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A History of Continental Criminal Law (Bar)
A History of Continental Criminal Law (Bar)
A History of Continental Criminal Law (Bar)
Ala
THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
RIVERSIDE
THE CONTINENTAL
LEGAL HISTORY SERIES
Volume Six
A HISTORY OF CONTINENTAL
CRIMINAL LAW
Law
Association of American
I.
Schools
XL
in.
By arrangement
the
IV.
New York
Bar.
$5.00
net.
Brissaud, late
net.
By Rudolph
V.
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by Dr. Francis
New
HISTORY OF CONTINENTAL CRIMINAL PROCEDURE. By
VI.
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Translated by
Thomas
S.
net.
By
Arthur Engelmann,
VIII.
IX.
Translated by
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net.
X.
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late of
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XL
J.
James W. Garner,
Translated by
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ASSOCIATION OF AMERIC.\N
LAW SCHOOLS
A HISTORY OF CONTINENTAL
LAW
CRIMINAL
BY
AND OTHERS
TRANSLATED BY
THOMAS
S.
BELL
AND OTHERS
WITH AN EDITORIAL TREFACE BY
JOHN
PROFESSOR OF LAW
II.
WIGMORE
NORTHWESTERN UNIVERSITY
IN
AND INTRODUCTIONS BY
AND UY
EDWIN
PROFESSOR OF LAW
LITTLE,
IN
R.
KEEDY
BOSTON
BROWN, AND COMPANY
19IG
B37,
Copyright, 1916,
By
EDITORIAL COMMITTEE
OF THE
LAW SCHOOLS
ASSOCIATION OF AMERICAN
Joseph H. Drake, Professor
Law
of
in
the
University of
Michigan.
Wm.
Minnesota.
E. Mikell, Professor of
in
of
Law
sj'lvania.
Professor of
Law
in
Northwestern
University.
LIST OF TRANSLATORS
Thomas S. Bell, of
James W. Garner,
of
Law
in
Northwestern University.
New York
Francis
S.
Layton
B. Register, Lecturer on
Philbrick, of the
Bar.
Law
in the University of
Pennsylvania.
No piece of History is true when set apart to itself, divorced and isolated.
It is part of an intricately pieced whole, antl must needs be put
in its place in the netted scheme of events, to receive its true color and
estimation.
are all partners in a common undertaking,
the illumi-
We
and
mason
self
tell
but a piece of
it
must
feel
that his
first
fabric."
own
ix
tincntal
familiar one to
own
are studious to
is ripe.
During the
know
last
modern
critical
ourselves,
interest in the
To
who
The time
law.
j)ean scholars
of
all
legal
obstacle
is
That the
institutions.
field,
the only
and
all
useful aids to
it
was pointed
in August, 1909:
"The
notable.
We
and
codification.
"
And
the Association:
by
two years in
and arranging for transIt resolved to treat the undertaking as a whole; and to
lations.
co-ordinate the series as to (1) periods, (2) countries, and (3)
topics, so as to give the most adequate survey within the space-
The
studying the
making
field,
selections,
limits available.
As
to periods, the
was
is
that a suitable history of Spanish law has not yet been \\Titten.
(3)
As
to topics, the
all five.
But
to repre-
sent these five fields under each principal country would not only
Germany)
chief country.
of
a volume covering
all five
parts of the
field.
For Public
Law
(the
was given
point with England, and
common
starting
and
legal
methods.
Finally,
tion of parts.
Literature,
Book
W.
F.
and a
F,
I of Sir
it
(corresponding to
Law
before
Edward
I ")
But
a co-ordinated
the various
fields as
endeavor to achieve
it
is
which should
Series,
collate
a connected whole,
it
is
and
fairly
cover
the
those
all
To numerous
scholarly advisers in
many
Europea-n universities
the
Law
(in
Northwestern LTniversity)
To
is
grateful
their
consent
has
been
cheerfully
Without
accorded
in
ex-
the
To
To
The accomplishments,
gratitude.
legal
xii
them
and commends them to the readers of these volumes with the reminder that without their labors this Series
of legal science,
and
historians alike.
xm
A HISTORY OF CONTINENTAL
CRIMINAL LAW
CONTENTS
PAGE
ix
xxix
xliii
xlix
PART
liii
ple
Home.
Proininence
Religious
Roman Law
ocratic
of
in
of
11
" Mnltaj
4.
" Perduello."
5.
Roman Conception
Element.
not a The-
System.
Suppression
3.
Vengeance
Crimes
hood
2.
of
Irrogatio"
1(3
of the
Early
Ven-
(ier-
geance
Snppression of Vengeance
in Cases of Homicide.
Con-
CONTENTS
tribution
of
Roman
Criniinal
Law
to the
Imprisonment. Hard
Labor. Other Methods
15.
The
16.
" Paterfamil-
17.
Supplement to
Criminal Law. The
18.
Circumstances Affecting
Criminal Law. Class
AdminisPrivilege.
7.
The Law
8.
Power
17
of Property
the
Real Expla-
Roman
...
22
Tables
of
ias " as
The
of
Punishment
of
Later
Opposition
20.
Influence of Christianity
50
Death
in the Later
...
Empire.
State
of
Sought by Numerous
Penal Statutes. Other
the
of
Law
Protection
in
30
in the Character
Effects
the
of
In-
of Exile as a Punish-
ment.
45
28
Criminal
Change
....
Conditions
19.
to
Character
more Primitive
sion to
26
for
Rever-
Republic.
Change
Gradual
Con-
tinued Disregard
45
by
of Justice
Officials.
the Criminal.
the
Penalty
12.
State
Statutes
in
43
tration
Republic.
Statutes
Later Republic
11.
23
41
tians
Infamy.
Censorship.
39
Lese
"
Majeste "
21
Twelve
of the
of Criminal
Law. Attempt
Crime of
Arbitrary
of
of
Nature
Criminal Law
10.
37
The Range
nation
9.
....
14.
The JurLsprudeiice of
Empire.
32
of Punishment
Infamy and Confiscation
...
6.
...
13.
Last
Increased Use
of
the
Criminal
Law
Stages
Roman
of Capital Punishment.
52
Corporal Punishment.
CHAPTER
II
Prominence
ment
of
Consideration
24. Little
Given to the J^lement
Explaof Intention.
nation of Lack of Con-
of the Ele-
Vengeance.
Punishment
22.
Special
Form
of
....
Relations
57
of
23.
LAW
sideration of
Element
of Intention.
Secrecy
25. Influence of
the
Capitularies
66
Kings.
67
of the Carolingians
xvm
68
Early
71
CONTENTS
26.
ment of
of
Slaves.
Loss
by Mass
TITLE
Effect
Freedom
of
of the People
73
II
III
27.
Excommunication as the
of
the
Foundation
Criminal
Law
of the
30.
upon
Influence
Criminal
Law
28.
The
of the
79
Disciplinary
inal
29.
Growth
Power
of the State
of
32.
Laws
of
Law
Criminal
the Church
of
....
90
Ideal of Divine
Heresy.
Clergy.
of
of the Criminal
" Poenae
VindicativjB." Defects
82
Criminal
of the Church.
Union
Medici-
and
nales "
of
Privilege
" PoenjE
ods.
the
Law
88
Law
Church. Its
Similarity to the Crimof
83
quisition
the
State
Law.
the Church
Ultimate Effect
Criminal
of the
of the
Law
...
Church
92
CHAPTER IV
MEDIEVAL GERMANIC LAW
33i
Mass
People
34.
"
Changes
of
Landfrieden "
Specific
meditation.
37.
Changes
of Proof.
103
in the
Arbi-
Inflic-
Effects of
Law
Crimes.
The
Moraliz-
ing Tendencies
96
Theory
in the
Treason.
95
The
35.
36.
of the
Law
101
XIX
104
CONTENTS
Term
having a Demoralizing
" Frieden."
Reversion
tive Conceptions.
Settlement in Cases of
Crime. The " Grace "
Se-
Law.
Application of Mosaic
Law. Cruelty of the
Punishments.
ure of the
39.
of the Rulers.
the
of
verity
Other
Peculiar Customs.
In-
Accidental
fluence of
Un-
Circumstances.
Fail-
Law
Private
Influence.
Primi-
to
107
Incidental Circumstances
Procedure
112
CHAPTER V
SCANDINAVIA AND SWITZERLAND IN THE LATER MIDDLE
AGES
A.
39a.
Kin Vengeance.
vate
Fines.
cessories.
Forty-Mark
Limita-
Three-Mark
and
Public
Punishments
Penal Legislation, a.D.
1300-1500.
Marketlic
^ 39c.
Town Laws
System of
125
139
.'
Switzerland
Commanded
of
Private
B.
(Peace
and
Causes.
ISlulcts
Elements of
Pri-
Church
geance.
39rf.
Private Ven-
tion of
396.
Scandinavia
Peace;
Crimes; Penalties)
142
Pledged and
CHAPTEE VI
FRANCE IN THE LATER MIDDLE AGES
39e.
of
General Features
Medieval
Criminal
Law in France
.
3,9/:
14G
Specific
Crimes
Wg. Punishments
...
....
161
187
CONTENTS
TITLE
III
CHAPTER
YII
manent Features of
the Germanic Law.
The Italian Jurists
4L Early Law Books Intro.
gensis
Law.
The
"
of
Local
Opposition.
Tlie
"
to
the
Re-
42.
The
Penalties
tion
of
ner
GERMANY
the
of
207
THE LATE
IN
217
VIII
1500
49.
Unfortunate
221
:\Iaj-
Other IllustraDespotism
.
51.
Scantiness
Law
tion.
232
of
Legisla-
Evasion of the
233
Carpzov
52.
226
229
XXI
230
223
Blas-
1600
Lese
Witchcraft.
phemy
"
50.
The Crime of
of the Rulers
Results
AND THE
tions of the
este."
Tolerance.
of the Reformation
48.
Publication.
Rela-
CHAPTER
Law
of
Bamber-
the
Religious
'21')
.
Varied Application of
the Carolina. General
Bambergensis.
Careless ^Slan-
gensis.
Italian
Legal Learning
Saving Clause"
211
44.
gensis
....
Bamberg
Bam-
richtsordnung."
the
of
Bambergensis Outside
202
Halsge-
bergensis
Baml)ergensis.
Recognition
ducing
the
Italian
Legal Doctrines into
German}'.
Intrinsic jNIerit
the
of
Local
the
to
TUE
IN
Rise
of
CONTENTS
Imprisonment as
Change
Penalty.
Law
...
of Troof
53.
Doctrines as to Judicial
Discretion in Defining
in
Crimes
237
241
CHAPTER IX
GERMANY
54:.
Beginnings of a Change.
Gradual Suppression
of Witchcraft Trials.
Emancipation
from
Theology and the Mosaic
Law.
Doctrine
55.
of
Effect
of
Law
of
Nature.
Signs of
Progress.
Kress and
Boehmer
The Universities.
56.
Law
1700
The
Austrian
Theresiana.
The Stat-
1751.
utes of Frederick II of
24S
Prussia
57.
of
243
Its Classifica-
The
The
58.
and Definitions
The Prussian Landrecht
and
59.
tions
Early Treatises.
New Theories of Criminal
THE
IN
in Italy
of 1794
246
France
251
254
of
257
1803
CHAPTER X
FRANCE, FROM THE
59.
TO THE REVOLUTION
Crime
Discretionary Character
.
No-
General
and
Classifica-
tion
259
System
tions
in
France
of the Penal
59c.
Roman
oQb.
1500
.59r/.
59e.
265'
Penalties in Use
The
268
Their Punishments
262
27&
CHAPTER XI
OTHER COUNTRIES
IN
THE
1.500
s-1700s
A. Scandinavia
59/.
1500 s-1700
Prohibited. Outlawry.
Penalties.
s.
Vengeance
Legislation
in the 1600 s.
XXll
...
291
CONTENTS
B.
Switzerland
PAGE
59.
Sources of Criminal
in the
Law
,
59-.
and
301
The
this Period.
Reform Movement of
of
the
Criminal Ordinances
298
Constitutio Criminalis
Carolina,
Netherlands
Netherlands be-
297
9y.
C.
59.
The 1700 s;
302
306
TITLE IV
THE
REVOLUTIONARY PERIOD
FREIs^CH
CHAPTER
XII
GOb.
The Code
of 1791,
and
CHAPTER
320
XIII
61.
62.
s.
325
1813.
328
Defects
TITLE V
MODERX TIMES
CHAPTER XIV
THE FRENCH CODE OF
1810,
ISOO
62a.
of 1810
335
AND FRANCE
IN
THE
62^.
xxiii
...
338
CONTENTS
CHAPTER XV
GERMANY
SINCE
1813
PAOE
G3.
The Code
of the Nortli
(Jerman
Confedera-
1800
tion.
of
Influence
s.
07.
of
Opposition
in
Reichstag.
Changes
1818
Legislation
The Code
Go.
348
Prussia.
in
of 18.51
Code
The Bavarian
68.
The
69.
Laws
The Draft
Criminal
Act of
Other Criminal
1876.
many.
of
Law
Criminal
Amendment
352
States
1869
355
pire
Other
of 1861.
the
343
Code.
66.
Character.
Feuerbach's Bavarian
Political Agitation of
01.
Its
359
Code
of
362
1909
many
353
CHAPTER XVI
OTHER COUNTRIES SINCE
A.
69rt.
Q9e.
364
....
Netherlands
C.
69rf.
Austria
B.
696.
1800
Denmark
Norway
First Period
69i.
Second
1848
368
to 1830
Period
69c.
Belgium
367
Scandinavia
367
D.
69A.
365
69/.
Sweden
368
69^.
Finland
369
Switzerland
370
69J.
1830-
Third
1848.
372
xxiv
Period
Political
since
Crimes
372
CONTENTS
PART
11
LAW
CHAPTER
71.
72.
CONTENTS
CHAPTEK
IV
and
Defects
Beccaria.
Merits
of
Work.
Latei- Writers.
ij
84.
413
Wieland
of
Filangieri
83.
Criticism
Kant.
Kant's Theory
85.
Beccari'a's
417
418
4"22
424
Fichte
8f).
427
Criticism
his
of
Theory
428
CHAPTEE V
CRIMINAL THEORIES FROM BENTHAM TO IIERBART
89.
Romagnosi's
Theory of Necessary
Benthani.
93.
"
Difference
Defense.
90.
Bauer.
tion "
91.
The
"
The Reaction
Deterrence.
Krause.
C. S. Zachari.
451
96.
Herbart's
Mittermaier.
441
Henrici
4.52
Retribution
Theory of ^Esthetic
Judgment. Geyer
Groos.
Ahrens.
447
95.
439
Theory of Reformation
DeFounded upon
terminism.
....
Henke
of
.
or
The-
Law.
against
Schulze
Hepp
"
Principle of Criminal
Admoni-
94.
435
Theory
Compensation
ory.
Romagnosi
between
and Feuerbach. Defects of the Theory of
Defense.
Necessary
Oersted
The
455
R442
der
CHAPTER
VI
98.
Tendencies.
Stahl.
Schleiermacher.
Daub
99.
460
Later Developments
of
Hegel's Theory.
Abegg. Heffter. Kstlin.
464
xxvi
ner.
Merkel.
Berner.
Hlsch-
Kitz
470
CONTENTS
100. Combination of the Theories
of Hegel and
Ficlite.
101.
Ileinze
Von Kirchmann.
penhauer.
E.
10"2.
of
482
dience
Scho-
Laistner.
Diihring,
Theories
Liszt
Theory
Binding's
inality
Kule.
to
Modern
of
Crim-
outside
of
Germany
486
492
APPENDIX
VON
BAR'S CRITIQUE OF
INAL
LAW
INDEX
407
.549
XXVll
EDITORIAL PREFACE
By JOHN
It
is
HENRY WIGMORE'
little
dance of
Of the
scantily,
that
Of public law
civil
is,
in
in general,
law, there
is
summary and
entire system, in
in
extended
And
its
detail,
attraction
most
of the so-
beyond
largely
without patronage.
One might speculate over this lack. The field is vast yet the
that is, it
others are vaster. The criminal law is younger,
separates distinctly from civil or pri^ate law at a period much
less than a thousand years ago
yet this should only make it more
;
There
is
in
criminal
to attract others.
Perhaps
has warned
it
is
off all
is
For
tlie
history of
itself, i.e.
the
whole epochs,
intent,
modes
of repression
and
1 Professor
of the Law of Torts and of E\ndenee in Xortliwi'stern
University; former President of the Amerioan Institute of Oimiiial Law
series.
and Crimmology Chairman of the Editorial Committee for
<
xxix
=-
EDITORIAL PREFACE
make
And
of course be non-existent.
ment
a fairly
is
of penal law
modern
device.
without prisons?
that
parchment
Upon
crimes.
is,
title-deeds
the
Three centuries
rise
later,
iarity
have proved
treaties
futile.
and
Different
little
bery.
temper
of these peoples.
XXX
in
the traditions
and
EDITORIAL PREFACE
And
it characterizes the
very modern times
presumably
as a part of the evolutionary view of history
has the method
changed. Of the few histories, those worth reading to-day are
fewer.
Perhaps we do not realize as we should that in Sir James
Fitzjames Stephen's "History of the English Criminal Law"
and Mt. L. Ow^en Pike's "History of Crime in England ", taken
this
in combination,
we
country possesses,
An
Only
historians.
earlier
penal methods
first,
and
in
movements,
its
Roman criminal
and Roman law
that
it
law,
For France,
no adequate modern volume. Du Boys' history (published in 1874), though sound in scholarship, is on the older lines.
Glasson's chapters in his eight-volume "History of French Law
and Institutions" (unfinished at his death in 1907) carry the
story only to the 1500s; Stein's "History of French Criminal
tries,
there
is
Law"
modern
of Calisse
tory of Italian
ment.
That
Law"
home
of
xxxi
most
of the
new movements
in
EDITORIAL PREFACE
cTiminal law
of its criminal
law
will serve as
the
except
on Spain"
Spanish in 1874), which
(pul)lislied in
Denmark
latter in
is
in 1872,
and
1893-7
Law
For Scandinavia,
is
(here used)
Du
French
by Stemann
its
Law on
Historical Principles"
(1906).
vivals
and to
This work
beginning
its
one in completion, nor trace the general movements of legislation. It is an earnest of the great possibilities
sive stages of each
skilda brotten", parts I-III (left unfinished at the author's death) begins
each chapter with a brief historical survey of the topic, but does not offer
moreover, it deals primarily with
a connected systematic treatment
;
Finland's law.
Albert Du Boys had indeed planned the work on a large and worthy
scale.
His "Histoire du droit criminel des peuples aneiens" (1845),
stopping at the Christian era, was followed by his "Histoire du droit
criminel des peuples modernes" (1854-1860)
Volume I for the Teutonic
period. Volume II for the feudal period. Volume III for England.
Then
came his "Histoire du droit criminel de TEspague" (1870), and "Histoire
du droit criminel de la France, XVr"''-XIX""' sieele, compare avec celui
de ritalie, de I'AUemagne, et de I'Angleterre" (1874, 2 vols.). But
his method was behind the times, even then
and the undertaking was
beyond his powers. The great conception and the forty years' toil were
for us fruitless.
And this futility of it gives us a sentiment of sadness
as we read his farewell preface, in which he announces the termination of
his task, "un plan si vaste, que parfois il nous a semble etre au dessus de
'^
nos forces."
xxxii
EDITORIAL PREFACE
of the subject
that
ing
all
Of
when
author
its
will
no complete
specific crimes
modern
Roman,
German
law, with
but the treatment is that of the older school, and there is no background and
no tracing of evolution. The latter work, a superb study of modern comparative criminal law m its definitions and policies, prefaces each chapter with a page or two of history for Roman and
medieval German and French law but these united pages would
not suffice as a connected history. After Makarewicz as a basis,
]\Iayer and Van Swinderen, perused together, would pro\ide the
student with an excellent makeshift, until an adequate history
in Greek,
modern Continental
brief references to
legislation
The
foregoing
is
written.
summary
will serve to
of the
why von
Bar's
work was
selected
It
by
may be
noted that the plan of choosing a treatise centering on one country, and of supplementing it by chapters for other countries, was
and
It
General Introduc-
Civil Procedure.
remains to
cite the
volume,
ing the
of this
" Esquisse
du droit penal,
xxxiii
EDITORIAL PREFACE
the 1500
xxxiv
EDITORIAL PREFACE
The Authors.
in
1S3G,
became professor
(1S79),
where he had taken his degree and where he remained till the end
His early interest was in criminal law
and the long
of his life.
list of his published works in that field extended to his closing
years.^
But he was led also into the study of problems of
international criminal law, and thence into international law
and in this field he acquired
at large, both public and private
an authority which led him to be known, in other countries,
chiefly as an international jurist.
His " Das Internationale Privatund Strafrecht" (1862) was here his first work, later expanded
as a "Lehrbuch des internationalen Privat- und Strafrecht''
(1892); and his "Theorie und Praxis des internationalen Pri;
vatrechts"
G. R. Gillespie) as
national
Law"
made
name
his
(2d ed.,
familiar
1892;
1st
Amer.
ed.
among English-speaking
Boston,
lawyers.
1883),
Indeed,
was on English soil, at Oxford, that his sudden death took place,
of
during the meeting of the Institute of International Law
which he had been one of the founders, forty years before. He
also possessed the distinction of being one of the members of the
it
XXXV
EDITORIAL PREFACE
pronounced liberal, and for a fewBut owing to his deep flisaffection to the Bismarckian policies (dating from his early years, as
a native of Hannover, where, before the German Empire was
consolidated, political disagreements were marked), he never held
any government office. In his later years, when his influence
in the Institute of International Law had become so notable, he
took a prominent part as a pacifist, and became a Councillor of
the Interparliamentary Union and President of the International
Union for Mutual Understanding. It was a symbol of his deep interest in these movements that his death came on the very eve of a
journey to attend the dedication of the Peace Palace at the Hague.
Ladislas von Thot is a native of Hungary, and has been judge
He is a Fellow of the Pioyal
of the criminal court in Budapest,
Academy of Spain, Corresponding Fellow of the Royal Academies
of Italy and of Greece, of the Petrograd Imperial Society of JuHis astonishing command of many foreign languages
rists, etc.
has enabled him to pursue comparative researches of wide scope.
His lengthy essay in "Der Gerichtsaal" (1912, LXXIX, pp. 142in politics a
Liszt, of Berlin,
affiliated as
been
a national group.
prolific,^
and
is
unexcelled.
of
1 "Storia
del diritto penale europeo", in "II progresso del diritto
criminale", ed. Carnevale (Vols. I-IV, passim, 1909-1913); "Droit
penal oriental", in "Mittheilungen der internationalen Icriminalistischen
Vereinigung" (Vol. XIX, 1912, pp. 110-227); " Gesehiedenis van het
italiensche Strafregt ", in "Proceedings of the Royal Flemish Academy "
;
etc.
XXX vi
EDITORIAL PREFACE
associate
professor
sources.'*
xxxvii
EDITORIAL PREFACE
and
proccflurc.
seen at
is
The Translators.
"His-
and
was
later
University.
He
Fellow
(1908)
in
Jurisprudence
at
Columbia
Tacoma
Washington.
For Stemann's chapter, the translator
is
is
John Walgren
of the
also
is
there
made.
For the chapters from Garraud and Glasson, the translator is
Alfonso de Salvio, assistant professor of Romance Languages
he is also the translator of the treain Northwestern L^niversity
tise of De Quiros on "INIodern Theories of Criminality" in the
Modern Criminal Science Series (published under the auspices
of the American Institute of Criminal Law" and Criminology).
For the chapter from von Stein, the translator is Robert
Wyness ]Millar, professor of Criminal Law and Procedure and of
Civil Procedure in Northwestern University, and translator also
of Engelmann's "History of Continental Civil Procedure" in the
present Series, and of Garofalo's "Criminology" in the ^Modern
;
xxxvni
EDITORIAL PREFACE
Rome and
Hence
Rome
in the
Germanic
in the
The migrations
North.
of the
and
and church law form the next
and a chapter on this subject brings us to
up
tribes lead
where mountainous
another chapter
isolation
served
is
also
given to Switzerland,
to
preserve
certain
Roman
This completes the second period, the Middle Ages, and brings
us to the third period, the Renascence of Roman law in the
1400s-1500s, the Reformation, and the ensuing century of the
enment
We
law is fully told in Professor Calisse's vol(translated by Mr. Lide), No. VIII of the present Series, "History
of Italian Law, Public, Criminal, and Private."
ume
xxxix
EDITORIAL PREFACE
direct current of
ment
new
Germanic
of
ideas.
within the influence, present only locally variant tj'pes of its effect.
The
later religious
and
intellectual
movements
are shared in
all
own, partly through its earlier cultivation of the relaw, partly because of its well-formulated bodies of
local written law, but chiefly through its centralized monarchy
and its advanced methods of procedure. Later, France leads
Europe in the humanization of the criminal law.
This brings us to the fourth period, that of the French Revolution, which amidst the crash of governments rapidly focussed the
reformative demands in criminal law and started its uniA-ersal
ment
of its
vived
Roman
Two
regeneration.
Revolution in
The
fifth
the 1800
its
and
s, is
thus ushered
in.
in
Germany.
is
Law
in
writing
it
in codes.
rapid,
legislative eftorts.
own
times.
I of
in criminal
C. Bernaldo
the
Modern
EDITORIAL NOTE
Pursuant to the plan of the
of this Series with a
Editorial
Committee
British scholar
to introduce each
Volume
Luke Owex
Pike, Esq.,
of England's historians.
In later correspondence, since the outbreak of the War, Mr. Pike indicated
by the Editor) "to wTite, as it were, a new chapter
of the history of criminal law on the Continent, in accordance with the objectlessons which the Continent is now providing."
This intended chapter,
his intention (assented to
however, has been lost to the world. In October, 1915, the preliminary
proofs of this book were forwarded to Mr. Pike
but before the end of that
month he had passed away and no manuscript draft of an Introduction could
;
be found among his papers, other than some unfinished notes made in prepaInstructions had been left by him to destroy all papers "except those
relating to the Continental Legal History Series published under the auspices
of the Association of American Law Schools."
Evidently the fulfilment of his
plan had been postponed until the expected arrival of the proofs which came
at last, but too late.
The editorial plan for an Introduction on behalf of British legal science has
nevertheless been enabled to be fulfilled, by the courtesy of Mr. Justice
William Renwick Riddell, of the Supreme Court of Ontario. His distinguished name and his charming personality are familiar to the Bar of the
United States and his scholarship is attested in a long list of essays, indicating
ration.
the natural zest of the historian to be uniquely compatible with the wisdom
and practical activities of the judge. His goodwill to the cause represented by
the present Series had already been shown by his Introduction to \'olume V
tliis
emboldened the
Editor to
J.
February, 1916.
xli
H.
W.
INTRODUCTION
By William Renwick Riddell^
This work is of extreme value to those who desire a scientific
and philosophical knowledge of the principles underlying the
criminal law, punislmient for crime, commutation and pardon
and sidelights are cast by it upon criminal procedure. Its chief
value therefore will be to the legislator and to him who
wishes to influence the legislator, to the Executive and those
concerned in the execution of the judgment of the Courts. The
difficulties experienced in other times and other countries, and
the manner in which the\' have been met and in part o\ercome,
are object lessons wliicli the statesman and the reformer cannot
;
afford to neglect.
We
English-speaking peoples
may
in the superiority
most part harmless self-satisfaction. But if and when that selfcomplacency goes so far as to make us wholly regardless of what
other peoples are and do, it ceases to be harmless
the harm
tial
record represents
Yahweh
as saying to the
the
Roman
ulciscendi jus",
me
lives
up to
its
natural
rights so declared.
1
etc.,
Justice of the
Supreme Court
of
Ontario.
StKi
xliii
INTRODUCTION
who sought
system there was in
theory no regard to religious opinions, a way was found to deal
with the Christians, "a pestilent and pernicious sect" who were
The Jew was ordered
to stone to death
and while
in
the
all
of his clan
Roman
''dod^(ovaa)
Bpo/jiia) TTOvov rjSvv
Kafiarov r eu
sings
CO
reXera^ 9eoiv
elScb^
iorav dyiarevet
Kol dtaaeverac -^Irv^v
ev opeaaL a'^yevtjiv
aioL^ KaOapp-olaiv
Tci re fiarpo'i
yia
KuySeXa?
7279),
1886)
mysteries, sanctifies his life, and is in soul initiated into rhe orgiastic band
with holy ceremonies solemnh'^ performing Bacchic rites in the mountains
and celebrating the prescribed orgies of the mighty Cybele."
xliv
INTRODUCTION
The Flagellantes of <a few centuries ago were for a long time as
holy as the Howling or the \Yhirling Dervishes but this generation
could not stand the Holy Rollers.
In the ninth century b.c., a certain highly-revered person, when
;
he was guyed by a
lot of
him
and
better
it fell
we have
some
The
fact
if
we
was
tribes,
"My
like
punishment
when driven
is
Cain,
made a
fugitive,
and many
cried,
felt
the
The
and the
till
of all that
is
a real punishment.
INTRODUCTION
of transportation lost
pathizers" of 18.37-8,
who were
its
"SymVan Diemen's
transported to
Land, and the Fenian invaders of 18G6 were sent to the Penitentiary.
prisons; but
imprisonment had been a real
punishment.
Until comparatively recent times, the richest
and most powerful lived of choice and of necessity in buildings
not far removed from a gaol, with thick stone walls, small windows, execrable sanitary arrangements, without provision for what
we now consider ordinary decency. As between Sing Sing Prison
and Carnarvon Castle, give me the Prison. Only those who, like
Robin Hood, lived under the green-wood tree felt it a deprivation
the sequestration from the rest of the world
to be shut up
bringing with it the incidental but invaluable advantage of security from enemies.
When man could walk about reasonably safe from danger of
sudden assault, imprisonment became something to be dreaded
and the gaol a means of punishment, so that now there is bitter
complaint if "prison forte" if not "dure" be awarded even to
keep an accused safe till his trial.
We may perhaps have become too uniform in our manner of
punishing different forms of offense against the law. Bentham
be,
if
was not oblivious to the value of making the punislunent fit the
crime but he would not have gone so far as to extract the intestines from one who wrongfully girdled his neighbour's trees, and
wind them about the trees in lieu of the abstracted bark; nor
would he give the shameless, the choice between a heavy fine and
running naked through the town. In Canada, the authorities a
few years ago had to interfere with the Doukhobors, who persisted in marching "in puris naturalibus "
and any one who
;
is
side law",
much
"fire-
what
was once a legal fact. For example, it is a matter of implicit belief
amongst the lower classes in Britain that if the rope used in hanging a criminal should break, he would go free.
That this was the
case in early German law is certain and almost certain that it
was the case at least locally in England
the breaking of the
which
is
INTRODUCTION"
upon
rights
is
bound
to respect,
and
tliat
State which at
its
discretion
may
be withdrawn,
while according
of tlie uidi\idual as
liable to
be modified
Germanic individual everywhere, and decrees derogatory thereof are null and void.
This most pregnant observation will lead the pliilosopliic student
and laAAyer to consider the far-reaching results of each principle,
and still more to consider how far the peoples and tlieir descendants
on both sides of the Atlantic remained and remain true to these
or suspended at will, for personal rights follow
tlie
their ideals.
The
is
diflBcult for a
conquest-seek-
xlvii
INTRODUCTION
By Edwin Roulette Keedy^
meet."
logic
It
is
as "the point
were substantially
cant.
If this definition
signifi-
The
criminal law,
Crime
civil law.
To
impulse.
us, to
all
is
by reason
it, is
and the
re-
it
belongs to another,
The impulse
to retaliate
is
of the
its
vengeance against
that a person
way
have played
century.
^
Professor of
Law
xlix
INTRODUCTION
against witchcraft and sorcery, and avarice alone was a strong
iiuriitive for inij)()siiig monetary penalties and for confiscating the
those to protect
Religion
itself,
is
responsible for
two kinds
affected
movement
Europe.
in
law throughout
Switzerland
in
Though
twenty-five
bills
civil.
r'The
civil
INTRODUCTION
legislatures enact statutes without considering the question
they can or
will
be enforced.
is
whether
found in
The theory
is
now
in
many
States.
is
all
tliat
it.
is
made without
Imi)ortant innova-
sufficient consideration
being
given to their relation to existing law or to the machinery for enforcing them. Thus the work of the recently established psychopathic
laboratories
is
hampered by the
previously determined.
laws
is
often impaired
The
by
principles of
effectiveness of parole
not
and probation
if
and
many
legislator.
They
will
cherished doctrines.
discover
They
will
it
as a whole.
of all they will discover that there are limits to the effectiveness of
the law, and thus be brought to realize that there arc conditions
in
li
INTRODUCTION
to
some
rehition
UNivERSiTi- OF Pennsylvania,
PmLADELPHIA,
February
16, 1916.
AUTHOR'S PREFACE
By carl LUDWIG VON BAR
It will be readily admitted that, immediately after the publi-
undertaken in a
its
interpre-
is
isolated facts.
The
statutory provision
latter
dialectical
is
is
its
current events.
>
Handbook,
liii
author's preface
results
ment
man
criminal law.
may
do
not, however,
mean a
history in the
all
the rules of criminal law which have ever existed, but rather a
history in which an endeavor
clear
but
sufficiently
is
concrete,
made
to present in a manner,
be also a
historv^ of the
is necessary
philosophy of criminal law
it is
there must
a history of
For philosophy
is
part of history
in
the activities of the times and their causes, and shedding light
upon the future. Philosophy has exercised a remarkable influence upon the field of criminal law, and this will be even more so
Moreover, such a historical treatment should
in the future.
cise
criti-
certainly be raised, in view of that investigawhich is constantly going on, whether it is permissible for one to announce an intention of writing a general history
of German criminal law.
Undoubtedly in such a history there
will be numerous gaps and deficiencies.
Yet, in our estimation,
it is desirable that there be undertaken, from time to time, such a
general history of a branch of our law
since otherwise the results
of the minute investigation of historical details would upon the
W'hole remain inaccessible for the solution of single points of the
law, and for the general comprehension of the practitioner and
tion of details
those
As
who
if
Completeness
is
sight of in the
mass
of several details.
exercise
is
AUTHOR
rely
PREFACE
of his subject,
sources.
This
last,
and
a limitation upon
of the
German
in
of other peoples
development.^
Roman
necessary.
is
Fol-
incidental element.
command, a
history of pure
German
new
ideas which
which has gone before, and not absolutely new and startling. It is
from this point of view that I regard my own conception of the
fundamental principle of criminal law. Perhaps it contains only
In the history of the theories of eriminal law, attention is driven
only to those foreign writers who can be shown to have had an actual
influence upon the German literature.
1
Iv
AUTHOR
PREFACE
work whose purpose it is to collect divergent matewhich the individual feels that his share in the great
sum total of scientific development is exceedingly small. Such
and, in accordance with my puris the character of this work;
pose as before stated, an attempt is made merely to recognize as
far as possible the relative truth, the permanent elements in the
well exist in a
rials,
and
in
divergent views.
This standpoint of
may
of criminal law,
Schtze,
Hugo
here undertaken.
ivi
PART
I.
CHAPTER
CHAPTER
II.
HISTORY OF CONTINENTAL
CRIMINAL LAW
Chapter
2.
Rome.
10.
Punishment
11.
Gradual
Prominence
of
Re-
Element. Roman
Theocratic
a
System. Early Suppression of Vengeance.
Suppression of Vengeance
in
Cases of Homicide.
tion
3.
not
12.
4.
Other Crimes.
"Perduellio."
"Multae
6.
Conception of the
Relation of the Individual
the
State.
Germanic
to
Conception of the Relation of the Individual to
the State.
ContriI)Ution
of Roman Criminal Law
the
p]stal)lishment
of
to
Individual Rights.
The Judicial Law of the
Empire.
Real Explanaof
tion
13.
14.
15.
Tlie
Law
TaV)les.
Power of
9.
of
Pun-
of
10.
Persecution
of
the
Chris-
tians.
17.
18.
Law.
(1)
Class
l*ri\'ilege.
CharCriminal
Continued
Disregard
Arl)itrary
(3)
Roman
Law.
7.
Methods
Property.
Roman
acter of
Law.
ishment.
of
Irrogatio."
5.
Death Penalty.
Change in Char-
Other
of
ment
to
ligious
Law
in Statutes of
Later Republic.
Opposi-
of
tlio
Twehe
"Paterfamilias" as
Supplement to Criminal
Law.
The Censorship.
Infamy.
"Actiones
Populres."
Other Criminal Legislation
of the Republic.
Statutes
of Later Republic.
Conditions.
19.
20.
of the Jurists.
Influence of Christianity in
Prothe Later Empire.
tection of State Sought by
Numerous Penal Statutes.
Otiier Effects of tiie Influence of
the Church.
Last Stages of the Roman
Inilueiice
Criminal Law.
11
1.
Various
Sources
of
Criminal
Law.
[Paut
T,
Vengeance.'
Title
The
two modern doctrines, concerning the nature of crimione of which regards punishment as a necessary
nal hiw,
consequence of crime, and the other would justify punishment as
existence of
Avriters
judiciis
Paris, 1875).
(Paris,
Chapter
I]
One
of these sources
The
for a wrong.^
is
itself
other source
in
lies
to
is
is,
it
vengeance
is such that it will not submit to being arl)itrarily set aside.
There
are also times when the established authority deems itself to be
on these occasions it too
directly attacked
like any other
in his behalf
be assigned to any
The
his service.
independently to
or perhaps
it is
in(li^idual
among
who
is
as yet too
it
can
volunteers
weak to proceed
punishment through its own agencies
public authority
inflict
is
the people
its
make this
own pur-
community is
maimer as he who
obliged upon
demand
own
behalf.''
is
1]
Priesthood.
Influence of the
vengeance
is
exercised, not so
Thus
much
it
[Pakt
Titlk
I,
The crime
the guardians
of justice
and morahty
priesthood.
It
is
if
the priest-
is
eatio" of the Roman magistrate and the origin of the "judicatio" in the
"eoercitio", Mommsen, "Rmisches Staatsrecht", I, pp. 133 et seq.,
153 et seq. "The 'judieatur' is nothing other than a regulated and restricted form of the 'eoercitio.'"
^ As to the ideas of the inhabitants of India,
cf. the "Laws of Manu,"
edited and translated by Thonissen, I, pp. 9, 10; [Khler, "Das Indische
Strafrecht" (" Zeitschr. fr vergl. Rechtswissenschaft," 1903, XVI, 179.]
As to these ideas, among the Israelites, see the Bible, Numbers, xxxiii
and XXXV.
5 According to the Greek and Oriental conceptions, the slayer must
at least be driven from the country, the soil of which has been moistened
by the blood of the slain. Cf. Odyssey, XV, 272: "otrui tol Kai iydiu iK
."
KaraKrs e/JL(f>v\ov
to the cities of refuge ("Asjdstdte") among the Hebrews, which
furnished a protection to the slayer against the avenger of blood ("Goel"),
when the kiUing was not premeditated, see the Bible, Exodus, xxi, 12, 13
iraTpl5os, udpa
^
As
Chapter
2.
tory of
I]
Rechtsgesehiehte "
" Grseco-Italische
la famille
la Grece
(cited in
le
droit eriminel en
primitive"
(1904);
Mommaen, "Zum
aeltesten Strafreclit"
Loening, "Geschiciite der
strafrechtlichen Zurechnungslehre. Vol. 1
Die Zurechnungsleiire des
Kraus, "Die Zurechnungslehre des Aristoteles"
Aristoteles" (1905);
("Der Gerichtssaal ", 1904, LXV, 1.53, 172; a critique of Loening's
volume)
Tesar, " Staatsidee und Strafrecht
das griechische Recht
...bis Aristoteles" (1914); Abb. des krim. Inst. Univ. Berlin, III ser.,
Note
above;
article
by Hilzig);
:
I,
3].
'
'
had many
slain
(Odj^ssey,
XV,
relatives
to
kill
him
272-278).
IVIoreover,
118-120).
For the period succeeding the Epic period, the laws of Draco
XXI II,
may be
These made a distinction between homicide '(k wpovolas',
and fXT) K vpovoias' (i.e. homicide with and without malice aforethought).
The Athenian state, in the period of its ascendancy, had a special
and highly developed system of criminal law, which has been partially
preserved in the works of the historical and philosophical "\^Titers.
The old criminal law of Attica contained the following punishments
capital punishment, imprisonment, banishment, public dishonor ("infamia"), money fines, and branding. Capital punishment was inflicted
in the following methods.
Criminals of the common class were put to
death by hanging, but slaves or those whose home was without the State
might be slain with a heavy club. Otiier methods were those of burning
Often the condemned
alive, strangulation, and beheading with a sword.
was given a cup of poison to drink. Other methods were suffocation
and the casting of the condemned from a higli rock. Stoning, empalement and crucifixion wer(> also emj)loyed.
The Athenian criminal law made use also of punishments by mutilation
the putting out of one or both eyes, the cutting off of the right
hand, and the tearing out of the tongue. Flogging was einployed as a
means of corporal punishment. Imprisonment was but little used in
Athens as a punishment. It was em])l()yed, however, when one had not
In such cases the condemned
paid a debt or had been convicted of theft.
was obliged to spend live days and nights in jail, where he was chained
and exposed to the derision and abuse of the multitude, linprisonnient
on a ship was also practiced. Banishment was either for life or temporary.
One method was that of ostracism, which was as a rule limiti'd to
cases of a political significance or in which the public order was concerned.
However, it was seldom resorted to.
We obtain many references to i)unislnnent from the '\\Titings of various
authors.
It was a fundamental principle that the i)unishinent of a slave
should be corporal [iJonoslluncs, "Androtion". GlOj. Confiscation of
property was incident to ])anishment {Scliol. in Aristophanes, "Vesp.",
947).
The names of those who were condemned to death were erased
mentioned.
"
2]
[Part
I,
Title
of
woman condemned
citizens
to death
was
Chapter
The
I]
relijjioiis
element
is
especially prominent.
" supplicium
",
punishment,
is
of religious origin.
offering
sacrifice
It
signified,
at
and
capital
first,
is
a sin
derived
sacrifices
penalties were inflicted for depri\ang a Greek citizen of his libertj^ wnthout
just cause.
As other punishable acts, Plato mentions offenses against
religion, batterj-, the tearing down of walls, robbery, and theft.
He who
had stolen an object that was sacred, was punished by a confiscation of
all his propert}% and his corpse could not be buried in Attica.
The criminal law of Sparta was of a different nature. It was distinguished by its extraordinary severity.
Thus we know that a young
Spartan, who had sewn a purple stripe on his tunic, was punished with
death (Plutarch, "Instit. Laced.").
know also that the Spartans
had stringent laws against refusal to enter into the marriage relation.
The young people were punished with loss of honor and property, and
were stripped of their clothing in the market place in the winter,' while
the people sang derisive songs {Plularch, "Lye", 27).
There is record
of a judgment in the time of Lycurgus, by which a youth was subjected
to a fine, because he had placed upon some goods a selling price which
exceeded the real value, and thereby gave evidence of his own avarice.
A king was compelled to pay a fine because he had won the hearts of all
the people, although their admiration was justifiable {Pint., "Agesilaos ",
These examples sufficiently reveal the severity of the Spartan system.
6).
A detailed examination would reveal many features in the Spartan
legislation, distinguishing it from that of the rest of Greece.
Thus we
know that in Sparta theft was permissible. The vital matter was that
the thief should not be caught.
If he was caught, he was whipped for
his lack of sldll.
It was not until a comparatively late period tliat the
:
We
embezzlement
of pul)lic funds
fines.]
Rein, p. 29.
"eonsecratio bonorum."
* I agree entirely with von Ihcring,
I, pp. 281, 282, who calls attention
to the analogy of the Norse "Wargus", " Waldgugers."
Mommscn,
2]
in
[Part
who dared
for
I,
TiTLE
any one
relatively the rights of the individual citizen), and such a one was
" sacer " ("quem populus judicavit ").^
Moreover, the
called
sacrifice to
the gods.^
increased because of
Because of their curse the individual was
required to destroy the criminal, or at least to break off all relationship with him.'
But the determination of the elements
which constituted a crime was little influenced by a regard for
the gods. We find nothing corresponding to the death penalties
inflicted in the theocratic community of the Hebrews,^ for a
departure from the faith, nonobservance of holidays, and blasphemy. The acts which placed the accused in the position of
" sacer " were more essentially those pertaining to the interests
of the family and of the civil community.^
The patron who
violated his duty of good faith toward his client ^^ the son who
wronged his father ^^ the daughter-in-law who repudiated the
sacred duty of allegiance to the family
each of these became
" sacer." An old law, dating back to the time of Xuma, pro-
By
10
Chapter
I]
the Twelve Tables the thief stealing grain in the night was threatened with death. In like manner, by the maxim, " Suspensumque
Cereri necari jubebant ",
^^
it
is
nature."
the case of
relations
many
an
crimes, because
e.g.
by an appeal to
religious
The
gins
alive
^^
;
death
l)y flogging.
Roman
^^
It is a peculiar characteristic
legal provisions
are justified
We
was suppressed
in none of the
which have survived, and from these provisions
in drawing certain wider conclusions as to its
we
find
it,
in a
pure form,
non-existence.
3.
1'
As
'*
There
murder
(" dolose
Tdtung
")
Power
was acquired
dendi."
is
11
"Lex Cornelia
", in
which
3]
[Part
I,
TiTLE
" Qusestores
intentionally
in the laws of
hominem liberum
as follows
" Si quis
By
the killing
concione
On
Tdtung
it is
husband
if
'
*
Livy, I, 23.
Fest us, "Verb, sig."
12
Chapter
I]
tuam
si
prehendisses,
impune
it
may
be
5 C/. Abegg, "Untersuchungen aus dem Gebiete der Strafrechtswissenschaft" (1830), p. 166. The husband could slay the adulterer, but not
the wife, and could only slay the former if he belonged to the "viliores
personae."
The father was permitted to slay the adulterer, provided,
at the same time, he slew his own daughter.
^ [The
statutes prior to the Twelve Tables constitute the so-called
"Jus Papirianum." These contain the "Leges regime", and were compiled by the Jm-ist Caius Papirianus.
These statutes forbade the killing of children over three years of age under penalty of confiscation of
property.
But if the eliild was disobedient or a cripple then the act
was unpunished. The daughter-in-law who mistreated her father-in-law
became "exsecrata" and could be slain with impunity by anyone. InHe who killi'd another
tentional slaying was punished as "parricidium."
unintentionalh' was obliged to give "aries" to the relatives of the slain.
The son who killed his father became "sacer" and anj'one had the right
('/.
Dionigi in Capuano, "Dottrina e storia del diritto
to kill him.
romano" (Napoli, 1864); Sigonius, "De antique jure civili Komano ",
lib. 1, e. 5
Capobianco, "11 diritto penale di Roma" (Firenze, 1894),
pp. 19-22; Bruns, "Fontes juris romani antiqui" (Tbingen, 1860).
;
Vox
Tho't.)
^ The familiar provision in the Mosaic
Law
xxi, 24: "Ej'e for an eye, tooth for a tooth"
(cf.
especially.
Exodus,
inferred,
13
3]
[Part
I,
TiTLE
The method
was more
closely related to
the principle of private vengeance. The Twelve Tables permitted the killing of the " fur nocturnus " ^ and the armed thief
this
whom he caught in the act. Moreover, the punishment provided for " furtum manifestum " was undoubtedly
" Poena maniinfluenced by a regard for private vengeance.^festi furti ex lege XII tabularum capitalis erat
nam liber verberatus addicebatur ei cui furtum fecerat" {Gains, IV, 189). Here
the " addictio " was a substitute for the ancient right to kill.
seize the thief
"dolo ", and the special kind of injury was intended, as we to-day, in the
classification of bodily injuries as "grave" and "minor", make a distinction in the consequence of the act.
For of a "Violentia pulsandi
atque laedendi ", which as Gellius, loc. cit., says should be restrained,
there can be a doubt only in case of an intentional ill-treatment, and
not in case of merely negligent ("culpose") injury in the doing of a thing
that is legally permissible, and only with the former is the conclusion of
the passage consistent
"quoniam modus voluntatis prsestari posset,
One has it in his power to determine whether
casus ictus non posset."
he will give a blow or a kick, but it is not in his power to injure according
as the blow or kick happen to reach their mark.
XXV
usu."
III, 184.
14
Chapter
I]
taking
when the
was caught
his
were extended
"
manifestum
at a later time was a basis for the praetorian action for a
fourfold penalty/^ while in " fur nee manifestum " only a twoIt is easy to understand why
fold penalty could be claimed.^''
in a case of theft (except theft of field-produce, as above mentioned), there is nothing said as to the thief becoming " sacer."
as
far
thief
as
possible.
^^
Consequently,
But the
everywhere
in the act
in
man
"
rights
furtum
against
whom
it
required
in
" A slave, according to the Twelve Tables, forfeited his life he was
Gellius, N. A. XI, 18.
flogged and then cast from a high rock
^*
Cf. Hepp, "Versuche ber einzelne Lehren der Straf rechtswissenschaft" (1827), pp. 132 et seq.
'* Other explanations are not satisfactory, cf. Hepp, pp.
110 et seq.;
That the thief caught in the act
Rein, p. 298, note; Zumpft, I, p. 37G.
is always a very daring and dangerous person, is certainly not true
on
The proposithe contrary he is just as likely to he a cowardly person.
tion, that some special favor should be shown to the man who is vigilant
His vigilance is ceras to his property, is too artificial for acceptance.
tainly rewarded in any case, since he retains his possessions, and rewards
and inducements for guarding one's property against unlawful acts are
The explanation that one who, because of fear,
generally superfluous.
is not in a position to judge fairly, will inflict, upon the thief, who is caught
in the act or who confesses, only the extreme penalty, is not satisfactory,
Moreover, there is nothing to
in that it does not apply to a confession.
be said relative to the greater offense to the man whose goods are stolen
by a "furtum manifestum." The fact that he is caught in the act is
for the most part merely a consequence of a lack of skill on the jiart of
the thief.
The view taken in the text is also in accord with the early
Roman conception, in L. 7. 1 D. "De furtis," 47, 2, which required for
a "furtum manifestum" the actual ai)prehension of the thief, and was
not satisfied witli the immediate knowledge that the act had lieen committed.
In the time of Justinian {cf. 3 J. 4, 1), the origin of the special
legal rules in regard to "furtum manifestum" were no longer understood,
It was an artificial exhence the wider extension of the concej)tion.
tension of "furtum manifestum," as daiiis himself says (111, 194), that
according to the Twelve Tables he was considered a "fur manifestus" in
whose home the stolen goods were found by means of a formal search
Tiie individual with whom the stolen i)r()perty was
("lance et licio").
found without such a formal s(>arch had to pay three times tlieir value
because of "furtum conceptum" (not however if he could immi'diately
show he had acquired tlie goods lawfully). This provision )>uiiislu'(l the
For the protection of the formal searching
receiver of stolen i)roperty.
of a house there existed the "actio furti i)roliibiti" for fourfold the
value of the stolen article, against iiim who did not permit a searching
('/. RudorjJ,
11,
of the house when demanded in the proper manner.
p. 352.
"^ A private settlement with money was frequently made, e\en before
the Twelve Tables, as indicated l)y the old form of complaint: "pro
The Praetor merely adopted an esfure damnum decidere opportere."
tablished custom.
Cf. RudorjJ, II, p. 350.
;
15
4]
summary punishment
little
[Paut
I,
TiTLK
The one
may
readily be
In
Roman
criminal law.
i.e.
war
the relation of
("
duellum "
who was
act, in
consequence
Judgment
"
Lex Valeria
",
Tables,
by the people
as a court of
placed as a punishment
the State.^
Under such
the treatment
conditions,
it
I, 26, 7
cf. XXVI, 3.
Correct view, Rudorff, II, p. 365, note
109.
To the contrary Rein, pp. 466 et seq.
1
Livy,
of
was
hhn
as an
was
enemy
of
16
1,
and Huschke,
p. 185,
note
Chapter
I]
was able
later,
citizen/'' e.g.
On
women),
The
" multse
irrogatio "
magistrate."*
Since the laws declared that violations of the sacred rights of the
Plebs were acts reducing their author to a relation of war towarrl
it was possible for the Tribunes of the Plebs (or perhaps
the xEdiles) to levy upon the offender heavy fines, the amount
the Plebs,
of
gatio
").
As
fixed
by the Plebs
(" multse
there appear
irro(in
State.
e.g.
The
which
crime
Roman
^ Cf. Nissen, "Das Justitium, eine Studie aus der rmischen Reehtsgeseliichte" (1877), pp. 24 et seq.
^
Cf. especially the excellent investigations of Iluschkc, pp. 145 el
seq., and particularly the remarks on p. 179.
Herein we differ from the opinion of Iluschke, "Crime as such is a
mere ethical negation; it has in itself no valid distinction, since 'non
believe that wrong
entis nulla sunt pnT?dicata"' (Ifu.'iclike, p. 211).
I
("Rechtsverletzung") and punishment are here interchanged. Crime,
as a wrong, must have definite limits, just as it is necessary that there
be a dehnitive establishment of the right that has been violated. However, punishment was originally of but one kind
banishment from the
community or death.
'
17
5]
[Part
I,
Title
was regarded as
act of a magisFurthermore, it is
shown by the fact that the State treasury (" fiscus ") could not
be made a party to an action,^ and also, later, by the absolute
power of the emperor. There were, to be sure, some laws which
also in the absence of
trate
official
e.g.
by the appointment
State to be in danger.^
of a dictator,
Thus
it is
if
easily explainable
why
the right
it
was
tration there
The
rights of
the individual as against the State are not based upon some positive law, liable to be modified at discretion or suspended in its
operation by the enactment of some other law, but are based upon
that ideal of law of which contract and statute are merely the
Even the king, according to the Germanic concepmust submit to the jurisdiction of the court. Against
the State treasury (" fiscus "), and against the State as a legal
expression.
tion of law,
entity,
sense
may
be obtained.
^ Against
this there was effective only the intercession of a " par
majorve potestas."
' Cases in which the "fiscus" was concerned were later decided by
the "procurator fisci" and not by the court.
As to this
point, see the above cited work of N^issen.
* This also explains the fact that the Romans, especially in the time
of the Repubhc, often gave to their criminal statutes an "ex post facto"
effect
"qui fecit, fecerit"
without considering it as anything out
of the ordinary.
Cf. Seeger, "Abhandlungen aus dem Strafrecht" (II,
1862), p. 1 et seq.
^ Cf. Puchta, "Institutionen", I, 51, note 6.
18
Chapter
I]
Contribution of
Individual
Rights.
Roman
The
Criminal
Law
Roman Law
human
to the Establishment of
significant
"
as a factor in
importance "per se", and to acquire, to a certain extent, a position of independence towards the State, is contrary to fact.
These
results were obtained only when the Germanic ideal of law had
impressed itself upon the progress of humanity^
]\Ioreover, it is not true that in these respects the Romans were
clearly in advance of the Greeks.
The much greater strictness
shown in limiting the jurisdiction of the Athenian magistrate,
the actual and careful protection in Athens of the rights of the
individual ^ as against the State, speak to the contrary.
At any
rate there did not prevail in Athens the Roman conception that
the rights of the State are unlimited
ing of
of Solon,
While
it,
indeed,
may
many
Roman
crimi-
private law.
manner
in
" senatus
not in any
(it
may
well be called)
way
violate a right
and
in
themselves, did
by the
police power,
C/. e.g. Hildenhrand, "Geschichte und System der Rechts- und Staatsphilosophie ", I, p. .524.
8 Especially in criminal procedure.
^Hermann, " Lehrljuch der griechischen Privatalterthmer ", 00,
note 4, seq.
' Hermann,
In Athens, the hand of one who had
62, note 27.
committed suicide was cut off.
^
19
5]
of tlio
Roman
I,
TiTLE
crimes
Roman
[Pakt
its
operation in the
Roman
real
results
until
our
own
time.
The
become
by
20
Chapter
It
I]
might be argued
in
Also the fact that laws, which if they were partly of a temtus.
porary nature could for centuries form, as it were, the skeleton
was made
character of the
G.
Roman
criminal legislation.
The Jurisprudence
of the Empire.
'
The
legal science of
represents in
many
respects
We
was an endeavor
to separate
more
to introduce
But
for the
of guilt.
statutes'
The
interposition
fixed principles
private law.
The
final
and
Roman
Criminal Law.
Roman
acter of the
criminal law
'
Pernice, pp. 1 et seq., is of the
Cf. also Fadelelti, pp. 258 el seq.
opinion that to a ffrcat extent the treatment by the Roman jurists of the
I
erimiiial law can be shown to be without principles and superficial.
doubt if his criticism and conception in this respect are correct.
21
^ 7]
[Paut
I,
TiTLE
sake of a prompt and vigorous repression and to avoid the difficulty of proof, to apply the full statutory j)enalty to eases in which
a more exact and proper consideration would reveal a substantial
defect in the facts necessary to constitute the crime.
(populus)
sic
paret ut regi
valet
enim
salus plus
" In hello
quam
libido."
the citizens were subjected for the greater part of their lives
which
made
In addition to this
the fact that, immediately after the time of the kings, the
entire criminal jurisdiction (primarily as a result of the " provocatio " against the decrees of a magistrate) devolved upon the
there
is
quently than
upon the
facts
of
the complaint.
to
Even
is
Tables
by the
Cicero,
"De
rep.",
22
I, c.
40,
63.
Chapter
I]
provisions prescribing the death penalty for treason,^ for (intentionally) setting fire to a house or to a supply of grain lying near
and
and
",^
scurrilous stories.^
It
is
for inventing
when
acting as
and si)reading
Twehe
satires
Tables
punished (presumably with death) the utterance of magic formulas to the detriment of another's person or another's crops.
'
gance
Law.
life in
of
his control.
way
it
"Ad
2
'
hosti tradiderit."
L. 3 pr. D.
leg. Jul.
L. 9.
Gellius,
XX,
1,
The
7, 53.
9.
false witness
was
to be
thrown from
Zumpft,
I,
p.
satirical
songs of a political
nature.
^ "Qui fruges excantasset
neve alienam segetem pellexeris."
Cf.
Bruns, "Fontes juri Rom. antiqui" (3d ed.), p. 28.
* The holding of assemblies by night in the city was also punished.
"Primum XII tab. cautum esse eognoseimus, ne quis in urbe ccBtus
nocturnos agitaret." Bruns, lac. eit. p. 31.
' (^onc(>riiing poisoning.
Cf. also L. 236 D. "De V. S.", 50, 16.
" "Hoiniiicin niortuiun in urbe ne sepelito neve urito."
Bruns, p. 33.
9
Cf. Bruns, pp. 33, 34.
A comphiint could also be lodged against slaves by virtue of the
In this case the usual punishments (e.g. fines), since they
"Leges."
had no property, were inapplicable. Cf. L. 12 4 D. "De accusat.",
48, 2.
As to "filii familias" i.e. the agnate descendants of a "pater
Perhaps
familias", cf. L. 6 2 D. "Ad leg. .Jul. de adulter." 48, 5.
the relation of the jurisdiction of the State to that of the "familia" was
that "de facto" the judgment of the Iiead of thi- household was respected.
Undue severity of the liead of tlie family gnuhuiUy came into disfavor.
Prominent women were spared the sliaiiie of a public execution, since
when sentence had been passed they were turned over to their family
for execution.
Zumpft, I, p. 358.
Livy, XXXIX, 13.
.
23
8J
[Paut
TlTLK
I,
"
was valid and effective, regardless of its fundamental character, they did not consider themselves governed
strictly (i.e. in matters of taxation) by the relative amount of the
taxable property'
they also regarded themselves as authorized
to prejudice and " pro tanto " take away the political rights of
an individual ^ for the duration of the census,^ by transferring
him to another " tribus " (by the " inter aerarios referre ") ^
and by the omission of his name from the list of members of the
Senate.
In this manner he could be directly exposed to the
disrespect and contempt of the multitude.^ The Censors exeract of a magistrate
cised their
power
in this
same way
in cases of perjury
shown
and also
w^hich was
in cases of
undue
due to authority,
The
of
bad management
of
household
affairs.
can also be regarded as supplementary to the crimiHe, against w^hom judgment was passed as defendant
in certain civil complaints based upon either a tort (" delict ") or
a breach of trust, became " infamis." This entailed the loss of
the capacity of holding offices of honor and the right to vote in
the public assembly, and also brought certain disadvantages in
nal law.
24
Chapter
I]
legal proceedings,"
and
An
civil
In these actions,
money penalty which he received if the action was successful.^These cases,^^ as far as we have record of them, were founded, for
the most part, upon the Edict of the Praetor; they generally
dealt with matters which in modern times are subject to the police
Thus,
liability to
e.g.
civil
known.
the "Penal Actions" of the English Law which were so popular
Tkansl.]
in the early 1800 s.
As to the individual cases, cf. Waller, II, 802; Rudorff, II, 46.
'^ ('/.
e.g. concerning injury liy wild animals which were kept near the
pubhc highways, L. 40-42 D. "De anlil. edicto", 21, 1.
1-
[C/.
with Parliament
'^
25
9]
Lex
number
may
[Part
I,
TiTLE
of private penalties
law.
The other
Other Criminal Legislation of the Republic.
legislation of the Republic
except that of the last
has for us little of interest. During the aristocratic
period
" quum
period of the Republic, crimes against private persons
et res et cupiditates minores ", as Cicero says,^ were seldom com 9.
criminal
mitted by persons who were " sui juris." ^ As a result, substanonly penal provisions were those against infringement
tially the
down by
as continuations of the
utes,
of such statutes
1
Cicero,
Cicero,
for a
whole
series
armatisque hominibus."
' Thus,
soon after the overthrow of the Decemviri, the "Lex Duilia
ne quis ullum magistratum sine provocatione erearet
qui creasset eum
jus fasque occidi, neve ea caedes capitalis noxse haberetur."
Livy, III,
;
54, 55.
*
^
9.
26
Chapter
I]
The immediate
than
political crimes.
most
of these statutes
than
was
felt
in
practical consequence of
so,
since the
whose place they sat in judgment, often rested their decision not
much upon the specific act as upon the character and disposi-
so
That extortions
might
feel
Now
when a tribune
new statute
the
rights of individuals.^^
by
little, '
to include
The constantly
* In close relation to laws against extortion are the laws against fraudulently obtaining office ("leges ambitus"), sale and purchase of votes in
an election to a public office which in turn was used for extortion in the
provinces.
(Concerning the earlier laws see Rudnrff, 1, p. 80.) Concerning the " Lex Julia peculatus '" (appropriation to one's own use of public
property) enacted presumably by Ctesar, cf. Rudorff, I, p. 91.
8 Cf. Laboulaye, p. 192, and Mommsen, II, pp. 289 et seq.
Juris.
27
10]
made
neoessjiry a
more
vifi^orous
[Pakt
suppression of erime.
I,
TiTLE
Since the
punishment
by these statutes only as examples, and imposed its own fjunishment " ad exemplum legis "/- one may see in these statutes, to a
certain extent (as already remarked), the skeleton of the later
criminal law.
Punishment
10.
to Death Penalty.
these statutes
The
its
may
be
him,
come
made
justifiable to proclaim
such to
of
",
although reverenced
exception
Opposition
peculiar.
punishment
old
because of
is
in
The nature of
to be a meaningless formula.
especially
Some
was considered
the country, and as
which
it
to gain the
statutes
power
there
of king.
struggled
" Civis
Romanus."
Roman
magis-
and senator, and the plain citizen who cast his vote in the
assembly for the magistrates and whose vote was solicited by the
most distinguished, felt himself in turn a ruler, and a participant
in the " Majestas populi Romani."
Yet, as is well known, on
extraordinary occasions the blood of citizens was shed freely.
The disturbances of the Gracchi and the proscriptions in the civil
wars were outside the domain of the criminal law. Also, in the
provinces, Roman citizens were " de facto " deprived of their
goods and lives by violent and wicked magistrates in the most
shameful manner. One has only to think of the atrocities which
Cicero (with good reason) attributed to Verres. Numerous
trate
A.u.c.) and the "Lex Julia de vi" (708 a.u.c.) continued in the "de vi
privata" under Augustus.
'CJ. e.g. L. 7, . 3 D. "Ad leg. Jul. maj.", 48, 4r "si non tale sit delictum quod vel ex scriptura legis deseendit, vel ad exemplum legis vindieandum est." L. 3 D. "Ad leg. Pomp, de parrieidiis ", 48, 9.
Cf. also, Padeletti, p. 77, who infers an express prohibition in the
Twelve Tables against the killing of a man without trial and judgment.
*
28
Chapter
I]
10
the Bacchantes
prevalent
among
command of the Senate could be regarded as a deed not entirely without color of law.^ But the
thought of the death penalty and the executioner seemed unworthy
In extraordinary cases these things might
of the name of Roman.
be, but their mention in a statute of the later Republic was an
" Carnifex et obductio capitis et nomen ipsum
impossibility.
crucis abest non modo a corpore civium Romanorum, sed etiam
followers of Catiline at the
homine
libero est."
For purely
political offenses,
and
for
abuse
The
" Aquae
native
et
ignis
could destroy
^'^
XXXIX,
Livy,
18.
Livy, VIII, 18 and XL, 37.
*
Cf. Nissen, pp. 32 et seq.
^ Cicero, "Pro Rabirio", c. 5
( 16).
*
Cf. e.g. Diocass., XXXVI, 21, concerning the punishment of "ambitus."
^"Exilium hoc est aqua? et ignis interdictio." L. 2 D. "de publ.
jud." 48, 1. According to the "Lex Tullia", ten years exile was fixed
Cicero, "Pro Murena," c. 41 ( 89).
as a punishment for "aml)itus."
Since it was only in Rome that poHtical hfe existed.
'
Cf. relative to the gi-adually increased penalties for extortion in the
Provinces, Lahoulnye, p. 239.
'"The punishment provided in the "Lex Cornelia de sieariis" was
Cicero, "Pro Cluentio," c. 71.
originally merely banishment.
" Cf.Gengler, "Die straf rechthche Lehre des Verbrechens der VerCicero,
Ilenriot, II, pp. 104 et seq.
giftung", I (1842), pp. 40 et seq.
"De nat. D.", III, c. 30 (74) " hiec qiiotidimuv, sicae, veneni, peculatus, testamentorum etiam lege nova qmestiones."
'- Ilenriot, II,
This may be inferred from the frequent mention
p. 179.
by the poets of the killing of fathers and the motive of desire to obtain
the paternal possessions.
However this may have been fiirlhcred l)y
The "Lex Pomiieja de
the extreme extent of the "patria potestas."
parricidiis" subjected "parricidium" to the penalties of the "Lex Cornelia de sieariis."
The ancient "poena culei," which
L. 1 D. 48, 9.
was reestablished in the Empire, stood in the way of a sentence in the
2
**
Later Republic.
29
11]
[Part
I,
Title
''^
his crime/^
who
it
if,
in safety
fruits of
More than
punishment.
Thus,
for
its
technical
Roman
who
citizens to
coloranda causa."
11.
we would
^'^
of
" Exile originally was not a punishment, but rather a means to escape
punishment. Cicero, "Pro Csecina ", c. 34 ( 100). However, voluntary
exile could take place in accordance with the expression "Ei justum esse
exilium", and therewith interdiction from fire and water and loss of all
legal rights in the native country.
XXVI, .3. Cf. as to
Livy, XXV, 4
voluntary exile, Geib, " Geschichte des rm. Criminal processes", pp. 120
et seq., p. 304.
In Greece, also, there was originally a voluntary departure
of the worst criminals.
The individual could sever the tie which united
him to the community, and thereupon the rights of the latter in regard
to him came to an end.
In other ways, in ancient times, the effects of
exile were often quite severe.
^* Juvenal, "Sat." I,
1, 48.
;
"
30
Chapter
I]
11
without restraint.
upon him the severest penalties of life and limb.^ Until the
Sempronian Statutes (031 a.u.), there could be no appeal
against the official act of a magistrate " militiae " even by those
who were
not soldiers.-
It
always
is
difficult
for a conquest-
is
an
city)
civil wars.'^
next
place,
analogy
another
while
already
At
existed.
matter of fact,
leniently treated, it had not only become customary for their
masters to torture and kill them for offenses, but they were
also liable to a particularly atrocious court procedure, in which,
presumably, a leading part was played by the accusation of the
master.^ Such an inequality in the treatment of human beings
must also in the long run work to the prejudice of the privileged
period,
earlier
As a
class.
were,
slaves
and of
which there was an especial
place
as
'
itself
indirectly
exile, it
was
of the
offender.^
As a matter
further punishment,
",
43).
Cutting
Cf.
off of
Du
31
12]
[Paut
I,
TiTLE
Juvenal
calls it)."
political rights
the penalties.
In
this,
prohibition to
7
"Sat.",
I,
1,
come within a
certain radius.-
Exile also, in so
47, 48.
