THE ORIGIN OF CRIMINAL LAW. 441 



has derived its strength from the considerations lying at the root of 

 these Mosaic regulations. For although the absolute exclusion of vio- 

 lence from sacred precincts may have been originally suggested by 

 religious sentiment, the widespread and tenacious application of the 

 principle to criminal refugees must be mainly ascribed to the necessity 

 so widely experienced of interposing obstacles to the avenger of blood ; 

 as is perhaps indicated by the circumstance that, as the exercise of 

 avengement has been superseded by public prosecutions, the right of 

 sanctuary has almost uniformly fallen into disrepute. Analogous in 

 origin and aim to the right of sanctuary are the customs quite various 

 and widely prevailing by which avengement has been prohibited during 

 certain sacred seasons or occasions. Among the Swedes, for example, 

 the Church contributed, as described by Geijer, to the abolition of 

 blood-feuds by declaring all holidays and periods of some length at 

 the great festivals consecrated to peace ; and, ultimately, by throwing 

 a similar protection over the sowing and harvest times. The Frisian 

 was not to be molested by the avenger while going to or returning 

 from church. There are some tribes of American Indians with whom 

 all crimes except murder are buried in oblivion by the yearly sacrifice ; 

 so that the mention of them, or of any occurrence which brings them 

 into recollection, is forbidden. If a Kenisteno chief wishes to settle 

 any difference between his people, he announces his intention of open- 

 ing his medicine-bag and smoking in his " sacred stem " ; and no man 

 who entertains a grudge against any of the party there assembled can 

 smoke with the sacred stem. 



The tenacity with which men clung to their right of personal re- 

 taliation can not be too strongly emphasized. When, by the demoral- 

 izing prevalence of feuds, society was first awakened to the necessity 

 for taking measures to mitigate or suppress them, it is undoubtedly 

 true that even if there had been a general willingness to abandon pri- 

 vate revenge in favor of public prosecutions, the men of that period 

 were incapable of either conceiving or executing so comprehensive a 

 remedial scheme. 



On the contrary, without any thought of the ultimate displacement 

 of their revenge, they sought by various devices only to mitigate its 

 excesses. But that displacement was made doubly difticult and the 

 movement by which it was accomplished was in its details controlled 

 by the stubbornness with which, even after comprehending the possi- 

 bility of the new system, the people insisted upon adhering to their 

 rights under the old. If further evidence or illustration of these truths 

 is desired, it can be abundantly gathered from the sketch which it is 

 now proposed to give of some of the steps by which societies, in their 

 efforts to control the avenger and regulate avengement, were slowly 

 and at first unconsciously led toward the cardinal doctrine of criminal 

 jurisprudence, that it is the function of government to protect by suit- 

 able penalties its citizens in person and property from the violence and 



