Читать книгу The Origin and Development of the Moral Ideas - Edward Westermarck - Страница 92

80 Salvado, Mémoires historiques sur l’Australie, p. 260 sq.

81 Nansen, Eskimo Life, p. 213 sq.

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.

83 Im Thurn, op. cit. p. 354.

84 See Frazer, Golden Bough, i. 169 sqq.

85 Pausanias, i. 28. 11.

86 Pollock and Maitland, ii. 474.

87 Bracton, De Legibus et Consuetudinibus Angliæ, fol. 116, vol. ii. 236 sq.

88 Holmes, Common Law, p. 25.

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.”

90 Coke, op. cit. p. 57. Hale, History of the Pleas of the Crown, i. 422. Stephen, op. cit. iii. 78.

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.

92 Britton, i. 2. 14, vol. i. 16.

93 Hale, op. cit. i. 422.

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 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 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

95 Stephen, op. cit. ii. 97 sq.

96 Erskine-Rankine, Principles of the Law of Scotland, p. 546.

97 Bishop, Commentaries on the Criminal Law, § 368, vol. i. 209.

98 Italian Codice Penale, art. 53. Spanish Código Penal reformado, art. 8, § 2.

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.

100 German Strafgesetzbuch, art. 55.

101 Swedish (Uppström, in Législation pénale comparée, p. 483), Finnish (Forsman, ibid. p. 565) law.

102 French, Belgian, Ottoman law (Rivière, ibid. p. 7).

103 Code Pénal, art. 66 sqq.

104 Stephen, op. cit. ii. 98. Kenny, Outlines of Criminal Law, p. 50.

105 Strafgesetzbuch, art. 56.

106 Dutch law (van Hamel, loc. cit. p. 444).

107 Spanish (Código Penal reformado, art. 9, § 2), Swedish (Uppström, loc. cit. p. 484), Finnish (Forsman, loc. cit. p. 566) law.

108 Austrian law (Finger, op. cit. i. 112).

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 fourteen111—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 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

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).

111 Ancient Laws of Ireland, iii. 157.

112 Katz, Grundriss des kanonischen Strafrechts, p. 8.

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.

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 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 at which full legal responsibility commences. And we have reason to hope that legislation has not yet said its last word on the subject.

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.

116 Lang, in Steinmetz, Rechtsverhältnisse, p. 257 (Washambala).

117 Iliad, xxiii. 85 sqq. Cf. Müller, Dissertations on the Eumenides, p. 95.

118 Nicole, in Steinmetz, Rechtsverhältnisse p. 132 (Diakité-Sarrakolese). Marx, ibid. p. 357 (Amahlubi).

119 Dennett, in Jour. African Society, i. 276.

120 Wigmore, ‘Responsibility for Tortious Acts,’ in Harvard Law Review, vii. 447.

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.

122 Grágás, Vigsloþi, 32, vol. ii. 63.

123 Wigmore, loc. cit. p. 447.

124 Three Early Assize Rolls for the County of Northumberland, p. 323.

125 Pollock and Maitland, op. cit. ii. 84.

126 Wigmore, loc. cit. p. 447 sq. n. 7.

127 Wilson, History of Modern English Law, p. 124.

128 Foster, Report of Crown Cases, p. 70 sqq.

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.

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, ‘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 ʿAbdssalam 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

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.

132 Digesta, xxvii. 10. 6.

133 Dobrizhoffer, Account of the Abipones, ii. 234.

134 Keating, Expedition to the Source of St. Peter’s River, i. 127.

135 Charlevoix, Voyage to North America, ii. 24 sq.

136 Hennepin, Description de la Louisiane, Les Mœurs des Sauvages, p. 71 sq.

137 Codrington, Melanesians, p. 218.

138 Dennett, in Jour. African Society, i. 276.

139 Merker, quoted by Kohler, in Zeitschr. f. vergl. Rechtswiss. xv. 64.

140 Decle, Three Years in Savage Africa, p. 154.

141 Burton, Lake Regions of Central Africa, ii. 320.

142 ʿAbdssalam 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 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

143 Cf. Tylor, Primitive Culture, ii. 128.

144 Andree, Ethnographische Parallelen, Neue Folge, p. 3.

145 von Martius, Beiträge zur Ethnographie Amerika’s, i. 633.