Читать книгу The Origin and Development of the Moral Ideas - Edward Westermarck - Страница 85

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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 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

1 von Martius, Beiträge zür Ethnographie Amerika’s, i. 693 sq.

2 Im Thurn, Among the Indians of Guiana, p. 214.

3 Adair, History of the American Indians, p. 150.

4 Rautanen, in Steinmetz, Rechtsverhältnisse, p. 341.

5 Sorge, ibid. p. 418.

6 Kohler, in Zeitschr. f. vergl. Rechtswiss. xiv. 443. See also Idem, Shakespeare vor dem Forum der Jurisprudenz, p. 188.

7 Fisher, in Jour. Asiatic Soc. Bengal, ix. 835.

8 Rohde, Psyche, pp. 237, 238, 242.

9 Wilda, Strafrecht der Germanen, p. 174.

10 Snorri Sturluson, ‘Gylfaginning,’ 50, in Edda, p. 59. Cf. Brunner, Forschungen zur Geschichte des deutschen und französischen Rechtes, p. 489.

11 Pollock and Maitland, History of English Law before the Time of Edward I. ii. 482.

12 Leges Henrici I. xc. 7.

13 Pollock and Maitland, op. cit. ii. 471.

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

14 Macpherson, Memorials of Service in India, p. 82.

15 Crawfurd, History of the Indian Archipelago, iii. 123. Ellis, Ew̔e-speaking Peoples of the Slave Coast, p. 223. Munzinger, Ostafrikanische Studien, p. 502 (Barea and Kunáma).

However, this want of discrimination between intentional and accidental injuries is not restricted to cases of revenge or compensation. Early punishment is sometimes equally indiscriminate.

Among the Káfirs of the Hindu-Kush, “murder, justifiable homicide, and killing by inadvertence in a quarrel, are all classed as one crime, and punished in the same way. Extenuating circumstances are never considered. The single question asked is, Did the man kill the other? The penalty is an extremely heavy blood-ransom to the family of the slain man, or perpetual exile combined with spoliation of the criminal’s property.”16 Parkyns tells us the following story from Abyssinia:—A boy who had climbed a tree, happened to fall down right on the head of his little comrade standing below. The comrade died immediately, and the unlucky climber was in consequence sentenced to be killed in the same way as he had killed the other boy, that is, the dead boy’s brother should climb the tree in his turn, and tumble down on the other’s head till he killed him.17 The Cameroon tribes do not recognise the circumstance of accidental death:—“He who kills another accidentally must die. Then, they say, the friends of each are equal mourners.”18 Among the negroes of Accra, according to Monrad, accidental homicide is punished as severely as intentional.19

16 Scott Robertson, Káfirs of the Hindu-Kush, p. 440.

17 Parkyns, Life in Abyssinia, ii. 236 sqq.

18 Richardson, ‘Observations among the Cameroon Tribes of West Central Africa,’ in Memoirs of the International Congress of Anthropology, Chicago, p. 203. See also Leuschner, in Steinmetz, Rechtsverhältnisse, p. 24 (Bakwiri); ibid. p. 51 (Banaka and Bapuku).

19 Monrad, Guinea-Kysten og dens Indbyggere, p. 88.

Yet it would obviously be a mistake to suppose that, at early stages of civilisation, people generally look only at the harm done, and not in the least at the will of him who did it. Even in the system of private redress we often 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.

20 Cf. Kohler, Shakespeare vor dem Forum der Jurisprudenz, p. 188, n. 1.

Among the African Wapokomo intention makes a difference in the revenge.21 Among the Papuans of the Tami Islands blood-revenge is common in the case of murder, but is not exacted in the case of accidental homicide; the involuntary manslayer has only to pay a compensation and to leave the community for a certain length of time.22 Among the Namaqua Hottentots custom demands that compensation should be accepted for unintentional killing.23 We meet with the same principle among the Albanians24 and the Slavs,25 in the past history of other European peoples,26 in ancient Yucatan,27 and in the religious law of Muhammedanism.28 Among the Kabyles of Algeria, “si les mœurs n’autorisent jamais la famille victime d’un homicide volontaire à amnistier un crime, elles lui permettent presque toujours de pardonner la mort qui ne résulte que d’une maladresse ou d’un accident.” They have a special ceremony by which the family of the deceased grant pardon to the involuntary manslayer, but the pardon must be given unanimously. The manslayer then becomes a member of the kharuba, or gens, of the deceased.29 Among the Omahas, “when one man killed another accidentally, he was rescued by the interposition of the chiefs, and subsequently was punished as if he were a murderer, but only for a year or two.”30 The 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

21 Kraft, in Steinmetz, Rechtsverhältnisse, p. 292.

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

23 Fritsch, Die Eingeborenen Süd-Afrika’s, p. 363.

24 Gopčević, Oberalbanien und seine Liga, p. 327.

25 Miklosich, ‘Blutrache bei den Slaven,’ in Denkschriften der kaiserl. Akademie der Wissensch. Philos.-histor. Classe, Vienna, xxxvi. 131.

