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.