Chapter X: Agents Under Intellectual Disability (1)

WE hold an agent responsible not only for his intention, but for any known concomitant of his act, as also for any such unknown concomitant of it as we attribute to want of due attention. But for anything which he could not be aware of he is not responsible. Hence certain classes of agents--animals, children, idiots, madmen--are totally or partially exempted from moral blame and legal punishment.

Though animals are undoubtedly capable of acting, we do not regard them as proper objects of moral indignation. The reason for this is not merely the very limited scope of their volitions and their inability to foresee consequences of their acts, since these considerations could only restrict their responsibility within correspondingly narrow limits. Their total irresponsibility rests on the presumption that they are incapable of recognising any act of theirs as right or wrong. If the concomitant of an act is imputable to the agent only in so far as he could know it, it is obvious that no act is wrong which the agent could not know to be wrong.

It is a familiar fact that, by discipline, we may teach domesticated animals to live up to a certain standard of behaviour, but this by no means implies that we awake in them moral feelings. When some writers credit dogs and apes with a conscience,[1] we must remember that an {250} observer's inference is not the same as an observed fact.[2] It seems that the so-called conscience in animals is nothing more than an association in the animal's mind between the performance of a given act and the occurrence of certain consequences, together with a fear of those consequences.[3]

[Footnote 1: Romanes, _Mental Evolution in Animals_, p. 352. Perty, _Seelenleben der Thiere_, p. 67. Brehm, _From North Pole to Equator_, p. 298.]

[Footnote 2: _Cf._ Lloyd Morgan, _Animal Life and Intelligence_, p. 399.]

[Footnote 3: _Cf._ _ibid._ p. 405.]

The following is one of the most striking instances of what Professor Romanes regards as "conscience" in animals; it refers to a terrier which had never, even in its puppyhood, been known to steal, but on the contrary used to make an excellent guard to protect property from other animals, servants, and so forth, even though these were his best friends. "Nevertheless," says Professor Romanes, "on one occasion he was very hungry, and in the room where I was reading and he was sitting, there was, within easy reach, a savoury mutton chop. I was greatly surprised to see him stealthily remove this chop and take it under a sofa. However, I pretended not to observe what had occurred, and waited to see what would happen next. For fully a quarter of an hour this terrier remained under the sofa without making a sound, but doubtless enduring an agony of contending feelings. Eventually, however, conscience came off victorious, for emerging from his place of concealment and carrying in his mouth the stolen chop, he came across the room and laid the tempting morsel at my feet. The moment he dropped the stolen property he bolted again under the sofa, and from this retreat no coaxing could charm him for several hours afterwards. Moreover, when during that time he was spoken to or patted, he always turned away his head in a ludicrously conscience-stricken manner. Altogether I do not think it would be possible to imagine a more satisfactory exhibition of conscience by an animal than this; for . . . the particular animal in question was never beaten in its life." The author then adds in a note that "mere dread of punishment cannot even be suspected to have been the motive principle of action."[4] It may be so, if by punishment be understood the infliction of physical pain. But it can hardly be doubted that the terrier suspected his master to be displeased with his behaviour, and the dread of displeasure or reproof may certainly have been the sole reason for his bringing back the stolen food. Among {251} "high-life" dogs, as Professor Romanes himself observes, "wounded sensibilities and loss of esteem are capable of producing much keener suffering than is mere physical pain."[5] But fear of the anticipated consequences of an act, even when mixed with shame, is not the same as the moral feeling of remorse. There is no indication that the terrier felt that his act was wrong, in the strict sense of the word.

[Footnote 4: Romanes, 'Conscience in Animals,' in _Quarterly Journal of Science_, xiii. 156 _sq._]

[Footnote 5: _Idem_, _Animal Intelligence_, p. 439.]

However, though most of us, on due reflection, would deny that animals are proper objects of moral censure, there is a general tendency to deal with them as if they were. The dog or the horse that obstinately refuses to submit to its master's will arouses a feeling of resentment which almost claims to be righteous; and the shock given to public feeling by some atrocious deed committed by a beast calls for retribution. As Adam Smith observes, "the dog that bites, the ox that gores, are both of them punished. If they have been the causes of the death of any person, neither the public, nor the relations of the slain, can be satisfied, unless they are put to death in their turn: nor is this merely for the security of the living, but, in some measure, to revenge the injury of the dead."[6]

[Footnote 6: Adam Smith, _Theory of Moral Sentiments_, p. 137.]

If thus our own resentment towards an animal which has caused some injury, when not duly tempered by reason, often comes near actual indignation, it is not surprising to find that, at the lower stages of human civilisation, animals are deliberately treated as responsible agents. The American Indian who eats the vermin which molest him defends his action by arguing that, as the animal has first bitten him, he is only retaliating the injury on the injurer.[7] The custom of blood-revenge is often extended to the animal world. The Kukis, says Mr. Macrae, "are of a most vindictive disposition; blood must always be shed for blood; if a tiger kills {252} any of them, near a _Parah_ [or village], the whole tribe is up in arms, and goes in pursuit of the animal; when if he is killed, the family of the deceased gives a feast of his flesh, in revenge of his having killed their relation. And should the tribe fail to destroy the tiger, in this first general pursuit of him, the family of the deceased must still continue the chase; for until they have killed either this, or some other tiger, and have given a feast of his flesh, they are in disgrace in the _Parah_, and not associated with by the rest of the inhabitants. In like manner, if a tiger destroys one of a hunting party, or of a party of warriors, on an hostile excursion, neither the one nor the other (whatever their success may have been) can return to the _Parah_, without being disgraced, unless they kill the tiger."[8] Of the Sea Dyaks we are told that they will not willingly take part in capturing an alligator, unless the alligator has first destroyed one of themselves; "for why, say they, should they commit an act of aggression, when he and his kindred can so easily repay them? But should the alligator take a human life, revenge becomes a sacred duty of the living relatives, who will trap the man-eater in the spirit of an officer of justice pursuing a criminal. . . . The man-eating alligator is supposed to be pursued by a righteous Nemesis; and whenever one is caught, they have a profound conviction that it must be the guilty one, or his accomplice, for no innocent leviathan could be permitted by the fates to be caught by man."[9] So, also, the Malagasy will never kill a crocodile, except in retaliation for one of their friends or neighbours who has been destroyed by a crocodile. "They believe that the wanton destruction of one of these reptiles will be followed by the loss of human life, in accordance with the principle of _lex talionis_. The inhabitants living in the neighbourhood of the lake Itàsy, to the west of the central province, are accustomed to make a yearly proclamation {253} to the crocodiles, warning them that they shall revenge the death of some of their friends by killing as many _voày_ in return, and warning the well-disposed crocodiles to keep out of the way, as they have no quarrel with them, but only with their evil-minded relatives who have taken human life."[10]

[Footnote 7: Harmon, _Journal of Voyages and Travels in the Interior of North America_, p. 327. Southey, _History of Brazil_, i. 223. _Cf._ Bastian, _Der Mensch in der Geschichte_, iii. 25.]

