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Cornell University Library 
 K 5032.Z9C52 1890 
 
 3 1924 021 936 590 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924021936590 
 
LECTURES 
 
 GKOWTH OF CKIMINAL LAW IN ANCIENT 
 COMMUNITIES. 
 
LE C TITHE S 
 
 GROWTH OF CRIMINAL LAW 
 
 ANCIENT COMMUNITIES 
 
 BY 
 ***** 
 
 EICHARD E. CHEERY, LL.D. 
 
 BAEEI8IEE-AI-IAW; 
 
 REID PROFESSOR OF CONSTITUTIONAL AND CKIMINAL LAW IN THE 
 
 UNIVERSITY OE DUBLIN 
 
 Ovtol v6ji,ov far) e'xovTes, 
 lavTois £io"t vofioi 
 
 fLontrott 
 MACMILLAN AND 00. 
 
 AND NEW YORK 
 1890 
 
 [All rights reserved] 
 
DUBLIN : 
 
 PRINTED AT THE UNIVERSITY PRESS, 
 BY PONSONRY AND WELDRICK. 
 
PREFACE. 
 
 TN the six lectures contained in the present volume I 
 have attempted, as briefly as possible, to compare 
 the early ideas of several nations as to crimes and 
 their punishment. I have selected, legal systems as 
 far apart from, and as much independent of, each 
 other as possible, with a view to showing that identity 
 of usage did not arise from the adoption by one nation 
 of the laws or institutions of another, but rather 
 from the inherent principles of human nature. The 
 close similarity between the early institutions of very 
 distant races as regards Penal Law is extremely 
 remarkable. Nothing illustrates so much the complete 
 contrast between modern and ancient ideas, on legal 
 subjects, as the study of this branch of Law histori- 
 cally. The existence of Law, without any Sovereign 
 authority — without any sanction, or recognized tribu- 
 nal — seems to us almost a contradiction in terms. 
 Yet, it was out of such a state of society that Law 
 developed itself in all its branches, gradually and 
 
vi Preface. 
 
 slowly. In the study of Criminal Law, we really 
 have a test of the validity of the historical method. 
 We can easily understand how such matters as the 
 laws of inheritance and contract arose from custom, 
 for even to the present day we recognize, in some 
 degree, the binding force of customs in these branches 
 of Law ; but it is difficult to believe that Criminal Law 
 could have originated in the same manner. Criminal 
 Law naturally seems, even in its earliest stage, to be 
 a restriction upon custom — a system of commands, 
 necessarily, we would suppose, imposed by some poli- 
 tical superior, to restrain the practice of customs which 
 were disapproved of, rather than to sanction those 
 already observed. 
 
 It appears to have been from the Criminal Law 
 that the Analytical School of Jurisprudence derived 
 its very notion of Law. To show, therefore, that the 
 origin of Criminal, as well as of other branches of 
 Law, was in primeval custom, is extremely important. 
 My object, in these lectures, has been to do so, and 
 at the same time to point out the traces of primitive 
 ideas which remain in later developments of Criminal 
 Law. I am aware that I have only carried out this 
 object in a very imperfect and ''sketchy" manner, 
 but I could do no more than this in the limited number 
 of lectures which a Professor of Law may legitimately 
 devote to such an abstract subject. 
 
Preface. vii 
 
 The substance of the second lecture on Ancient 
 Irish Law is taken from an article which I wrote some 
 time ago in the Law Magazine and Review. It was the 
 study of the Brehon Laws which completely satisfied 
 Sir Henry Maine as to the validity of his historical 
 method as applied to Civil Law. I do not think any- 
 one who reads the Book of Aicill, however cursorily, 
 can doubt that his method applies equally well to 
 Criminal or Penal Law. The same state of affairs, as 
 the Book of Aicill exhibits to us as existing in ancient 
 Ireland, seems to have prevailed in all other nations 
 at one period of their progress, though only traces 
 of its existence remain elsewhere in the maturer laws 
 of a more settled state of society. 
 
 E. E. OHBEEY. 
 
 Trinity College, Dublin, 
 October, 1890. 
 
CONTENTS. 
 
 LECTTJEE I. 
 INTRODUCTORY. 
 
 PEIMITIVE CUSTOM AS TO CRIMES. 
 
 PACE 
 
 Distinction between the terms Criminal and Penal Law— Advantages 
 of historical study of Law — ■ Illustrated by history of noxal 
 actions — Instances of confusion introduced into legal principles 
 through ignorance of their history — Ancient Laws were not com- 
 mands, but customs sanctioned by usage — Private revenge, the 
 earliest form of punishment recognized by all communities — Pre- 
 valence of retaliation in various countries — Growth of system of 
 pecuniary compensation instead — The death-fine in Greece — 
 Ancient Germany — England — Ireland — Sweden — Turkish Empire 
 — Traces of it in Roman Law — Forbidden by Mosaic Legislation — 
 First germ of a judicial proceeding — Tribal Assemblies fix the 
 amount of fines and enforce payment of them — Outlawry, the 
 earliest sanction of Law — Transition from stage of Penal Law to 
 Criminal Law ....... 1 
 
 LECTUEE II. 
 
 ANCIENT IRISH LAW. 
 
 Value of Brehon Laws in study of ancient criminal jurisprudence — 
 Chief authorities — The Senchus Mm — Account of its compilation 
 — Indications of its very ancient character — Summary of principles 
 of Brehon Law as to crimes — Eric fines — Story of the " Fate of the 
 Children of Turenn" — Illustrates stage of legal progress anterior 
 to arbitration — Liability of relatives for fines — Punishment for 
 theft — Violation of the King's "precinct" — Problem as to the 
 existence of a sanction— Outlawry — Progress of primitive ideas on 
 penal law . . . . . . . .17 
 
 b 
 
x Contents. 
 
 LECTURE III. 
 LAW OF SEMITIC RACES. 
 
 I. HEBBEW LAW. 
 
 PAGE 
 
 Influence of Religion upon Law — Contrast of native and foreign, reli- 
 gions in this respect — Tenacity of the Jews as to their legal and 
 religious regulations — Hebrew Law of Homicide — Prohibition of 
 the death fine — Institution of Cities of Refuge — First trace of a 
 judicial proceeding in Hebrew Law — The Lex Talionis as regards 
 lesser injuries — Compensation allowed to be received for them — 
 Law of private property and succession — Punishment for theft — 
 Recognition of paternal rights . . . . .40 
 
 n. MOHAMMEDAN LAW. 
 
 Founded upon the Koran — Development of the law through theory of 
 tradition — Principle of retaliation inculcated, but death fines not 
 forbidden, as among the Jews — Practice in Persia and other 
 Mohammedan countries as to murder ; — as to accidental homicide — 
 Punishment for theft— The Turkish Penal Code of 1840 . . 51 
 
 LECTURE IV. 
 
 ROMAN PENAL LAW. 
 
 Slow development of the notion of a crime in the Roman system — Rapid 
 development of legal ideas otherwise — Contrast of English and 
 Roman Law in this respect — Non-religious character of Roman 
 
 Law — The XII. Tables Their provisions as to offences — Sketch of 
 
 subsequent history of penal law at Rome — Nature of obligations 
 ex delicto — The actio furti — Comparison of Roman and English 
 treatment of theft — How homicide was dealt with at Rome — The 
 QwBstores Paricidii — Importance of their appointment in the 
 history of criminal law— Legislation of Sulla — Degradation of 
 criminal trials in later period of the Republic — Three causes re- 
 tarded the growth of criminal law at Rome : (1) Republican form 
 of government ; (2) Irreligious character of the people ; (3) Exis- 
 tence of slavery . . . . . . .56 
 
Contents. xi 
 
 LECTUEE V. 
 EARLY ENGLISH PENAL LAW. 
 
 PAGE 
 
 History of English. Criminal Law continuous from, earliest Anglo-Saxon 
 times to the present day — Anglo-Saxon Laws as to crimes — Private 
 revenge recognized and allowed — Introduction of system of pecu- 
 niary fines — Legislation of Alfred to enforce fines and restrict re- 
 venge — Original position of the King as regards criminal matters — 
 Threefold fine for homicide — Acceptance of, discretionary in certain 
 cases — Pinal prohibition of revenge by Statute of Marlbridge — 
 Outlawry, its origin and growth — Bracton's account of it — Causes 
 of the decline of punishment by fine : (1) Influence of Religion ; 
 (2) System of frankpledge ; (3) Growth of Royal Jurisdiction . 78 
 
 LECTURE VI. 
 
 EARLY ENGLISH CRIMINAL LA"W. 
 
 Origin of prosecution by the Crown in criminal matters — Modern form 
 of an Indictment — Shows traces of its history — The King's Peace — 
 Real breach of the peace formerly necessary in order to constitute a 
 criminal offence — System of appeals or private prosecutions for 
 offences — Their origin and history — Instances of in reigns of 
 Elizabeth and Charles I. — Last instance of, in 1818 — The wager of 
 battle then recognized by the Court of King's Bench as part of the 
 law of the land — Conservative character of English Law — Histo- 
 rical explanation of many apparently anomalous rules of modern 
 English Criminal Law . . . . . .93 
 
LECTURE I. 
 
 INTEODTJOTOEY. 
 
 PEIMITIVE CUSTOM AS TO CEIMES. 
 
 My object, in the present Course of Lectures, is to trace 
 historically the manner in which Criminal or Penal Law 
 developed itself among ancient societies. The terms Criminal 
 Law and Penal Law are by no means identical. Though with 
 our modern notions we are apt to regard them as so, in the 
 investigation of the laws of early communities the distinction 
 between them must be clearly attended to. Penal Law is a 
 term of wider signification than Criminal Law ; it means that 
 branch of law which deals with punishment, by whomsoever 
 imposed and with whatsoever object. All Criminal Law is Penal 
 in its nature, i. e. it effects its ends by means of punishment, 
 but all Penal Law is not Criminal. There are still existing in 
 our own legal system many penal actions of a civil nature, such 
 as what are called qui tarn actions, where a private individual seeks 
 to recover a penalty for the violation of some statutory duty by 
 another ; but such actions have become so rare and unimportant 
 that it has become usual with us to understand the terms 
 " penal " and " criminal " as identical. In other systems of 
 law, however, and especially in ancient legal systems, the 
 principle of punishment is the foundation of a considerable 
 portion of law which cannot be called criminal. Even in 
 modern English law a great part of the law of torts is penal 
 
2 Introductory. [lect. i. 
 
 in its nature ; and great confusion has been caused by the non- 
 recognition of this fact in the rules which have been laid down 
 at various times as to the measure of damages. 
 
 Criminal Law, as distinct from Penal Law, is difficult to 
 define. A good description of the subject-matter to which the 
 term is commonly applied will be found in Mr. Justice Stephen's 
 History of Criminal Law (vol. i., pp. =2-4). As distinct from 
 Penal Law, Criminal Law involves, I think, three elements : 
 firstly, that the proceeding is of a public nature, instituted, in 
 theory at least, by the State, or by some public authority repre- 
 senting the State, and not by the individual injured, in case any 
 one individual is so injured ; secondly, that the act upon which 
 the proceedings are grounded, is, or is considered to be, a wrong 
 or injury to society in general, and not to one person only. This 
 is the characteristic most generally referred to as the distin- 
 guishing feature of Criminal Law ; and, thirdly, as a logical 
 consequence of the two former, that the offence cannot be 
 purged by a subsequent compliance with the law violated, or 
 by arrangement with the person primarily injured ; the object 
 of the punishment being, not to assist such person, but to 
 protect society, by deterring others from committing similar 
 offences. The public nature of the wroDg which is punished, 
 the public nature of the proceeding by which it is punished, 
 and the public nature of the reasons for punishment will be 
 found, on examination, to be present in every case which is 
 considered in our law to be criminal in its character. The 
 matter is of great practical importance to the lawyer, as upon 
 the question, whether a proceeding is or is not of a criminal 
 nature, depends the important question, whether an appeal 
 lies under the Judicature Act from the decision of a Court of 
 first instance or not. Imprisonment for contempt of Court is 
 distinctly a proceeding of a punitive nature ; still it is gene- 
 rally held to be a civil and not a criminal proceeding, for 
 the object of the imprisonment is not so much to punish as to 
 compel compliance with the law : and a person who has been 
 committed for contempt can generally procure his release by 
 
lect. I.] Primitive Custom as to Crimes. 3 
 
 doing the act for the refusal to do which the imprisonment was 
 imposed. Thus, in a recent case where a witness was committed 
 for refusing to answer a question in a bankruptcy matter under 
 the 385th Section of the Bankruptcy (Ireland) Act, 1857, it 
 was held by the Court of Appeal, upon this ground, that the 
 proceeding was of a civil and not a criminal nature {In re 
 Keller, 22 L. E. Ir., 158). " The refusal of a witness to 
 answer a question may be a punishable contempt," says Fitz- 
 Gibbon, L, J., " but a proceeding taken, not to punish him, 
 but to compel him to give evidence is not an exercise of punitive 
 jurisdiction" (22 L. R. Ir., at p. 200). Similarly, imprison- 
 ment for debt under the old law was never considered to be 
 criminal in its nature. 
 
 This distinction, as I have said, between Criminal and Penal 
 Law is of the greatest importance in the study of primitive 
 jurisprudence. It is pointed out by Sir H. Maine, in the 
 10th chapter of Ancient Law, that in early times the most 
 important branch of the Law was Penal Law ; but that, at the 
 same time, true Criminal Law was almost entirely unknown, (a) 
 The notion of an offence against the State is of entirely modern 
 growth; and the theory that punishment is imposed for the sake 
 of reforming the criminal and deterring others from following 
 Ids example is even still more modern. It is extremely inter- 
 esting to trace, historically, the growth of these ideas, and to 
 show how Penal Law, and afterwards Criminal Law, gradually 
 developed itself in different legal systems. 
 
 It is scarcely necessary, at the present day, to put forward 
 any defence for the historical treatment of a legal subject. 
 Still, I fear, the advantages of the historical method are more 
 recognized in theory than appreciated in practice. Practical 
 lawyers naturally confine their attention almost altogether to 
 the law as it is, and disregard, or treat with contempt, historical 
 disquisitions upon its origin ; and this naturally leads students, 
 who desire only to be practical lawyers, to follow their example. 
 
 (a) Ancient Law, pp. 369-371. 
 
 b2 
 
4 Introductory. [lect. i. 
 
 The analytical method of study, as it is called, has many grave 
 defects, and one who pursues it alone 'will seldom or never 
 hecome a really sound lawyer : for law is an art rather than a 
 science, and a lawyer needs much more a knowledge of how to 
 apply his principles than a mere verbal acquaintance with these 
 principles themselves. The study of law in ordinary text-hooks, 
 without an acquaintance with its history, is apt to encourage in 
 the student one of the greatest faults in practice, namely, rash 
 generalization. A student who pursues the method of Austin and 
 Bentham alone is apt to suppose that law is like mathematics, 
 certain and definite, and that its principles are applied, like the 
 axioms of Euclid, with rigour and strictness to each ease without 
 variation. Every trained lawyer knows what immense diffi- 
 culty there is in applying legal principles, and what caution and 
 care are necessary in ascertaining the ratio decidendi of one case, 
 and in applying it to another. A knowledge of the history of 
 the branch of law with which any principle is connected is 
 indeed absolutely necessary before its true bearings and the 
 limits of its application can be fully understood. Principles 
 are frequently applied quite illogically to different cases ; and 
 sometimes, in the course of the development of law, the true 
 principle is forgotten, and an entirely wrong principle is invented 
 to explain rules of law which are well established. The result 
 is that the law is regulated, partly in accordance with one, and 
 partly in accordance with another principle, and the application 
 of each leads to entirely different results. In dealing with cases 
 such as these, the abstract method of the analytical school of 
 jurisprudence breaks down completely. A knowledge of the 
 history of the law is necessary before one can at all understand 
 the course of its development. Take, for instance, the well- 
 established principle of the liability of a master for the wrongful 
 acts of his servant when engaged in doing his master's business. 
 We are all familiar with the rule that if a grocer's cart is driven 
 carelessly by its driver, and in consequence of the driver's negli- 
 gence any person is injured, the grocer is liable to an action. 
 Here it is said that the principle of the master's liability is his 
 
lect. i.] Primitive Custom as to Ciimes. 5 
 
 negligence in employing an unskilful servant. If this were 
 really so, the logical result would be, that if the master were 
 guilty of no negligence in employing the servant, he would not 
 be liable, or in other words, that a traverse of the master's per- 
 sonal negligence would be a good defence to the action. This 
 is, however, not the case. It is no defence that the master used 
 the greatest care in employing his servants. The real fact 
 here is, that the theory of negligence is an after-thought, 
 invented when the true principle of the action had been for- 
 gotten. The liability of the master is in reality a survival of 
 the principle of the liability of an owner for the act of his slave-, 
 and is based on the same principle as his liability for injuries 
 committed by animals in his possession. The historical investi- 
 gation of the matter proves to us that the real basis of this 
 liability is not any theory of negligence on the part of the 
 master, but an entirely different one. In the Roman Law a 
 class of actions existed called noxal actions, which provided for 
 this case of vicarious liability. The defendant had the option 
 of surrendering the delinquent instead of paying the damage. 
 This right of avoiding liability by a surrender of the slave or 
 animal has much puzzled lawyers, and the conjecture is probably 
 true that the real origin of this feature of noxal actions was the 
 right of private vengeance, which was recognized extensively in 
 all bodies of ancient law. The origin of the liability appears to 
 have been this — If an injury were done by a slave, the person 
 injured had the right to exact vengeance against the slave per- 
 sonally, thus injuring the master's property ; and the master 
 or owner was consequently allowed to prevent this vengeance 
 by making compensation for the injury done. The origin of 
 the liability had, if this theory be true, nothing whatever to do 
 with negligence on the part of the master, and, consequently, 
 absence of negligence on his part was no defence to the 
 action. 
 
 The noxal actions occupied a prominent position in Roman 
 jurisprudence, but the later Roman jurists were as ignorant of 
 their true origin as English lawyers formerly were, and dealt 
 
6 Introductory . [lect. i. 
 
 with the right of surrender {noxce deditio) as if it were a limita- 
 tion of liability, instead of being the original basis of the 
 action (a). The duty of surrendering the criminal was the 
 earliest obligation. As a substitute for this the master was 
 allowed to pay damages. 
 
 There is very little doubt that the origin of the master's 
 liability in our own law was exactly the same. The same right 
 of surrender is mentioned in some of the older authorities as an 
 alternative to liability in the case of injuries done by animals. 
 In Fitzherbert's " Abridgment " it is stated to be law, that if a 
 dog kill sheep, the owner of the dog can free himself from 
 liability by giving up the dog to the owner of the sheep. This 
 exactly corresponds with the noxce deditio of the Roman Law ; 
 and when we go back still further, we find the duty of surrender 
 stated to be the primary liability. By the laws of Ina, it is pro- 
 vided that " if a Wessex man slay an Englishman, then shall 
 he who owns him deliver him up to the lord of the kindred, 
 or give 60 shillings for his life." How the principle came to be 
 extended to the case of a hired servant it is difficult now to 
 ascertain, but in all probability the origin of the liability was 
 forgotten before slavery ceased to exist. This was undoubtedly 
 so in the Roman Law. 
 
 The main defect of the analytical method is not, however, 
 in the application of principles. It lies deeper, in that this 
 method completely misinterprets the facts of ancient law. A 
 law, according to the theory of Austin, consists of a command 
 by a political superior to his subjects, the obedience to which is 
 enforced by a punishment or penalty. As a matter of histo- 
 rical fact, however, ancient laws were not commands. They 
 were not issued by political superiors, nor were they enforced 
 by punishment or otherwise. They were merely customs, sanc- 
 tioned by usage, voluntarily observed, with that strong devotion 
 to usage which always characterizes uncivilized nations. " It is 
 
 (a) See on tliis question, Holmes's Common Laic, p. 9. Moyle, Inst. Just., 
 4, 8, 1 (note). 
 
lect. i.] Primitive Custom as to Crimes. 7 
 
 not," as Mr. Justice Stephen truly remarks, " till a very late 
 stage of its history that law is regarded as a series of commands 
 issued by the sovereign power of the State." (a) Law origi- 
 nated before any sovereign authority existed ; and in England, 
 at least, the king, even when he came to be recognized as in 
 reality the sovereign authority, was in no sense superior to the 
 law. 
 
 It is a matter of very great interest to ascertain, historically, 
 the origin of Penal Law, and to trace the growth of ideas of 
 crime in different legal systems. In order to do so, we must 
 carefully note the points of agreement and difference between 
 various systems, according to the differing political circum- 
 stances of each nation. The pursuit of the historical method 
 always requires extreme caution. In the study of law, histori- 
 cally, there are, as Mr. 0. W. Holmes says, two errors equally 
 to be avoided : " one is that of supposing, because an idea seems 
 very familiar and natural to us, that it has always been so. 
 Many things which we take for granted have had to be labo- 
 riously fought out or thought out in past times. The other 
 mistake is the opposite one of asking too much of history. 
 We start with man fully grown. It may be assumed that 
 the earliest barbarian, whose practices are to be considered, 
 had a good many of the same feelings and passions as our- 
 selves." (b) 
 
 If we select, for purposes of comparison, systems of law as 
 widely apart from each other as possible; and if we find the 
 same principle or the same practice prevailing in- different 
 communities, far removed from each other geographically, and 
 unconnected with each other ethnologically, we may safely con- 
 clude that the common principle is one which takes its origin 
 in human nature itself. The systems of Penal Law with 
 which I propose to deal at present are the Brehon Laws of 
 Ancient Ireland, the Hebrew Laws as exhibited to us in the 
 Old Testament, the Mohammedan Law, the Roman Law, and 
 
 [a) Digest of Criminal Law, Introduction, p. xi. (}) Common Law, p. 2. 
 
8 Introductory. [lect. i. 
 
 the Anglo-Saxon and Early English Laws. These different 
 systems, representing, as they do, the different branches 
 of the Aryan race, and also the two most important of the 
 Semitic, exhibit, as a matter of fact, upon investigation, a 
 striking similarity in the manner in which the rules upon 
 the subject of crimes and punishments developed themselves 
 in each. 
 
 The earliest view which we obtain of political society shows 
 us in each case the same system prevailing for the redress of 
 wrongs and punishment of offences, namely, a system of 
 private revenge and personal redress of injuries. Each person 
 avenged, in whatever manner he thought right, a wrong done 
 him by another, and the customs of the tribe sanctioned his 
 doing so with impunity. The idea of retaliation is one deeply 
 rooted in man's nature. A savage or a child naturally revenges 
 an injury by inflicting a similar one on the aggressor. Retribu- 
 tion in kind is viewed, even in civilized societies, with satisfac- 
 tion. An eye for an eye, a tooth for a tooth ; whoso sheddeth 
 man's blood, by man shall his blood be shed — such is the rule 
 in all early societies. As Mr. Moyle, in speaking of the Roman 
 Law, well says: "A system of self-redress, in the form of 
 private vengeance, preceded everywhere the establishment of 
 a regular judicature ; the injured person, with his kinsmen or 
 dependants, made a foray against the wrongdoer, and swept 
 away his cattle, and with them perhaps his wife and children, 
 or he threatened him with supernatural penalties by ' fasting ' 
 upon him, as in the East even at the present day ; or, finally, he 
 reduced his adversary to servitude, or took his life." («) There 
 are only slight traces of this system of self-redress in the 
 Roman Law of the time of Gaius and Justinian. Still there 
 are sufficient to prove, conclusively, that the early history of Law 
 was the same in Rome as elsewhere. When we apply ourselves 
 to other systems of law which, from various causes, did not 
 develop in the same manner as the Roman Law did — such, for 
 
 (a) Justinian Lists., Ed. Moyle, vol. i., p. 614. 
 
lect. i.] Primitive Custom as to Crimes. 9 
 
 instance, as the Brehon Laws of Ireland, and the legal systems 
 of Semitio nations — we find the system of private retaliation in 
 full vigour, even in the most highly developed stage to which 
 the law ever attained. There can be no doubt, also, that the primi- 
 tive history of English Criminal Law was in this respect exactly 
 the same. " The fact," says Mr. Justice Stephen, " that private 
 vengeance of the person wronged by a crime was the principal 
 source to which men trusted for the administration of criminal 
 justice in early times, is one of the most characteristic circum- 
 stances connected with English Criminal Law, and has had much 
 to do with the development of what may, perhaps, be regarded 
 as its principal distinctive peculiarity, namely, the degree to 
 which a criminal trial resembles a private litigation {Mist, of 
 Criminal Law, i. 245). The development of both the English 
 and Roman systems has, in a great measure, obliterated the traces 
 of this system of primitive retaliation; and it is difficult to trace 
 in them the various steps of the progress to a mature system 
 of law. It is here that we invoke the aid of the other systems 
 of law which I have mentioned. The Brehon Laws, arrested 
 in their growth, at an early stage of legal development, by the 
 unfortunate history of Ireland, throw a flood of light upon the 
 early history of Penal Law, and supply us with the missing link 
 of legal history. They exhibit to us, flourishing in full vigour, 
 institutions and methods of procedure, of which only very 
 slight traces remain in the Eoman Law, and the very remem- 
 brance of which has been almost entirely lost in our own more 
 perfect system of Criminal Law. 
 
 The primitive method for the redress of wrongs was, as I 
 have said, simple retaliation upon the person of the wrong- 
 doer. At this stage of human progress, Law, in any sense in 
 which we use the term, cannot be said to have existed. It 
 would be absurd to call savage retaliation Law ; still this system 
 of retaliation is the germ from which Penal Law has gradually 
 developed itself ; and we can, by comparing the laws of different 
 nations at different periods of their development, actually trace 
 the stages by which the practice of retaliation became trans- 
 
10 Introductory. [lect. i. 
 
 formed into a regular system of Criminal Law. The first stage 
 in this progress was the growth of a custom for the injured 
 person to accept some pecuniary satisfaction in lieu of his right 
 of vengeance. The wrongdoer might thus buy off the revenge 
 which he dreaded, if he chose to do so. This was, at first, a 
 purely voluntary matter on both sides. There was no compul- 
 sion whatsoever. It lay entirely in the discretion of the inj ured 
 person whether he would accept pecuniary satisfaction or wreak 
 his vengeance on the wrongdoer. And the latter, if he were 
 strong enough, could safely defy his enemy, and refuse to 
 give any satisfaction. It was altogether a matter of private 
 bargaining ; the injured man, according to his power, and 
 according to the fierceness of his anger, exacting whatever sum 
 he could from the wrongdoer. Gradually, however, a regular 
 scale of payment was established — at first, for slight injuries, 
 and then, afterwards, for more serious offences. Custom has 
 enormous force among uncivilized nations. Men, naturally, 
 and without any constraint, were satisfied to accept the same 
 compensation as others in similar positions had been content 
 with. Still there was no compulsion — no constraint whatso- 
 ever — and no intervention of any judicial authority. 
 
 It must not be forgotten that the right of personal revenge 
 was also in many cases a duty. A man was bound by all the 
 force of religion and custom to avenge the death of his kinsman. 
 This duty was by universal practice imposed upon the nearest 
 male relative — the avenger of blood, as he is called in the 
 Scripture accounts. Among most nations, murder, like any 
 other offence, could be compounded for between the wrong- 
 doer and the nearest relative of the slain. We never hear of 
 the death fine in historical times in Greece, but in Homer it is 
 referred to more than once. Thus, in the 9th Book of the 
 Iliad, Ajax, in reproaching Achilles for not accepting the offer 
 of reparation made to him by Agamemnon, reminds him that 
 even a brother's death may be appeased by a pecuniary fine, 
 and that the murderer, having paid the fine, may remain at 
 home among his own people free. One of the scenes said to 
 
lect. I.] Primitive Custom as to Crimes. 1 1 
 
 have been depicted on the shield of Aohilles is a dispute about 
 a death fine. Among the ancient Germans the custom prevailed 
 universally. Tacitus tells us that atonement was made for 
 homicide by a certain number of cattle, and that by that means 
 the whole family was appeased. By the Lex Salica the fine 
 was paid in money, and varied according to the rank, sex, and 
 age of the murdered person, (a) The early English laws were 
 based on the same principle : the fine for homicide is constantly 
 referred to in the Laws of Edgar and Athelstan. In Sweden 
 the death fine was also recognized by the name kinlote, as a 
 compensation for homicide. In the Roman Law there is no 
 trace of it, so far as I am aware ; but the provision of the 
 Twelve Tables regarding homicide has not been preserved to 
 us ; and it is only from an incidental reference, many centuries 
 later, that we learn that death was the penalty imposed for the 
 crime. It is possible that, as in the case of lesser injuries, 
 primitive Roman Law allowed a murderer to compound for his 
 offence by a money payment ; but it is more probable, I think, 
 that the law regarded the life of a Roman citizen as too sacred 
 to be atoned for by money payment. Among Semitic nations 
 the death fine was very general, and it continued to prevail in 
 the Turkish Empire down to our own day ; but the acceptance 
 of a death penalty was distinctly forbidden to the Jews by the 
 Mosaic legislation. The life of a man was considered too sacred 
 to be atoned for by money, (b) Religious influence had much 
 to do everywhere, as we shall see, with the development of 
 Criminal Law. 
 
