Page:Popular Science Monthly Volume 16.djvu/467

Rh has derived its strength from the considerations lying at the root of these Mosaic regulations. For although the absolute exclusion of violence from sacred precincts may have been originally suggested by religious sentiment, the widespread and tenacious application of the principle to criminal refugees must be mainly ascribed to the necessity so widely experienced of interposing obstacles to the avenger of blood; as is perhaps indicated by the circumstance that, as the exercise of avengement has been superseded by public prosecutions, the right of sanctuary has almost uniformly fallen into disrepute. Analogous in origin and aim to the right of sanctuary are the customs quite various and widely prevailing by which avengement has been prohibited during certain sacred seasons or occasions. Among the Swedes, for example, the Church contributed, as described by Geijer, to the abolition of blood-feuds by declaring all holidays and periods of some length at the great festivals consecrated to peace; and, ultimately, by throwing a similar protection over the sowing and harvest times. The Frisian was not to be molested by the avenger while going to or returning from church. There are some tribes of American Indians with whom all crimes except murder are buried in oblivion by the yearly sacrifice; so that the mention of them, or of any occurrence which brings them into recollection, is forbidden. If a Kenisteno chief wishes to settle any difference between his people, he announces his intention of opening his medicine-bag and smoking in his "sacred stem"; and no man who entertains a grudge against any of the party there assembled can smoke with the sacred stem.

The tenacity with which men clung to their right of personal retaliation can not be too strongly emphasized. When, by the demoralizing prevalence of feuds, society was first awakened to the necessity for taking measures to mitigate or suppress them, it is undoubtedly true that even if there had been a general willingness to abandon private revenge in favor of public prosecutions, the men of that period were incapable of either conceiving or executing so comprehensive a remedial scheme.

On the contrary, without any thought of the ultimate displacement of their revenge, they sought by various devices only to mitigate its excesses. But that displacement was made doubly difficult and the movement by which it was accomplished was in its details controlled by the stubbornness with which, even after comprehending the possibility of the new system, the people insisted upon adhering to their rights under the old. If further evidence or illustration of these truths is desired, it can be abundantly gathered from the sketch which it is now proposed to give of some of the steps by which societies, in their efforts to control the avenger and regulate avengement, were slowly and at first unconsciously led toward the cardinal doctrine of criminal jurisprudence, that it is the function of government to protect by suitable penalties its citizens in person and property from the violence and