[1] Stephen, History of the Criminal Law of England, ii. 113. Hepp, Zurechnung auf dem Gebiete des Civilrechts, p. 115 (Roman law).
[2] Bentham, Principles of Morals and Legislation, p. 322 sq. To a certain extent, however, this has been admitted by legislators even in the Middle Ages. Frederick II.’s Sicilian Code imposed a penalty on persons who witnessed conflagrations or shipwrecks without helping the victims, and a fine of four augustales on anyone who, hearing the shrieks of an assaulted woman, did not hurry to her rescue (Constitutiones Napolitana sive Siculæ, i. 28, 22 [Lindenbrog, Codex legum antiquarum, pp. 715, 712]). Bracton says (De Legibus et Consuetudinibus Angliæ, fol. 121, vol. ii. 280 sq.) that he who could rescue a man from death and did not do it, ought not to be exempt from punishment. It was a principle of the Canon law that he who does not prevent the infliction of an injury upon his neighbour when it lies in his power to do so, is to be regarded as an accomplice in the offence (Geyer, Lehre von der Nothwehr, p. 74. Gregory IX. Decretales, v. 12, 6. 2: “Qui potuit hominem liberare a morte, et non liberavit, eum occidit”).
The more scrutinising the moral consciousness, the greater the importance which it attaches to positive commandments. This is well illustrated by a comparison between Old and New Testament morality. As Professor Seeley observes,[3] “the old legal formula began ‘thou shalt not,’ the new begins with ‘thou shalt.’ The young man who had kept the whole law—that is, who had refrained from a number of actions—is commanded to do something, to sell his goods and feed the poor. Condemnation was passed under the Mosaic law upon him who had sinned, who had done something forbidden—the soul that sinneth shall die; Christ’s condemnation is pronounced upon those who had not done good—‘I was an hungered and ye gave me no meat.’ The sinner whom Christ habitually denounces is he who has done nothing.” This characteristic is repeatedly manifested in His parables—as in the case of the priest and Levite who passed by on the other side; in the case of Dives, of whom no ill is recorded except that a beggar lay at his gate full of sores and yet no man gave unto him; in the case of the servant who hid in a napkin the talent committed to him. However, to say that the new morality involved the discovery of “a new continent in the moral globe,”[4] is obviously an exaggeration. The customs of all nations contain not only prohibitions, but positive injunctions as well. To be generous to friends, charitable to the needy, hospitable to strangers, are rules which, as will be seen, may be traced back to the lowest stages of savagery known to us. The difference in question is only one of degree. Of the Bangerang tribe in Victoria Mr. Curr observes:—“Aboriginal restraints were, in the majority of cases, though not altogether, of a negative character; an individual might not do this, and might not eat that, and might not say the other. What he should do under any circumstances, or that he should do anything, were matters with which custom interfered less frequently.”[5]
[3] Seeley, Ecce Homo, p. 176.
[4] Ibid. p. 179.
[5] Curr, Recollections of Squatting in Victoria, p. 264 sq.
Whilst the unreflecting mind has a tendency to overlook or underrate the guilt of a person who, whether wilfully or by negligence, causes harm by doing nothing, it is on the other hand, apt to exaggerate the guilt of a person who, not wilfully but out of heedlessness or rashness, causes harm by a positive act. In reality the latter person is blamable not for what he did, but for what he omitted to do, for want of due attention, for not thinking of the probable consequences of his act or for insufficient advertence to them. But the superficial judge largely measures the agent’s guilt by the actual harm done, and in many cases even attributes to carelessness what was due to sheer misfortune.
As Sir F. Pollock and Prof. Maitland rightly observe, it is not true that barbarians will not trace the chain of causation beyond its nearest link—that, for example, they will not impute one man’s death to another unless that other has struck a blow which laid a corpse at his feet.[6] Among the Wanyoro, should a girl die in childbirth, the seducer is also doomed to die, unless he ransom himself by payment of some cows.[7] Among the Wakamba, if a man is the second time guilty of manslaughter in a state of drunkenness, the elders may either sentence him to death, “or make the seller of drink pay compensation to the family of the victim.”[8] According to the native code of Malacca, if vicious buffaloes or cattle “be tied in the highway, where people are in the habit of passing and repassing, and gore or wound any person, the owner shall be fined one tahil and one paha, and pay the expense necessary for the cure of the wounded individual. Should he be gored to death, then the owner shall be fined according to the Diyat, because the owner is criminal in having tied the animal in an improper place.”[9] In the Laws of Alfred it is said that, if a man have a spear over his shoulder and anybody stake himself on it, the man with the spear has to pay the wer.[10] According to an ancient custom, in vogue in England as late as the thirteenth century, one who was accused of homicide was, before going to the wager of battle, expected to swear that he had done nothing through which the dead man had become “further from life and nearer to death”;[11] and damages which the modern English lawyer would without hesitation describe as “too remote” were not too remote for the author of the so-called ‘Laws of Henry I.’[12] “At your request I accompany you when you are about your own affairs; my enemies fall upon and kill me; you must pay for my death.[13] You take me to see a wild beast show or that interesting spectacle a madman; beast or madman kills me; you must pay. You hang up your sword; some one else knocks it down so that it cuts me; you must pay.”[14] In all these cases you did something that helped to bring about death or wound, and you are consequently held responsible for the mishap.
[6] Pollock and Maitland, History of English Law before the Time of Edward I. ii. 470.
[7] Emin Pasha in Central Africa, p. 83.