ignorance, the doer cannot be punished according to the law.”50
44 Buchanan, North American Indians, p. 160 sq.
45 Kohler, in Zeitschr. f. vergl. Rechtswiss. xiv. 448.
46 Bamler, quoted by Kohler, ibid. xiv. 381.
47 Merker, quoted by Kohler, ibid. xv. 64.
48 Kohler, ibid. xv. 353.
49 Lang, in Steinmetz, Rechtsverhältnisse, p. 261.
50 Miss Kingsley, in her Introduction to Dennett’s Notes on the Folklore of the Fjort, p. xi.
These instances of occasional discrimination in savage justice are particularly interesting in the face of the fact that, even among peoples who have attained a higher degree of culture, innocent persons are often punished by law for bringing about events without any fault of theirs.
It is a principle of the Chinese law that “all persons who kill or wound others purely by accident, shall be permitted to redeem themselves from the punishment of killing or wounding in an affray, by the payment in each case of a fine to the family of the person deceased or wounded.”51 But there are exceptions to this rule. Any person who kills his father, mother, paternal grandfather or grandmother, and any wife who kills her husband’s father, mother, paternal grandfather or grandmother, “purely by accident, shall still be punished with 100 blows and perpetual banishment to the distance of 3,000 lee. In the case of wounding purely by accident, the persons convicted thereof shall be punished with 100 blows and three years’ banishment: in these cases, moreover, the parties shall not be permitted to redeem themselves from punishment by the payment of a fine, as usual in the ordinary cases of accident.”52 Again, slaves who accidentally kill their masters, “shall suffer death, by being strangled at the usual period.”53 It is also a characteristic provision of the Chinese law that an act of grace is necessary for relieving all those from punishment who have offended accidentally and inadvertently.54
51 Ta Tsing Leu Lee, sec. ccxcii. p. 314.
52 Ibid. sec. cccxix. p. 347. Cf. ibid. sec. ccxcii. p. 314.
53 Ibid. sec. cccxiv. p. 338.
54 Ibid. sec. xvi. p. 18.
It is said in the Laws of Ḫammurabi:—“If a man has struck a man in a quarrel, and has caused him a wound, that man shall swear ‘I did not strike him knowing’ and shall answer for the doctor. If he has died of his blows, he shall swear, and if he be of gentle birth he shall pay half a mina of silver. If he be the son of a poor man, he shall pay one-third of a mina of silver.”55
55 Laws of Ḫammurabi, 206 sqq.
It has been observed that the purpose of the Hebrew law of sanctuary was not merely to protect the involuntary manslayer from blood-revenge, but at the same time to punish him and compel him to expiate the blood he has shed.56 If he left the city of refuge before the death of the high-priest, the avenger of blood might kill him without incurring blood-guiltiness; and he was not permitted to purchase an earlier return to his possession with a money ransom.57
56 Goitein, Das Vergeltungsprincip im biblischen und talmudischen Strafrecht, p. 25 sq. Keil, Manual of Biblical Archæology, ii. 371.
57 Numbers, xxxv. 26 sqq.
According to the Laws of Manu, “he who damages the goods of another, be it intentionally or unintentionally, shall give satisfaction to the owner and pay to the king a fine equal to the damage”;58 and various rites of expiation are prescribed for a person who kills a Brâhmana by accident,59 whereas the intentional slaying of a Brâhmana is inexpiable.60
58 Laws of Manu, viii. 288.
59 Ibid. xi. 73 sqq.
60 Ibid. xi. 90. Gautama, xxi. 7. According to some authorities, however, the wilful slaying of a Brâhmana was expiable by a penance of greater severity (Bühler’s note, in his translation of the ‘Laws of Manu,’ Sacred Books of the East, xxv. 449).
Demosthenes praises the Athenian law for making the penalty of unintentional homicide less than that of intentional. The punishment for murder was death, from which, however, before the sentence was passed, the murderer was at liberty to escape by withdrawing from his country and remaining in perpetual exile. But he who was convicted of involuntary homicide had to leave the country only for some shorter time, until he had appeased the relatives of the deceased.61 As will be seen subsequently, the real object of this law was not so much to punish the involuntary manslayer, as to save him from being persecuted by the dead man’s ghost, and to rid the community of a pollution. However, the Athenian law does not represent the ideas of early times. As Dr. Farnell observes, the constitution and the legend about the foundation of the court at the Palladium, which was established to try cases of unintentional blood-shedding, shows that the ancient practice was susceptible of improvement.62 Nor does the Roman law, which, in its developed shape, with such a remarkable consistency carried out the Cornelian principle, “in maleficiis voluntas spectatur non exitus,”63 seem to have been equally discriminate in early times.64 In the Law of the Twelve Tables there are still some faint traces left of the notion that expiation was required of a person who accidentally shed human blood.65
61 Demosthenes, Contra Aristocratem, 71 sq. p. 643 sq.