The Early History of Delict and Crime
The Teutonic Codes, including those of our Anglo-Saxonancestors, are the only bodies of archaic secular law which havecome down to us in such a state that we can form an exact notionof their original dimensions. Although the extant fragments ofRoman and Hellenic codes suffice to prove to us their generalcharacter, there does not remain enough of them for us to bequite sure of their precise magnitude or of the proportion oftheir parts to each other. But still on the whole all the knowncollections of ancient law are characterised by a feature whichbroadly distinguishes them from systems of mature jurisprudence.
The proportion of criminal to civil law is exceedingly different.
In the German codes, the civil part of the law has triflingdimensions as compared with the criminal. The traditions whichspeak of the sanguinary penalties inflicted by the code of Dracoseem to indicate that it had the same characteristic. In theTwelve Tables alone, produced by a society of greater legalgenius and at first of gentler manners, the civil law hassomething like its modern precedence; but the relative amount ofspace given to the modes of redressing wrong, though notenormous, appears to have been large. It may be laid down, Ithink, that the more archaic the code, the fuller and the minuteris its penal legislation. The phenomenon has often been observed,and has been explained, no doubt to a great extent correctly, bythe Violence habitual to the communities which for the first timereduced their laws to writing. The legislator, it is said,proportioned the divisions of his work to the frequency of acertain class of incidents in barbarian life. I imagine, however,that this account is not quite complete. It should be recollectedthat the comparative barrenness of civil law in archaiccollections is consistent with those other characteristics ofancient jurisprudence which have been discussed in this treatise.
Nine-tenths of the civil part of the law practised by civilisedsocieties are made up of the Law of Persons, of the Law ofProperty and of inheritance, and of the Law of Contract. But itis plain that all these provinces of jurisprudence must shrinkwithin narrower boundaries, the nearer we make our approaches tothe infancy of social brotherhood. The Law of Persons, which isnothing else than the Law of Status, will be restricted to thescantiest limits as long as all forms of Status are merged incommon subjection to Paternal Power, as long as the Wife has norights against her Husband, the Son none against his Father; andthe infant Ward none against the Agnates who are his Guardians.
Similarly, the rules relating to Property and Succession cannever be plentiful, so long as land and goods devolve within thefamily, and, if distributed at all, are distributed inside itscircle. But the greatest gap in ancient civil law will always becaused by the absence of Contract, which some archaic codes donot mention at all, while others significantly attest theimmaturity of the moral notions on which Contract depends bysupplying its place with an elaborate jurisprudence of Oaths.
There are no corresponding reasons for the poverty of penal law,and accordingly, even if it be hazardous to pronounce that thechildhood of nations is always a period of ungoverned violence,we shall still be able to understand why the modem relation ofcriminal law to civil should be inverted in ancient. codes.
I have spoken of primitive jurisprudence as giving tocriminal law a priority unknown in a later age. The expressionhas been used for convenience' sake, but in fact the inspectionof ancient codes shows that the law which they exhibit in unusualquantities is not true criminal law. All civilised systems agreein drawing a distinction between offences against the State orCommunity and offences against the Individual, and the twoclasses of injuries, thus kept apart, I may here, withoutpretending that the terms have always been employed consistentlyin jurisprudence, call Crimes and Wrongs, crimina and delicta.
Now the penal law of ancient communities is not the law ofCrimes; it is the law of Wrongs, or, to use the English technicalword, of Torts. The person injured proceeds against thewrong-doer by an ordinary civil action, and recovers compensationin the shape of money-damages if he succeeds. If the Commentariesof Gaius be opened at the place where the writer treats of thepenal jurisprudence founded on the Twelve Tables, it will be seenthat at the head of the civil wrongs recognised by the Roman lawstood Furtum or Theft. Offences which we are accustomed to regardexclusively as crimes are exclusively treated as torts, and nottheft only, but assault and violent robbery, are associated bythe jurisconsult with trespass, libel and slander. All alike gaverise to an Obligation or vinculum juris, and were all requited bya payment of money. This peculiarity, however, is most stronglybrought out in the consolidated Laws of the Germanic tribes.
