436 THE POPULAR SCIENCE MONTHLY. 



are purely private grievances to be redressed by private remedies, and 

 charged government with the function of protecting its citizens from 

 such wrongs through j^roceedings conducted and punishments admin- 

 istered in its own name. The secret of that movement and the influ- 

 ence by which its progress was shaped can be gathered only from 

 study of the antecedent practice of private retaliation. For both by 

 its weakness and its strength the old system exercised a controlling 

 influence over the development of the new. It was at once the chief 

 inducement to the change and the chief obstacle to its accomplish- 

 ment. In so far as public authority assumes by penal remedies to pro- 

 tect individuals from the criminal acts of one another, it was first 

 called into existence, not by ordinary wrong-doing, but by an effort to 

 restrain the abuses and excesses of retaliation as a remedial system. 

 Its subsequent extension so as to displace the avenger and assume the 

 punishment of wrong-doers generally was an afterthought. Thus the 

 movement had its origin in a desire rather to mitigate punishments 

 than to insure or increase them. 



That this was true in the history of the Germanic tribes was long 

 ago pointed out by Montesquieu with characteristic learning and in- 

 genuity in his " Spirit of the Laws." He regarded it, howevei", as an 

 experience peculiar to the Germans : to use his own language, " as 

 contrary to the practice of all other nations." In this he was mis- 

 taken. The Germanic line of progress in criminal law, as it was point- 

 ed out by Montesquieu, instead of being unique, is substantially that 

 which must have been pursued by all primitive communities with pos- 

 sibly rare and insignificant exceptions. Not only is this proposition 

 justified by an examination of the actual processes of legal develop- 

 ment among all races presenting the materials requisite for such an 

 inquiry, but an analysis of the inducing causes among the Germans 

 of this phase in their legal development will show them to have been 

 such as were universally prevalent among mankind, and such as must 

 have operated with remarkable uniformity. 



It is to the illustration of these propositions that this paper will be 

 mainly devoted. So far was the practice of private retaliation from 

 being a preservative against crime, that it universally propagated 

 more violence than it restrained. Under the most favorable circum- 

 stances, its punishments, being administered without an authoritative 

 proceeding for the ascertainment of guilt, must frequently have fallen 

 upon those who either were in fact, or by their relatives were thought 

 to be, innocent. From this single infirmity of the system there must 

 have arisen great numbers of bloody feuds, each having a tendency 

 to propagate itself through generations. It also appears that, even in 

 cases of acknowledged guilt, it was the custom in some communities 

 for the family of an offender to protect him against the avenger, and 

 to resent an attack upon him as an original injury. A family feud 

 must then have inevitably ensued from every wrongful act of violence. 



