Thus we find in the earliest Germanic codes many penal laws, but not much true criminal law. They were attempts, at first weak, but steadily gaining in firmness and hardening into law, to tame these wild men of the woods, by substituting an elaborate system of composition for the dearly loved right of blood revenge. But the lack of a developed criminal law is no evidence that crimes were not recognized and punished by early Germanic society. In fact, we have positive proof to the contrary, not only for the Germans, but for all other races of the great European-Aryan stock, and even for the lowest savage hordes known to man, such as the Australian Black-fellows and the African Bushman. Human society everywhere, writes Waitz, "has some common interest in opposition to the private interests of the individuals composing it." Where the individual insists upon acting in opposition to social necessity, there we have the true criminal, and society must punish him or cease to exist. How did primitive society punish the criminal? Just as private vengeance struck down the man who had harmed his fellow man, so social vengeance destroyed the malefactor who had injured the social body so seriously as to awaken in its members the passionate longing for revenge. There was no criminal law, because there was a separate action and procedure in the case of every criminal. Fundamentally instinctive, as are many acts of self-preservation, and for long largely unreasoning, like the lynch law of mobs, primitive society struck at its criminal members directly, through the folkmote, or assembly of all freemen. The people tried, condemned and punished, following the dictates of ancestral custom, with its roots deep in instinctive necessary action. Socially necessary action equals right action, because it is indispensable for social self-preservation and upward pro1 Maine, p. 369-70. Waitz, Anthropology, p. 276. ΙΟ Definition of Crime gress. The people also slowly and almost unconsciously modified ancient custom to meet new needs. No higher power-king, or priest, or noble-decreed what acts should be called criminal or compelled their punishment. Lowest savage tribes are intensely democratic and acknowledge no form of government, human or divine. Higher societies-Homeric Greeks, Romans of the days of Romulus, early Celts, Slavs and German barbarians of the first Christian century-elected their magistrates, chiefs and kings, who could also be deposed by the assembly of the freemen, and most important matters were always referred to its decision.' The people were sovereign, judge, and often executioner. They alone determined what constituted crime. They alone had power to condemn and punish criminals. Crime was and is a social product. How then shall we define crime? Crime is any act or omission to act, punished by society as a wrong against itself. This is not merely the author's own definition of crime-possibly made to harmonize with his peculiar views -it is the condensed expression of opinions held in common by the whole school of historical jurisprudence, and generally accepted by modern writers on criminal law, as the reader may prove for himself by an examination of the following passages: SIR HENRY SUMNER MAINE "Ancient Law." In the primitive history of Criminal Law, "the conception of crime, as distinguished from that of wrong or tort, and from that of sin, involves the idea of injury to the state or collective community." The commonwealth itself interposed directly and by isolated acts to avenge itself on the author of the evil which it had suffered." (p. 385.) 1 Ihering, Vorgeschichte der Indoeuropäer, pp. 396–397. "The earliest conception of a crimen or crime is an act involving such high issues that the state, instead of leaving its cognizance to the civil tribunal, or the religious court, directed a special law or privilegium against the perpetrator." "The tribunal dispensing justice was the sovereign state itself." There was not "at this epoch any Law of Crimes, any Criminal Jurisprudence.' The procedure was identical with the forms of passing an ordinary statute." (p. 372-3.) "Nothing can be simpler than the considerations which ultimately led ancient societies to the formation of a true criminal jurisprudence. The State conceived itself to be wronged, and the popular assembly struck straight at the offender with the same movement which accompanied its legislative action." (p. 381.) Later, "when a regular criminal law with courts and officers had come into being, the old procedure remained practicable. The people of Rome always retained the power of punishing by a special law offences against its majesty." So "the Athenian Bill of Pains and Penalties, or Elcayyeλía, survived the establishment of regular tribunals." (p. 373.) "The Heliæa of classical times was simply the popular assembly convened for judicial purposes, and the famous Dikasteries of Athens were only its subdivision or panels." "The history of Roman criminal jurisprudence begins with the old judicia populi, at which the kings are said to have presided. These were simply solemn trials of great offenders under legislative forms." (p. 382.) "When the freemen of the Teutonic races assembled for legislation they also claimed authority to punish offences of peculiar blackness or perpetrated by criminals of exalted station. Of this nature was the criminal jurisdiction of the Anglo-Saxon witenagemot." (p. 374.) 'This is somewhat too sweeping a statement; as German students have proved. "The Growth of Criminal Law in Ancient Communities.” "In ancient law the is no such thing as a crime." "Criminal law, as distinct from penal law, involves some element of public condemnation-such as a sentence of outlawry." "The prototype of a modern criminal trial appears in the solemn proclamation at the tribe meeting, after full inquiry, of the sentence of outlawry." (p. 14.) "Criminal law originated, not in any command at all (as the School of Analytical Jurisprudence seems to maintain), but in the custom of retaliation, at a time when there was no such thing as a sovereign body to issue a command, and no means of enforcing it, were it issued." (p. 16.)1 O. W. HOLMES, JR. "The Common Law." "The germ of criminal law is found in the desire for retali ation against the offending thing itself. . . . vengeance was the original object." (p. 34.) "The secret root from which the law draws all the juices of life. . . . i. e., considerations of what is expedient for the community concerned; . . . . . generally the unconscious result of instinctive preferences and inarticulate convictions." (p. 35-6). JOHN WILDER MAY "The Law of Crimes." "Crime is a violation or neglect of duty of so much public importance that the law, either common or statute, takes no 1 John Austin, founder of the School of Analytical Jurisprudence, gives the following definition of law in his Lectures on Jurisprudence (Edition of 1869): "Law is a rule laid down for the guidance of an intelligent being by an intelligent being having power over him." (p. 88). "Customary laws are positive laws fashioned by judicial legislation upon pre-existing customs." "These customs are merely rules set by opinions of the governed, and sanctioned or enforced morally" till they are clothed with legal sanctions by the sovereign one or number." (p. 204.) Under these ancestral customs crime was punished by society long before law began. tice of and punishes it." (p. 1.) "Not every act which is legally wrong is a crime. Private wrongs are redressed by suits inter partes. In a criminal prosecution the government itself is a party, and the government moves only when the interest of the public is involved. The basis of criminality ig therefore the effect of the act complained of upon the public." (p. 4.) "Moral obliquity is not an essential element of crime.. What, therefore, is criminal in one jurisdiction may not be criminal in another, and what may be criminal at a particular period is often found not to have been criminal at a different period in the same jurisdiction." "The general opinion of society, finding expression through common law or through special statutes, makes an act to be criminal or not according to the view which it takes of the proper means of preserving order and promoting justice." "Adultery is a crime in some jurisdictions, while in others it is left within the domain of morals." "Embezzlement, which was, till within a comparatively recent period, a mere breach of trust, cognizable only by the civil courts, has been nearly, if not quite universally, brought by statute into the category of crimes as a modified larceny." "The sale of intoxicating liquors is or is not a crime, according to the different views of public policy entertained by different communities." (pp. 4 and 5.) "It is impossible to draw an exact line between offences that are criminal and those which are merely civil wrongs." The question to be settled is, "Has the public security been endangered by the offence?" (pp. 7 and 10.)1 1 1 May classifies crimes as treasons, felonies and misdemeanors. Treason is a direct attack upon government and disturbs the foundations of society itself. It is "active disloyalty to the state." (This was probably the original form of crime.) Beccaria (Marquis) of Milan: "Observe, that by justice I understand nothing more than that bond which is necessary to keep the interest of individuals united, without which men would re |