Without an exception, they describe an immense system of moneycompensations for homicide, and with few exceptions, as large ascheme of compensations for minor injuries. "Under Anglo-Saxonlaw," writes Mr. Kemble (Anglo-Saxons, i. 177), "a sum was placedon the life of every free man, according to his rank, and acorresponding sum on every wound that could be inflicted on hisperson, for nearly every injury that could be done to his civilrights, honour or peace; the sum being aggravated according toadventitious circumstances." These compositions are evidentlyregarded as a valuable source of income; highly complex rulesregulate the title to them and the responsibility for them; and,as I have already had occasion to state, they often follow a verypeculiar line of devolution, if they have not been acquitted atthe decease of the person to whom they belong. If therefore thecriterion of a delict, wrong, or tort be that the person whosuffers it, and not the State, is conceived to be wronged, it maybe asserted that in the infancy of jurisprudence the citizendepends for protection against violence or fraud not on the Lawof Crime but on the Law of Tort.
Torts then are copiously enlarged upon in primitivejurisprudence. It must be added that Sins are known to it also.
Of the Teutonic codes it is almost unnecessary to make thisassertion, because those codes, in the form in which we havereceived them,were compiled or recast by Christian legislators.
But it is also true that non-Christian bodies of archaic lawentail penal consequences on certain classes of acts and oncertain classes of omissions, as being violations of divineprescriptions and commands. The law administered at Athens by theSenate of Areopagus was probably a special religious code, and atRome, apparently from a very early period, the Pontificaljurisprudence punished adultery, sacrilege and perhaps murder.
There were therefore in the Athenian and in the Roman States lawspunishing sins. There were also laws punishing torts. Theconception of offence against God produced the first class ofordinances; the conception of offence against one's neighbourproduced the second; but the idea of offence against the State oraggregate community did not at first produce a true criminaljurisprudence.
Yet it is not to be supposed that a conception so simple andelementary as that of wrong done to the State was wanting in anyprimitive society. It seems rather that the very distinctnesswith which this conception is realised is the true cause which atfirst prevents the growth of a criminal law At all events, whenthe Roman community conceived itself to be injured, the analogyof a personal wrong received was carried out to its consequenceswith absolute literalness, and the State avenged itself by asingle act on the individual wrong-doer. The result was that, inthe infancy of the commonwealth, every offence vitally touchingits security or its interests was punished by a separateenactment of the legislature. And this is the earliest conceptionof a crimen or Crime -- an act involving such high issues thatthe State, instead of leaving its cognisance to the civiltribunal or the religious court, directed a special law orprivilegium against the perpetrator. Every indictment thereforetook the form of a bill of pains and penalties, and the trial ofa criminal was a proceeding wholly extraordinary, whollyirregular, wholly independent of settled rules and fixedconditions. Consequently, both for the reason that the tribunaldispensing justice was the sovereign state itself and also forthe reason that no classification of the acts prescribed orforbidden was possible, there was not at this epoch any Law ofcrimes, any criminal jurisprudence. The procedure was identicalwith the forms of passing an ordinary statute; it was set inmotion by the same persons and conducted with precisely the samesolemnities. And it is to be observed that, when a regularcriminal law with an apparatus of Courts and officers for itsadministration had afterwards come into being, the old procedure,as might be supposed from its conformity with theory, still instrictness remained practicable; and, much as resort to such anexpedient was discredited, the people of Rome always retained thepower of punishing by a special law offences against its majesty.
The classical scholar does not require to be reminded that inexactly the same manner the Athenian Bill of Pains and Penalties,or, survived the establishment of regular tribunals. It is knowntoo that when the freemen of the Teutonic races assembled forlegislation, they also claimed authority to punish offences ofpeculiar blackness or perpetrated by criminals of exaltedstation. Of this nature was the criminal jurisdiction of theAnglo-Saxon Witenagemot.
It may be thought that the difference which I have assertedto exist between the ancient and modern view of penal law hasonly a verbal existence. The community it may be said, besidesinterposing to punish crimes legislatively, has from the earliesttimes interfered by its tribunals to compel the wrong doer tocompound for his wrong, and, if it does this, it must always havesupposed that in some way it was injured through his offence.
But, however rigorous this inference may seem to us now-a-days,it is very doubtful whether it was actually drawn by the men ofprimitive antiquity. How little the notion of injury to thecommunity had to do with the earliest interferences of the Statethrough its tribunals, is shown by the curious circumstances thatin the original administration of justice, the proceedings were aclose imitation of the series of acts which were likely to begone through in private life by persons who were disputing, butwho afterwards suffered their quarrel to be appeased. Themagistrate carefully simulated the demeanour of a privatearbitrator casually called in.
