Читать книгу Historical Law-Tracts - Henry Home Lord Kames - Страница 14
Оглавление[print edition page 8]
Of the human system no part, external or internal, is more remarkable than a class of principles, intended obviously to promote society, by restraining men from harming each other. These principles, as the source of the criminal law, must be attentively examined: and to form a just notion of them, we need but reflect on what we feel when we commit a crime, or witness it.1 Upon certain actions, hurtful to others, the stamp of impropriety and wrong is impressed in legible characters, visible to all, not excepting even the delinquent. Passing from the action to its author, we perceive that he is guilty; and we also perceive, that he ought to be punished for his guilt. He himself, having the same perception, is filled with remorse; and, which <2> is extremely remarkable, his remorse is accompanied with an anxious dread that the punishment will be inflicted, unless it be prevented by his making reparation or atonement. Thus in the breast of a man a tribunal is erected for conscience: sentence passeth against him for every delinquency; and he is delivered over to the hand of Providence, to be punished in proportion to his guilt. The wisdom of this contrivance is conspicuous. Asense of wrong is of itself not sufficient to restrain the excesses of passion: but the dread of punishment, which is felt even where there is no visible hand to punish, is a natural restraint so efficacious, that none more perfect can be imagined.* This dread, when the result of atrocious or unnatural crimes, is itself a tremendous punishment, far exceeding all that have been invented
[print edition page 9]
by men. Happy it is for society, that instances are rare, of crimes so gross as to produce this natural dread in its higher degrees: it is, however, still more rare, to find any person so singularly virtuous, as never to have been conscious of it in any degree. When we peruse the history of mankind, even in their most savage state, we discover it to be universal. One instance I must mention, because it relates to the Hottentots, of all men <3> the most brutish. They adore a certain insect as their deity; the arrival of which in a kraal, is supposed to bring grace and prosperity to the inhabitants; and it is an article in their creed, that all the offences of which they had been guilty to that moment, are buried in oblivion, and all their iniquities pardoned.* The dread that accompanies guilt, till punishment be inflicted or forgiven, must undoubtedly be universal, when it makes a figure even among the Hottentots.
For every wrong, reason and experience make us apprehend the resentment of the person injured: but the horror of mind that accompanies every gross crime, produceth in the criminal an impression that all nature is in arms against him. Conscious of meriting the highest punishment, he dreads it from the hand of God, and from the hand of man:
And Cain said unto the Lord, My punishment is greater than I can bear. Behold, thou hast driven me out this day from the face of the earth: and from thy face shall I be hid, and I shall be a fugitive and a vagabond in the earth, and it shall come to pass, that every one that findeth me shall slay me.†
Hence the efficacy of human <4> punishments in particular, to which man is adapted with wonderful foresight, through the consciousness of their being justly inflicted, not only by the person injured, but by the magistrate or by any one. Abstracting from this consciousness, the most frequent instances of chastising criminals would readily be misapprehended for so many acts of violence and oppression, the effects of malice even in judges; and much more so in the party offended, where the punishment is inflicted by him.
[print edition page 10]
The purposes of Nature are never left imperfect. Corresponding to the dread of punishment, is, first, the indignation we have at gross crimes, even when we suffer not by them; and next, resentment in the person injured, even for the slightest crimes: by these, ample provision is made for inflicting the punishment that is dreaded. No passion is more keen or fierce than resentment; which, when confined within due bounds, is authorised by conscience. The delinquent is sensible, that he may be justly punished; and if any person, preferably to others, be entitled to inflict the punishment, it must be the person injured.2
Revenge, therefore, when provoked by injury or voluntary wrong, is a privilege that belongs to every person by the law of Nature; for we have no criterion of right or wrong more illustrious than the approbation or dis-approbation of <5> conscience. And thus, the first law of Nature regarding society, that of abstaining from injuring others, is enforced by the most efficacious sanctions.
An author of the first rank for genius, as well as blood, expresses himself with great propriety on this subject:
There is another passion very different from that of fear, and which, in a certain degree, is equally preservative to us, and conducing to our safety. As that is serviceable in prompting us to shun danger, so is this in fortifying us against it, and enabling us to repel injury, and resist violence when offered. ’Tis by this passion that one creature offering violence to another, is deterred from the execution, whilst he observes how the attempt affects his fellow, and knows by the very signs which accompany this rising motion, that if the injury be carried further, it will not pass easily, or with impunity. ’Tis this passion withal, which, after violence and hostility executed, rouses a creature in opposition, and assists him in returning like hostility and harm on the invader. For thus as rage and despair increase, a creature grows still more terrible; and, being urged to the greatest extremity, finds a degree of strength and boldness unexperienced
[print edition page 11]
till then, and which had never risen except through the height of provocation.* <6>
But a cursory view of this passion is not sufficient. It will be seen by and by, that the criminal law in all nations is entirely founded upon it; and for that reason it ought to be examined with the utmost accuracy. Resentment is raised in different degrees, according to the sense one hath of the injury. An injury done to a man himself, provokes resentment in its highest degree. An injury of the same kind done to a friend or relation, raises resentment in a lower degree; and the passion becomes gradually fainter, in proportion to the slightness of the connection. This difference is not the result of any peculiarity in the nature of the passion: it is occasioned by what is inherent in all sensible beings, that every one has the strongest sense of what touches itself. Thus a man hath a more lively sense of a kindness done to himself, than to his friend; and the passion of gratitude is in proportion. In the same manner, an injury done to myself, to my child, to my friend, makes agreater figure in my mind, than when done to others in whom I am less interested.
Every heinous transgression of the law of Nature raiseth indignation in all, and a keen desire to have the criminal brought to condign punishment. Slighter transgressions are less regarded. A slight injury done to a stranger, with whom we have no connection, raiseth our indignation, it is true, but so faintly as not to prompt any <7> revenge. The passion in this case, being quiescent, vanisheth in a moment. But a man’s resentment for an injury done to himself, or to one with whom he is connected, is an active passion, which is gratified by punishing the delinquent, in a measure corresponding to the injury. And many circumstances must concur before the passion be completely gratified. It is not completely gratified with the suffering of the criminal: The person injured must inflict the punishment, or at least direct it; and the criminal must be made sensible, not only that he is punished for his crime, but that the punishment proceeds from the person injured. When all these circumstances concur, and not otherwise, the passion is completely gratified; and commonly vanisheth as if it had never been. Racine
[print edition page 12]
understood the nature of this passion, and paints it with great accuracy in the following scene.
CLEONE.
Vous vous perdez, Madame. Et vous devez songer—
HERMIONE.
Que je me perde, ou non, je songe à me venger.
Je ne sai même encor, quoi qu’il m’ait pu promettre,
Sur d’autres que sur moi, si je dois m’en remettre.
Pyrrhus n’est pas coupable à ses yeux comme aux miens,
Et je tiendrois mes coups bien plus sûrs que les siens. <8>
Quel plaisir, de venger moi-même mon injure;
De retirer mon bras teint du sang du parjure;
Et pour rendre sa peine et mes plaisirs plus grands,
De cacher ma rivale à ses regards mourans!
Ah! si du-moins Oreste, en punissant son crime,
Lui laissoit le regret de mourir ma victime!
