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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 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.

113 Sophocles, Œdipus Tyrannus.

114 Idem, Œdipus Coloneus, 960 sqq. (Jebb’s translation, p. 155).

Whilst the grossest want of discrimination may thus be explained from revengeful feelings and superstitious beliefs, there still remain a multitude of cases which must be regarded as genuine expressions of moral indignation. As to these, it should, first, be remembered that even the reflecting moral consciousness may hold a person blamable for the unintentional and unforeseen infliction of an injury, namely, in cases where it assumes want of proper foresight. Now, as we know, it is often difficult enough to discern whether, or to what extent, an unintended injury is due to carelessness on the part of the agent; sometimes even it is no easy thing to tell whether an injury was intended or not. It is not to be expected, then, that distinctions of so subtle a nature should be properly made by the uncultured mind, and least of all is it to be expected that such distinctions should be embodied in early custom and law, which are based on average cases and allow of no minute individualisation. It has been observed that the roughness of Teutonic justice may be partly explained from the difficulty in getting any proof of intention or of its absence, from the lack of any proper distinctions between 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

115 Pollock and Maitland, op. cit. i. 55; ii. 475, 483. von Amira, Nordgermanisches Obligationenrecht, i. 377 sq.

116 Wilda, op. cit. i. 345. Brunner, Forschungen, p. 500 sq. Pollock and Maitland, op. cit. ii. 471.

117 Wilda, op. cit. p. 584. Trummer, op. cit. i. 427. Brunner, Forschungen, p. 499 sq. von Amira, ‘Recht,’ in Paul’s Grundriss der germanischen Philologie, ii. pt. ii. 172. Pollock and Maitland, op. cit. i. 53 sq.

118 von Amira, Nordgermanisches Obligationenrecht, i. 377.

Where the distinction between guilt and innocence is difficult to draw, it may be wise policy to presume guilt. According to Sir R. Burton, the Mpongwe jurists say that little or no difference is generally made between wilful murder and accidental manslaughter in order that people should be more careful;119 and a similar idea may lie at the bottom of the Dahoman law which punishes capitally any person whose house takes fire, even if it happens accidentally.120 But the presumption of guilt is not only, nor in the first place, owing to considerations of social utility, combined with a reckless indifference to undeserved suffering. The unreflecting mind is shocked by the harm done, and cares little for the rest. It does not press the question whether the harm was caused by the agent’s will or not. It does not make any serious attempt to separate the external event from the will, and it is inclined to assume that there is a coincidence between the two. This is not altogether bad psychology since, as a rule, men will what they do. “Le fait juge l’homme,” says an old French proverb; and in morals, also, “the tree is known by the fruit.” However, there are cases of injuries in which not even uncivilised men can fail to discover, at once, the absence of any evil intention. This certainly does not mean that the injurer escapes all censure. Every feeling of pain, sympathetic pain included, which is caused by a living being, has a certain tendency to give rise to an aggressive impulse towards its cause; hence savages, even though they distinguish between intentional and unintentional harm, are inclined to impute some degree of guilt to any person who involuntarily commits a forbidden deed, though he be in reality quite innocent. But the reason for this is only want of due reflection. If it is clearly understood that a certain event is the result of merely external circumstances, that it was neither intended by the agent nor could have been foreseen by him, in other words, that it in no way was caused by his will—then there could be no moral indignation at all. It would be simply absurd to suppose that an outward event as such, assumed to be absolutely unconnected with any defect of will, could ever give rise to moral blame. Such an event could not even call forth a feeling of revenge. Sudden anger itself cools down when it appears that the cause of the inflicted pain was a mere accident. Even a dog, as has been observed, distinguishes between being stumbled over and being kicked.

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

120 Ellis, Ew̔e-speaking Peoples of the Slave Coast, p. 224.

That the indiscriminate attitude of early custom and law towards accidental injuries does not imply any difference in principle between the enlightened and unenlightened moral consciousness as regards the subject of moral valuation, 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.

