if vicious buffaloes or cattle “be tied in the highway, where people are in the habit of passing and repassing, and gore or wound any person, the owner shall be fined one tahil and one paha, and pay the expense necessary for the cure of the wounded individual. Should he be gored to death, then the owner shall be fined according to the Diyat, because the owner is criminal in having tied the animal in an improper place.”9 In the Laws of Alfred it is said that, if a man have a spear over his shoulder and anybody stake himself on it, the man with the spear has to pay the wer.10 According to an ancient custom, in vogue in England as late as the thirteenth century, one who was accused of homicide was, before going to the wager of battle, expected to swear that he had done nothing through which the dead man had become “further from life and nearer to death”;11 and damages which the modern English lawyer would without hesitation describe as “too remote” were not too remote for the author of the so-called ‘Laws of Henry I.’12 “At your request I accompany you when you are about your own affairs; my enemies fall upon and kill me; you must pay for my death.13 You take me to see a wild beast show or that interesting spectacle a madman; beast or madman kills me; you must pay. You hang up your sword; some one else knocks it down so that it cuts me; you must pay.”14 In all these cases you did something that helped to bring about death or wound, and you are consequently held responsible for the mishap.
6 Pollock and Maitland, History of English Law before the Time of Edward I. ii. 470.
7 Emin Pasha in Central Africa, p. 83.
8 Decle, Three Years in Savage Africa, p. 487.
9 Newbold, British Settlements in the Straits of Malacca, ii. 256 sq.
10 Laws of Alfred, 36.
11 Leges Henrici I. xc. 11. Bracton, op. cit. fol. 141 b, vol. ii. 440 sq.
12 Pollock and Maitland, op. cit. ii. 470 sq.
13 Leges Henrici I. lxxxviii. 9.
14 Ibid. xc. 11. Pollock and Maitland, op. cit. ii. 471.
But though early custom and law may be anxious enough to trace an event to its source, they easily fail to distinguish between external and internal causes, to discover where there is guilt or not, and, in case of carelessness, to determine the magnitude of the offender’s guilt. Ancient Teutonic law, as we have seen, distinguished between vili and vadhi. It punished the involuntary manslayer less heavily than the voluntary one, but it punished him all the same; and whether the unintended deed was combined with heedlessness or was purely accidental was a question with which the law did not at all concern itself.15 According to the Laws of Ḫammurabi, “if the doctor has treated a gentleman for a severe wound with a lancet of bronze, and has caused the gentleman to die, or has opened an abscess of the eye for a gentleman with the bronze lancet and has caused the loss of the gentleman’s eye, one shall cut off his hands.”16 In the Mosaic law distinction was made between presence and absence of enmity in the manslayer, but the difference between carelessness and misfortune was not considered,17 except when the instrument of death was a goring ox.18 However, in this, as in many other respects, great progress was made by the later legislation of the Jews. The Rabbis took considerable pains to distinguish between purely accidental homicide and homicide due to carelessness; the former they exempted from all punishment, whereas the latter incurred the punishment of confinement to a city of refuge.19 They even distinguished between cases in which the death was exclusively due to the carelessness of the agent, and cases in which the deceased contributed to it by some blamable act of his own. A father or a teacher who in punishing his son or pupil unintentionally caused his death, and a person who by order of the Sanhedrim inflicted corporal punishment on a culprit and in doing so happened by mistake to kill him—such persons were not confined in a city of refuge, but escaped punishment altogether.20 Whatever else may be said of these provisions, they certainly show remarkable discernment in a point where legislators of a ruder type have been very indiscriminate. In the oldest English records we see no attempt to distinguish cases in which the dead man himself was reprehensible from others in which no fault could be imputed to him, and we find that many horses and boats bore the guilt which should have been ascribed to beer.21 When a drunken carter was crushed beneath the wheel of his cart, the cart, the cask of wine which was in it, and the oxen that were drawing it, were all deodand.22 According to the customary law of the Ossetes, if a stolen gun went off in the hands of the thief who was carrying it away, and killed him, the thief’s kin had a just feud against the owner of the gun.23
15 Wilda, Strafrecht der Germanen, p. 578. Geyer, op. cit. p. 88. Brunner, Forschungen zur Geschichte des deutschen und französischen Rechtes, p. 499.
16 Laws of Ḫammurabi, 218.
17 Numbers, xxxv. 16 sqq. Deuteronomy, xix. 4 sqq.
18 Exodus, xxi. 28–32, 35 sq. Cf. Laws of Ḫammurabi, 250 sqq.
19 Rabbinowicz, Législation criminelle du Talmud, p. 173 sqq.
20 Ibid. p. 174. Benny, Criminal Code of the Jews according to the Talmud Massecheth Synhedrin, p. 115 sq.
21 Pollock and Maitland, op. cit. ii. 474, n. 4.
22 Three Early Assize Rolls for the County of Northumberland, p. 96 sq.
23 Kovalewsky, Coutume contemporaine, p. 295.
Modern