Va le trouver. Dis-lui qu’il aprenne à l’ingrat,
Qu’on l’immole à ma haine, et non pas à l’état.
Chére Cléone, cours. Ma vengeance est perdue,
S’il ignore, en mourant, que c’est moi qui le tue.
ANDROMAQUE, act. 4. sc. 4.3
[print edition page 13]
Injury, or voluntary wrong, is commonly the cause of resentment; we are taught, however, by experience, that sudden pain is sufficient sometimes to raise this passion, even where injury is not intended. If a man wound me by accident in a tender part, the sudden anguish, giving no time for reflection, provokes resentment, which is as suddenly exerted upon the involuntary cause. Treading upon a gouty toe, or breaking a favourite vase, may upon a warm temper produce this effect. The mind engrossed by bodily pain, or any pain which raises bad humour, demands an object for its resentment; and what object so ready as the person who was the occasion of the pain? that it was undesigned is never thought of. In the same manner even a stock or a stone becomes sometimes the object of resentment. Striking my foot by accident against a stone, a smart pain en-<9>sues: Resentment, suddenly enflamed, prompts me to bray the stone to pieces. The passion is still more irregular in a losing gamester, when he vents it on the cards and dice. All that can be said as an apology for such absurd fits of passion, is, that they are but momentary, and vanish upon the first reflection. And yet such indulgence was by the Athenians given to this irrational emotion, that if a man was killed by the fall of a stone, or other accident, the instrument of death was destroyed.* (1) Resentment raised <10> by
[print edition page 14]
voluntary wrong, which is a rational and useful passion, is in a very different condition. It subsists till the sense of the injury be done away, by punishment, atonement, or length of time.
But all the irregularities of this passion are not yet exhausted. It is still more savage and irrational, when, without distinguishing the innocent from the guilty, it is exerted against the relations of the criminal, and even against the brute creatures that belong to him. Such barbarity <11> will scarce find credit with those who have no knowledge of man but what is discovered by experience in a civilized society; and yet, in the history and laws of ancient nations, we find this savage practice, not only indulged without redress, but, what is still more astonishing, we find it authorised by positive laws. Thus, by an Athenian law, a man committing sacrilege, or betraying his country, was banished, with all his children;* and when a tyrant was killed, his children were also put to death.† By the law of Macedon(2), the punishment of treason was extended against the relations of the criminal.‡ By a Scythian law, when a criminal was punished with death,
[print edition page 15]
all his sons were put to death with him: His daughters only were saved from destruction.* In the laws of the Bavarians,† the use of women was forbidden to clergymen, “lest (as in the text) the people be destroyed for the crime of their pastor”: A very gross notion of divine punishment. And yet the Gre-<12>cians entertained the same notion; as appears from the Iliad, in the beginning:
Latona’s son a dire contagion spread,
And heap’d the camp with mountains of the dead,
The King of men his rev’rend priest defy’d,
And for the King’s offence the people died.4
Lucan, for a crime committed by the King, thought it not unjust to destroy all Egypt.‡ But it may appear still more surprising, that this savage and absurd practice continued very long in some parts of the Roman empire, though governed by laws remarkable for their equity. Of this the following statute of the Emperors Arcadius and Honorius|| is clear evidence.
Sancimus ibi esse poenam ubi et noxia est. Propinquos, notos, familiares, procul a calumnia submovemus, quos reos sceleris societas non facit. Nec enim adfinitas vel amicitia nefarium crimen admittunt. Peccata igitursuos teneant auctores: Nec ulterius progrediatur metus quam reperiatur delictum. Hoc singulis quibusque judicibus intimetur.5
At the same time, these very Emperors, however mild and rational with regard to others, talk a very different language upon a crime which affected
[print edition page 16]
themselves: After observing, that will and purpose alone, without any ouvert act, is treason, subjecting the guilty person to a capital punishment and forfeiture of <13> goods, they go on in the following words.
Filii vero ejus, quibus vitam Imperatoria specialiter lenitate concedimus, (paterno enim deberent perire supplicio, in quibus paterni, hoc est here-ditarii, criminis exempla metuuntur), a materna, vel avita, omnium etiam proximorum hereditate ac successione habeantur alieni: Testamentis extraneorum nihil capiant: Sint perpetuo egentes, et pauperes, infamia eos paterna semper comitetur, ad nullos prorsus honores, ad nulla sacramenta perveniant: Sint postremo tales, ut his, perpetua egestate fordentibus, sit et mors solatium, et vita supplicium.*6
Every one knows, that murder committed by a member of any tribe or clan, was resented, not only against the criminal and his relations, but against the whole tribe or clan: A species of resentment so common as to be distinguished by a peculiar name, that of deadly feud. So late as the days of King Edmond, a law was made in England, forbidding deadly feud, except betwixt the relations of the deceased and the murderer himself; and declaring, that these relations shall forfeit all their goods, if they prosecute with deadly feud the relations of the murderer. In Japan, to this day, it is the practice to involve children and relations in the punishment of capital crimes.† <14>
A tendency to excess, so destructive in the passion of resentment, is often in other passions the occasion of good. Joy, when excessive, as well as gratitude, are not confined to their proper objects, but expand themselves upon
[print edition page 17]
whatever is connected with these objects. In general, all our active passions, in their nascent state and when moderate, are accompanied with a sense of fitness and rectitude; but when excessive, they enflame the mind, and violently hurry it to action, without due distinction of objects.
And this leads to a reflection upon the irregular tendency of resentment here displayed. If it be the nature of all active passions, when immoderate, to expand themselves beyond their proper objects, which is remarkable in friendship, love, gratitude, and all the social passions, it ought not to be surprising, that resentment, hatred, envy, and other dissocial passions, should not be more regular. Among savages, this tendency may perhaps have a bad effect, by adding force to the malevolent passions: But in a civilized state, where dissocial passions are softened, if not subdued, this tendency is, upon the whole, extremely beneficial.
It is observed above, that revenge is a privilege bestowed by the law of Nature on those who suffer by a voluntary injury; and the correspondence hath also been observed betwixt this privilege and the sense of merited punishment, which <15> makes the criminal submit to the punishment he deserves. Thus by the law of Nature, the person injured acquires a right over the delinquent, to chastise and punish him in proportion to the injury; and the delinquent, sensible of the right, knows he ought to submit to it. Hence punishment is commonly said to be a sort of debt, which the criminal is bound to pay to the person he hath injured(3); and this way of speaking may safely be indulged as an analogical illustration, provided no consequence be drawn that the analogy will not justify. This caution is not unnecessary; for many writers, influenced by the foregoing semblance, reason about punishment unwarily, as if it were a debt in the strictest sense. By means of the same resemblance, a notion prevailed in the darker ages of the world, of a substitute in punishment, who undertakes the debt and suffers the punishment that another merits. Traces of this opinion are found in the religious ceremonies of the ancient Egyptians and other ancient nations. Among them the conceptions of a Deity were gross, and of morality no less so. We must not therefore be surprised at their notion of a transference
[print edition page 18]
of punishment, as of debt, from one person to another. They were imposed upon by the slight analogy above-mentioned; which reasoning taught <16> them not to correct, because reasoning at that time was in its infancy.7 The prevalence of this notion in the religious ceremonies of the ancient Egyptians, is vouched by Herodotus.* A bull is chosen pure white, for a sacrifice to their god Apis. The victim is brought to the altar, a fire kindled, wine poured out, and prayers pronounced. The bull is killed; and his head is thrown into the river, with the following execration: “May all the evils impending over those who perform this sacrifice, or over the Egyptians in general, be averted on this head.” Even in later times, when a Roman army was in hazard of a defeat, it was not uncommon for the general to devote himself to death, in order to obtain the victory.† Is not this practice founded upon the same notion? Let Lucan answer the question.
