Page:American Journal of Sociology Volume 4.djvu/541

 CRIMINAL ANTHROPOLOGY AND JURISPRUDENCE 521

intimidation which was so prominent during the Middle Ages. The characteristic feature of this period may be said to differ from the retri- butive one in that the former consists in the desire for retributory punishment — the desire for indemnity for the past— while the pur- pose of the latter is to gain security for the future. This is the idea which divides the first period from the second.

This second period is characterized by a rapid growth of institu- tions and a marvelous development of community life. Crime became specifically defined in decrees and laws, and sovereignty attained its greatest height, while with it grew much of the oppression and unfair- ness which distinguished the administration of justice. In the first place, the state or sovereign had gained absolute control of the punish- ment of the criminal as a natural consequence of the solidarity of families and communities, and this exclusive right, theoretically at least, was administered in the interest of peace. From the keeping of the king's peace, therefore, grew the modern theory of the protection of society.

The procedure was distinguished by the most unjust proceedings, and the barbarous punishments and the cruelty of this period far exceed that of any other in the history of law. The sovereign or state was everywhere paramount, and individual rights, when in opposition to the sovereign, were not recognized. Death, torture, and mutilation were the penalties, and bills of attainder and numerous ingenious forms of summary proceedings existed. The union of church and state brought within the law a vast number of crimes, and persecution was a dominant feature of the legal system. The idea of reforming or "curing" the criminal was just dawning, and the belief was that it could be done by terrorizing or through intimidation. The extortion of confessions by means of torture, the ingenuity of which has never been surpassed, condemnation without trial, rules of evidence enabling convictions and making them possible without arraigning the accused, severe penalties for misdemeanors, and unrestrained capital punishment, were among the characteristics of this period. Crime was the willfui act of the individual, environment and heredity as factors in producing crime being unrecognized. The only question was as to the guilt of or the utility of removing the accused for political or personal reasons- No mitigating circumstances were possible. Insanity was confounded with religious beliefs, and made its possessors objects of persecution rather than furnished a defense. The number of capital offenses, including religious crimes, at one time in England exceeded 160, and