486 CRIMINAL LAW cation for the sake of conformity to the chang- ing circumstances of society. So far, then, crim- inal law may be said to be simple, inasmuch as each statute is the law of the particular case referred to, and there can be no expansion or reproduction by analogy. Yet there are princi- ples applicable to this branch of the law which may, in like manner as the elementary rules of civil law, be developed into a harmonious sys- tem. Another peculiarity of criminal law, or rather of its administration at an early period, is the want of discrimination as to the palliative circumstances of crime. Motives are compara- tively little considered in early penal laws, or in the judicial proceedings founded upon them. Gibbon's remark, that " the life or death of a citizen is determined with less caution and de- lay than the most ordinary question of cove- nant or inheritance," is true only of a jurispru- dence which has retained its early crude legis- lation respecting crimes without subsequent revision. To a considerable extent this was the state of the English criminal law at the time Gibbon wrote, but it has since that time under- gone a radical change. There is a third charac- teristic of the early administration of criminal law, viz., the comparative disregard of the rules of evidence. The fact of being charged with a crime, especially if there be some strong cir- cumstance of suspicion, naturally induces a prejudice against the accused. He is deemed guilty until he proves himself innocent ; con- trary to the more humane axiom of a later age, that a man is to be deemed innocent until he is proved to be guilty. The patient investiga- tion of a case, the careful weighing of all the evidence, particularly that which is derived from circumstances, and the impartial judg- ment unswayed by popular excitement or the exacerbated passion of the injured party, be- long to a more advanced stage of civilization and jurisprudence. Illustrations of the fore- going remarks will be found in the penal laws of nations the most celebrated for their legis- lation. The laws of Draco, which on account of their undiscriminating severity were said to have been written in blood, are not to be deemed the mere expression of the cruel heart of the legislator, but rather the reflection of the sanguinary disposition of the Athenian people at that period. So the decemvirs who prepared (perhaps merely compiled) the twelve tables did not declare crimes nor impose pen- alties abhorrent to the popular disposition, but rather were actuated by the same impulses and prejudices which prevailed in the minds of the people. It was not indeed a democratic influence, for some provisions were made ex- pressly for the support of patrician power over the plebeian commonalty ; but, allowing a cer- tain degree of discrimination in the estimation of crimes as affecting one or the other class po- litically, the code of the decemvirs may be as- sumed to be a fair expression of the temper of the Roman people. Upon analysis of these celebrated laws, all the defects which we have specified as incident to early legislation become apparent. The penal largely predominates over the civil, and in respect to crimes and their penalties there is an absence of what we should deem a just discrimination respecting the rela- tive measures of crimes and the punishment due to each, and there is a want of due regard to motives or other palliative incidents. Mutila- tion of the person was punished by the re- taliatory infliction of the same injury upon the wrong doer. A false witness was to be thrown headlong from the capitol. The killing of a man, or making use of magical words to hurt him, or the preparing of poison for him, or giv- ing it to him, were subject alike to the penalty of death. A parricide was adjudged to be sewn up in a sack and thrown into the river; the addition to the contents of the sack of a cock, a viper, a dog, and an ape, were the fanciful de- vices of those who executed the law, and not prescribed by the law itself, though in the In- stitutes of Justinian they appear as if the whole had been originally so enacted. Slander by words or defamatory verses was punished by beating with a club, and the authorities cited by Gibbon seem to prove that the punishment ex- tended to death. This was undoubtedly a po- litical law, intended in the first instance for the protection of the decemvirs themselves against any rude complaint by the people. It remained, however, unrepealed, though, like other enact- ments, probably unexecuted, except for tyran- nical purposes. The treading down of another's corn field at night was punished with death ; but the cutting down of trees, whatever might be the value, was subject to a mere fine of 25 pounds of brass. But the most apt illustration of the irrational severity of these laws was the treatment of an insolvent debtor, who, without any other imputation of fraud than the fact of owing the debt and not having paid it, could be taken home by the creditor and kept 60 days, fettered with irons not exceeding 15 pounds in weight ; at the end of which time, if the debt remained unpaid, he could be brought before the people on three market days, on the last of which his body could be cut into pieces accord- ing to the number of creditors, or, if they pre- ferred, he could be sold into foreign slavery. The excessive severity of a law defeats the very object had in view in enacting it. " The crim- inal code of the decemvirs," says Gibbon, " was abolished by the humanity of accusers, witness- es, and judges ; and impunity became the con- sequence of immoderate rigor." Magistrates were prohibited from inflicting on a free citi- zen any capital or even corporal punishment. All cases affecting the life or liberty of a Roman citizen were, by the laws of the twelve tables, to be tried by the comitia centuriata. The multiplication of these cases led to the giving power annually to the praetors to sit in judg- ment on state offences, with a certain number of judges drawn from the rolls of citizens ; and new praetors were appointed with special pow- ers for the trial of offences relating only to in-
