cit. ii. 471.
Among the Kandhs “similar compensation is made in all cases both of excusable homicide and of manslaughter.”14 And the same is said to be the case among various other savages or barbarians.15
14 Macpherson, Memorials of Service in India, p. 82.
15 Crawfurd, History of the Indian Archipelago, iii. 123. Ellis, Ew̔e-speaking Peoples of the Slave Coast, p. 223. Munzinger, Ostafrikanische Studien, p. 502 (Barea and Kunáma).
However, this want of discrimination between intentional and accidental injuries is not restricted to cases of revenge or compensation. Early punishment is sometimes equally indiscriminate.
Among the Káfirs of the Hindu-Kush, “murder, justifiable homicide, and killing by inadvertence in a quarrel, are all classed as one crime, and punished in the same way. Extenuating circumstances are never considered. The single question asked is, Did the man kill the other? The penalty is an extremely heavy blood-ransom to the family of the slain man, or perpetual exile combined with spoliation of the criminal’s property.”16 Parkyns tells us the following story from Abyssinia:—A boy who had climbed a tree, happened to fall down right on the head of his little comrade standing below. The comrade died immediately, and the unlucky climber was in consequence sentenced to be killed in the same way as he had killed the other boy, that is, the dead boy’s brother should climb the tree in his turn, and tumble down on the other’s head till he killed him.17 The Cameroon tribes do not recognise the circumstance of accidental death:—“He who kills another accidentally must die. Then, they say, the friends of each are equal mourners.”18 Among the negroes of Accra, according to Monrad, accidental homicide is punished as severely as intentional.19
16 Scott Robertson, Káfirs of the Hindu-Kush, p. 440.
17 Parkyns, Life in Abyssinia, ii. 236 sqq.
18 Richardson, ‘Observations among the Cameroon Tribes of West Central Africa,’ in Memoirs of the International Congress of Anthropology, Chicago, p. 203. See also Leuschner, in Steinmetz, Rechtsverhältnisse, p. 24 (Bakwiri); ibid. p. 51 (Banaka and Bapuku).
19 Monrad, Guinea-Kysten og dens Indbyggere, p. 88.
Yet it would obviously be a mistake to suppose that, at early stages of civilisation, people generally look only at the harm done, and not in the least at the will of him who did it. Even in the system of private redress we often find a distinction made between intentional or foreseen injuries on the one hand, and unintentional and unforeseen injuries on the other. In many instances, whilst blood-revenge is taken for voluntary homicide, compensation is accepted for accidental infliction of death.20 And sometimes the chief or the State interferes on behalf of the involuntary manslayer, protecting him from the persecutions of the dead man’s family.
20 Cf. Kohler, Shakespeare vor dem Forum der Jurisprudenz, p. 188, n. 1.
Among the African Wapokomo intention makes a difference in the revenge.21 Among the Papuans of the Tami Islands blood-revenge is common in the case of murder, but is not exacted in the case of accidental homicide; the involuntary manslayer has only to pay a compensation and to leave the community for a certain length of time.22 Among the Namaqua Hottentots custom demands that compensation should be accepted for unintentional killing.23 We meet with the same principle among the Albanians24 and the Slavs,25 in the past history of other European peoples,26 in ancient Yucatan,27 and in the religious law of Muhammedanism.28 Among the Kabyles of Algeria, “si les mœurs n’autorisent jamais la famille victime d’un homicide volontaire à amnistier un crime, elles lui permettent presque toujours de pardonner la mort qui ne résulte que d’une maladresse ou d’un accident.” They have a special ceremony by which the family of the deceased grant pardon to the involuntary manslayer, but the pardon must be given unanimously. The manslayer then becomes a member of the kharuba, or gens, of the deceased.29 Among the Omahas, “when one man killed another accidentally, he was rescued by the interposition of the chiefs, and subsequently was punished as if he were a murderer, but only for a year or two.”30 The ancient law of the Hebrews, which recognised the right and duty of private revenge in cases of intentional homicide, laid down special rules for homicide by misfortune. He who killed another unawares and unwittingly might flee to a city of refuge, where he was protected against the avenger of blood as long as he remained there.31 In ancient Rome the involuntary manslayer seems to have been exposed to the blood-feud until a law attributed to Numa ordained that he should atone for the deed by providing a ram to be sacrificed in his place.32
21 Kraft, in Steinmetz, Rechtsverhältnisse, p. 292.
22 Bamler, quoted by Kohler, in Zeitschr. f. vergl. Rechtswiss. xiv. 380.
23 Fritsch, Die Eingeborenen Süd-Afrika’s, p. 363.
24 Gopčević, Oberalbanien und seine Liga, p. 327.
25 Miklosich, ‘Blutrache bei den Slaven,’ in Denkschriften der kaiserl. Akademie der Wissensch. Philos.-histor. Classe, Vienna, xxxvi. 131.
26 Leist, Græco-italische Rechtsgeschichte, p. 324. Ancient Laws of Ireland, iii. p. cxxiv. For the ancient Teutons, see infra, p. 226.
27 de Landa, Relacion de las cosas de Yucatan, p. 134.
28 Koran, iv. 94. Cf. Sachau, Muhammedanisches Recht nach Schafiitischer Lehre, p. 761 sq.