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








THE ORIGIN AND DEVELOPMENT OF THE MORAL IDEAS


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MACMILLAN AND CO., LIMITED

LONDON . BOMBAY . CALCUTTA
MELBOURNE


THE MACMILLAN COMPANY


NEW YORK . BOSTON . CHICAGO
DALLAS . SAN FRANCISCO


THE MACMILLAN CO. OF CANADA, LTD.

TORONTO




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-Ba[k.][k.]âli, to whom credit {vi} 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.-- {viii} The 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 {xi} criminal 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 {xii} severely 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.


{xiii} CHAPTER 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.


{xiv} CHAPTER 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._


{xv} CHAPTER 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 {xvi} granted 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 {xvii} the 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 {xviii} the 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.-- {xix} Accounts 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 {xx} of 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 {xxi} husband'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 {2} moral 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 {3} opinions 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 {5} concepts, 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 {6} within 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.

[Footnote 1: Stephen, _Liberty_, _Equality_, _Fraternity_, p. 338.]

[Footnote 2: Bentham, _Principles of Morals and Legislation_, p. 4.]

[Footnote 3: James Mill, _Fragment on Mackintosh_, pp. 5, 376.]

[Footnote 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.

[Footnote 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" {7} moral
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]

[Footnote 6: Price, _Review of the Principal Questions in Morals_, pp.
63, 74 _sq._]

[Footnote 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 {8} called. 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]

[Footnote 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 {9} make 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 {10} intellectual 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.

[Footnote 9: Bentham, _Principles of Morals and Legislation_, p. 4 _sq._]

[Footnote 10: Spencer, _Principles of Ethics_, i. 45, 337 _sq._]

[Footnote 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 {11} from "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.

[Footnote 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 {12} lower 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-good {13} 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.

[Footnote 13: Sidgwick, _op. cit._ p. 383.]

[Footnote 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.

[Footnote 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.]

{14} Besides 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]

[Footnote 16: Butler, 'Sermon II.--Upon Human Nature,' in _Analogy of
Religion_, _&c._ p. 403.]

[Footnote 17: Dugald Stewart, _Philosophy of the Active and Moral
Powers of Man_, i. 302.]

[Footnote 18: Adam Smith, _Theory of Moral Sentiments_, p. 235.]

[Footnote 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.

[Footnote 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 {16} sharpens 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.

[Footnote 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 {17} words 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.

[Footnote 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).]

[Footnote 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 {18} forth 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]

[Footnote 24: Bentham, _Principles of Morals and Legislation_, p. 4.
_Cf._ Höffding, _Etik_, p. 43.]

[Footnote 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.

[Footnote 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 mischievous
{19} 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. {20} Could 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:--

                           Retributive Emotions.
                                     |
                  ----------------------------------------
                  |                                      |
              Resentment.                   Retributive Kindly Emotion.
                  |                                      |
        -----------------             ---------------------------
        |               |             |                         |
  Anger and          Moral          Moral          Non-moral retributive
   Revenge.       disapproval.     approval            Kindly Emotion,
                        |             |              including Gratitude.
                        ---------------
                               |
                        Moral Emotions.

{22} That 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.

[Footnote 1: _Cf._ Ribot, _Psychology of the Emotions_, p. 220 _sqq._]

[Footnote 2: There are some good remarks on this in Mr. Hiram
Stanley's _Studies in the Evolutionary Psychology of Feeling_,
p. 138 _sq._]

[Footnote 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 {23} anger 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.

[Footnote 4: Sully, _Studies in Childhood_, p. 232 _sq._]

[Footnote 5: Darwin, 'Biographical Sketch of an Infant,' in _Mind_,
ii. 288.]

[Footnote 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]

[Footnote 7: _Ethnologische Studien zur ersten Entwicklung der
Strafe_.]

[Footnote 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.]

{24} We 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."

[Footnote 9: Steinmetz, _op. cit._ i. 355, 356, 359, 561.]

[Footnote 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 {25} from 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]

[Footnote 11: _Ibid._ i. 356 _sq._]

[Footnote 12: _Ibid._ i. 359 _sq._]

[Footnote 13: Steinmetz, _op. cit._ i. 361.]

[Footnote 14: _Ibid._ i. 358, 359, 361 _sq._]

[Footnote 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]

[Footnote 16: _Ibid._ i. 364.]

Under the heading "Perfectly Undirected Revenge," Dr. Steinmetz
sets out several alleged cases of such so-called survivals[17] 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 {26} sow 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 {27} a 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.

[Footnote 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, {28} or
_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 {29} wait
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]

[Footnote 18: Petitot, _Les Grands Esqimaux_, p. 207 _sq._]

[Footnote 19: Dieffenbach, _Travels in New Zealand_, ii. 127.]

[Footnote 20: _Cf._ _ibid._ ii. 129.]

[Footnote 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).]

[Footnote 22: _Cf._ Steinmetz, _op. cit._ i. 343.]

[Footnote 23: Taylor, _Te Ika a Maui_, p. 221.]

[Footnote 24: Earl, _Papuans_, p. 132.]

[Footnote 25: Steinmetz, _op. cit._ i. 335 _sq._]

[Footnote 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]

[Footnote 27: Steinmetz, _op. cit._ i. 337 _sq._]

[Footnote 28: Hale, _U.S. Exploring Expedition Vol. VI.--Ethnography
and Philology_, p. 115; quoted by Steinmetz, _op. cit._ i. 337.]

[Footnote 29: Fraser, _Aborigines of New South Wales_, p. 86.]

[Footnote 30: Spencer and Gillen, _Native Tribes of Central
Australia_, p. 476 _sq._]

[Footnote 31: Calvert, _Aborigines of Western Australia_, p. 20 _sq._]

{30} To 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.

[Footnote 32: Seneca, _De ira_, iii. 1.]

[Footnote 33: Stanley Hall, 'A Study of Anger,' in _American Jour. of
Psychology_, x. 554.]

[Footnote 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 {31} offender 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]

[Footnote 35: _Cf._ Post, _Anfänge des Staats- und Rechtsleben_,
p. 180; Rée, _op. cit._ p. 49 _sq._; Steinmetz, _op. cit._ i. ch. vi.]

[Footnote 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).]

[Footnote 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).]

[Footnote 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, {32} revenge "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 Japanese[48] and Coreans,[49] the
Persians[50] and Hindus,[51] the ancient Greeks[52] and Teutons.[53]
It was a rule among the Welsh[54] 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]

[Footnote 39: Bridges, in _South American Missionary Magazine_,
xiii. 151 _sqq._]

[Footnote 40: Macfie, _Vancouver Island and British Columbia_, p. 470.]

[Footnote 41: Cranz, _History of Greenland_, i. 178.]

[Footnote 42: Shortland, _Traditions and Superstitions of the New
Zealanders_, p. 213 _sq._ _Cf._ _ibid._ p. 218 _sq._]

[Footnote 43: Turner, _Samoa_, p. 317.]

[Footnote 44: Hanoteau and Letourneux, _La Kabylie_, iii. 61.]

[Footnote 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.]

[Footnote 46: Burckhardt, _Travels in Nubia_, p. 128.]

[Footnote 47: _2 Samuel_, xiv. 7. _Cf._ _ibid._ xxi.]

[Footnote 48: Dautremer, 'The Vendetta or Legal Revenge in Japan,' in
_Trans. Asiatic Soc. Japan_, xiii. 84.]

[Footnote 49: Griffis, _Corea_, p. 227.]

[Footnote 50: Spiegel, _Erânische Alterthumskunde_, iii. 687. Polak,
_Persien_, ii. 96.]

[Footnote 51: Dubois, _Description of the Character, Manners, and
Customs of the People of India_, p. 195.]

[Footnote 52: Leist, _Alt-arisches Jus Gentium_, p. 424.]

[Footnote 53: _Gotlands-Lagen_, 13.]

[Footnote 54: Walter, _Das alte Wales_, p. 138.]

[Footnote 55: Mackintosh, _History of Civilisation in Scotland_,
ii. 279.]

[Footnote 56: Gregorovius, _Wanderings in Corsica_, i. 179.]

[Footnote 57: Gop[vc]evi['c], _**Oberalbanien und seine Liga_,
p. 324 _sqq._]

[Footnote 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.]

[Footnote 59: Lago, _Memorie sulla Dalmazia_, ii. 90.]

[Footnote 60: Gop[vc]evi['c], _op. cit._ p. 325.]

There is no difficulty in explaining these facts. The following
statement made by Mr. Romilly with reference {33} to 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 sam__e 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, {34} or
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 {35} sacrificed 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.

[Footnote 61: Romilly, _Western Pacific and New Guinea_, p. 81. _Cf._
Friedrichs, 'Mensch und Person,' in _Das Ausland_, 1891, p. 299.]

[Footnote 62: See, _e.g._, Scott Robertson, _The Káfirs of the
Hindu-Kush_, p. 440.]

[Footnote 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._]

[Footnote 64: Wilkins, _Modern Hinduism_, p. 411.]

[Footnote 65: Krauss, _op. cit._ p. 39.]

[Footnote 66: Blunt, _Bedouin Tribes of the Euphrates_, ii. 206 _sq._]

[Footnote 67: Powers, _Tribes of California_, p. 320.]

[Footnote 68: Munzinger, _Ostafrikanische Studien_, p. 243.]

[Footnote 69: Blumentritt, quoted by Spencer, _Principles of Ethics_,
i. 370 _sq._]

[Footnote 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 {36}
probable 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.

[Footnote 71: Fison and Howitt, _Kamilaroi and Kurnai_, p. 221.]

[Footnote 72: Dawson, _Australian Aborigines_, p. 71.]

[Footnote 73: Grey, _Journals of Expeditions_, ii. 239.]

[Footnote 74: Bamler, quoted by Kohler, in _Zeitschr. f. vergl.
Rechtswiss._ xiv. 380.]

[Footnote 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). Popovi['c], _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).]

[Footnote 76: Hyades and Deniker, _Mission scientifique du Cap Horn_,
vii. 375.]

[Footnote 77: von Martius, _op. cit._ i. 128.]

[Footnote 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 {37} human 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.

[Footnote 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 {38}
animal 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]

[Footnote 80: Darwin, _Descent of Man_, p. 69.]

[Footnote 81: Romanes, _Animal Intelligence_, p. 478.]

[Footnote 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._]

[Footnote 83: Palgrave, _Narrative of a Year's Journey through Central
and Eastern Arabia_, i. 40.]

[Footnote 84: Watson, _op. cit._ p. 26 _sq._]

[Footnote 85: Aas, _Sjaeleliv og intelligens hos Dyr_, i. 72.]

[Footnote 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 {39} among
savage[87] 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," {40} but 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]

[Footnote 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 [H.]adhramaut_, p. 157
(Bedouins). Winterbottom, _Native Africans in the Neighbourhood of
Sierra Leone_, i. 211.]

[Footnote 88: Seneca, _De ira_, iii. 28.]

[Footnote 89: Plutarch, _De cohibenda ira_, 12.]

[Footnote 90: Bacon, 'Essay LVII. Of Anger,' in _Essays_, p. 514.]

[Footnote 91: Bain, _Emotions and the Will_, p. 177.]

[Footnote 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.

[Footnote 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 {41} determinant. 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. {42} Hiram 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.

[Footnote 94: Shaftesbury, 'Inquiry concerning Virtue or Merit,' ii.
2. 2, in _Characteristicks_, ii. 145.]

[Footnote 95: Butler, 'Sermon VIII.--Upon Resentment,' _op. cit._
p. 457.]

[Footnote 96: Adam Smith, _Theory of Moral Sentiments_, p. 113.]

[Footnote 97: Spencer, _Principles of Ethics_, i. 361.]

[Footnote 98: Junker, _Travels in Africa during the Years 1882-1886_,
p. 85.]

[Footnote 99: Hiram Stanley, _op. cit._ p. 180. _Cf._ also Guyau,
_Esquisse d'une Morale sans obligation ni sanction_, p. 162
_sq._]

[Footnote 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 {43} as "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]

[Footnote 101: Notice, for instance, Michelangelo's Moses.]

[Footnote 102: Polybius, _Historiae_, vi. 6.]

[Footnote 103: Hartley, _Observations on Man_, i. 520.]

[Footnote 104: Adam Smith, _op. cit._ _passim_.]

[Footnote 105: Butler, _op. cit._ p. 458.]

[Footnote 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 {44} carelessly 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]

[Footnote 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 [Hv]ammurabi, "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]

[Footnote 108: _Laws of [Hv]ammurabi_, 229 _sq._]

[Footnote 109: _Ibid._ 209 _sq._]

[Footnote 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.

{45} Among the Atkha Aleuts, the punishment for certain offences was
sometimes carried so far as to include the wife of the offender.[111]
Among the E[(w]e-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]

[Footnote 111: Petroff, 'Report on Alaska,' in _Tenth Census of the
United States_, p. 158.]

[Footnote 112: Ellis, _E[(w]e-speaking Peoples of the Slave Coast_,
p. 225.]

[Footnote 113: Decle, _Three Years in Savage Africa_, p. 153.]

[Footnote 114: Petherick, _Travels in Central Africa_, ii. 3.]

[Footnote 115: Ratzel, _History of Mankind_, ii. 445.]

[Footnote 116: Sibree, _The Great African Island_, p. 181. Ellis,
_History of Madagascar_, i. 174, 175, 193.]

[Footnote 117: Crawfurd, _op. cit._ i. 82.]

[Footnote 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 {46} were 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 {47} outlawed, 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.

[Footnote 119: Douglas, _Society in China_, p. 71 _sq._ _Ta Tsing Leu
Lee_, sec. ccliv. p. 270.]

[Footnote 120: Bancroft, _Native Races of the Pacific States_, ii. 459.]

[Footnote 121: Meursius, _Themis Attica_, ii. 2, in Gronovius,
_Thesaurus Graecarum Antiquitatum_, v. 1968.]

[Footnote 122: Aristotle, _De republica Atheniensium_ 1. _Cf._
_ibid._ 20.]

[Footnote 123: Curtius Rufus, _De gestis Alexandri Magni_, vi. 11. 20.]

[Footnote 124: Dionysius of Halicarnassus, _Antiquitates Romanae_,
viii. 80.]

[Footnote 125: _Ibid._ viii. 80.]

[Footnote 126: _Codex Iustinianus_, ix. 47. 22.]

[Footnote 127: _Ibid._ ix. 8. 5.]

[Footnote 128: Laws of Cnut, ii. 77. _Cf._ Lappenberg, _History of
England under the Anglo-Saxon Kings_, ii. 414; Wilda, _op. cit._ p. 906.]

[Footnote 129: _Leges Edwardi Confessoris_, 19.]

[Footnote 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._]

[Footnote 131: Eicken, _op. cit._ p. 573.]

[Footnote 132: _Ibid._ p. 573.]

[Footnote 133: Du Boys, _Histoire du droit criminel des peuples
modernes_, ii. 236.]

[Footnote 134: Hertz, _Voltaire und die französische Strafrechtspflege
im achtzehnten Jahrhundert_, p. 27.]

[Footnote 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, accessories {48} 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.

[Footnote 136: de Groot, _Religious System of China_ (vol. ii. book)
i. 539.]

[Footnote 137: Kames, _Sketches of the History of Man_, iv. 148.]

[Footnote 138: Plutarch, _De sera numinis vindicta_, 16. _Cf._
Dionysius of Halicarnassus, _op. cit._ viii. 80.]

[Footnote 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 {49} punish 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] Cr[oe]sus 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 {50}
rescuing 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 {51} account of the sin of its first
parents, the doctrine of collective responsibility has reached its pitch.

[Footnote 140: St. John, _Life in the Forests of the Far East_, i. 63.]

[Footnote 141: de Groot, _op. cit._ (vol. iv. book) ii. 432, 435.
Davis, _China_, ii. 34 _sq._]

[Footnote 142: de Groot, _op. cit._ (vol. iv. book) ii. 452.]

[Footnote 143: Griffis, _Mikado's Empire_, p. 472.]

[Footnote 144: _Rig-Veda_, vii. 86. 5. _Cf._ _Atharva-Veda_, v. 30. 4;
x. 3. 8.]

[Footnote 145: _Rig-Veda_, ii. 28. 9. _Cf._ _ibid._ vi. 51. 7;
vii. 52. 2.]

[Footnote 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._]

[Footnote 147: Hesiod, _Opera et dies_, 240 _sqq._]

[Footnote 148: Herodotus, i. 91.]

[Footnote 149: _Ibid._ vii. 197.]

[Footnote 150: Euripides, _Hippolytus_, 831 _sq._]

[Footnote 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.]

[Footnote 152: _Joshua_, vii. 1.]

[Footnote 153: _1 Samuel_, ii. 27 _sqq._]

[Footnote 154: _2 Samuel_, xxi. 1 _sqq._]

[Footnote 155: _Deuteronomy_, i. 37; iii. 26; iv. 21. _2 Kings_,
xxiii. 26; xxiv. 3. _Jeremiah_, xv. 4 _sqq._]

[Footnote 156: _Exodus_, xx. 5; xxiv. 7, _Numbers_, xiv. 18.
_Deuteronomy_, v. 9. _Cf._ _Leviticus_, xxvi. 39.]

[Footnote 157: _Ecclesiasticus_, xli. 6. _Cf._ _ibid._ xvi. 4;
xli. 5, 7 _sqq._]

[Footnote 158: _Wisdom of Solomon_, iii. 16. _Cf._ _ibid._ iii. 12,
13, 17 _sqq._]

[Footnote 159: Eicken, _op. cit._ p. 572.]

[Footnote 160: Lecky, _History of Rationalism in Europe_, ii. 37 n.]

[Footnote 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]

[Footnote 162: Plutarch, _De sera numinis vindicta_, 15.]

[Footnote 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 {52} god.[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]

[Footnote 164: _Cf._ Isocrates, _Oratio de pace_, 120; Cicero, _De
natura Deorum_, iii. 38; Nägelsbach, _op. cit._ p. 33 _sq._]

[Footnote 165: _Cf._ Schmidt, _op. cit._ i. 71 _sq._ (ancient
Greeks).]

[Footnote 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, {53} as
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 {54} engaged 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]

[Footnote 167: Ellis, _Polynesian Researches_, i. 401 _sqq._]

[Footnote 168: Taylor, _Te Ika a Maui_, p. 101.]

[Footnote 169: Beauchamp, 'Iroquois White Dog Feast,' in _American
Antiquarian_, vii. 236 _sq._ Hale, 'Iroquois Sacrifice of the White
Dog,' _ibid._ vii. 7.]

[Footnote 170: Beauchamp, _loc. cit._ p. 237 _sq._]

[Footnote 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.]

[Footnote 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._]

[Footnote 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 {55}
that "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]

[Footnote 174: Tylor, _Primitive Culture_, ii. 435.]

[Footnote 175: _Atharva-Veda_, v. 30. 4; x. 3. 8; vii. 64. i. _sq._
_Cf._ Oldenberg, _Religion des Veda_, p. 290.]

[Footnote 176: _Rig-Veda_, x. 36. 9; x. 37. 12.]

[Footnote 177: _Ibid._ x. 164. 3. _Atharva-Veda_, vii. 64. 2. _Cf._
Kaegi, _Rig-Veda_, p. 157; Oldenberg, _op. cit._ pp. 291-298, 319 _sqq._]

[Footnote 178: _Cf._ Hopkins, _Religions of India_ pp. 65 n. 1, 66.]

[Footnote 179: _Atharva-Veda_, vi. 113. 1 _sqq._]

[Footnote 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.).]

[Footnote 181: Hopkins, _op. cit._ p. 196.]

[Footnote 182: Monier Williams, _Br[=a]hmanism and Hind[=u]uism_, p.
347.]

[Footnote 183: _Ibid._ p. 375.]

[Footnote 184: Barth, _Religions of India_, p. 264. _Laws of Manu_,
iii. 206; v. 105, 121, 124; xi. 110, 203, 213.]

[Footnote 185: Stengel, _Die griechischen Kultusaltertümer_, p. 138
_sqq._]

[Footnote 186: Plutarch, _De sera numinis vindicta_, 14.]

[Footnote 187: _Leviticus_, xvi.]

[Footnote 188: _Numbers_, viii. 7; xix. 4-9, 13 _sqq._; xxxi. 23.
_Leviticus_, xvi. 14 _sqq._]

[Footnote 189: _Psalms_, li. 2.]

[Footnote 190: Harnack, _op. cit._ ii. 140 _sqq._]

[Footnote 191: _Catechism of the Council of Trent_, ii. 2. 10, p. 162.]

[Footnote 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] {56} The 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 _[(]âshur_-eve
or at midsummer, _l-[(]an[s.]ara_, for the purpose of purifying men,
animals, and fruit-trees.[200] And just as the Moors, on these {57}
occasions, 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]

[Footnote 193: Edkins, _Religion in China_, p. 134.]

[Footnote 194: Holzman, 'Sünde und Sühne in den Rigvedahymnen und den
Psalmen,' in _Zeitschr. f. Völkerpsychologie_, xv. 9.]

[Footnote 195: Schultz, _op. cit._ ii. 306. _Cf._ Curtiss, _Primitive
Semitic Religion To-day_, p. 124 _sqq._]

[Footnote 196: _Ibid._ ii. 308 _sq._]

[Footnote 197: Bergaigne, _Religion védique_, iii. 163. _Cf._
_Rig-Veda_, x. 132. 5.]

[Footnote 198: Oldenberg, _op. cit._ p. 288.]

[Footnote 199: Georgi, _Russia_, iii. 257.]

[Footnote 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.]

[Footnote 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-[(]âr_, a conditional curse, which is first seated in the
tufts, and {58} from 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]

[Footnote 202: _Deuteronomy_, xi. 29.]

[Footnote 203: Goldziher, _Abhandlungen zur arabischen Philologie_, i.
29. Wellhausen, _Reste arabischen Heidentums_, p. 139, n. 4.]

[Footnote 204: Grimm, _op. cit._ iv. 1690.]

[Footnote 205: _Ibid._ iii. 1227. Wood-Martin, _Traces of the Elder
Faiths of Ireland_ ii, 57 _sq._]

[Footnote 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 India[207] and among the Arabs[208] 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 {59} to 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 {60} has sworn false, his family
as well as himself would have to suffer.

[Footnote 207: _Atharva-Veda_, ii. 7. 5.]

[Footnote 208: Goldziher, _Abhandlungen_, i. 38 _sq._]

[Footnote 209: _Ecclesiasticus_, xxi. 27.]

[Footnote 210: Wood-Martin, _op. cit._ ii. 57 _sq._]

[Footnote 211: Plato, _Leges_, ix. 881.]

[Footnote 212: Plutarch, _Questiones Romanae_, 44.]

[Footnote 213: _Idem_, _Vita Cassi_, 16.]

[Footnote 214: Georgi, _op. cit._ iii. 54 _sq._]

[Footnote 215: Burckhardt, _Bedouins and Wahábys_, p. 73.]

[Footnote 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]

[Footnote 217: Herodotus, vi. 86. _Cf._ Hesiod, _Opera et dies_,
282 _sqq._]

[Footnote 218: Aeschylus, _Eumenides_, 934 _sqq._]

[Footnote 219: Aeschylus (_Eumenides_, 416 _sq._) expressly designates
the Erinyes by the title of "curses" ([Greek: a)rai\]), 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._]

[Footnote 220: _Ecclesiasticus_, xxiii. 11. _Cf._ _ibid._ xli. 5
_sqq._; _Wisdom of Solomon_, iii. 12 _sq._, xii. 11.]

[Footnote 221: Casalis, _Basutos_, p. 305.]

[Footnote 222: Crooke, _Tribes and Castes of the North-Western
Provinces and Oudh_, ii. 287; iii. 444. _Cf._ _ibid._ i. 132.]

[Footnote 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).]

[Footnote 224: Marsden, _History of Sumatra_, p. 240.]

[Footnote 225: Mason, in _Jour. Asiatic Soc. Bengal_,
xxxvii. pt. ii. 137.]

[Footnote 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 {62} effectively 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.

[Footnote 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.]

[Footnote 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 0_s._ 7½_d._, as a fine; and this money
was taken into the interior, to purchase two sickly persons, to be
{63} offered 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.

[Footnote 229: Frazer, _op. cit._ iii. 109 _sq._]

[Footnote 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 {64} they 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 river[234]--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]

[Footnote 231: Frazer, _op. cit._ iii. 112 _sq._]

[Footnote 232: Strabo, xi. 4. 7.]

[Footnote 233: Frazer, _op. cit._ iii. 113.]

[Footnote 234: Herodotus, ii. 39.]

[Footnote 235: Hale, in _American Antiquarian_, vii. 10 _sqq._ Morgan,
_League of the Iroquois_, p. 217 _sq._]

[Footnote 236: Hale, _loc. cit._ p. 10.]

[Footnote 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
Zel[t.]n, 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 {65} by 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.

[Footnote 238: _Leviticus_, xvi. 21.]

[Footnote 239: Seaver, _op. cit._ p. 160.]

[Footnote 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 {66} rule,
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
B[oe]otia, 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 {67} had 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 death[246] 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]

[Footnote 241: Macdonald, _Africana_, i. 96 _sq._]

[Footnote 242: Dorman, _Origin of Primitive Superstitions_, p. 208.]

[Footnote 243: Pausanias, ix. 8. 2.]

[Footnote 244: Eusebius, _Praeparatio Evangelica_, i. 10. 40 (Migne,
_Patrologia_, Ser. Gr. xxi. 85).]

[Footnote 245: Moore, in Cheyne and Black, _Encyclopaedia Biblica_,
iv. 4226.]

[Footnote 246: _Exodus_, xxxii. 32.]

[Footnote 247: _S[=o][t.][=a]h_, 14 A, quoted by Moore, _loc. cit._
col. 4226.]

[Footnote 248: _Sanhedrin_, 39 A, quoted _ibid._ col. 4226.]

[Footnote 249: _4 Maccabaeans_, xvii. 22, quoted _ibid._ col. 4232.]

[Footnote 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 {68} at 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 {69} goat, 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]

[Footnote 251: Réville, _Prolegomena of the History of Religions_,
p. 135.]

[Footnote 252: Baring-Gould, _Origin and Development of Religious
Belief_, i. 387 _sq._]

[Footnote 253: Harnack, _op. cit._ iii. 312 _sqq._]

[Footnote 254: _Ibid._ iii. 307, 315 n. 2.]

[Footnote 255: Schoolcraft, _Indian Tribes of the United States_,
ii. 196.]

[Footnote 256: Codrington, _Melanesians_, p. 127.]

[Footnote 257: Percival, _Land of the Veda_, p. 309 _sq._ _Cf._
Caldwell, _Tinnevelly Shánárs_, p. 37.]

[Footnote 258: Kuenen, _Religion of Israel_, ii. 266 _sq._]

[Footnote 259: _Leviticus_, v. 11 _sqq._]

[Footnote 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 {70} representative 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 {71} sin."[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]

[Footnote 261: _Lun Yü_, vi. 4. _Cf._ _Thâi-Shang_ 4.]

[Footnote 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.]

[Footnote 263: _Digesta_, xlviii. 19. 26. _Cf._ _ibid._ xlviii. 19. 20.]

[Footnote 264: Seneca, _De ira_, ii. 34. _Cf._ Cicero, _De officiis_,
i. 25.]

[Footnote 265: _Deuteronomy_, xxiv. 16. _Cf._ _2 Kings_ xiv. 6.]

[Footnote 266: _Koran_, xvii. 35.]

[Footnote 267: _Laws of Edmund_, ii. 1.]

[Footnote 268: Nordström, _Bidrag till den svenska
samhälls-författningens historia_, ii. 103, 334, 335, 399. Wilda,
_op. cit._ p. 174.]

[Footnote 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 {72} them, 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]

[Footnote 270: _Atharva-Veda_, v. 30. 4. _Cf._ Macdonell, _Vedic
Mythology_, p. 98.]

[Footnote 271: Theognis, 743 _sqq._]

[Footnote 272: Plutarch, _De sera numinis vindicta_ 19. _Cf._ _ibid._
12; Cicero, _De natura Deorum_, iii. 38.]

[Footnote 273: Farnell, _op. cit._ i. 77. Maine, _Ancient Law_, p. 127.]

[Footnote 274: Dionysius of Halicarnassus, _op. cit._ viii. 80.]

[Footnote 275: _Cf._ Montefiore, _op. cit._ p. 220; Kuenen, _op. cit._
ii. 35 _sq._]

[Footnote 276: _Jeremiah_, xxxi. 30.]

[Footnote 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 {74} is 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 Greece[8] 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]

[Footnote 1: Fison, quoted by Codrington, _Melanesians_, p. 147, n. 1.]

[Footnote 2: See _infra_, on Blood-revenge.]

[Footnote 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).]

[Footnote 4: _1 Kings_, ii. 8 _sq._]

[Footnote 5: _Ecclesiasticus_, xxv. 7.]

[Footnote 6: _Cf._ Montefiore, Hibbert Lectures, p. 40.]

[Footnote 7: Maurer, _Bekehrung des Norwegischen Stammes_, ii. 154 _sq._]

[Footnote 8: Maury, _Histoire des religions de la Grèce antique_, i.
383. Schmidt, _Ethik der alten Griechen_, ii. 309 _sqq._]

[Footnote 9: Aristotle, _Rhetorica_, i. 9. 24. _Cf._ Aeschylus,
_Choeophori_, 309 _sqq._; Plato, _Meno_, p. 71; Xenophon,
_Memorabilia_, ii. 6. 35.]

[Footnote 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.]

[Footnote 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 {75} when 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]

[Footnote 12: _Tâo Teh King_, ii. 63. 1. According to _Thâi-Shang_, 4,
a bad man "broods over resentment without ceasing."]

[Footnote 13: Mencius, v. 1. 3. 2.]

[Footnote 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.]

[Footnote 15: _Dhammapada_, i. 5; xv. 197; xvii. 223. _Cf._ _J[=a]taka
Tales_, i. 22; Oldenberg, _Buddha_, p. 298.]

[Footnote 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, {76} in 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]

[Footnote 17: _Leviticus_, xix. 17 _sq._ _Cf._ _Exodus_, xxiii. 4.]

[Footnote 18: _Ecclesiasticus_, xxviii. 2. _Cf._ _ibid._ x, 6;
_Proverbs_, xxv. 21.]

[Footnote 19: Deutsch, _Literary Remains_, p. 58. _Cf._ Katz, _Der
wahre Talmudjude_, p. 11, _sq._]

[Footnote 20: _Koran_, ii. 190: "Whoso transgresses against you,
transgress against him like as he transgressed against you."]

[Footnote 21: _Ibid._ iii. 125. _Cf._ _ibid._ xxiii. 98; xxiv. 22;
xli. 34.]

[Footnote 22: Lane-Poole, _Speeches and Table-Talk of Mohammad_, p. 147.]

[Footnote 23: Goldziher, _Mohammedanische Studien_, i. 15 _sq._]

[Footnote 24: Ameer Ali, _Ethics of Islam_, p. 26 _sqq._]

[Footnote 25: _Ibid._ p. 7. _Idem_, _Life and Teachings of Mohammed_,
p. 280.]

[Footnote 26: Poole, _Studies in Mohammedanism_, p. 226.]

[Footnote 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]

[Footnote 28: Plato, _Crito_, p. 49.]

[Footnote 29: Seneca, _De ira_, i. 5.]

[Footnote 30: _Ibid._ i. 16; ii. 6.]

[Footnote 31: Pliny, _Epistolæ_, ix. 22 (viii. 22).]

[Footnote 32: Seneca, _op. cit._ ii. 34.]

[Footnote 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 {77} to feel
resentment on their own behalf; and so also he was understood by St.
Paul.[36]

[Footnote 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._]

[Footnote 35: _St. Matthew_, xviii. 21 _sq._]

[Footnote 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 {78} is 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.

[Footnote 37: _Laws of Manu_, viii. 316, 346 _sq._ _Cf._ _Gautama_,
xii. 45; _Âpastamba_, i. 9. 25. 5.]

[Footnote 38: Douglas, _Confucianism and Taouism_, p. 204.]

[Footnote 39: 'Merits and Errors scrutinised,' in _Indo-Chinese
Gleaner_, iii. 153.]

[Footnote 40: _St. Matthew_, xviii. 15 _sqq._]

[Footnote 41: Thomas Aquinas, _Summa Theologia_, ii.-ii. 108. 1. 2.
_Cf._ Lactantius, _De ira Dei_, 17.]

[Footnote 42: Aristotle, _Ethica Nicomachea_, ii. 7. 10; iii. 1. 24;
iv. 5. 3 _sqq._]

[Footnote 43: Plutarch, _De invidia et odio_, 5.]

[Footnote 44: Douglas, _op. cit._ p. 257.]

[Footnote 45: _Dhammapada_, i. 15, 17; x. 137 _sqq._]

[Footnote 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 {79} view 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]

[Footnote 47: Butler, 'Sermon IX.--Upon Forgiveness of Injuries,' in
_Analogy of Religion, &c._, p. 469.]

[Footnote 48: Plutarch, _De cohibenda ira_, 11. Montaigne, _Essais_,
ii. 31 (_Oeuvres_, p. 396).]

[Footnote 49: Aristotle, _Ethica Nicomachea_, 5. 6.]

[Footnote 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.

[Footnote 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 {80} to 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
{81} nature, 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
Feuerbach[61] 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 ones[64]--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]

[Footnote 52: _Cf._ Laistner, _Das Recht in der Strafe_, p. 9 _sqq._;
Thonissen, _Le droit pénal de la république Athénienne_, p. 418 _sqq._]

[Footnote 53: Plato, _Protagoras_, p. 324. _Idem_, _Politicus_, p.
293. _Idem_, _Gorgias_, p. 479. _Idem_, _Leges_, ix. 854; xi. 934;
xii. 944.]

[Footnote 54: Aristotle, _Ethica Nicomachea_, ii. 3. 4.]

[Footnote 55: Seneca, _De clementia_, i. 22. _Cf._ _Idem_, _De ira_,
i. 19.]

[Footnote 56: Grotius, _De iure belli et pacis_, ii. 20. 4 _sqq._]

[Footnote 57: Hobbes, _Leviathan_, ii. 28, p. 243.]

[Footnote 58: Montesquieu, _Lettres Persanes_, 81.]

[Footnote 59: Beccaria, _Dei delitti e delle pene_, _passim_.]

[Footnote 60: filangieri, _La scienza della legislazione_, iii. 2. 27,
vol. iv. 13 _sq._]

[Footnote 61: von Feuerbach-Mittermaier, _Lehrbuch des gemeinen in
Deutschland gültigen Peinlichen Rechts_, p. 38 _sqq._]

[Footnote 62: Schopenhauer, _Die Welt als Wille und Vorstellung_,
ii. 683 _sqq._]

[Footnote 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._]

[Footnote 64: See von Feuerbach-Mittermaier, _op. cit._ p. 40.]

[Footnote 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 {82}
opponents, 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.

[Footnote 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 {83} culprit 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?

[Footnote 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.

[Footnote 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.

{84} The 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 {85} confesses 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]

[Footnote 69: _Ta Tsing Leu Lee_, sec. xxv. p. 27 _sq._]

[Footnote 70: Ellis, _History of Madagascar_, i. 386.]

[Footnote 71: Darmesteter, in _Sacred Books of the East_,
iv. p. lxxxvi.]

[Footnote 72: _Laws of Manu_, xi. 229, 231. _Cf._ _ibid._ xi. 228, 230.]

[Footnote 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.]

[Footnote 74: _Ilias_, ix. 502 _sqq._]

[Footnote 75: Montefiore, _op. cit._ pp. 524, 335 n.]

[Footnote 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._]

[Footnote 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 {86} same 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
beinclihedinclihed 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 {87} proscribed 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]

[Footnote 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.]

[Footnote 79: Montefiore, _op. cit._ p. 525 _sqq._]

[Footnote 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).]

[Footnote 81: Wheeler, _History of India_, ii. 475.]

[Footnote 82: _Indo-Chinese Gleaner_, iii. 150, 161, 164. Davis,
_China_, ii. 48.]

[Footnote 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).]

[Footnote 84: Goblet d'Alviella, _Hibbert Lectures on the Origin and
Growth of the Conception of God_, p. 263.]

[Footnote 85: _Psalms_, li. 16 _sq._]

[Footnote 86: Moore, _loc. cit._ col. 4225.]

[Footnote 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 {88}
these 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]

[Footnote 88: Aristotle, _Rhetorica_, ii. 3. 5.]

[Footnote 89: Christian, _Caroline Islands_, p. 72.]

[Footnote 90: Adam Smith, _Theory of Moral Sentiments_, p. 138 _sq._]

[Footnote 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 {89} induced 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 {90} than 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 {91} suffering, 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.

[Footnote 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._]

[Footnote 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.]

[Footnote 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 {92} influenced 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 {93} against
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.

[Footnote 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 {94} even 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.

[Footnote 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 {95} origin 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.

[Footnote 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 {96} individuals 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.

[Footnote 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]

[Footnote 99: Ellis, _History of Madagascar_, 376.]

[Footnote 100: Giles, _Strange Stories from a Chinese Studio_, i. 426,
n. 3; ii. 384, n. 63. Doolittle, _Social Life of the Chinese_, ii. 398.]

[Footnote 101: Giles, _op. cit._ i. 305, n. 6. Wells Williams, _Middle
Kingdom_, i. 422.]

[Footnote 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 {97} whole 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]

[Footnote 103: _Rig-Veda_, vii. 35. 4.]

[Footnote 104: _Dînâ-î-Maînôg-î Khirad_ xv. 3.]

[Footnote 105: de Groot, _Religious System of China_ (vol. iv. book)
ii. 435.]

[Footnote 106: _Genesis_, xviii. 32.]

[Footnote 107: Robertson Smith, _Religion of the Semites_, p. 424, n. 1.]

[Footnote 108: Lane, _Modern Egyptians_, pp. 247, 248, 532. Sell, _op.
cit._ pp. 242, 278, 287, 288, 298. _Cf._ Wallin, _Fórsta Resa från
Cairo till Arabiska öknen_, p. 103.]

[Footnote 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 {98} Church."[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]

[Footnote 110: _Catechism of the Council of Trent_, ii. 5. 72.]

[Footnote 111: _Am Urquell_, ii. 101.]

[Footnote 112: Peacock, 'Executed Criminals and Folk-Medicine,' in
_Folk-Lore_, vii. 280.]

[Footnote 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 {99} and 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]

[Footnote 114: Lane-Poole, _Speeches and Table-Talk of Mohammad_,
p. 147.]

[Footnote 115: _Ezekiel_, xviii. 5 _sqq._]

[Footnote 116: _Koran_, ii. 44.]

[Footnote 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.

[Footnote 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 {101}
well 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]

[Footnote 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 {102} disinterestedness, 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 {103}
others." 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]

[Footnote 3: Stuart Mill, _Utilitarianism_, p. 24.]

[Footnote 4: Clarke, _Discourse concerning the Unchangeable
Obligations of Natural Religion_, p. 201.]

[Footnote 5: Kant, _Grundlegung zur Metaphysik der Sitten_, sec. 2
(_Sämmtliche Werke_, iv. 269).]

[Footnote 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.]

[Footnote 7: _Leviticus_, xix. 18. _St. Matthew_, xxii. 39.]

[Footnote 8: _St. Matthew_, vii. 12. _Cf._ _St. Luke_, vi. 31.]

[Footnote 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).]

[Footnote 10: _Lun Yü_, xv. 23. _Cf._ _ibid._ xii. 2; _Chung Yung_,
xiii. 3.]

[Footnote 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]

[Footnote 12: Letourneau, _L'évolution religieuse dans les diverses
races humaines_, p. 553.]

[Footnote 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 {104} act 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 {105} that 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 {106} its
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.

[Footnote 14: Foreman, _Philippine Islands_, p. 185. _Cf._ Hinde, _The
Last of the Masai_, p. 34; Zöller, _Das Togoland_, p. 37.]

[Footnote 15: _Cf._ Jodl, _Lehrbuch der Psychologie_, p. 675.]

[Footnote 16: von Feuerbach, _Aktenmässige Darstellung merkwürdiger
Verbrechen_, i. 249; ii. 473, 479 _sq._ von Lasaulx, _Sühnopfer der
Griechen und Römer_, p. 6.]

[Footnote 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 {107} cheated 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.

[Footnote 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?

{109} That 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.

[Footnote 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 {110} may 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]

[Footnote 2: Leslie Stephen, _Science of Ethics_, p. 243.]

[Footnote 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 {111} disposition 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?

[Footnote 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._).]

[Footnote 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]

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

[Footnote 7: Romanes, _Animal Intelligence_, p. 440.]

[Footnote 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._).]

[Footnote 9: Williams, _Dogs and their Ways_, p. 43.]

[Footnote 10: Sully, _Studies of Childhood_, p. 250.]

The altruistic sentiments of mankind will be treated at {113} length
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, {114} and 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.

[Footnote 11: Darwin, _op. cit._ p. 108.]

[Footnote 12: Melville, _Typee_, p. 297 _sq._]

[Footnote 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."]

[Footnote 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 {115} is 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.

[Footnote 15: _Cf._ Baring-Gould, _Origin and Developwent of Religious
Belief_, i. 212.]

[Footnote 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 {116} be 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 {117} them fond of, and contract aversions
from their dislikes."[18]

[Footnote 17: Bain, _Emotions and the Will_, p. 268.]

[Footnote 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 {118} felt 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.

[Footnote 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 {119}
regulated 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, [Greek:
to\ no/mimon], shows the close connection between morality and custom;
and so do the words [Greek: e)/thos, ê)/thos], and [Greek: e)thika/],
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]

[Footnote 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._).]

[Footnote 21: Montaigne, _Essais_, i. 22 (_[OE]uvres_, p. 48).]

[Footnote 22: Fison and Howitt, _op. cit._ p. 256 _sq._]

[Footnote 23: Bernau, _Missionary Labours in British Guiana_, p. 60.]

[Footnote 24: Rink, _Greenland_, p. 201 _sq._]

[Footnote 25: Rowley, _Religion of the Africans_, p. 44.]

[Footnote 26: Junod, _Ba-Ronga_, p. 477.]

[Footnote 27: Blunt, _Bedouin Tribes of the Euphrates_, ii. 224.]

[Footnote 28: _Laws of Manu_, ii. 18.]

[Footnote 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.]

[Footnote 30: Caldwell, _Tinnevelly Shanars_, p. 69.]

Disobedience to custom evokes public indignation. In {120} the 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 {121} such 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.

[Footnote 31: Grey, _Journals of Expeditions in North-West and Western
Australia_, ii. 217.]

[Footnote 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._]

[Footnote 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 {122} of 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 {123} of
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.

[Footnote 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 {124} been 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]

[Footnote 35: Martineau, _Types of Ethical Theory_, ii. 29 _sqq._]

[Footnote 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 {125} feeling'
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]


[Footnote 37: Avebury, _Origin of Civilisation_, pp. 421, 426.]

[Footnote 38: See _supra_, p. 118.]

[Footnote 39: Fison and Howitt, _op. cit._ p. 257 n.]

[Footnote 40: Hübbe-Schleiden, _Ethiopien_, p. 184 _sq._]

[Footnote 41: New, _op. cit._ p. 96.]

[Footnote 42: Arbousset and Daumas, _Exploratory Tour to the
North-East of the Colony of the Cape of Good Hope_, p. 322.]

[Footnote 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
{126} it necessary to scrutinise the facts which Lord Avebury has
adduced in support of his conclusion.

[Footnote 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]

[Footnote 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 Paradise {127} 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 {128} wanting 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.

[Footnote 46: Casalis, _Basutos_, p. 304.]

[Footnote 47: Arbousset and Daumas, _op. cit._ p. 389.]

[Footnote 48: Brough Smyth, _Aborigines of Victoria_, ii. 228.]

[Footnote 49: Spencer and Gillen, _Native Tribes of Central
Australia_, p. 46.]

[Footnote 50: Mariner, _Natives of the Tonga Islands_, ii. 159, 163.]

[Footnote 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; {129} and 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]

[Footnote 52: Man, in _Jour. Anthr. Inst._ xii. 92.]

[Footnote 53: Dalton, _Descriptive Ethnology of Bengal_, p. 230.]

[Footnote 54: Veniaminof, quoted by Dall, _Alaska_, p. 398.]

[Footnote 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.]

[Footnote 56: Kolben, _Present State of the Cape of Good Hope_,
i. 301. _Cf._ _ibid._ i. 339.]

[Footnote 57: Quoted by Tyler, _Forty Years among the Zulus_, p. 197.]

[Footnote 58: Zöller, _Kamerun_, ii. 92. _Cf._ _Idem_, _Das Togoland_,
p. 37.]

[Footnote 59: Hinde, _The Last of the Masai_, p. 34. _Cf._ Foreman,
_Philippine Islands_, p. 185.]

[Footnote 60: Dieffenbach, _Travels in New Zealand_, ii. 106.]

[Footnote 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 {130} safely 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.

[Footnote 62: _Cf._ Jodl, _Lehrbuch der Psychologie_, p. 686.]

[Footnote 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
{132} de 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]

[Footnote 1: Hyades and Deniker, _Mission scientifique du Cap Horn_,
vii. 251.]

[Footnote 2: Powers, _Tribes of California_, p. 22.]

[Footnote 3: Forsyth, _Highlands of Central India_, p. 139.]

[Footnote 4: Mariner, _Natives of the Tonga Islands_, ii. 147 _sq._]

[Footnote 5: Collins, _English Colony in New South Wales_, i. 548 _sq._]

{133} Considering, 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.

[Footnote 6: Wundt, _Ethik_, p. 36 (English translation, p. 44).]

[Footnote 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, {134} endeavour 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.

[Footnote 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.

[Footnote 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 {135}
a 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 {136} in 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.

[Footnote 10: _Romans_, iv. 15.]

[Footnote 11: Diogenes Laërtius, _Solon_, 10. Cicero, _Pro S. Roscio
Amerino_, 25.]

[Footnote 12: Griffis, _Religions of Japan_, p. 72.]

[Footnote 13: Bentham, _Deontoiogy_, i. 10.]

[Footnote 14: Ziegler, _Social Ethics_, pp. 22, 75 _sq._]

[Footnote 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 {137} lawgiver," who threatens with punishment, but
promises no reward.[16]

[Footnote 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 {138} beyond 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.

[Footnote 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.

[Footnote 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 {139} from 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 {140} person'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 {141} remembered 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.

[Footnote 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 {142} is 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.

[Footnote 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.

[Footnote 21: Adam Smith, _Theory of Moral Sentiments_, p. 117.]

It is necessary to note that the impartiality which justice {143}
demands 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
{145} concerned, 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."

[Footnote 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]

[Footnote 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.

[Footnote 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 {147} judgment 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]

[Footnote 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
{148} resisting 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.

[Footnote 26: Laurie, _Ethica_, p. 253 _sqq._]

[Footnote 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."

{149} Attempts 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.

[Footnote 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]

[Footnote 29: Alexander, _op. cit._ p. 244.]

[Footnote 30: Grote, _Treatise on the Moral Ideals_, p. 22. _Cf._
Seth, _Study of Ethical Principles_, p. 239.]

[Footnote 31: Muirhead, _Elements of Ethics_, p. 190 n.*]

[Footnote 32: Alexander, _op. cit._ p. 243 _sq._]

[Footnote 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 {150} who 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.

[Footnote 34: Alexander, _op. cit._ p. 244.]

[Footnote 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 {151} opposite 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.

[Footnote 36: Merit, as Professor Alexander puts it (_op. cit._ p.
196), "expresses the interval which separates the meritorious from the
average."]

{152} I 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.

[Footnote 37: Price, _Review of the Principal Questions in Morals_,
p. 204 _sq._]

[Footnote 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 {154} effort 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?

[Footnote 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
{155} eating 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?

[Footnote 40: Ziegler, _op. cit._ p. 85.]

[Footnote 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
{156} refers 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 {157} character of a special mode of conduct. Why
should not the indifferent be allowed to do the same?

[Footnote 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.

[Footnote 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.

{159} We 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.

[Footnote 1: Tucker, _Light of Nature_, ii. 593. _Cf._ also Simmel,
_Einleitung in die Moralwissenschaft_, i. 65 _sqq._]

[Footnote 2: Sully, _Studies of Childhood_, p. 280 _sq._]

[Footnote 3: Leslie, _Among the Zulus and Amatongas_, p. 146.]

[Footnote 4: Hall, _Arctic Researches_, p. 569.]

[Footnote 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 {160}
prevailing 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.

[Footnote 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 {161} the
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 {162} a 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.

[Footnote 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]

[Footnote 8: Marsden, _History of Sumatra_, p. 217.]

[Footnote 9: Ellis, _History of Madagascar_, i. 359.]

[Footnote 10: Beecham, _Ashantee and the Gold Coast_, p. 90 _sq._ _Cf._
Stuhlmann, _Mit Emin Pascha ins Herz von Afrika_, p. 523
(A-l[=u]r).]

[Footnote 11: Reade, _Savage Africa_, p. 52 _sq._]

[Footnote 12: Casalis, _Basutos_, p. 228.]

[Footnote 13: _Ancient Laws of Ireland_, iii. p. lxxxvi. _sq._ Cherry,
_Growth of Criminal Law_, p. 33.]

{163} In 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 {164} Professor
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.

[Footnote 14: Burnell, quoted by Nelson, _View of the Hind[=u] Law_,
p. 136.]

[Footnote 15: Mayne, _Treatise on Hindu Law and Usage_, p. 41.]

[Footnote 16: _Institutiones_, i. 2. 11. _Digesta_, i. 3. 32.]

[Footnote 17: Mackenzie, _Studies in Roman Law_, p. 54.]

[Footnote 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).]

[Footnote 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]

[Footnote 20: Burton, _Pilgrimage to Al-Madinah and Meccah_, ii. 87.]

[Footnote 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]

[Footnote 22: Hegel, _Philosophie des Rechts_, § 211, p. 199.]

[Footnote 23: Rein, _Japan_, p. 314.]

[Footnote 24: Bacon, 'Essay xxxix. Of Custom and Education,' in
_Essays_, p. 372.]

[Footnote 25: Herodotus, iii. 38.]

{165} Many 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 [Greek: no/mos] 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]

[Footnote 26: Mayne, _op. cit._ p. 4.]

[Footnote 27: Ziegler, _Social Ethics_, p. 30. Schmidt, _Ethik der
alten Griechen_, i. 201.]

[Footnote 28: _Institutiones_, i. 2. 9.]

[Footnote 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 {166} of 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.

[Footnote 30: Austin, _Lectures on Jurisprudence_, i. 87, 181, &c.]

[Footnote 31: Cicero, _De officiis_, ii. 12.]

[Footnote 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]

[Footnote 33: Spencer and Gillen, _Native Tribes of Central
Australia_, p. 12 _sqq._]

[Footnote 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;[35] {167} 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.

[Footnote 35: de Groot, _Religious System of China_ (vol. ii. book) i.
769, 789 _sq._]

[Footnote 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.

[Footnote 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 {168} a 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 threaten[38] 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 {169} have 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.

[Footnote 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._).]

[Footnote 39: _Cf._ Stephen, _op. cit._ i. 2.]

[Footnote 40: Bentham, _Theory of Legislation_, p. 309.]

[Footnote 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. {170} We 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]

[Footnote 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]

[Footnote 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.]

