harm was caused by the agent’s will or not. It does not make any serious attempt to separate the external event from the will, and it is inclined to assume that there is a coincidence between the two. This is not altogether bad psychology since, as a rule, men will what they do. “Le fait juge l’homme,” says an old French proverb; and in morals, also, “the tree is known by the fruit.” However, there are cases of injuries in which not even uncivilised men can fail to discover, at once, the absence of any evil intention. This certainly does not mean that the injurer escapes all censure. Every feeling of pain, sympathetic pain included, which is caused by a living being, has a certain tendency to give rise to an aggressive impulse towards its cause; hence savages, even though they distinguish between intentional and unintentional harm, are inclined to impute some degree of guilt to any person who involuntarily commits a forbidden deed, though he be in reality quite innocent. But the reason for this is only want of due reflection. If it is clearly understood that a certain event is the result of merely external circumstances, that it was neither intended by the agent nor could have been foreseen by him, in other words, that it in no way was caused by his will—then there could be no moral indignation at all. It would be simply absurd to suppose that an outward event as such, assumed to be absolutely unconnected with any defect of will, could ever give rise to moral blame. Such an event could not even call forth a feeling of revenge. Sudden anger itself cools down when it appears that the cause of the inflicted pain was a mere accident. Even a dog, as has been observed, distinguishes between being stumbled over and being kicked.
119 Burton, Two Trips to Gorilla Land, i. 105.
120 Ellis, Ew̔e-speaking Peoples of the Slave Coast, p. 224.
That the indiscriminate attitude of early custom and law towards accidental injuries does not imply any difference in principle between the enlightened and unenlightened moral consciousness as regards the subject of moral valuation, becomes perfectly obvious when we consider what a great influence the outward event exercises upon moral estimates even among ourselves. “The world judges by the event, and not by the design,” says Adam Smith. “Everybody agrees to the general maxim, that as the event does not depend on the agent, it ought to have no influence upon our sentiments, with regard to the merit or propriety of his conduct. But when we come to particulars, we find that our sentiments are scarce in any one instance exactly conformable to what this equitable maxim would direct.”121 Even in the criminal laws of civilised nations chance still plays a prominent part. According to the present law of England, though a person is not criminally liable for the involuntary and unforeseen consequences of acts which are themselves permissible, the case is different if he commits an act which is wrong and criminal,122 or, as it seems, even if he commits an act which is wrong without being forbidden by law.123 Thus death caused unintentionally is regarded as murder, if it takes place within a year and a day124 as the result of an unlawful act which amounts to a felony.125 For instance, a person kills another accidentally by shooting at a domestic fowl with intent to steal it, and he will probably be convicted of murder.126 Again, a near-sighted man drives at a rapid rate, sitting at the bottom of his cart, and thereby causes the death of a foot-passenger; he is guilty of manslaughter.127 A man recklessly and wantonly throws a lighted match into a haystack, careless whether it take fire or not, and so burns down the stack; his crime is arson. But if he did not intend to throw the lighted match on the haystack, he would probably not be guilty of any offence at all, “unless death was caused, in which case he would be guilty of manslaughter.”128 Even if the unintended death is to some extent owing to the negligence of the injured party himself, it may be laid to the charge of the injurer. This at all events was the law in Hale’s time, “If a man,” he says, “receives a wound, which is not in itself mortal, but either for want of helpful applications, or neglect thereof, it turns to a gangrene, or a fever, and that gangrene or fever be the immediate cause of his death, yet, this is murder or manslaughter in him that gave the stroke or wound.”129 So far as I know, the severity of the English law on unintentional homicide—which, in fact, is a survival of ancient Teutonic law130—is without a parallel in the European legislation of the present day. Both the French131 and the German132 laws are much less severe; and so is the Ottoman Penal Code,133 and Muhammedan law in general.134 Yet the unintended deadly consequence of a criminal act always affects the punishment more or less.
121 Adam Smith, Theory of Moral Sentiments, p. 152.
122 According to Harris (Principles of the Criminal Law, p. 156), the act should be a malum in se, not merely a malum quia prohibitum.
123 Kenny, op. cit. p. 41.
124 Stephen, History of the Criminal Law of England, iii. 8.
125 Ibid. iii. 22.
126 Ibid. iii. 83.
127 Harris, op. cit. p. 157.
128 Stephen, op. cit. ii. 113.
129 Hale, History of the Pleas of the Crown, i. 428.
130 Lex Wisigothorum, vi. 5. 6: “Si dum quis calce, vel pugno, aut quacumque percussione injuriam conatur inferre, homicidii extiterit occasio, pro homicidio puniatur.”
131 Code Pénal, art. 309.
132 Strafgesetzbuch, art. 226.
133 Ottoman Penal Code, art. 177. Cf. ibid. art. 174.
134 Sachau, op. cit. p. 761 sq.
I presume that nobody after due deliberation would maintain that the moral guilt of the offender is enhanced by the death of him whom he involuntarily happened to kill. Sir James Stephen, nevertheless, makes an attempt to defend, from a moral point of view, the severe English law on the subject, which he thinks “is much to be preferred to the law of France.” He asks, “Is there anything to choose morally