Popular Science Monthly/Volume 16/February 1880/The Origin of Criminal Law
|THE ORIGIN OF CRIMINAL LAW.|
ANTERIOR to all regulations for the punishment or suppression of wrongs by an exercise of public authority, there was, as is generally agreed, a time when injuries found redress only through the resentment and retaliation of the injured party or his kin.
The progress of society from this rude sort of vindictive justice toward approved systems of criminal law presents some suggestive examples of the devious paths through which early communities were led to the recognition of truths which to us appear elementary. Nor is the history of this progress less intelligible or instructive to the general reader than to the professional student of the law; since it derives its interest not from its professional bearings, but from the interesting illustration which it affords of general methods of institutional development. In order to secure an accurate conception of the legal system, the early growth of which it is proposed to examine, it may be well to premise that the criminal law, which with a substantial uniformity of cardinal ideas now prevails in all civilized states, is well defined as "that branch of juridical law treating of those wrongs which the government notices as injurious to the public, and punishes by what is called a criminal proceeding, in its own name."
If it is desired to ascertain the point at which public authority began to supersede private revenge in the punishment of wrong-doers, it is worthy of observation that instances abound of tribes among whom the only offenses punishable by public authority are treason and its cognates, such as cowardice and desertion. Such was at one time the condition of the old German nations, and a similar paucity of recognized crimes is still discoverable among many of the Polynesian and American Indian tribes, and is indeed quite characteristic of civilized races. On the other hand, probably no instance can be cited where public authority has been exercised in the punishment of other offenses prior to its employment against those of a treasonable nature.
Indeed, we can scarcely imagine a phase of society so primitive but that treason if committed would be so punished. The traitor deals his blow not at a particular individual but equally at every member of his community, each of whom is therefore impelled to retaliation by the same natural impulse to which he responds in avenging a personal injury. Consultation and combination among the members of the betrayed community, with a view to revenge, are then as much a matter of course as in the case of an ordinary private injury they are among the family of the injured party. But, if proceeded against only by virtue of this general sense of personal injury, treason would still be destitute of the characteristics of a true crime. It may be said with perfect accuracy that every criminal law has for its object either to preserve the existence of government or to secure the adequate discharge of its functions. Many acts involving no moral delinquency are declared crimes. Others of an immoral nature are not. The one thing that can be said without exception of every crime is this: that it is supposed to militate against either the existence or the functional efficiency of government. Given a government and a recognized governmental function, and a resort to penal sanctions in their aid must always have been an obvious necessity The tardy growth of criminal law is to be ascribed not to a failure of primitive societies to perceive this, but to their ignorance of what the true functions of government are. That which invested treasonable offenses with the character of true crimes before other species of wrong-doing had attained that dignity was the circumstance, now well attested, that after the family and gens the earliest governmental organizations were offensive or defensive military confederations, entered into with sole reference to organic movement against common external foes, and not with a view to internal or police regulations. That this was so no further evidence is required than to consider on the one hand how obvious and universal an expedient, even among savages, military confederation is, and on the other by what slow and unsteady steps and circuitous paths 'early societies have, as will be hereafter shown, found it necessary to advance toward the conception and inauguration of a general administration of justice. The institution of governments for military purposes involved the immediate rise of those branches of criminal jurisprudence which have for their objects respectively to preserve the government and to secure the efficient discharge of its military function. There are many of the American Indian tribes among whom the exercise of public authority for the protection of the person or property of individuals from injury is unknown, who yet in times of war organize a temporary government by the election of a military chieftain whose powers within their limited sphere are absolute, and are rigorously exercised in the punishment of treason, cowardice, desertion, and military insubordination or inefficiency. This is the extent of their criminal law.
Acts of violence by one person upon the person or property of another are not punishable, since the suppression of such acts is not among the purposes for which such a government is organized. But, for the treasonable or military offenses of which they do take notice, penalties are imposed upon the true theory of criminal jurisprudence, to uphold the government or to aid its efficiency.
It is, therefore, in this class of offenses that criminal law must have had an early but meager origin under the military confederations to which the most primitive societies intuitively resort.