[Footnote 44: Kane, _Arctic Explorations_, ii. 128 _sq._]

[Footnote 45: Nansen, _Eskimo Life_, p. 267 _sq._]

[Footnote 46: Adair, _History of the American Indians_, p. 429 _sq._]

{171} In 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 {172} to 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]

[Footnote 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.]

[Footnote 48: Roth, _Ethnological Studies among the North-West-Central
Queensland Aborigines_, pp. 139, 141. Curr, _The Australian Race_,
i. 61 _sq._]

[Footnote 49: Curr, _Squatting in Victoria_, p. 245.]

[Footnote 50: Dawson, _Australian Aborigines_, p. 76.]

[Footnote 51: Burton, _Two Trips to Gorilla Land_, i. 105.]

[Footnote 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 {173} offences;[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]

[Footnote 53: Richardson, _Arctic Searching Expedition_, ii. 26 _sq._]

[Footnote 54: Hale, _op. cit._ p. 208.]

[Footnote 55: Im Thurn, _Among the Indians of Guiana_, p. 213.]

[Footnote 56: Blunt, _Bedouin Tribes of the Euphrates_, ii. 206.]

[Footnote 57: Chavanne, _Sahara_, p. 315. Tristram, _Great Sahara_,
p. 207.]

[Footnote 58: Stewart, _Highlanders of Scotland_, p. 380.]

[Footnote 59: Westermarck, _History of Human Marriage_, p. 61
_sqq._]

[Footnote 60: Steinmetz, _op. cit._ ii. ch. 5.]

[Footnote 61: See _infra_, on Homicide.]

Nearly related to the punishment of expulsion is that of outlawry.
Von Wrede states that the Bedouins of [H.]adhramaut 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]

[Footnote 62: von Wrede, _Reise in [H.]adhramaut_, p. 51.]

[Footnote 63: Powell, 'Wyandot Government,' in _Ann. Rep. Bur. Ethn._
i. 68.]

[Footnote 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.

[Footnote 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-l[=u]r). _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._]

{174} Speaking 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 {175} tribal 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]

[Footnote 66: Spencer and Gillen, _op. cit._ p. 15.]

[Footnote 67: Fraser, _Aborigines of New South Wales_, p. 39.]

[Footnote 68: Taplin, 'Narrinyeri,' in Woods, _Native Tribes of South
Australia_, p. 34 _sq._]

[Footnote 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 {176} seems to have developed, not
out of a previous system of lynch-law, but out of a previous system of
private revenge.

[Footnote 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 {177}
relativement 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.

[Footnote 71: Fison and Howitt, _op. cit._ p. 282.]

[Footnote 72: Hyades and Deniker, _Mission scientifique du Cap Horn_,
vii. 240 _sq._]

[Footnote 73: Boas, 'Central Eskimo,' in _Ann. Rep. Bur. Ethn._ vi. 582.]

[Footnote 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 {178} it. 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, {180} which make it
desirable to restrict it within reasonable limits.

[Footnote 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).]

[Footnote 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.]

[Footnote 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 Him[=a]l[=a] 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).]

[Footnote 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).]

[Footnote 79: _Cf._ Tissot, _Le droit pénal_, i. 226; Steinmetz,
_Ethnol. Studien zur ersten Entwicklung der Strafe_, i. 401;
Makarewicz, _op. cit._ p. 13.]

[Footnote 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._]

[Footnote 81: Browne, _Christian Morals_, iii. 12, p. 94.]

[Footnote 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 {181} poor
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]

[Footnote 83: Steinmetz, _Rechtsverhältnisse_, p. 311. _Cf._ Brunner,
_Deutsche Rechtsgeschichte_, i. 165.]

[Footnote 84: Ellis, _Tour through Hawaii_, p. 429.]

[Footnote 85: _Emin Pasha in Central Africa_, p. 86.]

[Footnote 86: von Martius, _op. cit._ i. 132.]

[Footnote 87: Casalis, _op. cit._ p. 226.]

[Footnote 88: Leist, _Græco-italische Rechtsgeschichte_, p. 372.]

[Footnote 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
{182} act 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]

[Footnote 90: Kemble, _Saxons in England_, i. 268 _sq._]

[Footnote 91: Raffles, _History of Java_, ii. p. ccxxxvii.]

[Footnote 92: Crawfurd, _History of the Indian Archipelago_, iii. 120.]

[Footnote 93: Mason, in _Jour. Asiatic Soc. Bengal_, xxxvii. pt. li.
145. _Cf._ MacMahon, _Far Cathay and Farther India_, p. 188.]

[Footnote 94: Casalis, _op. cit._ p. 226.]

[Footnote 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 {183} no 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]

[Footnote 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._]

[Footnote 97: von Haxthausen, _Transcaucasia_, p. 411.]

[Footnote 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.]

[Footnote 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.]

[Footnote 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 {184} others 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.

[Footnote 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.]

[Footnote 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 E[(w]e-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).]

[Footnote 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).]

[Footnote 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 {185} to 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]

[Footnote 105: Fraser, _Aborigines of New South Wales_, p. 40 _sq._]

[Footnote 106: Bradbury, _Travels in the Interior of America_, p. 168.]

[Footnote 107: Raffles, _op. cit._ ii. p. ccxxxvii.]

[Footnote 108: Elphinstone, _Kingdom of Caubul_, ii. 105 _sq._]

[Footnote 109: Macdonald, in _Jour. Anthr. Inst._ xxii. 108.]

[Footnote 110: Cooper, _Mishmee Hills_, p. 238.]

[Footnote 111: von Brenner, _op. cit._ p. 212.]

[Footnote 112: Georgi, _Russia_, iii. 137.]

[Footnote 113: Macieiowski, _Slavische Rechtsgeschichte_, ii. 127.]

[Footnote 114: Wilda, _Strafrecht der Germanen_, p. 167. _Lex Salica_,
68. _Laws of Cnut_, i. 53. _Leges Henrici I._ lxxi. 1.]

[Footnote 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.

[Footnote 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, {186} to 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]

[Footnote 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 {187} the 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]

[Footnote 118: Bancroft, _Native Races of the Pacific States_, ii. 454.]

[Footnote 119: Clavigero, _History of Mexico_, i. 358.]

[Footnote 120: _Ibid._ i. 359.]

[Footnote 121: _Ibid._ i. 355.]

[Footnote 122: Bancroft, _op. cit._ ii. 465 _sq._]

[Footnote 123: Garcilasso de la Vega, _First Part of the Royal
Commentaries of the Yncas_, i. 145, 151 _sq._]

[Footnote 124: Wells Williams, _Middle Kingdom_, i. 512.]

[Footnote 125: _Ta Tsing Leu Lee_, sec. ccclix. p. 397.]

[Footnote 126: _Ibid._ sec. ccliv. p. 269 n. [dagger]]

[Footnote 127: Reed, _Japan_, i. 323. Thunberg, _Travels_, iv. 65.]

[Footnote 128: _Exodus_, xxxi. 14.]

[Footnote 129: _Leviticus_, xx. 6.]

[Footnote 130: _Ibid._ vii. 25.]

[Footnote 131: _Ibid._ vii. 27.]

[Footnote 132: _Ibid._ xviii. 19.]

[Footnote 133: _Ibid._ xviii. 6 _sqq._]

[Footnote 134: _Laws of Manu_, ix. 232.]

[Footnote 135: _Ibid._ ix. 280.]

[Footnote 136: _Ibid._ ix. 270.]

[Footnote 137: _Ibid._ ix. 277.]

[Footnote 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, {188} sheep-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.

[Footnote 139: Pollock and Maitland, _op. cit._ ii. 511.]

[Footnote 140: May, _Constitutional History of England_, ii. 595.
Mackenzie, _Studies in Roman Law_, p. 424 _sq._]

[Footnote 141: Pike, _History of Crime in England_, ii. 450.]

[Footnote 142: _Ibid._ ii. 451. Stephen, _History of the Criminal Law
of England_, i. 474.]

[Footnote 143: Pike, _op. cit._ ii. 451. Stephen, _op. cit._ i. 474.]

[Footnote 144: Stephen, _op. cit._ i. 475.]

[Footnote 145: _Ibid._ i. 475.]

[Footnote 146: For the manner in which this torture was inflicted, see
Andrews, _Old-Time Punishments_, p. 203 _sq._]

[Footnote 147: _Ibid._ p. 198. Stephen, _op. cit._ i. 477.]

[Footnote 148: Andrews, _op. cit._ p. 192.]

[Footnote 149: Holinshed, _Chronicles of England, &c._ i. 310. Thomas
Smith, _Commonwealth of England_, p. 198.]

[Footnote 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).]

[Footnote 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.

{189} Among 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 Wagogo[164] 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, {190} and 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]

[Footnote 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).]

[Footnote 153: Cranz, _op. cit._ i. 177.]

[Footnote 154: Petroff, _loc. cit._ p. 152.]

[Footnote 155: Turner, _Samoa_, p. 178. Chalmers, _Pioneering in New
Guinea_, p. 179.]

[Footnote 156: Marsden, _op. cit._ p. 389.]

[Footnote 157: Dalton, _op. cit._ p. 45. Stewart, in _Jour. As. Soc.
Bengal_, xxiv. p. 627.]

[Footnote 158: Griffith, _ibid._ vi. 332.]

[Footnote 159: Distant, in _Jour. Anthr. Inst._ iii. 6.]

[Footnote 160: Laing, _Travels_, p. 365.]

[Footnote 161: Tucker, _Expedition to Explore the River Zaire_, p. 383.]

[Footnote 162: Bosman, _op. cit._ p. 331.]

[Footnote 163: New, _op. cit._ p. 111.]

[Footnote 164: Beverley, in Steinmetz, _Rechtsverhältnisse_, p. 215.]

[Footnote 165: Lang, _ibid._ p. 259.]

[Footnote 166: Casalis, _op. cit._ p. 228.]

[Footnote 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.

[Footnote 168: Yate, _Account of New Zealand_, p. 105.]

[Footnote 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 {191} to 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.

[Footnote 170: Garcilasso de la Vega, _op. cit._ i. 151 _sq._]

[Footnote 171: _Ta Tsing Leu Lee_, p. lxvii.]

[Footnote 172: _Laws of Manu_, vii. 14, 15, 20-22, 24 _sq._]

[Footnote 173: _Ibid._ vii. 23.]

[Footnote 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 {192} means 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]

[Footnote 175: Günther, _Die Idee der Wiedervergeltung_, i. 211 _sq._
n. 31.]

[Footnote 176: Wright, _History of Domestic Manners and Sentiments in
England during the Middle Ages_, p. 346.]

[Footnote 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._]

[Footnote 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 {193}
which 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]

[Footnote 179: Staunton, in his Preface to _Ta Tsing Leu Lee_,
p. xxvii. _sq._]

[Footnote 180: Wells Williams, _op. cit._ i. 392 _sq._]

[Footnote 181: Stephen, _op. cit._ i. 471. May, _op. cit._ ii. 597.]

[Footnote 182: May, _op. cit._ ii. 597.]

[Footnote 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.

[Footnote 184: _Cf._ Morrison, _Crime and its Causes_, p. 175.]

[Footnote 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 prohibited {194} 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.

[Footnote 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 [_[OE]uvres_, 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."]

{195} Various 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]

[Footnote 187: Ellis, _Tshi-speaking Peoples of the Gold Coast_, p. 166.]

[Footnote 188: Ellis, _History of Madagascar_, i. 374.]

[Footnote 189: Ashe, _Two Kings of Uganda_, p. 293. _Cf._ Wilson and
Felkin, _Uganda and the Egyptian Soudan_, i. 201.]

[Footnote 190: Kollmann, _Victoria Nyanza_, p. 431.]

[Footnote 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 {196} to 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]

[Footnote 192: Garcilasso de la Vega, _op. cit._ i. 145.]

[Footnote 193: Wells Williams, _op. cit._ i. 393.]

[Footnote 194: Griffis, _Religions of Japan_, p. 92. _Cf._ _Idem_,
_Mikado's Empire_, p. 100.]

[Footnote 195: _Cf._ Livy, x. 9; Polybius, vi. 14; Gibbon, _History of
the Decline and Fall of the Roman Empire_, v. 318, 326.]

[Footnote 196: Mackenzie, _Studies in Roman Law_, pp. 408, 409, 414.
Gibbon, _op. cit._ v. 320. _Cf._ Mommsen, _Römisches Strafrecht_, p. 943.]

[Footnote 197: Cherry, _Growth of Criminal Law in Ancient
Communities_, pp. 68, 105.]

[Footnote 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 certain {197} 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]

[Footnote 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."]

[Footnote 200: Ellis, _Tour through Hawaii_, p. 394. _Cf._ Olmsted,
_Incidents of a Whaling Voyage_, p. 248 _sq._; Mauss, in _op. cit._
xxxv. 55.]

[Footnote 201: Haddon, 'Ethnography of the Western Tribes of Torres
Straits,' in _Jour. Anthr. Inst._ xix. 335.]

[Footnote 202: Schürmann, 'Aboriginal Tribes of Port Lincoln,' in
Woods, _Native Tribes of South Australia_, p. 234.]

[Footnote 203: Johnston, _Kilima-njaro Expedition_, p. 425.]

[Footnote 204: See _infra_, on Sexual Morality.]

[Footnote 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
{198} stated 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]

[Footnote 206: _Cf._ Robertson Smith, _Religion of the Semites_,
p. 162 _sq._]

[Footnote 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.]

[Footnote 208: _Laws of Cnut_, ii. 40.]

[Footnote 209: Montesquieu, _De l'esprit des lois_, xii. 4
(_[OE]uvres_, 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 {199} to 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."

[Footnote 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 reference {200} 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?

[Footnote 211: _Cf._ Durkheim, _Division du travail social_, p. 93 _sq._]

[Footnote 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.]

[Footnote 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 {201} is 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 {203} narrow 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."

[Footnote 1: Spencer, _Principles of Ethics_, i. 5.]

[Footnote 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.

[Footnote 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, {204} and 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.

[Footnote 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 {205} persons.
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.

[Footnote 5: Butler, 'Dissertation II. Of the Nature of Virtue,' in
_Analogy of Religion, &c._ p. 336.]

[Footnote 6: Mackenzie, _op. cit._ p. 60. The example is borrowed from
Stuart Mill, _Utilitarianism_, p. 27 note.]

[Footnote 7: Mackenzie, _op. cit._ p. 61. _Cf._ Sidgwick, _Methods of
Ethics_, p. 202, n. 1.]

[Footnote 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 {206} have 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.

[Footnote 9: Sidgwick, _op. cit._ p. 201.]

[Footnote 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 {207} tends 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.

[Footnote 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.

[Footnote 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 {208} nor
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 distinction {209} 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.

[Footnote 13: _Cf._ James Mill, _Fragment on Mackintosh_, p. 376;
Sidgwick, _op. cit._ p. 364.]

[Footnote 14: Stuart Mill, _Utilitarianism_, p. 26.]

[Footnote 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 commission {210}
and acts of omission or forbearance[17] 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.

[Footnote 16: Locke, _op. cit._ ii. 21, 28 (_Philosophical Works_,
p. 218).]

[Footnote 17: Bentham, _op. cit._ p. 72.]

[Footnote 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 {211} he "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.

[Footnote 19: Austin, _op. cit._ i. 438.]

[Footnote 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."

[Footnote 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._).]

[Footnote 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 {212} such
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,"[23] {213} 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]

[Footnote 23: _Cf._ Sidgwick, _op. cit._ p. 202.]

[Footnote 24: Bentham, _op. cit._ p. 84. Austin, _op. cit._ i. 480.
Clark, _op. cit._ pp. 97, 100.]

[Footnote 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 {214} avoid 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 {215} from 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.

[Footnote 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."]

[Footnote 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 {216} depend 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.

[Footnote 28: Thomas Aquinas, _Summa Theologica_, ii.-ii. 10. 1 _sq._]

[Footnote 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 {218} as 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]

[Footnote 1: von Martius, _Beiträge zür Ethnographie Amerika's_,
i. 693 _sq._]

[Footnote 2: Im Thurn, _Among the Indians of Guiana_, p. 214.]

[Footnote 3: Adair, _History of the American Indians_, p. 150.]

[Footnote 4: Rautanen, in Steinmetz, _Rechtsverhältnisse_, p. 341.]

[Footnote 5: Sorge, _ibid._ p. 418.]

[Footnote 6: Kohler, in _Zeitschr. f. vergl. Rechtswiss._ xiv. 443.
See also _Idem_, _Shakespeare vor dem Forum der Jurisprudenz_, p.
188.]

[Footnote 7: Fisher, in _Jour. Asiatic Soc. Bengal_, ix. 835.]

[Footnote 8: Rohde, _Psyche_, pp. 237, 238, 242.]

[Footnote 9: Wilda, _Strafrecht der Germanen_, p. 174.]

[Footnote 10: _Snorri Sturluson_, 'Gylfaginning,' 50, in _Edda_, p.
59. _Cf._ Brunner, _Forschungen zur Geschichte des deutschen und
französischen Rechtes_, p. 489.]

[Footnote 11: Pollock and Maitland, _History of English Law before the
Time of Edward I._ ii. 482.]

[Footnote 12: _Leges Henrici I._ xc. 7.]

[Footnote 13: Pollock and Maitland, _op. cit._ ii. 471.]

{219} Among 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]

[Footnote 14: Macpherson, _Memorials of Service in India_, p. 82.]

[Footnote 15: Crawfurd, _History of the Indian Archipelago_, iii. 123.
Ellis, _E[(w]e-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]

[Footnote 16: Scott Robertson, _Káfirs of the Hindu-Kush_, p. 440.]

[Footnote 17: Parkyns, _Life in Abyssinia_, ii. 236 _sqq._]

[Footnote 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).]

[Footnote 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 {220} find 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.

[Footnote 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 Albanians[24] 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 m[oe]urs 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 {221} ancient 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]

[Footnote 21: Kraft, in Steinmetz, _Rechtsverhältnisse_, p. 292.]

[Footnote 22: Bamler, quoted by Kohler, in _Zeitschr. f. vergl.
Rechtswiss._ xiv. 380.]

[Footnote 23: Fritsch, _Die Eingeborenen Süd-Afrika's_, p. 363.]

[Footnote 24: Gop[vc]evi['c], _Oberalbanien und seine Liga_, p. 327.]

[Footnote 25: Miklosich, 'Blutrache bei den Slaven,' in _Denkschriften
der kaiserl. Akademie der Wissensch. Philos.-histor. Classe_, Vienna,
xxxvi. 131.]

[Footnote 26: Leist, _Græco-italische Rechtsgeschichte_, p. 324.
_Ancient Laws of Ireland_, iii. p. cxxiv. For the ancient Teutons, see
_infra_, p. 226.]

[Footnote 27: de Landa, _Relacion de las cosas de Yucatan_, p. 134.]

[Footnote 28: _Koran_, iv. 94. _Cf._ Sachau, _Muhammedanisches Recht
nach Schafiitischer Lehre_, p. 761 _sq._]

[Footnote 29: Hanoteau and Letourneux, _La Kabylie_, iii. 68 _sq._]

[Footnote 30: Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._
iii. 370.]

[Footnote 31: _Deuteronomy_, iv. 42. _Numbers_, xxxv. 11 _sqq._
_Joshua_, xx. 3 _sqq._]

[Footnote 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]

[Footnote 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]

[Footnote 34: Bowdich, _Mission from Cape Castle to Ashantee_, p. 258,
n. [double dagger].]

[Footnote 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 {222} femoral 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-l[=u]r, 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]

[Footnote 36: Grey, _Journals of Expeditions of Discovery in
North-West and Western Australia_, ii. 238 _sq._]

[Footnote 37: Chalmers, _Pioneering in New Guinea_, p. 179.]

[Footnote 38: Burton, _Two Trips to Gorilla Land_, i. 105.]

[Footnote 39: Maclean, _Compendium of Kafir Laws and Customs_,
pp. 113, 67, 60.]

[Footnote 40: Stuhlmann, _Mit Emin Pascha ins Herz von Afrika_, p. 524.]

[Footnote 41: Hinde, _The Last of the Masai_, p. 108.]

[Footnote 42: Macdonald, _Africana_, i. 11.]

[Footnote 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 endeavour {223} 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]

[Footnote 44: Buchanan, _North American Indians_, p. 160 _sq._]

[Footnote 45: Kohler, in _Zeitschr. f. vergl. Rechtswiss._ xiv. 448.]

[Footnote 46: Bamler, quoted by Kohler, _ibid._ xiv. 381.]

[Footnote 47: Merker, quoted by Kohler, _ibid._ xv. 64.]

[Footnote 48: Kohler, _ibid._ xv. 353.]

[Footnote 49: Lang, in Steinmetz, _Rechtsverhältnisse_, p. 261.]

[Footnote 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
{224} person 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]

[Footnote 51: _Ta Tsing Leu Lee_, sec. ccxcii. p. 314.]

[Footnote 52: _Ibid._ sec. cccxix. p. 347. _Cf._ _ibid._ sec. ccxcii.
p. 314.]

[Footnote 53: _Ibid._ sec. cccxiv. p. 338.]

[Footnote 54: _Ibid._ sec. xvi. p. 18.]

It is said in the Laws of [Hv]ammurabi:--"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]

[Footnote 55: _Laws of [Hv]ammurabi_, 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]

[Footnote 56: Goitein, _Das Vergeltungsprincip im biblischen und
talmudischen Strafrecht_, p. 25 _sq._ Keil, _Manual of Biblical
Archæology_, ii. 371.]

[Footnote 57: _Numbers_, xxxv. 26 _sqq._]

According to the Laws of Manu, "he who damages the {225} goods 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]

[Footnote 58: _Laws of Manu_, viii. 288.]

[Footnote 59: _Ibid._ xi. 73 _sqq._]

[Footnote 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]

[Footnote 61: Demosthenes, _Contra Aristocratem_, 71 _sq._ p. 643 _sq._]

[Footnote 62: Aristotle, _De republica Atheniensium_, 57. Farnell,
_Cults of the Greek States_, i. 304.]

[Footnote 63: _Digesta_, xlviii. 8. 14.]

[Footnote 64: von Jhering, _Das Schuldmoment im römischen
Privatrecht_, p. 16. Mommsen, _Römisches Strafrecht_, p. 85.]

[Footnote 65: Mommsen, _op. cit._ p. 85.]

{226} The principle of ancient Teutonic law was, "Qui inscienter
peccat, scienter emendet"--a maxim laid down by the compiler of the
so-called 'Laws of Henry I.,'[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]

[Footnote 66: _Leges Henrici I._ xc. 11.]

[Footnote 67: Pollock and Maitland, _History of the English Law before
the Time of Edward I._ i. 54.]

[Footnote 68: Wilda, _op. cit._ p. 545 _sqq._, 594. _Idem_, _Deutsche
Rechtsgeschichte_, i. 165. Pollock and Maitland, _op. cit._ ii. 471.]

[Footnote 69: Wilda, _op. cit._ p. 578.]

[Footnote 70: Geyer, _Die Lehre von der Nothwehr_, p. 87 _sq._ Trummer
_Vorträge über Tortur, &c._ i. 345. Brunner, _Forschungen_, p. 505 _sq._]

[Footnote 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.]

[Footnote 72: Beaumanoir, _Les coutumes du Beauvoisis_, 69, vol. ii.
483. Esmein, _Histoire de la procédure criminelle en France_, p. 255.]

[Footnote 73: Stephen, _History of the Criminal Law of England_, iii. 77.]

If men at the earlier stages of civilisation generally {227} attach
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]

[Footnote 74: Ellis, _Tshi-speaking Peoples of the Gold Coast_,
pp. 35, 301.]

[Footnote 75: Miss Kingsley, in her Introduction to Dennett's
_Folklore of the Fjort_, p. xxviii.]

[Footnote 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 distance {228} of 2000
_lee_."[78] In these cases the punishment inflicted by human hands is
obviously a reflection of the supposed anger of superhuman
beings.

[Footnote 77: Herodotus, ii. 65. _Cf._ Pomponius Mela, 9.]

[Footnote 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]

[Footnote 79: Selenka, _Sonnige Welten_, p. 210 _sq._]

[Footnote 80: _Cf._ Kaegi, _Rigveda_, p. 66 _sq._; Oldenberg, _Die
Religion des Veda_, p. 289.]

[Footnote 81: _Rig-Veda_, v. 85. 8.]

[Footnote 82: _Ibid._ vii. 86. 6; x. 164. 3.]

[Footnote 83: _Ibid._ vii. 88. 6. _Cf._ Kaegi, _op. cit._ p. 68.]

[Footnote 84: _Laws of Manu_, xi. 45 _sq._ _Cf._ _Vasishtha_, 20.]

[Footnote 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]

[Footnote 86: Farnell, _op. cit._ i. 72.]

The Babylonian psalmist, assuming that one of the {229} gods 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]

[Footnote 87: Zimmern, _Babylonische Busspsalmen_, p. 63.]

[Footnote 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 _[h.]a[t.][t.][=a]th_ [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]
{230} We 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 five[98] or seven[99] 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
{231} unintentional 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]

[Footnote 89: _Psalms_, xix. 12.]

[Footnote 90: Montefiore, _Hibbert Lectures on the Religion of the
Ancient Hebrews_, p. 103. _Cf._ _ibid._ p. 515 _sq._]

[Footnote 91: _Leviticus_, iv. 22 _sqq._; v. 15 _sqq._ _Numbers_,
xv. 24 _sqq._]

[Footnote 92: Moore, 'Sacrifice,' in Cheyne and Black, _Encyclopædia
Biblica_, iv. 4205.]

[Footnote 93: Montefiore, _op. cit._ p. 558.]

[Footnote 94: St. Augustine, _Sermones_, clxxx. 2 (Migne, _Patrologiæ
cursus_, xxxviii. 973).]

[Footnote 95: Gratian, _Decretum_, ii. 22. 2. 3.]

[Footnote 96: _P[oe]nitentiale Bedæ_, v. 3 (Wasserschleben,
_Bussordnungen der abendländischen Kirche_, p. 226). _P[oe]nit.
Egberti_, vi. 3 (_ibid._ p. 238). _P[oe]nit. Pseudo-Theodori_, xxiv. 5
(_ibid._ p. 593).]

[Footnote 97: _P[oe]nit. Theodori_, i. 4. 7 (_ibid._ p. 188).
_P[oe]nit. Bedæ_, iv. 5 (_ibid._ p. 225). _P[oe]nit. Egberti_, iv. 11
(_ibid._ p. 235). According to _P[oe]nit. Pseudo-Theodori_, xxi. 2
(_ibid._ p. 586), the penance was to last for five years.]

[Footnote 98: _P[oe]nit. Hubertense_, 2 (_ibid._ p. 377). _P[oe]nit.
Merseburgense_, 2 (_ibid._ p. 391). _P[oe]nit. Bobiense_, 4 (_ibid._
p. 408). _P[oe]nit. Vindobonense_, 2 (_ibid._ p. 418). _P[oe]nit.
Cummeani_, vi. 2 (_ibid._ p. 478). _P[oe]nit. XXXV. Capitulornm_, 1
(_ibid._ p. 506). _P[oe]nit. Vigilanum_, 27 (_ibid._ p. 529).]

[Footnote 99: _P[oe]nit. Parisiense_, 1 (_ibid._ p. 412). _P[oe]nit.
Floriacense_, 2 (_ibid._ p. 424).]

[Footnote 100: _P[oe]nit. Pseudo-Theodori_, xxi. 18 (_ibid._ p. 588).]

[Footnote 101: _P[oe]nit. Pseudo-Theodori_, xxi. 19 (_ibid._ 588).]

[Footnote 102: Göpfert, _Moraltheologie_, i. 185.]

[Footnote 103: _Lex Salica_ (Harold's text), 71. Brunner,
_Forschungen_, p. 507, n. 1.]

[Footnote 104: Foinitzki, in _Le droit criminel des états européens_,
edited by von Liszt, p. 531.]

[Footnote 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 {232} the 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]

[Footnote 106: Harris, _Highlands of Æthiopia_, ii, p. 94.]

[Footnote 107: von Amira, _Nordgermanische Obligationenrecht_, i. 382.]

[Footnote 108: _Three Early Assize Rolls for the County of
Northumberland_, _sæc. XIII_, p. 98.]

[Footnote 109: Amos, _Ruins of Time_, p. 23.]

[Footnote 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.

[Footnote 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 manslayer {233} 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 {234} oath 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.

[Footnote 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 {235} exclaims:--"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.

[Footnote 113: Sophocles, _[OE]dipus Tyrannus_.]

[Footnote 114: _Idem_, _[OE]dipus 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 {236} misadventure 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 intended[116]--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]

[Footnote 115: Pollock and Maitland, _op. cit._ i. 55; ii. 475, 483.
von Amira, _Nordgermanisches Obligationenrecht_, i. 377 _sq._]

[Footnote 116: Wilda, _op. cit._ i. 345. Brunner, _Forschungen_, p.
500 _sq._ Pollock and Maitland, _op. cit._ ii. 471.]

[Footnote 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._]

[Footnote 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.

[Footnote 119: Burton, _Two Trips to Gorilla Land_, i. 105.]

[Footnote 120: Ellis, _E[(w]e-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, {238} becomes 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 day[124] 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 {239} extent 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 law[130]--is without a parallel in the European
legislation of the present day. Both the French[131] and the
German[132] 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.

[Footnote 121: Adam Smith, _Theory of Moral Sentiments_, p. 152.]

[Footnote 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_.]

[Footnote 123: Kenny, _op. cit._ p. 41.]

[Footnote 124: Stephen, _History of the Criminal Law of England_,
iii. 8.]

[Footnote 125: _Ibid._ iii. 22.]

[Footnote 126: _Ibid._ iii. 83.]

[Footnote 127: Harris, _op. cit._ p. 157.]

[Footnote 128: Stephen, _op. cit._ ii. 113.]

[Footnote 129: Hale, _History of the Pleas of the Crown_, i. 428.]

[Footnote 130: _Lex Wisigothorum_, vi. 5. 6: "Si dum quis calce, vel
pugno, aut quacumque percussione injuriam conatur inferre, homicidii
extiterit occasio, pro homicidio puniatur."]

[Footnote 131: _Code Pénal_, art. 309.]

[Footnote 132: _Strafgesetzbuch_, art. 226.]

[Footnote 133: _Ottoman Penal Code_, art. 177. _Cf._ _ibid._ art. 174.]

[Footnote 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 {240} he 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.

[Footnote 135: Stephen, _op. cit._ iii. 91 _sq._]

[Footnote 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 {241} itself 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 Ossetes[140] and Swanetians[141] 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
Pénal[146] is almost the only one that punishes an attempt {242} with
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]

[Footnote 137: Kohler, in _Zeitschr. f. vergl. Rechtswiss._ xv. 353.]

[Footnote 138: Merker, quoted by Kohler, _ibid._ xv. 63.]

[Footnote 139: Kohler, _ibid._ xiv. 418.]

[Footnote 140: Kovalewsky, _Coutume contemporaine_, p. 296 _sq._]

[Footnote 141: Dareste, _Nouvelles études d'histoire du droit_, p. 237.]

[Footnote 142: Kovalewsky, _op. cit._ pp. 291, 299.]

[Footnote 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.]

[Footnote 144: Seeger, _Versuch der Verbrechen in der Wissenschaft des
Mittelalters_, p. 8.]

[Footnote 145: Zachariä, _op. cit._ i. 169; ii. 141. von
Feuerbach-Mittermaier, _Lehrbuch des Peinlichen Rechts_, p. 74.]

[Footnote 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."]

[Footnote 147: Chauveau and Hélie, _Théorie du Code Pénal_, i. 347 _sq._]

[Footnote 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]

[Footnote 149: _Digesta_, xlviii. 8. 7.]

[Footnote 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."]

[Footnote 151: _Ancient Laws of Ireland_, iii. pp. cviii. _sq._ 139.]

[Footnote 152: Cherry, _Growth of Criminal Law in Ancient
Communities_, p. 32.]

[Footnote 153: Stephen, _op. cit._ ii. 222 _sq._ Thomas Smith,
_Common-wealth of England_, p. 194 _sq._]

{243} The 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 French[156] and
German[157] 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.

[Footnote 154: See Cohn, _Zur Lehre vom versuchten und unvollendeten
Verbrechen_, i. 6 _sqq._]

[Footnote 155: Stephen, _op. cit._ ii. 224.]

[Footnote 156: _Code Pénal_ art. 3.]

[Footnote 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 French[162] and Italian[163] 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.

[Footnote 158: Seneca, _De beneficiis_, v. 13. _Cf._ _Idem_, _Ad
Serenum_, 7.]

[Footnote 159: Seeger, _Versuch nach römischem Recht_, p. 30.]

[Footnote 160: Stephen, _op. cit._ ii. 225.]

[Footnote 161: Harris, _Principles of the Criminal Law_, p. 209 n. _c._]

[Footnote 162: Stephen, _op. cit._ ii. 225.]

[Footnote 163: Alimena, in _Le droit criminel des états européens_,
ed. by von Liszt, p. 123.]

[Footnote 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 {244} things 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]

[Footnote 165: Seeger, _Versuch nach römischem Recht_, p. 49.]

[Footnote 166: Chauveau and Hélie, _op. cit._ i. 357 _sqq._ Stephen,
_op. cit._ ii. 226.]

[Footnote 167: Holmes, _Common Law_. p. 67 _sq._]

[Footnote 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 p[oe]nam nemo patitur."[169]

[Footnote 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 {245} have 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.

[Footnote 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.

[Footnote 171: _Ta Tsing Leu Lee_, sec. cclxxxiv. p. 305.]

[Footnote 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 {246} to 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] {247} M. 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]

[Footnote 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_.]

[Footnote 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.]

[Footnote 175: Rossi, _Traité de droit pénal_, ii, 318.]

[Footnote 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 {248}
ages. "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]

[Footnote 177: Hopkins, _Religions of India_, p. 319.]

[Footnote 178: Douglas, _Confucianism and Taouism_, p. 270.]

[Footnote 179: _Thâi-Shang_, 4.]

[Footnote 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.]

[Footnote 181: _Koran_, ii. 225. _Cf._ Ameer Ali, _Ethics of Islâm_,
p. 26.]

[Footnote 182: Schechter, in Montefiore, _op. cit._ p. 558. _Cf._
Deutsch, _Literary Remains_, p. 52.]

[Footnote 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."]

[Footnote 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
{250} observer'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]

[Footnote 1: Romanes, _Mental Evolution in Animals_, p. 352. Perty,
_Seelenleben der Thiere_, p. 67. Brehm, _From North Pole to Equator_,
p. 298.]

[Footnote 2: _Cf._ Lloyd Morgan, _Animal Life and Intelligence_, p. 399.]

[Footnote 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.

[Footnote 4: Romanes, 'Conscience in Animals,' in _Quarterly Journal
of Science_, xiii. 156 _sq._]

[Footnote 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]

[Footnote 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 {252} any 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 proclamation {253} 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]

[Footnote 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.]

[Footnote 8: Macrae, 'Account of the Kookies,' in _Asiatick
Researches_, vii. 189.]

[Footnote 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.]

[Footnote 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 {254} between 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 {255} mentioned 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.

[Footnote 11: Casati, _Ten Years in Equatoria_, i. 176.]

[Footnote 12: Polack, _Manners and Customs of the New Zealanders_,
i. 240.]

[Footnote 13: von Amira, _Thierstrafen und Thierprocesse_, p. 30.]

[Footnote 14: Munzinger, _Die Sitten und das Recht der Bogos_, p. 83.]

[Footnote 15: Newbold, _British Settlements in the Straits of
Malacca_, ii. 257.]

[Footnote 16: _Exodus_, xxi. 28 _sq._ _Leviticus_, xx. 15 _sq._]

[Footnote 17: _ Vendîdâd_, xiii. 31. _Cf._ _ibid._ xiii. 32 _sqq._;
_Yasts_, xxiv. 44.]

[Footnote 18: Plato, _Leges_, ix. 873.]

[Footnote 19: Chambers, _Book of Days_, i. 127. Pertile, 'Gli animali
in giudizio,' in _Atti del R. Instituto Veneto_, ser. vi. vol. iv. 139. ]

[Footnote 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.]

[Footnote 21: See Chambers, _op. cit._ i. 127 _sq._]

[Footnote 22: Marlinengo-Cesaresco, _Essays in the Study of
Folk-Songs_, p. 183 _sq._]

[Footnote 23: Desmaze, _Les pénalités anciennes_, p. 31 _sq._]

[Footnote 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 {256} animal 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.

[Footnote 25: _Ibid._ pp. 4, 47 _sqq._]

[Footnote 26: Pertile, _loc. cit._ p. 148.]

[Footnote 27: _Cf._ Brunner, _Forschungen zur Geschichte des deutschen
und französischen Rechtes_, p. 517 _sqq._]

[Footnote 28: Plutarch, _Vita Solonis_, 24. Xenophon, _Historiæ
Græcæ_, ii. 4. 41.]

[Footnote 29: _Institutiones_, iv. 9. _Digesta_, ix. 1.]

[Footnote 30: _Lex Salica_ (cod. i.), 36. _Lex Ripuariorum_, 46.
Grimm, _Deutsche Rechtsalterthümer_, p. 664 _sqq._ Brunner,
_Forschungen_, p. 513 _sqq._]

[Footnote 31: _Ancient Laws of Ireland_, i. 161; iv. 177, 179, 181.
_Welsh Laws_, iv. i. 17 (_Ancient Laws and Institutes of Wales_,
p. 391).]

[Footnote 32: Macieiowski, _Slavische Rechtsgeschichte_, iv. 333.]

[Footnote 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.]

[Footnote 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 {257}
who 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
opinion[44] 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] {258} and the animal "principal"
was punished more severely than the "accessories.[50]

[Footnote 35: Leibniz, _Essais de Theodicée_, p. 182 _sq._ Lessona,
quoted by d'Addosio, _Bestie delinquenti_, p. 145.]

[Footnote 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).]

[Footnote 37: Gratian, _Decretum_, ii. 15. 1. 4. _Cf._ _Mishna_, fol.
54, quoted by Rabbinowicz, _Législation criminelle du Talmud_, p. 116.]

[Footnote 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._]

[Footnote 39: Thonissen, _Le droit pénal de la république Athénienne_,
p. 414.]

[Footnote 40: Du Boys, quoted by d'Addosio, _op. cit._ p. 139.]

[Footnote 41: Lessona, quoted _ibid._ p. 145.]

[Footnote 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_."]

[Footnote 43: von Amira. _op. cit._ p. 9.]

[Footnote 44: Beaumanoir, _Les coutumes du Beauvoisis_, lxix. 6, vol.
ii. 485 _sq._ Chambers, _op. cit._ i. 127. Lichtenberg, _Vermischte
Schriften_, iv. 481.]

[Footnote 45: _Lex Salica_, edited by Hessels, coll. 209-212, 215.]

[Footnote 46: _Ancient Laws of Ireland_, iv. 179.]

[Footnote 47: Chambers, _op. cit._ i. 128.]

[Footnote 48: _Ancien Coutumier de Bourgogne_, 23 (_Revue historique
de droit français et étranger_, iii. 549): "Il deust hauoir faire
justice del larron."]

[Footnote 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._]

[Footnote 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?

[Footnote 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 {259}
reward 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 {260} deserve
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.

[Footnote 52: _Koran_, vi. 38. Sell, _Faith of Islám_, p. 223.]

[Footnote 53: _Vendîdâd_, xiii. 44 _sqq._]

[Footnote 54: See Grimm, _Reinhart Fuchs_, p. i. _sqq._]

[Footnote 55: Ralston, _Songs of the Russian People_, p. 315. Wuttke,
_Der deutsche Volksaberglaube der Gegenwart_, p. 428.]

[Footnote 56: Ralston, _op. cit._ p. 318.]

[Footnote 57: Michelet, _Origines du droit français_, pp. 76, 279
_sq._ Chambers, _op. cit._ i. 129.]

[Footnote 58: Porphyry, _De abstinentia ab esu animalium_, iii. 6.]

[Footnote 59: Benoît, quoted by d'Addosio, _op. cit._ p. 214.]

[Footnote 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
p[oe]næ, et huic quidem maxime simile. Unde bestias etiam a Deo
punitas, aut p[oe]nas certas lege illis constitutas, cernimus."]

[Footnote 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
commanded {261} 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 {262} a 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]

[Footnote 62: Macrae, in _Asiatick Researches_, vii. 189 _sq._]

[Footnote 63: Dawson, _Australian Aborigines_, p. 53.]

[Footnote 64: Robertson, _History of America_, i. 351 _sq._]

[Footnote 65: Im Thurn, _op. cit._ p. 354.]

[Footnote 66: Oldenberg, _Religion des Veda_, p. 518.]

[Footnote 67: Herodotus, vii. 35.]

[Footnote 68: _Ibid._ i. 190.]

[Footnote 69: Pausanias, vi. 11. 6. _Cf._ _ibid._ v. 27. 10.]

[Footnote 70: Frazer, _Pausanias_, ii. 371.]

[Footnote 71: Aristotle, _De republica Atheniensium_, 57. Pausanias,
i. 28. 10.]

[Footnote 72: Demosthenes, _Contra Aristocratem_, 76, p. 645.]

[Footnote 73: Plato, _Leges_, ix. 873 _sq._]

[Footnote 74: See Trummer, _Vorträge über Tortur, &c._ i. 376 _sq._
Brunner, _Forschungen_, p. 521 _sqq._]

[Footnote 75: _Laws of Alfred_, ii. 13.]

[Footnote 76: Coke. _Third Part of the Institutes of the Laws of
England_, p. 57.]

[Footnote 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 {263} away 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 {264} no 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]

[Footnote 78: _Lex Ripuariorum_, lxx. 1.]

[Footnote 79: Liebrccht, _Zur Volkskund_, p. 313.]

[Footnote 80: Salvado, _Mémoires historiques sur l'Australie_,
p. 260 _sq._]

[Footnote 81: Nansen, _Eskimo Life_, p. 213 _sq._]

[Footnote 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._]

[Footnote 83: Im Thurn, _op. cit._ p. 354.]

[Footnote 84: See Frazer, _Golden Bough_, i. 169 _sqq._]

[Footnote 85: Pausanias, i. 28. 11.]

[Footnote 86: Pollock and Maitland, ii. 474.]

[Footnote 87: Bracton, _De Legibus et Consuetudinibus Angliæ_, fol.
116, vol. ii. 236 _sq._]

[Footnote 88: Holmes, _Common Law_, p. 25.]

[Footnote 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."]

[Footnote 90: Coke, _op. cit._ p. 57. Hale, _History of the Pleas of
the Crown_, i. 422. Stephen, _op. cit._ iii. 78.]

[Footnote 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._]

[Footnote 92: Britton, i. 2. 14, vol. i. 16.]

[Footnote 93: Hale, _op. cit._ i. 422.]

[Footnote 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 recognising
{265} 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 {266} not 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]

[Footnote 95: Stephen, _op. cit._ ii. 97 _sq._]

[Footnote 96: Erskine-Rankine, _Principles of the Law of Scotland_,
p. 546.]

[Footnote 97: Bishop, _Commentaries on the Criminal Law_, § 368, vol.
i. 209.]

[Footnote 98: Italian _Codice Penale_, art. 53. Spanish _Código Penal
reformado_, art. 8, § 2.]

[Footnote 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.]

[Footnote 100: German _Strafgesetzbuch_, art. 55.]

[Footnote 101: Swedish (Uppström, in _Législation pénale comparée_, p.
483), Finnish (Forsman, _ibid._ p. 565) law.]

[Footnote 102: French, Belgian, Ottoman law (Rivière, _ibid._ p. 7).]

[Footnote 103: _Code Pénal_, art. 66 _sqq._]

[Footnote 104: Stephen, _op. cit._ ii. 98. Kenny, _Outlines of
Criminal Law_, p. 50.]

[Footnote 105: _Strafgesetzbuch_, art. 56.]

[Footnote 106: Dutch law (van Hamel, _loc. cit._ p. 444).]

[Footnote 107: Spanish (_Código Penal reformado_, art. 9, § 2),
Swedish (Uppström, _loc. cit._ p. 484), Finnish (Forsman, _loc. cit._
p. 566) law.]

[Footnote 108: Austrian law (Finger, _op. cit._ i. 112).]

[Footnote 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
fourteen[111]--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 {267} amounting 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]

[Footnote 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).]

[Footnote 111: _Ancient Laws of Ireland_, iii. 157.]

[Footnote 112: Katz, _Grundriss des kanonischen Strafrechts_, p. 8.]

[Footnote 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.]

[Footnote 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
{268} under 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 {269} at which full legal responsibility commences. And we
have reason to hope that legislation has not yet said its last word on
the subject.

[Footnote 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._]

[Footnote 116: Lang, in Steinmetz, _Rechtsverhältnisse_, p. 257
(Washambala).]

[Footnote 117: _Iliad_, xxiii. 85 _sqq._ _Cf._ Müller, _Dissertations
on the Eumenides_, p. 95.]

[Footnote 118: Nicole, in Steinmetz, _Rechtsverhältnisse_ p. 132
(Diakité-Sarrakolese). Marx, _ibid._ p. 357 (Amahlubi).]

[Footnote 119: Dennett, in _Jour. African Society_, i. 276.]

[Footnote 120: Wigmore, 'Responsibility for Tortious Acts,' in
_Harvard Law Review_, vii. 447.]

[Footnote 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._]

[Footnote 122: _Grágás_, Vigsloþi, 32, vol. ii. 63.]

[Footnote 123: Wigmore, _loc. cit._ p. 447.]

[Footnote 124: _Three Early Assize Rolls for the County of
Northumberland_, p. 323.]

[Footnote 125: Pollock and Maitland, _op. cit._ ii. 84.]

[Footnote 126: Wigmore, _loc. cit._ p. 447 _sq._ n. 7.]

[Footnote 127: Wilson, _History of Modern English Law_, p. 124.]

[Footnote 128: Foster, _Report of Crown Cases_, p. 70 _sqq._]

[Footnote 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.

[Footnote 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 [(]Abdssalam 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]

[Footnote 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.]

[Footnote 132: _Digesta_, xxvii. 10. 6.]

[Footnote 133: Dobrizhoffer, _Account of the Abipones_, ii. 234.]

[Footnote 134: Keating, _Expedition to the Source of St. Peter's
River_, i. 127.]

[Footnote 135: Charlevoix, _Voyage to North America_, ii. 24 _sq._]

[Footnote 136: Hennepin, _Description de la Louisiane_, Les M[oe]urs
des Sauvages, p. 71 _sq._]

[Footnote 137: Codrington, _Melanesians_, p. 218.]

[Footnote 138: Dennett, in _Jour. African Society_, i. 276.]

[Footnote 139: Merker, quoted by Kohler, in _Zeitschr. f. vergl.
Rechtswiss._ xv. 64.]

[Footnote 140: Decle, _Three Years in Savage Africa_, p. 154.]

[Footnote 141: Burton, _Lake Regions of Central Africa_, ii. 320.]

[Footnote 142: [(]Abdssalam 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 {271} Egyptians, 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]

[Footnote 143: _Cf._ Tylor, _Primitive Culture_, ii. 128.]

[Footnote 144: Andree, _Ethnographische Parallelen_, _Neue Folge_, p. 3.]

[Footnote 145: von Martius, _Beiträge zur Ethnographie Amerika's_,
i. 633.]

[Footnote 146: Schoolcraft, _Indian Tribes of the United States_,
iv. 49.]

[Footnote 147: Tylor, _Primitive Culture_, ii. 130.]

[Footnote 148: Plato, _Phædrus_, p. 244.]

[Footnote 149: Lane, _Manners and Customs of the Modern Egyptians_,
p. 237.]

[Footnote 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]

[Footnote 151: Dawson, _op. cit._ p. 61.]

[Footnote 152: Distant, in _Jour. Anthr. Inst._ iii. 6.]

[Footnote 153: Lang, in Steinmetz, _Rechtsverhältnisse_, p. 257.]

[Footnote 154: Miklosich, _loc. cit._ p. 131.]

{272} In 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]

[Footnote 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
{273} all 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 {274} Esquirol, 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]

[Footnote 156: _Dimetian Code_, ii. 1. 32 (_Ancient Laws and
Institutes of Wales_, p. 200).]

[Footnote 157: _Venedotian Code_, ii. 28. 3 (_ibid._ p. 98).]

[Footnote 158: _Welsh Laws_, iv. 1. 2 (_ibid._ p. 389).]

[Footnote 159: von Amira, _Nordgermanisches Obligationenrecht_, i. 375.]

[Footnote 160: _Grágás_, Vigsloþi, 33, vol. ii. 64.]

[Footnote 161: Stephen, _op. cit._ ii. 151.]

[Footnote 162: Wigmore, _loc. cit._ p. 446.]

[Footnote 163: Bacon, _Maxims of the Law_, reg. 7 (_Works_,
vii. 347 _sq._).]

[Footnote 164: Trummer, _op. cit._ i. 428.]

[Footnote 165: _Ibid._ i. 432.]

[Footnote 166: _Ibid._ i. 438 _sqq._]

[Footnote 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._]

[Footnote 168: Shakespeare, _As you Like it_, iii. 2.]

[Footnote 169: Swift, _Tale of a Tub_, sec. 9 (_Works_, x. 163).]

[Footnote 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
{275} point 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.

[Footnote 171: Smollett, quoted by Tuke, _op. cit._ p. 96.]

[Footnote 172: See also Doughty, _Arabia Deserta_, i. 258 _sq._;
Westermarck, 'Nature of the Arab _[vG]inn_ 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.]

[Footnote 173: Plato, _Leges_, ix. 854. Esquirol, _Des maladies
mentales_, i. 336.]

[Footnote 174: _Digesta_, i. 18. 14; xlviii. 9. 9.]

[Footnote 175: Wood-Renton, _loc. cit._ p. 339.]

[Footnote 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 M[(]Naughten 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 {276} in 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 M[(]Naughten'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 consequence thereof, is he thereby
excused?"--the judges declared that, on the assumption "that he
labours under such partial delusion only, and is not in other respects
insane, . . . he must be considered in the same situation as to
responsibility as if the facts with respect to which the delusion
exists were real. For example, if under the influence of his delusion
he supposes another man to be in the act of attempting to take away
his life, and he kills that man, as he supposes, in self-defence, he
would be exempt from punishment. If his delusion was that the deceased
had inflicted a serious injury to his character and fortune, and he
killed him in revenge for such supposed injury, he would be liable to
punishment."[180] The mistake committed in this answer does not lie in
the conclusion, but in the premise. "Here," as Professor Maudsley
observes, "is an unhesitating assumption that a man, having an insane
delusion, has the power to think and act in regard to it reasonably;
that, at the time of the offence, he ought to have and to exercise the
knowledge and self-control which a sane man would have and exercise,
were the facts with respect to which the delusion exists real; that he
is, in fact, bound to be reasonable in his unreason, sane in his
insanity."[181] Modern science, however, teaches us another lesson. It
has shown that a delusion of the kind suggested never stands alone,
but is in all cases the result of a disease of the brain which
interferes more or less with every function of the mind, and that few
insane persons who do violence can be truly said to have a full
knowledge of the nature and quality of their acts at the time they are
performing {277} them.[182] A perhaps still greater defect in the
doctrine of the fourteen judges is the absence of all reference to the
influence of insane impulses; but with this subject we are not
concerned at present. In this connection my object has been merely to
show that the irresponsibility of the insane, in so far as it depends
on intellectual derangement, has been generally recognised in
proportion as their intellectual derangement has been recognised, and
that the exceptions to this rule are explicable from beliefs which,
though materially affecting the treatment of the insane, have no
reference to the principle of responsibility itself.