O utinam, coelique Deis, Erebique liberet
Hoc caput in cunctas damnatum exponere poenas!
Devotum hostiles Decium pressere catervae:
Me geminae figant acies, me barbara telis
Rheni turba petat: cunctis ego pervius hastis
Excipiam medius totius vulnera belli.
Hic redimat sanguis populos: hac caede luatur
Quicquid Romani meruerunt pendere mores.
L. 2. l. 306.8 <17>
And the following passage of Horace, seems to be founded on the same notion.
[print edition page 19]
At tu, nauta, vagae ne parce malignus arenae
Offibus et capiti inhumato
Particulam dare. Sic, quodcunque minabitur Eurus
Fluctibus Hesperiis, Venusinae
Plectantur sylvae, te sospite.
CARM. l. 1. ode 28.9
That one should undertake a debt for another, is a matter of consent, not repugnant to the rules of justice. But with respect to the administration of justice among men, no maxim has a more solid foundation or is more universal, than that punishment cannot be transferred from the guilty to the innocent. Punishment, considered as a gratification of the party offended, is purely personal; and, being inseparately connected with guilt, cannot admit of substitution. A man may consent, it is true, to suffer that pain which his friend the offender merits as a punishment; but the injured person is not satisfied with such transmutation of suffering: his resentment is not gratified but by retaliating upon the very person who did the injury. Yet, even in a matter obvious to reason, so liable are men to error when led astray by any bias, that to the foregoing notion concerning punishment, we may impute the most barbarous practice ever prevailed among savages, that of substituting human crea-<18>tures in punishment, and compelling them to undergo the most grievous torments, even death itself. I speak of human sacrifices, which are deservedly a lasting reproach upon mankind, being of all human institutions the most irrational, and the most subversive of humanity. To sacrifice a prisoner of war to an incensed deity, barbarous and inhuman as it is, may admit some excuse. But that a man should sacrifice his children as an atonement for his crimes, cannot be thought of without horror(4). Yet this savage impiety can rest upon no other foundation
[print edition page 20]
than the slight resemblance that punishment hath to a debt; which is a strong evidence of the influence of imagination upon our conduct. The vitious hath ever been solicitous to transfer upon others the punishment they themselves deserve; for nothing is so dear to a man as himself.
Wherewith shall I come before the Lord, and bow myself before the high God? <19> shall I come before him with burnt offerings, with calves of a year old? Will the Lord be pleased with thousands of rams, or with ten thousand rivers of oil? shall I give my first-born for my transgression, the fruit of my body for the sin of my soul?
But this is not an atonement in the sight of the Almighty.
He hath shewed thee, O man, what is good; and what doth the Lord require of thee, but to do justly, and to love mercy, and to walk humbly with thy God?*
I beg indulgence for a reflection that arises naturally from this branch of the subject; that the permitting vicarious punishment is subversive of humanity, and no less so of moral duty. Encourage a man to believe that without repentance or reformation of manners he can atone for his sins, and he will indulge in them for ever.10 Happy it is for mankind, that by the improvement of our rational faculties, the open profession of compounding for sin is banished from all civilized societies: And yet from the selfishness of human nature this doctrine continues privately to influence our conduct more than is willingly acknowledged, or even suspected. Many men give punctual attendance at public worship, to compound for hidden vices; many are openly charitable, to compound for private oppression; and many are willing to do God good service in <20> supporting his established
[print edition page 21]
church, to compound for aiming at power by a factious disturbance of the state. Such pernicious notions, proceeding from a wrong bias in our nature, cannot be eradicated after they have once got possession; nor be prevented, but by early culture, and by frequently inculcating the most important of all truths, That the Almighty admits of no composition for sin; and that his pardon is not to be obtained, without sincere repentance, and thorough reformation of manners.
Having discoursed in general of the nature of punishment, and of some irregular notions that have been entertained about it, I am now ready to attend its progress through the different stages of the social life. Society, originally, did not make a strict union among individuals. Mutual defence against a more powerful neighbour, being in early times the chief or sole motive for joining in society, individuals never thought of surrendering to the public, any of their natural rights that could be retained consistently with mutual defence. In particular, the privileges of maintaining their own property and of avenging their own wrongs, were reserved to individuals full and entire. In the dawn of society accordingly, we find no traces of a judge, properly so called, who hath power to interpose in differences, and to force persons at variance to submit to his opinion. If a dispute about property, or about <21> any civil right, could not be adjusted by the parties themselves, there was no other method, but to take the opinion of some indifferent person.11 This method of determining civil differences was imperfect; for what if the parties did not agree upon an arbiter? Or what if one of them proved refractory, after the chosen arbiter had given his opinion? To remedy these inconveniencies, it was found expedient to establish judges, who at first differed in one circumstance only from arbiters, that they could not be declined. They had no magisterial authority, not even that of compelling parties to appear before them. This is evident from the Roman law, which subsisted many centuries before the notion obtained of a power in a judge to force a party into court. To bring a disputable matter to an issue, no other means occurred, but the making it lawful for the complainer to drag his party before the judge obtorto collo, as expressed by the
[print edition page 22]
writers on that law: And the same regulation appears in the laws of the Visigoths.* But jurisdiction, at first merely voluntary, came gradually to be improved to its present state of being compulsory, involving so much of the magisterial authority as is necessary for explicating jurisdiction, viz. power of calling a party into court, and power of making a sentence effectual. And in this <22> manner, civil jurisdiction in progress of time was brought to perfection.
Criminal jurisdiction is in all countries of a much later date. Revenge, the darling privilege of undisciplined nature,12 is never tamely given up; for the reason chiefly, that it is not gratified unless the punishment be inflicted by the person injured. The privilege of resenting injuries, was therefore that private right which was the latest of being surrendered, or rather wrested from individuals in society. This revolution was of great importance with respect to government, which can never fully attain its end, where punishment in any measure is trusted in private hands. A revolution so contradictory to the strongest propensity of human nature, could not by any power, nor by any artifice, be instantaneous. It must have been gradual; and, in fact, the progressive steps tending to its completion, were slow, and, taken singly, almost imperceptible; as will appear from the following history. And to be convinced of the difficulty of wresting this privilege from individuals, we need but reflect upon the practice of duelling, so customary in times past; which the strictest attention in the magistrate, joined with the severest punishment, have not altogether been able to repress.
No production of art or nature is more imperfect than is government in its infancy, com-<23>prehending no sort of jurisdiction, civil or criminal. What can more tend to break the peace of society, and to promote universal discord, than that every man should be the judge in his own cause, and inflict punishment according to his own judgment? But instead of wondering at the original weakness of government, our wonder would be better directed upon its present state of perfection, and upon the means by which it hath arrived to that state, in opposition to the strongest and most active principles of human nature. This subject makes a great figure in the history
[print edition page 23]
of man; and that it partly comes under the present undertaking, I esteem a lucky circumstance.
