Page:Encyclopædia Britannica, Ninth Edition, v. 17.djvu/330

316 N E G N E G murder where there is intention. But the negligence may in some cases be of such a nature as to lead to the pre sumption of legal malice. In the same way in cases where the liability is civil it is important to notice that the phenomena of negligence often accord closely with those of intention. Thus in one case Lord Justice James speaks of " wilful negligence which leads the court to conclude that the person is an accomplice in the fraud." The phenomena of negligence and of dishonest intention may be similar to such an extent that the court may regard them as the same, since the legal consequences resulting from them are the same. It is the general view that there are three degrees of negligence, corresponding to three degrees of diligence. This is illustrated by the case of bailment. Where the bailment is for the benefit of the bailor, the bailee is bound to use only slight diligence, and is liable only for gross negligence ; where the bailment is for the benefit of bailor and bailee alike, each is bound to use ordinary diligence, and is liable for ordinary negligence ; where the bailment is for the benefit of the bailee, he is bound to use great diligence, and is liable for slight negligence. The soundness of this position, alleged to be founded on the Roman law, is open to question. Roman law probably only recognized two degrees of culpa, the term which most nearly approaches negligence. And the term "gross negligence " has been objected to as misleading (see DILIGENCE). The truth is that it is impossible to make any useful legal distinc tion of degrees of negligence, when the question of negligence is mainly a question of fact. In English law it is for the jury to say, subject to certain rules of evidence, whether a particular defendant has in a particular case fallen below the standard of the average citizen. Each case must depend to a large extent upon its own merits, aided by the consideration of a series of previous cases in which certain facts have been held by the court to be or not to be prima facie evidence of negligence to go to the jury. Contributory Negligence. As a general rule it is a defence to an action that the injury was caused by conduct of the injured person, without which the injury would not have happened. But, though a plaintiff may have been guilty of negligence which may have actually contributed to the injury, yet if the defendant could by the exercise of ordinary care and diligence have avoided the mischief the plaintiff s negligence will not excuse him. Contributory negligence of a person other than the plaintiff is no excuse for the negligence of the defendant except in the case of the legal identifi cation of the plaintiff with the negligent third party; e.g., a passenger in a train of A company is so far identified by the law with his driver that he cannot recover against B company for an injury caused by an accident to which the negligence of A com pany s driver contributed. So a child cannot recover for an injury to which the negligence of the adult in charge of the child con tributed. Nature of the Remedy. The person injured may have either a civil or a criminal remedy, or both. In most cases where the act of negligence is criminally punishable, the plaintiff may recover damages in addition. The question as to what amount or kind of negligence will bring a person within the criminal law is one by no means easy to answer. In certain cases criminal proceedings are authorized by statute, e.g., against parish authorities for refusing to call vestries (1 & 2 Will. IV. c. 60), and against persons neglecting to transmit election writs (53 Geo. III. c. 89). The question of criminal negligence arises most commonly in cases of homicide. The rule as to the functions of the jury cannot be better put than in the words of Mr Justice Stephen, wri supra: in order that negligence may be culpable, it must be of such a nature that the jury think that a person who caused death by it ought to be punished." The same high authority proceeds to point out that cases of manslaughter by negligence may be imagined in which there is no carelessness. In one matter the prisoner or defendant in criminal proceedings is under a disadvantage as compared with the defendant in an action. He cannot, as the latter can, set up contributory negligence as a defence. To this extent only is the criminal remedy wider than the civil. Where the question of contributory negligence does not arise, it may generally be said that, if an indictment will lie for negligence, a fortiori an action will lie upon the same facts. (J. W.t) NEGRO (Spanish and Italian Negro, from Latin Niger, black) in anthropology designates the distinctly dark as opposed to the fair, yellow, and brown varieties of man kind. In this its widest sense it embraces all the dark races, whose original home are the inter-tropical and sub tropical regions of the eastern hemisphere, stretching roughly from Senegambia, West Africa, to the Fiji Archi pelago, Pacific Ocean, west and east, and lying north and south between the extreme parallels of the Philippines and Tasmania. The Negro domain thus originally comprised all Africa south of the Sahara, India south of the Indo- Gangetic plains, Malaysia, and the greater part of Australasia. But this domain has since prehistoric times been intruded upon in the east mainly by peoples of the yellow Mongoloid, in the west mainly by peoples of the fair Caucasic stock. During the early and middle Tertiary epochs it appears also to have been gradually broken into two great divisions by the subsidence of lands, some suppose, which are now flooded by the waters of the Indian Ocean, and to which Sclater has given the name of Lemuria. To these two great eastern and western geographical divisions now correspond the two great ethnical divisions of the Negro stock the Papuan or Melanesian of Malaysia and Australasia, and the Negro proper of the African mainland. During the long ages that have elapsed since this separation, the two branches, if originally one, have had time under diverse outward conditions to become differentiated into two sufficiently marked physical types, so that on strictly anthropological as well as geographical grounds it becomes convenient to deal separately with the Papuan and African divisions of the Negro family. The present article is confined to the latter. For the Papuans see NEW GUINEA. Soudan (Sudan), the fertile zone stretching from the Sahara towards the equator nearly across the continent, is usually regarded as the true home of the African Negro. But, according to the views recently advanced by Lepsius, Soudan is rather an intermediate or mixed domain lying between the two Hamitic and Negro ethnical groups, which have respectively occupied northern and southern Africa from the remotest times. Certainly none of the chief native races in Soudan Mandingo, Joloff, Toucouleur in the west ; Kanembu, Haussa, Kanuri in the centre ; Maba in Wadai, Nuba in the Nile valley, least of all the Fulahs of the Chad and Niger basins can be considered as of pure Negro descent. But the same phenomenon of inter mixture is presented in the strictly equatorial and south equatorial regions, where the Fans of the Ogoway basin, the Zandey (Niam-Niam), Bongo, Bari, and other Upper- Nilotic tribes, the Waganda of the Victoria Nyanza of the extreme east, the Zulu-Kaff res of the extreme south, are all of Negroid and even sub-Negroid rather than of strictly Negro lineage. Hence the same argument that would exclude Soudan would also exclude the greater part of southern Africa, and we should have to look to the hypo thetical Lemuria or other now submerged lands for the cradle of the Negro stock. Practically, however, the whole of Africa south of the Sahara must be taken as the original habitat of the race, which is there almost everywhere still found in compact masses, although rarely perhaps abso lutely free from foreign intermixture. But wherever found in a comparatively pure state, as on the coast of Guinea, 1 in the Gaboon, along the lower Zambesi, and in the Benua and Shari basins, the African aborigines present almost a greater uniformity of physical and moral type than any of the other great divisions of mankind. By the nearly unanimous consent of anthro pologists this type occupies at the same time the lowest position in the evolutionary scale, thus affording the best material for the comparative study of the highest anthro poids and the human species. The chief points in which the Negro either approaches the Quadrumana or differs most from his own congeners are : (1) the abnormal length of the arm, which in the erect position sometimes reaches the knee-pan, and which on an average exceeds that of the 1 Here apparently is to be met the most pronounced Negro tj pe proper yet discovered. See the missionary Wilson s Ethnographic View of Western Africa, New York, 1856, published anonymously.