THE ORIGIN OF CRIMINAL LAW. 443 



originated in Lacedaemonian theories of theft, and to have been handed 

 down from ages when the crime of stealing was a small matter com- 

 pared with the blunder of being found out. In other words, that the 

 real crime consisted in being detected, and that hence, the longer de- 

 tection was postponed and the more effectually the booty was disposed 

 of or concealed, the lighter was the penalty imposed. Whatever may 

 be said of the accuracy of this explanation, its ingenuity can not be 

 denied. 



On the other hand, Sir Henry Maine traces the widely discrepant 

 penalties under consideration to a tendency, on the part of early ad- 

 ministrators of justice, to "simulate" the probable acts of persons 

 engaged in a private quarrel. "It is curious to observe," he says, 

 " how completely the men of primitive times were persuaded that the 

 impulses of the injured person were the proper measure of the ven- 

 geance he was entitled to exact, and how literally they imitated the 

 probable rise and fall of his passions in fixing the scale of punish- 

 ment." 



Viewing these provisions of the Roman code in connection with 

 other primitive laws, there can be no doubt that their scale of penal- 

 ties was graduated, not with reference to the vengeance the injured 

 party should be "entitled to exact," but with reference to the least 

 amount of punishment by which, under given circumstances, he could 

 probably be appeased. Pecuniary compositions for bloodshed, pre- 

 vailing, as they presumably have, at some period in the history of 

 every race, can not indeed be accounted for on any theory of punish- 

 ment. They were conceived and established for purposes of pacifica- 

 tion, apart from considerations of punishment or discipline. Blood 

 for blood is an instinct of human nature ; it is the justice which 

 among every race was meted out with unsparing hand by the kindred 

 of the slain when the burden and privilege of redi-ess were upon them, 

 and again by the state when she assumed the punishment of crimes. 

 Pecuniary compositions prevailed only in the enforced absence of 

 truly primitive remedies during that transition period when govern- 

 ment was too wise to countenance the avenger, and not wise enough, 

 or too feeble, to administer penal justice. It must be admitted that 

 compulsory compositions, after they had superseded the practice of 

 retaliation, came ultimately to be maintained with a view largely to 

 the punishment and prevention of wrong-doing, and by a kind of in- 

 ertia were carried over into periods capable of sustaining a true crimi- 

 nal law and already in the partial enjoyment of it. Even then, how- 

 ever, they proceeded upon our theory of damages against tort feasors. 

 They were never at any time entitled to a place in the law of crimes. 

 Returning from our digression, it is to be remarked that the adoption 

 by the state of regulations for the control of parties at feud necessi- 

 tated public prosecutions and punishments in order to insure their 

 observance. One of the earliest methods of mitigating feuds was to 



