[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 day[124] 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 law[130]—is without a parallel in the European legislation of the present day. Both the French[131] and the German[132] 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.