iiiil . Ala THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA RIVERSIDE THE CONTINENTAL LEGAL HISTORY SERIES Volume Six A HISTORY OF CONTINENTAL CRIMINAL LAW The Continental Legal History Series PuhUslied under the auspices of the Association of American Law Schools I. A GENERAL SURVEY OF EVENTS, SOURCES, PERSONS, AND MOVEMENTS IN CONTINENTAL LEGAL HISTORY. By Various Authors. Translated by Rapelje Howell, F. S. Philbrick, John Walgren, and John H. Wigmore. S6.00 net. XL GREAT JURISTS OF THE WORLD, FROM PAPINIAN TO VON IHERING. By Various AuVhors. Illustrated. (E.xtra vol- ume. By arrangement with John Murray, London.) $5.00 net. in. HISTORY OF FRENCH PRIVATE LAW. By J. Brissaud, late of the University of Toulouse. Translated by Rapelje Howell, of the New York Bar. $5.00 net. IV. HISTORY OF GERMANIC PRIVATE LAW. By Rudolph Huebner, of the University of Rostock. Translated by Dr. Francis S. Philbrick, of New York, N. Y. $4.50 net. V. HISTORY OF CONTINENTAL CRIMINAL PROCEDURE. By A. EsMEiN, Profe.ssor in the University of Paris, with chapters by Francois Garraud, of the University of Lyon, and C. J. A. Mitter- MAiER, late of the University of Heidelberg. Translated by John Simpson, of the New York Bar. $4.50 net. VI. HISTORY OF CONTINENTAL CRIMINAL LAW. By Luowia VON Bar, of the University of Göttingen. Translated by Thomas S. Bell, of the Tacoma Bar. $4.00 net. VII. HISTORY OF CONTINENTAL CIVIL PROCEDURE. By Arthur Engelmann, Chief Justice of the Court of Appeals at Breslau, with a chapter by E. Glasson, late of the University of Paris. Trans- lated by Robert W. Millar, of Northwestern University. $4.00 net. VIII. HISTORY OF ITALIAN LAW. By Carlo Calisse, of the Italian Council of State. Translated by John Lislp:, late of the Philadel- phia Bar. $5.00 net. IX. HISTORY OF FRENCH PUBLIC LAW. By J. Brissaud, late of the University of Toulouse. Translated by James W. Garner, of the University of Illinois. .?4.50 net. X. HISTORY OF CONTINENTAL COMMERCIAL LAW. By Paul Huvelin, of the University of Lyon. Translated by Ernest G. Lorexzex, of the University of Wisconsin. 85.50 net. XL THE PROGRESS OF CONTINENTAL LAW IN THE 19TH CENTURY. By A. Alvarez, L. Duguit, J. Charmont, E. Ripert, and others $5.00 net. THE CONTINENTAL LEGAL HISTORY SERIES Published under the auspices of the ASSOCIATION OF AMERIC.\N LAW SCHOOLS A HISTORY OF CONTINENTAL CRIMINAL LAW BY CARL LUDWIG von BAR LATE PROFESSOR OF LAW IX THE UNIVERSITY OF GÖTTINGEN AND OTHERS TRANSLATED BY THOMAS S. BELL OF THK LOS ANGELES BAR AND OTHERS WITH AN EDITORIAL TREFACE BY JOHN II. WIGMORE PROFESSOR OF LAW IN NORTHWESTERN UNIVERSITY AND INTRODUCTIONS BY WILLIAM RENWICK RIDDELL JUDGE OF THE HIGH COURT OF JUSTICE FOR ONTARIO AND UY EDWIN R. KEEDY PROFESSOR OF LAW IN THE UNIVERSITY OF PENNSYLVANIA BOSTON LITTLE, BROWN, AND COMPANY 19IG B37, Copyright, 1916, By Little, Brown, and Compant. All rights reserved EDITORIAL COMMITTEE OF THE ASSOCIATION OF AMERICAN LAW SCHOOLS Joseph H. Drake, Professor of Law in the University of Michigan. Ernst Freund, Professor of Law in the University of Chicago. Ernest G. Lorenzen, Professor of Law in the University of Minnesota. Wm. E. Mikell, Professor of Law in the University of Penn- sj'lvania. John H. Wigmore, Chairman, Professor of Law in Northwestern University. LIST OF TRANSLATORS Thomas S. Bell, of the Los Angeles Bar. James W. Garner, Professor in the University of IlHnois. Rapelje Howell, of the New York Bar. John Lisle, of the Philadelphia Bar. Ernest G. Lorenzen, of the Editorial Committee. Robert W. Millar, of the Chicago Bar, Professor of Law in Northwestern University. Francis S. Philbrick, of the New York Bar. Layton B. Register, Lecturer on Law in the University of Pennsylvania. John Simpson, of New York. John Walgren, of the Chicago Bar. John H. Wigmore, of the Editorial Committee. I might instance in other professions the obligation men lie under of applying themselves to certain parts of History; and I can hardly for- bear doing it in that of the Law, — in its nature the noblest and most beneficial to mankind, in its abuse and debasement the most sordid and the most pernicious. A lawyer now is nothing more (I speak of ninety- nine in a hundred at least), to use some of Tully's words, "nisi leguleius quidcm cautus, et acutus praeco actionum, cantor fornmlarum, auceps syllal^arum." But there have been lawyers that were orators, philoso- phers, historians: there have been Bacons and Clarendons. There will be none such any more, till in some betten* age true ambition, or the love of fame, prevails over avarice; and till men find leisure and encourage- ment to prepare themselves for the exercise of this profession, by climl> ing up to the vantage ground (so my Lord Bacon calls it) of Science, instead of grovelling all their lives below, in a mean but gainful apjjlica- tion of all the little arts of chicane. Till this happen, the profession of the law will scarce deserve to be ranked among the learned professions. And whenever it happens, one of the vantage grounds to which men must climb, is Metaphysical, and the other, Historical Knowledge. Hexry St. Joiix, Viscount Bolingbroke, Letters on the Study of History (1739). Whoever brings a fruitful idea to any branch of knowledge, or rends the veil that seems to sever one portion from another, his name is written in the Book among the builders of the Temple. For an English lawyer it is hardly too much to say that the methods which Oxford in\-ited Sir Henry Maine to demonstrate, in this chair of Historical and Comparative Jurisprudence, have revolutionised our legal history and largely trans- formed our current tex-t-books. — Sir Frederick Pollock, Bart., The History of Comparative Jurisprudence (Farewell Lecture at the Univer- sity of Oxford, 1903). No piece of History is true when set apart to itself, divorced and iso- lated. It is part of an intricately pieced whole, antl must needs be put in its place in the netted scheme of events, to receive its true color and estimation. We are all partners in a common undertaking, — the illumi- nation of the thoughts and actions of men as associated in society, the life of the human spirit in this familiar theatre of cooperative effort in which we play, so changed from age to age, and yet so much the same throughout the hurrying centuries. The day for synthesis has come. No one of us can safely go forward without it. — Woodrow Wilson, The Variety and Unity of History (Address at the World's Congress of Arts and Science, St. Louis, 1904). A lawyer without history or literature is a mechanic, a mere working mason ; if he possesses some knowledge of these, he may venture to call him- self an architect. — Sir Walter Scott, "Guy Mannering," c. XXXVII. CONTINENTAL LEGAL HISTORY SERIES GENERAL INTRODUCTION TO THE SERIES "All history," said the lamented master Maitland, in a memo- rable epigram, " is but a seamless web ; and he who endeav'ors to tell but a piece of it must feel that his first sentence tears the fabric." This seamless web of our own legal history unites us inseparably to the history of Western and Southern Europe. Our main interest must naturally center on deciphering the pattern which lies directly before us, — that of the Anglo-American law. But in tracing the warp and woof of its structure we are brought inevi- tably into a larger field of vision. The story of Western Continental Law is made up, in the last analysis, of two great movements, racial and intellectual. One is the Germanic migrations, planting a solid growth of Germanic custom everx^where, from Danzig to Sicily, from London to Vienna. The other is the posthumous power of Roman law, forever resisting, struggling, and coalescing with the other. A thousand detailed combinations, of varied types, are developed, and a dozen distinct systems now survive in independence. But the result is that no one of them can be fully understood without surveying and tracing the whole. Even insular England cannot escape from the web. For, in the first place, all its racial threads — Saxons, Danes, Normans — were but extensions of the same Germanic warp and woof that was making the law in France, Germany, Scandinavia, Nether- lands, Austria, Switzerland, Northern Italy, and Spain. And, in the next place, its legal culture was never without some of the same intellectual influence of Roman law which was so thoroughly overspreading the Continental peoples. There is thus, on the one hand, scarcely a doctrine or rule in our own system which can- not be definitely and profitably traced back, in comparison, till we come to the point of divergence, where we once shared it in common with them. And, on the other hand, there is, during all the intervening centuries, a more or less constant juristic socia- bility (if it may be so called) between Anglo-American and Con- ix CONTINENTAL LEGAL HISTORY SERIES tincntal Law; and its reciprocal influences make the story one and inseparable. In short, there is a tangled common ancestry, racial or intellectual, for the law of all Western Euro[)e and ourselves. For the sake of legal science, this story should now become a familiar one to all who are studious to know the history of our own law. The time is ripe. During the last thirty years Euro- j)ean scholars have placed the history of their law on the footing of modern critical and philosophical research. And to-day, among ourselves, we find a marked widening of view and a vigorous interest in the comparison of other peoples' legal institutions. To the satisfying of that interest in the present field, the only obstacle is the lack of adequate materials in the English language. That the spirit of the times encourages and demands the study of Continental Legal History and all useful aids to it was pointed out in a memorial presented at the annual meeting of the Asso- ciation of American Law Schools in August, 1909: "The recent spread of interest in Comparative Law in general is notable. The Comparative Law Bureau of the American Bar Associa- tion; the Pan-American Scientific Congress; the x\merican Institute of Criminal Law and Criminology; the Civic Federation Conference on LTniform Legislation; the International Congress of History; the lib.raries' accessions in foreign law, - — the work of these and other movements touches at various points the bodies of Continental law. Such activities serve to remind us constantly that we have in English no histories of Continental law. To pay any attention at all to Con- tinental law means that its history must be more or less considered. Each of these countries has its own legal system and its own legal history. Yet the law of the Continent was never so foreign to Eng- lish as the English law was foreign to Continental jurisprudence. It is merely maintaining the best traditions of our own legal litera- ture if we plead for a continued study of Continental legal history. " We believe that a better acquaintance with the results of modern scholarship in that field will bring out new points of contact and throw new light upon the development of our own law. Moreover, the present-day movements for codification, and for the reconstruc- tion of many departments of the law, make it highly desirable that our profession should be well informed as to the history of the nine- teenth century on the Continent in its great measures of law reform and codification. " For these reasons we believe that the thoughtful American lawyers and students should have at their disposal translations of some of the best works in Continental legal history." And the following resolution was then adopted unanimously by the Association: CONTINENTAL LEGAL HISTORY SERIES "That a committee of five be appointed, on Translations of Conti- nental Legal History, with authority to arrange for the translation and publication of suitable works." The Editorial Committee, then appointed, spent two years in studying the field, making selections, and arranging for trans- lations. It resolved to treat the undertaking as a whole; and to co-ordinate the series as to (1) periods, (2) countries, and (3) topics, so as to give the most adequate survey within the space- limits available. (1) As to periods, the Committee resolved to include modern times, as well as early and mediaeval periods; for in usefulness and importance they were not less imperative in their claim upon our attention. Each volume, then, was not to be merely a valu- able torso, lacking important epochs of development; but was to exhibit the history from early to modern times. (2) As to countries, the Committee fixed upon France, Ger- many, and Italy as the central fields, leaving the history in other countries to be touched so far as might be incidentally possible. Spain would have been included as a fourth; but no suitable book was in existence; the unanimous opinion of competent scholars is that a suitable history of Spanish law has not yet been \\Titten. (3) As to topics, the Committee accepted the usual Continental divisions of Civil (or Private), Commercial, Criminal, Procedural, and Public Law, and endeavored to include all five. But to repre- sent these five fields under each principal country would not only exceed the ine\T[table space-limits, but would also dupUcate much common ground. Hence, the grouping of the individual volumes was arranged partly by topics and partly by countries, as follows: Commercial Law, Criminal Law, Civil Procedure, and Criminal Procedure, were allotted each a volume; in this volume the basis w^as to be the general European history of early and mediaeval times, with special reference to one chief country (France or Germany) for the later periods, and witli an excursus on another chief country. Then the Civil (or Private) Law of France and of Germany was given a volume each. To Italy was then given a volume covering all five parts of the field. For Public Law (the subject least related in history to our own), a volume was given to France, where the common starting point with England, and the later divergences, have unusual importance for the history of our courts and legal methods. Finally, two volumes were allotted to general surveys indispensable for viewing the connec- xi CONTINENTAL LEGAL HISTORY SERIES tion of parts. Of these, an introductory volume deals with Sources, Literature, and General Movements, — in short, the external history of the law, as the Continentals call it (corresponding to the aspects covered by Book I of Sir F, Pollock and Professor F. W. Maitland's " History of the English Law before Edward I ") ; and a final volume analyzes the specific features, in the evolution of doctrine, common to all the modern systems. Needless to say, a Series thus co-ordinated, and precisely suited for our own needs, was not easy to construct out of materials written by Continental scholars for Continental needs. The Committee hopes that due allowance will be made for the diffi- culties here encountered. But it is convinced that the ideal of a co-ordinated Series, which should collate and fairly cover the various fields as a connected whole, is a correct one; and the endeavor to achieve it will sufficiently explain the choice of the particular materials that have been used. It remains to acknowledge the Committee's indebtedness to all those who have made this Series possible. To numerous scholarly advisers in many Europea-n universities the Committee is indebted for valuable suggestions towards choice of the works to be translated. Fortified by this advice, the Committee is confident that the authors of these volumes represent the highest scholarship, the latest research, and the widest repute, among European legal historians. And here the Committee desires also to express its indebtedness to Elbert H. Gary, Esq., of New York City, for his ample provision of materials for legal science in the Gary Library of Continental Law (in Northwestern LTniversity) . In the researches of prep- aration for this Series, those materials were found indispensable. To the authors the Committee is grateful for their willing co-operation in allowing this use of their works. Without ex- ception, their consent has been cheerfully accorded in the interest of legal science. To the publishers the Committee expresses its appreciation for the cordial interest shown in a class of literature so impor- tant to the higher interests of the profession. To the translators, the Committee acknowledges a particular gratitude. The accomplishments, legal and linguistic, needed for a task of this sort are indeed exacting; and suitable translators are here no less needful and no more numerous than suitable authors. The Committee, on behalf of our profession, acknowl- xii CONTIXEXTAL LEGAL HISTORY SERIES edges to them a special debt for their cordial services on behalf of legal science, and commends them to the readers of these vol- umes with the reminder that without their labors this Series would have been a fruitless dream. So the Committee, satisfied with the privilege of ha\'ing intro- duced these authors and their translators to the public, retires from the scene, bespeaking for the Series the interest of lawyers and historians alike. The Editorial CoioinTEE. xm A HISTORY OF CONTINENTAL CRIMINAL LAW CONTENTS PAGE Editorial Committee and List of Translators v General Introduction to the Continental Legal History Series ix Editorial Preface by John Henry Wicmore xxix Introduction by AV'illiam Renwick Riddell xliii Introduction by Edwin Roulette Keedy xlix Author's Preface by Carl Ludwig von Bar liii PART I GENERAL HISTORY OF THE CRIMINAL LAW TITLE I THE KOMAN AND THE GERMANIC ELEMENTS CHAPTER I THE ROMAN LAW § 1. Various Sources of Crimi- nal Law. Vengeance. Influence of the Priest- hood § 2. Home. Proininence of Religious Element. Roman Law not a The- ocratic System. Early Suppression of Ven- geance § 3. Snppression of Vengeance in Cases of Homicide. Influence of the Princi- ple of Vengeance in the Treatment of Other Crimes 11 § 4. " Perduello." " Mnltaj Irrogatio" 1(3 § 5. Roman Conception of the Relation of the Individ- ual to the State, (ier- manic Conception of the Relation of the Individ- ual to the State. Con- X\'ll CONTENTS tribution of Roman Criniinal Law to the Establishment of In- dividual Rights ... 17 § 6. The JurLsprudeiice of the Empire. Real Expla- nation of Arbitrary Nature of Roman Criminal Law ... 21 § 7. The Law of the Twelve Tables 22 § 8. Power of " Paterfamil- ias " as Supplement to Criminal Law. The Censorship. Infamy. " Actiones Populäres " § 9. Other Criminal Legisla- tion of the Republic. The Statutes of the Later Republic . . . § 10. Punishment in Statutes of Later Republic. Opposition to Death Penalty 28 § 11. Gradual Change in Character of the Criminal Law ... 30 § 12. Change in the Character of Exile as a Punish- ment. Increased Use of Capital Punishment. Corporal Punishment. 23 26 Imprisonment. Hard Labor. Other Methods of Punishment ... 32 § 13. Infamy and Confiscation of Property .... 37 § 14. The Range of Criminal Law. Attempt . . 39 § 15. The Crime of " Lese Majeste " 41 § 16. Persecution of the Chris- tians 43 § 17. Sorcery and Soothsaying 45 § 18. Circumstances Affecting Criminal Law. Class Privilege. Adminis- tration of Justice by State Officials. Con- tinued Disregard for the Criminal. Rever- sion to more Primitive Conditions .... 45 § 19. Influence of the Jurists . 50 § 20. Influence of Christianity in the Later Empire. Protection of State Sought by Numerous Penal Statutes. Other Effects of the In- fluence of the Church. Last Stages of the Roman Criminal Law 52 CHAPTER II PRIMITIVE GERMANIC CRIMINAL LAW § 21. Prominence of the Ele- ment of Vengeance. Outlawry not the Most Primitive Form of Punishment .... § 22. Special Relations of Peace. " Breach of the Peace of the Land " . § 23. Composition of Offenses 57 66 67 §24. §25. Little Consideration Given to the J^lement of Intention. Expla- nation of Lack of Con- sideration of Element of Intention. Secrecy Influence of the Early Kings. Capitularies of the Carolingians . 68 71 xvm CONTENTS § 26. Other Forms of Criminal Punishment. Influ- ence of the Punish- ment of Slaves. Effect of Loss of Freedom by Mass of the People 73 TITLE II THE MIDDLE AGES CHAPTER III THE CHRISTL\X CHURCH'S LAW § 27. Excommunication as the Foundation of the Criminal Law of the Church. Comprehen- sive Nature of the Law " of Penance." Influence upon the Criminal Law of the State § 28. The Disciplinary Law of the Church. Its Similarity to the Crim- inal Law of the State § 29. Growth of Criminal Power of the Church. Privilege of Clergy. Union of the Criminal Laws of the Church 79 82 and State under the Prankish Kings . . 83 § 30. Influence of the Church's Right of Asylum. Ac- quisition by Church of Temjioral Jurisdiction 88 § 31. Variation in Extent of the Church's Jurisdic- tion at Different Peri- ods. " PoenjE Medici- nales " and " Poenae VindicativjB." Defects of Criminal Law of the Church .... 90 § 32. Heresy. Ideal of Divine Justice and the Mosaic Law. Ultimate Effect of the Criminal Law of the Church ... 92 CHAPTER IV MEDIEVAL GERMANIC LAW § 33i Result of the Degrada- tion of the Mass of the People 95 § 34. Feuds and Self-Redress. The " Landfrieden " . 96 § 35. Changes in the Theory of Specific Crimes. Treason. The Inflic- tion of Bodily Injuries 101 § 36. Equality Before the Law. Instigation, Attempts, Negligence, and Pre- meditation. Moraliz- ing Tendencies . . . § 37. Effects of Changes in the Law of Proof. Arbi- trary Character of the Law 103 104 XIX CONTENTS §38. Confusion resulting from the Term " Frieden." Reversion to Primi- tive Conceptions. Se- verity of the Law. Application of Mosaic Law. Cruelty of the Punishments. Fail- ure of the Law . . . § 39. Incidental Circumstances 107 having a Demoralizing Influence. Private Settlement in Cases of Crime. The " Grace " of the Rulers. Other Peculiar Customs. In- fluence of Accidental Circumstances. Un- certainty of the Court Procedure 112 CHAPTER V SCANDINAVIA AND SWITZERLAND IN THE LATER MIDDLE AGES A. Scandinavia § 39a. Early Customary Law. Primitive Feuds and Kin Vengeance. Pri- vate Fines. Limita- tion of Private Ven- geance. Church ISlulcts 119 § 396. The Provincial Codes. Growth of Public Authority. System of Public and Private ^ 39c. Fines. Procedure. Ac- cessories. Elements of the ]\loney Forfeitures. Forty-Mark and Three-Mark Causes. Outlawry. Other Pub- lic Punishments . . Penal Legislation, a.D. 1300-1500. Market- Town Laws . .' . . 125 139 B. Switzerland § 39rf. The Common Law of the Later Middle Ages (Peace ; Pledged and Commanded Peace; Crimes; Penalties) 142 CHAPTEE VI FRANCE IN THE LATER MIDDLE AGES § 39e. General Features of Medieval Criminal Law in France . . . 14G § 3,9/: Specific Crimes ... 161 § Wg. Punishments .... 187 CONTENTS TITLE III THE EENASCENCE, THE REEORMATIOX, AXD THE 1700 s CHAPTER YII GERMANY'S RECEPTION OF TUE ROMAN LAW IN TUE EARLY 1500 s § 40. ReasoDS for Reception of the Roman Law. Per- manent Features of the Germanic Law. The Italian Jurists . 202 § 4L Early Law Books Intro- ducing the Italian Legal Doctrines into German}'. The " Bam- bergensis Halsge- richtsordnung." Re- lation of the Bainber- gensis to the Italian Legal Learning . . . 207 § 42. The Penalties of the Bambergensis. Rela- tion of the Bamber- gensis to the Local Law. Intrinsic jNIerit of the Baml)ergensis. Recognition of the Bambergensis Outside of Bamberg .... 211 §13. The "Carolina."' Local Opposition. Tlie " Saving Clause" . . '21') § 44. Comparison of the Caro- lina and the Bamber- gensis. Careless ^Slan- ner of Publication. Varied Application of the Carolina. General Effect of the Carolina 217 CHAPTER VIII GERMANY IN THE LATE 1500 s AND THE 1600 s § 45. Relation of the Carolina to the Reformation. Religious Tolerance. Unfortunate Results of the Reformation § 46. The Literature of the 1500 s and 1 GOO s. The Jurisconsults and the Law Faculties • . . § 47. Domination of Theology. Witchcraft. Blas- phemy § 48. Despotism of the Rulers. 221 223 226 229 § 49. The Crime of " Lese :\Iaj- este." Other Illustra- tions of the Despotism of the Rulers . . . 230 § 50. Abuses of the Criminal Law 232 § 51. Scantiness of Legisla- tion. Evasion of the Carolina; Berlich and Carpzov 233 § 52. Recognition of the Prin- ciple of Mitigating Cir- cumstances. Rise of XXI CONTENTS Imprisonment as a Penalty. Change in Law of Troof ... 237 § 53. Doctrines as to Judicial Discretion in Defining Crimes 241 CHAPTER IX GERMANY IN THE 1700 s § 54:. Beginnings of a Change. Gradual Suppression of Witchcraft Trials. Emancipation from Theology and the Mo- saic Law. Effect of Doctrine of Law of Nature. Signs of Progress. Kress and Boehmer 243 § 55. The Universities. The Early Treatises. The New Theories of Crim- inal Law in Italy and France 246 § 56. Legislation of the 1700 s ; the Bavarian Code of 1751. The Austrian Theresiana. The Stat- utes of Frederick II of Prussia 24S § 57. The Austrian Code of Joseph II of 1787. Its System of Punish- ments. Its Classifica- tions and Definitions . 251 § 58. The Prussian Landrecht of 1794 254 § 59. The Austrian Code of 1803 257 CHAPTER X FRANCE, FROM THE 1500 s TO THE REVOLUTION § 59«. General Features ; Lack of a Criminal Code. Roman Principles in France 259 § oQb. Discretionary Character of the Penal System . 262 § 59c. Crime ; General No- tions and Classifica- tion 265' § .59r/. Penalties in Use . . . 268 § 59e. The Several Crimes and Their Punishments . 27& CHAPTER XI OTHER COUNTRIES IN THE 1.500 s-1700s A. Scandinavia § 59/. Scandinavia during the Period 1500 s-1700 s. Private Vengeance Prohibited. Outlawry. Penalties. Legislation in the 1600 s. ... 291 XXll CONTENTS §59^. § 59«. § Ö9y. The 1500 s and the 1600 s; The Reforma- tion Period . . . . B. Switzerland PAGE § 59Ä. The 1700 s; the " Auf- kläruncr " Period . . 297 C. Netherlands Sources of Criminal Law in the Netherlands be- fore the 1500s . , . 301 The Roman Law and the Carolina. The Constitutio Criminalis Carolina, and the Criminal Ordinances . 302 § 59Ä-. General Features of the Criminal Law from Later Medieval Times to the 1700 s. Charac- ter of Criminal Law of this Period. The Reform Movement of the Later 1700 s . . 298 306 TITLE IV THE FREIs^CH REVOLUTIONARY PERIOD CHAPTER XII THE FRENCH REVOLUTIONARY REFORMS § 60a. Reform Movements on the Eve of the Revolution 315 § GOb. The Code of 1791, and the Code of Brumaire 320 CHAPTER XIII THE GERMAN REFORMS OF THE FRENCH REVO- LUTIONARY PERIOD § 61. The New Direction to German Criminal The- ory in the Late 1700 s. Grolmann and Feuer- bach. The Movement towards Prison Reform 325 § 62. Feuerbach as Legislator for Bavaria. The Ba- varian Code of 1813. Defects 328 TITLE V MODERX TIMES CHAPTER XIV THE FRENCH CODE OF 1810, AND FRANCE IN THE ISOO s § 62a. The Penal Code of 1810 335 I § 62^. Principal Changes dur- I ing the 1800 s ... 338 xxiii CONTENTS CHAPTER XV GERMANY SINCE § G3. The Criminal Codes of the First Half of the 1800 s. Influence of Feuerbach's Bavarian Code. Influence of the Political Agitation of 1818 343 § 01. Legislation in Prussia. The Code of 18.51 . . 348 § Go. Influence of the Prussian Code. The Bavarian Code of 1861. Other States 352 § 66. Progress towards Greater Legal Unity in Ger- many. The Draft of 1869 of a Criminal Code for North Ger- many 353 1813 PAOE § 07. The Code of the Nortli (Jerman Confedera- tion. Its Character. Opposition in the Reichstag. Changes made by the Reichstag. Criticism of the Code. The Code of the North German Confederation as the Code of the Em- pire 355 § 68. The Criminal Law Amendment Act of 1876. Other Criminal Laws 359 § 69. The Draft Code of 1909 362 CHAPTER XVI 69rt. § 696. § 69rf. § Q9e. OTHER COUNTRIES SINCE 1800 A. Austria Austrian Legislation since 1848 364 B. Netherlands and Belgium Netherlands .... 365 | § 69c. Belgium 367 C. Scandinavia Denmark 367 I § 69/. Sweden 368 Norway 368 | § 69^. Finland 369 D. Switzerland § 69A. First Period : to 1830 . 370 § 69i. Second Period : 1830- 1848 372 xxiv § 69J. Third Period : since 1848. Political Crimes 372 CONTENTS PART 11 HISTORY OF THE THEORIES OF CRIMINAL LAW CHAPTER I §70. §71. §72. ANCIENT GREECE AND ROME PAGE Practical Importance of §73 Theories of Criminal §74 Law 379 The Beginnings of Specu- lation. The Sophists 381 Socrates. Plato . . . 382 Aristotle 386 Influence of Aristotle. The Stoics. The Epi- cureans. Scepticism. Roman Philosophy. Hierocles 387 CHAPTER II §76. THE PHILOSOPHY OF CRIMINAL LAW IN THE MIDDLE AGES Attitude of the Early Christians towards the Law. Changed Posi- tion of Christianity as a State Religion • . 392 Views of Medieval Phi- losophy as Exemplified by Thomas Aquinas. The Lack of Interest of the Medieval Phi- losophers in Criminal Law 393 CHAPTER III CRIIVnNAL THEORIES FROM GROTIUS TO ROUSSEAU § 77. Grotius. Range of Pun- ishable Acts. Amount of Punishment. Justi- fication of Punishment from the Standpoint of the Criminal. Defects and Merits of Grotius 398 § 78. Hobbes. Justification of Punishment from Standpoint of the Criminal 401 §7-9. §80. §8L Spinoza. Intliiences of Spinoza's Life upon his Work 404 Pufendorf. Comparison with his Predecessors. Value of his Work . 406 Other Writers. Locke. Leibnitz. Cocceji. Thomasius and Wolff. Rousseau 409 XXV CONTENTS CHAPTEK IV CRIMINAL THEORIES FROM BECCARIA TO FEUERBACII § 82. Beccaria. Defects and Merits of Beccari'a's Work. Latei- Writers. Filangieri § 83. Globig and Huster . . ij 84. Servin. Wieland . . . 413 417 418 § 85. Kant. Criticism of Kant's Theory . . . 4"22 § 8f). Fichte 424 §87. Grolniann. The "Special Prevention " Theory . 427 § 88. Feuerbach. His Theory. Criticism of his Theory 428 CHAPTEE V CRIMINAL THEORIES FROM BENTHAM TO IIERBART § 89. Benthani. Romagnosi's Theory of Necessary Defense. Difference between Romagnosi and Feuerbach. De- fects of the Theory of Necessary Defense. Oersted 435 § 90. Bauer. The " Admoni- tion " Theory . . . 439 § 91. The Reaction against Feuerbach 's Theory of Deterrence. Schulze . 441 § 92. Theory of Reformation Founded upon De- terminism. Groos. Krause. Ahrens. Rö- der 442 § 93. The " Restitution " or " Compensation " The- ory. Hepp .... 447 § 94. Changes in the Absolute Principle of Criminal Law. C. S. Zachariä. Henke 451 § 95. Combination of the Ab- solute and Relative Purposes. Rossi. Haus. Ortolan. Gabba. Von Preuschen. Mohl. Mittermaier. Henrici 4.52 § 96. Herbart's Retribution Theory of ^Esthetic Judgment. Geyer . 455 CHAPTER VI CRIMINAL THEORIES IN GERMANY FROM HEGEL TO BINDING § 97. Theory of the Negation of Wrong. Hegel . . § 98. Modern Theological Tendencies. Stahl. Schleiermacher. Daub 460 464 xxvi § 99. Later Developments of Hegel's Theory. Abegg. Heffter. Köst- lin. Merkel. Hälsch- ner. Berner. Kitz . 470 CONTENTS §100. Combination of the The- ories of Hegel and Ficlite. Ileinze . . 482 § 101. Von Kirchmann. Scho- penhauer. Diihring, E. vou Hartraanu, von Liszt 486 § 10"2. Binding's Theory of the Effect of Disobe- dience to a Kule. Laistner. Modern Theories of Crim- inality outside of Germany 492 APPENDIX VON BAR'S CRITIQUE OF THE THEORY OF CRIM- INAL LAW 407 INDEX .549 XXVll EDITORIAL PREFACE By JOHN HENRY WIGMORE' It is a little curious that the history of the criminal law has been so scantily expounded by scholars, — scantily, that is, in relation to the other parts of the law. Of public law in general, there are histories enough. Of the civil law, there is an abun- dance of histories, alike for the particular doctrines and for the entire system, in summary and in extended detail, and for almost every country of the Continent. And a history of the sources of the law is still more popular in its attraction ; most of the so- called histories of Spanish law, for example, include nothing beyond this part of the field. But the criminal law has remained largely without patronage. One might speculate over this lack. The field is vast ; yet the others are vaster. The criminal law is younger, — that is, it separates distinctly from civil or pri^•ate law at a period much less than a thousand years ago ; yet this should only make it more tempting. There is in criminal law less of generic principle continuously developing in definite traceable changes, and thus less logical interest ; yet this, while it may repel some minds, ought to attract others. Perhaps it is the miscellaneous breadth of the sul)jcct wiiich has warned off all but the most courageous. For tlie history of the criminal law is partly also the history of crime itself, i.e. the history of social conditions and habits infinitely changing; and is partly the history of certain large moral attitudes in\()hing the traits of whole epochs, — intent, moral responsibility, family and feudal solidarity, pardon, purposes and modes of repression and 1 Professor of the Law of Torts and of E\ndenee in Xortliwi'stern University; former President of the Amerioan Institute of Oimiiial Law and Crimmology ; Chairman of the Editorial Committee for < =-• series. xxix EDITORIAL PREFACE punishment, metliods of trial. To disentangle and trace all the aspects and details of modern criminal law in their development amidst the congeries of law, morals, religion, and custom in suc- cessive past epochs, is a huge and delicate task, which might well make the boldest historian halt. For an example, take the penalty of imprisonment. When there were no prisons, this mode of punishment or repression would of course be non-existent. And the prison as a mode of punish- ment is a fairly modern device. But how can we to-day conceive of penal law without prisons? And so here we are plunged at once into the history of ideas of penal law, of social conditions, of judicial methods, in different communities. Take again, the crime of forgery. In the days before the rise of the seal — that is, before the 1200 s — the monkish forgeries of parchment title-deeds formed one of the most extensive of crimes. Upon the rise of the seal, this crime takes on a new aspect. Three centuries later, with the spread of printing and the famil- iarity with writing, the setting of the crime shifts again. And in the nineteenth century, in the United States, the universal upspringing of local banks and a private bank-note currency, brings into existence on a large scale a variety of forgery before unknown anywhere. And finally, with the suppression of State banks and the institution of a Federal detective force, this crime almost disappears from practice within two generations, while the law remains on the books as a dry enactment, signifying little in the development of ideas. And (to pursue another aspect of the same crime) the contrast between the notarial system of the Continent and its non-existence in England and America, and between the administrative systems of the same countries, has left its mark in radical differences of the legal definition of the crime of falsification of documents, — differences so important that in more than one modern instance the terms of extradition treaties have proved futile. Take one more instance, the related crimes of robbery and larceny. Different systems and different epochs have varied widely in defining the legal scope of the Commandment. The Romans punished most rigorously open violence, and were lenient with surreptitious larceny ; while the early Germans strictly penalized secret theft, but cared little or nothing to repress rob- bery. The explanation must be sought in the traditions and temper of these peoples. XXX EDITORIAL PREFACE Without such a background, the history of the criminal law may degenerate into a mere catalogue of penalties and definitions. And this simply antiquarian treatment of it characterizes the earlier historians. Only in very modern times — presumably as a part of the evolutionary view of history — has the method changed. Of the few histories, those worth reading to-day are fewer. Perhaps we do not realize as we should that in Sir James Fitzjames Stephen's "History of the English Criminal Law" and Mt. L. Ow^en Pike's "History of Crime in England ", taken in combination, we possess an account such as no other single country possesses, — - except perhaps Italy. An ideal history of the criminal law should cover three fields : first, the history of criminal law in general, — its moral and polit- ical ideas, its legislative movements, its general legal doctrines, and its penal methods ; secondly, the history of specific crimes as defined by the law ; and thirdly, the history of crime itself, — its practices, methods, and causes. But no such ideal history exists in print, — nor in prospect for some time to come. What we do find is a very few good histories of the first sort, for the separate countries ; a few inadequate accounts of the second sort ; and a few good accounts of the third sort, — of which Mr. Pike's is the best and the only comprehensive and notable one. Of the first sort. Professor von Bar's history, here translated, is perfect of its kind, and is the only one for Germany. ]\Iore- over, it supplies incidentally many details of the second and the third sort of histories. It has so large a scope, beginning with Roman criminal law, and tracing the amalgamation of Germanic and Roman law under successive influences to modern times — that it serves well, with supplementary chapters for other coun- tries, as a history of Continental criminal law. — For France, there is no adequate modern volume. Du Boys' history (pub- lished in 1874), though sound in scholarship, is on the older lines. Glasson's chapters in his eight-volume "History of French Law and Institutions" (unfinished at his death in 1907) carry the story only to the 1500s; Stein's "History of French Criminal Law" only to the 1700s. None of the other general histories cover the criminal law. — For Italy, the splendid general histories of modern scholars give adequate space to criminal law. That of Calisse is translated as a part of \o\. \\\ of this Series, "His- tory of Italian Law" ; the plan of this Series required that align- ment. Italy has been the home of most of the new movements in xxxi EDITORIAL PREFACE cTiminal law ; and the history of its criminal law will serve as the proper prelude to the present volume. — For Spain, no history of the criminal law has been published, not even as a part of a work in },'encral history; except Du Boys' "History of Criminal Law on Spain" (pul)lislied in French in 1872, and later translated into Spanish in 1874), which is of the older type. — For Scandinavia, Denmark is well provided in the general histories by Stemann (here used) and Matzen; the former of these dates in 1871, the latter in 1893-7 ; but the late Professor Matzen's work, though a most distinguished piece of modern scholarship, is in its treatment unsuitable for the present purpose. Norway has no history of its own, on this subject, but is adequately covered by the Danish works. Sweden has no work of its own.^ — For Switzerland, Pfenninger's "Swiss Criminal Law" is mainly historical, and its chapters have here been drawn ujjon. — For Austria, von Bar's treatise supplies a full understanding. — P^or the Netherlands, G. A. Van Hamel's "Introduction to the Dutch Criminal Law" contains a short history (here used) ; no other modern account has been published. — For the Continent as a whole, needless to say, no other history is in print.^ But a brilliant beginning has been made in Makarewicz's "Introduction to the Philosophy of Criminal Law on Historical Principles" (1906). This work covers only the leading ideas of criminal law from its beginning in primitive communities, with some attention to modern sur- vivals and to specific crimes ; but does not follow out the succes- sive stages of each one in completion, nor trace the general move- ments of legislation. It is an earnest of the great possibilities 1 Jaakko Forsmaiin's " Pöreläsningar (Anteckningar) öfver straffrättens allmänna läror" (Helsingfors, 1900), and " Föreläsningar öfver de sär- skilda brotten", parts I-III (left unfinished at the author's death) begins each chapter with a brief historical survey of the topic, but does not offer a connected systematic treatment ; moreover, it deals primarily with Finland's law. '^ Albert Du Boys had indeed planned the work on a large and worthy scale. His "Histoire du droit criminel des peuples aneiens" (1845), stopping at the Christian era, was followed by his "Histoire du droit criminel des peuples modernes" (1854-1860) ; Volume I for the Teutonic period. Volume II for the feudal period. Volume III for England. Then came his "Histoire du droit criminel de TEspague" (1870), and "Histoire du droit criminel de la France, XVr"''-XIX""' sieele, compare avec celui de ritalie, de I'AUemagne, et de I'Angleterre" (1874, 2 vols.). But his method was behind the times, even then ; and the undertaking was beyond his powers. The great conception and the forty years' toil were for us fruitless. And this futility of it gives us a sentiment of sadness as we read his farewell preface, in which he announces the termination of his task, "un plan si vaste, que parfois il nous a semble etre au dessus de nos forces." xxxii •EDITORIAL PREFACE of the subject when treated by a master hand ; and we may hope that its author will end by producing a systematic treatise includ- ing all aspects of the subject. Of histories of the second sort — specific crimes — no complete modern treatise exists for any country, much less for the whole of the western Continent ; though each of the above-mentioned works contains naturally more or less of this material. There are, however, two works from which one may, if in need, piece together a fairly connected account of the history of specific criminal definitions : S. Mayer's "History of Criminal Law from the time of ]Moses, Solon, etc., to the Present Day",^ and O. Q. Van Swinderen's "Summary of existing Penal Laws in Netherlands and other Countries." - The former work, full of varied learning, takes up the various crimes in order, and examines their definitions in Greek, Roman, Jewish, Canon, and medieval German law, with brief references to modern Continental legislation ; but the treat- ment is that of the older school, and there is no background and no tracing of evolution. The latter work, a superb study of mod- ern comparative criminal law m its definitions and policies, pref- aces each chapter with a page or two of history for Roman and medieval German and French law ; but these united pages would not suffice as a connected history. After Makarewicz as a basis, ]\Iayer and Van Swinderen, perused together, would pro\ide the student with an excellent makeshift, until an adequate history of this part of the field is written. The foregoing summary will serve to show the scope of the available sources of knowledge for the history of Continental criminal law, and to explain why von Bar's work was selected by the P^ditorial Committee as the most serviceable. It may be noted that the plan of choosing a treatise centering on one coun- try, and of supplementing it by chapters for other countries, was employed by the Committee (as stated in the General Introduc- tion) for the three subjects of Criminal Law, Criminal Procetlure and Civil Procedure. It remains to cite the books and essays here translated, and to give an account of the collaborators. The Works Translated. Professor \on Bar's work, form- ing the main part of this volume, is entitled "Geschichte des deutschen Straf rechts und der Straf rechtstheorien." It is here 1 "Geschichte der Strafrechte, etc.", Trier, 1876. 2 " Esquisse du droit penal, etc.", 9 vols., Groningen, 1901-12. xxxiii EDITORIAL PREFACE translated in full, — with the exception of the section on the French Revolutionary and Napoleonic Codes, replaced by the pref- erable chapter of Professor Garraud. Von Bar's work appeared in 1882, and has remained authoritative. The distinguished author wrote to the Committee in 1911 that he was satisfied not to make any changes in the text : " the later investigations have not been such as to give me any reason to make any substantial changes in the text." Nevertheless, to bring down to date its account of the modern legislation, to add citations of later literature, and to supply brief accounts of the history in the coun- tries not covered by his work, certain additions were necessary. The legislation of the 1800s in Scandinavia and the Nether- lands, and since 1877 in Germany and Austria, is described by Dr. von Thot, in sections written for the purpose. The same author has added citations of historical literature. For the Netherlands, the section on the history to the 1800 s was taken from Professor G. A. Van Hamel's "Inleiding tot de Studie van het Nederlandsche Strafrecht" (2d ed., 1907, § 6, pp. 54-77; the third edition, 1913, does not change the text). For Scandinavia, the section on the Danish-Norwegian history to the 1800 s was taken from Chief Justice L. E. Stemann's "Den danske Retshistorie indtil Kristian V.'s Love" (1871, Part V, §§ 101-107, pp. 572-647), with amplifications from the well-known earlier w^orks of J. L. A. Kolderup-Rosenvinge, "Grundrids af den danske Retshistorie" (3d ed., 1860, §§ 163-165) and of J. E. Larsen, " Forelaesninger over den danske Retshistorie" (1861, §§ 163-165, supplementing the former work). For Switzerland, the sections consist of an abstract by the Editor based on Professor Heinrich Pfenninger's "Das Strafrecht der Schweiz" (1890). For France, three works were drawn upon. For the period from the feudal system till the 1500 s was used the late Professor Glasson's "Histoire du droit et des institutions de la France" (1887-1903, Vol. VI, ch. XII, pp. 640-705). For the period from the 1500 s to the 1700 s was selected Professor L. von Stein's "Geschichte des französischen Straf rechts und des Processes" (2d ed., 1875, being Vol. III of Warnkönig and Stein's "Französ- ische Staats- und Rechtsgeschichte", Part IV, Tit. IV, pp. 608- 630). For the Revolutionary and modern period were taken some introductory pages of Professor Garraud's "Traite theorique et pratique du droit penal" (6 vols., 1898-1902). xxxiv EDITORIAL PREFACE For Spain and Portugal, no suitable account seems anj'where to exist. For Italy, the reader is referred to Professor Calisse's work, in Vol. \ll of the present Series. The chapters of Professors von Bar, Van Hamel, and Glasson, here translated, point out the influ- ence of Italian jurists on the law of the other countries. The Authors. Carl Ludwig vox Bar was born in 1S3G, at Hannover, and died August 20, 1913. After a few years' ser- vice on the Appellate Court at Göttingen, he became professor at Rostock, then at Breslau, and finally at Göttingen (1S79), where he had taken his degree and where he remained till the end of his life. His early interest was in criminal law ; and the long list of his published works in that field extended to his closing years.^ But he was led also into the study of problems of international criminal law, and thence into international law at large, both public and private ; and in this field he acquired an authority which led him to be known, in other countries, chiefly as an international jurist. His " Das Internationale Privat- und Strafrecht" (1862) was here his first work, later expanded as a "Lehrbuch des internationalen Privat- und Strafrecht'' (1892); and his "Theorie und Praxis des internationalen Pri- vatrechts" (2 vols., 2d, ed., 1889), translated into English (by G. R. Gillespie) as "The Theory and Practice of Private Inter- national Law" (2d ed., 1892; 1st Amer. ed. Boston, 1883), made his name familiar among English-speaking lawyers. Indeed, it was on English soil, at Oxford, that his sudden death took place, during the meeting of the Institute of International Law ; of which he had been one of the founders, forty years before. He also possessed the distinction of being one of the members of the International Arbitration Court at the Hague, and had received numerous academic honors from the Universities of Bologna, Cambridge, Padua, and elsewhere. 1 "Recht und Beweis im Gesell wornengerieht " (18G5) ; "Die Grund- lagen des Strafreehts" (1869); "Die Lehre von Causalzusanunenhange im Rechte, besonders im Strafrecht " (1871) ; "Zur Frage des Geschwornen- und SchötTengcriehte" (1873); "Kritik des Entwurfs der deutsehen Strafprozessordnung" (1873) ; "Grundriss zu Vorlesungen über deutsches Strafrecht" (2d. ed., 1878); "Systematik des deutschen Straf |)rozess- rechts" (1878); "Handbuch des' deutschen Strafrechts" (of which the "Geschichte" here translated, was Vol. 1, but the only one pul>lished) ; "Probleme des Strafrechts" (189(3) ; "Die projektirte Reform des italien- ischen Strafprozesses" (1902); "Die Reform des Strafrechts" (1903); "Gesetz und Schuld im Strafrcclit ; Fragen des geltenden deutschen Strafrechts und seine Reform" (3 vols., 1900-09). XXXV EDITORIAL PREFACE Von Bar was in politics a pronounced liberal, and for a few- years held a seat in the Reichstag. But owing to his deep flisaf- fection to the Bismarckian policies (dating from his early years, as a native of Hannover, where, before the German Empire was consolidated, political disagreements were marked), he never held any government office. In his later years, when his influence in the Institute of International Law had become so notable, he took a prominent part as a pacifist, and became a Councillor of the Interparliamentary Union and President of the International Union for Mutual Understanding. It was a symbol of his deep in- terest in these movements that his death came on the very eve of a journey to attend the dedication of the Peace Palace at the Hague. Ladislas von Thot is a native of Hungary, and has been judge of the criminal court in Budapest, He is a Fellow of the Pioyal Academy of Spain, Corresponding Fellow of the Royal Academies of Italy and of Greece, of the Petrograd Imperial Society of Ju- rists, etc. His astonishing command of many foreign languages has enabled him to pursue comparative researches of wide scope. His lengthy essay in "Der Gerichtsaal" (1912, LXXIX, pp. 142- 392) on " Die Geschichte der ausserdeutschen Strafrechtsliteratur ", with its vast array of bibliography, is a sufficient evidence of his extraordinary mastery of the literature of the subject. The list of the titles of his published works exhibits an unequalled versatility.^ G. A. Van Hamel, the veteran professor (now retired) of the University of Amsterdam, has long been recognized as one of the great figures of modern times in criminal law. With Franz von Liszt, of Berlin, and Adolphe Prins, of Brussels, he founded the International Union of Criminal Law, — the body with which the American Institute of Criminal Law and Criminology is affiliated as a national group. His writings on criminal law have been prolific,^ and his scholarly authority is unexcelled. Kristian Ludwig Ernst Stemann (1802-1876) was one of 1 "Storia del diritto penale europeo", in "II progresso del diritto criminale", ed. Carnevale (Vols. I-IV, passim, 1909-1913); "Droit penal oriental", in "Mittheilungen der internationalen Icriminalistischen Vereinigung" (Vol. XIX, 1912, pp. 110-227); " Gesehiedenis van het italiensche Straf regt ", in "Proceedings of the Royal Flemish Academy " ; etc. -Besides the work here translated from may be mentioned: "De tegenwoordige Beweging van het Strafreeht" (1891), numerous reports in the "Mittheilungen der internationalen kriminalistischen Vereinigung" (above mentioned), and articles in the "Tijdschrift voor Strafreeht", of which he is an editor. XXX vi EDITORIAL PREFACE Denmark's notable jurists and legal historians, and President of the Schleswig Court of Appeal from 1852 to 1864.^ Heixkich Pfexxixger (184G-1896) was associate professor in the Faculty of Law of the University of Zürich from 1891 till his death ; his chosen field was that of criminal law.- Erxest Desire Glassox (1837-1907) was professor of Civil Procedure in the Faculty of Law of the University of Paris from 1879 until his death in 1907. Besides his work in that field, he is best known for his "Ilistoire du droit et des institutions de la France" (1887-1903), which had proceeded to eight volumes at the time of his death, and had then reached only the period of the 1500 s (with some portions completed into the 1700 s). LoREXZ vox Steix (1813-1890) pursued a long and distin- guished career as economist, historian, and jurist, in professorates at Kiel (1846) and Vienna (1855). His contributions to law and political science were numerous.^ His "Französische Rechts- geschichte", written in collaboration with Warnkönig, and their other joint work, "Flandrische Rechtsgeschichte", remain as scholarly monuments, and are marked by a penetration and wis- dom having an unusual flavor of modernity. Leopold August ^YARXKÖXIG (1794-1866) was professor of law at Liege, Louvain, Ghent, Freiburg, and Tübingen. His special field was legal history, and for some time he served on the Royal Belgian Commission for editing Belgian historical sources ; one consequence of which is Belgium's possession to-day of a superb series of critically edited medieval legal sources.'* Frax^ois Garraud, professor in the Faculty of Law at Lyon, stands as the preeminent modern French author on criminal law ' His other principal works were: "Sehleswig's Rechts- und Gerichts- fassung im 17«en Jalirhundert" (1855); "Geschichte des öffentlichen und Privatrecht des Herzogthums Schleswig" (1866-67). -His other publications were: "Der Begriff des politischen Ver- brechens" (Schweiz. Juristenvereins-Versammlung. XVIII, Bern. 1880); "Entwurf eines Strafgesetzbuch für den Canton Uri" (Frauenfeld, 1894) ; "Grenzbestimmungen zur CriminaUstisehen Imputationslehre" (Fest- schrift für Berner, Zürich, 1892). ' "Geschichte der socialen Bewegung in Frankreich von 1789 bis auf unsere Tage" (1850); "System der Staatswissenschaften" (1852-.")7); "Lehrbuch der Volkswirtschaft" (1858, 1878); "Die Verwaltungslehre" (1865-68, 7 vols.); "Gegenwart und Zukunft der Rechts- und Staats- wissenschaft Deutschlands" (1876). ^ Among his principal works may be named: "Commentarii juris romani privati" (1825-32); " F'landrische Staats- und Rechtsgeschichte bis 1305" (1834-42) ; "Histoire externe du droit romain" (1836) ; "His- toire du droit belgique" (1837); "Histoire des Carolingiens " (1862). xxxvii EDITORIAL PREFACE and proccflurc. In his works the French combination of solid schohirship, exegetic clarity, and philosophic breadth, is seen at its l)est. Chapters of his treatise on Criminal Procedure are also used to supi)l(Mncnt the translated text of Professor Esmein's "History of Criminal Procedure", forming Vol. \ of the present Series. The Translators. For the main work, von Bar's "His- tory", and von Thot's additions, the translator is Thomas S. Bell, now of the Los Angeles Bar. ]\Ir. Bell, after graduating from the University of Colorado, and going as Rhodes Scholar to Oxford University, completed there a course in law and jurisprudence and was later (1908) Fellow in Jurisprudence at Columbia University. He afterwards practised for a time at the Tacoma Bar, and was lecturer on International Law" in the University of Washington. For Stemann's chapter, the translator is John Walgren of the Chicago Bar, who is also the translator of the Scandinavian chapter in Vol. I of this Series, "General Survey of Continental Legal History"; a further statement of his attainments is there made. For the chapters from Garraud and Glasson, the translator is Alfonso de Salvio, assistant professor of Romance Languages in Northwestern L^niversity ; he is also the translator of the trea- tise of De Quiros on "INIodern Theories of Criminality" in the Modern Criminal Science Series (published under the auspices of the American Institute of Criminal Law" and Criminology). For the chapter from von Stein, the translator is Robert Wyness ]Millar, professor of Criminal Law and Procedure and of Civil Procedure in Northwestern University, and translator also of Engelmann's "History of Continental Civil Procedure" in the present Series, and of Garofalo's "Criminology" in the ^Modern Criminal Science Series. For Van Hamel's chapter, the translator is T. de Vries, lately professor of ^Modern Languages at Calvin College ([Michigan), and also (on the Holland Society's foundation) of the Dutch Language and Literature at the University of Chicago ; author of numerous valuable works in Dutch, including a history of Sundav Observance Legislation. xxxvni EDITORIAL PREFACE Scope of the Story. Rome and the Germanic peoples fur- nished the elements which fused a thousand years later. Hence the story begins by portraying the criminal law of imperial Rome and that of the primitive Germanic tribes. At the beginning of our era the two lay totally apart, an older and a younger system, one in the South and one in the North. The migrations of the Germanic tribes lead up to their acceptance of Christianity ; and the influence of Christian religion and church law form the next episode in the story, and a chapter on this subject brings us to the period of the early INIiddle Ages. The stage of the later Middle Ages, under the kingdoms and principalities of feudalism and of the weak Germanic imperialism claims next attention. Here a chapter describes the criminal law in the central Germanic regions ; another chapter describes it in Scandinavia, where primitive habits, uninfluenced from out- side, persisted longer; another chapter is given to Switzerland, where mountainous isolation served also to preserve certain native traits, in spite of the central location near to regions of advanced culture. Another chapter for the same period is given to France, wdiere the continuous Roman tradition in the South, the Germanic settlements in the North, and the early strength of national monarchy, served to make a complex growth having special features. This completes the second period, the Middle Ages, and brings us to the third period, the Renascence of Roman law in the 1400s-1500s, the Reformation, and the ensuing century of the "Enlightenment." — In Germany, the Roman law was adopted from Italy in a peculiar artificial fashion. Italy had then for nearly three centuries been reviving, popularizing, and adapting the classical Roman law ; and Italy became now the teacher of West- ern Europe (except England) for a recast Roman criminal law and procedure.^ Three chai)ters describe the progress of the crim- inal law in Germany under the scientific Reception (the 1500 s), the religious Reformation (the IGOO s), and the intellectual Enlight- enment (the 1700 s). We then turn aside, for two chapters, to survey the corre- sponding development for the same period in Scandinavia, Swit- zerland, Netherlands, and France. Scandinavia, still outside the • Italy's history of criiniiial law is fully told in Professor Calisse's vol- ume (translated by Mr. Lide), No. VIII of the present Series, "History of Italian Law, Public, Criminal, and Private." xxxix EDITORIAL PREFACE direct current of new science, exhibits the almost pure develop- ment of Germanic ideas. Switzerland and Netherlands, fully within the influence, present only locally variant tj'pes of its effect. The later religious and intellectual movements are shared in all four regions, in differing degrees. France has a special develop- ment of its own, partly through its earlier cultivation of the re- vived Roman law, partly because of its well-formulated bodies of local written law, but chiefly through its centralized monarchy and its advanced methods of procedure. Later, France leads Europe in the humanization of the criminal law. — This brings us to the fourth period, that of the French Revolu- tion, which amidst the crash of governments rapidly focussed the reformative demands in criminal law and started its uniA-ersal regeneration. Two chapters here describe the influences of the Revolution in its own country and in Germany. The fifth and last period, that of ^Modern Criminal Law in the 1800 s, is thus ushered in. It is a period of determined and incessant efforts to reform the criminal law radically while re- writing it in codes. But the constant contemporary advance of science, political principle, and sympathetic thought has been so rapid, and the rooted mass of worn-out older principles has been so great, that no one advance in legislation has long sufficed to meet the demands. And so the history of the century has been, on its surface, little more than a catalogue of these successive legislative eftorts. Here the four chapters devoted to the codifications of this period, and ending Part I, prepare us for Part II, the history of the theories of criminal law. As a part of this vast activity in legislation, law-makers have been led to reconsider basic theories of criminal law. To study its progress on the subjective side we there- fore retrace our steps, and examine the dominating theories, in their development since men began to reflect on the purpose of law. Through Greece and Rome, the Christians, the medieval philosophers, the religious and the intellectual reformers, we reach at last the scientific era of the nineteenth century ; and the history of theories merges into the current disputations of our own times. ^ ' For a more elaborate account of current scientific theory in criminal law since the middle of the 1800 s, the reader mav be referred t"o C. Bernaldo De Quiros' "Modern Theories of Criminality'"' (Vol. I of the Modern Criminal Science Series). Xl EDITORIAL NOTE Pursuant to the plan of the Editorial Committee to introduce each Volume of this Series with a word from both a British scholar and an American scholar, the Committee preferred a request, four years ago, to Luke Owex Pike, Esq., barrister of Lincoln's Inn, and assistant Keeper of the Public Records. The request was cordially granted. Mr. Pike's notable work, "The History of Crime in England," distinguished him as the natural speaker for the purpose. His sound scholarship in his edition of the Yearbooks of Edward HI and in his "History of the House of Lords" placed him among the most eminent of England's historians. In later correspondence, since the outbreak of the War, Mr. Pike indicated his intention (assented to by the Editor) "to wTite, as it were, a new chapter of the history of criminal law on the Continent, in accordance with the object- lessons which the Continent is now providing." This intended chapter, however, has been lost to the world. In October, 1915, the preliminary proofs of this book were forwarded to Mr. Pike ; but before the end of that month he had passed away ; and no manuscript draft of an Introduction could be found among his papers, other than some unfinished notes made in prepa- ration. Instructions had been left by him to destroy all papers "except those relating to the Continental Legal History Series published under the auspices of the Association of American Law Schools." Evidently the fulfilment of his plan had been postponed until the expected arrival of the proofs ; which came at last, but too late. The editorial plan for an Introduction on behalf of British legal science has nevertheless been enabled to be fulfilled, by the courtesy of Mr. Justice William Renwick Riddell, of the Supreme Court of Ontario. His dis- tinguished name and his charming personality are familiar to the Bar of the United States ; and his scholarship is attested in a long list of essays, indicating the natural zest of the historian to be uniquely compatible with the wisdom and practical activities of the judge. His goodwill to the cause represented by the present Series had already been shown by his Introduction to \'olume V ("History of Continental Criminal Procedure"), and tliis emboldened the Editor to solicit the renewal of the favor. J. H. W. February, 1916. xli INTRODUCTION By William Renwick Riddell^ This work is of extreme value to those who desire a scientific and philosophical knowledge of the principles underlying the criminal law, punislmient for crime, commutation and pardon ; and sidelights are cast by it upon criminal procedure. Its chief value therefore will be to the legislator and to him who wishes to influence the legislator, to the Executive and those concerned in the execution of the judgment of the Courts. The difficulties experienced in other times and other countries, and the manner in which the\' have been met and in part o\ercome, are object lessons wliicli the statesman and the reformer cannot afford to neglect. We English-speaking peoples may not segregate ourselves from the rest of humanity — we have our own conceit in the superiority of our own "culture"^ which we treasure in proud and for the most part harmless self-satisfaction. But if and when that self- complacency goes so far as to make us wholly regardless of what other peoples are and do, it ceases to be harmless — the harm being infinitely greater to ourselves than to the "foreigner." One of the lessons here taught — indirectly indeed — is the essen- tial and fundamental unity of mankind ; "there is a great deal of human nature in man." With tJie Greek the blood of a man who had been slain cried aloud for vengeance, just as the Hebrew record represents Yahweh as saying to the first murderer, "The voice of thy brother's blood crieth unto me from out the ground " : the Roman said "Natura partes habet duas, tuitionem sui et ulciscendi jus", and Breathitt County lives up to its natural rights so declared. 1 LL.D., F. R. Historical Society, etc., Justice of the Supreme Court of Ontario. - StKi an article by Dr. John II. Wigmore on "The International Assimilation of Law," 10 Illinois Law Review at p. 387 (January, I!)10). xliii INTRODUCTION The Jew was ordered to stone to death all of his clan who sought after strange gods; and while in the Roman system there was in theory no regard to religious opinions, a way was found to deal with the Christians, "a pestilent and pernicious sect" who were chiefly characterized by minding their own business and securing their eternal welfare. The Church possessed means of punishing heretics in the Middle Ages and before and after ; and the IMor- mons in our Canadian West are secure from persecution only be- cause certain of their theological antagonists have not the poAver as they have the desire. "Eppur si muove!" The conception of what constitutes crime changes from generation to generation. The Chorus in Euripides' "Bacchse" who ''dod^(ovaa) Bpo/jiia) TTOvov rjSvv Kafiarov r eu — KOLfXaTOV, ^(XK')(^LOV €ua^ofX€ua (vv. 65-67), sings CO fiaKap, oarc^ evSaifJLCop reXera^ 9eoiv elScb^ ßiorav dyiarevet Kol dtaaeverac -^Irv^äv ev opeaaL ßa'^yevtjiv öaioL^ KaOapp-olaiv Tci re fiarpo'i /xeydXas 6p- •yia KuySeXa? defiirevcov (vv. 72—79), undoubtedly expressed the opinion of the poet and of his hearers.^ But sacred as were the Bacchantes and their orgies to the Greek, the Roman took a different view of them. The Senate thought " ut omnia Bacchanalia Romse primum, deinde per totam Italiam, diruerent", and decreed "Ne qua Bacchanalia Romae neve in Italia essent" (Livy, xxxix, 18). This was no "brutmn fulmen"; hundreds were executed in public or in private, more were im- prisoned or banished. Xor do I find that the Bacchanalia of Rome were worse — they could not be worse — than the orgy of Agaue, when she slew and dismembered her son. 1 I quote Beekttith's edition of Weeklein's version (Boston, Ginn & Co., 1886) — "öodfovo-o" substituted for Ood^w for grammatical reasons. The Chorus speeding on her glad toil, her happy task, raising the Bacchic shout, cries "O happy he who to his blessedness, knowing well the divine mysteries, sanctifies his life, and is in soul initiated into rhe orgiastic band with holy ceremonies solemnh'^ performing Bacchic rites in the mountains — and celebrating the prescribed orgies of the mighty Cybele." xliv INTRODUCTION The Flagellantes of [No other volume was published. The author planned a General Handbook, of which the first volume was to be this history. — Ed.] liii author's preface In order to attain our purpose — to obtain really practical results — it has seemcfl necessary to precede the historical treat- ment of particular Ic^al principles with a general history of Ger- man criminal law. I do not, however, mean a history in the sense that one may expect to find therein a compendium of all the rules of criminal law which have ever existed, but rather a history in which an endeavor is made to present in a manner, clear but sufficiently concrete, the essential elements of each period treated in conjunction with the history of general progress. JNIoreover, not only a history of the law is necessary ; there must be also a historv^ of the philosophy of criminal law — a history of the theories of criminal law. For philosophy is part of history ; in a certain sense it is as a mirror, reflecting in general conclusions the activities of the times and their causes, and shedding light upon the future. Philosophy has exercised a remarkable influ- ence upon the field of criminal law, and this will be even more so in the future. Moreover, such a historical treatment should criti- cise the value of the individual theories, not only according to the criterion of their abstract correctness, but also in the light of their relation to the practical exigencies of that stage of progress of which they were a part. The question may certainly be raised, in view of that investiga- tion of details which is constantly going on, whether it is permis- sible for one to announce an intention of writing a general history of German criminal law. Undoubtedly in such a history there will be numerous gaps and deficiencies. Yet, in our estimation, it is desirable that there be undertaken, from time to time, such a general history of a branch of our law ; since otherwise the results of the minute investigation of historical details would upon the W'hole remain inaccessible for the solution of single points of the law, and for the general comprehension of the practitioner and those who are influential in legislation. As to the treatment of specific points in such a general history, there will necessarily be dift'erences of opinion. Completeness is impossible, if the leading and essential features are not to be lost sight of in the mass of several details. The author must exercise considerable tact in regard to those matters as to which there is dispute, and he must bear up as best he can, if he is so unfortunate as to displease many and satisfy only a few. It can be hoped only that the author should have knowledge of the individual details in suflScient measure, and especially that he should not merely hv AUTHOR S PREFACE rely upon works which have been written concerning the history of his subject, but that he should avail himself of the best original sources. This last, and in my opinion indispensable, requirement placed a limitation upon my activity, — i.e. to deal only with the history of the German criminal law and to exclude the history of the law of other peoples whose progress is closely related, and to exclude also the history of the Norse criminal law. However, an occa- sional reference may be made to foreign law and foreign legal development.^ A short history of the Roman criminal law (which to a very considerable extent was "received" by us) is necessary. Fol- lowing established custom, I have dealt with it from the begin- ning — notwithstanding the fact that, theoretically speaking, a history of the German criminal law should begin with German law, and the "received" foreign law should constitute only an incidental element. I have done this for the reason that the "reception" of the Roman law — at least, the indirect influence of the same — began at a very early period, — so early indeed that, with the sources at our command, a history of pure German law would cover a period, the limits of which could hardly be established with any degree of certainty. Everywhere, as an ideal in my work, I have had before me a "liebevolle Hingabe", and so it will be in the future. It was not my purpose to create, to achieve new and brilliant results. I considered it well worth the while in this work to take the results achieved by others, and, in a general, accessible treatise which should not appear so learned and abstract as to be deterrent, to make them useful to a wider circle of readers. Possibly the history of criminal law will appeal to a considerable number of laymen, and perhaps also to many of the profession. However this does not preclude me from occasionally arriving at a new conception. I have always been of the opinion that those new ideas which are permanent in the theory of law are only developments of that which has gone before, and not absolutely new and startling. It is from this point of view that I regard my own conception of the fundamental principle of criminal law. Perhaps it contains only 1 In the history of the theories of eriminal law, attention is driven only to those foreign writers who can be shown to have had an actual influence upon the German literature. Iv AUTHOR S PREFACE that which seems of permanent vahie in the earlier theories, and regarded in this way it is not original. But originality can not well exist in a work whose purpose it is to collect divergent mate- rials, and in which the individual feels that his share in the great sum total of scientific development is exceedingly small. Such is the character of this work; and, in accordance with my pur- pose as before stated, an attempt is made merely to recognize as far as possible the relative truth, the permanent elements in the divergent views. This standpoint of relative correctness {i.e. of all theories) may be announced as the ideal of this entire work, in which the author gladly recognizes the special merits of other comprehensive works upon the subject of criminal law, and especially the "Handbuch" of Holtzendorff, consisting of individual contributions, and also Halschner's new "System." The existing treatises by Berner, Schütze, Hugo ]Meyer, and Von Liszt are directed towards other purposes, and consequently do not render superfluous the work here undertaken. ivi PART I GENERAL HISTORY OF CRIMINAL LAW TITLE I. THE ROxMAN AND GERMANIC ELEMENTS CHAPTER I. THE ROMAN LAW. CHAPTER II. PRIMITIVE GERMANIC LAW. HISTORY OF CONTINENTAL CRIMINAL LAW Chapter I THE ROMAN LAW §1. §2. §3. §4. §5. §6. §7. §9. Various Origins of Criminal Law. Vengeance. In- fluence of the Priesthood. Rome. Prominence of Re- ligious Element. Roman Law not a Theocratic System. Early Suppres- sion of Vengeance. Suppression of Vengeance in Cases of Homicide. Influence of the Principle of Vengeance in the Treat- ment of Other Crimes. "Perduellio." "Multae Irrogatio." Roman Conception of the Relation of the Individual to the State. Germanic Conception of the Rela- tion of the Individual to the State. ContriI)Ution of Roman Criminal Law to the p]stal)lishment of Individual Rights. The Judicial Law of the Empire. Real Explana- tion of Arl)itrary Char- acter of Roman Criminal Law. Tlie Law TaV)les. Power of "Paterfamilias" as Supplement to Criminal Law. The Censorship. Infamy. "Actiones Populäres." Other Criminal Legislation of the Republic. Statutes of Later Republic. of tlio Twehe § 10. Punishment in Statutes of Later Republic. Opposi- tion to Death Penalty. §11. Gradual Change in Char- acter of the Criminal Law. § 12. Cliange in the Character of Exile as a Punishment. Increased Use of Capital Punishment. Corporal Punishment. Imprison- ment. Hard Labor. Other Methods of Pun- ishment. § 13. Infamy and Confiscation of Property. § 14. The Range of Criminal Law. § 15. The Crime of "Lese Ma- jeste." § 10. Persecution of the Chris- tians. § 17. Sorcery and Soothsa.ving. § 18. General Circumstances Af- fecting Imperial Criminal Law. (1) Class l*ri\'ilege. (2) Administration of Jus- tice by State Officials. (3) Continued Disregard for the Criminal. (4j Re- version to more Primitive Conditions. § 19. Inilueiice of the Jurists. § 20. Influence of Christianity in the Later Empire. Pro- tection of State Sought by Numerous Penal Statutes. Otiier Effects of tiie In- fluence of the Church. Last Stages of the Roman Criminal Law. § 11 ROiMAN AND GERMANIC ELEMENTS [Paut T, Title I § 1. Various Sources of Criminal Law. Vengeance.' — The existence of two modern doctrines, concerning the nature of crimi- nal hiw, — one of which regards punishment as a necessary consequence of crime, and the other would justify punishment as 1 In regard to the matter contained in this chapter, the following Avriters may be consulted. Invernizzi, "De publieis et criminalibus judiciis Romanorum" (1787. Leipzig edition, 1846); Welcher, "Die letzten Gründe von Recht, Staat und Strafe" (1813), pp. 535 et seq.; Ahegg, "De antiquissimo Romanorum jure criminali" (1823); Jnrcke, "Versuch einer Darstellung des censorischen Strafrechts" (1824) ; Köstlin, "Die Lehre von Mord und Todtsclilag " (Part 1, 1838, "Das altrömische Parricidium") ; Osenbrüggen, "Das altrömische Parricidium" (1840); "Geschichte des römischen Criminalproeesses " (1842); Plattier, "Quaes- tiones de jure criminum Romano, pra^sertim de eriminibus extraordi- nariis" (1842); Rein, "Das Criminalrecht der Römer von Romulus bis auf Justinian" (1844); Laboulaye, "Essai sur les lois criminelles des Romains concernant la responsabilite des magistrats" (Paris, 1845); Du Boys, "Histoire du droit criminel des peuples anciens" (Paris, 1845), pp. 237 et seq.; Walter, "Geschichte des römischen Rechts" (2 vols., 3d ed., 1860); Rudorff, "Römische Rechtsgeschichte" (2 vols., 1857, 1859); Von Holtzendorff, "Die Deportationsstrafe im römischen Alter- thume" (1859. Part of larger work by same author in regard to the punishment of deportation); Köstlin, "Geschichte des deutschen Straf- rechts im Umriss, herausgegeben von Gessler" (1859), pp. 1-47; Geib, "Lehrbuch des deutschen Strafrechts" (1861), Vol. I, pp. 7-123 ; Henriot, "Moeurs juridiques et judiciaires de l'ancienne Rome" (3 vols., Paris, 1863-1865); Von Ihering, "Geist des römischen Rechts" (citations to 3d edition). Vol. I, pp. 252 et seq. ; Von Holtzendorff, "Handbuch des deutschen Strafrechts" (I, 1871), pp. 16-39; Mommsen, "Römische Geschichte"; Monunsen, "Römisches Staatsrecht" (2 vols., citations to 2d edition, 1876, 1877); Von Wächter, "Beilagen zu Vorlesungen über das deutsche Strafrecht" (1, 1877), pp. 56-77; A. Pernice, "Antistius Labeo, das röm. Privatrecht im 1. Jahrhundert der Kaiserzeit" (II, 1878); Padeletti, "Lehrbuch der römischen Rechtsgeschichte" (German edition by Von Holtzendorff, 1879); Zumpft, "Das Criminalrecht der römischen Republik" (2 vols, in four divisions, 1865 and later, deals essentially with procedure). Compare also: Thonissen, "Etudes sur I'histoire de droit eriminel des peuples anciens" (2 vols., Paris, 1869), and Thonissen, "Le droit penal de la republique Athenienne precede d'un etude sur le droit criminel de la Grece legendaire" (Bruxelles and Paris, 1875). [For more recent literature, see: Accarias, "Precis de droit romain" (Paris, 1886-1892); Cornil, "Droit romain" (BruxeUes, 1885); Ferrini, "Diritto penale romano" (Milano, 1898); Brunnenmeister, "Die Tödt- ungsverbrechen im altrömischen Recht" (Leipzig, 1887); Monunsen, "Römisches Strafrecht" (Berlin, 1888, 1899) ; Zaumar de la Carrera, "De- recho Romano" (Barcelona, 1883); May, "Elements de droit romain" (Paris, 1891) ; Rada y Delgado, "Elementos de derecho romano" (Madrid, 1887); Ronga, " Instituzioni di diritto romano" (Torino, 1889-1890); Monunsen (with Brunner, Goldziher, ct al.), "Zum aeltesten Strafrecht der Kulturvölker; Fragen zur Rechtsvergleichung " (1905); v. Ihering, " Das Schuldmoment im römischen Recht " (in his "Vermischte Schriften ", 1879) ; Hepp, "Die Zurechnung auf dem Gebiete des Civilrechts" (1838) ; Strachan- Davidson, "Problems of Roman Civil Law" (2 vols., 1912); Ferrini, "Diritto penale romano" (Milano, 1899). — Vox Thot.] [Both in the text and in the notes the German method of referring to the Corpus Juris has been followed. An explanation of this method of quotation can be found, e.g., in Sohm's "Institutes of Roman Law" (English translation by Ledlie, p. 17). — Transl.] 4 Chapter I] THE ROMAN LAW [§ 1 a means of attaining a future end, — bears a certain analogy to the origin of criminal law, which may itself be traced to two sources. One of these sources is the principle of vengeance as a retaliation for a wrong.^ The other source lies in the subordination of the individual to some higher authority ; this authority, whether it l)e the family, the clan, the community, or e\en the State, is one which strives to maintain a certain degree of order, for purposes more or less clearly defined and understood. In the history of different peoples, these two principles are mingled and confused in various combinations. Vengeance exercised b^' the individual is not readily subject to restraint, and tends to undermine the established authority, and for this reason the latter seeks to limit its exercise. But the only way in which the established authority can do this is, within certain limits, to take charge of the vengeance of the individual and exercise it in his behalf ; for the essential nature of the spirit of vengeance is such that it will not submit to being arl)itrarily set aside. There are also times when the established authority deems itself to be directly attacked ; on these occasions it too — like any other avowed enemy seeking revenge — proceeds against the individual and proclaims him as its foe. The execution of such a criminal law, wherein the established authority is directly concerned, can be assigned to any in(li^•idual among the people who volunteers his service. The public authority is as yet too weak to proceed independently to inflict punishment through its own agencies ; or perhaps it is obliged to consider the indignation of the people because of the wrongful act, and perceives that it can make this public indignation especially eft'ective to accomplish its own pur- poses. In such cases, as a matter of course, whosoever volun- teers to act as the punishing agent in behalf of the community is obliged upon demand to justify his act, in like maimer as he who exercises vengeance in his own behalf.'' 2 There can be no dispute as to the fact that the principle of vengeance is a root from which the criminal law has sprung, — although it is loss in evidence in eases where there has Ix-en an aclvance in culture. Cf. TlioHix- sen, II, pp. GÜ et seq. and p. 258, in regard to l)lood revenge ("Blutrache") among the Hebrews. Among the Arabians there are three cardinal vir- tues : valor, hospitality, and zeal for vengeance. According to the Greek conception, the ])lood of a man who has been slain cried out for vengeance, until his relativ(>s wreaked vengeance upon th«' slayer. If they failed to act, there fell upon them a severe curse. Cf. Meier und Schömaun, "Der attische Process", p. 280; Cicero, "Topica". c. 23. "Natura partes habet duas, tuitionem sui et ulciscendi jus;" [Köhler, "Zur Lehre von der Blutrache" (188.')).] ^ Cf. especially as to the relationship of the "coercitio" and the "judi- § 1] ROMAN AND GERMANIC ELEMENTS [Pakt I, Titlk I Influence of the Priesthood. — Thus it comes to pass that vengeance is exercised, not so much as the expression of an indi- vidual instinct, but rather as the servant of a higher ideal,"* and that herein it often stands in conjunction with the precepts of rehgion. The crime offends the gods — the guardians of justice and morahty ; and the punishment which destroys the wrongdoer, purifies the sacred soil of the fatherland, which has been polluted by the commission of the crime,^ and appeases the anger of the gods. Thus, punishment acquires to some extent a religious significance and coloring, and comes under the influence of the priesthood. It is safe to assume, moreover, that, if the priest- hood is inclined to be lenient in its judgment of the act that has been committed, a way will be found by which the anger of the gods can be appeased in some manner other than the destruction of the criminal ; ^ and on the other hand, the party seeking revenge finds moral support, and in some cases real assistance, if the agents of the deity have proclaimed the act as one entailing the curse of the deity. There are also acts which are in the nature of direct at- tacks upon the sanctity of the gods — upon the duty of allegiance owed to them. In such cases, the priesthood itself often exercises vengeance. Where the priesthood comes to be the predominating influence in the community, it is easy to understand that such dut}' of allegiance to the gods becomes one of first magnitude, and moreover that there come to be regarded as breaches of this duty many acts which by other peoples are considered merely viola- tions of natural or civil law and not deserving punishment at all.^ eatio" of the Roman magistrate and the origin of the "judicatio" in the "eoercitio", Mommsen, "Römisches Staatsrecht", I, pp. 133 et seq., 153 et seq. "The 'judieatur' is nothing other than a regulated and re- stricted form of the 'eoercitio.'" ^ As to the ideas of the inhabitants of India, cf. the "Laws of Manu," edited and translated by Thonissen, I, pp. 9, 10; [Köhler, "Das Indische Strafrecht" (" Zeitschr. für vergl. Rechtswissenschaft," 1903, XVI, 179.] As to these ideas, among the Israelites, see the Bible, Numbers, xxxiii and XXXV. 5 According to the Greek and Oriental conceptions, the slayer must at least be driven from the country, the soil of which has been moistened by the blood of the slain. Cf. Odyssey, XV, 272: "otrui tol Kai iydiu iK iraTpl5os, äudpa KaraKräs e/JL(f>v\ov . . ." ^ As to the cities of refuge ("Asjdstädte") among the Hebrews, which furnished a protection to the slayer against the avenger of blood ("Goel"), when the kiUing was not premeditated, see the Bible, Exodus, xxi, 12, 13 ; Thonissen, II, pp. 264 et seq. '' [Note by L. von Thot. — Since the criminal law of Greece had much in common with the primitive criminal law of Rome, a brief description of the former will be of interest. Modern accounts may be found in the foUomng treatises : Leist, 6 Chapter I] THE ROMAN LAW [§ 2 § 2. Rome. Prominence of Religious Element. — In the hiy- tory of Rome, from the most remote periods of which we ha\e " Grseco-Italische Rechtsgesehiehte " (1884); Glolz, "La Solidarite de la famille dans le droit eriminel en Greec" (1904), and "L'ordalie dans la Grece primitive" (1904); Mommaen, "Zum aeltesten Strafreclit" (cited in Note 1 above; article by Hilzig); Loening, "Geschiciite der strafrechtlichen Zurechnungslehre. Vol. 1 : Die Zurechnungsleiire des Aristoteles" (1905); Kraus, "Die Zurechnungslehre des Aristoteles" ("Der Gerichtssaal ", 1904, LXV, 1.53, 172; a critique of Loening's volume) ; Tesar, " Staatsidee und Strafrecht ; das griechische Recht ...bis Aristoteles" (1914); Abb. des krim. Inst. Univ. Berlin, III ser., I, 3]. In the Epic Period, e.g. in Homer, we find traces of blood vengeance. However, as Leist says: "It is certain that in tlie time of Homer, the system of blood vengeance was not in complete operation. The ' Kaai'ivyyoi re fTaire ' are those from whom the slayer has to fear death. It was a sacred duty to punish the murder of 'waTdes' and ' Kaffiyv-qroi' '' (Leiat, " Graeeo-italisehe Rechtsgesehiehte", Book II, Part III, §46). In the Odyssey, we read that Minerva praised Orestes because he had slain ^gisthus, the murderer of his fatlier (Odyssey, I, 298). Theo- clj^menus tells Telemachus that he is a fugitive from his fatherland, because of the slaying of a fellow citizen, and that the man who was slain had many relatives and comrades, who have power to kill him (Odj^ssey, XV, 272-278). IVIoreover, Odysseus says that he who has slain one of his own countrymen who has only a few to avenge him, must, nevertheless, leave his parents and his fatherland (Odvssey, XXI II, 118-120). For the period succeeding the Epic period, the laws of Draco may be mentioned. These made a distinction between homicide '(k wpovolas', and " fXT) €K vpovoias' (i.e. homicide with and without malice aforethought). The Athenian state, in the period of its ascendancy, had a special and highly developed system of criminal law, which has been partially preserved in the works of the historical and philosophical "\^Titers. The old criminal law of Attica contained the following punishments : capital punishment, imprisonment, banishment, public dishonor ("in- famia"), money fines, and branding. Capital punishment was inflicted in the following methods. Criminals of the common class were put to death by hanging, but slaves or those whose home was without the State might be slain with a heavy club. Otiier methods were those of burning alive, strangulation, and beheading with a sword. Often the condemned was given a cup of poison to drink. Other methods were suffocation and the casting of the condemned from a higli rock. Stoning, empale- ment and crucifixion wer(> also emj)loyed. The Athenian criminal law made use also of punishments by mutila- tion — the putting out of one or both eyes, the cutting off of the right hand, and the tearing out of the tongue. Flogging was einployed as a means of corporal punishment. Imprisonment was but little used in Athens as a punishment. It was em])l()yed, however, when one had not paid a debt or had been convicted of theft. In such cases the condemned was obliged to spend live days and nights in jail, where he was chained and exposed to the derision and abuse of the multitude, linprisonnient on a ship was also practiced. Banishment was either for life or tempo- rary. One method was that of ostracism, which was as a rule limiti'd to cases of a political significance or in which the public order was concerned. However, it was seldom resorted to. We obtain many references to i)unislnnent from the '\\Titings of various authors. It was a fundamental principle that the i)unishinent of a slave should be corporal [iJonoslluncs, "Androtion". GlOj. Confiscation of property was incident to ])anishment {Scliol. in Aristophanes, "Vesp.", 947). The names of those who were condemned to death were erased 7 § 2] ROMAN AND GERMANIC ELEMENTS [Part I, Title I knowledge, we find the above-mentioned elements of criminal law, from the record of citizens (Dio Chrysostom, "Rhodiaca" 31). If a woman condemned to death was enceinte, the execution was postponed (Plulnrch, "de sera num. vind.", 7). Those condemned to death were for three days before the execution of the sentence permitted to enjoy food and wine {Zenobius, III, 100). A man who had been sentenced to capital punishment was permitted to choose between the sword and the rope (Suidas). Where several were sentenced to die, the various execu- tions took place on consecutive days, the order being determined by lot (Schol. in Aristophanes, "Pac", 364). There was, for murderers, no right of refuge (asylum) {Lycurg. e. Leverat. § 93). As to the fundamental principles of criminal law, the following points may be noticed. AU accessories to a crime were punished alike, whether they be instigators, originators, or participants. Where the act was in- tentional the penalties fixed by law were inflicted, but where the act resulted from carelessness, there was an acquittal. In crimes of a serious character, there were no periods of limitation in favor of the criminal. Taking up the crimes specifically, — high treason, ordinary treason, rebellion directed towards the overthrow of the democratic form of constitution, and sedition were punishable with the death penalty and confiscation of property. Counterfeiting and perjury were treated in the same way. Any one who, in a temple, before a court, before a magis- trate, at the public games, or in an assembh', used offensive language towards another was sentenced to pay a fine of five drachmas. Attempts against life were punished wdth very severe penalties. Incitement to murder was also regarded as a crime — the instigator being subjected to the same penalty as the actual perpetrator. Attempt at murder was regarded in the same light as the consummated act. The penalty for murder was death or banishment for life and confiscation of property'. Murderers were deprived of aU public and private rights and forbidden to take part in all religious ceremonies, and if they refused to leave the country of their own accord, were put to death. The elements essential to constitute the crime of murder were inten- tion, absence of legal justification and the Athenian citizensJiip of the man who was slain. Assassination and poisoning constituted a special type of murder and both were punished with death. He who killed another tlirough accident or negligence was obliged to at once leave the State, and remain in foreign parts until permitted by the relatives of the deceased to return. This crime also entailed religious penalties. Parricide was punished with the death penalty. The junior Archons (" eecTMoö^rat") might kill those who were banished on account of murder. In fact, anyone was allowed to kill them, but the law forbade that they should be tortured or that a composition be required of them. If anj'one killed in a sacred place a man who had been condemned to death, he was made to suffer the same punishment as was to have been inflicted upon the man whom he killed. He who plundered the property of a murderer who had not been sentenced to lose his property, was punished with a money fine. The law regarded self-defense as a justification. No punishment was inflicted upon a man who slew another whom he found in an actual illicit relation ^\-ith his wife, mother, sister, daughter, or concubine. The right hand of a man who took his own life was cut off and buried apart from the body. If any one died as a result of a fault of a physician, the phj'sician was not regarded as a murderer. Assault and battery of a man, woman, or child was punished by a fine not exceeding 1000 drachmas. In later times this offense was punished more severely, i.e. with death. Capital punishment was inflicted upon the highwayman and upon one who had carnal knowledge of a girl against her will. If a man seduced a girl, and was himself unmarried, he was compelled to marry her. Severe Chapter I] THE ROMAN LAW [§ 2 The relijjioiis element is especially prominent. Thus the word " supplicium ", meaning punishment, and particularly capital punishment, is of religious origin. It signified, at first, a sin offering — a sacrifice with prayers for mercy — and is derived from " sub " and " placare " (to appease). ^ Often, when a crime - had been committed, special sacrifices were performed to appease the anger of the gods ; the criminal was declared to be " sacer ", ^ and, as an outlaw, cast forth from the communion of gods and men. Any one who killed him performed a task pleasing to the gods.^ " Leges sacratie " was the name later given to certain laws, whic-h penalties were inflicted for depri\ang a Greek citizen of his libertj^ wnthout just cause. As other punishable acts, Plato mentions : offenses against religion, batterj-, the tearing down of walls, robbery, and theft. He who had stolen an object that was sacred, was punished by a confiscation of all his propert}% and his corpse could not be buried in Attica. The criminal law of Sparta was of a different nature. It was dis- tinguished by its extraordinary severity. Thus we know that a young Spartan, who had sewn a purple stripe on his tunic, was punished with death (Plutarch, "Instit. Laced."). We know also that the Spartans had stringent laws against refusal to enter into the marriage relation. The young people were punished with loss of honor and property, and were stripped of their clothing in the market place in the winter,' while the people sang derisive songs {Plularch, "Lye", 27). There is record of a judgment in the time of Lycurgus, by which a youth was subjected to a fine, because he had placed upon some goods a selling price which exceeded the real value, and thereby gave evidence of his own avarice. A king was compelled to pay a fine because he had won the hearts of all the people, although their admiration was justifiable {Pint., "Agesilaos ", 6). These examples sufficiently reveal the severity of the Spartan system. A detailed examination would reveal many features in the Spartan legislation, distinguishing it from that of the rest of Greece. Thus we know that in Sparta theft was permissible. The vital matter was that the thief should not be caught. If he was caught, he was whipped for his lack of sldll. It was not until a comparatively late period tliat the embezzlement of pul)lic funds was punished by banishment. Offenses against morality were punisiied in Sparta by death. Theft in places that were sacred entailed the same penalty; as did also bribery of a priest or priestess, treason, rebellion, or infidelity in military affairs. The usual method of capital punishment was strangulation. But the Spartan criminal law also availed itself of decapitation, casting from a high rock, and the cup of poison. Among other methods of punishment, mention may be made of deprivation of honor and civil rights, banish- ment, and monej^ fines.] ' Rein, p. 29. Also the words "castigare" (i.e. "castum agere") and "luere" (i.e. "prenam lucre") refer to purification. - [The Roman law used various expressions to designate a crime, e.g. "fraus", "scelus", "maleficium ", "flagitium ", "peccatum ", "di'lictum ", "crimen", "probum", etc. All these expressions are used interchange- ably. However, "maleficium" appears to have been more appropriately applied to a crime committed by a slave, and "scelus" to an offense against religion: Ferrini, "Diritto penale Romano", p. 36. — Vox TiiÖt.) ' Deprivation of property as a punishment was in ancient times called "eonsecratio bonorum." * I agree entirely with von Ihcring, I, pp. 281, 282, who calls attention to the analogy of the Norse "Wargus", " Waldgäugers." Mommscn, 9 § 2] ROMAN AND GERMANIC ELEMENTS [Part I, TiTLE I in an emphatic manner prescribed the death penalty for any one who dared to viohite the sacred rights of the Plebs (which were relatively the rights of the individual citizen), and such a one was called " sacer " ("quem populus judicavit ").^ Moreover, the capital punishments inflicted l)y the State were executed with customs which strongly remind one of the offering of victims as a sacrifice to the gods.^ Roman Law not a Theocratic System. — However, the old Roman criminal law did not, primarily, rest upon a theocratic foundation. The punishment was merely increased because of the curse of the gods. Because of their curse the individual was required to destroy the criminal, or at least to break off all rela- tionship with him.' But the determination of the elements which constituted a crime was little influenced by a regard for the gods. We find nothing corresponding to the death penalties inflicted in the theocratic community of the Hebrews,^ for a departure from the faith, nonobservance of holidays, and blas- phemy. The acts which placed the accused in the position of " sacer " were more essentially those pertaining to the interests of the family and of the civil community.^ The patron who violated his duty of good faith toward his client ; ^^ the son who wronged his father ; ^^ the daughter-in-law who repudiated the sacred duty of allegiance to the family — each of these became " sacer." An old law, dating back to the time of Xuma, pro- claimed as " sacer " the destroyer of boundary marks.^^ By "Römische Geschichte", (6th Ed.), I, p. 175, is incorrect in his statement that such a slaying without judicial procedure is contrary to aU ci\ic systems of law. ^ C/. Festus, "De verb, significatu" under "Sacer Mons ", and Huschke, p. 197, note; also Bible, Deuteronomy, xiii, 6-11; xvii, 2-5. Those who came to have knowledge of the forbidden departure from the Jewish faith were required forthwith to stone the guilty, although it is certainly possible that there could also be a judicial conviction. In Rome, also, a. denunciation and public execution of the "sacer" was possible: Rein, pp. 32, 33. ^ Mommsen, "Staatsrecht", II, p. 49, says that every death penalty was originally, in Rome, the offering up of a victim as a sacrifice. ^ Thonissen, II, p. 313. » Plinius, "Hist, nat.", 18, 3. Cf. Gellius, 11, 18. ^Plainer, p. 26, is quite correct in the statement: "Civitate potius religio quam religione civitas continebatur." '" Diongsius H., II, 10, states that the cUent also who ^^olated his duties was declared "sacer." ^\ Festus, "Yerh. Sig.", under "plorare" gives as a statute of Servdus Tullius : "Si parentem puer verberit, äste oUe plorassit, puer divis paren- tum sacer esto." ^- Ibid., under "termino," "Numam statuisse accepimus : eum qui terminum exarasset, et ipsum et boves sacros esse." 10 Chapter I] THE ROMAN LAW [§ 3 the Twelve Tables the thief stealing grain in the night was threat- ened with death. In like manner, by the maxim, " Suspensumque Cereri necari jubebant ", ^^ it is evident that a law affording so effective a protection to property was certainly not of a religious nature." There appears to be only the intention, on one hand, to arouse a special feeling of repulsion towards the crime, anrl, on the other, to make the prosecution — probably rather lax in the case of many crimes, because e.g. of the existence of family relations — an especially vigorous one, by an appeal to religious sentiment and by granting the right of immediate execution. The only crimes which bore an essentially religious character were those acts which were directly detrimental to the sacred cults of the State ; and these were few.^'' Apart from the disciplinary punishment against insubordinate priests, the only crimes clearly of this nature were violations of the chastity of the \'estal \'ir- gins ; these, for the priestess, entailed the penalty of being buried alive ; ^^ for her admirer, death l)y flogging. ^^ Early Suppression of Vengeance. — It is a peculiar characteristic of the Roman criminal law, tliat private vengeance was suppressed at a very early period. We find it, in a pure form, in none of the legal provisions which have survived, and from these provisions we are justified in drawing certain wider conclusions as to its non-existence. § 3. Suppression of Vengeance in Cases of Homicide. — Power to deal with cases of murder (" dolose Tödtung ") ^ was acquired 1' As to all these cases, cf. Abegg, pp. 45 el seq. '* There is nothing inconsistent with the denial of the theocratic char- acter of the early Roman criminal law in the acceptance of the fact that the priests exercised a consideral)le influence upon the law and especially upon the criminal law. The Roman priests were State officials and this influence was a logical consequence of the fact that originally the tem- poral and spiritual powers were in the same hands: Moinmacn, "Rom. Staatsrecht", II, p. 49. 1^ Fesluti, "Verb. Sig." under "pelliees" states: "Pellex aram Junonis ne tangito ; si tanget, Junoni crinibus demissis agnum feminam cajdito." 1« In the earliest periods tlie Vestal also was flogged to death. '^ PUitner, p. 27, is of the opinion that only slaves of the priesthood were dealt with under this criminal power of the priests. In that case the criminal power of the latter could be regarded as purely a disciplinary one. It is a fact, that there could be an investigation by State authori- ties of those who have been absolved, as it were, by the priests. • [There are differences of opinion as to whether the element in murder spoken of as "dolus" corresponds to malice aforethought. According to Leist, "Griico-l talische Rtn-htsgeschichte ", p. 370, the conception of "dolus" combines legal conception of intention and also of premeditation. Ferrini, " Diritto penal(> romano", p. SO, on the contrary, asserts that the Roman "dolus", especially "dolus malus" signifies the "animus occi- dendi." In his opinion this is evident from the "Lex Cornelia ", in which 11 § 3] ROMAN AND GERMANIC ELEMENTS [Part I, TiTLE I by the public criminal authorities at an early date. " Qusestores parricidii ", - and a sentence of death because of a slayin<>; done intentionally and in the heat of passion, are to be found in the well known story of the Iloratii.^ There is record of a provision in the laws of Nurna Pompilius, reading as follows : " Si quis hominem liberum dolo sciens morti duit, parricida esto." ^ By these same laws, in cases of homicide resulting from negligence (" culpose Tödtung "), vengeance could be avoided by the sacri- fice of a goat as a sin offering. Since the State was concerned in the killing of one of its citizens, this sacrifice must be made " in concione ", i.e. in the public assembly. On the other hand, it is certain that the right of the husband or father to take immediate vengeance upon an adulterer, when found " in flagrante ", long continued in existence. The " Lex Julia de adulteriis ", enacted in the time of Augustus, in addition to enabling a complaint on the grounds of adultery to be brought I 'dolus" signifies "animus occidendi", and certainly in the sense that if the "animus" exists, it is immaterial whether the killing be public or secret, done with violence or with cunning. One ma^' imply in the word "dolus" a certain intention to injure. This appears from Cicero, who says : "Quod ergo es animo factum est, ut homines eadem facerent, id si voluerunt et perfecerunt, potestis earn voluntatem, id consilium, id factum, a dolo malo seju7igere .^" ("Pro Tullio", c. 10, 13, 14). There are also often found the expressions, "consulto", "sponte", "sciens et prudens", which, according to Ferrini, proves that the Roman criminal law made distinctions between different kinds of homicide. This differ- entiation was clear, since these various expressions were different designa- tions of one and the same conception, i.e. "dolus." Vogt is of an opposite opinion ("Römische Rechtsgeschichte", p. 39). He says that the word "consulto ", to which Ferrini refers, is equivalent to the word "premedita- mente". and thus when a statute in dealing with homicide uses the word "consulto", it has reference to homicide done with premeditation, i.e. one finds in Roman law a correct conception of murder. We prefer the opinion which justifies Ferrini' s \aewpoint ; yet his conclusions seem incorrect and even daring. The meanings of "con- sulto", "sponte" and "sciens et prudens" etc. are identical, but are not the same as "dolus." This certainly is true of "consulto." The idea originally contained in "consulto" was that of meditation, of delibera- tion, taking one's own counsel. The conception is rather of the result of the meditation and deliberation ; the determination upon the realiza- tion or non-realization of the purpose, i.e. malice aforethought. These ideas make the opinion of Vogt appear preferable. — Vox Thot.] 2 There are differences of opinion as to the derivation and original meaning of the word "parricidium", which later signified the murder of near relations. Rein, p. 450, adheres to the derivation from "pater" and "csedere." Others prefer the derivation from "parens" and "cjedere." Osenhrnggen cleverly proposes that it meant merely a wicked ("dolose") slaying, the word being derived from "para" which is equiv- alent to "per", -with the same meaning as in "perjurus" or "perfidia." Huschke, p. 183, says it is derived from "parem csedere" and refers to the killing of an equal, a fellow comrade from among the people. ' Livy, I, 23. * Fest us, "Verb, sig." under "Pariei Quaestores." 12 Chapter I] THE ROMAN LAW [§ 3 in a " judicium publicum ", also contained detailed provisions calculated to restrict, as far as possible, the exercise of vengeance in such cases. From Gellius (N. A., X, 23) " in adulterio uxorem tuam si prehendisses, impune sine judicio necares ", it may be inferred that theretofore the right had been given a wider range, and especially that the husband might instantly slay the wife apprehended in the commission of the guilty act."' Influence of the Principle of Vengeance in the Treatment of Other Crimes. — Prior to the Twelve Tables recourse to vengeance \^ was often taken in cases of personal injury.*^ The Twelve Tables established the " talio " as the limit to which vengeance might be exercised,' in case the offender was not able in some other way to settle with the injured party. ^ In the case of lesser injuries — 5 C/. Abegg, "Untersuchungen aus dem Gebiete der Strafrechtswissen- schaft" (1830), p. 166. The husband could slay the adulterer, but not the wife, and could only slay the former if he belonged to the "viliores personae." The father was permitted to slay the adulterer, provided, at the same time, he slew his own daughter. ^ [The statutes prior to the Twelve Tables constitute the so-called "Jus Papirianum." These contain the "Leges regime", and were com- piled by the Jm-ist Caius Papirianus. These statutes forbade the kill- ing of children over three years of age under penalty of confiscation of property. But if the eliild was disobedient or a cripple then the act was unpunished. The daughter-in-law who mistreated her father-in-law became "exsecrata" and could be slain with impunity by anyone. In- tentional slaying was punished as "parricidium." He who killi'd another unintentionalh' was obliged to give "aries" to the relatives of the slain. The son who killed his father became "sacer" and anj'one had the right to kill him. ('/. Dionigi in Capuano, "Dottrina e storia del diritto romano" (Napoli, 1864); Sigonius, "De antique jure civili Komano ", lib. 1, e. 5 ; Capobianco, "11 diritto penale di Roma" (Firenze, 1894), pp. 19-22; Bruns, "Fontes juris romani antiqui" (Tübingen, 1860). — Vox Tho't.) ^ The familiar provision in the Mosaic Law (cf. especially. Exodus, xxi, 24: "Ej'e for an eye, tooth for a tooth" (Do unto others what they do unto you), and other numerous and important examples of "talio" (cf. as to Greece, Hermann, "Lehrbuch", note 9 ct seq.; "et Ke irddoi rä k epe^e, Siktj kI deta 7^foiTo"), are not direct commands but rather limitations upon the right of vengeance, which the legislator was able to limit before he was able completely to suppress. Cf. especially, ThonUsen, II, p. 66. * That only bodily injuries done intentionally are referred to, may be inferred, on one hand, from the inclusion by Gains, imder the delict of "injuria", only acts done "dolo", and, on the other, from the above- mentioned provision relative to a negligent ("culpose") slaying. If in the latter case the relatives of the slain man were obliged to be satis- fied with the oft'ering of a victim in expiation, in the case of bodily injuries they would not have a more extensive right of revenge. Kosllin, "Älord und Todtschlag", p. 44, and Von Ihcring, "Das Seliuldmonient in röm. Privatrecht" (1867), p. 11, are of another opinion beeau.se of the passjigo of Gellius, XX, 1, §34. But the words "dcct-mviri — neque ejus qui membrum alteri rupisset — tantam esse ]ial)en(lam rationem, ut an prudens imprudeiisve rupisset, spectandum i)utarent" refer (according to a more correct interpretation) to a case where the blow was given 13 § 3] ROMAN AND GERMANIC ELEMENTS [Part I, TiTLE I " OS fractum aut collisiim " as distinguished from " membrum raptum " — the " taho " was completely excluded, and the in- jured party was granted a definite compensation.^ The method of dealing with theft was more closely related to the principle of private vengeance. The Twelve Tables per- mitted the killing of the " fur nocturnus " ^° and the armed thief (carrying weapons for his own protection). But in the later law this was allowed only as an artificial extension of the right of self- defense ; and still later it was limited to actual self-defense/^ since the man whose property was being stolen had the right to seize the thief whom he caught in the act. Moreover, the pun- ishment provided for " furtum manifestum " was undoubtedly influenced by a regard for private vengeance.^- " Poena mani- festi furti ex lege XII tabularum capitalis erat ; nam liber ver- beratus addicebatur ei cui furtum fecerat" {Gains, IV, 189). Here the " addictio " was a substitute for the ancient right to kill. "dolo ", and the special kind of injury was intended, as we to-day, in the classification of bodily injuries as "grave" and "minor", make a dis- tinction in the consequence of the act. For of a "Violentia pulsandi atque laedendi ", which as Gellius, loc. cit., says should be restrained, there can be a doubt only in case of an intentional ill-treatment, and not in case of merely negligent ("culpose") injury in the doing of a thing that is legally permissible, and only with the former is the conclusion of the passage consistent — "quoniam modus voluntatis prsestari posset, casus ictus non posset." One has it in his power to determine whether he will give a blow or a kick, but it is not in his power to injure according as the blow or kick happen to reach their mark. 9 The most important passage is Gains, III, 223, — "Poena autem injuriarum ex lege XII tabularum propter membrum quidem ruptum talio erat, propter os vero fractum aut coUisum trecentorum assium poena erat veluti si libero os fractum erat; at si servo CL: propter ceteras vero injurias XXV assium poena erat constituta." As observed by Gains, in accordance with the value of money in the early periods ("in magna paupertate"), these fines were by no means as insignificant as they appear. 1" "Decemviri in XII Tabulis — dixerunt — Si nox furtum factum sit, si im occisit, jure csesus esto." Macrob. Saturn. I, e. 4. Cf. Gellius, VIII, 1. XI, 18: "furem qui manifesto furto prensus esset, tum demum oceidi permiserunt (XII Tab.), si aut cum faceret furtum, nox esset, aut interdiu telo se quum prenderetur, defenderet." Cicero, "Pro mil." c. 3. "CoUatio leg. Mosaic." VII, pr. L. 9 D. Ad leg. Aqu. 9, 2. Cf. Abegg, "Untersuchungen", p. 142. ""CoUatio", VII, 2: "Paullus, Libro V ad legem Corneliam de sieariis et veneficis. Si quis furem noeturnum vel diurnum, cum se telo defenderet accident, hac quidem lege non tenetur : sed melius fecerit qui eum comprehensum transmittendum ad pr^esidem magistratibus optulerit." Idem c. 3, § 1: "Pomponius dubitat, num h®c lex sit in usu." Paulus, in L. 9 D. ad leg. Corn, de sieariis 48, 8: "Furem noeturnum si quis occiderit, ita demum impune feret, si parcere ei sine periculo suo non potuit." 12 For the definition of "furtum manifestum" see especially Gaius, III, 184. 14 Chapter I] THE ROMAN LAW [§ 3 In order to prevent the party whose i)roperty was stolen from taking immediate vengeance ^^ — a difficult thing to prevent when the thief was caught in the act — his rights were extended as far as possible. ^^ Consequently, " furtum manifestum " at a later time was a basis for the praetorian action for a fourfold penalty/^ while in " fur nee manifestum " only a two- fold penalty could be claimed.^'' It is easy to understand why in a case of theft (except theft of field-produce, as above men- tioned), there is nothing said as to the thief becoming " sacer." The law proclaimed as " sacer " the man against whom it required vengeance. But the legislator, in view of the attitude which exists everywhere in uncivilized times (one need only consider " A slave, according to the Twelve Tables, forfeited his life ; he was flogged and then cast from a high rock : Gellius, N. A. XI, 18. ^* Cf. Hepp, "Versuche über einzelne Lehren der Straf rechtswissen- schaft" (1827), pp. 132 et seq. '* Other explanations are not satisfactory, cf. Hepp, pp. 110 et seq.; Rein, p. 298, note; Zumpft, I, p. 37G. That the thief caught in the act is always a very daring and dangerous person, is certainly not true ; on the contrary he is just as likely to he a cowardly person. The proposi- tion, that some special favor should be shown to the man who is vigilant as to his property, is too artificial for acceptance. His vigilance is cer- tainly rewarded in any case, since he retains his possessions, and rewards and inducements for guarding one's property against unlawful acts are generally superfluous. The explanation that one who, because of fear, is not in a position to judge fairly, will inflict, upon the thief, who is caught in the act or who confesses, only the extreme penalty, is not satisfactory, in that it does not apply to a confession. Moreover, there is nothing to be said relative to the greater offense to the man whose goods are stolen by a "furtum manifestum." The fact that he is caught in the act is for the most part merely a consequence of a lack of skill on the jiart of the thief. The view taken in the text is also in accord with the early Roman conception, in L. 7. § 1 D. "De furtis," 47, 2, which required for a "furtum manifestum" the actual ai)prehension of the thief, and was not satisfied witli the immediate knowledge that the act had lieen com- mitted. In the time of Justinian {cf. § 3 J. 4, 1), the origin of the special legal rules in regard to "furtum manifestum" were no longer understood, — hence the wider extension of the concej)tion. It was an artificial ex- tension of "furtum manifestum," as daiiis himself says (111, 194), that according to the Twelve Tables he was considered a "fur manifestus" in whose home the stolen goods were found by means of a formal search ("lance et licio"). Tiie individual with whom the stolen i)r()perty was found without such a formal s(>arch had to pay three times tlieir value because of "furtum conceptum" (not however if he could immi'diately show he had acquired tlie goods lawfully). This provision )>uiiislu'(l the receiver of stolen i)roperty. For the protection of the formal searching of a house there existed the "actio furti i)roliibiti" for fourfold the value of the stolen article, against iiim who did not permit a searching of the house when demanded in the proper manner. ('/. RudorjJ, 11, p. 352. "^ A private settlement with money was frequently made, e\en before the Twelve Tables, as indicated l)y the old form of complaint: "pro fure damnum decidere opportere." The Praetor merely adopted an es- tablished custom. Cf. RudorjJ, II, p. 350. 15 § 4] ROMAN AND GERMANIC ELEMENTS [Paut I, TiTLK I our own peasants), had little oeeasion to provide rigorous and summary punishment for injuries to property rights. The one exception, having to do with theft from the fields, may readily be explained as a concession to established custom and considera- tions of public policy. § 4. " Perduellio." — In cases of homicide, private vengeance and private compensation disappeared at an early date, and were replaced by public punishment. The small Roman community, surrounded as it was by many enemies, regarded the murder (" dolose Tödtung ") of one of its citizens as an attack upon its own strength and prosperity, and as a breach of the duties owed to it by the individual. This circumstance had a significant bearing upon the Roman criminal law. Originally, the only crime against the State, as such, was " perduellio ", i.e. the individual assuming as towards the State the relation of war (" duellum " = " bellum " ; " perduellis " = base or evil enemy). It included, primarily, betrayal of the country to a foreign enemy, desertion to the enemy in time of war, and attacks upon the institutions of the country by the under- taking of acts which could be regarded as encroachments upon the supreme rights of the State. There were included among such acts, in the time of the Republic, attempts to establish a despotism, and attacks upon the magistrate of the Plebs, who was declared to be especially sacred, and in the time of the Empire, attempts against the person of the emperor. According to the Roman conception, any act, in consequence of special circumstances, could be regarded as criminally prejudical to the interests of the State and be dealt with as such. Judgment in such cases was passed by the holder of the sovereign power, — in the early periods, by the king ; later, in accordance with the " Lex Valeria ", by the people, when appeal was taken to them as a tribunal of last resort ; and, in accordance with the Twelve Tables, by the people as a court of first instance, in the " comitia centuriata." " Perduellio ", as shown by the form of the com- plaint : " Tibi perduellionem iudico ",^ was not so much the criminal act as rather the position in which the offender was placed as a punishment — the treatment of hhn as an enemy of the State.^ Under such conditions, it was also possible to regard 1 Livy, I, 26, 7 ; cf. XXVI, 3. 2 Correct view, Rudorff, II, p. 365, note 1, and Huschke, p. 185, note 109. To the contrary Rein, pp. 466 et seq. 16 Chapter I] THE ROMAN LAW [§ 5 as " perduellio " the murder of a citizen/'' e.g. the murder of the sister in the story of the Horatii. On the same ground the Senate was able later, without further authority, to prosecute as State criminals the Bacchantes (a corrupting influence among the Roman women), since they appeared to have attributes prejudicial to the public welfare. The further criminal character of either the act or its author was of no consequence. " Multas Irrogatio." — This indefinite character of "per- duellio " is especially noticeable in its plebeian counterpart, the " multse irrogatio " on the part of the plebeian magistrate."* Since the laws declared that violations of the sacred rights of the Plebs were acts reducing their author to a relation of war towarrl the Plebs, it was possible for the Tribunes of the Plebs (or perhaps the xEdiles) to levy upon the offender heavy fines, the amount of which would be arbitrarily fixed by the Plebs (" multse irro- gatio "). As acts entailing such a penalty, there appear (in addition to e.g. attempts to establish a despotism, retention of an office beyond its term, engaging in war without the order of the Senate, abuse of official power, and offending the people by vain display) also acts such as partiality in the distribution of booty of war, appropriation of public money to one's own use, employ- ment of the army for private enterprises, abuse of the censorship, offenses against religion, sorcery, usurj% and even lewdness and other offenses against morality in its narrower sense. § 5. Roman Conception of the Relation of the Individual to the State. — The exceedingly indefinite character of the old State crime — which originally was the only public crime — rests, in our opinion, not upon the nature of the crime itself,^ but rather upon the peculiar Roman conception of the relation of the indi- vidual to the State, i According to the Roman conception the individual has no rights which the State is bound to respect. This is forcibly illustrated by the well-known absolutism of the magis- ^ Cf. Nissen, "Das Justitium, eine Studie aus der römischen Reehts- geseliichte" (1877), pp. 24 et seq. ^ Cf. especially the excellent investigations of Iluschkc, pp. 145 el seq., and particularly the remarks on p. 179. ' Herein we differ from the opinion of Iluschke, "Crime as such is a mere ethical negation; it has in itself no valid distinction, since 'non entis nulla sunt pnT?dicata"' (Ifu.'iclike, p. 211). I believe that wrong ("Rechtsverletzung") and punishment are here interchanged. Crime, as a wrong, must have definite limits, just as it is necessary that there be a dehnitive establishment of the right that has been violated. How- ever, punishment was originally of but one kind — banishment from the community or death. 17 § 5] ROMAN AND GERMANIC ELEMENTS [Part I, Title I träte in the time of the RepubHc, who, during his term of office, was regarded as directly representing the " populus." It appears also in the absence of any means by which an official act of a magis- trate could be treated as null and void.- Furthermore, it is shown by the fact that the State treasury (" fiscus ") could not be made a party to an action,^ and also, later, by the absolute power of the emperor. There were, to be sure, some laws which sought to guarantee to the citizen, as against the State, a definite range of legal rights (and all laws relating to the " judicia publica " were such), and sought to place definite limitations upon the originally unrestricted criminal law of the State,"* and thereby render it more certain in its operation. But according to the Roman conception these were only voluntary concessions on the part of the State, which at its discretion might be withdrawn, and are not consequences of an adherence to a uniform legal ideal. Consequently any such concession could be withdrawn, e.g. by the appointment of a dictator, if the Senate declared the State to be in danger.^ Thus it is easily explainable why the right to liberty of the citizen as against the magistrate, since it was merely the result of a positive concession, was limited to the city of Rome and its immediate vicinity.^ Germanic Conception of the Relation of the Individual to the State. — According to the Germanic conception — and this comparison seems to us to be especially appropriate as an illus- tration — there obtain quite different conditions. The rights of the individual as against the State are not based upon some posi- tive law, liable to be modified at discretion or suspended in its operation by the enactment of some other law, but are based upon that ideal of law of which contract and statute are merely the expression. Even the king, according to the Germanic concep- tion of law, must submit to the jurisdiction of the court. Against the State treasury (" fiscus "), and against the State as a legal entity, " jura quaesita " in the fullest sense may be obtained. ^ Against this there was effective only the intercession of a " par majorve potestas." ' Cases in which the "fiscus" was concerned were later decided by the "procurator fisci" and not by the court. ■• As to this point, see the above cited work of N^issen. * This also explains the fact that the Romans, especially in the time of the Repubhc, often gave to their criminal statutes an "ex post facto" effect — "qui fecit, fecerit" — without considering it as anything out of the ordinary. Cf. Seeger, "Abhandlungen aus dem Strafrecht" (II, 1862), p. 1 et seq. ^ Cf. Puchta, "Institutionen", I, § 51, note 6. 18 Chapter I] THE ROMAN LAW [§ 5 Personal rights follow the Germanic individual ever\nvhere, and decrees derogatory thereof are null and void. Contribution of Roman Criminal Law to the Establishment of Individual Rights. — The significant bearing upon the world's history, customarily ascribed to the Roman Law " as a factor in assisting the individual human being to assume a position of importance "per se", and to acquire, to a certain extent, a posi- tion of independence towards the State, is contrary to fact. These results were obtained only when the Germanic ideal of law had impressed itself upon the progress of humanity^ ]\Ioreover, it is not true that in these respects the Romans were clearly in advance of the Greeks. The much greater strictness shown in limiting the jurisdiction of the Athenian magistrate, the actual and careful protection in Athens of the rights of the individual ^ as against the State, speak to the contrary. At any rate there did not prevail in Athens the Roman conception that the rights of the State are unlimited ; that the individual should be fashioned after an ideal model ; and that he could, arbitrarily, be reared as a component unit of the State. We do not find in Rome statutes enacted with a primary regard for the welfare of the individual, such as those of Zaleukos and Charondas penaliz- ing evil association, or those of the Locrians penalizing the drink- ing of unmixed wine, or even those of Solon, which punished the lack of a business or trade,^ and endeavored to prevent suicide.'" While it, indeed, may be said that the Roman State made a sharper distinction than the Greek, between law and morality, yet it gave to the individual no rights inviolable as against the State. This accounts for the many respects in which the Roman crimi- nal law occupies an unfortunate position for comparison with the private law. It also explains the brutal (it may well be called) manner in which the statutes, the imperial constitutions, and the " senatus consulta " penalized acts which, in themselves, did not in any way violate a right — and perhaps could be regarded only as remotely prejudicial to a right. It also explains that element of indefiniteness and of analogy to regulations laid down by the police power, which characterizes the most comprehensive ^ C/. e.g. Hildenhrand, "Geschichte und System der Rechts- und Staats- philosophie ", I, p. .524. 8 Especially in criminal procedure. ^Hermann, " Lehrljuch der griechischen Privatalterthümer ", § 00, note 4, seq. 'ö Hermann, § 62, note 27. In Athens, the hand of one who had committed suicide was cut off. 19 § 5] ROMAN AND GERMANIC ELEMENTS [Pakt I, TiTLE I of tlio Roman criminal statutes," which, in order surely to reach })reliminary acts, gave to them the same legal effect as the crimes to which they might refer. It also explains the fact that judicial practice in the field of criminal law, at least in its operation in the Roman State, has in part performed only a labor of Sisyphus, which did not produce real results until our own time. The theory of the Roman private complaint, in which legal principle obtained in a purer form, is often of more importance for us than the utterances of the Roman jurists concerning the " crimina publica." At least these utterances need to be supplemented or modified by reference to the private complaint before they become useful for our purposes.^- " Laboulmje, p. 265, explains this peculiar character of the composition of the criminal statutes by the statement that they were statutes whose purpose was to confer jurisdiction, and were of the same nature as statutes assigning to one and the same "quaestio" power to deal with different delicts. But jurisdiction was not the only matter with which the criminal statutes of the Republic were concerned. They also fixed punishments. Moreover the fact that more attention was given to the matter of juris- diction than to an exact definition of the crime (c/. Laboulmje, p. 304) is further evidence of the arbitrary manner in which the Romans dealt with the substantive criminal law. 12 The "Lex Cornelia de sicariis", a statute which governed the entire later development of the law relating to homicide, is an illuminating example of the method of procedure of the Roman criminal legislation. Carrying weapons with the intention of killing some one or merely with the intention to accomplish a theft, the manufacture or purchase of poison which was eventually to be given to some one, the starting of fires in the city of Rome and its immediate vicinity, the bearing of false witness with the purpose of causing capital punishment to be inflicted upon another, the bribery or the unfairness of a magistrate or "judex qucTBstionis" with the same end in view, the illegal condemnation of a Roman citizen by a magistrate or the Senate without a "judicium pub- licum" (c/. Cicero, "Pro Cluentio ", c. 54), — these were all included under one and the same statute, a statute which forbade intentional homicide. By imperial constitutions and decrees of the Senate there were also added the crime of castration and even the holding of "mala saerificia" {cf. L. 1, 4, 13 D. "Ad leg. Corneliam de sic", 48, 8). The "Lex Cornelia de falsis" furnishes another example. By an extension of this statute (by decree of the Senate) anyone was punished for "fal- sum" who took money for suppressing evidence, and also, according to the " Senatusconsultum Claudianum", he who, in writing the testament of another, wrote out a disposition in his own favor, even at the request of the testator and perhaps "optima fide" (L. 15 pr. D. eod. ; L. 3 C. "De his qui sibi", 9, 23). Here the mere possibility of a forgery sufficed to entail a criminal punishment. The "Lex Julia de adulteriis" without further enquiry punished as a procurer the husband who did not disown a wife whom he had apprehended in an act of adultery (L. 2 § 2 D. 48, 5). The "Lex Julia de vi" punished those who possessed an unusual quantity of weapons, nor were they allowed to prove that they had these weapons for a special purpose which, in itself, was legal. Also those were punished "qui pubes cum telo in publico fuit." All these cases were grouped with cases of actual violent attacks upon villages, of "stuprum violentum ", and of theft with force of arms dm-iug a conflagration. 20 Chapter I] THE ROMAN LAW [§ 6 It might be argued in reply, tliat only statutes designefl to serve a temporary end are being considered. But the description as a statute designed to serve a temporary end can not be applied to e.g. the " Lex Julia de adulteriis", enacted in the time of Augus- tus. Also the fact that laws, which if they were partly of a tem- porary nature could for centuries form, as it were, the skeleton of the public criminal law, and the fact that no later attempt was made to replace these laws by others of more definite legal principles, but that the further development of the criminal law in the imperial constitutions and the " Senatus consulta " fol- lowed the same arbitrary method is a sufficient revelation of the character of the Roman criminal legislation. § G. The Jurisprudence of the Empire. — The legal science of the jurists of the time of the Empire ' represents in many respects the reaction of the ideal of law against arbitrary methods of legis- lation. We notice that there was an endeavor to separate more strictly the various kinds of crime, which in the earlier statutes were grouped together at random. An attempt was also made to introduce more proper distinctions of the degrees of guilt. But for the most part it was impossible to remedy the statutes' lack of an exact statement of the acts constituting the crime. The interposition of legislation which was not supported by fixed principles and traditions {i.e. in this later period, the imperial constitutions and the " Senatus consulta ") made the task more difficult. The ultimate result is that, in the public criminal law, arbitrary and accidental rules are far less widely separated from that which is of permanent value, than in the private law. Real Explanation of Arbitrary Nature of Roman Criminal Law. — The final and real explanation of the peculiarly arbitrary char- acter of the Roman criminal law is to be found in the fact that the constant wars in which, from the very beginning, the small Roman State was obliged to struggle for its existence, precluded, from the outset, the idea of a fixed and rigid boundary between acts which were essentially criminal and morally culpable, and those which merely were likely to prove dangerous. An act which, at other times, has no special significance, may in times of danger, assume a very difierent character. There is a tendency, for the ' Cf. also Fadelelti, pp. 258 el seq. Pernice, pp. 1 et seq., is of the opinion that to a ffrcat extent the treatment by the Roman jurists of the erimiiial law can be shown to be without principles and superficial. I doubt if his criticism and conception in this respect are correct. 21 ^ 7] ROMAN AND GERMANIC ELEMENTS [Paut I, TiTLE I sake of a prompt and vigorous repression and to avoid the diffi- culty of proof, to apply the full statutory j)enalty to eases in which a more exact and proper consideration would reveal a substantial defect in the facts necessary to constitute the crime. " In hello (populus) sic paret ut regi : valet enim salus plus quam libido." ^ Since such times of danger were of frequent occurrence, and since, as was doubtless the case, the military training to which the citizens were subjected for the greater part of their lives made such a method of dealing with criminal law appear natural, and since, as already remarked, the freedom of the Roman citizen counted for little (outside of the immediate vicinity of the city), it was natural that the permanent legislation came to show no understanding of the difference between acts which are really criminal and acts which are merely dangerous. In addition to this there is the fact that, immediately after the time of the kings, the entire criminal jurisdiction (primarily as a result of the " provo- catio " against the decrees of a magistrate) devolved upon the popular assembly which also possessed the legislative power, and were not strictly bound by statute ; it passed judgment upon the person — the character of the accused — more fre- quently than upon the facts which constituted the basis of the complaint. There is connected herewith that paramount consideration which was always given to " dolus " in the " judicia publica ", and that neglect of the issues of fact relating to the crime. Even to-day, in State crimes, there is a tendency to give especial weight to (as the Romans would say) the " animus hostilis " against the " res publica." § 7. The Law of the Twelve Tables. — The law of the Twelve Tables is somewhat opposite in character to the other criminal legislation of the Republic. Its purpose, as already noticed, was clearly and firmly to set forth, as a protection of the Plebs against arbitrary treatment, the law which actually prevailed ; to be a codification — in which, however, development along certain lines was not precluded. The provisions of the Twelve Tables are not of that indefinite character, analogous to the regulations by the police, which is later so often met with. In addition to the rules, already mentioned, relating to murder (and possibly to manslaughter resulting from negligence), to theft, and to bodily injuries, the Twelve Tables also contained ^ Cicero, "De rep.", I, c. 40, § 63. 22 Chapter I] THE ROMAN LAW [§ 8 provisions prescribing the death penalty for treason,^ for (inten- tionally) setting fire to a house or to a supply of grain lying near a house,^ for bearing false witness, for corruption when acting as a " judex " or " arbiter ",^ and for inventing and si)reading satires and scurrilous stories.^ It is recorded that the Twehe Tables punished (presumably with death) the utterance of magic for- mulas ' to the detriment of another's person or another's crops. ^ Possibly they also contained other criminal provisions/ and also provisions in the nature of police regulations and against extrava- gance (e.g. prohibition of burial within the city) ^ and limitations upon expenditure in funeral processions and l)urials.^ § 8. Power of the " Paterfamilias " as Supplement to Criminal Law. — Because of the simple conditions of life in the early periods of Rome, a great number of public criminal laws was not necessary. In the first place, the criminal law was supplemented by the very extensive criminal and disciplinary power of the head of a household over the children, married women, and slaves under his control. Since this authority in no way precluded the exer- cise of the public criminal power, it was often optional with the accuser whether or not to invoke the public power, and it often depended upon the discretion of the magistrate whether or not he would interpose his authority. There were also subjected to the disciplinary power of the head of the household ^ many acts ^ "Qui hostem concitaverit quive civem hosti tradiderit." L. 3 pr. D. "Ad leg. Jul. maj.", 48, 4. 2 L. 9. D. "De incendio ruina", 47, 9. ' Gellius, XX, 1, §§7, 53. The false witness was to be thrown from the Tarpcian Rock. '' Zumpft, I, p. 482 refers this provision to satirical songs of a political nature. ^ "Qui fruges excantasset . . . neve alienam segetem pellexeris." Cf. Bruns, "Fontes juri Rom. antiqui" (3d ed.), p. 28. * The holding of assemblies by night in the city was also punished. "Primum XII tab. cautum esse eognoseimus, ne quis in urbe ccBtus nocturnos agitaret." Bruns, lac. eit. p. 31. ' (^onc(>riiing poisoning. Cf. also L. 236 D. "De V. S.", 50, 16. " "Hoiniiicin niortuiun in urbe ne sepelito neve urito." Bruns, p. 33. 9 Cf. Bruns, pp. 33, 34. • A comphiint could also be lodged against slaves by virtue of the "Leges." In this case the usual punishments (e.g. fines), since they had no property, were inapplicable. Cf. L. 12 § 4 D. "De accusat.", 48, 2. As to "filii familias" i.e. the agnate descendants of a "pater familias", cf. L. 6 §2 D. "Ad leg. .Jul. de adulter." 48, 5. Perhaps the relation of the jurisdiction of the State to that of the "familia" was that "de facto" the judgment of the Iiead of thi- household was respected. Undue severity of the liead of tlie family gnuhuiUy came into disfavor. Prominent women were spared the sliaiiie of a public execution, since when sentence had been passed they were turned over to their family for execution. Livy, XXXIX, 13. Zumpft, I, p. 358. 23 § 8J ROMAN AND GERMANIC ELEMENTS [Paut I, TlTLK I of those under his control, whicli if «lone by a person " sui juris " would come under the jurisdiction exercised by the Censor in matters of morality and custom. The Censorship. — The Censors had no power of punisliment as such. But they possessed the right to draw up the list of citi- zens liable to taxation and entitled to vote. Since every official act of a magistrate was valid and effective, regardless of its funda- mental character, they did not consider themselves governed strictly (i.e. in matters of taxation) by the relative amount of the taxable property' ; they also regarded themselves as authorized to prejudice and " pro tanto " take away the political rights of an individual ^ for the duration of the census,^ by transferring him to another " tribus " (by the " inter aerarios referre ") ^ and by the omission of his name from the list of members of the Senate. In this manner he could be directly exposed to the disrespect and contempt of the multitude.^ The Censors exer- cised their power in this same way in cases of perjury — w^hich was not a criminal act by the civic law ^ — and also in cases of undue desire shown for innovation in proposing legislation, of lack of respect for the old statutes, of violation of the duty of respect due to authority, of extreme although not criminal cruelty, of neglect of discipline and morality in marriage, of celibacy, of undue luxury, and of bad management of household affairs. Infamy. — The provisions of the civil law relative to infamy (" infamia ") can also be regarded as supplementary to the crimi- nal law. He, against w^hom judgment was passed as defendant in certain civil complaints based upon either a tort (" delict ") or a breach of trust, became " infamis." This entailed the loss of the capacity of holding offices of honor and the right to vote in the public assembly, and also brought certain disadvantages in 2 For personal unworthiness. Juristieally speaking, the "Xota cen- soria" was not a punishment ; it could result from a punishment : Cicero, "Pro Cluentio", c. 42 et seq. Cf. Plainer, p. 13. ^ The new Censors could with the new "lustrum" revoke the official acts of their predecessors by simply changing the lists. Thus there was often "ipso facto" a "rehabilitation." Loss of honor as a result of a "judicium" had a more lasting character. * Later "aerarii" ceased to exist, and the power of the Censors was limited to the right to transfer from one of the honored rural "tribus" to one of the four "tribus" of the city: Mommsen, II, p. 384. 5 According to the Ovinian " Plebiscitum " (442 a.u.) the power of the Censors was extended to drawing up the Ust of members of the Senate. Mommsen, "Staatsrecht", II, p. 397. ^ For an ample statement of the different cases, see Jarcke, pp. 16 et seq., and Mommsen, II, pp. 364 et seq. 24 Chapter I] THE ROMAN LAW [§ 8 legal proceedings," which we at the present time would consider as not entirely unimportant. A man also became " infamis " when judgment was passed against him as defendant, in an " actio furti", " actio injuriarum", " actio fiduciaria", or any of the fol- lowing "actiones", viz., "pro socio", " tutelse ", " mandati ", and " depositi " (" directa ").^ An insolvent whose goods were seized and sold by his creditors by virtue of a " missio in bona " became " infamis." Infamy also resulted from actions in tort, in which the defendant avoided the passing of judgment against him by the payment of money. There were also a few cases, which we would treat as crimes, to which infamy ^ was the immedi- ate and unfortunate, but only consequence.^'^ " Actiones Populäres." — The " actiones populäres " " also con- stituted a later suj^plement to the criminal law. In these actions, a private person, by means of a civil procedure, laid claim to a money penalty which he received if the action was successful.^- These cases,^^ as far as we have record of them, were founded, for the most part, upon the Edict of the Praetor; they generally dealt with matters which in modern times are subject to the police jurisdiction, or else had to do with injuries caused by negligence.^'* Thus, liability to an " actio popularis " was incurred \)y nnitila- tion of the Edict of the Praetor which was posted in a public place, by the killing or injuring of a man with something thrown out of a building, by the unauthorized erection of structures in a public place or way. Violation of graves, etc. was also thus penal- ized. In a certain sense, the severe civil law obligation to make com- pensation e.g. for injury to another's slave, in accordance with the ^ In respect to the capacity to be represented by others before a court or to represent others before a court. In certain cases incapacity to be a witness also resulted. L. 21 pr. D. "De testibus", 22, .5. ^ L. () §7. D. "De his qui notantur infainia", 3, 2. "Contrario judicio damnatus non erit infamis : nee inuneriti), nam in contrariis non de perfidia a^tus, sed de calculo qui fere judicio soU't dirimi." ^ If one appointed an agent, the effects of infamy wi-re avoided : L. (i § 2. D. 3, 2. For this reason it was impractical under the later law : cf. Savigni/, "System des röm. Rechts", II, p. 175. '" lie also became "infamis", "qui bina sponsalia, binasve nuptias in eodem tempore habuerit." " The time when the "Actiones populäres" originated is not e.xaetly known. 1- [C/. the "Penal Actions" of the English Law which were so popular with Parliament in the early 1800 s. — Tkansl.] '•^ As to the individual cases, cf. Waller, II, §802; Rudorff, II, § 46. '^ ('/. e.g. concerning injury liy wild animals which were kept near the pubhc highways, L. 40-42 D. "De anlil. edicto", 21, 1. 25 § 9] ROMAN AND GERMANIC ELEMENTS [Part I, TiTLE I Lex Aquilia, and, generally, the large number of private penalties of the civil law, may be regarded as supplementary to the criminal law. § 9. Other Criminal Legislation of the Republic. — The other criminal legislation of the Republic — except that of the last period — has for us little of interest. During the aristocratic period of the Republic, crimes against private persons — " quum et res et cupiditates minores ", as Cicero says,^ were seldom com- mitted by persons who were " sui juris." ^ As a result, substan- tially the only penal provisions were those against infringement of the rights of the Plebs, violation of the right of appeal to the people (" provocatio "), ^ hindering the election of the Tribunes of the people,^ and the infliction of corporal punishment upon Roman citizens by a magistrate.^ There were also statutes for the protection of public and political rights, and further laws against luxury (" leges sumptuariae ") ® as continuations of the provisions laid down by the Twelve Tables. The Statutes of the Later Republic. — The series of later stat- utes, which for us are of more importance, begins with the criminal statutes against the abuses (" excess ") "^ of the magistrates in the provinces. The " Lex Calpurnia repetundarum " (605 a.u.) established a commission to investigate and decide complaints relating to these abuses and became the model for a whole series of such statutes ; which, after Sulla, began also to deal with other 1 Cicero, "Fragm. pro TuUio, §9." 2 Cicero, 1. c. "ut perraro fieret, ut homo occideretiir, idque nefarium ac singulare faeinus putaretur, nihil opus fuisse judicio de vi coaetis armatisque hominibus." ' Thus, soon after the overthrow of the Decemviri, the "Lex Duilia ne quis ullum magistratum sine provocatione erearet ; qui creasset eum jus fasque occidi, neve ea caedes capitalis noxse haberetur." Livy, III, 54, 55. ■* "Qui plebem sine tribunis reliquisset." Livy, III, 55 ("Lex Duilia"). ^ The "Leges Porciae" (as to which, see Waller, I, § 104). Livy, X, 9. "Porcia tamen lex sola pro tergo civium lata videtur quod graA-i poena, si quis verberasset neeassetve civem Romanum, saiixit." La~ boulaye, p. 94, sees in the "Lex Porcia" an extension of the " Lex Valeria ", for the protection of citizens against the power of the magistrates in the Provinces (except as to soldiers). Cf. Cicero, II, "In Verrem", V. c. 55. ^ Frequent mention is made of the "Lex Oppia" against extravagance in the clothing of women (539 a.u.) and the "Leges Orchia, Dedia" ("cibaria") against extravagance in banquets (cf. Walter, I, §.256; Rudorff, I, § 14 [p. 37]). ' Abuse (Excesse) also in the sense of the dishonorable treatment of a Roman citizen. Thus a "Lex Sempronia" ("Ne de capite civium in- jussu populi quaereretur. — • Si quis magistratus judicio quem circum- venerit, de ejus capite populi esse animadversionem") ; Cicero, "Cati- lina", IV, 5; Laboulaye, p. 213. 26 Chapter I] THE ROMAN LAW [§ 9 than political crimes. The immediate practical consequence of most of these statutes was felt in matters of procedure rather than in the substantive law. This was the more so, since the judges, adhering to the traditions of the sovereign assembly in whose place they sat in judgment, often rested their decision not so much upon the specific act as upon the character and disposi- tion of the accused. That extortions ^ of the officials in the provinces should require a vigorous suppression at the hands of the Senate, that the guilty should be compelled to return the extorted sums, and that the tribunes of the people should propose to the people the infliction of a fine (" multa "), were nothing new.^ But, hitherto, an investi- gation would ensue only upon a special petition, or when a tribune might feel himself called upon to intervene. Now the new statute granted the right to proceedings upon the complaint of an accuser, and created for such cases a strictly regulated procedure before a special tribunal of judges, an expedient which to some extent guaranteed a stricter observance of law than in the sovereign assembly itself. This, of itself, led indirectly to an enumeration and definition of the acts liable to this procedure. Since the procedure proved satisfactory, this class of statutes began, little by little, '° to include (at least in part) criminal acts which were directed against the rights of individuals.^^ The constantly sinking level of morality * In close relation to laws against extortion are the laws against fraudu- lently obtaining office ("leges ambitus"), sale and purchase of votes in an election to a public office which in turn was used for extortion in the provinces. (Concerning the earlier laws see Rudnrff, 1, p. 80.) Con- cerning the " Lex Julia peculatus '" (appropriation to one's own use of public property) enacted presumably by Ctesar, cf. Rudorff, I, p. 91. 8 Cf. Laboulaye, p. 192, and Mommsen, II, pp. 289 et seq. ^'^ The important "Leges majestatis" ("Lex Appuleja de majestate minuta" enacted about the middle of the seventh century of the city ; "Lex Cornelia majestatis", 673 .\.u.c. ; "Lex Julia maj.", 708 a.u.c.) referred originally only to acts of the magistrates which wore prejudicial to the honor or paramount riglits of the "Populus liomanus." ('/. particularly Cicero, " In Pisonem ", 21 (50) : " Exire do provim-ia, educere exercitum, bellum sua sponte gerere, in regnum injussu populi ac senatus accedere, quum plurimie leges veteres, tum lex Cornelia majestatis, Julia de pecuniis repetundis vetant." Cf. Laboulaye, p. 207. "Est majestas, ut Sulla voluit, ne in quemvis impune dedamare liceret." Cicero, " Ep. ad div ", 3, 11, 2. The "Lex Julia Ca^saris" laid the founda- tion for the later law ; it is commented upon and continued in the Corpus Juris. " Thus the "Lex Cornelia testamentaria" ("numaria ", "de falsis") a general statute by Sulla dealing with forgery (the bribery of judges was also punished thereunder: Pauli. Ree. S. V, 25 § 2) ; the "Lex Cornelia de sicariis et veneficis " (G91 a.u.c); the "Lex Pompeja de vi" (7U2 27 § 10] ROMAN AND GERMANIC ELEMENTS [Pakt I, TiTLE I made neoessjiry a more vifi^orous suppression of erime. Since the later judicial practice treated the cases subjected to punishment by these statutes only as examples, and imposed its own fjunish- ment " ad exemplum legis "/- one may see in these statutes, to a certain extent (as already remarked), the skeleton of the later criminal law. § 10. Punishment in Statutes of Later Republic. Opposition to Death Penalty. — The nature of the system of punishment in these statutes is peculiar. The old punishment of " sacer esse ", although reverenced because of its antiquity and entitled to moral respect, had, from the juristic viewpoint, come to be a meaningless formula. Some exception may be made for those cases in which it was considered justifiable to proclaim one as the enemy of the country, and as such to kill him, — especially cases of conspiring or attempting to gain the power of king. Judging from facts that are extremely uncertain, a similar and meaningless formula was contained in the above mentioned provisions of the Twelve Tables, prescrib- ing the death penalty for the disloyal behavior of a patron toward his clients.^ In an advanced state of culture, not as yet given over to corruption, the permission granted to the general public to kill some one as a punishment was quite ineffective. But against the introduction of the death penalty into the statutes there struggled the pride of the " Civis Romanus." Foreign kings often received their orders from the Roman magis- trate and senator, and the plain citizen who cast his vote in the assembly for the magistrates and whose vote was solicited by the most distinguished, felt himself in turn a ruler, and a participant in the " Majestas populi Romani." Yet, as is well known, on extraordinary occasions the blood of citizens was shed freely. The disturbances of the Gracchi and the proscriptions in the civil wars were outside the domain of the criminal law. Also, in the provinces, Roman citizens were " de facto " deprived of their goods and lives by violent and wicked magistrates in the most shameful manner. One has only to think of the atrocities which Cicero (with good reason) attributed to Verres. Numerous A.u.c.) and the "Lex Julia de vi" (708 a.u.c.) continued in the "de vi privata" under Augustus. '- CJ. e.g. L. 7, §. 3 D. "Ad leg. Jul. maj.", 48, 4r "si non tale sit delic- tum quod vel ex scriptura legis deseendit, vel ad exemplum legis vin- dieandum est." L. 3 D. "Ad leg. Pomp, de parrieidiis ", 48, 9. * Cf. also, Padeletti, p. 77, who infers an express prohibition in the Twelve Tables against the killing of a man without trial and judgment. 28 Chapter I] THE ROMAN LAW [§ 10 executions resulted from the proceedings of the Senate against the Bacchantes - and against the practice of poisoning which was prevalent among the lioman women/^ Even the killing of the followers of Catiline at the command of the Senate could be re- garded as a deed not entirely without color of law.^ But the thought of the death penalty and the executioner seemed unworthy of the name of Roman. In extraordinary cases these things might be, but their mention in a statute of the later Republic was an impossibility. " Carnifex et obductio capitis et nomen ipsum crucis abest non modo a corpore civium Romanorum, sed etiam a cogitatione, oculis, auribus. Harum enim omnium rerum . . . etiam exspectatio, mentio ipsa . . . indigna cive Romano atque homine libero est." ^ For purely political offenses, and for abuse of public office, deprivation of political rights,^ e.g. deprivation of the right to vote, was very effective. The " Aquae et ignis interdictio ", the prohibition of the use of fire or water upon his native soil, i.e. exile,'^ could destroy the political existence of the accused,^ wdiile the inffiction of exorbitant fines ^ could destroy his economic existence. But one wonders how such punishments could be deemed sufficient in the case of ordinary {i.e. other than political) crimes. ^'^ In the later Republic, murder for hire and poisoning were practised almost as regular professions." Even the killing of parents was not unusual.^- Since the accused had 2 Livy, XXXIX, 18. 3 Livy, VIII, 18 and XL, 37. * Cf. Nissen, pp. 32 et seq. ^ Cicero, "Pro Rabirio", c. 5 (§ 16). * Cf. e.g. Diocass., XXXVI, 21, concerning the punishment of "am- bitus." ^"Exilium hoc est aqua? et ignis interdictio." L. 2 D. "de publ. jud." 48, 1. According to the "Lex Tullia", ten years exile was fixed as a punishment for "aml)itus." Cicero, "Pro Murena," c. 41 (§ 89). ** Since it was only in Rome that poHtical hfe existed. ' ' Cf. relative to the gi-adually increased penalties for extortion in the Provinces, Lahoulnye, p. 239. '"The punishment provided in the "Lex Cornelia de sieariis" was originally merely banishment. Cicero, "Pro Cluentio," c. 71. " Cf.Gengler, "Die straf rechthche Lehre des Verbrechens der Ver- giftung", I (1842), pp. 40 et seq. Ilenriot, II, pp. 104 et seq. Cicero, "De nat. D.", III, c. 30 (§74) " — hiec qiiotidimuv, sicae, veneni, pecu- latus, testamentorum etiam lege nova qmestiones." '- Ilenriot, II, p. 179. This may be inferred from the frequent mention by the poets of the killing of fathers and the motive of desire to obtain the paternal possessions. However this may have been fiirlhcred l)y the extreme extent of the "patria potestas." The "Lex Pomiieja de parricidiis" subjected "parricidium" to the penalties of the "Lex Cor- nelia de sieariis." L. 1 D. 48, 9. The ancient "poena culei," which was reestablished in the Empire, stood in the way of a sentence in the Later Republic. 29 § 11] liüMAN AND GERMANIC ELEMENTS [Part I, Title I the right to avoid the passing of any sentence by voluntary exile, ''^ and since this in no way prevented him from living in the place of his choice and there enjoying in safety and comfort the fruits of his crime/^ it was, as if, in the case of the common class of criminals, who did not place a high value on residence at Rome and political rights, special care had been taken to secure their immunity from punishment. More than a sentence to any definite punishment, the accused had often to fear the enmity of the multitude, or the political opponent who, arousing that enmity by an accusation, used it for purposes of violence. It was thus, for example, that Clodius brought about the plundering and burning of Cicero's home. Consequently, it often happened that the actual facts causing the conviction were considered, rather than its technical basis. Thus, for example, the complaint against ^'erres, who caused innocent Roman citizens to be executed in the place of captured pirates, so as to make a good profit from the latter's ransom, was instituted, not on the grounds of this revolting murder, but rather on the technical grounds of extortion — the revolting facts of the case serving only, as we would say, " pro- coloranda causa." ^'^ § 11. Gradual Change in the Character of the Criminal Law. — ■ In spite of this mild and aristocratic character of the criminal law which favored the criminal at the expense of public safety, we already find unmistakable evidence of those elements which characterized the sudden reversal in the character of the criminal law which came with the beginning of the Empire. " Exile originally was not a punishment, but rather a means to escape punishment. Cicero, "Pro Csecina ", c. 34 (§ 100). However, voluntary exile could take place in accordance with the expression "Ei justum esse exilium", and therewith interdiction from fire and water and loss of all legal rights in the native country. Livy, XXV, 4 ; XXVI, .3. Cf. as to voluntary exile, Geib, " Geschichte des röm. Criminal processes", pp. 120 et seq., p. 304. In Greece, also, there was originally a voluntary departure of the worst criminals. The individual could sever the tie which united him to the community, and thereupon the rights of the latter in regard to him came to an end. In other ways, in ancient times, the effects of exile were often quite severe. ^* Juvenal, "Sat." I, 1, 48. " — et his damnatus inani judicio — quid enim salvis infamia numis? — exul ab octava ISIarius bibit et fruitur dis iratis — " Cf. also Suetotdus, "Div. Jul.", e. 42: "Pcenas facinorum (.Juhus Csesar) auxit ; et quum locupletes eo facilius scelere se obligarent, quod integris patrimoniis exulabant, parricidas, ut Cicero scribit, bonis omnibus, reliquos dimidia parte multabat." 15 Cicero, "In Verrem" (A. II) V, c. 27 (§ 69). 30 Chapter I] THE ROMAN law [§ 11 In the first place, the Roman citizen, wlio, at home, enjoyed such extensive protection against arbitrary action of the magis- trate, as a soldier in the field was subject, in matters of discipline, to the discretion of the commander or his lieutenant, which was legally without restraint. At such times there could be inflicted upon him the severest penalties of life and limb.^ Until the Sempronian Statutes (031 a.u.), there could be no appeal against the official act of a magistrate " militiae " even by those who were not soldiers.- It is always difficult for a conquest- seeking military system, which is naturally adverse to being gov- erned by laws, to preserve free institutions. In Rome the de facto committal to the emperor of the powers of comman Cutting off of the hand (Val. Max. II. 7-11) ; orucifixion (Livy, XXX, 43). Cf. Du Boys, p. 449. 2 Mnmmscn, " Staatsrecht ", I, pp. 65 ei seq. II, p. 110. ' Cf. Xissen, pp. 140 el seq. Respect for the city l)oin\(hiry did not last long in the Empire. ■• Cf. Dil Boys, pp. 4.5G et seq. 5 Val. Max. VIII, 4, 2. ^ This difference is correctly pointed out in Von Holtzcndorff, "De- portationstrafe", p. 00. 31 § 12] ROMAN AND GERMANIC ELEMENTS [Paut I, TiTLE I Juvenal calls it)." TiKler the all-embracing power of the emperor, political rights and political activity were no longer objects of consideration, and had come to be merely things to be played with or else were completely abandoned. At the most one was merely deprived of the special pleasures of Rome (which to be sure was a real grief for those of a sensitive disposition and those who loved the atmosphere of the capital). In the cases of grave crimes, which were becoming more fre- quent even among the highest classes,^ the emperors increased the penalties.® In this, they were acting in accord with popular sentiment. One can understand the indifference of the people to the shameful acts of murder by tyrants such as Tiberius, Calig- ula, and Nero. For it is difficult for those who stand at a dis- tance to distinguish between guilt and innocence ; and the people had become accustomed to feel that there was nothing extraordi- nary in the commission of crimes by members of the highest class.^** § 12. Change in the Character of Exile as a Punishment. — The first punishment wdiich underw^ent a legal change was that of exile. (The numerous death penalties inflicted by the emper- ors are often difficult to distinguish from plain murder ; they could at least be condoned as the slaying of an enemy of the country, since the emperor might be regarded as the personifica- tion of the " Populus Romanus.") Exile, in the time of Augustus, might be relegation {" relegatio ")/ i.e. either banishment to a certain place or banishment with the prohibition to come within a certain radius.