 The death fine was, of course, a most important matter in 
 cases where it was permitted to be paid and received, and it is 
 in reference to it that a dispute would naturally arise : firstly, 
 because its amount would necessarily be larger than that for 
 lesser injuries ; and, secondly, because the acceptance of too 
 small a fine would naturally be looked upon as an evasion of 
 his duty by the avenger of blood. The latter might accept a 
 
 (a) See Lex Salica, edited by Hessels & Kerr. Titles 14, 24, 35, 41-45. 
 
 (b) See Numbers xxxy. 31. 
 
12 Introductory. [lect. i. 
 
 fine, but he could not, without disgrace, accept any small com- 
 pensation for the death of his kinsman. 
 
 The first germ of any judicial proceeding is to be found 
 in the settlement of the amount of these fines by the tribal 
 assembly, which was held periodically among most primitive 
 nations. Each party would naturally appeal to it, and pro- 
 bably in early times its principal work was the settlement of 
 such disputes. At first the settlement was only suggested, 
 neither party being bound by the decision ; and it was not, 
 apparently, for a very long period that any attempt was made 
 to enforce decrees- as to the amount of the fines. Where both 
 parties were willing to refer the matter to the assembly, the 
 decision of the latter was of course binding, and gradually it 
 came to be usual and customary to do so. 
 
 We have, in English Law, very little trace of such a system 
 as that which I have endeavoured to describe, but the Brehon 
 Laws give us an exact picture of this state of society ; and there 
 can be little doubt that it preceded, everywhere, the establish- 
 ment of a regular judicial system. 
 
 In fixing the amount of the fine to be paid, the Tribal 
 Assembly would naturally pay attention to the likelihood of 
 the injured person being satisfied with its decision. Thus the 
 feelings of the aggrieved party, rather than the moral guilt of 
 the offender, or even the amount of damage inflicted, was the 
 primary matter which regulated the amount of the fine. At 
 a later period, when law was fully developed, and the decisions 
 of courts of justice regularly enforced, traces of this system 
 remained in the rules regarding the penalty for different 
 offences. The curious rule by which, according to Roman 
 Law, a theft detected in the act was punished by a fine of 
 twice the amount of that inflicted for a theft not so detected, 
 is undoubtedly to be traced to this source. " The reason," 
 says Mr. Poste, " why furtum manifestum was subjected to a 
 heavier penalty than furtum nee manifestum, was not because 
 the barbarous legislator supposed that detection in the act was 
 an aggravation of the offence, but because he wished, by the 
 
lect. i.] Primitive Custom as to Grimes. 13 
 
 amplitude of the legal remedy offered, to induce the aggrieved 
 party not to take the law into his own hands and inflict 
 summary vengeance on the offender." (a) 
 
 The Roman Law only exhibits, incidentally as it were, 
 traces of the existence of such customs ; but the Brehon Laws 
 exhibit the system in full operation. The Booh of Aid 11 
 mentions with great detail the various circumstances which 
 are to be taken into account in fixing the amount of fines ; 
 and instances are recorded where injured persons refused, for 
 various reasons, to accept the amount fixed. 
 
 How then did this purely voluntary system become trans- 
 formed into a regularly enforced code of Penal Law ? There 
 can be little doubt that the enforced payment of the fines was 
 a matter of gradual development. The Brehon Law tracts, 
 for instance, contain no provision whatsoever for the enforce- 
 ment of the fines, so that we are much puzzled to know what 
 obligation there was on anyone to pay. We may conjecture 
 that when first tribal assemblies or kings began to decide 
 disputes authoritatively, they gave (if the wrongdoer were 
 present) such assistance as was necessary to the complainant in 
 exacting the punishment imposed. If the wrongdoer did not 
 attend, there was, so far as we can learn, no means of com- 
 pelling him to do so ; but the principle of retaliation was again 
 invoked here. He who refused to obey the law was deprived 
 of its benefits. If any man refused to pay the fine imposed 
 upon him by law for any offence, he was declared henceforth 
 incapable of recovering fines for offences against himself. In 
 other words, he was outlawed. There can be little doubt that 
 outlawry was the first punishment imposed by society. The 
 more archaic a body of law is the more minute are its pro- 
 visions regarding outlawry. Such is the conclusion at which 
 Sir H. Maine arrives : — " The earliest penalty for disobedience 
 to the court was probably outlawry. The man who would not 
 abide by its sentence went out of the law. If he were killed, 
 
 (a) Poste's Gaius, p. 460, 
 
14 Introductory. [lect. i. 
 
 his kinsmen were forbidden, or were deterred by all the force 
 of primitive opinion, from taking that vengeance which other- 
 wise would have been their duty and their right." (a) The 
 introduction of the system of outlawry is extremely important 
 in that it marks the real origin of Criminal Law. In ancient 
 law there is no such thing as a crime. The word crimen (con- 
 nected with the Greek Kpivuv) is of comparatively modern 
 origin in Roman Law, and necessarily implies a judicial 
 proceeding of some kind. 
 
 Criminal Law, as distinct from Penal Law, involves some 
 element of public condemnation — such was a sentence of 
 outlawry. The right of vengeance, or the penalty paid and 
 accepted in lieu of it, is a matter more of private than of public 
 law. The term " poena " does not, like " crimen," involve 
 anything of a public nature. " There can be little doubt that 
 the term 'pcena ' originally meant not so much penalty as 
 composition for injury ; the earliest pcence were sums in con- 
 sideration of which the injured person consented to forego his 
 customary right of self-redress, and the penal sums recovered 
 by the plaintiff in a Roman action on delict attest the nature 
 of the practice, though in them the ' penalty ' is usually fixed 
 by the State, and not by the parties." (b) 
 
 The prototype of a modern criminal trial appears in the 
 solemn proclamation at the tribe meeting, after full inquiry 
 of the sentence of outlawry. In Iceland the sentence was 
 pronounced at the Althing by the Law man. In the Saga of 
 Grisli the outlaw, (c) we have an account of the manner in 
 which sentence of outlawry was passed in that country. Grisli 
 in a quarrel had slain his opponent. He flies, and is pursued 
 by Bork the Stout, brother of the slain man. " The next 
 thing that happens is that Grisli sends word to his brothers- 
 in-law, Helgi, and Sigurd, and Vestgen, to go to the Thing 
 
 (a) See Ms chapter on "The King in his relation to early civil justice," in 
 Early Law and Custom, pp. 170-174. 
 
 (6) Movie, Insls. of Justinian, vol. i., p. 616. 
 
 (c) " The Story of Gisli the Outlaw." Ed. by Sir G. Dasent. 
 
lect. i.] Primitive Custom as to Crimes. 15 
 
 {i.e. local assembly held periodically) and offer an atonement 
 for him that he might not be outlawed. So they set off 
 for the Thing, the sons of Bjartmar, and could bring nothing 
 to pass about the atonement ; and men go so far as to say that 
 they behaved very ill, so that they almost burst out into tears 
 ere the suit was over. They were then very young; and 
 Bork the Stout was so very wroth they could do nothing with 
 him." In England it was, under the old law, necessary that 
 a man should be solemnly called at four county courts (a) 
 before the sentence of outlawry could be pronounced against 
 him. In theory outlawry still exists in our law, though it 
 has long since become obsolete in practice. 
 
 Such is a slight sketch of the manner in which Criminal or 
 Penal Law appears to have originated in all legal systems. 
 When we pass this initial stage we find that laws developed 
 themselves differently in different countries, according to 
 differing circumstances of government, occupation, and tem- 
 perament of the people. Different acts became crimes under 
 different systems, but the general principle which underlay all 
 was the principle of revenge. Those acts have everywhere 
 come to be regarded as crimes which in early times tended 
 to provoke vengeance or retaliation. The judicial authority, 
 either the king or tribal assembly, at first regulated the manner 
 in which this vengeance was to be enforced, and the terms upon 
 which it might be commuted. Individuals were constrained to 
 obey by sentences of outlawry. Gradually, then, partly in 
 order to repress disorder, and partly in consequence of the 
 disappearance, for various reasons, of the system of pecuniary 
 fines, a regular system of Criminal Law came into existence ; 
 the same acts being punished as offences as were formerly 
 liable to fine or personal revenge. We thus see how completely 
 different the early development of Criminal Law, as a matter 
 of fact, was, from what, according to the principles of analytical 
 jurisprudence, we might naturally suppose it to have been. 
 
 (a) The County Courts were, in all probability, a survival, among the Anglo- 
 Saxons, of the periodical tribal assembly of the Teutonic nations. 
 
16 Introductory. [lect. i. 
 
 If there be any portion of the law which, according to our 
 modern notions, corresponds to the Anstinian theory, it is the 
 Criminal Law. There is no other branch of law where the 
 command or prohibition is so distinct, or where the existence 
 of the sanction so clearly appears ; yet we find that Criminal 
 Law originated, not in any command at all, but in the custom 
 of retaliation, at a time when there was no such thing in 
 existence as a sovereign body to issue a command, and no 
 means of enforcing one were it issued. 
 
LECTURE II. 
 
 ANCIENT IEISH LAW. 
 
 rpHE most instructive source which we possess for the study 
 -*- of ancient criminal jurisprudence is the Brehon Law of 
 Ancient Ireland. " The very causes," as Sir Henry Maine 
 says, "which have denied a modern history to the Brehon Law 
 have given it a special interest of its own in our day through 
 the arrest of its development." (a) The various compilations 
 of Law are also valuable as the best source for the study of the 
 early history of Ireland. Irishmen, however, almost alone of 
 all nations of the earth, consider their national history unworthy 
 of study. Consequently, little or no interest is taken in the 
 Law Tracts from an historical point of view, while their value 
 in reference to the study of comparative jurisprudence has been 
 only recently recognised. " The Brehon Law," as Dr. Richey 
 states, in the Preface to the third volume of the Law Tracts, 
 " exhibits more completely than any other code the ideas of an 
 early society, as to the whole body of acts included under the 
 name of crimes and torts." Consequently, a study of primitive 
 penal law will naturally begin with it. 
 
 The antiquity of a system of law in one sense of the word 
 does not at all depend upon its date. The English Law of 
 Alfred is ancient ; while the Roman Law of Justinian, which 
 was some centuries prior to it in time, is extremely modern. 
 
 (a) JEm-ly History of Institutions, Pref. p. viii. 
 C 
 
18 Ancient Irish Law. [lect. ii. 
 
 The Irish Law, though much of it was written as late as the 
 twelfth or thirteenth century, is extremely ancient; and the 
 most archaic principles prevailed in it centuries after they had 
 disappeared elsewhere. 
 
 The Irish had undoubtedly attained to a very considerable 
 degree of civilization between the sixth and the eleventh centu- 
 ries, and the study of law seems to have been very popular 
 among them. Of the books mentioned in Cormac's Glossary, 
 a work of the ninth century, all, with two exceptions, are law 
 treatises. The Senchus Mor and the Book of Aicill are the 
 chief authorities on law which have come down to us. The 
 Introduction to the former states that it was completed nine 
 years after the coming of St. Patrick into Ireland — that is about 
 the year 441 a. d. ; — and though Sir Henry Maine is sceptical as 
 to its being of such an early date, the authority of almost all 
 Irish Scholars, including the translators, is against him, while 
 from internal evidence there can be little doubt that it was 
 composed, at any rate, very little later. A considerable portion 
 of the text has been found to be in verse, which clearly points 
 to an origin anterior to writing, the versification being evidently 
 intended to assist the memory. 
 
 The Senchus Mor was, according to the account given in 
 the introduction, composed in the time of Laeghaire, son of 
 Niall, King of Erin, when Theodosius was Monarch {m\\v ^15) 
 of the world. The occasion of its being compiled is thus stated : — 
 "Laeghaire ordered his people to kill a man of Patrick's 
 people ; and Laeghaire agreed to give his own award to the 
 person who should kill the man, that he might discover whether 
 he might grant forgiveness for it." Nuada Derg, brother of 
 Laeghaire, then slew Odhran, Patrick's charioteer. Patrick 
 referred the matter "to the judgment of the royal poet of the 
 Island of Erin, viz. Dubhthach Mac na Lugair," who pro- 
 nounced judgment of death. " It is evil to kill by a foul deed ; 
 I pronounce the judgment of death, of death for his crime to 
 every one who kills" ; but although Nuada was executed Patrick 
 obtained heaven for him. 
 
lect. II.] Ancient Irish Lata. 19 
 
 " What is understood from the above decision which God 
 revealed to Patrick," says the commentator, " is that it was a 
 middle course between forgiveness and retaliation : for retalia- 
 tion prevailed in Erin before Patrick, and Patrick brought 
 forgiveness with him, i. e. Nuada was put to death for his 
 crime, and Patrick obtained heaven for him. But there is 
 forgiveness in that sentence, and there is also retaliation. At 
 this day we keep between forgiveness and retaliation, for as at 
 present no one has the power of bestowing heaven, as Patrick 
 had that day, so no one is put to death for his intentional 
 crimes as long as Erie fine is obtained ; and whenever ' Eric 
 fine' is not obtained he is put to death for his intentional 
 crimes, and placed on the sea for his ignorant crimes and un- 
 lawful obstructions." 
 
 After this judgment, Laeghaire decides that all the laws 
 should be settled and arranged in accordance with the spirit 
 of the new religion. " It was then Dubhthaoh was ordered 
 to exhibit the judgments and all the poetry of Erin, and every 
 law which prevailed among the men of Erin, through the law 
 of nature, and the law of the seers, and in the judgments of the 
 island of Erin and in the poets," and' " what did not clash with 
 the Word of Grod in the written law and in the New Testament, 
 and with the consciences of the believers, was confirmed in the 
 laws of the Brehons by Patrick and by the ecclesiastics and the 
 chieftains of Erin ; for the law of nature had been quite right, 
 except the faith and its obligations, and the harmony of the 
 Church and the people. And this is the- Senchus Mor." 
 
 Two points are especially to be noted in this account. Iu 
 the first place, it distinctly recognises retaliation as the origin 
 of penal law; and, in the second place, it identifies law with 
 poetry, in a manner which appears extremely curious to the 
 modern reader. The leading authority in legal matters is the 
 Royal Poet, who exhibited the judgments "and all the poetry 
 of Erin " to Patrick. This leads us at once to the conclusion 
 that the work was originally compiled at a time when writing 
 was unknown ; and the extremely archaic character of the law 
 
 c2 
 
20 Ancient Irish Law. [lect. n. 
 
 in other respects confirms this view. There can be no doubt, 
 indeed, that at whatever date the Senchus Mor was actually- 
 compiled, the contents of it had been handed down from a very- 
 remote period. There is no mention of coined money through- 
 out the work ; the measure of value is a " cumhal," which 
 originally meant a female slave, and then her value, wbich was 
 considered to be equivalent to that of three cows. Kinship is 
 the basis of society. The land is chiefly owned in common, 
 although separate ownership is not unknown. The family, 
 and even the tribe, are responsible for the crimes of individuals ; 
 and all crimes are commuted by a money payment. The 
 strangest thing of all about the Senchus Mor, as well as the 
 other Law Tracts, is that, side by side with the most archaic 
 principles, we find extremely modern doctrines on some sub- 
 jects, the latter, in all probability, having been adopted from 
 the Roman Law, and introduced at a later period as glosses to 
 the original MSS. Minute regulations, for instance, are laid 
 down as to contracts ; and the provisions regarding fraud remind 
 us forcibly of the very elastic except io doli maU of the Poman 
 system. On the whole, however, the laws were just and equi- 
 table ; hence the desire frequently shown by Norman or 
 English settlers to adopt them — a tendency which it took all the 
 energies of the Parliament of the Pale to counteract and repress. 
 
 The Senehus Mor became the leading authority on law 
 throughout Ireland, and continued to be such as long as the 
 Lish tribes retained their independence. Its authority did 
 not completely cease until the seventeenth century. During 
 all this period, of probably 1000 years, the law underwent 
 little or no alteration. Yarious causes produced this result, 
 the chief one being the unsettled condition of Ireland, and the 
 absence of any strong central authority to alter or develop the 
 legal system. Hence the extremely archaio character of the 
 law, even in its latest development, and the interest which 
 consequently attaches to it at the present day. 
 
 Anyone who is familiar with the history of Ireland will 
 have little difficulty in explaining how it was that the law 
 
lect. II.] Ancient Irish Law. 21 
 
 remained unchanged for such a long period. A strong central 
 authority is the chief requisite for the development of a legal 
 system, and such did not exist in Ireland at any time after the 
 tenth century. The Danes destroyed the central monarchy 
 which was creeping into existence at that time. Then the 
 Normans came under Strongbow, backed up by Henry II. 
 of England. They never completely subdued the country, 
 but they were far too strong to be driven out. And, as Mr. 
 Lecky so well expresses it, " the hostile power planted in 
 the heart of the nation destroyed all possibility of central 
 government, while it was itself incapable of fulfilling that 
 function." (a) The absence of any authority to enforce or 
 amend the law prevented its internal development,, while foreign 
 influence was in a great measure excluded by the intense hatred 
 of the invaders, and the strong disinclination to adopt any of 
 their institutions. Not a trace of English law is to be found in 
 any of the Law Tracts. 
 
 The Book of Aieill, the second in importance of the Law 
 Tracts, is taken up with that branch of law which we now call 
 Criminal Law. But in the Ancient Irish Law there was no 
 distinction between civil and criminal law, or rather, it would 
 be more exact to say, there was no such thing as criminal law 
 in existence. Self-redress was the one and only remedy 
 recognised. All proceedings, whether for a crime, a tort, or a 
 breach of contract, were identical in origin, and prosecuted in 
 the same manner, namely, by levying a distress. 
 
 The learned editors of the Law Tracts, in the Introduction 
 to the Book of Aieill, shortly summarize the principles of the 
 law which it contains as follows : — " The features of early law 
 in criminal matters, which come out with peculiar clearness in 
 the Brehon Law Tracts, and especially in the present work, 
 may be summed up as follows : — 
 
 " (1) The entire absence of any legislative or judicial power ; 
 from which it follows — 
 
 (a) History of England in the Eighteenth Century, vol ii. p. 93. 
 
22 Ancient Irish Law. [lect. ii. 
 
 "(2) That the law is purely customary, and theoretically 
 incapable of alteration ; and 
 
 " (3) That all judicial authority is purely consensual, and 
 the judgments are merely awards founded upon a submission 
 to arbitration, whose only sanction is public opinion ; 
 
 " (4) That all the acts denned by us as crimes are classed 
 as torts ; and 
 
 " (5) That the form which all judgments assumed is an 
 assessment of damages." («) 
 
 All offences from murder or intentional homicide to the 
 most trifling theft or insult were, under the Brehon Law, the 
 subject of pecuniary compensation only. The offender, if he 
 paid the stipulated sum, was entirely free from any punishment. 
 If he was unable or unwilling to pay, the injured person might 
 either levy a distress on his goods, or upon those of his near 
 relatives, or exact vengeance in whatever way he thought right. 
 The Eric fine, as it was called, forms the most prominent, and 
 to the modern student by far the most interesting, feature of 
 the Laws. The rules for calculating its amount were extremely 
 complicated, and a great portion of the Law Tracts is taken up in 
 discussing them. The proportions are most minutely laid down 
 in which relatives of the offender were bound to pay, in case of 
 the latter making default ; the primitive idea of the responsi- 
 bility of the tribe for the acts of its members being recognised 
 generally throughout the laws. 
 
 The amount of the fine varied, partly according to the rank 
 of the person injured, partly according to that of the offender, 
 and partly according to the nature of the act. A double fine was 
 due for homicide, where anger was shown, ;'. e. where probably 
 there was what we would call " malice " ; but even for an acci- 
 dental or unintentional homicide, an Eric fine was imposed. 
 Exemption from liability for an accidental injury is entirely a 
 modern idea. All bodies of ancient law punish unintentional 
 as well as intentional offences. Even in our own Criminal Law, 
 
 [a) Translator's Introduction to the Book of Aicill, p. Isxsix. 
 
lect. ii.] Ancient Irish Law. 23 
 
 what we now call excusable homicide was not entirely free from 
 punishment until a very recent date. 
 
 The amount of the Eric fines varied, as I have said, accord- 
 ing to the rank of the person killed ; being highest in the case 
 of a chief or a bishop, and next in the case of a poet. It was 
 paid to the relatives of the deceased person in the proportion in 
 which they were entitled to inherit his property. Different 
 names are used in the laws for the fines, and there is some 
 confusion as to the mode of calculating the amount. The 
 terms cotfip-oijie (coirpdire), ein&cl/ynn (enachlan), and eipc 
 (eric), are used indiscriminately. The ein&ct&nn or "honour- 
 price," as it is translated, was the price at which a man's life 
 was assessed. Whether it was equivalent to the eijuc, or was 
 a separate payment, it is impossible to say. The amount of 
 the honour-price depended on either wealth, family, or profes- 
 sion, and a man was allowed to elect by which it should be 
 calculated ; but having once made his election he was bound 
 by it for ever. Some passages in the Laws assume that a king 
 or chief might elect to base his honour-price on the amount of 
 his possessions. This is an extremely interesting fact, as 
 showing that the great importance of wealth is not, as is 
 generally supposed, peculiar to modern society. 
 
 The assessment of damages varying in this way beeame 
 extremely complicated. If injuries were committed by both 
 sides they could be set off against each other, so that if a feud 
 had been going on for any lengthened period between two 
 families, the legal proceedings which resulted resembled the 
 taking of an account in equity rather than a criminal trial. 
 
 The custom of punishing homicide and other crimes by a 
 fine was common to all ancient systems of law. Everywhere 
 there are traces of it ; but in general it disappeared at such an 
 early period in the development of the law, that we can learn 
 little as to the way in which it originally sprung up. In 
 Ireland, on the other hand, the law was, from various causes, 
 stereotyped in its original form, and remained unchanged 
 throughout the whole course of its history, so that this ancient 
 
21 Ancient Irish Law. [lect. ii. 
 
 custom continued to prevail here centuries after it had dis- 
 appeared elsewhere. Thus when an English Deputy, during 
 the reign of Elizabeth, informed Mac Gruire of Fermanagh that 
 he must admit a sheriff into his territory, the Irish chief replied 
 that the sheriff should he welcome, hut at the same time inquired 
 the amount of his " Eric," that in case anybody should cut off 
 his head he might levy it upon the country. To allow such a 
 serious crime as murder to be commuted by a money payment 
 was certainly an indication of barbarism, and this probably 
 contributed in a great degree to prevent the establishment 
 of order throughout the native portion of Ireland. The 
 English writers who denounced the custom of Eric fines as 
 "wicked" and "damnable," were probably unaware that a 
 similar custom originally prevailed in every country of Europe, 
 including their own. Still there is a considerable amount of 
 truth, though some exaggeration, in the remark of Davis, that 
 " the people which doth use it, must of necessity be rebelles to 
 all good government, destroy the commonwealth wherein they 
 live, and bring barbarism and desolation upon the richest and 
 most fruitful land of the world." The continuance of such a 
 custom would effectually prevent any real social progress in the 
 nation. " It cannot be doubted," as Dr. Bichey remarks, " that 
 to a persistent adherence to the idea of compensation atoning for 
 injury, and to a want of perception of the criminality of any 
 act, much of the disorder and lawlessness apparently inherent 
 in the Irish Celtic tribes must be attributed." (a) 
 
 The fine for homicide being thus suoh a very archaic insti- 
 tution, if we could ascertain the way in which it originated we 
 would probably learn the origin of law itself. The account 
 given of the Eric fine in the Brehon Laws, and the references to 
 it in the historical tales of the Ancient Irish, materially assist 
 us in this inquiry. The origin of law is stated by Sir Henry 
 Maine to have been in all cases a voluntary submission to arbi- 
 tration. This theory is based upon the forms of the legis actio 
 sacrament i of the Romans, as described by Gaius, and has been 
 (a) Introduction to Brehon Laics, vol. iii. p. 122. 
 
lect. ii.] Ancient Irish Law. 25 
 
 confirmed by many indications in other systems of law ; but the 
 Brehon Laws show us that there was a stage anterior even to 
 that of arbitration ; and this we learn, not from any indistinct in- 
 dications of it in the procedure of a more fully developed system, 
 but from contemporary references, and from the provisions of 
 the laws themselves. We stand here, it may be fairly said, on 
 the very threshold of law, and we are enabled to see how it 
 arose in a state of society where anarchy and disorder had 
 previously prevailed. The theory that the system of pecuniary 
 fines immediately succeeded the custom of mere retaliation, 
 which is considered probable by Sir Henry Maine, is com- 
 pletely confirmed by the accounts given of the Eric fines in the 
 Brehon Laws, and in the historical tales of the Ancient Irish 
 Celts. But how did the fine come to take the place of retalia- 
 tion ? This we shall see from the way in which the fine was 
 itself originally regarded. The payment is invariably treated 
 in the laws as a satisfaction to the injured party for his sur- 
 render of his right of revenge, and when the fine is not paid, 
 the right of revenge revives as of course. 
 
 In very early times the acceptance of the fine was even 
 optional ; the injured person if he preferred to revenge himself 
 on his adversary might do so freely. A story contained in the 
 Book of Lecain illustrates this stage of legal progress. It is 
 called the "Fate of the Children of Turenn," and is of very 
 ancient date, beiDg referred to in Cormac's Glossary, a work of 
 the ninth or tenth century. The father of Luga, a powerful 
 warrior, had been slain by the children of Turenn. Luga, after 
 celebrating the funeral rites, addresses his followers in the fol- 
 lowing terms : — 
 
 " Go ye now to Tara, where the King of Erin sits on his 
 throne with the Dedannans around him ; but do not make these 
 things known till I myself have told them." 
 
 " So Luga's people went straightway to Tara, as he had bade 
 them ; but of the murder of Kian they said naught. Luga 
 himself arrived some time after, and was received with great 
 honour, being put to sit high over the others at the King's 
 
26 Ancient Irish Law. [lect. ii. 
 
 side; for the fame of his mighty deeds at the battle of the 
 Assembly Plain had been noised over the whole country, and 
 had come to the ears of the King. 
 
 " After he was seated, he looked round the hall, and saw 
 the sons of Turenn in the assembly. Now these three sons of 
 Turenn exceeded all the champions in Tara, in comeliness of 
 person, in swiftness of foot, and in feats of arms ; and, next to 
 Luga himself, they were the best and bravest in the battles 
 against the Formorians ; wherefore they were honoured by the 
 King beyond most others. 
 
 " Luga asked the King that the chain of silence should be 
 shaken ; and when all were listening in silence, he stood up and 
 spoke : — 
 
 " ' I perceive ye nobles of the Dedannan race that you have 
 given me your attention, and now I have a question to put to 
 each man here present : what vengeance would you take of the 
 man who should knowingly and of design kill your father ? ' 
 
 " They were all struck with amazement on hearing this, and 
 the King of Erin said : — 
 
 " ' What does this mean ? For that your father has not 
 been killed, this we all know well ! ' 
 
 " ' My father has indeed been killed,' said Luga, ' and I see 
 now here in this hall those who slew him. And furthermore, I 
 know the manner in which they put him to death, even as they 
 know it themselves.' 
 
 " The sons of Turenn hearing all this said nothing ; but the 
 King spoke aloud and said : — ' If any man should wilfully slay 
 my father, it is not in one hour or one day I would have him 
 put to death ; but I would lop off one of his members each 
 day, till I saw him die in torment under my hands.' All the 
 nobles said the same, and the sons of Turenn in like manner. 
 
 " ' The persons who slew my father are here present, and are 
 joining with the rest in this judgment,' said Luga ; • and as the 
 Dedannans are all now here to witness, I claim that the three 
 who have done this evil deed shall pay me a fitting Eric fine 
 for my father. Should they refuse, I shall not indeed transgress 
 
lect. ii.] Ancient Irish Law. 27 
 
 the King's law, nor violate his protection ; hut of a certainty 
 they shall not leave this Hall of Mioorta till the matter is 
 settled.' 
 
 "And the King of Erin said: — ' If I had killed your father, 
 I should be well content if you were willing to accept an Eric fine 
 from me.' 
 
 " Now the sons of Turenn spoke amongst themselves, and 
 Ur and Urcar said : — ' It is of us Luga speaks this speech. He 
 has doubtless found out that we slew his father ; and it is better 
 that we now acknowledge the deed, for it will avail us naught 
 to hide it.'" 
 