32
Chapter
I]
12
far as the imperial power itself undertook the compulsory transportation of the accused, might be deportation (" deportatio "),^
a term
at
fixed
first,
sentenced
at
the discretion
deportation
to
and
of
relegation
the
emperor,
who
criminals
political
and those who figured as such. Not until later were they more
by the jurists. The individual who underwent
definitely fixed
making a
or right of
will or
factio ")
Von
Note
5.
of
tliis
aggeribus
5
", I, 9, 38.
L. 7 3 4
D.
"De
of the punishment of deportation is apcontrarj' to the viewpoint of the Republic, that there
should l)c no direct personal coercion in punishment.
Cf. Von Holtzendorff, p. GO.
' He who had been deported, retained the rights of the "Jus gentium/'
* They allowed to the condemned only the so-called "Pannicularia ",
certain trinkets and articles of clothing \cf. the Rescript of Hadrian in
L. G D. "De bonis damnatorem ", 48, 20), his children (except in "lese
majeste"), and a portion of the property. For particulars, cf. Von
Holtzendorff, pp. 79 et seq.
In Egypt, deportation was to an oasis in the desert:
L. 7 " De
interdietis et relegatis ", 48, 22.
'" The island rock of Gyaros, one of the Cyclades in the ^-Egean Sea,
was used for this purpose, as it was lacking in water: Tacilus, "Annals",
IV, 30.
Cf. also Juvenal, "Sat.", XIII, 24G.
^
parent, since
it
was
33
12]
secret orders to
kill,
T,
Titlk
[Part
allejjjed
the despotism of the emperors '- again asserted itself. In opposition to the old Roman view, which regarded capital punishment
merely as the necessary destruction of the offender, and did not
regard the pains of death as essential, there began under Tiberius
The
was
was
used,'^
class,^*^
relatives,
and
later, this
was
(decapitation)
existing)
The
"
^^
necessarily
made
capital
The
soldiers entrusted \vith the escort often received this order e.g.
Cf. Von HoUzendorff, p. 49.
12
Cf. the fearful description of the reign of terror under Tiberius in
Suetonius, "Tib.", 61.
1^ Suetonius, 1. c.
"Mori volentibus vis adhibita est\avendi." Later,
choice of a special kind of death was a favor granted by the emperor.
L. 8 1 D. "De poenis", 48, 19.
" Crucifixion and burning alive, sentence to gladiatorial combat or
to be torn to pieces by wild beasts in the public theatres (methods employed for persons of the lower class as well as slaves).
"> L. 9 De.
lege Pompeja de parricid.", 48, 9.
The punishment of
"culeus" was used if the sea was near; "alioquin bestiis objicitur se-
"D
cundum
34
Chapter
I]
12
^^
been mentioned.^"
legally,
only
for
these
^'^
The
But
Romans
also
made
use of imprisonment
as a punishment.
it
"Armed " Grassatores " (robbers) were upon a repetition of tlie ofMalicious infense punished mth death.
Cf. L. 28 10 D. 48, 19.
cendiarism was frequent, e.g. in Rome, often to make an effective appeal
to charity (somewhat as to-day it is done to get fire-insurance money).
Concerning shameless and fraudulent bankruptCf. Henriot, II, p. 15G.
cies, see Henriot, II, pp. 150 et seq.
2 "Famosos latrones
L. 28
fiu-ca figcndos, compluribus placuit."
Malicious setting of fires "in civitate"
15 D. "De pcpnis," 48, 19.
by a "humilior" was subject to the punishment of "bestiis ol)jici."
According to L. 28 12 D. "De
L. 12 1 D. "De incendio", 47, 9.
Concerning
poenis" (Callistratus) it was punislied by burning alive.
man-stealers, who made a business of stealing children and selling them
into slavery, cf. L. 7 C. "Ad leg. Fabian." 9, 20, (Diocletian) and L. un.
C. 9, 18 (Constantine).
2'
Counterfeiting of gold money (L. 8 D. "De lege Corn, de falsis",
As is well known, counterfeiting was later treated
48, 10, Ulpian).
L. 2 C. " De falsa moneta", 9, 24
in conjunction with "lese majeste."
(Constantine).
2- This, consisting at the most in whipping with a cane ("fustigatio"')
is frequently mentioned.
Cf. especially L. 8 3-5 D. "De pienis",
In addition to \vhipj)ing with a cane, there were, under the later
48, 19.
emperors, whipping with birches ("\nrga3"), with lashes and knouts
("flagellum ").
Balls of lead were later also woven into the knout
("plumba") (cf. e.g. L. 1 C. "De his qui potentiorum nomine", 2, 1_5)
(Arcadius and Honorius) and thorns ("scorpio").
Cf. Inveniizzi, p. 173.
Fauly, " Realencyklopiulie," VI, p. 24()().
* Concerning corporal
punishment as an additional punishment in
cases of "Relegatio", s(>nt(Mice to "Opus publicum", and "ad nu'talla",
cf. L. 4 1 D. "De incendio", 47, 9.
^^
His "Sophronisterion" ("Legg.", IX, 908) is in its fundamental
35
12]
who
[Part
I,
Title
was in advance of his time. However, genremained unknown to the prevailing opinions
Ulpian did not regard imprisonment primarily
of ancient times.
punishment.
Thus in L. 8 9 D. " De poenis",
of
as a means
"
Career
ad
continendos
homines, non puniendos
he
says
48, 19,
haberi debet." The rescript of the emperor Antoninus in L. 6 C.
in this respect
erally speaking
it
"
De
poenis",
9, 47,
reads as follows
quod
allegas,
liberum hominem, ut vinculis perpetuo contineretur, esse damnatum." -*' But in the Empire imprisonment sometimes served as a
punishment
of short duration
-'
and
also for
cases in which, for the sake of the public peace, the temporary
Hard Labor.
slaves by hard
INIoreover,
since
it
-^ was desirable.-^
was customary to punish
in reality little
ful
works which were being undertaken by the State. This idea was perhaps furthered by an acquaintance with the custom of States annexed to Rome." Thus
even Pliny the Younger ^^ speaks of the employment of convicts
in public work (" opus publicum "), such as cleaning sewers, mending the highways, and working in the public baths.
A severer
"
type of this kind of punishment was a sentence " ad metalla
labor in the mines
and "in opus metalu." The convicts
"
in each of these instances wore chains, and as " servi poense
lost their freedom.
For this reason the punishment was always
for life.'^Heavier chains were worn by those sentenced " ad
metalla " than by those sentenced " in opus metalli." "' These
of convicted persons in the great
"Rom.
2"
Cf. L.
We
36
Chapter
I]
[13
^lention
alty .'^^
is
also
made
e.g. in
employed in the grist mills. The " constitutio " which originated
this " damnatio in pistrinam urbis Romae " was often renewed;'^^
The other principal methods
Other Methods of Punishment.
of punishment of the time consisted of denial of the right to carry
on a trade,^^ declaration of incapacity for holding public office
(or perhaps only some public offices), degradation from a higher
these, in the Republic might be imposed
rank,"*^ and money fines
" de residuis " (failure to account for, and
e.g. on the complaint
especially misapplication of public funds), and also under some
"'^
(or to
3*
The
could not
speak more accurately, was not entitled to) be appointed
to be of considerable significance.
poenis."
30 " Collatio legum Mosaic." XI, 7 3, 4 (Ulpian).
3^ L. 8
The condemned were also in these
11 D. "De pcxjnis."
cases "Servi Poemc."
38
L. 3, 5, 6 C. Theodos. "De poenis ", 9, 40.
39
L. 43 pr. D. " De poenis ", 48, 19.
L. 9 10
L. 8 pr.
^o L. 5
L. 7 21, 22 D. "Do
2 D. "De extraord. cogn.", 50, 13.
There is also mention of a temporary su.sinterdictis et releg.", 48, 22.
pension of such rights [cf. L. 7 20 D. "De interd. et releg."). This
doubtless was the (sase, since even according to our modern conception
such punishments are regarded as disciplinary.
;
37
13]
to a public
[Part
office.^
all
I,
TiTLE
property,
''
to
despotic emperors
e.g.
relegation for
attained
to
life,
had, at
a considerable
Rome, under
importance.
It
1.
Cf.
''
*
^
Cf. e.g. L. 1,
It would also
"De
As
"infamia."
170
et
of
38
Chapter
I]
[14
lence of immorality,
own
adultery
illicit
(of
relations of
sucli
and with
their
sex, pandering,
This statute
not exclusive.^
39
14]
[Pakt
I,
TiTLE
ment
beyond the
deemed
The
and
is
justifiable.
later extensions
by imperial
juflicial practice,^ of
constitutions, senatusconsulta,
the " Leges Julise de vi " are more directly
of the
"De
adulteriis", 48, 5.
Cf. e.g. L. 1 2
^ The injured party could choose between a ci\il action and punishment of the theft "extra ordinem" L. 93 D. "De furtis" L. 3 1 D.
:
"De
off. prtef.
\-iguum",
1,
15; L. 15 D. 12,
40
4.
Chapter
I]
15
(1am. "
any
rate,
German common
the early
Little
by
law.
negligence
little,
became
also
was
liable
The Crime
15.
majeste
"
of
"Lese Majeste."
of criminal law.
The
tible to injuries in
in
The
many
These
ways.
injuries
may have
crime of "lese
a very
may
and nowhere.
Therefore laws
in
moment everywhere
"
L.
93 D.
"Do
There
is
in
such
furtis" (Ulpian).
"Concerning
;
only when they were "injuria?" and only when done with malice ("dolose"); offenses against morality were not identical with those of the
present time.
>' L. 3
1 D. 1, 15; L. 4 1 D. "Ad leg. Corn, de sic." 48, 8; L. 6
7D. "De
off.
prsES."
1,
18.
41
15]
cases
much
that
determined by
which the ruler
is
less
capable of
beinf;^
[Part
I,
TlTLE
In a State in
always a tendency to identify
absolute, there
is
comes
easy to ascribe to
presumed
real or
of law
more important
absolute
act,
When we
em{>eror
every
any
which
It
be-
in fact is contran,' to
the
still,
and the procedure wdiich, in the interest of the State against these
presumed enemies, permits the important guarantees affording protection to the accused to be set aside,^
things,
we need no
when we
consider these
com-
of Justinian,
officials.^
Thus
{Tacitus,
officials.
42
Chapter
IG.
I]
The
16
persecution of the
own
ends, as
its
new
religion.
is
heathen State, their prophecies concerning the judgshould overwhelm all heathendom and the
wickedness of the age, made them hated by many leaders in politiaffairs of the
ment
'
of
God which
zu Minutius Felix"
in the
43
10)
[Pakt
1,
Title
affairs.
hominum
pity, says
"
Thus Suetonius
iVfflicti
was
briefly
suppliciis Christiani
Tacitus
command
also,
as living
He found
fault
it,
acter, which,
its
^ "Quamquam ad versus
oriebatur,
tanquam non
rentur":
Tacitus,
44
Chapter
I]
presumed
interests
of
the State.
18
diflcult of
comprehension,
soothsaying
is also closely
forbidden cult.
The
Belief in the
power
of special incantations
to-
gether with the sacrifice of victims was an ancient one with the
Romans.
curb the
evil.
IS.
(1)
following circumstances
must be borne
in
mind.
Against the
Rein, p. 905.
Cf. Plainer, p. 237
1
45
18]
[Part
I,
Title
Roman
longer prevail.
felt
new ones
in their
Since, in reality,
it
semblance of political
reveal themselves in the criminal law.^ They cost the emperor
nothing, and they also enabled him to interfere constantly in the
administration of the law by the governors of the provinces, and
to remind them and their underlings of their subjection to the
superior power of their emperor.- Thus, in the Digest, under the
title " De pcenis", the first place is given to a passage from Ulpian, in which, before everything else, attention is called to
distinctions of rank in the determination of punishments.
For
the higher classes,^ relegation and deportation were the regular
penalties.
The former applied to substantially the same classes
of cases punishable under the old " Leges judiciorum publicorum "
the latter was for cases covered by the " extra ordinr ia coercitio."
But a desire to aggravate or mitigate the penalty would cause
individual cases to be shifted from one group to another.^ The
punishments for the lower classes (" humiliores ") were the death
penalty, condemnation " ad metalla " or to " opus publicum ",
or corporal punishment.^ However, in the case of crimes against
;
1 This
tendency did not cease completely until the time of Marcus
Aurelius and Alexander Severus.
Under despotic emperors such as
46
Chapter
I]
the emperor,
all
penalty
",
18
generally, deportation
ment
rank
Administration
administered by
inflicted.
of
officials,
Justice
by
State
Officials.
Justice
century after
first
Christ had completely crowded out and replaced the old adjudications of the people, reminds one in
many
of criminal justice as
exhibitione reorum
onment, with rules
",
it is
abolished, tended
many
corruption,
furthered
informal
and
methods,^"
arbitrary
and
9,
L.
.5,
C.
"De
teriis", 48, 5.
47
IS]
In
the
its
[Pakt
its
I,
TiTLK
cliaii^L'(l
form,
who was sentenced. As in ancient Greece,'was not considered worth the trouble to j^ive emphato a proper relation between the punishment and the crime, or
Home
to gi\'e
it
much thought
manner
is
here, as
it
were,
an enemy
s.^"''
"Le
'
16
16
"
48
Chapter
1]
make
18
a public example.
mention of
tum
this, sees
est senatus
et securitati."
" Fac-
Condem-
system of law,
danger of revertThe abnormal develing to its condition in much earlier periods.
opment, which we have noticed {e.g. in the crime of " lese
majeste "), the prosecution of crimes after the death of their
author, the " damnatio memoriae ", and the punishment inflicted
upon even the descendants of those guilty of " lese majeste ",
all these are not to be attributed solely to the despotism of
Reversion to More Primitive Conditions.
was always
in
18
L. 8
10 D.
"De
The
large
only were spared who could prove that they hastened to the assistance
Even Hadrian, who was usually mild of disposition,
of their master.
gave a rescrii>t to the effect that a female slave, who (perhaps from astonishment or fear) had not called for help, should be put to death
L. 1, 28, D. 29, 5.
2 Annals, XII 1, .T2.
-^ Colattio Leg. Mosaic. XI. c. 7
"Ad gladium damnati' confestim
4
consumuntur vel certe intra annun debent consumi." There is no doubt
that the provincial magistrates often sought to add lustre to the theatre
bv bringing large numbers of condemned persons into coml)at with lions,
tigers, etc."
It was against this abuse tliat the prohibition cotitained in
L. :U, 1, D. "De pcenis", 48, 19, was directed; in accordance with
which, criminals were not to b(^ transported from ouv jjrovince to another.
Indeed, it is stated in the same passage, concerning convicts who have
distinguished themselves in such combats and have for the time being
escaped with their lives, that word be sent to the Emperor, if there can
be this delav, that these convicts are worthy to be presented before the
people of tlie Citv of Rome! Sometimes the spectators desired the release of the combatants l)ecause of their bravery and recklessness of
life.
But the provincial nuigistrates were not to comply with such desires.
:
49
19]
many
Roman
constitutional law
place in the
field of
criminal law.
19.
I,
Titli:
the emperors.
[Pakt
})y
of the
officials
made
by
and an
possible another
judicial practice.
Even
own judgment
either
In
alties according to the exigencies of general public policy.^
theory they appeared only as administrators of the statutory law,
or of the will of the emperor or of the Senate, which had the same
force
and
effect as a statute.^
They were
angle, the jurisdiction of these officials did go further.
not (as were the " qusestiones " of the old popular courts) limited in such
certain offense
author.^
official
They
one
done by
juristic aspect,
very
of
and
extensive.'*
was
civitatis,
50
Chapter
tiam
I]
ferre vel
19
Now
excedat."
The
Roman
alties "
exemplum
legis ",
but also
in
",
imperial despotism, introduced a distinction between " perduellio " and the other cases of " lese majeste ", and limited to the
etc.,
11, p.
10(i.
"De
"De
"De
51
20]
[Part
TiTLE
I,
7, 3,
D. 48,
procedure of
all civilized
punitum
We
also
nations
quam
exasperandse
concerning
the
'\^
'^
Marcian
'-
imposition
Roman
debted to
we
Again,
penalties. ^^
of
are
in-
sibility, and for those titles of the Digest which to-day are often
too little appreciated, viz., " De furtis ", " De injurias ", and
" De falsis " as also for the title " Ad legem Aquiliam ", so im;
portant for that cardinal point in criminal law, the relation be-
effect.
The
last-mentioned
title,
as a result of
the slight regard of their law for the consequence of an act, had
Roman
attention to the
little
it
which we so much
admire in Roman private law. This is shown by the history of the
theory of " dolus ", which, though the Roman criminal law laid
so much stress on " dolus ", was left only partially developed
the ultimate result of an act was in general given little consideration, and " dolus " can be accurately comprehended only when
high degree of development in the criminal
field
it is
is
But, perhaps
on account
so stimulating an influence
Roman
criminal law
it
had
In the
Empire, the criminal law, upon the whole, tended to deteriorate.
Just as the Christians had previously been persecuted,
so now the power of the State, since the conversion of the emperors, was directed against the heathen, whose practices were
Influence of Christianity in the Later Empire.
20.
later
"
42,
"
L.
L.
rescript
12 L.
D.
pr.,
19.
48,
19.
The passage
is
taken from a
of Trajan.
52
Chapter
I]
20
i.e.
orthodox.
It
heretics
as of-
But the right/ of prosecution was by no means delegated to the Church j/ nor were
individuals put on trial for
tlieir
personal beliefs.
This frightful
were
in
at a legal disadvantage.^
Consider-
ing the hostihty of parties within the Church towards each other at
But the
State, as
it
felt itself
clergy and
1,
3^417
A.D.).
53
20]
[Part
I,
Title
State
is
l)y
game
of draughts.
Protection of State
The
State
Thus it
itself against enemies of every character.
sought to protect itself against the increasing inroads of the Barbarians by prohibiting, under penalties, the instruction of Barbarians in the art of ship-building,^" and also the trade in weapons
to protect
and
There were
also
^^
against
statutes
persons
who
and
lis,
The
by the imposition
of
heavy
fines.^^
its
Apart
own
from
the different
in
manner
in
"
Cf. L. 11 pr.,
D.
is
seen
The
"De
publicanis", 39, 4.
Also L. 2, C. "quaB res
41 (Marcian).
The exportation of gold also
was forbidden in L. 2 C. "De commerciis" 4, 63 (by Valentinian and
Valens).
12
Cf. L. 28, 7, D. "De poenis", 48, 19; also L. 1, C. "De privatis
CLrcGribiis " Q ^
13
C/. L. 10,' C. "Ad leg. Jul. de vi publ. s. priv.", 9, 12 (a.d. 468, by
exportari
non debeant",
4,
134
et seq.
54
"De extraord.
"De monop.",
cf.
Von
crim.", 47,
4,
59.
Cf.
HoUzendorff, pp.
Chapter
I]
20
is limited to the married parties themand their nearest male relatives. Thus adultery appears
more as an offense against the family, and the relation of marriage is no longer ruthlessly sacrificed to the interests of the police
power of the State. ^^ This same influence also appears in an extensive political protection of slaves/^ in whom Christianity saw
j)rimarily the friend and brother.
It is also shown in the severer
Making appeal
to certain familiar
Roman
law, or,
if
used,
it
connubia."
'*
Cf. e.g. L. G, C. 11, 41 "De spectaculis" (a.d. 428) which forbade
masters to place female slaves in brothels. Constantine had previously
"De
forl)i(ld(>n
(cf.
custom
inhumanly
of
L.
1,
55
20]
poses.
[Pakt
I,
TiTLK
of
and
In
varying penal provisions have upon the morals of a people.
it is sufficient to recall the barbarous penal provi-
this respect,
of the
Code
of
Many
among whom
inseparable therefrom.
'
Jhe
Roman
same time
to
make
56
Chapter
II
Prominence
of
not
the
Form
22.
of the
Vengeance.
Special
of
Element
Outlawry
Most Primitive
25.
Punishment.
Relations of Peace.
of the Peace of
"Breach
the Land."
23.
24.
26.
Composition of Offenses.
Little Consideration Given
to the Element of Intention.
Explanation of this
Lack of Consideration.
Secrecy.
Influence of the Early Kings.
Capitularies
of
the
Carolingians.
The Royal
Ban.
Other Forms of Criminal
Punishment. Influence of
tlie I^unishment of Slaves.
Effect of Loss of Freedom
by Mass
of the People.
21.
itive
LAW
may
57
21]
[PaeT
1,
TiTLE
based upon the principles of vengeance - and selfThis criminal law, when it assumed the form of vengeance, belonged only to the party injured or his kinsmen
(" sippe ").^
However, the party injured might be the community at large, if the ofi'ender made a direct attack upon
Romans,
is
defense.
"*
in battle
1912.]
legal
As
to
'"Germania", c. 12.
^ " Licet apud consilium accusare quoque et discrimen capitis intendere.
Distinctio poenarum ex delicto.
Proditores et transfugas arboribus suspendunt ignavos et imbelles et corpore infames cseno ae palude, iniecta
insuper crate mergunt." The much disputed "corpore infamis" certainly
has reference to unnatural lewdness {cf. Tacitus, "Annals", I, 13). However this, according to the most primitive German law, was criminally
just
punishable only when it occurred at encampments of the army,
as, in Tacitus, mention is made only of crimes which took place during
a military expedition.
In the army, discipline was more strictly exercised than under the ordinary criminal law, and in the army the tempta;
58
Chapter
II]
LAW
21
enim
et
id ist
si
in
necem ducis
Tunc
Patrimonium."
This,
however,
did
not
omnes
preclude
res ejus in
the
party
tion
Cf. Arnobius,
Hcnkc, I,
explanations, cf. Waitz, I, p. 396 (2d ed.), p. 425 (3d ed.).
p. 4, believes that "corpore infames" has reference e.g. to voluntary
mutilation with the view to avoid military service. Also Pnsqunle del
Giudice, p. 5, believes the passage of Tacitus has reference only to the
exercise of disciplinary power in the army, and correctly calls attention
to the fact that c. 11 of Tacitus says: "Silentium per sacerdotes quihus
tum et coercendi jus est imperatur." The priests have the "jus coerceudi
only during the public assembly.
^
"Germania,"
Eichhorn, I, p. 387.
"Lex Bajuv.", tit. 2,
c.
21.
c. 1.
Where
59
21]
liis
[Part
I,
TiTLE
if
the latter was not able to pay the composition levied by the
by mutual agreement. " Et si eum in conad fidem tullerunt hoc est ut redimant, de
The
quo domino non persolvit, tunc de sua vita conponat."
criminal would be delivered by the judicial power to the family
community
positione
or fixed
nullus
'"^
man
of the
as
we
by him,
slain
find
Ages.-'^
it
Saxonum"
218 et
that the heathen Saxons
(Berlin, 1868), pp.
seq.,
and that most of those cases in which capital punishment was inflicted,
found in the Lex Saxonum and the Saxon Capitularies of Charles the
Great, which differ from those of the other German folk-laws, are received
from and modelled after the more primitive law {e.g. burning of a church,
homicide in a church). But it is not to be assumed from this, that the
Saxon law, as it existed immediately before the statutes of Charles the
Great or even a century earlier, is an example of the oldest Saxon law or
the law of the race in the time of Tacitus.
Private vengeance can be supplanted by public punishment without the intervening steps of composition, and this could readily occiu" in cases where the previous similaritj'^
between members of the same race vanished under the domination of an
individual or of a powerful aristocracy comparatively few in number.
This last was undoubtedly the case with the Saxons, among whom the
"nobiles ", who constituted, as it were, a caste from which the ordinary
free men were excluded (c/. Richthofen, "Zm* Lex Saxonum", pp. 223 et
seq.) and who infUcted death upon the ordinary free man who married
one of their number, and were even able to impose for themselves six (!)
times the "wergeld" of an ordinary freeman.
Such a condition did not
exist among the other German tribes.
Perhaps such a penalty as the above
was applied only against those who were not nobles, and against nobles
there was only the right of feud.
This would explain the special protection of the "faidosus" in certain cases.
(C/. Richthofen, p. 231, as to
provisions of tliis character in the "Lex Frisionum" which east light upon
the "Lex Saxonum.")
This also explains why, after Charles the Gi-eat,
the domination of the nobles being broken, there re\dved in most cases
the old law of composition, which was so long retained as the most ancient
law of North Germany. Cf. the comments of Siekel, pp. 72 et seq. and
especially pp. 76, 77 "If one considers more closely the conditions under
Avhich the German priesthood lived, it will be seen that often the priesthood had conditions unfavorable for its development."
io"Les Salica", LVIII, 2 a. E. (ed. Behrend); cf. Wiarda, p. 272;
Pardessus, " Loi salique ", p. 664.
Abcgg, p. 319, also explains the passage
in this way.
In the supplements of Count Baldwin to the decrees of
Ghent, in the last of the 1100 s, it is said that for a case where an "e.xtraneus" had wronged an "oppidanus" (citizen), and had not rendered
him satisfaction within the fixed time ("quod si nondum satisfecerit reus),
"licebit male tractate, sine omni forisfacto
qualemcunque potuerit
vindictam sumere": Warnknig, "Flandrische Staats- und Rechtsgeschichte", II, 1, note vii (p. 18).
" Cf. Warnknig, "Flandrische Reehtsgeschichte ", III, p. 160.
:
60
Chapter
i.e.
II]
law
Then/''
if
21
the party
payment
of
2 "Germania", c.
12: "Sed et levioribus delictis pro modo poena:
equorum peeorumque numero eonvicti multantur. Pars multae regi vel
"
It
citizens
LXXXIX
61
21]
[Pakt
I,
Title
The
Outlawry not the Most Primitive Form of Punishment.
tliat
the
earhest
punishment
others
of
the
and
of
Wilda
view
criminal, even in offenses against the individual, was a general
outlawry, in the sense that the criminal was at once cast out
among the wild animals of the forest, thus becoming a " forest
rover " (" wargus ") who could be killed by anyone with
impunity,
is
not correct.
as
Von
would be
legally ineffective, and the outlawry would at once become public
That outlawTy of this character
punishment in its strict sense.
appears in the Norse sources is admitted.^' But the Norse
Amira points
Von Woringen, pp. 105 et seq., is correct in his view that a crime did not
originally cause general outlawry, but he incorrectly concludes that the
"fredus" would have to be paid for the breach of the peace. Since
peace had not been lost for the criminal, it could not well be repurchased.
But what is the distinction between a broken peace and a lost peace? I
am unable to see the difference. It is, however, proper to make a distinction between peace with the injured party and peace with the community.
The fact that the amount of "fredus" was graded in accordance with the
person who was injured is capable of a ready explanation by the \qew here
accepted.
Can not the price for negotiating the peace be varied in
accordance with the importance of the controversy, and is not this what
would naturally happen?
Sickel, p. 1.54, would maintain that the "fredus" was
originally not a
court fee, especially for the reason that the "collegium" of judges were
But could there not be certain
too numerous to derive benefit from it.
favored ones, who e.g. made the proposal for the peace? The narrative
of Gregory of Tours (Hist. Franc, c. 47) given by Rogge (p. 1.5, note 25),
is in accord with the view that the "compositio" rested originally merely
upon a compromise, which the leaders of the nation negotiated with a.
view to the advantage of the general public. The judges considered
themselves justified in order to perfect a settlement someway or other, in
conceding to some powerful party an amount as a "compositio" to wliich,
according to strict justice, be had no claim.
In no way did the later public
punishment supplant the money paid for the peace, but rather it supplanted the exercise of vengeance, of private satisfaction. Consequently
it is stated in the "Schsisches Landrecht ", III, 50, that if a German had
"
incurred as a penalty the loss of life or hand, he should pay neither "wette
nor compensation and the Kursaxon law even in the 1600 s did not recognize "wergeld", if the individual who was sentenced underwent the death
penalty
wliile the Italians, proceeding from the independence of the
ei\'il claim in respect to the claim for punishment, allowed claims for
damages to the descendants of the slain man in a judgment pronouncing
the death penalty against a murderer or generally one who had slain
another: Berlich, " Conclusiones practicabiles " (1615-1619), IV, 19, n.
15 et seq. and especially n. 24.
Confiscation of property, but not a definite amount of money as a
penalty or as a compensation, is related to the idea of vengeance
since
confiscation of property amounted to the economic destruction of the
offender, while a definite measure of damages according to tlie old German viewpoint presupposed an agreement. Consequently, along with
punishment by death or mutilation, there were numerous confiscations of
property.
The distinction between confiscation of property and "wette ",
busse ", is overlooked by Kstlin, "Krit. Ueberschau," Vol. 3, p. 183.
^*
Cf. in opposition to the opinions herein contested, the correct obser;
'
62
Chapter
II]
LAW
21
folk-laws,
in its
tain that
those
of
all
the
Germanic peoples
generally.
In
people were
the
Germanic
approach to outlawry as a consequence resulting directly from tlie act (and not as something inflicted
by the royal or judicial power as a punishment for refusal to
submit to the law, or as a form of attainder) ^^ is to be seen
sources, the nearest
only in the fact that, in the earliest periods, the party injured
was permitted to wreak vengeance upon the criminal,'^ to treat
vations of Von Woringen, pp. 103, 104, and Hugo Meyer, "Das Strafverfahren gegen Abwesende" (18(59), pp. 48 et seq.
^^ Von Amira, "Das al nor wegi sehe VoUstreekungsverf ahren "
(1874),
pp. 1-78, especially pp. 18 cl seq.
Cf. the comments of K. Von Maurer
in the "Mnchener kritische Vierteljahrsehrif ", 16 (1874), p. 83 et seq.;
[and Chap. VI, post].
1'
Loss of the general peace did not occur
Cf. Rogge, pp. 19 et seq.
until the offender had ignored the intervention of the communit.v, and
flid not heed the summons of the complainant to appear before the assemBut even tliis was not until the acceptance of this intervention had
bly.
come to be regarded as a legal duty. Tliis loss of the general i)eace in I lie
French and German sources because of the existence of a strong kingly
power appeared as a form of proscription. Cf. "Lex Salica" .l), 1 (Kd.
Behrend)
"Si quis ad mallum venire contempserit ... si nee de eomi)()sitione uec ineo nee de ulla legem lidem faeere voluerit, tunc ad regis privsentia ipso mannire debet
tunc rex
extra sermonem suum
2
ponat eum." Rogge, however, is mistaken in his view that at this time
the offender had the right to choose between "compositio" and feud.
The offender appears to have been absolutely bound to pay the "compositio" if the injured party so desired.
Cf. as opposed to Kogge, Eichhorn,
Von Woringen, p. 38.
I, 18, note G;
The development of the law in Italy as it appeared in the law of the
:
Lombards is in conformance herewith. The so-called public ("stdtische") ban which was so important in the later Middle Ages, and to
which so much attention is given by both the statutes and the jurists
was, in grave criminal eases, primarily a result of disobedience.
However, it became a punishment in so far as, on failure of an accused, whose
guilt was known, to pr(sent himself in the proper manner, the thouglit
of compelling him to appear became subsidiary to the idea of making tlio
ban (a partial or complete deprivation of legal protection) so severe that
it took tlic place of the ap|)r<)i)riat(' i)iinislun('nt.
Cf. FicL-cr. " Forseliuiigen
zur Reichs- und Rechtsgcsehichtc^ Italiens" (I, ISfiS). pp. 92 et .srr/.,
especially 97.
The statement that under some circumstances the mere
ban creating banishment was the equivalent of an independent punishment is not prejudiced l)ut is rather supported by two arguments
on
one hand, that if there was fear that disturbance and feud would result
from the continued residence of the accused in the city, this ])unishmeiit
was suggested by reasons of expediency, and, on the other, tlial if the
offender was not able to pay. l)anislimeiit must have been regarded as of
less severity than tlie puinsliincnt of mutilation which wouhl otiierwise
be inflicted. The CJerman " Kciclisacht" or " Iti'iehsaberacht " {i.e. ban
of the empire) is, according to a correct conception, a ban becau.se of disobedience and not "per se" a punisliment of certain crimes: FicL-er, pp.
174
et
^^
seq.
Cf. Eichhorn,
I,
18;
cl
21
[Pakt
I,
TiTLE
him
take
it
settle-
him by the injured party through the public assembly, or, at a later period, when the criminal ignored the summons of the king (or court) issued upon motion of the injured
ment
ofl'ered to
party.'-'
may
of this
by Wilda and
general yeace as
it is
a breach of peace
--
et
seq.;
and 249.
DC
XV
64
Chapter
II]
LAW
[21
is
though such
how
is
power that was increasing and becoming more vigorous, the public criminal
power was less in extent and weaker even under kings such as Charles the
Great? How is it to be reconciled ^\^th this \-iew that, as even Waitz
says (3d ed. p. 439), it was only the complaint of the injured party that
brought about a prosecution of the WTongdoer?
^^ Herein I am completely in accord with Lning, "Der Vertragsbruch
im deutschen Rechte", p. 48, who states that tlie feud was the only legal
consequence of a wTong in the earliest Germanic law. The feud was,
according to the " Lex Salica", ended by a pledge to render a composition,
It
The punishment
From the North German sources, it appears that offenses against morality
were treated with extraordinary leniency until the 1200 s. Bigamy <.;/.
was punished in Lbeck with quite moderate fines, (y. Frcnilarff. in thi'
"Hansische Geschichtblttern" (1874), I, pp. 30, 37 Hire, "Zeitsclirift
fr Keelitsgeschichte ", III, p. 210 el scq.
loreover, in the later South
German and Swiss sources unnatural lewdness is frequently referred to as
"Ketzerei" ("heresy") and "Unchristliches" {cf. Osetihriiygcn, "Das
Alamannische Strafrecht ", p. 289), a positive e\-idence of the origin of the
legal rules dealing herewith in the influence of the Church.
\
65
22]
was, in
its
and those
I,
Title
[Paut
its
consequences.
and
of the
Church (including
Other examples
or court assemblies or the army or the Church).
of a " peace " applied to the home, the mill, the royal palace or
generally the place of residence of the king (or duke), or else
travelers.
Now
a breach of such a
lawful feud.
The language
is
unequivocal.
in
any
case,
be an offense
e.g.
INIention
is
nothing
It
by the
This referred
").
Cf. e.g. "Lex Salica" (ed. Behrend), LXIII. 1: "Si quis hominem
." "Lex Sax.", XXI_, " Qui in ecclesia homiingenuum in oste occiderit
"
XXIH, "Qui
nem Occident vel aliquid furaverit vel earn effregerit
insidias posuerit
homini ad eeelesiam vel de ecclesia die festo pergenti
eumque occiderit"; XXVII: "Qui hominem propter faidam in propria
domu occiderit capite puniatur." Here the home and the peace of the
home does not constitute an exception. It was originally regarded as a
violation of the peace of the home only if one entered a house with violence
\\\\.\\ a view of committing an act which was of a criminal nature apart
from this special circumstance, e.g. to kill, to steal or to commit an act
in pursuance of a feud.
Entrance leith arms (mth or vvnthout the consent
of the person dwelling in the house) was deemed the equivalent of entering with violence.
C{. "Lex Rib.", 64 (66)
"Lex Burgund.", XV; "Lex
Bajuv." (Textus I), "XI, "De vlolentia." In "Ed. Rothari", 278 it is
even stated: "Mulier curtis rupturam facere non potest,
absurdum
videtur esse, ut mulier libej-a aut ancilla quasi vir cum armis vivi facere
possit."
However, this rule was abolished in the law of the Lombards.
2 If as e.g. in the "Cap. Karoli M." a. 803 [Pertz, "Legg", p. 126 it is
said: "Ut ecclesia, vidua?, orfani, vel minus potentes pacem rectam
habeant.
Et ubicumque fuerit infractum sexaginta solidis componatur ",
yet it is only meant by this that violence under the justification of selfredress is not to be exercised against the parties named.
'
66
Chapter
II]
LAW
[23
of violence
*'
calculated with a
In the
of
the
offense,-
certain
pro\isi()ns
'
G7
24]
])iinisli
Injuries to
[Pakt
is
I,
As
TiTLE
to viola-
24.
The
The
without premeditation.
his
serf
deliberately, paid
to
lord, for
example,
who
instigated
kill
no more
perhaps
visions
it
For injuries
required for a blow with the fist than for a blow witha club.
to the person, e.g. the cutting of the hair or beard against one's will, cf.
"Lex Alam. Hloth." LX, n. 23, 24. As to pulling the beard, see the
statutes of ^thelbirht Kap. 1, n. 23 ("feaxfang"), Schmid, "Ges. d.
Angelsachsen" (2d ed.), pp. 6 & 7; " Ed. Roth.", 383. As to closing of
("De via lacina"). As to the improper or
a road, "Lex Sal.",
lewd grasping of a woman (even the simple touching of an arm or finger),
"
there was imposed by the Lex Sal.", XX, a penalty of 15 " solidi.'' Rape
" Lex Sal.", XXV,
is mentioned often and as one of the graver crimes {cf.
l,"Ed. Roth.", 186).
" Lex Sal.",
'
reproach of cowardice: " Si quis alteram leCJ.
borem (leporem) si clamaverit." "Lex Sal.", XXX, .5: "Si quis alium
arga per furorem clamaverit." (" Ed. Roth.", 381.) It was considered even
more serious if one accused another of having cast away his shield in
battle : Grimm, p. 644 et seq.
XXXI
XXX;
Cf. "
"
Thus, as a
the actual
{cf. e.g. VI, 5, 12) often punished the instigator the same as
perpetrator, and caused public punishment to be inflicted upon all the
perpetrators of a homicide where there were more than one.
If one
5 The "Lex Fris." (II, 2) is also interesting as to this matter.
free man had instigated a second free man to kill a third, and he who
did the lulling had not escaped, but the relatives of the slain were able
to make a demand upon him, then the law did not concern itself with
the instigation but regarded merely the manifest act of the actual perpetrator.
But the instigator must see to it how he may appease the rela-
68
Chapter
II]
LAW
24
This
side of
velopment
is
is
inadequate,
it is
in the ease of intentional iKjmieide (by instigation of a "servus") gave the relatives the ehoiee lM>tween "compositio"
and "faida" (feud). If the homieide merely resulted from negligenee, a
"compositio" was to be paid and aecepted, "exeepta faida." Cf. also
" Ed. Roth." 75, 138 (147) showing a greater progress in legal development
"cessante faida, quia nolendo fecit."
" I liave endeavored to give a more exact statement of these ideas in
my
69
21]
[Pakt
I,
Titlk
by custom, and
later
so to do, since
a.
The
element of secrecy ^^ obtained an early prominence in the conception of crimes. By secrecy the offender
fixed upon his act the character of unlawfulness, not capable
Secrecy.
Thus the
justification.
of
Mord
satisfaction
required
for
murder
a slaying followed by a concealment of the corpse,^was especially severe. Moreover, the conception of theft, at the
time of the early law-books, and even later, involved the idea of a
("
"), i.e.
It
of the cowardice of
outlawTy.
10
Cf.
ferrum
"Lex
e.g.
Sax.",
LIX.
No
percusserit."
fold
70
Chapter
LAW
II]
25
an
ing
artificial
where the
self-redress
man
killing of a
was
or the taking
possible, in times
regards
itself
supreme guardian
as the
even
if
primarily directed
the Merovingians
robbery
and
we
find the
for theft,'*
in cases of theft.''
We
its
own
enactment
authority.^
of the
As
early as
of private settlement
There is also the provision that the thief should pay his "weret seq.).
peld" as a "fredus" ("Lex PMs." Ill, 1, 4). This also explains the unlimited right of vengeance in such cases, according to some passages.
This right was supplanted by public punishment (see post).
'"Regum officium est proprium facere judicium et justitiam" says
Cyprianns in c. 40 of the same:
Uicrnniimus c. 23 C. XXIII. qu. 5.
"Rex debet furta cohibere, adulteria punire, impios de terra perdere,
parrieidas et pejerantes vivere non sinere."
Cf. also Jnrcke, "Handbuch", I, pp. 21, 22 note. Waitz, II (2d ed.) pp. 155 et seq., IV, p. 447.
"Cap. Aquisgran." e. .'52, 33 {Perlz, "Legg.", I, p. 95).
2 The indefinite conception of "fidelitas ", fidelity to the ruler and also
to the law enacted and administered by him (to which conception it often
appeared that no limits were set), undoubtedly furthered the develop-
ment
'
^
I,
p. 3).
^
"Qui furtum
Cf. the "Pactum" (n. 3) cited in the preceding note.
vult celare et sine judice compositionem acceperit, latroni similis est."
"Childeberti I'l deer.", a. 590. n. 7.
/"Childeberti II deer.", a. 590. n. 2 and 5. This latter provision
points to a theological origin.
* In the law of the Lombards there was, in certain cases, alhnvcd to her
relatives a right to punish a woman criminally; but tlu^ criminal law of
the king had a subsidiary jurisdi(!tion.
Cf. "Ed. Roth." c. 221, also
Pasquale dd Giudice, p. 23.
71
25]
[Pakt
I,
Title
" in tlie enactment and infliction of punishunder the Carolingians certain humiliating^
" were inflicted, along with the
penalties known as " harmiscara
ments, and
esj^ecially
royal })an.
^^
Most
of
all,
community
(falsification of
documents), and
perjury.^''
But
even in these cases, the penalty of cutting off the hand (the member with whieh the crime had been committed) could be avoided
by a payment of money.^16
9
As
et seq.
to "harmiscara",
cf.
the same,
IV", p.
445.
10 With the exception of the "Lex Visigothorum ", in which there was
significant union of the principles of the Roman and Germanic law.
11
"Cap. Aquisgran.'', a. 817,
In exceptional cases, the death penalty.
"Si quis aut ex levi causa aut sine causa
c. 1 {Pertz, "Legg." I, p. 210)
hominem in ecclesia interfecerit, de vita conponat." (Cf. Waitz, IV, p.
Furthermore, in other especially grave cases recourse might be
231.)
had to the Constitution of Childebert, which had not been formally reThus it is stated in Cap. a.d. 779 ("Francicum") c. 8: "Ut
pealed.
homicidas aut ceteros reos, qui legibus mori debent, si ad ecclesiam conPunishment
fugeruit, non excusentur."
Cf. also c. 8 of "Cap. Langob."
of murder of relatives in Cap. a. 803 in "Lex Sal.", n. 5 {Pertz, "Leges",
"Si quis de libertate sua fuerit interpellatus, et timens ne in
I, p. 113)
servitutem cadat aliquem de propinquis suis, per quem se in servitium
casurum timens oceiderit, id est patrem, matrem, patruelem, avunculum
vel quemlibet hujusmodi propinquitatis personam, ipse qui hoc perpe."
traverit, moriatur
12
Thus King Rothari ("Ed. Roth." 74) stated that he had raised the
amounts of the compositions for the purpose of thereby restraining feuds.
Cf. also the memorial of the bishops to the king in tlie year 829 {Pertz,
"Leges", I, p. 340).
""Cap.",
{Pertz,
patibulos habeant."
" "Cap. Hlotharii
", I, a.
832,
e.
10 {Pertz,
p.
361)
"manus
ei
ampute-
tur."
The writer of false documents originallj^ lost his thumb later, his
right hand.
1 As to the ransom of
Perjury
the hand, see Waitz, IV, pp. 435, 436.
was very prevalent under the later Carolingians.
1^
72
ChaptF-R
II]
Criminal
LAW
26
Roman law of
command also had
the
the king.
The
guilty party
The penalty
ofi'enses
law,
his house).
1^
seq.;
18
As
cf.
especially PTaiiz,
II
{i.e.
p.
in
slave,'et
472.
For illustration of the acts punishable by the roj^al ban, cf. e.g.
Cap. A.D. 811. "de exereitalibus ", c. 2-4 {Fcrtz, p. 169, 170).
2 One may compare the eight earl.y cases where the ban was used,
mentioned in "Cap. de dorainico" {Perlz, pp. 34, 35). In cases two,
three, and four,
"Qui injuste agit contra viduas", "De orfanis",
"Contra pauperinos qui se ipsos defendere non possunt", feud and self(Possibly they
redress against the persons mentioned was prohibited.
apply also against unjust complaints, because of the danger of trial by
battle.)
In cases five, six, and seven: "Qui raptum facit, hoc est qui
femiuam ingonuam trahit contra vohintatom par(>ntum siiorum", "Qui
incendium tacit infra jiatriain, lioc est qui inecndit alterius casam aut
scuriani", "Qui hari/Juit facit, id est qui frangit alterius sepem aut portam aut casam cum virtute", acts which had previously been unlawful
Case eight: "Qui in hoste non
are subjected to public punishment.
vadit" has reference to the military system. Case one: "Dishonoratio
sanct? eeelesijB" has to do with the protection of the legal institution of
the Cliurch.
Cf. "Cap. Saxon. Aquisgran." a. 797 pr. {Pertz, p. 75);
Add. Vn. to "Lex Bajuv.", 1 (ed. Merkel, Pcrtz, " Legg.". III. p. 477).
Cf. " Epist.
Tluis the King took foreigners also under his protection.
Karoli M. ad Offam regem Marciorum " a. 796 (Walter, "Corp. J. Germ.",
'"
'-'
II, p. 125).
"Germania", c. 19.
"Zur strafrechtlichen Stellung der Sclaven "
73
'
Cf. Tacitus,
Jastrow,
Georg Meyer in
26]
[Pakt
I,
Title
"
85
Abtheilung" (1881),
p.
et seq.
3
Cf. Walter, II, 388; Waitz, I, p. 183; Tacitus, "Germania", e. 25:
"Verberare servum ac vincuUs et opere coercere rarum oecidere solent,
non disciplina et severitate, sed impetu et ira, nisi quod impune sit."
Pasquale del Giudice, p. 24, 25, believes that, according to the Lombard
law, the master exercised a despotism over his slaves that was subject to
no legal restrictions. "An. Liutpr." (Neigebaur) 56: " Ipsi vero domini
distringant et inquirant servos sicut ipsi amant" ("Cap. Pip" a. 802, c. 16,
Pertz, "Leges", I, p. 105).
The criminal power of the master was originally merely an incident to his right of dealing with his slaves in any way
he wished.
*
Cf. concerning the punishments used against those who were not
whipping, castration, cutting off of the hand, putting out of the eyes,
free
capital punishment,
G. L. Von Maurer, "Geschichte der Fronhfe in
Deutsehland" (4 vols. 1862, 1863), I, p. .533, 534. In the beginning there
was a sharp distinction between those who were not free and the "liti"
{i.e. serfs), although the latter could also be subjected to punishments of
life and limb, while free men were penalized with money {Maurer, p. 535).
However, a master could in many cases ransom his slave.
^ "Lex Sal.", 12;
"Lex Ribuar.", 58, 17 and 18; "Lex Alam. Hloth.",
:
38, 2.
* The master who would neither assume or excuse the act of his slave
surrendered the offender to the mercy of the parties injured, i.e. the kinsmen of the slain. "Ed. Roth.", c. 152 "sic tamen ut servus vel ancilla
ad occidendum tradatur ut iiulla sit redemptio aut excusatio mortis ser\-i
vel ancillae."
Cf. Pasquale del Giudice, p. 29.
^ Whipping as a punishment of free men of lower rank is often mentioned in the time of the Carolingians (cf. Waitz, IV. p. 436)
e.g. if anyone without sufficient grounds appealed to the judgment of the king
(came to the palace of the king). "Pippini cap." 7 {Pertz, p. 31) ("Si
major persona fuerit, in regis arbitrio erit").
* Cf.
the especially important development in these matters in the
Anglo-Saxon law, in J astro w, pp. 43 et seq.
:
74
Chapter
II]
LAW
26
and
in cases of
Thus the
" solidi."
Among the
Franks, for example, the corpse was placed upon a " bargus ",
exercised publicly in order to be legally justifiable.
a " clida
",
tions
by the public
much from
of
authorities.
when the executions were arranged and carried out with great display by some individual possessed of great power and prominence.
Thus private compensation often passed into public punishment.
Furthermore, in those frequent cases in which unimportant
freemen {e.g. those who did not possess others as serfs or slaves)
were unable to pay the large amounts exacted as damages, some
form of public punishment, e.g. corporal punishment or even mutiThis was furthered
lation, would readily seem to be appropriate.^^
by the fact that these punishments ^^ would appear less severe ^^
than being reduced to a condition of bondage for debt.'^
Waitz, II, p. 614.
Cf. also Roth,
in Deutschland", 1879, pp. 21 et seq.
'"
""Lex
"Geschichte
d. Forst- u.
Jagdwesens
el seq.
Burg.", 12,
3.
1^
Cf.
We
also find tliat, in tlie criminal procedure, legal rules which earlier
were only applied to the disadvantage of the unfavored classes were later
Thus, according to the earlier Banibi-rg
applied to the privileged classes.
In tho
code, only a non-citizen could be restrained and imprisoned.
course of the 1400 s this distinction ceased to exist Bruiincnmeister, " Die
Quellen der Banibergensis" (1879), p. 44.
' The criminal law of the West (loths was to a certain extent typical
1*
75
26]
we
idea of public
I,
punishment was
find capital
[Part
Title
clearly
In such cases
But, as the great mass of the people lost more or less of their
freedom and were reduced to a condition of poverty, this idea
erty.
Church.
of the criminal law of the later Middle Ages, however with certain desPunishments which elsewhere were applied only to slaves,
potic additions.
especially flogging, were (although many distinctions of rank were made)
The law of the West Goths sought a
also applied largely to free men.
But herein it often
better conception of the subjective side of crime.
lapsed into provisions of a false moralizing or theological nature and also
an erratic zeal for deterrence and punishment. It combined in a peculiar
manner the Roman and German law. Cf. also Dahn, pp. 141 et seq.
76
TITLE
II.
CHAPTER
III.
CHAPTER
IV.
CHAPTER
V.
CHAPTER
VI.
77
Chapter
III
27.
30.
3L
"Law of
Penance."
Temporal
Other
Influence
Characteristics.
Different
of
Criminal
Church.
of
State.
Growth
of Criminal
32.
Power
Heresy.
Law.
Law
of the
Ideal
of
Divine
and
the
Mosaic
Justice
of
Privilege of
the Church.
Union of the
Clergy.
Laws of the
Criminal
29.
"Poe-
Periods.
the State.
The Disciplinary Law of the
Church. Its Similarity to
the Criminal Law of the
28.
Jurisdiction.
Ultimate Effect of
the Criminal
Law
of
the
Church.
Excoirununication
27.
Law
of the
to expel those of
rules. ^
1
may
its
the
members who
it
Foundation
of
association has
is
will
tlie
the
Criminal
natural right
not conform to
its
general
1831)
ed.).
If
as
Every
Church.
(cf.
1,
also E/f/f/fo?-,
10."),
10(),
108
et
79
27]
it must
must be placed at
[ParT
I,
TiTLE
II
})e
coercion, or there
its
sory enforcement of
its
orders, the
itself
ties.^
forbade
it
It
is
refractory
sion.
To
To
its
early
periods,
self-evident
compul-
was constantly
avoid subjecting
itself
to further perse-
civil
authori-
The
its
of the State.
as a necessary evil.
cution,
in
power
punishment of the Church is merely excommuniwhich when applied to the Clergy necessarily amounted
since expulsion from the association carried with
to dismissal
it removal from offices held in the association.
The association
in question was, or appeared to be, of vital importance for the
oldest
cation,
welfare or
woe
of the individual.
if,
in this
and
additional and later literature, see Aichner, "Compendium juris ecelesiastiei" (Brixen, 1890); Bouix, "Traetatus de principiis juris canonici"
(Paris, 1882); Brosij, " Kirchenreeht " (Berlin, 1890); Cavagyiis, "Institutiones juris publici ecclesiastiei " (Roma, 1912)
Phillips, "Leln-buch des
Kirchenrechts" (Regensburg, 1872-1889); Snnt, " Prielectiones juris
canonici" (Regensburg, 1886); Albrecht, "Verbrechen und Strafen, als
Seheidungsgrund nach evangelischen Kirchenrecht" (Berlin, 1903);
L. Kahn, "Etude sur le delit et la peine en di'oit canon" (Paris, 1898);
Silbernagl, "Lehrbuch des katholischen Kirchenrechts" (Berlin, 1913);
Hinschius, "Kirchenrecht" (1869-1897).
(Von Thot)].
^N. T., I. Corinthians, vi, 1 and 2 el seq. Cf. Du Boys, "Histoire du
dr. crim. des peuples anciens", pp. 610 et seq.
3 N. T., Matthew, xviii, 15-17.
* Cf. also Edg. Lning, I,
pp. 252 et seq.
:
80
Chapter
111]
27
rein-
statement.
Comprehensive Nature
The
acteristics.
the entire
of the
duties of the
of the individual.
life
Church
Other Char-
theoretically
embraced
spection,
sisjnificance.
Thus the
in its scope.
And
so
it
Middle Ages.^
Their rules extended to excesses of every charand even to uncleanIt was, however, only a system of moral law, a law aimlines'S.
ing to bring about a reconciliation of the guilty with God and the
Church, that assumed this wide jurisdiction.
This law could
be applied only in cases of grave and notorious offenses, or by
acter, to passions such as greed, pride, envy,
were
penalties,
and
Influence
of the State.
to
crimes.
In the
This portion
of the State
the different
place,
first
it
penalties
In the next place, an act for which the Chnrch did not
a penalty at
of
not
of acts,
all
and
inflict
(in
81
28]
[PAUT
I,
TiTLi:
influence
reformation.
The requirements
The Disciplinary Law of the Church.
an organization as the Christian Church could
not be met by a criminal law" applicable only in cases where there
was a voluntary confession of guilt or where the offense chanced
The inadequacy of such a law was especially
to be notorious.
evident in its bearing on the non-performance of their duties by
28.
of so extensive
procedure,
acts
that
and
were
also reached,
neither
by a
special
admitted.
Its
Law
of the
offenses
criminal
nor voluntarily
notorious
State.
In
these
different character.
It
82
Chapter
III]
The
down by
29
significance,
its moral
but also according to certain external characteristics
effects.
Moreover, the influence of a powerful religious organizawhich has a firm hold upon the entire people is such that it
can easily cause the civic community to punish acts which it has
heretofore left unpunished. The Church then turned over to
the civic power many cases formerly punished by itself, since the
acts.
tion
civic
29.
still
ment
et seq.).
known, the chief sanction used by the Church was excommunication. The Church even prohibited business transactions with the
excommunicated, although in the l-)eginning this was so only where the
punishment was "excommunicatio major." Cf. Richter (Dove), "Lehrbuch" 214, note 13. Excommunication carried with it incapacity to
bring a suit or to act as a witness, and incapacity to fill the office of judge
even of a civic tribunal. Cap. X. 2, 25,
c. 7 X. 2, 1
c. 38 X, 2, 20.
According to the ordinance of Emperor Frederick II. (.\.d. 1220 c. 7,
^
As
is
well
Perlz,
"Alonum." IV,
p. 236), civil
in "greater"
''
83
29]
[Part
Title
I,
II
yet the Church In the Middle Ages went far l)eyond the bounds
appropriate for a reUgious organization. This requires for its
explanation a review of
its historical
Roman
Church
only the
84
Chapter
ment
III]
The
to a cloister).
all
29
'
In its place there was applied to clericals the Church's disciplinary powers. Thus in the " Edictum Pistense " (a.D. 84) ^ it is
stated ^ " Et de tali causa unde seculares homines vitam per:
episeopis
'
"De
Pertz,
"Leges",
I,
p. 14.
*"Ut
crimen", n. 7.
9 c. 20 (Pertz, p. 497).
'"The mild punishment of the clergy (cf. the so-called "Const, paeis
Dei" Heinrich IV, a.d. 1085, Pertz, "Leges", II, p. 58 "Unde laici deeolunde laici detruncantur, inde clerici ab
lentur, inde clerici degradentur
officio suspendantur et consensu laicorum crebris ieiuniis et verberibus
usque ad satisfactionem affligantur ") the provisions exempting the clergy
from the criminal jurisdiction of the civic authorities (in the "Sententia
Henrici regis" a.d. 1234, Pertz, "Leges", II, p. 302); the fact that the
tonsure was often conclusively' accepted as proof of being one of the clergy
(cf. concerning this and concerning the claim of the Church to base its own
:
buch ", c. 168: "Pfaffeiui dye nicht beschornn sein vnnd nicht pftllieh
gewantt an yn tragenn, vnd frentt sy messer oder swert oder annder
waflfenn oder vindet man sy in di>m frauenhaus oder in ainem leuthaus, dye
There is a somewhat
sol man richten als ainem andernn layenn. ..."
Concerndifferent provision in R. von Frcising, "Stadtreehtsbuch ", c.lG.
ing the later custom in Italy, cf. especially Dcciatjus, "Practica crini.",
IV,
tur.
c.
9 n. 106 "Ut clericus possit a laico detineri et puniri sex requirunPrimum quod non incedat in habitu et tonsura. Secundum quod
:
85
29]
[Pakt
I,
Title
II
dunt,
inde
over, as
is
clerici
well
by a
religion
who, strong
in their
own
fear
And
this
was generally
even though the Church was governed by motives of prudence in lending its services. The kings therefore accorded to the
criminal power of the Church the most thoroughgoing support of
the temporal courts and officers,^^ for the enforcement of every
true,
ingerat se enormibus.
Cf.
also
Gandinus,
"De
malef.
Rubr. de
86
Chapter
III]
penance. ^^
29
officials of
the king
On
and
exercised, in
respect to their judgments (at least where the laity were inxolved)
civil officials,
extremity.'^
last
Consequently
support each other, that the ci\nl judge can have recourse to the bann of
the Church, and "vice versa" the spiritual tribunal, if it fails to accomplish its purpose by excommunication, can resort to ci\il outlawry, and
even that this punishment last mentioned atttaches itself ''ipso jure" to
excommunication of long standing. Cf. '"Friederici II. imp. confoederatio cum principibus ecclesiastieis ". a. 0.1220 {Pertz, " Leges ", II, j). 236)
"Et quia gladius materialis constitutus est in subsidium gladii spiritualis,
si excommunicatus in ea ultra sex septimanas perstitisse
nobis constiterit, nostra proseriptio subsequatur, non revocanda nisi prius excommunicatio revoeetur." The "Sachsenspiegel", III, G3, 2, however,
denies direct effect to the ban of the Church cf. "Schwabenspiegel Vorw."
In England there was a special warrant of arrest, the \\Tit "De excommunicato capiendo"; the excommunicated was placed in the county
prison until he relieved himself of the excommunication
Folkard,
cf.
"The Law of Libel and Slander" (London, 1876), 4th ed. p. 77.
.
"De syn.
c.
(in
the early
900 s).
" "Cap. Karol. M. Paderb." (a.d. 785) "De partibus Saxoniae", c. 14
"Si vero pro
{Pertz, "Leges", I, p. 49; Merkel, "Lex Saxoiuim", p. 17)
liis mortalibus criminibus latenter commissis aliquis sponle ad sacerdotem
:
in
Deutschland",
III,
p. 633.
87
30]
criiiihial
[Pakt
I,
Titlk
II
well as
spiritual.
is
It rested
civic
88
Chapter
III]
30
after a
The
nal.
latter,
if
in consideration of
and
was hereby
placed upon private vengeance, and the State's criminal power was
rendered more lenient. The latter, to be sure, was thus often
weakened and hindered, to the sacrifice of the public safety.^
Acquisition by Church of Temporal Jurisdiction.
Yet another
indirect influence of the Church upon criminal law deserves consideration.
In the ^Middle Ages, the Church came into possession
of a great number of the civic tribunals.
Thus it was enabled
substantial restriction
to administer justice
and
in
(i.e.
that civic
officials in
civic justice)
civil
Church and
its
criminal law."
Moreover,
abstrahere ausus sit, postquam januam eeclesise intraverit, donee interpellat presbyterium ecclesiae vel episcopum.
Si presbyter repripsentare
ausus fuerit et si talis culpa est, ut dignus sit discipliiia cum consilio
sacerdotis hoc faeiat, quare ad eeclesiam confugiuiu fecit.
Nulla sit
culpa tarn gravis ut ^ita non coneedatur propter tiinorem Dei et reverentiam sanctorum, quia Dominus dixit: Qui dimiserit, dimittetur ei
qui
non dimiserit nee ei demittetur." Cf. eoncerning the later treatment of
the right of asylum, the (exceedingly canonistic) description of Tiberius
Decinnus, "Practica er.", VI, c. 25 el seq.
* The right of asylum of
the Church contributed much towards the
The Icings, looking
substitution of composition for private vengeance.
at the matter from their own point of view, had sufficient reason to sanction this right of asylum and to extend to it their protection: Pardcssus,
"Loi Salique", p. 656.
^ The ban of the Church was the penalty attached to a violation of the
However, in those times of violence there were frequent
right of asj'lum.
violations of the right of asylum, as also of the oath whereby the pursuer
bound himself to be satisfied with the penalties levied by the Cluirch.
Abuses of the right of asylum in the case of grave crimes must have
soon arisen.
Cf. Cap. a.. 779 (Francicum), c. 8 {Pcriz, "Leges", 1,
Necessities of life were not to he furnished the criminal ("homicip. 3(5).
das aut ceteros qui legibus mori debent" runs the passage), and he could
also be compelled by hunger to leave the place of refuge.
Cf. also " Lex
"Capitis damnatus nusquam habeat paeem.
Sax.", XXVI II (ed. Merkel)
Con(;erning such exceptions (murSi in eeclesiam confugerit, reddatur."
der and dishonorable offenses) in other free States at a later period, see von
Maurer, "Geschichte der Fronhfe in Deutschland", IV, p. 2.50.
' For example, fundamental rules and customs of
which the Church
distinctly disapproved could hardly maintain themselv(>s in such courts.
For a ease of this kind, cf. c. 2 X. " Di' delictis puerorum", , 23; au
abbot acting as judge of a court iutlicted a money tine upon a boy not
;
89
31]
tliis
[Part
had at
its
disposal
its
weak and
own system
Title
II
In a time
I,
when the
Church
uncertain, the
of law, both
comprehensive and
marked by
ferent Periods.
These
Church at
different periods.
To
punish crime was a concern of the Church since all true crimes
are also violations of morality and imperil the soul of the criminal,
it was not difficult to discover that the Church also was concerned
in punishing many crimes which were already punished by the
;
State,
Thus
and to lay a basis for using the criminal power of the Church.
there were included, under " delicta mixta " or " mixti
and breach
disputes
among
90
Chapter
III]
31
many
that
of
Defects of Criminal
Law
of the
Church.
itself
its
Thus,
scope,
one defect
due to the fact
Cap. 20, X.
"De
V.",
p. 5,
40 (Innocent
Til).
interdict was nothing other than a modified application of excommunication to all places and rej^ions.
Ecli, "De natura poenarum secundum jus canonicum"
(IStiO), p. 30.
The
Theoretically these two varieties of punishment are very different.
"poena medicinte" has reg:ard only for the intention which is deenu-d
equivalent to the manifested act ("in maleficiis voluntas pro opere reputatur" is ^\Titten before C. 2F>, D. I. "De po^nitentia", and in C. 29, ul., it
says: "Si propterea non facis furtum quia times, ne \idearis, intus fecisti
furti teneris, et (si) nihil tulisti "), and repentenace may at least remove
.
a portion of the culpability. Tlie " pcpme vindicativie" luive as their
purpose the separation of the guilty, as a corrupt part of the body, from
the Church, c. 18, C. XXIV, qu. 3, or else have the purpose of deterring
others, c. 1, X, 5, 26.
^
The
91
32]
of the
Church
and
also a fluctuation
The danger
to
its
with
[Paut
Titlk
I,
between a concern
its
for real
manifestations.
external
II
is
apparent
in its
or transgression.
of indulgences,
obtained.
By
it is
possible to reach
If we
we must
by human
agencies,
92
Chapter
111]
it
[32
found later no
diffi-
culty,
it
had
abhorrence of punishments of
life
in
or blood,
and that
asylum.
its
it
also
right
of
itself
was
relieved of every
explained
doubt as to
that fanatical
tenacity
its
own
infallibility.
Thus
is
with which,
itself
authorities.
But the death of one declared guilty of the "phaffen" followed as a matter of course (c/. c. 18, in VI. "De liipret.", 5. 2). Theoretically the secular jurists maintained the right of the civic judge to make
an investigation of the verdict of the spiritual tribunal (r/. e.g. Bariolns in
"Leg. Div. Hadrianus", [7] n. 3, D. "De custodia reorum", 48, 3) but as
a matter of practice this was not done, or else it was expressly rejected in
the statutes (cf. "Augsburger Stadtr." 127(5, ed. Meyer p. 106, Art. 32;
"Sch\va])enspiegel", ed. Lassberg, 313, "Bambergensis", 130: "Item wer
durch den ordentlichen geystlichen richter fr einen Ketzer erkant und
;
dafr dem weltlichen Richter geantwort wurde, der soll mit dein ft-wer \m
leben zmn todt gestrafft weden").
Cf. also Osenbrggen, "Das Alamannische Strafrecht", p. 375.
Also Clnrus, fin., qu. 9(5, n. 7, denies that
the civic judge has the right of examination, althougli the judgi's had
usurped this right in certain cases, so that recently Philip II at the Senate
There
of Milan had made unconditional execution of the sentence a duty.
was a direct coercion to remain in the Church. If a Jew once converted to
Christianity again became a Jew, he was put to death by burning. " Sehwabenspiegel" (ed. Lassberg), 262.
The extent to which the Churcli lost
all sense of justice towards real or alleged heresy is shown e.g. in thecollcction of extravagant principles of persecidion (for one should not call them
principles of law) found in Tib. Decianus, V, c. 20 (" Ihvresis s]HH*ialia").
The heretic e.g. lost "ijxso jure" the ownership of all his proptTty, his
descendants to the second degree had no legal rights, he became "infamis."
His sons lost their fiefs. Alere "cogitatio" was subject to punishment.
Even apart
There were also rules of procedure that were monstrosities.
from cases of heresy, the Popes at times favored provisions that were
clearly unjust.
T/. e.g. c 4 in VI, " D(> pciMiis", 5. <), directed against
those who injure a cardinal, and (in analogy to the statutes of the Roman
The
despots also) visiting the penalties even upon sons and grand.sons.
signihcunt analogy of heresy to "lse raajeste" appears ia L. 4, 4, c. 1,
5 (by Theodosius).
93
32]
[PaRT
I,
it
men
Amidst
well into
TiTLE II
is
in later practice
and
So,
dominant
make
legislation to
became later the province of the police powder of the city or State.*
Thus the Church laid the foundations for the later omnipotence
of the State.
Law
of the
Church.
long^
The weakness
of the
medieval State
This weakness
made
their
had
its
itself
of the
individual liberty.
less,
for the
in the main,
ele-
c. 63, 84,
D.
"De
poenitentia."
94
Chapter IV
34.
F'euds
Self-Redress.
and
The "Landfrieden."
Changes in the Theory of
the Punishments.
Failure of the Law.
Incidental
Circumstances
35.
39.
Having
Specific Crimes.
30.
37.
38.
Influence.
tlement
The
in
Demorahzing
Private SetCases of Crime.
"Grace"
of
the
Peculiar
Customs. Influence of Accidental
Circumstances.
Uncertainty of the Court
Procedure.
RuliTS.
Other
Severity of the
ceptions.
33.
Even
may
95
33]
[Part
I,
Title
II
Nothing
either in
Germany
not
is
or France,
96
Chapter
is
IV]
S4
position of the serfs, the verdict of the lord or his officials, the
" Schffen " (who, as in the local courts of the counts, were the
parties rendering judgment),
tives.
it
And,
finally, it is
money
to pay a
a non-legal circumstance,
fine for a
was possessed
one considers
lord
if
of the
power
punishment.
Since the
of acting as magistrate
i.e.
and was
the empire,
was not difficult for him to commit any oft'ense he might wish
under the guise of a feud or even in the exercise of magisterial
power. It is therefore incorrect (as e.g. Kstlin has done) to
maintain, that in the case of those of high rank, criminal law legally
lost its true character and became merely a feudal criminal law.
Sentences to death of persons of the rank of count or prince are
quite frequent in German history, although in the post-Carolingian period such sentences could be executed with difficulty.
There can however be no question but that harm resulted from
it
punishment.
of ])ublic
to one's
own
The
still
of small
the idea
upon him
This
in
of a loss,
Feuds and
Self- Redress.
and also as an
number
made of
among
the charters
law lay
in
ance, a free
strength.^
man
This
riglit
now became
t)f
all
were vassals of some feudal lord, punishments of life and linil) were in
wider use than where the population was made up of a grouj) of free men.
Here I agree with the eonclusions of von Wchter ("Allhandlungen",
II(> who raised a feud staked everything on his sword, and if
p. 2.51).
