs it is generally restricted within narrow limits. Anybody may provoke an animal’s anger, but only towards certain individuals it is apt to feel retributive kindliness. The limits for this emotion are marked off by the conditions under which altruistic sentiments in general tend to arise—a subject which will be discussed in another connection. Indeed, social affection is itself essentially retributive. Gregarious animals take pleasure in each other’s company, and with this pleasure is intimately associated kindly feeling towards its cause, the companion himself. Social affection presupposes reciprocity; it is not only a friendly sentiment towards another individual, but towards an individual who is conceived of as a friend.

The intrinsic object of retributive kindliness being to retain a cause of pleasure, we may assume that the definite desire to produce pleasure in return for pleasure received is due to the fact that such a desire materially promotes the object in question—exactly in the same way as the definite desire to inflict pain in return for pain inflicted has become an element in resentment because such a desire promotes the intrinsic object of resentment, the removal of the cause of pain. And as natural selection accounts for the origin of resentment, so it also accounts for the 95origin of retributive kindly emotion. Both of these emotions are useful states of mind; by resentment evils are averted, by retributive kindliness benefits are secured. That there is such a wide difference in their prevalence is explicable from the simple facts that gregariousness—which is the root of social affection, and, largely at least, a condition of the rise of retributive kindly emotions—is an advantage only to some species, not to all, and that even gregarious animals have many enemies, but few friends.

In some cases the friendly reaction in retributive kindliness is directed towards individuals who have in no way been the cause of the pleasure which gave rise to the emotion. So intimate is the connection between the stimulus and the reaction, that he who is made happy often feels a general desire to make others happy.97 But such an indiscriminate reaction is only an offset of the emotion with which we are here concerned. Moreover, retributive kindly emotion often confers benefits upon somebody nearly related to the benefactor, if he himself be out of reach, or in addition to benefits conferred on him. But in such cases the gratitude towards the benefactor is the real motive.

97 That a happy man wants to see glad faces around him, is also due to another cause, which has been pointed out by Dr. Hirn (Origins of Art, p. 83): from their expression he wants to derive further nourishment and increase for his own feeling.

That moral approval—by which I understand that emotion of which moral praise or reward is the outward manifestation—is a kind of retributive kindly emotion and as such allied to gratitude, will probably be admitted without much hesitation.98 Its friendly character is not, like the hostile character of moral disapproval, disguised by any apparently contradictory facts. To confer a benefit upon a person is not generally regarded as wrong, unless, indeed, it involves an encroachment on somebody’s rights or is contrary to the feeling of justice. And that moral approval sometimes bestows its favours upon undeserving 96individuals for the merits of others, can no more invalidate the fact that it is essentially directed towards the cause of pleasure, than the occasional infliction of punishments upon innocent individuals invalidates the fact that moral disapproval is essentially directed against the cause of pain. Unmerited rewards are explicable on grounds analogous to those to which we have traced unmerited punishments.

98 The relationship between gratitude and moral approval has been recognised by Hartley (Observations on Man, i. 520) and Adam Smith (Theory of Moral Sentiments, passim).

The doctrine of family solidarity leads, not only to common responsibility for crimes, but to common enjoyment of merits.

In Madagascar, exemption from punishment was claimed by the descendants of persons who had rendered any particular service to the sovereign or the State, as also by other branches of the family, on the same plea.99 According to Chinese ideas, the virtuous conduct of any individual will result, not only in prosperity to himself, but in a certain quantity of happiness to his posterity, unless indeed the personal wickedness of some of the descendants neutralise the benefits which would otherwise accrue from the virtue of the ancestor;100 and, conversely, the Chinese Government confers titles of nobility upon the dead parents of a distinguished son.101 The idea that the dead share in punya or pâpa, that is, the merit or demerit of the living, and that the happiness of a man in the next life depends on the good works of his descendants, was early familiar to the civilised natives of India; almost all legal deeds of gift contain the formula that the gift is made “for the increase of the punya of the donor and that of his father and mother.”102

99 Ellis, History of Madagascar, 376.

100 Giles, Strange Stories from a Chinese Studio, i. 426, n. 3; ii. 384, n. 63. Doolittle, Social Life of the Chinese, ii. 398.

101 Giles, op. cit. i. 305, n. 6. Wells Williams, Middle Kingdom, i. 422.

102 Barth, Religions of India, p. 52, n. 4.

But the vicarious efficacy of good deeds is not necessarily restricted to the members of the same family.

In a hymn of the Rig-Veda we find the idea that the merits or the pious may benefit their neighbours.103 According to one of the Pahlavi texts, persons who are wholly unable to perform good works are supposed to be entitled to a share of any supererogatory good works performed by others.104 The Chinese believe that 97whole kingdoms are blessed by benevolent spirits for the virtuous conduct of their rulers.105 Yahveh promised not to destroy Sodom for the sake of ten righteous, provided that so many righteous could be found in the town.106 The doctrine of vicarious reward or satisfaction through good works is, in fact, more prevalent than the doctrine of vicarious punishment. Jewish theology has a great deal more to say about the acceptance of the merits of the righteous on behalf of the wicked, than about atonement through sacrifice.107 The Muhammedans, who know nothing of vicarious suffering as a means of expiation, confer merits upon their dead by reciting chapters of the Koran and almsgiving, and some of them allow the pilgrimage to Mecca to be done by proxy.108 Christian theology itself maintains that salvation depends on the merit of the passion of Christ; and from early times the merits of martyrs and saints were believed to benefit other members of the Church.109

103 Rig-Veda, vii. 35. 4.

104 Dînâ-î-Maînôg-î Khirad xv. 3.

105 de Groot, Religious System of China (vol. iv. book) ii. 435.

106 Genesis, xviii. 32.

107 Robertson Smith, Religion of the Semites, p. 424, n. 1.

108 Lane, Modern Egyptians, pp. 247, 248, 532. Sell, op. cit. pp. 242, 278, 287, 288, 298. Cf. Wallin, Första Resa från Cairo till Arabiska öknen, p. 103.

109 Harnack, History of Dogma, ii. 133, n. 3.

For the explanation of these and similar facts various circumstances have to be considered. Good deeds may be so pleasing to a god as to induce him to forgive the sins of the wicked in accordance with the rule that anger yields to joy. There is solidarity not only between members of the same family, but between members of the same social unit; hence the virtues of individuals may benefit the whole community to which they belong. The Catholic theologian argues that, since we are all regenerated unto Christ by being washed in the same baptism, made partakers of the same sacraments, and, especially, of the same meat and drink, the body and blood of Christ, we are all members of the same body. “As, then, the foot does not perform its functions solely for itself, but also for the benefit of the eyes; and as the eyes exercise their sight, not for their own, but for the common benefit of all the members; so should works of satisfaction be deemed common to all the members of the 98Church.”110 Moreover, virtues, like sins, are believed to be in a material way transferable. In Upper Bavaria, when a dead person is laid out, a cake of flour is placed on his breast in order to absorb the virtues of the deceased, whereupon the cake is eaten by the nearest relatives.111 And we are told that, in a certain district in the north of England, if a child is brought to the font at the same time as a body is committed to the ground, whatever was “good” in the deceased person is supposed to be transferred to the little child, since God does not allow any “goodness” to be buried and lost to the world, and such “goodness” is most likely to enter a little child coming to the sacrament of Baptism.112 A blessing, also, no less than a curse, is looked upon in the light of material energy; goodness is not required for the acquisition of it, mere contact will do. Blessings are hereditary:—“The just man walketh in his integrity: his children are blessed after him.”113

110 Catechism of the Council of Trent, ii. 5. 72.

111 Am Urquell, ii. 101.

112 Peacock, ‘Executed Criminals and Folk-Medicine,’ in Folk-Lore, vii. 280.

113 Proverbs, xx. 7.

It is no doubt more becoming for a god to pardon the sinner on account of the merits of the virtuous, than to punish the innocent for the sins of the wicked. It shows that his compassion overcomes his wrath; and the mercy of the deity is, among all divine attributes, that on which the higher monotheistic religions lay most stress. Allah said, “Whoso doth one good act, for him are ten rewards, and I also give more to whomsoever I will; and whoso doth ill, its retaliation is equal to it, or else I forgive him.”114 Nevertheless, the moral consciousness of a higher type can hardly approve that the wicked should be pardoned for the sake of the virtuous, or that the reward for an act should be bestowed upon anybody else than the agent. The doctrine of vicarious merit or recompense is not just; it involves that badness is unduly ignored; it is based on crude ideas of goodness and merit. The theory of opera supererogativa, as we have seen, attaches badness 99and goodness to external acts rather than to mental facts, and assumes that reparation can be given for badness, whereas the scrutinising moral judge only forgives badness in case it is superseded by repentance. If thus a bad act cannot be compensated by a good one, even though both be performed by one and the same person, it can still less be compensated by the good act of another man. From various quarters we hear protests against the notion of vicarious merit—protests which emphasise the true direction of moral reward. Ezekiel, who reproved the old idea that the children’s teeth are set on edge because the fathers have eaten sour grapes, also taught that a wicked son is to reap no benefit from the blessings bestowed upon a righteous father.115 “Fear the day,” says the Koran, “wherein no soul shall pay any recompense for another soul.”116 The Buddhistic Dhammapada contains the following passage, which sums up our whole argument:—“By oneself the evil is done, by oneself one suffers; by oneself evil is left undone, by oneself one is purified. The pure and the impure stand and fall by themselves, no one can purify another.”117

114 Lane-Poole, Speeches and Table-Talk of Mohammad, p. 147.

115 Ezekiel, xviii. 5 sqq.

116 Koran, ii. 44.

117 Dhammapada, xii. 165.

 

 

 

 

CHAPTER IV

THE NATURE OF THE MORAL EMOTIONS (concluded)

WE have seen that moral disapproval is a form of resentment, and that moral approval is a form of retributive kindly emotion. It still remains for us to examine in what respects these emotions differ from kindred non-moral emotions—disapproval from anger and revenge, approval from gratitude—in other words, what characterises them as specifically moral emotions.

It is a common opinion, held by all who regard the intellect as the source of moral concepts, that moral emotions only arise in consequence of moral judgments, and that, in each case, the character of the emotion is determined by the predicate of the judgment. We are told that, when the intellectual process is completed, when the act in question is definitely classed under such or such a moral category, then, and only then, there follows instantaneously a feeling of either approbation or disapprobation as the case may be.1 When we hear of a murder, for instance, we must discern the wrongness of the act before we can feel moral indignation at it.

1 Fleming, Manual of Moral Philosophy, p. 97 sqq. Fowler, Principles of Morals, ii. 198 sqq.

It is true that a moral judgment may be followed by a moral emotion, that the finding out the tendency of a certain mode of conduct to evoke indignation or approval is apt to call forth such an emotion, if there was none before, or otherwise to increase the one existing. It is, moreover, true that the predicate of a moral judgment, as 101well as the generalisation leading up to such a predicate, may give a specific colouring to the approval or disapproval which it produces, quite apart from the general characteristics belonging to that emotion in its capacity of a moral emotion; the concepts of duty and justice, for instance, no doubt have a peculiar flavour of their own. But for all this, moral emotions cannot be described as resentment or retributive kindliness called forth by moral judgments. Such a definition would be a meaningless play with words. Whatever emotions may follow moral judgments, such judgments could never have been pronounced unless there had been moral emotions antecedent to them. Their predicates, as was pointed out above, are essentially based on generalisations of tendencies in certain phenomena to arouse moral emotions; hence the criterion of a moral emotion can in no case depend upon its proceeding from a moral judgment. But at the same time moral judgments, being definite expressions of moral emotions, naturally help us to discover the true nature of these emotions.

The predicate of a moral judgment always involves a notion of disinterestedness. When pronouncing an act to be good or bad, I mean that it is so, quite independently of any reference it might have to my own interests. A moral judgment may certainly have a selfish motive; but then it, nevertheless, pretends to be disinterested, which shows that disinterestedness is a characteristic of moral concepts as such. This is admitted even by the egoistic hedonist, who maintains that we approve and condemn acts from self-love. According to Helvetius, it is the love of consideration that a virtuous man takes to be in him the love of virtue; and yet everybody pretends to love virtue for its own sake, “this phrase is in every one’s mouth and in no one’s heart.”2

2 Helvetius, De l’Homme, i. 263.

If the moral concepts are essentially generalisations of tendencies in certain phenomena to call forth moral emotions, and, at the same time, contain the notion of 102disinterestedness, we must conclude that the emotions from which they spring are felt disinterestedly. Of this fact we find an echo—more or less faithful—in the maxims of various ethical theorisers, as well as practical moralists. We find it in the utilitarian demand that, in regard to his own happiness and that of others, an agent should be “as strictly impartial as a disinterested and benevolent spectator”;3 in the “rule of righteousness” laid down by Samuel Clarke, that “We so deal with every man, as in like circumstances we could reasonably expect he should with us”;4 in Kant’s formula, “Act only on that maxim which thou canst at the same time will to become a universal law”;5 in Professor Sidgwick’s so-called axiom, “I ought not to prefer my own lesser good to the greater good of another”;6 in the biblical sayings, “Thou shalt love thy neighbour as thyself,”7 and, “Whatsoever ye would that men should do to you, do ye even so to them.”8 The same fact is expressed in the Indian Mahabharata, where it is said:—“Let no man do to another that which would be repugnant to himself; this is the sum of righteousness; the rest is according to inclination. In refusing, in bestowing, in regard to pleasure and to pain, to what is agreeable and disagreeable, a man obtains the proper rule by regarding the case as like his own.”9 Similar words are ascribed to Confucius.10 When Tsze-kung asked if there is any one word which may serve as a rule of practice for all one’s life, the Master answered, “Is not Reciprocity such a word? What you do not want done to yourself, do not do to 103others.” And in another utterance Confucius showed that the rule had for him not only a negative, but a positive form. He said that, in the way of the superior man, there are four things to none of which he himself had as yet attained; to serve his father as he would require his son to serve him, to serve his prince as he would require his minister to serve him, to serve his elder brother as he would require his younger brother to serve him, and to set the example in behaving to a friend as he would require the friend to behave to him.11

3 Stuart Mill, Utilitarianism, p. 24.

4 Clarke, Discourse concerning the Unchangeable Obligations of Natural Religion, p. 201.

5 Kant, Grundlegung zur Metaphysik der Sitten, sec. 2 (Sämmtliche Werke, iv. 269).

6 Sidgwick, Methods of Ethics, p. 383. However, as we have seen above, this so-called “axiom” is not a correct representation of the disinterestedness of moral emotions.

7 Leviticus, xix. 18. St. Matthew, xxii. 39.

8 St. Matthew, vii. 12. Cf. St. Luke, vi. 31.

9 Mahabharata, xiii. 5571 sq., in Muir, Religious and Moral Sentiments, rendered from Sanskrit Writers, p. 107. Cf. Panchatantra, iii. (Benfey’s translation, ii. 235).

10 Lun Yü¸, xv. 23. Cf. ibid. xii. 2; Chung Yung, xiii. 3.

11 Chung Yung, xiii. 4.

This “golden rule” is not, as has been sometimes argued, a rule of retaliation.12 It does not say, “Do to others what they wish to do to you”; it says, “Do to others what you wish, or require, them to do to you.” It brings home to us the fact that moral rules are general rules, which ought to be obeyed irrespectively of any selfish considerations. If formulated as an injunction that we should treat our neighbour in the same manner as we consider that he, under exactly similar circumstances, ought to treat us, it is simply identical with the sentence, “Do your duty,” with emphasis laid on the disinterestedness which is involved in the very conception of duty. So far, St. Augustine was right in saying that “Do as thou wouldst be done by” is a sentence which all nations under heaven are agreed upon.13

12 Letourneau, L’Évolution religieuse dans les diverses races humaines, p. 553.

13 St. Augustine, quoted by Lilly, Right and Wrong, p. 106.

Disinterestedness, however, is not the only characteristic by which moral indignation and approval are distinguished from other, non-moral, kinds of resentment or retributive kindly emotion. It is, indeed, itself a form of a more comprehensive quality which characterises moral emotions—apparent impartiality. If I pronounce an act done to a friend or to an enemy to be either good or bad, that implies that I assume it to be so independently of the fact that the person to whom the act is done is my friend or my enemy. Conversely, if I pronounce an 104act done by a friend or by an enemy to be good or bad, that implies that I assume the act to be either good or bad independently of my friendly or hostile feelings towards the agent. All this means that resentment and retributive kindly emotion are moral emotions in so far as they are assumed by those who feel them to be uninfluenced by the particular relationship in which they stand, both to those who are immediately affected by the acts in question, and to those who perform those acts. A moral emotion, then, is tested by an imaginary change of the relationship between him who approves or disapproves of the mode of conduct by which the emotion was evoked and the parties immediately concerned, whilst the relationship between the parties themselves is left unaltered. At the same time it is not necessary that the moral emotion should be really impartial. It is sufficient that it is tacitly assumed to be so, nay, even that it is not knowingly partial. In attributing different rights to different individuals, or classes of individuals, we are often, in reality, influenced by the relationship in which we stand to them, by personal sympathies and antipathies; and yet those rights may be moral rights, in the strict sense of the term, not mere preferences, namely, if we assume that any impartial judge would recognise our attribution of rights as just, or even if we are unaware of its partiality. Similarly, when the savage censures a homicide committed upon a member of his own tribe, but praises one committed upon a member of another tribe, his censure and praise are certainly influenced by his relations to the victim, or to the agent, or to both. He does not reason thus: it is blamable to kill a member of one’s own tribe, and it is praiseworthy to kill a member of a foreign tribe—whether the tribe be mine or not. Nevertheless, his blame and his praise must be regarded as expressions of moral emotions.

Finally, a moral emotion has a certain flavour of generality. We have previously noticed that a moral judgment very frequently implies some vague assumption 105that it must be shared by everybody who possesses both a sufficient knowledge of the case and a “sufficiently developed” moral consciousness. We have seen, however, that this assumption is illusory. It cannot, consequently, be regarded as a conditio sine quâ non for a moral judgment, unless, indeed, it be maintained that such a judgment, owing to its very nature, is necessarily a chimera—an opinion which, to my mind, would be simply absurd. But, though moral judgments cannot lay claim to universality or “objectivity,” it does not follow that they are merely individual estimates. Even he who fully sees their limitations must admit that, when he pronounces an act to be good or bad, he gives expression to something more than a personal opinion, that his judgment has reference, not only to his own feelings, but to the feelings of others as well. And this is true even though he be aware that his own conviction is not shared by those around him, nor by anybody else. He then feels that it would be shared if other people knew the act and all its attendant circumstances as well as he does himself, and if, at the same time, their emotions were as refined as are his own. This feeling gives to his approval or indignation a touch of generality, which belongs to public approval and public indignation, but which is never found in any merely individual emotion of gratitude or revenge.

 

The analysis of the moral emotions which has been attempted in this and the two preceding chapters, holds good, not only for such emotions as we feel on account of the conduct of others, but for such emotions as we feel on account of our own conduct as well. Moral self-condemnation is a hostile attitude of mind towards one’s self as the cause of pain, moral self-approval is a kindly attitude of mind towards one’s self as a cause of pleasure. Genuine remorse, though focussed on the will of the person who feels it, involves, vaguely or distinctly, some desire to suffer. The repentant man wants to think of the wrong he has committed, he wants clearly to realise 106its wickedness; and he wants to do this, not merely because he desires to become a better man, but because it gives him some relief to feel the sting in his heart. If punished for his deed, he willingly submits to the punishment. The Philippine Islander, says Mr. Foreman, if he recognises a fault by his own conscience, will receive a flogging without resentment or complaint, although, “if he is not so convinced of the misdeed, he will await his chance to give vent to his rancour.”14 We may feel actual hatred towards ourselves, we may desire to inflict bodily suffering upon ourselves as a punishment for what we have done;15 nay, there are instances of criminals, guilty of capital offences, having given themselves up to the authorities in order to appease their consciences by suffering the penalty of the law.16 Yet the desire to punish ourselves has a natural antagonist in our general aversion to pain, and this often blunts the sting of the conscience. Suicide prompted by remorse, which sometimes occurs even among savages,17 is to be regarded rather as a method of putting an end to agonies, than as a kind of self-execution; and behind the self-torments of the sinner frequently lurks the hopeful prospect of heavenly bliss. Self-approval, again, is not merely joy at one’s own conduct, but is a kindly emotion, a friendly attitude towards one’s self. Such an attitude, for instance, lies at the bottom of the feeling that one’s own conduct merits praise or reward.

14 Foreman, Philippine Islands, p. 185. Cf. Hinde, The Last of the Masai, p. 34; Zöller, Das Togoland, p. 37.

15 Cf. Jodl, Lehrbuch der Psychologie, p. 675.

16 von Feuerbach, Aktenmässige Darstellung merkwürdiger Verbrechen, i. 249; ii. 473, 479 sq. von Lasaulx, Sühnopfer der Griechen und Römer, p. 6.

17 See infra, on Suicide.

Not every form of self-reproach or of self-approval is a moral emotion—no more than is every form of resentment or retributive kindly emotion towards other persons. We may be angry with ourselves on account of some act of ours which is injurious to our own interests. He who has lost at play may be as vexed at himself as he who has 107cheated at play, and the egoist may bitterly reproach himself for having yielded to a momentary impulse of benevolence, or even to conscience itself. In order to be moral emotions, our self-condemnation and self-approval must present the same characteristics as make resentment and retributive kindliness moral emotions when they are felt with reference to the conduct of other people. A person does not feel remorse when he reproaches himself from an egoistic motive, or when he afterwards regrets that he has sacrificed the interests of his children to the impartial claim of justice. Nor does a person feel moral self-approval when he is pleased with himself for having committed an act which he recognises as selfish or unjust. And besides being disinterested and apparently impartial, remorse and moral self-approval have a flavour of generality. As Professor Baldwin remarks, moral approval or disapproval, not only of other people, but of one’s self, “is never at its best except when it is accompanied, in the consciousness which has it, with the knowledge or belief that it is also socially shared.”18 Indeed, almost inseparable from the moral judgments which we pass on our own conduct seems to be the image of an impartial outsider who acts as our judge.

18 Baldwin, Social and Ethical Interpretation in Mental Development, p. 314.

 

 

 

 

 

CHAPTER V

THE ORIGIN OF THE MORAL EMOTIONS

WE have found that resentment and retributive kindly emotion are easily explicable from their usefulness, both of them having a tendency to promote the interests of the individuals who feel them. This explanation also holds good for the moral emotions, in so far as they are retributive emotions: it accounts for the hostile attitude of moral disapproval towards the cause of pain, and for the friendly attitude of moral approval towards the cause of pleasure. But it still remains for us to discover the origin of those elements in the moral emotions by which they are distinguished from other, non-moral, retributive emotions. First, how shall we explain their disinterestedness?

We have to distinguish between different classes of conditions under which disinterested retributive emotions arise. In the first place, we may feel disinterested resentment, or disinterested retributive kindly emotion, on account of an injury inflicted, or a benefit conferred, upon another person with whose pain, or pleasure, we sympathise, and in whose welfare we take a kindly interest. Our retributive emotions are, of course, always reactions against pain, or pleasure, felt by ourselves; this holds true for the moral emotions as well as for revenge and gratitude. The question to be answered, then, is, Why should we, quite disinterestedly, feel pain calling forth indignation because our neighbour is hurt, and pleasure calling forth approval because he is benefited?

109That a certain act causes pleasure or pain to the by-stander is partly due to the close association which exists between these feelings and their outward expressions. The sight of a happy face tends to produce some degree of pleasure in him who sees it; the sight of the bodily signs of suffering tends to produce a feeling of pain. In either case the feeling of the spectator is the result of a process of reproduction, the perception of the physical manifestation of the feeling recalling the feeling itself on account of the established association between them.

Sympathetic pain or pleasure may also be the result of an association between cause and effect, between the cognition of a certain act or situation and the feeling generally produced by this act or situation. A blow may cause pain to the spectator before he has witnessed its effect on the victim. The sympathetic feeling is of course stronger when both kinds of association concur in producing it, than when it is the result of only one. As Adam Smith observes, “general lamentations which express nothing but the anguish of the sufferer, create rather a curiosity to inquire into his situation, along with some disposition to sympathise with him, than any actual sympathy that is very sensible.”1 On the other hand, the sympathy which springs from an association between cause and effect is much enhanced by the perception of outward signs of pleasure or pain in the individual with whom we sympathise.

1 Adam Smith, Theory of Moral Sentiments, p. 7.

But the sympathetic feeling which results from association alone is not what is generally understood by sympathy. Arising merely from the habitual connection of certain cognitions with certain feelings in the experience of the spectator, it is, strictly speaking, not at all concerned with the feelings of the other person. It is not a reflex of what he feels—which, indeed, is a matter of complete indifference—and the activity which it calls forth is thoroughly selfish. If it is a feeling of pain, the spectator naturally, for his own sake, tries to get rid of it; but this 110may be done by turning the back upon the sufferer, and looking out for some diversion. The sympathetic feeling which springs from association alone, may also produce a benevolent or hostile reaction against its immediate cause: the smiling face often evokes a kindly feeling towards the smiler, and “the sight of suffering often directs irritation against the sufferer.”2 In such cases it is the other person himself, rather than his benefactor or his tormentor, that is regarded as cause by the sympathiser. When based on association alone, the sympathetic feeling thus lacks the most vital characteristic of sympathy, in the popular sense of the term: it lacks kindliness.3

2 Leslie Stephen, Science of Ethics, p. 243.

3 The difference between sympathy and kindly (“tender”) emotion has been commented upon by Professor Ribot (Psychology of the Emotions, p. 233), and by Mr. Shand, in his excellent chapter on the ‘Sources of Tender Emotion,’ in Stout’s Groundwork of Psychology, p. 198 sqq.

Sympathy, in the ordinary use of the word, requires the co-operation of the altruistic sentiment or affection—a disposition of mind which is particularly apt to display itself as kindly emotion towards other beings. This sentiment,4 only, induces us to take a kindly interest in the feelings of our neighbours. It involves a tendency, or willingness, and, when strongly developed, gives rise to an eager desire, to sympathise with their pains and pleasures. Under its influence, our sympathetic feeling is no longer a mere matter of association; we take an active part in its production, we direct our attention to any circumstance which we believe may affect the feelings of the person whom we love, to any external manifestation of his emotions. We are anxious to find out his joys and sorrows, so as to be able to rejoice with him and to suffer with him, and, especially, when he stands in need of it, to console or to help him. For the altruistic sentiment is not merely willingness to sympathise; it is above all a conative 111disposition to do good. The latter aptitude must be regarded rather as the cause than as the result of the former; affection is not, as Adam Smith maintained,5 merely habitual sympathy, or its necessary consequence. It is true that sympathetic pain, unaided by kindliness, may induce a person to relieve the suffering of his neighbour, instead of shutting his eyes to it; but then he does so, not out of regard to the feelings of the sufferer, but simply to free himself of a painful cognition. Nor must it be supposed that the altruistic sentiment prompts to assistance only by strengthening the sympathetic feeling. The sight of the wounded traveller may have caused no less pain to the Pharisee than to the good Samaritan; yet it would have been impossible for the Samaritan to dismiss his pain by going away, since he felt a desire to assist the wounded, and his desire would have been left ungratified if he had not stopped by the wayside. To the egoist, the relief offered to the sufferer is a means of suppressing the sympathetic pain; to the altruist, the sympathetic pain is, so to say, a means of giving relief. The altruist wants to know, to feel the pain of his neighbour, because he desires to help him. Why are the most kind-hearted people often the most cheerful, if not because they think of alleviating the misery of their fellow-creatures, instead of indulging in the sympathetic pain which it evokes?

4 I use the word “sentiment” in the sense proposed by Mr. Shand, in his article, ‘Character and the Emotions,’ in Mind, N.S. v. 203 sqq., and adopted by Professor Stout, op. cit. p. 221 sqq. Sentiments cannot be actually felt at any one moment; “they are complex mental dispositions, and may, as divers occasions arise, give birth to the whole gamut of the emotions” (ibid. p. 223 sq.).

5 Adam Smith, op. cit. p. 323.

It is obvious, then, that sympathy aided by the altruistic sentiment—sympathy in the common sense—tends to produce disinterested retributive emotions. When we to some extent identify, as it were, our feelings with those of our neighbour, we naturally look upon any person who causes him pleasure or pain as the cause of our sympathetic pleasure or pain, and are apt to experience towards that person a retributive emotion similar in kind, if not always in degree, to the emotion which we feel when we are ourselves benefited or injured. In all animal species which possess altruistic sentiments in some form or other, we may be sure to find sympathetic resentment as their accompaniment.112 A mammalian mother is as hostile to the enemy of her young as to her own enemy. Among social animals whose gregarious instinct has developed into social affection,6 sympathetic resentment is felt towards the enemy of any member of the group; they mutually defend each other, and this undoubtedly involves some degree of sympathetic anger. With reference to animals in confinement and domesticated animals, many striking instances of this emotion might be quoted, even in cases when injuries have been inflicted on members of different species to which they have become attached. Professor Romanes’ terrier, “whenever or wherever he saw a man striking a dog, whether in the house, or outside, near at hand or at a distance, … used to rush in to interfere, snarling and snapping in a most threatening way.”7 Darwin makes mention of a little American monkey in the Zoological Gardens of London which, when seeing a great baboon attack his friend, the keeper, rushed to the rescue and by screams and bites so distracted the baboon, that the man was able to escape.8 The dog who flies at any one who strikes, or even touches, his master, is a very familiar instance of sympathetic resentment. The Rev. Charles Williams mentions a dog at Liverpool who saved a cat from the hands of some young ruffians who were maltreating it: he rushed in among the boys, barked furiously at them, terrified them into flight, and carried the cat off in his mouth, bleeding and almost senseless, to his kennel, where he laid it on the straw, and nursed it.9 In man, sympathetic resentment begins at an early age. Professor Sully mentions a little boy under four who was indignant at any picture where an animal suffered.10

6 The connection between social affection and the gregarious instinct will be discussed in a subsequent chapter.

7 Romanes, Animal Intelligence, p. 440.

8 Darwin, Descent of Man, p. 103. Cf. Fisher, in Revue Scientifique, xxxiii. 618. A curious instance of a terrier “avenging” the death of another terrier, his inseparable friend, is mentioned by Captain Medwin (Angler in Wales, ii. 162-164, 197, 216 sq.).

9 Williams, Dogs and their Ways, p. 43.

10 Sully, Studies of Childhood, p. 250.

The altruistic sentiments of mankind will be treated at 113length in subsequent chapters. We shall find reason to believe that not only maternal, but to some extent, paternal and conjugal affection, prevailed in the human race from ancient times, and that social affection arose in those days when the conditions of life became favourable to an expansion of the early family, when the chief obstacle to a gregarious life—scarcity of food—was overcome, and sociality, being an advantage to man, became his habit. There are still savages who live in families rather than in tribes, but we know of no people among whom social organisation outside the family is totally wanting. Later discoveries only tend to confirm Darwin’s statement that, though single families or only two or three together, roam the solitudes of some savage lands, they always hold friendly relations with other families inhabiting the same district; such families occasionally meeting in council and uniting for their common defence.11 But as a general rule, to which there are few exceptions, the lower races live in communities larger than family groups, and all the members of the community are united with one another by common interests and common feelings. Of the harmony, mutual good-will, and sense of solidarity, which under normal conditions prevail in these societies, much evidence will be adduced in following pages. Mr. Melville’s remark with reference to some Marquesas cannibals may be quoted as to some extent typical. “With them,” he says, “there hardly appeared to be any difference of opinion upon any subject whatever…. They showed this spirit of unanimity in every action of life: everything was done in concert and good fellowship.”12 When a member of the group is hurt, the feeling of unanimity takes the form of public resentment. As Robertson observed long ago, “in small communities, every man is touched with the injury or affront offered to the body of which he is a member, as if it were a personal attack upon his own honour or safety. The desire of revenge is communicated from breast to breast, 114and soon kindles into rage.”13 Speaking of some Australian savages, Mr. Fison remarks:—“To the savage, the whole gens is the individual, and he is full of regard for it. Strike the gens anywhere, and every member of it considers himself struck, and the whole body corporate rises up in arms against the striker.”14 Nobody will deny that there is a disinterested element in this public resentment, even though every member of the group consider the enemy of any other member to be actually his own enemy as well, and, partly, hate him as such.

11 Darwin, op. cit. p. 108.

12 Melville, Typee, p. 297 sq.

13 Robertson, History of America, i. 350. Cf. Clifford’s theory of the “tribal self” (Lectures and Essays, p. 290 sqq.). He says (ibid. p. 291), “The savage is not only hurt when anybody treads on his foot, but when anybody treads on his tribe.”

14 Fison and Howitt, Kamilaroi and Kurnai, p. 170.

Our explanation of what has here been called “sympathetic resentment,” however, is not yet complete. This emotion, as we have seen, may be a reaction against sympathetic pain; but it may also be directly produced by the cognition of the signs of anger. In the former case it is, strictly speaking, independent of the emotion of the injured individual; we may feel resentment on his behalf though he himself feels none. In the latter case it is a reflected emotion, felt independently of the cause of the original emotion of which it is a reflection—as when the yells and shrieks of a street dog-fight are heard, and dogs from all sides rush to the spot, each dog being apparently ready to bite any of the others. In the former case, it is, by the medium of sympathetic pain, closely connected with the inflicted injury; in the latter case it may even be the reflection of an emotion which is itself sympathetic, and the origin of which is perhaps out of sight. In an infuriated crowd the one gets angry because the other is angry, and very often the question, Why? is hardly asked. This form of sympathetic resentment is of considerable importance both as an originator and as a communicator of moral ideas. To teach that a certain act is wrong is to teach that it is an object, and a proper object, of moral indignation, and the aim of the instructor 115is to inspire a similar indignation in the mind of the pupil. An intelligent teacher tries to attain this end by representing the act in such a light as to evoke disapproval independently of any appeal to authority; but, unfortunately, in many cases where the duties of current morality are to be enjoined, he cannot do so—for a very obvious reason. Of various acts which, though inoffensive by themselves, are considered wrong, he can say little more than that they are forbidden by God and man; and if, nevertheless, such acts are not only professed, but actually felt, to be wrong, that is due to the fact that men are inclined to sympathise with the resentment of persons for whom they feel regard. It is this fact that accounts for the connection between the punishment of an act and the consequent idea that it deserves to be punished. We shall see that the punishment which society inflicts is, as a rule, an expression of its moral indignation; but there are instances in which the order is reversed, and in which human, or, as it may be supposed, divine, punishment or anger is the cause, and moral disapproval the effect. Children, as everybody knows, grow up with their ideas of right and wrong graduated, to a great extent, according to the temper of the father or mother;15 and men are not seldom, as Hobbes said, “like little children, that have no other rule of good and evill manners, but the correction they receive from their Parents, and Masters.”16 The case is the same with any outbreak of public resentment, with any punishment inflicted by society at large. However selfish it may be in its origin, to whatever extent it may spring from personal motives, it always has a tendency to become in some degree disinterested, each individual not only being angry on his own behalf, but at the same time reflecting the anger of everybody else.

15 Cf. Baring-Gould, Origin and Developwent of Religious Belief, i. 212.

16 Hobbes, Leviathan, i. 2, p. 76.

Any means of expressing resentment may serve as a communicator of the emotion. Besides punishment, language deserves special mention. Moral disapproval may 116be evoked by the very sounds of certain words, like “murder,” “theft,” “cowardice,” and others, which not merely indicate the commission of certain acts, but also express the opprobrium attached to them. By being called a “liar,” a person is more disgraced than by any plain statement of his untruthfulness; and by the use of some strong word the orator raises the indignation of a sympathetic audience to its pitch.