- Exile also, in so 7 "Sat.", I, 1, 47, 48. ^ Murder by poisoning was prevalent, e.g. the manner in which the notorious Lueusta, the helpmate of Nero, was able to openly engage in the business (Suetonius, "Nero," 33). " Cf. note 14, § 10, ante. ^° Women of the upper classes sj^stematically practised abortion so as to retain their attractiveness and beauty (Juvenal, "Sat." VI, 594, .595). Ordinary theft appears to have been not uncommon among the higher classes ("honestiores," when stealing as common thieves in the public baths are called "fures balnearii" in L. 1 D. "de fur. bain.", 47, 17. "Principales ci\dtatis" are mentioned as the originators or par- ticipators in " latroeinium " in L. 27 § 2 D. 48, 19). L. 1 D. (Ulpian) "De effractoribus", 47, 18 speaks of the punishment imposed upon cer- tain "honestiores" who were "expilatores." § 2 of the same speaks of a Roman Knight as "effractor" (under Marcus Aurelius) and L. 10 § 1 D. "Ad leg. Jul. pec", 48, 13 speaks of the robbery of a temple -nith great temerity and cunning by a "juvenis clarissimus." Hadrian provided a special punishment for " splendidiores " for interference with boundaries, L. 2 D. 47, 21. ' Cf. Von HoUzendorff, pp. 28 et seq. ^ No one who was interdicted from fire and water was permitted to 32 Chapter I] THE ROMAN LAW (§ 12 far as the imperial power itself undertook the compulsory trans- portation of the accused, might be deportation (" deportatio "),^ — a term which in the beginning meant merely the fact of the compulsory transportation, but later assumed the technical meaning of a form of relegation for life ^ to some fixed local- ity, and with more serious consequences. These consequences were, at first, fixed at the discretion of the emperor, who sentenced to deportation and relegation political criminals and those who figured as such. Not until later were they more definitely fixed by the jurists. The individual who underwent relegation did not lose his citizenship (" civitas ") or right of making a will or being a beneficiary under a will ("testamenti factio ")• Also, if he was banished only for a certain period,^ he did not have to suffer even a partial loss of his j)roperty. But the individual undergoing deportation ^ lost his citizenship ("civitas") and all rights therewith connected,^ and his prop- erty was confiscated.^ In both punishments the place of banishment ^ was determined by the discretion or despotism of the emperor. Deportation might be made to places where life was quite tolerable; but use was also made of desert islands, where the offender had in prospect a speedy death. ^° There were also those betake himself to the continent nor to any island which was less than öOOOü paces from the mainland (Cos, Rliodes, Sardinia, and Lesbos ex- cepted). Cf. Von Holtzendorff, p. 31, Note 5. * Von Holtzendorff, pp. 40 et seq. * Only imperial favor could grant a "restitution." Sometimes hope of tliis was expressly taken away (" Irrevocabile exilium"; cf. e.g. L. 14 § 3 D. "de sacros. ecclesiis ", 1, 2). Cf. Von Holtzendorff, p._ 28. The practical importance of this addition, which Von Holtzendorff seems to have missed, was that the local governor was instructed not to forward the eon\ict's requests for pardon and the like. Cf. L. un. C "De Xili aggeribus ", I, 9, 38. 5 L. 7 §§ 3 4 D. "De interdietis ", 48, 22. ^ The dishonorable element of the punishment of deportation is ap- parent, since it was contrarj' to the viewpoint of the Republic, that there should l)c no direct personal coercion in punishment. Cf. Von Holtzen- dorff, p. GO. ' He who had been deported, retained the rights of the "Jus gentium/' * They allowed to the condemned only the so-called "Pannicularia ", certain trinkets and articles of clothing \cf. the Rescript of Hadrian in L. G D. "De bonis damnatorem ", 48, 20), his children (except in "lese majeste"), and a portion of the property. For particulars, cf. Von Holtzendorff, pp. 79 et seq. » In Egypt, deportation was to an oasis in the desert: L. 7 § ö " De interdietis et relegatis ", 48, 22. '" The island rock of Gyaros, one of the Cyclades in the ^-Egean Sea, was used for this purpose, as it was lacking in water: Tacilus, "Annals", IV, 30. Cf. also Juvenal, "Sat.", XIII, 24G. 33 § 12] ROMAN AND GERMANIC ELEMENTS [Part T, Titlk I secret orders to kill, to whicli, uiulcr despotic emperors, the ban- ished often fell a victim." Increased Use of Capital Punishment. — In the frequent death jx'iKilficfi (primarily for actual or allejjjed cases of " lese majeste"), the despotism of the emperors '- again asserted itself. In opposi- tion to the old Roman view, which regarded capital punishment merely as the necessary destruction of the offender, and did not regard the pains of death as essential, there began under Tiberius (Suetonius points this out as something remarkable) efforts to prevent those sentenced to death from suicide. ^"^ Soon simple and specially devised forms of capital punishment ^^ were extended to the field of crimes that were not of a political nature. The ancient punishment of " culeus ", for the murder of parents, was reestablished under the early Empire, or its place taken by " damnatio ad bestias." ^^ In other cases of the murder of near relatives, the simple death penalty (decapitation) was used,'^ and later, this was also applied to persons of the lower class,^*^ in the graver cases dealt with by the " Lex Cornelia de sicariis." The peculiar manner in which the Roman criminal law grouped at random heterogeneous cases under one and the same statute, (notably where later by " Senatus consulta " and imperial consti- tutions new cases were brought under rules of criminal law already existing) ^^ necessarily made capital punishment more frequent. The fact that crimes often required a vigorous suppression because " The soldiers entrusted \vith the escort often received this order e.g. under Tiberius and Caligula. Cf. Von HoUzendorff, p. 49. 12 Cf. the fearful description of the reign of terror under Tiberius in Suetonius, "Tib.", 61. 1^ Suetonius, 1. c. "Mori volentibus vis adhibita est\avendi." Later, choice of a special kind of death was a favor granted by the emperor. L. 8 § 1 D. "De poenis", 48, 19. " Crucifixion and burning alive, sentence to gladiatorial combat or to be torn to pieces by wild beasts in the public theatres (methods em- ployed for persons of the lower class as well as slaves). "> L. 9 De. "D lege Pompeja de parricid.", 48, 9. The punishment of "culeus" was used if the sea was near; "alioquin bestiis objicitur se- cundum Di\i Hadriani Constitutionem." " Culeus " was a leathern bag. 1" Casting off of high rocks or drowning in the Tiber were also favorite methods (rf. Sueto7iius, loa. cit.), but were later forbidden (L. 25 D. "De poenis" 48, 19). Strangling in prison was also abolished. Later they sought to regulate better the e.xecution of the death penalty. '^ L. 16 D. "Ad leg. Corn, de sic.", 48, 8 (Modestinus). It'may per- haps be inferred from L. 4 D. eod. that as early as Hadrian, murder by persons of lower rank entailed the death penalty. '* Thus, by a Rescript of Hadrian, castration of a man, or allowing one's self to be castrated, and by a Rescript of Antoninus Pius, circum- cision of one who was not a Jew, were subjected to the penalties of the "Lex Cornelia de sicariis." L. 4 § 2 D. 48, 8. L. 11 D. eod. 34 Chapter I] THE ROMAN LAW [§ 12 of the boldness ^^ with which they were perpetrated has alread\' been mentioned.^" It is possible that the death penalty was com- pulsory in other cases, e.g. in the graver cases of counterfeiting.-^ Corporal Punishment. — More remarkable than the death penalty was corporal punishment^-- which, in the Republic, was never applied to a Roman citizen, and in the Empire was estab- lished only for persons of lower rank (" humiliores "). But, legally, these punishments were justifiable by the universal nature of the military power (" Imperium ") of the emperor. As a matter of fact, they were almost indispensable ^'^ in dealing with the pauper rabble who at that time swarmed to the great cities and especially to Rome. Otherwise, since the prevailing system of punishment by imj)risonment was inadequate, it woukl have been necessary to resort to mutilation as a penalty. Imprisonment. — The Romans also made use of imprisonment as a punishment. But it was not based upon the principle which alone is productive of results — the thought that, by a temporary deprivation of freedom as a punishment, the offender may be influenced to a more sensible use of his freedom when again attained. This idea had, indeed, been expressed by Plato,-^ "Armed " Grassatores " (robbers) were upon a repetition of tlie of- fense punished mth death. Cf. L. 28 § 10 D. 48, 19. Malicious in- cendiarism was frequent, e.g. in Rome, often to make an effective appeal to charity (somewhat as to-day it is done to get fire-insurance money). Cf. Henriot, II, p. 15G. Concerning shameless and fraudulent bankrupt- cies, see Henriot, II, pp. 150 et seq. 2« "Famosos latrones — fiu-ca figcndos, compluribus placuit." L. 28 § 15 D. "De pcpnis," 48, 19. Malicious setting of fires "in civitate" by a "humilior" was subject to the punishment of "bestiis ol)jici." L. 12 § 1 D. "De incendio", 47, 9. According to L. 28 § 12 D. "De poenis" (Callistratus) it was punislied by burning alive. Concerning man-stealers, who made a business of stealing children and selling them into slavery, cf. L. 7 C. "Ad leg. Fabian." 9, 20, (Diocletian) and L. un. C. 9, 18 (Constantine). 2' Counterfeiting of gold money (L. 8 D. "De lege Corn, de falsis", 48, 10, Ulpian). As is well known, counterfeiting was later treated in conjunction with "lese majeste." L. 2 C. " De falsa moneta", 9, 24 (Constantine). 2- This, consisting at the most in whipping with a cane ("fustigatio"') is frequently mentioned. Cf. especially L. 8 §§3-5 D. "De pienis", 48, 19. In addition to \vhipj)ing with a cane, there were, under the later emperors, whipping with birches ("\nrga3"), with lashes and knouts ("flagellum "). Balls of lead were later also woven into the knout ("plumba") (cf. e.g. L. 1 C. "De his qui potentiorum nomine", 2, 1_5) (Arcadius and Honorius) and thorns ("scorpio"). Cf. Inveniizzi, p. 173. Fauly, " Realencyklopiulie," VI, p. 24()(). *ä Concerning corporal punishment as an additional punishment in cases of "Relegatio", s(>nt(Mice to "Opus publicum", and "ad nu'talla", cf. L. 4 § 1 D. "De incendio", 47, 9. ^^ His "Sophronisterion" ("Legg.", IX, 908) is in its fundamental 35 § 12] ROMAN AND GERMANIC ELEMENTS [Part I, Title I who in this respect was in advance of his time. However, gen- erally speaking it remained unknown to the prevailing opinions of ancient times. Ulpian did not regard imprisonment primarily as a means of punishment. Thus in L. 8 § 9 D. " De poenis", 48, 19, he says : " Career ad continendos homines, non puniendos haberi debet." The rescript of the emperor Antoninus in L. 6 C. " De poenis", 9, 47, reads as follows : " Incredibile est quod allegas, liberum hominem, ut vinculis perpetuo contineretur, esse damna- tum." -*' But in the Empire imprisonment sometimes served as a punishment of short duration -' for petty offenses, and also for cases in which, for the sake of the public peace, the temporary absence and safe keeping of the offender -^ was desirable.-^ Hard Labor. — INIoreover, since it was customary to punish slaves by hard labor, and since the lowest class of freemen were in reality little more respected than were slaves, by the all-power- ful imperial officials, the idea easily arose of making use of the toil of convicted persons in the great works which were being under- taken by the State. This idea was perhaps furthered by an ac- quaintance with the custom of States annexed to Rome."° Thus even Pliny the Younger ^^ speaks of the employment of convicts in public work (" opus publicum "), such as cleaning sewers, mend- ing the highways, and working in the public baths. A severer type of this kind of punishment was a sentence " ad metalla " — labor in the mines — and "in opus metalu." The convicts in each of these instances wore chains, and as " servi poense " lost their freedom. For this reason the punishment was always for life.'^- Heavier chains were worn by those sentenced " ad metalla " than by those sentenced " in opus metalli." "' These ideal the theory of reformation of the 1800s. Cf. Thonissen, "Droit penal de la republique Athenienne", pp. 439 et seq. ^^ However the passage speaks of the use by the governors of chains in the prisons, of which the jurists approved. *' As appears at the conclusion of the passage, this was not unheard of in the case of slaves. Slaves and persons of the lower class were often actually (though perhaps not legally) treated alike. Cf. also: Invernizzir pp. 173 et seq., and Henriot, II, pp." 361 et seq. -ä Imprisonment as a means of prevention was originally limited by statute to the term of office of the magistrate who inflicted it. ' Cf. Momm- seti, "Rom. Staatr.", II, pp. 149, 529, 530. 2" Cf. L. 8 § 9 D. "De poenis ", 48, 19. As to the use of imprisonment in Athens, see Thonissen, "Le droit penal." p. 114. ^° We also find among the Egyptians sentences to labor in the mines. Thonissen, "Etudes sur I'histoire du droit criminel des peuples anciens" (Paris, 1869), 1, pp. 157 et seq. 5' Ep. ad Traj. X, 41. 32 Cf. Rescript of Hadrian in L. 28 § 6 D. "De poenis", 48, 19. 33 L. 8 § 6 D. "De poenis ", 48, 19. 36 Chapter I] THE ROMAN LAW [§13 punishments were popularly regarded as sentences to a slow and painful death.^^ The treatment of these prisoners must have been very severe ; ^^ according to the rescript of Hadrian, sentence to gladiatorial combat (" ad ludum "), where, if the chance so turned, a man might become free, was regarded as a lighter pen- alty .'^^ ^lention is also made of another kind of penal labor ; younger persons were used e.g. in the hunting sports in the circus or as dancers, especially as sword dancers in the public theatres.^^ Often some temporary need was served ; thus, Constantine, in the year a.d. 319, ordered the governor of Sardinia to cause to be sent to Rome those convicted for minor offenses ; there they were employed in the grist mills. The " constitutio " which originated this " damnatio in pistrinam urbis Romae " was often renewed;'^^ Other Methods of Punishment. — The other principal methods of punishment of the time consisted of denial of the right to carry on a trade,^^ declaration of incapacity for holding public office "'^ (or perhaps only some public offices), degradation from a higher rank,"*^ and money fines ; these, in the Republic might be imposed e.g. on the complaint " de residuis " (failure to account for, and especially misapplication of public funds), and also under some circumstances in cases of peculation. '- § 13. Infamy and Confiscation of Property. — Infamy (" in- famia ") and confiscation of property were in the nature of supple- mentary punishments. The former, even in the Empire, continued to be of considerable significance. The " infamis " could not (or to speak more accurately, was not entitled to) be appointed 3* Cf. Henriot, II, p. 357. 3' Women, who were considered unsuited for this severe labor, were sentenced in like cases to " ministerium metallicorum", i.e. to servo those sentenced to work in the mines. Such a sentence could also be hmited in regard to its duration. L. 8 § 8 D. "De poenis." If anyone was ill or weak and had undergone ten years of his sentence, it was provided that he could be turned over to his relatives for care. L. 22 D. "Do poenis." 30 " Collatio legum Mosaic." XI, 7 §§ 3, 4 (Ulpian). 3^ L. 8 § 11 D. "De pcxjnis." The condemned were also in these cases "Servi Poemc." 38 L. 3, 5, 6 C. Theodos. "De poenis ", 9, 40. 39 L. 8 pr. ; L. 9 § 10 ; L. 43 pr. D. " De poenis ", 48, 19. ^o L. 5 § 2 D. "De extraord. cogn.", 50, 13. L. 7 §§ 21, 22 D. "Do interdictis et releg.", 48, 22. There is also mention of a temporary su.s- pension of such rights [cf. L. 7 §20 D. "De interd. et releg."). This doubtless was the (sase, since even according to our modern conception such punishments are regarded as disciplinary. ^' Concerning loss of rank of Dccurian, cf. L. 43 § 1 D. "De pamis." In other respects distinctions in rank were very important in criminal law and procedure. *2 Cf. Walter, II, § 813. 37 § 13] ROMAN AND GERMANIC ELEMENTS [Part I, TiTLE I to a public office.^ Confiscation of property, either of all property, as incidental to every death sentence,- or of a portion only, as often incidental '' to e.g. relegation for life, had, at Rome, under despotic emperors attained to a considerable importance. It differed however, from the custom of confiscating property at Athens ' under the power of the people dominated by demagogues. In addition to the desire for personal revenge and the gratification of tyrannical whims, there was also, under bad emperors, the addi- tional temptation to enrich the imperial treasury (" fiscus "), if the prosecution of a man of means was in question. Moreover, not to mention the numerous profits accruing to self-seeking officials from the sale of confiscated property, the bounties ^ awarded for incriminating information (" denunciatio ") pro- duced the well-known pest of the spy- system. Relations of con- fidence and trust, made sacred by custom and religion, were dis- solved by the influence of this poison. The severity with which it was found necessary to prosecute the making of unfounded informations and complaints, and the extortions thereby made possible, were prejudicial to legal procedure. The higher the stakes for which the accuser or informer played, the less scrupulous would be his choice of the means to carry the case to a successful conclusion, and the more prone would he be to attempt to bribe witnesses and judges.® The fact that the profession of informer soon came to be regarded as actually infamous {i.e. causing " infamia "),^ and that accusations ^ of slaves and freedmen against patrons were not tolerated,^ together with the fact that the 1 Thus Savigny, "System des röm. R.", II, pp. 201, 202 in relation to L. 2 C. "De dign." 12, 1. Cf. however, L. 2 D. "De off. assessorum", 1, 22. It is doubtful if infamy "ipso jure" entailed the loss of an ofiiee already acquired. This was not the case in the Empire, since the emperor and his legal representatives could deprive one of an office as a matter of discipline. The additional effect of infamy relative to appearance before a court need not here be considered. 2 C/. Geib, I, p. 115. L. 8 §§ 1-4 D. "Qui testamenta", 28, 1. 3 Cf. e.g. Paulus, "Sententiae Receptae", II, 26, §14; V, 25, § 8. '' Cf. Thonissen, "Droit penal", p. 123. If the State treasury was empty or in need, prosecutions were instituted. * Cf. e.g. L. 1, "De his quaB ut indignis", 34, 9. ^ It would also happen that the accused would bribe the accuser. As to such a bribery see L. 29 pr. D. "De jure fisci", 49, 14. ' L. 1 D. 34, 9; L. 2 pr. ; L. 44 D. "De jure fisci", 49, 14. An ac- cusation which was not made for the sake of gain was not a cause of "infamia." * Concerning such accusers ("delatores") cf. especially Platner, pp. 170 et seq. ; Rein, p. 814 ; Rudorff, II, p. 460. ^ Such accusers became liable to punishment under a "Constitutio'* of Severus. L. 2 § 6 D. "De jure fisci." Some of the reasons for re- 38 Chapter I] THE ROMAN LAW [§14 good emperors, especially Titus, Trajan, and Hadrian, proceeded with the greatest severity against the " humani generis inimici ", the " execranda delatorum pernicies ", tended to the suppression of the evil. Nevertheless, in the case of the accusations most dangerous in these respects, viz. accusations of the crime of " lese majeste ", ^'^ the regard for the sacred person of the " princeps " and emperor easily outweighed all other considerations and pre- vented the evil from being plucked up by the root. § 14. The Range of Criminal Law. — Concerning the range of the acts for whicli punishment was inflicted, there can, however, be no question but that prior to the end of the classical jurists' period (except in the case of the crime of " lese majeste " and the persecution of Christians) the criminal law itself did not go beyond the limits of real necessity,"^ even though these limits w'ere often transgressed by imperial despotism/) Law tended to develop more along the line of the protection of private rights and morality. *^The " Lex Julia de adulteriis " in the time of Augustus (a.u. 736) was in these respects an interesting innovation. Its purpose was, by means of severe penalties, to check the increasing preva- lence of immorality, — adultery (of which the husband as sucli could not be guilty), illicit relations of men with married women and with their own sex, pandering, and marriage and concul)inage among near relations. This statute was peculiar, in that the general public was made the guardian of the morality and honor of the family. As opposed to the police power of the State, in- jury to individual rights and the interest of the family stepped into the background. While the right of the husband and father of the married woman to bring this complaint was favored, it was not exclusive.^ After a certain lapse of time, a complaint could jecting such accusations rested partly upon the grounds that the persons accused, if members of a high rank, should not be brought to a trial, and partly upon the grounds that the accusers had shown themselves especially dangerous, e.g. accusations by one condemned "ad metalla", "ne desperati ad delationem facile possint sine causa confugere." L. 18 § 3 D. "De jure fisci." 1" In these cases, a slave was permitted to accuse his master. Cf. L. 6; L. 8 § 6 C. "De delat.", 10, 11. ' In this respect, there may be considered the weakening of the family- tie, and the granting of Roman citizenship to a poverty-stricken multi- tude. The criminal power of the State was obliged to take the place of the disciplinary power of the head of the household and the "nota cen- soria" which being no longer of importance soon died out in the Empire. However the power of the head of the household was yet often e.xercised in respect to married women in the early Empire. 2 L. 4 D. "De adulteriis", 48, 5. 39 § 14] ROMAN AND GERMANIC ELEMENTS [Pakt I, TiTLE I be brou^lit h\' uii\' tliird party.'' Moreover, the husband was punishable as a panck'rcr (" lenocinium ") if he failed to bring a charge against his wife if apprehended " in flagrante." It was only in a depraved state of society that provisions such as these, prejudicial to the peace of the family and conducive to extortions,'* could be considered advantageous. The possibility of punish- ment for " lenocinium " (as appears from L. 8 and 9, I). " De adulteriis ") goes far beyond the limits within which, at the pres- ent time, the interference of the criminal law or of the police is deemed justifiable. The later extensions by imperial constitutions, senatusconsulta, and juflicial practice,^ of the " Leges Julise de vi " are more directly intended for the protection of private rights.^ The same is true of the punishment for swindling (" stellionatus ").'' It is also important to notice that by this time theft (" furtum ") in many cases was subjected to a public punishment, unconditionally, in the interest of public security.^ In all cases in which there was a theft of a thing itself (" furtum rei "), and not merely a theft of its use (" furtum usus ") or its possession (" furtum posses- sionis "), public punishment could ensue upon motion of the party injured ; ^ and this was generally the practice. " INIeminisse oportebat, nunc furti plerumque criminaliter agi." This was the only means by which theft could be held in check, " quia visum est 3 Nevertheless it is conceivable that there frequently were no accusers. Suetonius, "Tiberius", 35. ^ Concerning abuse of the right of accusation, cf. L. 18 (17) a. E.D. "De adulteriis", 48, 5. ' Cf. e.g. L. 1 § 2 D. "De vi privata", 48, 7; L. 6 D. eod. ; L. 5 § 2; L. 6 D. "De vi publica", 48, 6 ; L. 152 D. "De R. J.", 50, 17: "Hoc jure utimur, ut quicquid omnino per \'im fit aut in vis publieae aut in vis privatte crimen invidat." 8 The above-mentioned pro\ision against castration was rather in th-e natm-e of legislation for purposes of morality. Concerning the punish- ment of abortion by a married woman, cf. L. 4 D. "De extraord. erimin.", 47, 11. ^ Peculiar cases of fraud were : the so-called " Venditio fumi", swindling through a pretense to be able to procure for the defrauded party a position of lionor {cf. Rein, p. 723) ; also the case where a free man fraudulently allowed himself to be sold as a slave. (L. 7 § 1 ; L. 14, IS D. "De lib. causa", 40, 12; L. 5 § 1 D. "De statu horn.", 1, 5. In this latter case the party who permitted himself to be sold lost his freedom as a punish- ment, if he was over twenty-five years of age. * Thus "furtum" of "abactores", "directarii", "effractores" and " saccularii " ; also "fures nocturni", "fures balnearii." Receipt of stolen goods was punished as a special olTense ; cf. Tit. D. "De receptat.", 47, 16. ^ The injured party could choose between a ci\il action and punish- ment of the theft "extra ordinem" : L. 93 D. "De furtis" ; L. 3 § 1 D. "De off. prtef. \-iguum", 1, 15; L. 15 D. 12, 4. 40 Chapter I] THE ROMAN LAW [§ 15 temeritatem agentium etiani extraonlinaria coj^nitione coercen- (1am. " ^° The general tendency of legal development was as follows : Torts and wrongs which merely rendered their author liable to an accusation in a popular assembly tended to become crimes, and, as such, to be subject to criminal punishments, or, at any rate, might be treated as crimes at the discretion of the magistrate or of the injured party. ^^ This tendency was in part based upon the natural order of development of criminal law. In Rome it was also furthered by the sovereign power of the offi- cials and by the prevalence of a poverty-stricken proletariat. Attempt at a crime was punished by some special method of I)rocedure or under the head of some other crime, rather than by \irtue of a general statutory provision or in pursuance of some definitely expressed principle. Accessories to a crime were pun- ished in about the same extent as at the present time. Bearing these two facts in mind, it can perhaps be said that, at the time of the classical jurists, the range of criminal law covered very nearly (but not exactly) ^^ the field of wrongs punishable criminally under the early German common law. Little by little, negligence (" culpa ") (regard for which was originally foreign to the public penal law) also became liable to punishment, particularly in cases of homicide and starting of fires.^^ § 15. The Crime of "Lese Majeste." — The crime of "lese majeste " proved very important in the practical administration of criminal law. The interests of the State are naturally suscep- tible to injuries in many ways. These injuries may have a very considerable influence upon the fate of the State ; for the State is not a thing definite and well defined, but to a certain extent may be conceived as existing at the same moment everywhere and nowhere. Therefore laws in regard to high treason and State treason easily assume an indefinite character. There is in such " L. 93 D. "Do furtis" (Ulpian). "Concerning insult ("injuri:r"), cf. L. ult. D. "De injur.", 47, 10 (Ilermogenian) ; also e.g. L. 3 § 7 D. "De sepulcro viol." 47. 12; L. 1 pr. § 1 L. 5 D. "De e.xtraord. erim." 47, 11 ; L. 3.5 D. "De injuriis." '^ Some differences are : e.g. according to the " Lex Cornelia de sicariis", many acts are punishable which are not punishable even as preparatory acts ; violations of the person were punishable according to Roman law only when they were "injuria?" and only when done with malice ("do- lose"); offenses against morality were not identical with those of the present time. >' L. 3 § 1 D. 1, 15; L. 4 § 1 D. "Ad leg. Corn, de sic." 48, 8; L. 6 §7D. "De off. prsES." 1, 18. 41 § 15] ROMAN AND GERMANIC ELEMENTS [Part I, TlTLE I cases much that is less capable of beinf;^ expressed by words than determined by the exercise of rational discretion. In a State in which the ruler is absolute, there is always a tendency to identify the interests of the rulers with the interest of the State. It be- comes easy to ascribe to any act, which in fact is contran,' to the real or presumed interests of the ruler,^ the character of harraful- ness to the State.^ When we consider the absolute power of the em{>eror ; his constant use of it to interfere in the administration of law ; more important still, the time-serving attitude which, in every absolute government, grows with overwhelming vigor ; the temptation held out by the power of confiscation for treason ; and the procedure wdiich, in the interest of the State against these presumed enemies, permits the important guarantees affording pro- tection to the accused to be set aside,^ — when we consider these things, we need no further explanation of those murders com- mitted by Tiberius, Caligula, Nero, and Domitian and concealed under accusations of " lese majeste." Later, in the compilations of Justinian, we find that these abuses are no longer given legal recognition.^ But the utterances of the jurists, as well as the imperial rescripts (directed as they were against a body of citizens presumably timid and peace-loving), reveal what must have been the practice of those despots ^ and of their over-zealous officials.^ 1 Thus "lese majeste" came to be "omnium actionum complementum " {Tacitus, "Annals", III, 38), the crime of the innocent "crimen illorum qui crimine vacarent." {Pliny, "Paneg.", 42.) 2 Under Tiberius the slander of the emperor began to be treated as "lese majeste." Previously Augustus, under the term "Crimen majestatis", had caused to be prosecuted "libeUi famosi" which made accusations against eminent persons: Tacitus, "Annals", I, 72. Cf. Paulus, "Sententiae Receptse", V, 29, § 1. ^ Persons were permitted to bring the charge, whose accusation, bearing no weight, in other cases, had ceased to be given consideration. No attention was paid to relations of trust, etc. (L. 7 pr. § 2, D. "Ad leg. Jul. maj." 48, 4). They tortured all or any of the witnesses whenever thej^ thought any purpose would be served thereby (L. 10, § 1, D. "De qusest." 48, 18; Paulus, "Sententiae Receptee", V, 29, 2). ■* Thus Alarcian feels constrained to observe that the repair or the unintentional injury of the statues of the emperor did not constitute "lese majeste." The law had once punished as "lese majeste" even the removal of one's clothes or the chastisement of one's slave in the vicinity of a statue of the Emperor : Reitt, pp. 533, 544. * Cf. L. 2, C. "Ad leg. Jul. maj." 9, 8. The indi\adual presenting the matter for decision had sworn by the spirit of the emperor that he would deal harshly A\äth his own slave, but had not kept his oath. Cf. concerning the punishment of false oaths in which an appeal was made to the spirit of the emperor. Rein, pp. 533, 534. ^ Modestinus in L. 7 § 3 D. 48, 4, gives a warning to over-zealoua officials. 42 Chapter I] THE ROMAN LAW [§ 16 § IG. Persecution of the Christians. — The persecution of the Christians bore a certain relation to the punishment of the crime of " lese majeste." This persecution can be explained as follows. A State which makes religion an instrument to accomplish its own ends, as Rome had done from the beginning, can not remain indifferent to the intrusion of a new religion. However, it does- not persecute a new cult merely as such, as is done in States domi- nated by a priestcraft. But it persecutes the new cult as soon as its own interest seems to demand. Thus the Roman State had always exercised its right to proceed against any cult which seemed especially destructive of morality or generally dangerous.^ An example is furnished by the decree of the Senate against the fanatical cult of the Bacchantes (a.u.c. 547). There is recorded a large number of laws against the cult of Isis and Serapis and the suppression of the cult fostered in Gaul by the Druids. As appears from the general sense of the decree against the Bacchantes, it was not only those cults which manifested themselves publicly that were persecuted ; Cicero says, expressing the spirit of the Roman State : " Separatim nemo habessit deos ; neve novos, sive advenas, nisi publice adscitos, privatim colunto." Every new cult required, as it were, a definite license from the State. Now the Christians, prima facie, provoked the suspicion and hatred of other people who judged by what they saw. They sepa- rated themselves from their fellow citizens ; they refused to attend the public festivals ; they offered no sacrifices to the local deities, and refused divine homage to the statues of the emperors. Thus they exposed themselves to blame for any public calamity ; for the people were accustomed to attribute such calamity to the wrath of the neglected local deities. It was also alleged that the Christians, like the adherents and participants in other objec- tionable cults and mysteries, in their secret celebrations revelled in blood and sensuality. Thus they came to be regarded as guilty of " lese majeste ", and, finally, even as " publici hostes." " The withdrawal of the Christians from all i)articipati()n in the affairs of the heathen State, their prophecies concerning the judg- ment of God which should overwhelm all heathendom and the wickedness of the age, made them hated by many leaders in politi- ' Cf. Plainer, p. 46 et seq. 2 Cf. especially Ebert, "Tertullian's Verhältniss zu Minutius Felix" in the " Historish-philolog. Classe der Königl. sächs. Gesellschaft der Wissonschaften ", Vol. V, N. .5, pp. 19 et seq. (pp. 337 et seq.) ; Hausratk, " Neutestamenlliche Zeitgeseliichte", III (1874), pp. 297 et seq. 43 § 10) ROMAN AND GERMANIC ELEMENTS [Pakt 1, Title I (•ill affairs. These leaders, althoiifi;h tliey iniffht have found that Christianity had much in common with their own ideals of moral- ity, were unable to contemplate a State other than the heathen State as it then existed. To such men, since they placed their reliance in the old virtues of the Republic and the maxims of phi- losophy, a foreign sect flocking into Rome, behaving in an ex- traordinary manner, and yet reaching such a position as to win adherents even in court circles, necessarily appeared dangerous. So, from the very first, they from time to time punished the Chris- tians as " rei superstitionis externse." Thus Suetonius briefly and without a trace of pity, says : " iVfflicti suppliciis Christiani genus hominum superstitionis novae et maleficse." Tacitus also, while telling of the Christians burnt at Xero's command as living torches in his garden, was of the opinion that they deserved the severest death penalties. He found fault merely with the fact that their death appeared to be inflicted at the caprice of an individual,^ rather than as a public punishment inflicted for the well-being of the State. When Pliny the Younger, who was unable to attribute any special crimes to the Christians but nevertheless considered them dangerous, wrote to Trajan for his opinion, the emperor, desiring no doubt to act in accord with public sentiment, replied in those well-known and significant words : " Conquirendi non sunt; si deferantur et arguantur, puniendi sunt." Their prose- cution was to depend upon whether or not anyone pressed a charge against them. The persecution of Christians was thereby made legal, w^henever demanded by public sentiment. This also ex- plains the peculiar fact that, at times, protection was afforded the Christians and their doctrines were allowed to spread, while, at other times, when the interest of the State seemed to demand it, they were suddenly proceeded against with frightful severity. Undoubtedly a doctrine such as that of the Christians could not spread without arousing hate and persecution. But the fact that this persecution took, at times, so systematic a form and emanated from the State, was only possible because, first, of inherent faults from which the Roman criminal law had suffered from the beginning, and because, secondly, of its political char- acter, which, without regard to the injury of specific rights, derived its conception of offenses from what it conceived to be the real or ^ "Quamquam ad versus sontes et novissima exempla meritos miseratio oriebatur, tanquam non utilitate publica, sed in saevitiam unius absume- rentur": Tacitus, "Annals", XV, 44. 44 Chapter I] THE ROMAN LAW [§ 18 presumed interests of the State. Defects in the fundamental conception of law, which to the laity are difläcult of comprehension, have, in stormy periods, exercised an influence upon the fate of a people. § 17. Sorcery and Soothsasring. — The crime of sorcery and soothsaying ^ is also closely related to the crime of belonging to a forbidden cult. Belief in the power of special incantations to- gether with the sacrifice of victims was an ancient one with the Romans. During the Republic, public calamities were attributed to such causes. An extraordinary number of laws were enacted against them, e.g. in the case of the pestilence occurring in the city (320 A.U.C.), and during the Second Punic War (541 a.u.c). During the Empire there was an invasion of superstitions from the Orient. Mention is often made of the " Chaldsei", " Arioli ", " Astrologi ", " Mathematici ", and " Magi." There was a con- stant belief in the power of witchcraft. It was suspected that Germanicus lost his life from this cause.^ There is also frequent mention of love potions and magic formulas. Sorcery and the mixing of poisons'^ were frequently associated."* INIere soothsay- ing was not severely punished. But the utterance of incantations concerning the life of the emperor and the consultation of a sooth- sayer by slaves " de salute domini " were punished with death. Not to mention the frauds which were frequently perpetrated through the medium of magic,^ it was regarded as dangerous in itself, and prophecies concerning the approaching death of the emperor might cause public tumult. But, since even the emperors from t'me to time concerned themselves with magic,^ and among the mass of the people these superstitions gradually supplanted the old State religion, it was impossible to actually curb the evil. § IS. General Circumstances Affecting Imperial Criminal Law; (1) Class Privilege. — In order to gain a proper conception of the practical operation of the criminal law of this imperial period, the following circumstances must be borne in mind. Against the 1 Cf. Rein, pp. 901 et seq. ; Plainer, pp. 234 et seq. ^ Tacitus, "Annals", II, 69. ^ Patilus, "Sententia; Reeeptae", V, 23, 15; L. 13, D. "Ad leg. Corn, de sic", 48, 8. Sorcery for good purposes was permitted. Charms for good purposes were much used. * Paidits, "Sententiae Reeeptae", V, 23, 1.5. ^ Swindling done by jugglers who went about with snakes is perhaps referred to in L. 11, D. "De extraord. crim." 47, 11. « Cf. Plainer, p. 237 ; Rein, p. 905. 45 § 18] ROMAN AND GERMANIC ELEMENTS [Part I, Title I powerful infliuMK'os of the commerce of the world pouring into Rome, the large property interests owned by freedmen and persons occu- pied in ignoble callings, and the absolute power of the emperor, the old Roman freedom, once the pride of the citizen, could no longer prevail. But the emperors felt the necessity either of pre- serving established legal privileges or of creating new ones in their stead. Since, in reality, it was only the Senate who retained a semblance of political rights, these privileges must be made to reveal themselves in the criminal law.^ They cost the emperor nothing, and they also enabled him to interfere constantly in the administration of the law by the governors of the provinces, and to remind them and their underlings of their subjection to the superior power of their emperor.- Thus, in the Digest, under the title " De pcenis", the first place is given to a passage from Ul- pian, in which, before everything else, attention is called to distinctions of rank in the determination of punishments. For the higher classes,^ relegation and deportation were the regular penalties. The former applied to substantially the same classes of cases punishable under the old " Leges judiciorum publicorum " ; the latter was for cases covered by the " extra ordinär ia coercitio." But a desire to aggravate or mitigate the penalty would cause individual cases to be shifted from one group to another.^ The punishments for the lower classes (" humiliores ") were the death penalty, condemnation " ad metalla " or to " opus publicum ", or corporal punishment.^ However, in the case of crimes against 1 This tendency did not cease completely until the time of Marcus Aurelius and Alexander Severus. Under despotic emperors such as Nero, Caligula, and Domitian, capital punishment of prominent men was very frequent, and the most distinguished men of the State might be seen laboring in penal servitude on building streets; Von Holtzendorff, p. 110. 2 This is very apparent in the punishment of deportation, which was employed against those of higher rank. This could take place only by virtue of an imperial confirmation of the decree of the governor of the province. The "prsefectus urbi", who was in Rome and passed judg- ment as it were, under the eves of the emperor, had authoritv to sentence to deportation: L. 2, §§ 1, 2, "De poenis", 48, 19. \ Senators, Knights, Decurions. Apparently other persons could at judicial discretion be treated as "honestiores." Concerning the special privileges of veterans and their children, cf. L. 3, D. "De veteranis", 49, 18; cf. especially Vo7i Holtzendorff, p. 111. * According to Hadi-ian's regulation, apart from cases of "lese majeste", there could only be capital punishment in cases of murder of parents: L. 15, D. "De poenis." '" L. 28, §§ 2, 9, D. "De pcenis." It is natural that many errors were committed in making such distinctions. According to L. 10, § 2, D. "De poenis", corporal punishment unjustly undergone precluded the statutory "Infamia", which would otherwise ensue. 46 Chapter I] THE ROMAN LAW [§ 18 the emperor, all these distinctions Vcanished. In the graver eases of " lese majeste ", individuals of any rank were liable to the death penalty ; ^ generally, deportation was deemed a sufficient punish- ment for those of the highest rank ; but upon those of a lower rank (" humiliores "), the death penalty in the terrible form of " bestiis objici " was inflicted. (2) Administration of Justice by State Officials. — Justice administered by officials, which, as early as the first century after Christ had completely crowded out and replaced the old adjudi- cations of the people, reminds one in many of its external features of criminal justice as it is to-day administered in the larger cities. "We find, as shown under the title in the Digest, " De custodia et exhibitione reorum ", an extensive and precise system of impris- onment, with rules for the transportation of prisoners,' a register L/^ of previous convictions,^ a record of prisons, and regulations to secure the humane treatment of prisoners held pending trial. The accusatory principle of procedure, although not directly abolished, tended more and more to become less important and to lose its real significance.^ It was the duty of the numerous police officials to investigate crimes, and in their official capacity to in- stitute criminal proceedings ; the officers acting as magistrates were, as a matter of fact, the absolute masters of the procedure. This manner of administering justice under the absolute power of officials, while in many respects preferable to the old adjudica- tions of the sworn jurors, which were liable to be influenced by corruption, furthered informal and arbitrary methods,^" and also gave rise to a variety of abuses on the part of the superior officials and their subordinates.^^ ^ Paulus, "Sententia; Reeeptae", V, 29, § 1. ' L. 2, C. "De exhibendis et transmit tendis reis", 9, 3 ; L. .5, C. "De custodia reorum", 9, 4. s L. 11. § 1, D. 48, :i; L. 7, D. eod. ^ [On this subject of procedure, see Mitlcrniaicrs chapter on Roman procedure, in Esmein's "History of Continental (^riminal Procedure" (1913, transl. Simpson, in the present Series). — Ed.] '" As shown, e.g. in L. 18 §§ 9, 10 D. "De qua'stiouibus", 48. 18. The "Praeses provincia?" would cause the prisoners to l)e brought before liim in large numbers from the prisons, and judgment could be passed im- mediat(>ly upon the event. The passages proviile that the "Praises" should give notice of the days of visitation and lu'aring, so that the ac- cused could prepare their defensi' and iu)t be compU'tely taken unaware in the matter of proof. Cf. also L. 12 D. "De publ. jud.", 48, 1. " Against the scandalous abuses of the subordinate officials and their attempts at extortion L. 1 C. 9, 4 (a.d. 320) was directed. Concerning wrongful judgments and corrupted \vitnesses, cf. L. 18 § G D. "De adul- teriis", 48, 5. 47 § IS] ROMAN AND GERMANIC ELEMENTS [Pakt I, TiTLK 1 Continued Disregard for the Criminal. — In its cliaii^L'(l form, the Roman criminal law remained trne to its old attitude of dis- regard for the party who was sentenced. As in ancient Greece,'- so in Home it was not considered worth the trouble to j^ive empha- sis to a proper relation between the punishment and the crime, or to gi\'e much thought to such matters. 'yThere is here, as it were, a trace of the old manner of regarding the criminal as an enemy of the State, against whom one may resort to any expedient. There is not the faintest trace of the idea that after all the com- munity must share the blame for the crime. Yet the Itoman criminal law of the classical period is far removed from that attitude of grim self-satisfaction which is encountered in the deliberate aggravation of the offender's suffering, which later prevailed, under the influence of theological ideas, from the latter part of the Middle Ages until the 1700 s.^"'' But identical severe penalties were applied to crimes of a very dift'erent nature ; and if the time or the circumstances made it necessary, the most terrible sufferings of the condemned seemed a matter of small moment. Thus we find the same punishment of deportation inflicted for an act of violence wdiereby no injury was wrought, for the seduction of a virgin,'^ and also for a murder perpetrated by use of poison.^"' Anyone, who, without authority, e.g. to satisfy his curiosity, opened or read the testament of another person dur- ing his lifetime was sentenced to deportation,^^ probably " ad metalla." With disregard for the natural instinct of liberty, they did not hesitate to penalize with atrocious additional punish- ments attempts of prisoners to escape. ^^ If a crime was being frequently committed in a certain locality, the punishment could 12 Q- Thonissen's comments on Plato's philosophy of criminal law : "Le droit penal de la republique Athenienne ", pp. 445 et seq. Con- cerning the expressions of the Greek orators, see Thonissen, p. 73. ^■' Cf. e.g. 8, §3, D. "De poenis", 48, 19: "Nee ea quidem poena damnari quem oportet, ut verberibus neeetur vel virgis interimatur nee tormentis." Moreover, the barbarous methods of capital punishment which were used, insofar as they were not prescribed by the arbitrary despotism of indi\adual emperors (see Inrernizzi, p. 177, and e.g. Sue- tonius, as to such cases of atrocious punishment), were not founded so much upon an attempt to give pain to the criminal as upon religious and other motives, e.g. upon the ideal of a certain "talio" or retribution, — e.g. the punishment of being burnt alive for arson. '•• According to L. 1 § 2 D. "De extraord. crim." 47, 11. there could under some circumstances be capital punishment in such cases, even of the "comites" of the chief offender. 16 Cf. Von Holtzendorff, p. 130. 16 L. 38 § 7 D. "De poenis", 48, 19. " L. 8 § 7 D. " De poenis ", 48, 19. 48 Chapter 1] THE ROMAN LAW [§ 18 be increased,'^ according to Saturninus, to make a public example. As appears from the persecution of the Christians and especially from the famous rescript of Trajan above mentioned, when the interests of the State were in question, there was no very exact discrimination between guilt and imiocence. Thus a decree of the Senate passed in the time of Nero ])ro\ided that if anyone suffered a \ioIent death at the hands of his own slaves, even those slaves should be executed who were freed by his testament ^^ and who were kept at his home ; and Tacitus,-" while he makes mention of this, sees herein nothing out of the ordinar\-. " Fac- tum est senatus consultum ultioni juxta et securitati." Condem- nation to death in the gladiatorial sports or by exposure to wild beasts in the public theatres, in which case the prisoner was often long in anguish under the prospect of this terrible death,-' are other exam})l('s of this sjmie attitude of indifference. Reversion to More Primitive Conditions. — A system of law, l)ossessed of these characteristics, was always in danger of revert- ing to its condition in much earlier periods. The abnormal devel- opment, which we have noticed {e.g. in the crime of " lese majeste "), the prosecution of crimes after the death of their author, the " damnatio memoriae ", and the punishment inflicted upon even the descendants of those guilty of " lese majeste ", — all these are not to be attributed solely to the despotism of 18 L. 8 § 10 D. "De poenis", 48, 19. '" The large numbers of slaves in Rome must often have appeared dangerous enough ; that the slaves, in such eases as the above^ should all be put to death was an old custom: Tacitus, "Annals", XIV, 42. Cf. tit. D. "De SCo. Silaniano et Claudiano" 29, 5. Those slaves only were spared who could prove that they hastened to the assistance of their master. Even Hadrian, who was usually mild of disposition, gave a rescrii>t to the effect that a female slave, who (perhaps from as- tonishment or fear) had not called for help, should be put to death : L. 1, § 28, D. 29, 5. 2» Annals, XII 1, .T2. -^ Colattio Leg. Mosaic. XI. c. 7 § 4 : "Ad gladium damnati' confestim consumuntur vel certe intra annun debent consumi." There is no doubt that the provincial magistrates often sought to add lustre to the theatre bv bringing large numbers of condemned persons into coml)at with lions, tigers, etc." It was against this abuse tliat the prohibition cotitained in L. :U, § 1, D. "De pcenis", 48, 19, was directed; in accordance with which, criminals were not to b(^ transported from ouv jjrovince to another. Indeed, it is stated in the same passage, concerning convicts who have distinguished themselves in such combats and have for the time being escaped with their lives, that word be sent to the Emperor, if there can be this delav, that these convicts are worthy to be presented before the people of tlie Citv of Rome! Sometimes the spectators desired the re- lease of the combatants l)ecause of their bravery and recklessness of life. But the provincial nuigistrates were not to comply with such desires. 49 § 19] ROMAN AND GERMANIC ELEMENTS [Pakt I, Titli: I the emperors. As has been shown })y Mommsen, there were revived during the Empire many of the fundamentals of the old Roman constitutional law ; and the same result could well take place in the field of criminal law. § 19. Influence of the Jurists. — This method of administration of justice through State officials made possible another and an entirely distinct influence, exercised by judicial practice. Even the imperial officers ought not in theory to allow themselves to pass their own judgment either upon the deed or upon the per- sonal merit of the accused. Neither were they to frame the pen- alties according to the exigencies of general public policy.^ In theory they appeared only as administrators of the statutory law, or of the will of the emperor or of the Senate, which had the same force and effect as a statute.^ Nevertheless, viewed from another angle, the jurisdiction of these officials did go further. They were not (as were the " qusestiones " of the old popular courts) lim- ited in such manner that they could only take cognizance of one certain offense and decide the guilt or innocence of its alleged author.^ They investigated, at least as far as could be done by official proceedings, the facts of the case in every conceivable juristic aspect, and their authority in the fixing of penalties was very extensive.'* Penalties were sometimes left entirely to their discretion. In some cases they could, of their own authority, even impose the death penalty ; and Ulpian in the Digest, under the title "De poenis ", makes the general statement: " Hodie licet ei qui extra ordinem de crimine cognoscit quam vult senten- ^ "Semper graves et sapientes judices in rebus jiidicandis, quid utilitas civitatis, quid communis salus, quid reipublicae tempora poseerent, cogitaverunt " : Cicero, "Pro Flacco", c. 39. Cf. herewith Geib, "Ge- schichte", p. 301. The latter, however, goes too far in speaking of the freedom of the lay judges (jurymen) from being bound by the law, and one must not forget that very often Cicero expresses a partizan point of \dew. To the contrary, cf. Seegcr, "Ueber das Verhältniss der Straf- rechtspflege zum Gesetz in Zeitalter Cicero's" (1869). 2 But the emperor himself and the senate, when passing judgment as magistrates, did indeed consider themselves justified in exceeding exist- ing laws {cf. Geib, p. 657), and the jurists and the courts constantly as- sumed rather a wider latitude for them than would be conceded in our times {cf. Savigny, "System des röm. Rechts", I, p. 300). The judges could not remit a sentence when once it had been passed. The right to remit sentences remained the exclusive prerogative of the emperor (L. 27 pr., D. 48, 19). ^ [On all these terms of Roman procedure, consult Mittermaier's chapn ter in Esmein''s "History of Continental Criminal Procedure" (1913, in this Series). — Ed.] ^ Cf. Geib, "Geschichte des röm. Criminalprocess", p. 660, and the authorities there given. 50 Chapter I] THE ROMAN LAW [§ 19 tiam ferre vel graviorem vel leviorem, ita tamen ut in utroque modo rationem non excedat." Now this " ratio " in the inflic- tion of punishment was suppHed by the judicial law embodied in the opinions (" consilium ") emanating from the learned jurists. In spite of the interference of the absolute power of the emperor, in spite of the corrupt fibre of the officials and the corrupt human elements with which it had to deal, the jurists' learning performed its task. There can be no doubt that the science of law was at this time a real force, and that it performed its labors with no low degree of moral sensibility. " Quae facta laedunt pietatem, existimationem, verecundiam nostram et ut generaliter dicam contra bonos mores fiunt nee facere nos posse credendum est " ° is the well known utterance of the most famous of all the Roman jurists, a man who was himself executed by Caracalla (more correctly, murdered) as guilty of high treason. The truth is that the ancient world, which regarded criminal statutes merely as a means to insure the punishment of an act deserving punishment, did not realize that the imposition of a penalty in excess of the plain meaning of the statute was not com- patible with the security of the rights of the indi\-idual.^ The Roman la\\wers felt themselves justified not only in imposing pen- alties " ex sententia " and " ad exemplum legis ", ^ but also in inflicting punishments, whenever the exigencies of life seemed to require it, for acts which previously had not been the occasion for punishment.^ But even here, as remarked, practice did not go beyond the limits of actual necessity. Roman jurists, even in the case of the crime of " lese majeste ", contending successfully against imperial despotism, introduced a distinction between " perduel- lio " and the other cases of " lese majeste ", and limited to the former the severe penalties which were indiscriminately imposerl by the emperors. '■* They succeeded in getting the emperors tt) ^ L. 15, D. "De conditionibus", 28, 7. ^ Cf. as to Athens, Thonissen, " Droit penal de la republiquexVthenienne etc.", pp. ÜÜ, 140 et seq. Cf. as to Rome, Henriot, "JNIanirs juridiques", etc., 11, p. 10(i. ' Cf. e.g. L. 6, § 1, D. "De V. S." Also L. 22, §§8, 9, D. 48, 10, "De lego corn, de falsis." Also L. 7, § 3, D. 48, 4, and Rein, pp. 22.5, 22(i. * Cf. Tit. D. "De extraord. erim." 47, 11, and in reference thereto, Geib, "Geschichte", p. 061. In the later empire, when the jurists' learn- ing was in its decadence, the emperors sought again to restrict the au- thority of the judges. The prohibition freely to construe a statute, which was repeated by .Justinian, had been enacted a century before his time. Cf. Geib, "Geschichte", p. 063. 9 L. 11, D. 48, 4 (Ulpian). 51 § 20] ROMAN AND GERMANIC ELEMENTS [Part I, TiTLE I give their sanction to the notal)le expressions of L. 7, § 3, D. 48, 4 eoneerning " lese majeste." In addition to all this, we owe them our thanks for those two fundamental maxims, so far reaching in their consequences, which to-day dominate the criminal law and procedure of all civilized nations : " Interpretatione leguni poenai potius molliendae sunt quam exasperandse '\^° and "Satius esse im- punitum relinqui facinus nocentis quam innocentem damnare." '^ We also owe our thanks for the notable utterance of Marcian '- concerning the imposition of penalties. ^^ Again, we are in- debted to Roman criminal lawyers for a correct theory of respon- sibility, and for those titles of the Digest which to-day are often too little appreciated, viz., " De furtis ", " De injurias ", and " De falsis " ; as also for the title " Ad legem Aquiliam ", so im- portant for that cardinal point in criminal law, the relation be- tween cause and effect. The last-mentioned title, as a result of the slight regard of their law for the consequence of an act, had influence only in private law, and was not made applicable to criminal law imtil the Middle Ages. However, since Roman criminal law from the beginning paid too little attention to the protection of private rights, and assumed, as it were, the character of police regulations, Roman juristic practice did not attain that high degree of development in the criminal field which we so much admire in Roman private law. This is shown by the history of the theory of " dolus ", which, though the Roman criminal law laid so much stress on " dolus ", was left only partially developed ; the ultimate result of an act was in general given little considera- tion, and " dolus " can be accurately comprehended only when it is considered in relation to a specific result. But, perhaps it is on account of this very thing that the Roman criminal law had so stimulating an influence upon the German Law. § 20. Influence of Christianity in the Later Empire. — In the later Empire, the criminal law, upon the whole, tended to dete- riorate. Just as the Christians had previously been persecuted, so now the power of the State, since the conversion of the emper- ors, was directed against the heathen, whose practices were " L. 42, D. "De poenis", 48, 19. " L. 5 pr., D. "De pcenis", 48, 19. The passage is taken from a rescript of Trajan. 12 L. 11 pr., D. "De pcsnis", 48, 19. 1^ Other maxims are: "In malefieiis voluntas speetatur, non exitus." Rescript of Hadrian in L. 14, D. 48, 9. " Cogitatibnis poenam nemo patitm-"': L. IS, D. 48, 19. "Nee consilium habuisse nocet nisi et fac- tum seeutum fuerit" : L. 53, § 2, D. "De V. S." (Paulus). 52 Chapter I] THE ROMAN LAW [§ 20 forbidden by stringent laws,^ and soon, also, against heretics, i.e. those who rejected the behefs deckired by the State to be orthodox. It was now the heretics who were regarded as of- fenders and enemies of the Christian State. But the right/ of prose- cution was by no means delegated to the Church j/ nor were individuals put on trial for tlieir personal beliefs. This frightful calamity' did not come to pass until the domination of theology in the ^liddle Ages. As yet, only the adherents of certain sects,- were persecuted, under special penal statutes of varying stringency, or were in some other way placed at a legal disadvantage.^ Consider- ing the hostihty of parties within the Church towards each other at that time, there were among these sects many which could not well be tolerated without danger to the peace and the public safety.^ At this time, new and stringent penalties were laid down for the protection of the Church and the clergy. Laws were enacted against the disturbance of worship and against acts of violence toward members of the clergy when performing their duties, against seduction of nuns,'' interference with the right of asylum afforded by the Church, and the violation of its privileges by public offi- cials.*' But the State, as it gradually became weaker, felt itself constrained to restrict with penal laws the extreme power of the clergy and its followers, although it made use of the Clergy in the supervision of the officers of criminal justice.^ Thus, e.g., " con- venticula " in private houses, which often occasioned disturbances, was stringently prohibited. Against the abuses of the " parab- olani " (the caretakers of the sick and needy of the Church), who were often at the absolute disposal of a bishop and constituted a powerful body-guard,^ there were directed such pro^■isions as L. 17, C. 1, 3^417 A.D.).» 1 Plainer, pp. 248 et seq. 2 Christians going over to the beliefs of Heathendom or of the Jews were also ])unished ; cf. Plainer, pp. 204 ei seq. To offer circumeisioa to a Christian was later a capital offense. * Plainer, pp. 252 el seq. ' Cf. e.g. L. 2 and 3, C. Theodos. 16, 4 (a.d. 3n (cf. L. 1, C. "De emendatione servorum", 9, 14) the existinic custom of inhumanly flogp:ing slaves as a punishment for homicide. ^^ The counterfeiting of a "solidus" was punished bv burning alive by L. 5, C. Theodos. 9, 21. Peculation (>ntailed the death penalty (L. 1, C. Theodos. 9, 28), as did also the origination and circulation of "libelli famosi" (L. 10, C. Theodos. 9, 34). 55 § 20] ROMAN AND GERMANIC ELEMENTS [Pakt I, TiTLK I poses. Reckless experiments were made with a crude theory of deterrence, without l^nowledge of the effect which excessive and varying penal provisions have upon the morals of a people. In this respect, it is sufficient to recall the barbarous penal provi- sions of the despotic Constantine against the crime of abduction,-" and the provisions of the Code of Theodosius which threatened with severe criminal penalties the wearing of trousers in Rome or the wearing of long hair ; to recall also the passage which pro- vided deprivation of all honors and possibly deportation for those who ventured to use a thorn stick in urging horses of the imperial posts.^^ Many of those deformities of the law were indeed repealed by the better emperors, among whom Justinian may be included. However, on the whole, the principles of the Roman criminal law, excellent in many respects, had only an uncertain and pre- carious application. They were known to the jurists but were never the absolute property of the people. On the other hand, it may be regarded as fortunate that these principles were pre- served in the compilation of Justinian along with the numerous arbitrary features belonghig to Roman State crimes and probably inseparable therefrom. ' Jhe genius of the Germanic peoples was able to reject the irrational elements and at the same time to make the fundamenta^^rinciples the permanent property of the entire civilized world.--"/ 2" Molten lead was poured into the mouth of the niu'ses (or governesses) who had loaned then* assistance : L. 1, C. Theodos. 9, 24. 2' As to tliis and similar matters, cf. Von Holtzendorff, p. 146. 22 There is little of immediate interest for the history of German criminal law in the history of Roman criminal law after Justinian. It is deser\ing of notice, but not readily explainable, that the later Greek law had much in common mth the German criminal law of the Middle Ages. Thus there was to be found composition and settlement with the injured partj'. Cf. E. Zacharici v. Lingenlhal, "Geschichte des griechish-röniischen Rechts" (2d ed. 1877), pp. 303 et seq. 56 Chapter II PRIMITIVE GERMANIC CRIMINAL LAW §2L §22. § 23. §24. Prominence of the Element of Vengeance. Outlawry not the Most Primitive Form of Punishment. Special Relations of Peace. "Breach of the Peace of the Land." Composition of Offenses. Little Consideration Given to the Element of Inten- tion. Explanation of this §25. §26. Lack of Consideration. Secrecy. Influence of the Early Kings. Capitularies Carolingians. Ban. Other Forms Punishment. of the The Royal of Criminal Influence of tlie I^unishment of Slaves. Effect of Loss of Freedom by Mass of the People. §21. Prominence of the Element of Vengeance. — The prim- itive Germanie criminal law,' far more distinctly than that of the 1 In regard to the matter contained in this chapter the following writers may be consulted: Wiarda, "Geschichte und Auslegung des Salischen Gesetzes" (1808); Henke, " Grundriss einer Geschichte des deutschen peinliehen Rechts" (2 vols. 1809), cf. Vol. I, pp. 1-108; Eichhorn, "Deutsche Staats- und Reehtsgeschiehte " (5th ed.). Vol. I, §§ 71. 206; Rogge, " Ueber das Gerichtswesen der Germanen" (1820); Jarcke, "Handbuch des deutschen Strafrechts" (Vol. I, 1827), pp. 10 et seq.; Grimm, "Deutsehe Rechtsaltert hümer" (2d ed. 1854); Abegg, "Unter- suchungen aus dem Gebiete der R(>chtswissenschaft " (1830) ; Warnkönig, " Flandrische Reehtsgeschiehte " (3 vols. 1838-39); Von Woringc», "Bei- träge zur Geschichte des deutschen Strafrechls ", I, "Erläuterungen über das Compositionenwesen " (1836); Wilda, "Das Strafreeht der Ger- manen" (1842j; Von Wächter, "Beiträge zur deutschen Geschiehte, iu- besonderer des deutsehen Strafreehts" (18-1.")), 11, "Das Faust- und Fehdereeht des Mittelalters"; Walter, "Deutsche Reehtsgeschiehte" (2d ed., 1857), Vol. 2, pp. 319-417 et seq.; Du Boys, " Histoire du droit criminel des peuples modernes" (4 vols. Paris, 1854 et seq.); Woitz, "Deutsche Verfassungsgcsehichte " (3d ed. 1880), I, especially pp. 418- 442; Kösllin, "Geschichte des deutschen Strafsreehts im Umriss, heraus- gegeben von Gessler " ( 1859), pp. 58 et seq. ; Geib, " Lehrbuch des deutschen Strafrechts", I (1861), pp. 152-196; Osenbriiggen, "Das alamannisclu« Strafreeht im Mittelalter" (1860); Osenbrüggen, "Das Strafreeht der Langobarden " ( 1863) ; Von HoUzendorff, " Handbuch des deutschen Straf- rechts ", I, pp. 57-67; Da/i?i., " Westgothisehe Studien" (1874), pp. 140- 242; Pasquale del Giudice, "La vendetta nel diritto Langol>ardo" (Milano, 1876); R. Löning, "Der Vertragsbmch im deutsehen Recht" (1876); Dahn, "Fehdegang und Rechtsgang der Germanen" (1877); 57 § 21] ROMAN AND GERMANIC ELEMENTS [PaeT 1, TiTLE I Romans, is based upon the principles of vengeance - and self- defense. This criminal law, when it assumed the form of ven- geance, belonged only to the party injured or his kinsmen (" sippe ").^ However, the party injured might be the com- munity at large, if the ofi'ender made a direct attack upon the community, or fell short in the performance of duties owed to it. The criminal, then, is the enemy of either the individual or the community. But it is only in the latter case (since it is only in his relation to the community that the early German appears as subject to authority) that the idea of public or State punishment acquires prominence. Thus, in the "Germania" of Tacitus,'* the expression "discrimen capitis intendere" refers only to direct^^ offenses against the community, such as treason, going over to the enemy, and disgraceful retreat "* in battle ; while the worst Von Wächter, "Beilagen zu Vorlesungen über das deutsche Strafrecht", I (1877), pp. 77 et seq.; Jastroiv, "Zur strafrechtlichen Stellung der Sclaven bei Deutschen und Angelsachsen" (1878); Sichel, "Geschichte der deutschen Staatsverfassung", Division I, " Der deutsche Freistaat " (1879). [Cohn, " Die Verbrechen im öffentlichen Dienst, nach altdeutschem Recht " (Karlsruhe, 1876); Bennecke, "Geschichte des deutschen Strafprozesses" (Marburg, 1886); Budde, " Ueber Rechtlosigkeit, Ehrlosigkeit und Echt- losigkeit" (Bonn, 1882); Kohler, " Studien aus dem Strafrecht" (Berlin, 1895); Beschütz, "Die Fahrlässigkeit innerhalb der geschichtlichen Ent- wickelung der Schuldlelu-e : Theil I : Vom primitiven Strafrecht bis zur peinlichen Gerichtsordnung Karls V"; Brunner, "Deutsehe Rechtsge- schichte", 1st ed., Leipzig, 1887-1892; 2d ed., Vol. I, 1906; Hoegel, "Ge- schichte des österreichischen Strafrechts in Verbindung mit einer Erläu- terung seiner grundsätzlichen Bestimmungen ", 1904-5 ; K. Maurer, " Vor- lesungen über altnordische Rechtsgesehichte " ; Vol. 5, "Altisländisehes Strafrecht und Gerichtswesen", 1910; Heusler, "Das Strafreeht der Isländersagas", 1911 ; Gierke, "Schuld und Haftung im alteren deutschen Recht", 1909; //caster, "Institutionen des deutschen Privatrechts", 1883-5; Schröder, "Lehrbuch der deutschen Rechtsgeschichte", 5th ed., 1912.] 2 "Lex Bajuv." VIII, c. 8 "secundum legem vindicta subjaceant." 3 Tacitus, "Germania", c. 21: "Suscipere tam inimicitias seu patris seu propinqui quam amicitias necesse est." As in the early stages of legal development with other peoples, vengeance appears as a moral duty. As proof of this, it is only necessary to recall the Nibelungensage. As to the Norse Sagas, in which vengeance is enjoined upon near blood relatives as a moral duty, see Wilda, pp. 172, 177. ■'"Germania", c. 12. ^ " Licet apud consilium accusare quoque et discrimen capitis intendere. Distinctio poenarum ex delicto. Proditores et transfugas arboribus sus- pendunt ; ignavos et imbelles et corpore infames cseno ae palude, iniecta insuper crate mergunt." The much disputed "corpore infamis" certainly has reference to unnatural lewdness {cf. Tacitus, "Annals", I, 13). How- ever this, according to the most primitive German law, was criminally punishable only when it occurred at encampments of the army, — just as, in Tacitus, mention is made only of crimes which took place during a military expedition. In the army, discipline was more strictly exer- cised than under the ordinary criminal law, and in the army the tempta- 58 Chapter II] PRIMITIVE GERMANIC CRIMINAL LAW [§ 21 offense against the individual, homicide, merely brought about, according to Tacitus, •"' a condition of hostility from which the payment of some composition would procure release. " Luitur enim et homicidium certo armentorum ac pecorum numero, reci- pitque satisfactionem univcrsa domus." As has been correctly stated by Eichhorn,^ it was only in cases of crime against the nation itself that the nation acquired power over the life or body of a free man. The " Lex Bajuvariorum " declares : ^ " Ut nullus liber Bajuvarius alodem aut vitam sine capitali crimine perdat ; id ist si in necem ducis consiliatus fuerit, aut inimicos in provin- ciam invitaverit aut civitatem capere ab extraneis machina\erit. , . . Tunc in ducis sit potestate vita ipsius et omnes res ejus in Patrimonium." ^ This, however, did not preclude the party tion and inducement to the above-mentioned offense were espeeially great. Cf. Arnobius, "Adv. nationes", 4, 7 p. 146, 19 II: "Etiamnc mililaris Venus eastrensibus flagitiis pnesidet et puerorum stupris." For oilier explanations, cf. Waitz, I, p. 396 (2d ed.), p. 425 (3d ed.). Hcnkc, I, p. 4, believes that "corpore infames" has reference e.g. to voluntary mutilation with the view to avoid military service. Also Pnsqunle del Giudice, p. 5, believes the passage of Tacitus has reference only to the exercise of disciplinary power in the army, and correctly calls attention to the fact that c. 11 of Tacitus says: "Silentium per sacerdotes quihus tum et coercendi jus est imperatur." The priests have the "jus coerceudi " only during the public assembly. ^ "Germania," c. 21. 7 Eichhorn, I, p. 387. ^ "Lex Bajuv.", tit. 2, c. 1. ^ Where penalties of life and limb on account of private crimes occur in the Germanic folk-laws, they are in my opinion to be attributed to some foreign influence, — to the Roman law or to the ordinances of the kings. There is perhaps an exception for the numerous death-penalties on account of theft, which was considered dishonorable for a free man. On the other hand, Von Ainira, "Ueber Zweck und Mittel der german- ischen Rechtsgeschichte " (1876), pp. .')7-59, reasserts the essentially reli- gious character of early Germani(! criminal law. 1 am unalih", however, upon the whole to find justification for ascribing this character to the Ger- manic law, either in the Norse sources, in the relation between capital punishment and the sacrifice of human victims among the heathen Frisians, or in the above-mentioned passage from Tacitus (G. C. 7) concerning the criminal power of the priests. The idea that among the priiniti\e G(>r- mans, in the case of crimes against the community, the gods wlio protected the same must also be reconciled is not to be rejected. But tliis religious flavor, as it were, is not to be taken as definitive of the character of the criminal law. The passage of Tacitus speaks only of crimes committed on military expeditions; the Germans, as Tacitus expressly states, believed in the specud presence of their gods, and only during the mili- tary expedition, as Tacitus states, did the Germans submit to a certain criminal power in matters of discipline which was exercised by the priests and for this reason was held in greater respect. Von Amira asserts that a larger part of the base acts which in heathen times were punished with death (sacrifice« as a victim) wert> liy Cliris- tianity made expiable or merely to entail outlawry. Yet althougli this may be correct in regard to the Scandinavians, it has not been proven true in regard to the territory of the Frankish realm, and in my opinion is 59 §21] ROMAN AND GERMANIC ELEMENTS [Part I, TiTLE I injured, in extreme cases, from liis right to slay the criminal if the latter was not able to pay the composition levied by the community or fixed by mutual agreement. " Et si eum in con- positione nullus ad fidem tullerunt hoc est ut redimant, de quo domino non persolvit, tunc de sua vita conponat." '"^ The criminal would be delivered by the judicial power to the family of the man slain by him, for the exercise of private vengeance, — as we find occasionally happening even in the later ^Middle Ages.-'^ The community appears to have been concerned in the crime only in so far as it arranged the peace between the hostile parties, not the ease. It is certainly correct, as Richthofen, " Zur Lex Saxonum" (Berlin, 1868), pp. 218 et seq., has shown (Von Amira also refers to this) that the heathen Saxons inflicted capital punishment for murder, adul- tery, and certain other offenses not directly prejudicial to the community, and that most of those cases in which capital punishment was inflicted, found in the Lex Saxonum and the Saxon Capitularies of Charles the Great, which differ from those of the other German folk-laws, are received from and modelled after the more primitive law {e.g. burning of a church, homicide in a church). But it is not to be assumed from this, that the Saxon law, as it existed immediately before the statutes of Charles the Great or even a century earlier, is an example of the oldest Saxon law or the law of the race in the time of Tacitus. Private vengeance can be sup- planted by public punishment without the intervening steps of composi- tion, and this could readily occiu" in cases where the previous similaritj'^ between members of the same race vanished under the domination of an individual or of a powerful aristocracy comparatively few in number. This last was undoubtedly the case with the Saxons, among whom the "nobiles ", who constituted, as it were, a caste from which the ordinary free men were excluded (c/. Richthofen, "Zm* Lex Saxonum", pp. 223 et seq.) and who infUcted death upon the ordinary free man who married one of their number, and were even able to impose for themselves six (!) times the "wergeld" of an ordinary freeman. Such a condition did not exist among the other German tribes. Perhaps such a penalty as the above was applied only against those who were not nobles, and against nobles there was only the right of feud. This would explain the special protec- tion of the "faidosus" in certain cases. (C/. Richthofen, p. 231, as to provisions of tliis character in the "Lex Frisionum" which east light upon the "Lex Saxonum.") This also explains why, after Charles the Gi-eat, the domination of the nobles being broken, there re\dved in most cases the old law of composition, which was so long retained as the most ancient law of North Germany. Cf. the comments of Siekel, pp. 72 et seq. and especially pp. 76, 77 : "If one considers more closely the conditions under Avhich the German priesthood lived, it will be seen that often the priest- hood had conditions unfavorable for its development." io"Les Salica", LVIII, 2 a. E. (ed. Behrend); cf. Wiarda, p. 272; Pardessus, " Loi salique ", p. 664. Abcgg, p. 319, also explains the passage in this way. In the supplements of Count Baldwin to the decrees of Ghent, in the last of the 1100 s, it is said that for a case where an "e.x- traneus" had wronged an "oppidanus" (citizen), and had not rendered him satisfaction within the fixed time ("quod si nondum satisfecerit reus), "licebit male tractate, sine omni forisfacto . . . qualemcunque potuerit vindictam sumere": Warnkönig, "Flandrische Staats- und Rechtsge- schichte", II, 1, note vii (p. 18). " Cf. Warnkönig, "Flandrische Reehtsgeschichte ", III, p. 160. 60 Chapter II] primitive Germanic criminal law [§ 21 i.e. the offender and the party injured.'- Then/'' if the party injured announced that he would be satisfied with the payment of a composition, which in the most primitive times consisted of n number of cattle, the community received from the criminal {i.e. for the arrangement of the peace) ^"^ the "peace money" ("fredus" or "fredum"). •2 "Germania", c. 12: "Sed et levioribus delictis pro modo poena: equorum peeorumque numero eonvicti multantur. Pars multae regi vel civitati, pars ipsi qui vindieatur, vcl propinquis ejus exsolvitur." " It must have been realized that open hostility between numerous citizens was injurious to the community, "quia perieulosiores sunt inimi- citiiE juxta libertatem." Apparently the chiefs arranged the peace at the gathering of the army, and the "fredus" was originally a present voluntarily given by tlie offender. " The more generally accepted view is {cf. Waitz, "Deutsche Verfass- ungsgeschichte", I, p. 440; Gierke, "Das deutsche Genos.senschaftsrecht ", I, p. 31) that the "fredus" was a pennltij paid because of the breach of the peace, and not a price paid for the peace that was reestablished (between the offender and the injured party); cf. Waller, "Rechtsgeschichte", II, §. 714; Wniiz, 3d ed., I, p. 440. It is left undetermined which of these two was the case. To me, this distinction is unclear. Waitz rejects the idea of payment to the one who arranged the peace ; but would he sooner admit payment for judicial activity? There is no special evidence for this, but rather there is only the general but incorrect impression (see infra) that the crime is a breach of the general peace. Cf. the contradic- tory position taken by Kemble, "The Saxons in England", I, p. 290; also the comments of Moser, "Patriot. Phantasien" (Abeken), IV, pp. 12G et seq.; Von Wächter, "Beiträge", p. 42; Vo?i Siegel, p. 29. It can be positively proven that according to the "Capitularies" ("Cap. Karoli M. Ticinense ", a.d. 801, n. 24 Ferlz, p. 86) the "fredus" was not paid to the judge of the district in whicli the crime took place {i.e. where the peace was broken), but rather to the judge who arranged the composition ; that the payment of the same was received for the injured party ; and further that, according to the ancient rules of law and those obtaining until nearly the end of the Middle Ages {cf. e.g. "Lex Rib." LXXXIX ; "Cap. Karoli M." a.d. 801; "Brüimer Stadtr. a. d. Mitte des XIV Jahrhunderts", § 41 (in Röxsler), p. 358; Von Maxirer, "Geschichte der Städteverfassung in Deutschland ", 111, p. G5S ; "Brünner Schöffenbuch ", n. 245) the judge might only receive this payment for negotiating the peace ("esmenda" or "wette") if the "satisfactio" or "compositio" had ■previously been paid to the injured party; and finally that the "fredus" or later the "wette" was not paid, if there had l)ei'n public punishment ("Sachs. Landrecht", 111, 50; "Schwal)ensi)ieger', 17G, ed. Lasshirg). Public punisliment is a substitute for vengeanci', and also the opposite of the arrangement of a peace. If it was (as corresponds with tlie modern but not the medieval view) a reestablishment of peace between the com- munity, the injured party, and the offender, then the "fredus" would bo paid both in addition to "compositio" and to public punishment. It was not until the rise of a procedure under the diri'ction of ])ul)!ic oHicials that tlu! "fredus" assumed the character of a pul)lic punishin(>nt {Von Maurer, ante). There is also connected lierewith the fact tliat, until late in the Middle Ag(>s, a far-reacliing distinction was made betwi'i-ii the criminal who voluntarily api)eared and him who was captunnl. The former, according to the Bamberg law, even if ho was convicted by witnesses, would be again set free; capital punishment was not permis- sible: Brunnenmeister, "Die Qu(>llen der Bambergonsis, ein Beitrag zur Geschichte des deutschen Strafrechts" (1879), pp. 44, 45. 61 §21] ROMAN AND GERMANIC ELEMENTS [Pakt I, Title I Outlawry not the Most Primitive Form of Punishment. — The view of Wilda and others tliat the earhest punishment of the criminal, even in offenses against the individual, was a general outlawry, in the sense that the criminal was at once cast out among the wild animals of the forest, thus becoming a " forest rover " (" wargus ") who could be killed by anyone with impunity, is not correct. Under these circumstances, as Von Amira points out, a contract with the party injured would be legally ineffective, and the outlawry would at once become public punishment in its strict sense. That outlawTy of this character appears in the Norse sources is admitted.^' But the Norse Von Woringen, pp. 105 et seq., is correct in his view that a crime did not originally cause general outlawry, but he incorrectly concludes that the "fredus" would have to be paid for the breach of the peace. Since peace had not been lost for the criminal, it could not well be repurchased. But what is the distinction between a broken peace and a lost peace? I am unable to see the difference. It is, however, proper to make a distinc- tion between peace with the injured party and peace with the community. The fact that the amount of "fredus" was graded in accordance with the person who was injured is capable of a ready explanation by the \qew here accepted. Can not the price for negotiating the peace be varied in accordance with the importance of the controversy, and is not this what would naturally happen? Sickel, p. 1.54, would maintain that the "fredus" was originally not a court fee, especially for the reason that the "collegium" of judges were too numerous to derive benefit from it. But could there not be certain favored ones, who e.g. made the proposal for the peace? The narrative of Gregory of Tours (Hist. Franc, c. 47) given by Rogge (p. 1.5, note 25), is in accord with the view that the "compositio" rested originally merely upon a compromise, which the leaders of the nation negotiated with a. view to the advantage of the general public. The judges considered themselves justified in order to perfect a settlement someway or other, in conceding to some powerful party an amount as a "compositio" to wliich, according to strict justice, be had no claim. In no way did the later public punishment supplant the money paid for the peace, but rather it sup- planted the exercise of vengeance, of private satisfaction. Consequently it is stated in the "Sächsisches Landrecht ", III, 50, that if a German had incurred as a penalty the loss of life or hand, he should pay neither "wette " nor compensation ; and the Kursaxon law even in the 1600 s did not recog- nize "wergeld", if the individual who was sentenced underwent the death penalty ; wliile the Italians, proceeding from the independence of the ei\'il claim in respect to the claim for punishment, allowed claims for damages to the descendants of the slain man in a judgment pronouncing the death penalty against a murderer or generally one who had slain another: Berlich, " Conclusiones practicabiles " (1615-1619), IV, 19, n. 15 et seq. and especially n. 24. Confiscation of property, but not a definite amount of money as a penalty or as a compensation, is related to the idea of vengeance ; since confiscation of property amounted to the economic destruction of the offender, while a definite measure of damages according to tlie old Ger- man viewpoint presupposed an agreement. Consequently, along with punishment by death or mutilation, there were numerous confiscations of property. The distinction between confiscation of property and "wette ", ' busse ", is overlooked by Köstlin, "Krit. Ueberschau," Vol. 3, p. 183. ^* Cf. in opposition to the opinions herein contested, the correct obser- 62 Chapter II] PRIMITIVE GERMANIC CRIMINAL LAW [§ 21 sources/^ which are later than the time of the origin of the folk-laws, by no means exemplify the Germanic criminal law in its earliest form, and certainly it is not justifiable to main- tain that all the legal institutions of the Xorse people were those of the Germanic peoples generally. In the Germanic sources, the nearest approach to outlawry as a consequence re- sulting directly from tlie act (and not as something inflicted by the royal or judicial power as a punishment for refusal to submit to the law, or as a form of attainder) ^^ is to be seen only in the fact that, in the earliest periods, the party injured was permitted to wreak vengeance upon the criminal,'^ to treat vations of Von Woringen, pp. 103, 104, and Hugo Meyer, "Das Strafver- fahren gegen Abwesende" (18(59), pp. 48 et seq. ^^ Von Amira, "Das al t nor wegi sehe VoUstreekungsverf ahren " (1874), pp. 1-78, especially pp. 18 cl seq. Cf. the comments of K. Von Maurer in the "Münchener kritische Vierteljahrsehrif t ", 16 (1874), p. 83 et seq.; [and Chap. VI, post]. 1' Cf. Rogge, pp. 19 et seq. Loss of the general peace did not occur until the offender had ignored the intervention of the communit.v, and flid not heed the summons of the complainant to appear before the assem- bly. But even tliis was not until the acceptance of this intervention had come to be regarded as a legal duty. Tliis loss of the general i)eace in I lie French and German sources because of the existence of a strong kingly power appeared as a form of proscription. Cf. "Lex Salica" .öl), 1 (Kd. Behrend) : "Si quis ad mallum venire contempserit ... si nee de eomi)()si- tione uec ineo nee de ulla legem lidem faeere voluerit, tunc ad regis priv- sentia ipso mannire debet . . . § 2 . . . tunc rex . . . extra sermonem suum ponat eum." Rogge, however, is mistaken in his view that at this time the offender had the right to choose between "compositio" and feud. The offender appears to have been absolutely bound to pay the "composi- tio" if the injured party so desired. Cf. as opposed to Kogge, Eichhorn, I, § 18, note G; Von Woringen, p. 38. The development of the law in Italy as it appeared in the law of the Lombards is in conformance herewith. The so-called public ("städt- ische") ban which was so important in the later Middle Ages, and to which so much attention is given by both the statutes and the jurists was, in grave criminal eases, primarily a result of disobedience. How- ever, it became a punishment in so far as, on failure of an accused, whose guilt was known, to pr(»sent himself in the proper manner, the thouglit of compelling him to appear became subsidiary to the idea of making tlio ban (a partial or complete deprivation of legal protection) so severe that it took tlic place of the ap|)r<)i)riat(' i)iinislun('nt. Cf. FicL-cr. " Forseliuiigen zur Reichs- und Rechtsgcsehichtc^ Italiens" (I, ISfiS). pp. 92 et .srr/., especially 97. The statement that under some circumstances the mere ban creating banishment was the equivalent of an independent punish- ment is not prejudiced l)ut is rather supported by two arguments — on one hand, that if there was fear that disturbance and feud would result from the continued residence of the accused in the city, this ])unishmeiit was suggested by reasons of expediency, and, on the other, tlial if the offender was not able to pay. l)anislimeiit must have been regarded as of less severity than tlie puinsliincnt of mutilation which wouhl otiierwise be inflicted. The CJerman " Kciclisacht" or " Iti'iehsaberacht " {i.e. ban of the empire) is, according to a correct conception, a ban becau.se of dis- obedience and not "per se" a punisliment of certain crimes: FicL-er, pp. 174 et seq. ^^ Cf. Eichhorn, I, § 18; Von Woringen, pp. 32 cl seq.; I'ardcssus, pp. 03 §21 J ROMAN AND GERMANIC ELEMENTS [Pakt I, TiTLE I him as " faidosus ", and that i)()ssihly some of his comrades would take it upon themselves to support the party injured in his actions. There may also have been something of this character when the <'riminal rejected or paid no attention to the proposition of settle- ment ofl'ered to him by the injured party through the public as- sembly, or, at a later period, when the criminal ignored the sum- mons of the king (or court) issued upon motion of the injured party.'-' Possibly the development of the law in France may have been the same as that shown in the Norse sources ; an indication -° of this may be found in the passage of the " Lex Salica " "' quoted by Wilda and in the " Lex Ribuariorum ", LXXXV. Apart from those acts which were especially directed against the king or the community, a crime is not so much a breach of the general yeace as it is a breach of peace -- with the party injured r^ 653 et seq.; Von Wächter, "Beiträge zur deutschen Geschichte", pp. 4.3 and 249. At a later period, indeed, the injured party was obliged to be content with a "compositio." However I do not agree mth Von Amira in his view that this was the most primitive law. Rather does this exhibit a very early trace of the Germanic character which still appears in our modern duels, and which prefers to take the law in its own hands rather than assign it to a judge. However, Tacitus states that the immediate consequence of a wrong was the "inimicitise ", which could be appeased by the payment of compensation. 'a Moreover, vengeance was to be exercised with observance of certain formaUties, — was public as it were, so that it could itself be distinguished from crime. Thus, among the Salian Franks the head of ä man who had been slain in the exercise of vengeance was placed upon a stake, and a third party was not permitted to remove it: "Lex Sal.", XLI, 8, 2. Vengeance here appeared as a formal institution of law. Cf. Wiarda, p. 283. By the setting up of the head, the slayer as it were offered a public justification of his act: Pardessus, p. 658. 2" The "Lex Salica" pro\'ided that anyone who should dig up and rob a buried body "wargus sit usque in die ilia quam ille cum parentibus ipsius defuncti conveniat et ipsi pro eum rogare debent, ut illi inter homines liceat accedere. Et qui ei antequam parentibus conponat, aut panem dederit aut hospitalitatem dederit, sen parentes seu uxor proxima, DC dinarios qui faciunt solidos XV culpabilis judicetur." However, the offense here referred to has a distinct religious significance and for this reason the method in which it is dealt with may be explained as being exceptional. 21 LV, 2 ed. Behrend. 22 As stated by Waiiz (3d ed.), I, p. 436, agreeing with Walter, § 705 : "It may be said that in respect to the indi\adual {i.e. the injiu-ed partj' and his family) the offender was without peace ; he had destroyed the existing peace." Cf. also Sickel, who (correctlj' in my opinion) concludes, from the isolated lives of the indi\adual famihes, that the community was not concerned wath injuries to individuals. 23 The acceptance of the \'iew that crime originally among the Ger- mans was a breach of the general peace is nothing other than the accept- ance of the \iew that there was a public criminal law for what we to-day call crimes against individuals (i.e. as contrasted vvith crimes against the State as such). Such is the \iew of Waitz, I, pp. 427 et seq., who here 64 Chapter II] PRIMITIVE GERMANIC CRIMINAL LAW [§21 According to the Germanic conception, the essence of a crime is not the breach of formal law and order, but rather the violation of a substantive rigJitr^ This is an idea which should be constantly held in mind if one would hope to gain a proper conception of the German criminal law and its historical development. In the Germanic conception of law, the so-called " formal crime ",-'' i.e. a crime that does not violate a concrete right, is regarded as a special exception.^^ In the Xorse sources it is most probal)lc that this same condition obtained, i.e. the general outlawry resulted only because of regard for the party injured. The crime in itself is not a breach of the peace with the community at large, — al- though such may easily be its result. The classification of oflFenses foUows the (unclear in other respects) conception of Wilda. But if, as Waitz maintains, there was such an extensive criminal power as early as the time of Tacitus, how is the fact to be reconciled that in spite of a royal power that was increasing and becoming more vigorous, the public criminal power was less in extent and weaker even under kings such as Charles the Great? How is it to be reconciled ^\^th this \-iew that, as even Waitz says (3d ed. p. 439), it was only the complaint of the injured party that brought about a prosecution of the WTongdoer? ^^ Herein I am completely in accord with Löning, "Der Vertragsbruch im deutschen Rechte", p. 48, who states that tlie feud was the only legal consequence of a wTong in the earliest Germanic law. The feud was, according to the " Lex Salica", ended by a pledge to render a composition, and the judgment is directed towards the performance of this pledge. ^'^ It should be noted in connection heremth that, in the primitive Germanic law, the sacred or rehgious aspect of law is not very prominent. Crimes against individuals are not regarded as offenses against the Gods. Tacitus was of the opinion that it was only in case of offenses against the army that the priests had a criminal power, and thus explains it : "deum adesse bellantil)us credunt." The special punishment of a violation of a place sacred to the Gods among the Frisians ("Lex Fris." Add. 11) can readily be explained by the idea that in this case the deity was wronged just as the individual whose home was ^\Tongfully broken into. ^^ The punishment of unchastity as such, i.e. not merely as a WTong or injury to another person, e.cj. the head of the household, was originally unknown to the Germanic law. The well-known passage of Tacitus ("Germania", e. 12) concerning the "corpore infames" probably refers to the punishment of sodomy. But from the general position of the passage, since Tacitus speaks only of the punishment of ads prejudicial to the army, it appears that it refers only to sodomy committed during a military encampment. Cf. note 5 ante. Also in "(^ap. Ansegisi" c. 48 {Pertz, "Legg." I, p. 278) mention is made onlj^ of penalties enforced by the church for unnatural lewdness. Is it permissible to assume tliat the early punishment of unnatural lewdness was later discontinued? From the North German sources, it appears that offenses against morality were treated with extraordinary leniency until the 1200 s. Bigamy <.;/. was punished in Lübeck with quite moderate fines, (y. Frcnilarff. in thi' "Hansische Geschichtblättern" (1874), I, pp. 30, 37 \ Hire, "Zeitsclirift für Keelitsgeschichte ", III, p. 210 el scq. Äloreover, in the later South German and Swiss sources unnatural lewdness is frequently referred to as "Ketzerei" ("heresy") and "Unchristliches" {cf. Osetihriiygcn, "Das Alamannische Strafrecht ", p. 289), a positive e\-idence of the origin of the legal rules dealing herewith in the influence of the Church. 65 § 22] ROMAN AND GERMANIC ELEMENTS [Paut I, Title I as those which are and those wliich are not breaches of the peace was, in its original sense, based neither upon the elements consti- tuting the offense, nor upon its object, but rather upon its legal consequences. § 22. Special Relations of Peace. — There were, as appears from the early German sources, certain special relations of peace in connection with certain persons, assemblies, places, times, and things. Thus there were such relations of peace in respect to assemblies of the people, also of the courts (" Dingfrieden "), and of the Church (including also persons attending the popular or court assemblies or the army or the Church). Other examples of a " peace " applied to the home, the mill, the royal palace or generally the place of residence of the king (or duke), or else have to do with the clergy or travelers. Now a breach of such a special relation of peace did not constitute a special kind of crime. It was merely a fact affecting an act of violence which would in any case have been a wrong, and deprived it of the possibility of justification on the ground that it had been done in pursuance of a lawful feud. The language of the ancient sources referring to this is unequivocal. INIention is always made of an act which would, in any case, be an offense ; ^ nothing is said relating to an abstract breach of the peace, e.g. the peace of the court (" Dingfrieden ") or the peace of the home.- " Breach of the Peace of the Land." — It was not until later that a special offense was constituted by the so-called " breach of the peace of the land " (" Landfriedensbruch "). This referred ' Cf. e.g. "Lex Salica" (ed. Behrend), LXIII. § 1: "Si quis hominem ingenuum in oste occiderit . . ." ; "Lex Sax.", XXI_, " Qui in ecclesia homi- nem Occident vel aliquid furaverit vel earn effregerit . . . " ; XXIH, "Qui homini ad eeelesiam vel de ecclesia die festo pergenti . . . insidias posuerit eumque occiderit"; XXVII: "Qui hominem propter faidam in propria domu occiderit capite puniatur." Here the home and the peace of the home does not constitute an exception. It was originally regarded as a violation of the peace of the home only if one entered a house with violence \\\\.\\ a view of committing an act which was of a criminal nature apart from this special circumstance, e.g. to kill, to steal or to commit an act in pursuance of a feud. Entrance leith arms (mth or vvnthout the consent of the person dwelling in the house) was deemed the equivalent of enter- ing with violence. C{. "Lex Rib.", 64 (66) ; "Lex Burgund.", XV; "Lex Bajuv." (Textus I), "XI, "De vlolentia." In "Ed. Rothari", 278 it is even stated: "Mulier curtis rupturam facere non potest, . . . absurdum videtur esse, ut mulier libej-a aut ancilla quasi vir cum armis vivi facere possit." However, this rule was abolished in the law of the Lombards. 2 If as e.g. in the "Cap. Karoli M." a. 803 [Pertz, "Legg", p. 126 it is said: "Ut ecclesia, vidua?, orfani, vel minus potentes pacem rectam habeant. Et ubicumque fuerit infractum sexaginta solidis componatur ", yet it is only meant by this that violence under the justification of self- redress is not to be exercised against the parties named. 66 Chapter II] PRIMITIVE GERMANIC CRIMINAL LAW [§23 to private war between members of the higher classes, the tenants *' in capite " of the crown, the barons, and tlie cities ; sueh j)rivate wars continued long after the time when other acts of violence done by individuals had lost the justification of self-redress or feud, and also long after the time when a feud could be begun because of a breach of a promise specially given by an individual in respect to some definite point in dispute ^ settled through com- promise or agreement. §23. Composition of Offenses. — The offenses which in those times were the most important and with which the folk-laws were mostly concerned were homicide, personal injuries, and certain injuries to property. The folk-laws contain provisions fixing in very exact detail the amount of the damages (" compositio "). This latter, in cases of homicide, was called " weregildnm ", " werigilt " (meaning " man money " or " man price ") and also *' lend us " or " leudis." The damages were calculated with a regard to the importance of the part of the body injured or lost to the party injured, and also with regard to his rank.^ In the gradation of the damages, attention was also paid to the violation of honor which accompanied the offense,- certain pro\isi()ns ' CJ. Loning, "Vertragsbruch", I, p. 133, who correctly is opposed to the position taken by Wilda and also l)y Köstlin and Geib, who would exalt the pledged peace into being a higher variety of the general peace. It was not until later that a breach of a pledged peace constituted the special offense of "Urfehdebruch" (i.e. breach of oath to keep the peace) : Loning, p. 500. This appears in "Ed. Rothari ", 143 as a circumstance specially aggravating an act which would be an offense regardless of this circum- stance. Such an act could be regarded as especially disgraceful, and came close; to a suggestion of the idea that by its commission its author declared himself no longer governed by any rules of law {cf. the formula of outlawry in such cases, given by Grimm, p. 39). Legislation had every reason to deal very vigorously with such cases. The discussions of the Post-Glossators concerning the effect of a "pa.x facta" are in accord herewith. An offense was not regarded as a violation of the "pax" be- cause the offender had previously made an agreement with the injured party, but only if the act was done "animo vindicandi" with a view to reviving the controversy which had been put aside. Cf. e.g. linrlohifi, on "L. Verum est" n.3-.5D. "De furtis" ; thesameon § Causa D. "DepaMiis." ' Higher penalties were required for the injury or killing of an "in- genuus" than for the injury or killing of a serf ("litus") or "shiNe" ("servus"). According to the law of many of the i)i'oples, a higher \alue was placed upon a nol)le {cf. Grimm, "Deut.sche KechtsalttTthiimer ". jjp. 272 et -seq.) ; also upon one who was an associate of the king ("in truste dominiea esse"). According to some laws, a higher "wergeld" was paid for women (if they were capable of bearing children), but according to others and more generally a lesser "wergeld." Lesser amounts wen- exacted for injuries done by a person who was unfn>e. (Regard was given however to the master who was liable for the acts of his "servus" if he did not deliver him for vengeance or later for the infliction of pul)lic punishment.) Grimm, p. 058. - Thus according to the "Lex Sal.", XVII, 8, a larger satisfaction was G7 § 24] ROMAN AND GERMANIC ELEMENTS [Pakt I, TiTLE I ])iinisli Injuries to honor that were merely verbal.^ As to viola- tions of j)roperty, special consideration is given to the killing or injury of domestic animals, the destruction of houses by burning or in some other manner, mischief done to the fields, and theft. § 24. Little Consideration Given to the Element of Intention. — The primitive Germanic law has often been criticized on the ground that it paid attention only to the external injury and took no notice of the accompanying intention. It is a fact that it made no difference in the " compositio ", as a rule, whether the injury was intentional or unintentional, whether it was done with or without premeditation. The lord, for example, who instigated his serf (" litus ") to kill another,^ acting intentionally and deliberately, paid no more as a " compositio " than he who caused the death of another by a degree of negligence so slight that perhaps it was scarcely distinguishable from mere chance.- Pro- visions punishing attempts at a crime ^ are very few ; and the treatment of accessories to a crime * does not accord with the fundamental principles of a system of criminal law administered for public purposes.^ required for a blow with the fist than for a blow witha club. For injuries to the person, e.g. the cutting of the hair or beard against one's will, cf. "Lex Alam. Hloth." LX, n. 23, 24. As to pulling the beard, see the statutes of ^thelbirht Kap. 1, n. 23 ("feaxfang"), Schmid, "Ges. d. Angelsachsen" (2d ed.), pp. 6 & 7; " Ed. Roth.", 383. As to closing of a road, "Lex Sal.", XXXI ("De via lacina"). As to the improper or lewd grasping of a woman (even the simple touching of an arm or finger), there was imposed by the " Lex Sal.", XX, a penalty of 15 " solidi.'' Rape is mentioned often and as one of the graver crimes {cf. " Lex Sal.", XXV, l,"Ed. Roth.", 186). ' CJ. " Lex Sal.", XXX; reproach of cowardice: " Si quis alteram le- borem (leporem) si clamaverit." "Lex Sal.", XXX, .5: "Si quis alium arga per furorem clamaverit." (" Ed. Roth.", 381.) It was considered even more serious if one accused another of having cast away his shield in battle : Grimm, p. 644 et seq. 1 Cf. " Lex Sal." VIII (" Lex Fris.", I, 14). 2 " Lex Sax.", LTII : " Si arbor ab alio prsecisa easu quemlibet oppres- serit, conponatur multa pleno weregildo a quo arbor prseeisa est." lb., LIX : " Si ferrum manu elapsum hominem percusserit, ab eo cujus manum fugerit, conponatur excepta faida." 3 Cf. post, § 36, the theory of attempt. ^ Thus, as a rule, instigation was not treated as participation in crime : "Lex Fris.", 11, 2, "Ed. Rothari " 10, 11. However the " Lex Visig." {cf. e.g. VI, 5, 12) often punished the instigator the same as the actual perpetrator, and caused public punishment to be inflicted upon all the perpetrators of a homicide where there were more than one. 5 The "Lex Fris." (II, 2) is also interesting as to this matter. If one free man had instigated a second free man to kill a third, and he who did the lulling had not escaped, but the relatives of the slain were able to make a demand upon him, then the law did not concern itself with the instigation but regarded merely the manifest act of the actual perpe- trator. But the instigator must see to it how he may appease the rela- 68 Chapter II] PRIMITIVE GERMANIC CRIMINAL LAW [§ 24 Explanation of Lack of Consideration of Element of Intention. ■ — This paramount consideration paid to the objective side of crime should not, however, be taken merely as an evidence of the barbarity of the Germanic tribes, nor should it be absolutely assumed that the Germans had no conception of guilt in its ethical aspect. In the first place, custom here to a certain extent repre- sented the law. In the second place, a regard for the mental attitude and intention of the ofTender does appear from the char- acter of those crimes which were regarded as especially serious. When legal development is in its infancy, the need for fixed rules, easy to handle, is greater than the need for a complete substantive justice which leaves more room for the exercise of discretion (and also at the same time more room for arbitrary action). Attempt- ing to deal with individual cases at too early a stage of legal de- velopment is dangerous to freedom ; for it would require a very extensive judicial power. Thus,, under some circumstances, it is appropriate for the law, at a time when its administration of justice is as yet incomplete, to treat with equal leniency cases of either intentional or negligent injury, and also for it to presume ^ that an injury is due to negligence where we, upon a more exact examination, would consider it as merely a result of chance. Furthermore, it must be remembered that, where legal protection is inadequate, it is easily possible that there obtains for intentional injury the justification of self-redress and feud, or at least that such a justification exists in the minds of those who do the injury. There is no doubt that the customs made an early distinction be- tween intentional and unintentional injuries. While the injured party, in case of grave injuries, and especially in case of the killing of a relative, could originally choose between resorting to tives of the slain, — "nihil solvat, sed inimioitias propinquorum hominis oeeisi patiatur, donee quo modo potuerit ooriim amicitiam adipiscatur." The "Lex Sax." (XVIII) in the ease of intentional iKjmieide (by instiga- tion of a "servus") gave the relatives the ehoiee lM>tween "compositio" and "faida" (feud). If the homieide merely resulted from negligenee, a "compositio" was to be paid and aecepted, "exeepta faida." Cf. also " Ed. Roth." 75, 138 (147) showing a greater progress in legal development ; "cessante faida, quia nolendo fecit." " I liave endeavored to give a more exact statement of these ideas in my work, "Das Beweisurtheil des germanisclien Processes" (Hannover, 186G) especially pp. 41 el ffcq. Cf. also Dahti (" Westgothische Studien", 1874, p. 273), who says it is the characteristic of the German law of proof that it "primarily is founded upon presumptions." [On this subject, see the citations at the Ix^ginning of this chapter, which point out that the Germanic failure to distinguish radically bet\yeen intentional and unintentional harms is a characteristic of all primitive legal systems. — Ed.] 69 § 21] ROMAN AND GERMANIC ELEMENTS [Pakt I, Titlk I feud or demanding a " cornpositio "/ yet, where the act was unin- tentional,^ he should at least be satisfied with the " cornpositio." * First by custom, and later by law he was bound so to do, since a. feud was permissible only in cases of a public and intentional injury. ^° Secrecy. — The element of secrecy ^^ obtained an early promi- nence in the conception of crimes. By secrecy the offender fixed upon his act the character of unlawfulness, not capable of justification. Thus the satisfaction required for murder (" Mord "), i.e. a slaying followed by a concealment of the corpse,^- was especially severe. Moreover, the conception of theft, at the time of the early law-books, and even later, involved the idea of a secret carrying away.^'^ It was not the idea of the cowardice of 'As Dahn ("Fehdegang und Rechtsgang", pp. 34 et seq.) correctly shows, in the earliest period, the offender also could allow a feud to ensue and the penal provisions in the time of the Merovingians practically- signified nothing further than that, if both parties chose the method of court procedure, the court would award to the party injured the amount therein specified. But the knowledge of what in a certain event one might pay and the other might receive made easier the way for an ami- cable cornpromise. The narrative of Gregory of Tours {ante) shows that often only the Church by special sacrifices was able to make a settlement possible. * The provision that those of tender years were not obliged to pay "Friedensgeld" {i.e. peace money; cf. "Lex Sal.", XXIV, 5, "Si vero puer infra XII annos aliqua culpa eommittat, fretus ei nuUatenus re- quiratur") shows that, just as in the Norse law, those of tender years were not subjected to outlawry : Wilda, pp. 640 et seq. " The division of offenses into those which entail a breach of the peace and those lesser offenses which do not, although this can also be found in the Scandinavian sources (cf. Wilda, pp. 268 et seq.), belongs, however, to a later stage of development, which placed greater limits upon the province of breaches of the peace, i.e. cases which entailed vengeance and outlawTy. 10 Cf. e.g. "Lex Sax.", LIX. No "faida" (feud) could ensue "si ferrum manu elapsum hominem percusserit." " Cf. also Oseyihrilggen, "Der ethische Factor im altdeutschen Rechte" in his "Studien zur deutschen und schweizerischen Rechtsgeschichte" (1868), pp. 1-18. " Cf. e.g. "Lex Rib.", XV. "De homine mordrido. Si quis ingenuus Ribuarium interfecerit et eum cum ramo cooperuerit vel in puteo seu in quocumque libet loco celare voluerit quod dicitur mordridus, sexcentis solidis culpabilis judicetur" {i.e. tlireefold "Wergeid"). "Ed. Roth." 14 : "Si quis homicidium in absconso penetraverit . . . noningentos solidos conponat . . . ." According to "Lex Sax.", XVIII (ed. Merkel), a nine- fold "wergeld" was paid. " "Lex Sal.", XXXIII, 1 : "Si quis de diversis venationibus furtum fecerit el ceZai-en^ . . . ." "LexBajuv." (Textus I), IX, 9: " Si quis occw7/e in nocte vel die alienum cavallum aut bovem aut aliquod animal occiderit et negaverit et postea exinde probatus fuerit tanquam furtivura conponat." Cf. also post, § 35, under the theory of theft. Among the Lombards and Alamanni the penalty for theft was ninefold ("Ed. Roth.", 253 et seq.). Furthermore, at an early date the death penalty for many cases of theft is to be found in some 'folk-laws ("Lex Sax.", 'XXVIII-XXX, XXXII, 70 Chapter II] PRIMITIVE GERMANIC CRIMINAL LAW [§ 25 a secret act that induced this distinction. That would be assum- ing an artificial moral conception, and is not in accord with the ideals of a system of law which was contending;, first and foremost, with violence. This distinction was rather due to the fact that where the killing of a man or the taking away of a thing was public, the excuse was possible, in times when violent revenge and self-redress were prevalent, that the act was done in pursuance of a real or believed right ; whereas a secret act would in general not admit of this justification. § 2"). Influence of the Early Kings. — A strong kingly power, such as we find under the early jNIerovingians, which under the influence of Christian ideals ^ regards itself as the supreme guardian of justice, necessarily feels that offenses, even if primarily directed against individuals and not against the king or the community, are nevertheless violations of its own authority.^ As early as the Merovingians we find the enactment of the death penalty for robbery ^ and for theft,'* and the prohibition of private settlement in cases of theft.'' We find also that the death ])enalty was pre- scribed for certain cases of incestuous marriage,'' and that perjury was punished by the cutting off of a hand (the oft'ender, however, being able to save his hand by a payment of money)." These public punishments seem however to have not long continued in use ; although the kings, ^ especially the early Merovingians, often et seq.). There is also the provision that the thief should pay his "wer- peld" as a "fredus" ("Lex PMs." Ill, 1, 4). This also explains the un- limited right of vengeance in such cases, according to some passages. This right was supplanted by public punishment (see post). '"Regum officium est proprium facere judicium et justitiam" says Uicrnniimus c. 23 C. XXIII. qu. 5. Cyprianns in c. 40 of the same: "Rex debet furta cohibere, adulteria punire, impios de terra perdere, parrieidas et pejerantes vivere non sinere." Cf. also Jnrcke, "Hand- buch", I, pp. 21, 22 note. Waitz, II (2d ed.) pp. 155 et seq., IV, p. 447. "Cap. Aquisgran." e. .'52, 33 {Perlz, "Legg.", I, p. 95). 2 The indefinite conception of "fidelitas ", fidelity to the ruler and also to the law enacted and administered by him (to which conception it often appeared that no limits were set), undoubtedly furthered the develop- ment of the pulilic law. Cf. Waitz, III, p. 290. ' Cf. "Childeberti const." a.D. (ca.) 554 {Perlz, "Legg.", I, p. 1). ^ "Childeberti II et Chlotarii II Pactum" a.D. 593 n. 1 {Pcrtz, "Legg.", I, p. 3). ^ Cf. the "Pactum" (n. 3) cited in the preceding note. "Qui furtum vult celare et sine judice compositionem acceperit, latroni similis est." «"Childeberti I'l deer.", a. 590. n. 7. /"Childeberti II deer.", a. 590. n. 2 and 5. This latter provision points to a theological origin. * In the law of the Lombards there was, in certain cases, alhnvcd to her relatives a right to punish a woman criminally; but tlu^ criminal law of the king had a subsidiary jurisdi(!tion. Cf. "Ed. Roth." c. 221, also Pasquale dd Giudice, p. 23. 71 § 25] ROMAN AND GERMANIC ELEMENTS [Pakt I, Title I acted quite arbitrarily " in tlie enactment and infliction of punish- ments, and esj^ecially under the Carolingians certain humiliating^ penalties known as " harmiscara " were inflicted, along with the royal })an. Capitularies of the Carolingians. — In the Capitularies of the Carolingians, just as in the so-called " folk-laws ", ^° intentional homicide was again as a rule punished by the exaction of a " com- positio." ^^ Most of all, the royal power was interested in the suppression of feuds,^- and was well satisfied if the party injured would be content with merely a " compositio." It made use of outlawry to compel the parties to make an amicable settlement. We find that public punishment was inflicted only for ro})bery,^^ a crime dangerous to the community at large, for counterfeiting, false witness^* (falsification of documents), and perjury.^'' But even in these cases, the penalty of cutting off the hand (the mem- ber with whieh the crime had been committed) could be avoided by a payment of money.^ 16 9 Waitz, II, pp. 151 et seq. As to "harmiscara", cf. the same, IV", p. 445. 10 With the exception of the "Lex Visigothorum ", in which there was a significant union of the principles of the Roman and Germanic law. 11 In exceptional cases, the death penalty. "Cap. Aquisgran.'', a. 817, c. 1 {Pertz, "Legg." I, p. 210) : "Si quis aut ex levi causa aut sine causa hominem in ecclesia interfecerit, de vita conponat." (Cf. Waitz, IV, p. 231.) Furthermore, in other especially grave cases recourse might be had to the Constitution of Childebert, which had not been formally re- pealed. Thus it is stated in Cap. a.d. 779 ("Francicum") c. 8: "Ut homicidas aut ceteros reos, qui legibus mori debent, si ad ecclesiam con- fugeruit, non excusentur." Cf. also c. 8 of "Cap. Langob." Punishment of murder of relatives in Cap. a. 803 in "Lex Sal.", n. 5 {Pertz, "Leges", I, p. 113) : "Si quis de libertate sua fuerit interpellatus, et timens ne in servitutem cadat aliquem de propinquis suis, per quem se in servitium casurum timens oceiderit, id est patrem, matrem, patruelem, avunculum vel quemlibet hujusmodi propinquitatis personam, ipse qui hoc perpe- traverit, moriatur . . . ." 12 Thus King Rothari ("Ed. Roth." 74) stated that he had raised the amounts of the compositions for the purpose of thereby restraining feuds. Cf. also the memorial of the bishops to the king in tlie year 829 {Pertz, "Leges", I, p. 340). ""Cap.", a. 779 ("Francicum") c. 23; "Cap. Tic", a. 801 n. 4 {Pertz, "Leges", I, p. 84); According to the earlier Capitulary (c. 10) the death penalty was provided for theft in a church by means of burglary. As to the execution of the death penalty, cf. "Cap. Tic", a. 801 c. 4 {Pertz, p. 84); "Cap. Aquisgran.", 813 c 11: "Judices atque vicarii patibulos habeant." " "Cap. Hlotharii ", I, a. 832, e. 10 {Pertz, p. 361) : "manus ei ampute- tur." 1^ The writer of false documents originallj^ lost his thumb ; later, his right hand. 1« As to the ransom of the hand, see Waitz, IV, pp. 435, 436. Perjury was very prevalent under the later Carolingians. 72 ChaptF-R II] PRIMITIVE GERMANIC CRIMINAL LAW [§ 26 The Royal Ban. — Criminal law received an addition that was very important, displaying more of the characteristics of a public punishment, in the royal ban, " bannus regius." ^' Since crimes against the person of the king were regarded as crimes against the community itself, and were already being punished according to the Roman law of " lese majeste ",^^ the disobedience of a royal command also had the appearance of a direct offense or injury to the king. The guilty party was obliged to pay the king the sum of sixty " solidi." His failure to make this payment constituted a separate offense, entailing severer penalties. ^^ The penalty of the ban covered essentially those ofi'enses which we to-day would <-onsider within the domain of the police jurisdiction, the martial law, and the laws pertaining to the State treasury. However, its application was not limited to those matters. It also served the purpose of suppressing violent feuds ; in many cases it imposed a public punishment -" in addition to the " compositio " ; in contrast to the feud, it extended a legal protection to persons and things which previously had enjoyed no such protection but nevertheless seemed to require it.-^ § 2G. Other Forms of Criminal Punishment. — A certain penal power was also possessed by the husband o\ev his wife,^ and by the head of the household over the children under his control {i.e. in his house). ^Moreover, the master had, in respect to his slave,'- 1^ As to the royal ban, cf. especially PTaiiz, II (2d ed.), pp. 589 et seq.; Ill, pp. 271 et seq. 18 Cf. Wnitz, II, pp. 149, 150 and for the later period, VI, p. 472. '" For illustration of the acts punishable by the roj^al ban, cf. e.g. Cap. A.D. 811. "de exereitalibus ", c. 2-4 {Fcrtz, p. 169, 170). 2° One may compare the eight earl.y cases where the ban was used, mentioned in "Cap. de dorainico" {Perlz, pp. 34, 35). In cases two, three, and four, — "Qui injuste agit contra viduas", "De orfanis", "Contra pauperinos qui se ipsos defendere non possunt", feud and self- redress against the persons mentioned was prohibited. (Possibly they apply also against unjust complaints, because of the danger of trial by battle.) In cases five, six, and seven: "Qui raptum facit, hoc est qui femiuam ingonuam trahit contra vohintatom par(>ntum siiorum", "Qui incendium tacit infra jiatriain, lioc est qui inecndit alterius casam aut scuriani", "Qui hari/Juit facit, id est qui frangit alterius sepem aut por- tam aut casam cum virtute", acts which had previously been unlawful are subjected to public punishment. Case eight: "Qui in hoste non vadit" has reference to the military system. Case one: "Dishonoratio sanct«? eeelesijB" has to do with the protection of the legal institution of the Cliurch. Cf. "Cap. Saxon. Aquisgran." a. 797 pr. {Pertz, p. 75); Add. Vn. to "Lex Bajuv.", 1 (ed. Merkel, Pcrtz, " Legg.". III. p. 477). '-' Tluis the King took foreigners also under his protection. Cf. " Epist. Karoli M. ad Offam regem Marciorum " a. 796 (Walter, "Corp. J. Germ.", II, p. 125). ' Cf. Tacitus, "Germania", c. 19. 2 Jastrow, "Zur strafrechtlichen Stellung der Sclaven " ; Georg Meyer in 73 §26] ROMAN AND GERMANIC ELEMENTS [Pakt I, Title I a power of criminal punishment ^ which was unHmited ^ and doubt- less was often exercised with great severity. The folk-laws, moreover, provided a public i)unishment for a slave who wronged a third party ; this was either absolute, or modified ■' to suit the case where the master would not surrender the slave. ^ Influence of the Punishment of Slaves. — The fact that punish- ments of life and limb were often emjiloyed against slaves by the in- jured party or his relatives, although this was gradually prohibited by the royal authority, undoubtedly had great influence upon the conception of the nature of criminal law. This influence became apparent later when, in times of political confusion, the number of persons who were absolutely free was much lessened by the op- pression of officials and great magnates. Punishments which were daily inflicted upon slaves would soon come to be regarded as not absolutely improper for free men." This was furthered by the fact that there was little apparent difference between the condition of the oppressed freemen or serfs, and that of the slaves.* Effect of Loss of Freedom by Mass of the People. — The exor- " Zeitschrift für Rechtsgesehiehte, germaiiistisclie Abtheilung" (1881), p. 85 et seq. 3 Cf. Walter, II, § 388; Waitz, I, p. 183; Tacitus, "Germania", e. 25: "Verberare servum ac vincuUs et opere coercere rarum : oecidere solent, non disciplina et severitate, sed impetu et ira, nisi quod impune sit." Pasquale del Giudice, p. 24, 25, believes that, according to the Lombard law, the master exercised a despotism over his slaves that was subject to no legal restrictions. "An. Liutpr." (Neigebaur) 56: " Ipsi vero domini distringant et inquirant servos sicut ipsi amant" ("Cap. Pip" a. 802, c. 16, Pertz, "Leges", I, p. 105). The criminal power of the master was origi- nally merely an incident to his right of dealing with his slaves in any way he wished. * Cf. concerning the punishments used against those who were not free ; whipping, castration, cutting off of the hand, putting out of the eyes, capital punishment, — G. L. Von Maurer, "Geschichte der Fronhöfe in Deutsehland" (4 vols. 1862, 1863), I, p. .533, 534. In the beginning there was a sharp distinction between those who were not free and the "liti" {i.e. serfs), although the latter could also be subjected to punishments of life and limb, while free men were penalized with money {Maurer, p. 535). However, a master could in many cases ransom his slave. ^ "Lex Sal.", 12; "Lex Ribuar.", 58, 17 and 18; "Lex Alam. Hloth.", 38, 2. * The master who would neither assume or excuse the act of his slave surrendered the offender to the mercy of the parties injured, i.e. the kins- men of the slain. "Ed. Roth.", c. 152 : "sic tamen ut servus vel ancilla ad occidendum tradatur ut iiulla sit redemptio aut excusatio mortis ser\-i vel ancillae." Cf. Pasquale del Giudice, p. 29. ^ Whipping as a punishment of free men of lower rank is often men- tioned in the time of the Carolingians (cf. Waitz, IV. p. 436) ; e.g. if any- one without sufficient grounds appealed to the judgment of the king (came to the palace of the king). "Pippini cap." 7 {Pertz, p. 31) ("Si major persona fuerit, in regis arbitrio erit"). * Cf. the especially important development in these matters in the Anglo-Saxon law, in J astro w, pp. 43 et seq. 74 Chapter II] PRIMITIVE GERMAXIC CRIMIX.Ai LAW [§ 26 bitant amount of the damages was far-reaching in its effect. Thirty, forty or fifty " sohcli " were often exacted for injuries, and in cases of homicide these amounts were greatly exceeded. Thus the " wergeld " for killing a free Frank was two hundred " solidi." These sums were equivalent to the value of hundreds of cattle.^ He who could not pay these amounts was reduced to a condition of bondage for debt,^" a condition which often re- sulted in permanent sla^'ery (even if it were not such from the beginning). He also often became a victim of the unrestrained vengeance of the injured family. " Quod si raptor (one who carried away a woman) solutionem . . . unde soKere non habuerit, puellae parentibus adsignetur, ut faciendi de eo quod ipsi maluerint, habeant potestatem." ^^ This vengeance (slaying) had to be exercised publicly in order to be legally justifiable. Among the Franks, for example, the corpse was placed upon a " bargus ", a " clida ", a structure similar to a gallows.^- Thus the manner of putting to death did not difier so very much from the later execu- tions by the public authorities. This was especially the case when the executions were arranged and carried out with great dis- play by some individual possessed of great power and prominence. Thus private compensation often passed into public punishment. Furthermore, in those frequent cases in which unimportant freemen {e.g. those who did not possess others as serfs or slaves) were unable to pay the large amounts exacted as damages, some form of public punishment, e.g. corporal punishment or even muti- lation, would readily seem to be appropriate.^^ This was furthered by the fact that these punishments ^^ would appear less severe ^^ than being reduced to a condition of bondage for debt.'^ ä Waitz, II, p. 614. Cf. also Roth, "Geschichte d. Forst- u. Jagdwesens in Deutschland", 1879, pp. 21 et seq. '" Grimm, pp. 329 el seq. ""Lex Burg.", 12, 3. 12 Cf. Sohm, "Process der Lex Salica", pp. 178, 179, and Pasqualc del Giudice, p. 56. The "Lex Salica" protected the guilty, before the execu- tion took place, by a number of formalities calculated to induce the rela- tives to accept a paj^ment and to bring about a ransom by any third party who was willing. The famous title of "Lex Sal.", "De chreno cruda" has reference to this. " Dnhn, " Westgothische Studien", p. 1.56. 1^ Waitz, III, p. 26.5. 1* We also find tliat, in tlie criminal procedure, legal rules which earlier were only applied to the disadvantage of the unfavored classes were later applied to the privileged classes. Thus, according to the earlier Banibi-rg code, only a non-citizen could be restrained and imprisoned. In tho course of the 1400 s this distinction ceased to exist : Bruiincnmeister, " Die Quellen der Banibergensis" (1879), p. 44. '® The criminal law of the West (loths was to a certain extent typical 75 §26] ROMAN AND GERMANIC ELEMENTS [Part I, Title I Under the Carolingiansthe idea of public punishment was clearly apparent only in cases of offenses against the king. In such cases we find capital punishment, mutilation, and confiscation of prop- erty. But, as the great mass of the people lost more or less of their freedom and were reduced to a condition of poverty, this idea continued to gain in prominence. Moreover, it found a real ally in a power which knew but one distinction of rank — the Church. of the criminal law of the later Middle Ages, however with certain des- potic additions. Punishments which elsewhere were applied only to slaves, especially flogging, were (although many distinctions of rank were made) also applied largely to free men. The law of the West Goths sought a better conception of the subjective side of crime. But herein it often lapsed into provisions of a false moralizing or theological nature and also an erratic zeal for deterrence and punishment. It combined in a peculiar manner the Roman and German law. Cf. also Dahn, pp. 141 et seq. 76 TITLE II. THE MIDDLE AGES CHAPTER III. THE CHRISTIAN CHURCH'S LAW. CHAPTER IV. GERMANIC LAW IN THE LATER MID- DLE AGES. CHAPTER V. SCANDINAVIA AND SWITZERLAND IN THE LATER MIDDLE AGES. CHAPTER VI. FRANCE IN THE LATER MIDDLE AGES. 77 Chapter III THE CHRISTIAN CHURCH'S LAW § 27. Excommunication as the ; § 30. Foundation of the Criminal Law of the Church. Com- prehensive Nature of the "Law of Penance." Other § 3L Characteristics. Influence upon the Criminal Law of the State. § 28. The Disciplinary Law of the Church. Its Similarity to the Criminal Law of the State. § 32. § 29. Growth of Criminal Power of the Church. Privilege of Clergy. Union of the Criminal Laws of the Church and State under the Frankish Kings. Influence of Right of Asylum Possessed by the Church. Acquisition by Church of Temporal Jurisdiction. Variation in Extent of Juris- diction of the Church at Different Periods. "Poe- nse Medicinales" and "Poe- nas Vindicativse." Defects of Criminal Law of the Church. Heresy. Ideal of Divine Justice and the Mosaic Law. Ultimate Effect of the Criminal Law of the Church. § 27. Excoirununication as the Foundation of the Criminal Law of the Church. — Every association has tlie natural right to expel those of its members who will not conform to its general rules. ^ If denied this right, it is either forced to endure every 1 Concerning the matter contained in this chapter the following wTiters may be consulted: Eichhorn, "Grundsätze des Kirchenrechts" (2 vols. 1831) (cf. also E/f/f/fo?-«, "Deutsche Staats- und Rechtsgeschicht(>" (öth ed.). 1, §§ 10."), 10(), 108 et seq.) ; Du Boys, "Histoire du droit criminel des peuples anciens" (1845) ; Du Boys, "Histoire du droit criminel des peuplcs modernes"; Fauslin Helle, "Traite de l'instruction criminelle" (I, 1800, 2d ed.); Dove, "Untersuchungen über die Sendgerichte", in the "Zeit- schrift für deutsches Recht" (Vol. 19, pp. 321 et seq.) ; {cf. also Dore in the "Zeitsclu-iftfür Kirchenrecht," IV, pp. 1 et .'ieq., pp. 157 et seq., V (I860) pp. 1 et seq.) ; Eck, "De natura poenarum secundum jus canonicum" (I860) ; Nie. München, "Das kanonische Gerichtsverfahren und Strafrecht" (2 vols. 1865, 1866); Wnitz, "Deutsche Verfassungsgeschichte" (2d ed., Vols. Ill and IV); Sohm, in the '■Zeitschrift für Kircliensrecht " (1870), pp. 248 et seq.: Richter, " Lehrlnich des katholischen und evangelischen Kirchenrechts" (7th ed. prepared by Dove, 1874); Edgar Löning, "Geschichte d. deutschen Kirchenrechts" (Vols. 1 and 2, 1878); Edic. Katz, " P]in Gruiidriss des kanonischen Strafrechts" (1881) ; Von Holtzcn- dorff, in his "Handbuch des deutschen Strafrechts", I, pp. 40-50. [For 79 § 27] THE MIDDLE AGES [ParT I, TiTLE II variety of disorder, or else it must })e given the right oi direct coercion, or there must be placed at its disposal, for the compul- sory enforcement of its orders, the power of the State. The Christian Church, in its early periods, was constantly defending itself against the State. It tolerated the State only as a necessary evil. To avoid subjecting itself to further perse- cution, it forbade its adherents to litigate before the civil authori- ties.^ It is self-evident ^ that the only weapon and defense against refractory members possessed by such an organization was expul- sion. To this fact there may be attributed the essential char- acteristics of the criminal law of the Church.'* The oldest punishment of the Church is merely excommuni- cation, which when applied to the Clergy necessarily amounted to dismissal ; since expulsion from the association carried with it removal from offices held in the association. The association in question was, or appeared to be, of vital importance for the welfare or woe of the individual. Consequently, instead of per- mitting himself to be expelled from the association, he would prefer to subject himself voluntarily to certain disadvantages and sacrifices, if, in this way, he could undo the effects of his disobedi- ence. Moreover, the association, since its value depended upon its numbers, would avail itself of expulsion — at least final and permanent expulsion — only in extreme cases. Thus the oldest punishments of the Church came to consist of either a complete or a partial exclusion from the Church itself, or, in a milder form, only from the sacrament or from office. There were also other punishments, the so-called penance, the fasts, self-scourging and allowing oneself to be scourged, the wearing of a penitential gar- ment, pilgrimages, etc. Moreover the gifts of money and valu- ables, which later were given to good works and to the purposes of the Church, were originally voluntary gifts by which the giver additional and later literature, see : Aichner, "Compendium juris ecelesias- tiei" (Brixen, 1890); Bouix, "Traetatus de principiis juris canonici" (Paris, 1882); Brosij, " Kirchenreeht " (Berlin, 1890); Cavagyiis, "Institu- tiones juris publici ecclesiastiei " (Roma, 1912) ; Phillips, "Leln-buch des Kirchenrechts" (Regensburg, 1872-1889); Snnt, " Prielectiones juris canonici" (Regensburg, 1886); Albrecht, "Verbrechen und Strafen, als Seheidungsgrund nach evangelischen Kirchenrecht" (Berlin, 1903); L. Kahn, "Etude sur le delit et la peine en di'oit canon" (Paris, 1898); Silbernagl, "Lehrbuch des katholischen Kirchenrechts" (Berlin, 1913); Hinschius, "Kirchenrecht" (1869-1897). (Von Thot)]. ^N. T., I. Corinthians, vi, 1 and 2 el seq. Cf. Du Boys, "Histoire du dr. crim. des peuples anciens", pp. 610 et seq. 3 N. T., Matthew, xviii, 15-17. * Cf. also Edg. Löning, I, pp. 252 et seq. 80 Chapter 111] THE CHRISTIAN CHURCH's LAW [§ 27 forestalled his expulsion from the Church or secured his rein- statement. Comprehensive Nature of the Law "of Penance." Other Char- acteristics. — The duties of the Church theoretically embraced the entire life of the individual. Not only belief but also morals were subject to the authority of the Church ; under minute in- spection, every act or omission acquired a moral sisjnificance. Thus the criminal law of the Church was unlimited in its scope. And so it actually appeared in the penal provisions in use in the Middle Ages.^ Their rules extended to excesses of every char- acter, to passions such as greed, pride, envy, and even to unclean- lines'S. It was, however, only a system of moral law, a law aim- ing to bring about a reconciliation of the guilty with God and the Church, that assumed this wide jurisdiction. This law could be applied only in cases of grave and notorious offenses, or by virtue of the voluntary confession of the guilty ; which might be procured through the confessional. The characteristics, there- fore, of the so-called " law of penance ", the churchly penalties which were to ensure the repentance and reformation of the offender were : ßrst, a lack of definiteness in the acts which incurred these penalties, and definiteness only in that practically they were limited to the most important and frequent offenses, in any epoch or locality ; secondly, limitations due to the lack of an effective criminal procedure.^ Influence upon the Criminal Law of the State. — This portion of the criminal law of the Church, founded as it was directly upon morality, had only a limited influence upon the law of the State relative to crimes. In the first place, the different penalties applicable to acts also forbidden by the temporal law expressed the views of the Church as to the varying importance of these acts. In the next place, an act for which the Chnrch did not inflict a penalty at all was given the character (in the \iew of the Church) of not being generally reprehensible. These moral \aluations of acts, and especially the latter (by which certain acts were ^ Cj. Wasser schieben, "Die Bussordnungen der abendländischen Kirche nebst rochtsgeschiehtlichcr Kiuk-itung" (1851) ; "Poenitentiale Remense" in Kdlz, pp. 161-202 (from the 700s). ^ However, the Church, in the so-ealled "Sendgerielite" in the CaroHn- gian period, and also later, as a matter of fact exeiunled the priiieipU' of inflicting penanc(> only for those sins which were eitlier notorious or freely acknowledged. It bound by oath a number of the members of the con- gregation to lay information of sins or offenses which might be known to them, and it compelU'd tlii' accused either to free himself upon oath or to undergo penance or punishment; cf. Dove, "Untersuchungen", p. 356. 81 §28] THE MIDDLE AGES [PAUT I, TiTLi: J I ret clerieis") merely enforced anew a right which had long existed previously. The exponents of the Roman-Canon Law often denied (although on the whole ^vithout practical results) that the clergy were subjects of the rulers of the country, and denied therefore that they could commit the crime of "lese majeste" against them. In this light the clergy became in fact a State within the State. Cf. (later) Jul. Clarus, § "Laesae majestatis crimen", n. 7. 9 c. 20 (Pertz, p. 497). '"The mild punishment of the clergy (cf. the so-called "Const, paeis Dei" Heinrich IV, a.d. 1085, Pertz, "Leges", II, p. 58 : "Unde laici deeol- lentur, inde clerici degradentur ; unde laici detruncantur, inde clerici ab officio suspendantur et consensu laicorum crebris ieiuniis et verberibus usque ad satisfactionem affligantur ") ; the provisions exempting the clergy from the criminal jurisdiction of the civic authorities (in the "Sententia Henrici regis" a.d. 1234, Pertz, "Leges", II, p. 302); the fact that the tonsure was often conclusively' accepted as proof of being one of the clergy (cf. concerning this and concerning the claim of the Church to base its own jurisdiction hereon, c. 12 in Sexto. "Do sent, excomm.", 5, 11) ; and the fact that this jurisdictional exemption was frequently conferred (the bish- ops gladly conferred it since their power was thereby increased) — all these circumstances were the causes of numerous abuses. Chief among these abuses was the fact that many, in order to render themselves secure from civic punishment on some one occasion, recei\ed the tonsure and thereafter led worldly lives. On the other hand, even th(> I'opes were obliged to maintain the civic jurisdiction. Cf. c. 27 (Ilonorius 111) X. 5, 33. Also c/. " Schwab(>ns])i('ger' (L.) 225. R. rori Freising, " l^indwchts- buch ", c. 168: "Pfaffeiui dye nicht beschornn sein vnnd nicht pfätllieh gewantt an yn tragenn, vnd fürentt sy messer oder swert oder annder waflfenn oder vindet man sy in di>m frauenhaus oder in ainem leuthaus, dye sol man richten als ainem andernn layenn. ..." There is a somewhat different provision in R. von Frcising, "Stadtreehtsbuch ", c.lG. Concern- ing the later custom in Italy, cf. especially Dcciatjus, "Practica crini.", IV, c. 9 n. 106 : "Ut clericus possit a laico detineri et puniri sex requirun- tur. Primum quod non incedat in habitu et tonsura. Secundum quod 85 § 29] THE MIDDLE AGES [Pakt I, Title II dunt, inde clerici ecclesiasticum ^radiim amittunt." '^ More- over, as is well known, with the Frankish kings began a far-reach- ing union, or, one may even say, an amalgamation, of the temporal and spiritual powers. As a supplement ^" to the duty of the Church to care for the souls of men, the Church felt constrained, if the State did not perform its duty, to undertake in some matters a kind of temporal justice, e.g. illgotten gain must be returned, and compensation made for unlawful injury. Moreover, the kings realized the service rendered to the security of their rule by a religion which preached as its precept ^^ obedience to the authorities and especially to the king. They also perceived the extent to which the ready and compact organization of the Clergy, supported by historical tradition and remarkable for its training, could be of service to the State. The great men of the Empire, who, strong in their own considerable resources, could often suc- cessfully dispute the jurisdiction of the king, and need not fear revenge or punishment, were thus compellable to submit to a public punishment, often humiliating.^* And this was generally true, even though the Church was governed by motives of pru- dence in lending its services. The kings therefore accorded to the criminal power of the Church the most thoroughgoing support of the temporal courts and officers,^^ for the enforcement of every ingerat se enormibus. Tertium quod frequens fuerit in illis. Quartum quod in eis deprehendatur. Quintum quod fuerit ter monitus. Sextum quod post monitionem fuerit incorrigibiles " ! (Here at any rate there is a long tolerance of abuses.) Cf. also Gandinus, "De malef. Rubr. de poenis ", n. 34. 11 In England the so-called "benefit of clergy", which in the course of time was also extended to other persons {e.g. to those who were able to write), gradually led to a lessening of many of the punishments, until in later times it was abolished as incongruous, and at the same time superflu- ous because of the more lenient character of modern law. Cf. Stephen, "Hist, of the Crim. Law", pp. 4. .532. 12 Concerning the task of supplying the defects in the ci\al jxirisdiction, assumed by the Church, and its results, cf. for later period, especiallj' Tib. Decianus, "Practica erim.", IV, c. 10. " Waitz, III, p. 271. " Everyone, even the most prominent, were under the jurisdiction of the "Sendgerichte" of the Church. Dove, p. 355. " "Cap. Mant." (a.d. 781), c. 6 {Pertz, p. 41): " comite vel sculdaz adiutorium prseveat."' "Cap. Missorum" (a.d. 853), c. 10 {Pertz, p. 420) : "Ut missi nostri omnibus reipublicte ministeriis denuntient, ut comites vel reipublicfB ministri . . . quando episcopus eis notura fecerit et quos per excommunieationem episcopus addueere non potuerit, ipsi regia auctori- tate et potestate ad poenitentiam vel rationem atque satisfactionem addu- cant." In the compact entered into by the sons of Louis the Pious, Lothair, Louis, and Charles (a.d. 851, "Conventus apud Marsnam", II, c. 5, Pertz, "Leges", I, p. 408), the Bishops were granted international legal pri\aleges in the enforcement of penance. Thus arose the familiar maxim of the Middle Ages that the spiritual and temporal powers mutually 86 Chapter III] THE CHRISTIAN CHURCh's LAW [§ 29 penance. ^^ They even made use of the spiritual authorities for the better and more certain punishment of the persons hable to punishment under the civil laws,^" and also for the suppression of feuds and blood revenge. On the other hand, the bishops appear as officials of the king ; for the king claimed and exercised, in respect to their judgments (at least where the laity were inxolved) a supreme power of review. ^^ Thus by virtue of tiie coercive cooperation of the civil officials, the Church was able to inflict degrading punishments upon even the most prominent individuals, or, instead or in addition, to compel the payment of considerable sums for pious purposes. Unfree persons it could thus punish, even peremptorily and to the last extremity.'^ Consequently support each other, that the ci\nl judge can have recourse to the bann of the Church, and "vice versa" the spiritual tribunal, if it fails to accom- plish its purpose by excommunication, can resort to ci\il outlawry, and even that this punishment last mentioned atttaches itself ''ipso jure" to excommunication of long standing. Cf. '"Friederici II. imp. confoede- ratio cum principibus ecclesiastieis ". a. 0.1220 {Pertz, " Leges ", II, j). 236) : "Et quia gladius materialis constitutus est in subsidium gladii spiritualis, si excommunicatus in ea ultra sex septimanas perstitisse . . . nobis con- stiterit, nostra proseriptio subsequatur, non revocanda nisi prius excom- municatio revoeetur." The "Sachsenspiegel", III, G3, §2, however, denies direct effect to the ban of the Church ; cf. "Schwabenspiegel Vorw." In England there was a special warrant of arrest, the \\Tit "De excom- municato capiendo"; the excommunicated was placed in the county prison until he relieved himself of the excommunication ; cf. Folkard, "The Law of Libel and Slander" (London, 1876), 4th ed. p. 77. ^ Cf. the questions in Regino, "De syn. causis libr.", II, c. 2 (in the early 900 s). " "Cap. Karol. M. Paderb." (a.d. 785) "De partibus Saxoniae", c. 14 {Pertz, "Leges", I, p. 49; Merkel, "Lex Saxoiuim", p. 17) : "Si vero pro liis mortalibus criminibus latenter commissis aliquis sponle ad sacerdotem confugerit, et confessione data agere poenitcntiam voluerit, testimonio sacerdotis de morte excusetur" (tliis has to do with high treason and homicide connected with treason). "Cap. Aquisgran." (a.d. 813), c. 1 {Pertz, p. 188): "Ut episcopi circumeant parochias sibi comniissas et ibi inquirendi stadium habeant de incestu, de porricidiis, adulteriis, cenodoxiis et alia mala quae contraria sunt Deo . . . Et . . . emendandi curam habeant." Thus in the Aliddle Ages the gravest crimes were often punished only ^\^tll the penalties of the Church, pilgrimages, and erection of a cross. As to the criminal justice of the cities, in this regard, during tlie 1.300 s and 1400 s, cf. Von Maurer, "Geschichte der Städteverfassung in Deutschland", III, p. 633. •«"Karoli II. Ed. Pistense" (a.d. 869), c. 7 {Pertz, p. 510): "Ut si episcopi suis laieis injuste fecerint, et ipsi laici se ad nos inde redamaverint, nostriE regiae potestati secundum nostrum et suum ministerium ipsi arehiepiscopi et episcopi obediant, ut secundum sanctos canones et juxta leges quas ecciesia catholica probat et servat, et secundum capitida avi et patris nostri hoc emendare eurent." However, complaints of the clergy against their superiors were not entertained by the King; cf. Du Hoys, I, pp. 418 et seq. •' By the later Canonists, according to e. 10, Caus. 26, qu. 5, imprison- ment by the Church in exceptional cases was deemed applicable even against laymen.: Eichhorn, II, p. 80. 87 §30] THE MIDDLE AGES [Pakt I, Titlk II the Church exercised a criiiihial power that was secular as well as spiritual. It is thus easily explicable that the State recoj^nized the jurisdiction of the Church in respect to the so-called " delicta mixta " by omitting to punish these crimes if they had been already punished by the Church.^^ Moreover the laity, at least the lower and poorer classes, often had sufficient reason for gladly subjecting themselves to the milder criminal justice of the Church.'-^ § ',](). Influence of the Church's Right of Asylum. — The right of asylum ^ belonging to the Church was yet a third means by which its criminal jurisdiction was indirectly extended. The hard- pressed criminal who was able to reach a church ^ was safe, at least for the time being.'^ It rested with the discretion of the spiritual 20 Prevention of crime appears also to have been undertaken by both civic and spiritual powers ; cf. e. 2 in Sexto "De exc", 2, 12. Katz, pp. 40 et seq. denies the so-called " delicta mixti fori." This intermediate field of jurisdiction was the necessary result of the new life acquired by the State and Church under the Carolingians. e. 8 X, "De foro competente", 2, 2 is also of interest. However, the spiritual judge was able to inflict only the punishments of the Church. But it is not to be inferred from this that the punishments of the Church might not be supplanted by the punishments of the State. 2' In the statutes of the cities it was sought later to limit the excessive subordination of the citizen to the spiritual jurisdiction. Thus, in the law of the city of Augsburg (a.d. 1276, ed. Meyer), Art. 22, it is stated : "Ez sol ein burger antworten in dem capitel umbe vier dinch umbe niht anders . . . ." Any one prosecuting a cause other than one of these four before the spiritual court was obliged to pay to the people a money fine. Cf. also "Sächsisches Weichbild", Art. 25. 1 Concerning the history of the right of asylum, cf. Richter, "Kirchen- recht" (Dove), § 212. It was completely abolished in Germany during the 1700s, and in Protestant regions at an earlier date. Decianus, "Practica crim.", VI, 31, remarks: "Hoc vero cum lacrymis memorandum non silebo, quod apud Germanos Lutherana haeresi infectos nuUus habetur locus sacer ... et ideo nullus in his (templis) tutus est, quum ecclesias, id est templa habeant loco platearum"; Löning, I, pp. 317 et seq., II, pp. 536 et seq. The right of asylum had its origin under the Clu-istian emper- ors of Rome, but it was only a sort of foothold for intercession. In the Frankish empire, where criminal prosecution was generally a private pro- ceeding, the right of asylum attained greater importance. As the idea lying at the basis of the right of asylum (which was also important in heathen times and among the Jews) it may be stated that, so far as the right of asylum has encroached upon the public procedure, the state criminal power, when it lacked confidence in itself (occasionally in ancient times the death penalty was inflicted in such a manner that it might be possible for the condemned to be saved by a special intervention of fate or the gods), obtained from the deity a ratification of its punishments, or if the condemned came in touch with the deity the punishment was forth- with mitigated or abandoned (as in Rome when the condemned on his way to the place of execution met a Vestal Virgin). * "Schwabenspiegel", 329 {Lassberg), regards as already within the peace of the church those who have grasped the ring on the door of the church, and also attributed the right of asylum to the sacred courtyards of the church. 3 Cf. c. 1, 2, 3, Can. 23, qu. 5, and "Lex Bajuv." 1, 7 (ed. Merkel T. 1) : "Si quis culpabihs . . . confugium ad ecclesiam fecerit, nullus eum \-im 88 Chapter III] THE CHRISTIAN CHURCH's LAW [§ 30 power whether or not to give him up ; and he was given up only after a prehminary mediation between the pursuer and the crimi- nal. The latter, if the spiritual authorities deemed him guilty, was obliged to bind himself, in consideration of the former's fore- going all claim for slaying or mutilation,'* to furnish satisfaction and damages.^ " Ecclesia abhorret a sanguine." Thus the Church, in a certain sense, performed the function of an arl^itrator between private revenge or the public criminal authority, on one hand, and the criminal on the other. A substantial restriction was hereby placed upon private vengeance, and the State's criminal power was rendered more lenient. The latter, to be sure, was thus often weakened and hindered, to the sacrifice of the public safety.^ Acquisition by Church of Temporal Jurisdiction. — Yet another indirect influence of the Church upon criminal law deserves con- sideration. In the ^Middle Ages, the Church came into possession of a great number of the civic tribunals. Thus it was enabled to administer justice (i.e. civic justice) through the civic officials and in accordance with the civil methods. It was only natural that civic officials in the employment of the Church should yield to the principles of the Church and its criminal law." Moreover, abstrahere ausus sit, postquam januam eeclesise intraverit, donee inter- pellat presbyterium ecclesiae vel episcopum. Si presbyter repripsentare ausus fuerit et si talis culpa est, ut dignus sit discipliiia cum consilio sacerdotis hoc faeiat, quare ad eeclesiam confugiuiu fecit. Nulla sit culpa tarn gravis ut ^•ita non coneedatur propter tiinorem Dei et reveren- tiam sanctorum, quia Dominus dixit: Qui dimiserit, dimittetur ei ; qui non dimiserit nee ei demittetur." Cf. eoncerning the later treatment of the right of asylum, the (exceedingly canonistic) description of Tiberius Decinnus, "Practica er.", VI, c. 25 el seq. * The right of asylum of the Church contributed much towards the substitution of composition for private vengeance. The Icings, looking at the matter from their own point of view, had sufficient reason to sanc- tion this right of asylum and to extend to it their protection: Pardcssus, "Loi Salique", p. 656. ^ The ban of the Church was the penalty attached to a violation of the right of asj'lum. However, in those times of violence there were frequent violations of the right of asylum, as also of the oath whereby the pursuer bound himself to be satisfied with the penalties levied by the Cluirch. •^ Abuses of the right of asylum in the case of grave crimes must have soon arisen. Cf. Cap. a.». 779 (Francicum), c. 8 {Pcriz, "Leges", 1, p. 3(5). Necessities of life were not to he furnished the criminal ("homici- das aut ceteros qui legibus mori debent" runs the passage), and he could also be compelled by hunger to leave the place of refuge. Cf. also " Lex Sax.", XXVI II (ed. Merkel) : "Capitis damnatus nusquam habeat paeem. Si in eeclesiam confugerit, reddatur." Con(;erning such exceptions (mur- der and dishonorable offenses) in other free States at a later period, see von Maurer, "Geschichte der Fronhöfe in Deutschland", IV, p. 2.50. ' For example, fundamental rules and customs of which the Church distinctly disapproved could hardly maintain themselv(>s in such courts. For a ease of this kind, cf. c. 2 X. " Di' delictis puerorum", ä, 23; au abbot acting as judge of a court iutlicted a money tine upon a boy not 89 § 31] THE MIDDLE AGES [Part I, Title II the Church must have been at tliis period extremely popular, as several circumstances allow us to infer. In a time when the criminal law of the State was weak and uncertain, the Church had at its disposal its own system of law, both comprehensive and powerful because of the learning bestowed upon its preparation. The Church was in exclusive possession of a higher state of culture. Furthermore it passed judgment (at least as a general rule) with no discrimination of person, and from the beginning regarded as its own the cause of the helpless and poor. Finally, in short, its justice was contrasted with that of the civic authorities, often exercised in the interest of petty fiscal exactions anrl marked by frequent oppression of the poor and humble. § 31. Variation in Extent of the Church's Jurisdiction at Dif- ferent Periods. — These circumstances readily explain the varia- tion in the jurisdiction of the Church at different periods. To punish crime was a concern of the Church ; since all true crimes are also violations of morality and imperil the soul of the criminal, it was not difficult to discover that the Church also was concerned in punishing many crimes which were already punished by the State, and to lay a basis for using the criminal power of the Church. Thus there were included, under " delicta mixta " or " mixti fori ", offenses against morality in the narrower sense, especially adultery, sacrilege, sorcery, and usury, in so far as Christians were guilty of the same. Blasphemy, forgery of papal documents, per- jury, and breach of contract were also included.^ This also readily explains the frequent controversies with the civic authorities,^ the disputes among the learned jurists, and their subtle distinctions.^ considered old enough to be responsible, "secundum eonsuetudinem illius terrae"; the Pope forbade the enforcement "pro temporal! poena." Aug. Aretinus, "De malef. Rubr. Comparuerunt dicti inquisiti", n. 14, notes the different treatment of the testimony of women in "terris eeclesiae subjeetis" and in "terris imperii." At any rate, in "terris imperii" the "jus canonicum" did not "de jure" have precedence of the "jus civile." Cjf. "Bajardi Addit. in Jul. Clarum" § "Raptus", n. .38. 1 " Ratione pacti et voti fracti, item ratione juramenti vel fidei dationis" say the statutes of the Würzburg Synod 1407, 1446 a.D., has the Church her jurisdiction. Cf. the interesting references in Sickel, "Die Bestrafung des Vertragsbruches u. analoger Rechtsverletzen in Deutschland" (Halle, 187G), pp. 46 et seq., especially 49-51. 2 In some territories (those of princes who were clericals) the Church also had before its tribimals complaints and accusations of the Clergy against laymen: "Pri\aleg. Carl IV für Würzburg", "Monum. Boica", XLI, pp. 307, 308. This reads : " Super publicis ac privatis injuriis " the Clergy and the judges of the tribunals of the Church may bring charges against laymen "coram judice eeclesiastico", "quemadmodum etiam in plerisque partibus Germanife ac praecipue in provincia Moguntina." ^ Cf. Tib. Decianus, "Tract, crim. ", IV, 27, 6. 90 Chapter III] THE CHRISTIAN CHURCH's LAW [§ 31 " Poenae Medicinales " and " Poenae Vindicativse." — The funda- mental ideal of the punishment of the Church was the restora- tion of the guilty to the Church and to obedience to God. Hence the punishments of the Church were chiefly " poense medi- cinales ", — punishments calculated to cure the guilty of his faults. For this purpose, use was especially made of excommunication in both of its grades* (" excommunicatio major" and "minor"), the interdict,'^ and, in the case of priests, suspension. But the Church was not barred from using other punishments, and its doctrine mentions also " poenge vindicativse " inflicted by the Church. This distinction, however, had little real influence upon the actual operation of the criminal law of the Church. Those penal- ties which were designated as " medicinales " were also used by the Church as " poense vindicativse." ^ Moreover, the eft'ect of many of the " poense medicinales " was exactly the same as that of punishment inflicted by the civic authorities. This appears from the fact that, in the earlier periods, public penance of a humiliating nature, and later, severe fines and imprisonment, were inflicted. The penalty of imprisonment for life, though theoretically (as maintained by the Church) justified by the enormity of the offense, was a matter of fact substantially equiva- lent to the extermination of the offender. Defects of Criminal Law of the Church. — Thus, one defect of the system lay in the uncertainty of its scope, due to the fact that the Church did not confine itself to the disciplinary offenses of the clergy nor to voluntary penances or ultimate expulsion. But this was not the only defect in the character of the Church's criminal law. Inevitably there was also a fluctuation between the punishment of external misdeeds and that of mere immorality or the mere possession of an opinion not in accord with the views * Cap. 20, X. "De V.", p. 5, 40 (Innocent Til). ^ The interdict was nothing other than a modified application of excom- munication to all places and rej^ions. « Ecli, "De natura poenarum secundum jus canonicum" (IStiO), p. 30. Theoretically these two varieties of punishment are very different. The "poena medicinte" has reg:ard only for the intention which is deenu-d equivalent to the manifested act ("in maleficiis voluntas pro opere reputa- tur" is ^\Titten before C. 2F>, D. I. "De po^nitentia", and in C. 29, ul., it says: "Si propterea non facis furtum quia times, ne \idearis, intus fecisti . . . furti teneris, et (si) nihil tulisti "), and repentenace may at least remove a portion of the culpability. Tlie " pcpme vindicativie" luive as their purpose the separation of the guilty, as a corrupt part of the body, from the Church, c. 18, C. XXIV, qu. 3, or else have the purpose of deterring others, c. 1, X, 5, 26. 91 § 32] THE MIDDLE AGES [Paut I, Titlk II of the Church ; and also a fluctuation between a concern for real penitence and a satisfaction with its external manifestations. The danger to its criminal law from this source is apparent in its older penal provisions which, in analogy to the early folk-laws, contained an exact calculation of penalties for each individual sin or transgression. And it is even more evident in the later system of indulgences, which permitted forgiveness of sins to be purchased outright by the payment of money. Thus the history of the criminal law of the Church offers an illustration of the truth that only by adherence to an objective or outward standard can a steady development of criminal law be obtained. By taking the external standard, it is possible to reach gradually a juster valuation of inward or personal guilt. If we are to hope to detect inward guilt by human agencies, we must resort exclusively to external manifestations. Apart from the fact that, under a system of criminal law based on that theory, the inward guilt of malice and passion, of ambition and greed, are sure to receive their just deserts, there is, at any rate, no other means available to attain the end desired. Exclusive regard for the moral element leads endlessly nowhere. § 32. Heresy. — The crime of heresy was also based upon a theoretical and abstract standard of guilt. How far the error involved in heresy is to be attributed to per- sonal guilt is a problem which never has been and never will be solved. The Church, however, believed that it could solve this problem. It proclaimed as guilty those who held views contrary to its own and lapsed from the faith, if they could not be con- vinced of their error.^ This attitude the Church adopted at a very early period. Even in the days of Rome,^ it demanded and ob- tained from the State the most severe and terrible punishments of the State for those guilty of this offense.^ Once it had thus 1 Tib. Decianus, "Practica crim.", V, 8, n. 2 : "Vere dicitur hseretieus qui errat circa fidem Christianum per intellectum et pertinaciter haerefc errori per voluntatem." ^ L. 1, C. J., 1, 5 "De hsereticis" : "Haeretieos non solum his pri\dle- giis aUenos esse volumus, sed adversis muneribus constringi et subjici" (Constantine, a.d. 326). L. 4, § 1, C. eod. (Theodosius, a.d. 407) : "Ac primum quidem volumus esse publicum crimen quia quod in religionem divinam committitur, in omnium fertur injuriam." The confiscation of property ordered by the last mentioned "constitutio" made the punish- ment of this offense by the secular authorities one to be feared. Cf. the later decrees, relating to heresv, of the German emperors. Const. Frie- derici II, a.d. 1220, § 6 (Statuimus), Pertz, "Leges," II, p. 244; Henrici reg. const., a.d. 1232, Pertz, p. 287. ' The heretic was not formally sentenced to death by the spiritual 92 Chapter 111] THE CHRISTIAN CHURCH'ö LAW [§32 induced the State to take such measures, it found later no diffi- culty, when its interests seemed to demand, in demonstrating? its sympathy with harsh penalties in other cases. To this attitude the Church steadfastly adhered. And this was in spite of the fact that (as already remarked) it had in the beginning announced its abhorrence of punishments of life or blood, and that it also later exemplified this principle in the exercise of its right of asylum. Ideal of Divine Justice and the Mosaic Law. — Naturally, then, the belief arose that, since all these punishments were not opposed by the Church and were indeed favored, their infliction was in furtherance of divine justice. i.