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