A partiality rooted in the nature of man, makes private revenge a most dangerous privilege. The man who is injured, having a strong sense of the wrong done him, never dreams of putting bounds to his resentment. The offender, on the other hand, under-rating the injury, judges a slight atonement sufficient. Further, the man who suffers is apt to judge rashly, and to blame persons without cause. To restrain the unjust effects of natural partiality, was not an easy task; and probably was not soon attempted. Butearly measures were taken to prevent the bad effects of rash judgment, by which the innocent were often oppressed. We have one early instance among the Jews: Their <24> cities of refuge were appointed as an interim sanctuary to the man slayer, till the elders of the city had an opportunity to judge whether the deed was voluntary or casual. If casual, the man was protected from the resentment of the party offended, called in the text the avenger of blood: but he was to remain in that city until the death of the high priest, to give time for resentment to subside. If the man taking benefit of the sanctuary was found guilty, he was delivered to the avenger of blood that he might die.* In the laws of the Athenians, and also of the barbarous nations who dismembered the Roman empire, we find regulations that correspond to this among the Jews; and which, in a different form, prevented erroneous judgment still more effectually than was done by the cities of refuge. If a crime was manifest, the party injured might avenge himself without any ceremony. Therefore it was lawful for a man to kill his wife and the adulterer found together.† It was lawful for a man to kill his daughter taken in the act of fornication. The same was lawful to the brothers and uncles after the father’s death.‡ And it was lawful to kill a thief apprehended under night with stolen goods.|| <25> But if the crime was not manifest, a previous trial was required, in order to determine whether the suspected person was guilty or innocent. Thus a married woman suspected of adultery,
[print edition page 24]
must be accused before the judge; and, if found guilty, she and the adulterer are delivered over to the husband to be punished at his will.* If a free woman live in adultery with a married man, she is delivered by the judges to the man’s wife to be punished at her will.† He that steals a child, shall be delivered to the child’s relations to be put to death, or sold, at their pleasure.‡ A slave who commits fornication with a free woman, must be delivered to her parents to be put to death.||
In tracing the history of law through dark ages, unprovided with records, or so slenderly provided as not to afford any regular historical chain, we must endeavour to supply the broken links, by hints from poets and historians, by collateral facts, and by cautious conjectures drawn from the nature of the government, of the people, and of the times. If we use all the light that is afforded, and if the conjectural facts correspond with the few facts that are distinctly vouched, and join all in one regular chain, more <26> cannot be expected from human endeavours. Evidence must afford conviction, if it be the best of the kind. This apology is necessary with regard to the subject under consideration. In tracing the history of the criminal law, we must not hope that all its steps and changes can be drawn from the archives of any one nation. In fact, many steps were taken and many changes made, before archives were kept, and even before writing was a common art. We must be satisfied with collecting the facts and circumstances as they may be gathered from the laws of different countries: and if these put together make a regular chain of causes and effects, we may rationally conclude, that the progress has been the same among all nations, in the capital circumstances at least; for accidents, or the singular nature of a people, or of a government, will always produce some peculiarities.
Emboldened by this apology, I proceed chearfully in the task I have undertaken. The necessity of applying to a judge, where any doubt arose about the author of the crime, was probably, in all countries, the first instance of the legislature’s interposing in punishment. It was a novelty; but it was such as could not readily alarm individuals, being calculated not to restrain the
[print edition page 25]
privilege of revenge, but only to direct revenge to its proper object. The application to a judge was made necessary among the Jews, by <27> the privilege conferred upon the cities of refuge; and, among other nations, by a positive law without any circuit. That this was the law of the Visigoths and Bavarians, hath already been said; and that it was also the law of Abyssinia and Athens, will appear below. The step next in order, was an improvement upon this regulation. The necessity of applying to a judge, removed all ambiguity about the criminal, but it did not remove an evil repugnant to humanity and justice, that of putting the offender under the power of the party injured, to be punished at his pleasure. With relation to this point, I discover a wise regulation in Abyssinia. In that empire, the degree or extent of punishment, is not left to the discretion of the person injured. The governor of the province names a judge, who determines what punishment the crime deserves. If death, the criminal is delivered to the accuser, who has thereby an opportunity to gratify his resentment to the full.* This regulation must be approved, because it restrains in a considerable degree excess in revenge. But a great latitude still remaining in the manner of executing the punishment, this also was rectified by a law among the Athenians. A person suspected of murder was first carried before the judge; and, if found guilty, was delivered to the relations of the deceased, to be put to death if they thought pro-<28>per. But it was unlawful for them to put him to any torture, or to force money from him.† Whether the regulations now mentioned, were peculiar to Athens and Abyssinia, I cannot say; for I have not discovered any traces of them in the customs of other nations. They were remedies so proper for the disease, that one should imagine they must have obtained every where some time or other. Perhaps they have been prevented, and rendered unnecessary, by a custom I am now to enter upon, which made a great figure in Europe for many ages, that of pecuniary compositions for crimes.
Of these pecuniary compositions, I discover traces among many nations. It is natural to offer satisfaction to the party injured; and no satisfaction is for either party more commodious, than a sum of money. Avarice, it is true,
[print edition page 26]
is not so fierce a passion as resentment; but it is more stable, and by its perseverance often prevails over the keenest passions. With regard to manslaughter in particular, which doth not always distress the nearest relations, it may appear prudent to relinquish the momentary pleasure of gratifying a passion for a permanent good. At the same time, the notion that punishment is a kind of debt, did certainly facilitate the introduction of this custom; and there was opportunity for its becoming universal, during the<29> period that the right of punishment was in private hands. We find traces of this custom among the ancient Greeks. The husband had a choice to put the adulterer to death, or to exact a sum from him.* And Homer plainly alludes to this law, in his story of Mars and Venus entangled by the husband Vulcan in a net, and exposed to public view:
Loud laugh the rest, ev’n Neptune laughs aloud,
Yet sues importunate to loose the god:
And free, he cries, oh Vulcan! free from shame
Thy captives, I ensure the penal claim.
Will Neptune (Vulcan then) the faithless trust?
He suffers who gives surety for th’ unjust:
But say, if that leud scandal of the sky
To liberty restor’d, perfidious, fly,
Say, wilt thou bear the mulct? He instant cries,
The mulct I bear, if Mars pefidious flies.
ODYSS. viii. l. 381.
The Greeks also admitted a composition for murder; as appears from the following passage:
Stern and unpitying! if a brother bleed,
On just atonement, we remit the deed;
A sire the slaughter of his son forgives,
The price of blood discharg’d, the murd’rer lives;
The haughtiest hearts at length their rage resign,
And gifts can conquer ev’ry soul but thine.
The gods that unrelenting breast have steel’d,
And curs’d thee with a mind that cannot yield.
ILIAD, ix. l. 743. <30>
[print edition page 27]
Again,
There in the forum, swarm a num’rous train;
The subject of debate, a town’s-man slain:
One pleads the fine discharg’d, which one deny’d,
And bade the public and the laws decide.
