Читать книгу The Origin and Development of the Moral Ideas - Edward Westermarck - Страница 96

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NO enlightened and conscientious moral judge can regard his judgment as final, unless he know the motive, or motives, of the volition by which his judgment is occasioned. But in ordinary moral estimates little attention is paid to motives. Men desire that certain acts should be performed, and that certain other acts should be abstained from. The conative causes of acts or forbearances are not equally interesting, and they are often hidden. They are considered only in proportion as the moral judgment is influenced by reflection.

Take, for instance, acts which are performed from a sense of duty. It is commonly said that a person ought to obey his conscience. Yet, in point of fact, by doing so he may expose himself to hardly less censure than does the greatest villain. The reason for this is not far to seek. A man’s moral conviction is to some extent an expression of his character, hence he may be justly blamed for having a certain moral conviction. And the blame which he may deserve on that account is easily exaggerated, partly because people are apt to be very intolerant concerning opinions of right and wrong which differ from their own, partly owing to the influence which external events exercise upon their minds.

Somewhat greater discrimination is shown in regard to motives consisting of powerful non-volitional conations which in no way represent the agent’s character, but to which he yields reluctantly, or by which he is carried away on the spur of the moment. In many such cases even the law—which regards it as no excuse if a person commits a crime from a feeling of duty1—displays more or less indulgence to the perpetrator of a harmful deed.

1 Cf. the case Reg. v. Morby, Law Reports, Cases determined in the Queen’s Bench Division, viii. 571 sqq.

Thus, in the eye of the law, compulsion is oftentimes a ground of extenuation. Strictly speaking, a volition can never be compelled into existence;2 to act under compulsion really means to act under the influence of some non-voluntary motive, so powerful that every ordinary human will would yield to it. As Aristotle puts it, pardon is given when “a man has done what he ought not to have done through fear of things beyond the power of human nature to endure, and such that no man could undergo them. And yet, perhaps, there are some things which a man must never allow himself to be compelled to do, but must rather choose death by the most exquisite torments.”3 This principle has been in some degree recognised by legislation. In many cases of felony, if a married woman commits the crime in the presence of her husband, the law of England presumes that she acts under his coercion, and therefore excuses her from punishment, unless the presumption of law is rebutted by evidence;4 but children and servants are not acquitted if committing crimes by the command of a parent or a master.5 Besides the presumption made in favour of married women, compulsion by threats of injury to person or property is recognised as an excuse for crime only, as it seems, in cases in which the compulsion is applied by a body of rebels or rioters, and in which the offender takes a subordinate part in the offence.6 In a time of peace, on the other hand, though a man be violently assaulted, and have no other possible means of escaping death but by killing an innocent person, if he commit the act he will be guilty of murder; “for he ought rather to die himself, than kill an innocent.”7 It has even been laid down as a general principle that “the apprehension of personal danger does not furnish any excuse for assisting in doing any act which is illegal.”8 But the English law relating to duress per minas, and to constraint in general, seems to be harsher both than most modern continental laws9 and than Roman law.10 Some of the Italian practitioners were even of opinion that a person who committed homicide by the command of his prince or some other powerful man was exempt from all punishment.11 According to the Talmud, any offence perpetrated under compulsion or in mortal fear is excusable in the eye of the law, excepting only murder and adultery.12

2 Bradley, Ethical Studies, p. 40, n. 1.

3 Aristotle, Ethica Nicomachea, iii. i. 7 sq.

4 Hale, History of the Pleas of the Crown, i. 44 sqq. 434. Harris, Principles of the Criminal Law, p. 25. Stephen, History of the Criminal Law of England, ii. 105 sq.

5 Hale, op. cit. i. 44. Harris, op. cit. p. 26.

6 Stephen, op. cit. ii. 106.

7 Hale, op. cit. i. 51. Harris, op. cit. p. 24 sq.

8 Denman, C. J., in Reg. v. Tyler, reported in Carrington and Payne, Reports of Cases argued and ruled at Nisi Prius, viii. 621.

9 Code Pénal, art. 64; Chauveau and Hélie, Théorie du Code Pénal, i. 534 sqq. Italian Codice Penale, art. 49. Spanish Código Penal reformado, art. 8, § 9 sqq. Finger, Compendium des österreichischen Rechtes—Das Strafrecht, i. 119. Foinitzki, in Législation pénale comparée, edited by von Liszt, p. 530 (Russian law). Ottoman Penal Code, art. 42.