[Footnote 8: Macrae, 'Account of the Kookies,' in _Asiatick Researches_, vii. 189.]

[Footnote 9: Perham, 'Sea Dyak Religion,' in _Journal of the Straits Branch of the Royal Asiatic Society_, No. 10, p. 221 _sq._ _Cf._ Frazer, _Golden Bough_, ii. 390.]

[Footnote 10: Sibree, _The Great African Island_, p. 269.]

Animals are not only exposed to the blood-feud, but are often exposed to regular punishment. This is the case among the Mambettu in Central Africa. Casati mentions the following instance:--"A goat was chased and persecuted by a dog, and in the fight for self-defence the latter received a thrust from the goat's horn. The poor dog, which was the valuable property of a powerful man, died shortly after. This serious matter was much discussed and commented upon, and finally referred to the king for judgment. The poor goat was sentenced to be slaughtered before its victim's corpse, its flesh was served to the Mambettu [that is, people of the superior race], and that of the dog to the Mege [that is, people of the conquered race]."[11] Among the Maori, according to Polack, the crime of impiety is not confined to man only, but even a pig straying over a sacred place incurs the punishment of death.[12] In Muhammedan East Africa, some time ago, a dog was publicly scourged for having entered a mosque.[13] The Bogos kill a bull or cow which causes the death of a man.[14] According to the native code of Malacca, if a buffalo or a head of cattle "be tied in the forest, in a place where people are not in the habit of passing, and there gore anybody to death, it shall be put to death"; but the owner of the animal shall not be held liable.[15] According to Hebrew law, "if an ox gore a man or a woman, that they die: then the ox shall be surely stoned, and his flesh shall not be eaten"; and, in the case of sexual intercourse {254} between a man, or woman, and a beast, not only the human offender, but the beast, is to be put to death.[16] It is prescribed in the Vendîdâd that, if a mad dog which bites without barking, smite a sheep or wound a man, "the dog shall pay for the wound of the wounded as for wilful murder."[17] Plato had undoubtedly borrowed from Attic custom or law the idea which underlies the following regulation in his 'Laws':--"If a beast of burden or other animal cause the death of any one, except in the case of anything of that kind happening to a competitor in the public contests, the kinsman of the deceased shall prosecute the slayer for murder, and the wardens of the country, such, and so many as the kinsman appoint, shall try the cause, and let the beast when condemned be slain by them, and let them cast it beyond the borders."[18] In various European countries animals have been judicially sentenced to death, and publicly executed, in retribution for injuries inflicted by them. Advocates were assigned to defend the accused animals, and the whole proceedings, trial, sentence, and execution, were conducted with all the strictest formalities of justice.[19] These proceedings seem to have been particularly common from the end of the thirteenth till the seventeenth century; the last case in France occurred as late as 1845.[20] Not only domestic animals, but even wild ones, were thus put on trial.[21] "In 1565 the Arlesians asked for the expulsion of the grasshoppers. The case came before the Tribunal de l'Officialité, and Maître Marin was assigned to the insects as counsel. He defended his clients with much zeal. Since the accused had been created, he argued that they were justified in eating what was necessary to them. The opposite counsel cited the serpent in the Garden of Eden, and sundry other animals {255} mentioned in Scripture, as having incurred severe penalties. The grasshoppers got the worst of it, and were ordered to quit the territory, with a threat of anathematisation from the altar, to be repeated till the last of them had obeyed the sentence of the honourable court."[22] From an earlier period we have records of maledictions and excommunications of vermin and obnoxious insects. In 1120, a bishop of Laon is reported to have excommunicated the caterpillars which were ravaging his diocese, with the same formula as that employed the previous year by the Council of Rheims in cursing the priests who persisted in marrying in spite of the canons.[23] Such maledictions and excommunications, however, were probably regarded rather as magical means of expulsion than as punishments.[24] Not long ago, when swarms of locusts ravaged the gardens of Tangier, the Shereef of Wazzan expelled the injurious animals by spitting into the mouth of one of them.

[Footnote 11: Casati, _Ten Years in Equatoria_, i. 176.]

[Footnote 12: Polack, _Manners and Customs of the New Zealanders_, i. 240.]

[Footnote 13: von Amira, _Thierstrafen und Thierprocesse_, p. 30.]

[Footnote 14: Munzinger, _Die Sitten und das Recht der Bogos_, p. 83.]

[Footnote 15: Newbold, _British Settlements in the Straits of Malacca_, ii. 257.]

[Footnote 16: _Exodus_, xxi. 28 _sq._ _Leviticus_, xx. 15 _sq._]

[Footnote 17: _ Vendîdâd_, xiii. 31. _Cf._ _ibid._ xiii. 32 _sqq._; _Yasts_, xxiv. 44.]

[Footnote 18: Plato, _Leges_, ix. 873.]

[Footnote 19: Chambers, _Book of Days_, i. 127. Pertile, 'Gli animali in giudizio,' in _Atti del R. Instituto Veneto_, ser. vi. vol. iv. 139. ]

[Footnote 20: von Amira, _Thierstrafen_, pp. 2, 15, 16, 28 _sq._ In England such proceedings seem to have hardly occurred at all (_ibid._ p. 15), but, as we shall see, an animal which caused the death of a man was forfeited as deodand.]

[Footnote 21: See Chambers, _op. cit._ i. 127 _sq._]

[Footnote 22: Marlinengo-Cesaresco, _Essays in the Study of Folk-Songs_, p. 183 _sq._]

[Footnote 23: Desmaze, _Les pénalités anciennes_, p. 31 _sq._]

[Footnote 24: This is the opinion of von Amira, who, however--as it seems to me, without sufficient evidence--suggests that the maledictions did not refer to ordinary animals, but to human souls or devils in disguise (_Thierstrafen_, p. 16 _sqq._).]

