through want of ordinary care and foresight, and it depends on the nature of the case whether he will have to pay damages or to suffer punishment. Yet, as we have previously noticed, his punishment is determined not only by the degree of carelessness of which he was guilty or the danger to which he exposed his fellow-men, but, largely, by the harm resulting; whereas, if nobody happens to be hurt, little notice is taken of his fault. To such an extent are men’s judgments in these matters influenced by external facts, that even nowadays many among ourselves will hold a person answerable for all the damage which directly ensues from an act of his, even though no foresight could have reasonably been expected to look out for it.24 Not long ago there were plausible, if insufficient, grounds adduced for asserting that in English courts a plea that there was neither negligence nor an intent to do harm was no answer to an action which charged the defendant with having hurt the plaintiff’s body.25 And of late years attacks have been made by continental jurists upon the Roman principle that there is no liability where there is no fault26—a principle which, more or less modified, has been adopted by modern laws.27 Although they take pains to point out the difference between punishment and indemnification, the very language they use indicates the quasi-ethical basis on which their theory rests. It is only just, they say, that he who has caused the evil should compensate for it, since the injured party “is still much more innocent than he.” And the “sense of justice” is appealed to for compelling a man who faints in the street and in the fall happens to break some fragile articles to indemnify the owner for his loss.28 Thus, whilst loss from accident is generally allowed to lie where it falls, an exception is made where the instrument of misfortune is a human being. This is a most unreasonable exception, but one not difficult to explain. People are ready to blame a person who commits a harmful deed, whether he deserves blame or not; at the same time they are apt to overlook the indirect and more remote cause of the harm which lies in the sufferer’s own conduct. Hence the liability, if not the guilt, is laid on him who is a cause of pain by doing something, even though it be by merely spasmodic contractions of his muscles; whereas the other party, who only exposed himself to the risk of being hurt, is regarded as the “more innocent.”
24 Holmes, Common Law, p. 80.
25 Stanley v. Powell, in Law Reports, Queen’s Bench Division, 1891, i. 86 sqq. Pollock and Maitland, op. cit. ii. 475 sq.
26 von Jhering, Schuldmoment im römischen Privatrecht, passim, especially pp. 20 sqq., 40 sqq. Hepp, op. cit. p. 106.
27 Forsman, Bidrag till läran om skadestånd i brottmål, p. 158 sq. Pollock, Law of Torts, p. 129 sqq.
28 Thon, Rechtsnorm und subjectives Recht, p. 106, n. 71.
Whilst culpability or quasi-culpability is thus imputed to the innocent committer of a harmful deed, little or no censure is passed on him whose want of foresight or want of self-restraint is productive of suffering, if only the effect is sufficiently remote. This is exemplified by the frivolous leniency with which drunkenness, not long ago, was looked upon in many civilised countries, and by the criminal indifference with which law and public opinion still regard the production of offspring that are almost with certainty doomed to misery on account of the vices, poverty, or bodily infirmities of the parents. To interfere here, it is argued, would be to intrude upon the individual’s right of freedom, or to meddle with the affairs of Providence. But men are not, generally, allowed to do mischief simply in order to gratify their own appetites, and Providence might equally well be called in to answer for any other kind of human shortcoming. I presume the true explanation to be, that in this, as in many other kindred cases, the cause and effect are so distant from each other that the near-sighted eye does not distinctly perceive the connection between them. Indeed, there is hardly any other point in which the moral consciousness of civilised men still stands in greater need of intellectual training than in its judgments on cases which display want of care or foresight. And there is no safer measure of the moral enlightenment of a man than the scrupulosity with which he considers the possible consequences of acts, and the number of positive commandments which are contained in his catalogue of duties.
That moral indignation and moral approval are from the very beginning felt, not with reference to certain modes of conduct per se, but with reference to persons on account of their conduct, is obvious from the intrinsic nature of those emotions. As we noticed before, they derive one of their most essential characteristics from their being directed against sensitive agents. Hence they may as naturally give rise to judgments on human character as to judgments on human conduct. And even when a moral judgment immediately refers to a distinct act, it takes notice of the agent’s will as a whole. The forgiveness which follows sincere repentance, and the distinction made between injuries committed deliberately in cold blood and injuries committed in the heat of passion, indicate that men, in their moral judgments, are apt to consider something more than a momentary volition. The same tendency is at the bottom of the common practice of punishing a second and third offence more severely than the first.
Among the Masai, “if a man is convicted of a particular crime several times, or constitutes himself a public nuisance, he is proclaimed an outlaw, his property is confiscated, and he is beaten away from any settlement or village he goes near. Unless an outlaw can find friends among non-Masai tribes, he dies of starvation.”29 Among the Wakamba “a murder is judged by the elders; if it is a man’s first offence of that kind he is punished by a fine. … But a man convicted for the second time of murder is killed at once, everyone setting on him the moment judgment is delivered. … For rape a first offender is flogged, and has to pay a fine of one cow; for the second offence he is killed.”30 Among the Wyandots of North America, “a woman guilty of adultery, for the first offence is punished by having her hair cropped; for repeated offences her left ear is cut off.”31 The laws of the Incas, also, were more lenient to a first offence than to a second;32 and in the kingdom of Mechoacan, whilst the first theft was not severely punished, the thief who repeated his crime was thrown down a precipice and his carcass was left to the birds of prey.33 Among the Aleuts, for the first theft “corporal punishment was inflicted; for the second offence of the kind some fingers of the right hand were cut off; for the third, the left hand and sometimes the lips were amputated; and for the fourth offence the punishment was death.” Other crimes, again, “were punished at first by reprimand by the chief before the community, and upon repetition the offender was bound and kept in such a condition for some time.”34 The Kamchadales “burn the hands of people who have been frequently caught in theft, but for the first offence the thief must restore what he hath stolen, and live alone in solitude, without expecting any assistance from others.”35 Among the Ainu, “for breaking into the storehouse or dwelling of another, a very sound beating was administered for the first offence; for the second, sometimes the nose was cut off, sometimes the ears, and in some cases both the nose and ears were forfeited. … Persons who had committed such a crime twice were driven bag and baggage out of the home and village to which