href="#ulink_1e238041-5349-59ce-aa9a-67b771ae633d">29 Hanoteau and Letourneux, La Kabylie, iii. 68 sq.
30 Dorsey, ‘Omaha Sociology,' in Ann. Rep. Bur. Ethn. iii. 370.
31 Deuteronomy, iv. 42. Numbers, xxxv. 11 sqq. Joshua, xx. 3 sqq.
32 Servius, In Virgilii Bucolica, 43. Cf. von Jhering, Das Schuldmoment im römischen Privatrecht, p. 11.
Among some peoples who accept compensation even for wilful murder, the blood-price is lower if life is taken unintentionally.33
33 Beverley, in Steinmetz, Rechtsverhältnisse, p. 215 (Wagogo). Dareste, Nouvelles études d’histoire du droit, p. 237 (Swanetians of the Caucasus).
According to Bowdich, “a person accidentally killing another in Ahanta, pays 5 oz. of gold to the family, and defrays the burial customs. In the case of murder, it is 20 oz. of gold and a slave; or, he and his family become the slaves of the family of the deceased.”34 Ancient Irish law imposed an Eric fine for accidental or unintentional homicide, to be paid to the relatives of the dead man, whilst a double fine was due for homicide where anger was shown, i.e., where probably there was what we should call “malice.”35
34 Bowdich, Mission from Cape Castle to Ashantee, p. 258, n. ‡.
35 Cherry, Growth of Criminal Law in Ancient Communities, p. 22.
In the punishments inflicted by many savages, a similar distinction is made between intentional and accidental harm, although, at the same time, some degree of guilt is frequently imputed to persons who, in our opinion, are perfectly innocent.
Speaking of the West Australian aborigines, Sir G. Grey observes:—“If a native is slain by another wilfully, they kill the murderer, or any of his friends they can lay hands on. If a native kills another accidentally, he is punished according to the circumstances of the case.” And the punishment may be severe enough. “For instance, if, in inflicting spear wounds as a punishment for some offence, one of the agents should spear the culprit through the thigh, and accidentally so injure the femoral artery that he dies, the man who did so would have to submit to be speared through both thighs himself.”36 In New Guinea, according to Dr. Chalmers, murder is punished capitally, whereas a death caused by accident is expiated by a fine.37 Among the Mpongwe, “except in the case of a chief or a very rich man, little or no difference is made between wilful murder, justifiable homicide, and accidental manslaughter.”38 Kafir law seems to demand no compensation for what is clearly proved to have been a strictly accidental injury to property, but the case is different in regard to accidental injuries to persons, if the injury be of a serious nature. Thus “it seems to make little or no distinction between wilful murder and any other kind of homicide; unless it be, perhaps, that in purely accidental homicide the full amount of the fine may not be so rigidly insisted upon.”39 Among the A-lūr, in the case of accidental injuries, a compensation is paid to the injured party and a fine to the chief. Whilst the strict punishment for murder is death, the culprit is allowed to redeem himself if it cannot be proved that he committed the deed wilfully.40 The Masai regard accidental homicide, or injury, as “the will of N’gai,” “the Unknown,” and “the elders arrange what compensation shall be paid to the injured person (if a male) or to the nearest relative. If a woman is killed by accident, all the killer’s property becomes the property of the nearest relative.”41 The Eastern Central Africans, according to the Rev. D. Macdonald, “know the difference between an injury of accident and one of intention.”42 And so do the natives of Nossi-Bé and Mayotte, near Madagascar.43
36 Grey, Journals of Expeditions of Discovery in North-West and Western Australia, ii. 238 sq.
37 Chalmers, Pioneering in New Guinea, p. 179.
38 Burton, Two Trips to Gorilla Land, i. 105.
39 Maclean, Compendium of Kafir Laws and Customs, pp. 113, 67, 60.
40 Stuhlmann, Mit Emin Pascha ins Herz von Afrika, p. 524.
41 Hinde, The Last of the Masai, p. 108.
42 Macdonald, Africana, i. 11.
43 Walter, in Steinmetz, Rechtsverhältnisse, p. 393.
Nay, there are instances of uncivilised peoples who entirely excuse, or do not punish, a person for an injury which he has inflicted by mere accident, even though they may compel him to pay damages for involuntary destruction of property.
We are told that the Pennsylvania Indians “judge with calmness on all occasions, and decide with precision, or endeavour to do so, between an accident and a wilful act; the first, they say, they are all liable to commit, and therefore it ought not to be noticed, or punished; the second being a wilful or premeditated act, committed with a bad design, ought on the contrary to receive due punishment,”44 Among some of the Marshall Islanders unintentional wrongs are punished only if the injured party be a person of note, for instance, a chief, or a member of a chief’s family.45 Among the Papuans of the Tami Islands, “accidental injuries are not punished. Generally the culprit confesses his deed, and makes an apology. If he has caused the destruction of some valuable, he has to repair the loss.”46 Among the Wadshagga there is no punishment for an accidental hurt; but if anybody’s property has been damaged thereby, a compensation amounting to one half of the damage may be required.47 The Hottentots do not nowadays punish accidents, even in the case of homicide.48 Among the Washambala a person is held responsible only for such injuries as he has inflicted intentionally or caused by carelessness.49 In some parts of West Africa, if a man, woman, or child, not knowing what he or she does, damages the property of another person, “native justice requires, and contains in itself, that if it can be proved the