[Footnote 177: Howell, _Collection of State Trials_, xvi. 765.]

[Footnote 178: Harris, _Principles of the Criminal Law_, p. 18. Kenny,
_op. cit._ p. 53.]

[Footnote 179: Clark and Finnelly, _Reports of Cases decided in the
House of Lords_, x. 202.]

[Footnote 180: _Ibid._ x. 211.]

[Footnote 181: Maudsley, _op. cit._ p. 97.]

[Footnote 182: Griesinger, _Mental Pathology and Therapeutics_, p. 72
_sq._ Maudsley, _op. cit._ p. 96.]

       *       *       *       *       *

There are temporary states of mind in which the agent no more knows
what he is doing than an idiot or a madman, such as somnambulism,
narcosis, fury. For these states, of course, the rule holds good, that
nobody is responsible for what he does in ignorance, although he may
be responsible for his ignorance. Responsibility in connection with
anger and rage will be more appropriately dealt with in another place.
I shall here restrict myself to the case of drunkenness.

A person is irresponsible, or only partly responsible, for what he
does when drunk, according as he is ignorant of the nature of his act,
as also in so far as the intoxicant contributed to the rise of some
powerful impulse which determined his will. If he commits an offence
in a state of extreme intoxication, he can reasonably be blamed only
for what he did when sober. If he made himself drunk for the purpose
of committing the offence, then the offence is intended, and he is
equally responsible for his act as if he had accomplished it
straightway. If he became intoxicated without any fault of his, for
instance, if he did not know, and could not know, the intoxicating
quality of the liquor which made him drunk, he is free from blame. But
in other cases he is guilty of heedlessness, or rashness, or, if he
foresaw the danger, of blamable indifference to {278} the probable
consequences of his act. This is the clear theory of the question. But
we cannot expect to find it accurately expressed in practice.

Very generally drunkenness is recognised as a ground of extenuation.
We hear from various sources that the North American Indians were
exceedingly merciful to intoxicated offenders. According to
Charlevoix, the Iroquois "suffer themselves to be ill used by drunken
people, without defending themselves, for fear of hurting them. If you
endeavour to shew them the folly of this conduct, they say, 'Why
should we hurt them? They know not what they do.'" Even "if a savage
kills another belonging to his cabin, if he is drunk (and they often
counterfeit drunkenness when they intend to commit such actions),[183]
all the consequence is, that they pity and weep for the dead. 'It is a
misfortune (they say), the murderer knew not what he did.'"[184] James
makes a similar statement with reference to the Omahas.[185] In his
description of the aborigines of Pennsylvania, Blome observes, "It is
rare that they fall out, if sober; and if drunk they forgive it,
saying, it was the drink, and not the man that abused them."[186]
Benjamin Franklin tells us of some Indians who had misbehaved in a
state of intoxication, and in consequence sent three of their old men
to apologise; "the orator acknowledged the fault, but laid it upon the
rum, and then endeavoured to excuse the rum."[187] The detestable
deeds which men did under the influence of _pulcre_, or the native
Mexican wine, the Aztecs attributed to the god of wine or to the wine
itself, and not in the least to the drunken man. Indeed, if anybody
spoke ill of or insulted an intoxicated person, he was liable to be
punished for disrespect to the god by which that person was supposed
to be possessed. {279} Hence, says Sahagun, it was believed, not
without ground, that the Indians made themselves drunk on purpose to
commit with impunity crimes for which they would have been punished if
they had committed them sober.[188]

[Footnote 183: _Cf._ Hennepin, _op. cit._ p. 71.]

[Footnote 184: Charlevoix, _op. cit._ ii. 23, 25. According to Loskiel
(_History of the Mission of the United Brethren among the Indians in
North America_, i. 16), the Iroquois, though they laid all the blame
on the rum, punished severely murder committed in drunkenness.]

[Footnote 185: James, _Expedition from Pittsburgh to the Rocky
Mountains_, i. 265.]

[Footnote 186: Blome, in Buchanan, _North American Indians_, p. 328.]

[Footnote 187: Franklin, _Autobiography_, ch. ix. (_Works_, i. 164).]

[Footnote 188: Sahagun, _Historia general de las cosas de Nueva
España_, i. 22, vol. i. 40.]

Among the Karens of India "men are not unfrequently killed in drunken
broils; but such cases are not allowed by Karen custom to be a cause
of action. No price can be demanded for persons who lose their lives
in such circumstances. It is argued there was no malice, no intention
to kill; and the person who died was perhaps as much to blame as the
man who killed him; and people are not well responsible for what they
do in a state of intoxication."[189] Among the Kandhs, "for wounds,
however serious, given under circumstances of extreme provocation, or
in a drunken squabble, slight compensation is awarded."[190] Among
some of the Marshall Islanders blood-revenge is generally not taken
for an act of homicide which has been committed in drunkenness,
compensation being accepted instead.[191] So, also, according to the
ancient law of the East Frisians, a man who has killed another when
drunk is allowed "to buy off his neck by a sum of money paid to the
king and to the relatives of the slain."[192]

[Footnote 189: Mason, in _Jour. As. Soc. Bengal_, xxxvii. pt. ii. 146.]

[Footnote 190: Macpherson, _Memorials of Service in India_, p. 82.]

[Footnote 191: Jung, quoted by Kohler, in _Zeitschr. f. vergl.
Rechtswiss._ xiv. 446.]

[Footnote 192: _Das Ostfriesische Land-Recht_, iii. 18.]

Roman law regarded drunkenness as a ground of extenuation;[193] the
Jurist Marcian mentions _ebrietas_ as an example of _impetus_, thereby
intimating that a drunken person, when committing a crime, should not
be put on the same footing with an offender acting in cold blood, and
calculating his act with clear consciousness.[194] In Canon law
drunkenness is said to be a ground which deserves the indulgence of a
reasonable judge, because whatever is done in that state is done
without consciousness on the part of the actor.[195] Indeed, had not
God shown {280} indulgence for the offence committed by Lot when
drunk?[196] Partly on the authority of Roman law, partly on that of
Canon law, the earliest practitioners of the Middle Ages followed the
principle that drunkenness is a ground of extenuation; and this
doctrine remained strongly rooted in the later jurisprudence, in which
a drunken person was likened to one under the influence of sleep, or
drunkenness was regarded as equivalent to insanity.[197] It was not
until the sixteenth century that a mere general rule, with regard to
drunkenness as a ground of extenuation, was felt to be insufficient.
Since the time of Clarus, especially, the opinion began to prevail,
that the effect of the highest degree of drunkenness was, indeed, to
exempt from the punishment of _dolus_, but that the offender was still
subject to the punishment of _culpa_, except in two cases, namely,
first, when he inebriated himself intentionally, and with a
consciousness that he might commit a crime while drunk, in which case
the drunkenness was not allowed to be any ground of exculpation at
all; and, secondly, when he became intoxicated without any fault on
his part, as, for example, in consequence of inebriating substances
having been mingled with his wine by his comrades, in which case he
was relieved even from the punishment of _culpa_.[198] These views, in
the main, gradually determined the German practice, and similar
opinions prevailed in the practice of Italy, Spain, Portugal, and the
Netherlands.[199] In the annals of Prussian criminal justice of 1824,
a case is reported of a man who was punished with only one year's
imprisonment for having killed his little child in a state of
drunkenness.[200] In other countries a different principle was acted
upon. An ordinance of Francis I. declared that drunkenness should not
in any case absolve from the ordinary punishment;[201] and this rule
was sanctioned and {281} applied by the later French jurisprudence.[202]
In the Code Pénal, the state of drunkenness is not mentioned as a
mitigating circumstance; yet the rigour of the law has been tempered
by the doctrine that intoxication produces a temporary insanity and
that every kind of insanity is a ground of exculpation.[203] In
England,[204] Scotland,[205] and the United States,[206] a state of
voluntary drunkenness is no excuse for crime. Speaking of a person who
commits homicide when drunk, Hale says that "by the laws of England
such a person shall have no privilege by this voluntary contracted
madness, but shall have the same judgment as if he were in his right
senses."[207] However, in a case where the intention with which the
act was done is the essence of the offence, the drunkenness of the
accused may be taken into account by the jury when considering the
motive or intent with which he acted.[208] According to Chinese law,
also, intoxication does not affect the question of responsibility.[209]

[Footnote 193: _Digesta_, xlviii. 19. 11. 2; xlix. 16. 6. 7. Mommsen,
_Römisches Strafrecht_, p. 1043.]

[Footnote 194: _Digesta_, xlviii. 19. 11. 2.]

[Footnote 195: Gratian, _Decretum_, ii. 15. 1. 7.]

[Footnote 196: _Ibid._ ii. 15. 1. 9.]

[Footnote 197: Mittermaier, _Effect of Drunkenness on Criminal
Responsibility_, p. 6.]

[Footnote 198: Clarus, _Practica criminalis_, qu. lx. nr. 11 (_Opera
omnia_, ii. 462).]

[Footnote 199: Mittermaier, _op. cit._ p. 7. Du Boys, _Histoire du
droit criminel de l'Espagne_, p. 290. Italian _Codice Penale_, art. 46
_sqq._ Spanish _Código Penal reformado_, art. 9, §6.]

[Footnote 200: _Zeitschr. f. die Criminal-Rechts-Pflege in den
Preussischen Staaten_, edited by Hitzig, iii. 60.]

[Footnote 201: Isambert, Decrusy, and Armet, _Recueil général des
anciennes lois françaises_, xii. 527.]

[Footnote 202: Mittermaier, _op. cit._ p. 8.]

[Footnote 203: _Ibid._ p. 12 _sq._ Rivière, _loc. cit._ p. 7.]

[Footnote 204: Stephen, _History of the Criminal Law of England_,
ii. 165.]

[Footnote 205: Hume, _Commentaries on the Law of Scotland_, i. 38.
Erskine-Rankine, _op. cit._ p. 545.]

[Footnote 206: Bishop, _op. cit._ § 400 _sq._ vol. i. 231 _sqq._]

[Footnote 207: Hale, _op. cit._ i. 32.]

[Footnote 208: Harris, _op. cit._ p. 21. Stephen, _Digest_, art. 32,
p. 22.]

[Footnote 209: Giles, _Strange Stories from a Chinese Studio_, ii. 30,
n. 2.]

The great forbearance with which injuries inflicted in a state of
intoxication are treated by various peoples at comparatively low
stages of civilisation, is no doubt, to some extent, due to lack of
foresight. Failing to anticipate the harmful consequences which may
follow from drunkenness, they also fail to recognise the culpability
of indulging in it. The American Indians are notorious drunkards, and
look upon drunkenness as a "delightful frolick."[210] Among the Kandhs
drunkenness is likewise universal, and their "orgies are evidently not
regarded as displeasing to their gods."[211] The belief that an
intoxicated person is possessed with a demon and acts under its
influence, also helps {282} to excuse him.[212] On the other hand,
where the law makes no difference between an offender who is sober and
an offender who is drunk, the culpability of the latter is exaggerated
in consequence of the stirring effect which the outward event has upon
public feelings. So great is the influence of the event that certain
laws, most unreasonably, punish a person both for what he does when
drunk and for making himself drunk. Thus Aristotle tells us that
legislators affixed double penalties to crimes committed in
drunkenness.[213] The same was done by Charles V., in an edict of
1531,[214] and by Francis I. in 1536.[215] Hardly more reasonable is
it that the very society which shows no mercy whatever to the
intoxicated offender, is most indulgent to the act of intoxication
itself when not accompanied by injurious consequences. Of course it
may be argued that drunkenness is blamable in proportion as the person
who indulges in it might expect it to lead to mischievous results. It
has also been said that, if drunkenness were allowed to excuse, the
gravest crimes might be committed with impunity by those who either
counterfeited the state or actually assumed it. Some people even
maintain that inebriation brings out a person's true character. In a
Chinese story we read, "Many drunkards will tell you that they cannot
remember in the morning the extravagances of the previous night, but I
tell you this is all nonsense, and that in nine cases out of ten those
extravagances are committed wittingly and with malice prepense."[216]
However, with all allowance for such considerations, I venture to
believe that in this, as in many other cases where an injury results
from want of foresight, the extreme severity of certain laws is
largely due to the fact that the legislator has been more concerned
with the external deed than with its source.

[Footnote 210: Adair, _History of the American Indians_, p. 5. Catlin,
_North American Indians_, ii. 251. Colden, in Schoolcraft, _Indian
Tribes_, iii. 191. Prescott, _ibid._ iii. 242. James, _op. cit._ i. 265.]

[Footnote 211: Campbell, _Wild Tribes of Khondistan_, p. 165.
Macpherson, _op. cit._ p. 81 _sq._]

[Footnote 212: _Cf._ Dorsey, 'Siouan Cults,' in _Ann. Rep. Bur. Ethn._
xi. 424.]

[Footnote 213: Aristotle, _Ethica Nicomachea_, iii. 5. 8.]

[Footnote 214: Damhouder, _Praxis rerum criminalium_, lxxxiv. 20,
p. 241.]

[Footnote 215: Isambert, Decrusy, and Armet, _op. cit._ xii. 527.]

[Footnote 216: Giles, _op. cit._ ii. 30.]




CHAPTER XI

MOTIVES


NO enlightened and conscientious moral judge can regard his judgment
as final, unless he know the motive, or motives, of the volition by
which his judgment is occasioned. But in ordinary moral estimates
little attention is paid to motives. Men desire that certain acts
should be performed, and that certain other acts should be abstained
from. The conative causes of acts or forbearances are not equally
interesting, and they are often hidden. They are considered only in
proportion as the moral judgment is influenced by reflection.

Take, for instance, acts which are performed from a sense of duty. It
is commonly said that a person ought to obey his conscience. Yet, in
point of fact, by doing so he may expose himself to hardly less
censure than does the greatest villain. The reason for this is not far
to seek. A man's moral conviction is to some extent an expression of
his character, hence he may be justly blamed for having a certain
moral conviction. And the blame which he may deserve on that account
is easily exaggerated, partly because people are apt to be very
intolerant concerning opinions of right and wrong which differ from
their own, partly owing to the influence which external events
exercise upon their minds.

Somewhat greater discrimination is shown in regard to motives
consisting of powerful non-volitional conations which in no way
represent the agent's character, but to which {284} he yields
reluctantly, or by which he is carried away on the spur of the moment.
In many such cases even the law--which regards it as no excuse if a
person commits a crime from a feeling of duty[1]--displays more or
less indulgence to the perpetrator of a harmful deed.

[Footnote 1: _Cf._ the case Reg. _v._ Morby, _Law Reports, Cases
determined in the Queen's Bench Division_, viii. 571 _sqq._]

Thus, in the eye of the law, compulsion is oftentimes a ground of
extenuation. Strictly speaking, a volition can never be compelled into
existence;[2] to act under compulsion really means to act under the
influence of some non-voluntary motive, so powerful that every
ordinary human will would yield to it. As Aristotle puts it, pardon is
given when "a man has done what he ought not to have done through fear
of things beyond the power of human nature to endure, and such that no
man could undergo them. And yet, perhaps, there are some things which
a man must never allow himself to be compelled to do, but must rather
choose death by the most exquisite torments."[3] This principle has
been in some degree recognised by legislation. In many cases of
felony, if a married woman commits the crime in the presence of her
husband, the law of England presumes that she acts under his coercion,
and therefore excuses her from punishment, unless the presumption of
law is rebutted by evidence;[4] but children and servants are not
acquitted if committing crimes by the command of a parent or a
master.[5] Besides the presumption made in favour of married women,
compulsion by threats of injury to person or property is recognised as
an excuse for crime only, as it seems, in cases in which the
compulsion is applied by a body of rebels or rioters, and in which the
offender takes a subordinate part in the offence.[6] In a time of
peace, on the other hand, though a man be violently assaulted, and
have no other possible {285} means of escaping death but by killing an
innocent person, if he commit the act he will be guilty of murder;
"for he ought rather to die himself, than kill an innocent."[7] It has
even been laid down as a general principle that "the apprehension of
personal danger does not furnish any excuse for assisting in doing any
act which is illegal."[8] But the English law relating to _duress per
minas_, and to constraint in general, seems to be harsher both than
most modern continental laws[9] and than Roman law.[10] Some of the
Italian practitioners were even of opinion that a person who committed
homicide by the command of his prince or some other powerful man was
exempt from all punishment.[11] According to the Talmud, any offence
perpetrated under compulsion or in mortal fear is excusable in the eye
of the law, excepting only murder and adultery.[12]

[Footnote 2: Bradley, _Ethical Studies_, p. 40, n. 1.]

[Footnote 3: Aristotle, _Ethica Nicomachea_, iii. i. 7 _sq._]

[Footnote 4: Hale, _History of the Pleas of the Crown_, i. 44 _sqq._
434. Harris, _Principles of the Criminal Law_, p. 25. Stephen,
_History of the Criminal Law of England_, ii. 105 _sq._]

[Footnote 5: Hale, _op. cit._ i. 44. Harris, _op. cit._ p. 26.]

[Footnote 6: Stephen, _op. cit._ ii. 106.]

[Footnote 7: Hale, _op. cit._ i. 51. Harris, _op. cit._ p. 24 _sq._]

[Footnote 8: Denman, C. J., in Reg. _v._ Tyler, reported in Carrington
and Payne, _Reports of Cases argued and ruled at Nisi Prius_, viii. 621.]

[Footnote 9: _Code Pénal_, art. 64; Chauveau and Hélie, _Théorie du
Code Pénal_, i. 534 _sqq._ Italian _Codice Penale_, art. 49. Spanish
_Código Penal reformado_, art. 8, § 9 _sqq._ Finger, _Compendium des
österreichischen Rechtes--Das Strafrecht_, i. 119. Foinitzki, in
_Législation pénale comparée_, edited by von Liszt, p. 530 (Russian
law). _Ottoman Penal Code_, art. 42.]

[Footnote 10: Mommsen, _Römisches Strafrecht_, p. 653. Janka, _Der
strafrechtliche Notstand_, p. 48.]

[Footnote 11: Janka, _op. cit._ p. 60. A different view, however, is
expressed by Covarruvias (_De matrimoniis_, ii. 3. 4. 6 _sq._ [_Opera
omnia_, i. 139]):--"Metus numquam excusat nec a mortali, nec a veniali
crimine. Peccatum maximum malum, nec eo quid grauius."]

[Footnote 12: Benny, _Criminal Code of the Jews according to the
Talmud Massecheth Synhedrin_, p. 125.]

Suppose, again, that the motive of breaking the law is what has been
called "compulsion by necessity." The old instance of shipwrecked
persons in a boat unable to carry them all is a standing illustration
of this principle. Sir James Stephen says, that "should such a case
arise, it is impossible to suppose that the survivors would be
subjected to legal punishment."[13] Yet, in a very similar case,
occurring in the year 1884, they were. Three men and a boy escaped in
an open boat from the shipwreck of the yacht _Mignonette_. After
passing eight days without food, and seeing no prospect of relief, the
men killed the boy, who was {286} on the verge of death, in order to
feed on his body. Four days later they were rescued by a passing ship;
and, on their arrival in England, two of the men were tried for the
murder of the boy. The defence raised was that the act was necessary
for the purpose of self-preservation. But it was held by the Court for
Crown Cases Reserved, that such necessity was no justification of the
act of causing death when there was a distinct intention to take away
the life of another innocent person. However, the sentence of death
was afterwards commuted by the Crown to six months' imprisonment.[14]
In the same case it was even said that if the boy had had food in his
possession, and the others had taken it from him, they would have been
guilty of theft.[15] Bacon's proposition that "if a man steal viands
to satisfy his present hunger, this is no felony nor larceny,"[16] is
not law at the present day.[17] It was expressly contradicted by Hale,
who lays down the following rule:--"If a person, being under necessity
for want of victuals, or clothes, shall upon that account
clandestinely, and _animo furandi_ steal another man's goods, it is
felony and a crime by the laws of England punishable with death; altho
the judge, before whom the trial is, in this case (as in other cases
of extremity) be by the laws of England intrusted with a power to
reprieve the offender before or after judgment, in order to the
obtaining the king's mercy."[18] Britton excuses "infants under age,
and poor people, who through hunger enter the house of another for
victuals under the value of twelve pence."[19] According to the
Swedish Westgöta-Lag, a poor man who can find no other means of
relieving himself and his family from hunger may thrice with impunity
appropriate food belonging to somebody else, but if he does so a
fourth time he is punished for theft.[20] The Canonist says,
"Necessitas legem non {287} habet"[21]--"Raptorem vel furem non facit
necessitas, sed voluntas."[22] This principle has the sanction of the
Gospel. Jesus said to the Pharisees, "Have ye not read what David did,
when he was an hungered, and they that were with him; How he entered
into the house of God, and did eat the shewbread, which was not lawful
for him to eat, neither for them which were with him, but only for the
priests?"[23]

[Footnote 13: Stephen, _op. cit._ ii. 108. So, also, according to
Bacon's _Maxims of the Law_, reg. 5 (_Works_, vii. 344), homicide is
in such a case justifiable.]

[Footnote 14: Reg. _v._ Dudley and Stephens, in _Law Reports, Cases
determined in the Queen's Bench Division_, xiv. 273 _sqq._]

[Footnote 15: _Ibid._ xiv. 276.]

[Footnote 16: Bacon, _Maxims of the Law_, reg. 5 (_Works_, vii. 343).]

[Footnote 17: Reg. _v._ Dudley and Stephens, in _Law Reports, Queen's
Bench Division_, xiv. 286.]

[Footnote 18: Hale, _op. cit._ i. 54.]

[Footnote 19: Britton, i. 11, vol. i. 42.]

[Footnote 20: _Westgöta-Lagen II._ þiufua bolker, 14, p. 164 _sq._]

[Footnote 21: Gratian, _Decretum_, iii. 1. 11.]

[Footnote 22: _Ibid._ iii. 5. 26.]

[Footnote 23: _St. Matthew_, xii. 1 _sqq._]

According to Muhammedan law, the hand is not to be cut off for
stealing any article of food that is quickly perishable, because it
may have been taken to supply the immediate demands of hunger.[24] We
are told that "no Chinese magistrate would be found to pass sentence
upon a man who stole food under stress of hunger."[25] In ancient
Peru, according to Herrera, "he that robb'd without need was banish'd
to the Mountains Andes, never to return without the Inga's leave, and
if worth it paid the value of what he had taken. He that for want
stole eatables only was reprov'd, and receiv'd no other punishment,
but enjoyn'd to work, and threatened, that if he did so again, he
should be chastiz'd by carrying a stone on his back, which was very
disgraceful."[26] We even hear of savages who regard "compulsion by
necessity" as a ground of extenuation. Among the West African Fjort
robbery of plantations, committed in a state of great hunger, is
exempt from punishment in case there is no deception or secrecy in the
matter; however, payment for damage done is expected.[27] Cook says of
the Tahitians:--"Those who steal clothes or arms, are commonly put to
death, either by hanging or drowning in the sea; but those who steal
provisions are bastinadoed. By this practice they wisely vary the
punishment of the same crime, when committed from different
motives."[28]

[Footnote 24: Lane, _Manners and Customs of the Modern Egyptians_,
p. 121.]

[Footnote 25: Giles, _Strange Stories from a Chinese Studio_, ii. 217,
n. 5.]

[Footnote 26: Herrera, _General History of the West Indies_, iv. 337.]

[Footnote 27: Dennett, in _Jour. African Society_, i. 276.]

[Footnote 28: Cook, _Journal of a Voyage round the World_, p. 41 _sq._]

{288} A special kind of self-preservation is self-defence. Here the
ground of justification is not merely the motive of the agent, but
also the wrongness or criminality of the act which he tries to
prevent. Hence the right of inflicting injuries as a necessary means
of self-preservation has been more generally recognised in the case of
self-defence than in other cases of "compulsion by necessity." "Vim vi
repellere" was regarded by the ancients as a natural right,[29] as a
law "non scripta, sed nata";[30] and the same view was taken by the
Canonist.[31] Even in the savage world self-defence and killing in
self-defence are not infrequently justified by custom.[32] But in
other instances the influence of the external event makes itself felt
also in the case of self-defence. Among the Fjort, though a person who
kills another in self-defence is exempt from punishment, he is
expected to pay damages.[33] Among the Hottentots self-defence is
regarded as a mitigating circumstance, but not as an excuse in the
full sense of the word.[34] Among other peoples it is not considered
at all.[35] Among the ancient Teutons a person who committed homicide
in self-defence had to pay _wer_;[36] and in Germany such a person
seems to have been subject to punishment still in the later Middle
Ages.[37] In England, in the thirteenth century, he was considered to
deserve royal pardon, but he also needed it.[38]

[Footnote 29: _Digesta_, xliii. 16. i. 27: "Vim vi repellere licere
Cassius scribit idque ius natura comparatur."]

[Footnote 30: Cicero, _Pro Milone_, 4 (10).]

[Footnote 31: Gratian, _Decretum_, i. 1. 7.]

[Footnote 32: Merker, quoted by Kohler, in _Zeitschr. f. vergl.
Rechtswiss._ xv. 64 (Wadshagga). Lang, in Steinmetz, _Rechtsverhältnisse_,
p. 257 (Washambala).]

[Footnote 33: Dennett, in _Jour. African Society_, i. 276.]

[Footnote 34: Kohler, in _Zeitschr. f. vergl. Rechtswiss._ xv. 353.]

[Footnote 35: Steinmetz, _Rechtsverhältnisse_, p. 50 (Banaka and
Bapuku). Tellier, _ibid._ p. 176 (Kreis Kita). Marx, _ibid._ p. 357
(Amahlubi). Senfft, _ibid._ p. 450 (Marshall Islanders).]

[Footnote 36: Geyer, _Lehre von der Nothwehr_, p. 88 _sqq._ Trummer,
_Vorträge über Tortur, &c._ i. 430. Stemann, _Den danske Retshistorie
indtil Christian V.'s Lov_, p. 659. _Cf._ _Leges Henrici I._ lxxx. 7;
lxxxvii. 6.]

[Footnote 37: Trummer, _op. cit._ i. 428 _sqq._ von Feuerbach-Mittermaier,
_Lehrbuch des Peinlichen Rechts_, p. 64. Brunner observes (_Deutsche
Rechtsgeschichte_, ii. 630), "Nicht das Benehmen des Getöteten war die
causa des Todschlags, sondern nur die feindselige Absicht des
Todschlagers."]

[Footnote 38: Bracton, _De Legibus et Consuetudinibus Angliæ_, fol.
132 b, vol. ii. 366 _sqq._ Pollock and Maitland, _History of English
Law before the Time of Edward I._ ii. 574.]

{289} In self-defence there should of course be a proportion between
the injury which the aggressor intended to inflict and the injury
inflicted on him by the person attacked. The most widely-recognised
ground on which life is allowed to be taken in self-defence is danger
of death. But it is not the exclusive ground. Among the Wakamba "a
thief entering a village at night can be killed"; though, if he is,
the incident generally gives rise to a blood-feud between his family
and the family of the slayer.[39] In Uganda "there is no penalty for
killing a thief who enters an enclosure at night";[40] and among
various peoples at higher stages of culture we likewise find the
provision that a nocturnal thief or house-breaker may be killed with
impunity, though a diurnal thief may not.[41] This law, however, seems
to have been due not so much to the fact that by night the proprietor
had less chance of recovering his property, as to the greater danger
to which he was personally exposed.[42] The Roman Law of the Twelve
Tables allows the diurnal thief also to be killed, in case he defends
himself with a weapon;[43] and, as regards the nocturnal thief, Ulpian
expressly says that the owner of the property is justified in killing
him only if he cannot spare the life of the thief without peril to
himself.[44] The same rule was laid down by Bracton[45] and by
Grotius. The latter observes, "No one ought to be slain directly for
the sake of mere things, which would be done if I were to kill an
unarmed flying thief with a missile, and so recover my goods: but if I
am myself in danger of life, then I may repel the danger even with
danger to the life of another; nor does this cease to hold, however I
have come into that danger, whether by trying to retain my property,
or to {290} recover it, or to capture the thief; for in all these
cases I am acting lawfully according to my right."[46]

[Footnote 39: Decle, _Three Years in Savage Africa_, p. 488.]

[Footnote 40: Ashe, _Two Kings of Uganda_, p. 294.]

[Footnote 41: _Ta Tsing Leu Lee_, sec. cclxxvii. p. 297 (Chinese).
_Exodus_, xxii. 2 _sq._ _Lex Duodecim Tabularum_, viii. 11 _sq._
Plato, _Leges_, ix. 874. _Lex Baiuwariorum_, ix. (viii.) 5. Du Boys,
_Histoire du droit criminel de l'Espagne_, p. 288 (Spanish
Partidas).]

[Footnote 42: _Cf._ Gregory IX. _Decretales_, v. 12. 3; _Mishna_, fol.
72, quoted by Rabbinowicz, _Législation criminelle du Talmud_, p. 122.]

[Footnote 43: _Lex Duodecim Tabularum_, viii. 12. Cicero, _Pro
Milone_, 3 (9).]

[Footnote 44: _Digesta_, xlviii. 8. 9.]

[Footnote 45: Bracton, _op. cit._ fol. 144 b, vol. ii. 464 _sq._]

[Footnote 46: Grotius, _De jure belli et pacis_, ii. 1. 12. 1.]

According to the law of England, a woman is justified in killing one
who attempts to ravish her; and so also the husband or father may kill
a man who attempts a rape on his wife or daughter, if she do not
consent.[47] We meet with similar provisions in many other laws,
modern and ancient.[48] St. Augustine says that the law allows the
killing of a ravisher of chastity, either before or after the act, in
the same manner as it permits a person to kill a highwayman who makes
an attempt upon his life.[49] According to the Talmud, it is
permissible to kill a would-be criminal, in order to prevent the
commission of either murder or adultery "to save an innocent man's
life, or a woman's honour"; but when the crime has already been
accomplished, the criminal cannot be thus disposed of.[50]

[Footnote 47: Harris, _op. cit._ p. 145.]

[Footnote 48: Erskine-Rankine, _Principles of the Law of Scotland_, p.
558. _Ottoman Penal Code_, art. 186. Nordström, _Bidrag till den
svenska samhälls-författningens historia_, ii. 349 (ancient Swedish
laws). Plato, _Leges_, ix. 874.]

[Footnote 49: St. Augustine, _De libero arbitrio_, i. 5 (Migne,
_Patrologiæ cursus_, xxxii. 1227).]

[Footnote 50: Benny, _op. cit._ p. 125. Rabbinowicz, _op. cit._ p. 124.]

Among many peoples who in other cases prohibit self-redress, an
adulterer and an adulteress may be put to death by the aggrieved
husband, especially if they be caught _flagrante delicto_. Such a
custom prevails in various uncivilised societies where justice is
generally administered by a council of elders or the chief.[51] Among
the ancient {291} Peruvians "a man killing his wife for adultery was
free; but if for any other fault he died for it, unless he were a man
in dignity, and then some other penalty was inflicted."[52] According
to Chinese penal law, "when a principal or inferior wife is discovered
by her husband in the act of adultery, if such husband at the very
time that he discovers kills the adulterer, or adulteress, or both, he
shall not be punishable."[53] By the law of Nepal, the Parbattia
husband retains the privilege of avenging, with his own hand, the
violation of his marriage bed, and anyone, save a learned Brahman or a
helpless boy, who instead of using his own sword, should appeal to the
courts, would be covered with eternal disgrace.[54] In all purely
Moslem nations custom "overwhelms with ignominy the husband or son of
an adulteress who survives the discovery of her sin; he is taboo'd by
society; he becomes a laughing-stock to the vulgar, and a disgrace to
his family and friends."[55] According to the 'Lex Julia de
adulteriis,' a Roman father had a right to kill both his married
daughter and her accomplice if she was taken in adultery either in his
house or in her husband's, provided that both of them were killed, and
that it was done at once. The husband, on the other hand, had no such
right as to his wife in any case, and no such right as to her
accomplice unless he was an infamous person or a slave, taken, not in
his father-in-law's house, but in his own.[56] However, it seems that
in more ancient times the husband was entitled to kill an adulterous
wife;[57] and his right of self-redress in the case of adultery was
again somewhat extended by Justinian beyond the very narrow limits set
down by the Lex Julia.[58] According to an Athenian law, "if one man
shall kill another . . . after catching him with his wife, or with his
mother, or with a {292} sister, or with a daughter, or with a
concubine whom he keeps to beget free-born children, he shall not go
into exile for homicide on such account."[59] Ancient Teutonic law
allowed a husband to kill both his unfaithful wife and the adulterer,
if he caught them in the act;[60] according to the Laws of Alfred, an
adulterer taken _flagrante delicto_ by the woman's lawful husband,
father, brother, or son, might be killed without risk of
blood-feud.[61] In the thirteenth century, however, there are already
signs that, in England, the outraged husband who found his wife in the
act of adultery might no longer slay the guilty pair or either of
them, although he might emasculate the adulterer.[62] The present law
treats the killing of an adulterer taken in the act in the same way as
homicide committed in a quarrel; by slaying him, the husband is guilty
of manslaughter only, though, if the killing were deliberate and took
place in revenge after the fact, the crime would be murder. This seems
to be the only case in English law in which provocation, other than by
actual blows, is considered sufficient to reduce homicide to
manslaughter, if the killing be effected by a deadly weapon.[63] There
are corresponding provisions in other modern laws.[64] As a rule,
flagrant adultery does not justify homicide, but serves as an
extenuating circumstance.[65] But according to the French Code Pénal,
"dans le cas d'adultère . . . le meurtre commis par l'époux sur son
épouse, ainsi que sur le complice, à l'instant où il les surprend en
flagrant délit dans la maison conjugale, est excusable."[66] And in
Russia, though the law does not exempt from punishment a {293} husband
who thus avenges himself, the jury show great indulgence to him.[67]

[Footnote 51: Dalton, _Descriptive Ethnology of Bengal_, p. 45;
Stewart, in _Jour. As. Soc. Bengal_, xxiv. 628 (Kukis). Macpherson,
_Memorials of Service in India_, p. 83; Hunter, _Annals of Rural
Bengal_, iii. 76 (Kandhs). Anderson, _Mandalay to Momien_, p. 140
(Kakhyens). MacMahon, _Far Cathay and Farther India_, p. 273
(Indo-Burmese border tribes). Crawfurd, _History of the Indian
Archipelago_, iii. 130. von Brenner, _Besuch bei den Kannibalen
Sumatras_, pp. 211, 213. Modigliani, _Viaggio a Nías_, p. 495. Dorsey,
'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._ iii. 364. Dyveyrier,
_Exploration du Sahara_, p. 429 (Touareg). Barrow, _Travels into the
Interior of Southern Africa_, i. 207 (Kafirs). Among the Gaika tribe
of the Kafirs, however, "a man is fined for murder, if he kills an
adulterer or adulteress in the act, although he be the husband of the
adulteress" (Maclean, _Compendium of Kafir Laws and Customs_, p. 111).
Among the Wakamba, "if a man is caught in adultery at night, the
husband has a right to kill him; but if the injured man thus takes the
law into his own hands in the daytime, he is dealt with as a murderer"
(Decle, _op. cit._ p. 487).]

[Footnote 52: Herrera, _op. cit._ iv. 338.]

[Footnote 53: _Ta Tsing Leu Lee_, sec. cclxxxv. p. 307.]

[Footnote 54: Hodgson, _Miscellaneous Essays_, ii. 235, 236, 272.]

[Footnote 55: Burton, _Sind Revisited_, ii. 54 _sq._]

[Footnote 56: _Digesta_, xlviii. 5. 21 _sq._]

[Footnote 57: Gellius, _Noctes Atticæ_, x. 23. 5. _Cf._ Mommsen,
_Römisches Strafrecht_, p. 625.]

[Footnote 58: _Novellæ_, cxvii. 15.]

[Footnote 59: Demosthenes, _Contra Aristocratem_, 53, p. 637.]

[Footnote 60: Wilda, _Strafrecht der Germanen_, p. 823. Nordström,
_op. cit._ ii. 62 _sq._ Stemann, _op. cit._ p. 325.]

[Footnote 61: _Laws of Alfred_, ii. 42.]

[Footnote 62: Pollock and Maitland, _op. cit._ ii. 484. The same right
is granted by a Spanish mediæval law to a father, or a husband, who
finds a man having illegitimate sexual intercourse with his daughter,
or wife (Du Boys, _Histoire du droit criminel de l'Espagne_, p. 93).]

[Footnote 63: Hale, _op. cit._ i. 486. Harris, _op. cit._ p. 145.
Cherry, _Lectures on the Growth of Criminal Law_, p. 82 _sq._]

[Footnote 64: Italian _Codice Penale_, art. 377. Spanish _Código Penal
reformado_, art. 438. _Ottoman Penal Code_, art. 188.]

[Footnote 65: Günther, _Idee der Wiedervergeltung_, iii. 233 _sqq._]

[Footnote 66: _Code Pénal_, art. 324.]

[Footnote 67: Foinitzki, _loc. cit._ p. 548.]

Whilst the law referring to self-defence has gradually become more
liberal, the law referring to self-redress in the case of adultery has
thus, generally speaking, become more severe. The reason for this is
obvious. A husband who slays his unfaithful wife or her accomplice
does not defend, but avenges himself; and it is to be expected that a
society in which punishment has only just succeeded revenge should
still admit, or tolerate, revenge in extreme cases. The privilege
granted to the outraged husband is not the sole survival of the old
system of self-redress lingering on under the new conditions.
According to Kafir custom or law, the relatives of a murdered man
become liable only to a very light fine if they kill the murderer.[68]
The ancient Teutons, at a time when their laws already prohibited
private revenge, did not look upon an avenger of blood in the same
light as an ordinary manslayer;[69] and even the Church recognised the
distinction.[70] Some of the ancient Swedish laws entirely excused
homicide committed in revenge immediately after the crime.[71]
According to the Östgöta-Lag, an incendiary taken in flagrancy might
be at once burnt in the fire,[72] and ancient Norwegian law permitted
the slaying of a thief caught in the act.[73] In the Laws of Ine there
is an indication that a thief's fate was at the discretion of his
captor,[74] and a law of Æthelstan implies that the natural and proper
course as to thieves was to kill them.[75] In the Laws of King Wihtræd
it is said, "If any one slay a layman while thieving; let him lie
without 'wergeld.'"[76] So also, according to Javanese law, if a thief
be caught in the act it is lawful to put him to death.[77] For our
present {294} purpose it is important to note that all such cases
imply a recognition of the principle that an act committed on extreme
provocation requires special consideration. To declare that an
adulterer or adulteress caught in flagrancy, or a manifest thief, may
be slain with impunity, is a concession to human passions, which are
naturally more easily aroused by the sight of an act than by the mere
knowledge of its commission. It was for a similar reason that the Law
of the Twelve Tables punished _furtum manifestum_ much more heavily
than _furtum nec manifestum_;[78] and that the Laws of Alfred imposed
death as the penalty for fighting in the King's hall if the offender
was taken in the act, whereas he was allowed to pay for himself if he
escaped and was subsequently apprehended.[79]

[Footnote 68: Maclean, _op. cit._ p. 143. _Cf._, however, _ibid._
p. 110.]

[Footnote 69: Wilda, _op. cit._ p. 562. Stemann, _op. cit._ p. 582 _sq._]

[Footnote 70: Wilda, _op. cit._ pp. 180, 565. Labbe-Mansi, _Sacrorum
Conciliorum collectio_, xii. 289.]

[Footnote 71: Nordström, _op. cit._ ii. 414 _sq._]

[Footnote 72: _Ibid._ ii. 416.]

[Footnote 73: Wilda, _op. cit._ p. 889.]

[Footnote 74: _Laws of Ine_, 12. _Cf._ Stephen, _op. cit._ i. 62.]

[Footnote 75: _Laws of Æthelstan_, iv. 4.]

[Footnote 76: _Laws of Wihtræd_, 25.]

[Footnote 77: Crawfurd, _op. cit._ iii. 115.]

[Footnote 78: _Institutiones_, iv. 1. 5.]

[Footnote 79: _Laws of Alfred_, ii. 7.]

The difference between an injury which a person inflicts deliberately,
in cold blood, and one which he inflicts in the heat of the moment,
under the disturbance of great excitement caused by a wrong done to
himself, has been widely recognised. There are instances reported of
savages who distinguish between murder and manslaughter. And the laws
of all civilised nations agree in regarding, on certain conditions,
passion aroused by provocation as a mitigating circumstance at the
commission of a crime.

The Australian Narrinyeri, as we have seen, have a tribunal, called
_tendi_, consisting of the elders of the clan, to which all offenders
are brought for trial. "In case 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. If it
were a case of murder, with malice aforethought, he would be handed
over to his own clan to be put to death by spearing. If it should be
what we call manslaughter, he would receive a good thrashing, or be
banished from his clan, or compelled to go to his mother's {295}
relations."[80] In the Pelew Islands, if two natives are quarrelling,
and the one says to the other, "Your wife is bad," the insulted party
is entitled to chastise the provoker with a stone, and is not held
liable even if the latter should die in consequence.[81] The Eastern
Central Africans "are aware of the difference between murder and
homicide," even though the punishment of the two crimes is often the
same.[82] Among the Kandhs only slight compensation is awarded "for
wounds, however serious, given under circumstances of extreme
provocation."[83] "_Valdeyak_, or manslaughter," says Georgi, "is not
capital among the Tungusians, when it has been occasioned by some
antecedent quarrel. The slayer is however whipped, and obliged to
maintain the family of the deceased: he undergoes no reproaches on
account of the affair; but on the contrary is considered as a brave
and courageous man for it."[84]

[Footnote 80: Taplin, 'Narrinyeri,' in Woods, _Native Tribes of South
Australia_, p. 34 _sq._]

[Footnote 81: Kubary, 'Die Palau-Inseln,' in _Journal des Museum
Godeffroy_, iv. 43 _sq._]

[Footnote 82: Macdonald, _Africana_, i. 172.]

[Footnote 83: Macpherson, _op. cit._ p. 82.]

[Footnote 84: Georgi, _Russia_, iii. 83. _Cf._ also Turner, 'Ethnology
of the Ungava District,' in _Ann. Rep. Bur. Ethn._ xi. 186.]

Among the ancient Peruvians, "when one killed another in a quarrel,
the first thing enquired into was, who had been the aggressor; if the
dead man, then the punishment was slight, at the will of the Inga; but
if the surviver had given the provocation, his penalty was death, or
at least perpetual banishment to the Andes, there to work in the
Inga's fields of corn, which was like sending him to the galeys. A
murderer was immediately publickly put to death, tho' he were a man of
quality."[85] Among the Mayas of Yucatan and Nicaragua, in case of
great provocation or absence of malice, homicide was atoned by the
payment of a fine.[86]

[Footnote 85: Herrera, _op. cit._ iv. 337 _sq._]

[Footnote 86: Bancroft, _Native Races of the Pacific States_, ii. 658.]

From certain passages in the Mosaic law the conclusion has been
drawn that the ancient Hebrews did not consider it obligatory to
inflict death upon him who had killed his neighbour in a fit of
passion.[87] It is said that a man shall be put to death if he "come
presumptuously upon his neighbour, to slay him with guile,"[88] or if
he "hate his neighbour, and lie in wait for him, and rise up against
him, and smite him mortally that he die."[89] On the other hand, he
shall be allowed a resort to a city {296} of refuge if "he lie not in
wait,"[90] or if he thrust his neighbour "suddenly without
enmity."[91]

[Footnote 87: Goitein, _Das Vergeltungsprincip im biblischen und
taltmudischen Strafrecht_, p. 33 _sqq._]

[Footnote 88: _Exodus_, xxi. 14.]

[Footnote 89: _Deuteronomy_, xix. 11 _sq._]

[Footnote 90: _Exodus_, xxi. 13.]

[Footnote 91: _Numbers_, xxxv. 22, 25.]

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

[Footnote 92: Leist, _Græco-italische Rechtsgeschichte_, pp. 325, 352.]

[Footnote 93: Plato, _Leges_, ix. 867.]

[Footnote 94: Aristotle, _Ethica Nicomachea_, iii. 1. 21.]

[Footnote 95: _Ibid._ v. 8. 9.]

[Footnote 96: _Ibid._ vii. 7. 3.]

[Footnote 97: Cicero, _De officiis_, i. 8.]

Of ancient Russian law M. Kovalewsky observes, "L'existence d'une
excitation violente est prise en considération, par notre antique
législation, qui déclare le crime accompli sous leur influence non
imputable."[98] According to ancient Irish law, "homicide was
divisible into the two classes of simple manslaughter and murder, the
difference between which lay in the {297} existence or absence of
malice aforethought, the fine in the latter being double what it was
in the former case"; and for a wound which was inflicted inadvertently
in lawful anger, the payment was made upon a diminished scale.[99] The
ancient Teutons, also, held a wrong committed in sudden anger and on
provocation to be less criminal than one committed with premeditation
in cold blood;[100] this opinion seems partly to be at the bottom of
the distinction which they made between open and secret homicide.[101]
According to the law of the East Frisians, a man who kills another
without premeditation may buy off his neck with money, not so he who
commits a murder with malice aforethought.[102] It is curious that
Bracton should take no notice of the different grades of evil
intention which may accompany voluntary homicide, and that he should
omit altogether the question of provocation;[103] Beaumanoir, the
French jurist, who lived in the same age, mentions in his 'Coutumes du
Beauvoisis' provocation as an extenuating circumstance,[104] and the
same view was taken by the Church.[105] Coke, in his Third
Institute--which may be regarded as the second source of the criminal
law of England, Bracton being the first--gives an account of malice
aforethought, and adds, "Some manslaughters be voluntary, and not of
malice forethought, upon some sudden falling out. _Delinquens per iram
provocatus puniri debet mitius_."[106] Hume says that in Scotland "the
manslayer on suddenty was to have the benefit of the girth or
sanctuary: he might flee to the church or other holy place; from which
he might indeed be taken for trial, but to be returned thither, safe
in life and limb, if his allegation of _chaude melle_ were
proved."[107] All modern codes regard provocation under certain
circumstances as a mitigating circumstance.[108] According to the
criminal law of Montenegro, great provocation may even relieve a
homicide of all guilt.[109]

[Footnote 98: Kovalewsky, _Coutume contemporaine_, p. 291.]

[Footnote 99: _Ancient Laws of Ireland_, iii. pp. xciii. cx.]

[Footnote 100: Wilda, _op. cit._ p. 560 _sqq._, 701. Stemann, _op.
cit._ p. 574. von Amira, in Paul's _Grundriss der germanischen
Philologie_, ii. pt. ii. 174.]

[Footnote 101: Wilda, _op. cit._ p. 569. von Amira, _loc. cit._ p. 173.]

[Footnote 102: _Das Ostfriesische Land-Recht_, iii. 17 _sq._]

[Footnote 103: _Cf._ Stephen, _op. cit._ iii. 33.]

[Footnote 104: Beaumanoir, _Coutumes du Beauvoisis_, xxx. 101, vol. i.
454 _sq._]

[Footnote 105: Gregory III. _Judicia congrua penitentibus_, 3
(Labbe-Mansi, _op. cit._ xii. 289).]

[Footnote 106: Coke, _Third Institute_, p. 55.]

[Footnote 107: Hume, _Commentaries on the Law of Scotland_, i. 365.]

[Footnote 108: Günther, _op. cit._ iii. 256 _sqq._]

[Footnote 109: _Ibid._ iii. 255 _sq._]

It has been said that a man who acts under the influence of great
passion has not, at the time, a full knowledge of the nature and
quality of his act, and that {298} the clemency of the law is "a
condescension to the frailty of the human frame, to the _furor
brevis_, which, while the frenzy lasteth, rendereth the man deaf to
the voice of reason."[110] But the main cause for passion extenuating
his guilt is not the intellectual disability under which he acts, but
the fact that he is carried away by an impulse which is too strong for
his will to resist. This is implied in the provision of the law, that
"provocation does not extenuate the guilt of homicide unless the
person provoked is at the time when he does the act deprived of the
power of self-control by the provocation which he has received."[111]

[Footnote 110: Foster, _Report of Crown Cases_, p. 315.]

[Footnote 111: Stephen, _Digest_, art. 246, p. 188.]

That anger has been so generally recognised as an extenuation of guilt
is largely due to the fact that the person who provokes it is himself
blamable; both morality and law take into consideration the degree of
provocation to which the agent was exposed. But, at the same time, the
pressure of a non-volitional motive on the will may by itself be a
sufficient ground for extenuation. In certain cases of mental disease
a morbid impulse or idea may take such a despotic possession of the
patient as to drive him to the infliction of an injury. He is mad, and
yet he may be free from delusion and exhibit no marked derangement of
intelligence. He may be possessed with an idea or impulse to kill
somebody which he cannot resist. Or he may yield to a morbid impulse
to steal or to set fire to houses or other property, without having
any ill-feeling against the owner or any purpose to serve by what he
does.[112] The deed to which the patient is driven is frequently one
which he abhors, as when a mother kills the child which she loves
most.[113] In such cases the agent is of course acquitted by the moral
judge, and if he is condemned by the law of his country and its
guardians, the reason for this can be nothing but ignorance. We must
remember that this form of madness was hardly known even to medical
{299} men till the end of the 18th century,[114] when Pinel, to his
own surprise, discovered that there were "many madmen who at no period
gave evidence of any lesion of the understanding, but who were under
the dominion of instinctive and abstract fury, as if the affective
faculties had alone sustained injury."[115] And there can be no doubt
that the fourteen English judges who formulated the law on the
criminal responsibility of the insane, made no reference to this
_manie sans délire_ simply because they had not sufficient knowledge
of the subject with which they had to deal.[116]

[Footnote 112: Maudsley, _Responsibility in Mental Disease_, p. 133
_sqq._ von Krafft-Ebing, _Lehrbuch der gerichtlichen Psychopathologie_,
p. 308 _sqq._]

[Footnote 113: Gadelius, _Om tvångstankar_, p. 168 _sq._ Paulhan,
_L'activité mentale_, p. 374.]

[Footnote 114: Maudsley, _op. cit._ p. 141.]

[Footnote 115: Pinel, _Traité médico-philosophique sur l'aliénation
mentale_, p. 156: "Je ne fut pas peu surpris de voir plusieurs aliénés
qui n'offroient à aucune époque aucune lésion de l'entendement, et qui
étoient dominés par une sorte d'instinct de fureur, comme si les
facultés affectives seules avoient été lésées."]

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

       *       *       *       *       *

That moral judgments are generally passed, in the first instance, with
reference to acts immediately intended, and consider motives only in
proportion as the judgment is influenced by reflection, holds good,
not only of moral blame, but of moral praise. Every religion presents
innumerable examples of people who do "good deeds" only in expectation
of heavenly reward. This implies the assumption that the Deity judges
upon actions without much regard to their motives; for if motives were
duly considered, a man could not be held rewardable for an act which
he performs solely for his own benefit. We are told that the homage
which the Chinese "render the gods and goddesses believed to be
concerned in the management of the affairs of this world is
exceedingly formal, mechanical, and heartless," and that "there seems
to be no special importance attached to purity of heart."[117]
According to Caldwell, "the Hindu religionist enjoins the act alone,
and affirms that motives have nothing to do with merit."[118] The
argument, "Obey the law because it will {300} profit you to do so,"
constitutes the fundamental motive of Deuteronomy, as appears from
phrases like these: "That it may go well with thee," "That thy days
may be prolonged."[119] Speaking of the modern Egyptians, Lane
observes that "from their own profession it appears that they are as
much excited to the giving of alms by the expectation of enjoying
corresponding rewards in heaven as by pity for the distresses of their
fellow-creatures, or a disinterested wish to do the will of God."[120]
Something similar may be said, not only of the "good deeds" of
Muhammedans, but of those of many Christians. Did not Paley expressly
define virtue as "the doing good to mankind, in obedience to the will
of God, and for the sake of everlasting happiness"?[121]

[Footnote 117: Doolittle, _Social Life of the Chinese_, ii. 397.]