All the cases of disinterested resentment which we have hitherto considered fall under the heading of sympathetic resentment. But there are other cases into which sympathy does not enter at all. Resentment is not always caused by the infliction of an injury; it may be called forth by any feeling of pain traceable to a living being as its direct or indirect cause. Quite apart from our sympathy with the sufferings of others, there are many cases in which we feel hostile towards a person on account of some act of his which in no way interferes with our interests, which conflicts with no self-regarding feeling of ours. There are in the human mind what Professor Bain calls “disinterested antipathies,” sentimental aversions “of which our fellow-beings are the subjects, and on account of which we overlook our own interest quite as much as in displaying our sympathies and affections.”17 Differences of taste, habit, and opinion, are particularly apt to create similar dislikes, which, as will be seen, have played a very prominent part in the moulding of the moral consciousness. When a certain act, though harmless by itself (apart from the painful impression it makes upon the spectator), fills us with disgust or horror, we may feel no less inclined to inflict harm upon the agent, than if he had committed an offence against person, property, or good name. And here, again, our resentment is sympathetically increased by our observing a similar disgust in others. We are easily affected by the aversions and likings of our neighbours. As Tucker said, “we grow to love things we perceive 117them fond of, and contract aversions from their dislikes.”18

17 Bain, Emotions and the Will, p. 268.

18 Tucker, Light of Nature Pursued, i. 154.

We have already seen that sympathy springing from an altruistic sentiment may produce, not only disinterested resentment, but disinterested retributive kindly emotion as well. When taking a pleasure in the benefit bestowed on our neighbour, we naturally look with kindness upon the benefactor; and just as sympathetic resentment may be produced by the cognition of the outward signs of resentment, so sympathetic retributive kindly emotion may be produced by the signs of retributive kindliness. Language communicates emotions by terms of praise, as well as by terms of condemnation; and a reward, like a punishment, tends to reproduce the emotion from which it sprang. Moreover, men have disinterested likings, as they have disinterested dislikes. As an instance of such likings may be mentioned the common admiration of courage when felt irrespectively of the object for which it is displayed.

Having thus found the origin of disinterested retributive emotions, we have at the same time partly explained the origin of the moral emotions. But, as we have seen, disinterestedness is not the sole characteristic by which moral indignation and approval are distinguished from other retributive emotions: a moral emotion is assumed to be impartial, or, at least, is not knowingly partial, and it is coloured by the feeling of being publicly shared. However, the real problem which we have now to solve is not how retributive emotions may become apparently impartial and be coloured by a feeling of generality, but why disinterestedness, apparent impartiality, and the flavour of generality have become characteristics by which so-called moral emotions are distinguished from other retributive emotions. The solution of this problem lies in the fact that society is the birthplace of the moral consciousness; that the first moral judgments expressed, not the private emotions of isolated individuals, but emotions which were 118felt by the society at large; that tribal custom was the earliest rule of duty.

Customs have been defined as public habits, as the habits of a certain circle, a racial or national community, a rank or class of society. But whilst being a habit, custom is at the same time something else as well. It not merely involves a frequent repetition of a certain mode of conduct, it is also a rule of conduct. As Cicero observes, the customs of a people “are precepts in themselves.”19 We say that “custom commands,” or “custom demands,” and speak of it as “strict” and “inexorable”; and even when custom simply allows the commission of a certain class of actions, it implicitly lays down the rule that such actions are not to be interfered with.

19 Cicero, De Officiis, i. 41.

The rule of custom is conceived of as a moral rule, which decides what is right and wrong.20 “Les loix de la conscience,” says Montaigne, “que nous disons naistre de nature, naissent de la coustume.”21 Mr. Howitt once said to a young Australian native with whom he was speaking about the food prohibited during initiation, “But if you were hungry and caught a female opossum, you might eat it if the old men were not there.” The youth replied, “I could not do that; it would not be right”; and he could give no other reason than that it would be wrong to disregard the customs of his people.22 Mr. Bernau says of the British Guiana Indians:—“Their moral sense of good and evil is entirely regulated by the customs and practices inherited from their forefathers. What their predecessors believed and did must have been right, and they deem it the height of presumption to suppose that any could think and act otherwise.”23 The moral evil of the pagan Greenlanders “was all that was contrary to laws and customs, as 119regulated by the angakoks,” and when the Danish missionaries tried to make them acquainted with their own moral conceptions, the result was that they “conceived the idea of virtue and sin as what was pleasing or displeasing to Europeans, as according or disaccording with their customs and laws.”24 “The Africans, like most heathens,” Mr. Rowley observes, “do not regard sin, according to their idea of sin, as an offence against God, but simply as a transgression of the laws and customs of their country.”25 The Ba-Ronga call derogations of universally recognised custom yila, prohibited, tabooed.26 The Bedouins of the Euphrates “make no appeal to conscience or the will of God in their distinctions between right and wrong, but appeal only to custom.”27 According to the laws of Manu, the custom handed down in regular succession since time immemorial “is called the conduct of virtuous men.”28 The Greek idea of the customary, τὸ νόμιμον, shows the close connection between morality and custom; and so do the words ἔθος, ἤθος, and ἠθικά, the Latin mos and moralis, the German Sitte and Sittlichkeit.29 Moreover, in early society, customs are not only moral rules, but the only moral rules ever thought of. The savage strictly complies with the Hegelian command that no man must have a private conscience. The following statement, which refers to the Tinnevelly Shanars, may be quoted as a typical example:—“Solitary individuals amongst them rarely adopt any new opinions, or any new course of procedure. They follow the multitude to do evil, and they follow the multitude to do good. They think in herds.”30

20 Cf. Austin, Lectures on Jurisprudence, i. 104; Tönnies, ‘Philosophical Terminology,’ in Mind, N.S., viii. 304. Von Jhering (Zweck im Recht, ii. 23) defines the German Sitte as “die im Leben des Volks sich bildende verpflichtende Gewohnheit”; and a similar view is expressed by Wundt (Ethik, p. 128 sq.).

21 Montaigne, Essais, i. 22 (Œuvres, p. 48).

22 Fison and Howitt, op. cit. p. 256 sq.

23 Bernau, Missionary Labours in British Guiana, p. 60.

24 Rink, Greenland, p. 201 sq.

25 Rowley, Religion of the Africans, p. 44.

26 Junod, Ba-Ronga, p. 477.

27 Blunt, Bedouin Tribes of the Euphrates, ii. 224.

28 Laws of Manu, ii. 18.

29 For the history of these words, see Wundt, op. cit. p. 19 sqq. For other instances illustrating the moral character of custom, see Maclean, Compendium of Kafir Law and Customs, p. 34 (Amaxosa); Macpherson, Memorials of Service in India, p. 94 (Kandhs); Kubary, Ethnographische Beiträge zur Kenntniss der Karolinischen Inselgruppe, i. 73 (Pelew Islanders); Smith, Chinese Characteristics, p. 119.

30 Caldwell, Tinnevelly Shanars, p. 69.

Disobedience to custom evokes public indignation. In 120the lower stages of civilisation, especially, custom is a tyrant who binds man in iron fetters, and who threatens the transgressor, not only with general disgrace, but often with bodily suffering. “To believe that man in a savage state is endowed with freedom either of thought or action,” says Sir G. Grey, “is erroneous in the highest degree”;31 and this statement is corroborated by an array of facts from all quarters of the savage world.32 Now, as the rule of custom is a moral rule, the indignation aroused by its transgression is naturally a moral emotion. Moreover, where all the duties incumbent on a man are expressed in the customs of the society to which he belongs, it is obvious that the characteristics of moral indignation are to be sought for in its connection with custom. The most salient feature of custom is its generality. Its transgression calls forth public indignation; hence the flavour of generality which characterises moral disapproval. Custom is fixed once for all, and takes no notice of the preferences of individuals. By recognising the validity of a custom, I implicitly admit that the custom is equally binding for me and for you and for all the other members of the society. This involves disinterestedness; I admit that a breach of the custom is equally wrong whether I myself am immediately concerned in the act or not. It also involves apparent impartiality; I assume that my condemnation of the act is independent of the relationship in which the parties concerned in it stand to me personally, or, at least, I am not aware that my condemnation is influenced by any 121such relationship. And this holds good whatever be the origin of the custom. Though customs are very frequently rooted in public sympathetic resentment or in public disinterested aversions, they may have a selfish and partial origin as well. At first the leading men of the society may have prohibited certain acts because they found them disadvantageous to themselves, or to those with whom they particularly sympathised. Where custom is an oppressor of women, this oppression may certainly be traced back to the selfishness of men. Where custom sanctions slavery, it is certainly not impartial to the slaves. Yet in the one case as in the other, I assume custom to be in the right, irrespectively of my own station, and I even expect the women and slaves themselves to be of the same opinion. Such an expectation is by no means a chimera. Under normal social conditions, largely owing to men’s tendency to share sympathetically the resentment of their superiors, the customs of a society are willingly submitted to, and recognised as right, by the large majority of its members, whatever may be their station. Among the Rejangs of Sumatra, says Marsden, “a man without property, family, or connections, never, in the partiality of self-love, considers his own life as being of equal value with that of a man of substance.”33 However selfish, however partial a certain rule may be, it becomes a true custom, a moral rule, as soon as the selfishness or the partiality of its makers is lost sight of.

31 Grey, Journals of Expeditions in North-West and Western Australia, ii. 217.

32 Tylor, ‘Primitive Society,’ in Contemporary Review, xxi. 706. Idem, Anthropology, p. 408 sq. Avebury, Origin of Civilisation, p. 466 sqq. Eyre, Journals of Expeditions into Central Australia, ii. 384, 385, 388. Curr, The Australian Race, i. 51. Mathew, ‘Australian Aborigines,’ in Jour. and Proceed. Roy. Soc. N.S. Wales, xxiii. 398. Idem, Eaglehawk and Crow, p. 93. Taplin, ‘Narrinyeri,’ in Woods, Native Tribes of South Australia, pp. 35, 136 sq. Hawtrey, ‘Lengua Indians of the Paraguayan Chaco,’ in Jour. Anthr. Inst. xxxi. 292. Murdoch, ‘Ethnological Results of the Point Barrow Expedition,’ in Ann. Rep. Bur. Ethn. ix. 427 sq. (Point Barrow Eskimo). Holm, ‘Ethnologisk Skizze af Angmagsalikerne,’ in Meddelelser om Grönland, x. 85. Nansen, First Crossing of Greenland, ii. 295. Johnston, British Central Africa, p. 452. New, Life, Wanderings, and Labours in Eastern Africa, p. 110 (Wanika). Scott Robertson, Káfirs of the Hindu-Kush, p. 183 sq.

33 Marsden, History of Sumatra, p. 247.

It will perhaps be argued that, by deriving the characteristics of moral indignation from its connection with custom, we implicitly contradict our initial assumption that moral emotions lie at the bottom of all moral judgments. But it is not so. Custom is a moral rule only on account of the indignation called forth by its transgression. In its ethical aspect it is nothing but a generalisation of emotional tendencies, applied to certain modes of conduct, and transmitted from generation to generation. Public indignation lies at the bottom of it. In its capacity 122of a rule of duty, custom, mos, is derived from the emotion to which it gave its name.

As public indignation is the prototype of moral disapproval, so public approval, expressed in public praise, is the prototype of moral approval. Like public indignation, public approval is characterised by a flavour of generality, by disinterestedness, by apparent impartiality. But of these two emotions public indignation, being at the root of custom and leading to the infliction of punishment, is by far the more impressive. Hence it is not surprising that the term “moral” is etymologically connected with mos, which always implies the existence of a social rule the transgression of which evokes public indignation. Only by analogy it has come to be applied to the emotion of approval as well.

Though taking their place in the system of human emotions as public emotions felt by the society at large, moral disapproval and approval have not always remained inseparably connected with the feelings of any special society. The unanimity of opinion which originally characterised the members of the same social unit was disturbed by its advancement in civilisation. Individuals arose who found fault with the moral ideas prevalent in the community to which they belonged, criticising those ideas on the basis of their own individual feelings. Such rebels are certainly no less justified in speaking in the name of morality true and proper, than is society itself. The emotions from which their opposition against public opinion springs may be, in nature, exactly similar to the approval or disapproval felt by the society at large, though they are called forth by different facts or, otherwise, differ from these emotions in degree. They may present the same disinterestedness and apparent impartiality—indeed, dissent from the established moral ideas largely rises from the conviction that the apparent impartiality of public feelings is an illusion. As will be seen, the evolution of the moral consciousness involves a progress in impartiality and justice; it tends towards an equalisation 123of rights, towards an expansion of the circle within which the same moral rules are held applicable; and this process is in no small degree effected by the efforts made by high-minded individuals to raise public opinion to their own standard of right. Nay, as we have already noticed, individual moral feelings do not even lack that flavour of generality which characterises the resentment and approval felt unanimously by a body of men. Though, perhaps, persecuted by his own people as an outcast, the moral dissenter does not regard himself as the advocate of a mere private opinion.34 Even when standing alone, he feels that his conviction is shared at least by an ideal society, by all those who see the matter as clearly as he does himself, and who are animated with equally wide sympathies, an equally broad sense of justice. Thus the moral emotions remain to the last public emotions—if not in reality, then as an ideal.

34 Cf. Pollock, Essays in Jurisprudence and Ethics, p. 309.

The fact that the earliest moral emotions were public emotions implies that the original form of the moral consciousness cannot, as is often asserted, have been the individual’s own conscience. Dr. Martineau’s observation, that the inner springs of other men’s actions may be read off only by inference from our own experience, by no means warrants his conclusion that the moral consciousness is at its origin engaged in self-estimation, instead of circuitously reaching this end through a prior critique upon our fellow-men.35 The moral element which may be contained in the emotion of self-reproach or self-approval, is generally to such an extent mixed up with other and non-moral elements, that it can be disentangled only by a careful process of abstraction, guided by the feelings of other people with reference to our conduct or by our own feelings with reference to the conduct of others. The moral emotion of remorse presupposes some notion of right and wrong, and the application of this notion to one’s own conduct. Hence it could never have 124been distinguished as a special form of, or element in, the wider emotion of self-reproach, unless the idea of morality had been previously derived from another source. The similarity between regret and remorse is so close, that in certain European languages there is only one word for both.36

35 Martineau, Types of Ethical Theory, ii. 29 sqq.

36 As, in Swedish, the word ånger.

 

From what has been said above it is obvious that moral resentment is of extreme antiquity in the human race, nay, that the germ of it is found even in the lower animal world, among social animals capable of feeling sympathetic resentment. The origin of custom as a moral rule no doubt lies in a very remote period of human history. We have no knowledge of a savage people without customs, and, as will be seen subsequently, savages often express their indignation in a very unmistakable manner when their customs are transgressed. Various data prove that the lower races have some feeling of justice, the flower of all moral feelings. And the supposition that remorse is unknown among them,37 is not only unfounded, but contradicted by facts. Indeed, genuine remorse is so hidden an emotion even among ourselves, that it cannot be expected to be very conspicuous among savages. As we have seen, it requires a certain power of abstraction, as well as great impartiality of feeling, and must therefore be sought for at the highest reaches of the moral consciousness rather than at its lowest degrees. But to suppose that savages are entirely without a conscience is quite contrary to what we may infer from the great regard in which they hold their customs, as also contrary to the direct statements of travellers who have taken some pains to examine the matter. The answer given by the young Australian when asked by Mr. Howitt whether he might not eat a female opossum if the old men were not present,38 certainly indicates conscientious respect for a moral rule, and is, as Mr. Fison observes, “a striking instance of that ‘moral 125feeling’ which Sir John Lubbock denies to savages.”39 Dr. Hübbe-Schleiden asserts that, among the people whom he had in his service, he found the Negroes, in their sense of duty, not inferior, but rather superior to the Europeans.40 Mr. New says of the Wanika:—“Conscience lives in them as the vicegerent of Almighty God, and is ever excusing or else accusing them. It may be blunted, hardened, resisted, and largely suppressed, but there it is.”41 M. Arbousset once desired some Bechuanas to tell him whether the blacks had a conscience. “Yes, all have one,” they said in reply. “And what does it say to them?” “It is quiet when they do well and torments them when they sin.” “What do you call sin?” “The theft, which is committed trembling, and the murder from which a man purifies and re-purifies himself, but which always leaves remorse.”42 Mr. Washington Matthews refers to a passage in a Navaho story which “shows us that he who composed this tale knew what the pangs of remorse might be, even for an act not criminal, as we consider it, but merely ungenerous and unfilial.”43

37 Avebury, Origin of Civilisation, pp. 421, 426.

38 See supra, p. 118.

39 Fison and Howitt, op. cit. p. 257 n.

40 Hübbe-Schleiden, Ethiopien, p. 184 sq.

41 New, op. cit. p. 96.

42 Arbousset and Daumas, Exploratory Tour to the North-East of the Colony of the Cape of Good Hope, p. 322.

43 Matthews, ‘Study of Ethics among the Lower Races,’ in Journal of American Folk-Lore, xii. 7.

A different opinion as to the existence of moral feelings among savages has been expressed by Lord Avebury. To him even modern savages seem to be “almost entirely wanting in moral feeling”; and he says that he has “been forced to this conclusion, not only by the direct statements of travelers but by the general tenor of their remarks, and especially by the remarkable absence of repentance and remorse among the lower races of men.”44 The importance of the subject renders 126it necessary to scrutinise the facts which Lord Avebury has adduced in support of his conclusion.

44 Avebury, op. cit. pp. 414, 426. Lord Avebury quotes Burton’s statement that in Eastern Africa, as also among the Yoruba negroes, conscience does not exist, and that “repentance” expresses regret for missed opportunities of mortal crime. Speaking of the stage of savagery represented by the Bakaïri, Dr. von den Steinen likewise observes (Unter den Naturvölkern Zentral-Brasiliens, p. 351), “Goodness and badness exist only in the crude sense of doing to others what is agreeable or disagreeable, but the moral consciousness, and the ideal initiative, influenced neither by prospect of reward nor fear of punishment, are entirely lacking.” Lippert maintains (Kulturgeschichte der Menschheit, i. 27) “dass sich das Gewissen beim Naturmenschen nicht als ‘Selbsttadel,’ sondern nur als Furcht zeigt.”

Mr. Neighbors states that, among the Comanches of Texas, “no individual action is considered a crime, but every man acts for himself according to his own judgment, unless some superior power—for instance, that of a popular chief—should exercise authority over him.” Another writer says, “The Redskin has no moral sense whatever.” Among the Basutos, according to Casalis, morality “depends so entirely upon social order that all political disorganisation is immediately followed by a state of degeneracy, which the re-establishment of order alone can rectify.” Similar accounts are given as regards Central Africa and some other places. Thus at Jenna, and in the surrounding districts, “whenever a town is deprived of its chief, the inhabitants acknowledge no law—anarchy, troubles, and confusion immediately prevail, and till a successor is appointed all labour is at an end.” The Damaras “seem to have no perceptible notion of right or wrong.” The Tasmanians were “without any moral views and impressions.” Eyre says of the Australians that they have “no moral sense of what is just and equitable in the abstract”; and a missionary had very great difficulty in conveying to those natives any idea of sin. The Kacharis had “in their own language no words for sin, for piety, for prayer, for repentance”; and of another of the aboriginal tribes of India Mr. Campbell remarks that they “are … said to be without moral sense.” Lord Avebury in this connection even quotes a statement to the effect that the expressions which the Tonga Islanders have for ideas like vice and injustice “are equally applicable to other things.” The South American Indians of the Gran Chaco are said by the missionaries to “make no distinction between right and wrong, and have therefore neither fear nor hope of any present or future punishment or reward, nor any mysterious terror of some supernatural power.” Finally, Lord Avebury observes that religion, except in the more advanced races, has no moral aspect or influence, that the deities are almost invariably regarded as evil, and that the belief in a future state is not at first associated with reward or punishment.45

45 Avebury, op. cit. p. 417 sqq.

Many of the facts referred to by Lord Avebury do not at all presuppose the absence of moral feelings. It is difficult to see why the malevolence of gods should prevent men from having notions of right and wrong, and we know from the Old Testament itself that there may be a moral law without Paradise127 and Hell. The statement concerning the Comanches only implies that, among them, individual freedom is great; whilst the social disorder which prevails among various peoples at times of political disorganisation indicates that the cohesiveness of the political aggregate is weak, as well as a certain discrepancy between moral ideas and moral practice. In Morocco, also, the death of a Sultan is immediately followed by almost perfect anarchy, and yet the people recognise both the moral tenets of the Koran and the still more stringent tenets of their ancient customs. As to the Basutos, Casalis expressly states that they have the idea of moral evil, and represent it in their language by words which mean ugliness, or damage, or debt, or incapacity;46 and M. Arbousset once heard a Basuto say, on an unjust judgment being pronounced, “The judge is powerful, therefore we must be silent; if he were weak, we should all cry out about his injustice.”47 Moreover, a people may be unconscious of what is just “in the abstract,” and of moral “notions,” in the strict sense of the term, and at the same time, in concrete cases, distinguish between right and wrong, just and unjust. Of the Western Australians, Mr. Chauncy expressly says that they have a keen sense of justice, and mentions an instance of it;48 whilst our latest authorities on the Central Australians observe that, though their moral code differs radically from ours, “it cannot be denied that their conduct is governed by it, and that any known breaches are dealt with both surely and severely.”49 As regards the Tonga Islanders, Mariner states that “their ideas of honour and justice do not very much differ from ours except in degree, they considering some things more honourable than we should, and others much less so”; and in another place he says that “the notions of the Tonga people, in respect to honour and justice … are tolerably well defined, steady and universal,” though not always acted upon.50 The statement that the American Indians have “no moral sense whatever,” sounds very strange when compared with what is known about their social and moral life; Buchanan, for instance, asserts that they “have a strong innate sense of justice.”51 Of course, there may be diversity of opinion as to what constitutes the “moral sense”; if the conception of sin or other theological notions are regarded as essential to it, it is probably 128wanting in a large portion of mankind, and not only in the least civilised. When missionaries or travellers deny to certain savages moral feelings and ideas, they seem chiefly to mean feelings or ideas similar to their own.

46 Casalis, Basutos, p. 304.

47 Arbousset and Daumas, op. cit. p. 389.

48 Brough Smyth, Aborigines of Victoria, ii. 228.

49 Spencer and Gillen, Native Tribes of Central Australia, p. 46.

50 Mariner, Natives of the Tonga Islands, ii. 159, 163.

51 Buchanan, Sketches of the History, &c., of the North American Indians, p. 158.

Of many savage and barbarous peoples it is directly affirmed that they have a sense of justice. Mr. Man says concerning the Andaman Islanders, “Certain traits which have been noticeable in their dealings with us would give colour to the belief that they are not altogether lacking in the sense of honour, and have some faint idea of the meaning of justice.”52 Colonel Dalton states that, among the Korwás on the highlands of Sirgúja, when several persons are implicated in one offence, he has found them “most anxious that to each should be ascribed his fair share of it, and no more, the oldest of the party invariably taking on himself the chief responsibility as leader or instigator, and doing his utmost to exculpate as unaccountable agents the young members of the gang.”53 The Aleuts, according to Veniaminof, are “naturally inclined to be just,” and feel deeply undeserved injuries.54 Kolben, who is nowadays recognised as a good authority,55 wrote of the Hottentots, “The strictness and celerity of the Hottentot justice are things in which they outshine all Christendom.”56 Missionaries have wondered that, among the Zulus, “in the absence for ages of all revealed truth and all proper religious instruction, there should still remain so much of mental integrity, so much ability to discern truth and justice, and withal so much regard for these principles in their daily intercourse with one another.”57 Zöller ascribes to the Negro a well-developed feeling of justice. “No European,” he says, “at least no European child, could discriminate so keenly between just and unjust punishment.”58 Mr. Hinde observes:— “One of the most marked characteristics of black people is their keen perception of justice. They do not resent merited punishment where it is coupled with justice upon other matters. The Masai have their sense of justice particularly strongly developed.”59 Dieffenbach writes of the Maoris, “There is a high natural sense of justice amongst them; 129and it is from us that they have learnt that many forbidden things can be done with impunity, if they can only be kept secret.”60 Justice is a virtue which always commands respect among the Bedouins, and “injustice on the part of those in power is almost impossible. Public opinion at once asserts itself; and the Sheykh, who should attempt to override the law, would speedily find himself deserted.”61

52 Man, in Jour. Anthr. Inst. xii. 92.

53 Dalton, Descriptive Ethnology of Bengal, p. 230.

54 Veniaminof, quoted by Dall, Alaska, p. 398.

55 Theophilus Hahn remarks (The Supreme Being of the Khoi-Khoi, p. 40) that Kolben’s reports have been doubted by European writers without any good reason.

56 Kolben, Present State of the Cape of Good Hope, i. 301. Cf. ibid. i. 339.

57 Quoted by Tyler, Forty Years among the Zulus, p. 197.

58 Zöller, Kamerun, ii. 92. Cf. Idem, Das Togoland, p. 37.

59 Hinde, The Last of the Masai, p. 34. Cf. Foreman, Philippine Islands, p. 185.

60 Dieffenbach, Travels in New Zealand, ii. 106.

61 Blunt, Bedouin Tribes of the Euphrates, ii. 224 sqq.

Much less conspicuous than the emotion of public resentment is the emotion of public approval. These public emotions are largely of a sympathetic character, and, whilst a tendency to sympathetic resentment is always involved in the sentiment of social affection, a tendency to sympathetic retributive kindly emotion is not. Among the lower animals this latter emotion seems hardly to occur at all, and in men it is often deplorably defective. Resentment towards an enemy is itself, as a rule, a much stronger emotion than retributive kindly emotion towards a friend. And, as for the sympathetic forms of these emotions, it is not surprising that the altruistic sentiment is more readily moved by the sight of pain than by the sight of pleasure,62 considering that its fundamental object is to be a means of protection for the species. Moreover, sympathetic retributive kindliness has powerful rivals in the feelings of jealousy and envy, which tend to make the individual hostile both towards him who is the object of a benefit and towards him who bestows it. As an ancient writer observes, “many suffer with their friends when the friends are in distress, but are envious of them when they prosper.”63 But though these circumstances are a hindrance to the rise of retributive kindly emotions of a sympathetic kind, they do not prevent public approval in a case when the whole society profits by a benefit, nor have they any bearing on those disinterested instinctive likings of which I have spoken above. I think, then, we may 130safely conclude that public praise and moral approval occurred, to some degree, even in the infancy of human society. It will appear from numerous facts recorded in following chapters, that the moral consciousness of modern savages contains not only condemnation, but praise.

62 Cf. Jodl, Lehrbuch der Psychologie, p. 686.

63 Schmidt, Ethik der alten Griechen, i. 259.

 

 

 

 

CHAPTER VI

 

ANALYSIS OF THE PRINCIPAL MORAL CONCEPTS

WE have assumed that the moral concepts are essentially generalisations of tendencies in certain phenomena to call forth moral emotions. We have further assumed that there are two kinds of moral emotions: indignation and approval. If these assumptions hold good, either indignation or approval must be at the bottom of every moral concept. That such is really the case will, I think, become evident from the present chapter, in which the principal of those concepts will be analysed.

Our analysis will be concerned with moral concepts formed by the civilised mind. Whilst the most representative of English terms for moral estimates have equivalents in the other European languages, I do not take upon myself to decide to what extent they have equivalents in non-European tongues. That all existing peoples, even the very lowest, have moral emotions is as certain as that they have customs, and there can be no doubt that they give expression to those emotions in their speech. But it is another question how far their emotions have led to such generalisations as are implied in moral concepts. Concerning the Fuegians M. Hyades observes, “Les idées abstraites sont chez eux à peu près nulles. Il est difficile de définir exactement ce qu’ils appellent un homme bon et un homme méchant; mais à coup sûr ils n’ont pas la notion de ce qui est bon ou mauvais, abstraction faite de l’individu ou de l’objet auquel ils appliqueraient l’un ou l’autre 132de ces attributs.”1 The language of the Californian Karok, though rich in its vocabulary, is said to possess no equivalent for “virtue.”2 In the aboriginal tongues of the highlanders of Central India “there seem to be no expressions for abstract ideas, the few such which they possess being derived from the Hindí….. The nomenclature of religious ceremony, of moral qualities, and of nearly all the arts of life they possess, are all Hindí.”3 On a strict examination of the language of the Tonga Islanders, Mariner could discover “no words essentially expressive of some of the higher qualities of human merit, as virtue, justice, humanity; nor of the contrary, as vice, injustice, cruelty, &c. They have indeed expressions for these ideas,” he adds, but these expressions “are equally applicable to other things. To express a virtuous or good man, they would say, tangata lillé, a good man, or tangata loto lillé, a man with a good mind; but the word lillé, good (unlike our word virtuous), is equally applicable to an axe, canoe, or anything else.”4 Of the Australian natives about Botany Bay and Port Jackson Collins wrote, “That they have ideas of a distinction between good and bad is evident from their having terms in their language significant of these qualities.” A fish of which they never ate, was wee-re, or bad, whereas the kangaroo was bood-yer-re, or good; and these expressions were used not only for qualities which they perceived by their senses, but for all kinds of badness and goodness, and were the only terms they had for wrong and right. “Their enemies were wee-re; their friends bood-yer-re. On our speaking of cannibalism, they expressed great horror at the mention, and said it was wee-re. On seeing any of our people punished or reproved for ill-treating them, they expressed their approbation, and said it was bood-yer-re, it was right.”5

1 Hyades and Deniker, Mission scientifique du Cap Horn, vii. 251.

2 Powers, Tribes of California, p. 22.

3 Forsyth, Highlands of Central India, p. 139.

4 Mariner, Natives of the Tonga Islands, ii. 147 sq.

5 Collins, English Colony in New South Wales, i. 548 sq.

133Considering, moreover, that even the European languages make use of such general terms as “good” and “bad” for the purpose of expressing moral qualities, it seems likely that, originally, moral concepts were not clearly differentiated from other more comprehensive generalisations, and that they assumed a more definite shape only by slow degrees. At the same time we must not expect to find the beginning of this process reflected in the vocabularies of languages. There is every reason to believe that a savage practically distinguishes between the “badness” of a man and the “badness” of a piece of food, although he may form no clear idea of the distinction. As Professor Wundt observes, “the phenomena of language do not admit of direct translation back again into ethical processes: the ideas themselves are different from their vehicles of expression, and here as everywhere the external mark is later than the internal act for which it stands.”6 Language is a rough generaliser; even superficial resemblance between different phenomena often suffices to establish linguistic identity between them. Compare the rightness of a line with the rightness of conduct, the wrongness of an opinion with the wrongness of an act. And notice the different significations given to the verb “ought” in the following sentences:—“They ought to be in town by this time, as the train left Paris last night”; “If you wish to be healthy you ought to rise early”; “You ought always to speak the truth.” Though it may be shown that in these statements the predicate “ought” signifies something which they all have in common—the reference to a rule,7—we must by no means assume that this constitutes the essence of the moral “ought,” or gives us the clue to its origin.

6 Wundt, Ethik, p. 36 (English translation, p. 44).

7 Cf. Stephen, Liberty, Equality, Fraternity, p. 343 sq.

Discarding all questions of etymology as irrelevant to our subject,8 we shall, in our analysis of moral concepts, 134endeavour to fix the true import of each concept by examining how, and under what circumstances, the term expressing it is generally applied. We shall restrict ourselves to the principal, typical terms which are used as predicates in moral judgments. If we succeed in proving that they are all fundamentally derived from either moral indignation or moral approval, there can be no reasonable doubt as to the origin of the rest.

8 The attempt to apply the philological method to an examination of moral concepts has, in my opinion, proved a failure—which may be seen from Mr. Baynes’ book on The Idea of God and the Moral Sense in the Light of Language.

The tendency in a phenomenon to arouse moral indignation is directly expressed by the term bad, and a disposition of mind which is characterised by some special kind of badness is called vice. Closely allied to the term “bad” is the term wrong. But there is a difference in the use of these words. Whilst “bad” may be applied both to a person’s character and to his conduct, only his conduct may be said to be “wrong.” The reason for this is that the concept of moral wrongness is modelled on the idea of a moral law, the breach of which is regarded as "wrong.” And, by laying down a moral law, we only enjoin a certain mode of conduct; we do not command a person to have a certain character.

The moral law is expressed by the term ought, a term which, in modern ethics, generally occupies a central position among moral predicates. The notion which it embodies is frequently looked upon as ultimate and incapable of analysis—“too elementary” (to quote Professor Sidgwick) “to admit of any formal definition.”9 This view, I think, instead of simplifying the matter, has been one of the chief causes of the prevailing confusion in ethical thought.

9 Sidgwick, Methods of Ethics, p. 33.

Far from being a simple notion, “ought” appears to me clearly decomposable, even though it have a special flavour of its own. First of all, it expresses a conation. When I feel that I ought to do a thing, I experience an impulse to do it, even though some opposite impulse may finally determine my action. And when I say to another man, “You ought to do this, or that,” there is certainly implied 135a purpose to influence his action in a certain direction. In the notion of duty, the ethical import of which is identical with that of “ought,” this conative element is not so obvious.

Closely connected with the conative nature of “ought” is the imperative character it is apt to assume. But, though frequently used imperatively, “ought” is not necessarily and essentially imperative. Even if the “ought” which I address to myself, in a figurative sense, may be styled a command, it is hardly appropriate to speak of a present command with reference to past actions. The common phrase, “You ought to have done this, or that,” cannot be called a command.

The conation expressed in “ought” is determined by the idea that the mode of conduct which ought to be performed is not, or will possibly not be, performed. It is also this idea of its not being performed that determines the emotion which gives to “ought” the character of a moral predicate. The doing of what ought not to be done, or the omission of what ought not to be omitted, is apt to call forth moral indignation—this is the most essential fact involved in the notion of “ought.” Every “ought”-judgment contains implicitly a negation. Nobody would ever have dreamt of laying down a moral rule if the idea of its transgression had not presented itself to his mind. We may reverse the words of the Apostle,10 and say that where no transgression is, there is no law. When Solon was asked why he had specified no punishment for one who had murdered a father, he replied that he supposed it could not occur to any man to commit such a crime.11 Similarly, the modern Shintoist concludes that the primæval Japanese were pure and holy from the fact that they are represented as a people who had no moral commandments.12 It is this prohibitive character of “ought” that has imparted to duty that idea of antagonism to inclination which has found its most famous expression 136in the Kantian ethics, and which made Bentham look upon the word itself as having in it “something disagreeable and repulsive.”13 It is the intrinsic connection between “ought” and “wrong” that has given to duty the most prominent place in ethical speculation whenever moral pessimism has been predominant. Whilst the ancient Greeks, with whom happiness was the state of nature, never spoke of duty, but held virtue to be the Supreme Good, Christianity, on the other hand, which looked upon man as a being born and bred in sin, regarded morals pre-eminently as the science of duty. Then, again, in modern times, Kant’s categorical imperative came as a reaction against that moral optimism which once more had given the preference to virtue, considering everything in the world or in humanity as beautiful and good from the very beginning.14 It is also worth noting that the feeling of self-complacency connected with the consciousness of having acted in accordance with the law of duty, has no distinctively expressive name in ordinary language, while the opposite feeling is known by so familiar and distinctive a term as “remorse.” This is not, as has been said,15 “a significant indication of the moral condition of mankind,” but a significant indication of the true import of the notion of duty itself.

10 Romans, iv. 15.

11 Diogenes Laërtius, Solon, 10. Cicero, Pro S. Roscio Amerino, 25.

12 Griffis, Religions of Japan, p. 72.

13 Bentham, Deontoiogy, i. 10.

14 Ziegler, Social Ethics, pp. 22, 75 sq.

15 Murray, Introduction to Ethics, p. 108.

It is not, then, in the emotion of approval that we must seek for the origin of this concept. We may undoubtedly applaud him who is faithful to his duty, but the idea of duty involves no applause. There is no contradiction in the omission of an act being disapproved of and the performance of it being praised. “Ought” and “duty” express only the tendency of an omission to call forth disapproval, and say nothing about the consequences of the act’s performance. The conscientious man refuses the homage paid to him, by saying, “I have only done my duty.” Duty is a “stern 137lawgiver,” who threatens with punishment, but promises no reward.16

16 The intrinsic connection between duty and disapproval has previously been noticed by Stuart Mill (in a note to James Mill’s Analysis of the Human Mind, ii. 325), according to whom “no case can be pointed out in which we consider anything as a duty, and any act or omission as immoral or wrong, without regarding the person who commits the wrong and violates the duty as a fit object of punishment.” Cf. also Bain, Emotions and the Will, ch. 15, and Gizycki, Introduction to the Study of Ethics, English adaptation by Stanton Coit, p. 102 sq.

The ideas of “ought” and “duty” thus spring from the same source as the ideas of “bad” and “wrong.” To say that a man ought to do a thing is, so far as the morality of his action is concerned, the very same thing as to say that it is bad, or wrong, of him not to do it—in other words, that the not-doing of it has a tendency to call forth moral disapproval.