\nd here, significantly, the Mosaic criminal law, which frequently is based on the " talio ", or rule of like for like, began to be regarded under the influence of the Church as a direct divine command. It was looked upon, to be sure, as directed to the secular authorities and not to the Church itself ; consequently, justice administered by the secular authorities was relieved of every doubt as to its own infallibility. Thus is explained that fanatical tenacity with which, even after the Reformation, criminal justice allov/ed itself to revel in blood and authorities. But the death of one declared guilty of the "phaffen" fol- lowed as a matter of course (c/. c. 18, in VI. "De liipret.", 5. 2). Theoret- ically the secular jurists maintained the right of the civic judge to make an investigation of the verdict of the spiritual tribunal (r/. e.g. Bariolns in "Leg. Div. Hadrianus", [7] n. 3, D. "De custodia reorum", 48, 3) ; but as a matter of practice this was not done, or else it was expressly rejected in the statutes (cf. "Augsburger Stadtr." 127(5, ed. Meyer p. 106, Art. 32; "Sch\va])enspiegel", ed. Lassberg, 313, "Bambergensis", 130: "Item wer durch den ordentlichen geystlichen richter für einen Ketzer erkant und dafür dem weltlichen Richter geantwort wurde, der soll mit dein ft-wer \üm leben zmn todt gestrafft weden"). Cf. also Osenbrüggen, "Das Alaman- nische Strafrecht", p. 375. Also Clnrus, § fin., qu. 9(5, n. 7, denies that the civic judge has the right of examination, althougli the judgi's had usurped this right in certain cases, so that recently Philip II at the Senate of Milan had made unconditional execution of the sentence a duty. — There was a direct coercion to remain in the Church. If a Jew once converted to Christianity again became a Jew, he was put to death by burning. " Sehwa- benspiegel" (ed. Lassberg), 262. — The extent to which the Churcli lost all sense of justice towards real or alleged heresy is shown e.g. in thecollcc- tion of extravagant principles of persecidion (for one should not call them principles of law) found in Tib. Decianus, V, c. 20 (" Ihvresis s]HH*ialia"). The heretic e.g. lost "ijxso jure" the ownership of all his proptTty, his descendants to the second degree had no legal rights, he became "infamis." His sons lost their fiefs. Alere "cogitatio" was subject to punishment. There were also rules of procedure that were monstrosities. — Even apart from cases of heresy, the Popes at times favored provisions that were clearly unjust. T/. e.g. c 4 in VI, " D(> pciMiis", 5. <), directed against those who injure a cardinal, and (in analogy to the statutes of the Roman despots also) visiting the penalties even upon sons and grand.sons. The signihcunt analogy of heresy to "löse raajeste" appears ia L. 4, § 4, c. 1, 5 (by Theodosius). 93 § 32] THE MIDDLE AGES [PaRT I, TiTLE II grewsome penalties, with an almost univ'crsal approval. Amidst an increasing progress and culture, the law remained, till well into the ITOOs, the bulwark, as it were, of cruelty and barbarity. So, too, the influence of the Church is responsible for that dominant aim (often extravagant) in later practice and legislation to make men moral, resulting in measures of moral police grossly over- stepping the appropriate limitations of State interference. The idea of an external power, like the Church, intruding upon the moral life of the individual, observing, protecting, and punishing, had become familiar. What had earlier been done by the Church became later the province of the police powder of the city or State.* Thus the Church laid the foundations for the later omnipotence of the State. Ultimate Effect of the Criminal Law of the Church. — A long^ period was to elapse, and arduous effort was to be expended, before the criminal law freed itself from these untoward effect» of the Church's influence. The weakness of the medieval State made their long continuance inevitable. This weakness itself had its origin (paradoxically enough) in the rugged natural strength of the Germanic race and its almost unlimited sense of personal individual liberty. This trait vested the individual with a liberty to barter away his liberty, and gave to the king the freedom to dismember the State, and parcel it out piece by piece. In other words, this w^eakness was due to the subordination of general public law and order to subjective or personal right.^ Neverthe- less, one permanent service to the Germanic peoples was rendered ; for the Church represented and emphatically upheld the idea of an absolute objective law and order superior to all individual rights. In one aspect, this signified the equality of all before the law. In another aspect, it signified a better valuation of the subjective side of crime, of individual guilt, — the idea of reformation, implying that the punishment should benefit the oft'ender.^ To the Church, in the main, we owe our thanks for these contributions, — ele- ments which, although only secondary, are nevertheless very important. * Thus many acts punished by the Church later became punishable by the police authorities, e.g. unchastity. ^ In the German kingdom, which at times (e.g. under Charles the Great) was so powerful, the personal (subjective) element was very prominent (c/. Waitz, "Verfassungsgeschichte", IV, p. 427. «c. 63, 84, D. 1 "De poenitentia." 94 Chapter IV MEDIEVAL GERMANIC LAW § 33. Result of the Degradation of the Mass of the People. § 34. F'euds and Self-Redress. The "Landfrieden." § 35. Changes in the Theory of Specific Crimes. § 30. Equality Before the Law. Moralizing Tendencies. § 37. Effect of Changes in the Law of Proof. Arbitrary Character of the Law. § 38. Confusion Resulting from the Term "Frieden." Re- version to Primitive Con- ceptions. Severity of the Law. Application of the Mosaic Law. Cruelty of the Punishments. Fail- ure of the Law. § 39. Incidental Circumstances Having a Demorahzing Influence. Private Set- tlement in Cases of Crime. The "Grace" of the RuliTS. Other Peculiar Customs. Influence of Ac- cidental Circumstances. Uncertainty of the Court Procedure. § 33. Result of the Degradation of the Mass of the People. — Even in that stormy and restless periocP usliercd in with the 1 In regard to the matter contained in this chapter the following writers may be consulted: Henke, "Grundriss einer Geschichte des deutschen peinlichen Rechts" (2 vols. 1809), Vol. I, pp. 109 et .^eq.: Jarcke, "Hand- buch des deutschen Strafrechts", Vol. 1(1827), pp. 21 et seq.; Grimin. "Deutsehe Rechtsalterthümer " (2d ed. 1804); Douandt, "Geschichte des Bremer Stadtrechts" (2 parts, 1830); Warnkönig, "Flandrische Staats- und Rechtsgeschichte"; Ronshirt, "Geschichte und System des deutschen Strafrechts" (3 vols. 1838-1839); Warnköiiitj and L. Stein, " Französische Staats- und Rechtsgeschiclite ", Vol. 3, pp. 1(18 d seq., 272 et seq., 489 et seq.; Von Wächter, "Abhandlungen a. d. Slrafrecht"; Walter, "Deutsehe Rechtsgeschiclite" (2d ed. 1857), II, §§ 701 et seq.; IFai^z, " Deutsehe Verfassungsgescliicli1(> " (3d ed. 1880), Vols. lU-VI; Hälschner, "Geschichte des Brandi'nl)urgis(^li-Preussisciien Strafrechts" (1855); Ä'ö.s^^iH, " Geschichte des deutschen Strafrechts im Umriss". pp. 114-207; Kiuckhohn, " Gescliichte des Gottesfriedens" (1857); John, " Das Strafrecht inNorddcutschhind zur Zeit der Rechtsbüclier ", I (1858) ; Dti Bnijs, "Histoire du droit criniinel des jx'uph's modernes" (4 vols., Paris, 1854 et seq.) ; Oseiihrün "< (Part II, 18()0, 18()4); Osenltrüiigen, "Studien zur deutsehen und schweizerischen Rechtsgescliichti'" (181)8); (L L. Von Maurer, " Geschichte der Fronhöf(> in Deutschland " (4 vols., 18(52. 18()3) ; Von Maurer, " Geschichte der Städteverfassung in Deutschland " (4 vols., 95 §33] THE MIDDLE AGES [Part I, Title II reign of the last of the Carohiigians and often clescriberl as the period of " club law ", those foundations of a public criminal law which were previously laid in Germany and defended by the power and ability of the earlier Carolingians were not completely de- stroyed. However, they were buried, as it were, beneath the sur- face. It must be here remembered that a large part of the people had been reduced to the position of bondsmen and serfs. This did not, indeed, take place in the manner and sense which one ordinarily ascribes to a change of status.^ At any rate it must not be assumed that in the subjection of serfs and bondsmen under a feudal lord, criminal law became substantially changed from what it had been under the folk-laws and the royal statutes. These latter had also to do w4th the crimes of those who were not free. Nothing is more misleading than the conception that either in Germany or France, and especially in the former, the criminal law (except in those primitive times when some of those who were not free were legally treated as chattels) was one in which the rank of the accused made a fundamental difference.^ The same forms of procedure obtain and substantially the same legal principles, and it is only a non-legal circumstance that a man who is not free and therefore possesses nothing, or at any rate is unable to pay the fine, is peremptorily subjected to a punishment of life or limb, which a free man possessed of property would avoid. Even where later in the records of the village communities we find penal rules of an autonomous nature, the distinction be- tween the free and the unfree is not of especial importance.^ It 1869-1871); Vo7i Holtzendorff, "Handbuch des deutschen Strafrechts", I, pp. 57-65; Frensdorff, Introduction to O. Francke, " Verfestungsbuch der Stadt Stralsund" (1875); R. Lönitig, "Der Vertragsbruch im deut- schen Recht" (1876); Allfeld, "Die Entwicklung des Begriffs von Mord bis zur Carolina" (1877); Von Wächter, "Beilagen zu Vorlesungen über das deutschen Strafrecht", pp. 84-100; Frnuenstädt, "Blutrache und Todtschlagsühne im deutsehen Mittelalter" (1881). [Later writers are: Steffenhngen, " Entwicklung der Landrechtsglosse des Sachenspiegels " (Wien, 1887) ; Caspar, "Darstellung des strafrechtlichen Inhaltes des Schwabenspiegels" (Berlin, 1892).] 2 Such an over-estimation of the legal effect of change of status can be found e.g. in Köstlin, pp. 156 et seq. 3 Cf. also Du Boys, II, p. 230. For example, the "Constitutio Fried- erici I." "Contra incendiarios " applied to persons of every rank (Pertz, "Mon. Legg." p. 183). In France, at a later date, a nobleman was com- pelled to pay a higher money fine than an ordinary citizen ("roturier") for the same act, — "Noblesse oblige." * It is not maintained, however, that the old idea that a free man could lose his life or limb only for crimes directed against the community was without an3f actual influence. In the laws of those towns whose citizens 96 Chapter IV] MEDIEVAL GERMANIC LAW [§ S4 is only a non-legal circumstance that, owing to the very dependent position of the serfs, the verdict of the lord or his officials, the " Schöffen " (who, as in the local courts of the counts, were the parties rendering judgment), was often biased by arbitrary mo- tives. And, finally, it is a non-legal circumstance, if one considers it closely, that the lords and princes were at the most obliged only to pay a money fine for a breach of the peace of the land, while for other persons this entailed criminal punishment. Since the lord was possessed of the power of acting as magistrate and was the head of a smaller State within the greater State, i.e. the empire, it was not difficult for him to commit any oft'ense he might wish under the guise of a feud or even in the exercise of magisterial power. It is therefore incorrect (as e.g. Köstlin has done) to maintain, that in the case of those of high rank, criminal law legally lost its true character and became merely a feudal criminal law. Sentences to death of persons of the rank of count or prince are quite frequent in German history, although in the post-Carolin- gian period such sentences could be executed with difficulty. There can however be no question but that harm resulted from the splitting up of the Empire into a countless number of small l)rincipalities. In a certain sense, use was still made of the idea of ])ublic punishment. The injury or slaying of a person subject to one's own feudal lord could also be conceived as the doing of an injury to the lord, the infliction upon him of a loss, and also as an injury to a higher power. This in part explains those confisca- tions of property to the lord's advantage which were so frequent during this period and which are also found among the charters of the cities. § 34. Feuds and Self- Redress. — The most important hindrance to the development as well as to the administration of criminal law lay in the difficulty of distinguishing a crime from a per- missible form of self-defense or self-redress. It was an ancient right that, in case the courts refused or were unable to give assist- ance, a free man might procure redress by the exercise of his own strength.^ This riglit now became especially the privilege t)f all were vassals of some feudal lord, punishments of life and linil) were in wider use than where the population was made up of a grouj) of free men. ' Here I agree with the eonclusions of von Wächter ("Allhandlungen", p. 2.51). II(> who raised a feud staked everything on his sword, and if necessary the other party eould rely on his own sword. There is notliing to indicate that it was the duty of tin- individual against whom a feud was raised to offer himself witli tied hands as a defenseless victim for vengeance. Such an obligation would be nugatory, 97 §34] THE MIDDLE AGES [Part I, Title 1 1 those belonging to the knighthood. In those times when the power of the courts was feeble, it was difficult to enforce an abso- lute denial of this right. It was natural that under the pretext of self-redress — or self-defense against another's self-redress, since this also was not amenable to punishment - — violent crimes were committed. This was furthered by the fact that, among the Germanic peoples, it was a widespread custom to ignore the courts and simply proclaim a feud against the indi\idual against whom one believed he had a complaint. In the exercise of this feud, acts of robbery, waylaying, capture, killing, and the destruction of property by fire seem to have been permissible. The " Landfrieden." — Those statutes ^ known as " Land- frieden " '* (regional peace-compacts) were enacted for the empire by the kings and emperors, and for the provinces by the princes with the approbation of the imperial officials and (where appro- priate) of the prominent persons of the province. They had for their primary purpose the settlement beyond all doubt of the distinction between crimes and permissible feuds.^ Certain methods were prescribed for the carrying on of feuds (formal 2 Cf. Warnkönig, III, 1, pp. 160 el seq. 3 Concerning other criminal statutes of the 1000 s and 1100 s, cf. Stobbe, I, p. 475. Henry II, in 1019, enacted a statute dealing with "parrici- dium" and murder. Henry III, in 1054, enacted for Lombardy a statute concerning poisoning. Frederick II and his successor enacted numerous statutes against heresy. Henry VII enacted in Italy a statute concerning "lese majeste." ■* The "Landfrieden" contained not only provisions concerning the breach of the peace, but also criminal rules of any nature whatsoever, such as proof (especially by oath), duelling, and police regulations. They covered the entire kingdom, or a great part of it, and applied to all in- habitants and all classes in so far as the degree and kind was not expressly fixed in accordance with the rank of the offender. The "Landfrieden" of the Empire served as a model for the "Landfrieden" of the pro\inces, and to a certain extent for the statutes of the cities. The princes might, if they chose, cause the "Landfrieden" to be supplemented {cf. "Land- frieden" of 1287, § 44, Perlz, "Mon. Legg." II, p. 452). As to the sig- nificance of the "Landfrieden", cf. notably Waitz, VI, pp. 419 et seq. As to individual "Landfrieden", cf. von Schulte, "Lehrbuch der D. Reichs- u. Rechtsgesehichte", 3d ed., § 73. Also cf. Gierke, "Das deutsche Genossenschaftsrecht", I (1868), pp. 501 et seq. ^ The "Landfrieden" should not be confused with the "Gottesfrieden" ("Treuga Dei", Truce of God) introduced by the efforts of the clergy (first in France, but also in Germany). This provided for a cessation of feuds on certain days of the week and certain seasons of the year, and also that certain classes of persons should have a continuous peace (i.e. should not be subjected to acts of \aolence done in pursuance of feuds). Cf. the so-caUed "Constitutio pacis Henrici IV. Imp." a.d. 1085. Pertz. "Mon. Legg." II, pp. 55 et seq. "Sachsenspiegel", II, 66. The only penalties for breach of the "Gottesfrieden" were those of the Church (excommunication) . 98 Chapter IV] MEDIEVAL GERMANIC LAW [§ 34 preliminary challenge ^), and it was requisite that one should first have unavailingly prosecuted his complaint before a judge. In addition to this, a certain immunity from breach of the peace was declared to protect certain persons and places/ e.g. the clergy, travellers, merchants, country folk in the fields, the churches, the highways, and the inliabitants of a village when within its walls. ^ Obviously, this was in essence only a new assertion and extension of the old law. The fact that these " Landfrieden " were decreed and confirmed by oath for only certain fixed periods is to be ex- plained by the idea that, for this fixed period, there was established, as it were, a presumption of an established law and order, so that anyone who fictitiously alleged a legally justifiable feud was obliged to bring formal proof of the existence of those conditions without which the act of violence was regarded as a crime. As a consequence of a crime now being deemed a violation of the " Landfrieden ", there also arose the conception that a crime was essentially a breach of the peace, and hence in the first instance was to be regarded not as the violation of an individual right, but rather as a rebellion against the general law and order. Thus also there arose that special conception of a breach of the " Land- frieden " as the unlawful exercise of a feud, which moreover was in itself an offense without the commission of any other crime ; for, if anyone with an armed force merely entered the territory of another, the elements essential to the crime existed.^ Hence also arose that conception of a breach of a " hand peace " (" Hand- frieden ") or "pledged peace ", which later disappeared and is nut •"Const. Friederiei I. de ineendiariis", a.d. 1187 {Pcrtz, "Legg." II, p. 185): "Statuimus etiam . . . ut quicumqiie alii dainpmun facere aut ipsum ledere intendat, tribus at minus ante diebus per certum nuntiara suum diffiduciet eum . . . ." Cf. "Const. Henrici regis", a.d. 1234 {Pertz, ''Legg." II, p. 314). ""Sachs. Landr." II, 66, § 1. * Furthermore, a distinction was made between feuds against persons and feuds against things ("res"). {Cf. "Henrici I. treuga" presumably of A.D. 1224, Pertz, " Legg." pp. 266 et seq.) Violence (for the most part i was to be directed against persons and not against things. Consequently setting anything on fire was (as a rule) unpermissible. Cf. Kluckhohn, p. 144. ^ Cf. the general and indefinite provision in the "Landfrieden" of Rudolph I of 1287 (Pertz, "Legg." II, p. 449. n. 10) : "An sweme dt>r lantfriede gebrochen wirt, beziuget er daz . . . daz der cMnen zu ahte tun der den lantfrieden gebrochen hat." Perpetual "Landfrieden" of UU."). § 1 ("Neue Samml. der Reichabscliiede" II, p. 4) : •'Also dass yon Zeyt dieser Verkündung niemand . . . den andern bevehden . . . überziehen . . . noch auch evnich Schloss, Stett, Märckt, Bevestigung. DörlTer, HölT oder Weyler absteigen, oder on des andern Willen mit gewaltiger That frevent- lich einnemen . . . solle." 99 § 34] THE MIDDLE AGES [Paut I, TiTLE II mentioned in the Baml)er jussu Regis Caroli AUuTti ed. Legg. Municipales ", col. lOol. 1();!2) : those who had an "inimicitia" with a citizen of Casali' could impute it to tht'ir own fault if they came into the province of Casale and were injured ; he who injured them was not punished ; but the citizen of Casale must have caused the "inimicitia" to be entered in a public book designated for that pur- pose, otherwise the "inimicitia" was not regarded. Cf. also the statute of Dinkelsbühl (Genglcr, "Deutsche Stadtrechte", p. 85); here the fact of the ill-will was reported to the l)urgomaster. 1 This is treated in fuller detail in the discussion of the appropriate theories. 2"Verrath" (high treason), i.e. "Perfidia enormis" ("Recht von Winterthur", § 12, Gaupp, 1, p. 137). 101 LIBRARY UNIVERSITY cr CAlinORm RIVERSIDE § ;i5] THE MIDDLE AGES [Part I, Title II " traditio " or as having been committed " cum tradicione ", if it were done under circumstances which indicated a conscience- less treatment of the party injured, especially where he was slain, or which had placed him helpless and defen.->eless in the power of the criminal. Thus, for example, the slaymg of one while he wEvS asleep, the seduction of a married woman, and adultery were all spoken of as " treason." The earlier distinction between murder and manslaughter no longer obtained. Murder no longer is a slaying, followed by a concealment of the corpse. It is rather a slaying in violation of some special relation of confidence,^ in contravention of some special {e.g. " pledged ") peace, or a slaying induced by a base motive (especially desire for gain).^ IVIanslaughter included every other intentional wrong dangerous " per se " to life and actually- producing death. It especially included cases of homicide in which the man slain had, e.g. by his effrontery, given a certain degree of exculpation. The infliction of bodily injuries underwent in the local laws a more complete development. A distinction was often based upon the nature of the instrument with which the wound was inflicted, and upon the circumstances, whether or not the wound was inflicted with premeditation.'' The drawing of a sword or knife was punished both as an attempt and as a jeopardizing of the public peace. In the statutes of the cities special attention was given to the offense of breach of the " Hausfrieden " {i.e. peace of the house or home).^ Attention was also given (apart from niunerous police regulations ^ touching the markets and trade in general) to individual varieties of fraud, falsification of goods, weights, and measures. Bigamy ^ now more often appeared as an offense ^ "Mort" (murder), i.e. "Perfldia" ("Recht von Winterthur" cited above). * Ph. Allfeld, "Die Entwicklung des Begriffs von Mord bis zur Caro- lina", pp. 62 et seq. Cf. Frensdorff, p. bei. * In the North German sources : " Vorsate." ^ CJ. also "Lex Sax.", XXVII. The slaying of a "faidosus" (i.e. outlaw) in his own house was punishable with death. Cf. also "Lex Rib.". LXIV. ' Concerning the police ordinances of Nürnberg, cf. Siebenkees, "Ma- terialien zur Nürnberger Geschichte", pp. 676 et seq. Cf. "Brünner Schöffenbueh", N. 221. Mention is also made of "gemachte wandel." We find in Italy verj^ comprehensive police ordinances, often enacted with a ^■iew to hinder traffic in necessities of life that were dangerous to health, fraudulent, or spoiled. Cf. e.g. "Statuta Taurini", "Monumenta Patriae", "Legg. Munic", col. 678 et seq. '^ Cf. e.g. concerning the earlier law in the "Hansischen Recesse", 102 Chapter IV] MEDIEVAL GERMANIC LAW [§ 36 entailing secular penalties, and in the South German sources mention is also made of offenses contrary to nature. On the other hand, no change in the old conception of adultery (regarded merely as a wrong to the husband) was apparent until towards the end of the Middle Ages. § 36. Equality before the Law. — As far as the general funda- mental princi])les of criminal law are concerned, during the later Middle Ages, the life of the unfree was legally protected just as the life of freemen ; their death at the hands of their master was punishable by the State as manslaughter.^ Although, e.g. as in the Italian statutes, severe punishments were sometimes provided for " forenses " in contrast with " cives 'V and in the cities a distinguished citizen was given a certain right to chastise unim- portant persons and those of the rabble,'' and consideration was given " de facto " to the person in the application of the law, yet in legal theory, the equality of all persons before the law was a recognized principle. Instigation, Attempts, Negligence, and Premeditation. — Insti- gation to crime (which was not distinguished from moral assist- ance and thus was frequently called " counsel to crime ") ^ was generally punished in the same manner as the physical commission of the offense. However, in many cases other methods of ren- dering assistance were not uniformly treated as equally important. A general conception of attempt was not reached.^ Acts which we to-day would punish as attempts, were punished as acts dan- gerous " per se " and even as acts which pave the way for the commission of a wrong. In many sources ^ the distinction between acts committed " culpa " (i.e. by negligence) and those committed " dolo " (i.e. with malice) is correctly made.^ Only the latter Frensdor^, in the "Hansischen Geschichtsblättern", I, pp. 17, 36; "Ham- burger Recht von 1270", X, 6. '" Schwabenspiegel ", 73 (Ed. Lassherg). 2 The Jurists raised the question whetlier such statutes were permis- sible. CJ. Aiujclus Ari'titius. Ruhr. "De Bononia hoinicidiiim", n. 2. ' Sometimes the rabble, public portcTS, and pi'ojjlc of such type were even excluded from the "Stadtfrieden." In sucli a case one could al>usesu('h per- sons with impunity, so long as the Council of tlu' City did not exercise its discretion and interfere. CJ. von Maurer, "Geschichte", III, p. Kil. " CJ. John, pp. 21.') cl seq., 231 et seq. * CJ. as to the theories of attempt, John, pp. 141 el seq. 8 On the other hand, in the " Schwabenspiegel ", 182-184 (Lassbcrg) we find unfortunaite perversions of lh(< correct theory. Here homicide done "culpa" {i.e. with ne^digence) is treated, through a misconception of the Roman-Canon law and a perversion of the theory of the "Talio", as a crime deserving the death peiuilty. ^ CJ. e.g. "Sachssnspiegel", II, 3S. According to the "Sachsenspiegel" 103 § 37] THE MIDDLE AGES [Part I, Title II entail physical punishment. We often find a special rule for crimes committed with " vorsate " {i.e. ^ with special delibera- tion and premeditation — especially in cases of bodily injuries, etc. Moralizing Tendencies. — The effort to determine more exactly the element of inner guilt, the subjective side of the crime, led to many futilities. To reach right solutions was impossible with- out a more complete juristic development. In the latter ]\Iiddle Ages the number of the judgments by the " Schöffen " (lay- judges) moralizing on a false basis is by no means inconsiderable. The " Schöffen " of Brunn inflicted the death sentence sometimes " ob malam voluntatem ", and they banished from the city those who in despair over losses at dice had cut off their own thumbs.^ Such a tendency is especially evident in the treatment of suicide ^° which was regarded as punishable by the secular law. Herein may doubtless be traced the influence of the Church, and indeed the Mosaic law was regarded as divine law of complete and existing efficacy.^^ § 37. Effects of Changes in the Law of Proof. — A quite pecul- iar effect was brought about by the change in the old Germanic law of proof. Except in cases where the accused was apprehended in the act or was under some existing legal disability, the ancient law set him free if he took oath to his innocence. Although other elements enter into the origin of these rules,^ their practical effect was, in the one case, to establish a presumption of innocence and in the other, i.e. where the accused was apprehended in the act or was under some legal disability, to establish a presumption of guilt. only "wergeld" was paid in eases of homicide resulting from negligence. Corporal punishment was prohibited. * The meaning of "vorsate" has been pointed out by John, pp. 64 et seq. " "Brünner Schöffenbuch", N. 539, 270. In the first case the offender was guilty of a bodily injury very reprehensible from the moral stand- point, but there was no possibility to surmise an intention to kill. 1" As to the treatment of suicide in South Germany, cf. Osenbrilggen, "Studien", p. 337. To the early Germans suicide by an aged man weary of life seemed honorable. Later it was regarded as a relapse into heathen- dom, the realm of Satan. " Cf. e.g. "Schwabenspiegel", 201. 1 The law of proof, in cases where the offender was caught in the act, was originally nothing other than a justification of private vengeance against the offender who was in one's power. Cf. Dahn, '" Fehdegang und Rechtsgang der Germanen" (1877), and especially R. Löning, "Der Reinigungseid bei Ungerechtsklagen im deutschen Mittelalter" (1880), pp. 97, 98. 104 Chapter IV] MEDIEVAL GERMANIC LAW [§ 37 This presumption of guilt was now given extended application, and even became a " prsesumptio juris et de jure ", i.e. amounted to an incontrovertible finding of the fact of guilt. Thus a man suspected of counterfeiting was convicted without further proof, if a certain amount of false money was found on his person,- or a jnan was hung for theft if the article missed by another was found on his person and he could not i)rove purchase from a third party in public market/^ Thus, especially in Southern Germany, the law of self-defense came to be particularly deformed as a result of such a presumption being raised to a rule of law. From the standpoint of proof, if a distinction is sought between self-defense and chance-medley, it is not improper to ask if he who alleges self-defense has himself received any wounds ^ or if he endeav- ored to avoid the aggressor.^ But as rules of sul)stantive law such presumptions are improper. There may well be cases of self-defense in which wounds have not been received by the accused, nor three steps taken in retreat.^ So long as in cases of homicide it was only a matter of adjusting the payment of the " wergeld ", such presumptions could be endured and something could be said in their favor. But it was altogether a different matter if the false presumptions had as their result the beheading of the accused.^ It became still worse as the system gradually grew up of public prosecution of offenses by State officials, for a private accuser was at least obliged to lay an information charging the offense, and often was placed upon oath. But a crude method of considering expediency in matters of police control resulted in the establishment of such j)resumptions,^ and led e\en to the 2 "Sachs. Landr." 11,26 § 2; "Stadtrechtsbueh", Ruprecht von Frey- sing, e. 57. 3"Brünner Sehöffenbuch", N. 545. Cf. "Stadtrechtsbueh", Ru- precht von. Freysing, e. 21. If the town lioadlos slow anyone who went witliout a hfi^ht in tlie ni^ht and did not aUow himself to he (aUen. they could free themselves by oath from the charge of manslauf:;liter. saying they had done the deed "frid willen." But if they had a standing' p:rudge against the slain man, then they were forthwith ohlifjed to sull'er for it. Yet it might well be that one might slay for a justifiable reason another against whom one hapi)ened to have a standing grudge. ('/. also id., c. 38. If two wer(! taken ha\ing upon them stolen goods of a certain \alue, both were hanged, -altliough one asserted Ids innocence. * "Bamberger Recht" (ed. Zöpß), § ir,S. ^ "S(diwal)enspieger' (Lassberg), c. 79. ^ Cf. Oscnhrnggcn, "Das Alamannische Strafrecht", pp. 151 ci seq.; von Bar, "Das Beweisurtheil des germanischen Processes" (Hannover, 1860), pp. 8(), 87. ^ In Constance in 1443, any one would bo beheaded who coidd not positively prove that he had retreated three stops. Oscnhriigiirn, p. 153. 8 It was provided by a statute of Strassburg, of 1322, § 175. that if 105 § .'}7] THE MIDDLE AGES [Part I, Titij; ]J practice of capital punishment for acts that were merelx' danger- ous, e.g. tlio carryiii«!; of a knife forhidckMi l)y hivv.^ Arbitrary Character of the Law. — To make up for tiie defi- ciencies of the procedural kiw, thus ensued an increase in the severity of the substantive law. And this substantive law itself acquired a certain discretionary or arbitrary character. As a result of the instability of the legal system of the entire empire, the law had to be periodically, not exactly created anew, but at least again put in force and declared as effective for the smaller groups and communities. It might almost be said that the exist- ence of the criminal law was merely a matter of contract ^'^ or rested upon the w^ill of the ruler. In the Middle Ages there are even cases of voluntary submission to public punishment as a penalty for mere breach of contract. At times no hesitanc>' was shown in punishing with cruel penalties even the most insignificant offenses when they were opposed to the interests of the landowner or might derogate from the respect due to the city. That penal- ties were imposed by a village court for the girdling of trees is well known and has been a subject of frequent comment. ^^ But it is not the only example. According to another custumal, a cruel death (to be inflicted with a plow) was the punishment for a destroyer of boundary stones ; ^- while by a third custumal ^^ the burning of the soles of the feet was prescribed for one who had damaged trees in the forest. According to the " Schöffenbuch " ^^ of Brunn any one who reviled the " Schöffen ", because of a deci- sion he believed to be unjust, was to be nailed to a stake by the tongue until he cut himself loose. In the Freiburg " Stadt- rechte ", ^^ the death penalty was prescribed both for polluting any one wounded or slew another, then the penalty of loss of head or hand was inflicted upon all who had followed him bearing drawn swords, pikes or halberds, just as upon him who actually inflicted the wound or dealt the death blow. Osenhrilggen, p. 169. ^ Even the carrying of a knife of forbidden length entailed the loss of a hand. "Wiener Stadtr.", 1221, § 39. "Rudolph I Landfrieden of 1281", § 55 (Pertz, "Legg.", II, p. 430). Unauthorized manufacture of skeleton keys for another was punishable with the loss of a hand. "Briin- ner Schöffenbuch", N. 548. Cf. also "Prager Stadtrechtb.", X. 57. 10 The "Landfrieden" must also have been sworn to by individuals. "Const. Henrici IV", a.d. 1103 {Pertz, "Legg." II, 61); "Rudolph I Const, pacis", a.d. 1287, c. 39 (Pertz, "Legg." II. p. 451). " Custumal of Oberursel of 1401 {Grimm, "Weisthiimer", III, p. 489). The intestines were to be drawn from the offender and wound around the tree. Cf. concerning offenses against the laws of the forest and chase, during this period. Roth, "Geschichte des Forst- u. Jagdwesens in Deutschland", pp. 131 et seq. 12 Grimm, III, p. 590. i» md^ j^ p. 490. » N. 536. " 1520, Fol. 95, 97. 106 Chapter IV] MEDIEVAL GERMANIC LAW [§ 38 the springs of the city and for laying violent hands upon the night watchmen. It is conceivable that the first-mentioned refined and barbarous punishments were not actually carried out. But they were not mere jests/^ and they reveal that such penalties for such cases were deemed justifiable. § 38. Confusion resulting from the Term " Frieden." — As is often the case with mere words, the use of the word " Frieden " was of far-reaching importance. Since from early times grave crimes had been called " Friedbrüche " (breaches of the peace) and now their punishment was no longer based upon some especially agreed or pledged peace, it was an easy step to place on an equality ^ with these grave crimes, in respect to punishment, minor oft'enses which were forbidden by the " Landfrieden " or " Stadtfrieden." Thus, even in the Saxon " Landrecht " - (which upon the whole is free from extravagances) the death penalty is prescribed for the litigant who, after being enjoined by a judge from the use of a piece of land, nevertheless in spite of the " Frieden " as to the same declared by the judge, again undertakes its cultivation. Although it may of course be argued that in those times disobedi- ence towards a judge or lack of respect for judicial decrees were not things to be tolerated, yet such abnormal severity can be explained only from the association of this " Friedbruch " with a " Friedbruch " in the early sense. As is also shown by the Gos- lar " Statuten ",^ the conception of a " Fried bruch " was by no means limited to grave crimes ; as a result of this, attainder (" Verfestung ") might ensue for lesser acts which also were called " Friedbruch ", and where attainfler attached to an indi- vidual, his life was forfeited, no matter how insignificant may have been the " Friedbruch " of which he was guilty.^ 1^ In the Middle Ages great importance was often attached to the spoken word. CJ. the case in Constance cited in note 7 nnle. iThus e.g. by " Iludolph I Landfrieden" of 1281, §8 {Pcrtz, "Legg." II, p. 427) the unautliorized keeping for sale of wines and liquors was regarded as a "Friedbruch." In connection herewitli it may l)e noted that where the offense consisted of the breach of a specially "pledged peace" (or of a peace enjoined by the state authorities), it was, according to many sources, rather the formal conception of a violated utterance that formed the essence of the ofTense, c.q. tlie violated command of the authorities. Cf. Schlierlinger, "Die Friedensbiirgscliaft ", pp. 12 et seq., p. 59, and especially "Sachs. Landr.", Ill, •). § 2: "Brict en man den vrede, den lie vor sic selven lovet, it gat ime an den hals." Mil. 20 § 3. ^Göschen., "Goslar' sehe Statuten", p. 201. ^ "Vestinge nimt den manne sin lif, of he begrepen wirt dar binnen." "Sachs. Landr.", III, (53, § 3. Göschen, p. 477. Cf. p. ÖG, line ö.') ; j). 'ü , lines 12-14; p. 59, line lü : "Wert en in der veste begripen, de vestiugho 107 § 38] THE MIDDLE AGES [Paut I, TiTLE II Reversion to Primitive Conceptions. — The idea that legal pro- tection depended npon one's belonging to some association or group, together with the fact that even within as well as outside the walls of the cities there was but little actual protection afforded to life or property because of the constant feuds and the continual increase of professional rascality,'' resulted in a revival of the most primitive and harsh conceptions of criminal law. The criminal if he was not a member of the small local group was again regarded as an enemy against whom the doing of any act was permissible. Thus e.g. the " Stadtrecht " of Augsburg,^ while men of means residing in the city were treated with great consideration in respect to arrest or conviction, provided that if a stranger scoffed at a citizen of Augsburg, everyone should run to the spot and that thereupon any wounding or even slaying of the stranger was permissible. We find in the Laws of the Cities (" Stadtrechte "), provisions that a stranger who outside of the city is mistreated or wounded by a citizen can obtain no satis- faction within the city before its courts.^ Severity of the Lavy. — Thus criminal justice, especially in the States of the South of Germany, gradually became extremely harsh and cruel. The Statutes of Augsburg of 1276 were written in blood. The hard-hearted citizen-body,^ proud of their wealth, caring everything for property and little or nothing for the life or misery of the poor man, were willing to inflict the loss of a hand as a penalty for merely entering an orchard or grass plot with intent to steal, while prostitutes (who, as is well known, were numerous in even the respectable cities of the Middle Ages) were for the simple violation of a police regulation punished by slicing off the nose.^ Application of Mosaic Lavr. — In addition, the application of the Mosaic Law and the theological idea of the " talio " (eye for nimt ime dat lif. " CJ. especially Planck, "Das deutsche Gerichtsver- fahren im Mittelalter", II (1879), p. 300. ^Concerning this cf. Cap. a.d. 789, c. 78 (Pertz, "Legg. I", p. 65), and especially Ave-Lallemant, "Das deutsche Gaunerthum" (1858), I, pp. 43 et seq. 6 Supplement to Art. XXXV, ed. Meyer, p. 105. ' Gaupp, "Deutsche Stadtrechte des Mittelalters", II, p. xv. * Also in North Germany outside of the cities there were death penal- ties for certain cases of theft, e.g. serious thefts in the night ("Sachs. Landi-." II, 28), theft of plows from the fields ("Sachs. Landr." II, 13, § 4). Cf. also Osenbrüggen,'' Der Nachtschach" in his "Studien", pp. 241 et seq. ^ The order to leave the city within the sacred forty days. "Augs- buiger Stadtrecht", 113 (ed. JMeijcr, p. 190). 1C8 Chapter IV] MEDIEVAL GERMANIC LAW [§ 08 an eye, etc.), became predominant, especially in South Germany. It is true that the ^Mosaic criminal law '° by no means appears so harsh as may be inferred from a mere literal interpretation of single passages; and the " cutting off ", so frequently mentioned, refers merely to an avoidance of divine wrath and not to an actual punishment ; often the " talio " is merely the basis for compensa- tion or a means of compelling compensation. But in the Middle Ages the expressions of the Mosaic Law were construed singly and literally, and where offenses against religion and morality are concerned it is in many respects harsh and cruel. The idea of the "talio" (originally unknown to the Germanic law)'' often reappears exactly in its well-known Mosaic form in the South German statutes.'- This contributed not a little towards making the criminal law harsh and cruel, and the more so since its alleged divine origin seemed to preclude any compromise or mitigation. ^^ Cruelty of the Punishments. — Because of all this, cruelty ^* and studiciit time, see below. ^* For a long time in Nürnberg women were buried alive for simple theft. Siebenkees, "Materialen zur Nürnberger Geschichte", II, p. 539. 1^ If e.g. a Jew was being executed, a cap of glowing pitch was placed on his head. ^^ "Alle mordere, unde die den plug rovet oder molen oder kerken oder kerchof, unde vorredere unde mortl)ernere, oder dii- ire bodescap wervet to irme vromen, die sal man alle radebreken. Die den man slat oder vat oder rovet, oder bernet sunder mort brand, oder wif oder maget nodeget, unde den vrede breket, unde die in overhure begrepen werdet : den sal man dat hovet af.slan. Die dü\e hudet oder rof o
  • r einanne mit helpe dar to stärket, werdet sie des verwunnen man sal over sie richten als over jene." 100 § 38] THE MIDDLE AGES [Part I, Title II injijs of value, contains frequent penalties of death and breaking on the wheel. An enumeration of the forms of mutilation used as punishments in the south of Germany (branding, cutting off the hand, the ears, the tongue, putting out the eyes) is revolting, and the modes of death varied between breaking on the wheel, quarter- ing in the cruelest manner, pinching with red-hot tongs, burying alive, and burning. Even the executioners complained about the cruelty in the infliction of the punishments required of them. ^'^ Gallows covered and surrounded by corpses, which rotted as they were devoured by birds of prey, were a plain mark of the neighborhood of an important court, especially a city court. '^ Failure of the Law. — Yet the cruelty of these punishments in no way served the purpose of lessening crime. ^^ " Xec his tormentis et cruciatibus arceri potest quin semper scelus sceleri accumulent," says Celtes. Professional swindling (reference to which can be found as early as in the Capitularies) increased as a result of the numerous feuds, and developed into a well-banded organization.-*' The smallness of the judicial districts, the limita- tions upon the jurisdiction of many of the courts,-^ and the defec- tive legal machinery, impaired the power of justice and favored the escape of criminals. At the same time the rabid pitiless hos- tility, especially to offenses against property, of a criminal law 1^ In Nürnberg, in 1513, the executioners complained about the cruelty of burying alive. Siebenkees, p. 599. la "Qui delicta eommittunt levi etiam aliquando causa diversis poenis et generibus tormentorum exquisitis afficiunt" are the words of a con- temporary, Conrad Celtes ("De origine, situ, moribus GermaniaB, Norim- bergse") in giving a horrifying description of criminal justice at the end of the 1400 s. (The passage from this book, which is now rather rare, is given in Malblank, pp. 37 et seq., and Henke, I, pp. 290-292.) 1^ In the sources for the law of the Middle Ages, frequent mention is made of imprisonment ("Cippus"), but uniformly only as imprisonment preliminary to trial, and generally of a revolting nature. Cf. also Streng, "Das Zellengefängniss " (Nürnberg, 1879). Imprisonment as a punish- ment occurred only occasionally, in cases of money fines for breach of police regulations where the offender was unable to pay the fine, and its duration in such cases was short. Cf. e.g. "Prager Statutarrecht", N. 20, 21. 2" Cf. concerning Sebastian Brandt's "Narrenschiff", and the "Liber Vagatorum", with its clarion warning, published by Luther with a preface, Ave-Lallemant, I, pp. 137 et seq. 21 The baronial courts, which could not use the blood ban, had the right only to take preliminary cognizance of graver crimes and were obliged to deliver the criminal to the public coiu-ts of the lord. If the judge did not appear, to receive the criminal, at the place fixed by custom for the delivery, the criminal was bound (symbolically) with a straw band, i.e. he was allowed to flee after he had been stripped to the waist. Cf. Grimm, "Weisthümer", 111, p. 640, N. 6; p. 685 and Maurer, "Geschichte der Fronhöfe in Deutschland", IV, p. 406. 110 Chapter IV] MEDIEVAL GERMANIC LAW [§ 38 enacted and administered by the wealthier class had, as its conse- quence, a similar hostility on the part of the offenders and their following. Add to this that, through the dishonorable punish- ment of exposure on a pillory (for lesser offenses, especially the first theft), and through the public floggings, the sense of honor and self-respect was lamentably destroyed." The punishment of infamy (which was at this time markedly developed) closed the doors to most of the honest occupations, and the frequent banishments from the cities and the country districts -^ made the offenders homeless and deprived them of means of li\'eliliood. In addition to this a deplorable part was played by the frequent confiscations (partial or total) of property ; this penalty applied not only to treason against the comnuuiity, but also very often to homicide and even to severe wounding, and to lieresy.^^ It 22 The Middle Ages developed a considerable number of dishonorable and degrading punishments, which in part had a humorous aspect, but which if they did not render the offender infamous (permanently), never- theless could operate to his disadvantage. Among these we find the punishments of "Schandkorbes" (literally "disgrace basket"), the "Schnelle" (infra), the "Badekorbes" (literally "bathbasket"), the "Wippe" ("strappado"), ducking into water, ridicule by children, riding on a donkey, carrying a plow-wheel with dogs or saddles, etc. Cf. Grimm, "Deutsche Rechtsalterthiimer", pp. 725, 726; \'on Maurer, "Geschichte", IV, pp. 269 et seq., pp. 378, 379. Where the degrading punishment consisted in the carrying of an object — a mild form of this sort of punishment — an object was chosen in accordance with the call- ing and rank of the offender. Thus, e.g. a bishop was obliged to carry some paper with writing. The "Schnelle" or "Schuppe", a basket out of whi('h the offender was obliged to jump into a puddle or into a horse- trougli, was much used in the case of bakers who did not bake bread of the prcjper weight. Cf. Osenbriiggen, "Studien", p. 364; Gierke, "Der Humor in deutschen Rechte" (1871), pp. 48 et seq. Concerning the "Scliuppcnstuhl", a punishment much in use, cf. especially Frensdorff, in the "Hansische üeschichtsblättorn" (1874), pp. 30 et seq. 2^ As to this, cf. Walchner, "Geschichte der Stadt Radolphzell" (1825), p. 70; Ave-Lallemant, I, p. 87; "Briinner Schöffenbuch", X. 540. "Ab antiquo consuetum est, quod quicumque pro maleticio flagoUetur membris mutiletur vel aliter secundum justitiam corpore vitiatur, illi civitas est interdicta." As to banishment in Flanders, cf. Warnkünig, "Flandrische Rechtsgeschichte", III, 1, pp. 173 et seq. In Flanders regular circuits were made to look for banislied persons. 2' (f. e.g. City law of Hagenau, of 1164, §§ 12-15 (Gaupp, "Deutsche Stadtrechte des Mittelalters", I, p. 98) ; City law of Innsbruck, of 1239, § 7 (Gaupp, II, p. 254). The grounds for these extensive confiscations of property are not sufficiently ascertained. In the time of the Carolingians we find them in connection with exile and capital punishment (W'ailz, "Deutsche Verfassungsgeschichte", IV, p. 439), and generally for breach of faith (Wailz, HI, p. 265) and also in graver crimes such as parricide and incest. Partial confiscation was threatened as a sui)plemcntary punishment e.g. in the "Constitutio llenrici III. Langobardica ül)er den Giftmord" (I'ertz, "Legg." 11, p. 42). (As to th(> gradual mitigation of this punishment, cf. Osenbriiggen, "Studien ", pp. 185 et seq.) In my view, the confiscations of property in the Middle Ages were connected in ono 111 § 39] THE MIDDLE AGES [Paut I, TlTi.K II became much restricted in the later enactments ; and an argument against it was doubtless found in the maxim that a man pays for ever.Nthing with his head. But even as late as the Carolina (Art. 21S) it was found necessary to limit the frequent and often (juite illegal confiscations of property, whereby " wife and children are reduced to bejigary." § 39. Incidental Circumstances having a Demoralizing In- fluence. — There were, moreover, a number of incidental cir- cumstances by wdiich the demoralizing influences resulting from so crude a system of criminal justice were greatly increased. In the first place, in the case of many crimes and especially in manslaughter, it was of vital importance whether judgment was rendered immediately after the act (or what amounted to the same thing, the offender was caught while under that form of conditional outlawry known as " Verfestung "), or whether the offender was able to achieve for himself temporary safety and then to negotiate a settlement in money. It was only in the former case that the death penalty prescribed for manslaughter was applied, and there were sometimes even express provisions to this effect.^ Because of the inadequate legal machinery of the various territories and judicial districts, and because of the numerous free States^ which furnished temporary protection to fugitives, aspect with the unfree status ; since originally they were to the advantage of the lord of the city, and according to the French feudal law the com- mission of certain crimes by the feudal tenant caused him to forfeit his movables to his lord ; cf. Du Boys, II, p. 221 et seq. In another aspect, they were connected with the fact that a breach of the peace entailed outiawTy, i.e. the loss of all the offender possessed within the community, as confiscation very frequently occurs during the 900 s, 1000 s, and 1100 s. 1 Cf. e.g. "Reehtsbr. von Passau" of 1225, § 24; "Eisenacher Statut" of 1283; "Rechtbueh" of Duke Albrecht for Klagenfurt of 1338, §8 {Getigler, "Deutsche Stadtrechte", p. 291). As to Bremen also, it is stated by Donandt, "Versuch einer Geschichte des Bremer Stadtrechts", II, p. 289, that a captured slayer was beheaded ; but it was possible for one to free himself from outlawry by the payment of money. The "Con- stitutio Friderici I de incendiariis " of 1187 fixed the punishment of decapitation only for the incendiary who was captured. On the other hand, he who gave himself up of his own free will, or relieved himself of the attainder, was to undergo only the penance (going on a pilgi-image) infiicted by the Church, pay compensation, and suffer banishment for a year and a daj'. 2 Every courtyard of a lord, and later every place of residence of one of his officers, was a "free place", whence one could negotiate for a monej"" settlement of a ease ("Freihöfe"). Customarily the fugitive had si.x weeks and three days for this purpose ; even at its expiry he was not re- quired to be delivered up, but he could be brought to a place {e.g. in a forest) from which further fiight was easily possible. There were penalties of considerable severity for the violation of this right of asylum, which originally belonged to the courtyard of anyone who was entirely free. 112 Chaptkr IV] MEDIEVAL GERMANIC LAW [§ 39 wealthy offenders who had numerous friends and rehitives must often have been able to attain temporary safety and negotiate a settlement. On the other hand, every crime, for which condi- tional outlawry (i.e. " Verfestung ") was pronounced against the fugitive offender, entailed the death penalty in case the offender was captured.^ This conditional outlawry, in case the offender Cf. Von Maurer, "Geschichte", IV, pp. 246 el seq., and also Frauenstädt, "Blutrache und Todtschlagsühne im deutsehen Mittelalter" (1881). pp. öQ et seq. Frequently this right of the '"free i)laees" was based upon a privilege granted by the emperor or prince. Later, privileges of this character, because of the e\il conditions to which they gave rise, were only granted under limitations. — In this connection belong the provisions of the statutes of cities relating to the peace of the home ("hausfriede"). Anyone who fled to the house of another, if the judge himself did not demand him, was temporarily secure from arrest. He who was al)le to reach his own home, had there a definite period of peace, within which he w^as often able to make good his escape. Cf. Osenbriiggen, "Der Hausfrieden" (1851), pp. 26 el seq., pp. 40 el seq. ^ "Sachs. Landrecht", III, 63, § 3. "Vestinge nimt dem manne sin lif, of he begrepen w^ert dar binnen." "Augsburger Stadtrecht" of 1276, Art. XXXVIII. "Swer in der aht ist, wert über den gerichtet, den sol man ouch das haupt absiahen. . . ." Cf. Göscheri, "Goslar'sche Statuten", p. 477. However, this severity could not always be kept up, when in the cities the punishment of "Verfestung" began to be extended to less important cases, as e.g. in the law of Lübeck. Although originally the distinction between "Verfestung" and "Stadt Verweisung" was clearly marked, — the latter being a punishment inflicted upon one who was absent, and the former being a penalty for contumacy on the part of one who Avas absent {Frensdorff, p. x.xiv) — "Verfestung" often resulted in "Stadtverw'eisung" and involved complete or partial con- fiscation of property. Cf. Frensdorff, p. Hi. It had also many varieties {Frensdorff, pp. xx, xxi). "Acht" ("ähta" or "ahtunga" i.e. "perse- cutio") or "Verfestung" ("proscriptio") is not a punishment of a crime, although many have so regarded it (e.g. Ilalsehner, p. 31 ; Wailz. Vl, p. 492; II ago Meyer, "Das Strafverfahren gegen Abwesende", pp. 68 el seq.). It is rather (as has been correctly pointed out by R. Loning, "Der Vertragsbruch und seine Rechtsfolgen", I, p. 219) an incident of procedure resulting from the refusal, in a serious case, to apjjear before the court. It was only when this refusal, by persons of certain ranks and classes (especially those who could avail themselves of a feud), came to be customary and regular, that "Acht" actually assumed the character of punishment. The practical effect of "Verfestung" was that, as a result of the contumacious behavior, the punishments provided for the offense became increased to capital punishments (thus Frensdorff, J), xviii). "Verfestung" (or "Acht" as it was generally called when declared by the kings) is simply a milder form of outlawry. No one was allowed to furnish food or roof to one against wdiom "Verfestung" or "Acht" had been pronounced. Yet such a one was not entirely bereft of aU rights. The accuser however gained the privilege of making proof, and according to the law of Lübeck lie was required to prove merely the "Verfestung," and not the charge as a result of which the "Verfestung" had arisen (Frensdorff, p. xxix). It is peculiar to the "bannitio" of the Italian statutes, to which the Italian jurists gave so mucli attention, that the "l)amiitus" could be attacked with impunity by anyone, (('[nrus, § " Hoinicidium " n. 71, even raises the question whether the "bannitus" could avail himsrlf of the plea of self-defense against a person who attacked him relying upon 113 § 39] THE MIDDLE AGES [Pakt I, Title U f]i(l not relieve himself thereof within a year and a (la\', became a complete and absolute attainder within the district whose judge had pronounced the sentence.^ Private Settlement in Cases of Crime. — In spite of the punish- ments of life and limb so often categorically expressed, there ob- tained as a matter of fact, not only in cases of manslaughter ' and wounding, but often in cases even of robbery and theft, ^ the so-called " Taidigung ", i.e. private settlement with the injured or possibly w'ith his relatives. The authorities of a city were often in need of preserving the peace between two of its powerful families," and for a long time, in cases of manslaughter, the inter- this impunity provided by statute.) Herein is seen the influence of the numerous factional strifes of the Italian cities. * In order to make the "Verfestung" more extended in its application, it could be brought up before a higher judge and ultimately before the court of the king. In such case it came to be imperial outlawry, applicable to the entire empire. "Verfestung" pronounced in certain courts was "ipso facto" applicable to the entire territory. Frequently agreements were made between the cities for the mutual observance of sentences of proscription pronounced by any of them. As to this, c/. H. Meyer (cited above), pp. 86 et seq., and Frensdorff^ pp. xxiv et seq. According to the "Br (inner Schöffenbueh", n. 482, anj^one proscribed for theft was hanged, upon a mere written request certifying that he had been justly proscribed. According to the " Sehleswig-Holstein'schen Landtheilung " of 1490, banishment was to apply to the whole country. Cf. vo/i ]\'urn- stedt, "Zur Lehre von den Gemeinde-Verbänden, kritische Beleuchtung des Rechtsstreits, betr. die Glückstädter Strafanstalten" (1878), p. 34. We find in the cities and also in the royal courts certain lists of those who had incurred "Verfestung" and "Aclit" ("Liber proscriptorum"). Cf. "Alberti I Const, pacis", 1303 § 37. Pertz, "Legg.", II, p. 483. * Moreover, in many places intentional manslaughter not involving high treason was not punished with capital punishment until the Carolina came into effect. According to the "Braunschweigische Echteding" of 1532, n. XXIX {Hänselmann, " Urkundenbuch der Stadt Braunschweig", p. 342) it entailed banishment from the city for fifty j-ears, a money fine of thirty guilder paj^able to the council, and settlement uith the blood relatives of the party slain. Concerning the securing of immunity by the payment of money even in cases of murder, in Flanders, cf. Warn- könig, "Flandrische Rechtsgesehiehte", III, 1, p. 160. ^ Cf. "Klagspiegel", Title "de poenis" (fol. 31b of the Strassburg edition, 1533). "Item Du solt mercken, das vmb ein yegldich, darumb dann über das blutgericht möcht werden, getaidingt vnd übereinkommen mag werden on pen." Until 1527 the nobility in the Älark of Branden- burg claimed the unlimited right to make a settlement with "Wergeld" and "Gewette" for even maUeious manslaughter. Cf. Hälschner, "Ge- schichte", p. 117, and for remarkable illustrations in the 1600 s in Han- nover (Vogtei Celle), cf. Büloio und Hagemann, "Practisehe Erörterungen" II, p. 260. ^ Concerning peaces proclaimed by the authorities, which not only the famiUes but also their "famuli" and "servi" were bound to observe, cf. e.g. "Brünner Schöffenbuch", n. 530, 534 and also "Wormser Reforma- tion", VI, 2. tit. 23. {Cf. also Osenhrüggen, "Studien", p. 483.) It frequently happened that a pledged peace was declared void by the interested parties. This liberty in turn came to be restricted by the statutes. 114 Chapter IV] MEDIEVAL GERMANIC LAW [§ 39 vention of a criminal judge was regarded only as a last resort in case the families concerned could come to no agreement.^ In order to prevent pri\-ate feud-vengeance they often compelled the relatives of a man who had been slain to accept compensation. When once a complaint had been lodged, there could be a settle- ment only with the approxal of the judge,^ antl, if the accuser with- out such approval discontinued the prosecution, he was himself subject to fine.^° However, this approval of the judge, who re- ceived the fee which was paid (the ancient " Fredum ") and often something besides, was not difficult to obtain, and thus the right of administering justice (which was granted as a piece of property, as appurtenant to a fief), was always regarded as a source of revenue. ^^ The " Grace " of the Rulers. — Here one can observe the work- ing out of the old conception, viz. that since the king has the authority to protect the peace, a violation of the peace is, as it were, a wrong done to the king or ruler and that in the settlement * In Italy, it was for a long time a matter of controversy whether or not a "pax" concluded with the party injured precluded the criminal prosecution. As to this, cf. Bonifacius de ]'italinis, "Ruhr, de poenis", n. 4 et seq. This writer also discusses ^\ith great clearness many dubious points therewith connected, e.g. whether compromise is permissible where there are many heirs. As to the extraordinary favor shown to atone- ment for manslaughter in northern Germanj', even late in the Middle Ages, cf. notably Frauenstädi, pp. 13ö el seq. Frequentlj" the relatives of the slain forbore bringing a complaint because of fear for themselves. Frauenstädi, p. 169. ^ The "pax" or "remissio" required in Italy also the "approbatio" of the court. {Cf. the very clear description in Clarus, § fin. qu. 58.) Even in the middle of the 1500s the "pax" played an important part. '0 "Sachs. Landr.", I, 53, § 1, II, 8; " Stadtr. von Ens von 1212". § 21 (Gaiipp, II, p. 222) ; "Wiener Stadtr. von 1221 ", § 31 ; " Brünner Sehöf- fenbuch ", n. 52 ; " Klagspiegel ", Tit. " de poenis ", Fol. 131b. " Cf. concerning such "Taidigungen", especially, Zöpfl, "Das alte Bamberger Recht, als Quelle der Carolina", p. 114. The obligations assumed in such cases were very exactly observed. In the year 1328 a man killed another in Bamberg, and in expiation pledged himself to perform church penance together with his relations. If he did not ful- fill this obHgation he was, A\dthout possibility of pardon, to be immediately put to death. It was as if he had upon oath offered himself for execu- tion in case he did not fulfill his pledge, and apparently even if his rela- tives refused to join him in the church penance. Cf. supplement V, n. CIV to the "Bamberger Recht" in Zö/>.//, p. 164 of the "Urkundenbuch". and Zöpß (cited above), p. 115. The importance of the element of voluntary subjection appears in the instance cited by (\iiitzotr, "Pom- merania", II, p. 448 (r/. Jcircke, "Handbuch", I, p. 32) in the '70s of the 1400 s. A young man of good family had unintentionally in a jest killed his friend. His friend's relatives allowed him to be sentenced to death, intending to later set him free, and having in mind to gain credit for themselves for having given him his life. The condemned num, how- ever, was too proud to accept this, and permitted himself to be executed at the churchyard, and refused all consolation from the e.xecutioner. 115 § 39] THE MIDDLE AGES [Part I, Title TI of this wrong he may act in his discretion and pleasure just as a wronged private citizen might act in regard to feud and composi- tion. Both in the royal ordinances ^^ and in the statute books of the local lords ^^ there is often to be found the indefinite threat that the individual violating a certain order or ])rohil)ition shall forfeit the " grace " or " mercy " (" Gnade ", " misericordia ") of his king or lord. This " grace " ^'* had to be regained by the payment of a sum sometimes fixed, but more often determined at the discretion of the king or lord. The offender was often allowed peace for a certain time until he could collect this sum. It was understood that this " grace " was to be interposed where a definite punishment was threatened, and that this right belonged not only to the lord but also to his officials. Yet, where it was a wrong against a private person that constituted the offense, this " grace " could be interposed only with the consent of the party injured,^^ or where he did not insist upon the extreme letter of the law. Where a man had been slain, this consent had to be given by his relatives. All this shows how deeply-rooted was the old idea that a crime Avas primarily a violation of a specific individual right and only incidentally a wrong to the established law and order. When not influenced by some base motive, it was fre- quently the intercessions of the Clergy or the prayers of the rela- tives (or friends) ^^ of the offender which caused the judge, instead of giving the regular sentence (some penalty of life or limb), to sentence the offender to pay a money fine, or to go upon a pil- grimage, or perform some other pious work. It is, however, very apparent that although no legal distinction was herein made be- tween the poor and humble and the rich and prominent yet there was a great practical distinction. The former did not have those 12 Cf. Waitz, VI, pp. 450 et seq. 13 Cf. e.g. "Freiburger Stiftungsbrief" of 1120 § 14 (Gaupp, II, p. 21) : "gratiam Domini ducis amisit." "Stadtrecht" of Dattenried of 1358 § 26 (Gaupp, II, p. 180). Death sentences were often worded: "sit in potestate" (or "in gratia", or "in misericordia") "domini." Cf. Warn- könig. III, p. 162. " Cf. the oldest statute of Soest, § 6 (Gengler, p. 441) : "Causa quse . . . mota fuerit et terminata vel per justitiam vel per misericordiam . . ." Kaiser Sigmund in 1433 granted the city of Luzern a special privilege in respect to judgments subject to "grace." 1^ Hälschner, "Geschichte", p. 45. 1^ According to "Peinliche Halsgeriehtordnung von Davos" in Switzer- land in the year 1650, on the last day of the session of court, the question was to be asked, "If any man or woman spiritual or secular would inter- cede for the pardon or mitigation of punishment of the poor persons." In this it was sought to secure a scrutin3% by the moral sentiment of the people, of the severity of the judgment. 116 Chapter IV] MEDIEVAL GERMANIC LAW [§ 39 influential mediators upon whom the latter could rely. Hence, sometimes, the judges would not dare to inflict a well-deserved death sentence upon a prominent person ; in so doing, they deemed that they were but acting in accordance with custom. Other Peculiar Customs. — Often, according to an old custom (surviving even until the end of the 1600 s), the condemned was permitted to live, if some woman (originally only a virgin) desired him for a husband. Later this peculiar law also found applica- tion where a condemned woman was desired by some man as a wife.^'' Influence of Accidental Circumstances. — An influence was accorded also to accidental circumstances. Thus the executioner had the right to free for a money payment every tenth man who was delivered to him for execution. ^^ As in the primitive periods, the criminal was not executed outright but rather offered as a victim to the elements,^^ so later mere chance was often allowed to prevail as a sign of forgiveness manifested by God, and thus to preclude the carrying out of the sentence.-" Uncertainty of the Court Procedure. — Most important of all, the uncertainty of the cojtrt jn-occdurc should be considered, espe- cially the law of proof in the later Middle Ages. A description of this must be left to the historian of criminal procedure.-' We find strange combinations of the Germanic and Roman rules of proof, — oath of purgation, proof by compurgators and wit- nesses, " ex parte " proof, and confrontative proof (wherein a hearing is given to both sides). There was also often torture. '^ Cf. Osenbrüggen, pp. 377 et seq. 1^ "Sachsenspiegel", 111,56 § 3. "Sehwabenspiegel", 126 (Lassberg). " Landrechtsbueh Ruprechts von Freysing", Cap. 88. As to this cf. especially Abegg, "Zeitschrift für Deutsches Recht", vol. 15, p. 76. On the other hand the executioner often decided the method of death punish- ment. Abegg, p. 58, etc. 1' Placing in a boat without helm or rudder is mentioned in the Sagas. Grimm, p. 721. Cf. also record of the Cloister F'rauen-Chiemsee {Grimm, " Weisthiimer", III, p. 671), where a proceeding of this sort was ordered, in a case where the judge before whom the offender was triable was not on hand. As to this, cf. Osenbrnggm, p. 341. ^'' As e.g. in capital punishment by hanging, if the rope used in hanging the accused broke. Abegg, "Zeitschrift für Deutsches Rechts", vol. 16, pp. 317 et neq. In Zürich in the 1.500 s and 1600 s the punishm(>nt of drowning for the killing of children was so done that to hv saved was not impossible, and thus th(» punishment assumed the form of a judgment of God, Osenbrüggen, p. 348. At times some influence may have resulted from the idea that the execution as a judicial act had come to a formal end. Cf. the case in Basel given by Osenbrüggen, p. 353. "' [Consult Vol. V of the present Series, Esmeins " Historj' of Continen- tal Criminal Procedure." — Ed.] 117 § 39] THE MIDDLE AGES [Part I, Title II The old accusatorial procedure ~ is still found, hut of a kind so deformed hy a preliminary official investigation hased on torture that it contained only a shadow of its former character. There was also a number of popular turbulent methods of procedure for ■cases where the ofi'ender was apprehended in the act and for cases having to do with persons of bad reputation.^'^ Moreover, it •was not with injustice that the author of the " Klagspiegel " ^^ speaks of " the foolish old hen judges in the villages ", better qualified to sit in judgment on the cases of " knavish chickens " and " other rascally cattle ", than cases of offenses under the criminal law. In the year 1496,"'^ almost immediately after its organization, the Imperial Supreme Court, having reference to the complaints coming almost daily from all parts of Germany about the injustice and arbitrary actions of the criminal courts, addressed itself to the imperial assembly sitting at Lindau in the following significant words : ^'^ " Item so teglich wider Fürsten, Reichsstet vnd ander aberkeit in klagweis in einem gericht an- bracht wird, das sy leute unverschuldet an Recht vnd redlich Ursach zum tode verutheilen vnd richten lassen haben sollen vnd durch die Fründt rechts wider dieselben begert ... ist bescheids not, wie es . . . am Cammergericht gehalten werden sol." The Reichstag of Freiburg in Breisgau in 1498 thereupon passed the fol- lowing decree : "^ " Auf den artickel, dass viele zu dem tode one recht vnd unverschuldt verurteylt werden . . . wirdet not seyn, deshalb ein gemein Reformation und Ordenung in dem Reich fürzunemen, wie man in criminalibus procediren soil." 22 As appears in the "Nürnberger Halsgeriehtsordnung." 2' The so-called "Leumunds verfahren." 2* Rubric "Quando judex per se inquirere potest", fol. 113a of ed. 1533, Strassburg. 25 Müller, "Reichstheatrum", II, 78, 446. Cf. Brünnenmeister, "Die Quellen der Bambergensis " (1879), p. 1. 26 "Insomuch as complaints are daily brought in court against princes, states of the realm, and other authorities, that they cause people who are innocent under the law and against whom there is no genuine case, to be sentenced and condemned to death, and whose friends demand that justice be done . . . there is need for instructions as to what course shall be taken by the court." " "Neue Sammlung der Reichsabschiede", II, p. 46, " Reiehsabschied zu Freiburg", § 34. "As to the claim that many who are innocent are sentenced to death in contravention of the law ... it is necessary to undertake a general reform and regulation in the empire as to procedure in criminal matters." 118 Chapter V SCANDINAVIA AND SWITZERLAND IX THE LATER MIDDLE AGES A. Scandinavia ^ § 39a. Early Customary Law. Primitive Feuds and Kin Vengeance ; Private Fines ; Limitation of Pri- vate Vengeance ; Church Mulcts. § 396. The Provincial Codes. Growth of Public Au- thority ; System of Public and Private §39c. Fines ; Procedure ; Ac- cessories ; Elements of Money Forfeitures ; Forty-Mark and Three- Mark Causes ; Felo- nies ; Other Public Punishments. Penal Legislation a.d. 1300-1500. § 39a. Early Customary Law. Primitive Feuds and Kin Ven- geance. — There is perhaps no other branch of law in the history of which the progressive development of the social state and public authority, and the reconstruction of society, are so plainly traceable, as in criminal law. Here individual independence is perceived to yield and gradually become subjected to State control. Public right presses forward alongside of private right until it takes the lead and dominates. This development takes place mostly by way of customary law. Its course can not be positively as- signed to definite periods, but is nevertheless clearly evidenced both by historical testimony and also in the sources of the law. For ancient times, the Sagas and the Icelandic Gragas, with the earliest sources of Norwegian law, reveal much to us ; and in the later pr()\incial codes are found many traces which markedly refer ' [§§ 39 a, b, c, are from Stem.\nn's "Den Dansko Rotshistorie," and auxiliary sources, named in detail in the Editorial Preface. The portion from Stemann is translated in full, omitting only the footnote quotations there given from the Scandinavian texts, and an occasional passage of detailed illustration ; from the other sources a few gaps have been sup- plied by the Translator's condensation and insertion. — Ed.] 119 § 39rt] THE MIDDLE AGES [Pakt I, Title II to tlu' early conditions no longer prevalent ; the new order of things forms in its turn a transition to the system of later legislation. A leading work on the history of criminal law, including the na- tions of the North, and largely utilized in later treatises on this subject, Wilda's " Straf recht der Germanen ", - emphatically disputes the assertion, advanced especially by Uogge in " Das Gerichtwesen der Germanen", ^ that a real law of crimes and l)unishments was almost unknown in primitive ages. But the conflict between these views is not so great as it appears to be. Only the entire absence of such a law in early times is by the one view denied, while by the other only a relatively small importance and a limited sphere are ascribed to it. It must be acknowledged that, when the historic age commences, faint traces are already found of a law for the punishment of crimes in its modern sense. Crime in modern penal justice is considered chiefly as an infrac- tion of the law in its objective sense, and punishment as a means of restoring public law and order. But the sole concern in the early ages was the individual's injury ; it was left to the injured party himself to procure reparation, both for the outward material dam- age inflicted and for the personal contumely. This authority to wreak vengeance (" Hsevn ") on the offender, by the aid of his kin if needed, was limited only by public opinion, founded on the natural sense of right and custom and usage. A feud, or relation of hostility, arose between the wrongdoer and the sufferer, and their respective blood-kindred ; this could be settled by reconcilia- tion alone, which frequently w^as attainable only after a feud (" Feide ") of long duration. Such a pact was generally condi- tioned on the payment of a fine (" B0de ") ; this was deemed to be not only reparation for the physical damage, but also satisfaction for the impeached honor. The narratives of various events, found in the Sagas (especially from the close of the 800 s to the commencement of the 1100 s), which undoubtedly have a historical basis, describe almost exclu- sively gross acts of violence and wrong, mayhem and murder. In the latter case it behooved the kin of the slain to wreak blood vengeance (Sagas of Niala, Viga Styrs, Heidaviga, Grettis, and Vatnsdaela). While it was held to be a sacred duty not to leave unavenged the slaying of kin, and hence the acceptance of a money satisfaction was deemed dishonorable, nevertheless, the circum- stances were taken into consideration, especially the provoca- 2 HaUe, 1842. » Ibid., 1820. 120 Chapter V] SCANDINAVIA [§ 39a tion and the mode (whether the crime was committed in the heat of passion or dehberatelyj, and also the conduct of the wrongdoer subsequently. On this latter point the early law-texts of Sweden and Norway contain extensive provisions. Thus, under the Gotland law-text,^ the slayer could tender reparation for the life only after a year had elapsed ; during this period he, with his nearest rela- tives, must at first abide in hallowed places of refuge, or sanctu- aries, and thereafter in distant and unfrequented localities, in order to escape the " Haevn ", or exaction of the toll of blood for blood. Should the tender not be accepted at the expiration of that period, he must resume such a mode of life for the two following years ; but the law expressly declares that the acceptance of the " B0de " (or, amount of penalty and satisfaction) after the lapse of the first year should not disgrace the family kin. By the Östgöta law-text ■" the tender could be made only after three years ; and similar re- quirements are contained in the early Gula-thing law-text.^ Un- til expiation is made (according to Andreas Suneson) " the murderer must absent himself from the sight of his opponent, lest he offend him by his presence. Private Fines. — Reconciliation was made either at the " Thing " or in front of the court (" Retten "), and the amount depended on the parties' negotiations. Instances are noted where this determi- nation was left to the party wronged or to the kin entitled to prose- cute the cause ; and in some isolated cases the amount was fixed by the guilty one himself (" Sjaelfdsemi "). As a rule, however, settlement was negotiated by agents appointed by both sides (" Voldgiftsmsend ", the men of the violence-gift), who were chosen by the relatives or chieftains. In order that the ofl'cnder might present himself in safety at the peace parleys, proclamation was made for his immunity from attack, confirmed by a solemn oath from the hostile party (" Grid," " Gruth "), for his journey forth and back, and for the entire time until the affair should be decided. For such guaranties there occur formulas (" Gridamal ") in the Sagas and the Gragas ; and even as late as the provincial (\)des this warrant of security is referred to ; its breach being termed a " deed of infamous treachery." ^ * [Circa a.d. 1300 — Transl.] 5 [Circa a.d. 1300 — Transl.] « [Circa a.d. 1200 — Transl.] ' [Archbishop Suneson, whose writings (a.d. 1206-1215) are noted as one of the sources of Scandinavian law, in Professor Hertzberp's account, in Vol. I of the present Series (Ch. 1. Part VII, § 14. p. 54.')). — Transl.) * "Heres occisi . . . debet adversariis suis interim pacem promittere 121 § 39al THE MIDDLE AGES [Pakt I, Title II After reconciliation made and the mulct paid over, it was incumbent upon the transgressor and his kin to make the " oath of equality " ('' Ligheds-Eed"). This declared that if he himself had suffered the wrong, he would have entered into accord on the same conditions; the intent being to grant to the wronged kin a bill of honor, by the offender's express declaration that there was no disgrace in accepting the mulct instead of demanding revenge. Thereupon, the treaty was affirmed by the surviving kin with another oath (" Trygdeed "), securing for the guilty party and his kin full peace and safety for the future. This oath, for which a very solemn formula is prescribed in the Gragas, was given by the law-text of Skaane,^ only in cases of murder, while the oath of equality was also given in cases of reparation for wounds and blows. The community's public authority interfered only where the crimes were directed not against individuals but against all the people, or where, by reason of the perfidy or treachery of their com- mission, they were deemed extremely vile and heinous. Otherwise, the community's only concern was that the cause was conducted in accordance with custom and usage. It may be assumed, how- ever, that the members of the " Thing," in some instances, when the proceedings were held there, brought some influence to bear on the accord and reconciliation. Limitation of Private Vengeance. — At an early period, notably after the introduction of Christianity and under the influence of the priesthood, bounds were placed on the practice of exacting per- sonal revenge, — partly as to its extent (permitting it only for delib- erate and grave crimes) , and partly as to the time, place, and manner. Thus, it was authorized by the Gragas, in certain instances, only at the very time and place of the offense (" a vighvalli ") ; in others, at the next general assembly (" Al-thing "). But in all cases it was incumbent upon the avenger, after slaying the offender, im- mediately to announce his act to his neighbors and witnesses, who were thereafter to testify at the " Thing " ; for he was bound to enter the cause at the next " Al-thing " and make complaint against the deceased, in order to have judgment whether he was to et eandem in signum indissolubilis firmitatis contingendo manu sua manum alterius alicuius roborare, et hoc facto ad maiorem seeuritatem aliquis de prudentioribus debet, paeis illius deum custodem et factorem cum Sanctis omnibus, cum apostolico, cum rege, cum pontifiee. cum iustis omnibus invocare, execrari vero quemlibet et anathematizare, qui promisse paci presumpserit obviare" (Suneson, V, 6). ' [The modern province of Skane, in southern Sweden. — Traxsl.] 122 Chapter V] SCANDINAVIA [§ 39a be proscribed and outlawed for his deed. Another cause con- tributing to Hmitations of the " Hsevn " (or revenge) was the development of the principle of " peace ", or " fred ", — already known even in the mythological age. This signified an inviolate peace proclaimed over certain places and periods. The practice was gradually extended, so that every man was immune and en- joyed in his home and premises the rights of a sanctuary (" Huusfred "), or in his ship (" bunka? brut "), or at the cus- tomary public meeting-places (including the Eyre and the journey thither and back), viz. the market, the church and churchyard (and going to and fro), as well as the " asylum courtyard ", an- nexed to the churches and monasteries. During " hallowed " periods of the year, also, the " peace of God " prevailed (" pax ecclesiastica "). Even as early as the reign of Canute the Great his Church law mentions, in connection with the Church peace, the king's peace. Valdemar II promulgated an order for a special peace, to prevail ever\'where in the presence or vicinity of the monarch ; and this also appears in the law of Skane. While the right of " Hsevn " (vengeance) was thus gradually confined in divers modes, and the wrongdoer on the other hand was afforded the opportunity to ward oft' retribution by negotiating for reconciliation, there came about eventually a customary law regulating the amounts of the fines and damages in cases of various oft'enses, until a definite " B0de "-system was developed. In cases of grave wrongs the injured party was still generally permitted to choose between accepting the tender and wreaking vengeance. But even here curtailments were made. Self-redress more and more ceased to be viewed as a right or even as permissible, as the conception and treatment of crime and its logical consequences gradually changed. Such heinous crimes came already at a very early period to be considered not only as private oft'enses but also as breaches of public peace and order. Fines must be paid not only to the offended individual but also to the king. Thus the " bode " was no longer merely a reparation and satisfaction for the injured party, but also a penalty for the breach of the general peace. When the oft'ender failed to pay the amount of the penalty, or when his guilt was so great as not to be redeemable, he was placed under ban and doomed to be an outlaw, or punished by death or by corporal suffering. These public retributions, which for a long time figured as exceptions to the general practice of " bode "- payments, became in the course of time constantly more frequent. 123 § :i*)a] THE MIDDLE AGES [Part I, TiTLE II Church Mulcts. — In these changes (as already noted) the ec- clesiastics exercised considerable influence. This was partly due to the social injfluence of the teachings of the Roman Church, in which crime and punishment were conceived as offense and atone- ment before God ; and partly to the special ecclesiastical penal code, which in the course of time more and more extended its sway. Canute the Holy (so Saxo relates) bestowed upon the bishops and priests exclusive jurisdiction over misdemeanors committed di- rectly against religion and the Church. Under this class of of- fenses, the Church laws of Skane and Sjselland ^° enumerate of- fenses against the peace of the Church or of God (" Ilielghsebrut "), against the person of the priest and church property, and other direct infractions of the Church canons. The priest also exer- cised co-ordinate jurisdiction with the regular authority in other grave penal causes. The ordinances referred to provide that for breaches of the peace of the Church the mulct should be three marks ; and if the of- fender did not possess that amount, it behooved the parish, in Skaane, to pay the priest for him, while in Sjselland he was sub- jected to a severe fast. Other misdeeds calling for Church mulcts were church robbery, incest, adultery, manslaughter, maltreat- ment of church officials and their near relatives and homicide generally. In most cases, money penalties were exacted. Hein- ous crimes were punished with excommunication and anathemas ; these being of two degrees, one excluding the offender from all intercourse without the church as well as within, and the other only from the actual church and its ministrations. This ecclesiastical jurisdiction was generally exercised by the bishop on his regular circuit through his district; the matter being brought to his at- tention upon complaint or by general rumor. For secret crimes, the Church law provided that where the criminal, before being accused, had admitted the crime in the sacrament of confession, and received a certificate of the priest, he should be exempt from further punishment ; indicating that by such confession, and the penance therein imposed, he was deemed to be restored to grace with God and the Church ; so that even where the crime later be- came revealed, he was not amenable to punishment at the hands of the prelates, and the latter sought to extend this immunity so as to bar the secular power from action. " [Circa a.d. 1170. — Transl.] 124 Chapter V] SCAXDIXAVIA [§ 396 § 39/^. The Provincial Codes.' Growth of Public Authority. — In the provincial Codes not only do numerous traces remain of the " Haevn," and especially the blood vengeance, as an important factor in the system of retribution, but it is also frequently referred to as the very reason for some of the new provisions. It is appar- ent from the context that private revenge, while no longer deemed compatible with the social order, was nevertheless still so deeply rooted in the common conscience that the taking of a life on that ground was not classed with other offenses of the same order, — at least where the deed was not so done as to bar it from condona- tion. This conception appears in the procedure and oaths required of the guilty party in negotiating for reconciliation, in order to es- cape the retaliation, and also in the determination and di\'ision of the fines and damages. The laws expressly refused the excuse of " Ha?\'n ", where the slaying was a breach of a pledge of peace during pending negotiations, or where reconciliation had been made and satisfaction accepted ; in such cases the deed was punished as one without provocation. But under the prevailing general rule, though a fine was incurred by blood vengeance, the ordinary punishment for slaying a man, viz. outlawry, was not inflicted. The Jydske Code,^ distinguishes such homicides and those done in perilous necessity or self-defense, from those committed on an inoffensive victim or " causeless man." Though self-defense thus relieved from punishment, it did not excuse the pa>'ment of repara- tion ; it was sometimes a matter of doubt whether an act done in an affray was one of defense or of revenge. Indeed, some expres- sions in these laws seem to assume that the injured party had the right of choice between prosecuting the offender or practising ven- geance, which right the law aimed to restrict. Only in one case do any of the provincial Codes expressly authorize a deed of ven- geance on the spot, — -the wronged husband had the right to kill or wound the adulterer while in the bed itself. This limitation of the practice of private revenge may be con- sidered as the first important step in the transition from the con- ception of crime as an aft'air of purely i)rivatc right to tluit of the later penal system. Similar marks of transition are also found in other provisions of the provincial Codes. The basic i)rincii)lr > [These codifications date during the 1200 s in Denmark. Norway, and Iceland, and during the 1300 s in Sweden. See Chap. II, Part V'll, pp. 547-5.5Ö, Vol. lof this Series, "General Survey." — Tran.sl.I 2 [a.D. 1241. — Transl.) 125 § 30;^] THE MIDDLE AGES [Part I, TiTLE II advanced by Archbishop Andreas Suneson, that the power of the State inflicts punishment in order to correct the evil will and intim- idate from offenses is recognized in some passages of the preface of the Jydske Code, unmistakably of canonical origin, yet this doctrine is not practically carried out in the Code, for the reason that the view-point of private right still appears as mainly predom- inant. Public authority, nevertheless, asserted itself in various directions ; its right and duty is recognized not only to procure reparation for the injured party, but also to punish the wrong- doer, in order to effect a restoration of the peace and an atonement for the offense itself. System of Public and Private Fines. — Under the provincial Codes, an offense may ordinarily be discharged by " B0de ", signifying both fine and reparation ; outlawry or other punishment is inflicted only for heinous crimes. Distinction is made between three classes of infractions : the first including all ^\Tongs for which satisfaction is paid to the party injured, only ; the second, all acts for which is incurred a fine payable to public authority ; the third, such breaches of right as are not atonable with money payments. These differences, which also determined the mode of accusation and prosecution, depended on the subjective nature of the act and other circumstances. Public penalties were imposed only where there w^as deliberation and guilty intent ; for these alone made the act a breach of public order. Under the general rule, therefore, fines were not payable to the king or the bishop for accidental harms ; but here the in- jured party, as a rule, could demand the " B0de " ; this reparation being due for the harm done him, whether with or without intent, by the person causing it. Thus, though a fine might be required in addition to the damages, and though the law of many localities made no distinction in this respect between intentional and un- intentional acts, it is nevertheless apparent that the relation be- tween the act and its effects, as well as the nature of the omission or carelessness, were taken into consideration. Hence the distinction between the " act of hand " and the " handless risk" (" Handagserning " and ''handlös wathse "). The latter included primarily such injuries as were not caused by any one's personal activity, but by cattle or inanimate things which were chargeable to some one's safe custody (in which cases a small penalty was payable) ; it also included other harms attributable to some prior personal act having a consequence not anticipated. 126 Chapter V] SCANDINAVIA [§ 396 This difference of degree of nej^ligence is not expressed in general rules, but it is nevertheless noticeable in specific provisions. Thus, in a case mentioned in the earlier law-texts, where several men are cutting down a tree and its fall causes the loss of a life, the other laborers must pay three marks to the nearest relative of the de- ceased ; this provision, however, being limited, (according to Erik's Law of Sja^land,^) to cases where the accused had ceased to take part in the task and left the spot. Where the tree slips from the hands of any one, the latter pays the total fine. For death or wounds caused by a weapon not owned })y the user, the owner is fined three marks if he loaned it for that purpose, or a smaller amount if it was taken without his knowledge or against his will. A fine is likewise imposed upon one who so negligently places his weapon that it falls and wounds or kills another ; the Jydske Law extending this rule to chance injuries from a weapon held in the owner's hand. For death or personal injuries suffered from the overturning of a wagon or the stroke of a rider on the road, the driver or rider is compelled to pay either the full " B0de " for a deliberate act, or a less amount according to the degree of his care- lessness or the contributory negligence, if any, of the victim. Similar rules came into vogue for injuries to cattle. The fine (" B0de ") paid to the injured party being regarded as reparation for harm, and that paid to public authority as a pen- alty for the act itself, the former was incurred by parents for of- fenses committed by children, but not the latter, except in later legislation for manslaughter. Procedure. — In all cases where the offended party alone was entitled to exact " B0de ", it was left wholly to him whether he should accuse and prosecute, or negotiate for reconciliation, or waive his rights and pardon the wrong. Where public penalties of punishment were ordained, in addition to private damages, the in- jured party was primarily entitled to institute the charge ; but his right to settle or abandon the case was limited in various ways, in the interest of pu})lic authority. The rule is accordingly laid down in the law of Skane, King Erik's Law of Sjjelland, and other Northern legislation, that after reconciliation made for a wrongful act as being accidental, the royal official was emjiowered to require verification by oath that the act was not wilfid ; the injured party to be the first of the defendant's witnesses. Moreover, the au- thority of the official to prosecute immediately after an ofi'ense 3 [About A.D. 1250. — Transl.) 127 § :i!t6] THE MIDDLE AGES [Part I, Titlk If or to carry on a cause instituted by a private person, is recognized, by the law of Sjielland especially, in sev^eral provisions ; evidencing that this power could be exercised to a considerable extent. And if, in general, the right of accusation belonged to the private party, and tliat of the king's representative was only subsidiary and ex- ceptional, yet it appears from specific provisions that the latter could commence or intervene in the proceedings on almost any occasion, wherever there was reason to fear that the jurisdiction of the king would be lost because of the unw^illingness or inabilit\' of the private prosecutor to institute or proceed wath the action. This privilege applied to all cases of murder and " forty mark " offenses, wherein the complainant either sought to wreak personal vengeance or was unable to start or follow up the prosecution. So also, in cases of wounds, for which the victim had failed to accuse or proceed in the cause, the official could prosecute the offender, and in addition the injured party was fined three marks for his laxness. In all these instances, however, official complaint was conditioned upon the wrongful act being an undoubted fact and notorious throughout the " Herred " or district. Larceny and robbery w^ere subject to official prosecution only when suit was instituted but not follow^ed up by the victim ; the latter then being also subject to fine. While the object of such public action in the foregoing cases was solely that of enforcing the king's prerogative to exact fines, without controlling the relation between the parties committing and suf- fering the oftense, other cases are enumerated in the laws in which it was the duty of the public official to assist the complainant, when a helpless widow or minor, or a person sojourning abroad without relations able to prosecute his claim. Then (as well as in all cases where the offended person had not forfeited his right by laches), it was the duty of the official to secure satisfaction for the private party first and then for the king. Crimes subject to outlawry and not atonable by money fines, were to be prosecuted by the king's official ; and for these the pri- vate victim was permitted neither to accept damages or renounce his right of vengeance, without the consent of the king. In the region of the Jydske law, a pact between the inhabitants and their bishop, made with royal sanction, in 122S, indicates that a rule here prevailed, similar to that of Sjselland, that official prosecution could be made for wounds only when the victim had made a complaint, or where the misdeed was open and notorious ; for the bishop in this agreement surrendered the power theretofore exercised by him , 128 Chapter V] SCANDINAVIA [§ 396 of instituting, by his delegate, but without such condition prece- dent, a proceeding against sucli an assailant for infraction of church rules; this prerogative evidently having been considered an ex- ception. In the Jydske Code, however, this canonical prerogative was later restored, in disregard of the pact, while the right, con- ferred by the latter, to summon into court both the offender and the injured party if they had made a reconciliation outside of the bishop's court, was retained. In the Articles of Thord Degn and in Erik's Code of Sjselland a provision appears, imposing a fine of three marks to the king on the party wounded for failing to pro- ceed with his cause, and further authorizing the " Fogede " (the royal bailiff) to vindicate the right of the crown where the injured party fails to enter complaint. A party robbed who failed to pur- sue his action before the twelve true men, after having instituted it, was amenable under the Jydske Code to a fine of three marks to the king and the accused. Public accusations for this crime seem to have been as rare as for larceny. Even in manslaughter this seems to have been the case, notwithstanding the kin of the de- ceased had failed to proceed with their cause ; but here, also, a larger fine for the king became due where reconciliation was made outside of court. In the Jydske Code there is in fact nothing indi- cating certainly that the public authority was to institute proceed- ings even for felonies beyond the degree expiable by fine (" Ub0de- maal ") ; and it is very doubtful whether the Code, in its provisions for the infliction of punishments, does not assume either that a previous private complaint was made or that the offender w^as apprehended in the act and brought to the " Thing." This Code, which is more harsh than Erik's Code of Sjtelland in its punitive measures, would seem thus not to authorize public and official accusations to the same extent as the Code of Sjjelland. Accessories. — • Where several persons had together committed an ofl'ense, they could clear themselves with a single fine by hold- ing together in declaring that they had been "equally good ", where it was only an issue whether the act was an accident (" urn the wilia' samsen wsere, tha b0t8e ikky msere sen ense b0t8er "). Otherwise, the general rule was enforced that every participant in the act, including mere accessories, should pay the full fine. For grave crimes punishment was meted out even to a companion of the wrongdoer, who harl taken no part ii: the commission of tiie olVense (" in comitatu " ; " i fierth oc i fylgi "), — a fine of three marks to the private complainant and a like amount to the king. This 129 §39?;] THE MIDDLE AGES [Part I, Title H provision was inserted in the proclamation for Skane of Canute \'l, December 28, 1200, for cases of murder, and became thereafter l)art of the Code of that province ; and a simihir ruh' was api)hed, under tlie Sjailland Codes, in all cases too grave for mere fines and in all " forty-mark suits." The reason for this provision was un- doubtedly tlie not infrequent practice of those times for a bandit to sally forth with a large retinue of his kin and allies, generally armed, to commit the plotted deed (especially to fulfil a feud of vengeance), when the mere presence of his companions served as his support. An example of this doctrine of punishing an accessory before the fact is presented in the case (referred to already) of one person lending another a weapon for the purpose of murder ; by all the provincial Codes he was amenable to a fine of three marks. Coun- seling and abetting misdemeanors was penalized only exception- ally ; Erik's Code of Sjselland mentions only the taking of life, when the instigator was fined nine marks ; but the Code of Skane ex- acted this penalty, to the extent of three marks, when any one by his advice brought about the imprisonment of another or influenced a magnate to do violence to another's property. — The respon- sibility of the master of the house (" Husbonde ") for the acts of those under him was recognized. For misdeeds done by his serfs (" Traelle ") or free servants by his direction, and in the case of the former, by his suggestion, he was adjudged the transgressor. Furthermore Yaldemar's Code of Sjselland exempts from fine one commanding his thrall, or free follower, to assault another, where the command is not carried out. This is not inconsistent with the Skane rule, holding that he who by force is prevented from strik- ing another is as guilty as if he had carried out his intent ; nor with that of the Jydske Code, which hkewise condemns an assailant whose blow misses and reaches only his victim's garb or horse. The mere attempt w'as, at this stage of the law, not punished, unless it had got as far as an actual attack, as in the last-mentioned cases. This doctrine on the whole represents the general tenor of the various provisions on this point in medieval Germanic and Northern law. Elements of the Money Forfeitures. — The essential distinction made between private and public fines, the former being regarded as restitution and damages for the subjective injuries of rights, and the latter as reparation for the objective infraction of justice, is pointed out by Archbishop Anders Suneson. He also clearly separates the satisfaction obtained by the oft'ended party for the 130 Chapter V] SCANDINAVIA [§ 396 personal affront, with the indeterminate compensation incident thereto, from the reparation for the actual material loss sustained, both of which elements enter into the private " B0de " (" duplicata quadraginta marcarum satisfactione, una regi pro violatione iusticie alteraque pro irrogatione iniurie "). This difference is also evidenced throughout the Codes, so that the term " at b0tce " (to atone ; to forfeit money as punishment) implies paying the debt for the dishonored right, as opposed to the phrase " at gja?Ide " (to give equivalent), signifying a making good of the property loss. Both terms, however, are used for each conception, whence doubt often arises as to what is included in the action. In determining the amount of the fine, the basis of calculation was one silver mark (eight ounces of silver), which was of equal value to eight " 0re," a coin exchangeable for three " ßrtuger," and the latter in turn being ten " Penninge " (money; pennies). In course of time, however, as the weight of minted coins was de- creased, this relative value changed, and in the period of the pro- vincial Codes one silver mark equaled three marks in pennies. Unless the term " silver mark " was expressly used in provisions as to fines, one mark signified the minor coin standard. Some exceptions to this are noted ; but it would appear that the king's fine was not affected by fluctuations in the relati\'e values of coins, except by the king's grace. The more ancient practice of making restitution by goods instead of money, such as cloth or cattle, re- garding which the earliest legal sources of Norway and Iceland contain extensive regulations, was still largely retained. Where the amount of physical damages sustained was easily ascertain- able, the legal private fine could be demanded aside from such compensation ; but where the loss was irreparable, as in cases of injury to limb or affront to personal honor, the pecuniary for- feiture included also satisfaction for this element, and the amount consequently varied considerably according to the nature and ex- tent of the wrong. Instances appear of fines from one " Ore " to six marks, and by cumulative fines for several injuries there was sometimes paid a sum of five siher marks or fifteen penny marks. This latter combination, however, according to Suneson, was made only where charges of manslaughter and robbery were joined, or several injuries to limbs ; the complain- ant in other cases having to choose a particular charge, thereby excluding claim for other fines, yet still being entitled to be reim- bursed for his actual loss sustained. 131 § 396] THE MIDDLE AGES [Part I, Title II Forty-Mark and Three-Mark Causes. — Distinguished from these jKirels- prixate mulcts, there are found in all the provincial Codes two fines, of forty and of three marks respectively, which were more in the nature of punishment, ofi'enses being thus divided into " forty-mark " and " three-mark " causes. The first class included breaches of a special peace, that is, mis- demeanors which were not of the degree of felonies beyond expia- tion by pecuniary forfeitures. Among these are mentioned the following in Erik's Code of Sjtelland, (whose provisions are in part similar to those of the other Codes of the period) : (1) manslaughter, wounds and other mayhem, in fulfilling a feud of vengeance on one to whom the assailant had made a guaranty of peace and immunity, or who had promised to pay fines and damages ; the acceptance of such a promise and the reconcihation thereby presumed operat- ing as an implied warrant of safety ; (2) breaches of the peace of the church and eyre or " Thing " by wounds or blows, and murder on the road to the assizes ; the Jydske Code, however, declaring the latter crime, as well as murder committed in the presence of the " Thing," to be too grave for pecuniary amends ; (3) breach of the peace of the market by manslaughter, wounds, or blows; (4) breach of the peace of the home and hearth by violence and ravage, including, in this class, similar havoc wrought in any one's ship, and the taking of a person's life while in his shore booth; (5) imprisonment, kidnapping, and rape ; the latter, however, being declared by the Jydske Code too grave an offense for ransom by fine ; and (6) willful arson of the house, mill, or other struc- ture of another, except where attended with loss of life. The Jydske and Skane Codes also assign to this degree of felonies a breach of the king's peace by wounding or maltreating another while the king was in the same " Herred," or district, according to the former Code, or in the same province, according to the latter. Robbery of corpses was also included in the former Code, while the latter provided a penalty of three marks, and Erik's Law of Sjsel- land one of nine marks for this offense. These forty-mark mulcts were regarded as an expiation for the breach of the public peace, and the offender must also pay the private damages for aft'ronts and losses, varying according to the nature of the act ; this principle also being applied to his companions, who were subject to the pub- lic fine of three marks. There was furthermore a general rule that where the injured party was entitled to these forty and three marks, similar amounts were also to be forfeited to the king by the 132 Chapter V] SCANDINAVIA [§ 306 chief aggressor and his accessories. All forty-mark prosecutions were disposed of at the " Land-thing ", which referred them for investigation to a body of its members, resembling a jury, termed in Sjaelland " Xsevninger " and in Jylland " Sandemsend " (true men). The only public fines accruing to the " king's right," other than the above forty-mark cases, were the three-mark penalties, except cases of self-redress, where the amounts varied. These three-mark fines, which are frequently inserted in the Gragas and the Codes of Norway (the latter terming them " full right "), are imposed not only for crimes but also in certain civil cases. A peculiar feature is that they were at times both a private and a public pen- alty and in other cases only one of the two. In the first instance, the payment was generally three marks to the complainant and a similar amount to the royal exchequer ; the latter fine always be- ing fixed at such amount, while the former occasionally varied between smaller and larger amounts. The double penalty was in- flicted chiefly in the following cases: (1) robbery and trespass (with some exceptions) ; (2) accessories, presumed from compan- ionship (already explained) ; (3) wounds ; the payment to the in- jured party here varying from six marks (when the weapon entered the body or limb or penetrated it completely), to three marks (for lesser injuries). Under Canute VI's Ordinance for Skäne and the Skane Code, one guilty of inflicting wounds incurred always a royal penalty of three marks; whereas in Sjaelland the public fine was imposed only where the wounds were so serious as to necessitate the calling of the surgeon. The Jydske Code, while silent on this sub- ject, declares that for wounds inflicted by chance no fines are paya- ble to the king. (4) For the slaying of cattle, there was a double fine of three marks, one for the king and the other for the owner. (5) In Sja-lland and Jylland, for theft of articles worth less than half a mark, where the thief was caught in the act or with the stolen goods in his possession, three marks went to the king. (()) In all provincial Codes there were several provisions for this double fine for " impeding right" (contempt of court), — where a person le- gally summoned absented himself without sufficient cause from the " Thing", or in other mode displayed arrogance or refused to fulfll a duty imposed by law ; where a person removed timber which he had cut on another's premises, after prohibition by the owner ; where an oath-bound promise was not performed. So, too, the grantor of land, unable to deliver good title, in Jylland had to 133 § 396] THE MIDDLE AGES [Pakt I, Title II ])ay tlic double three-mark fine, l)ut in other districts only to the buyer ; on the other hand this fine was to be claimed by the king alone when the " old men " (witnesses to title j would not make oath. Tn contrast to the finable misdeeds stand those heinous crimes, which could not be atoned for by money, but invoh^ed outlawry or some other public punishment. These are termed in the pro- vincial Codes, both of Sweden and of Norway, unfinable cases (" Orb0t{emal "). Being generally heinous breaches of peace and faith, or vilely treacherous in their manner of commission, they are termed " infamous deeds " (" Nithingsvaerk "). On the question which transgressions were to be classed of this degree, there was more or less conflict between the various Codes ; and this fact is certainly responsible largely for the gradual change in the penal system. Outlawry. — ^ The term "peace", in legal phraseology, like the term " right ", has both a subjective and an objective meaning. It signifies in part the position of the individual, as entitled to the recognition by others of certain rights, w^hich society has under- taken to protect against unjustifiable infractions, and in part the general public system of law and order. Every violation of a right thus imports theoretically a breach of the peace in this double sense. But in a less developed notion were included in this double sense only gross violations of right and such acts as involved the breach of some specially important class of peace. The of- fender who by his act had forfeited that status in society which entitled him to its protection was declared " without peace " (" fredl0s ", " utlagar "). The basic principle therefore in the early Northern legal system was that whoever would not recognize the rights of others, should not himself enjoy any. So long as self- redress was regarded as permissible for the injured party, the of- fender's " peacelessness ", at least in relation to the injured party, ensued as an immediate consequence of the misdeed, without any necessity for bringing the cause before the " Thing " or obtaining judgment. But the gradual limitation and restraints imposed on private vengeance, as already described, show that quite early the rule came into vogue that outlawry should be incurred only upon a decree of the men convoked in the " Thing." Furthermore, the outlawed oft'ender was allowed a certain period for escaping from the revenge thus sanctioned ; being immune from attack for the 134 Chapter V] SCANDINAVIA [§ 396 entire day when the decree was promulgated and the succeeding night, in Skane and Sj;ielland, for a (hiy and a month in Jylland, where the period was later shortened to three days and nights. At the expiration of this respite, his deprivation of the peace be- came effective with all its strictness ; he was in total outlawry. While a price was not placed on his head (as in the Icelandic Grä- gas) , he was exposed to the feud of his opponent or the blood ven- geance of the latter's kin ; and according to the general rule (as Archbishop Suneson records it) his life could be taken by any one. He was further ostracized from all intercourse with the members of the community ; every one was prohibited, under the three-mark penalty, from harboring him or in any way dealing with him ; even the monastery sanctuary was barred to him as an asylum. His possessions escheated to the king, after his victim or the heirs and relatives of the latter had received satisfaction ; and it would appear, from the ancient Danish sources, as well as the earlier Swedish and Norwegian codes and the municipal Ordinance of Slesvig, that this forfeiture for what were classed as " heinous crimes " extended both to real and personal property. The later provincial Codes, however, limited this forfeiture to personalty only, on the principle that none can forfeit his landetl estate, or more than his personal effects ; the only exception (named by Anders Suneson and the Code of Sjnelland) being the crime of treason, and this provision was adopted in the Ordinance of P>ik Glipping for Xyborg, in 1282, and in King Oluf's Charter. On comparing the later provincial Codes with the earlier Ordi- nances of Canute VI and ^'aldemar II for Skane, distinctions and changes will be noted, in that certain offenses, which had pre- viously been adjudged causes of outlawry, might now be cleared by fines (outlawry resulting only when these were not paid), while other crimes, once subject to fines only, were given heavier punishment than fines. The following is a list of the later out- lawry crimes, according to Suneson: (1) murder or wounding in vengeance of one who already had paid fines, or who had bci-n acquitted ; (2) murder at the " Thing " or (according to the Code of Jylland), on the road to the "Thing"; (3) murder in the cluirch or the churchyard ; (4) murder combined with ravage or breach of hearth and home ; the Ordinance of Canute VI and the Code of Skane, however, classing this crime as finable, and Sune- son limiting outlawry to murder committed by a guest on his host, or vice versa, — here altering the earlier rule; (.3) nnirder dur- 135 § 39b] THE MIDDLE AGES [Part I, Title II iiifj the presence of the king in the same province, in the Onli- nancc of Valdemar II and of Skänc, tlio Jylland law limitinf? the territory to the same " Ilerrefl ", and the ('ode of SjteHand being silent on the subject ; (6) for kidnapping the betrothed, wife, mother, sister, or daughter of another, there is a contradiction in Suneson; in one i)lace he classes this crime as subject to (jut- lawry, and in another place states that rape is a forty-mark of- fense (as also appears in the Skane, Sjselland, and the old Sles\'ig town laws) ; from a fragment of an earlier code of Skane, and the Code of Jylland, terming such crimes " heinous ", these changes would appear to have been made during the reign of Valdemar II ; (7) arson likewise is declared by Suneson to be punishable by out- lawry, but in another place (agreeing with the Code of Skane), by death, the latter being inflicted in Sj?elland and Jylland only where loss of life resulted from arson and the miscreant was caught in the act, — otherwise he could become a fugitive, losing the " peace ", while proved arson alone was a forty-mark case ; (8) failure to pay fines for manslaughter rendered the defendant an outlaw under the ordinances of Skane and Valdemar II, as well as in Suneson's ac- count; Valdemar's Code of Sjpelland also provides that the man- slaughterer, after having bought his peace from the king, should tender damages to the relatives of the deceased ; if the latter did not venture to insist that the crime was unfinable, he should be notified of the terms of his peace, outlawry attaching only upon his failure to pay his fines ; Erik's Code for the same province also imposed outlawry for failure to pay fines for manslaughter (though manslaughter was not in itself subject to outlawry) or for other forty-mark crimes. The distinction is here to be noted between two kinds of peace- purchase, — the one affording the offender a means of escaping outlawry in the first instance, and the other restoring him into peace after the latter had been lost, this being possible only by the consent of the king and of the offended party or his kin. Thus, the Jydske Code provided that where the murderer promptly tendered the lawful fines, the cause would not go to the " true men " (or jurors at the " Thing ") ; while if no tender was made, he was either outlawed or ordered to pay fines, according as the court found that he had taken the life of an offenseless man or had acted in self-defense or in justifiable feud ; but if he became " peaceless " or was found by the verdict to merit outlawry, he could regain his peace only by the consent of the king and the injured party. 136 Chapter V] SCANDINAVIA [§ 39& \Yhere the three-mark penalty (imposed in various civil and mis- demeanor cases for contempt and disobedience of the legal author- ities) was not paid, outlawry was also applicable ; but gradually for this default there came into vogue a minor degree of outlawry. This is found in the Code of Skäne for theft only, where the de- fendant has first been outlawed at the " Thing of the Herred " (" Mad})and ") ; he was excluded from all intercourse with the inhabitants of the " Hundred", and later was declared " without peace " at the " Thing of the Land " by reason of defaulting ])efore that assembly. This case is likewise dealt with in \'alde- mar's Code of Sjselland, the expression here used being " loss of personal security " (" ^Manhselg ") ; the same sentence also being imposed upon one charged with assault or robbery who fails to clear himself in some mode ; there is no mention, however, of proceedings at the " Land-thing." A similar " loss of personal security " is provided for in Erik's Code of Sjielland for those guilty of assault, who, when persisting in contempt, are finally de- clared outlaws by the " Land-thing." So the Jydske Code imposes a like penalty where amends are not made for wounds or claims for wages not satisfied. This judgment was thus evidently not in- tended as a punishment for the crime, but for the failure to submit to authority and as a pressure to enforce payment of the fines which would absolve the fugitive from the judgment. The out- lawry had effect only within the jurisdiction of the " Thing ", whether " Herred " or " Land ", l)ut the extent of the loss of se- curity differed, in that under Valdemar's Code of Sjtelland a general loss of legal protection seems to have resulted, whereas Erik's Code for that province and the Jydske Code limited the right of injuring him to the accuser only, who could strike and wound him, yet not deprive him of life or limb nor attack him in a sanctuary. Other Public Punishments. — Thus, in the provincial Codes the general rule was that offenses could be atoned for by fines and damages, but that where these were not forthcoming, or where the crime itself was so heinous as not to be atonable by fine, outlawry ensued. The outlawed person, in either case, if he neither availed himself of the legal period of flight, nor purchased his peace, became completely " rightless." He might be slain by any one with impunity. The king could have him chastised and corrected, as appears in various laws. Until a free man had thus been out- lawed, however, the public authority had no power to inflict punisliment on him. 137 § :]f)li] THE MIDDLE AGES [Part I, Titlk II The only exception to tliis rule in the provincial Codes was for theft. This offense was deemed in the earlier ages the vilest of crimes, and the thief did not share the privileges preserved for those accused of other crimes previous to outlawry. Some of the punish- ments inflicted for theft were unknown for other ofYenses, e.g. serfdom and maiming. In determining the punishment the judges must have regard to the value of the stolen goods, and to whether or not the defendant had been caught in the act or the missing property been found in his possession. The boundary between grand and petty larceny in all the Danish provinces was three penny-marks ; capital punishment was inflicted only where the value of the goods stolen was not less than this amount and where in addition the thief had been caught in the act and brought to the " Thing." By the Code of Skane, a thief might be hung ; but the penalty for petty larceny varied from the whipping post to loss of limb or serfdom to the king. For church theft, or robbery combined with murder, he was broken on the wheel, or (according to Suneson) stoned or burned to death. To these pro- visions Valdemar's Code of Sjfelland adds that the " men of the Thing " shall decide upon the nature of the punishment for grand larceny, with the approval of the complainant. The Jydske Code names capital punishment as the regular penalty for grand larceny where the thief has been caught in the act, or been found with the stolen goods in his possession, or confessed the crime. It also con- tains a notable reference to the injured person's right (formerly con- ceded, and still retained in the town Code of Slesvig) to slay the thief when caught in the act ; this being now a prohibited form of self-vengeance, but the king's bailiff having the power to hang him without hearing and judgment. For petty larceny, the thief was branded with the thief-mark, and for a second offense he was hung, regardless of the value of the stolen goods. The crime of arson carried the death penalty in all the provinces. By the Code of Skane, whoever by the ordeal of hot iron was found guilty of deliberate arson and was arrested after the lapse of the period allowed for his escape, was to be hung. According to Su- neson, the death penalty applied where arson was committed for the purpose of theft ; while, by Erik's Code of Sjaelland and by that of Jylland, this was done only where arson was combined with murder and the miscreant caught in the act ; here the mode pre- scribed by the Sjselland Code was specifically burning at the stake or breaking on the wheel or casting down from a clift'. Where 138 Chapter V] SCANDINAVIA [§ 39c not caught in the act, but convicted })y law, he was accorded the customary period of escape ; at its expiration the same penalties applied, unless he was pardoned by the king's grace. — Capital punishment is also decreed by the Jydske Code for counterfeiting and robbery. Wherever life was forfeited, the mo\abIe property of the culprit, remaining after satisfaction made to the victim, escheated to the king. § 39c. Penal Legislation A.D. 13001 500. — The foregoing ac- count of the provincial Codes shows that the penal law was still generally considered as having chiefly a private character, both as to the specific crimes, the penalties imposed, and the mode of prosecution. For most offenses amends could be made by fines to the injured party and to the ruler. Were these not forthcoming, the accused could be forced into outlawry ; outlawry, furthermore, ensued directly as the penalty for the graver crimes ; capital punishment was inflicted only for a few offenses deemed especially treacherous and ^'ile. The right of complaint for wrongs ame- nable to fine inhered primarily in the offended party, public prosecution being here only subsidiary, and usually only where the crime was notorious ; but for crimes not atonable by fine, especially when notorious, public prosecution was the regular mode. In the sources and authorities of the succeeding centuries up to the 1500 s, no general or radical alterations in this system are apparent, other than that the punishments for certain crimes were made more severe, and that certain of the earlier provisions were not always enforced. Thus the older rules are repeated almost without change in the Ordinances of Erik GIip])ing of 12S2, 12S3, and 1284. So, too, is reenacted in the Ordinances for \'ording- borg and Xyborg, of 1282, the rule of the provincial Codes appli- cable to theft, that no one shall be imi)ris()iie(l unless caught in the act or legally convicted of a crime punisha])le by forfeiture of life or limb ; to this provision the Vording law adds murder, rape, or mayhem done in a village where tlie king is present ; and the Nyborg law adds that one not caught in the act. nor proved guilty in other manner, shall have the legal time for making his escape, and that no })unishnu>nts shall l)e inflicted other than such as are described in the law nor unless the accused is legally proved guilty. These regulations were almost literally repeated in the later Charters (" Haandfa'stninger "). 139 § 39c] THE MIDDLE AGES [Pa FIT T, TrTr,E II Was the feud-revenge on kindred still countenanced ? The TIclsingborg Ordinance of 12813, after reenacting the provisions of \'aldomar's Code for Skäne, that the relatives of the murderer are not in duty bound to contribute to the " man-fine ", unless he had become an outlawed fugitive, expressly prohibits the victim's kin from taking vengeance on the guilty one's kin while he was yet alive, classing such revenge as unprovoked murder. A similar rule is also laid down in the Articles of Thord Degn, which also penalize violent acts of vengeance with a royal fine of forty marks and outlawry ; such self-redress being declared to be a contempt of the king's judicial authority. This Ordinance of Helsingborg, in 1283, also accords with the earlier Provincial Codes in penalizing acts of violence (" Hservaerk ") with fines of forty marks, and mur- der in church or in the home of the slain with outlawry. The Ordinances of 1284, however, are more severe, decreeing outlawry also for mayhem inflicted at such places, also applying this penalty to the companions of the wrongdoer, and including such offenses when done against a guest in the house of a third party. The Jydske Code provides death for such crimes, where the ofi'ender is caught in the act ; and it adds an express provision for public prosecution in such cases, this being prescribed by the Articles of Thord Degn only where a fine was due to the king. These ordi- nances also reproduced the provision of the provincial Codes that one sentenced to pay fines for a grave offense w^ho failed wdthin the time allowed to render satisfaction or produce a bondsman should be outlawed. Market-Town Laws. — The " peace of the village " is referred to as early as the Jydske Code. A crime committed within the boundaries of the village was subject to an additional and special fine ; so that murder or injury to limb involved a penalty of forty marks, — the amount in some cases going to the village exclusively, in addition to that due the king, and in other cases being divided between the local and the general government. In the "INIarket Towns " (" Kj0bstaederne "), the claims of the of- fended party were generally satisfied first, before the public fines were exacted; one exception is found, however, in the general Town Code of Queen INIargaret (1294), in which the royal claim came first, that of the offended party next, and then the claim of the town. That these Town Ordinances contemplated general public indictments is indicated by various passages, — as where it is said that public prosecutions are not proper for acts of chance 140 Chapter V] SCANDINAVIA [§ 39c or accident or in self-defense, nor during " holy time " ; that they shall be made at the village " Thing "; and also that the king's officer shall not be limited to notorious crimes in filing charges. Other provisions aimed at preserving the peace of the village, preventing offenses, and insuring the punishment of offenders. Such are the oft recurring rules that all burghers are in duty bound to come to the rescue of one attacked, and to apprehend a fugitive offender and deliver him to the bailiff; the appreheufler being entitled to share in the fine. Carrying weapons in public places was likewise prohibited. Fugitive offenders were to be listed, and their names were later announced yearly at the " Thing." Besides the general " peace of the village", the city and provin- cial Codes also name a " peace of the market ", the day and hour for holding the market being specified ; and in the town Code of Kopenhagen (1294) the king's peace is specially mentioned. Outlawry is the penalty for certain crimes ; for failure to pay fines and damages, outlawry could be inflicted, as also imprisonment or loss of life or limb. In these town codes and charters (a.D. 1294, 1485, 1507, etc.) it was furthermore expressly stated that outlawry there inflicted was effective throughout the realm, and vice versa ; that the outlaw could regain his peace only by making amends to all concerned, and should forfeit his life otherwise on returning. In the earlier town Codes of Kopenhagen (dating from the time when the city was under the bishop's rule), life- imprisonment was provided for several crimes which in later laws entailed death in that town (and in other towns at an earlier date) . The increasing severity of punishment in the later town Codes is especially noticeable in the general Town Code of Queen Mar- garet ; but there is considerable variance in this respect. The earlier town Law of Skane allowed manslaughter to be atoned with fines, while in the charters granted to several market towns in Skane by Valdemar Atterdag (a.D. 13G1, 1415) outlawry was imposed. Manslaughter, in the town Code of Roskilde (a.D. 12()S), was fined, the amount varying according to whether the offender was a burgher or a stranger ; and the Kopenhagen Code of 1 294 imposed imprisonment for life ; while that of Queen Margaret (1387-1412) prescribed capital punishment for every murder; as also the later Kopenhagen Code and the general Town Codv of King Hans (1481-1513). 141 § 39c/] THE MIDDLE AGES [Part I, TiTLE II B. Switzerland ^ § 39r/. The Common Law of the Later Middle Ages (Peace; Pledged and Commanded Peace; Crimes ; i Penalties). — In the Germanic districts which now form Switzcrhuid, there were many local variances of detail. But the general features of the common law w^ere substantially the same in all the cantons, even in those using what is now the French language. The South German law- book, the "Schwabenspiegel ", did not possess any general authority, nor was it even a general model. Each canton had some special en- actments of its own. The Bern " Gerichtssatzung " (Judiciary Act) of 1593 is the most representative source for the body of later medieval tradition. The old Swiss common law was markedly the product of local ideas and needs. In form, its features were simplicity and a concreteness of detail. In substance, it was the old Germanic peace-law, but based on a special sense of personal " honor " most marked in the sturdy free communities of these uplands. The basis of the respect for the peace-command was the honor of the participants. The peace- breaker was honor-less, a breaker of faith ; this was the basic prin- ciple. " The peace-breaker", said the Zug Book of Laws, "shall for two years be deemed a perjurer and honor-less ; his word shall neither hurt nor help any one. He shall bear no other weapon than a broken sickle, and shall for one half-year drink no wine outside of his own house." The more modern notion of " peace " as public and general law^ and order is alien to the medieval idea. In the earlier thought there w^ere only specific " peaces " (" Friede "). The most gen- eral forms were of course the peace of the land and the peace of God. But there w^as also the peace of the town, of the army, of the market, of the church, of the court, of the home. An important part is played by the " pledged peace " and the " commanded peace ", i.e. a peace specially supervening between individuals. The pledged peace takes the form of a voluntary settlement of a quarrel by the parties. The commanded peace is a higher form, imposed on them by authority. Every member of the community has a right and a duty to command the peace, to part the combatants, and to pursue the wrongdoer. When a quarrel arises, any citizen may and must command the peace of ' [This section is by the Editor; its authority is the treatise of Dr. Pfenninger ; for this Author and work, see the Editorial Preface. — Ed.] 142 Chapter V] SWITZERLAND [§ 39d the land (or of the lord). The parties must be separated (and the details of the proceeding were carefully regulated), and must then clasp hands in peace. Thenceforth they are under a special re- sponsibility ; and a curse, an insult, or even a contemptuous word will be a breach of this peace. To evade this more serious respon- sil)ility was naturally a frequent object of the parties — by refusal and flight, for example — and the law took note of this in some of its measures. The special peace was limited in its duration, — sometimes, by order of the judge, until the next market day or like term ; but often, by custom, till the parties next ate and drank together, and the evasion of this, by a feigned friendly act, was also struck at by law. The importance of the peace as a basis of the criminal law is seen in the numerous prohibitions of conduct likely to lead to a breach of the peace, — placing hand on sword, lifting a stone, lying in wait, insults, etc. These have sometimes been construed as early recognitions of the doctrine of attempt. But the emphasis was not so much on the intent or preparation as on the prevention of a breach of the peace. It cannot be conceded that there was as yet any distinct recognition of attempt as an independent ofl'ense, nor of criminal intent in the modern sense. Another aspect of the peace-law is seen in its reliance upon the citizen's duty to interfere to keep the peace. No public police existed. Only gradually and later was there a magistracy with " ex officio " powers and duties to arrest. The medieval prin- ciple of the individual citizen's duty to help is in strong contrast with the later attitude (bred by generations of strong magisterial authority) which finds the citizen cautious about meddling and ready enough to leave all such matters to the official police. Still another aspect is the important distinctions based on pcr- .s-<))t(il honor. Offenses as well as punishments were classified by their relation to this sense of honor. Murder and stealing are honor-losing; manslaughter and robbery are honor-keeping. Breach of faith and fraud are honor-losing ; an open act of anger is honor-keeping. Injury done in mutual combat with weapons is lionor-kee])ing ; injury to a weaponless man is honor-losing. And finally, as another aspect of the peace-system, is to be noted the persistence of the self-help principle for the victim of a wrong. The blood-feud is still found, especially in the primitive cantons, at the close of the ^liddle Ages. The right of e\er\- free man to bear and use arms and to vindicate his family ami personal honor 143 § 3U(/J THE MIDDLE AGES [Pakt I, Titi.k II is seen in tliis long surv^iv^al. Its spirit appears in the formula of the Bern Judiciary Act (159:5) for delivering the body of the fleeing homicide to his victim's family : " If after summons in open meeting he does not appear, let him be known as gone out of peace to no- peace, out of safety to un-safety, and let the killer's body be de- livered to the friends of the lifeless one to do as they think fit." Crimes. — No complete emuneration of offenses is given in the statutes. Custom and discretion controlled more or less. Murder was the killing of one with whom there was a pledged peace, — punished by death on the wheel ; for manslaughter, the penalty was beheading. Bodily injuries were still classified in detail, — wounding, bloodletting, mayhem, blows with and without weapons, hand-laying, and so on. How far was self-defense and self-redress (" Xothwehr ", necessity) recognized? In early Germanic law, this principle of excuse or extenuation is given a very broad scope ; it could be used even for stealing and other property wrongs, and it justified death done upon the wrongdoer. But gradually it be- came restricted; "lawful necessity" ("rechte Nothwehr "), a phrase of the " Schwabenspiegel ", represents this restricted prin- ciple. In Swiss law its gradual limitations did not so much go to the kinds of wrongs for which it was available, as to the kinds of harm permissible ; to inflict death was allowable only in the extremest cases. Here the judge's discretion played a large part. Penalties. — Fines in the nature of private settlements still persisted long after State authority was well organized. Then these were replaced by a judge-imposed fine, divided between the court and the injured person. Finally, the court takes the whole fine, leaving the injured person to his private suit for compensation. Both stages are seen in the Bern Judiciary Act of 1593. Meanwhile, corporal yenalties come into use, as a part of the growing system of repression by political authority. Town gov- ernment becomes more powerful. The burghers' tradal prosper- ity asserts itself, alike against robber barons and the lower vaga- bond and criminal classes. Deterrence by fear is the dominant spirit of this system. There was no organized preventive repres- sion by police methods. Imprisonment as a punishment is scarcely known. Cruel modes of the death penalty are devised ; along with hanging and beheading are found wheel-breaking, boiling, burning, burying alive, empaling, and immuring. INIutilation is a frequent mode, — tongue-slicing, ear-clipping, hand-hewing, eye-scooping, 144 Chapter V] SWITZERLAND [§ 39d hot-iron-searing, and scalping (in three cantcjns). The notion of *' lex talionis " — an eye for an eye, a tooth for a tooth — is con- stantly apparent. The occasional penalties of loss of freedom were the prison, the galleys, house-detention, and restriction to a specified locality. Banishment was the chief penalty of this sort ; it varied much in the periods of time and the district of expulsion. Confiscation of property usually attended it. The fwnor-penalties were elaborated. They involved a loss of honor and of weapon for a greater or less time, usually with some ignoble incident, such as carrying a broken weapon, dragging a stone, standing at the church-door, wearing an unseemly garment. The application of the severest penalties was, to be sure, more or less rare ; commutation of a cruel death to simple death, or of death to banishment, is frequently recorded. The lay-judge of the popular governments tended to milder penalties than the official judge of the imperial and royal regions. 145 Chapter VI FRANCE IN THE LATER MIDDLE AGES^ § 39e. General Features of Me- 1 § 39/. Specific Crimes, dieval Criminal Law in § 39^. Punishments. France. I § 39e. General Features of Medieval Criminal Law in France. — ■ The Custumals of the Middle Ages contain no account of what we call to-day the theory of criminal law. No endeavor was made in those days to determine carefully what constitutes the true basis of the right to punish, the desirable qualities of a punishment, and the defects to be avoided. Our ancient authors accept without inquiry the very simple, but often altogether false, ideas which were current in their time. The Italian jurisconsults of the 1300 s were in advance of our own ; for Gandinus, Bartolus, and Baldus in their writings allotted a relatively important part to criminal law ; yet even they, in spite of the early Renascence of law in their country, did not study the problem of the right to punish, — did not even seem to suspect its existence. We find in their works numerous details concerning judiciary organization, the procedure of penal tribunals, and punishments, but no thought concerning the nature and extent of the right to punish. All, however, strive to give greater prominence to inquisitorial procedure, that is, to the procedure initiated by the judge.- Baldus advocates this pro- cedure as soon as a criminal act is publicly known ; but, while trying by this means to assure a more general and efficacious re- pression, he carefully avoids the subtleties of scholasticism ; un- like other jurisconsults of his time, he condemns torture, and 1 [This chapter = Glasson, "Histoire du droit et des institutions de la France", Part IV, Chapter xii. Vol. VI, pp. 640-705. For this author and work, see the Editorial Preface. — Ed.] - [On these points of procedure, see Estnein's "History of Continental Criminal Procedure", Vol. V of the present Series. — Ed.] 146 Chapter VI] FRANCE IN THE LATER MIDDLE AGES [§ 39e claims even that the judge ought to incur the death penalty if the accused when subjected to torture dies from the effect of the suffer- ing.^ As for French practitioners, sometimes they followed Ger- manic or Roman traditions, sometimes they were prompted by the opinions of the Church ; but never did they attemi)t to construct a purely rational penal system. This question did not yet even exist for them. Certain crimes, such as homicide [" meurtre "], arson, battery, wounding, and insult, were punished according to the old Germanic traditions. Other crimes, such as heresy and usury, had a clearly canonical origin. Xot infrequently, too, through the influence of the Church, we find the punishments of conscience mingled with those of society. Many penalties, such as penance, " I'amende honorable," pilgrim- age, and especially excommunication, which ought to have pre- served a purely religious character, found their way more or less into the law ; though this did not extend beyond an imitation of practices common in the previous period, especially under the Carolingians. The secular criminal judge, moreover, often took into consideration the confession and the repentance of the culprit, and on these grounds diminished the punishment to a marked and even excessive extent. That the judge should proceed thus in the tribunal of conscience we can easily understand ; i)ut it was dangerous to follow the same method in secular justice. Though some of the punishments inflicted in the Middle Ages originated in the old Germanic regional Customs (chief among these is the fine, certain forms of mutilation, and perhaps even hanging), yet certain offenses are borrowed from Roman law. This, however, was at the end rather than at the beginning of the Middle Ages. In the earlier days, criminal justice had been exer- cised chiefly by the courts of the feudal lords and even by those of ' See on these various points: Sarigny, "Histoire du droit au moycn age", trans. Guenoux, Vol. IV, esfXH-ially pp. 184, 201, 20;{, 227 ; _ üit ßni/s, "Histoire du droit criminel de la France, depuis le XVIe jusqu'au XlXe siecle", Vol. V, p. 271, et seq.; Bethniann-Holhveg gives a list of the jurisconsults of the epoch who treated the question of criniinal procedure and incidentally touc^hed upon certain questions of penal law. Tiie most famous in the 1100s and 1200s are Bulgarus, i'lacentiiuis, .Uhi'rtus Galeotus, Hubertus do Boiuicurso, Hubertus dv Bobio. Holandinus do Romaneiis, Giovanni Andrea, AlluTtus de (iaiulino. and .lacobiis do Belvisio. Most notable is the name of (iuillaume Durant (or, Durandus), born in 1237, the author of "Speculum juris". See Bclhmanit-HoUucg, "Der Civilproeess des gemeinen Rechts," Vol. VI, §§ 129, et seq., p. 197, where considerable information conci-riiing these jurisconsults and their work will be found. On this same subject see also Savigny, "Histoire du droit romain au moyen age." 147 § 3i)t] THE MIDDLE AGES [I*AKT I, TiTLK IT (•(Ttiiin cities. Tlic assiduous ofVorts j)ut fortli l)y royalty to re- t;ain the ri", chap. 67, Gniclii/, p. (U. — This Custumal continues the enumeration of the chief crimes as follows : "There are different kinds of criminal comi)laints accordiiit: to the difTerent consequenc(>s of the various crimes. There are c()nii)Iain(s for murder, homicide, wounding, broken truces, rape, theft, robbing of a plough, plundering a house or personal property, and treason." » See "Ancienne coutume d'Anjou et du Maine", F, no. 1255, Vol. II, p. 4(57 et seq. '» See book I, tit. 28, p. 170. It will be noticed, however, that certam punishments were classed with the death penalty, and from that time the crime became, under such circumstances, a capital one. »' In certain regions we find traces of the right of vengeance down to 149 § 30t'] THE MIDDLE AGES [Pakt I, Title II it is still this same basis on which the jurists of the Middle Ages placed the right to punish. But instead of a private vengeance it is now a matter of public vengeance : it is society, and no longer the individual, that demands reparation for the wrong done by the criminal. Beaumanoir declares explicitly that criminals must be taught that there is a right to vengeance for all ofi'enses.^- He does not even incline toward lenity, and his habits as a magistrate accustomed to repress crimes lead him to say that in case of doubt one must punish severely in order to give an example to others. ^^ Bartolus has no different doctrine. " There are ", he says, " two legal ways of avenging crimes ; the accusation by a private party and the procedure initiated by the judge. The judge initiates his procedure, 1st, when he is called upon to make an investigation as a result of an accusation ; 2d, when he begins an investigation of his own accord." ^^ But during the latter part of the Äliddle Ages the idea of the right to punish shows a marked decrease of rigor. The " Anciennes coutumes de I'Anjou et du Älaine " speak no longer of the brutal right to vengeance ; they still lay weight on the example afforded by punishment, but the latter is also considered as a means imposed upon the criminal of paying his debt to society, and at times of making it impossible for him to disturb the public peace. We see also the beginning of the idea of social self-defense.^^ Bouteiller the end of the Middle Ages, and even during the first part of the follow- ing epoch. See, for example, Giiyot, "Un nouvel exemple d'urfehde", Nancy, 1892, and the critical study of this memoir which I published in the "Bulletin du Comite des travaux liistoriques et scientifiques. Section des sciences eeonomiques et sociales", 1892. '2 Beaumanoir, chap. 30, no. 1, Vol. I, p. 410, where the word vengeance is met at eyer3^ instant. It is also stated that the lord takes vengeance on the criminal, but in so doing he appears as the representative of society and not as a private individual. " Beaumanoir, chap. 30, no. 61, Vol. I, p. 429. "It is an excellent thing to anticipate criminals, and to punish them so severely, according to their crimes, that through fear of justice others mil take warning and abstain from offending." '* "Jus, ex quo sumitur vindicta, est duplex, scilicet accusatio et officium judicis. Officium exereitur, quando per inquisitionem ad alterius denuntiationem proceditur quandoque per inquisitionem factam proprio motu judicis." See Du Boys, "Histoire du droit eriminel de la France", Vol. V, p. 280. 15 "Anciennes coutumes d'Anjou et du Maine", L, no. 404, Vol. IV, p. 308 : "The judge ought to know that a criminal must be punished for four reasons : 1st, for his crimes ; 2d, in order to frighten and give an example to others against evil-doing ; 3d, in order to remove the said malefactors from the community of good people and thus avoid their exercising an evil influence over them ; 4th, to prevent the evils which they might still commit if they escaped. The judge must exercise im- partiality in judgment between the parties with no regard to persons." 150 Chapter VI] FRANCE IN THE LATER MIDDLE AGES [§ 39e does not attempt, any more than others, to speeify the cause of punishment, but he advises the judges to be indulgent and to take into account a host of circumstances in its apphcation ; — the character of the victim, the condition of the criminal, the time and the place where the crime was committed, and the previous habits of the culprit.^^ These are only the observations of a jurist inclined toward indul- gence. Society's right to vengeance, and the necessity of intimi- dating through the dread of corporal punishments, are the two bases of the right to punish in the ^Middle Ages. With such principles they could have devised punishments more or less fixed, more or less uniform for all, and of a severity commensurate with the gravity of the crime ; yet nothing of the kind was done. Under the influence of old Germanic regional Customs certain offenses continued to be punished with extreme leniency; they were repressed only by means of simple fines. Beaumanoir al- lowed himself to add imprisonment whenever the fine seemed to him clearly insufficient. On the other hand, under the influence of Roman law, and even of old Germanic regional Customs, ex- tremely severe punislmients were inflicted at times. This severity astonishes us to-day, especially w^hen we consider the cases where the Church succeeded in making people consider simple sins of conscience as real crimes. However, there did not exist, properly speaking, a punishment directly and necessarily attached to a certain crime. To be sure, the Custumals point out the punishment with which the culprit is ordinarily threatened ; but they give us only hints. Generally, the judge enjoys the most absolute power ; he can strike as he pleases. In short, punishments are arbitrary. A certain oft'ense is sometimes punished with extreme severity, sometimes with reprehensible indulgence. In 1330, at Chambery, a man guilty of arson is led to the stake ; while another, guilty of the same crime, is punished with only a ridiculous fine of ten deniers. A little later, of two men accused of sodomy, one is burned alive, the other makes a composition with the count for eighteen gold florins, and ^^ Bouteiller, "Somme rural", book I, tit. 29, p. 180: "It can and ought to be known that the punishment of the law was regarded by tho ancients as a means of curbing the evil intention of criminals, those wlio wish to injure and wrong others, and oppress tiiem l)y their demands; nevertheless, the judge must always understand punislnuent in its mihier form; for as the wist- man says, justice without nuTcy is too hard and mercy without justice is too lax ; and thereforr there ouglU to be modera- tion and a middle course for the wise discretion of the judge." 151 § 30e] THE MIDDLE AGES [Paht I, Titlk II the count even remits liim the amoiint.^^ At times the most severe j)unishments were inflicted without the formahty of a trial. On June '50, 127S, Pierre de la Broce was, without trial, hanged at the gallows for common thieves,'** probably by virtue of the then asserted right over life and death attributed to the king as the sym- bol of justice. To be sure, such irregularities were not common, and the necessity of a legal procedure was recognized ; but the pro- cedure tended to become more and more secret, and thus to deprive the accused of guarantees of fair treatment. Side by side with these serious defects — ^a continual cause of in- justice and inequality — two essential and very just principles had, however, been proclaimed at a very early date, namely : every crime implies volition and freedom on the part of the one who has com- mitted it ; and every crime is essentially its author's personal act. Beaumanoir gives numerous applications of the principle that crime implies intent and freedom in evil-doing. Thus, he who kills in war commits no offense, not even if by mistake he has taken his friend for an enemy.'^ No more is a man responsible for the accidental homicide committed in a tournament or a joust.-** Xor are parents responsible for the death of one of their children through mere chance.-^ One is not answerable for a death or wounds of which he has been the involuntary cause, if he had used care to prevent such a misfortune.-- In this respect, as can be seen, the law had far advanced from the Germanic primitive law which did not distinguish clearly the crime of murder from the in- voluntary act which caused death or wounds.-^ From this point of view considerable change and progress had been achieved. Since crime implied evil intent, the man who kills or wounds in self-defense is not guilty.-^ This principle of the right to seli- 1^ Chapperon, "Chambery ä la fin du XlVe siecle", pp. 182 and 183. 1* See Langlois, "Le regne de Phillippe III le Hardi", p. 30. 1^ Beaumanoir, chap. 69, no. 2, Vol. II, p. 489. 2" Beaumanoir, chap. 69, no. 17, Vol. II, p. 492. The following number gives other examples of homicides committed by mere chance and which entail no punishment. 21 Beaumanoir, chap. 69, no. 5, Vol. II, p. 485. 22 Beaumanoir, chap. 63, nos. 3 et seq.. Vol. II, p. 419. 23 See, for instance, law of the Visigoths, X, 8 ; law of the Saxons, tit. XII. — Najii, "Studii di diritto Longobardo", p. 38; Viollet, '"Etablisse- ments de Saint Louis", Vol. I, p. 232. Bouteiller tells us that homicide is considered lawful in war or in a judicial duel ; also if one kills a man who, having been outlawed the pale of the law, breaks the ban. This last case is a relic of the primitive system which it would have been better to suppress. 2^ Beamnanoir, chap. 30, nos. 65 et seq.. Vol. I, p. 432. 152 Chapter VI] FRANCE IN THE LATER MIDDLE AGES [§ 39e defense was invoked in certain Royal Letters of January 2S, 1368 (concerning the parish of Peronne), which made a notable extension of the principle ; according to Article 8 of these Letters, whenever, in self-defense, one kills a man who wishes to enter a house without right, one is not liable to any pun- ishment .-"' Beaumanoir is not alone in proclaiming the principle of the necessity of a criminal intent ; we find it also in almost all the other custumals which touched upon this question. The " Grand Coutumier de Xormandie " deals with the case of a lunatic killing or wounding another man ; he must be put in prison, but through mere precaution, without trial, and without infliction of any pun- ishment, and while there he must be cared for at his own ex{)ense, if he is well-to-do, and by charity, if he is poor.-^ One of the Cus- tumals of Anjou remarks that the intent is one of the essential elements of the crime.-" According to the " Livre des droiz et des commandemens " lawful defense of one's self, or of those who are closely related, excludes criminality, if the defense is proportional to the attack.-^ Bouteiller notes that, according to the Custumals. the death penalty is incurred even when the homicide is the result of a simple imprudence, unless the prince grants a pardon ; but he clearly prefers the Roman doctrine which exempts from all punish- ment.-^ Suicide is no crime if it is the act of an insane person, or if it is induced by poverty.^" But from the moment that criminal intent is found, there is a crime, regardless of sex or age. Women are punished like men, with only rare exceptions. They incur the death penalty, except that it is inflicted in a special manner ; they are burned or buried alive instead of being hanged. However, Bouteiller advises that. " Letters of Charles V, January 28, 13G8, Isambcrt, Vol. V, p. 320. 2^ This Custumal adds that it is even prudent, before the lunatic has disturbed the public peace, to have him guarded by his own family, or. if there be no relatives, by neighbors. See "Grand coutumier de Xor- mandie", chap. 79, edition Gruchy, p. 184; "Livre de jostice et de plet", p. 73. " "Anciennes coutumes d'Anjou et du Maine", L, no. 409, Vol. IV, p. 310. 2* Thus it is not permissible to employ weapons against one who threatens only with the fist and the stick, unless one is feeble or sick ; thus it depends on the circumstances. See "Livre des droiz et des com- mandemens", nos. 500 and 997. " Bouteiller, "Somme rural", book H, tit. 40, edition of 1('»21, p. 1493. ^^ "Registre criminel de Saint-Martin-des-Champs de Paris", pp. I'. > and 299; Bouteiller, "Somme rural", book I. chap. 39. 153 § 39e] THE MIDDLE AGES [Part I, Title II while in prison, they be treated more gently than men, and he adds that in civil cases they incur only a half fine.''^ Minors are pun- ished like adults as soon as they have reached the age of discern- ment ; ^^ minority in itself is no ground for excuse. But it was decided at an early date that there was no crime before the age of fourteen or fifteen, according to the regional Customs; except, as Bouteiller adds, that corrective measures should be applied to wards who have ofiended.'''^ In view of the Custumals so clearly admitting the principle of responsibility and making such varied applications of it, it is curious that they should have committed the solecism of al- lowing criminal prosecutions against animals. This procedure Avas used, not only when the animals figured as the accomplices in certain crimes committed by men, but also when they were charged as the only guilty parties. We find many examples of such trials in the ^Middle Ages, and they are not uncommon even in the following period. These prosecutions of animals are too well known to need here any special account of this judicial curiosity. An actual mock trial was held when the animal had (for instance) killed a woman or a child ; the death penalty was inflicted, with all formality at the usual place of execution. The Church has often been reproached with favoring these trials ; but there is no serious proof to support this accusation. The truth is that jurists and the Custumals conceded something to popular beliefs ; moreover, another motive was the general one of deterring from crime by in- spiring fear. Upon the revival of Roman law (a.D. 1200-1300), it was possible to invoke certain texts of the Digest which seem to concede intelligence to animals and hence a capacity for crime.^^ But the jurist Ayrault, in a later century, remarked that if these trials were conducted for the purpose of intimidation, they com- pletely missed the aim in view ; for in his day they had ended by causing ridicule rather than the desired effect. Long before then, Beaumanoir had expressed disapproval of these trials of animals ; he found it absurd to condemn an animal devoid of intelligence ; at the same time, he hinted that the feudal lords had some interest 31 Bouteiller, "Somme rural", book II, tit. 40, ed. 1621, p. 1495. 3^ "Anciennes coutumes d'Anjou et du ^Nlaine", F, no. 253, Vol. II, p. 115. 3' Beaumanoir, chap. 31, no. 12, Vol. I, p. 462; "Li^Te des droiz et des oommandemens", Vol. II, no. 463; Bouteiller, "Somme rural", book II, tit. 40. ^* See, for instance, 1. 1, § 11, "Si quadrupes pauperiemfecisse dicatur", IJv, 1. 154 Chapter VI] FRANCE IN THE LATER MIDDLE AGES [§ 39e in preserving these trials, and that also is perhaps one of the reasons which explain their frequency in the Middle Ages.'^' The owner, indeed, without being chargeable strictly with a crime, might be held responsible for the act of his animal, and might be liable, not for the appropriate punishment, but for damages and even some penalty ; the master's liability is not that of the author of the crime, but merely that of one responsible for the animal.''^ And it is here worth noting that the old regional Customs often preserved the enormous fines imposed in the preceding period in such cases. In the Germanic laws it was natural to find that, in case the death of a man was occasioned by an animal, its owner was to pay composition as if he were the author of the homicide.^^ This was explainable in an epoch when no distinction was made between willful and accidental homicide. But by the [Middle Ages new principles had evolved ; it was conceded that there is no crime without evil intent. Henceforth, as Beaumanoir pointed '5 It is curious that this passage is not known to or, at least, has not been cited by the authors who have devoted monographs to trials against animals; Beaumanoir, chap. 69, no. 6, Vol. II, p. 485: "Those who administer justice in their lands put animals to trial when they kill a person ; so, if a sow or some other animal kills a child, they hang the animal and drag around the body ; but this should not be done, for dumb beasts do not know what is right and what is wrong, and therefore it is justice lost. For justice should be done to avenge the offense, and in order that the author of the crime may know and understand that he suffers for this offense a certain punishment; but this understanding is not to be found in dumb beasts. This consideration is denied them by those who try in court and put to death dumb beasts for crimes ; the lords do this for their own profit, as a thing to wliich \\\Qy are la\\'fully entitled." Bouteiller also devotes a paragraph to trials of animals in title .38 of book I, of his "Somme rural", ed. 1621, p. 267. For the details con- cerning these trials and examples of them which have been noted, one may consult, among other works, the following: Lounn former case alone are they guilty. However, even this jurist makes no crime of "lese majcste", although he had been dead since the first of .January of the same year. During the trial the court affect (>d (o l)e ignorant of this circumstance; and when the case was put to tiie judges, the king's lawyer maintained with faltering words that according to feudal law it was permissible to continue ])roceediiigs in case of felony even after the death of the vassal. But finally, in spite of their desire to confiscate the lands of the deceased, the cliarge was allowed to lapse. See Isamberl, Vol. VI, p. 620. 