[Footnote 118: Caldwell, _Tinnevelly Shanars_, p. 35.]

[Footnote 119: _Cf._ Montefiore, _Hibbert Lectures_, p. 531.]

[Footnote 120: Lane, _Modern Egyptians_, p. 293.]

[Footnote 121: Paley, _Principles of Moral and Political Philosophy_,
i. 7 (_Complete Works_, ii. 38).]

Such views, however, cannot hold their ground against the verdict of
the scrutinising moral consciousness. They have been repeatedly
contradicted by the great teachers of morality. Confucius required an
inward sincerity in all outward practice, and poured scorn on the
pharisaism which contented itself with the cleansing of the outside of
the cup and platter.[122] He said that, "in the rites of mourning,
exceeding grief with deficient rites is better than little
demonstration of grief with superabounding rites; and that in those of
sacrifice, exceeding reverence with deficient rites is better than an
excess of rites with but little reverence."[123] "Sacrifice is not a
thing coming to a man from without; it issues from within him, and has
its birth in his heart. When the heart is deeply moved, expression is
given to it by ceremonies."[124] The virtuous man offers his
sacrifices "without seeking for anything to be gained by them."[125]
"The Master said, 'See what a man does. Mark his motives.'"[126] The
popular Taouist work, called 'The Book of Secret Blessings,'
inculcates the necessity {301} of purifying the heart as a preparation
for all right-doing.[127] The religious legislator of Brahmanism,
whilst assuming in accordance with the popular view that the
fulfilment of religious duty will be always rewarded to some extent,
whatever may be the motive, maintains that the man who fulfils his
duties without regard to the rewards which follow the fulfilment, will
enjoy the highest happiness in this life and eternal happiness
hereafter.[128] According to the Buddhistic Dhammapada, "if a man
speaks or acts with an evil thought, pain follows him, as the wheel
follows the foot of the ox that draws the carriage. . . . If a man
speaks or acts with a pure thought, happiness follows him, like a
shadow that never leaves him."[129] In his description of the
Buddhists of Mongolia, the Rev. James Gilmour observes:--"Mongol
priests recognise the power of motive in estimating actions . . . .
The attitude of the mind decides the nature of the act. He that offers
a cup of cold water only, in a proper spirit, has presented a gift
quite as acceptable as the most magnificent of donations."[130] With
reference to the Hebrews, Mr. Montefiore says:--"If it were true that
the later Judaism of the law laid exclusive stress in its moral
teaching upon the mere outward act and not upon the spirit--upon doing
rather than being, as we might nowadays express it--we should scarcely
find that constant harping upon the heart as the source and seat of
good and evil. What more legal book than Chronicles? Yet it is there
that we find the earnest supplication for a heart directed towards
God. . . . The eudæmonistic motive is strongest in Deuteronomy; it is
weakest with the Rabbis."[131] Few sayings are quoted and applied more
frequently in the Rabbinical literature than the adage which closes
those tractates of the Mishna which deal with the sacrificial
law:--"He that brings few offerings is as he that brings many; let his
heart be directed {302} heavenward."[132] The same faults which Jesus
chastises in the hypocritical Rabbis of his day are also chastised in
the Talmud. It is said, "Before a man prays let him purify his
heart,"[133] and, "Sin committed with a good motive is better than a
precept fulfilled from a bad motive."[134] Rabbi Elazar says, "No
charity is rewarded but according to the degree of benevolence in it,
for it is said, 'Sow (a reward) for yourselves in giving alms as
charity, you will reap according to the benevolence.'"[135] Nor is the
doctrine which requires disinterested motives for the performance of
good deeds foreign to Muhammedan moralists. "Whatever we give," says
the author of the Akhlâk-i-Jelâli, "should be given in the fulness of
zeal and good-will. . . . We should spend it simply to please God, and
not mix the act with any meaner motive, lest thereby it be rendered
null and void."[136]

[Footnote 122: _Cf._ Legge, _Religions of China_, p. 261 _sq._; Girard
de Rialle, _Mythologie comparée_, p. 214.]

[Footnote 123: _Lî Kî_, ii. 1. 2. 27. _Cf._ _Lun Yü_, iii. 4. 3.]

[Footnote 124: _Lî Kî_, xxii. 1.]

[Footnote 125: _Ibid._ xxii. 2.]

[Footnote 126: _Lun Yü_, ii. 10. 1 _sq._]

[Footnote 127: Douglas, _Confucianism and Taouism_, p. 272.]

[Footnote 128: Wheeler, _History of India_, ii. 478.]

[Footnote 129: _Dhammapada_, 1 _sq._]

[Footnote 130: Gilmour, _Among the Mongols_, p. 239.]

[Footnote 131: Montefiore, _op. cit._ pp. 483, 533. _1 Chronicles_,
xxii. 19; xxviii. 9; xxix. 18 _sq._ _2 Chronicles_, xi. 16; xv. 12;
xvi. 9.]

[Footnote 132: Montefiore, _op. cit._ p. 484.]

[Footnote 133: _Ibid._ p. 174.]

[Footnote 134: Nazir, fol. 23 B, quoted by Hershon, _Treasures of the
Talmud_, p. 74.]

[Footnote 135: Succah, fol. 49 B, _ibid._ p. 11.]

[Footnote 136: Quoted by Ameer Ali, _Ethics of Islâm_, p. 38 _sq._]




CHAPTER XII

FORBEARANCES AND CARELESSNESS--CHARACTER


THE observation has often been made that in early moral codes the
so-called negative commandments, which tell people what they ought not
to do, are much more prominent than the positive commandments, which
tell them what they ought to do. The main reason for this is that
negative commandments spring from the disapproval or acts, whereas
positive commandments spring from the disapproval of forbearances or
omissions, and that the indignation of men is much more easily aroused
by action than by the absence of it. A person who commits a harmful
deed is a more obvious cause of pain than a person who causes harm by
doing nothing, and this naturally affects the question of guilt in the
eyes of the multitude. A scrutinising judge of course carefully
distinguishes between willfulness and negligence, whereas, to his
mind, a forbearance is morally equivalent to an act. The unreflecting
judge, on the other hand, is much less concerned with the question of
wilfulness than with the distinction between acting and not-acting.
Even the criminal laws of civilised nations take little cognisance of
forbearances and omissions;[1] and one reason for this is that they
evoke little public indignation. Even if it be admitted that the rules
of beneficence, so far as details are concerned, must be left in a
great measure to {304} the jurisdiction of private ethics, the limits
of the law on this head, as Bentham remarks, seem "to be capable of
being extended a good deal farther than they seem ever to have been
extended hitherto." And he appropriately asks, "In cases where the
person is in danger, why should it not be made the duty of every man
to save another from mischief, when it can be done without prejudicing
himself, as well as to abstain from bringing it on him?"[2]

[Footnote 1: Stephen, _History of the Criminal Law of England_, ii.
113. Hepp, _Zurechnung auf dem Gebiete des Civilrechts_, p. 115 (Roman
law).]

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

The more scrutinising the moral consciousness, the greater the
importance which it attaches to positive commandments. This is well
illustrated by a comparison between Old and New Testament morality. As
Professor Seeley observes,[3] "the old legal formula began 'thou shalt
not,' the new begins with 'thou shalt.' The young man who had kept the
whole law--that is, who had refrained from a number of actions--is
commanded to do something, to sell his goods and feed the poor.
Condemnation was passed under the Mosaic law upon him who had sinned,
who had done something forbidden--the soul that sinneth shall die;
Christ's condemnation is pronounced upon those who had not done
good--'I was an hungered and ye gave me no meat.' The sinner whom
Christ habitually denounces is he who has done nothing." This
characteristic is repeatedly manifested in His parables--as in the
case of the priest and Levite who passed by on the other side; in the
case of Dives, of whom no ill is recorded except that a beggar lay at
his {305} gate full of sores and yet no man gave unto him; in the case
of the servant who hid in a napkin the talent committed to him.
However, to say that the new morality involved the discovery of "a new
continent in the moral globe,"[4] is obviously an exaggeration. The
customs of all nations contain not only prohibitions, but positive
injunctions as well. To be generous to friends, charitable to the
needy, hospitable to strangers, are rules which, as will be seen, may
be traced back to the lowest stages of savagery known to us. The
difference in question is only one of degree. Of the Bangerang tribe
in Victoria Mr. Curr observes:--"Aboriginal restraints were, in the
majority of cases, though not altogether, of a negative character; an
individual might not do this, and might not eat that, and might not
say the other. What he should do under any circumstances, or that he
should do anything, were matters with which custom interfered less
frequently."[5]

[Footnote 3: Seeley, _Ecce Homo_, p. 176.]

[Footnote 4: _Ibid._ p. 179.]

[Footnote 5: Curr, _Recollections of Squatting in Victoria_, p. 264 _sq._]

Whilst the unreflecting mind has a tendency to overlook or underrate
the guilt of a person who, whether wilfully or by negligence, causes
harm by doing nothing, it is on the other hand, apt to exaggerate the
guilt of a person who, not wilfully but out of heedlessness or
rashness, causes harm by a positive act. In reality the latter person
is blamable not for what he did, but for what he omitted to do, for
want of due attention, for not thinking of the probable consequences
of his act or for insufficient advertence to them. But the superficial
judge largely measures the agent's guilt by the actual harm done, and
in many cases even attributes to carelessness what was due to sheer
misfortune.

As Sir F. Pollock and Prof. Maitland rightly observe, it is not true
that barbarians will not trace the chain of causation beyond its
nearest link--that, for example, they will not impute one man's death
to another unless that other has struck a blow which laid a corpse at
his feet.[6] {306} Among the Wanyoro, should a girl die in childbirth,
the seducer is also doomed to die, unless he ransom himself by payment
of some cows.[7] Among the Wakamba, if a man is the second time guilty
of manslaughter in a state of drunkenness, the elders may either
sentence him to death, "or make the seller of drink pay compensation
to the family of the victim."[8] According to the native code of
Malacca, if vicious buffaloes or cattle "be tied in the highway, where
people are in the habit of passing and repassing, and gore or wound
any person, the owner shall be fined one tahil and one paha, and pay
the expense necessary for the cure of the wounded individual. Should
he be gored to death, then the owner shall be fined according to the
Diyat, because the owner is criminal in having tied the animal in an
improper place."[9] In the Laws of Alfred it is said that, if a man
have a spear over his shoulder and anybody stake himself on it, the
man with the spear has to pay the _wer_.[10] According to an ancient
custom, in vogue in England as late as the thirteenth century, one who
was accused of homicide was, before going to the wager of battle,
expected to swear that he had done nothing through which the dead man
had become "further from life and nearer to death";[11] and damages
which the modern English lawyer would without hesitation describe as
"too remote" were not too remote for the author of the so-called 'Laws
of Henry I.'[12] "At your request I accompany you when you are about
your own affairs; my enemies fall upon and kill me; you must pay for
my death.[13] You take me to see a wild beast show or that interesting
spectacle a madman; beast or madman kills me; you must pay. You hang
up your sword; some one else knocks it down so that it cuts me; you
must pay."[14] In all these cases you did something that helped to
bring {307} about death or wound, and you are consequently held
responsible for the mishap.

[Footnote 6: Pollock and Maitland, _History of English Law before the
Time of Edward I._ ii. 470.]

[Footnote 7: _Emin Pasha in Central Africa_, p. 83.]

[Footnote 8: Decle, _Three Years in Savage Africa_, p. 487.]

[Footnote 9: Newbold, _British Settlements in the Straits of Malacca_,
ii. 256 _sq._]

[Footnote 10: _Laws of Alfred_, 36.]

[Footnote 11: _Leges Henrici I._ xc. 11. Bracton, _op. cit._
fol. 141 b, vol. ii. 440 _sq._]

[Footnote 12: Pollock and Maitland, _op. cit._ ii. 470 _sq._]

[Footnote 13: _Leges Henrici I._ lxxxviii. 9.]

[Footnote 14: _Ibid._ xc. 11. Pollock and Maitland, _op. cit._ ii. 471.]

But though early custom and law may be anxious enough to trace an
event to its source, they easily fail to distinguish between external
and internal causes, to discover where there is guilt or not, and, in
case of carelessness, to determine the magnitude of the offender's
guilt. Ancient Teutonic law, as we have seen, distinguished between
_vili_ and _vadhi_. It punished the involuntary manslayer less heavily
than the voluntary one, but it punished him all the same; and whether
the unintended deed was combined with heedlessness or was purely
accidental was a question with which the law did not at all concern
itself.[15] According to the Laws of [Hv]ammurabi, "if the doctor has
treated a gentleman for a severe wound with a lancet of bronze, and
has caused the gentleman to die, or has opened an abscess of the eye
for a gentleman with the bronze lancet and has caused the loss of the
gentleman's eye, one shall cut off his hands."[16] In the Mosaic law
distinction was made between presence and absence of enmity in the
manslayer, but the difference between carelessness and misfortune was
not considered,[17] except when the instrument of death was a goring
ox.[18] However, in this, as in many other respects, great progress
was made by the later legislation of the Jews. The Rabbis took
considerable pains to distinguish between purely accidental homicide
and homicide due to carelessness; the former they exempted from all
punishment, whereas the latter incurred the punishment of confinement
to a city of refuge.[19] They even distinguished between cases in
which the death was exclusively due to the carelessness of the agent,
and cases in which the deceased contributed to it by some blamable act
of his own. A father or a teacher {308} who in punishing his son or
pupil unintentionally caused his death, and a person who by order of
the Sanhedrim inflicted corporal punishment on a culprit and in doing
so happened by mistake to kill him--such persons were not confined in
a city of refuge, but escaped punishment altogether.[20] Whatever else
may be said of these provisions, they certainly show remarkable
discernment in a point where legislators of a ruder type have been
very indiscriminate. In the oldest English records we see no attempt
to distinguish cases in which the dead man himself was reprehensible
from others in which no fault could be imputed to him, and we find
that many horses and boats bore the guilt which should have been
ascribed to beer.[21] When a drunken carter was crushed beneath the
wheel of his cart, the cart, the cask of wine which was in it, and the
oxen that were drawing it, were all deodand.[22] According to the
customary law of the Ossetes, if a stolen gun went off in the hands of
the thief who was carrying it away, and killed him, the thief's kin
had a just feud against the owner of the gun.[23]

[Footnote 15: Wilda, _Strafrecht der Germanen_, p. 578. Geyer, _op.
cit._ p. 88. Brunner, _Forschungen zur Geschichte des deutschen und
französischen Rechtes_, p. 499.]

[Footnote 16: _Laws of [Hv]ammurabi_, 218.]

[Footnote 17: _Numbers_, xxxv. 16 _sqq._ _Deuteronomy_, xix. 4 _sqq._]

[Footnote 18: _Exodus_, xxi. 28-32, 35 _sq._ _Cf._ _Laws of
[Hv]ammurabi_, 250 _sqq._]

[Footnote 19: Rabbinowicz, _Législation criminelle du Talmud_,
p. 173 _sqq._]

[Footnote 20: _Ibid._ p. 174. Benny, _Criminal Code of the Jews
according to the Talmud Massecheth Synhedrin_, p. 115 _sq._]

[Footnote 21: Pollock and Maitland, _op. cit._ ii. 474, n. 4.]

[Footnote 22: _Three Early Assize Rolls for the County of
Northumberland_, p. 96 _sq._]

[Footnote 23: Kovalewsky, _Coutume contemporaine_, p. 295.]

Modern laws generally hold a person liable for harm caused by him
through want of ordinary care and foresight, and it depends on the
nature of the case whether he will have to pay damages or to suffer
punishment. Yet, as we have previously noticed, his punishment is
determined not only by the degree of carelessness of which he was
guilty or the danger to which he exposed his fellow-men, but, largely,
by the harm resulting; whereas, if nobody happens to be hurt, little
notice is taken of his fault. To such an extent are men's judgments in
these matters influenced by external facts, that even nowadays many
among ourselves will hold a person answerable for all the damage which
directly ensues from an act of his, even though no foresight could
have reasonably been expected {309} to look out for it.[24] Not long
ago there were plausible, if insufficient, grounds adduced for
asserting that in English courts a plea that there was neither
negligence nor an intent to do harm was no answer to an action which
charged the defendant with having hurt the plaintiff's body.[25] And
of late years attacks have been made by continental jurists upon the
Roman principle that there is no liability where there is no
fault[26]--a principle which, more or less modified, has been adopted
by modern laws.[27] Although they take pains to point out the
difference between punishment and indemnification, the very language
they use indicates the quasi-ethical basis on which their theory
rests. It is only just, they say, that he who has caused the evil
should compensate for it, since the injured party "is still much more
innocent than he." And the "sense of justice" is appealed to for
compelling a man who faints in the street and in the fall happens to
break some fragile articles to indemnify the owner for his loss.[28]
Thus, whilst loss from accident is generally allowed to lie where it
falls, an exception is made where the instrument of misfortune is a
human being. This is a most unreasonable exception, but one not
difficult to explain. People are ready to blame a person who commits a
harmful deed, whether he deserves blame or not; at the same time they
are apt to overlook the indirect and more remote cause of the harm
which lies in the sufferer's own conduct. Hence the liability, if not
the guilt, is laid on him who is a cause of pain by _doing_ something,
even though it be by merely spasmodic contractions of his muscles;
whereas the other party, who only exposed himself to the risk of being
hurt, is regarded as the "more innocent."

[Footnote 24: Holmes, _Common Law_, p. 80.]

[Footnote 25: Stanley _v._ Powell, in _Law Reports, Queen's Bench
Division_, 1891, i. 86 _sqq._ Pollock and Maitland, _op. cit._
ii. 475 _sq._]

[Footnote 26: von Jhering, _Schuldmoment im römischen Privatrecht_,
_passim_, especially pp. 20 _sqq._, 40 _sqq._ Hepp, _op. cit._ p. 106.]

[Footnote 27: Forsman, _Bidrag till läran om skadestånd i brottmål_,
p. 158 _sq._ Pollock, _Law of Torts_, p. 129 _sqq._]

[Footnote 28: Thon, _Rechtsnorm und subjectives Recht_, p. 106, n. 71.]

Whilst culpability or quasi-culpability is thus imputed to the
innocent committer of a harmful deed, little or no {310} censure is
passed on him whose want of foresight or want of self-restraint is
productive of suffering, if only the effect is sufficiently remote.
This is exemplified by the frivolous leniency with which drunkenness,
not long ago, was looked upon in many civilised countries, and by the
criminal indifference with which law and public opinion still regard
the production of offspring that are almost with certainty doomed to
misery on account of the vices, poverty, or bodily infirmities of the
parents. To interfere here, it is argued, would be to intrude upon the
individual's right of freedom, or to meddle with the affairs of
Providence. But men are not, generally, allowed to do mischief simply
in order to gratify their own appetites, and Providence might equally
well be called in to answer for any other kind of human shortcoming. I
presume the true explanation to be, that in this, as in many other
kindred cases, the cause and effect are so distant from each other
that the near-sighted eye does not distinctly perceive the connection
between them. Indeed, there is hardly any other point in which the
moral consciousness of civilised men still stands in greater need of
intellectual training than in its judgments on cases which display
want of care or foresight. And there is no safer measure of the moral
enlightenment of a man than the scrupulosity with which he considers
the possible consequences of acts, and the number of positive
commandments which are contained in his catalogue of duties.

       *       *       *       *       *

That moral indignation and moral approval are from the very beginning
felt, not with reference to certain modes of conduct _per se_, but
with reference to persons on account of their conduct, is obvious from
the intrinsic nature of those emotions. As we noticed before, they
derive one of their most essential characteristics from their being
directed against sensitive agents. Hence they may as naturally give
rise to judgments on human character as to judgments on human conduct.
And even when a moral judgment immediately refers to a distinct act,
it takes notice of the {311} agent's will as a whole. The forgiveness
which follows sincere repentance, and the distinction made between
injuries committed deliberately in cold blood and injuries committed
in the heat of passion, indicate that men, in their moral judgments,
are apt to consider something more than a momentary volition. The same
tendency is at the bottom of the common practice of punishing a second
and third offence more severely than the first.

Among the Masai, "if a man is convicted of a particular crime
several times, or constitutes himself a public nuisance, he is
proclaimed an outlaw, his property is confiscated, and he is beaten
away from any settlement or village he goes near. Unless an outlaw can
find friends among non-Masai tribes, he dies of starvation."[29] Among
the Wakamba "a murder is judged by the elders; if it is a man's first
offence of that kind he is punished by a fine. . . . But a man
convicted for the second time of murder is killed at once, everyone
setting on him the moment judgment is delivered. . . . For rape a
first offender is flogged, and has to pay a fine of one cow; for the
second offence he is killed."[30] Among the Wyandots of North America,
"a woman guilty of adultery, for the first offence is punished by
having her hair cropped; for repeated offences her left ear is cut
off."[31] The laws of the Incas, also, were more lenient to a first
offence than to a second;[32] and in the kingdom of Mechoacan, whilst
the first theft was not severely punished, the thief who repeated his
crime was thrown down a precipice and his carcass was left to the
birds of prey.[33] Among the Aleuts, for the first theft "corporal
punishment was inflicted; for the second offence of the kind some
fingers of the right hand were cut off; for the third, the left hand
and sometimes the lips were amputated; and for the fourth offence the
punishment was death." Other crimes, again, "were punished at first by
reprimand by the chief before the community, and upon repetition the
offender was bound and kept in such a condition for some time."[34]
The Kamchadales "burn the hands of people who have been frequently
caught in theft, but for the first offence the thief must restore what
he hath stolen, and live alone {312} in solitude, without expecting
any assistance from others."[35] Among the Ainu, "for breaking into
the storehouse or dwelling of another, a very sound beating was
administered for the first offence; for the second, sometimes the nose
was cut off, sometimes the ears, and in some cases both the nose and
ears were forfeited. . . . Persons who had committed such a crime
twice were driven bag and baggage out of the home and village to which
they belonged."[36] Among the Murray Islanders repetition of an
offence such as murder or robbery generally incurred a penalty of
death, whereas the first offence was punished only by a fine.[37]
According to the Javanese Níti Sástra, if a man violates the law, he
may for the first transgression be punished by a pecuniary fine, for
the second by a punishment affecting his person, but for the third he
may be punished with death.[38] The Penal Code of the Chinese
prescribes that, for the first offence, individuals convicted of being
concerned in a theft shall be branded in the lower part of the left
arm with two words signifying thief, that for the second offence they
shall be branded again with the same words in the lower part of the
right arm, but that for the third offence they shall suffer death by
being strangled, after remaining the usual period in confinement.[39]
In Nepal, in the case of theft or petty burglary, for the first
offence one hand is cut off, for the second the other hand, whilst the
third offence is capital.[40] Herodotus mentions with approval that in
ancient Persia not even the king was allowed to put any one to death
for a single crime.[41] According to the Vendîdâd, the gravity of a
crime does not depend only on the gravity of the deed, but on its
frequency as well.[42] In ancient Rome the repetition of a crime
aggravated its punishment.[43] According to early English law, the
punishment upon a second conviction for nearly every offence was death
or mutilation.[44] In modern European legislation, the principle that
the criminality of certain crimes is increased by their repetition is
generally recognised.

[Footnote 29: Hinde, _The Last of the Masai_, p. 108.]

[Footnote 30: Decle, _op. cit._ p. 487.]

[Footnote 31: Powell, 'Wyandot Government,' in _Ann. Rep. Bur. Ethn._
i. 66.]

[Footnote 32: Herrera, _General History of the West Indies_,
iv. 338 _sqq._]

[Footnote 33: _Ibid._ iii. 255.]

[Footnote 34: Veniaminof, quoted by Petroff, 'Report on Alaska,' in
_Tenth Census of the United States_, p. 152.]

[Footnote 35: Krasheninnikoff, _History of Kamschatka_, p. 179.]

[Footnote 36: Batchelor, _Ainu and their Folk-lore_, p. 285.]

[Footnote 37: Hunt, in _Jour. Anthr. Inst._ xxviii. 6.]

[Footnote 38: Raffles, _History of Java_, i. 262.]

[Footnote 39: _Ta Tsing Leu Lee_, sec. cclxix. p. 285.]

[Footnote 40: Hodgson, _Miscellaneous Essays_, ii. 235.]

[Footnote 41: Herodotus, i. 137.]

[Footnote 42: _Vendîdâd_, iv. 17 _sqq._]

[Footnote 43: Mommsen, _Römisches Strafrecht_, p. 1044.]

[Footnote 44: Stephen, _op. cit._ i. 58.]

The more a moral judgment is influenced by reflection, the more it
scrutinises the character which manifests itself {313} in that
individual piece of conduct by which the judgment is occasioned. But
however superficial it be, it always refers to a will conceived of as
a continuous entity, to a person regarded as a cause of pleasure or
pain. This holds good of savage and civilised men alike. Even tame
animals, in response to a hurt or a benefit, behave differently
towards different persons according to their previous experience of
the agent.




CHAPTER XIII

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


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

After what has been said above the explanation is not far to seek.
Moral judgments are passed on conduct and character, because such
judgments spring from moral emotions; because the moral emotions are
retributive emotions; because a retributive emotion is a reactive
attitude of mind, either kindly or hostile, towards a living being (or
something looked upon in the light of a living being), regarded as a
cause of pleasure or as a cause of pain; and because a living being is
regarded as a true cause of pleasure or pain only in so far as this
feeling is assumed to be caused by its will. The correctness of this
explanation I consider to be proved by the fact that not only moral
emotions, but non-moral retributive emotions as well, are felt with
reference to phenomena {315} exactly similar in nature to those on
which moral judgments are passed.

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

[Footnote 1: Hiram Stanley, _Studies in the Evolutionary Psychology of
Feeling_, p. 154 _sq._]

Equivalent to injuries resulting from inanimate things are injuries
resulting accidentally from animate beings. If my arm or my foot gives
a push to my neighbour, and he is convinced that the push was neither
intended nor foreseen nor due to any carelessness whatever on my part,
surely he cannot feel angry with me. Why not? Professor Bain answers
this question as follows:--"Aware that absolute inviolability is
impossible in this world, and that we are all exposed by turns to
accidental injuries from our fellows, we have our minds disciplined to
let unintended evil go by without satisfaction of inflicting some
counter evil upon the offender."[2] Perhaps another answer would be
that an accidental injury in no way affects the "self-feeling" of the
sufferer. But neither of these explanations goes to the root of the
question. Let us once more remember that even a dog distinguishes
between being stumbled over and being kicked; and this can neither be
the result of discipline, nor have anything to do with the feeling of
self-regarding pride.[3] The reason is that the dog scents an enemy in
the person who kicks him, but not in the one who stumbles. My
neighbour, more clearly still, makes a distinction between a part of
my body and myself as a {316} volitional being, and finds that _I_ am
no proper object of resentment when the cause of the hurt was merely
my arm or my foot. An event is attributed to _me_ as its cause only in
proportion as it is considered to have been brought about by my will;
and _I_, regarded as a volitional and sensitive entity, can be a
proper object of resentment only as a cause of pain.

[Footnote 2: Bain, _Emotions and the Will_, p. 185.]

[Footnote 3: The Koussa Kafirs, according to Lichtenstein (_Travels in
Southern Africa_, i. 254), expect a similar discrimination from the
elephant; for "if an elephant is killed . . . they seek to exculpate
themselves towards the dead animal, by declaring to him solemnly, that
the thing happened entirely by accident, not by design."]

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

[Footnote 4: Seneca, _De ira_, iii. 26 _sq._]

[Footnote 5: Hartley, _Observations on Man_, i. 493.]

Deliberate resentment considers the motives of acts. Suppose that a
man tells us an untruth. Our feelings towards him are not the same if
he did it in order to save our life as if he did it for his own
benefit. Moreover, our anger abates, or ceases altogether, if we find
that he who injured us acted under compulsion, or under the influence
or a non-volitional impulse, too strong for any ordinary man to
resist. Then, the main cause or the injury was not his will, conceived
as a continuous entity. It yielded to the will of somebody else,
reluctantly, as it were out of necessity, or to a powerful conation
which forms no part of his real self. He was merely an instrument in
another's hands, or he was "beside himself," "beyond himself," "out of
his {317} mind." When we are angry, says Montaigne, "it is passion
that speaks, and not we."[6] The religious psychology of the ancient
Greeks ascribed acts committed upon sudden excitement of mind to the
_Ate_ which bewilders the mind and betrays the man into deeds which,
in his sober senses, he is heartily sorry for. Hence the Ate has in
its train the _Litae_--the humble prayers of repentance, which must
make good, before gods and men, whatever has been done amiss.[7] The
Vedic singer apologises, "It is not our own will, Varuna, that leads
us astray, but some seduction--wine, anger, dice, and our folly."[8]
In the Andaman Islands violent outbreaks of ill-temper or resentment
are looked upon as the result of a temporary "possession," and the
victim is, for the time being, considered unaccountable for his
actions.[9] Madness, as we have seen, is frequently attributed to
demoniacal possession. In ancient Ireland, again, it was believed to
be often brought on by malignant magical agency, usually the work of
some druid, hence in the Glosses to the Senchus Mór a madman is
repeatedly described as one "upon whom the magic wisp has been
thrown."[10] What a person does in madness is not an act committed by
_him_.

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

[Footnote 6: Montaigne, _Essais_, ii. 31 (_[OE]uvres_, p. 396).]

[Footnote 7: _Iliad_, ix. 505 _sqq._ Müller, _Dissertations on the
Eumenides_, p. 108.]

[Footnote 8: _Rig-Veda_, vii. 86. 6.]

[Footnote 9: Man, in _Jour. Anthrop. Inst._ xii. 111.]

[Footnote 10: Joyce, _Social History of Ancient Ireland_, i. 224.]

[Footnote 11: Shakespeare, _Hamlet_, v. 2.]

We resent not only acts and volitions, but also omissions, though
generally less severely; and when a hurt is attributed to want of
foresight, our resentment is, _ceteris paribus_, proportionate to the
degree of carelessness {318} which we lay to the offender's charge. A
person appears to us as the cause of an injury which we think he could
have prevented by his will. But a hurt resulting from carelessness is
not to the same extent as an intentional injury caused by the will.
And the less foresight could have been expected in a given case, the
smaller share has the will in the production of the event.

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

[Footnote 12: _Supra_, ch. iii.]

Passing to the emotion of gratitude, we find a similar resemblance
between the phenomena which give rise to this emotion and those which
call forth moral approval. We may feel some kind of retributive
affection for inanimate objects which have given us pleasure; "a man
grows fond of a snuff-box, of a pen-knife, of a staff which he has
long made use of, and conceives something like a real love and
affection for them."[13] But gratitude, involving a desire to please
the benefactor, can reasonably be felt towards such objects only as
are themselves capable of feeling pleasure. Moreover, on due
deliberation we do not feel grateful to a person who benefits us by
pure accident. Since gratitude is directed towards the assumed cause
of pleasure, and since a person is regarded as a cause only in his
capacity of a volitional being, gratitude presupposes that the
pleasure shall be due to his will. For the same reason motives are
also taken into consideration by the benefited party. As Hutcheson
observes, "bounty from a donor apprehended as morally evil, or
extorted by force, or conferred with some view of self-interest, will
not procure real good-will; nay, it may raise indignation."[14] {319}
Like moral approval, gratitude may be called forth not only by acts
and volitions, but by absence of volitions, in so far as this absence
is traceable to a good disposition of will. And, like the moral judge,
the grateful man is, in his retributive feeling, influenced by the
notion he forms of the benefactor's character.

[Footnote 13: Adam Smith, _Theory of Moral Sentiments_, p. 136.]

[Footnote 14: Hutcheson, _Inquiry concerning Moral Good and Evil_,
p. 157.]

The cognitions by which non-moral resentment and gratitude are
determined are thus, as regards their general nature, precisely
similar to those which determine moral indignation and approval.
Whether moral or non-moral, a retributive emotion is essentially
directed towards a sensitive and volitional entity, or self, conceived
of as the cause of pleasure or the cause of pain. This solves a
problem which necessarily baffles solution in the hands of those who
fail to recognise the emotional origin of moral judgments, and which,
when considered at all, has, I think, never been fully understood by
those who have essayed it. It has been argued, for instance, that
moral praise and blame are not applied to inanimate things and those
who commit involuntary deeds, because they are administered only
"where they are capable of producing some effect";[15] that moral
judgment is concerned with the question of compulsion, because "only
when a man acts morally of his own free will is society sure of
him";[16] that we do not regard a lunatic as responsible, because we
know that "his mind is so diseased that it is impossible by moral
reprobation alone to change his character so that it maybe
subsequently relied upon."[17] The bestowal of moral praise or blame
on such or such an object is thus attributed to utilitarian
calculation;[18] whereas in reality it is determined by the nature of
the moral emotion which lies at the bottom of the judgment. And, as
Stuart Mill observes (though he never seems to have realised the full
import of his objection), whilst we may administer praise and blame
with the express design of influencing conduct, "no anticipation of
salutary effects {320} from our feeling will ever avail to give us the
feeling itself."[19]

[Footnote 15: James Mill, _Fragment on Mackintosh_, p. 370.]

[Footnote 16: Ziegler, _Social Ethics_, p. 56 _sq._]

[Footnote 17: Clifford, _Lectures and Essays_, p. 296.]

[Footnote 18: See also James Mill, _op. cit._ pp. 261, 262, 375.]

[Footnote 19: Stuart Mill, in a note to James Mill's _Analysis of the
Phenomena of the Human Mind_, ii. 323.]

       *       *       *       *       *

The nature of the moral emotions also gives us the key to another
important problem--a problem which has called forth endless
controversies--namely, the co-existence of moral responsibility with
the general law of cause and effect. It has been argued that
responsibility, and moral judgments generally, are inconsistent with
the notion that the human will is determined by causes; that "either
free-will is a fact, or moral judgment a delusion." The argument has
been well summed up by Sir Leslie Stephen as follows:--"Moral
responsibility, it is said, implies freedom. A man is only responsible
for that which he causes. Now the _causa causæ_ is also the _causa
causati_. If I am caused as well as cause, the cause of me is the
cause of my conduct; I am only a passive link in the chain which
transmits the force. Thus, as each individual is the product of
something external to himself, his responsibility is really shifted to
that something. The universe or the first cause is alone responsible,
and since it is responsible to itself alone, responsibility becomes a
mere illusion."[20] We are told that, if determinism were true, human
beings would be no more proper subjects of moral valuation than are
inanimate things; that the application of moral praise and blame would
be "in itself as absurd as to applaud the sunrise or be angry at the
rain";[21] that the only admiration which the virtuous man might
deserve would be the kind of admiration "which we justly accord to a
well-made machine."[22] Nor are these inferences from the doctrine of
determinism only weapons forged by its opponents; they are shared by
many of its own adherents. Richard Owen and his followers maintained
that, since a man's character is made _for_ him, not _by_ him, there
is no justice in punishing {321} him for what he cannot help.[23] To
Stuart Mill responsibility simply means liability to punishment,
inflicted for a utilitarian purpose.[24] So also Prof. Sidgwick--whose
attitude towards the free-will theory is that of a sceptic--argues
that the common retributive view of punishment, and the ordinary
notions of "merit," "demerit," and "responsibility," involve the
assumption that the will is free, and that these terms, if used at
all, have to be used in new significations. "If the wrong act," he
says, "and the bad qualities of character manifested in it, are
conceived as the necessary effects of causes antecedent or external to
the existence of the agent, the moral responsibility--in the ordinary
sense--for the mischief caused by them can no longer rest on him. At
the same time, the Determinist can give to the terms 'ill-desert' and
'responsibility' a signification which is not only clear and definite,
but, from an utilitarian point of view, the only suitable meaning. In
this view, if I affirm that A is responsible for a harmful act, I mean
that it is right to punish him for it; primarily, in order that the
fear of punishment may prevent him and others from committing similar
acts in future."[25]

[Footnote 20: Leslie Stephen, _Science of Ethics_, p. 285.]

[Footnote 21: Martineau, _Types of Ethical Theory_, ii. 41 _sq._]

[Footnote 22: Balfour, _Foundations of Belief_, p. 25.]

[Footnote 23: Stuart Mill, _Examination of Sir William Hamilton's
Philosophy_, p. 506.]

[Footnote 24: _Ibid._ p. 506 _sqq._]

[Footnote 25: Sidgwick, _Methods of Ethics_, p. 71 _sq._]

If these conclusions are correct it is obvious that, whether the
infliction of punishment be justifiable or not, the _feeling_ of moral
indignation or moral approval is, from the deterministic point of
view, absurd. And yet, as a matter of fact, these emotions are felt by
determinists and libertarians alike. Apparently, they are not in the
least affected by the notion that the human will is subject to the
general law of cause and effect. Emotions are always determined by
specific cognitions, and last only as long as the influence of those
cognitions lasts. It makes me sorry to hear that some evil has
befallen a friend; but my sorrow disappears at once when I find that
the rumour was false. I get angry with a person who hurts me; but my
anger subsides as soon as I recognise that the hurt was purely
accidental. My indignation is aroused by an {322} atrocious crime; but
it ceases entirely when I hear that the agent was mad. On the other
hand, however convinced I am that a person's conduct and character are
in every detail a product of causes, that does not prevent me from
feeling towards him retributive emotions--either anger or gratitude,
or moral resentment or approval. Hence I conclude that a retributive
emotion is not essentially determined by the cognition of free-will. I
hold that Spinoza is mistaken in his assumption that men feel more
love or hatred towards one another than towards anything else, because
they think themselves to be free.[26] And I attribute the conception
that moral valuation is inconsistent with determinism either to a
failure to recognise the emotional origin of moral judgments or to
insufficient insight into the true nature of the moral emotions. At
the same time it seems easy to explain the fallacy which lies at the
bottom of that conception.

[Footnote 26: Spinoza, _Ethica_, iii. 49, Note.]

We have seen that the object of moral approval and disapproval is the
will, and that a person's responsibility is lessened in proportion as
his will is exposed to the pressure of non-volitional conations. Full
responsibility thus presupposes freedom from such pressure, and,
particularly, freedom from external compulsion. Hence the inference
that it also presupposes freedom from causation, and that complete
determination involves complete irresponsibility. Compulsion is
confounded with causation; and this confusion is due to the fact that
the cause which determines the will is actually looked upon in the
light of a constraining power outside the will.

The popular mind has a strong belief in the law of cause and effect.
When reflecting on the matter, it admits that everything which happens
in this world has a cause; and if the natural cause is hidden, it
readily calls in a supernatural cause to account for the event. Now,
in the case of human volitions the chain of causation is often
particularly obscure; as Spinoza said, whilst men are conscious of
their volitions and desires, they "never even {323} dream, in their
ignorance, of the causes which have disposed them so to wish and
desire."[27] Hence, when in a philosophic mood, they are liable to
attribute their acts to the influence of an external power ruling over
human affairs, a god or an all-powerful fate. No doubt, Providence and
Fate[28] may effect their purposes without the will of man as their
tool; what happens "by chance," being frequently no less wonderful
than any decree of a human will, may likewise be traced to a
supernatural cause. But, on the other hand, the fact that the deeds of
men are generally preceded by volitions, is so obvious that it could
not escape even the simplest mind--indeed, so strongly are primitive
men impressed by this fact that they are apt to attribute every event
to a will. Acknowledging, then, the connection between volition and
deed, the fatalist regards the former only as an instrument in the
hands of a force outside the agent, which compels his will to execute
its plans. Sometimes it reaches its goal in a way quite unforeseen by
the agent himself. Muhammed said, "When God hath ordered a creature to
die in any particular place, He causeth his wants to direct him to
that place";[29] and it is a popular saying throughout Islam that
"whenas Destiny descends she blindeth human sight."[30] Sometimes the
external power causes its victim to will its decree, by exciting in
him some irresistible passion, as when Zeus urged Clytemnestra to the
slaughter of Agamemnon; or the volitions of a person are themselves
regarded as decreed by that power. In Wärend, in Sweden, when somebody
has killed another, as also when the manslayer himself suffers the
penalty of death, the women say, full of compassion, "Well, this was
his destiny, to be sure," or "Poor fellow, it was a pitiful fate."[31]
In one of the Pahlavi texts the following words are put into the mouth
of the Spirit of {324} Wisdom:--"Even with the might and powerfulness
of wisdom and knowledge, even then it is not possible to contend with
destiny. Because, when predestination as to virtue, or as to the
reverse, comes forth, the wise becomes wanting in duty, and the astute
in evil becomes intelligent; the faint-hearted becomes braver, and the
braver becomes faint-hearted; the diligent becomes lazy, and the lazy
acts diligently. Just as is predestined as to the matter, the cause
enters into it, and thrusts out everything else."[32]

[Footnote 27: _Ibid._ pt. i. Appendix.]

[Footnote 28: In a Pahlavi text fate is defined as "that which is
ordained from the beginning," and divine providence as that which the
sacred beings "also grant otherwise" (_Dînâ-î Maînôg-î Khirad_,
xxiv. 6 _sq._).]

[Footnote 29: Lane, _Arabian Society in the Middle Ages_, p. 6.]

[Footnote 30: Burton, in his translation of the _Arabian Nights_, i.
62, n. 2.]

[Footnote 31: Hyltén-Cavallius, _Wärend och Wirdarne_, i. 206.]

[Footnote 32: _Dînâ-î Maînôg-î Khirad_, xxiii. 3 _sqq._]

Nor is it only the popular mind that, when human volitions are
concerned, interprets causation as compulsion. Even such philosophers
as Hamilton[33] and Mansel[34] seemed quite unable to distinguish
between determinism and fatalism. Professor Laurie likewise
observes:--"Determinism is the term adopted of late years to veil
fatalism and confound issues . . . . Freedom or fate, these are the
sole alternatives."[35] Surely, it is those who identify determinism
with fatalism that "confound issues." And a similar confusion lurks
behind the main argument which has been adduced in support of
free-will. It is said that "I ought" implies "I can," and that men are
not accountable for what they cannot avoid. This is perfectly true if
by "cannot" is meant compulsion, and by "can" freedom from compulsion.
But it is certainly not true if "I can" is intended to mean that "I"
am a first cause, not determined by anything else.

[Footnote 33: Hamilton, _Lectures on Metaphysics_, ii. 410 _sqq._]

[Footnote 34: Mansel, _Prolegomena Logica_, p. 329 _sqq._]

[Footnote 35: Laurie, _Ethica_, pp. 307, 319.]

When a person's will is believed to be constrained by a power outside
him, he can obviously not be held responsible for what he does under
the influence of such constraint. We are responsible only for that
which is due to our will. A licentious man who has grown up in a
corrupt society is less blamable than an equally licentious man who
has always lived under conditions favourable to virtue; and if we hear
of a criminal that he was kidnapped as a child by a band of
pickpockets and trained to their profession, we {325} no doubt look
upon him with some indulgence. In these cases, however, it may be said
that, though the person's conduct is largely due to the influence of
external circumstances upon his will, this influence was not
irresistible, that he might have saved himself with an effort of will,
and that consequently he is not wholly irresponsible. But in the case
of a restraining destiny no escape is possible; the compulsion is
complete. Hence the logical outcome of radical fatalism is a denial of
all moral imputability, and a repudiation of all moral judgment.[36]

[Footnote 36: Of the inhabitants of North-Eastern Africa, Munzinger
observes (_Ostafrikanische Studien_, p. 66):--"Seien sie Christen,
Heiden, odor Mohammedaner, schreiben sie Leben und Tod, Glück und
Unglück, Tugend und Verbrechen der unmittelbaren Hand Gottes zu. Mit
dieser blinder Nothwendigkeit entschuldigt sich der Missethäter,
tröstet sich der Unglückliche." _Cf._ also Doughty, _Arabia Deserta_,
i. 155, on the Bedouins. However, men are not philosophers in the
ordinary practice of life, hence the fatalist is generally as ready as
anybody else to judge on his neighbour's conduct. According to various
ancient writers, the power of destiny is limited so as not to exclude
personal responsibility (see Schmidt, _Ethik der alten Griechen_, i.
59 _sq._).]

Not so with determinism. Whilst fatalism presupposes the existence of
a person who is constrained by an outward power, determinism regards
the person himself as in every respect a product of causes. It does
not assume any part of his will to have existed previous to his
formation by these causes; his will is not constrained by them, it is
made by them. When we say of a person that he is influenced by
external circumstances or subdued by fate, we regard _him_ as existing
independently of that which influences or subdues him, we attribute to
him an innate character which is acted upon from the outside. He would
have been different if he had grown up under different conditions of
life, or if fate had left him alone. But it would be absolutely
meaningless to say that he would be different if the causes to which
he owes his existence had been different; for instance, if he were the
offspring of different parents. This shows that we distinguish between
the original self of a person and the self which is partly innate and
partly the product of external circumstances. His innate character
belongs to his original {326} self; and, strictly speaking, it is on
the innate character only that the scrutinising moral judge, so far as
possible, passes his judgment, carefully considering the degree of
pressure to which it has been exposed both from the non-voluntary part
of the individual himself and from the outside world.[37] According to
the fatalist, the innate character is _compelled_; hence personal
responsibility is out of the question. According to the determinist
the innate character is _caused_; but this has nothing whatever to do
with the question of responsibility. The moral emotions are no more
concerned with the origin of the innate character than the aesthetic
emotions are concerned with the origin of the beautiful object. In
their capacity of retributive emotions, the moral emotions are
essentially directed towards sensitive and volitional entities
conceived, not as uncaused themselves, but only as causes of pleasure
or pain.

[Footnote 37: That the proper subject of moral judgment is the innate
character was emphasised by Schopenhauer in his prize-essays on _Die
Freiheit des Willens_ (_Sämmtliche Werke_, vii. 83 _sqq._) and _Die
Grundlage der Moral_ (_ibid._ vii. 273 _sqq._). The innate character,
he says, that real core of the whole man, contains the germ of all his
virtues and vices. And though Schopenhauer be mistaken in his
statement that a person's character always remains the same, it seems
to me indisputable that the succeeding changes to which it may be
subject are imputable to _him_ only in so far as they are caused by
his innate character.]




CHAPTER XIV

PRELIMINARY REMARKS--HOMICIDE IN GENERAL


WE have discussed the general nature of those phenomena which have a
tendency to evoke moral blame or moral praise. We have seen that moral
judgments are passed on conduct and character, and we have seen why
this is the case. It now remains for us to examine the particular
modes of conduct which are subject to moral valuation, and to consider
how these modes of conduct are judged of by different peoples and in
different ages.

If carried out in every detail such an investigation could never come
to an end. Among other things, it would have to take into account all
customs existing among the various races of men, since every custom
constitutes a moral rule. And the impossibility of any such
undertaking becomes apparent when we consider the extent to which the
conduct of man, and especially of savage man, is hampered by custom.
Among the Wanika, for instance, "if a man dares to improve the style
of his hut, to make a larger doorway than is customary; if he should
wear a finer or different style of dress to that of his fellows, he is
instantly fined."[1] If, during the performance of a ceremony, the
ancestors of an Australian native were in the habit of painting a
white line across the forehead, their descendant must do the same.[2]
Dr. Nansen's statement with reference to the Greenlanders, {328} that
their communities had originally customs and fixed rules for every
possible circumstance,[3] is essentially true of many, if not all, of
the lower races.

[Footnote 1: New, _Life, Wanderings, and Labours in Eastern Africa_,
p. 110.]

[Footnote 2: Spencer and Gillen, _Native Tribes of Central Australia_,
p. 11.]

[Footnote 3: Nansen, _Eskimo Life_, p. 104.]

It is necessary, then, that we should restrict ourselves to the more
important modes of conduct with which the moral consciousness of
mankind is concerned. These modes of conduct may be conveniently
divided into six groups. The first group includes such acts,
forbearances, and omissions as directly concern the interests of other
men, their life or bodily integrity, their freedom, honour, property,
and so forth. The second includes such acts, forbearances, and
omissions as chiefly concern a man's own welfare, such as suicide,
temperance, asceticism. The third group, which partly coincides with,
but partly differs from, both the first and the second, refers to the
sexual relations of men. The fourth includes their conduct towards the
lower animals; the fifth, their conduct towards dead persons; the
sixth, their conduct towards beings, real or imaginary, that they
regard as supernatural. We shall examine each of these groups
separately, in the above order. And, not being content with a mere
description of facts, we shall try to discover the principle which
lies at the bottom of the moral judgment in each particular case.

       *       *       *       *       *

It is commonly maintained that the most sacred duty which we owe our
fellow-creatures is to respect their lives. I venture to believe that
this holds good not only among civilised nations, but among the lower
races as well; and that, if a savage recognises that he has any moral
obligations at all to his neighbours, he considers the taking of their
lives to be a greater wrong than any other kind of injury inflicted
upon them.

Among various uncivilised peoples, however, human life is said to be
held very cheap.

The Australian Dieyerie, we are told, would for a mere trifle kill
their dearest friend.[4] In Fiji there is an "utter disregard of {329}
the value of human life."[5] A Masai will murder his friend or
neighbour in a fight over a herd of captured cattle, and "live not a
whit the less merrily afterwards."[6] Among the Bachapins, a Bechuana
tribe, murder "excites little sensation, excepting in the family of
the person who has been murdered; and brings, it is said, no disgrace
upon him who has committed it; nor uneasiness, excepting the fear of
their revenge."[7] The Oráons of Bengal "are ready to take life on
very slight provocation," and Colonel Dalton doubts whether they see
any moral guilt in it.[8] Some of the Himalayan mountaineers are
reported to put men to death merely for the satisfaction of seeing the
blood flow and of marking the last struggles of the victim.[9] Among
the Pathans, on the north-western frontier of the Punjab, "there is
hardly a man whose hands are unstained," and each person "counts up
his murders."[10]

[Footnote 4: Gason, 'Manners and Customs of the Dieyerie Tribe,' in
Woods, _Native Tribes of South Australia_, p. 258.]

[Footnote 5: Williams and Calvert, _Fiji and the Fijians_, p. 115.]

[Footnote 6: Johnston, _Kilima-njaro Expedition_, p. 419.]

[Footnote 7: Burchell, _Travels in the Interior of Southern Africa_,
ii. 554.]

[Footnote 8: Dalton, _Descriptive Ethnology of Bengal_, p. 256.]

[Footnote 9: Fraser, _Journal of a Tour through the Him[=a]l[=a]
Mountains_, p. 267.]