ILIAD xviii. l. 577.
One of the laws of the Twelve Tables was “Si membrum rupit, ni cum eo pacit, talio esto.”* And Tacitus is very express upon this custom among the Germans:† “Suscipere tam inimicitias seu patris seu propinqui quam amicitias necesse est: nec implacabiles durant; luitur enim etiam homicidium certo armentorum ac pecorum numero, recipitque satisfactionem universa domus.” We find traces of the same thing in Abyssinia,‡ among the negroes on the coast of Guinea,|| and among the blacks of Madagascar.§ The laws of the barbarous nations cited above, insist longer upon these compositions than upon any other subject; and that the practice was established among our Saxon ancestors, under the name of Vergelt, is known to all the world.
This practice at first, as may reasonably be conjectured, rested entirely upon private consent. <31> It was so in Greece, if we can trust Eustathius in his notes on the foregoing passage in the Iliad first quoted.13 He reports, that the murderer was obliged to go into banishment one year, unless he could purchase liberty to remain at home, by paying a certain fine to the relations of the deceased. While compositions for crimes rested upon this foundation, there was nothing new or singular in them. The person injured might punish or forgive at his pleasure; and might remit the punishment upon terms or conditions. But the practice, if not remarkable in its nascent
[print edition page 28]
state, made a great figure in its progress. It was not only countenanced, but greatly encouraged, among all nations, as the likeliest means to restrain the impetuosity of revenge: till becoming frequent and customary, it was made law; and what at first was voluntary, became in process of time necessary. But this change was slow and gradual. The first step probably was to interpose in behalf of the delinquent, if he offered a reasonable satisfaction in cattle or money, and to afford him protection if the satisfaction was refused by the person injured. The next step was to make it unlawful to prosecute resentment, without first demanding satisfaction from the delinquent. And in the laws of King Ina* we read, that he who takes revenge without first demanding satisfaction, must restore <32> what he has taken, and further be liable in a compensation. The third step completed the system, which was to compel the delinquent to pay, and the person injured to accept, a proper satisfaction. By the laws of the Longobards,† if the person injured refused to accept a composition, he was sent to the king to be imprisoned, in order to restrain him from revenge. And if the criminal refused to pay a composition, he also was sent to the king to be imprisoned, in order to restrain him from doing more mischief. After composition is made for manslaughter, the person injured must give his oath not further to prosecute his feud;‡ and if he notwithstanding follow out his revenge, he is subjected to a double composition.||
Altars, among most nations, were places of sanctuary. The person who fled to an altar, was held to be under the immediate protection of the deity, and therefore inviolable. This practice prevailed among the Jews, as appears by the frequent mention of laying hold on the horns of the altar. Among the Grecians,§
Phemius alone the hand of vengeance spar’d,
Phemius the sweet, the heav’n-instructed bard. <33>
Beside the gate the rev’rend minstrel stands;
[print edition page 29]
The lyre, now silent, trembling in his hands;
Dubious to supplicate the chief, or fly
To Jove’s inviolable altar nigh.
ODYSSEY xxii. l. 367.
Aedibus in mediis, nudoque sub aetheris axe,
Ingens ara fuit; juxtaque veterrima laurus,
Incumbens arae, atque umbra complexa Penates.
Hic Hecuba, et natae nequicquam altaria circum
Praecipites atra ceu tempestate columbae
Condensae, et Divum amplexae simulacra tenebant.
Ipsum autem sumptis Priamum juvenilibus armis
Ut vidit: Quae mens tam dira, miserrima conjux,
Impulit his cingi telis? aut quo ruis? inquit.
Non tali auxilio, nec defensoribus istis
Tempus eget: Non, si ipse meus nunc afforet Hector.
Huc tandem concede: Haec ara tuebitur omnes,
Aut moriere simul. Sic ore effata, recepit
Ad sese, et sacra longaevum in sede locavit.
AENEID, l. 2. l. 512.14
Altars prevailed also among Christians.15 Thus by the law of the Visigoths,* if a murderer fly to the altar, the priest shall deliver him to the relations of the deceased, upon giving oath that, in prosecuting their revenge, they will not put him to death. Had the prosecutor, at this period, been bound to accept of a composition, the privilege of sanctuary would have been unnecessary.
[print edition page 30]
<34> By this time, however, the practice of compounding for crimes had gained such authority, that it was thought hard, even for a murderer to lose his life by the obstinacy of the dead man’s relations. But this practice gaining still more authority, it was enacted in England,* That if any guilty of a capital crime fly to the church, his life shall be safe, but he must pay a composition. Thus it appears, that the privilege of sanctuary, though the child of superstition, was extremely useful while the power of punishment was a private right: But now that this right is transferred to the public, and that there is no longer any hazard of excess in punishment, a sanctuary for crimes, which hath no other effect but to restrain the free course of the criminal law and to give unjust hopes of impunity, ought not to be tolerated in any society.
When compositions first came in use, it is probable that they were authorised in slight delinquencies only. We read in the laws of the Visigoths,† That if a free man strike another free man on the head, he shall pay for discolouring the skin, five shillings; for breaking the skin, ten shillings; for a cut which reaches the bone, twenty shillings; and for a broken bone, one hundred shillings: But that greater crimes shall be more severely punished; maiming, dismember-<35>ing, or depriving one of his natural liberty by imprisonment or fetters, to be punished by the lex talionis.‡ But compositions growing more and more reputable, were extended to the grossest delinquencies. The laws of the Burgundians, of the Salians, of the Almanni, of the Bavarians, of the Ripuarii, of the Saxons, of the Angli and Thuringi, of the Frisians, of the Longobards, and of the Anglo-Saxons, are full of these compositions, extending from the most trifling injury, to the most atrocious crimes, not excepting high treason by imagining and compassing the death of the king. In perusing the tables of these compositions, which enter into a minute detail of the most trivial offences, a question naturally occurs, why all this scrupulous nicety of adjusting sums to delinquencies? Such a thing is not heard of in later times. The following answer will give satisfaction, That resentment, allowed scope among barbarians,
[print edition page 31]
was apt to take flame by the slightest spark(5). <36> Therefore, to provide for its gratification, it became necessary to enact compositions for every trifling wrong, such as at present would be the subject of mirth rather than of serious punishment. For example, where the cloaths of a woman bathing in a river, are taken away to expose her nakedness;* and where dirty water is thrown upon a woman as a mark of contumely.† But as the criminal law is now modelled, private resentment being in a good measure sunk in public punishment, nothing is reckoned criminal, but what encroaches on the safety or peace of society; and such a punishment is chosen, as may have the effect of repressing the crime in time coming, without much regarding the gratification of the party offended.
As these compositions were favoured by the resemblance that private punishment has to a debt, they were apt, in a gross way of thinking, to be considered as reparation to the party injured for his loss or damage. Therefore, in adjusting these compositions, no steady or regular distinction is made betwixt voluntary and involuntary acts.16 He who wounded or killed a man by chance, was liable to a composition;‡ and even where a man was killed in self-defence, a <37> full composition was due.|| A distinction was made by a law among the Longobards, enacting, That involuntary wrongs should bear a less composition than voluntary.§17 And the same rule did no doubt obtain among other nations, when they came to think more accurately
[print edition page 32]
about the nature of punishment(6). But such was the prevalency of resentment, that though at first no alleviation or excuse was sustained to mitigate the composition, aggravating circumstances were often laid hold of to enflame it. Thus he who took the opportunity of fire or shipwreck to steal goods, was obliged to restore fourfold.* These compositions were also proportioned to the dignity of the persons injured; <38> and from this source is derived our knowledge of the different ranks and titles of honour among the barbarous nations above mentioned. And it is a strong indication of their approach to humanity and politeness, that their compositions for injuries done to women are generally double.