1 Beaumanoir, chap. .30, nos. 102 (7 seq.^ Vol. I, p. 4.).); "Livre des droiz et des commandemens", Vol. II, no. .'S.SO. 2 Glasson, "Clameur de haro", may be referred to; here it is enough to mention the point. 161 § 39/] THE MIDDLE AGES [Part 1, Title II rest them or at least to raise a hue and cry."'' To do s{)eedy justice, juristliction was given not only to the judge of the lord under whom the offender lived, but also to the judge of the place where the crime had been committed, as well as to the one upon whose territory the ofl'ender had been arrested."* ^Moreover, since the ofl'ender was taken in the act, the crime was by that very fact sufficiently proved.^ But, save these differences, the distinction between crimes when the offender is or is not taken in the act, had at this period lost all practical usefulness; the jurists prefer a different point of view. Beaumanoir tells us that crimes are great, medium, or small, according to their gravity.^ Among the first he puts expecially murder, homicide, treason, i)oisoning, suicide, rape, arson, certain thefts, heresy, and counterfeiting. Batteries and wounds of all kinds, false witness, petty thefts, insults, contempt of court, dis- placement of land-marks, violation of seizin, disobedience of police measures taken by the lord, violence against the property or pos- session of another, and delayed pajTnent of certain rents, — these were medium or even petty crimes. The other Custumals contain analogous distinctions, except for some differences in details. There is, however, a great difference between the classification of Beaumanoir and that of Bouteiller. The former does not lay any stress on the kind of punishment ; he classifies crimes from the point of view of their gravity in themselves. The latter terms capital crimes those punishable by death or some other punishment classed with death, such as banishment, and non-capital crimes those for which the regional Custom inflicts a less severe punish- ment, such as pillory, brand, or fine. Thus, for Bouteiller, capital crimes include " lese majeste " and other treason, murder and homicide, rape and abduction, certain forms of violence, sacrilege, heresy, sedition, conspiracies, insults to the king, witchcraft, corruption in magistrates, sodomy, blasphemy, brigandage, and the ' Isambert, Vol. II, p. 650. * Beaumanoir, chap. 30, nos. 84 and 8.5, Vol. I, p. 442. Later, thej' extended these rules of jurisdiction even in cases when the criminal was not taken in the act. ^ Beaumanoir, chap. 39, no. 10 and chap. 61, no. 2, Vol. II. pp. 95 and 376; "Assises de Jerusalem, cour des Bourgeois", chapters 203, 208, 209, 251; Charondas, "Notes sur le Grand Coutumier", p. 117. In Beau- manoir's time, whenever the judge could not satisfy himself that the person charged was either a notorious offender or taken in the act. he was obliged, if no one appeared and complained, to release the accused at the end of the customary period allowed for freemen to appear in court. See Beaumanoir, chap. 30, no. 90, Vol. I, p. 446. ^ Beaumanoir, chap. 30, Vol. I, pp. 410 et seq. 162 Chapter VI] FRANCE IN THE LATER MIDDLE AGES [§ 39/ more serious forms of larceny ; ainoiif^ non-capital crimes he i)laces insults, batteries and wounds, carrying of weapons, \iolations of the game and fish laws, etc. (v Of all crimes the gravest of course is " lese majeste." It is not found in the early Custumals. It appears only at the end of the period, as an effect of the revival of Roman law. Bouteiller defines " lese majeste " as meaning all attemi)ts against " the noble majesty of the king." Xo one but the king himself can .sit in judgment on it within the kingdom, — whatever be the station of the accused, even a churchman of the highest rank. The trial never begins by inquest of the country ; a special procedure is required ; if the proof is not clear, torture may be used upon the accuser as well as the accused ; if the former is convicted of false complaint, he incurs the penalty that the accused would have suffered. He who advises only is equally guilty with him who acts overtly in such a design. Whoever has knowledge of the - townspeople against their overlords. If the lord learns of it before the plot is carried out, he may have the leaders hanged, "> Bouteiller, "Somme rural", book T, tit. 39, pp. 47S and 479. Tho "Livre des droiz et des commandemens", no. 7(32, Vol. II, p. 195, inf(jrnis us that the man guilty of "lese majeste" ean never lodge au appeal. * Bouteiller, "Somme rural", book 1, tit. 39. 163 § 30/] THE MIDDLE AGES [Paut I, Title II and may imprison for a long term the other participants. Beau- manoir speaks of a long term of imj)risonment as the penalty for those who make combinations and declare strikes.^ Bouteiller also deals with crime of combination which he calls " monopoly " and considers as a case of " lese majeste."^" In this class he puts also sedition, which consists in revolting against one's lord, con- spiring against the prince's ordinance and edict to overthrf)w the government, and dealing with enemies and iiifidels.^^ With this crime of treason against the king or the lord, some Custumals class highway robbery and the abduction of girls ; so that in these cases the offender has no appeal from the death penalty. ^^ The foregoing may be classed as crimes against society or its representatives. Passing to crimes against individuals, we find them of variant degrees, but alike resulting in some injury to a person, to a family, or to property. Of course the most serious offense against the person is m.urder (" assassinat "), that is, homicide (" meurtre ") with premedita- tion, in whatever manner, by blows causing death, by poisoning, etc. The Germanic folk-laws had not distinguished clearly murder from involuntary homicide ; their distinction was rather between the killing done in public or in secret. In the former case they in- flicted the ordinary punishments, whether the killing were ^'ülun- tary or not. The main concern was to give some satisfaction to the family's demand for vengeance ; and as secret homicide rendered this vengeance more difficult, it was considered a crime especially grave. ^^ During the later INIiddle Ages these old notions survive in the writings of some of the jurists.^'* But gradually there develops a clearer idea of the nature of the crime. Tlie term " guet-apens " indicates murder, that is, killing with premedita- tion, rather than secret homicide. But since these two circum- stances are most often found together, i.e. since murder takes place almost always in secret, there is still, for a while, some difficulty in distinguishing one from the other. They finally succeed in defining homicide (" meurtre ") as the act of killing one's fellow- 5 Beaumanoir, chap. 30, nos. 62 and 63, Vol. I, p. 430. 10 Bouteiller, "Somme rural", book I, tit. 28, p. 290. " Bouteiller, ibid. Jacques Coeur (as is well known) was prosecuted, tortured, and sentenced for having dealings with infidels. See Clement, "Histoire de Jacques Coeur", p. 279. 1^ "Li\Te des droiz et des commandemens", no. 762, Vol. II, p. 195. IS See our Vol. Ill, p. 560. '^ See, for example, Glanvill, book XIV, chap. 3; "Li\'Te de jostice et deplet", p. 290. 164 Chapter VI] FRANCE IN THE LATER MIDDLE AGES [§ 39/ man in ambush (" guet-apens "), that is, with prenu'ditation. This crime corresponds with what we call to-day murder.'' Even Bouteiller does not yet distinguish clearly murder from unpremedi- tated homicide. He recognizes that homicide by carelessness ought not to l)e punished, but adds immediately that even in that case the death penalty is incurred unless the prince grants pardon. ^^ Beaumanoir terms it a homicide when mere blows and wounds result in death within forty days.^^ Usually, homicide is the term applicable to any killing which becomes notable because of the means employed or of the rank of the victim. Poisoning, for ex- ample, was always and rightly considered an especially odious crime.^^ Murder is especially heinous if committed by a woman against her husband/^ by a son against his father, or by a father against his son. The old Custumals remind us of the well-known Roman punishment, which consisted in putting the parricide into a leather sack with a rooster, a dog, a monkey, and a serpent, to be thus thrown into the sea or into a river, so that he might lose at the same time the sky, the air, and the earth.-" INIere batteries and wounds did not fall within the category of capital crimes. But one who assaulted a pregnant woman was con- demned to be hanged. If the infant died in its mother's womb as a result of this ill-treatment (and of course, if the mother was killed outright), the crime was termed " encis." -^ This crime of '* "Li\Te de jostiee et de plet", pp. 2SS and 289; "Anciennes cou- tumes d'Anjou ot du Maine", E, nos. 76 and 77, Vol. I, p. 429; F, nos. 1321 ct seq., Vol. II, p. 489 ; F, no. 1369, Vol. II, p. 503 ; I, no. 96, Vol. Ill, p. 258 ; L, no. 288, Vol. IV, p. 264. '^ Bouteiller, "Somme rural", ed. 1621, book II, tit. 40, pp. 148S and 1493. '^ Benumanoir, chap. 69, no. 22, Vol. 11, p. 95. Notice this period of forty days, which is certainly of very old Germanic origin. ^* "Livre de jostiee et de plet", p. 284. On this point one sometimes finds cited the "Livre des droiz et des commandemens", no. 823; hut this text deals with enchanters' philters rather than with poi.sonings properly speaking; the offender must nevertheless pay with his life if the philter has caused death; otherwise, the judge may mitigate the penalty. On the poisoning of wells, see "Anciennes coutumes d'Anjou et du Maine", E, no. 87, Vol. I, p. 435. '" Beaumnnoir, chap. 69, no. 1(), Vol. II, p. 491. 2" L. 9, "De lege.Pompeia de i)arrici(liis", 48. 9. Enlarging on tiiis text, a decree of Hadrian had ordaiiud that if tiie sea was not near the place where the crime had l)een committed, the ofF(>nder was to he thrown to the wild beasts. But the latter form of punishment no longer existed in the Middle Ages, and in such (ta.se the guilty num was thrown into the river. Cf. "Livre de jostiee et de plet", p. 284; Bouteiller, "Somme rural", ed. 1621, book II, tit. 40, p. 1492. =1 See "Etablissements de Saint Louis", book I. chap. 27; " Li\Te de jostiee et de plet", p. 279; Bouteiller, "Somme rural", ed. 1()21, book II, tit. 40, p. 1488; "Livre des droiz et des commandemens", no. 251. 1(35 § 39/] THE MIDDLE AGES [Paut I, TiTLE II " (MU'is " has by some writers been positively traced back to the Salic Law, which in the title " I)e via lacina " awards a pecuniary composition three times heavier for a bhnv inflicted on a woman than on a man.-'- But this text does not even mention a preg- nant woman, and this interpretation seems questionable ; it is simpler to believe that, probably through traditional usages, a special protection was accorded to the unborn child. This protec- tion, howe\'er, was accorded only as against a third party, and not as against its parents. It is indeed astonishing, at first impression, to find the regional Customs of that period repressing with se\'erity the crime " encis " and yet relatively indulgent toward the crimes of infanticide and abortion. Yet there is here an apparent con- tradiction only. According to early usage, against which the Church struggled with difficulty, the father and the mother were conceded a kind of right of life and death over the child just born. Amidst such traditions, infanticide could not constitute a crim.e. The tradition was no longer in force, it is true, in the ^Middle Ages, but the influence of old Germanic regional customs pre- vailed. Roman law, to be sure, decreed the death penalty for in- fanticide ; ^^ but here it was not followed, and ancient usage pre- ^'ailed. Strange to sa}', the Church contributed in some measure to the survival ; it did indeed condemn infanticide energetically ; but as it never pronounced the death penalty for any crime, the result was that, whenever a woman was brought before a church court for this offense, the sentence was only a short imprisonment or even a less severe penalty.-"^ Furthermore, in certain regional Customs which had remained entirely untouched by Roman law and under the influence of the primitive tradition allowing parents the right of life or death, the killing of a child by the father or the mother was always more or less excused, whatever the age of the child.-^ Naturally, the 22 "Loi salique", tit. 31. 2' Const. I, "De his qui parentes vel liberos oecidunt", 9, 17. -^ See Bernard of Pauia, "Summa decretum", V, 9, ed. Laspeyres, p. 219; Viollcl, "Etablissements de Saint Louis", Vol. I, p. 250. -» See, in this respect, the curious text of chapter 35 of the "Tres ancien coutumier de Normandie" (ed. Tardif, p. 29; ed. Warnkönig and Stein, p. 15): "Si pater per infortunium suum filium oeciderit, poenitenciam agat ab eeclesia sumptam, et si inique eum oeciderit, exul ibit a tota potestate ducis. Uxor ejus sequatur eum ; post vero decessum sponsi sui redire poterit ad hereditatem suam. Et quoniam filius de sanguine et visceriljus patris exivit, pater pro homicidio filii morte non punietur. Et, si inique filium murdrierit, igne comburatur." It is curious that this last clause, awarding the penalty of death by fire, is not found in the French manuscript. It was probably added of special 166 Chapter VI] FRANCE IN THE LATER MIDDLE AGES [§ 39/ Customs were extremely lenient in ease of infanticide. The " Etablissements de Saint Louis ", under the influence of the Church, inflict no criminal penalty on the woman guilty of a first infanticide (though probably they required her detention in a monastery designated by the Church), but in case of a second offense the guilty mother was to be burned alive.-® This rule is still recognized, at a later date, by the " Li vre des droiz et des commandemens ", which requires that the mother guilty of a first infanticide be delivered up to the Church, but for a second offense be condemned in the secular tribunals to be burned.-" Certain custumals of the end of this period show a greater severity ; the woman is punished with death even for a first infanticide ; so also the woman guilty of abortion, — ^an offense which does not seem to be noticed by earlier Custiimals.^^ The least serious offenses against the person are batteries, ivounds, insults, and the like. Legal writers on the customary law, notablx' Beaumanoir among the earliest, and Bouteiller among the latest of our period, class these offenses as medium or non-capital crimes. We find in certain texts of the ^Middle Ages, especially the oldest, some traces of the old classifications of the Germanic folk-laws, which distinguish between different kinds of blows and wounds and punish them according to their gravity. Thus, in the Custom of Orleans they distinguish as many as three kinds of blows : one which causes a wound on the head, without, however, resulting in death ; one which produces a sore or causes the flowing of blood, punishable by a fine of sixty sous ; and one which results in no sore and no flowing of blood, punishable by a fine of only five sous,-* The same distinctions are found later in Bouteiller ; blows and wounds are })unished by a fine of sixty or of five sous according to whether they cause blood to flow or not.^° However, some wound- ings were punished more severely, because of their nature and the circumstances. For example, instead of the usual simple fine,"*' purpose, at the period when, under the influence of Roman law, the murder of the child by burning began to be considered as a horrible crime. -" "Etablissements de Saint Louis". Iiook I, lit. :V.). ed. Violld, p. äö. 2' "Livre des droiz et des commandemens", no. 'M\). 28 "Anciennes coutumes d'Anjou et du Maine", F, no. 13GS, XDl. 11, p. 503. 29 "Livre de jostice et de plet", p. 279; "Etablissements de Saint. Louis", book II, chapters 23 and 24. 3» Bouteiller, "Somme rural", book II, tit. 40. edition of 1021. p. 1474. 31 "Registre criminel de Saint-Martin-des-Champs", p. cvii ; "An- ciennes coutumes d'Anjou et du Maine", F, nos. 370, 1370, 1398, 1400, Vol. II, pp. 148, 504, 508, .')09, and I, no. 120, Vol. Ill, p. 277; L, nos. 319, 322, Vol. IV, pp. 27 and 275. 107 § ;}9/] THE MIDDLE AGES [Paut I, TiTLE II the death penalty or some otlier discretionary punishment was in- flicted if the victim died later or sufl'ered any mutilation ; ■'' when- ever the wound caused the loss of a limb, the offender incurred the penalty of like for like, even in Bouteiller's time ; ^^ in other cases the circumstances would atteimate or even remove the guilt. Beaumanoir puts the case of a person killing or maiming an- other in a scuffle ; he is guilty, if the victim belongs to the party against which he was fighting ; but it is no crime if the person belongs to his own band ; the latter case being evi- dently considered as a mere accident.^"* Any other use of force against the person was punished in various ways, gen- erally (being non-capital) by fines ; e.g. force used to prevent a person from making his will.^^ Insults were ordinarily treated like blows and wounds, — non- capital crimes punishable by fines. The various custumals, how- ever, differ as to details. Some distinguish two kinds of insults, treacherous and ordinary; the former are classed with blows causing sores, the latter with blows not causing blood to flow ; respectively punished by a heavy fine and a fine of five sous.'"'® The " Grand Coutumier de Normandie " distinguishes according to whether or not the insult consists in charging an oft'ense which, if true, would threaten a penalty of life or limb ; here the insult is criminal, and is punishable by a heavy fine of chattels ; in the other cases the offense is a minor one.^^ An insult to a son or to a wife is deemed to have been offered at the same time to the father or to the husband ; so that the oft'ender commits two oft'enses and incurs two fines.^^ Finally, certain insults are of special grav- ity on account of the status of the persons addressed, and are '^ "Registre criminel de Saint-Martin-des-Champs", p. 35; "An- ciennes eoutumes d^Anjou et du Maine", E, no. 80, Vol. I, p. 432; I, no. 99, Vol. Ill, p. 261; "Grand coutumier de Normandie", chap. 74, ed. Gruchy, p. 175. The term "mehaing" applied specifically to a wound causing mutilation. 33 Bouteiller, "Somme rural", ed. 1621, book II, tit. 40, p. 1492. ^* Beaumanoir, chap. 69, no. 8, Vol. II, p. 487. 36 Bouteiller, "Somme rural", ed. 1621, book II, tit. 40, p. 1490. 38 "Etablissements de Saint Louis", book I, chap. 154 and book II, chap. 25. — "Coutume de Touraine-Anjou", no. 143. — "Anciennes eoutumes d'Anjou et du Maine", F, nos. 1336 to 1337, 1342, 1349, 1399, 1422, Vol. II. p. 495; I, nos. 121 and 122, Vol. Ill, p. 278; L, no. 322, Vol. IV, p. 275. 3' "Grand Coutumier de Normandie", chap. 86, ed. Gruchy, p. 196. Moreover, one who orders an insult is punished as well as the one who uttered it: "Anciennes eoutumes d'Anjou et du Maine", F, nos. 1345 and 1350, Vol. II, pp. 497 and 498; "Li\Te des droiz et des commande- mens", nos. 287, 506, 592. 3* "Livre des droiz et des commandemens", nos. 608 and 648. 168 Chapter VI] FRANCE IN THE LATER MIDDLE AGES [§ 39/ punished by a fine of sixty sous or more in discretion.^^ According to Bouteiller, one who insults the king, his feudal lord, or his mother, is to be exposed on the gibbet for three days, branded, and banished from the province.'*" This jurist is the first to distinguish insult from defamation ; but of the latter, however, he makes virtually a serious insult entailing a fine of sixty sous ; this rule is found also in most of the other custumals.'*^ Though blows, insults, and wounds are (as already remarked) in general punished by more or less heavy fines, yet if the of- fender cannot pay he is imprisoned for the debt. Most crimes against the family consist in offenses against women. There are, however, some which might be committed against men. Thus the crime of castration is punished like homi- cide.''- Bestiality is classed with rape, and is punishable by burning, both for men and for women.'*'^ In Beaumanoir's time, the crime of " rapt ", or the abduction of women, was very frequent ; the great jurist gives us on this topic some curious information. First he observes that one must be cautious in lodging an accusa- tion of this crime ; for often girls or women falsify when they assert that they have been carried off by force and ^•i()lence. It seems, moreover, that abduction was practised, not only to seduce or to marry an unmarried female, but also upon married women in order to get possession of the valuables which the women might take with them.^'' This offense of abduction incurred the death penalty ; but the offender could avoid it by marrying his victim, with her consent ; marriage then stopped the judicial proceedings.'"' Rape is no less grave a crime than abduction, and is also punish- able by death ; but the victim must make speedy complaint and exhibit visible signs of the violence.^'' If the rape was followed '' "Livre des droiz et des eommandemens", no. 651. ■•" Bouteiller, "Somme rural", ed. 1021, book 11, tit. 40, pp. 1477 and 148G. ■» Boideiller, "Somme rural", ed. 1621, book II, tit. 40, p. 1478. ''" "Livre des droiz ot dos eommandemens", no. 362. ^' " Registrc crimincl du riiatclct", Vol. I, pp. 225 and 567 ; "Registre eriminel de Saiiit-Marlin-des-Chanips", p. xcix. ** Beaumanoir, chap. 30, nos. 95 ct seq., Vol. I, p. 449. " "Aneienncs coutum(>s d'Anjou et du Maine", F, no. 1328, Vol. 11, p. 492; L, no. 288, Vol. IV, p. 264; "Livre des droiz et des eommandi'- mens", nos. 202, 762; Bnitteiller, "SomuK^ rural", ed. 1621. book 1. tit. 39, p. 477; book II, tit. 40, p. 1489. Tli(> i)uiiishmen( would have bec-n the same if a man or a child had l)een carried ofT. See \\\v text lirst ciled. ''"On this suliject one will find in the Custunials munerous details : see Marnier, "Etablissements de Normandie", p. 34 (7 .sr^. • " !.,ivre des droiz et des eommandemens", nos. 335, 345, 902; ".\neieniies coutumes d'Anjou et du Maine", A, no. 9, Vol. I, p. 45 ; F, no. 1320, Vol. 1 1, p. 489 ; 169 §39/] THE MIDDLE AGES [Paut I, Titlk H by marriage, it was not punished, — as in the case of alxkiction. If both crimes were committed, suhse(|uent marriage excused hoth.^'^ Carnal intercourse by consent with an unmarried female was no crime ; but she must be taken as wife, or given a dowry according to her condition in life.^^ But a guardian who takes advantage of his ward is punished by confiscation of all his goods, banishment, and even by death penalty if he returns from banish- ment.''^ The most serious crimes against marriage are, naturally, bigamy, adultery, and marriages between persons prohibited by the Church. Bigamy included, not only the marrying of two living wives, but also the marrying a widow. •''° The punishment for adultery varied greatly, according to locality ; sometimes it was severe, and sometimes altogether ridiculous. Mostly no punish- ment needed to be inflicted ; for the regional Customs gave the husband the right to kill his wife when she was caught in the act.^'^ According to the " Li vre de jostice et de plet " adulterers might crave pardon of the king for the first two offenses ; the third time they incurred the penalty of exile and of general confiscation.''^ At Villefranche, in Perigord, adulterers had the choice between a fine of a hundred sous or running naked through the town ; "* according to the Custom of Prissey, near Äläcon, adulterers paid a fine of sixty sous or were whipped through the town.'"* This alternative penalty, shameful and contrary to public decency, was widely spread in the IMiddle Ages, especially in the South, though finally its objectionable character was recognized ; in Bou- teiller's time it seems to have disappeared in the North, where L, no. 288, vol. IV, p. 264. See also "Livre de jostiee et de plet", pp. 282, 285, 290. " "Anciennes coutumes d'Anjou et du Maine", F, no. 1367, Vol. II, p. 503. *^ "Anciennes coutumes d'Anjou et du Maine", F, no. 1319, Vol. II, p. 488. " Bouteiller, "Somme rural", ed. 1621, book I, tit. 39, p. 479. *" They had wished also to maintain that the husband became bigamous when he had relation with a woman knowing that she was an adulteress. See on these different points, "Anciennes coutumes d'Anjou et du Maine", K, nos. 13 el seq., Vol. IV, p. 50 ; L, nos. 441 and 442, Vol. IV, 326. — See also "Livre des droiz et des commandemens", no. 836, which does not admit bigamy on the part of the cleric in a particular case. " Beaumanoir, chap. 30, nos. 102, 103, 104, Vol. I, pp. 455 and 456. ^2 "Livre de jostice et de plet", p. 280. " Royal Letters of October, 1357, in the "Recueil du Lou\Te". Vol. Ill, pp. 201 and 210. " Royal Letters of October, 1362, in the "Recueil du LouvTe", Vol. Ill, p. 597. 170 Chapter VI] FRANCE IN THE LATER MIDDLE AGES [§ 39/ the penalty of the fine only was inflicted.^^ Occasionally, the judi- cial duel was ordered in litigations of this kind, e.g., by a judgment of the Paris Parliament in 138G, as related by Jean Le Coq, who was counsel for one of the accused and a witness of the combat. '^^ Those who, without papal dispensation, contracted marriages for- bidden by law suffered a general confiscation of all their posses- sions, in favor of the lord high justiciar ; this penalty was clearly borrowed from the Roman law.''^ Of crimes against property, arson is the gravest and theft the most frequent. ]Most custumals punish the crime of arson by death; others are less severe, but perhaps more cruel, for they speak of loss of the eyes or of some other inhuman punish- ment.^^ The medieval jurists are usually severe against theft, or larceny, which they class in most cases as a capital crime. The Custumals distinguish several kinds of theft. Thus theft with violence is termed " violerie ", " eschapelie ", " force " ; it is virtually a distinct crime, punished with particular severity, almost always by death.^^ Whether the stolen property was taken from an owner, a borrower, or a pledgee, was immaterial ; either might bring the charge, if within a year from the crime. ''° Although the medieval law had generally outgrown the principle of primitive law, which deemed the crime more serious when the offender was taken in the " Bouleiller, "Sommo rural", edition of 1621, book II, tit. 8, p. 1257. ^^ Jean Le Coq entertained the belief (still surviving in his daj') that God intervened in these ordeals, and yet the man who was killed at the duel in question was innocent, as was proved by the testimony of the guiltv person himself, who confessed it on his deathbed. See Isamhert, Vol. VI, p. Ö19. " Cf. Const. G, "De incestis nuptiis", VI, 6; and "Livre des droiz et des commandemens", no. 837, Vol. II, p. 232. ^^ "Livre de jostice et de plet", pp. 279, 30.5; "Li\Te des droiz et des commandemens", no. 347. See also the ordinance of Philip V, Novem- ber 16 to 19, 1319, an ordinance ratified by the queen, Countess of Hour- gogne, against incendiaries and those who, undi-r pretext of private war, disturbed public peace in the earldom of Bourgogne : Isambeii, Vol. Ill, p. 231. ^' "Etablissements de Saint Louis", book I, chap. 82; "Grand Cou- tumier de Normandie", chap. 71; "Livr(> de jostic(> et de plet", 280, 285, 300. — "Anciennes coutumes d'Anjou et du Maine", B, no. 22, Vol. I, p. 78; F, no. 1334, Vol. II, p. 493; "Coutume de Bayonuo", chap. 114, no. 9. ^"Assises de Jerusalem", chap. 58; Jean d'Ibelin, chap. 119; Pierre de Fontaines, "Conseil", chap. 20, no. 10; "Ancien coutumier de Bourgogne", chap. 18; Beaumnnoir, chap. 31, no. 15, Vol. I, p. 464. This jurist does not, however, allow the bailor to recover posst^ssion of the property unless the bailee is insolvent, chap. 31, no. Ki. See also in re.spect to theft, "Livre de jostice (>t de ph't", pp. 279, 281, 292. 171 § 39/] THE MIDDLE AGES [Pakt I, Title II act (because the victim then feels more keenly the violation of his right) , yet in the case of theft we find the law still directly influenced by the early Germanic traditions, for the thief taken in the act is punished with great severity. The notion of taking in the act was fulfilled if the owner pursues without delay or relenting and succeeds in catching him while still in possession of the stolen goods. ^^ The offender is then brought before the court of the place where he has been caught, and is not allowed to purge himself ; while if not taken in the act, he must have been brought before the judge of the lord on whose land he resided, and would have been allowed to defend himself.^^ At the period when the Salic Law treated theft as a private wrong only liable to a fine, the imperial Capitularies were already making it a genuine violation of the public peace, severely punished ; the thief was to have his eye put out ; for a second oft'ense his nose was cut off ; for a third, he was condemned to death. ^^ The medie- val Custumals preserved, in general, this system, introducing no change except as to the manner of mutilation ; ^^ thus Liger re- quires that, according to the kind of animal stolen, the thief be condemned to death, have his eyes put out, or his nose cut off.^^ But furthermore, the Custumals punished certain thefts (even when the oflPender was not taken in the act) with particular severity ; they imposed the death penalty, with confiscation of property, according to the circumstances of the crime or the rank of the persons, for a theft by night, or with violence, or by a servant from his master, or by a vassal from his lord.^^ Conversely, thefts " "Tres aneienne coutume de Bretagne", chap. 101; "Grand Cou- tumier de Normandie", chap. 71, which requires, however, that the victim of the theft should raise a hue and cry. According to the Custom of Bayonne (chap. 67) if one night has elapsed since the theft, the offender is not taken in the act. ^2 "Assises de la cour des bourgeois", chap. 241 ; "Etablissements de Saint Louis", book II, chap. 2. — Beaumanoir, chap. 30, no. 93 and chap. 31, nos. 1 et seq., no. 14; "Grand Coutumier de Normandie", chap. 23. For the curious particulars of the procedure for theft, see Jobbe-Duval, "Etude historique sur la revendieation des meubles en droit frangais." «3 Capit. of 779, Pertz, "Leges", I, 38. " "Coutume de Touraine-Anjou", no. 22; "EtabUssements de Saint Louis", book I, chap. 32. ^* "Anciennes coutumes d'Anjou et du Maine", F, no. 1379, Vol. II, p. 505. 8^ "Assises de la cour des bourgeois", chap. 232 ; "Charte communale d'Abbeville", Art. 2; "Olim", Vol. I, pp. 240 and 328; "Li\Te des droiz et des commandemens", nos. 347 and 580; "Anciennes coutumes d'Anjou et du Maine", B, no. 28, Vol. I, p. 81 ; C, no. 26, Vol. I, p. 217; D, nos. 33, 81, 82, Vol. I, pp. 406, 432; F, nos. 796, 797, 1371, 1373, 1382, Vol. II, pp. 288, 504, 505; I, no. 101, Vol. Ill, p. 262. 172 Chapter VI] FRANCE IN THE LATER MIDDLE AGES [§ 39/ of least importance, involving objects of little value, were punish- able only by banishment or by fine.^*^ This general system is still found in Bouteiller. He considers larceny, when the offender is taken in the act, as a capital crime, if the stolen object is worth more than five sous ; below this sum, it is punishable the first time by the loss of the ear, the second time, by death. Theft not taken in the act is punishable only by a fine of fourfold value in favor of the lord, or by the lash if the offender is insolvent. Bouteiller is, however, more severe for certain thefts, such as robbing of graves, children, and cattle; but, on the other hand, he recommends the judges to be indulgent toward the man who has stolen through necessity. Finally, he classes with theft (but not confusing them) certain acts which to-day would consti- tute breach of trust, cheating, or other forms of dishonesty ; thus he inflicts a fine of fourfold upon the man who, knowingly, sells the same object to several persons. ^^ The crime oi forgery (falsification) is also a property offense, and has numerous varieties : false money, false merchandise, false meas- ure, false writing, false complaint, false witness, false oath, etc. All these ofl'enses are, in general, capital, and are severely penalized. Counterfeiters are punished by death or by the loss of the eyes ; quite often they are condemned to be thrown into a boiling cal- dron.^^ Bouteiller regards counterfeiters guilty of " lese majeste " ; coinage was, according to him, a royal prerogative, and he demands that they be boiled ; but he warns us against confusing with buyers of false money.^° He who counterfeits merchandise must have his hand cut off and the merchandise destroyed ; if he has merely sold false merchandise without manufacturing it, he incurs a fine of sixty sous."^ He who uses false measures is quite often con- demned to the loss of the thumb. "- " "Registre criminel do Saint-Martin-des-Champs", pp. 94, 104, 111. «8 See on this last point "Somme rural", ed. 1621, book II, tit. 40, p. 1480, also p. 1471; "Livre de jostiee et de plet", pp. 104 and 280. For the general theory of theft or larceny, see book I, tit. 35, p. 318. «9 "Li\Te de jostioe et de plet", p. 281 ; "Registre criminel do Haint- Martin-des-Champs", p. 97; "Anciennes coutumes d'Anjou et du Maine", C, no. 25, Vol. I, p. 215 ; F, no. 1304, Vol. II, p. 502 ; L, no. 289, vol. IV, p. 265; "Li\Te des droiz ot des coniniandemens", no. 347. See also Boutaric, "La F'rance sous Philippe le Bel", p. 321. ^o Bouteiller, "Somme rural", book I, tit. 39, p. 481, where interesting details can be found on the various crimes whose object may be money. " "Livre des droiz et des commandemens", no. 260, Vol. 1, p. 411; "Anciennes coutumes d'Anjou et du Maine", B, no. 158, Vol. I, p. 163; C, no. 144, Vol. I, p. 345; D, no. 115, Vol. I, p. 445; F, nos. 1393 and 1420, Vol. II, p. 507 and 513 ; L, no. 325, Vol. IV, p. 280. " "Anciennes coutumes d'Anjou et du Maine", B, nos. 154 and 157 173 § 39/] THE MIDDLE AGES [Part I, Title II Forgery, properly speaking (consisting of forging or altering a document) is, in general, punisha})le by the pillory ; but if the offender is an officer or a notary, then by death. ^' The/a/.w icitness is threatened with the pillory, a long imprison- ment, or a discretionary fine ; ^'^ he who brings false complaint is threatened with banishment or fine.^^ But they are less severe against false oath, which is only punishable by a fine of sixty sous, except in serious cases when this pecuniary penalty then be- comes discretionary.^® With offenses against property can be classed those against the game and fish laws. Although the day of exaggerated penalties for such cases had not yet come, the hunting or the fishing rights of the feudal lords or the king were already protected by severe measures. The law finally reached the general principle that hunting was to be reserved for certain persons. An ordinance of January 10, 1396, proclaimed that nobody had the right to hunt unless he were a noble or a townsman living on his property ; hunting implements found in the houses of plebeians were to be confiscated; peasants were allowed only to keep watch-dogs, to scare away wild animals from the crops. "^ Some time earlier, the right to hunt in the royal forests had been regulated by special ordinances ; royal Letters of September 7, 1393, forbade the hunt- ing of wild animals in the royal forests unless by royal Letters signed by the Duke of Burgundy as general master of the hunt ; and an ordinance of ]March 29, 1396, required besides, that these Letters should be verified by the master-general of waters and forests. ^^ Violations of game and fish laws were still classed in Bouteiller's time among non-capital crimes. He who hunted or fished at the expense of his lord forfeited his personal property; in other cases a mere fine, usually sixty sous.^^ He who stole game Vol. I, pp. 162 and 163 ; C, nos. 142 and 144, Vol. I, p. 344 ; D, no. 115, Vol. I, p. 445; F, nos. 1392 and 1409, Vol. II, pp. 507 and 510; I, no. 137, Vol. Ill, p. 288 ; L, nos. 322 and 325, Vol. IV, pp. 275 and 280. " ''Li\Te de jostice et de plet", p. 284; "Registre crimiuel de Saint- Martin-des-Champs", p. cii ; "Li\Te des droiz et des coinmandemeus", no. 285; "Anciennes coutumes d'Anjou et du Maine", F, no. 1331 and 1332, Vol. II, p. 493. ''* Beaumanoir, chap. 30, nos. 45 et seq.. Vol. I, p. 424. Cf. Vol. II, pp. 118, 396, 398. "^ Bouteiller, "Somme rural", book II, tit. 40, edition of 1621, p. 1491. "8 Beaumanoir, chap. 30, nos. 87 et seq.. Vol. I, p. 433. " Ord. of January 10, 1396, Isatnbert, Vol. VI, p. 772. ^^ Isambert, Vol. VI, pp. 756 and 770. ^^ "Anciennes coutumes d'Anjou et du Maine", D, nos. 113 and 127, Vol. I, pp. 444 and 451 ; I, nos. 135 and 154, Vol. Ill, pp. 287 and 300. — 174 Chapter VI] FRANCE IN THE LATER MIDDLE AGES [§ 39/ or fish incurred usually a similar fine ; if by night, he incurred death.80 There were also numerous minor police measures, usually inflict- ing only fines, although at times very heavy ones. At this period the issuance of royal ordinances had not become frequent, as it (lid in the following period ; but there was a legislative activity in the interest of public peace and order, and, where royal ordinances are lacking, we find measures of this kind in the regional Customs and in the town statutes. Gambling is what the royal power chiefly endeavors to repress ; the very multiplicity of ordinances seems to prove their inefficiency.^^ Possibly these prohibitions were prompted, rather by the desire of preventing men from amus- ing themselves at the expense of military service, than of protecting them from pecuniary ruin. In Paris, an ordinance of the provost forbade card playing, tennis, bowling, dice, and nine-pins in the ta\'erns ; ^- this was indeed a police measure intended to prevent quarrels. Bouteiller recommends that keepers of gambling houses be condemned to a fine of sixty sous.^^ It was forbidden to maintain houses of ill-fame; mostly local customs regulated sexual morals. At times the penalty was very severe ; according to the " Livre de jostice et de plet," the keeper of a house of ill-fame is to be whipped and banished from the city, and his property confiscated to the king.^ Other police measures prohibited the wearing of masks in the street ; going about with weapons or armor ; pasturing animals in the wheat at certain times of the year.^' Vagrancy is a plague of all epochs; but in the Middle Ages it seems to have been less serious than is generally believed ; for abbeys and monasteries were always ready to shelter indigent "Livre des droiz et des eommandemens", no 437. — Bouteiller, "Somme rural", book II, tit. 40, edition of 1()21, p. 1476. '" Hcnnmnnoir, chap. 30, no. lOö, Vol. I, p. 4ÖG. — Ord. of Philip the Fair of 1299, Isambert, Vol. 11, p. 724. 8' Ordinance of Philip the Fair of 1319 forbidding, under penidty ()f a fine, the playing of dice, backgammon or trick-track, quoits, nine-pins, billiards, bowling and other similar games whicli divert men from military drills : Isnmherl, Vol. Ill, p. 242 ; Ordinance of Cliarles V of April 3, 13t)9. which forbids, under penalty of a line, the participation in games of chance and enjoins the practice of the bo\v and cross-bow: Isambert, Vol. Ill, p. 352. S2 Januarv 22, 1397, Isambert, Vol VI, p. 782. «» "Somme rural", book 11, tit. 40, ed. 1021, p. 1473. ^* "Li\Te de jostice et de plet", p. 282. "Ord. of Charles VI of March 9, 1399, Isambert, Vol. VI, p. S44 : Bouteiller, "Somme rural", book II, tit. 40, ed. 1021, pp. 1474 and 1483. 175 § 39/] THE MIDDLE AGES [Part I, Title II persons. Still, we find at times in the old regional Customs meas- ures against vagrants ; magistrates may arrest them, imprison them temporarily, examine them, and if no crime can be charged against them, may expel them.**'' Naturally there were also at this period fiscal offenses, — non- payment of fees or tolls for crossing fields, indirect taxes on wines, salt, and other articles; ^^ but they offer nothing exceptional, and are common to all times. What is more curious, and peculiar to the period, are certain offenses, half civil, half feudal, which con- cern the property-system, — for instance, taking possession with- out the seisin of the lord ; delay in paying quit-rents, taxes on sales, or similar dues ; all of them misdemeanors, generally punishable by fine.^^ We note, also, that Beaumanoir considers disseizin and disturbance of possession as genuine offenses, and therefore he treats of them after the other misdemeanors.^^ Certain offenses, equally characteristic of the time, may be designated offenses of procedure. The extreme rigor of the formal- ities of judicial procedure in the ]\Iiddle Ages is well known. The observance of the strictest formalities was sought by severe methods ; a violation resulted not only in the loss of the case, but very often also in a fine, at times even very heavy ; and the men of law were the more insistent on this respect for formalities as the fines benefited the lords. These penalties imposed by the sheriff for errors of procedure were an important time of revenue for the lords. For ample proof of this, one may consult the old accounts of the Exchequer of Normandy.^° Sometimes the regional Cus- toms, showing pity on the poor plaintiffs, exposed as they were every instant to a great variety of fines, conceded the right to ask permission to speak without incurring the dangers of technical errors ; the lord or his representative could grant them this favor, or, at any rate, up to a certain sum.^^ A defendant especially ran 8^ "Anciennes eoutumes d'Anjou et du Maine", D, no. 84, Vol. I, p. 434; F, no. 43, Vol. II, p. 48; I, no. 103, Vol. Ill, p. 264; L. no. 294, Vol. IV, p. 267. " Bouteiller, "Somme rural", book II, tit. 40, ed. of 1621, p. 1484. ^^ Beaumanoir, chap. 30, nos. 38 to 45. He who is accused of not paying: his quit-rent, his field-rent in kind or similar dues, import duties or town duties, mav, however, clear himself by oath: Beaumanoir, chap. 30, nos. 68, 70,' 71, Vol. I, p. 434. ^^ Beaumanoir, chap. 32, Vol. I, p. 465. ^^ Cf. Delisle, "Des revenus publics en Normandie au XIP siecle", in the "Bibliotheque de I'Ecole des Chartes", 3d series, Vol. Ill, pp. 105 et seq. Cf. " Great Roll of the Pipe ", I, Richard I, 71. " Roisin, "Franchises de Lille", p. 29, no. 6. Cf. Brunner, "La parole et la forme dans I'aneienne procedure fran§aise", in the "Revue 176 Chapter VI] FRANCE IN THE LATER MIDDLE AGES [§ 39/ great risk, from the very beginning of the trial ; in fact, he was obhged, under pain of a fine, if ordered by the judge, to answer word by word the charge formulated against him ; ^- he even risked falling " in misericordiam curiae ", which gave ground for a discretionary fine, so that, in strictness, the lord would have the right to seize all his personal property. If the defendant wished to plead an excuse, he could do so only after making answer, or, at least, together with his answer.^'^ With his proof especially the law was severe ; any technical fault in furnishing it forfeited the right to furnish it, and brought on also the fine which would have been inflicted in case the proof, if properly made, had not been complete. In taking an oath, the formula, the utterance, the attitude of the swearer, the manner of placing his hand, were all strictly prescribed. " Tres ancien Coutumier de Xormandie " gives curious details on this subject. The inexperienced plaintiff (it tells us) will fall on his knees to take oath, without awaiting the judge's order; for this alone he is " in misericordiam ducis", and the clerk records the fine in his register ; whereupon, the party rashly rises, to retrieve his error, but this time commits another, for he should have awaited the order of the judge, and for this second error he incurs a new fine.^^ One might multiply examples, but they are too well known to need dwelling upon.^^ The counsel (" for-speaker ", " prolocutor ") ran less danger than the client himself ; nevertheless, he must take care not to go beyond his powers, for later his client might disavow his acts, and if the client was successful in this, the counsel incurred, in his turn, a fine in favor of the lord.^" Once sentence was passed, the ai)i)eal must critique de legislation et de jurisprudence", nouv. ser. I, 1871-1872, pp. 22, 480, [reprinted in his "Forschungen", 1894; originally published in "K. K. Wiener Akademie der Wissenschaften", Vol. 77, p. Oöö. — Ed.]. äi See "Ohm", Vol. II, p. 744, no. 56 and p. 774, no. 114. »3 See for example Beaumanoir, chap. 19, no. 11. Cf. Brunncr, loc. CiL, pp. 34, 237, 240, 241. ^ "Trfs ancien Coutumier de Normandie", ed. Tnrdif, chap. 0."), p. 56: "lo, Placitatores vero ponebant in misericordia simplicem populuni, quoniam absque precepto justicie genua sua flecteVumt venientes ad juramenta sua. Cum igitur, genua flectentes, se audissent accusari di^ afflexione genuum, surgcbant ; placitatores vero eos accusabant, quoniam surrexerant absque jjrecepto justicie, et ita dericus justicie (>os in pclHcula sua scriliebat in misericordia. 2o, De hoc dixit Xormannus d'Orgieville quod ipse tantum vixerat ut videret ludere in curia domini. Regis ad Bernardum Becoantem, sicut pueri ludentes dicunt : 'Bernarde, surge'; qui, nisi cito surrexerit, in facie intingetur. Eodem modo scribit elericus in pellicula intingit populum simplicem injuste in nusi'ricordia." ^' See in this respect Bruitncr, op. eil., pp. 246, 250, 254, 2.")0. * Beaumanoir, chap. 5, nos. 7 and 14; Destnares, "Decisions", 412. Cf. Brunner, op. and loc. eil., p. 553. 177 §;}«)/] THE MIDDLE AGES [Pakt J, Titlk IL he takcMi on the spot and iic('()r(lin<:j to formula, under pain of losing the riglit of appeal and being fined. There was also a fine against the appellant if defeated on the main point ; and a fine against the judges of the previous trial if he wins.^^ After the formalism disai)peared, the procedural fines were preserved, but with a different aim, to punish the bad faith of plaintiffs. Thus, there were fines, more or less heavy, reacfiing at times the sum of sixty sous, against one who failed to present himself on continuance of a civil case ; ^^ against one who wrongly opposed an attachment ; against one who lost in an action for novel disseizin, or of breach of peace, of truce, or of faith (as formerly against one who lost his appeal) ; against the debtor who denied his debt or his written agreement ; against the creditor if he claimed twice what was due him, or if he arrested his debtor without right ; against one who bought property in dispute ; and against a plaintiff wdio summoned the defendant before the wrong judge.^^ Judges and lawyers were equally punished when they failed in their duty. If the judge took a bribe, he incurred a dis- cretionary fine, the loss of his office, and damages.^"" The lawyer guilty of the same offense suffered the same penalties. A discre- tionary fine and the loss of office were the penalties for the counsel or the attornc}^ who made with a client the agreement of " quota litis." ^°^ The counsel whose acts were disavowed for excess of authority also incurred a fine ; as also one who insulted a client. ^°^ It seems that the mere act of pleading without power of attorney was a misdemeanor, although no disavowal followed ; the of- fender must pay the judge two capons.^^'^ The clerk or the bailiff also, who drew up a document and forgot to date it, incurred a fine of two capons to the judge. ^"^ Besides crimes and misdemeanors of types common to all ages, ^^ Beaumanoir, chap. 61, nos. 44 and 51, Vol. II, pp. 391 and 395; "Anciens eoutumiers de Picardie", ed. Marnier, pp. 38, 58, 61, 72, 84. '^ Bouteiller, "Somme rural", book II, tit. 40, ed. 1621, p. 1467. According to the "Registre criminel de Saint-Martin-des-Champs", he who failed to present himself in a criminal case was to be banished ; see pp. cv and evi. 99 Bouteiller, "Somme rural", book II, tit. 40, pp. 1467 to 1472, 1479, 1480, 1483. •00 Bouteiller, book II, tit. 40, p. 1481. '01 Bouteiller, book II, tit. 40, p. 1482. '02 Bouteiller, book II, tit. 40, p. 1482. 103 [Pqj. ^[^g narrow limits of the attorney's authority at this period, see Brunner's essay, translated in III "Illinois Law Review" 257 (1908), "The Early History of the Attorney." — Ed.] 10* Bouteiller, book II, tit. 40, p. 1470. 178 Chapter VI] FRANCE IN THE LATER MIDDLE AGES [§39/ the feudal State, with its special social relations, developed what may be termed feudal offenses; they formed the sanction for the duties of fealty, faith, and homage imposed on the vassal toward his lord, and the duty of protection imposed on the lord toward his vassal. The vassal guilty of treason forfeited his fief, which returned to his lord ; on the other hand, the guilty lord lost the vassalage due him.^*''^ If the vassal commits at the same time, a treason and a common law offense, as, if he makes an attempt on his lord's life, or on the honor of his lord's daughter, both the feudal forfeiture and the ordinary penalties are inflicted.^'^^ The violation of sworn faith must not be confused with the neglect of faith and homage; the latter offense, during the early Middle Ages, also entailed absolute forfeiture, but later it was punishable only by conditional forfeiture.^"^ Less serious feudal offenses were in general punishable only by fines. Thus, in the earlier period, according to the " Assises de Jerusalem," the vassal owed a sub- sidy or " aid" (on penalty of a felony) only when needed to ran- som his lord from the enemy ; in later times, the failure to pay any sort of subsidy or " aid " led only to a suit by the lord against the vassal. ^''^ In Germany and in Lombardy neglect of military ser- vice led to confiscation of the fief ; in France it was early conceded that a mere fine was imposed for refusal to enter the army or to pay for exemption in time of war.^°^ As feudalism had led to the creation of offenses peculiar to that social status, so also the influence of the Church, extending over the secular life, had led to the recognition of certain offenses special to this period. The most serious of these special crimes, repressed '"^ Beaumanoir, chap. 45, Vol. TI, p. 214. — Jean d'Ibelin, pp. 100 el seq.. Vol. 1, p. 303. lOG "Anciennes eoutumos d'Anjou et du Maine", C, no. 4S, Vol. I, p. 244. So also, if the olVcnise had been committed by tlie lord toward his vassal; see "Etablissements de Saint Louis", book II, ehap. ."JS, ed. Viollet, Vol. II, p. 4()3 ; "Aneiennes coutumes d'Anjou et (hi Maine", B, no. 55, Vol. 1, p. 93 ; C, no. 49, Vol. I, p. 245 ; E, no. 129, Vol. I. p. 4.-)2 ; F, no. 940, Vol. II, p. 33G. — Without directly olTendinp his hwd. tho vassal might commit an infamous deed, for instance, abjure tlu> (^hristian religion ; in this case also there ensued dissolution of the feudal lien. '"^ Jean Le Coq, "Question 172", cites a decree of 1388 which rt'fuses to the lords the right of confiscating the fief, but he remarks that this is a new rule. '"a "Assises de Jerusalem", Jean d'lhelin, chap. 2(»9, Vol. I, p. 307; "Etablissements, coutumes, assis(>s et arrets de rEchicpiicr de Xor- mandie", ed. Marnier, pp. 33 and 101. '"^ Brüssel, "Nouvel examen de I'usage general des fiefs", Vol. I, p. 167. As for Germany and Lombardy, see " Libri feudorum", II, 24, G; "Constitutio de expeditione romana", § 2, I'crlz, "Leges", Vol. II, p. 3. 179 § 39/] THE MIDDLE AGES [Part I, TiTLE II with the greatest rigor, was naturally the crime of heresy. In Gaul, under the Merovingians, and in Italy, under the Lombards, a certain regime of tolerance had been established between Cathol- icism and Arianism. Under the Carolingians we still find no sys- tematic legislation against heretics ; at that epoch heresy was rare and created little apprehension. But the appearance of Catharism, toward the year 1000, gave rise to a radical change in the law. Catharism — the heresy of the Albigenses — spread with alarming rapidity through Italy, Spain, France, and Germany. In a society like feudalism both civil and religious, it constituted one of the gravest dangers. Thus, as soon as heretics became numerous, the Church and royalty stopped at no measure to eradicate them. The Church no longer contented itself with sending heretics before the ordinary tribunals ; it created the tribunal of the Inquisition, or the Holy Office, having a special jurisdiction over offenses against the faith. It deprived heretics of the benefit of the ordinary canonical procedure, which conceded important guarantees to the accused : in particular, the accused could not obtain the names of the witnesses and of the informers; the disqualifications of wit- nesses disappeared in all trials of heretics; the accused was re- fused the assistance of a lawyer ; and, finally, torture is introduced, following the Roman law\ The repression of heresy led to the re- appearance of this cruel expedient ; for apparently torture was ap- plied but little by the judges of the Church, apart from trials against heretics. But unfortunately, it now came into general use in secular courts. Following the Northern practices, the regions of the South came to adopt the punishment of burning alive, as the usual one for heretics ; although this practice had no justification either in statute or in tradition. As early as the 1000 s, this terrible penalty had been employed with extreme rigor in Germanic countries and in the North of France. But in the regions of Southern France the treatment of the Albigenses at the same period was markedly differ- ent ; during the first part of the century, they incurred spiritual penalties and were rarely put to death ; during the second part of that century, and even to the end of the 1100 s, Catharism was even tolerated. Several Councils undoubtedly ordained measures against the heretics, but it does not seem that they were seriously applied, and at all events they resulted only in the confiscation of property and imprisonment, not the death penalty. The pon- tificate of Innocent III (1198) marked a new phase in the liistory 180 Chapter VI] FRANCE IN THE LATER MIDDLE AGES [§ 39/ of the movement against heresy, and inspired the crusade against the Albigenses. Without enacting new penalties, it strove to en- force existing laws, by stimulating the zeal of princes, and by caus- ing most of these Church laws to be adopted also by the cities in their statutes. Finally, in 1209, the crusaders of the North, invading the southern provinces, began to burn all heretics. To this invasion we owe the introduction of the penalty of burning in these coun- tries. From that time on, burning became the common punish- ment of heretics throughout France. ^^° Aubry de Trois Fontaines gives us the account of the punishment of 183 heretics who were burned at Mont Aime in the presence of a large number of priests and an immense concourse of people. ^^^ As is well known, Jeanne d'Arc was also burned for heresy, on the 29th of May, 1431. At times a different penalty was used ; thus, in 1381, Hugucs Aubriot was condemned for heresy to spend his life in a pit subsisting on bread and water.^^- But these cases were exceptions. In the 1200 s the climax of severity was reached in punishing the heretics of the South, — the Albigenses. The Church displayed a great activity, and at its instigation royalty also adopted the severest measures. The Lateran Council had already ordered, at the beginning of this century, the extermination of heretics; their personalty was confiscated to the civic authorities (except in case of clerical heretics, when it reverted to the Church). ^^^ In France a royal ordinance was issued in 1228 against the heretics of Languedoc.^^^ The following year the Council of Xarbonne excommunicated the Albigenses, required the presence of a priest when a will was executed, and appointed inquisitors in all i)arishes ; another Council held at Toulouse in the same year confirmed the Inquisition and enacted the most severe measures against heretics.^^^ "" Julien Havel has well shown this in his memoir entitled : " L'h^r^sie et le bras seculier au moyen age jusqu'au Xllle sieelc". Paris, 1881. However, he has not perhaps given enough weight to Roman iiilluenee, which, in time of danger, suggested to the Church the idea of more severe repression, extending the death penalty, and resulting in the adoption of torture against tlie heretics. See on this question an article by Ficher, in the "Mittheilungen des Instituts für österreischischen Geschichts- forschungen", 1880, pp. 177-226, 430; also Paul Meyer, "La chanson de la croisade contre les Albigeois"; Viollet, "Etablissements de Saint Louis", Vol. I, p. 2.')2. 1" Pertz, "Scriptores", Vol. XXIII, p. 944, quoted by Viollet, loc. cit. "2 Isnmhert, Vol. VI, p. .'jül. "' "Lateran Council of ril."")", chap. 3, in Ilcfclc, "Conciliengeschichte" (French translation). Vol. Vlll, p. 123; Labbe, Vol. XI, p. 74, col. 148. ii-' Isambcrt, Vol. I, p. 230. *'* Isamberl, Vol. I, p. 234. See also an ordinance of April, 1250, addressed to the inquisitors : ibid.. Vol. I, p. 254. 181 § :i[)f] THE MIDDLE AGES [Part I, TiTLE II Under pretext of heresy, all kinds of abuses seem to have got a foot- ing?, — especially arbitrary arrests ; thus, Letters of April 27, 1287, enjoined upon the seneschal of Carcassonne to resist arrests made under pretext of heresy, unless the crime were first proved. Begin- ning in the following century, these severe measures revive in force. No appeal is allowed from the sentences of bishops and inquisitors, either by heretics, or by their abettors or accomplices or their de- fenders.^^^ The magistrates must, under pain of the loss of their offices, swear to expel heretics from their jurisdiction ; the lords are also under obligation to rid their lands within a year of these criminals, under pain of confiscation in favor of the Catholics. '^^ The " Etablissements de Saint Louis " show us the procedure employed and the penalty usually pronounced against heretics. Every person suspected of heresy was to be arrested by the secular authorities and delivered to the bishop ; the latter examined him as to his faith ; if the accused was convicted of heresy, the bishop delivered him to the civil power, which condemned him to death, ordinarily by fire, declared him infamous, and pronounced the con- fiscation of his personalty in favor of the lord ; his real estate was respected, probably under the influence of old Germanic regional Customs.^^^ Finally, the houses serving as meeting places for heretics were to be razed ; though this practice was abolished by Letters of October 19, 1378.^^^ These proceedings exliibit the allotment of jurisdiction prevailing between the spiritual and the secular authorities. The Church claimed the right to prosecute heresy and apostasy, as well as witchcraft, adultery, and usury ; ^-° but since, on principle, it could not pronounce the death penalty and yet heresy merited it, it avoided the difficulty by delivering the offender to the secular authority. The Church tried him and declared whether he was guilty of heresy, then it turned him to the secular authority, which undertook to sentence him to death and execute him.^-^ "" Year 1298, Isamhert, Vol. II, p. 718. »^ Letter of December 15, 1315, in Isamhert, Vol. Ill, p. 126. '•* "Etablissements de Saint Louis", book I, chapters 90 and 127 ed. Viollet, Vol. II, pp. 147 and 240 ; "Li\Te de jostiee et de plet", p. 12 "Aneiennes coutumes d'Anjou et du Maine", B, no. 94, Vol. I, p. 120 C, no. 87, Vol. I, p. 304 ; E, nos. 77 and 87, Vol. I, pp. 430 and 435 ; F no. 1365, Vol. II, p. 502 ; I, nos. 96 and 106, Vol. Ill, pp. 258 and 267 . "Li\Te des droiz et des commandemens". Vol. I, no. 255; Bouteiller, "Somme rural", book I, tit. 28, ed. of 1621, p. 290. "9 Isamhert, Vol. V, p. 491. ■2" Beaumanoir, chap. 11, nos. 2 and 25, vol. I, pp. 157 and 167. ^^ " EtabUssements de Saint Louis", loc. cit.; Beaumanoir, chap. 11, nos. 2, 12, 25, Vol. I, pp. 157, 162. 167. 182 Chapter VI] FRANCE IN THE LATER MIDDLE AGES [§ 39/ Sorcery, witchraft, incantation, and other more or less similar acts, were considered as the next most serious crimes against the Church. During the period in question royal ordinances had not yet dealt with these crimes.^^^ Moreover, there was no accord, regarding these offenses, between the civil and tiie spiritual author- ities, as in the case of heresy. The Church claimed the prosecution of sorcery ; ^^^ but we see, from certain cases tried before the secu- lar courts, that the latter claimed to take cognizance whenever the sorcery or incantation had caused death or sickness ; '-^ under the influence of Roman law they had come, in certain cases, to con- sider sorcerers and soothsayers as guilty of homicide.^-' Bouteiller shows unheard-of severity against those convicted of this crime ; they are to be exposed on the gibbet, branded with hot iron, and even burned, according to the heinousness of the case.^-® He pronounces the same penalty against enchanters and those whom he calls the invokers of devils ; interpreters of dreams he would subject to the torture with iron broaches. But all these crimes he places under the jurisdiction of the secular authority, not under that of the Church.^^y Through the Church's influence, also, sodomy continued to be a crime ; this was borrowed from Roman law, which, according to certain writers, had been influenced by Hebrew law ; ^-* that Roman law borrowed this crime from Hebrew legislation, we do not believe has been pro\'ed ; but undoubtedly the Church bor- rowed it from Roman law, and brought about its acceptance in the ]\Iiddle Ages. Here, as with heresy, the Church finds the person guilty ; then the secular authority pronounces the penalty and en- forces it. This penalty consists, for the first two offenses, in a mu- tilation ; but on a further offense the offender is burned alive. ^-'•* 122 The first ordinance known against enchanters, sorcerers, and sooth- sayers is that of October 9, 1490; Isatnhert, VoL XI, p. 190, also p. 252. '23 Beaumanoir, chap. 11, no. 2.5, Vol. I, p. 107. 12* "Registre du Chatelet", Vol. II, pp. 312 el seq. '25 "Anciennes coutumes d'Anjou et du Maine", F, no. 1327, Vol. II, p. 491. 126 Bouteiller, "Somme rural", book II, tit. 40, ed. 1621, p. 148G. 127 Bouteiller, "Somme rural", book I, tit. 39, ed. 1021, p. 480. 12» Leviticus, xx, 13. Cf. " Collatio legum mosaicarum et romanarum ", in Giraud, "Novum Enchiridion", p. 293. '29 "Etablissements de Saint Louis", l)ook I. chap. 127, where the wijrd "herite" does not seem to be taken in its ordinary sense and to signify heretic, but designates rather a person guilty of sodomy. See ViolUt, "Etabhssements de Saint Louis", book 1, p. 2.')4. '-Livre de jostice et de plet", pp. 279 and 280 ; "Anciennes coutumes d'Anjou et due Maine", F, no. 130.5, Vol. 11, p. .502; Bouteiller, "Somme rural", book I, tit. 28, ed. 1021, p. 292 and the remarks of Charondas, p. 302. 183 § 39/] THE MIDDLE AGES [Paut I, TiTLE II The other and less liehious crimes chiimed for the Church's jurisdiction, bkusphemy, jukiltery, and usury, are not all necessarily religious. But, in view of the numerous ordinances enacted against blasphemy during the later Middle Ages, it may be asserted that this crime was of daily occurrence, and yet that neither the secular authority nor the Church were after all able to repress \t}^^ The treatises of the time tell us that blasphemy is punished with less severity than heresy ; but its punishment is severe enough : he who has indecently blasphemed against God or the Virgin IMary is to be fined, put in the pillory for three days, with a placard on which his crime is named in large characters, so that every one may know of it, and then he is banished from the country. ^'^^ There remains one offense which was unquestionably introduced by the Church, by a false interpretation of a passage from the Gospels, — the crime of usury y^"^ Jurisdiction was here con- ceded to both secular and Church courts, — at least, according to Beaumanoir ; ^^^ but it may be supposed that this double juris- diction came about only slowly, and that the Church at one period had claimed for its sole perquisite the prosecution of this crime, but merely failed to gain its point ; ^^^ The kings in the jNIiddle Ages issued many ordinances against usury ; ^^^ but this crime has had a 130 -^Ye note especially the following ordinances against blasphemers : Ord. of Phihp the Fair of 1293, Isambert, Vol. II, p. 692 ; ord. of Charles VI of May 7, 1397, Isambert, Vol. VI, p. 777 ; Letters of the Dauphin of January 8, 1409, Isambert, Vol. VII, p. 228; Letters of King Charles VI of September 7, 1415, Isambert, Vol. VIII, p. 424; Letters of the Dauphin Regent of October 8, 1420, Isambert, Vol. VIII, p. 648 ; ordinance of Charles VII of December 1, 1437, Isambert, Vol. VIII, p. 852. '^1 "Registre criminel de Saint-Martin-des-Champs", p. 102; Bou- teiller, "Somme rural", book II, tit. 40, ed. of 1621, p. 1486. The roj^al ordinances more than once enacted different punishments ; see the ordi- nances already cited. "2 See what is said in the writer's "Elements de droit frangais". Vol. I, p. 167. The Church no longer holds to-day that lending on in- terest is an offense. 1'' Beaumanoir, chap. 68, no. 5, Vol. II, p. 477. "^ In the 1000 s there was in Anjou a mixed tribunal for the repression of the crime of usury; see Viollet, "Etablissements de Saint Louis", Vol. I, p. 255. "B Ordinance of 1268, Isambert, Vol. I, p. 338 ; ordinance of 1274, Langlois, "Regne de Philippe III le Hardi", p. 299; ordinance of 1311, Isambert, Vol. Ill, p. 11; declaration of December 8, 1312, Isambert, Vol. Ill, p. 27; ordinance of July 28, 1315, Isambert, Vol. Ill, p. 116; ordinance of February 1318, Isambert, Vol. Ill, p. 201 ; ordinance of January 12, 1330, Isambert, Vol. IV, p. 377 ; ordinance of March 25, 1312, Isambert, Vol. Ill, p. 404; ordinance of May 19, 1337, Isambert, Vol. Ill, p. 428; ordinance of February 13, 1345, Isambert, Vol. IV, p. 517; or- dinance of September 18, 1350, Isambert, Vol. Ill, p. 573; ordinance of July 18, 1353, Isambert, Vol. Ill, p. 679; ordinance of March 1360, 184 Chapter VI] FRANCE IN THE LATER MIDDLE AGES [§ 39/ checkered career, and the very variabiHty of legislation on this subject is a proof of the mistake involved in penalizing a transac- tion perfectly lawful in itself. Thus, in certain cities (perhaps by virtue of local charter) lending at interest was permitted to all."'' The ordinance of Philip the Fair, of loll, while forbidding usury, permits, however, the lending on interest at the fairs of Cham- pagne and of Brie."^ Some Letters of June 2, 1380, grant to five financiers of the city of Troyes, the exclusive right to lend on usury. ^^^ Later, in December 1392, the same privilege is ac- corded for money to three Lombards of the same city for fifteen years.^^^ Again, an ordinance of March 6, 14üü, authorizes all inhabitants of Tournai to practice usury .^^° But on the whole the status of usurers was always precarious in the Middle Ages. Jews and Lombards were often enough authorized to lend with in- terest ; and it is curious that lending at interest, though forbidden to the Jews among themselves, by the Old Testament, and also to the Christians, according to a false interpretation of the Gospel, '^^ was thus authorized as between Jews and Christians. One may, to be sure, explain this by the circumstance that from the religious point of view they were considered as strangers to one another ; but the permission given to the Lombards is more difficult to ex- plain, and can only be attributed to the exigencies of commerce. However, both Jews and Lombards were continually subjected to the most arbitrary measures. In 1270, they were expelled from the kingdom ; ^*- though presumably they soon returned, for ordinances were issued against usury in 1311, 1312, 1315, and 1318.^^^ In 1330, debts due to usurers were reduced by one third. This was evidently a measure destined to prevent the ruin of dol)tors, on the theory that nothing is more ruinous than the compounding of interest ; but, the higher the interest the more ra{)idly it compounds, and the more danger a money-lender runs the higher is the interest, so that, in reality, this protection turned against the debtors.'" In 1332, the king took a wiser step, by fixing the rate of interest."^ But soon there is a return to even more radical prescriptions : in Isambert, Vol. V, p. 114; ordinance of December 5, 1363, Isambcrt, Vol. V, p. 157; ordinance of March 3, 1402, I.sriinhrrl, Vol. VII. p. 4(), etc. "^ See Giry, "Histoire de la villo et des institutions de Saint-Oiner", p. 296. 1" Isambert, Vol. Ill, p. 11. "8 Ibid., Vol. V. p. 530. >3ä Ibid., Vol. VI, p. 715. '" Ibid., Vol. X, p. 574. "' Luke, vi, 34 and 35. 1« Immberl, Vol. 11, p. 651. '" Ibid., Vol. Ill, pp. 11, 27, 116. 221. '^^ Ordinance of January 12, 1330, Isambert, Vol. IV, p. 377. 1« Isambert, Vol. IV, p. 404. 185 § 39/] THE MIDDLE AGES [Paut I, TiTLE II 1337, (leV)tors are f()r})i(l(Iou to j)iiy what they owe to Lombard usurers, and are eujoiiied to record the amount of their debts ; '^^ in 1350, the debts due to the Lombards are confiscated in favor of the king, the hitter to collect the capital, but to remit to the debtors the accumulated interest; ^'^'^ in 1363, is proclaimed a confiscation of the property of Italians, Lombards, ultramontanes, and other usurers; ^'^^ in 135(3, the right of the Lombards to prosecute their debtors is suspended; ''^ in 1303, debts due to the Lombards are annulled, except those already protected by final judgments ; ^^° in 1402, a commission is appointed to discover, try, and punish usurers. ^'^ With the progress of commerce, the authorities came to be less severe ; the right to lend on usury was more easily and more widely granted. But usury continued, nevertheless, to be considered as a crime. The Custumals mention the penalties for those who practiced it. According to the " Etablissements de I'Echiquier de Normandie ", whoever was convicted, after his death, on the oath of twelve neighbors, of having lent money with interest during the year and day before his death, suffered confiscation of his chat- tels.^''^ The confiscation of personal property was indeed the pen- alty generally incurred by the usurer, but as it was inflicted only after his death, it was in reality the heirs that were punished ; at times, however, the penalty was pronounced while the offender was still living. His property went, traditionally, to the feudal lord ; but the king laid claim to it, at an early period.^'^^ The secular authorities also claimed (as already noted) jurisdiction over trials for usury, even against clerics, in spite of the protestations of the Church ; their claim was based on the ground that it was a matter of contract. Nevertheless, the penalties inflicted upon usur- ers were spiritual as well as temporal, — excommunication, exclu- sion from the cemetery, and consequently refusal of confession and the sacraments. In certain regions, custom imposed on the usurer, while alive, instead of the confiscation of personal property, a fine "6 Isamhert, Vol. IV, p. 428. i" Ibid., Vol. IV, p. 573. »8 Ibid., Vol. IV, p. 679. "3 Ibid., Vol. IV, p. 841. 150 Ibid., Vol. V, p. 157. 1=' Ibid., Vol. VII, p. 46. 15^ "Etablissements, coutumes, assises et arrets de I'Eehiquier de Normandie", ed. Marnier, p. 34. 15' The definition of usury need not here be gone into ; it belongs rather under the history of contract; cf. Beaumanoir, chap. 68, nos. 2 et seq., Vol. II, p. 476; "Aneiennes coutumes d'Anjou et du Maine" A, no. 21, Vol. I, p. 47 ; B, no. 95, Vol. I, p. 120 ; C, no. 88, Vol. I, p. 304 F, nos. 572, 583 to 587, Vol. II, pp. 212, 216; K, no. 212, Vol. IV, p. 106 L, no. 445, Vol. IV, p. 327. 186 Chapter VI] FRANCE IN THE LATER MIDDLE AGES [§ 39j in favor of the bishop, and in addition })anishnicnt by his feiuhil lord. This we learn from Bouteiller's " Somme rural " where he points out the advantages of forbidding usury, for otherwise the people would be encouraged to idleness. ^-^ But this view , by the time of Charondas, his annotator, ceased to commend itself ; the latter points out that bankers are allowed to lend at interest, and that thus they render useful service and are even welcome in France. »Smcic^e was regarded (jierhaps under the influence of the Church) as a crime. Self-killing had been punished in Greece, and at times in Rome, when done to escape criminal i)r()ccedings, was treated as an ofTense.^'^' On the other hand, in early France, suicide was not included by the Church in its claim of jurisdiction, but was left to secular justice. ^'^ Proceedings were l)r()ught against the corpse of the suicide, whether his motive had been to escape crimi- nal justice or any other reason. Suicide was excused only when committed in a moment of mental alienation, or as a result of in- tense sorrow ; but in a doubtful case neither was presumed. On a verdict of guilty, the court pronounced confiscation of personal property in favor of the lord or of the king.^'^ The custom long was to order the corpse of the suicide to be hanged and then de- stroyed. But the later treatises speak only of the confiscation of personal property; whence may be supposed that the hanging of the corpse, a practice both odious and absurd, had fallen gratlually into desuetude.^^^ § 399. Punishments. — In the ^liddle Ages punishments are not inflicted to reform the ofl'ender, l)ut rather to secure the com- munity's vengeance, and, most of all, to intimidate evil-doers. The notion of satisfaction for injury, very general at the beginning of the Germanic folk-law period, had almost entirely disappeared. The leniency of the Frankish laws toward criminals — a leniency sometimes carried to excess — had ceased to play any ai)i)rcciable 15^ Bouteiller, "Somme rural", book II, tit. 11, oil. 1021. p. 1295. '^* See for example, Titus Livi/, XVI, 1. '^*' "Aneiens coutumiers dv IMcardie", ed. Marnier, p. ()0. '^^ See on these various points Bcnumnnoir, chap. (10, nos. 0, 10, 12, 13, Vol. II, pp. 487 el seq.; "Ilegistre do Saint-Mart iii-dos-riiamps", pp. 113, 193, 219; Bouteiller, "Sommo rural", book I. tit. :i9, p. 4tt8. Cf. Bregenult, "Proces oontro los oadavros dans I'ancit'n droit", in the "Nouvolle Revue historiquo do droit fran^ais et elrangor", year 1S79, Vol. Ill, p. 619. »^«"Registre eriminel de Saint-Martin-des-Champs", pp. 112 and 218; "Aneionnes ooutumos d'Anjou et du Maine", B, no. 97. Vol. 1, p. 121; I, no. 94, Vol. Ill, p. 256; Bouteiller, "Somme rural", book II, tit. 40, ed. 1621, p. 1490. 187 § 39{/] THE MIDDLE AGES [Part I, Title II part ; punishments had l)ec()me severe, at times even cruel. Cer- tain jurists, indeed, while conceding that the punishment must be proportionate to the offense, deprecate an extreme severity; in- fluenced by Roman law, they advise the judge to take into con- sideration the circumstances of the crime.^ The judge did, indeed, enjoy apparently a very extensive power in the de- termination of the penalty. Xo maximum nor minimum ham- pered him. But in reality he had not a large range of dis- cretion. The penalty of imprisomnent was almost unknown ; for the most serious crimes almost always the death penalty was prescribed ; he had only a choice between the different kinds of painful punishments. Fines alone were often left entirely to his discretion. Whenever a royal ordinance, the regional Custom, or even a seigniorial regulation fixed a punishment for an offense, the judge was naturally bound to apply it,- without discretionary power.^ All the jurisdictions could, in theory of law, make use of the punishments, even the seigniorial tribunals and the town courts.^ The Custumals often carefully enumerated these punishments.-^ Undoubtedly the most common punishment was death. It was used for almost all serious crimes, with remarkable prodigality. The Custumals do not complain of this ; and if they sometimes re- fer to it, they rather approve of cruelties intended to intimidate the people. (It is notable however, that the " Livre de jostice et de plet ", evidently influenced by the Church, in a passage insisting that, before putting a man to death, every effort should be made to discover the truth, criticizes the death penalty as open to the charge of unmaking what God had made.)^ This punishment was * See, for example, "Livre de jostice et de plet", pp. 277 et seq.; Bou- teiller, "Somme rural", book I, Vol. 29, ed. 1621, p. 305. 2 It was conceded that the lord of the manor could fix punishments : "Anciennes coutumes d'Anjou et du Maine", I, no. 9, Vol. Ill, p. 390. * "Li\Te des droiz et des eommandemens", no. 787. ^ "Registre criminel de Saint-Martin-des-Champs", p. 93. The aldermen of Saint-Omer could pronounce the penalties of death, mutila- tion, banishment, pilgrimage, burning of the hand, or the "amende honorable", not to speak of the less severe punishments, such as fines; see Giry, "Histoire de la ville de Saint-Omer", pp. 218 to 225. * See, for example, "Li\Te de jostice et de plet", pp. 277 et seq.: Beau- manoir, chap. 30, Vol. I, pp. 410 et seq.: "Anciennes coutumes d'Anjou et du Maine", F, nos. 363 et seq.. Vol. II, p. 144; Bouteiller, "Somme rural", book I, Vol. 29, ed. 1621, p. 304 ; book II, Vol. 40, p. 1464. ^ "Livre de jostice et de plet", p. 113 : "And if any one offends before the people and absconds and through malice does not wish to come for- ward, he shall have no longer term than the time of his absence ; but he shall have the term of the punishment, namely, of three assizes ; for 188 Chapter VI] FRANCE IN THE LATER MIDDLE AGES [§ 39^ imposed for murder, homicide, poisoning, rape, abduction, arson, and for the most serious thefts,^ serious either because of the im- portance of the objects stolen or because committed by several persons.^ The methods of putting to death varied ; in general (probably under the influence of Germanic traditions), they hanged the men and burned or buried alive the women. But this distinction was customary only, not mandatory ; there are in- stances of men being buried alive for the crime of theft,^ and of men being burned for rape or bestiality.^" Counterfeiters were thrown into boiling water." In certain specially heinous cases, the death penalty was preceded by an ignominious torture or even a mutilation; thus, often for abduction, and for all the worst crimes, notably that of " lese majeste ", the offender was dragged around the locality before being hanged.^- At times also, for heinous crimes, the offender, instead of being hanged, was decapitated or quartered. ^^ The punishment of death by l)reak- ing on the wheel appeared very late in P>ance ; we do not find it in the early Custumals ; Bouteiller tells us only that, in his time, in the region of Hainaut, the abducter, instead of being hanged, was burned alive. ^^ Up to the end of the 1300 s, it was the cruel custom to refuse to the condemned the consolation of the last confession ; but an ordinance of Charles VI of February 12, 139C, reformed this.i^ Next to the penalty of death came that of mutilation. It \'aried infinitely in its application, but was always inconceivably cruel. This punishment had been borrowed, for the most part, from old Germanic usages. In theft, the system of Capitulary laws had iii- we must bear much and wait before putting a man to death ; for it is a serious thing to unmake what God has made and to do what he does not wish done." ^"Etablissements de Saint Louis", book I, chap. 35; "Livre de jostice et de plet", p. 280; Beaumanoir, Chap. 30, nos. 2 to 13, Vol. I, pp. 410 et seq.; "Aneiennes eoutumes d'Anjou et du Maine", E, nos. 77, 80 to 82, 85 to 87, 91, 92, 95, 98, 99, 104, 105, Vol. I, pp. 430 cl scq. : F, nos. 1363 to 1388, Vol. II, pp. 502 et seq.: "Livre des droiz et des eomniande- mens", nos. 347 et seq.; " Registre eriminel de Saint-Martin-di's-Cliamps", pp. xcii et seq. Cf. Wilda, "Das Strafreelit der (u'rniaiuMi ", p. 498. Beaumanoir cites the example of a woman who was burned for having murdered her husband, chap. 69, no. 16, Vol. II, p. 491. ^ "Registre criminel de Saint-Martin-des-Champs", pp. xevii, xcviii. cxi. " Ibid., pp. xeiv and exi. 1" Ibid., pp. xciv and cxi. " Ibid., p. 226. '- Ibid.. pp. 88 and 121. " "Aneiennes eoutumes d'Anjou vl du Maine", F, no. 13(53 ct seq.. Vol. II, pp. 502 et SC7., giving an enumeration of all the principal cases incurring the death penalty and its various modes of application. " Bouteiller, "Somme rural", book I, Vol. 39, ed. 1021, p. 477. 1* Isambert, Vol. VI, p. 775. 189 §39^] THE MIDDLE AGES [Part I, Title II flicted for a first offense mutilation, the death penalty only in case of a third offense.^^ Sodomy also, for the two first oftenses, was punished by mutilation. ^^ By the law of the Custumals, one w-ho laid liands on his lord had his hand cut off ; ^^ one who used false meas- ures lost his thumb. ^^ The punishment of whipping was rarely applied. Most fre- quently reserved for children, it was inflicted occasionally upon adults, for example, for unlawful blows, or for false witness in minor matters.^" Among the other severe punishments occur the pillory and the hrand. The pillory, or " carcan," consisted in exposing a man to the public in a more or less disgraceful position. This punish- ment was especially used for blasphemers, in certain cases for for- gers. Beaumanoir tells us that the false witness is punished by a long imprisonment, by the pillory, and by a discretionary fine.^^ An edict of King Philip VI of 1347, required that the blasphemer be put in the pillory, and permitted any one to throw mud or other filth in his face.^^ For sundry crimes the offender was branded with hot iron on the cheek.^^ Banishment and imprisonment were much less severe. Thus, banishment was applied in the least serious cases, such as petty theft, begging, and default in a criminal case. The banished party had only to leave the territory of the jurisdiction pronouncing the punishment. Nevertheless, it involved (like the preceding punish- ments) confiscation of the property to the lord. One who wilfully 1« Capit. of 779, Pertz, "Leges", I, 38. Cf. "Etablissements de Saint Louis", book I, chap. 32; "Cartulaire de Kotre-Dame de Paris", Vol. Ill, p. 274; "Registre criminel de Saint-IMartin-des-Champs", pp. e, ci, 221; "Couturae de Touraine-Anjou", no. 22; "Anciennes coutumes d'Anjou et du Maine", E, no. 1379, Vol. II, p. 505. 1^ See, for example, "Livre de jostiee et de plet", p. 279. la "Anciennes coutumes d'Anjou et du Maine", F, no. 1372, Vol. II, p. 514. 19 "Anciennes coutumes d'Anjou et du Maine", F, nos. 1392 and 1393, Vol. II, p. 507. 2" "Registre criminel de Saint-Martin-des-Champs", p. ciii ; "An- ciennes coutumes d'Anjou et du Maine", F, no. 1386, Vol. II, p. 506. In serious cases false witnesses were hanged. 21 Beaumanoir, chap. 30, nos. 45 et seq.. Vol. I, p. 424. 22 We must not confuse with the pillory the forked gibbets, that is, posts or columns supporting blocks of wood, to which were bound the criminals who had just been hanged or strangled. These forked gibbets were a sign of "high justice", as a privilege of the lords or of the munic- ipalities. See "Registre criminel de Saint-Martin-des-Champs", pp. cii, cxii et seq., where will be found details on the gibbet of Paris. Cf. Lauricr, "Foiirches et pilori"; Flammermont, "Histotre des institutions municipales de Senlis", p. 25. 23 Bouteiller, "Somme rural", book II, tit. 40, ed. 1621, p. 1494. 190 Chapter VI] FRANCE IN THE LATER MIDDLE AGES [§ 39 and 424. 3" "Livre de jostice et de plet", p. 119 : "Thus the pri.soner i.s helped : the name prison applied to the prison of a great lord, the i)risons for thieves, the prison for enemies." For the privih-gcs enjoyed by cirtain prisoners, especially as to prescription. See "Anciennes coutumes d'An- jou et du Maine", F, nos. 865, 1081, 1142, 1143, Vol. 11, pp. 311, 409. 191 § 393] THE MIDDLE AGES [Part I, TiTLE II their death. But the royal power did not concern itself with pris- ons until a late period, and then at first only with certain ones, notably those of Paris. — The information that has come down to us justifies the assertion that prisons, even in the Middle Ages, were already places of debauchery and cruelty, whence the ac- cused or the condemned came out more perverted than when they had entered.^^ The pecuniary penalties of the Middle Ages consisted chiefly in total or partial confiscation and in various amounts of fines. Con- fiscation was sometimes a principal, sometimes a secondary penalty. In some cases it extended only to certain kinds of property, in others to the party's whole estate. A great diversity of practice appears in the regional Customs. But they commonly limited confisca- tion to personal property ; this was the general system.^- But this might be accompanied by various sorts of harm inflicted on landed property ; houses were burned or demolished, meadows and fields upturned, vineyards uprooted, etc. ; the land afterwards to be re- stored to the offender's family. — This confiscation of personal property, with devastation of landed property, was the regular accompaniment of a sentence to a capital punishment ; for this involved the " putting outside the law", or what w^e would call to- day civil death.^^ It must be remembered, however, that confisca- tion of fiefs was subject to special rules of feudal law. A general confiscation of property, personal and real, is not prescribed in the regional Customs ; it is found only for heresy or for " lese majeste " in Anjou and Maine.^^ In the earldom of Flanders it was limited äi See, on the prisons of Saint-Martin-des-Champs, "Registre criminel de Saint-Martin-des-Champs", p. cxix. For the ordinances regulating prisons, see ordinance of December 24, 1398, Isambert, Vol. VI, p. 826 ; April 1410, Isambert, Vol. VII, p. 230; regulation of May 1425, Isambert, Vol. VIII, p. 698 ; ordinance on the police of the prisons of Paris, October 1485, Isambert, Vol. XI, p. 147. Cf. Letters of 'King John of 1351, de- claring that the abbots and superiors shall visit and console t^\ice a month in their prison the monks condemned to oblivion : Isambert, Vol. IV, p, 673. On the Chatelet prison, see Fagniez, "Fragment d'un repertoire de jurisprudence parisienne au XVe sieele." ä- Beaumanoir devoted an entire chapter to this distinction ; chap. 23, Vol. I, p. 332. 3^ De Fontaines, "Conseil", pp. 292 and 483; "Etablissements, cou- tumes, assises et arrets de Normandie", ed. Marnier, p. 77; "Anciennes coutumes d'Anjou et du Maine", F, nos. 1307, 1364 et seq., 1433 et seq.. Vol. II, pp. 484, 502, 515 ; L, nos. 116 et seq., Vol. IV, p. 196. The alder- men of certain cities had the right to pronounce this penalty of devasta- tion and house-burning on those who were "put outside the law"; see Giry, "Histoire de la ville et des institutions de Saint-Omer", pp. 218 to 225. ^* "Anciennes coutumes d'Anjou et du Maine", F, no. 1433, Vol. II, p. 515. 192 Chapter VI] FRANCE IN THE LATER MIDDLE AGES [§ 39^ to five crimes : ^•'' treason to the liege lord, flight in a l)attle against unbeHevers, participation in an insurrection, lieresy, and suicide ;'^^ and even in these cases, enough must be reserved to support the offender's wife and children and pay his debts ; the remainder went to the lord/^^ Bouteiller tells us that in the territory of ]\Ior- tagne, on the Escaut, confiscation had never been sanctioned, even for personal property, in the case of the death penalty ; for then, indeed (he says), the punishment would fall on the heirs rather than on the criminal himself. In certain cases, very rare however, confiscation of personalty or demolition of the house was inflicted although there had been no capital crime committed. Thus, he who died while practicing usury incurred confiscation of personalty ; and Beaumanoir informs us that if a person shelters an outlaw, he is punished by a discretionary fine and his house demolished.^^ — Finally, in many cases, there might be a mere partial confiscation, — usually of the subject of the offense, as, the merchandise sought to be smuggled without paying duty.'^^ On the other hand, the severity of the letter of the mediexal law was often lessened in practice, and even by royal ordinances. The king, when he was the beneficiary of a general confiscation, often gave back a part of the estate to the deceased's relatives."*" The practice of laying waste the fields and destroying or burning the houses of those " put outside the law " fell into desuetude in more than one locality. Letters of Charles V, of June, 1366, abolished in Saint-Amand-en-Puele the custom of burning the houses of capital offenders, by permitting the family to purchase immunity."*^ Fines became less harsh, without the need of enactments to that end. For fixing the fines, the amounts used in earlier times had been preserved of record and were used as precedents ; so that, as money diminished notably in value, this alone produced an appre- ciable diminution of the penalty. For example, in the Frankish 35 Bouteiller, "Somme ruralc", book II, Vol. 15, ed. 1621, p. 783. '« Beaumanoir speaks also of {^fciicral confiscation in case of suicide, chap. 69, no. 9, Vol. II, p. 4S7. " The early regional Customs of Anjou and of Maine prescribe, also, that he who profits by the confiscation shall pay the debts; that was evi- dently a principle of common law; see "Anciennes coutumes d'Anjou et du Maine", F, no. 1166, Vol. II, p. 442. 3* Beaumanoir, chap. 30, no. 36, Vol. I, p. 422. '" "Livre des droiz et des commandemens", no. 259. ^0 See, for example, the measures taken in favor of certain relatives of Pierre de la Broce, in Langlois, "Le re^jne de Philippe III", p. 32, note 3. " Immbert, Vol. V, 253. 193 § ;i<)f/] THE MIDDLE AGES [Part I, Title II epoch a j)eualty of sixty sous had been the typical royal fine in- curred for violating the royal ban ; there was also a minimum fine, also typical, but varying according to the regional or folk- law under wliich the ofi'ender lived."^^ Now we find also in the feudal period these two common fines, the one heavy, the other light ; the first is still called " the fine of sixty sous," the second, which varies according to localities, is very often of five sous, and is called in the texts simply " fine " (" amende ") or " gage de la loi," that is, security required by local custom. Numerous texts of the Custumals (too tedious to cite) speak of this " fine of sixty sous " ; it continued to be a very frequent one, even in the latest Custumals of the Middle Ages, for example, in the " Somme rural " of Bouteiller, and it persisted to the end of the Old Regime in many regions.'*"' Independent of these two general fines (the one of sixty sous, or heavy fine, the other of five, six, or seven sous, according to the regional Customs and called " amende de loi "), there were other pecuniary penalties more or less severe, but varying greatly accord- ing to the regional Customs. In many cases the amount w^as purely in discretion ; the guilty person was deemed to be " in miseri- cordiam regis ", and the fine could be more or less than sixty sous according to the pleasure of the judge. For instance, according to Beaumanoir, the amount was discretionary for the offender who used violence in court, or who escaped after arrest for debt, or who sheltered in his house a convict " put outside the law," or who bore false witness, etc.'^ According to the early regional Customs of Anjou and of INIaine, the discretionary fine was applicable to the plaintiff in a personal property case who relinquished his suit, ^- See, for example, Boretius, "Beiträge zur Capitularienkritik", pp. 159 and 167; c/. "Leges", I, 227. "^ See, for exainple, Beaumanoir, chap. 30, nos. 78, 88 el seq.. Vol. I, pp. 432 and 444 ; according to the first of these texts, he who injures the grain is liable only to a fine of five sous. See also in regard to fines, "Livre de jostice et de plet", pp. 278 et seq.; on the fine of sixty sous, or heavy fine, "Anciennes coutumes d'Anjou et du Maine", F, nos. 1398, 1401 et seq., 1412 et seq., 1424, 1429, Vol. II, pp. .508, 509, 511, 513, 514. The early regional Customs of Anjou and of Maine speak also of the "amende de loi", which in these regional Customs was of seven sous and six deniers ; it was imposed especially upon those who did not pay their quit-rents or other money dues, and in certain lawsuits upon the losing party, etc.; ibid., B, no. 171, Vol. I, p. 172; C, no. 160. Vol. I. p. 352; E, nos. 108 et seq.. Vol. I, p. 442; F, nos. 1399, 1407, 1416, 1426 et seq., 1431, 1432, 1487, 1498, Vol. II, p. .509 et seq.; I, nos. 130, 131, 133, 140, 141, Vol. Ill, p. 283 ; L, nos. 318 et seq.. Vol. IV, p. 273. See also "Li\Te des droiz et des commandements", in the alphabetical table, 5th fine. ** Beaumanoir, chap. 30, nos. 20, 35, 36, 45, Vol. I, pp. 417, 418, 422. 194 Chapter VI] FRANCE IN THE LATER MIDDLE AGES [§ Z9g the merchant who sold imitation cloth, the party who wronjffully resisted the enforcement of a royal mandate, the landholder who executed a fraudulent deed to evade the relatives' right of re-pur- chase ; and in other instances.^'' Sometimes the regional Custom itself fixed the amount, even in excess of sixty sous, keeping ordi- narily to the tradition of the earlier law ; thus the regional Cus- tom of Anjou speaks in two cases of a fine of a hundred sous, called " relief d'homme ",^^ which was certainly borrowed from the Capitularies legislation or even from the earlier folk-laws (" Leges ").^^ — In other cases, the regional Custom fixed amounts between the fine of sixty sous and the " amende de loi." Ac- cording to Beaumanoir, for insult the fine varies according to the station of the persons and the gravity of the case."*^ The " Etab- lissements de Saint Louis " speak of a fine of fifteen sous for assault. The same rule obtains in Vermandois, provided the victim is in no danger of death or maiming;'^ Other texts mention fines of ten and twenty sous for blows, violence, and mere insults. This was the most common punishment for lesser crimes ; the rate alone varied according to the different regional Customs.'''^ — Whenever a fine did not seem sufficient, the judge could add imprisonment.'' As already noted, the multiplicity of fines for errors in legal prci- " See "Anciennes eoutumes d'Anjou et du Maine", E, nos. 78, 100, 115, 257, Vol. I, pp. 431, 442, 445, 543; F, nos. 6(31, 684, 1396. 1307, Vol. II, pp. 242, 249, 508; I, nos. 97, 129, 137, 289, Vol. Ill, pp. 259, 283, 288, 413 ; L, no. 325, Vol. IV, p. 280. ■•« A fine paid by the vassal in order to redeem liis fief. (Note of the Tr.) " "Etablissements de Saint Louis". ])ook 1. chapters 108 and 125. Cf. Viollet, "Etablissements de Saint Louis", Vol. I. p. 246. _Th<" first ease of this fine of a hundred sous and one denier is where one's animal has killed a person, the owiut Ijcing ignorant of its vice ; for if he had known its vice, he would have been hanged: "Etablissements de Saint Louis", book I, p. 125, Vol. 11, p. 236. The second case is that of a per.son Avho, accused of a capital crime, has furnished bail and then lied; the surety then in his place incurs the fine of a hundred .sous and one denier. "Etablissements de Saint Louis", book I, chap. 108, Vol. II, p. 100. According to the "Li\Te des droiz et des commanch'mens", no. 344. tlic fine of a hundred sous and one denier is also ai)plical)ic to an abandonment of a charge of crime. But it cannot be inflicted uj)on a l)oy less tiian fourteen years old for inxoluntary homicide. See ibid., no. 346. ••* Beaumanoir, chap. 30, nos. 21 c( scq. ^» "Etablissements de Saint Louis", book II, chap. 24. Cf. lionlicr, "Philippe de Remi, sire de Beaumanoir", p. 389 ; Vinllct, " Etablissements de Saint Louis", Vol. I, p. 246; Taiton, "Le registre crimiuel de Saint- Martin-des-Champs", p. 107. ^0 In the following te.xts it was of ten, twenty, or thirty sous in .\njou and Maine: "Anciennes eoutumes d'Anjou et du Maine". K, nos. KM). 101, 106, Vol. T, p. 4.38; F. nos. 14(K), 1411. 1415. 1427. 1430. 1131. Vol. II, pp. 509, 511, 514 ; I, nos. 120. 126, Vol. III. pp. 277, 2S(). *' Beaumanoir, chap. 30, no. 19, \'ol. 1, p. 416. 195 § 39^] THE MIDDLE AGES [Part I, TiTLE II ceedings, — against the lawyers if they had faultily pleaded, and against the judges if they had given an erroneous judgment, at times very heavy, often led to the ruin of individuals and even of communities.^^ Whenever the king's court desired to protect the loser from a similar misfortune, it inserted in the decision a "retentum", which exempted from a portion of the fine; e.g., in 1310, a judgment sentenced a party to pay a fine of two thousand francs to the king, but with a " retentum " that he need pay only one thousand. ^^ The king had always the power of making a total or partial remission of any punishment whatever, or of substituting one less severe ; he had even the right of removing the criminality and of thus preventing or stopping prosecution. In the former case, he granted " Letters of Remission " ; in the second, " Letters of Aboli- tion." The former represented his power of pardon, the latter his power of amnesty. There are numerous examples of these. Am- nesty was granted at times to one or more individuals, at other times to an entire city; thus the city of Paris obtained " letters of abolition " from the Regent during the captivity of King John, dated August 10, 1358.^^ During the first part of the period here treated the king apparently reserved as an essentially personal privilege the right of granting Letters of Abolition of of Remission ; it did not belong to his officers or magistrates, unless he delegated it to them in due form. Thus Letters of Charles VI, of September, 1398, allowed the provost of Paris to rem-it fines of ten pounds and over, in civil cases, to persons imprisoned for non-payment,''^ Likewise, a mandate of Charles VI, of March 13, 1401, conferred upon the Chancellor of France the right to grant, in council, all the Letters of Abolition and of Remission. ^^ The same privilege was possessed by the great vassals of the crown, and was also con- ^2 For the ruin of certain communities as a result of fines inflicted upon them by the court of Parliament, see Flammermont, "Histoire des in- stitutions munieipales de Senlis", pp. 23, 36, and 51. 63 Isatnbert, Vol. Ill, p. 11. 6^ See, for example, Letters of King John of December 9, 1357, Isambert, Vol. IV, p. 862 ; Letters of the Regent, August 10, 1358, Isambert, Vol. V, p. 35 ; Letters of King John, May 22, 1369, Isambert, Vol. V, p. 94 ; Letters of Charles V, September 23, 1367, Isambert, Vol. V, p. 292. See also Letters of Discharge of Charles V of July 1373 in favor of the lord of Amboise, who had caused an officer of the king, while exercising his duties, to be carried off by force, kept in prison, and made to pay, granted on condition that the guilty man pay a fine to the king, remain a week in prison, and give satisfaction to the plaintiff. Isambert, Vol. V, p. 392. Amnesty could thus be granted on certain conditions. See also Marnier^ "Anciens eoutumiers de Picardie", p. 54. " Isambert, Vol. VI, p. 826. ^ Ibid., Vol. VIII, p. 14. 196 Chapter VI] FRANCE IN THE LATER MIDDLE AGES [§ 39g ceded to counts and barons ; but it was not conceded to the lords having " high justice " who were not also lords of manors, unless they had acquired the right, either by grant or by usage. •^' More than once such Letters became the subject of mercenary traffic by the possessors of this privilege or those through whose agency they were obtained. " "Aneiennes coutumes d'Anjou et du Maine", E, nos. 11 and 13, Vol. I, p. 391 ; I, nos. 15 and 17, Vol. Ill, p. 181 ; L, nos. 308 and 310. Vol. IV, p. 270. 197 TITLE III. THE RENASCENCE, THE REFORMA- TION, AND THE 1700 s CHAPTER VII. CHAPTER VIII. CHAPTER IX. CHAPTER X. CHAPTER XI. GERMANY'S RECEPTION OF THE ROMAN LAW IX THE EARLY 1500 s. GERMANY IN THE LATE 1500 s AND THE 1600 s. GERMANY IN THE 1700 s. FRANCE FROM THE 1500 s TO THE 1700 s. SCANDINAVIA, SWITZERLAND, AND THE NETHERLANDS, FROM .ME- DIEVAL TIMES TO THE 1700 s. 199 Chapter VII GERIMANY'S RECEPTION OF THE ROMAN EARLY 1500 si LAW L\ THE § 40. Reasons for Reception of the Roman Law. Permanent Features of the German Law. The Italian Jurists. § 4L Early Law Books Introduc- ing the Italian Legal Learning into Germany. The " Bambergensis Hals- geriehtsordnung." Rela- tion of the Bambergensis to the Italian Legal Doc- trines. § 42. The Punishments of the Bambergensis. Relation of the Bambergensis to the Local Law. Intrinsic Merit of the Bambergen- sis. Recognition of the Bambergensis Outside of Bamberg. § 43. The "(\irolina." Local Op- position. The "Saving Clause." § 44. Comparison of the Carolina and the Bambergensis. Careless Manner of Pub- lication. Varied Applica- tion of the Carolina. (}en- eral Effect of the Carolina. 1 For the matter contained in Chapters VII-IX, the following wTiters may be consulted : Malblank, "Geschichte der peinlichen Gerichtsordnung Kaiser Karl V." (1783) ; Henke, "Grundriss einer (Jescliichte des deiitsclien peinlichen Rechts" (2 vols. 1809), Vol. II; Zupjl, "Das alte Bamberger Recht als Quelle der Carolina" (1839); Herrmann, "Freiherr Johann v. Schwarzenberg. Ein Beitrag zur Geschichte des Criminalrechts" (1841) ; Von Wächter, "Gemeines Recht Deutschlands, inbe.sondere gemeines deutsches Strafrecht" (1844); Warnkönig und L. Stein, "Französische Staats- und Rechtsgeschichte", III, pp. (ill et seq.; Scliüffner, "Ge- schichte der Rechtsverfassung Frankreichs", III, pp. 427 et .seq., pp. (iül et seq., IV, pp. 322 et seq.; Kö.Htlin, "Geschichte des deutschen Strafrechts im Uniriss, lierausgegelien von Gessler" (1859), pp. 200 el seq.; (leib, "Lehrliuch des deutschen Strafrechts", I, pp. 240 et seq.; \'nn Stintzing, "Geschichte der populären Literatur des nimisch-kanonischen Rechts in Deutschland" (1867); Berncr, "Die Strafgesetzgi-bung in Deutscldand vom Jahre 1751 bis zur Gegenwart" (1807); Alhird, "Ilistoire du droit criminel au XVIeme siecle" (Paris, Leipzig, 1808); \'on Holtzenitarß, "Handbuch des deutsclien Strafrechts", I, pp. (17-143; (History of (he criminal law of countries otlier than Gernumy, \'<>n Holtzemlnrjf, |>p. 144 - 238); Güterbock, "Die Entstehungsgeschichte der Carolina auf Grund archivalischer Forschungen" (187()) ; Von Wächter, "Beilagen zu Vor- lesungen über das deutsche Strafrecht" (1877), pp. 1(K) et seq.; lininnen- meisl'er, "Die Quellen der Bambergensis, ein Beitrag zur Geschichte des deutschen Strafrechts" (1879) ; Von Stintzing, "Geschichte der deutschen Rechtswissenschaft" (1, 1880). Collections of the literature dealing with the matter contained in these chapters may be found especially in the follo\\'ing \\Titcrs : G. W. Böhmer, 201 § 40] THE RENASCENCE AND THE REFORMATION [Paut I, TiTLE III § 40. Reasons for Reception of the Roman Law. — Reception of the Roman Law. — The reception of the liomaii law, — or to speak more correctly, the combination of Roman and German legal prin- ciples, which, towards the end of the Middle Ages, came about in the other domains of the law — could not long be excluded from the province of criminal law. Here the change came about in a much more correct manner. It lacked those inconsistencies and incongruities which we so often find in the other branches of the law, — the ill effects of which are in part so numerous in our legal institutions, remaining even until the most modern times. In great part, criminal law is nothing other than an application of the generally prevalent philosophic truths and fundamental rules of morality. Assuming the existence of the methods of procedure requisite for the ascertainment of the facts involved in the concrete case, that treasure of wisdom acquired by one people may to a certain extent be transferred to the law of another, without rendering it incongruous. This is so, just as to-day the so-called general part of the criminal codes of the most highly civilized nations is (with the exception of the sys- tem of punishment) often transferred to nations that are less civilized. And where their civilization is similar in degree, dif- ferent States feel the need of providing punishment for the same acts. To a less extent than the private law does the criminal law contain rules that are arbitrary or based upon expediency or merely relics of the past. Its purpose is to protect the general system of law, — that system from which it may at first glance appear very different. Yet the wall which is designed to protect this system may contain essentially the same construction, and under some circumstances must contain the same construction. But there was more in the reception of the Roman law by the criminal law than the mere absence of injury to either. The "Handbuch der Literatur des Criminalrechts " (1816); Von Wächfer^ "Lehi'bueh der römisch-deutschen Strafrechts" (2 vols. 1825, 1826); Kappler, "Handbuch der Literatur des Criminalrechts" (1838); Geib, "Lehrbuch", I ; Nypels, "Le droit penal frangais progressif et compare" (Bruxelles, 1864); Binding, "Grundriss zu Vorlesungen über gemeines deutsches Strafrechts" (2d ed. 1877). [Later wTiters are: Pfeilschifter. "Das Bamberger Landrecht, systematisch dargestellt" (Erlangen, 1898) ; Kohler and Scheel, "Die Bambergische Halsgerichtsordnung" (Halle, 1902); Zöpfl, "Die peinliche Gerichtsordnung Kaiser Karl V." (Berlin, 1893); Oppermann, "Die Schuldlehre der Carolina" (Leipzig, 1904); Christiani, "Die Treuhand der frankischen Zeit" (Breslau, 1912); Kaii- toromcz, " Gobler's Karolinenkommentar und seine Nachfolger" (1904); Kohler and Scheel, " Die Karohna und ihre Vorgängerinnen " (3 vols. 1900- 1904). — Von Thot.] 202 Chapter VII] GERMANY'S RECEPTION OF THE ROMAN LAW [§ 40 contact of the two systems led to a widening of principles, such as the Roman law presumably would never have attained and such as would have taken the Germanic law a longer j)eriod to acquire, if left to its original course of development.^ The Germanic law primarily looked only to the external act vio- lating a right. The element of inward guilt, to be sure, was not en- tirely neglected ; but the crude and clumsy law of proof was obliged to stop at the guilty motive as manifested in external acts (which to us now seem more and more inadeciuate for the ascertainment of the real inner guilt). We may here call attention to the futile laborings of the law-books of the later ]\Iiddle Ages, especially e.g., in respect to negligence and self-defense. As we have seen, theol- ogy, morality, the Canon and the Mosaic Law often proved them- selves false guides. But all that was lacking in these respects was to be found in the short and clear maxims of the Roman Law, and in its certainty in apjilication to individual cases. The later Roman Law could, in many respects, be regarded as a system more finished in its development than the native law. Resort was had to the former where the latter no longer seemed suitably adajjted to the particular matter involved. This in the later ^Middle Ages was often the case. jVIoreover, in the period whereof we speak, the old sturdy Germanic freedom could no longer prevail. The existence of the cities rendered necessary the maintenance of police and a system of militia, — a new and different condition of affairs. An altered status obtained for the i)rinces and magistrates. A greater protection was required by trade and commerce. In spite of many far-reaching differences, life, as a whole, especially in the cities, was more similar to the life of the early Roman Empire than to that once lived by the old Germans among their secluded villages and farms. For that protection now necessary in matters of criminal law, the old Roman conception of offenses (" delicta ") was better suited than the maxims of the early Ger- man law. Instead of choosing the prolix and laborious metliod of a special statute, it was simpler to treat the Roman Law as a more complete exposition of the local law. This was furthered by the fact that it was considered nothing unusual to l)orrow and transplant law and a system of justice from one city to another. 1 Proof of this is furnished by the EnKlish criminal law, which was more, if not entirely, removed from the influence of the Roman Law. 203 § 40] THE RENASCENCE AND THE REFORMATION [Part I, TiTLE III Permanent Features of the Germanic Law. — However, the Roman Law had its defects. It was burdened with many irra- tional and repellent deformities. Many of its features bore the character of legislation enacted to serve temporary expediency, and suffered from the fundamental scientific defect that, through paying too little attention to the effect of criminal act, its ascer- tainment of the underlying intention was superficial. Moreover, it did not make sufficient distinctions in the definition of ofi'enses ; in general, it was subject to no restrictions in its treatment of the individual. It was in these respects that the Germanic con- ception of law had to be retained. There was no need to transfer the deformities, the inconsistent and irrational features, which were bound up with transitory historical conditions. There was no need to give up the Germanic definitions of offenses, which as a whole rested upon firmer foundations. What was requisite was to use as a foundation the Germanic conception of freedom, and to base the subjection of the individual to the criminal law upon his own free wdll. This was feasible at least to the extent that every " ex post facto " application of a new statute to the detri- ment of an individual was to be prohibited, and punishment was to be permissible only under a statute of which the individual has, or must be presumed to have, knowledge ; and also to the extent that, in the wording of statutes upon which the individual is to rely in his actions, there should be found a guarantee to the individual of his liberties, and not, as in the Roman law, a means more surely to get at the culprit. The Italian Jurists.^ — This task had already been undertaken on sound lines, and for the most part completed (although not entirely without mistakes) by the Italian jurists. In Italy, earlier than in France or Germany, the Germanic law^ had come into con- tact with the Roman. In that country there was more of refine- ment and culture. Apart from the frequently awkward method of expression and the subtle and often repellent technicalities, one can here observe in the criminal law, as compared with that of the Romans, a distinct increase of breadth.^ A beginning was made towards tracing back to their ultimate and possibly uni- versal principles the case-decisions of the Roman authorities. 2 [A full account of the history of criminal law in Italy is given in Vol. VIII of the present Series, Calisse's "History of Italian Law." — Ed.] ^ Cf. especially the discussion by Seeger in "Der Geriehtsaal" (1872), pp. 204 et seq. 204 Chapter VII] GERMANY'S RECEPTION OF THE ROMAN LAW [§ 40 One need recall only the manner in which the decisions under the title of the Digest, " Ad legem Aquiliam ", were expounded, in conjunction with the title " De lege Cornelia de sicariis " and the statutory provisions for manslaughter and wounding ; the manner in which a general theory was advanced for the doctrines of the applicability of new statutes,^ of self-defense, of attempt, of the punishment of various participants in the same crime, and of joint-wrongdoers. With a sure touch, the Italian jurists dis- cerned those points wherein the Roman law, although its literal acceptance would have been possible, yet ran contrary to the general sense of justice. ]\Iany kinds of attempts at crime, and even acts which according to our modern conception are merely acts done in preparation for crime, were by the Roman law pun- ished with the same penalties as the consummated crime. This is explained by the fact that the " Lex Cornelia " was designed to serve purposes of temporary expediency. These doctrines were rejected by the Italians, on the ground of " consuetude generalis," From this same " consuetudo generalis " were borrowed the doctrines about theft and brigandage. Upon closer inquiry one finds the Italian statute law of the medieval cities to have been the subject of so much study that one cannot with truth speak of a lack of respect for the Germanic law in the Italian lawbooks. And since, notoriously, these learned jurists exercised a controlling influence over the judicial practice, any other result is scarcely conceivable. Neither the self-con- scious citizenry of the Italian cities, nor the autocratic power of the Italian princes, would have tolerated an open disregard for the statutes. To be sure, in the ^Middle Ages, the theory of the omnipotence of the State and statute law fell far short of its mod- ern acceptance. That a doctrine which, necessarily, was derived from the " naturalis ratio " could not be rendered nugatory by a command of the legislative power was a general rule, and one not limited in its application to merely the province of criminal law. Consequently we need not be surprised to find essays ^ on the validity of statutes whose harshness, especially, in their eliVct upon * Here the theories of the jurists are founded upon a reniarkahlo dis- cussion by Richardus IVIalumbra at the be^Muninj; of the l.')(J()s. Ho advances the now generally accepted theory of the retroactive elTect of later and milder penal statutes. Cf. Alhrricit.s ilr Rosntc, •Toninient. super Codicem ad le^. 7 C. de legs-", and in regard to this. Sccgcr, "Ab- handlungen aus di-m Strafrecht" (18(12). II. 1, pp. ')2 ct scq. 5 Cf. e.g. Hippolytus de Marsiliis (died 1529), "Ad leg. Corn, de sicarus L. Infamia", n. 16, n. 13. 205 § 40] THE RENASCENCE AND THE REFORMATION [Part I, TiTLE III innocent persons, was notable ; nor to encounter decisions holding that some practice did not merit observance since it was " mala consuetudo ",^ or some statute was void as " contra bonos mores." ^ Some writers,^ e.g. Azo and the Glossators, merely commented upon the Roman law and explained it, but did not expound it in the light of the " generalis consuetudo ", of the statutes, and of actual practice. Other writers,^ like Rofi'redus,^° Guilielmus Durantis, and Jacobus de Belvisio ^^ dealt mainly with criminal procedure only. But writers on substantive law who here deserve especial attention are: Albertus de Gandino (Gandinus),^- at the end of the 1200 s, Bartolus de Saxoferrato ^^ in his commentary on the law of Justinian, Baldus de Ubaldis (1328-1400), Bartolo- meus de Saliceto (died 1412), and lastly Angelus Aretinus de Gambilionibus (died 1450).^^ Among these the first place must be accorded to Gandinus, Bartolus, and Aretinus. However, it was not until the 1500 s, in the work of Julius Clarus,^'^ that the science of criminal law among the Italians reached its point of highest development. By the time the reception of the Roman law in Germany was being counteracted by the " Bambergensis " and the " Carolina ", it was exemplified in Italy in the work of Angelus Aretinus ; although most of the important and original contributions to the substantive criminal law must perhaps be ascribed to Bartolus. To him we shall have occasion to revert in the discussion of individual theories. It is easy to understand why, in Germany, relief from the unstable and defective system of criminal justice was first sought from those writers who " ex professo " had chosen criminal law for their subject, and also were more readily to be understood than the commentaries on the Digest and the Code ; this especially applies to Gandinus and Angelus Aretinus.^^ * Bonifacius de Vitalinus, "Rubr. quid sit accusatio", n. 113. '' Hippolytus de Marsiliis, "Practica causarum criminalium", § "Re stat.", n. 92. * The earliest treatise specially devoted to criminal law was that of Rolandinus de Romanciis (died 1284). Cf. Savigny, "Geschichte", V, p. 557. ^Concerning these writers, cf. especially Savigny, V and VI; Allard, "Histoire", pp. 397 et seq. ; Biener, "Beiträge zur Geschichte des Inquisi- tionsprocesses", pp. 93 et seq.; Rosshirt, "Geschichte und System des deutschen Strafrechts" (3 vols., 1838-1839), I, pp. 208 et seq. 10 Died 1250. " Born 1270. Died 1335. i^ "j.ibellus de maleflciis." 13 Born 1314. Died 1357. i» "Tractatus de maleflciis." '^ Born 1525. Died 1575. "Practica criminaüs s. Sententiarum re- ceptarum L. V." (1560, and many later editions). " References by Brunnenmeister, p. 148. 206 Chapter VII] GERMANY'S RECEPTION OF THE ROMAN LAW [§41 § 41. Early Law Books Introducing the Italian Legal Doctrines into Germany. — The efi'ect of tlie new Italian learning; was .seen in Germany not only in the local legislation, but also in the popu- lar literature, which sought to make the Roman law comprehen- sible to both the official judges and lay-justices (" Schöffen ") as well as to the educated public. The " Klagspiegel ", ^ com- l)ose(l about the middle of the 1400 s, and later edited by Sebastian Brant, drew especially on the works of Azo, Koffredus, and Gandi- nus. From the " Klagspiegel " in its turn, and also directly from Gandinus, was derived the " Wormser Reformation " of 149S.'- This influence of the Italians is also met with, although in an indistinct and indefinite manner, in the " Maximilianischen Halsgerichtsordnungen " for Tyrol (1499) and for the city of Radolphzell (1506).^ Those elements of crime which in the Middle Ages were determinative of guilt were here already abandoned. The element of intention, ascertained by tlie judge in the indi- vidual case, was judged according to the Roman-Canon law as the standard. Criminal punishment came to be treated as the State's aft'air, and not as a penalty inflicted at the discretion of the party injured. All these works were primarily sj'stems of procedure. The sub- stantive law is dealt with only incidentally and more or less in- adequately. It is best and most completely treated in the " Wormser Reformation." But this, which Stobbe ^ accurately fecHng tliat under some circumstances the mitigaticjn of tlie puiiishinent \v;is justifiable. The punishments for this crime in the neighl)oring \iirnb(>rg were abso- lutely revolting, and for this reason there occur in the Bamb.>rgensis the words "darynnen verzweyfllung zu verhüten." It is also stati-d at the end of the Article that the deed is an inhuman and unchristian one. and entailed the punishments of burying alive and impaling upon pikes if the prevalence of the crime seemed to render special severity neci-ssary. 211 § 42] THE RENASCENCE AND THE REFORMATION [Part I, Title III forms of capital punishment — burning?, brcakinj? on the wheel, pinching with hot tongs, quartering, and burying aHve. The reproach which has here been heaped upon Schwarzenberg dur- ing the past century of historical research is unjust. To have created a substantial change in the prevailing system of punish- ments would scarcely have been possible even for a powerful lawgiver, — much less so for the feudal lord of a minor territory. The system of community and civic life of the period did not believe that it could protect itself against its enemies without severe and harsh punishments. Moreover, whenever and so far as to him it seemed possible, Schwarzenberg did, as a matter of fact, show himself to be governed by feelings of humanity. This is evidenced by his efforts to make more careful definitions, and by his efforts, where some frightful penalties were being applied indiscriminately to acts of both greater and lesser criminal grades, to limit them to the former."* Certainly he did not collect into a general code all the kinds of punishment then contained in the various special statutes of the South of Germany. Comparison with the Nürnberg practice ^ shows that its punishments (which were particularly cruel and harsh) were not adopted as a whole by the Bambergensis. Relation of the Bambergensis to the Local Law. — The manner in which the chief achievements of the Italian legal learning ^ were assimilated by this author (who, while perhaps not an abso- lute genius, was clear in thought and careful in investigation) rendered his work far superior to the earlier " Klagspiegel " (of which he made use) and to the " Wormser Reformation " ^ and the " Maximilianischen Halsgerichtsordnungen." ^ The im- proved distinction of " dolus " (fraud or malice) and " culpa " ^ Cf. e.g. Art. 162 • "Item ein yeder mörder oder todtsehleger hat (wo er desshalb nit rechtmessig entsehuldigung aussflirn kann) das leben verwirkt. Aber nach gewohnheit etlicher gegent werden die fiirsetzlichen mörder vnd todtsehleger einander gleyeh mit dem Rade gerieht, darinnen soll vnterscheyde gehalten werden. . . ." Cf. Art. 156 relative to child murder. * Brunnenmeister, pp. 72 et seq. ^ As Brunnenmeister accurately shows, Schwarzenberg avaüed himself especially of Gandinus and Aretinus. ^ Both are made use of. Cf. Brunnenmeister, pp. 172 et seq. * These were not made use of by Schwarzenberg. Cf. Brunnenmeister, p. 102. "From the "Bamberger Stadtrecht", which Zöpfl sought to show was one of the chief sources of the Bambergensis, the latter borrowed only a few formulas of criminal procedure. And these were in part given up as meaningless by the "Carolina." Cf. Brunnenmeister, pp. 1 et seq. and especially p. 32. 212 Chapter VII] Germany's reception of the roman law [§42 (negligence),^ the adoption of a doctrine of attempt, and the cor- rect Itahan theory of self-defense,^'' — these already had in all essentials been correctly accepted in the " Klagspiegel." But besides these, we find in the Bambergensis a number of ex- cellent definitions of offenses ; for the most part they were taken from the Italian jurists ; but Schwarzenberg, being very familiar with the native law, shows a certain freer method of treatment and a frequent respect for the native law." Just as the Italian legal learning seldom dealt with local rules of punishment, out of which it seemed impossible to formulate a general theory, so the Bambergensis did not concern itself with criminal matters which were settled " bürgerlich " {i.e. by local law), or, as the phrase also ran, " im freundlichen Recht." Moreover, it did not concern itself with acts punishable only with money fines or short imprisonment, and for which in no instance was torture to be applied. The most it says on these subjects is that certain acts are not of a serious criminal nature and should only be punished " bürgerlich " {i.e. according to the custom of the locality). ^^ On the other hand, it was necessary, if the desired legal protection in the province of criminal law was to be effective, to do away with local custom ^^ completely in the field of criminal law proper {i.e., serious offenses), and to this extent to treat the Italian legal practice as exclusively valid. This is the meaning of Art. 125, so often cited. ^^ This passage does not forbid them to treat an act as criminal by analogy to a criminal statute, as some ^^ (in opposition to the general opinion) have believed. Of such a rule the Italian legal practice of that time had no thought, and it was far removed from the ideas of the 9 Art. 172. 10 In tlie consideration of participation in crime, in Art. 203, reference is simply made to the Italians. " CJ. e.g. Art. 194. "Von lioltz stelen oder hawen." '2 r/. Henke, II, p. 79. Hofacker in "Neues Archiv des Criminal- rechts", V, pp. 446 et seq.; Brunnenmeister, p. 242. '3 The meaning of which might be completely perverted by tho "Schöffen." '^ " . . . Aber sunderlich ist zumercken in was sachen oder derselben gleychen die Kayserlichen recht keinerley peinlicher straff am leben, eren leyb, oder glidern setzen oder verhengen. das unsere Hi(-litfr und vrtliey- ler dawider auch nicmant zum tode, oder sunst ju'lnlich straffen ..." ("It is especially to be observed in what cases and under wliat facts analogous thereto the Roman law did not fi.\ and inflict punishment of lifo and limb, so that our judges and tribunals may in contradiction thereto punish no one by capital j)unishment or in any other way.") '* CJ. e.g. Feuerhach, "Revision der Grundsätze und Grundbegriffe des positiven peinlichen Rechts" (1799), pp. 2(5 et seq.; Birnbaum, "Neues Archiv des Criminab-echts", XIII (18:33), p. 591. 213 § 42] THE RENASCENCE AND THE REFORMATION [Part I, Title III later German doctrine. It was only the inferior judges to whom anal<)t,nes of this sort were forbidden. Intrinsic Merit of the Bambergensis. — In respect to the funda- mental conception of criminal law, no advance beyond the ideas prevailing at the end of the Middle Ages is to be observerl in the Bambergensis. Clear expression is found of that same identi- fication of divine and human justice which characterized the later Middle Ages and continued so long into modern times. This is to be seen in the penalties for blasphemy, heresy, sorcery, and unchastity in crimes against nature. In an ecclesiastical principality, anything different was not to be expected. More- over, although the Bambergensis indulged somewhat in specu- lation, we encounter no trace of a doubt as to whether or not the cruel criminal law of the times was really justifiable. Yet upon this religious and theological foundation we find striking manifestations of a most ardent love for justice, a firm moral earnestness in searching out and prosecuting every abuse,^^ and the fear of doing injustice to the poor and lowly. ^" It may be true,^^ in the striking phrase ^^ of Sohm, that the Bambergensis and the Carolina are textbooks of the Italian criminal law. Yet when we consider the pithiness and appropriateness of their language, and the manner in which this statutory sanction and (as it were) adoption of an originally foreign law took place, we may well regard it as a notable example of German industry, conscientiousness, and solidity. It is something of which we may justly be proud. The Carolina was forthwith cited with the greatest respect by the leading Italian jurists. Recognition of the Bambergensis outside of Bamberg. — The Bambergensis proved its value. Even outside of the prin- cipality of Bamberg, inferior courts began to regard the expres- sions of the Bambergensis as authoritative."" Their attitude '^ Thus, e.g., eoniiscation of property as a punishment for suicide is not allowed. However, the Bambergensis proceeds upon the principle, so widespread in South Germany, that confiscation of property is impliedly entailed by all crimes meriting the death penalty. Cf. ante, §§38 et seq.; also Brunnenmeister, pp. 21, 22 and 193 et seq. '^ Art. 175: "wann zu grossen Sachen (als zwischen dem gemeinen nutz vnd des menschen plut) grosser ernsthafftiger fleiss gehört vnd ankert sol werden." ("Since in important matters (as between the com- mon good and human blood) there belongs and should be exercised very great earnestness and care.") ^^ Cf. Von Savigny, "Vom Berufe unserer Zeit für Gesetzgebung", p. 52. '^ In Grünhut' s " Zeitselirif t für das Privat- und öffentliche Recht der Gegenwart" (1874), p. 263. -" The prefaces to the various editions describe it as of ser\aee to cities, 214 Chapter VII] GERMANY'S RECEPTION OF THE ROMAN LAW [§ 43 was furthered by the fact that the Bamber^'ensis, in deahiig with points which did not seem to it to be sufficiently estabhshed in le<,^al practice, had o})served cautious hmitations, and within certain bounds had preserved local custom. A short and popu- larly esteemed encyclopedia ^^ of the secular law^ of the times, known as tlie " Layenspiegel ", and composed by the secretary to the Nördlingen council, llrich Tengler,-- reproduced in its third part, dealing with criminal procedure, substantially the contents of the Bambergensis. This was expressed, h()we\-er, in a more theoretical form, in brief and general maxims. Through this book the courts were given an even greater familiarity with the Bambergensis and the Italian legal learning. In 1516, with only a few changes, the Bambergensis, reproduced in the " Bran- denburgische Halsgerichtsordnung ", w^as introduced into the Frankish territories of the margravate of Brandenburg. §43. The "Carolina." — Thus the Bambergensis now pre- sented itself as the natural foundation for a general statute regu- lating procedure in criminal courts {i.e. " peinliche Gerichtsord- nung ") and applying to the entire empire. In spite of the complaints ^ as to the shortcomings of the criminal law% repeatedly brought to the knowledge of the Reichstag, no action had yet been taken. But finally, at the Reichstag of Worms, in 1521, the reform of criminal justice was again taken up, and this time in earnest. The commission, for that purpose appointed, was able on the 21st of Ai)ril, 1521, to submit a draft to the States for further action.^ This draft was essentially a reproduction of the Bambergensis, but it also made use of the so-calle(l " Cor- rectorium Bambergensis ", a collection of Bamberg decisions and ordinances of the years 1507 to 1515, which explained, supple- mented, and changed particular points in the Baml)ergensis.''' communes, administrative councils, official classes, etc. Cf. Stnbhe, "Geschichte der deutschen Rechtsquellen", p. 241. Concerning tho separate editions, cf. Rosshirt, "Neues Archiv d. Criminalrechts", IX. pp. 245 et seq.: Slobbe {ante). The first edition, by Ildiinscn PfcijU. ap- pearedin BamlxTfrin l.")07. Tlu> five following edit ions (i.e. until \'yA'.^) were printed in Mainz l)y Schöffer. An altered edition appeared again in Bamberg in 1580 (of this a second edition in 1738). As to the later editions, see post. -' CJ. Stinlzitif/, "Geschichte der pop. Lit.", p. 440; "Geschichte der Rechtswissenscliaft", pp. 85 ei scq. 22 Published first in 1.509. ' Cf. e.g. the Mainz memorial of the States of the empire to the Kaiser in 1517. Cf. Harpprecht, "Staatsarchiv", 111, p. 3()5 ; Giitcrhock, p. 25. 2 Güterbock, p. 45. ^ Cf. as to the so-called " Correct orium", Ilohharh, in "Neues Archiv 215 § 43] THE RENASCENCE AND THE REFORMATION [Pakt I, Titlk III This draft,'' first submitted to the Administrative (oiincil (" lleichsregiment "), did not become a hivv ; nor did the second draft proposed by the Achninistrative Council at Nürnberg in 1524.'' A third draft was submitted to the lleichstag at Spier in 1529. Finally, a fourth draft, submitted in 15;5() to the Reichstag at Augsburg, was enacted as law by the Reichstag at Regensburg in July, 15.32, under the name of " Kaiser Karls des funfi'ten untl des heyligen römischen Reichs peinlich gerichtsordnung." ^ Local Opposition. The "Saving Clause." — The opposition which had to be overcome in the introduction of a criminal code of such a general nature consisted for the most part in the far- reaching demand for the preservation of specific local rules of law. Many States opposed the " Halsgerichtsordnung " because they regarded it as an attack on their hard-won autonomy, and as an encroachment upon the (extremely summary) method of criminal justice practised by them. On behalf of the City of Ulm, at the Town Assembly at Esslingen, in 1523, the following declaration was made : ^ " The ' Halsgerichtsordnung ' tends solely to the disadvantage of the States of the realm, and can only be understood as encouraging and fostering all criminals." Electoral Saxony, with other States, e.g. Electoral Brandenburg, joined in opposing the " Halsgerichtsordnung ", because its pro- visions appeared irreconcilable with the Saxon law and the right of " Taidigung " (private composition) ^ still in force there. The result of these circumstances is to be seen in the so-called " sal- des Criminalrechts", 1844, pp. 233 et seq., 1845, pp. 105 et seq., 173 et seq. Cf. also Güterbock, pp. 61 et seq.; Stintzing, I, p. 514. ^ Schwarzenberg, although a member of the Administrative Council ("Reichsregiment"), probably took no part in the composition of the first draft. ^ This draft was in recent times accidentally re-discovered by Güter- bock in the "Königsberger Provincialarchiv." {Cf. Güterbock, pp. 85 et seq.) The manuscript had been brought to Königsberg by Schwarzen- berg, who in the years 1526 and 1527 resided at Königsberg with Duke Albrecht of Prussia. It may well be maintained that Schwarzenberg took part in the preparation of the Nürnberg draft. Cf. Güterbock, p. 93. ^Generally referred to by the abbreviation P.G.O. {i.e. "peinliche Gerichtsordnung") or C.C.C. {i.e. "Caroli constitutio criminalis"). As a matter of fact, Charles V had done very little towards this legislative work. '' "Die Halsgeriehtsordnung sei niemandem mehr als den Reichsstäden zum Nachtheil erdacht und zu nichts fürständiger, als alle Uebelthäter zu harzen und zu pflanzen." Cf. Abegg in "Archiv des Criminalrechts" (N. F. 1854), pp. 441 et seq. ^ I.e. "Wergeid" and "Busse." Cf. the declaration of the Saxon chancellor Christian Baier, quoted by Güterbock, pp. 136, 185. 216 Chaptek VII] Germany's reception of the romax law [§ 44 vatorische Clausel " ^ {i.e. savins; clause) of the preface to tlie Carolina: "Yet We, in gracious consideration of the electors, the princes and the States, desire in no way to detract from their ancient and well-established legal and customary usages." '" Nevertheless, the Carolina was not hereby (as is often incor- rectly assumed) ^^ reduced to the mere position of a code oft'ered to the States for their acceptance.'- Its pro\isions appear, indeed, as a rule, as compared to the well-established legal customs, to have only subsidiary validity.'^ But to some provisions, as exceptions, is attributed the force of absolutely binding rules." The limitation contained in the wording of the clause that nrir laws in contravention to the Carolina were not to be introduced, was also later ignored by the States of the realm. However, other circumstances than the Saving Clause and the ()pi)osition in support of local rules, contributed to the peculiar fate of the Carolina. § 44. Comparison of the Carolina and the Bambergensis. — Both in its general plan and in by far the greater number of its individual provisions, the Carolina corresponds very closely ' to the Bambergensis. Like the Bambergensis, it is j)rimarily a sys- tem of procedure. Like the Bambergensis, it treats of the sub- stantive criminal law incidentally, in dealing with sentences.- General theories are in part treated, along with the crimes in which they appear of especial importance, e.g. self-defense is treated along with homicide. Yet it is by no means a mere copy of the Bambergensis with occasional changes in those designations of persons and things appropriate only to Bamberg. Apart from provisions relating to procedure, an essential improvement can be noted in Article 145, which places very substantial limitations ui)on confiscation ^ We find a similar clause in the "Reichspolizeiordnungen" ("Imperial Police Regulations"). Cf. Stohhe, II, p. ISG. '""Doch wollen wir durch dise gn(>(lifr<' erinnerung Churfürsten. Für- sten vnnd Stendon, an jron alten wolhcrgi-hrachten rechtmes.sigen vnd l)illichen gchreuchen, nichts hciiotnincii hahcn." " K.(/. (leih, " Lelirhuch des (h'utschcn Strafrechts", I, p. 27G. '^ This conclusion is thoroughly confuted by Von Wächter, "Gemeines Recht", pp. 31 et seq. Cf. also Güterbock, p. 194. >' C/. Stintzing, "Geschichte der deutschen Rechtswissenschaft", p. 627. '^ Cf. Arts. 61, 104, 105, 135, 140, 204, and also Art. 218 dealing es- pecially with abuses. • The number of Articles is different. The Bambergensis contains 27S Articles and the Carolina contains 219. 2 Arts. 104-180. 217 § 44] THE RENASCENCE AND THE REFORMATION [Paut I, Title III of property, and also in Article 218, dealing with various abuses. The Carolina, since it sets forth the generally prevailing law, corresponds even more closely than the Bambergensis to the doctrines of the Italian legal practice. In various aspects may be noticed the assistance received from the jurists. Local law, as it was contained in the Bambergensis, is abandoned. The activities of the Reformation, which had now intervened, had led to changes in only a few passages, as, for example, the absence in certain places of mention of the clergy.^ The omission of Article 130 of the Bambergensis, dealing with heresy, was occasioned not so much by the view that heresy was not a crime, but rather because spiritual jurisdiction was no longer recognized in the way it had been recognized in Article 130.^ Careless Manner of Publication. — The publication of this new and important imperial statute was made in a peculiarly careless manner. It was intended to be directly binding not only upon the States of the empire, but also upon all subjects and de- pendencies of the empire, and particularly upon all official authori- ties. Publication took place at the press of the Mainz printer, Ivo Schofler, who was given a special privilege for this purpose. In this privilege it is declared : "es soll auch keynem andern ge- druckten Abschiedt an eynichen ort inn oder ausserhalb gerichts oder rechts geglaubt werden." '" And yet not a single copy of the original was retained by the imperial officials. Presumably the only original text was the one delivered to the printer. The principal edition of February, 1533 (there is a dispute as to the existence of an earlier edition), is not free from typographical errors, and there is also no lack of mistakes in the writing and editorial work of the original draft. Often these mistakes are such as to make it difficult to ascertain the meaning.^ Because of these difficulties, an edition satisfying all critical requirements is not extant, and indeed only became possible after Giiterbock's investigations of the original records.^ 3 Cf. Stintzing, "Geschichte", I, pp. 628, 629. * Güferhock, pp . 260 et seq. ^ Giiterhock, p. 207. "No faith or credit shall be given to any copy printed in any other place within or ^s-ithout court or law." ^ Gtiterbock, pp. 217 et seq. ' Later editions were prepared by Koch, Reinhold Schmid, and Zöpfl. The edition by R. Schmid also gives the text of the "Bambergensis." The edition by Zöpfl (1842) contains the "Bambergensis", the "Branden- burgica", also the draft {i.e. preliminary draft) of 1521 (Worms) and that of 1Ö29 (Speier), here referred to as the first and second drafts. An edition by Züpfl in 1876 gives in a sj^noptic form the Carolina, the Bam- 218 Chapter VII] GERMANY'S RECEPTION OF THE ROMAN LAW [§ 44 Varied Application of the Carolina. — The Saving Tlause of the Carolina rendered possible a great diversity of conditions in the various States. If in a given jurisdiction the abuses so vigorously repudiated by the Carolina did not exist, one might even hold the opinion that all of the former law could be included under the " good customs theretofore in use ", and that these therefore had not been altered by the Carolina, and that consequently the Carolina could be simply ignored. It was also possible to make a special edition of the Carolina with modifications and supple- ments, clearly showing, for the provincial courts, the rules which were valid along with the Carolina as " good " custom in varia- tion therefrom. Or, again, Carolina might be adopted literally and completely, and published without local addenda, on the ground either that special customs in addition to the Carolina did not there exist, or that the courts would not be in doubt in respect to them. All of these above-mentioned attitudes were taken. The " Rechtsbuch " of Rottweil, of 154G, and the statutes of the city of Frankenhausen of 1558, merely reproduced their earlier law, paying no attention to the Carolina. The new " Brandenburgica " of 1582 was a reproduction of the " Brandenburgica " of 1516, with a few supplements referring to the Carolina. The " Landes- ordnung " of Henneburg of 1539 was a new compilation, consist- ing of specific provisions of the Carolina and a reproduction of a " Landesordnung " of Tyrol of 1532.^ Publications of the Caro- lina with no additions at all were made e.g. in Electoral Cologne in 1538, in the " Coiner Reformation " of the secular courts, by the Duke of Pomerania in 15G6, and in 15G4 by Duke Heinrich of Braunschweig-Wolfenbiittel. Simple instructions to the courts to be guided by the Carolina were given in Electoral Brandenburg in 1540,^ and in the " Ilofgerichtsordnung " of Celle in 150-4.^° Modifications of specific provisions only of the Carolina were made e.g. in the Frankfurt " Reformation " of 1578, and to a greater extent in the " Malefizprocessordnung " for Bavaria, bergensis, the "Brandenburgica", and both the above-mentioned drafts. A small edition by Zöpfl of the text only of the Carolina api)eared in 1870. Cf. also G. W. Böhmer, "Ueber die authentiselien Ausgaben der Caro- lina" (Göttingen, 1837). [But now see the citations in note 1, § 40, ante. — Ed.] 8 This is based upon the "Malefizordnung" of 1499 and the " Frei- burger Stadtrecht." ^ Hnlschrter, "Geschichte des Brandenburgisch-Preussischen Straf- rechts" (185.5), p. 113. " Cf. Von Wächter, "Gemeines Recht", pp. 38 et seq. 219 § 44] THE RENASCENCE AND THE REFORMATION [Pakt I, Titlk III Avliich formed the last part of the Bavarian " Landrecht " of General Effect of the Carolina. — As a matter of fact, the influ- ence of the Carolina over the local laws was much stronger than might be inferred from the wording of the Saving C'lause. Ac- tually, it obtained general force, to the extent that deviations therefrom could not be justified by appeal to statute or special custom. The intrinsic merit of the work secured for its common law a predominance for a long period, in spite of the increasingly prevailing tendencies towards local autonomy. Especially in the south of Germany, the services rendered by the Carolina to the legal conditions of the times were clearly manifest. The greater exactness and precision of definition which characterized the Carolina, as contrasted with earlier legislation^ were important features. The same may be said of its suppres- sion of numerous abuses, and of its elimination of provisions in the nature of rules of proof completely perverted or no longer suitable in the new state of legal knowledge. As already noted, the punishments of the Carolina, as contrasted with those of the south of Germany, may upon the whole be regarded as mild. The gradual elimination of " Taidigung " (i.e. private composition) and of judicial discretion in sentences, was a step in advance, even though individual cases thereby lost the benefit of judgments based upon humane considerations. But in the north of Ger- many the case was somewhat different. There the Carolina brought about an increase in the severity of penalties. Punish- ments by mutilation had previously been practised but little. The Carolina, by sanctioning the purely inquisitorial form of procedure, perhaps prevented the development of a form of pro- cedure corresponding more nearly to the earlier German law. 220 Chapter VIII GERMANY IN THE LATE InOOs AND THE 1600 s §45. §46. §47. §48. §49. Relation of the Carolina to the Reformation. Reli- gious Tolerance. Un- fortunate Results of the Reformation. The Literature of the 1500 s and 1600 s. The Juris- consults and the Law Faculties. Domination of Theology. Witchcraft and Blasphemy as Crimes. Despotism of the Rulers. "Lese Majeste" as a Crime. § 50. Abuses of the Criminal Law ; the Case of lioym. § 51. Scantiness of Legislation. Evasion of the Carolina. Berlich and Carpzov. § 52. Recognition of the Principle of Mitigating Circum- stances. Rise of Im- prisonment as a Penalty. Changes in the. Law of Proof. § 53. Doctrines as to .Judicial Dis- cretion in Defining Crimes. § 4'). Relation of the Carolina to the Reformation. — How the Carolina can be termed ' " an achie\enient of the sjjirit of the Reformation " is certainly not clear. This would have the strange implication that the conscientiousness, with which the Carolina infuses the criminal law, was not a general charac- teristic of the Germanic spirit, but merely a special characteristic of the spirit of the Reformation. The prominent men of the times were indeed all under the influence of the Reformation ; this sufficiently explains the large share taken in the Droduction of the Carolina by men such as Schwarzenberg and Baier. Religious Tolerance. — As a matter of fact, the position taken by the reformers was unfavorable, rather than favorable, to i)rog- ress in the general conception of criminal law. Of course, since the adherents of the Confession of Augsburg and the reformed faith had obtained recognition from the Empire, there could be no call for a common law punishment of the adherents of this Confession ; so too, in the Catholic States, the impropri(>ty of proceeding against them imder the criminal law as heretics was 1 Thus Güterbock, p. 207. 221 § 45] THE RENASCENCE AND THE REFORMATION [Part I, TiTLE III gradually established. The logical consequence of the Reforma- tion, since it demanded a free and open examination of religious dogmas, would have led to a declaration that the punishment of heresy was not permissible. But logic has not always been ob- served by religious organizations ; and ultimately the persecution or tolerance of those of another faith came in the great majority of cases to be merely a question of power. Luther, to be sure, had at first expressly denied the existence of the right to coerce another in a matter pertaining to faith ; - it would be excellent to have faith and convictions entirely free. But like Augustine, when he acquired greater power,^ he changed his opinions ; moreover, the excesses of the Anabaptists and the Peasants' War warned him of the necessity of caution.'* As is well known, he wTote against the " Meister Omnes " and the " false prophets ", and advocated reform only through authority. When even the mild-hearted Melanchthon ^ found justification for the punishment of certain heretics on the grounds of blas- phemy (a theory which for a long time afterwards permitted in Protestant countries a prosecution by criminal law of the various sects), ^ it is not to be wondered at ^ that Calvin and his followers preached and appear ^ to have practised the old persecutions of heresy in their harshest and most repellent form. As a matter of fact, the principle of freedom of religious faith was not achieved 2 Cf. Luther's Works, pubKshed by Jenischer, Vol. 22, p. 85. As to the extent to which obedience is due to worldly authority, "Heresy can never be prevented by force", p. 90. ^ Cf. the wTiting : "An den christhehen Adel deutscher Nation." * Cf. also Janet, "Histoire de la philosophie morale et politique" (2 vols., Paris, 1868), II, pp. 38 et seq. 5 Works, XII, pp. 696 et seq. ^ Brunnemann, "Tractatus de inquisitionis processu", IX, n. 2, asserts that it is criminall.v punishable if any one denied the truth of the Ecu- menical Council. Various punishments ("exilium", "deportatio") were inflicted by followers of the Evangelical churches, the death penalty was inflicted by the Catholics. Among the former the punishments were mitigated by appeal to Novel 129 ("Hieretici quiete \aventes asperius tractandi non sunt"). The extent of the conception of blasphemy is evident from Damhouder, "Praxis rer. crim.", c. 60, n. 11. Hereunder is included, according to Damhouder : "negare Dei filium non esse verum hominem." ^ Cf. post. Part II, under "Historj^ of the Theories of Criminal Law." * Cf. notably the well-known and repulsive history of the condemnation and burning of Michael Servetus in 1553 at Calvin's instigation {Gaberel, "Histoire de I'eglise de Geneve" (1855), II, pp. 226 et seq. A heresy trial of Valentin Gentilis was prevented in Geneva, — he was in 1566 executed at Berne. The esteemed work of the Geneva divine, Theodor Beza, "De hseretieis a eivili magistratu puniendis" completely embraced the theories of the Papists in regard to prosecutions of heresy. 222 Chapter VIII] GERMANY IN THE 1500 s AND 1600 s [§ 40 by the Reformers, and was not established until the period of Philosophy in the 1700 s. Unf ortvinate Results of the Reformation. — The immediate result of the Reformation was a retrogression in the general con- ception of law.^ While the antagonism between Church and State during the Middle Ages had often led to a thoroughgoing and critical examination of the doctrine of law and State, and the power of even the Pope himself was often substantially limited by appeal to the " Lex natura^ ", the Reformers, in accordance with the doctrine of Paul, " All authority is from God ", readily regarded divine and secular law as identical. Consequently tiieir theory of criminal law was nothing other than a complete identi- fication of secular and divine justice. It was simply a justifica- tion of the " status quo ", based in one aspect upon the Bible and in another upon motives of temporary expediency, without an attempt to harmonize Christian love ^° and cruel penalties. '^ In this respect, on the whole, the discussions of Thomas Aquinas, not to mention many of a later date, had been of a somewhat higher character. § 46. The Literature of the 1500 s and 1600 s. — Powers of thought and action were absorbed by the theological controversies. This explains why, although the Carolina made some practical improvement in legal conditions, one cannot speak of a scientific administration of criminal law in Germany during the löOOs. The work achieved during this time consisted simply in copying what the Italians had written on points not covered by the Cart)- lina, and thus in supplementing the Carolina.^ The German writers did not interpret the Carolina as a code ; they did not develop the principles of the Carolina and draw logical conclusions therefrom, nor did they expound the statute i)riniarily from tlic » r/. J and, and especially the accurate proof in Gierke, "Johannes Althusius und die Entwicklung' der naturrechtlichen Staatstheorien" (Breslau, 1880), pp. ü4 et se(i., pp. 27;i, 27.") ; Cierke, "Das deutsche Genos- senschaftsrecht", Vol. 111 (18S1), pp. (525 cl sc(j. '0 (J. Luther's " Kirchenpostille, Predifjten ül)er die EvanRelien". 4, n. "Trinitatis" (Works, edited by inoehmnnn, üi, p. 41): "Der Richter dienet Gott." 'IC/. Calvini, " Institutiones Relig. Christ.". Lil». IV. <;. 20 n. 1: "... Deo jubente ab auctoritate omnia fieri . . . Divinis numdatis xücisei." 'Thus Perneder (di(-d l.')40) in his so-called " Uals-renchtsordnunfr })u])lished often after liis death ("Von Straf und I'eeii aller uikI i.'d.;r Alalelizhandlunüfcii in kurzen lierichl fjenoninieu . . . "). says that his Avork, in its exi)lainin!,' and wideiiiiifi: of the Carolina, consists of the common subsidiary law {Wackier, p. 77). 223 § 40] THE RENASCENCE AND THE REFORMATION [Pakt I, Titlf: III statute itself. Their work vvus rather in tlie nature of supple- mentary codification, by reference to the Roman law and the Italian literature. Reference to the former, in the absence of knowledge of legal history, was uncritical and often absurd ; the best results were obtained when they simply copied the Italian jurists. The learning of the latter had reached its zenith^ in Aegidius Bossius,^ and above all in the lucid and learned treatise of Julius Clarus.^ The German writers were, however, less te- dious when (as often) they adhered to the superficial and common- place " Praxis rerum criminalium " of the Hollander, Damhouder ; ^ direct use of this was made in the practice, and it acquired a high reputation in Germany. To all works of this character there is more or less applicable the statement made by Wächter, in his masterly treatise on the literature of this period anent that espe- cially lifeless and depressing book by Ludwig Gilhausen, " Arbor judiciaria criminalis " ; he says : " The articles of the Carolina appear, so to speak, like great unmelted dumplings floating in a broth concocted from the Roman Law and the Italian authorities." ^ - Along with these mention should be made of : Hippolitus de Marsiliis (died 1529), judge in many cities of Lombardy, professor in Bologna ("Practica causarum criminalium") ; Bonifacius de Vüalinis, "Tractatus super malefleiis" (the characteristics of this writer are too unfavorably given by Allard, pp. 401, 402 ; he is not so entirely devoid of original ideas as Allard infers) ; Tiberius Decianus (died 1581), "Tractatus criminalis." This last-mentioned writer however does not merit the praise bestowed upon him by Wächter, p. 68. It is rather the fact that he apparently clearly marks the beginning of the decline of the Italian learning. It is worthy of notice that in Decianus a beginning is found of the arrangement of the so-called "general part" (now common to continental treatises on criminal law). His deductions, however, are often arbitrary {e.g. his discussion concerning the "poena extraordinaria", IX, 36, n. 3) and con- tradictory ; and as a zealous Papist, Decianus was too much under the influence of the Canon Law, e.g. cherished extreme \'iews in regard to the prosecution of heretics. The most famous of the later Italian jurists was Prosper Farinacius (died 1618). In his very voluminous writings he attempted to concen- trate all that had been written. Remarkable for their erudition, but overwhelmed in a wilderness of citations, his \\Titings are difficult to read, and often fail, amidst the mass of qualifications and distinctions, to reveal the principle upon which he proceeds in his decision of disputed questions ; they are laborious and dry reading ("0pp. omnia", 9 vols, fol., Frank- furt, 1616, of which Vol. II contains the "Tractatus de testibus," Vols. IV and IX, "Decisiones Rotae"). ^A Senator of Milan, born 1486, died 1546. "Tractatus varii qui omnem fere criminum materiam complectuntur" (Venice, 1512). ^ Born 1525 at Alexandria, died 1575 at Saragossa, as adviser of Philip II. " Sententiarum receptarum libri V. s. practica criminalis" (1560 first, with successive Commentators ; notes of Bajardus are also important). ^ As to Damhouder, cf. especially Stintzing, "Geschichte", I, pp. 604 et seq. The earliest well-known edition is that of 15.54. ^ The first work after the publication of the Carolina was a Latin 224 Chapter VIII] GERMA>^Y IN the 1500s and 1600 s [§ 4G Yet this method of deahns with the CaroHna is not as stran^re as it may seem. It was the intention of its authors that it should be supplemented, not directly from itself, but rather from the " kaiserliche beschriebene Recht ", i.e. from the Italian le<;al practice, and from the local law. More accurately examined, the misconception of that purpose is found, n(jt in the literature next following the Carolina but rather in that later literature which treated the Carolina as a genuine code, to be supplemented primarily from its own principles. The Jurisconsults and the Law Faculties. — It is also quite possible that the really learned legal practice, which in that period was represented not so much by the treatises and text- books as by the " Consilia " (opinions furnished to clients)," always looked immediately for guidance to Italian legal science; and that the Carolina, during the period immediately following its first publication, merely had the effect of confirming opinions elsewhere acquired. This is seen in the works ccj. of Joh. l-'ichard,** Recorder of Frankfort-on-Main, and the most famous legal adviser of his times, ^ and also in the works of ^Nlynsinger.'" The Carolina was not intended for the really learned jurists. This explains why, even in those States where the Carolina had been specially promulgated, the jurists of high reputation continued to l)ase their opinions, not on the Carolina, but on the Roman and Italian translation of the same by Gobler, 154.3. A later and better Latin para- phrase is that by Remus ("Nemesis Carolina;") pulilished in l.")04. Both these were again edited in 1837 by Abegg. Other works eonipleting tlie system of the Carolina are: Gobler, "Der Rechten Spiegel" (Frankfurt. 15Ö0) ; Heinrich Rauchdorn, "Practica und Process peinlicher lials- gerichtsordnung" (1564); Joh. Arn v. Dorneck, "Practica und Process peinlicher Gerichtshandlung" (1576); Abraham Sawr, "iStraflfbuch " (first in 1577) ; Vigel, "Constitutiones Carolinse publicorum judiciorum " (1583, in spite of the praise Iwstowed upon it by Wächter, this work is not much superior to the others mentioned above); flarpprccht, "Tractatus criminalis" (first in 1603). Kilian König' s "Practica und Process der Gerichtsleuffte, nach Sechsischem gebrauch" etc. (first in 1541) contains little concerning criminal law. {( f. also Udlschncr, p. 121, note; Geib, I, pp. 287 et seq.; Slintzing, "Geschichte", 1. pp. 6.30 el seg.) ^ In the beginning, they would hav(> little to do with the seldom lu- crative criminal cases; moreover the jurists were also often clerics, and therefore could refuse to take part in the "Blutgericht" ("Blood court ". i.e. criminal court). Cf. Stinlzing, I, p. 608. * Concerning Fichard, rf. Stinlzing, I. pp. 586 (7 scg. ^ Cf. "Consilia" (1.590 fol.) Cons. 61. Here, in dealing with a case coming b(«f()re the court in l.')40, the provisions of tiie Camlina concern- ing hoMiicide resulting from chance medley were not observed. "* Mynsingcr, "Observ.", Ill, 9, in discussing tlie punishment of attempt makes no mention of the Carolina. (As to Alynsinger, born 1511. died 1588, cf. Slintzing, I, pp. 485 el seg.) 22Ö § 47] THE RENASCENCE AND THE REFORMATION [Part I, Title III autliorities. Indeed, they invoked the CaroHna for the most part only upon an appeal reviewing the proceedings in a lower court, to determine whether or not a lower court had erred.^^ Consequently the scientific and practical activities and abilities of the higher courts, and especially of the law faculties (who were constantly acquiring more and more of a dominating influence in ])ractice), are not to be judged })y the above-mentioned literature. The practical business of giving advice and rendering opinions was extraordinarily remunerative and held in much honor ; it made such demands upon the time of jurists of reputation that they did not aspire to literary activity, but left this to those of more subor- dinate and mediocre abilities.^^ The " Consilia " of Fichard and of the Tübingen Facidty give evidence of a far superior grade of legal practice than one would surmise from the scientifically valueless literature. They reveal that moral earnestness and courage which defended the oi)pressed against the despotism of princes,^^ and brought the law faculties gradually to that high position which they maintained during the ensuing three cen- turies.^^ § 47. Domination of Theology. Witchcraft. Blasphemy. — There were two enemies against whom legal science was obliged to defend itself. These were the bigoted theology and the despot- ism of the princes. It is notable that the assistance of the power of the princes later served to overcome theology. The domination of theology manifested itself in many partic- ulars. The most important was the atrocities of the witchcraft trials, by which (far more than by war or plague) many regions during the 1500 s and 1600 s were periodically decimated.^ At beginning, to be sure, the Church had vigorously condemned " Cf. Seeger, "Die strafrechtlichen Consilia Tubingensia von der Gründung der Universität bis zum Jahre 1600" (Tübingen, 1877), p. 33. '- Ibid., pp. 28 and 31 et seq. 13 Cf. the "Consilium der Sichardt'sehen Sammlung", cited by Seeger. " In general, since the middle of the 1500 s, the activity of the learned jurists in criminal causes became more extensive {cf. Stölzel, "Die Ent- wicklung des gelehrten Richterthums in deutsehen Territorien", I (1872). pp. 349 cl seq., and Stintzing, "Geschichte", I, p. 635). After the middle of the 1500 s, the criminal law was treated as a distinct and separate sub- ject, e.g. in Tübingen, Jena, Rostock, Ingolstadt {cf. Stintzing, I, p. 635). 1 Cf. especially Soldan, "Geschichte der Hexenproeesse", recently re- vised by Heppe (2 vols., 1880), and Von Wächter, "Beiträge zur deutschen Geschichte", pp. 81 et seq., pp. 277 et seq.: Stintzing, "Geschichte". I, pp. 641 et seq. In the bishopric of Bamberg, e.g., with a population of 100,000, there were executed, during the years 1627-1630, 285 persons. A witch- craft judge in Fulda in 18 j'^ears brought his number of death sentences up to a total of 700. 226 Chapter VIII] GERMANY IN THE 1500 s and IGOOs [§47 belief in the possibility of an alliance with the Devil.- But later it recognized it officially. There was no more effect i\'e way to arouse the people to fanaticism against heretics tiiaii to make it clear to them that the heretics were in league with the Devil.'' Thus, in Arras, in 1459, a large number of the Wait lenses were burned to death, on the ground of an alleged alliance with the Devil. In 1484, Innocent VIII ordered the judges commis- sioned to sit in heresy cases for Germany, Heinrich Institor (Krämer) and Jacob Sprenger (both of them professors of theology), to prosecute sorcerers also with the utmost zeal. With the approval of the Faculty of Theology of Cologne there was composed for these two heresy judges the so-called " Malleus maleficarum " (" Hammer of Witches "), a formal treatise on the belief in witches and their inquisition. The inquisition of witches, especially with the use of torture, now acquired truly revolting features. The Bambergensis ^ and the Carolina ' had proceeded with some moderation, since they made sorcery a crime punishable with death at the stake, only when it was injurious to others. In other cases the penalties were left to judicial discretion. En- lightened men, such as Fichard,^ denounced the charges of noc- turnal dances and intercourse with the Devil as products of the imagination. But judicial practice, inspired by theology and at the same time fearing it,' soon began to throw aside the limitations imposed by the Carolina.^ Invoking the same principle as in other matters, it declared the Mosaic law to be a connnand un- equivocally binding upon the authorities. '■' And so, with all seriousness, the judicial trials investigated the various kinds of alliances with the Devil.'" Upon the whole the Protestant theol- 2 Charles the Great in 785 had ratified a decree prepared by tlie Synod of Paderborn, bv which expression of beUef in witchcraft was forbidden. CJ. Snldan-IIeppe, I, p. 128. 3 Voit Wächter, p. 89. '' Bambergensis, I'M. s CaroHna, 109. ^ "Teutsche Rathschliige", p. 112. ^ Leyser, as is well-known, wonid not wijlingrly lake issue witli tlie theologians. He twice changed his ojjinion in regard to incense, each time to bring himself into harmony witii tiie tliei^logjans of the couiUry in which he lectured. (Cf. Sj). 5.S(), n. 1.) * According to the "Constitutiones Saxonica«'" of l.'>72. IV, 2, death by burning was the penalty even if no harm had l)een wrought. Sooth- saying and magic also entailed the death jjenalty il)y the sword). ' Cf. Exodus, xxii, IS: "Tliou shalt not sutTer a witch to live."' '" Cf. e.g. Cnrpzov, "Practica nova Imperialis Sa.xouica rerum crimina- lium" (1635), qu. 49 u. 23 ct seq. 227 § 47] THE RENASCENCE AND THE REFORMATION [Paut I, TiTLK III ogy," constantly more and more bigoted, was just as active as tlie Catholic theology in its incitement of the prosecution of witches. There may often be found in the libraries peacefully bound together in the same volume the products of this insane superstition of both Catholic and Protestant theologians, who in other matters were contending furiously. Another evidence of this domination of theology is to be found in the fact that (by virtue of the above-mentioned opinion about the direct obligation of many expressions in the Bible) '- the right of the magistrates and rulers to remit death sentences was success- fully contested. ^^ As against " Lex divina ", that power of the " Princeps ", to which the Italian writers had such frequent re- course, did not appear to obtain. In doubtful cases of this char- acter the rulers even referred the matter to the clergy for their opinion ; this was done even until the 1700 s.