The origin and development of the moral ideasWestermarck, Edward
Philosophy
The origin and development of the moral ideas
Westermarck, Edward
Ethics; Ethics -- History; Prehistoric peoples
[Footnote 32: Servius, _In Virgilii Bucolica_, 43. _Cf._ von Jhering,
_Das Schuldmoment im römischen Privatrecht_, p. 11.]
Among some peoples who accept compensation even for wilful murder, the
blood-price is lower if life is taken unintentionally.[33]
[Footnote 33: Beverley, in Steinmetz, _Rechtsverhältnisse_, p. 215
(Wagogo). Dareste, _Nouvelles études d'histoire du droit_, p. 237
(Swanetians of the Caucasus).]
According to Bowdich, "a person accidentally killing another in
Ahanta, pays 5 oz. of gold to the family, and defrays the burial
customs. In the case of murder, it is 20 oz. of gold and a slave; or,
he and his family become the slaves of the family of the
deceased."[34] Ancient Irish law imposed an Eric fine for accidental
or unintentional homicide, to be paid to the relatives of the dead
man, whilst a double fine was due for homicide where anger was shown,
_i.e._, where probably there was what we should call "malice."[35]
[Footnote 34: Bowdich, _Mission from Cape Castle to Ashantee_, p. 258,
n. [double dagger].]
[Footnote 35: Cherry, _Growth of Criminal Law in Ancient Communities_,
p. 22.]
In the punishments inflicted by many savages, a similar distinction is
made between intentional and accidental harm, although, at the same
time, some degree of guilt is frequently imputed to persons who, in
our opinion, are perfectly innocent.
Speaking of the West Australian aborigines, Sir G. Grey
observes:--"If a native is slain by another wilfully, they kill the
murderer, or any of his friends they can lay hands on. If a native
kills another accidentally, he is punished according to the
circumstances of the case." And the punishment may be severe enough.
"For instance, if, in inflicting spear wounds as a punishment for some
offence, one of the agents should spear the culprit through the thigh,
and accidentally so injure the {222} femoral artery that he dies, the
man who did so would have to submit to be speared through both thighs
himself."[36] In New Guinea, according to Dr. Chalmers, murder is
punished capitally, whereas a death caused by accident is expiated by
a fine.[37] Among the Mpongwe, "except in the case of a chief or a
very rich man, little or no difference is made between wilful murder,
justifiable homicide, and accidental manslaughter."[38] Kafir law
seems to demand no compensation for what is clearly proved to have
been a strictly accidental injury to property, but the case is
different in regard to accidental injuries to persons, if the injury
be of a serious nature. Thus "it seems to make little or no
distinction between wilful murder and any other kind of homicide;
unless it be, perhaps, that in purely accidental homicide the full
amount of the fine may not be so rigidly insisted upon."[39] Among the
A-l[=u]r, in the case of accidental injuries, a compensation is paid
to the injured party and a fine to the chief. Whilst the strict
punishment for murder is death, the culprit is allowed to redeem
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