It might be supposed that communities thus familiarized with the punishment of crime by public authority would rapidly develop a criminal jurisprudence by the simple and direct process of adding from time to time new crimes, perhaps in the order of their supposed enormity, to their catalogue of offenses. There are some tribes so circumstanced as at first glance to countenance this view—tribes, for instance, which, while not taking cognizance of ordinary offenses, are known occasionally to prosecute notoriously hardened or habitual offenders against the persons or property of their fellows: the murderers of general favorites, obnoxious medicine-men, or persons guilty of grossly impious or sacrilegious acts, or acts involving the people in intertribal controversies.
But it will be observed that in none of these cases does the concerted action against the offenders proceed upon the notion that it is the function of government to protect its citizens against crime. It is induced in each case simply by a widely prevailing feeling of personal resentment or fear. The murderer of the popular favorite falls a victim not to any theory of government, but to the sense of individual injury and loss shared in common by all the members of the community. The habitual offender is pursued in some such spirit as that in which we shoot down a pirate; not as a violator of law, but as an acknowledged enemy of all mankind. The medicine-man, the sacrilegist, and the offender against neighboring tribes, fall victims to the terror they inspire, the one by his reputed affinity with the powers of darkness; the second by his provoking, as is supposed, an indiscriminate visitation of divine wrath; the third by subjecting all his fellows to the hostility of adjacent tribes. They are not so much punished as sacrificed: the first two to avert the wrath of Heaven; the third to appease the offended tribes. These sporadic and personally revengeful or propitiatory punishments throw little if any light on the development of the law of crimes. They are not an essential part of that movement—the most important, interesting, and difficult in the history of criminal jurisprudence—by which society abandoned its original assumption that acts of violence or fraud between individuals are purely private grievances to be redressed by private remedies, and charged government with the function of protecting its citizens from such wrongs through proceedings conducted and punishments administered in its own name. The secret of that movement and the influence by which its progress was shaped can be gathered only from study of the antecedent practice of private retaliation. For both by its weakness and its strength the old system exercised a controlling influence over the development of the new. It was at once the chief inducement to the change and the chief obstacle to its accomplishment. In so far as public authority assumes by penal remedies to protect individuals from the criminal acts of one another, it was first called into existence, not by ordinary wrong-doing, but by an effort to restrain the abuses and excesses of retaliation as a remedial system. Its subsequent extension so as to displace the avenger and assume the punishment of wrong-doers generally was an afterthought. Thus the movement had its origin in a desire rather to mitigate punishments than to insure or increase them.
That this was true in the history of the Germanic tribes was long ago pointed out by Montesquieu with characteristic learning and ingenuity in his "Spirit of the Laws." He regarded it, however, as an experience peculiar to the Germans: to use his own language, "as contrary to the practice of all other nations." In this he was mistaken. The Germanic line of progress in criminal law, as it was pointed out by Montesquieu, instead of being unique, is substantially that which must have been pursued by all primitive communities with possibly rare and insignificant exceptions. Not only is this proposition justified by an examination of the actual processes of legal development among all races presenting the materials requisite for such an inquiry, but an analysis of the inducing causes among the Germans of this phase in their legal development will show them to have been such as were universally prevalent among mankind, and such as must have operated with remarkable uniformity.
It is to the illustration of these propositions that this paper will be mainly devoted. So far was the practice of private retaliation from being a preservative against crime, that it universally propagated more violence than it restrained. Under the most favorable circumstances, its punishments, being administered without an authoritative proceeding for the ascertainment of guilt, must frequently have fallen upon those who either were in fact, or by their relatives were thought to be, innocent. From this single infirmity of the system there must have arisen great numbers of bloody feuds, each having a tendency to propagate itself through generations. It also appears that, even in cases of acknowledged guilt, it was the custom in some communities for the family of an offender to protect him against the avenger, and to resent an attack upon him as an original injury. A family feud must then have inevitably ensued from every wrongful act of violence. Even where the system had so far matured that the right of retaliation against a willful wrong-doer was recognized by his own family, revenge (as among the Israelites) was frequently taken on account of accidental or self-defensive acts of violence. It was a matter of course that the legitimacy of such revenge should be denied, and its exercise resented by the family upon which it was wreaked.
