Page:Popular Science Monthly Volume 16.djvu/468

 fraud of one another. "In order that revenge might not continually generate new revenge," says the historian of the Swedes, "the law essayed its earliest exercise of authority in reconcilement." At a time when murder was a purely private wrong, of which government took no cognizance, and the right of retaliation was thought too sacred for government to deny, the public interested itself only by discouraging revenge through the agency of public opinion, and by inviting and recommending pecuniary compositions with wrong-doers at rates which were usually fixed by law or custom, without, however, assuming to coerce either party into a settlement. Under such circumstances, if the avenger accepted the sum fixed by law as the price of composition, and afterward also took his revenge, this, as Montesquieu says, referring to the law of the Lombards, contained a public as well as a private offense; was a contempt of the law itself—a crime which the legislators never failed to punish. Later, the law, in order to avert feuds, declared it a crime to refuse to offer or accept pecuniary composition for murder. Government, while it had not yet undertaken to prevent or punish ordinary murders or larcenies, had been driven to apply itself to the suppression of feuds; and the withholding or rejection of composition money tending to defeat its efficient discharge of that function had the properties of a true crime, and was promptly recognized and punished as such. That pecuniary compositions for bloodshed were everywhere first made obligatory, rather to avert feuds than to punish wrong-doers, is attested by a great variety of circumstances. For instance, in fixing the amount to be paid in composition, the chief and usually the sole question or criterion seems to have been, What sum will offer to the avenger a sufficient inducement to forego his revenge? Rotharis, in the law of the Lombards, declares that he had increased the compositions anciently accustomed for wounds, to the end that, the wounded person being satisfied, all enmities should cease. Upon the same principle is to be explained the well-known tendency of early laws to adjust their penalties with principal regard to the aggrieved person's probable degree of exasperation at the time of detecting the wrong-doer.

The law of the Allemans, which, while undertaking to enforce compositions for stale offenses, conceded to injured parties the privilege of righting themselves on the spot and in the first transport of passion, finds a counterpart in the curious and yet under the circumstances perfectly natural distinction made in the Twelve Tables between manifest and non-manifest theft. Persons detected in the act of stealing, or with the booty in their possession, wore liable to the punishment of death if slaves, and, if freemen, became thereby the bondmen of the owner of the property; while, if detected under other circumstances, they were only obligated to refund double the value of the stolen property. The marked incongruity, from a modern standpoint, of these two punishments was supposed by Montesquieu to have