It has been suggested that the mediæval practice of punishing animals after human fashion was derived from the Mosaic law.[25] But this hypothesis does not account for the comparatively late appearance of the practice, nor for the fact that, in some cases, other punishments short of death were inflicted upon offending beasts.[26] It seems much more probable that the procedure in question developed out of an ancient European custom, to which it stood in the relationship of punishment to revenge.[27] According to the customs or laws of various so-called Aryan peoples--Greeks,[28] Romans,[29] Teutons,[30] Celts,[31] Slavs,[32]--an {256} animal which did some serious damage, especially if it caused the death of a man, was to be given up to the injured party, or his family, obviously in order that it might be retaliated upon.[33] According to the Welsh Laws, "that is the only case in which the murderer is to be given up for his deed."[34] The fact that afterwards, in the later Middle Ages, this form of reprisal was in certain instances transformed into regular punishment, only implies that the principle according to which punishment succeeded vengeance in the case of human crimes was, by way of analogy, extended to injuries committed by animals.

[Footnote 25: _Ibid._ pp. 4, 47 _sqq._]

[Footnote 26: Pertile, _loc. cit._ p. 148.]

[Footnote 27: _Cf._ Brunner, _Forschungen zur Geschichte des deutschen und französischen Rechtes_, p. 517 _sqq._]

[Footnote 28: Plutarch, _Vita Solonis_, 24. Xenophon, _Historiæ Græcæ_, ii. 4. 41.]

[Footnote 29: _Institutiones_, iv. 9. _Digesta_, ix. 1.]

[Footnote 30: _Lex Salica_ (cod. i.), 36. _Lex Ripuariorum_, 46. Grimm, _Deutsche Rechtsalterthümer_, p. 664 _sqq._ Brunner, _Forschungen_, p. 513 _sqq._]

[Footnote 31: _Ancient Laws of Ireland_, i. 161; iv. 177, 179, 181. _Welsh Laws_, iv. i. 17 (_Ancient Laws and Institutes of Wales_, p. 391).]

[Footnote 32: Macieiowski, _Slavische Rechtsgeschichte_, iv. 333.]

[Footnote 33: See _Lex Wisigothorum_, viii. 4. 20; _Schwabenspiegel_, Landrechtbuch, 204; Dirksen, _Civilistische Abhandlungen_, i. 104; von Jhering, _Geist des römischen Rechts_, i. 123; Hepp, _Die Zurechnung auf dem Gebiete des Civilrechts_, p. 103; Grimm, _Deutsche Rechtsalterthümer_, p. 664; Brunner, _Deutsche Rechtsgeschichte_, ii. 556; _Idem_, _Forschungen_, p. 513.]

[Footnote 34: _Welsh Laws_, iv. 1. 17 (_Ancient Laws and Institutes of Wales_, p. 391).]

There has been considerable diversity of opinion concerning the purpose of inflicting punishments upon animals. Some writers suggest that it was possibly done with a view to deterring other animals from committing similar injuries.[35] According to others, the animal was executed in order that the hateful act should be forgotten; Gratian, referring to St. Augustine,[36] says, "Non propter culpam, sed propter memoriam facti pecus occiditur, ad quod mulier accesserit."[37] A theory which has gained much adherence explains the punishment as a symbolic act, performed for the purpose of inspiring horror of the crime into the minds of men.[38] M. Thonissen maintains that, at Athens, "on frappait l'animal auteur d'un homicide, afin que le peuple, en voyant périr un être privé de raison, conçut une grande horreur pour l'effusion du sang humain."[39] It has also been supposed that the animal was punished with intention to intimidate those {257} who were responsible for its acts,[40] or that it was killed because it was dangerous.[41] But the true solution of the problem seems simple enough. The animal had to suffer on account of the indignation it aroused. It was regarded as responsible for its deed.[42] In early records the punishment is frequently spoken of as an act of "justice";[43] and the protests of Beaumanoir and others against this opinion[44] only show that it was held in good earnest, if not by all, at least by many. From certain details we can also see how closely the responsibility ascribed to animals resembled the responsibility of men. In some of the texts of the Salic law the animal is spoken of as "auctor criminis."[45] In an ancient Irish law-tract it is said that, when a bee has blinded a person's eye, the whole hive "shall pay the fine," and "the many become accountable for the crime of one, although they all have not attacked."[46] Youth was a ground for acquittal, as appears from a case which occurred at Lavegny in 1457, when a sow and her six young ones were tried on a charge of their having murdered and partly eaten a child: whilst the sow, being found guilty, was condemned to death, the young pigs were acquitted on account of their youth and the bad example of their mother.[47] In Burgundy, a distinction was made between a mischievous dog that entered a room through an open door and one that committed a burglary; the latter was a _larron_, and was to be punished as such.[48] The repetition of a crime aggravated the punishment;[49] {258} and the animal "principal" was punished more severely than the "accessories.[50]

[Footnote 35: Leibniz, _Essais de Theodicée_, p. 182 _sq._ Lessona, quoted by d'Addosio, _Bestie delinquenti_, p. 145.]

[Footnote 36: St. Augustine, _Quæstiones in Leviticum_, 74 (_ad Lev._ xx. 16): "Nam pecora inde credendum est jussa interfici, quia tali flagitio contaminata, indignam refricant facti memoriam" (Migne, _Patrologiæ cursus_, xxxiv. 709).]

[Footnote 37: Gratian, _Decretum_, ii. 15. 1. 4. _Cf._ _Mishna_, fol. 54, quoted by Rabbinowicz, _Législation criminelle du Talmud_, p. 116.]

[Footnote 38: Ayrault, _Des procès faicts au cadaver, aux cendres, à la mémoire, aux bestes brutes_, fol. 24. Ortolan, _Éléments du droit pénal_, p. 188. Tissot, _Le droit pénal_, i. 19 _sq._]

[Footnote 39: Thonissen, _Le droit pénal de la république Athénienne_, p. 414.]

[Footnote 40: Du Boys, quoted by d'Addosio, _op. cit._ p. 139.]

[Footnote 41: Lessona, quoted _ibid._ p. 145.]