^^ Still another example of the zeal of the bigoted clergy is seen in the severe punishment ^'^ of blasphemy; ^^ so, too, in the punish- ment of unchastity, in many of the Protestant countries,^" and especially in Electoral Saxony, where the power of orthodoxy was supreme. There we find death by the sword prescribed for adultery,^^ and unless special reasons for mitigation (and in prac- " However, in some of the Protestant countries the rulers took a rational attitude (e.g. Mecklenburg, Würtemberg). 12 In one of the opinions rendered by the Faculty of Tübingen in 1695, the view was sustained that the civil authority could straightway inflict a penalty valid under the Mosaic law (Harpprecht, " Consil.", .53, n. 17, 18.) " Cf. concerning reference of cases to the theologians for their opinions, especially in reference to mitigation of punishment, Leyser, "Sp." 597, n. 28, 30. Leyser was of the opinion that in homicide there could be no period of limitation against the punishment, and no mitigation of the punishment {e.g. because of the youth of the offender), since the divine command was expressed without qualification. A Brandenburg ease was referred to theologians for their opinion, whether the death penalty could be remitted in the ease of persons seemingly not responsible. "According to Frölich v. Frölichburg's "Commentar zur P.G.O." (1710), II, 211, the clergy in deciding the question whether a child was a human being or a monster considered whether or not it could have been: baptized. 1^ In Saxony the more serious cases of sacrilege were punished by break- ing on the wheel. Carpzov, IT, qu. 89 n. 18 el seq. 1^ The generally lenient Tübingen Faculty {Harpprecht, "Consilia", 81) in 1680, in a not extreme case, imposed the death penalty, and in 1706 in a more serious case imposed the death penalty in an aggravated form. The bigotted Brunnemnnn ("Traetatus de inquisitionis processu", 9, n. 1) reports a ease in which the Frankfort Faculty had imposed a sentence of cutting out the tongue, and adds "nee ejus me poenitet." 1' In 1681, the Faculty of Tübingen sentenced to death with the sword a boj^ of seventeen apparently phj'-sically and morally depraved, for sodomy with animals. 18 The " Kursächsiche Constitution" of 1543 provided death by the 228 Chapter VIII] GERMANY IN THE 1500 S AND 1600 s [§48 tice these were apparently quite liberal) could be invoked, this penalty was for a long time relentlessly carried out.^^ The distinction between the provinces of the temporal and spiritual judges finally became so confused, that in Protestant countries where the clergy were more or less given " de facto " recognition as State officials, the Courts pronounced the regular punishments of the Church.-" § 48. Despotism of the Rulers. — The Protestant theology also tended to strengthen the principle of the omnipotence of the sovereign, by casting upon it the lustre of divine authority. This power of the " Princeps ", by application of the Roman maxim " Princeps legibus solutus ", ^ had already been given a very questionable extension from the Italian jurists. The Reformers made direct use of the secular authorities, especially in the States of the empire, for the spreading of their doctrines. Consequently they often preached absolute submission to established authority,- even to a bad ruler. The established authority was to them the direct representative of God. The maxim of Theodor Beza : ^ " Rei publicie quidem interest, non modo ne quis re sua . . . sed etiam se ipso . . . male utatur ", laid the foundation for a power of the State in matters pertaining to police regulation that was absolutely despotic in character. This absolute power was even considered a sufficient basis for the enactment of higher penalties than would otherwise have been justifiable, on the ground that the offender had transgressed a supreme command of the ruler and repudiated the ruler's author- ity.* For example, in contravention of the common law, it was sword for adultery of the husband as well as the wife, and this punishment was to be inflicted upon the third party even in a case where there was forgiveness on the part of the injured spouse. Carpzov, II, qu. 54 n. 32 et seq. '» The influence of the clergy also led directly to judgments containing a false moralizing element. In Zofingen (Switzerland) in ICA'.i, pursuant to a decision obtained after reference to the ch^rgy, a man was beheaded because he had not saved his wife in an aceidi'Ut. Oacnbriiggcu, "Stu- dien", pp. 2, 3. 20 Thus, by a judgment given in Carpzov, II, qu. 92 n. 37, a usurer was sentenced to death, not only without honorable burial, but also without receiving the Sacrament. 1 C/. Theod. Rcinkimjk, "De regimino sirculari" (1613 ed. 1) 1. 2, c. 12, n. 8 cl seq., who, however, in accordance witli the Middle Ages theory would hold the "princeps" bound bv "leg(>s divina'" and " luiturales." 2 Cf. Calvini, " Institutiones Helig. Christ.", IV, 22 c. 2, 3, 27. ^ "De hipreticis", p. 23 (cd. of X'yTvi). •« Cf. the "kursächsisches Mandat" of l.")S4 concerning the punishment of poaching, "von Niemand uns trotzen lassen." 229 § 49] THE RENASCENCE AND THE REFORMATION [Part I, Title III deemed justifiable to punish with lieavy penalties the stealing of wild deer,"" since this was prejudicial to the exercise by the prince of his noble passion for the chase. Where the property or any other special interest of the ruler seemed jeopardized, it was con- sidered justifiable to ignore all ordinary limits in the fixing of penalties.^ § 49. The Crime of " Lese Majeste." — The crime of "lese maj- este ", which was gradually made to cover attacks upon the States and their rulers, possessed often, as formerly in the time of the Roman Csesars, a terrible significance. It w^as used even by the Protestant theologians and their zealots as a means to destroy their opponents and to prosecute heresy. As is well known, Craco, the Saxon privy councillor, sufi'ered martrydom with slow torture at the command of the Electoral Prince August, because he w^as accused of a conspiracy to introduce Calvinism into Electoral Saxony.^ As in the time of the Roman emperors, a political minister's failure, actual or apparent, in acts of State, was attributed to disloyalty ; and the prince's prior sanction signi- fied little if after the event his altered opinion condemned it. jNIoreover, no distinction was made between the private interests 5 In Wiirtemberg, towards the end of the 1500 s, the punishment of putting out of the eyes was inflicted for steaUng deer. Emperor Fer- dinand I interfered with this custom {cf. Kress, 159, § 5 n. 3). Cf. as to the punishment of poaching during tliis period, also Roth, "Geschichte des Forst- und Jagdwesens in Deutschland", pp. 468 et seq. In TjtoI, at the beginning of the 1700 s, the extreme penaltj'^ was a sentence to the galleys: Frolich v. Frölichburg, "Commentar zur P.G.O." II, 4, 6. «A royal decree ("constitution") of Braunschweig-Lünebiu-g of the 3d of January, 1593, against adultery and harlotry, made the latter punishable with the sword when committed in churches, cloisters, or "auf unseren Schlössern" {Kress, "Commentar", Supplement, p. 851). An Edict of Hannover of Sept. 12th, 1681, imposed death by hanging for theft of the royal silver plate, without distinction as to how much or how little was stolen {Kress, p. 851). Cf. also in the 1700 s,.the Royal Prussian Edict of Jan. 4, 1736, against steaUng wdthin the royal palace ("Corpus Constitutionum Marchicarum", II, Abth. Ill, X. 75). As an example of legislation of this character is frequently cited a Prussian Edict of 1739 . "If an advocate or attorney or any other such person shall have the pre- sumption to cause a direct petition in a legal proceeding or plea for a pardon to be presented to his Royal ^Majesty by soldiers, or if any other of the people be prevailed upon by him to present to his Royal Majesty a direct petition in a settled and decided case, then shall Ms Royal ^lajesty such person . . . cause to be hung and cause a dog to be hung with him." Cf. also. Berner, "Lehrbuch des deutsehen Strafrechts", § 54, and concerning this Brandenburg-Prussian legislation, cf. the exposition (somewhat too lenient however) of Abegg in Hitzig' s "Zeitschrift für Criminalrechtspflege in den Preussischen Staaten" (1836, Supplement, pp. 129 et seq). • Cf. Kluckhohn, "Der Sturz der Krvtocla\dnisten in Kursachsen" (1574) in Von Sybel's "Historischer Zeitschrift", Vol. 18 (1867), pp. 77- 127. 230 Chapter VIII] GERMAXY IX THE 1500 S AND IGOJs (§49 of the princes and the interests of the country.'- Thus, in tiie outrageous proceedings for treason against Crell, the Cliancellor of Electoral Saxony, who after a ten-years' imprisonment was in 1601 brought to the scaffold, the charges were that this once powerful counselor of the electoral prince had asserted for the prince prerogatives which he did not possess, had aroused dis- cord in the royal court, and had incited the prince to a hatred of his consort.'' In the times from the 1700 s on, when ministers were all-powerful (and sufficient mischief may indeed be laid at their doors), their office was for these reasons not without its dangers.'* Even to hold a high position might later become high treason on the part of the overthrown favorite. Leyser '' even discusses in all seriousness whether " ^Nlinistrissimatus " (i.e. the preferred position of an all-powerful minister) does not in itself constitute a crime. Other Illustrations of the Despotism of the Rulers. — Moreover, when they were not concerned in Furthering some base interest, the rulers began to gratify their individual whims and caprices in defining oft'enses and in fixing the penalties. " Superiori nihil impossibile " is the statement of Brunnemann, when advising the utmost extremity in threatening punishments. The " Constitu- tiones Saxonicse " (1572) ^ no longer regarded the limitation im- posed by the Carolina upon the introduction of new crimes into the law. Blumlacher, in the preface to his commentary upon the Carolina, makes an express statement in regard to this : " Hodie cjuilibet Princeps in territorio dicitur esse Imperator." ' In 1710, by an ordinance of the Elector of Hannover, mistakes of masons and carpenters whereby danger of fire could arise were punishable by imprisonment at hard labor in the galleys for life. By another of these ordinances in 1726 a negligent bankruptcy was punishable with the galleys, and a fraudulent bankruptcy with life im])risonment.^ However, judicial practice 2 Cf. Leyser, "Sp.", 575, n. 2, concerning the trial of the unfortunate Baron Görtz. executed in Sweden. ^ Leyser, "Speculum", 571 n. 55, 56. '' Ibid., 575, n. 5, speaks of the peculiar practice of questioninf; of the Faculties concerning the punishment of ministers. 5 Ibid., 570. * For example, the old Saxon law in respect to rape was restored, and theft was punished hy new rules. Cf. IV, '.M, '.Mi. ' This unlimited power of legislation was l)ased upon the provisions of the Peace of Westphalia. Cf. J. U. A. § 171, Verb. "Demjenigen nach- gelebt werden soll, was" etc. * The edicts against the gypsies are also notable. They were by im- 231 § 50] THE RENASCENCE AND THE REFORMATION [Part I, TiTLE III soon began a successful opposition to ordinances of this char- acter. The power of the rulers manifested itself not only in autocratic legislation, but also by interfering in the trial and decision of individual cases. Already in the Italian jurists ^ was to be found the principle that the sovereign " ex plenitudine potestatis " not only can remit penalties but also can inflict penalties and correct errors in judicial decisions, and that in so doing he is not bound by the ordinary rules of procedure.^" Thus, while increasing limitations were being placed upon the right of the judges and the lords of inferior courts to remit punishments, and the modern pardoning power of the rulers was being developed, there often came about in the several States an expansion of the power of the rulers in the matter of increasing punishments. In Branden- burg, and later in the Kingdom of Prussia, the ruler became the regular source to which appeal was taken for the review of criminal cases of a more serious character, and to which all the appropriate proceedings had always to be submitted.^^ It is easy to see how this often led to perverse, albeit well meant, decisions.^- The judges, moreover, in accordance with the Roman traditions, gave broad support to the right of the " Princeps " to proceed of his own motion directly against those who were enemies of the country and therefore also against enemies of its rulers, — just as had been done by the possessor of the Roman sovereign power, against those guilty of " perduellio." ^^ § 50. Abuses of the Criminal Law. — It is therefore not sur- prising that, in certain cases, the old idea of regarding the right perial law declared to be without rights ("Polizeiord. 1577", tit. 28). According to an Edict of Frederick William I of Prussia, Oct. 5, 1725, gypsies who were found in the country and were over eighteen years of age were mercilessly punished on the gaUows. " Cf. e.g. Bossius, tit. "de homicidiis", n. 97 ct seq. The maxim how- ever is older. Kress, "Comment.", Art. 99, § 3, infers that where a judge has passed too lenient a sentence, he can apply to the "princeps" to have it corrected. ^" Often during the 1700 s the judgments of the faculties were drawn in form of ad\aces to the princes, especially if the statutory law seemed to the "Collegium" to be too severe. " Cf. Hälschner, "Geschichte", p. 141. 12 CjT. Fichord, "Teutsche Rathschläge", cons. 70, n. 11 et seq. "In eonsistorio principis non requiritur ordo processus"; a maxim which however here referred only to the emperor. '^ Reinkingk, "De regimine sfec", 1, 2, c. 12, n. 35; Pufendorf, "De jure nat.", VIII, c. 3, § 33: "aliquando absque ambagibus processus ab executione fieri initium queat" ( !). Cf. also Lcyser, "Speculum", 641 n. 12, 646 n. 7, who relies upon L. 16, § 10, D. "de poenis", and in extreme cases approved of putting to death with poison ( !) 232 Chapter VIII] GERMANY IN THE 1500 S AND 1600 S [§51 of administering justice as essentially a property right led to some infamous compromises for the suppression of justice. Thus, when von Hoym/ the President of the Exchequer of Electoral Saxony, who had been guilty of numerous briberies, embezzlements, instigation of money frauds and extraordinary extortions against his tenants, was prosecuted, with much display in 109.3, he got oft" with paying to the Elector the sum of 200,000 thaler ; the alleged offenses were as good as proven ; an apj)lication of torture had procured from von Hoym a confession ; but the poor tenants never got any redress and he was reinstated in all his old digni- ties.2 Carpzov ^ breaks out in complaints against the evil judges of the lower courts (and of the higher courts as well) who make a business out of inflicting fines and are not ashamed to say in public : " Well, God be praised, the ledger makes an excellent showing this year in offenses and fines." As late as the end of the 1700 s there was a small principality (which fortunately has long since been mediatized), in which a court commissioner travelled about for the purpose of extorting high money fines by instituting absurd prosecutions for adultery,'' so that the homes and estates of many people were sold at auction to the court Jews. Ultimately this vnibelievably scandalous practice was energetically suppressed by the Supreme Court of the Empire.'^ §51. Scantiness of Legislation. Evasion of the Carolina; Berlich and Carpzov. — However, along with this insincere and r might show that he possessed the privilege of "Blood l)aii." (\f. Olilvhop, "Observ. crim." V, 19: "Vae tibi (pii lioc modo jura jurisdictionemque tuam tueri desideres et actum peri inii>erii." (hnelin ("(irundsiitze über Verbrechen und Strafen", 1785, p. 292) relates that it was reported to Inm that a nobleman in opi)osition to the opinion of a law faculty caused a prisoner to bo hanged in order to demonstrate his possession of the "Blood ban." 233 § 51] THE RENASCENCE AND THE REFORMATION [Part I, Titmo III of the Courts and law faculties were gradually acquiring an influ- ence, in mitigating the cruel piuiishments ^ and in making criminal justice serviceable to the well-being of the public at hirge.'' As 2 In the 1600 s the administration of criminal law, reflecting? the condi- tions of the times alternately varied V)etween barbarous severity and an almost inconceivable leniency and a tacit immunity to the most notorious criminals when they later ceased their criminal activities. In this respect, see the information gathered by Niemeycr, from the acts of the Han- noverian court of Meinersen, "Ueber Criminal verbrechen, peird Strafe und deren Vollziehung bes. aus alter Zeit" (Lüneburg, lS24j, pp. (31, 02, 104. At the end of the 1500 s, justice was dealt out, in Meinersen and vicinity, with severity in accordance with the Carolina. During the period between 1618 and 1660 grave crimes such as theft and even murder were punished only ^\^th banishment, church penance, and money fines. On. the other hand, little scruple was often shown in the sentence and execu- tion of death penalties ; e.g., the officials in Meinersen considered it re- markable that a messenger who was to bring three death sentences from the Helmstädter Faculty was obliged to wait two days and brought back only two death sentences. Often the messenger on the same day on which he transmitted the record would return with the death sentence ! {Niemeycr, p. 116.) Concerning the revolting cruelty (occasionally shown in Hannover) inflicting death by flies, wasps, ants — of. Freudentheil, "Beilageheft zum N. Archiv des Criminalreehts", 1838. On the other hand, humorous features were not entirely lacking. Occasionally, for the sake of a better admonition and education in the case of the execution of punishments, certain of the spectators were also, \\ath the general approval of the public, cudgeled. Thus the officials in Meinersen, where a son had mur- dered his father, caused a number of grown up sons of peasants, after view- ing the execution of the offender, to be themselves cudgeled. Niemeycr, p. 121. ^ In the mitigation of punishments there long prevailed the influence of the ancient legal conceptions. E.g., even in the 1600 s the request of a "puella" to marry the offender was recognized as a ground for not carry- ing out a death sentence and for commending the offender to the pardon of the lord of the land. In this wa3', especially in cases of adultery, death sentences were often avoided. Cf. Carpzov, II, qu. 88, n. 25. Many later WTiters, failing to recognize the original meaning of the term, limited this rule to the request of a "meretrix" ( !) because she would thereby be enabled to live an honorable life. Cf. contra, Carpzov, II, qu. 88, n. 25. Mitigation might also be given for special ability of the offender in his art, trade, or profession {cf. Carpzov, 1. c. n. 62); the "Codex Max. Bavaricus" felt it necessary to specially repeal this as a mitigating cir- cumstance. The intercession of others was also regarded as a ground for the interposition of the pardon of the ruler. Fichard, "Teutsehe Rath- sehläge", cons. 121, because of the intercession of the entire community and because the offender was one "Ansehnlicher von Adel" (having the appearance of nobility), changed to banishment and damages a sentence to death by the sword. Use was also made of the pro\'isions of the later Roman law, in individual eases, to exempt persons of the higher rank from punishments involving life or limb. Thus, in 1611, an academic Council set up the principle that a student, who had committed theft, should be spared, since he was "angesehener Leute Kind", from under- going the death penalty otherwise entailed by theft. {Cf. Leyscr, "Sp.", 532, n. 15.) The University of Leipzig in the 1600 s availed itself of a special papal privilege whereby students of Leipzig were liable, for "homi- cidium", only to life imprisonment and for theft, only to banishment. The electoral Saxon legislation felt it necessary to abolish this and es- pecially that part referring to manslaughter, since it was contrary to 234 Chapter VIII] GERMANY IN THE 1500 s and 1600 s (§51 a matter of fact, the judicial assumption of such powers was fcjrced upon the profession by the inactivity in legislation. The legis- lation of the various States merely furnished solutions of single points (at most of doubtful value), and the imperial legis- lation, after the enactment of the Carolina, almost completely abandoned the field of criminal law. We encounter nothing other than a few provisions relating to blasphemy, wanton oaths, and profanity,* and sundry police regulations having to do with the trades and professions, luxurious living, etc' A draft was made of an imperial statute to check the increasing excesses of duelling ; '' this draft, which misguidedly treated the principals as guilty merely of ordinary manslaughter and their seconds as accessories, was not enacted as an imperial statute, but was given effect either by the local law in various States or by the so-called " Duell- mandaten ", which were based upon the same defective principle and were out of harmony with public sentiment.^ Absolutely nothing was done by imperial legislation, and extremely little by local legislation, towards substituting other penalties for the punishments by mutilation which were so much used in the Carolina and which gradually fell more and more into disfavor. Little was done by legislation towards lessening the number of the simple and aggravated forms of death jienalties which were so frequent in the Carolina. The judges felt them- selves obliged to evade the statute. This tendency undermined divine command. Cf. Ziegler, "De juribus majestatis", Lib. I, o. .'>, n. 26, 27. Presumably there was some connection between these privileges of the University and the old "benefit of clergy." Carpzov, II, qu. 02, n. 20 et seq., was of the opinion that the benefit of clergy in Protestant countries could no longer be recognized because of the transfer of the jurisdiction to the civic authorities. "Transactio" (i.e. settlement) with the party injured was also for a long time given force in mitigation. Even Carpzov, II, qu. 80 n. 11 ct seq., was of the opinion that "transactio" did not exclude prosecution by the authorities, but that it precluded the "pcena ordinaria." Later, "transactio" was regarded merely as a ground for mitigation of tlie punishment by commendation to the pardon of the ruler. The view that "transactio" does not preclude public punishment is to be found in Oldc- kop, II, qu. 1. Also cf. n. 23 el seq., of the same in regard to the many abuses resulting from "transactio." * R.P.O. of 1577, Tit. 1, § 2, Tit. 2 and 3. * Concerning such matters, the Imperial police regulations contained quite extensive provisions. As to this and the i)articular provisions there- with concerned, cf. Elben, "Zur Lehre von der Waareiifälschuiig" (1S81), pp. 52 et seq. ^ Imperial opinions, July 1608, confirmed by imperial d(>cree of same date. '' Cf. especially Heffter, "Lehrbuch des gemeinen deutschen Straf- rechts", § 370. E.g. "Braunschweig-Lüneb. Duell-Edict" of 1087. 233 § 51] THE RENASCENCE AND THE REFORMATION [Pakt I, Title III the respect for the statute and ultimately led to almost complete liberty of discretion in penalties. And it spread notably as soon as the Carolina began to be treated, not as a more or less popular abridgment of the Roman-Italian law, but rather as a code whose principles and their deductions were to prevail ov'cr those of the Eoman-Italian practice in case of conflict. Berlich and Carpzov. — This last-mentioned method of deal- ing with the Carolina is especially noticeable in the writings of the Saxon jurists, ]\Iatthias Berlich ^ and Benedict Carpzov.^ These jurists first gave an independent position to German crimi- nal doctrine and practice by the citation and discussion of the native German law and the numerous decisions of the Saxon courts, especially of the Leipzig Bench of " Schöffen." Carpzov's work, in spite of the attacks of his contemporary, Oldekop,^" exer- * Berlich, "Conclusiones practicabiles", I, qu. 20, n. 32: "Et certe in delictis atque poenis dictandis magis ad Ordinationem Caroli erimin. quam ad definitionem juris civilis respiciendum est. Prccdicta enim ordinatio juris communi derogate This work appeared first in the years 1615-1619. As to Berlich, cf. Stintzing, I, p. 736. ^ It cannot be maintained that Carpzov, in respect to the general theory of criminal law, marks an advance in comparison \\'ith the Itahan writers. He ranks rather lower than Bossius and Clarus. German legal doctrine is merely indebted to him and to his predecessor Berlich for a certain independence. ("Nisi BerUeh berlichizasset Carpzov non carp- zovaasset ! " ) Carpzov's stri\ing for candor and his love of justice are everywhere apparent ; it is incorrect to charge him with extraordinary severity. (Cf. e.g. Ill, qu. 116, n. 11 et seq., concerning the cruel, irra- tional system of justice and its greed for money; also III, qu. 123. n. 20 et seq., concerning the judges' independence of the orders of the ruler.) But he is entirely lacking in the matter of form and arrangement. As a bigoted adherent of the theological legal traditions, he regarded the Mosaic law as "jus divinum ", having precedence over the law of the land. {Cf. Ill, qu. Ill, n. 59.) He also gave broad scope to the crime of heresj-, and indulged in a most absurd discussion of sorcery. He also often con- fused proof with substantive law, and the legal with the moral valuation of an ofl'ense. His theory of "crimina excepta", i.e. certain very grave crimes in which the usual fundamental maxims concerning proof and jus- tification should not be regarded, is very specious. It was however shared by many others. {Cf. as to Carpzov, especially J. S. F. Boehmer, "Praefatio ad Bened. Carpzovii practicam.") Carpzov, born 1595, died 1666, was Professor and "Ordinarius" of the Leipzig Law Faculty and of the Bench of "Schöf- fen." It is said that he pronounced twenty thousand judgments of death. His famous "Practica nova Imperialis Saxoniea rerum criminahum" first appeared in 1638. " Oldekop, born 1597 at Hildesheim, had decidedly a subtler mind than Carpzov. As a free-thinker he had serious doulots about the justice of the witchcraft procedure ; even at this early period, he offered the true explanation of the strange confessions made in such cases. He had a better knowledge of the Roman law, and had more respect for statute law, and he contended justly against the numerous arbitrary and ill- founded decisions appearing in Carpzov. However, he had less knowl- edge of and paid less attention to the native law, and for this reason he 236 Chapter VIII] GERMANY IN THE 1500 S AND 1600 S [§52 cised a predominating influence over the German practice for nearly a century.'^ § 52. Recognition of the Principle of Mitigating Circumstances. — The evasion of the Carohna was first accompUshed hy the introduction of numerous grounds for mitigation of punishments. Already the later Italian practice ^ had permitted the judge to inquire whether the legislator, although the concrete case might fairly be within the general provisions of the act, had exactly such a case under contemplation. The more the harsh penalties of the Carolina, e.g., death penalties inflicted for the violation of a mere property right, came to run contrary to public sentiment, the more these grounds for mitigation were recognized. To be sure, they often strike us as very strange, reminding us of the reasoning of the old judgments of guilty with recommendation to the grace of the ruler.^ Rise of Imprisonment as a Penalty. — In such deviations from the statutory penalties, the judge exercised a free hand. One consequence was (and here the maxim " Salus reipublicse suprema lex esto " came more and more to be applied, especially after Pufendorf), that sentences of imprisonment in penitentiaries (workhouses) now came into vogue.'^ These institutions does not have Carpzov's historical significance. ("Observationes erim. u. contra Carpzovium Tractatus.") 1' In eastern Germany, Brunnemann'' s "Tractatus de inquisitionis pro- cessu" (first printed in 1648) was highly but undeservedly esteemed. He was Professor in Frankfort and died in 1672. There is absolutely nothing original in this bigoted Protestant jurist. In the crudest manner conceivable he continually confuses the functions of the judge and the legislator; and his juristic arguments are often simply nonsensical. ' Cf. e.g. Deciantis, "Pr.", VIII, C. 14. Also M yn.singer, "Oliserv." II, 30, infers that the judge generally has the right to change the punish- ment, even if a "poena certa" is fixed by the statute. - In a judgment of the Faeultj' of Tül)ingen, a reason for mitigating the sentence was that the father of the offender, guilty of pillaging, through the punishment of liis son "would be plunged into great tribulation." In Carpzov, II, qu. 80, n. 100 are mentioned, as reasons for mitigation, the plight of the offender's wife, and his young children still dependent, and his promise of compensation. 3 A workhouse was erected in Berne in 161.5. in Basel in 1667, and in Celle 1710-17;U. Cf. Wnguitz. '•Historische Nachricliti'n unci Bi-iner- kungen über die merkwürdigsten Zuchthäusi>r in Deutschland" (17!»2), II, pp. 143, 229. In Netherlands they had "ergastula nautica" which, as stated by Damhouder, were often far more feared tluin tortun- and the death penalty, and of which Dnmhoudvr, "Pra.xis rer. crim." C 151. draws a terrible picture. Besides con\icted criminals, there were sent here vagabonds, persistent lieggars, and even reprobate sons at the instanco of their parents. However, as Damhouder renuirks, the i)eo|)le there confined for the most part liecame worse (n. 24). dreat severity of treat- ment alternated with an easy-going regimen of pleasant ease (card-playing, etc.) in the "Popina." On the other hand, Damhouder, "Praxis", 110, 237 § 52] THE RENASCENCE AND THE REFORMATION [Part I, Title III had been erected, since the })eginninf^ of the HiOOs (first in Lübeck in 1613, and in Hamburg in Kilo), i)rimarily as a poHce measure, for the reception of unemployed vagabonds. Originat- ing in the cities of the Netherlands, they found increasing approval and wider imitation.'^ Sentences to " opus publicum " ■' were also imposed (for which authority could be found in the Roman law), i.e. to the building of roads, fortresses, castles and manor- houses, to military service against the Turks,® and even to labor on the Venetian galleys. The treatment of the prisoners in these institutions varied greatly, and the sentences of the judges were thus indefinite in their consequences. Originally, the rasping of foreign dyewoods was the most usual occupation for prisoners.^ On the other hand, the discretion of the judge might at any time resort again to the old punishments by mutilation.^ These did not completely disappear until the beginning of the 1700 s. In the first third of the 1700 s, cutting off the hand (in certain cases) is the only remaining punishment of this character.^ More- n. 59 makes mention of a beneficent school in Bruges for beggars and other despised persons. Concerning the erection of penitentiaries and workhouses in the Duchy of Holstein during the period 1730-1740, c/. Von Warnstedt, "Zur Lehre von dem Gemeinde- Verbänden, kritische Beleuchtung eines Rechtsstreits" (1878), pp. 30 et seq. ^ Theod. Reinkingk, "De regimine saeeulari et ecelesiastico", II, 1, c. 7, n. 6 recommends the establishment in each province of workhouses for beggars, vagabonds, and idlers. Cf. also Pufendorf, "De jure naturae et gentium", VIII, c. 3, § 4. 5 Condemnation to "opus publicum" at the beginning of the 1600s. Cf. Sande, " Decis. Fris.", 5, 9, dec. 3. ^ Cf. e.g. Reinkingk, II, 1, e. 8, who describes this as the "optimus rele- gand imodus." Opinion of the law faculty of Tübingen in 1697 in Harp- precht, "Consilia", I, 1, n. 139; also condemnation to twelve years mili- tary service against the French, Harpprecht, 53, n. 64. '' Cf. concerning the workhouses in the 1600 s, especially Krausold, "Miracula S. Raspini", (Merseburg, 1698) ; who on the authority of Tabor draws a gloomy picture of the workings of the "Triga", i.e. the gaUows, public flogging, and banishment ("indurati homines his . . . poenis non emendantur, sed efferuntur potius ut excandescunt"), and complains that in spite of these cruel punishments, the country was infested with bands of robbers and life and property were not safe ; as a substitute penalty he recommends rasping houses [i.e. where the prisoners were obliged to rasp wood used in dyes]. Cf. also ibid., pp. .52 et seq., and the " Ordnung" of the Hamburger House of 1686. Such pictures are instructive, in view of certain theories obtaining at the present time. ^ Lauterbach, "Collegium theoretico-practicum", 48, 19, n. 10 (Tü- bingen 1690, et seq.) declares himself decidedly opposed to corporal and rnutilating punishments. Kress, "Commentatio succincta in Constitu- tionem Criminalem Caroli V" (Hannoverre, first ed., 1721), points out that the putting out of eyes was plainly no longer an effectual penalty. Boehmer, "Meditationes in Constitutionem Criminalem Carolinam" (1st ed. 1770), 112, § 1, observed that cutting off the ears was made use of only in the case of deserters. ' Cf. concerning a penalty of cutting off a hand inflicted in Oldenburg 238 Chapteu VIII] GERMANY IN THE 1500 S AND 1600 S [§ 52 over, after the end of the 1000 s, the punishment of banishment (for the State's own subjects) came more and more into disfavor.'" Public flogjiinp: was gradually replaced by imprisonment " and by corporal punishment not public. The numerous forms of death penalty were slow to be repudiated.'' Eminent jurists,''^ however, protested against the indignities which in earlier times were often inflicted upon the corpse of the offender; Carpzov relates that even in his time the death penalty had in many cases been supplanted by life imprisonment. Change in Law of Proof. — Another field for unlimited judicial discretion was the laiv of proof . The Carolina '^ had provided that a conviction was not to be based merely upon circumstantial evidence. However, some Italian writers had advanced the opinion that since in the " extraordinaria cognitio ",'■' the judge was not bound by the rules of the " judicia publica " ; and since in that " cognitio " he might inflict a " poena extraordinaria ", so he was also permitted, in a case where the proof was not con- clusive, to inflict a " poena extraordinaria " ; this, however, was less than the " poena ordinaria " and could not consist of a death penalty.'^ To harmonize this view with the provision of the Carolina prohibiting the infliction of criminal punishment upon mere circumstantial evidence, that provision was deemed to aj)ply only to graver offenses in which torture could be applied and thus sure proof by confession could be obtained.'" But even this hist as late as 1714, Leyser, "Speculum", 604 n. 3, and concerning: a Mecklen- burg ease of this character in 1731, cf. n. 22 of the same. '" As to the evils resulting from l)amshment, cf. licinhinglc, 1, c. II, c. 7. " In Herlich, "Concl.", V, 57, n. .">, can be seen the more frequent use of "carceratio" in the less serious of the graver offenses, and as early as 1617 a Wiirtemburg ordinance suhstitute(l for corporal puiiislinieiit the punishment of "opus publicum." In Hannover, pul)lic Hogging and the pillory were abolished in 1727. Kress, Art. 19S, § 4 n. 1. '- From the philosophical viewpoint attacks were made upon capital punishment as early as Carpzov. Cf. Carpzov, "Pr." 111. qu. 101, n. 26 et seq. ^^ Cf. however, the hesitating arguments in Carpzov, "I'r.". Ill, (pi. 131, n. 32, et seq. '•> Carolina, 69, 22. 1^ [For thes(> terms of criminal procedure, see Esmcin, " History of Con- tinental Criminal Procedure," transl. Simpson, in the present Series, passim. — Ed.] '" Cf. Julius Clams, § fin., qu. 20, n. 4, el seq. Another well-known application of the distinction between "ptrna ordinaria" and "pcvna extraordinaria" was made when the inquisitorial i)ro<'e(lure was first in- troduced. At first this procedure was to result only in a"po'na extraor- dinaria." Cf. Bicner, "Beiträge zur (leschichte des Inquisitionsprocesses". p. FA. '" Cf. Bcrlich, IV, 15 n. 8, IV, 16 n. 11, V, 46; Carpzov, 111, qu. 11(>. 239 § 53] THE RENASCENCE AND THE REFORMATION [Paut I, TiTLK HI limitation was soon no longer observed. In all cases where the judge was " morally " (i.e. actually) convinced of the guilt of the offender, but there was an absence of the technical legal proof, i.e. a confession, or the testimony of eye-witnesses, he sentenced the offender to " extraordinary " punishment, or as it was later called, "suspicion" punishment ("Verdacht- strafe ").^^ This measure was used in cases where, though the commission ^^ of the act was proven, some one of the elements of the crime was not proven legally or even proven in any sense, e.g. the live birth of a new-born child said to have been killed by its mother.^*^ § 53. Doctrines as to Judicial Discretion in Defining Crimes. — In the case just considered, an act was punished which the statute did not in any way make amenable to punishment. But, further- more, in pursuance of this tendency, acts came to be punished which were not even reached by any specific definition of a crime, but were in the personal view of the court deemed to merit pun- ishment ; and this judicial extension of analogies was carried to a pitch nowadays incomprehensible. For example, Kress ^ (who more than any other of the writers on criminal law prior to Feuer- bach w^as careful to abide within the statute) , in classifying offenses into crimes against the law of nature and offenses which merely contravene positive law, proceeds to observe that for the former the criterion is the " sana ratio " rather than the " variantes formulse juris civilis." And although Leyser - in one place com- plains about the arbitrary reasonings of the jurists who decide cases not according to the statute but according to their indi^•idual views as to the propriety of the statute for the case under consider- ation, yet, when he comes to other cases, he proceeds in the same manner as those whom he censures,-^ or else he concedes the author- is C/. "Codex Maxim. Bavaric Crim." I, C. 12, § 11. In Electoral Saxony the "Verdachtstrafe" had obtained statutory recognition at an early date. "Const. El. Saxon." 33, p. 4. Cf. Carpzov, II. qu. 81 n. 13. However, many had raised sound objections against the propriety of this "suspicion punishment." But practical need carried the day in spite of its incorrect theoretical basis. Cf. Carpzov, III. qu. 142, n.'3 et seq., L. 6, D. "De accus." 48, 2 was also i-elied upon. C/. Carpzov, III, qu. 116, n. 51; Leyser, "Speculum", 630, n. 11. ^^ Sande, "Deeis. Fris." 5, 9, defin. 3. 20 Cf. Boehmer, " Meditationes in C.C.C", 131 § 55, who here punishes simply for "srevitia in cadaver commissa." ^ Kress, "Commentatio succincta in Constitutionem Criminalem Caroli V" (Hannoverae, 1721), 112, 113, n. 2. 2 "Speculum", 537 n. 22. 3 Cf. Halschner, p. 163. 2-40 Chapter VIII] GERMANY IN THE 1500 S AND 1600 S [§53 ity of custom (" usus ") to correct the shortcomin<;s of the statute. Boehmer, who without doubt was the most important German writer on criminal law prior to Feuerbach, is of the opinion that, since " salus reipublicfe " is the supreme guiding principle for interpreting individual statutes, and is even, where the circum- stances demand, superior to the statute, it is permissible to ex- emplify this doctrine with offenders.' He believes that no penalties are unconditionally prescribed by the statute. " Augent, secant, temperant jurisconsulti " ; even death pen- alties may be imposed where the statute speaks only of a " pcena arbitraria." '' Consequently there is nothing surprising in a judgment ren- dered in 1721 by the Faculty of Helmstadt with Leyser's approval. A man charged with manslaughter pleaded self-defense, and the case involved considerable doubt because the records of the pro- ceedings were in another State and could not be obtained ; the decision was that " in order to protect the community from this dangerous individual ", he should be confined in a penitentiary or some other well-guarded place at moderate labor for the rest of his natural life. Nor are we astonished that Boehmer, even in cases of a complete acquittal after an inquisition (where the torture was successfully undergone or the accused was put to his oath of innocence), favored confinement in an " ergastulum pro- batorium." Analogies which from our viewpoint are simply impossible were resorted to in order to punish acts which seemed morally reprehensible or likely to be dangerous.^ Where the power of the judiciary was so absolute, partialit,\- was sometimes shown in the judgments. Often persons of higher * " Meditationes in C.C.C", Art. 105 § .3. As to increasing the penalty, see Ziegler, "De juribus majestatis" (1681), I, c. 6, n. 13. * Berlich, IV, 15, n. 0, was, however, of a different opinion in regard to "prena arbitraria." In accordance witli the common hiw he would recognize only "pcxMia pecuniaria" and ])anishment. According to ('lunts, § fin., qu. 83, n. 11, a "poena arbitraria" should at least never amount to capital punishment. « Such decisions may be seen in Berlich, IV, 3G, n. 30. A prison guard who had got with child an imprisoned maid-servant and lied with her after she had destroyed her child, was without hesitation sentenced to death by the sword; and the same sentence was impttsed on the girl. The "apponere scalas ad fenestras" was undi-r certain circiunstances to be punished with d<"ath, IV, n. 20. Improprieties were punished under the title of "Stellionatus" (Carpzor, III. qu. 133. n. 2, d seq.). Thus, m 1()95, the Faculty at Tübingen unliesitatiiigly puuisiied a man for mere failure to keej) ä jjromise. Ilarpprcrht, "Consil." 47. Lcifscr, "Specu- lum", 581, n. 8. considers th(> death penalty as legally justifiable against one who seduced the daughter of his master. 211 § 53] THE RENASCENCE AND THE REFORMATION [Paut I, TiTLK III rank received, on some pretext or other, light sentences for crimes that were really brutal. At times the judges seem to havx- abso- lutely lost all conception of the gravity of the crime.' ' Cf. e.g. Harpprecht, "Consil." I, n. 139, and see the same for a decision of August 19th, 1681, by which a bold highway robbery was punished with only a few months compulsory labor. In another passage the Faculty consoles itself with the reflection that divine justice must have overtaken the individual subjected to torture where he loses his life. In another case they regarded the death penalty as not unreasonable, because they did not perceive "how the young offender, who had neither father or mother, could have been saved from complete ruin of body and soul." Harpprecht, "Consilia", I, 100. 242 Chapter IX GERMANY IN THE 1700 s § 54. Emaneipation of the Law from Theology. Suppres- sion of the Witeheraft Trials. Doctrine of the Law of Nature. Progres- sive Jurists ; Kress and Boehmer. § 55. Influence of the Universities. Early Treatises. The New Theories of Criminal Law in Italy and France. §56. Legislation of the 1700 s. The Bavarian Code of 1751. The Austrian Theresiana of 1769. The Statutes of Fred- erick II of Prussia. § 57. The Austrian Code of Joseph II of 1787. § 58. The Prussian Landrecht of 1794. § 59. The Austrian Code of 1803. § 54. Beginnings of a Change. Gradual Suppression of Witch- craft Trials. — But whik' at the end of the KiOO s the judicial power was continually encroaching upon the legislative, and the practice was becoming more arbitrary, yet on the other hand, during this period and at the beginning of the 1700 s, a distinct improvement in other features was noticeable. In the first place, enlighten- ment began to dawn in the \"iews upon the prosecution of witch- craft ; and when we contemplate the former monstrosities, this is a service to humanity that can not be too highly estimated. Special mention should here be made of the Jesuit Friedrich von Spec ^ and of the valiant efforts of the indefatigable jurist Tho- masius.- Kress had already asserted, although rather guardedly, that it was difficult to accept witchcraft as possible.'' Hoehmer, • "Cautio eriminalis s. de proeessu contra sagas", first puhlishod in 1631. * Cf. particularly, "Vom Verbrochen der Zauberei" (1701, 1702). ' "Casus si (labitur, resi)c)ii(I(l)itur." "Comment.", Art. 44. Judicial practice came to be more exacting in the acceptance of proof, especially proof of the injury. CJ. Wächter, "Beiträge", p. 301. The cautious Levser however would not absolutely disavow the possibility of niagio ("Speculum", 608). 243 § 54] THE RENASCENCE AND THE REFORMATION [Part I, Title III by the middle of the 1 700 s, treated tlie entire proposition as a dehision.^ Emancipation from Theology and the Mosaic Law. — All throuf^li the eriminal law we find the unwholesome influence of tlieology gradually eliminated ; and here, too, we see the fear- less Thomasius (the practical value of whose work is to-day entirely too little appreciated) effectively joining in the contest with his numerous minor writings. The separation by the legal philos- ophers of the Mosaic law into two parts, of which one was of uni- versal obligation and the other of special application only to the Jewish peoples, was now also recognized by the writers on criminal law, in the sense that they referred the penal provisions to the category last mentioned and held that for the present times they had no application. Ultimately, legal theory no longer gave any attention to the Bible. The criminal law w^as rested simply upon the advantage or the necessity of punishing a wrongful act. These principles were finally made popular, and gradually brought into currency with practical writers on criminal law, by Beccaria's famous book, of which mention will be made later.^ This divorce of law from theology led to a recognition of the impropriety of the persecution of those of another religious faith. ^ A milder treatment ensued for offenses allied to religious belief, and also for unchastity, so far as the latter did not also constitute a violation of the rights of others. Another consequence was the attempt to draw a line between wrong in the legal sense and im- morality, and to reserve the former alone for the criminal courts ; though here it was often forgotten (as is natural in such revolu- * "Meditationes in Constitutionem Criminalem Carolinam" (first published in 1770), 109. ^ Cf. e.g. Reinkingk, "De reg. saee.", II, 2, c. 2, especially § 5; Sande, "Deeis. Fris.", 5, 9; Leyser, "Speculum", 577, n. 20, and as marking the conclusion of the development, cf. Engau, "Elementa juris crim." (5th. ed., 1760) § 3, who absolutely denies the juristic obUgation of the Mosaic Law. ^ As opposed to the punishment of heretics, cf. especially Ziegler, "De juribus majestatis" (1681), I, 16. Nevertheless, for the spreading of dangerous opinions "propter scandalum", he declared banishment was permissible (n. 10). Cf. also Frälich v. Frölichslichsbiirg, II, 1, tit. 4, § 4, who argues that the "flebile beneficium emigrationis", belong- ing to the adherents of the Augsburg Confession in accordance ^^^th the Augsburg decree § 24, belonged also to the Reformers after the Peace of Westphalia. Leyser, "Speculum", 566, in such a ease hniited the right of the authorities to banishment. However, he conceded the compulsory imposition of religious instruction, to the end that where possible the party in question might be rescued from his error. Cf. ibid., a decision of the Wittenberg Consistorium, to which Leyser gave his appro^■al. 244 Chapter IX] GERMANY IN THE 1700 S [^ TA tions of opinion) that law has its basis in morahty and also that the violation of an individnal right is not invariably an essential of a violation of State security in the objective sense. Effect of Doctrine of Law of Nature. — Furthermore, as a con- sequence of the rise of the doctrine of a Law of Nature, human nature was now taken into consideration. An act which is merely the result of a strong natural impulse,^ if not in direct violation of the rights of others, no longer ajjpeared to be a crime. The psychological analysis of crime gradually began to be made, and offered a foundation for a general theory of responsibiiit\' ; for it led to the reflection that the offender has not imariably enjoyed that freedom of action which a legal system permeated by the idea of eternal perdition had assumed to exist. The doctrine arose that unless the criminal had acted with moral freedom ^ he should not undergo the full penalty of the law. This led to numerous further inconsistencies (later criticized by Feuerbach), and another basis for discretionary variance of decision was thus created. Signs of Progress. Kress and Boehmer. — Along with these elements, tending both towards a breaking down of the old law and a progress to a better system,^ it is notable that legal science in Germany began to avail itself of more amjjle sources and methods. The Hollander, Antonius IMatthneus,'*^ in his Com- mentary upon Books 47 and 48 of the Pandects, had indeed suc- cessfully undertaken to interpret the Roman criminal law in its native spirit, without foreign mixture and under the guidance of the Roman literature. But, on the other hand, the knowledge of early German sources of law, which had been graduallx- accumu- lating since Conring, began to exercise an influence upon tiie method of dealing with the criminal law. This can be clearly seen in the excellent commentaries of both Kress " and Joh. Sam. Friedr. von Boehmer,^^ the latter marking the zenith of German ^ Cf. e.g. Kress, "Commentatio sueeineta in Constitutionem Crim- inalem Caroli V" (Hannovonr, first published 1721), Art. ISO. § 8, n. 2; Hommel, "Rhapsodia qiiirstioiuiin ". 441: " Lonofiniiim, incostiis. so- domia, stuorum sind Ict/crcni nicht V('rl)ro('lu'n. sonch'rn nur Unan- ständigkeiten, turpitudines." 8 Conf.erning these theories, wliich hiter were lield parlicularly l»y Kleinschrod and Klein, and which were undisputedly the dominant theories at the end of the 1700 s, rf. Fcncrhach, "Revision der (iruiui- sätze des peinlichen Rechts", I, pp. 274. et .scr/.. pp. 278, 270. " This is to-day frequently overlooked. '" "De criminibus", first published in 1()44. •• "Commentatio, etc." ; see note 7, anlc. '2 " Meditationes, etc." ; see note 4, ante. 245 § 551 THE RENASCENCE AND THE REFORMATION [Part I, Title III criminal jurisprudence prior to Feuerbach. The difference be- tween these writers and Carpzov and the Italians is clearly appar- ent. The position of Carpzov as an authority was completely destroyed by Boehmer's " Observationem zu Carpzov's Practica."'^ § 55. The Universities. — The Commentary form of exposition, hitherto emi)loye(l, now fell into disuse among the jurists, and there began to appear systematic treatises on the criminal law. This was primarily due to the instruction now begun to be given in the universities. During the 1600 s specific courses on the criminal law were not given at the universities. Criminal law received attention only in lectures upon the Roman law, in com- ments on the text of the so-called " Libri terribiles " of Justinian.^ In the first half of the 1700 s, however, criminal law began to be treated as a separate subject, or at any rate in conjunction with criminal procedure.- The Early Treatises. — The first " compendia " of the criminal law did not indeed possess any special scientific value. Of these the one by Engau, " Elementa juris criminalis Germanico-Caro- lini ", appearing first in 1738,^ had perhaps the widest circulation. But the formulation of an independent system always sooner or later leads to an attempt to establish general fundamental prin- ciples under which the individual elements may be classified, and induces a deeper investigation of the subject-matter of the law. The arrangement of a so-called " general portion " in the early " compendi ", although rather meagre, must in criminal law more than in any other legal study have been an important help and inspiration. But the interest aroused was too little concerned with the posi- tive (existing) law. It inquired rather, what the law should be. That compilation which was regarded as the foundation of the common law, i.e. the Carolina, was outgrown, as a penal system, by the advance in civilization and public opinion. The theologi- cal foundation of the Carolina and its now antiquated methods of expression were objects of ridicule. Leyser called it a " monu- mentum inscientise " ; and Boehmer, in the preface to his " Medi- " "Bened. Carpzovii Practica . . . varus observationibus aucta a J. Sam. Frid. Boehmer" (Francof. 1753). ' Von Wächter, "Gemeines Recht", p. 96. » Cf. Henke, II, pp. 166, .306. ' As to other compendiums by Gärtner (1729), Kemmerich, Boehmer, cf. Henke, II, p. 306; Meister, "Princ. juris crim." (first published in 1755). 246 Chapter IX] GERMANY IX THE 1700 S [§55 tationes ", said of the Bambergensis and the Carohna : " magnam spirant simpUcitatem et ipsa compilatio parum saHs in autore arguit." ^ This explains the pecuhar character of the textbooks of this period. Though the statutory law was set forth, it was briefly noted, and then was given no further attention. The writer's views were based usually on any sort of authority whatsoe\er, and always in accordance with the humane tendencies of the times, especially in the sense of placing the greatest possible limi- tations upon the power to punish ; '' as an occasional expedient, reference was made to the undefined power of police control.^ The New Theories of Criminal Law in Italy and France. — \ ct judicial practice instinctively felt that by this emancipation from the positive law, it was working its own destruction. Hence arose the frequent and repeated complaints concerning the evasion of the statutes, made by eminent jurists such as Leyser, Kress, and Boehmer. But (as already remarked) they themselves in other places evaded statutes in the same way. This accounts for the interest displayed at this time in the establishment of a correct theory of the criminal law, which might serve as a basis for a new and comprehensive code suited to the times. The new ideas, emanating from Italy through Beccaria and Filangieri,^ and from France through Voltaire,^ found in Germany a well-prepared and fruitful soil. Thus, at the end of the 1700 s, there began that conflict of criminal theories which has contiiuietl until the present time. The beginning of this conflict is marked by the essay of Globig and Huster, on " Criminal Legislation ", * In order to be correct in one's judgment of such statements, one must bear in mind that it is quite a different matter to treat the Carolina in a purely theoretical and historical manner, as we now do, and to speak of its law. ä Malblank's naive remark concerning the (earlier) writer on criminal law, ISIeister, is well known : "The lamented Meister . . . revealed in his criminal judgments a heart friendly to humanity, and he possessed in a high degree the ability artfully to harmonize his kindly sentiments with the law so that one never perceived a marked deviation from the law and yet he always accomplished his purpose." « Cf. Hälschner, p. 161. ' The Austrian Von Sonnenfels also joined vigorously in tlie move- ment, — especially in opposition to tiie too-fre(iU('iit (h'ath sentences. Cf. his "Grundsätze der Polizei-, Finanz-, und Ilandlungs-Wisseuschafl" (3d ed., 1777, '.i parts). » Voltaire made it his especial task to set forth the injustice done by the inquisitorial procedure of his time; he also vigorously assailed tho theological conception of law and the State. Cf. especially: " Le mupris d'Arras" (1771), and "Prix de la justice et de I'humanite" ("(Euvres", ed. Beuchot, Paris 1832, Vol. 40, pp. ö-lü, et seq.. Vol. öt), pp. 254, ct seq.). 247 § 5ü] THE RENASCENCE AND THE REFORMATION [Part I, Titlk III which received the i)rize offered by the Society of Economics at Bern in 1783. The main thesis of this work was the need of a code which contained a complete and plain formulation of the criminal law, — althou.<;:;h the authors (by one of those curious limitations of vision frequently recurring in history) maintained also that any doctrinal interpretation of the code by jurists would be superfluous and injurious. § 56. Legislation of the 1700 s; the Bavarian Code of 1751. — In the meantime, there had already been considerable legislative activity in three of the most important States. Bavaria and Austria had received comprehensive codes, — Bavaria, the " Codex Juris Bavarici criminalis " of 1751, and Austria, the " Constitutio criminalis Theresiana ", of December 31st, 1769;'^ and Prussia had made reforms in several special statutes. Both of the Codes gave evidence of a considerable advance in juridical and technical aspects. The Bavarian Code contained numerous definitions,- the work of an able jurist, KreitmajT, which were in favorable contrast to the prior crude method of framing the laws. The introductory and final sections of the first part formed a so-called " general part " in the modern sense, although admittedly a defective one. Punishments by mutilations were abolished.^ Witchcraft, how- ever, was still copiously dealt with ; notorious heretics, who " do knowingly utter, support, and stiff-neckedly maintain opinions contrary to the articles of the Christian Catholic faith " were to be punished, either by permanent banishment or by imprison- ment on scanty rations, until such time as they acknowledged and abandoned their errors. Those wdio zealously spread heret- ical doctrines, or misled others, or incited them against the authorities, such seducers of the faithful were to be executed with the sword and their bodies burned upon a funeral pyre. The pro- visions against poaching were very severe. In several provisions the doctrine of the 1700 s, of the absolutism of the ruler, still receives emphasis ; e.g. any contempt, actual or apparent, of the command of a ruler is in itself a capital offense.^ ' Both deal also with criminal procedure. Cf. especially Berner, "Strafgesetzgebung", pp. 8, etc. 2 Cf. the provisions as to attempt, I, 12 § 3 ; Instigation, I, 12 § 5 ; Abetment, I, 12 § 5. 'I, 1, § 8. Branding with, a hot iron, the pillory, and flogging were retained. ■• c. 11, § 1. Persons who had been banished from the country were threatened with death in case they returned. They were to be executed 248 Chapter IX] GERMANY IN THE 1700 s (§56 The Austrian Theresiana. — The Austrian " Theresiaim " of 1709 is a carefully elahorated statute, with a fairly comprehensive "general part." E\ery\vhere it gives evidence of the endeavor to do injustice to none and conscientiously to balance guilt and punishment. The principle of the mitigation and aggravation of penalties is given special treatment, and is also carried out for the separate ofl'enses. The preface states that a purpose of the Code is to eliminate the difficulties encountered hy the officials and courts because of the dissimilarities in the criminal statutes of the separate crown territories ; but this is not (as Berner would have it) '' the only purpose of the statute ; for the defects of the previous laws are also expressly emphasized in the preface. The Code renounces a theological basis (in principle, though not always in effect), and declares the purpose of punishment to be: the improvement of the offender, the satisfaction of the State, and the deterrence of the masses. In its treatment of j)unish- ments affecting the civil status of individuals, there ai)pcars a beginning of a clearer conception, which treated certain penalties as barring the way to special honors but not as affecting ordinary callings,^ and at the same time tried to make them suitai)lc to the nature of the i)articular crime and often even to the indixidual case. Sorcery was treated virtually as a deception and fraud.' The use of the pillory as a punishment was limited ; exile of subjects of the crown territories was to be imposed only with the sanction of the authorities. as "contemners of the command of the hereditary and electoral princes." Express denial of allegiance to the ruler was to be punished by quartering. 11,8, § 1. 5 Berner (pp. l\ et seq.) is too harsh in his condemnation of the law, and gives his attention exclusively to its darker aspects, which will he next taken up and are indeed very conspicuous. 8 As to loss of honorable position and rehabilitation, see I. 10. it is remarked that military service is in no way to l)e regarch>d as a punish- ment, but rather under some circumstances as a scliool for obedience. ^ Conditional, however, in some cases ujion the assent of tlie rulers. Cf. Tr. r. Mnnshurg, "Zur Kntstehungsgeschiclite der Theresianisclien Halsgerichtsordnung mit l>esonderer Rücksicht auf das im .\rt. öS der- selben behandelte Crimen magi;e vel sacrilegii " ( Wien. ISSO). r/. the same, pp. 59 and (K), for a remarkable ojMnion of the lmi)»>rial Chancellor Prince Kaunitz-Rietberg. Prince Kaunitz vigorously expn-sses his o|>- position to the "arbitrium judicis" in cases of capital punishment, to the severe use of corporal punishm(Mit, to torture iwliich was now al)olislied among other civili/.ed peoples), to branding, and to the "•Crimen magia- " which was generallv ridiculed. .Mso cf. U'nhlhcrq, " Forscluingen zu (•(•schichte der alt-österreichischen Strafgesetzgebung", in dniuhul's "Zeitschr. für das Privat- und öfifentliches Recht" (VIII, 1881). pp. 254, et seq. 249 § 56] THE RENASCENCE AND THE REFORMATION [Part T, Title III Nevertheless, the valuation of the specific crimes showed still a thorough spirit of bigotry. Blasphemy was treated as the " first and worst " offense. Perjury was classed as a kind of blasphemy. Apostacy from the Christian faith was a crime. That the offender was a Jew was sometimes treated by the lawgiver as a reason for increasing the ])enalties. Sexual relation between Jew and Christian was a crime, punished with flogging. Suicide, moreover, was ranked as a crime, — in keeping with the inher- ently theological and moralizing spirit of this Code. An attempt at suicide (in natural correspondence with the general attitude of the courts of those times) was punishable with discretionary penalties ; and the body of the self-murderer was to be destroyed like that of a beast. Torture was expressly preserved in its most repulsive forms (fire, etc.). With a holy and well-meant zeal and a spirit of crude deterrence, the legislator extended the death penalties even beyond the scope of the now ancient Carolina — in some cases w^ith a really barbarous intensity of suffering.^ He even considers it necessary at times " for an example to the masses " to perform execution upon the corpse of one who had died before punishment. The Theresiana is not a complete code in the modern sense. The legislator sometimes ^ refers to earlier statutes ; and (as in the Codex Bavaricus) he still allows the judge to punish acts which are merely analogous to some defined crime,^° — although only with the permission of the appellate court. The Statutes of Frederick II of Prussia. — In like manner the separate statutes of Frederick II of Prussia show the impression of the movements for reform. One of the first acts of Frederick the Great had been to abolish torture completely.^^ In 1744, banish- ment was superseded by imprisonment in a fortress or peni- tentiary. The punishment of infamy was also substantially limited, in 1756, " because the offender who is subjected to infamy becomes a useless member of society, and if he obtains his release from the prison or workhouse, he finds himself without means to earn his bread in an honorable way." Capital punishment for several classes of theft (committed without violence) was abolished in 1743. In repealing the penalties for simple unchastity, the ^ E.g. by first tearing open the breast ; a frequent penalty is the burn- ing and mutilation of the convict prior to his execution. 9 Cf. e.g. II, 73. '» I, II, § 10; II, 104. " Cf. Hälschner, pp. 174, 181. 250 Chapter IX] GERMANY IN THE 1700 S [§57 king gave consi(leral)le attention to the prevention of child mur- der (a problem much discussed in the 1700 s). Here, however, he was only acting in accordance with the spirit of the times, i.e. the ideal of the absolute State, j)()licing morals and seeking by severe penalties to check conduct which is contrary to the general sentiments of mankind but is after all not to be reached by coercive penalties; a policy which fritters itself away in a mass of details that now seem to us extraordinary.'- By a rescript of December 6, 1751, the bodies of suicides were no longer to be turned oxer to the scavenger, but were to be buried, privately but honoraljly. Later, however, in the reign of Frederick the Great, certain of his ordinances show a reaction against too great lenity on the part of the courts. Thus the princi])le of the " talio " for cases of homicide in a personal encounter was restored; for the aged king jierhaps felt that he had been in advance of the spirit of the times; and another ordinance provided severer punishment for those wIk; imperilled the safety of the highways. § 57. The Austrian Code of Joseph II of 1787. — The abolition of torture had })een effected in the (icrman Austrian crown lands and in (lallcia and the Banat by an imi)erial decree of Jainiary '.\, 1776. This was followed, on the 13th day of Januar\-, 17n7. by the Austrian Code of Joseph II dealing with crimes and penalties, in which an attempt was made (although, on the whole, with little success or consistency) to realize the reformatory ideals of the age. The legislator, indeed, undertook his task with suffi- cient seriousness. It was his desire to eliminate all desi)otism from the administration of criminal justice, and to draw a proper distinction between offenses that are criminal and " jjolitical offenses " {i.e. police measures). An endeavor was also made to strike a proper balance between crimes and their punishments, and to adjust the latter so that their influence sliould not be merely ephemeral. This task the statute sought by means of short, concise statements, which stand in favorable contrast with the long-drawn-out exj^ressions theretofore in use. All previous penal statutes dealing with crimes were rcpc;dcd, '2 "Ciroulare . . . wogen Rosich lifruiif; dor Sclnvanporschafl lialhoii, solches a1)(T lou{?nondon Woi])spors()non" of Aur. 1, ITf)!) ("Nov. (\)rpus Constitutionum Alaroliic", II, N. 74. p. 158). Ordinanoo of Fob. S, 17C).), against the murdor of unborn i]lo},Mtinia1o oliildron, ooncoalniont of prc«- nanoy and oonfinoniont ("N.(\(\ March." Ill, pp. ")Sr), rl svq.) In § 2 of tho s'anio tlio disclosure of i)n'trnancy is required on iionaUy of si.x years in prison, oven if Ihe chihi is l)orn alive. It is further proscribed that tho mother at the time of delivery shall summon assistance. 251 § 57] THE RENASCENCE AND THE REFORMATION [Part I, Titlk III and ill this respect the Code was designed to be comprehensive. For the first time, the judicial condemnation of an act by analogy to some other crime was now completely prohibited ; ' and thereby a sanction was in fact first giv^en to one of the most imj)ortant principles of modern criminal law. At the same time a limita- tion was placed uj^on judicial discretion in respect to punishments^ and their amount, l)y announcing the principle which we at the present time regard as self-evident,- viz. that there shall be no de\iation from a statutory penalty except by special authority of law."^ Its System of Punishments. — In accordance with the ten- dencies of the time, the Code took the step (rather too venture- some) of abolishing ^ all capital punishments '^ (except those of martial law). In its treatment of punishments involving per- manent or temporary loss of status and honorary rights,^ anrl in its abolition of periods of limitation, the Code exliibits a high- minded idealism. But this aim was bound to suffer shipwreck among the conditions of real life. x\nd indeed it seemed all the more out of place alongside of harsh penalties still retained, — punishments revolting in character and sometimes studiously aggravated "^ with a view to the greatest possible deterrence ; for it prescribed three varieties of flogging {i.e. with canes, with 1 Part I, § 1. Part II, § 3. 2 The common law doctrine had regarded it as justifiable to change a penalty fixed by statute. In France, also, until the period of the Revolu- tion tlie maxim prevailed : "Penalties lie in the court's discretion." =■ I, 2, § 13. ^ As a matter of fact, Joseph II favored the harshest theory of de- terrence ; capital punishment was aboHshed by him in this spirit only, and not (as in Tuscany) in the spirit of the reformatory theory. As to this, cf. Wahlberg in Grünhufs "Zeitschrift", VIII, pp. 274 et seq. ^ I, 2, § 20. It is an e^^dence of the lofty sentiments of -loseph II that offenses of "lese majeste" were to be mildly punished, and that there should be no death penalty for high treason directed against the person of the sovereign. Cf. Wahlberg in Grünhufs "Zeitschrift", VII, p. 573; VIII, p. 280. The Emperor regarded those guilty of "lese majeste" as out of their right minds and proper subjects for reforma- tion. 8 According to I, 184, the offender, after undergoing his sentence or receiving pardon, was to be deemed completely rehabilitated, and no prejudice thereafter was incurred by him. " As to the punishment of the galleys in Hungary, in cases of con- demnation to severe imprisonment and public labor, cf. " Oesterreich. Criminalgerichtsordn." of 1787, § 188. Hess, "Durchflüge durch Deutsch- land, die Niederlande," etc. (Hamburg, 1800), Vol. 7, p. 117, says: "A Danube vessel towed by human beings is so repulsive a spectacle that even an executioner who has become familiar ^ith breaking upon the wheel will turn his eyes away." Henrici, "Ueber die Unzulänglichkeit eines einfachen Strafrechtsprincips", pp. 94, 95. 252 Chapter IX] GERMANY IX THE 1700 S [§57 leather whips, or with birch rods), and it made liberal use of the branding-iron.* Nevertheless, the central element of the system of penalties of this Code of Joseph II was imprisonment. The modes of imprisonment, to be sure, were sometimes such as rational good sense (of even the Romans, let us say) would never have approved.^ F'or example, the punishment of " imprison- ment in chains " consisted in chaining the criminal in a dungeon so clo.seIy as to allow only the necessary movements of his body ; this penalty always included an annual flogging by way of public example. In the worst forms of imprisonment, the offender wore an iron ring about the middle of his body by which he was fastened night and day to his appointed spot, and, if the labor imposed upon him permitted, heavy irons were also placed upon him. Its Classifications and Definitions. — The separation of offenses into those which were criminal and those which were merely contrary to police regulations ^° (a distinction which, indeed, formed a step of progress) was likewise marked by perversity in its application. All offenses of negligence, a number of offenses generally deemed dishonorable (such as theft up to 25 gulden, and cheating of a heinous sort), and many other serious forms of fraud, were treated as offenses against ])()lice regulations and withdrawn entirely from the jurisdiction of the ordinary courts ; while, on the other hand, the penalty inflicted by the police authorities might be as harsh as severe flogging.^^ Though the standpoint of bigoted religion was abandoned, it was replaced by that of a rigid police morality. Blasphemy was no longer a crime ; the blasphemer was merely treated as deranged, until his recovery was assured.^- But freedom of religious faith did not really exist ; ^^ the legislator did not punish heretics as such, but he still exhibited his fear of their influence as disturbers of the traditional social order.^^ Withal, the common law concep- tions of crime were in the Code warped beyond recognitit)n and * Sometimes of a revolting nature. Public branding signified that on both eheeks the figure of a gallows was indelibly branded ; I, 24. ' A piece of perverted refinement, which could mostly hurt only the family of the convict, was that the income of his property was confiscated during the period he was undergoing .sentence. '» I, 2, § 2.5. " I, 2, § 27. '- II, 61. '•■' As to this, c/. especially Wahlbcrg in Griinhul's "Zeitschrift". VI II. pp. 281, ct .srq. ■^ II, f)4, (').'). By section 64, the pillory and strict imprisonment were prescribed for one who presumed to induce an adherent of the Christian religion to abjure that faith, to renounce all religion, or to accept a religion which rejected the Gospel. 253 § Ö8] THE RENASCENCE AND THE REFORMATION [Part I, TiTLE HI ])r()a(kMi('(] into vajijucness ; offenses were dealt with in the most heterof^eneous and strange combinations. Apart from the more difficult questions {e.g. the relationship of falsification and fraud) the same category was made to include flefamation, damage to I)roperty, and nuisances on the public highways. Pandering for immoral purposes, the offense against nature, and even adultery, were classed among the so-called " political offenses ", along with incendiary negligence and unlawful disguising.^' More attention was paid by the legislator to external incidents in the manner of commission of the act than to the relations of rights and wrong and the social interests which were endangered or injured by the act.^® As a result, the existing and well-established distinctions in the definition of offenses in the common and espe- cially in the German law were completely obscured, while at the same time an excessive part was allotted, in the definitions of the Code, to the questionable element of " malicious intent." § 58. The Prussian Landrecht of 1794. — The criminal portion of the " General Prussian Territorial Code " (" Landrecht "),^ after long and thorough preparation,^ was promulgated February 5th, 1794.^ It may be justly described as the code of a State which undertook to be a moral policeman with solicitude and conscien- tiousness, cherishing the belief that in each and every particular it was able, by means of education and, when needful, by punish- ment, not only to prevent crimes but also to promote the welfare of its people. Its prison penalties were relatively mild.* But its commands and prohibitions intruded themselves into all the petty details of domestic life. Its constant preachment, " Beware ! " sought to save its people from even the inducement to crime. The State was not at all disturbed over the fact that the precise acts for which it threatened its by no means trifling penalties were either left too little defined or were inherently incapable 15 II, 46, 57, 59. '" Mendicancy and housebrawls are in II, 59, treated together. 1 Title 20 of Part 2. 2 Chiefly the composition of Klein, later made Councillor of the Supreme Court. ' As to the earlier drafts and preliminary work, see especially Hälschner, pp. 191 el seq. The above-mentioned prize essay of Globig and Huster exercised a considerable influence in the compilation of the Code. ■• The statute provided for imprisonment both in a penitentiary (or fortress) and in an ordinary jail. No excessive measures aimed at de- terrence were incidental to these penalties of imprisonment ; except a flogging of the convicts at the beginning and the end of their period of confinement (the "welcome" and the "farewell"). Cf. e.g. 1197, 1227. 254 Chapter IX] GERMANY IN THE 1700 S [§58 of being reached by the courts ; '' and this indifference Is often from our modern viewpoint hidicrous enough.^ The State pro- ceeded upon the assumption that peaceableness and obedience are the foremost duties of its citizenry, and that therefore, where the State fears that its foundations (whose destruction would involve that of everything else) may be attacked or even dis- turbed or prejudiced, it may act without any regard for modera- tion ' or the recognized limits of justice. Hence, its definitions of offenses were as elastic, to use a modern expression, as india- rubber.^ It was willing to employ such rigorous measures, domi- nated as it was by the notion that the one important thing was to break any refractory self-will of its people.^ ^ Cf. especially §§888-932. §906 merits special mention: "Any person to whom an unmarried pregnant woman communicates her secret must not reveal the same, under pain of discretionary but substantial penalties (§§ 34, 35) as long as there is no reason to anticipate an actual crime by the woman." § 929: "It is also incumbent even upon persons who do not occupy a special relation to said woman, if she has communi- cated to them her pregnancy or has confessed, to admonish her to observe the statutory provisions (§§901 el seq.).'" ^ Cf. e.g. §§ 1308, 1309: "Anyone who with a view to his own profit shall by means of slander promote discord among near relations or married couples shall suffer a substantial fine or corporal penalty proportionate to the malicious intent and the harm resulting therefrom." "Anyone who promotes this discord with a view to deprive the natural heirs of their inheritance or legacies and to direct such to himself or others, shall be punished as a swindler." § 933: "No one shall commit against or in the presence of a person, whose pregnancy is evident or known to him. acts which are likely to arouse violent emotions." (!) ^ According to § 93, anyone guilty of high treason was to be executed, with the most severe and horrible punishments of life and limb, propor- tionate to his evil intention and the injury contemplated. § 95 says : "Persons guiltj^ of high treason shall not only forfeit all property and civic honors, but also transmit the burden of their calamity to their children ( !), if the State with a view to avoiding future danger shall find it necessary to banish them or to place them in permanent confinement (!)." In § 109 death by burning is imposed for the betrayal of one's country. ^ § 151 : "Anyone, who by impudent and insulting criticism or ridicule of the laws and ordinances in a State shall arouse dissatisfaction and restlessness of the citizens against their sovereign, incurs a penalty of imprisonment in a fortress or jail of from six mouths to two years dura- tion." Cf. also the perverse provision of § 1.57 for the punishment of injury inflicted in self-defense; and §119: "Anyone who knowingly enters into relations whereby the State in any manner whatsoever cmiUl ( !) become involved in external insecurity or dangerous complications, although he is not acting with evil motive and although no liarm actually comes to the State, shall be punished by imprisonment in a jail or fortress for a period not less than six months or more than two years." ' Moreover, the State must be de|)rived of nothing useful, nor of any of its useful citizens; cf. § 14S : "Anyone who induces a factory foreman, servant or workman to go abroad or assists him therein, or wlio reveals to foreigners secrets of manufacture or trade, and likewise anyone who 255 § 5S] THE RENASCENCE AND THE REFORMATION [Pakt I, Title 111 The legislator {ip])ears withal to have re.ganled his newly devised eommands and prohibitions as hardly less important than the offenses enshrined in long-settled tradition. The regulation of masked balls and masquerades is united with the suf)pression of rebellion ; and the petty police of the house and the hunt (on such matters as those contained in § 738 ^° and § 741 ") is given prece- dence over the punishment of assaults and homicides. Naturally enough, a code so characterized by its attention to moral police- manship introduced for all citizens a general duty of preventing almost every variety of crime. Every man became, as it were, a deputy of the police against all other men. Naturally, too, the offender's willingness to confess and to turn State's evidence was made a general reason for mitigating penalties ^- ; for here the reprehensible nature of the offense was oft'set bj' the offender's obedience to authority. Moreover, the Code was designed to be a book of general influence on the people; by instructing them, it helped to prevent crimes. Thus it aimed to render super- fluous and to supplant that mass of legal learning which the great Frederick in his da}' had so abominated (and not entirely without reason). ^^ In contrast with these cardinal defects, the Code possessed certain features of merit. It dealt with the principle of responsi- bility in a more systematic and correct manner than any of the other codes already mentioned.^* Its treatment of offenses against religion was as a rule more correct than that of earlier legislation.^' intentionally deprives the fatherland of any other advantage of this character in favor of foreign States, incurs a penalty of from four to eight 3'ears, imprisonment in a fortress or penitentiary." 1" "Mothers and nurses must not take children under two j'^ears of age into their beds and allow them to sleep with themselves or -nith others." " "Travelers or hunters who carry loaded weapons must, if they enter a house or sojourn anywhere among people, either keep the same under their immediate care or remove the charge." 12 §§58 et seq. " The legislator did not limit himself to penal provisions ; he inter- sperses a number of provisions having to do with discipline and compensa- tion for damage. ^* Negligence was no longer treated as a mitigating circumstance of offenses importing malicious intent. Cf. Hälschner, p. 210 et seq. The merit of the Code herein is not so important as Hälschner assumes, since the distinction between negligence and intent is not, clearly stated and is marred by presumptions. 1^ These are classed under the heads of insult to religious companies, incitement of public tumult, incitement to disobedience of the laws, etc., and disturbance of the public peace (§§ 214-218). Nevertheless, one is reminded of the earlier notions by the prohibition to found a sect whose doctrines openly reject reverence of the Deity (§ 223). 256 Chapter IX] GERMANY IN THE 1700 S [§59 The common law definitions of offenses (so rankly distorted in the Code of Joseph of Austria) were preserved, upon the whole, much more accurately.^® And here was apparent that able technical equipment of the draftsman Klein, which Feuerbach later un- justly criticized. Thus it was that Prussia after all attained a fair success with the criminal portion of its General Territorial Law ; for in the definition of those offenses which are most important in the daily administration of the law no changes were made, and its own special additions were either ignored or not followed to their logical consequences.^^ It did, indeed, exhibit those shortcom- ings which a casuistic legislation always entails ; and for Prussia it had the special disadvantage that it accustomed the Prussian practitioners to regard their law as something entirely apart, and thus effected a certain separation from the common judicial prac- tice of Germany. ^'^ § 59. The Austrian Code of 1803. — The frightful severity of the Austrian Code of Joseph II brought about during the reign of Leopold II the mitigation of a number of its penalties. The penalties of imprisonment in chains, labor in the galleys, public flogging, branding, restriction to a diet of bread and water, and sleeping upon bare boards, were all discontinued. In the reign of Francis II, the work ^ of framing a new code reached its con- summation - in the " Penal Statute for Crimes and Graver Police Offenses " of September 3, 1803. 1" In this respect, indeed, there are some unfortunate deviations from the common law. Cf. §§ 1110, 1366, concerning "furtum usus", poach- ing (§ 114.5) which is treated as theft (sometimes even more severely), forgery (§§ 1378, 1380). ^^ An example of such a perversion of definitions of offenses may be seen in § 1495: "Upon those who injure the country, who harm many citizens or the public at large, or place them in jeopardy, shall in everj- case be imposed a penalty of several years' imprisonment in a fortress." 1* The literature of the Prussian criminal law was in substance a mere collection of the statutes. Klein, in the preface to his book, "(Irundsätze des gemeinen deutschen und preussisehen peinlichen Rechts" (1796. 2d ed. 1799), regarded as a part of the Prussian law tlie general maxims of the common law ; and this was also frequently maintained bj' the best Prussian jurists. 1 Cf. llerhal, "Handbuch des allgemeinen österr. Strafrechts", 1, (6th edition, 1878), pp. 9, 10. Also Wahlbcrg, in Cninhiil'.^ "Zeilschrift", VIII, pp. 283 et seq., especially in regard to the opposition of Sonnenfels and Froidevo, to tlie reactionary principles. - In 1797, a draft of the Code had already gone into effect in West Galicia. Tlie Code applied to all the provinces of the Austrian crown, with the exception of Hungary, the district of Hermanstädt, and the military frontier. 257 § 59] THE RENASCENCE AND THE REFORMATION [Paut I, TiTLE III III this Code the deatli penalty was rotaiiicd for a few crimes besides high treason, viz. murder;^ liomicide incidental to robbery, forgery of commercial paper, and certain cases of incendiarism. An endeavor was made to give rational treatment to the penalty of imprisonment in its various aspects ; although the spirit of the times rendered discrepancies inevitable. In the penalties affixed to crimes (in the stricter sense) the theory of deterrence clearly prevailed.'' Even in the penalties for misdemeanors (" Vergehensstrafe ", i.e. punishment of the graver offenses against the police measures), while a distinction was made between im- prisonment with and without hard labor,'' there is no lack of meas- ures which were ineffectual or were such as injure the self-respect of the offender and render difficult his reestablishment in the civic community. Corporal punishment of persons of low rank was abundantly dispensed.^ But, the judge was given an extensive power to mitigate the penalties ; and (as observed by Herbst) the Austrian Code of 1803 became in practice one of the mildest of the modern codifications. The " General Part " (as Berner correctly points out) was framed, in contrast to most of the later German codes, with wise reservations, and was so elastic that an ample field remained for adjustment between theory and practice. The definitions of the " Special Part " (like those of its forerunner, the Code of Joseph) were in many respects faulty; and the classification (as crimes, misdemeanors, or lesser offenses) was in many specific instances open to objection. 3 Murder ("Mord"), according to the Code (cf. I, § 107), embraced also the manslaughter ("Todtschlag") of the German Code. "Todt- schlag" according to § 123 is a "mahcious act dangerous to life and result- ing in death." '' 1, § 14. "The worst punishment, i.e. 'Kerkerstrafe' of the third grade consists in this : The convict shall occupy a cell removed from all companions, in which however he shall have such light and air as is neces- sary for the preservation of health. He shall always wear heavy irons on his hands and feet, and there shall be placed around his body an iron ring, by which he shall be fastened during the time he is not engaged with his labors. On only two daj's of the week he shall have a warm but small meal of meat, on the others he shall be Hmited to bread and water. His bed shall be bare boards, and he shall be precluded from meeting or con- versing with people." ^ "Arrest" of the first and second grades. ^ II, § 17 : "The imprisonment may be made especially severe : (a) by corporal punishment, {b) by deprivation of food, (c) by public exhibition, (d) by hard labor, or (e) pubhc common labor." II, § 15: "Corporal punishment shall be inflicted only on servants, laborers, and people of that class who earn their livelihood day by day and whose imprisonment for even a few days would injure them in their occupation and their sup- port of their families." 258 Chapter X FRANCE, FROM THE 1500 s TO THE REVOLUTION i § 59a. General Features ; Lack of a Criminal Code. § 596. Discretionary Character of the Penal System. § 59c. Crimes: General Notions and Classification. § 59d. Penalties in Use. § 59t'. The Several Crimes and their Punishments. § 59a. General Features ; Lack of a Criminal Code. — The 1500 s find France virtually at the end of the niternal struggle for domination between the royal power and the feudal estates. By the 1500 s the estates are organically united under the kingdom. By the IGOO s, under Louis XIII and Richelieu, the feudal system is completely absorbed in the sovereign royal power. In the 1700 s, under Louis XIV and his successors, royal absolutism reaches its height. And though the seigniorial jurisdictions still survive, and the royal jurisdiction is divided into the two classes of ordinary and extraordinary jurisdiction, yet the law both of crimes and of criminal procedure was substantially the same in all the courts of this period. - Amidst this progress of political centralization, its accompany- ing activity in general legislation and legal science, and its thor- oughgoing changes in private and public law, the notable fact is that the criminal law of France underwent no radical change. It may be asserted without exaggeration that the law of tlie 1200 s is that of the 1700 s. • [This Chapter is taken from L. von Stein'.s "Geschichte des fran- zösischen Strafrechts und des Prozesses ", 2d ed. 1875, pp. 58(i-(32{) ; the translator is Mit. Millar. For this author and work, and the translator, see the Editorial Preface. § 59a represents a condensation of the author's text ; § § fidb-e are a translation ; slifj^ht liberties were taken with the text to adapt it to the purpose. — En.j - [For the history of criminal procedure in France, see Esmdii's "His- tory of Continental Criminal Procedure," translated by Simpson, being Vol. V of the present Series. — Ed.] 259 § 5<.)aJ THE RENASCENCE AND THE REFORMATION [Part I, Title III The royal Icj^islation, ('xhil)itiiifj; the activity of the new royal power, fills the first half of the f 500 s, and includes the Ordinance of 1493 and Louis XII's Ordinance of Blois of 1498, dealing with courts and procedure. It culminates, for that century, with the Ordinance of Villers-Cotterets, in 1539, which became the founda- tion-stone of the judicial system for the whole ensuing period. A^A second great group of legislative achievements begins under Louis XIV, with the Civil Ordinance of 1607, regulating civil procedure ; * followed by the Criminal Ordinance of 1670, regulating criminal procedure. In 1673 came the Ordinance of Commerce, and in 1681 the Ordinance of Marine, — two great monuments to the initiative genius of Colbert the statesman.^ But amidst these ^^a^ied legislative products, no code of criminal law was enacted. The Old Regime in France never had a Criminal Code/J The reason for this notable fact la}' perhaps chiefly in the peculiar history of French criminal procedure. The great in\'en- tion of France in this field was the public prosecutor.'^ This official, as a part of his function, was accustomed to make a mo- tion (" conclusion ") specifying the penalty which he demanded to be imposed on the accused. In these " conclusions ", therefore, there was a wider range of variation than there would have been under the strict letter of a criminal code ; and the power and authority of the official prosecutor was correspondingly enhanced. The infliction of some punishment, apart from the details of the specific penalty, was enough to satisfy the interests of the State. And thus the criminal law was content to be embodied in these " conclusions ", while at the same time it preserved the wide dis- cretionary range which was regarded as essential. — This may explain the lack of any legislation during this period comparable to Charles V's German code. Roman Principles in France. — The study of the Roman law in France culminates in the middle of the 1500 s. Alciat, the Hu- manist, Cujas, Baudouin, Doneau, Douaren, Hotman, — these were the notable names of the world in that epoch. ^ But the 3 [The subject of French civil procedure is treated in Engelmanns "History of Continental Civil Procedure," translated by Millar, being Vol. VII of the present Series. — Ed.] * [The work of Colbert is described in Vol. II of the present Series, "Great Jurists of the World." — Ed.] 6 [For the history of the public prosecutor, see Esmein's "History of Continental Criminal Procedure," being Vol. V of the present Series. — Ed.] «[These jurists, and their work in making France the center of Romau 260 Chapter X] FRANCE, FROM THE 1500 S TO THE REVOLUTION [§ 59a effects of this scientific activity were widely different in tiie fields of private law and of criminal law. During the 1500 s the numerous bodies of local customary law were reduced to codes, pursuant to a system prescribed by royal ordinance. These customary codes, forming a native French common law, came into competition with the Roman legal science of the jurists. The task of the next two centuries was to recon- cile these two bodies of legal principles. Gradually an amalgama- tion took place. The private law became a composite one, with the Germanic and the Roman elements varying in dift'erent regions. \/But in the criminal law no such situation was presented. The codes of local customs contained nothing of criminal procedure, and little of criminal law. Hence no such contrast and competi- tion here arose between the local native principles of customary law and the jurists' principles of Roman law. The Roman law movement of the times thus obtained sole and unobstructed domi- nation. The private customary law, when codified, had become the subject of university study. But for the study of criminal law, there was little but Roman materials, including the works of the then modern Italian criminal jurists.^ Moreover, the tendency, above mentioned, to merge criminal law and procedure, and to regard the former solely from tlie latter standpoint, was thereby emphasized. Both were developed in the hands of royal judges, trained in the Roman law, who had no native criminal law princii)les to master. The judge's rooted tendency to merge substantive law in procedure was a feature which French criminal law never afterwards lost, A natural consequence was the subsidence of any systematic study of the substantive law. The " conclusions " of the public prosecutor contained all that was needed ; and the procedure became and remained the principal object of attention. And thus it came about that, in the legal development of France, the lack of a science of criminal law was as notable as the lack of a criminal code. Of the few and fruitless attempts of jurists to place the sub- stantive criminal law on an independent footing, only the following law study, are described in Vol. I of tho present Series. "A General Sur- vey of Events, Sources, Persons, and Movements in Continental Legal History." Alciat and Cujas are the subjects of special studies in Vol. II of the Series, "Great Jurists of the World." — Ed.] ' [For the rise of criminal h'^^al science in Italy, see Calisse's "History of Italian Law," being Vol. VI 11 of tlie present Series. — Ed.] 2Ü1 § öDfc] THE RENASCENCE AND THE REFORMATION [Paut I, TiTLE IT! need he noted : Jean Duret's " Traicte des peines et des amendes ", of 1453, which shows the main outhnes as they persisted until the 1800 s; Ayrault's " L'ordre, formalite et instruction judi- ciaire ", of 1570; Soulatges' " Traite des crimes", of 1762; Jousse's " Traite de la justice criminelle ", of 1771, which is the standard source of information for the 1700 s; and Muyart de Vouglans' " Institutes au droit criminel ", 1747, " Lois criminelles de la France dans leur ordre naturel ", 17S0 (in which the author sought to do for criminal law what Domat had done for the Pan- dects of civil law). § 596. Discretionary Character of the Penal System. — The criminal law of this whole period stands in a close and peculiar relation to procedure. While the latter, even as to matters of detail, came to be treated with the utmost clearness and precision, it w^as far otherwise with the former. Neither legislation nor legal science discloses an\i:hing like a systematic and well-defined body of criminal law. Positive enactments concerning crimes and punishments did not produce, as they did in Germany, a recog- nized subject-matter to which the functioning of procedure is restricted ; in the field of repression, procedure holds absolute sway. It was this situation, more than anything else, which, in the preceding period, had brought about the ascendancy of the royal judicial officers, — which had enabled them to make themselves both respected and feared, throughout the kingdom, as the re- lentless pursuers of crime and criminals, irrespective of kind or degree. The supplanting of earlier forms of criminal procedure by that of public prosecution,^ which became an accomplished fact in the 1400 s, had placed what w^as left of the seigniorial power completely in their hands. Moreover, it seems to be true that crime, in its essence, consists in the idea of an injury sustained by the general personality through the injury to the individual. Now, w^hen this general personality attains to supremacy, it is quick to feel injury, and encounters on every hand what it regards as occasions of offense. Thus occurs the phenomenon, of which we here meet an example, namely, that the punishing power increases in strength as the ruling organism advances toward absolute dominion. The magistrates of the King looked upon themselves as the State ; it was therefore but natural that they ' [I.e. the form of procedure that came in with the public prosecutor. See ante, § 59a, note 5. — Transl.] 262 Chapter X] FRANCE, FROM THE 1500 S TO THE REVOLUTION [§ .596 should undertake to determine what acts constituted crime, as weh as to settle the punishment of these acts. This tendency of bureaucratic officials to force slight offenses into the category of serious ones and to heighten the severity of punishment, is something that the State can eft'ectively counteract only by a system of penal legislation. For the latter has a twofold signifi- cance in the present regard. Not only does it create a definite sphere for the activities of procedure, but, at the same time, |t marks out certain limits which the State, in its relation to the free action of the individual (and also, consequently, of the agents of the State), may in nowise transcend. By a step of t^iis sort, the State voluntarily fixes the boundaries of its own jurisdiction in the domain of private freedom, and recognizes the liberty of the individual, as opposed to its own absolutism. Such a system of legislation the French kingdom had never had, principally because, as we may well suppose, the monarchy had never been inclined to concede this much to the rights of its subjects. In any event, the result was that, down to the time of the Revolution, the official judge and the official prosecutor alone had the power to declare what was crime, and to say what penal consequences should follow the act so declared to be crime. In the absence of a general penal law, every criminal judgment came to be a law for its own case. This is the most notable char- acteristic of the repressive function during the period before us. When some act had come to light which either the judge or the public prosecutor regarded as calling for punishment, the juilicial investigation was set on foot. On its termination, the prose- cutor formulated his complaint, specifying therein some particular punishment which he sought to have inflicted. That done, the court, after consideration of the complaint, decided the matter according to its individual discretion. And it was this individual 'discretion, and this alone, which determined the manner and nieasure of punishment. If a Regional Custom or an Ordinance had already prescribed a penalty for an act of the same descrii)tion, it could not, of course, be ignored. But provisions of the sort were seldom closely observed; instead of the law controlling the judge, the judge controlled the law. The condition thus existing could noinail to give rise to abuse of power on the one hand, and insecurity of life and property on the other. And enduring as it did, almost without opposition, from the löOOs on, it power- fully contributed to exasperate the people against their rulers, and 263 § 596] THE RENASCENCE AND THE REFORMATION [Part I, Title III to emphasi/c the need for a system of penal legislation resting upon entirely different prineiples. Writing in the middle of the 1500s, Tmbert says: "In this kingdom, all pnnishments are discretionary." - And, in a note to the same passage, Automne concedes that " where a punish- ment is discretionary, and is left to be determined ' officio judicis,' the judge has power to sentence the offender to death ", as, indeed, had been recognized by a Decree ^ of 1545. Only new punishments the judge is not allowed to invent or apply : he is restricted to those already in use. This fearful power is still unabated in the 1700 s. We find Jousse "* using the identical words of Imbert : " In this kingdom, all punishments are discretionary." Criminal law is really nothing else than the unfettered will of the judges. Nowhere than in this field is more manifest the final and decisive triumph of the royal magistracy over the old law : here these agents of the monarchy reach the zenith of their dominion over public and private right. Moreover, this state of things moulds all legal thought in penal matters. Because of the legislative authority of the judges and prosecutors, the writers, as early as the 1500 s, are compelled to devote their attention to cases, instead of to principles. They deal solely wäth individual crimes, and, even with these, in a fragmentary way. Although fuller and more orderly, Jousse's treatment is essentially but little different from that of Duret. Any science of criminal law that the present period possesses is in reality scarcely more than a guide to procedure. Positive enactments, at best, furnish mere examples for practical applica- tion. The whole penal law centers in the " conclusion " of the prosecutor and the judgment of the court. /^No doubt the legal profession thereby acquired an influence and standing unknown in countries having a real system of penal legislation ; but, on the other hand, the same causes degraded the criminal law and made it the mere tool of police administration^ So much for the general character "oi the criminal law. Our task now divides into two branches. The first is to ascertain * "Practique judieiaire tant civile que criminelle," Bk. Ill, c. XX, § 7 (1548). [This book first appeared in Latin under the title of "Institu- tiones forenses", soon after the Ordinance of 1539. Stein, p. 605. — Transl.] ^ [For the nomenclature of French royal legislation, see Vol. I of the present series, "A General Survey of Events, Sources, Persons, and Movements in Continental Legal History," p. 249. — Traxsl.) * "Traite de la justice criminelle de France," Pt. I, Tit. I, p. 4. 264 Chapter X] FRANCE, FROM THE 1500 S TO THE REVOLUTION [§ 59c what, in the main, were the Hmits of the prevaihnn; notions of crime and punishment ; the second, briefly to survey the several crimes in so far as they came within the purview of definite legis- lation. From a practical standpoint, the first is the more impor- tant ; and in dealing with it, we are not to lose sight of the fact tliat the courts were the principal instrument, not only in designating the manner and measure of punishment, but also in the develop- ment of the notions into which wo arc inquiring. § 59c. Crime ; General Notions and Classification. — Under conditions such as those above outlined, the conception of crime must needs be far from scientific. In the older days, before the Criminal Ordinance of 1G70, there had been no attempt what- ever to attain any definiteness in this respect ; the matter in all likelihood having been left entirely to the interpretation of the courts. Even in the 1700 s, the notion is still vague and sterile.^ There was no less uncertainty as to the old distinction between " crime " and " delit." " Delit " and " crime " soon became convertible terms. Soon, too, and especially in practice, mere l)olice offenses became classed as " delits." ^ Any clear-cut notion of crime was consequently out of the question. Crime was any- thing that could be made the subject of punishment ; and any- thing could be made the subject of punishment that the judge regarded as punishable. This feature appears to have been most pronounced in the 1500 s — a time when the disturbed condition of the public peace both necessitated and excused resolute en- croachments on the part of the judiciary. Thus Duret classes as punishable offenses such matters as the giving of " false direc- tions as to the way ",^ the attempt to exact excessive dowries and marriage portions ("dots et douaires "),^ failing in "submission or reverence to the great of the land ", '^ and drunkenness (com- plaining that " over-indulgence in wine is not punished according to the equitable law of the Ocrenses whereby the drunkard is inexorably put to death ").'' Here too, he includes idleness, mendicancy, and vagabondage. Idleness and mendicanc\', it is 1 Jousse, "Justice criminelle", Pt. I. Crime signifies any unjust act tending: to injure society and disturb the public peace, which is forbidden by law and deserves to be punished with more or less severity. Lanqe, "Nouvelle pratique", Bk. I, c. 1, pp. 2,3. - "Aeeordinp: to Ihe usage of the l)ar", "delits" are "the lesser 'crimes^ and those which require a merely civil rei)aration or a pecuniary penalty. " Jousse, loc. cit. 3 "Traicte des peines et amendes", pp. 47, 48. ■» Ibid., pp. 56-58. * Ibid., pp. 124, 125. « Ibid., p. 97 b. 2Ü5 § rA)c\ THE RENASCENCE AND THE REFORMATION [PAUT I, TlTLK HI to he noted, were iJiiiiislied iiDcler Henry II, by consif^nment to the galleys. For vagahondage the penalty was ordinarily corporal chastisement, but, in case of repeated offenses, the offender was to be put to death (Ordinance of 21 October, löGl)," and every judge had jurisdiction to inflict tlie death penalty. The first step out of this confusion was the Criminal Ordinance of 1G70. By introducing a definite order and scale of punishments, it came to supply the division of crimes according to their penal consequences, and thus to pave the w-ay for systematization of the criminal law, with the attendant limitation of the arbitrary powers of the courts. After its enactment, we begin to see at- tempts at classification. These, however, are wholly destitute of scientific value, being in part purely arbitrary, in part merely practical. Jousse has " eight ways of considering crime." ^ Of his arrangement we need only mention two features. One is the division of offenses into public and private, atrocious, aggra- vated (" qualifies "), minor (" legers "), capital, and non-capi- tal.^ The other is the distribution of offenses committed by ecclesiastical persons, under the three heads of common offenses (" delits communs "), privileged offenses (or cases), and purely ecclesiastical offenses. Common offenses were those over which the secular courts had exclusive jurisdiction ; privileged offenses (or cases) those over which the secular and ecclesiastical tribunals exercised jurisdiction in common for purposes of investigation, but whose punishment rested solely with the secular courts. The third class, purely ecclesiastical offenses, concerned only the ecclesiastical courts. But classifications of this description could lead to no system of criminal law. They represented no more than abstract standpoints from which individual crimes were regarded. Equally unsatisfactory is the further treatment of crime in general. In dealing with this part of his subject, Jousse does not once touch upon the notions of plurality of offenses, ^'^ moral ^ Duret, op. cit., pp. 12.5, 126. ^ Loc. cit. ^ "How then", asks Lange (op. cit., p. 3) can we support the distinction between capital and non-capital crimes, when "all punishments are dis- cretionary in this kingdom?" "To be sure", he continues, "there is not a certain determinate punishment for everj^ species of crime", but the distinction has nevertheless this advantage, that it prevents the judges "from turning minor offenses and those which are punished with least severity into offenses of a graver description." This passage gives us some idea of the fears with which men were still beset in the year 175."). 1" [" Concurrenz '.' in the original = "concursus delictorum " (Fr. "cou- 266 Chapter X] FRANCE, FROM THE 1500 S TO THE REVOLUTION [§ o9c responsibility, criminal attempt, criminal intent, or the constitu- ent elements of crime. The only thing taken into consideration is the impulse (" mouvement "), and it is this which determines the " quantum " of punishment. How Roman law conceptions had invaded this field is apparent from Duret. In his introduc- tion,^' he tells us that " there is ordinarily a presumption of mali- cious intent (' dol et fraude ') in the case of crimes ", and that punishment is to be increased or lessened according to the criminal impulse (" impetuosite "), the manner of the harm (" coustume de mal "), and the circumstances in general. The judge will weigh the criminal facts (" qualitez ") on every hand, and there- upon decree " a more grievous penalty," '- — or else " the judge, after considering the cause, may limit, or altogether dispense with, the punishment, according to the personal condition of the offender, his ignorance, or unforeseen error." '^ Out of these disjointed dicta, Jousse constructs a kind of system in his chapter : " Con- cerning the Aggravation or ^Mitigation of Punishment." What we find here is in truth much the same as what Beaumanoir had said in the 1200 s : there is but little advance. Crimes are more or less serious according to the impulse " which brings about their commission ", or according to " their attendant circum- stances." '^ On the other hand, the subject of accomplices has a whole Title to itself, and is dealt with at considerable length.^' Significant of the absence of scientific treatment is the fact that neither the name nor idea of Principal anyw'here appears. And this, we take it, simply because, to Jousse's mind, the real ques- tion is that of the punishment of the participants, and, in the case of the principal, that question answered itself. It is settled by the rule now adopted from the Italians, Julius Clarus and Farinacius : all who join in the offense are to be punished alike, whether the case is that of conspiracy, joint principalship, aid by remaining on watch extended by one to the other, emplo^Tnent of one by the other to commit the crime, or instigation of one by the other to the same end. Where the offense is very serious, even guilty knowledge encounters punishment of an identical description cours de plusieurs delits") which exists where "a plurality of yet un- punished offenses comes before a court as the subject-matter of a single judgment." Geyer in von Hollzendorff's "Rechtslexikon", s.v. " Kon- currenz." — Transl.] " " Traiete des peines et amendes ", p. 6 b. >2/6(Vy., p. 8 b. »/6(V/., p. 9 a. " " Justice criminelle ", pp. 9-17. " Ibid., Tit. II. 267 § aOf/l THE RENASCENCE AND THE REFORMATION [Paut I, Title III with that inflicted on the actual doer of the criminal act. In this regard, especially, Farinacius dominated the views of jurists in the 1700 s. But in case of a remote participation, where the accomplice is not the proximate cause of the crime, his punish- ment is always moderated according to circumstances. The same is true of assistance rendered after the fact — receiving stolen goods, concealing the offender, extending him mere advice and comfort. More exact determination is left for the individual case. § 59(1. Penalties in Use. — In France, the history of punish- ment, as the means whereby the State bends to its own the will of the individual, reflects, even more faithfully than does that of crime, the several stages in the nation's political development. At first (according to the greater consensus of historical opinion), the infliction of punishments is a purely local matter and their form varies with locality ; next, the system is thrown into con- fusion through the intrusion of Roman law and the usurpations of the royal magistrates; finally, in the period before us, there arises a general consciousness that, as all France is under the sway of one body of royal officials, so also it is due to ha\'e one system of punishments which shall prevail throughout the land. At the outset, a certain element of uniformity was attained in this, that the magistrates, of their own accord, everywhere imposed the same sort of penalties. The underlying cause was the adherence to the old methods of punishment brought in from Germanic sources : the judges, as we have seen, were forbidden to invent new forms. ^ But the application of punitive measures was completely discretionary : even the provisions of positive enactments affecting the case seem to have been rather a guide than a rule. So far as legislation is concerned, there was no such thing as a system of punishments, and even the legal writers treat these in a cursory and merely illustrative fashion.^ The resulting absence of safeguards for life and property brought about the Criminal Ordinance (1670). In Title XXV, Article 13, this enactment specified certain punishments as forming a second class following the death penalty ; and thus laid the founda- tion for a penal classification. INIeagre as was the provision in ^ See Imhert, ut siip., and also Jousse, ".Justice criminelle", I, in, p. 41. 2 Although Duret follows his preface with the outlines of a scheme of punishment, he does not furnish any description of the punishments themselves. Imhert (Book 111, c. XXI) speaks of some punishments, but without any intention of treating the subject exhaustively. 268 Chapter X] FRANCE, FROM THE 1500 S TO THE REVOLUTION [§ 59d question/^ the Ordinance was received with much satisfaction; for men felt that here was a return to the old order of things and the starting point of a complete penal system. Not before the 1700 s, however, does the latter become fixed. The best and most comprehensive exposition of it is that given by Jousse.^ As this system had incorporated all the earlier punishments, a brief out- line of it will be sufficient for our purpose. Capital punishments '^ form the first class. These are : (A) The death penalty (natural death) : burning at the stake ; breaking on the wheel ; quartering ; hanging ; or beheading.^ (B) And further: (o) Consignment to the galleys for life. The punishment of the galleys must have come into use in France at the beginning of the 1500 s, but definite historical proof as to its origin is lacking." The earliest Ordinance which refers to the punishment is that of 15 jMarch, 1548,^ but Guyot ^ cites two Decrees of 1532 and 1535, respectively, in which mention of it is made. Before commencing his service the prisoner is branded ; and, according to a Declara- tion of 1677, whoever maims himself to escape the punishment is ^ The Article runs thus: "After the punishment of natural death, the most rigorous are those of torture with reservation of the proofs in their entirety ("question avee la reserve des preuves en leur entier"), con- signment to the galleys for life, banishment for life, torture \\athout reser- vation of the proofs ("sans reserve des preuves"), consignment to the galleys for a term of years, flogging, 'amende honorable', and banish- ment for a term of years." [The distinction between torture \\-ith and without reservation of the proofs was this : in the former case the prisoner was not released if he successfully withstood the torture : the proofs in hand could still be used against him and might result in his conviction (although not in a sentence of death) ; while, in the case of torture with- out reservation of the proofs, ability to withstand the torture resulted in the prisoner's acquittal: the proofs in hand were said to be "purged" and went for naught: Stein, pp. 687, 688; and see also Esniein, "History of Continental Criminal Procedure", transl. Simpson, being Vol. V of the present Series. — Transl.] ^ "Justice criminelle", Pt. I, Tit. Ill, with which the same author's notes on the Criminal Ordinance may be profitably compared. ^ Op. cit., p. 42 et seq. ^ The headman's block took the place of the gallows in the case of persons of noble birth. ' [A popular account ascribes the first emplojTnent of convict rowers in France to the 1400 s, wiien .Jacques Canir. the rich mercliant of Bourges, put into service four galleys thus manned. Galley labor as an official institution is said to date from the seizure of these four vessels by Cliarles VII. AUwij, "Les bagnes", pp. 2, 3 (Paris, 184.^) ; Quautcr, "Deutsches Zuchthaus und Gefängniswesen", p. 150 (Leipzig). — Tran.sl.] *"Recueil general des anciennes lois fran(.'aises", XIll, p. 70. It speaks only incidentally of convicts ("formats") and galleys. ''"Repertoire de .Jurisprudence", s.v. "Galeres." This account does not refer to the Ordinance of 1548. 2G9 § 5y(/] THE RENASCENCE AND THE REFORMATION [Part I, Titli; III put to death. In the case of offenders not physically fit for labor in the galleys, the sentence is generally changed to that of banish- ment for life. Of earlier date is the rule by which convicts re- leased from the galleys are forbidden to return to Paris under pain of renewed galley-.service. P\)r women, life-imprisonment, or whip- ping followed by banishment for life, takes the place of the galleys.^*^ {b) Banishment for life. — This punishment (as also banishment in general during the present period) is derived from the old law. The banishment may be either from a designated part of the country .(" hors du ressort "), or else from the kingdom at large. It was much disputed whether there could be a banishment from the kingdom for a term of years/^ and whether banishment for life from a given locality could be classed as a capital punishment. ^^ (c) In the case of extremely serious offenses, criminal proceed- ings may be brought against the dead}^ Two punishments here come in question, namely : dragging the corpse on a hurdle (" sur la claie "), and judicial condemnation of the decedent's memory.^* These are important on account of their consequences. Every capital punishment brings with it confiscation of the offender's property; pronounced against the living, it brings also civic death. Confiscation (as it passed from the old law into the regional Customs, and thence into the newer criminal law) is in principle simply the reversion of the estate to the feudal superior, whose grant is regarded as revoked by the sentence of capital punish- ment. It therefore requires no special judgment, but follows 10 Both Imbert and Diiret are silent on the subject of the galleys. Their first mention appears in Note q to the second Book of Imbert's work. Jousse teUs us nothing of their earher history. (See op. cit., p. 47, et seq.) " Lamoignon decides in the negative, as do most of the other writers. Guyot, "Repertoire", s.v. "Bannissement." ^ Jousse, "Justice criminelle", p. 50 et seq. "[This "striking peculiarity of the Roman law of treason" appears also in Scottish legal history. "Several trials for treason after the death of the criminals took place in Scotland during the reign of James VI., who piqued himself on a strict adherence to the classical standards of antiquity, though he frequently selected the worst models for imitation." Lord Mackenzie, "Studies in Roman Law", pp. 410, 411 (Edinburgh, 1898). — Transl.] " ["Condamnation de memoire": the "damnatio memoriae" of the Roman criminal law. "Damnatio memorise" ensued in cases of high treason ("perdueUio") and. according to Motnmsen, rested on the notion that in this instance the punishment took effect, not from the moment of the sentence, but from the moment of the crime, and that the proceed- ing against the dead offender was a declaratory one. "Römisches Straf- recht", p. 987 (Leipzig, 1899). — Transl.] 270 Chapter X] FRAXCE, FROM THE 1500 S TO THE REVOLUTION [§ ö9d automatically upon the judgment of conviction. That it must have redounded to the decided benefit of the feudal lords and the judges goes without saying. The situation is clearly expressed by the maxim which forms Article 183 of the Custom of Paris : " He who confiscates the body confiscates the estate." ^^ It is this close connection with the feudal relation (and consequently with the history of the transformation of the old allodial holdings into fiefs, which, in itself, assumed such manifold forms) that enables us to perceive how the right of confiscation came to exist. But confiscation was in nowise a general consequence of every capital punishment throughout France. For one thing, it was by many of the custumals confined to the single case of " lese-ma- jeste." Then, again, a variety of rules prevailed as to the kind of i)roperty subject to confiscation. And, finally, in the regions of written law, the right did not obtain at all. Soon, however, attempts to make it general began to appear. These were fos- tered by two things : the lack of definiteness as to what consti- tuted " lese majeste,^^ and the uniformity of procedure. The magistrates invented the rule that, in regions where confiscation Avas not recognized, the heirs were to be assessed a suitable fine. As early as 1588, we find the Parliament compelled to enact, by special Decree, that the fine in question " must not eat up the greater part of the convicted man's property." ^" By the Ordi- nance of July, 1685,^^ it was fixed at one-fourth of the estate.'^ As might be expected from the nature of the right, the confiscated property went to the local lord of the High Justice.^'* Naturally, too, these confiscations produced an important revenue. Like other matters of the sort, they were the subject of farming, and it was chiefly the existence of this practice which stood in the way of their abolition. Closely akin to confiscation, is the other consequence of capital '5 "Qui eonfisque le corps, il eonfisque le bien." '« Confiscation in cases of this character was first directed by the Ordi- nance of 1.539, which pro\-ides for and regulates its application (Art. 1, 11). By Art. 13 of the Ordinance of 1679, the duel is put on the same footing as lese majeste. '" See Joiisse, op. cit., p. 100. '8 Art. 45. " Jousse, op. cit., p. 100. =" ["Seigneur Haut-Justieier du lieux." For the high, the low, and the middle justice, see Bn.sfiaud, "History of French Public Law", transl. Garner, being Vol. IX of the present Series. — Traxsl.] The rule stated in the text gave rise to a host of questions as to the persons thereby en- titled. These questions are discussed by Jousse, loc. cil., but need not be here entered into. 271 § 5!W1 THE RENASCENCE AND THE llEFORMATION [Part I, TiTLE III punishments, namely civic death. It is derived, in part, from the rules of the feudal law regarding the loss of " respons en cour ", -' in part, from the Roman law notions of " infamia " and " dam- natio in metallum." -^ Civic death means the absolute loss of all civil rights ; " it sunders completely every bond between society and the man who has incurred it ; he has ceased to be a citizen, but cannot be looked upon as an alien, for he is without a country ; he does not exist save as a human being, and this, by a sort of commiseration which has no source in the law." ^^ Such a notion of civic death appears to have been too dreadful even for the legal writers of the period. Thus Jousse lays it down that civic death destroy^ only the civil rights, — the right to sue, to testify in a court of justice, to make a will or take under a will, to transfer or take by gift, — leaving intact such rights as appertain to the " jus gentium " — the capacity to contract, and even to enter into the marriage relation. But marriage, under these circumstances, is without ci\'il consequences : the children are incapable of inherit- ing from either father or mother.-"* The effect of civic death dates from the publication of final judgment : from that instant, the man is as dead, and administration of his estate takes place. Nevertheless, the obligation to pay a life-rent remains unaffected ; and he is equally liable for an unpaid marriage portion due to his wife, inasmuch as the matrimonial relation is still regarded as possible.^^ Xo mention of this penal consequence is required in the judg- ment ; it follows as a matter of course, and is effective (without exception) throughout the kingdom. In regions where the law permitted, civil death was accompanied by confiscation ; else- where, by a fine assessed against the heirs. When confiscation first took its place as a specific and independent consequence of 21 [One was said to have lost the "respons en cour", "when he has lost the right to testify in a court of justice or is no longer entitled to act as surety." Ragueau and Lnuriere, "Glossaire du droit fran^ois", s.v. "Respons" (Niort, 1882). — Transl.] 22 [Otherwise "metalli eoercitio" or "damnatio ad metalla" : con- demnation to hard labor in the mines ("Digesto Italiano", XVIII ; I, p. 1442). This under the Empire "was regarded as the heaviest punish- ment after that of death, and, as in the case of the latter, was preceded by scourging. It carried with, it the loss of Uberty and necessarily of property and other rights." {Mommsen, "Römisches Strafrecht", pp. 949, 950.) "Damnatio ad opus metalli" was a distinct punishment of a somewhat milder character. {Ibid., p. 951.) — Traxsl.] "^^ Guyot, "Repertoire", s.v. "Mort civile." 2* Jousse, "Justice criminelle", pp. 85 et seq. 25 Numerous controversies, tending in effect to a mitigation of these rules, are here mentioned by Jousse. 272 Chapter X] FRAXCE, FROM THE 1500 S TO THE REVOLUTION [§ 59d capital punishment does not clearly appear. The earhest Ordi- nance, in which it is mentioned, couples it with transportation.-^ All persons sentenced to banishment from the kingdom and to civil death are to be transported to Corsica,^' and there held in confinement. To punishments of the second and third classes the term " afflic- tive " ^^ is applied. The second class comprises punishments which are at once afflictive and corporal. It includes : (a) Maiming punishments : slitting or piercing the tongue ; cutting off the lips ; cutting off the nose ; cutting or burning -^ off the hand. (b) Non-maiming corporal punishments : branding (scarcely ever imposed except in connection with flogging or consignment to the galleys) ; flogging (generally employed where the offender belonged to the lower classes and as an accompaniment of banish- ment for a term of years) ; the " carcan " ^^ and the pillory (these -^ Ordinance of December, 1556, " Recueil des anciennes lois fran^aises", XIII, p. 4G7. Confiscation is not referred to by either Iml)ert or Duret. -"Transportation later was to French Guiana: Ordinance of 1763, "Recueil general des anciennes lois franc^aises", XXII, p. 394. 2* [In the period under discussion the term "afflictive" as applied to punishment appears to be without any very fixed meaning. Jousse's use of it differs \videly from that of Muyart de Vouglans. The latter in- cludes all the punishments specified in Tit. XXV, Art. 13, of the Criminal Ordinance (see ante, p. 9 7inte 3) in his first class, which he treats under the heading of "Corporal Punishments." "We shall call by this name," he says, "all those punishments which tend to destroy the body or to afflict it in some manner, whether }>y mutilation of its members, or on account of the physical suffering which they impose. For the same reason, they are called ' afflictive ' punishments, altliough this latter term is ordinarily employed to designate such as tend merely to deprive the man of his liberty" ("Institutes au droit criminel", p. 398, Paris, 1757). By what a distinguished French author of our own day calls "an e\al heritage from the old law", punishments under the present French penal code (apart from the case of police offenses, "contraventions") are either afflictive and infamous ("afflictives et infamantes") or infamous alone, or else correctional ("correctionnelle"). "If then," says this writer, "we seek a definition of " afflictive' punishments" — a definition whose traces we have lost for want of histoincal data, and which is no longer capable of exact formulation, — " we can only say that afflictive punishments are those which are imposed on the offender with the purpose of 'afflicting' him, of maldng him suffer; while correctional punishments are those applied to the criminal with the object of reforming him. Tliis is how we come to term 'detention' (imprisonment for political otTenses), 'reclu- sion' (penitentiary imprisonment) as afflictive punishments, and 'em- prisonnement' (ordinary imprisonment) as correctional, although each and all are merely punishments which deprive the man of liberty, too often, indeed, undergone in the same establishment." Ortolan, "Ele- ments du droit penal". Vol. II, § KilO (Paris, 1875). — Tr.\nsl.] -^ Burning, however, was resorted to only in cases of löse majeste in the first degree. '" ["The "carcan" consisted of an iron collar which was clasped around 273 § r/Jd] THE RENASCENCE AND THE REFORMATION [Part I, TiTLE III also bc'iiis frequently recognized as proper in connection with other punishments). In the third class (according to Jousse), that of non-corporal afflictive punishments, are comprised : Consignment to the galleys for a term of years ; imprisonment (" rechision ") for a term of years; exile (" exil ") ; servile labor (degrading labor performed in public) ; and " amende honorable." E.vile is almost always pronounced by " lettres de cachet " and is to be distinguished from banishment (" bannissement ") in that it entails no infamy. Servile labor is mentioned in an Edict of 10 November, 1542, and is unquestionably taken from the Roman law. Allied punishments sometimes imposed are condemnation to the military service, and degradation from nobiliary rank,^^ the latter occurring only as a complement of other punishments. The punishment of " amende honorable " deserves special notice. It dates from the 1100s: the "Etablissements de Normandie" mention it in connection with parricide and infanticide ; it lasts until the Revolution. As treated by Imbert, it is of but one sort, and is pronounced " in case of an offense against the honor and authority of God, of the King, of the public weal (* chose pub- lique '), or of a private person." ^- Subsequently,'''^ it is imposed in cases of " public scandal ", and appears in two forms : simple or dry (" simple ou seche ") and " in figuris." Simple " amende honorable " requires the offender's presence " in the Chamber of Council, where, kneeling and with bared head, he craves pardon, but only of the persons injured by his act." This, therefore, is the most drastic form of personal apology that can be exacted. The " amende honorable in figuris " is the true " amende honorable " of an older period. It takes place in public, and is, in essence, an apology of the culprit before God and man for the offense which he has committed. Clad only in a shirt, with a torch or taper in his hand, and frequently with a halter about his neck, he appears before the door of the court house, or the church (sometimes before both), and there on bended knees, the ofifender's neck and, by means of an attached chain, served to secure him to a wall or post. — Transl.] '^ ["Degradation de noblesse." This is described by ^luyart de Vouglans as a species of civic death, differing from civic death proper (see supra) in but one respect, namely, that it is not attended with confisca- tion of property. "Institutes au droit criminel", p. 414. — Transl.] 3- Imbert, "Practique judiciaire", LIII, c. XXI. ^^ Jousse, "Justice criminelle", II, p. 64. 274 Chapter X] FRANCE, FROM THE 1500 S TO THE REVOLUTION [§ 59(f he declares that " falsely and in despite of truth, he has said or done such and such a thing, and that he craves pardon of God, of the King, of the officers of the law, and of the offended person." ^ At a later day, the expressions to be used are specified in the judg- ment.^' The " amende honorable in figuris " was seldom imposed as an independent penalty; it was generally combined with a capital punishment, and took place before the execution of the latter. ^Yomen as well as men were subject to it, and it could even be pronounced in the case of an offending corporation. With the single exception of exile, all these punislunents entail the infamy of the offender, — a feature which they share with the fourth class, where infamy is really the punishment itself. In this fnjirth class — the infamous (" infamantes ") punishments — are included : Compelling the offender to wear a sort of foolscap,^® and con- veying him in this ignominious headdress through the streets ; ^^ public exposition on a scaft'old or ladder; public reproof or repri- mand (" blame ") (in suffering which the offender is bareheaded and kneels) ; deprivation of public offices or privileges ; the public burning of seditious writings ; and fines (" amendes "). The burning of seditious writings takes place, without any preliminary judicial investigation, upon the simple requisition (" requete ") of the public i)r()sccutor. It is accompanied by prohibition of printing or sale, and the command to all and sundry to deliver up any copies of the objectionable writing that may be in their possession. In the highest degree characteristic of the tendencies of the criminal law is the position to which the fine becomes relegated in this period. The fine rests upon the notion that reparation of the injury inflicted is an essential part of the punishment for every crime. Hence, as the State comes to regard the sheer criminal impulse as the chief element of crime, the fine, as a punishment, disappears, and true punishments take its place. While, in the period before this, the fine had been restricted to the case of mere '^ Imberf, loc. cit. ''' Jousse, op. cit., p. 66. ^ "Estre mitre", aocordinp; to Imbort. " ["Stow relates that, in the seventh of Edward IV, certain common jurors must (for their partial conduct) ride in paper mitres from Xewpato to the Pillory in Cornliill, and there do penance for their fault. Apain, in the first of Henry VIII (I.')!)*.)), Smith and Simpson, ringleaders of falso inquests, rode the City (also in paper mitres) with (heir fac«>s to the horse's tail; and they were set on tlie pillory in Condiill." Francis Wall, "The Law's Lumber Room", 2d Series, p. 52 (, Londou, 1SÜ8). — Transl.] § r/M] THE RENASCENCE AND THE REFORMATION [I'akt I, Title III police offenses, a wide field hud yet been left to its exclusive domi- nance. In the present period, however, the time of the absolute monarchy, it has wholly ceased to exist as a true punishment. Even the influence of such of the Custumals as still reco^mize it as such, has been unable to preserve for it the old significance ; and it becomes nothing more than a mere appendage of the punishing power proper. How this evolution has been brought about best appears from an examination of the result — namely, the law of fines in the 1700 s. Here we find a distinction made between criminal fines, police fines (" amendes de contravention "), and civil fines. A civil fine is the judgment for damages awarded in favor of the civil party. Police fines (" amendes de contraven- tion ") are applicable in an extensive and well-defined category of oflFenses : injury to vert, felling timber, stealing wood, poaching (" amendes de chasse", " amendes de peche ")• They also include procedural fines^^ ("amendes de consignation et condamnation ") and fines for violations of the regulations concerning the administra- tion of tax-farming grants ^^ (" droits des fermes "),^° which last- mentioned class had its origin in the criminal law of the custumals. Criminal fines, in short, represent merely the form under which the penal fines of the old law linger in this period. Only in the most exceptional way are they independent punishments : " The fine is scarcely ever imposed by itself : it is almost always combined with some other punishment." '^^ In all cases where this occurs, its amount is discretionary, but must be at least equal to the costs of prosecution. In payment, it is post- poned to the judgment in favor of the civil party, but takes pre- cedence of all other pecuniar}' penal exactions, even that of con- fiscation, and can be enforced by execution against the body of the defendant, i.e., the latter can be imprisoned until he pays. How this result had been worked out, it is difficult to say. It is not unlikely, however, that the fine-maxims of the old custumals had been the original basis for determining the amount. In any event, these fines formed the mainstay of the magisterial power 38 [For procedural fines, see ante § 39 /, Glassoti. — Transl.] ^* [Uuder the monarchy, all revenues arising from indirect taxation came to be farmed, at first, by local contract, but later (in the 1600 s) by a general contract covering the whole of France, made with a single group, the farmers-general. See Brissaud, "History of French Public Law", transl. Garner, being Vol. IX of the present Series. — Transl.] '"' Guijot, "Repertoire", s.v. "Amende." Here the subject of poUce fines undergoes close examination. ^' Jousse, "Justice criminelle", pp. 69-72. 276 Chapter X] FRANCE, FROM THE 1500 s TO the revolution [§ Ö9(i in its dealings with the lower classes of society, and could not be other than a grievous burden to the suffering masses. Infamy, as has been said, was an essential feature of the fore- going punishments. The notion of infamy is plainly taken from the Roman law, and we find it here quite as loose as it was there, A distinction is made between infamy in law and infamy in fact. What their respective consequences were, does not distinctly appear : even Jousse is not entirely clear .*^ Infamy disqualifies one from taking office ; the official who incurs it is compelled to relinquish his place ; the infamous man cannot testify, or else his testimony is regarded as untrustworthy. An important question in this connection concerns the imposition of an unconditional fine. If this is not to be followed by infamy, the judgment must expressly so declare, by adding the words " without that the said fine carries any note of infamy." The fifth class consists of the merely civil punishments (" peines non infamantes "), which are : Admonition or warning (sometimes coupled with a fine) ; the " aumone ' V^ (a pecuniary mulct distinguishes from the " amende " in being non-infamous) ; the " poena dupli, tripli," etc. (applicable only in the case of embezzlement of public moneys and complicity in criminal bankruptcy) ; and some others of lesser moment.^ There remains to be mentioned the matter of imprisonment. Imprisonment is distinctive in its nature, in that, with its adoption as a punitive measure, there begins to arise the notion of an end in punishing, other than mere chastisement and intimida- tion. Where the necessity of attaining this end has not impressed itself upon the State, imprisonment, as a means of true punish- ment, is bound to fail. Hence, in France down to the Revolu- tion, imprisonment was in theory a mere means of securing the execution of the sentence, — although, to be sure, it found at times practical employment as a real punishment. In this view, there was uniform reliance on the text of the Digest : " career ad continendos homines, non ad puniendos haberi debet." ^^ The prisons are therefore to be used " for the safe-keeping of criminals during the judicial investigation of their causes ", and *2 "Justice criminelle", pp. 113-115. ■»' [So called from the fact that it was devoted as an alms to pious and charitable purposes. The particular objects are spcKÜfied in Miiyart dc Vouglnns, "Institutes au droit criminel", pp. 41Ü, 417. — Tkan.sl.] ** See Jousse, "Justice crimiiu>ll(>", pp. 77-84. « Lib. XLVllI, Tit. 19, " Dc poMiis." 277 § 59e] THE RENASCENCE AND THE REFORMATION [Part I, Title III cannot be treated as a means of " punishment to be inflicted by the jud<]jes." Only individual exceptions appear : the most im{)ortant are the commutation of the punishment of death or that of the galleys into that of imprisonment for life, and the recognition of imprisonment (" reclusion ") in a penitentiary establishment (" maison de force ") in the case of women and minors. These, too, are the only instances in which imprisonment has infamy as a consequence. But a true system of punishment, based upon deprivation of liberty, did not exist.''*' From among the punishments above enumerated the public prosecutor made his selection in the individual instance, when no penalty had been expressly appointed by Ordinance. Yet, even if it had been specified, the judge had the power to increase or diminish " the legal punishment according to circumstances." '*^ To the system existing by virtue of such legislative provisions it now becomes necessary to turn. § 59e. The Several Crimes and their Punishments. — In this field the specific principles found application. Definitions, the constituent elements of crime, extenuating and aggravating cir- cumstances, — these are all topics of discussion by the jurists of the period. The treatment often has a certain amount of his- torical background ; with Ayrault and Duret, however, this is chiefly a matter of reference to the Roman law, feudal law being completely neglected. The authorities invoked were, first, the various Ordinances and the decrees of the courts, in particular those of the different Parliaments ; secondly, the Roman law and the writings of the Italian practical jurists, Julius Clarus and, Farinacius. The borrowing from the last is in part direct (this is especially the case with Jousse), and in part indirect, that is to say, from the commentators on the regional Customs, and through these from the French criminalists proper. Responsible as was the influence of Clarus and Farinacius for a great enhancement of severity in punitive measures, the French law nevertheless remains indebted to them in many particulars for perspicuity and compre- hensiveness. Indeed, the learning devoted to this part of the subject attained a volume and precision which cannot even approxi- mately be here reproduced.^ All that we can do is to lay before *^ Jousse, "Justice criminelle", p. 79; Guijot, "Repertoire", s.v. "Mort civile" and "Prison." " Jousse, "Justice criminelle", Vol. II, p. 593. * In Jousse's work the subject of the several crimes and their punish- 278 Chapter X] FRANCE, FROM THE 1500 s TO THE REVOLUTION [§ 59e the reader a brief characterization of the several crimes, — requiring him to bear in mind that a systematic classification does not appear before the end of the 1700 s (when, indeed, it still falls short of being a general one), so that even Jousse fol- lows the old plan of Duret and enumerates the difl'erent crimes alphabetically. The^r^^ group, that of offenses against religion and the church, by Imbert, and even at a later day, termed " spiritual treason " (" lese majeste divine"), consists of the several crimes now to be mentioned : Sacrilege is " any profanation of sacred things." It thus em- braces all offenses (whether by way of theft or not) against prop- erty dedicated to the service of God, and all crimes committed in " holy places." According to Jousse, the punishment is dis- cretionary, yet under the Declaration of 1682 it is ordinarily death ; all accomplices are to receive the same sentence.- Heresy comprises a whole group of offenses which find separate treatment. Among these are the assembling for sectarian wor- ships ; the practice of baptismal rites by persons other than priests ; every adoption or acceptance of the " pretended reformed " reli- gion ; every relapse to that religion ; the lending of aid or coun- tenance to Protestants in their beliefs ; as well as failure to con- form to the marriage observances of the Catholic Church. So, too, it was heresy for Protestants to emigrate from the Kingdom. By the Edicts of 31 May, 1685, and 13 September, 1699, such emigrants, together with all who aided in their attempt to escape, are to be sentenced to the galleys for life. Other instances of heresy are the refusal to receive spiritual succor, while in a state of illness ; apostasy ; adherence to any schism ; and, finally, atheism. At first, the punishment was burning at the stake; later, it was varied " according to the character of the heresy and the accompanying circumstances," although for this there was a series ^ of legislative enactments ■*. Under magic and sortilege, four classes of oft'enses are recog- nized : witchcraft and sorcery ; pretended foretelling of the future ; ments extends from Vol. TTI, p. 212 to Vol. TV, p. 322. Our references will be chiefly to this writer, inasmuch as lie is the best known. 2 Jousse, "Justice criminelle", pp. Oö-lOCi. 3 These are assembled in "Code penal, pp. 13 rt srq. [The book thus entitled is a collection of the principal Ordinances, Edicts, and Declara- tions touchiiif-: crimes and punishments. It was compiled by Laverdy, and appeared in 1702. Slchi, p. ()04. — Tuansl.) * Jousse, "Justice criminelle", IV, pp. 405-480. 279 § r)9e] THE RENASCENCE AND THE REFORMATION [Part I, Title III addiction to superstitious practices; and the combination of any of these with impiety and sacrilef?e. In the 15()()s and early lOOOs, beHef in witchcraft and in " intercourse and communion with evil spirits " still found acceptance, as appears from the text of Duret.^ But the Ordinance of July, 1682, openly declaring all such matters to be " illusions ", legal opinion accordingly adopted the more reasonable view that, although there were no " real sorcerers or soothsayers ", the practices of such persons are never- theless the subject of punishment, " either because of their impiety or because of the harm that they work to others." ^ The punish- ment for this crime varied from burning at the stake to flogging/ Simony is the buying or selling of " things spiritual." (xrouped with this offense is " confidence ", which exists where one enters upon the enjoyment of a spiritual or ecclesiastical right and the performance of the duties thereto appurtenant, with intent to make over this right to another at a later day.^ The punishment of such offenses is loss of all benefices vested in the wrong-doer.^ Here belongs, also, the taking possession of an ecclesiastical living by high-handed means, — which likewise brings about the for- feiture of all benefices.^*' Next come blasphemy and profanity. Blasphemy may be committed either by writing or word of mouth. It occurs when a man ascribes false attributes to the Divinity, or denies the Di- vinity's true attributes, or whenever there is insult offered to God, the Virgin, or the Saints. The penalties prescribed by the Ordi- nances are of many different sorts. The upshot, however, is that simple blasphemy and profanity are punished with a discretionary fine, which is to be doubled in case of a second oft'ense. By the Declaration of 30 July, 1666, the punishment is increased to such 5 "Traicte des peines et amendes", p. 154 a, b. ' [Cf. the remark of Seiden, quoted in Professor Thayer's '"Trial by- Jury of Things Supernatural" ("Legal Essays", p. 329, Boston, 1908): "The law against witches does not prove there be any, but it punishes the malice of those people who use such means to take away men's Uves." — Transl.] '' Jousse, "Justice criminelle", Vol. Ill, pp. 752-767. * [Specifically "a 'confidence' is a contract by which an ecclesiastic receives a benefice on condition of paying the emoluments, or a part of them, to a third person ; or covenants to resign the preferment at a specified time. The person holding a benefice on such terms is called a 'confidentiaire. ' " W . H. P. Jervis, "A History of the Church of France" etc.. Vol. I, p. 212, note (London, 1872), citing Hericourt, "Lois eccles. de France", F. c. XX, 28, 29; "Memoires du clerge de France", Vol. VIII, p. 8. — Transl.] ^Jousse, "Justice criminelle", IV, pp. 110-118. 1" Laverdy, "Code penal", pp. 14, 15. 280 Chapter X] FRANCE, FROM THE 1500 s TO THE REVOLUTION [§ 59e an extent that for the eighth repetition the offender suffers the loss of his tongue.^^ Disorderly behavior during divine service receives discretionary ])unishment. At such a time, too, all taverns and shops must be kept closed, or the keeper will feel the hand of the law.^'- A second principal group is formed by the crimes of temporal treason ("lese majeste humaine "). The evolution of this notion of " lese majeste ", better than almost anything else, enables us to recognize the development which had been going on in the idea of the State. Since the 1500 s, it had become clear to legal science that, although the Prince represents the State, the State is in no sense merged in the Prince. Thus arose the new conception of temporal "lese majeste " — a conception which, throughout this vvhole period, preserved the same character and became clearer only in respect of the systematization that it under- went. Duret placed under this head all evil-intentioned deeds which are directed against the Prince, his councillors, or his gendar- merie, or which create public disturbances, injure the State, betray it, or set on foot conspiracies.'^ The efforts of later writers bring order out of this notional chaos. A distinction is taken between temporal " lese majeste " in the first and in the second degrees, — which is substantially that between " lese majeste " proper and high treason. Temporal " lese majeste " in the first degree embraces every attempt upon the person of the Prince, his chil- dren, or those in the line of succession to his throne, and every attack upon the State whether by overt act or by secret " leagues or associations." This offense is " one of the most atrocious that can be committed," because Sovereigns are " the images of Clod, representing in the governance of their several States that authority which is exercised by God in the governance of the Universe." '' " Lese majeste " in the second degree (or, as Jousse has it, in the lesser degrees) comprises all offenses " which cause prejudice or damage to the public weal ", or " the King's authority", " inter- fere with the due execution of public justice", or injure the sover- eign rights of the Kingdom, and all offenses directed against " the persons or the functions of magistrates or other persons who represent the Sovereign ", such as foreign ambassadors. Thus, " Jousse, "Justice criminelle", 111, pp. 260-272. " Lavcrdy, "Code penal", pp. 12-14. '' "Traicte des poincs ot aiiu'iidcs", pp. 106 et seq. ^ ^* Jousse, "Justice criminelle". Ill, p. 681. 281 § r)9e] THE RENASCENCE AND THE REFORMATION [Part I, Title III all officiiildoin is included in the notion of the State, and all crimes conniiitted within this circle or against any member of it share the same common character. Specifically these crimes are : " Lese majeste " proper; that is to say, attempt upon the life of the Prince, or of any member of the princely house. Extraordi- nary punishment is provided for this crime by the Ordinance of 1539. The offender is to be plucked with red-hot pincers and, after boiling lead has been poured into his wounds, is to be torn asunder by horses ; ^^ his house is to be razed to the ground and his estate confiscated. Under the Criminal Ordinance of 1070/^ there is even a criminal proceeding against his corpse.^^ All other species of " lese majeste " in the first degree are followed by con- fiscation, the razing of the offender's dwelling, and death ; even guilty knowledge is visited with the like punishraent.^^ On a par with the offense in question, according to the view of Jousse, is every species of rebellion, but here the death penalty is inflicted in a less aggravated form. High treason ; which includes every resistance to the royal command, every insult to the King, every appeal from the King to the Emperor,^^ or to the Pope, the assembling with w^eapons or followers in derogation of the royal authority, the fortifying of castles, and a large number of kindred acts. In serious cases the punishment usually is " confiscation of the body and estate " ; in other instances its extent depends upon the circumstances of the particular offense.^'' Under this head of high treason, also fall, for the reason assigned, certain specific crimes of a different description, namely : Counterfeiting of money. — Two principal species are recog- nized : counterfeiting of money, proper, and " billonage." The former consists of unauthorized coining, coining with false weight and standard, imitation or counterfeiting of inscriptions, clipping coin, or uttering false money. " Billonage " is the melting down of good coin or in any other manner converting it into bullion or, exporting coined money from the realm. -^ For any sort of coun- '^ [This was the manner of death inflicted, in 1610, upon Ravaillae, "who assassinated Henry IV, and, as late as 1757, upon Damiens for attempting the life of Louis XV. — Transl.] '« Tit. XXII, Art. 1. '^ For examples, see Jousse, "Justice criminelle", p. G83. '* Jousse, op. CÜ., Ill, pp. 674—705. »9 Decree (2) of 1417, in Papon's coUection, LXII, Vol. I. -° Jousse, op. cit., pp. 689 et seq., pp. 454—456. =1 Declaration of 24 October, 1711 ; Edicts of May 1718 and February, 1726. 282 Chapter X] FRANCE, FROM THE 1500 S TO THE REVOLUTION [§ 59e terfeiting of money, even for the act of uttering false coin, the penalty is death." Counterfeiting of the royal letters or seal.^ Peculation : that is to say, the embezzlement of royal or public moneys, or the use of such moneys for one's own benefit " through an infinity of evil artifices contrived by the financiers to enrich themselves at the expense of the King and the public." The punishment is consignment to the galleys for life, but, in the course of time, this has come to be seldom applied, and the court uses a discretionary power in fixing the penalty.-^ Extortion and malversation in office. — In this case, likewise, the practice is to modify the punishment according to circum- stances. By the Ordinances of ]Moulins -'" and of Blois,-^ extortion by officials was punishable with " confiscation of body and estate," yet the death penalty is scarcely ever inflicted, — giving way to banishment coupled with one of the infamous punishments.-^ Duress of imprisonment (" chartre privee ") which exists where a private person, with strong hand, deprives another of liberty. It is numbered among attacks upon the sovereign rights of the State, under " lese majeste." The principal doctrinal source is the Roman Code.^^ The punishment is a matter of judicial dis- cretion, but based on Farinacius.^^ Obstruction of public justice (" rebellion ä justice ") : This occurs through any resistance to the exercise of the judicial power, or concealment of criminals. An associated offense is that of prison breaking. In spite of the provisions of the Criminal Ordi- nance,^" escape from prison is seldom punished except when accom- panied by the use of violence or the commission of some other crime. The turnkey who affords a prisoner the means of escape incurs consignment to the galleys. In other cases there is a fine and, at times, heavier punishment.^^ Duelling. — By the opening of the 1500 s, the duel liatl com- pletely fallen into disuse as a procedural feature. In the period with which we are dealing, it is not only discountenanced, but for- 22 Jousse, op. cit., II, pp. 452-454. 23 Ibid., Ill, pp. 373, 374. 2* Ibid., IV, pp. 21-38. 2s Art. 23. 2« Art. 280. 2' Jousse, op. cit., Ill, pp. 767-810. 28 Lib. IX, Tit. 5, "De privatis carceribus." 29 Questio 27, n. 35: Jousse, op. cit., Ill, pp. 283-286. '» Tit. XVII, Art. 25. '' Jousse, op. cit., IV, p. 95. 283 § 51)t'] THE RENASCENCE AND THE REFORMATION [Pakt I, Title III bidden uikUt rigorous penalties. Indeed, the liatred vvhieli the Frenc'li kings disi)layed toward this one-time institution is quite remarkable. The last instance of a formally sanctioned duel was that between the Lords de Chataigneraie and de Jarnac, in the presence of Francis I.^- In the combat, de Jarnac, a favorite of the then Dauphin (afterwards Henry II) lost his life ; his death so affected the Dauphin that when the latter came to the throne he vowed that never again would a duel be permitted in his King- dom. At a later day, Louis XIV swore by his kingly honor, and publicly declared in the two Edicts of 1651 ^^ and 1G79/* that the offense of duelling was beyond the hope of pardon — a declara- tion repeated by Louis XV in the Edict of February, 1723. The attitude thus adopted by the monarchs had necessarily a great influence upon legal opinion. Jousse says that duelling is " more criminal than homicide ", and the Ordinance of 1679 classed it as a species of " leze majeste." For these reasons the details of the offense are a matter of close study. Distinction is made between challenge without combat and the consummated duel. Sending a challenge is punishable with two years' imprisonment, a heavy fine (to be paid to the nearest hospice), and suspension from all offices for a period of three years, — subject to increase according to circumstances. The same consequences attend acceptance of a challenge. In the case of a consummated duel, the punish- ment of both parties is death " without remission ", and this regardless of their wounds. Nor does death in the combat stay the action of the penal law. Here there is judicial condemnation of the decedent's memory, and confiscation of his estate, or, where that is not possible under the local rule, two-thirds of the estate is taken, by way of fine, for pious uses. All who participate are visited with severe punishment. He who delivers the challenge incurs flogging and branding, and, upon a second offense, consign- ment to the galleys for life ; the mere looker-on loses all his offices and dignities, or else the fourth part of his property. One good eft'ect of this unreasonable severity was that it occasioned the establishment of Courts of Honor. By the Edict of August, 1679,^^ as judges of honor were appointed the ]\Iarshals of France, ^ [In his consummate study of the duel in France, Alexander Coulin makes it clear that the royally authorized duel of the 1400 s and early 1500 s, such as the one here mentioned, was quite other than the old trial by battle. "Verfall des offiziellen imd Entstehung des privaten Zwei- kampfes in Frankreich", p. 138 (Gierke's "Untersuchungen zur deutschen Staats- und Rechtsgesehichte", 99 Heft). — Transl.) 33 Art. 24. 34 Art. 36. »^ Art. 2. 284 wcre^ Chapter X] FRANCE, FROM THE 1500« TO THE REVOLUTION [§ ö9e the Governors-General and tlieir Lieutenants. These, again, were authorized to appoint a certain nund)er of nobles, in every province, as arbitrators, with jurisdiction to determine questions of personal honor and, incidentally, to cite before them the con- tending parties. From the decisions of such local tribunals, an appeal lay to the Marshals.^^ The unlawful carrying of arms and the wearing of masks forbidden by the Ordinance of 14N7 — a prohibition which is often repeated. The Ordinance of 9 May, 1539, allowed the populace to overpower and kill (" courir sus ") the offender, but by that of 5 August, 1560, imprisonment and the loss of weapons were prescribed. Later, both cases are treated as mere police offenses.^'^ Crimes against the person constitute the third main class. Homicide in general (" homicide ") is grouped under four heads : (a) justihable homicide (" homicide par necessite ") ; (6) acci- dental homicide ; (c) homicide by negligence, and (d) murder ("homicide volontaire ", " meurtre ", " assassinat "). The kill- ing of an adulterer is not punishable. Where there has been a wounding, the case is one of homicide if death ensues within forty days. Attempt to kill, in general, is not punished as severely as the consummated offense. It is only the proximate attempt, conspiracy to kill (" machination de tuer "), the hiring of an assas- sin, and instigation of another to commit homicide, which are visited with the death penalty. Self-defense is discussed quite fully. But the learning of homicide is without anything dis- tinctive : on principle, it is based upon Farinacius. The punish- ment for murder is breaking on the wheel ; more exact determina- tion is left to the courts.'"'^ Poisoning (" crime de poison ") is dealt with as a separate offense, and is more serious than ordinary murder. Its punish- ment is death in an aggravated form, varying with the circum- stances of the case.^^ Parricide is murder committed upon the person of a relati\e, — even upon that of a natural ascendant or descendant, or of a relative by marriage. In a wider sense, it includes infanticide, concealment of pregnancy, and exposure of children, as also the murder of the master of the house by his servant. The notions here involved are the connnon ones of the 17()0s, — 36 Jousse, op. cit.. Ill, pp. 320-328. " Il>i,l., IV, pp. nO-OT. 38 Ibid., Ill, pp. 480-565. 39 /^jV/., IV, pp. 41-45. 285 § 59e] THE RENASCENCE AND THE REFORMATION [Part I, Title III })ase(l upon the Italian practical jurists, — and hence need not further detain us/'^ Suicide is still a crime. The estate is to be confiscated and a criminal proceeding? had against the corpse. These rules, how- ever, become greatly modified in practice.^^ Crimes against marriage, i.e. adultery and bigamy, likewise pre- sent a situation where the punishment is governed by a general practice. The chief doctrinal sources, as to adultery, are the 134th Novel, c. 10 and the Authentica " Sed hodie ^^ Codicis ad legem Juliam de adulteriis." The woman who offends is " au- thenticated ",''^ i.e. is immured in a cloister, and loses her property rights. The man is punished in different ways, — sometimes by death, but latterly at the discretion of the judge.^ Similar con- siderations apply to bigamy and polygamy, in default of special laws.^'' For the several forms of the crime against nature the punish- ment is burning at the stake.^^ Of the oflFenses grouped under the designation of carnality (" luxure "), rape is punished with death, as is also carnal connec- tion with a female child. In other cases, resort is had to some severe penalty of a different description, although death is usually specified in the prosecutor's demand.