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