 Brian, however, at first set his face against this, saying that 
 he feared Luga only wanted an acknowledgment from them in 
 presence of the other Dedannans, and that afterwards he might 
 not accept a fine. But the other two were earnest in pressing 
 him, so that he consented, and then he spoke to Luga : — 
 
 " ' It is of us thou speakest these things, Luga ; for it has 
 been said that we three have been at enmity with the three 
 sons of Canta. Now as to the slaying of thy father Kian, let 
 that matter rest ; but we are willing to pay an Eric fine for 
 him, even as if we had killed him.' 
 
 " ' I shall accept an Eric fine from you,' said Luga, ' though 
 ye indeed fear I shall not. I shall now name before this 
 assembly the fine I ask, and if you think it too much, I shiill 
 take off a part of it.' 
 
 He then names the fine, and the story proceeds, (a) 
 
 We see from this interesting anecdote that a voluntary sub- 
 mission to arbitration was not the first stage in the development 
 of law, but that there was a stage earlier even than this, 
 namely — that of an ordinary agreement or bargain between the 
 parties, settling the amount of the damages. The fine is not 
 imposed by any recognised authority. The King claims no juris- 
 diction in the matter. He does not even suggest the amount of 
 
 (a) The full tale, text and translation, is published by O'Curry in the Atlantis. 
 It is referred to in Cormac's Glossary (about a.d. 900). The whole story is con- 
 tained in the Book of Lecain (about 1416 a.d.). 
 
28 Ancient Irish Law. [lect. ii. 
 
 the fine — a matter which the parties settle between themselves. 
 One of them has suffered a wrong, and demands to be paid 
 compensation, as the price of his renouncing his right to revenge. 
 He appeals to those around to say whether what he asks is 
 fair compensation ; and they merely give their opinion, without 
 attempting to arbitrate or interfere in the matter in any way. 
 
 We are here at a much earlier stage of law than that which 
 is exhibited in the fictitious legis actio sacramenti of the Romans. 
 There is no command to the parties to desist, corresponding to 
 the mittite ambo Jiominem. The injured person merely demands 
 compensation, and it is perfectly optional with him to take it or 
 not. The primitive right to retaliation has not yet disappeared, 
 nor is there any moral or legal restraint on its exercise, provided 
 the peace or protection of another is not violated thereby. The 
 progress of the law from this beginning is not difficult to con- 
 jecture. If the parties could not agree as to the amount of the 
 damages, nothing would be more natural than that it should be 
 referred to the poet or Brehon who attended the chief of the 
 tribe, to decide. His duty was to recite the history of the tribe 
 at the various tribal gatherings, and he would consequently be 
 able to say what had been given and accepted in similar cases. 
 If either party, after having agreed to submit the matter to him, 
 refused to abide by his decision, such breach of faith would 
 naturally be severely condemned by the whole tribe, and means 
 would probably be taken to inflict punishment. In this way a 
 regular legal system would spring up. 
 
 Although in the legal action described by Gaius, the idea of law 
 has been much more fully developed than here, still we find in an 
 earlier period of the Eoman Law, a striking parallel to the Irish 
 Eric fine. The fragments of the Twelve Tables which remain 
 contain no provision regarding homicide, but the punishment for 
 bodily injuries is specified, and ancient law invariably deals with 
 these in the same way as with homicide. The words of the Eighth 
 Table are, si membrum rupit, ni cum eopacit talio esto — "Retaliation 
 against him who breaks the limb of another and does not offer 
 compensation." Now if the words talio esto mean, as I presume 
 
lect. ii.] Ancient Irish Law. 29 
 
 they may, " let the injured person retaliate," we are precisely 
 at the same stage as that which the story of the children of 
 Turenn displays to us in the Irish Law. In the ease of homicide 
 indeed we are informed by Pliny that death was the punishment 
 inflicted by the Twelve Tables ; but it is not a very extravagant 
 conjecture to assume that the talio esto was qualified in the 
 same way in this case as in the other. The law in Mahom- 
 medan countries is in general based on entirely different prin- 
 ciples from those prevailing in Europe, yet strange to say we 
 find there also an exact parallel to the Eric fine. Mr. Sale tells 
 us, in a note to the second chapter of the Koran, that it is a 
 common practice in Mahommedan countries, particularly in 
 Persia, when a man is murdered, that the relations of the 
 deceased should have their choice, either to have the murderer 
 put into their hands to be put to death, or to accept a pecuniary 
 satisfaction. Here we have a striking confirmation of the theory 
 that Penal Law originated everywhere in the system of buying 
 off revenge by the payment of a sum of money. 
 
 The close connexion between the Eric fine and private 
 revenge explains also the singular custom of levying the fine 
 on the relations of the murderer, if the latter absconded or was 
 unable to pay. Those who seek vengeance are not over-scrupu- 
 lous as to the persons upon whom they inflict it; and the 
 revenge would naturally be directed in the first instance 
 against the relatives of the wrongdoer. It is their interest 
 then to buy it off, both in order to save themselves and to 
 protect one of their number. Hence when the custom becomes 
 a law, the fine is levied not alone upon the person who is 
 morally guilty, but on his innocent relatives as well. If the 
 fine was paid, a promise was made not to further seek vengeance, 
 and the bargain was complete. In the case of an habitual 
 criminal, the family could relieve themselves from responsi- 
 bility for his acts by formally expelling him from their body. 
 Probably this was a provision introduced into the laws at a 
 somewhat late period. 
 
 The liability of the family to pay the fine for the offence of 
 
30 Ancient Irish Law. [lect. ir. 
 
 one of its members was always regarded as reciprocal to its 
 right to receive it in case such member was himself killed. 
 The law contained provisions as to priority of payment corre- 
 sponding to the rules of succession to property on death. The 
 fine was leviable in the first instance on the criminal himself, 
 then on his sons, then on his father, then on his " deirb-fine " 
 (a class of relations, the limits of which are not precisely 
 known), then, passing beyond the range of the family, on any 
 person who harboured or assisted him, and finally on the King. 
 If his relations were compelled to pay the fine they had naturally 
 the right to compensate themselves out of his property, and his 
 share in the land held in common was forfeited. The family 
 could also relieve themselves from responsibility for the acts of 
 an habitual criminal, by formally expelling him from their body, 
 and paying a fine to the King and certain other persons, as a 
 composition for any future crimes he might commit. 
 
 The custom of levying the fine upon the whole tribe to 
 which the murderer belongs is, as I have said, easily explained 
 on the principle of retaliation. In a tribal society, an injury 
 inflicted by one member of a tribe on a stranger naturally 
 brings down vengeance on the whole tribe to which he belongs. 
 There is no such responsibility, however, for the acts of a 
 stranger living under the protection of the tribe, provided he is 
 given up to the vengeance of those whom he has injured. We 
 have an account in the Senchus Mor (Introduction, p. 71) of 
 a " Leading Case" on this point. A chief, driven from his own 
 country for his depredations, took refuge with Fergus, King of 
 Uladh, who received him under his protection. After awhile 
 he set out " to go to his own tribe to demand justice from 
 them, but was met and killed by five members of the tribe, 
 one of whom was the son of a stranger." Fergus went with 
 forces from the North to demand satisfaction, and justice was 
 dceed to him, /. e. three times seven cumhals [a] — seven cumhals 
 
 (a) A "cumhal" was the value of a female slave, generally considered to be 
 equivalent to three oxen. 
 
leut. ii.] Ancient Irish Law. 31 
 
 of gold, and seven of silver, and land of seven cumhals for the 
 crime of the five natives ; and Dora, the daughter of Buidhe, 
 was given as a pledge for the crime of her son, for he was the 
 son of a stranger, and was begotten against the wish of, or 
 without the knowledge of, the tribe of the mother, (a) After 
 this Fergus made a perfect covenant respecting this Eric fine, 
 and returned to his own country, having his bondmaid with 
 him in bondage. 
 
 The liability of the tribe appears from this case to have been 
 strictly confined to its own members. For strangers there was 
 no responsibility, if they were deprived of protection after they 
 committed an offence, and given up for punishment. The 
 noxce deditio of the Roman Law is here very forcibly suggested 
 to us. 
 
 Theft was punished by fine in the same way as homicide, 
 but it was lawful to kill a thief who was unknown, if there was 
 no power of arresting him at the time of his committing the 
 offence. If he were arrested, and if he or his relations were 
 able to pay fines, they were obliged to compensate not only the 
 owner of the stolen property, but a number of other persons 
 who were considered to be injured by the offence. " The fine 
 for stealing from a house is a difficult fine," says the Book of 
 Aicill (p. 459). " A fine was due to the owner of the house for 
 violation of his precinct, to the occupant of the room from 
 which the stolen article was taken, and also a fine to seven 
 nobles or chiefs of companies who were in the habit of enjoying 
 the hospitality of the house." 
 
 In one respect the Brehon Law was extremely modern in 
 its view of crime. An attempt was considered equivalent to 
 the actual commission of the deed. This is probably one of 
 the cases in which the Irish lawyers borrowed from the Civil 
 Law " Dolus pro facto accipitur," being the rule regarding 
 
 («) A female member of the tribe marrying out of it lost all her rights, and her 
 children were regarded as strangers. The rule in the Hebrew Law was the same. 
 A daughter could not marry out of her tribe without forfeiting her inheritance. (See 
 Numb, xxxvi. 6, 7.) 
 
32 Ancient Irish Law. [lect. ii. 
 
 homicide in that system. The intention was itself a crime, and 
 punished by a separate fine, if it was clearly evidenced by an 
 overt act. Thus, if a man went to kill one person and killed 
 another by mistake, a fine for the intention was due to him 
 whom it was intended to kill, even though no injury was done 
 to him, in addition to that due to the friends of the murdered 
 man. 
 
 " The general impression," says Dr. Bichey, " produced by 
 the rules in the commentary is that the attempt to commit an act 
 was treated as equivalent to its commission, unless the results of 
 the attempt were very insignificant. Thus, if an attempt were 
 made to slay, or to inflict an injury which would endure for life, 
 and blood were shed, the fine was the same as if the attempt 
 had succeeded ; if the injury did not amount to the shedding of 
 blood the fine was reduced to one-half. If the intention were 
 to inflict any specified injury, and a different injury was 
 inflicted, a calculation was made of the total of ' a seventh 
 for intention, one-half for going to the place, and the body 
 fine for inflicting the wound,' and the plaintiff could elect 
 between the result of this calculation and the fine for the 
 wound he intended to inflict and the fine for the wound he 
 actually inflicted." (a) 
 
 The judicial functions of the King are recognised in the 
 Brehon Law as in all other systems of ancient jurisprudence. 
 A false judging King is frequently mentioned as one worthy of 
 punishment. The account given in the commencement of the 
 Book of Aicill of the composition of that work shows the 
 important position occupied by a King in judicial matters. 
 King Cormac having been accidentally wounded at Temhair 
 was obliged to abdicate his sovereignty. " It was a pro- 
 hibited thing that one with a blemish should be King at 
 Temhair. And Cormac was therefore sent out to be cured 
 to Aicill, close to Temhair ; and Temhair could be seen from 
 Aicill, but Aicill could not be seen from Temhair. And 
 
 (a) Introduction to Bool- of Aicill. p. cix. 
 
lect. ii.] Ancient Irish Law. 33 
 
 the sovereignty of Erinn was given to Coirpri Lifeoliair, son 
 of Cormac ; and in every difficult case of judgment that came 
 to him he used to go and ask his father about it; and his 
 father used to say to him, ' My son, that thou mayest know,' 
 and explain to him 'the exemptions' " («). 
 
 The King, though he could declare the law, had no power 
 to alter it. His function was merely, as chief of the tribal 
 assembly, to see that the proper customs were observed. The 
 Royal justice which under the English system gradually 
 superseded all others in criminal matters did not exist in 
 Ireland. 
 
 Curiously enough, however, we find in the Brehon Law 
 the very same germ from which Royal justice sprang in 
 England, though it never had time or opportunity to develop 
 itself in the Irish system. The violation of the King's Peace 
 was the original offence from which the jurisdiction of the 
 Sovereign in criminal matters has gradually grown in English 
 Law. Such, at least, is the opinion of one of our ablest living 
 authorities on legal matters, Sir Frederick Pollock. I take 
 the following note from his Essay on " The History of 
 English Law as a branch of Politics" : — 
 
 " The technical use of ' The King's peace ' is, I suspect, 
 connected with the very ancient rule that a breach of the peace 
 in a house must be atoned for in proportion to the householder's 
 rank. If it was in the King's dwelling, the offender's life was 
 in the King's hands. This peculiar sanctity of the King's 
 house was gradually extended to all persons who were about 
 his business, or specially under his protection ; but when the 
 Crown undertook to keep the peace everywhere, the King's 
 peace became coincident with the general peace of the king- 
 dom, and his especial protection was deemed to be extended 
 to all peaceable subjects. In substance the term marks the 
 establishment of the conception of public justice, exercised on 
 behalf of the whole commonwealth, as something apart from 
 and above the right of private vengeance — a right which the 
 
 (a) Book of J kill, Ancient Laws of Ireland, vol. iii., p. 85. 
 D 
 
34 Ancient Irish Law. [lect. II. 
 
 party offended might pursue or not, or accept compensation 
 for, as he thought fit" (a). 
 
 A similar rule prevailed under the Brehon Law protecting 
 the sanctity of a man's dwelling and the district around it, and 
 punishing by a fine any act of violence committed there hy a 
 stranger. In the case of theft; we have already seen that a 
 fine was due not only to the owner of the stolen property, but 
 also to the owner of the house in which the theft was committed, 
 for the violation of his "precinct." The householder had a 
 similar right in case any other offence was committed within 
 the prescribed limits. The Irish word (m&ijin) translated 
 " precinct," meant a portion of land lying round the house 
 of a chief or other dignitary. The territorial limits of this 
 right are minutely specified in the laws, and varied according 
 to rank. Within this " precinct " the owner of the house had 
 a right to prevent acts of violence, lest probably he or his 
 property should be injured thereby. The early English law 
 contained similar rules ; the " tun " corresponding to the 
 "maighin." Thus, by the laws of iEthelred, if one man 
 killed another within the King's tun, he should make bot, 50 
 shillings, and within an earl's tun, 12 shillings. The mode 
 in which the limit of the maighin was calculated proves its 
 object ; the smallest limit was the distance to which a spear 
 could be thrown from the door, and that for the higher ranks 
 was some multiple of this. The distance to which a spear 
 could be thrown was the natural limit to the possibility of 
 danger to the house or its occupant from the quarrel. Modern 
 international law furnishes us with an exact parallel. A mari- 
 time league from the shore of a neutral territory is considered 
 the furthest distance to which a cannon-shot can carry ; and 
 au act of war within this limit is considered a violation of the 
 rights of the neutral power in consequence of the danger to 
 which it exposes the persons and property of its subjects. This 
 is only one of the many cases in which ancient private law 
 resembles modern international law. 
 
 (a) Ebsay> on Jurisprudence and Ethics, p. 205 (note). 
 
lect. ii.] Ancient Irish Law. 35 
 
 The tract on Precincts (m&ijne), contained in the fourth 
 volume of the Ancient Laws of Ireland, lays down the follow- 
 ing rules for calculating the extent of the precinct: — " The 
 spear measures twelve fists between its iron head and the place 
 where the horn is put upon its extremity, i. e. the extremity of 
 its handle. Now, the shot of this which the bo-aire chief casts 
 as he sits in the door of his house is the extent of the inviolable 
 precinct of the bo-aire chief respecting his ' seds ; ' and the 
 'aire-desa' chief has twice this extent; and every grade from 
 that up to the king of a territory has double it, i. e. the king of 
 a territory has sixty-four shots as the extent of his inviolable 
 precinct. And it is by the ' green ' these shots are measured 
 for every inviolable precinct ; and where they are discharged 
 from is from the place where they (the parties) constantly sit. 
 
 " A King of Kings : it is he that has Kings, i. e. the King of 
 a province, and the King of Erin, and also the ' co-arb ' of 
 Patrick (a) ; as far as their ' scor ' lands (b) extend on every 
 side, that is their inviolable precinct." 
 
 The large extent of the King's precinct made every offence 
 committed within his territory an offence against him if he 
 chose so to regard it. Had the Irish sovereigns succeeded in 
 attaining to the same power and supremacy as the Anglo-Saxon 
 monarchs, a system of Royal justice would probably have 
 sprung up in Ireland as it did in England, but unfortunately 
 this never happened. 
 
 The Brehon Law appears, indeed, to have been at one time 
 on the point of attaining to the position of a code of rules 
 enforced by a sanction — not a sanction of a religious or super- 
 natural nature, as is suggested by Sir Henry Maine (c), but 
 one suggested by this very principle of retaliation, which was 
 the basis of the whole Penal Law, namely, outlawry. The 
 Brehon Law in this, as in so many other points, gives us, I 
 think, a correct illustration of the growth of law in all ancient 
 communities. The right to receive fines was always correlative 
 
 («) The Archbishop of Armagh. (b) Plain, or meadow lands. 
 
 (c) Marly History of Institutions, p. 37. 
 
 D2 
 
36 Ancient Irish Law. [lect. ii. 
 
 with the duty of paying them. The persons who were entitled 
 to receive the fine in the case of the death of any individual, 
 were those on whom the onus of paying would have fallen if that 
 individual had committed a crime himself. He who refuses, 
 however, to bear the burden is not entitled to partake of the 
 benefit of the law ; and so we find that where a crime was 
 committed, for which Eric fine was not paid, the criminal was 
 permanently deprived of his right to honour-price. This was 
 tantamount to outlawry— an exceedingly severe sentence in a 
 disturbed condition of society. The life of the criminal was 
 then at the mercy of anyone who bore enmity towards him, or 
 who had any interest in his death. " The life of every law- 
 breaker is fully forfeited," says the Book of Ale ill, " There 
 are four dignitaries of a territory," says the Senclius J for, 
 " who may be degraded : a false-judging king, a stumbling 
 bishop, a fraudulent poet, an unworthy chieftain who does not 
 fulfil his duties. Dire-fine is not due to them." 
 
 The commentary which follows this latter passage was in all 
 probability written at a much later period ; it deals not only 
 with the more serious crimes for which the whole of the honour- 
 price was forfeited at once, but also with lesser offences, on 
 account of which a part only was taken away, unless the offence 
 was repeated, thus : — 
 
 " False judgment, and false witness, and false testimony, 
 and fraudulent pledging, and false proof, and false informa- 
 tion, and false character-giving, and bad word, and bad story, 
 and lying in general, whether in the case of the Church or the 
 laity — every one of these deprives the man who is guilty of 
 such of half his honour-price up to the third time, but it does 
 not deprive him with regard to all until the third time', and it 
 takes away even this half honour-price from everyone from the 
 third time out. And he may lose this half honour-price by a 
 different person ; and he thus loses full honour-price with 
 respect to the latter person, or with respect to the person against 
 whom he had committed the first injury. Theft or eating stolen 
 food in the house of one of any grade, or having stolen food 
 
lect. ii.] Ancient Irish Law. 37 
 
 in it constantly ; and treachery, and fratricide, and secret 
 murder — each of these deprives a person of his full honour- 
 price at once." 
 
 This system of depriving persons of honour-price, either 
 wholly or partially for offences, marks a completely new epoch 
 in the law. Society now for the first time intervenes in the 
 matter. We pass at once from the era of torts to that of crimes. 
 The true difference between a tort and a crime lies in the remedy, 
 not in the nature of the act.) All injuries are offences against 
 individuals, and all more or less cause alarm and apprehension 
 amongst others, lest they should suffer in the same way. But 
 in some cases the remedy is left in the hands of the individual 
 wronged, in others the State imposes the penalty. In the first 
 case we speak of the offence as a tort ; in the latter as a crime. 
 This deprivation of honour-price was probably proclaimed at a 
 tribal meeting. There is no reference indeed, so far as I know, 
 in the Irish law to anything like a public trial ; still, some 
 passages manifestly imply it. Entire exemption from fine, for 
 instance, is allowed in the Book of Aicill to a person who kills 
 " a condemned outlaw." 
 
 Outlawry thus appears to have been the primitive punish- 
 ment as distinct from revenge imposed for crimes. The Irish 
 Law is, in this, as in other cases, a type of primitive usage 
 generally. The early English Law was similar, allowing no 
 fine or compensation to relatives in case of the murder of an 
 outlaw, " for that he resisted God's law or the King's ;" and 
 outlawry continued to be the chief punishment for crime in 
 England until long after the Conquest. A great portion of 
 Braeton's treatise, Be Corona, is taken up with the matter — 
 a fact which shows what an important position it occupied as a 
 punishment in his time. 
 
 It is only necessary to consider, for a moment, the position 
 of an outlaw in a chronically disturbed state of society in 
 order to estimate the severity of this punishment. Suppose, for 
 instance, he had been banished from his family, and that his 
 tribe had deprived him of his honour-price, and declared that 
 
38 Ancient Irish Law. . [lect. ii. 
 
 no dire-fine should be payable for his murder ; he might then 
 have been killed with impunity by any person, or any body of 
 persons who had any motive for doing so. His only chance 
 was to gain the " protection " of some powerful chief. As, 
 however, anyone who sheltered him became liable for his acts, 
 few would be willing to receive him ; and if he escaped with his 
 life, he became, practically, a slave to his protector, who was 
 entitled to Eric fine if he killed him, and liable for his acts if he 
 committed any crime. It is more than probable that the class 
 of " fuidhir " tenants, frequently referred to in the laws, was 
 composed mainly of these lawless men who had fled from other 
 tribes on account of their crimes. Their position was one of 
 great misery. They were altogether at the mercy of their 
 lords, and liable to whatever rent he might demand for any 
 land they occupied. This is the class, most probably, referred 
 to by English writers of the seventeenth century, when they 
 speak of the Irish chiefs rack-renting their tenantry, for the chief 
 had no power to impose more than a " fair rent " on a member 
 of his own tribe. 
 
 The study of the Brehon Law thus enables us to trace the 
 progress of primitive ideas as to penal legislation generally. 
 The earliest source to which we can trace back Penal Law is 
 the principle of simple retaliation — an eye for an eye, a tooth 
 for a tooth, life for life. This retaliation was not imposed, but 
 simply permitted by society. The next step is the custom of 
 buying off vengeance, either by the individual who has inflicted 
 the injury, or his tribe. A pecuniary payment thus comes to 
 be looked upon as a satisfaction for a crime. The wrong-doer 
 gains his life : the injured man something valuable, in lieu of 
 useless vengeance, his pride at the same time being appeased 
 by the submission : society is benefited by an end being put to 
 disturbance and fighting. Once the custom becomes general, 
 disputes will certainly arise as to the amount of the payment. 
 If the parties cannot come to terms both will lose ; to avoid such 
 a contingency they agree to refer it to the arbitration of the 
 person who is most likely to know what was usually the amount 
 
lect. n.] Ancient Irish Law. 39 
 
 paid in similar cases — this is the poet of the tribe, whose duty 
 it is to recite its history at the tribal meetings. The ancient 
 Irish Law expressly tells us that in former times the legal 
 jurisdiction was vested in the poets. The next step is the direct 
 intervention of the tribe itself, or its chief. The conduct of the 
 man who refuses to submit his case to arbitration is plainly 
 unreasonable. The whole tribe is interested in preserving 
 peace — his conduct imperils it — they will therefore endeavour 
 to force him to submit. The retaliative principle again recurs 
 here. If he refuses to pay fines, what more natural than to 
 refuse to allow him to recover them ? His honour-price is 
 forfeited, and thereby he at once becomes a " lawless man," 
 whom anybody may kill with impunity. The prototype of a 
 modern criminal trial then appears in the solemn proclamation 
 at the tribal meeting, by the King or chief, of this sentence of 
 outlawry. We have no direct evidence that the Brehon Law 
 ever attained to this latter stage of development — at all events 
 it never passed beyond it. 
 
LECTURE III. 
 
 LAW OF SEMITIC RACES. 
 
 I.— HEBREW LAW. 
 
 FROM the study of the Ancient Irish Law, I pass at once to 
 the consideration of another system of archaic jurisprudence, 
 which illustrates in a remarkable manner the primitive history 
 of Penal Law: namely, the Ancient Hebrew Law, as exhibited 
 to us in the Books of the Old Testament. Like the Irish Law, it 
 never developed into a regular system of criminal jurisprudence, 
 but continued throughout its history to exhibit the same features 
 of primitive usage as in its earliest origin. The non-progressive 
 character of the law is, however, due to entirely different causes 
 in the two cases. In Ireland it arose from the unsettled con- 
 dition of the country, aud the absence of a firm, settled govern- 
 ment. Among the Jews it arose from the connexion between 
 Law and Religion. Nothing so much checks the growth of 
 Law in a community as the identification of it with religion. 
 The recognition of the sacredness of rules of Law naturally 
 offers a very strong obstacle to alteration of any kind in them. 
 Nothing lias so much facilitated legal progress among European 
 nations as the fact that the religion of all of them is derived 
 from a foreign source. A native religion naturally becomes 
 identified with Law and retards progress ; but religious precepts 
 taken from a foreign source, on the other hand, by offering an 
 ideal of morality to which the law seeks to attain, assist very 
 
lkct. in.] Hebrew Law. 4 1 
 
 materially in the improvement and development of the Law. 
 The Decalogue, that " smallest, but oldest and most important 
 of all works of law," as it is called by Ewald (a), has materially 
 assisted the growth of English Criminal Law, by affording a 
 succinct and definite code of morality, which it is the true aim 
 of all law to apply and enforce. It proclaims its divine origin, 
 by the comprehensive manner in which it deals with the most 
 important of all matters to society and to the individual, the 
 observance of religion, filial piety, the protection of life> of 
 chastity, of property, and of civil security ; while the concluding 
 commandmentrwhich contains merely a general prohibition of 
 the mental state which leads to the transgression of the others, 
 binds together the moral and legal elements in one comprehen- 
 sive whole, and thus forms a fitting close to a code, so far in 
 advance of any moral or religious ideas of the time, that we are 
 constrained to acknowledge its divine origin. 
 
 Among Eastern nations, where ideas of progress scarcely 
 exist, primitive customs usually acquire the same sanctity as 
 moral and religious precepts, and thus the law, instead of being 
 assisted, is retarded in its development by the influence of 
 religion. Such was the case with the Jews. The following 
 incident, mentioned by Mr. 0. P. Ilbert, O.S.I., in an interesting 
 article on Indian Codification, recently published in the " Law 
 Quarterly Review" (vol. v., p. 367), shows the tenacity with 
 which the Jews still cling to their primeval customs. " Some 
 time in the year 1886," he says, " I received a deputation from 
 the Jews of Aden, asking that they might be exempted from 
 the operation of the Indian Succession Act (X. of 1865). That 
 Act applied to the Jews of British India, a small class of 
 persons. Aden is technically part of British India. Therefore 
 the Act applied to the Jews of Aden. But for some twenty 
 years the Jews of Aden remained in blissful ignorance of its 
 existence. At last a case raising a question of succession 
 among Aden Jews found its way into the Civil Court at Aden. 
 
 [a) History of Israel, vol. ii., p. 162. 
 
42 Law of Semitic Races. [lect. hi. 
 
 The Judge looked up his law, aud found that the Succession 
 Act regulated the case. His decision fluttered the community, 
 and they asked that they might he restored to their old law. 
 On inquiring what that law was I was referred to a passage in 
 the Book of Numbers (xxvii. 1-11), containing what may with- 
 out profanity be called the ruling in Zelophehad's case. The 
 text lays down the rule of succession to be observed when an 
 Israelite dies leaving daughters, but no son. My Aden friends 
 told me that the Jews of Yemen, including themselves, had 
 been under this law for some thousands of years, that it gave 
 them what they wanted, and that they would like to remain 
 under it. I stipulated for two conditions, first, for evidence of 
 the particular customs of the Yemen Jews, and secondly, for an 
 assurance that any exemption granted to them should not be 
 used as a precedent for granting a similar concession to the 
 Jews of India generally. The stipulations were complied with 
 by the production of evidence as to the laws and customs of 
 Yemen Jews (very curious and interesting evidence it was), 
 and by an undertaking from the leading Jews in British India 
 that they would be content to remain under Anglo-Indian law. 
 And the Jews of Aden were accordingly allowed to revert from 
 Art. X. of 1865 to the Pentateuch." 
 
 Here we have an indication of the persistence with which a 
 Semitic people adheres to its ancient customs, and we find in 
 the matter of criminal law the same characteristic of unchange- 
 ableness. The Hebrew Law exhibits to us primitive usage of 
 a similar type to that contained in the books of the Brehon 
 Law ; but the ideas of the two peoples were very different, and 
 the contrast, as well as the comparison of the two systems, 
 is most instructive. 
 
