Page:Popular Science Monthly Volume 16.djvu/469

Rh originated in Lacedæmonian theories of theft, and to have been handed down from ages when the crime of stealing was a small matter compared with the blunder of being found out. In other words, that the real crime consisted in being detected, and that hence, the longer detection was postponed and the more effectually the booty was disposed of or concealed, the lighter was the penalty imposed. Whatever may be said of the accuracy of this explanation, its ingenuity can not be denied.

On the other hand, Sir Henry Maine traces the widely discrepant penalties under consideration to a tendency, on the part of early administrators of justice, to "simulate" the probable acts of persons engaged in a private quarrel. "It is curious to observe," he says, "how completely the men of primitive times were persuaded that the impulses of the injured person were the proper measure of the vengeance he was entitled to exact, and how literally they imitated the probable rise and fall of his passions in fixing the scale of punishment."

Viewing these provisions of the Roman code in connection with other primitive laws, there can be no doubt that their scale of penalties was graduated, not with reference to the vengeance the injured party should be "entitled to exact," but with reference to the least amount of punishment by which, under given circumstances, he could probably be appeased. Pecuniary compositions for bloodshed, prevailing, as they presumably have, at some period in the history of every race, can not indeed be accounted for on any theory of punishment. They were conceived and established for purposes of pacification, apart from considerations of punishment or discipline. Blood for blood is an instinct of human nature; it is the justice which among every race was meted out with unsparing hand by the kindred of the slain when the burden and privilege of redress were upon them, and again by the state when she assumed the punishment of crimes. Pecuniary compositions prevailed only in the enforced absence of truly primitive remedies during that transition period when government was too wise to countenance the avenger, and not wise enough, or too feeble, to administer penal justice. It must be admitted that compulsory compositions, after they had superseded the practice of retaliation, came ultimately to be maintained with a view largely to the punishment and prevention of wrong-doing, and by a kind of inertia were carried over into periods capable of sustaining a true criminal law and already in the partial enjoyment of it. Even then, however, they proceeded upon our theory of damages against tort feasors. They were never at any time entitled to a place in the law of crimes. Returning from our digression, it is to be remarked that the adoption by the state of regulations for the control of parties at feud necessitated public prosecutions and punishments in order to insure their observance. One of the earliest methods of mitigating feuds was to