"Wrong” is popularly regarded as the opposite of right, and they are really contradictories, but only within the sphere of positive moral valuation. We do not call the actions of irresponsible beings, like animals or infants, “right,” although they are not wrong; nor do we pronounce morally indifferent actions of responsible beings to be “right,” unless we wish thereby especially to mark their moral value as not being wrong. An act which is permissible is of course not wrong, and so far it may be said to be right; but it would be more accurate to say that people have a right to do it. The adjective “right,” in its strict sense, refers to cases from which the indifferent is excluded. A right action is, on a given occasion, the right action, and other alternatives are wrong. “Right” is thus closely related to “ought,” but at the same time "right” and “obligatory” are not identical. I cannot quite subscribe to the view of Professor Sidgwick, that “in the recognition of conduct as ‘right’ is involved an authoritative prescription to do it.”17 What is right is in accordance with the moral law; the adjective “right” means that duty is fulfilled. It is true that the super-obligatory also is right. But “right” takes no notice of the super-obligatory as distinct from the obligatory, and what goes 138beyond duty always involves the fulfilment of some duty. It may be admitted to be “not only right,” but not to be more right. Right has no comparative. A duty is either fulfilled or not, and unless it be perfectly fulfilled the conduct is wrong. There are degrees of wrongness and of goodness, as the moral indignation and the moral approval may be stronger or weaker, but there are no degrees of rightness.

17 Sidgwick, op. cit. p. 106.

The fact that the right action is a duty fulfilled accounts for the erroneous opinion so generally held by ethical writers that “right” is intrinsically connected with moral approval.18 The choice of the right alternative may give us satisfaction and call forth in us an emotion of approval. This emotion may be the motive for our pointing out the rightness of the act, and the judgment in which we do so may even intrinsically contain applause. The manner in which the judgment “That is right,” is pronounced, often shows that it is meant to be an expression of praise. But this does not imply that the concept “right” by itself has reference to moral approval and involves praise. It only means that in one word is expressed a certain concept—the concept that a duty is fulfilled—plus an emotion of approval. That “right” per se involves no praise is obvious from the fact that we regard it as perfectly right to pay a debt and to keep a promise, or to abstain from killing, robbing, or lying, although such acts or omissions generally have no tendency whatever to evoke in us an emotion of moral approval.

18 Hutcheson, Essay on the Nature and Conduct of the Passions and Affections, with Illustrations on the Moral Sense, p. 279. Clifford, Lectures and Essays, pp. 294, 304 sq. Fowler and Wilson, Principles of Morals, ii. 199. Alexander, Moral Order and Progress, p. 399.

The concept of “right,” then, as implying that the opposite mode of conduct would have been wrong, ultimately derives its moral significance from moral disapproval. This may seem strange considering that “right” is commonly looked upon as positive and “wrong” as its negation. But we must remember that language and popular conceptions in these matters start 139from the notion of a moral rule or command. It is a matter of paramount importance that such modes of conduct as are apt to arouse moral indignation should be avoided. People try to prevent them by prohibitions and injunctions, often emphasised by threats of penalties for the transgressors. The whole moral and social discipline is based upon commands; customs are rules of conduct, and so are laws. It is natural, then, that the notion of a command should figure uppermost in popular conceptions of morality. Obedience to the command is right, a breach of it is wrong. But the fact which gives birth to the command itself is the indignation called forth by the act which the command forbids, or by the omission of that which it enjoins.

I have spoken here of “right” as an adjective. Used as a substantive, to denote a right, it also, in whatever sense it be used, expresses a concept which is rooted in the emotion of moral disapproval. To have a right to do a thing is to be allowed to do it, either by positive law, in the case of a legal right, or by the moral law, in the case of a moral right; in other words, to have a moral right to do a thing means that it is not wrong to do it. But generally the concept of “a right” means something more than this. From the fact that an act is allowable, that it is not wrong, it follows, as a rule, that it ought not to be prevented, that no hindrance ought to be put in the way of its performance; and this character of inviolability is largely included in the very concepts of rights. That a man has a right to live does not merely mean that he commits no wrong by supporting his life, but it chiefly means that it would be wrong of other people to prevent him from living, that it is their duty not to kill him, or even, as the case may be, that it is their duty to help him to live. And in order to constitute a right in him, the duty in question must be a duty to him. That a right belonging to A is not merely a duty incumbent on B, but a duty to A incumbent on B, will become evident from an example. To kill another 140person’s slave may be condemned as an injury done to the slave himself, in which case it is a duty to the slave not to kill him; or to kill another person’s slave may be condemned on account of the loss it causes to the master, in which case it is deemed a duty to the master not to kill the slave. In the latter case we can hardly say that the duty of not killing the slave constitutes a right to live in the slave—it only constitutes a right in the master to retain his slave alive, not to be deprived of him by an act causing his death.

So commonly does the conception of a right belonging to a person contain the idea of a duty which other persons owe him, that it seems necessary to point out the existence of rights in which no such idea is involved. A man’s right to defend his country, for instance, does not intrinsically imply that it is wrong of the enemy to disable him from doing so. But, on the other hand, there are rights which are nothing else than duties towards those who have the rights. A right is not always a person’s right to a certain activity, or to abstaining from a certain activity; it may have exclusive reference to other people’s acts or omissions. That a man has the right to be rewarded by his country only means that his country is under an obligation to reward him. That a father has a right to be obeyed by his children only means that it is a duty incumbent on his children to obey him. That a person has the right of bodily integrity only means that it is wrong to inflict on him a bodily injury. These rights may, no doubt, if violated, give rise to certain rights of activity: a man may have a right to claim the reward which is due to him, a father to exact from his children the obedience which they owe him, a person who is wronged to defend himself. But the rights of claiming a reward, of exacting obedience, of resisting wrong, are certainly not identical with the rights of being rewarded, of being obeyed, of not being wronged.

It is commonly said that rights have their corresponding duties. But if this expression is to be used, it must be 141remembered that the duty which “corresponds” to a right, as a matter of fact, is either included in that right or simply identical with it. The identity between the right and the duty, then, consists in this, that the notion of a right belonging to a person is identical with the notion of a duty towards him. Rights and duties are not identical in the sense that it is always a duty to insist on a right, though this has been urged.19 If anybody prevents me from making use of my right it may no doubt be deemed a duty on my part not to tolerate the wrong committed against me, but nothing of the kind is involved in the concept of a right. And the same may be said with reference to the assertion that a right to do a thing is always, at the same time, a duty to do it—an assertion which is a consequence of the doctrine that there is nothing morally indifferent and nothing that goes beyond duty; in other words, that all conduct of responsible beings is either wrong or obligatory. Even if this doctrine were psychologically correct—which it is not—even if there were a constant coincidence between the acts which a person has a right to perform and acts which it is his duty to perform, that would not constitute identity between the concepts of rights and duties. According to the meaning of a right, A’s right may be B’s duty towards A, but A’s right cannot be A’s duty towards B or anybody else.

19 Alexander, op. cit. p. 146 sq.

Closely connected with the notions of wrongness and rightness are the notions of injustice and justice. Injustice, indeed, is a kind of wrongness. To be unjust is always to be unjust to somebody, and this implies a doing of wrong to somebody, a violation of somebody’s right. “Justice,” again, is a kind of rightness. It involves the notion that a duty to somebody, a duty corresponding to a right, is fulfilled;20 we say that justice “demands” that it should be fulfilled. As an act is “right” if its omission 142is wrong, so an act is “just,” in the strict sense of the word, if its omission is unjust. But, like the adjective “right,” the adjective “just” is also sometimes used in a wider sense, to denote that something is “not unjust.” As non-obligatory acts that are “not wrong” can hardly be denied to be “right,” so non-obligatory acts that are “not unjust” can hardly be denied to be “just,” although they are not demanded by justice.

20 According to the Institutiones of Justinian (i. 1. 1) “justice is the constant and perpetual will to render to each one his right,”—“justitia est constans et perpetua voluntas jus suum cuique tribuens.”

At the same time, “injustice” and “justice” are not simply other names for violating or respecting rights. Whenever we style an act “unjust,” we emphasise that it involves partiality. We do not denominate murder and robbery unjust, but wrong or criminal, because the partiality involved in their commission is quite obscured by their general wrongness or criminality; but we at once admit their gross injustice when we consider that the murderer and robber indulged their own inclinations with utter disregard of their neighbours’ rights. And we look upon “unjust” as an exceedingly appropriate term for a judge who condemns an innocent man with the intention to save the culprit, and for an employer who keeps for himself a profit which he ought to share with his employees. Again, when we style an act “just,” in the strict sense of the term, we point out that an undue preference would have been shown to somebody by its omission. It is true that, as Adam Smith observes, “we may often fulfil all the rules of justice by sitting still and doing nothing,”21 and that the man who barely abstains from violating either the person or the estate or the reputation of his neighbours so far does justice to them; but in such a case we hardly apply the epithet “just,” simply because there is no reason for emphasising the partiality involved in the opposite mode of conduct. On the other hand, we say it is just, or, more emphatically, that justice demands, that the innocent should not suffer in the place of the guilty, or that the employer should give his employees all their dues.

21 Adam Smith, Theory of Moral Sentiments, p. 117.

It is necessary to note that the impartiality which justice 143demands is impartiality within the recognised order of rights, whether these rights themselves have a partial origin or not. A father is unjust if he gives away property to one of his children in preference to others, in case all of them are recognised to have a right to an equal share in his property, even though it be only a conditional right; and a man is unjust if he keeps for himself a profit to which another man has an equal right. But in a society which regards slavery as a morally permissible institution, a man is not necessarily deemed unjust if he beats a slave in a case where it would have been wrong to beat a freeman. However, in the case of unequal rights, justice admits of no greater difference of treatment than what the difference in rights implies. It may be just to punish a man who by a crime has forfeited that right to be protected from wilfully inflicted pain which every law-abiding citizen possesses, but it is unjust to extend the inequality between his condition and the condition of others beyond the inequality of their rights by inflicting upon him a punishment which is unduly severe.

It is the emphasis laid on the duty of impartiality that gives justice a special prominence in connection with punishments and rewards. A man’s rights depend to a great extent upon his actions. Other things being equal, the criminal has not the same rights to inviolability as regards reputation, or freedom, or property, or life, as the innocent man; the miser and egoist have not the same rights as the benefactor and the philanthropist. On these differences in rights due to differences in conduct, the terms “just” and “unjust” lay stress; for in such cases an injustice would have been committed if the rights had been equal. When we say of a criminal that he has been “justly” imprisoned we point out that he was no victim of undue partiality, as he had forfeited the general right to freedom on account of his crime. When we say of a benefactor that he has been “justly” rewarded, we point out that no favour was partially bestowed upon him in preference to others, as he had acquired the special right of being rewarded. But the 144“justice” of a punishment or a reward, strictly speaking, involves something more than this; as we have seen, what is strictly “just” is always the discharge of a duty corresponding to a right which would have been in a partial manner disregarded by a transgression of the duty. If it is just that a person should be rewarded, he ought to be rewarded, and to fulfil this duty is to do him justice. Again, if it is just that a person should be punished, he ought to be punished, and his not being punished is an injustice to other persons. It is an injustice towards all those whose condemnation of the wrong act finds its recognised expression in the punishment, inasmuch as their rightful claim that the criminal should be punished, their right of resisting wrong, is thereby violated in favour of the wrong-doer. Moreover, his not being punished is an injustice towards other criminals, who have been punished for similar acts, in so far as they have a right to demand that no undue preference should be shown to anybody whose guilt is equal to theirs. Retributive justice may admit of a certain latitude as to the retribution. It may be a matter of small concern from the community’s point of view whether men are fined or imprisoned for the commission of a certain crime. But it may be a demand of justice that, under equal circumstances, all of them should be punished with the same severity, since the crime has equally affected their rights.

The emphasis which “injustice” lays on the partiality of a certain mode of conduct always involves a condemnation of that partiality. Like every other kind of wrongness, “injustice” is thus a concept which is obviously based on the emotion of moral disapproval. And so is the concept of “justice,” whether it involves the notion that an injustice would be committed if a certain duty were not fulfilled, or it is simply used to denote that a certain mode of conduct is “not unjust.” But there is yet another sense in which the word “just” is applied. It may emphasise the impartiality of an act in a tone of praise. Considering how difficult it is to be perfectly impartial and to give every man his due, especially when one’s own interests are 145concerned, it is only natural that men should be applauded for being just, and consequently that to call a person just should often be to praise him. So, also, “justice” is used as the name for a virtue, “the mistress and queen of all virtues.”22 But all this does not imply that an emotion of moral approval enters into the concept of justice. It only means that one word is used to express a certain concept—a concept which, as we have seen, ultimately derives its import from moral disapproval—plus an emotion of approval. That the concept of justice by itself involves no reference to the emotion of moral approval appears from the fact that it is no praise to say of an act that it is “only just.”

22 Cicero, De officiis, iii. 6.

 

From the concepts springing from moral disapproval we pass to those springing from moral approval. Foremost among these ranks the concept good.23

23 Professor Bain, who takes a very legal view of the moral consciousness, maintains (Emotions and the Will, p. 292) that “positive good deeds and self-sacrifice … transcend the region of morality proper, and occupy a sphere of their own.” A similar opinion has been expressed by Prof. Durkheim (Division du travail social), and, more recently, by Dr. Lagerborg, in his interesting essay, ‘La nature de la morale’ (Revue internationale de Sociologie, xi. 466). Prof. Durkheim argues (p. 30) that it would be “contraire à toute méthode” to include under the same heading acts which are obligatory and acts which are objects of admiration, and at the same time exempt from all regulation. “Si donc, pour rester fidèle à l’usage, on réserve aux premiers la qualification de moraux, on ne saurait la donner également aux seconds.” But I fail to see that ordinary usage recognises regulation as the test of morality. On the contrary, terms like “goodness” and “virtue,” though having no reference whatever to any moral rule, have always hitherto been applied to qualities avowedly moral.

Though “good,” being affixed to a great variety of objects, takes different shades of meaning in different cases, there is one characteristic common to everything called “good.” This is hardly, as Mr. Spencer maintains,24 its quality of being well adapted to a given end. It is true that the good knife is one which will cut, the good gun one which carries far and true. But I fail to see that “good” in a moral sense involves any idea of an adaptation to a given purpose, and, by calling conduct 146“good,” we certainly do not mean that it “conduces to life in each and all.” “Good” simply expresses approval or praise of something on account of some quality which it possesses. A house is praised as “good” because it fulfils the end desired, a wine because it has an agreeable taste, a man on account of his moral worth. “Good,” as a moral epithet, involves a praise which is the outward expression of the emotion of moral approval, and is affixed to a subject of moral valuation on account of its tendency to call forth such an emotion.

24 Spencer, Principles of Ethics, i. 21 sqq.

“Good” has commonly been identified with “right,” but such an identification is incorrect. A father does right in supporting his young children, inasmuch as he, by supporting them, discharges a duty incumbent upon him, but we do not say that he does a good deed by supporting them, or that it is good of him to do so. Nor do we call it good of a man not to kill or rob his neighbours, although his conduct is so far right. The antithesis between right and wrong is, in a certain sense at least, contradictory, the antithesis between good and bad is only contrary. Every act—provided that it falls within the sphere of positive moral valuation—that is not wrong is right, but every act that is not bad is not necessarily good. Just as we may say of a thing that it is “not bad,” and yet refuse to call it “good,” so we may object to calling the simple discharge of a duty “good,” although the opposite mode of conduct would be bad. On the other hand, no confusion of ethical concepts is involved in attributing goodness to the performance of a duty, or, in other words, praising a man for an act the omission of which would have incurred blame. To say of one and the same act that it is right and that it is good, really means that we look upon it from different points of view. Since moral praise expresses a benevolent attitude of mind, it is commendable for a man not to be niggard in his acknowledgment of other people’s right conduct; whereas, self-praise being objectionable, only the other point of view is deemed proper when he passes a 147judgment upon himself. He may say, without incurring censure, “I have done my duty, I have done what is right,” but hardly, “I have done a good deed”; and it would be particularly obnoxious to say, “I am a good man.” The best man even refuses to be called good by others:—“Why callest thou me good? there is none good but one, that is, God.”25

25 St. Matthew, xix. 17.

Whilst “goodness” is the general expression for moral praise, virtue denotes a disposition of mind which is characterised by some special kind of goodness. He who is habitually temperate possesses the virtue of temperance, he who is habitually just the virtue of justice. And even when a man is simply said to be “virtuous,” this epithet is given to him, more or less distinctly, with reference to some branch of goodness which constitutes his virtue. A Supreme Being, to whom is attributed perfect goodness, is not called virtuous, but good.

It was the opinion of Aristotle that virtue is imperfect so long as the agent cannot do the virtuous action without a conflict of impulses. Others maintain, on the contrary, that virtue essentially expresses effort, resistance, and conquest. It has been represented as “mediation through pain”;26 according to Kant, it is “the moral disposition in struggle.”27 But I do not see that virtue presupposes struggle, nor that it is lessened by being exercised with little or no effort. A virtue consists in the disposition to will or not to will acts of a certain kind, and is by no means reduced by the fact that no rival impulses make themselves felt. It is true that by struggle and conquest a man may display more virtue, namely, the virtue of self-restraint in addition to the virtue gained by it. The vigorous and successful contest against temptation constitutes a virtue by itself. For instance, the quality of mind which is exhibited in a habitual and victorious effort to conquer strong sexual passions is a virtue distinguishable from that of chastity. But even this virtue of 148resisting seductive impulses is not greater, ceteris paribus, in proportion as the victory is more difficult. Take two men with equally strong passions and equally exposed to temptations, who earnestly endeavour to lead a chaste life. He who succeeds with less struggle, thanks to his greater power of will, is surely inferior neither in chastity nor in self-restraint. Suppose, again, that the two men were exposed to different degrees of temptation. He who overcomes the greater temptation displays more self-restraint; yet the other man may possess this virtue in an equal degree, and his chastity is certainly not made greater thereby. He may have more merit, but merit is not necessarily proportionate to virtue.

26 Laurie, Ethica, p. 253 sqq.

27 Kant, Kritik der praktischen Vernunft, i. 1. 3 (Sämmtliche Werke, v. 89).

The virtues are broad generalisations of mental dispositions which, on the whole, are regarded as laudable. Owing to their stereotyped character, it easily happens, in individual cases, that the possession of a virtue confers no merit upon the possessor; and, at least from the point of view of the enlightened moral consciousness, a man’s virtues are no exact gauge of his moral worth. In order to form a just opinion of the value of a person’s character, we must take into account the strength of his instinctive desires and the motives of his conduct. There are virtues that pay no regard to this. A sober man, who has no taste for intoxicants, possesses the virtue of sobriety in no less degree than a man whose sobriety is the result of a difficult conquest over a strong desire. He who is brave with a view to be applauded is not, as regards the virtue of courage, inferior to him who faces dangers merely from a feeling of duty. The only thing that the possession of a virtue presupposes is that it should have been tried and tested. We cannot say that people unacquainted with intoxicants possess the virtue of sobriety, and that a man who never had anything to spend distinguishes himself for frugality. For to attribute a virtue to somebody is always to bestow upon him some degree of praise, and it is no praise, only irony, to say of a man that he “makes a virtue of necessity.”

149Attempts have been made to reconcile the Aristotelian and the Kantian views of the relation between virtue and effort, by saying that virtue is the harmony won and merit is the winning of it.28 This presupposes that a man to whom virtue is natural has had his fights. But, surely, it is not always so. Who could affirm that every temperate, or charitable, or just man has acquired the virtue only as a result of inward struggle? There are people to whom some virtues at least are natural from the beginning, and others who acquire them with a minimum of effort.

28 Dewey, Study of Ethics, p. 133 sq. Simmel, Einleitung in die Moralwissenschaft, i. 228. Cf. also Shaftesbury ‘Inquiry concerning Virtue and Merit,’ i. 2. 4, in Characteristicks, ii. 36 sqq.

There has been much discussion about the relation between virtue and duty. It has been said that “they are co-extensive, the former describing conduct by the quality of the agent’s mind, the latter by the nature of the act performed”;29 that they express the same ideal, virtue subjectively, duty objectively;30 or that virtue, in its proper sense, is “the quality of character that fits for the discharge of duty,” and that it “only lives in the performance of duty.”31 At the same time it is admitted that “the distinctive mark of virtue seems to lie in what is beyond duty,” and that “though every virtue is a duty, and every duty a virtue, there are certain actions to which it is more natural to apply the term virtuous.”32 Prof. Sidgwick, again, in his elaborate chapter on ‘Virtue and Duty,’ remarks that he has “thought it best to employ the terms so that virtuous conduct may include the performance of duty as well as whatever good actions may be commonly thought to go beyond duty; though recognising that virtue in its ordinary use is most conspicuously manifested in the latter.”33

29 Alexander, op. cit. p. 244.

30 Grote, Treatise on the Moral Ideals, p. 22. Cf. Seth, Study of Ethical Principles, p. 239.

31 Muirhead, Elements of Ethics, p. 190 n.*

32 Alexander, op. cit. p. 243 sq.

33 Sidgwick, op. cit. p. 221.

It can be no matter of surprise that those who regard the notion of “duty” as incapable of being analysed, or 150who fail to recognise its true import, are embarrassed by its relation to virtue. We do not call it a virtue if a man habitually abstains from killing or robbing, or pays his debts, or performs a great number of other duties. We do call chastity and temperance and justice virtues, although we regard it as obligatory on a man to be chaste, temperate, just. We also call hospitality, generosity, and charity virtues in cases where they go beyond the strict limits of duty. “The relation of virtue and duty is complicated,” says Professor Alexander.34 “In its common use each term seems to include something excluded from the other,” observes Professor Sidgwick.35 But, indeed, the relation is not complicated, for there is no other intrinsic relation between them than their common antagonism to “wrong.” That something is a duty implies that its non-performance tends to evoke moral indignation, that it is a virtue implies that its performance tends to evoke moral approval. That the virtues actually cover a comparatively large field of the province of duty is simply owing to their being dispositions of mind. We may praise the habits of justice and gratitude, even though we find nothing praiseworthy in an isolated just or grateful act.

34 Alexander, op. cit. p. 244.

35 Sidgwick, op. cit. p. 219.

There has been no less confusion with regard to the relation between duty and merit. Like the notions of “good” and “virtue,” the “meritorious” derives its origin from the emotion of moral approval; but while the former merely express a tendency to give rise to such an emotion, “meritorious” implies that the object to which it refers merits praise, that it has a just claim to praise, or, in other words, that it ought to be recognised as good. This makes the term “meritorious” more emphatic than the term “good,” but at the same time it narrows its province in a peculiar way. Just as the expression that something ought to be done implies the idea of its not being done, so the word “meritorious” suggests the idea of goodness which may fail of due recognition. And as it is meaningless to speak of duty in a case where the 151opposite mode of conduct is entirely out of the question, so it would be an absurdity to attribute merit to somebody for an act the goodness of which is universally admitted. Thus “meritorious” involves a restriction. It would be almost blasphemous to call the acts of a God conceived to be infinitely good meritorious, since it would suggest a limitation of his goodness.

The emphatic claim to praiseworthiness made by the “meritorious” has rendered it objectionable to a great number of moralists. It has been identified with the “super-obligatory”—a conception which is to many an abomination. From what has been said above, however, it is manifest that they are not identical. As the discharge of a duty may be regarded as a good act, so it may also be regarded as an act which ought to be recognised as good. Practically, no doubt, there is a certain antagonism between duty and merit. We praise, and, especially, we regard as deserving praise, only what is above the average,36 and we censure what is below it. No merit is conferred upon him who performs a duty which is seldom transgressed, or the transgression of which would actually incur punishment or censure. We do not think that a man ought to be praised for what his own interest prompts him to perform; and, since the transgression of a moral command which is usually obeyed is generally censured or punished, there is under ordinary circumstances nothing meritorious in performing a duty. But though thus probably most acts which are deemed meritorious fall outside the limits of duty as roughly drawn by the popular mind, we are on the other hand often disposed to attribute merit to a man on account of an act which, from a strict point of view, is his duty, but a duty which most people, under the same circumstances, would have left undischarged. This shows that the antagonism between duty and merit is not absolute. And in the concept of merit per se no such antagonism is involved.

36 Merit, as Professor Alexander puts it (op. cit. p. 196), “expresses the interval which separates the meritorious from the average.”

152I confess that I fail to grasp what those writers really mean who identify the “meritorious” with the “super-obligatory,” and at the same time deny the existence of any super-obligatory. Do they shut their eyes to the important psychical fact indicated by the term “merit,” or do they look upon it as a chimera inconsistent with a sufficiently enlightened moral consciousness? For my own part, I cannot see how the moral consciousness could dispense with the idea that there are actions which merit praise or reward, which ought to be praised or rewarded. The denial of merit can be defended from a purely theological point of view, but then only with regard to man’s relation to God. It is obvious that a fallen being who is sinning even when he does his best, could not be recognised as good by God and could have no merit. But it is hardly just, nor is it practically possible, that a man should measure his fellow-man by a superhuman standard of perfection, and try to suppress the natural emotion of moral approval and the claims springing from it, by persuading himself that there is no mortal being who ever does anything which ought to be recognised as good.

Quite distinct from the question of merit, then, is that of the super-obligatory. Can a man do more than his duty, or, in other words, is there anything good which is not at the same time a duty? The answer depends on the contents given to the commandments of duty, hence it may vary without affecting the concept of duty itself. If we consider that there is an obligation on every man to promote the general happiness to the very utmost of his ability, we must also maintain that nobody can ever do anything good beyond his duty. The same is the case if we regard “self-realisation,” or a “normal” exercise of his natural functions, as a man’s fundamental duty. In all these cases “to aim at acting beyond obligation,” as Price puts it,37 is “the same with aiming at acting contrary to obligation, and doing more than is fit to be done, the same with doing wrong.” It can hardly be denied, however,153 that those who hold similar views have actually two standards of duty, one by which they measure man and his doings in the abstract, with reference to a certain ideal of life which they please to identify with duty, and another by which they are guided in their practical moral judgments upon their own and their neighbours’ conduct. The conscientious man is apt to judge himself more severely than he judges others, partly because he knows his own case better than theirs,38 and partly because he is naturally afraid of being intolerant and unjust. He may indeed be unwilling to admit that he ever can do more than his duty, seeing how difficult it is even to do what he ought to do, and impressed, as he would be, with the feeling of his own shortcomings. Yet I do not see how he could conscientiously deny that he has omitted to do many praiseworthy or heroic deeds without holding himself blamable for such omissions.

37 Price, Review of the Principal Questions in Morals, p. 204 sq.

38 Cf. Sidgwick, op. cit. p. 221.

Professor Sidgwick observes that “we should not deny that it is, in some sense, a man’s strict duty to do whatever action he judges most excellent, so far as it is in his power.”39 This, as it seems to me, is not a matter of course, and nothing of the kind is involved in the notion of duty itself. We must not confound the moral law with the moral ideal. Duty is the minimum of morality, the supreme moral ideal of the best man is the maximum of it. Those who sum up the whole of morality in the word “ought” identify the minimum and the maximum, but I fail to see that morality is better for this. Rather it is worse. The recognition of a “super-obligatory” does not lower the moral ideal; on the contrary it raises it, or at any rate makes it more possible to vindicate the moral law and to administer it justly. It is nowadays a recognised principle in legislation that a law loses part of its weight if it cannot be strictly enforced. If the realisation of the highest moral ideal is commanded by a moral law, such a law will always remain a dead letter, and morality will gain nothing. Far above the anxious 154effort to fulfil the commandments of duty stands the free and lofty aspiration to live up to an ideal, which, unattainable as it may be, threatens neither with blame nor remorse him who fails to reach its summits. Does not experience show that those whose thoughts are constantly occupied with the prescriptions of duty are apt to become hard and intolerant?

39 Ibid. p. 219.

Those who deny the existence of anything morally “praiseworthy” which is not a duty, are also generally liable to deny the existence of anything morally indifferent in the conduct of responsible beings. The “super-obligatory” and the “indifferent” have this in common, that they are “ultra-obligatory,” and the denial of the one as well as of the other is an expression of the same tendency to look upon the moral law as the sole fact of the moral consciousness. Even Utilitarianism cannot consistently admit of anything indifferent within the province of moral valuation, since two opposite modes of conduct can hardly produce absolutely the same sum of happiness. Such a repudiation of the “indifferent” being quite contrary to the morality of common sense, which, after all, no ethical theory can afford to neglect, considerable ingenuity has been wasted on vain attempts to show that the “indifferent” is nothing but a rude popular conception unable to keep its ground against a thoroughgoing examination. Professor Ziegler ironically asks:—“Such outward matters as eating and drinking are surely morally indifferent? And yet is eating and drinking too much, is spending too much time in outdoor exercise, is lounging idly about, morally indifferent? or, on the other hand, is it morally allowable or wholesome to reduce oneself and make oneself weak and ill by fasting, or to become a hypochondriac by continually staying indoors?”40 This argument, however, involves a confusion of different volitions. The fact that eating or drinking generally, or eating or drinking too much or too little, are no matters of indifference, surely does not prevent 155eating or drinking on some certain occasion from being indifferent. Mr. Bradley again observes:—“It is right and a duty that the sphere of indifferent detail should exist. It is a duty that I should develop my nature by private choice therein. Therefore, because that is a duty, it is a duty not to make a duty of every detail; and thus in every detail I have done my duty.”41 This statement also shows a curious confusion of entirely different facts. It may be very true that it is a duty to recognise certain actions as indifferent. This is one thing by itself. But it is quite another thing to perform those actions. And if it is a duty to recognise certain actions as indifferent how could it possibly at the same time be held a duty to perform them?

40 Ziegler, op. cit. p. 85.

41 Bradley, Ethical Studies, p. 195, n. 1.

It has been maintained that the sphere of the indifferent forms the totality of “ought”; that when the same end may be reached by a variety of means, an action may be indifferent merely in relation to the choice of means, but not so far as regards the attainment of the end, and hence is only apparently indifferent.42 “If it is my moral duty to go from one town to another,” says Mr. Bradley, “and there are two roads which are equally good, it is indifferent to the proposed moral duty which road I take; it is not indifferent that I do take one or the other; and whichever road I do take, I am doing my duty on it, and hence it is far from indifferent: my walking on road A is a matter of duty in reference to the end, though not a matter of duty if you consider it against walking on road B; and so with B—but I can escape the sphere of duty neither on A nor on B.” All this is true, but forms no argument against the “indifferent.” The statement, “You ought to go to the town and to take either road A or B,” refers to two volitions which are regarded as wrong, namely, the volition not to go to the town at all, and the volition to take any road not A or B; and it 156refers also to two pairs of volitions in reference to which it indicates that the choice between the volitions constituting each pair is indifferent. You may choose to take road A or not to take it; you may choose to take road B or not to take it. The “indifferent” is always an alternative between contradictories. It can therefore never form part of an “ought”-totality, being itself a totality as complete as possible. This is somewhat disguised by a judgment which makes an obligation of a choice between A and B, but becomes conspicuous if we consider a simple case of indifference. Suppose that it is considered indifferent whether you speak or do not speak on a certain occasion. What is here the “ought” that forms the totality of the indifferent? Would there be any sense in saying that you ought either to speak or not to speak? or is the alternative, speaking—not speaking, only a link in an indefinite chain of alternatives, each of which is by itself indifferent, in a relative sense, but the sum of which forms the “ought”? You may be permitted—it will perhaps be argued—in a given moment to speak or to abstain from speaking, to write or to abstain from writing, to read or to abstain from reading, and so on; but however wide the province of the permissible may be, there must always be a limit inside which you ought to remain. That you do this or that may be a matter of indifference, but only of relative indifference, for it is not indifferent what you do on the whole; hence there is nothing absolutely indifferent. Such an argument, however, involves a misapprehension of the true meaning of the “indifferent.” The predicate expressing indifference refers to certain definite volitions and their contradictories, not to the whole of a man’s conduct in a certain moment. The whole of a man’s conduct is never indifferent. But neither is the whole of a man’s conduct ever wrong. In the moment when a murderer kills his victim he is fulfilling an endless number of duties: he abstains from stealing, lying, committing adultery, suicide, and so on. The predicate “wrong” only marks the moral 157character of a special mode of conduct. Why should not the indifferent be allowed to do the same?

42 Simmel, op. cit. i. 35 sqq. Alexander, op. cit. p. 50 sqq. Murray, op. cit. p. 26 sq. Bradley, op. cit. p. 195 sq.

It has, finally, been observed that the so-called “indifferent” is something “the morality of which can only be individually determined.”43 This remark calls attention to the fact that no mode of conduct can be regarded as indifferent without a careful consideration of individual circumstances, and that much which is apparently indifferent is not really so. This, however, does not involve an abolition of the indifferent. Such an abolition would be the extreme of moral intolerance. He who tried to put it into practice would be the most insupportable of beings, and to himself life would be unbearable. Fortunately, such a man has never existed. The attempts to make every action, even the most trivial, of responsible beings a matter of moral concern, are only theoretical fancies without practical bearing, a hollow and flattering tribute to the idol of Duty.

43 Martensen, Christian Ethics, p. 415.

 

 

 

 

CHAPTER VII

CUSTOMS AND LAWS AS EXPRESSIONS OF MORAL IDEAS

 

MORAL ideas are expressed in moral judgments. We have hitherto examined the predicates of such judgments, the import and origin of the moral concepts. Now a much wider field or research remains for us to traverse. We shall direct our attention to the subjects of moral judgments, to the mass of phenomena which, among different peoples and in different ages, have had a tendency to call forth moral blame and moral praise. We shall discuss the general characteristics which all these phenomena have in common. We shall classify the most important of them, and study the moral ideas held with reference to the phenomena of each class separately. And in both cases we shall not only analyse, but try to find an answer to the question, Why?—the ultimate aim of all scientific research. But before entering upon this vast undertaking, we must define the lines on which it is to be conducted. How can we get an insight into the moral ideas of mankind at large?

In answering this question I need not dwell upon such obvious means of information as direct experience, or records of moral maxims and sentiments found in proverbs, literary and philosophical works, and religious codes. The sources which, from an evolutionary point of view, are of the most comprehensive importance for our study, are tribal and national customs and laws. It is to these sources that the present chapter will be devoted.

159We have seen that a custom, in the strict sense of the word, is not merely the habit of a certain circle of men, but at the same time involves a moral rule. There is a close connection between these two characteristics of custom: its habitualness and its obligatoriness. Whatever be the foundation for a certain practice, and however trivial it may be, the unreflecting mind has a tendency to disapprove of any deviation from it for the simple reason that such a deviation is unusual. As Abraham Tucker observes, “it is a constant argument among the common people, that a thing must be done, and ought to be done, because it always has been done.”1 Children show respect for the customary,2 and so do savages. “If you ask a Kaffir why he does so and so, he will answer—‘How can I tell? It has always been done by our forefathers.’”3 The only reason which the Eskimo can give for some of their present customs, to which they adhere from fear of ill report among their people, is that “the old Innuits did so, and therefore they must.”4 In the behaviour of the Aleut, who “is bashful if caught doing anything unusual among his people,”5 and in the average European’s dread of appearing singular, we recognise the influence of the same force of habit.

1 Tucker, Light of Nature, ii. 593. Cf. also Simmel, Einleitung in die Moralwissenschaft, i. 65 sqq.

2 Sully, Studies of Childhood, p. 280 sq.

3 Leslie, Among the Zulus and Amatongas, p. 146.

4 Hall, Arctic Researches, p. 569.

5 Dall, Alaska, p. 396.

On the other hand, it should be remembered that not every public habit is a custom, involving an obligation; certain practices, though very general in a society, may even be reprobated by almost every one of its members. The habits of a people must therefore be handled with discretion by the student of moral ideas. Yet when he has no reason to conclude as to some special habit that it is held obligatory, he may, probably always, be sure that it is either allowed, or, in spite of all assurances of its wickedness, that the disapproval of it is not generally very deep or genuine. In a community where lying is a 160prevailing vice, truthfulness cannot be regarded as a very sacred duty; and where sexual immorality is widely spread, the public condemnation of it always smacks of hypocrisy. Men’s standard of morality is not independent of their practice. The conscience of a community follows the same rule as the conscience of an individual. “Commit a sin twice,” says the Talmud, “and you will think it perfectly allowable.”6 Hence for the study of the inmost convictions of a nation, its “bad habits” form a valuable complement to its professed opinions.

6 Deutsch, Literary Remains, p. 58.

The dictates of custom being dictates of morality, it is obvious that the study of moral ideas will, to a large extent, be a study of customs. But at the same time it should be borne in mind that custom never covers the whole field of morality, and that the uncovered space grows larger in proportion as the moral consciousness develops. Being a rule of duty, custom may only indirectly be an expression of moral approval, by claiming, in certain cases, that goodness should be rewarded. But even when demanding praise, custom is not always a reliable exponent of merit; it includes politeness, and politeness is a great deceiver. Custom may compel us to praise a man for form’s sake, when he deserves no praise, and to thank him when he deserves no thanks. Moreover, custom regulates external conduct only. It tolerates all kinds of volitions and opinions if not openly expressed. It does not condemn the heretical mind, but the heretical act. It demands that under certain circumstances certain actions shall be either performed or omitted, and, provided that this demand is fulfilled, it takes no notice of the motive of the agent or omitter. Again, in case the course of conduct prescribed by custom is not observed, the mental facts connected with the transgression, if regarded at all, are dealt with in a rough and ready manner, according to general rules which hardly admit of individualisation. Yet the incongruity between custom and morality which ensues from these circumstances is on 161the whole more apparent than real. It is rather an incongruity between different moral standards. The unreflecting moral consciousness, like custom, cares comparatively little for the internal aspect of conduct. It does not ask whether a man goes to church on Sunday from a religious motive or from fear of public opinion; it does not ask whether he stays at home from love of ease or from dissent of belief and avoidance of hypocrisy. It is ready to blame as soon as the dictate of custom is disobeyed. The rule of custom is the rule of duty at early stages of development. Only progress in culture lessens its sway.