As to the persons entitled to the composition, it must be obvious, in the first place, that he only had right to the composition who was injured: But if a man was killed, every one of his relations was entitled to a share, because they were all sufferers by his death. Thus, in the Salic laws,† where a man is killed, the half of the composition belongs to his children; the other half to his other relations, upon the side of the father and mother. If there be no relations on the father’s side, the part that would belong to them accrues to the fisk. The like if there be no relations on the mother’s side. The Longobards had a singular way of thinking in this matter. Female relations got no part of the composition; and the reason given is, That they cannot assist in prosecuting revenge, Non possunt ipsam faydam levare.‡ But women are capable of receiving satisfaction or atonement for a crime committed
[print edition page 33]
against their relation, and <39> therefore are entitled in justice to some share of the composition(7).
Before entering upon a new branch, I must lay hold of the present opportunity, to bestow a reflection on this singular practice of compounding for crimes. However strange it may appear to us, it was certainly a happy invention. By the temptation of money, men were gradually accustomed to stifle their resentment. This was a fine preparation for transferring the power of punishment to the magistrate, which would have been impracticable without some such intermediate step: for while individuals retain their privilege of avenging injuries, the passion of resentment, fortified by universal practice, is too violent to be subdued by the force of any government.
We are now arrived at the last and most shining period of our history; which is, to unfold the means by which criminal jurisdiction, or the right of punishment, was transferred from private hands to the magistrate. There perhaps never was in government a revolution of greater importance. While criminal jurisdiction is engrossed by every individual for his own behoof, there must be an overbalance of power in the people, inconsistent with any stable administra-<40>tion of public affairs. The daily practice of blood, makes a nation fierce and wild, not to be awed by the power of any government. A government, at the same time, destitute of the power of the sword, except in crimes against the public which are rare, must be so weak, as scarce to be a match for the tamest people: for it cannot escape observation, that nothing tends more to support the authority of the magistrate, than his power of criminal jurisdiction; because every exercise of that power, being public, strikes every eye. In a country already civilized, the power of making laws may be considered as a greater trust: But in order to establish the authority of government, and to create awe and submission in the people, the power of making laws is a mere shadow, without the power of the sword.
In the original formation of societies, to which mutual defence against some more powerful enemy was the chief or sole motive, the idea of a common interest otherwise than for defence, of a public, of a community, was scarce understood. War, indeed, requiring the strictest union among
[print edition page 34]
individuals, introduced the notion of a number of men becoming an army, governed, like a single person, by one mind and one council. But in peaceable times, every man relied upon his own prowess, or that of his clan, without having any notion of a common interest, of which no signs appeared. There was, indeed, <41> from the beginning, some sort of government;18 but it was so limited, that the magistrate did not pretend to interpose in private differences, whether civil or criminal. In the infancy of society, the idea of a public is so faint and obscure, that public crimes, where no individual is hurt, pass unregarded. But when government hath advanced to some degree of maturity, the public interest is then recognised, and the nature of a crime against the public understood. This notion must gain strength, and become universal in the course of a regular administration, spreading itself upon all affairs which have any connection with the common interest. It naturally comes to be considered, that by all atrocious crimes the public is injured, and by open rapine and violence the peace of the society broke. This introduced a new regulation, that in compounding for gross crimes, a fine, or fredum, should be paid to the fisk, over and above what the person injured was entitled to claim.
It cannot be doubted, that the compositions for crimes established by law, paved the way to these improved notions of government. Compositions were first solicited, and afterward enforced by the legislative authority. It was now no longer a novelty for the chief magistrate to interpose in private quarrels. Resentment was now no longer permitted to rage, but was <42> brought under some discipline: And this reformation, however burdensome to an individual during a fit of passion, was agreeable to all in their ordinary state of mind. The magistrate, having thus acquired such influence even in private punishment, proceeded naturally to assume the privilege of avenging wrongs done to the public merely, where no individual is hurt. And in this manner was the power of punishing crimes against the state, established in the chief magistrate.
To public crimes in the strictest sense where no individual is hurt, was at first this new-assumed privilege confined. In the laws of the Bavarians,*
[print edition page 35]
we find that the goods of those who contract marriage within the prohibited degrees, are confiscated. In the laws of King Ina,* he who fights in the King’s house forfeits all his substance, and his life is to be in the king’s power. The judge who knowingly doth injustice, shall lose his liberty, unless the king admit him to redeem the same.†
It being once established, that there is a public, that this public is a politic body, which, like a real person, may sue and defend, and in particular is entitled to resent injuries; it was an easy step, as hinted above, to interest the <43> public even in private crimes, by imagining every atrocious crime to be a public as well as a private injury; and in particular, that by every open act of violence, the peace of the public or country is broke. In the oldest compositions for crimes that are recorded, there is not a word of the public; the whole is given to the private party. In the Salic laws, there is a very long list of crimes, and of their conversion in money, without any fine to the public. But in the tables of compositions for crimes among the Burgundians, Allamanni, and Longobards, supposed to be more recent, there is constantly superadded a fine, or fredum, to the king. And in the laws of King Canute,‡ “If murder be committed in a church, a full compensation shall be paid to JESUS CHRIST, another full compensation to the king, and a third to the relations of the deceased.” The two first compositions, are evidently founded upon the foregoing supposition, that the peace of the church, and the king’s peace, are broke by the murder.
After establishing compositions for crimes, which proved a very lucky exertion of legal authority, the public had not hitherto claimed any privilege but what belonged to every private person, viz. that of prosecuting its own resentment. But this practice of converting punish-<44>ment into money, a wise institution indeed to prevent a greater evil, was yet, in itself, too absurd to be for ever supported against enlightened reason. Certain crimes came to be reckoned too flagrant and atrocious to admit a pecuniary conversion; and, perhaps, the lowness of the conversion contributed to this thought; for compositions established in days of poverty, bore noproportion to crimes after nations became rich and powerful. That this was the case of
[print edition page 36]
the old Roman compositions, every one knows who has dipped into their history. This evil required a remedy, and it was not difficult to find one. It had long been established, that the person injured had no claim but for the composition, however disproportioned to the crime. Here then was a fair opportunity for the king, or chief magistrate, to interpose, and to decree an adequate punishment. The first instances of this kind had probably the consent of the person injured; and it is not difficult to persuade any man of spirit, that it is more for his honour, to see his enemy condignly punished, than to put up with a trifling compensation in money. However this be, the new method of punishing atrocious crimes gained credit, became customary, and passed into a law. If a punishment was inflicted adequate to the crime, there could be no claim for a composition, which would be the same as paying a debt twice. And <45> thus, though indirectly, an end was put to the right of private punishment in all matters of importance.