[Footnote 42: _Cf._ Post, _Die Grundlagen des Rechts_, p. 359; Friedrichs, 'Mensch und Person,' in _Das Ausland_, 1891, pp. 300, 315; and, especially, d'Addosio, _op. cit._ p. 146 _sqq._: "Nel medioevo si punì l'animale perchè lo si ritenne in certo modo _conscio_ delle sue azioni, in certo modo _libero_, in certo modo _responsabile_."]

[Footnote 43: von Amira. _op. cit._ p. 9.]

[Footnote 44: Beaumanoir, _Les coutumes du Beauvoisis_, lxix. 6, vol. ii. 485 _sq._ Chambers, _op. cit._ i. 127. Lichtenberg, _Vermischte Schriften_, iv. 481.]

[Footnote 45: _Lex Salica_, edited by Hessels, coll. 209-212, 215.]

[Footnote 46: _Ancient Laws of Ireland_, iv. 179.]

[Footnote 47: Chambers, _op. cit._ i. 128.]

[Footnote 48: _Ancien Coutumier de Bourgogne_, 23 (_Revue historique de droit français et étranger_, iii. 549): "Il deust hauoir faire justice del larron."]

[Footnote 49: Pertile, _loc. cit._ p. 148: "La _Carta de Logu_ d'Eleonora giudicessa d'Arborea (1395) prescrive: che venendo trovato un asino in danno sui fondi altrui, per la prima volta gli si tagli un orecchio; la seconda, l'altro; e la terza, si confischi la bestia consegnandola alla corte principesca." _Cf._ _Vendîdâd_, xiii. 32 _sqq._]

[Footnote 50: d'Addosio, _op. cit._ p. 16.]

Considering the feelings to which even the cultured mind is susceptible with reference to a mischievous beast, it is not difficult to understand the attitude of the ignorant. The savage, not only momentarily, while in a rage, but permanently and in cold blood, obliterates the boundaries between man and beast. He regards all animals as practically on a footing of equality with man. He believes that they are endowed with feelings and intelligence like men, that they are united into families and tribes like men, that they have various languages like human tribes, that they possess souls which survive the death of the bodies just as is the case with human souls. He tells of animals that have been the ancestors of men, of men that have become animals, of marriages that take place between men and beasts. He also believes that he who slays an animal will be exposed to the vengeance either of its disembodied spirit, or of all the other animals of the same species which, quite after human fashion, are bound to resent the injury done to one of their number.[51] Is it not natural, then, that the savage should give like for like? If it is the duty of animals to take vengeance upon men, is it not equally the duty of men to take vengeance upon animals?

[Footnote 51: Tylor, _Primitive Culture_, i. 467 _sqq._ Frazer, _Golden Bough_, ii. 389 _sqq._ Liebrecht, _Zur Volkskunde_, p. 17. Achelis, _Moderne Völkerkunde_, p. 373 _sqq._ _Idem_, 'Animal Worship,' in _Open Court_, xi. 705 _sq._ Waitz, _Anthropologie der Naturvölker_, ii. 180 (Negroes). von den Steinen, _Unter den Naturvölkern Zentral-Brasiliens_, p. 351. Im Thurn, _Among the Indians of Guiana_, p. 350 _sqq._ Dorman, _Origin of Primitive Superstitions_, pp. 223, 253. Lumholtz, _Unknown Mexico_, i. 331 (Tarahumares). Mooney, 'Myths of the Cherokee,' in _Ann. Rep. Bur. Ethn._ xix. pp. 250, 261 _sq._ Nelson, 'Eskimo about Bering Strait,' _ibid._ xviii. 423. Hose and McDougall, 'Relations between Men and Animals in Sarawak,' in _Jour. Anthr. Inst._ xxxi. 173 _sqq._, especially p. 205 _sq._]

Nor are these beliefs restricted to savages. Muhammedans maintain, not only that animals will share with men the general resurrection, but that they will be judged according to their works. Their tradition says that God "will raise up animals at the last day to receive {259} reward and to show His perfection and His justice. Then the hornless goat will be revenged on the horned one."[52] We can hardly wonder that the Zoroastrian law inflicted punishments on dogs which hurt men or animals, when we read in the Vendîdâd that a dog has the characters of eight sorts of people.[53] The fable and the _Märchen_ for a long time related in good earnest their stories of animals that behaved exactly like men.[54] Even to this day, in certain districts of Europe, as soon as a peasant is dead, it is customary for his heir to announce the change of ownership to every beast in the stall, and to the bees also;[55] and in some parts of Poland, when the corpse of the rustic proprietor is being carried out, all his cattle are let loose, that they may take leave of their old master.[56] In the Middle Ages animals were sometimes accepted as witnesses; a man who was accused of having committed a murder in his house appeared before the tribunal with his cat, his dog, and his cock, swore in their presence that he was innocent, and was acquitted.[57] It was not only the common people that ascribed intelligence to beasts. According to Porphyry, all the philosophers who have endeavoured to discover the truth concerning animals have acknowledged that they to a certain extent participate of reason;[58] and the same idea is expressed by Christian writers of a much later date. In the sixteenth century, Benoît wrote that animals often speak.[59] In the middle of the following century, Hieronymus Rorarius published a book entitled 'Quod animalia bruta ratione utantur melius homine.' And about the same time Johann Crell, in his 'Ethica Christiana,' expressed the opinion that animals at all events possess faculties analogous to reason and free-will, that they have something similar to virtues and vices, that they {260} deserve something like rewards and punishments, and are consequently punished by God and man.[60] This, as it seems to me, is the correct explanation of the mediæval practice of punishing animals, even though, in some cases, as M. Ménabréa observes, the obnoxious animal was regarded as an embodiment of some evil spirit and was punished as such.[61] The beast or insect was retaliated upon for the simple reason that it was regarded as a rational being.

[Footnote 52: _Koran_, vi. 38. Sell, _Faith of Islám_, p. 223.]

[Footnote 53: _Vendîdâd_, xiii. 44 _sqq._]

[Footnote 54: See Grimm, _Reinhart Fuchs_, p. i. _sqq._]

[Footnote 55: Ralston, _Songs of the Russian People_, p. 315. Wuttke, _Der deutsche Volksaberglaube der Gegenwart_, p. 428.]

[Footnote 56: Ralston, _op. cit._ p. 318.]

[Footnote 57: Michelet, _Origines du droit français_, pp. 76, 279 _sq._ Chambers, _op. cit._ i. 129.]

[Footnote 58: Porphyry, _De abstinentia ab esu animalium_, iii. 6.]