Finally, the moral ideas which are expressed in the customs of a certain circle of men are not necessarily shared by every one of its members. This may, in the present connection, be considered a matter of slight importance by him who regards morality as “objectively” realised in the customs of a people, and who denies the individual the right to a private conscience. But from the subjective point of view which I am vindicating, individual conviction has a claim to equal consideration with public opinion, nay frequently, to higher respect, representing as it does in many cases a higher morality, a moral standard more purified by reflection and impartiality. At the lower stages of civilisation, however, where a man is led by his feelings more than by his thoughts, such a differentiation of moral ideas hardly occurs. The opinions of the many are the opinions of all, and the customs of a society are recognised as rules of duty by all its members.

In primitive society custom stands for law, and even where social organisation has made some progress it may still remain the sole rule for conduct.7 The authority of 162a chief does not necessarily involve a power to make laws. Even kings who are described as autocrats may be as much tied by custom as is any of their subjects.

7 Cranz, History of Greenland, i. 170. Dall, op. cit. p. 381 (Tuski). Dobrizhoffer, Account of the Abipones, p. 95. Shooter, Kafirs of Natal and the Zulu Country, p. 101 sq. Holden, Past and Future of the Kaffir Races, p. 336. Mungo Park, Travels in the Interior of Africa, p. 16. Scaramucci and Giglioli, ‘Notizie sui Danakil,’ in Archivio per l’antropologia e la etnologia, xiv. 39. Earl, Papuans, p. 105 (Arru Islanders). Forbes, A Naturalist’s Wanderings in the Eastern Archipelago, p. 473 (Timorese). Dalton, Ethnology of Bengal, p. 51 (Manipuris). Rockhill, Land of the Lamas, p. 220 (Eastern Tibetans).

The Rejangs of Sumatra “do not acknowledge a right in the chiefs to constitute what laws they think proper, or to repeal or alter their ancient usages, of which they are extremely tenacious and jealous.” There is no word in their language which signifies law, and the chiefs, in pronouncing their decisions are not heard to say, “So the law directs,” but, “Such is the custom.”8 According to Ellis, “the veneration of the Malagasy for the customs derived from tradition, or any accounts of their ancestors … influences both their public and private habits; and upon no individual is it more imperative than upon their monarch, who, absolute as he is in other respects, wants either the will or the power to break through the long-established regulations of a superstitious people.”9 The king of Ashanti, although represented as a despotic monarch, is nevertheless under an obligation to observe the national customs which have been handed down to the people from remote antiquity, and a practical disregard of this obligation, in the attempt to change some of the old customs, cost one of the kings his throne.10 “The Africans,” says Mr. Winwood Reade, with special reference to Dahomey, “have sometimes their enlightened kings, as the old barbarians had their sages and their priests. But it is seldom in the power of the heads of a people to alter those customs which have been held sacred from time immemorial.”11 The Basutos, among whom “the chiefs have the right of making laws and publishing regulations required by the necessities of the times,” regard such laws, or molaos, as inferior to the mekhoas, “the use and wont,” which constitute the real laws of the country.12 Among the ancient Irish, there was no sovereign authority competent to enact a new law, the function of the king being merely, as chief of the tribal assembly, to see that the proper customs were observed.13

8 Marsden, History of Sumatra, p. 217.

9 Ellis, History of Madagascar, i. 359.

10 Beecham, Ashantee and the Gold Coast, p. 90 sq. Cf. Stuhlmann, Mit Emin Pascha ins Herz von Afrika, p. 523 (A-lūr).

11 Reade, Savage Africa, p. 52 sq.

12 Casalis, Basutos, p. 228.

13 Ancient Laws of Ireland, iii. p. lxxxvi. sq. Cherry, Growth of Criminal Law, p. 33.

163In competition with law, custom frequently carries the day. In India, especially in the South, “custom has always been to a great extent superior to the written law.”14 In the Ramnad case, the Judicial Committee expressly declared that, “under the Hindu system of law, clear proof of usage will outweigh the written text of the law.”15 It was also a maxim of the Roman jurists that laws may be abrogated by desuetude or contrary usage;16 and in modern times the same doctrine is acted upon in Scotland.17 Moreover, when a custom cannot abrogate the law, it may still have a paralysing influence on its execution. According to the laws of European nations, a man who has killed another in a duel is to be treated as a homicide; yet wherever the duel exists as a custom, the law against it is ineffective. So it is on the Continent, and so it was in England in the eighteenth century, when a well-informed writer could affirm that he had “not found any case of an actual execution in England in consequence of a duel fairly fought.”18 In this instance the ineffectiveness of the law is owing to the fact that the law has not been able to abolish an old custom. But the superiority of custom also shows itself in cases where the law itself is getting antiquated, and a new custom, enforced by public opinion, springs up in opposition to it. Thus, contrary to law and earlier usage, it is nowadays the custom of certain European countries that a sentence of death is not carried into execution. Even “bad habits” tend to weaken the authority of the law. Probably the two most prominent civil vices of the Chinese are bribery and gambling. Against both these vices their penal code speaks with no uncertain sound; and yet, according to 164Professor Douglas, it is no exaggeration to say that if the law were enforced, it would make a clean sweep of ninety-nine of every hundred officials in the empire.19 Other illustrations of the same principle may be found much nearer home.

14 Burnell, quoted by Nelson, View of the Hindū Law, p. 136.

15 Mayne, Treatise on Hindu Law and Usage, p. 41.

16 Institutiones, i. 2. 11. Digesta, i. 3. 32.

17 Mackenzie, Studies in Roman Law, p. 54.

18 Quoted by Bosquett, Treatise on Duelling, p. 80. Cf. A Short Treatise upon the Propriety and Necessity of Duelling, printed at Bath in 1779. In 1808, however, Major Campbell was sentenced to death and executed for killing Captain Boyd in a duel (Storr, ‘Duel,’ in Encyclopædia Britannica, vii. 514).

19 Douglas, Society in China, p. 82.

Custom has proved stronger than law and religion combined. Sir Richard Burton writes of the Bedouins, “Though the revealed law of the Koran, being insufficient for the Desert, is openly disregarded, the immemorial customs of the Kazi al-Arab (the Judge of the Arabs) form a system stringent in the extreme.”20 So, also, the Turkomans are ruled, often tyrannised over, by a mighty sovereign, invisible indeed to themselves, but whose presence is plainly discerned in the word deb—“custom,” “usage.” Our authority adds:—“It is very remarkable how little the ‘Deb’ has suffered in its struggle of eight centuries with Mahommedanism. Many usages, which are prohibited to the Islamite, and which the Mollahs make the object of violent attack, exist in all their ancient originality.”21

20 Burton, Pilgrimage to Al-Madinah and Meccah, ii. 87.

21 Vámbéry, Travels in Central Asia, p. 310 sqq.

The laws themselves, in fact, command obedience more as customs than as laws. A rule of conduct which, from one point of view, is a law, is in most cases, from another point of view, a custom; for, as Hegel remarks, “the valid laws of a nation, when written and collected, do not cease to be customs.”22 There are instances of laws that were never published, the knowledge and administration of which belonged to a privileged class, and which nevertheless were respected and obeyed.23 And among ourselves the ordinary citizen stands in no need of studying the laws under which he lives, custom being generally the safe guiding star of his conduct. Custom, as Bacon said, is “the principal magistrate of man’s life,”24 or, as the ancients put it, “the king of all men.”25

22 Hegel, Philosophie des Rechts, § 211, p. 199.

23 Rein, Japan, p. 314.

24 Bacon, ‘Essay xxxix. Of Custom and Education,’ in Essays, p. 372.

25 Herodotus, iii. 38.

165Many laws were customs before they became laws. Ancient customs lie at the foundation of all Aryan law-books. Mr. Mayne is of opinion that Hindu law is based upon customs which existed even prior to and independent of Brahmanism.26 The Greek word νόμος means both custom and law, and this combination of meanings was not owing to poverty of language, but to the deep-rooted idea of the Greek people that law is, and ought to be, nothing more and nothing less than the outcome of national custom.27 A great part of the Roman law was founded on the mores majorum; in the Institutes of Justinian, it is expressly said that “long prevailing customs, being sanctioned by the consent of those who use them, assume the nature of Laws.”28 The case was similar with the ancient laws of the Teutons and Irish.29

26 Mayne, op. cit. p. 4.

27 Ziegler, Social Ethics, p. 30. Schmidt, Ethik der alten Griechen, i. 201.

28 Institutiones, i. 2. 9.

29 Joyce, Social History of Ancient Ireland, i. 181.

The transformation of customs into laws was not a mere ceremony. Law, like custom, is a rule of conduct, but, while custom is established by usage and obtains, in a more or less indefinite way, its binding force from public opinion, a law originates in a definite legislative act, being set, as Austin says, by a sovereign person, or a sovereign body of persons, to a person or persons in a state of subjection to its author.30 By becoming laws, then, the customs were expressly formulated, and were enforced by a more definite sanction. It seems that the process in question arose both from considerations of social utility and from a sense of justice. Cicero observes that it was for the sake of equity that “laws were invented, which perpetually spoke to all men with one and the same voice.”31 From these points of view it was neither necessary nor desirable that more than a limited set of customs should pass into laws. There are customs which are too indefinite to assume the stereotyped shape of law.32 There are others, the breach 166of which excites too little public indignation, or which are of too little importance for the public welfare, to be proper objects of legislation. And there are others which may be said to exist unconsciously, that is, which are universally observed as a matter of course, and which, never being transgressed, are never thought of.

30 Austin, Lectures on Jurisprudence, i. 87, 181, &c.

31 Cicero, De officiis, ii. 12.

32 Cf. Aristotle, Ethica Nicomachea, v. 10. 6.

Laws which are based on customs naturally express moral ideas prevalent at the time when they are established. On the other hand, though still in existence, they are not necessarily faithful representatives of the ideas of a later age. Law may be even more conservative than custom. Though the latter exercises a very preservative influence on public opinion, it eo ipso changes when public opinion changes. Even among savages, in spite of their extreme regard for the customs of their ancestors, it is quite possible for changes to be introduced; the traditions of the Central Australian Arunta, for instance, indicate their own recognition of the fact that customs have varied from time to time.33 But the legal form gives to an ancient custom such a fixity as to enable it to survive, as a law, the change of public opinion and the introduction of a new custom. In all progressive societies, as Sir Henry Maine observes, social necessities and social opinion are always more or less in advance of law. “We may come indefinitely near to the closing of the gap between them, but it has a perpetual tendency to re-open.”34

33 Spencer and Gillen, Native Tribes of Central Australia, p. 12 sqq.

34 Maine, Ancient Law, p. 24.

The moral ideas of a people are less extensively represented in its laws than in its customs. This is a corollary of the fact that there are always a great number of customs which never become laws. Moreover, whilst law, like custom, directly expresses only what is obligatory, it hardly ever deals with merit, even indirectly. The Chinese have a method of rewarding and commemorating meritorious and virtuous subjects by erecting gates in their honour, and conferring upon them marks of public distinction;16735 and the Japanese and Coreans award prizes in the form of money or silver cups or monumental columns to signal exemplars of filial piety, arguing that, if the law punishes crime, it ought also to reward virtue.36 In Europe we have titles and honours, pensions for distinguished service, and the like; but the distribution of them is not regulated by law, and has often little to do with morality.

35 de Groot, Religious System of China (vol. ii. book) i. 769, 789 sq.

36 Griffis, Corea, p. 236.

Law, like custom, only deals with overt acts, or omissions, and cares nothing for the mental side of conduct, unless the law be transgressed. Yet, as will be seen subsequently, though this constitutes an essential difference between law and the enlightened moral consciousness, it throws considerable light on the moral judgments of the unreflecting mind.

Being a general, and at the same time a strictly defined, rule of conduct, a law can even less than a custom make special provision for every case so as to satisfy the demand of justice. This disadvantage, however, was hardly felt in early periods of legislation, when little account was taken of what was behind the overt act; and at later stages of development, the difficulty was overcome by leaving greater discretion to the judge. The history of legal punishments in England, for instance, shows a change from a system which, except in cases of misdemeanour, left no discretion at all to judges, to a system under which unlimited discretion is left to them in all cases except those which are still liable to capital punishment—practically, high treason and murder.37 The study of law, then, must for our purpose be supplemented by the study of judicial practice.

37 Stephen, History of the Criminal Law of England, ii. 87.

Laws which represent public opinion are no more than customs safe exponents of the moral ideas held by particular members of the society. But on the other hand, there are cases in which a law, unlike a custom, may express the ideas, or simply the will, of a few, or even of 168a single individual, that is, of the sovereign power only. It is obvious that laws imposed upon a barbarous people by civilised legislators may differ widely from the people’s own ideas of right and wrong. For instance, when studying the moral sentiments of the Teutonic peoples from their early law-books, we must carefully set aside all elements of Roman or Christian origin. At the same time, however, it should be remembered that the moral consciousness of a people may gradually be brought into harmony with a law originally foreign to it. If the law is in advance of public opinion—as Roman law undoubtedly was in Teutonic countries—it may raise the views of the people up to its own standard by awaking in them dormant sentiments, or by teaching them greater discrimination in their judgments. And, as has been already noticed, what is forbidden and punished may, for the very reason that it is so, come to be regarded as wrong and worthy of punishment.

Finally, a law may enjoin or forbid acts which by themselves are regarded as indifferent from a moral point of view. This is, for instance, the case with the laws which require marriages to be celebrated at certain times and places only, and which forbid the cultivation of tobacco in England. Jurists divide crimes into mala in se and mala quia prohibita. The former would be wrong even if they were not prohibited by law, the latter are wrong only because they are illegal.

A law expresses a rule of duty by making an act or omission which is regarded as wrong a crime, that is, by forbidding it under pain of punishment. Law does not in all cases directly threaten38 with punishment—I say directly, since all law is coercive, and all coercion at some stage involves the possibility of punishment.39 Sanctions, or the consequences by which the sovereign political authority threatens to enforce the laws set by it, may 169have in view either the indemnification of the injured party, or the suffering of the injurer. In the latter case the sanctions are called punishments. But, though highly important, the distinction between indemnification and punishment is not absolute. A person who causes harm to another would hardly have to pay damages unless some kind of guilt or quasi-guilt were imputed to him; and, on the other hand, punishment may actually consist in the damages he has to pay. Moreover, the suffering involved in punishment must be regarded as a kind of indemnification in so far as it is intended to gratify the injured party’s craving for revenge. The pleasure of vengeance, says Bentham, “is a gain; it calls to mind Samson’s riddle—it is sweet coming out of the terrible, it is honey dropping from the lion’s mouth.”40 In cases where the injured party is allowed to decide whether the injurer shall be punished or not, or what punishment (within certain limits) shall be inflicted upon him, it is obvious that punishment is largely looked upon as a means of indemnification. However, the fact that such a privilege is granted to the injured party indicates the existence of some degree of sympathetic resentment in the public. Punishment, in all its forms, is essentially an expression of indignation in the society which inflicts it.41 Hence it is of extreme importance for the study of moral ideas, and calls for our careful consideration.

38 “Not every sovereign can make sure of enforcing his commands; and sometimes laws are made without even any great intention of enforcing them” (Pollock, Essays in Jurisprudence and Ethics, p. 9 sq.).

39 Cf. Stephen, op. cit. i. 2.

40 Bentham, Theory of Legislation, p. 309.

41 “Die Missbilligung ist das Wesentliche aller Strafe” (von Bar, Die Grundlagen des Strafrechts, p. 4). “La peine consiste dans une réaction passionnelle d’intensité graduée” (Durkheim, Division du travail social, p. 96).

By punishment I do not understand here every suffering inflicted upon an offender in consequence of his offence, but only such suffering as is inflicted upon him in a definite way by, or in the name of, the society of which he is a permanent or temporary member. This definition holds good whatever may be the opinion about the final object of punishment. Whether its purpose is, or is supposed to be, either reformation, or determent, or retribution, its immediate aim is always to cause suffering. 170We should not call it punishment if the reformation of the criminal were attempted, say, by means of hypnotism.

It is a common opinion that punishment, in this sense of the word, is a social institution of comparatively modern origin, which has sprung from, and gradually superseded, the earlier custom of individual or family revenge. This opinion may seem plausible to the student of European and Eastern law, but, as we shall see, the early history of civilised races is apt to give a somewhat erroneous idea of the evolution of punishment. Even among savages public indignation frequently assumes that definite shape which constitutes the difference between punishment and mere condemnation.42

42 See Steinmetz, Ethnologische Studien zur ersten Entwicklung der Strafe, ii. 327 sqq.; Makarewicz, Évolution de la peine, passim.

Savage punishment sometimes simply consists in publicly putting the offender to shame.

In Greenland the courts of justice were the public assemblies, which at the same time supplied the national sports and entertainments. Here “nith-songs” were used for settling all sorts of crimes or breaches of public order or custom, with the exception of those which could only be expiated by death; by means of cutting capers and singing, the offender was told of his faults, and the opposite virtues were praised to all who were present.43 The same institution is found, with only incidental differences, among several other tribes within and beyond the Arctic circle.44 And, knowing the sensitiveness of these peoples, we may assume that the punishment in question is by no means lenient. In Greenland “it now and then happens that some one or other, wounded, perhaps, by a single word from one of his kinsfolk, runs away to the mountains, and is lost for several days at least.”45 And Adair, speaking of the public jesting by which North American Indians used to punish young people who were guilty of petty crimes, says that “they would sooner die by torture, than renew their shame by repeating the actions.”46

43 Rink, Eskimo Tribes, p. 24 sq. Idem, Greenland, pp. 141, 150. Cranz, op. cit. i. 165 sq. Holm, ‘Ethnologisk Skizze af Angmagsalikerne,’ in Meddelelser om Grönland, p. 87.

44 Kane, Arctic Explorations, ii. 128 sq.

45 Nansen, Eskimo Life, p. 267 sq.

46 Adair, History of the American Indians, p. 429 sq.

171In other instances the community as a whole expresses its indignation by inflicting suffering of a more material kind upon the culprit.

In certain Australian tribes, when a native for any transgression incurs the displeasure of his tribe, custom compels him to “stand punishment,” as it is called; that is, he stands with a shield at a fair distance, while the whole tribe, either simultaneously or in rapid succession, cast their spears at him. Their expertness generally enables those who are exposed to this trial to escape without serious injury, though instances of a fatal result occasionally occur; however, there is a certain propriety even in this extraordinary punishment, as the accuracy and force with which the weapons are thrown will depend very much on the opinion entertained of the enormity of the offence.47 Among the North-West-Central Queensland aborigines, though each individual, within certain limits, can do what he pleases, “he has to reckon not only with the particular person injured, or his relatives, but also, in some cases, with the whole camp collectively. Thus the camp as a body, as a camp council, will take upon itself to mete out punishment in crimes of murder, incest, or the promiscuous use of fighting-implements within the precincts of the camping-ground: death, and probably the digging of his own grave, awaits the delinquent in the former case, while ‘crippling,’ generally with knives, constitutes the penalty for a violation of the latter.” Again, if a woman makes herself obnoxious in the camp, especially to the female portion of it, she is liable to be set upon and “hammered” by her fellow-sisters collectively, the men on such occasions not interfering.48 Among the Bangerang tribe of Victoria, “any one who had suffered a wrong complained of it, if at all, at night aloud to the camp, which was silent and attentive. Then the accused was heard. Afterwards those who chose, men or women, expressed their views on the subject; and if general opinion pronounced the grievance a good one, the accused accepted the penalty sanctioned by custom.”49 Among various tribes in Western Victoria, “should a person, through bad conduct, become a constant anxiety and trouble 172to the tribe, a consultation is held, and he is put to death.”50 Among the Mpongwe, if a man murders another, he is put to death, not by the nearest of kin, but by the whole community, being either drowned or burned alive.51 Among the Hudson Bay Eskimo, “when a person becomes so bad in character that the community will no longer tolerate his presence he is forbidden to enter the huts, partake of food, or hold any intercourse with the rest. Nevertheless, as long as he threatens no one’s life, but little attention is paid to him. Should he be guilty of a murder, several men watch their opportunity to surprise him and put him to death, usually by stoning. The executioners make no concealment of their action and are supported by public opinion in the community.”52

47 Hale, U.S. Exploring Expedition. Vol. VI. Ethnography and Philology, p. 114. Cf. Eyre, Journals of Expeditions of Discovery into Central Australia, ii. 388; Collins, English Colony in New South Wales, i. 586; Brough Smyth, Aborigines of Victoria, ii. 295.

48 Roth, Ethnological Studies among the North-West-Central Queensland Aborigines, pp. 139, 141. Curr, The Australian Race, i. 61 sq.

49 Curr, Squatting in Victoria, p. 245.

50 Dawson, Australian Aborigines, p. 76.

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

52 Turner, ‘Ethnology of the Ungava District,’ in Ann. Rep. Bur. Ethn. xi. 186.

Among various savage peoples expulsion from the tribe is the punishment of persons whose conduct excites great public indignation, and among others such persons are outlawed.

The Chippewyans, among whom “order is maintained in the tribe solely by public opinion,” the chief having no power to punish crimes, occasionally expel from the society individuals whose conduct is exceptionally bad and threatens the general peace.53 The Salish, or flathead Indians, sometimes punished notorious criminals by expulsion from the tribe or band to which they belonged.54 Sir E. F. Im Thurn, whilst praising the Indians of Guiana for their admirable morality as long as they remain in a state of nature, adds that there are exceptions to the rule, and that such individuals “are soon killed or driven out from their tribe.”55 Among the Bedouins of the Euphrates, “in extreme cases, and as the utmost penalty of the law, the offender is turned out of the tribe”;56 and the same is the case among the Beni Mzab.57 In the Scotch Highlands, even to this day, instances are common of public opinion operating as a punishment, to the extent of forcing individuals into exile.58 There are cases reported from various parts of the savage world of banishment being inflicted as a punishment for sexual 173offences;59 and other instances of expulsion are mentioned by Dr. Steinmetz.60 In some cases, however, expulsion is to be regarded rather as a means of ridding the community from a pollution, than as a punishment in the proper sense of the term.61

53 Richardson, Arctic Searching Expedition, ii. 26 sq.

54 Hale, op. cit. p. 208.

55 Im Thurn, Among the Indians of Guiana, p. 213.

56 Blunt, Bedouin Tribes of the Euphrates, ii. 206.

57 Chavanne, Sahara, p. 315. Tristram, Great Sahara, p. 207.

58 Stewart, Highlanders of Scotland, p. 380.

59 Westermarck, History of Human Marriage, p. 61 sqq.

60 Steinmetz, op. cit. ii. ch. 5.

61 See infra, on Homicide.

Nearly related to the punishment of expulsion is that of outlawry. Von Wrede states that the Bedouins of Ḥadhramaut give a respite of three days to the banished man, and that after the lapse of this period every member of the tribe is allowed to kill him.62 Among the Wyandots the lowest grade of outlawry consists in a declaration that, if the offender shall continue in the commission of crimes similar to that of which he has been guilty, it will be lawful for any person to kill him, whilst outlawry of the highest degree makes it the duty of any member of the tribe who may meet with the offender to kill him.63 Among the ancient Teutons, also, outlawry was originally a declaration of war by the commonwealth against an offending member, and became only later on a regular means of compelling submission to the authority of the courts.64

62 von Wrede, Reise in Ḥadhramaut, p. 51.

63 Powell, ‘Wyandot Government,’ in Ann. Rep. Bur. Ethn. i. 68.

64 Pollock and Maitland, History of English Law before the time of Edward I. i. 49.

Most generally, however, punishment is inflicted upon the culprit, not by the whole of the community, but by some person or persons invested with judicial authority. Indeed, it is not only civilised races who have judges and courts of justice. Among savages and barbarians justice is very frequently administered by a council of elders or by a chief.65 Even people of so low a type as the Australian aborigines have their tribunals.

65 Petroff, ‘Report on Alaska,’ in Tenth Census of the United States, p. 152 (Aleuts). Morgan, League of the Iroquois, p. 330. Powell, in Ann. Rep. Bur. Ethn. i. 63, 66 sq. (Wyandots). Idem, ‘Sociology,’ in American Anthropologist, N.S. i. 706 (North American tribes). Schoolcraft, Indian Tribes of the United States, i. 277 (Creeks). von Martius, Beiträge zur Ethnographie Amerika’s, i. 88 (Brazilian Indians). Cook, Journal of a Voyage round the World, p. 41 (Tahitians). Lister, in Jour. Anthr. Inst. xxi. 54 (Bowditch Islanders). Codrington, Melanesians, p. 345 (Solomon Islanders). Hunt, in Jour. Anthr. Inst. xxviii. 6 (Murray Islanders). Kohler, in Zeitschr. f. vergl. Rechtswiss. xiv. 448; Senfft, in Steinmetz, Rechtsverhältnisse, p. 448; Kubary, ‘Die Ebongruppe im Marshall’s Archipel,’ in Journal des Museum Godeffroy, i. 37 (Marshall Islanders). Idem, Ethnographische Beiträge zur Kenntniss der Karolinischen Inselgruppe, p. 73 sqq.; Idem, ‘Die Palau-Inseln,’ in Journal des Museum Godeffroy, iv. 42 (Pelew Islanders). von Kotzebue, Voyage of Discovery, iii. 208 (Caroline Islanders). Worcester, Philippine Islands, p. 107 (Tagbanuas of Palawan). Marsden, History of Sumatra, p. 217 (Rejangs). von Brenner, Besuch bei den Kannibalen Sumatras, p. 211 (Bataks). Forbes, A Naturalist’s Wanderings in the Eastern Archipelago, p. 243 (Kubus of Sumatra). Man, Sonthalia, p. 88 sq. Cooper, Mishmee Hills, p. 238. Macpherson, Memorials of Service in India, p. 83 (Kandhs). Stewart, in Jour. As. Soc. Bengal, xxiv. 609, 620 (Nagas, Old Kukis). Dalton, Ethnology of Bengal, p. 45 (Kukis). Forsyth, Highlands of Central India, p. 361 (Bygás). Shortt, in Trans. Ethn. Soc. N.S. vii. 241 (Todas). Batchelor, Ainu and their Folk-Lore, p. 278; von Siebold, Die Aino auf der Insel Yesso, p. 34. From Africa a great number of instances might be quoted, e.g.:—Nachtigal, Sahara und Sudan, i. 449 (Tedâ). Petherick, Egypt, the Soudan, and Central Africa, p. 320 (Nouaer tribes). Beltrame, Il Fiume Bianco, p. 77 (Shilluk). Laing, Travels in the Timannee, &c. Countries, p. 365 (Soolimas). Mungo Park, Travels in the Interior of Africa, p. 15 sq. (Mandingoes). Leuschner, in Steinmetz, Rechtsverhältnisse, p. 22 (Bakwiri). Ibid. p. 47 (Banaka and Bapuku). Tellier, ibid. p. 175 (Kreis Kita, in the French Soudan). Bosman, New Description of the Coast of Guinea, p. 331 (Negroes of Fida). Casati, Ten Years in Equatoria, p. 158, 163 (Akkas, Mambettu). Stuhlmann, Mit Emin Pascha ins Herz von Africa, p. 523 (A-lūr). Emin Pasha in Central Africa, p. 89 (Wanyoro). Baskerville, in Steinmetz, Rechtsverhältnisse, p. 193 (Waganda). Beverley, ibid. p. 214 (Wagogo). Lang, ibid. p. 253 sqq. (Washambala). Desoignies, ibid. p. 279 sq. (Msalala). Decle, Three Years in Savage Africa, pp. 71, 73, 74, 487 (Barotse, Wakamba). Junod, Les Ba-Ronga, p. 155 sq. Burton, Zanzibar, ii. 94 (Wanika). Holub, Seven Years in South Africa, ii. 319 (Marutse). Kohler, in Zeitschr. f. vergl. Rechtswiss. xiv. 316 (Herero). Andersson, Lake Ngami, p. 197 (Ovambo). Rautanen, in Steinmetz, Rechtsverhältnisse, p. 340 (Ondonga). Kolben, Present State of the Cape of Good Hope, p. 86, 297 (Hottentots). Kohler, in Zeitschr. f. vergl. Rechtswiss. xv. 333 (Bechuanas). Casalis, Basutos, pp. 224, 226. Maclean, Compendium of Kafir Laws and Customs, pp. 35, 110. Holden, Past and Future of the Kaffir Races, pp. 333, 336. Shooter, Kafirs of Natal, p. 99 sq.

174Speaking of the native tribes of Central Australia, Messrs. Spencer and Gillen observe:—“Should any man break through the strict marriage laws, it is not only an ‘impersonal power’ which he has to deal with. The head men of the group or groups concerned consult together with the elder men, and, if the offender, after long consultation, be adjudged guilty and the determination be arrived at that he is to be put to death—a by no means purely hypothetical case—then the same elder men make arrangements to carry the sentence out, and a party, which is called an ininja, is organised for the purpose.”66 We hear of similar councils from various parts of the Australian continent. In his description of the aborigines of New South Wales, Dr. Fraser states, “The Australian council of old and experienced men—this aboriginal senate and witenagemot—has the power to decree punishment for tribal offences.” The chiefs sit as magistrates to decide all cases which are brought before them, such as the divulging of sacred things, speaking to a mother-in-law, the adultery of a wife; and there is even a 175tribal executioner. At the same time, many grievances are arranged without the intervention of the chiefs; for instance, if a man has been found stealing from his neighbour, or two men quarrel about a woman, a fight ensues, the one or the other gets his head broken, and there the matter ends.67 The Narrinyeri have a judgment council of the elders of the clan, called tendi, which is presided over by the chief of the clan; and when any member of the tendi dies, the surviving members select a suitable man from the clan to succeed him. “All offenders are brought to this tribunal for trial. In cases of the slaying by a person or persons of one clan of the member of another clan in time of peace, the fellow-clansmen of the murdered man will send to the friends of the murderer and invite them to bring him to trial before the united tendies. If, after full inquiry, he is found to have committed the crime, he will be punished according to the degree of guilt.”68 Among another Australian tribe, the Gournditch-mara, again, the headman, whose office was hereditary, “settled all quarrels and disputes in the tribe. When he had heard both sides, and had given his decision in a matter, no one ever disputed it.”69

66 Spencer and Gillen, op. cit. p. 15.

67 Fraser, Aborigines of New South Wales, p. 39.

68 Taplin, ‘Narrinyeri,’ in Woods, Native Tribes of South Australia, p. 34 sq.

69 Fison and Howitt, Kamilaroi and Narrinyeri, p. 277.

Among the Australian aborigines, then, we find cases in which punishment is inflicted by the whole community, and other cases in which it is inflicted by a tribunal or a chief. There can be little doubt that the latter system has developed out of the former; there are obvious instances of transition from the one to the other. Among the North-West-Central Queensland natives, for instance, in cases of major offences, such as murder, incest, or physical violence, the old men are only said to “influence” aboriginal public opinion.70 It is an inconvenient, and in larger communities a difficult, procedure for the whole group to inflict punishments in common, hence the administration of justice naturally tends to pass into the hands of the leading men or the chief. But the establishment of a judicial authority within the society may also have a different origin. Very frequently judicial organisation 176seems to have developed, not out of a previous system of lynch-law, but out of a previous system of private revenge.

70 Roth, op. cit. p. 141.

An act of individual or family revenge is by itself, of course, an expression of private, not of public, feelings—of revenge, not of moral indignation. But the case is different with the custom of revenge. We shall see in a following chapter that blood-revenge is regarded not only as a right, but, very frequently, as a duty incumbent upon the relatives of the slain person. So, also, revenge may be deemed a duty in cases where there is no blood-guiltiness. Among the Australian Geawe-gal tribe, for instance, the offender, according to the magnitude of his offence, was to receive one or more spears from men who were relatives of the deceased person; or the injured man himself, when he had recovered strength, might discharge the spears at the offender. And our authority adds, “Obedience to such laws was never withheld, but would have been enforced, without doubt, if necessary, by the assembled tribe.”71 The obligatory character of revenge implies that its omission is disapproved of. It is of course the man on whom the duty of vengeance is incumbent that is the immediate object of blame, when this duty is omitted; and the blame may partly be due to contempt, especially when there is a suspicion of cowardice. But behind the public censure there is obviously a desire to see the injurer suffer. Instances may be quoted in which the society actually assists the avenger, in some way or other, in attaining his object. Speaking of the Fuegians, M. Hyades observes:—“Nous avons entendu parler d’individus coupables de meurtre sur leur femme, par exemple, et qui, poursuivis par tout un groupe de familles, finissaient, quelquefois un an ou deux après leur crime, par tomber sous les coups des parents de la victime. Il s’agit là plutôt d’un acte de justice que d’une satisfaction de vengeance. Nous devons faire remarquer en outre que, dans ces cas, le meurtrier est abandonné de tous, et qu’il ne peut se soustraire que pendant un temps 177relativement assez court au châtiment qui le menace.”72 Amongst the Central Eskimo, who have “no punishment for transgressors except the blood vengeance,” a man has committed a murder or made himself odious by other outrages, “he may be killed by any one simply as a matter of justice. The man who intends to take revenge on him must ask his countrymen singly if each agrees in the opinion that the offender is a bad man deserving death. If all answer in the affirmative he may kill the man thus condemned, and no one is allowed to revenge the murder.”73 Among the Greenlanders, in cases of extreme atrocity, the men of a village have been known to make common cause against a murderer, and kill him, though it otherwise is the business of the nearest relatives to take revenge.74 It is also noteworthy that, among the crimes which in savage communities are punished by the community at large, incest is particularly prominent. The chief reason for this I take to be the absence of an individual naturally designated as the avenger.

71 Fison and Howitt, op. cit. p. 282.

72 Hyades and Deniker, Mission scientifique du Cap Horn, vii. 240 sq.

73 Boas, ‘Central Eskimo,' in Ann. Rep. Bur. Ethn. vi. 582.

74 Nansen, Eskimo Life, p. 163.

Thus public indignation displays itself not only in punishment, but, to a certain extent, in the custom of revenge. In both cases the society desires that the offender shall suffer for his deed. Strictly speaking, the relationship between the custom of revenge and punishment is not, as has been often supposed, that between parent and child. It is a collateral relationship. They have a common ancestor, the feeling of public resentment.

But whilst public opinion demands that vengeance shall be exacted for injuries, it is also operative in another way. Though in some cases the resentment may seem to outsiders to be too weak or too much checked by other impulses, it may in other cases appear unduly great. As a matter of fact, we frequently find the practice of revenge being regulated by a rule which requires equivalence between the injury and the suffering inflicted in return for 178it. Sometimes this rule demands that only one life shall be taken for one;75 sometimes that a death shall be avenged on a person of the same rank, sex, or age as the deceased;76 sometimes that a murderer shall die in the same manner as his victim;77 sometimes that various kinds of injuries shall be retaliated by the infliction of similar injuries on the offender.78 This strict equivalence is not characteristic of resentment as such.79 There is undoubtedly a certain proportion between the pain-stimulus and the reaction; other things being equal, resentment increases in intensity along with the pain by which it is excited. The more a person feels offended, the greater is his desire to retaliate by inflicting counter-pain, and the greater is the pain which he desires to inflict. But resentment involves no accurate balancing of suffering against suffering, hence there may be a crying disproportion between the act of revenge and the injury evoking it.80 As Sir Thomas Browne observes, a revengeful mind “holds no rule in retaliations, requiring too often a head for a tooth, and the supreme revenge for trespasses, which a night’s rest should obliterate.”81 If, then, the rule of 179 equivalence is not suggested by resentment itself, this rule must be due to other factors, which intermingle with resentment, and help, with it, to determine the action. One of these factors, I believe, is self-regarding pride, the desire to pull down the humiliating arrogance of the aggressor naturally suggesting the idea of paying him back in his own coin; and it seems probable that the natural disposition to imitate, especially in cases of sudden anger, acts in the same direction. But besides this qualitative equivalence between injury and retaliation, the lex talionis requires, in a rough way, quantitative equivalence, and this demand has no doubt a social origin. If the offender is a person with whose feelings men are ready to sympathise, their sympathy will keep the desire to see him suffer within certain limits; and if, under ordinary circumstances, they tend to sympathise equally with both parties, the injurer and the person injured, and, in consequence, confer upon these equal rights, they will demand a retaliation which is only equal in degree to the offence. By suffering a loss the offender compensates, as it were, for the loss which he has inflicted; and when equal regard is paid to his feelings and to those of his victim, it is deemed just that the loss required of him as a compensation should be equivalent to the loss for which he compensates, anything beyond equivalence being regarded as undeserved suffering. If this explanation is correct, the rule of equivalence must originally have been restricted to offences within the social group; for, according to early custom and law, only members of the same society have equal rights. In speaking of the tit-for-tat system prevalent among the Guiana Indians, Sir E. F. Im Thurn expressly says, “Of course all this refers chiefly to the mutual relations of members of the same tribe.”82 And when we find savages acting according to the same principle in their relations to other tribes, the reason for this may be sought partly in the strong hold which that principle has taken of their minds, and partly in the dangers accompanying intertribal revenge, 180which make it desirable to restrict it within reasonable limits.

