Before CHAPTER X AGENTS UNDER INTELLECTUAL DISABILITY
Project Gutenberg EPUB3 edition
Westermarck, Edward
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 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
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 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
It is said in the Laws of Ḫammurabi:—“If a man has struck a man in a quarrel, and has caused him a wound, that man shall swear ‘I did not strike him knowing’ and shall answer for the doctor. If he has died of his blows, he shall swear, and if he be of gentle birth he shall pay half a mina of silver. If he be the son of a poor man, he shall pay one-third of a mina of silver.”55
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
According to the Laws of Manu, “he who damages the 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
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
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
Source notes
36 Grey, Journals of Expeditions of Discovery in North-West and Western Australia, ii. 238 sq.
37 Chalmers, Pioneering in New Guinea, p. 179.
38 Burton, Two Trips to Gorilla Land, i. 105.
39 Maclean, Compendium of Kafir Laws and Customs, pp. 113, 67, 60.
40 Stuhlmann, Mit Emin Pascha ins Herz von Afrika, p. 524.
41 Hinde, The Last of the Masai, p. 108.
42 Macdonald, Africana, i. 11.
43 Walter, in Steinmetz, Rechtsverhältnisse, p. 393.
44 Buchanan, North American Indians, p. 160 sq.
45 Kohler, in Zeitschr. f. vergl. Rechtswiss. xiv. 448.
46 Bamler, quoted by Kohler, ibid. xiv. 381.
47 Merker, quoted by Kohler, ibid. xv. 64.
48 Kohler, ibid. xv. 353.
49 Lang, in Steinmetz, Rechtsverhältnisse, p. 261.
50 Miss Kingsley, in her Introduction to Dennett’s Notes on the Folklore of the Fjort, p. xi.
51Ta Tsing Leu Lee, sec. ccxcii. p. 314.
52Ibid. sec. cccxix. p. 347. Cf. ibid. sec. ccxcii. p. 314.
53Ibid. sec. cccxiv. p. 338.
54Ibid. sec. xvi. p. 18.
55Laws of Ḫammurabi, 206 sqq.
56 Goitein, Das Vergeltungsprincip im biblischen und talmudischen Strafrecht, p. 25 sq. Keil, Manual of Biblical Archæology, ii. 371.
57Numbers, xxxv. 26 sqq.
58Laws of Manu, viii. 288.
59Ibid. xi. 73 sqq.
60Ibid. xi. 90. Gautama, xxi. 7. According to some authorities, however, the wilful slaying of a Brâhmana was expiable by a penance of greater severity (Bühler’s note, in his translation of the ‘Laws of Manu,’ Sacred Books of the East, xxv. 449).
61 Demosthenes, Contra Aristocratem, 71 sq. p. 643 sq.
62 Aristotle, De republica Atheniensium, 57. Farnell, Cults of the Greek States, i. 304.
63Digesta, xlviii. 8. 14.
64 von Jhering, Das Schuldmoment im römischen Privatrecht, p. 16. Mommsen, Römisches Strafrecht, p. 85.
65 Mommsen, op. cit. p. 85.
66Leges Henrici I. xc. 11.