There is notliing
necessary the other party eould rely on his own sword.
to indicate that it was the duty of tin- individual against whom a feud
was raised to offer himself witli tied hands as a defenseless victim for
vengeance. Such an obligation would be nugatory,
'
97
34]
power
of the courts
was
feeble, it
self-redress
or
It
was
[Part
In those times
I,
Title
when the
difficult to enforce
an abso-
self-defense
against
another's
self-redress,
property by
fire
'*
"lese majeste."
* The
"Landfrieden" contained not only provisions concerning the
breach of the peace, but also criminal rules of any nature whatsoever, such
as proof
(especially
by
oath), duelling,
and
police regulations.
They
covered the entire kingdom, or a great part of it, and applied to all inhabitants and all classes in so far as the degree and kind was not expressly
The "Landfrieden"
fixed in accordance with the rank of the offender.
of the Empire served as a model for the "Landfrieden" of the pro\inces,
and to a certain extent for the statutes of the cities. The princes might,
if they chose, cause the "Landfrieden" to be supplemented {cf. "Landfrieden" of 1287, 44, Perlz, "Mon. Legg." II, p. 452). As to the sigAs
nificance of the "Landfrieden", cf. notably Waitz, VI, pp. 419 et seq.
to individual "Landfrieden", cf. von Schulte, "Lehrbuch der D. Reichsu.
Rechtsgesehichte", 3d ed., 73. Also cf. Gierke, "Das deutsche
Genossenschaftsrecht", I (1868), pp. 501 et seq.
^ The "Landfrieden" should not be confused with the "Gottesfrieden"
("Treuga Dei", Truce of God) introduced by the efforts of the clergy
(first in France, but also in Germany).
This provided for a cessation of
feuds on certain days of the week and certain seasons of the year, and also
that certain classes of persons should have a continuous peace (i.e. should
not be subjected to acts of \aolence done in pursuance of feuds). Cf.
Pertz.
a.d. 1085.
the so-caUed "Constitutio pacis Henrici IV. Imp."
"Mon. Legg." II, pp. 55 et seq. "Sachsenspiegel", II, 66. The only
penalties for breach of the "Gottesfrieden" were those of the Church
(excommunication)
98
Chapter
IV]
34
preliminary challenge
first
plained by the idea that, for this fixed period, there was established,
as
it
anyone who
alleged
fictitiously
things ("res").
{Cf. "Henrici I. treuga" presumably
Violence (for the most part
of A.D. 1224, Pertz, " Legg." pp. 266 et seq.)
was to be directed against persons and not against things. Consequently
setting anything on fire was (as a rule) unpermissible.
Cf. Kluckhohn,
p. 144.
Cf.
Rudolph
lich
einnemen
solle."
99
34]
mentioned
in
[Paut
Tliis
I,
TiTLE
II
however did
the character of
afl'ected
frieden " also furthered the idea of public punishment, since their
with the
loss of
Among
^'^
a hand.^^
and not belonging to the knighthood, or united in a city, the reasons for peace in the sense that one could not by violence procure
redress against his fellows, were self-evident.^- The small group,
standing apart from those outside, could permit no private war
A.D. 1019, e. 3 (Pertz, "Mon. Legg." II), p. 38.
"Heiirici regis Constitutio generalis" a.d. 1234 {Pertz, "Legg." II,
"Si quis treugas datas violaverit
si cum ipso in cujus manum
p. 301)
treuge fuerant compromisse
violator man utn perdat.'"
C/. also " ^Mainzer Landfrieden" a.d. 1235, c. 3 (Pertz, "Legg." II, p. 314).
"Rudolfi I,
Const, pacis gener." a.d. 1281, n. 30 {Pertz, II, p. 428), "Hantfrid";
"Swer zwischen zwein veinden einen hantfriede machet." According to
the "Sachs. Landr." the breach of a pledged peace cost a man his head.
Under Charles the Great, such an offense was punished as perjury. Cf.
"Cap." A.D. 805 (in villa Theod. promulgatum) c. 5 {Pertz, I, p. 133):
"manum quam perjuravit perdat." Lning, "Vertragsbruch," I, p. 133,
correctly shows that the "handfriede" was not (as e.g. Wilda, "Das
Strafrecht der Germanen," pp. 229 et seq., and Geib, "Geschichte das
rmischen Criminal process" (1842), I, p. 171 infer) a superior variety of
the ordinary "Frieden", but rather that it signified nothing more than
that prior quarrels should be abated.
On the other hand, I am unable
to agree with Lning, pp. 488 et seq., that any act which even if it was
not unlawful "per se", yet as soon as it endangered a pledged peace or
otherwise appeared prejudicial to the same, was considered as a breach.
In
In my opinion the passages quoted by Lning do not bear him out.
any case, according to the early Germanic view-point, the raising of an illfounded complaint, if one be convicted of the same, constituted a wrong
in itself, and therefore if any one raised a complaint on account of an act
which had alreadj^ been settled by a "pledged peace", he always committed a Avrong. Concerning "Handfrieden" in Switzerland, cf. especially
Osenhruggen, "Studien", pp. 382 et seq., and Schlierlinger, "Die Friedenbiirgsehaft" (1877), especially pp. 11 et seq. ; Frauenstdt, "Blutrache, 39."
10
1'
^- Gaupp,
"Deutsche Stadtrechte des INIittelalters", II, p. 50. Cf.
also the "Reehtsbrief fr Medebach", a.d. 1165, 5.
He who killed another "infra fossam" forfeited his life.
He who killed "extra fossam"
any one who was under the protection of the lord merely made payment.
100
Chapter
IVj
35
within.
it is
Changes
in the
Theory
of Specific Crimes.
During this
Roman Law
the concep-
developments.
Treason, which originally was a crime only against the
nity or the
army
often difficult to
mark the
came
commu-
to be aj)j)lied
which we speak,
and
which the smaller
of
vail,
is
Winterthur",
12,
Gaupp,
1,
p. 137).
101
LIBRARY
UNIVERSITY cr
CAlinORm
RIVERSIDE
;i5]
[Part
I,
Title II
" traditio " or as having been committed " cum tradicione ",
if it were done under circumstances which indicated a conscience-
or which
The
earlier distinction
Murder no
longer obtained.
some
longer
It
is
a slaying, followed by a
is
special
{e.g.
some
The
of bodily injuries
infliction
underwent
in the local
distinction
laws
upon the nature of the instrument with which the wound was
inflicted, and upon the circumstances, whether or not the wound
was inflicted with premeditation.'' The drawing of a sword or
knife was punished both as an attempt and as a jeopardizing of
the public peace.
home).^
or
(apart
from niunerous
and measures.
Bigamy
now more
^ "Mort"
(murder), i.e. "Perfldia" ("Recht von Winterthur" cited
above).
* Ph. Allfeld, "Die Entwicklung des Begriffs von Mord bis zur Carolina", pp. 62 et seq.
Cf. Frensdorff, p. bei.
* In the North German sources
" Vorsate."
^ CJ.
also "Lex Sax.", XXVII.
The slaying of a "faidosus" (i.e.
outlaw) in his own house was punishable with death.
Cf. also "Lex
Rib.". LXIV.
' Concerning the police ordinances of Nrnberg,
cf. Siebenkees, "Materialien zur Nrnberger Geschichte", pp. 676 et seq.
Cf. "Brnner
Schffenbueh", N. 221. Mention is also made of "gemachte wandel."
We find in Italy verj^ comprehensive police ordinances, often enacted
with a ^iew to hinder traffic in necessities of life that were dangerous to
health, fraudulent, or spoiled.
Cf. e.g. "Statuta Taurini", "Monumenta
:
Patriae", "Legg.
'^
Cf.
e.g.
102
Chapter
IV]
mention
also
made
and
in
the South
German
36
sources
On
the
other hand, no change in the old conception of adultery (regarded
is
Although,
e.g.
as in
recognized principle.
and Premeditation.
Instigation to crime (which was not distinguished from moral assistance and thus was frequently called " counsel to crime ") ^ was
generally punished in the same manner as the physical commission
However, in many cases other methods of renof the offense.
dering assistance were not uniformly treated as equally important.
A general conception of attempt was not reached.^ Acts which
we to-day would punish as attempts, were punished as acts dangerous " per se " and even as acts which pave the way for the
commission of a wrong. In many sources ^ the distinction between
acts committed " culpa " (i.e. by negligence) and those committed
" dolo " (i.e. with malice) is correctly made.^
Only the latter
Instigation, Attempts, Negligence,
Frensdor^, in the "Hansischen Geschichtsblttern", I, pp. 17, 36; "Hamburger Recht von 1270", X, 6.
'" Schwabenspiegel ", 73 (Ed. Lassherg).
2 The Jurists raised the question whetlier such statutes were permissible.
CJ. Aiujclus Ari'titius. Ruhr. "De Bononia hoinicidiiim", n. 2.
' Sometimes the rabble, public portcTS, and pi'ojjlc of such type were even
excluded from the "Stadtfrieden." In sucli a case one could al>usesu('h persons with impunity, so long as the Council of tlu' City did not exercise its
discretion and interfere.
CJ. von Maurer, "Geschichte", III, p. Kil.
" CJ. John, pp. 21.') cl seq., 231 et seq.
*
CJ. as to the theories of attempt, John, pp. 141 el seq.
8 On
the other hand, in the " Schwabenspiegel ", 182-184 (Lassbcrg)
we find unfortunaite perversions of lh(< correct theory. Here homicide
done "culpa" {i.e. with ne^digence) is treated, through a misconception
of the Roman-Canon law and a perversion of the theory of the "Talio",
as a crime deserving the death peiuilty.
^
According to the "Sachsenspiegel"
CJ. e.g. "Sachssnspiegel", II, 3S.
103
37]
[Part
I,
Title
II
physical punishment.
We often find a special rule for
crimes committed with " vorsate " {i.e. ^ with special delibera-
entail
especially
Moralizing Tendencies. The
in
etc.
judgments by the " Schffen " (layjudges) moralizing on a false basis is by no means inconsiderable.
The " Schffen " of Brunn inflicted the death sentence sometimes
" ob malam voluntatem ", and they banished from the city those
who in despair over losses at dice had cut off their own thumbs.^
Such a tendency is especially evident in the treatment of suicide ^
which was regarded as punishable by the secular law.
Herein may doubtless be traced the influence of the Church,
and indeed the Mosaic law was regarded as divine law of complete
and existing efficacy.^^
A quite pecul 37. Effects of Changes in the Law of Proof.
iar effect was brought about by the change in the old Germanic
law of proof. Except in cases where the accused was apprehended
in the act or was under some existing legal disability, the ancient
law set him free if he took oath to his innocence. Although other
Ages the number
of the
elements enter into the origin of these rules,^ their practical effect
was, in the one case, to establish a presumption of innocence and
in the other,
i.e.
in the act
seq.
"Brnner Schffenbuch", N.
was
of Satan.
"Schwabenspiegel", 201.
The law of proof, in cases where the offender was caught in the act,
was originally nothing other than a justification of private vengeance
'"
against the offender who was in one's power.
Fehdegang und
Cf. Dahn,
Rechtsgang der Germanen" (1877), and especially R. Lning, "Der
Reinigungseid bei Ungerechtsklagen im deutschen Mittelalter" (1880),
e.g.
104
Chapter
IV]
37
2;
sing, e. 57.
Ru545.
Cf. "Stadtrechtsbueh",
the town lioadlos slow anyone who went
witliout a hfi^ht in tlie ni^ht and did not aUow himself to he (aUen. they
could free themselves by oath from the charge of manslauf:;liter. saying
they had done the deed "frid willen." But if they had a standing' p:rudge
against the slain man, then they were forthwith ohlifjed to sull'er for it.
Yet it might well be that one might slay for a justifiable reason another
('/. also id., c.
against whom one hapi)ened to have a standing grudge.
38.
If two wer(! taken ha\ing upon them stolen goods of a certain \alue,
both were hanged, -altliough one asserted Ids innocence.
* "Bamberger
Recht" (ed. Zp), ir,S.
^ "S(diwal)enspieger'
(Lassberg), c. 79.
^ Cf.
Oscnhrnggcn, "Das Alamannische Strafrecht", pp. 151 ci seq.;
von Bar, "Das Beweisurtheil des germanischen Processes" (Hannover,
1860), pp. 8(), 87.
^ In
Constance in 1443, any one would bo beheaded who coidd not
Oscnhriigiirn, p. 153.
positively prove that he had retreated three stops.
8 It was provided by a statute of Strassburg, of 1322,
175. that if
3"Brnner Sehffenbuch", N.
If
105
.'}7]
[Part
I,
Titij; ]J
To
make up
an increase in the
And this substantive law itself
severity of the substantive law.
acquired a certain discretionary or arbitrary character. As a
result of the instability of the legal system of the entire empire,
the law had to be periodically, not exactly created anew, but at
least again put in force and declared as effective for the smaller
groups and communities. It might almost be said that the existor
ence of the criminal law was merely a matter of contract
In the Middle Ages there are
rested upon the w^ill of the ruler.
even cases of voluntary submission to public punishment as a
penalty for mere breach of contract. At times no hesitanc>' was
shown in punishing with cruel penalties even the most insignificant
offenses when they were opposed to the interests of the landowner
That penalor might derogate from the respect due to the city.
ties were imposed by a village court for the girdling of trees is
well known and has been a subject of frequent comment. ^^
But
According to another custumal, a
it is not the only example.
cruel death (to be inflicted with a plow) was the punishment for
^^
a destroyer of boundary stones ^- while by a third custumal
the burning of the soles of the feet was prescribed for one who had
damaged trees in the forest. According to the " Schffenbuch " ^^
of Brunn any one who reviled the " Schffen ", because of a decision he believed to be unjust, was to be nailed to a stake by the
tongue until he cut himself loose. In the Freiburg " Stadtrechte ", ^^ the death penalty was prescribed both for polluting
ciencies of the procedural kiw, thus ensued
^'^
any one wounded or slew another, then the penalty of loss of head or
hand was inflicted upon all who had followed him bearing drawn swords,
pikes or halberds, just as upon him who actually inflicted the wound or
dealt the death blow.
Osenhrilggen, p. 169.
^ Even the carrying of a knife of forbidden length entailed the loss of
a hand. "Wiener Stadtr.", 1221, 39.
"Rudolph I Landfrieden of
1281", 55 (Pertz, "Legg.", II, p. 430). Unauthorized manufacture of
"Briinskeleton keys for another was punishable with the loss of a hand.
ner Schffenbuch", N. 548.
Cf. also "Prager Stadtrechtb.", X. 57.
10 The "Landfrieden" must also have been sworn to by individuals.
"Const. Henrici IV", a.d. 1103 {Pertz, "Legg." II, 61); "Rudolph I
Const, pacis", a.d. 1287, c. 39 (Pertz, "Legg." II. p. 451).
et seq.
i
md^
106
j^
p. 490.
N. 536.
Chapter
IV]
38
the springs of the city and for laying violent hands upon the night
means
(" Verfestung ") might ensue for lesser acts which also were
called " Friedbruch ", and where attainfler attached to an indi-
vidual, his
life
was
forfeited,
may have
Mil. 20
3.
107
38]
[Paut
The
I,
TiTLE
II
group, together with the fact that even within as well as outside
cities
there
was but
little
life
if
to the spot
of the stranger
mistreated or
is
wounded by a
citizen
who
outside of the
can obtain no
satis-
its courts.^
Thus criminal
the nose.^
off
the Mosaic
Law and
and
especially
pp. 43
6
'
*
this
cf.
Cap.
Ave-Lallemant,
a.d. 789, c.
"Das deutsche
78
(Pertz,
Gerichtsver-
"Legg. I",
p. 65),
(1858), I,
et seq.
4).
241
seq.
Landi-."
et
II, 28),
The order
1C8
"Augs-
Chapter
an eye,
It
is
IV]
etc.),
became predominant,
may
08
South Germany.
by no means appears so
especially in
harsh as
'
literal
interpretation of
i"
Cf. Saalschutz, "Das mosaische Recht", II (1853), pp. 437
Saalschtz, "Archologie der Hebrer", II (1856), pp. 271 et seq.
et seq.;
1^
As to the principle of "talio" in bodily
Cf. Osenbrggen, p. 153.
injuries, cf. e.g. "Stadtrechte" of Vienna in 1221 (Gaiipp, "Deutsche
Stadtrechte des Mittelalters", II, p. 241). Here the "talio" was applied
only in case the wrongdoer was unable to pay the amount of the composition.
In the "Stadtrecht fr die Wiener Neustadt", it is called "secundum legem institutam a Domino."
1^ Concerning the opinions prevailing until
well into the 170S and
their effects continuing to tlie pr(!S(>iit time, see below.
^* For
a long time in Nrnberg women were buried alive for simple
theft.
Siebenkees, "Materialen zur Nrnberger Geschichte", II, p. 539.
1^ If e.g. a Jew was being executed, a cap of glowing pitch was placed on
his head.
^^ "Alle mordere, unde die den plug rovet oder molen oder kerken
oder kerchof, unde vorredere unde mortl)ernere, oder dii- ire bodescap
wervet to irme vromen, die sal man alle radebreken. Die den man slat
oder vat oder rovet, oder bernet sunder mort brand, oder wif oder maget
nodeget, unde den vrede breket, unde die in overhure begrepen werdet
den sal man dat hovet af.slan. Die d\e hudet oder rof o<li>r einanne
mit helpe dar to strket, werdet sie des verwunnen man sal over sie richten
als over jene."
:
100
38]
[Part
I,
Title
II
The
organization.-*'
tions
upon the
many
jurisdiction of
of the courts,-^
Cf.
Vagatorum", with
110
Chapter
IV]
38
enacted and administered by the wealthier class had, as its consequence, a similar hostility on the part of the offenders and their
following.
Add to this that, through the dishonorable punish-
ment
first theft),
which
if
Among
these
"disgrace
we
find the
basket"),
the
the "Badekorbes" (literally "bathbasket"), the
"Wippe" ("strappado"), ducking into water, ridicule by children,
riding on a donkey, carrying a plow-wheel with dogs or saddles, etc.
Cf. Grimm, "Deutsche Rechtsalterthiimer", pp. 725, 726; \'on Maurer,
"Geschichte", IV, pp. 269 et seq., pp. 378, 379. Where the degrading
punishment consisted in the carrying of an object
a mild form of this
sort of punishment
an object was chosen in accordance with the calling and rank of the offender.
Thus, e.g. a bishop was obliged to carry
some paper with writing. The "Schnelle" or "Schuppe", a basket out
of whi('h the offender was obliged to jump into a puddle or into a horsetrougli, was much used in the case of bakers who did not bake bread of
the prcjper weight.
Cf. Osenbriiggen, "Studien", p. 364; Gierke, "Der
Humor in deutschen Rechte" (1871), pp. 48 et seq. Concerning the
"Scliuppcnstuhl", a punishment much in use, cf. especially Frensdorff,
in the "Hansische eschichtsblttorn" (1874), pp. 30 et seq.
2^ As to this,
cf. Walchner, "Geschichte der Stadt Radolphzell" (1825),
"Ab
p. 70; Ave-Lallemant, I, p. 87; "Briinner Schffenbuch", X. 540.
antiquo consuetum est, quod quicumque pro maleticio flagoUetur membris
mutiletur vel aliter secundum justitiam corpore vitiatur, illi civitas est
interdicta."
As to banishment in Flanders, cf. Warnknig, "Flandrische
In Flanders regular circuits
Rechtsgeschichte", III, 1, pp. 173 et seq.
were made to look for banislied persons.
2'
(f. e.g. City law of Hagenau, of 1164, 12-15 (Gaupp, "Deutsche
City law of Innsbruck, of 1239,
Stadtrechte des Mittelalters", I, p. 98)
The grounds for these extensive confiscations of
7 (Gaupp, II, p. 254).
property are not sufficiently ascertained. In the time of the Carolingians
we find them in connection with exile and capital punishment (W'ailz,
"Deutsche Verfassungsgeschichte", IV, p. 439), and generally for breach
of faith (Wailz, HI, p. 265) and also in graver crimes such as parricide
and incest. Partial confiscation was threatened as a sui)plemcntary
punishment e.g. in the "Constitutio llenrici III. Langobardica l)er den
Giftmord" (I'ertz, "Legg." 11, p. 42). (As to th(> gradual mitigation of
In my view,
this punishment, cf. Osenbriiggen, "Studien ", pp. 185 et seq.)
the confiscations of property in the Middle Ages were connected in ono
"Schnelle"
(infra),
111
39]
[Paut
I,
TlTi.K II
reduced to bejigary."
39. Incidental Circumstances
fluence.
There
having
were, moreover,
number
Demoralizing
In-
incidental
cir-
of
known
offender
for himself
to negotiate a settlement in
money.
It
aspect with the unfree status since originally they were to the advantage
of the lord of the city, and according to the French feudal law the commission of certain crimes by the feudal tenant caused him to forfeit his
movables to his lord cf. Du Boys, II, p. 221 et seq. In another aspect,
they were connected with the fact that a breach of the peace entailed
outiawTy, i.e. the loss of all the offender possessed within the community,
as confiscation very frequently occurs during the 900 s, 1000 s, and 1100 s.
1
Cf. e.g. "Reehtsbr. von Passau" of 1225, 24; "Eisenacher Statut"
of 1283; "Rechtbueh" of Duke Albrecht for Klagenfurt of 1338, 8
As to Bremen also, it is
{Getigler, "Deutsche Stadtrechte", p. 291).
stated by Donandt, "Versuch einer Geschichte des Bremer Stadtrechts",
but it was possible for
II, p. 289, that a captured slayer was beheaded
one to free himself from outlawry by the payment of money. The "Constitutio Friderici I de incendiariis " of 1187 fixed the punishment of
On the other
decapitation only for the incendiary who was captured.
hand, he who gave himself up of his own free will, or relieved himself of
the attainder, was to undergo only the penance (going on a pilgi-image)
infiicted by the Church, pay compensation, and suffer banishment for a
year and a daj'.
2 Every courtyard of a lord, and later every place of residence of one of
his officers, was a "free place", whence one could negotiate for a monej""
settlement of a ease ("Freihfe"). Customarily the fugitive had si.x
weeks and three days for this purpose even at its expiry he was not required to be delivered up, but he could be brought to a place {e.g. in a
There were penalties
forest) from which further fiight was easily possible.
of considerable severity for the violation of this right of asylum, which
originally belonged to the courtyard of anyone who was entirely free.
;
112
Chaptkr
IV]
39
a settlement. On the other hand, every crime, for which conditional outlawry (i.e. " Verfestung ") was pronounced against the
fugitive offender, entailed the death penalty in case the offender
was captured.^
in
Von Maurer, "Geschichte", IV, pp. 246 el seq., and also Frauenstdt,
"Blutrache und Todtschlagshne im deutsehen Mittelalter" (1881).
Frequently this right of the '"free i)laees" was based upon
pp. Q et seq.
a privilege granted by the emperor or prince.
Later, privileges of this
character, because of the e\il conditions to which they gave rise, were
In this connection belong the provisions
only granted under limitations.
Cf.
492;
II
113
39]
[Pakt
I,
Title
We find in the cities and also in the royal courts certain lists of those who
had incurred "Verfestung" and "Aclit" ("Liber proscriptorum"). Cf.
Pertz, "Legg.", II, p. 483.
37.
places intentional manslaughter not involving
high treason was not punished with capital punishment until the Carolina
came into effect. According to the "Braunschweigische Echteding" of
{Hnselmann, " Urkundenbuch der Stadt Braunschweig",
1532, n.
p. 342) it entailed banishment from the city for fifty j-ears, a money fine
of thirty guilder paj^able to the council, and settlement uith the blood
Concerning the securing of immunity by
relatives of the party slain.
the payment of money even in cases of murder, in Flanders, cf. Warnknig, "Flandrische Rechtsgesehiehte", III, 1, p. 160.
^
Cf. "Klagspiegel", Title "de poenis" (fol. 31b of the Strassburg
edition, 1533).
"Item Du solt mercken, das vmb ein yegldich, darumb
dann ber das blutgericht mcht werden, getaidingt vnd bereinkommen
mag werden on pen." Until 1527 the nobility in the lark of Brandenburg claimed the unlimited right to make a settlement with "Wergeld"
and "Gewette" for even maUeious manslaughter. Cf. Hlschner, "Geschichte", p. 117, and for remarkable illustrations in the 1600 s in Hannover (Vogtei Celle), cf. Bloio und Hagemann, "Practisehe Errterungen"
II, p. 260.
^ Concerning peaces proclaimed by the authorities, which not only the
famiUes but also their "famuli" and "servi" were bound to observe, cf.
e.g. "Brnner Schffenbuch", n. 530, 534 and also "Wormser ReformaIt
tion", VI, 2. tit. 23.
{Cf. also Osenhrggen, "Studien", p. 483.)
frequently happened that a pledged peace was declared void by the
interested parties.
This liberty in turn came to be restricted by the
"Alberti
*
Moreover, in
many
XXIX
statutes.
114
Chapter IV]
39
When
subject to
However,
fine.^
Fredum
")
who
re-
and often
difficult to obtain,
as appurtenant to a
fief),
revenue. ^^
The
ing out of the old conception, viz. that since the king has the
wrong done
is,
as
it
Frauenstdi, p. 169.
^ The "pax" or "remissio" required in Italy also the "approbatio"
of the court.
{Cf. the very clear description in Clarus, fin. qu. 58.)
Even in the middle of the 1500s the "pax" played an important part.
'0 "Sachs. Landr.", I,
53, 1, II, 8; " Stadtr. von Ens von 1212". 21
(Gaiipp, II, p. 222) "Wiener Stadtr. von 1221 ", 31 " Brnner Sehffenbuch ", n. 52 " Klagspiegel ", Tit. " de poenis ", Fol. 131b.
;
"
Cf.
"Das
alte
CIV
to the
and Zp
"Bamberger Recht"
(cited
115
39]
[Part
I,
Title
TI
^^
there
is
payment
of a
sum sometimes
fixed,
^'*
The
offender
was often
allowed peace for a certain time until he could collect this sum.
It
offense, this
" grace " could be interposed only with the consent of the party
injured,^^ or where he did not insist upon the extreme letter of the
law.
by
his relatives.
All this
order.
quently the intercessions of the Clergy or the prayers of the rela^^ of the offender which caused the judge, instead
money
or limb), to
life
fine, or to
apparent that although no legal distinction was herein made between the poor and humble and the rich and prominent yet there
was a great practical distinction. The former did not have those
12
116
Chapter
IV]
39
permitted to
him
for a
live, if
some woman
husband.
tion where a
s),
was
the condemned
wife.^''
as a
was delivered
to
law of proof
cially the
cojtrt jn-occdurc
in the later
Most
important of
Middle Ages.
this
must be
find
hearing
description of
Roman
We
rules
oath of purgation, proof by compurgators and wit" ex parte " proof, and confrontative proof (wherein a
of proof,
nesses,
left to
all,
is
1^
117
39]
The
is
still
[Part
I,
Title
II
^^
speaks of " the foolish old hen judges in the villages ", better
"
qualified to sit in judgment on the cases of " knavish chickens
In the year
criminal law.
1496,"'^
all
its
reference to
parts of
Germany
22
2'
and regulation
118
Chapter
Scandinavia
Fines
Customary Law.
Feuds
and
Kin Vengeance Private
Early
39a.
Public
39a.
geance.
Forfeitures
39c.
1300-1500.
System
of
and
Private
Mark
thority
AcProcedure
Elements of
Money
396.
cessories
Primitive
There
is
Primitive Feuds and Kin Venperhaps no other branch of law in the history
and
is
it
takes
39
a, b, c,
auxiliary sources,
named
119
39rt]
to
tlu'
forms
subject,
the
Title
I,
new order
II
of things
leading
tions of
[Pakt
Wilda's
on this
HaUe, 1842.
120
Ibid., 1820.
SCANDINAVIA
Chapter V]
tion
39a
and the mode (whether the crime was committed in the heat
and also the conduct of the wrongdoer
of passion or dehberatelyj,
On
subsequently.
Sweden
must at first
and thereafter in distant and unfrequented localities, in order
to escape the " Haevn ", or exaction of the toll of blood for blood.
tives,
aries,
him by
his presence.
Private Fines.
nation was
by the
left to
and
in
some
amount was
As
fixed
a rule, however,
by the
men
of the violence-gift),
relatives or chieftains.
who were
chosen
made
*
5
Transl.]
Transl.]
Transl.]
121
39al
[Pakt
I,
Title
II
another oath (" Trygdeed "), securing for the guilty party and
This oath, for which
his kin full peace and safety for the future.
was given by
the
Gragas,
in
prescribed
is
formula
solemn
very
a
the law-text of Skaane,^ only in cases of murder, while the oath of
equality was also given in cases of reparation for wounds and blows.
The community's public authority interfered only where the
crimes were directed not against individuals but against all the
by reason of the perfidy or treachery of their comdeemed extremely vile and heinous. Otherwise,
the community's only concern was that the cause was conducted
It may be assumed, howin accordance with custom and usage.
" Thing," in some instances, when
ever, that the members of the
the proceedings were held there, brought some influence to bear
on the accord and reconciliation.
At an early period, notably
Limitation of Private Vengeance.
after the introduction of Christianity and under the influence of
people, or where,
the priesthood, bounds were placed on the practice of exacting perpartly as to its extent (permitting it only for delibsonal revenge,
erate and grave crimes) and partly as to the time, place, and manner.
Thus,
it
et
eandem
manum
in signum indissolubilis
alterius alicuius roborare, et
122
Chapter V]
SCANDINAVIA
39a
was gradually extended, so that every man was immune and enjoyed in his home and premises the rights of a sanctuary
(" Huusfred "), or in his ship (" bunka? brut "), or at the customary public meeting-places (including the Eyre and the journey
and back),
thither
viz.
fro), as well as
ecclesiastica ").
monarch
peace.
When
amount
of the penalty,
or
when
his guilt
123
:i*)a]
In
Church Mulcts.
[Part
I,
TiTLE
II
code, which in the course of time more and more extended its sway.
Canute the Holy (so Saxo relates) bestowed upon the bishops and
The ordinances
Church the mulct should be three marks and if the offender did not possess that amount, it behooved the parish, in
Skaane, to pay the priest for him, while in Sjselland he was subOther misdeeds calling for Church mulcts
jected to a severe fast.
of the
were church robbery, incest, adultery, manslaughter, maltreatof church officials and their near relatives and homicide
In most cases, money penalties were exacted. Heingenerally.
ous crimes were punished with excommunication and anathemas
these being of two degrees, one excluding the offender from all
intercourse without the church as well as within, and the other only
from the actual church and its ministrations. This ecclesiastical
jurisdiction was generally exercised by the bishop on his regular
circuit through his district; the matter being brought to his atFor secret crimes,
tention upon complaint or by general rumor.
the Church law provided that where the criminal, before being
ment
"
124
Transl.]
Chapter V]
39/^.
SCAXDIXAVIA
The Provincial
Growth
Codes.'
396
of Public Authority.
tion.
in the
it
man."
Though
self-defense thus
tion
it was sometimes a matter of doubt whether an act done in
an affray was one of defense or of revenge. Indeed, some expressions in these laws seem to assume that the injured party had the
;
s in
The
See Chap.
125
basic
i)rincii)lr
V'll,
30;^]
[Part
I,
TiTLE
II
directions
reparation for the injured party, but also to punish the wrong-
and an atonement
System
of
Public and
Private Fines.
Codes, an offense
may
and reparation
is
inflicted
which
is
the
first
Under
the provincial
ordinarily be
discharged
including
all
is
money payments.
mode of accusation
of the act
and
other circumstances.
it is nevertheless apparent that the relation between the act and its effects, as well as the nature of the omission
or carelessness, were taken into consideration.
Hence the distinction between the " act of hand " and the
" handless risk" (" Handagserning " and ''handls wathse ").
The latter included primarily such injuries as were not caused by
any one's personal activity, but by cattle or inanimate things which
were chargeable to some one's safe custody (in which cases a small
penalty was payable)
it also included other harms attributable to
some prior personal act having a consequence not anticipated.
intentional acts,
126
Chapter V]
SCANDINAVIA
396
down a tree and its fall causes the loss of a life, the other
must pay three marks to the nearest relative of the de-
ceased
this provision,
are cutting
Law
of Sja^land,^) to cases
left
Where
the spot.
any one, the latter pays the total fine. For death or
wounds caused by a weapon not owned })y the user, the owner is
fined three marks if he loaned it for that purpose, or a smaller
amount if it was taken without his knowledge or against his will.
A fine is likewise imposed upon one who so negligently places his
weapon that it falls and wounds or kills another the Jydske Law
extending this rule to chance injuries from a weapon held in the
owner's hand. For death or personal injuries suffered from the
overturning of a wagon or the stroke of a rider on the road, the
driver or rider is compelled to pay either the full " B0de " for a
deliberate act, or a less amount according to the degree of his carehands
of
if
Procedure.
In
all
B0de
", it
was
left
was
waive his rights and pardon the wrong. Where public penalties of
punishment were ordained, in addition to private damages, the inbut his
jured party was primarily entitled to institute the charge
right to settle or abandon the case was limited in various ways,
;
The
down
in the
Northern
law
of
Law
rule
is
accordingly laid
of Sjjelland,
made
for a
and other
wrongful
wilfid
[About
A.D. 1250.
127
Transl.)
:i!t6]
by
[Part
by a private person,
is
I,
Titlk
recognized,
evidencing
in general,
and
tliat of
it
commence
was reason
And
ceptional, yet
could
If
would be
lost
inabilit\'
it
private party
In the
region of the Jydske law, a pact between the inhabitants and their
bishop, made with royal sanction, in 122S, indicates that a rule here
prevailed, similar to that of Sjselland, that official prosecution could
be made for wounds only when the victim had made a complaint,
or where the misdeed was open and notorious
for the bishop in
this agreement surrendered the power theretofore exercised by him
;
128
SCANDINAVIA
Chapter V]
of instituting,
by
his delegate,
396
rules;
was
ception.
by the
latter, to
injured party
if
marks to the king on the party wounded for failing to proceed with his cause, and further authorizing the " Fogede " (the
three
royal bailiff) to vindicate the right of the crown where the injured
party
fails
to enter complaint.
party robbed
who
failed to pur-
sue his action before the twelve true men, after having instituted
it,
to a fine of three
marks to
beyond the degree expiable by fine (" Ub0devery doubtful whether the Code, in its
provisions for the infliction of punishments, does not assume either
that a previous private complaint was made or that the offender
w^as apprehended in the act and brought to the " Thing."
This Code, which is more harsh than Erik's Code of Sjtelland in
its punitive measures, would seem thus not to authorize public and
official accusations to the same extent as the Code of Sjjelland.
Accessories.
Where several persons had together committed
an ofl'ense, they could clear themselves with a single fine by holding together in declaring that they had been "equally good ", where
it was only an issue whether the act was an accident (" urn the wilia'
ings even for felonies
maal
")
and
it
is
samsen wsere, tha b0t8e ikky msere sen ense b0t8er "). Otherwise,
the general rule was enforced that every participant in the act,
For grave
including mere accessories, should pay the full fine.
crimes punishment was meted out even to a companion of the
wrongdoer, who harl taken no part ii: the commission of tiie olVense
(" in comitatu " "
a fine of three marks
fierth oc i fylgi "),
This
to the private complainant and a like amount to the king.
;
129
39?;]
[Part
I,
Title
under
the
tlie
Code
of that province
and a
was api)hed,
mere fines and
provision was un-
simihir ruh'
in all "
doubtedly
when
An example
by
his direction,
and
in the case of
exempts from
one
where
the command is not carried out. This is not inconsistent with the
Skane rule, holding that he who by force is prevented from striking another is as guilty as if he had carried out his intent nor with
that of the Jydske Code, which hkewise condemns an assailant
whose blow misses and reaches only his victim's garb or horse.
The mere attempt w'as, at this stage of the law, not punished,
unless it had got as far as an actual attack, as in the last-mentioned
cases.
This doctrine on the whole represents the general tenor
of the various provisions on this point in medieval Germanic and
Northern law.
commanding
of Sjselland
fine
Elements
of the
Money
Forfeitures.
made between
as restitution
and damages
and the
is
He
also clearly
130
Chapter V]
SCANDINAVIA
396
six
marks, and
by cumulative
sum
fines
several
for
of five siher
marks or
injuries
fifteen
131
396]
Forty-Mark
these
jKirels-
and
Three-Mark
Causes.
[Part
I,
Title
Distinguished
all
II
from
the provincial
were more
fines, of forty
in
and
the nature
Code
of three
of
of Sjtelland,
church and eyre or " Thing " by wounds or blows, and murder
on the road to the assizes the Jydske Code, however, declaring
;
losses,
132
Chapter V]
SCANDINAVIA
306
(3)
wounds
in-
jured party here varying from six marks (when the weapon entered
it completely), to three marks (for
Under Canute VI's Ordinance for Skne and the
Skane Code, one guilty of inflicting wounds incurred always a royal
penalty of three marks; whereas in Sjaelland the public fine was
imposed only where the wounds were so serious as to necessitate the
The Jydske Code, while silent on this subwounds inflicted by chance no fines are payaFor the slaying of cattle, there was a double
that for
(4)
marks, one for the king and the other for the owner.
(5) In Sja-lland and Jylland, for theft of articles worth less than half
a mark, where the thief was caught in the act or with the stolen
fine of three
goods in his possession, three marks went to the king. (()) In all
provincial Codes there were several provisions for this double fine
where a person lefor " impeding right" (contempt of court),
gally summoned absented himself without sufficient cause from the
" Thing", or in other mode displayed arrogance or refused to fulfll
a duty imposed by law where a person removed timber which he
396]
])ay tlic
double three-mark
buyer
alone
when the
" old
fine, l)ut in
[Pakt
I,
Title
II
this fine
men
"
oath.
Tn contrast to the finable misdeeds stand those heinous crimes,
system.
Outlawry.
The
^
term "peace",
the
who by
fender
entitled
him
The
of-
his act
had
to
" utlagar ").
The
was regarded as permissible for the injured party, the offender's " peacelessness ", at least in relation to the injured party,
redress
came
decree of the
134
Chapter V]
SCANDINAVIA
396
night, in
and
had received
satisfaction
and
it
would
punishment than
fines.
The
following
is
list
acquitted
(2)
of Jylland),
or vice versa,
here
135
(.3)
nnirder dur-
39b]
[Part
I,
Title
II
the presence of the king in the same province, in the Onlinancc of Valdemar II and of Sknc, tlio Jylland law limitinf? the
territory to the same " Ilerrefl ", and the ('ode of SjteHand being
silent on the subject
(6) for kidnapping the betrothed, wife,
iiifj
mother,
sister,
is
a contradiction
in Suneson; in one i)lace he classes this crime as subject to (jutlawry, and in another place states that rape is a forty-mark of-
Sles\'ig
failure to
pay
his fines
Erik's
Code
for the
same province
also
136
Chapter V]
SCANDINAVIA
39&
\Yhere the three-mark penalty (imposed in various civil and misdemeanor cases for contempt and disobedience of the legal authorities) was not paid, outlawry was also applicable
but gradually
for this default there came into vogue a minor degree of outlawry.
This is found in the Code of Skne for theft only, where the defendant has first been outlawed at the " Thing of the Herred "
(" Mad})and ")
he was excluded from all intercourse with the
inhabitants of the " Hundred", and later was declared " without
peace " at the " Thing of the Land " by reason of defaulting
;
assembly. This case is likewise dealt with in \'aldemar's Code of Sjselland, the expression here used being " loss
of personal security " (" ^Manhselg ")
the same sentence also
])efore that
some mode
there
is
is
who
fails
no mention, however, of
guilty of assault, who, when persisting in contempt, are finally declared outlaws by the " Land-thing."
So the Jydske Code imposes
amends
are not
made
for
wounds
or claims
wages not satisfied. This judgment was thus evidently not intended as a punishment for the crime, but for the failure to submit
to authority and as a pressure to enforce payment of the fines
which would absolve the fugitive from the judgment. The outlawry had effect only within the jurisdiction of the " Thing ",
whether " Herred " or " Land ", l)ut the extent of the loss of security differed, in that under Valdemar's Code of Sjtelland a general
loss of legal protection seems to have resulted, whereas Erik's Code
for that province and the Jydske Code limited the right of injuring
him to the accuser only, who could strike and wound him, yet not
for
deprive him of
crime
itself
ensued.
was
so heinous as not to
The outlawed
punisliment on him.
137
:]f)li]
This offense
crimes,
and the
to
tliis
[Part
for
serfdom
II
Some
ments
Titlk
Codes was
was deemed
I,
and maiming.
of the punish-
judges must have regard to the value of the stolen goods, and to
The boundary
between grand and petty larceny in all the Danish provinces was
capital punishment was inflicted only where
three penny-marks
the value of the goods stolen was not less than this amount and
where in addition the thief had been caught in the act and brought
By the Code of Skane, a thief might be
to the " Thing."
hung but the penalty for petty larceny varied from the whipping
For church theft, or
post to loss of limb or serfdom to the king.
robbery combined with murder, he was broken on the wheel, or
(according to Suneson) stoned or burned to death. To these provisions Valdemar's Code of Sjfelland adds that the " men of the
Thing " shall decide upon the nature of the punishment for grand
larceny, with the approval of the complainant.
The Jydske Code
names capital punishment as the regular penalty for grand larceny
where the thief has been caught in the act, or been found with the
stolen goods in his possession, or confessed the crime.
It also con;
ceded, and
thief
still
retained in the
when caught
in the act
town Code
this being
now a
prohibited form of
power to hang
him without hearing and judgment. For petty larceny, the thief
was branded with the thief-mark, and for a second offense he was
self-vengeance, but the king's bailiff having the
By the Code of
period allowed for his escape, was to be hung. According to Suneson, the death penalty applied where arson was committed for
the purpose of theft
while, by Erik's Code of Sjaelland and by
;
that of Jylland, this was done only where arson was combined with
murder and the miscreant caught in the act here the mode prescribed by the Sjselland Code was specifically burning at the stake
or breaking on the wheel or casting down from a clift'.
Where
;
138
Chapter V]
SCANDINAVIA
39c
king.
count of
13001 500.
The foregoing
the provincial Codes shows that the penal law was
Penal
39c.
Legislation A.D.
acstill
fine,
when
especially
public
notorious,
was
prosecution
the
regular mode.
made more
severe,
Thus the
were
mayhem done
in
a village where
tlie
king
is
present
escape,
and the
shall
l)e
inflicted
making
his
other than
such as are described in the law nor unless the accused is legally
proved guilty. These regulations were almost literally repeated
in the later Charters (" Haandfa'stninger ").
139
39c]
Was
[Pa FIT
T,
countenanced
still
TrTr,E II
The
are not in
also for
mayhem
inflicted at
Jydske Code provides death for such crimes, where the ofi'ender
and it adds an express provision for public
is caught in the act
prosecution in such cases, this being prescribed by the Articles of
Thord Degn only where a fine was due to the king. These ordinances also reproduced the provision of the provincial Codes that
one sentenced to pay fines for a grave offense w^ho failed wdthin the
time allowed to render satisfaction or produce a bondsman should
;
be outlawed.
Market-Town Laws.
to as early as
The
is
referred
and
murder or injury to limb involved a penalty
of forty marks,
the amount in some cases going to the village
exclusively, in addition to that due the king, and in other cases
being divided between the local and the general government. In
the boundaries of the village was subject to an additional
special fine
so that
the "INIarket
Towns "
("
Kj0bstaederne
Town Code
came
first,
of
Queen
is
INIargaret (1294), in
of the town.
public indictments
it is
"),
first,
said that public prosecutions are not proper for acts of chance
140
Chapter V]
SCANDINAVIA
39c
officer shall
filing charges.
outlawry there
it
inflicted
date)
The
is
garet
earlier
but there
is
town Law
of
Town Code
of
town Codes
Queen Mar-
The
to be atoned
with
in
141
39c/]
Switzerland
B.
[Part
I,
TiTLE
II
The
Pledged and
now
is
it
nor was
all
",
even a general model. Each canton had some special enThe Bern " Gerichtssatzung " (Judiciary
its own.
actments of
Act) of 1593
is
In substance,
own house."
The more modern notion
outside of his
and order
and general
law^
medieval idea.
alien to the
"
quarrel arises,
'
any
citizen
Pfenninger
142
Chapter V]
SWITZERLAND
The
parties
39d
Thenceforth they are under a special rean insult, or even a contemptuous word
be a breach of this peace. To evade this more serious respon-
sponsibility
will
and a
curse,
and
flight, for
The importance
is
Another aspect
the
citizen's
duty
of the peace-law
to interfere to
is
seen in
its
reliance
No
upon
public police
existed.
duty to help
is
in strong contrast
manslaughter and
honor-losing;
Breach
is
of faith
Murder and
robbery
are
stealing are
honor-keeping.
honor-keeping.
lionor-kee])ing
And
The
finally, as
blood-feud
is still
The
his family
man
3U(/J
is
seen in
tliis
long
Its spirit
surv^iv^al.
[Pakt
appears
in
I,
Titi.k
II
the formula of
the Bern Judiciary Act (159:5) for delivering the body of the fleeing
homicide to his victim's family " If after summons in open meeting
:
he does not appear, let him be known as gone out of peace to nopeace, out of safety to un-safety, and let the killer's body be delivered to the friends of the lifeless one to
Crimes.
statutes.
was the
do as they think
discretion controlled
whom
is
more or
fit."
given in the
less.
Murder
one with
for manslaughter, the penalty
punished by death on the wheel
still classified in detail,
beheading.
Bodily
injuries
were
was
wounding, bloodletting, mayhem, blows with and without weapons,
How far was self-defense and self-redress
hand-laying, and so on.
killing of
("
Xothwehr
",
necessity)
recognized?
is
could be used even for stealing and other property wrongs, and
it
death done upon the wrongdoer. But gradually it be"lawful necessity" ("rechte Nothwehr "), a
phrase of the " Schwabenspiegel ", represents this restricted principle.
In Swiss law its gradual limitations did not so much go
to the kinds of wrongs for which it was available, as to the
kinds of harm permissible
to inflict death was allowable
only in the extremest cases. Here the judge's discretion played
justified
came
restricted;
a large part.
Penalties.
Fines
in
by
still
Then
whole
144
Chapter V]
SWITZERLAND
hot-iron-searing,
*'
lex talionis "
and scalping
(in
three cantcjns).
39d
The notion
is
of
con-
The
or less rare
commutation
of a cruel
more
145
Chapter VI
39e.
General
dieval
39e.
39/.
39^.
Specific Crimes,
Punishments.
Law in
France.
The Custumals
call
of the
inquiry the very simple, but often altogether false, ideas which
trying
by
this
means
to assure a
efficacious re-
of his time,
un-
la
146
Chapter VI]
39e
claims even that the judge ought to incur the death penalty
if the
accused when subjected to torture dies from the effect of the suffer-
exist for
them.
and
insult,
Xot
punishments
we
of conscience
practices
though
common
Carolingians.
The
Roman
law.
' See on
these various points: Sarigny, "Histoire du droit au moycn
it ni/s,
age", trans. Guenoux, Vol. IV, esfXH-ially pp. 184, 201, 20;{, 227
"Histoire du droit criminel de la France, depuis le XVIe jusqu'au XlXe
siecle", Vol. V, p. 271, et seq.; Bethniann-Holhveg gives a list of the
jurisconsults of the epoch who treated the question of criniinal procedure
and incidentally touc^hed upon certain questions of penal law. Tiie most
famous in the 1100s and 1200s are Bulgarus, i'lacentiiuis, .Uhi'rtus
Galeotus, Hubertus do Boiuicurso, Hubertus dv Bobio. Holandinus do
Romaneiis, Giovanni Andrea, AlluTtus de (iaiulino. and .lacobiis do
Belvisio.
Most notable is the name of (iuillaume Durant (or, Durandus),
born in 1237, the author of "Speculum juris". See Bclhmanit-HoUucg,
"Der Civilproeess des gemeinen Rechts," Vol. VI, 129, et seq., p. 197,
where considerable information conci-riiing these jurisconsults and their
work will be found. On this same subject see also Savigny, "Histoire du
;
droit
3i)t]
((Ttiiin cities.
the
alty
who labored
jurists),
l)y
It
in
this task
by the
was
I,
TiTLK
IT
royalty to re-
known.
t;ain
ri<i:ht
[I*AKT
leftists
Roy-
(or secular
criminal
law into
it
had
But
if
it is
jurisconsults give
it
of the
which
tinction
Logically, there
lies in
is
i.e.
dis-
some are
for example,
lay
are
and counterfeiting,
all, in general, punishMedium crimes and petty misdemeanors are
able
by death.
is
148
Chapter VI]
39e
or
all
kinds,
damage
its
culprit
is
to property
These offenses
hut if the judge finds this inhe has the right to add a prison penalty, and when the
unable to pay the fine he is arrested for the debt."
;
The
"
of charges,
penalty.^"
in
in
And
This
67, Gniclii/, p. (U.
of the chief crimes as follows "There
are different kinds of criminal comi)laints accordiiit: to the difTerent
There are c()nii)Iain(s for murder,
consequenc(>s of the various crimes.
homicide, wounding, broken truces, rape, theft, robbing of a plough,
II,
et seq.
149
30t']
same
[Pakt
I,
Title
II
this
basis
criminal.
Beaumanoir declares
is
all
must be
ofi'enses.^-
He
does not even incline toward lenity, and his habits as a magistrate
accustomed to repress crimes lead him to say that in case of doubt
an example to others. ^^
Bartolus has no different doctrine.
There are ", he says, " two
legal ways of avenging crimes
the accusation by a private party
and the procedure initiated by the judge. The judge initiates his
procedure, 1st, when he is called upon to make an investigation
as a result of an accusation
2d, when he begins an investigation
in order to give
"
own
of his
accord."
^^
right to punish
making
it
impossible for
him
We
see
Bouteiller
the end of the Middle Ages, and even during the first part of the following epoch.
See, for example, Giiyot, "Un nouvel exemple d'urfehde",
Nancy, 1892, and the critical study of this memoir which I published
in the "Bulletin du Comite des travaux liistoriques et scientifiques.
Section des sciences eeonomiques et sociales", 1892.
'2 Beaumanoir, chap.
30, no. 1, Vol. I, p. 410, where the word vengeance
is met at eyer3^ instant.
It is also stated that the lord takes vengeance
on the criminal, but in so doing he appears as the representative of society
and not as a private individual.
" Beaumanoir, chap. 30, no. 61, Vol. I, p. 429. "It is an excellent
thing to anticipate criminals, and to punish them so severely, according
to their crimes, that through fear of justice others mil take warning and
abstain from offending."
'* "Jus,
ex quo sumitur vindicta, est duplex, scilicet accusatio et
officium judicis.
Officium exereitur, quando per inquisitionem ad alterius
p.
150
FRANCE
Chapter VI]
IN
39e
does not attempt, any more than others, to speeify the cause of
punishment, but he advises the judges to be indulgent and to take
into account a host of circumstances in its apphcation
the
character of the victim, the condition of the criminal, the time and
;
the place where the crime was committed, and the previous habits
of the culprit.^^
toward induland the necessity of intimidating through the dread of corporal punishments, are the two bases
of the right to punish in the ^Middle Ages.
With such principles
they could have devised punishments more or less fixed, more or
less uniform for all, and of a severity commensurate with the
gravity of the crime yet nothing of the kind was done.
Under the influence of old Germanic regional Customs certain
gence.
of a jurist inclined
they
were repressed only by means of simple fines. Beaumanoir allowed himself to add imprisonment whenever the fine seemed to
him clearly insufficient. On the other hand, under the influence
of Roman law, and even of old Germanic regional Customs, extremely severe punislmients were inflicted at times. This severity
astonishes us to-day, especially w^hen we consider the cases where
the Church succeeded in making people consider simple sins of
conscience as real crimes.
"Somme
Bouteiller,
rural",
book
I,
form;
man
151
30e]
[Paht
I,
Titlk
II
the count even remits liim the amoiint.^^ At times the most severe
j)unishments were inflicted without the formahty of a trial. On
trial, hanged at the
probably by virtue of the then
asserted right over life and death attributed to the king as the symTo be sure, such irregularities were not common,
bol of justice.
of a legal procedure was recognized but the pronecessity
and the
cedure tended to become more and more secret, and thus to deprive
the accused of guarantees of fair treatment.
Side by side with these serious defects
^a continual cause of intwo essential and very just principles had,
justice and inequality
however, been proclaimed at a very early date, namely every crime
implies volition and freedom on the part of the one who has com-
June
'50,
gallows for
common
thieves,'**
Xor are parents responsible for the death of one of their children
through mere chance.-^ One is not answerable for a death or
wounds of which he has been the involuntary cause, if he had used
care to prevent such a misfortune.-- In this respect, as can be
seen, the law had far advanced from the Germanic primitive law
which did not distinguish clearly the crime of murder from the involuntary act which caused death or wounds.-^ From this point
of view considerable change and progress had been achieved.
Since crime implied evil intent, the man who kills or wounds in
self-defense is not guilty.-^
This principle of the right to seliChapperon, "Chambery la fin du XlVe siecle", pp. 182 and 183.
See Langlois, "Le regne de Phillippe III le Hardi", p. 30.
1^ Beaumanoir, chap. 69, no. 2, Vol. II, p. 489.
2" Beaumanoir, chap. 69, no. 17, Vol. II, p. 492.
The following number
gives other examples of homicides committed by mere chance and which
1^
1*
no punishment.
Beaumanoir, chap. 69, no. 5, Vol. II, p. 485.
22
Beaumanoir, chap. 63, nos. 3 et seq.. Vol. II, p. 419.
23
See, for instance, law of the Visigoths, X, 8
law of the Saxons, tit.
XII.
Najii, "Studii di diritto Longobardo", p. 38; Viollet, '"Etablissements de Saint Louis", Vol. I, p. 232. Bouteiller tells us that homicide
is considered lawful in war or in a judicial duel
also if one kills a man
who, having been outlawed the pale of the law, breaks the ban. This
last case is a relic of the primitive system which it would have been better
entail
21
to suppress.
2^
et seq..
152
Vol.
I,
p. 432.
Chapter VI]
39e
is
ishment .-"'
Beaumanoir
is
commandemens
to the attack.-^
if
the defense
is
who
are
proportional
is
incurred even
when
the homicide
is
the result
pardon but he
clearly prefers the Roman doctrine which exempts from all punishment.-^ Suicide is no crime if it is the act of an insane person,
or if it is induced by poverty.^"
But from the moment that criminal intent is found, there is a
crime, regardless of sex or age.
Women are punished like men,
with only rare exceptions. They incur the death penalty, except
that it is inflicted in a special manner
they are burned or buried
However,
Bouteiller advises that.
alive instead of being hanged.
of a simple imprudence, unless the prince grants a
"
p. 73.
et
du Maine",
p. 310.
tit.
40,
edition of
1('21,
p.
1493.
153
I'.
>
39e]
[Part
I,
Title
II
while in prison, they be treated more gently than men, and he adds
that in civil cases they incur only a half fine.''^ Minors are punished like adults as soon as they have reached the age of discern-
to
ofiended.'''^
known
An
to need here
actual
mock
trial
But the
crime.^^
if
these
were conducted for the purpose of intimidation, they completely missed the aim in view
for in his day they had ended by
causing ridicule rather than the desired effect. Long before then,
Beaumanoir had expressed disapproval of these trials of animals
he found it absurd to condemn an animal devoid of intelligence
at the same time, he hinted that the feudal lords had some interest
trials
"Somme
book
31
Bouteiller,
3^
rural",
1621, p. 1495.
^Nlaine", F, no. 253, Vol. II,
et
du
p. 115.
3'
oommandemens",
des
book
^*
Vol.
12, Vol.
II,
no.
I,
463;
p. 462; "Li^Te
Bouteiller,
des droiz et
"Somme
rural",
1.
1, 11,
IJv, 1.
154
Chapter
VI]
39e
'5 It is curious that this passage is not known to or, at least, has not
been cited by the authors who have devoted monographs to trials against
animals; Beaumanoir, chap. 69, no. 6, Vol. II, p. 485: "Those who
administer justice in their lands put animals to trial when they kill a
person
so, if a sow or some other animal kills a child, they hang the
animal and drag around the body but this should not be done, for dumb
beasts do not know what is right and what is wrong, and therefore it is
justice lost.
For justice should be done to avenge the offense, and in
order that the author of the crime may know and understand that he
suffers for this offense a certain punishment; but this understanding is
not to be found in dumb beasts. This consideration is denied them by
those who try in court and put to death dumb beasts for crimes the lords
do this for their own profit, as a thing to wliich \\\Qy are la\\'fully entitled."
Bouteiller also devotes a paragraph to trials of animals in title .38 of
book I, of his "Somme rural", ed. 1621, p. 267. For the details concerning these trials and examples of them which have been noted, one
;
may
155
3<)el
[Part
I,
Title
II
for
the responsibility
fault
is
is
a true personal
I,
c/.
the crime
must
" Etablissements de
p.
We
156
Chapter
VI]
39e
in the
had helped
period.^'-
There were numerous precautions to prevent ill-founded crimia severe penalty threatened the one who falsel\'
lodged a criminal charge."*^ A crime must be fully proved in case
Confession seemed
of doubt, the accused was to be acquitted.
nal prosecutions
The
sufficiently
sional
and
prove the crime, they nevertheless pronounced a pro\isentence against the accused (though he should
fictitious
all
release him,
if
he
still
persisted in his
denials.'^
no. 322.
"Livre des droiz et des commandemens". Vol. II, nos. 322, 323, 644.
Sometimes, however, it was permitted to banish him from the
territory which came under the jurisdiction of the court where he had
^"
^*
157
39c]
The
all
cases
it
[Part
made crime
TiTLE
II
circumstances.
I,
excuses, extenuat-
ing circumstances, and aggravating circumstances. The Custumals mention certain excuses. But we do not find in them any
really logical
and
scientific
One can
circumstances.
more or
woman,
or a girl
sometimes
in a church, in a hall
market place
and again by reason of the time, for example, when committed on
a great Church festival, such as Easter, Pentecost, Christmas still
farther by reason of the rank of the criminal, when in a high station
and,
of life, or by reason of the importance of the harm done
finally, premeditation and habitual wrongdoing are also aggravating circumstances. As the most extenuating circumstance for
of justice, in the lord's castle, at the fair or in the
in
homicide, Bouteiller ranks the heedlessness of the offender
this case the punishment ought to be more lenient, though there
;
should be no acquittal.^
The
truth
is
may
Beauma-
i.e.,
to
."'^
been arraigned.
See Tanon, "Registre criminel de Saint INIartin-desand 228; [and Esmein, "History of Continental
Ed.].
Criminal Procedure", Vol. V of the present Series.
" Bouteiller, "Somme rural", book I, tit. 29, p. 182. According to
an ordinance of 1.356, the city of Tournai had the privilege of asjdums for
involuntary murderers; Isamberi, Vol. IV, p. 795.
" Beaumanoir, chap. 31, no. 12, Vol. I, p. 462. At this point Beaumanoir (no. 13) remarks that theft implies criminal intent.
^^ "Anciennes eoutumes d'Anjou et du Maine", F, no. 393, Vol. II,
p. 155; "Li\Te des droiz et des commandemens", Vol. II, no. 903.
*^ Beaumanoir, chap.
30, nos. 102 to 104, Vol. I, p. 455; "Anciennes
Champs",
pp.
xeix
158
Chapter VI]
insulted with
39e
and extreme
violence
''''
Crimes being personal (as the old Custumals say), they must,
from the point of view of penal justice, bring punishment
Suppose that a band of criminals
against their authors only.
the law must punish
has been caught, says Beaumanoir
An old Noronly those against whom there is good proof.'"'
man treatise tells us that a certain bailiff of the Duke, as
soon as he learned of a crime, used to arrest the parents of the
but the seneschal of Normandy suppressed this abuse,
suspect
and warned the bailiff' that he could use such harshness only against
the offender and his accomplices, that is, his partners in the crime.'^;
It followed,
still
more
made
stead.""^
No
and accomplices.
In general, they are all placed on the same level and subjected to
the same punishment, as if each had himself alone committed the
This principle is applied even in the case where the
crime.^^
penalty incurred is a fine in other words, each guilty party in the
;
to
it
is
fine."
But wlien
or accessory.
Still,
there
are cases where the Custumals class with the author of the (Time
persons who to-day would no longer be treated with that rigorous
severity
and thus
it is
coutumes d'Anjou
des droiz et des
et
du Maine", F,
commandemens".
p. 198.
is
book
^5
I. tit. 29, and l)ook 11, tit. 40, edition of 1<)21, pp. 310 and 1490.
Beaumanoir, chap. 30, no. 92, \o\. I, p. 447.
159
;i9e]
tlie
[Part
I,
Title
II
or instigated, or ordered
''^
liability.''^
Apart from
theft,
w ith
full
murderer, unless he be a
knowledge
relative.*^
But
^^
droiz et des
commandemens".
Vol.
II,
11, Vol.
no. 229.
I,
p.
461;
"Livre des
" "Livre des droiz et des commandemens". Vol. II, no. 362. Likewe read in the "Livre de jostice et de plet", p. 307: "And if one
sees another commit murder, kill, desert, betray, rob and maim, and
wise
does not raise a hue and cry, or does not do his best to capture him,
what will be the result? It is said that he must seek pardon of the king.
For it is evident that when he does not do his best to capture or to raise
I boimd
a hue and cry, he consents to the deed. Now if one asks
to capture or to raise a hue and cry in case of other offenses, the answer
is yes, in case of highway robbery, demolishing a house, and similar
serious cases, or cases where loss of life or limb is entailed.
In other
cases one is not so bound, except in case of injury to himself or to his
people; for these one must help in good faith."
^* "Capitulaire d'Ansegise",
book III, chap. 23; Pertz, "Leges",
Vol. I, p. 303; "Livre de jostice et de plet", p. 281; cf. Viollet, "Etablissements de Saint Louis", Vol. I, p. 251; Beaumanoir, chap. 31, nos.
7 and 8, Vol. I, p. 460 and chap. 69, no. 19, Vol. II, p. 493; "Anciennes
coutumes d'Anjou et du Maine", B, no. 35, Vol. I, p. 83; C, no. 29, Vol.
I, p. 219
F, nos. 1354 and 1355, Vol. II, p. 499.
"" See in this respect, "Anciennes coutumes d'Anjou et du Maine",
F, nos. 602 to 615, Vol. II, p. 222; K, nos. 217 to 219, Vol. IV, p. 108;
:
Am
N,
160
Chapter VI]
The
39/
had some limitaWhenever a criminal committed suicide to escape prosecution, they tried him and inflicted the penalty on his corpse so too,
when the culprit had been killed while trying to escape justice.
Even in the 1500 s, Ayrault in his book, " De I'ordre, formalite
tions.
still
sanc-
own
his
by
heinous crime.
The crime
traitor's posterity
of treason
was
visited
even on the
common
welfare, in that
it
was
was
fre-
But
extend them.^
is
Specific Crimes.
.']9/.
In
when
the offender
is
when
it
disa])peared
it
neighbors, for certain kinds of oft'enders taken in the act, to ar2 On March
2, 1326, Charles II, King of Navarre, was accused, before
Parliament in the presence of the king and the peers, of th(> crime of
"lese majcste", although he had been dead since the first of .January of
year.
During the trial the court affect (>d (o l)e ignorant of
circumstance; and when the case was put to tiie judges, the king's
lawyer maintained with faltering words that according to feudal law
it was permissible to continue ])roceediiigs in case of felony even after
the death of the vassal.
But finally, in spite of their desire to confiscate
See Isamberl,
the lands of the deceased, the cliarge was allowed to lapse.
Vol. VI, p. 620.
Beaumanoir, chap. .30, nos. 102 (7 seq.^ Vol. I, p. 4.).); "Livre des
droiz et des commandemens", Vol. II, no. .'S.SO.
2 Glasson, "Clameur de haro", may be referred to;
here it is enough
same
the
this
to
39/]
[Part
1,
Title
II
them
or at least to raise a
juristliction
period lost
all
practical usefulness;
point of view.
Beaumanoir
tells
and counterfeiting.
Batteries
details.
heresy,
sedition,
conspiracies,
insults
to
the king,
witchcraft,
162
Chapter
more
VI]
insults, batteries
the
game and
ainoiif^
39/
of
weapons, \iolations of
if
the former
is
convicted of false
He who
suffered.
advises only
<lesign
is
it,
who
on pain of sharing
the
of
in the guilt.
is no appeal.
The culprit is quartered or flayed alive all
goods are forfeited to the lord or the king. The offender's
children are to be " exiled, there to suffer a merited death
There
his
detestable that
of
will
show
its origin.
^^
The crime
in
In the former case, it is always a capital crime
when death results.^ In Beaumanoir's time,
consi)iracies and plots, it seems, were freciuent, especially b>townspeople against their overlords. If the lord learns of it
before the plot is carried out, he may have the leaders hanged,
other person.
the
">
latter,
only
Bouteiller,
"Somme
man
Bouteiller,
et des
rural",
book
T,
commandemens",
Tho
39, pp. 47S and 479.
no. 7(32, Vol. II, p. 195, inf(jrnis
tit.
"Somme
163
au appeal.
30/]
[Paut
I,
Title
II
and may imprison for a long term the other participants. Beaumanoir speaks of a long term of imj)risonment as the penalty for
those who make combinations and declare strikes.^ Bouteiller
"
also deals with crime of combination which he calls " monopoly
The
foregoing
representatives.
them
may
of variant degrees,
in
its
we
find
some injury
to a
is, killing with premeditathan secret homicide. But since these two circumstances are most often found together, i.e. since murder takes place
almost always in secret, there is still, for a while, some difficulty
They finally succeed in
in distinguishing one from the other.
defining homicide (" meurtre ") as the act of killing one's fellow-
tion, rather
10
"
"Somme
Bouteiller,
Bouteiller, ibid.
rural",
book
I, tit.
I,
p. 430.
28, p. 290.
and sentenced
164
Chapter VI]
man
in
ambush
("
guet-apens
"),
that
is,
with
39/
prenu'ditation.
Murder
if committed by a woman
by a son against his father, or by a father
The old Custumals remind us of the well-known
is
especially heinous
to be hanged.
a result of
If
this ill-treatment
(and of course,
was termed
mother's
its
" encis."
"Anciennes cou-
'*
as
This crime of
-^
tumes d'Anjou
womb
if
I,
I,
429; F, nos.
no. 96, Vol. Ill,
p.
'^
Bouteiller,
"Somme
book
pp. 148S
and
1493.
Benumanoir, chap. 69, no. 22, Vol. 11, p. 95. Notice this period of
is certainly of very old Germanic origin.
^* "Livre de jostiee et de plet", p. 284.
On this point one sometimes
finds cited the "Livre des droiz et des commandemens", no. 823; hut
this text deals with enchanters' philters rather than with poi.sonings
properly speaking; the offender must nevertheless pay with his life if
the philter has caused death; otherwise, the judge may mitigate the
penalty.
On the poisoning of wells, see "Anciennes coutumes d'Anjou
'^
et
du Maine", E,
I,
p. 435.
book
1492.
1(35
39/]
[Paut
I,
TiTLE
II
was accorded to the unborn child. This protecwas accorded only as against a third party, and not
special protection
tion, howe\'er,
It
is
indeed astonishing, at
first
impression,
tradiction only.
Amidst such
The
tradition
life
the
was no longer
in force,
it
is
Roman
was not followed, and ancient usage prethe Church contributed in some measure
it did indeed condemn infanticide energetically
to the survival
but as it never pronounced the death penalty for any crime, the
result was that, whenever a woman was brought before a church
court for this offense, the sentence was only a short imprisonment
fanticide
^'ailed.
^^
but here
Strange to
it
sa}',
2'
166
Chapter
VI]
39/
inflict
infanticide
still
The
insults,
We
medium
or non-capital crimes.
wounds are
})unished
by a
according to
whether they cause blood to flow or not.^ However, some woundings were punished more severely, because of their nature and the
circumstances. For example, instead of the usual simple fine,"*'
purpose, at the period when, under the influence of Roman law, the murder
by burning began to be considered as a horrible crime.
"Etablissements de Saint Louis". Iiook I, lit. :V.). ed. Violld, p. .
"Livre des droiz et des commandemens", no. 'M\).
"Anciennes coutumes d'Anjou et du Maine", F, no. 13GS, XDl. 11,
of the child
-"
2'
28
p. 503.
Louis", book
107
;}9/]
[Paut
I,
TiTLE II
flicted
ever the
wound caused
like,
of a person killing
he is guilty, if the victim
but it is
party against which he was fighting
the latter
person belongs to his own band
dently
or
considered as
a mere
accident.^"*
maiming an-
belongs to the
no crime
case
Any
if
the
being evi-
other
use
of
force against the person was punished in various ways, gene.g. force used to prevent
erally (being non-capital) by fines
will.^^
a person from making his
nonInsults were ordinarily treated like blows and wounds,
;
by
fines.