[Footnote 10: Temple, quoted by Spencer, _Principles of Ethics_, i.
343. For other instances of the indifference of savages to human life,
see Egede, _Description of Greenland_, p. 123; Cranz, _History of
Greenland_, i. 177; Holm, 'Ethnologisk Skizze af Angmagsalikerne,' in
_Meddeleser om Grönland_, x. 87, 179 _sq._; Coxe, _Russian Discoveries
between Asia and America_, p. 257 (Aleuts of Unalaska);
Krasheninnikoff, _History of Kamtschatka_, p. 204; Steller,
_Beschreibung von dem Lande Kamtschatka_, p. 294; Boyle, _Adventures
among the Dyaks of Borneo_, p. 116 (Malays); Powell, _Wanderings in a
Wild Country_, p. 262 (aborigines of New Britain); Scaramucci and
Giglioli, 'Notizie sui Danakil,' in _Archivio per antropologia e la
etnologia_, xiv. 26; Wilson and Felkin, _Uganda_, ii. 310 (Gowane);
Schweinfurth, _Heart of Africa_, i. 286 (Bongo); Arnot, _Garenganze_,
p. 71 (Barotse); Tuckey, _Expedition to Explore the River Zaire_, p.
383 (Congo natives); Waul, _Five Years with the Congo Cannibals_, p.
105 (Bolobo).]

On the other hand, there are uncivilised peoples among whom homicide
or murder is said to be hardly known.

Among the Omahas, "before liquor was introduced there were no
murders, even when men quarrelled."[11] Captain Lyon could learn of no
instances of manslaughter having ever occurred among the Eskimo of
Igloolik.[12] In Tutuila, of the Samoa group, according to Brenchley,
there had been but one case of assassination in the course of twenty
years.[13] The Veddahs of Ceylon know of manslaughter only as a
punishment.[14] {330} The Bedouin of the Euphrates, says Mr. Blunt, "is
essentially humane, and never takes life needlessly. If he has killed
a man in war he rather conceals the fact than proclaims it aloud,
while murder or even homicide is almost unknown among the tribes."[15]
Among the Bakwiri, in Cameroon, Zoller never heard of any person
having killed a member of his own community.[16] Murders, says
Caillié, "are rare among the Bambaras, and never committed by the
Mandingoes."[17] Among the Wanika "wilful cold-blooded murders are
almost unknown."[18] Among the Basutos perfect safety is enjoyed "on
roads where the traveller might have been robbed a hundred times over
without the least hope of aid, and in houses where the doors and
windows have neither bolts nor bars," and cases of murder are very
rare.[19]

[Footnote 11: Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._
iii. 369.]

[Footnote 12: Lyon, _Private Journal_, p. 350.]

[Footnote 13: Brenchley, _Jottings during the Cruise of H.M.S.
"Curaçoa" among the South Sea Islands_, p. 58.]

[Footnote 14: Sarasin, _Ergebnisse naturwissenschaftlicher Forschungen
auf Ceylon_, iii. 539. _Cf._ Tennent, _Ceylon_, ii. 444. Hartshorne,
in _Indian Antiquary_, viii. p. 320.]

[Footnote 15: Blunt, _Bedouin Tribes of the Euphrates_, ii. 203. _Cf._
_ibid._ ii. 207.]

[Footnote 16: Zöller, _Kamerun_, i. 188.]

[Footnote 17: Caillié, _Travels through Central Africa_, i. 353.]

[Footnote 18: New, _op. cit._ p. 98.]

[Footnote 19: Casalis, _Basutos_, p. 301. For other instances, see
Hall, _Arctic Researches_, p. 571 (Eskimo); Dobrizhoffer, _Account of
the Abipones_, ii. 148; Turner, _Samoa_, p. 178; Ellis, _Tour through
Hawaii_, p. 429; Brooke, _Ten Years in Saráwak_, i. 61 (Sea Dyaks);
Low, _Sarawak_, p. 133; Marsden, _History of Sumatra_, p. 471 (Poggi
Islanders); Steller, _De Sangi-Archipel_, p. 26; Riedel, _De sluik- en
kroesharige rassen tusschen Selebes en Papua_, p. 41 (Ambon and Uliase
Islanders); von Siebold, _Aino auf der Insel Yesso_, pp. 11, 35;
Munzinger, _Ostafrikanische Studien_, p. 532 (Barea and Kunáma);
Holub, _Seven Years in South Africa_, ii. 319 (Marutse); Maclean,
_Compendium of Kafir Laws and Customs_, pp. 61, 143 _sq._; Shooter,
_Kafirs of Natal_, p. 137.]

In other instances homicide is expressly said to be regarded as wrong.

The Greenlanders described by Dr. Nansen hold it atrocious to kill
a fellow-creature, except in some particular cases.[20] The Dacotahs
say that it is a great crime to take their fellow's life, unless in
revenge, "because all have a right to live."[21] In Tierra del Fuego
homicide rarely occurs, as Mr. Bridges remarks, because of an
inveterate custom according to which human life is held sacred: "le
meurtrier est mis au ban de ses compatriotes; isolé de tous, il est
fatalement condamné à périr de faim ou à tomber un jour sous les coups
d'un groupe de justiciers improvisés."[22] The Andaman Islanders
condemn murder as _y[=u]bda_, or sin.[23] The natives of Botany Bay,
New {331} South Wales, though a trivial offence in their ideas
justifies the murder of a man, "highly reprobate the crime when
committed without what they esteem a just cause."[24] According to Mr.
Curr's experience, the Australian Black undoubtedly feels that murder
is wrong, and its committal brings remorse; even after the
perpetration of infanticide or massacres, though both are practised
without disguise, those engaged in them are subject to remorse and low
spirits for some time.[25]

[Footnote 20: Nansen, _Eskimo Life_, p. 162.]

[Footnote 21: Prescott, in Schoolcraft, _Indian Tribes of the United
States_, ii. 195.]

[Footnote 22: Hyades and Deniker, _Mission scientifique du Cap Horn_,
vii. 374, 243.]

[Footnote 23: Man, in _Jour. Anthr. Inst._ xii. 112.]

[Footnote 24: Barrington, _History of New South Wales_, p. 19. _Cf._
Lumholtz, _Among Cannibals_, p. 126 (natives of Northern
Queensland).]

[Footnote 25: Curr, _The Australian Race_, i. 100, 43 _sq._ For other
instances, see Keating, _Expedition to the Source of St. Peter's
River_, i. 127 (Potawatomis); Harmon, _Journal of Voyages in the
Interior of North America_, p. 348 (Indians on the east side of the
Rocky Mountains); Hall, _Arctic Researches_, p. 572 (Eskimo); Mariner,
_Natives of the Tonga Islands_, ii. 162; Macdonald, _Oceania_, p. 208
(Efatese); Yate, _Account of New Zealand_, p. 145; Arbousset and
Daumas, _Exploratory Tour to the North-East of the Colony of the Cape
of Good Hope_, p. 322 (Bechuanas); Fritsch, _Die Eingeborenen
Süd-Afrikra's_, p. 322 (Hottentots).]

It is of particular importance in this connection to note that, in
early civilisation, blood-revenge is regarded not as a private matter
only, but as a duty, and that, where this custom does not prevail, the
community punishes the murderer, frequently with death. We may without
hesitation accept Professor Tylor's statement that "no known tribe,
however low and ferocious, has ever admitted that men may kill one
another indiscriminately."[26] In every society--even where human life
is, generally speaking, held in low estimation--custom prohibits
homicide within a certain circle of men. But the radius of the circle
varies greatly.

[Footnote 26: Tylor, 'Primitive Society,' in _Contemporary Review_,
xxi. 714.]

Savages carefully distinguish between an act of homicide committed
within their own community and one where the victim is a stranger.
Whilst the former is under ordinary circumstances disapproved of, the
latter is in most cases allowed, and often regarded as praiseworthy.
It is a very common notion in savage ethics that the chief virtue of a
man is to be successful in war and to slay many enemies.

Among the Káfirs of the Hindu-Kush "killing strangers might or
might not be considered inexpedient, but it would {332} hardly be
considered a crime"; killing fellow-tribesmen, on the other hand, is
looked upon in a very different light.[27] The Koriaks do not regard
murder as a great crime, unless it occur within their own tribe.[28]
The early Aleuts considered the killing of a companion a crime worthy
of death, "but to kill an enemy was quite another thing."[29] To an
Aht Indian the murder of a man is no more than the killing of a dog,
provided that the victim is not a member of his own tribe.[30]
According to Humboldt, the natives of Guiana "detest all who are not
of their family, or their tribe; and hunt the Indians of a
neighbouring tribe, who live at war with their own, as we hunt
game."[31] In the opinion of the Fuegians, "a stranger and an enemy
are almost synonymous terms," hence they dare not go where they have
no friends, and where they are unknown, as they would most likely be
destroyed.[32] The Australian Black nurtures an intense hatred of every
male at least of his own race who is a stranger to him, and would
never neglect to assassinate such a person at the earliest moment that
he could do so without risk to himself.[33] In Melanesia, also, a
stranger as such was generally throughout the islands an enemy to be
killed.[34]

[Footnote 27: Scott Robertson, _Káfirs of the Hindu-Kush_, p. 194.]

[Footnote 28: Krasheninnikoff, _op. cit._ p. 232.]

[Footnote 29: Veniaminof, quoted by Petroff, 'Report on Alaska,' in
_Tenth Census of the Untied States_, p. 155.]

[Footnote 30: Sproat, _Scenes and Studies of Savage Life_, p. 152.]

[Footnote 31: von Humboldt, _Personal Narrative of Travels_, v. 422.]

[Footnote 32: Stirling, in _South Ammerican Missionary Magazine_, iv.
11. Bridges, in _A Voice for South America_, xiii. 210.]

[Footnote 33: Curr, _The Australian Race_, i. 64, 85 _sq._ Mathew, in
_Jour. & Proceed. Roy. Soc. N. S. Wales_, xviii. 398.]

[Footnote 34: Codrington, _Melanesians_, p. 345.]

In Savage Island the slaying of a member of another tribe--that is,
a potential enemy--"was a virtue rather than a crime."[35] To a young
Samoan it was the realisation of his highest ambition to be publicly
thanked by the chiefs for killing a foe in mortal combat.[36]
"According to Fijian beliefs, men who have not slain any enemy are, in
the other world, compelled to beat dirt with their clubs--the most
degrading punishment the native mind can conceive--because they used
their club to so little purpose;[37] and in Futuna it was deemed no
less necessary to have poured out blood on the field of battle in
order to hold a part in the happy future life.[38] In the Western
islands of Torres Straits "it was a meritorious deed to kill
foreigners either in fair fight {333} or by treachery, and honour and
glory were attached to the bringing home of the skulls of the
inhabitants of other islands slain in battle."[39] In the Solomon
Islands,[40] New Guinea,[41] and various parts of the Malay
Archipelago, he who has collected the greatest number of human heads
is honoured by his tribe as the bravest man; and some peoples do not
allow a man to marry until he has cut off at least one human head.[42]
Among many of the North American Indians, again, he who can boast of
the greatest number of scalps is the person most highly esteemed.[43]
Among the Seri Indians the highest virtue "is the shedding of alien
blood; and their normal impulse on meeting an alien is to kill, unless
deterred by fear."[44] Among the Chukchi "it is held criminal to
thieve or murder in the family or race to which a person belongs; but
these crimes committed elsewhere are not only permitted, but held
honourable and glorious."[45] So, too, the Gallas consider it
honourable to kill an alien, though criminal to kill a countryman.[46]

[Footnote 35: Thomson, _Savage Island_, p. 104. See also _ibid._ p. 94.]

[Footnote 36: Pritchard, _Polynesian Reminiscences_, p. 57.]

[Footnote 37: Seemann, _Viti_, p. 401. _Cf._ Williams and Calvert,
_op. cit._ p. 97 _sq._; Erskine, _Islands of the Western Pacific_,
p. 248.]

[Footnote 38: Smith, in _Jour. Polynesian Society_, i. 39.]

[Footnote 39: Haddon, in _Reports of the Cambridge Anthropological
Expedition to Torres Straits_, v. 277.]

[Footnote 40: Romilly, _Western Pacific_, p. 73. Penny, _Ten Years in
Melanesia_, p. 46. Codrington, _op. cit._ p. 345.]

[Footnote 41: Romilly, _Western Pacific_, p. 76.]

[Footnote 42: Bock, _Head-Hunters of Borneo_, pp. 216, 221, &c.
(Dyaks). Bickmore, _Travels in the East Indian Archipelago_, p. 205
(Alfura of Ceram). Dalton, _op. cit._ p. 40 (Nagas of Upper Assam).]

[Footnote 43: The well-known practice of scalping, though very common,
was not universal among the North American Indians (see Gibbs, 'Tribes
of Western Washington and Northwestern Oregon,' in _Contributions to
N. American Ethnology_, i. 192; Powers, _Tribes of California_, p. 321).]

[Footnote 44: McGee, 'Seri Indians,' in _Ann. Rep. Bur. Ethnol._
xvii. 132.]

[Footnote 45: Georgi, _Russia_, iii. 183.]

[Footnote 46: Macdonald, _Africana_, i. 229. For other instances, see
Harmon, _op. cit._ p. 301 (Tacullies); Burton, _City of the Saints_,
p. 139 (Dacotahs); Macpherson, _Memorials of Service in India_, p.
94 (Kandhs); MacMahon, _Far Cathay_, p. 262 (Indo-Burmese border
tribes); Macdonald, _Africana_, i. 194 _sq._ (Eastern Central
Africans); Johnston, _Kilima-njaro Expedition_, p. 419 (Masai).]

At the same time there are, among the lower races, various instances
in which the rule, "Thou shalt not kill," applies even to foreigners.
Hospitality, as will be seen in a subsequent chapter, is a stringent
duty in the savage world. Custom requires that the host should
entertain and protect a stranger who comes as his guest, and by
killing him the host would perpetrate an outrage hardly possible.
Moreover, even in the case of intertribal relations, we must not
conclude that what is allowed in war is also allowed in times of
peace. The prohibition of homicide may extend beyond the tribal
border, to {334} members of different tribes who for some reason or
other are on friendly terms with each other.[47] We must not suppose
that a tribe of savages generally either lives in a state of complete
isolation, or is always at odds with its neighbours. In Australia, for
instance, one tribe of natives, as a rule, entertains amicable
relations with one, two, or more other tribes.[48] Among the Central
Australian natives, say Messrs. Spencer and Gillen, "there is no such
thing as one tribe being in a constant state of enmity with another";
on the contrary, where two tribes come into contact with one another
on the border land of their respective territories, friendly feelings
are maintained between the members of the two.[49] Some uncivilised
peoples are even said to have no wars. The Veddahs of Ceylon never
make war upon each other.[50] According to the reports of the oldest
inhabitants of Umnak and Unalaska, the people there had never been
engaged in war either among themselves or with their neighbours,
except once with the natives of Alaska.[51] To the Greenlanders
described by Dr. Nansen war is "incomprehensible and repulsive, a
thing for which their language has no word."[52]

[Footnote 47: See, _e.g._, Scott Robertson, _op. cit._ p. 194 (Káfirs
of the Hindu-Kush).]

[Footnote 48: Curr, _The Australian Race_, i. 62 _sq._]

[Footnote 49: Spencer and Gillen, _Native Tribes of Central
Australia_, p. 32.]

[Footnote 50: Sarasin, _op. cit._ iii. 488.]

[Footnote 51: Coxe, _op. cit._ p. 244.]

[Footnote 52: Nansen, _Eskimo Life_, p. 162.]

That savages to some extent recognise the existence of intertribal
rights in times of peace is obvious from certain customs connected
with their wars. Some South Sea Islanders and North American Indians
consider it necessary for a party which is about to attack another to
give notice beforehand of their intention, in order that their
opponents may be prepared to meet them.[53] The cessation of
hostilities is often accompanied by the conclusion of a special treaty
and by ceremonies calculated to make it binding.[54] The Tahitians,
for instance, wove a wreath of {335} green boughs furnished by each
side, exchanged two young dogs, and, having also made a band of cloth
together, offered the wreath and the band to the gods with
imprecations on the side which should first violate so solemn a treaty
of peace.[55] Nor does savage custom always allow indiscriminate
slaughter even in warfare. The inviolability of heralds is not
infrequently recognised.[56] Among the aborigines of New South Wales
the tribal messenger known to be a herald by the red net which he
wears round his forehead, passes in safety between and through hostile
tribes;[57] and among the North American Omahas "the bearer of a peace
pipe was generally respected by the enemy, just as the bearer of a
flag of truce is regarded by the laws of war among the so-called
civilised nations."[58] And many uncivilised races have made it a rule
in war to spare the weak and helpless.

[Footnote 53: Hale, _U.S. Exploring Expedition. Vol. VI. Ethnography
and Philology_, p. 72 (Micronesians). Gibbs, _loc. cit._ p. 190
(Indians of Western Washington and North-Western Oregon).]

[Footnote 54: See Farrer, _Military Manners and Customs_, p. 162 _sq._]

[Footnote 55: Ellis, _Polynesian Researches_, i. 318.]

[Footnote 56: See Farrer, _Militarv Manners and Customs_, p. 161.]

[Footnote 57: Fraser, _Aborigines of New South Wales_, p. 41.]

[Footnote 58: Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._
iii. 368.]

The Samoans considered it cowardly to kill a woman;[59] and even in
Fiji the "enlightened party" objected to the killing of women, urging
that it is "just as cowardly to kill a woman as a baby."[60] The
Abipones, in their wars, "generally spared the unwarlike, and carried
away innocent boys and girls unhurt."[61] An old Spanish writer tells
us of the Guanches of Gran Canaria that, "in their wars, they held it
as base and mean to molest or injure the women and children of the enemy,
considering them as weak and helpless, therefore improper objects of
their resentment";[62] and similar views prevail among the Berbers
(Shlu[h.]) of Southern Morocco, as also among the Algerian Kabyles[63]
and the Touareg.[64] Though the Masai and Wa-kikuyu "are eternally at
war to the knife with each other, there is a compact between them not
to molest the womenfolk of either party."[65] "The Masai," says Mr.
Hinde, "never interfere with women in their raids, and the women cheer
{336} loudly and encourage their relatives during the fight."[66]
Among the Latukas, though women are employed as spies and thus become
exceedingly dangerous in war, there is nevertheless a general
understanding that no woman shall be killed.[67] The Basutos maintain
that respect should be paid during war to women, children, and
travellers, as also that those who surrender should be spared and open
to ransom; and, though these rules are not invariably respected, the
public voice always disapproves of their violation.[68]

[Footnote 59: Turner, _Nineteen Years in Polynesia_, p. 304.]

[Footnote 60: Seemann, _Viti_, p. 180.]

[Footnote 61: Dobrizhoffer, _op. cit._ ii. 141.]

[Footnote 62: Abreu de Galindo, _History of the Discovery and Conquest
of the Canary Islands_, p. 66.]

[Footnote 63: Hanoteau and Letourneux, _La Kabylie_, ii. 76.]

[Footnote 64: Hourst, _Sur le Niger et au pays des Touaregs_,
p. 223 _sq._]

[Footnote 65: Thomson, _Through Masai Land_, p. 177.]

[Footnote 66: Hinde, _The Last of the Masai_, p. 6, n.*]

[Footnote 67: Baker, _Albert N'yanza_, i. 355.]

[Footnote 68: Casalis, _op. cit._ p. 223 _sq._ For regard paid to
women, old people, and children in war, see also Richardson, _Arctic
Searching Expedition_, i. 367 (Western Eskimo); Catlin, _North
American Indians_, ii. 240; Azara, _Voyages_, ii. 145 (Payaguas).]

Sometimes custom even requires that the life of the captive shall be
spared.

It is against Masai tradition to kill prisoners of war.[69] Among
the Kabyles "il faut que l'exaspération des partis soit extrême pour
qu'un blessé ou un prisonnier soit mis à mort."[70] The Touareg do not
kill their prisoners after a fight.[71] Among the Bedouins of the
Euphrates "the person of the enemy is sacred when disarmed or
dismounted; and prisoners are neither enslaved nor held to other
ransom than their mares."[72] "Captives," says Mr. Dorsey, "were not
slain by the Omahas and Ponkas. When peace was declared the captives
were sent home, if they wished to go. If not they could remain where
they were, and were treated as if they were members of the tribe."[73]
Among the Wyandots prisoners of war were frequently adopted into the
tribe. "The warrior taking the prisoner has the first right to adopt
him. If no one claims the prisoner for this purpose, he is caused to
run the gauntlet as a test of his courage. If at his trial he behaves
manfully claimants are not wanting, but if he behaves disgracefully he
is put to death."[74]

[Footnote 69: Hinde, _op. cit._ p. 64.]

[Footnote 70: Hanoteau and Letourneux, _op. cit._ 75.]

[Footnote 71: Hourst, _op. cit._ p. 207.]

[Footnote 72: Blunt, _op. cit._ ii. 239.]

[Footnote 73: Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._
iii. 332.]

[Footnote 74: Powell, _ibid._ i. 68.]

Thus we notice even among uncivilised races very obvious traces of
what is called "international law,"[75] if not as a rule, at least as
an exception. On the other hand, the {337} readiness with which war is
engaged in, not only in self-defence or out of revenge, but for the
sake of gain, indicates how little regard is paid to human life
outside the tribe. The Kandhs, for instance, maintain "that a state of
war may be lawfully presumed against all tribes and nations with whom
no express agreement to the contrary exists."[76] And if a few savage
peoples live in perpetual peace, it seems that the chief reason for
this is not a higher standard of morality, but the absence of all
inducements to war.

[Footnote 75: See also Wheeler, _The Tribe, and Intertribal Relations
in Australia_, _passim_.]

[Footnote 76: Hunter, _Annals of Rural Bengal_, iii. 75.]

When we from the lower races pass to peoples more advanced in culture,
we find that the social unit has grown larger, that the nation has
taken the place of the tribe, and that the circle within which
homicide is prohibited as a crime of the first order has been extended
accordingly. But the old distinction between injuries committed
against compatriots and harm done to foreigners remains. Even when the
subject is not touched upon in the laws referring to homicide we may,
from the general attitude of the people towards members of other
nations, infer that public opinion is not very scrupulous as to the
taking of their lives. How the Chinese looked upon the "red-haired
barbarians," the "foreign devils," is well known from recent history.
In former days, Japan's attitude towards her neighbours and the whole
world was that of an enemy and not of a friend.[77] The Vedic hymns
are full of imprecations of misfortune upon men of another race.[78]
That among the ancient Teutons the lot of a stranger was not an
enviable one is testified even by language; the German word _elender_
has acquired its present meaning from the connotation of the older
word which meant an "outlandish" man.[79] The stranger as such--unless
he belonged to a friendly, neighbouring tribe--had originally no legal
rights at all; for his protection he was dependent on individual {338}
hospitality, and hospitality was restricted by custom to three days
only.[80] According to the Swedish Westgöta-Lag, he who killed a
foreigner had to pay no compensation to the dead man's relatives, nor
was he outlawed, nor exiled.[81] The Laws of King Ine let us
understand in what light a stranger was looked upon:--"If a far-coming
man, or a stranger, journey through a wood out of the highway, and
neither shout nor blow his horn, he is to be held for a thief, either
to be slain or redeemed."[82] However, as commerce increased and the
stranger was more often seen in Teutonic lands, royal protection was
extended to him; and a consequence of this was that thenceforth he who
killed the stranger had to pay a _wergeld_, part, or the whole, of
which went to the king.[83] In Greece, in early times, the
"contemptible stranger"[84] had no legal rights, and was protected
only in case he was the guest of a citizen;[85] and even later on, at
Athens, whilst the intentional killing of a citizen was punished with
death and confiscation of the murderer's property, the intentional
killing of a non-citizen was punished only with exile.[86] The Latin
word _hostis_ was originally used to denote a foreigner;[87] and the
saying of Plautus, that a man is a wolf to a man whom he does not
know,[88] was probably an echo of an old Roman proverb. Mommsen
suggests that in ancient days the Romans did not punish the killing of
a foreigner, unless he belonged to an allied nation; but already in
the prehistoric period a change was introduced, the foreigner being
placed under the protection of the State.[89]

[Footnote 77: Griffis, _Religions of Japan_, p. 129.]

[Footnote 78: Roth, 'On the Morality of the Veda,' in _Jour. American
Oriental Society_, iii. 338.]

[Footnote 79: _Cf._ Grimm, _Deutsche Rechtsalterthümer_, p. 396;
Gummere, _Germanic Origins_, p. 288.]

[Footnote 80: Grimm, _op. cit._ p. 397 _sqq._ Brunner, _Deutsche
Rechtgeschichte_, i. 273.]

[Footnote 81: _Westgöta-Lagen I._ Af mandrapi, v. 4 p. 13.]

[Footnote 82: _Laws of Ine_, 20. _Cf._ _Laws of Wihtræd_, 28.]

[Footnote 83: Brunner, _op. cit._ i. 273 _sq._ Gummere, _op. cit._ p.
288. Pollock and Maitland, _History of English Law before the Time of
Edward I._ i. 52.]

[Footnote 84: _Iliad_, ix. 648.]

[Footnote 85: Hermann-Blümner, _Lehrsbüch der griechischen
Privatalterthümer_, p. 492. Schmidt, _Ethik der alten Griechen_, ii. 325.]

[Footnote 86: Meier and Schömann, _Der altische Process_, p. 379.]

[Footnote 87: Cicero, _De officiis_, i. 12.]

[Footnote 88: Plautus, _Asinaria_, ii. 4. 88.]

[Footnote 89: Mommsen, _Römisches Strafrecht_, p. 622 _sqq._]

How little regard is felt for the lives of strangers also appears from
the readiness with which war is waged on {339} foreign nations,
combined with the estimation in which the successful warrior is held
by his countrymen. The ancient Mexicans were never at a loss for an
excuse to pick a quarrel with their neighbours, so as to be able to
procure victims for sacrifices to their gods.[90] "No profession was
held in more esteem amongst them than the profession of arms. The
deity of war was the most revered by them, and regarded as the chief
protector of the nation."[91] The Mayas not only wanted to increase
their dominions by encroachments upon their neighbours' territory, but
undertook raids with no other object than that of obtaining captives
for sacrifice.[92] Speaking of the wars of the ancient Egyptians, M.
Amélineau observes, "Nous n'avons pas un seul mot dans la littérature
égyptienne, même dans les [oe]uvres égypto-chrétiennes, qui nous fasse
entendre le plus léger cri de réprobation pour la guerre et ses
horreurs."[93] Among the Hebrews the most cruel wars of extermination
were expressly sanctioned by their religion. That an idolatrous people
had no right to live was taken as a matter of course; but wars were
also unscrupulously waged from worldly motives, and in their moral
code there is no attempt to distinguish between just and unjust
war.[94] Among the Mohammedans it is likewise the unbeliever, not the
foreigner as such, that is regarded as the most proper object of
slaughter. Although there is no precept in the Koran which, taken with
the context, justifies unprovoked war,[95] the saying that "Paradise
is under the shadow of swords"[96] is popularly applied to all warfare
against infidels. Among the Celts[97] and Teutons a man's highest
aspiration was to acquire military glory. The Scandinavians considered
it a disgrace for a man to die {340} without having seen human blood
flow;[98] even the slaying of a tribesman they often regarded lightly
when it had been done openly and bravely. In Greece, in ancient times
at least, war was the normal relation between different states, and
peace an exception, for which a special treaty was required;[99] while
to conquer and enslave barbarians was regarded as a right given to the
Greeks by Nature. The whole statecraft of the early Republic of Rome
was no doubt based upon similar principles;[100] and in later days,
also, the war policy of the Romans was certainly not conducted with
that conscientiousness which was insisted upon by some of their writers.

[Footnote 90: Bancroft, _Native Races of the Pacific States_, ii. 420.
Clavigero, _History of Mexico_, i. 371.]

[Footnote 91: Clavigero, _op. cit._ i. 363.]

[Footnote 92: Bancroft, _op. cit._ ii. 740, 745.]

[Footnote 93: Amélineau, _L'évolution des idées morales dans l'Égypte
ancienne_, p. 344.]

[Footnote 94: _Cf._ Seldeft, _De Synedriis et Præfecturis Juridicis
veterum Ebræorum_, iii. 12, p. 1179 _sqq._; Lament, _Études sur
l'histoire de l'humanité_, i. 384 _sq._]

[Footnote 95: This was later on admitted by Lane (_Modern Egyptians_,
p. 574), who had previously maintained that the duty of waging holy
war is strongly urged in the Koran.]

[Footnote 96: Pool, _Studies in Mohammedanism_, p. 246.]

[Footnote 97: Logan, _The Scottish Gael_, i. 101. de Valroger, _Les
Celtes_, p. 186.]

[Footnote 98: _Njála_, ch. 40, vol. i. 167. Maurer, _Rekehrung des
Norwegischen Stammes_, ii. 172.]

[Footnote 99: Schmidt, _Ethik der alten Griechen_, ii. 280. Laurent,
_op. cit._ i. 46. Plato, _Leges_, i. 625. Livy, xxxi. 29: "Cum
alienigenis, cum barbaris aeternum omnibus Graecis bellum est."]

[Footnote 100: _Cf._ Lecky, _History of European Morals_, ii. 257.]

However, the foreigner is not entirely, or under all circumstances,
devoid of rights. Among the nations of archaic civilisation, as among
the lower races, hospitality is a duty, and the life of a guest is as
sacred as the life of any of the permanent members of the household.
In various cases the commencement of international hostilities is
preceded by special ceremonies, intended to justify acts which are not
considered proper in times of peace. In ancient Mexico it was usual to
send a formal challenge or declaration of war to the enemy, as it was
held discreditable to attack a people unprepared for defence;[101]
and, according to the fecial law of the Romans, no war was just unless
it was undertaken to reclaim property, or unless it was solemnly
denounced and proclaimed beforehand.[102] In some cases warfare is
condemned, or a distinction is made between just and unjust war with
reference to the purpose for which the war is waged. The Chinese
philosophers were great advocates of peace.[103] According to
Lao-Tsze, a superior man uses weapons "only on the compulsion of
necessity";[104] there is no calamity greater {341} than lightly
engaging in war,[105] and "he who has killed multitudes of men should
weep for them with the bitterest grief."[106] In the Indian poem,
Mahabharata, needless warfare is condemned; it is said that the
success which is obtained by negotiations is the best, and that the
success which is secured by battle is the worst.[107] Among the
Hebrews the sect of the Essenes went so far in their reprobation of
war that they would not manufacture any martial instruments
whatever.[108] Roman historians, even in the case of wars with
barbarians, often discuss the sufficiency or insufficiency of the
motives "with a conscientious severity a modern historian could hardly
surpass."[109] According to Cicero, a war, to be just, ought to be
necessary, the sole object of war being to enable us to live
undisturbed in peace. There are two modes of settling controversies,
he says, one by discussion, the other by a resort to force. The first
is proper to man, the second is proper to brutes, and ought never to
be adopted except where the first is unavailable.[110] Seneca regards
war as a "glorious crime," comparable to murder:--"What is forbidden
in private life is commanded by public ordinance. Actions which,
committed by stealth, would meet with capital punishment, we praise
because committed by soldiers. Men, by nature the mildest species of
the animal race, are not ashamed to find delight in mutual slaughter,
to wage wars, and to transmit them to be waged by their children, when
even dumb animals and wild beasts live at peace with one
another."[111] History attests that the Romans, in their intercourse
with other nations, did not act upon Cicero's and Seneca's lofty
theories of international morality; as Plutarch observes, the two
names "peace" and "war" are mostly used only as coins, to procure, not
what is just, but what is expedient.[112] Yet there seems to have been
a general {342} feeling in Rome that the waging of a war required some
justification. In declaring it, the Roman heralds called all the gods
to witness that the people against whom it was declared had been
unjust and neglectful of its obligations.[113]

[Footnote 101: Clavigero, _op. cit._ i. 370. Bancroft, _op. cit._
ii. 420, 421, 423.]

[Footnote 102: Cicero, _De officiis_, i. 11.]

[Footnote 103: _Cf._ Lanessan, _Morale des philosophes chinois_,
pp. 54, 107.]

[Footnote 104: _Táo Teh King_, xxxi. 2.]

[Footnote 105: _Ibid._ lxix. 2.]

[Footnote 106: _Ibid._ xxxi. 3.]

[Footnote 107: _Mahabharata_, Bhisma Parva, iii. 81 (pt. xii. _sq._
p. 6).]

[Footnote 108: Philo, _Quod liber sit quisquis virtuti studet_, p. 877.]

[Footnote 109: Lecky, _History of European Morals_, ii. 258.]

[Footnote 110: Cicero, _De officiis_, i. 11.]

[Footnote 111: Seneca, _Epistulæ_, 95.]

[Footnote 112: Plutarch, _Vita Pyrrhi_, xii. 3, p. 389.]

[Footnote 113: Livy, i. 32.]

Even in war the killing of an enemy is, under certain circumstances,
prohibited either by custom or by enlightened moral opinion. Among the
ancient Nahuas, who never accepted a ransom for a prisoner of war, the
person of an ambassador was at all events held sacred.[114] In the
'Book of Rewards and Punishments,' which embodies popular Taouism, it
is said, "Do not massacre the enemies who yield themselves, nor kill
those who offer their submission."[115] The Hebrews, whilst being
commanded to "save alive nothing that breatheth" of the cities which
the Lord had given them for an inheritance, were to deal differently
with cities which were very far off from them: to kill only the men,
and to take to themselves the women and the little ones.[116] The Laws
of Manu lay down very humane rules for a king who fights with his foes
in battle:--"Let him not strike with weapons concealed in wood, nor
with such as are barbed, poisoned, or the points of which are blazing
with fire. Let him not strike one who in flight has climbed on an
eminence, nor a eunuch, nor one who joins the palms of his hands in
supplication, nor one who flees with flying hair, nor one who sits
down, nor one who says 'I am thine'; nor one who sleeps, nor one who
has lost his coat of mail, nor one who is naked, nor one who is
disarmed, nor one who looks on without taking part in the fight, nor
one who is fighting with another foe; nor one whose weapons are
broken, nor one afflicted with sorrow, nor one who has been grievously
wounded, nor one who is in fear, nor one who has turned to flight; but
in all these cases let him remember the duty of honourable
warriors."[117] The Mahabharata contains expressions of {343} similar
chivalrous sentiments in regard to enemies. A car-warrior should fight
only with a car-warrior, a horse-man with a horse-man, a foot-soldier
with a foot-soldier. "Always being led by consideration of fitness,
willingness, bravery, and strength, one should strike another after
having challenged him. None should strike another who is confiding or
who is panic-striken. One fighting with another, one seeking refuge,
one retreating, one whose weapon is broken, and one who is not clad in
armour should never be struck. Charioteers, animals, men engaged in
carrying weapons, those who play on drums and those who blow conchs
should never be smitten."[118] Among the Greeks, in the Homeric age,
it was evidently regarded as a matter of course that, on the fall of a
city, all the men were slain, and the women and children carried off
as slaves;[119] but in historic times such a treatment of a vanquished
foe grew rarer, and seems, under ordinary circumstances, to have been
disapproved of.[120] The rulers of this land, says the messenger in
the 'Heraclidæ,' do not approve of slaying enemies who have been taken
alive in battle.[121] In Rome the customs of war underwent a similar
change. In ancient days the normal fate of a captive was death, in
later times he was generally reduced to slavery; but many thousands of
captives were condemned to the gladiatorial shows, and the vanquished
general was commonly slain in the Mamertine prison.[122] On the other
hand, nations or armies that voluntarily submitted to Rome were
habitually treated with great leniency. Cicero says:--"When we obtain
the victory we must preserve those enemies who behaved without cruelty
or inhumanity during the war; for example, our forefathers received,
even as members of their state, the Tuscans, the Aequi, the Volscians,
the Sabines, and the Hernici, but utterly destroyed Carthage and
Numantia. . . . And, while we {344} are bound to exercise
consideration toward those whom we have conquered by force, so those
should be received into our protection who throw themselves upon the
honour of our general, and lay down their arms, even though the
battering rams should have struck their walls."[123]

[Footnote 114: Bancroft, _op. cit._ ii. 426, 412.]

[Footnote 115: Douglas, _Confucianism and Taouism_, p. 261.]

[Footnote 116: _Deuteronomy_, xx. 13 _sqq._]

[Footnote 117: _Laws of Manu_, vii. 90 _sq._]

[Footnote 118: _Mahabharata_, Bhisma Parva, i. 27 _sqq._ (pt. xii.
_sq._ p. 2).]

[Footnote 119: _Iliad_, ix. 593 _sq._]

[Footnote 120: Schmidt, _Ethik der alten Griechen_, ii. 281 _sqq._]

[Footnote 121: Euripides, _Heraclidæ_, 966.]

[Footnote 122: Laurent, _op. cit._ iii. 20 _sq._ Lecky, _History of
European Morals_, ii. 257.]

[Footnote 123: Cicero, _De officiis_, i. 11.]




CHAPTER XV

HOMICIDE IN GENERAL (continued)


CHRISTIANITY introduced into Europe a higher regard for human life
than was felt anywhere in pagan society. The early Christians
condemned homicide of any kind as a heinous sin. And in this, as in
all other questions of moral concern, the distinction of nationality
or race was utterly ignored by them.

The sanctity which they attached to the life of every human being led
to a total condemnation of warfare, sharply contrasting with the
prevailing sentiment in the Roman Empire. In accordance with the
general spirit of their religion, as also with special passages in the
Bible,[1] they considered war unlawful under all circumstances. Justin
Martyr quotes the prophecy of Isaiah, that "nation shall not lift up
sword against nation, neither shall they learn war any more,"[2] and
proceeds to say that the instruction in the word of God which was
given by the twelve Apostles "had so good effect that we, who
heretofore were continually devouring each other, will not now so much
as lift up our hand against our enemies."[3] Lactantius asserts that
"to engage in war cannot be lawful for the righteous man, whose
warfare is that of righteousness itself."[4] Tertullian asks, "Can it
be lawful to {346} handle the sword, when the Lord Himself has
declared that he who uses the sword shall perish by it?"[5] And in
another passage he states that "the Lord by his disarming of Peter
disarmed every soldier from that time forward."[6] Origen calls the
Christians the children of peace, who, for the sake of Jesus, never
take up the sword against any nation; who fight for their monarch by
praying for him, but who take no part in his wars, even though he urge
them.[7] It is true that, even in early times, Christian soldiers were
not unknown; Tertullian alludes to Christians who were engaged in
military pursuits together with their heathen countrymen.[8] But the
number of Christians enrolled in the army seems not to have been very
considerable before the era of Constantine,[9] and, though they were
not cut off from the Church, their profession was looked upon as
hardly compatible with their religion. St. Basil says that soldiers,
after their term of military service has expired, are to be excluded
from the sacrament of the communion for three whole years.[10] And
according to one of the canons of the Council of Nice, those
Christians who, having abandoned the profession of arms, afterwards
returned to it, "as dogs to their vomit," were for some years to
occupy in the Church the place of penitents.[11]

[Footnote 1: _St. Matthew_, v. 9, 39, 44. _Romans_, xii. 17.
_Ephesians_, vi. 12.]

[Footnote 2: _Isaiah_, ii. 4.]

[Footnote 3: Justin Martyr, _Apologia I. pro Christianis_, 39 (Migne,
_Patrologiæ cursus_, Ser. Graeca, vi. 387 _sq._).]

[Footnote 4: Lactantius, _Divinæ institutiones_, vi. ('De vero cultu')
20 (Migne, _op. cit._ vi. 708).]

[Footnote 5: Tertullian, _De corona_, 11 (Migne, _op. cit._ ii. 92).]

[Footnote 6: Tertullian, _De idolatria_, 19 (Migne, _op. cit._ i. 691).]

[Footnote 7: Origen, _Contra Celsum_, v. 33; viii. 73 (Migne, _op.
cit._ Ser. Graeca, xi. 1231 _sq._, 1627 _sq._).]

[Footnote 8: Tertullian, _Apologeticus_, 42 (Migne, _op. cit._ i. 491).]

[Footnote 9: Le Blant, _Inscriptions chrétiennes de la Gaule_,
i. 84 _sqq._]

[Footnote 10: St. Basil, _Epistola CLXXXVIII._, _ad Amphilochium_,
can. 13 (Migne, _op. cit._ Ser. Graeca, xxxii. 681 _sq._).]

[Footnote 11: _Concilium Nicænum_, A.D. 325, can. 12 (Labbe-Mansi,
_Sacrorum Conciliorum collectio_, ii. 674).]

A divine law which prohibited all resistance to enemies could
certainly not be accepted by the State, especially at a time when the
Empire was seriously threatened by foreign invaders. Christianity
could therefore never become a State-religion unless it gave up its
attitude towards war. And it gave it up. Already in 314 a Council
condemned soldiers who, from religious motives, {347} deserted their
colours.[12] The Fathers of the fourth and fifth centuries did not
altogether disapprove of war. Chrysostom and Ambrose, though seeing
the difficulty of reconciling it with the theory of Christian life
which they found in the New Testament, perceived that the use of the
sword was necessary to preserve the State.[13] St. Augustine went much
farther. He tried to prove that the practice of war was quite
compatible with the teachings of Christ. The soldiers mentioned in the
New Testament, who were seeking for a knowledge of salvation, were not
directed by our Lord to throw aside their arms and renounce their
profession, but were advised by him to be content with their
wages.[14] St. Peter baptised Cornelius, the centurion, in the name of
Christ, without exhorting him to give up the military life,[15] and
St. Paul himself took care to have a strong guard of soldiers for his
defence.[16] And was not the history of David, the "man after God's
own heart," an evidence of those being wrong who say that "no one who
wages war can please God"?[17] When Christ declared that "all they
that take the sword shall perish with the sword,"[18] He referred to
such persons only as arm themselves to shed the blood of others
without either command or permission of any superior or lawful
authority.[19] A great deal depends on the causes for which men
undertake war, and on the authority they have for doing so. Those wars
are just which are waged with a view to obtaining redress for wrongs,
or to chastising the undue arrogance of another State. The monarch has
the power of making war when he thinks it advisable, and, even if he
be a sacrilegious {348} king, a Christian may fight under him,
provided that what is enjoined upon the soldier personally is not
contrary to the precept of God.[20] In short, though peace is our
final good, though in the City of God there is peace in eternity,[21]
war may sometimes be a necessity in this sinful world.

[Footnote 12: _Concilium Arelatense I._ A.D. 314, can. 3 (Labbe-Mansi,
_op. cit._ ii. 471). _Cf._ Le Blant, _op. cit._ i. p. lxxxii.]

[Footnote 13: Gibb, 'Christian Church and War,' in _British Quarterly
Review_, lxxiii. 83.]

[Footnote 14: St. Augustine, _Epist. CXXXVIII._, _ad Marcellinum_, 15
(Migne, _op. cit._ xxxiii. 531 _sq._).]

[Footnote 15: St. Augustine, _Epist. CLXXXIX._, _ad Bonifacium_, 4
(Migne, _op. cit._ xxxiii. 855).]

[Footnote 16: St. Augustine, _Epistola XLVII._, _ad Publicolam_, 5
(Migne, _op. cit._ xxxiii. 187).]

[Footnote 17: St. Augustine, _Epist. CLXXXIX._, _ad Bonifacium_, 4
(Migne, _op. cit._ xxxiii. 855).]

[Footnote 18: _St. Matthew_, xxvi. 52.]

[Footnote 19: St. Augustine, _Contra Faustum Manichæum_, xxii. 70
(Migne, _op. cit._ xlii, 444).]

[Footnote 20: St. Augustine, _Contra Faustum Manichæum_, xxii. 75
(Migne, _op. cit._ xlii. 448).]

[Footnote 21: St. Augustine, _De civitate Dei_, xix. 11.]

By the writings of St. Augustine the theoretical attitude of the
Church towards war was definitely settled, and later theologians only
reproduced or further elaborated his views. Yet it was not with a
perfectly safe conscience that Christianity thus sanctioned the
practice of war. There was a feeling that a soldier scarcely could
make a good Christian. In the middle of the fifth century, Leo the
Pope declared it to be contrary to the rules of the Church that
persons after the action of penance--that is, persons then considered
to be pre-eminently bound to obey the law of Christ--should revert to
the profession of arms.[22] Various Councils forbade the clergy to
engage in warfare,[23] and certain canons excluded from ordination all
who had served in an army after baptism.[24] Penance was prescribed
for those who had shed blood on the battle-field.[25] Thus {349} the
ecclesiastical canons made in William the Conqueror's reign by the
Norman prelates, and confirmed by the Pope, directed that he who was
aware that he had killed a man in a battle should do penance for one
year, and that he who had killed several should do a year's penance
for each.[26] Occasionally the Church seemed to wake up to the evils
of war in a more effective way; there are several notorious instances
of wars being forbidden by popes. But in such cases the prohibition
was only too often due to the fact that some particular war was
disadvantageous to the interests of the Church. And whilst doing
comparatively little to discourage wars which did not interfere with
her own interests, the Church did all the more to excite war against
those who were objects of her hatred.

[Footnote 22: Leo Magnus, _Epistola XC._, _ad Rusticum_, inquis. 12
(Migne, _op. cit._ liv. 1206 _sq._).]

[Footnote 23: One of the Apostolic Canons requires that any bishop,
priest, or deacon who devotes himself to military service shall be
degraded from his ecclesiastical rank (_Canones ecclesiastici qui
dicuntur Apostolorum_, 83 [74] [Bunsen, _Analecta Ante-Nicæna_, ii.
31]). The Councils of Toulouse, in 633 (ch. 45, in Labbe-Mansi, _op.
cit._ x. 630), and of Meaux, in 845 (can. 37, _ibid._ xiv. 827),
condemned to a similar punishment those of the clergy who ventured to
take up arms. Gratian says (_Decretum_, ii. 23. 8. 4) that the Church
refuses to pray for the soul of a priest who died on the battle-field.
Notwithstanding the canons of Councils and the decrees of popes,
ecclesiastics frequently participated in battles (Nicolaus I.
_Epistolæ et Decreta_, 83 [Migne, _op. cit._ cxix. 922]. Robertson,
_History of the Reign of Charles V._ i. 330, 385. Ward, _Foundation
and History of the Law of Nations_, i. 365 _sq._ Buckle, _History of
Civilisation in England_, i. 204; ii. 464. Bethune-Baker, _Influence
of Christianity on War_, p. 52. Dümmler, _Geschichte des
Ostfränkischen Reichs_, ii. 637).]

[Footnote 24: Grotius, _De jure belli et pacis_, i. 2. 10. 10.
Bingham, _Antiquities of the Christian Church_, iv. 4. 1 (_Works_,
ii. 55).]

[Footnote 25: _P[oe]nitentiale Bigotianum_, iv. i. 4 (Wasserschleben,
_Bussordnungen der abendländischen Kirche_, p. 453). _P[oe]nit.
Vigilanum_, 27 (_ibid._ p. 529). _P[oe]nit. Pseudo-Theodori_, xxi. 15
(_ibid._ p. 587 _sq._). _Cf._ _Mort de Garin le Loherain_, p. 213:
"Ainz se repent et se claime cheti; Ses pechiés plore au soir et au
matin, De ce qu'il a tans homes mors et pris."]

[Footnote 26: Wilkins, _Concilia Magnæ Britanniæ et Hiberniæ_, i. 366.]

It has been suggested that the transition from the peaceful tenets of
the primitive Church to the essentially military Christianity of the
crusades, was chiefly due to the terrors and the example of Islam.
"The spirit of Muhammedanism," says Mr. Lecky, "slowly passed into
Christianity, and transformed it into its image." Until then, "war was
rather condoned than consecrated, and, whatever might be the case with
a few isolated prelates, the Church did nothing to increase or
encourage it."[27] But this view is hardly consistent with facts.
Christianity had entered on the war-path already before it came into
contact with Muhammedanism. Wars against Arian peoples had been
represented as holy wars, for which the combatants would be rewarded
by Heaven.[28] The war which Chlodwig made upon the Visigoths was not
only undertaken with the approval of the clergy, but it was, as Mr.
Greenwood remarks, "properly their war, and Chlodwig undertook it in
the capacity of a religious champion in all things but the
disinterestedness which ought to distinguish that character." Remigius
of Reims assisted him by his countenance and advice, and the {350}
Catholic priesthood set every engine of their craft in motion to
second and encourage him.[29] In the Church itself there were germs
out of which a military spirit would naturally develop itself. The
famous dictum, "Nulla salus extra ecclesiam," was promulgated as early
as the days of Cyprian. The general view of mediæval orthodoxy was,
that those beyond the pale of the Church, heathen and heretics alike,
were unalterably doomed to hell, whereas those who would acknowledge
her authority, confess their sins, receive the sacrament of baptism,
partake of the eucharist and obey the priest, would be infallibly
saved. If war was allowed by God, could there be a more proper object
for it than the salvation of souls otherwise lost? And for those who
refuse to accept the gift of grace offered to them, could there be a
juster punishment than death? Moreover, had not the Israelites fought
great battles "for the laws and the sanctuary"?[30] Had not the Lord
Himself commissioned them to attack, subdue, and destroy his enemies?
Had He not commanded them to root out the natives of Canaan, who,
because of their abominations, had fallen under God's judgment, and to
kill man and beast in the Israelitish cities which had given
themselves to idolatry, and to burn all the spoil, with the city
itself, as a whole offering to Yahveh?[31] There was no need, then,
for the Christians to go to the Muhammedans in order to learn the art
of religious war. The Old Testament, the revelation of God, gave
better lessons in it than the Koran, and was constantly cited in
justification of any cruelty committed in the name of religion.[32]

[Footnote 27: Lecky, _History of European Morals_, ii. 251 _sq._]

[Footnote 28: Gibb, _loc. cit._ p. 86.]

[Footnote 29: Greenwood, _First Book of the History of the Germans_,
p. 518.]

[Footnote 30: _1 Maccabees_, xiii. 3. Thomas Aquinas (_Summa
theologica_, ii-ii. 188. 3) quotes this passage in support of the
doctrine, that fighting may be directed to the preservation of divine
worship.]

[Footnote 31: _Deuteronomy_, xiii. 15 _sq._]

[Footnote 32: _Cf._ Constant, _De la religion_, ii. 229 _sq._]

It was thus in perfect consistency with the general teachings of the
Church that she regarded an exploit achieved against the infidels as a
merit which might obliterate the guilt of the most atrocious crimes.
Such a {351} deed was the instrument of pardon to Henry II. for the
murder of Becket,[33] and was supposed to be the means of cure to St.
Louis in a dangerous illness. Fighting against infidels took rank with
fastings, penitential discipline, visits to shrines, and almsgivings,
as meriting the divine mercy.[34] He who fell in the battle could be
confident that his soul was admitted directly into the joys of
Paradise.[35] And this held good not only of wars against Muhammedans.
The massacres of Jews and heretics seemed no less meritorious than the
slaughter of the more remote enemies of the Gospel. Nay, even a slight
shade of difference from the liturgy of Rome became at last a
legitimate cause of war.

[Footnote 33: Lyttelton, _History of the Life of King Henry the
Second_, iii. 96.]

[Footnote 34: _Cf._ Milman, _History of Latin Christianity_, iv. 209.]

[Footnote 35: _Cf._ Laurent, _Études sur l'histoire de l'humanité_,
vii. 257.]

