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CHAPTER VI

EVOLUTION OF CRIMINAL LAW

SECTION 1

PRIMITIVE CRIMINAL LAW 1

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THE earliest view which we obtain of political society shows us in each case the same system prevailing for the redress of wrongs and punishment of offences, namely, a system of private revenge and personal redress of injuries. Each person avenged, in whatever manner he thought right, a wrong done him by another, and the customs of the tribe sanctioned his doing so with impunity. The idea of retaliation is one deeply rooted in man's nature. savage or a child naturally revenges an injury by inflicting a similar one on the aggressor. Retribution in kind is viewed, even in civilised societies, with satisfaction. An eye for an eye, a tooth for a tooth; whoso sheddeth man's blood, by man shall his blood be shed such is the rule in all early societies. As Mr. Moyle, in speaking of the Roman Law, well says: "A system of selfredress, in the form of private vengeance, preceded everywhere the establishment of a regular judicature; the injured person, with his kinsmen or dependents, made a foray against the wrongdoer, and swept away his cattle, and with them perhaps his wife and children, or he threatened him with supernatural penalties by 'fasting' upon him, as in the East even at the present day; or, finally, he reduced his adversary to servitude, or took his life." 2 There are only slight traces of this system of self-redress in the Roman Law of the time of Gaius and Justinian. Still there are sufficient to prove, conclusively, that the early history of Law was the same in Rome as elsewhere. When we apply ourselves to

1 [By RICHARD R. CHERRY, Barrister-at-Law; Reid Professor of Constitutional and Criminal Law in the University of Dublin. Reprinted from "Lectures, Growth of Criminal Law in Ancient Communities," Macmillan & Co., London, 1890.]

2 Justinian, "Insts.," ed. Moyle, vol. i, p. 614.

other systems of law which, from various causes, did not develop in the same manner as the Roman Law did-such, for instance, as the Brehon Laws of Ireland, and the legal systems of Semitic nations - we find the system of private retaliation in full vigour, even in the most highly developed stage to which the law ever attained. There can be no doubt, also, that the primitive history of English Criminal Law was in this respect exactly the same. "The fact," says Mr. Justice Stephen, "that private vengeance of the person wronged by a crime was the principal source to which men trusted for the administration of criminal justice in early times, is one of the most characteristic circumstances connected with English Criminal Law, and has had much to do with the development of what may, perhaps, be regarded as its principal distinctive peculiarity, namely, the degree to which a criminal trial resembles a private litigation" ("Hist. of Criminal Law," i. 245). The development of both the English and Roman systems has, in a great measure, obliterated the traces of this system of primitive retaliation; and it is difficult to trace in them the various steps of the progress to a mature system of law. It is here that we invoke the aid of the other systems of law which I have mentioned. The Brehon Laws, arrested in their growth, at an early stage of legal development, by the unfortunate history of Ireland, throw a flood of light upon the early history of Penal Law, and supply us with the missing link of legal history. They exhibit to us, flourishing in full vigour, institutions and methods of procedure, of which only very slight traces remain in the Roman Law, and the very remembrance of which has been almost entirely lost in our own more perfect system of Criminal Law.

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The primitive method for the redress of wrongs was, as I have said, simple retaliation upon the person of the wrongdoer. At this stage of human progress, Law, in any sense in which we use the term, cannot be said to have existed. It would be absurd to call savage retaliation Law; still this system of retaliation is the germ from which Penal Law has gradually developed itself; and we can, by comparing the laws of different nations at different periods of their development, actually trace the stages by which the practice of retaliation became transformed into a regular system of Criminal Law. The first stage in this progress was the growth of a custom for the injured person to accept some pecuniary satisfaction in lieu of his right of vengeance. The wrongdoer might thus buy off the revenge which he dreaded, if he chose to do This was, at first, a purely voluntary matter on both sides. ✔

so.

There was no compulsion whatsoever. It lay entirely in the discretion of the injured person whether he would accept pecuniary satisfaction or wreak his vengeance on the wrongdoer. And the latter, if he were strong enough, could safely defy his enemy, and refuse to give any satisfaction. It was altogether a matter of private bargaining; the injured man, according to his power, and according to the fierceness of his anger, exacting whatever sum he could from the wrongdoer. Gradually, however, a regular Jscale of payment was established at first, for slight injuries, and then, afterwards, for more serious offences. Custom has enormous force among uncivilized nations. Men, naturally, and without any constraint, were satisfied to accept the same compensation as others in similar positions had been content with. Still there was no compulsion - no constraint whatsoever - and no intervention of any judicial authority.

