William Weldon Billson

“ But, during the ages when men were as ignorant of the processes of legislation as they were implacably hostile to the theory of innovation upon which nearly all legislation proceeds, the only alternative was between an absolutely unprogressive condition of the law and an effort to bring it into harmony with the requirements of an ever-advancing society by a resort to such methods of amendment, however vicious or clumsy, as had then been efficiently evolved. ”

“ 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. ”

“ Nor does the modern mind display in any respect a more marked contrast with the ancient than in its keenness to detect and swiftness to repudiate everything in the nature of a quibble. No one, for instance, would now admit that, conceding Shylock's right to the pound of flesh, he should be held to incur death if, waiving a part, he took less than was called for by his bond. ”

“ To leave such rules nominally intact, and at the same time to indefinitely curtail or enlarge their operation by the withdrawal or addition of particular classes of cases through judicial construction, was a mode of legal amendment eminently adapted to the genius of such communities, and fruitful of many beneficent modifications of the law. It was a matter of minor consequence whether such modifications were effected by sound arguments or quibbles. In an age habituated to the amendment of law by legislation, nothing can be said in defense of the vicious practice of judicial quibbling. ”

“ In order to secure an accurate conception of the legal system, the early growth of which it is proposed to examine, it may be well to premise that the criminal law, which with a substantial uniformity of cardinal ideas now prevails in all civilized states, is well defined as "that branch of juridical law treating of those wrongs which the government notices as injurious to the public, and punishes by what is called a criminal proceeding, in its own name." ”

“ The tenacity with which men clung to their right of personal retaliation can not be too strongly emphasized. When, by the demoralizing 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 private revenge in favor of public prosecutions, the men of that period were incapable of either conceiving or executing so comprehensive a remedial scheme. ”

“ If most nations have outgrown the system without suffering so extreme wretchedness from its prevalence among them, it is to be ascribed to the promptness and ingenuity with which they have applied themselves to its modification. Instead of being, as has been considered, a necessary though rude expedient of primitive communities for the suppression of crime, it was from the beginning and under all circumstances preeminent in its fruitfulness of violence and disorder. ”

“ The fact that, notwithstanding this, the world has finally settled down upon a serious or pathetic interpretation of Shylock's character, and of the trial-scene, and exhibits a disposition, by repudiating the last scene of the play and by a variety of other expedients, to exorcise the comedy element, is certainly a high tribute as well to the irrepressible charm and dramatic quality of the old form of the story as to the overmastering power with which Shakespeare has told it. ”

“ It is true that within historic times the creditor, in many instances, derived the authority for his atrocities, not from the stipulations of his contract, but from general provisions of law. The Roman law, under which a creditor could, at his option, put his defaulting debtor to death or sell him as a slave into a foreign land, and the several creditors of an insolvent could hew his body in pieces and divide it between them, is a fair example of the almost incredible inhumanity of the early law toward this unfortunate class. ”

“ Nothing belonging to their enemies is safe from their vengeance. If even a fowl strays from its owner into the grounds of another, it is sure to receive a bullet from the adversary's tower. So constant are their feuds that it is a well-known fact that the village children are taught never to walk in the center of the road, but always from force of early habit walk stealthily along under cover of the wall nearest to any tower." These, it must be conceded, are extreme cases; yet they are a perfectly logical outgrowth of unaided and unhampered private retaliation. ”

“ But it will be observed that in none of these cases does the concerted action against the offenders proceed upon the notion that it is the function of government to protect its citizens against crime. It is induced in each case simply by a widely prevailing feeling of personal resentment or fear. The murderer of the popular favorite falls a victim not to any theory of government, but to the sense of individual injury and loss shared in common by all the members of the community. The habitual offender is pursued in some such spirit as that in which we shoot down a pirate ”

“ For, even when ancient societies sought to discourage contracts made in contravention of law, morals, or public policy, it was their practice not to deny their validity but to rely for their suppression upon penalties denounced against parties who should enter into them. ”

“ The inducements to crime in a primitive community are too weak and public opinion is too strong to admit of the rapid growth of criminal practices. Offenses against property necessarily partake of the scantiness of property itself. If, however, through the prevalence of an especially quarrelsome disposition in any tribe, altercations and murders increase in numbers, the far greater calamities of retaliation are aggravated in the same proportion, and, where one life is taken in original altercation, whole families and generations are consumed in retaliatory feuds. ”

“ If it is desired to ascertain the point at which public authority began to supersede private revenge in the punishment of wrong-doers, it is worthy of observation that instances abound of tribes among whom the only offenses punishable by public authority are treason and its cognates, such as cowardice and desertion. ”

