Chapter 10. The Early History of Delict and Crime

The Teutonic Codes， including those of our Anglo-Saxon ancestors， are the only bodies of archaic secular law which have come down to us in such a state that we can form an exact notion of their original dimensions. Although the extant fragments of Roman and Hellenic codes suffice to prove to us their general character， there does not remain enough of them for us to be quite sure of their precise magnitude or of the proportion of their parts to each other. But still on the whole all the known collections of ancient law are characterised by a feature which broadly distinguishes them from systems of mature jurisprudence. The proportion of criminal to civil law is exceedingly different. In the German codes， the civil part of the law has trifling dimensions as compared with the criminal. The traditions which speak of the sanguinary penalties inflicted by the code of Draco seem to indicate that it had the same characteristic. In the Twelve Tables alone， produced by a society of greater legal genius and at first of gentler manners， the civil law has something like its modern precedence； but the relative amount of space given to the modes of redressing wrong， though not enormous， appears to have been large. It may be laid down， I think， that the more archaic the code， the fuller and the minuter is its penal legislation.

The phenomenon has often been observed， and has been explained， no doubt to a great extent correctly， by the Violence habitual to the communities which for the first time reduced their laws to writing. The legislator， it is said， proportioned the divisions of his work to the frequency of a certain class of incidents in barbarian life. I imagine， however， that this account is not quite complete. It should be recollected that the comparative barrenness of civil law in archaic collections is consistent with those other characteristics of ancient jurisprudence which have been discussed in this treatise. Nine-tenths of the civil part of the law practised by civilised societies are made up of the Law of Persons， of the Law of Property and of inheritance， and of the Law of Contract. But it is plain that all these provinces of jurisprudence must shrink within narrower boundaries， the nearer we make our approaches to the infancy of social brotherhood. The Law of Persons， which is nothing else than the Law of Status， will be restricted to the scantiest limits as long as all forms of Status are merged in common subjection to Paternal Power， as long as the Wife has no rights against her Husband， the Son none against his Father； and the infant Ward none against the Agnates who are his Guardians. Similarly， the rules relating to Property and Succession can never be plentiful， so long as land and goods devolve within the family， and， if distributed at all， are distributed inside its circle. But the greatest gap in ancient civil law will always be caused by the absence of Contract， which some archaic codes do not mention at all， while others significantly attest the immaturity of the moral notions on which Contract depends by supplying its place with an elaborate jurisprudence of Oaths. There are no corresponding reasons for the poverty of penal law， and accordingly， even if it be hazardous to pronounce that the childhood of nations is always a period of ungoverned violence， we shall still be able to understand why the modem relation of criminal law to civil should be inverted in ancient. codes.

I have spoken of primitive jurisprudence as giving to criminal law a priority unknown in a later age. The expression has been used for convenience' sake， but in fact the inspection of ancient codes shows that the law which they exhibit in unusual quantities is not true criminal law. All civilised systems agree in drawing a distinction between offences against the State or Community and offences against the Individual， and the two classes of injuries， thus kept apart， I may here， without pretending that the terms have always been employed consistently in jurisprudence， call Crimes and Wrongs， crimina and delicta. Now the penal law of ancient communities is not the law of Crimes； it is the law of Wrongs， or， to use the English technical word， of Torts. The person injured proceeds against the wrong-doer by an ordinary civil action， and recovers compensation in the shape of money-damages if he succeeds. If the Commentaries of Gaius be opened at the place where the writer treats of the penal jurisprudence founded on the Twelve Tables， it will be seen that at the head of the civil wrongs recognised by the Roman law stood Furtum or Theft. Offences which we are accustomed to regard exclusively as crimes are exclusively treated as torts， and not theft only， but assault and violent robbery， are associated by the jurisconsult with trespass， libel and slander. All alike gave rise to an Obligation or vinculum juris， and were all requited by a payment of money. This peculiarity， however， is most strongly brought out in the consolidated Laws of the Germanic tribes. Without an exception， they describe an immense system of money compensations for homicide， and with few exceptions， as large a scheme of compensations for minor injuries. "Under Anglo-Saxon law，" writes Mr. Kemble （Anglo-Saxons， i. 177）， "a sum was placed on the life of every free man， according to his rank， and a corresponding sum on every wound that could be inflicted on his person， for nearly every injury that could be done to his civil rights， honour or peace； the sum being aggravated according to adventitious circumstances." These compositions are evidently regarded as a valuable source of income； highly complex rules regulate the title to them and the responsibility for them； and， as I have already had occasion to state， they often follow a very peculiar line of devolution， if they have not been acquitted at the decease of the person to whom they belong. If therefore the criterion of a delict， wrong， or tort be that the person who suffers it， and not the State， is conceived to be wronged， it may be asserted that in the infancy of jurisprudence the citizen depends for protection against violence or fraud not on the Law of Crime but on the Law of Tort.