[Footnote 59: Benoît, quoted by d'Addosio, _op. cit._ p. 214.]

[Footnote 60: Crell, _Ethica Christiana_, ii. 1, p. 65 _sq._:--"Hinc aliquid etiam virtuti et vitio simile, seu recte et prave factum: quorum illud est, cum bruta naturæ suæ ductum sequuntur, hoc cum a naturali via exorbitant. Unde tandem etiam aliquid **præmio aut p[oe]næ, et huic quidem maxime simile. Unde bestias etiam a Deo punitas, aut p[oe]nas certas lege illis constitutas, cernimus."]

[Footnote 61: Ménabréa, _De l'origine de la forme et de l'esprit des jugements rendus au moyen-age contre les animaux_, p. 35.]

At the earlier stages of civilisation even inanimate things are treated as if they were responsible agents. The Kukis take revenge not only on a murderous tiger, but on a murderous tree. "If a man should happen to be killed, by an accidental fall from a tree, all his relations assemble, and cut it down; and however large it may be, they reduce it to chips, which they scatter in the winds, for having, as they say, been the cause of the death of their brother."[62] Among the aborigines of Western Victoria, "when the spear or weapon of an enemy has killed a friend, it is always burnt by the relatives of the deceased; but those captured in battle are kept, and used by the conquerors."[63] The North American Redskins, when struck with an arrow in battle, "will tear it from the wound, break and bite it with their teeth, and dash it on the ground."[64] The British Guiana Indian, when hurt either by falling on a rock, or by the rock falling on him, "attributes the blame, by a line of argument still not uncommon in more civilised life, to the rock."[65] The gods of the Vedic age cursed the trees which had injured them.[66] Xerxes commanded {261} that the Hellespont should be stricken with three hundred lashes,[67] and Cyrus "wreaked his vengeance" on the river Gyndes by dispersing it through three hundred and sixty channels.[68] Pausanias relates that when Theagenes had died, one of his enemies went up to his statue every night, and whipped the brass. At last, however, "the statue checked his insolence by falling on him; but the sons of the deceased prosecuted the statue for murder. The Thasians sank the statue in the sea, herein following the view taken by Draco, who, in the laws touching homicide which he drew up for the Athenians, enacted that even lifeless things should be banished if they fell on anybody and killed him."[69] As Dr. Frazer remarks, the punishment of inanimate objects for having accidentally been the cause of death was probably much older than Draco.[70] At Athens there was a special tribunal for the purpose.[71] Demosthenes states that, if a stone or a piece of wood or iron or any such thing fell and struck a man, and the person who threw the thing was not known, but the people knew, and were in possession of, the object which killed the man, that object was brought to trial at the court of the Prytaneum.[72] Plato lays down the following rule in his 'Laws':--"If any lifeless thing deprive a man of life, except in the case of a thunderbolt or other fatal dart sent from the gods,--whether a man is killed by lifeless objects falling upon him, or by his falling upon them, the nearest of kin shall appoint the nearest neighbour to be a judge, and thereby acquit himself and the whole family of guilt. And he shall cast forth the guilty thing beyond the border."[73] Teutonic law, which still recognised the principle of private revenge, treated the inanimate murderer with less ceremony.[74] According to the Laws of Alfred, when men were at work together in {262} a forest, and by misadventure one let a tree fall on another, which killed him, the tree belonged to the dead man's kinsfolk if they took it away within thirty days.[75] Later on, in England, a thing by which death was caused was "forfeited to God, that is to the King, God's Lieutenant on earth, to be distributed in works of charity for the appeasing of God's wrath."[76] This law remained in force till 1846.[77]

[Footnote 62: Macrae, in _Asiatick Researches_, vii. 189 _sq._]

[Footnote 63: Dawson, _Australian Aborigines_, p. 53.]

[Footnote 64: Robertson, _History of America_, i. 351 _sq._]

[Footnote 65: Im Thurn, _op. cit._ p. 354.]

[Footnote 66: Oldenberg, _Religion des Veda_, p. 518.]

[Footnote 67: Herodotus, vii. 35.]

[Footnote 68: _Ibid._ i. 190.]

[Footnote 69: Pausanias, vi. 11. 6. _Cf._ _ibid._ v. 27. 10.]

[Footnote 70: Frazer, _Pausanias_, ii. 371.]

[Footnote 71: Aristotle, _De republica Atheniensium_, 57. Pausanias, i. 28. 10.]

[Footnote 72: Demosthenes, _Contra Aristocratem_, 76, p. 645.]

[Footnote 73: Plato, _Leges_, ix. 873 _sq._]

[Footnote 74: See Trummer, _Vorträge über Tortur, &c._ i. 376 _sq._ Brunner, _Forschungen_, p. 521 _sqq._]

[Footnote 75: _Laws of Alfred_, ii. 13.]

[Footnote 76: Coke. _Third Part of the Institutes of the Laws of England_, p. 57.]

[Footnote 77: Stephen, _History of the Criminal Law of England_, iii. 78. Pollock and Maitland, _History of English Law before the Time of Edward I._ ii. 473.]