Again, the injured family in most instances claimed a right of revenge not only against the offending individual, but, in his absence, against any member of his family—a claim which was naturally and uniformly denied and resisted. In some societies the avenger seems to have thought it incumbent on him not only to take life for life, but to take two or more for one. Among the Congo people, according to Tuckey, if one be killed by an inferior, his family proceed to put all the male relatives of the guilty party to death. The prostitution of the practice is complete where, as among the Bushmen described by Reade, in his "Savage Africa," the stain of an injury suffered may be washed out by spilling the blood of any innocent third person, in case the guilty party is unknown or inaccessible. Superstition has occasionally operated as an additional irritant to an insane revenge. Schoolcraft relates that among some of the Dakota tribes of Indians each clan supposed the others to have supernatural powers whereby they could cause death. They hence frequently retaliated for deaths which they imagined to have been thus occasioned, though they were really due to natural causes.
From such diversities of view concerning the right of retaliation, and the justice of its application in particular instances, there inevitably ensued high carnivals of bloodshed and embroilment. While differing widely in degree among different races, the social disorder thus occasioned everywhere stood out in conspicuous contrast with that dearth of ordinary criminal acts which is characteristic of nearly all uncivilized tribes. Apart from the violence proceeding from blood feuds, the unfrequency among such tribes of most of the acts we consider criminal is very noteworthy. The great mass of offenses, whether against person or property, which disgrace and disfigure civilization, are the product of evil passions engendered by the exasperating inequalities of condition which are unknown to the experience of uncivilized races. Of the instances of general and extreme addiction to crime which are occasionally found in the lower tribes of mankind, a few, perhaps, must be classed as exceptions to this rule, but most of them are to be explained by the fact that the races so characterized are not really primitive, but are suffering, probably in an aggravated form, from the vices of a civilization which they formerly enjoyed, or with which they have at some time come in contact.
The inducements to crime in a primitive community are too weak and public opinion is too strong to admit of the rapid growth of criminal practices. Offenses against property necessarily partake of the scantiness of property itself. If, however, through the prevalence of an especially quarrelsome disposition in any tribe, altercations and murders increase in numbers, the far greater calamities of retaliation are aggravated in the same proportion, and, where one life is taken in original altercation, whole families and generations are consumed in retaliatory feuds.
Hence, wherever we catch glimpses of societies before they have commenced to administer a general criminal justice, we find them already busy in devising expedients for the amelioration of feuds. Tacitus, in enumerating the affairs of state transacted at the great feasts of the Germans, mentions first in the order of business "the reconcilement of enemies."
The large place occupied by blood-feuds in ancient Semitic societies and the dark shadow which they cast over social life have been vividly portrayed by Michaelis in his work on the Mosaic laws. The notoriously blightful prevalence of such feuds among the American Indians is such as to prepare us for Schoolcraft's account of a tribe to the south of Lake Superior, which he found almost extinct through intestine feuds. Indeed, such instances are by no means uncommon. A passage in which Mr. Bellew describes the condition of the feud ridden Berdurani, or northeastern Afghan tribes, so forcibly illustrates the demoralization ensuing from feuds as to justify its quotation at length: "Indeed," he says, "the quarrelsome character of this people and the constant strife that they lead are declared by a mere glance at their villages and fields, which bristle in all directions with round towers. These are constantly occupied by men at enmity with their neighbors in the same or adjoining villages, who, perched up in their little shooting-boxes, watch the opportunity of putting a bullet into each other's body with the most persevering patience. The fields, even, are studded with these round towers, and the men holding them most jealously guard their lands from any one with whom they are at feud. Nothing belonging to their enemies is safe from their vengeance. If even a fowl strays from its owner into the grounds of another, it is sure to receive a bullet from the adversary's tower. So constant are their feuds that it is a well-known fact that the village children are taught never to walk in the center of the road, but always from force of early habit walk stealthily along under cover of the wall nearest to any tower." These, it must be conceded, are extreme cases; yet they are a