10 Mommsen, Römisches Strafrecht, p. 653. Janka, Der strafrechtliche Notstand, p. 48.

11 Janka, op. cit. p. 60. A different view, however, is expressed by Covarruvias (De matrimoniis, ii. 3. 4. 6 sq. [Opera omnia, i. 139]):—“Metus numquam excusat nec a mortali, nec a veniali crimine. Peccatum maximum malum, nec eo quid grauius.”

12 Benny, Criminal Code of the Jews according to the Talmud Massecheth Synhedrin, p. 125.

Suppose, again, that the motive of breaking the law is what has been called “compulsion by necessity.” The old instance of shipwrecked persons in a boat unable to carry them all is a standing illustration of this principle. Sir James Stephen says, that “should such a case arise, it is impossible to suppose that the survivors would be subjected to legal punishment.”13 Yet, in a very similar case, occurring in the year 1884, they were. Three men and a boy escaped in an open boat from the shipwreck of the yacht Mignonette. After passing eight days without food, and seeing no prospect of relief, the men killed the boy, who was on the verge of death, in order to feed on his body. Four days later they were rescued by a passing ship; and, on their arrival in England, two of the men were tried for the murder of the boy. The defence raised was that the act was necessary for the purpose of self-preservation. But it was held by the Court for Crown Cases Reserved, that such necessity was no justification of the act of causing death when there was a distinct intention to take away the life of another innocent person. However, the sentence of death was afterwards commuted by the Crown to six months’ imprisonment.14 In the same case it was even said that if the boy had had food in his possession, and the others had taken it from him, they would have been guilty of theft.15 Bacon’s proposition that “if a man steal viands to satisfy his present hunger, this is no felony nor larceny,”16 is not law at the present day.17 It was expressly contradicted by Hale, who lays down the following rule:—“If a person, being under necessity for want of victuals, or clothes, shall upon that account clandestinely, and animo furandi steal another man’s goods, it is felony and a crime by the laws of England punishable with death; altho the judge, before whom the trial is, in this case (as in other cases of extremity) be by the laws of England intrusted with a power to reprieve the offender before or after judgment, in order to the obtaining the king’s mercy.”18 Britton excuses “infants under age, and poor people, who through hunger enter the house of another for victuals under the value of twelve pence.”19 According to the Swedish Westgöta-Lag, a poor man who can find no other means of relieving himself and his family from hunger may thrice with impunity appropriate food belonging to somebody else, but if he does so a fourth time he is punished for theft.20 The Canonist says, “Necessitas legem non habet”21—“Raptorem vel furem non facit necessitas, sed voluntas.”22 This principle has the sanction of the Gospel. Jesus said to the Pharisees, “Have ye not read what David did, when he was an hungered, and they that were with him; How he entered into the house of God, and did eat the shewbread, which was not lawful for him to eat, neither for them which were with him, but only for the priests?”23

13 Stephen, op. cit. ii. 108. So, also, according to Bacon’s Maxims of the Law, reg. 5 (Works, vii. 344), homicide is in such a case justifiable.

14 Reg. v. Dudley and Stephens, in Law Reports, Cases determined in the Queen’s Bench Division, xiv. 273 sqq.

15 Ibid. xiv. 276.

16 Bacon, Maxims of the Law, reg. 5 (Works, vii. 343).

17 Reg. v. Dudley and Stephens, in Law Reports, Queen’s Bench Division, xiv. 286.

18 Hale, op. cit. i. 54.

19 Britton, i. 11, vol. i. 42.

20 Westgöta-Lagen II. þiufua bolker, 14, p. 164 sq.

21 Gratian, Decretum, iii. 1. 11.

22 Ibid. iii. 5. 26.

23 St. Matthew, xii. 1 sqq.

According to Muhammedan law, the hand is not to be cut off for stealing any article of food that is quickly perishable, because it may have been taken to supply the immediate demands of hunger.24 We are told that “no Chinese magistrate would be found to pass sentence upon a man who stole food under stress of hunger.”25 In ancient Peru, according to Herrera, “he that robb’d without need was banish’d to the Mountains Andes, never to return without the Inga’s leave, and if worth it paid the value of what he had taken. He that for want stole eatables only was reprov’d, and receiv’d no other punishment, but enjoyn’d to work, and threatened, that if he did so again, he should be chastiz’d by carrying a stone on his back, which was very disgraceful.”26 We even hear of savages who regard “compulsion by necessity” as a ground of extenuation. Among the West African Fjort robbery of plantations, committed in a state of great hunger, is exempt from punishment in case there is no deception or secrecy in the matter; however, payment for damage done is expected.27 Cook says of the Tahitians:—“Those who steal clothes or arms, are commonly put to death, either by hanging or drowning in the sea; but those who steal provisions are bastinadoed. By this practice they wisely vary the punishment of the same crime, when committed from different motives.”28

