The divine protection afforded by the sanctuary obviously offers but a temporary refuge from the avenger. The fugitive again encounters the dangers of blood-revenge as soon as he leaves the sacred precincts. Nevertheless, the time that is thus made to elapse between the act and its reprisal tempers the passion of the avenger, and affords an opportunity for negotiations in which the hostile families or clans may arrange that a ransom be paid in satisfaction of the crime that was committed. Moreover, the chief or the temple priest under whose protection the fugitive places himself, is given a direct opportunity for mediating in the capacity of an arbitrating judge, and later, as the political power gradually acquires greater strength, for taking the measures of retribution into his own hands. Revenge, thus, is changed into punishment, and custom is displaced by the norm of law, which grows up out of repeated decisions in the adjudication of similar cases.
Sojourn in a place of refuge resembles imprisonment in that it limits personal freedom. One might, therefore, be inclined to suppose that, through a further development other than that described above, the sanctuary led to a gradual moderation of punishment by introducing the practice of imprisonment. Such a supposition, however, is not borne out by the facts. At the time when the transition from the place of refuge into the prison might have taken place, the idea of reducing the death penalty to the deprivation of freedom was still remote. The value which the heroic age placed on the life of the individual was not sufficiently high to induce such a change, and the enforcement of prison penalties would, under the existing conditions, have appeared difficult and uncertain. Hence imprisonment was as yet entirely unknown as a form of punishment. Though the State had suppressed blood-revenge, it showed no less an inclination than did ancient custom to requite not only murder but even milder crimes with death. Indeed, inasmuch as the peaceful mode of settlement by ransom gradually disappeared, it might be truer to say that the relentlessness of the State was even greater than that of blood-revenge. The oldest penal codes were very strongly inclined to impose death penalties. That the famous Draconian laws of Athens became proverbial in this respect was due merely to the fact that other ancient legal codes, though not infrequently more severe, were still unknown. The law of King Hammurabi punished by death any one who stole property belonging to the court or the temple, or even to one of the king's captains; the innkeeper who charged her guests extortionate prices was thrown into the water, and the temple maiden who opened a wine-shop was burned to death. Whoever acquired possession of stolen goods, or sheltered a runaway slave, was put to death, etc. For every crime that was judged to be in any way serious, and for whose expiation a money ransom was not adequate, the law knew only the one penalty, death. The earliest law made no use of custody except in connection with civil justice. The debtor was confined in the house of the creditor. This simply enforced the pledge involved in the shaking of hands at the time when the debt was contracted—an act by which the debtor vowed to be responsible for his debt with his own person.
The confinement of the debtor was at first a matter that was left to individuals, and its original sanction was custom; later, however, it came under the supervision of the legal system of the State. This suggested the adoption of confinement in connection with other crimes, in which the death penalty appeared too severe a punishment and the exaction of money one that was too light, as well, primarily, as too dependent upon the wealth of the guilty individual. Contributory to this change, was a practice which, similarly to confinement, was also originally an arrangement between individuals, and was rooted in custom. I refer to the holding of individuals as pledges, to the hostage, who gave security with his own person for the promise of another. The hostage is of the nature of a forfeit, guaranteeing in advance the fulfilment of the obligation. For this reason the holding of hostages came to be practised not merely in the case of property contracts but in connection with every possible obligation of a private or a public nature. This development was furthered by the fact that hostages came to be held in times of war, and, as a result, were given also upon the assumption of public duties. In both cases, custody changed from a private arrangement into a public concern. This change made it possible for a judge to impose the penalty of imprisonment whenever the transgression did not appear to warrant death. Imprisonment is a penalty that admits of no fewer degrees than does a fine, and has the advantage of being independent of the irrelevant circumstance of the wealth of the one who is condemned. Moreover, the restriction of arbitrary deprivations of freedom in favour of custody on the part of the political power, makes it possible to hold a suspect whose case requires examination before a judicial verdict can be given. Thus arises the practice of confinement during investigation, an incidental form of legal procedure which is influenced by, and in turn reacts upon, the penalty of imprisonment. Such confinement makes it possible to execute the penalty of imprisonment in the case of those whom investigation shows to be guilty. But this is not its only important result. It also leads to those barbarous methods which, particularly during the early stages of this development, are connected with the infliction of the punishment itself as well as with the preceding inquisitorial activities. The public administration of justice is still affected by the passion for vengeance which comes down from the earlier period of blood-revenge. To this coarser sense of justice a merely quantitative gradation of punishment is not satisfactory; the punishment must rather be made to correspond qualitatively with the crime that has been committed. Hence the many different modes of prison punishment—more numerous even than the modes of inflicting the death penalty—and of the means of torture, which are often conceived with devilish cunning. These means of torture come to be used also in the inquisitional procedure; the endeavour to force a confession causes them to become more severe, and this in turn reacts upon the punishment itself. On the whole, the ultimate tendency, of imprisonment was greatly to restrict the death penalty and thus to contribute to more humane methods of punishment. Nevertheless, it is impossible not to recognize that this result was preceded by an increasing cruelty. The fact that the prisoner was under the control of the punitive authority for a longer period of time led to a multiplication of the means of punishment. How simple, and, one might say, how relatively humane, was blood-revenge, satisfied as it was to demand life for life, in comparison with the penal law of the Middle Ages, with its methods of forcing confession by means of the rack and of various forms of physical suffering and of death penalties!
