As an institution protected by the State, the administration of penal law everywhere grew up out of civil law. The judge who was appointed by the State to arbitrate personal controversies developed into a criminal judge. Still later these two judicial offices became distinct. This separation began in connection with the most serious offences, such as seemed to demand a separate tribunal. The determining feature, in this instance, was, at the outset, not any qualitative characteristic of the offence but its gravity. Now, at the time when deity cults were at their zenith, the most serious crimes were held to be those connected with religion, namely, temple sacrilege and blasphemy. Only at a relatively late period were crimes against life and limb classed along with those affecting religion; to these were added, shortly afterwards, violations of property rights. That murder, though the most frequent crime of early culture, should not be penalized by political authority until so late a period, is directly due to the fact that it has its origin in the strife of individuals. In such a strife, each man personally assumes all consequences, even though these consist in the loss of his life. Even to slay a man from ambush is regarded as justifiable by primitive society if an individual is avenging a crime from which he has suffered. As family and kinship ties become stronger, the family or kin participates as a group in the quarrels of its individual members, just as it does in war against hostile tribes. A murder, whether or not it be an act of vengeance, is avenged by a fellow-member of the victim, either upon the murderer or upon some one of his kin, inasmuch as in this case also the group is regarded as taking the part of the individual. This is the practice of _blood-revenge_, a practice which antedates the heroic age but which nevertheless continues to exercise a powerful influence upon it. Blood-revenge is so closely bound up with totemic tribal organization that it was probably never lacking wherever any such system arose. Its status, however, was purely that of a custom, not that of a legal requirement. It was custom alone, and not political authority, that compelled one kinsman to avenge the death of another. It was custom also that sought to do away with the disastrous results of a continuous blood-feud by means of an arrangement that came to take the place of blood-revenge. This substitute was the 'wergild,' which was paid as an indemnity by the malefactor to the family of the one who had been murdered, and which thus maintained precisely the same relation to blood-revenge as did marriage by purchase to marriage by capture. In the former case, however, the substitution of a peaceful agreement for an act of violence gave the political authority its first occasion to exercise its regulative power. This first manifestation of power consisted in the fact that the political authority determined the amount which must be paid in lieu of the blood-guilt. With the institution of wergild the entire matter becomes one of civil law. Only one further step is necessary, and the law of contract will indirectly have established the penal authority of the State. This step is taken when the State _compels_ the parties to enter into an agreement on the basis of the wergild. The advance, however, was not made at a single bound, but came only through the influence of a number of intermediate factors. That which first demanded a legal determination of the amount of expiation money was the necessity of estimating the personal value of the one who had been murdered, according as the individual was free-born or dependent, of a high or of a low class, an able-bodied man or a woman. Such a gradation in terms of general social status suggested the propriety of allowing temporary and less serious injuries to life and limb to be compensated for on the basis of their magnitude. But the estimation of damages in such cases again made civil jurisdiction absolutely necessary.
Closely interconnected with this complex of social factors, and imposing a check upon the impulse for vengeance that flames up in blood-revenge, was a religious influence--the fear of contaminating by a deed of violence a spot that was sanctified by the presence of invisible gods. No violence of any kind was allowed within sacred precincts, particularly in places set apart for sacrifice or for other cult ceremonies; least of all was violence tolerated in the temple, for the temple was regarded as the dwelling of a deity. Such places, therefore, afforded protection to all who fled to them from impending blood-revenge or other sources of danger. The sacred place also stood under the protection of the community; any violation of it brought down upon the offender the vengeance of the entire group, for the latter regarded such sacrilege as a source of common danger. Thus, the protection of the _sanctuary_ came to be a legal right even at a time when retribution for the crime itself was left to the vengeance of individuals. The right of protection afforded by the temple, however, was sometimes held to exist also in the case of the dwellings of persons of distinguished power and esteem, particularly the dwellings of the chief and of the priest. Indeed, prior to the existence of public temples, the latter were doubtless the only places of refuge. In this form, the beginnings of a right of refuge date back even into the totemic age. At that early time, however, the protection was apparently due, not so much to directly religious factors, as to the personal power of the individual who afforded the refuge, or also, particularly in Polynesia, to the 'taboo' with which the upper classes were privileged to guard their property. But, since the taboo was probably itself of religious origin, and since the medicine-man, and occasionally also the chief, could utilize demoniacal agencies as well as his own external power, even the very earliest forms of refuge were of the general nature of religious protection. In some cases, the right of refuge eventually became extended so as to be connected not only with the property set apart for the chief or the priest but also with the homes of inferior men. This, however, was a relatively late phenomenon. Its origin is traceable to the cult of household deities, first of the ancestral spirits who guard domestic peace, and then of the specific protective deities of the hearth by whom the ancestral spirits were supplanted. As a rule, it was not the criminal but the visiting stranger who sought the protection of the house. The right to hospitality thus became also a religiously sanctioned right to protection. The guest was no less secure against the host himself than against all others. The right of protection afforded by the house, therefore, should probably be interpreted as a transference of the right of refuge inherent in sacred precincts. The protective right of the chief was doubtless the beginning of what in its complete development came to be household right in general.