It is true that these views were not shared by all. At the Council of
Lyons, in 1274, the opinion was pronounced, and of course eagerly
attacked, that it was contrary to the examples of Christ and the
Apostles to uphold religion with the sword and to shed the blood of
unbelievers.[36] In the following century, Bonet maintained that,
according to Scriptures, a Saracen or any other disbeliever could not
be compelled by force to accept the Christian faith.[37] Franciscus a
Victoria declared that "diversity of religion is not a cause of just
war";[38] and a similar opinion was expressed by Soto,[39] Covarruvias
a Leyva,[40] and Suarez.[41] According to Balthazar Ayala, the most
illustrious Spanish lawyer of the sixteenth century, it does not
belong to the Church to punish infidels who {352} have never received
the Christian faith, whereas those who, having once received it,
afterwards endeavour to prevent the propagation of the Gospel, may,
like other heretics, be justly persecuted with the sword.[42] But the
majority of jurisconsults, as well as of canonists, were in favour of
the orthodox view that unbelief is a legitimate reason for going to
war.[43] And this principle was, professedly, acted upon to an extent
which made the history of Christianity for many centuries a perpetual
crusade, and transformed the Christian Church into a military power
even more formidable than Rome under Cæsar and Augustus. Very often
religious zeal was a mere pretext for wars which in reality were
caused by avarice or desire for power. The aim of the Church was to be
the master of the earth rather than the servant of heaven. She
preached crusades not only against infidels and heretics, but against
any disobedient prince who opposed her boundless pretensions. And she
encouraged war when rich spoils were to be expected from the victor,
as a thankoffering to God for the victory He had granted, or as an
atonement for the excesses which had been committed.

[Footnote 36: Bethune-Baker, _op. cit._ p. 73.]

[Footnote 37: Bonet, _L'arbre des batailles_, iv. 2, p. 86: "Selon la
sainte Escripture nous ne pouvons et si ne devons contredire ne
efforcer ung mescreant à recepvoir ne le saint bapteme ne la sainte
foy ainsi les devons laisser en leur franche volonté que Dieu leur a
donnée."]

[Footnote 38: Franciscus a Victoria, _Relectiones Theologicæ_, vi. 10,
p. 231: "Caussa iusti belli non est diuersitas religionis." Yet
infidels may be constrained to allow the Gospel to be preached
(_ibid._ v. 3. 12, p. 214 _sq._).]

[Footnote 39: Soto, _De justititia et jure_, v. 3. 5, fol. 154.]

[Footnote 40: Covariuvias a Leyva, _Regulæ_, _Pecatum_, ii. 10. 2
(_Opera omnia_, i. 496): "Infidelitas non priuat infideles dominio,
quod habent iure humano, vel habuerunt ante legem Euangelicam in
prouinciis et regnis, quae obtinent."]

[Footnote 41: Suarez, cited by Nys, _Droit de la guerre et les
précurseurs de Grotius_, p. 98.]

[Footnote 42: Ayala, _De iure et officiis bellicis et disciplina
militari_, i. 2. 29 _sq._]

[Footnote 43: Nys, _op. cit._ p. 89. _Idem_, in his Introduction to
Bonet's _L'arbre des batailles_, p. xxiv. According to Conradus Brunus
(_De legationibus_, iii. 8, p. 115), for instance, any war waged by
Christians against the enemies of the Christian faith is just, as
being undertaken for the defence of religion and the glory of God in
order to recover the possession of dominions unjustly held by infidels.]

Out of this union between war and Christianity there was born that
curious bastard, Chivalry. The secular germ of it existed already in
the German forests. According to Tacitus, the young German who aspired
to be a warrior was brought into the midst of the assembly of the
chiefs, where his father, or some other relative, solemnly equipped
him for his future vocation with shield and javelin.[44] Assuming arms
was thus made a social distinction, which subsequently derived its
name {353} from one of its most essential characteristics, the riding
a war-horse. But Chivalry became something quite different from what
the word indicates. The Church knew how to lay hold of knighthood for
her own purposes. The investiture, which was originally of a purely
civil nature, became, even before the time of the crusades, as it
were, a sacrament.[45] The priest delivered the sword into the hand of
the person who was to be made a knight, with the following words,
"Serve Christi, sis miles in nomine Patris, Filii, et Spiritus Sancti,
Amen."[46] The sword was said to be made in semblance of the cross so
as to signify "how our Lord God vanquished in the cross the death of
human lying";[47] and the word "Jesus" was sometimes engraven on its
hilt.[48] God Himself had chosen the knight to defeat with arms the
miscreants who wished to destroy his Holy Church, in the same way as
He had chosen the clergy to maintain the Catholic faith with Scripture
and reasons.[49] The knight was to the body politic what the arms are
to the human body: the Church was the head, Chivalry the arms, the
citizens, merchants, and labourers the inferior members; and the arms
were placed in the middle to render them equally capable of defending
the inferior members and the head.[50] "The greatest amity that should
be in this world," says the author of the 'Ordre of Chyualry,' "ought
to be between the knights and clerks."[51] The several gradations of
knighthood were regarded as parallel to those of the Church.[52] And
after the conquest of the Holy Land the union between the profession
of arms and the religion of Christ became still more intimate by the
institution of the two military orders of monks, the Knights Templars
and Knights of St. John of Jerusalem.

[Footnote 44: Tactitus, _Germania_, 13. According to Honoré de Sainte
Marie (_Dissertations historiques et critiques sur la Chevalerie_, p.
30 _sqq._), Chivalry is of Roman, according to some other writers, of
Arabic origin. M. Gautier (_La Chevalerie_, pp. 14, 16) repudiates
these theories, and regards Chivalry as "un usage germain idéalisé par
l'Église." See also Rambaud, _Histoire de la civilisation française_,
i. 178 _sq._]

[Footnote 45: Scott, 'Essay on Chivalry,' in _Miscellaneous Prose
Works_, vi. 16. Mills, _History of Chivalry_, i. 10 _sq._ For a
description of the various religious ceremonies accompanying the
investiture, see _The Book of the Ordre of Chyualry or Knyghthode_,
fol. 27 b _sqq._ _Cf._ also Favyn, _Theater of Honour and
Knight-Hood_, i. 52.]

[Footnote 46: Favyn, _op. cit._ i. 52.]

[Footnote 47: _Ordre of Chyualry_, fol. 31 a _sq._]

[Footnote 48: Mills, _op. cit._ i. 71.]

[Footnote 49: _Ordre of Chyualry_, fol. 11 b.]

[Footnote 50: _Le Jouuencel_, fol. 94 _sqq._]

[Footnote 51: _Ordre of Chyualry_, fol. 12 a.]

[Footnote 52: Scott, _loc. cit._ p. 15.]

{354} The duties which a knight took on himself by oath were very
extensive, but not very well defined. He should defend the holy
Catholic faith, he should defend justice, he should defend women,
widows, and orphans, and all those of either sex that were powerless,
ill at ease, and groaning under oppression, and injustice.[53] In the
name of religion and justice he could thus practically wage war almost
at will. Though much real oppression was undoubtedly avenged by these
soldiers of the Church, the knight seems as a rule to have cared
little for the cause or necessity of his doing battle. "La guerre est
ma patrie, Mon harnois ma maison: Et en toute saison Combatre c'est ma
vie," was a saying much in use in the sixteenth century.[54] The
general impression which Froissart gives us in his history is, that
the age in which he lived was completely given over to fighting, and
cared about nothing else whatever.[55] The French knights never spoke
of war but as a feast, a game, a pastime. "Let them play their game,"
they said of the cross-bow men, who were showering down arrows on
them; and "to play a great game," _jouer gros jeu_, was their
description of a battle.[56] Previous to the institution of Chivalry
there certainly existed much fighting in Christian countries, but
knighthood rendered war "a fashionable accomplishment."[57] And so
all-absorbing became the passion for it that, as real injuries were
not likely to occur every day, artificial grievances were created, and
tilts and tournaments were invented in order to keep in action the
sons of war when they had no other employments for their courage. Even
in these images of war--which were by no means so harmless as they
have sometimes been represented to be[58]--the intimate connection
{355} between Chivalry and religion displays itself in various ways.
Before the tournament began, the coats of arms, helmets, and other
objects were carried into a monastery, and after the victory was
gained the arms and the horses which had been used in the fight were
offered up at the church.[59] The proclamations at the tournaments
were generally in the name of God and the Virgin Mary. Before battle
the knights confessed, and heard mass; and, when they entered the
lists, they held a sort of image with which they made the sign of the
cross.[60] Moreover, "as the feasts of the tournaments were
accompanied by these acts of devotion, so the feasts of the Church
were sometimes adorned with the images of the tournaments."[61] It is
true that the Church now and then made attempts to stop these
performances.[62] But then she did so avowedly because they prevented
many knights from joining the holy wars, or because they swallowed up
treasures which might otherwise with advantage have been poured into
the Holy Land.[63]

[Footnote 53: _Ordre of Chyualry_, foll. 11 b, 17 a. Sainte-Palaye,
_Mémoires sur l'ancienne Chevalerie_, i. 75, 129.]

[Footnote 54: De la Nouë, _Discours politiques et militaires_, p. 215.]

[Footnote 55: See Sir James Stephen's essay on 'Froissart's
Chronicles,' in his _Horæ Sabbaticæ_, i. 22 _sqq._]

[Footnote 56: Sainte-Palaye, _op. cit._ ii. 61.]

[Footnote 57: Millingen, _History of Duelling_, i. 70.]

[Footnote 58: Sainte-Palaye, _op. cit._ i. 179; ii. 75. Du Cange,
'Dissertations sur l'histoire de S. Louys,' in Petitot, _Collection
des Mémoires relatifs à l'histoire de France_, iii. 122 _sq._ Honoré
de Sainte Marie, _op. cit._ p. 186.]

[Footnote 59: Sainte-Palaye, _op. cit._ i. 151.]

[Footnote 60: _Ibid._ ii. 57.]

[Footnote 61: _Ibid._ ii. 57 _sq._]

[Footnote 62: Du Cange, _loc. cit._ p. 124 _sqq._ Honoré de Sainte
Marie, _op. cit._ p. 186. Sainte-Palaye, _op. cit._ ii. 75.]

[Footnote 63: Du Cange, _loc. cit._ p. 125 _sq._]

Closely connected with the feudal system was the practice of private
war. Though tribunals had been instituted, and even long after the
kings' courts had become well-organised and powerful institutions, a
nobleman had a right to wage war upon another nobleman from whom he
had suffered some gross injury.[64] On such occasions not only the
relatives, but the vassals, of the injured man were bound to help him
in his quarrel, and the same obligation existed in the case of the
aggressor.[65] Only greater crimes were regarded as legitimate causes
of private war,[66] but this rule was not at all strictly
observed.[67] As {356} a matter of fact, the barons fled to arms upon
every quarrel; he who could raise a small force at once made war upon
him who had anything to lose. The nations of Europe were subdivided
into innumerable subordinate states, which were almost independent,
and declared war and made treaties with all the vigour and all the
ceremonies of powerful monarchs. Contemporary historians describe the
excesses committed in prosecution of these intestine quarrels in such
terms as excite astonishment and horror; and great parts of Europe
were in consequence reduced to the condition of a desert, which it
ceased to be worth while to cultivate.[68]

[Footnote 64: The right of private war generally supposed nobility of
birth and equality of rank in both the contending parties (Beaumanoir,
_Coutumes du Beauvoisis_, lix. 5 _sq._ vol. ii. 355 _sqq._; Robertson,
_History of the Reign of Charles V._ i. 329). But it was also granted
to the French _communes_, and to the free towns in Germany, Italy, and
Spain (Du Boys, _Histoire du droit criminel des peuples modernes_,
ii. 348).]

[Footnote 65: Du Cange, _loc. cit._ pp. 450, 458.]

[Footnote 66: _Ibid._ p. 445 _sq._ Arnold, _Deutsche Urzeit_, p. 341.
von Wächter, _Beiträge zur deutschen Geschichte_, p. 46.]

[Footnote 67: We read of a nobleman who declared war against the city
of Frankfort, because a lady residing there had promised to dance with
his cousin, but danced with another; and the city was obliged to
satisfy the wounded honour of the gentleman (von Wächter, _op. cit._
p. 57).]

[Footnote 68: Robertson, _op. cit._ i. 332.]

The Church made some feeble attempts to put an end to this state of
things. Thus, about the year 990, ordinances were directed against the
practice of private war by several bishops in the south of France, who
agreed to exclude him who violated their ordinances from all Christian
privileges during his life, and to deny him Christian burial after his
death.[69] A little later, men engaged in warfare were exhorted, by
sacred relics and by the bodies of saints, to lay down their arms and
to swear that they would never again disturb the public peace by their
private hostilities.[70] But it is hardly likely that such directions
had much effect as long as the bishops and abbots themselves were
allowed to wage private war by means of their vidames, and exercised
this right scarcely less frequently than the barons.[71] Nor does it
seem that {357} the Church brought about any considerable change for
the better by establishing the Truce of God, involving obligatory
respite from hostilities during the great festivals of the Church, as
also from the evening of Wednesday in each week to the morning of
Monday in the week ensuing.[72] We are assured by good authorities
that the Truce was generally disregarded, though the violator was
threatened with the penalty of excommunication.[73] Most barons could
probably say with Bertram de Born:--"La paix ne me convient pas; la
guerre seule me plaît. Je n'ai égard ni aux lundis, ni aux mardis. Les
semaines, les mois, les années, tout m'est égal. En tout temps, je
veux perdre quiconque me nuit."[74] The ordinance enjoining the
_treuga Dei_ was transgressed even by the popes.[75] It was too
unpractical a direction to be obeyed, and was soon given up even in
theory by the authorities of the Church. Thomas Aquinas says that, as
physicians may lawfully apply remedies to men on feast-days, so just
wars may be lawfully prosecuted on such days for the defence of the
commonwealth of the faithful, if necessity so requires; "for it would
be tempting God for a man to want to keep his hands from war under
stress of such necessity."[76] And in support of this opinion he
quotes the first Book of the Maccabees, where it is said, "Whosoever
shall come to make battle with us on the sabbath day, we will fight
against him."[77]

[Footnote 69: 'Charta de Treuga et Pace per Aniciensem Praesulem
Widonem in Congregatione quamplurium Episcoporum, Principium, et
Nobilium hujus Terrae sancita,' in Dumont, _Corps universel
diplomatique du droit des gens_, i. 41.]

[Footnote 70: Raoul Glaber, _Histori sui temporis_, iv. 5 (Bouquet,
_Rerum Gallicarum et Francicarum Scriptores_, x. 49). Robertson, _op.
cit._ i. 335.]

[Footnote 71: Brussel, _Nouvel examen de l'usage général des fiefs en
France_, i. 144. How much the prelates were infected by the general
spirit of the age, appears from a characteristic story of an
archbishop of Cologne who gave to one of his vassals a castle situated
on a sterile rock. When the vassal objected that he could not subsist
on such a soil, the archbishop answered, "Why do you complain? Four
roads unite under the walls of your castle" (Du Boys, _Histoire du
droit criminel de l'Espagne_, p. 504).]

[Footnote 72: Raoul Glaber, _op. cit._ v. 1 (_loc. cit._ p. 59). Du
Cange, _Glossarium ad scriptores mediæ et infimæ Latinitatis_, vi.
1267 _sq._ Henault, _Nouvel abrégé chronologique de l'histoire de
France_, p. 106.]

[Footnote 73: Du Cange, _Glossarium_, vi. 1272. Nys, _Droit de la
guerre et les précurseurs de Grotius_, p. 114.]

[Footnote 74: Villemain, _Cours de littérature française_,
_Littérature du Moyen Age_, i. 122 _sq._]

[Footnote 75: Belli, _De re militari_, quoted by Nys, _op. cit._ p. 115.]

[Footnote 76: Thomas Aquinas, _op. cit._ ii.-ii. 40. 4.]

[Footnote 77: _Maccabees_, ii. 41.]

It seems that the main cause of the abolition of private war was not
any measure taken by the Church, but the increase of the authority of
emperors or kings. In France the right of waging private war was
moderated by Louis IX., checked by Philip IV., suppressed by {358}
Charles VI.[78] In England, after the Norman Conquest, private wars
seem to have occurred more rarely than on the Continent, probably
owing to the strength of the royal authority, which made the execution
of justice more vigorous and the jurisdiction of the King's court more
extensive than was the case in most other countries.[79] In Scotland
the practice of private war received its final blow only late in the
eighteenth century, when the clans were reduced to order after the
rebellion of 1745.[80] Whilst, then, it is impossible to ascribe to
the Church any considerable part in the movement which ultimately led
to the entire abolition of private war, we have, on the other hand, to
take into account the encouragement which the Church gave to the
warlike spirit of the time by the establishment of Chivalry[81] and by
sanctioning war as a divine institution. War came to be looked upon as
a judgment of God and the victory as a sign of his special favour.
Before a battle, the service of mass was usually performed by both
armies in the presence of each other, and no warrior would fight
without secretly breathing a prayer.[82] Pope Adrian IV. says that a
war commenced under the auspices of religion cannot but be
fortunate;[83] and it was commonly believed that God took no less
interest in the battle than did the fighting warriors. Bonet, who
wrote in the fourteenth century, puts to himself the question, why
there are so many wars in the world, and gives the answer, "que toutes
sont pour le pechié du siecle dont nostre seigneur Dieu pour le pugnir
permet les guerres, car ainsi le maintient l'escripture."[84]

[Footnote 78: Robertson, _op. cit._ i. 55, 56, 338 _sqq._ Hallam,
_View of the State of Europe during the Middle Ages_, i. 207. Brussel,
_op. cit._ i. 142.]

[Footnote 79: _Ibid._ i. 343 _sq._ Prof. Freeman (_Comparative
Politics_, p. 328 _sq._) mentions as the last instance of private war
in England one from the time of Edward IV.]

[Footnote 80: Lawrence, _Essays on some Disputed Questions in Modern
International Law_, p. 254 _sq._]

[Footnote 81: I do not understand how M. Gautier can say (_op. cit._
p. 6) that Chivalry was the most beautiful of those means by which the
Church endeavoured to check war.]

[Footnote 82: Mills, _History of Chivalry_, i. 147.]

[Footnote 83: Laurent, _op. cit._ vii. 245.]

[Footnote 84: Bonet, _op. cit._ iv. 54, p. 150.]

Similar opinions have retained their place in the orthodox creeds both
of the Catholic and Protestant {359} Churches up to the present day.
The attitude adopted by the great Christian congregations towards war
has been, and is still, to a considerable degree, that of sympathetic
approval. The Catechism of the Council of Trent brings home that there
are on record instances of slaughter executed by the special command
of God Himself, as when the sons of Levi, who put to death so many
thousands in one day, after the slaughter were thus addressed by
Moses, "Ye have consecrated your hands this day to the Lord."[85] Even
quite modern Catholic writers refer to the canonists who held that a
State might lawfully make war upon a heretic people which was
spreading heresy, and upon a pagan people which prevented the
preaching of the Gospel.[86] Again, when the Protestant Churches
became State-Churches, their ministers, considering themselves as in
the service of the State, were ready to champion whatever war the
Government pleased to undertake. As Mr. Gibb observes, the Protestant
minister was as ready with his Thanksgiving Sermon for the victories
of a profligate war, as the Catholic priest was with his _Te Deum_;
"indeed, the latter was probably the more independent of the two,
because of his allegiance to Rome."[87] The new Confessions of Faith
explicitly claimed for the State the right of waging war, and the
Anabaptists were condemned because they considered war unlawful for a
Christian.[88] Even the necessity of a just cause as a reason for
taking part in warfare, which was reasserted at the time of the
Reformation, was subsequently allowed to drop out of sight. Mr. Farrer
calls attention to the fact that in the 37th article of the English
Church, which is to the effect that a Christian at the command of the
magistrate may wear weapons and serve in wars, the word _justa_ in the
Latin form preceding the word _bella_ has been omitted altogether.[89]

[Footnote 85: _Catechism of the Council of Trent_, iii. 6. 5.]

[Footnote 86: Adds and Arnold, _Catholic Dictionary_, p. 944.]

[Footnote 87: Gibb, _loc. cit._ p. 90.]

[Footnote 88: _Augsburg Confession_, i. 16. _Second Helvetic
Confession_, xxx. 4.]

[Footnote 89: Farrer, _Military Manners and Customs_, p. 208.]

{360} Nor did the old opinion that war is a providential institution
and a judgment of God die with the Middle Ages. Lord Bacon looks upon
wars as "the highest trials of right; when princes and states that
acknowledge no superior upon earth shall put themselves upon the
justice of God, for the deciding of their controversies by such
success as it shall please Him to give on either side."[90] Réal de
Curban says that a war is seldom successful unless it be just, hence
the victor may presume that God is on his side.[91] According to
Jeremy Taylor, "kings are in the place of God, who strikes whole
nations, and towns, and villages; and war is the rod of God in the
hands of princes."[92] And it is not only looked upon as an instrument
of divine justice, but it is also said, generally, "to work out the
noble purposes of God."[93] Its tendency, as a theological writer
assures us, is "to rectify and exalt the popular conception of God,"
there being nothing among men "like the smell of gunpowder for making
a nation perceive the fragrance of divinity in truth."[94] By war the
different countries "have been opened up to the advance of true
religion."[95] "No people ever did, or ever could, feel the power of
Christian principle growing up like an inspiration through the
national manhood, until the worth of it had been thundered on the
battle-field."[96] War is, "when God sends it, a means of grace and of
national renovation"; it is "a solemn duty in which usually only the
best Christians and most trustworthy men should be commissioned to
hold the sword."[97] According to M. Proudhon, it is the most sublime
phenomenon of our moral life,[98] a divine revelation more
authoritative than the Gospel itself.[99] The warlike people is the
religious people;[100] war is the sign of {361} human grandeur, peace
a thing for beavers and sheep. "Philanthrope, vous parlez d'abolir la
guerre; prenez garde de dégrader le genre humain."[101]

[Footnote 90: Bacon, _Letters and Life_, i. (_Works_, viii.), 146.]

[Footnote 91: Réal de Curban, _La science du gouvernement_, v. 394 _sq._]

[Footnote 92: Taylor, _Whole Works_, xii. 164.]

[Footnote 93: 'The Sword and Christianity,' in _Boston Review devoted
to Theology and Literature_, iii. 261.]

[Footnote 94: _Ibid._ iii. 259, 257.]

[Footnote 95: Holland, _Time of War_, p. 14.]

[Footnote 96: _Boston Review_, iii. 257.]

[Footnote 97: 'Christianity and War,' in _Christian Review_, xxvi. 604.]

[Footnote 98: Proudhon, _La guerre et la paix_, ii. 420.]

[Footnote 99: _Ibid._i.62; ii. 435.]

[Footnote 100: _Ibid._ i. 45.]

[Footnote 101: _Ibid._ i. 43.]

In order to prove the consistency of war with Christianity appeals are
still, as in former days, made to the Bible; to the divinely-sanctioned
example of the ancient Israelites, to the fact that Jesus never
prohibited those around Him from bearing arms, to the instances of the
centurions mentioned in the Gospel, to St. Paul's predilection for
taking his spiritual metaphors from the profession of the soldier, and
so on.[102] According to Canon Mozley, the Christian recognition of
the right of war was contained in Christianity's original recognition
of nations.[103] "By a fortunate necessity," a universal empire is
impossible.[104] Each nation is a centre by itself, and when questions
of right and justice arise between these independent centres, they
cannot be decided except by mutual agreement or force. The aim of the
nation going to war is exactly the same as that of the individual in
entering a court, and the Church, which has no authority to decide
which is the right side, cannot but stand neutral and contemplate war
forensically, as a mode of settling national questions, which is
justified by the want of any other mode.[105] A natural justice, Canon
Mozley adds, is inherent not only in wars of self-defence; there is an
instinctive reaching in nations and masses of people after alteration
and readjustment, which has justice in it, and which arises from real
needs. The arrangement does not suit as it stands, there is want of
adaptation, there is confinement and pressure; there are people kept
away from each other that are made to be together, and parts separated
that were made to join. All this uneasiness in States naturally leads
to war. Moreover, there are wars of progress which, so far as they are
really necessary for the due advantage of mankind and {362} growth of
society, are approved of by Christianity, though they do not strictly
belong to the head of wars undertaken in self-defence.[106] A doctrine
which thus, in the name of religion, allows the waging of wars for
rectifying the political distribution of nationalities and races, and
forwarding the so-called progress of the world, naturally lends itself
to the justification of almost any war entered upon by a Christian
State.[107] As a matter of fact, it would be impossible to find a
single instance of a war waged by a Protestant country, from any
motive, to which the bulk of its clergy have not given their sanction
and support. The opposition against war has generally come from other
quarters.

[Footnote 102: See _e.g._, Browne, _Exposition of the Thirty-Nine
Articles_, p. 827 _sq._; _Christian Review_, xxvi. 603 _sq._;
_Eclectic Magazine_, xiii. 372.]

[Footnote 103: Mozley, 'On War,' in _Sermons preached before the
University of Oxford_, p. 119.]

[Footnote 104: _Ibid._ p. 112.]

[Footnote 105: _Ibid._ p. 100 _sqq._]

[Footnote 106: _Ibid._ 104 _sq._]

[Footnote 107: On the principle of progress, Canon Mozley himself
justifies (_ibid._ p. 110 _sq._) not only the wars undertaken against
two Eastern empires which have shut themselves up and excluded
themselves from the society of mankind, but "two of the three great
European wars of the last dozen years." This was said in 1871.]

There have been, and still are, Christian sects which, on religious
grounds, condemn war of any kind. In the fourteenth century the
Lollards taught that homicide in war is expressly contrary to the New
Testament; they were persecuted partly on that account.[108] Of the
same opinion were the Anabaptists of the sixteenth century; and they
could claim on their side the words of men like Colet and Erasmus.
From the pulpit of St. Paul's Colet thundered that "an unjust peace is
better than the justest war," and that, "when men out of hatred and
ambition fight with and destroy one another, they fight under the
banner, not of Christ, but of the Devil."[109] According to Erasmus
"nothing is more impious, more calamitous, more widely pernicious,
more inveterate, more base, or in sum more unworthy of a man, not to
say of a Christian," than war. It is worse than brutal; to man no wild
beast is more destructive than his fellow-man. When brutes fight, they
fight with weapons which nature has given them, whereas we arm
ourselves for mutual slaughter with weapons which nature never thought
of. Neither do beasts break out {363} in hostile rage for trifling
causes, but either when hunger drives them to madness, or when they
find themselves attacked, or when they are alarmed for the safety of
their young. But we, on frivolous pretences, what tragedies do we act
on the theatre of war! Under colour of some obsolete and disputable
claim to territory; in a childish passion for a mistress; for causes
even more ridiculous than these, we kindle the flame of war.
Transactions truly hellish, are called holy wars. Bishops and grave
divines, decrepit as they are in person, fight from the pulpit the
battles of the princes, promising remission of sins to all who will
take part in the war of the prince, and exclaiming to the latter that
God will fight for him, if he only keeps his mind favourable to the
cause of religion. And yet, how could it ever enter into our hearts,
that a Christian should imbrue his hands in the blood of a Christian!
What is war but murder and theft committed by great numbers on great
numbers! Does not the Gospel declare, in decisive words, that we must
not revile again those who revile us, that we should do good to those
who use us ill, that we should give up the whole of our possessions to
those who take a part, that we should pray for those who design to
take away our lives? The world has so many learned bishops, so many
grey-headed grandees, so many councils and senates, why is not
recourse had to their authority, and the childish quarrels of princes
settled by their wise and decisive arbitration? "The man who engages
in war by choice, that man, whoever he is, is a wicked man; he sins
against nature, against God, against man, and is guilty of the most
aggravated and complicated impiety."[110] These were the main arguments
of reason, humanity, and religion, which Erasmus adduced against war.
They could not leave the reformers entirely unaffected. Sir Thomas More
charged Luther himself and his disciples with carrying the doctrines of
peace to the extreme limits {364} of non-resistance.[111] But, as we
have noticed, these peaceful tendencies only formed a passing phase in
the history of Reformation, and were left to the care of sectarians.

[Footnote 108: Perry, _History of the English Church_, First Period,
pp. 455, 467.]

[Footnote 109: Green, _History of the English People_, ii. 93.]

[Footnote 110: Erasmus, _Adagia_, iv. 1, col. 893 _sqq._]

[Footnote 111: Farrer, _Military Manners and Customs_, p. 185.]

Among these the Quakers are the most important. By virtue of various
passages in the Old and the New Testament,[112] they contend that all
warfare, whatever be its peculiar features, circumstances, or
pretexts, is wholly at variance with the Christian religion. It is
always the duty of Christians to obey their Master's high and holy
law--to suffer wrong, to return good for evil, to love their enemies.
War is also inconsistent with the Christian principle that human life
is sacred, and that death is followed by infinite consequences. Since
man is destined for eternity, the future welfare of a single
individual is of greater importance than the merely temporal
prosperity of a whole nation. When cutting short the days of their
neighbour and transmitting him, prepared or unprepared, to the awful
realities of an everlasting state, Christians take upon themselves a
most unwarrantable responsibility, unless such an action is expressly
sanctioned by their divine Master, as was the case among the
Israelites. In the New Testament there is no such sanction, hence it
must be concluded that, under the Christian dispensation, it is
utterly unlawful for one man to kill another, under whatever
circumstances of expediency or provocation the deed may be committed.
And a Christian who fights by the command of his prince, and in behalf
of his country, not only commits sin in his own person, but aids and
abets the national transgression.[113]

[Footnote 112: _Isaiah_, ch. ii. _sqq._ _Micah_, iv. 1 _sqq._ _St.
Matthew_, v. 38 _sqq._; xxvi. 52. _St. Luke_, vi. 27 _sqq._ _St.
John_, xviii. 36. _Romans_, xii. 19 _sqq._ _1 Peter_, iii. 9.]

[Footnote 113: Gurney, _Views & Practices of the Society of Friends_,
p. 375 _sqq._]

It must be added that views similar to these are also found
independently of any particular form of sectarianism. According to Dr.
Wayland, all wars, defensive as well as offensive, are contrary to the
revealed will of God, aggression from a foreign nation calling not for
retaliation and {365} injury, but rather for special kindness and
good-will.[114] Theodore Parker, the Congregational minister, looks
upon war as a sin, a corrupter of public morals, a practical denial of
Christianity, a violation of God's eternal love.[115] W. Stokes, the
Baptist, observes that Christianity cannot sanction war, whether
offensive or defensive, because war is an "immeasurable evil, by
hurling unnumbered myriads of our fellow-men to a premature judgment
and endless despair."[116] Moreover, those who compare the state of
opinion during the last years with that of former periods, cannot fail
to observe a marked progress of a sentiment antagonistic to war in the
various sections of the Christian Church.[117] Yet, speaking
generally, the orthodox are still of the same opinion as Sir James
Turner, who declared that "those who condemn the profession or art of
soldiery, smell rank of Anabaptism and Quakery";[118] and war is in
our days, as it was in those of Erasmus,[119] so much sanctioned by
authority and custom, that it is deemed impious to bear testimony
against it. The duties which compulsory military service imposes upon
the male population of most Christian countries presuppose that a
Christian should have no scruples about taking part in any war waged
by the State, and are recognised as binding by the clergy of those
countries. With reference to the Church of England, Dr. Thomas Arnold
asks, "Did it become a Christian Church to make no other official
declaration of its sentiments concerning war, than by saying that
Christian men might lawfully engage in it?"[120]

[Footnote 114: Wayland, _Elements of Moral Science_, pp. 375, 379.]

[Footnote 115: Parker, _Sermon of War_, p. 23.]

[Footnote 116: Stokes, _All War inconsistent with the Christian
Religion_, p. 41.]

[Footnote 117: _Cf._ Gibb, _loc. cit._ p. 81.]

[Footnote 118: Turner, _Pallas Armata_, p. 369.]

[Footnote 119: Erasmus, _op. cit._ iv. 1. 1. col. 894.]

[Footnote 120: Arnold, _On the Church_, p. 136.]

The protest against war which exercised perhaps the widest influence
on public opinion came from a school of moralists whose tendencies
were not only anti-orthodox, but distinctly hostile to the most
essential dogmas of Christian theology. Bayle, in his Dictionary,
calls Erasmus' essay {366} against war one of the most beautiful
dissertations ever written.[121] He observes that the more we consider
the inevitable consequences of war, the more we feel disposed to
detest those who are the causes of it.[122] Its usual fruits may,
indeed, "make those tremble who undertake or advise it, to prevent
evils which, perhaps, may never happen and which, at the worst, would
often be much less than those which necessarily follow a
rupture."[123] To Voltaire war is an "infernal enterprise," the
strangest feature of which is that "every chief of the ruffians has
his colours consecrated, and solemnly prays to God before he goes to
destroy his neighbour."[124] He asks what the Church has done to
suppress this crime. Bourdaloue preached against impurity, but what
sermon did he ever direct against the murder, rapine, brigandage, and
universal rage, which desolate the world? "Miserable physicians of
souls, you declaim for five quarters of an hour against the mere
pricks of a pin, and say no word on the curse which tears us into a
thousand pieces."[125] Voltaire admits that under certain
circumstances war is an inevitable curse, but rebukes Montesquieu for
saying that natural defence sometimes involves the necessity of
attack, when a nation perceives that a longer peace would place
another nation in a position to destroy it.[126] Such a war, he
observes, is as illegitimate as possible:--" It is to go and kill your
neighbour for fear that your neighbour, who does not attack you,
should be in a condition to attack you; that is to say, you must run
the risk of ruining your country, in the hope of ruining without
reason some other country; this is, to be sure, neither fair nor
useful."[127] The chief causes which induce men to massacre in all
loyalty thousands of their brothers and to expose their own people to
the most terrible misery, are the ambitions and {367} jealousies of
princes and their ministers.[128] Similar views are expressed in the
great Encyclopédie:--"La guerre est le plus terrible des fléaux qui
détruisent l'espèce humaine: elle n'épargne pas même les vainqueurs;
la plus heureuse est funeste. . . . Ce ne sont plus aujourd'hui les
peuples qui déclarent la guerre, c'est la cupidité des rois qui leur
fait prendre les armes; c'est l'indigence qui les met aux mains de
leurs sujets."[129]

[Footnote 121: Bayle, _Dictionnaire historique et critique_, vi. 239,
art. Erasme.]

[Footnote 122: _Ibid._ ii. 463, art. Artaxata.]

[Footnote 123: _Ibid._ i. 472, art. Alting (Henri).]

[Footnote 124: Voltaire, _Dictionnaire philosophique_, art. Guerre
(_[OE]uvres complètes_, xl. 562).]

[Footnote 125: _Ibid._ p. 564.]

[Footnote 126: Montesquieu, _De l'esprit des lois_, x. 2 (_[OE]uvres
complètes_, p. 256).]

[Footnote 127: Voltaire, _loc. cit._ p. 565.]

[Footnote 128: _Ibid._ pp. 466, 564. For Voltaire's condemnation of
war, see Morley, _Voltaire_, p. 311 _sq._ I have availed myself of
Lord Morley's translation of some of the passages quoted.]

[Footnote 129: _Encyclopédie méthodique_, Art militaire, ii. 618 _sq._]

However vehemently Voltaire and the Encyclopedists condemned war, they
did not dream of a time when all wars would cease. Other writers were
more optimistic. Already in 1713 Abbé Saint-Pierre--whose abbotship
involved only a nominal connection with the Church--had published a
project of perpetual peace, which was based on the idea of a general
confederation of European nations.[130] This project was much laughed
at; Voltaire himself calls its author "un homme moitié philosophe,
moitié fou." But once called into being, the idea of a perpetual peace
and of a European confederation did not die. It was successively
conceived by Rousseau,[131] Bentham,[132] and Kant.[133] But on the
other hand it met with a formidable enemy in the awakening spirit of
nationalism.

[Footnote 130: Saint-Pierre, _Projet de Traité pour rendre la paix
perpétuelle entre les souverains Chrétiens_.]

[Footnote 131: Rousseau, _Extrait du Projet de paix perpétuelle, de M.
l'Abbé de Saint-Pierre_ (_[OE]uvres complètes_, i. 606 _sqq._).]

[Footnote 132: Bentham, _A Plan for an universal and perpetual Peace_
(_Works_, ii. 546 _sqq._).]

[Footnote 133: Kant, _Zum ewigen Frieden._]

The Napoleonic oppression called forth resistance. Philosophers and
poets sounded the war trumpet. The dream of a universal monarchy was
looked upon as absurd and hateful, and the individuality of a nation
as the only possible security for its virtue.[134] War was no longer
attributed to the pretended interests of princes or to the caprices of
their advisers. It was praised as a vehicle of the highest right,[135]
as a source or national renovation.[136] {368} By war, says Hegel,
"finite pursuits are rendered unstable, and the ethical health of
peoples is preserved. Just as the movement of the ocean prevents the
corruption which would be the result of perpetual calm, so by war
people escape the corruption which would be occasioned by a continuous
or eternal peace."[137] Similar views have been expressed by later
writers. War is glorified as a stimulus to the elevated virtues of
courage, disinterestedness, and patriotism.[138] It has done more
great things in the world than the love of man, says Nietzsche.[139]
It is the mother of art and of all civil virtues, says Mr.
Ruskin.[140] Others defend war, not as a positive good, but as a
necessary means of deciding the most serious international
controversies, denying that arbitration can be a substitute for all
kinds of war. Questions which are intimately connected with national
passions and national aspirations, and questions which are vital to a
nation's safety, will never, they say, be left to arbitration. Each
State must be the guardian of its own security, and cannot allow its
independence to be calmly discussed and adjudicated upon by an
external tribunal.[141] Moreover, arbitration would prove effective
only where the contradictory pretensions could be juridically
formulated, and these instances are by far the less numerous and the
less important.[142] And would it not, in many cases, be impossible to
find impartial arbiters? Would not arbitration often be influenced by
a calculation of the forces which every power interested could bring
into the field, and would not war be resorted to where arbitration
failed to reconcile conflicting interests, or where a decision was
opposed to a high-spirited people's sense of justice? These and
similar arguments are constantly adduced against the idea of a
perpetual peace. But at the same time the opponents of war are
becoming more numerous {369} and more confident every day. Already
after the fall of Napoleon, when there was a universal longing for
peace in the civilised world, the first Peace Societies were
formed;[143] and the idea of Saint-Pierre, from being the dream of a
philosopher, has become the object of a popular movement which is
rapidly increasing in importance. There is every reason to believe
that, when the present high tide of nationalism has subsided, and the
subject of war and peace is no longer looked upon from an exclusively
national point of view, the objections which are now raised against
arbitration will at last appear almost as futile as any arguments in
favour of private war or blood-revenge. There is an inveterate
tendency in the human mind to assume that existing conditions will
remain unchanged. But the history of civilisation shows how unfounded
any such assumption is with reference to those conditions which
determine social relationships and the extent of moral rights and duties.

[Footnote 134: Fichte, _Reden an die deutsche Nation_. _Cf._ _Idem_,
_Ueber den Begriff des wahrhaften Krieges_.]

[Footnote 135: Arndt, quoted by Jähns, _Krieg, Frieden und Kultur_,
p. 302.]

[Footnote 136: Anselm von Feuerbach, _Unterdrückung und
Wiederbefreiung Europens_.]

[Footnote 137: Hegel, _Grundlinien der Philosophie des Rechts_, § 324,
p. 317 (English translation, p. 331).]

[Footnote 138: See, _e.g._, Mabille, _La Guerre_, p. 139.]

[Footnote 139: Nietzsche, _Also sprach Zarathustra_, i. 63.]

[Footnote 140: Ruskin, _Crown of Wild Olive_, Lecture on War (_Works_,
vi. 99, 105).]

[Footnote 141: Lawrence, _op. cit._ p. 275 _sq._ Sidgwick, 'Morality
of Strife,' in _International Journal of Ethics_, i. 13.]

[Footnote 142: Geffken, quoted by Jähns, _op. cit._ p. 352, n. 2.]

[Footnote 143: Jähns, _op. cit._ p. 307 _sq._]

It is said that, though Christianity has not abolished war, it has
nevertheless, even in war, asserted the principle that human life is
sacred by prohibiting all needless destruction. The Canon, 'De treuga
et pace,' laid down the rule that non-resisting persons should be
spared;[144] and Franciscus a Victoria maintained not only that
between Christian enemies those who made no resistance could not
lawfully be slain,[145] but that even in war against the Turks it was
wrong to kill children and women.[146] However, this doctrine of mercy
was far in advance of the habits and general opinion of the time.[147]
If the simple peasant was often spared, that was largely from motives
of prudence,[148] or because the valiant knight considered him
unworthy of the lance.[149] As late as the seventeenth century,
Grotius was certainly not supported by the spirit of the age when he
argued that, "if justice {370} do not require, at least mercy does,
that we should not, except for weighty causes tending to the safety of
many, undertake anything which may involve innocent persons in
destruction";[150] or when he recommended enemies willing to surrender
on fair conditions, or unconditionally, to be spared.[151] Afterwards,
however, opinion changed rapidly. Pufendorf, in echoing the doctrine
of Grotius,[152] spoke to a world which was already convinced; and in
the eighteenth century Bynkershoek stands alone in giving to a
belligerent unlimited rights of violence.[153] In reference to the
assumption that this change of opinion is due to the influence of the
Christian religion, it is instructive to note that Grotius, in support
of his doctrine, appealed chiefly to pagan authorities, and that even
savage peoples, without the aid of Christianity, have arrived at the
rule which in war forbids the destruction of helpless persons and
captives.

[Footnote 144: Gregory IX. _Decretales_, i. 34. 2.]

[Footnote 145: Franciscus a Victoria, _op. cit._ vi. 13, 35, 48; pp.
232, 241, 246 _sq._]

[Footnote 146: _Ibid._ vi. 36, p. 241.]

[Footnote 147: Hall, _Treatise on International Law_, p. 395, n. 1.]

[Footnote 148: d'Argentré, _L'histoire de Bretagne_, p. 391.]

[Footnote 149: Mills, _op. cit._ p. 132.]

[Footnote 150: Grotius, _op. cit._ iii. 11. 8.]

[Footnote 151: _Ibid._ iii. 11. 14 _sqq._]

[Footnote 152: Pufendorf, _De jure naturæ et gentium_, viii. 6. 8,
p. 885.]

[Footnote 153: van Bynkershoek, _Questiones juris publici_, i. 1, p.
31: "Omnis enim vis in bello justa est." Hall, _Treatise on
International Law_, p. 395, n. 1.]

The prevailing attitude towards war indicates the survival, in modern
civilisation, of the old feeling that the life of a foreigner is not
equally sacred with the life of a countryman. In times of peace this
feeling is usually suppressed; it appears in no existing law on
homicide, nor does it, generally, find expression in public opinion.
It dares to disclose itself only in the form of national
aggressiveness, under the flag of patriotism, or, perhaps, in the
treatment of the aborigines of some distant country. The behaviour of
European colonists towards coloured races only too often reminds us of
the manner in which savages treat members of a foreign tribe. It was
said that the frontier peasants at the Cape found nothing morally
wrong in the razzias which they undertook against the Bushmans,
without any provocation whatsoever, though they would consider it a
heinous sin to do the same to their Christian fellow-men.[154] In
Australia {371} there are instances reported of young colonists
employing the Sunday in shooting blacks for the sake of sport. "The
life of a native," says Mr. Lumholtz, "has but little value,
particularly in the northern part of Australia, and once or twice
colonists offered to shoot blacks for me so that I might get their
skulls. On the borders of civilisation men would think as little of
shooting a black man as a dog. The law imposes death by hanging as the
penalty for murdering a black man, but people live so far apart in
these uncivilised regions that a white man may in fact do what he
pleases with the blacks. . . . In the courts the blacks are
defenceless, for their testimony is not accepted. The jury is not
likely to declare a white man guilty of murdering a black man. On the
other hand if a white man happens to be killed by the blacks, a cry is
heard throughout the whole colony."[155]

[Footnote 154: Waitz, _Introduction to Anthropology_, p. 314.]

[Footnote 155: Lumholtz, _Among Cannibals_, p. 346 _sqq._ See also
Mathew, in _Jour. & Proceed. Roy. Soc. N. S. Wales_, xxiii. 390;
Breton, _Excursions in New South Wales_, p. 200 _sq._; Stokes,
_Discoveries in Australia_, ii. 459 _sqq._]




CHAPTER XVI

HOMICIDE IN GENERAL (_concluded_)


IN the last two chapters we have only been concerned with the
statement of facts; we shall now make an attempt to explain those
facts. What is the source of the moral commandment, "Thou shalt not
kill"? And what is the cause of its original narrowness and of its
subsequent extension?

Mr. Spencer suggests that the taking of life was regarded as a wrong
done to the family of the dead man or to the society of which he was a
member, before it came to be conceived of as a wrong done to the
murdered man himself.[1] But considering the mutual sympathy which
prevails in small savage communities, it seems extremely probable that
sympathetic resentment felt on account of the injury suffered by the
victim has from the beginning been a potent cause of the condemnation
of homicide. Savages, no less than civilised mankind, practically
regard a man's life as his highest good. Whatever opinions may be held
about the existence after death, whatever blessings may be supposed to
await the disembodied soul, nobody likes to be hurried into that
existence by another's will. According to early beliefs, the soul of a
murdered man is furious with the person who slew him, and finds no
rest until his death has been avenged.[2] His friends and comrades
pity his fate and {373} feel resentment on his behalf; whereas, in a
state of culture where sympathy is restricted to a narrow group of
people, no such resentment will be felt if the victim is a member of
another group. On the contrary, when he is regarded as an actual or
potential enemy, or when the slaying of him is taken for a test of
courage, the manslayer will be applauded by his own people, and his
deed will be styled good or meritorious. In some cases superstition,
also, is an encouragement to extra-tribal homicide. The Kukis believe
that, in paradise, all the enemies whom a man has killed will be in
attendance on him as slaves.[3] A similar belief partly lies at the
bottom of the custom of head-hunting;[4] whilst, according to other
notions, the soul of the man whose head is procured is transformed
into a guardian spirit.[5] A Kayan chief said of the custom in
question, "It brings us blessings, plentiful harvests, and keeps off
sickness and pains; those who were once our enemies, hereby become our
guardians, our friends, our benefactors."[6] Now, progress in
civilisation is generally marked by an expansion of the altruistic
sentiment; and this largely explains why the prohibition of homicide
has come to embrace more and more comprehensive circles of men, and
finally, in the most advanced cases, the whole human race.

[Footnote 1: Spencer, _Principles of Ethics_, ii.]

[Footnote 2: See _infra_, on Blood-revenge.]

[Footnote 3: Dalton, _Descriptive Ethnology of Bengal_, p. 46.]

[Footnote 4: Ling Roth, _Natives of Sarawak_, ii. 141.]

[Footnote 5: Wilken, _Het animisme bij de volken van den Indischen
Archipel_, p. 124.]

[Footnote 6: Furness, _Home-Life of Borneo Head-Hunters_, p. 59.]

But whilst homicide is censured as a wrong done to the person slain,
it is at the same time viewed as an injury inflicted upon the
survivors. It deprived his friends of his company, his family and
community of a useful member. In Arabia, when a man was killed, his
tribesmen, instead of mentioning his name, used to say, "Our blood has
been spilt."[7] According to Lafitau, the loss of a single person
seemed to the North American Indians a subject or great regret,
because it weakened the family.[8] {374} Among the Basutos, again,
murder is condemned "as a violation of the sacred rights of a father,
who is deprived of the services of his son, or of a widow and orphans,
who are left without support."[9] Especially when a person is
considered more or less the property of another, the taking of his
life is largely looked upon as an offence against the owner. Mr.
Warner states of the Kafirs, "All homicide must . . . be atoned for;
the principle assumed being, that the persons of individuals are the
property of the Chief, and that having been deprived of the life of a
subject, he must be compensated for it."[10] We meet with a somewhat
similar notion in the history of English legislation. In his book on
the Commonwealth of England, Thomas Smith observes, "Attempting to
impoison a man, or laying a waite to kill a man, though hee wound him
dangerously, yet if death follow not, it is no fellony by the law of
England, for the Prince hath lost no man, and life ought to be giuen
we say for life only."[11] In the Middle Ages homicide was conceived
as a breach of the "King's peace"; and both before and afterwards it
has been stigmatised as a disturbance of public tranquillity and an
outrage on public safety. In the Anglo-Saxon _wer_ and _wite_ we find
a clear distinction between the private and public aspects of
homicide.[12]

[Footnote 7: Robertson Smith, _Marriage and Kinship in Early Arabia_,
p. 26.]

[Footnote 8: Lafitau, _M[oe]urs des sauvages ameriquains_, ii. 163.]

[Footnote 9: Casalis, _Basutos_, p. 224 _sq._]

[Footnote 10: Warner, in Maclean, _Compendium of Kafir Laws_,
p. 60 _sq._]

[Footnote 11: Thomas Smith, _Common-wealth of England_, p. 194 _sq._]

[Footnote 12: _Cf._ Pollock and Maitland, _History of English Law
before the Time of Edward I._ i. 48.]

A manslayer not only causes a loss to the group which he deprives of a
member, but he also may give trouble to his own people, who, in
consequence, disapprove of his act. Among the Yahgans of Tierra del
Fuego, says Mr. Bridges, "many things conspire to make the shedding of
blood a fearful thing. A murderer imperils all his friends and
connections more or less, and consequently estranges them from
himself. This state of things is the greatest safeguard to human life
we can conceive."[13] Among the Káfirs of the Hindu-Kush, "the mere
killing of an {375} individual is looked upon as a small affair,
provided that he does not belong to the tribe, or to another near
tribe with which it is at peace, for in the latter case it might
result in war."[14]

[Footnote 13: Bridges, in _South American Missionary Magazine_,
xiii. 153.]

[Footnote 14: Scott Robertson, _Káfirs of the Hindu-Kush_, p. 194.]

We have still to notice the common idea that a manslayer is unclean.
The ghost of the victim persecutes him, or actually cleaves to him
like a miasma; and he must undergo rites of purification to get rid of
the infection. Until this is done, he is among many peoples regarded
as a source of danger, and is consequently cut off from free
intercourse with his fellows.

Among the Ponka Indians Mr. Dorsey found the belief that a murderer
is surrounded by the ghosts, who keep up a constant whistling; that he
can never satisfy his hunger, though he eat much food; and that he
must not be allowed to roam at large lest high winds arise.[15] Of the
warriors among certain North American Indians Adair wrote that, "as
they reckon they are become impure by shedding human blood," they
hasten to observe a fast of three days.[16] Among the Natchez,
according to Charlevoix, "those who for the first time have made a
prisoner or taken off a scalp, must, for a month, abstain from seeing
their wives, and from eating flesh. They imagine, that if they should
fail in this, the souls of those whom they have killed or burnt, would
effect their death, or that the first wound they should receive would
be mortal; or at least, that they should never gain any advantage over
their enemies."[17] The Kafirs and Bechuanas practise various
ceremonies of purification after their fights.[18] The Basutos say,
"Human blood is heavy, it prevents him who has shed it from running
away."[19] They consider it necessary that, on return from battle,
"the warriors should rid themselves, as soon as possible, of the blood
they have shed, or the shades of their victims would pursue them
incessantly and disturb their slumbers"; hence they go in full armour
to the nearest stream, and, as a rule, at the moment they enter the
water a diviner, placed {376} higher up, throws some purifying
substances into the current.[20] Among the Bantu Kavirondo, "when a
man has killed an enemy in warfare he shaves his head on his return
home, and his friends rub 'medicine' (generally the dung of goats)
over his body to prevent the spirit of the deceased from worrying the
man by whom he has been slain."[21] Among the Ja-luo, a warrior who
has slain an enemy not only shaves his hair, but, after entering the
village, prepares a big feast to propitiate the man he has killed so
that his ghost may not give trouble.[22] Among the Wagogo of German
East Africa, the father of a young warrior who has shed blood gives to
his son a goat "to clean his sword."[23] After the slaughter of the
Midianites, those Israelites who had killed any one, or touched the
slain, had to remain outside the camp for seven days, purifying
themselves and everything in their possession either by water, or
fire, or both.[24] So, also, if a person had been slain in the land of
Israel, and the perpetrator of the deed could not be detected, the
elders of the city which was next unto the slain had to undergo a
ceremony of purification in order to rid the city of "the guilt of
innocent blood.[25] According to the Laws of Manu, a person who has
unintentionally killed a Brâhmana shall make a hut in the forest and
dwell in it during twelve years;[26] in order to remove the guilt he
shall throw himself thrice headlong into a blazing fire,[27] or walk
against the stream along the whole course of the river Sarasvatî,[28]
or shave off all his hair.[29] The ancient Greeks believed that one
who had suffered a violent end, when newly dead, was angry with the
author of his death.[30] The blood-guilty individual, as though
infected with a miasma, shunned all contact and conversation with
other people, and avoided entering their dwellings.[31] Even the
involuntary manslayer had to leave the country for some time;
according to Plato's 'Laws,' he "must go out of the way of his victim
for the entire period of a year, and not let himself be found in any
spot which was familiar to him throughout the country."[32] {377} Nor
must he return to his land until sacrifice had been offered and
ceremonies of purification performed.[33]

[Footnote 15: Dorsey, 'Siouan Cults,' in _Ann. Rep. Bur. Ethn._ xi. 420.]