Some
The
distinguish
two kinds
of insults,
causing sores, the latter with blows not causing blood to flow
respectively punished by a
" Grand Coutumier de
The
true,
is
criminal,
'^ "Registre
criminel de Saint-Martin-des-Champs", p. 35; "Anciennes eoutumes d^Anjou et du Maine", E, no. 80, Vol. I, p. 432; I,
no. 99, Vol. Ill, p. 261; "Grand coutumier de Normandie", chap. 74,
ed. Gruchy, p. 175.
The term "mehaing" applied specifically to a wound
causing mutilation.
33 Bouteiller, "Somme rural", ed. 1621, book II, tit. 40, p. 1492.
^* Beaumanoir, chap.
69, no. 8, Vol. II, p. 487.
36 Bouteiller, "Somme rural", ed. 1621, book II, tit. 40, p. 1490.
38 "Etablissements de Saint Louis", book I, chap. 154 and book II,
"Anciennes
chap. 25.
"Coutume de Touraine-Anjou", no. 143.
eoutumes d'Anjou et du Maine", F, nos. 1336 to 1337, 1342, 1349, 1399,
1422, Vol. II. p. 495; I, nos. 121 and 122, Vol. Ill, p. 278; L, no. 322,
Vol. IV, p. 275.
3' "Grand Coutumier de Normandie", chap. 86, ed. Gruchy, p. 196.
Moreover, one who orders an insult is punished as well as the one who
uttered it: "Anciennes eoutumes d'Anjou et du Maine", F, nos. 1345
and 1350, Vol. II, pp. 497 and 498; "Li\Te des droiz et des commandemens", nos. 287, 506, 592.
3* "Livre des droiz et des commandemens", nos. 608 and 648.
168
Chapter VI]
39/
from defamation
but of the latter, however, he makes virtually
a serious insult entailing a fine of sixty sous this rule is found also
in most of the other custumals.'*^
;
Though
in general
women.
There
are,
against men.
must be cautious
off
by
women
force
an accusa-
in lodging
falsify
and
when they
assert
It seems,
^i()lence.
with
them.^''
Rape is no less grave a crime than abduction, and is also punishable by death
but the victim must make speedy complaint and
exhibit visible signs of the violence.^''
If the rape was followed
;
''
"
Bouteiller,
et des
"Somme
eommandemens",
no. 651.
pp. 1477
and
148G.
Boideiller,
169
39/]
by marriage,
it
as
in
[Paut
I,
Titlk
was no crime
ment.''^
The most
adultery,
''
Custom
a
were whipped through the town.'"* This
alternative penalty, shameful and contrary to public decency,
was widely spread in the IMiddle Ages, especially in the South,
though finally its objectionable character was recognized in Bouteiller's time it seems to have disappeared in the North, where
according to the
fine
of sixty sous or
et
du Maine", F,
et
p. 503.
*^
p. 488.
" Bouteiller,
II,
"Somme
Ill, pp.
in the
Ill, p. 597.
170
Chapter VI]
39/
the penalty of the fine only was inflicted.^^ Occasionally, the judicial duel was ordered in litigations of this kind, e.g., by a judgment
counsel for one of the accused and a witness of the combat. '^^
Those who, without papal dispensation, contracted marriages forbidden by law suffered a general confiscation of all their possessions, in favor of the lord high justiciar
this penalty was clearly
borrowed from the Roman law.''^
Of crimes against property, arson is the gravest and theft the
most frequent. ]Most custumals punish the crime of arson by
death; others are less severe, but perhaps more cruel, for
they speak of loss of the eyes or of some other inhuman punish;
ment.^^
Thus
theft, or larceny,
The Custumals
it
is
virtually
''
"
Bouleiller,
"Sommo
book
II, tit. 8, p.
1257.
man
"
"De
et des
Const.
G,
commandemens",
p. 231.
^' "Etablissements de Saint Louis", book I, chap. 82;
"Grand Coutumier de Normandie", chap. 71; "Livr(> de jostic(> et de plet", 280,
"Anciennes coutumes d'Anjou et du Maine", B, no. 22, Vol.
285, 300.
I, p. 78;
F, no. 1334, Vol. II, p. 493; "Coutume de Bayonuo", chap.
114, no. 9.
Jean
d'Ibelin,
chap.
119;
171
39/]
[Pakt
I,
Title
II
by the
early
Germanic
is
The
still
offender
is
fine,
Salic
thief
was
to
have
his eye
put out
the
was cut off for a third, he was condemned to death. ^^ The medieval Custumals preserved, in general, this system, introducing no
change except as to the manner of mutilation ^^ thus Liger re;
condemned to death, have his eyes put out, or his nose cut off.^^
But furthermore, the Custumals punished certain thefts (even when
the oflPender was not taken in the act) with particular severity
they imposed the death penalty, with confiscation of property,
according to the circumstances of the crime or the rank of the
persons, for a theft by night, or with violence, or by a servant
from his master, or by a vassal from his lord.^^ Conversely, thefts
" "Tres aneienne coutume de Bretagne", chap. 101; "Grand Coutumier de Normandie", chap. 71, which requires, however, that the
victim of the theft should raise a hue and cry. According to the Custom
of Bayonne (chap. 67) if one night has elapsed since the theft, the offender
is not taken in the act.
^2 "Assises de la cour des bourgeois", chap. 241
"Etablissements de
Saint Louis", book II, chap. 2.
Beaumanoir, chap. 30, no. 93 and chap.
31, nos. 1 et seq., no. 14; "Grand Coutumier de Normandie", chap. 23.
For the curious particulars of the procedure for theft, see Jobbe-Duval,
"Etude historique sur la revendieation des meubles en droit frangais."
3 Capit. of
779, Pertz, "Leges", I, 38.
" "Coutume de Touraine-Anjou", no. 22; "EtabUssements de Saint
Louis", book I, chap. 32.
^* "Anciennes coutumes d'Anjou et du Maine", F, no. 1379, Vol. II,
p. 505.
8^ "Assises de la cour des bourgeois", chap. 232
"Charte communale
d'Abbeville", Art. 2; "Olim", Vol. I, pp. 240 and 328; "Li\Te des
droiz et des commandemens", nos. 347 and 580; "Anciennes coutumes
d'Anjou et du Maine", B, no. 28, Vol. I, p. 81 C, no. 26, Vol. I, p. 217;
D, nos. 33, 81, 82, Vol. I, pp. 406, 432; F, nos. 796, 797, 1371, 1373,
1382, Vol. II, pp. 288, 504, 505; I, no. 101, Vol. Ill, p. 262.
;
172
Chapter VI]
by banishment
able only
or
by
39/
were punish-
fine.^*^
larceny,
when the
is still
offender
is
by the
lash
if
the offender
is,
(but not confusing them) certain acts which to-day would constitute breach of trust, cheating, or other forms of dishonesty
he
inflicts
man who,
thus
knowingly,
sells
The crime
oi forgery (falsification)
false
is
false
and
meas-
ure, false writing, false complaint, false witness, false oath, etc.
All
condemned to be thrown into a boiling calBouteiller regards counterfeiters guilty of " lese majeste "
of false money.^
hand cut
He who
demned
He who
counterfeits merchandise
off
if
it,
is
thumb. "-
"La
also Boutaric,
^o
Bouteiller,
"Somme
173
39/]
[Part
I,
Title
II
document)
offender
is
^'^
mere
fine,
He who
stole
game
174
Chapter VI]
if
by
night,
39/
he incurred
death.80
At
this period
it
in
(lid in
the interest of public peace and order, and, where royal ordinances
are lacking,
we
and
town
in the
Customs
what the royal power
Gambling
statutes.
is
of the year.^'
Ord.
rural",
Bouteiller,
"Somme
of Philip the
Fair of 1299, Isambert, Vol. 11, p. 724.
8' Ordinance of Philip the Fair of 1319 forbidding, under penidty ()f a
fine, the playing of dice, backgammon or trick-track, quoits, nine-pins,
billiards, bowling and other similar games whicli divert men from military
drills
Isnmherl, Vol. Ill, p. 242 Ordinance of Cliarles V of April 3, 13t)9.
which forbids, under penalty of a line, the participation in games of
chance and enjoins the practice of the bo\v and cross-bow: Isambert,
Vol. Ill, p. 352.
S2
Januarv 22, 1397, Isambert, Vol VI, p. 782.
"Somme rural", book 11, tit. 40, ed. 1021, p. 1473.
^* "Li\Te de jostice et de plet", p. 282.
"Ord. of Charles VI of March 9, 1399, Isambert, Vol. VI, p. S44
Bouteiller, "Somme rural", book II, tit. 40, ed. 1021, pp. 1474 and
1483.
:
175
39/]
persons.
Still,
we
may
magistrates
may
[Part
if
I,
Title
II
Customs meas-
arrest them,
imprison
no crime can be charged
expel them.**''
fiscal offenses,
non-
civil,
half feudal,
which con-
all of
may
be
methods
errors
or, at
any
8^
p.
rate,
up
to a certain sum.^^
II, p.
48;
I,
them
this favor,
"
Bouteiller,
"Somme
rural",
book
1621, p. 1484.
p. 434.
I,
p. 465.
XIP
siecle",
Cf. Delisle, "Des revenus publics en Normandie au
in the "Bibliotheque de I'Ecole des Chartes", 3d series, Vol. Ill, pp. 105
"
et seq.
",
Great Roll of the Pipe
Cf.
I, Richard I, 71.
" Roisin, "Franchises de Lille", p. 29, no. 6. Cf. Brunner, "La
parole et la forme dans I'aneienne procedure franaise", in the "Revue
^^
176
Chapter VI]
39/
trial
in fact, he was
obhged, under pain of a fine, if ordered by the judge, to answer
word by word the charge formulated against him ^- he even
risked falling " in misericordiam curiae ", which gave ground for
a discretionary
With
making answer,
or,
it,
(it tells
and the
on
he
is
without awaiting
commits another,
have awaited the order of the judge, and for this
second error he incurs a new fine.^^ One might multiply examples,
but they are too well known to need dwelling upon.^^ The counsel
(" for-speaker ", " prolocutor ") ran less danger than the client
himself
nevertheless, he must take care not to go beyond his
powers, for later his client might disavow his acts, and if the client
rashly
rises,
for he should
was
ai)i)eal
must
177
;})/]
[Pakt
J,
Titlk
IL
if
and a
fine against
procedural
the
were
fines
more or
at times the
sum
fines,
without right
against one
If
guilty of the
as also one
who
insulted a client.
^^
1480, 1483.
00
Bouteiller,
Bouteiller,
Bouteiller,
40, p. 1481.
40, p. 1482.
40, p. 1482.
103 [Pqj. ^[^g
of the attorney's authority at this period,
see Brunner's essay, translated in III "Illinois Law Review" 257 (1908),
"The Early History of the Attorney."
Ed.]
10* Bouteiller,
book II, tit. 40, p. 1470.
'01
'02
178
Chapter VI]
may
[39/
developed what
they formed the sanction for the
vassal toward
imposed on the lord toward
The vassal guilty of treason forfeited his fief, which
his vassal.
returned to his lord on the other hand, the guilty lord lost the
vassalage due him.^*''^ If the vassal commits at the same time, a
treason and a common law offense, as, if he makes an attempt on
his lord's life, or on the honor of his lord's daughter, both the
feudal forfeiture and the ordinary penalties are inflicted.^'^^ The
violation of sworn faith must not be confused with the neglect of
faith and homage; the latter offense, during the early Middle
Ages, also entailed absolute forfeiture, but later it was punishable
only by conditional forfeiture.^"^ Less serious feudal offenses were
in general punishable only by fines.
Thus, in the earlier period,
according to the " Assises de Jerusalem," the vassal owed a subsidy or " aid" (on penalty of a felony) only when needed to ransom his lord from the enemy in later times, the failure to pay any
his lord,
of protection
Germany and
In
vassal. ^''^
in
Lombardy
fief
in
by the
France
it
army
or to
secular
life,
had
to this period.
'"^
seq..
The most
Vol.
1,
p.
TI,
p. 214.
Jean
d'Ibelin, pp.
100
el
303.
lOG
a new rule.
'"a
"Assises de Jerusalem", Jean d'lhelin, chap. 2(9, Vol. I, p. 307;
"Etablissements, coutumes, assis(>s et arrets de rEchicpiicr de Xormandie", ed. Marnier, pp. 33 and 101.
'"^ Brssel, "Nouvel examen de I'usage general des fiefs", Vol. I,
p.
167.
As for Germany and Lombardy, see " Libri feudorum", II, 24, G;
"Constitutio de expeditione romana", 2, I'crlz, "Leges", Vol. II, p. 3.
is
179
39/]
[Part
I,
TiTLE II
toward the year 1000, gave rise to a radical change in the law.
spread with alarming
the heresy of the Albigenses
Catharism
In a society
Germany.
France,
and
Spain,
Italy,
rapidity through
it
constituted
one of the
religious,
both
civil
and
feudalism
like
the
numerous,
heretics
became
soon
as
Thus,
as
gravest dangers.
Church and royalty stopped at no measure to eradicate them.
The Church no
longer contented
it
itself
the faith.
accused
in particular, the
all trials
Roman
law\
The
of heretics;
is
introduced,
appearance of this cruel expedient for apparently torture was applied but little by the judges of the Church, apart from trials
against heretics. But unfortunately, it now came into general use
;
in secular courts.
or in tradition.
180
Chapter VI]
39/
movement
the Albigenses.
statutes.
all
heretics.
To this
invasion
we owe
tries.
ment
the introduction of the penalty of burning in these counFrom that time on, burning became the common punish-
their personalty
when
In
France a royal ordinance was issued in 1228 against the heretics
in case of clerical heretics,
it
memoir
entitled
" L'h^r^sie
Xllle
in the "Mittheilungen des Instituts fr sterreischischen Geschichtsforschungen", 1880, pp. 177-226, 430; also Paul Meyer, "La chanson
de la croisade contre les Albigeois"; Viollet, "Etablissements de Saint
Louis", Vol. I, p. 2.')2.
1" Pertz, "Scriptores", Vol. XXIII, p. 944, quoted by Viollet, loc. cit.
"2 Isnmhert, Vol. VI, p. .'jl.
"' "Lateran Council of ril."")", chap. 3, in Ilcfclc, "Conciliengeschichte"
(French translation). Vol. Vlll, p. 123; Labbe, Vol. XI, p. 74, col. 148.
ii-'
Isambcrt, Vol. I, p. 230.
*'* Isamberl, Vol.
I, p. 234.
See also an ordinance of April, 1250,
addressed to the inquisitors ibid.. Vol. I, p. 254.
:
181
:i[)f]
Under pretext
ing?,
[Part
I,
TiTLE
II
foot-
made
under pretext of heresy, unless the crime were first proved. Beginning in the following century, these severe measures revive in force.
No appeal is allowed from the sentences of bishops and inquisitors,
either
by
offices,
by their abettors or accomplices or their deThe magistrates must, under pain of the loss of their
heretics, or
fenders.^^^
the lords
are also under obligation to rid their lands within a year of these
criminals, under pain of confiscation in favor of the Catholics. '^^
The " Etablissements de Saint Louis " show us the procedure
of
old
Germanic
by Letters
of
secular authorities.
but
execute him.^-^
"" Year 1298, Isamhert, Vol. II, p. 718.
^ Letter of December 15, 1315, in Isamhert, Vol. Ill, p. 126.
"Somme
182
loc. cit.;
and
167.
Beaumanoir, chap.
11,
Chapter
VI]
39/
less similar
ities,
^^^
but we
the prosecution
from certain cases tried before the secular courts, that the latter claimed to take cognizance whenever the
sorcery or incantation had caused death or sickness '-^ under the
influence of Roman law they had come, in certain cases, to con-
of sorcery
see,
But
all
these crimes he
tilation
122
12*
'25
burned
alive.
^-'*
first ordinance known against enchanters, sorcerers, and sooththat of October 9, 1490; Isatnhert, VoL XI, p. 190, also p. 252.
Beaumanoir, chap. 11, no. 2.5, Vol. I, p. 107.
"Registre du Chatelet", Vol. II, pp. 312 el seq.
is
p. 491.
126
Bouteiller,
127
Bouteiller,
12
is
The
sayers
'23
et
du Maine",
tit.
tit.
legum
"Novum
Enchiridion", p. 293.
"Etablissements de Saint Louis", l)ook I. chap. 127, where the wijrd
"herite" does not seem to be taken in its ordinary sense and to signify
See ViolUt,
heretic, but designates rather a person guilty of sodomy.
"Etabhssements de Saint Louis", book 1, p. 2.')4. '-Livre de jostice et
in Giraud,
'29
183
due Maine",
book I, tit. 28,
et
39/]
less
[Paut
I,
TiTLE
II
all
necessarily
time
tell
The
all
us that blasphemy
is
punished with
less
^'^^
at least, according to
ceded to both secular and Church courts,
Beaumanoir ^^^ but it may be supposed that this double jurisdiction came about only slowly, and that the Church at one period
had claimed for its sole perquisite the prosecution of this crime, but
;
many
its
point
^^^
;
The
^^^
;
teiller,
"Somme
rural",
book
1621, p. 1486.
The
roj^al
ordinances more than once enacted different punishments see the ordinances already cited.
"2 See what is said in the writer's "Elements de droit frangais".
Vol. I, p. 167.
The Church no longer holds to-day that lending on in;
an offense.
Beaumanoir, chap. 68, no. 5, Vol. II, p. 477.
1000 s there was in Anjou a mixed tribunal for the repression
of the crime of usury; see Viollet, "Etablissements de Saint Louis",
terest is
1''
"^ In the
Vol. I, p. 255.
"B Ordinance of 1268, Isambert, Vol. I, p. 338
ordinance of 1274,
Langlois, "Regne de Philippe III le Hardi", p. 299; ordinance of 1311,
Isambert, Vol. Ill, p. 11; declaration of December 8, 1312, Isambert,
Vol. Ill, p. 27; ordinance of July 28, 1315, Isambert, Vol. Ill, p. 116;
ordinance of February 1318, Isambert, Vol. Ill, p. 201
ordinance of
January 12, 1330, Isambert, Vol. IV, p. 377 ordinance of March 25, 1312,
Isambert, Vol. Ill, p. 404; ordinance of May 19, 1337, Isambert, Vol. Ill,
p. 428; ordinance of February 13, 1345, Isambert, Vol. IV, p. 517; ordinance of September 18, 1350, Isambert, Vol. Ill, p. 573; ordinance of
July 18, 1353, Isambert, Vol. Ill, p. 679; ordinance of March 1360,
;
184
Chapter VI]
39/
itself.
Thus,
in certain cities
The ordinance
(perhaps by
was permitted to
pagne and
all."''
of Brie."^
Some
Letters of June
2,
Cham-
December 1392, the same privilege is accorded for money to three Lombards of the same city for fifteen
years.^^^
Again, an ordinance of March 6, 14, authorizes all
inhabitants of Tournai to practice usury .^^ But on the whole
the status of usurers was always precarious in the Middle Ages.
Jews and Lombards were often enough authorized to lend with inand it is curious that lending at interest, though forbidden
terest
to the Jews among themselves, by the Old Testament, and also to
usury. ^^^
Later, in
but the permission given to the Lombards is more difficult to exand can only be attributed to the exigencies of commerce.
However, both Jews and Lombards were continually subjected to
the most arbitrary measures. In 1270, they were expelled from the
kingdom ^*- though presumably they soon returned, for ordinances
were issued against usury in 1311, 1312, 1315, and 1318.^^^ In
This was
1330, debts due to usurers were reduced by one third.
evidently a measure destined to prevent the ruin of dol)tors, on
the theory that nothing is more ruinous than the compounding of
interest but, the higher the interest the more ra{)idly it compounds,
and the more danger a money-lender runs the higher is the interest,
so that, in reality, this protection turned against the debtors.'"
In 1332, the king took a wiser step, by fixing the rate of interest."^
But soon there is a return to even more radical prescriptions in
plain,
V,
"'
1
'^^
1 Isambert, Vol.
IV, p. 404.
185
39/]
[Paut
I,
TiTLE
II
king, the hitter to collect the capital, but to remit to the debtors
^'^'^
usurers;
debtors
is
in 1363,
suspended;
''^
is
proclaimed a confiscation
in 1303,
Lombards
judgments ^^
appointed to discover, try, and punish
commission
in 1402, a
is
to prosecute their
by
final
usurers. ^'^
With the
severe
came
to be less
the right to lend on usury was more easily and more widely
granted.
a crime.
nevertheless, to be considered as
who
it.
"Etablissements,
coutumes, assises
de
it belongs
rather under the history of contract; cf. Beaumanoir, chap. 68, nos. 2
et seq., Vol. II, p. 476; "Aneiennes coutumes d'Anjou et du Maine"
A, no. 21, Vol. I, p. 47 B, no. 95, Vol. I, p. 120 C, no. 88, Vol. I, p. 304
F, nos. 572, 583 to 587, Vol. II, pp. 212, 216; K, no. 212, Vol. IV, p. 106
L, no. 445, Vol. IV, p. 327.
;
186
Chapter
FRANCE
VI]
IN
39j
thus they render useful service and are even welcome in France.
Smcic^e was regarded (jierhaps under the influence of the Church)
Self-killing had been punished in Greece, and at times
as a crime.
in
as an
On
ofTense.^'^'
was treated
corpse of the suicide, whether his motive had been to escape crimiSuicide was excused only when
mental alienation, or as a result of intense sorrow
but in a doubtful case neither was presumed. On
a verdict of guilty, the court pronounced confiscation of personal
property in favor of the lord or of the king.^'^ The custom long
was to order the corpse of the suicide to be hanged and then destroyed.
But the later treatises speak only of the confiscation of
personal property; whence may be supposed that the hanging of
the corpse, a practice both odious and absurd, had fallen gratlually
nal justice or
committed
in a
moment
of
into desuetude.^^^
399.
Punishments.
In
The
all,
of the
Germanic folk-law
period,
had almost
entirely disappeared.
The
com-
to intimidate evil-doers.
leniency
ai)i)rcciable
15^
'^*
'^*'
'^^
"Somme
Bouteiller,
rural", book II, tit. 11, oil. 1021. p. 1295.
See for example, Titus Livi/, XVI, 1.
"Aneiens coutumiers dv IMcardie", ed. Marnier, p. ()0.
See on these various points Bcnumnnoir, chap. (10, nos. 0, 10,
12,
187
39{/]
part
punishments had
[Part
I,
Title
II
by Roman
The judge
the crime.^
the circumstances of
sideration
did,
Xo maximum nor minimum hamhe had not a large range of disThe penalty of imprisomnent was almost unknown
cretion.
for the most serious crimes almost always the death penalty was
he had only a choice between the different kinds
prescribed
Fines alone were often left entirely
of painful punishments.
termination of the penalty.
pered
him.
But
reality
in
Whenever a
to his discretion.
regional
of
make
use
the
All
of
the
jurisdictions
could,
punishments, even
the
in
theory
seigniorial
the people.
de
plet ",
(It is
man
made
"Livre de jostice et de plet", pp. 277 et seq.; Bourural", book I, Vol. 29, ed. 1621, p. 305.
2 It was conceded that the lord of the manor could fix punishments
"Anciennes coutumes d'Anjou et du Maine", I, no. 9, Vol. Ill, p. 390.
* "Li\Te des droiz et des eommandemens", no. 787.
^ "Registre
The
criminel de Saint-Martin-des-Champs", p. 93.
aldermen of Saint-Omer could pronounce the penalties of death, mutilation, banishment, pilgrimage, burning of the hand, or the "amende
honorable", not to speak of the less severe punishments, such as fines;
see Giry, "Histoire de la ville de Saint-Omer", pp. 218 to 225.
* See, for example, "Li\Te de jostice et de plet",
pp. 277 et seq.: Beaumanoir, chap. 30, Vol. I, pp. 410 et seq.: "Anciennes coutumes d'Anjou
et du Maine", F, nos. 363 et seq.. Vol. II, p. 144; Bouteiller, "Somme
rural", book I, Vol. 29, ed. 1621, p. 304 book II, Vol. 40, p. 1464.
^ "Livre de jostice et de plet", p. 113
"And if any one offends before
the people and absconds and through malice does not wish to come forbut
ward, he shall have no longer term than the time of his absence
he shall have the term of the punishment, namely, of three assizes for
*
teiller,
"Somme
188
Chapter
VI]
39^
the worst crimes, notably that of " lese majeste ", the offender
was dragged around the locality before being hanged.^- At times
also, for heinous crimes, the offender, instead of being
The punishment
decapitated or quartered. ^^
hanged, was
by
of death
;
we do not
l)reak-
find
it
in
12, 139C,
reformed
this.i^
Next
came that
of mutilation.
It \'aried
we must bear much and wait before putting a man to death for it is a
serious thing to unmake what God has made and to do what he does not
;
wish done."
^"Etablissements de Saint Louis", book I, chap. 35; "Livre de
jostice et de plet", p. 280; Beaumanoir, Chap. 30, nos. 2 to 13, Vol. I,
pp. 410 et seq.; "Aneiennes eoutumes d'Anjou et du Maine", E, nos. 77,
80 to 82, 85 to 87, 91, 92, 95, 98, 99, 104, 105, Vol. I, pp. 430 cl scq. F, nos.
1363 to 1388, Vol. II, pp. 502 et seq.: "Livre des droiz et des eomniandemens", nos. 347 et seq.; " Registre eriminel de Saint-Martin-di's-Cliamps",
:
pp. xcii
et
seq.
Cf.
Wilda,
"Das
cxi.
1"
"
xevii, xcviii.
Ibid., pp. xeiv and exi.
'- Ibid..
" Ibid., p. 226.
Ibid., pp. xciv and cxi.
pp. 88 and 121.
"Aneiennes eoutumes d'Anjou vl du Maine", F, no. 13(53 ct seq..
"
Vol. II, pp. 502 et SC7., giving an enumeration of all the principal cases
incurring the death penalty and its various modes of application.
" Bouteiller, "Somme rural", book I, Vol. 39, ed. 1021, p. 477.
1* Isambert, Vol. VI, p. 775.
189
39^]
Sodomy
of a third offense.^^
punished by mutilation. ^^
[Part
I,
Title
two
in
first oftenses,
II
case
was
had his hand cut off ^^ one who used false measthumb. ^^
Most freThe punishment of whipping was rarely applied.
upon
occasionally
inflicted
it
was
for
children,
reserved
quently
minor matters.^"
Among
The
hrand.
the public in a more or less disgraceful position. This punishment was especially used for blasphemers, in certain cases for forgers.
Beaumanoir
tells
is
punished by
be put in the
pillory,
much
less
Thus,
severe.
d'Anjou
1^
We
190
Chapter VI]
[ 39<?
2* Beaumanoir, chap.
30, no. 36, Vol. I, p. 422; "Aneiens eoutumicrde Pieardie", ed. Marnier, pp. 46 and 51; "Registre criminel de Saints
Martin-des-Champs", pp. eiv el seq.; "Anciennes coutumes d'Anjou
du Maine", F, no. 1273, Vol. II, p. 474. Cf. F, no. 1438, Vol. 11, p.
517, for cases where one's goods can be returned to him.
25
See "Etablissements de Saint Louis", book 1, chap. 104; '"Livrc
des usaiges et anciennes coustumes de la conte de Guynes", no. 333, p.
169; "Livre des droiz et des commandemens", no. 257, Vol. 1, p. 410;
et
199.
" Beaumanoir,
p. 119.
chap. 30, nos. 19, 45 el s:q.. Vol. I. pp. 41(> and 424.
"Livre de jostice et de plet", p. 119 "Thus the pri.soner i.s helped
the name prison applied to the prison of a great lord, the i)risons for
For the privih-gcs enjoyed by cirtain
thieves, the prison for enemies."
prisoners, especially as to prescription. See "Anciennes coutumes d'Anjou et du Maine", F, nos. 865, 1081, 1142, 1143, Vol. 11, pp. 311, 409.
3"
191
393]
[Part
I,
TiTLE
II
But the royal power did not concern itself with prisand then at first only with certain ones,
ons
The information that has come down
Paris.
of
those
notably
that prisons, even in the Middle Ages,
assertion
the
justifies
to us
of
debauchery
and cruelty, whence the acplaces
already
were
came
out
more
perverted than when they
condemned
or
the
cused
entered.^^
had
The pecuniary penalties of the Middle Ages consisted chiefly in
Contotal or partial confiscation and in various amounts of fines.
fiscation was sometimes a principal, sometimes a secondary penalty.
In some cases it extended only to certain kinds of property, in others
their death.
in the regional
etc.
This
confiscation of personal
accompaniment
It must be remembered, however, that confiscawas subject to special rules of feudal law. A general
confiscation of property, personal and real, is not prescribed in the
"
regional Customs it is found only for heresy or for " lese majeste
In the earldom of Flanders it was limited
in Anjou and Maine.^^
day
civil death.^^
tion of fiefs
i
See, on the prisons of Saint-Martin-des-Champs, "Registre criminel
de Saint-Martin-des-Champs", p. cxix. For the ordinances regulating
prisons, see ordinance of December 24, 1398, Isambert, Vol. VI, p. 826
April 1410, Isambert, Vol. VII, p. 230; regulation of May 1425, Isambert,
ordinance on the police of the prisons of Paris, October
Vol. VIII, p. 698
1485, Isambert, Vol. XI, p. 147.
Cf. Letters of 'King John of 1351, declaring that the abbots and superiors shall visit and console t^\ice a month
;
673.
On
p. 515.
192
Chapter VI]
to five crimes
^''
:
l)attle
39^
against
;'^^
and even
in these cases,
end.
For
less harsh,
"Somme
35
Bouteiller,
'
Beaumanoir speaks
9, Vol. II,
" The early regional Customs of Anjou and of Maine prescribe, also,
that he who profits by the confiscation shall pay the debts; that was evi-
dently a principle of
et
du Maine", F,
193
;i<)f/]
[Part
I,
Title
II
epoch a j)eualty of sixty sous had been the typical royal fine inthere was also a minimum
curred for violating the royal ban
varying
according
to the regional or folkfine, also typical, but
;
the
first is still
Now we
lived."^^
common
fines,
the second,
that
security required
is,
by
local
custom.
Numerous
used violence in court, or who escaped after arrest for debt, or who
sheltered in his house a convict " put outside the law," or who
bore false witness, etc.'^ According to the early regional Customs
of
Anjou and
who
was applicable to
c/.
"Leges", I, 227.
Beaumanoir, chap. 30, nos.
194
Chapter VI]
the merchant
who
who
Z9g
wronjffully
executed a fraudulent deed to evade the relatives' right of re-purchase and in other instances.^'' Sometimes the regional Custom
;
itself fixed
tom
Anjou speaks
of
between the fine of sixty sous and the " amende de loi." According to Beaumanoir, for insult the fine varies according to the
station of the persons and the gravity of the case."*^ The " Etablissements de Saint Louis " speak of a fine of fifteen sous for assault.
The same
Whenever
a fine did not seem sufficient, the judge could add imprisonment.''
(Note of the
fine paid by the vassal in order to redeem liis fief.
;
Tr.)
" "Etablissements de
Viollet,
Martin-des-Champs",
p. 107.
In the following te.xts it
in
.\njou
nos. KM).
101, 106, Vol. T, p. 4.38; F. nos. 14(K), 1411. 1415. 1427. 1430. 1131. Vol.
II, pp. 509, 511, 514
I, nos. 120. 126, Vol. III. pp. 277, 2S().
*' Beaumanoir, chap.
30, no. 19, \'ol. 1, p. 416.
;
195
39^]
ceedings,
[Part
I,
TiTLE
II
if
and
granted " Letters of Remission " in the second, " Letters of AboliThe former represented his power of pardon, the latter his
tion."
;
amnesty. There are numerous examples of these. Amnesty was granted at times to one or more individuals, at other
times to an entire city; thus the city of Paris obtained " letters
of abolition " from the Regent during the captivity of King John,
power
of
dated August 10, 1358.^^ During the first part of the period here
treated the king apparently reserved as an essentially personal
privilege the right of granting Letters of Abolition of of Remission
it did not belong to his officers or magistrates, unless he delegated
Thus Letters of Charles VI, of September,
it to them in due form.
;
1398, allowed the provost of Paris to rem-it fines of ten pounds and
in civil cases, to persons imprisoned for non-payment,''^
over,
mandate
upon the Chancellor
Likewise, a
of Charles VI, of
of
March
in council, all
The same
privilege
and was
also con-
of the crown,
May
"
p. 54.
196
Ibid., Vol.
VIII, p. 14.
Chapter VI]
39g
ceded to counts and barons but it was not conceded to the lords
having " high justice " who were not also lords of manors, unless
they had acquired the right, either by grant or by usage.
More
than once such Letters became the subject of mercenary traffic
;
^'
by the
197
TITLE
III.
CHAPTER
VII.
GERMANY'S
RECEPTION
ROMAN LAW
1500
CHAPTER
VIII.
IX.
CHAPTER
X.
GERMANY
XI.
THE
EARLY
IN
1600
THE LATE
1500
AND
s.
1700
CHAPTER
OF
THE
s.
THE
CHAPTER
IX
s.
199
Chapter VII
GERIMANY'S
40.
sis.
Law.
4L
ing
the
Legal
43.
44.
Italian
42.
The
Recognition
Comparison
and the
Careless
lication.
Punishments
of
of
the
Bambergensis Outside of
Bamberg.
The "(\irolina." Local Opposition.
The
"Saving
Clause."
trines.
THE
L\
Local
Law.
Intrinsic
Merit of the Bambergen-
Features of
LAW
the
of the Carolina
Bambergensis.
Manner
of
Pub-
Varied Applica-
Bambergensis.
Relation
of the Bambergensis to the
may be consulted
Staats- und Rechtsgeschichte", III, pp. (ill et seq.; Scliffner, "Geschichte der Rechtsverfassung Frankreichs", III, pp. 427 et .seq., pp. (il
et seq., IV, pp. 322 et seq.; K.Htlin, "Geschichte des deutschen Strafrechts
im Uniriss, lierausgegelien von Gessler" (1859), pp. 200 el seq.; (leib,
"Lehrliuch des deutschen Strafrechts", I, pp. 240 et seq.; \'nn Stintzing,
"Geschichte der populren Literatur des nimisch-kanonischen Rechts in
Deutschland" (1867); Berncr, "Die Strafgesetzgi-bung in Deutscldand
vom Jahre 1751 bis zur Gegenwart" (1807); Alhird, "Ilistoire du droit
criminel au XVIeme siecle" (Paris, Leipzig, 1808); \'on Holtzenitar,
"Handbuch des deutsclien Strafrechts", I, pp. (17-143; (History of (he
criminal law of countries otlier than Gernumy, \'<>n Holtzemlnrjf, |>p. 144
238); Gterbock, "Die Entstehungsgeschichte der Carolina auf Grund
archivalischer Forschungen" (187())
Von Wchter, "Beilagen zu Vorlesungen ber das deutsche Strafrecht" (1877), pp. 1(K) et seq.; lininnenmeisl'er, "Die Quellen der Bambergensis, ein Beitrag zur Geschichte des
deutschen Strafrechts" (1879)
Von Stintzing, "Geschichte der deutschen
Rechtswissenschaft" (1, 1880).
Collections of the literature dealing with the matter contained in these
chapters may be found especially in the follo\\'ing \\Titcrs G. W. Bhmer,
-
201
40]
[Paut
I,
TiTLE
III
Reception of
Reasons for Reception of the Roman Law.
reception
of
the
liomaii
law,
or to speak
The
the Roman Law.
more correctly, the combination of Roman and German legal principles, which, towards the end of the Middle Ages, came about in
could not long be excluded from
the other domains of the law
the province of criminal law. Here the change came about in a
much more correct manner. It lacked those inconsistencies and
incongruities which we so often find in the other branches of
the law,
the ill effects of which are in part so numerous in
our legal institutions, remaining even until the most modern times.
In great part, criminal law is nothing other than an application
of the generally prevalent philosophic truths and fundamental
40.
rules of morality.
of
the methods of
may
another,
without
rendering
it
incongruous.
This
the law of
is
so,
just
tem
civilized.
Von Wchfer^
Literatur des Criminalrechts " (1816);
"Lehi'bueh der rmisch-deutschen Strafrechts" (2 vols. 1825, 1826);
Kappler, "Handbuch der Literatur des Criminalrechts" (1838); Geib,
"Lehrbuch", I Nypels, "Le droit penal frangais progressif et compare"
(Bruxelles, 1864); Binding, "Grundriss zu Vorlesungen ber gemeines
deutsches Strafrechts" (2d ed. 1877).
[Later wTiters are: Pfeilschifter.
"Das Bamberger Landrecht, systematisch dargestellt" (Erlangen, 1898)
Kohler and Scheel, "Die Bambergische Halsgerichtsordnung" (Halle,
1902); Zpfl, "Die peinliche Gerichtsordnung Kaiser Karl V." (Berlin,
1893); Oppermann, "Die Schuldlehre der Carolina" (Leipzig, 1904);
Christiani, "Die Treuhand der frankischen Zeit" (Breslau, 1912); Kaiitoromcz, " Gobler's Karolinenkommentar und seine Nachfolger" (1904);
Kohler and Scheel, " Die Karohna und ihre Vorgngerinnen " (3 vols. 19001904).
Von Thot.]
"Handbuch der
202
Chapter VII]
40
to us
We may
e.g.,
and self-defense. As we have seen, theology, morality, the Canon and the Mosaic Law often proved themselves false guides.
But all that was lacking in these respects
was to be found in the short and clear maxims of the Roman Law,
and in its certainty in apjilication to individual cases. The later
Roman Law could, in many respects, be regarded as a system more
finished in its development than the native law.
Resort was had
to the former where the latter no longer seemed suitably adajjted
to the particular matter involved. This in the later ^Middle Ages
was often the case.
in respect to negligence
jVIoreover,
in
cities
system of
An
we
prevail.
The
existence of
new and
different
condition of affairs.
and magistrates. A
was required by trade and commerce. In
greater protection
spite of
many
in the cities,
Empire than
far-reaching differences,
was more
similar to the
life,
life
as a whole, especially
of the early
Roman
their
now necessary
Roman
conception of offenses
was better suited than the maxims of the early German law. Instead of choosing the prolix and laborious metliod
of a special statute, it was simpler to treat the Roman Law as a
more complete exposition of the local law. This was furthered
in matters of criminal law, the old
(" delicta ")
l)orrow
city
to
another.
1 Proof
of this is furnished by the EnKlish criminal law, which was
more, if not entirely, removed from the influence of the Roman Law.
203
40]
[Part
I,
TiTLE III
However, the
Permanent Features of the Germanic Law.
defects.
It
was
its
burdened
with
many irraLaw
had
Roman
deformities.
Many
repellent
of
its
features
bore the
and
tional
legislation
enacted
to
serve
temporary
expediency,
of
character
and suffered from the fundamental scientific defect that, through
paying too little attention to the effect of criminal act, its ascertainment of the underlying intention was superficial. Moreover,
it did not make sufficient distinctions in the definition of ofi'enses
in general, it was subject to no restrictions in its treatment of
It
was
every " ex post facto " application of a new statute to the detriment of an individual was to be prohibited, and punishment was
to be permissible only under a statute of which the individual
has, or
must be presumed
to have,
knowledge
and
also to the
and
not, as in the
[A
in Vol.
Ed.]
case-decisions
the
Roman
authorities.
full
pp. 204
of
by Seeger
et seq.
204
in
"Der Geriehtsaal"
(1872),
Chapter VII]
40
One need
applicability of
punishment
new
the manner
joint-wrongdoers.
With a
sure touch,
of
cerned those points wherein the Roman law, although its literal
acceptance would have been possible, yet ran contrary to the
general sense of justice. ]\Iany kinds of attempts at crime, and
Upon
medieval
cities to
any other
result
is
scarcely conceivable.
power
of
fell
mod-
limited in
* Here the theories of the jurists are founded upon a reniarkahlo disHo
cussion by Richardus IVIalumbra at the be^Muninj; of the l.')(J()s.
advances the now generally accepted theory of the retroactive elTect of
later and milder penal statutes.
Cf. Alhrricit.s ilr Rosntc, Toninient.
super Codicem ad le^. 7 C. de legs-", and in regard to this. Sccgcr, "Abhandlungen aus di-m Strafrecht" (18(12). II. 1, pp. ')2 ct scq.
5
Cf. e.g. Hippolytus de Marsiliis (died 1529), "Ad leg. Corn, de sicarus
L. Infamia", n. 16, n. 13.
205
40]
[Part
I,
TiTLE
III
it
^
some statute was
Some writers,^ e.g. Azo and the Glossators, merely commented
upon the Roman law and explained it, but did not expound it
in the light of the " generalis consuetudo ", of the statutes, and
consuetudo
of actual
",^ or
Other
practice.
But
procedure only.
especial
s,
Albertus de Gandino
attention are:
^^
Bartolus de Saxoferrato
^^
who
here deserve
(Gandinus),^- at
in his
commentary
on the law of Justinian, Baldus de Ubaldis (1328-1400), Bartolomeus de Saliceto (died 1412), and lastly Angelus Aretinus de
Gambilionibus (died 1450).^^ Among these the first place must
be accorded to Gandinus, Bartolus, and Aretinus. However,
it was not until the 1500 s, in the work of Julius Clarus,^'^ that
the science of criminal law among the Italians reached its point of
highest development.
law
in
By
was exemplified
", it
Roman
"
the " Bambergensis
in Italy in the
work
of
Angelus Aretinus
To him we
shall
*
''
"Re
stat.", n. 92.
* The earliest treatise specially
557.
ceptarum
L.
V."
(1560,
and many
later editions).
148.
Chapter
41.
VII]
Early
into Germany.
[41
in the local legislation, but also in the popuwhich sought to make the Roman law comprehensible to both the official judges and lay-justices (" Schffen ")
as well as to the educated public. The " Klagspiegel ", ^ coml)ose(l about the middle of the 1400 s, and later edited by Sebastian
Brant, drew especially on the works of Azo, Koffredus, and Gandi-
in
lar literature,
nus.
From
turn,
its
and
directly
also
stantive law
is
of procedure.
The
and more or
sub-
less in-
complete code.
it is
expressly stated
:'"
"
Xot
all
'^
criminal provisions.
"
Stobbe, II, pp. 335 et seq.
^ Walchner, "Geschichte der Stadt
RadolphzfU" (1S25), p. 2S5.
^
"Und nachdem hierynn iiit all \l)cltaten so heschelu-n
( XXXI).
mchten, beschrieben vnd ausgedruckt sind, so sollen doch uit desto
207
41]
The
[Part
I,
Titli-: III
AuotluT work,
with local law, and forming the foundation of the later comprehensive imperial statute (the " Carolina "), and l)ec()ming thereby the basis of German criminal law
Bambergensis
Halsgerichtsordnung."
s, deuliuij:
"^
"...
208
Chaptkr
VII]
a code in the
modern sense
(Lr. in
41
is
to be not so
existing law.
from
much
new law
the creation of
as the presentation of
and
pensing of legislation.
with them
but legislation
in its
exist.
law
Among
Roman
It
which
was regarded
was
as the gen-
humanistic
spirit of
Roman
literature,
and
in
the
The compiling
of
by judges trained
German
legislator, as
the law.
in
we
shall
now
it
forth, ai)pears
figur
vnd reumen
the end).
209
41]
[Part
I,
TiTLE
III
be abolished }\v means of categorical prohibitions. (Here Schwarzenberg was, in his opinion, acting not so inucli the part of a legislator as that of a guardian and protector of the existing law.)
On
the other hand, where the Italian legal practice was contro-
ordnung
Italian rule
Even
self
in our
own day
has settled
jurists.^^
all difficult
questions.
Our own
tlie
But there
is
a great dif-
modern
legislator.
legislator proceeds
down
Even
where he himself did not regard the accepted opinion of the jurists
as logically correct, he did not feel himself justified in departing
therefrom. This is clearly evident from his well-known statement concerning bigamy. Schwarzenberg ^^ declared this to be
a " fast schwere strefliche missthat ", but because the " Keyserlichen Recht " (i.e. the Italian legal doctrine) " desshalb kein
todstraff setzen, so wil vns nit geziemen darauf? ein todstrafY zu
'1 This obtaining of ad\dce, in all more important eases, from those
learned in the law was in accordance with other contemporary legal
practices.
It is well known that, as early as this, advice was sought at
other courts deemed learned in the law, the so-called '"Oberhofen."
Since the 1100 s the rule came more and more to prevail that serious
offenses should be tried before the local sovereign and his court.
Cf.
Schallte, "Lehrbuch der Deutsche
Reichs- und Rechtsgescliichte " (od
ed.), 119.
^2
Schwarzenberg, 146.
210
Chapter VII]
42
^^
Cf.
Roman law
meistcr, p. 280.
1
However,
specified, e.g.
in
many
is
precisely
death by burning.
Rriinnenmeister, p. .^9.
It is incorrect to infer (as does Halschner, "System des preussischen
Strafrechts" (1858) 11, pp. 103 el seq.) that Article 14(5 of the "Bambergensis" defined the special offense of child-inunh'r in the modern sense.
At most it can be said that SchwarzenbiTg had an in(h'finit(> fecHng tliat
under some circumstances the mitigaticjn of tlie puiiishinent \v;is justifiable.
The punishments for this crime in the neighl)oring \iirnb(>rg were absolutely revolting, and for this reason there occur in the Bamb.>rgensis
It is also stati-d at the
the words "darynnen verzweyfllung zu verhten."
end of the Article that the deed is an inhuman and unchristian one. and
entailed the punishments of burying alive and impaling upon pikes if the
prevalence of the crime seemed to render special severity neci-ssary.
2
'
211
42]
[Part
I,
Title III
efforts,
where some
make more
and by
were being applied
careful definitions,
penalties
frightful
them
a general code
to the former."*
all
Comparison
shows that its punishments (which
were particularly cruel and harsh) were not adopted as a whole
various special statutes of the South of Germany.
by the Bambergensis.
Relation of the Bambergensis to the Local Law.
The manner
rendered his work far superior to the earlier " Klagspiegel " (of
which he made use) and to the " Wormser Reformation " ^ and
" Maximilianischen Halsgerichtsordnungen." ^
The im"
proved distinction of " dolus " (fraud or malice) and " culpa
the
murder.
* Brunnenmeister,
pp. 72 et seq.
^ As Brunnenmeister accurately shows, Schwarzenberg avaed himself
especially of Gandinus and Aretinus.
^ Both are made use of.
Cf. Brunnenmeister, pp. 172 et seq.
* These were not made use of by Schwarzenberg.
Cf. Brunnenmeister,
102.
p.
"From the "Bamberger Stadtrecht", which Zpfl sought to show was
one of the chief sources of the Bambergensis, the latter borrowed only
a few formulas of criminal procedure. And these were in part given up
as meaningless by the "Carolina."
Cf. Brunnenmeister, pp. 1 et seq. and
especially p. 32.
212
Chapter VII]
these
and the
[42
cor-
already had in
all
Just as the Italian legal learning seldom dealt with local rules
Art. 172.
In tlie consideration of participation in crime, in Art. 203, reference
is simply made to the Italians.
" CJ. e.g. Art. 194.
"Von lioltz stelen oder hawen."
9
10
Henke,
r/.
II,
p.
et
79.
seq.;
213
Birnbaum, "Neues
42]
later
German
[Part
I,
Title
doctrine.
III
whom
The
allowed.
-"
The
214
it
as of ser\aee to cities,
Chapter
VII]
43
it
to be sufficiently estabhshed in
le<,^al
part,
llrich
only a few changes, the Bambergensis, reproduced in the " Brandenburgische Halsgerichtsordnung ", w^as introduced into the
Frankish territories of the margravate of Brandenburg.
The "Carolina."
43.
sented
Thus
the
as the natural foundation for a general statute regulating procedure in criminal courts {i.e. " peinliche Gerichtsord-
nung
itself
")
complaints
entire
In spite of the
empire.
councils,
official
classes,
etc.
Cf.
Stnbhe,
Concerning tho
"Geschichte der deutschen Rechtsquellen", p. 241.
separate editions, cf. Rosshirt, "Neues Archiv d. Criminalrechts", IX.
The first edition, by Ildiinscn PfcijU. appp. 245 et seq.: Slobbe {ante).
pearedin BamlxTfrin l.")07. Tlu> five following edit ions (i.e. until \'yA'.^) were
An altered edition appeared again in
printed in Mainz l)y Schffer.
Bamberg in 1580 (of this a second edition in 1738). As to the later
editions, see post.
-'
CJ. Stinlzitif/,
Rechtswissenscliaft", pp. 85
ei
Lit.", p.
440;
"Geschichte der
scq.
2
^
Gterbock, p. 45.
Cf. as to the so-called " Correct orium", Ilohharh, in
215
"Neues Archiv
43]
This
draft,''
first
submitted
second
draft
Nrnberg
in
proposed
by
1524.''
third
15;5()
become
the
Titlk
hivv
nor
III
(oiincil
did
Council
was submitted
draft
to
the
at
the
Achninistrative
I,
Administrative
the
to
not
did
[Pakt
15.32,
reaching
law.
Opposition.
demand
Many
autonomy, and
upon the (extremely summary) method of
criminal justice practised by them.
On behalf of the City of
Ulm, at the Town Assembly at Esslingen, in 1523, the following
declaration was made ^ " The
Halsgerichtsordnung
tends
solely to the disadvantage of the States of the realm, and can
only be understood as encouraging and fostering all criminals."
they regarded
it
as an encroachment
'
'
is
in force there.
The
to be seen in the so-called " salstill
des Criminalrechts", 1844, pp. 233 et seq., 1845, pp. 105 et seq., 173 et seq.
Cf. also Gterbock, pp. 61 et seq.; Stintzing, I, p. 514.
^ Schwarzenberg, although a member of
the Administrative Council
("Reichsregiment"), probably took no part in the composition of the
first
draft.
This draft was in recent times accidentally re-discovered by Gterbock in the "Knigsberger Provincialarchiv." {Cf. Gterbock, pp. 85 et
seq.)
The manuscript had been brought to Knigsberg by Schwarzenberg, who in the years 1526 and 1527 resided at Knigsberg with Duke
Albrecht of Prussia. It may well be maintained that Schwarzenberg
took part in the preparation of the Nrnberg draft. Cf. Gterbock, p. 93.
^Generally referred to by the abbreviation P.G.O. {i.e. "peinliche
Gerichtsordnung") or C.C.C. {i.e. "Caroli constitutio criminalis"). As
a matter of fact, Charles V had done very little towards this legislative
work.
"Die Halsgeriehtsordnung sei niemandem mehr als den Reichsstden
zum Nachtheil erdacht und zu nichts frstndiger, als alle Uebelthter
zu harzen und zu pflanzen." Cf. Abegg in "Archiv des Criminalrechts"
(N. F. 1854), pp. 441 et seq.
^ I.e.
"Wergeid" and "Busse." Cf. the declaration of the Saxon
^
''
by Gterbock,
216
Chaptek
VII]
{i.e.
"Yet We,
Carolina:
preface to
in gracious consideration
way
to detract
assumed)
States
the
to
^^
from their
is
'"
often incor-
for
their
acceptance.'-
pro\isions
Its
tlie
of the electors,
44
oft'ered
appear,
exceptions,
is
validity.'^
But to some provisions, as
attributed the force of absolutely binding rules."
The
was
by the States
of the realm.
However,
Comparison
44.
Both
of
the
and
in
by
Bambergensis.
number
of its
the Bambergensis.
tem
of procedure.
stantive
criminal
it
is
'
to
j)rimarily a sys-
Like the Bambergensis, it treats of the sublaw incidentally, in dealing with sentences.-
e.g.
self-defense
in
is
Yet
it
is
of the
Bambergensis with
We
^
find a similar clause in the "Reichspolizeiordnungen" ("Imperial
Police Regulations").
Cf. Stohhe, II, p. ISG.
'""Doch wollen wir durch dise gn(>(lifr<' erinnerung Churfrsten. Frsten vnnd Stendon, an jron alten wolhcrgi-hrachten rechtmes.sigen vnd
l)illichen gchreuchen, nichts hciiotnincii hahcn."
" K.(/. (leih, " Lelirhuch des (h'utschcn Strafrechts", I, p. 27G.
'^ This conclusion is thoroughly confuted by Von Wchter, "Gemeines
Recht", pp. 31 et seq. Cf. also Gterbock, p. 194.
>'
C/. Stintzing, "Geschichte der deutschen Rechtswissenschaft", p.
627.
'^
Cf. Arts. 61, 104, 105, 135, 140, 204, and also Art. 218 dealing especially with abuses.
The number of Articles is different. The Bambergensis contains 27S
Articles and the Carolina contains 219.
2 Arts. 104-180.
217
44]
[Paut
I,
Title
III
The
Carolina, since
it
prevailing law,
In various aspects
may
Local law,
The
in the Bambergensis, is abandoned.
Reformation, which had now intervened, had
led to changes in only a few passages, as, for example, the absence
The omission of Article
in certain places of mention of the clergy.^
130 of the Bambergensis, dealing with heresy, was occasioned not
so much by the view that heresy was not a crime, but rather
as
it
was contained
activities of the
manner.
It
of
Publication.
The
imperial statute
was intended
in
of
this
a peculiarly
publication
was made
way
upon
all
pendencies of the empire, and particularly upon all official authoriPublication took place at the press of the Mainz printer,
ties.
Ivo Schofler, who was given a special privilege for this purpose.
In this privilege it is declared "es soll auch keynem andern gedruckten Abschiedt an eynichen ort inn oder ausserhalb gerichts
And yet not a single copy of the
oder rechts geglaubt werden."
:
'"
original
was retained
by the imperial
officials.
Presumably
the only original text was the one delivered to the printer. The
principal edition of February, 1533 (there is a dispute as to the
is not free from typographical
and there is also no lack of mistakes in the writing and
Often these mistakes are
editorial work of the original draft.
such as to make it difficult to ascertain the meaning.^ Because
of these difficulties, an edition satisfying all critical requirements
is not extant, and indeed only became possible after Giiterbock's
Cf. Stintzing,
Gferhock,
"Geschichte",
pp 260
.
I,
et seq.
^ Giiterhock,
"No faith or credit shall be given to any copy
p. 207.
printed in any other place within or ^s-ithout court or law."
217 et seq.
Later editions were prepared by Koch, Reinhold Schmid, and Zpfl.
The edition by R. Schmid also gives the text of the "Bambergensis."
The edition by Zpfl (1842) contains the "Bambergensis", the "Brandenburgica", also the draft {i.e. preliminary draft) of 1521 (Worms) and that
An
of 129 (Speier), here referred to as the first and second drafts.
edition by Zpfl in 1876 gives in a sj^noptic form the Carolina, the Bam^
Gtiterbock, pp.
'
218
Chapter
VII]
44
respect to them.
The
All of these above-mentioned attitudes were taken.
" Rechtsbuch " of Rottweil, of 154G, and the statutes of the city
Frankenhausen of 1558, merely reproduced their earlier law,
"
paying no attention to the Carolina. The new " Brandenburgica
of 1582 was a reproduction of the " Brandenburgica " of 1516,
with a few supplements referring to the Carolina. The " Landesordnung " of Henneburg of 1539 was a new compilation, consisting of specific provisions of the Carolina and a reproduction of a
" Landesordnung " of Tyrol of 1532.^
Publications of the Carolina with no additions at all were made e.g. in Electoral Cologne
of
greater
extent
in
the
for
Bavaria,
burger Stadtrecht."
^ Hnlschrter,
"Geschichte
rechts" (185.5), p. 113.
"
Cf.
des
Brandenburgisch-Preussischen
et seq.
Straf-
44]
Avliich
last
[Pakt
I,
Titlk
III
tually,
220
German
law.
Chapter VIII
GERMANY
45.
46.
THE LATE
IN
InOOs
50.
51.
52.
Domination
Relation
the
of
Changes
'
in
the.
Law
of
Proof.
53.
Carolina to the
CircumIm-
of
prisonment as a Penalty.
of
Mitigating
stances.
Rise
Theology.
of
48.
49.
1600 s
Abuses
Faculties.
47.
AND THE
Reformation.
How
sjjirit
of
is
all
Confession
Thus
Gterbock, p. 207.
221
45]
[Part
I,
TiTLE
III
The logical consequence of the Reformademanded a free and open examination of religious
gradually established.
tion, since
it
Peasants'
When
2
As to the
Cf. Luther's Works, pubKshed by Jenischer, Vol. 22, p. 85.
extent to which obedience is due to worldly authority, "Heresy can never
be prevented by force", p. 90.
^
"An den christhehen Adel deutscher Nation."
Cf. the wTiting
* Cf. also Janet, "Histoire de la philosophie morale et politique"
(2
vols., Paris, 1868), II, pp. 38 et seq.
5 Works, XII,
pp. 696 et seq.
^ Brunnemann, "Tractatus de inquisitionis processu", IX, n. 2, asserts
that it is criminall.v punishable if any one denied the truth of the Ecumenical Council. Various punishments ("exilium", "deportatio") were
inflicted by followers of the Evangelical churches, the death penalty was
inflicted by the Catholics.
Among the former the punishments were
mitigated by appeal to Novel 129 ("Hieretici quiete \aventes asperius
tractandi non sunt").
The extent of the conception of blasphemy is
evident from Damhouder, "Praxis rer. crim.", c. 60, n. 11.
Hereunder is
included, according to Damhouder : "negare Dei filium non esse verum
:
hominem."
Cf. post. Part II, under "Historj^ of the Theories of Criminal Law."
Cf. notably the well-known and repulsive history of the condemnation
and burning of Michael Servetus in 1553 at Calvin's instigation {Gaberel,
"Histoire de I'eglise de Geneve" (1855), II, pp. 226 et seq.
heresy trial
of Valentin Gentilis was prevented in Geneva,
he was in 1566 executed
^
at Berne.
222
Chapter VIII]
GERMANY
IN
THE 1500
AND 1600
40
and critical examination of the doctrine of law and State, and the
power of even the Pope himself was often substantially limited
by appeal to the " Lex natura^ ", the Reformers, in accordance
with the doctrine of Paul, " All authority is from God ", readily
regarded divine and secular law as identical. Consequently tiieir
theory of criminal law was nothing other than a complete identiIt was simply a justificafication of secular and divine justice.
tion of the " status quo ", based in one aspect upon the Bible and
in another upon motives of temporary expediency, without an
attempt to harmonize Christian love ^ and cruel penalties. '^
In this respect, on the whole, the discussions of Thomas Aquinas,
not to mention many of a later date, had been of a somewhat
higher character.
Powers of
The Literature of the 1500 s and 1600 s.
controversies.
theological
thought and action were absorbed by the
This explains why, although the Carolina made some practical
improvement in legal conditions, one cannot speak of a scientific
46.
The work
Germany during
the
lOOs.
what the Italians had written on points not covered by the Cart)The German
lina, and thus in supplementing the Carolina.^
writers did not interpret the Carolina as a code
and draw
logical conclusions
i)riniarily
from
tlic
r/.
J and, and especially the accurate proof in Gierke, "Johannes
Althusius und die Entwicklung' der naturrechtlichen Staatstheorien"
Cierke, "Das deutsche Genos(Breslau, 1880), pp. 4 et se(i., pp. 27;i, 27.")
senschaftsrecht", Vol. 111 (18S1), pp. (525 cl sc(j.
" Kirchenpostille, Predifjten l)er die EvanRelien". 4, n.
'0
(J. Luther's
"Trinitatis" (Works, edited by inoehmnnn, i, p. 41): "Der Richter
dienet Gott."
'IC/. Calvini, " Institutiones Relig. Christ.". Lil. IV. <;. 20 n. 1:
Divinis numdatis
"... Deo jubente ab auctoritate omnia fieri
;
xcisei."
common
223
40]
statute
itself.
by reference
in
tlie
[Pakt
I,
Titlf: III
nature of supple-
Roman
mentary
codification,
to the
Italian literature.
The
Italian jurists.
in Aegidius Bossius,^
of Julius Clarus.^
and above
all in
The German
had reached
its
zenith^
when
(as often)
To
reputation in Germany.
more or
less applicable
works of
all
the statement
made by Wchter,
is
in his
masterly treatise on the literature of this period anent that especially lifeless and depressing book by Ludwig Gilhausen, " Arbor
" The articles of the Carolina
he says
appear, so to speak, like great unmelted dumplings floating in a
broth concocted from the Roman Law and the Italian authorities." ^
224
Chapter
Yet
VIII]
method
4G
this
may
it
seem.
of
It
primarily from
its
own
principles.
Faculties.
It
is
also quite
which in that
period was represented not so much by the treatises and textbooks as by the " Consilia " (opinions furnished to clients),"
always looked immediately for guidance to Italian legal science;
and that the Carolina, during the period immediately following
its first publication, merely had the effect of confirming opinions
elsewhere acquired. This is seen in the works ccj. of Joh. l-'ichard,**
Recorder of Frankfort-on-Main, and the most famous legal adviser
of his times, ^ and also in the works of ^Nlynsinger.'"
The Carolina
was not intended for the really learned jurists. This explains
why, even in those States where the Carolina had been specially
promulgated, the jurists of high reputation continued to l)ase
their opinions, not on the Carolina, but on the Roman and Italian
practice,
22
47]
autliorities.
the
[Part
CaroHna
I,
Title
III
the most
for
scientific
turies.^^
Blasphemy.
Domination of Theology.
Witchcraft.
There were two enemies against whom legal science was obliged
These were the bigoted theology and the despotto defend itself.
ism of the princes. It is notable that the assistance of the power
of the princes later served to overcome theology.
The domination of theology manifested itself in many particThe most important was the atrocities of the witchcraft
ulars.
trials, by which (far more than by war or plague) many regions
during the 1500 s and 1600 s were periodically decimated.^ At
beginning, to be sure, the Church had vigorously condemned
47.
13
226
GERMANY
Chapter VIII]
IN
recognized
officially.
it
THE 1500
and IGOOs
[47
sioned to
sit
(Krmer)
in
(both
Heinrich Institor
them
of
with
the
the
use
professors
of
utmost zeal.
With the approval of the Faculty of Theology of Cologne
there was composed for these two heresy judges the so-called
" Malleus maleficarum " (" Hammer of Witches "), a formal
treatise on the belief in witches and their inquisition.
The
theology),
to
inquisition
of
witches,
especially
with
of
torture,
left
to judicial discretion.
En-
lightened men, such as Fichard,^ denounced the charges of nocturnal dances and intercourse with the Devil as products of the
But
by theology and at
soon began to throw aside the limitations
imposed by the Carolina.^ Invoking the same principle as in
other matters, it declared the Mosaic law to be a connnand unAnd so, with all
equivocally binding upon the authorities.
seriousness, the judicial trials investigated the various kinds of
Upon the whole the Protestant theolalliances with the Devil.'"
imagination.
it,'
''
Charles the Great in 785 had ratified a decree prepared by tlie Synod
bv which expression of beUef in witchcraft was forbidden.
of Paderborn,
s
^
CaroHna, 109.
"Teutsche Rathschliige",
p. 112.
227
47]
[Paut
I,
TiTLK
III
bound together
in the
many
'-
the right
and rulers to remit death sentences was successAs against " Lex divina ", that power of the
fully contested. ^^
" Princeps ", to which the Italian writers had such frequent reof the magistrates
acter the rulers even referred the matter to the clergy for their
opinion
this
s.^^
^'^
The
228
Chapter
VIII]
GERMANY
IN
THE 1500
AND 1600 s
[48
tice these
The
distinction
recognition as State
made
Consequently
they often preached absolute submission to established authority,even to a bad ruler. The established authority was to them the
direct representative of God. The maxim of Theodor Beza ^ " Rei
sed
publicie quidem interest, non modo ne quis re sua
male utatur ", laid the foundation for a
etiam se ipso
power of the State in matters pertaining to police regulation
of the empire, for the spreading of their doctrines.
sword
was
et seq.
The
"De
of poaching,
trotzen lassen."
229
49]
deemed
justifiable to punish
was
[Part
I,
Title
III
by the prince
or any
seemed jeopardized, it was con-
all
penalties.^
jNIoreover,
and the
if
condemned
it.
Constitutionum Marchicarum",
II,
Abth.
Ill,
X.
75).
As an example
is
127.
230
Chapter
GERMAXY
VIII]
IX
(49
Thus, in tiie
outrageous proceedings for treason against Crell, the Cliancellor
of Electoral Saxony, who after a ten-years' imprisonment was in
1601 brought to the scaffold, the charges were that this once
powerful counselor of the electoral prince had asserted for the
prince prerogatives which he did not possess, had aroused discord in the royal court, and had incited the prince to a hatred of
his consort.''
sufficient mischief
Even
was
on,
may
when
all
seriousness whether
ministers
indeed be laid at
without
Leyser
''
even
(i.e.
its
become high
the
itself
utmost extremity
in
threatening punishments.
no longer regarded the limitation imposed by the Carolina upon the introduction of new crimes into
the law. Blumlacher, in the preface to his commentary upon
the Carolina, makes an express statement in regard to this
" Hodie cjuilibet Princeps in territorio dicitur esse Imperator."
In 1710, by an ordinance of the Elector of Hannover, mistakes
^
'
of
Cf. Leyser,
"Sp.", 575,
n. 2,
concerning the
trial of
the unfortunate
56.
Ibid., 575,
n.
5,
Ibid., 570.
For example, the old Saxon law in respect to rape was restored, and
was punished hy new rules. Cf. IV, '.M, '.Mi.
' This unlimited power of legislation was l)ased upon the provisions of
the Peace of Westphalia.
Cf. J. U. A. 171, Verb. "Demjenigen nachgelebt werden soll, was" etc.
* The edicts against the gypsies are also notable.
They were by im*
theft
231
50]
[Part
I,
TiTLE
III
The power
Kingdom
more
serious
albeit well
It
is
meant,
easy to see
decisions.^-
how
The
against those
of the
country
just as had
and therefore also against enemies of its rulers,
been done by the possessor of the Roman sovereign power, against
^^
It
is
prising that, in certain cases, the old idea of regarding the right
232
Chapter
VIII]
GERMANY
IN
THE 1500
AND 1600 S
[51
some
instigation of
his tenants,
the
with paying to the Elector the sum of 200,000 thaler
an apj)lication of torture
had procured from von Hoym a confession but the poor tenants
oft"
ties.2
Carpzov
evil
judges of
the lower courts (and of the higher courts as well) who make a
business out of inflicting fines and are not ashamed to say in public
:
" Well,
scandalous
practice
of the Empire.'^
51.
Scantiness
of
Legislation.
Carpzov. However,
1
Cf. Helbig, "Die kurschsische Kammerprsident von Hoym", in the
periodical "Im neuen lleich" (1873), II, pp. 473 el seq.
2 No form of underhand dealing, and no violation of law or contract,
were disdained in getting their hands on anyone whose persecution was
Leijser, "Speeuluni", '2, n. 0,
desired l)y the lord or his favorites.
speaking of a trick of this kind done in the vicinity of Ilainl)urg l()4,
calls it a "dolus l)onus," and remarks "nee improbe actum."
^ "Practica", III, qu. IKi, n. 13 el seq.
Thus, a man seventy-two years of age was fined 1200 guilder on ac'
many
years
previously.
5 "Bibliothek fr poinl.
Rechtswissenschaft" (1707, Vol.
278 el seq. The Rescript of tlie Imiierial Supreme Court
mergerieht") was dated May 17th, 1793.
Sojnetimes offenders were liung merely that tlie petty
I),
(,'"
'
tuam
privilege
of
"Blood
modo
l)aii."
p. 2.
pp.
li^'ifl'^'^^^'"-
rul(>r
(\f.
might
Olilvhop,
jura jurisdictionemque
tueri desideres et
actum
Verbrechen und
that a nobleman in opi)osition to the opinion of a law faculty caused a
prisoner to bo hanged in order to demonstrate his possession of the "Blood
ban."
233
51]
of the
[Part
I,
Titmo
influ-
making criminal
the public at hirge.'' As
III
and
in
2 In the 1600 s the administration of criminal law, reflecting? the conditions of the times alternately varied V)etween barbarous severity and an
almost inconceivable leniency and a tacit immunity to the most notorious
In this respect,
criminals when they later ceased their criminal activities.
see the information gathered by Niemeycr, from the acts of the Hannoverian court of Meinersen, "Ueber Criminal verbrechen, peird Strafe
und deren Vollziehung bes. aus alter Zeit" (Lneburg, lS24j, pp. (31, 02,
104.
At the end of the 1500 s, justice was dealt out, in Meinersen and
vicinity, with severity in accordance with the Carolina.
During the period
between 1618 and 1660 grave crimes such as theft and even murder were
punished only ^\^th banishment, church penance, and money fines. On.
the other hand, little scruple was often shown in the sentence and execution of death penalties
e.g., the officials in Meinersen considered it remarkable that a messenger who was to bring three death sentences from
the Helmstdter Faculty was obliged to wait two days and brought back
only two death sentences. Often the messenger on the same day on
;
which he transmitted the record would return with the death sentence
{Niemeycr, p. 116.)