It must not be forgotten that the right of personal revenge was also in many cases a duty. A man was bound by all the force of religion and custom to avenge the death of his kinsman. This duty was by universal practice imposed upon the nearest male relative the avenger of blood, as he is called in the Scripture accounts. Among most nations, murder, like any other offence, could be compounded for between the wrongdoer and the nearest relative of the slain. We never hear of the death fine in historical times in Greece, but in Homer it is referred to more than once. Thus, in the 9th Book of the Iliad, Ajax, in reproaching Achilles for not accepting the offer of reparation made to him by Agamemnon, reminds him that even a brother's death, may be appeased by a pecuniary fine, and that the murderer, having paid the fine may remain at home among his own people free. One of the scenes said to have been depicted on the shield, of Achilles is a dispute about a death fine. Among the ancient Germans the custom prevailed universally. Tacitus tells us that atonement was made for homicide by a certain number of cattle, and that by that means the whole family was appeased. By the Lex Salica the fine was paid in money, and varied according to the rank, sex, and age of the murdered person. The early English laws were based on the same principle: the fine for homicide is constantly referred to in the laws of Edgar and Athelstan. In Sweden the death fine was also recognized by the name kinbote, as a compensation for homicide. In the Roman Law there is no trace of it,

1 See "Lex Salica," edited by Hessels and Kern. Titles 14, 24, 35,

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so far as I am aware; but the provision of the Twelve Tables regarding homicide has not been preserved to us; and it is only from an incidental reference, many centuries later, that we learn that death was the penalty imposed for the crime. It is possible that, as in the case of lesser injuries, primitive Roman Law allowed a murderer to compound for his offence by a money payment; but it is more probable, I think, that the law regarded the life of a Roman citizen as too sacred to be atoned for by money payment. Among Semitic nations the death fine was very general, and it continued to prevail in the Turkish Empire down to our own day; but the acceptance of a death penalty was distinctly forbidden to the Jews by the Mosaic legislation. The life of a man was considered too sacred to be atoned for by money. Religious influence had much to do everywhere, as we shall see, with the development of Criminal Law.

The death fine was, of course, a most important matter in cases where it was permitted to be paid and received, and it is in refer-y lie ence to it that a dispute would naturally arise: firstly, because its amount would necessarily be larger than that for lesser injuries; and, secondly, because the acceptance of too small a fine would naturally be looked upon as an evasion of his duty by the avenger of blood. The latter might accept a fine, but he could not, without disgrace, accept any small compensation for the death of his kinsman.

The first germ of any judicial proceeding is to be found in the settlement of the amount of these fines by the tribal assembly, which was held periodically among most primitive nations. Each party would naturally appeal to it, and probably in early times its principal work was the settlement of such disputes. At first the settlement was only suggested, neither party being bound by the decision; and it was not, apparently, for a very long period that any attempt was made to enforce decrees as to the amount of the fines. Where both parties were willing to refer the matter to the assembly, the decision of the latter was of course binding, and gradually it came to be usual and customary to do so.

We have, in English Law, very little trace of such a system as that which I have endeavoured to describe, but the Brehon Laws Y give us an exact picture of this state of society; and there can be little doubt that it preceded, everywhere, the establishment of a regular judicial system.

In fixing the amount of the fine to be paid, the Tribal Assembly

1 See Numbers, xxxv. 31.

would naturally pay attention to the likelihood of the injured person being satisfied with its decision. Thus the feelings of the aggrieved party, rather than the moral guilt of the offender, or even the amount of damage inflicted, was the primary matter which regulated the amount of the fine. At a later period, when law was fully developed, and the decisions of courts of justice regularly enforced, traces of this system remained in the rules regarding the penalty for different offences. The curious rule by which, according to Roman Law, a theft detected in the act was punished by a fine of twice the amount of that inflicted for a theft not so detected, is undoubtedly to be traced to this source. "The reason," says Mr. Poste, "why furtum manifestum was subjected to a heavier penalty than furtum nec manifestum, was not because the barbarous legislator supposed that detection in the act was an aggravation of the offence, but because he wished, by the amplitude of the legal remedy offered, to induce the aggrieved party not to take the law into his own hands and inflict summary vengeance on the offender." 1

The Roman Law only exhibits, incidentally, as it were, traces of the existence of such customs; but the Brehon Laws exhibit the system in full operation. The "Book of Aicill" mentions with great detail the various circumstances which are to be taken into account in fixing the amount of fines; and instances are recorded where injured persons refused, for various reasons, to accept the amount fixed.

How then did this purely voluntary system become transformed into a regularly enforced payment of the fines was a matter of gradual development. The Brehon Law tracts, for instance, contain no provision whatsoever for the enforcement of the fines, so that we are much puzzled to know what obligation there was on any one to pay. We may conjecture that when first tribal assemblies or kings began to decide disputes authoritatively, they gave (if the wrongdoer were present) such assistance as was necessary to the complainant in exacting the punishment imposed. If the wrongdoer did not attend, there was, so far as we can learn, no means of compelling him to do so; but the principle of retaliation was again invoked here. He who refused to pay the fine was deprived of its benefits. If any man refused to pay the fine im- v posed upon him by law for any offence, he was declared henceforth incapable of recovering fines for offences against himself. In other words, he was outlawed. There can be little doubt that

1 Poste's "Gaius," p. 460.

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