 The leading idea of the Hebrew Penal Law was the sanctity 
 of human life. That man was created in the image of God was 
 a precept of religion which was fully recognized by the Law. 
 The life of a stranger was as much protected as that of one of 
 the nation (a) . To take it away involved the same sin and the 
 
 (a) Levit. xxiv. 22. 
 
lect. in. J Hebrew Law. 43 
 
 same offence. " That the life," says Ewald, " or, to express 
 the idea in another more Hebrew word, the ' soul,' of a man 
 possesses of itself an inviolable sanctity is one of the first 
 principles which was firmly established among the nobler races 
 from the very earliest times, and in which all those presenti- 
 ments of something Infinite being implanted in man sought to 
 find the clearest expression possible " (a). 
 
 The punishment for murder among the Hebrews, as among 
 other primitive races, was Revenge. The relatives of the mur- 
 dered man were allowed to retaliate. Yengeance of blood, as 
 it was called, was always looked upon as a sacred duty with the 
 nearest relatives of the deceased. To neglect to inflict it caused 
 indelible disgrace. The Avenger of blood is the name inva- 
 riably given to the next heir of the murdered man. Sometimes 
 the whole family took the duty upon themselves, as in the story 
 of the widow of Tekoah, told in the Book of Samuel : — " And, 
 behold, the whole family is risen against thine handmaid, and 
 they said, Deliver him that smote his brother, that we may kill 
 him, for the life of his brother whom he slew " (2 Sam. xiv. 7). 
 The punishment of death for homicide was invariable : — " He 
 that smiteth a man, so that he die, shall surely be put to 
 death" (Bxod. xxi. 12). Retaliation was also enjoined or 
 permitted for lesser offences. Life for life is only the appli- 
 cation of the ordinary rule : — " If a man cause a blemish in 
 his neighbour ; as he hath done, so shall it be done to him ; 
 breach for breach, eye for eye, tooth for tooth : as he hath 
 caused a blemish in a man, so shall it be rendered unto him " 
 (Levit. xxiv. 19, 20). We are left in no doubt as to the 
 manner of execution in case of murder : — " The manslayer 
 shall surely be put to death. The avenger of blood shall 
 himself put the manslayer to death : when he meeteth him lie 
 shall be put to death " (Numb. xxxv. 18). Here we have only 
 another instance of the retaliation which is said by the Senchus 
 Mor to have existed in Ireland before the coming of Patrick. 
 
 (a) Antiquities of Israel, p. 168, 
 
44 Law of Semitic Races. [lect. hi. 
 
 There is no trace of a judicial process of any kind, before the 
 execution, in the Jewish Law. " Whenever he meeteth him he 
 shall be put to death." There was no need even to justify the 
 execution at any subsequent time before any assembly of any 
 kind. "Where death was caused the Avenger of blood was 
 always justified in retaliating. Whether the murder was pre- 
 meditated or not, the Avenger of blood had the same right of 
 inflicting summary execution. Even in case of the accidental 
 infliction of death, the unwilling slayer might be killed with 
 impunity if he did not succeed in escaping to a city of refuge 
 (Deut. xix. 6) . And even though the slayer had so escaped to 
 a city of refuge, and was there dwelling, if he left his place of 
 refuge, even for the shortest possible time, he might be slain 
 by the Avenger of blood, and the latter was guilty of no offence 
 in slaying him (Numb. xxxv. 27, 28). 
 
 Such a system was not in any way peculiar to the Hebrews. 
 It existed universally. The earliest mitigation among most 
 communities of the terrible severity of this Law was the insti- 
 tution of the death fine as a substitute for the death penalty, 
 at least in cases where the original slaying was accidental or 
 unpremeditated. This death fine was at first a composition 
 arranged between the Avenger of blood and the manslayer. 
 I have already mentioned that it was almost universal in 
 ancient law. It may possibly have existed among the Hebrews 
 at an early stage of their history, but it is distinctly forbidden 
 in the Mosaic legislation : — " Te shall take no ransom for the 
 life of a manslayer, which is guilty of death : but he shall 
 surely be put to death " (Numb. xxxv. 31). " The acceptance 
 of blood-money was not permitted in any form whatever, and 
 so deep were the roots of this feeling that no special Hebrew 
 word was found to express this mode of compensation " (a). 
 (Ewald : Antiquities of Israel, p. 171.) 
 
 It was not only in the case of what we would call culpable 
 homicide that the acceptance of a death fine was prohibited ; 
 
 (a) The Hebrew word which is translated "ransom" in the English version, 
 properly means expiation. 
 
lect. in.] Hebretv Law. 45 
 
 even in the case of accidental homicide commutation by a 
 money payment was not permitted. A man who had escaped 
 to a city of refuge, and was entitled to remain there, could not 
 bargain with the Avenger of blood to be allowed to return to 
 his home (Numb. xxxv. 32). In one exceptional case the 
 acceptance of pecuniary compensation was permitted by the 
 Law in lieu of the death penalty. When an ox, winch was 
 known by his owner to be dangerous, had gored a man, the 
 owner was liable to be put to death ; but " If there be laid on 
 him a ransom, then he shall give for the redemption of his life 
 whatsoever is laid upon him" (Exodus, xxi. 80). This was pro- 
 bably an exceptional permission of the continuance of a custom 
 once more general. The very prohibition, in other cases, in- 
 dicates the existence of the custom either among the people 
 themselves or among surrounding tribes at some time or other. 
 
 No right of sanctuary was permitted for an intentional homi- 
 cide. "If a man come presumptuously upon his neighbour, to 
 slay him with guile; thou shalt take him from mine altar, that he 
 may die " (Exodus, xxi. 14). But in the case of accidental homi- 
 cide, the severity of the law was mitigated by the institution of 
 the cities of refuge, where the person who so caused death might 
 live in security. The fact that no place but one specially sacred 
 was sufficient to protect even a man who had accidentally 
 slain another, shows the terrible nature of the vengeance of 
 blood which ancient Hebrew Law exacted. 
 
 It was only in cases where the death was caused entirely 
 by accident that resort could be had to one of the cities of 
 refuge. " This is the case of the manslayer, which shall flee 
 thither and live ; whoso killeth his neighbour unawares, and 
 hated him not in time past; as when a man goeth into the 
 forest with his neighbour to hew wood, and his hand fetcheth a 
 stroke with the axe to cut down the tree, and the head slippeth 
 from the helve, and lighteth upon his neighbour, that he die ; 
 he shall flee unto one of these cities, and live ; lest the avenger 
 of blood pursue the manslayer, while his heart is hot, and over- 
 take him, because the way is long, and smite him mortally ; 
 
46 Law of Semitic Races. [lect. hi. 
 
 whereas he was not worthy of death, inasmuch as he hated him 
 not in time past" (Deut. xix. 4-6). 
 
 Although the original institution of the cities of refuge 
 was for cases of pure accident only, it is probable that where 
 death was caused in a sudden attack, or in the heat of a 
 quarrel, without malice, as we would say in our law, a resort 
 to a city of refuge was allowed. This would appear to be the 
 natural meaning of one passage in the Book of Numbers (xxxv. 
 22, 23). But apparently if a stone or a deadly weapon was 
 used, such excuse could not be pleaded ; and although there 
 might have been no intention to cause death, the offender was 
 given over to vengeance. 
 
 The primitive retaliation among the Hebrews was, as else- 
 where, entirely a custom, without any judicial process or 
 condemnation. It is in connexion with the right of sanctuary 
 in a city of refuge that we find the first trace in Hebrew Law 
 of a judicial investigation. The right of refuge only existed, 
 as I have said, in the case of accidental homicide ; it was there- 
 fore necessary to decide, in any case where it was claimed, 
 whether the person who claimed it was entitled to the privilege. 
 Upon arriving at the city of refuge, the fugitive was bound to 
 stand at the entrance-gate and " declare his cause in the ears of 
 the elders of that city " (Joshua, xx. 4). If he made a prima 
 facie case he was admitted, and once admitted could not be 
 surrendered to the Avenger of blood. But suppose the slayer 
 had really committed murder, and procured admission to the 
 city of refuge by a false account of the transaction, what was 
 done ? Once the right of refuge was allowed, subject to certain 
 restrictions, it was necessary to determine judicially in what 
 cases it might be availed of. This was done, not as we might 
 expect, by the authorities of the city of refuge, but by the 
 elders of the city from which the manslayer had fled. It was 
 their duty upon complaint made by the Avenger of blood to 
 send to the city of refuge for the accused, and there to deter- 
 mine the matter whether the slaying was accidental or not. If 
 it was, they restored the accused to his city of refuge, where, 
 
lect. in.] Hebrew Law. 47 
 
 notwithstanding his acquittal of any intention to do wrong, 
 he was bound to remain until the death of the High Priest ; 
 if, on the other hand, they decided that the slaying was not 
 excusable, they delivered the culprit over to the Avenger of 
 blood for vengeance. This appears quite clearly from a com- 
 parison of two passages, one in the Book of Numbers, and the 
 other in the Book of Deuteronomy: — "If any man hate his 
 neighbour, and lie in wait for him, and rise up against him, 
 and smite him mortally that he die; and he flee into one of 
 these cities : then the elders of his city shall send and fetch him 
 thence, and deliver him into the hand of the avenger of blood " 
 (Deut. xix. 11, 12). From this account alone we might sup- 
 pose that the trial took place in the absence of the accused, 
 before he was sent for, and that it was only in case of his 
 conviction that he was brought back to his own city. The 
 passage in the Book of Numbers, however, shows that this was 
 not so. It appears from it that the accused was brought back 
 for trial in every case. After enumerating the various cases of 
 excusable homicide, it goes on : — " Then the congregation shall 
 judge between the smiter and the avenger of blood according 
 to these judgments : and the congregation shall deliver the 
 manslayer out of the hand of the avenger of blood, and the 
 congregation shall restore him to his city of refuge, whither he was 
 fled; and he shall dwell therein until the death of the high 
 priest, which was anointed with the holy oil " (Numb. xxxv. 
 24, 25). It is plain from this account that the judicial inquiry 
 by the elders of the city was confined to cases where the accused 
 had fled to a city of refuge, and had been brought back thence. 
 The congregation is merely to restore the accused to the city of 
 refuge, whither he was fled. If the avenger of blood were able 
 to kill him, before he first reached the city of refuge, it was 
 lawful for him to do so with impunity. 
 
 It was necessary that two witnesses should testify to his 
 guilt, before the refugee was given over for execution. " One 
 witness shall not testify against any person that he die" 
 (Numb. xxxv. 30), i. e. apparently some person should corrobo- 
 
48 Law of Semitic Races. [lect. hi. 
 
 rate the accuser, if the accused pleaded that the deed was acci- 
 dental. Naturally everyone who caused the death of another 
 would flee to a city of refuge as his only chance of escape, and 
 in nearly every case he would be demanded by the avenger of 
 blood. The investigation by the elders of the city would thus 
 come to be a universal custom in cases of homicide (except in 
 cases where the avenger of blood had actually slain the culprit 
 before he reached the city of refuge). In this manner the 
 transition from the primitive system of revenge to a regular 
 criminal trial is complete, the only trace of the former system 
 being the execution of the sentence by the avenger of blood 
 personally. 
 
 The Hebrew Law thus, by the prohibition of the death fine, 
 and the institution of cities for refuge, as a mitigation of the 
 primitive custom of revenge, developed itself in an entirely diffe- 
 rent manner from the Law amongst Aryan communities. With 
 the latter the first origin of a judicial trial is the reference to 
 arbitration of the amount of the death fine to be paid. There 
 is no reference to arbitration, and no trace of its existence, so 
 far as I am aware, in the Hebrew Law. The jurisdiction of 
 the elders to determine a question as to the accidental character 
 of the deed or otherwise is of an entirely different nature, and 
 was probably the real origin of Criminal Law. 
 
 Bodily injuries not causing death were subject to the rule 
 of retaliation also. The Lex Talionis was applied here as rigo- 
 rously as in the case of death. " If a man cause a blemish in 
 his neighbour ; as he hath done, so shall it be done to him ; 
 breach for breach, eye for eye, tooth for tooth" (Levit. xxiv. 
 19-20). It is probable that this rule was confined to the case 
 of intentional injuries. " That unintentional injuries," says 
 Ewald, "would not be intended here is a matter of course. 
 Even in the case of those that were intentional, the law inter- 
 fered only at the express suit of the injured person ; and un- 
 doubtedly in later times compensation for injuries was mostly 
 made in money" («). 
 
 («) Antiquities of Israel, p. 175. 
 
lect. in.] Hebrew Law. 49 
 
 There was no prohibition of the acceptance of compensation 
 in this case. If a man, for instance, hurt a woman with child, 
 so as to produce a premature delivery, but no further harm 
 happened to her, it was provided that the offender in this case 
 should be fined, " according as the woman's husband shall lay 
 upon him, and he shall pay as the judges determine" (Ex. xxi. 
 22). If, however, mischief followed to the woman, "then," 
 said the Law, " thou shalt give life for life" {ibid. ver. 23). 
 
 Bodily hurt in a quarrel could also be compensated for, 
 the Law providing that the offender " shall pay for the loss of his 
 time, and shall cause him to be thoroughly healed" {ibid. ver. 19). 
 This was apparently where both were equally in fault originally. 
 But in the case of intentional injuries, the lex talionis was 
 enforced with all its rigour, and although there was no prohi- 
 bition against a money composition, there was no obligation 
 on the injured .person to accept same. " Life shall go for life, 
 eye for eye, tooth for tooth, hand for hand, foot for foot" 
 (Deut. xix. 21). 
 
 So far was this principle carried that it was applied even in 
 the case of false testimony. The offence of false testimony 
 necessarily involves the existence of a judicial inquiry, and so 
 belongs to a later stage of civilization than that which sanctions 
 revenge. Still the principle is maintained. A similar punish- 
 ment is inflicted to that which the victim would himself natu- 
 rally wish to impose. It is provided in the Book of Deutero- 
 nomy (xix. 16-20) that "If an unrighteous witness rise up 
 against any man to testify against him of wrong-doing, then 
 both the men, between whom the controversy is, shall stand 
 before the Lord before the Priests and the Judges, which shall 
 be in those days ; and the Judges shall make diligent inquisition: 
 and behold, if the witness be a false witness, and hath testified 
 falsely against his brother, then shall ye do unto him, as he hath 
 thought to do unto his brother." 
 
 Private property, both in moveables and in land, was recog- 
 nized by the Hebrew Law. Instances of land being allotted 
 to deserving chiefs and soldiers are frequent in the Old Testa- 
 
50 Law of Semitic Races. [lect. hi. 
 
 ment. Hebron, for instance, was given to Caleb by Joshua, 
 immediately after the conquest (Josh. xiv. 6-15). Upon death, 
 property was divided amongst the sons, the first-born being 
 entitled to a double portion (Deut. xxi. 15-17. "The first- 
 born was the principal heir and the proper representative of the 
 family, but undoubtedly under the condition of taking upon 
 himself more of the duties of the head of the family than the 
 other brothers, of maintaining the widows, and of providing for 
 the unmarried daughters " (Ewald, Antiquities of Israel, p. 179). 
 Daughters inherited fixed property only under exceptional cir- 
 cumstances, with the consent of their father or their brothers. 
 But if there were no sons, the daughters took the property in 
 equal shares (Numb, xxvii. 8). This was the "rule in Zelophe- 
 had's case," referred to by Mr. Ilbert, which is still observed by 
 the Jews of Aden. 
 
 Laws for the protection of property were unusually strict : 
 Ex. xxii. 1-4. A thief detected during the nihgt might be 
 slain with impunity ; if he were caught in the daytime he could 
 not be slain, but he was bound to make restitution twofold or 
 fourfold according as he had disposed of the property or not. 
 If he had nothing, and was therefore unable to pay the neces- 
 sary sum, he was sold into slavery for his debt. 
 
 Here we notice a striking similarity to the early Roman 
 Law. The same privilege of killing a nocturnal thief caught 
 in the act is conferred upon the owner of the stolen goods ; the 
 punishment, a money penalty only, in other cases varying, not 
 according to moral guilt, but according to the time of detection 
 and the value of the article stolen. There was also the same 
 liability of a convicted thief to be sold into slavery if he were 
 unable to pay the debt. Primitive penal law appears to have 
 been much the same everywhere. 
 
 Theft of human beings was punished by death (Deut. 
 xxiv. 7), whether the stolen person was found in possession 
 of the thief, or had been sold by him into slavery (Ex. xxi. 16). 
 This severity of the law was necessary, owing to the continual 
 growth of the slave trade, especially in latter times. 
 
lect. in. j Mohammedan Law. 51 
 
 The paternal rights over children, recognized by the customs 
 of all early nations, are found also in the Hebrew Law ; and 
 apparently a father was allowed, for the most trifling offence, 
 to take the life of his children (Deut. xxi. 18-21). But this 
 jus vitae necisque was not by any means so arbitrary as that 
 which the ancient Roman Law allowed. The Book of Deuter- 
 onomy distinctly lays it down that parents were not themselves 
 to inflict the penalty, but that they were to bring the matter 
 before the whole community, who were to inflict the punish- 
 ment. This may have been, and probably was, a restriction on 
 the primitive absolute right of life and death vested in the 
 father. The punishment for adultery and unnatural offences 
 was likewise stoning by the community (Deut. xxii. 21). 
 
 We thus see that among the most important of Semitic 
 peoples, the general course of development of Penal Law was the 
 same as among Aryan communities. The instinct of Revenge 
 is the origin of the Law. Eegulations as to the manner of its 
 exercise gradually arise ; and in some exceptional cases, the 
 punishment is taken in hand by the public authorities, in 
 order to prevent an excessive or unjust exercise of the privi- 
 lege. The principle of retaliation continues, however, to be 
 the sole principle upon which the Law is based. 
 
 II.— MOHAMMEDAN LAW. 
 
 The Mohammedan Law exhibits, as we might naturally 
 expect, the same traces of primitive usage in relation to crimes 
 and offences. Nothing is more opposed to the spirit of Islam 
 than the idea of progress ; and even until the present day, in 
 countries ruled by Mohammedan Law, the same principles and 
 practices prevail as were in existence more than a thousand 
 years ago. The Penal Code adopted in the Turkish Empire in 
 1840 introduced more modern ideas ; and the Koran has, in 
 many respects, been tacitly abandoned. The latter is, however, 
 
 e2 
 
52 Law of Semitic Races. [lect. hi. 
 
 still recognized as the principal, if not the sole, authority in 
 legal matters. The identification of law with religion, here 
 also, opposed an almost insuperahle obstacle to legal develop- 
 ment. The only loophole for escape, for legal ideas, from the 
 narrow prison of the Koran, lay in the principle of tradition. 
 Pious Mussulmans, while acknowledging the absolute authority 
 of the Koran in legal matters, do not assert that it has left 
 nothing unsaid, or that a precept for every case must be found 
 in it. They hold, on the contrary, that many things were 
 revealed to Mohammed which were not written down by him, 
 but which were orally communicated to his companions, who have 
 carefully transmitted them to future generations of the faithful. 
 According to an Arab author of high repute, El Mac/rizi, the 
 decisions of the Prophet upon special cases which called for his 
 intervention were known often only to humble followers who 
 were with him at the time, and escaped the notice of others. 
 Thus, in one case where Omar was ignorant as to what was the 
 proper fine {Dia) due for an unborn infant, a humble Arab of 
 Hodail was able to tell the Prophet's decision in a similar 
 case (a) . 
 
 Tradition is always more or less elastic, and in all proba- 
 bility traditions, conveniently invented, assisted much in the 
 growth of the law in various branches. It is not, therefore, 
 surprising to find considerable diversity of detail arising in 
 different systems of Mussulman Law. 
 
 The Mohammedan Penal Law is based upon the same 
 principle of primitive retaliation and self-redress as the other 
 systems to which I have referred. We have the same absence 
 of State intervention, and the same custom of death fines as we 
 find to have existed under the Brehon Laws. " Dans les 
 society, " says M.Albert Du Boys (b), " ou Ton n'a fait, en 
 quelque sorte, que regulariser l'exercice du droit de vengeance, 
 ou le talion existe dans sa grossierete native, l'etat n' intervient 
 que pour sanctionner ce talion, ou pour le remplacer par une 
 
 (a) See Etudes sur la Zoi Musiilmane, par C. Vincent, p. 15. 
 
 (b) Histoire du Droit Criminal des 1'euples Modirnes, vol. i., p. 366. 
 
lect. in.] Mohammedan Law. 53 
 
 composition pecuniaire par laquelle il regie les conditions mises 
 a la rancon du meurtiier et au pardon des parents de la 
 victime." 
 
 The Koran lays down in the most absolute terms this 
 principle of retaliation in the case of murder, and at the same 
 time it also expressly allows the relatives of the slain to take a 
 ransom (called Dia, or price of blood) for his life. " true 
 believers, the law of retaliation is ordained you for the slain : the 
 free shall die for the free, and the servant for the servant, &c, 
 woman for a woman, but he whom his brother shall forgive 
 may be prosecuted and obliged to make satisfaction, according 
 to what is just, and a fine shall be set on him with humanity" 
 (Koran, chap. ii.). " Whosoever shall be slain unjustly we have 
 given his heir power to demand satisfaction ; but let him not 
 exceed the bounds of moderation in putting to death the mur- 
 derer in too cruel a manner, or by revenging his friend's blood 
 on any other than the person who killed him ; since he is assisted 
 by this law" [ibid. chap, xvii.) 
 
 This is the common practice in Mohammedan countries, such 
 as Persia, to the present day. The relatives of the deceased 
 have their choice either to have the murderer put into their 
 hands to be put to death, or else to accept a pecuniary satisfac- 
 tion [a). In Turkey, until a very recent time, murder was never 
 prosecuted by the public authorities. The nearest relations 
 were allowed to revenge the slaughter of their kinsman if they 
 thought fit ; or if they preferred (as they generally did) to 
 accept the Dia, or price of blood, they could do so, and the mur- 
 derer then escaped liability. The Penal Code of 1840, however, 
 entirely abolished this system of pecuniary compensation, and 
 imposed the penalty of death for murder in every case (Art. 10). 
 The Code Moulteka had, in 1824, in a great measure effected 
 this end ; but the right to the payment of the Dia was preserved 
 by it in some exceptional cases. 
 
 In the case of accidental killing, a fine was also payable to 
 
 (a) See Chardin, Voyage de Perse, vol. ii., p. 299. Sale, Translation of the 
 Koran, p. 19 (note). 
 
54 Law of Semitic Races. [lect. hi. 
 
 the family of deceased, if they were true believers. " Whoso 
 killeth a believer by mistake, the penalty shall be the freeing 
 of a believer from slavery, and a fine to be paid to the family of 
 the deceased, unless they remit it as alms" (Koran, chap, iv.); 
 but if the offender was unable to pay the fine, vengeance was 
 not to be exacted. He was obliged to fast two months consecu- 
 tively, and so became free. The fine was in all cases divisible 
 among the relatives of the deceased according to the laws of 
 inheritance laid down in the Koran itself. 
 
 Theft was originally punished by mutilation. The hand, 
 as the offending member, was first cut off as a suitable retalia- 
 tion. For a second offence the thief lost his foot, and so on, 
 until all his members were amputated. But, as in the case of 
 homicide, the owners of the stolen property might compound 
 with the thief, and accept whatever penalty in lieu of revenge 
 they thought right. " Composition," it is laid down in a work of 
 authority (a), " is lawful with respect to every right or claim for 
 which a consideration may legally be taken, whether the right 
 or thing compromised be capable of being sold (as actual pro- 
 perty), or incapable (like the compensation for a crime or 
 offence, or for wilful bloodshed, the right of occupancy of a 
 house, and the compensation for a defect or blemish in an 
 article bought). Further, in the case of a compromise of the 
 right of retaliation, whether it be executed for more, or less, 
 than the clecut, or fine of blood, it is equally legal and valid ; 
 but in the case of accidental homicide, if it be executed for more 
 than the decut, or fine fixed by the law, and that be of the same 
 species, and of a nature in which usury can take place, the 
 validity of the composition is liable to doubt." 
 
 The Penal Code of 1840 abolished mutilation for theft, 
 throughout the Turkish Empire, and substituted therefor a 
 maximum term of seven years' imprisonment as a penalty. 
 Previous to the adoption of this Code there was really no such 
 thing as Criminal Law existing in Turkey. The primitive 
 
 (a) Digest of Mohammedan Law according to the Sect of the Twelve Imams, 
 p. 385. 
 
lect. in.] Mohammedan Law. 55 
 
 right of personal revenge which existed in lieu thereof, being 
 capable of being compounded for on exactly the same prin- 
 ciples as a right of property of any kind. The law was in 
 almost every respect identical with that existing in Ireland 
 under the Brehon system. Identity of usage could not have 
 arisen from any intercourse between the Celtic tribes of Ireland 
 and the Semitic races of Asia. The similarity of custom arose 
 rather from the simple fact that human nature is very much the 
 same everywhere, and that, consequently, the course of deve- 
 lopment of Penal Law is extremely like in the most distant 
 countries. 
 
LECTURE IV. 
 
 THE EOMAN PENAL LAW. 
 
 TN studying the Roman system of Laws the importance of the 
 -L distinction between Criminal Law and Penal Law becomes 
 extremely marked. The notion of a crime was of exceedingly 
 slow development in Rome. The theory of punishment by 
 means of a civil action was well recognized in the matured 
 Roman system. Real Criminal Law did not appear at Rome 
 until a much later stage of legal history than it did in England. 
 While the Republic was in its prime there was practically none 
 in existence. It was only when it began to waste away that 
 we find true Criminal Law coming into existence. The Leges 
 Cornelia passed by Sulla about the year 81 b.c. were the 
 earliest statutes which punished offences against individuals as 
 public wrongs. From this time forward numerous statutes 
 were passed dealing with particular offences, until under the 
 Empire the general rule was adopted that anyone who could 
 bring a penal action on a delict might, if he preferred it, 
 prosecute the delinquent before a criminal tribunal, (a) 
 
 The slow development of the Criminal Law is extremely 
 remarkable, in contrast to the very rapid manner in which the 
 Civil Law developed itself. The earliest view we get of 
 the Roman Civil Law exhibits it, in a great measure, already 
 
 (a) See Mr. Moyle's note to Just. Inst, book iv., tit. 2, and D. 47- 1. 3, and D, 
 17. 2. 56. 1. 
 
lect. iv.3 Roman Penal Law. 57 
 
 free from the formalism and superstition which usually pervade 
 early systems of law. 
 
 " The chief result," says the historian Mommsen, of an 
 inquiry into the ancient jurisprudence of the people of Italy, 
 " may be summed up in saying that fewer traces, comparatively, 
 of the primitive state of things have been preserved in the ease 
 of the Italians, and the Romans in particular, than in the case 
 of any other Indo-Germanic race. The bow and arrow, the 
 war-chariot, the incapacity of women to hold property, the 
 acquiring of wives by purchase, the primitive form of burial, 
 human sacrifices, blood revenge, the clan constitution conflicting 
 with the authority of the community, a lively natural symbol- 
 ism : all these, and numerous phenomena of a kindred character, 
 must be presumed to have lain at the foundation of civilization 
 in Italy as well as elsewhere ; but at the epoch when that 
 civilization comes clearly into view they have wholly dis- 
 appeared, and it is only the comparison of kindred races which 
 informs us that such things once existed. In this respect 
 Italian history begins at a far later stage of civilization than 
 e. g. the Greek or the Germanic, and from the first it exhibits 
 a comparatively modern character." (a) 
 
 Sir. H. Maine fixes the origin of true Criminal Law in 
 Rome at the year 149 B.C., when the Lex Calpurnia de Repe- 
 tundis was passed, (b) This statute established the first 
 Qusestio Perpetua or permanent criminal tribunal, and thus 
 from the point of view of criminal procedure it may be con- 
 sidered the origin of the Criminal Law ; and as its object was 
 to punish the misappropriation of public funds by Provincial 
 Governors, it dealt with what is undoubtedly a crime, but it 
 does not clearly recognize what is the gist of Criminal Law, — 
 that an injury to an individual may be a public wrong. It 
 dealt only with a direct injury to the State, although indivi- 
 duals might of course be indirectly injured thereby. The 
 Leges Comelice, however, passed some 70 years later, dealt with 
 murder, arson, forgery, and such matters, where the offence 
 
 (a) Mist, of Rome, vol. i. p. 157. {») Ancient Law, Chap. -v. p. 384. 
 
58 Roman Penal Law. [lect. jv. 
 
 was directly against the individual, and the State was only 
 wronged in so far as alarm was created or public order dis- 
 turbed. From this legislation therefore we may date the origin 
 of true Criminal Law at Eome. It never really obtained any 
 great importance, and such offences as theft (furtum) and 
 robbery [vi bonorum raptorum) were always dealt with as delicts 
 rather than as crimes in the Roman Law. 
 