Concerning the revolting cruelty (occasionally shown in Hannover)
inflicting death by flies, wasps, ants
of. Freudentheil, "Beilageheft zum
N. Archiv des Criminalreehts", 1838. On the other hand, humorous
features were not entirely lacking.
Occasionally, for the sake of a better
admonition and education in the case of the execution of punishments,
certain of the spectators were also, \\ath the general approval of the
public, cudgeled.
Thus the officials in Meinersen, where a son had murdered his father, caused a number of grown up sons of peasants, after viewing the execution of the offender, to be themselves cudgeled.
Niemeycr,
p. 121.
^ In the mitigation
of punishments there long prevailed the influence of
the ancient legal conceptions.
E.g., even in the 1600 s the request of a
"puella" to marry the offender was recognized as a ground for not carrying out a death sentence and for commending the offender to the pardon
of the lord of the land.
In this wa3', especially in cases of adultery, death
sentences were often avoided.
Many
Cf. Carpzov, II, qu. 88, n. 25.
later WTiters, failing to recognize the original meaning of the term, limited
this rule to the request of a "meretrix" ( !) because she would thereby be
enabled to live an honorable life.
Cf. contra, Carpzov, II, qu. 88, n. 25.
Mitigation might also be given for special ability of the offender in his
art, trade, or profession {cf. Carpzov, 1. c. n. 62); the "Codex Max.
Bavaricus" felt it necessary to specially repeal this as a mitigating circumstance. The intercession of others was also regarded as a ground for
the interposition of the pardon of the ruler.
Fichard, "Teutsehe Rathsehlge", cons. 121, because of the intercession of the entire community
and because the offender was one "Ansehnlicher von Adel" (having the
appearance of nobility), changed to banishment and damages a sentence
to death by the sword.
Use was also made of the pro\'isions of the later
Roman law, in individual eases, to exempt persons of the higher rank
from punishments involving life or limb.
Thus, in 1611, an academic
Council set up the principle that a student, who had committed theft,
should be spared, since he was "angesehener Leute Kind", from undergoing the death penalty otherwise entailed by theft.
{Cf. Leyscr, "Sp.",
532, n. 15.)
The University of Leipzig in the 1600 s availed itself of a
special papal privilege whereby students of Leipzig were liable, for "homicidium", only to life imprisonment and for theft, only to banishment.
The electoral Saxon legislation felt it necessary to abolish this and especially that part referring to manslaughter, since it was contrary to
234
Chapter
VIII]
GERMANY
IN
THE 1500
and 1600 s
(51
inactivity in legislation.
The
fcjrced
legis-
points
(at
most
of
doubtful
enactment
value),
and
the
imperial
legis-
''
divine command.
Cf. Ziegler, "De juribus majestatis", Lib. I, o. .'>, n.
26, 27.
Presumably there was some connection between these privileges
Carpzov, II, qu. 02,
of the University and the old "benefit of clergy."
n. 20 et seq., was of the opinion that the benefit of clergy in Protestant
countries could no longer be recognized because of the transfer of the
jurisdiction to the civic authorities.
"Transactio" (i.e. settlement) with the party injured was also for a
Even Carpzov, II, qu. 80 n. 11 ct
long time given force in mitigation.
seq., was of the opinion that "transactio" did not exclude prosecution by
Later,
the authorities, but that it precluded the "pcena ordinaria."
"transactio" was regarded merely as a ground for mitigation of tlie
punishment by commendation to the pardon of the ruler. The view that
"transactio" does not preclude public punishment is to be found in Oldckop, II, qu. 1.
Also cf. n. 23 el seq., of the same in regard to the many
abuses resulting from "transactio."
* R.P.O. of 1577, Tit.
1, 2, Tit. 2 and 3.
* Concerning such matters,
the Imperial police regulations contained
As to this and the i)articular provisions therequite extensive provisions.
with concerned, cf. Elben, "Zur Lehre von der Waareiiflschuiig" (1S81),
pp. 52
^
et seq.
date.
''
Cf.
rechts",
especially Heffter, "Lehrbuch des gemeinen deutschen StrafE.g. "Braunschweig-Lneb. Duell-Edict" of 1087.
370.
233
51]
[Pakt
I,
Title
III
the respect for the statute and ultimately led to almost complete
liberty of discretion in penalties.
And
it
abridgment
of the
nal doctrine
native
courts,
work, in spite of the attacks of his contemporary, Oldekop,^" exer"Conclusiones practicabiles", I, qu. 20, n. 32: "Et certe in
atque poenis dictandis magis ad Ordinationem Caroli erimin. quam
ad definitionem juris civilis respiciendum est. Prccdicta enim ordinatio
This work appeared first in the years 1615-1619.
juris communi derogate
*
Berlich,
delictis
As
to Berlich,
cf.
Stintzing,
I,
p. 736.
It
shared by
many
others.
236
Chapter
VIII]
GERMANY
IN
THE 1500
AND 1600 S
[52
German
practice for
nearly a century.'^
52.
The
mere property
right,
came
To be
reminding us of the
reasoning of the old judgments of guilty with recommendation
the more these grounds for mitigation were recognized.
sure, they often strike us as very strange,
In
Pufendorf),
(workhouses)
that
sentences
now
came
("Observationes erim.
does not have Carpzov's historical significance.
u. contra Carpzovium Tractatus.")
1' In eastern Germany, Brunnemann'' s "Tractatus de inquisitionis processu" (first printed in 1648) was highly but undeservedly esteemed.
He was Professor in Frankfort and died in 1672. There is absolutely
In the crudest manner
nothing original in this bigoted Protestant jurist.
conceivable he continually confuses the functions of the judge and the
legislator; and his juristic arguments are often simply nonsensical.
yn.singer, "Oliserv."
Also
Cf. e.g. Deciantis, "Pr.", VIII, C. 14.
II, 30, infers that the judge generally has the right to change the punishment, even if a "poena certa" is fixed by the statute.
- In a judgment of the Faeultj' of Tl)ingen, a reason for mitigating
the sentence was that the father of the offender, guilty of pillaging, through
In
the punishment of liis son "would be plunged into great tribulation."
Carpzov, II, qu. 80, n. 100 are mentioned, as reasons for mitigation, the
plight of the offender's wife, and his young children still dependent, and
his promise of compensation.
'
Celle
of their parents.
However, as Damhouder renuirks, the i)eo|)le there
dreat severity of treatconfined for the most part liecame worse (n. 24).
ment alternated with an easy-going regimen of pleasant ease (card-playing,
etc.) in the "Popina."
On the other hand, Damhouder, "Praxis", 110,
237
52]
[Part
I,
Title
III
and wider imitation.'^ Sentences to " opus publicum " ' were
also imposed (for which authority could be found in the Roman
law), i.e. to the building of roads, fortresses, castles and manorhouses, to military service against the Turks, and even to labor
on the Venetian galleys. The treatment of the prisoners in these
institutions varied greatly, and the sentences of the judges were
thus indefinite in their consequences.
of foreign
On
the rasping
Originally,
for prisoners.^
In the
cases)
first
is
s,
hand
(in certain
More-
''
238
Chapteu
VIII]
GERMANY
IN
THE 1500
own
AND 1600 S
52
s,
subjects)
Change
in
Law
of Proof.
Another
field for
unlimited judicial
was the laiv of proof The Carolina '^ had provided that
a conviction was not to be based merely upon circumstantial
However, some Italian writers had advanced the
evidence.
discretion
",''
the judge
was not bound by the rules of the " judicia publica " and since
in that " cognitio " he might inflict a " poena extraordinaria ",
;
so he was also permitted, in a case where the proof was not conthis, however, was
clusive, to inflict a " poena extraordinaria "
less than the " poena ordinaria " and could not consist of a death
;
to aj)ply
by confession could be
obtained.'"
But even
this hist
as late as 1714, Leyser, "Speculum", 604 n. 3, and concerning: a Mecklenburg ease of this character in 1731, cf. n. 22 of the same.
'" As to the evils resulting from l)amshment, cf. licinhinglc, 1, c. II, c. 7.
" In Herlich, "Concl.", V, 57, n.
can be seen the more frequent use
of "carceratio" in the less serious of the graver offenses, and as early as
1617 a Wiirtemburg ordinance suhstitute(l for corporal puiiislinieiit the
punishment of "opus publicum." In Hannover, pul)lic Hogging and the
Kress, Art. 19S, 4 n. 1.
pillory were abolished in 1727.
'- From
the philosophical viewpoint attacks were made upon capital
punishment as early as Carpzov. Cf. Carpzov, "Pr." 111. qu. 101, n. 26
.">,
et seq.
^^
Cf.
131, n. 32,
Ill,
(pi.
et seq.
1^
p. FA.
'"
Cf. Bcrlich, IV, 15 n. 8, IV, 16 n. 11,
239
V, 46;
11(>.
53]
[Paut
I,
TiTLK HI
limitation
the judge
of
proof,
i.e.
sentenced
was
a confession, or the
he
the
or
offender
to
testimony of eye-witnesses,
" extraordinary "
punishment,
"suspicion" punishment ("VerdachtThis measure was used in cases where, though the
strafe ").^^
commission ^^ of the act was proven, some one of the elements
of the crime was not proven legally or even proven in any
sense, e.g. the live birth of a new-born child said to have been
as
it
killed
by
later
called,
its mother.^*^
53.
In the case just considered, an act was punished which the statute
did not in any way make amenable to punishment.
But, further-
ishment
pitch
bach
And
although Leyser
in
who
decide
views as to the propriety of the statute for the case under consideration, yet, when he comes to other cases, he proceeds in the same
manner as those whom he censures,-^ or else he concedes the authoris
C/. "Codex Maxim. Bavaric Crim." I, C. 12, 11.
In Electoral
Saxony the "Verdachtstrafe" had obtained statutory recognition at an
early date.
its
6,
D.
2
3
"Speculum", 537
n. 22.
Cf. Halschner, p. 163.
2-40
Chapter
VIII]
GERMANY
IN
[53
''
Consequently there is nothing surprising in a judgment renin 1721 by the Faculty of Helmstadt with Leyser's approval.
A man charged with manslaughter pleaded self-defense, and the
case involved considerable doubt because the records of the prothe
ceedings were in another State and could not be obtained
decision was that " in order to protect the community from this
dered
dangerous individual
",
he should be confined
in a penitentiary
Nor
are
we
rest
torture
Where the power of the judiciary was so absolute, partialit,\was sometimes shown in the judgments. Often persons of higher
" Meditationes in C.C.C", Art. 105 .3.
As to increasing the penalty,
"De juribus majestatis" (1681), I, c. 6, n. 13.
* Berlich, IV, 15, n. 0, was, however, of a different opinion in regard
In accordance witli the common hiw he would
to "prena arbitraria."
According to ('lunts,
recognize only "pcxMia pecuniaria" and ])anishment.
fin., qu. 83, n. 11, a "poena arbitraria" should at least never amount
*
see Ziegler,
to capital punishment.
Such decisions may be seen in Berlich, IV, 3G, n. 30.
A prison guard
who had got with child an imprisoned maid-servant and lied with her
after she had destroyed her child, was without hesitation sentenced to
death by the sword; and the same sentence was impttsed on the girl.
The "apponere scalas ad fenestras" was undi-r certain circiunstances
Improprieties were punished under
to be punished with d<"ath, IV, n. 20.
Thus,
the title of "Stellionatus" (Carpzor, III. qu. 133. n. 2, d seq.).
1()95, the Faculty at Tbingen unliesitatiiigly puuisiied a man for mere
Lcifscr, "SpecuIlarpprcrht, "Consil." 47.
failure to keej) jjromise.
lum", 581, n. 8. considers th(> death penalty as legally justifiable against
one who seduced the daughter of his master.
211
53]
[Paut
I,
TiTLK
III
of
another case they regarded the death penalty as not unreasonable, because
they did not perceive "how the young offender, who had neither father
or mother, could have been saved from complete ruin of body and soul."
Harpprecht, "Consilia", I, 100.
242
Chapter IX
GERMANY
54.
THE
IN
56.
of
the Witeheraft
Trials.
Doctrine of the
Law of Nature. Progressive Jurists
Kress and
54.
57.
58.
59.
Beginnings of a Change.
craft Trials.
1700
Code
The
1751.
55.
the
of
Bavarian
s.
of
Austrian
Theresiana
Legislation
The
sion
Boehmer.
1700 s
of
1769.
The Statutes of Frederick II of Prussia.
The Austrian Code of Joseph
II of 1787.
The Prussian Landrecht of
1794.
The Austrian Code of 1803.
Gradual Suppression
of
Witch-
"Cautio eriminalis
s.
first
puhlishod in
1631.
"Vom
"Casus si
practice came
'
("Speculum", 608).
243
54]
by the middle
of the
700
s,
treated
tlie
[Part
I,
Title III
entire proposition as a
dehision.^
throuf^li
from
Emancipation
too
Thomasius
little
numerous minor writings. The separation by the legal philosophers of the Mosaic law into two parts, of which one was of universal obligation and the other of special application only to the
Jewish peoples, was now also recognized by the writers on criminal
law, in the sense that they referred the penal provisions to the
category last mentioned and held that for the present times they
had no
application.
The
finally
made
famous book,
of
and
also for unchastity, so far as the latter did not also constitute
"Meditationes in
Constitutionem
Criminalem Carolinam"
(first
Mosaic Law.
^ As
opposed
"De
244
GERMANY
Chapter IX]
THE 1700 S
IN
its
morahty and
basis in
is
[^
TA
also that
sequence of the
nature was
rise of
now taken
Law
of Nature.
Furthermore,
the doctrine of a
into consideration.
as a con-
if
The
doctrine arose
he should
full
IMatthneus,'*^
of the Pandects,
in
his
Com-
native
Friedr.
spirit,
latter
of
German
Cf.
e.g.
inalem Caroli
Kress,
V"
stndigkeiten, turpitudines."
8 Conf.erning
these theories, wliich hiter were lield parlicularly ly
Kleinschrod and Klein, and which were undisputedly the dominant
theories at the end of the 1700 s, rf. Fcncrhach, "Revision der (iruiuistze des peinlichen Rechts", I, pp. 274. et .scr/.. pp. 278, 270.
" This is to-day frequently overlooked.
'" "De criminibus", first published in 1()44.
"Commentatio, etc."
see note 7, anlc.
'2 " Meditationes, etc."
see note 4, ante.
;
245
551
[Part
The
I,
Title III
difference be-
tween these writers and Carpzov and the Italians is clearly apparThe position of Carpzov as an authority was completely
ent.
destroyed by Boehmer's " Observationem zu Carpzov's Practica."'^
The Commentary form of exposition,
55. The Universities.
hitherto emi)loye(l,
now
fell
into disuse
among
In the
first half of
the 1700
s,
The Early
Treatises.
The
first
law did not indeed possess any special scientific value. Of these
the one by Engau, " Elementa juris criminalis Germanico-Carolini ", appearing first in 1738,^ had perhaps the widest circulation.
But the formulation of an independent system always sooner or
later leads to an attempt to establish general fundamental principles under which the individual elements may be classified, and
induces a deeper investigation of the subject-matter of the law.
The arrangement of a so-called " general portion " in the early
" compendi ", although rather meagre, must in criminal law more
than in any other legal study have been an important help and
inspiration.
But the
interest aroused
was too
little
It inquired rather,
be.
J.
'
cf.
Cf.
Henke,
'
As
to other
Henke,
II,
II,
pp. 166,
.306.
compendiums by Grtner
p.
306;
1755).
246
GERMANY
Chapter IX]
IX
THE 1700
[55
parum saHs
"
magnam
in autore
period.
The
writer's
tations
by the essay
of Globig
The beginning
and Huster, on
must bear
of its law.
'.i
247
5]
[Part
I,
Titlk III
be punished, either by permanent banishment or by imprisonrations, until such time as they acknowledged
and abandoned their errors. Those wdio zealously spread heretical doctrines, or misled others, or incited them against the
authorities, such seducers of the faithful were to be executed with
ment on scanty
command
of a ruler
e.g.
is
s,
'I, 1,
retained.
I,
8.
12
pro-
still
of the
' Both
deal also with criminal procedure.
"Strafgesetzgebung", pp. 8, etc.
2 Cf. the provisions as to
attempt, I, 12 3
Abetment,
The
In several provisions
Cf.
;
especially
Instigation,
I,
Berner,
12
5.
Branding
with,
c. 11, 1.
Persons who had been banished from the country were
threatened with death in case they returned. They were to be executed
248
GERMANY
Chapter IX]
is
IN
THE 1700 s
The
(56
Austrian
of
"general part."
E\ery\vhere
to do injustice to none
punishment.
of penalties
is
of the separate
have
it)
crown
territories
but this
''
is
Code renounces
always in
effect),
a theological basis
(in
The
though not
punishment to be:
principle,
of
of the masses.
civil
In
its
treatment of j)unish-
and
at the
same time
tried to
make them
suitai)lc to
the
The use
of the pillory as a
249
56]
[Part
T,
Title
III
still
penalties even
of the
now
ancient Carolina
Great had been to abolish torture completely.^^ In 1744, banishment was superseded by imprisonment in a fortress or peniThe punishment of infamy was also substantially
tentiary.
limited, in 1756, " because the offender who is subjected to infamy
becomes a useless member of society, and if he obtains his release
from the prison or workhouse, he finds himself without means to
earn his bread in an honorable way."
1743.
was abolished
' I,
II,
73.
10;
II, 104.
250
is
the burn-
GERMANY
Chapter IX]
IN
THE 1700
[57
king gave consi(leral)le attention to the prevention of child murder (a problem much discussed in the 1700 s). Here, however,
he was only acting in accordance with the spirit of the times, i.e.
the ideal of the absolute State, j)()licing morals and seeking by
severe penalties to check conduct which is contrary to the general
now seem
that
is
fritters itself
By
to us extraordinary.'-
away
in a
by coercive
mass
a rescript of
of details
December
the courts.
in a personal encounter
felt
was restored;
for the
and
of
Joseph
II of 1787.
The
abolition
and
in (lallcia
little
'.\,
the age.
The
legislator,
cient seriousness.
It
was
suffi-
desi)otism
and
in
251
57]
[Part
I,
Titlk
III
'
Its
System
of
Punishments.
In
by
no
special authority of
(except those of
some) of abolishing ^ all capital punishments
In its treatment of punishments involving permanent or temporary loss of status and honorary rights,^ anrl in
'^
martial law).
Code
aim was bound to
its
minded
among
idealism.
But
this
more out
life.
x\nd indeed
exliibits a high-
shipwreck
seemed all the
suffer
it
still
retained,
Part
I,
1.
Part
II,
3.
13.
I, 2,
As a matter
Joseph II favored the harshest theory of depunishment was aboHshed by him in this spirit only,
and not (as in Tuscany) in the spirit of the reformatory theory. As to
this, cf. Wahlberg in Grnhufs "Zeitschrift", VIII, pp. 274 et seq.
^ I, 2,
It is an e^^dence of the lofty sentiments of -loseph II
20.
that offenses of "lese majeste" were to be mildly punished, and that
there should be no death penalty for high treason directed against the
person of the sovereign. Cf. Wahlberg in Grnhufs "Zeitschrift", VII,
^
terrence
of fact,
capital
tion.
8 According to I,
184, the offender, after undergoing his sentence or
receiving pardon, was to be deemed completely rehabilitated, and no
prejudice thereafter was incurred by him.
"
As to the punishment of the galleys in Hungary, in cases of condemnation to severe imprisonment and public labor, cf. " Oesterreich.
Criminalgerichtsordn." of 1787, 188.
Hess, "Durchflge durch Deutschland, die Niederlande," etc. (Hamburg, 1800), Vol. 7, p. 117, says: "A
Danube vessel towed by human beings is so repulsive a spectacle that
even an executioner who has become familiar ^ith breaking upon the
wheel will turn his eyes away." Henrici, "Ueber die Unzulnglichkeit
eines einfachen Strafrechtsprincips", pp. 94, 95.
252
GERMANY
Chapter IX]
IX
THE 1700 S
it
made
[57
liberal use of the
branding-iron.*
modes
The
F'or example, the punishment of " imprisonin chains " consisted in chaining the criminal in a dungeon
have approved.^
ment
so
clo.seIy
movements
of his
body
application.
its
generally
not really exist ^^ the legislator did not punish heretics as such,
but he still exhibited his fear of their influence as disturbers of
the traditional social order.^^ Withal, the common law conceptions of crime were in the Code warped beyond recognitit)n and
;
Sometimes
that
' A piece of perverted refinement, which could mostly hurt only the
family of the convict, was that the income of his property was confiscated
during the period he was undergoing .sentence.
'- II, 61.
' I,
" I, 2, 27.
2, 2.5.
As to this, c/. especially Wahlbcrg in Griinhul's "Zeitschrift". VI II.
''
253
8]
])r()a(kMi('(]
into vajijucness
questions
{e.g.
TiTLE HI
most
Apart from the more
falsification and fraud)
the relationship of
I,
[Part
made
to include flefamation,
damage
to
were classed among the so-called " political offenses ", along
with incendiary negligence and unlawful disguising.^' More
attention was paid by the legislator to external incidents in the
manner of commission of the act than to the relations of rights
by the
act.^
social
As a
interests
and well-established
common and espe-
15
'"
Title 20 of Part 2.
254
GERMANY
Chapter IX]
THE 1700
IN
by the courts
[58
''
'
^
906 merits special mention: "Any
Cf. especially 888-932.
person to whom an unmarried pregnant woman communicates her secret
must not reveal the same, under pain of discretionary but substantial
penalties ( 34, 35) as long as there is no reason to anticipate an actual
"It is also incumbent even upon persons
crime by the woman."
929:
who do not occupy a special relation to said woman, if she has communicated to them her pregnancy or has confessed, to admonish her to observe
the statutory provisions (901 el seq.).'"
^ Cf. e.g.
1308, 1309: "Anyone who with a view to his own profit
shall by means of slander promote discord among near relations or married
couples shall suffer a substantial fine or corporal penalty proportionate to
"Anyone who
the malicious intent and the harm resulting therefrom."
promotes this discord with a view to deprive the natural heirs of their
inheritance or legacies and to direct such to himself or others, shall be
punished as a swindler."
"No one shall commit against or in
933:
the presence of a person, whose pregnancy is evident or known to him.
acts which are likely to arouse violent emotions." (!)
^ According to 93, anyone guilty of high treason was to be executed,
with the most severe and horrible punishments of life and limb, proportionate to his evil intention and the injury contemplated.
95 says
"Persons guiltj^ of high treason shall not only forfeit all property and
civic honors, but also transmit the burden of their calamity to their
children ( !), if the State with a view to avoiding future danger shall find
it necessary to banish them or to place them in permanent confinement
(!)."
In 109 death by burning is imposed for the betrayal of one's
country.
^
"Anyone, who by impudent and insulting criticism or ridicule
151
of the laws and ordinances in a State shall arouse dissatisfaction and
restlessness of the citizens against their sovereign, incurs a penalty of
imprisonment in a fortress or jail of from six mouths to two years duration."
Cf. also the perverse provision of 1.57 for the punishment of injury
"Anyone who knowingly enters
inflicted in self-defense; and 119:
into relations whereby the State in any manner whatsoever cmiUl ( !)
become involved in external insecurity or dangerous complications,
:
although he
is
comes
than
servant or
workman
cf.
to
to foreigners secrets of
six
255
5S]
[Pakt
Title
I,
111
The
legislator
{ip])ears
and the petty police of the house and the hunt (on such
rebellion
matters as those contained in 738 ^ and 741 ") is given precedence over the punishment of assaults and homicides. Naturally
enough, a code so characterized by its attention to moral police;
manship introduced
was
oft'set
bj'
the offender's
without reason). ^^
In contrast with these cardinal defects, the Code possessed
It dealt with the principle of responsicertain features of merit.
bility in a more systematic and correct manner than any of the
other codes already mentioned.^*
religion
was as a
rule
more
Its
58
et seq.
256
GERMANY
Chapter IX]
IN
THE 1700
[59
accurately.^
equipment
of the
justly criticized.
Thus
it
its
fair success
Law
with
for in the
in the daily
its
own
special
logical
consequences.^^
It did,
^'^
1" In this respect, indeed, there are some unfortunate deviations from
the common law.
Cf. 1110, 1366, concerning "furtum usus", poaching ( 114.5) which is treated as theft (sometimes even more severely),
forgery ( 1378, 1380).
^^ An example of such a perversion of definitions of offenses may be
seen in 1495: "Upon those who injure the country, who harm many
citizens or the public at large, or place them in jeopardy, shall in everjcase be imposed a penalty of several years' imprisonment in a fortress."
1* The literature of the Prussian criminal law was in substance a mere
collection of the statutes.
Klein, in the preface to his book, "(Irundstze
des gemeinen deutschen und preussisehen peinlichen Rechts" (1796.
2d ed. 1799), regarded as a part of the Prussian law tlie general maxims
of the common law
and this was also frequently maintained bj' the best
Prussian jurists.
1
Cf. llerhal, "Handbuch des allgemeinen sterr. Strafrechts", 1, (6th
edition, 1878), pp. 9, 10.
Also Wahlbcrg, in Cninhiil'.^ "Zeilschrift",
VIII, pp. 283 et seq., especially in regard to the opposition of Sonnenfels
and Froidevo, to tlie reactionary principles.
- In
1797, a draft of the Code had already gone into effect in West
Galicia.
Tlie Code applied to all the provinces of the Austrian crown,
with the exception of Hungary, the district of Hermanstdt, and the
military frontier.
;
257
59]
III
this
Code the
deatli penalty
was
[Paut
rotaiiicd for a
I,
TiTLE
III
few crimes
of
although the
spirit of
In the penalties
Even
clearly
prevailed.''
i.e.
of the
modern
The
codifications.
" General Part " (as Berner correctly points out)
German
was
also the
ing in death."
258
Chapter
1500 s
General Features
Lack
of a Criminal Code.
Discretionary
Character
of the Penal System.
;
X
TO THE REVOLUTION
59c.
Crimes:
General
Notions
and
59d.
59t'.
Classification.
Penalties in Use.
The Several
their
Crimes
Punishments.
and
By
is
the IGOO
s,
1700
s,
under Louis
XIV and
his successors,
royal
In
the
absolutism
height.
And though the seigniorial jurisdictions still
and the royal jurisdiction is divided into the two classes
of ordinary and extraordinary jurisdiction, yet the law both of
crimes and of criminal procedure was substantially the same in
reaches
its
survive,
all
Amidst
accompany-
its
thor-
259
5<.)aJ
The
('xhil)itiiifj;
[Part
I,
Title III
new royal
fills
the
first half of
the
The reason
for this
notable fact
la}'
perhaps chiefly
The
in
the
great in\'en-
", therefore,
there was a wider range of variation than there would have been
under the
strict letter of
authority of the
The
official
a criminal code
specific penalty,
to Charles V's
German
code.
Principles in France.
in
s.
in that epoch. ^
But the
3 [The
subject of French civil procedure is treated in Engelmanns
"History of Continental Civil Procedure," translated by Millar, being
Vol. VII of the present Series.
Ed.]
* [The work of Colbert is described in Vol.
II of the present Series,
"Great Jurists of the World."
Ed.]
6 [For the history of the public prosecutor, see Esmein's "History of
Continental Criminal Procedure," being Vol. V of the present Series.
Ed.]
[These jurists, and their work in making France the center of
260
Romau
59a
in tiie fields
The
of the jurists.
cile these
two bodies
of legal principles.
The
private law
Roman elements
varying
in dift'erent regions.
The
substantive law.
contained
all
The
fruitless
law study, are described in Vol. I of tho present Series. "A General Survey of Events, Sources, Persons, and Movements in Continental Legal
History." Alciat and Cujas are the subjects of special studies in Vol. II
Ed.]
of the Series, "Great Jurists of the World."
' [For the rise of criminal h'^^al science in Italy, see Calisse's "History
Ed.]
of Italian Law," being Vol. VI 11 of tlie present Series.
21
Dfc]
[Paut
I,
TiTLE IT!
need he noted Jean Duret's " Traicte des peines et des amendes ",
of 1453, which shows the main outhnes as they persisted until
:
the
1800
ciaire ",
judi-
1762;
is the
Discretionary
Character of the
Penal
System.
The
came
While the
latter,
even as to matters of
and
precision,
of
law.
Positive
'
[I.e.
See ante,
came
262
Chapter X]
should
weh
as
undertake to determine
TO THE REVOLUTION
[ .596
This tendency
and
of serious ones
is
marks out
certain limits
in its relation to
|t
the
of the State),
may
in nowise transcend.
By
a step of
t^iis sort,
Such a system
its
own
of legislation the
we may
absolutism.
much
monarchy
to the rights of
subjects.
and the
official
prosecutor
alone had the power to declare what was crime, and to say what
own
came
case.
according to
'discretion,
its
and
individual discretion.
this
alone,
The
rise to
263
and
596]
[Part
I,
Title III
upon
Writing
in
"In
this
And, in a note
to the same passage, Automne concedes that " where a punishment is discretionary, and is left to be determined officio judicis,'
the judge has power to sentence the offender to death ", as, indeed,
had been recognized by a Decree ^ of 1545. Only new punishments
the judge is not allowed to invent or apply
he is restricted
This fearful power is still unabated in
to those already in use.
the 1700 s. We find Jousse using the identical words of Imbert
" In this kingdom, all punishments are discretionary." Criminal
law is really nothing else than the unfettered will of the judges.
Nowhere than in this field is more manifest the final and decisive
triumph of the royal magistracy over the old law
here these
agents of the monarchy reach the zenith of their dominion over
public and private right.
Moreover, this state of things moulds all legal thought in penal
matters.
Because of the legislative authority of the judges and
kingdom,
all
'
"*
Any
in
reality
enactments, at
tion.
is
scarcely
prosecutor and the judgment of the court. /^No doubt the legal
profession thereby acquired an influence
other hand, the same causes degraded the criminal law and
it
in
but, on the
made
So much
task
now
divides into
two branches.
The
first
is
Our
to ascertain
Transl.]
^ [For the nomenclature of French royal legislation, see Vol.
I of the
present series, "A General Survey of Events, Sources, Persons, and
Movements in Continental Legal History," p. 249.
Traxsl.)
* "Traite de la justice criminelle de France," Pt. I, Tit. I, p. 4.
264
Chapter X]
TO THE REVOLUTION
59c
From
lation.
tant
and
in dealing with
it,
we
first is
ment
59c.
Crime
General
l)olice offenses
became
Any
clear-cut notion
Crime was anyand anything that could be made the subject of punishment
thing could be made the subject of punishment that the judge
regarded as punishable. This feature appears to have been most
pronounced in the 1500 s
a time when the disturbed condition
of the public peace both necessitated and excused resolute encroachments on the part of the judiciary. Thus Duret classes
of crime
of the question.
as punishable offenses such matters as the giving of " false directions as to the
way
",^
Ibid., p. 97 b.
* Ibid., pp. 124, 125.
Ibid., pp. 56-58.
1
Crime
25
rA)c\
to he noted, were
galleys.
iJiiiiislied iiDcler
Henry
II,
[PAUT
I,
TlTLK HI
by consif^nment
to the
was
and every
death penalty.
was the Criminal Ordinance
of 1G70.
By introducing a definite order and scale of punishments,
it came to supply the division of crimes according to their penal
consequences, and thus to pave the w-ay for systematization of
the criminal law, with the attendant limitation of the arbitrary
The
first
inflict tlie
powers of the courts. After its enactment, we begin to see attempts at classification. These, however, are wholly destitute
of scientific value, being in part purely arbitrary, in part merely
practical.
Jousse has " eight ways of considering crime." ^ Of
his arrangement we need only mention two features.
One is the
division of offenses into public and private, atrocious, aggravated (" qualifies "), minor (" legers "), capital, and non-capiThe other is the distribution of offenses committed by
tal.^
ecclesiastical persons, under the three heads of common offenses
(" delits communs "), privileged offenses (or cases), and purely
ecclesiastical offenses.
Common offenses were those over which
the secular courts had exclusive jurisdiction
(or cases) those over
exercised jurisdiction in
common
privileged offenses
ecclesiastical tribunals
but whose punishment rested solely with the secular courts. The
third class, purely ecclesiastical offenses, concerned only the
ecclesiastical courts.
But
regarded.
general.
^'^
^
^
Duret, op.
Loc. cit.
pp.
cit.,
12.5,
126.
^ "How then", asks Lange (op. cit., p. 3) can we support the distinction
between capital and non-capital crimes, when "all punishments are discretionary in this kingdom?"
"To be sure", he continues, "there is not
a certain determinate punishment for everj^ species of crime", but the
266
Chapter X]
TO THE REVOLUTION
o9c
the "
" of punishment.
quantum
had invaded
tion,^'
he
this field
dol et fraude
('
punishment
is
How Roman
tells
cious intent
is
is
In his introduc-
')
law conceptions
",
and that
impulse (" impetuosite "), the manner of the harm (" coustume
de mal "), and the circumstances in general. The judge will
weigh the criminal facts (" qualitez ") on every hand, and there-
may
'-
or
his
'^
Out
system
of these disjointed
" Con-
in his chapter
we
find here
is
in truth
much
What
stances."
On
'^
a whole Title to
and
is
neither the
this,
tion
name nor
we take
is
it,
And
rule
case
all
is
answered
itself.
It
267
aOf/l
[Paut
I,
Title
III
with that inflicted on the actual doer of the criminal act. In this
regard, especially, Farinacius dominated the views of jurists in
the 1700
and comfort.
More
exact determination
case.
is left
finally, in
of one
body
it is
INIeagre as
in
See Imhert, ut siip., and also Jousse, ".Justice criminelle", I, in, p. 41.
Although Duret follows his preface with the outlines of a scheme of
punishment, he does not furnish any description of the punishments
themselves.
Imhert (Book 111, c. XXI) speaks of some punishments, but
without any intention of treating the subject exhaustively.
^
268
Chapter X]
men
for
felt
59d
satisfaction;
1700
s,
fixed.
(B)
(o)
And
further:
Consignment to the
galleys for
life.
The punishment
of
the galleys must have come into use in France at the beginning
The
s,
earliest
The
present Series.
Transl.]
^ "Justice criminelle", Pt. I, Tit.
Ill, with which the same author's
notes on the Criminal Ordinance may be profitably compared.
^ Op. cit., p. 42 et seq.
^ The headman's block took the place of the gallows in the case of
persons of noble birth.
' [A popular account ascribes the first emplojTnent of convict rowers
in France to the 1400 s, wiien .Jacques Canir. the rich mercliant of Bourges,
put into service four galleys thus manned. Galley labor as an official
institution is said to date from the seizure of these four vessels by Cliarles
Quautcr, "Deutsches
VII.
AUwij, "Les bagnes", pp. 2, 3 (Paris, 184.^)
Tran.sl.]
Zuchthaus und Gefngniswesen", p. 150 (Leipzig).
*"Recueil general des anciennes lois fran(.'aises", XIll, p. 70. It
speaks only incidentally of convicts ("formats") and galleys.
This account does
''"Repertoire de .Jurisprudence", s.v. "Galeres."
not refer to the Ordinance of 1548.
;
2G9
5y(/]
put to death.
ment
for
life.
[Part
Of
is
I,
Titli; III
fit
for labor
by which convicts
re-
leased from the galleys are forbidden to return to Paris under pain
P\)r women, life-imprisonment, or whipbanishment
for life, takes the place of the galleys.^*^
ping followed by
This punishment (as also banishment
{b) Banishment for life.
present
period) is derived from the old law.
during
the
in general
from a designated part of the
may
either
banishment
be
The
.("
"),
from the kingdom at large.
hors
ressort
or
else
du
country
whether
there
could
be a banishment from
much
disputed
was
It
the kingdom for a term of years/^ and whether banishment for
^^
life from a given locality could be classed as a capital punishment.
of
renewed
galley-.service.
(c)
In the case of extremely serious offenses, criminal proceedbe brought against the dead}^ Two punishments here
may
ings
namely
dragging the corpse on a hurdle
and judicial condemnation of the decedent's
memory.^* These are important on account of their consequences.
Every capital punishment brings with it confiscation of the
offender's property; pronounced against the living, it brings also
come
in
question,
civic death.
Confiscation (as it passed from the old law into the regional
Customs, and thence into the newer criminal law) is in principle
simply the reversion of the estate to the feudal superior, whose
grant is regarded as revoked by the sentence of capital punishment. It therefore requires no special judgment, but follows
10
Their
work.
first
mention appears
et seq.)
270
Chapter X]
TO THE REVOLUTION
9d
The
situation
is
clearly expressed
fiefs,
which, in
itself,
But
how
came to exist.
was in nowise a general consequence of every
punishment throughout France. For one thing, it was by
enables us to perceive
confiscation
capital
many
jeste."
And,
finally, in
attempts to make
These were
it
the regions
Soon, however,
all.
fos-
of
procedure.
The
As
fine.
we
early as 1588,
^"
By
the Ordi-
is
"Qui eonfisque
'
'8
Art. 45.
" Jousse,
op.
cit.,
p. 100.
271
5!W1
[Part
I,
TiTLE
III
or take
by gift,
possible.^^
Xo
ment
mention of
;
it
this penal
consequence
permitted,
civil
is
and
took
its
effective (without
is
When
else-
confiscation
[One was said to have lost the "respons en cour", "when he has
a court of justice or is no longer entitled to act
as surety."
Ragueau and Lnuriere, "Glossaire du droit fran^ois", s.v.
"Respons" (Niort, 1882).
Transl.]
22
[Otherwise "metalli eoercitio" or "damnatio ad metalla"
condemnation to hard labor in the mines ("Digesto Italiano", XVIII I, p.
This under the Empire "was regarded as the heaviest punish1442).
ment after that of death, and, as in the case of the latter, was preceded
by scourging. It carried with, it the loss of Uberty and necessarily of
property and other rights."
{Mommsen, "Rmisches Strafrecht", pp.
"Damnatio ad opus metalli" was a distinct punishment of a
949, 950.)
somewhat milder character. {Ibid., p. 951.)
Traxsl.]
Guyot, "Repertoire", s.v. "Mort civile."
2* Jousse, "Justice criminelle",
pp. 85 et seq.
25 Numerous controversies, tending in effect
to a mitigation of these
rules, are here mentioned by Jousse.
21
"^^
272
Chapter X]
TO THE REVOLUTION
59d
punishment does not clearly appear. The earhest Ordiwhich it is mentioned, couples it with transportation.-^
All persons sentenced to banishment from the kingdom and to
capital
nance,
civil
in
confinement.
To punishments
tive "
^^
is
of the second
(a)
The
applied.
afflictive
second
and
Maiming punishments
and third
class
corporal.
slitting
classes the
It includes
piercing
or
;
the tongue
cutting or burning
-^
off
the hand.
(b)
branding
(scarcely
flogging (generally
ment
for a
term of years)
^^
and the
pillory (these
'
By what
"
273
r/Jd]
also
bc'iiis
[Part
TiTLE
I,
III
other punishments).
In the third class (according to Jousse), that of non-corporal
afflictive
punishments.
of " amende honorable " deserves special notice.
from the 1100s: the "Etablissements de Normandie"
mention it in connection with parricide and infanticide it lasts
As treated by Imbert, it is of but one sort,
until the Revolution.
and is pronounced " in case of an offense against the honor and
authority of God, of the King, of the public weal (* chose publique '), or of a private person." ^Subsequently,'''^ it is imposed
in cases of " public scandal ", and appears in two forms
simple
or dry (" simple ou seche ") and " in figuris."
Simple " amende
The punishment
It dates
honorable "
of
Council,
requires
where,
kneeling and
" in the
by
his
Chamber
he craves
act."
This,
therefore,
is
and
is,
in essence,
to secure
^^
II, p. 64.
274
Chapter X]
TO THE REVOLUTION
[ 59(f
With the
are included
really the
punishment itself.
") punishments
Compelling the offender to wear a sort of foolscap,^ and conveying him in this ignominious headdress through the streets ^^
;
public exposition on a
scaft'old or
mand
in their possession.
is
in this period.
'^
'''
Imberf, loc.
Jousse, op.
cit.
cit.,
p. 66.
r/M]
[I'akt
left to its
I,
Title
III
exclusive domi-
Even the
Custumals as
still
reco^mize
it
it
as
and
and
mentioned
class
had
its
^^
which
last-
'^^
^*
fines
^'
276
Chapter X]
TO the revolution
[ 9(i
in its dealings
Infamy, as has been said, was an essential feature of the foregoing punishments. The notion of infamy is plainly taken from
the
Roman
law,
distinction
is
What
'
ment,
is
bound
to
Hence,
fail.
in
imprisonment was
in
" career
^^
The
'
Lib.
XLVllI,
Dc
poMiis."
277
59e]
[Part
I,
Title
III
inflicted by
Only individual exceptions appear
the most
im{)ortant are the commutation of the punishment of death
or that of the galleys into that of imprisonment for life, and
the recognition of imprisonment (" reclusion ") in a penitentiary
establishment (" maison de force ") in the case of women and
minors. These, too, are the only instances in which imprisonment
has infamy as a consequence. But a true system of punishment,
based upon deprivation of liberty, did not exist.''*'
From among the punishments above enumerated the public
the
jud<]jes."
prosecutor
made
when
cumstances,
these
are
all
hensiveness.
volume and precision which cannot even approximately be here reproduced.^ All that we can do is to lay before
subject attained a
278
Chapter X]
the
reader
brief
TO THE REVOLUTION
characterization
the
of
several
59e
crimes,
classification
does not appear before the end of the 1700 s (when, indeed, it
still falls short of being a general one), so that even Jousse follows the old plan of Duret and enumerates the
difl'erent
crimes
alphabetically.
braces
all
offenses (whether
by way
it
is
ordinarily
death all accomplices are to receive the same sentence.Heresy comprises a whole group of offenses which find separate
treatment. Among these are the assembling for sectarian worships the practice of baptismal rites by persons other than priests
every adoption or acceptance of the " pretended reformed " religion
every relapse to that religion the lending of aid or coun;
tenance to Protestants in their beliefs as well as failure to conform to the marriage observances of the Catholic Church. So,
too, it was heresy for Protestants to emigrate from the Kingdom.
By the Edicts of 31 May, 1685, and 13 September, 1699, such
emigrants, together with all who aided in their attempt to escape,
;
life.
Other instances
of
later, it was varied " according to the character of the heresy and
the accompanying circumstances," although for this there was
series
of legislative
enactments
*.
Our references
TTI, p. 212 to Vol. TV, p. 322.
be chiefly to this writer, inasmuch as lie is the best known.
279
r)9e]
[Part
I,
Title
III
and
witchcraft and
beHef in
sacrilef?e.
In the
that,
sorcerers or soothsayers ", the practices of such persons are nevertheless the subject of punishment, " either because of their impiety
harm that they work to others." ^ The punishment for this crime varied from burning at the stake to flogging/
Simony is the buying or selling of " things spiritual." (xrouped
or because of the
" confidence
is
",
which
exists
make over
man
nances are of
many
whenever there
The
is
different sorts.
The
God,
by the Ordi-
insult offered to
penalties prescribed
upshot, however,
is
that
'
''
'
280
Chapter X]
an extent that
59e
of his tongue.^^
])unishment.
will feel
law.^'-
is
became
went.
this
head
all
it
under-
evil-intentioned deeds
The
is taken between
and in the second degrees,
which is substantially that between " lese majeste " proper
and high treason. Temporal " lese majeste " in the first degree
embraces every attempt upon the person of the Prince, his children, or those in the line of succession to his throne, and every
attack upon the State whether by overt act or by secret " leagues
or associations." This offense is " one of the most atrocious that
distinction
first
damage
fere
to the public weal ", or " the King's authority", " inter-
281
Thus,
r)9e]
I,
all officiiildoin is
the same
[Part
any member
Title
crimes
all
of
it
common
share
character.
Specifically these crimes are
" Lese majeste " proper; that is to say, attempt upon the
:
any member
of the Prince, or of
nary punishment
The
1539.
III
is
life
Extraordi-
offender
asunder by horses
^^
castles,
is
the particular
Under
this
In serious cases
of kindred acts.
body and
offense.^''
head
Counterfeiting of money.
nized
estate "
counterfeiting of
Two
namely
money,
false
weight
282
Chapter X]
terfeiting of
money, even
penalty
is
TO THE REVOLUTION
59e
death."
Peculation
that
is
to say, the
embezzlement
of royal or public
own
-'"
is
liberty.
rights of the
the
Roman
Code.^^
An
or concealment of criminals.
associated offense
is
that of
In spite of the provisions of the Criminal Ordinance,^" escape from prison is seldom punished except when accompanied by the use of violence or the commission of some other
prison breaking.
crime.
means
of escape
is
a fine
By the opening
of the
1500
s,
the duel
it is
pp. 452-454.
Jousse, op.
23
2s
2
2'
28
29
'
''
cit.,
II,
com-
22
2*
liatl
In the period
Art. 23.
Art. 280.
Jousse, op. cit., Ill, pp. 767-810.
Lib. IX, Tit. 5, "De privatis carceribus."
Questio 27, n. 35: Jousse, op. cit., Ill, pp. 283-286.
Tit. XVII, Art. 25.
Jousse, op. cit., IV, p. 95.
283
51)t']
[Pakt
I,
Title
III
The
remarkable.
last
instance
of
in
Distinction
is
details of the
made between
challenge without
a challenge
is
fine (to
offices for a
to circumstances.
a challenge.
ment
of
both parties
is
of the decedent's
that
is
taken,
memory, and
by way
incurs flogging
ment
and
eft'ect
of this
All
He who
who
participate are
dignities,
where
^
1500
[In his
makes
s,
it
by battle. "Verfall des offiziellen imd Entstehung des privaten Zweikampfes in Frankreich", p. 138 (Gierke's "Untersuchungen zur deutschen
Staats- und Rechtsgesehichte", 99 Heft).
Transl.)
33
Art. 24.
34
Art. 36.
284
Art. 2.
Chapter X]
9e
The unlawful
("homicide volontaire ", " meurtre ", " assassinat "). The killing of an adulterer is not punishable. Where there has been a
wounding, the case is one of homicide if death ensues within forty
days. Attempt to kill, in general, is not punished as severely as
the consummated offense. It is only the proximate attempt,
conspiracy to kill (" machination de tuer "), the hiring of an assassin, and instigation of another to commit homicide, which are
Self-defense is discussed quite
visited with the death penalty.
homicide
is without anything disof
fully.
the
learning
But
Farinacius.
The punishupon
is
based
tinctive
principle,
it
on
ment for murder is breaking on the wheel more exact determina:
tion
is left
to the
courts.'"'^
more
is
Its punish-
offense,
and
ment
is
is
Jousse, op.
38 Ibid., Ill,
285
"
Il>i,l.,
39 /^jV/.,
59e]
})ase(l
upon the
[Part
and
I,
Title
III
is still
a crime.
The
estate
is
to be confiscated
criminal proceeding?
These
rules,
and a
how-
practice.
The
chief doctrinal
134th Novel,
thenticated
rights.
c.
",''^
i.e. is
The man
is
immured
in a cloister,
and
sometimes by
siderations apply to
Similar con-
in default of special
laws.^''
For the several forms of the crime against nature the punishis burning at the stake.^^
Of the oflFenses grouped under the designation of carnality
(" luxure "), rape is punished with death, as is also carnal connection with a female child.
In other cases, resort is had to some
severe penalty of a different description, although death is usually
ment
Pandering
ping,
and the
is
like.
"
^1
*^
"extracts
XXX
286
Chapter X]
9e
virtue of
and god-daughter.
the punishment
tionship,
and
Among
is
this
we encounter,
that
first of all,
Its
more
(e.g.
by
Difi'erentiation as to kind is
reference to the " circumstances which render the theft
or less grave."
theft
These are
by a domestic)
(6)
(a)
(c)
robbery theft in a public place or during a conflagration)
the time of commission (theft in the night-time)
(d) the manner
;
(/) its
*^
60
"
287
561-573.
59e]
rrivutf
I'ulsiHcatioii
sification generally
[Pakt
I,
Title
1 1
by word
or act (wherein
Its
is
and was
Fraudulent bankruptcy
is
and Blois
Although
^^
;
Commerce
and an Edict
of 1609
(1673)
observed in practice
however, remained
and
;
in
"^
was repeated
in the
in a Declaration of
Ordinance of
1716,
it
was not
Accomplices incurred a
fine,
in
still
^-
cit.,
Ill, pp.
341-416, where
288
Chapter X]
punishment
of property
9e
of usury
but mitigated
in
practice. ^^
The
last division
of insults.
that
is
of insulting language
man
"
("motif de mepris
The latter is of three sorts: insult by
of mouth, insult by writing, and insult by conduct.
In the
").
word
is
required,
is
fine
as "
amende honorable
ing, the
law
pressed, or
is
is
"
and banishment.
As
to insults
up
torn
by
writ-
libel is
sup-
For every sort of insult by conthe penalty depends upon the circumstances,
in public.
the extent of the injury, the person injured, the place, or the nature
of the act,
award
of
damages
The
different cases
Especial mention
ments
sale of
is
For
libels
Printing, ])ublication, or
libel
many
was forbidden by
subsequent enact-
'^
pre-
Jmisse, op.
Op.
"1
cit..
ell.,
Ill, pp.
573-671.
Art. 10.
289
5i)(J
[Part
I,
Trn.E
III
discretion.
tion of
part in
its
^^
which
may
all
who have
must be punished
in
punishment
life.^^
And
authorized or
the self-same
manner.^^
list
^ Art.
Art. 78.
^^
Op.
cit..
Art.
1.
2.
290
Art. 3.
Chapter XI
OTHER COUNTRIES
IN
THE
lOOs-lTOs
A. Scandinavia
59/.
1600
Outlawry
Legislation
s;
Capital
Of-
Conditions.
Penalties
during the
The
59/. Scandinavia during the period 1500 s-1 700 s.
The legislation of the first half of the 1500 s exhibits an
1500 s.
increasing progress in penal law to the conception that the end to
be sought was not the securing of private redress and damages
so much as the maintenance of public order and safety. The
More severe
system, however, was not essentially changed.
penalties were prescribed for di\'ers ofienses with a \iew of enforcing more effectively the duty resting upon the public authorities.
reason set forth for these drastic enactments was the lawless
The
still
ofVenseless
life in
" History."
first four headings of this Section continue Stemann'.s
already cited in note 1 to 39; for this author, see tlie Editorial
Preface.
Ed.]
i[The
etc.,
291
59/]
The Laws
of Christian II
liherate homicide
if
pcnaHzcd
witli
[Part
death
all
I,
Title HI
cases of de-
life
Ordinance of Frederick
of Christian III for
I for
Fyen, of
Kopenhagen,
May
of
This
is
seen in the
custom
by paying
without the cause reaching the law's tribunal. The chief purpose
of these enactments, as well as those of 1547, 1551, and 1558, was,
therefore, the abolition of the "
Haevn
These laws also prescribe death for homicide (except where done
by accident or in self-defense), whether the offender was caught
his perin the act or declared outlawed and later apprehended
sonal estate was forfeited, half to the king and the other half to
;
old rule
Chapter XI]
OTHER COUNTRIES
IN
THE 15 S-17U
[59/
fugitive murderer;
is
ful
if
of 1537,
made general.
Where reconciliation
later
peace of the king upon him." Where in particular cases there was
a doubt as to the manner of punishment, or aggravating or extenuating circumstances appeared, the defendant was referred to the
" king's favor or disfavor " and his case was decided directly by
the ruler.
The
ecclesiastical jurisdiction
293
59/
[Paut
I,
Title
III
later involved
made
and
of estate, exile,
II, of
viz., forfeiture
death.
False
mode of warding
punishment was reserved by later acts
Witchcraft would seem,
for repeated perjuries deliberately made.
in the Ecclesiastical Law of Christian II, to have already involved
the death penalty, if actual injury had been inflicted upon some one
witches.
it also punished with whipping a consultation with
While the Decrees generally do not expressly deal with this offense,
the stake was in use, as is shown by divers judgments under Chrisnecromancy and superstitious practices were
tian IV (1617)
punished with forfeiture of goods and exile.
By sundry other amendments to the penal laws, public punishments were imposed for offenses which had previously been subject
to fines only, as well as for misdemeanors which were not violations of any individual right but involved the moral and public
There was a more general extension of public prosecution
order.
and express declaration is made of the general duty of the public
officials to watch o^'er the enforcement of law.
The internal disorders which devasLegislation in the 1600 s.^
for the oath
off
this
tated
Denmark
for the
vengeance, was
now made
The
on the preservation
A measure
of its privilege to settle its feuds with the armed hand.
of considerable progress aimed against this privilege was the Procchief obstacle
was the
lamation of ]\Iay
arms.
The
1,
fire-
Ed.]
294
OTHER COUNTRIES
Chapter XI]
IN
THE 15 -170
59/
in the government, as is evidenced by its issuance of " letters of release of feud ", binding the kin of the person
killed, without the cognizance of public authority, during the reign
powerful influence
of Christian lY.
is
that,
God, and
of
his
it
professes to
punishment
of the
people.
(3)
adultery.
deliberate
rape; and
heavily penalized
of the
(1)
(2)
unrighteous
"Thing", and
perjurers.
])ro vision of
the
Law
of Erik
damage
result
any one from fire and light, then he shall immediately be seized
and thrown into the same fire, if he be caught in the act "). Imprisonment at hard labor at Bremerholm or in the House of Correction became frequent punishments under Christian IV.
The jurisdiction of the State authorities now embraced that of
the former ecclesiastical courts, and was extended to include
many acts not involving wrongs to individuals. Among the
offenses now recognized were witchcraft, vagrancy and beggary,
incest, concealment of child-birth, and relapse into the Catholic
Moral conditions during the 1500 s had been at a low ebb
creed.
priesthood,
the
monks, and nuns being especially depraved. At
of
Constance
the Council
it is recorded that over seven hundred
" pleasure-maids " were present at the gathering.
Even the
Reformation effected little change, and improvement came only
of
were frequent. A large niunber of persons were executed for witchcraft, towards the close of the 1600 s; and among these victims
of superstitious creeds are found noble ladies, one of whom, Christence Kruckow, was charged with having instituted at the university a "
Stipendium decollatir
The dominant
principles
virginis."
in
295
rodi'.s^
59/]
The
(1)
Law
of
God,
i.e.,
is
[Part
I,
Title
III
the Mosaic
Law
(2)
The
The
many
May
1,
1653, the royal statute regarding fines and breaches of the Sabbath
(October
2, 1665),
November
of infanticide
(March
1,
1681 and
Likewise,
it
In course of time, however, the general conscience came to disapprove of these harsh punishments, and while the provisions
still lingered in the books, milder penalties were employed in actual practice.
The Penal Code of Queen Cristina introduced a
system more in accord with this common sense of justice and actual
practice.
A thorough reform is visible in the Code of 1734 the
labor of a century. Nevertheless, the dominant principles remained unchanged, although the principle was now recognized that
the penalty should aim to be only a just retribution. Draconic
punishments still remained capital punishment being prescribed
in sixty-eight cases.
INIarking
an epoch
in the
development
of penal law,
is
the act of
new
s.
Chapter XI]
9g
troduce an even more thorough reform than that which was embodied in the statute of 1779.
B. Switzerland
Switzerland
59^.
in
the
1500 s
59h.
The
1700
s;
klrung"
the
"AufPeriod.
ormation Period.
59<7. The 1500 s and the 1600 s; The Reformation Period.
Whether the Carohna ever had force in Switzerland, either formally
Most of its proor substantially, opinions have differed widely.
visions dealt with procedure, and therefore would not be appliNo doubt it was more or less used by magistrates for their
cable.
guidance.
Germany
lina in
peace-law was
little
by
it.
but
in
Switzerland the
The Reformation, of course, affected the criminal law in Switmuch as it did in Germany, even in the cantons which re-
zerland
mained Catholic.
and is in many respects a retrogression. Reliand authority are its marked elements. Offenses
against religion and creed become nimierous, as in Germany, and
Blasphemy, adultery, incontinence, and
are harshly punished.
sinful acts generally, become prominent in criminal justice.
Church and State mutually assist in the zealous task.
There were, to be sure, differences observable tlue to local condiCalvin at Geneva, Zwingli at Zrich,
tions and personalities.
Luther in Germany, had dominant influence, each in his own way.
Calvin introduced a terrorist ecclesiastical administration, emphatic in its Puritanism. Zwingli's nature was liberal and democratic his heart was with the connnon j^eople, and he led a struggle
Luther was in the
against the privileged aristocratic families.
confidence of the German territorial princes, and their ambitions
spirit of repression,
gion, morality,
tlie
Protestant faith.
In
treatise as authority
ace.
Ed.]
297
5!)/i]
in Switzerland, the
lej^islation,
})()(lily
educated judiciary).
With
it
i)artly
[Part
I,
Title
III
of the ruler's
From
sin.
the excesses
in the penalties,
God
an em-
for a people's
of obedience to authority.
and
arbitrariness,
rose
community
and recover its old Swiss
spirit of freedom.
In his " Lettres de la Montagne," Rousseau
describes the abnormal authority of the Geneva Council in criminal matters
"Its power is absolute in every respect. It is prosecutor and judge.
It sentences and it executes.
It summons,
arrests, imprisons, tries, judges, and punishes,
itself alone does
the all-European reaction of Rousseau's time did that
tear itself free
from
its
intellectual slavery
all."
And
history of progress.
in
It led in a great
its
movement
due place
in the
of regeneration
in criminal law.
Roman
law,
Canon
is
not easy.
law,
The
all
these
Chapter XI]
[ 59/i
1400 s, nor drowning since 1615 and by the 1700 s beheading had
become the usual mode of execution. The figures of executions in
Zrich and Schwyz show plainly the diminishing harshness in the
;
1500
572 executions
The
modes of execution are equally significant in the 1500 s, by fire 61
by gallows 55, by drowning 53 in the 1600 s, by fire 14, by gallows
in the 1700 s, by fire 2, by gallows 16, by the
10, by drowning 9
wheel 1, by the sword (beheading) 106.
j\Iost of the changes towards progress came about by judicial
s,
in the
iboO
s, ;3;3G
in the
1700
s,
149.
practice
express legislation
is
found
fects
in the
responsive to the
period, here as
its
influence
in
criminal
justice.
The all-European
agitation
possibilities of
Switzerland.
The
old peace-law
still
preserved
its
duty to intervene by parting the combatants and giving information to the court.
The principle of honor in word and act was still
a living one. Stealing and fraud were still more heavily jHMialized
than wounding or even manslaughter
in Schwyz two men were
The absconding
hung for stealing and fraud as late as 1822.
debtor was regarded as a thief. Gambling, the squandering of
family property, shirking of labor, and the like, were strictly reprehended. The modern point of view, which condones or admires
smart dealing, tricky business methods, and clever evasion of
obligations, so long as one keeps out of jail, was as yet nowhere
;
299
59h]
[Paut
I,
TiTLE III
clared that he
in his
it is
word
recorded, so firm
ordinarily neither
is observable.
In Uri, the death penalty was remurder and arson. The wrongdoer is often described
the judgments as only a misguided man
the intercession of
stricted to
in
his family
is
given weight
the sentence
is
No doubt this lenity may be attributed to the (nowadays often criticized) tendency of lay judges to
undue weakness in imposing extreme penalties and in these primicircumstances of the case."
as 200 or
more
citizens.
tive patriarchalism,
a notorious
justice of
had
in
manhood
many
as its
principle of
the sword,"
Habit-
300
OTHER COUNTRIES
Chapter XI]
IN
ideas
59i
the
C. Netherl,\nds ^
Sources of Criminal
the Netherlands
the 1500 s.
59i.
Law
in
59A-.
before
59/.
Carolina.
Sources of Criminal
59i.
1500
s.
After
the
fall
Law
of the Carolingian
still
courts.
the
The
its
which
in the
1000
liberties,
fined offenses,
etc.
Some
e.g.,
of these rural
even contain
fairly
For
information regarding the law in earlier or later times, the investigator should not overlook the law books, explanations, or compila-
Law-book of Briel " by Jan Matand the "Rural Law of Overyssel " by
Melchior Wynhoff
The Canon
in 1559.
it
It inone.
fluenced the people to regard crime as a sin (along with the " dethe
licta ecclesiastica ", the " delicta civilia " and especially
the
civil courts,
became powerful
in
50j]
[Part
I,
Title
III
" mixta "), a<jjainst which tlic Church threatened lier penalties
(" poeuitentie ", " poense medicinales ", " pee me vindicativai ").
of standing,
who
coming
in the
MeanCanon
development
The
great event
as the Reception of
Roman Law,
59/.
known
An
powerful influence in
its
Roman law
undoubtedly began as early as the 1100 s and 1200 s, when the young
men of the Netherlands began to visit the Italian law schools.
The Roman law became further known through the development of legal procedure under the influence of those learned
jurists who had already begun to exercise control over the government in the cities, but whose direct authority in the matter
of the administration of justice assumed a decisive character
during the rule of the Burgundian princes. The courts were
then being composed of professionally trained jurists, and the
Great Council had just been created (1473-1482) and permanently established at Mechelen in 1503.
Roman law had acquired, in the meantime, a positive legal status.
The Instruction of Charles the Bold to the Council (1462) is the
oldest known authority in which it is ordered to " proceed after
the contents and the form of written laws "
while in Friesland,
which first acknowledged the authority of the Roman law, the
" imperial laws " were definitely adopted b}^ the confirmation
letter of Charles V, in 1524.
Whether the Roman law carried
equal weight in all the provinces depended very naturally upon
whether the written criminal law was equally complete in all
the
field of
criminal law.
localities.
That
division of classic
Roman
be found in the Roman law-sources. Because of the imperfections and deficiencies of the national criminal law, and the
growing need of a system of public law, the Roman criminal law
302
Chapter XI]
59j
fertile soil
prepared for
we
its
are speaking
"
as " crimina extraordinaria", with the " extraordinaria cognitio
"
"
"
"
of the imperial judges, a
poena extraordinaria
or
arbitraria
was
applied.
An
ments
of every description;
Roman
law,
e.g.,
capital punish-
maimed
ment
For instance,
made and
though " dolus" was expressly required, attempt or j)articipation
was also included in the general idea of each crime. But the Roman law, including criminal law, as accepted in the 1500 s, was not
the pure law of the classic sources. The Roman source law in its
original form had been worked over by the Glossators and Postglossators and the criminal law in particular had been to a certain
degree systematized and scientifically treated by such Italian
criminalists of the Middle Ages as Albertus Gandinus, Angelus
Aretinus, and others.
This legal system acquired an ever-increasthe definition of the several crimes was not sharply
its principles.^
s,
Netherlands prov-
On
s,
U'.
dc
Vries Az, "Historia introducti in provincias, qnas deineeps respnblica
Belgii unit! comprelu'ndil, juris Romani" (1839); and other writings
6.'i
quoted by Modderinau.
303
TIIK
r>\)j\
[Pakt
I,
Title
III
nu'iits),
in character),
nances.
Two
gciicral
onliiiaiiccs
regarding
tlic
law
criniinai
must he considered,
the one
who gave
i.e.,
to
legislative
power
of
and whether the formalities required to make the ordinances binding have everywhere been complied with " (Fockema Andrcjc).
The Carolina (" Keyser Karls des fnfften und des hey igen
Rmischen Reichs peinlich Gerichtsordnung ") is one of the most
remarkable of all the relics of historic German criminal law, on account of its origin, contents, and authority. Instituted in 1530
and 1532 by the German diets of Augsberg and Regensburg, it
was the outcome of the necessity for combating the many abuses
in administration of justice and the lack of knowledge of the prevailing law on the part of the unlearned judges of that period.
The German Empire was already fortunate in the possession of the
Bambergensis (1507, " mater Carolinse "), an excellent model
containing a systematic collection of Germanic and Roman-Canon
criminal law, which had become established under the authority
of the Italian criminalists.
It was compiled, in part, by Johannes
Freiherr of Schwartzenberg and Hohenlandsberg (1528), who also
1
The Carolina
is
made up
of rules of proced-
and
may
an elaboration of certain general doctrines, e.g., self-defense, complicity, attempt, and extent of responsibility.
While it creates
little new law, it sets forth the existing law in intelligible language.
continually advises in doubtful cases the invoking of the
" counsel of the jurisconsults ", thus leaving every opportunity
It
mally carry the weight of absolutely binding general law, yet, be-
304
OTHER COUNTRIES
Chapter XI]
IN
59j
cause of
States
whether
German
peror's
States,
had any
and prevailing
effect in
Em-
the
in
It is pretty generally
under-
C C. C",
1770),
who took
it
similar controversy
thority of the Criminal Ordinances of Philip IT, of the 5th and 9th
of July, 1570, the former treating of the measure, the latter of the
in
heresy
tion.
Duke
of Alva,
came from
from
this resolu-
Philip and
the
privi-
tion on
it
Mean-
in
tration of justice, the prohibiting of private composition for offenses, principles regarding
305
ilA]
[T'art
and a provision
I,
TlTr,K III
tiiat a
person
should be condemned only according to written laws, etc.Notliin<j eanie of the attempts of Charles \' and Philip to collect
the customs of the several ])arts of the country, and consolidate
and unify the law; for the Revolution broke out, and the
course
ing to the
murder, whether justice should be administered accordlaw, the Mosaic law, the Carolina, or an old
Roman
charter of 1342.
5/.'.
General
Features
of
s.
Criminal
the
Amidst
so
etc.,
selections
from the Roman law sources, and from the Bible, are also quoted,
but the principal reference is to the army of authorities, beginning
with the Glossators, down to the immediate predecessors or contemporaries of the author.
The Dutch
As
Law",
ib.
p.
432;
1873, p. 3
B. Voorda,
4-6.
30G
Chapter XI]
[ 59fc
Roman
who wrote
wegen
tas "
Belonging also
in this
century were
Hugo
Grotius,
In the 1700
of Holland,
the principal
s,
J.
Schrassert,
masters
among
the Glossators
and Post-glossators who dealt with Roman law in general, particusecond, the
larly Bartolus (1357) and his pupil Baldus (1400)
writers on Italian criminal practice of the 1300 s and 1400 s (developed from Roman principles) such as Albertus Gandinus Jacobus
de Belvisio (died 1335) and Angelus Aretinus. The Italian crimi;
Ilippolytus
nalists of the 1500 s exerted still a strong influence
de Marsiliis (Bologna, died 1529), Aegidius Bossius (died 1546);
and most important of all, Julius Clarus (member of the Supreme
Court at Milan; died 1007), and Prosper Farinacius (Attorneygeneral at Rome died IGIS). Jurists of other countries were also
cited, among them being the Frenchman Antonius Faber (died
:
1G24)
" the
German Papinian
died 1587), and particularly the Saxons, Matthias Berlichius (professor at Leipzig;
his
still
stolen from
Ghent."
307
its
.7.A]
[PAHT
I,
TiTLE IH
made
witli
a judge of
many
scientific conceptions,
as authorities,
who
will
be later mentioned.
Character of Criminal
Law
of this Period.
of the
new
order,
substanti\e criminal law (which, as derived from the various abovementioned sources, prevailed until the first general codification)
naturally resembled in
many
countries.
and
general codification.
that,
its
severity
method
punishment and
law or practice left
of capital
i.e., fine,
imprison-
ment, lighter corporal punishment, or exile, in cases where the offense was not serious or " full proof " of the offense was lacking.
In some instances, even the determination of an act's criminality
was lodged in the court, when the act done was one for which no
308
Chapter XT]
OTHER COUNTRIES
IN
[ 59;
Now
the infliction of
rule,
and then,
nature or
difficult of
by buying
off
the
prosecution.
The main
was
its
all
kinds of crime
and
this penalty
hanging, beheading, breaking on the wheel, drowning, burning, even quartering, sometimes
prescribed by written law, sometimes
to the judge's discretion.
Corporal punishment sometimes
the form simply of torture,
though frequently carried to the extent of maiming members of
the body or destroying the organs of senses was frequently emwas
ways,
left
in
by way of increasing the severity of capital punishaccompanying the penalty of exile or of infamy. The
complete or partial confiscation of property was also a frequent
Confinement in prisons played a minor part
penalty.
the rule
ran that " the dungeon exists for detention, and not for punishment " but one who suffered detention in the dungeons was often
exposed to everything from which even a cruel man would protect
ployed, either
ment
or of
tion ",
one of Philip's Ordinances), the rack was employed for this purpose, not only in cases of overwhelming evidence, but also (contrary to the original rule) in cases where the evidence was altogether
insufficient.
Prosecutions for witchcraft, and the burning and
banishing of witches, were another feature of the times
a terrible
demonstration of the effect of superstition. And this entire system of cruelty and ignorance was upheld in subtle essays, supported by the most learned authorities, and administered by the
most venerable and conscientious men.