75 Krause, Tlinkit-Indianer, p. 245 sq. Macfie, Vancouver Island and British Columbia, p. 470. Foreman, Philippine Islands, p. 213 (Negrito and Igorrote tribes in the province of La Isabela). Low, Sarawak, p. 212 (Dyaks). von Langsdorf, Voyages and Travels, i. 132 (Nukahivans).

76 Jagor, Travels in the Philippines, p. 213 (Igorrotes). Blumentritt, quoted by Spencer, Principles of Ethics, i. 370 sq. (Quianganes of Luzon). Munzinger, Ostafrikanische Studien, p. 243 (Marea). Koran, ii. 173.

77 von Martius, op. cit. i. 129 (Brazilian Indians). Wallace, Travels on the Amazon, p. 499 (Uaupés). Schoolcraft, Indian Tribes of the United States, iii. 246 (Dacotahs). Steller, Kamtschatka, p. 355; Hickson, A Naturalist in North Celebes, p. 198 (Sangirese of Manganitu). Fraser, Journal of a Tour through Part of the Himālā Mountains, p. 339 (Butias). Ellis, History of Madagascar, i. 371. Munzinger, op. cit. p. 502 (Barea and Kunáma). de Abreu, Canary Islands, p. 27 (aborigines of Ferro).

78 Im Thurn, op. cit. p. 213 sq. (Guiana Indians). Glimpses of the Eastern Archipelago, p. 86 (Bataks). Arbousset and Daumas, Tour to the North-East of the Colony of Good Hope, p. 67 (Mantetis). Munzinger, op. cit. p. 502 (Barea and Kunáma). Post, Afrikanische Jurisprudenz, p. 27 (various other African peoples), de Abreu, op. cit. p. 71 (aborigines, of Gran Canaria).

79 Cf. Tissot, Le droit pénal, i. 226; Steinmetz, Ethnol. Studien zur ersten Entwicklung der Strafe, i. 401; Makarewicz, op. cit. p. 13.

80 von Martius, op. cit. i. 128 (Brazilian aborigines). Calder, in Jour. Anthr. Inst. iii. 21 (Tasmanians). Forbes, A Naturalist’s Wanderings in the Eastern Archipelago, p. 473 (Timorese). Sarasin, Forschungen auf Ceylon, iii. 539 (Veddahs). Jacob, Das Leben der vorislâmischen Beduinen, p. 144 sq.

81 Browne, Christian Morals, iii. 12, p. 94.

82 Im Thurn, op. cit. p. 214.

The regulations to which the practice of revenge is subject, help us to understand the transition from revenge to punishment, and the establishment of a special judicial authority. As long as retaliation is in the hands of private individuals, there is no guarantee, on the one hand, that the offender will have to suffer, on the other hand, that the act of retaliation will be sufficiently discriminate.

The injured party may be too weak, or otherwise unable, to avenge himself. His readiest course, then, is to appeal to the chief for help. The chief, on his part, has an interest in interfering—he may of course expect a handsome reward for his assistance,83—and, in so far as the community at large wishes that the offender shall suffer, the chief may even be bound to interfere. Thus in the Sandwich Islands, the family or the friends of an injured person—who in cases of assault or murder were by common consent justified in taking revenge—used to appeal to the chief of the district or to the king, when they were too weak to attack the offender themselves.84 Among the Wanyoro, according to Emin Pasha, should the murderer escape, the nearest relatives of the murdered man apply to the chief of the tribe to procure the punishment of the culprit.85 The Indians of Brazil, when offended, sometimes bring their cause before the chief; but they do it seldom, since they consider it disgraceful for a man not to be able to avenge himself.86 The judicial authority granted to the Basuto chief “also insures justice to foreigners, and to individuals who, having no relations, are deprived of their natural defenders and avengers.”87 In ancient Greece, in early times, special care was taken by the State for the protection of the weak and helpless, who otherwise had been unavenged.88 In the Middle Ages, the 181poor and the weak were placed under the King’s protection; the intervention of royal justice, as Du Boys observes, “apparaissait comme un bienfait pour les faibles et un secours pour les opprimés.”89

83 Steinmetz, Rechtsverhältnisse, p. 311. Cf. Brunner, Deutsche Rechtsgeschichte, i. 165.

84 Ellis, Tour through Hawaii, p. 429.

85 Emin Pasha in Central Africa, p. 86.

86 von Martius, op. cit. i. 132.

87 Casalis, op. cit. p. 226.

88 Leist, Græco-italische Rechtsgeschichte, p. 372.

89 Du Boys, Histoire du droit criminel de l’Espagne, p. 237.

Whilst resentment on behalf of injuries inflicted upon persons who are unable to avenge themselves has thus, to some extent, contributed towards the establishment of a central judicial and executive authority, the sympathy naturally felt for the object of an improper and immoderate revenge undoubtedly tended to bring about a similar result. The same feeling which checked indiscriminate revenge by establishing the rule of strict equivalence, restricted it once more, and in a more effective way, by referring the case to a judge who was less partial, and more discriminate, than the sufferer himself or his friends. Speaking of the feuds of the Teutons, Kemble remarks, “Setting aside the loss to the whole community which may arise from private feud, the moral sense of men may be shocked by its results: an individual’s own estimate of the satisfaction necessary to atone for the injury done to him, may lead to the commission of a wrong on his part, greater than any he hath suffered; nor can the strict rule of ‘an eye for an eye, and a tooth for a tooth,’ be applied where the exaction of the penalty depends upon the measure of force between appellant and defender.”90 In the Island of Bali the judge steps in between the prosecutor and the person whom he pursues, “so as to restrain the indiscriminate animosity of the one, and to determine the criminality of the other.”91 Crawfurd, in his account of native customs in the Malay Archipelago, says that “the law even expressly interdicts all interference when there appears a character of fairness in the quarrel.”92 A Karen, we are told, always thinks himself right in taking the law into his own hands, this being the custom of the country, and “he is never interfered with, unless he is guilty of some 182act contrary to Karen ideas of propriety, when the elders and the villagers interfere and exercise a check upon him.”93 Among the Basutos the authority of the chief is stated to be “sufficiently respected to protect criminated persons, until their cases have been lawfully examined.”94 Among the Californian Gallinomero the avenger of blood has his option between money and the murderer’s life; “but he does not seem to be allowed to wreak on him a personal and irresponsible vengeance,” the chief taking the criminal and executing the punishment.95

90 Kemble, Saxons in England, i. 268 sq.

91 Raffles, History of Java, ii. p. ccxxxvii.

92 Crawfurd, History of the Indian Archipelago, iii. 120.

93 Mason, in Jour. Asiatic Soc. Bengal, xxxvii. pt. li. 145. Cf. MacMahon, Far Cathay and Farther India, p. 188.

94 Casalis, op. cit. p. 226.

95 Powers, Tribes of California, p. 177.

Besides the desire that the offender shall suffer and the desire that his suffering shall correspond to his guilt, there is a third factor of importance which has contributed to the substitution of punishment for revenge and to the rise of a judicial organisation. For every society it is a matter of great consequence that there should be peace between its various members. Though the system of revenge helps to keep down crime,96 it also has a tendency to cause disturbance and destruction. Any act of vengeance which goes beyond the limits fixed by custom is apt to call forth retaliation in return. Among the Ossetes, says Baron von Haxthausen, “if the retaliation does not exceed the original injury the affair terminates; but if the wound given is greater than the one received, the feud begins afresh from the other side.”97 The custom of blood-revenge certainly does not imply that the avenger of unjustifiable homicide may himself be a proper object of retaliation;98 but in the absence of a tribunal it may be 183no easy thing to decide the question of guilt, and, besides, the dictate of custom may be overruled by passion. As a matter of fact, the blood-feud often consists of a whole series of murders, the revenge itself calling forth a new act of redress, and so on, until the state or hostility may become more or less permanent.99 In the long run this will prove injurious both to the families implicated in the feud and to society as a whole, and some method of putting a stop to the feud will readily be adopted. One such method is to substitute the payment of blood-money for revenge; another is to submit the cause to an authority invested with judicatory power. Casalis tells us that the Basutos are often heard to say, “If we were to revenge ourselves, the town or community would soon be dispersed”; and he adds that the instinctive fear of the disorders that might arise from the exercise of individual law has induced them to allow the chief of the tribe a certain right over the person of every member of the community.100

96 Taylor, Te Ika a Maui, p. 96 (Maori). Im Thurn, op. cit. pp. 213, 330 (Guiana Indians). Burckhardt, Bedouins and Wahábys, p. 84, sq.; Blunt, Bedouins of the Euphrates, ii. 207; Layard, Discoveries in the Ruins of Nineveh and Babylon, p. 305 sq. (Bedouins). Kohl, Reise nach Istrien, i. 409 sq. (Montenegrines). Stephen, History of the Criminal Law of England, i. 60 (Anglo-Saxons). Nordström, Svenska samhälls-författningens historia, ii. 228 (ancient Scandinavians). Steinmetz, Ethnol. Studien zur ersten Entwicklung der Strafe, ii. 125 sqq.

97 von Haxthausen, Transcaucasia, p. 411.

98 Among the aborigines of Western Victoria, when life has been taken for life, the feud is ended (Dawson, op. cit. p. 70). Among the Greenlanders, if the victim of revenge “be a notorious offender, or hated for his bloody deeds, or if he have no relations, the matter rests”; but more frequently the act of vengeance costs the avenger himself his life (Cranz, op. cit. i. 178). Among the Bedouins, “if the family of the man killed should in revenge kill two of the homicide’s family, the latter retaliate by the death of one. If one only be killed, the affair rests there and all is quiet; but the quarrel is soon revived by hatred and revenge” (Burckhardt, Bedouins and Wahábys, p. 86). In his book, Das Leben der vorislâmischen Beduinen, Dr. Jacob likewise observes (p. 144):—“Irrtümlich ist die Ansicht, dass Blut immer neues Blut fordere. Was für einen Getödteten ein Anderer erschlagen, so galt die Sache in der Regel damit für erledigt und abgetan.” Cf. Achelis, Moderne Völkerkunde, p. 407, n. 1.

99 Nelson, ‘Eskimo about Bering Strait,’ in Ann. Rep. Bur. Ethn. xviii. 293. Miklosich. ‘Blutrache bei den Slaven,’ in Denkschriften d. kaiserl. Akademie d. Wissensch. Phil.-hist. Classe, Vienna, xxxvi. 132; &c.

100 Casalis, op. cit. p. 225. Cf. Boyle, Adventures among the Dyaks of Borneo, p. 217; Marsden, op. cit. p. 249 sq. (Rejangs).

As may be expected, it is only by slow degrees that revenge has yielded to punishment, and the private avenger has been succeeded by the judge and the public executioner of his sentence. Among many savages the chief is said to have nothing whatever to do with jurisdiction.101 Among 184others he acts merely as an adviser, or is appealed to as an arbiter;102 or the injured party may choose between avenging himself and appealing to the chief for redress;103 or the judicial power with which the chief is invested is stated to be more nominal than real.104 It is also interesting to note that in several cases the injured party or the accuser acts as executioner, but not as judge.

101 Keating, Expedition to the Source of St. Peter’s River, i. 123 (Potawatomis). Richardson, Arctic Searching Expedition, ii. 27 (Chippewyans), Carver, Travels, p. 259 (Naudowessies). Dobrizhoffer, Account of the Abipones, ii. 163; &c.

102 Lewis and Clarke, Travels to the Source of the Missouri River, p. 306 sq. (Shoshones). Powers, Tribes of California, p. 45 (Karok and Yurok). Dunbar, ‘Pawnee Indians’ in Magazine of American History, iv. 261. Arbousset and Daumas, op. cit. p. 67 (Mantetis). Ellis, Yoruba-speaking Peoples of the Slave Coast, p. 300 (Tshi- and Ew̔e-speaking peoples of the African West Coast). Burckhardt, Bedouins and Wahábys, pp. 68, 70. Blunt, op. cit. ii. 232 sq. (Bedouins of the Euphrates). von Haxthausen, Transcaucasia, p. 415 (Ossetes).

103 Ellis, Tour through Hawaii, p. 429. Williams and Calvert, Fiji and the Fijians, p. 23. Forbes, A Naturalist’s Wanderings in the Eastern Archipelago, p. 473 (Timorese).

104 Falkner, Description of Patagonia, p. 123. Anderson, Lake Ngami, p. 231 (Damaras).

Thus among some Australian tribes, “a man accused of a serious offence gets a month’s citation to appear before the tribunal, on pain of death if he disobeys. If he is found guilty of a private wrong, he is painted white, and made to stand out at fifty paces in front of the accuser and his friends, all fully armed. They throw at him a shower of spears and ‘bumarangs,’ from which he protects himself with a light shield.”105 Among the Aricara Indians of the Missouri, who, for the most part, punish murder with death, the nearest relative of the murdered man was deputed by the council to act the part of executioner.106 With reference to the natives of Bali, Raffles says that “in the execution of the punishment awarded by the court there is this peculiarity, that the aggrieved party or his friends are appointed to inflict it.”107 In some parts of Afghanistan, “if the offended party complains to the Sirdar, or if he hears of a murder committed, he first endeavours to bring about a compromise, by offering the Khoon Behau, or price of blood; but if the injured party is inexorable, the Sirdar lays the affair before the King, who orders the Cauzy to try it; and, if the criminal is convicted, gives him up to be executed by the relations of the deceased.”108 Among the peoples round Lake Nyassa and Tanganyika and among the Bantu tribes generally, “when a murderer is caught and proved guilty he is given over 185to the relatives of the person murdered, who have power to dispose of him as they choose.”109 A similar practice prevails among the Mishmis,110 Bataks,111 and Kamchadales.112 It was also recognised by early Slavonic,113 Teutonic, and English codes.114 According to the provisions of a code granted so late as 1231, by the Abbey of St. Bertin to the town of Arques, when a man was convicted of intentional homicide, he was handed over to the family of the murdered person, to be slain by them.115

105 Fraser, Aborigines of New South Wales, p. 40 sq.

106 Bradbury, Travels in the Interior of America, p. 168.

107 Raffles, op. cit. ii. p. ccxxxvii.

108 Elphinstone, Kingdom of Caubul, ii. 105 sq.

109 Macdonald, in Jour. Anthr. Inst. xxii. 108.

110 Cooper, Mishmee Hills, p. 238.

111 von Brenner, op. cit. p. 212.

112 Georgi, Russia, iii. 137.

113 Macieiowski, Slavische Rechtsgeschichte, ii. 127.

114 Wilda, Strafrecht der Germanen, p. 167. Lex Salica, 68. Laws of Cnut, i. 53. Leges Henrici I. lxxi. 1.

115 Leges villæ de Arkes ab abbate S. Bertini concessæ, 28 (d’Achery, Spicilegium, iii. 608).

But although, in innumerable cases, punishment and judicial organisation have succeeded a previous system of revenge, and thus are products of social development, their existence or non-existence among a certain people is no exact index to the general state of culture which that people has attained. Even among low savages we have noticed instances of punishments which are inflicted by the community as a whole, as also by special judicial authorities. On the other hand, we are taught by the history of European and Oriental nations, that the system of revenge is not inconsistent with a comparatively high degree of culture.116 We can now see the reason for this apparent anomaly. In a small savage community, all the members of which are closely united with each other, an injury inflicted upon one is readily felt by all. The case may be different in a State consisting of loosely-connected social components, which, though forming a political unity, have little communication between themselves, and take no interest in each other’s private dealings. And, whilst in the smaller society public resentment is thus more easily aroused, such a society also stands in more urgent need of internal peace.

116 See infra, on Blood-revenge.

 

Our assumption that punishment is, in the main, an expression of public indignation, is opposed to another theory, according to which the chief object of punishment, not only ought to be, but actually is, or has been, 186to prevent crime by deterring people from committing it. We are even told that punishment, inflicted for such a purpose, is, largely, at the root of the moral consciousness; that punishment is not the result of a sense of justice, but that the sense of justice is a result of punishment; that, by being punished by the State, certain acts gradually came to be regarded as worthy of punishment, in other words, as morally wrong.117

117 Rée, Ursprung der moralischen Empfindungen, p. 45 sqq. Idem, Entstehung des Gewissens, p. 190 sqq.

There are certain facts which seem to support the supposition that punishment has, to a large extent, been intended to act as a deterrent. We find that among various semi-civilised and civilised peoples the criminal law has assumed a severity which far surpasses the rigour of the lex talionis.

Speaking of the Azteks, Mr. Bancroft observes that “the greater part of their code might, like Draco’s, have been written in blood—so severe were the penalties inflicted for crimes that were comparatively slight, and so brutal and bloody were the ways of carrying those punishments into execution.”118 The punishment of death was inflicted on the man who dressed himself like a woman, on the woman who dressed herself like a man,119 on tutors who did not give a good account of the estates of their pupils,120 on those who carried off, or changed, the boundaries placed in the fields by public authority;121 and should an adulterer endeavour to save himself by killing the injured husband, his fate was to be roasted alive before a slow fire, his body being basted with salt and water that death might not come to his relief too soon.122 Nor did the ancient Peruvian code economise human suffering by proportioning penalties to crimes; the punishment most commonly prescribed by it was death.123 The penal code of China, though less cruel in various respects than the European legislation of the eighteenth century, awards death for a third and aggravated theft, for defacing the branding inflicted for former offences,124 and for privately casting copper coin;125 whilst for the commission of the most heinous crimes 187the penalty is “to be cut into ten thousand pieces,” which appears to amount, at least, to a license to the executioner to aggravate and prolong the sufferings of the criminal by any species of cruelty he may think proper to inflict.126 In Japan, before the revolution of 1871, “the punishments for crime had been both rigorous and cruel; death was the usual punishment, and death accompanied by tortures was the penalty for aggravated crimes.127 According to the Mosaic law, death is inflicted for such offences as breach of the Lord’s day,128 going to wizards,129 eating the fat of a beast of sacrifice,130 eating blood,131 approaching unto a woman “as long as she is put apart for her uncleanness,”132 and various kinds of sexual offences.133 The laws of Manu provide capital punishment for those who forge royal edicts and corrupt royal ministers;134 for those who break into a royal store-house, an armoury, or a temple, and those who steal elephants, horses, or chariots;135 for thieves who are taken with the stolen goods and the implements of burglary;136 for cut-purses on the third conviction;137 whilst a wife, who, proud of the greatness of her relatives or her own excellence, violates the duty which she owes to her lord, shall be devoured by dogs in a place frequented by many, and the male offender shall be burnt on a red-hot iron bed.138

118 Bancroft, Native Races of the Pacific States, ii. 454.

119 Clavigero, History of Mexico, i. 358.

120 Ibid. i. 359.

121 Ibid. i. 355.

122 Bancroft, op. cit. ii. 465 sq.

123 Garcilasso de la Vega, First Part of the Royal Commentaries of the Yncas, i. 145, 151 sq.

124 Wells Williams, Middle Kingdom, i. 512.

125 Ta Tsing Leu Lee, sec. ccclix. p. 397.

126 Ibid. sec. ccliv. p. 269 n. †

127 Reed, Japan, i. 323. Thunberg, Travels, iv. 65.

128 Exodus, xxxi. 14.

129 Leviticus, xx. 6.

130 Ibid. vii. 25.

131 Ibid. vii. 27.

132 Ibid. xviii. 19.

133 Ibid. xviii. 6 sqq.

134 Laws of Manu, ix. 232.

135 Ibid. ix. 280.

136 Ibid. ix. 270.

137 Ibid. ix. 277.

138 Ibid. viii. 371 sq.

Increasing severity has been a characteristic of European legislation up to quite modern times. Towards the end of the thirteenth century, the English law knows some seven crimes which it treats as capital, namely, treason, homicide, arson, rape, robbery, burglary, and grand larceny; but the number of capital offences grew rapidly.139 From the Restoration to the death of George III.—a period of 160 years—no less than 187 such offences, wholly different in character and degree, were added to the criminal code; and when, in 1837, the punishment of death was removed from about 200 crimes, it was still left applicable to exactly the same offences as were capital at the end of the thirteenth century.140 Pocket-picking was punishable with death until the year 1808;141 horse-stealing, cattle-stealing, 188sheep-stealing, stealing from a dwelling-house, and forgery, until 1832;142 letter-stealing and sacrilege, until 1835;143 rape, until 1841;144 robbery with violence, arson of dwelling-houses, and sodomy, until 1861.145 And not only was human life recklessly sacrificed, but the mode of execution was often exceedingly cruel. In the beginning of the fifteenth century, the Peine forte et dure, or pressing to death with every aggravation of torture, was adopted as a manner of punishment suitable to cases where the accused refused to plead.146 Burning alive of female offenders still occurred in England at the end of the eighteenth century,147 being considered by the framers of the law as a commutation of the sentence of hanging required by decency.148 Still more cruel was the punishment inflicted on male traitors: they were first hanged by the neck and cut down before life was extinct, their entrails were taken out and burned before their face, then they were beheaded and quartered, and the quarters were set up in diverse places.149 This punishment continued to exist in England as late as in the reign of George III., and even then Sir Samuel Romilly, the great agitator against its continuance, brought upon himself the odium of the law officers of the Crown, who declared that he was “breaking down the bulwarks of the Constitution.”150 Such cruelties were not peculiar to the English. On the contrary, as Sir James Stephen observes, though English people, as a rule, have been singularly reckless about taking life, they have usually been averse to the infliction of death by torture.151 In various parts of the Continent we find such punishments as breaking on the wheel, quartering alive, and tearing with red-hot pincers, in use down to the end of the eighteenth century.

139 Pollock and Maitland, op. cit. ii. 511.

140 May, Constitutional History of England, ii. 595. Mackenzie, Studies in Roman Law, p. 424 sq.

141 Pike, History of Crime in England, ii. 450.

142 Ibid. ii. 451. Stephen, History of the Criminal Law of England, i. 474.

143 Pike, op. cit. ii. 451. Stephen, op. cit. i. 474.

144 Stephen, op. cit. i. 475.

145 Ibid. i. 475.

146 For the manner in which this torture was inflicted, see Andrews, Old-Time Punishments, p. 203 sq.

147 Ibid. p. 198. Stephen, op. cit. i. 477.

148 Andrews, op. cit. p. 192.

149 Holinshed, Chronicles of England, &c. i. 310. Thomas Smith, Commonwealth of England, p. 198.

150 Andrews, op. cit. p. 203. An earlier method of punishing traitors was boiling to death, which was adopted by Henry VIII. as a punishment for poisoners as well (Holinshed, op. cit. i. 311).

151 Stephen, op. cit. i. 478. Cf. Thomas Smith, op. cit. p. 193 sq.

It is interesting to compare these punishments with those practised among savages. Wanton cruelty is not a general characteristic of their public justice.

189Among several uncivilised peoples capital punishment is said to be unknown or almost so.152 Among others it is restricted to a few particularly atrocious offences. Among the Greenlanders “none are put to death but murderers, and such witches as are thought to have killed some one by their art.”153 The Aleuts punished with death murderers and betrayers of community secrets.154 In Samoa and New Guinea murder and adultery are punished capitally;155 among the Bataks, open robbery and murder, provided that the offender is unable to redeem his life by a sum of money;156 among the Kukis, only treason or an attempt at violence on the person of the King.157 Among the Mishmis, adultery committed against the consent of the husband is punished with death, but all other crimes, including murder, are punished by fines; however if the amount is not forthcoming the offender is cut up by the company assembled.158 In Kar Nicobar the only cause for a “death penalty” that Mr. Distant could discover was madness.159 Among the Soolimas “murder is the only crime punishable with death.”160 Among the Congo natives “the only capital crimes are stated to be those of poisoning and adultery.”161 Of the kingdom of Fida Bosman writes, “Here are very few capital crimes, which are only murthers, and committing adultery with the King’s or his great men’s wives.”;162 Among the Wanika two crimes are visited with capital punishment—murder and an improper use of sorcery;163 among the Wagogo164 and Washambala,165 witchcraft only. Among the Basutos every murderer is by law liable to death, but the sentence is generally commuted into confiscation; an incorrigible thief sometimes pays with his head, but is generally fined, whereas treason and rebellion against authority are treated with more severity.166 Among the Kafirs, cases of assault on the persons of wives of the chiefs, 190and what are deemed aggravated cases of witchcraft, are the only crimes which usually involve the punishment of death, very summarily inflicted; whereas this punishment seldom follows even murder, when committed without the supposed aid of supernatural powers.167

152 von Siebold, Ethnol. Studien über die Aino auf Yesso, p. 35; Batchelor, Ainu and their Folk-Lore, p. 284. Dalton, op. cit. p. 115 (Kakhyens). Marsden, op. cit. p. 248 (Rejangs of Sumatra). Riedel, De sluik- en kroesharige rassen tusschen Selebes en Papua, p. 103 (Serangese). Worcester, op. cit. pp. 413, 492 (Mangyans and Tagbanuas). Kubary, ‘Die Palau-Inseln,’ in Journal des Museum Godeffroy, iv. 42 (Pelew Islanders). de Abreu, op. cit. p. 152 (Canary Islanders). Frisch, Die Eingeborenen Süd-Afrika’s, p. 322 (Hottentots).

153 Cranz, op. cit. i. 177.

154 Petroff, loc. cit. p. 152.

155 Turner, Samoa, p. 178. Chalmers, Pioneering in New Guinea, p. 179.

156 Marsden, op. cit. p. 389.

157 Dalton, op. cit. p. 45. Stewart, in Jour. As. Soc. Bengal, xxiv. p. 627.

158 Griffith, ibid. vi. 332.

159 Distant, in Jour. Anthr. Inst. iii. 6.

160 Laing, Travels, p. 365.

161 Tucker, Expedition to Explore the River Zaire, p. 383.

162 Bosman, op. cit. p. 331.

163 New, op. cit. p. 111.

164 Beverley, in Steinmetz, Rechtsverhältnisse, p. 215.

165 Lang, ibid. p. 259.

166 Casalis, op. cit. p. 228.

167 Maclean, Compendium of Kafir Laws and Customs, p. 35 sq.

Nor, as it seems, is savage justice fond of torturing its victims before they are killed. The Maoris exclaimed loudly against the English method of executing criminals, first telling them that they are to die, then letting them lie for days and nights in prison, and finally leading them slowly to the gallows. “If a man commits a crime worthy of death,” they said, “we shoot him, or chop off his head; but we do not tell him first that we are going to do so.”168 Dr. Codrington gives the following description of the cases of burning persons alive which have occasionally happened in Pentecost Island:—“In fighting time there, if a great man were very angry with the hostile party, he would burn a wounded enemy. When peace had been made and the chiefs had ordered all to behave well that the country might settle down in quiet, if any one committed such a crime as would break up the peace, such as adultery, they would tie him to a tree, heap fire-wood round him, and burn him alive, a proof to the opposite party of their detestation of his wickedness. This was not done coolly as a matter of course in the execution of a law, but as a horrible thing to do, and done for the horror of it; a horror renewed in the voice and face of the native who told me of the roaring flames and shrieks of agony.”169 This story is not without interest when compared with the cold-blooded burning of female criminals and women suspected of witchcraft in Christian Europe.

168 Yate, Account of New Zealand, p. 105.

169 Codrington, op. cit. p. 347.

There is sufficient evidence to show that the severe punishments adopted by peoples of a higher culture have been regarded by them as beneficial to society. The legislators themselves often refer to the deterrent effects of punishment.

The Peruvian Incas considered that light punishments gave confidence to evil-doers, whilst “through their great care in punishing a man’s first delinquency, they avoided the effects of his second and third, and of the host of others that are committed in every commonwealth where no diligence is observed 191to root up the evil plant at the commencement.”170 According to the Prefatory Edict of the Emperor Kaung-hee, published in 1679, the chief ends proposed by the institution of punishments in the Chinese Empire “have been to guard against violence and injury, to repress inordinate desires, and to secure the peace and tranquillity of an honest and unoffending community.”171 In the Laws of Manu punishment is described as a protector of all creatures:—“If the king did not, without tiring, inflict punishment on those worthy to be punished, the stronger would roast the weaker, like fish on a spit; the crow would eat the sacrificial cake and the dog would lick the sacrificial viands, and ownership would not remain with any one, the lower ones would usurp the place of the higher ones. The whole world is kept in order by punishment, for a guiltless man is hard to find; through fear of punishment the whole world yields the enjoyments which it owes.”172 Even the gods, the Dânavas, the Gandharvas, the Râkshasas, the bird and snake deities, give the enjoyments due from them only if they are tormented by the fear of punishment.173 In mediæval law-books determent is frequently referred to as an object of punishment.174 And in more modern times, till the end of the eighteenth century at least, the idea that punishment should inspire fear was ever present to the minds of legislators.

170 Garcilasso de la Vega, op. cit. i. 151 sq.

171 Ta Tsing Leu Lee, p. lxvii.

172 Laws of Manu, vii. 14, 15, 20-22, 24 sq.

173 Ibid. vii. 23.

174 Leges Burgundionum, Leges Gundebati, 52: “Rectius enim paucorum condempnatione multitudo corregitur, quam sub specie incongruae civilitatis intromittatur occasio, quae licentiam tribuat delinquendi.” Capitulare Aquisgranense An. 802, 33: “Sed taliter hoc corripiantur, ut caeteri metum habeant talia perpetrandi” (Migne, Patrologiæ cursus, xcvii. 230). Chlotar II. Edictum de Synodo Parisiensi, 24: “In ipsum capitali sententia judicetur, qualiter alii non debeant similia perpetrare” (Migne, op. cit. lxxx. 454). For other instances, see Brunner, Deutsche Rechtsgeschichte, ii. 588, n. 6.

The same idea is also conspicuous in the practice of punishing criminals in public.175 A petty thief in the pillory and a scold on the cucking-stool were, in earlier times, spectacles familiar to everybody, whilst persons still living remember seeing offenders publicly whipped in the streets. “A gallows or tree with a man hanging upon it,” says Mr. Wright, “was so frequent an object in the country that it seems to have been almost a natural ornament of a landscape, and it is thus introduced by no 192means uncommonly in mediæval manuscripts.”176 In atrocious cases it was usual for the court to direct the murderer, after execution, to be hung upon a gibbet in chains near the place where the fact was committed, “with the intention of thereby deterring others from capital offences”; and in order that the body might all the longer serve this useful purpose, it was saturated with tar before it was hung in chains.177 The popularity which mutilation as a punishment enjoyed during the Middle Ages was largely due to the opinion, that “a malefactor miserably living was a more striking example of justice than one put to death at once.”178

175 Günther, Die Idee der Wiedervergeltung, i. 211 sq. n. 31.

176 Wright, History of Domestic Manners and Sentiments in England during the Middle Ages, p. 346.

177 Holinshed, op. cit. i. 311. Blackstone, Commentaries on the Laws of England, iv. 201. Cox, ‘Hanging in Chains,’ in The Antiquary, xxii. 213 sq.

178 Strutt, View of the Manners, &c. of the Inhabitants of England, ii. 8.

We shall now consider whether these facts really contradict our thesis that punishment is essentially an expression of public indignation.

It may, first, be noticed that the punishment actually inflicted on the criminal is in many cases much less severe than the punishment with which the law threatens him. In China the execution of the law is, on the whole, lenient in comparison with its literal and prima facie interpretation.179 “Many of the laws seem designed to operate chiefly in terrorem, and the penalty is placed higher than the punishment really intended to be inflicted, to the end that the Emperor may have scope for mercy, or, as he says, ‘for leniency beyond the bounds of the law.’”180 In Europe, during the Middle Ages, malefactors frequently received charters of pardon, and in later times it became a favourite theory that it was good policy, in framing penal statutes, to make as many offences as possible capital, and to leave to the Crown to relax the severity of the law. In England, about the beginning of the nineteenth century, the punishment of death was actually inflicted in only a small proportion of the cases in 193which sentence was passed; indeed, “not one in twenty of the sentences was carried into execution.”181 This discrepancy between law and practice bears witness, not only to the extent to which the minds of legislators were swayed by the idea of inspiring fear, but to the limitation of determent as a penal principle. It has been observed that the excessive severity of laws hinders their execution. “Society revolted against barbarities which the law prescribed. Men wronged by crimes, shrank from the shedding of blood, and forbore to prosecute: juries forgot their oaths and acquitted prisoners, against evidence: judges recommended the guilty to mercy.”182 Yet, in spite of all such deductions, there can be no doubt that the hangman had plenty to do. Hanging persons, says Mr. Andrews, was almost a daily occurrence in the earlier years of the nineteenth century, “for forging notes, passing forged notes, and other crimes which we now almost regard with indifference.”183

179 Staunton, in his Preface to Ta Tsing Leu Lee, p. xxvii. sq.

180 Wells Williams, op. cit. i. 392 sq.

181 Stephen, op. cit. i. 471. May, op. cit. ii. 597.

182 May, op. cit. ii. 597.

183 Andrews, op. cit. p. 218. Cf. Olivecrona, Om dödsstraffet, p. x.

Another circumstance worth mentioning is, that in earlier times the detection of criminals was much rarer and more uncertain than it is now.184 It has been argued on utilitarian grounds that, “to enable the value of the punishment to outweigh that of the profit of the offence, it must be increased, in point of magnitude, in proportion as it falls short in point of certainty.”185 But the rareness of detection would also for purely emotional reasons tend to increase the severity of the punishment. When one criminal out of ten or twenty is caught, the accumulated indignation of the public turns against him, and he becomes a scapegoat for all the rest.

184 Cf. Morrison, Crime and its Causes, p. 175.

185 Bentham, Principles of Morals and Legislation, p. 184. Cf. Paley, Moral and Political Philosophy, vi. 9 (Complete Works, ii. 371).

However, the chief explanation of the great severity of certain criminal codes lies in their connection with despotism or religion or both.186 An act which is prohibited194 by law may be punished, not only on account of its intrinsic character, but for the very reason that it is illegal. When the law is, from the outset, an expression of popular feelings, the severity of the penalty with which it threatens the transgressor depends, in the first place, on the public indignation evoked by the act itself, independently of the legal prohibition of it. But the case is different with laws established by despotic rulers or ascribed to divine lawgivers. Such laws have a tendency to treat criminals not only as offenders against the individuals whom they injure or against society at large, but as rebels against their sovereign or their god. Their disobedience to the will of the mighty legislator incurs, or is supposed to incur, his anger, and is, in consequence, severely resented. But however severe they be, the punishments inflicted by the despot on disobedient subjects are not regarded as mere outbursts of personal anger. In the archaic State the king is an object of profound regard, and even of religious veneration. He is looked upon as a sacred being, and his decrees as the embodiment of divine justice. The transgression of any law he makes is, therefore, apt to evoke a feeling of public indignation proportionate to the punishment which he pleases to inflict on the transgressor. Again, as to acts which are supposed to arouse the anger of invisible powers, the people are anxious to punish them with the utmost severity so as to prevent the divine wrath from turning against the community itself. But the fear which, in such cases, lies at the bottom of the punishment, is certainly combined with genuine indignation against the offender, both because he rebels against God and religion, and because he thereby exposes the whole community to supernatural dangers.

186 This has been previously pointed out by Prof. Durkheim, in his interesting essay, ‘Deux lois de l’évolution pénale’ (L’année sociologique, iv. [1899–1900], p. 64 sqq.), with which I became acquainted only when the present chapter was already in type. Montesquieu observes (De l’esprit des lois, vi. 9 [Œuvres, p. 231]), “Il serait aisé de prouver que, dans tous ou presque tous les États d’Europe, les peines ont diminué ou augmenté à mesure qu’on s’est plus approché ou plus éloigné de la liberté.”