 In the English legal system, on the other hand, the notion 
 of a crime was very early developed, and the Criminal Law 
 always occupied a prominent place. The penal actions, on the 
 other hand, which occupy such an important position in the 
 Roman system, gradually disappeared, or became merged in 
 ordinary actions of tort. The difference between the two 
 systems arose probably from the different form of government, 
 and is one of the many illustrations of the necessity for the 
 historical study of law. The Roman form of government 
 being a Republic, the English a Monarchy, the notion of an 
 injury to the State through an injury to an individual was 
 much more easy to comprehend in the latter ease than in the 
 former. The State was an impersonal abstraction at Rome. 
 In England it was represented by a distinct individual, who 
 would naturally punish as a wrong to himself an injury 
 committed against anyone under his protection. When we 
 come to consider the development of the English Criminal 
 Law we shall see what an important part the personal position 
 of the King took in it ; the violation of the King's peace being 
 at first the fact, and afterwards the fiction, upon which every 
 criminal charge was grounded. 
 
 The Roman Law is interesting as being the only important 
 system of laws which has grown up under a republic, and it 
 affords us also the best example of a logically developed system 
 of private penal jurisprudence. It is also interesting on account 
 of another peculiarity in contrast to most other systems, viz. its 
 freedom from religious influence. The distinction between a 
 sin and a crime, as Professor Hunter remarks, " lies at the root 
 of all legal development ;" but it is not, in general, recognized 
 
lect. iv.] Roman Penal Law. 59 
 
 uiitil a comparatively late period. Indeed, even at the present 
 day, the notion of punishing sins as sins is not entirely extinct 
 in our Criminal Law, while the early English Law fully re- 
 cognized the principle of doing so. The Romans were not a 
 religious people, and they adopted the sensible principle of 
 allowing the gods to avenge their own injuries. Thus, in the 
 later law, the distinction between perjury as an offence against 
 the gods, and false testimony as an offence against man was 
 well recognized. Perjury as such was not a crime unless the 
 accused swore per geniam Priucipis, in which case he was con- 
 sidered to have offered an insult to the Emperor. Laws against 
 heresy, when enacted, were justified upon the grounds that new 
 forms of worship tended to disturb the minds of weak persons («). 
 
 The non-religious character of Eoman Law was another 
 cause, probably, of the slow development of the Criminal 
 Law. Amongst a religious people, the idea that it is a public 
 duty to punish a sin is more likely to arise than that a private 
 wrong should be so avenged ; and it is extremely likely 
 that in many cases private injuries, such as murder and theft, 
 were punished in the first instance by the State as sins rather 
 than as torts. The callousness of the Romans as regards the 
 punishment of sins against the gods probably contributed, with 
 other causes, to the slow development of Criminal Law, and the 
 importance of private Penal Law. 
 
 The earliest known Laws of the Roman people are comprised 
 in the code called the XII. Tables, which was compiled by the 
 Decemvirs about the year 450 b.c. An ancient code differs 
 essentially from a modern code in this, that the latter, unlike the 
 former, is supposed to be a piece of new legislation entirely super- 
 seding the laws previously prevailing. Such a compilation as 
 the XII. Tables, however, was considered only as a summary of 
 the existing law, for the purpose of informing those who were 
 bound to obey, what rules they were obliged to follow. "We 
 can thus rely upon finding in such a code, traces at least of the 
 
 («) Paul. Sent., 5. 21-2. 
 
60 Roman Penal Law. [lect. iv. 
 
 Primitive Law of the people. Unfortunately the greater por- 
 tion of the XII. Tables is now lost. Fragments are, however, 
 preserved through the frequent references to the code in the 
 writings of the classical jurists. Graius constantly refers to 
 it; and from these scattered references modern scholars have 
 attempted to reconstruct the Tables. A complete collection of 
 the existing fragments, with references to the passages in later 
 writings, stating the purport of others now lost, may be found 
 in Ortolan's Histoire de la Legislation Romaine. 
 
 "We find in the XII. Tables, as we might naturally expect, 
 that there is no trace of Criminal Law in our modern significa- 
 tion of the term : — no punishment inflicted by the State for an 
 injury done to an individual. Self-redress is the principle 
 recognized here as in all Ancient Law. Table VIII. deals with 
 delicts, and is the source of the later Roman Law of torts and 
 crimes. There is no extant provision as regards homicide. It 
 is stated by Pliny (Hist. Nat. xviii. 3.) that the punishment for 
 this offence was death, but we have no knowledge of how this 
 punishment was inflicted. It can scarcely have been by a 
 regular judicial sentence, or we should have some record of a 
 change in the law in this respect ; for capital punishment was 
 not practised in historical times at Rome. The probability is that 
 the infliction of death was here as elsewhere merely sanctioned by 
 the Law, if inflicted, in retaliation, by the near relatives of the 
 murdered man. Such was apparently the rule with regard to 
 serious bodily injuries not causing death. The words of Table 
 VIII. with reference to such injuries are " Si membrum rupit, 
 ni cum eo pacit, talio esto." " If a person break another's 
 limb, unless he comes to terms with him, let there be retaliation." 
 This passage affords us a good illustration of the point of view 
 in which Ancient Law regarded torts and crimes. Modern 
 Law both punishes the wrongdoer and compensates the injured 
 person for a wrongful act, such as an assault. The act in 
 reference to the punishment is called a crime, in reference to 
 the compensation a tort. Ancient Law recognized no such 
 distinction. It simply allowed the injured man or his relations 
 
lect. iv-3 Roman Penal Law. 61 
 
 to punish, the wrongdoer unless the latter was ahle to buy off 
 vengeance by a money payment. The Tallo was inflicted by 
 the nearest relative (a). The XII. Tables thus bring us in this 
 provision to the very threshold of Penal Law :— simple retalia- 
 tion — " Talio esto." The custom of retaliation is recognized as 
 reasonable. The custom of the wrongdoer buying off the 
 revenge is also recognized and encouraged by the Law, but in 
 no way enjoined. The tendency of the Law was, as I have 
 said, to encourage these pecuniary compositions, with a view to 
 preventing disorder. The XII. Tables, in the case of lesser 
 injuries, fix the amount of the compensation to be paid 
 absolutely. Thus according to Table VIII. : — " Si injuriam 
 faxit, alteri viginti quinque aeris pcenae sunto." " Injuria " 
 apparently is here used to signify slight assaults, libels, &c. 
 "Injuria" says Graius, "is inflicted not only when anyone strikes 
 another with his fist, or with a stick, or whip, but also by using 
 abusive language (convicium), or when anyone wrongfully 
 seizes the goods of another, knowing that he owes him nothing, 
 and advertises them for sale, or by writing defamatory state- 
 ments or songs, or by following about a matron or a young 
 boy, or in many other ways" (Graius, iii. 220). 
 
 A law which provided a fixed penalty for all cases of 
 assault, slander, libel, illegal seizure, and solicitation, seems 
 strange to us ; and it is probable that this sum of 25 asses was 
 only a suggested amount of what would be reasonable in 
 ordinary cases as between the parties. We know from Graius 
 that in his time, at any rate, there was no fixed sum, but that 
 the Praetor or the Judex, according to the nature of the injury, 
 fixed the amount of the penalty (Graius, iii. 224). In the 
 case of damage caused accidentally the rule was simply that it 
 should be repaired. 
 
 The theory of the Ancient Penal Law being thus revenge, 
 the amount of the punishment awarded, or of the damages or 
 penalty assessed, varied, not according to the moral guilt of the 
 
 (a) Talione proximus cognatus ulciscitur. — Cato, in Priscian, 6. 700. 
 
62 Roman Penal Law. [lect. iv 
 
 delinquent, nor according to the injury sustained by the 
 injured party, but rather in proportion to the provocation. 
 The Law sanctioned what would be a natural amount of 
 punishment, and provided as a measure of damages what an 
 injured person would be likely to accept as the price of sur- 
 rendering his alternative right of revenge. This theory per- 
 vaded the whole Roman Law of delicts or torts, even in its most 
 mature stage. 
 
 In addition to the provisions regarding personal injuries, 
 the extant fragments of Table VIII. contain provisions as to 
 theft, fraud by a patron on his client, incantations, administra- 
 tion of poisons, and the curious offence of a witness to the 
 solemn form of contract by nexum refusing afterwards to 
 testify as to the transaction. The punishment provided for 
 this offence was based upon the same principle of retaliation, 
 which was applied in other cases. The person offending 
 became infamous. He was incapable of giving evidence 
 himself for the future, and no person was allowed to give 
 evidence in his favour. 
 
 During the whole period of the Republic at Home, Criminal 
 Law can scarcely be said to have existed. Crimes were 
 punished by penal actions, i. e. actions which conferred upon 
 the person injured a right to recover a penalty as a, punishment 
 to the wrongdoer, not as a means of providing compensation to 
 the sufferer. It is not correct, however, to speak of these actions 
 e.c delicto as corresponding to our actions of tort, for our law of 
 torts is almost entirely based upon the principle of compensa- 
 tion rather than punishment. They were rather a substitute 
 for our modern criminal prosecutions. 
 
 Obligations ex delicto always involved either dolus or culpa. 
 " Dolus " is a term constantly occurring in the Roman Law, 
 and is generally translated by the English term " fraud." In 
 reference to contracts this rendering is fairly accurate, but when 
 used in reference to delicts it has a somewhat different significa- 
 tion. It means a general unlawful intention— a deliberate 
 intention to violate the law. " Dolus " is thus very nearly 
 
lect. iv.J Roman Penal Law. 63 
 
 equivalent to our term "Malice." "Malice," in law, does not 
 denote anything with reference to the motive by which a man 
 is actuated. It implies only that he has a deliberate in- 
 tention to do a wrongful act. " Malice " is really equivalent 
 to "criminal intention." "Culpa" is exactly equivalent to 
 " negligence." The rule, therefore, that a person only incurred 
 an obligatio ex delicto when he acted either with dolus or culpa 
 exactly corresponds to the English rule as to criminal liability, 
 that a person can only be held liable for a criminal offence, if 
 he has acted either with "malice" — i.e. a deliberate intention 
 to break the law — or with such gross " negligence," as the law 
 considers to be equivalent to intention. 
 
 The remedy for a delict in Roman Law was invariably a 
 penal action. The penalty was in some cases fixed by law ; in 
 others it was based on the value of the property taken or 
 injured ; and in others, as in the case of Injuries in the time of 
 Grams, it was assessed either by the Praetor or the Judex. In 
 the case of an action which was purely penal, such as the action 
 of theft, the right to recover the penalty was entirely separate 
 and distinct from the right to recover the article stolen. In 
 other cases what was called a " mixed action " was allowed, 
 namely, one in which both the penalty and compensation for 
 the injury could be recovered (Just. Inst., 4, 6, 18). Of this 
 class of action were those for robbery (vi bonorum raptorum) and 
 Damnum Injuries under the Lex Aquilia. These actions appear 
 to have been later in origin than the action of theft, which 
 always remained the most archaic of all actions ex delicto. The 
 actio j'urti did not, as is sometimes said, correspond to our action 
 of trover. Its sole object was to recover the penalty and the 
 property itself ; or its value was recoverable in another form of 
 action, corresponding to our action of trover. " Pcenam tuntum 
 persequitur quis actione furti : sive enim manifesti agatur qua- 
 drupli sive nee mauifesti dupli, de sola poena agitur : nam ipsain 
 rem propria actione persequitur quis, id est suam esse petens, sive 
 fur ipse earn rem possideat, sive alius quilibet : eo amplius 
 adversus furem etiain condictio est rei " (Just. Inst. 4, 6, 18). 
 
64 Roman Penal Law. [lect. iv. 
 
 And it is also laid down in the Digest that if a person hires a 
 slave and then appropriates him, the two actions, one for the 
 breach of contract and the other for the theft, may he main- 
 tained. "Si locatum tihi servum subripies, utrumque judicium 
 adversus te est exercendum, locati et furti" (D. 19. 2. 42). In 
 the same way in our own law, an owner of property stolen can 
 prosecute for theft and at the same time bring a civil action in 
 trover to recover the value of the goods stolen ; but he cannot 
 commence the action, one in contract and one in tort, arising 
 out of exactly the same state of facts, for the law forbids what 
 is called the splitting of the cause of action. 
 
 Penal actions, being based on the theory of punishment, 
 were naturally uot available against the heir of the wrongdoer. 
 "Est enim certissima juris regula ex malificiis poenales aetiones 
 in heredem non competere, veluti furti, vi bonorum raptorum, 
 injuriarum, damni injurise" (J. 4, 12, 1). Thus also in our own 
 Criminal Law, the death of the accused puts an end to a pro- 
 secution ; but the principle of the Roman Law in this respect has 
 been also applied in our Common Law, with a complete ignorance 
 of its origin and limitation, the maxim " actio partialis moritur 
 cum persona " being transferred into " actio personalis moritur 
 cum persona." No legal maxim has caused so much confusion 
 in our law as this. It is impossible to hand down any general 
 rule as to when it applies and when it does not. The confusion 
 and uncertainty thus produced should be a solemn warning 
 against the adoption of principles from other legal systems with- 
 out a complete understanding of their origin and real limits. 
 
 The measure of damages in the Eoman Law in the case 
 of obligations ex contractu, and obligations quasi ex delicto, 
 properly so called, was very much the same as that in our 
 own law in the case of actions of contract — namely, the amount 
 by which the property of the injured party would have been 
 greater if the obligation had been fulfilled or the harmful act 
 or event had not occurred " id quod interest," " quanti ea res 
 est." A pretium affectionis which was purely personal and not 
 pecuniary was not taken into account. The theory of compen- 
 
lect. iv.] Roman Penal Law. 65 
 
 sation was applied strictly and regularly. In the ease of obli- 
 gations ex delicto .the principle applied was not compensation, 
 hut punishment or vindication. The measure of damages was 
 not " id quod interest," or what loss the Plaintiff had sustained, 
 but rather what would be a fit and suitable punishment for the 
 offence ; and this, in the first instance at all events, was based 
 on a calculation of what the injured party would be content to 
 take in consideration of his foregoing his right to revenge. 
 
 The main distinction between obligations ex delicto and 
 obligations quasi ex delicto was this, that the former implied 
 some moral guilt, something deserving of punishment; the latter, 
 as a general rule, arose out of facts which did not imply any 
 moral delinquency, but only a certain amount of negligence, 
 sufficient in the view of the law to put the loss upon the person 
 who had been guilty of the negligence rather than upon the 
 sufferer thereby. The principal cases in which obligations 
 quasi ex delicto arose were those where persons were held respon- 
 sible for the fault of others, such as masters for the acts of their 
 servants (a) ; but although the greater part of such obligations 
 arose in this way vicariously, still all did not. A Judex who 
 gives a wrong decision (si judex litem suam fecerit) was con- 
 sidered liable quasi ex delicto. He was liable, even though he 
 had erred through ignorance (per imprudentiam). If he acted 
 corruptly, there was of course dolus, and in such cases what we 
 would call exemplary damages could be recovered (Just. 4, 5, 
 par). The distinction in prinoiple between liability ex delicto 
 and quasi ex delicto was not strictly adhered to, though it existed. 
 The Eoman Law, like our own Law, was in many cases badly 
 classified, but a distinction nevertheless existed. In our own 
 law of torts no such distinction is recognized, and consequently 
 very great confusion and uncertainty exists as to the measure of 
 damages. The theory in all cases in English Law is compen- 
 sation, but in a considerable number of torts, principles are 
 applied quite inconsistent with this theory ; and we may fairly 
 say that all cases where juries are allowed to award exemplary 
 
 (a) As to the origin of the liability in such cases see ante, pp. 5 and 6. 
 
 F 
 
66 Roman Penal Law. [lect. iv. 
 
 damages are cases where the principle applied is punishment, 
 not compensation. These cases of actions ought to he classed 
 by themselves, and carefully distinguished from cases where 
 only compensation is awarded ; but this has never been done. 
 The result of the non-recognition of this distinction has been to 
 introduce confusion and uncertainty into the rules of English 
 Law on the measure of damages in actions of tort. 
 
 Delicts in the mature system of Roman Jurisprudence were 
 divided into four classes — (1) Theft (furtum) ; f 2) Robbery (ti 
 bonorum rapiorum) ; (3) Injuries to property {Damnum injuries 
 per legem Aquiliam) ; and (4) Injuries to the person (Injuria}). 
 Theft and Injuries to the person (Injuria) are mentioned in the 
 XII. Tables. Robbery was not originally distinguished from 
 theft. Cicero tells us that it was constituted a separate delict 
 by the edict of the Praetor Lucullus in the year 77, b. c. Dam- 
 num Injuria? was also constituted a specific delict by the Lex 
 Aquilia about the year 285 b. c. It was never the subject of 
 criminal prosecution, as the other three were. Furta and 
 Injuria thus represent in Primitive Penal Law at Rome the 
 two great classes of offences which exist in every system of 
 Penal Law — (1) Injuries to property ; and (2) Injuries to the 
 person. As they are mentioned in the earliest records of the 
 Roman Law and were gradually developed with its growth 
 much in the same way as their analogies in English Law, their 
 history is both interesting and instructive. 
 
 There were originally in the Roman Law four distinct 
 actions of theft, namely — (1) Theft detected in the commission 
 (furtum manifestum) ; (2) Theft not so detected (furtum nee 
 manifest u in) ; (3) Possession of stolen property discovered upon 
 search (furtum conceptum) ; and (i) The introduction of stolen 
 property (furtum ob latum) (a). 
 
 "The penalty" (poena), says Gaius(J), "by the law of the 
 Twelve Tables, was capital for furtum manifestum. A free 
 man was scourged and delivered over to the person from whom 
 he had stolen (whether he became a slave by the delivery or 
 
 (a) Gaius, Inst., 3, 183. (b) Inst. 3, 189. 
 
lect. iv.] Roman Penal Law. 67 
 
 reduced to the condition of an insolvent judgment debtor was 
 an old question). A slave was first scourged and then flung 
 from the Tarpeian rock. Afterwards the severity of this 
 penalty was disapproved, and by the edict of the Praetor an 
 action for fourfold damages was constituted in the case both 
 of theft by a slave and by a free man. 
 
 "The penalty ior fur tarn nee manifestum by the law of the 
 Twelve Tables was double damages : this the Praetor has pre- 
 served, 
 
 " The penalty for furtum conceptum and furtum oblatum by 
 the law of the Twelve Tables was triple damages : this has 
 been retained by the Praetor." 
 
 This passage has been frequently cited to illustrate the 
 entirely different view taken by ancient and modern law of 
 wrongful acts. Without an historical knowledge of the fact 
 we could never have conceived that the distinction between 
 different forms of an offence should depend altogether upon 
 the time and manner in which it was detected. The modern 
 ideas of punishment for the sake of reforming the criminal, 
 and preventing a repetition of the offence, have no place in 
 Primitive Law. Yengeance against the wrongdoer is the sole 
 object which is aimed at. 
 
 " The reason," says Mr. Poste, " why furtum manifestum 
 was subjected to a heavier penalty than furtum nee manifestum 
 was not because the barbarous legislator supposed that detection 
 in the act was an aggravation of the offence, but because he 
 wished, by the amplitude of the legal remedy offered, to induce 
 the aggrieved party not to take the law into his own hands and 
 inflict summary vengeance on the offender, particularly as it 
 was lawful to kill a nocturnal thief, or one who during the day 
 defended himself with a weapon. In the infancy of society 
 it is an important object to the legislator to induce an injured 
 person to have recourse to the public tribunals instead of 
 righting himself, that is to say, constituting himself both law- 
 giver and judge («)." 
 
 {a) Poste's Gaius, p. 460. 
 
 f2 
 
68 Roman Penal Law. [lect. iv. 
 
 It would perhaps be more true to say that the Ancient Law- 
 giver sanctioned the recovery of such a penalty as the person 
 wronged would probably be content to take. The notion of 
 tribunals being set up and persons being induced to enter them, 
 as it were by a bribe, is entirely contrary to fact. Law existed 
 before lawgivers or legal tribunals ; and tribunals when they 
 grew into existence simply ascertained what was the prevailing 
 custom for settling the particular class of cases with which they 
 dealt. " The standard of punishment," as Mr. Hunter says, 
 " was thus determined with a regard to the feelings of ven- 
 geance that might be expected to actuate a sufferer taking into 
 his own hands the punishment for the depredations on his 
 property." 
 
 There is a striking analogy in the early English Laws to 
 this variation of the punishment, depending upon the time of 
 apprehension rather than upon the character of the offence, 
 not, indeed, in the case of theft, but in reference to the offence 
 which has become the foundation of the whole Criminal Law of 
 England — breach of the King's peace. The Law of King 
 Alfred imposed death as the penalty for fighting in the King's 
 hall if the offender was taken in the act. If he escaped and 
 was subsequently apprehended, " wer-gild " only was exacted. 
 "If any one fight in the King's hall, or draw his weapon, 
 and he be taken, be it in the King's doom either death or life, 
 as he may be willing to grant him. If he escape and be taken 
 again, let him pay for himself according to his ' wer-gild,' and 
 make 'bot' for the offence, as well 'wer' as 'wite,' according as 
 he may have wrought "(a). 
 
 The various differences which existed between the Eoman 
 and English Law of theft arose chiefly from the different 
 definitions adopted in each system (b). Thus the term contrec- 
 tatio, although it implied some overt act — " neque verbo, negue 
 
 (a) Thorpe, Ancient Laws and Institutes of England, p. 30. 
 
 (i) For a definition of theft, according to Roman Lavr, see Digest, 47, 2, 1, 3, 
 and according to English Law, the judgment of Bovill, C. J., in Reg. v. Middle- 
 ton, L. R. 2 C. C. R. at p. 46. 
 
lect. iv.] Roman Penal Law. 69 
 
 scriptura quis furtum facit " (D. 47. 2. 52. 19) — yet it did not 
 require that the offence should be complete at the actual mo- 
 ment when possession was first taken by the thief. According 
 to English Law, if the first " taking " is lawful, no subsequent 
 fraudulent dealing amounts to theft. Thus, supposing a man's 
 house takes fire, and his neighbour takes his goods with his 
 consent for the purpose of protecting them, if the neighbour 
 afterwards changes his mind and converts them to his own use, 
 this is not larceny in English Law, as the original " taking " 
 was lawful (a), but in Roman Law it would clearly be theft, 
 the subsequent appropriation being a sufficient " contrectatio." 
 
 In spite of these points of difference, the Roman Law of 
 theft was in the main the same as our own. Thus, in the im- 
 portant case of the finding of lost property, the Romans applied 
 exactly the same test as to whether the appropriation by the 
 finder was or was not theft, namely, whether the finder took 
 the property knowing who the owner was, or having reasonable 
 grounds for believing that he could be found. " Qui alienam 
 rem adtrectavit, cum id se invito domino facere judicare debe- 
 ret, furti tenetur. Sed si non fuit derelictum putavit tamen 
 derelictum, furti non tenetur" (Sabin ap. Grell, 1. c. § 20). 
 
 Under the Empire, as I have already mentioned, the gene- 
 ral principle was adopted that anyone who could maintain a 
 civil action for theft could, if he preferred to do so, prosecute the 
 thief criminally. The penal action of theft was thus trans- 
 formed into the Criminal trial, and was gradually superseded by 
 the latter. In the time of Justinian, civil actions for theft were 
 rare, as they could not be maintained at the same time as a 
 Criminal prosecution. " Nunc furti plerumque eriminaliter 
 agi " (D. 47. 2. 92). The question may naturally be asked how 
 it arose that an offence like theft, which is generally one of the 
 earliest recognized as belonging to the Criminal Law, remained 
 for such a long period a matter of a civil nature. The expla- 
 
 (a) The case supposed, though not larceny at Common Law, would prohahly be 
 held to he larceny hy a bailee under the Statute 24 & 25 Vict. u. 96, s. 3. See 
 R. v. Beeves, 5 Jur. 716. 
 
70 Roman Penal Law. [lect. iv. 
 
 nation is to be found, I think, in the severity of the ancient 
 Roman Law of debt, as well as in the other general causes 
 which retarded the development of the Criminal Law at Rome. 
 If the thief was not in a position to pay the value demanded by 
 the injured party and approved of by the Judge, he was assigned 
 by the Judge to the person from whom he had stolen as a bonds- 
 man^). Thieves are not usually found among the wealthier 
 classes; so in a large proportion of cases theft at Rome was 
 punished even under the civil law by permanent loss of liberty. 
 
 Robbery was not in the early law distinguished from theft. 
 A person guilty of this offence could always be proceeded 
 against as for theft, manifedum or nee manifestum, according to 
 the circumstances of his detection. The actio vi bonorum rapto- 
 rum was first instituted, as Cicero tells us (pro Tullio, 8), by 
 Lucullus in b.c. 77, by reason of the frequency of crimes of 
 violence at that time. The penalty was triple the value of the 
 property taken. It is improbable that it was ever used except 
 when the offence did not come within the definition of furtum 
 manifedum ; and the principles applicable in reference to it 
 were very much the same as in the case of theft. 
 
 The actio clamni injuria ex Lege Aquilia is not properly 
 speaking an action ex delicto at all, but one quasi ex delicto. It 
 was not purely penal, like the actions furti, injuriarum, and vi 
 bonorum raptorum, but mixed, the damages being assessed not 
 on the principle of punishing the wrongdoer, but of compen- 
 sating the party injured. It was the first true action of tort in 
 the Roman system. 
 
 Injuria was an offence against the person, as distinguished 
 from the other three delicts which dealt with offences against 
 property. It was a comprehensive term, defined by Mr. Moyle 
 (Just. Inst., p. 519, note) as a wilful violation of what writers 
 on jurisprudence term the primordial rights of a free man — the 
 rights to personal freedom, safety, and reputation. Assaults 
 of all kinds, libels, slanders, violent abuse in public (convicium), 
 illegal seizure for the purpose of annoyance, solicitation. 
 («) See Mommsen, Hist. Home, i. 160. 
 
lect. iv.] Roman Penal Law. 71 
 
 " Greneraliter injuria dicitur omne quod non jure fit: specialiter 
 alias contumelia." (Just. Inst. 4, 4, par.) The penalty was 
 originally retaliation, then a sum fixed by law in each case, 
 and finally such damages as the Praetor or Judex should assess 
 (Graius, iii. § 220-225) (a). Under the Empire Injuria were 
 usually punished criminally. One of the Leges Cornelias 
 passed by Sulla in b.c. 81 specially dealt with the offence. 
 This was before the general rule was adopted that every 
 delict could be proceeded against criminally. 
 
 Such is a short summary of the Roman Law of Delicts. 
 Viewing it as a substitute for the Criminal Law, we are struck 
 at once by a notable omission. There is no penalty provided 
 for the death of a free man. For a wound or a hurt not causing 
 death, an actio injuria would lie ; for the death of a slave an 
 actio damni injuria) ex lege Aquilia. But for the wilful homicide 
 of a free man there was apparently no remedy. The reason of 
 this we learn incidentally from the rules as to the actio quasi ex 
 delicto, which was called de effusis vel dejectis. If, through the 
 carelessness of a slave or otherwise, anything fell from a house 
 and caused damage, a remedy in duplum was in general pro- 
 vided by this form of action ; but if thereby a free man lost his 
 life, a fixed penalty of 50 aurei was imposed, the reason given 
 being that no estimation could be formed of the value of a 
 free man's life. " Cum homo liber periit, damni sestimatio non 
 fit in duplum (quia in homine libero nulla corporis aestimatio 
 fieri potest) sed quinquaginta aureorem condemnatio fit" (D. 9. 
 3. 1. 5). 
 
 'In other eases apparently there was no civil remedy for the 
 death of a relative. If there had been it would have been a dis- 
 tinct exception to the rule that penal actions did not pass to the 
 heir, and would have been mentioned as such. The rule in our 
 own law prior to the passing of Lord Campbell's Act, 9 & 10 Vic. 
 c. 93, was the same in this respect. The preamble to that Act 
 commences : — " Whereas no action at law is now maintainable 
 against a person who, by his wrongful act, neglect, or default, 
 
 (a) Poste, p. 474. 
 
72 Roman Penal Law. [lect. iv. 
 
 may have caused the death of another person, and it is often- 
 times right and expedient that the wrongdoer in such cases 
 shall be answerable in damages for the injury so caused by 
 him." The Act then provides a remedy for the benefit of the 
 wife, husband, child, or parent (a) . 
 
 The theory of both systems of Law is that the value of 
 human life is too great to be estimated in money. Life is too 
 sacred to be atoned for otherwise than by the most severe 
 punishment. At Borne the life of a citizen was always re- 
 garded with peculiar sanctity ; and this may account for the 
 absence of any trace of the death fine in the early law. In the 
 Levitical Law the acceptance of such was positively forbidden 
 on this very ground ; and in all probability the same prohibition 
 was enforced in early times at Rome. 
 