Yet it must never be forgotten that in comparison with other
309
'}\)lc]
craft
was that
of the physician,
I,
Title III
The
li()[)('
aj^ainst
[Part
prosecutions for
Johannes Wier
{I'Ay.i)
of
witch-
Arnhem.
s,
w^as
general,
field of
made a
In
lives."
made a
criminal law.
s.
But
them
altogether.
ties in
It soon gained
foothold in
Its
all circles of
may
origin
Toulouse
demned
murder of his son, he w^as conand broken on the wheel Voltaire, in 1752, ex-
to death
310
Chapter XI]
OTHER COUNTRIES
IN
dk
interest
They arraigned
Voltaire took
in
justice
literary circles.
Criminal
and
Bern ottered a prize
of discussion in scientific
society of economists at
new code
II, in
a Penal
Code
311
")!)/i;]
its
Xot
effects.
until
[Part
I,
Title
III
the tremendous
j)()litieul shock of the French Revolution was felt did the old criminal system begin really to (Tumble away.
The new thought penetrated but slowly in the Netherlands. It
had its sui)porters (such as Schorer) and its prudent but sympa-
It
had
also its
opponents (such
as Barels and Voorda), warning all against " the errors of the newBut the spirit of the times had rendered
fashioned philanthropy."
years, the
At
first,
methods
names
of
the manuals
in
and unity
of legislation
istration of justice
312
of 1795.
TITLE
IV.
CHAPTER
XII.
CHAPTER
XIII.
THE
GERMAN
FRENCH
PERIOD.
313
REFORMS
OF
THE
REVOLUTIONARY
Chapter XII
60a.
606.
60a.
It
the Revolution.
of
the
death penalty, and a prodigal use of bodily mutilations. Furthercrimes are loosely
more, punishments are variable in discretion
against excess of
no
security
individual
has
the
defined; and
;
Finally, ignorance,
and
prejudice, and emotional violence breed imaginary crimes
of
social
regulation
the
beyond
extends
penal
law
the scope of
relations and trespasses even upon the domain of conscience.
;
It
is
we may
better
understand the progress which has taken place and the benefits
In fact,
for which we are here indebted to the French Revolution.
it is not incorrect to say that the whole of the old French
law
persisted (with some modifications) in the present civil
civil
can
be affirmed, nevertheless, that the modern penal law
Code,^ it
though
315
GOo]
[Pa fit
T,
Titlk TV
has completely broken with the old penal law, and that a comparison Ix'twccn the two consists mainly in contrasts. This idea the
eminent Boitard emphasized in his first chapter: ^ " Our new lawsare not, as are our civil laws, the reproduction, more or less faithful, more or less exact, of principles accepted in former times.
In the penal law, almost everything is new; almost everything has^
felt keenly the influence of the times, the customs, and the revolutions.^"^
To be convinced of this, it would suffice to glance at the passage of
Pothier in which the learned author sums up the criminal law of
the late 1700 s.
In the IGOO s public opinion had not shown itself hostile to the
Its cruelty, its inequality, it;^
criminal system of the times.
arbitrariness, are all deemed, by the best minds, to be necessary
harshness.^ In the 1700 s, the point of view begins to change.
The Revolution, with its alleviations of the penal law, was only
efi'ecting reforms already ripe, because they were demanded by
How is this change of attitude to be explained ?
public opinion.
It was due in part to the philosophic movement which marked the
'
' [Boitard,
1st ed., Paris,
"Lemons sur
1836-9; 13th
criminelle",
316
Chapter XII]
60a
second half of the 1700 s, and rested on two new itieas reason and
humanity. As early as 1721, Montesquieu, in the " Lettres
persanes", had discoursed on the nature and the efficacy of punishments then, in book G, chap. 12, of the " Esprit des lois ", he
:
But
it
was reserved
movement
of reform.
In
all
epochs
Of the works
which contributed to make her fame in this period, none has influenced the ideas and usages of Europe to an extent comjjarable with
Beccaria's " Treatise on Crimes and Penalties", which appeared in
1706.^
Beccaria was the first to formulate precisely the criticisms
lie drew up, as
of the old system and to propose a plan of reform.
it were, a declaration of humanity's claims against the criminal law.
Beccaria's doctrines were immediately commented upon and
Rousseau, to be sure, busy mainly with
cle\eloped in Erance.
questions of morals and of politics, gave little attention to criminal
law he devoted to it, in passing, a word or two in his " Contrat
social "
but even this much was destined to have a great influence on penal legislation. Villemain has pointed out, as a
:
characteristic trait of
government, of law,
speculative innovation transformed into active and real innovation."
At the head of this movement we find Voltaire he writes
*'
that he is doing nothing but read trials " ;^ and he published a
commentary on the "Traite des delits et des peines." The learned
business, of
' Beccaria,
"Dei delitti e delie pene", Munich, 1766, in octavo. Xo
treatise on criminal law has been reprinted so often.
French edition
of this work was published under the title: "Des delits ot des peines",
new edition, with an introduction and a commentary by Faustiu-Helie,
1856.
See "Beccaria et le droit penal, Essai", by Cesare Caiitu, translated, annotated, and prcn-eded by a preface and an introduction l)y
J ulea Lacointa and (\ Dclpcch (1SS(), Paris, Finnin-Didot). Tliis treatise
on crimes and punishments tou(^hes or discusses thi> most important questions of criminal law, but more particnilarly it opposes the death penalty
and the use of torture. It secures jjroper limitations for the repressive
system by the principle of reducing punishments to tlu^ severity necessary for maintaining jjublic safety.
It may be said that the classical
school of criminal law in th(> 1800 s was th(> product of this marvellous
little book of Beccaria.
Has this school finished its historical cyfle, as
some now maintain? It is surely true, at all events, that penal law is
lieing transformed, and that the ideas of Beccaria are being abandoned
Esnici, "History of Continental Criminal Proof this Series] on the ideas and works of the three
men who did most among the philosophers for the reform of criminal law,
Montesquieu, Beccaria, and Voltaire.
cedure",
p.
362
[Vol.
317
(iOaj
(Part
I,
TiTLP:
IV
institutions of
the times.^-
Men,
318
Chapter XII]
60a
But none
of these defenses
legal system,
II,
influenced
some
by the
had introduced
the
former had begun his reign by the abolition of torture the latter
promulgated a penal Code in which the death penalty was omitted,
save for military crimes. In Tuscany, also, the Grand Duke
;
In France
itself,
under
On
an edict was
announcing a general
the meantime, repealing
issued,
reform
must
^^
:
1st,
2d,
the use of
judgments of
month
punishment were to be
after confirmation
5th, persons
This edict indeed was not carried into effect ^^ but it showed that
the reforms were ripening, and that it remained only for the will
Public opinion revealed a unanimof the nation to achieve them.
;
period.
In the reports
1st, equality,
indi-
to declare
'^
The
them
p. 527.
cil.,
319
p.
397.
Such,
XXVIII,
{M)b\
[Pakt
I,
Title IV
for the
The
of INIan, of
August
20, 1789,
and
in a
borrowed from the theories of the " contrat social " its corollary
power ought and can concern itself only in
maintaining " good order " in the relations of men among themHence, the two following consequences 1st, As to crimes
selves.
" The law has the right to prohibit only actions harmful to soMoreover, no person is to be interfered with on account
ciety."
of his opinions, even on the subject of religion, provided their
With the
expression does not in any way disturb public order.
;
disappeared
all
" crimes
lese
of
majeste against
2d,
As
God
to j)enalties
such as
",
:
"
The
blasphemy,
To harmonize
the penal system w^ith these principles, the ConAssembly strove to remove all the inconsistent features
of our old criminal system.
Punishments had been determined
according to the judge's discretion; so the Assembly laid down,
stitutional
'*
Cf. A. Desjardins, "Les cahiers des Etats
legislation criminelle" (Paris, 1883).
See also:
to 402.
320
generaux en 1789 et la
Esmein, op. cit., pp. 397
Chapter XII]
the offender "
and Title
of the Constitution of
60b
September
3,
{i.e.
confined to the
it
The penalty
offices."
abolished.
of
ofl'cnder's
and
was
death
mark outwardly
this
security.
the Constitutional
To
Assembly
enacted two separate Codes, one for crimes in general, the other
for misdemeanors; the Penal Code of October 6, 1791, was for
crimes
This system
part, entitled " Sentences ", includes the general i)enal law,
and
is
criminal punishments
(tit.
titles.
1),
alties,
(tit.
2)
(the recidivist
first
manner
Such
is,
who
fail
moreover, the
it
3d, the
to appear
(tit.
4)
i>{)h\
5tli, a^H'
puiiishnieut
(tit.
5)
[Paht
I,
TiTLE IV
ami duration
of the
(tit.
7tli,
ment
",
titles
the
first
specific crimes,
and
is
sub-
safety
(section
2)
3d,
1st,
and
crimes
attempts
against
officers of
exercise of
The law
and
and classifies municipal and correctional misdemeanors and the punishments applicable to them.
For these offenses it is both a code of procedure and a penal code.
In the penal part, municipal misdemeanors are enumerated,
with the punishments applicable. Correctional misdemeanors
" Misdemeanors punishare grouped under five great divisions.
",
able by the correctional courts
it provides (tit. II, Art. 7), " shall
be
1st, misdemeanors against good morals
2d, public disturbances of the exercise of any religious cult 3d, insults and serious
violence to the person 4th, disturbances of the social welfare and
of the public peace, by begging, riots, mobs, or other misdemeanors
oth, the attempts against the property of individuals, by damage,
larceny or ordinary theft, swindling, and the opening of gambling
houses where the public is admitted."
To these two laws there was added, four years later, the " Code
of misdemeanors and punishments ", of the 3d Brumaire, year
IV (October 25, 1795). It was drafted by ^Merlin - and, after
and
of July 17
of
322
Chapter XII]
two
606
is
the
Book
II, entitled
provisions
offenses
for
1st,
605 to 60S)
afflictive,
599 to 604)
2d, an enumerato ordinary police punishments (Arts.
(Arts.
(Arts.
612 to
It
The
Labor in chains, which was the next highest after the death penalty,
was not to exceed a term of twenty-four years. Indeed, in a penal
system which does not recognize the power of pardon, there is no
place for life penalties, for we take away all hope from the convict
and the most powerful motive for repentance disappears if he is
not allowed to
feel
presented it to the Convention and it was adopted upon his mere readIn his
ing of it, interrupted only by the proposal of some amendments.
"Notice historiquc sur la vie et les travaux de Merlin", M. Mignct says,
of this Code of Brumaire
"A {jciieral expression of the most advanced
social philosophy, this Code, written with elegant clearness, whose every
provision carried, so to speak, its reason within itself, was voted in two
sittings by the Convention, which adopted it in reliance upon his sponsorship.
Thus the ideas of Merlin remained for nearly tifteen years the
legislation of France."
'This text runs thus: "The issuance of any document tending to
hinder or suspend the ex(>rcise of criminal justice or of any Letter of pardon,
of discharge, of abrogation, of amnesty, or of commutation of sentence
is abolished for all crimes tried bj' juries."
;
'
323
(K)^|
is
[Part
I,
TiTLE IV
punishments, the punishment for each offense was fixed specifically and unalterably, without naming a maximum or minimum,
between which the judge might have at least some slight choice.
" The Constitutional Assembly," says Treilhard, in the commentary of the Commission accompanying the penal Code of 1810,
" was convinced that it could not enclose within too narrow boundaries the powers given to the magistracy
it
regulated, therefore,
the discretionary powers which the judges under the old system
had
so abused, the
abolished the power of pardon, and took from the judge the power
punishment to the personal and variable culThe result was that the penalty was
frequently disproportioned to the deed which it aimed to repress
and that juries, making a compromise with their consciences, preferred to acquit the offender rather than to bring upon him a
punishment which they regarded as exaggerated.
The Code of 1791 held sway over France until it was replaced,
of adjusting the
in 1810,
still
in force to-day.
324
Chapter XIII
man
(yriminal
to Gor-
Theory
62.
in
1700 s.
GrolFeuerbaeh. The
Movement for Prison Reform.
Howard.
the
Late
man and
GL The New
Late 1700
s.
Code
of 1813.
Direction to
While
inadequacies of which
judicial
arbitrariness
and to
among German
extensive
significance
of criminal responsibility.
but was not adequate, starting from that standwork out a doctrine of legal responsibility. The theory of
moral freedom (as we have already remarked) offered one of the
best supports for the view that the criminal statute was subject
to be overridden by the judge's individual opinion
a view which
would undermine the statute. The natural attempt, then, for
those who repudiated this view was to find for the criminal statute
responsibility,
point, to
"De
I, o.
9.
"De
officio
hominis",
I, e. 1.
01]
a foundation that
human
of
free(lom.-
[Part
of the
Title IV
I,
assumption
do so
in
Feuerbach,*
of the times.
At the same
make
ords
of
Grolmann's
was an
'
'
326
Chapter XIII]
mur
", forecast
[ 61
And
by Feuerbach's
'
in
effects
Germany. ^
The
conditions
in
many
of
the
great
^ Klein's essay, "Ueber Natur und Zweck der Strafe" in the "Archiv
des Criminalrechts", Vol. 2 (1800), from the historical viewpoint is far
more accurate than Feuerbach's "Revision." Cf. also Klein as to Grolmann's "Lehrbuch" in the "Archiv des Criminalreehts", Vol. 1, Portion
4,
327
02]
(Timiiuil institutions in
most
in
[Part
I,
Title IV
and
of reformatories
careful supervision
by the
local authorities,
'^
were used also as asylums for the insane, the poor, and even the
or])lians.
Ideas of progress, which even yet have not reached their
full fruition, were at that time struggling against opinions and
conditions ^^ which to us to-day are inconceivable.^^
It was natural that
02. Feuerbach as Legislator for Bavaria.
a State like Bavaria, which as a result of external circumstances
had
at the
same time
inclined so
much
law as
This
by
its
sphere, but
it
CJ. the
observation of Wagnitz
pp. 67
et
seq.)
concerning the
"Zuchthaus"
1-
a.
in Celle.
In many institutions of this character
M., Augsburg,
cf.
Wagnitz,
I,
pp. 267
et
{e.g.
seq.:
II,
in Leipzig,
pp. 90, 91
Frankfurt
;
II, p. 11)
328
Chapter XIII]
Xo
application.
all
and multiplicity
cases
and examples.
cases
62
make amends
it
for
be defective
will
and imperfect by the very reason of its prolixity." " The (wise)
legislator - does not speak in syllogisms, and does not use philosophic and technical words of expression. He displays his philosophic spirit in the depth and breadth of his conceptions and not
in
He
in
His simplicity
and precision
correctness
of his ideas.
Capable
of being
and
form of a system.
precisely articulated
should
by
coordinate
their association
in
But
its
principles
and
relationship.
Nothing should be
follow.
Avith extraneous
in the
wrong
Laws
place.
dealing
connection in which
legislator
from
it
is
it is
for science
is
but
and
little
to banish
all
set conception
arbitrariness
in printed publications.^
The
2
*
5
of the
To
pp. 20
the contrary,
cf.
'
II,
Part
3,
Div.
2,
et seq.
329
''H'^
(121
In
commission to
j)()siti<)n
TlTLK IV
I,
new draft
[)r('par('
[Part
was a
of considerable
in all
branches of law.
Portion
and a precision
in its definitions
thitherto
its
General
unknown
in
customary
itself
" For it is upon this principle ", says the official Annotation to the Code,^ " that the security of the State and of every
bidden.
individual depends."
It follows the French Code in adopting
the triple classification of " Crimes ", " Misdemeanors ", and
" Transgressions." ^^ The last mentioned are entrusted to a
"
special Code for OfTenses against Police Supervision, and " crimes
"
are allotted to the " criminal " courts, while " misdemeanors
are allotted to the jurisdiction of the " civic penal " courts, and
" transgressions " are left to the jurisdiction of the police officials.^-
The
1" I,
p. 66.
''
I.e.
12
Art. 3.
330
Chapter XIII]
G2
well-calculated s^'stem
of punishment should adjust itself to the character of the individual criminal act, and as stated in the " Annotations " it is the
In
contrast
to
the
Article 65
definitions.
^^
This Code of his also originated those
and subtle provisions as to conspiracy (" Complott "),^^ which infected like disease-germs most of the later
German Codes, and were but slowly eliminated. Moreover, as
the theory of deterrence, which he sought to follow, required that
the greatest possible restrictions be placed upon the exercise of
judicial discretion,^^ the Code's details as to penalties lost themselves in trivial distinctions which in many cases were inevitably either incorrect or open to doubt.
Another defect, due
to the deterrence theory, ^^ was the harsh penalties for second
malicious
intent."
unfortunate
stigation of crime.
'^ G(nierally speaking, the range between the maxim.um and minimum
of punishment was too narrow.
Cf. Arnold, in "Archiv d. Criminalr."
(1844), p. 196.
'* The artificial character of the theory of deterrence,
at variance
with real life, led e.g. to giving quite unreasonable consequences to the
offenses of theft and defiance of the authorities.
Tlie taking of a turnip
from a field or of a plum from a tree according (o Arts. 21S, 220 entailed a
penalty of three years' imi)risonment in a workliouse (cf. Arnold, p. 395),
and the Annotations of the Code would not forl)id punishment for defiance
331
62]
offenses;''-'
and
which has
Ix'cn
[Part
I,
Titf.r
IV
announced by way
of threat
perform a contract ^^ and is dealt with in the same diviIt is also peculiar that
sion as violation of powers of attorney.
Article 106 permits of certain species of " punishment on suspicion " (" Verdachtstrafe "), although this is not recognized by
failure to
the Annotations.
its infliction
fiscation of property
" Annotations ", although the latter were often at variance with
20
^^
^^ Art. 401.
Cf. Arts. 149, 160.
Cf. Ann. I, p. 59.
to the somewhat disproportionate punishment of adultery, cf.
As
et seq.
332
TITLE
CHAPTER
XIV.
CHAPTER
XV.
CHAPTER
XVI.
V.
MODERN TIMES
GERMANY SINCE
1813.
OTHER COUNTRIES:
A.
AUSTRIA.
B.
C.
SCANDINAVIA.
D.
SWITZERLAND.
333
Chapter XIV
62a.
AND FRANCE
1810,
of 1810.
62b.
G2a.
(1)
i.e.
of 1810.
IN
THE
ISOO s
Principal Changes
the 1800 s.
during
French criminal
law includes
Code
of Criminal
i.e.
and
special procedures.
The
may
distinguish, in
In fact,
civil
law
we
alike,
The
enactment and
later
history of the
is
as
follows
i[62ft, 62?),
of Professor R.
Gak-
335
ed.,
MODERN TIMES
62a]
[Part
I,
Title
336
Chapter XIV]
tive.
took as
62a
of
its
of society, by means of
The philosophy of penal justice does not seem to
have concerned the mind of the legislators any further than a
In essence,
it
intimidation.^
to the offense.
crimes, punishments,
it is
in
and
In
its
its
excessive severity
definitions of crime
points, as in
in classing
itself
In
its
We
excessive
many
jurisdiction.
three heads
chastisements,
and
life
the
it.
barbarous mutilations,
and penalties
civil
death.
' Upon
the j^hilosophie principles which inspired the framers of the
Penal Code, we find the following in the "Observations" of Target, placed
at the beginning of the draft: "Plainly pnnishment is not vengeance;
this wretched satisfaction, the mark of a low and cruel mind, has no
place in the theory of the law.
The necessity of punishment is alone what
makes it lawful. It is not the prime aim of the law that the offender
should suffer the thing of chief importance is that crimes be prevented.
If, when a most detestable crime had been committed, we could be sure
that no further crime were to be feared, the punisliment of this final
some would not hesitate to assert
offender would be useless barbarity
that it would exceed the power of the law. The gravity of crimes is
measured, therefore, not so much by the perversity which they reveal as
by the dangers which they entail. The efficacy of punishment is measured less by its harshness than by the fear which it inspires." Locr6,
Vol. XXIX", p. 8.
These remarks express with the greatest clearness the
doctrines of Bentham
and his doctrines undoulttedly formed the basis
Hcnlham'f^ treatises on civil
of the j)ro\isions of the Penal Code of ISIO.
and ])enal legislalion had been translated and ])ublishe(l in 1S()2 by Diimonl.
The influence of Kant had not yet made itself felt in France, at
;
though it may be, does not, howhave properly been made upon its
Chauvcau and Ilclie, Vol. I, no. 11.
system
of
punishments.
CJ.
337
MODERN TIMES
G2fe]
(ler
tlie
[Paut
same nature,
I,
Title
altliouf^h of diflVrcnt
Book III,
Book IV was devoted to poHce misdemeanors. Secondly,
the pardoning power, which had already been restored to the Executive by a " senatus-consultum " of 16th Thermidor, year X,
and the life punishments, are reestablished. Thirdly, punishments
for a term were no longer absolutely fixed, and the important
innovation of a maximum and a minimum was introduced
there
was also an embryonic recognition of the princij)le of extenuating
circumstances, the benefit of which was limited to misdemeanors
causing damage not exceeding twenty-five francs.
But this Code of 1810 is no longer in force in all its original de<!;ravity,
while
tails
provisions.
its
Throughout these
later laws it
is
or modified
easy to recognize
In
fact,
which
is
law of a people.
Principal
This rovdsion affected 162 Articles of the Penal Code, as also parts
Code of Criminal Procedure. See A. Chauveau, "Code penal proCommcntaire sur la loi modifieative du Code penal" (Paris, 1832).
^ This revision, less extended than that of 1832, affects 45 Articles of
the Penal Code.
On this statute, see G. Dutruc, "Le Code penal modifie
par la loi du 13 mai, 1863" (Paris, 1863).
1
of the
gjessif
338
Chapter XIV]
The
may
62b
chief reforms,
mitigation
Penal Code
the
and
recidivists.
(a)
The
reforms.
(1)
certain
pressed or lightened.
aim and
effect
may
number
Among
be cited
and amputation
his execution
of
the Constitution of
November
4, 1848,
abolishing
the death penalty for political offenses, and the act of June
substituting for
it
transportation to a fortress
8,
1850,
the act of
May
31,
1854,
which punishment
is
of ]\Iay 23,
(2)
Some
(3)
certain numl)er of acts have been taken from the category of crimes
and
classed as misdemeanors.
down
liberality
{}))
The
begun cautiously by the act of June 25, 1824, and completed by the
act of April 28, 1832, changed the entire system of the Penal Code.
This radical reform gave to the trial tribunal the power to determine, with some discretion, the legal morality of the offense under
investigation, and thus to cast a more exact balance between the
punishment and the gravity of the particular offense. This power
339
MODERN TIMES
G2fc]
(Pakt
I,
Title
almost unlimited for misdemeanors or police offenses, but is limited in the matter of crimes.
(c) Penal law has become more and more extensive; it has tried
of the judge
is
of social defense.
The
May
1863 gave to the text of the Penal Code a general and careFor example, the offense of extortion of hush-money
ful revision.
Before that, the
(Art. 406, 2) was then foreseen and penalized.
13,
Arts. 317
by a private
embezzlement or destruction of confiscated objects in Art. 408, the conversion of personal property by a
gratuitous bailee who was to bestow work upon it. Apart from the
Penal Code, important acts have extended the domain of criminal
law to public drunkenness (July 26, 1873), and to professional
gambling and pandering in the public street (May 27, 1885, Art. 17).
(d) The reformation of the prisoner through punishment, to
which the Code of 1810 gave no thought, has since then become
one of the chief objects of penal law. To this end, the legislator
has employed two methods 1st, the method of transportation to
penal colonies, regulated by the acts of June 8, 1850 (on deporta2d, the penitentiary
tion), and of ]May 30, 1854 (on hard labor)
method, of which some interesting applications are found in the
acts of August 5, 1850, on the education and the protection of
juvenile offenders, in the act of June 5, 1875, of the reform of departmental prisons, and in the act of August 14, 1885, on the means
health
individual
of preventing recidivism.
(e)
The
increasing
number
and
was concluded that the problem of criminality could be solved
only by distinguishing radically between first offenders and recidivists.
To avoid prison sentences for the former, and to remove
the latter from a social environment where they cannot live without
relapsing into their criminal activities,
such seems to have been
the attempted program of the act of March 26, 1891, which introduced the suspension of sentence, and of the act of May 27, 1885,
on the relegation of recidivists.
efforts,
it
340
Chapter XIV]
To sum up
since 1810,
taneously
may
it
[626
occasional offender.
is
its
its
first
recidivism,
methods.
it
The permanent
wave of
by energetic
seclusion of recidivists
seemed to be
of criminals,
After
all,
to
can he
solve it?
Unquestionably.
to
each of them.
The
true
aim
MODERN TIMES
(Y2h\
[Pakt
I,
Title
and penitentiary
improvement. In spite of the
improvements introduced into the Penal Code, it is, incontestably,
no longer in harmony with the social environment. Though the
enumeration and definition of offenses has been made broader and
an admore flexible, by the Supreme Court's interpretation
fc'iulcr,
down.
The
exclusive,
principles
repressive,
and
is
And
and
must be
directed.^
342
Chapter
XV
GERMANY SINCE
63.
s;
Code
64.
65.
of the
First
Code
67.
as the
Character
of the
Progress
towards Greater
Legal Unity in Germany.
03.^
Germany.
The National Code
Its
Code
Code
of 1870
Criticism
Its
Adoption
Empire.
of the
68.
69.
of 1861.
66.
1S13
Criminal Laws.
of 1909.
s.
Tlie
by Feuer-
bach and Grolmann, did not subside throughout the century but
it came to exercise a considerable influence upon the development
;
ency, there
came
itself.
an
one of its phases) in the researches into Roman law, led by Hugo
and Savigny, and (in another) in the researches into Germanic law
In this period, also, the science
inspired by Eichhorn and Grimm.
of criminal law came to be the common field of study for all civilFor in spite of certain national peculiarities, which
ized nations.
may be easily accounted for, it is founded upon hiunan and psy(in
chological conditions
common
to
all.
and
of the in-
champion
and humanity.
Influence of Feuerbachs Bavarian Code.
Feuerbach's advanced Bavarian Code immediately served as a model and as a
343
MODERN TIMES
63]
roiiiuhitioii for
[Pakt
-
I,
Titlk
The
criminal procedure
the " General " as well as the " Special " portions.
Even
at the
present time one can utilize as a not unprofitable source of instruction the often quite thoroughgoing debates of the legislative as-
Cf. Slenqlein,
Mnchen,
Strafgesetzbchern"
'
Leonhnrdt,
(4 vols.
1845-1849).
fr das Knigr.
344
Chapter XV]
63
principles
" All convicts are to
l^e
As
far as
work or
in
of
which
" C/.
"Knigl. Sachs. Criminalgesetzbuch", Art. 8, 22. "Commentare" by Weiss (2 Parts, 2d ed. 1848) and Held and Siebdrat (1848).
Cf.
von Wchter (previous note), pp. 35, 30.
^"Knigl. Sachs. Criminalgesetzliuch", Art. 7.
^
Cf. also Herrmann, "Zur BeurthciUing des Entwurfs eines Criminalgesetzbuches fr das Knigreicli Sachsen" (183()).
^ As to this Code,
cf. Miller inaier, "Archiv des Criniinalrechts" (1838),
In this Code (which for that period was a rehitively mild
pp. 319 et seq.
one) there was capital punishment for most cases of robbery, for extortion, incendiarism, and for one case of perjury.
Penal servitude for life
was used frequently.
'""Voluminous "Commentare" by Hepp (2 vols. 1839, 1842) and
Hufnagel (3 vols. 1840-1844).
" 1841, 1844, 1845.
'2 "Criminalgesetzbuch
fr das Herzogthum Braunschweig nebst
Motiven"
(1840) by Breymann.
confers upon the courts an apparently extensive right of leniency
where there is a coincidence of sc^veral mitigating circumstances. However, cf. the restrictions upon this right of leniency in respect to high
treason and most cases of murder, in 81, 145.
''
()2
345
MODERN TIMES
03]
would by virtue of
of the sentence.
" Convicts
.
[Part
who themselves
I,
of the
him an aggravation
of the penalty
prison
Title
Grandduchy
of
Hesse
^^
with the
was prepared
Code, although rather prolix, and, especially in its " General Portion ", allowing little range for judicial practice and legal science.
This code recognizes three varieties of imprisonment, the penitentiary, the
^^ is
tress
jail.^^
Imprisonment
in
a for-
6,
1S45.
and often much given to deThe so-called Thiiringian Code which by agreement went
tail. ^^
into effect in 1850 in Saxe-Weimar, Saxe-]\Ieiningen, CoburgGotha, Schwarzburg-Rudolstadt, and Anhalt-Dessau, may be regarded as a development of the Saxon Criminal Code, although
in
all
directions
" The Brunswick Code almost without change was published for LippeDetmold on July 18, 1843.
15
Breideubach,
gesetzbuch", 1st
vol.,
only).
^'^
I.e.
Art. 11.
"The court may, after a careful investigation of the private
position and education of the offender assign the carrj-ing out of the
punishment of the reformatory to a fortress or some similar institution."
Cf. similar provisions in the Code of Baden, 52, 51.
1* The Code of Nassau of April 14, 1849, was merely a modification of
that of Hesse.
1' As to the
Puchelt,
346
Chapter XV]
year
184.S,
and partly
63
As a result of the
in
consequence of the
"
Fundamental Rights of the German People ",^^ published December 27, 1848, corporal punishment and the death penalty were
abolished in a number of the German States. But many States
later reintroduced the
spring of 1848
The
ing.-^
many
the Confederation
^'^
on July
of Saxony of 1855,
Code
character.
and
in
(of
may
enactment of
Kingdom
of the
be regarded as a revision of an
1838), although a revision more extensive in
respects
also
many
In spite of
many
6,
of a reactionary character.
earlier
excellent features,
exhibits the
e.g. in
it is
not of merit,
'-'
"
347
MODERN TIMES
G41
()4.
Legislation in Prussia.
(lovelopmcut in
I'russia, wliicli
[Part
I,
Title
began
February 20, 1799, dealing with theft and other crimes against
This was so ambiguously expressed ^
that there was room to doubt whether it really represented a more
vigorous repression of the offenses in question, or whether (as
viewed by some courts) it introduced milder punishments. Since
the Prussian penal institutions - were for a large part in a state of
utter neglect,^ the remedy ^ was for a time sought in the expedient
of flogging, which was specially recommended and employed
(especially for suspects, who were in this way brought to a confession).
At the same time, that fear of demagogues and revolutionists so long entertained in Prussia began to bear fruit in provisions
of
orders.
ber of
to publish a
legislative
power
'
Cf. e.g. 2: "He who for the first time is convicted of an ordinary
theft shall undergo corporal chastisement, or, if such punishment is not
feasible (?) or should be deemed insufficient, shall be sentenced to imprisonment in a reformatory institution, to solitary confinement, or to
penal labor."
"More severe (?) chastisement shall be inflicted
7:
if, etc."
(The amount of ordinary chastisement was not fixed.) IS
ordered imprisonment imtil pardon, for repeated thefts accompanied A\th
violence.
12 in addition to Ufe imprisonment also pro\'ided branding
and pubhc flogging for repetition of the crime of robbery.
2 As to the horrible building conditions of many institutions, in which
cleanliness was absolutely impossible and the prisoners were consumed by
vermin, cf. the work of the Prussian Minister of Justice Von Arnim,
"Bruchstcke ber Verbrechen und Strafen" (2 vols. 1803), in which
the harmful condition of the Prussian system of criminal justice was portrayed with great candor.
Concerning
Cf. especially II, pp. 189 et seq.
the pitiful treatment of sick prisoners, cf. II, p. 78. But cf. also I, p. 235
and II, p. 39 as to the agreeable life in other penal institutions.
' The dilemma as to what to do ^^ith prisoners led even to a cabinet
order of Dec. 28, 1801, which under certain conditions contemplated deportation to Siberia. This was actually done.
Cf. Wagnitz, "Ideen und
Plne zur Verbesserung der Polizei- und Criminalanstalten " (Halle, 1801),
II, pp. 17, 43.
* As
to the repulsive effects of this flogging in a famous (or rather
notorious)
trial, cf.
Von Arnim,
I,
pp. 38
348
el seq.
Chapter XV]
itself.'
Nevertheless, nothino;
came
of this other
64
than a number of
Count Dankelmann
as ^Minister of Justice) sought to warp the legtowards the standpoint of the police regulation of the
" Landrecht," and revised it in an ultra-reactionary spirit. The
provisions of the draft appearing in 1836 are almost incredible.^
Aggravated forms of the death penalty, as well as corporal
chastisement (to be administered publicly!), again make their
appearance.
It is impossible here to undertake to follow out in detail the comislation
One may
Criminal Code.
draft of 1843
''
to
its
work
But
it is
as-
more
and
also
service.
The Code
vacillations,
of 1851.
The
exhibited in a
in all
Cf. the publication permit for the " Criminalordnung fr die preussisehen Staaten" of Dec. 11, 1S05.
For example,
Bcrncr, pp. 224 d seq., gives a selection of examples.
the dissemination of i)rinciples and opinions which tnifj:ht incite or encourage treasonable plots or sentiments was punished by from two to six
years in the penitentiary.
'
Cf. especially Bcrncr, pp. 226 et seq.
^ The draft appearing in 1849, based upon the decrees of a commission
of the Department of Justice, contained substantially the provisions of the
later code.
''
349
MODERN TIMES
()4]
[Part
I,
Title
It revealed a step in
remarkable for a brevity of composition, avoiding superrejection of all pedantic vagaries, and therefore
by the greater freedom which it allows for the scientific regulation
of the provisions of the " General Portion."
It also resembles
the French Code in that (more perhaps than any other of the earlier
German Codes) it is adaptable to use under the jury system. It
bears a further similarity to the French Code in being free from
moralizing and theological tendencies, and generally (but not
entirely) ^^ free from that meddlesomeness which we encounter
in so many provisions of the earlier local legislation.
It adopts
the triple classification of punishable acts as " Verbrechen ",
" Vergehen ", and " Uebertretungen
" Special Por'V- and in its
"
tion
completely separated the last class of offenses from the two
other.
In an appendix it deals with only some of the offenses
against police regulation.
On the other hand, while it places limits
upon punishment for " Uebertretungen ", it extends to them a
number of the most important provisions of the "General Portion."
The Code possesses considerable advantages over the French
Code. The " General Portion " was conceived in a comprehensive spirit, under the influence of German jurists.
The various
sian
is
fluity
and the
^ Cf.
Goltdammer, "Materialien zum Strafgesetzbuehe fr die preuss-r
ischen Staaten" (1851, 1852); Bescler, " Commentar " (1851); Oppenhoff/'as Strafgesetzbuch fr die preussliehen Staaten, erlutert aus den
JMaterialien, der Reehtslehre und den Entscheidungen des Obertribunals"
(6th ed. 1869); Temnie, "Lehrbuch des preussl. Strafreehts" (1853);
Hlschner, "System" (2 Parts, 1855, 1868, not completed; Part I contains the "General Portion"); Oppcnhoff, "Die Rechtsprechung des
knigl. Obertribunals in Strafsachen"
"Archiv fr
(1861 et seq.).
preussisches Strafrecht", established hy Goltdammer in 1853, in 1871
changed to "Archiv fr deutsches und preussisches Strafrecht", and still
appearing, ed. Kohler, a volume annuaUj'.
1
Cf. Mittermaier, "Archiv fr preussisches Strafrecht" (1851), pp. 14
et seq.
"This
( 101)
350
Chapter XV]
offenses are
more
carefully
G4
is
appeared originally
in 1810.
Xo mention is made of corporal punishment, and imprisonment is simply divided into two kinds ^^ imprisonment in a
penitentiary and in a jail.^^ There is also, for certain offenses, confinement in a fortress, which, while very mild in character, might
possibly be of long duration.
Apart from murder and high treason.
the death penalty is provided for grave cases of manslaughter and
for crimes endangering the general public
but it is to be inflicted
it
many
respects and especially in regard to its theories of parand attempt, this Code too closely followed the French.
Those provisions copied from the French law (in many respects
commendable), which permitted the consideration of mitigating
circumstances in manj^ cases (but by no means in all) merited censure for this very inconsistency, and subjected the necessary
severity and logic of the law to the sentiment of the individual
jury.
Many of the separate provisions are quite severe, and a
In
ticipation
It
may
of carrying out
much
the
apart from the fact that enforced labor of those confined for
" Lebertretungen " fell into disuse, the treatment of convicts de-
tice,
"
I.e.
"This divided
tretungen."
in
Preussen"
351
MODERN TIMES
G5]
[Part
T,
Title
The
States to take
it
was absolutely
practical useful-
own
of smaller
criminal legislation.
as law in
of
Thus, also, in Anhalt (by the statue of Feb. 5, 1852). Here however
was supplanted in 1864 by the Thuringfian Code. Cf. Berner, p. 257.
Thus the Code of Lbeck did not recognize permanent less of privileges dependent upon honor, but only a temporary interdiction of these
privileges.
An attempt was always given a milder punishment than the
consummated act. As to details, see Berner, p. 257.
^ A comparison of the Oldenburg and F*russian Code has been made by
Mittermaier, in "Archiv fr preuss. Strafrecht" (1859), pp. 14 et seq.
* Limitation of the period within which punishment may be inflicted
for crime was treated in quite a different manner.
In this respect, how'
it
is
352
Chapter XV]
this latter,
Upon
[66
is
appreciably
Kurhessen."
^ F'or the two Grand duchies of Mecklenburg the following were especially important
a comprehensive ordinance concerning theft of 1839,
an ordinance of 1843 concerning offenses against pu])li(' order, and an
ordinance of 1854 as to incendiarism. As to the condition of tlu> law in
the above-mentioned countries, cf. "Motive zu dem Entwrfe eines Strafgesetzbuchs fr den norddeutschen Bund", pp. 6 et seq.
:
Ed.]
[1849] eines Deutschen Einlieitsstrafrechts " (Berlin, 1012).
- As to the condition of the law in Hanover. Schleswig-Holstein,
Electoral Hesse, Nassau, Hessen-Homburg, Frankfurt-on-Main. at the time of
the annexation, cf. Goltdammer' s "Archiv f. preuss. Strafrecht" (1866),
pp. 657-816.
^ In Lauenburg, wliich was not really absorbed by the Prussian State
until 1876, the common law in the meantime continued in force.
353
MODERN TIMES
GOJ
2()th
of
the North
[Pakt
German Confederation
placed criminal
Title
1,
'
V
of
amonj^
those subjects over which the scope of the legislative power of the
North German Confederation should extend. And, in pursuance
Minister of Justice
'
sian
Code
severe
as
e.g. it
reduced the
its
foundation.
maximum
In numerous respects
mands
It was,
however, considerably
less
of legal science
particularly in
made
acts
upon capacity
honor or
trust,
a rule
much
to the
354
Chapter XV]
The
07
in
matters of criminal law the entire territory of the Confederation as a single territory/ notwithstanding the fact that the
Confederation did not constitute a homogeneous State. For as
treating in
a matter
by the de-
influenced
by the
it
even
Confederation as well as against the Confederation itself,
where this crime was committed with a view of helping some other
one of the confederated States. Obviously, a code complete in the
sense that the application of
all
None
field of legislation
be
left to
of the codes
It
was nec-
the individual
Care was to be taken only that the unity of the law should
not thereby be destroyed, that the individual States adopt lofty
principles of punishment, and that no penalty should be imposed
States.
for acts
spirit of the
the limitations of
its definitions.
There
deficient in respect to imprisonment.
were only a few general provisions which enlarged or restricted the
field of local legislation, or (where this was insufficient) of the regu-
The
draft
was quite
However, a uniform and thorough-going regulation was not practicable without providing for numerous incidental details, and
particularly for the undertaking of costly and permanent buildings
and this would have meant the postponement of the entire statute.
There
7. The Code of the North German Confederation.
;
MODERN TIMES
67]
[Part
TiTLE V
I,
This
31st (lay of December, 18G9, submittefl to the Chancellor.
who
Leonhardt,
cluiirmanship
of
at
commission was under the
that time was the Prussian Minister of Justice, and among its m(jre
prominent members the above-mentioned Friedberg, and Schwarze,
tlie
Attorney-General of Saxony.
gave
its
The Bundesrath
promptly
was presented
also
its
enacting
Character.
It
is
to produce a
new
legislative
work
of general application,
and to
members
of their fami-
were treated in a different manner, according as there was involved the ruler of the offender's nationality or the ruler of the
" General
territory where the act was committed.
47 of the
lies
tences to prison (" Zuchthaus ") " ipso facto " affecting the right
to hold positions of trust and honor, in that
this character
had as
to serve in the
army
its
or
by
28 a sentence of
immediate consequence
navy
of the Confederation
loss of
capacity
and permanent
1 Consequently
offenses ("Uebertretungen") were no longer dealt
with in a third part but were treated in a single (the last) chapter of the
"Special Portion" (second) of the Code.
35G
Chapter XV]
67
debate
tag, by a majority of ILS votes to (SI, voted for the abolition of the
death penalty. (It had in the meantime been abolished in the
Kingdom of Saxony.) The Bundesrath, howe\'er, by an overwhelming majority, voted to retain the death penalty for murder
and
On
the Chancellor, Count von Bismarck, had cast the weight of his
authority in favor of the retention of the death penalty, the Reichstag,
both
in this
matter and
in
together with
its
May
was pub-
The number
The
was extended
to a greater
number
of offenses.
Men-
357
MODERN TIMES
{)7\
made
of the
[Part
supplement to
I,
Title
113^ of the
'rimi-
Criticism
"
buch
was
Strafgesetz-
essential merit,
Its
lightly esteemed,
consists in laying the foundation for uniformity of criminal legislation in the region included within the Confederation.
over,
it
States, notably
e.g.
for Prussia
More-
It
it
many important
respects
it
produced
faults
and defects
is
Much
a circumstance which
more
theory
tiate
is
it,
responsible for
its
with the Code or the history of criminal law. There was not
sufficient time for the jurists to make a thorough-going and comprehensive criticism of the draft of the Code
and mere
theorists, in
drafts.''
The
vidual features.
The Code
the Empire.
of the
358
GERMANY SINCE
Chapter XV]
1813
68
sult of the
The changes
incident to this
''
by the Statute of May 15th, 1871, dealing with the revision of the
Criminal Code of the North German Confederation as the Criminal Code of the German Empire.
A defect
68. The Criminal Law Amendment Act of 1876.
of the Code, which in some of its aspects has l)een previously criticized and wdiich even at the present time often leads to decisions
is
private initiative).
The unfortunate
features of the
last-men-
tioned principle and the urgent need of their remedy soon became
On
was extended
to too large a
number of offenses.
A new
Here the
its
corresponding attributes."
359
MODERN TIMES
G8]
[Pakt
Title V
I,
a " nolle prosequi " at the arbitrary discretion of the party injured (or his legal representative, as the case might he), had been
given too wide a range in criminal procedure (extending even to the
time of the final judgment or sentence).^
The bill for a statute amending the Criminal Code {i.e. " Strafgesetznovelle ") which the Bundesrath, in November, 1875,^ submitted to the Reichstag, went far beyond the elimination of this
A case arising in Belgium,'' involving a frequently uttered
defect.
life
its
of
more
").
It
seemed dangerous
By
to bring about
and
of broader
a stricter sup-
politically.^
the Criminal
enacted after a
enacted.
The
so-called
" ineffectual
incitement
to
crime "
'
'
Cf.
the official
than four years after the Code went into effect as the
law of the Empire and less than five years after it went into effect in the
territories of the North German Confederation and in Hesse.
3 Cf. the Belgian Statute of July 9th, 1875.
The
ease of Duchesne.
^ The ease of Count Harry von Arnim. Concerning this, see the
2
This was
less
opinions given
by von
in
der
360
Chapter XV]
68
On
some
amount
cases, to
This
rule,
\-irtually, in
may
of
extended this
by
14 of the Statute of
ute of
November
of trademarks
07 of the Stat-
legal status
and
comprehensive Imperial
Justice Act (October 1st, 1879) 281-283 of the Criminal Code,
dealing with criminal bankruptcy, were supplanted by 209-214
of the Insolvency Regulations of February 10th, 1877.
marriage.
effect of the
institutions of the
the needs
of special
sig-
(and
supplies, etc.,
usury.
to
difficult,
moreover, to
dealing with
may become
however
in respect
And
this
amount
361
socialistic
tendency of
MODERN TIMES
(j<)j
(')0.
1880
legislation siiiee
is
of
1909.'
[Paut
The
TiTLK
I,
history of riorinaiiy's
Germany and
its
The
Code
professor in the
University of Berlin.-
both
field of
and
been Franz von Liszt,
ehief leader,
in proposals for
Among
in science
who
those
en-
This superb undertaking, the " Comparative Exposition of German and Foreign Criminal Law "
is a
mine of information on the criminal laws of all countries.
world's criminal law.
''^
from
quarters.
all
From
the time of
its
Some
Deutschen Juristentag,
Verhandlungen "
and
"XXVI
Berlin,
1902.
'
^
"Mnchener
den, 1901.
'
362
Chapter XV]
69
site views, it
doubtedly
it
and a
Un-
radical advance, in
many
is itself in
XXI,
p.
224 (1914).
363
Chapter XVI
1800
A. Austria
69a.
69a.
Von Schmerling,
]\Iin-
was improved
any respect a mild
penalties
of
termed
in
Codes,
it
substituted
for
one.^
" serious
police-misdemeanors "
the
'
except the
which
from
63 of
compiled by paragraph,
Dr. L. von Thot for
volume
author, see the Editorial Preface. Ed.]
There were two grades
imprisonment, ordinary, and severe.
[This section
Von Bar's
treatise
first
is
this
is
for this
2
of
signified close confinement, without chains
no conversation
with a \'isitor except in the presence of a prison officer. The latter signified
solitary confinement, with iron shackles
\asitors allowed only on ex-
The former
traordinary occasions, and relatives never. Special features for increasing the severity of treatment were: limited food, hard bed, dark cell,
flogging.
[In Silvio Pellico's " Le Mie Prigioni" will be found a realistic account of
the severe kind of imprisonment, as practised in Austria in the 1820 s.
Rd.]
Supreme Court.
364
Chapter XVI]
69&
and
in
of
B.
696.
Netherlands.
69c.
Belgium.
Netherlands.
The Revolution saw two early but
attempts to reform and codify the criminal law the work
of the Commissions both of 1795 and of 1798 did not obtain legislative sanction.
A new Commission Reuvens, Elout, and Van
{]9b.
fruitless
Musschenbrouk
appointed in 1807, produced a draft which
was enacted and went into force February 1, 1809. King Louis
Bonaparte's ordinance styled it a " masterpiece of humanity "
;
^ Glaser began his professional career in 1849, with an essay on "English-Scotch Criminal Procedure."
He became a professor at the University in 18.56, and a member of ParHament, and took a zealous and
His writings
leading part for the reform of criminal law and procedure.
on the subject are profuse.
1912 a new draft was again prepared: "Regierungs-Entwurf
The text and commentary
eines Oesterreichischen Strafgesetzbuchs."
are officially published as a Supplement to the Proceedings of the House
the House Commission's
of Peers, in 1912, No. 58, black letter No. 90
Report on the bills, in 1913, as Supplement Nos. 58-63, l>lack letter Xo.
167.
The text and commentary have also been pubUshed by Guttentag,
BerUn, as Supplem(>nt No. 29' to Vol.
of the "Mittheilungen der
Internationalen Kriminalistischen Vereinigung."
'
[These sections were pn>i>ared by Dr. L. von Thot for this author,
see the Editorial Preface.
Ed.]
Mn
XX
365
MODERN TIMES
{yi)h]
[ParT
I,
TiTLE
Thus,
compulsory hard labor, and death upon the scaffold were abolished.
inflicted by strangulation or by the sword.
A royal ordinance of April 18, 1814, again appointed a commission to prepare a reformed legislation. This commission was
ready on January 17, 1815, with a revision of the Code, and its
draft was again revised by a sub-committee, Kemper and Philbut it failed of enactment. In 1827, the government again
lipse
laid a revision before the Senate, this draft corresponded in its
general part with the Criminal Code of 1809, but in its special part
But as it was still based
(specific crimes) with the French Code.
upon the old-fashioned deterrent theory, and its penalties were
exceedingly severe, the government was obliged to withdraw it.
The next revision was not proposed until October, 1839; mean-
among
De Pinto, M.
Francois, J. Loke, A.
366
Chapter XVI]
two parts
its
[ 69/
the simplicitj' of
its
penal system the abolition of humiliating penalties the important part played by solitary confinement the careful definition of
the acts liable to punishment in respect to their subjective ele;
ments
9c.
and the abolition of special rules of mitigation.Belgiiun became a separate kingdom in 1830-33.
its
The
inde-
C. Scandinavia
69d.
69e.
Denmark.
Norway.
()9f/.
Denmark.
Danish
G9/.
Sweden.
69g.
Finland.
1800 s was at first only partial in its scope. The statute of October
4, 1833, punished crimes against corporal security and liberty.
The statute of April 11, 1840, punished theft, fraud, forgery, etc.
The
statutes of April
1840,
15,
and March
In the year 1850, a commission was assigned the work of preparing a draft of a complete
criminal Code.
in
1859.
Code
of a
time, which
went
into
efi'ect
on Feb.
With
in force at
10, 1866.
the present
- Drafts of a new Criminal Code have since been prepared, but without
enactment, by the Ministries of Cort van der Linden, in 1900 (pub.
Belinfante, entitled "Herziening van het Wetbock van Strafreeht"),
and of Loeff, in 1904 ("Ilandlingen der Staaten-General", 1904-05, Band
The subsequent ministries of Xelissen and Regout. in 1911 and 1912.
80).
have abandoned the plan of a complete revision, and have sought to revise the Code piecemeal, by separate bills from time to time.
[These sections were prepared by Dr. L. vox Thot (for this author,
except (39f/, on Finland, which was prepared
see the Editorial Preface)
by the translator, Mr. Walgrcn, from Professor Forsmann's treatise,
'
Ed.]
367
MODERN TIMES
09e]
tiint later
[Pakt
I,
May
Title
11,
1897,
Norway.
Q9e.
modern
of April
In
the
Norway
criminal codification
is
found
1,
movement
first
toward
provisional ordi-
his
Vogt as president)
into effect
on January
1,
1905.
Its dis-
Sweden.
In 1809, Parliament appointed a commisunder the presidency of Professor Holmhernsson, to prepare
69/.
sion,
Parliament
now has
"Udkast
til
368
Chapter XVI]
Q9g
After
revisions.
considerable
criticism
by
numerous
jurists
statutes,
abolition
abolition of whip-
and personal
slaughter,
injuries;
method
of solitary confinement.
Finland.
After
union
the
of
Finland
with
Russia,
The
in conflict
with the
severe
ciently
were made
1
spirit of
punishment
in the interim.
A new
many
offenses,
provisional code
is
369
partial
was
suffi-
reforms
also prepared,
MODERN TIMES
G9/i]
new Code
slunild
[Pakt
l)e
completed
I,
but
it
Titlk
it
failcfl
abolished
enacted
punishment.
in 1S07, but
its
1894.
D. Switzerland
First Period
69h.
Second Period
69i.
to 1830.
1830 to 1848.
came great
To
since 1848.
With the
1830.
activity.
legislative
The
tism.
Third Period
69^.
First Period
69/i.
zerland
French Code of
In the
first
common law
place, Switzerland
nor had
single
of crimes
and generalizations,
it
of the new-style
And
Codes were
alien to
prisons,
^
new
of Dr. L. Pfenninger
ace.
Ed.]
scientific
370
was a car-
and work,
Chapter XVI]
[ 69/i
German Code
itself.
Code; and the French and the German Codes of 1810 and 1813.
Gradually this complex of authorities was superseded by codiBetween 1805 and 1830 five more Cantons adopted
fication.
Codes (in St. Gall, indeed, twice over, 1807 and 1819). During
the same period and until 1838, in Germany, only one Code
though numerous
was enacted
Feuerbach's, for Bavaria
drafts were
worked upon.
due partly to
methods
demands made
which would
it
satisfy
the law.
It is frequent to speak of the Swiss Codes of this period as mere
imitations of either the French or the Austrian or the Bavarian
Code.
In one important
by avoiding the
criticize in
the
German
MODERN TIMES
69;]
[Paut
I,
TiTLE
toric traditions.
needs or his-
In
GO/'.
Second Period
1830 1848.
Most
of
preserved
its first,
kept closest of
Common
all
to the
and
European
The
judicial discretion.
attempt,
German
type.
accomplices,
legislation,
were simplicity,
lenity,
conspiracy,
etc.,
notably
exhibit
this.
man
codes.
Thurgau only
legislation, Avhile in
Germany
Third Period
it
From
since 1848.
372
Chapter XVI]
69j
table feature
of
by enlargement
it
was the
first
Codes, as in the
German ones
iii
of the
same
to abolish
In the Swiss
period,
is
seen a
more
Imprisonment
with hard labor was applied with the greatest diversity of terms,
varying from a few months to a life-time
ordinary imprisonment was used with equal variety imprisonment in chains was
;
all
but three
in all
The
codes) a
marked
German
legislation.
simplicity
known
crime,
i.e.
the crime of
an offense
universally preserved
the German
and punished
Saxony's Code by four years' imprisonment was almost
failing to
do so or
in
offender
legislation,
e.g. in
pages.
different spirit
In the
from that
first
of
Germany was
totally
and seventy
sections.
The
German
gained
well-disposed
MODERN TIMES
G9j]
[Paht
I,
Title
might now come into the grasp of the law for acts and utterwhich
a suspicious government and a facile judiciary chose
ances
as offenses under the new definitions.
As late as
interpret
to
citizen
1866,
Holtzendorff's
Professor
" Journal
of
Criminal
Law
"
And,
is
rate particularity.
for the four chief
and five hundred and thirty sections, while the Swiss Codes
ranged between one hundred and fifteen and two hundred and
ninety sections, except for three which reached three hundred
fifty
and fifty.
Meanwhile,
general feature
definitions of offenses
and the
of the
The Fed-
ging;
influence)
concreteness,
and avoidance
of theorizing.
Since
and wrongful
arson, robbery,
distress) there
From then
374
Chapter XVI]
The
69i
375
PART
II
CHAPTER
I.
CHAPTER
II.
CHAPTER
III.
CHAPTER
IV.
CHAPTER
V.
CHAPTER
VI.
377
Chapter
of
71.
tion.
72.
Importance
Practical
Socrates.
The
Sophists.
Plato.
73.
74.
Aristotle.
Influence of Aristotle.
The
Stoics.
The Epicureans.
Scepticism.
Roman
Philosophy. Hierocles.
Practical
society in general.-
Among
may
379
70]
the
riglit
arises
How
is it
[Part II
is
(and as such must criminal law after all be regarded) may require
an injury of the wrongdoer, while in private morals, rules such as
" Love your enemies ", " Do good to them which hate you ",
" Pray for them which despitefully use you " find (not always
P^ven
practically, but at least theoretically) absolute acceptance ?
the purely practical individual, who is not affected by doubts of
this character, will at times be confronted with the question
whether the State, when it punishes one act and not another, or
remodels its legislation in accordance with this or that tendency,
He will have occasion to consider
is pursuing the proper course.
whether the axe and guillotine should be regarded as relics of
former barbarism and persistent error, or as exemplifications of
the supreme and ultimate law of human or even divine justice.
Now these questions are of immediate practical importance,
at least for the legislator, and their determination will also be
indirectly reflected in the practice of the courts.
For example,
been adopted by the State for the sake of accomplishing certain purposes.
so-called "mixed" theories ("Coalitionstheorien") seek to reconcile
the various theories of criminal law, and especially the absolute and the
relative theories of the foundation of punishment.
A reconciliation of
the kind last mentioned is conceivable in various ways.
Thus, for example, one may give punishment an absolute foundation but modify or
limit its exercise in accordance with purposes of expediency in attaining
certain results.
It may also be undertaken to prove that the absolute
foundation of criminal law is not prohibitive of a regard for attaining"
certain purposes {i.e. beneficial purposes), but rather that it contemplates
such.
Those classifications are of a more superficial character which
make a distinction between theories of right and theories of utility (interest), according as the theories taken up assume a special legal right oa
the part of the punishing State {e.g. acceptance of a contractual submission of the crime to punishment, outlawry of the criminal as a result
of the crime), or are simply satisfied with reasons of utility or the empirical
indispensability of things.
The same can be said of the "Contractual"
theories ("Vertragstheorien"), the "Compensation" theories ("Vergtungstheorien"), and the "Restitution" theories ("Erstattungstheorien")
which found punishment upon a requisite restoration or removal of the
social injury caused by the crime, etc.
Heinze (p. 243) would insert aa
intermediate class between the division of theories into "Absolute" and
"Relative", i.e. those absolute theories which, without regarding punishment as of absolute necessity, yet find the legal justification of punishment
solely in the crime that has been-committed, and which treat punishment
as an absolute right and not as an absolute duty of the State, and also as
a privilege of which use may possibly not be made. However, it is difficult to definitely fix the limits of this intermediate division, and Laistner
(p. 180) has therefore declared himself opposed to it.
More detailed
and minutely classified survej^s may be found in Bauer, "Abhandlungen
aus dem Strafrechte und Straf processe", I (1840), pp. 28 et seq.; Hepp,
I, pp. xiv et seq.
They have the fault however of presenting the theories
only in part or strained to suit their methods of classification.
The
380
Chapter
I]
the courts
will
71
tain times they have the right, although keeping within the stat-
some
make
individual.
a public example of
What
1.
What methods
acts are to
punishment shall
the State employ? 3. What are the considerations which should
influence the State in varying the degree of punishment? Apart
from adherence to habit and a blind following of tradition, these
questions are not to be answered until the fundamental principles underlying criminal law itself are first established.
For it
is by these principles that the scope and form of criminal law are
2.
of
to be determined.
The
71.
Beginnings
tionable in the
Speculation.
of
many
numerous and
Just
as to-day the
was
it,
at the beginning of
who
first
of the gods
offender
{i.e.
and deterrence
of others,
all
reformation of the
screen
principles.
As
thoroughgoing
attempt began
with the Sophists. Protagoras ^ definitely abandons the idea of
" He who desires to inflict punishment in a rational
retaliation.
manner," says he, according to Plato,'* " chastises not on account
of the wrong that has been committed
for that which is done
The Sophists.
investigation
deserving the
name
of
first
scientific
CJ. Laislncr, p. 8:
Cf. Plato's
b.c.
"Protagoras", 324,
381
72]
cannot
l)c
undone
but rather,
[Paht
II
The
when we
inflict
justifi-
who
since without
them human
is
society
impossible.
To
be sure, a
is still
opulent.
fulfilment.
Socrates.
common
what course
of action
of benefit.
INIoreover, this reference to the acquisition of benefit
served merely as an " a posteriori " demonstration of an assumed
divine regulation of things.
Plato.
of things
is
definitely
C/. Zeller,
existing,
is
382
and the
regarded as
I, p.
921.
its
Chapter
I]
imperfect
reflection.
This
ideal
of
divine
regulation
72
thus
The
same time
receives
tice itself is
'
"Gorgias", 472e.
"Gorgias", 473c.
383
il/wHer,
I,
p. 431.
.sa^cs
efi'ect
lIITRY OF
72]
[Pakt
II
the individual
harmony.
may
While the
deterring others
is
is
not a prin-
human
calculation.^
As against
harmony
of
this latter
used in the ideal State,^ the philosopher loses sight of that con-
In the
"Laws"
this concession,
made by
the imperfect visible world, recedes into the background, and the
human
The
With
deep insight Plato realized that that form of legislation is best which,
through the punishment,^ also tends to arouse in the criminal
'
"Gorgias", 525a,
b.
"Republic",
III, 4056.
384
Chapter
I]
72
tried
and deterrence,
later
than
This practical attitude of the State, which may not
arrogate to administer divine justice, explains his abandonment of
incorrigible himself to die
to live.^
tradictions.
in
the
in
in
the future.
obvious con-
reader
believes
than
real.
The
is
ultimately
Cf. p. 909.
legislator sees
is
incur-
[Jowett.]
* The passage in the "Laws",
V, 72.S, which designates association
with the wicked as the greatest of penalties does not, as Laistner (p. 27)
has it, refer to punishment inllicted by the State.
" ov yap rdyeyovoi dydv.iTov tarai ttot^."
^ "Laws", IX, 934:
385
73]
based,
is
[Paht
II
It is
do with
real and existing conditions, or whether it has as its basis an ideal
Plato ofi'ered absolutely no soluthat is never to be attained.
concerning
relation
of the ideal and the actual.
question
the
tion to
Consequently a reconciliation by him of the relative and absolute
foundations of punishment is not to be expected.
Aristotle's theory of criminal law is unique
73. Aristotle.
often
(liffieult
it
stands quite by
itself
in
ancient times.
All
other ancient
when
He
who
that punishment
Aristotle
and
is
makes a
obligation to punish.
He
Ibid., 5, 1.
386
7.
Chapter
I]
74
punishment.
The
relation
between
justification in punishing
and
obligation
to punish
is
different significance.
Here
in Aristotle, as in Plato,
So sharply marked
is
punishment
this mean-
is
exercising vengeance.
adhered
to.
It
intended results,
is
The banishment
reformation.
is
is
considered meritorious,
is
we
^)
are indebted
view, however,
Tliis
is
untary contract.
problem
in
rights.
An
"Eth. Nicom.",
"Rhet.", I, 10.
II, 3, 1.
* I.e. "aij^7,<ns."
"Eth. Xicom.", X,
'
Ihi<l., 9,
387
Ibid.,
V,
9.
8.
9. 3, 8, 9.
74]
State,
either
self-sufficiency,
[Paut
II
and Jiis
an unbroken
The author
destruction.
of evil
expediency.
If
maxims
of convenience
and
make him
According to this
punishment which shall
the party punished. To undergo
conception there
is
no need of a basis
for
justify
pp. 34
ct seq.
^
't6 yap KXdipai oiiOi avrb 'Ett^kodpos airo4>a.lvei KaKv, iW to iTretriv",
Epidetus, "Diss.", Ill, 7, 12.
Cf. Hildenbrand, "Geschichte und System
der Rechts- und Staatsphilosophie", I (1860), p. 516.
38S
Chapter
I]
74
while
which
The
renounces
it
all
Roman
Philosophy.
attain to a system of
tion of Stoicism.
rested essentially
its ow^n,
But
(as
was
in
regarded
acknowledged
it
It
must be some
while
it
did not
keeping with
its
tendency to
it softened
the harsher conclusions of Stoicism through broad humanitarian
Cicero
AVliile,
by the Roman
jurists,
against the individual offender, and sometimes also of retaliation with no ulterior motives, were introduced merely for the
of individual practical observations and decisions,
an almost Christian sound to their words. According to
Epictetus, the wise man should regard even the greatest criminal
as one unfortunate and confused, and should not be angry with
justification
there
is
"De
Off.",
I,
25
(89).
sint
(faciat), et ceteri
ad injuriam tardiores."
"De
in L. 6
Cujus rei ilia ratio videtur, quod pcx'na constifuitur in emendationem hominum qu:e mortuo eo, in quem constitui \idftur, d(\>;init."
L. 9 3 D. "De off. proc",
Cf. also, L. 6 i. f. "De custod. reor.", 4S, 3
1,16; L. 1 1 D "De .J. et J."; L. 131 D. "De V. S." "...Poena est
transeat.
noxae vindicta."
Cf. also, e.g. L. 5.5 C. "De episc", 1, 3; Nov. 12, c. 1.
Heinze in Von HoUzendnrff'x "Handliuch", I, pp. 247,248. and especially
Abegg, "Die verschiedeneu Strafrechtstheorien", pp. 78 et seq.
389
74]
LAW
[Part II
him furthermore, he enjoins every one to work for the improvement of others. If we may (h'aw conchisions from other utterances of that estimable philosopher and pupil of P^pictetus, Marcus
Aurelius, who sat upon the imperial throne, he may have regarded
the cardinal idea of punishment as merely the reformation of the
"
to love
individual, since he considered it a mandate of morals
and assist those who have fallen and who do wrong.
In spite of numerous artificial expressions, Stoicism
Hierocles.
;
devoted to the province of ethics only a superficial attenThere was, however, in ancient times, an adherent of the
tion.
Neoplatonic philosophy, wlio had a deeper comprehension of
the problem of criminal law than was shown in these last outcroppings of Stoicism. Neoplatonism sought to bring the subjective tendency of Stoicism into alliance with the objective genas a result, it reproduced in
eral ideas of the universe of Plato
part Plato's views regarding punishment. Hierocles' ^ explanation of punishment was to the effect that the law, which did not
want evil to be done, maintained itself by means of punishment.
The good could not be indifferent to a breach of the law^, and respect
for the law must be restored in the oft'ender himself.
In accordance with this opinion, punishment was aimed at the act. The
person of the offender was unimportant, for, as observed by Hierocles, the object was to save the Deity from the reproach that it
was inflicting punishment upon the individual, and, on the other
hand, to preserve the idea of human freedom, without resorting
really
to a fictitious contract
made by
own
Concerning Hierocles
cf.
390
et seq.
Chapter
I]
74
prominence given
can be said that his
theory failed to demonstrate the justice of punishment from the
human viewpoint. ^lankind, since it must live and act in accordance with divine will, thus has the right to repudiate the deed as
a thing not to be condoned but (we ask) how does it come about
that it can lay hands on its author f The appeal here made by
Hierocles to divine law ^ is merely a confession that the philosopher
has failed to find the truth which to us seems so evident. There
is a very mystical sound (which reminds one of the modern " Soirees de St. Petersbourg " of Count J. de Demaistre) in Hierocles'
reject those ideas of retaliation allied with the
it
if
out,
it
sounds almost
these theoretical
alone
is
practical.
dissertations
had no
effect
in
it
when
ancient
The most
To be
sure,
it
to
ascertain
how
Christianity
theoretically
adjusted
itself
to
criminal law.
'
'Swdyei olv
viddaL 8i
6 vdfxos
ws ((prjrai
toi>s ire<f>VK6Tai
391
."
M ullach, p. 75.
Chapter
II
Changed Position
Views
7G.
of
Medieval Philosophy
by Thomas
Lack of Interest
of the Medieval Philosophers in Criminal Law.
as Exemplified
Aquinas.
of Chris-
75.
In
and often persecuted. In their doctrine such instituand the legal system found no part. Christianity
at first recognized only a Christian system of morality and knew
nothing of a Christian system of lau\ Law was regarded as superfluous,
brotherly love alone was sufficient.^ If all obey the
precepts of Christian love, no one would fear injur}' from another,
nor would any compel another to give redress. Since too high a
tolerated
could
afi'ord to
lay
down
The
"
the precept
its legal
system
concerned
but between
all in all.
first
oppressed,
'
Cf. P. Janet, "Histoire
Paris, 1868), I, p. 216.
2 Matthew, v, 39.
de
la philosophie
^
392
morale et politique"
/bj^/,^
xxvi, 52.
(2 vols.,
Chapter
II]
76
duty to oppose
it,
even though
it
institution.
When
Changed Position of Christianity as a State Religion.
was raised from its position of an insignificant sect
to that of a State religion, its earlier conception of law and the
State necessarily underwent a change. This was furthered by the
fact that the Church at first permitted, and indeed later required,
an active persecution of unbelievers. ]\Ioreover, when the State
Cliristianity
in the State,
human mind to find a way to harmonize the State and law as human creations with the Christian
system of morality. The problem to be solved was rather this
to find a way to bring the presence of war, pestilence, and other
longer encum})ent upon the
destructive
phenomena
of nature into
eternal
goodness of God.
70. Views of Medieval Philosophy as Exemplified by Thomas
Aquinas.
Thomas Aquinas,^ whom it is proper to regard as the
Cf. Helzel,
"Die Todesstrafe
in ihrer culturgeschiehtlichen
Entwick-
et seq.
The
subject to
th(> liiglier
'
393
niTOIlY OF
7(3]
guise from
liiniself
[Pakt
II
dis-
human
agencies went far beyond the " medicina " (as required by ChrisBut he satisfied himself with the
tian morality) of the offender.
reflection that the
ordained by God.
maxim
for the
especially
if
cina ") was justified on the ground that it was directed towards a
" coercitio malorum " (deterrence). He, however, was not of
is
is
is
was
down
far
in so positive a
distinction which
" lex humana "
the
reason,
and
human
The
reason
is
It has
all being, ordained of God.^
the duty of deducing from the " lex a?terna " definite conclusions,
but it cannot punish each and every sin in accordance with di\-ine
i.e.
justice,
" quia
dum
auft'erre
vellet
omnia mala,
sequeretur
^
This was
"Summa TheologiaB",
2, 1, qu. 87, n. 3, 4.
will beware.")
