Page:The American Cyclopædia (1879) Volume V.djvu/491

 CRIMINAL LAW 487 dividuals. There was a general amelioration of the laws by the operation of these different provisions. As there was no arrest until sen- tence had been pronounced, the judgment could be evaded by going into voluntary exile, and the interdiction of fire and water (i. e., exile) became the extreme limit of judicial severity even upon conviction in capital cases. A new administration of criminal law was, however, introduced with the imperial govern- ment. The senate was made the instrument of imperial power for the condemnation of criminals charged with offences against the state; and the ordinary magistrates became invested with powers which under the republic had been reserved to the people, either in the comitia or in the popular body ofjudices, who sat with the pra3tor. Any Roman citizen might be a public accuser and prosecute crimi- nal actions, but it seems not to have been usual, except when some political object was sought, or where the accuser had some relationship to the injured party, either by blood or profes- sionally, as in the case of patron and client. It was a peculiarity of the Roman criminal law that, however mild it became in respect to free citizens, it was enforced against slaves and foreigners with all the stringency of its ancient severity. The laws of the Germanic nations equally illustrate the propositions above stated, and especially the absence of all classification of crimes, and the disproportion of penalties to the different degrees of moral turpitude. The Salic law contained 343 penal articles, and only 65 on all other subjects. Of the penal laws, 150 related to cases of robbery, 74 of which referred to the stealing of animals; cases of violence against the person were the subjects of 113 articles, of which 30 related to mutila- tion of the person, and 24 to violence against women. The want of generalization is noticed by Guizot, as proving defect of intellectual de- velopment and the precipitation of the legisla- tor in enacting laws : " Every case of robbery, of violence in the very fact, is taken hold of in order to immediately inflict a penalty ; and there was no idea but of adding a new article of law whenever a new crime was committed, however trifling its difference from those which had been already provided for." Yet these laws present the same contrast that we have seen in the Roman, in the mildness of the pen- alties inflicted upon free men, and the cruelty of the punishments to which the slaves and even bond laborers (coloni) were subject. Com- position (wehrgeld or wiedergeld), a pecuniary mulct, was the penalty enforced upon a free man, varying in amount with the atrocity of the offence ; but upon slaves and laborers tor- tures and death were freely inflicted. Similar provisions were contained in the laws of the Ripuarian Franks, the Burgundians, and the Anglo-Saxons. It was, however, understood that the injured party had a right to refuse composition, and to seek satisfaction by his own hand ; which last alternative was regu- lated by certain rules, and hence received the designation of judicial combat. This was a peculiar feature of the Germanic law, and was not confined to criminal cases, but became a common mode of deciding questions of fact even in civil suits ; and the right was recipro- cal, that is to say, either party had the right to call the other to a decision of the contro- versy by combat. So either party had the right to challenge witnesses, and even judges, to combat, upon the allegation that the testi- mony was untrue or the judgment unjust. Montesquieu maintains that the judicial com- bat was introduced as a natural consequence of what he calls negative proof, that is, the denial of the charge by the party under oath, which was a purgation in criminal cases, and was also admitted in civil cases with the addition of the oaths of a certain number of others, called conjuratores or compurgatores, who merely deposed that they believed the party. The defect of this kind of proof, as well as of the other mode of determining facts, viz., by ordeal, rendered the trial by combat a necessity; at least it was far more satis- factory to the rude minds of that period than either of the others, in which perjury and de- ception were palpable. Another mode, which was much in vogue among the Anglo-Saxons, and which was maintained for a long period in the English law, was the compurgation be- fore alluded to. Whether the compurgators were the same as the sectatores spoken of in the Saxon laws is uncertain. It has been sup- posed by some writers that they had a func- tion somewhat similar to that of the juratores of a subsequent period. In one respect they were alike, inasmuch as they stated upon oath their opinion of the case, which opinion was not founded upon evidence, but upon some pri- vate knowledge which they were supposed to have of the matter in controversy. The pro- ceeding by compurgators was called wager of law, which took the name from the formality of giving gage or security that the party would at a certain day make his law, that is, that he would take an oath and bring 11, or as some authorities say 12, compurgators to swear that they believed him. In modern practice it seems to have been admitted only in an action of debt, instances of which may be seen in 2 Salk., 682, and 2 Barn, and Cress., 538 ; but at the period of which we speak it was a method of proceeding in criminal as well as civil cases. The juratores appear to have been in the first instance charged with the preliminary inquiry as to the guilt of any person charged with cer- tain crimes, and upon their finding him guilty he was put to the ordeal or compurgation. This seems to have been the practice in the reign of Henry II. But we learn from Bracton, who wrote in the reign of Henry III., that the practice then was to commit the decision of the case finally to the jury, unless there was a demand of combat by one of the parties, or unless the defendant elected to wage his law.