121 Adam Smith, Theory of Moral Sentiments, p. 152.

122 According to Harris (Principles of the Criminal Law, p. 156), the act should be a malum in se, not merely a malum quia prohibitum.

123 Kenny, op. cit. p. 41.

124 Stephen, History of the Criminal Law of England, iii. 8.

125 Ibid. iii. 22.

126 Ibid. iii. 83.

127 Harris, op. cit. p. 157.

128 Stephen, op. cit. ii. 113.

129 Hale, History of the Pleas of the Crown, i. 428.

130 Lex Wisigothorum, vi. 5. 6: “Si dum quis calce, vel pugno, aut quacumque percussione injuriam conatur inferre, homicidii extiterit occasio, pro homicidio puniatur.”

131 Code Pénal, art. 309.

132 Strafgesetzbuch, art. 226.

133 Ottoman Penal Code, art. 177. Cf. ibid. art. 174.

134 Sachau, op. cit. p. 761 sq.

I presume that nobody after due deliberation would maintain that the moral guilt of the offender is enhanced by the death of him whom he involuntarily happened to kill. Sir James Stephen, nevertheless, makes an attempt to defend, from a moral point of view, the severe English law on the subject, which he thinks “is much to be preferred to the law of France.” He asks, “Is there anything to choose morally between the man who violently stabs another in the chest with the definite intention of killing him, and a man who stabs another in the chest with no definite intention at all as to the victim’s life or death, but with a feeling of indifference whether he lives or dies?”135 Perhaps not. But I venture to maintain that there is a considerable moral difference between the man who shoots at another with the definite intention of killing him, and the man who, firing at another’s chickens, with the intention of stealing them, accidentally kills the owner whom 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.

135 Stephen, op. cit. iii. 91 sq.

136 Ibid. iii. 91.

In the cases which we have hitherto considered the external event which a person brings about involuntarily, either makes him liable to punishment though he really is free from guilt, or increases his punishment beyond the limits of his guilt. But the influence of chance also shows 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 Ossetes140 and Swanetians141 of the Caucasus, as also of ancient Russian law.142 The Teutons, as a general rule, had no punishment for him who tried to do harm, but failed; and if they did punish an unsuccessful attempt, the penalty was out of proportion lenient.143 This feature of ancient Teutonic law has had a lasting effect upon European legislation, largely through the influence it exercised upon the Italian jurists of the Middle Ages,144 whose theories laid the foundation of modern laws and doctrines on attempt. In conformity with the Roman law, they held attempts to commit crimes to be punishable, and in atrocious cases they even admitted that the attempt might be subject to the same punishment as the accomplished crime. But their general theory was that it should be punished less severely, and that the penalty should be lenient in proportion as the actual deed was remote from the act intended.145 These views were generally adopted by the later legislation. Among present European lawbooks, the French Code Pénal146 is almost the only one that punishes an attempt 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

137 Kohler, in Zeitschr. f. vergl. Rechtswiss. xv. 353.

138 Merker, quoted by Kohler, ibid. xv. 63.

139 Kohler, ibid. xiv. 418.

140 Kovalewsky, Coutume contemporaine, p. 296 sq.

141 Dareste, Nouvelles études d’histoire du droit, p. 237.

142 Kovalewsky, op. cit. pp. 291, 299.

143 Wilda, op. cit. p. 598 sqq. Zachariä, Die Lehre vom Versuche der Verbrechen, i. 164 sqq.; ii. 130 sq. Brunner, Deutsche Rechtsgeschichte, ii. 558 sqq. Pollock and Maitland, ii. 475, 509.

144 Seeger, Versuch der Verbrechen in der Wissenschaft des Mittelalters, p. 8.

145 Zachariä, op. cit. i. 169; ii. 141. von Feuerbach-Mittermaier, Lehrbuch des Peinlichen Rechts, p. 74.

146 Code Pénal, art. 2: “Toute tentative de crime qui aura été manifestée par un commencement d’exécution, si elle n’a été suspendue ou si elle n’a manqué son effet que par des circonstances indépendantes de la volonté de son auteur, est considérée comme le crime même.”