perfectly logical outgrowth of unaided and unhampered private retaliation. If most nations have outgrown the system without suffering so extreme wretchedness from its prevalence among them, it is to be ascribed to the promptness and ingenuity with which they have applied themselves to its modification. Instead of being, as has been considered, a necessary though rude expedient of primitive communities for the suppression of crime, it was from the beginning and under all circumstances preeminent in its fruitfulness of violence and disorder. It is more than doubtful whether it was either conceived or maintained with a view to the discouragement of crime. It had its origin in natural feelings of resentment, and afterward became a matter of honor. But, though vicious in its operation, the system had become so deeply rooted in the habits, the passions, the pride, the sense of honor, and the almost religious convictions of mankind, as to be among the most obstinate of institutions. Thus, among the Israelites, even after the Mosaic dispensation, the avenger was by public opinion so obligated to retaliation that in the words of Michaelis "the neglect thereof drew after it the greatest possible infamy, and subjected the man who avenged not the death of his relative to unceasing reproaches of cowardice or avarice." Among the Arabs, in the language of the same author, the avengement of blood constitutes "the prevailing point of honor among the whole nation"; and the acceptance of pecuniary compensation is, notwithstanding its recommendation by the Koran, considered vulgar. Writing of the Swedes, Geiger says—and his words apply with equal force to nearly all the early German nations—"Revenge for blood was a sacred obligation. It was at once the dearest heritage and the condition of every other, for in the olden time, if the father lay slain, the son could not inherit until he had avenged him." The old Salic laws likewise so linked the feuds of the family with its inheritances that a renunciation of the one worked an incapacity for the other. The loss of reputation which among the American Indians and other existing barbarians is universally incurred by failure to avenge blood is a matter of general notoriety. The difficulty experienced in some modern States in suppressing the duel is a faint illustration of the incorrigibility of blood-avengement; it being borne in mind that the modern code of honor is the conventionality of one class of society, while the old principle of retaliation rested on a universal passion and inflamed all classes alike, and that, while the modern duelist can forego his personal remedies, assured of the advantage of a matured system of law, the avenger was obliged to choose between his vengeance and a pecuniary composition, with the third alternative, in some instances, of a crude and inefficient judicial proceeding.
When King Alfred, outstripping the age in which he lived, and probably inspired by the example of Moses, denounced against willful murderers the punishment of death, his law was a dead-letter, and remained unexecuted during his own reign and those of several of his successors. The people preferred to redress their own grievances. Even long after pecuniary compositions for felonies had been abandoned, the laws of England continuing to provide two concurrent methods of prosecution for murder, one by indictment in the name of the king, and the other by appeal of felony at the suit of the kindred of the deceased, the latter was so confessedly the more favored remedy that, lest it might be barred by an acquittal under an indictment, no indictment was tried until after the expiration of the year and a day within which an appeal of felony might be instituted. This remained the practice until third Henry VII., when, in order to avoid these delays, it was enacted that acquittal on trial of an indictment should be no bar to an appeal of felony for the same offense. In the legislation of some countries, the conflict with reference to blood-avengement between the dictates of public policy on the one hand and the prevalent passions and notions of honor on the other was productive of a laughable incongruity. The law of Gottland, while making express provision for the appearance of the wrong-doer in court under safeguard, in order that he might offer the prosecutor a price in atonement of his offense, at the same time declared the prosecutor who accepted it at the first offer, even after the expiration of a year, to be a shameless person.
The tenacity with which the avenger adhered to his right of redress and the difficulty of controlling him in the exercise of this right are further attested by the character of the expedients by which it was sought to fortify measures aiming at his restraint. Thus Moses, though the Israelites were in his day quite familiar with the public prosecution of crimes, some of which were entirely withdrawn from the domain of private retaliation, found it still necessary to recognize the blood-avenger's right personally to pursue and slay without form of law the willful murderer: "The avenger of the blood shall slay the murderer; when he meeteth him he shall slay him."