 What, then, was the early Roman Law of Homicide ? We 
 have surprisingly little information on the subject. The exist- 
 ing fragments of the XII. Tables contain no reference to 
 homicide, though it is stated by Pliny (b) that, under this 
 code, the penalty of death was awarded for the crime. This 
 may, however, only have been a recognition of the right of 
 private vengeance, as it was provided in the case of a limb 
 being broken : "Si membrum rupit, ni cum eo pacit, talio 
 esto." It is, however, stated in the Digest that the XII. 
 Tables provided for the existence of Qucestores Parricidii. 
 " Quaestores constituebantur a populo, qui capitalibus rebus 
 prseessent : hi appellabantur qucestores parricidii : quorum 
 etiam meminit Lex XII. Tabularum." (D. 1. 2. 2. 23). 
 It may be doubtful whether these "trackers of murder," as 
 Mommsen calls them, were actually in existence at the date of 
 the XII. Tables as here stated, but there can be no doubt 
 that they were appointed at a very early date. They acted as 
 a sort of police, their duties being to search for and arrest all 
 murderers ; Parricidium being apparently used to denote murder 
 in general, not alone the murder of a parent or ascendant. 
 
 (a) But not for any other person. See Osborne v. Gillet, L. E. 8 Exch. 88. 
 
 (b) Hist. Hat. xviii. 3. 
 
lect. iv.] Roman Penal Law. 73 
 
 The appointment of these Qumstores Parricidii must be 
 considered the first step in the creation of Criminal Law at 
 Rome, as it involved a system of judicial inquiry and prose- 
 cution by the State ; but as there was in all cases a right of 
 appeal to the people in case of capital condemnation — a right 
 which would naturally be very generally exercised, the 
 Qusestores were rather in the position of magistrates conducting 
 a preliminary inquiry, than of criminal judges. Whether 
 their appointment did or did not immediately put an end to 
 the system of private vengeance we cannot now tell. At all 
 events we know that the punishment for homicide in the early 
 law was death. At a later period of the Republic it was con- 
 fiscation of goods, and banishment. How the system of capital 
 punishment disappeared from the penal system of Republican • 
 Rome has been explained by Sir H. Maine, (a) It was 
 revived by the legislation of Sulla about 81 b.c. The Lex 
 Cornelia de siccariis et beneficiis punished murder whether com- 
 mitted by a weapon or poisoning, and also all attempts to 
 murder. (Just. Inst. 4, 18. 5). Under this law it appears 
 that accessories were punished as severely as principals. (Cod. 
 9, 16. 7). The punishment was either death or banishment 
 [aqua et ignis interdictio) [D. 48. 8. 3. 5). 
 
 Killing by negligence was not within the Lex Cornelia. 
 In order to constitute the offence of homicide it was necessary 
 that there should be an intention to kill, or at least to inflict a 
 grievous wound. " Eum qui hominem occidit, si non ocoidendi 
 animo hoc admisit absolvi posse. Et qui hominem non occidit sed 
 vulneravit ut occidat pro homicida damnandum" (L. 48. 8. 
 1. 3). 
 
 The details of the law of homicide were very much like 
 those of our own law. Nevertheless, as remarked by Mr. 
 Justice Stephen (b), " The curious points which English 
 lawyers have considered with so much care as to the nature of 
 the connexion necessary to constitute homicide between the act 
 causing death and the death caused by it do not seem to have 
 
 (a) Ancient Law, p. 387, et seq. [b) Hist. Grim. Law, i. 18. 
 
74 Roman Penal Law. [lect. iv. 
 
 occurred to the Eoman lawyers, but there are various passages 
 in the Digest which state the principal cases in which the 
 intentional infliction of death was considered justifiable. They 
 are all reducible to the cases of self-defence, and the arrest or 
 punishment of criminals." 
 
 The Criminal Law of Rome may then be said to have origi- 
 nated in the legislation of Sulla. Prior to this, indeed, in the 
 single case of homicide, the State appears to have punished as 
 an offence against itself, an injury to one of its members, but 
 this did not imply any regular system of Criminal Law. Nor 
 was there any permanent Criminal tribunal in existence until 
 in the year 149 B.C., the first Qucestio Perpetua was appointed 
 by the Lex Calpurnia de Repetundis. This law, however, dealt 
 only with a political offence, viz. extortion by Colonial Gover- 
 nors. Sulla's legislation, a little more than half a century 
 later, covered the whole field of Criminal Law. In the matter 
 of criminal procedure he adopted and extended the principle of 
 the Lex Calpurnia de Repetundis. He instituted at least seven 
 Qucestiones in addition to that de repetundis, viz. for Treason 
 [De Majestate), for Injuries to the person or Insults {De vi et 
 injuriis), for Murder {Inter Sicarios), for Bribery {De ambitu), 
 for Fraud {De Falsis), for Embezzlement {De peculatu), for 
 Adultery {De Adulteris). From the sentences of these Courts 
 there was no appeal to the people. Their introduction, 
 properly speaking, marks the birth of true Criminal Law. 
 " From this Sullan legislation," says Mommsen {a), " dates the 
 distinction — substantially unknown to the earlier law — between 
 civil and criminal causes in the sense which we now attach to 
 these expressions ; henceforth a criminal cause appears as that 
 which comes before a bench of jurymen (viz. a Qucestio), a 
 civil cause as that which comes before the individual Judex. 
 The whole body of the Sullan ordinances as to the Qusestiones 
 may be characterized at once as the first Eoman Code after the 
 XII. Tables, and as the first criminal code specially issued at 
 all." 
 
 (a) Sisl. of Rome, bookiv., chap. 10. 
 
lect. iv.] Roman Penal Law. 75 
 
 From the time of Sulla forward criminal legislation was 
 abundant; until, after the establishment of the Empire, not 
 only was there a large body of Statute Criminal Law, but 
 what we would in English Law designate as Common Law 
 criminal offences came into existence ; the general rule having 
 been adopted that anyone against whom an action ex delicto 
 would lie for furtum, vi bonorum raptorum, or injuria, might 
 at the option of the injured person be prosecuted criminally 
 instead. 
 
 Why was it, then, that the Roman Law, which was so 
 rapid in its development on the oivil side, was so slow in attain- 
 ing to a system of criminal jurisprudence ? For this there were, 
 I think, three main reasons: — (1) The form of government; 
 
 (2) The essentially irreligious character of the people ; and 
 
 (3) The existence of slavery. 
 
 In the first place the Republican form of government, 
 greatly hindered the development of Criminal Law. We see, 
 in the history of early English Criminal Law, what a large 
 share the existence of the monarchy had in its creation. An 
 offence against one of his subjects became an offence against 
 the Bang himself. The extension of the Criminal Law, ad- 
 ministered by the King personally or his deputies, strengthened 
 and secured the Monarchy enormously, while it gave to his 
 subjects the blessings of peace and security. 
 
 The Republican spirit, on the other hand, is very much 
 opposed to the growth of Criminal Law. It is usually jealous 
 of the recognition of any authority for punishment except the 
 supreme will of the people : and so we find that at Rome, 
 during the Republic, in every capital case there was an appeal 
 to the people. The cause was discussed always in three public 
 assemblies before it was finally decided. The magistrate who had 
 given judgment was obliged to appear and defend his sentence, 
 and in this manner occupied the position of a public prosecutor 
 rather than that of a judge. It was not until the fourth meet- 
 ing that the question as to the verdict was put. " In this 
 way," says Mommsen, " the Roman criminal procedure was 
 
76 Roman Penal Law. [lect. iv. 
 
 completely void of principle, and was degraded into the sport 
 and instrument of political parties" (a). Every great crime be- 
 came a party question. The result is well described by Cicero. 
 " Plura enim multo, homines judicant odio aut amore aut cupi- 
 ditate, aut iracundia, aut dolore, aut laetitia, aut spe, aut timore, 
 aut errore, aut aliqua permotione mentis, quam veritate, aut prae- 
 scripto, aut juris norma aliqua, aut judicii formula aut legibus"(6). 
 A criminal trial thus quickly degenerated into a party broil ; 
 and to this, probably more than to any other cause, is to be 
 traced the decline of the Roman Republic. Let us hope that 
 Democratic government may not produce the same result with 
 us. The appeal from a Judge and Jury to " the Press of the 
 United Kingdom," which has now become usual in every case 
 of capital condemnation, seems to promise us very much the same 
 result. It may have been with a view to checking disorder, and 
 not as supposed by Mommsen with the object of putting an end 
 to capital punishment, that 0. Gracchus in 123 b.c. attempted 
 to withdraw the cognizance of murder and poisoning from the 
 popular assemblies altogether and to entrust it to permanent 
 judicial commissions. This reform was actually carried out by 
 Sulla a short time afterwards. 
 
 The absence of any religious element is one of the most 
 strongly-marked features of the Roman Law ; and the growth of 
 Criminal Law was greatly checked by this characteristic. The 
 first offences which the community as such punishes are usually 
 what it regards as grievous sins, or wrongs of such a particu- 
 larly heinous nature that religion forbids that they should be 
 compounded for merely by a money payment. That this was 
 so in the history of English Criminal Law appears plainly 
 from the extract from the writings of King Alfred, quoted by 
 Sir H. Maine, in the last chapter of his " Ancient Law." (<?). 
 The Romans, on the contrary, as regards the first class of 
 offences, adopted the cynical principle that it was a matter for 
 the gods themselves to revenge insults offered to them ; and as 
 
 (a) Sist. of Some, book ii., chap. 8. (4) De Orat. (ii. 42, 178). 
 
 (c) p. 398. 
 
lect. iv.] Roman Penal Law. 77 
 
 regards offences against man, they were not restrained by any 
 religious considerations, except apparently in the one case of 
 homicide, from allowing the injury to be atoned for by a money 
 payment to the person injured. 
 
 The third cause of the slow development of Criminal Law 
 in Rome was the existence of slavery. Crimes are generally 
 committed by the lowest class of the population, which, in a 
 State which recognizes slavery, is chiefly composed of slaves; 
 and the law does not as a rule deal with slaves except through 
 their masters, who are civilly responsible for their acts, and 
 who have ample power of inflicting punishment themselves. 
 On this account the want of a Criminal Law was not much 
 felt at Rome, until, under the influence of Christianity, the 
 power of .masters to take the lives of their slaves was taken 
 away, and slavery gradually ceased to exist. 
 
 These were, I think, the main causes which retarded the 
 growth of Criminal Law in the Roman system, and which 
 rendered the Roman Law a marked contrast to modern legal 
 systems in respect to the relative importance of its criminal 
 and civil branches. 
 
LECTURE V. 
 
 EARLY ENGLISH PENAL LAW 
 
 A T the present day, as Sir Henry Maine remarks («), two 
 ■£*- systems of law divide between them the whole civilized 
 world — one is the Roman Law, which forms the foundation of 
 the legal system prevailing throughout Continental Europe, the 
 other is the English Law, which practically rules the whole 
 new world as well as the United Kingdom. In my last Lecture 
 I briefly sketched the origin and development of Criminal 
 Law at Rome : I now come to our own system, the history of 
 which is, in many respects, even more interesting to the student 
 of general jurisprudence, and of course much more important 
 to those who intend to devote themselves to the practice of law 
 in this country ; for our modern Criminal Law has retained 
 many of the features which it exhibited in very early times, 
 and a knowledge of its history is absolutely essential in order 
 to understand its principles. Its history is continuous from 
 the earliest origin of the Anglo-Saxon race to the present day. 
 There was no break at the Norman Conquest as is commonly 
 supposed. The Norman kings administered the Saxon Law, 
 and merely took the 'place of their Saxon predecessors in the 
 administration of justice as in the performance of the other 
 duties of government. 
 
 The laws of the Anglo-Saxons were, as might naturally be 
 
 (a) Early Law and Curiam, p. 165. 
 
lect. v.] Early English Penal Law. 79 
 
 expected, almost identical with those of other German tribes ; 
 for the Saxon invaders of Britain brought with them all the 
 customs of their forefathers. The primitive method for the 
 punishment of crimes with them as with other nations was 
 merely vengeance. Each individual protected his own rights 
 and avenged his own wrongs by whatever power he himself 
 possessed, and in the manner in which he himself thought best. 
 At this stage of legal progress Courts of Justice did not exist ; 
 and there is nothing that we can properly term Law in existence, 
 no rule or limitation as to the right of vengeance except the 
 powers of the person injured to exact it, and the power of his 
 enemy to resist. "It is," in the words of Mr. Laughlin (a), 
 "one of the most instructive lessons in the history of English 
 Law to trace the growth of the power of government over the 
 individual ; the establishment of Courts of Justice ; the gradual 
 suppression of private warfare ; the substitution of permanent 
 kings for temporary leaders ; and in the course of time, the 
 assumption by the king of the ' ideal attributes of absolute 
 perfection, absolute immortality, and legal ubiquity.' " 
 
 We do not find the lex talionis established as the principle of 
 early German Law. In so far as it existed it was only a limi- 
 tation of the right of revenge. It was allowable to inflict 
 mutilation of one kind in revenge for mutilation of another 
 kind, provided the punishment was not excessive, hut the 
 gravity of the offence was the measure of the punishment. The 
 first germ of legal procedure is here found in an ex post facto in- 
 vestigation by the community into the act of vengeance whatever 
 it was, with a view to deciding whether the revenge taken was 
 reasonable or not, according to this test. Thus, by the laws of 
 Ina, it was provided that anyone who had slain a thief should 
 take an oath of his guilt, and that in that way he should escape 
 liability for his act. " Qui furem occiderit, debet inventare 
 cum juramento, quod ilium culpabilem et de vita forisfactum 
 occidisset, et non solvat" (Ina, 16). 
 
 And by the laws of Henry I. (really a summary of the 
 
 (a) Essays on Anglo-Saxon Law, p. 262. 
 
80 Early English Penal Law. [lect. v. 
 
 existing ' Saxon Laws) it was enacted : — " If anyone kill 
 another in revenge or self-defence, let him take to himself none 
 of the goods of the dead, neither his horse, nor helmet, nor sword, 
 nor any money ; hut in wonted manner let him arrange the 
 hody of the dead — his head to the west, his feet to the east — 
 upon his shield, if he have it ; and let him drive deep his lance, 
 and hang there his arms, and to it rein in his steed ; and let him 
 go to the nearest vill, and to him whom he shall first meet, as 
 well as to him who has socn, let him declare it, that he may 
 have proof and make defence against his (the slain man's) 
 kinsmen and friends" (83, § 6). 
 
 The right of revenge is here recognized, in the same 
 manner as that of self-defence. Even if the criminal escaped 
 and was taken by some other person, the right of vengeance 
 remained, and he was delivered to the relatives for the pur- 
 pose of exacting it. This is put beyond doubt by a passage 
 from the Laws of Canute (ii. 56) : " Qui murdrum aperte per- 
 petrabit, reddatur parentibus interfecti" (Leges Knut. ii. 56). 
 This system of private vengeance of course led. to terrible 
 anarchy. The offender was often as strong as, if not stronger 
 than, his adversary ; and the assistance of the kinsmen on each 
 side created a blood-feud, lasting perhaps for generations, out 
 of a single crime. But in the evolution of law remedy was at 
 length found. 
 
 The great step towards the limitation of the right of private 
 vengeance was the introduction of pecuniary compositions for 
 offences. The acceptance of such was originally, it is safe to 
 assume, purely voluntary, the offender buying off revenge at 
 such a price as the person injured might choose to accept in 
 consideration of foregoing his right to it. There is, no doubt, 
 that in the Brehon Law this system of composition was at 
 first purely voluntary ; and though there is no direct authority 
 that it was so in the Anglo-Saxon system, there are passages in 
 the laws which seem to imply it. Thus, by the laws of iEthelbert, 
 it is provided:— (65) " If a thigh be broken, let bot be made with 
 12 sh. ; if the man become halt, then the friends must arbi- 
 
lect. v.] Early English Penal Law. 81 
 
 trate " (a). We have under the Brehon Laws many instances 
 of persons who had slain others endeavouring to persuade the 
 relatives to accept a composition, and sometimes succeeding and 
 sometimes not [b). There is no doubt therefore that in that 
 system the decision rested, not with any legal authority, but 
 with the parties injured or their friends. Probably this was 
 also the case under Anglo-Saxon Law. 
 
 When once the system of compositions was established 
 everything tended to extend it. The influence of Christianity 
 by teaching mildness and forbearance ; the influence of the 
 government, when a settled government was once instituted, in 
 seeking to check disorder ; and finally, the manifest advantages, 
 both to the wrongdoer and the injured parties of preventing a 
 resort to bloodshed. These considerations led in time to an 
 actual enforcement of the system. The first criminal legislation 
 in England consisted merely of an ordinance by the king for- 
 bidding the resort to vengeance before an effort was made to 
 obtain pecuniary composition for the wrong. To enforce this 
 command required not only the sanction of public opinion, but 
 also some real authority in the sovereign. 
 
 When Alfred held the throne he was sufficiently strong to 
 carry out this policy, and to forbid a resort to vengeance unless 
 a claim for compensation were first made. The following is 
 his enactment on the subject : — 
 
 " Also, we decree that the man who knows his foe to be 
 home- sitting shall not fight him before he asks satisfaction. 
 
 " If he have power to surround and besiege his foe let him 
 watch him during seven days, and not attack him if he wish to 
 remain there. If he wish to surrender and give up his arms 
 let him guard him unhurt thirty days, and announce it to his 
 kinsmen and his friends (c) . 
 
 (a) Thorpe, Ancient Laws, §c, of England, p. 8. Compare the provision of the 
 XII. Tables (quoted, ante, p. 60). Si membrum rupit ni cum eo pacit talio esto. 
 
 (b) See ante, p. 27. 
 
 (c) Apparently with the object of enabling them to assist in making up the 
 required amount of composition. 
 
 G 
 
82 Early English Penal Law. [lect. v. 
 
 " If he have not power to besiege him within, let him go to 
 the ealdorman and ask aid ; if he be unwilling to aid him, let 
 him go to the king before he attack his foe " (Laics of Alfred, § 42, 
 pr. § 1-3). 
 
 This passage is interesting, not only as showing the nature 
 of the fine or composition paid, but also by its reference to the 
 position of the king in the matter. He is not a judge. He is 
 merely a referee of the justice of vengeance. This is probably 
 the first recognition in the laws of the necessity of any applica- 
 tion to the sovereign before the right of private vengeance was 
 enforced. We will see how, from this first beginning, the king 
 gradually increased his authority, chiefly availing himself, in 
 order to do so, of the plea that an unauthorized act of ven- 
 geance was a violation of his peace. It was not, however, until 
 long after the Conquest that the king, by means of this plea, 
 attracted to himself the whole criminal jurisdiction, and finally 
 put an end to private warfare and private revenge. 
 
 TVe have in Modern English Law one rule which is pro- 
 bably a survival of the right of private revenge. One of the 
 cases mentioned by Alfred in which private vengeance was 
 justifiable, was where a husband found a man with his wife under 
 circumstances which would justify him in supposing that they 
 were together for the purpose of committing adultery. "A man 
 may fight ' orwige ' [«'. e. without committing war] if he find 
 another with his lawful wife within closed doors, or under one 
 covering, or with his lawfully born daughter, or with his law- 
 fully born sister, or with his mother, who was given to his father 
 as his lawful wife" (Laics of Alfred, § 42). Modern Law recog- 
 nizes the provocation in this case to a certain extent. It treats 
 the killing of an adulterer taken in the act in the same way as 
 if he had been killed in a quarrel. The killing is not indeed 
 held to be justifiable, but it is laid down that the provocation 
 reduces the crime from murder to manslaughter. (Hale, 
 Pleas of the Crown, i. 486, R, r, Kelly, 2 0. & K. 814.) This 
 is, I helieve, the only case in which provocation, other than by 
 actual blows, is considered sufficient to reduce homicide to 
 
lect. v.j Early English Penal Law. 83 
 
 manslaughter, if the killing be effected with a deadly 
 weapon. 
 
 The compensation which was paid for homicide under 
 Anglo-Saxon Law was threefold — 
 
 (1) The wer, which was the regular price of a man fixed 
 according to his rank, and which was paid to his relatives in case 
 of his death. This was purely a personal value estimated accord- 
 ing to a man's rank and position. 
 
 (2) The hot, also paid to the relatives as compensation for 
 the crime. This varied according to the nature of the act. In 
 case of theft, it amounted to the value of the goods stolen. It 
 was also paid as a satisfaction for an injury to honour or 
 health, or such injuries to the person as inflicted no pecuniary 
 loss. The term is derived from the same root as our modern 
 word " better." 
 
 (3) The wite, a fine paid to the king as a penalty for the 
 breach of his peace. This, as we shall afterwards see, was the 
 origin of royal jurisdiction in criminal matters. The right of a 
 person to be undisturbed in his dwelling by an act of violence 
 committed near it, is one early recognized by the law. The 
 higher the rank the greater the distance to which this right 
 extends, and ultimately it comes in the case of the sovereign to 
 include the whole kingdom. 
 
 This system of fines is recognized as the sole punishment 
 for offences throughout the Anglo-Saxon Laws, unless we con- 
 sider the primitive revenge, which under certain conditions, was 
 always permitted a punishment. 
 
 The imposition of the fine in serious cases was always dis- 
 cretionary with the injured party, who might refuse to accept 
 it, and insist on his right of revenge. " If a thief be seized let 
 him perish by death, or let his life be redeemed according to 
 his wer" {Laws of Ina). In the case of murder the option of 
 accepting or refusing pecuniary compensation lay with the 
 nearest relatives of the deceased. The guilty person was de- 
 livered over to the relatives, who might kill him or spare him 
 as they thought fit, exacting in the latter case the customary 
 
 g2 
 
84: Early English Penal Law. [lect v. 
 
 fine. This clearly appears from the Laws of King Henry I. 
 In Chapter LXXI, " De Homicidio vel aliis maleficiis," the 
 following passage occurs : — 
 
 " Si quis veneno, vel sortilegio, vel invultucione, seu male- 
 ficio aliquo, faciat homicidium, sive illi paratum sit sive alii, 
 nichil refert, quin factum mortiferum, et nullo modo redimen- 
 tum sit. Reddatur ntiqae qui fuerit reus hujusmodi parenti- 
 bus et amicis interfecti, ut eorum misericordiatn aid judicium 
 senciat, quibus ipse non pepercit. Si res in compellacione sit, et 
 emundacione miseveniat, episcopi judicio reservetur. Et si 
 beneficio legis ad misericordiam vel concordiam pertrahatur, 
 de wera mortui plene satisfaciat ; et witam, et manbotam, et, 
 omnibus rite pacatis, plegios legalitatis deinceps inveniat : 
 triplex vero lada vel emundacio in agendis hujusmodi 
 sit." 
 
 The rule in the case of injuries not causing death is next 
 stated : — " Si autem insorticatus non fuerit mortuus, sed cutis 
 variacionem vel probabilem corporis contrahat egritudinem, 
 emendetur, sapientum antiquis diffinicionibus, sicut accident." 
 In this latter case apparently vengeance was not permitted. 
 Nor was it allowed in cases of homicide by misadventure. 
 
 When the Monarchy grew in strength, the King sought 
 to preserve order in his dominions by enforcing the accept- 
 ance of fines, and prohibiting revenge, unless the injured 
 person had previously offered to accept pecuniary compensa- 
 tion. The extent to which revenge was permitted varied in 
 different reigns, according as the King's authority prevailed. 
 Thus, although by the laws of Henry I. revenge was justified, 
 it was forbidden bylaws of Ina. The "Leges Henrici Primi " 
 were not, as I have already stated, a regular code established by 
 that King, but rather a compilation of the existing Anglo- 
 Saxon Laws by some unknown author. Consequently in many 
 respects they are more archaic than earlier codes. Thus, 
 although they sanctioned revenge in every case of serious 
 injury, it was provided bj 7 the laws of King Ina, that if any- 
 one took revenge before he demanded justice, he should give 
 
lect. v.] Early English Penal Law. 85 
 
 up what he had taken to himself, and pay the damage done, 
 and make hot with xxx shillings. 
 
 It was not until long after the Conquest, that this system of 
 private revenge ceased. The King's Courts gradually grew 
 powerful ; and finally, by the Statute of Marlbridge (52 Hen. III. 
 cap. 1), it was made a finable offence to exact revenge or enforce 
 the payment of compensation in lieu thereof without the inter- 
 vention of a court of law. That statute commences by recit- 
 ing that " whereas at the time of a commotion late stirred up 
 within this realm, and also si thence, many great men, and divers 
 other, have disdained to be justised by the King and his Court, 
 like as they ought and were wont in time of the King's noble 
 progenitors, and also in his time, but took great revenges and 
 distresses of their neighbours, and of other, until they had 
 amends and fines at their own pleasure." It then provides 
 that " none from henceforth shall take any such revenge or 
 distress of his own authority without award of our Court, 
 though he have damage or injury whereby he would have 
 amends of his neighbour either higher or lower." Aud it 
 further enacts, " that if any from henceforth take such revenges 
 of his own authority, without award of the King's Court as 
 before is said, and be convict thereof, he shall be punished 
 by fine, and that according to the trespass." Henceforth self- 
 redress was entirely forbidden in English Law, except in a few 
 specified cases. An injury inflicted in revenge for another is 
 treated in all respects as if it were an unprovoked trespass. 
 
 The prohibition of revenge, even although it were only 
 until after demand made for pecuniary satisfaction, necessarily 
 implied some means of enforcing the payment of fines ; for 
 otherwise the offender could by flight entirely baffle his adver- 
 sary. Hence arose the system of outlawry. A person who 
 refused to pay the accustomed satisfaction, and sought safety in 
 flight, was declared an outlaw, and thereby punished for his 
 offence. 
 
 Outlawry was the punishment for non-payment of fines in 
 all systems of law, and forms the connecting link between 
 
86 Early English Penal Law. [lect. v. 
 
 private Penal Law and true Criminal Law. The sentence 
 was pronounced at the County Court, -which, with the Anglo- 
 Saxons corresponded to the tribal assembly of other nations. 
 It -was necessary that the accused should be called at four 
 successive Courts, and if he failed to appear, he was then 
 declared an outlaw at the fifth. The effect of the sentence 
 was to deprive the outlaw of all rights as regards person or 
 property. He was really placed outside the law in every re- 
 spect. He could be killed with impunity by any person who 
 met him. He lost all his property, moveable aud immove- 
 able. He could not demand payment of fines for any 
 injury done to him. He lost his wergeld, as the Irishman 
 lost his honour-price. 
 
 The punishment of outlawry, though originally a means 
 merely of enforcing the payment of fines, continued to exist 
 long after the system of fines had disappeared. In fact it is 
 theoretically recognized in our Criminal Law to the present day, 
 though practically it has long become obsolete (see Blackstone, 
 Commentaries, iv., chap. 24). 
 
 The importance of outlawry as a punishment in early times 
 may be estimated by the space which is occupied in discussing 
 it in early treatises on Criminal Law. Bracton, in his work 
 Be Corona, most minutely specifies the requirements neces- 
 sary before sentence of outlawry can be pronounced ; and 
 the effect of such sentence when imposed upon any person. 
 Chapter xi. of that work deals with outlawry, and provides 
 in what manner an accused person is to be summoned before 
 sentence of outlawry is pronounced : — 
 
 " When indeed any person has so withdrawn himself on 
 account of homicide or any other crime, by the beneficence and 
 grace of the prince he shall be called to come and make answer, 
 and to stand on his defence, if there is an_yone who will speak 
 against him ; otherwise he is not to be forthwith called without 
 the suit of someone, because when grave crimes are charged 
 against an absent defendant, sentence is not usually hastened, 
 but he is accustomed to be called that he may be required, not 
 
lect. v.] Early English Penal Law. 87 
 
 indeed for punishment, but that he may have the power to 
 purge himself, if he can purge himself, and a legitimate time 
 shall be allowed to him, namely five months, that is within the 
 fifth County [Court] to stand on his defence, and to answer to 
 the accuser concerning the crime imputed to him ; but if he 
 should not have come within that time, he shall be held to be 
 an outlaw, since he does not obey the prince nor the law, and 
 he shall be thenceforth declared an outlaw, like him who is out 
 of the law, Laughelesman [Lawless-man] " (a) . 
 
 He then goes on to say that a person is not to be declared 
 an outlaw unless he has been pursued by some person entitled 
 to exact reparation from him : — 
 
 " But when a malefactor has taken flight, there ought to be 
 someone to follow the fugitive, to speak from sight and hearing 
 that he is a fugitive (b), . . . . and let him then state all the 
 words of the charge as if the fugitive were present, and le't 
 him in the charge, and his accusation, add that if he shall see 
 the person charged, he shall speak against him. But to make 
 this kind of suit let not any one of the people be admitted 
 unless it appertains to him by relationship to pursue him, by 
 reason that he is of blood and relationship connected with the 
 slain person, and in which case when there are several accusers, 
 the nearest relation is always preferred to the more re- 
 mote." 
 