The divine protection afforded by the sanctuary obviously offers but a temporary refuge from the avenger. The fugitive again encounters the dangers of blood-revenge as soon as he leaves the sacred precincts. Nevertheless, the time that is thus made to elapse between the act and its reprisal tempers the passion of the avenger, and affords an opportunity for negotiations in which the hostile families or clans may arrange that a ransom be paid in satisfaction of the crime that was committed. Moreover, the chief or the temple priest under whose protection the fugitive places himself, is given a direct opportunity for mediating in the capacity of an arbitrating judge, and later, as the political power gradually acquires greater strength, for taking the measures of retribution into his own hands. Revenge, thus, is changed into punishment, and custom is displaced by the norm of law, which grows up out of repeated decisions in the adjudication of similar cases.
Sojourn in a place of refuge resembles imprisonment in that it limits personal freedom. One might, therefore, be inclined to suppose that, through a further development other than that described above, the sanctuary led to a gradual moderation of punishment by introducing the practice of _imprisonment_. Such a supposition, however, is not borne out by the facts. At the time when the transition from the place of refuge into the prison might have taken place, the idea of reducing the death penalty to the deprivation of freedom was still remote. The value which the heroic age placed on the life of the individual was not sufficiently high to induce such a change, and the enforcement of prison penalties would, under the existing conditions, have appeared difficult and uncertain. Hence imprisonment was as yet entirely unknown as a form of punishment. Though the State had suppressed blood-revenge, it showed no less an inclination than did ancient custom to requite not only murder but even milder crimes with death. Indeed, inasmuch as the peaceful mode of settlement by ransom gradually disappeared, it might be truer to say that the relentlessness of the State was even greater than that of blood-revenge. The oldest penal codes were very strongly inclined to impose death penalties. That the famous Draconian laws of Athens became proverbial in this respect was due merely to the fact that other ancient legal codes, though not infrequently more severe, were still unknown. The law of King Hammurabi punished by death any one who stole property belonging to the court or the temple, or even to one of the king's captains; the innkeeper who charged her guests extortionate prices was thrown into the water, and the temple maiden who opened a wine-shop was burned to death. Whoever acquired possession of stolen goods, or sheltered a runaway slave, was put to death, etc. For every crime that was judged to be in any way serious, and for whose expiation a money ransom was not adequate, the law knew only the one penalty, death. The earliest law made no use of custody except in connection with civil justice. The debtor was confined in the house of the creditor. This simply enforced the pledge involved in the shaking of hands at the time when the debt was contracted--an act by which the debtor vowed to be responsible for his debt with his own person.
The confinement of the debtor was at first a matter that was left to individuals, and its original sanction was custom; later, however, it came under the supervision of the legal system of the State. This suggested the adoption of confinement in connection with other crimes, in which the death penalty appeared too severe a punishment and the exaction of money one that was too light, as well, primarily, as too dependent upon the wealth of the guilty individual. Contributory to this change, was a practice which, similarly to confinement, was also originally an arrangement between individuals, and was rooted in custom. I refer to the holding of individuals as pledges, to the hostage, who gave security with his own person for the promise of another. The hostage is of the nature of a forfeit, guaranteeing in advance the fulfilment of the obligation. For this reason the holding of hostages came to be practised not merely in the case of property contracts but in connection with every possible obligation of a private or a public nature. This development was furthered by the fact that hostages came to be held in times of war, and, as a result, were given also upon the assumption of public duties. In both cases, custody changed from a private arrangement into a public concern. This change made it possible for a judge to impose the penalty of imprisonment whenever the transgression did not appear to warrant death. Imprisonment is a penalty that admits of no fewer degrees than does a fine, and has the advantage of being independent of the irrelevant circumstance of the wealth of the one who is condemned. Moreover, the restriction of arbitrary deprivations of freedom in favour of custody on the part of the political power, makes it possible to hold a suspect whose case requires examination before a judicial verdict can be given. Thus arises the practice of confinement during investigation, an incidental form of legal procedure which is influenced by, and in turn reacts upon, the penalty of imprisonment. Such confinement makes it possible to execute the penalty of imprisonment in the case of those whom investigation shows to be guilty. But this is not its only important result. It also leads to those barbarous methods which, particularly during the early stages of this development, are connected with the infliction of the punishment itself as well as with the preceding inquisitorial activities. The public administration of justice is still affected by the passion for vengeance which comes down from the earlier period of blood-revenge. To this coarser sense of justice a merely quantitative gradation of punishment is not satisfactory; the punishment must rather be made to correspond qualitatively with the crime that has been committed. Hence the many different modes of prison punishment--more numerous even than the modes of inflicting the death penalty--and of the means of torture, which are often conceived with devilish cunning. These means of torture come to be used also in the inquisitional procedure; the endeavour to force a confession causes them to become more severe, and this in turn reacts upon the punishment itself. On the whole, the ultimate tendency, of imprisonment was greatly to restrict the death penalty and thus to contribute to more humane methods of punishment. Nevertheless, it is impossible not to recognize that this result was preceded by an increasing cruelty. The fact that the prisoner was under the control of the punitive authority for a longer period of time led to a multiplication of the means of punishment. How simple, and, one might say, how relatively humane, was blood-revenge, satisfied as it was to demand life for life, in comparison with the penal law of the Middle Ages, with its methods of forcing confession by means of the rack and of various forms of physical suffering and of death penalties!
