by gods even more than it is shunned by men; and this largely helps to explain the attitude of religion towards unintentional and unforeseen shedding of human blood.
There are other, more general reasons for the want of discrimination often displayed by religion in regard to the accidental transgression of a religious law. When a thing is taboo in the strict sense of the word, it is supposed to be charged with mysterious energy which will injure or destroy the person who eats or touches the forbidden thing, whether he does so wilfully or by mistake. As Professor Jevons correctly observes, “the action of taboo is always mechanical; contact with the tabooed object communicates the taboo infection as certainly as contact with water communicates moisture. … The intentions of the taboo-breaker have no effect upon the action of the taboo; he may touch in ignorance, or for the benefit of the person he touches, but he is tabooed as surely as if his motive were irreverent or his action hostile.”112 So, also, according to primitive notions, the effect of a curse or an oath is purely mechanical; hence a person who swears falsely in ignorance exposes himself to no less danger than a person who perjures himself knowingly. As regards religious offences in the strictest sense of the term—that is, offences against some god which are supposed to arouse his resentment—it should be remembered that, just as a man who is hurt is unable to judge on the matter as coolly as does the community at large, so a god whose ordinances are transgressed is thought to be less discriminating in his anger than a disinterested human judge, and, consequently, more apt to be influenced by the external event. And where nearly every calamity is regarded as a divine punishment, a person who is suffering without knowing what sin he has committed, naturally infers that a god is punishing him for some secret fault.
112 Jevons, Introduction to the History of Religion, p. 91.
Thus it may be that, in the point which we are discussing, as in various other respects, the religious beliefs of a people do not faithfully represent their general notions of moral responsibility. It is profoundly wrong to assume, from the legend of Oedipus and other similar cases, that the ancient Greeks, in general, held a person “equally responsible for an accident which occurs to him, and for an act of which the agent is aware.” Even the transgression of a sacred law, when committed in ignorance, seems to have excited pitiful horror rather than moral indignation. Oedipus had killed his father in self-defence, and married his mother, perfectly ignorant of his relation to them. The gods punished the Thebans with pestilence for harbouring such a wretch on their soil. But when “time that sees all, found him out in his unwitting sin,” it was not blame, but terror and deep compassion for the unhappy man that, according to the tragedian,113 spoke from the lips of the people. Moreover, in the latter tragedy Oedipus persistently vindicates his innocence:—“Whatever I have done was done unwittingly”—“Before the law I have no guilt.” And, addressing himself to Creon, who has accused him of parricide and incest, he exclaims:—“O shameless soul, where, thinkest thou, falls this thy taunt—on my age, or on thine own? Bloodshed—incest—misery—all this thy lips have launched against me—all this that I have borne, woe is me! by no choice of mine: for such was the pleasure of the gods, wroth, haply, with the race from of old … Tell me, now—if, by voice of oracle, some divine doom was coming on my sire, that he should die by a son’s hand, how couldst thou justly reproach me therewith, who was then unborn, whom no sire had yet begotten, no mother’s womb conceived? And if, when born to woe—as I was born—I met my sire in strife, and slew him, all ignorant what I was doing, and to whom—how couldst thou justly blame the unknowing deed?114 Never was a more pathetic appeal made to the court of Justice from the indiscriminate verdict of angry gods.
113 Sophocles, Œdipus Tyrannus.
114 Idem, Œdipus Coloneus, 960 sqq. (Jebb’s translation, p. 155).
Whilst the grossest want of discrimination may thus be explained from revengeful feelings and superstitious beliefs, there still remain a multitude of cases which must be regarded as genuine expressions of moral indignation. As to these, it should, first, be remembered that even the reflecting moral consciousness may hold a person blamable for the unintentional and unforeseen infliction of an injury, namely, in cases where it assumes want of proper foresight. Now, as we know, it is often difficult enough to discern whether, or to what extent, an unintended injury is due to carelessness on the part of the agent; sometimes even it is no easy thing to tell whether an injury was intended or not. It is not to be expected, then, that distinctions of so subtle a nature should be properly made by the uncultured mind, and least of all is it to be expected that such distinctions should be embodied in early custom and law, which are based on average cases and allow of no minute individualisation. It has been observed that the roughness of Teutonic justice may be partly explained from the difficulty in getting any proof of intention or of its absence, from the lack of any proper distinctions between misadventure and carelessness, and from the fact that the so-called misadventures of early times covered many a blameworthy act.115 And all this holds good not merely of the ancient Teutons. It may further be said that the more defective the power of discrimination, the greater is the tendency to presume guilt. In Morocco a man who runs away after killing another is presumed to have committed the deed intentionally, however innocent he really may be. Among the Teutons the presumption was always against the manslayer; he had to proclaim what he had done, and to prove that the deed was not intended116—unless, indeed, the misadventure belonged to a certain type of injuries which by their very nature entailed no guilt. For instance, if a man carried a spear level on his shoulder and another ran upon the point, he was free from blame; whereas, if harm ensued by pure accident from a distinct act, the agent was liable.117 As von Amira remarks, the Swedish notion of vadhaværk was not a merely negative conception, but implied that there was danger connected with the act.118
115 Pollock and Maitland, op. cit. i. 55; ii. 475, 483. von Amira, Nordgermanisches Obligationenrecht, i. 377 sq.
116 Wilda, op. cit. i. 345. Brunner, Forschungen, p. 500 sq. Pollock and Maitland, op. cit. ii. 471.
117 Wilda, op. cit. p. 584. Trummer, op. cit. i. 427. Brunner, Forschungen, p. 499 sq. von Amira, ‘Recht,’ in Paul’s Grundriss der germanischen Philologie, ii. pt. ii. 172. Pollock and Maitland, op. cit. i. 53 sq.
118 von Amira, Nordgermanisches Obligationenrecht, i. 377.
Where the distinction between guilt and innocence is difficult to draw, it may be wise policy to presume guilt. According to Sir R. Burton, the Mpongwe jurists say that little or no difference is generally made between wilful murder and accidental manslaughter in order that people should be more careful;119 and a similar idea may lie at the bottom of the Dahoman law which punishes capitally any person whose house takes fire, even if it happens accidentally.120 But the presumption of guilt is not only, nor in the first place, owing to considerations of social utility, combined with a reckless indifference to undeserved suffering. The unreflecting mind is shocked by the harm done, and cares little for