Aristotle, De republica Atheniensium, 57. Farnell, Cults of the Greek States, i. 304.
63 Digesta, xlviii. 8. 14.
64 von Jhering, Das Schuldmoment im römischen Privatrecht, p. 16. Mommsen, Römisches Strafrecht, p. 85.
65 Mommsen, op. cit. p. 85.
The principle of ancient Teutonic law was, “Qui inscienter peccat, scienter emendet”—a maxim laid down by the compiler of the so-called ‘Laws of Henry I.,’66 no doubt translating an old English proverb.67 In historic times, the law, distinguishing between vili and vadhi, treats intentional homicide as worse than unintentional. In one case there can, in the other there can not, be a legitimate feud; and whilst wilful manslaughter can be expiated only by wíte, as well as wer, the involuntary manslayer has to pay wer to the family of the dead, but no wíte to the authorities.68 Yet the wer to be paid was not merely compensation for the loss sustained, as Wilda, misled by his enthusiasm for Teutonic law, has erroneously assumed;69 it was punishment as well.70 And the character of criminality attached to accidental homicide survived the system of wer. When homicide became a capital offence, homicide by misadventure was included in the law. However, the involuntary manslayer was not executed, but recommended to the “mercy” of the prince. This was the case in England in the later Middle Ages,71 and in France still more recently.72 And when the English law was altered, and the involuntary offender no longer was in need of mercy, he nevertheless continued to be treated as a criminal. He was punished with forfeiture of his goods. According to the rigour of the law such a forfeiture might have been exacted even in the year 1828, when the law was finally abolished after having fallen into desuetude in the course of the previous century.73
66 Leges Henrici I. xc. 11.
67 Pollock and Maitland, History of the English Law before the Time of Edward I. i. 54.
68 Wilda, op. cit. p. 545 sqq., 594. Idem, Deutsche Rechtsgeschichte, i. 165. Pollock and Maitland, op. cit. ii. 471.
69 Wilda, op. cit. p. 578.
70 Geyer, Die Lehre von der Nothwehr, p. 87 sq. Trummer Vorträge über Tortur, &c. i. 345. Brunner, Forschungen, p. 505 sq.
71 Bracton, De Legibus et Consuetudinibus Angliæ, fol. 134, vol. ii. 382 sq.; fol. 104 b, vol. ii, 152 sq. Brunner, Forschungen, p. 494 sqq. Biener, Das englische Geschwornengericht, i. 120, 392. Pollock and Maitland, op. cit. ii. 479.
72 Beaumanoir, Les coutumes du Beauvoisis, 69, vol. ii. 483. Esmein, Histoire de la procédure criminelle en France, p. 255.
73 Stephen, History of the Criminal Law of England, iii. 77.
If men at the earlier stages of civilisation generally attach undue importance to the outward aspect of conduct, the same is still more the case with their gods.
The Tshi-speaking peoples of the Gold Coast believe that the god Sasabonsum “takes delight in destroying all those who have offended him, even though the offence may have been accidental and unintentional”; whereas, among the same people, it is the custom that even deaths resulting from accidents, not to speak of minor injuries, are compensated for by a sum of money.74 Miss Kingsley says she is unable, from her own experience, to agree with Mr. Dennett’s statement with reference to the Fjort, that ignorance would save the man who had eaten prohibited food. From what she knows, Merolla’s story is correct: the man, though he eat in ignorance, dies or suffers severely. “It is true,” she adds, “that one of the doctrines of African human law is that the person who offends in ignorance, that is not a culpable ignorance, cannot be punished; but this merciful dictum I have never found in spirit law. Therein if you offend, you suffer; unless you can appease the enraged spirit, neither ignorance nor intoxication is a feasible plea in extenuation.”75 The Omahas believe that to eat of the totem, even in ignorance, would cause sickness, not only to the eater, but also to his wife and children.76
74 Ellis, Tshi-speaking Peoples of the Gold Coast, pp. 35, 301.
75 Miss Kingsley, in her Introduction to Dennett’s Folklore of the Fjort, p. xxviii.
76 Frazer, Totemism, p. 16.
Speaking of the sacred animals of the ancient Egyptians, Herodotus says, “Should any one kill one of these beasts, if wilfully, death is the punishment; if by accident, he pays such fine as the priests choose to impose. But whoever kills an ibis or a hawk, whether wilfully or by accident, must necessarily be put to death.”77 According to the Chinese penal code, “whoever destroys or damages, whether intentionally or inadvertently, the altars, mounds, or terraces consecrated to the sacred and imperial rites, shall suffer 100 blows, and be perpetually banished to distance of 2000 lee.”78 In these cases the punishment inflicted by human hands is obviously a reflection of the supposed anger of superhuman beings.
77 Herodotus, ii. 65. Cf. Pomponius Mela, 9.
78 Ta Tsing Leu Lee, sec. clviii. p. 172.
The Shintoist prays for forgiveness of errors which he has committed unknowingly.79 According to the Vedic hymns, whoever with or without intention offends against the eternal ordinances of Varuna, the All-knowing and Sinless, arouses his anger, and is bound with the bonds of the god—with calamity, sickness, and death.80 Forgiveness is besought of Varuna for sins that have been committed in unconsciousness;81 even sleep occasions sin.82 The singer Vasishtha is filled with pious grief, because daily