^'^ Pandering is attended with banishment, loss of the ears, whip- ping, and the like. Later, banishment comes into general use.^^ Incest comprises every case of sexual intercourse between kindred, as far as the degree of aunt and nephew. It does not, however, cover commerce between persons who are akin only by " Jousse, op. CiL, III, pp. 248-254 ; IV, pp. 1-26. ^1 Ihid., IV, pp. 130-142. *^ [In the first nine books of the Code, the Glossators inserted "extracts from the Novels which completed or modified a considerable number of constitutions. These extracts were called 'Authenticae', in contradis- tinction to the collection of Novels in nine collations called 'Authenti- cum' or 'Corpus authenticorum.' " Tardif, "Histoire des sources du droit frangais", p. 121 (Paris, 1890) ; and see also Vol. I of the present Series: "A General Survey of Events, Sources, Persons, and ]Movemeuts in Continental Legal History", p. 136. The Authentica "Sed hodie" is so called from the opening words of the first sentence: ''Sed hodie adultera verberata in monasterium mitta- tur ; quam intra biennium viro recipere licet." Corp. Jur. Can., ed. Beck, Code, Lib. IX, Tit. 9, XXX (Leipzig, 1831). — Transl.] *' ["Authentiquee" : signifying that there is applied to her the punish- ment of the "Authentica." Dupin and Laboidaye, "Glossaire de I'ancien droit fran^ais", s.v. "Authentique" (Paris, 1846). — Traxsl.] " Jousse, op. cit.. Ill, pp. 212-248. « Ibid., IV, pp. 51-56. « /ftj,/.^ IV, pp. 118-125. " Ihid., Ill, pp. 705-752. " Ibid., Ill, pp. 810-817. 286 Chapter X] FRANCE, FROM THE 1500 S TO THE REVOLUTION [§ Ö9e virtue of the sponsorship relation, as in the case of godfather and god-daughter. There is no express legislative provision as to the punishment ; this is graduated to the closeness of the rela- tionship, and is either death or one of the infamous punishments.^^ Among crimes against property, we encounter, first of all, that of arson (" incendie "). Its punishment is arbitrary, and varies with the circumstances. Burning at the stake is the penalty where loss of life has been occasioned. Lesser punishments are employed where only property had been destroyed.^" Next follows theft (" vol "), which is " every fraudulent abstrac- tion and carrying away of the goods of another, with intent to convert them to the taker's use." Difi'erentiation as to kind is solely by reference to the " circumstances which render the theft more or less grave." These are (a) the character of the offender (e.g. theft by a domestic) ; (6) the place of commission (highway robbery ; theft in a public place or during a conflagration) ; (c) the time of commission (theft in the night-time) ; (d) the manner of commission (theft by breaking and entering, by the display of weapons, or by violence) ; (e) the nature of the thing stolen (property dedicated to sacred uses, horses, cattle, and other graz- ing animals, wagons, etc.) ; (/) its quantity or amount (grand and petty larceny, the definition of which is different by different regional customs) ; and (g) repetition of theft. As to the last, it is to be observed that the rule making the third theft by the same individual a distinctive species has been naturalized from the Charles V's German " Constitutio Carolina " and from Farinacius. The punishment of theft is of many sorts. This is due to the lack of general legislation, and also to the fact that a number of the regional customs had their own provisions on the subject, which have become elaborated by the judicial law. With his practical bent, Jousse has thrown light upon almost all the possible cases.'^ Quite as extensive a field is covered by falsification (" faux ") — a term used to designate both forgery and crimes of fraud. Falsification embraces " every act calculated to destroy, inii)air, or obscure the truth, to the prejudice of another and with intent to deceive him." A first class consists of falsification in the exer- cise of a public function, for which the punishment may be any- thing from the death penalty down, in the discretion of the court. *^ Jntisse, np. ril.. Ill, pp. 561-573. 60 Ibid., HI, pp. ()r)S-()()(). " iiifi^^ IV, pp. 1()()-2Ü7. 287 §59e] THE RENASCENCE AND THE REFORMATION [Pakt I, Title 1 1 1 rrivutf I'ulsiHcatioii includes the forgery of documents and fal- sification generally by word or act (wherein is embraced the giving of false weight or false measure). Its punishment is, in part, according to the customary law, in part, discretionary ; and con- sists of fine, banishment, or corporal chastisement,^^ Perjury (false witness) is the subject of especial punishment. According to the Ordinance of 1531, the death penalty is to be applied. In practice, however, a modification of this rule had come about, and the punishment was in the discretion of the court. False witness against the accused in a criminal proceeding called for a severer penalty, and was visited with the punishment to whicli the person falsely accused had become liable. '^^ Fraudulent bankruptcy is treated by Jousse as a species of theft. By the Ordinance of 10 October, 1536, bankruptcy, when accompanied by fraud and wrong-doing (" fraudes et abus "), was made punishable by " amende honorable ", corporal chastisement, the " carcan ", and the like, according to the nature of the offense. Severer measures were prescribed by the Ordinance of Orleans "^ and Blois ; ^^ and an Edict of 1609 appointed the death penalty. Although this last provision was repeated in the Ordinance of Commerce ^^ (1673) and in a Declaration of 1716, it was not observed in practice ; the provisions of the Ordinance of 1536, however, remained in force. Accomplices incurred a fine, in certain cases a corporal chastisement.'^^ Usury, i.e. " any illicit gain derived from money in virtue of a prior agreement," still remained a crime. Nevertheless, a distinction was made between usury and interest. The exac- tion of a lawful rate of interest was permitted ; this, under the Ordinance of February, 1770, being fixed at 5 per cent. (" au denier vingt ").^^ The various questions are dealt with by Jousse in considerable detail. By the Ordinance of Orleans, the ^- For the particular cases, see Jousse, op. cit., Ill, pp. 341-416, where they are exhaustively considered. ^^ Jousse, op. cit.,'lU, pp. 411-442. " Art. 142. 55 Art. 245. 56 Tit. XI, Art. 12. " Jousse, op. CiL, III, pp. 254-200. 5ä It is interesting to note the steady decline of this legal rate. By the Ordinance of 1254, it was fixed at 4 sols on the livre (20 per cent.) ; by that of July, 1315, at 15 per cent. It later became 10 per cent, ("au denier 10"), and so remained until 1507. Its subsequent course was as follows: 6y per cent, ("au denier 16") by the Edict of July, 1601; 5^ per cent ("au denier 18") by the Edict of March, 1634; 5 per cent, ("au denier 20") by the Edict of December, 1665 ; and 4 per cent, ("au denier 25") by the Edict of June, 1766. See Jousse, op. cit., p. 269. 288 Chapter X] FRANCE, FROM THE 1500 S TO THE REVOLUTION [§ Ö9e punishment of usury was corporal chastisement and confiscation of property — a provision frequently reenacted, but mitigated in practice. ^^ The last division (and one of a subsidiary character) is that of insults. Here was included every species of insulting language or conduct, in general, and, in particular, " every offense which a man occasions to his neighbor through a contumelious motive " ("motif de mepris "). The latter is of three sorts: insult by word of mouth, insult by writing, and insult by conduct. In the case of oral insults, a retraction is required, and the offender is often compelled formally and publicly to vindicate the honor of the insulted person, either by lodging a document in the judicial record-office, or by appearing in open court, with uncovered head, and there making oral acknowledgment of his wrong-doing. If the insult is offered by a person of low degree to one of higher, then, in addition, the culprit is condemned to imprisonment or such other punishment as the judge shall determine. In other instances, there is a fine in the nature of a judgment for ci\il damages in favor of the injured person ; in others again, a penal fine ; and, in very serious cases, even infamous punishments, such as " amende honorable " and banishment. As to insults by writ- ing, the law is the same, except that the defamatory libel is sup- pressed, or is torn up in public. For every sort of insult by con- duct (" real " insults) the penalty depends upon the circumstances, the extent of the injury, the person injured, the place, or the nature of the act, and varies from mere public censure {" blame ") to " afflictive " and infamous punishments. There is, besides, an award of damages to the injured person. The different cases are gone into quite fully by Jousse.*^^ It is to be noted that he includes arson and " violatio sepulchri " under the present head. Especial mention is deserved for defamatory libels and the enact- ments relating to offenses of the press. Printing, ])ublication, or sale of matter amounting to a defamatory libel was forbidden by the Ordinance of 17 January, lOöl, and many subsequent enact- ments, under penalty of whipping and, in case of repetition, death. For falsely stating the place of publication, as well as for printing in foreign countries, the Ordinance of 10 September, 1572, •'^ pre- scribed confiscation of the book and a fine to be fixed at the court's 59 Jmisse, op. ell., IV. pp. 2G7-284. 6« Op. cit.. Ill, pp. 573-671. "1 Art. 10. 289 § 5i)(J THE RENASCENCE AND THE REFORMATION [Part I, Trn.E III discretion. Tlie Ordinance of Moulins •"'- prohil)ited the publica- tion of any book without permission of the Crown ("sans privi- lege du Roi "), punishing infractions with confiscation of property and corporal chastisement; and, by the Ordinance of 11 Decem- ber, 1547, no book dealing with religious matters could be printed or sold unless first examined and authorized by the doctors of theology, the punishment in this case being confiscation of " body and estate." The Press Law proper is the Edict of August, 1GS(3, which consolidated all the preceding enactments. Later enact- ments merely carry out the plan there laid down. Thus, the Regu- lation of 28 February, 1723, provided that any one guilty of cir- culating writings against religion, the King's service, the good of the State, the purity of manners, or the honor and reputation of families or individuals should (in addition to the punishments prescribed by existing law) incur the forfeiture of all privileges, rights, and offices. So, too, the Declaration of 10 IMay, 1728, punished the same offense with the pillory, banishment, and severer punishments. Likewise, by a Declaration of 17 April, 1757, it was enacted that the author of any writing " tending to give offense to religion, to agitate the minds of the people, to assail the authority of the King, or to disturb the peace of the State will be punished with death " ; ^^ further, that all who take part in its printing, publishing, or dissemination are to undergo the like punishment ; ^^ and, finally, that failure to observe the formalities indicated in the Ordinances shall entail a punishment which may extend to consignment to the galleys for life.^^ And Jousse does not hesitate to add that all who have authorized or counselled the publication must be punished in the self-same manner.^^ This concludes the list of crimes in the true sense of the word. There were many other offenses of a special nature such as those relating to the forests, to hunting, and to fishing, as w^ell as an entire group of marine oft'enses which are dealt with in the Ordi- nance of the Marine. Examination of these, however, would throw but little light on the general features of the criminal law of this period, and, consequently, does not require us to prolong this survey. «2 Art. 78. ^ Art. 1. « Art. 2. «« Art. 3. ^^ Op. cit.. Ill, pp. 651, el seq. 290 Chapter XI OTHER COUNTRIES IN THE löOOs-lTOüs (Scandinavia, Switzerland, Netherlands) A. Scandinavia § 59/. Scandinavia in the period 1500 s -1700 s. Private Revenge Prohibited ; Outlawry ; Penalties ; Legislation during the 1600 s; ^ Capital Of- fenses ; Extension of Pub- lie Jurisdiction ; Moral Conditions. §59/. Scandinavia during the period 1500 s-1 700 s. — The 1500 s. The legislation of the first half of the 1500 s exhibits an increasing progress in penal law to the conception that the end to be sought was not the securing of private redress and damages so much as the maintenance of public order and safety. The system, however, was not essentially changed. More severe penalties were prescribed for di\'ers ofienses with a \iew of enforc- ing more effectively the duty resting upon the public authorities. The reason set forth for these drastic enactments was the lawless conditions prevailing during the internal strifes and wars; and the crimes especially dealt with were murder and gross personal violence, which frequently passed unpunished. Private Vengeance Prohibited. — It is apparent, however, that the basic principles of the earlier provincial Laws remain. The system of fines, which had grown out of the ancient custom of tak- ing the law into one's own hands, was preserved. Personal feud and vengeance, while not allowed, still served to distinguisli such an act from one committed on an ofVenseless man, and subjected the doer to outlawry or forfeiture of life in excejitional cases only. i[The first four headings of this Section continue Stemann'.s " History." etc., already cited in note 1 to §39«; for this author, see tlie Editorial Preface. — Ed.] 291 § 59/] THE RENASCENCE AND THE REFORMATION [Part I, Title HI The Laws of Christian II pcnaHzcd witli death all cases of de- liherate homicide ; if the defendant eseaj)ed, he and his companions in the act were outlawed ; any one of them, if apprehended, was to be executed by the royal official ; but any one could slay him with impunity ; to harbor him was cause for outlawry. For the taking of life by accident or in self-defense, peace must be bought by fines to the kin and the king ; the amounts w^ere to be determined by the " Land-judge " and were exacted from the defendant him- self, his kindred not being bound to contribute ; attacks upon the latter by the kinsfolk of the deceased were prohibited. These general rules were followed by succeeding kings. No new penal principle developed ; the chief aim being more effec- tually to enforce the rules of the earlier codes. This is seen in the Ordinance of Frederick I for Fyen, of May 18, 1523, and the Decree of Christian III for Kopenhagen, of 1537, which attribute the frequent cases of murder to the practice of private vengeance, as well as to the custom for the slayer to obtain release by paying fines to the kin of the deceased (to which his relations contributed) without the cause reaching the law's tribunal. The chief purpose of these enactments, as well as those of 1547, 1551, and 1558, was, therefore, the abolition of the " Haevn " (or feud) the coercion of a resort to court proceedings. These laws also prescribe death for homicide (except where done by accident or in self-defense), whether the offender was caught in the act or declared outlawed and later apprehended ; his per- sonal estate was forfeited, half to the king and the other half to the heirs of the deceased ; the offender's relations being declared exempt from contribution or vengeance. Where the fugiti\e made good his escape, or purchase of peace by money was offered him by the king and kin, his relatives w^ere to produce two thirds of the legal " man-fine " to the victim's heirs, as provided in earlier legislation. Vengeance on kin was prohibited in all cases, and an old rule was revived prohibiting reconciliation without legal pro- cedure. But these provisions were limited to manslaughter com- mitted by yeomen (" Bonde ") or burghers (" Kj(/)pstadmand ") and not applicable to the nobility. The latter preserved the right of private vindication ; and charges involving the life or honor of any of its members came only under the jurisdiction of the king and the high court of the realm (an exception being noted in the Kallundborg Decree of 1576, ch. 13, providing the death penalty for a nobleman who should deliberately kill his brothers). 292 Chapter XI] OTHER COUNTRIES IN THE 15ÜÜ S-17ÜU s [§59/ Outlawry still ensued for unmuletable offenses, or on failure to produce lejijal or promised fines. The provision in the Ordinance of Erik Glipping of 1284, was reenacted in the Decrees of 1547 and 1558, outlawing any one who should fail to pay a forty-mark or other important fine or secure a bondsman therefor within six weeks after sentence. Outlawry, however, was put into practice chiefly for crimes subject (under the revised laws) to capital punish- ment where the felon was not caught in the act and escaped during the period of time allowed after sentence. This period, which had varied from a day and a month to three days and three nights, was now fixed at a day and a night ; if caught thereafter, the death penalty was exacted. The second p]cclesiastical Law of Christian II authorized any one to kill a fugitive murderer; and while there is a decision of the House of the Lords, of L537, acquitting the defendant from ])unishment for such an act, the Decrees are silent on the subject, and it is doubt- ful if outlawry operated to this extent any longer. By the Act of 1537, it behooved the royal bailiff to " mete out justice on his neck " where the murderer had not been seized in the act l)ut was sworn to be outlawed, and he was later charged with the duty of pursuing and apprehending the fugitive. ^Yhile these Decrees do not expressly authorize every jierson to seize the outlaw, there is recorded a judgment of the Viborg Land-Thing of lö7(), accord- ing to which all present at a " Thing " where a murder was com- mitted were in duty bound to seize the criminal ; and this rule was later made general. Where reconciliation w^as made and fines paid, the offended party delivered a " letter of release of feud " (like the earlier " Tryg- deed," ante, § 39a) whereupon the royal official {)roclaimed " the peace of the king upon him." Where in particular cases there was a doubt as to the manner of punishment, or aggravating or extenu- ating circumstances appeared, the defendant was referred to the " king's favor or disfavor " and his case was decided directly by the ruler. Penalties. — The ecclesiastical jurisdiction had been transferred, at the time of the Reformation, to the State ; and this led to some changes in penalties. Thus, the Decree of 1537 prescribed death for a spouse guilty of adultery, and also for the paramour, this penalty being later limited by the statute of 1539 to a third offense, and later laws not mentioning the third party. For seduction, fines were imposed, payable to the oll'ended party and the king 293 § 59/ ] THE RENASCENCE AND THE REFORMATION [Paut I, Title III (as theretofore to the bishop), and repeated offenses later involved the death penalty. In the Ordinances of Frederick II, of 1582, incest and bigamy are referred to in connection with adultery, but no special section covers these crimes, while the penalties were made the same as for adultery under Christian IV, viz., forfeiture of estate, exile, and in case of failure to depart, death. False swearers were deprived, under Christian II, of the two fingers raised for the oath ; the later Act of 1537 termed this a mode of warding off the wrath of Deity ; this punishment was reserved by later acts for repeated perjuries deliberately made. Witchcraft would seem, in the Ecclesiastical Law of Christian II, to have already involved the death penalty, if actual injury had been inflicted upon some one ; it also punished with whipping a consultation with witches. While the Decrees generally do not expressly deal with this offense, the stake was in use, as is shown by divers judgments under Chris- tian IV (1617) ; necromancy and superstitious practices were punished with forfeiture of goods and exile. By sundry other amendments to the penal laws, public punish- ments were imposed for offenses which had previously been subject to fines only, as well as for misdemeanors which were not viola- tions of any individual right but involved the moral and public order. There was a more general extension of public prosecution ; and express declaration is made of the general duty of the public officials to watch o^'er the enforcement of law. Legislation in the 1600 s.^ — The internal disorders which devas- tated Denmark after the death of King Frederick I led to the en- actment of severer statutes for the punishment of crimes. With Christian Ill's ascent to the throne the government acquired increased authority and undertook to extend to the entire kingdom the operation of the penal laws in force in market towns. The crime of murder, hitherto relegated largely to the sphere of private vengeance, was now made subject to public prosecution. The chief obstacle was the insistence of the nobility on the preservation of its privilege to settle its feuds with the armed hand. A measure of considerable progress aimed against this privilege was the Proc- lamation of ]\Iay 1, 1618, inhibiting generally duels with fire- arms. The privileged class, however, continued to exercise its 2 [This paragraph suras up §§ 163-165 of J. L. A. Kolderup-Rosen- vinge's "Grundrids af den danske Retshistorie" (Copenhagen, 3d ed., 1860), together with the notes thereon by J. E. Larsen in his "Fore- ItBsninger over den danske Retshistorie", §§ 163-165 (Copenhagen, 1861)» — Ed.] 294 Chapter XI] OTHER COUNTRIES IN THE 15ÜÜ Ö-17Ü0 S [§ 59/ powerful influence in the government, as is evidenced by its issu- ance of " letters of release of feud ", binding the kin of the person killed, without the cognizance of public authority, during the reign of Christian lY. A notable feature in the criminal legislation of this period, is that, as a motive for ordaining punishment for crime, in addition to se- curing the order of the State and preventing crime, it professes to aim at diverting the wrath of God, and his punishment of the people. Offenses penalized by cai)ital punishment were: (1) deliberate murder, committed by those not of the nol)ility ; (2) rape; and (3) adultery. Offenses against the administration of justice were heavily penalized — unrighteous judges, clerks forging the records of the "Thing", and perjurers. While accidental acts were no longer generally held criminal, there was nevertheless retained in the INIanor Act of Frederick II the ])ro vision of the Law of Erik of Pomerania, prescribing a barbarous penalty for negligently causing a conflagration ("if damage result through the neglect of any one from fire and light, then he shall immediately be seized and thrown into the same fire, if he be caught in the act "). Im- prisonment at hard labor at Bremerholm or in the House of Cor- rection became frequent punishments under Christian IV. The jurisdiction of the State authorities now embraced that of the former ecclesiastical courts, and was extended to include many acts not involving wrongs to individuals. Among the offenses now recognized were witchcraft, vagrancy and beggary, incest, concealment of child-birth, and relapse into the Catholic creed. Moral conditions during the 1500 s had been at a low ebb ; the priesthood, monks, and nuns being especially depraved. At the Council of Constance it is recorded that over seven hundred " pleasure-maids " were present at the gathering. Even the Reformation effected little change, and improvement came only with the spread of knowledge. Gluttony, drunkenness, libertin- ism, and gross living were common. Private feuds and self-redress were frequent. A large niunber of persons were executed for witch- craft, towards the close of the 1600 s; and among these victims of superstitious creeds are found noble ladies, one of whom, Chris- tence Kruckow, was charged with having instituted at the univer- sity a " Stipendium decollatir virginis." The dominant principles in the Sivcdhli-Finni^s'h pnidl rodi'.s^ during this period were the following : 295 § 59/] THE RENASCENCE AND THE REFORMATION [Part I, Title III (1) The " lex talionis " is the highest justice according to the Law of God, i.e., the Mosaic Law ; (2) The legislator shall en- deavor to intimidate miscreants from criminal actions by the most severe penalties ; (3) The legislator shall seek to soften the wrath of Deity and save the realm from his vengeance l)y the most severe punishments. Regarding the first proposition, the Church rules were not only viewed as the sources of the national religion, but also, especially the principles of the Old Testament, were deemed positive legis- lation of Divine origin, binding on all nations in all ages. The adherence to the second rule is amply evidenced in penal history, notable in the Manor Laws, the military law, and special ordinances. Thus, Gustavus Adolphus prescribed death for the killing of a stag or a swan. The doctrine contained in the third principle was followed in many enactments, such as the patent regarding felonies of May 1, 1653, the royal statute regarding fines and breaches of the Sabbath (October 2, 1665), and the law of infanticide (March 1, 1681 and November 15, 1684). Likewise, it appears in the prosecutions for witchcraft during the close of the 1600 s, wherein the " law of God " was enforced without mercy and the witches burned, in order to secure immunity from " the rage of Satan and his cohorts " and to divert the wrath of the Lord from the realm. Xor was this idea confined to offenses against morals and religion ; it is notable in the act regarding duels (August 22, 1682). In course of time, however, the general conscience came to dis- approve of these harsh punishments, and while the provisions still lingered in the books, milder penalties were employed in ac- tual practice. The Penal Code of Queen Cristina introduced a system more in accord with this common sense of justice and actual practice. A thorough reform is visible in the Code of 1734 — the labor of a century. Nevertheless, the dominant principles re- mained unchanged, although the principle was now recognized that the penalty should aim to be only a just retribution. Draconic punishments still remained ; capital punishment being prescribed in sixty-eight cases. INIarking an epoch in the development of penal law, is the act of the Swedish Parliament, January 20, 1779, expressing that new humane tendency which became dominant during the latter half of the 1700 s. Gustavus III was well versed in the "enlightened " philosophy of the 1700 s ; and it had been his genuine desire to in- 296 Chapter XI] OTHER COUNTRIES IN THE 1500 s-1700 S [§ ö9g troduce an even more thorough reform than that which was em- bodied in the statute of 1779. B. Switzerland ^ § 59^. Switzerland in the 1500 s and the 1600 s; the Ref- ormation Period. 59h. The 1700 s; the "Auf- klärung" Period. § 59<7. The 1500 s and the 1600 s; The Reformation Period. — Whether the Carohna ever had force in Switzerland, either formally or substantially, opinions have differed widely. Most of its pro- visions dealt with procedure, and therefore would not be appli- cable. No doubt it was more or less used by magistrates for their guidance. In matters directly involving the peace-law, the Caro- lina in Germany displaced the former rules ; but in Switzerland the peace-law was little affected by it. For example, the law of self-de- fense and self-redress was restricted by the Carolina to cases of life and limb, but in Switzerland preserved its larger scope. Again, the attempt as an independent offense was broadly recognized in the Carolina, but was not recognized in Switzerland. The Reformation, of course, affected the criminal law in Swit- zerland much as it did in Germany, even in the cantons which re- mained Catholic. This period of law shows a stern and even harsh spirit of repression, and is in many respects a retrogression. Reli- gion, morality, and authority are its marked elements. Offenses against religion and creed become nimierous, as in Germany, and are harshly punished. Blasphemy, adultery, incontinence, and sinful acts generally, become prominent in criminal justice. Church and State mutually assist in the zealous task. There were, to be sure, differences observable tlue to local condi- tions and personalities. Calvin at Geneva, Zwingli at Zürich, Luther in Germany, had dominant influence, each in his own way. Calvin introduced a terrorist ecclesiastical administration, em- phatic in its Puritanism. Zwingli's nature was liberal and demo- cratic ; his heart was with the connnon j^eople, and he led a struggle against the privileged aristocratic families. Luther was in the confidence of the German territorial princes, and their ambitions were closely related with the success of tlie Protestant faith. In > [These two sections are by the Editor, using Dr. Pfenmnckk's treatise as authority ; for this author and work, see the Editorial Pref- ace. — Ed.] 297 § 5!)/i] THE RENASCENCE AND THE REFORMATION [Part I, Title III Germany, but not in Switzerland, the Iloman law was introduced })()(lily (partly by lej^islation, i)artly through the professionally educated judiciary). With it came the doctrine of the ruler's authority as the all-sufficient basis of law. This culminated in the exaltation of judicial discretion as the measure of crimes and pen- alties, and of governmental absolutism as representing divine authority in the repression of crime and sin. From the excesses of these doctrines the Swiss cantons were relatively exempt. Nevertheless, Swiss criminal law exhibited the general features of the times, — a harshness and cruelty in the penalties, — an em- phasis on the sinfulness of crime, the wrath of God for a people's offenses, and the God-commanded duty of obedience to authority. In Geneva, Calvin's censorial laws, Draconian in their strictness and arbitrariness, were so harshly enforced that at last the town rose and expelled him. But his spirit still dominated. Not until the all-European reaction of Rousseau's time did that community tear itself free from its intellectual slavery and recover its old Swiss spirit of freedom. In his " Lettres de la Montagne," Rousseau describes the abnormal authority of the Geneva Council in crimi- nal matters : "Its power is absolute in every respect. It is prose- cutor and judge. It sentences and it executes. It summons, arrests, imprisons, tries, judges, and punishes, — itself alone does all." And yet this stern and intolerant system had its due place in the history of progress. It led in a great movement of regeneration in morals and the building up of State authority in criminal law. After the political anarchy and the riotous pleasure-loving excesses of the Middle Ages, it signalized a natural reaction towards orderly government and beneficent asceticism and self-castigation. One of the historians of Bern's laws thus sums up the period: " It was not a mere matter of new religious dogmas, but of the renova- tion of the moral life, personal and national." § 59/f. The 1700 s; the "Aufklärung" Period — ^ To recon- struct a picture of the criminal law of the 1700 s is not easy. The sources were multifarious ; Roman law, Canon law, and the Caro- lina ; practice-books, judiciary acts, local custumals, — all these were found more or less in every canton. Much of the medieval law persisted, in name at least. The Territorial Law-Book of Glarus, as late as the issues of 1807 and 1835, still preserved parts of the peace-law' dating back to the 1400 s. In Schwyz as late as 1700 w^as found the custom of delivering over the homicide's body 298 Chapter XI] OTHER COUNTRIES IN THE 1500 S-1700 S [§ 59/i to the victim's family. In Glarus the last wager of battle and the last witch-trial took place only in 1707. But the crudest of the old penalties had fallen into disuse. In Zürich, empaling and immuring had not been inflicted since the 1400 s, nor drowning since 1615 ; and by the 1700 s beheading had become the usual mode of execution. The figures of executions in Zürich and Schwyz show plainly the diminishing harshness : in the 1500 s, 572 executions ; in the iboO s, ;3;3G ; in the 1700 s, 149. The modes of execution are equally significant : in the 1500 s, by fire 61 , by gallows 55, by drowning 53 ; in the 1600 s, by fire 14, by gallows 10, by drowning 9 ; in the 1700 s, by fire 2, by gallows 16, by the wheel 1, by the sword (beheading) 106. j\Iost of the changes towards progress came about by judicial practice ; express legislation is found for only the extremest de- fects ; in the Bern Law-Book revisions from 1753 to 1793 is almost nothing of importance. But though legislation was not active, public opinion, as reflected in the literature of the period, was fully responsive to the new thought of the times. The " Aufklärung " period, here as in Germany — that movement of the leaders of educated thought to banish popular error and superstition and to introduce liberal thinking and " enlightenment " — showed its influence in criminal justice. The all-European agitation against torture received a welcome here and showed early re- sults. Montesquieu's influence was widely felt. The beneficent possibilities of education found some of their leading apostles in Switzerland. And as the new period of the ISOOs arrived, ushered in by the French Revolution, what were some of the principal features in which the survival of the traditional ideas of Swiss criminal law might still be seen ? 1. The old peace-law still preserved its rules for the citizen's duty to intervene by parting the combatants and giving informa- tion to the court. The principle of honor in word and act was still a living one. Stealing and fraud were still more heavily jHMialized than wounding or even manslaughter ; in Schwyz two men were hung for stealing and fraud as late as 1822. The absconding debtor was regarded as a thief. Gambling, the squandering of family property, shirking of labor, and the like, were strictly repre- hended. The modern point of view, which condones or admires smart dealing, tricky business methods, and clever evasion of obligations, so long as one keeps out of jail, was as yet nowhere 299 § 59h] TUE RENASCENCE AND THE REFORMATION [Paut I, TiTLE III accepted in Switzerland. The j)rimitive notions still prevailed that one's word should be as good as gold, — " honor with the word and with the sword." The Territorial Law-Book of Glarus de- clared that he who fails to pay his debts shall no longer })e trusted in his word ; the bankrupt was " honor-less " ; and in this canton, it is recorded, so firm was the sense of honor that ordinarily neither note nor receipt was given when money passed. 2. In some of the cantons a mildness of penalties, remarkable for this period, is observable. In Uri, the death penalty was re- stricted to murder and arson. The wrongdoer is often described in the judgments as only a misguided man ; the intercession of his family is given weight ; the sentence is modified " in view of the circumstances of the case." No doubt this lenity may be attrib- uted to the (nowadays often criticized) tendency of lay judges to undue weakness in imposing extreme penalties ; and in these primi- tive cantons the tribunals were composed sometimes of as many as 200 or more citizens. But there is a general atmosphere of primi- tive patriarchalism, — benevolent, and yet crude in its methods. Flogging remained long in use as a judicial penalty ; a notorious case of excess, in Uri, as late as 1865, aroused national resentment, and evoked even foreign comments on " the barbarous justice of Swiss democracy." Other penalties also serve to illustrate the simplicity of a primitive community, — confession, church-pen- ance, listening to an appointed sermon, pilgrimage. And equally suggestive were the sentences to be imprisoned by one's father, to be watched over by one's friends, or to abstain from wine or social company. 3. Nevertheless, the path w^as already prepared in many ways for accepting the new ideas of Napoleon's and Feuerbach's criminal codes in the next century. The old classical Sw^iss principle of individual manhood as its own defense, " honor and the sword," had in many cantons gradually become an anachronism. Habit- ual weapon-bearing, as a general custom, had long disappeared. The traditional right of self-defense and self-redress was strictly limited. The individual had become overshadowed by official authority. The peace-law system \vas antiquated and inefficient ; and with it would disappear the kernel of the old law. A killing while under a special peace might still be legally murder ; but the community was ready to accept a new point of view as soon as the law should formally sweep away the relics of the old system. For most of its details w'ere plainly relics of the past. Chiefly in form 300 Chapter XI] OTHER COUNTRIES IN THE 1500 S-1700 S [§ 59i only was the criminal law in contrast with the coming ideas ; the community was substantially ready for them. C. Netherl,\nds ^ § 59i. Sources of Criminal Law in the Netherlands before the 1500 s. § 59/. The Roman Law and the Carolina. § 59A-. General Features of the Criminal Law from Later Medieval Times to the 1700 s. § 59i. Sources of Criminal Law in the Netherlands before the 1500 s. — After the fall of the Carolingian monarchy, there suc- ceeded an epoch about which little is known. In all probability, the common law together with the King's law, in altered and perfected form, still prevailed in e very-day usage, and became pre- dominant as active law through its administration by the justices' courts. With the exception of the written sources of law, in which the common law found sanction, the most important sources of the common law in the 1500 s were the collected customs and usages. The written law began developing in some sections of Netherland in the 1000 s, in others later, in the shape of charters, privileges, liberties, patents granted by the counts or other territorial lords, as well as municipal and rural laws, decisions, ordinances, court regulations, market privileges, etc. In the field of criminal law, these written sources originally included, as a rule, the assessments of fines ; furthermore, they corroborated the common law as re- garded the ordinary crimes, or they fi.xed penalties for newly de- fined offenses, e.g., the clipping of money, begging, cattle-stealing, etc. Some of these rural and municipal laws for that period even contain fairly complete codifications of criminal law. For information regarding the law in earlier or later times, the investi- gator should not overlook the law books, explanations, or compila- tions such as the invaluable " Law-book of Briel " by Jan Mat- thyssen, of about 1400, and the "Rural Law of Overyssel " by Melchior Wynhoff in 1559. The Canon criminal law, although it did not prevail directly in the civil courts, became powerful in more ways than one. It in- fluenced the people to regard crime as a sin (along with the " de- licta ecclesiastica ", the " delicta civilia " and especially the 1 [The ensuing three sections are translated (with a few omissions) from §§ .3-11 of Professor G. A. Van Hamici/s" NetheHands Criminal Law." For this author and work, sec the Editorial Prefuci'. — Kd.] 301 § 50j] THE RENASCENCE AND THE REFORMATION [Part I, Title III " mixta "), a\)j\ TIIK RENASCENCE AND THE REFORMATION [Pakt I, Title III nu'iits), Uoinan law, ecclesiastical law (partly canonical and Mosaic in character), and lastly, authoritative writers. The Constitutio Criminalis Carolina, and the Criminal Ordi- nances. — Two gciicral onliiiaiiccs regarding tlic criniinai law must be noted, the Constitution Criminalis Carolina (C.C.C.) of 15:^2, and the Criniinai Ordinances of Philip II of 1570. It has been rightly remarked that " in judging of the authority of these ordinances in the several provinces, two questions in particular must he considered, i.e., to what extent the legislative power of the one who gave the ordinances had developed in each province, and whether the formalities required to make the ordinances bind- ing have everywhere been complied with " (Fockema Andrcjc). The Carolina (" Keyser Karls des fünfften und des hey 1 igen Römischen Reichs peinlich Gerichtsordnung ") is one of the most remarkable of all the relics of historic German criminal law, on ac- count of its origin, contents, and authority. Instituted in 1530 and 1532 by the German diets of Augsberg and Regensburg, it was the outcome of the necessity for combating the many abuses in administration of justice and the lack of knowledge of the pre- vailing law on the part of the unlearned judges of that period. The German Empire was already fortunate in the possession of the Bambergensis (1507, " mater Carolinse "), an excellent model containing a systematic collection of Germanic and Roman-Canon criminal law, which had become established under the authority of the Italian criminalists. It was compiled, in part, by Johannes Freiherr of Schwartzenberg and Hohenlandsberg (1528), who also participated in the writing of the Carolina. The Carolina is an ordinance of 219 Articles, providing for the administration of justice, and largely made up of rules of proced- ure. Certain provisions of the substantive law of crimes are in- cluded in Arts. 104-180, in which may be found not only defini- tions of various crimes and of a great variety of penalties, but also an elaboration of certain general doctrines, e.g., self-defense, com- plicity, attempt, and extent of responsibility. While it creates little new law, it sets forth the existing law in intelligible language. It continually advises in doubtful cases the invoking of the " counsel of the jurisconsults ", thus leaving every opportunity for the continuing development of the practice. Though the ordinance (through the " Clausula salvatoria " of the Preface) contains a concession to particularism, and though it did not for- mally carry the weight of absolutely binding general law, yet, be- 304 Chapter XI] OTHER COUNTRIES IN THE 1500 S-1700 S [§ 59j cause of its own worth and the additional value which it acquired through use by authoritative writers, it remained the foundation of the general law of crimes in Germany. In certain German States it continued to prevail until 1871, when the code of criminal law for the North German Union was introduced. It was a debatable question, even in the latter part of the 1700 s, whether this ordinance, intended for and prevailing in the Em- peror's German States, had any effect in the Netherlands, particu- larly in the province of Holland. It is pretty generally under- stood, however, that not only was it never formally introduced, but that no attempt was made to do so. Nevertheless, it had consider- able influence, — partly because some courts acknowledged its authority, and partly because some of the criminalists of the 1700 s (particularly J. S. F. Boehmer, author of the " Meditationes ad C C. C", 1770), who took it as the basis of their views, influenced the administration of justice in this country. A similar controversy had been waged over the binding au- thority of the Criminal Ordinances of Philip IT, of the 5th and 9th of July, 1570, the former treating of the measure, the latter of the method, of Criminal Justice, and both extensively commented on by the Dutch writer Wigele Van Aytta. The basis of the dispute, however, was not the same in the two cases. For these ordinances were instituted by the king as lord of the Netherlands, while they were also proclaimed in some provinces, particularly in Holland and Gelderland. By the Pacification of Ghent (Art. 5), they were " suspended ", entirely, according to certain authorities, while according to others, only in regard to the provision concerning heresy ; and the Union of Utrecht did not recede from this resolu- tion. IMoreover, as the ordinances came from Philip and the Duke of Alva, and were considered to be contrary to the old privi- leges and customs, their introduction met with continuous opposi- tion on all sides ; but they were nevertheless followed in very many ])rovisions, particularly by the law courts of Holland. " During the period of the Republic, the ordinances retained a certain formal value, but they had no binding authority" (R. Fruin). Mean- while, it should be noted that but few provisions of substantive criminal law are contained in these Ordinances, and these are found almost exclusively in the first-named Ordinance ; among them being provisions in regard to crimes affecting the adminis- tration of justice, the prohibiting of private composition for of- fenses, principles regarding uniform rules of punishment, with ccr- 305 § öilA] THE RENASCENCE AND THE REFORMATION [T'art I, TlTr,K III tain (li.scrc'tioiuiry penalties specified, and a provision tiiat a person should be condemned only according to written laws, etc.- Notliinnn Bars text. — Ed.] 2 Cf. Valette, "De la persistanee de ensemble du droit civil frangais pendant et apres la Revolution de 17S9" (Melanges. Vol. II, p. 250) ; Paul Viollet, "Precis de I'histoire du droit frangais," p. 206. 315 § GOo] THE FRENCH REVOLUTIONARY PERIOD [Pa fit T, Titlk TV has completely broken with the old penal law, and that a compari- son Ix'twccn the two consists mainly in contrasts. This idea the eminent Boitard emphasized in his first chapter: ^ " Our new laws- are not, as are our civil laws, the reproduction, more or less faith- ful, more or less exact, of principles accepted in former times. In the penal law, almost everything is new; almost everything has^ felt keenly the influence of the times, the customs, and the revolutions.^"^ To be convinced of this, it would suffice to glance at the passage of Pothier ' in which the learned author sums up the criminal law of the late 1700 s. In the IGOO s public opinion had not shown itself hostile to the criminal system of the times. Its cruelty, its inequality, it;^ arbitrariness, are all deemed, by the best minds, to be necessary harshness.^ In the 1700 s, the point of view begins to change. The Revolution, with its alleviations of the penal law, was only efi'ecting reforms already ripe, because they were demanded by public opinion. How is this change of attitude to be explained ? It was due in part to the philosophic movement which marked the ' [Boitard, "Lemons sur les codes penals et d'instruction criminelle", 1st ed., Paris, 1836-9; 13th ed., 1896. — Ed.] * I am well aware that the eminent criminalist Fausfin-Helie, in his: notable preface to Boitard'' s " Le§ons sur les Codes penals et d'instruction criminelle" has vigorously disputed this judgment of the professor whose work he was editing. Nonetheless, it is substantially correct. The penal system of our modern law bears no resemblance to the penal system of the ancient law. As for the method of prosecution, it is only the irreducible minimum which has come down through the centuries. But the dross of the old system, the crimes against religion, etc., have been left out of the new law. The comments of Faustin-Helie are correct only in their appli- cation to criminal procedure, which is indeed too greatly saturated even to-day with the spirit of past times. * "Traite de la procedure criminelle," section V, § 6. ^ We must remember, of course, that the repressive methods of those days corresponded to conditions of criminality altogether different from ours. Studies of the history of criminality have made little headway ; but we have here a rich field for the historian and the moralist. From this standpoint, three facts at least seem to stand out, in the light of the information which we possess on the condition of France in the 1400 s, 1500 s, and 1600 s : 1st, Predominance of violent criminality over cunning- criminality ; 2d, Less criminal individualism than to-day : offenses are more often committed in a band or a group ; 3d, As far as we can estimate the importance of the criminality of those times, in the absence of statistics, we may affirm that the number of crimes was greater at that epoch than in our days {Berriat Saint-Prix, "Rev. etrang.", 1845, p. 461). On the state of ancient criminality: Tarde, " L'archeologie criminelle en Pe- rigord", in "Etudes penales et sociales", p. 193; Marty, "Recherches sur l'archeologie criminelle dans I'Yonne" ("Arch, d'anthr.", 1895, p. 381) ; A. Corre and P. Aubry, "Documents de criminologie retrospective "" (Arch., 1894, pp. 181, 312, 684). Cf. Clement, "La police sous Louis XIV", 1886; Flechier, "Memoire sur les grands jours d'Auvergne"; Taine, *'Origines de la France contemporaine, L'ancien regime", Vol. I, passim. . 316 Chapter XII] THE FRENCH REVOLUTIOXARV REFORMS [§ 60a second half of the 1700 s, and rested on two new itieas : reason and humanity. As early as 1721, Montesquieu, in the " Lettres persanes", had discoursed on the nature and the efficacy of pun- ishments ; then, in book G, chap. 12, of the " Esprit des lois ", he expounded the true principles of a penal law. But it was reserved for Beccaria, a disciple of Montesquieu, to give to Italy the glory of taking the initiative in the movement of reform. In all epochs Italy has been the classical land of criminal law. Of the works which contributed to make her fame in this period, none has influ- enced the ideas and usages of Europe to an extent comjjarable with Beccaria's " Treatise on Crimes and Penalties", which appeared in 1706.^ Beccaria was the first to formulate precisely the criticisms of the old system and to propose a plan of reform. lie drew up, as it were, a declaration of humanity's claims against the criminal law. Beccaria's doctrines were immediately commented upon and cle\eloped in Erance. Rousseau, to be sure, busy mainly with questions of morals and of politics, gave little attention to criminal law : he devoted to it, in passing, a word or two in his " Contrat social " ; but even this much was destined to have a great influ- ence on penal legislation. Villemain has pointed out, as a characteristic trait of the years just preceding the Revolution, " philosophy's invasion of business, of government, of law, — speculative innovation transformed into active and real innova- tion." At the head of this movement we find Voltaire ; he writes *' that he is doing nothing but read trials " ;^ and he published a commentary on the "Traite des delits et des peines." The learned ' Beccaria, "Dei delitti e delie pene", Munich, 1766, in octavo. Xo treatise on criminal law has been reprinted so often. A French edition of this work was published under the title: "Des delits ot des peines", new edition, with an introduction and a commentary by Faustiu-Helie, 1856. See "Beccaria et le droit penal, Essai", by Cesare Caiitu, trans- lated, annotated, and prcn-eded by a preface and an introduction l)y J ulea Lacointa and (\ Dclpcch (1SS(), Paris, Finnin-Didot). Tliis treatise on crimes and punishments tou(^hes or discusses thi> most important ques- tions of criminal law, but more particnilarly it opposes the death penalty and the use of torture. It secures jjroper limitations for the repressive system by the principle of reducing punishments to tlu^ severity neces- sary for maintaining jjublic safety. It may be said that the classical school of criminal law in th(> 1800 s was th(> product of this marvellous little book of Beccaria. Has this school finished its historical cyfle, as some now maintain? It is surely true, at all events, that penal law is lieing transformed, and that the ideas of Beccaria are being abandoned on many points to-day. * See what is said by Esnici», "History of Continental Criminal Pro- cedure", p. 362 [Vol. V of this Series] on the ideas and works of the three men who did most among the philosophers for the reform of criminal law, Montesquieu, Beccaria, and Voltaire. 317 § (iOaj THE FRENCH REVOLUTIONARY PERIOD (Part I, TiTLP: IV Afjulemies interested themselves in the su})ject ; they assigned for prize-essay e(>mi)etiti()ns " this important subject ", as Boucher d'Argis called it ; " among the j)rize-winners in these competitions were men who later played an important role in the Revolution, — and we note among these names, not without some surprise, Robespierre and Marat.^° The movement spread to the bench and the bar. Attorney-General Servan reproduced the ideas of Beccaria in his address of 1700 on the " Administration de la jus- tice criminelle ", which caused such a great stir.^^ The penal institutions of the time found defenders only among a few jurists who were behind the times.^- ^ "Observations sur les lois criminelles, Avant-propos", p. 8. " Robespierre, advocate at Ai-ras, was the author of a "Memoire sur le prejuge qui etend ä la famille du coupable la honte des peines infamantes", an essay awarded a prize by the Academy of Metz in 1784. Marat was the author of a "Plan de legislation criminelle" (1st ed., 1780; 2d ed., 1790). " This address is to be found in Volume IV, p. 332, of the first series of "Barreau frangais", published by Clair and Clapier. One eloquent and courageous passage in that beautiful address has become classical : "Lift your eyes", said he to his colleagues, "and see above your heads the image of oirr Lord, himself once an innocent man on trial. You are men, — be human. You are judges, — be just. You are Christians, — be merci- ful.' Men, judges. Christians, whoever you be, show consideration to the unfortunate." Cf. in Vol. Ill, p. 77, of the same work a "Memoire pour trois hommes condamnes ä la roue", published by Chief .Justice Du pat y, in which the author criticises \igorously the inquisitorial procedure and the system of legal proofs ; this memoir was, however, suppressed by a decree of the Paris Parliament, of August 11, 1786, on motion of the then attorney-general, Louis Seguier. Esniein, op. cit., p. 374, gives a sum- mary oi' this curious argument, delivered on the very eve of the Revolu- tion by a high legal official. ^ Jousse and JNIuyart de Vouglans, the two leading criminalists of the epoch, opposed the proposed reforms. The latter even wTOte a refutation of the "Traite des delits et des peines" of Beccaria, under the title: "Lettre contenant la refutation de quelques principes hasardes dans le traite des delits et des peines", Geneva, 1767. To the psychologist this work reveals a strange state of mind in the most distinguished criminalist of his time. Muyart de Vouglans ob\T[ously does not understand Bec- caria. He regards him as a lunatic (p. 22). What astonishes jSIuyart most is to find a work on criminal legislation which is not primarily a technical book devoted to positive law (p. 25). As for the proposals which he discovers in the treatise of Beccaria and which he points out with in- dignation to public opinion as so many social heresies (pp. 6 to 17), they are the very truths which were to become the a.xioms of criminal justice : equality before the law, exemption of the accused from compulsory oath, and the abolition of torture. Jousse, in the preface of his "Traite de la justice criminelle", p. 64, expressed himself thus: "The 'Traite des delits et des peines' tends to establish a system of the most dangerous kind. It reveals novel ideas which, if they were to be adopted, would do nothing less than o^•erthrow the laws hitherto accepted by the most civilized nations ; they would injure religion, morals, and tlie sacred maxims of the government." In such terms, however, men have always defended existing institutions, which they considered fundamental, and fought the reform of them. See on this point : Esmein, op. cit., p. 370. 318 Chapter XII] THE FRENCH REVOLUTIONARY REFORMS [§ 60a But none of these defenses found favor in public opinion. The legal system, even before the end of the Old Regime, itself had begun to feel the need of reform. In Russia, Catherine II had shown encouragement to the philosophers, and gave instructions for drafting a criminal code. In Germany, Frederick II and Joseph II, influenced by the ideas of the encyclopedists, had introduced some radical reforms in the cruel system then prevailing; the former had begun his reign by the abolition of torture ; the latter promulgated a penal Code in which the death penalty was omitted, save for military crimes. In Tuscany, also, the Grand Duke Leopold suppressed the death penalty. In France itself, under the same influence, partial and gradual mitigations were intro- duced into the criminal law. A royal declaration of August 24, 1780, abolished the preliminary torture. On the eve of the Revo- lution (^lay 8, 1788) an edict was issued, announcing a general reform in criminal procedure, and, in the meantime, repealing " several abuses " which pressed for a remedy : ^^ 1st, the use of the culprit's kneeling-stool was forbidden; 2d, judgments of conviction must state the reasons therefor ; 3d, the abolition of the preliminary torture was confirmed, and torture after judgment was abolished ; 4th, sentences involving capital punishment were to be executed, as a rule, only a month after confirmation ; 5th, persons acquitted were given the right to reparation for injury to repute. This edict indeed was not carried into effect ^^ ; but it showed that the reforms were ripening, and that it remained only for the will of the nation to achieve them. Public opinion revealed a unanim- ity of this sort on no others of the many questions agitated at this period. In the reports made from the various provinces to the States-General, we find already a demand for the reforms which the Constitutional Assembly was to realize, — reforms embodying the ideas of the philosophers of the 1700 s: 1st, equality, indi- viduality, and mitigation of the penal system ; 2d, suppression of discretionary powers of the judge, both in the definition of criminal acts and of the determination of punishments ; 3d, abolition of crimes against religion and morals ; 4th, publicity of procedure ; 5th, assistance of counsel ; Gth, abolition of the accused's com- pulsory oath ; 7th, duty to state the grounds for judgment, and to declare them publicly; 8th, the institution of the jury. Such, '^ The text will be found in Isainboi, "Aiicicanes lois". Vol. XXVIII, p. 527. " See on this point, Esmein, op. cil., p. 397. 319 § {M)b\ TUE FUENCII UEVOLUTIONARY PERIOD [Pakt I, Title IV in tlu'ir main outliiios, were the ideas which were to serve as a basis for the new criminal hiw.'"' § go/a The Code of 1791, and the Code of Bnunaire. — The work (lone by the Constitntional Asseml)ly in the domain of penal law was of a double sort. In the first place, it determined to place on record the new principles formulated for the penal system by the philosoi)hy of the 1700 s. In the next place, it set about real- izing these principles in the administration of justice, and codify- ing the law. The principles w^ere contained in the Declaration of the Rights of INIan, of August 20, 1789, and in a few other enactments, espe- cially the decrees of January 21, 1790, and of August 16 to 24, 1790. According to the terms of Art. 2 of the Declaration of Rights, the aim of every political society is " the preservation of the natural and inalienable rights of man." This was a principle borrowed from the theories of the " contrat social " ; its corollary w^as that the State power ought and can concern itself only in maintaining " good order " in the relations of men among them- selves. Hence, the two following consequences : 1st, As to crimes : " The law has the right to prohibit only actions harmful to so- ciety." Moreover, no person is to be interfered with on account of his opinions, even on the subject of religion, provided their expression does not in any way disturb public order. With the recognition of this sacred principle of liberty of conscience there disappeared all the prosecutions which our early lawyers called " crimes of lese majeste against God ", such as blasphemy, heresy, sorcery, etc. 2d, As to j)enalties : " The law^ shall inflict only such punishments as are strictly and clearly necessary." To harmonize the penal system w^ith these principles, the Con- stitutional Assembly strove to remove all the inconsistent features of our old criminal system. Punishments had been determined according to the judge's discretion; so the Assembly laid down, in Art. 8 of the Declaration, that " no person shall be punished except by virtue of a law enacted and promulgated previous to the crime and applicable according to its terms." Penalties had been unequal ; so the Assembly decreed, in Art. 1 of the law of January 21, 1790, " that offenses of the same nature shall be punished by the same kind of penalties, whatever be the rank and the station of '* Cf. A. Desjardins, "Les cahiers des Etats generaux en 1789 et la legislation criminelle" (Paris, 1883). See also: Esmein, op. cit., pp. 397 to 402. 320 Chapter XII] THE FRENCH REVOLUTIONARY REFORMS [§ 60b the offender " ; and Title 1 of the Constitution of September 3, 1790, gave to this principle the status of a constitutional law. Punishments had not always been personal {i.e. confined to the offender himself) ; so the law of January 21, 1790, declared that " neither the death penalty nor any infamous punishment whatever shall carry with it an imputation upon the offender's family ", since " the honor of those who belong to his family is in no wise tarnished ", and by the same Article, the relatives of the offender " shall con- tinue to be eligible to all kinds of professions, employments, and offices." The penalty of general confiscation of property was abolished. Punishment was not to outlive the ofl'cnder's death ; not only were there to be no more proceedings against offenders dying before trial, but the corpse of an executed man was to be given back to his family on request. The record of his death was in no wise to mention the mode of death. Having thus proclaimed the basic principles of penal law, it remained to give effect to them. The ensuing legislation for the system of prosecution and detection was divided into three parts, general (or, municipal), correctional, and detective; correspond- ing to the three classes of offenses, general (or, municipal) offenses, correctional offenses, and offenses against public security. To mark outwardly this distinction, the Constitutional Assembly enacted two separate Codes, one for crimes in general, the other for misdemeanors; the Penal Code of October 6, 1791, was for crimes ; the law of July 22, 1791, for misdemeanors. This system has some disadvantages, to which we shall return. The Code of October 6, 1791, is exclusively a penal code.^ It is in two parts, each subdivided into titles and sections. The first part, entitled " Sentences ", includes the general i)enal law, and is divided into seven titles. These titles deal with : 1st, criminal punishments (tit. 1), which are death, labor in chains, reclusion (in a penitentiary), confinement (shutting up the offender in a lighted place without chains or bonds), detention, transporta- tion, civic degradation and the " carcan " ; 2d, aggravation of pen- alties, applicable to second offenders (tit. 2) (the recidivist first suffers the ordinary punishment inflicted for the new crime which he has committed, and is then transferrec. for the rest of his life to a place appointed for the transportation of criminals) ; 3d, the manner of enforcing sentences against those who fail to appear for trial (tit. 3) ; 4th, the legal consequences of sentences (tit. 4) ; ' Such is, moreover, the name under which it has always been liuown. 321 § i>{)h\ THE FRENCH REVOLUTIONARY PERIOD [Paht I, TiTLE IV 5tli, a^H' of the ofl'ender, as afrcctinj^ the nature ami duration of the puiiishnieut (tit. 5) ; 0th, periods of limitation for erimes (tit. ()) ; 7tli, the rehabilitation of convicted offenders (tit. 7). The second part of this Code, entitled : " Crimes and their punish- ment ", embraces the definitions of specific crimes, and is sub- di\ided into two titles ; the first deals with crimes and attempts against public interests, the second, with crimes a^^ainst individuals. Crimes against public interests include: 1st, crimes against the external safety of the State (section 1) ; 2d, crimes against the internal safety (section 2) ; 3d, crimes and attempts against the constitution (section 3) ; 4th, offenses of individuals against the respect and obedience due to the law and to the authority of officers of the law (section 4) ; 5th, crimes of public officers in the exercise of powers entrusted to them (section 5) ; 6th, crimes against public property. Crimes against individuals are sub- divided into : 1st, crimes and attempts against persons (section 1) ; 2d, crimes and misdemeanors against property (section 2). This second part of the Code ends w^ith a third Title (which could better have been placed in the first part) dealing with the rules for accomplices, joint offenders, etc. The law of July 17 and 22, 1791, deals with jurisdiction and prosecution, but also defines and classifies municipal and correc- tional misdemeanors and the punishments applicable to them. For these offenses it is both a code of procedure and a penal code. In the penal part, municipal misdemeanors are enumerated, with the punishments applicable. Correctional misdemeanors are grouped under five great divisions. " Misdemeanors punish- able by the correctional courts ", it provides (tit. II, Art. 7), " shall be : 1st, misdemeanors against good morals ; 2d, public disturb- ances of the exercise of any religious cult ; 3d, insults and serious violence to the person ; 4th, disturbances of the social welfare and of the public peace, by begging, riots, mobs, or other misdemeanors ; oth, the attempts against the property of individuals, by damage, larceny or ordinary theft, swindling, and the opening of gambling houses where the public is admitted." To these two laws there was added, four years later, the " Code of misdemeanors and punishments ", of the 3d Brumaire, year IV (October 25, 1795). It was drafted by ^Merlin - and, after - A commission of eleven members had been appointed under a decree of 25th Fructidor, year III, to present a draft for a police and safety Code. Althougfh ISferlin did not officially belong to this commission, he «as, however, entrusted by it with the preparation of this draft. He 322 Chapter XII] THE FRENCH REVOLUTIONARY REFORMS [§ 606 two sittings only, the Convention accepted it, with httle ciuestion. This Code, which is the first to contain a system of Articles in an uninterrupted series (1 to 646), was primarily a code of criminal procedure ; penal substantive law occupies only a limited place. Book II, entitled " Administration of justice ", contains several provisions for offenses of disrespect to constituted authority (Arts. 555 to 559). In Book III, entitled " Punishments ", the only topics are: 1st, a more precise classification of the various kinds of punishments into ordinary police, correctional, afflictive, and infamous punishments (Arts. 599 to 604) ; 2d, an enumera- tion of the ofi'enses liable to ordinary police punishments (Arts. 605 to 60S) ; 3d, definition of certain crimes against the internal safety of the State and against the constitution (Arts. 612 to 646). It ends with a confirmation of the law of July 19, 1791, and of the Penal Code of September 25, 1791 (Arts. 609 and 610). The general system of penal law resulting from this body of legislation had substantial defects, notably in these three respects : 1st, The executive power of pardon and of commutation of sentence were abolished for all offenses tried by juries (P. C. of 1791, tit. VI, Art. 13).^ This measure was due to the spirit of reaction against the abuses of Letters of pardon, so frequent under the Old Regime. None the less, it was a mistake ; for the power of pardon must have a place in any rational system as the necessary complement of social justice. 2d, This first blunder resulted in a second, still more serious : the abolition of penalties involving perpetual loss of liberty. Labor in chains, which was the next highest after the death penalty, was not to exceed a term of twenty-four years. Indeed, in a penal system which does not recognize the power of pardon, there is no place for life penalties, for we take away all hope from the convict ; and the most powerful motive for repentance disappears if he is not allowed to feel the possibility of liberation. presented it to the Convention ; and it was adopted upon his mere read- ing of it, interrupted only by the proposal of some amendments. In his "Notice historiquc sur la vie et les travaux de Merlin", M. Mignct says, of this Code of Brumaire : "A {jciieral expression of the most advanced social philosophy, this Code, written with elegant clearness, whose every provision carried, so to speak, its reason within itself, was voted in two sittings by the Convention, which adopted it in reliance upon his sponsor- ship. Thus the ideas of Merlin remained for nearly tifteen years the legislation of France." 'This text runs thus: "The issuance of any document tending to hinder or suspend the ex(>rcise of criminal justice or of any Letter of pardon, of discharge, of abrogation, of amnesty, or of commutation of sentence is abolished for all crimes tried bj' juries." ' 323 § (K)^| THE FRENCH REVOLUTIONARY PERIOD [Part I, TiTLE IV 3d, Finally (and this is the chief defect of this legislation)» in the case of offenses punishable with afflictive or infamous punishments, the punishment for each offense was fixed specifi- cally and unalterably, without naming a maximum or minimum, between which the judge might have at least some slight choice. " The Constitutional Assembly," says Treilhard, in the commen- tary of the Commission accompanying the penal Code of 1810, " was convinced that it could not enclose within too narrow boun- daries the powers given to the magistracy : it regulated, therefore, with great precision the duration of the punishment to be applied to each individual case ; its aim was that, after the verdict of the jury, the judge's function should be limited to the mechanical application of the text of the law." Thus, through hatred of the discretionary powers which the judges under the old system had so abused, the Assembly went to the other extreme; they abolished the power of pardon, and took from the judge the power of adjusting the punishment to the personal and variable cul- pability of the offender. The result was that the penalty was frequently disproportioned to the deed which it aimed to repress ; and that juries, making a compromise with their consciences, pre- ferred to acquit the offender rather than to bring upon him a punishment which they regarded as exaggerated. The Code of 1791 held sway over France until it was replaced, in 1810, by the Penal Code still in force to-day. 324 Chapter XIII THE GERMAN REFORMS OF THE FRENCH REVOLUTIONARY PERIOD § 61. The New Direction to Gor- man (yriminal Theory in the Late 1700 s. Grol- man and Feuerbaeh. The Movement for Prison Re- form. Howard. § 62. Feuerbaeh as Legislator for Bavaria. The Bavarian Draft of 1802; and the Code of 1813. § GL The New Direction to German Criminal Theory in the Late 1700 s. — While the principle of deterrence was adopted by the French Code as a practical measnre, it was in the meantime coming to prevail in German legal science on grounds of principle and in an improved form. The substantial and cogent reasons for this were, indeed, not merely the inherent consistency of the theory itself (the inadequacies of which it is comparatively easy to expose), as the fact that this theory, in the form given it by its champions, was best calculated to eliminate judicial arbitrariness and to demonstrate the necessity of a controlling statute law. This theory was led up to by a controversy of profound and extensive significance among German jurists over the nature of criminal responsibility. Pufendorf ^ had been the first writer since Aristotle to concern himself with this subject in an independ- ent and scientific manner. Pufendorf's basic theory posited moral responsibility, but was not adequate, starting from that stand- point, to work out a doctrine of legal responsibility. The theory of moral freedom (as we have already remarked) offered one of the best supports for the view that the criminal statute was subject to be overridden by the judge's individual opinion — a view which would undermine the statute. The natural attempt, then, for those who repudiated this view was to find for the criminal statute ^ "De jure natura) et gentium", I, o. 9. "De officio hominis", I, e. 1. §01] THE FRENCH REVOLUTIONARY PERIOD [Part I, Title IV a foundation that was completely independent of the assumption of human free(lom.- Grolmann and Feuerbach. — For this postulate of freedom of the will, Grolmann substituted the proposition that a human being who has once acted in contravention to the law will aj^ain do so in the future in the same or a similar manner. Feuerbach,* although himself a noble nature, approached the problem as a cynic ; he regarded the human will as a conglomerate or product of purely sensual motives, and believed that in order to reach such motives the law must be as rigid and definite as possible. Both theories Avere false ; but both demanded what suited the progress of the times. At the same time, they w^ere practical theories, in the sense of seeking to make the law as effective as possible. Consequently they were admirably calculated to emphasize the possibilities of constructive legislation and to portray it as capable of rational treatment. Both authors went about their task with, such a novel respect for positive law that in their hands it acquired a repute in marked contrast to that which it had suffered at the hands of its disparagers. It so happened (or perhaps was inhe- rent in the very nature of things) that Grolmann and Feuerbach. (especially the latter) were men of keen logic and gifted with the highly important talent of exact statement and brilliant exposi- tion. Feuerbach, moreover, was a master of the anatomical dis- section of the motives underlying human actions (as is revealed in his " Revision of Criminal Law " and especially in his later and classical work " Notable Criminal Trials narrated from the Rec- ords 4 Thus the appearance of Grolmann's " Lehrbuch " was an important tvirning-point in the science of German criminal law.** Its proud motto, borrowing the words of Ulrich Zasius : " Com- munibus uti opinionibus, si vel textus juris vel ratio manifesta repugnat, hoc nos certam veritatis pestem decimus et contesta- 2 Cf. Henke, pp. 334 et seq. ä Concerning the life of this genial man (born Nov. 14, 1775) who perhaps is the greatest of German writers on criminal law, cf. Glaser, "Ges. Ideinere Schriften über Strafrecht, Civil- und Strafprocess", I (1868), pp. 19-62; Geyer, "Festrede zu Paul Joh. Anselm v. Feuerbach's hundertjährigem Geburtstag"; Binding, in "Allgemeine (Augsburger) Zeitung" of Nov. 14th, 1875 (No. 318). ^ ["Aetenmässige Darstellung merkwürdiger CriminalrechtsfäUe" ; translated into English by Lady Duff-Gordon, under the title "Notable German Criminal Trials." — Ed.] * ' ' Grundsätze der Criminalrechtswissenschaf t nebst einer systematischen Darstellung des Geistes der deutschen Criminalgesetze" (Giessen, 1798). 326 Chapter XIII] THE FRENCH REVOLUTIONARY REFORMS [§ 61 mur ", forecast the destruction of the rubbish whicli at that time served as authority and the renascence of a constructive system of law. And the turning-point in legal science was further marked by Feuerbach's " Revision of the Criminal Law " (1799), by the vigorous attack of Grolmann and especially of Feuerbach on Klein ^ and others ; and ultimately by the learned controversy between these two friendly antagonists themselves, Grolmann and Feuerbach. Once more the distinction was insisted on between general philosophic ideas and a practical system of law. The value of a constructive system of legislation again came to be realized, and with it the possibilities of the judicial administration of such a law. Criminal law and criminal procedure were now culti- vated in journals devoted to that field. In 1797, Grolmann, Feuerbach, and von Almendingen began the publication of the " Bibliothek für peinliche Rechtswissenschaft und Gesetzkunde." ' Klein and Kleinschrod (of \Yürzburg) in 1798 founded the " Archiv des Criminalrechts ", which was for many years the central pub- lication of German criminal law. The false relation between criminal justice and the police authority (embodied in the oft controverted " punishment on suspicion ") ^ was completely over- thrown by Feuerbach, and the distinction between criminal justice and police measures was clearly demonstrated. The Movement towards Prison Reform. — During this same period the movement started by the Englishman Howard,^ for the improvement of prisons and criminal institutions, showed its effects in Germany. ^° The conditions in many of the great ^ Klein's essay, "Ueber Natur und Zweck der Strafe" in the "Archiv des Criminalrechts", Vol. 2 (1800), from the historical viewpoint is far more accurate than Feuerbach's "Revision." Cf. also Klein as to Grol- mann's "Lehrbuch" in the "Archiv des Criminalreehts", Vol. 1, Portion 4, pp. 128, etc. ' Continued to the 3d volume (Giessen, 1804). * As to the treatment at that time of those whose guilt was not abso- lutely proven, cf. especially Eisenhart, in the "Archiv des Criminalrechts", 3d ser. (1801), I, pp. 57 el seq.; II, pp. 1 el seq.; also Klein, ibid., pp. 64 el seq., and C. S. Zachnrio, IV, pp. 1 el seq. ^ John Howard, "The State of the Prisons in England and Wales" (1777) ; translated in part into German, with notes and additions, by Köster (Leipzig, 1780). 1" Cf. especially Wagnilz, "Historische Nachrichten und Bemerkungen über die merkwürdigsten Zuchthäuser in Deutschland nebst einem An- hange über die zweckmässigste Einrichtung der Gefängnisse und Irren- anstalten" (2 vols., Halle, 1791, 17Ü2). At that time the "Zuchthaus" denoted an intermediate form of imprisonment. The worst criminals were for the most part sent to the so-called "Stockhäuser" or to fortresses. Thus e.g. in Braunsehwieg, no one who had committed a crime depriving of civic rights was sent to the "Zuchthaus." Cf. Wagnilz, II, p. 25. 327 § 02] THE FRENCH REVOLUTIONARY PERIOD [Part I, Title IV (Timiiuil institutions in Germany were indeed not so revoltinf:^ as in most of the English prisons. In many principaHties, as a result of reformatories and careful supervision by the local authorities, prison administration observed (at least towards those prisoners not serving the severest sentences) '^ methods of treatment which were based on humanity and even on principles of education. Yet there was no well thought out and systematic scheme of prison- penalties, and even the institutions ^- then regarded as the best were used also as asylums for the insane, the poor, and even the or])lians. Ideas of progress, which even yet have not reached their full fruition, were at that time struggling against opinions and conditions ^^ which to us to-day are inconceivable.^^ § 02. Feuerbach as Legislator for Bavaria. — It was natural that a State like Bavaria, which as a result of external circumstances had (for the time) attained such a prominent position and which at the same time inclined so much to follow France, should enter upon a thoroughgoing reform in the province of criminal law as well as in the other branches of governmental activity. This was furthered by the fact that in INIaximilian Joseph it possessed an enlightened and liberal-minded ruler. The task of preparing a draft for a penal code was assigned to Kleinschrod, professor at Würzburg. His draft, published in 1802, was in many portions exceedingly ambiguous in both its composition and its underlying purposes. Its general spirit was that of the criminal portion of the " General Prussian Landrecht." It met with an able criti- cism at the hands of Feuerbach, who was himself a master of style ; and the principles he invoked were absolutely correct. Imperfection in a code, he observed, may well consist in the very fact of its excessive detail.^ " Xot only must a code deal with all subjects within its sphere, but it must also govern these subjects by precise exhaustive definitions and by broad rules of universal '^ CJ. the observation of Wagnitz (II, pp. 67 et seq.) concerning the "Zuchthaus" in Celle. 1- In many institutions of this character {e.g. in Leipzig, Frankfurt a. M., Augsburg, cf. Wagnitz, I, pp. 267 et seq.: II, pp. 90, 91 ; II, p. 11) the state of things was bad enough. Brutal treatment — e.g. frequent use of wire-braided whips — deadened aU sense of honor. An illustration of this brutal treatment was the custom of flogging upon admission to the prison, the so-called "welcome." " Even such a man as Justus Moser ("Patriotische Phantasien", IV, p. 157) could approve the sale of criminals for foreign military ser\iee {cf. Wagnitz, I, pp. 214, 215). '* In Stettin, e.g. those who were confined in the fortresses were obUged to procure their clothing by begging. Hälschner, p. 243. ^ "Bibl. für peinliche Rechtswissenschaft", Vol. 2, Part 3, p. 10. 328 Chapter XIII] THE FRENCH REVOLUTIONARY REFORMS [§ 62 application. Xo code can comprise all cases and examples. . . . If legislation thinks that detail in dealing with the several possible cases and multiplicity of special provisions can make amends for the lack of general definitions and principles, it will be defective and imperfect by the very reason of its prolixity." " The (wise) legislator - does not speak in syllogisms, and does not use philo- sophic and technical words of expression. He displays his philo- sophic spirit in the depth and breadth of his conceptions and not in the figments of philosophy. He speaks the language of the people with the clear and lofty spirit of wisdom. His simplicity is in harmony with the correctness and precision of his ideas. Capable of being understood by all, his principles furnish the thoughtful with a rich fund of ideas." Feuerbach also justly insisted upon system in a code.^ " To be sure, a code is not a compendium ; it can never aspire to the scholastically artificial and precisely articulated form of a system. But its principles should coordinate in a plain, simple arrangement determined by their association and relationship. ^Moreover, there are cer- tain negative principles of a system which the legislator should follow. Nothing should be in the wrong place. Laws dealing Avith extraneous subjects should not be introduced into other laws to the confusion and destruction of their coherence; and laws should not be exposed to mistakes and confusion because of their position or the heading under which they are included or the connection in which . . . they are used. While the work of the legislator is not scientific jurisprudence, yet it is for science and from it science should ensue." All this, to be sure, is but little in harmony with that set conception which many, in their desire to banish all arbitrariness and discretion from the courts, form of the relation of legislation and jurisprudence. Quistorp, for example, in his " Draft of a Code for Penal and Criminal Cases " ^ had proposed to forbid comments on the criminal law by jurists in printed publications.^ The result of this criticism ^ of the Bavarian draft was that 2 Preeeding reference, p. 20. ' Pp. 29, 30. * Part I, Chap. 1, § 5. 5 To the contrary, cf. Feuerbach, "Biblioth.", Vol. II, Part 3, Div. 2, pp. 20 et seq. " Feuerbach at the time aspired to the introduction of a new system of criminal procedure, liut he did not accomplish it. The portion of the Bavarian Code of that time had become merely an adaptation (with meritorious features however) of tJie inquisitorial form of procedure. [On this subject, cf. Vol. VI of the present Series, Esmeins "History of Continental Criminal Procedure", transl. Simpson. — Thaxsl.] 329 § (121 '■'■H'^ FRENCH REVOLUTIONARY PERIOD [Part I, TlTLK IV lu'urrhacli liiinsclf n^ccivcfl a commission to [)r('par(' a new draft of a code for lJa\aria. In 1805 he was appointed Minister of Justice of Bavaria (of wiiicii he was a subject), a State which at that time occupied a j)()siti<)n of considerable power and was quite (hsposed towards thorought^oinj; reforms in all branches of law. The Bavarian Code of 1813. — The Bavarian Criminal ("ode of May 1Ü, 1813, though by no means entirely in accord with I^'euer- bach's views, ^ was based substantially upon his draft, and was emphatically an epoch-making work in German criminal legis- lation. It is remarkable for its clearness of expression, worthy in every respect of a legislator, for a completeness in its General Portion ^ and a precision in its definitions thitherto unknown in (icrman law. Naturally, in a work by Feuerbach, nothing is to be found of the doctrine of unlimited judicial discretion ; but (as with the French Code Penal and most of the subsequent leg- islation) the Code gives the judge the right of fixing the pun- ishment within a certain maximum and minimum. A decided improvement lay in the fact that the rules for aggravation and mitigation of punishment were sharply distinguished from the judicial right to fix the penalty within the customary field for dis- cretion.^ Like the French Code, the Bavarian Code assumed itself to be complete ; and, according to Article I, the resort to analogy, for the purpose of thereby imputing criminality to an act, is for- bidden. " For it is upon this principle ", says the official Annota- tion to the Code,^° " that the security of the State and of every individual depends." It follows the French Code in adopting the triple classification of " Crimes ", " Misdemeanors ", and " Transgressions." ^^ The last mentioned are entrusted to a special Code for OfTenses against Police Supervision, and " crimes " are allotted to the " criminal " courts, while " misdemeanors " are allotted to the jurisdiction of the " civic penal " courts, and " transgressions " are left to the jurisdiction of the police officials.^- The provisions of the General Portion,^^ however, apply both to ^ Feuerbaeh did not accomplish his purpose of abolishing flogging. Cf. Geyer, p. 15. However, torture yielded in 1806 to Feuerbach's attacks. * "Upon the soundness and completeness of these the fate of all special criminal provisions depends" ("Official Annotations", I, p. 49). ^ "Official Annotations", pp. 232 el seq. 1" I, p. 66. '' I.e. "Verbrechen", "Vergehen" and "Uebertretungen." 12 Art. 3. " Under "crimes" are comprehended all punishable actions which on account of their nature and the extent of their e\il are threatened with the death penalty, wearing of chains, imprisonment in a penitentiary, 330 Chapter XIII] the FRENCH REVOLUTIONARY REFORMS [§ G2 " misdemeanors " and to " crimes." " A well-calculated s^'stem of punishment should adjust itself to the character of the indi- vidual criminal act, and as stated in the " Annotations " it is the quality and not the quantity of the punishment which should be determined by the character of the act. Defects. — In contrast to these meritorious features of the Bavarian Code, there were some considerable defects, which for a long time continued to exercise no slight detrimental influ- ence on the legislation of the other German States. Feuerbach certainly was conscious of the distinction between the task of the legislator and that of the scientific jurist. But, as a dialectician, he relied too much upon his own discernment and believed that the fundamental problems of science could receive final solution in definite formulas. For this reason the General Portion of his work contains a long list of perversely unsuitable provisions and definitions. Article 65 and those following, dealing with negli- gence, are out of place in a code; and the provisions relative to unlawful intent are in large part completely erroneous, and reach their climax in his famous or rather notorious " presumption of malicious intent." ^^ This Code of his also originated those unfortunate and subtle provisions as to conspiracy (" Com- plott "),^^ which infected like disease-germs most of the later German Codes, and were but slowly eliminated. Moreover, as the theory of deterrence, which he sought to follow, required that the greatest possible restrictions be placed upon the exercise of judicial discretion,^^ the Code's details as to penalties lost them- selves in trivial distinctions which in many cases were inev- itably either incorrect or open to doubt. Another defect, due to the deterrence theory, ^^ was the harsh penalties for second workhouse, or fortress, with forfeiture or declaration of incapacity for all honors or offices under the State or such as are deemed honorable. " "Official Annotations", T, p. 30. >^ Cf. Arts. 41, 43. "Annotations", I, p. 143. As to negligence, cf. Arts. 65 el seq. Art. 69, while it declares generally that negligence is punishable, includes therein quite a number of new offenses. '^ Arts. 56 et seq. Art 46, Abs. 2, even recognizes unintentional in- stigation of crime. '^ G(nierally speaking, the range between the maxim.um and minimum of punishment was too narrow. Cf. Arnold, in "Archiv d. Criminalr." (1844), p. 196. '* The artificial character of the theory of deterrence, at variance with real life, led e.g. to giving quite unreasonable consequences to the offenses of theft and defiance of the authorities. Tlie taking of a turnip from a field or of a plum from a tree according (o Arts. 21S, 220 entailed a penalty of three years' imi)risonment in a workliouse (cf. Arnold, p. 395), and the Annotations of the Code would not forl)id punishment for defiance 331 § 62] THE FRENCH REVOLUTIONARY PERIOD [Part I, Titf.r IV offenses;''-' and since the deterrent theory assumes that a penalty which has Ix'cn announced by way of threat is always justifiable, the ( 'ode authorized infliction of severe punishments for acts which only presumably, or even possibly constituted a crime.^" More- over, since P'euerbach aimed to separate absolutely law and moral- ity, the Code would in no case regard as crimes grave breaches of morality which did not violate subjective rights.^' Adultery, for example, is treated, very superficially, merely as the intentional failure to perform a contract ^^ and is dealt with in the same divi- sion as violation of powers of attorney. It is also peculiar that Article 106 permits of certain species of " punishment on suspi- cion " (" Verdachtstrafe "), although this is not recognized by the Annotations. Corporal chastisement appears in the Code only as aggravating the punishment of imprisonment ; ^^ the legislator however for- bade its infliction at the end of the period of punishment. Con- fiscation of property was abolished by the Bavarian constitution of 1808, and this was confirmed by Art. 33 of the Code. But in accordance with Art. 7, the artificial and unnatural institution of civic death continued in Bavaria until the statute of Nov. 19, 1849. The only aggravation of the death penalty recognized by the Code was preliminary exposure on a pillory. Soon after the publication of the Code were promulgated the official " Annotations to the Code of the Kingdom of Bavaria according to the Decrees of the Royal Privy Council." "^ But it is worthy of note that the royal patent for its publication -^ forbade the publication of further commentaries on the Code (although it could itself very properly be designated as a work of scientific jurisprudence) ; and even the lecturers in the Universi- ties cited exclusively to the text of the law and these official " Annotations ", although the latter were often at variance with the clear text of the law ! of the authorities in eases where the authorities lack jurisdiction or their order is improper (Annotations, III, p. 52). Even more than the Code, the Bavarian statute of Aug. 9, 1806 concerning the punishment of poach- ing adheres to the theory of deterrence. Arnold {anlc, p. 402) gives a good description of the effect of this "deterrence" in actual practice. 1^ Arts. 113 et seq. ^^ Annotations, II, p. 59. 20 Cf. Arts. 149, 160. ^^ Art. 401. Cf. Ann. I, p. 59. ^^ As to the somewhat disproportionate punishment of adultery, cf. Arnold, pp. 379 et seq. ^* "Anmerkungen zum Strafgesetzbuche für das Königreich Bayern nach den Protokollen des königl. geheimen Raths" (3 vols. JNIünchen, 1813). " Nov. 13, 1813. 332 TITLE V. MODERN TIMES CHAPTER XIV. THE FRENCH CODE OF 1810, AND CHAPTER XV. CHAPTER XVI. FRANCE IN THE 1800 s. GERMANY SINCE 1813. OTHER COUNTRIES: A. AUSTRIA. B. NETHERLANDS AND BELGIUM. C. SCANDINAVIA. D. SWITZERLAND. 333 Chapter XIV THE FRENCH CODE OF 1810, AND FRANCE IN THE ISOO s § 62a. The Penal Code of 1810. I § 62b. Principal Changes during I the 1800 s. § G2a. The Penal Code of 1810. — French criminal law includes (1) the general law, i.e. the Penal Code, the Code of Criminal Procedure, and their appurtenant and amendinj,^ statutes, and (2) the special law, i.e. special laws covering special oil'enses and special procedures. The general criminal law has been several times codified, re- formed, and revised since the Revolution of 1789. In fact, we may distinguish, in what concerns criminal and civil law alike, three different legislative processes : codification, which builds on a new plan the whole of a legislation ; reform, which modi- fies the Codes and gives them new life; and revision, which perfects them without altering the fundamental regulations. The proN'isions of the general criminal law are to-day embraced in two Codes : the Penal Code and the Code of Criminal Procedure, which replace the laws of the intermediary epoch. The history of the original enactment and later changes of these two Codes is as follows : A commission, appointed under the Consulate (by a decree of 27th Germinal, year IX), and composed of MM. Mciliard, Target, Oudard, Treilhard, and Blondel, had been charged with the draft- ing of a single Code, to cover both general principles and details. This draft, submitted by this commission and composed of 11()9 Articles, was prefaced by some general comments; those prepared by Target dealt with punishments ; those of Oudard, with organic- provisions and with j)r()cedure. "^^riiis work was innnediately i[§§62ft, 62?), = §§ 76-82, pp. 1.32-142, of Vol. T of Professor R. Gak- uaud's " Trait« theorique et pratique du droit penal fran^-ais" (2d ed., 1898). For this author and work, see the Editorial Preface. — Ed.] 335 § 62a] MODERN TIMES [Part I, Title V prinU'd,^ and scut to the Court of Cassation, the criminal courts, and the courts of appeal, to obtain their opinions. These opini(nis (not very fav'orable, on the whole, to the legislation of the Constitu- tional Assembly and the Convention) showed a tendency toward a return to the old criminal law.' On 2d Prairial, year XII, the Emperor ordered the drafting of a series of fundamental questions, to serve as basis for debate in the Council of State.^ These ques- tions, fourteen in number, were submitted to this numerous body at the meeting of 16th Prairial, year XII. The debate which en- sued on these topics was before long postponed, in order first, to reach a settlement upon the question of reorganization of the ju- diciary. The delay due to this and other reasons ^ suspended action for three years on the code-drafts. When the debate was resumed, in January, 1808, the Council separated the " laws of form " from the substantive law. The former were presented to the Legisla- tive Body ^ as a draft Code of Criminal Procedure, the latter as a draft Penal Code. The former Code was enacted at the end of 1808, the latter at the beginning of 1810. Before promulgating the two Codes, the government waited until the magistracy, reor- ganized by the law of April 20, 1810, should be regularly in office. Both Codes, therefore, took effect from the 1st of January, 1811. 2 In an octavo volume, entitled: "Pro jet de Code criminel avec les observations des redacteurs, celles du Tribunal de cassation et le eompte rendu par le grand juge", Paris, year XIII, pub. Garnery. ' "Observations des tribunaux d'appel sur le projet de Code criminel", 4 vol. in 4to, year XIII. * Among these questions, the following were those which concerned more particularly penal law : Question IX : Shall capital punishment be continued? — Question X: Shall there be pimishments for life? — Ques- tion XI : Shall confiscation be permitted in certain cases ? — Question XII : Shall judges have a certain freedom in the application of punishments ? Shall there be a maximum and a minimum which will give them the power of imposing punishment for a longer or shorter period according to circum- stances ? — Question XIII : Shall surveillance be introduced for a particular class of criminals, after the expiration of their punishment, and shall bail be demanded in certain cases for future good conduct ? — Question XIV : Shall rehabilitation be accorded to convicts whose conduct will have made them worthy of it? ^ M. Cruppi, attorney-general to the Court of Cassation, in an opening address delivered in 1896, under the title, "Napoleon et le jury", has shown that the principal cause of the delays in criminal legislation was the question of the jury. "Napoleon could not endure a tribunal which, in spite of skilful precautions in its administrative recruiting, would be in constant likelihood of escaping his power: he made repeated attempts to destroy it, but met ^nth sturdy resistance. The jury found energetic defenders among the best jurists of the country." MFor an explanation of the composition of these various legislative bodies under the Empire, see M. Planiol's chapter in "General Survev of Continental Legal History," Vol. I of this Series, p. 281. — Ed.] 336 Chapter XIV] FRANCE IN THE 1800 S [§ 62a The Penal Code of 1810 was at once reactionary and reconstruc- tive. It took as its basis the principles of the utilitarian school. In essence, it aimed to secure the defense of society, by means of intimidation.^ The philosophy of penal justice does not seem to have concerned the mind of the legislators any further than a certain attention to the judge's apportionment of the punishment to the offense. The Penal Code was divided under three heads — crimes, punishments, and jurisdiction. In its definitions of crime it is notable mainly for its excessive severity ; it also went too far in many points, as in making criminal a failure to reveal a plot and in classing the attempt with the consummated crime, and of the accomplice with the principal.^ In its system of penalties, the Penal Code concerned itself exclusively with punishment ; the idea of reforming the offender through the law was foreign to it. We find the death penalty and life punishments freely applied, excessive chastisements, barbarous mutilations, and penalties unjust in their effects, such as general confiscation and civil death. It inflicted upon the parricide the mutilation of his hand before putting him to death ; it employed the brand (for certain convicts) and the " carcan." Its system of imprisonments was onl}^ a fiction, for there were no penitentiary establishments appropriate for the various punishments. Such were the chief defects of this legisla- tion. But from other points of view the Penal Code of 1810 did institute or preserve some important advances. First, as a work of codification, it is drawn with much simplicity, clearness, and or- ' Upon the j^hilosophie principles which inspired the framers of the Penal Code, we find the following in the "Observations" of Target, placed at the beginning of the draft: "Plainly pnnishment is not vengeance; this wretched satisfaction, the mark of a low and cruel mind, has no place in the theory of the law. The necessity of punishment is alone what makes it lawful. It is not the prime aim of the law that the offender should suffer ; the thing of chief importance is that crimes be prevented. If, when a most detestable crime had been committed, we could be sure that no further crime were to be feared, the punisliment of this final offender would be useless barbarity ; some would not hesitate to assert that it would exceed the power of the law. The gravity of crimes is measured, therefore, not so much by the perversity which they reveal as by the dangers which they entail. The efficacy of punishment is meas- ured less by its harshness than by the fear which it inspires." Locr6, Vol. XXIX", p. 8. These remarks express with the greatest clearness the doctrines of Bentham ; and his doctrines undoulttedly formed the basis of the j)ro\isions of the Penal Code of ISIO. Hcnlham'f^ treatises on civil and ])enal legislalion had been translated and ])ublishe(l in 1S()2 by Dii- monl. The influence of Kant had not yet made itself felt in France, at least in official sj)h(Tes. 8 Its system of criminality, defective though it may be, does not, how- ever, deserve the criticisms which have properly been made upon its system of punishments. CJ. Chauvcau and Ilclie, Vol. I, no. 11. 337 § G2fe] MODERN TIMES [Paut I, Title V (ler ; crimes and offenses of tlie same nature, altliouf^h of diflVrcnt ich Sachsen mit Commentar " (1862). Of importance, also, is " Zeitschrift für Rechtspflege und Verwaltung zunächst für dem Königreich Sachsen " (1&-58 f / seq.), and Schwarze, " Allgemeine Gerichtszeitung für dem Königreich Sachsen." 347 § G41 MODERN TIMES [Part I, Title V § ()4. Legislation in Prussia. — There was a peculiar course of (lovelopmcut in I'russia, wliicli at the end of the 1700 s began to be the center of reactionary principles in matters of criminal law. Offenses against property, which at that time were in- creasing in frequency (a thing readily explainable by the disturbed condition of the times), occasioned the " Circularverordnung " of February 20, 1799, dealing with theft and other crimes against the security of property. This was so ambiguously expressed ^ that there was room to doubt whether it really represented a more vigorous repression of the offenses in question, or whether (as viewed by some courts) it introduced milder punishments. Since the Prussian penal institutions - were for a large part in a state of utter neglect,^ the remedy ^ was for a time sought in the expedient of flogging, which was specially recommended and employed (especially for suspects, who were in this way brought to a confes- sion). At the same time, that fear of demagogues and revolution- ists so long entertained in Prussia began to bear fruit in provisions against students, secret societies, and acts tending to public dis- orders. Together with the law of 1799, above mentioned, a num- ber of new ordinances (some of them most extraordinary) directed against libels and insults (in which the legislator met much diffi- culty in handling the distinction between civil and military persons) so increased the general confusion that as early as 1S05 a project to publish a new code was even proposed by the legislative power ' Cf. e.g. § 2: "He who for the first time is convicted of an ordinary theft shall undergo corporal chastisement, or, if such punishment is not feasible (?) or should be deemed insufficient, shall be sentenced to im- prisonment in a reformatory institution, to solitary confinement, or to penal labor." § 7: "More severe (?) chastisement shall be inflicted if, etc." (The amount of ordinary chastisement was not fixed.) § IS ordered imprisonment imtil pardon, for repeated thefts accompanied A\äth violence. § 12 in addition to Ufe imprisonment also pro\'ided branding and pubhc flogging for repetition of the crime of robbery. 2 As to the horrible building conditions of many institutions, in which cleanliness was absolutely impossible and the prisoners were consumed by vermin, cf. the work of the Prussian Minister of Justice Von Arnim, "Bruchstücke über Verbrechen und Strafen" (2 vols. 1803), in which the harmful condition of the Prussian system of criminal justice was por- trayed with great candor. Cf. especially II, pp. 189 et seq. Concerning the pitiful treatment of sick prisoners, cf. II, p. 78. But cf. also I, p. 235 and II, p. 39 as to the agreeable life in other penal institutions. ' The dilemma as to what to do ^^ith prisoners led even to a cabinet order of Dec. 28, 1801, which under certain conditions contemplated de- portation to Siberia. This was actually done. Cf. Wagnitz, "Ideen und Pläne zur Verbesserung der Polizei- und Criminalanstalten " (Halle, 1801), II, pp. 17, 43. * As to the repulsive effects of this flogging in a famous (or rather notorious) trial, cf. Von Arnim, I, pp. 38 el seq. 348 Chapter XV] GERMANY SINCE 1813 [§ 64 itself.' Nevertheless, nothino; came of this other than a number of separate ordinances against secret societies, disobedience of the censor, crimes against the State, and similar regulations arising from the fear of demagogues. It was not until 1S26 that the preparation of a criminal code was undertaken under the ^Minister of Justice, Count Dankelmann. INIarked progress was shown by the " General Portion " in the draft of 1S3Ü, which was substantially the work of the Supreme Court Counsellor, Bode. However, Von Kamptz (who in 1830 succeeded Count Dankelmann as ^Minister of Justice) sought to warp the leg- islation towards the standpoint of the police regulation of the " Landrecht," and revised it in an ultra-reactionary spirit. The provisions of the draft appearing in 1836 are almost incred- ible.^ Aggravated forms of the death penalty, as well as corporal chastisement (to be administered publicly!), again make their appearance. It is impossible here to undertake to follow out in detail the com- plicated history of the long preliminary work for the Prussian Criminal Code. One may attribute the merit of the preliminary draft of 1843 '' to its subjection to public criticism. But it is as- tonishing to find in the draft of 1847 (which in other respects shows more of the influence of the law of France and the Rhine countries) pro\isions by which, in certain graver crimes, the death penalty is aggravated by public exposure of the head of the executed crim- inal and also by cutting off the guilty right hand after death, and also provisions by which imprisonment in penitentiaries was aggravated by corporal punishment and imprisonment in jails by curtailment of food and by uncomfortable places of repose. There was also imposed confiscation of all the property of those guilty of high and ordinary treason and of e\'ading military service. The Code of 1851. — • The year 1848 marked the end of these vacillations, and the Prussian Criminal Code of April 14, 1851,^ exhibited in a number of important provisions (although not in all '■' Cf. the publication permit for the " Criminalordnung für die preus- sisehen Staaten" of Dec. 11, 1S05. •^ Bcrncr, pp. 224 d seq., gives a selection of examples. For example, the dissemination of i)rinciples and opinions which tnifj:ht incite or en- courage treasonable plots or sentiments was punished by from two to six years in the penitentiary. ' Cf. especially Bcrncr, pp. 226 et seq. ^ The draft appearing in 1849, based upon the decrees of a commission of the Department of Justice, contained substantially the provisions of the later code. 349 § ()4] MODERN TIMES [Part I, Title V respects) a most important progress in German legal development.* It revealed a step in advance, to which (apart from the Carolina, in its day) perhaps only that made by the Bavarian Code of 181.') may be compared.^" All this was substantially due to the far-reaching influence of the French Code, which until 1851 had been in effect in the Prussian Rhine Provinces. Like the French Code, the Prus- sian is remarkable for a brevity of composition, avoiding super- fluity and the rejection of all pedantic vagaries, and therefore by the greater freedom which it allows for the scientific regulation of the provisions of the " General Portion." It also resembles the French Code in that (more perhaps than any other of the earlier German Codes) it is adaptable to use under the jury system. It bears a further similarity to the French Code in being free from moralizing and theological tendencies, and generally (but not entirely) ^^ free from that meddlesomeness which we encounter in so many provisions of the earlier local legislation. It adopts the triple classification of punishable acts as " Verbrechen ", " Vergehen ", and " Uebertretungen 'V- and in its " Special Por- tion " completely separated the last class of offenses from the two other. In an appendix it deals with only some of the offenses against police regulation. On the other hand, while it places limits upon punishment for " Uebertretungen ", it extends to them a number of the most important provisions of the "General Portion." The Code possesses considerable advantages over the French Code. The " General Portion " was conceived in a comprehen- sive spirit, under the influence of German jurists. The various ^ Cf. Goltdammer, "Materialien zum Straf gesetzbuehe für die preuss-r ischen Staaten" (1851, 1852); Bescler, " Commentar " (1851); Oppen- hoff/'üas Strafgesetzbuch für die preussliehen Staaten, erläutert aus den JMaterialien, der Reehtslehre und den Entscheidungen des Obertribunals" (6th ed. 1869); Temnie, "Lehrbuch des preussl. Strafreehts" (1853); Hälschner, "System" (2 Parts, 1855, 1868, not completed; Part I con- tains the "General Portion"); Oppcnhoff, "Die Rechtsprechung des königl. Obertribunals in Strafsachen" (1861 et seq.). "Archiv für preussisches Strafrecht", established hy Goltdammer in 1853, in 1871 changed to "Archiv für deutsches und preussisches Strafrecht", and still appearing, ed. Kohler, a volume annuaUj'. 1° Cf. Mittermaier, "Archiv für preussisches Strafrecht" (1851), pp. 14 et seq. "This recalls the well- known "Hatred and Contempt" paragraph (§ 101) : "Anyone who through public assertion or dissemination of false or distorted statements of fact, or tlu*ough public abuse or derision, exposes the institutions of the State or the regulations of the authorities to hate and contempt shall be punished by a fine not exceeding 200 Thaler or by imprisonment not exceeding two months." {Cf. also § 101) § 151 of Part II, Tit. 20 of the "General 'Landreeht.'" '* I.e. approximatel.v "crimes", "misdemeanors", and Eolations of law not amounting to a misdemeanor. 350 Chapter XV] GERMANY SINCE 1813 [§ G4 offenses are more carefully and precisely defined and the Code is uniformly milder than the " Code Penal " as it appeared originally in 1810. Xo mention is made of corporal punishment, and im- prisonment is simply divided into two kinds : ^^ imprisonment in a penitentiary and in a jail.^^ There is also, for certain offenses, con- finement in a fortress, which, while very mild in character, might possibly be of long duration. Apart from murder and high treason. the death penalty is provided for grave cases of manslaughter and for crimes endangering the general public ; but it is to be inflicted within the prison walls. In many respects and especially in regard to its theories of par- ticipation and attempt, this Code too closely followed the French. Those provisions copied from the French law (in many respects commendable), which permitted the consideration of mitigating circumstances in manj^ cases (but by no means in all) , merited cen- sure for this very inconsistency, and subjected the necessary severity and logic of the law to the sentiment of the individual jury. Many of the separate provisions are quite severe, and a punctilious interpretation of the courts, following too much the letter of the law, has rendered certain features the more intoler- able.^^ It may be added that the provisions concerning the mode of carrying out imprisonment are inadequate, and in actual prac- tice, apart from the fact that enforced labor of those confined for " Lebertretungen " fell into disuse, the treatment of convicts de- pended upon the unfettered discretion of the prison authorities, — even to the infliction of solitary confinement.^^ The disciplinary treatment of prisoners was covered neither by the Code itself, nor by any supplementary statutes ; and as to a legal protection of, for example, persons of the educated class condemned not for dishonorable offenses but merely for offenses against the press laws " I.e. "Zuchthausstrafe" and "Gefängnissstrafe." "This divided also into two classes, for " Vergehen " and for "Ueber- tretungen." 1* Thus, for example, § 89 dealing with insubordination was frequently so interpreted that opposition to acts of an official which were of doubtful legality, provided there was no malice on the part of the official, was re- garded as punishable. Certain supplementary statutes made this in some respects less severe. •^ The memorial to the "Landtag" by the Minister of Interior (March 26, 1861) makes this assertion. On the contrary, see Von Holtzcndorff, "Gesetz oder Verwaltungsmaxime, rechtliche Bedenkengegen die preuss- isehe Denkschrift betr. Einzelhaft" (1861). The vi(>w of the Prussian government was defended by Böhlnu, "Die Einzelhaft in Preussen" (1861). Concerning certain tendencies of Prussian prison authorities of this period, cj. also Von IloUzettdorff, " Der BriidiTorden des rauhen. Hauses und sein Wirken in den Strafanstalten" (1862). 351 § G5] MODERN TIMES [Part T, Title V or offenses of a purely political nature, against a treatment in the prisons which in the circumstances in question was absolutely improper, none can be found in this Code. § 65. Influence of the Prussian Code. — The practical useful- ness of the Prussian Criminal Code caused a number of smaller States to take it as a foundation for their own criminal legislation. With minor changes, it was enacted as law in Waldeck and Pyr- mont (1855).^ The Criminal Code of Lübeck, except for a few really significant changes, corresponds almost \'erbatim with that of Prussia.^ The Oldenburg Code of January 31, 1858, however, differed from the Prussian in not retaining the death penalty and in substituting imprisonment for life; in a few other cases, the amount of punishment was changed ; except in cases of life im- ]5risonment, loss of rights as a citizen was only temporary.^ The Bavarian Code of 1861. — The Bavarian Criminal Code of November 10, 1861, which like the Prussian Code was a result of long years of preparation and was the last of the more important local codes, was in many respects similar to the Prussian Code. It resembled the Prussian Code in respect to punishments af- fecting honor, and in many cases retained the death penalty (al- though not always the same as in the Prussian Code.) It was defective, however, in having a confused and indefinite system of punishment by imprisonment ; and it is difficult to mark the dis- tinction between its jail and prison punishments. In Article 19, it accepts the system of parallel punishments (instead of imprison- ment in jail or prison) under certain conditions for persons of the educated classes. In its treatment of attempts and participation, the code assumes a middle position between the French and Ger- man law. It differs from the Prussian Code in its " General Por- tion ", especially in its rejection of a system of extenuating cir- cumstances. However, Article 68 recognized limited mental ca- pacity as an extenuating circumstance ; and Article 74 sanctioned voluntary reparation as an extenuating circumstance^ in certain ' Thus, also, in Anhalt (by the statue of Feb. 5, 1852). Here however it was supplanted in 1864 by the Thuringfian Code. Cf. Berner, p. 257. - Thus the Code of Lübeck did not recognize permanent less of priv- ileges dependent upon honor, but only a temporary interdiction of these privileges. An attempt was always given a milder punishment than the consummated act. As to details, see Berner, p. 257. ^ A comparison of the Oldenburg and F*russian Code has been made by Mittermaier, in "Archiv für preuss. Strafrecht" (1859), pp. 14 et seq. * Limitation of the period within which punishment may be inflicted for crime was treated in quite a different manner. In this respect, how- ever, the code is distinctly inferior to that of Prussia. 352 Chapter XV] GERMANY SINCE 1813 [§66 offenses against property ; this latter, however, rested in the dis- cretion of the judge. Upon the whole, the Code is appreciably milder than that of Prussia.'' Other States. — It was not until the year 1866 that general codes were enacted in Mecklenburg (two grand duchies), Electoral Hesse,® Schleswig-Holstein, Lauenburg, Schaumburg-Lippe, Bre- men, and Hamburg. Theoretically the Carolina had still obtained in these countries ; but in reality the criminal law had been shaped by the usage of the courts (follow^ing the jurists) and by a number of more or less comprehensive special statutes.^ § 66. Progress towards Greater Legal Unity in Germany. — The political events of the year 1866 necessarily gave a new and now more effectual incentive to endeavors to establish a general law for Germany. Since the year 1860 this had been specially advocated by the German Bar Association.^ As a matter of fact, the Prus- sian government apparently was not planning for the immediate formation of a common North German Code; instead, its first measure was (by Ordinance of June 2oth, 1876) to introduce the Prussian Code ^ into its newly acquired territories of Hanover, Electoral Hesse, Schleswig-Holstein, Nassau, Hesse-Homburg, and Frankfurt-on-Main, as well as in the ceded districts of Bavaria.^ 5 For literature, see Berner, pp. 341 et seq. Special mention may be made of the commentaries by Hocheder (1862, not finished, only the first volume) ; Stenglein (2 vols. 1861,1862) ; Weis (2 vols. 1863, 1865) ; Dollmann, (1862, not finished); "Sitzungsberichte der bayer. Strafgerichte" (.5 vols. 1850-53); later " Zeitschrift für Gesetzgebung und Rechtspflege in Bayern" (1854 e< seq.) ; Stenglein, "Zeitschrift für Gerichtspraxis und Rechts\\issensehaft in Bayern" (1862; after 1872 app(>aring as "Zeitschrift f. deutsche Geriehts- praxis und Rechtswissenschaft"; discontinued in 1880). « Published in Electoral Hesse with only a few changes (the so-called "Philippina.") As to Electoral Hesse, cf. H. Kersting, "Das Strafrecht in Kurhessen." ^ F'or the two Grand duchies of Mecklenburg the following were es- pecially important : a comprehensive ordinance concerning theft of 1839, an ordinance of 1843 concerning offenses against pu])li(' order, and an ordinance of 1854 as to incendiarism. As to the condition of tlu> law in the above-mentioned countries, cf. "Motive zu dem Entwürfe eines Straf- gesetzbuchs für den norddeutschen Bund", pp. 6 et seq. ^ Cf. "Verhandlungen des 1. deutschen Juristentags", p. 58; ibid., essay by Von Gross and Von Kräwel dealing with the introduction of uni- form German legislation. See also essay by Wahlberg, p. 63. As early as 1857, Kriig had published his "Ideen zu einer gemeinsamen Straf- gesetzgebung für Deutschland." [And now .see Bänke, " Der erst(> Entwurf [1849] eines Deutschen Einlieitsstrafrechts " (Berlin, 1012). — Ed.] - As to the condition of the law in Hanover. Schleswig-Holstein, Elec- toral Hesse, Nassau, Hessen-Homburg, Frankfurt-on-Main. at the time of the annexation, cf. Goltdammer' s "Archiv f. preuss. Strafrecht" (1866), pp. 657-816. ^ In Lauenburg, wliich was not really absorbed by the Prussian State until 1876, the common law in the meantime continued in force. 353 § GOJ MODERN TIMES [Pakt 1, Title V But the Constitution of the North German Confederation of June 2()th placed criminal law and criminal procedure ' amonj^ those subjects over which the scope of the legislative power of the North German Confederation should extend. And, in pursuance of a decree of the Reichstag, there was published by the Prussian Minister of Justice •' towards the end of July, 1809, at the request of the Chancellor of the Confederation, a draft of a Criminal Code for the North German Confederation.^ The Draft of 1869 of a Criminal Code for North Germany. — ■ This draft was substantially the work of Frietlberg, who at that time was Supreme Counsellor of Justice, and later Prussian Minister of Justice. As declared in its accompanying Report, and as the conditions of the times indeed demanded, it took the Prus- sian Code as its foundation. It was, however, considerably less severe ; e.g. it limited capital punishment to a very few cases, and reduced the maximum duration of imprisonment to fifteen years. In numerous respects it had endeavored to comply with the de- mands of legal science ; particularly in its paragraphs dealing with attempts and the criminal capacity of children, it sought to bring itself more into accord with the principles of the German common law instead of the French principles adopted by the Prussian Code. It retained, however, the system of extenuating circumstances, and at the same time considerably expanded its scope. Its important change was : the release on parole of prisoners after they had under- gone part of their sentence, — a measure which (following the Eng- lish model) has been made use of since 18G2 in the kingdom of Saxony, by the pardoning of the ruler (but practised in accordance with certain generally received principles). An endeavor was also made to establish a rational rule for the effect of punishable acts upon capacity for holding offices of honor or trust, — a rule looking to the concrete case and ha^'ing regard not so much to the kind of punishment as to the character of the individual crime. ^ The authority of the several States to enact criminal laws was ob- viously not thereby revoked ; and so in the Kingdom of Saxonj^ on Octo- ber 1st, 1868, a revision of the criminal code was published and Hamburg even pubhshed a new criminal code in 1869. ^A very serviceable private draft was prepared by John ("Entwurf mit Motiven zu einem Strafgesetzbuche für den norddeutschen Bund", 1868). * In addition to the Report there accompanied this draft commen- taries on the death penalty and the maximum duration of punishment by imprisonment, and also discussions of problems of criminal law in the province of medical jurisprudence and a comparative collection of criminal provisions from German and foreign legislation. 354 Chapter XV] GERMANY SINCE 1813 [§ 07 The draft adopted the only correct and practical attitude in treating in matters of criminal law the entire territory of the Con- federation as a single territory/ notwithstanding the fact that the Confederation did not constitute a homogeneous State. For as a matter of fact criminal statutes are chiefly influenced by the de- gree of the civilization of the people and in part by their greater or lesser amount of political freedom, and are but comparatively little influenced by the differences of the civil law. It was recog- nized, however, that it was possible that both treason and high treason could be committed against the individual States of the Confederation as well as against the Confederation itself, — even where this crime was committed with a view of helping some other one of the confederated States. Obviously, a code complete in the sense that the application of all other criminal statutes was to be precluded was not even to be contemplated. None of the codes of even the larger States were complete in this sense. It was nec- essary that a certain field of legislation be left to the individual States. Care was to be taken only that the unity of the law should not thereby be destroyed, that the individual States adopt lofty principles of punishment, and that no penalty should be imposed for acts which would be deemed unpunishable under the sense and spirit of the Code of the Confederation by virtue of its silence or the limitations of its definitions. The draft was quite deficient in respect to imprisonment. There were only a few general provisions which enlarged or restricted the field of local legislation, or (where this was insufficient) of the regu- lative discretion (especially in Prussia) of administrative boards. However, a uniform and thorough-going regulation was not prac- ticable without providing for numerous incidental details, and particularly for the undertaking of costly and permanent buildings ; and this would have meant the postponement of the entire statute. § Ü7. The Code of the North German Confederation. — There is perhaps no other example of a code of the importance of the *' Norddeutsches Strafgesetzbuch " being prepared in a large State in so short a time. The preliminary draft entrusted to a commis- sion appointed by the Bundesrath on October 1st, 18()9, was on the 'The ideas and objections brought forward by Jleinzc ("Staats- und strafrechtliche Erortungen zu d(>m amtlichen Entwürfe eines Strafgesetz- buchs für den norddeutschen Bund". 1S70) have proved to be without foundation. In contrast to Ileinze, cj. Bar in "Archiv f. preussischen Strafrecht" (1870), pp. 83 et seq., and Rmlorff, "Strafgesetzbuch für d. deutsche Reich" (2d ed. p. 19). 355 § 67] MODERN TIMES [Part I, TiTLE V 31st (lay of December, 18G9, submittefl to the Chancellor. This commission was under the cluiirmanship of Leonhardt, who at that time was the Prussian Minister of Justice, and among its m(jre prominent members the above-mentioned Friedberg, and Schwarze, tlie Attorney-General of Saxony. The Bundesrath also promptly gave its approval^ and on February 14th, 1870, there was presented to the Reischstag a draft of the law with a draft of its enacting statute (" Einführungsgesetz "). Its Character. — It is not to be expected that, where so great haste was shown, a careful consideration of principles and their application could even be contemplated. The leading political party w-as dominated by one thought, viz., to produce something, — to show that the newly formed Confederation was in a position to produce a new legislative work of general application, and to cement quickly the national unity by means of the criminal law. However, there were numerous and important changes from the first draft, both in matter and form. Thus the provisions of the " General Portion ", recommended by the committee of the Bundesrath to be applicable to minor offenses (" Uebertre- tungen "), were made applicable ^ generally. Offenses (personal) against the princes of the Confederation or members of their fami- lies were treated in a different manner, according as there was in- volved the ruler of the offender's nationality or the ruler of the territory where the act was committed. § 47 of the " General Portion ", placing limitations upon capacity for responsibility, was given wider application ; and the requirement that a complaint lodged by the injured party precede a prosecution was extended to a larger number of cases. A new treatment was accorded to sen- tences to prison (" Zuchthaus ") " ipso facto " affecting the right to hold positions of trust and honor, in that by § 28 a sentence of this character had as its immediate consequence loss of capacity to serve in the army or navy of the Confederation and permanent loss of capacity for holding public office. This provision of the Code, although chiefly due to the influence of the military element in the Bundesrath, was more in accord with popular opinion than the too idealistic treatment of this subject found in the first draft. Opposition in the Reichstag. — In the Reichstag the draft was also dealt with in an extremely summary manner. A motion to 1 Consequently offenses ("Uebertretungen") were no longer dealt with in a third part but were treated in a single (the last) chapter of the "Special Portion" (second) of the Code. 35G Chapter XV] GERMANY SINCE 1813 [§ 67 debate the principal questions separately was rejected. The " General Portion ", and the first seven chapters of the " Special Portion " dealing chiefly with political offenses, were given imme- diate discussion in open session. Chapters 9-23 were referred to a committee of twenty-one members. The question of capital pun- ishment nearly brought about the failure of the entire work. At the second debate in open session, on March 1st, 1S70, the Reichs- tag, by a majority of ILS votes to (SI, voted for the abolition of the death penalty. (It had in the meantime been abolished in the Kingdom of Saxony.) The Bundesrath, howe\'er, by an over- whelming majority, voted to retain the death penalty for murder and for heinous cases of high treason.^ On the third reading, after the Chancellor, Count von Bismarck, had cast the weight of his authority in favor of the retention of the death penalty, the Reichs- tag, both in this matter and in a matter touching the procedure for certain political offenses, acceded to the view of the Bundesrath. The Bundesrath was thus enabled, at its session of March 2öth, 1870, to give the Code its unanimous approval ; and the Code, together with its enacting law, received, on May 3Ist, the assent of the head of the Confederation, and on June 8th, 1870, was pub- lished in Number 16 of the " Bundesgesetzblatt." Changes made by the Reichstag. — The draft, however, under- went a considerable number of changes as a result of the votes in the Reichstag. Thus, there was abolished all absolutely fixed penalties, with the exception of the two cases of capital punish- ment. In those cases where life imprisonment had originally been fixed as a penalty, the judge was empowered to inflict imprisonment for a period limited by a fixed maximum. The penalties in a num- ber of cases were reduced. The reduction of sentence for extenu- ating circumstances was extended to a greater number of offenses. The number of cases in which a prosecution could ensue only upon private initiative was also extended. The changes dealing with political oft'enses were of marked importance. In this last respect mention should be made of §§ 11 and 12, which extended to mem- bers of the legislative assemblies of the separate States and to their proceedings that freedom of speech and immunity from pun- ishment for true assertions which had been sanctioned by the Constitution of the Confederation in respect to the Reichstag. Men- ^ I.e., attempts against the life of the sovereign, against the life of one's own prince, or the prince of the territory where the act is com- mitted. 357 § {)7\ MODERN TIMES [Part I, Title V tion should also he made of the supplement to § 113^ of the ( 'rimi- nal Code, wliieh in faet should he rej^arded as a guarantee of the freedom of the citizens of the States, and by which punishment for resistance to the acts of an official is limited to cases where the official is acting within his lawful authority."* Criticism of the Code. — The " Norddeutsche Strafgesetz- buch " was not a far reaching code in the matter of reforms. Its essential merit, and one which must not be too lightly esteemed, consists in laying the foundation for uniformity of criminal legis- lation in the region included within the Confederation. More- over, it must be admitted that for a majority of the confederated States, notably e.g. for Prussia and Saxony, it entailed a very material step in advance. It must be conceded further that in all of the confederated States, while it uniformly gave better ex- pression to the prior law, in many important respects it produced better results in practice. That the Code had faults and defects is a circumstance which it shares with every other statute. Much could have been gi\en more careful deliberation, and after such deliberation could have been improved. But apart from these faults, the reproach that the Code can be justly criticized for being too mild, or that juristic theory is responsible for its shortcomings, has nothing to substan- tiate it, — a charge made by many who have scanty acquaintance with the Code or the history of criminal law. There was not sufficient time for the jurists to make a thorough-going and compre- hensive criticism of the draft of the Code ; and mere theorists, in the narrow sense of the word, had no share in the drafts.'' The criticism from outside, moreover,^ was very limited in scope, and no time was given for careful discussion of more than a few indi- vidual features. The Code of the North Germaai Confederation as the Code of the Empire. — Even before the Code w^ent into effect (January 1st,. 1871) as that of the North German Confederation, the treaty con- cluded in 1870 with the Grandduchies of Hesse and Baden and the 3 Cf. also the supplement to § 110 whereby the punishment incidental to summons for contempt is limited to the case where the order is legally valid or the action is within the jurisdiction of the official. ^ For the history of its origin, cf. the brief but excellent exposition in Rüdorff, "Commentar." ^ As to the course of events, cf. particularly Von Wächter, "Beitrag zur Geschichte und Kritik der Entwürfe eines Strafgesetzbuch für den nord- deutschen Bund". 1870. ^ For list of works and articles dealing -n-ith the criticism of the drafts, see Von Wächter, p. 18; Von Holtzcndorff, "Handbuch", I, pp. 131 et seq, 358 Chapter XV] GERMANY SINCE 1813 [§ 68 Kingdoms of Bavaria and Wiirtemherg made it certain that it would become the code of the new German Confederation. In Hesse south of the Main the Code went into effect on January 1st, 1871, and in Bavaria, Wiirtemberg, and Baden it was to go into effect on January 1st, 1872. In the meantime, however, as a re- sult of the North German statute of Ai)ril Kith, 1871, deahng with the constitution of the German Empire, the Code was prochiimed as a statute of the Empire ; at the same time it was provided that the laws of the North German Confederation then enacted or yet to be enacted should prevail as the law of the P^mpire in territory that was added. Thus the Code obtained as the law of the Empire in Hesse south of the Main from the 1st day of January, 1871, and in Bavaria, Wiirtemberg, and Baden from the 1st day of January, 1872, and in Alsace-Lorraine by virtue of a special Statute of August 30th, 1871, from October 1st, 1871. The substitution of terms appropriate for the new Empire for terms appropriate for the North German Confederation seemed to render it imperative to prepare a new edition of the Code. The changes incident to this revision were effected for the Code (but not for its enacting law) '' by the Statute of May 15th, 1871, dealing with the revision of the Criminal Code of the North German Confederation as the Crimi- nal Code of the German Empire. § 68. The Criminal Law Amendment Act of 1876. — A defect of the Code, which in some of its aspects has l)een previously criti- cized and wdiich even at the present time often leads to decisions contrary to the sense of justice, lay in the treatment of extenuating circumstances, for whicli the only criterion is the attitude of the individual judge. Another obvious defect was in the status which the charge at times might assume, the rule of the so-called " An- tragsdelicte " {i.e. offenses whose prosecution is based only upon private initiative). The unfortunate features of the last-men- tioned principle and the urgent need of their remedy soon became apparent both to the courts and the public. On the one hand, the requirement that a complaint be lodged by the injured person was extended to too large a number of offenses. On the other hand, the right to withdraw the criminal complaint and thereby effect ^ A new revision of the enacting law was not considered necessary. Here the prof(!ssion relied upon § 2, Ahs. 2 of tli(> Statute of Ai)ril 16th, 1871: "The . . . laws referred to are laws of the Empire. Where in the same there is mention of the Nortli (Jerman (^)nfe(leration, its con- stitution, territory, members, or states, ritrhts of natives, institutions of government, otTicers, officials, flag, etc., the same shall be construed as the German Empire and its corresponding attributes." 359 § G8] MODERN TIMES [Pakt I, Title V a " nolle prosequi " at the arbitrary discretion of the party in- jured (or his legal representative, as the case might he), had been given too wide a range in criminal procedure (extending even to the time of the final judgment or sentence).^ The bill for a statute amending the Criminal Code {i.e. " Straf- gesetznovelle ") which the Bundesrath, in November, 1875,^ sub- mitted to the Reichstag, went far beyond the elimination of this defect. A case arising in Belgium,'' involving a frequently uttered threat against the life of Prince Bismarck,"* led to the proposal that an ineffectual incitement to crime in its widest sense should be subjected to punishment. A special penal provision was also proposed in order to ensure the obedience and fidelity of officials of the Foreign Office.^ There were also proposed a number of more subordinate special provisions, in part suitable to their purpose and later accepted by the Reichstag. In addition to all this there was proposed a complete alteration of fundamental provisions of the " General Portion " (punishment of offenses committed in foreign countries, punishment of the so-called " completed at- tempts "). It was furthermore sought by means of broader phrasings and severer penalties to bring about a stricter sup- pression of the public utterance and circulation of doctrines that seemed dangerous politically.^ By the Criminal Law Amendment Act of February 26th, 1876, enacted after a warm debate, a part only of these proposals were enacted. The so-called " ineffectual incitement to crime " ' in § 49a (the Duchesne case) was made liable to punishment only under certain special conditions, and § 353a (the Arnim case) corresponded to the original proposal in part only. The proposed changes in the method of dealing with attempts, and in the funda- mentally different treatment of offenses committed abroad, were ' Cf. the official "Motive zur Strafgesetznovelle von 1876." 2 This was less than four years after the Code went into effect as the law of the Empire and less than five years after it went into effect in the territories of the North German Confederation and in Hesse. 3 Cf. the Belgian Statute of July 9th, 1875. ■• The ease of Duchesne. ^ The ease of Count Harry von Arnim. Concerning this, see the opinions given by von Holtzendorff (1S7.Ö), " Vertheidunfrsreden in der Untersuchungssache wider den Grafen Harry v. Arnim, gehalten von den Rechtsanwälten Dockhorn und IMunckel", Berlin (187.5). * Another unfortunate proposal of the draft had to do \\ith the intro- duction for certain eases of the so-called "Friedensbürgschaft" {i.e. bonds to keep the peace). Cf. in regard to this, SchierUnger, "Die PViedens- biirgschaft". pp. 76 et seq. ''I.e. "erfolglose Anstiftung." 360 Chapter XV] GERMANY SINCE 1813 [§ 68 totally rejected, as were also these for the extension of certain political offenses. On the other hand, the treatment of the so- called " Antragsdelicte " was subjected to a radical change. In a number of offenses the requirement of a complaint by the party injured was completely eliminated ; and the rule was adopted that a complaint once lodged could not be withdrawn. This rule, however, was subject to numerous exceptions (so as \-irtually, in some cases, to amount to a privilege of relationship between the injured party and the offender) ; and the excessive time limit within which the complaint may be withflrawn was not changed. Other Criminal Laws. — Previously, by virtue of the statute of December 10th, 1871, and as a result of the controversy with the Church of Rome, the Code had received an additional para- graph (§ 130a) which was directed against inflammatory speeches by the Clergy. The Criminal Law Amendment Act extended this § 130a so as to cover written utterances of the Clergy in the exercise of their vocation or in connection with the exercise of their vocation. Code § 287 had already been supplanted by § 14 of the Statute of November 30th, 1874, for the protection of trademarks ; and § 337 had been supplanted by § 07 of the Stat- ute of February 6th, 1875, for the verification of legal status and marriage. With the taking effect of the comprehensive Imperial Justice Act (October 1st, 1879) §§ 281-283 of the Criminal Code, dealing with criminal bankruptcy, were supplanted by §§ 209-214 of the Insolvency Regulations of February 10th, 1877. That the new institutions of the German Empire antl the needs of business rendered necessary a considerable number of special penal provisions in the nature of police regulations is quite ob- vious. It is also apparent that laws of this character are subject to frequent change. Of a more fundamental and permanent sig- nificance (and difficult, moreover, to square with the theory of criminal law) are the statute of May 7th, 1874, dealing with the Press, the statute of May 14th, 1879, dealing with traffic in food supplies, etc., and the statute of "Slay 24th, 1880, dealing with usury. The last-mentioned law gave to the judge (subject however to numerous precautions) a very extensive discretion in respect to the determination of the elements of the offense. And this may become a starting point for further indefinite statutes accord- ing to the judge a large amount of discretion in respect to morals ; which would harmonize, however, with a socialistic tendency of the State. 361 § (j<)j MODERN TIMES [Paut I, TiTLK V § (')0. The Draft Code of 1909.' — The history of riorinaiiy's legislation siiiee 1880 is the reflex of legal seienee in Germany and its various proposals of reform, and belongs rather in the field of eonteniporary legal theory. The ehief leader, both in science and in proposals for Code revision, has long been Franz von Liszt, professor in the University of Berlin.- Among those who en- tered the arena to support or to opjjose his views were notably Birkmeyer/ Van Calker,"* Seuifert,'' Wach,^ Köhler,^ Sichart, ^ Mayer.^ By 1902 the movement had so far advanced that a so- called " Scientific Commission " was appointed by the government to prepare a draft ; it comprised forty-nine members, representing every shade of thought. A first task of this Commission was to prepare and publish the materials for a comparative study of the world's criminal law. This superb undertaking, the " Compara- tive Exposition of German and Foreign Criminal Law " ''^ is a mine of information on the criminal laws of all countries. Li November, 1909, appeared the Commission's Preliminary Draft, with commentary.^' The preface to the Commission's commentary pointed out that this preliminary draft had no official status as a government measure, and was not to be laid before Parliament. It was meant as a basis for constructive criticism from all quarters. From the time of its appearance, the Preliminary Draft has been ^ [This section was prepared by the Editor, from material furnished by Dr. L. von Thot. The original § 69 of Von Bar's text is in part omitted and in part transferred to § 63, ante. — Ed.] - Some of his proposals are set forth in the following places : "XXVI Deutschen Juristentag, Verhandlungen " and " Festschrift ", Berlin, 1902. ' "Münchener Juristenverein, Verhandlungen", Munich, 1901. ^ "Vergeltungsidee und Zweckgedanke", Heidelberg, 1899. ^ "Die Bewegung im Straf rechte während der letzten 30 Jahre", Dres- den, 1901. " "Zukunft des deutschen Strafrechts", Leipzig, 1902. ' "Reformfragen des Strafreehts", Munich, 1903. * "Beitrag zur Revision des Strafgesetzbuchs für das Deutsehe Reich." ' "Deutsehe Juristen-Zeitung", Vol. VII. '""Vergleichende Darstellung des Deutschen und ausländischen Straf- rechts ; Vorarbeiten zur Deutschen Straf rechtsreform", edited for the Imperial Department of Justice by Liszt, Birkmeiier, Calker, Frank, Hippel, Kahl, Lilienthal, and Wach; Berlin, 15 vols., 1906-08. " "Vorentwurf zu einem Deutschen Strafgesetzbuch, bearbeitet von der hierzu bestellten Verständigen-Kommission", Berlin, J. Guttentag, 1909; with a commentary, "Begründung, Allgemeiner Theil" (pp. 1- 419) and "Besonderer Theil" (pp. 419-860). A "counter-draft," proposed by jurists not satisfied ^vith the official draft, has also been published: " Gegenentwiirf zum Vorentwxirf eines Deutschen Strafgesetzbuchs nebst Begründung", by Kahl, Liszt, Lilien- thal, and Goldschmidl (Berlin, 1910). 362 Chapter XV] GERM.AJ^Y SINCE 1813 [§ 69 the central object of criminalistic discussion in Germany.^- Its revision has been entrusted to a second Commission, with Lucas at the head. Representing the composite result of extremely oppo- site views, it has not entirely satisfied any school of thought. Un- doubtedly it represents an advance, and a radical advance, in many respects. Its encouraging feature is that it is based on a comprehensive attempt to embody into law the best that criminal science can propose ; and its shortcomings are due to the still im- perfect agreement among criminal scientists as to the best practical methods for applying a body of scientific principles which as yet is itself in a state of conscious growth. ^ Out of the library of literature already accumulated may be noted the following critiques: Aschrott and Liszt, "Kritische Besprechung des Vorentwurfs etc.", 1910; Mayer, in "Deutsche Juristenzeitung", XIV, No. 21, pp. 1281-1300; Lucas, in " Deutsche Juristenzeitung", XVI, pp. 721, 895, 1022, 1353, 1517, XVII, pp. 299, 423, 653, 825, 1152, 1369; Liliculhfil, Liszt, and Calker, in "Zeitschrift für die gesamte Strafrechts- wissenschaft", XXX, pp. 224-289 ; Langer, in "Zeitschrift" above cited, XXXI, 2; Gleispach, in "Oesterroichische Zeitschrift für Strafreeht", 4, 209; MicÄae^is, in "Blätter für (!('i'äiiy;iiiskunde" ; K. Meyer, ''T)ie Pos- tulate der Internationalen Kriminalistischen Vereinigung und die Be- schlüsse zweier Strafrechtskommission", in "Mitteilungen der I. K. V.", XXI, p. 224 (1914). 363 Chapter XVI OTHER COUNTRIES SINCE 1800 Austria, Netherlands and Belgium, Scandinavia, Switzerland A. Austria ^ § 69a. Austrian Legislation since 1848. § 69a. Austrian Legislation since 1848. — Von Schmerling, ]\Iin- ister of Justice in 1851, planned for a new criminal code. But his plan did not mature. The Criminal Code promulgated ]\Iay 27, 1852, was merely a revision of the Code of 1803. The system of penalties was improved ; but the Code could still not be termed in any respect a mild one.^ Like most of the other newer Codes, it substituted for " serious police-misdemeanors " the term " offense " (" Vergehen ") ; so that the triple classification became: Crimes (" Verbrechen "), offenses (" Vergehen '"), mis- demeanors (" Uebertretungen "). The efforts to obtain a realh' reformed code continued mean- while ; and in 1861-63 a draft was prepared by Hye von Glunek ; ^ but it was never enacted. In November, 1867, a supplementary ' [This section — except the first paragraph, which is from § 63 of Von Bar's treatise — is compiled by Dr. L. von Thot for this volume ; for this author, see the Editorial Preface. — Ed.] 2 There were two grades of imprisonment, — ordinary, and severe. The former signified close confinement, without chains ; no conversation with a \'isitor except in the presence of a prison officer. The latter signified solitary confinement, with iron shackles ; \asitors allowed only on ex- traordinary occasions, and relatives never. Special features for increas- ing the severity of treatment were: limited food, hard bed, dark cell, flogging. [In Silvio Pellico's " Le Mie Prigioni" will be found a realistic account of the severe kind of imprisonment, as practised in Austria in the 1820 s. — Rd.] _ ^ A liberal leader, one of Austria's most celebrated criminalists, then about ^p years of age and professor in the University ; afterwards Minister of Justice, member of the House of Lords, and Justice of the Imperial Supreme Court. 364 Chapter XVI] OTHER COUNTRIES SINCE 1800 [§ 69& law amending some of the penalty provisions did pass. In 1868, another draft was presented, but soon withdrawn. Glaser, now Austria's most distinguished criminalist, was Minister of Justice ; ^ and in 1874 he offered a new draft. This in turn failed. And so the story continued through the century; in 1881, the draft of Dr. Prazak's Ministry, and in 1891, that of Count Schonborn's Ministry, equally failed to find acceptance. Thus the Code of 1803-1852 rounded out more than a hundred years of existence.^ B. Netherlands and Belgium ^ § 696. Netherlands. I § 69c. Belgium. § {]9b. Netherlands. — The Revolution saw two early but fruitless attempts to reform and codify the criminal law ; the work of the Commissions both of 1795 and of 1798 did not obtain legis- lative sanction. A new Commission — Reuvens, Elout, and Van Musschenbrouk — appointed in 1807, produced a draft which was enacted and went into force February 1, 1809. King Louis Bonaparte's ordinance styled it a " masterpiece of humanity " ; its system was, indeed, relatively mild ; it gave wide discretion to the judge in applying penalties ; and it emphasized the mitiga- tion of sentences for good behavior. But this Code did not remain long in operation. One of the radical changes resulting from the French annexation of the Neth- erlands was that by ordinance of December 11, 1813, the French Code went into effect in the Netherlands, — although " pro- visionally " only. The Code was published in French ; there was also a translation in Dutch, but this was not an exact translation, and a royal ordinance provided that in case of doubt the French text should be the guide. Moreover, the reception of the French ^ Glaser began his professional career in 1849, with an essay on "Eng- lish-Scotch Criminal Procedure." He became a professor at the Uni- versity in 18.56, and a member of ParHament, and took a zealous and leading part for the reform of criminal law and procedure. His writings on the subject are profuse. Mn 1912 a new draft was again prepared: "Regierungs-Entwurf eines Oesterreichischen Strafgesetzbuchs." The text and commentary are officially published as a Supplement to the Proceedings of the House of Peers, in 1912, No. 58, black letter No. 90 ; the House Commission's Report on the bills, in 1913, as Supplement Nos. 58-63, l>lack letter Xo. 167. The text and commentary have also been pubUshed by Guttentag, BerUn, as Supplem(>nt No. 29' to Vol. XX of the "Mittheilungen der Internationalen Kriminalistischen Vereinigung." ' [These sections were pn>i>ared by Dr. L. von Thot ; for this author, see the Editorial Preface. — Ed.] 365 § {yi)h] MODERN TIMES [ParT I, TiTLE V Criminal Code was not effected without some changes. Thus, the i)enulties of general confiscation of property, police oversight, compulsory hard labor, and death upon the scaffold were abolished. The death penalty was inflicted by strangulation or by the sword. A royal ordinance of April 18, 1814, again appointed a com- mission to prepare a reformed legislation. This commission was ready on January 17, 1815, with a revision of the Code, and its draft was again revised by a sub-committee, Kemper and Phil- lipse ; but it failed of enactment. In 1827, the government again laid a revision before the Senate, this draft corresponded in its general part with the Criminal Code of 1809, but in its special part (specific crimes) with the French Code. But as it was still based upon the old-fashioned deterrent theory, and its penalties were exceedingly severe, the government was obliged to withdraw it. The next revision was not proposed until October, 1839; mean- while ensued a long controversy among the jurists in regard to the abolition of capital punishment and the system of punishments generally. This draft, covering the first or general part of the Code, became a law on June 10, 1840. Successive drafts of the second part in 1842 and 1843, in 1846, in 1847, and in 1859, failed of enactment. Nevertheless, the " provisional " domination of the now antiquated French Code had made various modifications indispensable ; and these were accomplished by the statute of June 29, 1864 ; this law abolished death upon the scaffold and marking with the branding-iron, extended the penalty of solitary confinement, and modified the provisions as to recidivists, and revised the definition of attempts and of specific crimes. Later modifications were effected by the statutes of April 10, 1869, and July 14, 1871. A royal ordinance of September 28, 1870, again appointed a commission to revise the Code ; the members were De Wal, L. Francois, J. Loke, A. De Pinto, M. S. Pols, A. J. Modderman, and Th. Beelaerts Van Blokland. The commission submitted their draft on May 13, 1874; but it was not enacted. In 1878 (under Minister of Justice Smidt) and again in 1880 (under Minister of Justice Moddermann) new drafts were submitted to Parliament ; this last draft was enacted on March 3, 1881, to go into effect on Dec. 1, 1886; and, with various subsequent amendments, remains the Code in force. This Code, the fruit of independent labor of Dutch jurists, has distinctively a national character. Its notable features are 366 Chapter XVI] OTHER COUNTRIES SINCE 1800 [§ 69«/ its division of criminal acts into two parts ; the simplicitj' of its penal system ; the abolition of humiliating penalties ; the impor- tant part played by solitary confinement ; the careful definition of the acts liable to punishment in respect to their subjective ele- ments ; and the abolition of special rules of mitigation.- § ü9c. Belgiiun became a separate kingdom in 1830-33. The history of Belgian criminal legislation, until the time of its inde- pendence and its separation from the Netherlands, is identical with that of the Netherlands. After that date, until 1867, the French Code Penal was put in force in Belgium. Preparations for a reform of the Criminal law began as early as 1834, when a commission was appointed for the revision of the Code Penal. In 1848, a new commission was appointed, which submitted the result of their labors to the Parliament in 1855, and this became a law in 1867. This Code is in substance a remodelling of the French Criminal Code. With various amendments, it remains the Code in force. C. Scandinavia ^ § 69d. Denmark. I § G9/. Sweden. § 69e. Norway. | § 69g. Finland. § ()9f/. Denmark. — Danish codification of criminal law in the 1800 s was at first only partial in its scope. The statute of October 4, 1833, punished crimes against corporal security and liberty. The statute of April 11, 1840, punished theft, fraud, forgery, etc. The statutes of April 15, 1840, and March 26, 1841, dealt re- spectively with perjury and arson. In the year 1850, a commis- sion was assigned the work of preparing a draft of a complete criminal Code. This draft served as a foundation for the work of a new commission appointed in 1859. With this last draft as a basis was prepared the criminal Code in force at the present time, which went into efi'ect on Feb. 10, 1866. The most impor- - Drafts of a new Criminal Code have since been prepared, but without enactment, by the Ministries of Cort van der Linden, in 1900 (pub. Belinfante, entitled "Herziening van het Wetbock van Strafreeht"), and of Loeff, in 1904 ("Ilandlingen der Staaten-General", 1904-05, Band 80). The subsequent ministries of Xelissen and Regout. in 1911 and 1912. have abandoned the plan of a complete revision, and have sought to re- vise the Code piecemeal, by separate bills from time to time. ' [These sections were prepared by Dr. L. vox Thot (for this author, see the Editorial Preface) ; except § (39f/, on Finland, which was prepared by the translator, Mr. Walgrcn, from Professor Forsmann's treatise, cited in the Editorial Preface. — Ed.] 367 § 09e] MODERN TIMES [Pakt I, Title V tiint later modifying statutes are: the statute of May 11, 1897, dealing with the punishment of acts of violence committed against iiniocent persons, and the statute of April 1, 1894, dealing with explosives.' § Q9e. Norway. — In Norway the first movement toward modern criminal codification is found in the criminal statute of 1814, which specified, in its 9()th Article, in accordance with the act of the French Declaration of the Rights of Man, that " no one should be convicted or punished except by virtue of a criminal statute." This notable law (Art. 9G) further prescribed the imme- diate preparation of a criminal code, to take the place of the antiquated Code of the King Christian V. A provisional ordi- nance of 1815 abolished the barbarous methods of i)unishment in the Code of Christian ; and State Councilor Chr. Krogh was intrusted with the preparation of the draft for a new code. On his death in 1828, a new commission was appointed (under J. H. Vogt as president) ; their draft and commentary appeared in 1832-1835. The Storthing {i.e. Parliament) accepted the draft in 1839, and the King approved the statute on August 20, 1842. This first systematic codification of Norway's criminal law was based upon the revised Hanoverian Code, although influenced by the French Code Penal. In January, 1885, a general revision was once more undertaken ; the State Council, with Bernhard Getz at its head, was commis- sioned to prepare a draft. This draft, first, published in 1887,^ became a law and went into effect on January 1, 1905. Its dis- tinguished author unfortunately did not live to see the fruition of his labors; he died in 1901. The new Code was a notable embodiment in legislation of the most advanced ideas of reform. It contains no death penalty, nor short periods of imprisonment, and it provides for indeterminate sentences of dangerous oft'enders likely to relapse into crime. § 69/. Sweden. — In 1809, Parliament appointed a commis- sion, under the presidency of Professor Holmhernsson, to prepare 1 Parliament now has before it a draft of a new Criminal Code. ^ "Udkast til almindelig borgerlig Straff elov for Kongeriget Norge, med Motiver", Kristiania, 1896: "Udkast til Lov om Faengselvaesenet om Forbrydelse of Frihedsstraffe, med Motiver", Kristiania, 1896. The former was translated by Rosenfeld and Urbye in 1902, as Supple- ment No. 20 to the "Mittheihmgen der Internationalen Kriminalistischen Vereinigung" (Gutentag, Berlin). Numerous critiques of this advanced Code have appeared in the journals of criminal law. 368 Chapter XVI] OTHER COUNTRIES SINCE 1800 [§ Q9g a system of complete codificatiün, both priv^ate and criminal. The majority of the commission concluded that an entirely new draft of the criminal code should be worked out, on the foundation of science and of foreign legislation ; in consequence of this, Professor Rabenius (to whom the criminal code had been assigned), and also certain of his colleagues, quit the commission. Of the remain- ing members, StaafF, Richert, and Afzelius prepared the draft of 1815, and laid it before Parliament. The commission busied itself, for the next ten years, exclusively with the codification of private law, and did not return to the preparation of the criminal code until 182G. At that time the commission was working in cooperation with the Norwegian commission. The revision of the criminal code was ready in 1832, and was based upon the Bavarian, Hanoverian, and Austrian codes, and their respective revisions. After considerable criticism by numerous jurists (Boethius, Rabenius, Grubbe, Attcrbom, Holmbergsson, Ceder- schiold), a new commission published in 1839 a revised draft. In the year 1844 the commission (now enlarged by adding Schlyter, Bergfalk and Richert) published its draft and commentary. This revision took the advanced step of recognizing only one kind of punishment, namely, simple imprisonment in seven grades, and was not accepted by Parliament. For twenty years more, reform took the shape of special separate statutes, — abolition of the death penalty ; abolition of whip- ping and church penance (for theft, pilfering and robbery) ; pun- ishment of forgery and fraud ; punishment of murder, man- slaughter, and personal injuries; method of solitary confinement. In 1862 the government presented a new draft code, which was accepted with few changes and went into effect on February 16, 1864.1 § 69<7. Finland. — After the union of Finland with Russia, in 1809, penal legislation there was at a standstill for fifty years. The subject was resumed in 1863, and a bill was introduced in the " Stands " or Estates, declaring the principles on which a new Code should be prepared ; the desire being to obtain their assent to the dominant principles before proceeding with the great task. Inasmuch as the Code of 1734 contained penal provisions in conflict with the spirit of the age, and did not prescribe suffi- ciently severe punishment for many offenses, partial reforms were made in the interim. A provisional code was also prepared, 1 A new draft criminal code is again before Parliament. 369 § G9/i] MODERN TIMES [Pakt I, Titlk V to operate until the new Code slunild l)e completed ; but it failcfl to receive the sanction of the g(jvernment, because it abolished capital punishment. Another provisional law was thereupon enacted in 1S07, but its promulgation was postponed because of the defective conditions of the prisons, and by the time this had been remedied, the new Code was almost ready for enactment and hence the law of 1867 was never put in force. A committee had been appointed in 1865 to draft a code in accord wutli the principles ratified by the Estates in the Assembly of 1863. This draft was introduced in 1875, w^as subjected to the criticisms of judges and jurists, and was then recommitted to another commission in 1881. After various vicissitudes, this draft became a law and was finally promulgated on April 14, 1894. D. Switzerland ^ § 69h. First Period : to 1830. 