Historical Law-Tracts. Henry Home, Lord Kames
in different ages. With respect to theft, the punishment among the Bavarians was increased to a ninefold restitution, calculated entirely to satisfy the person injured, before they thought of a corporal punishment.* The next step was demembration, by cutting off the hand or foot; but this only after repeated acts.† Among the Longobards, it required a third act of theft before a capital punishment could be inflicted.‡ And at last theft was to be punished with death in all cases, if clearly proved.|| By this time, it would appear, the interest of the public, with respect to punishment, had prevailed over private interest; or at least had become so weighty as to direct a punishment that should answer the purpose of terror, as well as of private resentment. There is a curious fact relating to the punishment of theft, which must not be overlooked. By
[print edition page 39]
the laws of the Twelve Tables, borrowed from Greece, theft was punished with death in a slave, and with slavery in a free man. But this law was afterwards mitigated, by converting the punishment into a pecuniary composition; subjecting the furtum manifestum to a <50> fourfold restitution, and the furtum nec manifestum, to the restitution of double. The punishment of theft, established by the law of the Twelve Tables, might suit some of the civilized states in Greece, which had acquired the notion of a public, and of the interest which a public has to punish crimes in terrorem. But the law was unsuitable to the notions of a rude people, such as the Romans were in those days, who of punishment understood no other end but the gratification of private resentment. Nor do I find in any period of the Roman history, that theft was considered as a crime against the public, to admit of a punishment in terrorem. Toward such improvement there never was a step taken but one, which was not only late, but extremely slight, viz. that a thief might be condemned to an arbitrary punishment, if the party injured insisted for it.*
I make another remark, that so long as the gratification of the prosecutor was the chief aim in punishing theft, the value of the stolen goods was constantly considered as a preferable claim;† for unless the prosecutor obtain restitution of his goods, or their value, there can be no sufficient gratification. But after the interest of the public came chiefly to be considered in punishing theft, the prosecutor’s claim of resti-<51>tution was little regarded; of which our act 26. parl. 1661, is clear evidence; witness also the law of Saxony, by which if a thief suffer death, his heir is not bound to restore the stolen goods.‡
For the same reason, a false witness is now punished capitally in Scotland, though not so of old. By the Roman law,|| and also by our common law,§ the punishment of falsehood is not capital; which is also clear from act 80. parl. 1540, and act 22. parl. 1551. Yet our supreme criminal court has, for more than a century, assumed the power of punishing this crime
[print edition page 40]
capitally, as well as that of bearing false witness, though warranted by no statute. The notions of a public, and of a public interest, are brought to perfection; and the interest of the public to be severe upon a crime so prejudicial to society, hath in these instances prevailed over even the strict rules of the criminal law(9). <52>
Upon this head an observation occurs, which will be found to hold universally. It regards a material point, that of adjusting punishments to crimes, when criminal jurisdiction is totally engrossed by the public. After this revolution in government, punishments at first are found extremely moderate; not only for the reason above given that they are directed chiefly to gratify the persons injured, but for a separate reason. Though the power of the sword adds great authority to a government, yet this effect is far from being instantaneous; and till authority be fully established, great severities are beyond the strength of a legislature. But when public authority is firmly rooted in the minds of the people, punishments more rigorous may be ventured upon, which are rendered necessary by the yet undisciplined temper of the people. At last, when a people have become altogether tame and submissive under a long and steady administration, punishments, beingless and less necessary, are commonly mild, and ought always to be so(10). <53>
[print edition page 41]
Another observation occurs, connected with the former, that to preserve a strict proportion betwixt a crime and its punishment, is not the only or chief view of a wise legislature. The purposes of human punishments are, first, to add weight to those which nature has provided, and next to enforce municipal regulations intended for the good of society. In this view, acrime, however heinous, ought to be little regarded, if it had no bad effect in society. On the other hand, a crime, however slight, ought to be severely punished, if it tend greatly to disturb the <54> peace of society. A dispute about the succession to a crown, seldom ends without a civil war, in which the party vanquished, however zealous for right and for the good of their country, must be considered as guilty of treason against their lawful sovereign; and to prevent the ruin of civil war, it becomes necessary that such treason be attended with the severest punishment; without regarding that the guilt of those who suffer arose from bad success merely. Hence, in regulating the punishment of crimes, two circumstances ought to weigh, viz. the immorality of the action, and its bad tendency; of which the latter appears to be the capital circumstance, as the peace of society is an object of much greater importance, than the peace, or even life, of a few individuals.
One great advantage, among many, of transferring to the magistrate the power of punishment, is, that revenge is kept within the strictest bounds, and confined to its proper objects. The criminal law was in perfection among the ancient Egyptians. Among them, a woman with child could not be put to death till she was delivered. And our author Diodorus Siculus* observes, That this law was received by many of the Greek states, deeming it unjust that the innocent should suffer with the guilty; and that a child, common to father and mother, should lose <55> its life for the crime of the
[print edition page 42]
mother. The power to punish must have long been the privilege of the magistrate, before a law so moderate and so impartial could take place. We find no similar instance while punishment was in the hands of individuals: Such moderation is incompatible with the partiality of man, and the inflammable nature of resentment. Nor is this the only instance of wisdom and moderation in the criminal law of the country now mentioned. Capital punishments are avoided as much as possible; and in their stead punishments are chosen, that, equally with death, restrain the delinquent from committing the crime a second time. In a word, the ancient Egyptian punishments have the following peculiar character, that they effectually answer their end, with less harshness and severity, than is found in the laws of any other nation ancient or modern. Thus those who revealed the secrets of the army to the enemy, had their tongues cut out. Those who coined false money, or contrived false weights, or forged deeds, or razed public records, were condemned to lose both hands. He who committed a rape upon a free woman, was deprived of his privy members; and a woman committing adultery, was punished with the loss of her nose, that she might not again allure men to wantonness(11). <56>
[print edition page 43]
I have one thing further to add upon public punishment. Though all civilized nations have <57>agreed to forbid private revenge, and to trust punishment, whether of public or private crimes, <58> in the hands of
[print edition page 44]
disinterested judges; yet they differ as to the persons who are allowed to pro-<59>secute before these judges. In Rome, where there was no calumniator publicus, no attorney-general, every one was permitted to prosecute crimes that have a public bad tendency, and for that reason are termed public crimes. This was a faulty institution; because such a privilege given to individuals, could not fail to be frequently made the instrument of venting private ill-will and revenge. The oath of calumny, which was the first check thought of, was far from restraining this evil. It grew to such a height, that the Romans were obliged to impose another check upon criminal prosecutors, indeed of the severest kind, which shall be given in <60> Voet’s words:*
Ne autem temere quis per accusationem in alieni capitisdiscrimenirruerit, neve impunita esset in criminalibus mentiendi atque calumniandilicentia, loco jurisjurandi calumniae adinventa fuit in crimen subscriptio, cujus vinculo cavet quisque quod crimen objecturus sit et in ejus accusatione usque ad sententiam