The origin and development of the moral ideas

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 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

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.

But the dead man’s ghost not only persecutes his own family if neglectful of their duty, it also attacks the manslayer 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 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.

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 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.

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 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 intended116—unless, indeed, the misadventure belonged to a certain type of injuries which by their very nature entailed no guilt. For instance, if a man carried a spear level on his shoulder and another ran upon the point, he was free from blame; whereas, if harm ensued by pure accident from a distinct act, the agent was liable.117 As von Amira remarks, the Swedish notion of vadhaværk was not a merely negative conception, but implied that there was danger connected with the act.118

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. 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.

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, 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 day124 as the result of an unlawful act which amounts to a felony.125 For instance, a person kills another accidentally by shooting at a domestic fowl with intent to steal it, and he will probably be convicted of murder.126 Again, a near-sighted man drives at a rapid rate, sitting at the bottom of his cart, and thereby causes the death of a foot-passenger; he is guilty of manslaughter.127 A man recklessly and wantonly throws a lighted match into a haystack, careless whether it take fire or not, and so burns down the stack; his crime is arson. But if he did not intend to throw the lighted match on the haystack, he would probably not be guilty of any offence at all, “unless death was caused, in which case he would be guilty of manslaughter.”128 Even if the unintended death is to some 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 law130—is without a parallel in the European legislation of the present day. Both the French131 and the German132 laws are much less severe; and so is the Ottoman Penal Code,133 and Muhammedan law in general.134 Yet the unintended deadly consequence of a criminal act always affects the punishment more or less.