nalties, and the
trial of a _criminal_ was a proceeding wholly extraordinary, wholly
irregular, wholly independent of settled rules and fixed conditions.
Consequently, both for the reason that the tribunal dispensing justice
was the sovereign state itself and also for the reason that no
classification of the acts prescribed or forbidden was possible, 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; it was set in motion by the same persons and conducted with
precisely the same solemnities. And it is to be observed that, when a
regular criminal law with an apparatus of Courts and officers for its
administration had afterwards come into being, the old procedure, as
might be supposed from its conformity with theory, still in strictness
remained practicable; and, much as resort to such an expedient was
discredited, the people of Rome always retained the power of punishing
by a special law offences against its majesty. The classical scholar
does not require to be reminded that in exactly the same manner the
Athenian Bill of Pains and Penalties, or [Greek: eisangelia], survived
the establishment of regular tribunals. It is known too that 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.

It may be thought that the difference which I have asserted to exist
between the ancient and modern view of penal law has only a verbal
existence. The community, it may be said, besides interposing to
punish crimes legislatively, has from the earliest times interfered by
its tribunals to compel the wrong-doer to compound for his wrong, and,
if it does this, it must always have supposed that in some way it was
injured through his offence. But, however rigorous this inference may
seem to us now-a-days, it is very doubtful whether it was actually
drawn by the men of primitive antiquity. How little the notion of
injury to the community had to do with the earliest interferences of
the State _through its tribunals_, is shown by the curious
circumstances that in the original administration of justice, the
proceedings were a close imitation of the series of acts which were
likely to be gone through in private life by persons who were
disputing