The same is true of a further change inaugurated by the passing of blood-revenge into punishment. This change likewise led to a decided restriction of the death penalty, yet it also, no less than the forcing of confession, brought upon penal justice the stigma of systematic cruelty. The assumption of penal power on the part of the public judiciary, in conjunction with the possession of unlimited control over the person and life of the malefactor, led to the adoption of a principle which long continued to dominate penal justice. This principle was drastically expressed in the Priests' Code of the Israelites, "Eye for eye, tooth for tooth." True, this _jus talionis_ was already foreshadowed in the custom of blood-revenge, and yet the simple form which it here possessed, 'a life for a life,' made it a principle of just retribution, and not a demand sharpened by hate and cruelty. In the case of blood-revenge, moreover, the emotions of revenge were moderated by virtue of the fact that considerations of property played a rôle. Requital was sought for the loss which the clan sustained through the death of one of its members. Hence the clan might be satisfied with a money compensation, or, occasionally, with the adoption either of a fellow-tribesman of the murderer or, indeed, even of the murderer himself. In contrast with this, even the most severe physical injuries, so long as they did not result in death, were originally always left to the retaliation of the individual. This retaliation was sought either in direct combat, or, in the heroic age proper, in a duel conducted in accordance with regulations of custom. All this is changed as soon as the State abolishes blood-revenge and assumes jurisdiction over cases of murder. In the event of personal injuries, the judge determines the sentence, particularly if the individual is unable for any reason to secure retaliation--having been rendered helpless, for example, through his injury, or being prevented by the fact of class differences. Under such circumstances it is but natural that the principle, 'a life for a life,' which has been borrowed from the institution of blood-revenge and has been applied to the punishment for murder, should be developed into a scale of physical punishment representing the more general principle 'like for like.' He who has destroyed the eye of another, must lose his own eye; whoever has disabled another's arm, must have his arm cut off, etc. Other injuries then came to be similarly punished, even those of a moral character to which the principle "eye for eye, tooth for tooth" is not directly applicable. The hand which has been implicated in an act of sacrilege, such as the commission of perjury, is to be cut off; the tongue which has slandered, must be torn out. Originally, the death penalty was employed all too freely. Hence this substitution of a physical punishment which spared the life of the offender was doubtless in the direction of moderation. But, since this substitution gave rise to cruelties that resulted in the infliction of various sorts of death penalties, preceded and accompanied by tortures, its original effect became reversed, just as in the case of imprisonment. Moreover, the two forms of punishment--imprisonment and death--and the degree to which these were carried to excess differed according to civilization and race. The _jus talionis_ was the older principle of punishment. It is more closely bound up with man's natural impulse for retaliation, and therefore recurs even within humane civilizations, sometimes merely in suggestions but sometimes in occasional relapses which are of a more serious sort and are due to the passion for revenge. In fundamental contrast with the Mosaic law, Christianity repudiated the requital of like with like. Perhaps it was the fear of violating its own principle that led it, in its later development, to seek in the cruelties of severe prison penalties a substitute for the repressed impulse to revenge which comes to expression in coarser conceptions of justice. Nevertheless, this substitution was superior to the inflexible severity of the _jus talionis_ in that it more effectively enabled milder customs to influence the judicial conscience.
But there is still another respect in which the recedence of the principle of retaliation gradually led to an advance beyond the legal conceptions characteristic of the heroic age. The command for strict retribution takes into consideration merely the _objective_ injury in which a deed results; to it, it is immaterial whether a person destroys another's eye accidentally or intentionally. The same injury that he has caused must befall him. Whoever kills a man must, according to the law of Hammurabi, himself suffer death; if he kills a woman, he is to be punished by the death of his daughter. If a house collapses, the builder who constructed it must suffer death. For a successful operation, the physician receives a compensation; if the operation fails, the hand that has performed it is cut off. The same law determines both reward and punishment. Moreover, it includes within its scope even intellectual and moral transgressions. The judge who commits an error is to be dismissed from office in disgrace; the owner who neglects his field is to be deprived of it.
