[8] Decle, Three Years in Savage Africa, p. 487.
[9] Newbold, British Settlements in the Straits of Malacca, ii. 256 sq.
[10] Laws of Alfred, 36.
[11] Leges Henrici I. xc. 11. Bracton, op. cit. fol. 141 b, vol. ii. 440 sq.
[12] Pollock and Maitland, op. cit. ii. 470 sq.
[13] Leges Henrici I. lxxxviii. 9.
[14] Ibid. xc. 11. Pollock and Maitland, op. cit. ii. 471.
But though early custom and law may be anxious enough to trace an event to its source, they easily fail to distinguish between external and internal causes, to discover where there is guilt or not, and, in case of carelessness, to determine the magnitude of the offender’s guilt. Ancient Teutonic law, as we have seen, distinguished between vili and vadhi. It punished the involuntary manslayer less heavily than the voluntary one, but it punished him all the same; and whether the unintended deed was combined with heedlessness or was purely accidental was a question with which the law did not at all concern itself.[15] According to the Laws of Ḫammurabi, “if the doctor has treated a gentleman for a severe wound with a lancet of bronze, and has caused the gentleman to die, or has opened an abscess of the eye for a gentleman with the bronze lancet and has caused the loss of the gentleman’s eye, one shall cut off his hands.”[16] In the Mosaic law distinction was made between presence and absence of enmity in the manslayer, but the difference between carelessness and misfortune was not considered,[17] except when the instrument of death was a goring ox.[18] However, in this, as in many other respects, great progress was made by the later legislation of the Jews. The Rabbis took considerable pains to distinguish between purely accidental homicide and homicide due to carelessness; the former they exempted from all punishment, whereas the latter incurred the punishment of confinement to a city of refuge.[19] They even distinguished between cases in which the death was exclusively due to the carelessness of the agent, and cases in which the deceased contributed to it by some blamable act of his own. A father or a teacher who in punishing his son or pupil unintentionally caused his death, and a person who by order of the Sanhedrim inflicted corporal punishment on a culprit and in doing so happened by mistake to kill him—such persons were not confined in a city of refuge, but escaped punishment altogether.[20] Whatever else may be said of these provisions, they certainly show remarkable discernment in a point where legislators of a ruder type have been very indiscriminate. In the oldest English records we see no attempt to distinguish cases in which the dead man himself was reprehensible from others in which no fault could be imputed to him, and we find that many horses and boats bore the guilt which should have been ascribed to beer.[21] When a drunken carter was crushed beneath the wheel of his cart, the cart, the cask of wine which was in it, and the oxen that were drawing it, were all deodand.[22] According to the customary law of the Ossetes, if a stolen gun went off in the hands of the thief who was carrying it away, and killed him, the thief’s kin had a just feud against the owner of the gun.[23]
[15] Wilda, Strafrecht der Germanen, p. 578. Geyer, op. cit. p. 88. Brunner, Forschungen zur Geschichte des deutschen und französischen Rechtes, p. 499.
[16] Laws of Ḫammurabi, 218.