The same is true of a further change inaugurated by the passing of blood-revenge into punishment. This change likewise led to a decided restriction of the death penalty, yet it also, no less than the forcing of confession, brought upon penal justice the stigma of systematic cruelty. The assumption of penal power on the part of the public judiciary, in conjunction with the possession of unlimited control over the person and life of the malefactor, led to the adoption of a principle which long continued to dominate penal justice. This principle was drastically expressed in the Priests' Code of the Israelites, "Eye for eye, tooth for tooth." True, this jus talionis was already foreshadowed in the custom of blood-revenge, and yet the simple form which it here possessed, 'a life for a life,' made it a principle of just retribution, and not a demand sharpened by hate and cruelty. In the case of blood-revenge, moreover, the emotions of revenge were moderated by virtue of the fact that considerations of property played a rôle. Requital was sought for the loss which the clan sustained through the death of one of its members. Hence the clan might be satisfied with a money compensation, or, occasionally, with the adoption either of a fellow-tribesman of the murderer or, indeed, even of the murderer himself. In contrast with this, even the most severe physical injuries, so long as they did not result in death, were originally always left to the retaliation of the individual. This retaliation was sought either in direct combat, or, in the heroic age proper, in a duel conducted in accordance with regulations of custom. All this is changed as soon as the State abolishes blood-revenge and assumes jurisdiction over cases of murder. In the event of personal injuries, the judge determines the sentence, particularly if the individual is unable for any reason to secure retaliation—having been rendered helpless, for example, through his injury, or being prevented by the fact of class differences. Under such circumstances it is but natural that the principle, 'a life for a life,' which has been borrowed from the institution of blood-revenge and has been applied to the punishment for murder, should be developed into a scale of physical punishment representing the more general principle 'like for like.' He who has destroyed the eye of another, must lose his own eye; whoever has disabled another's arm, must have his arm cut off, etc. Other injuries then came to be similarly punished, even those of a moral character to which the principle "eye for eye, tooth for tooth" is not directly applicable. The hand which has been implicated in an act of sacrilege, such as the commission of perjury, is to be cut off; the tongue which has slandered, must be torn out. Originally, the death penalty was employed all too freely. Hence this substitution of a physical punishment which spared the life of the offender was doubtless in the direction of moderation. But, since this substitution gave rise to cruelties that resulted in the infliction of various sorts of death penalties, preceded and accompanied by tortures, its original effect became reversed, just as in the case of imprisonment. Moreover, the two forms of punishment—imprisonment and death—and the degree to which these were carried to excess differed according to civilization and race. The jus talionis was the older principle of punishment. It is more closely bound up with man's natural impulse for retaliation, and therefore recurs even within humane civilizations, sometimes merely in suggestions but sometimes in occasional relapses which are of a more serious sort and are due to the passion for revenge. In fundamental contrast with the Mosaic law, Christianity repudiated the requital of like with like. Perhaps it was the fear of violating its own principle that led it, in its later development, to seek in the cruelties of severe prison penalties a substitute for the repressed impulse to revenge which comes to expression in coarser conceptions of justice. Nevertheless, this substitution was superior to the inflexible severity of the jus talionis in that it more effectively enabled milder customs to influence the judicial conscience.
But there is still another respect in which the recedence of the principle of retaliation gradually led to an advance beyond the legal conceptions characteristic of the heroic age. The command for strict retribution takes into consideration merely the objective injury in which a deed results; to it, it is immaterial whether a person destroys another's eye accidentally or intentionally. The same injury that he has caused must befall him. Whoever kills a man must, according to the law of Hammurabi, himself suffer death; if he kills a woman, he is to be punished by the death of his daughter. If a house collapses, the builder who constructed it must suffer death. For a successful operation, the physician receives a compensation; if the operation fails, the hand that has performed it is cut off. The same law determines both reward and punishment. Moreover, it includes within its scope even intellectual and moral transgressions. The judge who commits an error is to be dismissed from office in disgrace; the owner who neglects his field is to be deprived of it.
[10. THE DIFFERENTIATION OF LEGAL FUNCTIONS.]