 It is the " avenger of blood " according to the language of 
 the old Hebrew Law who alone in case of murder can enforce 
 the outlawry. No substitute was allowed to be appointed. 
 The duty of pursuit was sacred. " No person ought to pursue 
 to outlawry for another, unless it be for a person slain, so con- 
 nected by relationship or homage, that if the accused party 
 were present, an appeal would lie between them" (c). 
 
 (a) Bracton, De Legibns Angliae. Twiss's translation, vol. ii. p. 309. 
 
 (b) The oath " de visu et audita " (Glaaville, p. 2, c. 3) was abolished by 
 Stat. "West. I. chap. 41 (3 Ed. I.). 
 
 (c) Bracton, vol. ii. p. 313. 
 
88 Early English Penal Law. [lect. v. 
 
 An outlaw forfeited by his outlawry all his rights. " Like- 
 wise the outlaw forfeits every benefit which belongs to the 
 peace of the King, because from the time when he is out- 
 lawed he carries a wolf's head, so that he may be killed by 
 everyone with impunity, particularly if he defends himself or 
 takes to flight, so that his capture is difficult" (a). He loses 
 his property, and forfeits " everything which is of right or 
 possession, of right accruing or likely to accrue, of right 
 acquired or to be acquired, and all possession in like manner 
 in the form and mode of possessing." 
 
 A person outlawed might, however, be inlawed by the grace 
 of the King, and admitted to the King's peace (chap. xiv.). 
 " But a person inlawed is not restored to anything but the 
 King's peace, for the King cannot grant a pardon with inj ury 
 or damage to others [non enim poterit rex gratiam facere, cum 
 injuria et damno aliorum]. He is therefore not restored to his 
 rights of action or property which he has lost by outlawry " (b) 
 (chap. xiv.). 
 
 Such, apparently, was the manner in which personal 
 revenge for offences became transformed into a system of 
 pecuniary fines, the payment of which was enforced by outlawry. 
 We have now to inquire into the manner in which the system of 
 fines was in its turn superseded by a regular system of punish- 
 ments. 
 
 In considering the various causes which led to the disappear- 
 ance of the fines in our own legal system, we must in the first 
 place bear in mind that it was always considered as an indul- 
 gence to an offender to allow him to escape the consequence of 
 his crime by making a money payment. The Anglo-Saxon 
 Laws required an injured person to accept the accustomed 
 payment in most cases, but this rule was never universal. 
 Thus in ease of a second offence by the same person, the 
 acceptance of a fine was never enforced. " At the first time," 
 says a law of Ethelred, " let him make hot to the accuser, and 
 
 (a) Ibid., p. 339. (b) Hid., p. 371. 
 
lect. v.] Early English Penal Law. 89 
 
 to the lord his wer, and let him give true borhs that he will 
 hereafter abstain from all evil. And at the second time let 
 there be no other hot than the head" (a). 
 
 Certain crimes also, in consequence of their enormity, were 
 always considered incapable of being compensated for by 
 money. Thus, the Laws of Cnut declare that "Housebreaking 
 and arson, and open theft, and open-morth, and treason against 
 a lord are by the secular law bot-less " (b). The imposition of 
 fines had thus only a limited range at any time, and many 
 causes tended to still further restrict it. 
 
 The first of these was the influence of religion. Curiously 
 enough, Christianity helped both the growth and the decline of 
 the system of pecuniary fines. It assisted its establishment as 
 a mitigation of the terrible system of private revenge for 
 wrongs. To accept pecuniary satisfaction was always looked 
 upon as an act of forbearance. This clearly appears from the 
 account given in the Senchus Mor, of the establishment of the 
 Eric fines which I quoted in a previous lecture (c). It was, as the 
 commentator in that work calls it, " a middle course between 
 forgiveness and retaliation." Probably the same view was 
 taken by the Anglo-Saxon Church, which consequently en- 
 couraged the system. But once regularly established, the fines 
 came to be looked upon as a, punishment rather than as the price 
 of forgiveness; and as moral ideas became developed, the 
 fines appeared to be in many cases a most inadequate punish- 
 ment. 
 
 In so far as the offence committed was a sin, the Church 
 then discouraged the idea that it could be atoned for by money 
 alone. The passage from the writings of King Alfred, quoted 
 by Sir H. Maine (Ancient Law, p. 398) clearly indicates the 
 growth of this idea. " After this it happened that many 
 nations received the faith of Christ, and there were many 
 synods assembled throughout the earth, and among the English 
 race also after they had received the faith of Christ, both of 
 holy bishops and of their exalted Witan. They then ordained 
 (a) Thorpe, i. 281. (S) Thorpe, i. 411. (c) ante, p. 
 
90 Early English Penal Law. (_lect. v. 
 
 that out of that mercy which Christ had taught, secular lords, 
 with their leave, might without sin take for every misdeed the 
 bot in money which they ordained ; except in cases of treason 
 against a lord, to which they dared not assign any mercy, 
 because Almighty God adjudged none to them that despised 
 Him, nor did Christ adjudge any to them which sold Him to 
 death ; and He commanded that a lord should be loved like 
 Himself." 
 
 Here the acceptance of the fine is plainly regarded as 
 prima facie wrong. It is only •permitted by the Church in the 
 case of lesser offences, and condemned in the case of more 
 heinous crimes. The same idea which led the Hebrews -to 
 condemn the acceptance of a death fine as a grievous sin, 
 gradually put an end to the weregeld in England also. 
 
 Another cause for the disappearance of the fines was the 
 system of frankpledge. By means of the latter, the imposition 
 of fines was gradually transformed into a most effective police 
 organization. According to the system of frankpledge, as 
 established in the 10th and 11th centuries, all men were bound 
 to combine themselves in groups of tens, each of whom was 
 responsible for the acts of the others. If one committed an 
 offence the others were bound to arrest him and deliver him 
 over to justice, or make good the mischief which the offender 
 had done. Even to the present day there are remnants of this 
 system in English Law, though for centuries it has had no 
 practical operation («). 
 
 There can be no doubt, I think, that frankpledge was a 
 survival of the system of tribal responsibility for crime which 
 prevailed almost universally at an early stage of legal progress, 
 and of which we find in the Brehon Laws the most complete 
 and elaborate code. There always coexisted with this responsi- 
 bility, wherever it prevailed, a right to surrender a criminal in 
 lieu of being answerable for his acts ; such, for instance, appears 
 to have been the origin of the norce elect itio of the Roman Law. 
 
 (a) See Stephen's History of Criminal Law, i. 66. 
 
lect. v.] Early English Penal Law. 91 
 
 The organization of hundreds and tithings in the Anglo-Saxon 
 system originated, in all probability, in this family liability ; 
 and when in the progress of society the gradual break-up of the 
 family system took place, frankpledge survived. The tribal 
 liability was thus transformed into a system of compelling the 
 hundred under penalty of a fine to seek for, arrest, and produce 
 a criminal. The change was of course complete long before 
 Bracton wrote, but the account which he gives of the matter 
 plainly indicates the origin of the system. The liability of the 
 tithing to pay the fine which existed, even though the male- 
 factor were caught and delivered over to justice, if he were not 
 delivered over by the tithing itself, shows that it was not merely 
 for the default in arresting him, as it is sometimes stated, that 
 the fine was imposed. The account given by Bracton is so 
 interesting that it is worth quoting at length. It is contained 
 in chapter x. of his work, De Corona, and is as follows : — 
 
 " We have spoken of those who are present or may be seized 
 in an act of felony done in public, several persons standing by 
 and seeing it, as in some assemblies. But because there are 
 some persons who forthwith betake themselves to flight after a 
 felony and cannot be seized, let the hue be raised after them 
 from vill to vill until the malefactors are captured, otherwise let 
 the whole district be amerced to the King But con- 
 cerning the person who has thus taken to flight, it will have to 
 be diligently inquired if he was in frankpledge and in a tithing, 
 and then the tithing will be amerciable before oar justices because 
 they have not produced the malefactor for trial, although he has 
 been captured again by others beforehand and delivered to prison, 
 since he has not been captured and produced by the tithing. But 
 if he be out of frankpledge and received into some vill, the 
 district of the vill will be amerciable, unless the person who has 
 run away ought not to be in a tithing or in frankpledge ; as, 
 for instance, magnates, knights, and their relations, a clerk, a 
 freeman, and such like, according to the custom of the country, 
 and in which case the person, of whose family and household 
 he may be, will be liable in some parts, and he shall be respon- 
 
92 Early English Penal Law. [lect. v. 
 
 sible for them, unless the custom of the country introduces a 
 different principle, that he ought not to be responsible for his 
 
 household Because every man, whether free or a serf, 
 
 either is or ought to be in frankpledge, or in somebody's house- 
 hold, unless he be somebody itinerant from place to place, who 
 does not keep himself to one more than to another, or who has 
 something which suffices for frankpledge, as a dignity, or an 
 order, or a free tenement, or real property in a city. And 
 according to the Laws of King Edward, everyone who is of the 
 age of twelve ought to make oath at the view of frankpledge 
 that he is not a robber nor will conspire with a robber ; and every 
 person who has land and house, who are called ' householders,' 
 ought to be in frankpledge, and also others who serve them who 
 are called 'followers,' for neither ought a person to repel from 
 himself his servitor before he is purged from every charge of 
 which he has been previously charged" (a). 
 
 But the main cause of the disappearance of the system of 
 fines from our Criminal Law was the growth of B.oyal Juris- 
 diction in criminal matters. This opens up such a wide subject 
 for inquiry that I must reserve what I have to say upon the 
 matter for another Lecture. 
 
 (a) Bracton, De Zf gibus Aiiglim, vol. ii., pp. 303-309. 
 
LECTURE VI. 
 
 BAELY ENGLISH CRIMINAL LAW. 
 
 rpHE distinguishing feature of modern English Criminal Law 
 J- is the fact that the Sovereign is in all cases the prosecuting 
 party. The Queen prosecutes every petty larceny, and at the 
 same time, by her delegate, the Judge of Assize tries the 
 offender. Theoretically she is judge in her own cause, a 
 position which is repugnant to every principle of jurispru- 
 dence. 
 
 What, then, is the origin in English Law of this prosecu- 
 tion by the "Crown in all criminal matters? The answer of 
 Blackstone and the Analytical School of Jurisprudence is 
 simply that the King is the fountain of justice, and that he is 
 bound to see that the law is enforced in the public interest. 
 If this be so, why is the name of the Sovereign not used in 
 civil actions ? Surely it is as much in the public interest that 
 the Civil Law should be enforced, as that the Criminal Law 
 should be. The answer to the question is really historical. 
 The prosecution by the Crown first arose not from any 
 notion of public convenience, but in an entirely different way ; 
 and moreover our Criminal Law still retains traces of the 
 manner in which the system originally grew up. 
 
 Every lawyer is familiar with the modern form of an indict- 
 ment. The offence is always alleged to have been committed 
 " against the peace of our Sovereign Lady the Queen, her 
 
94: Early English Criminal Law. [lect. vi. 
 
 Crown and dignity." Until a very recent date, an indictment 
 prepared without this formal ending was wholly bad. A recent 
 statute, however (11 & 15 Vict. c. 100, s. 24), specially 
 provides that an indictment is not to be held insufficient in 
 consequence of the omission of the words " against the peace." 
 Before it became law an indictment without these words was 
 considered not to charge any offence, no matter how formal it 
 was in every other respect. "Why was this ? The real reason 
 was that the averment that every offence was " against the 
 peace," which in time had become a mere formality, was origi- 
 nally the real statement of the crime with which the accused was 
 charged. An investigation of the history of English Criminal 
 Law shows that originally only a real violation of the King's 
 personal rights was the subject of an indictment ; and that the 
 origin of our present system of criminal procedure was a proceed- 
 ing to avenge an offence against the King personally, which lie 
 prosecuted in exactly the same manner as a private indivi- 
 dual proceeded against one who had wronged him. The 
 violation of the King's peace was an insult to him personally, 
 and so was punished by him. 
 
 In nearly all ancient systems of law the violation of the 
 peace of any chief or person of importance is recognized as an 
 offence. Thus, we find elaborate provisions existing in the 
 Ancient Irish Law as to the m&igmn or " precinct " of a chief, 
 and the penalties laid down for any violation of its sanctity. 
 The Early English Laws contained similar provisions (a). An 
 act of violence within the ambit of the King's or a lord's 
 demesne was an offence against him, in the same manner as a 
 violation of neutral territory is regarded as an offence by 
 modern International Law. The King's peace first extended 
 only to the particular place where he happened to be ; and 
 to such places as had this special privilege conferred upon 
 them (6). 
 
 " The King's presence," says Sir F. Palgrave, " imparted 
 
 (a) See Stephen's, History of Criminal Law, i. 60. 
 
 (b) Ibid., CO (note). 
 
lect. vi.] Early English Criminal Law. 95 
 
 peace, not only to his residence, but to a considerable district 
 around it. Three miles, three furlongs, and three acre-breadths, 
 nine feet, nine palms, and three barley-corns, constituted the 
 mystical radius of the verge, which was reckoned from the 
 town or mansion where the King held his Court ; and within 
 this ambit the protection by royalty was to remain unviolated. 
 At certain times and holidays also, the King's peace was to be 
 observed throughout the realm. The week of the ceremony of 
 the coronation constituted one of these privileged periods : 
 they also recurred periodically at the three great festivals of 
 the year, Christmas, Easter, and Whitsuntide, being the several 
 seasons when the King wore his crown in the great Councils of 
 the respective Anglo-Saxon States or Kingdoms. Lastly, the 
 King's peace could be ' given ' by his word and will, by his 
 ' hand ' or by his writ, or by his seal ; and the punishment of 
 the transgressor was greatly enhanced if he violated the pro- 
 tection thus afforded. In some shires the breach of the King's 
 peace, or violation, or contempt of the royal authority, increased 
 the mulcts paid by the offender ; in others it placed his life and 
 limbs at the King's mercy, or exposed him to the dread penalty 
 of outlawry, rendering him guilty of a capital crime, which 
 was visited by the extreme rigour of the law. Sometime after 
 the Conquest, all these special protections were disused : but 
 they were replaced by a general proclamation of the ' King's 
 peace,' which was made when the community assented to the 
 accession of the new Monarch ; and this first proclamation was 
 considered to be in force during the remainder of his life, so as 
 to bring any disturber of the public tranquillity within its 
 penalties. So much importance was attached to the ceremonial 
 act of the proclamation, that, even in the reign of John, offences 
 committed during the interregnum, or period elapsing between 
 the day of the death of the last Monarch and the recognition 
 of his successor, were unpunishable in those tribunals whose 
 authority was derived from the Crown" (Palgrave, Rise and 
 Progress of the English Commonwealth, i. 284-5). 
 
 The original "pleas of the Crown" were either offences 
 
96 Early English Criminal Laiv. [lect vi. 
 
 against the King personally, such as treason or concealment of 
 treasure-trove ; or some act of violence committed in such a 
 manner as really to amount to a breach of the peace. Theft, 
 for instance, is not found in the list of pleas of the Crown 
 given by Glanville, though robbery is, as it necessarily involved 
 an act of violence. Gradually the system arose of alleging that 
 an offence such as theft was committed " against the peace," 
 even though accompanied by no violence whatsoever. By this 
 means the prosecutor escaped the awkward incident which 
 always attached to a proceeding by him personally, of being 
 liable to be challenged by the accused to a trial by combat. It 
 was laid down that the King should not fight, as such a course 
 would be beneath his dignity, and consequently in prosecutions 
 by him the accused could not claim a trial by combat. 
 
 The allegation of a violation of the King's peace thus 
 gradually became a mere fictitious averment to confer jurisdic- 
 tion ; but for a long time a real distinction was made between 
 cases where there was and where there was not a real breach of 
 the King's peace. Thus in Britton's Treatise, written probably 
 in the reign of Edward I, it is laid down in reference to lar- 
 cenies, that there are two modes of procedure, either by the 
 party from whom the goods are stolen or by the King, and it 
 is stated on behalf of the King that when the wrongdoer has 
 been sued in form of trespass by the owner of the goods the 
 King will not proceed against him, even though his peace may 
 have been broken (a). 
 
 The definition of murder given by Lord Coke (3 Inst. 47) 
 shows a trace of the same idea : " when a person of sound 
 memory and discretion unlawfully killeth any reasonable 
 creature in being and under the King's peace with malice 
 aforethought, either express or implied." 
 
 Probably also, this idea of a violation of the King's peace 
 explains the strictly territorial limits of modern English Criminal 
 Law. If an Englishman makes a contract with another in 
 
 (a) Britton, p. 118. 
 
lect. vi.] Early English Criminal Law. 97 
 
 France, it may be enforced against him in an English Court, 
 but if he steals his fellow-countryman's property there, he 
 cannot be tried by an English tribunal ! The " peace of our 
 Sovereign Lady the Queen " is not affected by anything which 
 takes place outside her own territory (a). This is not the only 
 feature in our modern Criminal Law which is explained by its 
 historical origin. 
 
 The gradual change from a system of private revenge or 
 pecuniary compensation to a true system of Criminal Law was, 
 as I have already shown (b), materially assisted by the growth 
 of the royal power. When once the Sovereign became strong 
 enough to preserve the peace, the reasons in favour of a system 
 of fines for the sake of preserving order and putting an end to 
 blood feuds ceased to exist, and fines entirely disappeared 
 from our criminal system. The prosecution by the Crown in 
 criminal matters finally disposed of the system of pecuniary 
 compensation. It emphasized the growing idea that punish- 
 ment, not revenge, was the object of the proceeding, for it was 
 obvious to any person who took the trouble to consider the 
 matter that the Sovereign was not really injured in any way, 
 and that his motive for the proceeding must be more or less of a 
 moral or utilitarian nature. In fact, the interposition of the 
 Sovereign as a party, not merely as a judge, really effected the 
 transformation from Penal Law to Criminal Law in our system. 
 
 It is not merely a matter of conjecture that the growth of 
 Royal Jurisdiction as regards crimes gradually transformed our 
 criminal system in the way I have stated. Royal prosecutions 
 did not at once supersede prosecutions by the parties themselves. 
 This was only a gradual process. All through the Middle 
 Ages, and indeed long after that period is considered to have 
 come to a close, two systems of prosecutions for crimes continued 
 to exist side by side. Either the party aggrieved (or his relatives 
 
 (a) This is the general rale, but there are a few statutory exceptions. Treason 
 (26 Hen. VIII. c. 15), murder (24 & 25 Vic. c. 100, e. 9), and bigamy (24 & 25 
 Vic. i>. 100, s. 57), if committed abroad by British subjects, are indictable in 
 England or Ireland. See Stephen's History of Criminal Law, ii. 13, et seq. 
 
 (i) See ante, pp. 81, 82. 
 
98 Early English Criminal Law. [lect. vi. 
 
 in case of his death) might institute a proceeding {a) which 
 was called an appeal, or, if he failed to do so, the Sovereign 
 might take up the matter and prosecute for the violation of his 
 peace. Gradually appeals became rarer and rarer, and at last 
 entirely obsolete ; but they were not formally abolished until 
 the year 1819 (b). As long, however, as they continued to exist 
 they retained all their primitive characteristics. The accused 
 had the option of a trial by battle ; and he could compound with 
 his accuser by the payment of a pecuniary fine. "When the 
 King prosecuted, both these barbarous incidents disappeared. 
 It was laid down by Bracton that the King did not give wager 
 of battle ; and it was obviously still more beneath his dignity to 
 make a bargain for the life of a malefactor. As then we find 
 that where the King did not prosecute, the acceptance of pecu- 
 niary compensation was always allowable, and when he did, it 
 was not, we may safely assert, that the cause of the disappear- 
 ance was the fact of the Crown prosecuting in nearly every case. 
 
 The history of this system of appeals is both interesting and 
 instructive. When Blackstone wrote his Commentaries appeals 
 were not entirely obsolete, and in his fourth volume he gives a 
 short account of them. He defines an appeal as " an accu- 
 sation by a private subject against another for some heinous 
 crime, demanding punishment on account of the particular injury 
 suffered, rather than for the offence against the public" (c). 
 
 " The chief object of an appeal at all times, " he further 
 states, " was to compel the defendant to make a pecuniary 
 compensation. For when the verdict in an appeal was given 
 in favour of the appellant, he might insist upon what terms he 
 pleased as the ransom of the defendant's life, or a commutation 
 of the sentence " (d). An appeal was in reality a survival of the 
 
 (a) It is scarcely necessary to point out that our modem private prosecutions 
 have nothing to do with the ancient "Appeals." In private, as well as in public 
 prosecutions the Crown is formally the prosecuting party. 
 
 (4) 59 Geo. III. c. 46. 
 
 (c) Commentaries, iv. 312. 
 
 (d) Ibid. 316 (note). 
 
lect. vi.] Early English Criminal Law. 99 
 
 primitive mode of redress by revenge or pecuniary satisfaction. 
 It corresponded exactly to the penal action of the Roman Law. 
 It had very little resemblance to a criminal prosecution in the 
 modern sense of the term, being rather akin to an action of tort. 
 In cases which were not capital such as assaults the right of 
 appeal indeed actually merged in an action of tort for damages, 
 but this did not take place in the case of murder, or more 
 serious offences, such as mayhem or robbery. 
 
 The accounts given in the older authorities of appeals for 
 murder leave no doubt whatever that they took their origin in 
 the primitive custom of vengeance of blood. The right of 
 exacting vengeance was a privilege as well as a duty, and 
 conferred by English, in the same way as by primitive Hebrew 
 Law, upon the nearest relative of the deceased. " If there be 
 anyone who would seek vengeance of the death by appeal 
 of felony, let the male, of whatsoever age he be, be received 
 before the female, and the next of blood .before one more 
 remote " (a). / 
 
 The execution of the sentence too was left to the relatives 
 of the murdered man. Blackstone tells us that it was an 
 ancient usage which lasted until the reign of Henry IV, for 
 the relatives of the slain to drag the appellee to the place of 
 execution. This was manifestly a survival of primitive usage 
 when the avenger of blood slew the murderer without any 
 formal trial whatsoever. 
 
 Originally the right of an injured party to an appeal had 
 priority to the King's right of proceeding by indictment. 
 The appellant, however, was obliged to sue within a year and 
 a day. Thus the laws of Edward I. provide that : — " As to 
 larcenies and robberies committed in time of peace, where the 
 offenders were not freshly pursued, the owners of the things 
 shall have their suit by appeal of felony within the year and 
 day, as in other felonies ; but after that time their right of 
 appeal shall cease, and the suit shall be ours. It is equally so 
 
 (a) Britton, liv. i., chap, ii., s. 7. See also Bracton, De Legibus Angliae, vol. ii., 
 p. 309. 
 
 H2 
 
100 Early English Criminal Law. [lect. vi. 
 
 within the year and day, if no other suit is commenced, and so 
 in all manner of felonies. And if the demandants bring their 
 suit in form of trespass, they shall be heard, if they have not 
 before commenced their suit in form of felony, in which case 
 they cannot, by withdrawing from their suit, deprive us of 
 ours. But where they have sued in form of trespass, although 
 our peace may have been broken, we will not prosecute" 
 (Britton, bk. i., ch. xxv., s. 6). 
 
 Previous to the statute 3 Hen. VII. cap. i. no person was 
 ever put on his trial by indictment at the suit of the King 
 until the year and the day had expired. And this appears to 
 have been the origin of the curious rule in our law that a man 
 cannot be indicted for murder, unless the death of the victim 
 has taken place within a year and a day of the date of his 
 receiving the fatal injury. The statute which enacted that 
 indictments at the suit of the King might immediately be 
 proceeded upon, and, before appeal brought, fully recognizes, 
 however, the right which the heir-at-law had at Common Law 
 to bring an appeal for the death of his ancestor, and prevent 
 the acquittal of the appellee from being an effectual bar to the 
 suit, though apparently a decision of the appeal in favour of 
 the appellee was a bar to a subsequent indictment. The 
 appellee was deprived of his right of trial by battle if there 
 existed a violent presumption of his guilt, as if in an appeal of 
 death, a man were taken with a bloody knife in his hand. 
 (Staunford, Pleas of the Crown, bk. iii. c. 13. p. 178). In 
 Bracton's time these presumptions led to immediate execution, 
 but in the time of Staunford they were only held to oust the 
 defendant of his wager of battle, and to compel him to put 
 himself upon the country, as if he were acoused by the King, 
 or by a person, such as a woman, or infant under fourteen years 
 of age, who in consequence of physical infirmity was unable to 
 wage battle against the appellee. 
 
 In the case of an appeal the right of pardoning always 
 rested with the appellant or plaintiff, not with the Crown. In 
 fact it is distinctly laid down in several oases that the Crown 
 
lect. vi.] Early English Criminal Law. 101 
 
 had no right of pardon. In the fifth year of Elizabeth's reign 
 in a case of Stroughborough v. Biggon (Moore, 571), an appeal 
 was brought by a wife for the murder of her husband. The 
 appellee was found guilty of manslaughter only. The question 
 in the case was, whether the general pardon could pardon the 
 burning in the hand, and, says the book, it was agreed that the 
 Queen could not pardon it, and that the pardon could not 
 operate thereon, because it was at the suit of the party. 
 Whereupon the appellee compounded the prosecution for forty 
 marks (see 3 Peere Williams, 453). 
 
 From the time of Elizabeth trial by appeal became practi- 
 cally obsolete. Two cases are mentioned as having been tried 
 in the reign of Charles I., but after that reign there were none 
 until at the end of the eighteenth century the practice was 
 revived by some antiquarian lawyers, who were possibly stimu- 
 lated thereto by the publication of Blackstone's Commentaries, 
 the first edition of which was published in 1765. At all events 
 we find that in the year 1770, an appeal was brought by one 
 Anne Bigby against Matthew Kennedy and Patrick Kennedy 
 for the murder of her husband. The case is fully reported in 
 5th Burrowes, at p. 2643. 
 
 " The following case of Bigby against the two Kennedyes," 
 says the reporter, " is of so peculiar a nature, and upon a subject 
 which occurs so very seldom, that I have been intentionally very 
 minute and circumstantial in describing the method and form of 
 proceeding in it ; as I conceive that it may not only be an 
 amusement to the curiosity of some readers, but may also be 
 useful as a precedent, and save the trouble of searching into 
 rule-books and records, whenever a future appeal shall happen 
 to be brought. ... As it is only a vindictive action, the pro- 
 ceedings are on the civil side of the court, and not the criminal, 
 though the defendants are pursued not only criminally, but 
 even capitally." 
 
 The case resulted in the escape of the defendants upon a 
 technical point, and there was no further attempt to revive the 
 practice until the year 1818, when the last instance of this 
 
102 Early English Criminal Lav). [lect. vi. 
 
 antiquated procedure was tried in our courts. One Abraham 
 Thornton had been tried on indictment for the rape and murder 
 of a girl named Ashford. Though a strong case was made 
 against him he was acquitted, owing to a flaw in the indict- 
 ment, but as this was no bar to an appeal an attempt was 
 made to bring him to justice by means of this form of action. 
 The case is fully reported in 1 Bamwall 8f Alderson's Reports at 
 page 405. The eldest brother and heir-at-law of the murdered 
 girl was plaintiff or appellant in the suit. The following is a 
 short sketch of the proceedings : — 
 
 The appellee (Thornton) having been brought into court and 
 placed at the bar, claimed by his plea the right of trial by battle. 
 He pleaded as follows. " Not guilty ; and I am ready to defend 
 the same by my body." And thereupon taking his glove off, 
 he threw it upon the floor of the court. The appellant (Ashford) 
 then put in a plea in reply stating strong circumstances of 
 suspicion against the appellee with a view to depriving him of 
 this right. This plea set out all the facts of the case, which 
 appear upon the statement to have been almost conclusive of 
 guilt. It concluded as follows : — 
 
 " And this, he, the said "W. A. is ready to verify when, where, 
 and in such manner as the Court here shall direct and award ; 
 wherefore he prays judgment, and that the said A. T. may not 
 be admitted to wage battle in this appeal against him, the said 
 W. A." The Court overruled this plea, and decided that the 
 appellee was entitled to his wager of battle and that he could 
 not be ousted of this right unless there existed such great and 
 violent presumptions of guilt as would admit of no denial or 
 proof to the contrary. " The general law of the land," said 
 Lord Ellenborough, C. J., " is in favour of the wager of battel, 
 and it is our duty to pronounce the law as it is, and not as we 
 may wish it to be. Whatever prejudices therefore may justly 
 exist against this mode of trial, still as it is the law of the land, 
 the Court must pronounce judgment for it" (1 B. & Aid., p. 460). 
 
