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
It has been observed that the purpose of the Hebrew law of sanctuary
was not merely to protect the involuntary manslayer from
blood-revenge, but at the same time to punish him and compel him to
expiate the blood he has shed.[56] If he left the city of refuge
before the death of the high-priest, the avenger of blood might kill
him without incurring blood-guiltiness; and he was not permitted to
purchase an earlier return to his possession with a money
ransom.[57]
[Footnote 56: Goitein, _Das Vergeltungsprincip im biblischen und
talmudischen Strafrecht_, p. 25 _sq._ Keil, _Manual of Biblical
Archæology_, ii. 371.]
[Footnote 57: _Numbers_, xxxv. 26 _sqq._]
According to the Laws of Manu, "he who damages the {225} goods of
another, be it intentionally or unintentionally, shall give
satisfaction to the owner and pay to the king a fine equal to the
damage";[58] and various rites of expiation are prescribed for a
person who kills a Brâhmana by accident,[59] whereas the intentional
slaying of a Brâhmana is inexpiable.[60]
[Footnote 58: _Laws of Manu_, viii. 288.]
[Footnote 59: _Ibid._ xi. 73 _sqq._]
[Footnote 60: _Ibid._ xi. 90. _Gautama_, xxi. 7. According to some
authorities, however, the wilful slaying of a Brâhmana was expiable by
a penance of greater severity (Bühler's note, in his translation of
the 'Laws of Manu,' _Sacred Books of the East_, xxv. 449).]
Demosthenes praises the Athenian law for making the penalty of
unintentional homicide less than that of intentional. The punishment
for murder was death, from which, however, before the sentence was
passed, the murderer was at liberty to escape by withdrawing from his
country and remaining in perpetual exile. But he who was convicted of
involuntary homicide had to leave the country only for some shorter
time, until he had appeased the relatives of the deceased.[61] As will
be seen subsequently, the real object of this law was not so much to
punish the involuntary manslayer, as to save him from being persecuted
by the dead man's ghost, and to rid the community of a pollution.
However, the Athenian law does not represent the ideas of early times.
As Dr. Farnell observes, the constitution and the legend about the
foundation of the court at the Palladium, which was established to try
cases of unintentional blood-shedding, shows that the ancient practice
was susceptible of improvement.[62] Nor does the Roman law, which, in
its developed shape, with such a remarkable consistency carried out
the Cornelian principle, "in maleficiis voluntas spectatur non
exitus,"[63] seem to have been equally discriminate in early
times.[64] In the Law of the Twelve Tables there are still some faint
traces left of the notion that expiation was required of a person who
accidentally shed human blood.[65]
[Footnote 61: Demosthenes, _Contra Aristocratem_, 71 _sq._ p. 643 _sq._]
[Footnote 62: Aristotle, _De republica Atheniensium_, 57. Farnell,
_Cults of the Greek States_, i. 304.]
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