Ancient Law Chapter 10

on. Of this nature was the criminal jurisdiction of the Anglo-Saxon Witenagemot.

　　It may be thought that the difference which I have asserted to exist between the ancient and modern view of penal law has only a verbal existence. The community it may be said， besides interposing to punish crimes legislatively， has from the earliest times interfered by its tribunals to compel the wrong doer to compound for his wrong， and， if it does this， it must always have supposed that in some way it was injured through his offence. But， however rigorous this inference may seem to us now-a-days， it is very doubtful whether it was actually drawn by the men of primitive antiquity. How little the notion of injury to the community had to do with the earliest interferences of the State through its tribunals， is shown by the curious circumstances that in the original administration of justice， the proceedings were a close imitation of the series of acts which were likely to be gone through in private life by persons who were disputing， but who afterwards suffered their quarrel to be appeased. The magistrate carefully simulated the demeanour of a private arbitrator casually called in.

　　In order to show that this statement is not a mere fanciful conceit， I will produce the evidence on which it rests. Very far the most ancient judicial proceeding known to us is the Legis Actio Sacramenti of the Romans， out of which all the later Roman Law of Actions may be proved to have grown. Gaius carefully describes its ceremonial. Unmeaning and grotesque as it appears at first sight， a little attention enables us to decipher and interpret it.

　　The subject of litigation is supposed to be. in Court. If it is moveable， it is actually there. If it be immoveable， a fragment or sample of it is brought in its place； land， for instance， is represented by a clod， a house by a single brick. In the example selected by Gaius， the suit is for a slave. The proceeding begins by the plaintiff's advancing with a rod， which， as Gaius expressly tells， symbolised a spear. He lays hol

d of the slave and asserts a right to him with the words， "Hunc ego hominem ex Jure Quiritium meum esse dico secundum suam causam sicut dixi." and then saying， "Ecce tibi Vindictam imposui，" he touches him with the spear. The defendant goes through the same series of acts and gestures. On this the Praetor intervenes， and bids the litigants relax their hold， "Mittite ambo hominem." They obey， and the plaintiff demands from the defendant the reason of his interference， "Postulo anne dicas qua ex causa vindicaveris." a question which is replied to by a fresh assertion of right， "Jus peregi sicut vindictam imposui." On this， the first claimant offers to stake a sum of money， called a Sacramentum， on the justice of his own case， "Quando tu injuria provocasti， Daeris Sacramento te provoco，" and the defendant， in the phrase "Similiter ego te，" accepts the wager. The subsequent proceedings were no longer of a formal kind， but it is to be observed that the Praetor took security for the Sacramentum， which always went into the coffers of the State.

　　Such was the necessary preface of every ancient Roman suit. It is impossible， I think， to refuse assent to the suggestion of those who see in it a dramatisation of the Origin of Justice. Two armed men are wrangling about some disputed property The Praetor， vir pietate gravis， happens to be going by， and interposes to stop the contest. The disputants state their case to him， and agree that he shall arbitrate between them， it being arranged that the loser， besides resigning the subject of the quarrel， shall pay a sum of money to the umpire as remuneration for his trouble and loss of time. This interpretation would be less plausible than it is， were it not that， by a surprising coincidence， the ceremony described by Gaius as the imperative course of proceeding in a Legis Actio is substantially the same with one of the two subjects which the God Hephaestus is described by Homer as moulding into the First Compartment of the Shield of Achilles. In the Homeric trial-scene， the dispute， as if expressly intended to bring out the characteristics of primitive society， is not about property but about the composition for a homicide. One person asserts that he has paid it， the other that he has never received it. The point of detail， however， which stamps the picture as the counterpart of the archaic Roman practice is the reward designed for the judges. Two talents of gold lie in the middle， to be given to him who shall explain the grounds of the decision most to the satisfaction of the audience， The magnitude of this sum as compared with the trifling amount of the Sacramentum seems to me indicative of the indifference between fluctuating usage and usage consolidated into law. The scene introduced by the poet as a striking and characteristic， but still only occasional， feature of city-life in the heroic age has stiffened， at the opening of the history. of civil process， into the regular， ordinary formalities of a lawsuit. It is natural therefore that in the Legis Actio the remuneration of the Judge should be reduced to a reasonable sum， and that， instead of being adjudged to one of a number of arbitrators by popular acclamation， it should be paid as a matter of course to the State which the Praetor represents. But that the incidents described so vividly by homer， and by Gaius with even more than the usual crudity of technical language， have substantially the same meaning， I cannot doubt； and， in confirmation of this view， it may be added that many observers of the earliest judicial usages of modern Europe have remarked that the fines inflicted by Courts on offenders were originally sacramenta. The State did not take from the defendant a composition for any wrong supposed to be done to itself， but claimed a share in the compensation awarded to the plaintiff simply as the fair price of its time and trouble. Mr. Kemble expressly assigns this character to the Anglo-Saxon bannum or fredum.