[Footnote 16: Adair, _History of the American Indians_, p. 388.]

[Footnote 17: Charlevoix, _Voyage to North America_, ii. 203.]

[Footnote 18: Arbousset and Daumas, _Exploratory Tour to the Colony of
the Cape of Good Hope_, p. 394 _sqq._ Alberti, _De Kaffers aan de
Zuidkust van Afrika_, p. 104.]

[Footnote 19: Casalis, _op. cit._ p. 309.]

[Footnote 20: _Ibid._ p. 258.]

[Footnote 21: Johnston, _Uganda Protectorate_, ii. 743 _sq._]

[Footnote 22: _Ibid._ ii. 794.]

[Footnote 23: Cole, 'Notes on the Wagogo of German East Africa,' in
_Jour. Anthr. Inst._ xxxii. 321.]

[Footnote 24: _Numbers_, xxxi. 19 _sqq._]

[Footnote 25: _Deuteronomy_, xxi. 1 _sq._]

[Footnote 26: _Laws of Manu_, xi. 73.]

[Footnote 27: _Ibid._ xi. 74.]

[Footnote 28: _Ibid._ xi. 78.]

[Footnote 29: _Ibid._ xi. 79.]

[Footnote 30: Plato, _Leges_, ix. 865.]

[Footnote 31: Müller, _Dissertations on the Eumenides of Æschylus_, p.
103. Aeschylus says (Eumenides, 448 _sqq._) it is the custom that a
murderer should not speak anything until he has been sprinkled with
the spurted blood of a slain sucking-pig. _Cf._ Apollonius Rhodius,
_Argonautica_, iv. 700 _sqq._; Aristotle, _De republica Atheniensium_,
57.]

[Footnote 32: Plato, _Leges_, ix. 865.]

[Footnote 33: Demosthenes, _Contra Aristocratem_, 71 _sqq._, p. 643
_sq._ Müller, _Dissertations_, p. 106 _sq._ Frazer, _Golden Bough_, i.
341. On the uncleanness of manslayers see also Tylor, _Primitive
Culture_, ii. 433 _sq._; Frazer, _op. cit._ i. 331 _sqq._]

The state of uncleanness incurred by the shedding of human blood does
not intrinsically involve moral guilt. As appears from many of the
instances just referred to, it results not only from the murder of a
tribesman, but from so meritorious a deed as the slaying of a foe. In
Nukahiva, for instance, a man who has killed the highest person, or
one of the highest, among the enemy, is tabooed for ten days, during
which he is not allowed to hold intercourse with his wife nor to
meddle with fire; but, at the same time, he is treated with
distinction, and presents of pigs are brought to him.[34] On the other
hand, there can be no doubt that in various cases the polluting effect
attributed to manslaughter has exercised some influence upon the moral
judgment of the act. Whenever the commission of an act of homicide has
any tendency at all to call forth moral blame, the disapproval of the
deed will easily be 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. The
deprivations which he has to undergo come to be looked upon in the
light of a punishment, and the rights of cleansing as a means of
removing guilt. The taboo rules which, among the Omahas, a murderer
whose life was spared had to observe for a period varying from two to
four years are spoken of by Mr. Dorsey as his "punishment," and this
seems also partly to have been the native point of view. The murderer
sometimes wandered at night, crying, and lamenting his offence, until,
at the end of the designated period, the kindred of his victim heard
his crying, and said:--"It is enough. Begone, and walk among the
crowd. {378} Put on moccasins and wear a good robe."[35] Moreover, the
notion of a persecuting ghost may be replaced by the notion of an
avenging god. Confusions are common in the world of mystery; doings or
functions attributed to one being are afterwards transferred to
another--this is a rule of which many important examples will be given
in following chapters. The Jbâla of Northern Morocco do not nowadays
believe in ghosts, yet they regard a person who has shed human blood
to be in some degree unclean for the rest of his life. Poison oozes
out from underneath his nails; hence anybody who drinks the water in
which he has washed his hands will fall dangerously ill. The meat of
an animal which he has killed is difficult to digest, and so is any
food eaten in his company. If he comes to a place where people are
digging a well, the water will at once run away. He is said to be
_mejnûn_, haunted by _jnûn_ (_jinn_), a race of beings entirely
distinct from men, living or dead. The Greenlanders believed that an
abortion or a child born under concealment was transformed into an
evil spirit called _ángiaq_, for the purpose of avenging the
crime.[36] In Eastern Central Africa, "after killing a slave, the
master is afraid of _Chilope_. This means that he will become
emaciated, lose his eye-sight, and ultimately die a miserable death.
He therefore goes to his chief and gives him a certain fee (in cloth,
or slaves, or such legal tenders), and says, 'Get me a charm
(_luasi_), because I have slain a man.' When he has used this charm,
which may be either drunk or administered in a bath, the danger passes
away."[37] Among the Omahas the ghost of the murdered man was not lost
sight of; the murderer "was obliged to pitch his tent about a quarter
of a mile from the rest of the tribe when they were going on the hunt
lest the ghost of his victim should raise a high wind, which might
cause damage." But at the same time his deed was considered offensive
to {379} Wakanda; no one wished to eat with him, for they said, "If we
eat with whom Wakanda hates, for his crime, Wakanda will hate us."[38]
In the Chinese books there are numerous instances of persons haunted
by the souls of their victims on their death-bed, and in most of these
cases the ghosts state expressly that they are avenging themselves
with the special authorisation of Heaven.[39] The Greek belief in the
Erinys of a murdered man no doubt originated in the earlier notion of
a persecuting ghost, whose anger or curses in later times were
personified as an independent spirit.[40] And the transformation went
further still: the Erinyes were represented as the ministers of Zeus,
who by punishing the murderer carried out his divine will. Zeus was
considered the originator of the rites of purification; when visited
with madness by the Erinyes, Ixion appealed to Zeus Hikesios, and at
the altar of Zeus Meilichios Theseus underwent purification for the
shedding of kindred blood.[41] Originally, as it seems, only the
murder of a kinsman was an offence against Zeus and under the ban of
the Erinyes, but later on their sphere of action was expanded, and all
bloodshed, if the victim had any rights at all within the city, became
a sin which needed purification.[42] Uncleanness was thus transformed
into spiritual impurity. When the pollution with which a manslayer is
tainted is regarded as merely the work of a ghost or of some
spirit-substitute who, like the Moorish _jnûn_, has nothing to do with
the administration of justice, it may be devoid of all moral
significance in spite of the dread it inspires; but the case is
different when it comes to be conceived of as a divine punishment, or
as a sin-pollution in the eyes of the supreme god. Such a
transformation of ideas could hardly take place {380} unless the act,
considered polluting, were by itself apt to evoke moral disapproval.
But it is obvious that the gravity of the offence is increased by the
religious aspect it assumes.

[Footnote 34: von Langsdorf, _Voyages and Travels_, i. 133.]

[Footnote 35: Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._
iii. 369.]

[Footnote 36: Rink, _Tales and Traditions of the Eskimo_, pp. 45,
439 _sq._]

[Footnote 37: Macdonald, _Africana_, i. 168.]

[Footnote 38: Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._
iii. 369.]

[Footnote 39: de Groot, _Religious System of China_, (vol. iv. book)
ii. 441.]

[Footnote 40: See Müller, _Dissertations_, p. 155 _sqq._; Rohde,
_Psyche_, p. 247; _Idem_, 'Paralipomena,' in _Rheinisches Museum für
Philologie_, 1895, p. 6 _sqq._]

[Footnote 41: Farnell, _Cults of the Greek States_, i. 66 _sqq._
Rohde, _Psyche_, p. 249. _Idem_, in _Rheinisches Museum_, 1895, p. 18.
Stengel, _Die griechischen Kultusaltertümer_, p. 140.]

[Footnote 42: Farnell, _op. cit._ i. 68, 71. Rohde, _Psyche_, p. 247.]

In yet another way the defiling effect attributed to the taking of
human life has had an influence on religious and moral ideas. Such
defilement is shunned not only by men, but, in a still higher degree,
by gods. The shedding of human blood is commonly prohibited in sacred
places. "In almost every Indian nation," says Adair, "there are
several peaceable towns, which are called 'old-beloved,' 'ancient,
holy, or white towns'; they seem to have been formerly 'towns of
refuge,' for it is not in the memory of their oldest people, that ever
human blood was shed in them; although they often force persons from
thence, and put them to death elsewhere."[43] The Aricaras of the
Missouri, according to Bradbury, have in the centre of the largest
village a sacred lodge called the "medicine lodge," which, "in one
particular corresponds with the sanctuary of the Jews, as no blood is
on any account whatsoever to be spilled within it, not even that of an
enemy."[44] At Athens the prosecution for homicide began with
debarring the criminal from all sanctuaries and assemblies consecrated
by religious observances.[45] According to Greek ideas, purification
was an essential preliminary to an acceptable sacrifice.[46] Hector
said, "I shrink from offering a libation of gleaming wine to Zeus with
hands unwashed; nor can it be in any way wise that one should pray to
the son of Kronos, god of the storm-cloud, all defiled with blood
{381} and filth."[47] In many parts of Morocco, a man who has slain
another person is never afterwards allowed to kill the sacrificial
sheep at the "Great Feast."[48] When David had in his heart to build a
temple, God said to him, "Thou shalt not build a house for my name,
because thou hast been a man of war, and **hast shed blood."[49] A
decree of the penitential discipline of the Christian Church, which
was enforced even against emperors and generals, forbade anyone whose
hands had been imbrued in blood to approach the altar without a
preparatory period of penance.[50]

[Footnote 43: Adair, _History of the American Indians_, p. 159.]

[Footnote 44: Bradbury, _Travels in the Interior of America_, p. 165
_sq._ Our informer adds, "Nor is any one, having taken refuge there,
to be forced from it"; but with facts of this kind we are not
concerned at present. They belong to the right of sanctuary, in the
strict sense of the term, and, as will be seen, this right is based on
a different principle, which prevents even the polluted manslayer,
tainted with newly shed blood, from being dragged out of the sanctuary
to which he has fled in the capacity of a suppliant.]

[Footnote 45: Aristotle, _De republica Atheniensium_, 57. Müller,
_Dissertations_, p. 103.]

[Footnote 46: Donaldson, 'Expiatory and Substitutionary Sacrifices of
the Greeks,' in _Transactions Roy. Soc. Edinburgh_, xxvii. 433.
Farnell, _op. cit._ i. 72.]

[Footnote 47: _Iliad_, vi. 266 _sqq._ _Cf._ Vergil, _Æneis_,
ii. 717 _sqq._]

[Footnote 48: I found this custom prevalent both among Arab and Berber
tribes in different parts of the country; see my article, "The Popular
Ritual of the Great Feast in Morocco," in _Folk-Lore_, xxii. 144.]

[Footnote 49: _1 Chronicles_, xxviii. 2 _sq._]

[Footnote 50: Lecky, _History of European Morals_, ii. 39.]

Whilst, from fear of contaminating anything holy, casual restrictions
have thus been imposed on all kinds of manslayers, whether murderers
or those who have killed an enemy in righteous warfare, more stringent
rules have been laid down for persons permanently connected with the
religious cult. Adair states that the "holy men" of the North American
Indians, like the Jewish priests, were by their function absolutely
forbidden to shed human blood, "notwithstanding their propensity
thereto, even for small injuries."[51] Herodotus says of the Persian
Magi that they "kill animals of all kinds with their own hands,
excepting dogs and men."[52] The Druids of Gaul never went to war,[53]
probably in order to keep themselves free from blood-pollution;[54] it
is true, they sacrificed human victims to their gods, but those they
burnt.[55] To the same class of facts belong those decrees of the
Christian Church which forbade clergymen taking part in a battle.
Moreover, if a Christian priest passed a sentence of death {382} he
was punished with degradation and imprisonment for life;[56] nor was
he allowed to write or dictate anything with a view to bringing about
such a sentence.[57] He must not perform a surgical operation by help
of fire or iron.[58] And if he killed a robber in order to save his
life, he had to do penance till his death.[59] The hands which had to
distribute the blood of the Lamb of God were not to be polluted with
the blood of those for whose salvation it was shed.[60]

[Footnote 51: Adair, _op. cit._ p. 152.]

[Footnote 52: Herodotus, i. 40. The Shluh of Southern Morocco and some
other Berber tribes, in the central parts of the same country,
consider that not only homicide, but the killing of a dog for ever
after prevents a person from performing sacrifice at the "Great
Feast"; see _Folk-Lore_, xxii, 144.]

[Footnote 53: Cæsar, _De bello gallico_, vi. 14.]

[Footnote 54: d'Arbois de Jubainville, _Civilisation des Celtes_,
p. 254.]

[Footnote 55: Cæsar, _De bello gallico_, vi. 16.]

[Footnote 56: Gratian, _Decretum_, ii. 23. 8. 30.]

[Footnote 57: _Concilium Lateranense IV._, A.D. 1215, ch. 18
(Labbe-Mansi, _Sacrorum Conciliorum collectio_, xxii. 1007).]

[Footnote 58: _Concilium Lateranense IV._, A.D. 1215, ch. 18
(Labbe-Mansi, _op. cit._ xxii. 1007).]

[Footnote 59: Thomassin, _Dictionnaire de discipline ecclésiastique_,
ii. 1074.]

[Footnote 60: _Ibid._ ii. 1069.]

It cannot be doubted that this horror of blood-pollution had a share
in that regard for human life which from the beginning, and especially
in early times, was a characteristic of Christianity. But in other
respects also, Christian feelings and beliefs had an inherent tendency
to evoke such a sentiment. The cosmopolitan spirit of the Christian
religion could not allow, in theory at least, that the life of a man
was less sacred because he was a foreigner. The extraordinary
importance it attached to this earthly life as a preparation for a
life to come naturally increased the guilt of any one who, by cutting
it short, not only killed the body, but probably to all eternity
injured the soul.[61] In a still higher degree than most other crimes,
homicide was regarded as an offence against God, because man had been
made in His image.[62] Gratian says that even the slayer of a Jew or a
heathen has to undergo a severe penance, "quia imaginem Dei et spem
futuræ conversionis exterminat."[63]

[Footnote 61: _Concilium Lugdumense I._, A.D. 1245, Additio, de
Homicidio (Labbe-Mansi, _op. cit._ xxiii. 670).]

[Footnote 62: von Eicken, _Geschichte und System der Mittelalterlichen
Weltanschauung_, p. 568.]

[Footnote 63: Gratian, _Decretum_, i. 50. 40.]




CHAPTER XVII

THE KILLING OF PARENTS, SICK PERSONS, CHILDREN--FETICIDE


WE have found that among mankind at large there is a moral rule which
forbids people to kill members of their own society. We shall now see
that the stringency of this rule is subject to variations, depending
on the special relationship in which persons stand to one another or
on their social _status_, and that there are cases to which it does
not apply at all.

Owing to the regard which children are expected to feel for their
parents, parricide is considered the most aggravated form of murder.
Nowhere have parents been more venerated by their children than among
the nations of archaic culture, and nowhere has parricide been
regarded with greater horror. In China it is punished with the most
ignominious of all capital punishments, the so-called "cutting into
small pieces"; and in some instances, when the crime has occurred in a
district, in addition to all punishments inflicted on persons, the
wall of the city where the deed was committed is pulled down in parts,
or modified in shape, a round corner is substituted for a square one,
or a gate removed to a new situation, or even closed up altogether.[1]
In Corea the parricide is burned to death.[2] {384} Among the ancient
Egyptians, we are told, he was sentenced to be lacerated with
sharpened reeds, and after being thrown on thorns he was burned.[3] In
Exodus we read of the "smiting" of parents, but parricide is not
expressly mentioned, perhaps because the Hebrew legislator, like Solon
at Athens,[4] did not think it possible that any one could be guilty
of so unnatural a barbarity.[5] Herodotus states that the same notion
was held by the ancient Persians, who said that no one ever yet killed
his own father or mother, and that all cases of so-called parricide if
carefully examined, would be found to have been committed by
supposititious children or those born in adultery, it being beyond the
bounds of probability that a true father should be murdered by his own
son.[6] Plato says in his 'Laws':--"If a man could be slain more than
once, most justly would he who in a fit of passion has slain father or
mother undergo many deaths. How can he whom, alone of all men, even in
defence of his life, and when about to suffer death at the hands of
his parents, no law will allow to kill his father or his mother who
are the authors of his being, and whom the legislator will command to
endure any extremity rather than do this--how can he, I say, lawfully
receive any other punishment?"[7] At Athens parricides were the only
persons accused of murder who were not allowed the chance of escaping
before sentence was passed, but were instantly arrested.[8] According
to Roman Law, a committer of _parricidium_ was not subjected to any of
the regular modes of capital punishment, but for "the most execrable
of crimes" was provided "the most strange of punishments." The
criminal was sewn up in a leathern sack with a cur, a cock, a viper,
and an ape, and, when cooped up in this fearful prison, was hurled
into the sea, or into {385} some neighbouring river.[9] But by the
term _parricidium_ was not understood the murder of a parent only.
According to the 'Lex Pompeia de parricidiis,' it included the murder
of any of the following persons: an ascendant or descendant in any
degree,[10] a brother or sister, an uncle or aunt, a cousin, a husband
or wife, a bridegroom or bride, a father- or mother-in-law, a son- or
daughter-in-law, a step-parent or step-child, a patron; and Mommsen
suggests that in earlier times it had a still wider significance,
being applied to intentional homicide in general.[11] But whilst the
punishment just referred to was in other cases of _parricidium_
replaced by banishment, it was, during the Empire at least, actually
inflicted upon him who murdered an ascendant.[12]

[Footnote 1: Doolittle, _Social Life of the Chinese_, i. 338 _sq._
Smith, _Chinese Characteristics_, p. 229.]

[Footnote 2: Griffis, _Corea_, p. 236.]

[Footnote 3: Diodorus Siculus, _Bibliotheca historica_, i. 77. 8.]

[Footnote 4: Diogenes Laërtius, _Solon_, 10. Cicero, _Pro S. Roscio
Amerino_, 25. Orosius, _Historiæ_, v. 16.]

[Footnote 5: _Exodus_, xxi. 15. _Cf._ Keil, _Manual of Biblical
Archæology_, ii. 376.]

[Footnote 6: Herodotus, i. 137.]

[Footnote 7: Plato, _Leges_, ix. 869. _Cf._ _ibid._ ix. 873.]

[Footnote 8: Müller, _Dissertations on the Eumenides of Æschylus_, p.
91. _Cf._ Euripides, _Orestes_, 442 _sqq._]

[Footnote 9: _Institutiones_, iv. 18. 6.]

[Footnote 10: Unless the descendant was in the _potestas_ of him who
committed the deed.]

[Footnote 11: Mommsen, _Römisches Strafrecht_, pp. 644, 645, 612 _sq._]

[Footnote 12: _Ibid._ p. 645 _sq._]

Whilst Christianity generally increased the sanctity of human life, it
could add nothing to the horror with which parricide was regarded by
the ancients. The Church punished it more severely than ordinary
murder,[13] and so did, at least in Latin countries, the secular
authorities.[14] In France, even to this day, a person convicted of
parricide is "conduit sur le lieu de l'exécution en chemise, nu-pieds,
et la tête couverte d'un voile noir";[15] and whilst _meurtre_ is
excusable if provoked by grave personal violence or by an attempt to
break into a dwelling-house by day, parricide is never excusable under
any circumstances.[16]

[Footnote 13: Gregory III., _Judicia congrua p[oe]nitentibus_, ch. 3
(Labbe-Mansi, _Conciliorum collectio_, xii. 289). _P[oe]nitentiale
Bigotianum_, iv. 1 (Wasserschleben, _Bussordnungen der abendländischen
Kirche_, p. 453). _P[oe]nitent. Pseudo-Theodori_, xxi. 18 (_ibid._
p. 588).]

[Footnote 14: Chauveau and Hélie, _Théorie du Code Pénal_, iii. 394
(France). Salvioli, _Manuale di storia del diritto italiano_, p. 570.
In Scotland, also, parricide formerly had a place in the list of
aggravated murders (Hume, _Commentaries on the Law of Scotland_, i.
459 _sq._; for a sentence passed in 1688, see Pitcairn, _Criminal
Trials in Scotland_, iii. 198); though nowadays it is penalised in the
same way as other forms of murder (Erskine, _Principles of the Law of
Scotland_, p. 559). There never was any special punishment for
parricide in English law (Blackstone, _Commentaries on the Laws of
England_, iv. 202. Stephen, _History of the Criminal Law of England_,
iii. 95).]

[Footnote 15: _Code Pénal_, art. 13.]

[Footnote 16: _Ibid._ art. 321 _sqq._]

{386} As regards the feelings with which ordinary parricide is looked
upon by uncivilised peoples, direct information is almost entirely
wanting. It is rarely mentioned at all, no doubt because it is very
unusual.[17] Among the Kafirs of Natal, though murder is generally
punished by a fine, death is inflicted on him who kills a parent.[18]
Among the Ossetes a parricide draws upon himself a fearful punishment:
he is shut up in his house with all his possessions, surrounded by the
populace and burned alive.[19] To judge from the respect which, among
the majority of uncivilised peoples, children are considered to owe to
their parents, it seems very probable that the murder of a father or a
mother is generally condemned by them as a particularly detestable
form of homicide. But to this rule there is an important exception.
According to a custom prevalent among various savages or barbarians, a
parent who is worn out with age or disease is abandoned or killed.

[Footnote 17: Among the Omahas there have been a few cases of
parricide caused by drunkenness (Dorsey, 'Omaha Sociology,' in _Ann.
Rep. Bur. Ethn._ iii. 369). A Chukchi killed his father for charging
him with cowardice and awkwardness (Sarytschew, 'Voyage of Discovery,'
in _Collection of Modern and Contemporary Voyages_, vi. 51). In Lánda
"it is no uncommon thing for a son to murder his father in order to
step into his shoes" (_Emin Pasha in Central Africa_, p. 230). See
also Wilson and Felkin, _Uganda_, i. 224.]

[Footnote 18: Shooter, _Kafirs of Natal_, p. 103.]

[Footnote 19: von Haxthausen, _Transcaucasia_, p. 415.]

Hearne states that, among the Northern Indians, one half at least of
the aged persons of both sexes, when no longer capable of walking, are
left alone to starve and perish of want.[20] Among the Californian
Gallinomero, when the father can no longer feebly creep to the forest
to gather his back-load of fuel or a basket of acorns, and is only a
burden to his sons, "the poor old wretch is not infrequently thrown
down on his back and securely held while a stick is placed across his
throat, and two of them seat themselves on the ends of it until he
ceases to breathe."[21] The custom of killing or abandoning old
parents has been noticed among several other North {387} American
tribes,[22] the natives of Brazil,[23] various South Sea
Islanders,[24] a few Australian tribes,[25] and some peoples in
Africa[26] and Asia.[27] According to ancient writers, it occurred
formerly among many Asiatic[28] and European nations, including the
Vedic people[29] and peoples of Teutonic extraction.[30] As late as
the fifth or sixth century it was the custom among the Heruli for
relatives to kindle a funeral pile for their old folks, although a
stranger was employed to give the death wound.[31] And there is an old
English tradition of "the Holy Mawle, which they fancy hung behind the
church door, which when the father was seaventie, the sonne might
fetch to knock his father in the head, as effete and of no more
use."[32]

[Footnote 20: Hearne, _Journey to the Northern Ocean_, p. 346.]

[Footnote 21: Powers, _Tribes of California_, p. 178.]

[Footnote 22: Nansen, _First Crossing of Greenland_, ii. 331 (natives
on the east coast of Greenland). Seemann, _Voyage of "Herald,"_ ii. 66
(Eastern Eskimo). Catlin, _North American Indians_, i. 217. Lafitau,
_M[oe]urs des sauvages ameriquains_, i. 488 _sq._ Domenech, _Seven
Years' Residence in the Great Deserts of North America_, ii. 325
(north-western tribes). Lewis and Clarke, _Travels to the Source of
the Missouri River_, p. 442 (Dacotahs, Assiniboins, the hunting tribes
on the Missouri).]

[Footnote 23: von Martius, _Beiträge zur Ethnographie Amerika's_, i.
126, 127, 393. von Eschwege, _Brasilien_, i. 231 _sq._ (Uerequenás).
Among the Fuegians the practice in question seems to occur only
accidentally (Bridges, in _A Voice for South America_, xiii. 206).]

[Footnote 24: Codrington, _Melanesians_, p. 347. Romilly, _Western
Pacific_, p. 70 (Solomon Islanders). Brainne, _Nouvelle-Calédonie_, p.
255. Turner, _Samoa_, p. 335 _sq._ (Efatese). Seemann, _Viti_, p. 192
_sq._ Williams and Calvert, _Fiji_, pp. 116, 157 _sq._ Angas,
_Polynesia_, p. 342 (natives of Kunaie).]

[Footnote 25: Eyre, _Central Australia_, ii. 382. Dawson, _Australian
Aborigines_, p. 62 (tribes in Western Victoria).]

[Footnote 26: Arnot, _Garenganze_, p. 78 n. Andersson, _Lake Ngami_,
p. 197 _sq._ (Damaras). Kolben, _Present Stale of the Cape of Good
Hope_, i. 322, 334; Hahn, _The Supreme Being of the Khoi-Khoi_, p. 86
(Hottentots). Lepsius, _Letters from Egypt_, p. 202 _sq._ (Negro
tribes to the south of Kordofan). Post, _Afrikanische Jurisprudenz_,
i. 298 _sq._ Sartori, 'Die Sitte der Alten- und Krankentötung,' in
_Globus_, lxvii. 108.]

[Footnote 27: Hooper, _Ten Months among the Tents of the Tuski_, p.
188 _sq._; Dall, _Alaska_, p. 383 _sqq._ (Chukchi). Rockhill, _Land of
the Lamas_, p. 81 (Kokonor Tibetans).]

[Footnote 28: Herodotus, i. 216 (Massagetae). Strabo, xi. 8. 6
(Massagetae); xi. 11. 3 (Bactrians); xi. 11. 8 (Caspians).]

[Footnote 29: Zimmer, _Altindisches Leben_, p. 328.]

[Footnote 30: Grimm, _Deutsche Rechtsalterthümer_, p. 486 _sqq._]

[Footnote 31: Procopius, _De bello gothico_, ii. 14. _Cf._ Grimm,
_Kleinere Schriften_, ii. 241.]

[Footnote 32: Thoms, _Anecdotes and Traditions_, p. 84.]

However cruel this custom may appear to be, something is certainly to
be said in its favour. It is particularly common among nomadic hunting
tribes, owing to the hardships of life and the inability of decrepit
persons to keep up in the march. Mr. Morgan observes that, whilst
{388} "among the roving tribes of the wilderness the old and helpless
were frequently abandoned and, in some cases, hurried out of existence
as an act of greater kindness than desertion," this practice was
unknown among the Iroquois, who "resided in permanent villages, which
afforded a refuge for the aged."[33] With reference to certain tribes
of Western Victoria, Mr. Dawson remarks that the old people are a
burden to the tribe, and, should any sudden attack be made by an
enemy, the most liable to be captured, in which case they would
probably be tortured and put to a lingering death.[34] Moreover, in
times when the food-supply is insufficient to support all the members
of a community, it is more reasonable that the old and useless should
have to perish than the young and vigorous. Hahn was told that, among
the Hottentots, aged parents were sometimes abandoned by very poor
people who had not food enough to support them.[35] And among peoples
who have reached a certain degree of wealth and comfort, the practice
of killing the old folks, though no longer justified by necessity, may
still go on, partly through survival of a custom inherited from harder
times, partly from the humane intent of putting an end to lingering
misery.[36] What appears to most of us as an atrocious practice may
really be an act of kindness, and is commonly approved of, or even
insisted upon, by the old people themselves. Speaking of the ancient
Hottentot custom of famishing super-annuated parents in order to cause
their death, Kolben remarks:--"If you represent to the Hottentots, as
I have done very often, the inhumanity of this custom, they are
astonished at the representation, as proceeding, in their opinion,
from an inhumanity of your own. The custom, in their way of thinking,
is supported by very pious and very filial considerations. 'Is it not
a cruelty.' they ask you, 'to suffer either man or woman to languish
any considerable {389} time under a heavy, motionless old age? Can you
see a parent or a relative shaking and freezing under a cold, dreary,
heavy, useless old age, and not think, in pity to them, of putting an
end to their misery by putting, which is the only means, an end to
their days?'"[37] When Mr. Hooper, hearing of an old Chukchi woman who
was stabbed by her son, made some remarks on the frightful nature of
the act, his native companions answered him:--"Why should not the old
woman die? Aged and feeble, weary of life, and a burden to herself and
others, she no longer desired to cumber the earth, and claimed of him
who owned nearest relationship the friendly stroke which should let
out her scanty remnant of existence."[38] Catlin tells us that, among
the North American tribes who roamed about the prairies, the infirm
old people themselves uniformly insisted upon being left behind,
saying, "that they are old and of no further use--that they left their
fathers in the same manner--that they wish to die, and their children
must not mourn for them."[39] In Melanesia, says Dr. Codrington, when
sick and aged people were buried alive, it is certain that "there was
generally a kindness intended"; they used themselves to beg their
friends to put them out of their misery, and it was even considered a
disgrace to the family of an aged chief if he was not buried
alive.[40] In Fiji, also, it was regarded as a sign of filial
affection to put an aged parent to death. In his description of the
Fijians Dr. Seemann observes, "In a country where food is abundant,
clothing scarcely required, and property as a general rule in the
possession of the whole family rather than that of its head, children
need not wait for 'dead men's shoes' in order to become well off, and
we may, therefore, quite believe them when declaring that it is with
aching heart and at the repeated entreaties of their parents that they
are induced to commit {390} what we justly consider a crime."[41] The
ceremony is not without a touch of tragic grandeur:--"The son will
kiss and weep over his aged father as he prepares him for the grave,
and will exchange loving farewells with him as he heaps the earth
lightly over him."[42] One reason why the old Fijian so eagerly
desired to escape extreme infirmity was perhaps "the contempt which
attaches to physical weakness among a nation of warriors, and the
wrongs and insults which await those who are no longer able to protect
themselves"; but another, and as it seems more potent, motive was the
belief that persons enter upon the delights of the future life with
the same faculties, mental and physical, as they possess at the hour
of death, and that the spiritual life thus commences where the
corporeal existence terminates. "With these views," "says Dr. Hale,
"it is natural that they should desire to pass through this change
before their mental and bodily powers are so enfeebled by age as to
deprive them of their capacity for enjoyment."[43] Finally, we have to
observe that in many cases the old people are not only killed, but
eaten, by the nearest relatives, and that the motive, or at least, the
sole motive, for this procedure is not hunger or desire for human
flesh.[44] It is described as "an act of kindness" or as a "pious
ceremony," as a method of preventing the body from being eaten up by
worms or injured by enemies.[45] Considering that many cannibals have
an aversion to the bodies of men who have died a natural death, it is
not unreasonable to suppose that, in some instances, the old person is
killed for the purpose of being eaten, and that this is done with a
view to benefiting him.[46] But, on the other hand, the "pious
ceremony," like so many other funeral customs which are supposed to
comfort the dead, may be the survival of a practice which was
originally intended to promote the selfish interests of the living.

[Footnote 33: Morgan, _League of the Iroqnois_, p. 171.]

[Footnote 34: Dawson, _op. cit._ p. 62.]

[Footnote 35: Hahn, _op. cit._ p. 86.]

[Footnote 36: Tylor, 'Primitive Society,' in _Contemporary Review_,
xxi. 705. _Idem_, _Anthropology_, p. 410 _sq._]

[Footnote 37: Kolben, _op. cit._ i. 322.]

[Footnote 38: Hooper, _op. cit._ p. 188 _sq._ _Cf._ Sarytschew, _loc.
cit._ vi. 50; Dall, _op. cit._ p. 385; von Wrangell, _Expedition to
the Polar Sea_, p. 122.]

[Footnote 39: Catlin, _North American Indians_, i. 217.]

[Footnote 40: Codrington, _op. cit._ p. 347. Turner, _Samoa_, p. 335
_sq._ (Efatese).]

[Footnote 41: Seemann, _Viti_, p. 193.]

[Footnote 42: Fison and Howitt, _Kamilaroi and Kurnai_, p. 175.]

[Footnote 43: Hale, _op. cit._ p. 65. Williams and Calvert, _op. cit._
p. 156. See also Erskine, _Islands of the Western Pacific_, p. 248.]

[Footnote 44: For instances, see Steinmetz, _Endokannibalismus_,
_passim_.]

[Footnote 45: _Ibid._ pp. 3, 5, 17.]

[Footnote 46: _Cf._ Herodotus' statement regarding the Massagetae,
i. 216.]

{391} Closely connected with the custom of doing away with decrepit
parents is the habit, prevalent among certain peoples, of abandoning
or killing persons suffering from some illness.

"The white man," Mr. Ward observes, "can never, as long as he may
live in Africa, conquer his repugnance to the callous indifference to
suffering that he meets with everywhere in Arab and Negro. The dying
are left by the wayside to die. The weak drop on the caravan road, and
the caravan passes on."[47] Among the Kafirs instances are not rare in
which the dying are carried to the bush and left to perish, and among
some of them epileptics are cast over a precipice, or tied to a tree
to be devoured by hyenas.[48] The Hottentots abandon patients
suffering from small-pox.[49] The southern Tanàla in Madagascar take a
person who becomes insensible during an illness, to the spot in the
forest where they throw their dead, and should the unfortunate
creature so cast away revive and return to the village, they stone him
outright to death.[50] In New Caledonia "il est rare qu'un malade rend
naturellement le dernier soupir: quand il n'a plus sa connaissance,
souvent même avant son agonie, on lui ferme la bouche et les narines
pour l'étouffer, ou bien on le tiraille de tous côtés par les jambes
et par les bras."[51] In Kandavu, of the Fiji Group, sick persons were
often thrown into a cave, where the dead also were deposited.[52] In
Efate, if a person in sickness showed signs of delirium, his grave was
dug, and he was buried forthwith, to prevent the disease from
spreading to other members of the family.[53] The Alfura "kill their
sick when they have no hope of their recovery."[54] Dobrizhoffer says
of the Patagonians, "Actuated by an irrational kind of pity, they bury
the dying before they expire."[55] In cases of cholera or small-pox
epidemics, North American Indians have been known to desert their
villages, leaving all their sick behind, of whatever age or sex.[56]
According to Dr. Nansen, it is not inconsistent with the moral code of
the Greenlanders "to hasten the death of those {392} who are sick and
in great suffering, or of those in delirium, of which they have a
great horror."[57] Lieutenant Holm states that, in Eastern Greenland,
when an individual is seriously ill, he consents, if his relatives
request it, to end his sufferings by throwing himself into the sea;
whereas it is rare that a sick person is put to death, except in cases
of disordered intellect.[58] At Igloolik "a sick woman is frequently
built or blocked up in a snow-hut, and not a soul goes near to look in
and ascertain whether she be alive or dead."[59]

[Footnote 47: Ward, _Five Years with the Congo Cannibals_, p. 262.]

[Footnote 48: Shooter, _Kafirs of Natal_, p. 238 _sq._ Kidd, _The
Essential Kafir_, p. 247.]

[Footnote 49: Le Vaillant, _Travels into the Interior Parts of
Africa_, ii. 112.]

[Footnote 50: Sibree, _The Great African Island_, p. 291.]

[Footnote 51: Brainne, _op. cit._ p. 255.]

[Footnote 52: Williams and Calvert, _op. cit._ p. 159.]

[Footnote 53: Turner, _Samoa_, p. 336.]

[Footnote 54: Pfeiffer, _A Lady's Second Journey round the World_, i. 387.]

[Footnote 55: Dobrizhoffer, _Account of the Abipones_, ii. 262.]

[Footnote 56: Domenech, _op. cit._ ii. 326.]

[Footnote 57: Nansen, _Eskimo Life_, p. 163.]

[Footnote 58: 'East Greenland Eskimo,' in _Science_, vii. 172.]

[Footnote 59: Lyon, _Private Journal_, p. 357. For other instances,
see Sartori, in _Globus_, lxvii. nr. 7 _sq._; von Martius, _op. cit._
i. 126, 127, 393 (Brazilian tribes); Steller, _Beschreibung von dem
Lande Kamtschatka_, p. 354; Dawson, _op. cit._ p. 61, quoted _supra_,
p. 271.]

These and similar facts are largely explained by the pitiful condition
of the invalid, the hardships of a wandering life, and the
superstitious notions of ignorant men. In some cases the practice of
killing a dying person seems to be connected with a belief that the
death-blow will save his soul.[60] In 1812, a leper was burnt alive at
Katwa, near Calcutta, by his mother and sister, who believed that by
their doing so he would gain a pure body in the next birth.[61] By
carrying the patient away before he dies, the survivors escape the
supposed danger of touching a corpse.[62] In the poorer provinces of
the kingdom of Kandy, when a sick person was despaired of, the fear of
becoming defiled, or of being obliged to change their habitation,
frequently induced those about him to take him into a wood, in spite
of his cries and groans, and to leave him there, perhaps in the
agonies of death.[63] But the most common motive for abandoning or
destroying sick people seems to be fear of infection or of demoniacal
possession, which is regarded as the cause of various diseases.[64]
Among the North American Indians, we are told, "the custom of
abandoning the infirm or sick arose {393} from a superstitious fear of
the evil spirits which were supposed to have taken possession of
them."[65] In Tahiti, says Ellis, "every disease was supposed to be
the effect of direct supernatural agency, and to be inflicted by the
gods for some crime against the tabu, of which the sufferers had been
guilty, or in consequence of some offering made by an enemy to procure
their destruction. Hence, it is probable, in a great measure, resulted
their neglect and cruel treatment of their sick."[66]

[Footnote 60: Sartori, _loc. cit._ p. 127.]

[Footnote 61: Crooke, _Popular Religion and Folk-Lore of Northern
India_, ii. 169.]

[Footnote 62: Shooter, _op. cit._ 239 (Kafirs of Natal). Kidd, _The
Essential Kafir_, p. 247.]

[Footnote 63: Joinville, 'Religion and Manners of the People of
Ceylon,' in _Asiatick Researches_, vii. 437 _sq._]

[Footnote 64: See Sartori, _loc. cit._ p. 110 _sq._; Lippert,
_Kulturgeschichte der Menschheit_, i. 110; ii. 411.]

[Footnote 65: Dorman, _Origin of Primitive Superstitions_, p. 392.]

[Footnote 66: Ellis, _Polynesian Researches_, i. 395.]

       *       *       *       *       *

Whilst the regard which children owe their parents makes parricide an
aggravated form of murder, the paternal power sometimes implies that,
under certain circumstances, the father is allowed to kill even his
grown-up child. Though the Chinese Penal Code provides a slight
punishment for parents who punish disobedient children with death,[67]
the crime is practically ignored by the authorities.[68] Among the
Hebrews, in early times, a father might punish his incontinent
daughter with death.[69] The Roman house-father had _jus vitæ
necisque_--the power of life and death--over his children. However,
this power did not imply that he could kill them without a just
cause;[70] already in pagan times a father who killed his son
"latronis magis quam patris jure," was punished as a murderer.[71] As
Dean Milman observes, long before Christianity entered into Roman
legislation, "the life of a child was as sacred as that of the parent;
and Constantine, when he branded the murder of a son with the {394}
name of parricide, hardly advanced upon the dominant feeling.[72] Nor
is there any reason to suppose that, among savages, the father
possesses an absolute right of life and death over his children. On
the contrary, among many of the lower races the existence of such a
right is expressly denied.[73]

[Footnote 67: _Ta Tsing Leu Lee_, sec. cccxix. p. 347:--"If a father,
mother, paternal grandfather or grandmother, chastises a disobedient
child or grandchild in a severe and uncustomary manner, so that he or
she dies, the party so offending shall be punished with 100
blows.--When any of the aforesaid relations are guilty of killing such
disobedient child or grandchild designedly, the punishment shall be
extended to 60 blows and one year's banishment."]

[Footnote 68: Douglas, _Society in China_, p. 78 _sq._]

[Footnote 69: _Genesis_, xxxviii. 24.]

[Footnote 70: Mittermaier, 'Beyträge zur Lehre vom Verbrechen des
Kindesmordes,' in _Neues Archiv des Criminalrechts_, vii. 4. Walter,
_Geschichte des Römischen Rechts_, § 537, vol. ii. 147. von Jhering,
_Geist des römischen Rechts_, ii. 220. Mommsen, _Römisches
Strafrecht_, p. 619.]

[Footnote 71: _Digesta_, xlviii. 9. 5. Orosius, _Historiæ_, v. 16.
Mommsen, _Römisches Strafrecht_, p. 618.]

[Footnote 72: Milman, _History of Latin Christianity_, ii. 25.]

[Footnote 73: Lang, in Steinmetz, _Rechtsverhältnisse von eingeborenen
Völkern in Afrika und Ozeanien_, p. 224 (Washambala). Desoignies,
_ibid._ p. 271 (Msalala). Marx, _ibid._ p. 349 (Amahlubi). Kohler,
'Recht der Hottentotten,' in _Zeitschr. f. vergl. Rechtswiss._ xv.
347. Post, _Afrikanische Jurisprudenz_, i. 52 _sq._]

But whilst a father only in rare cases, and then merely as a measure
of justice, is allowed to put to death his grown-up child, he very
frequently has the right of destroying a new-born infant. Nay, in many
instances infanticide is not only permitted, but enjoined by custom.

Among a great number of uncivilised peoples it is usual to kill an
infant if it is a bastard,[74] or if its mother dies,[75] or if it is
deformed or diseased,[76] or if there is anything unusual or uncanny
about it, or if it for some reason or other is regarded as an unlucky
child. In some parts of {395} Africa, for instance, a child who is
born with teeth,[77] or who cuts the upper front teeth before the
under,[78] or whose teeth present some other kind of irregularity,[79]
is put to death. Among the natives of the Bondei country a child who
is born head first is considered an unlucky child, and is strangled in
consequence.[80] The Kamchadales used to destroy children who were
born in very stormy weather;[81] and in Madagascar infants born in
March or April, or in the last week of a month, or on a Wednesday or a
Friday, were exposed or drowned or buried alive.[82] Among various
savages it is the custom that, if a woman gives birth to twins, one or
both of them are destroyed.[83] They are regarded sometimes as an
indication of unfaithfulness on the part of the mother--in accordance
with the notion that one man cannot be the father of two children at
the same time[84]--sometimes as an evil portent or as the result of
the wrath of a fetish.[85] Miss Kingsley observes, "There is always
the sense of there being something uncanny regarding twins in West
Africa, and in those tribes where they are not killed they are
regarded {396} as requiring great care to prevent them from dying on
their own account."[86] The Kafirs believe that unless the father
places a lump of earth in the mouth of one of the babies he will lose
his strength.[87]

[Footnote 74: Turner, _Samoa_, p. 304 (Savage Islanders). Elton, in
_Jour. Anthr. Inst._ xvii. 93 (some Solomon Islanders). Munzinger,
_Ostafrikanische Studien_, p. 145 (Beduan). Dyveyrier, _Exploration du
Sahara_, p. 428 (Touareg). Burton, _Sindh_, p. 244 (Belochis).
Haberland, 'Der Kindermord als Volkssitte,' in _Globus_, xxxvii. 58.
The natives of Australia often kill half-caste children (Roth,
_Ethnological Studies among the North-West-Central Queensland
Aborigines_, p. 184. Curr, _Recollections of Squatting in Victoria_,
p. 252. Haberland, _loc. cit._ p. 58).]

[Footnote 75: Collins, _English Colony in New South Wales_, i. 607
_sq._ (aborigines of Port Jackson). Dale, 'Natives inhabiting the
Bondei Country,' in _Jour. Anthr. Inst._ xxv. 182. Comte de Cardi,
'Ju-Ju Laws and Customs in the Niger Delta,' _ibid._ xxix. 58. Nansen,
_First Crossing of Greenland_, ii. 330; Holm, 'Ethnologisk Skizze af
Angmagsalikerne,' in _Meddelelser om Grönland_, x. 91 (Greenlanders).
Haberland, _loc. cit._ p. 28 _sq._ Ploss, _Das Kind_, ii. 252, 254,
258 _sq._ Chamberlain, _Child and Childhood in Folk-Thought_,
p. 110 _sq._]

[Footnote 76: Dawson, _op. cit._ p. 39 (tribes of Western Victoria).
Kicherer, quoted by Moffat, _Missionary Labours and Scenes in Southern
Africa_, p. 15 (Bushmans). Shooter, _Kafirs of Natal_, p. 89. Chapman,
_Travels in the Interior of South Africa_, ii. 285 (Banamjua). Reade,
_Savage Africa_, p. 244 (Equatorial Africans). New, _Life, Wanderings,
and Labours in Eastern Africa_, p. 118; Krapf, _Travels_, p. 193 _sq._
(Wanika). Georgi, _Russia_, iii. 134 (Kamchadales). Sarytschew, _loc.
cit._ vi. 50; von Wrangell, _op. cit._ p. 122 (Chukchi). Simpson,
quoted by Murdoch, 'Point Barrow Expedition,' in _Ann. Rep. Bur.
Ethn._ ix. 417 (Eskimo). Powers, _Tribes of California_, p. 382
(Yokuts). Guinnard, _Three Years' Slavery among the Patagonians_, p.
144. Haberland, _loc. cit._ p. 58 _sq._ Ploss, _Das Kind_, ii. 252,
254, 255, 258.]

[Footnote 77: Ploss, _Das Kind_, ii. 257, 259.]

[Footnote 78: Livingstone, _Missionary Travels_, p. 577. Kingsley,
_Travels in West Africa_, p. 472. Allen and Thomson, _Expedition to
the River Niger_, i. 243 _sq._ Mockler-Ferryman, _British Nigeria_,
p. 286 (Ibos).]

[Footnote 79: Baumann, _Usambara_, pp. 131 (Wabondei), 237 (Wapare).]

[Footnote 80: Dale, in _Jour. Anthr. Inst._ xxv. 183.]

[Footnote 81: Krasheninnikoff, _History of Kamschatka_, p. 217.]

[Footnote 82: Ploss, _Das Kind_, ii. 257. _Cf._ Little, _Madagascar_,
p. 60.]

[Footnote 83: Dawson, _op. cit._ p. 39 (tribes of Western Victoria).
Spencer and Gillen, _Native Tribes of Central Australia_, p. 52.
_Idem_, _Northern Tribes of Central Australia_, p. 609. Romilly,
_Western Pacific_, p. 70 (Solomon Islanders). Kolben, _op. cit._ i.
144 (Hottentots). Shooter, _op. cit._ p. 88 (Kafirs of Natal).
Livingstone, _Missionary Travels_, p. 577. Decle, _Three Years in
Savage Africa_, p. 160 (Matabele). Chapman, _op. cit._ ii. 285
(Banamjua). Baumann, _Usambara_, p. 131 (Wabondei). New, _op. cit._
pp. 118 (Wanika, formerly), 458 (Wadshagga). Burton, _Two Trips to
Gorilla Land_, i. 84. Kingsley, _Travels in West Africa_, p. 472
_sqq._ Schoen and Crowther, _Journals_, p. 49 (Ibos on the Niger).
Comte de Cardi, in _Jour. Anthr. Inst._ xxix. 57 _sq._ (Negroes of the
Niger Delta). Nyendael, quoted by Ling Roth, _Great Benin_, p. 35
(people of Arebo). Ploss, _Das Kind_, ii. 267 _sq._ (African peoples),
274 (some South American Indians). Schneider, _Die Naturvölker_, i.
305 _sq._ (some South American Indians). Krasheninnikoff, _op. cit._
p. 217 (Kamchadales).]

[Footnote 84: Waitz, _Anthropologie der Naturvölker_, iii. 394, 480
(South American Indians). Dapper says (_Africa_, p. 473) that no twins
are ever found in the country of Benin, because the people considered
it a great dishonour to give birth to twins.]

[Footnote 85: Allen and Thomson, _op. cit._ i. 243. Baumann,
_Usambara_, p. 131 (Wabondei).]

[Footnote 86: Kingsley, _Travels in West Africa_, p. 473, According to
Nyendael, twin-births are, on the contrary, esteemed good omens in
most parts of the Benin territory (Ling Roth, _Great Benin_, p.
35).]

[Footnote 87: Kidd, _The Essential Kafir_, p. 202.]

In the instances just referred to, the infant is killed either
because, after the death of its mother, there is nobody to nurse it,
or on account of the fault of its parents, especially the mother, or
because it is held desirable that the sickly or defective should die
at once, or out of superstitious fear. However, among many of the
lower races, infanticide is not restricted to similar more or less
exceptional cases, but is practised on a much larger scale. Custom
often decides how many children are to be reared in each family, and
not infrequently the majority of infants are destroyed.