In some of these cases superstitious dread may have been a motive for destroying or banishing the instrument of death. There are facts which prove that such an object is looked upon as a source of danger. According to the Ripuarian law, people are forbidden to make use of a thing which has been "auctor interfectionis";[78] and in Norway, in quite modern times, sickles, axes, and other objects with which men have been killed, have been seen lying about abandoned and unused.[79] Again, among the aborigines of West Australia, if a person has been killed by a thrust of the native wooden spear, _ghici_, his country-men think that his soul remains in the point of the weapon which caused his death, and they burn it after his burial, so that the soul may depart.[80] But it is also obvious that an inanimate thing which is the cause of a hurt is apt to evoke a genuine feeling of resentment. We kick the chair over which we stumble, we curse the stone which hurts us; Dr Nansen says that, when he was crossing Greenland, it would have caused him "quite real satisfaction" to destroy a sledge which was **"heavy to draw."[81] When we thus behave as if the offending object were capable of feeling our resentment, we for a moment vaguely believe that it is alive.[82] But our anger very soon passes {263} away when we realise the true nature of its object. The case is different with men at earlier stages of civilisation. They do not suppose that things which hurt them are senseless; on the contrary, they personify such things, not only hastily and momentarily, but deliberately and permanently; hence their resentment lasts. The Guiana Indian, says Sir E. F. Im Thurn, "attributes any calamity which may happen to him to the intention of the immediate instrument of its infliction, and he not unnaturally sees in the action of this instrument evidence of its possession of a spirit."[83] Trees, especially, are very commonly supposed to possess souls similar to those of men, and are treated accordingly.[84] Pausanias writes that "lifeless things are said to have inflicted of their own accord a righteous punishment on men"; and as the best and most famous instance of this he mentions the sword of Cambyses.[85] In England the inanimate murderer was to be given up to the kinsmen of the slain surely not as a compensation for the loss they had suffered, but as an object upon which their vengeance was to be wreaked.[86] It was called _la bane_, that is, "the slayer"; Bracton also calls it the "malefactor."[87] It did not matter that its owner was recognised as innocent; the punishment was not intended for him.[88] But in some well-defined cases the "slayer" was free from guilt. A ship or other vessel from which a person was drowned by misfortune was not forfeited as deodand in case the accident happened in salt water--as Coke indicates, on account of the great dangers to which the vessel is exposed "upon the raging waves in respect of the wind and tempest."[89] Moreover, if a boy under fourteen fell from a cart, or from a horse, it was {264} no deodand, "because he was not of discretion to look to himself," and so the cart, or horse, could not be regarded as blamable. But if a cart ran over a boy, or a tree fell upon him, or a bull gored him, it was deodand, because, apparently, it went out of its way to kill him.[90] The fact of motion was one of considerable importance in the case of animals and inanimate things, as it was in the case of men. Thus Bracton would distinguish between the horse which throws a man and the horse off which a man tumbles, between the tree that falls and the tree against which a man is thrown; and, as a general rule, a thing was not a deodand unless it could be said "movere ad mortem."[91] If anybody was drowned by falling from a ship under sail, not only the ship itself but the things moving in it were deemed the cause of his death; whereas the merchandise lying at the bottom of the vessel was not presumed to be guilty, and consequently was not forfeited.[92] But if any particular merchandise fell upon a person and caused his death, that merchandise became a deodand, and not the ship.[93] As Mr. Holmes observes, a ship is the most persistent example of motion giving personality to a thing. "She" is still personified not only in common parlance, but in courts of justice. In maritime cases of quite recent date judges of great repute have pronounced the proceeding to be, not against the owner, but "against the vessel for an offence committed by the vessel."[94]

[Footnote 78: _Lex Ripuariorum_, lxx. 1.]

[Footnote 79: Liebrccht, _Zur Volkskund_, p. 313.]

[Footnote 80: Salvado, _Mémoires historiques sur l'Australie_, p. 260 _sq._]

[Footnote 81: Nansen, _Eskimo Life_, p. 213 _sq._]

[Footnote 82: _Cf._ Dugald Stewart, _Philosophy of the Active and Moral Powers of Man_, i. 125; Hall, 'Study of Anger,' in _American Journal of Psychology_, x. 506 _sq._]

[Footnote 83: Im Thurn, _op. cit._ p. 354.]

[Footnote 84: See Frazer, _Golden Bough_, i. 169 _sqq._]

[Footnote 85: Pausanias, i. 28. 11.]

[Footnote 86: Pollock and Maitland, ii. 474.]

[Footnote 87: Bracton, _De Legibus et Consuetudinibus Angliæ_, fol. 116, vol. ii. 236 _sq._]

[Footnote 88: Holmes, _Common Law_, p. 25.]

[Footnote 89: Bracton, _op. cit._ fol. 122, vol. ii. 286 _sq._ Coke, _op. cit._ p. 58. Sir James Stephen supposes (_op. cit._ iii. 78) that "deodands were not in use at sea, because the local customs of England did not extend to the high seas." But Coke expressly says (p. 58) that there can be no deodand of the ship even "in _aqua salsa_, being any arm of the sea, though it be in the body of the County."]

[Footnote 90: Coke, _op. cit._ p. 57. Hale, _History of the Pleas of the Crown_, i. 422. Stephen, _op. cit._ iii. 78.]

[Footnote 91: Bracton, _op. cit._ fol. 136 b, vol. ii, 400 _sq._ Hale, _op. cit._ i. 420 _sqq._ Pollock and Maitland, _op. cit._ ii. 474, n. 4. Stephen, _op. cit._ iii. 77. Holmes, _op. cit._ p. 25 _sq._]

[Footnote 92: Britton, i. 2. 14, vol. i. 16.]

[Footnote 93: Hale, _op. cit._ i. 422.]

[Footnote 94: Holmes, _op. cit._ p. 29.]

* * * * *

Like the lower animals, human beings in their earliest childhood are incapable of forming notions of right and wrong, hence they are not responsible for any act of theirs. Responsibility commences with the dawn of a moral consciousness, and increases along with the evolution of the intellect. Only by slow degrees the capacity of recognising {265} act as right or wrong develops in the child. It soon learns that certain acts are forbidden, but to know that an act is forbidden is not the same as to recognise it as wrong. Nor does the knowledge of a moral rule involve the ability to apply that rule in particular cases. Nor can the youthful intellect be expected to possess the same degree of foresight as the intellect of a grown-up man. Hence the total or partial irresponsibility of childhood and early youth.

This irresponsibility is admitted by the laws of civilised nations. In England,[95] Scotland,[96] and the United States,[97] children under seven are absolutely exempt from punishment. In other modern countries criminal responsibility does not commence until the age of nine,[98] ten,[99] twelve,[100] or fourteen.[101] In some it is to be decided in each case whether a child is punishable or not.[102] Thus the French Code Pénal provides that a person under eighteen years of age shall not be punished if it be decided that he has acted without discernment (_sans discernement_) whereas, if he has acted with discernment (_avec discernement_), his punishment is to be mitigated according to a fixed scale.[103] Most laws set down an intermediate period between that of complete irresponsibility and that of complete responsibility. According to English law there is a presumption that children from seven to fourteen are not possessed of the degree of knowledge essential to criminality, though this presumption may be rebutted by proof to the contrary;[104] and, according to the German Strafgesetzbuch, a person from twelve to eighteen may be acquitted if, when he committed the offence, he did {266} not possess the intelligence requisite to know that it was criminal.[105] Other laws, again, regard a certain age _eo ipso_ as a ground of extenuation, its upper limit being fixed sometimes at sixteen,[106] sometimes at eighteen,[107] sometimes at twenty,[108] sometimes at twenty-one.[109]

[Footnote 95: Stephen, _op. cit._ ii. 97 _sq._]

[Footnote 96: Erskine-Rankine, _Principles of the Law of Scotland_, p. 546.]

