Page:Popular Science Monthly Volume 16.djvu/462

436 are purely private grievances to be redressed by private remedies, and charged government with the function of protecting its citizens from such wrongs through proceedings conducted and punishments administered in its own name. The secret of that movement and the influence by which its progress was shaped can be gathered only from study of the antecedent practice of private retaliation. For both by its weakness and its strength the old system exercised a controlling influence over the development of the new. It was at once the chief inducement to the change and the chief obstacle to its accomplishment. In so far as public authority assumes by penal remedies to protect individuals from the criminal acts of one another, it was first called into existence, not by ordinary wrong-doing, but by an effort to restrain the abuses and excesses of retaliation as a remedial system. Its subsequent extension so as to displace the avenger and assume the punishment of wrong-doers generally was an afterthought. Thus the movement had its origin in a desire rather to mitigate punishments than to insure or increase them.

That this was true in the history of the Germanic tribes was long ago pointed out by Montesquieu with characteristic learning and ingenuity in his "Spirit of the Laws." He regarded it, however, as an experience peculiar to the Germans: to use his own language, "as contrary to the practice of all other nations." In this he was mistaken. The Germanic line of progress in criminal law, as it was pointed out by Montesquieu, instead of being unique, is substantially that which must have been pursued by all primitive communities with possibly rare and insignificant exceptions. Not only is this proposition justified by an examination of the actual processes of legal development among all races presenting the materials requisite for such an inquiry, but an analysis of the inducing causes among the Germans of this phase in their legal development will show them to have been such as were universally prevalent among mankind, and such as must have operated with remarkable uniformity.

It is to the illustration of these propositions that this paper will be mainly devoted. So far was the practice of private retaliation from being a preservative against crime, that it universally propagated more violence than it restrained. Under the most favorable circumstances, its punishments, being administered without an authoritative proceeding for the ascertainment of guilt, must frequently have fallen upon those who either were in fact, or by their relatives were thought to be, innocent. From this single infirmity of the system there must have arisen great numbers of bloody feuds, each having a tendency to propagate itself through generations. It also appears that, even in cases of acknowledged guilt, it was the custom in some communities for the family of an offender to protect him against the avenger, and to resent an attack upon him as an original injury. A family feud must then have inevitably ensued from every wrongful act of violence.