195Various facts might be quoted in support of this explanation. Whilst the punishments practised among the lower races generally, are not conspicuous for their severity, there are exceptions to this rule among peoples who are governed by despotic rulers.

Under the Ashanti code, even the most trivial offences are punishable with death.187 In Madagascar, also, “death was formerly inflicted for almost every offence.”188 In Uganda the ordinary punishments were “death by fire, being hacked to pieces by reed splinters, fine, imprisonment in the stocks mvuba, or in the slave fork kaligo, also mutilation. It is most common to see people deprived of an eye, or in some cases of both eyes; persons lacking their ears are also frequently met with.”189 Among the Wassukuma, whose chieftains used to have power of life and death over their subjects, a person who was guilty of disobedience to his ruler, or of some action which the ruler considered wicked and punishable, was condemned to death.190 In the Sandwich Islands, “a chief takes the life of one of his own people for any offence he may commit, and no one thinks he has a right to interfere.”191

187 Ellis, Tshi-speaking Peoples of the Gold Coast, p. 166.

188 Ellis, History of Madagascar, i. 374.

189 Ashe, Two Kings of Uganda, p. 293. Cf. Wilson and Felkin, Uganda and the Egyptian Soudan, i. 201.

190 Kollmann, Victoria Nyanza, p. 431.

191 Ellis, Tour through Hawaii, p. 431.

In the old monarchies of America and Asia there was an obvious connection between the punishments prescribed by their laws and the religious-autocratic form of their governments. According to Garcilasso de la Vega, the Peruvians—among whom the most common punishment was death—maintained “that a culprit was not punished for the delinquencies he had committed, but for having broken the commandment of the Ynca, who was respected as God,” and that, viewed in this light, the slightest offence merited to be punished with death.192 In China the Emperor was regarded as the vicegerent of Heaven especially chosen to govern all nations, and was supreme in everything, holding at once the highest legislative and executive powers, without limit or control.193 According 196to ancient Japanese ideas, “the duty of a good Japanese consists in obeying the Mikado, without questioning whether his commands are right or wrong. The Mikado is god and vicar of all the gods, hence government and religion are the same.”194 In Rome the criminal law, which for a long time was characterised by great moderation,195 gradually grew more severe according as absolutism made progress. Sylla, the dictator, not only put thousands of citizens to death by proscription without any form of trial, but fixed, in the Cornelian criminal code, for heinous offences the punishment called aquæ et ignis interdictio. Under the Emperors some new and cruel capital punishments were introduced, such as burning alive and exposing to wild beasts; whilst at the same time offences such as driving away horses or cattle were made capital.196 In mediæval and modern Europe the increase of the royal power was accompanied by increasing severity of the penal codes. Every crime came to be regarded as a crime against the King. Indeed, breach of the King’s peace became the foundation of the whole Criminal Law of England; the right of pardon, for instance, as a prerogative of the Crown, took its origin in the fact that the King was supposed to be injured by a crime, and could therefore waive his remedy.197 And the King was not only regarded as the fountain of social justice, but as the earthly representative of the heavenly lawgiver and judge.198

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

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

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

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

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

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

198 Henke, 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.199 The great severity with which certain197 infractions 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.200 Among the western tribes of Torres Straits, “death was the penalty for infringing the rules connected with the initiation period i.e., for sacrilege.”201 Among 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.”202 Among 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.”203 The penalty of death which is frequently imposed on incest or other sexual offences is largely due to the influence of religious or superstitious beliefs.204 And in various cases of sacrilege the offender is offered up as a sacrifice to the resentful god.205

199 Steinmetz, Ethnol. Studien zur ersten Entwicklung der Strafe, ii. 340 sq. The connection between punishment and religion has been emphasised by Prof. Durkheim (Division du travail social, p. 97 sqq.) and M. Mauss (‘La religion et les origines du droit pénal,’ in Revue 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.”

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

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

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

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

204 See infra, on Sexual Morality.

205 See infra, on Human 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.206 These ideas were adopted by the Christian Church and by Christian governments.207 The principle 198stated 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,”208 was 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

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

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

208 Laws of Cnut, ii. 40.

209 Montesquieu, 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 the lex 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 and 199to 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.”210 Experience 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.”

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

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 reference200 to 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.211 According 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.212 But 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—213 which, as we have seen, so frequently regulates the custom of revenge?

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

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

213 On 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 refinement 201is 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.

 

 

 

 

CHAPTER VIII

THE GENERAL NATURE OF THE SUBJECTS OF ENLIGHTENED MORAL JUDGMENTS

 

THE subjects 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,”1 sometimes as acts that are not only adjusted to ends, but definitely willed.2 The latter definition is too 203narrow 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.”

1 Spencer, Principles of Ethics, i. 5.

2 E.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.”3 But 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.

3 Bentham, 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, 204and it is not in our power to discard these forms of speech.”4 I regard the so-called consequences of acts, in so far as they are intended, as acts by themselves, or as parts of acts.

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

The very expression “outward act” implies that acts also have an inner aspect. Intention, says Butler, “is part of the action itself.”5 By 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.6 But 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.”7 In 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 other 205persons. Professor Sidgwick maintains that it would be thought absurd to say that, in such a case, the nihilist “did not intend” to kill them;8 but 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.

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

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

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

8 Sidgwick, 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.9 Even 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.”10 The 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 the doing of harm and the doing of good, the moral consciousness would never 206have 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 event plus the 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.

9 Sidgwick, op. cit. p. 201.

10 Stuart 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 that 207tends one way, whilst my desire tends another, and that the direct contrary way.”11 Yet 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.

11 Locke, 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.12 The 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. 233 sq.) “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 wishes 208nor 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;13 but 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,”14 has drawn a distinction209 between 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”;15 but 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.

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

14 Stuart Mill, Utilitarianism, p. 26.

15 Ibid. 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.”16 Yet it is hardly correct to call them acts. Bentham’s division of acts into acts of commission210 and acts of omission or forbearance17 is 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.18 But 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.

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

17 Bentham, op. cit. p. 72.

18 Cf. 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.”19 Now 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.”20 In the latter case, of course, the man cannot be condemned for his omission, since he cannot be blamed for not doing what 211he “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.

19 Austin, op. cit. i. 438.

20 Alexander, Moral Order and Progress, p. 34 sq. 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. 105 sqq.) 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.21 In 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.22 Negligence, heedlessness, and rashness, are all included under the common term “carelessness.”

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

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

Our moral judgments of blame, however, are concerned with not-willing only in so far as this not-willing is attributed to a defect of the will, not to the influence of intellectual or other circumstances for which no man can be held responsible. That power in a person which we call his “will” is regarded by us as a cause, not only of 212such events as are intended, but of such events as we think that the person “could” have prevented by his will. And just as, in the case of volitions, the guilt of the party is affected by the pressure of non-voluntary motives, so in the case of carelessness mental facts falling outside the sphere of the will must be closely considered by the conscientious judge. But nothing is harder than to apply this rule in practice.

Equally difficult is it, in many cases, to decide whether a person’s behaviour is due to want of advertence, or is combined with a knowledge of what his behaviour implies, or of the consequences which may result from it—to decide whether it is due to carelessness, or to something worse than carelessness. For him who refrains from performing an obligatory act, though adverting to it, “negligent” is certainly too mild an epithet, and he who knows that mischief will probably result from his deed is certainly worse than heedless. Yet even in such cases the immediate object of blame may be the absence of a volition—not a want of attention, but a not-willing to do, or a not-willing to refrain from doing, an act in spite of advertence to what the act implies or to its consequences. I may abstain from performing an obligatory act though I think of it, and yet, at the same time, make no resolution not to perform it. So, too, if a man is ruining his family by his drunkenness, he may be aware that he is doing so, and yet he may do it without any volition to that effect. In these cases the moral blame refers neither to negligence or heedlessness, nor to any definite volition, but to disregard of one’s duty or of the interests of one’s family. At the same time, the transition from conscious omissions into forbearances, and the transition from not-willing to refrain from doing into willing to do, are easy and natural; hence the distinction between willing and not-willing may be of little or no significance from an ethical point of view. For this reason such consequences of an act as are foreseen as certain or probable have commonly been included under the term “intention,”23213 often as a special branch of intention—“oblique,” or “indirect,” or “virtual” intention;24 but, as was already noticed, this terminology is hardly appropriate. I shall call such consequences of an act as are foreseen by the agent, and such incidents as are known by him to be involved in his act, “the known concomitants” of the act. When the nihilist blows up the train containing an emperor and others, with a view to killing the emperor, the extreme danger to which he exposes the others is a known concomitant of his act. So, also, in most crimes, the breach of law, as distinct from the act intended, is a known concomitant of the act, inasmuch as the criminal, though aware that his act is illegal, does not perform it for the purpose of violating the law. As Bacon said, “no man doth a wrong for the wrong’s sake, but thereby to purchase himself profit, or pleasure, or honour, or the like.”25

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

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

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

Absence of volitions, like volitions themselves, give rise not only to moral blame, but to moral praise. We may, for instance, applaud a person for abstaining from doing a thing, beneficial to himself but harmful to others, which, in similar circumstances, would have proved too great a temptation to any ordinary man; and it does not necessarily lessen his merit if the opposite alternative did not even occur to his mind, and his abstinence, therefore could not possibly be ascribed to a volition. Very frequently moral praise refers to known concomitants of acts rather than to the acts themselves. The merit of saving another person’s life at the risk of losing one’s own, really lies in the fact that the knowledge of the danger did not prevent the saver from performing his act; and the merit of the charitable man really depends on the loss which he inflicts upon himself by giving his property to the needy. In these and analogous cases of self-sacrifice for a good end, the merit, strictly speaking, consists in not-willing to 214avoid a known concomitant of a beneficial act. But there are instances, though much less frequent, in which moral praise is bestowed on a person for not-willing to avoid a known concomitant which is itself beneficial. Thus it may on certain conditions be magnanimous of a person not to refrain from doing a thing, though he knows that his deed will benefit somebody who has injured him, and towards whom the average man in similar circumstances would display resentment.

All these various elements into which the subjects of moral judgments may be resolved, are included in the term “conduct.” By a man’s conduct in a certain case is understood a volition, or the absence of a volition in him—which is often, but not always or necessarily, expressed in an act, forbearance, or omission—viewed with reference to all such circumstances as may influence its moral character. In order to form an accurate idea of these circumstances, it is necessary to consider not only the case itself, but the man’s character, if by character is understood a person’s will regarded as a continuous entity.26 The subject of a moral judgment is, strictly speaking, a person’s will conceived as the cause either of volitions or of the absence of volitions; and, since a man’s will or character is a continuity, it is necessary that any judgment passed upon him in a particular case, should take notice of his will as a whole, his character. We impute a person’s acts to him only in so far as we regard them as a result or manifestation of his character, as directly or indirectly due to his will. Hume observes:—“Actions are, by their very nature, temporary and perishing; and where they proceed not from some cause in the character and disposition of the person who performed them, they can neither redound to his honour, if good; nor infamy, if evil…. The person is not answerable for them; and as they proceeded 215from nothing in him, that is durable and constant, and leave nothing of that nature behind them, it is impossible he can, upon their account, become the object of punishment or vengeance.”27 There is thus an intimate connection between character and conduct as subjects of moral valuation. When judging of a man’s conduct in a special instance, we judge of his character, and when judging of his character, we judge of his conduct in general.

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

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

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

As for opinions and beliefs, it may be said that they involve responsibility in so far as they are supposed to 216depend on the will. Generally it is not so much the opinion itself but rather the expression, or the outward consequence, of it that calls forth moral indignation; and in any case the blame, strictly speaking, refers either to such acts, or to the cause of the opinion within the will. That a certain belief, or “unbelief,” is never as such a proper object of censure is recognised both by Catholic and Protestant theology. Thomas Aquinas points out that the sin of unbelief consists in “contrary opposition to the faith, whereby one stands out against the hearing of the faith, or even despises faith,” and that, though such unbelief itself is in the intellect, the cause of it is in the will. And he adds that in those who have heard nothing of the faith, unbelief has not the character of a sin, “but rather of a penalty, inasmuch as such ignorance of divine things is a consequence of the sin of our first parent.”28 Dr. Wardlaw likewise observes:—“The Bible condemns no man for not knowing what he never heard of, or for not believing what he could not know…. Ignorance is criminal only when it arises from wilful inattention, or from aversion of heart to truth. Unbelief involves guilt, when it is the effect and manifestation of the same aversion—of a want of will to that which is right and good.”29 To shut one’s eyes to truth may be a heinous wrong, but nobody is blamable for seeing nothing with his eyes shut.

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

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

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

 

 

 

 

CHAPTER IX

THE WILL AS THE SUBJECT OF MORAL JUDGMENT AND THE INFLUENCE OF EXTERNAL EVENTS

 

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

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

Von Martius states that, among the Arawaks, “the blood-revenge is so blind and is practised so extensively, that many times an accidental death leads to the destruction of whole families, both the family of him who killed and of the family of the victim”;1 and, according to Sir E. F. Im Thurn, the smallest injury done by one Guiana Indian to another, even if unintentional, must be atoned by the suffering of a similar injury.2 Adair, in his work on the North American Indians, says that they pursued the law of retaliation with such a fixed eagerness, that formerly if a little boy shooting birds in the high and thick cornfields unfortunately chanced slightly to wound another with his childish arrow, “the young vindictive fox was excited by custom to watch his ways with the utmost earnestness, till the wound was returned in as equal a manner 218as could be expected.”3 Among the Ondonga in South Africa,4 the Nissan Islanders in the Bismarck Archipelago,5 and certain Marshall Islanders,6 the custom of blood-revenge makes no distinction between wilful and accidental homicide. Among the Kasias “destruction of human life, whether by accident or design, in open war or secret, is always the cause of feud among the relations of the parties.”7 It seems that the blood-revenge of the early Greeks was equally indiscriminate.8 As for the blood-feuds of the ancient Teutons, Wilda maintains that, even in prehistoric times, it was hardly conformable to good custom to kill the involuntary manslayer;9 but there is every reason to believe that custom made no protest against it. According to the myth of Balder, accident was no excuse for shedding blood. Loke gives to Hödur the mistletoe twig, and asks him to do like the rest of the gods, and show Balder honour, by shooting at him with the twig. Hödur throws the mistletoe at Balder, and kills him, not knowing its power. According to our notions, blind Hödur is perfectly innocent of his brother’s death; yet the avenger, Vali, by the usual Germanic vow, neither washes nor combs his hair till he has killed Hödur. It is also instructive to note that the narrator of this story finds himself called upon to explain, and, in a manner, to excuse the Asas for not punishing Hödur at once, the place where they were assembled being a sacred place.10 We find survivals of a similar view in laws of a comparatively recent date. The earliest of the Norman customals declares quite plainly that the man who kills his lord by misadventure must die.11 And, according to a passage in ‘Leges Henrici I.,’ in case A by mischance falls from a tree upon B and kills him, then, if B’s kinsman must needs have vengeance, he may climb a tree and fall upon A.12 This provision has been justly represented as a curious instance of a growing appreciation of moral differences, which has not dared to abolish, but has tried to circumvent the ancient rule.13

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

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

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

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

5 Sorge, ibid. p. 418.

6 Kohler, in Zeitschr. f. vergl. Rechtswiss. xiv. 443. See also Idem, Shakespeare vor dem Forum der Jurisprudenz, p. 188.

7 Fisher, in Jour. Asiatic Soc. Bengal, ix. 835.

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

9 Wilda, Strafrecht der Germanen, p. 174.

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

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

12 Leges Henrici I. xc. 7.

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

219Among the Kandhs “similar compensation is made in all cases both of excusable homicide and of manslaughter.”14 And the same is said to be the case among various other savages or barbarians.15

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

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

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

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

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

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

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

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

Yet it would obviously be a mistake to suppose that, at early stages of civilisation, people generally look only at the harm done, and not in the least at the will of him who did it. Even in the system of private redress we often 220find a distinction made between intentional or foreseen injuries on the one hand, and unintentional and unforeseen injuries on the other. In many instances, whilst blood-revenge is taken for voluntary homicide, compensation is accepted for accidental infliction of death.20 And sometimes the chief or the State interferes on behalf of the involuntary manslayer, protecting him from the persecutions of the dead man’s family.

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

Among the African Wapokomo intention makes a difference in the revenge.21 Among the Papuans of the Tami Islands blood-revenge is common in the case of murder, but is not exacted in the case of accidental homicide; the involuntary manslayer has only to pay a compensation and to leave the community for a certain length of time.22 Among the Namaqua Hottentots custom demands that compensation should be accepted for unintentional killing.23 We meet with the same principle among the Albanians24 and the Slavs,25 in the past history of other European peoples,26 in ancient Yucatan,27 and in the religious law of Muhammedanism.28 Among the Kabyles of Algeria, “si les mœurs n’autorisent jamais la famille victime d’un homicide volontaire à amnistier un crime, elles lui permettent presque toujours de pardonner la mort qui ne résulte que d’une maladresse ou d’un accident.” They have a special ceremony by which the family of the deceased grant pardon to the involuntary manslayer, but the pardon must be given unanimously. The manslayer then becomes a member of the kharuba, or gens, of the deceased.29 Among the Omahas, “when one man killed another accidentally, he was rescued by the interposition of the chiefs, and subsequently was punished as if he were a murderer, but only for a year or two.”30 The 221ancient law of the Hebrews, which recognised the right and duty of private revenge in cases of intentional homicide, laid down special rules for homicide by misfortune. He who killed another unawares and unwittingly might flee to a city of refuge, where he was protected against the avenger of blood as long as he remained there.31 In ancient Rome the involuntary manslayer seems to have been exposed to the blood-feud until a law attributed to Numa ordained that he should atone for the deed by providing a ram to be sacrificed in his place.32

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

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

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

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

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

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

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

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

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

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

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

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

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

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

According to Bowdich, “a person accidentally killing another in Ahanta, pays 5 oz. of gold to the family, and defrays the burial customs. In the case of murder, it is 20 oz. of gold and a slave; or, he and his family become the slaves of the family of the deceased.”34 Ancient Irish law imposed an Eric fine for accidental or unintentional homicide, to be paid to the relatives of the dead man, whilst a double fine was due for homicide where anger was shown, i.e., where probably there was what we should call “malice.”35

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

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

In the punishments inflicted by many savages, a similar distinction is made between intentional and accidental harm, although, at the same time, some degree of guilt is frequently imputed to persons who, in our opinion, are perfectly innocent.

Speaking of the West Australian aborigines, Sir G. Grey observes:—“If a native is slain by another wilfully, they kill the murderer, or any of his friends they can lay hands on. If a native kills another accidentally, he is punished according to the circumstances of the case.” And the punishment may be severe enough. “For instance, if, in inflicting spear wounds as a punishment for some offence, one of the agents should spear the culprit through the thigh, and accidentally so injure the 222femoral artery that he dies, the man who did so would have to submit to be speared through both thighs himself.”36 In New Guinea, according to Dr. Chalmers, murder is punished capitally, whereas a death caused by accident is expiated by a fine.37 Among the Mpongwe, “except in the case of a chief or a very rich man, little or no difference is made between wilful murder, justifiable homicide, and accidental manslaughter.”38 Kafir law seems to demand no compensation for what is clearly proved to have been a strictly accidental injury to property, but the case is different in regard to accidental injuries to persons, if the injury be of a serious nature. Thus “it seems to make little or no distinction between wilful murder and any other kind of homicide; unless it be, perhaps, that in purely accidental homicide the full amount of the fine may not be so rigidly insisted upon.”39 Among the A-lūr, in the case of accidental injuries, a compensation is paid to the injured party and a fine to the chief. Whilst the strict punishment for murder is death, the culprit is allowed to redeem himself if it cannot be proved that he committed the deed wilfully.40 The Masai regard accidental homicide, or injury, as “the will of N’gai,” “the Unknown,” and “the elders arrange what compensation shall be paid to the injured person (if a male) or to the nearest relative. If a woman is killed by accident, all the killer’s property becomes the property of the nearest relative.”41 The Eastern Central Africans, according to the Rev. D. Macdonald, “know the difference between an injury of accident and one of intention.”42 And so do the natives of Nossi-Bé and Mayotte, near Madagascar.43

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

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

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

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

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

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

42 Macdonald, Africana, i. 11.

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

Nay, there are instances of uncivilised peoples who entirely excuse, or do not punish, a person for an injury which he has inflicted by mere accident, even though they may compel him to pay damages for involuntary destruction of property.

We are told that the Pennsylvania Indians “judge with calmness on all occasions, and decide with precision, or endeavour223 to do so, between an accident and a wilful act; the first, they say, they are all liable to commit, and therefore it ought not to be noticed, or punished; the second being a wilful or premeditated act, committed with a bad design, ought on the contrary to receive due punishment,”44 Among some of the Marshall Islanders unintentional wrongs are punished only if the injured party be a person of note, for instance, a chief, or a member of a chief’s family.45 Among the Papuans of the Tami Islands, “accidental injuries are not punished. Generally the culprit confesses his deed, and makes an apology. If he has caused the destruction of some valuable, he has to repair the loss.”46 Among the Wadshagga there is no punishment for an accidental hurt; but if anybody’s property has been damaged thereby, a compensation amounting to one half of the damage may be required.47 The Hottentots do not nowadays punish accidents, even in the case of homicide.48 Among the Washambala a person is held responsible only for such injuries as he has inflicted intentionally or caused by carelessness.49 In some parts of West Africa, if a man, woman, or child, not knowing what he or she does, damages the property of another person, “native justice requires, and contains in itself, that if it can be proved the act was committed in ignorance that was not a culpable ignorance, the doer cannot be punished according to the law.”50

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

45 Kohler, in Zeitschr. f. vergl. Rechtswiss. xiv. 448.

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

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

48 Kohler, ibid. xv. 353.

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

50 Miss Kingsley, in her Introduction to Dennett’s Notes 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.”51 But there are exceptions to this rule. Any 224person 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 3,000 lee. 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.”52 Again, slaves who accidentally kill their masters, “shall suffer death, by being strangled at the usual period.”53 It 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

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

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

53 Ibid. sec. cccxiv. p. 338.

54 Ibid. 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

55 Laws of Ḫammurabi, 206 sqq.

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.56 If 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

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

57 Numbers, xxxv. 26 sqq.

According to the Laws of Manu, “he who damages the 225goods of another, be it intentionally or unintentionally, shall give satisfaction to the owner and pay to the king a fine equal to the damage”;58 and various rites of expiation are prescribed for a person who kills a Brâhmana by accident,59 whereas the intentional slaying of a Brâhmana is inexpiable.60

58 Laws of Manu, viii. 288.

59 Ibid. xi. 73 sqq.

60 Ibid. 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.61 As 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.62 Nor 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,”63 seem to have been equally discriminate in early times.64 In 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

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

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

63 Digesta, xlviii. 8. 14.

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

65 Mommsen, op. cit. p. 85.

226The 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.,’66 no doubt translating an old English proverb.67 In historic times, the law, distinguishing between vili and vadhi, 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 by wíte, as well as wer, the involuntary manslayer has to pay wer to the family of the dead, but no wíte to the authorities.68 Yet the wer to be paid was not merely compensation for the loss sustained, as Wilda, misled by his enthusiasm for Teutonic law, has erroneously assumed;69 it was punishment as well.70 And the character of criminality attached to accidental homicide survived the system of wer. 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,71 and in France still more recently.72 And 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

66 Leges Henrici I. xc. 11.

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

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

69 Wilda, op. cit. p. 578.

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

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

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

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

If men at the earlier stages of civilisation generally 227attach 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.74 Miss 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.”75 The 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

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

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

76 Frazer, 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.”77 According 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 distance228 of 2000 lee.”78 In these cases the punishment inflicted by human hands is obviously a reflection of the supposed anger of superhuman beings.

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

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

The Shintoist prays for forgiveness of errors which he has committed unknowingly.79 According 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.80 Forgiveness is besought of Varuna for sins that have been committed in unconsciousness;81 even sleep occasions sin.82 The 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.”84 Among 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

79 Selenka, Sonnige Welten, p. 210 sq.

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

81 Rig-Veda, v. 85. 8.

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

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

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

85 Rájendralála 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

86 Farnell, op. cit. i. 72.

The Babylonian psalmist, assuming that one of the 229gods 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.”87 In 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

87 Zimmern, Babylonische Busspsalmen, p. 63.

88 Sayce, 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.”89 Unintentional 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.90 Whilst 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.91 Speaking 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, a ḥaṭṭāth [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.”92 The Rabbis also maintained that a false oath, even if made unconsciously, involves man in sin, and is punished as such.93 230We meet with a similar opinion in mediæval Christianity. The principle laid down by St. Augustine,94 and adopted by Canon Law,95 that “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.96 In 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,97 according to various continental penitentials, for five98 or seven99 years; 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,100 and he who accidentally killed his son with a penance of twelve.101 The 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-called aureola.102 In 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 of 231unintentional incendiary;103 and even to this day the Russian criminal law prescribes penitence for homicide by misadventure, “in order to quiet the conscience of the culprit.”104 According 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

89 Psalms, xix. 12.

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

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

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

93 Montefiore, op. cit. p. 558.

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

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

96 Pœnitentiale 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).

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

98 Pœnit. 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).

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

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

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

102 Göpfert, Moraltheologie, i. 185.

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

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

105 Koran, 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, obtaining 232the consent of the relatives of the deceased, he is authorised by law to purchase his pardon.”106 According to ancient Swedish law, an injury could not be treated as accidental unless the injured party acknowledged it as such.107 In 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.108 Indeed, so recently as 1741, a royal order was made for a hanging in chains “on the petition of the relations of the deceased.”109 And 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

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

107 von Amira, Nordgermanische Obligationenrecht, i. 382.

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

109 Amos, Ruins of Time, p. 23.

110 Kenny, 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.”111 We 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.

111 Macdonald, in Jour. Anthr. Inst. xii. 108.

But the dead man’s ghost not only persecutes his own family if neglectful of their duty, it also attacks the manslayer233 and 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 following chapter. 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 is taboo in 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.”112 So, also, according to primitive notions, the effect of a curse or an 234oath 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.

112 Jevons, Introduction to the History of Religion, p. 91.

Thus it may be that, in the point which we are discussing, as in various other respects, the religious beliefs of a people do not faithfully represent their general notions of moral responsibility. It is profoundly wrong to assume, from the legend of Oedipus and other similar cases, that the ancient Greeks, in general, held a person “equally responsible for an accident which occurs to him, and for an act of which the agent is aware.” Even the transgression of a sacred law, when committed in ignorance, seems to have excited pitiful horror rather than moral indignation. Oedipus had killed his father in self-defence, and married his mother, perfectly ignorant of his relation to them. The gods punished the Thebans with pestilence for harbouring such a wretch on their soil. But when “time that sees all, found him out in his unwitting sin,” it was not blame, but terror and deep compassion for the unhappy man that, according to the tragedian,113 spoke from the lips of the people. Moreover, in the latter tragedy Oedipus persistently vindicates his innocence:—“Whatever I have done was done unwittingly”—“Before the law I have no guilt.” And, addressing himself to Creon, who has accused him of parricide and incest, he 235exclaims:—“O shameless soul, where, thinkest thou, falls this thy taunt,—on my age, or on thine own? Bloodshed—incest—misery—all this thy lips have launched against me,—all this that I have borne, woe is me! by no choice of mine: for such was the pleasure of the gods, wroth, haply, with the race from of old… Tell me, now,—if, by voice of oracle, some divine doom was coming on my sire, that he should die by a son’s hand, how couldst thou justly reproach me therewith, who was then unborn, whom no sire had yet begotten, no mother’s womb conceived? And if, when born to woe—as I was born—I met my sire in strife, and slew him, all ignorant what I was doing, and to whom,—how couldst thou justly blame the unknowing deed?114 Never was a more pathetic appeal made to the court of Justice from the indiscriminate verdict of angry gods.

113 Sophocles, Œdipus Tyrannus.

114 Idem, Œdipus Coloneus, 960 sqq. (Jebb’s translation, p. 155).

Whilst the grossest want of discrimination may thus be explained from revengeful feelings and superstitious beliefs, there still remain a multitude of cases which must be regarded as genuine expressions of moral indignation. As to these, it should, first, be remembered that even the reflecting moral consciousness may hold a person blamable for the unintentional and unforeseen infliction of an injury, namely, in cases where it assumes want of proper foresight. Now, as we know, it is often difficult enough to discern whether, or to what extent, an unintended injury is due to carelessness on the part of the agent; sometimes even it is no easy thing to tell whether an injury was intended or not. It is not to be expected, then, that distinctions of so subtle a nature should be properly made by the uncultured mind, and least of all is it to be expected that such distinctions should be embodied in early custom and law, which are based on average cases and allow of no minute individualisation. It has been observed that the roughness of Teutonic justice may be partly explained from the difficulty in getting any proof of intention or of its absence, from the lack of any proper distinctions between 236misadventure and carelessness, and from the fact that the so-called misadventures of early times covered many a blameworthy act.115 And all this holds good not merely of the ancient Teutons. It may further be said that the more defective the power of discrimination, the greater is the tendency to presume guilt. In Morocco a man who runs away after killing another is presumed to have committed the deed intentionally, however innocent he really may be. Among the Teutons the presumption was always against the manslayer; he had to proclaim what he had done, and to prove that the deed was not intended116—unless, indeed, the misadventure belonged to a certain type of injuries which by their very nature entailed no guilt. For instance, if a man carried a spear level on his shoulder and another ran upon the point, he was free from blame; whereas, if harm ensued by pure accident from a distinct act, the agent was liable.117 As von Amira remarks, the Swedish notion of vadhaværk was not a merely negative conception, but implied that there was danger connected with the act.118

115 Pollock and Maitland, op. cit. i. 55; ii. 475, 483. von Amira, Nordgermanisches Obligationenrecht, i. 377 sq.

116 Wilda, op. cit. i. 345. Brunner, Forschungen, p. 500 sq. Pollock and Maitland, op. cit. ii. 471.

117 Wilda, op. cit. p. 584. Trummer, op. cit. i. 427. Brunner, Forschungen, p. 499 sq. von Amira, ‘Recht,’ in Paul’s Grundriss der germanischen Philologie, ii. pt. ii. 172. Pollock and Maitland, op. cit. i. 53 sq.

118 von Amira, Nordgermanisches Obligationenrecht, i. 377.

Where the distinction between guilt and innocence is difficult to draw, it may be wise policy to presume guilt. According to Sir R. Burton, the Mpongwe jurists say that little or no difference is generally made between wilful murder and accidental manslaughter in order that people should be more careful;119 and a similar idea may lie at the bottom of the Dahoman law which punishes capitally any person whose house takes fire, even if it happens accidentally.120 But the presumption of guilt is not only, nor in the first place, owing to considerations of social utility, combined with a reckless indifference to undeserved suffering.237 The unreflecting mind is shocked by the harm done, and cares little for the rest. It does not press the question whether the harm was caused by the agent’s will or not. It does not make any serious attempt to separate the external event from the will, and it is inclined to assume that there is a coincidence between the two. This is not altogether bad psychology since, as a rule, men will what they do. “Le fait juge l’homme,” says an old French proverb; and in morals, also, “the tree is known by the fruit.” However, there are cases of injuries in which not even uncivilised men can fail to discover, at once, the absence of any evil intention. This certainly does not mean that the injurer escapes all censure. Every feeling of pain, sympathetic pain included, which is caused by a living being, has a certain tendency to give rise to an aggressive impulse towards its cause; hence savages, even though they distinguish between intentional and unintentional harm, are inclined to impute some degree of guilt to any person who involuntarily commits a forbidden deed, though he be in reality quite innocent. But the reason for this is only want of due reflection. If it is clearly understood that a certain event is the result of merely external circumstances, that it was neither intended by the agent nor could have been foreseen by him, in other words, that it in no way was caused by his will—then there could be no moral indignation at all. It would be simply absurd to suppose that an outward event as such, assumed to be absolutely unconnected with any defect of will, could ever give rise to moral blame. Such an event could not even call forth a feeling of revenge. Sudden anger itself cools down when it appears that the cause of the inflicted pain was a mere accident. Even a dog, as has been observed, distinguishes between being stumbled over and being kicked.

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

120 Ellis, Ew̔e-speaking Peoples of the Slave Coast, p. 224.

That the indiscriminate attitude of early custom and law towards accidental injuries does not imply any difference in principle between the enlightened and unenlightened moral consciousness as regards the subject of moral valuation, 238becomes perfectly obvious when we consider what a great influence the outward event exercises upon moral estimates even among ourselves. “The world judges by the event, and not by the design,” says Adam Smith. “Everybody agrees to the general maxim, that as the event does not depend on the agent, it ought to have no influence upon our sentiments, with regard to the merit or propriety of his conduct. But when we come to particulars, we find that our sentiments are scarce in any one instance exactly conformable to what this equitable maxim would direct.”121 Even in the criminal laws of civilised nations chance still plays a prominent part. According to the present law of England, though a person is not criminally liable for the involuntary and unforeseen consequences of acts which are themselves permissible, the case is different if he commits an act which is wrong and criminal,122 or, as it seems, even if he commits an act which is wrong without being forbidden by law.123 Thus death caused unintentionally is regarded as murder, if it takes place within a year and a day124 as the result of an unlawful act which amounts to a felony.125 For instance, a person kills another accidentally by shooting at a domestic fowl with intent to steal it, and he will probably be convicted of murder.126 Again, a near-sighted man drives at a rapid rate, sitting at the bottom of his cart, and thereby causes the death of a foot-passenger; he is guilty of manslaughter.127 A man recklessly and wantonly throws a lighted match into a haystack, careless whether it take fire or not, and so burns down the stack; his crime is arson. But if he did not intend to throw the lighted match on the haystack, he would probably not be guilty of any offence at all, “unless death was caused, in which case he would be guilty of manslaughter.”128 Even if the unintended death is to some 239extent owing to the negligence of the injured party himself, it may be laid to the charge of the injurer. This at all events was the law in Hale’s time, “If a man,” he says, “receives a wound, which is not in itself mortal, but either for want of helpful applications, or neglect thereof, it turns to a gangrene, or a fever, and that gangrene or fever be the immediate cause of his death, yet, this is murder or manslaughter in him that gave the stroke or wound.”129 So far as I know, the severity of the English law on unintentional homicide—which, in fact, is a survival of ancient Teutonic law130—is without a parallel in the European legislation of the present day. Both the French131 and the German132 laws are much less severe; and so is the Ottoman Penal Code,133 and Muhammedan law in general.134 Yet the unintended deadly consequence of a criminal act always affects the punishment more or less.

121 Adam Smith, Theory of Moral Sentiments, p. 152.

122 According to Harris (Principles of the Criminal Law, p. 156), the act should be a malum in se, not merely a malum quia prohibitum.

123 Kenny, op. cit. p. 41.

124 Stephen, History of the Criminal Law of England, iii. 8.

125 Ibid. iii. 22.

126 Ibid. iii. 83.

127 Harris, op. cit. p. 157.

128 Stephen, op. cit. ii. 113.

129 Hale, History of the Pleas of the Crown, i. 428.

130 Lex Wisigothorum, vi. 5. 6: “Si dum quis calce, vel pugno, aut quacumque percussione injuriam conatur inferre, homicidii extiterit occasio, pro homicidio puniatur.”

131 Code Pénal, art. 309.

132 Strafgesetzbuch, art. 226.

133 Ottoman Penal Code, art. 177. Cf. ibid. art. 174.

134 Sachau, op. cit. p. 761 sq.

I presume that nobody after due deliberation would maintain that the moral guilt of the offender is enhanced by the death of him whom he involuntarily happened to kill. Sir James Stephen, nevertheless, makes an attempt to defend, from a moral point of view, the severe English law on the subject, which he thinks “is much to be preferred to the law of France.” He asks, “Is there anything to choose morally between the man who violently stabs another in the chest with the definite intention of killing him, and a man who stabs another in the chest with no definite intention at all as to the victim’s life or death, but with a feeling of indifference whether he lives or dies?”135 Perhaps not. But I venture to maintain that there is a considerable moral difference between the man who shoots at another with the definite intention of killing him, and the man who, firing at another’s chickens, with the intention of stealing them, accidentally kills the owner whom 240he does not see. It will perhaps be argued that the law has a utilitarian purpose, its object being to make people more careful. But if this were the case one would expect that the law should punish with equal severity acts which involve the same degree of danger, and which result in similar injuries. To fire at a sparrow may be as dangerous to people’s lives as to fire at another person’s chicken, and, in the latter case, the danger is hardly increased by the intention to steal the chicken. I take the truth to be this. The degree of punishment corresponds to the degree of indignation aroused by the deed. Public imagination is shocked by the actual event. The agent, being guilty either of criminal intention, or of gross disregard of other people’s interests, or of criminal heedlessness, is a proper object of punishment. Owing to that want of discrimination which characterises the popular mind, his guilt is exaggerated on account of the grave consequences of his act; and the result is that he is punished not only for the fault of his will, but for his bad luck as well. Sir James Stephen seems to admit this, when saying that the shock which the offence gives to the public feeling requires that the offender should himself suffer “a full equivalent for what he has inflicted,” from which “he ought to be excused only on grounds capable of being understood by the commonest and most vulgar minds.”136 Though thoroughly dissenting from the opinion that criminal law should try to gratify the feelings of “the commonest and most vulgar minds,” I think that, as a matter of fact, it is not much above their standard of justice, being in the main an expression of public sentiments.