Theft is a crime that greatly affected the public after the security of property came to be a capital object; and therefore theft afforded probably the first instances of this new kind of punishment. It was enacted in England, That a thief, after repeated acts, shall have his hand or foot cut off.* Among the Longobards, the third act of theft was punished with death.† By the Salic laws, theft was punished with death, if proved by seven or five credible witnesses.‡ And that the first instances of this new punishment had the consent of the person injured, is made probable from the same Salic laws, in which murder was punished with death, and no composition admitted without consent of the friends of the deceased.||
A power to punish all atrocious crimes, though of a private nature, was a valuable acquisition to the public. This acquisition was supported by the common sense of mankind, which, as observed in the beginning of this discourse, entitles even those to inflict punishment who are not injured by the crime; and if such privilege belong to private persons, there could be no doubt that <46> the magistrate was peculiarly privileged. Here, by the way, may be remarked, a striking instance of the aptitude of man for society.
[print edition page 37]
By engrossing the right of punishing, government acquired great vigour. But did nature dictate that none have right to punish but those who are injured, government must for ever have remained in its infantine state: for, upon that supposition, I can discover no means sufficient to contradict human nature so far, as to confine to the magistrate the power of dispensing punishments.
The criminal jurisdiction of the magistrate being thus far advanced, was carried its full length without meeting any longer with the slightest obstruction. Compositions for crimes were prohibited, or wore out of practice; and the people were taught a salutary doctrine, That it is inconsistent with good government to suffer individuals to exert their resentment, otherwise than by applying to the criminal judge; who, after trying the crime, directs an adequate punishment to be inflicted by an officer appointed for that purpose; admitting no other gratification to the person injured, but to see the sentence put in execution, if he be pleased to indulge his resentment so far.
But as this signal revolution in the criminal law, must have been galling to individuals, un-<47>accustomed to restrain their passions(8), all <48>
[print edition page 38]
measures were taken to make the yoke easy, by directing such a punishment as tended the most to gratify the person injured. Whether this was done in a political view, or through the still subsisting influence of the right of private <49> revenge, is not material. But the fact is curious, and merits attention; because it unfolds the reason of that variation of punishment for the same crime, which is remarkable in different ages. With respect to theft, the punishment among the Bavarians was increased to a ninefold restitution, calculated entirely to satisfy the person injured, before they thought of a corporal punishment.* The next step was demembration, by cutting off the hand or foot; but this only after repeated acts.† Among the Longobards, it required a third act of theft before a capital punishment could be inflicted.‡ And at last theft was to be punished with death in all cases, if clearly proved.|| By this time, it would appear, the interest of the public, with respect to punishment, had prevailed over private interest; or at least had become so weighty as to direct a punishment that should answer the purpose of terror, as well as of private resentment. There is a curious fact relating to the punishment of theft, which must not be overlooked. By
[print edition page 39]
the laws of the Twelve Tables, borrowed from Greece, theft was punished with death in a slave, and with slavery in a free man. But this law was afterwards mitigated, by converting the punishment into a pecuniary composition; subjecting the furtum manifestum to a <50> fourfold restitution, and the furtum nec manifestum, to the restitution of double. The punishment of theft, established by the law of the Twelve Tables, might suit some of the civilized states in Greece, which had acquired the notion of a public, and of the interest which a public has to punish crimes in terrorem. But the law was unsuitable to the notions of a rude people, such as the Romans were in those days, who of punishment understood no other end but the gratification of private resentment. Nor do I find in any period of the Roman history, that theft was considered as a crime against the public, to admit of a punishment in terrorem. Toward such improvement there never was a step taken but one, which was not only late, but extremely slight, viz. that a thief might be condemned to an arbitrary punishment, if the party injured insisted for it.*
I make another remark, that so long as the gratification of the prosecutor was the chief aim in punishing theft, the value of the stolen goods was constantly considered as a preferable claim;† for unless the prosecutor obtain restitution of his goods, or their value, there can be no sufficient gratification. But after the interest of the public came chiefly to be considered in punishing theft, the prosecutor’s claim of resti-<51>tution was little regarded; of which our act 26. parl. 1661, is clear evidence; witness also the law of Saxony, by which if a thief suffer death, his heir is not bound to restore the stolen goods.‡
For the same reason, a false witness is now punished capitally in Scotland, though not so of old. By the Roman law,|| and also by our common law,§ the punishment of falsehood is not capital; which is also clear from act 80. parl. 1540, and act 22. parl. 1551. Yet our supreme criminal court has, for more than a century, assumed the power of punishing this crime
[print edition page 40]
capitally, as well as that of bearing false witness, though warranted by no statute. The notions of a public, and of a public interest, are brought to perfection; and the interest of the public to be severe upon a crime so prejudicial to society, hath in these instances prevailed over even the strict rules of the criminal law(9). <52>
Upon this head an observation occurs, which will be found to hold universally. It regards a material point, that of adjusting punishments to crimes, when criminal jurisdiction is totally engrossed by the public. After this revolution in government, punishments at first are found extremely moderate; not only for the reason above given that they are directed chiefly to gratify the persons injured, but for a separate reason. Though the power of the sword adds great authority to a government, yet this effect is far from being instantaneous; and till authority be fully established, great severities are beyond the strength of a legislature. But when public authority is firmly rooted in the minds of the people, punishments more rigorous may be ventured upon, which are rendered necessary by the yet undisciplined temper of the people. At last, when a people have become altogether tame and submissive under a long and steady administration, punishments, beingless and less necessary, are commonly mild, and ought always to be so(10). <53>
[print edition page 41]
Another observation occurs, connected with the former, that to preserve a strict proportion betwixt a crime and its punishment, is not the only or chief view of a wise legislature. The purposes of human punishments are, first, to add weight to those which nature has provided, and next to enforce municipal regulations intended for the good of society. In this view, acrime, however heinous, ought to be little regarded, if it had no bad effect in society. On the other hand, a crime, however slight, ought to be severely punished, if it tend greatly to disturb the <54> peace of society. A dispute about the succession to a crown, seldom ends without a civil war, in which the party vanquished, however zealous for right and for the good of their country, must be considered as guilty of treason against their lawful sovereign; and to prevent the ruin of civil war, it becomes necessary that such treason be attended with the severest punishment; without regarding that the guilt of those who suffer arose from bad success merely. Hence, in regulating the punishment of crimes, two circumstances ought to weigh, viz. the immorality of the action, and its bad tendency; of which the latter appears to be the capital circumstance, as the peace of society is an object of much greater importance, than the peace, or even life, of a few individuals.
