From certain passages in the Mosaic law the conclusion has been drawn that the ancient Hebrews did not consider it obligatory to inflict death upon him who had killed his neighbour in a fit of passion.[87] It is said that a man shall be put to death if he “come presumptuously upon his neighbour, to slay him with guile,”[88] or if he “hate his neighbour, and lie in wait for him, and rise up against him, and smite him mortally that he die.”[89] On the other hand, he shall be allowed a resort to a city of refuge if “he lie not in wait,”[90] or if he thrust his neighbour “suddenly without enmity.”[91]
[87] Goitein, Das Vergeltungsprincip im biblischen und taltmudischen Strafrecht, p. 33 sqq.
[88] Exodus, xxi. 14.
[89] Deuteronomy, xix. 11 sq.
[90] Exodus, xxi. 13.
[91] Numbers, xxxv. 22, 25.
Professor Leist suggests that in ancient Greece, at a time when blood-revenge was a sacred duty in the case of premeditated murder, homicide committed without premeditation could be forgiven by the avenger of blood.[92] Plato, in his ‘Laws,’ draws a distinction between him “who treasures up his anger and avenges himself, not immediately and at the moment, but with insidious design, and after an interval,” and him “who does not treasure up his anger, and takes vengeance on the instant, and without malice prepense.” The deed of the latter, though not involuntary, “approaches to the involuntary,” and should therefore be punished less severely than the crime perpetrated by him who has stored up his anger.[93] Aristotle, also, whilst denying that “acts done from anger or from desire are involuntary,”[94] maintains that “assaults committed in anger, are rightly decided not to be of malice aforethought, for they do not originate in the volition of the man who has been angered, but rather in that of the man who so angered him.”[95] And he adds that “everyone will admit that he who does a disgraceful act, being at the same time free from desire, or at any rate feeling desire but slightly, is more to be blamed than is he who does such an act under the influence of a strong desire; and that he who, when not in a passion, smites his neighbour, is more to be blamed than is he who does so when in a passion.”[96] Cicero likewise points out that “in every species of injustice it is a very material question whether it is committed through some agitation of passion, which commonly is short-lived and temporary, or from deliberate, prepense, malice; for those things which proceed from a short, sudden fit, are of slighter moment than those which are inflicted by forethought and preparation.”[97]
[92] Leist, Græco-italische Rechtsgeschichte, pp. 325, 352.
[93] Plato, Leges, ix. 867.
[94] Aristotle, Ethica Nicomachea, iii. 1. 21.