Infanticide is common among various tribes in North and South
America.[88] Dobrizhoffer says that it was a rare exception among the
Abipones to find a woman who had brought up two or three sons, whilst
some mothers killed all the children they bore, "no one either
preventing or avenging these murders."[89] According to Azara, the
Guanas buried alive the majority of their female infants, and the
Mbayas suffered only one boy or one girl in a family to live;[90] but
the correctness of his statements has been questioned.[91] On the
other hand there can be no doubt as to the extreme prevalence of
infanticide in the islands of the South Seas. In some of the principal
groups of Polynesia it was practised publicly and systematically,
without compunction, to an extent almost incredible. During the whole
period of his residence in the Society Islands, Ellis does {397} not
recollect having met with a single pagan woman who had not imbrued her
hands in the blood of her offspring, and he thinks that there, as also
in the Sandwich Islands, two-thirds of the children were destroyed by
their parents.[92] "No sense of irresolution or horror," he says,
"appeared to exist in the bosoms of those parents who deliberately
resolved on the deed before the child was born. They often visited the
dwellings of the foreigners, and spoke with perfect complacency of
their cruel purpose"; and when the missionaries tried to dissuade them
from executing their intention, the only answer generally received was
that it was the custom of the country.[93] The Line Islanders allowed
only four children of a family to get the chance of life; the mother
had a right to rear one child, whereas it rested with the husband to
decide whether any more should live.[94] In Radack every mother was
permitted to bring up three children, but the fourth and every
succeeding one she was obliged to bury alive herself, unless she was
the wife of a chief.[95] In Vaitupu, of the Ellice Archipelago, also,
"infanticide was ordered by law," and only two children were allowed
to a family.[96] In New Zealand and the Marquesas infanticide, though
not so general, was yet of frequent occurrence and not regarded as a
crime.[97] In most of the Melanesian groups it was very common.[98] In
the Solomon Islands there still seem to be several places where it is
the custom to kill nearly all children soon after they are born, and
to buy other children from foreign tribes, good care being taken not
to buy them too young.[99] The practice of infanticide occurred at
least occasionally in Tasmania,[100] and, as it seems, almost
universally in Australia. Mr. Curr supposes that the Australian woman,
as a rule, reared only two boys and one girl, the rest of her children
being destroyed.[101] "In the laws known to her," says Mr. Brough
Smyth, "infanticide is a necessary practice, and one which, if
disregarded, would, under certain circumstances, be disapproved {398}
of; and the disapproval would be marked by punishment."[102] Mr.
Taplin was assured that, among the Narrinyeri, more than one-half of
the children born fell victims to this custom;[103] and in the
Dieyerie tribe hardly an old woman, if questioned, but will admit of
having destroyed from two to four of her offspring.[104]

[Footnote 88: Bessels, quoted by Murdoch, 'Point Barrow Expedition,'
in _Ann. Rep. Bur. Ethn._ ix. 417 (Eskimo of Smith Sound). Nelson,
'Eskimo about Bering Strait,' _ibid._ xviii. 289. Gibbs, 'Tribes of
Western Washington and Northwestern Oregon,' in _Contributions to
North American Ethnology_, i. 198. Powers, _op. cit._ pp. 177, 184
(Californian tribes). Yarrow, in _Ann. Rep. Bur. Ethn._ i. 99 (Pimas
of Arizona), Hawtrey, in _Jour. Anthr. Inst._ xxxi. 295 (Lengua
Indians of the Paraguayan Chaco).]

[Footnote 89: Dobrizhoffer, _op. cit._ ii. 98. For another account of
the infanticides of the Abipones, see _infra_, p. 400.]

[Footnote 90: Azara, _Voyages dans l'Amérique méridionale_, ii. 93, 115.]

[Footnote 91: Wied-Neuwied, _Reise nach Brasilien_, ii. 39.]

[Footnote 92: Ellis, _Polynesian Researches_, i. 252. _Idem_, _Tour
through Hawaii_, p. 325.]

[Footnote 93: _Idem_, _Polynesian Researches_, i. 250.]

[Footnote 94: Tutuila, 'Line Islanders,' in _Jour. Polynesian
Society_, i. 267.]

[Footnote 95: von Kotzebue, _Voyage of Discovery_, iii. 173.]

[Footnote 96: Turner, _Samoa_, p. 284.]

[Footnote 97: Hale, _U.S. Exploring Expedition. Vol. VI. Ethnography
and Philology_, p. 15.]

[Footnote 98: Codrington, _Melanesians_, p. 229. Turner, _Samoa_, p.
333 (Efatese). Gill, _Life in the Southern Isles_, p. 213 (islands of
Torres Straits). Atkinson, in _Folk-Lore_, xiv. 248 (New
Caledonians).]

[Footnote 99: Romilly, _Western Pacific_, p. 68 _sq._ _Cf._ Guppy,
_Solomon Islands_, p. 42.]

[Footnote 100: Ling Roth, _Aborigines of Tasmania_, p. 167 _sq._
Bonwick, _Daily Life and Origin of the Tasmanians_, p. 85. Brough
Smyth, _Aborigines of Victoria_, ii. 386.]

[Footnote 101: Curr, _The Australian Race_, i. 70.]

[Footnote 102: Brough Smyth, _op. cit._ i. p. xxi. _Cf._ Oberländer,
'Die Eingeborenen der Kolonie Victoria,' in _Globus_, iv. 279.]

[Footnote 103: Taplin, 'Narrinyeri,' in Woods, _Native Tribes of South
Australia_, p. 13.]

[Footnote 104: Gason, 'Manners and Customs of the Dieyerie Tribe,'
_ibid._ p. 259.]

Among the Todas of India, up to the period of Mr. Sullivan's visit
to their hills, about the year 1820, only one female child was allowed
to live in each family.[105] With reference to the Kandhs, or Khonds,
Macpherson observes, "The practice of female infanticide is, I
believe, not wholly unknown amongst any portion of the Khond people,
while it exists in some of the tribes of the sect of Boora to such an
extent, that no female infant is spared, except when a woman's first
child is a female, and that villages containing a hundred houses may
be seen without a female child."[106]

[Footnote 105: Metz, _Tribes inhabiting the Neilgherry Hills_, p. 16.]

[Footnote 106: Macpherson, _Memorials of Service in India_, p. 132.]

It is said that among the Guanches of the Canary Islands, in
ancient times, all children, except the first-born, were killed.[107]
The people of Madagascar frequently practised infanticide; but Ellis
says that they were much less addicted to it than the South Sea
Islanders, a numerous offspring being generally a source of much
satisfaction.[108] According to Kolben, infanticide was common among
the Hottentots;[109] whereas Sparrman only states that "the Hottentots
are accustomed to inter, in case of the mother's death, children at
the breast alive,"[110] and Le Vaillant altogether denies the
existence of customary infanticide among them.[111] Among the Swahili,
according to Baumann, infanticides are very common and hardly
disapproved of.[112] But the peoples of the African continent are not
generally addicted to infanticide, except in such special cases as
have already come under our notice.

[Footnote 107: Ploss, _Das Kind_, ii. 259 _sq._]

[Footnote 108: Little, _Madagascar_, p. 60. Ellis, _History of
Madagascar_, i. 155, 160.]

[Footnote 109: Kolben, _op. cit._ i. 333.]

[Footnote 110: Sparrman, _Voyage to the Cape of Good Hope_, i. 358 _sq._]

[Footnote 111: Le Vaillant, _op. cit._ ii. 58 _sqq._]

[Footnote 112: Baumann, _Usambara_, p. 42.]

The custom of infanticide, in its extensive form, has been attributed
to various motives. Among some peoples mothers are said to kill their
new-born infants on account {399} of the trouble of rearing them,[113]
or the consequent loss of beauty.[114] Another cause is the long
suckling time, generally lasting, among savages, for two, three, four
years, or even more, owing to want of soft food and animal milk.[115]
When, as is very commonly the case, the husband must not cohabit with
his wife during the whole of this period,[116] he is naturally
inclined to form other connections, and this seems in some instances
to induce the mother to destroy her child.[117] In another respect,
also, the long suckling-time is an inducement to infanticide; among
certain Australian tribes an infant is killed immediately on birth
"when the mother is, or thinks she is, unable to rear it owing to
there being a young child whom she is still feeding."[118] Among the
Pimas of Arizona, again, infanticide is said to be connected with the
custom of destroying all the property of the husband when he dies.
"The women of the tribe, well aware that they will be poor should
their husbands die, and that then they will have to provide for their
children by their own exertions, do not care to have many children,
and infanticide, both before and after birth, prevails to a great
extent. This is not considered a crime."[119] But there can be little
doubt that the wholesale infanticide of many of the lower races is in
the main due to the hardships of savage life. The helpless infant may
be a great burden to the parents both in times of peace and in times
of war. It may prevent the mother from following her husband about on
his wanderings in search of food, or otherwise encumber her in her
work.[120] Mr. Curr states of the Bangerang tribe of Victoria, with
whom he was intimate for ten years, that their habit of killing nearly
half {400} of the children born resulted "principally from the
difficulty, if not the impossibility, of transporting several children
of tender age from place to place on their frequent marches."[121]
Concerning the Abipones, Charlevoix observes:--"They seldom rear but
one child of each sex, murdering the rest as fast as they come into
the world, till the eldest are strong enough to walk alone. They think
to justify this cruelty by saying that, as they are almost constantly
travelling from one place to another, it is impossible for them to
take care of more infants than two at a time; one to be carried by the
father, and the other by the mother."[122] Among the Lenguas of the
Paraguayan Chaco an interval of seven or eight years is always
observable between children of the same family, infants born in this
interval being immediately killed. The reasons for this practice, says
Mr. Hawtrey, are obvious. "The woman has the hard work of carrying
food from garden and field, and all the transport to do; the Lenguas
are a nomadic race, and their frequent moves often entail journeys of
from ten to twenty miles a day. . . . Travelling with natives under
these circumstances, one is forced to the conclusion that it would be
impossible for a mother to have more than one young child to carry and
to care for."[123] Moreover, a little forethought tells the parents
that their child before long will become a consumer of provisions
perhaps already too scanty for the family. Savages often suffer
greatly from want of food, and may have to choose between destroying
their offspring or famishing themselves. Hence they often have
recourse to infanticide as a means of saving their lives; indeed,
among several tribes, in case of famine, children are not only killed,
but eaten.[124] Urgent want is frequently represented by our
authorities as the main cause of infanticide;[125] and {401} their
statements are corroborated by the conspicuous prevalence of this
custom among poor tribes and in islands whose inhabitants are confined
to a narrow territory with limited resources.

[Footnote 113: Ellis, _Polynesian Researches_, i. 256 (Tahitians).
_Idem_, _Tour through Hawaii_, p. 327. Polack, _Manners and Customs of
the New Zealanders_, ii. 92. Gason, _loc. cit._ p. 258 (Dieyerie
tribe).]

[Footnote 114: Williams, _Missionary Enterprises_, p. 565
(Tahitians).]

[Footnote 115: See Westermarck, _History of Human Marriage_, p. 484.]

[Footnote 116: _Ibid._ p. 483.]

[Footnote 117: Schneider, _Die Naturvölker_, i. 297, 307.]

[Footnote 118: Spencer and Gillen, _Native Tribes of Central
Australia_, pp. 51, 264. _Idem_, _Northern Tribes of Central
Australia_, p. 608. Oberländer, _loc. cit._ p. 279.]

[Footnote 119: Yarrow, _loc. cit._ p. 99.]

[Footnote 120: Turner, _Nineteen Years in Polynesia_, p. 394 (people
of Vaté, New Hebrides). Polack, _op. cit._ ii. 93 (Maoris).]

[Footnote 121: Curr, _Squatting in Victoria_, p. 252. Oberländer,
_loc. cit._ p. 279. _Cf._ Fison and Howitt, _Kamilaroi and Kurnai_, p.
259; Fraser, _Aborigines of New South Wales_, p. 5.]

[Footnote 122: Charlevoix, _History of Paraguay_, i. 405.]

[Footnote 123: Hawtrey, in _Jour. Anthr. Inst._ xxxi. 295.]

[Footnote 124: See Steinmetz, _Endokannibalismus_, pp. 8, 13, 14, 17.]

[Footnote 125: Nansen, _First Crossing of Greenland_, ii. 330. Nelson,
in _Ann. Rep. Bur. Ethn._ xviii. 289 (Eskimo about Behring Strait).
Brough Smyth, _op. cit._ i. 53; ii. 386 (aboriginal tribes of
Australia and Tasmania), von Kotzebue, _op. cit._ iii. 173 (natives of
Radack). Tutuila, in. _Jour. Polynesian Soc._ i. 263 (Line Islanders).
Campbell, _Wild Tribes of Khondistan_, p. 140 (Kandbs of Sooradah).
Marshall, _A Phrenologist amongst the Todas_, p. 194. Kolben, _op.
cit._ i. 144 (Hottentots). See also Haberland, _loc. cit._ p. 26;
Dimitroff, _Die Geringschätzung des menschlichen Lebens und ihre
Ursachen bei den Naturvölkern_, p. 162 _sqq._; Sutherland, _Origin
and Growth of the Moral Instinct_, i. 115 _sqq._]

In the chapter dealing with human sacrifice we shall notice that
infanticide is in some cases practised as a sacrificial rite. In other
cases infants are killed for medicinal purposes, without being
sacrificed to any divine being.[126] Thus in the Luritcha tribe, in
Central Australia, "it is not an infrequent custom, when a child is in
weak health, to kill a younger and healthy one and then to feed the
weakling on its flesh, the idea being that this will give to the weak
child the strength of the stronger one."[127] A curious motive for
female infanticide is also worth mentioning. That the victims of this
practice are most commonly, among several peoples almost exclusively,
females,[128] is generally due to the greater usefulness of the men
both as food-providers and in war. But the Hakka, a Mongolian tribe in
China, often put their girls to a cruel death with a view to inducing
thereby the soul to appear the next time in the shape of a
boy.[129]

[Footnote 126: See _infra_, p. 458 _sq._]

[Footnote 127: Spencer and Gillen, _Native Tribes of Central
Australia_, p. 475. _Cf._ _ibid._ p. 52.]

[Footnote 128: _Cf._ Haberland, _loc. cit._ p. 56 _sqq._]

[Footnote 129: Hubrig, quoted by Ploss, _Das Kind_, ii. 263.]

Thus various considerations have led men to destroy their own
offspring. Under certain circumstances the advantages, real or
imaginary, assumed to result from the deed have been sufficiently
great to silence the voice of parental love, which, as will be seen,
is to be found even in the bosom of a savage father. The resistance
offered by this instinct would be so much the less as the child is
killed immediately after its birth, at a period of its life {402} when
the father's affection for it is as yet only dawning Even where, at
first, infanticide was an exception, practised by a few members of the
tribe, any interference from the side of the community may have been
prevented by the notion that a person possesses proprietary rights
over his offspring; and, once become habitual, infanticide easily grew
into a regular custom. In cases where it was found useful to the
tribe, it would be enforced as a public duty; and even where there no
longer was any need for it, owing to changed conditions of life, the
force of habit might still keep the old custom alive.

Though infanticide is thus regarded as allowable, or even obligatory,
among many of the lower races, we must not suppose that they
universally look upon it in this light. Mr. McLennan grossly
exaggerated its prevalence when he asserted that female infanticide is
"common among savages everywhere."[130] Among a great number of them
it is said to be unheard of or almost so,[131] and to these belong
peoples of so low a type as the Andaman Islanders,[132] the
Botocudos,[133] and certain Californian tribes.[134] The Veddahs of
Ceylon have never been known to practise it.[135] Among the Yahgans of
Tierra del Fuego, Mr. Bridges informs me, it occurred only
occasionally, and then it was almost always the deed of the mother,
who acted from "jealousy, or hatred of her husband, or because of
desertion and wretchedness."[136] Mr. Fison, who has lived for a long
time among uncivilised races, thinks it will be found that infanticide
is far less common among the lower savages than it is among the more
advanced tribes.[137] Considering {403} further that the custom of
infanticide, being opposed to the instinct of parental love,
presupposes a certain amount of reasoning or forethought, it seems
probable that, where it occurs, it is not a survival of earliest
savagery, but has grown up under specific conditions in later stages
of development.[138] It is, for instance, very generally asserted that
certain Indians in California never committed infanticide before the
arrival of the whites;[139] and Ellis thinks there is every reason to
suppose that this custom was practised less extensively by the
Polynesians during the early periods of their history than it was
afterwards.[140]

[Footnote 130: McLennan, _Studies in Ancient History_, p. 75.]

[Footnote 131: See Westermarck, _History of Human Marriage_, p. 312
_sq._; and, besides the authorities there referred to, Dorsey, 'Omaha
Sociology,' in _Ann. Rep. Bur. Ethn._ iii. 369; Kirke, _Twenty-five
Years in British Guiana_, p. 160; Chalmers, _Pioneering in New
Guinea_, p. 163; Hodgson, _Miscellaneous Essays_, p. 123 (Bódo and
Dhimáls); Baumann, _Durch Massailand zur Nilquelle_, p. 161
(Masai).]

[Footnote 132: Man, in _Jour. Anthr. Inst._ xii. 329.]

[Footnote 133: Wied-Neuwied, _op. cit._ ii. 39. Keane, in _Jour.
Anthr. Inst._ xiii. 206.]

[Footnote 134: Powers, _op. cit._ pp. 192, 271, 382.]

[Footnote 135: Sarasin, _Ergebnisse naturwissenschaftlicher
Forschungen auf Ceylon_, iii. 469, 539.]

[Footnote 136: Bridges, in a letter dated Downeast, Tierra del Fuego,
August 28th, 1888.]

[Footnote 137: Fison and Howitt, _Kamilaroi and Kurnai_, p. 134 _sqq._
_Cf._ Farrer, _Primitive Manners and Customs_, p. 224; Sutherland,
_op. cit._ i. 114 _sq._]

[Footnote 138: _Cf._ Darwin, _Descent of Man_, p. 594.]

[Footnote 139: Powers, _op. cit._ p. 207. _Cf._ _ibid._ p. 183.]

[Footnote 140: Ellis, _Polynesian Researches_, i. 249.]

Where infanticide is not sanctioned by custom, the occasional
commission of it has a tendency to call forth disapproval or excite
horror. The Blackfeet are said to believe that women who have been
guilty of this crime will never reach the happy mountain after death,
but are compelled to hover round the seats of their crimes, with
branches of trees tied to their legs.[141] Speaking of another North
American tribe, the Potawatomis, Keating observes:--"In a few
instances, it is said that children born deformed have been destroyed
by their mothers, but these instances are rare, and whenever
discovered, uniformly bring them into disrepute, and are not
unfrequently punished by some of the near relations. Independently of
these cases, which are but rare, a few instances of infanticide, by
single women, in order to conceal intrigue, have been heard of; but
they are always treated with abhorrence."[142] Among the Omahas
"parents had no right to put their children to death."[143] The Aleuts
believed that a child-murder would bring misfortune on the whole
village.[144] The Brazilian Macusis[145] and Botocudos[146] look upon
the deed with horror. At Ulea, {404} of the Caroline Islands, "the
prince would have the unnatural mother punished with death."[147] So,
too, Herr Valdau tells us of a Bakundu woman who, accused of
infanticide, was condemned to death.[148] In Ashanti a man is punished
for the murder of his child.[149] Among the Gaika tribe, of the
Kafirs, the killing of a child after birth is punishable as murder,
the fine going to the chief.[150] Nay, even peoples among whom
infanticide is habitual seem now and then to have a feeling that the
act is not quite correct. Mr. Brough Smyth asserts that the Australian
Black is himself ashamed of it;[151] and Mr. Curr has no doubt that he
feels, in the commencement of his career at least, that infanticide is
wrong, as also that its committal brings remorse.[152]

[Footnote 141: Richardson, in Franklin, _Journey to the Shores of the
Polar Sea_, p. 77.]

[Footnote 142: Keating, _op. cit._ i. 99.]

[Footnote 143: Dorsey, in _Ann. Rep. Bur. Ethn._ iii. 268.]

[Footnote 144: Dall, _op. cit._ p. 399.]

[Footnote 145: Waitz, _op. cit._ iii. 391.]

[Footnote 146: Wied-Neuwied, _op. cit._ ii. 39.]

[Footnote 147: von Kotzebue, _op. cit._ iii. 211.]

[Footnote 148: Valdau, in _Ymer_, v. 280.]

[Footnote 149: Bowdich, _Mission from Cape Coast Castle to Ashantee_,
p. 258.]

[Footnote 150: Maclean, _Compendium of Kafir Laws and Customs_, p. 111.]

[Footnote 151: Brough Smyth, _op. cit._ i. 54.]

[Footnote 152: Curr, _The Australian Race_, i. 100.]

The custom of infanticide in most cases requires that the child should
be killed immediately or soon after its birth. Among certain North
American Indians "the right of destroying a child lasted only till it
was a month old," after which time the feeling of the tribe was
against its death.[153] Ellis says of the Society Islanders:--"The
horrid act, if not committed at the time the infant entered the world,
was not perpetrated at any subsequent period . . . . If the little
stranger was, from irresolution, the mingled emotions that struggled
for mastery in its mother's bosom, or any other cause, suffered to
live ten minutes or half an hour, it was safe; instead of a monster's
grasp, it received a mother's caress and a mother's smile, and was
afterwards nursed with solicitude and tenderness."[154] Almost the
same is said of other South Sea Islanders[155] and of tribes
inhabiting the Australian continent.[156] That the custom of
infanticide is generally {405} restricted to the destruction of
new-born babies also appears from various statements as to the
parental love of those peoples who are addicted to this practice.[157]
In Fiji "such children as are allowed to live are treated with a
foolish fondness."[158] Among the Narrinyeri, "only let it be
determined that an infant's life shall be saved, and there are no
bounds to the fondness and indulgence with which it is treated";[159]
and with reference to other Australian tribes we are told that it is
brought up with greater care than generally falls to the lot of
children belonging to the poorer classes in Europe.[160] Among the
Indians of the Pampas and other Indians of that neighbourhood, who
abandon deformed or sickly-looking children to the wild dogs and birds
of prey, an infant becomes, from the moment it is considered worthy to
live, "the object of the whole love of its parents, who, if necessary,
will submit themselves to the greatest privations to satisfy its least
wants or exactions."[161] In Madagascar, according to Ellis, "nothing
can exceed the affection with which the infant is treated by its
parents and other members of the family; the indulgence is more
frequently carried to excess than otherwise."[162] From these and
similar facts, as also from the general absence of statements to the
contrary, I conclude that murders of children who have been allowed to
survive their earliest infancy are very rare, though not quite
unknown,[163] among the lower races.

[Footnote 153: Schoolcraft, quoted by Sutherland, _op. cit._ i. 119.]

[Footnote 154: Ellis, _Polynesian Researches_, i. 255.]

[Footnote 155: Waitz-Gerland, _op. cit._ vi. 138, 139, 638. Angas,
_Savage Life and Scenes in Australia and New Zealand_, i. 313.]

[Footnote 156: Ploss, _Das Kind_, ii. 255. Spencer and Gillen, _Native
Tribes of Central Australia_, p. 51. _Iidem_, _Northern Tribes of
Central Australia_, p. 608.]

[Footnote 157: See _infra_, p. 529 _sqq._; also Haberland, _loc. cit._
p. 29, and Sutherland, _op. cit._ i. 115 _sqq._]

[Footnote 158: Williams and Calvert, _op. cit._ p. 142.]

[Footnote 159: Taplin, in Woods, _Native Tribes of South Australia_,
p. 15.]

[Footnote 160: Brough Smyth, _op. cit._ i. 51. Meyer, 'Manners and
Customs of the Aborigines of the Encounter Bay Tribe,' in Woods,
_Native Tribes of South Australia_, p. 186.]

[Footnote 161: Guinnard, _op. cit._ p. 144.]

[Footnote 162: Ellis, _History of Madagascar_, i. 161.]

[Footnote 163: Among the Sandwich Islanders "the infant, after living
a week, a month, or even a year, was still insecure, as some were
destroyed when able to walk" (Ellis, _Tour through Hawaii_, p. 325).
Among the Eskimo about Behring Strait, "girls were often killed when
from 4 to 6 years of age" (Nelson, in _Ann. Rep. Bur. Ethn._
xviii. 289).]

The custom of infanticide prevails, or has prevailed, not only in the
savage world, but among semi-civilised and {406} civilised races. In
the poorest districts of China female infants are often destroyed by
their parents immediately after their birth, chiefly on account of
poverty.[164] Though disapproved of by educated Chinese, the practice
is treated with forbearance or indifference by the mass of the people,
and is acquiesced in by the mandarins.[165] "When seriously appealed
to on the subject," says the Rev. J. Doolittle, "though all deprecate
it as contrary to the dictates of reason and the instincts of nature,
many are ready boldly to apologise for it, and declare it to be
necessary, especially in the families of the excessively poor."[166]
However, infanticide is neither directly sanctioned by the government,
nor agreeable to the general spirit of the laws and institutions of
the Empire;[167] and it is prohibited both by Buddhism and
Taouism.[168] According to Dr. de Groot, the belief that the spirits
of the dead may, with authorisation of Heaven, take vengeance on the
living, has a very salutary effect on female infanticide in China.
"The fear that the souls of the murdered little ones may bring
misfortune, induces many a father or mother to lay the girls they are
unwilling to bring up in the street for adoption into some family, or
into a foundling-hospital."[169]

[Footnote 164: Gutzlaff, _Sketch of Chinese History_, i. 59. Wells
Williams, _Middle Kingdom_, ii. 240 _sqq._ Douglas, _Society in
China_, p. 354 _sqq._ Doolittle, _Social Life of the Chinese_, ii. 206.]

[Footnote 165: Doolittle, _op. cit._ ii. 203, 208 _sq._ Wells
Williams, _op. cit._ i. 836; ii. 242. Douglas, _Society in China_, p.
354. Ploss, _Das Kind_, ii. 262.]

[Footnote 166: Doolittle, _op. cit._ ii. 208.]

[Footnote 167: Staunton, in his translation of _Ta Tsing Leu Lee_,
p. 347 n. *]

[Footnote 168: _Thâi Shang_, 4. Giles, _Strange Stories from a Chinese
Studio_, ii. 377. Douglas, _Confucianism and Taouism_, p. 267.
_Indo-Chinese Gleaner_, iii. 164.]

[Footnote 169: de Groot, _Religions System of China_, (vol. iv. book)
ii. 457 _sqq._]

In ancient times the Semites, or at least some of them, not only
practised infanticide, but, under certain circumstances, approved of
it or regarded it as a duty. According to an ancient Arabic proverb,
it was a generous deed to bury a female child;[170] and we read of
[(]O[s.]aim the Fazarite who did not dare to save alive his daughter
Lacî[t.]a, without concealing her from the people, although she was
his only child.[171] Considering that among the {407} nomads of
Arabia, who suffer constantly from hunger during a great part of the
year, a daughter is a burden to the poor, we may suppose, with
Professor Robertson Smith, that "infanticide was as natural to them as
to other savage peoples in the hard struggle for life."[172] It was
condemned, however, by the Prophet:--"Slay not your children for fear
of poverty: we will provide for them; beware! for to slay them is ever
a great sin."[173] In the Mosaic Law, on the other hand, infanticide
is never touched upon, and, in all probability, it hardly occurred
among the Hebrews in historic times. But we have reason to believe
that, at an earlier period, among them as also among other branches of
the Semitic race, child-murder was frequently practised as a
sacrificial rite.[174]

[Footnote 170: Freytag, _Arabum Proverbia_, i. 229.]

[Footnote 171: Robertson Smith, _Kinship and Marriage in Early
Arabia_, p. 293.]

[Footnote 172: _Ibid._ p. 294.]

[Footnote 173: _Koran_, xvii. 33; also, _ibid._ vi. 141, 152, and
lxxxi. 8 _sq._]

[Footnote 174: See _infra_, on Human Sacrifice.]

The murder of female infants, whether by the direct employment of
homicidal means, or by exposure to privation and neglect, has for ages
been a common practice, or even a genuine custom, among various Hindu
castes.[175] Yet they are well aware that it is prohibited by their
sacred books; according to the Laws of Manu, the King shall put to
death "those who slay women, infants, or Brâhmanas."[176] Even the
Rajputs, who--out of family pride and owing to the expenses connected
with the marriage ceremony--were particularly addicted to infanticide,
considered that a family in which such a deed had been perpetrated
was, in consequence, an object of divine displeasure. On the twelfth
day, therefore, the family priest was sent for, and, by suitable
gratuities, absolution was obtained. In the room where the infant was
born and destroyed, he also prepared and ate some food with which the
family provided him; this was considered a _hom_, or burnt offering,
and, by eating it in that place, the priest was supposed to take the
whole _hutteea_, or sin, upon himself, and to cleanse the family from
it.[177]

[Footnote 175: Wilkins, _Modern Hinduism_, 431. Chevers, _Manual of
Medical Jurisprudence for India_, p. 750 _sqq._]

[Footnote 176: _Laws of Manu_, ix. 232.]

[Footnote 177: 'Oude as it was before the Annexation,' in _Church
Missionary Intelligencer_, xi. 81 _sq._]

{408} Exposure of new-born children was practised by the people of the
Vedic age,[178] as also by other so-called Aryan peoples in ancient
times.[179] The Teutonic father had to decide whether the child,
whilst still lying on the ground, should be accepted as a member of
the family, or whether it should be exposed. If he lifted it up, and
some water was poured over it, or a drop of milk or honey passed its
lips, it was generally safe. But apart from these restrictions, custom
seems to have been in favour of exposure only under certain
circumstances, exactly similar to those in which infanticide is
practised among many modern savages: if the child was born out of
wedlock, or if it was deformed or sickly, or if it was born on an
unlucky day, or in case of twins--one of whom was always supposed to
be illegitimate--or if the parents were very poor. The exposed infant,
however, was not necessarily destined to die, but was, in many cases,
adopted by somebody who could afford to rear it.[180]

[Footnote 178: Kaegi, _Rigveda_, p. 16.]

[Footnote 179: Strieker, 'Ethnographische Notizen über den Kindermord
und die künstliche Fruchtabtreibung,' in _Archiv für Anthropologie_,
v. 451 (Celts and Slavs).]

[Footnote 180: Grimm, _Deutsche Rechtsalterthümer_, p. 455 _sq._
Wilda, _Strafrecht der Germanen_, pp. 704, 725. Maurer, _Bekehrung des
Norwegischen Stammes_ ii. 181. Weinhold, _Altnordisches Leben_, p.
261. Nordström, _Bidrag till den svenska samhälls-författningens
historia_, ii. 44. Stemann, _Den danske Retshistorie indtil Christian
V.'s Lov_, p. 359.]

The exposure of deformed or sickly infants was undoubtedly an ancient
custom in Greece; in Sparta, at least, it was enjoined by law. It was
also approved of by the most enlightened among the Greek philosophers.
Plato condemns all those children who are imperfect in limbs, as also
those who are born from depraved citizens, to be buried in some
obscure and unknown place; he maintains, moreover, that when both
sexes have passed the age assigned for presenting children to the
State, no child is to be brought to light, and that any infant which
is by accident born alive, shall be done away with.[181] Aristotle not
only lays down the law with respect to the exposing or bringing up of
children, that "nothing imperfect or maimed shall be brought up," but
proposes that {409} the number of children allowed to each marriage
shall be regulated by the State, and that, if any woman be pregnant
after she has produced the prescribed number, an abortion shall be
procured before the fetus has life.[182] These views were in perfect
harmony with the general tendency of the Greeks to subordinate the
feelings of the individual to the interest of the State. Confined as
they were to a very limited territory, they were naturally afraid of
being burdened with the maintenance of persons whose lives could be of
no use. It is necessary, says Aristotle, to take care that the
increase of the people should not exceed a certain number, in order to
avoid poverty and its concomitants, sedition and other evils.[183] Yet
the exposure of healthy infants, which was frequently practised in
Greece, was hardly approved of by public opinion, although
tolerated,[184] except at Thebes, where it was a crime punishable with
death.[185]

[Footnote 181: Plato, _Respublica_, v. 460 _sq._]

[Footnote 182: Aristotle, _Politica_, vii. 16, p. 1335.]

[Footnote 183: _Ibid._ ii. 6, p. 1265.]

[Footnote 184: Schmidt, _Ethik der alten Griechen_, ii. 138, 463.
Hermann-Blumner, _Lehrbuch der griechischen Privatalterthümer_, p. 77.]

[Footnote 185: Aelian, _Varia Historiæ_, ii. 7.]

In Rome custom or law enjoined the destruction of deformed infants.
According to a law of the Twelve Tables, referred to by Cicero,
monstrous abortions were not suffered to live.[186] With reference to
a much later period Seneca writes, "We destroy monstrous births, and
we also drown our children if they are born weakly or unnaturally
formed"; he adds that it is an act of reason thus to separate what is
useless from what is sound.[187] But there was no tendency in Rome to
encourage infanticide beyond these limits. It has been observed that,
whilst the Greek policy was rather to restrain, the Roman policy was
always to encourage, population.[188] Being engaged in incessant wars
of conquest, Rome was never afraid of being over-populated, but, on
the contrary, tried to increase the number of its citizens by
according special privileges to the fathers of many children, and
exempting poor parents from most {410} of the burden of taxation.[189]
The power of life and death which the Roman father possessed over his
children undoubtedly involved the legal right of destroying or
exposing new-born infants; but it is equally certain that the act was
frequently disapproved of.[190] An ancient "law," ascribed to
Romulus--which, as Mommsen suggests, could have been merely a priestly
direction[191]--enjoined the father to bring up all his sons and at
least his eldest daughter, and forbade him to destroy any well-formed
child till it had completed its third year, when the affections of the
parent might be supposed to be developed.[192] In later times we find
the exposure of children condemned by poets, historians, philosophers,
jurists. Among nefarious acts committed in sign of grief on the day
when Germanicus died, Suetonius mentions the exposure of new-born
babes.[193] Epictetus indignantly opposes the saying of Epicurus that
men should not rear their children:--"Even a sheep will not desert its
young, nor a wolf; and shall a man? 'What! will you have us to be
silly creatures, like the sheep?' Yet they desert not their young. 'Or
savage, like wolves?' Yet even they desert them not. Come, then, who
would obey you if he saw his little child fall on the ground and
cry?"[194] Julius Paulus, the jurist, pronounced him who refused
nourishment to his child, or exposed it in a public place, to be
guilty of murder[195]--a statement which is to be understood, not as a
legal prohibition of exposure, but only as the expression of a moral
opinion.[196] On the other hand, though the exposure of healthy
infants was disapproved of in Pagan Rome, it was not generally
regarded as an offence of very great magnitude, especially if the
parents were destitute.[197] {411} During the Empire it was practised
on an extensive scale, and in the literature of the time it is spoken
of with frigid indifference. Since the life of the victim was
frequently saved by some benevolent person or with a view to
profit,[198] it was not regarded in the same light as downright
infanticide, which, in the case of a healthy infant, seems to have
been strictly prohibited by custom.[199]

[Footnote 186: Cicero, _De legibus_, iii. 8.]

[Footnote 187: Seneca, _De ira_, i. 15.]

[Footnote 188: Lecky, _History of European Morals_, ii. 27.]

[Footnote 189: Montesquieu, _De l'esprit des lois_, 20 _sqq._
(_[OE]uvres_, p. 398 _sqq._). Lecky, _History of European Morals_,
ii. 27.]

[Footnote 190: Denis, _Histoire des théories et des idées morales dans
l'antiquité_, ii. 110.]

[Footnote 191: Mommsen, _Römisches Strafrecht_, p. 619.]

[Footnote 192: Dionysius of Halicarnassus, _Antiquitates Romanæ_,
ii. 15.]

[Footnote 193: Suetonius, _Caligula_, 5.]

[Footnote 194: Epictetus, _Dissertationes_, i. 23.]

[Footnote 195: _Digesta_, xxv. 3. 4.]

[Footnote 196: Noodt, 'Julius Paulus, sive de partus expositione et
nece apud veteres,' in _Opera omnia_, i. 465 _sqq._ Walter,
_Geschichte des Römischen Rechts_, § 538, vol. ii. 148 _sq._
Spangenberg, 'Verbrechen des Kindermords und der Aussetzung der
Kinder,' in _Neues Archiv des Criminalrechts_, iii. 10 _sqq._ Mommsen,
_Römisches Strafrecht_, p. 620, n. 1.]

[Footnote 197: Quintilian, _Declamationes_, 506. Plutarch, _De amore
prolis_, 5.]

[Footnote 198: Lecky, _History of European Morals_, ii. 28. Lallemand,
_Histoire des enfants abandonnés et délaissés_, p. 59.]

[Footnote 199: Mommsen, _Römisches Strafrecht_, p. 619.]

As is generally the case in the savage world, so among semi-civilised
and civilised nations whose customs allow or tolerate infanticide, the
child, if not suffered to live, has to be killed in its earliest
infancy. Among the Chinese[200] and Rajputs[201] it is destroyed
immediately after its birth. In the Scandinavian North the killing or
exposure of an infant who had already been sprinkled with water was
regarded as murder.[202] At Athens parents were punished for exposing
children whom they had once begun to rear.[203]

[Footnote 200: Gutzlaff, _op. cit._ i. 59.]

[Footnote 201: _Church Missionary Intelligencer_, xi. 81. Chevers,
_op. cit._ p. 752.]

[Footnote 202: Grimm, _Deutsche Rechtsalterthümer_, i. 457.]

[Footnote 203: Schoemann, _Griechische Alterthümer_, i. 503.]

The practice of exposing new-born infants, so common in the Pagan
Empire, was vehemently denounced by the early Fathers of the
Church.[204] They tried to convince men that, if the abandoned infant
died, the unnatural parent was guilty of nothing less than murder,
whilst the sinful purposes for which foundlings were often used formed
another argument against exposure.[205] The enormity of the crime of
causing an infant's death was enhanced by the notion that children who
had died unbaptised were doomed to eternal perdition.[206] According
to a decree of the Council of Mentz in 852, the penance imposed on the
mother was heavier if she killed an unbaptised than if she killed a
{412} baptised child.[207] In the year 1556, Henry II. of France made
a law which punished as a child-murderer any woman who had concealed
her pregnancy and delivery, and whose child was found dead, "privé,
tant du saint sacrement de baptesme, que sépulture publique et
accoustumée."[208] This statute--to which there is a counterpart in
England in the statute 21 Jac. I. c. 27,[209] and in the Scotch law of
1690, c. 21[210]--thus went so far as to constitute a presumptive
murder, avowedly under the influence of that Christian dogma to which
Mr. Lecky attributes, in the first instance, "the healthy sense of the
value and sanctity of infant life which so broadly distinguishes
Christian from Pagan societies."[211]

[Footnote 204: See Terme and Monfalcon, _Histoire des enfans trouvés_,
p. 67 _sqq._]

[Footnote 205: Justin Martyr, _Apologia I. pro Christianis_, 29, 27
(Migne, _Patrologiæ cursus_, Ser. Graeca, vi. 373 _sq._, 369 _sqq._).]

[Footnote 206: _Cf._ Spangenberg, in _Neues Archiv des Criminalrechts_,
iii. 20; Lecky, _History of European Morals_, ii. 23.]

[Footnote 207: _Canon Hludowici regis_, 9 (Pertz, _Monum. Germaniæ
historica_, iii. 413).]

[Footnote 208: Isambert, Decrusy, and Armet, _Recueil général des
anciennes lois françaises_, xiii. 472 _sq._]

[Footnote 209: Blackstone, _Commentaries on the Laws of England_,
iv. 198.]

[Footnote 210: Erskine, _Principles of the Law of Scotland_, p. 560.]

[Footnote 211: Lecky, _History of European Morals_, ii. 23.]

If the Pagans had been comparatively indifferent to the sufferings of
the exposed infant, the Christians became all the more cruel to the
unfortunate mother, who, perhaps in a fit of despair, had put to death
her new-born child. The Christian emperor Valentinian I. made
infanticide a capital offence.[212] According to the Coutume de
Loudunois, a mother who killed her child was burned.[213] In Germany
and Switzerland she was buried alive with a pale thrust through her
body;[214] this punishment was prescribed by the criminal code of
Charles V., side by side with drowning.[215] Until the end of the
eighteenth, or the beginning of the nineteenth, century, infanticide
was a capital crime everywhere in Europe, except in Russia.[216] Then,
under the influence of that rationalistic movement which compelled men
to rectify so many preconceived opinions,[217] it became manifest that
an unmarried woman {413} who destroyed her illegitimate child was not
in the same category as an ordinary murderess.[218] It was pointed out
that shame and fear, the excitement of mind, and the difficulty in
rearing the poor bastard, could induce the unfortunate mother to
commit a crime which she herself abhorred. That no notice had been
taken of all this, is explicable from the extreme severity with which
female unchastity was looked upon by the Church. At present most
European lawbooks do not punish infanticide committed by an unmarried
woman even nominally with death.[219] In France the law which regards
infanticide as an aggravated form of _meurtre_[220] has become a dead
letter;[221] and in England no woman seems for a long time to have
been executed for killing her new-born child under the distress of
mind and fear of shame caused by child-birth.[222]

[Footnote 212: _Codex Theodosianus_, ix. 14. 1. _Institutiones_,
ix. 16, 7.]

[Footnote 213: Tissot, _Le droit pénal_, ii. 40.]

[Footnote 214: Osenbrüggen, _Das alamannische Strafrecht im deutschen
Mittelalter_, p. 229 _sq._ _Idem_, _Studien zur deutschen und
schweizerischen Rechtsgeschichte_, p. 358.]

[Footnote 215: Charles V.'s _Peinliche Gerichts Ordnung_, art. 131.]

[Footnote 216: de Feyfer, _Verhandeling over den Kindermoord_, p. 225.
von Fabrice, _Die Lehre von der Kindsabtreibung und vom Kindsmord_,
p. 251.]

[Footnote 217: Berner, _Lehrbuch des Deutschen Strafrechtes_, p. 497.]

[Footnote 218: Bentham maintained (_Theory of Legislation_, p. 264
_sq._) that infanticide ought not to be punished as a principal
offence. "The offence," he says, "is what is improperly called the
death of an infant, who has ceased to be, before knowing what
existence is,--a result of a nature not to give the slightest
inquietude to the most timid imagination; and which can cause no
regrets but to the very person who, through a sentiment of shame and
pity, has refused to prolong a life begun under the auspices of
misery."]

[Footnote 219: de Feyfer, _op. cit._ p. 228. For modern legislation on
infanticide, see also Spangenberg, in _Neues Archiv des
Criminalrechts_, iii. 360 _sqq._; von Fabrice, _op. cit._ p. 254 _sqq._]

[Footnote 220: _Code Pénal_, art. 300, 302.]

[Footnote 221: Garraud, _Traité théoretique et pratique du droit pénal
français_, iv. 251.]

[Footnote 222: Stephen, _History of the Criminal Law of England_,
iii. 86.]

       *       *       *       *       *

Hand in hand with the custom of infanticide goes feticide, which
prevails extensively in the savage world.[223] The same considerations
as induce savages to kill their new-born infants also induce them to
destroy the fetus before it has proceeded into the world from the
mother's body. Besides, women procure abortion with a view to avoiding
the disagreeable incidents accompanying the state of pregnancy; or,
very frequently, in order to conceal illicit intercourse.[224]
Considering that the same degree of sympathy cannot be felt with
regard to a child not yet born as with regard to an infant, it is not
surprising to find that feticide is practised without objection even
by {414} some peoples who never commit infanticide. Thus in Samoa,
where the latter practice was perfectly unknown, the destruction of
unborn children prevailed to a melancholy extent, and the same was the
case in the Mitchell Group.[225] Among the Dacotahs, who only
occasionally killed infants, abortion procured by artificial means was
not held objectionable.[226] On the other hand there are savages who
consider it a crime. Some Indian tribes in North America abhor the
practice.[227] The natives of Tenimber and Timor-laut punish it with
heavy fines.[228] Regarding the Kafirs, Mr. Warner states that "the
procuring of abortion, although universally practised by all classes
of females in Kafir society, is nevertheless a crime of considerable
magnitude in the eye of the Law; and when brought to the notice of the
Chief, a fine of four or five head of cattle is inflicted. The
accomplices are equally guilty with the female herself."[229]

[Footnote 223: Ploss, _Das Weib_, i. 842 _sqq._]

[Footnote 224: _Ibid._ i. 851 _sq._]

[Footnote 225: Turner, _Samoa_, pp. 79, 280.]

[Footnote 226: Schoolcraft, _Indian Tribes of the United States_, iii.
243. Keating, _op. cit._ i. 394.]

[Footnote 227: Ploss, _Das Weib_, i. 848.]

[Footnote 228: Riedel, _De sluik- en kroesharige rassen tusschen
Selebes en Papua_, p. 302.]

[Footnote 229: Warner, in Maclean, _Compendium of Kafir Laws and
Customs_, p. 62. _Cf._ Brownlee, _ibid._ p. 111; Holden, _Past and
Future of the Kaffir Races_, p. 334.]

Passing to more civilised nations, we notice that, among Hindus and
Muhammedans, artificial abortion is extremely common and is hardly
reprobated by public opinion, whatever religion or law may have to say
on the subject.[230] It is especially resorted to by unmarried women
as a means of escaping punishment and shame. "In a country like
India," says Dr. Chevers, "where true morality is almost unknown, but
where the laws of society exercise the most rigorous and vigilant
control imaginable over the conduct of females, and where six-sevenths
of the widows, whatever their age or position in life may be, are
absolutely debarred from re-marriage, and are compelled to rely upon
the uncertain support of their relatives, it is scarcely surprising
that great crimes should be frequently practised to conceal the
results of immorality, and that the procuring of criminal abortion
should, especially, be an act of {415} almost daily commission, and
should have become a trade among certain of the lower midwives."[231]
In Persia every illegitimate pregnancy ends with abortion; the act is
done almost publicly, and no obstacle is put in its way.[232] In
Turkey, both among the rich and poor, even married women very commonly
procure abortion after they have given birth to two children, one of
which is a boy; and the authorities regard the practice with
indifference.[233] In ancient Greece, as we have seen, feticide was
under certain circumstances recommended by Plato and Aristotle, in
preference to infanticide. In Rome it was prohibited by Septimius
Severus and Antoninus, but the prohibition seems to have referred only
to those married women who, by procuring abortion, defrauded their
husbands of children.[234] During the Pagan Empire, abortion was
extensively practised, either from poverty, or licentiousness, or
vanity; and, although severely disapproved of by some,[235] "it was
probably regarded by the average Romans of the later days of Paganism
much as Englishmen in the last century regarded convivial excesses, as
certainly wrong, but so venial as scarcely to deserve censure."[236]
Seneca thinks Helvia worthy of special praise because she had never
destroyed her expected child within her womb, "after the fashion of
many other women, whose attractions are to be found in their beauty
alone."[237] The Romans drew a broad line between feticide and
infanticide. An unborn child was not regarded by them as a human
being; it was a _spes animantis_, not an _infans_.[238] It was said to
be merely a part of the mother, as the fruit is a part of the tree
till it becomes ripe and falls down.[239]

[Footnote 230: _Laws of Manu_, v. 90; _Vish['n]u Purá['n]a_,
p. 207 _sq._]

[Footnote 231: Chevers, _op. cit._ p. 712.]

[Footnote 232: Polak, _Persien_, i. 217.]

[Footnote 233: Ploss, _Das Weib_, i. 846 _sq._]

[Footnote 234: _Digesta_, xlvii. 11. 4. _Cf._ Rein, _Criminalrecht der
Römer_, p. 447.]

[Footnote 235: Paulus, quoted in _Digesta_, xxv. 3, 4.]

[Footnote 236: Lecky, _History of European Morals_, ii. 21 _sq._]

[Footnote 237: Seneca, _Ad Helviam_, 16.]

[Footnote 238: Spangenberg, 'Verbrechen der Abtreibung der
Leibesfrucht,' in _Neues Archiv des Criminalrechts_, ii.
23.]

[Footnote 239: _Ibid._ ii. 22.]

Very different opinions were held by the Christians. A sanctity,
previously unheard of, was attached to human life from the very
beginning. Feticide was regarded as a {416} form of murder.
"Prevention of birth," says Tertullian, "is a precipitation of murder;
nor does it matter whether one take away a life when formed, or drive
it away while forming. He also is a man who is about to be one. Even
every fruit already exists in its seed."[240] St. Augustine, again,
makes a distinction between an embryo which has already been formed,
and an embryo as yet unformed. From the creation of Adam, he says, it
appears that the body is made before the soul. Before the embryo has
been endowed with a soul it is an _embryo informatus_, and its
artificial abortion is to be punished with a fine only; but the
_embryo formatus_ is an animate being, and to destroy it is nothing
less than murder, a crime punishable with death.[241] This distinction
between an animate and inanimate fetus was embodied both in Canon[242]
and Justinian law,[243] and passed subsequently into various
lawbooks.[244] And a woman who destroyed her animate embryo was
punished with death.[245]

[Footnote 240: Tertullian, _Apologeticus_, 9 (Migne _op. cit._
i. 319 _sq._).]

[Footnote 241: St. Augustine, _Questiones in Exodum_, 80; _Idem_,
_Questiones Veteris et Novi Testamenti_, 23 (Migne, _op. cit._
xxxiv.-xxxv. 626, 2229).]

[Footnote 242: Gratian, _Decretum_, ii. 32. 2. 8 _sq._]

[Footnote 243: As regards the time from which the fetus was considered
to be animate a curious distinction was drawn between the male and the
female fetus. The former was regarded as _animatus_ forty days after
its conception, the latter eighty days. This theory, however--which
was derived, as it seems, either from an absurd misinterpretation of
_Leviticus_, xii. 2-5, or from the views of Aristotle (_De animalibus
historiæ_, vii. 3; _cf._ Pliny, _Historia naturalis_, vii. 6)--was not
accepted by the glossarist of the Justinian Code, who fixed the
animation of the female, as well as of the male, fetus at forty days
after its conception; and this view was adopted by later jurists
(Spangenberg, in _Neues Archiv des Criminalrechts_, ii. 37 _sqq._).]

[Footnote 244: von Fabrice, _op. cit._ p. 202 _sq._ Berner, _op. cit._
p. 501. Wilda, _op. cit._ p. 720 _sqq._]

[Footnote 245: Fleta, i. 23. 12 (England). Charles V's _Peinliche
Gerichts Ordnung_, art. 133. Spangenberg in _Neues Archiv des
Criminalrechts_, ii. 16.]

The criminality of artificial abortion was increased by the belief
that an _embryo formatus_, being a person endowed with an immortal
soul, was in need of baptism for its salvation. In his highly esteemed
treatise De fide, written in the sixth century, St. Fulgentius says,
"It is to be believed beyond doubt, that not only men who are come to
the use of reason, but infants, whether they die in their mother's
womb, or after they are born, without baptism, {417} in the name of
the Father, Son, and Holy Ghost, are punished with everlasting
punishment in eternal fire, because though they have no actual sin of
their own, yet they carry along with them the condemnation of original
sin from their first conception and birth."[246] And in the Lex
Bajuwariorum this doctrine is expressly referred to in a paragraph
which prescribes a daily compensation for children killed in the womb
on account of the daily suffering of those children in hell.[247]
Subsequently, however, St. Fulgentius' dictum was called in question,
and no less a person than Thomas Aquinas suggested the possibility of
salvation for an infant who died before its birth.[248] Apart from
this, the doctrine that the life of an embryo is equally sacred with
the life of an infant was so much opposed to popular feelings, that
the law concerning feticide had to be altered. Modern legislation,
though treating the fetus as a distinct being from the moment of its
conception,[249] punishes criminal abortion less severely than
infanticide.[250] And the very frequent occurrence of this crime[251]
is an evidence of the comparative indifference with which it is
practically looked upon by large numbers of people in Christian
countries.

[Footnote 246: St. Fulgentius, _De fide_, 27 (Migne, _op. cit._
lxv. 701).]

[Footnote 247: _Lex Bajuwariorum_, viii. 21 (vii. 20).]

[Footnote 248: Lecky, _History of the Rise and Influence of the Spirit
of Rationalism in Europe_, i. 360, n. 2.]

[Footnote 249: Henke, _Lehrbuch der gerichtlichen Medicin_, 99, p. 75.
Berner, _op. cit._ p. 502.]

[Footnote 250: von Fabrice, _op. cit._ p. 199. For modern laws
referring to criminal abortion, see _ibid._ p. 206 _sqq._, and
Spangenberg, in _Neues Archiv des Criminalrechts_, ii. 178 _sqq._]

[Footnote 251: See Ploss, _Das Weib_, i. 848 _sqq._; Schmidt's
_Jahrbücher der in- und ausländischen Gesammten Medicin_, xciii. 97.]




CHAPTER XVIII

THE KILLING OF WOMEN AND OF SLAVES--THE CRIMINALITY OF HOMICIDE
INFLUENCED BY