135 Stephen, op. cit. iii. 91 sq.

136 Ibid. iii. 91.

 

In the cases which we have hitherto considered the external event which a person brings about involuntarily, either makes him liable to punishment though he really is free from guilt, or increases his punishment beyond the limits of his guilt. But the influence of chance also shows 241itself in the opposite way. A person who is guilty of carelessness generally escapes all punishment if no injurious result follows, and an unsuccessful attempt to commit a criminal act, if punished at all, is, as a rule, punished much less severely than the accomplished act.

The Hottentots nowadays punish attempt, but only leniently.137 The Wadshagga punish it less severely than the accomplished act.138 Among some of the Marshall Islanders it is not punished at all.139 The same holds good of the Ossetes140 and Swanetians141 of the Caucasus, as also of ancient Russian law.142 The Teutons, as a general rule, had no punishment for him who tried to do harm, but failed; and if they did punish an unsuccessful attempt, the penalty was out of proportion lenient.143 This feature of ancient Teutonic law has had a lasting effect upon European legislation, largely through the influence it exercised upon the Italian jurists of the Middle Ages,144 whose theories laid the foundation of modern laws and doctrines on attempt. In conformity with the Roman law, they held attempts to commit crimes to be punishable, and in atrocious cases they even admitted that the attempt might be subject to the same punishment as the accomplished crime. But their general theory was that it should be punished less severely, and that the penalty should be lenient in proportion as the actual deed was remote from the act intended.145 These views were generally adopted by the later legislation. Among present European lawbooks, the French Code Pénal146 is almost the only one that punishes an attempt 242with the same severity as the finished crime.147 And the French law on the subject is of modern origin; before the year IV. the present rule was applied only to the conatus proximus in a few specified cases of a very heinous character.148

137 Kohler, in Zeitschr. f. vergl. Rechtswiss. xv. 353.

138 Merker, quoted by Kohler, ibid. xv. 63.

139 Kohler, ibid. xiv. 418.

140 Kovalewsky, Coutume contemporaine, p. 296 sq.

141 Dareste, Nouvelles études d’histoire du droit, p. 237.

142 Kovalewsky, op. cit. pp. 291, 299.

143 Wilda, op. cit. p. 598 sqq. Zachariä, Die Lehre vom Versuche der Verbrechen, i. 164 sqq.; ii. 130 sq. Brunner, Deutsche Rechtsgeschichte, ii. 558 sqq. Pollock and Maitland, ii. 475, 509.

144 Seeger, Versuch der Verbrechen in der Wissenschaft des Mittelalters, p. 8.

145 Zachariä, op. cit. i. 169; ii. 141. von Feuerbach-Mittermaier, Lehrbuch des Peinlichen Rechts, p. 74.

146 Code Pénal, art. 2: “Toute tentative de crime qui aura été manifestée par un commencement d’exécution, si elle n’a été suspendue ou si elle n’a manqué son effet que par des circonstances indépendantes de la volonté de son auteur, est considérée comme le crime même.”

147 Chauveau and Hélie, Théorie du Code Pénal, i. 347 sq.

148 Ibid. i. 337 sq.

Besides the provision of the Code Pénal concerning attempt, there are a few other exceptions, of an earlier date, to the general rule. The Romans seemed to have followed the principle “dolus pro facto accipitur,”149 at least if the crime attempted was a serious one.150 A somewhat similar line was adopted by ancient Irish law. The general impression produced by the rules in the commentary to the Book of Aicill is, that the attempt to commit an injurious act was treated as equivalent to its commission, unless the result was very insignificant. Thus, if an attempt was made to slay, or to inflict an injury which would endure for life, and blood was shed, the fine was the same as if the attempt had succeeded; whereas, if the injury did not amount to the shedding of blood, the fine was reduced one-half.151 And if a man went to kill one person and killed another by mistake, a fine for the intention, in addition to the fine due to the friends of the murdered man, was due to him whose death was intended, even though no injury was actually done to him.152 In England, at the end of the Middle Ages, the will was taken for the deed in cases of obvious attempts to murder; but this rule appears to have been considered too severe—even in an age when death was the common punishment for felony—and to have fallen into disuse several centuries ago.153

149 Digesta, xlviii. 8. 7.

150 Seeger, Versuch der Verbrechen nach römischcm Recht, pp. 1, 2, 49. Idem, Versuch der Verbrechen in der Wissenschaft des Mittelalters, p. 9. Mommsen, Römisches Strafrecht, p. 97 sq. Apuleius, Florida, iv. 20:—“In maleficiis etiam cogitata scelera non perfecta adhuc vindicantur, cruenta mente, pura manu. Ergo sicut ad poenam sufficit meditari punienda.”

151 Ancient Laws of Ireland, iii. pp. cviii. sq. 139.

152 Cherry, Growth of Criminal Law in Ancient Communities, p. 32.

153 Stephen, op. cit. ii. 222 sq. Thomas Smith, Common-wealth of England, p. 194 sq.

243The question, which attempts should be punished, and even the elementary question, what constitutes an attempt, have been answered differently by different jurists and legislators.154 In England all attempts whatever to commit indictable offences, whether felonies or misdemeanours, are punishable by law.155 The French156 and German157 codes, on the other hand, do not punish, except in a few particular cases, attempts to commit délits or Verbrechen, that is, what the English jurists would describe as misdemeanours.

154 See Cohn, Zur Lehre vom versuchten und unvollendeten Verbrechen, i. 6 sqq.

155 Stephen, op. cit. ii. 224.

156 Code Pénal art. 3.

157 Strafgesetzbuch, art. 43.

Again, should a person be punished for attempting to commit a crime in a manner in which success is physically impossible, as if he attempts to steal from a pocket which is empty, or puts into a cup pounded sugar which he believes to be arsenic? This question has given rise to a whole literature. Seneca’s statement that “he who mixes a sleeping draught, believing it to be poison, is a poisoner,”158 seems to have had the support of Roman law.159 In England, some time ago, the man who attempted to pick an empty pocket, was not held liable for an attempt to steal;160 but this case has been overruled, and it appears now to be the law that an indictment would lie for such an attempt.161 According to the French162 and Italian163 codes, it would not be punished, according to some German law-books, it would;164 whilst the Strafgesetzbuch contains no special provisions for attempts of a similar character.

158 Seneca, De beneficiis, v. 13. Cf. Idem, Ad Serenum, 7.

159 Seeger, Versuch nach römischem Recht, p. 30.

160 Stephen, op. cit. ii. 225.

161 Harris, Principles of the Criminal Law, p. 209 n. c.

162 Stephen, op. cit. ii. 225.

163 Alimena, in Le droit criminel des états européens, ed. by von Liszt, p. 123.

164 von Feuerbach-Mittermaier, op. cit. p. 76. Cohn, op. cit. i. 14.

Finally there are different rules as to the stage at which an attempt begins to be criminal, or as to the distinction between attempts and acts of preparation. The Romans, it is supposed, drew no such distinction.165 The French law regards as permissible acts of preparation many 244things which in England would be punished as attempts.166 In England lighting a match with intent to set fire to a haystack has been held to amount to a criminal attempt to burn it, although the defendant blew out the match on seeing that he was watched. But it was said in the same case that, if he had gone no further than to buy a box of matches for the purpose, he would not have been liable, the act being too remote from the offence to be criminal.167 “Liability will not begin until the offender has done some act which not only manifests his mens rea but also goes some way towards carrying it out.”168

165 Seeger, Versuch nach römischem Recht, p. 49.

166 Chauveau and Hélie, op. cit. i. 357 sqq. Stephen, op. cit. ii. 226.

167 Holmes, Common Law. p. 67 sq.

168 Kenny, op. cit. p. 79.

If we go a step further, we come to designs unaccompanied by any attempt whatever to realise them. The laws of all countries agree as to the principle that an outward event is requisite for the infliction of punishment. “Cogitationis pœnam nemo patitur.”169

169 Digesta, xlviii. 19. 18.

This fact again illustrates the influence which external deeds exercise upon the moral feelings of men. In the average man moral emotions are hardly ever called into existence by calm and penetrating reflection. There are certain phenomena which for some reason or other are apt to arouse in him such emotions, but he does not seek for them. They must force themselves upon his mind, and the more vigorously they do so, the stronger are the emotions they excite. Nothing makes a greater impression on him than facts which are perceptible by the senses. He will admit that an intention, or even a mere wish, to do something wrong is wrong by itself, but an outward event is generally needed for shaking him up. This, I think, is the original reason why persons have not been punished for intentions unaccompanied by external deeds. No doubt, the principle that “the thought of man shall not be tried,” is strongly supported by the fact that, as a mediæval writer puts it, “the devil himself knoweth not the thought of man.”170 But considering how ready people 245have been to presume guilt in cases of unintentional injuries, it seems very incredible that they originally refrained from punishing bare intentions merely on account of insufficient evidence. Indeed, as an exception to the rule, in a few cases when the crime designed is regarded with extreme horror, the very intention may give such a shock to public imagination as to call for punishment.

170 Quoted by Pollock and Maitland, op. cit. ii. 474.

According to Chinese law, “any person convicted of a design to kill his or her father or mother, grandfather or grandmother, whether by the father’s or mother’s side; and any woman convicted of a design to kill her husband, husband’s father or mother, grandfather or grandmother, shall, whether a blow is, or is not struck in consequence, suffer death by being beheaded.”171 This exceptional law obviously owes its origin to the extreme reverence in which parents and ancestors are held by the Chinese, and to the wife’s subjection to her husband. In mediæval laws referring to heresy we have another instance of punishment being inflicted for a mere state of mind without any corresponding act. According to Julius Clarus, this exception to the rule is due to the fact that the crime of heresy itself consists in “sola mentis cogitatione.”172 But the real reason why the law in this case troubled itself about men’s thoughts, and even allowed them to be put on their trial for their tacit opinions on bare suspicion, is the detestation in which heresy was held and the extreme attention it attracted. By all this, of course, I do not mean to deny that a judicious and enlightened legislator may find other grounds for taking no notice of mere intentions than their inability to arouse public indignation. I only speak of matters of fact.

171 Ta Tsing Leu Lee, sec. cclxxxiv. p. 305.

172 Julius Clarus, Practica Criminalis, qu. 91 (Opera omnia, ii. 625).

Again, as regards acts of preparation and many cases of unsuccessful attempts, it may be said that the agent perhaps would have altered his mind before he came to the point, or that the failure of his attempt was possibly due 246to a change of intention in the last moment.173 But there are innumerable cases in which the attempt, with no less certainty than the accomplished crime, displays a criminal intention which is final. And it is particularly instructive to note that, among the very peoples who treat unintentional injuries with the greatest severity, unsuccessful attempts are treated with the greatest leniency. This is well illustrated by a comparison between Teutonic and Roman law; in either case the former chiefly looks at the event, the latter chiefly at the intention of the agent. If there is no punishment for a bare attempt to commit a crime, that is because such an attempt makes no impression on the public. If an attempt is punished more heavily according as it is more advanced, that is because it calls forth greater indignation in proportion as it comes near to the crime intended. And if even the conatus proximus is punished with less severity than the accomplished crime, that is because the indignation it evokes is less. This explanation is corroborated by concessions made by theorisers who have in vain endeavoured to find more rational grounds for existing laws on attempt. They have ultimately found it necessary to resort to phrases such as “the natural sense of justice,” or to appeal to the feelings of the multitude.174 247M. Rossi observes, “Nous pensons que le sens commun et la conscience publique ont constamment tenu le même langage. ‘Le délit n’a pas été consommé, donc la punition doit être moindre.’ Cette idée de proportion matérielle, ce sentiment de justice, grossière j’en conviens, est naturel à l’homme.”175 This is the view taken by the unreflecting moral consciousness. To him whose feelings are tempered by thought, “a man,” as Seneca says, “is no less a brigand, because his sword becomes entangled in his victim’s clothes, and misses its mark.”176

173 As a rule, the man who voluntarily desists from the attempt to commit a crime would not be punished at all (see Seeger, Versuch nach römischem Recht, p. 50; Charles V.’s Peinliche Gerichts Ordnung, art. 178; the French Code Pénal, art. 2; the Italian Codice Penale, art. 61; Finger, Compendium des österreichischen Rechtes—Strafrecht, i. 181; and, for various German laws, Zachariä, op. cit. ii. 311 sq., and Cohn, op. cit. i. 12 sq.), or he would be punished more leniently than if there had been no such desistance (Zachariä, ii. 239, sqq. Cohn, i. 12 sq.). On this subject see also Herzog, Rücktritt vom Versuch und Thätige Reue, passim.

174 Lelièvre, De conatu delinquendi, p. 361 (quoted by Zachariä, op. cit. ii. 66, n. 2): “Ceterum libenter fateor, me potius sentire aliquam necessitatem paululum levius in perfectum crimen ac in maleficium consummatum animadvertendi, quam reddere posse claram necessitates rationem.” Abegg, Die verschiedenen Strafrechtstheorieen, p. 65: “Für uns folgt aber jene nothwendige Beobachtung der concreten Unterschiede, in dem Gebiete der Erscheinung, nach der aus dem Gerechtigkeitsprincipe abgeleiteten Regel, dass Jeder für seine That, und was er verdient habe, leiden solle.” Zachariä, op. cit. ii. 51:—“So macht sich in dem natürlichen Gerechtigkeits-Gefühl des Einzelnen und des ganzen Volkes auch von selbst die Unterscheidung zwischen der Strafe des vollendeten und der des blos versuchten Verbrechens geltend…. Es kann freilich seyn, dass der grösste Theil der Menschen für ein solches natürliches Gefühl keine Gründe anzugeben vermag; allein das Strafrecht, welches ja gerade auf die grosse Menge zu wirken hat, kann dessenungeachtet solche unwillkürlich im Volke sich geltend machende Ansichten nicht unberücksichtigt lassen.” Cf. also Finger, op. cit. i. 177.

175 Rossi, Traité de droit pénal, ii, 318.

176 Seneca, Ad Serenum, 7.

 

In the same way as moral indignation, is moral approval influenced by external events. Though we would not praise a person for some deed of his which we clearly recognise to reflect no merit on his will, the benefits which result from a good act easily induce us to exaggerate the goodness of the agent. On the other hand, it is success alone that confers upon a man the full reward which he deserves; good intentions without corresponding deeds meet with little applause even when the failure is due to mere misfortune. “In our real feeling or sentiment,” Hume observes, “we cannot help paying a greater regard to one whose station, joined to virtue, renders him really useful to society, than to one who exerts the social virtues only in good intentions and benevolent affections.”

 

It is thus only from want of due reflection that moral judgments are influenced by outward deeds. Owing to its very nature, the moral consciousness, when sufficiently influenced by thought, regards the will as the only proper object of moral disapproval or moral praise. That moral qualities are internal, is not an invention of any particular moralist or any particular religion; it has been recognised by thoughtful men in many different countries and different 248ages. “He that is pure in heart is the truest priest,” said Buddha.177 In the Taouist work, ‘Kan ying peen,’ it is written:—“If you form in your heart a good intention, although you may not have done any good, the good spirits follow you. If you form in your heart a bad intention, although you may not have done any harm, the evil spirits follow you.”178 According to the Thâi-Shang, mere wishes are sufficient to constitute badness.179 One of the Pahlavi texts puts the following words into the mouth of the Spirit of Wisdom:—“To be grateful in the world, and to wish happiness for every one; this is greater and better than every good work.”180 God, says the Koran, “will not catch you up for a casual word in your oaths, but He will catch you up for what your hearts have earned.”181 According to the Rabbis, the thought of sin is worse than sin, and an unchaste thought is a “wicked thing.”182 It was an ancient Mexican maxim that “he who looks too curiously on a woman commits adultery with his eyes”183—a striking parallel to the passage in St. Matthew v. 28. “Voluntas remuneratur, non opus,” says the Canonist. “Licet gladio non occidat, voluntate tamen interficit.” “Non ideo minus delinquit, cui sola deest facultas.”184

177 Hopkins, Religions of India, p. 319.

178 Douglas, Confucianism and Taouism, p. 270.

179 Thâi-Shang, 4.

180 Dînâ-î-Maînôgî Khirad, lxiii. 3 sqq. Cf. ibid. i. 10, where it is said that the good work which a man does unwittingly is little of a good work, though the sin which a man commits unwittingly amounts to a sin in its origin.

181 Koran, ii. 225. Cf. Ameer Ali, Ethics of Islâm, p. 26.

182 Schechter, in Montefiore, op. cit. p. 558. Cf. Deutsch, Literary Remains, p. 52.

183 Sahagun, Historia general de las cosas de Nueva España, vi. 22, vol. ii. 147: “Dice el refran que el que curiosamente mira á la muger adultéra con la vista.”

184 Gratian, Decretum, ii. 33. 3. 25, 30, 29.

 

 

 

 

CHAPTER X

AGENTS UNDER INTELLECTUAL DISABILITY

 

WE hold an agent responsible not only for his intention, but for any known concomitant of his act, as also for any such unknown concomitant of it as we attribute to want of due attention. But for anything which he could not be aware of he is not responsible. Hence certain classes of agents—animals, children, idiots, madmen—are totally or partially exempted from moral blame and legal punishment.

Though animals are undoubtedly capable of acting, we do not regard them as proper objects of moral indignation. The reason for this is not merely the very limited scope of their volitions and their inability to foresee consequences of their acts, since these considerations could only restrict their responsibility within correspondingly narrow limits. Their total irresponsibility rests on the presumption that they are incapable of recognising any act of theirs as right or wrong. If the concomitant of an act is imputable to the agent only in so far as he could know it, it is obvious that no act is wrong which the agent could not know to be wrong.

It is a familiar fact that, by discipline, we may teach domesticated animals to live up to a certain standard of behaviour, but this by no means implies that we awake in them moral feelings. When some writers credit dogs and apes with a conscience,1 we must remember that an 250observer’s inference is not the same as an observed fact.2 It seems that the so-called conscience in animals is nothing more than an association in the animal’s mind between the performance of a given act and the occurrence of certain consequences, together with a fear of those consequences.3

1 Romanes, Mental Evolution in Animals, p. 352. Perty, Seelenleben der Thiere, p. 67. Brehm, From North Pole to Equator, p. 298.

2 Cf. Lloyd Morgan, Animal Life and Intelligence, p. 399.

3 Cf. ibid. p. 405.

The following is one of the most striking instances of what Professor Romanes regards as “conscience” in animals; it refers to a terrier which had never, even in its puppyhood, been known to steal, but on the contrary used to make an excellent guard to protect property from other animals, servants, and so forth, even though these were his best friends. “Nevertheless,” says Professor Romanes, “on one occasion he was very hungry, and in the room where I was reading and he was sitting, there was, within easy reach, a savoury mutton chop. I was greatly surprised to see him stealthily remove this chop and take it under a sofa. However, I pretended not to observe what had occurred, and waited to see what would happen next. For fully a quarter of an hour this terrier remained under the sofa without making a sound, but doubtless enduring an agony of contending feelings. Eventually, however, conscience came off victorious, for emerging from his place of concealment and carrying in his mouth the stolen chop, he came across the room and laid the tempting morsel at my feet. The moment he dropped the stolen property he bolted again under the sofa, and from this retreat no coaxing could charm him for several hours afterwards. Moreover, when during that time he was spoken to or patted, he always turned away his head in a ludicrously conscience-stricken manner. Altogether I do not think it would be possible to imagine a more satisfactory exhibition of conscience by an animal than this; for … the particular animal in question was never beaten in its life.” The author then adds in a note that “mere dread of punishment cannot even be suspected to have been the motive principle of action.”4 It may be so, if by punishment be understood the infliction of physical pain. But it can hardly be doubted that the terrier suspected his master to be displeased with his behaviour, and the dread of displeasure or reproof may certainly have been the sole reason for his bringing back the stolen food. Among 251“high-life” dogs, as Professor Romanes himself observes, “wounded sensibilities and loss of esteem are capable of producing much keener suffering than is mere physical pain.”5 But fear of the anticipated consequences of an act, even when mixed with shame, is not the same as the moral feeling of remorse. There is no indication that the terrier felt that his act was wrong, in the strict sense of the word.

4 Romanes, ‘Conscience in Animals,’ in Quarterly Journal of Science, xiii. 156 sq.

5 Idem, Animal Intelligence, p. 439.

However, though most of us, on due reflection, would deny that animals are proper objects of moral censure, there is a general tendency to deal with them as if they were. The dog or the horse that obstinately refuses to submit to its master’s will arouses a feeling of resentment which almost claims to be righteous; and the shock given to public feeling by some atrocious deed committed by a beast calls for retribution. As Adam Smith observes, “the dog that bites, the ox that gores, are both of them punished. If they have been the causes of the death of any person, neither the public, nor the relations of the slain, can be satisfied, unless they are put to death in their turn: nor is this merely for the security of the living, but, in some measure, to revenge the injury of the dead.”6

6 Adam Smith, Theory of Moral Sentiments, p. 137.

If thus our own resentment towards an animal which has caused some injury, when not duly tempered by reason, often comes near actual indignation, it is not surprising to find that, at the lower stages of human civilisation, animals are deliberately treated as responsible agents. The American Indian who eats the vermin which molest him defends his action by arguing that, as the animal has first bitten him, he is only retaliating the injury on the injurer.7 The custom of blood-revenge is often extended to the animal world. The Kukis, says Mr. Macrae, “are of a most vindictive disposition; blood must always be shed for blood; if a tiger kills 252any of them, near a Parah [or village], the whole tribe is up in arms, and goes in pursuit of the animal; when if he is killed, the family of the deceased gives a feast of his flesh, in revenge of his having killed their relation. And should the tribe fail to destroy the tiger, in this first general pursuit of him, the family of the deceased must still continue the chase; for until they have killed either this, or some other tiger, and have given a feast of his flesh, they are in disgrace in the Parah, and not associated with by the rest of the inhabitants. In like manner, if a tiger destroys one of a hunting party, or of a party of warriors, on an hostile excursion, neither the one nor the other (whatever their success may have been) can return to the Parah, without being disgraced, unless they kill the tiger.”8 Of the Sea Dyaks we are told that they will not willingly take part in capturing an alligator, unless the alligator has first destroyed one of themselves; “for why, say they, should they commit an act of aggression, when he and his kindred can so easily repay them? But should the alligator take a human life, revenge becomes a sacred duty of the living relatives, who will trap the man-eater in the spirit of an officer of justice pursuing a criminal…. The man-eating alligator is supposed to be pursued by a righteous Nemesis; and whenever one is caught, they have a profound conviction that it must be the guilty one, or his accomplice, for no innocent leviathan could be permitted by the fates to be caught by man.”9 So, also, the Malagasy will never kill a crocodile, except in retaliation for one of their friends or neighbours who has been destroyed by a crocodile. “They believe that the wanton destruction of one of these reptiles will be followed by the loss of human life, in accordance with the principle of lex talionis. The inhabitants living in the neighbourhood of the lake Itàsy, to the west of the central province, are accustomed to make a yearly proclamation253 to the crocodiles, warning them that they shall revenge the death of some of their friends by killing as many voày in return, and warning the well-disposed crocodiles to keep out of the way, as they have no quarrel with them, but only with their evil-minded relatives who have taken human life.”10

7 Harmon, Journal of Voyages and Travels in the Interior of North America, p. 327. Southey, History of Brazil, i. 223. Cf. Bastian, Der Mensch in der Geschichte, iii. 25.

8 Macrae, ‘Account of the Kookies,’ in Asiatick Researches, vii. 189.

9 Perham, ‘Sea Dyak Religion,’ in Journal of the Straits Branch of the Royal Asiatic Society, No. 10, p. 221 sq. Cf. Frazer, Golden Bough, ii. 390.

10 Sibree, The Great African Island, p. 269.

Animals are not only exposed to the blood-feud, but are often exposed to regular punishment. This is the case among the Mambettu in Central Africa. Casati mentions the following instance:—“A goat was chased and persecuted by a dog, and in the fight for self-defence the latter received a thrust from the goat’s horn. The poor dog, which was the valuable property of a powerful man, died shortly after. This serious matter was much discussed and commented upon, and finally referred to the king for judgment. The poor goat was sentenced to be slaughtered before its victim’s corpse, its flesh was served to the Mambettu [that is, people of the superior race], and that of the dog to the Mege [that is, people of the conquered race].”11 Among the Maori, according to Polack, the crime of impiety is not confined to man only, but even a pig straying over a sacred place incurs the punishment of death.12 In Muhammedan East Africa, some time ago, a dog was publicly scourged for having entered a mosque.13 The Bogos kill a bull or cow which causes the death of a man.14 According to the native code of Malacca, if a buffalo or a head of cattle “be tied in the forest, in a place where people are not in the habit of passing, and there gore anybody to death, it shall be put to death”; but the owner of the animal shall not be held liable.15 According to Hebrew law, “if an ox gore a man or a woman, that they die: then the ox shall be surely stoned, and his flesh shall not be eaten”; and, in the case of sexual intercourse 254between a man, or woman, and a beast, not only the human offender, but the beast, is to be put to death.16 It is prescribed in the Vendîdâd that, if a mad dog which bites without barking, smite a sheep or wound a man, “the dog shall pay for the wound of the wounded as for wilful murder.”17 Plato had undoubtedly borrowed from Attic custom or law the idea which underlies the following regulation in his ‘Laws’:—“If a beast of burden or other animal cause the death of any one, except in the case of anything of that kind happening to a competitor in the public contests, the kinsman of the deceased shall prosecute the slayer for murder, and the wardens of the country, such, and so many as the kinsman appoint, shall try the cause, and let the beast when condemned be slain by them, and let them cast it beyond the borders.”18 In various European countries animals have been judicially sentenced to death, and publicly executed, in retribution for injuries inflicted by them. Advocates were assigned to defend the accused animals, and the whole proceedings, trial, sentence, and execution, were conducted with all the strictest formalities of justice.19 These proceedings seem to have been particularly common from the end of the thirteenth till the seventeenth century; the last case in France occurred as late as 1845.20 Not only domestic animals, but even wild ones, were thus put on trial.21 “In 1565 the Arlesians asked for the expulsion of the grasshoppers. The case came before the Tribunal de l’Officialité, and Maître Marin was assigned to the insects as counsel. He defended his clients with much zeal. Since the accused had been created, he argued that they were justified in eating what was necessary to them. The opposite counsel cited the serpent in the Garden of Eden, and sundry other animals 255mentioned in Scripture, as having incurred severe penalties. The grasshoppers got the worst of it, and were ordered to quit the territory, with a threat of anathematisation from the altar, to be repeated till the last of them had obeyed the sentence of the honourable court.”22 From an earlier period we have records of maledictions and excommunications of vermin and obnoxious insects. In 1120, a bishop of Laon is reported to have excommunicated the caterpillars which were ravaging his diocese, with the same formula as that employed the previous year by the Council of Rheims in cursing the priests who persisted in marrying in spite of the canons.23 Such maledictions and excommunications, however, were probably regarded rather as magical means of expulsion than as punishments.24 Not long ago, when swarms of locusts ravaged the gardens of Tangier, the Shereef of Wazzan expelled the injurious animals by spitting into the mouth of one of them.

11 Casati, Ten Years in Equatoria, i. 176.

12 Polack, Manners and Customs of the New Zealanders, i. 240.

13 von Amira, Thierstrafen und Thierprocesse, p. 30.

14 Munzinger, Die Sitten und das Recht der Bogos, p. 83.

15 Newbold, British Settlements in the Straits of Malacca, ii. 257.

16 Exodus, xxi. 28 sq. Leviticus, xx. 15 sq.

17 Vendîdâd, xiii. 31. Cf. ibid. xiii. 32 sqq.; Yasts, xxiv. 44.

18 Plato, Leges, ix. 873.

19 Chambers, Book of Days, i. 127. Pertile, ‘Gli animali in giudizio,’ in Atti del R. Instituto Veneto, ser. vi. vol. iv. 139.

20 von Amira, Thierstrafen, pp. 2, 15, 16, 28 sq. In England such proceedings seem to have hardly occurred at all (ibid. p. 15), but, as we shall see, an animal which caused the death of a man was forfeited as deodand.

21 See Chambers, op. cit. i. 127 sq.

22 Marlinengo-Cesaresco, Essays in the Study of Folk-Songs, p. 183 sq.

23 Desmaze, Les pénalités anciennes, p. 31 sq.

24 This is the opinion of von Amira, who, however—as it seems to me, without sufficient evidence—suggests that the maledictions did not refer to ordinary animals, but to human souls or devils in disguise (Thierstrafen, p. 16 sqq.).

It has been suggested that the mediæval practice of punishing animals after human fashion was derived from the Mosaic law.25 But this hypothesis does not account for the comparatively late appearance of the practice, nor for the fact that, in some cases, other punishments short of death were inflicted upon offending beasts.26 It seems much more probable that the procedure in question developed out of an ancient European custom, to which it stood in the relationship of punishment to revenge.27 According to the customs or laws of various so-called Aryan peoples—Greeks,28 Romans,29 Teutons,30 Celts,31 Slavs,32—an 256animal which did some serious damage, especially if it caused the death of a man, was to be given up to the injured party, or his family, obviously in order that it might be retaliated upon.33 According to the Welsh Laws, “that is the only case in which the murderer is to be given up for his deed.”34 The fact that afterwards, in the later Middle Ages, this form of reprisal was in certain instances transformed into regular punishment, only implies that the principle according to which punishment succeeded vengeance in the case of human crimes was, by way of analogy, extended to injuries committed by animals.

25 Ibid. pp. 4, 47 sqq.

26 Pertile, loc. cit. p. 148.

27 Cf. Brunner, Forschungen zur Geschichte des deutschen und französischen Rechtes, p. 517 sqq.

28 Plutarch, Vita Solonis, 24. Xenophon, Historiæ Græcæ, ii. 4. 41.

29 Institutiones, iv. 9. Digesta, ix. 1.

30 Lex Salica (cod. i.), 36. Lex Ripuariorum, 46. Grimm, Deutsche Rechtsalterthümer, p. 664 sqq. Brunner, Forschungen, p. 513 sqq.

31 Ancient Laws of Ireland, i. 161; iv. 177, 179, 181. Welsh Laws, iv. i. 17 (Ancient Laws and Institutes of Wales, p. 391).

32 Macieiowski, Slavische Rechtsgeschichte, iv. 333.

33 See Lex Wisigothorum, viii. 4. 20; Schwabenspiegel, Landrechtbuch, 204; Dirksen, Civilistische Abhandlungen, i. 104; von Jhering, Geist des römischen Rechts, i. 123; Hepp, Die Zurechnung auf dem Gebiete des Civilrechts, p. 103; Grimm, Deutsche Rechtsalterthümer, p. 664; Brunner, Deutsche Rechtsgeschichte, ii. 556; Idem, Forschungen, p. 513.

34 Welsh Laws, iv. 1. 17 (Ancient Laws and Institutes of Wales, p. 391).

There has been considerable diversity of opinion concerning the purpose of inflicting punishments upon animals. Some writers suggest that it was possibly done with a view to deterring other animals from committing similar injuries.35 According to others, the animal was executed in order that the hateful act should be forgotten; Gratian, referring to St. Augustine,36 says, “Non propter culpam, sed propter memoriam facti pecus occiditur, ad quod mulier accesserit.”37 A theory which has gained much adherence explains the punishment as a symbolic act, performed for the purpose of inspiring horror of the crime into the minds of men.38 M. Thonissen maintains that, at Athens, “on frappait l’animal auteur d’un homicide, afin que le peuple, en voyant périr un être privé de raison, conçut une grande horreur pour l’effusion du sang humain.”39 It has also been supposed that the animal was punished with intention to intimidate those 257who were responsible for its acts,40 or that it was killed because it was dangerous.41 But the true solution of the problem seems simple enough. The animal had to suffer on account of the indignation it aroused. It was regarded as responsible for its deed.42 In early records the punishment is frequently spoken of as an act of “justice”;43 and the protests of Beaumanoir and others against this opinion44 only show that it was held in good earnest, if not by all, at least by many. From certain details we can also see how closely the responsibility ascribed to animals resembled the responsibility of men. In some of the texts of the Salic law the animal is spoken of as “auctor criminis.”45 In an ancient Irish law-tract it is said that, when a bee has blinded a person’s eye, the whole hive “shall pay the fine,” and “the many become accountable for the crime of one, although they all have not attacked.”46 Youth was a ground for acquittal, as appears from a case which occurred at Lavegny in 1457, when a sow and her six young ones were tried on a charge of their having murdered and partly eaten a child: whilst the sow, being found guilty, was condemned to death, the young pigs were acquitted on account of their youth and the bad example of their mother.47 In Burgundy, a distinction was made between a mischievous dog that entered a room through an open door and one that committed a burglary; the latter was a larron, and was to be punished as such.48 The repetition of a crime aggravated the punishment;49 258and the animal “principal” was punished more severely than the “accessories.50

35 Leibniz, Essais de Theodicée, p. 182 sq. Lessona, quoted by d’Addosio, Bestie delinquenti, p. 145.

36 St. Augustine, Quæstiones in Leviticum, 74 (ad Lev. xx. 16): “Nam pecora inde credendum est jussa interfici, quia tali flagitio contaminata, indignam refricant facti memoriam” (Migne, Patrologiæ cursus, xxxiv. 709).

37 Gratian, Decretum, ii. 15. 1. 4. Cf. Mishna, fol. 54, quoted by Rabbinowicz, Législation criminelle du Talmud, p. 116.

38 Ayrault, Des procès faicts au cadaver, aux cendres, à la mémoire, aux bestes brutes, fol. 24. Ortolan, Éléments du droit pénal, p. 188. Tissot, Le droit pénal, i. 19 sq.

39 Thonissen, Le droit pénal de la république Athénienne, p. 414.

40 Du Boys, quoted by d’Addosio, op. cit. p. 139.

41 Lessona, quoted ibid. p. 145.

42 Cf. Post, Die Grundlagen des Rechts, p. 359; Friedrichs, ‘Mensch und Person,’ in Das Ausland, 1891, pp. 300, 315; and, especially, d’Addosio, op. cit. p. 146 sqq.: “Nel medioevo si punì l'animale perchè lo si ritenne in certo modo conscio delle sue azioni, in certo modo libero, in certo modo responsabile.”

43 von Amira. op. cit. p. 9.

44 Beaumanoir, Les coutumes du Beauvoisis, lxix. 6, vol. ii. 485 sq. Chambers, op. cit. i. 127. Lichtenberg, Vermischte Schriften, iv. 481.

45 Lex Salica, edited by Hessels, coll. 209–212, 215.

46 Ancient Laws of Ireland, iv. 179.

47 Chambers, op. cit. i. 128.

48 Ancien Coutumier de Bourgogne, 23 (Revue historique de droit français et étranger, iii. 549): “Il deust hauoir faire justice del larron.”

49 Pertile, loc. cit. p. 148: “La Carta de Logu d’Eleonora giudicessa d’Arborea (1395) prescrive: che venendo trovato un asino in danno sui fondi altrui, per la prima volta gli si tagli un orecchio; la seconda, l’altro; e la terza, si confischi la bestia consegnandola alla corte principesca.” Cf. Vendîdâd, xiii. 32 sqq.

50 d’Addosio, op. cit. p. 16.

Considering the feelings to which even the cultured mind is susceptible with reference to a mischievous beast, it is not difficult to understand the attitude of the ignorant. The savage, not only momentarily, while in a rage, but permanently and in cold blood, obliterates the boundaries between man and beast. He regards all animals as practically on a footing of equality with man. He believes that they are endowed with feelings and intelligence like men, that they are united into families and tribes like men, that they have various languages like human tribes, that they possess souls which survive the death of the bodies just as is the case with human souls. He tells of animals that have been the ancestors of men, of men that have become animals, of marriages that take place between men and beasts. He also believes that he who slays an animal will be exposed to the vengeance either of its disembodied spirit, or of all the other animals of the same species which, quite after human fashion, are bound to resent the injury done to one of their number.51 Is it not natural, then, that the savage should give like for like? If it is the duty of animals to take vengeance upon men, is it not equally the duty of men to take vengeance upon animals?