3
"Dieendum quod
Theologiae", II, 2, qu. 108, art. 3, n. 5
sieut Augustinus dicit judicium humanuni debet imitari divinum judicium
in manifestis Dei judiciis, quibus homines spiritualiter damnat pro proprio
xix,
"Summa
394
Chapter
II]
76
herewith that
Thomas Aquinas
humana
"
needs to be supplemented by divine {i.e. revealed) law.^ Consequently, it came about that since the Mosaic law was also regarded as revealed law, the principle of retaliation in its widest
sense was justified,
even
if
the
is
also
an invocation of
this
many
of the
7
8
L. c, art. 4.
II, 2 qu. 108, art. 4.
L. c. qu. 91, art. 2, qu. 95, art. 2.
395
70]
[Part
II
The
it then existed.
former were satisfied with the criminal law, since it granted (at
least in theory) the greatest possible protection to the Church,
discussing or criticizing criminal justice as
The
latter also^
power
God, were obliged to uphold the divine origin of
criminal law in its existing condition.^ At any rate, they had no
Casual
special motive to subject it to criticism and examination.
observations as to the application of punishment can interest us
little, when they consist solely of repetitions of passages from the
Bible, from Aristotle, and from the Corpus Juris.
The question naturally suggests itself: Whether, if the power
of the Papacy had been undisputed and the prosecution of heresy
had not been necessary, the philosophy of the ]\Iiddle Ages might
not have attained to a critical examination of the fundamental
elements of criminal law? The origin of the theory of the Law
of Nature is to be sought in the darkness of the INIiddle Ages.
This, together with the theory of the sovereignty of the peopIe,^
which based the power of the ruler upon the consent of the governed and was not unknown to medieval Europe, constituted a
sufficient foundation upon which the fundamentals of criminal
law could be developed through the operations of the human will
Immediately after the Reforseeking to attain rational purposes.
since they argued that the independence of the temporal
was ordained
of
and the
legal
This
is
and Suarez.^^ But at this point we encounter the narrowing and retrogressive influence of the Reforma-
396
Chapter
II]
76
prudence,
12
Hugo Grotius.
397
chapter of
"The
Prince."
Chapter
III
Grotius,
78.
Hobbes.
79.
Spinoza.
Pufendorf.
80.
Locke;
Writers.
ThoCoeceji
Leibnitz
Other
81.
masius
Wolff
Rousseau.
is still
Grotius' theory,
The most
there
is
to say for
it is
that
it
element of the positive law. In other words, this idea of retribution does not conflict with those conditions which, for the affairs
of man, are to be inferred from his nature and his inherent social
instinct (" appetitus socialis ").
Punishment is something which
" Crimen grave non
results directly from the nature of crime
:
upon Grotius by
punishment:
actionis ",
The
"Malum
passionis
quod
infligitur
ob
II, 20, 2, n. 3.
398
malum
more appropriate
was
II, 20, 1.
Chapter
III]
77
Grotius,
He
it
was only
is
for reasons of
so apt to
transgress
the limits imposed by reason, that the criminal law was placed
amount
of
punishment.
In
for
acts
Thus
II,
punishment by
i)ar(l()n,
and as reasons
for
'"
"Summa
399
77]
[Paht
acknowledged as
II
suffi-
On
ment
"
^ II, 20,
2 et seq., and in regard to this, Hartenstein, "Darstellungder Rechtsphilosophie des Hugo Grotius" in "Abhandlungen d. Knigl.
Sachs. Gesellschaft der Wissenschaften, histor-philosoph. Klasse" (1850),
pp. 529, 530.
^ "Nee enim sequum est, ut par sit periculum noeentis et innoeentis",
II, 20, 32, n. 2.
Cf. in regard to this Laistner, "Das Recht in der
Strafe" (1872), p. 64.
On these grounds Grotius under some circumstances approved also of the modified death penalties.
9
10
11
II, 1, 10, n. 1
II, 20, 28.
II, 20, 2, n.
3.
III, 1, 4, n. 2.
24, n. 1-3.
400
in
mind
Chapter
III]
had previously
stated.^"
",
78
as Augustine
Punishment
proof.
is
incidentally a right.
punishment
in
It
every case
is
essentially a
is
all this,
Hugo Grotius
of Nature
cretional
little
by
The adherents
little
Law
power to appear
in this com])act.
Influenced by the
Thomas Hobbes
The passage IT, 20, 3.^, is not correctly construed liy LaUlncr,
GO Anm. 4. Here Grotius does not say that the judfre should not
apply a severe criminal statute if ther(> is a {general custom of committing:
the offense in question.
He says merely that such a custom may he for
the judge a mitigating circumstance, wliile the legislator may linil heri'iu
a ground for increasing the penalty.
p.
401
78]
human
of
nature.
The
legal
evil
[Pakt
II
natural
attributes
individuals
of
Unlimited
speak more accurately, desire to injure (others,
appears to him to be the fundamental characteristic of human
The State, accordingly, is merely an institution for
nature.
selfishness, or to
all
on
all "
arising
selfishness
1 "De Give", c.
6, 4.
Cf. also "Leviathan", c. 28: "Poena malum
est transgressor! legis auetoritate publica inflicta eo fine, ut terrore ejus
"De
Give",
c. 3,
4.
402
Chapter
III]
78
prohibentur,
determinandum
est."
''
repudiated as absurd.^
exceeded, although
it is
is
past
is
expressly
legislator.''
The
justification of
assistance to those
deemed
it
whom
well to punish.^
But the
summa
potestas
"
the State.
is
^ "De Cive",
Here moreover ITolilies confuses the civil law
6, 16.
question as to how ownership, etc., arises with the criminal law question
as to what violations of once existing property constitutes theft, etc.
Ibid., 3, 11.
Ibid., 13, 16.
/5ic/.^ 6,
5; "Leviathan",
c.
28, init.
403
79)
[Part
by an
ethical regulation.
consists in
viz.,
Yet, as a principle,
it is
illumi-
may
to a certain extent be
Spinoza.
It is
it
in
their results.
This
is
in
we may add,
in respect
Thus we
to criminal law.
logico-politicus "
find in the
pose freedom.
But
if
of necessity determined
by the
fish
fish
the State.
to obtain
power
all
is
sufficient
404
non sana
Chapter
III]
is
jear,
which should be
79
felt
nisi
limitation of the
power
in
Spinoza's philosophy of
participation in public
life
in quiet
medi-
expect
much from
For
he does not
but he does demand
this reason
natural essentials of
investigation.
life
With the
else
freedom of
freedom of thought and religious faith, there was hardly an opportunity for such a sensitive and retiring disposition to have any
a conflict experienced by even
conflict with the criminal law,
noble natures
who come
405
80]
means
[Part
II
and
is
among
class,
of the State
to
all.
Samuel
his
Pufendorf.
work which
inflicted " al
and
is
offense.
406
Chapter
III]
'
80
principle of the " lex talionis " in criminal law, according to his
a "
i.e.
making harmless
In consequence
Pufendorf and of many
others), as applied to intentional homicide, the death penalty
under certain circumstances aj)])ears justified.
of this (and in accord with a fallacy of
This
is
resemblance to
his point of
Hugo
Grotius.
But unlike
Grotius, instead of having the State and law proceed from the
"
VIII,
C/. e.g.
"De
3, 17.
407
c.
5)
and
80]
[Pakt
II
So law and morality, in spite of the faet that Pufenseemed to deny their common source and original unity, are
It was a mistaken attitude on the part of Hobbes and
confused.
Spinoza to conceive the criminal law as a means of chastisement
(discipline), and not primarily as a protection, or (as it were) an
outer covering of the otherwise existing right, turned toward an
This aided the omnipotence of the State, but departed
aggressor.
farther and farther from the original starting point of Germanic law, which alone was able to give stability to the criminal
in
the State.
(lorf
law.
Leibnitz as "
homo parum
and although
his didactic
quite barren,
ill
particular
and
dialectic
And
in.
kings,
make
a strange
impression to-day.
^ Perhaps it may be of interest to the adherents of the "Xormentheorie" ("rule theory"), which is now so popular, to learn that this
theory is suggested in Pufendorf, VIII, e. 3, 2, 4. He also says that
the penal clause of the statute is intended for the magistrate, not for the
criminal.
Cf. also Hobbes, "De cive", XIV, 7, 23, who is almost
more explicit. However it arises only incidentally.
Cf. 1, ec. 4 and 5.
^ VITT, c.
Little attention is given to the varieties of
3, 18 et seq.
punishment.
408
Chapter
III]
other Writers.
(SI.
Locke.
Locke,'
like Ilob'oes,
81
proceeded
wrongs according to
his discretion,
punishment
if it can be
is
so obtained,
To
it
if
penalty.
the latter
inflict
killing of lions
and
tigers,
is
whom
Ke has declared,
through his crime, that with law and equity he is not concerned,
and also that every restriction is removed which protected him
from violence and injustice.- For this reason, the amount of
punishment is determined merely by the conscience of the party
inflicting the same.
However, there is no absolute obligation to
punish a penalty can, if it seems expedient, be remitted.
The ideas, from which an actual advance of criminal law could
arise, lay in the dift'erent utilitarian purposes of punishment, which,
however, portray in proper order and in a correct relationship,
has no reason to complain of the punishment.
The
it
rate
its
it
at
any
theories start
upon a
false
in
following out
a relative theory.
Leibnitz.
Historically speaking,
little
the punishment
1
restores
"On Government"
pp. 72
el
the obscured
(London, 1690),
II,
predominance
especially
87.
of
ideas
Cf. Laislner,
8.
I, c. 2
seq.
I,
"Nouveaiix
et entre la
mauvaise ou
la
bonne action."
409
S1)
divinely implanted.
mation.
He
II
deterrence.
[Paut
entirely
it
dependent for its meaning upon the acceptwill, is the primary element * and justice,
according to Leibnitz, does not rest upon the possibly changing
needs and opinions of mankind. A deeper insight is shown by
that passage in which Leibnitz points out, as one of the most effective means of punishment, the general scorn of the community
towards the criminal, and he compares this especially with excommunication among the early Christians.'' This is not far removed
from the principle that punishment may conceivably be something
other than an external evil.
Samuel von Cocceji's " Theory of Lidemnity " ^
Cocceji.
(which likewise exercised little influence), based upon the opinion
that a wrong, in addition to a material injury, also created an
ideal injury, and that this must be rectified by the penalty,'^
was founded upon a divine dispensation of things. Yet it is
quite peculiar in this, viz.
that punishment is regarded as neces-
thuung
"),
which
is
sary for the preservation of the right ordained for the individual
and the authorities of the State (including the right to obediand that the absolute theory was practically debased into
the old and oft-repeated consideration of expediency.^ Simple indemnity, in case of an offense, does not suffice, since, in that case
no one would suffer from having committed an offense, and there
would thus be incitement towards the commission of wrongful acts.
ence),
The
form
of punishment,^
of a
wrong presupposes
the violation of a right. But the jurist felt obliged to modify the
idea of the " lex talionis " into the idea of an evil of equal impor*
Cf.
"Nouveaux
" Introductio
diss.
'
I.e.,
I.
74.
essais sur
XII.
L.C., 555.
410
Chapter
III]
81
violation of a right
is
and morality
is
maimer
in question.
He
believed that
1"
Thus, especially, tlio punishment of suieide was justified,
521.
since no one had a ri^ht over Iiiinseli", except for liis own niaintenaiiee.
"Prineipiuni juris naturalis est voluntas Creatoris
C/. also
27
I
Omnis autem ilia voluntas hae jjenerali propositions eontinetur, ut creatura9
suum
euique' tril)uat."
The enumeration in Leyscr, "Medit. Sp." (ilO. n. 1, of the six difTer"1. satisfaetio
purposes of punishment sounds almost comieal
Itesi, 2. pensatio mali cum malo, 3. enuMulatio malifici, 4. detractio virium
nocendi, . terror aliorum, 0. incrementum rei publica\ aut alia rei
pa?na est, per quam omnes istio
publica' utilitas
perfectissima
lines simul ol)tinentur."
" " Institutiones juris naturae et gentium" (1754), 9.'{, 157, 410, 758,
809, 1043 et seq.
'-
ent
411
81]
[Paut
II
tion
and despotism.^^
And
yet
it
is
still
more questionable,
if
one proceeds (as Rousseau certainly did not do with any degree
of precision) upon the basis that crime consists not so much in
the violation of a right as in disobedience. In the case of violations of a right, one is traditionally rather accustomed to fixed
degrees of punishment,
yet a fervid imagination is able to
deduce, from every act of intentional or actual disobedience, the
15
412
Chapter IV
83.
84.
Defects
and
Merits of Beccaria's Work.
Later Writers. Filangieri.
Globig and Huster.
Servin.
Wieland.
Becearia.
Kant.
85.
86.
87.
Grolmann.
88.
Prevention Theory.
Feuerbach.
Fichte.
The
Special
Becearia.
delitti e delle
historical attitude,
(yet shared
by
so
and
many
scientific interpretation.
The theory
of
dift'ers
were, placed in
is,
pledge,
an attack
if
as
it
is
made upon
413
82]
[Part
II
of the criminal
on one side and on the other the principle of the newhich Beccaria has re-
But the lack of truth in the fiction that the individual has
agreed to have himself offered up as a victim for the purpose of
and the more so, since,
deterring others is to-day apparent,
both in Beccaria (as well as later in Feuerbach), the deterring elecourse.
ment
argument
^ is
opinion that the individual could not have conceded to the comsince this right was not
munity the right to put him to death,
Code
of Joseph II,
were
in reality
that time,
must
turn,
and
its
opinions.
The method
of dealing
out criminal justice in the middle of the 1700 s was naturally open
to the reproach that it exhibited a revolting prodigality in its
punishments,
in other words, in its dispensation of human misery,
much
results.
He
would, however, under exceptional conditions, not endeath penalty as an extreme means for attaining safety.
regarded the death penalty as a kind of relapse into the condition of
C. 16.
He
warfare.
=
Beccaria, however, believed that imprisonment
Cf. Glaser, pp. 69, 70.
of long duration had more effect upon the one observing it than upon the
convict himself (?).
Thus there are in him traces of the idea of an
appearanee of punishment. The idea that imprisonment should be
made as terrifying as possible in external aspects (e.g. through the appearanee of prisons) recurs in others.
414
Chapter
IV]
82
law as to emphasize
its limitations.
According to his argument,
only those acts should be punished which were dangerous to the
be
inflicted as
criminal procedure,
duration of the
trials,
fliction
confiscation, etc.
little
danger,
be forgotten service,
as
all
concede.
He
also
recommended
Filangieri.
utility, of
there arose the view that punishment by the State and divine
justice are not identical, and this apparently became the general
classes, of legislators,
and
of
prominent ju-
justice.
8 However, in e. 25, Beccaria would maintain the connection between
criminal law and morality in the determination of punishable acts.
c.
1.
415
82]
[Part
II
The theory
of retribution
it
Filangieri
^^
considers
Hugo
it
him, punishment
is
also
^^
Grotius.
To
He
retribution.'*
by the crime,^^ and this reparation can only consist in security from
the individual offender and a destruction of the influence which
the bad example can have upon others. Thus Filangieri's theory
an uncertain and vague commingling of the so-called
" special prevention " theory and the theory of " deterrence "
consists of
by the
infliction of the
1" The theory of divine and relatively moral retribution was yet maintained, e.g. in 1744 by the Professor of theology and philosophy, Crusius
in his " Anweisung vernnftig zu leben " (3d ed., 1766), and by the philosopher Baumgarten ("Metaphysik", Halle, 1757). As to this cf. Hepp,
I, pp. 15-21.
""Grundstze der
Part
Polizei-,
^-
Naples, 1780-1785.
" Cf. " Introduzione za Libro III" (Vol.
416
Chapter
IV]
bach.
83.
more
83
Of far more
superficial
is
and (from
that abortive
a treatise famed in its time and awarded a prize for merit. The
book deserves mention, however, because its authors for the first
time worked out a- theory of criminal law as a preliminary to legis-
lative action.
" visionary appeals to a divine law " for justification, yet they
They
by the
ideal of
And
recommend,
in spite of the
not be caught alive, and even mutilation by the cutting off of the
Naturally
tongue,^ although only in exceptional circumstances.
nothing is said of a foundation of criminal law from the viewpoint of the offender. The book, indeed, expounds many correct
views
fiable;
asserted that a punishment that is necessary is also justithat the legislator should not confuse offenses that are
it
that punishment
is
criminal (and that for this reason the propriety of capital punish-
ment cannot be
juristic blunders.
contested).
But
it
also
and
contains
is
pernicious
a complete con-
{i.e.
malicious
"*
417
84]
if
[Pakt
84.
necessity of punish-
law merely as the individual's natural right of self-defense transJust as the individual, in the state of nature,
of punishment.
depend, not upon the importance of the punishable act but rather
of the
presents
itself),
deduction,^ he says
it
for,
is
act,
which
when opportunity
by Feuerbach) by a second
(e.g.
is
infringement of logic;
is
thefts
There
renowned
"De
societe
des considerations
par
Iselin, Secretaire
d'Etat de
la
republique de
418
Cf. I,
4 and p. 265.
Chapter
IVJ
[84
ment, and even those punishments by mutilation which the practime had abandoned. The application made by Servin
of the distinction between " droit naturel " and " droit conventionnel " is also remarkable.
Infringements of the former he
regards as " crimes " {i.e. oflFenses of a graver character), while
infringements of the latter are merely " delits " {i.e. offenses of
less grave character).
tice of his
first
we meet
time,^
but he
Life, health,
dom
is
unfortu-
and
free-
I)
"
;
con-
sequently theft is never a " crime ", but only a " delit." ^ As to
punishment, he derived from the conception of the " droit conventionnel " the principle that a death penalty or a sentence to life
imprisonment should never be inflicted for a " delit ", since no one
and morality.
But he com-
mitted the error of deducing legal maxims directly from the moral
law.
And as a result of the interchanging of law and morality,
he characterized " dolus " as " intent to injure " (" en\ie de
nuire"), a conception which later became seriously harmful,
in many respects, for French administration of justice.
Wieland.
The extent to which the maxim " Salus reipublica'
suprema
^
P. 24
P. 27,5.
;
cf.
p. 367.
theft.
8
P. 298.
"
P. 179.
419
P. 91.
84]
[Part
II
Proceeding from natural laws (which he identifies unquestionmandates of morality) ,^^ Wieland, like Servin, re-
inal
is
law
is
most
of his
attacks of Feuerbach.
It is worthy of notice that Wieland had completely failed to
comprehend that the nature of the right requires complete freedom
of action within the right to be conferred upon those acting justly
and that, in violation of this fundamental maxim, he directly
limited the range of the positive right in accordance with the ulti-
136)
health
and
(I,
and neglect
of one's
(II,
own
420
Chapter IV]
84
mony merely
who by
longer in favor).
",
which
is
no
"
Since every act whatever can be " wicked
and every act can be dangerous, mere persuasion leading to discontent in the State can also be a crime and since the perfecting of
the individual is an unconditional duty of the State, so the individual may be coerced by means of punishment. ^^ Thus we find
;
family
in the
power
and
of the
of the State,
is
in the
places.
1^ I,
for
p. 306.
pp. 177
'
I,
85]
subjects. ^^
Code
of
One
is
forcibly
[Pakt
II
Wieland 's work. That his views were those of many of his time
from a comparison with the " Draft of the Bavarian Criminal Code " by Kleinschrod, which was so ably critiof
is
also aj)i)arent
cized
by Feuerbach.-"
When
Kant.
well
" I, p. 147. "The citizens are usually too light-minded and unin"There must be aroused in them a realization of these restrictelligent."
tions {i.e. of natural freedom) in order to make of them good citizens."
-" Compare the account of this Code, ante, Part I,
Wieland
58.
who are so steeped in wickedness that they can(I, p. 406) says:
not live without either actually undertaking injurious acts or with restless vigilance await the first favorable moment for the execution of an
already planned injurious act, are beneath all reformation and nothing
but death is able to effectively put a check to their crime." The Bavarian
draft ( 129) says: "Capital punishment shall be inflicted only upon
those guilty of high treason, murder, manslaughter, rebellion and incendiarism, since criminals of this character can not be so guarded in
"Men
422
Chapter
IV]
bution
commanded by
or for
modifications
85
"
the earth."
of its
Even
members
if
,
From
may
receive
individual.
It
would be very
difficult
of
way
Kant accepted
that
development
and
to-day for a
man
of scientific
is
Ethics has
it.
its historical
phases
punishment
from the very beginning. Kant
murder as a
principle valid
made
to
depend upon
superior to time
Since, however,
tion, so
it is
Kant (although
it
was not
any
theory) was actually ol)liged to give up his theory, which did not
for, in many cases,
proceed further than aphoristic statements
he substituted for the real retribution of like with like a retribution
according to eft'ect or feeling.^ However, his " categorical imperaE.g. an illetive " involved him in some serious entanglements.
;
it is
difficult to declare
the
"^
!)
as a result,
'
2
*
on the question
he
P. 19,S.
also in thoir timo
423
of duelling,
80]
[Part
IT
no proper avenue of escape. Here the " categorical imperatives " contend with each other and, although they should stake
finds
their
on the
life
issue,
criticized
it is
posure, indeed, in a
problems
of law
is
Fichte.
SC).
so lightly attempted,
correct, although
As Fichte based the right of property upon an arbitrarily conabandonment by non-owners to the owners, and
as he bases the State merely upon contract, so he regards crime
simply as a breach of contract, i.e. of the rights guaranteed by
contract.
This breach on the part of the criminal, strictly received contract of
He who
criminal.
is
i.e.
all legal
relations
between the
without rights
is
an outlaw.^
Still
the State
it is
P.
in
203
me
424
Chapter IV]
86
It
does not take complete advantage of these harsh results.
can, as a general rule, satisfy itself with a guarantee that, in the
and it
future, the criminal will better observe the contract
finds this guarantee in the so-called " Abbiissungsvertrag" {i.e.
contract of expiation), from which the criminal derives " the
;
punishment.
But, as above stated, the "Abbiissungsvertrag " merely const!-,
There are crimes of such a character that
tutes the general rule.
the criminal does not appear to be able to give a satisfactory guarantee of his future observance of the contract. In these cases
" Abbiissung " (" atonement ", i.e. punishment in its proper sense)
there still continues the total deprivation of
does not take place
As a result of this deprivation of rights, the State is justirights.
fied, for its own security (and, if need be, for the security of the
But, as Fichte
rest of the citizens), in taking the criminal's life.
;
is
measure.
not only right but also expedient for the law, which necessarily
regards the " Abbiissungsvertrag " as a benefit to the criminal,^
is
had but
little
quences upon
and the theory of security. The controversy- between Grolmann
and Feuerbach soon enough revealed that these theories did not
harmonize. Fichte made absolutely no attempt to specify what
The most he
acts are punishable (deserving of punishment).
'
II,
124.
Upon the whole Fiehte is opposed to the death penalty.
justified it onlv as Cato, according to iSallust's account, justified the
Tlie strange
throttling of the followers of Catiline.
Cf. II, pp. 124. 125.
^
II, p.
He
is
425
HISTOllY OF
S()|
proposes,
way
})y
l)uiiishment,
is
of
all()ttin<i;
amount
[Pakt
II
(decree; of
It
is
liberalism
and
in
also.
II, p. 112.
1 I,
et seq.
p. 169.
p. 114, cf. pp. 118, 119), just as is done later by Grolmann, avails himself
of the statement that it is political (?) reformation that is aimed at rather
The
criminal statute
(if it
would
rest
upon
historical necessity
and
not upon despotism) should be the limitation rather than the basis of the
punishment.
426
Chapter
IV]
Grolmann.
87.
The
" Special
87
Grol-
destruction.
In his search for a moderation of this coercion,means whereby the one threatening dan-
he finds
it
ger
{i.e.
in the use of a
This means
such.
its
for
bring
is,
it
i.e.
is
violated
by the
illegal act.^
bung"
2
if
Cf.
(Giessen, 1799).
"Begrndung",
p. 1.57.
it
The
State woukl
itself
become degraded
banished criminal.
killed the
'
P. 32.
P. 54.
^
6
'
427
88)
But how
will.
shall
[Pakt
II
The answer
will
presupposes the impossibility of determining punishability in accordance with the character of the offender. The fixing of punish-
ment
in
crime
is
dons
all
fixed punishments,
it
absolutely aban-
of the punish-
of the criminal,
which can
later.
method
of attack.
Feuerbach.
criminal law, he
of deterrence.
88.
Feuerbach.
Feuerbach's theory
In
^
foregoing
theories,
for
428
Chapter IV]
88
As opposed
to
all this,
the issue
to strengthen the
authority of the positive law of the statute, and also (since the Caro-
common law, had in many respects beshow how much might be accomplished by a
lina,
come
impractical) to
Xot
It is a function of the State to prevent wrongs.
being sufficiently able to attain this object by direct physical
compulsion, it is therefore entitled to use psychological compulfollows
sion
by threatening an
evil to those
wrong
(a
420
88]
[Part
If
the wron?, wliich he, even apart from this, was bound to avoid, he
has vohnitarily subjected himseU' to the fulfilment of the threat-
ened punishment.
Feuerbach's theory accordinfrly
of law,"
and
it is
proper so to designate
it.
But perhaps
would
it
The
be more
punishment is justified by the positive law. It extends so far
and only so far as can be expected from the operations of a positive
correct to call
statute,
i.e.
it
a published statute,
made known
This
to everyone.
is
nate part.
As may
In
it
its
by means
of apodeictic
maxims
facts,
of
of eternal
axiomatic
which are without proof or further foundation,
Feuerbach bases criminal law upon the power
as he believes.
justice,
an earthly
Herein there
human nature.
The power of an
lies
human
nature permit
and consequently Feuerbach's theory accomplished a greater step in advance than the grandiloquent
of a certain calculation,
Punishment
is civic
punishment
(i.e.
It
is
based upon
its justifica-
430
Chapter
IV]
88
in the future.
rests
case
since
it is
which the
legislator
in
the ab-
where an
intelligent decision
(itself
men-
mate purpose
of the threat of
violations of right,
i.e.
criterion
''
for deter-
is
apparent that
all
Against
all
the other
punishment
(se-
"Re\nsion"
(I,
p. 147)
con-
431
88]
[Part
II
much through
by applying
itself
its
it,
viz.
that crimi-
execution
in
the
to the generality of
affairs, and by establishing certain fundamental principles of conand for these reasons, proceeding dispassionduct as inviolable,"
No restricately and in accordance with broad considerations.
tions, on the other hand, are recognized by the theories of deterrence
which, in
moments
man
would
inflict
a se-
if
we
assert (as
Hepp
does,
it is
II,
is
pp. 260
et
superfluous.
seq.)
As a
legal basis of
432
Chapter
IV]
88
a
it
justification of
as
did
it
many
it
of the vagaries
(^f
It
these
in-
dividuals.
If Feuerbach had arrived at a full comprehension of this, he
would necessarily have discovered that there was not as much opposition between moral judgment and the criminal judgment of the
(Nevertheless he was obliged to confess
State as he believed.
that everywhere in the criminal law,^ moral conceptions and judgments " intrude.") He would also have come to realize that these
two kinds of judgments differ merely in this, that the judgment
of the criminal judge tests the morality of the act only to a point
that
is
certain
and easy to
establish,
and
In that case he would not have been led, as he was, to separate the
law from the popular conscience, nor to justify punishment merely
statute and
come under
its
punished on
since deterrence
is
account of
possible only
The short work of Thibaut " Beitrge zur Kritik der Feuer"''
bachischen Theorie ber die Grundbegriti'e des peinlichen Rechts
:
'
"Revision",
I,
p. 161.
violate a
subjective right, are, according to Feuerbach, only offenses subjt'ct to
police regulation.
Cf. "Kritik des Kleinschrod'scheu Entwurfs", 1, p. U).
" 1802.
433
SS]
(which
many
in
respects
is
excellent, although
it
ful in
attaining
its
No
II
seeks to establish
[Pakt
criminal legislation
'-
is
lays
down the
more success-
its
more
terrif^'ing
^'*
and
12
right.
P. 58.
434
Chapter
90.
91.
92.
Bentham.
Theory
of
Romagnosi's
Necessary Self-
Defense.
Oersted.
Bauer.
The Admonition
Theory.
The Reaction against Feuerbach's Theorj^ of Deterrence.
Schulze.
Groos.
Ahrens. Rder.
ism.
Bentham.
93.
94.
95.
96.
The
Steltzer.
Theory
of
Reformation
founded upon Determin-
89.
An interesting
.(Esthetic
Judgment.
Geyer.
Ivrause.
parallel and, in
i.s
many
re.spects,
to be found in the
He
is
it as an axiom that
and that since the law
simply declares
founded simply upon general utility, it seems sufficient to depunishment as advantageous for the maintenance of the
scribe the
Therefore the only endeavor of the legislator should be, on one hand not to punish acts
whose punishment would not serve a useful purpo.se, or would
in fact be harmful, and also not to apply tho.se kinds of punishment
general legal system, this being obvious.
^ As to Bentham,
cf. especially Mohl, "Geschichte und Literatur der
Staatswissenschaften", Vol. 3 (1858), pp. 595 et seq. Concerning his
theories of punishment, ef. Hepp, " Gerechtigkeits- und Nutzungstheorien ",
The matters considered in the text can be found, apart from the
p. 50.
on the Continent.
435
89]
[Paht
which would attain such a result, and on the other hand to threaten
harmful acts with sufficient and elective punishments. Accordingly Bentham, in masterly fashion, analyzes to their extreme ramifications the actual or presumed evil whieh arises or could arise
his
less
Romagnosi's
Theory
of
profitable.
Necessary
Defense.
Romagnosi's
Germany
until later.^
2 "Genesi
Translated into German by Luden,
del diritto penale."
" Romagnosi, Genesis des Strafrechts" (2 vols. 1833).
3 Among the adherents of this theory are:
Martin, "Lehrbuch des
deutschen gemeinen Criminalreehts " (first published in 1812); Carmignarii, "Teoria delle leggi della sicurezza sociale" (3d ed. 1832, Pisa),
pp. 47 et seq.; furthermore, A. Franck, "Philosophie du droit penal",
Necessary defense of the community, since
c/. especially pp. 115 et seq.
it need not be completely analogous to that of the individual, is reducible
In realitjs Franck's
to a coercion to repair an intended moral injury.
theory of necessary defense is identical -with the "restitution theory" of
Welcker. But in addition there is present in Franck (p. 120) the foundaCarrara, "Programma del diritto criminale" (ed. 5,
tion laid by Fichte.
Lucca, 1877, II, 608 et seq.) may also be called an adherent of the
theory of necessary defense. However, he deduces criminal law not as a
right of the State but rather as a right founded upon "Necessita della
umana natura" ( 608). The State has the right to punish merely so
far as it accomplishes that legal protection ("Tutela giuridica") which
is entrusted to it.
Carrara stands upon the basis of the old law of nature
and the logical consequences of his view would accord therewith, to the
extent that criminal law (which it is stated in 612 is to maintain human
freedom) may not be applied merely to promote the welfare of the State.
The difficulties inherent to this theory of "difesa" or of "tutela giuridica"
are too easily dismissed by this famous and useful ^\Tite^, whose theory,
since it fLxes as the goal of punishment, the attainment of peace (of the
party Avronged and of the citizens), is completely reversed in the "restitution theory" of Welcker.
From defense calculated to operate in the
future, there does not necessarily follow (as Carrara, p. 614, postulates) the
We would
justification of any admeasurement of punishment whatsoever.
gladly express our approval of the several excellent statements of Carrara,
but a separate volume would be requisite for this purpose.
436
Chapter V]
89
ment
and
all
other rights.
in
would cease at the same moment as the attack. But when human
society came to exist, there arose from the impunity of the individual making the attack a new danger both for the party attacked
and for all others,'*
a danger for which, as the natural consequence of his attack,-^ the criminal is lial)le. In other words,
there arose the right of punishment, which of course has no purpose
more severe
are attacked
penalties where
whereas the principle
if
which appears
in its
sundry phases
conception, however,
bach by the fact that while he, like Feuerbach, makes a distinction
between law and morality,^ he does not regard them as absolutely
separate.
Yet, on the other hand, for this very reason he fell into
a fatal error which Feuerbach was able quite easily to avoid, and
against which, as w'e have seen, he very emphatically and effectively
undertook to warn his contemporaries. Romagnosi regarded the
*
221,
2,')1
ei
46, 47.
especially
* Cjf.
The conception
seq.
expressly repudiated.
punishment as atonement
of
is
1345.
39.5.
437
1386.
S!)l
[PAUT
11
frocdom of the eriminal as a prerequisite for his liapenalty of the law. His " malvai,nta " is nothing
and closely connected with it is
other than this moral freedom
his error of ascribing the basis of the crime, not to the self-love of
so-called moral
'-*
to unnatural
impulses.
Here Uoma-
isfactory.
lies
is
not
because of that of
the baseness of the criminal to lead them astray. Thus the criminal
must suffer for the others thus the theory of necessary defense is no
;
more
gravitating towards
criminal,
a theory which in
rily leads to
Moreover,
it
despotism.
its
Proof of this
is
To
morality
1
11
results of
permanent value.
Romagnosi
438
in
''
Ri\'ista
Chapter V]
90
But,
its
ultimate result,^^
is
rence, he
is
popular sentiment
Bauer.
itself
The
Bauer
.^'^
Theory.
The
" admoni-
"
16
Cf. espeoially p. 5.
Especially p. 109.
II,
pp. 590
'
Cf.
et seq.
439
UO]
upon the
l)ascr
impulses
(or,
more
[Pakt
II
up before the
tor holds
"^rhe legisla-
ment
criminal.^
From
P. 169.
P. 38.
Pp. 126
"
Cf. pp.
" In Von
et seq.
226
et seq.
9
;
p. 233.
Holtzendorff's
"Handbuch",
440
I, p.
268.
Chapter
V]
91
Schulze.
make
;
he
Without any
upon the
which
may
be
inflicted
But instead
determine how the morality exercised generally by the State, and which must coerce the individual,
is to be distinguished from the morality of the individual, and thus
founding the specific character of law as opposed to morals in the
of proceeding
from
this basis to
ordinary sense, Schulze suddenly substitutes the principle of necessary defense (or protection of the legal system).
The
criminal
is
Steltzer.
In the meantime,
i\
'
441
92}
[Part
II
But a presumption of reformation should be determinative in the fixin<j; of the amount of punishment. Since the uncertainty of a moral reform ^ by means of the
State and its agencies is self-evident, Steltzer speaks of effecting
munity from him
a continuing
is
essentially
in
attempt to
accordance
further training.
chief ("
Bubenstck
"). 2
rested
Pp.
P.
8, 13.
11.
P. 129.
is
justified as
obtaining security.
9 Pp. 8, 26.
1 "Der Skeptieismus in der Freiheitslehre" 1830.
2
C/. p. 140.
442
P. 37.
an extreme method of
Chapter V]
quite obscure.
But these
Man's
raoral.^
He
92
deci-
desires the
else.
Only he has often a false conwhen he deems it good to purchase his own
advantage with another's disadvantage. He makes a false calcu-
lation.
is
we may
To
and the
is
guilt.
But
owes
its
not to be regretted.
Nevertheless, accord-
mental principles.
On
the
contrary,
in
more sure
in their opera-
The
443
92]
LAW
[Part
II
man an
and
rational
(a
point
contested
good
by
impulse towards the
question
whether
this
not,
the
is
perstill
arises
Theology), there
exist.
Even
own
respon-
The weakening of
sibility can never be entirely extinguished.
lead
the
spread
of evil.
undoubtedly
to
Morewill
thought
this
'"
is
justifiable, it is
efficacy of the
harsh penalties
But Groos had never made an attempt to define the limits of criminal actions and to demonstrate the possibility of a sufficientlj''
Here his theory
definite criminal law based upon his theory.
was subject to all the charges which Feuerbach had justly made
against the theory of Grolmann.^
Krause,^ who
Krause.
of determinism, regarded
5
Cf. also Jarcke's polemic in Hitzig's "Zeitschrift fr die Criminalrechtspflege in den preuss. Staaten" (1829, Vols. 21-23).
^ It will not be necessary to take up carefully those erroneous doctrines
which are indispensable as a basis for exact observation in the sense of
doctrines which regard crime as a consequence of a
natural science,
mental prefiguration of the criminal (George Combe). Concerning this,
and especially in opposition to the results of the mental doctrines of Gall,
cf. Mittermaier, in "Neues Archiv des Criminalreehts " (1820), pp. 412
el seq.;
Hepp, II, pp. 646 et seq.; Franck, "Philosophie du droit penal",
new attempt at a founding of criminal law upon the
pp. 64 et seq.
foundations laid by Groos is that of Karel J. Rohan, "Ein Versuch ber
die Entstehung und Strafbarkeit der menschlichen Handlungen" (Wien,
But here determinism is made use of in the sense of Feuerbaeh's
1881).
"theory of deterrence."
Ed.]
[See 102o, post, for this group of theories.
Cf. especially Karl Christ. Friedr. Krause, "Das System der Rechtsphilosophie", ed. Rdcr (1874).
8 Pp. 457, 532.
''
444
Chapter V]
ment
of the civil
92
solidarity of interests of
munity must interest itself in the training and culture of its individual members.
Ahrens.
Ahrens ^ gives to this theory a coloring which touches
The
first
the criticism
in
made
Attention to reforma-
reformation
has no place in a
this
'
Cf.
et seq.
445
II,
pp. 44S
92]
This
is
[I'aht II
impossible to contemplate.
imprisonment.
According to the theory of reformation, such hindrances to a better treatment of convicts must, as
even these efforts, for that matter,
far as possible, be eliminated
if carried through regardlessly, would, little by little, remove from
guilt,
is
of " de-
not to blame.
is
its
no
evil
but rather a benefit, then better punish too much than too
little.
Rder
^'^
wherefore, everyone
may
{i.e.
criminal
fr Gesetzgebung
446
Chapter V]
But there
inclined to wrongdoing. ^^
is
93
and they
in
no way run
ment (presumptive
at least)
occasionally, be generally
decree.
is
obtained
and certainly
The above-stated
parallel.
reformatory punishment,
principle
is,
it
so far as
fixed
by statute
or judicial
is
an imj)rove-
problem
of prison
relative justification.
maintain the character of actual punishment for his educative penalties, speaks of the " untauglit simpletons " ^" who are to be thus educated, he thus conceals the further
obnoxious logic of the theory of reformation, viz. that the desir-
While Rder,
in order to
able things in
Welcker,^
and
of deter-
"
Cf. especially
"Grundh^hron",
p. 99.
'=
P. 107.
morale."
'^ Incidentally
the reformatory punishment can also be pushed in the
contrary direction, if one argues that the convict must not be set free nniil
he has reformed and there is no danger from him for human society.
The legal system in the State does not need to secure absolute safety from
violations of law
men must
and
be set free
injuries,
is
former work.
447
03]
[Pakt
II
more moderate
form and not designated as such. The violation of a right contained in the crime creates an obligation to make indemnification.
The criminal does not (as Fichte would have it) become completely
without rights, but only to the extent that the community possesses
an absolute right over him, since it can hold him to compensation.^
tiieory the contract theory of Fichte, althou<i;h in a
is
its
accomplished
indemnification
in
its principle,
of the
the punishment.
the individual.^
is
(1)
This
(2)
espe-
of harmony between these impulses and the requirements of justice. In the other citizens the crime produced
(without any fault of theirs)
(1) a lack of respect and confidence
and an absence
in the criminal,
as a
member
who through
of the civil
Especially
is
harm done
the crime
is
a disgrace in so far as
it is
who
feels
that
ment
(1)
Moral,
(2)
Political
improvement
of the
criminal,
(3)
(4)
of regard for the law^ on the part of the citizens, of their moral
political respect for the law, (5)
teem
and
mental attitude of
P. 249.
"If a member of the social union ... in contradiction to
himself and his deliberate avowal " (Weleker bases the State and law upon
a contractual declaration of individuals) " violates the legal relation and
inflicts injury upon it, then it is the first condition of his legal existence,
his foremost legal duty ... to make the greatest possible reparation."
'
"In so far as the criminal for his part has contributed to
Cf. p. 262.
the lessening of respect for the law and to the incitement of base impulses,
a punishment for arousing abhorrence of the crime and deterring from its
commission is legally permissible and necessary."
* P. 265.
2
448
Chapter
V]
There
is
(7)
93
com-
member.
no merit
theory
that ideal injury can not always be shown, and does not invariably
exist,
and
it is
a further search
completely astray as a result of a too exact discussion of the consequences of the individual crime.
But, despite this answer, Welcker's doctrine contains a fallacy.
For, although he maintained a moral basis for the law, and (though
the criminal himself, upon the injured parties, and upon others.
Now
this
own
fault.
It
is
if the commiswrong done by the crime constitutes an incitement to the commission of a crime. The ideal damage can not in
every case be charged exclusively to the account of the criminal, and
make an
is
really punished
is
also
449
93]
unfortuiiatt'.
less
[Part
IT
than deterrent
by the wrong
quires
come
effect
upon
others.
And
finally,
called ideal damage furnishes a perverted criterion of the punishAs Heinze correctly points out " The
able character of an act.
:
crime,
it
if
punishment (which
worst
in the
crimes will seldom be the case), would bring about not an increase
"
point)
crime
stored
"
punishment and compulsory payment of damages as functions of the power of civilizaIt is quite proper
tion, which can supplement and defend itself.
to call attention to the fact that, in public punishment, there is
always contained a remnant of satisfaction for the party injured,
and therefore punishment and pardoning are not entirely un-
and
it is
connected with the party injured. But the inclusion of punishOne genof indemnity is not clear.
erally thinks of indemnity in a case where the party bound to
and
indemnify has an advantage or has enjoyed an advantage
here, at any rate, is involved the simple idea that the law can not
tolerate an illegal condition, in order that it may compel the crimi;
nal to
make
restitution or to give
an equivalent.
many
On
the contrary,
One may merely say "of the criminal" and not "of the crime." In
opposition to the statement of Welcker are well founded the objections
of Hepp, II, p. 766, that the infamy and disgrace of the criminal are little
in harmony with the idea of his reformation.
">
450
Chapter V]
is
concrete cases,
another
inflicts
is
punishment.
satisfied
it is
For, in
can actually
very possible
94
is,
Welcker's theory under another name. The offender has to reBut it is not
pair the moral damage arising from certain actions.
clear how it comes about that this compensation consists of the
punishment, which must be undergone by the ofmust therefore be that the strength of the evil example
any case is not to be denied,^ and which in reality rests
evil inflicted as
fender.
It
(which in
ample
is
is
punishment.
Hepp
of those
who
are, as
it
were, led
regarded as a reason for this. This influence of the exindeed broken by evil undergone by the offender as a
In individual matters,
many
correct statements of
tinction of a
of
Zacharia.
of
Criminal Law.
C. S.
in
Hew,
Cf. p. 779.
II, PP- 770-852.
Carl Solomon Zacharia, "Anfangsgrnde des philosophischen Criniinalreehts" (1805); "Strafgesetzbuchsentwurf" (182(5).
Cf. especially
8
1
"Anfangsgrnde", 42.
- But from the law of necessity of the State other punishments are allowed.
451
95]
The
Henke.
[Part II
humanity.
stincts of
It
its
proclaims
there
must sooner
is
itself in
con-
or later bring
it
upon him-
{i.e.
it
The punishment
whom
civil or
physical death of
its
diseased
member
ment
And he abandons
of the criminal.
so-called
political
mere
But
evil is
if
ideas of retribution
and harmony,
ment meted out up to the time
in such
if
it is
is
of reformation
is
peace
Punish-
not retribution
more than
retribution
if
the stubbornness of
More
Combination
of the
In his "Geschichte
I (1823), especially pp. 9, 10, 146 et seq.
des peinliehen Rechts in Deutschland". II, pp. 362 et seq.. Henke had
originally declared himself against every absolute theory, and in the
work "Ueber den gegenwrtigen Zustand der CriminaLrechtswissenschaft
in Deutschland" (1810), he substantially embraced the theory of Fichte
(pp. 15 et seq.).
politik",
452
Chapter V]
relative.
is
essary retribution
is
95
given
its legal
basis in nec-
may
be used only in so far as it serves to attain rational future purif the attainment of the single purpose is not allowed to
prevail exclusively, only in so far as it is necessary for the main-
poses, or,
tenance of the legal system. This coalition of the theory of retribution with a certain indefinite theory of necessary defense has
found favor, especially in France and among those commentators
who are strongly influenced by the French spirit. It has also
been, in truth, equally the predominating influence in legislative
most
correct results
results
Rossi.
was
The
Rossi. ^
qualified
He
and ablest
first
evil
with
evil as
an un-
But
of justice.-
since
civil
it
effect to it
only in so
and the
it
diflRculty of certainty."*
453
IIISTOUV OF
Of)]
[PAKT
II
'
IMittermaier
numerous punishments for offenses against the police measures and other coercive penalties,
which are practically indispensable but which are not readily justihence
fiable from the standpoint of absolute and eternal justice
he shows traces of the thought that, under some circumstances, a
punishment can be justified b}' the fact of ha\'ing been threatened.
Henrici ^^ assumes at the outset an independent position for the
had perhaps
by
principle B.
will
it
will
be
difficult
for justice to
p.
(1839).
12
P. 78.
454
Chapter V]
[96
But there
ency.
the matter
justice
(i.e.
doing too
is
is little
importance
in this distinction.
However,
absolute justice)
little
'^
is
also
Here, according
advanced simply
by ideals of
and humanity. If this is permissible, then the choice between the punishments of absolute justice (sentiment) and punishments based on considerations of utility or relative necessity becomes merely a matter of sentiment.
This criticism is manifestly ai)plicable to the views of von Wieck,'^
who substitutes for the general purpose of maintenance of the legal
system, the special purposes of deterrence and reformation, and,
indeed, would give attention to these onl\' in so far as they do not
do injury to the chief purpose of the punishment
retribution
through the infliction of suffering. It should be noticed that
von Wieck, who uniformly adopts a positive Christian attitude,
seems to have a sense of the irreconcilability of the infliction of
The uncertain assertion that the
suffering and Christian ethics.
State in its existing condition, where evil is not overdone, may
exercise mercy and charity only in so far as it may be done without
material prejudice to punishment, confirms rather than abolishes
as a constitutive principle, without being limited
utility
this contradiction.
96.
Herbart
Judgment.
many
In
bution
is
As law
is
Retri-
axiom
"
P. 85.
pp. 127
et seq.
455
96]
better.
But
in
[Part
we
II
find our-
upon the real and practical ground of the present criminal law, and hence it is especially noteworthy that Ilerhart
has but little knowledge or interest in the reformation of the
criminal.^
And Herbart's idea of punishment (which may quite
properly include death and life-long imprisonment) is opposed,
even from his aesthetic standpoint, to that lofty idea which does
selves immediately
not desire the death of the sinner, but rather the suppression of
by means of good. It is at least a " petitio principii " to
evil
is
aesthetically
latter.
this.
He
ment
its
its
purposes require
seem
its
it,
or (speaking
purposes
make
it
is
often impossible
"Praktische Philosophie"
"Werke",
(I),
No!
9.
p.
418.
8, p. 87.
456
Chapter V]
96
This
judgment exceeds
gorical imperative,
it
in
indefiniteness.
punishment can be
science unconditionally
judgment, pimishment
expressly opposed to it.
demands
may
inflicted only
it
according to the aesthetic
be inflicted if our conscience is not
;
up the aphorisms concerning crimiwhich are more or less closely connected with Herbart's
fundamental conceptions. But though they include some well
thought out statements, as a whole, they demonstrate that the
philosopher knew little about criminal law, the subject upon which
he was philosophizing."
Geyer.
Herbart's philosophy of criminal law has found few
followers.
It is best and most skillfully defended by Geyer.
But
even this defense, remarkable as it is for its many excellent and
apt statements,^ shows that an effective defense of Herbart's principle is not possible for any one who does not possess a complete
knowledge of the subject. In Geyer, the maxim ^ " The act for
which no retribution is made is offensive ", again changed over
It is impossible here to take
nal law
although
it is
Geyer admits
^
P. 85:
fundamentally contrary to
of the limitation:
"To sum
"The
its
But
this retribution,
nature, according to
giving of pain
is
oft'en-
end."
"Reehtsencyclopdie", Vol. I.
^ Cf. the article above cited,
p. 219.
457
!)(>]
sive."^"
[Paut
all
II
inten-
whom
there
is
attached no
guilt,
is
also required
this
is
indeed a
complete rejection of the idea of retribution, of {esthetic judgment. It is impossible for it to be otherwise. As soon as one
comes to the consideration of individual details, it is only by a
rejection of the ideas of retribution that Kant's absurdities
may
be avoided.
According to Herbart's and Geyer's conception, the evil act is
a discord. Would one be less sensitive to one discord, by having
a second one result from it ? Punishment, however, should furnish
If one schoolboy whom another has
evil or pain to the criminal.
struck cries, this cry does not become a pleasant sound because the
second boy whom the schoolmaster has chastised for his offense
also cries.
Of course, for one who takes an interest in pedagogical
discipline, it may be a pleasant sensation to know that discipline
was applied in this case. This is exactly the case with punishment.
If we conceive punishment chiefly as an infliction of pain, as an
evil, then this evil can lose its repulsive character only if it becomes
a means of attaining some benefit. And if it must be retribution,
would it not be the best retribution, and also one to be recognized
as such by the State, if the criminal in the commission of the act
brought down upon himself a mortifying pain or damage, without
obtaining an advantage
1
225
Cf. pp.
et seq.,
^^
at
all ?
Geyer
^^
meets
this objection
especially p. 228.
" P. 231.
Binding's arguments ("Die Normen und ihre Uebertretung", I,
pp. 207 et seq.) concerning the diametrical opposition of indemnifieation
and punishment are properly opposed to a theory which would found
punishment upon retribution or unconditional sthetie approval. But
it is different if the punishment is not founded upon retribution, or if
the matter is not viewed from the standpoint of the positive law but rather
12
historically
1'
and
Common
politically.
sense.
P. 223.
458
its
eminent
Chapter
Vj
96
with the statement that the evil must come about as " retribution."
But is it not in accord with the essential idea of retribution, that it
Every
is more perfect the less it requires artificial preparation?
well-constructed tragedy gives evidence of the correctness of this
refutation of Geyer.
459
Chapter VI
97.
98.
dencies.
Schleier-
Stahl.
macher. Daub.
Developments
of
Later
Theory.
TrenHegel's
delenburg. Abegg. HeffKstlin.
Merkel.
ter.
Hlschner. Berner. Kitz.
99.
97.
Theory
of the
Negation
100.
Combination
The-
the
of
ories of
Heinze.
lOL
102.
E. von
Diihring.
Hartmann. Von
Binding's Theory
Liszt.
of the
Effect of Disobedience to
Laistner.
a Rule.
of
Wrong.
Hegel.
In contrast
step in advance.^
To
is
Hegel, punishment
is
simply a negation of
Of
wrong as
course,
This gives
rise to
who oppose
is
the right,
The
first
of these
it
in abstract,
is
the wrong.
This
is
the case in
civil
wrongs.
is
the wrong
desired.
offender.
" unbe-
which the
is
right,
confused with
{i.e.
is
both objectively
1854),
US2etseq.
460
ed.,
Chapter VI]
of punishment.
not be termed an
As Hegel expressly
evil.
its
97
holds true of
its
But
negation.
this
contemplated identity
is
not
its
it is
is
In other
ciple of right
and therefore the question by what external means,
conformably to quality and quantity, should this rebellion become
expressed as a non-reality is not decided by the principle. First
the " idea as to value " fixes the ratio of comparison between the
act and the means of its elimination. Accordingly (as is not
developed however by Hegel) the dimension and the form of the
punishment depend upon the " idea as to value ", i.e. upon the
valuation in a certain State and at a certain time. These elements of dimension and form would not be governed by the principle.^
Furthermore, it is quite conceivable that the declaration
of the non-reality of the wrong may not be an affair of the State.
It can take place in the form of the vengeance of the party injured.
This, however, is imperfect and easily becomes pernicious, since
the negation of wrong easily becomes confused with wrong or can
degenerate into wrong, when in the form of vengeance.^
;
Cf.
the statement in
102, 220.
461
97]
[Part
II
it
It
is
numerous forms of positive definite punishwhich its principle manifests itself without
becoming inconsistent. But its most important service is that it
does not conceive punishment as an evil, i.e. as something which
has, as its chief purpose, the creation of an evil for the criminal.
Here, for the first time, from the standpoint of the absolute theories, there is actually eliminated the contradiction between morality (especially Christian morality) and punishment inflicted by
It
is
ment
as
phenomena
in
The attempt
is
also
to justify
punishment as
is
by the indiPunishment is
also required
462
Chapter VI]
punishment
legal society
of later times
is still
is
97
The bond
of
is
viz.,
civil
is
an important
right.
hand
responsible therefor.
is still,
in
our times, so
wrong that
is
is
not punishable,
is
The
punishment is more
Right is not an active principle. A right does
you must do this it says merely you may do this. If
unsatisfactory.
not say
the injured party (or the State) has the right to punish, yet he is
not obliged to punish. The duty to punish, which, according
:
made
that,
if
desires,
a condition actually
It necessa-
463
<S]
Punishment
[Pakt
II
come
is
If this
inevitable.
98.
Stahl.
The
efl'ects
Many
and
of
still
which
Among
Stahl.^
this theory
of F. J.
is
again entertained.
The
latter is
nothing other than a limited divine justice, or (as Stahl also portrays it), a moral punishment, with the peculiar characteristic of
being applied only to external manifestations and therefore
eft'ec-
282.
"Die
el seq.;
Philosopliie des
pt. 2, pp.
681
et seq.
II, pt.
1,
pp. 160
464
Chapter VI]
98
that punishment
automatically
fall
it
to pieces (self-preservation).
evil in
First,
him
to his senses
stubbornness.
is
able to
In the
is
bring
all.
which deservedly
falls
(reformation)
through
since the
is
ism or of calculated
human
despot-
may
may
there
II. 1, p. 166.
influence
3
465
II. 2, p.
and deed
684.
is
98]
[Pakt
II
Furthermore, the
and
The
suggestion, often
made by
and crimes.
is only an
completely as
possible.^''
MI.
^
6 II. 2, p. 683.
1, p. 174.
Cf. especially II, 2, pp. 701, 702, the discussion of the
death penalty.
II, 2, p. 702.
Cf. II, p. 691.
466
Chapter VI]
Schleiermacher.
As
nor
is it
98
It
is
is
its
neither original
simply a repetition
]\Iore pro-
by Schleiermacher
as
would be
invincible, he finds
The death
terms as a
relic of
ancient barbarity.
ishment, where
is
at
it
he
feels
Xor
will
he countenance
sentiment.
Conse-
ineffective
while not dealt with in detail, will serve as an illustration of the results
that may ultimately be obtained from the theory of divine retribution,
or e\'en from retribution generally
sinee the idea of retribution always
leads ultimately to a deification of existing institutions.
According to
de jNIaistre, human victims are required because of universal sin. They
fall in numbers in war and singlj' under the axe of the executioner, and
there is no reason for concern in their increased or diminished number.
The executioner is the mysterious correlate of earthly authority, without
which earthly majesty, the representative of God, cannot exist. The
executioner inspires horror and aversion, and one cannot perceive how
any one can be found for this fearful ofiice. But because of a mysterious
dispensation of Providence there is no lack of executioners, and as a matter
of fact the executioner does nothing different from the soldier (I) who is
seized by rage and the enthusiasm of the battle and desire for victims.
There is no need to be disturbed if perhaps some innocent party is executed.
There are far more gi'ievous evils, and every one merits it because
of liis sins.
And yet all this exposition is not as absurd as it seems. In
reality, the idea of retribution in criminal law is always a confusion of
the human and practical standpoint with the divine but (for us) un("Soirees de St. Petersbourg",
attainable and impractical standpoint.
I, pp. 182 et seq., pp. 214
I, pp. 14 el seq., pp. 34 et seq.;
II, p. 4, p. 23
et seq.).
1'
Cf. Schleiermacher,
pp. 241
12
"Die
et seq.
Pp. 247
et seq.
467
von Jonas",
98]
indeefl, it
who
is
tliat
[Paut
no punishment should
really repentant;
although,
is
He
upon
himself.^
He
the complaint,
the prosecution,
who
prin-
take part in
herein
tians of
whom
But, in
all
he
is
this,
speaking.
He
is
" This, however, is not perfectly clear, since the passages in question
speak only of self-accusation and of the right or duty to call in the authorities.
In the first passage it says: "The moral
C/. pp. 2.54, 2.57 note.
law does not require that one give himself up as a transgressor of the
law. ...
If any one
has actually come to recognize his sin, then
he is even upon the path that should lead to a revocation of the punishment."
P. 260.
'5 He is not certain however as to its results.
.
'6
P. 248.
P. 251 note.
false principle,
himself.
468
Chapter VI]
and
that vengeance
is
98
Thus, the
State again appears, after all, not as the work and creation of man,
but rather as " Deus ex machina ", which confers upon man the
may wash
Daub.
The Protestant theologian Daub - allies the Platonic
conception of punishment with Hegel's conception of punishment
as a negation of wrong.
He portrays the blotting out of the wrong
in the will of the criminal
by means
of the
punishment as some-
punishment
is
evil.
a kindness, a benefit.
is
God may be
blotted out
by remorse
and penitence, but crimes which also affect others can be done
away with only by the punishment of the offender. Thus, even
the death penalty appears as a benefit.
The
blood-guilt of the
murderer can be removed from him only with his own blood.
However, if one consider it closely, this is so only if the criminal
can be brought to pronounce his own sentence, so that he be convinced that justice is being done him. If this be not the case, the
criminal merely succumbs to the unavoidable and the execution
assumes somewhat the character of murder.-^
A special criticism of this view is not necessary. The criticism
of Plato's views and those of Hegel also contain a criticism of this
combination of both. It is, however, interesting to observe that
Daub vigorously assails the idea of retribution, which is at variance with Christianity (retribution, not through God, but through
men !) and protests against the misuse of the offender for arbi,
--
of a class privileged to
impose reform.^
18
P. 258.
Occasionally, however, this clear thinker has not failed to recognize
that a different condition exists. Thus on p. 251, lie says "The criminal
law can be nothing other than an expression of the general will inspired
by the Christian spirit", and on p. 252 (note) "The Christian authorities
cannot justify themselves by saying that they found the law (i.e. of capital
punishment) already in existence, because every law can be changed."
-" "Svstem der theologischen Moral", II. 1, especiallv
pp. 347 ct seq.
22 I.
" P. 285.
pp_ 342 ct seq., note.
'^ The statements concerning pimishment and criminal jurisdiction of
Rothe, "Theologische Ethik", III, pp. 874 et seq. (1st ed.), have no
original significance.
They amount sulistantially to an uncertain repetition of Hegel and Stahl, except that the negation of wTong is taken rather
in the sense of Kant's retribution.
{Cf. e.g. pp. 877, 886: "The justi1'
469
99]
99.
of Hegel's tlieory
[Part
II
Trendelenburg.
To
be sure, this aspect of punishment depends upon the conis free and can not be
They
fication of punishment consists in its actually being retribution.")
Differing from Hegel,
also contain other manifestly retrograde ideas.
Rothe believes it is possible upon the whole to fix gradations in punishment by retribution and that the death penalty is justified by the usual
references to certain passages of the Bible (which passages historically
considered have another meaning), p. 887. On pages 876 and 877, re"And indeed as a Christian State, the State
ferring to Xitzsch, he saj's
must punish for even upon a basis of a complete conciliation of 'the
conflict between the interests of hoUness and those of grace arising from
the redemption (Would that this conciliation were already accomplished I),
Christian love can not stay the arm of criminal justice, but rather it
must in its own interests expressly lu-ge it to activity' "( !). For the
but
judge indeed, the two-soul theory* which he advances is correct
not from love for or
how the state may be Christian love and yet
interest in its innocent subjects
because of blind retribution assign
The
the criminal to the executioner, is not readily comprehensible.
criminal law of the 1500 s and 1600 s which arose from these opinions
furnishes a criticism of such theories.
It is natural that the fact is overlooked that criminal law histoi'ically had its origin in vengeance, which
is everywhere condemned (c/. p. 877, tiote).
In all these matters Sehleiermacher has shown greater depth of thought.
1 "Xaturrecht auf dem Grunde der Ethik" (2d ed.,
1868), 50, 56-62.
- "Xatturrecht, etc.",
58.
:
470
Chapter VI]
99
the criminal.
hostile will
His reformation
hence, that
it
is
may
tlie
Furthermore
ment.
*
:
power
of incitement only
is
counterbalanced
bj^
the influence
it
has
its
production
there
is
in
man
every
its
its forms."
Upon this necessary effect of civil punishment
upon the community, there also rests, as Trendelenburg further
remarks, its distinction from pedagogical punishment.
all
in
is
malum
involved in
eft'ort is
made
to
'
61.
471
99]
And
tempt
is
in
at the
same time, an
II
at-
how
[Paut
He
portrays
its
method
of
dialectical
contrast
is,
as
it
were, meaningless in
{i.e.
in history) that it
upon the
itself
it is
assumes the
criminal, in accordance,
offender,
6 "Die
verschiedenen Strafrechtstheorien in ihrem Verhltniss zu
einander" (1835), pp. 8 et seq.
6 In Abegg's "Lehrbuch der Straf Wissenschaft",
48, punishment is
conceived as the bowing of the criminal to the will of the law.
^
Cf. especially page 28: "Punishment is allowed only to serve the
ends of justice, and this furnishes the rule for its application, and its
However, in 49 of his "Lehrbuch",
conditions, its kind and amount."
mention is again made of a relation between guilt and punishment determined by considerations of the nation and morality, and the resulting
retribution.
But in the "Archiv des Criminalrechts " (1845), p. 262,
Abegg formally defends himself against Hepp's criticism that he, Abegg,
had said in the sense of Hegel that punishment is not an e\il. Abegg
would merely say that punishment which is primarily and directly an
Here
evil for the criminal, could and should (?) be also a benefit for him.
may be observed that "could and should" which are so easily said in the
same breath. But what if these premises do not apply? There is no
doubt about the "could", but the "should" gives punishment an entirely
different meaning, and, when logically thought out, under some circumstances a quite different form.
472
Chapter
VI]
same
The
But
99
Abegg's
theory, also, there is no possibihty of these two conceptions being
reconciled, as is revealed by a contemplation of the results.
He
who
is
Rossi's theory.
in
will
is
es-
it
by
114-124.
473
!'.)]
[Part
II
lS()i)liy Tor
which
of the
If,
without
many
a repent-
we
shall, as it
all
requirements),
IMoreover,
is
Kstlin's
not satisfactory,
the distinction between civil wrong and criminal wrong for the
reasons previously dealt with. As to the intermediate classification favored by the dialectical method of Hegel, the penalties
inflicted by the police power are, as a rule, not juristically preventive,
but rather, as
it
police regulation
is
wrong, although
it is
it
jective right or
case
punishment
treated
by
as
right
Kstlin.
He
of
jeopardy.
the
believes that
474
The
criminal
is
justification
only
of
incidentally
Chapter
VI]
99
has established.
and
This
fundamentally connected with ^Merkel's assumption that wrong
conceivable only as blameworthy, and that law consists merely
commands
civil
(rules)
That
is,
family and
years
my
is
either volun-
it by virtue
Not because my
do not have
'" "Criminalistische Abhandlungen", I ("Zur Lehre von den Grundeintheilungen des Rechts und der Rechtsfolgen"), 1867, p. 41, pp. 104
et seq.
Cf. also Merkel, "Zum Reform der Strafgesetze, ein Vortrag"
(Prag, 18G9), and more recently in the "Zeitschrift fr die gesaramte
Strafreehtswissenschaft" (1881), pp. noS et seq.
*' For
the contrary view, and especially concerning the controversy
as to the possibility of wrong without guilt, cf. tiie numerous discussions
l)y Thou, "Rechtsnorm und subjectives Recht" (1879), pp. 71 et seq.
Ilowever, for an adherent of the "Norm" theory this matter has its special
difficulties.
475
99]
[Part
From
^^
no longer, as a matter of fact, possible to arrive at the concepMerkel on the other hand finds realized
in criminal justice.
Private law and civil justice have essentially
nothing to do with the conception of retribution, but nevertheless
punishment according to its nature should not be different from
it is
The
postulate
^^
of a
followed
by
retribution jeopardizes
all
of those conditions."
Pun-
12
In respect to this, cf. Binding, "Die Normen und ihre Uebertretung."
In spite of which, the principle so excellently developed by Merkel is
sound, \iz., that to a certain extent and under certain conditions
the civil sanction may represent punishment and take its place and that
the State should inflict punishment for an act only in so far as the civil
sanction does not suffice.
Cf. Merkel also in the "Zeitschrift fr die
gesammte
476
Chapter
ishment
tions
VI]
is,
(;
99
of society depends,
a reaction which
still
express
being moral.
of the danger of
its
getting
beyond
11-17.
"^
Cf. "System des preiissischon Strafrcehts", I (185S), pp.
pp. 435-443; "Die Lehre vom Unrecht und seinen Formen", in "Geriehtssaal" (18G9), pp. 11-3G and pp. 81-114 (also pulilished separately),
But especially see "Das
also "Gerichtssaal" (1876), pp. 401-440.
gemeine deutsche Strafrecht", Vol. I (1881), pp. 3-30, pp. 558-574. Ihe
citations following are from the work last mentioned.
' Pp. 26, 27, 30.
'^ P. 12.
Pp. 13, 14.
477
<)!]
[Pakt
II
of the State.
is a moral
However, the sanction should not be unrestrained,
nor should the criminal be seized by tlie power of the State " as
something absolutely without a right." Justice should be satisfied by a punishment which completely corresponds in kind and
amount to the guilt in respect to all elements under consideration.^"
And yet the various possible purposes of punishment (security,
A conflict of these various purposes,
etc.) should be attained.
Hlschner feels, is possible only when exclusive predominance is
given to some one of these purposes, or if there is assigned to punishment some purpose foreign to its ideal nature ( ?)
We have already frequently pointed out that a combination of
necessity."
^^
and remains simply a pious wish, which will not bear up under
For example, suppose, in
in the individual cases.
examination
is
a will-o'-the-wisp.
19
P. 32.
P. 565.
478
21
p. 11,
Chapter VI]
99
cion
may
exist
without a
effective coercion
may
civil
exist
or a criminal procedure.
by \irtue
very
machinery
The
coercion might
by the disamight
encounter
opposition
to legal
vowal
intended
him,
and
in
glaring
cases
could
by
not
rules otherwise
avoid a breach of the constitution which would be prejudicial to
his position.
The coercion exercised by the law can also very well
in
this,
viz., that the law deny to him who violates its proconsist
visions any assistance, or that it recognize the right of self-defense
on the part of those ofTering opposition, etc.^ Coercion is absoand
lutely necessary, because the law must be valid generally
must,
of
this
individual
will,
because
law,
opposed
to
the
the
as
very generality, not yield but must compel. Consequent!}^ it is
not apparent wherein vengeance specifically differs from punishHistorically, as Hlschner admits, it is the root from
ment.
which the criminal law sprang. Therefore theory requires identity
and has not the State often
with it in its fundamental essence
Moreover, in the
of
vengeance?
assent
the
exercise
given its
to
initial stages it is certainly not necessarih' immoral, and the less
If
so since it can then hardly be distinguished from self-defense.
opposiencountered
merely
bold
aggressor
had
in those times a
tion as limited as is our modern self-defense, and never had to
fear anything further, then certainly {e.g., as with the early Gervery well
e.g.,
of the State;
" There are also rules whioh make up a border pro\-iiiee between law
and morality, rules which may equally be regardt'd as moral or as legal
(accompanied by legal prosecution) or in which it is doubtful whether
legal prosecution
can be considered.
479
99]
[Pakt
II
is
way
and
in
We
In
Berner.
spite of
in opposition to
many
excellent
comments
for
which we
system of ethics of
J.
Hegel's idea of elimination of the wrong to one of retribution (measured according to the intention ^^ as evidenced by the external
injury).
Moreover
and
this
is
discretion s to the
is
quantum
of the
p. 21.
The
is
hereby
it
480
Chapter VI]
99
purposes
which
Hegel's
is
deserving of notice.^^
It deals,
we may
say,
tendency
more with
...
cubat et dormiat in sacco, ut pra?teritas delicias, per quas offenderat Deum, vitte austeritate compenset." ^^
Kitz has very correctly combated certain objections which could
pria delicta
et
for the
whom
lie in its
commission of a grave
oft'ense,
31
Thus
p. 35.
481
lOJ
(Iocs
off
with a
slif^ht
[Paut
II
That
and become
punishment.
habitual, is to be considered as the motive, and thus the punishment rather increased. The distinction between punishable crime
and mere immorality is marked by the fact that the function of
the State is limited to counteracting encroachments upon moral
freedom, and that within this province the State fixes and controls
the suffering afflicting the senses which seems necessary for the
rescission of the
immoral intention.