1 § 69^. Third Period : since 1848. § 69i. Second Period : 1830 to 1848. | § 69/i. First Period : To 1830. — With the new epoch in Swit- zerland came great legislative activity. Numerous codes and drafts of codes were produced, in one Canton after another. But on the whole they exhibited in their tenor a cautious conserva- tism. The legislators realized that neither the French Code of 1810 nor Feuerbach's Bavarian Code of 1813, would be exactly suited in their original form to the genius and traditions of the Swiss people. In the first place, Switzerland had never possessed a single common law of crimes ; nor had it a professionally educated judi- ciary capable of administering a new and borrowed code. In the second place, the philosophic construction, the abstract prin- ciples and generalizations, of the new-style Codes were alien to the traditions of Swiss legislation, — concreteness and simplicity. And in the third place, the rigorous, unbending, and elaborate precision of penalties in these new scientific Codes, and their plenteous use of the prison-penalty, were two features that barred their direct adoption in Switzerland, where there were not many prisons, and the judge's liberal discretion in penalties was a car- ^ [These three sections are by the Editor ; their authority is the treatise of Dr. L. Pfenninger ; for this wTiter and work, see the Editorial Pref- ace. — Ed.] 370 Chapter XVI] OTHER COUNTRIES SINCE 1800 [§ 69/i dinal tradition of criminal justice. — And, indeed, in the earliest of the Swiss Codes now framed could be seen emerging these same traditional traits of its people, — a repudiation of philosophic and doctrinal formalism ; a refusal to attempt to solve all cases in the Code without leaving wide discretion to the judge; and an avoidance of elaborate definition and systematization. The first but short-lived eftort for a national code was the Criminal Code of the Helvetian Republic (May 4, 1799), founded on the French Code of 1791. But in 1803 the Helvetian Republic came to an end ; each Canton became once more independent in its legislation, and only five preserved the Helvetian Code. Never- theless its influence had been important and useful. Its provi- sions represented a fusion of German and French ideas, and were much better adapted to Swiss needs than either the French or the German Code itself. In the other Cantons, the materials serving as authorities in criminal law were now varied enough, — ^the old customary law ; the old statutes ; the Carolina ; Feuerbach's treatise ; the Helvetian Code; and the French and the German Codes of 1810 and 1813. Gradually this complex of authorities was superseded by codi- fication. Between 1805 and 1830 five more Cantons adopted Codes (in St. Gall, indeed, twice over, 1807 and 1819). During the same period and until 1838, in Germany, only one Code — Feuerbach's, for Bavaria — was enacted ; though numerous drafts were worked upon. This long interval of legislative uncertainty and inactivity was due partly to political conditions, partly to the tedious methods of preparation. In Hanover twenty-five years elapsed between the resolution calling for a code and the final Act of its adoption. The struggle between governmental absolutism and popular demands made it almost impossible to construct a criminal code which would satisfy both ministry and representative assembly. In Switzerland, the methods of legislation were not thus hampered, and the result was a large progress towards needed clarification of the law. It is frequent to speak of the Swiss Codes of this period as mere imitations of either the French or the Austrian or the Bavarian Code. But they should rather be regarded as the natural product of the indigenous law, revised to suit the times. In one important feature they notably showed their native trait, by avoiding the faults which Mittermaier never ceased to criticize in the German 371 § 69;] MODERN TIMES [Paut I, TiTLE V codes ; namely, over-generalization, ovcr-systematization, and the ])assion for fixing into law the logical consequences of abstract l)rinciples in all their details, regardless of j)ractical needs or his- toric traditions. § GO/'. Second Period : 1830 1848. — In this period ten Can- tons adopted criminal codes. Most of them were enacted before 1838, when the long-delayed legislation came to pass in the Ger- man States (seven codes wnthin a few years). The July Revolu- tion of 1830 at Paris had found a quick response in Switzerland ; within six years of that European event sixteen Cantons had adopted new constitutions. The new spirit showed itself, how- ever, most notably in the field of procedure rather than of sub- stantive law ; for Mittermaier and his school of jurists were now emphasizing measures of reform of criminal procedure throughout Europe. Basel's Code w^as based on its own earlier one ; it was the sim- plest and clearest of all ; giving wide discretion to the judge, it still preserved its local tradition of severity. Zurich's Code was its first, and followed German models, but was marked by lenity of rule and by simplicity and brevity of expression. Vaud's Code combined German and French features, while avoiding the severity of the former ; it was mildest of all in its spirit, and broadest in the discretion given to the judge. Luzern followed German models, but without accepting their severity. Thurgau kept closest of all to the German type. Common characteristics of all the Swiss Codes, in relative con- trast to the other European legislation, were simplicity, lenity, and judicial discretion. The topics of criminal intent, negligence, attempt, accomplices, conspiracy, etc., notably exhibit this. Oftenses against public law were not so emphasized as in the Ger- man codes. Treason received the death penalty in Zürich and Thurgau only ; the whole subject was a minor one in the Swiss legislation, Avhile in Germany it received elaborate attention. § 697. Third Period : since 1848. — From 1848 to 1870 there were sixteen codes (new or revised) enacted in the Swiss Cantons ; and since that time a dozen more. Some still looked to France as a model ; some looked to Germany ; a few sought indepen- dently to adapt their own traditions to their own needs. As in other countries, the political events of Europe in 1848 showed their influence here. Political offenses were handed over in part to the Federal Government in 1853. Another no- 372 Chapter XVI] OTHER COUNTRIES SINCE 1800 [§ 69j table feature was the abandonment of minimum penalties, as well of numerous petty distinctions fixed in the text of the law, i.e. by enlargement of the judicial discretion. Freiburg stands out as one of the most progressive Cantons ; it was the first to abolish the death penalty and imprisonment in chains. In the Swiss Codes, as in the German ones of the same period, is seen a more or less groping uncertainty iii the use of penalties. Imprisonment with hard labor was applied with the greatest diversity of terms, varying from a few months to a life-time ; ordinary imprison- ment was used with equal variety ; imprisonment in chains was abolished in all but three codes ; the death penalty was retained in all but three ; flogging found a place in almost all of the codes, — ■ though after ISOo it was never used ; honor-penalties — loss of all civic rights, or of specific ones — were widely employed. The doctrines of intent, attempt, accomplices, and the like, show (as in the earlier codes) a marked simplicity and liberality in contrast with the German legislation. The traditional duty of the citizen to give information of a known crime, i.e. the crime of failing to do so or failing to hinder the offender — an offense universally preserved in the German legislation, and punished e.g. in Saxony's Code by four years' imprisonment — was almost ignored in the Swiss codes. Political crimes showed the most notable contrast. A totally different spirit from that of Germany was visible in the Swiss pages. In the first place, the death-penalty for treason, freely used in the four great German codes, was abandoned in all those of Switzerland, and in many of them not even a minimum penalty was prescribed by law. Again, the kinds of acts defined as polit- ical offenses were relatively few ; the very chapters on this sub- ject were (in the phrase of a German jurist) " idyllic in their simplicity " ; their brief provisions took no more than from four to twenty-four sections, while the German chapters extended into sixty and seventy sections. The contrast was visible in the elabo- rate definitions of the various criminal acts of assistance, connivance, and preparation, by which the German legislators sought to draw into the shadow of political crime all possible conduct. The truth was (as Mittermaier pointed out), the German Govern- ments lived under the obsession that political unrest was to be ascribed to the mildness of the deterrent criminal law ; and thus, in spite of the jurists' protests, the spirit of official terrorism gained ground more and more. The most innocent and well-disposed 373 § G9j] MODERN TIMES [Paht I, Title V citizen might now come into the grasp of the law for acts and utter- ances which a suspicious government and a facile judiciary chose to interpret as offenses under the new definitions. As late as 1866, Professor Holtzendorff's " Journal of Criminal Law " reported the case of Zachariae, an eminent professor, who came in danger of criminal proceedings for contempt, because of a critical comment on a Supreme Court decision. — In this field the Swiss Codes showed a thoroughly different attitude. And, lastly, the traditional simplicity of the Swiss legislation is again in this period notable, in contrast with the German elabo- rate particularity. The length alone of the codes suffices to show ; for the four chief German Codes ranged between three hundred and fifty and five hundred and thirty sections, while the Swiss Codes ranged between one hundred and fifteen and two hundred and ninety sections, except for three which reached three hundred and fifty. Meanwhile, unification of law w^as becoming a principal problem. The German political unification of 1870, and the consequent movement there towards unification and centralization of law, gave an impetus to a similar movement in Switzerland, as well as a tendency to imitate the German imperial legislation in cantonal law. Ten new or revised cantonal codes were enacted between 1870 and 1889. A general feature was the elaboration of the definitions of offenses and the lenity of the penalties. The Fed- eral Constitution of 1874 abolished the death-penalty and flog- ging; and though the Amendment of 1879 restored liberty of cantonal action, only a few Cantons took advantage of it, and capital punishment has never since been inflicted. Imprison- ment and fines became the principal penalties. Reformation as the avowed objective led to many changes in the method of apply- ing penalties. In form, the newer Codes (in spite of German influence) preserved the traditional Swiss traits of simplicity, concreteness, and avoidance of theorizing. The tendency towards unification gradually matured. Since the early intercantonal treaty of 1291 (w^hich concerned murder, arson, robbery, and wrongful distress) there had been no efforts of the kind until the short-lived Helvetic Criminal Code of 1797. Then the question slumbered again, while the new ideas were being assimilated in cantonal experiments, until 1865. In that year a notorious case of the flogging penalty moved national feeling to shame. From then onw^ards the subject was steadily 374 Chapter XVI] OTHER COUNTRIES SINCE 1800 [§ 69i before the public. The draft Constitution of 1S72 contained an Article granting to the Federal Government legislative power over criminal law and procedure ; but this Constitution was rejected at the polls, and the new draft, accepted by the people in 1S74, lacked that Article. In 1887, the Swiss National Bar Associa- tion declared in favor of exclusive Federal jurisdiction and uni- fication. The Federal Council authorized the preparation of an exhaustive report on the cantonal criminal law ; this report, by Carl Stooss, professor at Bern, took the form of his well-known treatise on Swiss Criminal Law.^ In 1888, with other leaders, he founded the " Swiss Journal of Criminal Law ", which has since been the useful organ for the historical and critical discus- sion of the subject. Since that time, three drafts have been pre- pared by Professor Stooss ; but thus far, none has had the fortune to be enacted.^ ^ " Grundzüge des schweizerischen Strafrechts " (2 vols., 1892-93). * " Schweizerisches Strafgesetzbuch, Protolcoll der zweiten E.xperten- kommission" (Luzern, Vols. 1^, 1912-13) ; "Vorentwurf zu einem Schweiz- erischen Strafgesetzbuch nach den Beschlüssen der Expertenkommission '' (Berlin, J. Guttentag, 1908, Beilage zu M. I. K. V.). 375 PART II HISTORY OF THE THEORIES OF CRIMINAL LAW CHAPTER I. ANCIEKT GREECE AXD ROME. CHAPTER II. THE MIDDLE AGES. CHAPTER III. FROM GROTIUS TO ROUSSEAU. CHAPTER IV. FROM BECCARIA TO FEUERBACH. CHAPTER V. FROM BENTHAM TO HERBART. CHAPTER VI. GERMANY FROM HEGEL TO BINDING. 377 Chapter I ANCIENT GREECE AND ROME § 70. Practical Importance of Theories of Criminal Law. § 71. The Beginnings of Specula- tion. The Sophists. § 72. Socrates. Plato. § 73. Aristotle. § 74. Influence of Aristotle. The Stoics. The Epicureans. Scepticism. Roman Philosophy. Hierocles. § 70. Practical Importance of Theories of Criminal Law. — Indubitably from time immemorial, the criminal law has been found an absolute necessity for the public order and for human society in general.- Among the multitude of questions concerning ^ Concerning the matter contained in this Part the following writers may be consulted: Henke, "Handbuch des Criminalrechts und der Criminalpolitik", I (1823), pp. 52-129; Bauer, "Die Warnungstheorie nebst einer Darstellung und Beurtheilung sämmtlieher Strafreclits- theorien" (1830); Hepp, *"Ucber die Gerechtigkeits- und Nutzungs- theorien des Auslandes und den Werth einer Philosophie des Strafrechts" (1834) ; Hepp,* "Darstellung und Beurtheilung der deutschen Strafrechts- systeme", 2d Part (2d ed. 1843, 1844); .4. Freytag, "Die Concessional- gerechtigkeitstlieorie des Strafrechts, nebst einer kurzen Darstellung und Beurtheilung der übrigen neueren Theorien des Strafrechts" (184G) ; KösÜin, "Neue Revision der Grundbegriffe des Criminalrechts" (1845), pp. 764-850; A. Franck, "Philosophie du droit penal", (1864); Räder, "Die herrschenden Grundlehren von Verbrechen und Strafen in ihren inneren Widersprüchen" (1867); Heime,* in Von Hollzendorff's "Hand- buch des deutschen Strafrechts", I (1871), pp. 239-344; Lni.stncr, *"Das Recht in der Strafe" (1872) ; Wharton, "Philosophy of Criminal Law" in the eighth edition of his "Criminal Law of the United States" (Philadelphia), pp. 1-29. — Tlu^ works marked with an asterisk [*] contain the most complete presentation of the subject as a whole. Hepp pays the most attention to the jurists and Laistner deals more with the philosophers. Cf. also P. Janet, "Histoire de la philosophic morale et politique" (2 vols., Paris, 1868). - The theories of criminal law are usually classified as "Absolute" and "Relative." By the former it is maintained that punishment is something inherent iii the very nature of the crime, — a necessary conse- quence of the crime. The latter seek to justify punishment by showing that it has an effect which is in harmony with some purpose whose attain- ment is, on other grounds, desirable. Since this purpose can be found only in the conditions imposed by the social life of human beings, these relative theories regard punishment as coming into existence only with the State which governs these conditions. The absolute theories, how- ever, regard punishment as possible without the State, and as ha\ing 379 § 70] HISTORY OF THE THEORIES OF CRIMINAL LAW [Part II the riglit to inflict punishment, there is one which constantly arises : How is it possible that the public power enforcing morality (and as such must criminal law after all be regarded) may require an injury of the wrongdoer, while in private morals, rules such as : " Love your enemies ", " Do good to them which hate you ", " Pray for them which despitefully use you " find (not always practically, but at least theoretically) absolute acceptance ? P^ven the purely practical individual, who is not affected by doubts of this character, will at times be confronted with the question whether the State, when it punishes one act and not another, or remodels its legislation in accordance with this or that tendency, is pursuing the proper course. He will have occasion to consider whether the axe and guillotine should be regarded as relics of former barbarism and persistent error, or as exemplifications of the supreme and ultimate law of human or even divine justice. Now these questions are of immediate practical importance, at least for the legislator, and their determination will also be indirectly reflected in the practice of the courts. For example, been adopted by the State for the sake of accomplishing certain purposes. The so-called "mixed" theories ("Coalitionstheorien") seek to reconcile the various theories of criminal law, and especially the absolute and the relative theories of the foundation of punishment. A reconciliation of the kind last mentioned is conceivable in various ways. Thus, for ex- ample, one may give punishment an absolute foundation but modify or limit its exercise in accordance with purposes of expediency in attaining certain results. It may also be undertaken to prove that the absolute foundation of criminal law is not prohibitive of a regard for attaining" certain purposes {i.e. beneficial purposes), but rather that it contemplates such. Those classifications are of a more superficial character which make a distinction between theories of right and theories of utility (in- terest), according as the theories taken up assume a special legal right oa the part of the punishing State {e.g. acceptance of a contractual sub- mission of the crime to punishment, outlawry of the criminal as a result of the crime), or are simply satisfied with reasons of utility or the empirical indispensability of things. The same can be said of the "Contractual" theories ("Vertragstheorien"), the "Compensation" theories ("Vergüt- ungstheorien"), and the "Restitution" theories ("Erstattungstheorien") which found punishment upon a requisite restoration or removal of the social injury caused by the crime, etc. Heinze (p. 243) would insert aa intermediate class between the division of theories into "Absolute" and "Relative", i.e. those absolute theories which, without regarding punish- ment as of absolute necessity, yet find the legal justification of punishment solely in the crime that has been-committed, and which treat punishment as an absolute right and not as an absolute duty of the State, and also as a privilege of which use may possibly not be made. However, it is diffi- cult to definitely fix the limits of this intermediate division, and Laistner (p. 180) has therefore declared himself opposed to it. More detailed and minutely classified survej^s may be found in Bauer, "Abhandlungen aus dem Strafrechte und Straf processe", I (1840), pp. 28 et seq.; Hepp, I, pp. xiv et seq. They have the fault however of presenting the theories only in part or strained to suit their methods of classification. 380 Chapter I] ANCIENT GREECE AND ROME [§ 71 the courts will have occasion to consider whether or not at cer- tain times they have the right, although keeping within the stat- utory limitations upon punishment, to make a public example of some individual. Questions arise such as : 1. What acts are to be punished by the State? 2. What methods of punishment shall the State employ? 3. What are the considerations which should influence the State in varying the degree of punishment? Apart from adherence to habit and a blind following of tradition, these questions are not to be answered until the fundamental prin- ciples underlying criminal law itself are first established. For it is by these principles that the scope and form of criminal law are to be determined. §71. The Beginnings of Speculation. — Just as to-day the purely practical instinct of many individuals finds nothing objec- tionable in the numerous and (to say the least) but thinly veiled inconsistencies of the criminal law, so was it, at the beginning of the historical development of criminal law, with those who first contemplated the nature and efl'ect of punishment. Their thought simply reflected {i.e. gave back like a mirror) the efl'ect of punish- ment from one or the other viewpoint or perhaps a \ariety of viewpoints. Retaliation ^ tending to restore the universal har- mony ; purification of the land from the effects of the evil deed and from the presence of the offender ; the appeasing of the wrath of the gods ^ {i.e. the idea of divine justice) ; reformation of the offender ; and deterrence of others, — all these appear upon the screen in variegated succession. The early peoples seem all unconscious of the warring consequences of such contradictory principles. The Sophists. — As a matter of fact, the first thoroughgoing investigation deserving the name of scientific attempt began with the Sophists. Protagoras ^ definitely abandons the idea of retaliation. " He who desires to inflict punishment in a rational manner," says he, according to Plato,'* " chastises not on account of the wrong that has been committed — for that which is done 1 The Pythagoreans advanced as the principle of criminal law, tln' *^avTLiriirovdU re kuI iaou ." CJ. Laislncr, p. 8: "Leidet er, was er ffethiin. so ist es der geradeste Rechtsweg", "t6 'PaSaßävdvos ölKaLov." Ari.a.lvei KaKÖv, iWä to ißTretriv", Epidetus, "Diss.", Ill, 7, 12. Cf. Hildenbrand, "Geschichte und System der Rechts- und Staatsphilosophie", I (1860), p. 516. 38S Chapter I] AXCIEXT GREECE AND ROME [§ 74 that he, in his attitude and inclinations, did not happen to be in harmony with the law, or that he was not clever enough to avoid the evil resulting from his act. Scepticism. — The Sceptic philosophy (the school of Pyrrho) , while it renounces all explanation, substitutes authority and that which exists positively for the conventional ideals. It regarded theoretic certainty as impossible, but since there must be some compass by which to guide practical existence, it acknowledged as such simply tradition and that which exists, Roman Philosophy. — The Roman philosophy, while it did not attain to a system of its ow^n, rested essentially upon the founda- tion of Stoicism. But (as was in keeping with its tendency to Eclecticism and a characteristically practical bent) it softened the harsher conclusions of Stoicism through broad humanitarian ideas, which were then paving the way for Christianity. Thus Cicero ^ is solicitous that punishment shall not exceed its proper degree. He would have punishment fall upon only a few, but fear hold all in check.^ Seneca ^ repeats with approval the words of Plato concerning the healing power of punishment, and even with rhetorical pathos justifies capital punishment as a benefit which, in extreme cases, must be conferred upon the criminal. AVliile, by the Roman jurists, the purposes of deterrence, of security against the individual offender, and sometimes also of retalia- tion with no ulterior motives, were introduced merely for the justification of individual practical observations and decisions, there is an almost Christian sound to their words. According to Epictetus, the wise man should regard even the greatest criminal as one unfortunate and confused, and should not be angry with * "De Off.", I, 25 (89). ^ "Pro Cluentio", e. 46 (128) : "Statuerunt enim majores nostri . . . ut metus videlicet ad omnes, pcena ad paueos perveniret." Cf. also "De Off.", 1, 11 (33) : "Atque baud scio an satis sit, eum qui lacessierit, injuria? sute ptenitere, ut et ipse ne quid tale posthac (faciat), et ceteri sint ad injuriam tardiores." 6 "De Clement.", I, 21. "De Ira", I, 5, 14-16; II. 31. Cf. Ulpian in L. 6 § 1 D. "De poenis", 48, 19: ". . . ut e.xemplo deterriti minus delinquant." L. 16 §10 (Saturninus) : "Xonnumquam evenit, ut aUquorum malefioiorum supplieia exaeerbentur, quolies nimium multis personis grassantibus exemplo opus est." L. 20, D. "De pcxmis": "Si poena alicui irrogatur, receptum est comment ieio jure, ne ad heredes transeat. Cujus rei ilia ratio videtur, quod pcx'na constifuitur in emenda- tionem hominum qu:e mortuo eo, in quem constitui \idftur, d(\>;init." Cf. also, L. 6 § i. f. "De custod. reor.", 4S, 3 ; L. 9 § 3 D. "De off. proc", 1,16; L. 1 § 1 D "De .J. et J."; L. 131 D. "De V. S." : "...Poena est noxae vindicta." Cf. also, e.g. L. 5.5 C. "De episc", 1, 3; Nov. 12, c. 1. Heinze in Von HoUzendnrff'x "Handliuch", I, pp. 247,248. and especially Abegg, "Die verschiedeneu Strafrechtstheorien", pp. 78 et seq. 389 § 74] HISTORY OF THE THEORIES OF CRIMINAL LAW [Part II him ; furthermore, he enjoins every one to work for the improve- ment of others. If we may (h'aw conchisions from other utter- ances of that estimable philosopher and pupil of P^pictetus, Marcus Aurelius, who sat upon the imperial throne, he may have regarded the cardinal idea of punishment as merely the reformation of the individual, since he considered it a mandate of morals " to love and assist those who have fallen and who do wrong. Hierocles. — In spite of numerous artificial expressions, Stoicism really devoted to the province of ethics only a superficial atten- tion. There was, however, in ancient times, an adherent of the Neoplatonic philosophy, wlio had a deeper comprehension of the problem of criminal law than was shown in these last out- croppings of Stoicism. Neoplatonism sought to bring the sub- jective tendency of Stoicism into alliance with the objective gen- eral ideas of the universe of Plato ; as a result, it reproduced in part Plato's views regarding punishment. Hierocles' ^ explana- tion of punishment was to the effect that the law, which did not want evil to be done, maintained itself by means of punishment. The good could not be indifferent to a breach of the law^, and respect for the law must be restored in the oft'ender himself. In accord- ance with this opinion, punishment was aimed at the act. The person of the offender was unimportant, for, as observed by Hier- ocles, the object was to save the Deity from the reproach that it was inflicting punishment upon the individual, and, on the other hand, to preserve the idea of human freedom, without resorting to a fictitious contract made by the criminal in respect to his own punishment. But how, then, does the punishment come to attach itself to the person of the wrongdoer and impose upon him an evil ? This, said Hierocles, might appear to human notions as being a merely coincidental result. But, in truth, the oflfender thus satisfies the conditions of the law, and the purpose of the Deity can be nothing other than to improve the offender through suffer- ing, which in its true nature is not suffering but something which ultimately shows itself as a good, since its origin is in God. Hier- ocles, like Plato, believed that it was better to be punished than to remain unpunished, and that the offender, by having undergone punishment, attains a kind of restoration. After having under- gone punishment he should be regarded as having again attained a certain average of worthiness and virtue. ^ Cf. Zeller, III, 1, p. 683. * Concerning Hierocles cf. especially Laistner, pp. 45 et seq. 390 Chapter I] ANCIENT GREECE AND ROME [§ 74 Sijice Hierocles believed that the only purpose that could be ascribed to the Deity was that of reformation, and appears to reject those ideas of retaliation allied with the prominence given to the freedom of the will in Xeoplatonism, it can be said that his theory failed to demonstrate the justice of punishment from the human viewpoint. ^lankind, since it must live and act in accord- ance with divine will, thus has the right to repudiate the deed as a thing not to be condoned ; but (we ask) how does it come about that it can lay hands on its author f The appeal here made by Hierocles to divine law ^ is merely a confession that the philosopher has failed to find the truth which to us seems so evident. There is a very mystical sound (which reminds one of the modern " Soi- rees de St. Petersbourg " of Count J. de Demaistre) in Hierocles' observation that the peculiar benefit (the ultimate puri)ose) of the law was to bring together the criminal and the judge inflicting the penalty. As Laistner properly points out, it sounds almost as if the crime were a thing to be desired, in order to display the majesty of the law in offering up the offender as a victim. In reality, like Plato, he avoids the entire problem. Since the philos- opher proceeds upon the basis that punishment, in accordance with its very nature, cannot be an evil, and it is only the wicked- ness within the individual that is an evil, there yet remains the problem how the civil community can be justified in inflicting an evil, in the form of punishment, upon any one. In other words, it amounts to nothing other than the fallacy already committed by Plato, — a confusing of an absolute, divine, and mystical view- point with that human viewpoint which is the only one of which we can conceive and which alone is practical. All these theoretical dissertations had no effect in ancient times upon the practical shaping of the criminal law. The most influence it could have had was when a philosopher such as ]\Iarcus Aurelius was emperor and judge. To be sure, it did render less harsh a number of criminal sentences. Yet the stress and the confusion of the times were too great to have been influenced by mere contemplative study. As has already been pointed out in Part I of this work (the history of criminal law), a remarkable influence was exercised by Christianity. It still remains for us to ascertain how Christianity theoretically adjusted itself to criminal law. ' 'Swdyei olv 6 vdfxos ws ((prjrai toi>s ireVK6Tai Kplveiv Kal toi)s ir((pvK6Ta^ kukv- viddaL 8i aix* The passages referred to is: Romans, xiii, 1-6. "Let every soul be subject to th(> liiglier powers. For there is no power but of God ; the powers tliat be are ordained of God. Etc." ' B. 1125- (?) d. 1274. The best modern edition of his works is that prepared at the expense of Leo XIll (Ronu\ 1 II, 20, § 2, n. 3. 2 II, 20, § 1. 398 Chapter III] THEORIES FROM GROTIUS TO ROUSSEAU [§ 77 But retribution was by Grotius conceived in a sense different from that previously prevailing. The question whether punish- ment must necessarily consist in some evil for the party punished had not yet been raised. In the Middle Ages and in ancient times, retribution was deemed both a duiy and a right; to Grotius it was a privilege. Just as every right as Grotius asserted ^ is to be exer- cised only in pursuance of some rational purpose, so it was with criminal law.^ Therefore, says Grotius, even vengeance is not to be repudiated, provided it has a rational purpose, e.g., the pur- pose of preventing, in the future, injuries similar to those received. Grotius, indeed, correctly recognized vengeance as the historic root of criminal law. He posited the right to take vengeance ^ as originally belonging to every one ; it was only for reasons of expediency, notably because vengeance is so apt to transgress the limits imposed by reason, that the criminal law was placed in the hands of the judge (the State). ^ Range of Punishable Acts. — The question as to what crimes should be punished was left as completely untouched by Grotius as were the questions concerning the amount of punishment. In this regard, since he considers law and morality to be in their very essence identical, he proceeds upon the principle that sin (" peccatum ") and punishable acts (in their essence and apart from the requirements of a concrete system of law) are likewise identical. Thus, it was e.g., with the ancient Greeks, who recog- nized no principal distinction in this respect and regarded extrav- agance and arrogance (" vßpi^ ") as acts and attitudes possibly amenable to criminal punishment. The principle that punish- ment is merely a right and not a duty made it possible for him to reach the correct conclusion that the range of punishable acts is narrower than that of immoral acts. No punishment should be inflicted for acts which neither directly nor indirectly touch human society (acts the injurious effects of which do not extend to others). Since the State is not bound to punish but is merely entitled to punish, there also, according to Grotius, exists the possibility of foregoing punishment by i)ar(l()n, and as reasons for ' Thus also e.g. the right of property (11, 20, § 5). ^ II, 20, § 22,11. 1 : "Naturalitur qui deliquit, in eo statu est, ut puniri licite possit ; seel ideo non sequitur euni delu'rc puniri." '" Henee, under extraordinary circumstances. thi> right of individuals to punish can even now find a i)hice. Cf. II, 20, § 9, n. 2. ß II, 20, § 8, n. 4. Cf. also li, 20, § 40, n. 1. Tin« "Summa potestas" in the State docs not by virtue of its nature possess the exclusive right to punish : "Subjectio aliis id jus abstulit." 399 §77] HISTORY OF THE THEORIES OF CRIMINAL LAW [Paht II this pardon, considerations of utility are acknowledged as suffi- cient. Amount of Punishment. — In respect to the amount of punish- ment, we indeed find in Grotius considerable uncertainty and inconsistency. On one hand, he has recourse to the Aristotelian argument which ascribes punishment ^ not to a " Justitia assigna- trix " but rather to a " Justitia expletrix." Accordingly, he regards punishment as an adjustment of the injury (although surpassing the exact amount).^ Yet, in another passage, in the discussion of self-defense, he reaches the correct ideas that (logi- cally speaking) there is no such thing äs commensurability of guilt and punishment, and that it is merely a conscientious obligation (" Caritas ") ^ on the part of legislation to exercise moderation in the warding off of wrong. In connection herewith it is well if the legislator be given a free hand in fixing the punishment in accordance with reasons of utility, although there must be no punishment " ultra meritum " ; ^° but how define " meritum "? Justification of Punishment from the Standpoint of the Criminal. — The punishment was also justified from the standpoint of the criminal by a reference to his own will, to a voluntary acquies- cence : " qui deliquit sua voluntate se videtur obligasse poense, quia crimen grave non potest esse non punibile, ut qui directe vult peccare per consequentiam et poenam mereri voluerit." How- ever, this standpoint of voluntary acquiescence does not lead him to give to the statute law such preeminent importance as later is found in Feuerbach. It does not appear in Grotius as a founda- tion but rather a limitation of the criminal power. This is appar- ent in the sense that he considered it ill-advised not to give full enforcement to any statute that has once been enacted, ^^ since, in any case, an act which is in violation of a special criminal statute through this alone is dangerous and deserving of punish- ment : " Lex prohibens omnia peccata geminat ; non enim sim- ^ II, 20, §§ 2 et seq., and in regard to this, Hartenstein, "Darstellung- der Rechtsphilosophie des Hugo Grotius" in "Abhandlungen d. Königl. Sachs. Gesellschaft der Wissenschaften, histor-philosoph. Klasse" (1850), pp. 529, 530. ^ "Nee enim sequum est, ut par sit periculum noeentis et innoeentis", II, 20, §32, n. 2. Cf. in regard to this Laistner, "Das Recht in der Strafe" (1872), p. 64. On these grounds Grotius under some circum- stances approved also of the modified death penalties. 9 II, 1, § 10, n. 1 ; III, 1, § 4, n. 2. 10 II, 20, § 28. 11 II, 20, § 2, n. 3. — § 24, n. 1-3. Here indeed Grotius has in mind a new criminal statute. 400 Chapter III] THEORIES FROM GROTIUS TO ROUSSEAU [§ 78 plex est peccatum, sed etiam vetitum committere ", as Augustine had previously stated.^" Defects and Merits of Grotius. — The weakness of this famous legal philosopher's theory of criminal law consisted chiefly in his having, from the outset, regarded punishment as an evil. Punishment as reaction against immorality and relatively as re- action against wrong permits of an ethical and logical foundation ; but as an evil it can only be founded empirically. Thus the idea of retribution has to be invoked as an aid, and presumed without proof. But the idea of retribution necessarily implies that its exercise is not primarily a right but is essentially a duty and only incidentally a right. It has also the consequence that, what- ever treatment is required by retribution, nothing can be deducted from it for considerations of utility and humanity. Yet Grotius with accurate insight perceived that in the hands of the State punishment in every case is not an unconditional duty. But, apart from all this, the criminal theory of Hugo Grotius is remarkably superior to the attempts which, for almost two hundred years thereafter, were made by others towards solving the problem. The possibility that historic development may be justified, a point which is indisputable in the view of Grotius, but which is utterly repellent to dull and narrow minds, prevented its general acceptance. It often happens that one-sided theories have the greater following, if the consequences imported in the theories serve definite temporary needs or are capable of easier comprehension. The successors of Hugo Grotius are especially illustrative of this phenomenon. § 7S. Hobbes. — While Grotius derived the legal system and the State from a compact of individuals, yet the impulse which led to this compact was a moral one based upon the general arrange- ment of the universe. He regarded (not always consistently, however) the State as bound by this general moral arrangement, just as the individual. The adherents of the doctrine of the Law of Nature little by little allowed the element of arbitrary or dis- cretional power to appear in this com])act. Influenced by the turmoil and confusion of the English Revolution, Thomas Hobbes •- The passage IT, 20, § 3.^, is not correctly construed liy LaUlncr, p. GO Anm. 4. Here Grotius does not say that the judfre should not apply a severe criminal statute if ther(> is a {general custom of committing: the offense in question. He says merely that such a custom may he for the judge a mitigating circumstance, wliile the legislator may linil heri'iu a ground for increasing the penalty. 401 § 78] HISTORY OF THE THEORIES OF CRIMINAL LAW [Pakt II founded the State and the legal system upon a pessimistic \iew of human nature. The evil natural attributes of individuals should be held in check by the State and the law. Unlimited selfishness, or to speak more accurately, desire to injure (others, appears to him to be the fundamental characteristic of human nature. The State, accordingly, is merely an institution for coercion calculated to put an end to " war of all on all " arising from such selfishness and to the general insecurity therewith connected. Before everything else in law, punishment is neces- sary. A mere contract would soon be broken by passion, " ut aperte majus sit periculum fecisse quam non fecisse. Omnes enim homines necessitate naturse id eligunt quod sibimet ipsis apparentur bonum est." ^ Punishment has no purpose other than that of deterrence by the threat contained in the statute. Since Hobbes was not capable of any deep historical compre- hension he failed to discover the relation ^ between revenge and punishment, and he considered that punishment did not originate or become possible until the existence of the State. He thus stands primarily upon a purely relative theory to Avhich the later theory of Feuerbach exhibits a marked kinship, — although Feuerbach, as is well known, wrote in opposition to Hobbes.^ The relation between a punishable wrong and a civil wrong on one hand, and on the other the relation between criminal law and morality, is almost completely abandoned.^ To Hobbes, torts and the payment of damages have nothing in common with crime and punishment. While he also recognizes that, for example, theft, adultery, and manslaughter are forbidden by the " Lex naturalis ", and that the power of the State can not be at variance with the " Lex naturalis ", A^et in Hobbes this observation of the " Lex naturalis " is explained away by the statement that the power of the State is obliged to create the regulation and to main- tain a regulation that has once been prepared, but the kind and the manner of the form of this regulation should depend entirely upon the pleasure of the holder of the sovereign power : " Furtum homicidium adulterium atque injuria omnes legibus naturje 1 "De Give", c. 6, § 4. Cf. also "Leviathan", c. 28: "Poena malum est transgressor! legis auetoritate publica inflicta eo fine, ut terrore ejus voluntates ci\dum ad obedientiam conformentur." "De Give" was first published in 1646. - "Le^viathan", I.e. ^ "Anti-Hobbes, oder über die Grenzen der bürgerlichen Gewalt" (1798). ^ "De Give", c. 3, § 4. 402 Chapter III] THEORIES FROM GROTIUS TO ROUSSEAU [§ 78 prohibentur, cseterum quid in cive furtum, quid homicidium, quid adulterium, quid denique injuriae appellandum sit, id non naturali, sed civili lege determinandum est." '' From which it fohows further, that the amount of punishment absolutely depends upon the discretion of the " summa potestas " in the State, acting in pursuance of the " utilitas publica." The reference of the punishment to something that is past is expressly repudiated as absurd.^ A penalty fixed by statute must not be exceeded, although it is not at all necessary that there be a special threat of punishment, a mere prohibition being sufficient for the punishment of its transgressor. For that would be nothing other than to allow another to make amends for a fault committed by the legislator.'' Justification of Punishment from Standpoint of Criminal. — The justification of punishment from the standpoint of the party punished is not entirely disregarded by Hobbes, — but his argu- ment is almost inconceivably weak. Hobbes, to be sure, realized the inadequacy of the fiction that the offender in the commission of the crime voluntarily acquiesced in the punishment. As the later more detailed arguments of Pufendorf have shown, this recog- nition is not entirely unimportant in the appraisement of acts based upon the natural impulse of self-preservation, and is also in con- trast with the extreme consequences of the inquisitorial prin- ciple in criminal procedure. Hobbes, however, believed that he had done enough in this respect, since as part of the contents of the contract (upon which according to his theory the State was based) he had adopted the principle that no one should render assistance to those whom the iiolder of the " summa potestas " deemed it well to punish.^ But the right to punish, he believed, did not need to be specially transferred to the highest power in the State. It was originally possessed by " all against all." Hereby Hobbes (unconscious of the contradiction) comes back to an absolute basis for criminal law. It is not a basis resting upon an ethical idea, but merely upon a reference to that general posi- tion of warfare which is allowed to each against every one else. It is thus a founding of criminal law upon a power not controlled ^ "De Cive", 6, § 16. Here moreover ITolilies confuses the civil law question as to how ownership, etc., arises with the criminal law question as to what violations of once existing property constitutes theft, etc. ß Ibid., 3, § 11. ^ Ibid., 13, § 16. 8 /5ic/.^ 6, § 5; "Leviathan", c. 28, init. 403 § 79) HISTORY OF THE THEORIES OF CRIMINAL LAW [Part 1 1 by an ethical regulation. In the case of those crimes whose essence consists in an attack upon the authority of the State as such, and so in crimes of " lese majeste ", Ilobbes believed this pure condi- tion of warfare to exist. This principle justified such abnormal rules as the extension of certain punishments to the descendants of those guilty of high treason. Yet, as a principle, it is illumi- nated by one correct idea, viz., that (as later maintained by Fichte) the criminal law and penal statutes may to a certain extent be conceived as limitations upon vengeance and the right of war. § 79. Spinoza. — It is a peculiar phenomenon, to which Ahrens ^ has properly called attention, that opinions, such as those emanat- ing from Hobbes — the unrestrainable power of the individual uncurbed by ethical motives — and Pantheism — ascribing no independence to personality and rather regarding it merely as a transitory manifestation of the whole — are in accord in many of their results. This is especially the case, we may add, in respect to criminal law. Thus we find in the famous " Tractatus theo- logico-politicus " - of Spinoza, the founder of modern Pantheism, almost the same foundation of criminal law as in Hobbes. Accord- ing to Spinoza, law in its origin and essential nature is nothing other than force, — and naturally so, since ethical ideals presup- pose freedom. But if the activities of the individual being are of necessity determined by the universal being, then these activi- ties are incapable of any valuation in pursuance of an idea which presupposes a " should " and not an absolute " must." The large fish have the right to swallow the small fish ; and in the condition of nature every one has the right to take and do that to which his desire prompts him.^ He acts in accordance with his nature, in accordance with the law of the universe in him obtaining. With Spinoza, as with Hobbes, it is only the consequent general inse- curity which leads to the compact of the State and therewith to criminal law (i.e. that criminal law imposed by the State). This latter, properly speaking, did not come into existence until the State. In nature, every one has all that his power is sufficient to obtain ; in the State, the power of the State acts only because individuals have irrevocably acquiesced therein. The aim of the punishing power and of the criminal law is to secure obedience, as disobedience constitutes the essence of crime. Therefore, the 1 "Naturreeht", Bd. I, p. 100 (6th ed.). 2 First published in 1670. ' " Tract.", c. 16 : "Jus itaque naturale unius cujusque hominis non sana ratione, sed cupiditate et potentia determinatur." 404 Chapter III] theories from GROTIUS to ROUSSEAU [§ 79 direct purpose of the criminal statute is jear, which should be felt by the masses, who are inclined to act in pursuance of their baser sensual desires and contrary to the true laws of nature : " terret vulgus nisi metuat." In other words, criminal law is based on deterrence and determinism. It is left undecided whether the effect is to be attributed to the statute or to the execution of the punishment.^ But in one respect, Spinoza, the more profound thinker, differs very materially from Hobbes. He gives to the " lex naturalis", from which the State may not completely sepa- rate itself, a far more definite meaning than had been given by Hobbes. His philosophy of law betrays a democratic tendency in the remark (reminding one of Aristotle) that a great body of people who, united, exercise the criminal power will not readily do anything that is absolutely perverse; and so he suggests the conditions of lasting sovereignty to be the satisfaction of the true needs of the people : not a formal contract but rather rational agreement binds the subjects.'' From this there arises a far wider limitation of the power of the State in respect to what acts may possibly be punished (a matter, however, argued by Spinoza merely in regard to freedom of thought and religious belief). Influences of Spinoza's Life upon his Work. — Upon the whole, Spinoza's philosophy of the State and of law reflect in clear out- lines the peculiar circumstances of the philosopher's life. Spinoza belonged to the Jewish race, which was at that time almost uni- versally persecuted. This circumstance excluded him from active participation in public life ; and he therefore found in quiet medi- tation and investigation of the relations of things the highest pleasure and calling of humanity. For this reason he does not expect much from the power of the State; but he does demand at least a certain guarantee of quiet and the enjoyment of the natural essentials of life and above everything else freedom of investigation. With the possible exception of the pro\ince of freedom of thought and religious faith, there was hardly an oppor- tunity for such a sensitive and retiring disposition to have any conflict with the criminal law, — a conflict experienced by even noble natures who come into real participation and active share in public life. He regarded criminal law as essentially intended only for the rabble, and therefore views it from its baser side as a * The evil entailed by the punishment must be greater than the ad- vantage obtained by the crime. * "Ex quibus concludimus, pactum nuUam vim habere." 405 § 80] HISTORY OF THE THEORIES OF CRIMINAL LAW [Part II means of deterrence intended to hold in check e\il passions and thus he overlooks its general and higher ethical significance.^ This is in history a constantly recurring conception and attitude. Especially is this the case among the ranks of the fairly comfort- ably situated and blase middle class, who, to be sure, pay taxes but in other respects are inclined to follow their own special interests, until some unexpected case reminds them that it is not always the common people who come into contact with the crimi- nal law and that the correct limitation of the criminal power of the State is an ideal and at the same time a substantial benefit to all. § 80. Pufendorf. — Samuel von Pufendorf,^ in that part of his work which deals with criminal law, was fully in accord with the point of view accepted by Hobbes,^ and he often expressly appealed thereto.^ Like Hobbes, he denied the originally ethical character of the relationship between man and man ; and, like Hobbes, he considered a man in the natural state as entitled to all which his individual power enables him to attain. He derived the criminal law, belonging exclusively to the State, from a simple waiver of the right originally belonging to each individual, in pursuance of his own interest, to cause harm to any one who in his view, opposed this interest or stood in his way."* Punishment, in the true sense, according to Pufendorf, exists only in the State, and is inflicted " al imperante." Of retribution as a principle of punishment, he would have nothing, — " non est homo propter 8 In accordance with this conception little attention can be paid to the criminal. Spinoza entertains no doubt as to the expediency and legal propriety of the death penalty. Where he deals specially with punish- ment, he almost always speaks of the scaffold as "formido malorum." C/. Laistner, "Das Recht in der Strafe" (1872), p. 78. 1 Cf. especially the third chapter of the eighth volume of his compre- hensive work, "De jure naturae et gentium", first published in 1672. The chapter referred to is entitled: "De potestate summi imperantis in vitam ac bona civium in causa delicti." 2 I am unable to concur in the statement of Heinze ("Staats- und strafrechthche Erörterungen"), p. 254, that Pufendorf holds essentially the same conception as Grotius. 5 Cf. particularly. I.e., § 5, where in opposition to Grotius, it is argued that criminal justice belongs to "justitia expletrix." ■* Pufendorf, like Hobbes, contemplates the right of punishing as ultimately merely a question of might. No attention is given to founding punishment from the viewpoint of the party punished. The idea of voluntary subjection to punishment is very correctly and effectively criticized: "quum nemo delictum admittat quin simul speret, sese latendo aut aUa ratione poenam declinaturum." However, in § 23, it is stated that no one can complain about the severity of a punish- ment which has been made public previous to the commission of the offense. 406 Chapter III] THEORIES FROM GROTIUS TO ROUSSEAU [§ 80 poenam, sed poena propter hominem," ' and consequently the principle of the " lex talionis " in criminal law, according to his view, is both practically and theoretically impossible. The true character of punishment exists rather in a security against future injuries, — i.e. deterrence of others, or reformation (or relatively a " making harmless ") of the criminal himself. In consequence of this (and in accord with a fallacy of Pufendorf and of many others), as applied to intentional homicide, the death penalty under certain circumstances aj)])ears justified. Comparison with his Predecessors. — I'ufendorf, as perhaps no other, spread abroad through Germany those fundamental maxims of the absolute power of the State, which eliminated the State of the jNIiddle Ages and its social system. Yet his theory of the absolute power of the State does not have the one-sided, harsh, yet essentially logical character, which distinguishes the theory of the State and law propounded by Thomas Ilobbes. As with Spinoza, the " lex natura; " and the " lex divina " had with Pufendorf a definite meaning, and the " publica utilitas ", the " salus reipu])lic8e ", is the foundation and at the same time a limitation of the absolute power of the State. Nevertheless, the dangerous point of this principle, which otherwise would so readily lead to the theory of the sovereignty of the people, was blunted by Pufendorf, in that he set forth a presumption, by virtue of which the acts of the power of the State correspond to the " salus reipublicte." This is his point of resemblance to Hugo Grotius. But unlike Grotius, instead of having the State and law proceed from the inner and ethical nature of man, Pufendorf laid its foundation merely upon the aspiration and need for external adxantage and security, or at any rate for a certain imj^rovement. Thus he substantially divested law of its ethical cliaracter. On the other hand, he considered man, in the condition of nature, merely from the moral standpoint ; and so it came about, that while, to the law, as it was to obtain in the State, an ethical character was denied, the law whicli existed before the State, or was contenij«)- raneous therewith, was regarded as prevailing from the moral point of view.^ Thus the result obtained from regarding law as a moral duty was partially carried o\'er to the State and to the law " VIII, 3, § 17. * C/. e.g. the investigration "De defensione sui" (Lib. II, c. 5) and "De jure necessitatis" (II, c. 6). 407 § 80] HISTORY OF THE THEORIES OF CRIMINAL LAW [Pakt II in the State. So law and morality, in spite of the faet that Pufen- (lorf seemed to deny their common source and original unity, are confused. It was a mistaken attitude on the part of Hobbes and Spinoza to conceive the criminal law as a means of chastisement (discipline), and not primarily as a protection, or (as it were) an outer covering of the otherwise existing right, turned toward an aggressor. This aided the omnipotence of the State, but departed farther and farther from the original starting point of Ger- manic law, which alone was able to give stability to the criminal law. Value of his Work. — Nevertheless, that Pufendorf was of eminent service for the advancement of law, and especially of criminal law, cannot be denied. Although he was referred to by Leibnitz as " homo parum jure consultus et minime philosophus ", and although his didactic and dialectic manner ^ at times proved quite barren, yet, on the other hand, he knew the law applicable ill particular cases, and had an interest in practical questions, — both of which elements are often lacking in a philosopher. His discussions of responsibility,^ self-defense, necessity and measure of punishment,^ must have brought new life to a judicial practice that was ossified and clinging steadfastly to authority. And in. one important respect, as contrasted with Grotius, one can observe the progress of the times. Pufendorf rarely regarded it as neces- sary, in his investigations of criminal law, to have recourse to theology or biblical history; while the extensive investigations of Grotius as to whether his conclusions harmonize with the prac- tice of Moses and the Hebrew judges and kings, make a strange impression to-day. For a long time after Grotius, Hobbes, and Pufendorf, criminal theories made no remarkable progress, and, in the 1700 s there were even attempts to revert from the emancipation from theology, which these men had accomplished. Yet, during this period, there were certain of the more important authors whose opinions and points of view seem worthy of mention. ^ Perhaps it may be of interest to the adherents of the "Xormen- theorie" ("rule theory"), which is now so popular, to learn that this theory is suggested in Pufendorf, VIII, e. 3, §§ 2, 4. He also says that the penal clause of the statute is intended for the magistrate, not for the criminal. Cf. also Hobbes, "De cive", XIV, §7, §23, who is almost more explicit. However it arises only incidentally. « Cf. 1, ec. 4 and 5. ^ VITT, c. 3, §§ 18 et seq. Little attention is given to the varieties of punishment. 408 Chapter III] THEORIES FROM GROTIUS TO ROUSSEAU [§ 81 § (SI. other Writers. Locke. — Locke,' like Ilob'oes, proceeded upon the theory of a right belonging originally to the individual to revenge real or fancied wrongs according to his discretion, — a right which, through relinquishment, passed over to the State. Fundamentally regarded, criminal law and the right of self-preser- vation appear to him to be identical ; therefore the purpose of punishment is security, through the reformation of the criminal, if it can be so obtained, — ■ if it cannot, then through the death penalty. To inflict the latter is in no way difierent from the killing of lions and tigers, whom every one has a right to hunt. The criminal (and this reminds one of the later theory of Fichte) has no reason to complain of the punishment. Ke has declared, through his crime, that with law and equity he is not concerned, and also that every restriction is removed which protected him from violence and injustice.- For this reason, the amount of punishment is determined merely by the conscience of the party inflicting the same. However, there is no absolute obligation to punish ; a penalty can, if it seems expedient, be remitted. The ideas, from which an actual advance of criminal law could arise, lay in the dift'erent utilitarian purposes of punishment, which, however, portray in proper order and in a correct relationship, the absolute principle of justice regarded, as it were, from the other side. The absolute theory (which does not include relative theories) stands essentially for continuity of purpose, — at any rate it operates as a warning to change, in case criminal law and its theories start upon a false path or are led astray in following out a relative theory. Leibnitz. — Historically speaking, little influence has been exer- cised by the ideas of Leibnitz, which appear scattered throughout his " Theodicee." Leibnitz,^ in his fundamental idea, reminds one of Plato. To Leibnitz, as to Plato, reward and punishment seem to be part of a principle of harmony governing the entire world, and, as externally, so internally in the criminal himself, the punishment restores the obscured predominance of ideas 1 "On Government" (London, 1690), II, especially § 87. Cf. Laislner, pp. 72 el seq. ^ § 8. •^ "Nouveaiix essais de theodicee", I, c. 2 (ed. Erdmann, I, p. 215 b), I, 70, 71, 73, 74 (Werke, ed. Erdmann, I, pp. 521 el seq.). 1, 73 says as to punishment: "un rapport do eonvonance qui fontcnto non souloment I'offense, mais encore les Sages qui hi voient coiiunc une I)t'ne niusique on bien une bonne architecture contento h>s esprit bien faits." 74: "... Dieu a etabU dans I'Univers une connexion entre la peine ou la recompense et entre la mauvaise ou la bonne action." 409 §S1) HISTORY OF THE THEORIES OF CRIMINAL LAW [Paut II divinely implanted. Naturally this leads to the purpose of refor- mation. But Leibnitz does not entirely abandon the prineiple of deterrence. He says, however, that it must be harmonized with the purpose of reformation. As with Plato, however, everything is subjected to an absolute theory. Satisfaction (" Genug- thuung "), which is dependent for its meaning upon the accept- ance of freedom of the will, is the primary element ; * and justice, according to Leibnitz, does not rest upon the possibly changing needs and opinions of mankind. A deeper insight is shown by that passage in which Leibnitz points out, as one of the most effec- tive means of punishment, the general scorn of the community towards the criminal, and he compares this especially with excom- munication among the early Christians.'' This is not far removed from the principle that punishment may conceivably be something other than an external evil. Cocceji. — Samuel von Cocceji's " Theory of Lidemnity " ^ (which likewise exercised little influence), based upon the opinion that a wrong, in addition to a material injury, also created an ideal injury, and that this must be rectified by the penalty,'^ was founded upon a divine dispensation of things. Yet it is quite peculiar in this, viz. : that punishment is regarded as neces- sary for the preservation of the right ordained for the individual and the authorities of the State (including the right to obedi- ence), and that the absolute theory was practically debased into the old and oft-repeated consideration of expediency.^ Simple in- demnity, in case of an offense, does not suffice, since, in that case no one would suffer from having committed an offense, and there would thus be incitement towards the commission of wrongful acts. The " lex talionis " appeared to Cocceji essentially the correct form of punishment,^ and the existence of a wrong presupposes the violation of a right. But the jurist felt obliged to modify the idea of the " lex talionis " into the idea of an evil of equal impor- * Cf. I.e., I. 74. ^ "Nouveaux essais sur rentendement humain", II, c. 28. ^ " Introductio ad Henriei de Cocceji Grotium iUustratum " (1751), diss. XII. ' L.C., § 555. ^ This was conformed to by Cocceji from the very beginning. ^ § 554 : "Sane talio non intelligi potest de retribuendo ejusdem generis modo. . . . Sed tantundem illud sestimationem recipit. at cujus aliquid pensamus cum aliis rebus vel factis qu.^e sunt vel ejusdem quantitatis vel qualitatis." Cf. § 561, n. 8; The death penalty is also justified (accord- ing to the prineiple of the "talio"): "si tanta est malitia ut spes euni meliorem fieri posse nulla supersit." "Arbitrio judicantis definitio talionis reservata est." 410 Chapter III] THEORIES FROM GROTIUS TO ROUSSEAU [§ 81 tance.^'' Thus it becomes as pliant as wax and as elastic as rubber ; and by the maxim that every act that is contrary to a statute or the command of a superior is also a violation of a rio;ht (namely, the right to obedience"), everything can be justified. The dis- tinction between law and morality is often confused, since the violation of a right is presumed, unless the law expressly gives to a person the privilege of acting in the maimer in question. Thomasius and Wolff. — ^ The legal phil()S()j)luTs and jurists who preceded Beccaria, and sought to found criminal law upon a relative theory, contributed just as little to the advancement of the cause. '- Thomasius reproduced, in the short remarks which api)ear in his " Fundamentes juris natura? et gentium ", the theories of Pufendorf. Expiation, insofar as it is undertaken by men, he lf. "■' "The deliberate choice of detrimental acts is wickedness and every wicked violation of a statute is a crime." I, p. 275 ; II, p. 109 and other places. 1^ I, p. 306. 'ä I, pp. 177 et seq.; I, pp. 250 et seq. At times even prizes and rewards for good behavior are recommended. I, p. 1(35. 421 § 85] HISTORY OF THE THEORIES OF CRIMINAL LAW [Pakt II subjects. ^^ One is forcibly reminded of the methods of the General Code of Prussia, promulgated a few years after the appearance of Wieland 's work. That his views were those of many of his time is also aj)i)arent from a comparison with the " Draft of the Ba- varian Criminal Code " by Kleinschrod, which was so ably criti- cized by Feuerbach.-" § 85. Kant. — When such errors were prevalent, it became a matter of practical importance, on one hand, to mark the distinc- tion between law and morality, and on the other hand to save the law from being completely reduced into mere considerations of expediency in the individual case. A theory which could under- take this successfully must necessarily create a remarkable impres- sion upon contemporary thought, however striking may be its defects in other respects. This primarily explains the remarkable influence of Kant's theory of criminal law.^ Kant absolutely denied to man the possibility of knowledge of " things in themselves " (truth in the objective sense) ; but (as is well known) by a rather daring mental leap he saved the possi- bility of an ethics based upon the free will of the individual. This he did by the acceptance of a standard for practical action which presupposed freedom, God, and immortality, and was capable of being directly known, and was inviolable. This " categorical imperative " meant for him, in criminal law, retribution. Uncon- ditional retribution must come upon the criminal. In this retri- " I, p. 147. "The citizens are usually too light-minded and unin- telligent." "There must be aroused in them a realization of these restric- tions {i.e. of natural freedom) in order to make of them good citizens." -" Compare the account of this Code, ante, Part I, § 58. Wieland (I, p. 406) says: "Men who are so steeped in wickedness that they can- not live without either actually undertaking injurious acts or with rest- less vigilance await the first favorable moment for the execution of an already planned injurious act, are beneath all reformation and nothing but death is able to effectively put a check to their crime." The Bavarian draft (§ 129) says: "Capital punishment shall be inflicted only upon those guilty of high treason, murder, manslaughter, rebellion and in- cendiarism, since criminals of this character can not be so guarded in prisons and jails that immediate danger is avoided : they might regain their liberty and again commit such crimes." § 130. "Cases of this character are deemed to exist, if such criminals have so strong a fol- lowing that there is reason to fear that their adherents may set them free from the place of punishment to which they are brought or if the number of such criminals is very large or especially if an offender is of such a character that any other punishment does not suflSce to render the state and our other true subjects secure against him." As to this, cf. Feuerbach, "Bibliothek für peinl. Rechtswissenschaft" (1804), vol. II, part 3, pp. 166 et seq. The death penalty is also incidentally justified by Wieland (I, p. 419) because it made it no longer necessary to feed in- corrigible men (among whom the murderer is not always included). 1 "Metaphysische Anfangsgründe der Reehtslehre", 1797, pp. 195-206. 422 Chapter IV] THEORIES FROM BECCARIA TO FEUERBACH [§ 85 bution commanded by justice, no place is left for additions or for modifications on grounds of expediency. Upon it de- pended the dignity and value of all human institutions. " If justice ceases, then no longer is it worth while for man to live upon the earth." " Even if civil society should dissolve with the consent of its members . . , the last murderer found in prison must first have been executed, so that each may receive what his deeds are worth." - From this standpoint the justice and necessity of the death penalty are especially asserted. Criticism of Kant's Theory, — It is easy to refute Kant. If one will be self-respecting and not permit himself to be dazzled by a famous name, Kant's theory hardly deserves the status of a scien- tific attempt. It is nothing other than an appeal to pure sentiment, — a sentiment which, even in Kant's time, varies greatly with the individual. It would be very difficult to-day for a man of scientific training to maintain that there is a uniform categorical imperative, in the way that Kant accepted it. Ethics has its historical phases of development ; and this fact, as well as legal history in general, relentlessly militates against the acceptance of capital punishment for murder as a principle valid from the very beginning. Kant was correct merely in this, that the fate of the individual criminal should not (as in his time was so often maintained) be made to depend upon indefinite considerations of expediency. For this purpose, his emotional appeal to the " categorical imperative " superior to time and space was admirably adapted. Since, however, it is impossible to carry out a theory of retribu- tion, so Kant (although it was not his task really to carry out any theory) was actually ol)liged to give up his theory, which did not proceed further than aphoristic statements ; for, in many cases, he substituted for the real retribution of like with like a retribution according to eft'ect or feeling.^ However, his " categorical impera- tive " involved him in some serious entanglements. E.g. an ille- gitimate child, being a child contrary to law, should, strictly speaking, not exist, ami consequently it is difficult to declare the murder of such a child as punishable. The demands of honor appear as " categorical imperative " (is there anything that may not at some time and under some circumstances appear as " cate- gorical imperative " !) ; "^ as a result, on the question of duelling, he 2 P. 199. ' P. 19,S. * The guillotine and radical action by the State had also in thoir timo been moral duties. 423 §80] HISTORY OF THE THEORIES OF CRIMINAL LAW [Part IT finds no proper avenue of escape. Here the " categorical impera- tives " contend with each other and, although they should stake their life on the issue, they form here an exception. However Kant's theory very properly criticized and refuted that sophistry that the criminal himself wills the punishment as a con- sequence, and that it is for this reason justified.' The same ex- posure, indeed, in a somewhat more decisive manner, had already been made by Hobbes and Rousseau. That it so soon afterwards could have been set up by Feuerbach, is indeed proof of the vitality of such legerdemain of logic, with which, the solving of the weigh- tiest problems is so lightly attempted, and ever anew. § SC). Fichte. — Like Kant, Fichte made a complete separation of law and morality,^ and based law upon the correct, although in itself meaningless, conception of freedom.^ As Fichte based the right of property upon an arbitrarily con- ceived contract of abandonment by non-owners to the owners, and as he bases the State merely upon contract, so he regards crime simply as a breach of contract, i.e. of the rights guaranteed by contract. This breach on the part of the criminal, strictly re- garded, results in a severance of all legal relations between the State and the criminal, i.e. the loss of rights on the part of the criminal. He who is without rights is an outlaw.^ Still the State ^ P. 203 : "If then I enact a criminal law against myself as a criminal, it is in me the pure Reason, legislatively giving a right (homo noumenon) which subjects mj^self to the criminal law as a person capable of crime, i.e. as another person (homo pheenomenon), together with all others in the compact of the citizens. In other words, not the people (each in- di\adual among them) but rather the court (the public justice), i.e. some one other than the criminal, establishes the capital punishment, and certainly the social contract does not contain the promise to allow one- self to be punished and thus to dispose of one's self and one's life." 1 This was characteristic of the period, which again is closely related to Hobbes. Abicht, "Ueber Belohnung und Strafe" (2 Parts, Erlangen, 1796), would also completely separate moral retribution (diAane retribu- tion) from civic retribution (criminal justice). (As to this, see Hepp. I, pp. 61-64.) Carl Chr. Erhard Schmid, "Versuch einer Moralphilos- ophie" (.Jena, 1790), distinguished {cf. especially §397): coercive evil — this can be applied by any injured individual and by the State in his name, chastisement — this is an affair of the educator, making an example — the authorities are entitled to do this by virtue of the social contract. Schmid believes that only the Infinite can punish, i.e. fLx a lesser degree of happiness in accordance with deserts of character. Kant even had previously in his "Kritik der praktischen Vernunft" portrayed punish- ment simply as moral retribution. As to this see Hepp, I, pp. 24, 25. 2 "Grundlage des Naturrecht nach den Principien der Wissenschafts- lehre" (Jena and Leipzig, 1796), 2 parts. Nothing relative to criminal law was offered by Fichte's later and mystical "Staat.slehre, oder über das Verhältniss des Urstaates zum Vernunftreiche." « II, pp. 113-130. 424 Chapter IV] THEORIES FROM BECCARIA TO FEUERBACH [§ 86 does not take complete advantage of these harsh results. It can, as a general rule, satisfy itself with a guarantee that, in the future, the criminal will better observe the contract ; and it finds this guarantee in the so-called " Abbiissungsvertrag" {i.e. contract of expiation), from which the criminal derives " the important right " that he is not declared absolutely without rights but is to be punished.'' Thereupon, by virtue of this " Abbiissungsvertrag", the criminal is subjected to a reformatory punishment. But, as above stated, the "Abbiissungsvertrag " merely const!-, tutes the general rule. There are crimes of such a character that the criminal does not appear to be able to give a satisfactory guar- antee of his future observance of the contract. In these cases " Abbiissung " (" atonement ", i.e. punishment in its proper sense) does not take place ; there still continues the total deprivation of rights. As a result of this deprivation of rights, the State is justi- fied, for its own security (and, if need be, for the security of the rest of the citizens), in taking the criminal's life. But, as Fichte expressly emphasizes, this is not punishment, but rather a police measure. A purely judicial sentence of death is, according to Fichte, an impossibility.^ And since, if the " Abbiissungsvertrag " did not exist, any action would be permissible against the criminal, who, in the abstract, has absolutely no rights, he believes that it is not only right but also expedient for the law, which necessarily regards the " Abbiissungsvertrag " as a benefit to the criminal,^ to also assume the piu-pose of deterrence.' Fichte, indeed, had but little conception of the specific conse- quences upon the individual criminal of the theory of deterrence and the theory of security. The controversy- between Grolmann and Feuerbach soon enough revealed that these theories did not harmonize. Fichte made absolutely no attempt to specify what acts are punishable (deserving of punishment). The most he ' II, pp. 97, 98. ^ II, p. 124. Upon the whole Fiehte is opposed to the death penalty. He justified it onlv as Cato, according to iSallust's account, justified the throttling of the followers of Catiline. Cf. II, pp. 124. 125. Tlie strange presumption that a murderer is incorrigible is merely an attempt to harmonize the advanced theory with a principle of the positive law which is considered indispensable. « In Fiehte, the principle of deterrence at times assumes the coloring of the principle of the "talio." Cf. 11, p. 100. "Every one must neces- sarily stake as much of his own rights and freedom as equals the rights of others . . . which he seeks to injure (the punishment of equal disadvan- tage, 'lex talionis')." ^ II, pp. 99 et seq. 425 § S()| HISTOllY OF THE THEORIES OF CRIMINAL LAW [Pakt II proposes, })y way of all()ttin^vhere ascribes to criminal law is merely in conform- ance with the first stages of legal development. However, some things may be learned from Fichte. In the first place, there is involved in this assumption of the outlawry of the criminal a relative truth well worthy of consideration ; it leads to a valuation of criminal statutes which is much more correct than e.g. in the later theory of Feuerbach.^'- In the second place, the philosopher has a better perception than many of the jurists soon to be mentioned, in that he sought a basis for criminal law from the viewpoint of the criminal also. 8 II, p. 112. ^ "Die Philosophie des Rechtes", I (3d ed.), pp. 230 et seq. 1« I, p. 169. '1 The purpose of reformation is in inextricable contradiction to this mechanical manner of conception ; for according to Fichte the law has nothing to do with the understanding. But how there can be reformation without a change of the understanding, it is difficult to conceive — since even mere habit certainly changes the understanding. Fichte here (II, p. 114, cf. pp. 118, 119), just as is done later by Grolmann, avails himself of the statement that it is political (?) reformation that is aimed at rather than moral reformation. '- The criminal statute (if it would rest upon historical necessity and not upon despotism) should be the limitation rather than the basis of the punishment. 426 Chapter IV] theories from beccaria to feuerbach [§ 87 § 87. Grolmann. The " Special Prevention " Theory. — Grol- mann's theory (that of special prevention), ' Hke tliat of Fichte, found the basis of punishment, as against the criminal, in this, viz. : that, against him who opposes government by law, there may be a right of coercion, which may go even so far as to include lii.s destruction. In his search for a moderation of this coercion,- he finds it in the use of a means whereby the one threatening dan- ger {i.e. the criminal) can, for the future, no longer be regarded as such. This means is punishment.'^ The criticism of Grolmann, made by Feuerbach especially and by others, that he would make the mere possibility (apparently the evil intent) of an act rather than its actual commission the reason for punishment, is, upon closer investigation, not well-founded. Grolmann, indeed, would prevent future wrongful acts of the crim- inal, but the punishment is to be directed in reality against the character of the criminal as revealed by the act he has committed, from which the commission of future crimes seems indicated as likely. An evidence of this ^ (although Grolmann himself does not bring it out in his definition of j)unishment) is the fact that he takes the unlawful disposition,'' i.e. the permanent character of the crim- inal, as the determining factor in the fixing of the punishment to be applied, and advances the rule ^ that the greater the wrongful tendency of the criminal, and thus the more dangerous he is for the future, the greater must be his punishment. The extent of the wrongful tendency, he sees reflected in the nature of the right violated by the illegal act.^ Herein the untenability of his entire theory becomes openly manifest. Criminal law and morals, according to Grolmann's conception, have nothing to do with each other. He formally protests against the assumption that a man should be improved morally by his punishment.^ Punishment should be directed not against the wrongful tendency of the heart, but rather against the 1 "Grundsätze der Criminalreehtswissensehaft nebst einer systemat- ischen Darstellung des Geistes der deutschen Criminalgesetze" (Giessen, 1798); "Ueber die Begründung des Strafrechts und der Strafgesetzge- bung" (Giessen, 1799). 2 Cf. "Begründung", p. 1.57. The State woukl itself become degraded if without further reason it killed the banished criminal. ä P. 32. ^ Cf. especially pp. 120 et seq. ' P. 54. 6 P. 121. ' "The more irreparable and important the violated right, then the more urgently does the interest of humanity demand the 'not doing' of the act, and the greater the wrongful tendency." « P. 125. 427 § 88) HISTORY OF THE THEORIES OF CRIMINAL LAW [Pakt II will. But how shall one distinguish them ? There can be no doubt that under Grolmann's theory attention must be chiefly given to the individuality of the criminal in the jBxing of his punishment. The answer to the question whether or not he whf) has once com- mitted a crime will presumably repeat it or later commit some other crime, depends more than anything else upon the individuality of the criminal and the special circumstances of the case. While Feuerbach often avails himself of sophistry in his attacks upon Grolmann, yet he is quite correct in maintaining that a code which can only decide as to men and their crimes in pursuance with broad lines and general principles adapted to the majority of cases, presupposes the impossibility of determining punishability in ac- cordance with the character of the offender. The fixing of punish- ment in accordance with the importance of the right violated by the crime is a radical departure from the original principle. The theory of reformation acts more logically, since it absolutely aban- dons all fixed punishments, and makes the amount of the punish- ment dependent upon the reformation of the criminal, which can not be determined until later. Grolmann's " special prevention " theory necessarily succumbed to Feuerbach's method of attack. It could not serve as the foun- dation for real progress in criminal law. The most it could have done would be to introduce a more lenient enactment and adminis- tration of the criminal law in cases where the criminal, punishable in accordance with a presumed divine justice, might be regarded as harmless for the future. During the time when the life of the State is in the process of development, the consideration given to making the individual criminal harmless is very subordinate, and one to which the judge who comes into contact with the individual criminal can even with a wide discretion as to punishment scarcely do justice. And so even Grolmann himself realized that he was being driven into a corner by the attacks of his friend and opponent Feuerbach. In his later work dealing with the foundation of criminal law, he is considerably influenced by Feuerbach's ideas of deterrence. § 88. Feuerbach. — In contrast with the foregoing theories, Feuerbach's theory ^ was calculated to serve as a foundation for ^ "Revision der Grundsätze und Grundbegriffe des positiven peinliehen Rechts" (1799), 2 parts; also the article in the "Bibhothek der peinl. Rechtswissenschaft" (1798), part I, division 2, No. 2; also the work "Ueber die Strafe als Sicherungsmittel " (1800); and "Lehrbuch des gemeinen in Deutschland geltenden peinlichen Rechts" (1801). 428 Chapter IV] THEORIES FROM BECCARfA TO FEUERBACH [§ 88 that positive legislation of which there was at that period urgent need. His efforts are directed primarily towards freeing the criminal law from the prevailing theories, which regarded the positive criminal law merely as an imperfect attempt to give expression to an ultimate criminal law corresponding to the nature of things. These theories declared a judge to be justified in setting aside a rule of positive law where it did not seem to be in harmony with that law derived from general principles. The speculation upon and the discussion of the purposes of criminal law, and the theory connected therewith that moral freedom was a prerequisite to the complete amenability of the criminal to the law, were especially well suited to justify the above-mentioned method of procedure, and at the same time to give the judge the necessary appearance of being bound by the statute. This resulted in that arbitrary discretion of the judges which has been described in Part I. This arbitrary judicial power even extended to an increasing of the penalties ; since it was considered that, as the judge in some cases dispensed with the statutory penalties, so in other cases he was en- titled to increase the penalties in pursuance of general principles. As opposed to all this, the issue now was how to strengthen the authority of the positive law of the statute, and also (since the Caro- lina, the codification of the common law, had in many respects be- come impractical) to show how much might be accomplished by a precise and up to date code. Feuerbach indeed, primarily, had only the first purpose in view. But the second was a logical and natural result ; consequently it was not merely an accident that Feuerbach was soon entrusted with the composition of an important code. His Theory. — Feuerbach's theory (he also vigorously opposed the intermixture of theology and criminal law) ^ is in substance as follows : It is a function of the State to prevent wrongs. Xot being sufficiently able to attain this object by direct physical compulsion, it is therefore entitled to use psychological compul- sion by threatening an evil to those who would commit a wrong (a crime). This threatening, in itself, is permissible; it violates the right of no one. But without /»/y?/ »if /j^ the threat would be- come ineffectual. Therefore the fulfilment of the threat is jus- tified. This is so even from the standpoint of the ])arty punished. Since he had knowledge of the threat of punishment prescribed for 2 Cf. also the criticism of Crolmann's "Criminalrechtswissenschaft" in the "Bibliothek für peial. Rechtswissenschaft", Vol. 2, St. 1. p. 3()(). 420 §88] HISTORY OF THE THEORIES OF CRIMINAL LAW [Part If the wron«?, wliich he, even apart from this, was bound to avoid, he has vohnitarily subjected himseU' to the fulfilment of the threat- ened punishment. Feuerbach's theory accordinfrly is called the " theory of psy- chological coercion " or the " theory of deterrence through threat of law," and it is proper so to designate it. But perhaps it would be more correct to call it the " theory of the positive law." The punishment is justified by the positive law. It extends so far and only so far as can be expected from the operations of a positive statute, i.e. a published statute, made known to everyone. This is the true essence of his theory ; deterrence played a more subordi- nate part. As may easily be seen, this theory was not entirely original. In its fundamentals it frequently reminds one of Pufendorf . But in its thorough treatment of details it is new and original. Origi- nality is also a fit word with which to describe Feuerbach's polemic against the theory of moral freedom, and his ability to formu- late laws. In certain respects Feuerbach and Kant form a parallel. Both seek a permanent support for criminal law. Kant, however, in his idealistic fashion, derives our knowledge of criminal law, as it were, from Heaven, by means of apodeictic maxims of eternal justice, which are without proof or further foundation, — ■ axiomatic facts, as he believes. Feuerbach bases criminal law upon the power of an earthly legislator over the baser impulses of human nature. Herein there lies a great, although limited, truth. The power of an earthly legislator and the baser impulses of human nature permit of a certain calculation, and consequently Feuerbach's theory ac- complished a greater step in advance than the grandiloquent emotionalism of the philosopher of Königsberg. Above everything else, Feuerbach denies that punishment, as inflicted by the State, is moral (retributive) punishment based upon a pretended and, to us incomprehensible, moral freedom ; the assumption of this moral freedom entailing for criminal law the most absolute contradictions, as Feuerbach ably demonstrated. Punishment is civic punishment (i.e. temporal, inflicted for pur- poses of State as distinguished from morality). It is based upon the clear pronouncements of the statute, which finds its justifica- tion, from the viewpoint of the criminal, in the latter 's voluntary submission, brought about by means of the threat of punishment, and from the viewpoint of the State, in the possibility of deterring from crime and thus preventing crime by means of the tlu'eat. 430 Chapter IV] THEORIES FROM BECCARIA TO FEUERBACH [§ 88 This threat of punishment has, essentially, nothing to do with the individual. With him, only the fulfilment of the threat is con- cerned ; and this, according to Feuerbach, is somewhat of a second- ary matter, and is requisite only that the threat may be effective in the future. In this way, Feuerbach was able to increase the authority of the statute law, and also to effectively demonstrate the subordinance of the judge to the statute law.^ For now the issue no hunger rests upon the nature of the individual, which is so difficult to ascertain, but upon whether or not there is included in the act those char- acteristic elements which the legislator has established for every case ; since it is only these that can be the criterion, in the ab- stract threat contained in the statute. That which lies in the heart of the criminal and that which is external, coming from at- tendant circumstances, are equally unimportant. There must be but one exception, and that is where the threat of punishment could not be effective in advance, — where an intelligent decision of the author of the act in accordance with the baser impulses against which the legislator has interposed the threat (itself a men- tal impulse) was not possible. Thus Feuerbach acquired a firm position for answering the ques- tion as to criminal capacity.^ Moreover, since he found the ulti- mate purpose of the threat of punishment to be security from violations of right, i.e. the subjective right of the State and of individuals, he, at the same time, acquired, a criterion '' for deter- mining the punishability of a crime in relation to its objective or subjective dangerous character. Objectively, its dangerous char- acter is appraised according to the importance of the jeopartlized or injured right, and subjectively according to the dangerous na- ture and intensity of the baser impulse. It is apparent that all these principles are easily grasped and are adaptable to legislative enactment. In their presence, illu- mined by Feuerbach's polemic, the doctrines of moral freedom and of indeterminism vanished into thin air. Against all the other relative theories with their special purposes of punishment (se- curity against the individual offender, reformation, etc.), Feuer- ' Cf. especially the chief prineiples in the "Re\nsion" (I, p. 147) con- cerningr the importance of the criminal law. * "Revision", II, pp. 131 ct .scr/. 5 Herein F'euerbach is gfoverned by the conception of criminal law at that time prevailing, viz. that the only purpose of law was the protection of external freedom. 431 § 88] HISTORY OF THE THEORIES OF CRIMINAL LAW [Part II bach invoked that undeniable truth which alone corresponds to the dignity of criminal law, yet properly restricts it, viz. that crimi- nal law has its efl'ect not so much through its execution in the individual case but rather by applying itself to the generality of affairs, and by establishing certain fundamental principles of con- duct as inviolable," — and for these reasons, proceeding dispassion- ately and in accordance with broad considerations. No restric- tions, on the other hand, are recognized by the theories of deterrence by punishment, or of security against the individual offender, or even of that of reformation. Criticism of his Theory. — Feuerbach was far removed from that which the great majority usually conceive as the theory of deterrence, and especially from that brutal theory of punishment which, in moments of social unrest or danger, would inflict a se- verer punishment upon a man because others as well as himself have committed crime. His gradation of punishment is primarily based upon the importance of the violated right, and only gives second- ary regard to the impression it will make upon the minds of the public at large. Therefore Feuerbach's meaning is completely misunderstood if we assert (as Hepp does, II, pp. 260 et seq.) that according to Feuerbach the statute law is superfluous. As a pure matter of logic it is certainly correct that according to Feuer- bach the legal basis of punishment on the part of the State lies in the fact that the State regards the punishment "as necessary, and that accordingly the propriety of the threat of punishment rests upon the propriety of the fulfilment of the threat (but not the latter upon the former). It is also true that Feuerbach himself later had to abandon the view of the acquiescence of the criminal in the punishment which he had earlier adopted.^ In this latter * ^ There is absolutely no merit in the criticism often made of Feuerbaeh that the threat of the statute (more properly of the criminal law) has no effect upon the criminal, since the criminal is governed by his hope of evading the punishment and thus of the statute being ineffective. (Cf. e.g. Ziegler, in "Gerichtssaal", 1862, p. 15.) He who actually commits a crime may indeed cherish this hope. But how many beside him would not commit the crime, if they were assured of immunity from punish- ment? Feuerbaeh has often stated that he did not regard the criminal law as the only means to prevent crime, although he regarded it as an indispensable means. ^ CJ. "Ueber die Strafe als Sieherungsmittel", pp. 92 et seq.: "Lehr- buch", § 17, II, § 16, II, and as to this Hepp, II, p. 222. * This especially weak point was capably controverted by Grolmanii, "Begründung", pp. 10 et seq. He who steals bread, does not enter into a contract to purchase it. A private individual cannot assume that he who enters his room will pay him ten thaler if he fixes this as the condition of entry. 432 Chapter IV] THEORIES FROM BECCARIA TO FEUERBACH [§ 88 alteration of Feuerbach's theory, it is apparent that, abandoning a justification of punishment from the standpoint of the criminal, it used the criminal chiefly as a means for other ends, — as did the theory of deterrence by the infliction of punishment, which Feuerbach had opposed, and the " special prevention " theory. It is also clear that it did not escape many of the vagaries (^f these last-mentioned theories, and that it dealt with the criminal, not according to his individuality but according to a certain average of humanity — since the law does not know anything about the in- dividuals. If Feuerbach had arrived at a full comprehension of this, he would necessarily have discovered that there was not as much op- position between moral judgment and the criminal judgment of the State as he believed. (Nevertheless he was obliged to confess that everywhere in the criminal law,^ moral conceptions and judg- ments " intrude.") He would also have come to realize that these two kinds of judgments differ merely in this, that the judgment of the criminal judge tests the morality of the act only to a point that is certain and easy to establish, and also that criminal law presents in broad and general lines the morality of the community. In that case he would not have been led, as he was, to separate the law from the popular conscience, nor to justify punishment merely upon the ground of an alleged utility in threatening punishment or upon the dangerous character of the act. Nor would he have l)een led to base criminal law exclusively upon the violation of rights in the subjective sense. He would not have needed ^^ to resort to his discredited presumption of " dolus " (malicious intention), in order to avoid the result that a person ignorant of the criminal statute and its penalties or mistaken in thinking his act did not come under the statute, could not be punished on account of " dolus " (malicious intention) — since deterrence is possible only where there is knowledge of the penalties. And, finally, he would not have been obliged to regard man as committing crime only for baser motives, nor the legislator as operating solely upon these motives. The short work of Thibaut : " Beiträge zur Kritik der Feuer- bachischen Theorie über die Grundbegriti'e des peinlichen Rechts "'' ' "Revision", I, p. 161. ■o Offenses against morality which do not at the same time violate a subjective right, are, according to Feuerbach, only offenses subjt'ct to police regulation. Cf. "Kritik des Kleinschrod'scheu Entwurfs", 1, p. U). " 1802. 433 § SS] HISTORY OF THE THEORIES OF CRIMINAL LAW [Pakt II (which in many respects is excellent, although it seeks to establish deterrence as the correct theory in criminal law) '- lays down the following sound principle : No criminal legislation is more success- ful in attaining its ultimate purpose than that which takes as its criterion the ordinary conceptions of moral retribution, while the principle of deterrence, in its consequences (since that evil must always be threatened which is fitted to deter, and thus as far as possible to overcome the impulse to crime) necessarily leads con- stantly to more terrif^'ing punishments and therewith to impover- ishment and animosity.^^ Thibaut herewith openly repudiated the logical results of the principle of deterrence ; Feuerbacli had al- ready unconsciously done so, since he desired primarily to appraise punishability in accordance with the importance of the jeopardized or injured right. ^'* The importance of the injured or jeopardized right can be fixed only in accordance with the moral valuation of th^ public conscience. Deterrence on the contrary is obliged to take into consideration primarily the greatness of the impulse to the commission of the crime, and this is often very strong in the minor offenses. The practical weakness of Feuerbach's theory lies in this, viz. that it leads the legislator at certain times and under certain circumstances to confuse the former standard with the latter, and also convinces him that if only the punishment has been threat- ened by the statute, he himself can not be blamed for its injustice. Feuerbach's theory also leads to a frequent confusion of legislation and right. 12 P. 58. " P. 98 ; pp. 82 et seq. ^* This had already been correctly brought out by Schulze, "Leitfaden der Entwicklung der philosophischen Principien des bürgerlichen und peinlichen Rechts" (1813), p. 326. 434 Chapter V CRIMINAL THEORIES FROM BEXTHAM TO HERBART § 89. Bentham. Romagnosi's Theory of Necessary Self- Defense. Oersted. § 90. Bauer. The Admonition Theory. § 91. The Reaction against Feuer- bach's Theorj^ of Deter- rence. Schulze. Steltzer. § 92. Theory of Reformation founded upon Determin- ism. Groos. Ivrause. Ahrens. Röder. § 93. The Restitution or Com- pensation Theory. Hepp. § 94. Changes in the Al)solute Principle of Criminal Law. Zachariä. Henke. § 95. Combination of the Absolute and Relative Purposes. Rossi. § 96. Herbart's Retribution Theory of .(Esthetic Judgment. Geyer. § 89. Bentham. — An interesting parallel and, in many re.spects, a valuable completion of Feuerbach'.s theory i.s to be found in the theory of the famous Englishman, Jeremy Bentham.^ Bentham completely abandons any attempt to justify criminal law from the viewpoint of the criminal. He simply declares it as an axiom that crimes must be prevented by punishments ; and that since the law is founded simply upon general utility, it seems sufficient to de- scribe the punishment as advantageous for the maintenance of the general legal system, this being obvious. Therefore the only en- deavor of the legislator should be, on one hand not to punish acts whose punishment would not serve a useful purpo.se, or would in fact be harmful, and also not to apply tho.se kinds of punishment ^ As to Bentham, cf. especially Mohl, "Geschichte und Literatur der Staatswissenschaften", Vol. 3 (1858), pp. 595 et seq. Concerning his theories of punishment, ef. Hepp, " Gerechtigkeits- und Nutzungstheorien ", p. 50. The matters considered in the text can be found, apart from the original editions of Bentham's collected wTitings, n>aen- dently of the statute law.^ Without any special predilection for dealing with definite varieties of punishment, he exhibits as the chief purpose of punishment,^ not the evil which may be inflicted upon the criminal, but rather the express designation of the crime as an act i)rejudicial to the progress of humanity.^ But instead of proceeding from this basis to determine how the morality exer- cised generally by the State, and which must coerce the individual, is to be distinguished from the morality of the individual, and thus founding the specific character of law as opposed to morals in the ordinary sense, Schulze suddenly substitutes the principle of neces- sary defense (or protection of the legal system). The criminal is punished because punishment is a means to restrain both him and others from doing further damage. This opened the door to criti- cal objections. That punishment is not necessary defense in the ordinary sense is, as already remarked, easy to demonstrate. For this reason Schulze's other and more thoroughgoing ideas were overlooked, and consequently his book actually had little effect. Steltzer. — In the meantime, in Steltzer's " Kritik " of Freiherr i\ Egger's draft of a penal code for the Grandduchies of Schleswig and Holstein,^ the Fichte-Grolmann doctrine is found, with a fun- damental change, viz. punishment was to be regarded as a means of reformation. According to Steltzer, punishment did away with the 1 Pp. 378 et seq. 2 P. 52 ; p. 353 note. ' Schulze also gives an excellent criticism of the theories of deterrence, reformation, and retribution. M811, 2 Parts. 441 § 92} HISTORY OF THE THEORIES OF CRIMINAL LAW [Part II otherwise existing necessity of exclii(lin<^ tlie criminal from tlic Icj^al community ; since by reformation of the offender it secured im- munity from him for the future.'' But a presumption of reforma- tion should be determinative in the fixinom the remark marie by Groos that, under some circumstances, even capital punishment is justifiable, it is evident that a different method of estimating the efficacy of the means of educating the offender might lead to harsh penalties and the frequent application of the death penalty. But Groos had never made an attempt to define the limits of crimi- nal actions and to demonstrate the possibility of a sufficientlj'' definite criminal law based upon his theory. Here his theory was subject to all the charges which Feuerbach had justly made against the theory of Grolmann.^ Krause. — Krause,^ who in other respects was not an adherent of determinism, regarded punishment as a means of education {i.e. not in its nature and purpose as an evil). He who was undergoing punishment, was under guardianship like the immature. The State has the right to interest itself in the development of the im- mature, in the reformation of the morally depraved will. Accord- ing to Krause,^ there can be no such thing as a legal authority to inflict evil, as such, and thereby cause suffering. These theories have their deeper foundation, on the one hand, in that absolute value placed upon the individual by the philosophy of Krause, which forbids an employment of the individual solely as an instru- 5 Cf. also Jarcke's polemic in Hitzig's "Zeitschrift für die Criminal- rechtspflege in den preuss. Staaten" (1829, Vols. 21-23). ^ It will not be necessary to take up carefully those erroneous doctrines which are indispensable as a basis for exact observation in the sense of natural science, — doctrines which regard crime as a consequence of a mental prefiguration of the criminal (George Combe). Concerning this, and especially in opposition to the results of the mental doctrines of Gall, cf. Mittermaier, in "Neues Archiv des Criminalreehts " (1820), pp. 412 el seq.; Hepp, II, pp. 646 et seq.; Franck, "Philosophie du droit penal", pp. 64 et seq. A new attempt at a founding of criminal law upon the foundations laid by Groos is that of Karel J. Rohan, "Ein Versuch über die Entstehung und Strafbarkeit der menschlichen Handlungen" (Wien, 1881). But here determinism is made use of in the sense of Feuerbaeh's "theory of deterrence." [See § 102o, post, for this group of theories. — Ed.] '' Cf. especially Karl Christ. Friedr. Krause, "Das System der Rechts- philosophie", ed. Rödcr (1874). 8 Pp. 457, 532. 444 Chapter V] THEORIES FROM BENTHAM TO HERBART [§ 92 ment of the civil community ; and, on the other hand, in that solidarity of interests of members of the community, which Krause so frequently emphasizes, and in accordance with which the com- munity must interest itself in the training and culture of its individ- ual members. Ahrens. — Ahrens ^ gives to this theory a coloring which touches even its absolute foundation ; for he regards the purpose of the punishment as the restoration of the violated legal order of things. But he found this restoration of the legal order only in the per- sonality of the criminal and not in an effect upon others. Con- sequently, rejecting all absolute theories (which he regards as amounting more or less to retribution), he designates his theory as the theory of reformation, and effectively defends himself against numerous obvious objections. The first of these objections consists in the criticism made against theories of reformation in general, viz. that they confuse the standpoints of legality and morality. Attention to reforma- tion involves solely the latter, — reformation has no place in a legal decision. In opposition to this, Ahrens justly observes that a decision as to guilt presupposes a certain moral consideration. The second objection is that, under the theory of reformation, crimes committed in a rebellion must remain unpunished, since it is certain that their author will never again commit them. To this Ahrens in a sense answers with justice : " Where a man's proper power of will has shown itself so weak that, through emo- tion or passion, it gives way to a crime, e.g. homicide, can certaint\- exist that he will not again, through his passions or emotions, yield to further or similar crimes? This must be answered in the negative, and for his reformation a full period of time will cer- tainly be necessary." However, the theory of reformation can never defend itself against the objection that the execution of penalties, even when done in the most humane and advanced manner, must necessarily differ specifically from the training of the immature. The teacher must deal with the pupil solely with the viewpoint of advancing him. If this were done by the State in respect to the criminal, then, for those classes among which crime especially arises, the punishment would be something to be welcomed. The State would improve the individual, but would encourage the masses ' Cf. "Naturrecht oder Rechtsphilosophie" (Gthcd., 1871), II, pp. 44S et seq. 445 §92] HISTORY OF THE THEORIES OF CRIMINAL LAW [I'aht II to the commission of crime. This is impossible to contemplate. Punishment can never be completely relieved of its character of disgrace, which (however leniently yet positively) must manifest itself in the treatment of persons given a significant sentence of imprisonment. There is no substantial merit in the reply that we are yet far enough removed from such an enticing arrangement of our penal institutions, and that there is for financial reasons little to be feared in this respect. According to the theory of reforma- tion, such hindrances to a better treatment of convicts must, as far as possible, be eliminated ; even these efforts, for that matter, if carried through regardlessly, would, little by little, remove from popular usage the idea of guilt, and substitute the notion of " de- fective training " for which the offender is not to blame. If the theory of reformation is carried to its logical results, as, in fact, was done by Ahrens, this elimination of the conception of guilt involves further that the decision of the judge must al- most entirely lose its significance ; for the duration of the punish- ment (and even its kind) would be fixed not by the statute and the judge, but rather by the observation and discretion of the prison officials. Such a system of punishment would undoubtedly result in hypocrisy and arbitrary action, and would necessarily seem odious to a people who still cherished freedom in its ideal sense. It would deprive the people of the satisfaction of seeing a base, contempt- ible act sufficiently branded as such by the State. The consistent theory of reformation is merely the theory of advanced despotism ; can any one deny that such a theory can be excessively cruel? Moreover, it is not apparent why punishment should be limited essentially to wrongs. Perhaps, from the moral standpoint, everyone is susceptible of improvement, and since punishment is no evil but rather a benefit, then better punish too much than too little. Röder. — Röder ^'^ sought to give greater definiteness to the theory of reformation by his statement that the purpose of punish- ment lies in the elimination of the actually proven immoral will ; wherefore, everyone may be placed under supervision {i.e. criminal supervision) exactly to the extent that he has manifested a will ^° Cf. Röder, "Zur Rechtsbegi-ündung der Besserungsstrafe" (1846); "Grundzüge des Natturreeht" (2d ed. 1860-1863), II. pp. 163 et seq.; "Der Strafvollzug im Geiste des Rechtes" (1863); "Besserungsstrafe und Besserungsanstalten als Reehtsf orderung" (1864); "Die herr- sehenden Grundlehren", pp. 97 et seq.: "Kritische Vierteljahrssehrift für Gesetzgebung und Rechtswissenschaft" (1869), pp. 375 et seq. 446 Chapter V] THEORIES FROM BEXTIIAM TO HERBART [§ 93 inclined to wrongdoing. ^^ But there is no identity between the extent of the wrong and the duration of the unlawful or immoral will, and they in no way run parallel. A reformatory punishment, to be consistent, can and must be pursued only so far as an imj)rove- ment (presumptive at least) is obtained ; it can never, at least only occasionally, be generally and certainly fixed by statute or judicial decree. The above-stated principle is, therefore, only a sophistry with which Röder (who is really of value in the problem of prison systems) deceived himself; the possibility of shortening a sentence that has been pronounced because of the subsequent improvement of the convict can never have more than a relative justification. While Röder, in order to maintain the character of actual punish- ment for his educative penalties, speaks of the " untauglit simple- tons " ^" who are to be thus educated, he thus conceals the further obnoxious logic of the theory of reformation, viz. that the desir- able things in life must be conferred upon the delinquents, if we can manage to raise the needed funds, whenever these good things would help to reform the said delinquents, and although the great mass of honest people in the world have to get along without them. The theory of reformation ^^ can never free itself from the reproach of raising an exclusive cult of the individual. ^^ § 93. The " Restitution " or " Compensation " Theory. — The so-called " restitution theory " or " compensation theory " which has been worked out in an interesting manner especially by Welcker,^ is in reality merely a collection of the various relative theories, especially of the theories of reformation and of deter- rence. However, the theory of deterrence appears in such a mild shape and form that it is similar to those theories which would merely designate, by means of punishment, certain limits which a man's course of action must not violate. In order to justify the " Cf. especially "Grundh^hron", p. 99. '= P. 107. 13 Carrara, "Programma del diritto criminale", II, 619 very aptly states that the uncertain duration of tlie punishment resulting from the principle of reformation completely destroys its moral effect "forza morale." '^ Incidentally the reformatory punishment can also be pushed in the contrary direction, if one argues that the convict must not be set free nniil he has reformed and there is no danger from him for human society. The legal system in the State does not need to secure absolute safety from violations of law and injuries, and it is not able to do so. That dangerous men must be set free is no reproach against the other criminal theories. '"Die letzen Gründe von Recht, Staat und Strafe" (ISi;^). Cf. also Welcker, "Die Universal- und die juristisch-politische Encydopädie und Methodologie" (1829), pp. 573 cl seq. The citations refer to the former work. 447 §03] HISTORY OF THE THEORIES OF CRIMINAL LAW [Pakt II punishment from the standpoint of the criminal, he joins to this tiieory the contract theory of Fichte, althou One may merely say "of the criminal" and not "of the crime." In opposition to the statement of Welcker are well founded the objections of Hepp, II, p. 766, that the infamy and disgrace of the criminal are little in harmony with the idea of his reformation. 450 Chapter V] THEORIES FROM bextham to herbart [§ 94 is just as difficult as the foundation of a punishment. For, in concrete cases, the rendering of indemnification can actually ■constitute a very mortifying punishment, and it is very possible that in such cases one law is satisfied with the indemnity, while another inflicts punishment. Here, at least, the chief considera- tions for excluding punishment do not govern. Hepp. — Hepp's " Theory of Civil Justice " ^ (" Theorie der bürgerlichen Gerechtigkeit ") is, in principle, only a repetition of Welcker's theory under another name. The offender has to re- pair the moral damage arising from certain actions. But it is not clear how it comes about that this compensation consists of the evil inflicted as punishment, which must be undergone by the of- fender. It must therefore be that the strength of the evil example (which in any case is not to be denied,^ and which in reality rests upon the defective moral sense of those who are, as it were, led astray) is regarded as a reason for this. This influence of the ex- ample is indeed broken by evil undergone by the offender as a punishment. In individual matters, many correct statements of Hepp deserve appreciation, particularly those concerning the dis- tinction of a wrong criminally punishable from a mere breach of morality and a tort. § 94. Changes in the Absolute Principle of Criminal Law. C. S. Zacharia. — We may now revert to a consideration of the evolution of the absolute principle for the basis of punishment. The mistaken attempt of C. S. Zacharia,^ to give to the abso- lute theory of retribution an interpretation more in harmony with the sentiment of his time, deserves little attention. He regards the crime as an encroachment upon the freedom of others, and ac- cordingly would have the retribution consist of punishment by deprivation of freedom.- This deduction rests upon a simple confusion of conceptions : in the crime, the encroachment upon freedom is conceived as a wrong ; in the punishment, freedom is regarded as the opposite of imprisonment. With such manifest faults there is no profit in taking up the unsatisfactory and arti- ficial provisions relating to the amount of punishment and, in part, to the kind of punishment, which Zacharia believed must be de- duced from this fallacy. 8 Hew, II, PP- 770-852. « Cf. p. 779. 1 Carl Solomon Zacharia, "Anfangsgründe des philosophischen Crini- inalreehts" (1805); "Strafgesetzbuchsentwurf" (182(5). Cf. especially "Anfangsgründe", § 42. - But from the law of necessity of the State other punishments are allowed. 451 § 95] HISTORY OF THE THEORIES OF CRIMINAL LAW [Part II Henke. — The modification given to the theory of retribution by Ilenke,^ according to which it appears practically as a theory of reformation, is more attractive. Punishment is to him the nec- essary reaction against every attempt of the individual to tear himself away from the unity of the community and to a\oid the law whereby the community orders its life. There exists no further proof of the necessity of this reaction ; it proclaims itself in con- vincing tones to every one in whom there is developed the in- stincts of humanity. The punishment is based upon a moral impulse, and the criminal must sooner or later bring it upon him- self. It represents the cure of the State, which again attains its health through the civil or physical death of its diseased member {i.e. the criminal), or through his undergoing some other punish- ment. It also frees the criminal from internal discord, since it improves him by a retribution which corresponds to the inner guilt and is in its effects not entirely external. This reminds us. of Plato. Henke is also in accord with Plato's course of ideas in requiring the punishment to bring about an actual moral improve- ment of the criminal. And he abandons (justly) the idea of a mere so-called political reformation as an empty abstraction. But Henke was no more able than Plato to bring into actual harmony the retribution, in the sense of a restoration of the " majesty of the State " (the law), and the reformation of the criminal. It is an undeniable truth that the evil is eliminated in the most com- plete sense if the offender, because of a change of heart, recognizes the supremacy of the good (and of law). But, while the general ideas of retribution and reformation seem to dwell in such peace and harmony, their logical results are in violent discord. Punish- ment meted out up to the time of reformation is not retribution if even a severe offense is quickly followed by the reformation of the criminal, and it is more than retribution if the stubbornness of the criminal, even in a minor transgression, causes the reformation to be long delayed. § 95. Combination of the Absolute and Relative Purposes. — More appro^"aI has been given to the combinations of the theory of 3 H. W. E. Henke, "Ueber den Streit der Strafreehtstheorien " (1811) ; "Lehrbuch" (1815); "Handbuch des Criminabechts und der Criminal- politik", I (1823), especially pp. 9, 10, 146 et seq. In his "Geschichte des peinliehen Rechts in Deutschland". II, pp. 362 et seq.. Henke had originally declared himself against every absolute theory, and in the work "Ueber den gegenwärtigen Zustand der CriminaLrechtswissenschaft in Deutschland" (1810), he substantially embraced the theory of Fichte (pp. 15 et seq.). 452 Chapter V] THEORIES FROM BENTHAM TO HERBART [§ 95 retribution with a theory that is relative. This combination takes place in the view that punishment is given its legal basis in nec- essary retribution ; while the consequent justification for penalties may be used only in so far as it serves to attain rational future pur- poses, or, if the attainment of the single purpose is not allowed to prevail exclusively, only in so far as it is necessary for the main- tenance of the legal system. This coalition of the theory of retri- bution with a certain indefinite theory of necessary defense has found favor, especially in France and among those commentators who are strongly influenced by the French spirit. It has also been, in truth, equally the predominating influence in legislative commissions and legislative assemblies. The judicial practice of Germany, however, dominated by trained jurists, has almost universally condemned such a coalition. There is good reason for both positions. While the form in which it is advanced is theoretically untenable, this coalition in practice furnishes the most correct results ; results which actually harmonize with those of a theory which professes to find its practical, direct, and evi- dent conclusions only as the reverse side of a principle absolute in itself. Rossi. — The first and ablest of the supporters of this coalition was Rossi. ^ He regarded the retribution of evil with evil as an un- qualified and firmly established mandate of justice.- But since the duty of the civil community consisted merely in maintaining the legal system, it was not incumbent upon it to give complete and absolute effect to this mandate. It gave effect to it only in so far as seemed necessary for the maintenance of the legal system. Thus the consideration of utility restricted the exercise of justice, but it was not its basis.^ And so, quite correctly, the propriety or impropriety of the punishment for acts contrary to morality was discussed with a view to the fact that while human justice claims the right to punish such acts, it has to reckon with the possibility of error and the diflRculty of certainty."* 1 Rossi, "Traite du droit penal" (Paris et Geneve, 1829), T, pp. 125-289. 2 This statement is axiomatic : "eile est. parce qu'elle est", p. 289. 3 "Le but de la justice humaine est exterieur et borne. C'est encore la justice absolue, mais la justice absolue applique seulenient aux viola- tions de nos devoirs envers les tiers, en tant que ces violations troublent d'une maniere sensible I'ordre social." p. 290: "La repression des delits par la peine n'est done legitime qu'a la condition que la peine s'ap- pliquera aux eoupables, et aux coupables seulement . . . Des qu'on depasse d'un atome le mal merite, il n'y a plus justice : on retombe dans le Systeme de I'interet." * Cf. 1, pp. 297, 303. 453 § Of)] IIISTOUV OF THE THEORIES OF CRIMINAL LAW [PAKT II Haus/' Ortolan/' and Gabba ' merely adopted tins theory in diU'erent language. The same holds true of Von Preuschen,* Mohl/'Mittermaier/" and Henrici.'^ But these writers made the theory less clear, since they ])laced primary stress upon the utility of the punishment and secondary stress upon justice, which they desire to be the preliminary condition of punishment. IMittermaier had perhaps specially in view the numerous punishments for of- fenses against the police measures and other coercive penalties, which are practically indispensable but which are not readily justi- fiable from the standpoint of absolute and eternal justice ; hence he shows traces of the thought that, under some circumstances, a punishment can be justified b}' the fact of ha\'ing been threatened. Henrici ^^ assumes at the outset an independent position for the principle of the right of punishment, since he begins with the relative theory of defense or maintenance of the legal order, and as opposed to this principle he regards absolute justice as a restricting principle. As a matter of fact, it all amounts to one and the same thing, — if one goes only so far as the two principles are in harmony^ one may consider an individual question either by principle A or by principle B. In the case of Rossi, as will be conceded, there is the danger of transferring punishment primarily and perhaps too much to the realm of pure morality ; in the case of Mittermaier and Henrici, there is especially the danger that punishment as a measure of ex- pediency will be extended to many things which in fact do not deserve punishment, and that it will be difficult for justice to 5 "Principes generaux du droit penal Beige" (1869), pp. 26 et seq.: p. 29 : "La peine est un mal qui est rendu pour un mal; eile retombe sur le eoupable parce qu'il a enfreint la loi, et parce que cette infraction merite la souffrance qu'on lui fait eprouver. Le pouvoir social a-t-il le droit de punir? Pour qu'il ait ce droit, il faut que la peine soit un moyen propre ä realiser le but qui lui est assigne. II faut ensuite qu'elle soit un moyen de protection necessaire." 8 Ortolan, "Elements du droit penal", I, pp. 176 et seq. According- to page 187, society says to the one whom it punishes and who raises a, question concerning the evil inflicted upon him: "Tu le merites", and as to the further question how this concerns the society, it answers : "It has to do with my maintenance." ' "II pro ed il eontro nella questione della pena di morte" (1866), p. 52. * "Versuch über die Begründung des Strafrechts" (1835), especially pp. 37 et seq. ^ "lieber den Zweck der Strafe" (1837), especially pp. 36 et seq. "" "Neues Archiv des Criminalrechts " (1836), pp. 403 et seq. Mitter- maier in the 14th edition of Feuerbach's "Lehrbuch" prepared by him, § 20 6. " "Ueber die Unzulänglichkeit eines einfachen Straf rechtsprincips " (1839). 12 P. 78. 454 Chapter V] THEORIES FROM BENTHAM TO HERBART [§96 cause the legislator to desist from using such measures of expedi- ency. But there is little importance in this distinction. However, the matter is completely confused by Henrici's observation that justice (i.e. absolute justice) '^ must also guard the legislator against doing too little and against giving way to unseasonable pity in respect to crimes deserving the death penalty. Here, according to Henrici's conception, absolute justice is also advanced simply as a constitutive principle, without being limited by ideals of utility and humanity. If this is permissible, then the choice be- tween the punishments of absolute justice (sentiment) and punish- ments based on considerations of utility or relative necessity be- comes merely a matter of sentiment. This criticism is manifestly ai)plicable to the views of von Wieck,'^ who substitutes for the general purpose of maintenance of the legal system, the special purposes of deterrence and reformation, and, indeed, would give attention to these onl\' in so far as they do not do injury to the chief purpose of the punishment : retribution through the infliction of suffering. It should be noticed that von Wieck, who uniformly adopts a positive Christian attitude, seems to have a sense of the irreconcilability of the infliction of suffering and Christian ethics. The uncertain assertion that the State in its existing condition, where evil is not overdone, may exercise mercy and charity only in so far as it may be done without material prejudice to punishment, confirms rather than abolishes this contradiction. § 96. Herbart's Retribution Theory of Esthetic Judgment. — Herbart ^ sought to give to the absolute theory of retrilnition a modification which was really new although certainly not fortunate. In many respects he reminds one of Plato and Leibnitz. Retri- bution is contemplated and demanded as an fcsthetic judgment. As law is only the means to eliminate the aesthetically offensive conflict of numerous individual wills, so punishment rests on the axiom : an act for which there has been no retribution is offensive. In Plato the punishment, merely as an ideal, assists in completing the harmony of the universe, and therefore, apart from a few ex- treme cases, is also regarded as a benefit for the party punished, who thereby is reinstated in the universal harmony, thus becoming " P. 85. " "Ueber Strafe und Besserung" (1853). 1 Cf. his "Werke", ed. by Ilmicnslcin, 8, p. 318, 9, pp. 387 ct seq. Cf. also Geyer, "Geschichte und System der Rechtsphilosophie" (1863), pp. 127 et seq. 455 §96] HISTORY OF THE THEORIES OF CRIMINAL LAW [Part II better. But in the aesthetic judgment of Ilerlmrt, we find our- selves immediately upon the real and practical ground of the pres- ent criminal law, and hence it is especially noteworthy that Ilerhart has but little knowledge or interest in the reformation of the criminal.^ And Herbart's idea of punishment (which may quite properly include death and life-long imprisonment) is opposed, even from his aesthetic standpoint, to that lofty idea which does not desire the death of the sinner, but rather the suppression of evil by means of good. It is at least a " petitio principii " to maintain that the former is aesthetically more agreeable than the latter. Herbart was himself sensible of this. He concedes that the ret- ribution of evil with an evil merely for its own sake falls within the sphere of malevolence (" Uebelwollen ") and therefore punish- ment requires a motive.^ Such motive is furnished it by the ethical ideas of perfection, benevolence, and justice, and especially the ideas of the improvement, advancement, and security of the entire people. Thus ultimately Herbart's theory becomes merely a reproduction, only under another name, of Rossi's " coalition theory " ; i. e. as against the criminal, punishment is based upon the idea of retribution, but the community may make use of this retribution only in so far as its purposes require it, or (speaking rather in the sense of Herbart) in so far as its purposes make it seem desirable. For a strong legal system with as free development of the individual as possible was not the object of Herbart's State. An administrative system, a system of rewards and a system of mutual benevolence, could necessarily make a far more extensi\'e coercion of the individual than the legal system would require. " It is possible to exercise discipline wherever it advances welfare, and wherever the general recognition that the punishment produces no strife can be presumed " ; and " the legislator may discipline where the judge may not." ^ In other words, where general senti- ment would not be injured by the punishment, there may punish- ment be inflicted, and at all events, in this case where the positive law so desires. Ultimately this leads to pure positivism. It is in accordance with the aesthetic feeling that the laws be obeyed, and therefore, in ^ "Aphorismen zur praktischen Philosophie", "Werke", 9. p. 418. "Legal reformation of the party punished ? No! Rather, since unfor- tunately this is often impossible : legal reformation of the communitj-." » "Praktische Philosophie" (I), "Werke", 8, pp. 44, 45. ^ "Werke", 8, p. 87. 456 Chapter V] THEORIES FROM BENTHA-M TO HERBART [§ 96 accordance with them, if they so desire, puiiisliment be inflicted.'^ This is the standpoint of the most absohite modern liberalism, which is no longer able to distinguish justice and law. There is no doubt that Herbart was far removed from this adoration of the law as such. A law may have just come into being, upon the vote of a bare majority, but afterwards we tend to regard it as an idol secure from criticism. But the outcome of the theory very clearly revealed the impracticability of the aesthetic judgment as a means of reaching sure ground for criminal law. Essentially correspond- ing with the categorical imperative, Herbart's so-called aesthetic judgment exceeds it in indefiniteness. According to the cate- gorical imperative, punishment can be inflicted only if our con- science unconditionally demands it ; according to the aesthetic judgment, pimishment may be inflicted if our conscience is not expressly opposed to it. It is impossible here to take up the aphorisms concerning crimi- nal law ^ which are more or less closely connected with Herbart's fundamental conceptions. But though they include some well thought out statements, as a whole, they demonstrate that the philosopher knew little about criminal law, the subject upon which he was philosophizing." Geyer. — Herbart's philosophy of criminal law has found few followers. It is best and most skillfully defended by Geyer. But even this defense, remarkable as it is for its many excellent and apt statements,^ shows that an effective defense of Herbart's prin- ciple is not possible for any one who does not possess a complete knowledge of the subject. In Geyer, the maxim : ^ " The act for which no retribution is made is offensive ", again changed over completely to the idea of simple retribution. But this retribution, although it is fundamentally contrary to its nature, according to Geyer admits of the limitation: "The giving of pain is oft'en- ^ P. 85: "To sum up, the foregoing gives rise to a sharp distinction between the possibility of being punished and the possibilily of punishing. That any one should be punished is only possible because he has previously done something from which the punishment recoils upon him. . . . Whether any one can punish depends upon a new condition, whether or not there is present a motive, that the punishment be merely a means and not an end." « "Werke", 8, pp. 415-418. ^ Thus e.g. the erroneous statements concerning "dolus" and "culpa." * Cf. especially the article: "Ueber den Begriff des Verbrechens" in //rtimerrs "Oesterreieh. Vierteljalirsschrift für Rechts- und Staatswissen- schaft" (Vol. 9, 1862), pp. 215-253, and Geyer in Von IJoltzcndorJf's "Reehtsencyclopädie", Vol. I. ^ Cf. the article above cited, p. 219. 457 § !)(>] HISTORY OF THE THEORIES OF CRIMINAL LAW [Paut II sive."^" Therefore the State must punish, as sueh, all inten- tional giving of pain, and even, as Geyer later sets forth, every giving of pain caused by negligence. However, the aesthetic judgment is a categorical imperative which permits of treatment. Consequently the maxim "^Minima non curat praetor" takes root ; a too extensive criminal power results in numerous evil condi- tions ; accordingly the spirit of the people and the force of existing circumstances must be recognized. ^^ Under some circumstances the obligation to indemnify can arise in the place of punishment.^^ Since indemnification under some circumstances is also required of those to whom there is attached no guilt, this is indeed a complete rejection of the idea of retribution, of {esthetic judg- ment. It is impossible for it to be otherwise. As soon as one comes to the consideration of individual details, it is only by a rejection of the ideas of retribution that Kant's absurdities may be avoided. According to Herbart's and Geyer's conception, the evil act is a discord. Would one be less sensitive to one discord, by having a second one result from it ? Punishment, however, should furnish evil or pain to the criminal. If one schoolboy whom another has struck cries, this cry does not become a pleasant sound because the second boy whom the schoolmaster has chastised for his offense also cries. Of course, for one who takes an interest in pedagogical discipline, it may be a pleasant sensation to know that discipline was applied in this case. This is exactly the case with punishment. If we conceive punishment chiefly as an infliction of pain, as an evil, then this evil can lose its repulsive character only if it becomes a means of attaining some benefit. And if it must be retribution, would it not be the best retribution, and also one to be recognized as such by the State, if the criminal in the commission of the act brought down upon himself a mortifying pain or damage, without obtaining an advantage ^^ at all ? Geyer ^^ meets this objection 1» Cf. pp. 225 et seq., especially p. 228. " P. 231. 12 Binding's arguments ("Die Normen und ihre Uebertretung", I, pp. 207 et seq.) concerning the diametrical opposition of indemnifieation and punishment are properly opposed to a theory which would found punishment upon retribution or unconditional «sthetie approval. But it is different if the punishment is not founded upon retribution, or if the matter is not viewed from the standpoint of the positive law but rather historically and politically. 1' Common opinion will always regard this as retribution in its eminent sense. » P. 223. 458 Chapter Vj THEORIES FROM BENTHAM TO HERBART [§ 96 with the statement that the evil must come about as " retribution." But is it not in accord with the essential idea of retribution, that it is more perfect the less it requires artificial preparation? Every well-constructed tragedy gives evidence of the correctness of this refutation of Geyer. Careful consideration certainly shows that these conceptions of retribution and punishment are not satisfac- tory. 459 Chapter VI CRIMINAL THEORIES IN GERMANY FROM HEGEL TO BINDING § 97. Theory of the Negation of Wrong. Hegel. § 98. Modern Theological Ten- dencies. Stahl. Schleier- macher. Daub. § 99. Later Developments of Hegel's Theory. Tren- delenburg. Abegg. Heff- ter. Köstlin. Merkel. Hälschner. Berner. Kitz. § 100. Combination of the The- ories of Hegel and Fichte. Heinze. § lOL Von Kirchmann. Schopen- hauer. Diihring. E. von Hartmann. Von Liszt. § 102. Binding's Theory of the Effect of Disobedience to a Rule. Laistner. § 97. Theory of the Negation of Wrong. Hegel. — In contrast to the foregoing theories, the theory of Hegel reveals a distinct step in advance.^ To Hegel, punishment is simply a negation of wrong, and wrong is the negation of right. Of course, wrong as opposed to right (i.e. as opposed to the general system of right, which abstractly regarded, cannot be harmed) is in itself a nullity ; but punishment has to bring about this non-reality of wrong in the individual will of the criminal and also to restore therein the right. This gives rise to a distinction of reactions corresponding to the various kinds of wrong, — simple wrong {i.e. " unbefangene LTnrecht "), fraud and crime. The first of these {i.e. " unbe- fangene Unrecht ") is not that which exists in the will of those who oppose the right, — it refers rather to cases in which the right, in abstract, is desired, but in the concrete case is confused with the wrong. This is the case in civil wrongs. In fraud (" Betrug ") the appearance of right is maintained, but under this appearance the wrong is desired. In crime, the right is both objectively and subjectively repudiated by the offender. Here it is also neces- sary to exhibit externally the non-reality of the wrong by means 1 "Grundlinien der Philosophie des Rechts", ed. by Gans (3d ed., 1854), US2etseq. 460 Chapter VI] CRIMINAL THEORIES IN GERMANY [§ 97 of punishment. Therefore punishment from its very nature can not be termed an evil. As Hegel expressly states, the infliction of one evil merely because another exists is irrational. " The undoing of crime is retaliation to the extent that it is conceived as an injury, and, conformably to its being, crime has a definite quantitative and qualitative extent, and the same thing also holds true of its negation. But this contemplated identity is not parity in the specific character of the injury, but rather in its abstract character ; it is sameness in accordance to value." "In crime, when the infinity of the deed is the fundamental issue, the mere specific external elements tend to vanish, and the parity remains merely the fundamental rule for the essential, i.e. for what the criminal deserves, but not for the specific external form of this which is deserved. It is only according to their specific form that theft, robbery, fines, imprisonment, etc., are absolutely unlike, but, according to their value, to their general capacity to be simply injuries they are capable of comparison." In other words, the essence of crime is rebellion against the general prin- ciple of right ; and therefore the question by what external means, conformably to quality and quantity, should this rebellion become expressed as a non-reality is not decided by the principle. First the " idea as to value " fixes the ratio of comparison between the act and the means of its elimination. Accordingly (as is not developed however by Hegel) the dimension and the form of the punishment depend upon the " idea as to value ", i.e. upon the valuation in a certain State and at a certain time. These ele- ments of dimension and form would not be governed by the prin- ciple.^ Furthermore, it is quite conceivable that the declaration of the non-reality of the wrong may not be an affair of the State. It can take place in the form of the vengeance of the party injured. This, however, is imperfect and easily becomes pernicious, since the negation of wrong easily becomes confused with wrong or can degenerate into wrong, when in the form of vengeance.^ 2 Cf. the statement in § 63 concerning the conception of "value." Supplement to §96: "How any crime may be punished is not to be determined by these ideas {i.e. as to value), but positiv(> provisions are necessary." Only in the case of murder, according to § 101. a different condition exists. ' "Since the entire range of existence is comprehended in life, therefore punishment cannot consist in a valuation which cannot exist, but can consist only in deprivation of life." Here is seen an effect of the traditional view, knd the "retribution" view, the idea of which has not entirely disappeared. 3 §§ 102, 220. 461 § 97] HISTORY OF THE THEORIES OF CRIMINAL LAW [Part II This theory which, because of its frequently abstruse method of expression/ is not sufficiently appreciated by many, has, at any rate, one merit. As appears from the deduction given above, it can be reconciled to history. It is able to recognize in revenge the preliminary step towards punishment inflicted by the State. It is able to regard the numerous forms of positive definite punish- ment as phenomena in which its principle manifests itself without becoming inconsistent. But its most important service is that it does not conceive punishment as an evil, i.e. as something which has, as its chief purpose, the creation of an evil for the criminal. Here, for the first time, from the standpoint of the absolute theo- ries, there is actually eliminated the contradiction between moral- ity (especially Christian morality) and punishment inflicted by the State (not merely pedagogical discipline). The attempt is also made not merely to justify punishment as a necessary standard for people as a whole, for the community, but also to show that punishment is also required by the indi- vidual characteristics of the offender himself. Punishment is even a right of the criminal. In him there exists that universal reason which controls the punishment. Thus in the punishment " the criminal is respected as a rational being." ° This last statement, indeed, sounds almost like mockery, and seems calculated to bring Hegel's theory into ridicule. As ad- vanced, it is, moreover, incorrect. The criminal does not recog- nize that universal reason which obtains in right and in positive law. At least this is the case with that hardened class of criminals who, as it were, engage in war with the rest of humanity. But the principle approaches the truth. Even with hardened crimi- nals an enlightened criminal law proceeds differently than with a beast which threatens our life or property, or with the animal which we sacrifice, perhaps in a painful manner, for purposes of humanity. Compared with these last-mentioned methods of procedure, punisliment alwaj's honors the reason in the criminal. It ought not to be said that the reason in the criminal demands the punishment. It must be said that, strictly taken, the criminal severs himself from lawful society. Therefore he can be dealt with without consideration, and so it was done in the initial steps of legal development. The criminal lost all rights. The moderate •• In the foregoing presentation this has in part been translated into ordinary language so as to be more easilj^ understood. ' P. l36. 462 Chapter VI] CRIMINAL THEORIES IN GERMANY [§ 97 punishment of later times is thus a benefit to him. The bond of legal society is still regarded as existing in respect to the criminal, and thus, as a matter of fact, he is respected as a rational being. Here again we have Fichte's ideas, viz., that to be punished and not to be treated as one absolutely without rights is an important right. Hegel's distinction between civil wrong and punishable wrong also approaches the truth. In the first place, however, the inter- mediate grade of wrong, Hegel's fraud (" Betrug "), must be re- jected. This is apparently the result on one hand of his well- known dialectical division into threes, and the result on the other hand of the observation that in social intercourse the maxim " Invicem sese circumscribere licet " can apply and therefore cunning fraud be immune from punishment. This latter, how- ever, is so only to a limited extent and not generally. In the second place, it can only be conceded that punishment generally limits itself to intentional wrong. But by no means every inten- tional wrong is punished. There are also cases of civil wrong where malicious intention is present and cases of punishable wrong where it is not present. There can, however, be no punishable wrong without there being some will (although perhaps only indirectly) responsible therefor. The starting point for the question, which is still, in our times, so much discussed as to the distinction between wrong that is punishable and wrong that is not punishable, is contained in Hegel's remarks. The dialectical transformation of right in punishment is more unsatisfactory. Right is not an active principle. A right does not say : you must do this ; it says merely : you may do this. If the injured party (or the State) has the right to punish, yet he is not obliged to punish. The duty to punish, which, according to Hegel, apparently must be received along with the right to punish (at least where the State is concerned), requires a special demonstration. It does not follow from the necessity of self- preservation of the law\ From this the mere deduction may be made that, if one entitled thereto desires, a condition actually contradictory to law shall yield to a lawful condition. It necessa- rily entails nothing more than a compulsory restoration dependent upon the pleasure of the one entitled — as far as such a thing is possible. A duty can be derived only by seeking out a moral basis in the right. A right in itself is not active, but morality under some circumstances must become acti\'e or cease to be morality. Thus there is a flaw in Hegel's deduction, which also 463 § Ü" From the moral duty e.g. to feed children, there does not arise the right to do so at another's expense, — indeed there arises no definite right against others. " Cf. e.g. p. 327 : "Punishment is the right inherent in the crime." '2 "Not punishment, but crime and punishnunit together must be re- garded as the Janus head, — the face with the ft^atures of WTong is the crime and the face with the features of justice is tlie punisliniont." Ileinzo, p. 327. Such a figure can be made use of at thi> end of a deduction in order to make it more clear and impressive; but at the lieginniiig of the deduction it leads to the error of confusing the figure and the deduction and thereby even itself to become uncertain. " P. 175. "And the web is so loosely woven that the warp and woof can be distinguished without effort. We also have lyTC before us one of the so-called mixed theories to which the criticism of its own author as to such mixtures may be applied." 485 § 101] HISTORY OF THE THEORIES OF CRIMINAL LAW [Pakt II are finally inserted in Ileinze's theory. They are designated simply as " accidental purposes of punishment." But in a theory there can be nothing accidental. One can not thus accidentally ad- here to an absolute principle, nor cherish the pious thought that these relative purposes are so peaceably reconciled to each other or to the principle of rehabilitation or of banishment or to the principle of pronouncing the unworthiness of the criminal or his crime. Ileinze refers here to the operation of the statute. The statute may indeed reassure the judge but not the legislator or the theories and their philosophers. And since (on p. 333) the justice of mere police penalties, which may be felt as keenly as criminal punishment, is founded simply upon the fact ^^ that the State has the right for the sake of the public welfare to gain its end by means of threatening with punishment, what need was there, for expounding together crime, wrong, and punishment, of "the right inherent in the crime" and the "Janus-head"? Would not the theories of Bentham and Feuerbach have been more simple and logical ? Since it seems to be a natural right of authors to place their own theories at the end of their investigations, although chrono- logically regarded this may have preceded some other theory, so, with Heinze's " combination theory ", we will take leave of the description of the evolution of Hegel's principle and turn to the other most recent theories. Upon the whole, either they amount to a renunciation of any philosophic explanation (except in so far as they are content in the belief that the description of a phenom- enon or its process constitutes its explanation) or else they con- tain simple reproductions of former theories. A special position can perhaps be assigned to Binding's theory, which will be men- tioned at the close. §101. Von Kirchmann. — ^ The doctrine of Von Kirchmann ^ in reality entails a renunciation of every theory of criminal law. This renunciation, in a peculiar manner, reminds one of Kant. But closer consideration reveals that here we have to deal merely with the shell of Kant's philosophy, and not with its true kernel. According to Kant, morality consists in an unquestioning obedi- ence to the categorical imperative, in this direct fact of our per- ception. Kant understands by this the unconditional submission " As to the relation of criminal punishments and those of the police, see infra. 1 "Die Grundbegriffe des Rechts und der Moral" (2d ed., 1873). 486 Chapter VI] CRIMINAL THEORIES IN GERMANY [§ 101 to the transcendental principle, existinjj; in God of development or being. But Von Kirchmann derives from this an unquestioning obedience towards any authority whatsoever, i.e., obedience to every authority which appears absolute to the individual.- For this power (of God, but also of the ruler, of the nation as a whole, and of the father over the child of tender years) there is no morality, since it considers itself sovereign and actually exercises sovereign prerogatives.^ Now law in the subjective sense, in its very nature, consists of physical power, which, on one hand, is strengthened and protected by means of the authorities, and on the other by means of a coercion called by the authorities to their assistance, and especially by means of threatening with e\il for any case of injury done to this power."* Criminal law is thus degraded into a mere means of deterrence. We do not need worry our heads to ascertain whether or not such a conception violates the sense of justice and morality or stands in contradiction with other known facts. For the settlement of the controversy between absolute and relative theories. Von Kirch- mann has, as a result of the foregoing, a ready and simple experli- ent. " Both utility and morality are the foundations of pun- ishment ; the former for the authorities, the latter for their subjects." ^ In other words, the individual must accept all that the authority ordains, but the authority may do what it pleases. There is justice only within the sphere of the statute, but to the statute itself the standard of justice cannot be applied.^ Schopenhauer. — Schopenhauer's conception of law and of criminal law is an almost perfect reproduction of Feuerbach's theory on a metaphysical (Spinoza) basis, but without Feuer- bach's exact presentation in detail. In accordance with his gen- eral philosophic doctrines, Schopenhauer does not require a special justification for punishment, in the sense that no injustice be done to the party punislied. For, according to Schopenhauer, the existence of the individual being is only an appearance ; since the 2 "Grundbegriffe", pp. 62 el seq., and especially p. 65. 3 P. 113. •• "Grundbes^iffp", pp. 107 el seq., p. 111. ^ "Grundbegriffe", pp. 165 el scq. 8 A broader theory of the law of might and morality ean scarcely be conceived. Also cf. especially p. 178. "It has already been shown that the substance of morality is based upon the accidental, disconnected, and often doubtful commands of various authorities. Von Kirchmann also in 1S48 published a pamphli't which was intended to demonstrate the worthlessness of all judicial practice." ("Die Werthlosigkeit der Jurisprudenz, ein Vortrag".) 487 § 101] HISTORY OF THE THEORIES OF CRIMINAL LAW [Paut II veil of the " Maja " does not permit the individual to see the entire truth, the individual believes himself distinet from the rest. Also, if the individual being inflicts suffering upon another, this in reality brings harm to himself, and as a result every evil act carries in itself its own retribution ; a further retribution, such as vengeance, is absolutely senseless and without purpose.^ Law, the State, and criminal law are consequently merely external means whereby, in the world of appearance, there may be reduced to the narrowest possible limits, with a certain sacrifice, the doing of harm, which is the result of the irrepressible " egoism " with which every living being is imbued. Law and the State therefore have nothing to do with true morality, which is only in the common feeling, in the recognition that one is merely part of a whole, although law has its origin in morality to the extent that it marks the point to which the will of the individual can go, in its own assertion, without denying the existence of another will, which is in any case a violation of morality. The State is based upon well- calculated " egoism " because no one desires to suffer wrong. Morality, on the contrary, desires no one to do wrong. Up to a certain point the result of both can be the same. " A Wolf with a muzzle is as harmless as a lamb." The criminal statute, i.e., the threat contained in the criminal statute, is nothing other than the " muzzle " for the egoism.^ If this " muzzle " required victims in the enforcement of the punishment, then, in Schopenhauer's sense, one could simply find consolation ; to meet the criticism that the criminal must have been sacrificed for others, one could say that in reality the punishment was not inflicted upon one but upon all. And also, for other reasons, it would be permissible to behead as many as one might choose, since the beheaded would all be dispatched to that happy land of indefinite nothing or every- thing, the " Nirvana." However, Schopenhauer seems to have an indefinite feeling that ' Cf. particularly: "Welt als Wille und Vorstellung" (2d ed. of com- plete works by Frauenstädl, Vol. II, 1877), I, p. 418. Moreover it deserves notice that the theory of deterrence has been gaining adherents, recently. Doubtless this has been furthered by the exaggerations and extravagances of the theory of reformation, and also by the apparent simplicity of the theory of deterrence, the defects and contradictions of which are not \isible to the purely philosophical \iew of those who are not jurists. This also holds true in respect to the indefinite "Fear and DiscipUne Theorj'" of Vlrici ("Gott und der Mensch", II, 1, esp. pp. 411 et seq.), Avho in Opposition to Schopenhauer proceeds from the freedom of the will (cf. pp. 12 et seq.). * See citation above ; p. 408. 488 Chapter VI] CRIMINAL THEORIES IN GERMANY [§ 101 since all are as one and hence all are equal, it will not do to leave the world of appearance to its own brutality.^ He accordingly remarked — herein reminding one of Rousseau — that, for the security of his life, the individual has pledged his life, his freedom, etc. ; but at the same time he acknowledges, since a pledge ^° has meaning only if it possesses value, that a certain value is as a matter of fact attached to the individual. And so Schopenhauer's philosophy varies back and forth be- tween the world as it actually is (the " thing or things in them- selves ") and the world of appearance. Schopenhauer embarked upon a voyage into the world of " things in themselves ", which Kant had declared to be impossible and of which he believed only a fragment could be acknowledged in the " practical reason " under the domain of ethics. In a subjective mood (and so fre- quently that the reader finds difficulty in observing it) he shifts the scenery between the world of appearance and the world in abstract. Principles which according to Schopenhauer can have application only in the world in abstract are suddenly applied to the world of appearance. Practically regarded, it is the philosophy of the " blase." If things become disagreeable, the sensitive philosopher retires to the world in abstract ; then suddenly the world of appearance has no further meaning. Strictly examined, the State and law^ have only those meanings which protect the comfortably located philosopher from unpleasant disturbances. In criminal law particularly he can be little interested. He him- self will not commit a crime. For character is unchanging and he acts or fails to act as necessity dictates, and the philosopher knows his character. So, criminal law is, in reality, only for the brutal masses, or, at any rate, for those who have charge of their dis- cipline and prisons. It is merely sj^nipathy that connects the philosopher with the criminal. This s\Tnpathy, however, does indeed lead to a noble sugges- tion, which can be turned to good account in the criminal law : We are made of the same material as the criminal whom we con- demn ; we all share his guilt with him ; therefore we may not use him solely as a means for accomplishing other purposes. There " IT, p. 687: "A criminal code should bo nothing other than a list of motives in opposition to criminal acts." '" The theory of pledge, under which the theory of retribution crept in, is introduced by Schopenliancr (II, p. (3S6) in commendation of the death penalty for murder. But why is it not also in commendation of the death penalty for manslaughter caused by negligence? 489 § 101] HISTORY OF THE THEORIES OF CRIMINAL LAW [Paut II arc many evidences of deep insight on Schopenhauer's part which one must a(hiiire. And even if one regard his funflamcntal prin- ciples as absohitely wrong, one can only agree with him in his considering the criminal dispassionately and in a certain sense as a product of nature, and in his application of the punishment (like Hierokles) primarily to the act rather than to its author.^^ His specific statements concerning law and criminal law, where they are not limited by his philosophic principle, will always main- tain their value. In conclusion, he rises above Feuerbach in that he does not explain crime merely by sensual motives, and that he does not make so complete a separation between law and morality as Feuerbach would have done.^^ Dühring, E. von Hartmann, von Liszt. — The theory of criminal law in Diihring,^^ E. von Hartmann ^* and von Liszt ^^ amounts to a mere description of the origin of criminial law, with, however, a repudiation of the negative tendency of ideas of retribution. According to these writers, criminal law developed from the nat- ural impulse for revenge, the active return of an injury received. This impulse towards retaliation, according (especially) to E. von Hartmann, while directly related to the impulse of self-preserva- tion and of necessary defense, unconsciously serves the end of creating and supporting the legal system. Later, however, it becomes more moderate, and, since it comes to be exercised by the State and no longer by individuals, it consciously assumes various purposes, — the purpose of giving security to the community and the purpose of bringing about a reformation of the criminal. n cf. "Welt als Wille und Vorstellung", II, p. 685: "According to my view, there lies at the basis of criminal law the principle that not particularly the man but rather the act is punished, from which it does not follow that the criminal is merely the material substance in which the act is punished." 12 A philosophy such as that of Schopenhauer, which completeh' denies the freedom of any one and which nevertheless maintains the unity of all, necessarily wanders back and forth between refined sentiment and gross brutality. In this respect compare the discussion in "Die beiden Grund- probleme der Ethik" (pp. 238 et seq.), concerning the torture of beasts and the statements in "Welt als Wille", II, p. 687: "The damage to be avoided gives the proper standard for the punishment to be threatened, but it does not give the moral value (lack of value) of the for].)idden act. Therefore the law can justly cause penal servitude to be inflicted for allow- ing a flower-pot to fall from a window, or can impose labor with a wheel- barrow for smoking tobacco in a forest in the summer, although this be allowed in the winter." 13 "Kursus der Philosophie" (1875), pp. 219-243. " "Phänomenologie die sittlichen Bewusstseins " (1879), pp. 196-212. '5 "Das deutsche Reichsstrafrecht systematisch dargestellt" (1881), §§ 2-6, pp. 2-24. 490 Chapter VI] CRIMINAL THEORIES IX GERMANY [§ 101 Abegg had previously suggested that this transformation oi the natural impulse was the last step, but was not the realization of the purpose aiming solely at human welfare. He designated it as the realization of justice. Von Liszt ^'^ positively rejects this last step : everywhere progress lies in making this natural impulse, as a power of nature, ser\iceable to the purpose to be attained. Definiteness of aim and choice of means suited to its purpose are the criteria of all progress. E. von Hartmann ^^ expressly asserts : " Every concession to the demand for the ' talio ' {i.e., retril)ution in kind) for its own sake we must regard as immoral. We cer- tainly no longer inflict punishment because sin has been committed, but rather that sin may not be committed." This view does not need to consider justification of punishment as being justice in respect to the individual criminal. The natural impulse is there and as such has its justification. However, E. von Hartmann's remarks concerning the possi- bility of making wrong cease to be harmful, not by means of pun- ishment but by means of forgiveness, show that here a certain rem- nant of contradiction still pre\'ails (even that which is natural is regarded as justified " per se ") and that the views of the writers mentioned do not contain a theory but merely a description. It is quite evident that we may derive from them neither the slightest information as to the function of legislation nor a criterion for the criticism of the historical and positive. ^^on Liszt, however, desires, by emphasis upon the purpose of punishment, to introduce new progress, and so long as his theory keeps time with a certain indefinite " music of the future ", it pros- pers exceedingly.^^ Thus he says : " Punishment in its substance and range must be one thing if it would prevent, another if it would reform, and still another if it would furnish security. How- ever, it is only seldom and for the most part unconsciously that modern legislation cherishes this thought. It deals in the same manner with both the incorrigible habitual tliief and the criminal of opportunity who is crushed with repentance. But tlie sharp emphasis upon the element of purpose, both in law generally and especially in punishment, is constantly finding countless and more important adherents. And it is to be hoped that in the not too 1« Cf. ibid., p. 24 (§ 6). . " P- '-10- '^ Von Liszt, "Das deutsehe Reiohsstrafrefht", p. 4. [Since the h'arned critic wrote the above text, von Liszt's views have enlarjijed ; he now stands as the leader of a modern school of thought in Germany. Compare § 102«, post. — Ed.] 491 § 1Ü2] HISTORY OF THE THEORIES OF CRIMINAL LAW [1^\UT II Public' Criminal Law. Effect of Conviction by the Publie Criminal Law. Differ- ence of the Public Crim- inal Law and Disciplinary Punislimcnt in .\ttitudo towards the Offender. Other Varieties of Dis- ciplinary Punishment. § 112. Summary. 1 [This Chapter forms the final Chapter (D) of the author's Part II. But as it is not historical in treatment, but critical, it is here placed as an 497 § 103] APPENDIX § 103. Defects of the Absolute and Relative Theories. — Con- sideration of all the theories of criminal law heretofore advanced reveals that none of either the absolute or the relative theories has been satisfactory. The absolute theories lack purpose and also pre- clude the possibility of the criminal law being sufficiently used to serve the well-being of the public at large. The relative theories are in overwhelming majority," but these are unable to satisfy the conscience of the people, because (as they are ex- pounded) they renounce the principle of justice. An impartial mind will always require that it be the crime, and not some pur- pose disconnected with the crime, which brings down the punish- ment upon the offender. The combinations of these two theories must also be charac- terized as erroneous ; for an absolute foundation of criminal law, taken unrestrictedly, admits of no compromise with relative theories. That in this respect such combinations, and the so- called " pragmatic coalition," suffer the same fault of inconsist- ency, we have previously undertaken to demonstrate. Merit of Hegel's Theory. — Of the previous absolute theories, there is only one which, if logically carried out and freed from erroneous additions so as to be properly understood, is reconcilable both with utilitarian purposes and the course of history. This is the theory of Hegel.^ It is, in addition, entitled to a certain presumption of correctness, because of the fact that it has been adopted with more or less modifications by a considerable number of the most eminent criminalists in Germany. There remains, however, in Hegel a remnant of the old theory of retribution, and punishment cannot be deduced from the conception of right as he has attempted it. The chasm between wrong and punish- ment cannot be bridged over by defining the latter as a negation of wrong and consequently an assertion of right. It is conceivable that wrong could be removed from the world by some means other than by that which we call punishment, e.g. by the forgiveness of the wrong or the doing of kindnesses to the offender. E. von Appendix. It belongs more naturalh' in the "ISIodern Criminal Science Series," already cited. Von Bar's own theory is on the whole the most complete, correct, and Tvell-balanced of any contributions to the subject. — Ed.] 2 CJ. also Sontag, in Dochoiv's and Von Liszt's "Zeitschrift für die gesammte Rechtswissenschaft" (1881), pp. 486 et seq. ^ In this respect, Hälschner, "Das gemeine deutsche Strafrecht", p. 4. carried his point as against Merkel, "Zeitschrift für die ges. Reehtswis- senschaft" (1881), p. 555. 498 APPENDIX [§ 103 Hartmann'' makes the apt statement that forfi;iveness corresponds to the former moral balance, i.e. that existing before the wrong, but that the payment of an evil with an e\il presses down further one end of the scales. ^Moreover, as we have prexiously stated, there is nothing in the conception of right which requires an active prosecution of the criminal.