　　An

cient law furnishes other proofs that the earliest administrators of justice simulated the probable acts of persons engaged in a private quarrel. In settling the damages to be awarded， they took as their guide the measure of vengeance likely to be exacted by an aggrieved person under the circumstances of the case. This is the true explanation of the very different penalties imposed by ancient law on offenders caught in the act or soon after it and on offenders detected after considerable delay some strange exemplifications of this peculiarity are supplied by the old Roman law of Theft. The Laws of the Twelve Tables seem to have divided Thefts into Manifest and Non-Manifest， and to have allotted. extraordinarily different penalties to the offence according as it fell under one head or the other. The Manifest Thief was he who was caught within the house in which he had been pilfering， or who was taken while making off to a place of safety with the stolen goods； the Twelve Tables condemned him to be put to death if he were already a slave， and， if he was a freeman， they made him the bondsman of the owner of the property. The Non-Manifest Thief was he who was detected under any other circumstances than those described； and the old code simply directed that an offender of this sort should refund double the value of what he had stolen. In Gaius's day the excessive severity of the Twelve Tables to the Manifest Thief had naturally been much mitigated， but the law still maintained the old principle by mulcting him in fourfold the value of the stolen goods， while the Non-Manifest Thief still continued to pay merely the double. The ancient lawgiver doubtless considered that the injured proprietor， if left to himself， would inflict a very different punishment when his blood was hot from that with which he would be satisfied when the Thief was detected after a considerable interval； and to this calculation the legal scale of penalties was adjusted. The principle is precisely the same as that followed in the Anglo-Saxon and other Germanic codes， when they suffer a thief chased down and caught with the booty to be hanged or decapitated on the spot， while they exact the full penalties of homicide from anybody who kills him after the pursuit has been intermitted. These archaic distinctions bring home to us very forcibly the distance of a refined from a rude jurisprudence. The modem administrator of justice has confessedly one of the hardest tasks before him when he undertakes to discriminate between the degrees of criminality which belong to offences falling within the same technical description. It is always easy to say that a man is guilty of manslaughter， larceny， or bigamy， but it is often most difficult to pronounce what extent of moral guilt he has incurred， and consequently what measure of punishment he has deserved. There is hardly any perplexity in casuistry， or in the analysis of motive， which we may not be called upon to confront， if we attempt to settle such a point with precision； and accordingly the law of our day shows an increasing tendency to abstain as much as possible from laying down positive rules on the subject. In France， the jury is left to decide whether the offence which it finds committed has been attended by extenuating circumstances； in England， a nearly unbounded latitude in the selection of punishments is now allowed to the judge； while all States have in reserve an ultimate remedy for the miscarriages of law in the Prerogative of Pardon， universally lodged with the Chief Magistrate. It is curious to observe how little the men of primitive times were troubled with these scruples， how completely they 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 p

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