[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]