Historical Law-Tracts. Henry Home, Lord Kames

      Incumbens arae, atque umbra complexa Penates.

      Hic Hecuba, et natae nequicquam altaria circum

      Praecipites atra ceu tempestate columbae

      Condensae, et Divum amplexae simulacra tenebant.

      Ipsum autem sumptis Priamum juvenilibus armis

      Ut vidit: Quae mens tam dira, miserrima conjux,

      Impulit his cingi telis? aut quo ruis? inquit.

      Non tali auxilio, nec defensoribus istis

      Tempus eget: Non, si ipse meus nunc afforet Hector.

      Huc tandem concede: Haec ara tuebitur omnes,

      Aut moriere simul. Sic ore effata, recepit

      Ad sese, et sacra longaevum in sede locavit.

      AENEID, l. 2. l. 512.¹⁴

      Altars prevailed also among Christians.¹⁵ Thus by the law of the Visigoths,^* if a murderer fly to the altar, the priest shall deliver him to the relations of the deceased, upon giving oath that, in prosecuting their revenge, they will not put him to death. Had the prosecutor, at this period, been bound to accept of a composition, the privilege of sanctuary would have been unnecessary.

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      <34> By this time, however, the practice of compounding for crimes had gained such authority, that it was thought hard, even for a murderer to lose his life by the obstinacy of the dead man’s relations. But this practice gaining still more authority, it was enacted in England,^* That if any guilty of a capital crime fly to the church, his life shall be safe, but he must pay a composition. Thus it appears, that the privilege of sanctuary, though the child of superstition, was extremely useful while the power of punishment was a private right: But now that this right is transferred to the public, and that there is no longer any hazard of excess in punishment, a sanctuary for crimes, which hath no other effect but to restrain the free course of the criminal law and to give unjust hopes of impunity, ought not to be tolerated in any society.

      When compositions first came in use, it is probable that they were authorised in slight delinquencies only. We read in the laws of the Visigoths,^† That if a free man strike another free man on the head, he shall pay for discolouring the skin, five shillings; for breaking the skin, ten shillings; for a cut which reaches the bone, twenty shillings; and for a broken bone, one hundred shillings: But that greater crimes shall be more severely punished; maiming, dismember-<35>ing, or depriving one of his natural liberty by imprisonment or fetters, to be punished by the lex talionis.^‡ But compositions growing more and more reputable, were extended to the grossest delinquencies. The laws of the Burgundians, of the Salians, of the Almanni, of the Bavarians, of the Ripuarii, of the Saxons, of the Angli and Thuringi, of the Frisians, of the Longobards, and of the Anglo-Saxons, are full of these compositions, extending from the most trifling injury, to the most atrocious crimes, not excepting high treason by imagining and compassing the death of the king. In perusing the tables of these compositions, which enter into a minute detail of the most trivial offences, a question naturally occurs, why all this scrupulous nicety of adjusting sums to delinquencies? Such a thing is not heard of in later times. The following answer will give satisfaction, That resentment, allowed scope among barbarians,

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      was apt to take flame by the slightest spark(5). <36> Therefore, to provide for its gratification, it became necessary to enact compositions for every trifling wrong, such as at present would be the subject of mirth rather than of serious punishment. For example, where the cloaths of a woman bathing in a river, are taken away to expose her nakedness;^* and where dirty water is thrown upon a woman as a mark of contumely.^† But as the criminal law is now modelled, private resentment being in a good measure sunk in public punishment, nothing is reckoned criminal, but what encroaches on the safety or peace of society; and such a punishment is chosen, as may have the effect of repressing the crime in time coming, without much regarding the gratification of the party offended.

      As these compositions were favoured by the resemblance that private punishment has to a debt, they were apt, in a gross way of thinking, to be considered as reparation to the party injured for his loss or damage. Therefore, in adjusting these compositions, no steady or regular distinction is made betwixt voluntary and involuntary acts.¹⁶ He who wounded or killed a man by chance, was liable to a composition;^‡ and even where a man was killed in self-defence, a <37> full composition was due.^|| A distinction was made by a law among the Longobards, enacting, That involuntary wrongs should bear a less composition than voluntary.^§17 And the same rule did no doubt obtain among other nations, when they came to think more accurately

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      about the nature of punishment(6). But such was the prevalency of resentment, that though at first no alleviation or excuse was sustained to mitigate the composition, aggravating circumstances were often laid hold of to enflame it. Thus he who took the opportunity of fire or shipwreck to steal goods, was obliged to restore fourfold.^* These compositions were also proportioned to the dignity of the persons injured; <38> and from this source is derived our knowledge of the different ranks and titles of honour among the barbarous nations above mentioned. And it is a strong indication of their approach to humanity and politeness, that their compositions for injuries done to women are generally double.

      As to the persons entitled to the composition, it must be obvious, in the first place, that he only had right to the composition who was injured: But if a man was killed, every one of his relations was entitled to a share, because they were all sufferers by his death. Thus, in the Salic laws,^† where a man is killed, the half of the composition belongs to his children; the other half to his other relations, upon the side of the father and mother. If there be no relations on the father’s side, the part that would belong to them accrues to the fisk. The like if there be no relations on the mother’s side. The Longobards had a singular way of thinking in this matter. Female relations got no part of the composition; and the reason given is, That they cannot assist in prosecuting revenge, Non possunt ipsam faydam levare.^‡ But women are capable of receiving satisfaction or atonement for a crime committed

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      against their relation, and <39> therefore are entitled in justice to some share of the composition(7).

      Before entering upon a new branch, I must lay hold of the present opportunity, to bestow a reflection on this singular practice of compounding for crimes. However strange it may appear to us, it was certainly a happy invention. By the temptation of money, men were gradually accustomed to stifle their resentment. This was a fine preparation for transferring the power of punishment to the magistrate, which would have been impracticable without some such intermediate step: for while individuals retain their privilege of avenging injuries, the passion of resentment, fortified by universal practice, is too violent to be subdued by the force of any government.

      We are now arrived at the last and most shining period of our history; which is, to unfold the means by which criminal jurisdiction, or the right of punishment, was transferred from private hands to the magistrate. There perhaps never was in government a revolution of greater importance. While criminal jurisdiction is engrossed by every individual for his own behoof, there must be an overbalance of power in the people, inconsistent with any stable administra-<40>tion of public affairs. The daily practice of blood, makes a nation fierce and wild, not to be awed by the power of any government. A government, at the same time, destitute of the power of the sword, except in crimes against the public which are rare, must be so weak, as scarce to be a match for the tamest people: for it cannot escape observation, that nothing tends more to support the authority of the magistrate, than his power of criminal jurisdiction; because every exercise of that power, being public, strikes every eye. In a country already civilized, the power of making laws may be considered as a greater trust: But in order to establish the authority of government, and to create awe and submission in the people, the power of making laws is a mere shadow, without the power of the