But, as under most primitive codes of honor, so among the early Israelites the principle of blood-avengement was so malignant as to require retaliation even against the involuntary man-slayer. The instrument of death, whether man or beast, the avenger was in honor equally bound to destroy, without reference to the malicious or accidental character of the homicidal act. The flagrant injustice of punishing with death involuntary acts void of moral guilt, was in the Mosaic age, probably as manifest to large numbers of the Israelites as to Moses himself; yet so deeply rooted was the practice in the traditions of the people that the great law-giver dismissed as impracticable the idea of abolishing it. His scheme for ameliorating the hardships of both the willful murderer and the involuntary homicide by the designation of cities of refuge within the limits or vicinity of which they could find protection from the avenger, the former until he should have opportunity to prove his innocence, and the latter until the occurrence of some event with which his final discharge from liability could be plausibly linked, bears witness upon its face to the difficulty he anticipated in its enforcement. That his plan might be fortified by religious reverence and sacred associations, he provided for the selection of the cities of refuge from among the cities of the Levites, and dated the freedom of the excusable homicide from the death of the high priest. It is likely that among all early races the right of sanctuary has derived its strength from the considerations lying at the root of these Mosaic regulations. For although the absolute exclusion of violence from sacred precincts may have been originally suggested by religious sentiment, the widespread and tenacious application of the principle to criminal refugees must be mainly ascribed to the necessity so widely experienced of interposing obstacles to the avenger of blood; as is perhaps indicated by the circumstance that, as the exercise of avengement has been superseded by public prosecutions, the right of sanctuary has almost uniformly fallen into disrepute. Analogous in origin and aim to the right of sanctuary are the customs quite various and widely prevailing by which avengement has been prohibited during certain sacred seasons or occasions. Among the Swedes, for example, the Church contributed, as described by Geijer, to the abolition of blood-feuds by declaring all holidays and periods of some length at the great festivals consecrated to peace; and, ultimately, by throwing a similar protection over the sowing and harvest times. The Frisian was not to be molested by the avenger while going to or returning from church. There are some tribes of American Indians with whom all crimes except murder are buried in oblivion by the yearly sacrifice; so that the mention of them, or of any occurrence which brings them into recollection, is forbidden. If a Kenisteno chief wishes to settle any difference between his people, he announces his intention of opening his medicine-bag and smoking in his "sacred stem"; and no man who entertains a grudge against any of the party there assembled can smoke with the sacred stem.
The tenacity with which men clung to their right of personal retaliation can not be too strongly emphasized. When, by the demoralizing prevalence of feuds, society was first awakened to the necessity for taking measures to mitigate or suppress them, it is undoubtedly true that even if there had been a general willingness to abandon private revenge in favor of public prosecutions, the men of that period were incapable of either conceiving or executing so comprehensive a remedial scheme.
On the contrary, without any thought of the ultimate displacement of their revenge, they sought by various devices only to mitigate its excesses. But that displacement was made doubly difficult and the movement by which it was accomplished was in its details controlled by the stubbornness with which, even after comprehending the possibility of the new system, the people insisted upon adhering to their rights under the old. If further evidence or illustration of these truths is desired, it can be abundantly gathered from the sketch which it is now proposed to give of some of the steps by which societies, in their efforts to control the avenger and regulate avengement, were slowly and at first unconsciously led toward the cardinal doctrine of criminal jurisprudence, that it is the function of government to protect by suitable penalties its citizens in person and property from the violence and fraud of one another. "In order that revenge might not continually generate new revenge," says the historian of the Swedes, "the law essayed its earliest exercise of authority in reconcilement." At a time when murder was a purely private wrong, of which government took no cognizance, and the right of retaliation was thought too sacred for government to deny, the public interested itself only by discouraging revenge through the agency of public opinion, and by inviting and recommending pecuniary compositions with wrong-doers at rates which were usually fixed by law or custom, without, however, assuming to coerce either party into a settlement. Under such circumstances, if the avenger accepted the sum fixed by law as the price of composition, and afterward also took his revenge, this, as Montesquieu says, referring to the law of the Lombards, contained a public as well as a private offense; was a contempt of the law itself—a crime which the legislators never failed to punish. Later, the law, in order to avert feuds, declared it a crime to refuse to offer or accept pecuniary composition for murder. Government, while it had not yet undertaken to prevent or punish ordinary murders or larcenies, had been driven to apply itself to the suppression of feuds; and the withholding or rejection of composition money tending to defeat its efficient discharge of that function had the properties of a true crime, and was promptly recognized and punished as such. That pecuniary compositions for bloodshed were everywhere first made obligatory, rather to avert feuds than to punish wrong-doers, is attested by a great variety of circumstances. For instance, in fixing the amount to be paid in composition, the chief and usually the sole question or criterion seems to have been, What sum will offer to the avenger a sufficient inducement to forego his revenge? Rotharis, in the law of the Lombards, declares that he had increased the compositions anciently accustomed for wounds, to the end that, the wounded person being satisfied, all enmities should cease. Upon the same principle is to be explained the well-known tendency of early laws to adjust their penalties with principal regard to the aggrieved person's probable degree of exasperation at the time of detecting the wrong-doer.
