[95] Ibid. v. 8. 9.
[96] Ibid. vii. 7. 3.
[97] Cicero, De officiis, i. 8.
Of ancient Russian law M. Kovalewsky observes, “L’existence d’une excitation violente est prise en considération, par notre antique législation, qui déclare le crime accompli sous leur influence non imputable.”[98] According to ancient Irish law, “homicide was divisible into the two classes of simple manslaughter and murder, the difference between which lay in the existence or absence of malice aforethought, the fine in the latter being double what it was in the former case”; and for a wound which was inflicted inadvertently in lawful anger, the payment was made upon a diminished scale.[99] The ancient Teutons, also, held a wrong committed in sudden anger and on provocation to be less criminal than one committed with premeditation in cold blood;[100] this opinion seems partly to be at the bottom of the distinction which they made between open and secret homicide.[101] According to the law of the East Frisians, a man who kills another without premeditation may buy off his neck with money, not so he who commits a murder with malice aforethought.[102] It is curious that Bracton should take no notice of the different grades of evil intention which may accompany voluntary homicide, and that he should omit altogether the question of provocation;[103] Beaumanoir, the French jurist, who lived in the same age, mentions in his ‘Coutumes du Beauvoisis’ provocation as an extenuating circumstance,[104] and the same view was taken by the Church.[105] Coke, in his Third Institute—which may be regarded as the second source of the criminal law of England, Bracton being the first—gives an account of malice aforethought, and adds, “Some manslaughters be voluntary, and not of malice forethought, upon some sudden falling out. Delinquens per iram provocatus puniri debet mitius.”[106] Hume says that in Scotland “the manslayer on suddenty was to have the benefit of the girth or sanctuary: he might flee to the church or other holy place; from which he might indeed be taken for trial, but to be returned thither, safe in life and limb, if his allegation of chaude melle were proved.”[107] All modern codes regard provocation under certain circumstances as a mitigating circumstance.[108] According to the criminal law of Montenegro, great provocation may even relieve a homicide of all guilt.[109]
[98] Kovalewsky, Coutume contemporaine, p. 291.
[99] Ancient Laws of Ireland, iii. pp. xciii. cx.
[100] Wilda, op. cit. p. 560 sqq., 701. Stemann, op. cit. p. 574. von Amira, in Paul’s Grundriss der germanischen Philologie, ii. pt. ii. 174.
[101] Wilda, op. cit. p. 569. von Amira, loc. cit. p. 173.
[102] Das Ostfriesische Land-Recht, iii. 17 sq.
[103] Cf. Stephen, op. cit. iii. 33.