 " This mode of proceeding, by appeal," says Mr. Justice 
 Bayley, " is unusual in our law, being brought, not for the 
 
lect. vi.] Early English Criminal Law. 103 
 
 benefit of the public, but for that of the party, and being a 
 private suit, wholly under his control. It ought therefore to be 
 watched very narrowly by the Court, for it may take place after 
 trial and acquittal on an indictment at the suit of the King ; 
 and the execution under it is entirely at the option of the party 
 suing, whose sole object it may be to obtain a pecuniary satis- 
 faction. One inconvenience attending this mode of proceeding 
 is, that the party who institutes it must be willing, if required, 
 to stake his life in support of his accusation. For the battel is 
 the right of the appellee at his election, unless he be excluded 
 from it by some violent presumption of guilt existing against 
 him" (1 B. & Aid., p. 457). 
 
 The " inconvenience attending this mode of proceeding " 
 was fully illustrated in this the last instance of it, for the appel- 
 lant declined the issue of battle. Whereupon the Court gave 
 judgment that the appellee should go without day, and a man 
 who in all probability had been guilty of a foul murder escaped 
 scot-free. In the following year the procedure by way of 
 appeal was wholly abolished by Act of Parliament (59 Geo. 
 III. cap. 46). 
 
 Nothing illustrates so forcibly the strong conservative 
 instinct of our law as the theoretical continuance, until the 
 present century, of this system, with its barbarous accompani- 
 ments of trial by battle and pecuniary compositions for crime. 
 It is astonishing how little alteration there was in English 
 Law between the times of Bracton and Blackstone ; less 
 probably than there has been during the last hundred years, 
 and this is true alike of Civil and Criminal Law. 
 
 True Criminal Law arose in England, as we have seen, in 
 proceedings by the Sovereign to avenge personal wrongs to 
 himself. By the fiction of a violation of his peace, whenever a 
 crime was committed, the Crown was enabled to prosecute every 
 offender, and in time it became the usual rule to do so, whether 
 there was any real breach of the peace or not. But j ust as the 
 procedure by way of appeal retained to the last the main features 
 which originally distinguished it, so our modern Criminal Law 
 
101 Early English Criminal Latv. [lect. vi. 
 
 retains in many respects, even to the present day, traces of its his- 
 torical origin. The test, for instance, whether a libel is a criminal 
 offence is still whether it tends to provoke a breach of the 
 peace (a). If it does not, it only gives rise to a civil action for 
 damages ; but if it does, even though it is not communicated to 
 any third person, but is contained in a letter addressed to the 
 person defamed, it is a matter for indictment, the theory of the 
 law being that it tends in that case to provoke a breach of the 
 peace as much as if it were published (b). For the same reason, 
 the truth of the libel is no defence to an indictment for publish- 
 ing it, although it is an answer to an action for damages. " The 
 greater the truth, the greater the libel " is the rule in criminal 
 matters ; and with good reason, for a defamatory statement 
 certainly tends all the more for its truth to provoke hostility ! 
 There are many other rules of Criminal Law which seem to 
 us so natural that we can scarcely conceive them otherwise, but 
 which owe their origin, as a matter of fact, to the accidental 
 circumstance that the Crown prosecutes in all criminal cases. 
 For instance, the general rule of English Law is that there is 
 no prescription in criminal matters — no limit of time within 
 which offences whether heinous or trifling must be prosecuted (c) . 
 This rule seems to us now so natural, that we are almost in- 
 clined to, treat with ridicule any proposal to introduce a period 
 of prescription into the Criminal Law ; yet when we come to 
 think of it, there does appear to be some unreasonableness in 
 allowing a man to be prosecuted for stealing an article, when 
 the article itself could not be recovered from him in a civil 
 action. Most writers upon jurisprudence advocate a rule of 
 prescription, at least as regards lesser offences (d). And in 
 
 (a) See Peg. v. Adams, 22 Q. B. D. 66. 
 
 (5) See 22 Q. B. D. at p. 68. 
 
 («) Curiously enough there is a statutory exception to this rule in the case of 
 treason. Prosecutions for treason must be commenced w ithin three years from the 
 commission of the offence, unless the treason consists of a designed assassination of 
 the Sovereign (7 & 8 Wm. in. c. 3). 
 
 (d) See for instance Bentham, Principles of Penal Code, chap, iii., and Bertauld, 
 Cours de Code Penal, Leeon 25. 
 
lect. vi.] Early English Criminal Law. 105 
 
 nearly every system of Criminal Law, except our own, the 
 principle of prescription is adopted. According to the Roman 
 Law, no crime could be prosecuted more than twenty years after 
 its committal, and there were shorter periods of prescription in 
 certain cases. According to the French Penal Code, the period 
 is fixed at ten years for crimes, three years for dilits, and one 
 year for contraventions (Arts. 637, 638, and 640). 
 
 The absence of a rule of prescription in our Criminal 
 Law is due altogether to a rigorous application of the maxim, 
 " nullum tempus occurrit regi." No time bars the King in seek- 
 ing for a remedy against his subjects. The moral aspect of the 
 question had apparently nothing to do with the matter, for we 
 find that in the case of appeals there was a strict limit of 
 a year and a day, within which the suit should be instituted. 
 
 Again, the right of pardon as a prerogative of the Crown 
 took its origin historically in the fact that the King was 
 supposed to be injured by a crime, and could therefore waive 
 his remedy. There was no right of pardon vested in the 
 Crown in the case of an appeal. " On an indictment which is 
 at the suit of the King," says Blackstone (a), "the King may 
 pardon and remit the execution ; on an appeal which is at the 
 suit of a private subject, to make an atonement for the private 
 wrong, the King can no more pardon it than he can remit the 
 damages recovered on an action of battery." The right of 
 pardoning in the case of an appeal rested with the prosecutor 
 not with the King. " As the King by his pardon may frustrate 
 an indictment, so the appellant by his release may discharge an 
 appeal" (b). 
 
 The curious offence of compounding a felony in our Law 
 appears also to have originated in the system of Royal prosecu- 
 tions. If a man forbears to prosecute a thief, upon being 
 restored his own goods again he is in the eye of the law guilty 
 of a criminal offence, punishable by fine and imprisonment, 
 though few would consider him guilty of any moral delin- 
 quency. It is no offence to compound a misdemeanour ; and such 
 
 (a) Commentaries, iv. 316. (b) Ibid. 
 
106 Early English Criminal Law. [lect. vi. 
 
 a course is frequently actually encouraged by the Judge before 
 whom the case is being tried. But misdemeanours are of 
 comparatively recent origin in our Criminal Law : felonies were 
 the crimes first recognized, and being offences against the King 
 personally, to compound a felony was to prevent the King 
 obtaining the redress to which he was entitled for the breach of 
 his peace. Every loyal subject was bound to assist him in 
 obtaining such redress. " To observe the commission of a 
 felony without using any endeavours to apprehend the offender 
 is a misprision" (1 Hale, P. C. 431), which was a wrong 
 to the King, just in the same manner as misprision of treason 
 or concealment of treasure-trove. 
 
 The doctrine of English Criminal Law, as regards the 
 consent of the injured person to the act charged, probably 
 arises in the same way. It is no defence to a prosecution for 
 murder that the deceased agreed to take the risk of, or even 
 consented to, his own death. Thus, if two men fight a duel, and 
 one kill the other, he is guilty of murder ; and it has been said 
 that if two persons agree to assist each other in committing 
 suicide, and one survives, he is guilty of murder (R. v. Dyson, 
 P. & R. 523). The breach of the King's peace, not the 
 wrong done to another person, is the gist of the crime. So, 
 also, suicide was considered in the old law to be felony, and 
 involved forfeiture of goods (Hawkins, P. C, chap. 27). Even 
 in the case of an assault, if the act amounts to a breach of the 
 peace, the consent of the person assaulted is no defence to the 
 indictment. 
 
 " Whatever may be the effect of a consent in a suit between 
 party and party, it is not in the power of any man to give an 
 effectual consent to that which amounts to, or has a direct 
 tendency to create, a breach of the peace, so as to bar a criminal 
 prosecution. In other words, though a man may by his consent 
 debar himself from his right to maintain a civil action, he 
 cannot thereby defeat proceedings instituted by the Crown in 
 the interests of the public for the maintenance of good order " 
 (per Hawkins, J., The Queen v. Coney, 8 Q. B. D., at p. 553). 
 
lect. vi.] Early English Criminal Law. 107 
 
 It would be easy to multiply instances showing the effect 
 which the history of our Criminal Law has had upon its 
 existing doctrines. It is impossible to understand this, or 
 indeed any branch of law, without some knowledge of its 
 history and origin. 
 
INDEX. 
 
 ^ITHELBEET : 
 
 laws of, as to bodily injuries, 80. 
 
 ALFKED : 
 
 laws of, quoted, 68, 77, 81, 82, 89. 
 
 ANALYTICAL METHOD : 
 disadvantages of, 4. 
 main defect of, 6. 
 
 ANCIENT LAWS : 
 
 not commands, but customs, 6. 
 
 ANGLO-SAXON LAW : 
 
 history of, continuous, 78. 
 
 origin of modern English Criminal Law in, 79. 
 
 principle of retaliation recognized by, 80. 
 
 system of pecuniary compensation in, 83. 
 
 as to violation of king's " tun," 34. 
 
 outlawry recognized by, 86. 
 
 system of frankpledge in, 90. 
 
 APPEALS : 
 
 nature and history of, 98. 
 
 Blackstone's account of, ib. 
 
 instances of, in reigns of Elizabeth and Charles I., 101. 
 
 last instance of, 102. 
 
 when abolished, 103. 
 
 AEBITKATION : 
 
 Sir H. Maine's theory of origin of law in, 24. 
 no trace of, in Hebrew Law, 48. 
 origin of, in Irish Law, 27, 28. 
 
110 Index. 
 
 ATTEMPTS : 
 
 how dealt with in Ancient Irish Law, 31. 
 
 AUSTIN : 
 
 his theory of law, 6. 
 
 — contrasted with historical view, 16. 
 
 AVENGKEE OF BLOOD : 
 
 his duty of exacting vengeance, 10, 43. 
 
 BLACKSTONE : 
 
 his commentaries referred to, 86. 
 his account of appeals, 98, 105. 
 
 BOOK OE AICILL: 
 
 account of, 18. 
 recognizes outlawry, 36. 
 
 BOOK OE LECAIN : 
 
 story from, showing optional nature of Eric Fine, 25. 
 
 BOT: 
 
 nature of, according to Early English Law, 83. 
 
 BEACTON" : 
 
 his " De Corona" referred to, 37, 86, 91. 
 his account of outlawry, 86. 
 frankpledge, 91. 
 
 BEEHON LAWS : 
 
 value of, in study of Ancient Law, 9, 17. 
 chief authorities of, 18. 
 principal features of, 21, 22. 
 punishment of homicide in, 22. 
 
 theft in, 30. 
 
 judicial functions of king, 32. 
 violation of king's peace, 34. 
 recognition of a " sanction" in, 35. 
 
 BEITTON : 
 
 his account of prosecution by the King, 96. 
 the right of appeal of felony, 99. 
 
Index. Ill 
 
 CANUTE : 
 
 laws of, as to murder, 80. 
 
 CAPITAL PUNISHMENT : 
 
 cause of its absence in Eoman Law, 60. 
 
 CHRISTIANITY : 
 
 influence of, on history of English Penal Law, 81, 89. 
 
 CICERO : 
 
 his account of the actio vi honorum raptorum, 66. 
 the degradation of criminal trials at Rome, 76. 
 
 CITIES OE REFUGE : 
 
 institution of, 45. 
 
 protection of, when permitted, 46. 
 
 CODE MOULTEKA : 
 
 of the Turkish Empire, 53. 
 
 COKE (Lord) : 
 
 his definition of murder, 96. 
 
 COMPOSITION EOR CRIMES : 
 
 system of, in Anglo-Saxon Law, 81. 
 
 COMPOUNDING: A FELONY : 
 why a crime ? 105. 
 
 CONSENT : 
 
 of person injured to, a crime, how far a defence, 106. 
 
 COUNTY COURTS : 
 
 origin of, among Anglo-Saxons, 15. 
 proclamation of sentence of outlawry in, 15, 86. 
 
 CRIMEN : 
 
 true meaning of term, 14. 
 
 CRIMES : 
 
 acts which became such in different legal systems, 15. 
 
 CRIMINAL LAW : 
 
 distinction between it and Penal Law, 1 . 
 
 subject matter of, 2. 
 
 modern growth of, 3, 15. 
 
 slow development of, in Roman system, 57. 
 
112 Index. 
 
 CEOWN : 
 
 prosecution by, in criminal matters, origin of, 93. 
 
 CUSTOM : 
 
 force of, among uncivilized nations, 10. 
 
 DAMAGES : 
 
 measure of, according to Soman Penal Law, 62. 
 
 in Eoman Law of contracts, 64. 
 
 according to English Law, 65. 
 
 DAMNUM INJURIA. Nature of action of, in Eoman Law, 66. 
 the first true action of tort at Eome, 70. 
 
 DATTG-HTEES : 
 
 right of inheritance of, among the Jews, 50. 
 
 loss of succession rights by marriage out of tribe, 31. 
 
 DAVIS (Sir John) : 
 
 denunciation of Eric Fines, 24. 
 
 DEATH FINE : 
 
 Homer's reference to, 10. 
 
 prevalence of, in different countries, 1 1 . 
 
 prohibition of, among the Jews, 44. 
 
 DECALOGUE : 
 
 its characteristics, 41. 
 
 DECUT : 
 
 the fine of blood, according to the Mohammedan Law, 54. 
 
 DELICTS : 
 
 four classes of, in Eoman Law, 66. 
 
 DEUTEEONOMT : 
 
 Book of, quoted, 44, 46, 47, 49, 50. 
 
 DIA: 
 
 death fine according to Mohammedan Law, 52, 53. 
 
 DIEE FINE : 
 
 equivalent to Eric Pine, 36. 
 
 DISTEESS : 
 
 universal remedy in Brehon Law, 21. 
 
Index. ] 13 
 
 DOLUS : 
 
 meaning of term, in Eoman Law, 62. 
 
 DU BOYS : 
 
 Histoire du Droit Criminal des Peuples Ifoderenes, quoted, 52. 
 DUBHTHACH MAC UA LUGAIE : 
 the royal poet of Erin, 18. 
 
 EDWAED I. : 
 
 laws of, as to appeals and crown prosecutions, 99. 
 ENGLISH CBIMINAL LAW: 
 
 private vengeance prevailed in, formerly, 9. 
 
 outlawry still theoretically recognized hy, 86. 
 
 distinguishing feature of modern, 93. 
 
 territorial limits of, 96. 
 EEIC FINE : 
 
 account of, in Ancient Irish Law, 22. 
 
 parallel to, in Eoman Law, 28. 
 
 levied on relatives, by Brehon Law, 29. 
 
 ETHELEED : 
 
 laws of, quoted, 89. 
 
 EXODUS : 
 
 Book of, quoted, 45, 49, 50. 
 
 EWALD: 
 
 his history of Israe,l quoted, 41. 
 
 his antiquities of Israel, quoted, 43, 44, 50. 
 
 FAMILY : 
 
 origin of liability of, to pay Eric Fine, 29. 
 how released from this responsibility, 30. 
 FATE OF THE CHILDEEN OF TUEENN: 
 story of, 25. 
 
 FITZHEEBEET'S ABEIDGEMENT : 
 
 referred to, 6. 
 FEANKPLEDGE : 
 
 account of system of, in Anglo-Saxon Law, 90. 
 FEENCH PENAL CODE : 
 
 rule as to prescription in, 105. 
 I 
 
114 Index. 
 
 FUIDHIE TENANTS : 
 
 position of, under Brehon Law, 38. 
 
 FUETUM MANTFESTUM : 
 
 importance of, in history of Penal Law, 67. 
 
 GAIUS : 
 
 his Institutes quoted, 61, 66. 
 
 GEEMAN LAW: 
 
 in ancient times, as to offences, 79. 
 
 GLANVILLE : 
 
 his list of " Pleas of the Crown," 96. 
 
 GEACCHUS : 
 
 his attempted reforms in Criminal Law, 76. 
 
 HEBEEW LAW : 
 
 non-progressive character of, 40. 
 
 leading idea of, 42. 
 
 as to murder, 43. 
 
 as to daughter marrying out of tribe, 31. 
 
 resort to cities of refuge, when allowed by, 46. 
 
 compensation for lesser injuries allowed by, 49. 
 
 private property recognized by, 49. 
 
 as to succession to property, 50. 
 
 as to theft, compared to Eoman Law, 50. 
 
 as to parental rights, 51. 
 
 HENEY I. : 
 
 laws of, as to killing in revenge, 80. 
 laws of, as to punishment for murder, 84. 
 
 HISTOEICAL METHOD : 
 advantages of, 3, 4. 
 errors to be avoided in, 7. 
 
 HOLMES (0. "W.) : 
 
 his Common Law referred to, 6, 7. 
 HOMEE : 
 
 reference to death fine in Iliad of, 10. 
 
Index. 115 
 
 HOMICIDE : 
 
 punishment of , according to XII. Tables, 11. 
 
 Brehon Law, 22. 
 
 Hebrew Law, 42. 
 
 Mohammedan Law, 53. 
 
 Eoman Law, 72. 
 
 Anglo-Saxon Law, 83. 
 
 HONOUE-PEICE : 
 
 in Ancient Irish Law, 23. 
 loss of, for crimes, 36. 
 
 ICELAND : 
 
 account of outlawry in, 14. 
 INA: 
 
 laws of, referred to, 6, 79, 83. 
 
 INDIAN SUCCESSION ACT : 
 
 its application to the Jews, 41. 
 INDICTMENT : 
 
 form of, as indicating its history, 94. 
 
 INJURIA : 
 
 definition of, according to Gaius, 61. 
 nature of action of, in Eoman Law, 70. 
 
 ILBEET (ME. C. P.) : 
 
 his article on Indian Codification quoted, 41. 
 
 INTENTION : 
 
 fine for, under Brehon Law, 32. 
 
 INTEENATIONAL LAW : 
 
 Comparison of, with Ancient Private Law, 34, 94. 
 
 IRELAND : 
 
 value of Brehon Laws in study of history of, 17. 
 
 JEWS: 
 
 laws of, characteristics, 40. 
 tenacity of, as regards their ancient customs, 41. 
 JOSHUA : 
 
 Book of, quoted, 46, 50. 
 
116 Index. 
 
 JUDICIAL PROCEEDING : 
 first germ of, 12. 
 
 absence of, originally in Jewish Law, 44. 
 first trace of, in Jewish Law, 46. 
 
 JURISPRUDENCE : 
 
 disadvantages of the analytical method of studying, 4. 
 
 JUSTINIAN" : 
 
 institutes of, quoted, 63. 
 
 KING: 
 
 judicial functions of, how far recognized by Brehon Law, 
 
 27, 32. 
 position of, in administration of Early Saxon Law, 82. 
 origin of his jurisdiction in criminal matters, 83. 
 
 KING'S PEACE : 
 
 technical use of term, origin of, 33. 
 
 recognized in Brehon Law, 34. 
 
 real origin of royal jurisdiction in criminal matters, 94. 
 
 KORAN : 
 
 provisions of, as to murder, 53. 
 accidental homicide, 54. 
 
 LAUGHLIN : 
 
 his Essays on Anglo-Saxon Law quoted, 79. 
 
 LECKY : 
 
 his History of England, in the Eighteenth Century quoted, 21. 
 
 LEGES CORNELIAE: 
 
 real origin of Criminal Law at Rome, 57. 
 
 de siccariis, 73. 
 
 different qucsstiones established by, 74. 
 
 LEGIS ACTIO SACRAMENTI : 
 of Roman Law, 28. 
 
 LEVITICUS : 
 
 Book of, quoted, 43. 
 
Index. 117 
 
 LEX AQTJILIA : 
 
 as to injuries to property, 66. 
 
 LEX CALPURNIA DE REPETUNDIS : 
 
 its importance in. the History of Roman Criminal Law, 
 57, 74. 
 
 LEX SALICA. 
 
 death fine recognized hy, 1 1 . 
 
 LIBEL : 
 
 Roman Law of, 70. 
 
 when a criminal offence, according to Modern English Law, 
 104. 
 
 LORD CAMPBELL'S ACT : 
 preamble quoted, 71. 
 
 MOHAMMEDAN LAW : 
 
 as to death fines, 29. 
 
 provisions of, as to crime generally, 51-55. 
 
 punishment for theft by, 54. 
 
 digest of, according to Imams, 54. 
 
 MAINE, (Snt Heney) : 
 
 his Ancient Law referred to, 3, 57, 77, 89. 
 Early Law and Custom, 13, 14, 78. 
 Early History of Institutions, 16-35. 
 
 MALICE : 
 
 meaning of, in English Criminal Law, 63. 
 
 MARLBRLDGE : STATUTE OF, 
 
 referred to, 85. 
 
 MASTER : 
 
 liability of, for negligence of his servant, origin, 4. 
 
 MOMMSEN : 
 
 his History of Rome quoted, 57, 74, 76. 
 
 MOSAIC LEGISLATION : 
 
 as regards murder, 44. 
 
118 Index. 
 
 MOYLE : 
 
 his account of private vengeance in Ancient Roman Law, 8. 
 
 original meaning of term poena, 14. 
 
 action of injuria, 70. 
 
 MURDER {see Homicide). 
 
 ROXm DEDITIO: 
 
 origin of, in Roman Law, 6. 
 traces of, in English Law, 6. 
 
 NOXAL ACTIONS : 
 
 in Roman Law, origin of, 5. 
 
 NUMBERS : 
 
 Book of, quoted, 42, 44, 46, 47, 60. 
 
 OBLIGATIONS EX DELICTO : 
 
 nature of, in Roman Law, 62-65. 
 
 OBLIGATIONS QUASI EX DELICTO, 65. 
 
 ORTOLAN : 
 
 his Histoire de la Legislation Romaine referred to, 60. 
 
 OUTLAWRY : 
 
 the first punishment imposed by society, 13, 37. 
 recognition of, in Brehon Laws, 35. 
 
 in Anglo-Saxon Laws, 86. 
 
 Bracton's account of, 87. 
 
 PALGRAVE (Sis F.) : 
 
 his Rise and Progress of the English Commonwealth quoted, 
 95. 
 
 PARDON : 
 
 right of, in case of appeals, 100. 
 
 origin of king's right of, in criminal matters, 105. 
 
 PATRICK (Saint) : 
 
 account of compilation of Senchus Mor by, 18, 19. 
 
 PECUNIARY SATISFACTION : 
 
 substituted for revenge, 10, 80. 
 
Index. 119 
 
 PENAL ACTIONS : 
 
 in English Law, 1. 
 in Roman Law, 63. 
 
 PENAL LAW : 
 
 distinction between it and Criminal Law, 1 . 
 systems of, compared, 7, 8. 
 
 PENAL LEGISLATION : 
 
 primitive ideas as to, 38. 
 
 PENTATEUCH : 
 
 its legal authority among the Jews at the present day, 42. 
 
 PERJURY : 
 
 not a crime according to Roman Law, 59. 
 
 PERSIA : 
 
 law of, as to murder, 29, 53. 
 
 PLEAS OE THE CROWN : 
 
 what were such originally, 96. 
 
 PLINY: 
 
 his Natural History referred to, 60. 
 
 P03NA: 
 
 original meaning of term, 14. 
 
 POLLOCK (SIR E.) : 
 
 his theory as to technical use of " King's peace," 33. 
 
 POSTE : 
 
 his edition of Graius referred to, 12, 67. 
 
 PRECINCT : 
 
 violation of, forbidden by Brehon Law, 34. 
 analogy to this rule in Anglo-Saxon Law, 94. 
 
 PRESCRIPTION : 
 
 absence of rule of, in English Criminal Law, 104. 
 rule of, according to French Law, 105. 
 Roman Law, 105. 
 
120 Index. 
 
 PRIVATE REVENGE: 
 
 earliest method of punishment, 8. 
 
 prevalence of, among the Jews, 43. 
 
 prevalence of, among the Anglo-Saxons, 80. 
 
 survival of system of, in Modern English Criminal Law, 82. 
 
 prohibited by Statute of Marlbridge {see Retaliation), 85. 
 
 QTLESTORES PARICLDH: 
 
 established by the XII. Tables, 72. 
 importance of their appointment, 73. 
 
 RELIGION : 
 
 its influence on law, 40. 
 
 RETALIATION : 
 
 the rule in all early societies, 8. 
 
 account of, in the Senohus Mor, 19. 
 
 how far recognized in Roman Law, 28, 61. 
 
 enjoined by Hebrew Law, 43. 
 
 allowed by the Koran, 52. 
 
 how regulated by Early German Law, 79. 
 
 RICKEY : 
 
 his introduction to the Brehon Laws quoted, 17, 22, 24, 32. 
 
 ROBBERY : 
 
 action for, in Roman Law, 66. 
 why instituted, 70. 
 
 ROMAN LAW : 
 
 noxal actions of, 5. 
 
 compared with Hebrew Law, 50. 
 
 slow development of notion of crime, in, 56. 
 
 non-religious character of, 59. 
 
 measure of damages in, 64. 
 
 history of actions of theft in, 66. 
 
 analogy to English Law in case of theft, 68. 
 
 severity of, as to debt, 69. 
 
 of homicide, 72. 
 
 causes of slow development of, Criminal Law in, 75. 
 
Index. 121 
 
 ROYAL JUSTICE : 
 
 germ of, in Brehon Laws, 33. 
 origin of, in English Law, 93. 
 
 SAGA OF GISLI THE OUTLAW : 
 
 quoted, in reference to outlawry, 14. 
 
 SAMUEL: 
 
 story of widow of Tekoah quoted from Book of, 43. 
 
 SANCTUARY : 
 
 no right of, according to Hebrew Law, 45. 
 
 SAXON LAW (see Anglo-Saxon Law). 
 
 SEMITIC RACES : 
 
 their tenacity of ancient customs, 42. 
 
 SENCHUS MOR: 
 
 account of, 18. 
 
 character of its contents, 20. 
 
 SINS: 
 
 how far punished as such, by Roman and English Criminal 
 
 Law, respectively, 59, 76. 
 punishment of, by Anglo-Saxon Law, 89. 
 
 SLAVE : 
 
 origin of master's liability for act of, 5. 
 
 SLAYERY : 
 
 influence of, in retarding the growth of Criminal Law at 
 Rome, 77. 
 
 SOVEREIGN (see King). 
 
 STAUNFORD : 
 
 his Fleas of the Crown referred to, 100. 
 
 STEPHEN (Sie J. Fitzjames) : 
 
 his History of Criminal Law referred to, 2, 9, 74, 90. 
 Digest of ditto, 7. 
 
 K 
 
122 Index. 
 
 SUCCESSION : 
 
 law of, among Jews of Aden, 41. 
 in Hebrew Law, generally, 50. 
 
 SULLA : 
 
 his legislation on criminal matters, 57, 58. 
 general account of, 74. 
 
 THEFT : 
 
 punishment of, how regulated by Roman Law, 12, 66. 
 
 how regulated by Ancient Irish Law, 31. 
 
 how regulated by Hebrew Law, 50. 
 
 comparison of Eoman and English Law of, 68. 
 
 TOET: 
 
 distinction between, and crime, 37. 
 
 different view of Ancient and Modern Law respecting, 60. 
 
 TEADITION : 
 
 its influence on the development of Mohammedan Law, 52. 
 
 TEIAL : 
 
 origin of, in Hebrew Law, 47. 
 (See Judicial investigation.) 
 
 TELBE : 
 
 liability of, for acts of its members, 30. 
 
 TEEBAL ASSEMBLY : 
 
 fixing of fines by, 12. 
 
 TUEKISH PENAL CODE : 
 
 provisions of, as to theft, 54. 
 as to murder, 53. 
 
 TWELVE TABLES : 
 
 provisions of, regarding homicide, 11, 72. 
 
 regarding bodily injuries, 28. 
 
 general character of, 59, 60. 
 
 establishment of Quastores Paricidii by, 72. 
 
Index. 123 
 
 VENGEANCE OF BLOOD : 
 among the Jews, 43. 
 
 VICARIOUS LIABILITY : 
 origin of, 5. 
 
 WAGER OE BATTLE : 
 nature of, 98. 
 when accused was deprived of his right to, 100. 
 
 WEE: 
 
 nature of, under Anglo-Saxon Law, 83. 
 
 WEREGELD : 
 
 cause of disappearance of, in England, 90. 
 
 WITE: 
 
 nature of, according to Anglo-Saxon Law, 83. 
 
 WITNESSES : 
 
 two necessary according to Hebrew Law, 47. 
 
 THE END. 
 
 Printed by Ponsonby and Weldkick, Dublin. 
 
J1L- 
 
 ■*■ — ' •• — T.fiinr..i.rTr~rt .