THE ORIGIN OF CRIMINAL LAW. 435 



ited sphere are absolute, and are rigorously exercised in the punish- 

 ment of treason, cowardice, desertion, and military insubordination or 

 inefficiency. This is the extent of their criminal law. 



Acts of violence by one person upon the person or property of 

 another are not punishable, since the suppression of such acts is not 

 among the purposes for which such a government is organized. But, 

 for the treasonable or military offenses of which they do take notice, 

 penalties are imposed upon the true theory of criminal jurisprudence, 

 to uphold the government or to aid its efficiency. 



It is, therefore, in this class of offenses that ci'iminal law must 

 have had an early but meager origin under the military confederations 

 to which the most primitive societies intuitively resort. 



It might be supposed that communities thus familiarized with the 

 punishment of crime by public authority would rapidly develop a 

 criminal jurisprudence by the simple and direct process of adding 

 from time to time new crimes, pei'haps in the order of their supposed 

 enormity, to their catalogue of offenses. There are some tribes so 

 circumstanced as at first glance to countenance this view — tribes, for 

 instance, which, while not taking cognizance of ordinary offenses, are 

 known occasionally to prosecute notoriously hardened or habitual 

 offenders against the persons or property of their fellows : the mur- 

 derers of general favorites, obnoxious medicine-men, or persons guilty 

 of grossly impious or sacrilegious acts, or acts involving the people in 

 intertribal controversies. 



But it will be observed that in none of these cases does the con- 

 certed action against the offenders proceed upon the notion that it is 

 the function of government to protect its citizens against crime. It 

 is induced in each case simply by a widely prevailing feeling of per- 

 sonal resentment or fear. The murderer of the popular favorite falls 

 a victim not to any theory of government, but to the sense of individ- 

 ual injury and loss shared in common by all the members of the com- 

 munity. The habitual offender is pursued in some such spirit as that 

 in which we shoot down a pirate ; not as a violator of law", but as an 

 acknowledged enemy of all mankind. The medicine-man, the sacri- 

 legist, and the offender against neighboi'ing tribes, fall victims to the 

 terror they inspire, the one by his reputed affinity with the powers of 

 darkness ; the second by his provoking, as is supposed, an indiscrimi- 

 nate visitation of divine wrath ; the third by subjecting all his fel- 

 lows to the hostility of adjacent tribes. They are not so much pun- 

 ished as sacrificed : the first two to avert the wrath of Heaven ; the 

 third to appease the offended tribes. These sporadic and personally 

 revengeful or propitiatory punishments throw little if any light on the 

 development of the law of crimes. They are not an essential part of 

 that movement — the most important, interesting, and difficult in the 

 history of criminal jurisprudence — by which society abandoned its 

 original assumption that acts of violence or fraud between individuals 



