target="_blank" rel="nofollow" href="#ulink_67975f9c-2bda-5157-b2e2-e9ed3c5625d7">82 Macdonald, Africana, i. 172.
83 Macpherson, op. cit. p. 82.
84 Georgi, Russia, iii. 83. Cf. also Turner, ‘Ethnology of the Ungava District,’ in Ann. Rep. Bur. Ethn. xi. 186.
Among the ancient Peruvians, “when one killed another in a quarrel, the first thing enquired into was, who had been the aggressor; if the dead man, then the punishment was slight, at the will of the Inga; but if the surviver had given the provocation, his penalty was death, or at least perpetual banishment to the Andes, there to work in the Inga’s fields of corn, which was like sending him to the galeys. A murderer was immediately publickly put to death, tho’ he were a man of quality.”85 Among the Mayas of Yucatan and Nicaragua, in case of great provocation or absence of malice, homicide was atoned by the payment of a fine.86
85 Herrera, op. cit. iv. 337 sq.
86 Bancroft, Native Races of the Pacific States, ii. 658.
From certain passages in the Mosaic law the conclusion has been drawn that the ancient Hebrews did not consider it obligatory to inflict death upon him who had killed his neighbour in a fit of passion.87 It is said that a man shall be put to death if he “come presumptuously upon his neighbour, to slay him with guile,”88 or if he “hate his neighbour, and lie in wait for him, and rise up against him, and smite him mortally that he die.”89 On the other hand, he shall be allowed a resort to a city of refuge if “he lie not in wait,”90 or if he thrust his neighbour “suddenly without enmity.”91
87 Goitein, Das Vergeltungsprincip im biblischen und taltmudischen Strafrecht, p. 33 sqq.
88 Exodus, xxi. 14.
89 Deuteronomy, xix. 11 sq.
90 Exodus, xxi. 13.
91 Numbers, xxxv. 22, 25.
Professor Leist suggests that in ancient Greece, at a time when blood-revenge was a sacred duty in the case of premeditated murder, homicide committed without premeditation could be forgiven by the avenger of blood.92 Plato, in his ‘Laws,’ draws a distinction between him “who treasures up his anger and avenges himself, not immediately and at the moment, but with insidious design, and after an interval,” and him “who does not treasure up his anger, and takes vengeance on the instant, and without malice prepense.” The deed of the latter, though not involuntary, “approaches to the involuntary,” and should therefore be punished less severely than the crime perpetrated by him who has stored up his anger.93 Aristotle, also, whilst denying that “acts done from anger or from desire are involuntary,”94 maintains that “assaults committed in anger, are rightly decided not to be of malice aforethought, for they do not originate in the volition of the man who has been angered, but rather in that of the man who so angered him.”95 And he adds that “everyone will admit that he who does a disgraceful act, being at the same time free from desire, or at any rate feeling desire but slightly, is more to be blamed than is he who does such an act under the influence of a strong desire; and that he who, when not in a passion, smites his neighbour, is more to be blamed than is he who does so when in a passion.”96 Cicero likewise points out that “in every species of injustice it is a very material question whether it is committed through some agitation of passion, which commonly is short-lived and temporary, or from deliberate, prepense, malice; for those things which proceed from a short, sudden fit, are of slighter moment than those which are inflicted by forethought and preparation.”97
92 Leist, Græco-italische Rechtsgeschichte, pp. 325, 352.
93 Plato, Leges, ix. 867.
94 Aristotle, Ethica Nicomachea, iii. 1. 21.
95 Ibid. v. 8. 9.
96 Ibid. vii. 7. 3.
97 Cicero, De officiis, i. 8.
Of ancient Russian law M. Kovalewsky observes, “L’existence d’une excitation violente est prise en considération, par notre antique législation, qui déclare le crime accompli sous leur influence non imputable.”98 According to ancient Irish law, “homicide was divisible into the two classes of simple manslaughter and murder, the difference between which lay in the existence or absence of malice aforethought, the fine in the latter being double what it was in the former case”; and for a wound which was inflicted inadvertently in lawful anger, the payment was made upon a diminished scale.99 The ancient Teutons, also, held a wrong committed in sudden anger and on provocation to be less criminal than one committed with premeditation in cold blood;100 this opinion seems partly to be at the bottom of the distinction which they made between open and secret homicide.101 According to the law of the East Frisians, a man who kills another without premeditation may buy off his neck with money, not so he who commits a murder with malice aforethought.102 It is curious that Bracton should take no notice of the different grades of evil intention which may accompany voluntary homicide, and that he should omit altogether the question of provocation;103 Beaumanoir, the French jurist, who lived in the same age, mentions in his ‘Coutumes du Beauvoisis’ provocation as an extenuating circumstance,104 and the same view was taken by the Church.105 Coke, in his Third Institute—which may be regarded as the second source of the criminal law of England, Bracton being the first—gives an account of malice aforethought, and adds, “Some manslaughters be voluntary,