“ But, as under most primitive codes of honor, so among the early Israelites the principle of blood-avengement was so malignant as to require retaliation even against the involuntary man-slayer. The instrument of death, whether man or beast, the avenger was in honor equally bound to destroy, without reference to the malicious or accidental character of the homicidal act. The flagrant injustice of punishing with death involuntary acts void of moral guilt, was in the Mosaic age, probably as manifest to large numbers of the Israelites as to Moses himself ”

“ When all property was vested in the village tribe or gens, the individual really had nothing he could call his own except himself and his family. The idea that the creditor's remedy was exclusively against the person, being thus engendered, would, through the sluggishness of the primitive intellect, continue to subsist long after its original cause had been removed by the institution of individual property. ”

“ 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 circumstances, 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. ”

“ The reform of law by judicial construction, however forced and illogical, being a much more familiar and agreeable process than amendment by legislation, the art of quibbling, of drawing distinctions where there was really no difference, and of detecting resemblance though there was no essential similitude, was employed with no inconsiderable effect in contracting or enlarging the operation of legal principles ”

“ Acts of violence by one person upon the person or property of another are not punishable, since the suppression of such acts is not among the purposes for which such a government is organized. But, for the treasonable or military offenses of which they do take notice, penalties are imposed upon the true theory of criminal jurisprudence, to uphold the government or to aid its efficiency. ”

“ Apart from the violence proceeding from blood feuds, the unfrequency among such tribes of most of the acts we consider criminal is very noteworthy. The great mass of offenses, whether against person or property, which disgrace and disfigure civilization, are the product of evil passions engendered by the exasperating inequalities of condition which are unknown to the experience of uncivilized races. ”

“ IT is a matter of common knowledge that Shakespeare's story of the bond for a pound of flesh is not of his own invention, but is merely a modern and dramatic version of a very old tale which, with slight but frequently significant variations in form, had already become the common property of many nations, East and West. ”

“ Among the laws governing the concurrent evolutions of thought and language, there is one not yet fully definable, but unmistakably discernible in its effects, by which for ages the human mind was irresistibly addicted to the drawing of irrational verbal distinctions or analogies. ”

“ They are not an essential part of that movement—the most important, interesting, and difficult in the history of criminal jurisprudence—by which society abandoned its original assumption that acts of violence or fraud between individuals are purely private grievances to be redressed by private remedies, and charged government with the function of protecting its citizens from such wrongs through proceedings conducted and punishments administered in its own name. ”

“ Assuredly it is hard to distinguish in the mere fact of indebtedness, in the simple relation of debtor and creditor, anything which could have suggested the investment of the creditor by law with the unnatural power which we find him enjoying. That power, it is far more reasonable to suppose—indeed, the supposition affords the only plausible explanation of it—was originally claimed by the creditor as Shylock claimed his pound of flesh, only by virtue of the condition of his bond ”

“ When King Alfred, outstripping the age in which he lived, and probably inspired by the example of Moses, denounced against willful murderers the punishment of death, his law was a dead-letter, and remained unexecuted during his own reign and those of several of his successors. The people preferred to redress their own grievances. ”

“ Again, the injured family in most instances claimed a right of revenge not only against the offending individual, but, in his absence, against any member of his family—a claim which was naturally and uniformly denied and resisted. In some societies the avenger seems to have thought it incumbent on him not only to take life for life, but to take two or more for one. Among the Congo people, according to Tuckey, if one be killed by an inferior, his family proceed to put all the male relatives of the guilty party to death. ”

“ It is in this tendency that we find the key to much that is otherwise unaccountably harsh, technical, or absurd in early judicial remedies and procedure. Whenever any recognized legal right came to be regarded as unconscionable or otherwise objectionable, rules adapted to hamper or imperil the complainant in the pursuit of his remedy were sure to spring up. ”

“ There are many of the American Indian tribes among whom the exercise of public authority for the protection of the person or property of individuals from injury is unknown, who yet in times of war organize a temporary government by the election of a military chieftain whose powers within their limited sphere are absolute, and are rigorously exercised in the punishment of treason, cowardice, desertion, and military insubordination or inefficiency. ”

“ The scientific value of a good story as a clew to the institutions, the intellectual and social life of the people among whom it originated, or in whose hands it has undergone modification, is now so well understood that to collect, anatomize, and interpret recently despised folklore, romances, anecdotes, and ballads, is a recognized function of modern scholarship. ”

“ Later, the law, in order to avert feuds, declared it a crime to refuse to offer or accept pecuniary composition 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 rejection 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. ”