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 intended[116]—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 the rest. It does not press the question whether the 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.