target="_blank" rel="nofollow" href="#ulink_e380f698-63d3-50b0-ba0f-ec5d57e7c38e">36 Among the Murray Islanders repetition of an offence such as murder or robbery generally incurred a penalty of death, whereas the first offence was punished only by a fine.37 According to the Javanese Níti Sástra, if a man violates the law, he may for the first transgression be punished by a pecuniary fine, for the second by a punishment affecting his person, but for the third he may be punished with death.38 The Penal Code of the Chinese prescribes that, for the first offence, individuals convicted of being concerned in a theft shall be branded in the lower part of the left arm with two words signifying thief, that for the second offence they shall be branded again with the same words in the lower part of the right arm, but that for the third offence they shall suffer death by being strangled, after remaining the usual period in confinement.39 In Nepal, in the case of theft or petty burglary, for the first offence one hand is cut off, for the second the other hand, whilst the third offence is capital.40 Herodotus mentions with approval that in ancient Persia not even the king was allowed to put any one to death for a single crime.41 According to the Vendîdâd, the gravity of a crime does not depend only on the gravity of the deed, but on its frequency as well.42 In ancient Rome the repetition of a crime aggravated its punishment.43 According to early English law, the punishment upon a second conviction for nearly every offence was death or mutilation.44 In modern European legislation, the principle that the criminality of certain crimes is increased by their repetition is generally recognised.
29 Hinde, The Last of the Masai, p. 108.
30 Decle, op. cit. p. 487.
31 Powell, ‘Wyandot Government,’ in Ann. Rep. Bur. Ethn. i. 66.
32 Herrera, General History of the West Indies, iv. 338 sqq.
33 Ibid. iii. 255.
34 Veniaminof, quoted by Petroff, ‘Report on Alaska,’ in Tenth Census of the United States, p. 152.
35 Krasheninnikoff, History of Kamschatka, p. 179.
36 Batchelor, Ainu and their Folk-lore, p. 285.
37 Hunt, in Jour. Anthr. Inst. xxviii. 6.
38 Raffles, History of Java, i. 262.
39 Ta Tsing Leu Lee, sec. cclxix. p. 285.
40 Hodgson, Miscellaneous Essays, ii. 235.
41 Herodotus, i. 137.
42 Vendîdâd, iv. 17 sqq.
43 Mommsen, Römisches Strafrecht, p. 1044.
44 Stephen, op. cit. i. 58.
The more a moral judgment is influenced by reflection, the more it scrutinises the character which manifests itself in that individual piece of conduct by which the judgment is occasioned. But however superficial it be, it always refers to a will conceived of as a continuous entity, to a person regarded as a cause of pleasure or pain. This holds good of savage and civilised men alike. Even tame animals, in response to a hurt or a benefit, behave differently towards different persons according to their previous experience of the agent.
CHAPTER XIII
WHY MORAL JUDGMENTS ARE PASSED ON CONDUCT AND CHARACTER—MORAL VALUATION AND FREE-WILL
WE have examined the general nature of the subjects of moral judgments from an evolutionary point of view. We have seen that such judgments are essentially passed on conduct and character, and that allowance is made for the various elements of which conduct and character are composed in proportion as the moral judgment is scrutinising and enlightened. But an important question still calls for an answer, the question, Why is this so? We cannot content ourselves with the bare fact that nothing but the will is morally good or bad. We must try to explain it.
After what has been said above the explanation is not far to seek. Moral judgments are passed on conduct and character, because such judgments spring from moral emotions; because the moral emotions are retributive emotions; because a retributive emotion is a reactive attitude of mind, either kindly or hostile, towards a living being (or something looked upon in the light of a living being), regarded as a cause of pleasure or as a cause of pain; and because a living being is regarded as a true cause of pleasure or pain only in so far as this feeling is assumed to be caused by its will. The correctness of this explanation I consider to be proved by the fact that not only moral emotions, but non-moral retributive emotions as well, are felt with reference to phenomena exactly similar in nature to those on which moral judgments are passed.
Like moral indignation, the emotion of revenge can be felt only towards a sentient being, or towards something which is believed to be sentient. We may be angry with inanimate things for a moment, but such anger cannot last; it disappears as soon as we reflect that the thing in question is incapable of feeling pain. Even a dog which, in playing with another dog, hurts itself, for instance, by running into a tree, changes its angry attitude immediately it notices the real nature of that which caused it pain.1
1 Hiram Stanley, Studies in the Evolutionary Psychology of Feeling, p. 154 sq.
Equivalent to injuries resulting from inanimate things are injuries resulting accidentally from animate beings. If my arm or my foot gives a push to my neighbour, and he is convinced that the push was neither intended nor foreseen nor due to any carelessness whatever on my part, surely he cannot feel angry with me. Why not? Professor Bain answers this question as follows:—“Aware that absolute inviolability is impossible in this world, and that we are all