Historical Law-Tracts. Henry Home, Lord Kames

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      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 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,

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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.

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