The direct impetus to overcoming the defects that were inherent in penal justice as a result of its having originated in the conflicts of individuals, did not come from a clear recognition of differences in the character of the crimes themselves, but primarily from the fact of a gradual division of judicial functions. This is shown particularly by the development of Græco-Roman as well as of Germanic law. It is in the criminal court, which supersedes blood-revenge, that public authority is most directly conscious of its power over the individual. Hence the criminal court appears to be the highest of the courts, and the one that most deeply affects the natural rights of man. Its authority is vested solely in the ruler, or in a particularly sacred tribunal. This is due, not so much to the specific character of the crimes over which it has jurisdiction, as to the respect which it receives because it assumes both the ancient duty of blood-revenge and the function of exacting a requital for religious guilt. Similarly, other offences also gradually pass from the sphere of personally executed revenge or from that of the strife of individuals, and become subject to the penal authority of the State. The division of judicial authority, to which these tendencies lead, is promoted by the differentiation of public power, as a result of which the administration of justice is apportioned to various officials and magistrates, as well as are the other tasks of the State. It is for this reason that, if we consider their civilization as a whole, the constitutional States of the Occidental world were led to differentiate judicial functions much earlier than were the great despotic monarchies of the Orient. These monarchies, as the code of Hammurabi shows, possessed a highly developed husbandry and a correspondingly advanced commercial and monetary system, whereas they centralized all judicial functions in the ruler.
Thus, the State gains a twofold power, manifested, in the first place, in the very establishment of a judicial order, and, secondly, in the differentiation of the spheres of justice in which the authority of the State over the individual is exercised. This finally prepares the way for the last stage of development. The state itself becomes subject to an established legal order which determines its various functions and the duties of its members. There thus originates an officialdom, organized on fixed principles and possessing carefully defined public privileges. The people of the State, on the other hand, are divided into definite classes on the basis of the duties demanded of them as well as of the rights connected with these duties. These articulations of political society, which determine the organization of the army, the mode of taxation, and the right of participation in the government of the State, develop, as we have already seen, out of totemic tribal organization, as a result of the external conditions attendant upon the migrations and wars connected with the rise of States. But they also exhibit throughout the traces of statutes expressing the will and recording the decisions of individual rulers, though even here, of course, universal human motives are decisive. After the political powers of the State have been divided and have been delegated to particular officials and official colleges, and after political rights have been apportioned to the various classes of society, the next step consists in rendering the organization of the State secure by means of a Constitution regulating the entire political system. In the shaping of the Constitution, it cannot be denied that individual legislators or legislative assemblies played a significant rôle. Nevertheless, it must be remembered that it is solely as respects the form of State organization that the final and most comprehensive legal creation appears to be predominantly the result of the will acts of individuals. The content of the Constitution is in every respect a product of history; it is determined by conditions which, in the last analysis, depend upon the general culture of a nation and upon its relations with other peoples. These conditions, however, are so complex that, though every form of Constitution and all its modifications may be regarded as absolutely involved in the causal nexus of historical life, the endless diversity of particular conditions precludes Constitutions from being classifiable according to any universal principle. Constitutions can at most be classified on the basis of certain analogies. The most influential attempt at a genetic classification of the various historical forms of government was that of Aristotle. But his classification, based on the number of rulers (one, a few, many, all) and on the moral predicates of good and evil (monarchy and tyranny, aristocracy and oligarchy, etc.), offers a purely logical schema which corresponds but partially with facts. True, it not infrequently happens that the rule of all—that is, democracy—gives way to the evil form of individual rulership—namely, tyranny. An aristocracy, however, or even a monarchy, may likewise develop into a tyranny. What the change is to be, depends upon historical conditions. Nor are monarchy, aristocracy, or the rule of the middle class forms of government that are ever actually to be found in the purity which logical schematization demands. Even in the Homeric State there was a council of elders and an assembly of freemen—an agora—in addition to the king. Indeed, if we go back still farther and inquire concerning those more primitive peoples of nature who are merely on the point of passing from tribal organization to a political Constitution, it might perhaps be nearer the truth to assert that democracy, and not monarchy, was the form of the early State. The fact is that the organization characteristic of the State as a whole is the product of historical factors of an exceedingly variable nature, and that it never adequately fits into any logical system that is based on merely a few political features. Even less may a logical schema of this sort be regarded as representing a universal law of development.
Thus, the State is indeed the ultimate source of all the various branches of the legal system. So far as the fundamental elements of its own Constitution are concerned, however, it is really itself a product of custom, if we take this term in its broadest sense, as signifying an historically developed order of social life which has not yet come under the control of political authority. The course of development is the very opposite of that which rationalistic theories have taught, ever since the time of the Sophists, concerning the origin of the State. These theories maintain that the legal system originated in connection with the State, and that it then acquired an application to the separate departments of life. The reverse is true. It is with the determination of the rights of individuals and with the settlement of the controversies arising from these rights that the legal power of the State takes its rise. It is strengthened and extended when the custom of personal retribution comes to be superseded by penal law. Last of all comes the systematic formulation of the political Constitution itself. The latter, however, is never more than a development; it is not a creation in the proper sense of the word. Even such States as the United States of North America and the new German Empire were not created by lawgivers, but were only organized by them in respect to details. The State as such is always a product of history, and so it must ever remain. Every legal system presupposes the power of a State. Hence the latter can never itself originate in an act of legislation, but can only transform itself into a legal order after it has once arisen.