[Footnote 97: Bishop, _Commentaries on the Criminal Law_, § 368, vol. i. 209.]

[Footnote 98: Italian _Codice Penale_, art. 53. Spanish _Código Penal reformado_, art. 8, § 2.]

[Footnote 99: Austrian (Finger, _op. cit._ i. 110), Dutch (van Hamel, in _Législation pénale comparée_, edited by von Liszt, p. 444), Portuguese (Tavares de Medeiros, _ibid._ p. 199), Russian (Foinitzki, _ibid._ p. 529) law.]

[Footnote 100: German _Strafgesetzbuch_, art. 55.]

[Footnote 101: Swedish (Uppström, in _Législation pénale comparée_, p. 483), Finnish (Forsman, _ibid._ p. 565) law.]

[Footnote 102: French, Belgian, Ottoman law (Rivière, _ibid._ p. 7).]

[Footnote 103: _Code Pénal_, art. 66 _sqq._]

[Footnote 104: Stephen, _op. cit._ ii. 98. Kenny, _Outlines of Criminal Law_, p. 50.]

[Footnote 105: _Strafgesetzbuch_, art. 56.]

[Footnote 106: Dutch law (van Hamel, _loc. cit._ p. 444).]

[Footnote 107: Spanish (_Código Penal reformado_, art. 9, § 2), Swedish (Uppström, _loc. cit._ p. 484), Finnish (Forsman, _loc. cit._ p. 566) law.]

[Footnote 108: Austrian law (Finger, _op. cit._ i. 112).]

[Footnote 109: Italian (_Codice Penale_, art. 56), Russian (Foinitzki, _loc. cit._ p. 529), Portuguese (Tavares de Medeiros, _loc. cit._ p. 199), Brazilian (_Codigo Penal dos Estados Unidos do Brazil_, art. 42, § 11) law. According to the _Ottoman Penal Code_, art. 40, "a guilty person who has not arrived at the age of puberty may not be punished with the punishment enacted against the offence of which he has been found guilty."]

Roman law, as it seems, made out a _præsumptio juris_ of general incapacity to commit a crime under puberty, rebuttable by evidence of capacity, at any rate in the age called "next to puberty," the limits of which are not clearly settled.[110] In the Irish Book of Aicill it is said that "the man who incites a fool is he who pays for his crime"; and to this the Commentary adds that a man is a fool till the end of seven years, and a fool of half sense till the end of fourteen[111]--a provision similar to that of Canon Law.[112] According to Muhammedan law, the rule of talion is applicable only to persons of age.[113] In China criminal responsibility is affected not only by youth, but by old age as well. "Offenders whose age is not more than seven nor less than ninety years, shall not suffer punishment in any case, except in that of treason or rebellion." "Any offender whose age is not more than ten nor less than eighty years, . . . shall, when the crime is capital, but not {267} amounting to treason, be recommended to the particular consideration and decision of His Imperial Majesty." And "any offender whose age is not more than fifteen, nor less than seventy years . . . shall be allowed to redeem himself from any punishment less than capital, by the payment of the established fine, except in the case of persons condemned to banishment as accessories to the crimes of treason, rebellion, murder of three or more persons in one family, or homicide by magic or poisoning, upon all of which offenders the laws shall be strictly executed."[114]

[Footnote 110: Clark, _Analysis of Criminal Liability_, p. 70. von Jhering, _Das Schuldmoment im römischen Privatrecht_, p. 42 _sqq._ Mommsen _Römisches Strafrecht_, p. 75 _sq._ In the _Institutiones_ (i. 22) puberty is fixed at the completion of the fourteenth year for males, and of the twelfth for females. According to the Law of the Twelve Tables, children were punished for theft, though less severely than adults (Gellius, _Noctes Atticæ_, xi. 18. 8. Pliny, _Historia naturalis_, xviii. 3).]

[Footnote 111: _Ancient Laws of Ireland_, iii. 157.]

[Footnote 112: Katz, _Grundriss des kanonischen Strafrechts_, p. 8.]

[Footnote 113: Sachau, _Muhammedanisches Recht_, p. 762. Jaffur Shurreef says (_Qanoon-e-Islam_, p. 36) that, among the Muhammedans of India, previous to the period of puberty all the good and evil deeds of boys and girls are laid to the charge of their parents.]

[Footnote 114: _Ta Tsing Leu Lee_, sec. xxii. _sq._]

According to early custom, children who have committed an injury are sometimes,[115] but not always,[116] subject to the rule of retaliation. Even in Homeric Greece, manslaughter committed in childhood seems to have been visited with banishment for life.[117] In other cases parents are responsible for the deeds of their children.[118] Among the West African Fjort, for instance, children are not themselves liable for their actions, but the injured party can claim compensation from the parents if he likes to do so.[119] Among the Teutons, "like the master for the slave, the father answered for and made claims on behalf of the child. The ceremony of investing him with arms as a _wehrhaft_, or weapon-bearing member of the community, was the usual period for the assumption of rights and liabilities; and this customarily (not always) took place at the age of twelve."[120] According to ancient Swedish law, an injury was treated in the same way as if it had been accidental, in case the offender was under the age of fifteen;[121] according to the Icelandic Grágás, in case he was {268} under sixteen.[122] However, as we have seen, accidental injuries had to be paid for. Where offences are dealt with according to the principle of compensation, it is impossible to decide how far parents' liability for their children involves a recognition of the moral irresponsibility of the child, or is simply due to the fact that children, having no property, are themselves unable to compensate. That the latter point of view was largely adopted by early custom and law appears from the fact that, when compensation was succeeded by punishment, the period of irresponsibility was reduced. In England the age-limit of twelve years, which prevailed in Anglo-Norman days, was afterwards disregarded in criminal cases.[123] We read in the Northumberland Assize Roll, A.D. 1279, "Reginald . . . aged four, by misadventure slew Robert . . . aged two; the justice granted that he might have his life and members because of his tender age."[124] A little later we hear that a child under the age of seven shall not suffer judgment in a case of homicide.[125] In 1457, an infant of four was held liable in trespass, though the language of the court shows a disposition to exempt the infant.[126] From the eighteenth century instances are recorded of a girl of thirteen who was burnt for killing her mistress, and of a boy of eight who was hanged for arson.[127] In 1748, a boy of ten, being convicted for the murder of a girl of five, was sentenced to death, and all the judges to whom this case was reported agreed that, "in justice to the publick," the law ought to take its course. The execution, however, was respited, and the boy at last had the benefit of His Majesty's pardon.[128] It appears from these facts, and from others of a similar character referring to continental countries,[129] that there has been a tendency to raise the age {269} at which full legal responsibility commences. And we have reason to hope that legislation has not yet said its last word on the subject.