26 Leist, Græco-italische Rechtsgeschichte, p. 324. Ancient Laws of Ireland, iii. p. cxxiv. For the ancient Teutons, see infra, p. 226.

27 de Landa, Relacion de las cosas de Yucatan, p. 134.

28 Koran, iv. 94. Cf. Sachau, Muhammedanisches Recht nach Schafiitischer Lehre, p. 761 sq.

29 Hanoteau and Letourneux, La Kabylie, iii. 68 sq.

30 Dorsey, ‘Omaha Sociology,' in Ann. Rep. Bur. Ethn. iii. 370.

31 Deuteronomy, iv. 42. Numbers, xxxv. 11 sqq. Joshua, xx. 3 sqq.

32 Servius, In Virgilii Bucolica, 43. Cf. von Jhering, Das Schuldmoment im römischen Privatrecht, p. 11.

Among some peoples who accept compensation even for wilful murder, the blood-price is lower if life is taken unintentionally.33

33 Beverley, in Steinmetz, Rechtsverhältnisse, p. 215 (Wagogo). Dareste, Nouvelles études d’histoire du droit, p. 237 (Swanetians of the Caucasus).

According to Bowdich, “a person accidentally killing another in Ahanta, pays 5 oz. of gold to the family, and defrays the burial customs. In the case of murder, it is 20 oz. of gold and a slave; or, he and his family become the slaves of the family of the deceased.”34 Ancient Irish law imposed an Eric fine for accidental or unintentional homicide, to be paid to the relatives of the dead man, whilst a double fine was due for homicide where anger was shown, i.e., where probably there was what we should call “malice.”35

34 Bowdich, Mission from Cape Castle to Ashantee, p. 258, n. ‡.

35 Cherry, Growth of Criminal Law in Ancient Communities, p. 22.

In the punishments inflicted by many savages, a similar distinction is made between intentional and accidental harm, although, at the same time, some degree of guilt is frequently imputed to persons who, in our opinion, are perfectly innocent.

Speaking of the West Australian aborigines, Sir G. Grey observes:—“If a native is slain by another wilfully, they kill the murderer, or any of his friends they can lay hands on. If a native kills another accidentally, he is punished according to the circumstances of the case.” And the punishment may be severe enough. “For instance, if, in inflicting spear wounds as a punishment for some offence, one of the agents should spear the culprit through the thigh, and accidentally so injure the 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-lūr, in the case of accidental injuries, a compensation is paid to the injured party and a fine to the chief. Whilst the strict punishment for murder is death, the culprit is allowed to redeem himself if it cannot be proved that he committed the deed wilfully.40 The Masai regard accidental homicide, or injury, as “the will of N’gai,” “the Unknown,” and “the elders arrange what compensation shall be paid to the injured person (if a male) or to the nearest relative. If a woman is killed by accident, all the killer’s property becomes the property of the nearest relative.”41 The Eastern Central Africans, according to the Rev. D. Macdonald, “know the difference between an injury of accident and one of intention.”42 And so do the natives of Nossi-Bé and Mayotte, near Madagascar.43

36 Grey, Journals of Expeditions of Discovery in North-West and Western Australia, ii. 238 sq.

37 Chalmers, Pioneering in New Guinea, p. 179.

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

39 Maclean, Compendium of Kafir Laws and Customs, pp. 113, 67, 60.

40 Stuhlmann, Mit Emin Pascha ins Herz von Afrika, p. 524.

41 Hinde, The Last of the Masai, p. 108.

42 Macdonald, Africana, i. 11.

43 Walter, in Steinmetz, Rechtsverhältnisse, p. 393.

Nay, there are instances of uncivilised peoples who entirely excuse, or do not punish, a person for an injury which he has inflicted by mere accident, even though they may compel him to pay damages for involuntary destruction of property.

We are told that the Pennsylvania Indians “judge with calmness on all occasions, and decide with precision, or 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

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

45 Kohler, in Zeitschr. f. vergl. Rechtswiss. xiv. 448.

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

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

48 Kohler, ibid. xv. 353.

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

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

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

It is a principle of the Chinese law that “all persons who kill or wound others purely by accident, shall be permitted to redeem themselves from the punishment of killing or wounding in an affray, by the payment in each case of a fine to the family of the person deceased or wounded.”51 But there are exceptions to this rule. Any 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

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

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

53 Ibid. sec. cccxiv. p. 338.

54 Ibid. sec. xvi. p. 18.

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

55 Laws of Ḫammurabi, 206 sqq.

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