51 Tylor, Primitive Culture, i. 467 sqq. Frazer, Golden Bough, ii. 389 sqq. Liebrecht, Zur Volkskunde, p. 17. Achelis, Moderne Völkerkunde, p. 373 sqq. Idem, ‘Animal Worship,’ in Open Court, xi. 705 sq. Waitz, Anthropologie der Naturvölker, ii. 180 (Negroes). von den Steinen, Unter den Naturvölkern Zentral-Brasiliens, p. 351. Im Thurn, Among the Indians of Guiana, p. 350 sqq. Dorman, Origin of Primitive Superstitions, pp. 223, 253. Lumholtz, Unknown Mexico, i. 331 (Tarahumares). Mooney, ‘Myths of the Cherokee,’ in Ann. Rep. Bur. Ethn. xix. pp. 250, 261 sq. Nelson, ‘Eskimo about Bering Strait,’ ibid. xviii. 423. Hose and McDougall, ‘Relations between Men and Animals in Sarawak,’ in Jour. Anthr. Inst. xxxi. 173 sqq., especially p. 205 sq.

Nor are these beliefs restricted to savages. Muhammedans maintain, not only that animals will share with men the general resurrection, but that they will be judged according to their works. Their tradition says that God “will raise up animals at the last day to receive 259reward and to show His perfection and His justice. Then the hornless goat will be revenged on the horned one.”52 We can hardly wonder that the Zoroastrian law inflicted punishments on dogs which hurt men or animals, when we read in the Vendîdâd that a dog has the characters of eight sorts of people.53 The fable and the Märchen for a long time related in good earnest their stories of animals that behaved exactly like men.54 Even to this day, in certain districts of Europe, as soon as a peasant is dead, it is customary for his heir to announce the change of ownership to every beast in the stall, and to the bees also;55 and in some parts of Poland, when the corpse of the rustic proprietor is being carried out, all his cattle are let loose, that they may take leave of their old master.56 In the Middle Ages animals were sometimes accepted as witnesses; a man who was accused of having committed a murder in his house appeared before the tribunal with his cat, his dog, and his cock, swore in their presence that he was innocent, and was acquitted.57 It was not only the common people that ascribed intelligence to beasts. According to Porphyry, all the philosophers who have endeavoured to discover the truth concerning animals have acknowledged that they to a certain extent participate of reason;58 and the same idea is expressed by Christian writers of a much later date. In the sixteenth century, Benoît wrote that animals often speak.59 In the middle of the following century, Hieronymus Rorarius published a book entitled ‘Quod animalia bruta ratione utantur melius homine.’ And about the same time Johann Crell, in his ‘Ethica Christiana,’ expressed the opinion that animals at all events possess faculties analogous to reason and free-will, that they have something similar to virtues and vices, that they 260deserve something like rewards and punishments, and are consequently punished by God and man.60 This, as it seems to me, is the correct explanation of the mediæval practice of punishing animals, even though, in some cases, as M. Ménabréa observes, the obnoxious animal was regarded as an embodiment of some evil spirit and was punished as such.61 The beast or insect was retaliated upon for the simple reason that it was regarded as a rational being.

52 Koran, vi. 38. Sell, Faith of Islám, p. 223.

53 Vendîdâd, xiii. 44 sqq.

54 See Grimm, Reinhart Fuchs, p. i. sqq.

55 Ralston, Songs of the Russian People, p. 315. Wuttke, Der deutsche Volksaberglaube der Gegenwart, p. 428.

56 Ralston, op. cit. p. 318.

57 Michelet, Origines du droit français, pp. 76, 279 sq. Chambers, op. cit. i. 129.

58 Porphyry, De abstinentia ab esu animalium, iii. 6.

59 Benoît, quoted by d’Addosio, op. cit. p. 214.

60 Crell, Ethica Christiana, ii. 1, p. 65 sq.:—“Hinc aliquid etiam virtuti et vitio simile, seu recte et prave factum: quorum illud est, cum bruta naturæ suæ ductum sequuntur, hoc cum a naturali via exorbitant. Unde tandem etiam aliquid præmio aut pœnæ, et huic quidem maxime simile. Unde bestias etiam a Deo punitas, aut pœnas certas lege illis constitutas, cernimus.”

61 Ménabréa, De l’origine de la forme et de l’esprit des jugements rendus au moyen-age contre les animaux, p. 35.

At the earlier stages of civilisation even inanimate things are treated as if they were responsible agents. The Kukis take revenge not only on a murderous tiger, but on a murderous tree. “If a man should happen to be killed, by an accidental fall from a tree, all his relations assemble, and cut it down; and however large it may be, they reduce it to chips, which they scatter in the winds, for having, as they say, been the cause of the death of their brother.”62 Among the aborigines of Western Victoria, “when the spear or weapon of an enemy has killed a friend, it is always burnt by the relatives of the deceased; but those captured in battle are kept, and used by the conquerors.”63 The North American Redskins, when struck with an arrow in battle, “will tear it from the wound, break and bite it with their teeth, and dash it on the ground.”64 The British Guiana Indian, when hurt either by falling on a rock, or by the rock falling on him, “attributes the blame, by a line of argument still not uncommon in more civilised life, to the rock.”65 The gods of the Vedic age cursed the trees which had injured them.66 Xerxes commanded261 that the Hellespont should be stricken with three hundred lashes,67 and Cyrus “wreaked his vengeance” on the river Gyndes by dispersing it through three hundred and sixty channels.68 Pausanias relates that when Theagenes had died, one of his enemies went up to his statue every night, and whipped the brass. At last, however, “the statue checked his insolence by falling on him; but the sons of the deceased prosecuted the statue for murder. The Thasians sank the statue in the sea, herein following the view taken by Draco, who, in the laws touching homicide which he drew up for the Athenians, enacted that even lifeless things should be banished if they fell on anybody and killed him.”69 As Dr. Frazer remarks, the punishment of inanimate objects for having accidentally been the cause of death was probably much older than Draco.70 At Athens there was a special tribunal for the purpose.71 Demosthenes states that, if a stone or a piece of wood or iron or any such thing fell and struck a man, and the person who threw the thing was not known, but the people knew, and were in possession of, the object which killed the man, that object was brought to trial at the court of the Prytaneum.72 Plato lays down the following rule in his ‘Laws’:—“If any lifeless thing deprive a man of life, except in the case of a thunderbolt or other fatal dart sent from the gods,—whether a man is killed by lifeless objects falling upon him, or by his falling upon them, the nearest of kin shall appoint the nearest neighbour to be a judge, and thereby acquit himself and the whole family of guilt. And he shall cast forth the guilty thing beyond the border.”73 Teutonic law, which still recognised the principle of private revenge, treated the inanimate murderer with less ceremony.74 According to the Laws of Alfred, when men were at work together in 262a forest, and by misadventure one let a tree fall on another, which killed him, the tree belonged to the dead man’s kinsfolk if they took it away within thirty days.75 Later on, in England, a thing by which death was caused was “forfeited to God, that is to the King, God’s Lieutenant on earth, to be distributed in works of charity for the appeasing of God’s wrath.”76 This law remained in force till 1846.77

62 Macrae, in Asiatick Researches, vii. 189 sq.

63 Dawson, Australian Aborigines, p. 53.

64 Robertson, History of America, i. 351 sq.

65 Im Thurn, op. cit. p. 354.

66 Oldenberg, Religion des Veda, p. 518.

67 Herodotus, vii. 35.

68 Ibid. i. 190.

69 Pausanias, vi. 11. 6. Cf. ibid. v. 27. 10.

70 Frazer, Pausanias, ii. 371.

71 Aristotle, De republica Atheniensium, 57. Pausanias, i. 28. 10.

72 Demosthenes, Contra Aristocratem, 76, p. 645.

73 Plato, Leges, ix. 873 sq.

74 See Trummer, Vorträge über Tortur, &c. i. 376 sq. Brunner, Forschungen, p. 521 sqq.

75 Laws of Alfred, ii. 13.

76 Coke. Third Part of the Institutes of the Laws of England, p. 57.

77 Stephen, History of the Criminal Law of England, iii. 78. Pollock and Maitland, History of English Law before the Time of Edward I. ii. 473.

In some of these cases superstitious dread may have been a motive for destroying or banishing the instrument of death. There are facts which prove that such an object is looked upon as a source of danger. According to the Ripuarian law, people are forbidden to make use of a thing which has been “auctor interfectionis”;78 and in Norway, in quite modern times, sickles, axes, and other objects with which men have been killed, have been seen lying about abandoned and unused.79 Again, among the aborigines of West Australia, if a person has been killed by a thrust of the native wooden spear, ghici, his country-men think that his soul remains in the point of the weapon which caused his death, and they burn it after his burial, so that the soul may depart.80 But it is also obvious that an inanimate thing which is the cause of a hurt is apt to evoke a genuine feeling of resentment. We kick the chair over which we stumble, we curse the stone which hurts us; Dr Nansen says that, when he was crossing Greenland, it would have caused him “quite real satisfaction” to destroy a sledge which was heavy to draw.”81 When we thus behave as if the offending object were capable of feeling our resentment, we for a moment vaguely believe that it is alive.82 But our anger very soon passes 263away when we realise the true nature of its object. The case is different with men at earlier stages of civilisation. They do not suppose that things which hurt them are senseless; on the contrary, they personify such things, not only hastily and momentarily, but deliberately and permanently; hence their resentment lasts. The Guiana Indian, says Sir E. F. Im Thurn, “attributes any calamity which may happen to him to the intention of the immediate instrument of its infliction, and he not unnaturally sees in the action of this instrument evidence of its possession of a spirit.”83 Trees, especially, are very commonly supposed to possess souls similar to those of men, and are treated accordingly.84 Pausanias writes that “lifeless things are said to have inflicted of their own accord a righteous punishment on men”; and as the best and most famous instance of this he mentions the sword of Cambyses.85 In England the inanimate murderer was to be given up to the kinsmen of the slain surely not as a compensation for the loss they had suffered, but as an object upon which their vengeance was to be wreaked.86 It was called la bane, that is, “the slayer”; Bracton also calls it the “malefactor.”87 It did not matter that its owner was recognised as innocent; the punishment was not intended for him.88 But in some well-defined cases the “slayer” was free from guilt. A ship or other vessel from which a person was drowned by misfortune was not forfeited as deodand in case the accident happened in salt water—as Coke indicates, on account of the great dangers to which the vessel is exposed “upon the raging waves in respect of the wind and tempest.”89 Moreover, if a boy under fourteen fell from a cart, or from a horse, it was 264no deodand, “because he was not of discretion to look to himself,” and so the cart, or horse, could not be regarded as blamable. But if a cart ran over a boy, or a tree fell upon him, or a bull gored him, it was deodand, because, apparently, it went out of its way to kill him.90 The fact of motion was one of considerable importance in the case of animals and inanimate things, as it was in the case of men. Thus Bracton would distinguish between the horse which throws a man and the horse off which a man tumbles, between the tree that falls and the tree against which a man is thrown; and, as a general rule, a thing was not a deodand unless it could be said “movere ad mortem.”91 If anybody was drowned by falling from a ship under sail, not only the ship itself but the things moving in it were deemed the cause of his death; whereas the merchandise lying at the bottom of the vessel was not presumed to be guilty, and consequently was not forfeited.92 But if any particular merchandise fell upon a person and caused his death, that merchandise became a deodand, and not the ship.93 As Mr. Holmes observes, a ship is the most persistent example of motion giving personality to a thing. “She” is still personified not only in common parlance, but in courts of justice. In maritime cases of quite recent date judges of great repute have pronounced the proceeding to be, not against the owner, but “against the vessel for an offence committed by the vessel.”94

78 Lex Ripuariorum, lxx. 1.

79 Liebrccht, Zur Volkskund, p. 313.

80 Salvado, Mémoires historiques sur l’Australie, p. 260 sq.

81 Nansen, Eskimo Life, p. 213 sq.

82 Cf. Dugald Stewart, Philosophy of the Active and Moral Powers of Man, i. 125; Hall, ‘Study of Anger,’ in American Journal of Psychology, x. 506 sq.

83 Im Thurn, op. cit. p. 354.

84 See Frazer, Golden Bough, i. 169 sqq.

85 Pausanias, i. 28. 11.

86 Pollock and Maitland, ii. 474.

87 Bracton, De Legibus et Consuetudinibus Angliæ, fol. 116, vol. ii. 236 sq.

88 Holmes, Common Law, p. 25.

89 Bracton, op. cit. fol. 122, vol. ii. 286 sq. Coke, op. cit. p. 58. Sir James Stephen supposes (op. cit. iii. 78) that “deodands were not in use at sea, because the local customs of England did not extend to the high seas.” But Coke expressly says (p. 58) that there can be no deodand of the ship even “in aqua salsa, being any arm of the sea, though it be in the body of the County.”

90 Coke, op. cit. p. 57. Hale, History of the Pleas of the Crown, i. 422. Stephen, op. cit. iii. 78.

91 Bracton, op. cit. fol. 136 b, vol. ii, 400 sq. Hale, op. cit. i. 420 sqq. Pollock and Maitland, op. cit. ii. 474, n. 4. Stephen, op. cit. iii. 77. Holmes, op. cit. p. 25 sq.

92 Britton, i. 2. 14, vol. i. 16.

93 Hale, op. cit. i. 422.

94 Holmes, op. cit. p. 29.

 

Like the lower animals, human beings in their earliest childhood are incapable of forming notions of right and wrong, hence they are not responsible for any act of theirs. Responsibility commences with the dawn of a moral consciousness, and increases along with the evolution of the intellect. Only by slow degrees the capacity of recognising265 act as right or wrong develops in the child. It soon learns that certain acts are forbidden, but to know that an act is forbidden is not the same as to recognise it as wrong. Nor does the knowledge of a moral rule involve the ability to apply that rule in particular cases. Nor can the youthful intellect be expected to possess the same degree of foresight as the intellect of a grown-up man. Hence the total or partial irresponsibility of childhood and early youth.

This irresponsibility is admitted by the laws of civilised nations. In England,95 Scotland,96 and the United States,97 children under seven are absolutely exempt from punishment. In other modern countries criminal responsibility does not commence until the age of nine,98 ten,99 twelve,100 or fourteen.101 In some it is to be decided in each case whether a child is punishable or not.102 Thus the French Code Pénal provides that a person under eighteen years of age shall not be punished if it be decided that he has acted without discernment (sans discernement) whereas, if he has acted with discernment (avec discernement), his punishment is to be mitigated according to a fixed scale.103 Most laws set down an intermediate period between that of complete irresponsibility and that of complete responsibility. According to English law there is a presumption that children from seven to fourteen are not possessed of the degree of knowledge essential to criminality, though this presumption may be rebutted by proof to the contrary;104 and, according to the German Strafgesetzbuch, a person from twelve to eighteen may be acquitted if, when he committed the offence, he did 266not possess the intelligence requisite to know that it was criminal.105 Other laws, again, regard a certain age eo ipso as a ground of extenuation, its upper limit being fixed sometimes at sixteen,106 sometimes at eighteen,107 sometimes at twenty,108 sometimes at twenty-one.109

95 Stephen, op. cit. ii. 97 sq.

96 Erskine-Rankine, Principles of the Law of Scotland, p. 546.

97 Bishop, Commentaries on the Criminal Law, § 368, vol. i. 209.

98 Italian Codice Penale, art. 53. Spanish Código Penal reformado, art. 8, § 2.

99 Austrian (Finger, op. cit. i. 110), Dutch (van Hamel, in Législation pénale comparée, edited by von Liszt, p. 444), Portuguese (Tavares de Medeiros, ibid. p. 199), Russian (Foinitzki, ibid. p. 529) law.

100 German Strafgesetzbuch, art. 55.

101 Swedish (Uppström, in Législation pénale comparée, p. 483), Finnish (Forsman, ibid. p. 565) law.

102 French, Belgian, Ottoman law (Rivière, ibid. p. 7).

103 Code Pénal, art. 66 sqq.

104 Stephen, op. cit. ii. 98. Kenny, Outlines of Criminal Law, p. 50.

105 Strafgesetzbuch, art. 56.

106 Dutch law (van Hamel, loc. cit. p. 444).

107 Spanish (Código Penal reformado, art. 9, § 2), Swedish (Uppström, loc. cit. p. 484), Finnish (Forsman, loc. cit. p. 566) law.

108 Austrian law (Finger, op. cit. i. 112).

109 Italian (Codice Penale, art. 56), Russian (Foinitzki, loc. cit. p. 529), Portuguese (Tavares de Medeiros, loc. cit. p. 199), Brazilian (Codigo Penal dos Estados Unidos do Brazil, art. 42, § 11) law. According to the Ottoman Penal Code, art. 40, “a guilty person who has not arrived at the age of puberty may not be punished with the punishment enacted against the offence of which he has been found guilty.”

Roman law, as it seems, made out a præsumptio juris of general incapacity to commit a crime under puberty, rebuttable by evidence of capacity, at any rate in the age called “next to puberty,” the limits of which are not clearly settled.110 In the Irish Book of Aicill it is said that “the man who incites a fool is he who pays for his crime”; and to this the Commentary adds that a man is a fool till the end of seven years, and a fool of half sense till the end of fourteen111—a provision similar to that of Canon Law.112 According to Muhammedan law, the rule of talion is applicable only to persons of age.113 In China criminal responsibility is affected not only by youth, but by old age as well. “Offenders whose age is not more than seven nor less than ninety years, shall not suffer punishment in any case, except in that of treason or rebellion.” “Any offender whose age is not more than ten nor less than eighty years, … shall, when the crime is capital, but not 267amounting to treason, be recommended to the particular consideration and decision of His Imperial Majesty.” And “any offender whose age is not more than fifteen, nor less than seventy years … shall be allowed to redeem himself from any punishment less than capital, by the payment of the established fine, except in the case of persons condemned to banishment as accessories to the crimes of treason, rebellion, murder of three or more persons in one family, or homicide by magic or poisoning, upon all of which offenders the laws shall be strictly executed.”114

110 Clark, Analysis of Criminal Liability, p. 70. von Jhering, Das Schuldmoment im römischen Privatrecht, p. 42 sqq. Mommsen Römisches Strafrecht, p. 75 sq. In the Institutiones (i. 22) puberty is fixed at the completion of the fourteenth year for males, and of the twelfth for females. According to the Law of the Twelve Tables, children were punished for theft, though less severely than adults (Gellius, Noctes Atticæ, xi. 18. 8. Pliny, Historia naturalis, xviii. 3).

111 Ancient Laws of Ireland, iii. 157.

112 Katz, Grundriss des kanonischen Strafrechts, p. 8.

113 Sachau, Muhammedanisches Recht, p. 762. Jaffur Shurreef says (Qanoon-e-Islam, p. 36) that, among the Muhammedans of India, previous to the period of puberty all the good and evil deeds of boys and girls are laid to the charge of their parents.

114 Ta Tsing Leu Lee, sec. xxii. sq.

According to early custom, children who have committed an injury are sometimes,115 but not always,116 subject to the rule of retaliation. Even in Homeric Greece, manslaughter committed in childhood seems to have been visited with banishment for life.117 In other cases parents are responsible for the deeds of their children.118 Among the West African Fjort, for instance, children are not themselves liable for their actions, but the injured party can claim compensation from the parents if he likes to do so.119 Among the Teutons, “like the master for the slave, the father answered for and made claims on behalf of the child. The ceremony of investing him with arms as a wehrhaft, or weapon-bearing member of the community, was the usual period for the assumption of rights and liabilities; and this customarily (not always) took place at the age of twelve.”120 According to ancient Swedish law, an injury was treated in the same way as if it had been accidental, in case the offender was under the age of fifteen;121 according to the Icelandic Grágás, in case he was 268under sixteen.122 However, as we have seen, accidental injuries had to be paid for. Where offences are dealt with according to the principle of compensation, it is impossible to decide how far parents’ liability for their children involves a recognition of the moral irresponsibility of the child, or is simply due to the fact that children, having no property, are themselves unable to compensate. That the latter point of view was largely adopted by early custom and law appears from the fact that, when compensation was succeeded by punishment, the period of irresponsibility was reduced. In England the age-limit of twelve years, which prevailed in Anglo-Norman days, was afterwards disregarded in criminal cases.123 We read in the Northumberland Assize Roll, A.D. 1279, “Reginald … aged four, by misadventure slew Robert … aged two; the justice granted that he might have his life and members because of his tender age.”124 A little later we hear that a child under the age of seven shall not suffer judgment in a case of homicide.125 In 1457, an infant of four was held liable in trespass, though the language of the court shows a disposition to exempt the infant.126 From the eighteenth century instances are recorded of a girl of thirteen who was burnt for killing her mistress, and of a boy of eight who was hanged for arson.127 In 1748, a boy of ten, being convicted for the murder of a girl of five, was sentenced to death, and all the judges to whom this case was reported agreed that, “in justice to the publick,” the law ought to take its course. The execution, however, was respited, and the boy at last had the benefit of His Majesty’s pardon.128 It appears from these facts, and from others of a similar character referring to continental countries,129 that there has been a tendency to raise the age 269at which full legal responsibility commences. And we have reason to hope that legislation has not yet said its last word on the subject.

115 Senfft, in Steinmetz, Rechtsverhältnisse, p. 449 (Marshall Islanders). Miklosich, ‘Blutrache bei den Slaven,’ in Denkschriften d. kaiserl. Akadamie d. Wissensch. Philos.-hist. Classe, Vienna, xxxvi. 131 (Turks of Daghestan). See also supra, p. 217 sq.

116 Lang, in Steinmetz, Rechtsverhältnisse, p. 257 (Washambala).

117 Iliad, xxiii. 85 sqq. Cf. Müller, Dissertations on the Eumenides, p. 95.

118 Nicole, in Steinmetz, Rechtsverhältnisse p. 132 (Diakité-Sarrakolese). Marx, ibid. p. 357 (Amahlubi).

119 Dennett, in Jour. African Society, i. 276.

120 Wigmore, ‘Responsibility for Tortious Acts,’ in Harvard Law Review, vii. 447.

121 Wilda, Strafrecht der Germanen, p. 642 sq. Nordström, Bidrag till den svenska samhälls-författningens historia, ii. 73. Cf. von Amira, Nordgermanisches Obligationenrecht, i. 375 sq.

122 Grágás, Vigsloþi, 32, vol. ii. 63.

123 Wigmore, loc. cit. p. 447.

124 Three Early Assize Rolls for the County of Northumberland, p. 323.

125 Pollock and Maitland, op. cit. ii. 84.

126 Wigmore, loc. cit. p. 447 sq. n. 7.

127 Wilson, History of Modern English Law, p. 124.

128 Foster, Report of Crown Cases, p. 70 sqq.

129 Trummer, op. cit. i. 428, 432 sqq. (Germany). Jousse, Traité de la justice criminelle de France, ii. 617; Tissot, Droit pénal, i. 30 (France).

 

The principle that intellectual incapacity lessens or excludes responsibility also applies to idiots and madmen. Though idiots are able to acquire some knowledge of general moral rules, the application of those rules is frequently beyond their powers;130 and their capacity of foreseeing the consequences of their acts is necessarily very restricted. The same to some extent holds good of madmen; but, as will be shown in the next chapter, there is another ground for their irresponsibility besides the derangement of the intellect.

130 von Krafft-Ebing, Lehrbuch der gerichtlichen Psychopathologie, p. 70.

All modern laws admit that, at least under certain circumstances, idiocy or madness exempts a person from criminal responsibility. According to Roman law, lunatics were even free from the obligation of paying indemnities for losses inflicted by them;131 and so mild was their lot at Rome, that it became a practice for citizens to shirk their public duties by feigning madness.132 Even savages recognise that lunatics and maniacs are not responsible for their deeds. The Abipones maintained that it was “wrong and irrational to use arms against those who are not in possession of their senses.”133 Among the North American Potawatomis many “are said to be ‘foolish,’ and not sensible of crime.”134 The Iroquois are “persuaded that a person who is not in his right senses is not to be reprehended, or at least not to be punished.”135 Hennepin states that “they had one day in the year which might be called the Festival of Fools; for in fact they pretended to be mad, rushing from hut to hut, so that if they ill-treated any one or carried off anything, they would say next day, 270‘I was mad; I had not my senses about me.’ And the others would accept this explanation and exact no vengeance.”136 The Melanesians “are sorry for lunatics and are kind to them, though their remedies are rough”; at Florida, for instance, a man went out of his mind, chased people, stole things and hid them, but “no one blamed him, because they knew that he was possessed by a tindalo ghost.”137 Among the West African Fjort fools and idiots are not responsible personally for their actions.138 Among the Wadshagga crimes committed by lunatics are judged of more leniently than others.139 Among the Matabele madmen, being supposed to be possessed of a spirit, “were formerly under the protection of the King.”140 In Eastern Africa the natives say of an idiot or a lunatic, “He has fiends.”141 El Hajj ʿAbdssalam Shabeeny states that in Hausaland “a man guilty of a crime, who in the opinion of the judge is possessed by an evil spirit, is not punished.”142

131 von Vangerow, Lehrbuch der Pandekten, iii. 36. von Jhering, Das Schuldmoment im römischen Privatrecht, p. 42. Thon, Rechtsnorm und subjectives Recht, p. 106, n. 70.

132 Digesta, xxvii. 10. 6.

133 Dobrizhoffer, Account of the Abipones, ii. 234.

134 Keating, Expedition to the Source of St. Peter’s River, i. 127.

135 Charlevoix, Voyage to North America, ii. 24 sq.

136 Hennepin, Description de la Louisiane, Les Mœurs des Sauvages, p. 71 sq.

137 Codrington, Melanesians, p. 218.

138 Dennett, in Jour. African Society, i. 276.

139 Merker, quoted by Kohler, in Zeitschr. f. vergl. Rechtswiss. xv. 64.

140 Decle, Three Years in Savage Africa, p. 154.

141 Burton, Lake Regions of Central Africa, ii. 320.

142 ʿAbdssalam Shabeeny, Account of Timbuctoo and Housa, p. 49.

The idea that derangement of the mind is due to spiritual possession, often makes the idiot or the insane an object of religious reverence.143 The Macusis regard lunatics as holy.144 The Brazilian Paravilhana believe that idiots are inspired.145 According to Schoolcraft, “regard for lunatics, or the demented members of the human race, is a universal trait among the American tribes.”146 So, also, the African Barolong give a kind of worship to deranged persons, who are said to be under the direct influence of a deity.147 A certain kind of madness was regarded by the ancient Greeks as a divine gift, and consequently as “superior to a sane mind.”148 Lane states that, among the modern 271Egyptians, an idiot or a fool is vulgarly regarded “as a being whose mind is in heaven, while his grosser part mingles among ordinary mortals; consequently he is considered an especial favourite of heaven. Whatever enormities a reputed saint may commit (and there are many who are constantly infringing precepts of their religion), such acts do not affect his fame for sanctity; for they are considered as the results of the abstraction of his mind from worldly things—his soul, or reasoning faculties, being wholly absorbed in devotion—so that his passions are left without control. Lunatics who are dangerous to society are kept in confinement, but those who are harmless are generally regarded as saints.”149 The same holds good of Morocco. Lunatics are not even obliged to observe the Ramadan fast, the most imperative of all religious duties; of a person who, instead of abstaining from all food till sunset, was taking his meal in broad daylight in the open street, I heard the people forgivingly say, “The poor fellow does not know what he is doing, his mind is with God.”150

143 Cf. Tylor, Primitive Culture, ii. 128.

144 Andree, Ethnographische Parallelen, Neue Folge, p. 3.

145 von Martius, Beiträge zur Ethnographie Amerika’s, i. 633.

146 Schoolcraft, Indian Tribes of the United States, iv. 49.

147 Tylor, Primitive Culture, ii. 130.

148 Plato, Phædrus, p. 244.

149 Lane, Manners and Customs of the Modern Egyptians, p. 237.

150 Cf. Gråberg di Hemsö, Specchio geografico, e statistico dell’ impero Marocco, p. 182 sq.

On the other hand there are peoples who treat their lunatics in a very different manner. The tribes of Western Victoria put them to death, “as they have a very great dread of mad people.”151 In Kar Nicobar madness is said to be the only cause for a death “penalty” that seems to exist there, the afflicted individual being garrotted with two pieces of bamboo;152 but this practice seems to be a method of getting rid of a dangerous individual, rather than a penalty in the proper sense of the word. Among the Washambala a lunatic who commits homicide is killed—as our informant observes, “not really on account of his deed, but in order to prevent him from causing further mischief.”153 Among the Turks of Daghestan, we are told, mad people are subject to the rule of blood-revenge.154

151 Dawson, op. cit. p. 61.

152 Distant, in Jour. Anthr. Inst. iii. 6.

153 Lang, in Steinmetz, Rechtsverhältnisse, p. 257.

154 Miklosich, loc. cit. p. 131.

272In China lunatics are held responsible for their acts, although the ordinary penalty applicable is commuted, as for instance, in murder to imprisonment with fetters subject to His Majesty’s pleasure. But when a lunatic deliberately kills his parents or grandparents, a representation will not serve; he is to be executed at once on the spot where the murder was committed or on the city execution ground, and the sentence—slicing to pieces—is to be carried out in all its horror though the lunatic be already dead.155

155 Alabaster, Commentaries on Chinese Law, pp. 93, 96. Cf. Douglas, Society in China, pp. 72, 122.

According to ancient Welsh law, no vengeance is to be exercised against an idiot,156 nor is the king to have any fine for the act of such a person.157 But, “if idiots kill other persons, let galanas [that is, blood-money] be paid on their behalf, as for other persons; because their kindred ought to prevent them doing wrong.”158 The Swedish provincial laws treated an injury committed by a lunatic in the same manner as an injury by misadventure, provided that the relatives of the injurer had publicly announced his madness, or, according to some laws, had kept him tied in bonds which he had broken; but if they had omitted to do so, the injury was treated as if it had been done wilfully.159 The Icelandic Grágás even lays down the rule that a madman who has committed homicide shall suffer the same punishment as a sane person guilty of the same crime.160 In England, in the times of Edward II. and Edward III., proof of madness appears not to have entitled a man to be acquitted, at least in case of murder, but to a special verdict that he committed the offence when mad, and this gave him a right to pardon.161 Such a right, indeed, implies the admission that lunacy has a claim to forbearance; but from what we know about the treatment of lunatics during the Middle Ages and much later, we cannot be sure that the insane offender escaped 273all punishment. In a case which occurred in 1315, it was presented that a certain lunatic wounded himself with a knife, and finally died of his wounds; his chattels were confiscated.162 Lord Bacon says in his ‘Maxims of the Law,’ “If an infant within years of discretion, or a madman, kill another, he shall not be impeached thereof: but if he put out a man’s eye, or do him like corporal hurt, he shall be punished in trespass”; in these latter cases, “the law doth rather consider the damage of the party wronged, than the malice of him that was the wrong-doer.”163 In none of the German town-laws before the beginning of the seventeenth century is there any special provision for the offences of lunatics;164 and, according to the Statutes of Hamburg of 1605, though a madman who kills a person shall not be punished as an ordinary manslayer, he is yet to be punished.165 In Germany recognised idiots and madmen were not seldom punished with great severity, and even with death, in the seventeenth and eighteenth centuries.166 One of the darkest pages in the history of European civilisation may be filled with a description of the sufferings which were inflicted upon those miserable beings up to quite modern times.167 Many of them were burnt as witches or heretics, or treated as ordinary criminals. For unruly and crazy people, who nowadays would be comfortably located in an asylum, whipping-posts and stocks were made use of. Shakespeare speaks of madmen as deserving “a dark house and a whip”;168 and Swift observes that original people like Diogenes and others, if they had lived in his day, would have been treated like madmen, that is, would have incurred “manifest danger of phlebotomy, and whips, and chains, and dark chambers, and straw.”169 The writings of 274Esquirol, the parliamentary debates on the asylums of Bedlam and York, and the reports presented under the auspices of La Rochefoucauld to the National Assembly of 1789, contain a picture unique in its sadness—“a picture of prisons in which lunatics, criminal lunatics, and criminals are huddled together indiscriminately without regard to sex or age, of asylums in which the maniac, to whom motion is an imperious necessity, is chained in the same cell with the victim of melancholia whom his ravings soon goad into furious madness, and of hospitals in which the epileptic, the scrofulous, the paralytic and the insane sleep side by side—a picture of cells, dark, foul, and damp, with starving, diseased, and naked inmates, flogged into submission, or teased into fury for the sport of idle spectators.”170

156 Dimetian Code, ii. 1. 32 (Ancient Laws and Institutes of Wales, p. 200).

157 Venedotian Code, ii. 28. 3 (ibid. p. 98).

158 Welsh Laws, iv. 1. 2 (ibid. p. 389).

159 von Amira, Nordgermanisches Obligationenrecht, i. 375.

160 Grágás, Vigsloþi, 33, vol. ii. 64.

161 Stephen, op. cit. ii. 151.

162 Wigmore, loc. cit. p. 446.

163 Bacon, Maxims of the Law, reg. 7 (Works, vii. 347 sq.).

164 Trummer, op. cit. i. 428.

165 Ibid. i. 432.

166 Ibid. i. 438 sqq.

167 See Tuke, Chapters in the History of the Insane in the British Isles, p. 43 sq.; Maudsley, Responsibility in Mental Disease, p. 10 sq.; Lecky, History of European Morals, ii. 85 sqq.

168 Shakespeare, As you Like it, iii. 2.

169 Swift, Tale of a Tub, sec. 9 (Works, x. 163).

170 Wood-Renton, ‘Moral Mania,’ in Law Quarterly Review, iii. 340.

Whatever share indifference to human suffering may have had in all these atrocities and all this misery, it is likely that thoughtlessness, superstition, and ignorance have had a much larger share. We have noticed that, when a certain deed gives a shock to public feelings, the circumstances in which it has been committed are easily lost sight of. Considering that the Chinese punish persons who have killed their father or mother by pure accident, it is not surprising that they punish madmen who kill a parent wilfully. Even a man like Smollett, the well-known writer, thought it would be neither absurd nor unreasonable for the legislature to divest all lunatics of the privilege of insanity in cases of enormity, and to subject them “to the common penalties of the law.”171 Moreover, as we have seen, madness is often attributed to demoniacal possession,172 and in other cases it is regarded as a divine punishment.173 From a pagan 275point of view this would make the lunatic an object of pity or dread, rather than of indignation; as the Roman legislator said, the insane murderer ought not to be punished, because his insanity itself is a sufficient penalty.174 But in Christian Europe, where up to quite recent times men were ever ready to punish God’s enemies, a lunatic, who was supposed to have the devil in him, or whose affliction was regarded as the visitation of God upon heresy or sin,175 was a hateful individual and was treated accordingly. Finally, we have to take into account that the sensibility of a lunatic was thought to be inferior to that of a sane person;176 that the mental characteristics of insanity were little understood; and that, in consequence, many demented persons were treated as if they were sane because they were thought to be sane, and others, though recognised as lunatics, were treated as responsible because they were thought to be responsible. The history of the English law referring to insanity bears sad testimony to the ignorance of which lunatics have been victims in the hands of lawyers.

171 Smollett, quoted by Tuke, op. cit. p. 96.

172 See also Doughty, Arabia Deserta, i. 258 sq.; Westermarck, ‘Nature of the Arab Ğinn illustrated by the Present Beliefs of the People of Morocco,’ in Jour. Anthr. Inst. xxix, 254; Andree, op. cit. p. 2 sq.; Tuke, op. cit. p. 1; Pike, History of Crime in England, i. 39; von Krafft-Ebing, op. cit. p. 5.

173 Plato, Leges, ix. 854. Esquirol, Des maladies mentales, i. 336.

174 Digesta, i. 18. 14; xlviii. 9. 9.

175 Wood-Renton, loc. cit. p. 339.

176 Ibid. p. 339.

From the year 1724 there is a dictum of an English judge to the effect that a man who is to be exempted from punishment “must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast.”177 From the beginning of the nineteenth century, the power of distinguishing right from wrong in the abstract was regarded as the test of responsibility;178 whilst in the existing doctrine, dating from the trial of MʿNaughten in 1843, the question of knowledge of right and wrong, instead of being put generally and indefinitely, is put in reference to the particular act at the particular time of committing it.179 This series of doctrines certainly shows a noteworthy progress 276in discrimination. But at the same time the answers given by the fourteen English judges to the questions put to them by the House of Lords in consequence of MʿNaughten’s case still display an ignorance which would nowadays be hardly possible. In reply to the question—“If a person under an insane delusion as to existing facts, commits an offence in consequenc