[Footnote 115: Senfft, in Steinmetz, _Rechtsverhältnisse_, p. 449 (Marshall Islanders). Miklosich, 'Blutrache bei den Slaven,' in _Denkschriften d. kaiserl. Akadamie d. Wissensch. Philos.-hist. Classe_, Vienna, xxxvi. 131 (Turks of Daghestan). See also _supra_, p. 217 _sq._]

[Footnote 116: Lang, in Steinmetz, _Rechtsverhältnisse_, p. 257 (Washambala).]

[Footnote 117: _Iliad_, xxiii. 85 _sqq._ _Cf._ Müller, _Dissertations on the Eumenides_, p. 95.]

[Footnote 118: Nicole, in Steinmetz, _Rechtsverhältnisse_ p. 132 (Diakité-Sarrakolese). Marx, _ibid._ p. 357 (Amahlubi).]

[Footnote 119: Dennett, in _Jour. African Society_, i. 276.]

[Footnote 120: Wigmore, 'Responsibility for Tortious Acts,' in _Harvard Law Review_, vii. 447.]

[Footnote 121: Wilda, _Strafrecht der Germanen_, p. 642 _sq._ Nordström, _Bidrag till den svenska samhälls-författningens historia_, ii. 73. _Cf._ von Amira, _Nordgermanisches Obligationenrecht_, i. 375 _sq._]

[Footnote 122: _Grágás_, Vigsloþi, 32, vol. ii. 63.]

[Footnote 123: Wigmore, _loc. cit._ p. 447.]

[Footnote 124: _Three Early Assize Rolls for the County of Northumberland_, p. 323.]

[Footnote 125: Pollock and Maitland, _op. cit._ ii. 84.]

[Footnote 126: Wigmore, _loc. cit._ p. 447 _sq._ n. 7.]

[Footnote 127: Wilson, _History of Modern English Law_, p. 124.]

[Footnote 128: Foster, _Report of Crown Cases_, p. 70 _sqq._]

[Footnote 129: Trummer, _op. cit._ i. 428, 432 _sqq._ (Germany). Jousse, _Traité de la justice criminelle de France_, ii. 617; Tissot, _Droit pénal_, i. 30 (France).]

* * * * *

The principle that intellectual incapacity lessens or excludes responsibility also applies to idiots and madmen. Though idiots are able to acquire some knowledge of general moral rules, the application of those rules is frequently beyond their powers;[130] and their capacity of foreseeing the consequences of their acts is necessarily very restricted. The same to some extent holds good of madmen; but, as will be shown in the next chapter, there is another ground for their irresponsibility besides the derangement of the intellect.

[Footnote 130: von Krafft-Ebing, _Lehrbuch der gerichtlichen Psychopathologie_, p. 70.]

All modern laws admit that, at least under certain circumstances, idiocy or madness exempts a person from criminal responsibility. According to Roman law, lunatics were even free from the obligation of paying indemnities for losses inflicted by them;[131] and so mild was their lot at Rome, that it became a practice for citizens to shirk their public duties by feigning madness.[132] Even savages recognise that lunatics and maniacs are not responsible for their deeds. The Abipones maintained that it was "wrong and irrational to use arms against those who are not in possession of their senses."[133] Among the North American Potawatomis many "are said to be 'foolish,' and not sensible of crime."[134] The Iroquois are "persuaded that a person who is not in his right senses is not to be reprehended, or at least not to be punished."[135] Hennepin states that "they had one day in the year which might be called the Festival of Fools; for in fact they pretended to be mad, rushing from hut to hut, so that if they ill-treated any one or carried off anything, they would say next day, {270} 'I was mad; I had not my senses about me.' And the others would accept this explanation and exact no vengeance."[136] The Melanesians "are sorry for lunatics and are kind to them, though their remedies are rough"; at Florida, for instance, a man went out of his mind, chased people, stole things and hid them, but "no one blamed him, because they knew that he was possessed by a _tindalo_ ghost."[137] Among the West African Fjort fools and idiots are not responsible personally for their actions.[138] Among the Wadshagga crimes committed by lunatics are judged of more leniently than others.[139] Among the Matabele madmen, being supposed to be possessed of a spirit, "were formerly under the protection of the King."[140] In Eastern Africa the natives say of an idiot or a lunatic, "He has fiends."[141] El Hajj [(]Abdssalam Shabeeny states that in Hausaland "a man guilty of a crime, who in the opinion of the judge is possessed by an evil spirit, is not punished."[142]

[Footnote 131: von Vangerow, _Lehrbuch der Pandekten_, iii. 36. von Jhering, _Das Schuldmoment im römischen Privatrecht_, p. 42. Thon, _Rechtsnorm und subjectives Recht_, p. 106, n. 70.]

[Footnote 132: _Digesta_, xxvii. 10. 6.]

[Footnote 133: Dobrizhoffer, _Account of the Abipones_, ii. 234.]

[Footnote 134: Keating, _Expedition to the Source of St. Peter's River_, i. 127.]

[Footnote 135: Charlevoix, _Voyage to North America_, ii. 24 _sq._]

[Footnote 136: Hennepin, _Description de la Louisiane_, Les M[oe]urs des Sauvages, p. 71 _sq._]

[Footnote 137: Codrington, _Melanesians_, p. 218.]

[Footnote 138: Dennett, in _Jour. African Society_, i. 276.]

[Footnote 139: Merker, quoted by Kohler, in _Zeitschr. f. vergl. Rechtswiss._ xv. 64.]

[Footnote 140: Decle, _Three Years in Savage Africa_, p. 154.]

[Footnote 141: Burton, _Lake Regions of Central Africa_, ii. 320.]

[Footnote 142: [(]Abdssalam Shabeeny, _Account of Timbuctoo and Housa_, p. 49.]