Historical Law-Tracts. Henry Home, Lord Kames
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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,
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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>
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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
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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;
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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;