out. Delinquens per iram provocatus puniri debet mitius.”106 Hume says that in Scotland “the manslayer on suddenty was to have the benefit of the girth or sanctuary: he might flee to the church or other holy place; from which he might indeed be taken for trial, but to be returned thither, safe in life and limb, if his allegation of chaude melle were proved.”107 All modern codes regard provocation under certain circumstances as a mitigating circumstance.108 According to the criminal law of Montenegro, great provocation may even relieve a homicide of all guilt.109
98 Kovalewsky, Coutume contemporaine, p. 291.
99 Ancient Laws of Ireland, iii. pp. xciii. cx.
100 Wilda, op. cit. p. 560 sqq., 701. Stemann, op. cit. p. 574. von Amira, in Paul’s Grundriss der germanischen Philologie, ii. pt. ii. 174.
101 Wilda, op. cit. p. 569. von Amira, loc. cit. p. 173.
102 Das Ostfriesische Land-Recht, iii. 17 sq.
103 Cf. Stephen, op. cit. iii. 33.
104 Beaumanoir, Coutumes du Beauvoisis, xxx. 101, vol. i. 454 sq.
105 Gregory III. Judicia congrua penitentibus, 3 (Labbe-Mansi, op. cit. xii. 289).
106 Coke, Third Institute, p. 55.
107 Hume, Commentaries on the Law of Scotland, i. 365.
108 Günther, op. cit. iii. 256 sqq.
109 Ibid. iii. 255 sq.
It has been said that a man who acts under the influence of great passion has not, at the time, a full knowledge of the nature and quality of his act, and that the clemency of the law is “a condescension to the frailty of the human frame, to the furor brevis, which, while the frenzy lasteth, rendereth the man deaf to the voice of reason.”110 But the main cause for passion extenuating his guilt is not the intellectual disability under which he acts, but the fact that he is carried away by an impulse which is too strong for his will to resist. This is implied in the provision of the law, that “provocation does not extenuate the guilt of homicide unless the person provoked is at the time when he does the act deprived of the power of self-control by the provocation which he has received.”111
110 Foster, Report of Crown Cases, p. 315.
111 Stephen, Digest, art. 246, p. 188.
That anger has been so generally recognised as an extenuation of guilt is largely due to the fact that the person who provokes it is himself blamable; both morality and law take into consideration the degree of provocation to which the agent was exposed. But, at the same time, the pressure of a non-volitional motive on the will may by itself be a sufficient ground for extenuation. In certain cases of mental disease a morbid impulse or idea may take such a despotic possession of the patient as to drive him to the infliction of an injury. He is mad, and yet he may be free from delusion and exhibit no marked derangement of intelligence. He may be possessed with an idea or impulse to kill somebody which he cannot resist. Or he may yield to a morbid impulse to steal or to set fire to houses or other property, without having any ill-feeling against the owner or any purpose to serve by what he does.112 The deed to which the patient is driven is frequently one which he abhors, as when a mother kills the child which she loves most.113 In such cases the agent is of course acquitted by the moral judge, and if he is condemned by the law of his country and its guardians, the reason for this can be nothing but ignorance. We must remember that this form of madness was hardly known even to medical men till the end of the 18th century,114 when Pinel, to his own surprise, discovered that there were “many madmen who at no period gave evidence of any lesion of the understanding, but who were under the dominion of instinctive and abstract fury, as if the affective faculties had alone sustained injury.”115 And there can be no doubt that the fourteen English judges who formulated the law on the criminal responsibility of the insane, made no reference to this manie sans délire simply because they had not sufficient knowledge of the subject with which they had to deal.116
112 Maudsley, Responsibility in Mental Disease, p. 133 sqq. von Krafft-Ebing, Lehrbuch der gerichtlichen Psychopathologie, p. 308 sqq.
113 Gadelius, Om tvångstankar, p. 168 sq. Paulhan, L’activité mentale, p. 374.
114 Maudsley, op. cit. p. 141.
115 Pinel, Traité médico-philosophique sur l’aliénation mentale, p. 156: “Je ne fut pas peu surpris de voir plusieurs aliénés qui n’offroient à aucune époque aucune lésion de l’entendement, et qui étoient dominés par une sorte d’instinct de fureur, comme si les facultés affectives seules avoient été lésées.”
116 Sir James Stephen (Digest, art. 28, p. 20 sq.) thinks it possible that, according to the present law of England, an act is not criminal if the person who does it is, at the time when it is done, prevented by any disease affecting his mind from controlling his own conduct, unless the absence of the power of control has been produced by his own default.
That moral judgments are generally passed, in the first instance, with reference to acts immediately intended, and consider motives only in proportion as the judgment is influenced by reflection, holds good, not only of moral blame, but of moral praise. Every religion presents innumerable examples of people who do “good deeds” only in expectation of heavenly reward. This implies the assumption that the Deity judges upon actions without much regard to their motives; for if motives were duly considered, a man could not be held rewardable for an act which he performs solely for his own benefit. We are told that the homage which the Chinese “render the gods and goddesses