The law of the Allemans, which, while undertaking to enforce compositions for stale offenses, conceded to injured parties the privilege of righting themselves on the spot and in the first transport of passion, finds a counterpart in the curious and yet under the circumstances perfectly natural distinction made in the Twelve Tables between manifest and non-manifest theft. Persons detected in the act of stealing, or with the booty in their possession, wore liable to the punishment of death if slaves, and, if freemen, became thereby the bondmen of the owner of the property; while, if detected under other circumstances, they were only obligated to refund double the value of the stolen property. The marked incongruity, from a modern standpoint, of these two punishments was supposed by Montesquieu to have originated in Lacedæmonian theories of theft, and to have been handed down from ages when the crime of stealing was a small matter compared with the blunder of being found out. In other words, that the real crime consisted in being detected, and that hence, the longer detection was postponed and the more effectually the booty was disposed of or concealed, the lighter was the penalty imposed. Whatever may be said of the accuracy of this explanation, its ingenuity can not be denied.
On the other hand, Sir Henry Maine traces the widely discrepant penalties under consideration to a tendency, on the part of early administrators of justice, to "simulate" the probable acts of persons engaged in a private quarrel. "It is curious to observe," he says, "how completely the men of primitive times were persuaded that the impulses of the injured person were the proper measure of the vengeance he was entitled to exact, and how literally they imitated the probable rise and fall of his passions in fixing the scale of punishment."
Viewing these provisions of the Roman code in connection with other primitive laws, there can be no doubt that their scale of penalties was graduated, not with reference to the vengeance the injured party should be "entitled to exact," but with reference to the least amount of punishment by which, under given circumstances, he could probably be appeased. Pecuniary compositions for bloodshed, prevailing, as they presumably have, at some period in the history of every race, can not indeed be accounted for on any theory of punishment. They were conceived and established for purposes of pacification, apart from considerations of punishment or discipline. Blood for blood is an instinct of human nature; it is the justice which among every race was meted out with unsparing hand by the kindred of the slain when the burden and privilege of redress were upon them, and again by the state when she assumed the punishment of crimes. Pecuniary compositions prevailed only in the enforced absence of truly primitive remedies during that transition period when government was too wise to countenance the avenger, and not wise enough, or too feeble, to administer penal justice. It must be admitted that compulsory compositions, after they had superseded the practice of retaliation, came ultimately to be maintained with a view largely to the punishment and prevention of wrong-doing, and by a kind of inertia were carried over into periods capable of sustaining a true criminal law and already in the partial enjoyment of it. Even then, however, they proceeded upon our theory of damages against tort feasors. They were never at any time entitled to a place in the law of crimes. Returning from our digression, it is to be remarked that the adoption by the state of regulations for the control of parties at feud necessitated public prosecutions and punishments in order to insure their observance. One of the earliest methods of mitigating feuds was to allow the relatives of the wrong-doer to withdraw themselves from his feud on condition that they should entirely abandon him. If, after taking advantage of this law, they gave the wrong-doer assistance, they not only forfeited the protection which the law guaranteed them, and so were involved in the feud, but they so obviously sinned against the dignity of the state and its law that they were finable to the king. Such was the law of King Edmund of England. So, if, after the law had guaranteed the relatives of the culprit immunity from the feud in consideration of their abandonment of him, the injured party still took revenge on them, all his property was forfeited, and he was declared to be an enemy to the king and all his friends. In like manner, government in some instances undertook to give legal force to customs, many of which occur among our Indian tribes, which sought to discourage feuds by limiting the time within which revenge could be taken, or to restrictions upon the mode or measure of redress suggested by considerations of humanity. Although Mohammed, in the Koran, adheres to the law of personal retaliation for bloodshed, he counsels forgiveness or composition on the part of the aggrieved persons. But, against the person who, after receiving composition money as