Historical Law-Tracts. Henry Home, Lord Kames
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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
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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
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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,
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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
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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