442 THE POPULAR SCIENCE MONTHLY. 



fraud of one another. " In order that revenge might not continually 

 generate new revenge," says the historian of the Swedes, "the law es- 

 sayed its earliest exercise of authority in reconcilement." At a time 

 when murder was a purely private wrong, of which government took 

 no cognizance, and the right of retaliation was thought too sacred for 

 government to deny, the public interested itself only by discouraging 

 revenge through the agency of public opinion, and by inviting and 

 recommending pecuniary compositions with wrong-doers at rates which 

 were usually fixed by law or custom, without, however, assuming to 

 coerce either party into a settlement. Under such circumstances, if 

 the avenger accepted the sum fixed by law as the price of composition, 

 and afterward also took his revenge, this, as Montesquieu says, re- 

 ferring to the law of the Lombards, contained a public as well as a 

 private offense ; was a contempt of the law itself — a crime which the 

 legislators never failed to punish. Later, the law, in order to avert 

 feuds, declared it a crime to refuse to offer or accept pecuniary compo- 

 sition for murder. Government, while it had not yet undertaken to 

 prevent or punish ordinary murders or larcenies, had been driven to 

 apply itself to the suppression of feuds ; and the withholding or rejec- 

 tion of composition money tending to defeat its efficient discharge of 

 that function had the properties of a true crime, and was promptly 

 recognized and punished as such. That pecuniary compositions for 

 bloodshed were everywhere first made obligatory, rather to avert feuds 

 than to punish wrong-doers, is attested by a great variety of circum- 

 stances. For instance, in fixing the amount to be paid in composition, 

 the chief and usually the sole question or criterion seems to have been, 

 What sum will offer to the avenger a sufficient inducement to forego 

 his revenge ? Rotharis, in the law of the Lombards, declares that he 

 had increased the compositions anciently accustomed for wounds, to 

 the end that, the wounded person being satisfied, all enmities should 

 cease. LTpon the same principle is to be explained the well-known ten- 

 dency of early laws to adjust their penalties with principal regard to 

 the aggrieved person's probable degree of exasperation at the time of 

 detecting the wrong-doer. 



The law of the Allemans, which, while undertaking to enforce com- 

 positions for stale offenses, conceded to injured parties the privilege 

 of righting themselves on the spot and in the first transport of pas- 

 sion, finds a counterpart in the curious and yet under the circum- 

 stances perfectly natural distinction made in the Twelve Tables be- 

 tween manifest and non-manifest theft. Persons detected in the act 

 of stealing, or with the booty in their possession, were liable to the 

 punishment of death if slaves, and, if freemen, became thereby the 

 bondmen of the owner of the property ; while, if detected under other 

 circumstances, they were only obligated to refund double the value of 

 the stolen property. The marked incongruity, from a modern stand- 

 point, of these two punishments was supposed by Montesquieu to have 



