Page:Popular Science Monthly Volume 16.djvu/461

 sphere are absolute, and are rigorously exercised in the punishment of treason, cowardice, desertion, and military insubordination or inefficiency. This is the extent of their criminal law.

Acts of violence by one person upon the person or property of another are not punishable, since the suppression of such acts is not among the purposes for which such a government is organized. But, for the treasonable or military offenses of which they do take notice, penalties are imposed upon the true theory of criminal jurisprudence, to uphold the government or to aid its efficiency.

It is, therefore, in this class of offenses that criminal law must have had an early but meager origin under the military confederations to which the most primitive societies intuitively resort.

It might be supposed that communities thus familiarized with the punishment of crime by public authority would rapidly develop a criminal jurisprudence by the simple and direct process of adding from time to time new crimes, perhaps in the order of their supposed enormity, to their catalogue of offenses. There are some tribes so circumstanced as at first glance to countenance this view—tribes, for instance, which, while not taking cognizance of ordinary offenses, are known occasionally to prosecute notoriously hardened or habitual offenders against the persons or property of their fellows: the murderers of general favorites, obnoxious medicine-men, or persons guilty of grossly impious or sacrilegious acts, or acts involving the people in intertribal controversies.

But it will be observed that in none of these cases does the concerted action against the offenders proceed upon the notion that it is the function of government to protect its citizens against crime. It is induced in each case simply by a widely prevailing feeling of personal resentment or fear. The murderer of the popular favorite falls a victim not to any theory of government, but to the sense of individual injury and loss shared in common by all the members of the community. The habitual offender is pursued in some such spirit as that in which we shoot down a pirate; not as a violator of law, but as an acknowledged enemy of all mankind. The medicine-man, the sacrilegist, and the offender against neighboring tribes, fall victims to the terror they inspire, the one by his reputed affinity with the powers of darkness; the second by his provoking, as is supposed, an indiscriminate visitation of divine wrath; the third by subjecting all his fellows to the hostility of adjacent tribes. They are not so much punished as sacrificed: the first two to avert the wrath of Heaven; the third to appease the offended tribes. These sporadic and personally revengeful or propitiatory punishments throw little if any light on the development of the law of crimes. They are not an essential part of that movement—the most important, interesting, and difficult in the history of criminal jurisprudence—by which society abandoned its original assumption that acts of violence or fraud between individuals