It
is
For
commendable form
of punishment, while
ment seems an
especially
is
objectionable.
of the
(i.e.,
Canon law
by
inflicted
the State)
suft'ering,
and on the
must be
suffering.
right to punish,
if
the evil which (according to the view of the State and also according to the statute)
must be
inflicted
In this the
upon him.
official
This would be
its trace.
The
reality
Heinze.
The theory of Heinze,^ which in part at least stands
upon the basis of Hegel, is complicated and perhaps difficult to
comprehend in the sense in which it was intended. One cannot
of criminal
In Von Holtzendorff's
"Handbuch
pp. 321-344.
482
I,
Chapter VI]
100
deny its searching glance into the nature of wrong, of law, and of
but on the other hand (as Laistner's criticism ^
punishment
has revealed and manifested) it exliibits a certain wavering back
and forth between various principles and a certain obscurity.
Heinze very correctly perceives that a proper theory of criminal
law must also be adapted ^ to historical development and to the
various, and perhaps also imperfect, manifestations of punish;
ment.
He
to
consider
principally,
From
or a " suffering."
punishment that
it
Both of these
legal community) is recognized.
punishments are diminutions (" ^Minderung ") of rights {i.e., of
The undergoing of the punishment by performance
the criminal)
of something and the fulfilment of an obligation frees from the
diminution of right in the future, yet it directly asserts the diminution of right in the most direct and actual manner ^ and it follows
from this conception, as Heinze argues, that it is an error to assume
punishment ^ a portion
even though it was certain from the
beginning that the punishment would not be inflicted. Even
before the commission of the crime, the punishment has an independent existence. In the criminal statute or in the rule of criminal law founded upon custom two aspects may be distinguished
the ideal one lies in the judgment tliat the punishment is tlie legal
tiiis
Pp. 169-178.
The
483
100]
[Part
II
further interest in
him who
is
expelled,^
It
real
punishment.^
conception,
little
who has
is
no special
paid what he
is
ment when a
practical,
and there
is
real
is little
by
have the right to choose banishment from the society of the State
Heinze is able to
avoid this result, which would be quite acceptable to our modern
instead of undergoing public punishment?
by appealing
civil society
progress.
which furnishes the basis for rights." For this reason " there
cannot be ascribed to the individual criminal the right of choosing
a voluntary withdrawal ^ from the State and the association of
civilized mankind in preference to undergoing the punishment
which will rehabilitate him in the State. This would be directly
to allow him that which constitutes the essence of the worst crime,
viz., a complete lapse from civilization expressed and accomplished
by a withdrawal of one's self from the State and from ci^'ilized
humanity." According to this, any one, who, as a hermit, betook himself to a desert island would thereby commit the worst
^ Considering it practically, what would be thought if a society first
expelled one of its members and afterwards punished him under its by-laws ?
But the reverse is quite conceivable.
' And yet a certain efifect of grave crimes that have been atoned for,
an effect which would apply to honor, although perhaps no longer to be
fixed by law can never be eliminated.
Such a thing is also not to be
desired.
^ There is hereby manifested the correctness of the course of thought
pursued by me in a reverse fashion in the "Grundlagen des Strafrechts",
which Heinze however has scarcely noticed.
' The indi\idual State does not, however, completely represent
this
For
general union, particularly since everj' State is not equallj^ civilized.
the contrary view, see Laistner, p. 173 and Heinze's own statements in
opposition to Stahl, Heinze, p. 300.
484
Chapter
VI]
[100
One may
If
rise to
right,^
and the
civilizing
it
duty
Otherwise
there could be inferred from the civilizing duty of the State the
right to improve (all) individuals through punishment as
might seem desirable to the State.
As a matter
two
Laistner, reveals
of Hegel
^^
far as
it
supported later by
To the system
is
reunited
ment
by punishment.^-
''
If
on both
we
we
which
relies
missionary duty."
starting-point.
We
We
485
101]
[Pakt
II
The
may
criminal punishment,
is
^^
that the
State has the right for the sake of the public welfare to gain
its
enon or
its
process constitutes
its
special position
The
^
phenom-
doctrine of
will
be men-
Von Kirchmann
This renunciation,
in a peculiar
and those
of the police,
ed., 1873).
Chapter VI]
existinjj; in
God
of
101
development or
being.
and
since
it
considers
prerogatives.^
itself
is
no morality,
Now law in
its
very nature,
"Grundbegriffe", pp. 62
P. 113.
el seq.,
and especially
p. 65.
487
101]
the "
veil of
Maja
[Paut
II
entire truth, the individual believes himself distinet from the rest.
Also,
if
harm
its own
inflicts suffering
in reality brings
to himself,
carries in itself
retribution
vengeance,
is
and as a
;
upon another,
this
Law,
which every living being is imbued. Law and the State therefore
have nothing to do with true morality, which is only in the common
feeling, in the recognition that one is merely part of a whole,
although law has its origin in morality to the extent that it marks
the point to which the will of the individual can go, in its own
assertion, without denying the existence of another will, which is
The State is based upon wellin any case a violation of morality.
"
"
one
desires to suffer wrong.
no
because
egoism
calculated
one
Up to a
desires
no
to do wrong.
contrary,
the
Morality, on
"
Wolf
with a
A
both
can
be
the
same.
of
the
result
point
certain
the
The
statute,
i.e.,
lamb."
criminal
harmless
as
a
is
as
muzzle
the
other
than
statute,
is
nothing
criminal
in
the
contained
threat
" muzzle " for the egoism.^ If this " muzzle " required victims
in the enforcement of the punishment, then, in Schopenhauer's
to meet the criticism
sense, one could simply find consolation
that the criminal must have been sacrificed for others, one could
;
say that in reality the punishment was not inflicted upon one but
upon all. And also, for other reasons, it would be permissible to
et seq.).
p. 408.
488
Chapter VI]
and hence
remarked
all
its
herein
are equal,
own
it
not do to leave
will
brutality.^
101
He
accordingly
"
a fragment could be acknowledged in the " practical reason
under the domain of ethics. In a subjective mood (and so frequently that the reader finds difficulty in observing it) he shifts
the scenery between the world of appearance and the world in
abstract.
" blase."
If
it is
the philosophy
disagreeable,
the sensitive
Practically regarded,
things
become
is,
and
prisons.
It is
This s\Tnpathy, however, does indeed lead to a noble suggeswhich can be turned to good account in the criminal law
We are made of the same material as the criminal whom we condemn we all share his guilt with him therefore we may not
tion,
There
489
101]
arc
many
[Paut
II
one must
a(hiiire.
ciples as absohitely
And even
if one regard his funflamcntal prinwrong, one can only agree with him in his
a product
and
punishment
its author.^^
of nature,
(like Hierokles)
my
490
Chapter
VI]
101
'
own
sake
we must regard
'
We
as immoral.
cer-
but rather that sin may not be committed." This view does not
need to consider justification of punishment as being justice in
The
natural impulse
is
there
Thus he says
"
important adherents.
And
it
is
'^
491
12]
[1^\UT
II
future the time will have passed hy when the demand that
the State's power shall not without aim or purpose destroy the
lefj;al rifi;hts of niem})ers of the State, can be dismissed merely as
<listaiit
with each
so
other.^^
conflict
Ultimately this entire tendency, rejecting every absolute prineven von Liszt ^ cannot deny) rests and is even expressly
ciple (as
will.
is
Kule.
of
Binding,
who
and the State enacts and makes use of these rules.^ For disobediit demands satisfaction in the punishment.^
Yet
ence to a rule
is
somewhat
like
payment
of
duty, which the State claims for itself in its criminal legislation,
is determined by the consideration whether the evil of not punishing
is
since the
2.
Cf.
und
ffentl.
Recht"
(1877), pp.
ber
gemeines
^ In so
far as the State is considered as acting absolutely without
restraint, it is not clear.
Moreover, in the very first principles of the
^'Grundriss" right and law are confused with each other. "Punishment
is the loss of legal rights which the State imposes
for satisfaction
for an (of the offender) (his) irreparable breach of right, in order to maintain the authority of the violated law."
* "Grundriss",
p. 110.
.
492
Chapter VI]
punishment
whom
it is
an
also
is
evil,
for those
102
upon
inflicted.
Von
Liszt, himself
...
We may therefore,
from
is
own
ourselves abstain
Whence
it is
is
we
while
is
not a
the State
why
we
is
Laistner.
If
abo\'e, Laistner's
correctly
work has
Laistner
theory,
ing's
we
exercised
so that,
the right of the State to punish and the duty to punish
while the right is based upon justice, the duty can be fixed and
;
We
expediency.
considerations of
Laistner's
own attempt
is
herein-
to establish a theory of
It reminds one of
criminal law is indeed quite extraordinary.
Schopenhauer's theory of right and wrong, although not of
Schopenhauer's theory of criminal law, " The criminal, while
intruding upon another's sphere of will and right, is in iiis own \iew
the master thereof the injured party, however, accepts only the
;
is
it
is
not a right,
it is
manner use
is
a privilege.
to be
made
of this right,
is
and in what
these are no longer
far
morality."
5
8
'
p. G.
102'/]
is
in
IPaut
The
Now
if
Laistner does not limit the " right " so exclusively to the
must conceive,
if
Laistner
e.g.
does and
Or, expressed in
And
no philosophy of law.
waves
of
complement Von Bar's work and render unnecessary any supplement here.
*
C.
Ueber tretung",
494
ihre
I,
p. 184.
Chapter VI]
Criminality "
it
if
102a
therefor.
De
he
groups
the
various
(I).
(1)
Cams,
Lavergne,
IMaudsley.
(3)
Statistics
Quetelet.
(II).
Ferri, Garofalo.
Development: A. Anthropological theories: (a) Atavisfrom Bordier to Ferrero (6) Theories of degeneratic theories
(c) Pathologic theories
from lagnan to Dallemagne
tion
Lewis, Benedikt, IngeCapano,
Roncoroni, Ottolenghi, Perrone,
(III).
gnieros.
ries
B. Sociologic theories
caro, Aubert,
Nordau,
Salillas;
(c)
theo-
Anthropo-sociologic
(a)
(h)
Social theories
Socialistic theories:
Vac-
Turati,
Loria, Colajanni.
Criminal
II.
Origins:
(I).
Law and
Penal Science.
Beccana,
Howard,
the
International
Prison
Congresses.
(II).
ers
Tendencies:
Liszt,
Prins,
De
present day.
1
1911
Law
Ed.]
Modern Criminal
;
495
APPENDIX
A CRITIQUE OF THE THEORIES, AND AN EXPOSITION OF
THE THEORY OF :M0RAL DISAPPROBATION (REPROBATION)
By
103.
Von Bar
C. L.
of
the Absolute
Relative Theories.
Merits of Hegel's Theory.
Morality as the Basis of
Defects
108.
and
es-
Retribution.
109.
110.
ity in its
Narrower Sense.
and
Crime. Hegel.
Hlschner. Merkel. Relation of Tort and Crime.
Crime Distinguished from
Tort.
Violations of Police Reg-
Tort
The
Va-
Relation
Violations
of
to
Three
of
Police
Crime.
Regulations
Characteristics
General
Violations of Police
Regulations.
Disciplinary Punishments.
Initiated
Parties.
by
of
111.
Lack
The Idea of
ExDisapprobation
pressed by Other Writers.
it is
Definiteness.
Discii)linary
Summary.
of
Relation of
Private
But as
Punislunent.
in
Types.
sirability of Prosecutions
107.
Principle of
Criminal
ulations.
rious
106.
The
PunishParsimony in
ment. Expediency and
105.
Justice
Judgment,
Ethical
Not
What
ished.
Law.
104.
Punislimcnt in .\ttitudo
Offender.
towards
the
Varieties of Disciplinary Punishment.
Other
112.
Summary.
Chapter (D)
497
of
critical, it is
APPENDIX
103]
103.
sideration of
all
Con-
reveals that none of either the absolute or the relative theories has
been satisfactory.
The
theories
must
also be charac-
for
both with
is
utilitarian purposes
It
is,
is
reconcilable
of history.
This
It
Von Bar's own theory is on the whole the most complete, correct, and
Tvell-balanced of any contributions to the subject.
Ed.]
2 CJ.
also Sontag, in Dochoiv's and Von Liszt's "Zeitschrift fr die
gesammte Rechtswissenschaft" (1881), pp. 486 et seq.
^ In this respect, Hlschner, "Das gemeine deutsche Strafrecht", p. 4.
carried his point as against Merkel, "Zeitschrift fr die ges. Reehtswissenschaft" (1881), p. 555.
498
APPENDIX
103
i.e.
forfi;iveness corresponds
that existing before the wrong,
but that the payment of an evil with an e\il presses down further
one end of the scales. ^Moreover, as we have prexiously stated,
there is nothing in the conception of right which requires an active
prosecution of the criminal.^
is
and thus
of ethical action.^
"Phnomenologie des
The
it
minimum."
Then-fore to a certain extent law even protects unethical conduct,
the unethical use of a right for one's own advantage and the disadvantage of another. If all morality w(>re included within the law,
'
e.g.
499
it
ethical conduct.
APPENDIX
1031
may merely
value.
system
is,
as such,
more or
less
directly.
Ethical
as a Necessary
power
of a natural impulse.
The discovery
of
some
especially
we may
500
APPENDIX
104
In natural
man
own
injury
is
not necessary.
On
the contrary,
where man is changed from his natural state (i.e. of isolation) into
that of membership in a certain association, where he becomes a
Z(oov ttoXltikov, this judgment, although with less spontaneity, is
likewise provoked and occasioned by the malicious injury of (others.
Disapproval of an Act Entails Disapproval of its Author.
This
diapproving judgment prevails j)rimarily against the act. But
of necessity it extends also to its author for an act cannot be contemplated independently of its author. If the author is not known
individually, there appears always in the act, although in hazy
and indistinct outlines, a mental jiicture of the author. Whether
we may start from the acceptance of extensive freedom in human
action, or from the assumption of complete determinism (the
" operari sequitur esse " of the Scholastics and Schopenhauer),
the deed appears as the product of the nature or character of its
In our disapprobation of the act we also always express
author.
its
author.-
Why
Baumann, "Handbuch der Moral und Abriss der RechtsphilosoVon Ihering in Schmoller'' s "Jahrbuch fr Gesetzgebung",
(N. S. Vol. 6, 1882), pp. 1 el seq.; and especially in contradiction to
1879);
phie" (1879)
etc.
501
APPENDIX
104]
maniitT of
its
concrete expression.
that
sion of
it is
of
we
will
seek
to establish
first
in the
moral judgment of an
its
act,
disapproval.
itself
formal or informal,
is
irre-
less
deathblow.
According to our view, that which we are accustomed to call punishment {e.g. deprivation of freedom or property) is only the amount of
punishment. Cf. the derivation and earlier meaning of the word "Strafe"
("punishment").
''
502
APPENDIX
the necessary attribute of morality
(as will
exist
be at once conceded), a
of
human community
humanity would be
could not
altoj^ether impossible,
Every disapprobation
thing) of
its
of
an
act, or
104
is
an
who disapprove.
he had not given reason for
disapprobation. If it were desired to do this, then the disapprobation should be removed by some " factum contrarium." If
disapproval of an evil act did not find some real expression (this
may consist merely in the withdrawal of the confidence previouslxhe
is
One cannot
reposed in
treat
its
him
entirely as
if
would abolish morality for this would render necessary the assumption that an act contrary to morality was not prejudicial
to the moral standing of its author. If the precepts of the Founder
of Christianity commend something dift'erent, it must be remembered that in part they are expressed in the excessi\'cly emphatic manner characteristic of oral statements. When directed
towards an individual case, this stronger method of statement
can seem justifiable; and these precepts were primarily intended
to govern the private intercourse of a small circle who called themselves the " Children of God."
The application of the moral
principles of Christianity to the Christian State was left to the
future.
But even in case of the most complete forgiveness (for;
giveness in the sense that not the slightest intentional evil accrue
to the wrongdoer as the result of his act), yet there always remains
evil deed,
which
entails for
him a
disadvantage
if
rules of
individual
conditions of
" Let
its
existence.
N.
it
regards as the
as a heathen
and a publican."
503
''
Since
APPENDIX
104]
same,
it is
human
race,
all (as
Accordingly every expression of disapproval, even where it involves complete destruction of the offender, or any other conceivable injury to
in respect
him
as
an expression of
to the offender:
"Jus
this disapproval,^
Isesi
infinitum."
is
The
justice
latter
A remnant of
prominence to a certain principle of justice.
the original conception always continued to exist. Even the
strongest adherent of the principle of justice in its ordinary sense,
which would measure the justice of punishment in accordance with
its method and amount, cannot to-day fail to perceive that to a
certain extent the criminal
Any
and
it would be impossible to in
purpose of reforming the criminal, etc.
Otherwise
disposition of society.
for the
carries with
it
may
to a certain
Disapproval
law
is
exemplifies
Not
the
Retribution.
foregoing
The
idea
in
history
its
of
criminal
course of gradual
H aller,
On
{e.g.
50i
APPENDIX
advancement.^
104
fixing of the
an independent
still
principle.
It
is
There
It is possible
who
"
must be destroyed.
injury,
because evil must
be requited with evil." This idea is of later origin, and was
long ago proven to be inapplicable for the criminal law of the
of divine justice to say
do an
State.
is
only
or sorrow,
if
and regard
the evil doer or, what amounts to the same thing, it turns against
him but to find its principle in causing pain to the evil doer, is
;
logically impossible
and
is
is
If
The first
chiefly introduced for the suppression of private vengeance.
and as
point^ however, merely corresp(mds to the law of development
far as the second point is concerned, it may well be asked whetluT vengeance also does not contain tiie element of disapprobation. I Irici
would regard vengeance merely as retrilnition and al)sohite!y repudiates
Then punishment inflicted by tlie Slate would he a eomi>lftely
both.
new principle not in harmony with history, a thing which is historically
;
false.
*
This opinion
is
expressed by Merkel.
505
See ante,
99.
\
APPENDIX
1041
the thief has (Hfhculty in fin(Hn^' some one to receive the stolen
goods, because general honesty sul)jects the
scrupulous
test,
theft hereby
i)rofit
title of
a v'endor to a
is
in
If
disapproval
is
many
perhaps superfluous.
Consequently punishments
may have
that ideal
approving,
it is
eft'ect
In
its
order
author)
of its author
inflicted
is
will
There
ment
ment ?
506
APPENDIX
of the punishment.^"
evil,
If
104
may
The
makes
it
in
sentence, which
minds
is
itself
as portrayed by the
necessary that
the judicial
nothing other than the fixing of the act in the
it
It is
later, after
We
of the convict.
by the
foolish
modern moxement
(so
totally at
history) to eliminate
amount of
ment to be
variance with
fixing of the
of the punish-
As previously
remain
but
at least
it
else.
not be publicly
is
verified.
not manifest to the public and which canThe individual criminal may be reformed,
among
will
continue to flourish.
However,
retribution of evil,
i.e.
first
if
making
no
wickedness, since the deed of the criminal does not afford an adequate criterion for its accurate measurement.
Furthermore, the punishment of disapprobation can never iu'
supplanted by suffering which comes upon the criminal as a matter
of chance, even if this is a result of the crime and rcNcais (as they
'
p. 4,
507
APPENDIX
104]
of
temporal
If
Therefore,
whether or not the criminal in the individual case finds the punishment an evil makes no difference. He may even regard it as a
benefit,
as e.g. perhaps in these times a criminal, who is not completely pernicious, regards with favor the prison which keeps him
from further wrongdoing and furnishes him instruction. We
should not for this reason change the punishment, so as to cause
him suffering. According to Plato's ideal conception, the offender
should ahvays regard the punishment as a benefit.
If pain were
the essential element, why should w^e to-day be so violently opposed to torment and torture of convicts ? This would be nothing
other than a mistaken feeling of humanity, and there would still
arise the question whether a short punishment entailing se\'ere
physical suffering or even mutilation, where this does not afTect
{e.g.
The
is
not pref-
fact that
we
find
However, the treatment of the offender must always be expresand so far, but only so far, it is proper that
the punishment should contain a disadvantage for the condemned.
Criminals should not constitute a favored and pampered class
(this is a consideration which obviously opposes the extreme
sive of disapproval
thing
institution
it
is
preferable
not
to
be
508
punished.
of
an
penal
institu-
APPENDIX
However
great
may
lO
passion which
aroused by every
is
human
"
With
failure,
all
the com-
be
it
moral,
is
the
criminal,
is
as
coercion brought to bear upon him, to the extent that the criminal
is
should be tortured.
In disapprobation there
reformation.^'^
105.
We
punishment consisted
between the injured party
the community) and the criminal. Accord-
earliest
may be,
509
APPENDIX
105]
if
benefit, or as a
The development
seems.
we
all
Germanic
This was
an
rights,
Disapprobation as a punishment, when inflicted by the individual, lacks not only (as is obvious) a definite objective amount,
but
it
its in-
unlawful.
between various
Upon this transfer of the criminal law to the State, there arises,
from the right to punish, a duty. That which the individual
has heretofore possessed as a right is taken over by the State, as
it were, with trustworthy hands
for careful administration and
not for arbitrary exercise or neglect. In the hands of the State,
this right becomes a duty
a duty not only of the State but also
C. L.
et seq.
(c.
34).
510
APPENDIX
of society.
punishment at
must prosecute
actively.
whom custom
if
will
1U.3
cannot
fore^'o
As
far as
its
it is
It is in
the
same
he has him
in his i)o\vcr or
all,
the
State becomes less able to consider or assume that the mere pri\ilege of harming the criminal entails for the latter a real conse-
quence, even apart from the fact that this inxolves a possibility
of degenerating into the old barbarous custom of \cngcance.
Desirability of Prosecutions Initiated
by Private Parties.
There
It
is
bear in mind that the criminal law, although in a rather crude form,
is older than the State itself, and that it must not be used to further
temporary purposes, e.g. that it must not be used or misused perhaps to punish those having one tendency and to spare those having
another. If criminal law were in all respects an original attribute
of the State, such a course would not be so injurious and demoralizing.
The
possibility of a
The
individual
is
may
is
less
adiial coercion of
morality.
^ That for a
Ions time a different condition ol)taincd among tiic Ki)mans
has been stated above; l)Ut this is not evidence ajrainst tlif arfriMiicnt in
the text, since it was not utdil later that this rifjht of e.xile aro.st-, wlu-n the
pride of the Roman citizen no longer allowed an nclii'C exerci.se of the
criminal power.
* E.
\'()n /fnrlmniin, "Phiiomenol()t,de", p. 202, justly calls atti-ntion
to the fact that this i)roc('ss of transfer has by no means comph-tely ended.
It is in part upon this that, there depends tlie continu(>d existence of duelling in spite of the criminal laws.
511
APPENDIX
105]
l)arty in
jurist,
Faustin
Ilelie,'^
has stated:
criminal
prosecution rests
instituted
by a private
citizen
the idea that this despotic power of the criminal authorities injures
society manifests itself in an elementary way in lynch law and
This also has a bearing upon the fact that legisacts of violence.
lation in criminal matters
far
The
that
and
from popular
may
be seen a
in fact has
been
raised
only disapprobation were involved, one might in legisno farther than to set up general principles which would
disapprove of one act or another. However, in this objection it
has been overlooked that there would be no recognizable inclusion
It is
of the act under these general conceptions or principles.
the vengeance of the injured party, the punishment inflicted by
the State, which first declares that this concrete act deserves disapproval and is absolutely reprehensible. This immediately
becomes clear if one considers that there may be various grounds
ment.
If
lation go
crime.
elements
of
this character
is,
as
it
judicial decree
is
decrees which obtains as a decision for the individual case in advance of the actual decision. It would soon become otherwise if
512
APPENDIX
this, it is
106
how
falsely in the
absence of
Summary.
106.
Summing
is
as follows
maxims
of morality."
The Idea
foregoing
is
of Disapprobation Expressed
by Other Writers.
The
my
honored friend, Hugo ]\Ieyer. lie, however, is unable to free himself completely from the traditional view that the scope of criminal
law and the amount of the punishment should nls-o be derixed to
a certain extent from absolute justice. For this reason he often
speaks of retribution and conceives punishment in the sense of
His
Hugo Grotius as " malum passionis ob malum actionis."
" The legal basis of punishment consists
words are as follows
simply in this It results from the very nature of the State that
^
in cases of necessity
it
punishment."
The statement
community by the
]Montesquieu
of
infliction
also
of
amounts
The statement
of
the great Leibnitz (given above) also exjiresscs the idea tliat exclusion from the community, a thing resulting from disapprobation,
is
"
513
APPENDIX
lOG]
which he certainly
is,
as contrasted to the
The theory
punisliment
is
aimed.
It
According to the
tion.
community
of reformation
is
latter,
The
deterrence theory
is
our view in regarding society, and not the criminal, as the chief
But, on one hand, it takes too mechanical and base a view
issue.
of the relation between the criminal and society, and on the other
hand
it
pays too
however, (as
place
(or,
little
Hugo
among the
we prefer
as
attention to history.
It
is
quite proper,
its
means
of
punishment,
soon render
itself
impossible.
IMoreover, credence
deterrence in
its
may
is
of
who
its
chief effect
upon
etc.
Fear
of
an
indefinite
when
The
it is
a great mistake,
Therefore,
taken.
evil
illustrates
514
APPENDIX
criminal system destructive of sentiment.
Tlie truth
of vision
the whole,
people;
about
it
that
is
lO
rather
is
clearness
He
that,
says
upon
" exclusion
people,"
it
makes no very
whether,
icitliin
certain,
limits,
in
more important.
If here the
proper distinction between honorable actions and disiionorable
actions is not drawn, and if e.g. persons who are generally respected
blunders of
legislation
are far
but who have failed to comply with some mere regulation of the
perhaps even from considerations of conscience
are
treated as common criminals, one cannot help wondering if in such
a case an axe is not laid at the root of morality and the legal system,
and if the echo of its stroke is interpreted in the criminal world as
showing that no very essential difference exists between honorable
people and itself.^ Therefore, legislation in dealing with offenses
against mere police regulations should be more sparing with those
penalties of imprisonment with which it is now so liberal, at least
as alternative punishments (at the discretion of the judge).^
State,
As quite
correctly stated
by Von
Ihering, " It
is
life
not disobedience
of society
which
ciu(v>ti()ii
Punishmont
not the worst evil resulting; from frequeiU nonwe would add, actions deserving l)tinishFor this
ment, l)Ut rather the general lowering of the moral standard.
reason, although not for this reason exclusively, the certainty of punisliment is more important tlian its amount. The fact that a tiling trill ho
punished is more important tlian how it will be punished. Naturally this
principle must be taken "cum grano salis."
For this reason that system of tutelage which is now so popular and
which requires coercion, i.e. requires punisiiment, isultimatelv demoralizing.
^ "Der Zweck im Rechte".
(1S79), p. 4SI.
Cf. also Schulze. "Leitfaden der Entwicklung der i)liilosopiiischen Principien des brgerlichen
says that in>^ccurily
punishment
is
of grave crimes, or as
'
(1813),
\).
2.')9.
515
APPENDIX
lOGl
is
merely to overcome
disol)e(lience,
of punishing as
if
"
One
is
means
is
of
The same
objections
may
516
APPENDIX
1(17
disapprobation.
flogging which
ment
is
now
so popular.
by deprivation of property
other penalt}'.
it
but
is
little
of paying,
it
must be changed
it
punishment
is
into
some
cannot represent
That
capital
cumstances
107.
is
ob\'iously manifest.
The Degree
of
is
Punishment.
But
if,
as according to
community, so far as concerns the expression of its disapprobation, what becomes of that justice which we feel is requisite in
the fixing of the degree or amount of the punishment ?
The answer to this question is simple. This justice appears
only by considering the historical element in criminal law.
It
depend the life of society and therewith the life of the State) are
not commensurable. If they were commensurable, then the theory
of retribution would be tenable, at any rate theoretically, if not
practically.
For example, how can one balance the larcenous
taking of a purse with a year's imprisonment? And even in the
the balance
death penalty
the favorite example to adduce
If a murderer lies in
is very imperfect, at least in many cases.
wait for his victim and by a single well-directed blow strikes him
dead, is such a death physically equal to the death on the scaffold
the
Criminal law
517
APPENDIX
107]
No
of discretion.
room
is
primarily
two and one half or three years in prison should be the proper
Nothing can be said as to absolute justice or injustice
penalty.
in regard to the question of solitary confinement or ordinr}' confinement for a prisoner or his employment at one task or another.
Within this rather extensive province the State is given a free
The
State
It does
is not the blind instrument of an absolute principle.
"
",
rather
mundus
but
pereat
Fiat justitia
not adopt the maxim
:
the principle that justice prevails that thereby the world may
continue to exist.^ Our principle is absolute only in the sense
first
mentioned.
judgments, so
is it
1 Herein
the principle adopted differs very essentially from all tlie
absolute principles heretofore advanced, in which it is quite inipossible
to preserve room for a discussion of purposes of expediency ^vithout a
breach of logic. Even Hegel does not seem to have understood this
point.
It is in this sense that I have stated that punishment is a designed
and artificial measure for the individual case ("Grundlagen", p. 9).
Heinze (p. 298, note), who indeed recognizes a reprobation theory as a
logical development of Hegel's principle, has therefore misunderstood me,
since he seems to regard this "designed and artificial measure" as a deviation from the absolute principle of punishment.
518
APPENDIX
108
of the
individual.
not the objects of the disapproval of the State, although they have
a remote effect upon the interest of others and of the public at large.
This is also in accord with many practical reasons, such as difficulty of determining the questions of fact, of guilt, the imperfect
equipment
party toward
whom
it is
directed,
and
since
it
always
(in
criminal procedure)
much
and
parties concerned,
evil
since
fail
it is
The
Principle of
Parsimony in Punishment.
In former times
human
Beccaria
lavishly.
is
The
economy
is
aspect of
important.
attention comprehensively
by Von
Ihering,^
it
is
recoils
upon
society.
Thibaut
'
indeed
This phase of tlie subjeft finds ob\-ious applifation to the means an!
of punishment. Cf. WdhUn-rg, "C'riminalistisclie und nationalkonomische Gesichtspunkte mit Hcksicht auf das deutsche Reichsstrafrecht" (1872), pp. 96 cl xc(i.
3 "Der Zweck im Rechte", 1, p. 477;
cj. p. 362.
^ "Beitrge zur Kritik der F'euerhach'schen Theorie" (1802), p. 103.
-
the
amount
519
APPENDIX
108]
We
would at
"
which the
There
that
it is
if
history, or
5 Von Ihering,
pp. 478, 479, pertinently points out that e.g. in business, dishonestj^ may become so great that it cannot be counteracted by
civil remedies without great injury to the communit3^
520
APPENDIX
undermine the
create indifference.
One must
little
demand
The
suppression by punishment.
ual,
member
Too
many punishments
not
108
imagine
violation of right,
may
come
it
must
to an end
re-
and
that Nature has guarded against the trees growing up to the sky,
it
is
really one
it is
not
more
in-
Punishment.
While, upon our
theory, the choice of acts to be punished by the State is determined
by numerous reasons of expediency, yet there is here no antagonism
between expediency and justice. It is rather that, from the standExpediency and
Justice
in
" Thibaut, "Beitrge zur Kritik der Feuerbach'sehen Theorie" (p. 100),
says that the ruler does not stand so high and is not the representative
of God upon the earth in the sense that he can enact eriniinal statutes in
To punish in viohition of
eontlif't with the sentiments of his subjects.
prevailing opinion is not conferring a lienefit but rather is inflicting a
punishment upon the nation. This matter is no longer an issue in constitutional States, but nevertheless temporary opinions and disturl>ances
can be utilized to extort the approval of the representatives of the people
to perverted criminal statutes in violation of tiie spirit <)f history and the
entire legal system.
A notable e.xample of the opposite kind resistwas furnished on Oct. 2(). ISSO. by the
ance of temporary opinion
Minister of Justice of Holland. Modderniann, when in a long argument
he undertook to disprove the alleged reasons for tlu> rcestablishnient of
"
Mnchthe death penaltv.
Cf. the translation of this argument in the
ener kritische Vierteljahrsschrift fr Gesetzgebung und Rechtswissenschaft" (1881), Vol. 23, pp. 9 d seq.
521
APPENDIX
108]
and expediency.
The
and such
it
does
when
it
"
it
defines
purposes of expediency which for all of these cases are the same.
It is not a departure from justice for purposes of expediency, but
rather genuine and exact justice, when the State inflicts a lesser
degree of punishment for an attempt at a crime than for the consummated crime, or when it pays so much attention to the outcome
in a question of
punishment, or when
it
matters
is
is
ignored but he
who
steals
illegal
or
act.
is
not precluded.
In-
ultimately practically nothing is left for justice (even the justice of the
"Cogitationis poenam nemo cogitur" tends to disappear), or that the
just pro\dsions proposed by Meyer rest just as much on grounds of expediency as those which lie places in the di^^sion of expediency. The
practical result of Hugo Meyer's \aew would be a tendency to extend the
i.e.
For the justice
criminal law to many acts not now punishable.
is
according to Meyer, if one closely consider the inner immorality
upon first glance the same in many acts not now punishable or only
lightly punished as in many which are punishable and punished severely.
This questionable tendency is also very prominent in Hugo ^Meyer's
In opposition to Meyer, cf. Merkel, "Zeitschrift fr die ges.
treatise.
Straf rechtswissenschaft", 1881, pp. 56-558.
522
APPENDIX
deed, this appears decidedly possible
if
we compare
108
them
is).
But
is
in a posi-
State's morality, together with the fact that the State, not being
infallible,
makes
it
come
But such
which
Epoisni,
conflicts are frequently based upon an illusion.
itself into accord Avith general morality, flatters itself
not bring
with the idea that
will
its
condition or
its
decision.
8 With
this and with his statements previously
Meyers ("Lehrbuch", 4) objection that in regard
moral sentiments
523
APPENDIX
108]
But
tion of
all this is
human
afi'airs.
(or
existence.
(i.e.
torts)
("Forgiveness of injuries
(p. 192).
suffered may be favored by religion and morality", but it can never be a
principle of a legal system since it would make wrongdoers the lords of
society.")
But Rmelin's principle is completely untenable, from the
historical standpoint.
The "talio" has never been a fundamental principle of the criminal law, but only a principle tending towards moderation.
It may also be asked whether this idea of equality, which closely regarded,
is merely an idea of relative evils, has any claim to preservation.
In the
statement of Rmelin above quoted, the idea of deterrence, otherwise
only incidentally observed, creeps in, since punishment, i.e. not forgiving,
the remark that otherwise the WTongdoers would become
the lords of society.
10 "Der Zweck im Rechte", I,
pp. 480, 481.
is justified bj'
524
APPENDIX
109
It
is
the
distinction
criminally,
positive law
between
since,
and a
Hegel's Distinction.
and
The
positive
law shows us that there are acts of negligence which are j)unished
criminally, and that on the other hand there are cases of wrong committed quite intentionally which nevertheless remain merely t(rts
for example, when a person, openly and with knowledge of its
illegality, but without other violence to person or thing occupies
a piece of ground belonging, to another, or when one shamelessly
refuses to discharge an obligation of debt unequivocally entered
;
into.
law
It
is
525
APPENDIX
109]
and
"malicious"
not
terms
something is objectively quite trivial and entirely without danger, then
it would be absolutely improper to put into motion the clumsy
machinery of criminal justice which entails such heavy expense
This is apparent from what has been stated in
for the country.
transfircssions."
which
in
"Trivial"
are
But
if
regard to the determination by the State of what acts are punishOn the other hand, when the individual is dealing with
able.
especially important rights or interests of others or of the
com-
munity, this very fact in its purely moral aspect should serve to warn
him not to injure unintentionally such rights and interests and
As a matter of fact, the punishment of
also to exercise caution.
injuries caused by negligence is thus to a certain extent justified.
But only to a certain and limited extent. On the one hand, the
rights and interests wdiich are concerned must be of especial importance, and on the other, these rights and interests must be such
that the fact of their being jeopardized must be easy to perBy way of illustration, the general inceive in concrete cases.
terests of the State are certainly important,
juristic monstrosity,
limit itself to the intention, but also takes into consideration the
external effect of the act, so to a certain extent the private law pro-
require
intention
as
it."
is
Hlschner's
Hlschner's Distinction.
2
^
526
in
To
APPENDIX
principle, while a tort
is
But
109
ri<;ht,
this concei)ti()ii
is
from the
cases,
thief in steaHiig
Yet
''
Hlschner's distinction
is
neither in
harmony with
the positive
would be furnished.
Of greater
practical value
is
that
Stahl,
acts
11, 2,
a negative rchitioii.
IS."),
'
"Normen",
I,
pp. 154
cl sc(j.
527
APPENDIX
109]
But
while crime represents a positive attack upon the law.
taken in a strict and precise sense this principle is also incorrect
But it
for mere absence of action may well constitute a crime.
is admissible in the sense that an act which is to be punished must
be distinguishable by definite, readily determined and comprehensible characteristics from those acts which the law does not
punish; and it must, as it were, be given " positive " expression
It is only
in contrast to the permissible acts of every day life.
as thus conceived that this criterion leads to expedient and realistic
results
prived.
The
guilty parties.
Law
"
is
master
how
{i.e.
in tort) incurred
by agents
INIerely to raise
(e.g.
li-
the
obligation to
pay damages
Crime.
]\Ioreover,
one
may
not,
as
Binding has done, draw the general conclusion that the distinction
between tort and crime is purely a creation of positive law,
528
APPENDIX
109
is
distinction,
is
in punishment.
This
is
neces-
it is
We
have not
derived punishment from the law but directly from the principle of
morality. The problem why at one time the legal princijile as-
sanction
is
punishment and
of
later
people." "
of civil justice
12 It must be admitted, however, that a striet olilifratidn to make indemnity can exercise a deterring and disciplinary inthieiice. CJ. /^/"A".
"Die Ermittlung des Sachverhalts im franzsischen Civilprocesse'", I
(1860), pp. ."j91 el seq.; Von Bar, "Recht und Beweis im Civilprocesse
(18(37), pp.
" Cf. R.
24
el seq.
Lning,
seine Rechtsfolgen
,r
,.
.
Vol.
r
1
Tlicse
writers,
liowever,
with the characteristic predilection of authors for tlie object of thir investigations, seem to regard the reintroduction of such legal rules as
desirable.
'^
Von
Ihering,
67.
529
Privatrechte
"
.
p.
APPENDIX
101)1
For, as
is
we have
it is
so
seen, this
With
this assumption,
beings.
in the following
manner
one wdio
is
it is
is
self-redress.
guilt
is
of
It
is
in private law,
only by an
artificial
yet
it
and there-
upon
guilt.
Especially
'^
Thon, "Rechtsnorm", pp. 84 et seq., in this respect pronounces himaccord with Von Ihering, pp. 5 and 6.
As to this, (/. Von Bar in Grnhufs "Zeitschrift fr das Privat- und
ffentliche Recht der Gegenwart" (1877), pp. 74 et seq., and e.g. "Code
civil.", 1385: "Le proprietaire d'un animal ou celui qui s'en sert pen-,
dant qu'il est son usage, est responsable du dommage que l'animal a
cause, soit que l'animal ft sous sa garde, soit qu'il ft egare ou echappe",
and Pfaff, "Zur Lehre vom Schadenersatz
nach osterr. R." (1880).
" Concerning this, cf. Thon, "Rechtsnorm", p. 106. CJ. also Unger,
in Grnhut's "Zeitschrift" (1881), pp. 209 et seq.
*5
self in
1^
530
APPENDIX
109
indifferent
(although there
may
be inijjortant modifications in
"
upon
bona
fides "
or "
mala
same as an act contrary to morality. He
who unlawfully detains must surrender the object, whether he
possess it " mala fides " or " bona fides."
It is not the object of
individual cases conditional
fides ")
the
civil
is
e.g.
treated the
or to reprove
it.
It
is
is
morally reprehensible,
primary object
source what it may.
rather that
its
is
to eliminate
is merely a
secondary matter that the civil sanction deals more gently with
him who has done nothing immoral, e.g. where one bona fide
has acquired an object belonging to another. The reaction of
the objective
illegality,
be
its
It
the
is
exceedingly obscure.
trary to morality.
It
Cf.
"Schsisches Landrecht",
II,
().">,
1.
Ill,
lle\ssler
''*
;i.
Ifii/sslrr, p.
^''''Das Civilunrecht und sein(> Folgen" (Wien, 1S70).
15, correctly says: "The essential ("lenient in tort is tiu- material injury
Without this there is no tort. Intention
to a material legal condition.
has according to this conception m(>rely an incidental (qualifying) sigthe tracing of tlu>
nificance.
The essential (>lement in crime is guilt.
Witliout tliis there is no crime."
act to the will as its original source.
This had previously ("Grundlagen", p. 44) heen stated hy me, and furthermore I maintained that criminal justice must use (he guilty will as a
foundation, while civil justice does not require it (l)Ut under some circumstances it may). The criticism made by Hiysslrr, p. 11, not- <1 upon
"Grundlagen des Strafrechts " tiiat it was to bo distiuguislu-d from
my
531
APPENDIX
1091
guilt
eliminate
to
to indemnify,
action as the
have
writers
in
respect
to
abstract
charac-
distinguishing
Binding believes that guilt may })e established exclusively as an element of an offense and not as a possible basis
On one hand, the aprioristic basis adof a duty to indemnify.
vanced by Heyssler is not satisfactory, and on the other hand
})rivate wrong is too narrowly conceived as a consequence of human
But in respect to its effect the conception of action (i.e. as
action.
of operation in the external world) can not be separated from the
teristics.^^
conception of
So Heyssler
guilt.
finally
becomes involved
maxim
in the
" Guilt
-^
simple, unartificial and correct opinion would say that the duty to
indemnify in a private wTong, e.g. in a personal injury caused by
negligence
-^
that
is
upon
it
belongs to those
532
APPENDIX
109
who
tion at the beginning of the investigation, since it conceives punishIn a theory which founds
able wrong as " injury of legal rights."
may omit
110.
punishment.
matter.
We
in
of a right
is
is
a simple
criminal law.
This
committing the
act.
or course of action.
is
He may
jeopardy
Nevertheless in most or
many
533
APPENDIX
llOj
remote that
it
in-
dividual.
Furthermore,
it is
on
If this
his part.
performance
is
pro^'i(le(l
be determined by the authorities to whom the community has entrusted the maintenance of such general interests.
In conclusion, it is possible that, because of their very insignificance, actual violations of right assume a different character.
There is something dift'erent in unlawfully picking up an apple
i.e.
and
that
it
eating
it
and
The
smallest violation
is
also
an immoral act
"
the so-called " violations of police regulations
(" Polizeivergehen ") may be closed with these three varieties,
The
viz.
circle of
is
bound
is
such a duty, although perhaps not one upon which there can be
placed a
to
do
{e.g.
money
value)
and violations
significant.
The
534
APPENDIX
110
may
traffic it
Therefore
it
is
is uncertain
that the so-called " Po-
and
flexible.
lizeidelicte "
less of
a punishable character.
It certainly
Since the propriety of punishment for " violation of police regulations ", just as in crimes,
it
is
punishment
punishment
for crimes,
there
must be
guilt.
Purely arbitrary
when it does
Consequently
it is a decided step in advance that the modern development of
law establishes fundamental general principles essentially the
same for " violations of police regulations " as for crimes,' and that
of individuals
is
535
APPENDIX
11()|
feels
a punishment
is
of
as a criminal
And
so
it
is
own author
its
is
it is
no more punishable as a
but rather
which can now and then happen to
regards
them
as something
The
in
doubtless
law",
substantially
it is
the distinction of
"^
regulations "
It is a mistake which
very properly avoids. This is the more so
since acts whose immorality is recognized only after considerable
reflection, and possibly known only because of the pronouncement
of the authorities, are not in a class with those w^hich attack the
modern
legislation
permanent foundations of
human
society.
The permitting
or
ments.
536
APPENDIX
110
is far more dependent upon transitory circumstances and possibly upon purely local needs and conditions.
These are facts which involv'e quick changes in the law. The more
indispensable and stable portion of the criminal law must be
separated from that which is less requisite and more subject to
change. Since the immorality of " violations of police regulations " is only an indirect one, the repression in such cases must be
milder.
Severe penalties must not be applied, and especially not
penalties which affect honor.
Such penalties would confuse the
minds of the people and especially would readily give the impression
that law rests a great deal upon changing and even arbitrary com-
mands and
prohibitions.
The
The
portant.
more
possible for
an innocent
man
is
less
thorough makes
it
The
intentional
would not
justify
He may
e.g.
also
upon
a piece of land.
It is therefore not difficult to criticize the variant views as to
the nature of " violations against police regulations."
There
is
The
But
two kinds
says
of punishable
He
'
"
:
The
wrong
Hugo
true dis-
lies in this.
there are
many kinds
of oft'enses as to
APPENDIX
ll)
among
'
rules of
permanent or those
On
rules.''
guishes, as
officials.
538
APPENDIX
[110
tions
plane as discipline (school punishment, or even parental punishment). Real disciplinary punishment, while possil)ly not excluding the purpose of reformation and the well-being of the one
punished, has as
its first
by the
State,
This
is
and most
not the
certainl\-
not the case with punishment for " violation of police regulations."
It
is
it
is
of
calculated to
of
punishment
When
despotism
in the police
it is
considered
and at total variance with the conception of " government based on rights " (" Rechtsstaat ").
That theory of that class
111. Disciplinary Punishments.
of punishments known as " Disciplinary punishments " (" Disciplinarstrafe ")^ while at the present time of the utmost imporintolerable
by the appropriate
officials
is
in
may
punishment
disadvantageous
results.
ordinate position
is
1
Cf. especially Heffter, in "Neues Archiv des Criminalreehts" (Vol.
13, 1832), pp. 48 et seq.; MiUermoier, Feuerbach's "Lehrbueh" (14th ed.),
Biilnu in BlnnlschWs and Brnlcr's "Staatslexicon",
477, Notes I and IV
Vol. Ill, p. 140; Pzl in the same, Vol. IX, pp. (396 cl seq.; Meves in Von
HolizendorjJ's "Handbucli des deutschen Strafrechts", III, pp. 939 et seq.;
;
Laband,
work
"Das
of HefTter
strafen."
539
APPENDIX
111)
some tliought
i;uilt lierein
is
of tlie same,
prevaihng,
is
which
is
Consequently,
it
who
inflict
these punishments,
if
the object
is
realized,
The minimum of morality required is in exminimum which finds its expression in the criminal
the State. From officials of the State, those who
incidental feature.^
cess of that
statutes of
to conduct themselves in
harmony with
it is
in
'"
punishment
540
APPENDIX
This lack of definiteness
of these duties
duties,
which
is
latter
it is
Therefore
principles.
this
is
it is
disciplinary law,
ciplinary
[111
and
tribunals,
matter
in
this
which we
in
our
present
Relation of
Law.
There
Disciplinary
The
attitude
may
special disciplinary
circle.
circle,
is regarded, as it w^ere, as merged in the disciplinary
where belonging to the disciplinary circle is considered of overshadowing importance. Such was the case in the law of the INIiddle
Ages (the Canon law) in respect to crimes of the clergy, and such
is the case to-day in the law of the German Empire,'^ and Continental Europe generally, in respect to offenses of military persons.
It is possible to proceed from the opposite side, and to regard
the breach of the general criminal law and the breach of the disciplinary law comprehended within the same act, as matters to be
quite separately considered. The common law adopts this attitude in respect to ofTenses of public servants, and (of late years,
since the abolition of the so-called " academic " jurisdiction by
the introduction of the legislation of the Empire ^) in respect to
According to
offenses of students in the German Universities.
ciplinary officials.
^"Deutsches Geriehtsverfassungsgesetz",
May
13,
Prussian Statute of
541
APPENDIX
111]
or indeed no i)unishment at
all,
'
am
culties
unable to perceive how the rule "Ne bis in idem" causes diffiwhich can be obviated only in the most formal manner, as Laband
542
APPENDIX
[111
is
which could render the accused amenable to even the disif for example, the judge found it not proven
ciplinary penalty
that the accused took part in the act, e.g. the })ra\vl, with which
facts
he
is
In such a case
charged.
infliction
of
disciplinary
it is
penalties
is
whom
the
the acquittal.
officials
may
not ad-
Effect of Conviction
tion
convic-
make
If
the
and an accused
And why
is
should a
man who
is
man
On
is
the
very
punishment,
it
will
stitute
ments
a breach of a duty of public service, without regard for the eleof fact fixed by statute as constituting the violation, misdemeanor
or crime."
" In this respect, cf. also Leyser, "Spec." 650, n. 50.
'2
For the reasons
Cf. e.g. 7 of the Prussian statute just n-ferred to.
given in the text, if iijiulicidl investigation is l>cgun, its results will often
be awaited. Cf. 4 Abs. 2 of the quoted Prussian Statute
78 Abs. 2
;
543
APPENDIX
1111
missjil
should
piil)lic service.)
Law and
Logically this
Disciplinary
Law
in
the clillerence between the (liscij)linary law and the public criminal
law
is
very marked.
It
is
criminal law and disciplinary law are not distinguished, and particularly that, as
is
is
However,
case
may
be) limited.
may
be given consideration
circle in
question pre-
is an
element of private law" in disciplinary \aw}^ The State can not be
bound to retain an official in its service and to give him all the
advantages of his position, when the State can not use him because
he is mentally or physically incompetent to attend to his duties,^^
or because by his actions he has lost the necessary confidence of
The
a dishonorable act.
May
544
APPENDIX
111
while related to
From
this
and
the
",
judge.
'6
As
III, pp.
to this, Ilefftcr, p.
411
178,
and
Pfeiffer,
"Prakt. Ausfhrungen",
el seq.
545
APPENDIX
111]
In conclusion,
Other Varieties of Disciplinary Punishment.
it is i)()ssil)lo tliat a kind ol" disciplinary law can be founded in
l)rivate relations through contract, e.g. if the workers in a factory
subject themselves to factory rules established
is
upon
its
The
adherents.^^
actual punishment
is
privilege of using
imprisonment as an
112.
Summary.
In
conclusion,
we
desire
to reduce
our
is
of
human
upon which
This dis-
society.
is
generally
54G
APPENDIX
only in so far as they are in harmony.
punishment
is
112
call
approbation
the method of punishment is in reality the amount
of punishment,
Confirmation of our view that punishment (" Strafe ") is
:
furnished
punishment
signifying public
It
is
is
by the
of
com-
on the one hand, the old private vengeance and composition and,
on the other, the more despotic treatment of those who were not
Originally it had no meaning
free had completely disappeared.
other than that of censure, or disapprobation.
The original meaning of the word " strafen " most certainly was
not to inflict pain or to torment.^ \Yhen criminal law abandoned
the old characteristics of private law, and its moral idea acquired
a clearer expression, the language with rare discrimination retained
the original word.
Weigand,
Cf. Grimm, "Deutsche Rechtsalterthmer " pp. 680, 681
"Deutsches Wrterbuch"; Lexer, "Mittelhochdeutsches Wrterbuch";
Schiller and Lbhen, "Mittelniederdeutsches Wrterbuch"; Schmeller,
"Bayerisches Wrterbuch", under "Strafe" and "Strafen." The
original and true meaning of "strafen" is
"To compare something with
a rule, an object for measuring, and either to approve of it, or to bring it
to its proper condition.
Thus the carpenter 'strafft' the'' wood. 'Straffen' a copy with its original.
To hold in good 'Straff.'
1
547
INDEX
de
Abduction,
Aretinus
Abegg,
164, 169.
his criminal theory, 471.
Abortion, 166, 167.
"Absolute" theories of criminal
Gambilionibus,
An-
law, 379, n. 2;
in,
Accusatory system, in
501.
Roman
in the
"Acht", 113, n. 3.
Act and author, disapprobation
of,
501.
"Act
of
("Bamberthe
gische Halsgerichsordnung"), 208,
304; relation of, to the Italian
the penalties
legal learning, 209
relation of, to the local
of, 211
law, 212; intrinsic merit of. 214;
recognition of, outside of Bamcomparison of the
berg, 214;
Carolina and, 217.
Ban, pul)lic, 63, n. 17; royal, 73.
Banishment, in France in the later
Middle Ages, 190; for life, 270.
See P]xiLE.
Banlcruptcy. See Fr.\udulent.
Bar, C. L. von, his exposition of
the theorv of moral disapproba-
German "Bambergensis",
hand",
126.
punish-
Church, 124.
Animals,
criminal
tion.
against, 154.
of,
439.
497-547.
for,
328.
law
in
the
549
of
INDEX
Bcaumanoir, Philippo
de, 14S
ish
el seq.
liclj^iuiii, 37.
Bolvisio, Jaeobus de, 206, 307.
"B(wu'lit of clorgy", 86, n. 11.
Bciitliain, Jcroinv, 435.
B(>rlich,
Roman
"norm"
his
theory
science, 500, n. 1
of
torts
later
in
on law and
on the soveron
influence of,
Empire, 52, 54
attitude
of, towards the law, 392 changed
position of, as a State religion,
and punishment, in the
393
criminal theory of Schleiermacher,
467 and punishment, regarded as
disapprobation and as retribution,
morality, 500, n. 1
eignty of the individual
influence of right
asyhim,
Christianity,
"Billonage", 282.
Biiuliiifj,
kings, 84;
influence
of
88;
temporal jurisacquisition
of
diction, 89; "poena? medicinales"
and "ptKnjB vindicativae ", 91;
defects of, 91; heresy, 92; ideal
of Divine Justic(; and tlie Alosaic
Law, 93 ultimate effect of, 94.
of
JJ(H',('aria, (-<>sare,
con-
and
Codes
Catharism, 180.
Censorship in Roman public law, 24.
Christian Church, in the Roman
Empire, 53, 54 historical relation
;
550
INDEX
Codes {continued)
Bavarian Code
other
tent, 152
intent alone does not
constitute,
limitations of
156
principk^
that
it
was
personal, 161
wlien offender is or is
not taken in the act, 161
l)eginning of ps3'chologieal analj'sis of,
;
of 1861, 352;
Commanded
peace, 142.
"Compensation" theory
Confession, 157.
"Confidence", 280.
270.
"ConsiHa",
473,
n. 8,
475.
551
INDEX
442; tho "restitution" or "compensation" theory of (Welcker,
changes in the
Hopp), 451
absolute principle of (ZachariJi,
combination of
Henke), 452;
absolute and relative purposes
Herbart's
of (Rossi, etc.), 452;
sesthetic
retribution theory of
Hegel's theory
judgment, 455
of punishment as the negation of
theological
tendwrong, 460
encies of (Stahl, Sehleiermacher,
Daub), 464; later development
and
Hegel's theory, 470
of
and von KirchHeinze, 482
and Schopenhauer,
mann, 48()
487 and Diihring, E. von Hartmann, von Liszt, 490 Binding's
theory of the effect of disobedience
and Laistner, 493
to a rule, 492
defects of the absolute and relative
the purpose of,
theories of, 498
considerations regard499-513
and
ing punishment, 515-523
morality in its narrower sense,
tort and crime, 524-533
523
;
Defamation,
1()9.
Defamatory
289.
libels,
552
INDEX
Durantis, Guilielmus, 206.
Duty
510
Hegel's discussion
"Encis",
of,
463.
165.
moraUty, 500.
Excommunication, 91, 124; as the
foundation of the criminal law
of the Church, 79.
Exile, in Greek law, 6, n. 7
in
of
Roman
lawry.
Expediency and
ment, 520.
Extenuating
ment
of imprisonment, 283.
to punish, 386, 399, 493, 499,
Duress
justice in punish-
circumstances,
265
158,
office,
283.
Old Regime and tlie modern criminal law, 315; effect of new ideas
reof reason and hunuinity, 317
forms on the eve of the Revolution, 319; the Code of 1791 and
2,
307.
the
Code of Brumaire, 320
princiPenal Code of 1810, 335
pal changes in penal law during
the 1800 s, 338.
Fraudulent banlcruptcy, 288.
Frederick II of Prussia, Statutes of,
416.
Fines, private and public, in Scandinavian law, 120, 121, 123, 126,
Feudal
the
offenses, 179.
Feuds, 97, 120.
130
250.
causes, 132
in Swiss law, 144
for offenses of procedure, in medieval French law, 176
use of, in
medieval French law, 193;
in
France, from the 1500 s to the
Revolution, 275 criminal, police,
and civil, 276.
Finland, 369.
Fiscal offenses, 176.
Forgery, 173, 287.
Forgiveness, 498, 503.
Formal crime, 65.
Fortv-mark and three-mark causes,
128, 130, 132.
France, medieval criminal law, no
theory of, in Custumals, 146
theory and practice of punisliment
;
Gabba, 454.
Gail, Andreas, 307.
Germanic conception
53
INDEX
littlo consideration given to
67
the (element of
intention in, OS
influence of the
secrecy in, 70;
the Capituearly kings in, 71
laries of the Carolingians, 72
influence of
the royal ban, 73
the punishment of slaves, 74
freedom by mass
effect of loss of
of people, 74.
Germany, criminal
medieval,
law,
crimes, 101
equality before
the law, 103
effect of changes in
the law of proof, 104
arbitrary
character of the law, 106
confusion resulting from the term
"Frieden", 107; reversion to
primitive conceptions, 108 severity of the law, 108
application of
Mosaic law, 108
cruelty of the
punishments, 109
failure of the
law, 110 incidental circumstances
having a demoralizing influence,
112; private settlement in cases
of crime, 114
the "Grace" of the
rulers, 115;
other peculiar customs, 117 influence of accidental
cific
Code
of 1909,
theories in, from
criminal
362;
Hegel to Binding,
460-494.
Geyer, his theory of criminal law,
457.
221
554
INDEX
191 rise of, as a penalty, 237 according to the Austrian Code of
Joseph 11, 2.53 in France from the
1500 s to the Revolution, 277;
in the Netherlands, 309, 310; in
"Gruet-apens
", 164.
Hlschxer,
207.
zell,
"Handfrieden
"Handless risk",
Hanoverian Code
", 99.
Hard
126.
of 1840, 344.
labor, 36.
Austria, 364.
Incantation, 183.
Incest, 286.
Individual,
subordination of, 5
relation of, to the State, the Roman conception, 17 relation of,
to the State, the Germanic conception, 18
rights of, contribution of Roman criminal law to the
;
Hartmann, E. von,
277.
Infanticide, 166.
Instigation to crime, 103, 130.
Insults, 167, 289.
Intention of crime, little consideration given to element of, in primitive Germanic law, 68
explanation of lack of consideration gi\-en
to, 69
necessary to crime, in
French medieval law, 1.52
does
not alone constitute crime, 15().
;
.Joseph II of Austria,
Code
251,
of,
311.
-Jousse, 318, n. 12.
Jurisprudence of the
Roman Empire,
21.
Jurists, influence of, in
nal law,
Roman crimi-
,50.
"Jus Papirianum
", 13, . 6.
in
olution, 285.
See
Murder, Max-
slaughter.
Honor, personal, 143.
Honor-penalties, 145.
Houses
of
ill-fame,
forbidden,
in
Laistner,
InnKiNG, VON, 515, 519.
Imprisonment, 6, ?i. 7, 35, 110,
his
theory
law, 493.
n. 19,
"Landfrieden",
555
the, 98.
of
crimiual
INDEX
Larceny.
Theft.
Rc.c
Law, attitude
Mohl, 4.54.
Monopoly, a form
Moorman,
Lex
.Julia
de adulteriis,
"Liability
man
Law",
,39.
Empire, 528.
See
Libels.
Defamatory.
Lieber, 516.
J. van der, 307.
Franz von, 362, 490.
Linden,
Liszt,
Lynch
of,
J., 307.
disapproV)ation,
Moral
theory
497-547.
of,
von Bar's
Dis-
.S'ee
approbation.
of lese majeste,
1()4.
n. 3,
237.
of
104.
352.
238.
law, 512.
Nature, Law
Magic, 279.
407.
Maiming punishments,
"Necessary defense",
273.
theory
of,
436, 441.
Negation of
n. 10.
'
'
523,
n. 9.
365.
537.
Misdemeanors,
of
556
INDEX
becomes code of the Em- Poisoning, 285.
the Criminal Law Police regulations, violations of,
358
Amendment Act of 1876, 360
533 three tj'pes of, 534 relation
changes in other paragraphs, 361.
of, to crime, 535, 537
general
Norway, 368.
characteristics of, 536.
358
pire,
committed with,
7.
537.
Profanity, 280.
Proof, law of,
combinations
acts
103.
Press, offenses of the, 289.
Press Law, the, 290.
changes
of
in,
104
Germanic and
Pandering, 286.
Pardon, executive power
of,
323.
ing, 176.
Peculation, 283.
Pubhc
Prosecutions,
Parricide, 285.
of,
in pun-
ishment, 519.
"PaterfamiUas
",
power
of, 23.
294;
119,
French law, 150.
pire, 54.
Penalties.
See Punishment.
Penance, law of, characteristics
",
81.
Penitentiaries, 237.
Perdition.
See Treason.
"Perduellio
medieval
in
of 1810, 335.
accusations, in Scandinaxnan
law,
Pu])Ii('
51.
Perjury, 288.
Persecution of the Christians, 43,
punishment, in
inal law,
97; in
.58,
61,
/(.
German
crim-
Scandinavian law,
of
126,
criminal
Punishment,
53.
Pillory, 111, 190.
in
Plato, 383.
Pledge, theory of, in criminal law,
489.
"Pledged peace", 99, 142.
Roman
criminal law
statutes of later Republic,
28; e.\ile, 29, 31, 32; death,
:
in
imprisonment, 35;
34;
hard labor, 36; other methods,
37; infamy and confiscation of
of attempt
property, 24, 37
28,
557
INDEX
of acccssorios to
at crime, 41
of negligence, 41
crime, 41
in imperial criminal law, as
affected by class privilege, 45
as affected by administration
;
of justice
by
state officials, 47
evidencing
perors, 55.
In
Confederation, 357.
In Scandinavian criminal law
public and priChurch, 124
vate, 126, 132, 134, 137
in the
1500 s, 293.
In French criminal law
early confusion in notions of,
146
attempts at classification
of forms of, 148
decrease in
rigor of idea of right of, 150,
188 bases of right of, in Middle
arbitrariness of,
Ages, 151
usurers,
in
for
186
151
later Middle Ages, 187-197;
discretionary,
various
264
forms of, from the 1500 s to the
Revolution, 268
of various
crimes, 278
according to the
Declaration of the Rights of
Man, 320
according to the
Code of 1791, 321 according
to the Code of Brumaire, 322
according to the Penal Code of
mitigation of, since
1810, 337
1810, 339; for the reeidiAast,
;
341
repressive,
seclusionary,
558
and
prmitentiary, 341,
342;
individualization of, 342.
In Swiss criminal law, 144.
Various objects of, 381, 488 considered as benefit to the wrongdoer, 383, 387, 390, 468, 469,
deterrence as object of,
472
40.5-523,
Detern.
9 (See
rence) reform as object of, 391,
407, 410, 411, 441, 442, 46.5, 481,
retribution as object
509, 514
of, 398-523, ri. 9 [See Retri;
bution)
justification
and
obli-
as a negation
386
the Sophists'
of wrong, 460
Plato, 383theory of, 381
386 Aristotle, 386 the Stoics,
388 the Epicureans, 388 the
philosophers,
Roman
389
Thomas Aquinas, 393
Grotius, 398; Hobbes, 402; SpiPufendorf 406
noza, 404
Leibnitz,
Locke, 409;
409;
Cocceji, 410; Thomasius, 411
Rousseau,
Wolff, 411
412
Beccaria's inBeccaria, 414
of,
415
Filanviews
fluence on
Globig and Huster,
gieri, 416
Wieland,
Servin, 418;
417;
420; Kant, 422; Pichte, 425;
Feuerbach,
Grolmann, 427
Bentham,
Thibaut, 433
429
435 Romagnosi, 437 Oersted,
438; Bauer, 439; Schulze, 441
Groos,
443;
Steltzer,
441;
Ahrens, 445
Krause, 444
according to the
Rder, 446
compensation theory (Welcker),
Zachari,
Hepp, 451
447
combinaHenke, 452
451
gation
in,
of
of
469
tendencies
theological
Hegel's
;
INDEX
society rather than of the State,
510 the idea of disapprobation
;
degree
of,
deserve, 518
what acts
the principle of
517
;
theory
of
the
freedom of
221
religious faith not achieved by,
222 unfortunate results of, 223
to,
Switzerland, 297.
Reformation of prisoner through
punishment, methods of obtaintheory of, 381; puring, 340;
in Pufenpose of Deity, 391
in Leibnitz's
dorf's theory, 407
in Thomasius' thetheory, 410
in Steltzer's theory,
ory, 411
theory of, founded upon
441
of, in
Stahl's
in
determinism, 442
in Berner's theory,
theory, 465
481; in Kitz's theory, 481; not
the primary element in punishment, 509 an impossible theorv,
;
514.
"Relative"
JMaistre's
325-332.
period
de
in
theory, 466, n. 10
in Abegg's
theory, 471
in Kstlin's theorjs
474 in Merkel's theory, 476 in
Berner's theory, 480 disapproval
is not, 504
in von Bar's theorj%
509 in Meyer's theory, 513.
Revolution, the French, French
reforms of the period, 315-324;
German reforms of the period,
Quistorp, 308.
Carolina
464
theories
of
criminal
combination of
law, 379, n. 2
absolute and relative purposes
in
punishment, 452, 478
of
in
Abegg's
theory,
472
Ileinze's theory, 486; and absolute principle, controversy bedefects of, 498.
tween, 492
Religious tolerance, 221, 244.
Remission of punishment, 196, 228,
232.
Reprimand, 506, n. 9.
;
559
imprisonment, 35
36; other methods
the range
ment, 37
labor,
puni.shlese
of, 39
as affected by class
majeste, 41
as affected by
privilege,
45
administration of justice by State
disregard for the
officials,
47
reversion in the
criminal in, 48
;
liard
of
Empire
to
INDEX
by
rooeption
the
Si)in()za, 404.
;i()2.
Roman
of
tion
Sacrilege, 279.
Saxony, Criminal Code of the King-
dom
of,
345.
91.
370.
13;
108
in Switzerland, 145
in reign
in
Frederick the Great, 251
rejected by
Scandinavia, 296
Pufendorf, 407 accepted by Cocceji, 410
E. von Hartmann's
in beginning of
view of, 491
criminal law, 505.
Temporal treason, crimes of, 281.
Theft, in Roman law, 14, 15, 40;
death penalty
and secrecy, 70
for, in Germanic law, 108. x. 8;
of
Germany,
226
emancipation
560
from,
in'
INDEX
tive Germanic criminal law, 57
limitations of, 120, 122
in pro",
\incial Codes of Scandivania, 125
public and private, in medie\-al
theory of, 429.
French law, 150; private, prohibThiiringian Code, 346.
ited in Scandinavia, 291
Tort and crime, 524
Hegel's disGrotius'
tinction, 525
Hlschnor's disas an expression
theory of, 399
tinction, 526
Merkel's distincof disapproljation, 509.
" Verfestung", 112.
tion, 528
relation of, 528.
Torture, 117, 157, 180, 269, n. 3.
Voet, Joh., 307.
Town Codes, 140.
Vogt, J. H., 368.
Tradition, consideration of, in pun- Voltaire, 311.
ishing, 518, 520.
Voorda, Professor B., 307.
"Transactio", 234, n. 3.
Vouglans, Aluyart de, 318, n. 12.
Transgressions, 330
according to
the Prussian Code of 1851, 350
Welcker, 447.
minor, 526.
Whipping, form of punishment,
Treason, in medieval German law,
190.
101 in medieval French law, 161, Wieck, Von, 455.
163
crimes of temporal, 281
Wieland, E. C, 419.
high, 282.
See Lese Majeste, Wier, Johannes, 310.
Perduellio.
Witchcraft, 45, 183, 279 trials, 226
Trendelenburg, 470.
gradual suppression of, in the
Twelve Tables, law of, 11, 13, 14,
1700 s, 243 in Scandinavia, 294,
15, n. 16, 22.
295, 296 in the Xetheriands, 309.
Wolff, Christopher, 411.
Unchastity, 228, 244.
Workhouses, 237.
Unification of law, 353, 374.
"Wormser Reformation", the, 207.
Universities, the, 246.
Wounds, 133, 167.
Usury, 184, 288.
Wrong, Hegel's discussion of, 463
Kstlin's discussion of, 474
deVagrancy, 175.
fect of Hegel's theory of, 498.
Vengeance, source of criminal law, Wiirtemberg Criminal Code, 345.
servant of higher ideal, 6
5, 479
blood, 6, n. 6, 120
early suppres- ZachariX, C. S., 451.
sion of, in Roman criminal law, Zurck, E. van, 307.
11-16; prominence of, in primi- Zypaeus, F., 307.
561
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