THE ORIGIN OF CRIMINAL LAW. 445 



tion of the fact is aflforded by the Swedish law, which not only threw 

 the protection of the court around the accused while he negotiated 

 with the adverse party for composition, but in case of the rejection of 

 his reasonable overtures restored him to libei'ty with the right to carry 

 full arms, and to defend himself against his enemies as well as he 

 could. The custom very widely prevailing, by which a party found 

 guilty of crime is delivered by the court to the prosecutor, to be ex- 

 ecuted or otherwise disposed of at his pleasure, is obviously an out- 

 growth and incident of the original protective function of courts, and 

 wherever found is indicative of the former prevalence of that kind of 

 judicial interference. This may be said to be the universal method 

 of execution among such of the barbarous tribes as have attained to 

 any judicial investigations at all. The same is generally true of Mo- 

 hammedan countries. 



Even in England, until as late as Henry IV., it was the custom in 

 appeals of felony for the appellor and his kindred to drag the con- 

 victed appellee to the place of execution. 



For the time employed in the trial, and the protection afforded by 

 it, a reasonable compensation, called Fredum by the Germans, was 

 usually paid by the accused to-the judge or king. Under the Koran 

 this debt of gratitude took a peculiar form. In order to compound 

 for murder it was necessary not only to satisfy the family of the de- 

 ceased, but also to ransom a brother Moslem from captivity. It is not 

 difficult to understand how impositions of this sort, exacted at first for 

 time consumed and protection afforded by the state for the accused, 

 might readily adapt themselves to and even assist in the development 

 of criminal law, by gradually assuming the character of fines for the 

 offenses charged. Another line of progress of importance in some 

 societies consisted in a gradual enlargement of the classes of offenses 

 in which the king or state was supposed to have such an immediate 

 interest as to justify a claim to a part of the composition money. 

 Thus an injury to the person or property of any of the king's house- 

 hold, retainers, officers, or agents, was early construed to be an injury 

 to himself. So, likewise, with wrongs committed against the guests 

 of the king or persons of a household by whom he was entertained ; 

 or violence committed in the immediate presence of the king or in his 

 castle, and afterward in the city or province where he was residing ; 

 or under other circumstances which, within the slowly expanding ideas 

 on the subject, could be construed as involving an offense against the 

 king's peace or dignity. It is an observation of M. Say that, in every 

 branch of knowledge, example has preceded precept. So it was in the 

 early history of criminal law. To a very great extent it was practiced 

 before its theory w^as conceived or its first principle formulated. It 

 was only after its judicial machinery had been developed by such 

 random or diverse considerations, and for such special purposes as 

 those heretofore enumerated, and after the people were thereby famil- 