contemplated by his law, still proceeds to take his revenge, he denounces a "grievous punishment." The process of enforcing these and other limitations upon parties at feud resulted in developing and illustrating the idea of regulating by criminal laws the conduct of citizens toward one another, and thereby paved the way for the subsequent more general application of the same principle. There was another class of measures which tended to the same end by serving especially to mature a judicial machinery, and to familiarize the people with its operation. Next to its total abolition, the most effective remedy for the evils of blood-avengement was to forbid its exercise until the accused person should have had an opportunity to submit the question of his guilt to investigation in court. Under such circumstances a court was not a bar of justice at which accused persons were arraigned, but a place of refuge to which they fled. The Israelites had under the Mosaic laws in one respect passed this stage of development, since the public had undertaken to execute judgment against offenders when the avenger so desired. Yet an accused person only became entitled to a hearing in court after reaching a city of refuge, up to which time the avenger was at liberty to take his own redress without legal intervention. Having arrived at the city of refuge, the fugitive was entitled to have the question of his guilt investigated. If found guilty, he was either delivered into the hands of the avenger, or at the option of the latter was publicly executed, the prosecuting witnesses casting the first stones. That among the Germans, also, the first entertainment by courts of criminal charges was in the interest of the accused, is, as already remarked, settled beyond controversy by Montesquieu. Additional and curious illustration of the fact is afforded by the Swedish law, which not only threw the protection of the court around the accused while he negotiated with the adverse party for composition, but in case of the rejection of his reasonable overtures restored him to liberty with the right to carry full arms, and to defend himself against his enemies as well as he could. The custom very widely prevailing, by which a party found guilty of crime is delivered by the court to the prosecutor, to be executed or otherwise disposed of at his pleasure, is obviously an outgrowth and incident of the original protective function of courts, and wherever found is indicative of the former prevalence of that kind of judicial interference. This may be said to be the universal method of execution among such of the barbarous tribes as have attained to any judicial investigations at all. The same is generally true of Mohammedan countries.
Even in England, until as late as Henry IV., it was the custom in appeals of felony for the appellor and his kindred to drag the convicted appellee to the place of execution.
For the time employed in the trial, and the protection afforded by it, a reasonable compensation, called Fredum by the Germans, was usually paid by the accused to the judge or king. Under the Koran this debt of gratitude took a peculiar form. In order to compound for murder it was necessary not only to satisfy the family of the deceased, but also to ransom a brother Moslem from captivity. It is not difficult to understand how impositions of this sort, exacted at first for time consumed and protection afforded by the state for the accused, might readily adapt themselves to and even assist in the development of criminal law, by gradually assuming the character of fines for the offenses charged. Another line of progress of importance in some societies consisted in a gradual enlargement of the classes of offenses in which the king or state was supposed to have such an immediate interest as to justify a claim to a part of the composition money. Thus an injury to the person or property of any of the king's household, retainers, officers, or agents, was early construed to be an injury to himself. So, likewise, with wrongs committed against the guests of the king or persons of a household by whom he was entertained; or violence committed in the immediate presence of the king or in his castle, and afterward in the city or province where he was residing; or under other circumstances which, within the slowly expanding ideas on the subject, could be construed as involving an offense against the king's peace or dignity. It is an observation of M. Say that, in every branch of knowledge, example has preceded precept. So it was in the early history of criminal law. To a very great extent it was practiced before its theory was conceived or its first principle formulated. It was only after its judicial machinery had been developed by such random or diverse considerations, and for such special purposes as those heretofore enumerated, and after the people were thereby familiarized with its employment in favor of or against many classes of wrong-doers, that the practicability and propriety of its application to offenders generally were first perceived.