One great advantage, among many, of transferring to the magistrate the power of punishment, is, that revenge is kept within the strictest bounds, and confined to its proper objects. The criminal law was in perfection among the ancient Egyptians. Among them, a woman with child could not be put to death till she was delivered. And our author Diodorus Siculus* observes, That this law was received by many of the Greek states, deeming it unjust that the innocent should suffer with the guilty; and that a child, common to father and mother, should lose <55> its life for the crime of the
[print edition page 42]
mother. The power to punish must have long been the privilege of the magistrate, before a law so moderate and so impartial could take place. We find no similar instance while punishment was in the hands of individuals: Such moderation is incompatible with the partiality of man, and the inflammable nature of resentment. Nor is this the only instance of wisdom and moderation in the criminal law of the country now mentioned. Capital punishments are avoided as much as possible; and in their stead punishments are chosen, that, equally with death, restrain the delinquent from committing the crime a second time. In a word, the ancient Egyptian punishments have the following peculiar character, that they effectually answer their end, with less harshness and severity, than is found in the laws of any other nation ancient or modern. Thus those who revealed the secrets of the army to the enemy, had their tongues cut out. Those who coined false money, or contrived false weights, or forged deeds, or razed public records, were condemned to lose both hands. He who committed a rape upon a free woman, was deprived of his privy members; and a woman committing adultery, was punished with the loss of her nose, that she might not again allure men to wantonness(11). <56>
[print edition page 43]
I have one thing further to add upon public punishment. Though all civilized nations have <57>agreed to forbid private revenge, and to trust punishment, whether of public or private crimes, <58> in the hands of
[print edition page 44]
disinterested judges; yet they differ as to the persons who are allowed to pro-<59>secute before these judges. In Rome, where there was no calumniator publicus, no attorney-general, every one was permitted to prosecute crimes that have a public bad tendency, and for that reason are termed public crimes. This was a faulty institution; because such a privilege given to individuals, could not fail to be frequently made the instrument of venting private ill-will and revenge. The oath of calumny, which was the first check thought of, was far from restraining this evil. It grew to such a height, that the Romans were obliged to impose another check upon criminal prosecutors, indeed of the severest kind, which shall be given in <60> Voet’s words:*
Ne autem temere quis per accusationem in alieni capitisdiscrimenirruerit, neve impunita esset in criminalibus mentiendi atque calumniandilicentia, loco jurisjurandi calumniae adinventa fuit in crimen subscriptio, cujus vinculo cavet quisque quod crimen objecturus sit et in ejus accusatione usque ad sententiam perseveraturus, dato eum in finem fidejussore; simulque ad talionem seu similitudinem supplicii sese obstringet, si in probatione defecisse et calumniatus esse deprehensus fuerit.19
Had the Roman law continued to flourish any considerable time after this regulation, we may be pretty certain it must have been altered. It was indeed
[print edition page 45]
a complete bar to accusations true or false; for what man will venture his life and fortune, in bringing to punishment a criminal who hath done him no injury, however beneficial it may be to the state to have the criminal destroyed? This would be an exertion of public spirit, scarce to be expected among the most virtuous people, not to talk of times of universal corruption and depravity.
In modern governments, a better method is invented. The privilege of prosecuting public crimes belongs to the chief magistrate. The King’s Advocate in Scotland is calumniator publicus; and there is delegated to him from the <61> crown, the privilege of prosecuting public crimes. In England, personal liberty has, from the beginning, been more sacred than in Scotland; and to prevent the oppression of criminal prosecutions, there is in England a regulation much more effectual than that now mentioned. A grand jury is appointed in every county for a previous examination of capital crimes intended to be prosecuted in name of the crown; and they must find a billa vera, as it is termed, without which the trial cannot proceed. But the crown is not tied to that form. A criminal trial may proceed on an information, without any previous examination by a grand jury.20
With respect to private crimes, where individuals are hurt in their persons, goods, or character, the public, and the person injured, have each of them separately an interest. The King’s Advocate may prosecute such crimes alone, as far as the public is concerned in the punishment. The private party is interested to obtain reparation for the wrong done him. Even where this is the end of the prosecution, our forms require the concurrence of the King’s Advocate, as a check upon the prosecutor, whose resentment otherwise may carry him beyond proper bounds. But this concurrence must be given, unless the Advocate will take upon him to show, that there is no foundation for the prosecution; for the Advocate cannot bar the private party from the <62> reparation due him by law; more than the private party21 can bar the Advocate from exacting that reparation or punishment which is a debt due to the public.
[print edition page 46]
The interposition of the sovereign authority, to punish crimes more severely than by a composition, was at first, we may believe, not common; nor to be obtained at any rate, unless where the atrocity of the crime called aloud for an extraordinary punishment. But it happened in this, as in all similar cases where novelty wears off by reiteration of acts, that what at first is an extraordinary remedy, comes in time to be reckoned a branch of common law. There being at first, however, no rule established for the King’s interposition, it was understood to be a branch of his prerogative to interpose or not at his pleasure; and to direct an extraordinary punishment, or to leave the crime to the composition of common law. Though evidently this prerogative could not regularly subsist after criminal jurisdiction was totally engrossed by the public;22 yet our forefathers were not so clear-sighted. The prerogative now mentioned, was misapprehended for a power of pardoning even after sentence; and the resemblance of the cases made way for the mistake. It appears to me, that the King’s prerogative of pardoning arbitrarily, which is asserted by all lawyers, can have no foundation other than this now assigned. <63> Were it limited in criminal as in civil cases, not to give relief but where strict law is over-balanced by equity, the prerogative would have a more rational foundation. But we must prosecute the thread of our history. Though the option of inflicting an adequate punishment, or leaving the crime to common law, was imperceptibly converted into an arbitrary power of pardoning even after sentence; yet the foundation of this new prerogative was not forgot. The King’s pardon is held as leaving the crime to common law, by which the person injured is entitled to a composition. And the evident injustice of a pardon upon any other condition, tends no doubt to support this construction: For it would be gross injustice, that the law should suffer a man to be injured, without affording him any satisfaction, either by a public punishment, or by a private composition. This, however, it would appear, has been attempted. But the matter was settled by a law of Edward the Confessor,* declaring, That the King, by his prerogative, may pardon a capital crime; but that the criminal must satisfy the person injured, by a just composition.
[print edition page 47]
Thus the Vergelt, or composition for crimes, which obtained in all cases by our old law, is still in force where the criminal obtains a pardon; and the claim that the relations of the <64> deceased have against the murderer who obtains a pardon, known in the law of Scotland by the name of assythment, has no other foundation. The practice is carried farther, and may be discovered even in civil actions. When a process of defamation is brought before a civil court, or a process for any violent inversion of possession, a sum is generally decreed in name of damages, proportioned to the wrong done; even where the pursuer cannot specify any hurt or real damage. Such a sentence can have no other view, but to gratify the resentment of the person injured, who has not the gratification of any other punishment. It is given, as lawyers say, in solatium; and therefore is obviously of the nature of a Vergelt, or composition for a crime. Damages awarded to a husband, against the man who corrupts his wife, or against the man who commits a rape upon her, are precisely of the same nature.
In taking a review of the whole, the manners and temper of savages afford no agreeable prospect. But man excels other animals, chiefly by being susceptible of high improvements in a well-regulated society. In his original solitary state, he is scarce a rational being. Resentment is a passion, that, in an undisciplined breast, appears to exceed all bounds. But savages are fierce and brutal; and the passion of resentment is in the savage state the chief protection that a <65> man hath for his life and fortune.23 It is therefore wisely ordered, that resentment should be a ruling passion among savages. Happy it is for civilized societies, that the authority of law hath in a good measure rendered unnecessary this impetuous passion; and happy it is for individuals, that early discipline under the restraint of law, by calming the temper and sweetening manners, hath rendered it a less troublesome guest than it is by nature. <66>