147 Chauveau and Hélie, Théorie du Code Pénal, i. 347 sq.

148 Ibid. i. 337 sq.

Besides the provision of the Code Pénal concerning attempt, there are a few other exceptions, of an earlier date, to the general rule. The Romans seemed to have followed the principle “dolus pro facto accipitur,”149 at least if the crime attempted was a serious one.150 A somewhat similar line was adopted by ancient Irish law. The general impression produced by the rules in the commentary to the Book of Aicill is, that the attempt to commit an injurious act was treated as equivalent to its commission, unless the result was very insignificant. Thus, if an attempt was made to slay, or to inflict an injury which would endure for life, and blood was shed, the fine was the same as if the attempt had succeeded; whereas, if the injury did not amount to the shedding of blood, the fine was reduced one-half.151 And if a man went to kill one person and killed another by mistake, a fine for the intention, in addition to the fine due to the friends of the murdered man, was due to him whose death was intended, even though no injury was actually done to him.152 In England, at the end of the Middle Ages, the will was taken for the deed in cases of obvious attempts to murder; but this rule appears to have been considered too severe—even in an age when death was the common punishment for felony—and to have fallen into disuse several centuries ago.153

149 Digesta, xlviii. 8. 7.

150 Seeger, Versuch der Verbrechen nach römischcm Recht, pp. 1, 2, 49. Idem, Versuch der Verbrechen in der Wissenschaft des Mittelalters, p. 9. Mommsen, Römisches Strafrecht, p. 97 sq. Apuleius, Florida, iv. 20:—“In maleficiis etiam cogitata scelera non perfecta adhuc vindicantur, cruenta mente, pura manu. Ergo sicut ad poenam sufficit meditari punienda.”

151 Ancient Laws of Ireland, iii. pp. cviii. sq. 139.

152 Cherry, Growth of Criminal Law in Ancient Communities, p. 32.

153 Stephen, op. cit. ii. 222 sq. Thomas Smith, Common-wealth of England, p. 194 sq.

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 French156 and German157 codes, on the other hand, do not punish, except in a few particular cases, attempts to commit délits or Verbrechen, that is, what the English jurists would describe as misdemeanours.

154 See Cohn, Zur Lehre vom versuchten und unvollendeten Verbrechen, i. 6 sqq.

155 Stephen, op. cit. ii. 224.

156 Code Pénal art. 3.

157 Strafgesetzbuch, art. 43.

Again, should a person be punished for attempting to commit a crime in a manner in which success is physically impossible, as if he attempts to steal from a pocket which is empty, or puts into a cup pounded sugar which he believes to be arsenic? This question has given rise to a whole literature. Seneca’s statement that “he who mixes a sleeping draught, believing it to be poison, is a poisoner,”158 seems to have had the support of Roman law.159 In England, some time ago, the man who attempted to pick an empty pocket, was not held liable for an attempt to steal;160 but this case has been overruled, and it appears now to be the law that an indictment would lie for such an attempt.161 According to the French162 and Italian163 codes, it would not be punished, according to some German law-books, it would;164 whilst the Strafgesetzbuch contains no special provisions for attempts of a similar character.

158 Seneca, De beneficiis, v. 13. Cf. Idem, Ad Serenum, 7.

159 Seeger, Versuch nach römischem Recht, p. 30.

160 Stephen, op. cit. ii. 225.

161 Harris, Principles of the Criminal Law, p. 209 n. c.

162 Stephen, op. cit. ii. 225.

163 Alimena, in Le droit criminel des états européens, ed. by von Liszt, p. 123.

164 von Feuerbach-Mittermaier, op. cit. p. 76. Cohn, op. cit. i. 14.

Finally there are different rules as to the stage at which an attempt begins to be criminal, or as to the distinction between attempts and acts of preparation. The Romans, it is supposed, drew no such distinction.165 The French law regards as permissible acts of preparation many 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