Torts then are copiously enlarged upon in primitive jurisprudence. It must be added that Sins are known to it also. Of the Teutonic codes it is almost unnecessary to make this assertion， because those codes， in the form in which we have received them，were compiled or recast by Christian legislators. But it is also true that non-Christian bodies of archaic law entail penal consequences on certain classes of acts and on certain classes of omissions， as being violations of divine prescriptions and commands. The law administered at Athens by the Senate of Areopagus was probably a special religious code， and at Rome， apparently from a very early period， the Pontifical jurisprudence punished adultery， sacrilege and perhaps murder. There were therefore in the Athenian and in the Roman States laws punishing sins. There were also laws punishing torts. The conception of offence against God produced the first class of ordinances； the conception of offence against one's neighbour produced the second； but the idea of offence against the State or aggregate community did not at first produce a true criminal jurisprudence.

Yet it is not to be supposed that a conception so simple and elementary as that of wrong done to the State was wanting in any primitive society. It seems rather that the very distinctness with which this conception is realised is the true cause which at first prevents the growth of a criminal law At all events， when the Roman community conceived itself to be injured， the analogy of a personal wrong received was carried out to its consequences with absolute literalness， and the State avenged itself by a single act on the individual wrong-doer. The result was that， in the infancy of the commonwealth， every offence vitally touching its security or its interests was punished by a separate enactment of the legislature. And this is the earliest conception of a crimen or Crime —— an act involving such high issues that the State， instead of leaving its cognisance to the civil tribunal or the religious court， directed a special law or privilegium against the perpetrator. Every indictment therefore took the form of a bill of pains and penalties， and the trial of a criminal was a proceeding wholly extraordinary， wholly irregular， wholly independent of settled rules and fixed conditions.

Consequently， both for the reason that the tribunal dispensing justice was the sovereign state itself and also for the reason that no classification of the acts prescribed or forbidden was possible， there was not at this epoch any Law of crimes， any criminal jurisprudence. The procedure was identical with the forms of passing an ordinary statute； it was set in motion by the same persons and conducted with precisely the same solemnities. And it is to be observed that， when a regular criminal law with an apparatus of Courts and officers for its administration had afterwards come into being， the old procedure， as might be supposed from its conformity with theory， still in strictness remained practicable； and， much as resort to such an expedient was discredited， the people of Rome always retained the power of punishing by a special law offences against its majesty. The classical scholar does not require to be reminded that in exactly the same manner the Athenian Bill of Pains and Penalties， or， survived the establishment of regular tribunals. It is known too that when the freemen of the Teutonic races assembled for legislation， they also claimed authority to punish offences of peculiar blackness or perpetrated by criminals of exalted station. Of this nature was the criminal jurisdiction of the Anglo-Saxon Witenagemot.

It may be thought that the difference which I have asserted to exist between the ancient and modern view of penal law has only a verbal existence. The community it may be said， besides interposing to punish crimes legislatively， has from the earliest times interfered by its tribunals to compel the wrong doer to compound for his wrong， and， if it does this， it must always have supposed that in some way it was injured through his offence. But， however rigorous this inference may seem to us now-a-days， it is very doubtful whether it was actually drawn by the men of primitive antiquity. How little the notion of injury to the community had to do with the earliest interferences of the State through its tribunals， is shown by the curious circumstances that in the original administration of justice， the proceedings were a close imitation of the series of acts which were likely to be gone through in private life by persons who were disputing， but who afterwards suffered their quarrel to be appeased. The magistrate carefully simulated the demeanour of a private arbitrator casually called in.

In order to show that this statement is not a mere fanciful conceit， I will produce the evidence on which it rests. Very far the most ancient judicial proceeding known to us is the Legis Actio Sacramenti of the Romans， out of which all the later Roman Law of Actions may be proved to have grown. Gaius carefully describes its ceremonial. Unmeaning and grotesque as it appears at first sight， a little attention enables us to decipher and interpret it.

The subject of litigation is supposed to be. in Court. If it is moveable， it is actually there. If it be immoveable， a fragment or sample of it is brought in its place； land， for instance， is represented by a clod， a house by a single brick. In the example selected by Gaius， the suit is for a slave. The proceeding begins by the plaintiff's advancing with a rod， which， as Gaius expressly tells， symbolised a spear. He lays hold of the slave and asserts a right to him with the words， "Hunc ego hominem ex Jure Quiritium meum esse dico secundum suam causam sicut dixi." and then saying， "Ecce tibi Vindictam imposui，" he touches him with the spear. The defendant goes through the same series of acts and gestures. On this the Praetor intervenes， and bids the litigants relax their hold， "Mittite ambo hominem." They obey， and the plaintiff demands from the defendant the reason of his interference， "Postulo anne dicas qua ex causa vindicaveris." a question which is replied to by a fresh assertion of right， "Jus peregi sicut vindictam imposui." On this， the first claimant offers to stake a sum of money， called a Sacramentum， on the justice of his own case， "Quando tu injuria provocasti， Daeris Sacramento te provoco，" and the defendant， in the phrase "Similiter ego te，" accepts the wager. The subsequent proceedings were no longer of a formal kind， but it is to be observed that the Praetor took security for the Sacramentum， which always went into the coffers of the State