^ Morality as the Basis of Law. — On the other hand, morality is an üctüc principle — at least to a certain extent. The law can give to one the right to kill another, e.g. can give the master the right to kill the slave. That which determines whether or not we exercise this right is not the law, but rather a morality, cor- rectly or incorrectly understood, in accordance with which (whether we will it or not) we measure all our acts of which we are clearly conscious. Now it is not the meaning of an absolute principle that a right is given to any one to punish or not punish the criminal, and certainly not a right to be exercised at pleasure. It is rather the meaning that the right is also essentially (although there are conceivable exceptions) a duty. Consequently the absolute principle of criminal law can be found only if we disco\'er a moral basis in the law. The proof that law is nothing other than the morality of the coimmuiity which is conclusive in respect to the individual is not to be expected here.^ There are, however, a great number of legal rules which have no direct relation with morality, but rather rest upon historical tradition or upon j)uri)oses of expediency. These also are of service to morality, since they preserve to the individual a sure province for the exercise of choice and thus of ethical action.^ Regulation, therefore, whether it * "Phänomenologie des sittlichen Bewusstseins", p. 208. ^ The objection that Hegel gives to conceptions a reality which they do not possess {Von Liszt, "Reichsstraf recht", § 6, p. 22) is based upon a misconception. Hegel does not think that the conception can shut the criminal in jail or bring him to his death, but he thinks that the power of the conception over men can have this effect. '^'Schopenhauer even says ("Die l)eiden Orundprobleme der Ethik", p. 218) that legal doctrine is a part of morality which establishes what are the acts which one may not commit if lie would not harm others. In "Der Welt als Wille und Vorstellung" (1, p. 407), legal science is called "transformed morality." Cf. the meritorious but little-known work of Felix Ebertij, "Versuche auf dem Gebiete des Xaturri'chts", l.s.")2. and the able work of Jellinek, "Die socialistische Bedeutung von Recht, Staat und Straf(>" (Wein, 1878), especially p. 42: "The law is the ethical minimum." ' Then-fore to a certain extent law even protects unethical conduct, e.g. the unethical use of a right for one's own advantage and the dis- advantage of another. If all morality w(>re included within the law, freedom would be destroyed and with it ethical conduct. 499 § 1031 APPENDIX take one form or another, may merely as such hty claim to ethical value. It follows therefore that an act which violates the legal system is, as such, more or less immoral, either directly or in- directly. § 104. Ethical Judgment, Especially Ethical Disapprobation, as a Necessary Element of Morality. — Now the nature of ethics is such that from the ethical or unethical character of each act it forms or seeks to form an opinion of others. In the language of Ilerbart, it could be said that one involuntarily seeks to determine whether the act furnishes a basis for approval or disapproval. However, a thinking man, who has learned that the motives lead- ing to human action are often very complicated and that the cir- cumstances under which these acts are done are often very diffi- cult to comprehend, will frequently be reticent about forming this opinion. The familiar " Judge not that ye be not judged " of Christian morality stands opposed to that spiteful condemnation of the faults of others in which the individual egoism loves to exhibit itself as a shining contrast to the supposed shortcomings of others. But in itself there is nothing immoral in the forming of opinions as to the actions of others; it may even be considered an essential for the development of moral character. From the acts of others and their consequences one acquires his own morality and the lesson for his own life. Where the actions of another dis- play an aspect either strikingly in harmony or at variance with morality, moral judgment takes place uncontrollably, with the power of a natural impulse. The discovery of some especially grave crime, e.g. an attempt to take the life of a highly revered ruler, causes this judgment to come into being with the irresistible force of a natural instinct ; no hairsplitting distinctions ^ are able 1 Binding, "Die Normen und ilire Uebertretung", I, p. 184, says that we may not derive law from morality and as proof of this he argues, first, that in the province of morality an unconditionally binding rule cannot exist — "unquestioning obedience to the so-called moral views of public opinion represents a very low degree of moral value" — since the ethical character of an act consists in its harmony with the conscience of its author ; and, secondly, that the rules of morality are too changeable. To which the answer may be made that no intelligent man can confound public opinion, i.e. in Binding's sense, "the fashionable opinion of the great majority" with established morality, e.g. Christian morality as it is generally recognized. Such a shifting of the expression and the idea has no placeln scientific investigation, and is a questionable method of polemic. Taking up the last point, it is not true that moral opinions change s;) rapidly, "go up and down as waves", as Binding believes. On the con- trary," they are far more stable than principles of law. The taking of excessive advantage of another's necessity, for example, has been long considered as morally reprehensible, while as is well known the law 500 APPENDIX [§ 104 to limit or deprive the individual or the public at larjije of this moral judgment. Diihring and Von Ilartmann recognize this in their theory of resentment, or moral antipathy, but they pay too much attention to the egoistic aspect of the c^uestion. In natural man this moral judgment is most strongly manifested if he himself be the party suffering from the immoral act. But this restriction of the idea to one's own injury is not necessary. On the contrary, where man is changed from his natural state (i.e. of isolation) into that of membership in a certain association, where he becomes a Z(oov ttoXltikov, this judgment, although with less spontaneity, is likewise provoked and occasioned by the malicious injury of (others. Disapproval of an Act Entails Disapproval of its Author. — This diapproving judgment prevails j)rimarily against the act. But of necessity it extends also to its author ; for an act cannot be con- templated independently of its author. If the author is not known individually, there appears always in the act, although in hazy and indistinct outlines, a mental jiicture of the author. Whether we may start from the acceptance of extensive freedom in human action, or from the assumption of complete determinism (the " operari sequitur esse " of the Scholastics and Schopenhauer), the deed appears as the product of the nature or character of its author. In our disapprobation of the act we also always express our disapproval of the personality of its author.- The Possible and Proper Methods of Expressing this Disapproval. — But this disapprobation in the abstract ^ does not reveal the relative to usury has undergone many changes. Binding even confuses the moral rule with the compreliension l\v the same of the individual case. This inclusion of the act with tliose coming under the ruk' is frequently more difficult and is subject to more changes in "fashionable opioion" than in principles of law. Why this is so, appears later. But as far as the sovereignty of the individual conscience is concerned, a thing disputed by Binding, this reproduction of Fichti''s theory of morality is untenable according to the modern ri>searches. The conscience of the individual is a product of history and of the morality of the entire nation. ('/. //ej/c/, "Philosophic des Ii(H'hts" (3d Ed.), pp. 192 cl sa/.; Lolze, "Mikrokosmos" {'.kl Ed.), 11, pp. 308 el seq.; Alnux, "lieber die Wandlungen des Moral im Menschengeschlechte" ("Vortrag", Basel, 1879); Baumann, "Handbuch der Moral und Abriss der Rechtsphiloso- phie" (1879) ; Von Ihering in Schmoller'' s "Jahrbuch für Gesetzgebung", etc. (N. S. Vol. 6, 1882), pp. 1 el seq.; and especially in contradiction to Binding, see Jellinek, p. 123. ' This answers the ol>jection mad(> by Hugo Meyer to the reproba- tion theory that disappro)>ation of the person of tlu' author of the act yet remains. On the other hand, that puiiisiiment is primarily applied against the act and not against its author lias been maintained ever since antiquity by many of the most profound thinkers. ^ Seber, "Gründe und Zwecke d(T Strafe" (187(5), p. 11, regards the principle of disapprobation as not sufficient. Although it can be conceded 501 § 104] APPENDIX maniitT of its concrete expression. It could possibly confine itself to the mere mental processes of the one clisapprovän^ ; or on the other hand it could manifest itself in a destruction of the author, which except for this would be without purpose. For the de- struction of an object without ulterior jjurpose is of necessity the strongest expression that there is nothing for which it should exist, — that it is of no moment, and is thus the strongest expres- sion of absolute disapproval. Reserving the various methods for the expression of this disapproval, we will seek first to establish the extent of the justification of this possibility of expression.'* The more doubt involved in the moral judgment of an act, the more reserved and the less manifest must be its disapproval. But, vice versa, in the case of obviously grave violations of morality, wherever there exists a moral community this judgment neces- sarily becomes a public one. For (as even Kant believes), morality is not a thing prepared for all times and exclusive of everything else ; it is a product of the history of humanity and thus a prod- uct of the community. The moral judgment of the individual is founded upon tradition, upon the moral judgment of others. This necessarily presupposes a certain communication of the moral judgment, without which tradition would be impossible — in other words, it presupposes a certain publicity of the moral judg- ment. Here again logic is in accord with the actual facts. In the case of grave violations of morality, in the case of serious crimes, public disapproval, as already remarked, manifests itself irre- sistibly. Public disapproval therefore, in a manner more or less formal or informal, is within certain limits and in certain cases that the inviolability of certain fundamental maxims of morality must be continually emphasized, he believes proof was yet needed that this em- phasis can be made only by punishment. However, this proof is lacking in Seber's own arguments, which (p. 19) amount to a paraphrase of my own, yet {cf. especially p. 29) with the elements of uncertainty that -^vitii the fundamental principle of criminal law — - emphasis of certain funda- mental moral principles — there are coordinated the principles of deter- rence and reformation. The result is that in reality the asserted prin- ciple loses its true meaning and can with difficulty be distinguished from a moderate principle of detei-rence. The proof desired by Seber is already furnished, if it is proven that in general punishment is requisite. There is no need to show that ijunishment is absolutely necessary in each in- dividual case, since the law must as a rule ignore the special features of the individual case. And this is certain, that if criminal justice should at the present time suspend its functions, morality would thereby receive its deathblow. '' According to our view, that which we are accustomed to call punish- ment {e.g. deprivation of freedom or property) is only the amount of ■punishment. Cf. the derivation and earlier meaning of the word "Strafe" ("punishment"). 502 APPENDIX (§ 104 the necessary attribute of morality ; and since without morahty (as will be at once conceded), a human community could not exist and the progress of humanity would be altoj^ether impossible, the public disapproval of certain acts contrary to morality is an unconditional right. Every disapprobation of an act, or (what amounts to the same thing) of its author, has for the latter at least the consequence that he is lowered in the moral estimation of those who disapprove. One cannot treat him entirely as if he had not given reason for disapprobation. If it were desired to do this, then the disappro- bation should be removed by some " factum contrarium." If disapproval of an evil act did not find some real expression (this may consist merely in the withdrawal of the confidence previouslx- reposed in its author), complete forgiveness applied universally would abolish morality ; for this would render necessary the as- sumption that an act contrary to morality was not prejudicial to the moral standing of its author. If the precepts of the Founder of Christianity commend something dift'erent, it must be re- membered that in part they are expressed in the excessi\'cly em- phatic manner characteristic of oral statements. When directed towards an individual case, this stronger method of statement can seem justifiable; and these precepts were primarily intended to govern the private intercourse of a small circle who called them- selves the " Children of God." The application of the moral principles of Christianity to the Christian State was left to the future. But even in case of the most complete forgiveness (for- giveness in the sense that not the slightest intentional evil accrue to the wrongdoer as the result of his act), yet there always remains a certain shadow as a result of the evil deed, which entails for him a disadvantage if he lay claim to full fellowship with us. This is something we cannot avoid, even if we so desire. Now if the \iolation of morality is a very gra\e one, so that the wrongdoer assumes the role of an antagonist to that moral system which deals out rules of conduct to individuals as conditions of their existence and further development, it comes to pass that the moral community regards the wrongdoer as no longer a i)art of itself. Every association has the right of expulsion as against the individual who does not observe the rules which it regards as the conditions of its existence. Christ himself said in such a case : " Let him be unto thee as a heathen and a publican." '' Since 6 N. T., Mattlu'w, xviii, 17. 503 § 104] APPENDIX in the early periods of the human race, law and morality are the same, it is quite logical that a serious violation of law, of morality, brings upon the wrongdoer exclusion from the legal association, i.e. outlawry. For this reason (as Fichte has correctly observed), everwhere the original punishment was outlawry. This outlawry, as was naturally the case in the rather loose association of the old German " Edelhöfe " and " Freihöfe," might affect only the party injured, who thereby obtained an unlimited right of revenge. It might, as was the case in the city of Rome with its closely crowded population, entail an immediate outlawry in respect to all (as " sacer "). Accordingly every expression of disapproval, even where it in- volves complete destruction of the offender, or any other conceiv- able injury to him as an expression of this disapproval,^ is justice in respect to the offender: "Jus Isesi infinitum." The latter cannot complain, since he it was who first severed the bonds of morality and law. This is the true and correct meaning of the principle (which Hegel indeed did not fully comprehend) that the method and measure of punishment belong to the realm of chance. Hegel herein overlooked the fact that history also gives prominence to a certain principle of justice. A remnant of the original conception always continued to exist. Even the strongest adherent of the principle of justice in its ordinary sense, which would measure the justice of punishment in accordance with its method and amount, cannot to-day fail to perceive that to a certain extent the criminal and his sphere of rights are placed at the disposition of society. Otherwise it would be . impossible to in any way account for the purpose of reforming the criminal, etc. Any recognition of a relative purpose in punishment necessarily carries with it the principle that the criminal may to a certain extent be placed at the discretionary disposition of society. Disapproval is Not Retribution. — The history of criminal law exemplifies the foregoing idea in its course of gradual « Cf. also C. L. Voti H aller, "Restauration der Staatswissenschaften", II, e. 34. On this point I modify my earlier view. I had found a justi- fication for the \'iolation of the sphere of rights of the individual in this, viz. : that in other cases {e.g. in war) the indiAidual may be sacrificed for the sake of the communitj^ ("Grundlagen des Strafrechts", p. 76). But such cases are different. The individual and his property may be sac- rificed only in so far as voluntary acquiescence would be of service. Punish- ment is essentially coercion. This applies especially against the attempt at a justification of punishment in Ed. Hertz, "Das Unrecht und seine Formen" (1880), p. 48. 50i APPENDIX f§ 104 advancement.^ In the beginning, vengeance knew of no restraint. Retaliation in kind ("lex talionis") furnished something akin to a fixing of the amount for certain cases (but by no means for ail). It was a very imperfect measure, but nevertheless a measure which is characterized by a certain ideal symmetry. But, as history shows, this is not a fundamental principle, but rather a principle limiting the application of the dominant principle of destruction. A readily conceivable change has been able to raise the idea of retaliation to an independent principle. It is absolutely impossible for any one who has given close consideration to the history of criminal law even to speak still of the possibility of a principle of retaliation. There is sense in saying that evil things and persons must be destroyed. It is possible only for one who considers himself an administrator of divine justice to say : " I do an injury, — because evil must be requited with evil." This idea is of later origin, and was long ago proven to be inapplicable for the criminal law of the State. It is only if one cease to regard retaliation as the causing of evil or sorrow, and regard it merely as tending to lessen progress and hinder development, that it has a rational meaning, and further- more a meaning in harmony with the idea of dis'approbation. If to live and act morally is in accordance with the general rule of existence, then the opposite must impede and hinder the author of the immoral act,^ just as he who lives contrary to the laws of health suffers injury for so doing. The moral system abandons the evil doer or, what amounts to the same thing, it turns against him ; but to find its principle in causing pain to the evil doer, is logically impossible and is the opposite of morality. The more firmly the moral system is established, the less vigorous need be its expression of diapproval — for in many respects this is supplanted by the natural reaction of the moral system. If 7 Ulrici, "Gott und der Mensch", II, 1 (1873), p. 30:?, iiltliouRh he acknowledges that the one element common to all punishments is dis- approval, rejects mv argument because pure disapproval, historically speaking, did not arise until relatively later and public ijumshmcnt was chiefly introduced for the suppression of private vengeance. The first point^ however, merely corresp(mds to the law of development ; and as far as the second point is concerned, it may well be asked whetluT ven- geance also does not contain tiie element of disapprobation. I Irici would regard vengeance merely as retrilnition and al)sohite!y repudiates both. Then punishment inflicted by tlie Slate would he a eomi>lftely new principle not in harmony with history, a thing which is historically false. * This opinion is expressed by Merkel. See ante, § 99. 505 \ § 1041 APPENDIX the thief has (Hfhculty in fin(Hn^' some one to receive the stolen goods, because general honesty sul)jects the title of a v'endor to a scrupulous test, theft hereby comes to be something which in most cases does not i)rofit the thief but is only to his detriment. If to the cheat, the swindler and the conscienceless speculator, the doors of the homes of honorable people (who form by far the great majority) are closed, then in many cases the expression of formal disapproval is perhaps superfluous. Consequently punishments become milder as civilization increases,^ i.e. a civilization which signifies an advance not only in knowledge and refinement of enjoyment but also in morality. It is possible that in an ideal state of society the individual criminal might be left simply to the consequences of his own crime ; or there might be applied the principle : Overcome evil not with evil but with good. Thus punishment, regarded as disapprobation, may be reconciled with Christianity, but regarded as retribution through human agencies, it is fundamentally the opposite of Christianity. For (as even Kant has fairly and candidly shown) the principle of retribution never permits forgiveness. Various Phases of Disapprobation as Punishment. — In order that the disapproval of an act (and consequently of its author) may have that ideal eft'ect of confirming the morality of those dis- approving, it is necessary that the determination of the act and of its author be as exact as possible. Therefore a punishment inflicted upon a man innocent (or generally believed to be innocent) does not have the moral eft'ect of punishment. Fear can be spread through the venting of rage against innocent people. But where a people is not completely enervated the ultimate effect of this fear will be directed against its author. A just punishment, however, strengthens the position of the legal system. Moreover, it is in harmony with the character of punishment as disapprobation that in countries where there is a high degree of culture and refinement of feeling the trial and condemnation of the criminal constitute a part, and often a very important part, ^ There is even recognized in the German Criminal Code a punish- ment (frequently used in England) which consists entirely in public dis- approval, — reprimand. Hugo INIeyer, § 5, maintains that the essence of reprimand is not disapproval of the act but rather of its author (i.e. thus a mild form of suffering). However, this assertion is in itself a "petitio principii", and if reprimand is not a "humiliation of the offender" only secondarily, then why are all the special forms of humiliation therein eliminated? Why is the pillory not to-day a desirable form of punish- ment ? 506 APPENDIX [§ 104 of the punishment.^" If punishment were necessarily an external evil, there would be no explanation of the fact that in concrete cases the punishment may consist merely of a mone\' fine or a few weeks' imprisonment. The character of punishment, regarded primarily as disapproha- tion of the criminal act (and only secondarily as disapprobation of its author), makes it necessary that the expression of disappro- bation be directly attached to the act itself as portrayed by the trial, — in other words, makes it necessary that the judicial sentence, which is nothing other than the fixing of the act in the minds of the public, substantially specify the punishment. It is contrary to the nature of criminal law to attempt in general to determine the punishment later, after observation of the character of the convict. We would say nothing here of the hypocrisy of prisoners, their unmanly actions, and their deceit of the prison officials. These are unfortunate conditions to which rise is given by the foolish modern moxement (so totally at variance with history) to eliminate from the judicial sentence the fixing of the amount of the punishment, and to allow the duration of the punish- ment to be fixed later, after observation in the prison, or to remain for a time undetermined. As previously stated, the sentence of the criminal court could contain an abstract significance, without having an actual result of a penal nature ; but in this case tlie actual result of the evil act should be affixed i)ublicly and be of general application, — at least it should be fixed independently of anything else. The judicial sentence loses its influence upon the mass of the people when the actual result of the act is connected with something else, i.e. when it depends upon the discretion of prison officials which is not manifest to the public and which can- not be publicly verified. The individual criminal may be reformed, to the heart's desire, but among the masses of the people frime will continue to flourish. However, if the punishment were actually retribution of evil, i.e. of the wickedness of the criminal, then no objection could be raised to first making a long observation of this wickedness, since the deed of the criminal does not afford an ade- quate criterion for its accurate measurement. Furthermore, the punishment of disapprobation can never iu' supplanted by suffering which comes upon the criminal as a matter of chance, even if this is a result of the crime and rcNcais (as they '« This opinion expressed by me in the "Grundhni«' (Us Strafrechts" p. 4, had been advanced by Heinzc, p. 32ü, as slated abo\e. 507 § 104] APPENDIX say) the " hand of God." If a thief })reaking into a house falls from a ladder and as a result of the fall heeomes a eripple for life, we would not for this reason spare him from punishment any more than we would the highwayman who lost an arm or his sight as a result of the vigorous defense of his opponent. If temporal punishment were merely the representative of divine punishment, then in sueh cases it would be presumptuous to desire further punishment. If it were the retribution of evil with evil, then in such cases, to punisli would be senseless. The True Purposes of Punishment. — The essential matter is active disapprovüJ rather than the pain of the criminal. Therefore, whether or not the criminal in the individual case finds the punish- ment an evil makes no difference. He may even regard it as a benefit, — as e.g. perhaps in these times a criminal, who is not com- pletely pernicious, regards with favor the prison which keeps him from further wrongdoing and furnishes him instruction. We should not for this reason change the punishment, so as to cause him suffering. According to Plato's ideal conception, the offender should ahvays regard the punishment as a benefit. If pain were the essential element, why should w^e to-day be so violently op- posed to torment and torture of convicts ? This would be nothing other than a mistaken feeling of humanity, and there would still arise the question whether a short punishment entailing se\'ere physical suffering or even mutilation, where this does not afTect the capacity to earn a living {e.g. cutting off the ears) is not pref- erable to imprisonment lasting for years. The fact that we find nothing repulsive in the physical destruction of the criminal in capital punishment, but are offended with torture and suffering commanded for any other purposes, liks as a matter of fact its deep reason, which none of the previous criminal theories has explained. However, the treatment of the offender must always be expres- sive of disapproval ; and so far, but only so far, it is proper that the punishment should contain a disadvantage for the condemned. Criminals should not constitute a favored and pampered class (this is a consideration which obviously opposes the extreme deductions of the theory of reformation), although other praise- worthy purposes might be better attained through such good treatment. The distinction must always remain, that as a general thing it is preferable not to be punished. A penal institution must never assume the character of an institu- 508 APPENDIX [§ lOÖ tion for instruction. However great may be the attention given to purposes of reformation, and consequently to the individual criminal, this attention is only a secondary one. The primary element is attention to the necessity of public disapproval (or if one prefers so to term it, repression). Thus Krohne '^ states, in regard to the last international Congress for the Improvement of Prisons and the tendencies there observed : " With all the com- passion which is aroused by every human failure, be it moral, mental or physical, the men who to-day are concerned in prison reform are primarily governed by the opinion that the vital ques- tion is the defense of society." As Hälschner and others have correctly stated, punishment is primarily to be conceived as a suffering of the criminal, — as coercion brought to bear upon him, to the extent that the criminal is involuntarily subjected thereto, but not in the sense that he should be tortured. In disapprobation there is an active manifes- tation of the one disapproving. Punishment cannot, as Heinze woukl have it,^- be conceived chiefly as a paymejit by the criminal to the community. If this were so, then voluntary acceptance of the external method of punishment fixed by the State for the case in question would be the most perfect penal atonement. The sui- cide of a person condemned to death, instead of being prevented as is now done, would necessarily be encouraged. Only when the criminal regards himself as a means for furthering the purposes of humanity, and only when he has learned to regard the ])unishinent as rational, can the punishment be conceived as a payment. It is only in this sense that I have previously expressed the opinion that the criminal must undergo retribution. It is with this just as with reformation ; the ideal punishment will reform in fact the offender, but nevertheless the chief purpose of punishment is not reformation.^'^ § 105. Private Vengeance as an Expression of Disapprobation. — We have already remarked that the earliest punishment consisted of a dissolution of the legal tie existing between the injured party (or as the case may be, the community) and the criminal. Accord- " Krohne, "Der gop:onwartif;(> Stand dvr Geftingnisswissenschaft" in Dochnw's and LiszCs "Zoitschrift" (1), ISSl, p. 5S. 1- Heinze, pp. 322 ct aeq. " For the reasons mentioned, voluntary submission to a punishment inflicted by the State is not suRieient. Pulilie disappro\al cannot arrive at expression without a judgment. Therefore, only a very subordinate importance can be assumed by waiver in criininal proccchin». 509 § 105] APPENDIX ingly, if every punishment substituted for this dissolution were a benefit, or as a matter of history the earhest right afforded the criminal, then the statement of Fichte in regard to the citizen's important right to be punished would not be so paradoxical as it seems. The development of punishment by compositions, which we are able to trace in Germanic law, confirms this absolutely. There is an apparent contradiction in the fact that later, and es- pecially to-day, the criminal may not escape punishment by going into exile. But exile later and also to-day has no longer the sig- nificance of the old " Rechtlosigkeit " (deprivation of all rights, outlawry) or (to use the language of the old Xorse or Germanic law) " Friedlosigkeit " (being without the " peace "). This was an entirely difi^erent matter. Disapprobation as a punishment, when inflicted by the indi- vidual, lacks not only (as is obvious) a definite objective amount, but it also lacks a general recognition that the occasion of its in- fliction is a just one. Such a punishment is often very hard to distinguish from a mere unlawful attack ; and it is very easy for the criminal, in order to avail himself of the assistance of others in his own defense, to set up the pretext that the attack upon him is unlawful. Thus private vengeance becomes a standing feud between various families, and the community or the king finds it well to intervene, and out of this intervention there later arises the taking over of this private vengeance by the State. This is furthered by the increasing realization that the legal security or insecurity of one individual involves that of the others. Ven- geance becomes punishment. From disapproval subjectively manifested there arises one of more general recognition. It becomes liberated from its egoistic character, — a liberation that is not merely accidental but which is in accord with the laws of de- velopment.^ Punishment a Right of Society Rather than of the State. — Upon this transfer of the criminal law to the State, there arises, from the right to punish, a duty. That which the individual has heretofore possessed as a right is taken over by the State, as it were, with trustworthy hands — for careful administration and not for arbitrary exercise or neglect. In the hands of the State, this right becomes a duty — a duty not only of the State but also 1 This process of transfer is excellently described and explained by C. L. Von Haller, "Restauration des Staatswissensehaften", II, pp. 241 et seq. (c. 34). 510 APPENDIX [§ 1U.3 of society. It necessarily follows that the State cannot fore^'o punishment at its discretion, as can the individual.- As far as it is able, the State must prosecute actively. It is in the same position as the individual whom custom will not allow to permit the murderer of his kinsman to escape if he has him in his i)o\vcr or to leave to chance or a third party the work of venj^eanc»'. Ivxilc is not a right,'"^ but a mere " de facto " possibility for the iudixidual. With the passing from memory of that original condition in whicji criminal law was a right of the indixidual or possibly of all, the State becomes less able to consider or assume that the mere pri\i- lege of harming the criminal entails for the latter a real conse- quence, even apart from the fact that this inxolves a possibility of degenerating into the old barbarous custom of \cngcance. Desirability of Prosecutions Initiated by Private Parties. — There always remains, however, a certain recollection of the fact that criminal justice was merely transferred'^ to the State, and did not belong to it originally. In a case in which popular opinion regards a private person as primarily concerned in the punishment and the public right of the State as only secondarily concerned, a pardon or dismissal of the case is considered a wrong; e.g. in case of an insult, if some satisfaction has not been privately rendered the injured party or his forgiveness or his consent to the pardon has hot been obtained. It is also well for the State authorities to bear in mind that the criminal law, although in a rather crude form, is older than the State itself, and that it must not be used to further temporary purposes, e.g. that it must not be used or misused per- haps to punish those having one tendency and to spare those having another. If criminal law were in all respects an original attribute of the State, such a course would not be so injurious and demoraliz- ing. The preservation to the public or to the injured party of a possibility of a supplementary prosecution, even against the will of the sovereign or the State, is a very wholesome corrective to that opinion (which may easily arise) that the excellence of the - The individual is often also inuler the not less adiial coercion of morality. ^ That for a Ions time a different condition ol)taincd among tiic Ki)mans has been stated above; l)Ut this is not evidence ajrainst tlif arfriMiicnt in the text, since it was not utdil later that this rifjht of e.xile aro.st-, wlu-n the pride of the Roman citizen no longer allowed an nclii'C exerci.se of the criminal power. * E. \'()n /fnrlmniin, "Phäiiomenol()t,de", p. 202, justly calls atti-ntion to the fact that this i)roc('ss of transfer has by no means comph-tely ended. It is in part upon this that, there depends tlie continu(>d existence of duel- ling in spite of the criminal laws. 511 § 105] APPENDIX l)arty in power can offset minor breaches of the criminal law which become intolerable when rei)eate(l. As the eminent French jurist, Faustin Ilelie,'^ has stated: criminal prosecution rests partly with the community and not exclusively with the State. The supplementary complaint instituted by a private citizen is (if guarded with sufficient precautions) a proposition justifiable from the viewpoints both of history and of logic. In the case of grave violations of the duty to punish crime, the idea that this despotic power of the criminal authorities injures society manifests itself in an elementary way in lynch law and acts of violence. This also has a bearing upon the fact that legis- lation in criminal matters must not depart too far from popular sentiment, and that in criminal legislation there may be seen a direct reflection of the civilization of the people. The objection can always be raised — and in fact has been raised — that disapprobation contains nothing that makes its lyradical application necessary — at least not in the form of crim- inal procedure, and even less in the actual infliction of the punish- ment. If only disapprobation were involved, one might in legis- lation go no farther than to set up general principles which would disapprove of one act or another. However, in this objection it has been overlooked that there would be no recognizable inclusion of the act under these general conceptions or principles. It is the vengeance of the injured party, the punishment inflicted by the State, which first declares that this concrete act deserves dis- approval and is absolutely reprehensible. This immediately becomes clear if one considers that there may be various grounds of extenuation for acts wdiich possess the external elements of crime. A concrete act does not actually become a crime until this character is, as it were, stamped upon it by judicial decision. The reason why one at the present time is able to conceive that a judicial decree is not necessary in order for certain acts {e.g. ag- gravated cases of murder, etc.) to be regarded as crimes by the public at large, is that one forgets the long tradition of judicial decrees which obtains as a decision for the individual case in ad- vance of the actual decision. It would soon become otherwise if the giving of judicial decisions concerning individual criminal cases should be generally discontinued. To become convinced of 5 "Traite de rinstruction criminelle", II, n. 473. The French Court of Cassation has also stated: "L'aetion publique appartient ä la soeiete et non au fonctionnaire public charge par la loi de I'exercer." 512 APPENDIX [§ 106 this, it is only necessary to consider how falsely in the absence of established rules and regulations, the general public would decide as to the questions of responsibility and the special circumstances of extenuation (coercion, error, necessity, etc.). § 106. Summary. — Summing up the foregoing statements, the purpose of criminal law is as follows : " Certain fundamental principles of morality should be publicly and notoriously character- ized by the civil community as inviolable by attaching to actions which are contrary to these principles an impressive mark of disapprobation. This mark also necessarily aft'ects the author of the action, since a deed and its author cannot be contemplated separately. This is simply a result of the fact that the civil com- munity is obliged to give practical recognition to the fundamental maxims of morality." The Idea of Disapprobation Expressed by Other Writers. — The foregoing is not very different from the recent statement of my honored friend, Hugo ]\Ieyer. lie, however, is unable to free him- self completely from the traditional view that the scope of criminal law and the amount of the punishment should nls-o be derixed to a certain extent from absolute justice. For this reason he often speaks of retribution and conceives punishment in the sense of Hugo Grotius as " malum passionis ob malum actionis." ^ His words are as follows : " The legal basis of punishment consists simply in this : It results from the very nature of the State that in cases of necessity it give expression to the inadmissibility of actions prejudicial to the civil community by the infliction of punishment." The statement of ]Montesquieu - also amounts to the idea of disapprobation, where he says that in the State which corresponds to his ideal, " La plus grande peine d'une mauvaise action sera d'en etre convaincu." The statement of the great Leibnitz (given above) also exjiresscs the idea tliat ex- clusion from the community, a thing resulting from disapproba- tion, is the ideal essence of punishment.' 1 " Lehrbuch des deutsehen Strafrechts" (3d Ed., ISSl). § 2. p. •). 2 "Esprit des lois", VI. Ch. 9. Cf. also eh. 21 : ". . . les fortnaht^s des jugements y soiit des punitions." That disapprobation and an arti- ficial "infamie" are something different, scarcely needs to be assi-rtod. 3 The profound and eminently practical Fnincia Lieber (Franz Lieber) also savs (in his article "On Penal Law", printt'd in his " Miscelhuieous Writings" (Philadelphia, 18S1), II. pp. 4(i4-4<)4. esp. p. 47S) : 'W soei.-ty in which every sort of wrong might be permitted with impunity would necessarily lose its ethical character. . . . The expressit)n of puhUe disap- proval would be missing." Cf. also the very recent system of " Hechts- 513 § lOG] APPENDIX As soon as the purpose of i)uiiisliment Is no longer direc-tefl towards the person of the eriniinal, hut ratlier society or the community is regarded as that which is aided or protected by the punishment, and the criminal is regarded merely as something incidental — which he certainly is, as contrasted to the community — this theory necessarily gains favor. The theory of reformation treats the criminal as the chief goal towards which the purpose of punisliment is aimed. It is the same with the theory of retribu- tion. According to the latter, the criminal should receive the desert of his acts in the punishment. The deterrence theory is the only one which harmonizes w'ith our view in regarding society, and not the criminal, as the chief issue. But, on one hand, it takes too mechanical and base a view of the relation between the criminal and society, and on the other hand it pays too little attention to history. It is quite proper, however, (as Hugo INIeyer also maintains) to ascribe the first place among the relative theories to the purpose of deterrence (or, as we prefer to say, of turning away) the public from crime. Criminal legislation which, in respect to its means of punishment, is based upon the deterrent theory, is at any rate, as history shows, capable of existing; but legislation which is based ex- clusively and consistently upon the theory of reformation would soon render itself impossible. IMoreover, credence may not be given (as is done by the theory of deterrence in its too base conception of the purpose of criminal law) to the belief that the criminal law has its chief effect upon the criminal world or those who are irresistibly disposed to crime because of evil training, degeneracy, etc. ; or that passion which has become strong and overwhelming can be held in check through the existence and operation of a criminal statute. In this respect the objections to the deterrent theory are rather well taken. Fear of an indefinite although severe future evil can but seldom counteract the impulse to crime. Therefore, it is a great mistake, in times when grave crimes are p^e^•alent, to expect any very im- portant result from liberal use of capital punishment, flogging, etc. The history of the 1700 s illustrates the result of a harsh Philosophie" by Lasson, 1881 (especially p. 533, § 46), where punishment is designated as the \netory of reason over its opposite. Yet in Lasson, punishment rather uncertainly shifts to retribution, since apparently the amount of punishment is to be derived from absolute justice. Lasson, moreover, as is usual w'ith most philosophers, treats the subject at long distance and with, only a bird's-ej'e view. 514 APPENDIX [§ lOß criminal system destructive of sentiment. Tlie truth is rather as correctly pointed out by Schopenhauer, with that clearness of vision which he displays in so many particulars. He says that perhaps the chief effect of criminal legislation is that, upon the whole, it preserves the morality of the better elements of the people; that true criminal punishment is that which brings about " exclusion from the great freemasonry of honorable people," ^ and that public opinion judges a single misstep with great and perhaps too relentless severity.' Kinds and Methods of Punishment. — For these reasons, as the criminal statistics of various countries show, it makes no very considerable difference, in respect to the more heinous crimes, whether, icitliin certain, limits, the penalties are administered in one manner or in another. But on the other hand, in respect to the less heinous cases, blunders of legislation are far more important. If here the proper distinction between honorable actions and disiionorable actions is not drawn, and if e.g. persons who are generally respected but who have failed to comply with some mere regulation of the State, — perhaps even from considerations of conscience — are treated as common criminals, one cannot help wondering if in such a case an axe is not laid at the root of morality and the legal system, and if the echo of its stroke is interpreted in the criminal world as showing that no very essential difference exists between honorable people and itself.^ Therefore, legislation in dealing with offenses against mere police regulations should be more sparing with those penalties of imprisonment with which it is now so liberal, at least as alternative punishments (at the discretion of the judge).^ As quite correctly stated by Von Ihering, " It is not disobedience but rather attack upon the conditions of the life of society which constitutes the essence of crime. Therefore, wh(Tc the ciu(v>ti()ii * Punishmont for violation of polico rofjulrition is taken up later. 5 "Grundi)r()l)lerne der Ethik" (2 Ed., pp. 100, 187). Lieber (p. 470) says that in>^ccurily is not the worst evil resulting; from frequeiU non- punishment of grave crimes, or as we would add, actions deserving l)tinish- ment, l)Ut rather the general lowering of the moral standard. For this reason, although not for this reason exclusively, the certainty of punisli- ment is more important tlian its amount. The fact that a tiling trill ho punished is more important tlian how it will be punished. Naturally this principle must be taken "cum grano salis." •■' For this reason that system of tutelage which is now so popular and which requires coercion, i.e. requires punisiiment, isultimatelv demoralizing. ^ "Der Zweck im Rechte". 1 (1S79), p. 4SI. Cf. also Schulze. "Leit- faden der Entwicklung der i)liilosopiiischen Principien des bürgerlichen und peinlichen Rechts" (1813), \). 2.')9. 515 § lOGl APPENDIX is merely to overcome disol)e(lience, only those punishments should be employed which, to the greatest degree, render impossible the confusion of such a case with cases of punishment for crime." Lieber ^ directly opposes this conception of disobedience. " One should avoid any appearance of punishing as if for the reason that the transgression or offender has ventured to be disobedient. In other words, punishment is inflicted because the authorities represent the purpose of the common good, and therefore dis- obedience to the authorities is an offense, i.e. is immoral." According to the foregoing argument, anything which entails a disadvantage for the party to be punished is " in abstracto " applicable as a means of punishment. For every disadvantage done to the author of an act, on account of the act, expresses a disapprobation of the same, and that which is taken or diminished is merely something which is generally regarded as a gift of the legal system, — since the right, in case of extremity, extends even to destruction of the criminal. However, the most perfect kind of punislmient is that by which the criminal himself is brought to disapprove of the act that has been done, inwardly renounces it, and is reformed. Here the objective disapprobation of the act becomes a subjective one. But it always remains as the essential element,^ on account of the primarily objective character of dis- approbation, that public opinion should regard the action usually taken as a sufficient disapprobation, and that not too much consid- eration be paid to the personality of the individual criminal. By the last mentioned consideration, justice incurs the danger of losing- its supremacy, certainty and dignity, and of degenerating into a system of physical suffering and breaking of the will, which serves as a basis for niunerous blunders. Punislmients invohing physical suffering which bear the stamp of a seeking after indi\-idual ven- geance are at variance with quiet and deliberate disapprobation through the public authorities. The same is the case with punish- ments which are usually applied to animals, since disapprobation has meaning only as against the acts of rational beings and it is necessary that the expression of such disapprobation be retained. The same objections may be raised to punislmients which are so 8 Lieber (Note 27, ante), p. 493. ^ Therefore it is no objection to a method of punishment that certain individuals of a type still existing do not regard it as a punishment, as a murderer must be sentenced to death, if the law prescribes capital punish- ment for murder, although he committed the murder from weariness of life so as to die on the scaffold. The State in punishing may not accom- modate itself too much to the criminal. 516 APPENDIX [§ 1(17 excessive as to immediately arouse pity, because pity dispels disapprobation. This also applies to punishments which are ap- propriate only under quite exceptional circumstances. This last objection, together with others, may be raised to punishment by flogging which is now so popular. On the other hand punish- ment by deprivation of property is not objectionable merely be- cause one individual feels it but little or because, in the case of others who have no means of paying, it must be changed into some other penalt}'. For both reasons, however, it cannot represent the higher and sharper degree of disapprobation. That capital punishment is not absolutely improper follows directly from the original right of destruction. But whether it is relatively improper, i.e. improper for a given period of time and a certain stage of culture, is quite a different question, for it is by no means an ab- solute requirement of ethics. The means of punishment is, as we have already remarked, a part of the question of the amount of the punishment, and that this is dependent upon time and cir- cumstances is ob\'iously manifest. § 107. The Degree of Punishment. — But if, as according to our view, the criminal is placed at the absolute disposal of the community, so far as concerns the expression of its disapproba- tion, what becomes of that justice which we feel is requisite in the fixing of the degree or amount of the punishment ? The answer to this question is simple. This justice appears only by considering the historical element in criminal law. It has nothing to do with the basis of criminal law. Punishment and crime {i.e. immoral acts detrimental to the conditions upon which depend the life of society and therewith the life of the State) are not commensurable. If they were commensurable, then the theory of retribution would be tenable, at any rate theoretically, if not practically. For example, how can one balance the larcenous taking of a purse with a year's imprisonment? And even in the death penalty — the favorite example to adduce — the balance is very imperfect, at least in many cases. If a murderer lies in wait for his victim and by a single well-directed blow strikes him dead, is such a death physically equal to the death on the scaffold with the mental tortures of a long period of expectation? We must cease to speak of the justice of punishments, unless we either cease to punish many cases now punished or unconsciously measure out the punishment in accordance with historical tradition. Criminal law is no more able to estimate crimes than the govern- 517 § 107] APPENDIX mental authorities are able to place an absolute value on property and industry. But there is always a justness in treating like matters in a similar manner or in like matters producing a like result. x\nd so in criminal punishments it is tradition which furnishes the justness. While the valuation of the degree of criminality is primarily arbitrary, yet tradition allows considerable room for the exercise of discretion. No one can say (unless he refers to the very de- tailed provisions of a definite statute) whether, for a certain crime, two and one half or three years in prison should be the proper penalty. Nothing can be said as to absolute justice or injustice in regard to the question of solitary confinement or ordinär}' con- finement for a prisoner or his employment at one task or another. Within this rather extensive province the State is given a free hand, since the administration of justice should be made to serve the welfare of the public and to pursue freely purposes beneficial to the community. Herein good results may be obtained from the purpose of turning the criminal into a useful member of society. § 108. What Acts should be Punished. — From the principle of disapprobation which we have adopted, it follows that it is only in certain grave violations of morality that the voice of public disapproval is given general manifestation ; it does not follow that this disapproval extends to every violation of morality. The State is not the blind instrument of an absolute principle. It does not adopt the maxim : " Fiat justitia pereat mundus ", but rather the principle that justice prevails that thereby the world may continue to exist.^ Our principle is absolute only in the sense first mentioned. As the individual may have reasons to be sparing of his moral judgments, so is it even to a greater degree with the State. The disapproval of the State is an authoritative one. On one hand it presupposes the utmost precision and certainty in the judgment of the act, and on the other hand it is conclusive as against the in- dividual. For this latter reason this disapproval must extend only 1 Herein the principle adopted differs very essentially from all tlie absolute principles heretofore advanced, in which it is quite inipossible to preserve room for a discussion of purposes of expediency ^vithout a breach of logic. Even Hegel does not seem to have understood this point. It is in this sense that I have stated that punishment is a designed and artificial measure for the individual case ("Grundlagen", p. 9). Heinze (p. 298, note), who indeed recognizes a reprobation theory as a logical development of Hegel's principle, has therefore misunderstood me, since he seems to regard this "designed and artificial measure" as a devia- tion from the absolute principle of punishment. 518 APPENDIX [§ 108 to a relatively small number of acts. Otherwise it will eliminate the freedom of the individual, and in so doin«:; destroy the source of morality and of voluntary devotion. At tiie same time it would destroy that moderate and proper ejjoism which ultimately operates for the good of all and is a mighty impetus towards human prog- ress. Naturally this disapproval should extend preferably towards acts which violate the rights of others, — this is in accordance with the historical origin of the criminal law of the State in the vengeance of the individual. Acts whose disadvantageous results almost exclusively or even generally fall upon the author of the act are not the objects of the disapproval of the State, although they have a remote effect upon the interest of others and of the public at large. This is also in accord with many practical reasons, such as diffi- culty of determining the questions of fact, of guilt, the imperfect equipment of the public for the discovery of the act, etc. Since the disapprobation of the State entails a disadvantage for the party toward whom it is directed, and since it always (in criminal procedure) operates by virtue of numerous means of coercion and entails much expense, or at least loss of time to the parties concerned, and since it imposes a very severe temporary evil even upon innocent suspects — e.g. imprisonment, temporary loss of reputation, — it is always an evil in itself. Where unlawful or immoral acts find a sufficient disapproval in some other way or fail to attain the intended result (particularly because of the milder remedies of private law), it is reasonable and indeed necessary that the punishments of the State be dispensed with. The Principle of Parsimony in Punishment. — The aspect of criminal law from the viewpoint of national economy is important. In former times human unhaj^piness and pain were s{|uandered lavishly. Beccaria is entitled to credit for having first brought to attention comprehensively - the principle of the greatest possible parsimony with penalties and the superfluity of many punish- ments. Where other means are efi'ective for the realizati«>n of the law the use of punishment is inexcusable, since, as correctly stated by Von Ihering,^ it recoils upon society. Thibaut ' indeed - This phase of tlie subjeft finds ob\-ious applifation to the means an«! the amount of punishment. Cf. WdhUn-rg, "C'riminalistisclie und national- ökonomische Gesichtspunkte mit Hücksicht auf das deutsche Reichs- strafrecht" (1872), pp. 96 cl xc(i. 3 "Der Zweck im Rechte", 1, p. 477; cj. p. 362. ^ "Beiträge zur Kritik der F'euerhach'schen Theorie" (1802), p. 103. 519 § 108] APPENDIX called the criminal law a " testimonium paupertatis " which the authorities of the State exhibit. We would at least assert that every new criminal statute is a certificate of poverty for the moral condition of society. The disapprobation of the State is the artificial and organized disapproval of an act and is necessary only when there is not sufficient spontaneous disapproval on the part of unorganized society.^ Consideration should also be given to tradition or history. There is no more an absolute principle of justice for the choice of the acts for which punishment is to be inflicted, than there is for determining the means of punishment. There exists, however, a relative principle of justice, in the sense that acts which possess the same elements of immoral or detrimental significance may not be given different treatment, and that the State may not act in- consistently with the history of the people in respect to the choice of acts to be punished. Inconsistent action of this character creates the opinion that criminal justice is not the result of an inevitable necessity but rather of despotic action and possibly of error, and that it is not the expression of moral disapprobation, since moral opinions change very slowly. There are, to be sure, perverse traditions, just as there are perverted formations of physical being. But they can be recognized, if one survey long periods of the life of the people, and of their history, or if one is sufficiently un- prejudiced to study closely the instructive example of the legal life of other peoples. Moreover, the significance of an act can vary with time and circumstances. And with individuals who are advanced in years, so with peoples having an old and well-es- tablished culture, general theories have but little influence upon practical action, which is already governed by detailed provisions regarded as fixed and inviolable. Perverted philosophical doctrines, pessimism, or extreme religious principles (e.g. the infallibility of the Pope), are not nearly so dangerous to-day as they would have been a few centuries ago or during the ^Middle Ages. Punishments which do not possess a certain connection with tradition are somewhat odious, even when emanating from the spirit of weU-intended moral reform. This is quite natural, as the people regard punishment as merely an echo of their own dis- approval. Such acts appear to be merely acts of despotism and 5 Von Ihering, pp. 478, 479, pertinently points out that e.g. in busi- ness, dishonestj^ may become so great that it cannot be counteracted by civil remedies without great injury to the communit3^ 520 APPENDIX f§ 108 undermine the effectiveness of criminal justice in other cases. Too many punishments create indifference. One must not imagine that every coarse or vulgar act, every little violation of right, may demand suppression by punishment. The State, like the individ- ual, must learn to endure many minor iniquities ; it must re- member that the world will not immediately come to an end and that Nature has guarded against the trees growing up to the sky, and it must have confidence in the firmness of its own position and in the natural effective power of moral opinions. Where there is a progressive increase of penal statutes, or where upon every occasion the public raises a general cry to help something by penal statutes or to increase the se\-erity of the penal statutes, it is not well for freedom. For every penal statute is really one more in- road upon freedom. And the ultimate results may well be felt most keenly by those who have been the most noisy in demanding it. One may well ponder the maxim of Tacitus : " Pessima res- publica, plurimffi leges." ^ Expediency and Justice in Punishment. — While, upon our theory, the choice of acts to be punished by the State is determined by numerous reasons of expediency, yet there is here no antagonism between expediency and justice. It is rather that, from the stand- point of the State, expediency is at the same time justice. How- ever, an act of which the moral sense of the people does not dis- approve should not be punished. Practically speaking, this is an acceptance of the viewpoint adopted by Rossi and Mittermaier, where they seek to limit absolute justice by reasons of exj)ediency, a correct standpoint and therefore a favorite of legislative proposals and legislative assemblies. But theoretically it is erroneous to weld together in such a manner absolute justice or retribution " Thibaut, "Beiträge zur Kritik der Feuerbach'sehen Theorie" (p. 100), says that the ruler does not stand so high and is not the representative of God upon the earth in the sense that he can enact eriniinal statutes in eontlif't with the sentiments of his subjects. To punish in viohition of prevailing opinion is not conferring a lienefit but rather is inflicting a punishment upon the nation. This matter is no longer an issue in con- stitutional States, but nevertheless temporary opinions and disturl>ances can be utilized to extort the approval of the representatives of the people to perverted criminal statutes in violation of tiie spirit <)f history and the entire legal system. A notable e.xample of the opposite kind — resist- ance of temporary opinion ■ — was furnished on Oct. 2(). ISSO. by the Minister of Justice of Holland. Modderniann, when in a long argument he undertook to disprove the alleged reasons for tlu> rcestablishnient of the death penaltv. Cf. the translation of this argument in the "• Münch- ener kritische Vierteljahrsschrift für Gesetzgebung und Rechtswissen- schaft" (1881), Vol. 23, pp. 9ü d seq. 521 § 108] APPENDIX and expediency. The State does not exercise absolute justice ; " it exercises merely relative justice, and such it does when it defines the various cases to which the rigid principle of organized public disapprobation shall apply or shall not apply, in pursuance of purposes of expediency which for all of these cases are the same. It is not a departure from justice for purposes of expediency, but rather genuine and exact justice, when the State inflicts a lesser degree of punishment for an attempt at a crime than for the con- summated crime, or when it pays so much attention to the outcome in a question of punishment, or when it does not punish a shameful seduction but does punish an act of violence which is possibly not so immoral, or when much refined dishonesty in business matters is ignored but he who steals a sausage from the market is haled before the criminal judge. The fact is simply that the State (the law) measures illegal or immoral intention to a certain extent by external result. This same principle leads to the ignoring of that will which does not manifest itself in some external action that may be definitely rec- ognized (" Cogitationis poenam nemo patitur ! ") ; and it ulti- mately orders that less punishment be inflicted for the attempt than for the consummated act. Furthermore, this regard for a safe criterion of application, and one excluding despotism and purely individual opinion, also leads to the use of a somewhat rigid moral criterion, which is not sufficiently pliant to permit of its being applied to many relations which the individual at least believes can be passed upon judicially. The morality applied by the State in criminal law is somewhat crude. However, its gradual refinement in the course of time is not precluded. In- ^ I am unable to concur in the attempts recently made by Hugo Meyer ("Die Gerechtigkeit im Strafrecht", "Gerichtssaal", 1881, pp. 101-153 and pp. lGl-188 ; also published separately) to separate justice and utility or expediency in criminal law. This merely is a result of Meyer's conception of punishment as an act of retribution. A consistent use of the process of separation employed by ]\Ieyer would show that ultimately practically nothing is left for justice (even the justice of the "Cogitationis poenam nemo cogitur" tends to disappear), or that the just pro\dsions proposed by Meyer rest just as much on grounds of ex- pediency as those which lie places in the di^^sion of expediency. The practical result of Hugo Meyer's \aew would be a tendency to extend the criminal law to many acts not now punishable. For the justice — i.e. according to Meyer, if one closely consider the inner immorality — is upon first glance the same in many acts not now punishable or only lightly punished as in many which are punishable and punished severely. This questionable tendency is also very prominent in Hugo ^Meyer's treatise. In opposition to Meyer, cf. Merkel, "Zeitschrift für die ges. Straf rechtswissenschaft", 1881, pp. 5Ö6-558. 522 APPENDIX [§ 108 deed, this appears decidedly possible if we compare the early Ger- manic criminal law with that of the present time. But mora lit \' in its narrower sense also advances and becomes more and more refined, at the same time that the coercive morality of the State progresses ; and so, for immeasurable ages, the ditVerence between them continues, and the application of principles to matters of detail in the fixing of the boundaries between them must always be attended with doubt and controxersy. Criminal Law and Morality in its Narrower Sense. — The fact that the morality of the State in its form and operation as criminal law is, as it were, a net of coarse mesh, has indeed one advantage, viz. that it can be relied upon with more certainty than that more discriminating moral judgment which the individual is in a posi- tion to pass (or believes that he is). But this character of the State's morality, together with the fact that the State, not being infallible, sometimes enacts radically erroneous penal measures, makes it possible for a criminal law to come into conflict with the moral sense of the individual and even of the entire population.** For these reasons, furthermore, it is possible that an act which is contrary to the criminal law may appear to be permissible (or even commanded) by a free moral judgment which is independent of the rule expressed in positi\'e law.^ 8 But such conflicts are frequently based upon an illusion. Epoisni, which will not bring itself into accord Avith general morality, flatters itself with the idea that its condition or its case requires an e.xtraordinary decision. 8 With this and with his statements previously referred to, lIn(jo Meyers ("Lehrbuch", § 4) objection that in regard to no act could it be said in advance that it is immoral is refuted. 1 believe if this cannot be said in advance, it cannot be said afterwards. The only reason fur which a judgment according to the fundamental principles of morality must be omitted is that the exact circumstances of the act, subjective and objective, are not known. It cannot be perceived why the iina-rinatiDU is not sufficiently able to portray the act in advance. For example, did there not take place in Rome many acts which are in conflift with tho moral sentiments of one reading of them? Morality is not such an in- dividual matter, as Hugo Meyer believes. If so, it would be unfortunate for the social life of mankind and for human dc'velopment. The question may also be asked, what basis can there be, other than morality, upon whi'chtMeyer founds his retributing justice. He rejects the derivation of criminallaw solely from purposes of expediency. P(T- haps Meyer's view has been iufluciiced I>y th(> ingenious «-ssay of Kiimelin which he cites ("Ueber die Idee der dereclitigkeit ") in Hiinnlin, "Reden und Aufsätze", II, ISSl. pp. 17<)-'202). Here retribution i.s expressly made the basis of the criminal law, but in a peculiar manner, for this conclusion is not derived from the premise of moral retribiilKui, but from the idea of equalitv. According to this tiie most rigorous retalia- tion in kind ("taUo") woiild constitute the spirit of the criminal law But even this principle of justiflcation cannot be completely separated 523 § 108] APPENDIX But all this is merely an exception due to the general imperfec- tion of human afi'airs. It is by no means a ground of objection to the doctrine which sees the crime as immoral action. Furthermore, when considered closely, it comes to the same thing, whether we say (as above) : " Crime is an action at variance with morality — an action which the State, since the act seems especially burdensome (or disadvantageous) to the general welfare, feels itself obliged to subject to special disapproval ", or whether we say (with Von Ihering) ^"^ : " Crime is an endangering of the conditions upon which depend the life of society, declared to be such by the State ", or whether w^e say (with Hugo IMeyer) : " Crimes are acts threatened with punishment by the State and which are at variance with the conditions upon which the community and its progress depend." The apparent difference rests only in that error which has long since been laid to rest by modern philosophy, but which frequently stalks forth among the jurists, viz. : that morality is something purely individual and that each one makes for himself his own conscience. Morality and conscience are products of the development of the human race for a thousand years, — products which, like law, show different phases of development at different periods. The act that is contrary to morality is simply an act which, according to the opinions at the time prevailing among the people in ques- tion, is more or less out of harmony with or in contradiction to the ultimate goal of man, his progress and the conditions of his existence. § 109. Tort and Crime. — The distinction between civil wrongs (i.e. torts) and wrongs punishable criminally is now apparent. A civil wrong represents a condition at variance with a right re- gardless of whether it is founded upon an action contrary to morality. Wrong punishable criminally is an act specially characterized as being contrary to morality; and it is generally from morality, as Rümelin admits (p. 192). ("Forgiveness of injuries suffered may be favored by religion and morality", but it can never be a principle of a legal system since it would make wrongdoers the lords of society.") But Rümelin's principle is completely untenable, from the historical standpoint. The "talio" has never been a fundamental prin- ciple of the criminal law, but only a principle tending towards moderation. It may also be asked whether this idea of equality, which closely regarded, is merely an idea of relative evils, has any claim to preservation. In the statement of Rümelin above quoted, the idea of deterrence, otherwise only incidentally observed, creeps in, since punishment, i.e. not forgiving, is justified bj' the remark that otherwise the WTongdoers would become the lords of society. 10 "Der Zweck im Rechte", I, pp. 480, 481. 524 APPENDIX [§ 109 but not necessarily a violation or at least a jeopardizing of a sub- jective right.' It is not possible " a priori " to go further in fixing the distinction between civil wrongs and wrongs punishable criminally, since, according to the premises, the conception of crime can not " a priori " be completely determined for a definite positive law and a definite period of time. Hegel's Distinction. — Especially is it incorrect to hold with Hegel that the distinction consists in crime being intentional wrong and in tort being unintentional or innocent wrong. The positive law shows us that there are acts of negligence which are j)unished criminally, and that on the other hand there are cases of wrong com- mitted quite intentionally which nevertheless remain merely t(»rts ; for example, when a person, openly and with knowledge of its illegality, but without other violence to person or thing occupies a piece of ground belonging, to another, or when one shamelessly refuses to discharge an obligation of debt unequivocally entered into. It is not proper to regard these instances as errors of the law ; nor to maintain, that negligence should be completely eliminated from the province of criminal law and that every inten- tional wrong should incur the reaction of the criminal law. The importance for the civil community of an intentional act of the individual is not to be measured solely by whether or not it is the direct cause of an action, of a result which the State disapproves. Rather (and most essentially) it is to be measured in accordance with the rights and interests which it objectively violates or jeopardizes. There is no impropriety in speaking of " minor > The applicability of the idea of damages is. in si)ite of all positivo law, denied by Ed. Hertz, "Das Unrecht und seinen Formen", I. pp. 72 el seq. But Hertz's argument is defective. It is based upon a confusion of the absolute standpoint Avith the standpoint of the limited human iniderstanding, which is the only possible one for the criminal law. limeine deutsche Strafreeht". I, pp. A'-i , § 1. Ill, ;i. ^''''Das Civilunrecht und sein(> Folgen" (Wien, 1S70). Ifii/sslrr, p. 15, correctly says: "The essential ("lenient in tort is tiu- material injury to a material legal condition. Without this there is no tort. Intention has according to this conception m(>rely an incidental (qualifying) sig- nificance. The essential (>lement in crime is guilt. — the tracing of tlu> act to the will as its original source. Witliout tliis there is no crime." This had previously ("Grundlagen", p. 44) heen stated hy me, and further- more I maintained that criminal justice must use (he guilty will as a foundation, while civil justice does not require it (l)Ut under some cir- cumstances it may). The criticism made by Hiysslrr, p. 11, not«- <1 upon my "Grundlagen des Strafrechts " tiiat it was to bo distiuguislu-d from 531 § 1091 APPENDIX and ßiiulins -° are thus quite correet in seeking to eliminate guilt from the private law based on the obligation to indemnify, so as to treat this excluded element of unlawful action as the foundation of amenability to punishment. Both writers have the possibility of the correct view. This is so in respect to Heyssler, since he will not acknowledge for the distinction between private wrong and punishable wrong the basis of expediency but rather prefers aprioristic and abstract distinguishing charac- teristics.^^ Binding believes that guilt may })e established ex- clusively as an element of an offense and not as a possible basis of a duty to indemnify. On one hand, the aprioristic basis ad- vanced by Heyssler is not satisfactory, and on the other hand })rivate wrong is too narrowly conceived as a consequence of human action. But in respect to its effect the conception of action (i.e. as of operation in the external world) can not be separated from the conception of guilt. So Heyssler finally becomes involved in the contradictory and completely incomprehensible maxim : " Guilt for which one is responsible is an offense, guilty private WTong is wrong possessing guilt, but not guilt for which one is responsible." " Binding, on the contrary, while he maintains that private law has nothing to do with guilt, arrives at the strange principle that the private law duty of indemnification has its basis in a quasi- contract, a negligent or fraudulent " negotiorum gestio." -^ A simple, unartificial and correct opinion would say that the duty to indemnify in a private wTong, e.g. in a personal injury caused by negligence -^ that is perhaps not punishable, arises without regard that quoted above only upon close observation because it belongs to those theories, which "merely furnish personal satisfaction to their author", does not seem to have been avoided by Heyssler himself. A more recent attack bv Hevssler upon Binding's theory {Griinhufs "Zeitschrift für das Privat- imd öflfenthche Recht" (1879), pp. 357 et seq.) may upon the whole be concurred in. 20 "Normen", I, pp. 142 et seq., 172 et seq. -'■ This was done for the civil law in a very artificial manner in "Be- streitbarkeit der rechtlichen Qualification der That und Xegativität des rechtswidrigen Thatbestandes", pp. 22 et seq., and thereby (without any proof) it was asserted that all development of civilization of the present time rested upon this basis. 22 Cf. in opposition to this complete contradiction, Binding, "Nor- men", I, p. 233, and Hälschner, p. 418. 23 "Normen", I, pp. 222. 223. Incidentally Binding desires to show that what I stated in my "Grundlagen des Strafrechts" pp. 41, 42 as to "Schadensersatz" and "Schadenstragung", which he so haltingly con- demned, corresponds with what he on page 227 said as to " Sehadenstra- gimg." Here even the words are identical. -* Hälschner, in opposition to Binding, observes that the latter's quasi-contract theory contains a contradiction scarcely less marked than 532 APPENDIX [§ 109 to the concrete intention or generally against the concrete inten- tion of the party bound to indemnify, just as punishment attaches itself in punishable wrong without regard to the intention of him who commits the wrong. But this last problem, the derivation of the duty to indemnify from guilt, exists, as previously stated, only for a theory which rejects the direct derivation of criminal law from morality and therefore, for good or evil, must found the cixil sanc- tion at the beginning of the investigation, since it conceives punish- able wrong as " injury of legal rights." In a theory which founds criminal law directly upon morality, the ci\'il sanction receives attention simply as a " factum ", a " factum " which may have the possible consequence that the State may omit punishment. § 110. Violations of Police Reflations. The Three Types. — It yet remains to explain from our standpoint the so-called " police offenses " {i.e. violations of police regulations). This is a simple matter. We previously stated that not only the actual damaging but also even the placing in jeopardy of an object of a right or of a legal relation, could constitute an immoral act amenable to the criminal law. Now it is quite possible that this placing in jeopardy of a right is not that which is foremost in the mind of the party committing the act. He may be aiming at some ulterior result or course of action. Nevertheless in most or many of the cases his conduct involves danger, e.g. smoking a cigar in the vicinity of explosives entails danger of an explosion. This must be realized by the individual himself upon more careful consideration. There- fore it involves an endangering (of others or their rights) by negligence ; and this can always be characterized as an immoral act (although of minor degree), and thus with complete justice subjected to punishment. To be sure, as a general rule, in such does Heyssler's principle stated above, since according to Binding the same act is viewed by the civil judge as a lawful act giving rise to a legal obligation and is viewed by the criminal judge as an act contrary to law and subject to punishment. But Hälschner, whose latest treatise is very decidedly influenced by the "Xormcntheorie" ("Gem. deutsches Straf- recht", p. 21), founds the obligation to pay damages in a manner not differing \videly from a quasi-contract, since he sees in the injury of an- other {i.e. of his property) a "permit to make use of one's own property." Naturally Hälschner provides that the one doing tlie injury is not required to have this intention "in concreto." But the law attributes to his act the "equivalent" of such an intention. More simply stated the principle is that the law, since it does not pay attention to the actual intention, compulsorily attaches to the act the result that compensation must bo rendered. Hälschner here simply repeats the old error tliat the thing which (on other grounds) is reasonable is always desired by the party suffering thereby. According to this logic, the individual condemned to death always desires to be executed. 533 § llOj APPENDIX cases the authorities should have designated tlie act in question as possessing this dangerous character. The immoral nature of the :act is so remote that it should be expressly so declared to the in- dividual. Furthermore, it is necessary to a certain extent and under certain conditions that the individual make some sacrifices in the interests of the public at large, i.e. that there be some positive contribution on his part. If this performance is not rendered as due, then this constitutes an immoral act, pro^'i(le(l however, that the necessity of such a special performance should have been clearly announced, i.e. that it be determined by the authorities to whom the com- munity has entrusted the maintenance of such general interests. In conclusion, it is possible that, because of their very insignifi- cance, actual violations of right assume a different character. There is something dift'erent in unlawfully picking up an apple and eating it and in stealing a gold coin. The smallest violation of a right is also an immoral act ; but to a certain extent it can be placed on a plane with those acts whose immorality, as shown above, only becomes manifest in some more indirect manner. The circle of the so-called " violations of police regulations " (" Polizeivergehen ") may be closed with these three varieties, viz. : actions that involve danger ; the not doing of that which one is bound to do {e.g. giving information or a report to the authorities is such a duty, although perhaps not one upon which there can be placed a money value) ; and violations of right that are quite in- significant. The true basis of the propriety of punishment here lies in the immoral character of the act. For this to become obvious, one has only to consider that the preservation of a certain external good order, ^ because of its substantial importance, may be regarded as the equivalent of a moral principle. For it is upon this external order that well-ordered human intercourse depends, and thus it contributes to the progress and development of humanity. It may indeed appear to have nothing to do with morality whether one goes to the left or to the right on a bridge. Yet on account of ^ Many excellent remarks as to this are contained in E. Von Hart- mattn's "Phänomenologie des sittlichen Bewusstseins", pp. 485 et seq.: *'Das Moralprincip der Ordnung." L. Von Stein, "Verwaltungslehre" <1867), IV, p. 36, says: "If that which the pohee regulation provides is an actual essential for the development of the public at large, then non- compliance with the same by the individual is an offense against the public at large." 534 APPENDIX [§ 110 traffic it may be necessary to arrange that those going over the bridge from either end keep to their right, and the violation of such a provision may result in great disaster. Thus it is improper, immoral, not to comply with such a rule. It may even be said that to a certain extent the authority, as such, must be respected, even if its commands and prohibitions are materially injudicious. For disobedience, as such, readily becomes contagious, and the external order and therefore authority itself rests upon the principle of subordination. Therefore it is possible that disobedience as such can justly be punishable. Relation of " Violations of Police Regulations " to Crime. — From the foregoing it is apparent that " a priori " there is no dis- tinction in principle between criminal offenses and " violations of police regulations," just as historically this distinction is uncertain and flexible. It reduces itself to this, viz. : that the so-called " Po- lizeidelicte " bear far less of an immoral and therefore far less of a punishable character. It certainly can not be asserted that mere disobedience to commands always constitutes merely a " violation of police regulation " ; it is not so in an oriental despotism and even with ourselves, disobedience in military matters is quite a grave offense. The degree of immorality varies with time and circumstance. There are many actions in which it can be very d()ul)tful whether they should be treated as crimes or as " viola- tions of police regulations." ^ Since the propriety of punishment for " violation of police regu- lations ", just as in crimes, is based upon the immorality of the act, it furthermore comes about that in such punishment, just as in punishment for crimes, there must be guilt. Purely arbitrary punishment of individuals ^ is here precluded, and when it does take place operates just as in criminal offenses. Consequently it is a decided step in advance that the modern development of law establishes fundamental general principles essentially the same for " violations of police regulations " as for crimes,' and that - Among other things, § .322 of the German Criminal Code punishes the kindHng of fires on beac^li-cHffs, when likely to endanger navigation, with penal imprisonment not exceeding ten years, thus with special criminal punishments. Cf. also e.g. the German imperial statute of May 21st, 1878, dealing with violations of prohibitions enacted for the preven- tion of cattle disease. ^ E.q. the punishment of a man who is innocent in order to inspire the public with terror. '' Thus especially the German Criminal Code, of which the first or general part generally has reference to all ofifenses against police regula- tions that may be created. 535 § 11()| APPENDIX the former are committed to the courts and to those officials to whom the legal protection of individuals is, for the most part, entrusted. Yet the individual often feels a punishment is of equal severity whether it be inflicted upon him as a criminal punishment or as a sanction of the police system. And so it is often mere sophistry to seek an exit from a worn-out theory or a view which does not have the courage to pronounce itself openly upon the liability to or immunity of an act and to regard a judicious sanction of the police system as acceptable. An act which is not amenable to the criminal law because it is very difficult to ascertain or because its injurious effects are sub- stantially limited to its own author is no more punishable as a " violation of police regulation " than as a crime. It must however be admitted that the distinction between " violations of police regulations " and criminal offenses which is not " a priori " admissible, has a very great importance from the standpoint of the positive law, since public opinion has difficulty in a large number of offenses in recognizing their immorality. It does not refer these offenses to a defect in character, but rather regards them as something which can now and then happen to any one without in any way disturbing his social or legal position. The legislator who, in general, should give expression only to the moral convictions of the people must observe this distinction ; and doubtless it is substantially upon this that there exists, in positive law", the distinction of crime and " violation of police regulations." "^ General Characteristics of " Violations of Police Regulations." — The only result of combining crimes and " violations of police regulations " would be to create confusion. It is a mistake which modern legislation very properly avoids. This is the more so since acts whose immorality is recognized only after considerable reflection, and possibly known only because of the pronouncement of the authorities, are not in a class with those w^hich attack the permanent foundations of human society. The permitting or 5 Thus, offenses in this classification do not exactl.y correspond with the so-called "Polizeidelicte" (violations of police regulations), because the objective severity of the punishment e.g. the amount of the fine, also exercises an influence upon the form of the procedure. It is possible also that the punishment of an act which is in itself so little or only indirectly immoral must be rigorous because e. 17. the profit derived from the offense or its likelihood of repetition have to be considered, or because the offense is e.g. as a rule committed only by well-to-do persons. There may be yet another reason, an act, e.g. duelling, wliich public opinion does not regard as dishonorable, must be punished with really significant punish- ments. 536 APPENDIX [§ 110 prohibiting of sucli acts is far more dependent upon transitory cir- cumstances and possibly upon purely local needs and conditions. These are facts which involv'e quick changes in the law. The more indispensable and stable portion of the criminal law must be separated from that which is less requisite and more subject to change. Since the immorality of " violations of police regula- tions " is only an indirect one, the repression in such cases must be milder. Severe penalties must not be applied, and especially not penalties which affect honor. Such penalties would confuse the minds of the people and especially would readily give the impression that law rests a great deal upon changing and even arbitrary com- mands and prohibitions. The lightness of the penalties also leads to the propriety and indeed the practical necessity of a simpler procedure. Procedure as a means must always maintain a certain relation to its end, punishment. A trial which could have as its conclusion nothing more than a sentence to pay a few marks as a fine, but which had all the machinery which is occasioned by a trial for murder, would be a monstrosity, which could only tend to lessen the effect of criminal proceedings that are actually im- portant. The fact that the procedm-e is less thorough makes it more possible for an innocent man to be convicted in trials for " violations of police regulations " than in trials for crime. The lesser importance of the cases also makes it conceivable that each and every minor " violation of police regulations " is not investi- gated with the utmost rigor. The legislator even finds that he is impelled to make no distinction between transgressions that are intentional and those occasioned by negligence, since the result would not justify a \-ery precise in\'estigation. He may also possibly feel impelled to allow the punishment to be imposed upon a party only presumed to be guilty, e.g. the owner or possessor of a piece of land. It is therefore not difficult to criticize the variant views as to the nature of " violations against police regulations." There is hardly a material dift'erence between the view of Hugo iMeyer and the view here represented. He says : " The true dis- tinction between the two kinds of punishable wrong lies in this. The * violation of police regulations ' injures the useful elements of the legal system, while crime injures the necessary elements. But as the conceptions of usefulness and necessity overlap, so there are many kinds of oft'enses as to which one can only conjcH-ture whether they belong to the province of crimes or should be included 537 § llü) APPENDIX among ' xiolatloiis of police regulations.' " The permanent ami more unchanging fundamental rules of human society are also the necessary rules and the temporary or less permanent or those exhibiting greater local difi'erences are merely the useful rules.'' On the other hand, other opinions incorrectly emphasize some element as being exclusively the distinguishing one. Thus, the older view, represented especially by Feuerbach, regarded a crime as being only that which violates a subjective right. This distin- guishes, as it were, the core of the matter, but a very considerable margin extends on each side. This also applies to the view ^ which regards crime as a violation of a right and " violation of police regulations " as an endangering of a right. And the same may be said of the view which conceives a crime as a substantial and a " violation of police regulations " as merely a formal wrong.^ This last view gives too much prominence to that element of obedience to an external formal order, to the authorities. To this element we also have given some consideration. But we must absolutely dissent from the distinction of that later view which finds in "violations of police regulation", not punishment in its proper sense, but rather " discipline." ^ The individual should be disciplined by the punishment for the viola- tion just as little (or just as much, if one prefers this last expression) ^ I would remark that I do not entirely believe that legislation should exclusively distinguish offenses according to their gravity, i.e. according to the gravity of their punishments. At least the jurisdiction of those administering the criminal law should not be determined solely by the amount of the penalty, but also with consideration for the moral sig- nificance of the offense. Cf. "Grundlagen", p. 31. ^ Thus Grolmann, "Lehrbuch", § 365. Cf. also Seeger in Goltdammer, "Archiv" (1870), p. 245. Köstlin's view ("System des deutsehen straf- rechts," 1855, § 18) that a criminal offense is an actual wrong, and a " polizeideUct " is a possible wrong, is only an inapt expression of this view. It would at all events be more correct, as Fichte says ("Natur- recht", p. 294), for police laws to prohibit possible violations of the rights of others and for the civil laws to prohibit actual vdolations. * Thus e.g. Merkel, "Abhandlungen", I, pp. 95 et seq.; Binding, "Normen", I, pp. 179 et seq., pp. 205 et seq. (who designates an offense punishable by the police authorities as purely disobedience). In agree- ment with Binding is also Hälschner, "Das gemeine deutsche Strafrecht", I, p. 35, and earlier "System des preuss. Strafrechts", I, p. 2 ; "Gerichts- saal", (1876), p. 429. 3 Thus in a peculiar manner Hälschner, "Gem. deutsches Strafrecht", I. p. 37, where it is said that punishment inflicted by the police authorities should serve as a warning to the party punished. Should this not also be the case with criminal punishments? Admonition to discretion and obedience are certainly not the exclusive pro^dnce of punishments in- flicted by the police authorities. It is sufficient to consider on one hand offenses occasioned by negligence, and on the other hand resistance of officials. 538 APPENDIX [§110 as by the criminal punishment ; less perhaps, if one considers the real nature of the punishments actually inflicted for the viola- tions (fines, short imprisonment). Certainly punishment for " violations of police regulations " cannot be placed on the same plane as discipline (school punishment, or even parental punish- ment). Real disciplinary punishment, while possil)ly not exclud- ing the purpose of reformation and the well-being of the one punished, has as its first purpose his correction. This is not the case with punishment inflicted by the State, and most certainl\- not the case with punishment for " violation of police regulations." It is of more importance that this idea should be repudiated, since it is calculated to introduce a certain element of despotism into the infliction or non-infliction of punishment in the police courts on purely individual considerations. When it is considered how closely these punishments for " violation of police regulations " touch the individual's sphere of rights, such despotism appears intolerable and at total variance with the conception of " govern- ment based on rights " (" Rechtsstaat "). § 111. Disciplinary Punishments. — That theory of that class of punishments known as " Disciplinary punishments " (" Dis- ciplinarstrafe ")^ while at the present time of the utmost impor- tance, can not be exhaustively treated here. Its relation to ordinary punishment inflicted by the State should however be expounded. It must first be distinguished from the so-called *' Public Order " penalties (" Ordnungsstrafe ") in the proper sense,^ i.e. punishment specially threatened in individual cases for compelling one or more specific acts. " Disciplinary punish- ment " is essentially a means of coercion. If the purpose aimed at by the appropriate officials or the government in the threaten- ing of this punishment is in some way or other achieved, the exac- tion of the punishment may frequently be foregone, without disadvantageous results. For in these punishments a very sulv ordinate position is taken by moral reprobation of the act, although 1 Cf. especially Heffter, in "Neues Archiv des Criminalreehts" (Vol. 13, 1832), pp. 48 et seq.; MiUermoier, Feuerbach's "Lehrbueh" (14th ed.), § 477, Notes I and IV ; Biilnu in BlnnlschWs and Brnlcr's "Staatslexicon", Vol. Ill, p. 140; Pözl in the same, Vol. IX, pp. (396 cl seq.; Meves in Von HolizendorjJ's "Handbucli des deutschen Strafrechts", III, pp. 939 et seq.; Laband, "Das Staatsrecht des deutschen Reiches", I, pp. 447-459. The work of HefTter is of especial importance and also the (exposition of Laband. - Inappropriately insignificant punishments prescribed especially for the non-observance of merely formal provisions are also called "Ordnungs- strafen." 539 §111) APPENDIX some tliought of tlie same, which is reflected in the principle of i;uilt lierein prevaihng, is not entirely lacking. Consequently, it is generally conceded, in these coercive punishments, the officials who inflict these punishments, whether they be against sub- ordinates or private persons, have the right, if the object is realized, to dismiss or remit the same. Lack of Definiteness. — The law imposing " disciplinary pun- ishment " is an imitation of the criminal law for a limited circle of persons within the State united by a special course of life. There is however the modification that the special purpose of the associa- tion must also have its influence upon this special criminal law. For example, where education is the purpose of the association, consideration of the individual receives more attention than can be the case in public punishment, or in the disciplinary pun- ishment of State officials, where, at the most, reformation is but an incidental feature.^ The minimum of morality required is in ex- cess of that minimum which finds its expression in the criminal statutes of the State. From officials of the State, those who attend higher public institutions of learning, possibly from military persons, etc., more is demanded than from the general public at large.^ Along with their very special duties, they have the duty to conduct themselves in harmony with their position, conspicuous as it is in one way or other. To a certain extent, it is possible for the requirements of this conduct to be precisely fixed by custom and statute. But a general provision is useful which provides that he who is subject to disciplinary punishment should not show himself unworthy '" of that special position which he holds, or that he should so conduct himself (as it was expressed in the old oaths of allegiance) as " becomes a man of good standing, etc." 3 Therefore in disciplinary punishments in institutions of learning, the punishment may to a certain extent be foregone, if it would be especially injurious to the education, or the advancement of the one punished. The smaller the institution, the more attention can be given to considera- tions of the individual. ^ This position may indeed be termed "disadvantageous", a "Privi- legium odiosum", just as e.g. the position of con\acts in penal institutions. The convict as a matter of fact has more compulsory duties than one at liberty. He has the duty of industry, or order, of respect and of obedience to the prison officials. 5 Cf. the Prussian Statute of July 21, 1852, concerning breach of duties by non-judicial officials: "An official who (1) ^^olates a duty incumbent upon him, or (2) in his conduct in or out of his office shows himself un- worthy of the esteem, respect, or confidence which his calling demands, is liable to the pro^äsions of this statute." Cf. also §§ 72 and 10 of the German Imperial Statute of March 31st, 1873, concerning the legal status of imperial officials. 540 APPENDIX [§111 This lack of definiteness is explained by the fact that the range of these duties is nearly coextensive with that of the purely moral duties, which latter it is very difficult to comprehend within single principles. Therefore it is never possible to completely eliminate this defect of lack of definiteness, and for this reason in this disciplinary law, much depends upon the composition of the dis- ciplinary tribunals, — a matter in which we in our present discussion have no interest. Relation of Disciplinary Punishment to the Public Criminal Law. — There are various relations which may be held by this disciplinary law towards the public criminal law.^ The attitude may be taken that every public offense in which a person subject to this disciplinary law is concerned, shall be regarded only as an offense subject to the disciplinary law, although the rules for decision are substantially those of the public criminal law. For the discipline derived from the general statutes of the States is also binding upon the individual within the special disciplinary circle. This conception of the relation of the disciplinary law and public criminal law more readily obtains, where the individual is regarded, as it w^ere, as merged in the disciplinary circle, where belonging to the disciplinary circle is considered of over- shadowing importance. Such was the case in the law of the INIiddle Ages (the Canon law) in respect to crimes of the clergy, and such is the case to-day in the law of the German Empire,'^ and Conti- nental Europe generally, in respect to offenses of military persons. It is possible to proceed from the opposite side, and to regard the breach of the general criminal law and the breach of the dis- ciplinary law comprehended within the same act, as matters to be quite separately considered. The common law adopts this atti- tude in respect to ofTenses of public servants, and (of late years, since the abolition of the so-called " academic " jurisdiction by the introduction of the legislation of the Empire ^) in respect to offenses of students in the German Universities. According to 6 Moreover it is possible that a breach of a duty as a public servant may because of the special importance of the office, constitute a criminal of- fense, thus particularly violation of a duty as a judicial officer. ^ Although the non-military offenses of military persons are according; to § .3 of the "Militar-Strafgesetzbuch" for the CJerman Empire of .June 20, 1872, to be judged according to the general criminal laws, yet the juris- diction in such cases belongs to the military officials, i.e. thus to the dis- ciplinary officials. ^"Deutsches Geriehtsverfassungsgesetz", § 13, Prussian Statute of May 29, 1879, dealing with the legal status of students, etc. 541 §111] APPENDIX this view, the disciplinary Uiw is in principle something entirely independent of the general criminal law. There is nothing to prevent the same act from being punished according to both laws. For it is possible for an act to entail a very slight punishment, or indeed no i)unishment at all, according to the general criminal law, and at the same time when considered from the disciplinary viewpoint, i.e. from the standpoint of maintaining the honor and morality of a class to merit the severest repression. For ex- ample, an injury, under § 199 of the German Criminal Code, might because of some compensation or set-ofY, or of extra-judicial re- dress, go unpunished by the ordinary judge, while the same act — e.g. a public brawl among students or officials — might from the disciplinary standpoint deserve a very sharp penalty. However, the disciplinary punishment should not be made too independent of the ordinary punishment. Unless one would, as it were, constitute the class in question a State within the State, there must be adopted the general attitude that the ordinary punishment constitutes a sufficient repression for the members of all the classes in the State, but that the judge, as far as his range for the exercise of discretion extends, is not prevented from taking into consideration the rank of the accused and his cor- responding duties. One would have a sense of injustice if in the same case a public officer or a student, for example, should be sub- jected to double punishment, although an effective appeal could not be made to the rule of procedure " Xe bis in idem ", since judgment is only passed on that for which the judge in question is competent.^ (The purely disciplinary phase of the matter cannot be passed upon by the ordinary judge.) Frequently the party to whose hands the disciplinary punishment has been entrusted has no incentive to inflict a special penalty, since the public punishment at the same time serves the ends of discipline. This is of importance where there is an acquittal by the ordinary judge. If the judge acquits the accused because that which is proven against him does contain the facts necessary for a public offense,^° it mav well be that a state of facts exists which would ' I am unable to perceive how the rule "Ne bis in idem" causes diffi- culties which can be obviated only in the most formal manner, as Laband believes (p. 448). 1» Cf. also e.g. § 5 of the Prussian Statute of July 21, 1852 : "If there is an acquittal in the ordinary courts, then there can be a disciplinary procedure in respect to those facts which have come under discussion in the trial in the courts only in so far as these facts in themselves eon- 542 APPENDIX [§111 justify the infliction of even a very severe disciplinary penalty. For example, the criminal judge may be of the opinion that an injury in the legal sense, a fraud, etc., has not occurred,^^ and yet there may exist facts constituting a lack of the respect due to a superior, sharp practice, etc. In this case the acquittal does not form the slightest obstacle to disciplinary punishment. But quite a different condition obtains if the criminal judge denies the existence, as far as the accused is concerned, of that state of facts which could render the accused amenable to even the dis- ciplinary penalty — if for example, the judge found it not proven that the accused took part in the act, e.g. the })ra\vl, with which he is charged. In such a case it is natural that those to whom the infliction of disciplinary penalties is entrusted should respect the acquittal. If the criminal judge, to whom the State has granted means of investigation at least as effective (and in most cases more effective), as those of the disciplinary officials, could not arrive at a conviction, the disciplinary officials may not ad- vance the claim that they have greater powers of discernment. It is in no sense the function of the disciplinary procedure to make amends, in a manner more or less arbitrary, for the failure of the ordinary criminal administration to obtain results. Effect of Conviction by the Public Criminal Law. — A convic- tion by the ordinary criminal judge is not conclusive for the dis- ciplinary judge as indicating the guilt of the accused. If the statutory law does not make special provision to the contrary, the arriving at a positive opinion as to guilt must be unhampered, and an accused is entitled to this also before the disciplinary judge. And why should a man who is possibly innocent undergo a double penalty because he has once been formally convicted ? On the other hand, in regard to its actual results the conviction is very often conclusive. For example, where a man has been convicted of a dishonorable crime or sentenced to severe punishment, it will be said immediately that we can no longer tolerate him in the circle to which we belong.^- There can also be the i)enalty of ex- clusion (expulsion from the public institutions of learning or dis- stitute a breach of a duty of public service, without regard for the ele- ments of fact fixed by statute as constituting the violation, misdemeanor or crime." " In this respect, cf. also Leyser, "Spec." 650, n. 50. '2 Cf. e.g. § 7 of the Prussian statute just n-ferred to. For the reasons given in the text, if iijiulicidl investigation is l>cgun, its results will often be awaited. Cf. § 4 Abs. 2 of the quoted Prussian Statute ; § 78 Abs. 2 543 §1111 APPENDIX missjil from employment or from piil)lic service.) Logically this should 1)0 the only punishment. Difference of the Public Criminal Law and Disciplinary Law in Attitude towards the Offender. — This brings us to a point where the clillerence between the (liscij)linary law and the public criminal law is very marked. It is true that in their fundamental idea public criminal law and disciplinary law are not distinguished, and par- ticularly that, as is confirmed by the practice of every disciplinary tribunal, the element of guilt is as vital in the disciplinary law as in the public criminal law. However, incklentally the uselessness of the individual or his unworthiness may be given consideration in the disciplinary law, and hereby the law is extended or (as the case may be) limited. At least, this is so in all those cases in which the inclusion within the disciplinary circle in question pre- supposes a special capacity or merit. In this respect there is an element of private law" in disciplinary \aw}^ The State can not be bound to retain an official in its service and to give him all the advantages of his position, when the State can not use him because he is mentally or physically incompetent to attend to his duties,^^ or because by his actions he has lost the necessary confidence of others and their respect. The institution of learning can not be bound to retain as its fellow or student one who has committed a dishonorable act. This private law aspect comes more into prominence where entrance into the circle in question appears to be either a privilege or else a voluntary act of the individual. of the Imperial Statute of 1873. It all depends however upon the char- acter of the group subject to the discipline in question. In suspending the previously mentioned statutes of disciplinary investigation, § 14 of the Prussian Statute of May 29, 1871, dealing with the legal status of students says: "The disciplinary action of university authorities is in- dependent of any investigation in regard to the same act conducted in the law courts." 1' This aspect of the question, which Hefter also considered ("Lehr- buch des gemeinen deutschen Strafrechts", p. 178), is argued too one- sidedly by Laband, pp. 449 el seq. He regards the disciplinary power of the State over its officials as an indemnification in an action in contract. But the question of merit upon which, according to Laband, the possi- bility of the fulfillment of the contract should depend, necessarily in^•olves a moral decision aldn to one of the criminal law. Hugo Meyer, "Straf- recht", § 1, note 3, expresses himself as opposed to Laband's too biassed conception. Pözl in Bluntschli-Brater's "Staatslexieon", IX, p. 696, however, goes too far, since in eases of doubt he favors the analogous application of the fundamental principles of the public criminal law. 1^ This phase of the subject — incapacity to perform official duties because of mental or physical defects — in respect to members of the German Imperial Court is exclusively dealt with in § 130 of the German " Gerichtsvei'fassungsgesetz." 544 APPENDIX [§ 111 This is especially so in the case of public servants.^^ It would be possible to refer the question of expulsion or of unfitness to a civil tribunal.^^ If for other reasons this were not done, and even where a disciplinary official rendered the decision, neverthe- less the actual question remains the same.^^ There exists here by force of a positive legal provision a connection between the disciplinary law, peculiar to itself, and a portion of the law which, while related to it, is not of the same character. From this viewpoint disciplinary punishment can in the cases mentioned become subject to a certain limitation. If the in- dividual renounces his adherence to the favored class in question and also renounces all the special advantages resulting therefrom, e.g. the title, etc., then any infliction upon him of disciplinary punishment seems useless and irrational. Since he has departed from the special class, it knows him no more. Punishment of a Ijrior act in violation of the disciplinary law would cause this act to assume the character of a public crime. ^^ Such a punishment can be justified only where a monej^ fine fixed prior to the oft'ender's departure is thereafter enforced on the ground that it constitutes a " jus qusesitum ", a property right, of the holder of the dis- ciplinary power. This latter could be based upon the consent of the parties interested to the rules laid down for their government. 1^ Together with the question of lack of merit, consideration must also be given to whether the conduct of the official has created an impression on the public. The State is not concerned in things which are not publicly commented upon. A stringent investigation of the morality of its offi- cials would be more injurious than beneficial. The "infamia", upon which the earlier Canon procedure laid so much stress, always had its significance in this respect. P'or this reason the transfer to the disciplinary procedure of all the compulsory methods of the pulilie criminal procedure is not proper, and it can not be admitted that the disciplinary officials apart from special statutory provision possess the rights of a public criminal judge. '6 As to this, Ilefftcr, p. 178, and Pfeiffer, "Prakt. Ausführungen", III, pp. 411 el seq. 1^ However, in many cases in which a man, without having committed a grave (^rime, shall have been deprived of his office as a matter of dis- cipline, he must retain a portion of his compensation. As to this, cj. also Herrn. tSchulze, "Das preussische Staatsrecht", 1, p. 344, and Leyser, "Spec." 650, n. 31. '^ However, an offense previously committed ran constitute an e.\- elusion from the group in question. For this reason, § 6-1 of the German Ordinance of July I, 187S, dealing with solicitors, very properly provides : "There can be an investigation as to the fitness of a solicitor on account of acts committed Ix'fore he became such, only when the acts are such as would exclud(> him from his profession." Yor example, tlie officials of a German university can expel such per- sons as have obtained admission by fraud and e.g. have previously com- mitted a common crime. 545 § 111] APPENDIX Other Varieties of Disciplinary Punishment. — In conclusion, it is i)()ssil)lo tliat a kind ol" disciplinary law can be founded in l)rivate relations through contract, e.g. if the workers in a factory subject themselves to factory rules established by the owner and to definite penalties for the breach of these rules. Such a dis- cipUnary law juristically falls entirely under the conception of contract. If the factory worker is not satisfied, e.g. with the reduction of wages established by the owner of the factory as a penalty, then in the absence of other provisions, recourse may be taken to the civil courts. There is therefore precluded from this punishment every disadvantage which can not be specifically determined in the contract in advance. Therefore all imprison- ment is precluded, — at least deprivation of freedom would be- come illegal and criminally punishable from the moment the prisoner would declare that he desired to no longer be deprived of his freedom. Where Church and State are actually separated, this also is applicable to those punishments which the clerical power inflicts upon its adherents.^^ The privilege of using imprisonment as an actual punishment is thus obviously always a concession from the State to the Church. It is not possible to advance a universal and sufficiently definite theory of disciplinary punishment. It all depends upon the pur- pose of the group to which the disciplinary law applies. INIerely its general outlines may be given and its relation to the general criminal authority of the State. §112. Summary. — In conclusion, we desire to reduce our theory of criminal law to the following brief principles : Criminal law is founded upon that moral disapprobation, to a certain extent inevitable, of actions which are immoral, i.e. which are detrimental (or dangerous) to those conditions upon which depend the existence and progress of human society. This dis- approbation is inevitable to the extent that morality is generally founded and built upon a certain concurrence in the moral opinions of all. This general principle, however, furnishes no answer to the question as to what individual acts should be subject to the or- ganized disapprobation of the State. This is determined by numerous considerations of utility. These are identical with justice (which in criminal law can only be relative, i.e. historical) ^^ Cf. Richter, "Lehrbuch des katholischen u. evangelischen Kirchen- reehts", edited by Dove (7th ed.), p. 690. 54G APPENDIX [§ 112 only in so far as they are in harmony. That which we usually call punishment is only an external means of emphasizing moral dis- approbation : the method of punishment is in reality the amount of punishment, Confirmation of our view that punishment (" Strafe ") is nothing other than moral disapprobation is furnished by the German language itself. The word " Strafe " as signifying public punishment is of com- paratively recent origin. It does not occur until the time when, on the one hand, the old private vengeance and composition and, on the other, the more despotic treatment of those who were not free had completely disappeared. Originally it had no meaning other than that of censure, or disapprobation. The original meaning of the word " strafen " most certainly was not to inflict pain or to torment.^ \Yhen criminal law abandoned the old characteristics of private law, and its moral idea acquired a clearer expression, the language with rare discrimination retained the original word. 1 Cf. Grimm, "Deutsche Rechtsalterthümer " , pp. 680, 681 ; Weigand, "Deutsches Wörterbuch"; Lexer, "Mittelhochdeutsches Wörterbuch"; Schiller and Lübhen, "Mittelniederdeutsches Wörterbuch"; Schmeller, "Bayerisches Wörterbuch", under "Strafe" and "Strafen." The original and true meaning of "strafen" is : "To compare something with a rule, an object for measuring, and either to approve of it, or to bring it to its proper condition. Thus the carpenter 'strafft' the wood. 'Straf- fen' a copy with its original. To hold in good 'Straff.' '' 547 INDEX Abduction, 164, 169. Abegg, his criminal theory, 471. Abortion, 166, 167. "Absolute" theories of criminal law, 379, n. 2; changes in, 451; combination of absolute and rela- tive purposes, 452 ; in Abegg, 471; in Heffter, 473; in Frey- tag, 473, n. 8 ; in Hälschner, 478 ; in Heinze, 486 ; controversj^ be- tween relative theories and abso- lute principle, 492 ; defects of, 498. Accessories to crime, in Roman criminal law, punishment of, 41 ; in primitive Germanic law, 68; in Scandinavian law, 129 ; in medieval French law, 159 ; in Jousse's treatise, 267. Accusatory system, in Roman crim- inal procedure, 25, 47, 55 ; in medieval Germanic law, 118; in medieval French law, 150 ; in the Code of the North German Confederation, 359, 361. "Acht", 113, n. 3. Act and author, disapprobation of, 501. "Act of hand", 126. "Actiones populäres", 25. "Admonition" theory of punish- ment, 439. Adultery, 103, 161, 170, 184, 228, 286. .Esthetic judgment, Herbart's ret- ribution theory of, 455. Afflictive punishments, 273. Ahrens, writer on criminal law, 445. Albigenses, the, 180. "Amende honorable", 274. Analogy, use of, in defining and punishing crime, 250, 252, 330. Anathema, punishment of the Church, 124. Animals, criminal prosecutions against, 154. Aquinas, Thomas, 393. Arbitrariness of the law in the Middle Ages, 106. Aretinus de Gambilionibus, An- gelus, 206, 307. Aristotle, 386. Arms, the carrving of, 285. Arson, 132, 136, 138, 171, 287. Asvlum, right of, 88 ; violation of fight of, 112, n. 2. Athens, criminal law of, 6, ?*. 7, 19. Attempt at crime, punishment of, 41, 130; no theory of, in Custu- mals of the Middle Ages. 157. "Aufklärung", the, 299, 311. Augsburg, Statutes of, 108. Austrian, "Theresiana", 249; Code of Joseph II of 1787, 251 ; Code of 1803, 257 ; legislation since 1848, 364. Author and act, disapprobation of. 501. Azo, glossator, 206. Baden, Code of, of 1845, 346. Baldus de Ubaldis, 206, 307. "Bambergensis", the ("Bamber- gische Halsgerichsordnung"), 208, 304; relation of, to the Italian legal learning, 209 ; the penalties of, 211 ; relation of, to the local law, 212; intrinsic merit of. 214; recognition of, outside of Bam- berg, 214; comparison of the Carolina and, 217. Ban, pul)lic, 63, n. 17; royal, 73. Banishment, in France in the later Middle Ages, 190; for life, 270. See P]xiLE. Banlcruptcy. See Fr.\udulent. Bar, C. L. von, his exposition of the theorv of moral disapproba- tion. 497-547. Bartolomeus de Saliceto. 206. Bartolus de Saxoferrato, 206, 307. Batteries, 167. Bauer, the "admonition" theory of, 439. Bavaria, Feuerbach as legislator for, 328. Bavarian Code, of 1751, 248; of 1813, 330, 343; of 1861, 352. 549 INDEX Bcaumanoir, Philippo de, 14S el seq. JJ(H',('aria, (-<>sare, 311, 317, 413. liclj^iuiii, 3ü7. Bolvisio, Jaeobus de, 206, 307. "B(wu'lit of clorgy", 86, n. 11. Bciitliain, Jcroinv, 435. B(>rlich, Matthias, 236, 307. BcTiier, the criminal theory of, 480. Bifjaniy, 102, 170, 286. "Billonage", 282. Biiuliiifj, his "norm" theory of punishment, 477, 492 ; on law and morality, 500, n. 1 ; on the sover- eignty of the individual con- science, 500, n. 1 ; on torts and crimes, 527, 528, 532. Blasphemy, 184, 228, 280. Blood ban, 233, n. 1. Boehmer, Joh. Sam. Friedrich von, 245, 308. Bossius, Aegidius, 224, 307. Bouteiller, 150 et seq. Brand, the, 190. Breach of a pledged peace, 67, n. 3. Breach of the peace, 107, 143 ; a forty-mark cause, 132. Breach of the peace of the land, 66. Brunswick, Criminal Code of, 345. Burning alive, 180. Capital Punishments, in France, 269. See Death Penalty. Capitularies of the Carolingians, 72. Carnality, 286. "Carolina", the, 215; the "saving clause", 216, 304; comparison of the Bambergensis and, 217 ; careless manner of publication, 218 ; varied application of, 219 ; general effect of, 220 ; relation of, to the Reformation, 221 ; sup- plemented during the 1500 s, 223 ; not intended for really learned jurists, 225 ; evasion of, 235 ; in the Netherlands, 304. Carpzov, Benedict, 236, 307. Carrara, 436, n. 3. *' Categorical imperative", 423. Catharism, 180. Censorship in Roman public law, 24. Christian Church, in the Roman Empire, 53, 54 ; historical relation of, to the State, 84-88. Christian Church, criminal law of, excommunication as the founda- tion of, 79 ; unlimited in its scope, 81 ; law of penance, 81 ; influence upon the criminal law of the State, 81; growth of, 82, 83; similarity to criminal law of the State, 82 ; union with criminal law of the State under the Prank- ish kings, 84; influence of right of asyhim, 88; influence of acquisition of temporal juris- diction, 89; "poena? medicinales" and "ptKnjB vindicativae ", 91; defects of, 91; heresy, 92; ideal of Divine Justic(; and tlie Alosaic Law, 93 ; ultimate effect of, 94. Christianity, influence of, in later Roman Empire, 52, 54 ; attitude of, towards the law, 392 ; changed position of, as a State religion, 393 ; and punishment, in the criminal theory of Schleiermacher, 467 ; and punishment, regarded as disapprobation and as retribution, 506. Christians, persecution of, 43, 53. Church. See Chrlstian Church. Church mulcts, 124. Circumstantial evidence, 239. Cities of refuge, 6, n. 6. Civic death, 272. Civil punishments, 277. Civil wrongs. See Tort. Clarus, Julius, 206, 224, 307. Clergy of the Church, privilege of, 83. Cocceji, Samuel von, 410. Codes : Law of the Twelve Tables, 22 ; Capitularies of the Carolingians, 72; Scandinavian provincial Codes, 125; Scandinavian town Codes, 141 ; Bavarian Code of 1751, 248; Austrian Theresiana, 249 ; Statutes of Frederick II of Prussia, 250; Austrian Code of Joseph II of 1787, 251, 311; Prussian Landrecht of 1794, 254 ; Austrian Code of 1803, 257 ; Swedish-Finnish, 295 ; of Queen Cristina, 296 ; Code of 1734 (Scandinavia), 296 ; Penal Code of Oct. 6, 1791 (France), 321 ; Code of Brumaire, 322 ; Bavarian Code of 1813, 330, 343 ; Penal Code of 1810 (France), 335 ; Code of Criminal Procedure (France), 335 ; German Criminal Codes of the first half of the 1800 s, 343-346 ; Prussian Criminal Code of 1847, 349; Prussian Criminal Code of 1851, 349; Criminal Code of Lübeck, 352 ; Oldenburg Code of 1858, 352 ; 550 INDEX Codes {continued) : Bavarian Code of 1861, 352; other German Codes, 353 ; Criminal Code of the North Ger- man Confederation, 354 ; Draft Code of 1909 (Germany), 362; Austrian, since 1848, 364 ; the Dutch Code, 366 ; the Belgian Code, 367 ; the Danish Code, 367 ; the Norwegian Code, 368 ; the Swedish Code, 368 ; the Finnish Code, 369 ; the Swiss Codes, 370. Commanded peace, 142. "Compensation" theory of punish- ment, 379, n. 2, 447. Composition of offenses, 67, 68, 70, 72. Compurgators, proof by, 117. Concealers of crime, 160. "Conclusions", 260. Conditional liberation, 342. Confession, 157. "Confidence", 280. Confiscation of property, in Roman criminal law, 37 ; in primitive Germanic criminal law, 61, n. 14; in medieval Germanic law, 111 ; in medieval French law, 192 ; from the 1500 s to the Revolution, 270. Confrontativo proof, 117. "ConsiHa", the, of Fichard, 225. Contract, theory of criminal law based on, 401, 413, 416, 424, 473, n. 8, 475. Corporal punishment, 35, 144, 273. Corpse, proceedings against or e.x- ecution upon, 187, 250, 270, 282, 286. Counsel to crime, 103. Counterfeiting of money, 173, 282. Counterfeiting of the royal letters or seal, 283. Crime, Latin words for, 9, n. 2 ; bn^ach of peace with party in- jured, 64 ; formal, 65 ; the Ger- manic conception of, 65 ; special relations of space as relating to tiie commission of, 66 ; little con- sideration given to the element of intention in, in primitive Ger- manic law, 68, 69; the element of secrecy in, 70; prevention of, 88, n. 20; and i)(>rniissil)l(! self- defense or self-redress, 97, 98 ; instigation to, 103; attempts at, 103 ; through negligence and with malice, 103 ; considered as an infraction of the law in its ob- jective sense, 120 ; implies in- tent, 152 ; intent alone does not constitute, 156 ; limitations of principk^ that it was per- sonal, 161 ; wlien offender is or is not taken in the act, 161 ; l)egin- ning of ps3'chologieal analj'sis of, 245 ; conception of, in France, 265 ; by virtue of judicial deci- sion, 512 ; tort and, 524—533 ; \iolation of police regulations and, 535, 537. Crimes, changes in the theory of specific, in medieval German law, 101 ; in Swiss law, 144 ; classifica- tions of, 148, 1()2, 266 ; doctrines as to judicial discretion in defining, 240 ; according to the Declara- tion of the Rights of Man, 320 ; according to the French Penal Code of 1791, 321 ; according to the Bavarian Code of 1813, 330 ; according to the French Penal Code of 1810, 337 ; accordmg to the Prussian Code of 1851, 350; in the Austrian Code, 364 ; politi- cal, 373 ; according to Servin, 419. Criminal law, sources of, 4, 479 ; of Greece, 6, n. 7 ; influence of priesthood in, 6, 7 ; steady development of, to be obtained only by adherence to an outward standard, 92 ; reconstruction of society traceable in, 119 ; theories of, 379, n. 2 ; practical importance of theories of, 379 ; beginnings of speculation on, 381 ; Greek and Roman dissertations had no effect upon the practical sha])ing of, 391 ; lack of interest of medie\al philosophers in, 395 ; and Hugo Grotius, 398 ; and Hobbes, 401 ; and Spinoza, 404 ; and Pufendorf, 406 ; and Locke, 409 ; and Leib- nitz, 409; and Coeceji, 410; and Thomasius, 411 ; and Wolff. 411; and Rousseau, 412; and Beccaria, 413; and Fihuigii-ri, 416 ; and Globig and fluster, 417 ; and Ser\än, 418; and Wieland, 419; and Kant, 422; and Fichte. 424; the "special prevention" theory of (Grolmann), 427 ; and Feuerbach's tlu>orv of deter- rence. 428; and Thihaut, 433; and Bentham, 435; the theory of "necessary defense" (Roniag- nosi), 43() ; and Oersted, 438 ; the "admonition" theory of (Bauer), 439 ; and Schulze, 441 ; and Steltzer, 441 ; theory of reforma- tion founded on determinism (Groos, Krause, Ahrens, Röder), 551 INDEX 442; tho "restitution" or "com- pensation" theory of (Welcker, Hopp), 451 ; changes in the absolute principle of (ZachariJi, Henke), 452; combination of absolute and relative purposes of (Rossi, etc.), 452; Herbart's retribution theory of sesthetic judgment, 455 ; Hegel's theory of punishment as the negation of wrong, 460 ; theological tend- encies of (Stahl, Sehleiermacher, Daub), 464; later development of Hegel's theory, 470 ; and Heinze, 482 ; and von Kirch- mann, 48() ; and Schopenhauer, 487 ; and Diihring, E. von Hart- mann, von Liszt, 490 ; Binding's theory of the effect of disobedience to a rule, 492 ; and Laistner, 493 ; defects of the absolute and relative theories of, 498 ; the purpose of, 499-513 ; considerations regard- ing punishment, 515-523 ; and morality in its narrower sense, 523 ; tort and crime, 524-533 ; Adolation of police regulations, 533-539 ; disciplinary punish- ments, 538, 539-546 ; summary of von Bar's theory of, 546. Criminal Ordinance of 1670 (France), 266, 268. Criminal Ordinances of Philip II of 1570 (Netherlands), 304. Customary law, 119, 123. Damhouder, Jodocus, 224, 306. Dankwardt, his theory of criminal law, 443, n. 3. Daub, his theory of criminal law, 469. Death penalty, in Greek criminal law, 6, n. 7 ; in Roman criminal law, opposition to, 28 ; increased use of, 34 ; demanded by the Church, 55 ; due to caprice of Emperors, 55 ; in primitive Ger- manic criminal law, 59, n. 9 ; under the Merovingians, 71 ; in medie- val Germanic law, 108, n. 8, 109 ; in medieval French law, 188 ; in Germanic law in the later 1500 s and the 1600 s, 239 ; in France from the 1500 s to the Revolution, 269 ; in Scandinavia, 295 ; in the Netherlands, 309 ; according to Plato, 383 ; according to Beecaria, 414 ; according to de Maistre, 466, n. 10 ; according to Sehleier- maeher, 467 ; according to Rothe, 469. n. 23. Declaration of the Rights of Man, 320. Defamation, 1()9. Defamatory libels, 289. Defense of society, object of punish- ment, 509 "Dehts", 265, 419. Denmark, 367. Despotism of rulers in the 1.500 s and the 1600 s in Germany, 229. Determinism, theory of reformation founded upon, 405, 442. Deterrence, as object of punishment, 381 ; in Spinoza's theory, 405 ; in Pufendorf's theory, 407 ; in Leibnitz's theory, 410 ; in Thom- asius' theory, 411; in Becearia's theory, 414 ; in F^ilangieri's theory, 416 ; in Globig and Huster's theory, 417 ; in Servin's theory, 418 ; in Fichte's theory, 425 ; through threat of law, Feuerbaeh's theory of, 430 ; in Bentham's theory, 435 ; Feuerbaeh's theory of, modified by Bauer, 439 ; reac- tion against Feuerbaeh's theory of, 441 ; in the "restitution" theory, 447 ; in Stahl's theory, 465 ; in Abegg's theory, 472 ; in Berner's theory, 481 ; in von ICirchmann's theory, 487 ; theory of, has been gaining adherents, 488, n. 7 ; in von Bar's theory, 509 ; defects of theory of, 514; in Riimelin's, 523, n. 9. Disapprobation, ethical, as a neces- sary element of morality, 500 ; of act" and author, 501 ; the possible and proper methods of expressing, 501 ; pubUc, 502 ; is not retribu- tion, 504 ; various phases of, as punishment, 506 ; active, the essential matter in punishment, 508 ; private vengeance as an ex- pression of, 509 ; the idea of, ex- pressed by various \VTiters, 513. Disciplinary punishments, 538, 539 ; lack of definiteness of, 540 ; rela- tion of, to the public criminal law. 541 ; effect of conviction by the public criminal law, 543 ; differ- ence of the public criminal law and, in attitude towards the of- fender, 544; other varieties of, 546. Disobedience, an o^ense, 516. Disorderly behaWor during di^-ine service, 281. Divine justice, idea of, in punish- ment, 381, 464. "Dolus", 11, n. 1. 52, 433. Draft Code of 1909 (Germany), 362. DueUing, 235, 283, 511, n. 4, 536, n. 5. Dühriug, 490, 501. 552 INDEX Durantis, Guilielmus, 206. Duress of imprisonment, 283. Duty to punish, 386, 399, 493, 499, 510 ; Hegel's discussion of, 463. "Encis", 165. Epicureans, the, 388. EquaUty before the law, 103. Ethical judgment as a necessary ele- ment of moraUty, 500. Excommunication, 91, 124; as the foundation of the criminal law of the Church, 79. Exile, in Greek law, 6, n. 7 ; in Roman criminal law, 29, 31, 32; in medieval Germanic law. 111; in France, 274 ; and outlawry, 510. See Banishment, Out- lawry. Expediency and justice in punish- ment, 520. Extenuating circumstances, 158, 339, 342, 357, 359. Extortion and malversation in office, 283. Faber, Antonius, 307. False witness, 74, 288. Falsification, 287. Family, crimes against, 169. Farinacius, Prosper, 224, n. 2, 307. Feudal offenses, 179. Feuds, 97, 120. Feuerbach, 326, 428. Fichard, Joh., 225. Fichte, 424. Filangieri, his theory of criminal law, 416. Fines, private and public, in Scandi- navian law, 120, 121, 123, 126, 130 ; forty-mark and three-mark causes, 132 ; in Swiss law, 144 ; for offenses of procedure, in medi- eval French law, 176 ; use of, in medieval French law, 193; in France, from the 1500 s to the Revolution, 275 ; criminal, police, and civil, 276. Finland, 369. Fiscal offenses, 176. Forgery, 173, 287. Forgiveness, 498, 503. Formal crime, 65. Fortv-mark and three-mark causes, 128, 130, 132. France, medieval criminal law, no theory of, in Custumals, 146 ; theory and practice of punisliment in, 146-152; stress laid upon in- tention in, 152 ; criminal prose- cutions against animals, allowed by, 154 ; no theory of attempt in, 157 ; second trial of same offense not allowed by, 157 ; precau- tions in, to prevent ill-founded prosecutions, 157 ; extenuating circumstances, 158; punishment of accomplices, 1.59 ; punishment of concealers of crime, 160; limi- tations of principle of personal crime, 161 ; specific crimes, 161- 187 ; punishments, 187-197. France, from the 1500 s to the Revo- lution, criminal law underwent no change from the 1200 s to the 1700 s, 259 ; general features, 259 ; no Criminal Code, in the Old Re- gime, 260; Roman princnples in, 260 ; no science of criminal law in. 261 ; relation of criminal law to pro cedure in, 262 ; discretionary char- acter of the penal S3'stem, 262 ; conception of crime unscientific, 265 ; classification of crimes, 266 ; penalties, 268 ; the several crimes and their punishments, 278. France, from the Revolution, com- parison of the criminal law of the Old Regime and tlie modern crimi- nal law, 315; effect of new ideas of reason and hunuinity, 317 ; re- forms on the eve of the Revolu- tion, 319; the Code of 1791 and the Code of Brumaire, 320 ; the Penal Code of 1810, 335 ; princi- pal changes in penal law during the 1800 s, 338. Fraudulent banlcruptcy, 288. Frederick II of Prussia, Statutes of, 250. "Free places", 112, n. 2. French Revolution. See Revolution. Freytag, 472, n. 8. "Friedbrüche", 107. "Frieden ", confusion resulting from the term, 107. Gabba, 454. Gail, Andreas, 307. Galleys, 252, n. 7, 269. Gambling, ordinanc^es against, 175. Game and fish laws, offenses against, 174. Gandino, Albertus de, 206, 307. Germanic conception of the rela- tion of the individual to the State, 18. Germany, criminal law, primitive, prominence of the element of ven- geance in, 57 ; outlawry in, 62 ; crime a breach of peace with the party injured, 64 ; formal crime in, 65 ; breach of tlu> pi'ace of the land, 66 ; composition of offenses, 53 INDEX 67 ; littlo consideration given to intention in, OS ; the (element of secrecy in, 70; influence of the early kings in, 71 ; the Capitu- laries of the Carolingians, 72 ; the royal ban, 73 ; influence of the punishment of slaves, 74 ; effect of loss of freedom by mass of people, 74. Germany, criminal law, medieval, result of the degradation of the mass of the people, 95 ; feuds and self-redress, 97; "Landfrieden", 98 ; changes in the theory of spe- cific crimes, 101 ; equality before the law, 103 ; effect of changes in the law of proof, 104 ; arbitrary character of the law, 106 ; con- fusion resulting from the term "Frieden", 107; reversion to primitive conceptions, 108 ; sever- ity of the law, 108 ; application of Mosaic law, 108 ; cruelty of the punishments, 109 ; failure of the law, 110 ; incidental circumstances having a demoralizing influence, 112; private settlement in cases of crime, 114 ; the "Grace" of the rulers, 115; other peculiar cus- toms, 117 ; influence of accidental circumstances, 117; uncertainty of the court procedure, 117. Germany, criminal law in the early 1500 s, permanent features of, 204 ; first came into contact with the Roman criminal law in Italv, 204; early books of, 207; the "Bambergensis", 208; the "Car- olina ", 215. Germany, criminal law in the late 1500 s and the 1600 s, relation of the Carolina to the Reformation, 221 ; the Reformation unfavorable to the progress of, 221 ; no scien- tific administration of, during the 1500 s, 223; work supplementary to the Carolina, 223 ; the juris- consults and the law faculties, 225 ; domination of theology, 226 ; witchcraft, 226 ; despotism of rulers, 229 ; lese majeste, 230 ; abuse of, 232, 234, n. 2 ; mitiga- tion of punishments and interces- sion, 234, n. 3 ; field of, abandoned by legislation, 235 ; evasion of the Carolina, 235 ; rise of imprison- ment as a penalty, 237 ; change in law of proof, 239 ; doctrines as to judicial discretion in defining crimes, 240. Germany, criminal law in the 1700 s, gradual suppression of witchcraft, 243; emancipation from theology and the Mosaic law, 244 ; <;ffect of doctrin(! of Law of Nature, 245 ; more ample sources and methods us(!d, 245 ; aband(mm(!nt of com- mentary form of exposition, 240 ; treated apart from Roman law, 246 ; early treatises on, 246 ; af- fected by new theories of criminal law emanating from Italy and France, 247 ; legislation and codes, 248. Germany, reasons for her reception of the Roman law, 202 ; early law books introducing the Italian legal doctrines into, 207 ; freedom of religious faith not achieved by the Reformation, 222 ; the litera- ture of the 1500 s and 1600 s, 223 ; scantiness of legislation in the later 1500 s and the 1600 s, 233 ; the new direction given to German criminal theory in the late 1700 s, 325 ; Grolmann and Feuerbach, 326 ; Bavarian Code of 1813, 330 ; the criminal Codes of the first half of the 1800 s, 343; influence of the political agitation of 1848 347 ; legislation in Prussia, 348 the Bavarian Code of 1861, 352 other Codes, 353 ; progress to- wards greater legal unity, 353 ; the Criminal Code of the North Ger- man Confederation, 354 ; other criminal laws, 361 ; the Draft Code of 1909, 362; criminal theories in, from Hegel to Binding, 460-494. Geyer, his theory of criminal law, 457. Gilhausen, Ludwig, 224. Glaser, criminalist, 365. Globig and Huster, essay on "Crimi- nal Legislation ", 247, 311 ; theory of criminal law, 417. Glossators, 206. Glunek, Hye von, 364. Gomez, Antonio de, 307. "Gottesfrieden ", the, 98, n. 5. "Grace" of rulers, 115. Greece, criminal law of, 6, ti. 7, 19; the beginnings of speculation on criminal law in, 381 ; the Sophists, 381 ; Socrates, 382 ; Plato, 383 ; Ai-istotle, 386; the Stoics, 388; the Epicureans, 388 ; Scepticism, 389 ; Neoplatonism, 390. Groenewegen, S. van, 307. Grolmann, his theory of criminal law, 326, 427. Groos, his theory of criminal law, 442. 554 INDEX Grotius, Hugo, 307, 397, 398, 513. "Gruet-apens ", 164. Hälschxer, his theory of criminal law, 477, 526, 532, n. 24. "Ilalsgt'riehtsordnung", for Radolf- zell, 207. "Handfrieden ", 99. "Handless risk", 126. Hanoverian Code of 1840, 344. Hard labor, 36. Hartmann, E. von, 490, 499, 501. Hasselt, J. J. van, 307. Haus, his theoi-y of criminal law, 454. "Hausfrieden", 102. Heff, his theory of criminal law, 451. Heffter, his theory of criminal law, 473. Hegel, his theory of the negation of ■wrong, 460 ; effects of his philoso- phy of criminal law, 464 ; later de- velopments of his theory, 470 ; combination of his and Fichte's theories, 482 ; merit of his theory, 498 ; his distinction of tort and crime, 525. Heinze, his theory of criminal law, 482. Henke, H. W. E., 452. Henrici, 454. Herbart, his theory of criminal law, 455. Heresy, 92, ISO, 279. Hertz, Ed., .525, n. 1. Hesse, Criminal Code of the Grand- duchy of, 346. Heyssler, 531. Hierocles, 390. High treason, 282. Highway robbery, 164. Hippolvtus de Marsiliis, 307. Hobbes, Thomas, 401. Hogendorf, Dr. Didarik van, 308. Holmhernsson, Prof., 368. Homicide, early suppression of ven- geance in cases of, at Rome, 1 1 ; Roman laws relating to, 20, n. 12 ; in provincial Codes of Scandinavia, 125 ; made a crime by intent, 152 ; in French medieval law, 165; in France from the 1500 s to the Rev- olution, 285. See Murder, Max- slaughter. Honor, personal, 143. Honor-penalties, 145. Houses of ill-fame, forbidden, in medieval French law, 175. Howard, John, 327. Hunting, laws against, 174. InnKiNG, VON, 515, 519. Imprisonment, 6, ?i. 7, 35, 110, n. 19, 191 : rise of, as a penalty, 237 ; ac- cording to the Austrian Code of Joseph 11, 2.53 ; in France from the 1500 s to the Revolution, 277; in the Netherlands, 309, 310; in Austria, 364. Incantation, 183. Incest, 286. Individual, subordination of, 5 ; relation of, to the State, the Ro- man conception, 17 ; relation of, to the State, the Germanic con- ception, 18 ; rights of, contribu- tion of Roman criminal law to the establishment of, 19. Infamous punishments, 275. Infamy, its relation to Roman crimi- nal law, 6, n. 7, 24, 37 ; in medie- val Germanic law, 111; in France from the 1500 s to the Revolution, 277. Infanticide, 166. Instigation to crime, 103, 130. Insults, 167, 289. Intention of crime, little considera- tion given to element of, in primi- tive Germanic law, 68 ; explana- tion of lack of consideration gi\-en to, 69 ; necessary to crime, in French medieval law, 1.52 ; does not alone constitute crime, 15(). Interdict, the, 91. Italian jurists, 204. .Joseph II of Austria, Code of, 251, 311. -Jousse, 318, n. 12. Jurisprudence of the Roman Empire, 21. Jurists, influence of, in Roman crimi- nal law, ,50. "Jus Papirianum ", 13, «. 6. Justice, to the offender, expressions of disapproval are, 504 ; of punish- ment, tradition furnishes, 517 ; and expedienc3% in punishment, 520. Kant, Immanuel, 422. Kersterman, J. L., 307. Kirchmann, von, his theorj- of crimi- nal law, 486. Kitz, his theorj' of criminal law, 481. "Klagspiegel", the, 207. Köstlin, his theory of criminal law, 473. Krause, K. C. F., 444. Kress, 240, 243, 245. Laistner, his theory of crimiual law, 493. "Landfrieden", the, 98. 555 INDEX Larceny. Rc.c Theft. Law, attitude of the early Chris- tians toward, ;i92 ; and morality, in criminal law, according to Pufendorf, 4ÜS ; Cocceji, 411; Filangicri, 416; Servin, 419; Kant, 422; Fichte, 424; Grol- mann, 427 ; Feuerbaeli, 433 ; Homagnosi, 437 ; Oersted, 438 ; Bauer, 439 ; Schulze, 441 ; Schop- enhauer, 488 ; morality as the basis of, 499. Law-faculties, 226. Leeuwen, Simon van, 307, 310. Leibnitz, 409, .513. Lese majcste, in ancient Rome, 41 ; and " perduellio ", 51 ; in French medieval law, 163 ; in Germanic law in the later 1500 s and the 1600 s, 2.30; in France from the 1.500 s to the Revolution, 282. *'Lese majeste divine", 279. "Lese majeste humaine", 281. Lex .Julia de adulteriis, ,39. "Liability Law", the, for the Ger- man Empire, 528. Libels. See Defamatory. Lieber, 516. Linden, J. van der, 307. Liszt, Franz von, 362, 490. Locke, .John, 409. Lübeck, Criminal Code of, 352. Lynch law, 512. Magic, 279. Maiming punishments, 273. Maistre, Joseph de, 466, n. 10. "Malleus maleficarum ", 227. Manslaughter, 112; and mxirder, 102; compensation for, 114; a forty-mark cause, 132 ; in Scan- dinavian town Codes, 141. Market-town laws, 140. Marriage, crimes against, 170, 286. Masks, the wearing of, 285. Matthaeus, Antonius, 245, 307. ' ' Maximilianisehe Halsgerichtsord- nungen ", 207. Medieval Germanic law. See Ger- many, Criminal Law, Medieval. Meisler, 308. Merkel, his theory of criminal law, 473, 475, .528. Meyer, Hugo, .501, 7i. 2, 513, 522, n. 7, 523, n. 9. 537. Misdemeanors, 149 ; according to the Code of Brumaire, 322; according to the Bavarian Code of 1813, 330 ; crimes changed to, in France, 339 ; according to the Prussian Code of 1851, 350 ; in Austrian Code, 364. Mitigating circumstances, 234, n. 3, 237. Mitigation of jM'nalty, 339. Mittermaier, 4.54. Mohl, 4.54. Monopoly, a form of lese majeste, 1()4. Moorman, J., 307. Moral disapproV)ation, von Bar's theory of, 497-547. .S'ee Dis- approbation. Morality, as the basis of law, 499 ; ethical judgment as a necessary element of, .500 ; and public dis- approval, .502 ; in its narrower sense, and criminal law, 523. See Law. Moralizing tendencies of judges, 104. Mosaic law, in law of Christian Church, 93 ; apphcation of, in medieval Germanic law, 108 ; and witchcraft, 227 ; emancipation from, in the 1700 s, 244. Mulcts, Church, 124. "Multse irrogatio", 17. Murder, and manslaughter, 102 ; in Scandinavian law, 120, 135 ; in French medieval law, 164. See Homicide, Manslaughter. Mutilation, as a punishment, 189, 238. Nature, Law of, 245, 401, 402, 405, 407. "Necessary defense", theory of, 436, 441. Negation of wrong, Hegel's and Daub's theory of punishment as, 460, 469, 498. Negligence, punishment of, 41 ; acts committed through, and those committed wdth maUce, 103. Neoplatonism, 390. Netherlands, sources of criminal law in, before the 1.500 s, 301; the Roman law in, 302 ; the Carolina and Criminal Ordinances in, 304 ; general features of the criminal law of, from later medieval times to the 1700 s, 306; character of the criminal law of, for this period, 308 ; the reform movement of the later 1700 s, 310; since the 1800 s, 365. "Norm" theorv of punishment, 475, n. 11, 477, 492. North German Confederation, Crim- inal Code of, 354 ; its character, 356 ; opposition to, in the Reichs- tag, 356 ; changes in, made by the Reichstag, 357 ; criticism of, 556 INDEX 358 ; becomes code of the Em- pire, 358 ; the Criminal Law Amendment Act of 1876, 360 ; changes in other paragraphs, 361. Norway, 368. Obstruction of Public Justice, 283. Oersted, his theory of criminal law, 438. Offenses, criminal and contrary to police regulations in the Austrian Code of Joseph II, 253 ; definitions of, in the Prussian Landrecht of 1794, 257 ; against reUgion and the Church, 279 ; of the press, 289 ; in Austrian Code, 364. Oldekop, 236, n. 10. Oldenburg Criminal Code, of 1814, 344 ; of 1858, 352. Ortolan, 454. Outlawry, how far the most primi- tive form of punishment, 62, 504, 509 ; entailed by breach of the peace. 111, n. 24 ; conditional, 112 ; in Scandinavian law, 134, 141, 293. Pandering, 286. Pardon, executive power of, 323. Parricide, 285. Parsimony, the principle of, in pun- ishment, 519. "PaterfamiUas ", power of, 23. Peace, special relations of, as relating to the commission of crime, 66, 123, 142. Peace-law, Germanic, 142. Peace money, 61. Peculation, 283. Penal Code of Joseph IT, 251, 311. Penal Code (France), of 1791, 321 ; of 1810, 335. Penal statutes, in later Roman Em- pire, 54. Penalties. See Punishment. Penance, law of, characteristics of, 81. Penitentiaries, 237. Perdition. See Treason. "Perduellio ", 16; and lese majeste, 51. Perjury, 288. Persecution of the Christians, 43, 53. Pillory, 111, 190. Plato, 383. Pledge, theory of, in criminal law, 489. "Pledged peace", 99, 142. "Poenje medicinales ", 91. "Poenae vindieativse ", 91. Poisoning, 285. Police regulations, violations of, 533 ; three tj'pes of, 534 ; relation of, to crime, 535, 537 ; general characteristics of, 536. PoUtical crimes, 373. Premeditation, acts committed with, 103. Press, offenses of the, 289. Press Law, the, 290. Preuschen, von, 454. Prevention of crime, 88, n. 20. Priesthood, influence of, in criminal law, 6, 7. Prison breaking, 283. Prison reform, 327, 509. Private law. See Tort. Private settlement, 114. Procedure, offenses of, 176 ; pro- portioned to seriousness of offense, 537. Profanity, 280. Proof, law of, changes in, 104 ; combinations of Germanic and Roman rules of, 117; change in law of, in Germany in the later 1500 s and the 1600 s, 239. Property, crimes against, 171, 287. Property-system, ofi"enses concern- ing, 176. Prosecutions, initiated bj^ private parties, desirability of, 511. Prostitutes, 108. Provincial Codes, in Scandinavian law, 125. Prussia, legislation in, 348. Prussian Criminal Code, of 1847, 349; of 1851, 349. Prussian Landrecht of 1794, 254. Pubhc accusations, in Scandinaxnan law, 119, 294; in medieval French law, 150. Public ban, 63, n. 17. Pubhc disapproval, 502. Public opinion, 120, 310. "Public Order" penalties, 539. Public prosecutor and prosecution, 260, 262. Pu])Ii(' punishment, in German crim- inal law, .58, 61, /(. 14, 71, 75, 76, 97; in Scandinavian law, 126, 132, 134, 137. Pufendorf, his theory of criminal law. 325, 406. Punishment, in Roman criminal law : in statutes of later Republic, 28; e.\ile, 29, 31, 32; death, 28, 34; imprisonment, 35; hard labor, 36; other methods, 37; infamy and confiscation of property, 24, 37 ; of attempt 557 INDEX at crime, 41 ; of acccssorios to crime, 41 ; of negligence, 41 ; in imperial criminal law, as affected by class privilege, 45 ; as affected by administration of justice by state officials, 47 ; evidencing disregard for the criminal, 48 ; as influenced by jurists, 50 ; as influenced by the Church, 53, 55, 92; as influenced by caprice of Em- perors, 55. In German criminal law : public or State, 58, 61, n. 14, 71, 75, 76, 97; confiscation of property, 61, n. 14 ; outlawry not the most primitive form of, 62 ; of unchastity, 65, n. 26 ; the Capitularies of the Carolingians, 72 ; the royal ban, 73 ; other forms of, 73 ; of slaves, influ- ence of, 74 ; effect of exorbitant damages, 75 ; cruelty of, in Middle Ages, 109 ; degrading forms of. 111, n. 22 ; a means of restoring public law and order, 120 ; according to the Bam- bergensis, 211 ; mitigation of, in the later 1500 s and the 1600 s, 234, n. 3, 237; rise of imprisonment as a form of, 237 ; extraordinary (or suspicion), 239 ; according to the Austrian Code of Joseph 11, 252 ; accord- ing to the Austrian Code of 1803, 258 ; in the North German Confederation, 357. In Scandinavian criminal law : Church, 124 ; public and pri- vate, 126, 132, 134, 137 ; in the 1500 s, 293. In French criminal law : early confusion in notions of, 146 ; attempts at classification of forms of, 148 ; decrease in rigor of idea of right of, 150, 188 ; bases of right of, in Middle Ages, 151 ; arbitrariness of, 151 ; for usurers, 186 ; in later Middle Ages, 187-197; discretionary, 264 ; various forms of, from the 1500 s to the Revolution, 268 ; of various crimes, 278 ; according to the Declaration of the Rights of Man, 320 ; according to the Code of 1791, 321 ; according to the Code of Brumaire, 322 ; according to the Penal Code of 1810, 337 ; mitigation of, since 1810, 339; for the reeidiAast, 341 ; repressive, seclusionary, 558 and prmitentiary, 341, 342; individualization of, 342. In Swiss criminal law, 144. Various objects of, 381, 488 ; con- sidered as benefit to the wrong- doer, 383, 387, 390, 468, 469, 472 ; deterrence as object of, 40.5-523, n. 9 (See Deter- rence) ; reform as object of, 391, 407, 410, 411, 441, 442, 46.5, 481, 509, 514 ; retribution as object of, 398-523, ri. 9 [See Retri- bution) ; justification and obli- gation in, 386 ; as a negation of wrong, 460 ; the Sophists' theory of, 381 ; Plato, 383- 386 ; Aristotle, 386 ; the Stoics, 388 ; the Epicureans, 388 ; the Roman philosophers, 389 ; Thomas Aquinas, 393 ; Gro- tius, 398; Hobbes, 402; Spi- noza, 404 ; Pufendorf , 406 ; Locke, 409; Leibnitz, 409; Cocceji, 410; Thomasius, 411 ; Wolff, 411 ; Rousseau, 412 ; Beccaria, 414 ; Beccaria's in- fluence on views of, 415 ; Filan- gieri, 416 ; Globig and Huster, 417; Servin, 418; Wieland, 420; Kant, 422; Pichte, 425; Grolmann, 427 ; Feuerbach, 429 ; Thibaut, 433 ; Bentham, 435 ; Romagnosi, 437 ; Oersted, 438; Bauer, 439; Schulze, 441 ; Steltzer, 441; Groos, 443; Krause, 444 ; Ahrens, 445 ; Röder, 446 ; according to the compensation theory (Welcker), 447 ; Hepp, 451 ; Zachariä, 451 ; Henke, 452 ; combina- tion of absolute and relative purposes of, 452 ; as a negation of wrong (Hegel, Daub), 460, 469 ; theological tendencies (Stahl, Schleiermaeher. Daub), 464 ; later developments of Hegel's theory, 470; Heinze, 482 ; von Kirchmann, 486 ; Schopenhauer, 487 ; Diihring, E. von Hartmann, von Liszt. 490; Laistner, 493 ; defects of absolute and relative theories of, 498; according to Seber, 501, n. 3 ; outlawry the original, 504 ; as disapprobation and as retribution, and Christianity, 506 ; various phases of disap- probation as. 506; reprimand, 506, n. 9 ; undetermined, 507 ; the true purposes of, 508 ; ref- ormation not the primary element in, 509; a right of INDEX society rather than of the State, 510 ; the idea of disapprobation as, expressed by various writers, 51.3 ; kinds and methods of, 515 ; degree of, 517 ; what acts deserve, 518 ; the principle of parsimony in, 519 ; expediency and justice in, 521 ; discipHnary, 538, 539-546; "pubhe order", 539 ; confirmation that it is moral disapprobation in word "Strafe ", 547. Purgation, oath of, 117. Purification, as an object of punish- ment, 381. QuiRÖs, C. Bernaldo de, 494. Quistorp, 308. Rabenius, Professor, 369. Rape, 169, 286. Recidivists, 340, 341. Reformation, the, relation of the Carolina to, 221 ; freedom of religious faith not achieved by, 222 ; unfortunate results of, 223 ; period of, in Switzerland, 297. Reformation of prisoner through punishment, methods of obtain- ing, 340; theory of, 381; pur- pose of Deity, 391 ; in Pufen- dorf's theory, 407 ; in Leibnitz's theory, 410 ; in Thomasius' the- ory, 411 ; in Steltzer's theory, 441 ; theory of, founded upon determinism, 442 ; in Stahl's theory, 465 ; in Berner's theory, 481; in Kitz's theory, 481; not the primary element in punish- ment, 509 ; an impossible theorv, 514. "Relative" theories of criminal law, 379, n. 2 ; combination of absolute and relative purposes of punishment, 452, 478 ; in Abegg's theory, 472 ; in Ileinze's theory, 486; and abso- lute principle, controversy be- tween, 492 ; defects of, 498. Religious tolerance, 221, 244. Remission of punishment, 196, 228, 232. Reprimand, 506, n. 9. Reprobation. See Disapprobation. Rescission theory of punishment of Kitz, 481. Responsibility, theory of, 387. "Restitution" theorv of punish- ment, 379, 11. 2, 447. Retaliation, as an object of punish- ment, 381, 505; impulse towards, 490. Retribution, as object of punish- ment, 381 ; in Hugo Grotius' theory, 398, 401 ; in Kant's theory, 416, 422 ; in Zachariä's theory, 451 ; in Henke's theory, 452 ; theory of a?sthetic judg- ment, Herbart's, 455 ; in Stahl's theory 464 ; in de JMaistre's theory, 466, n. 10 ; in Abegg's theory, 471 ; in Köstlin's theorjs 474 ; in Merkel's theory, 476 ; in Berner's theory, 480 ; disapproval is not, 504 ; in von Bar's theorj% 509 ; in Meyer's theory, 513. Revolution, the French, French reforms of the period, 315-324; German reforms of the period, 325-332. Right, Hegel's discussion of, 463. Röder, his theory of criminal law, 446. Roffredus, 206. Romagnosi, his theory of criminal law, 436. Roman criminal law, influence of religious element in, 7 ; not a theocratic system, 10 ; early sup- pression of vengeance in, 11 ; "perduellio", 16; "mullae ir- rogatio", 17; contribution of, to the establishment of individual rights, 19; statutes, ^20, ?(. 12 ; jurisprudence of the Empire, 21 ; real explanation of arbitrary na- ture of, 21 ; law of Twelve "Tables, 22; power of the "pater- familias" as supplement to, 23; the censorship, 24 ; infamy, 24, 37; "actiones populäres", 25; other criminal legislation of the Republic, 26 ; statutes of the later Republic, 25; punishment in statutes of later Republie, 28; gradual change in tlie character of, 30; punishment by exile, 29, 31, 32; capital punishment, 28, 34 ; corporal punishment, 35 ; imprisonment, 35 ; liard labor, 36; other methods of puni.sh- ment, 37 ; the range of, 39 ; lese majeste, 41 ; as affected by class privilege, 45 ; as affected by administration of justice by State officials, 47 ; disregard for the criminal in, 48 ; reversion in the Empire to more primitive con- ditions, 49; influence of jurists in, 50; deterioration of, in later Empire, 52 ; influence of Chris- tianity on, 52, 54; last stages of, 55 ; reasons for its reception hy Germany, 202; defects of, 204; 559 INDEX rooeption by the Netherlands, ;i()2. lloman, conception of the relation of the individual to the State, 17 ; philosophy and criminal law, 389. Rossi, his theory of criminal law, 453. Rothe, 469, n. 23. Rousseau, J. J., 412. Royal ban, 73. Riimelin, 523, n. 9. Sacrilege, 279. Saxony, Criminal Code of the King- dom of, 345. Scandinavia, early customary law, 1 19 ; primitive feuds and kin vengeance, 120; private fines, 121 ; system of public and private fines, 126 ; limitation of private vengeance, 122 ; Church mulcts 124 ; the provincial Codes, 125 growth of public authority, 125 procedure, 127 ; accessories, 129 elements of the money forfeitures 130; outlawry, 134, 141, 293 other public punishments, 137 penal legislation 1300-1500, 139 market-town laws, 140 ; in the 1500 s, 291; private vengeance prohibited in, 291 ; penalties in the 1500 s, 293 ; legislation in the 1600 s, 294. See Denmark, Fin- land, Norway, Sweden. Scepticism, 389. Schleiermacher, 467. Schopenhauer, 487, 515. Schrassert, J., 307. Schulze, G. Ernst, 441. Sehwarzenberg, Freiherr Johann von, 208, 304. Seber, 501, n. 3. Secrecy in crime, 70. Self-defense, 97, 125, 144, 152, 418, 436, 479. Self-help, 143. Self-redress, 97, 123, 144. Servile labor, 274. Servin, his theory of criminal law, 418. Settlement, 234, n. 3. Simony, 280. "Sippe ", the, 58. Socrates, 382. Sodomy, 183. Sonnenfels, Von, 416. Soothsaying, 45. Sophists, the, 381. Sorcerv, 45, 183, 279. Sortilege, 279. Sparta, criminal law of, 6, n. 7. "Special prevention" theory, 416, 420, 427. Spec, Friedrich von, 243. Si)in()za, 404. Spiritual treason, 279. Stahl, F. .]., 464. State, relation of the individual to, the Roman conception, 17; rela- tion of the individual to, the (lermanic conception, 18; ad- ministration of justice through officials of, 47 ; punishment a right of society rather than of, 510 ; transference of right of punish- ment to, 510. Steltzer, his theory of criminal law, 441. Stoics, the, 388. Stooss, Professor, 375. "Strafe", 547. Subordination of the individual, 5. Suicide, 104, 187, 286. Supplementary punishments, 37. Suspension, church punishment, 91. Suspension of sentence, 342. Sweden, 368. Swindhng, 110. Switzerland, the common law of the later Middle Ages, 142 ; pledged peace and commanded peace, 142 ; crimes, 144; penalties, 144; the Reformation period, 297 ; the 1700 s, 298 ; traditional ideas of Swiss criminal law sur\i\ang in the 1800 s, 299; Codes in the 1800 s, 370. "Taidigung", 114, 220. "TaUo", in Twelve Tables, 13; Mosaic criminal law frequently based on, 93 ; predominant in South Germany in Middle Ages, 108 ; in Switzerland, 145 ; in reign of Frederick the Great, 251 ; in Scandinavia, 296 ; rejected by Pufendorf, 407 ; accepted by Coc- ceji, 410 ; E. von Hartmann's view of, 491 ; in beginning of criminal law, 505. Temporal treason, crimes of, 281. Theft, in Roman law, 14, 15, 40; and secrecy, 70 ; death penalty for, in Germanic law, 108. x. 8; penalties for. in Scandinavian law, 138 ; grand and petty larceny, 138 ; in mecUeval French law, 160, 161, 171 ; in France from the 1500 s to the Revolution, 287. Theology, bigoted, in the 1500 s in Germany, 226 ; emancipation from, in' the 1700 s, 244; modern tendencies, 464. "Theresiana", the Austrian, 249, 311. 560 INDEX Thibaut, 433, 519. Thomasius, Chr., 243, 311, 411. "Threat of law, deterrence through ", theory of, 429. Thiiringian Code, 346. Tort and crime, 524 ; Hegel's dis- tinction, 525 ; Hälschnor's dis- tinction, 526 ; Merkel's distinc- tion, 528 ; relation of, 528. Torture, 117, 157, 180, 269, n. 3. Town Codes, 140. Tradition, consideration of, in pun- ishing, 518, 520. "Transactio", 234, n. 3. Transgressions, 330 ; according to the Prussian Code of 1851, 350 ; minor, 526. Treason, in medieval German law, 101 ; in medieval French law, 161, 163 ; crimes of temporal, 281 ; high, 282. See Lese Majeste, Perduellio. Trendelenburg, 470. Twelve Tables, law of, 11, 13, 14, 15, n. 16, 22. Unchastity, 228, 244. Unification of law, 353, 374. Universities, the, 246. Usury, 184, 288. Vagrancy, 175. Vengeance, source of criminal law, 5, 479 ; servant of higher ideal, 6 ; blood, 6, n. 6, 120 ; early suppres- sion of, in Roman criminal law, 11-16; prominence of, in primi- tive Germanic criminal law, 57 ; limitations of, 120, 122 ; in pro- \incial Codes of Scandivania, 125 ; public and private, in medie\-al French law, 150; private, prohib- ited in Scandinavia, 291 ; Grotius' theory of, 399 ; as an expression of disapproljation, 509. " Verfestung", 112. Voet, Joh., 307. Vogt, J. H., 368. Voltaire, 311. Voorda, Professor B., 307. Vouglans, Aluyart de, 318, n. 12. Welcker, 447. Whipping, form of punishment, 190. Wieck, Von, 455. Wieland, E. C, 419. Wier, Johannes, 310. Witchcraft, 45, 183, 279 ; trials, 226 ; gradual suppression of, in the 1700 s, 243 ; in Scandinavia, 294, 295, 296 ; in the Xetheriands, 309. Wolff, Christopher, 411. Workhouses, 237. "Wormser Reformation", the, 207. Wounds, 133, 167. Wrong, Hegel's discussion of, 463 ; Köstlin's discussion of, 474 ; de- fect of Hegel's theory of, 498. Wiirtemberg Criminal Code, 345. ZachariX, C. S., 451. Zurck, E. van, 307. Zypaeus, F., 307. 561 UC SOUTHERN REGIONAL LIBRARY FACILITY Date Due f .R 7 '60 TAß^^^^ ^ 'f^AR 3 1 JUN NOV 1 3 mt -üt^^ "JÄN~n^ JM 'X- ^ -MAIV 49Za iSIl tir^ Fwrz -T§7^ c inT" y Ji ll go '7S -2.'^^ -g— töOü i,u.i MAR 2 3 1983 aoTT^E Library Bureau Cat. No. 1137 ^ AA 001 142 606 1 3 1210 00400 8346 Em^^ fe''«ß Wm m :0. i mmrni-'M: m'm ■mrnm. mm n mM> m^