24 Lane, Manners and Customs of the Modern Egyptians, p. 121.

25 Giles, Strange Stories from a Chinese Studio, ii. 217, n. 5.

26 Herrera, General History of the West Indies, iv. 337.

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

28 Cook, Journal of a Voyage round the World, p. 41 sq.

A special kind of self-preservation is self-defence. Here the ground of justification is not merely the motive of the agent, but also the wrongness or criminality of the act which he tries to prevent. Hence the right of inflicting injuries as a necessary means of self-preservation has been more generally recognised in the case of self-defence than in other cases of “compulsion by necessity.” “Vim vi repellere” was regarded by the ancients as a natural right,29 as a law “non scripta, sed nata”;30 and the same view was taken by the Canonist.31 Even in the savage world self-defence and killing in self-defence are not infrequently justified by custom.32 But in other instances the influence of the external event makes itself felt also in the case of self-defence. Among the Fjort, though a person who kills another in self-defence is exempt from punishment, he is expected to pay damages.33 Among the Hottentots self-defence is regarded as a mitigating circumstance, but not as an excuse in the full sense of the word.34 Among other peoples it is not considered at all.35 Among the ancient Teutons a person who committed homicide in self-defence had to pay wer;36 and in Germany such a person seems to have been subject to punishment still in the later Middle Ages.37 In England, in the thirteenth century, he was considered to deserve royal pardon, but he also needed it.38

29 Digesta, xliii. 16. i. 27: “Vim vi repellere licere Cassius scribit idque ius natura comparatur.”

30 Cicero, Pro Milone, 4 (10).

31 Gratian, Decretum, i. 1. 7.

32 Merker, quoted by Kohler, in Zeitschr. f. vergl. Rechtswiss. xv. 64 (Wadshagga). Lang, in Steinmetz, Rechtsverhältnisse, p. 257 (Washambala).

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

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

35 Steinmetz, Rechtsverhältnisse, p. 50 (Banaka and Bapuku). Tellier, ibid. p. 176 (Kreis Kita). Marx, ibid. p. 357 (Amahlubi). Senfft, ibid. p. 450 (Marshall Islanders).

36 Geyer, Lehre von der Nothwehr, p. 88 sqq. Trummer, Vorträge über Tortur, &c. i. 430. Stemann, Den danske Retshistorie indtil Christian V.’s Lov, p. 659. Cf. Leges Henrici I. lxxx. 7; lxxxvii. 6.

37 Trummer, op. cit. i. 428 sqq. von Feuerbach-Mittermaier, Lehrbuch des Peinlichen Rechts, p. 64. Brunner observes (Deutsche Rechtsgeschichte, ii. 630), “Nicht das Benehmen des Getöteten war die causa des Todschlags, sondern nur die feindselige Absicht des Todschlagers.”

38 Bracton, De Legibus et Consuetudinibus Angliæ, fol. 132 b, vol. ii. 366 sqq. Pollock and Maitland, History of English Law before the Time of Edward I. ii. 574.

In self-defence there should of course be a proportion between the injury which the aggressor intended to inflict and the injury inflicted on him by the person attacked. The most widely-recognised ground on which life is allowed to be taken in self-defence is danger of death. But it is not the exclusive ground. Among the Wakamba “a thief entering a village at night can be killed”; though, if he is, the incident generally gives rise to a blood-feud between his family and the family of the slayer.39 In Uganda “there is no penalty for killing a thief who enters an enclosure at night”;40 and among various peoples at higher stages of culture we likewise find the provision that a nocturnal thief or house-breaker may be killed with impunity, though a diurnal thief may not.41 This law, however, seems to have been due not so much to the fact that by night the proprietor had less chance of recovering his property, as to the greater danger to which he was personally exposed.42 The Roman Law of the Twelve Tables allows the diurnal thief also to be killed, in case he defends himself with a weapon;43 and, as regards the nocturnal thief, Ulpian expressly says that the owner of the property is justified in killing him only if he cannot spare the life of the thief without peril to himself.44 The same rule was laid down by Bracton45 and by Grotius. The latter observes, “No one ought to be slain directly for the sake of mere things, which would be done if I were to kill an unarmed flying thief with a missile, and so recover my goods: but if I am myself in danger of life, then I may repel the danger even with danger to the life of another; nor does this cease to hold, however I have come into that danger, whether by trying to retain my property, or to recover it, or to capture the thief; for in all these cases I am acting lawfully according to my right.”46

39 Decle, Three Years in Savage Africa, p. 488.