Moore, ‘Sacrifice,’ in Cheyne and Black, Encyclopædia Biblica, iv. 4205.
93 Montefiore, op. cit. p. 558.
94 St. Augustine, Sermones, clxxx. 2 (Migne, Patrologiæ cursus, xxxviii. 973).
95 Gratian, Decretum, ii. 22. 2. 3.
96 Pœnitentiale Bedæ, v. 3 (Wasserschleben, Bussordnungen der abendländischen Kirche, p. 226). Pœnit. Egberti, vi. 3 (ibid. p. 238). Pœnit. Pseudo-Theodori, xxiv. 5 (ibid. p. 593).
97 Pœnit. Theodori, i. 4. 7 (ibid. p. 188). Pœnit. Bedæ, iv. 5 (ibid. p. 225). Pœnit. Egberti, iv. 11 (ibid. p. 235). According to Pœnit. Pseudo-Theodori, xxi. 2 (ibid. p. 586), the penance was to last for five years.
98 Pœnit. Hubertense, 2 (ibid. p. 377). Pœnit. Merseburgense, 2 (ibid. p. 391). Pœnit. Bobiense, 4 (ibid. p. 408). Pœnit. Vindobonense, 2 (ibid. p. 418). Pœnit. Cummeani, vi. 2 (ibid. p. 478). Pœnit. XXXV. Capitulornm, 1 (ibid. p. 506). Pœnit. Vigilanum, 27 (ibid. p. 529).
99 Pœnit. Parisiense, 1 (ibid. p. 412). Pœnit. Floriacense, 2 (ibid. p. 424).
100 Pœnit. Pseudo-Theodori, xxi. 18 (ibid. p. 588).
101 Pœnit. Pseudo-Theodori, xxi. 19 (ibid. 588).
102 Göpfert, Moraltheologie, i. 185.
103 Lex Salica (Harold’s text), 71. Brunner, Forschungen, p. 507, n. 1.
104 Foinitzki, in Le droit criminel des états européens, edited by von Liszt, p. 531.
105 Koran, iv. 94.
How shall we explain all these facts? Do they faithfully represent ideas of moral responsibility? Do they indicate that, at the earlier stages of civilisation, the outward event as such, irrespectively of the will of the agent, is an object of moral blame?
Most of the statements which imply a perfect absence of discrimination between accident and intention, refer to the system of private redress. Under this system a personal injury is regarded as a matter which the injured party or his kin have to settle for themselves. It certainly does not allow them to treat the offender just as they please; as we have seen, it is more or less regulated by custom. But at the same time it makes considerable allowance for the personal feelings of the sufferer, and these feelings are apt to be neither impartial nor sufficiently discriminate. Whether, in a savage community, public opinion prescribes, or merely permits, revenge in cases of accidental injury, is a question which the ordinary observations of travellers leave unanswered. It is important to note that one of the first steps which early custom or law took towards a restriction of the blood-feud was to save the life of the involuntary manslayer. Moreover, in many cases where the system of revenge has been succeeded by punishment, the injured party may still have a voice in the matter. In Abyssinia, for instance, “a life for a life is the sentence passed upon the murderer; but, obtaining the consent of the relatives of the deceased, he is authorised by law to purchase his pardon.”106 According to ancient Swedish law, an injury could not be treated as accidental unless the injured party acknowledged it as such.107 In England, even in the days of Henry III., the king could not protect the manslayer from the suit of the dead man’s kin, although he had granted him pardon on the score of misadventure.108 Indeed, so recently as 1741, a royal order was made for a hanging in chains “on the petition of the relations of the deceased.”109 And to this day English criminal courts, when dealing with some slight offence, mitigate the punishment “because the prosecutor does not press the case,” or even give him leave to settle the matter and withdraw the prosecution.110
106 Harris, Highlands of Æthiopia, ii, p. 94.
107 von Amira, Nordgermanische Obligationenrecht, i. 382.
108 Three Early Assize Rolls for the County of Northumberland, sæc. XIII, p. 98.
109 Amos, Ruins of Time, p. 23.
110 Kenny, Outlines of Criminal Law, p. 23.
In the case of accidental homicide, deference may also have to be shown for the supposed feelings of the dead man’s ghost, which, angry and bloodless, is craving for revenge and thirsting for blood. To leave its desires ungratified would be both dangerous and unmerciful. That this has something to do with the rigid demand of life for life in the case of homicide by misadventure seems all the more likely as in some instances when the involuntary manslayer is pardoned, other blood is to be shed instead of his. Among the Yao and Wayisa, near Lake Nyassa, it is the custom “by way of propitiation to give up a slave or some relative of the criminal’s, to ‘go along with the one who was slain,’ and this seems to be invariably done when one is killed by accident, in which case the slayer may escape, the deputy taking as it were his place.”111 We may assume that a similar idea underlies the ancient Roman law which provided a ram to be sacrificed in the place of the involuntary manslayer.
111 Macdonald, in Jour. Anthr. Inst. xii. 108.
But the dead man’s ghost not only persecutes his own family if neglectful of their duty, it also attacks the manslayer and cleaves to him like a miasma. The manslayer is consequently regarded as unclean, and has, both for his own sake and for the sake of the community in which he lives, to undergo some ceremony of purification in order to rid himself of the dangerous and infectious pollution. This notion will be illustrated in a following chapter. In the present connection I merely desire to point out that the pollution is there, whether the shedding of blood was intentional or accidental. And, as will be shown, though this state of uncleanness does not intrinsically involve guilt, it easily becomes a cause of moral disapproval, whilst the ceremony of purification is apt to be looked upon in the light of punishment. We shall also find that the notion of a persecuting ghost may be replaced by the notion of an avenging god, it being a fact of common occurrence that the doings or functions of one mysterious being are transferred to another.