110). But the severity of the Draconian legislation in other respects caused its overthrow. Twelve years after it, stimulated by the general disaffection of the people towards their rulers, which was intensified by that legislation, Kylon raised an insurrection. This conspiracy was the event which led to the legislation of Solon, which was of an opposite character. He was the founder of Athenian democracy. He legislated for a commercial republic, and for times of violent dissensions, political discord and private sufferings. The harsh law of debtor and creditor, combined with the recognition of slavery as a legitimate status and the right of mercantile traffic in slaves, intensified intestine quarrels, and had produced émeutes of the poorer population against the rich, who owned most of the soil. He established a new political system. To prevent the abuse by the people of their power in criminal judgments, he divided the citizens into four property classes, whose privileges and duties he defined. He popularized the judicature, which had exclusively been held by the aristocracy, so that persons should be chosen by lot out of the whole estate to sit in court as judges, and so that none was disqualified by poverty. He sought to render the ancient court of Areopagus the pillar of his form of government. Besides taking cognizance of capital crimes, he invested it with the superintendence of religion, morality, and education. To him is also attributed the establishment of a more specific Court,-Heliæa, which appears to have acted as a committee of the larger assembly of the people. This popular assembly became the high court of justice, and after its establishment the functions both of the archons and of the Areopagus became either ministerial or insignificant. Solon's laws were simple, intelligible in construction, and provided that they should be readily accessible. The legislation attributed to him, B.C. 594-560, "is distinguished by its philanthropy. He defines the duties of parents and children and families; and he enforces the practice of gratitude and other virtues by positive enactments. He pays a due regard to the infirmities of human nature, and, like a father, adopts means for the prevention of crime rather than its punishment. Indolence is a fruitful source of crime, and Solon represses it by compelling every citizen to declare his means of subsistence. As much depends upon the example of superiors, drunkenness in an archon was considered a capital offence; but, on the other hand, if any one insulted an archon he was deprived of his civil privileges and became infamous" (Carr, Hist. Greece, p. 125, and authorities there cited). He left unchanged the Draconian laws of homicide, but abrogated those of other crimes. Whereas, previous to his legislation, rape was punished at the discretion of the magistrate, it enacted a penalty of 100 drachms against the offender, and 20 against the seducer of a free woman. The procurer, in such cases of seduction, was punished capitally. But the mildness of Solon's punishments for crime generally is proved by that in the case of rape, and of slander either of the dead or living, which was a fine of three

He

drachms to the injured, and two more to the public treasury. rescinded the Draconian penalty of death in case of theft, and substituted compensation to the amount of double the value of the thing stolen, and imprisonment. Those who stood aloof in seditions were denounced as dishonoured, and were disfranchised; the object of which was probably to enlist the majority on the side of order and determine the matter by the weight of public opinion; and so imperfect did he consider the Lex talionis as a rule of punishment that he decreed that he who struck out the eye of a man having only one eye should lose both his own in return, in which he was imitated by the Locrians, whose punishments, otherwise, seem to have been regulated strictly by the law of retaliation. The political and social legislation of Solon is said to have a historical parallel in the contemporary legislation of Servius Tullius at Rome. With regard to his punishment of drunkenness as a crime a curious contrast is found in the Gentoo code; for they place it in the same category with idiocy as an excuse. They had (unlike Solon) severe punishments for slander, or "scandalous and bitter expressions," nevertheless, "if a person, from intoxication or idiotism, should speak reproachfully of any one, the magistrate shall not hold him amenable" (Gentoo Laws, chap. xv. sec. 2). Under the subsequent Grecian democracies punishments for crime were again made more

severe.

As the early British laws were in large measure derived from those of the ancient Germans, it may be well to notice them.

The ancient Germans were hardy and, as their name implies, warlike races. Some were ruled by kings, others by chiefs. The nations were divided into cantons, which again were divided into nations or hundreds, so named because they contained a hundred vills or townships. Small causes were tried before a companion or centenary chosen by the people. All causes were amenable to the jurisdiction of the prince or chief. Their courts of justice were held in the open air. They were popular assemblies of the whole community, presided over by the king or chief, and at which the priests attended. Before this council Tacitus records that criminal accusations were brought. Their punishments varied according to the nature of the crime. Traitors and deserters were gibbetedcowardice with them being regarded as the highest offence. Persons guilty of unnatural practices were suffocated in mud under a hurdle.1 Homicide, adultery, theft, and other crimes of a similar kind, were regarded as light offences, and were all compounded by fines, at first of horses and cattle, which were the principal riches of the country, and afterwards of money, which bore a fixed proportion to cattle, the common standard of value. Part of their fines went to the king or state, and part to the injured person or his family (Tacitus, de Mor. Ger. sec. 12); but the state was not recognised in their arrangements at first. They carried compositions to the greatest 1 In Scotland incestuous persons seem to have been buried alive in bogs (Pennant's Tour in Scotland, 1772, part i. p. 351, part ii. p. 421).

perfection, and extended them from the most trifling injuries to the most atrocious crimes, including high treason, by imagining and compassing the death of the king, and their tables of fines entered into minute details of offences. It would appear from the laws of the Visigoths that when compositions first came into use they were applied to slight offences only, as striking, cutting, breaking bones, etc. for which graduated fines were paid (Laws of Visigoths, 1. 6, tit. 4, sec. 1), but that retaliation was authorized in greater crimes (ibid. sec. 3). Afterwards they were extended to the greatest delinquencies, as appears from the laws of the Burgundians, Salians, Alemanni, Bavarians, Ripuarians, Saxons, Angli and Thuringi, Frisians, Lombards and Anglo-Saxons. The universal adoption of compositions as a means of punishment by these races has been accounted for by the circumstance that among people so uncultivated and warlike private resentment was apt to take place from the slightest spark, and that unless some artificial means of providing for its gratification were resorted to private quarrels would spread, and would be prosecuted with such malice and violence that large numbers and much property might be destroyed before peace was made, which actually happened in Ireland in 1327, and again in the reign of Henry VIII. From the resemblance that private punishment bears to a debt these compositions were regarded as reparation to the sufferer for his loss. "Therefore in adjusting these compositions no steady or regular distinction is made betwixt voluntary and involuntary wrongs. He who wounded or killed a man by chance was liable to a composition (Laws of the Angli and Thuringi, sec. 10, Laws of Hen. I. of England, law 70), and even where a man was killed in self-defence a full composition was due (Laws of Lombards, 1. i. tit. 9, sec. 19). Voluntary and involuntary crimes were generally put upon the same footing. But this was altered by a law among the Longobards, enacting that the latter should bear a less composition than the former (1. i. tit. 2, sec. 11). . . But such was the prevalence of resentment, that though at first no alleviation or excuse was sustained to mitigate the composition, aggravating circumstances were often laid hold of to influence the composition (Laws of the Visigoths, 1. vii. tit. 2, sec. 18). These compositions were also proportioned to the dignity of the persons injured" (Kames' Historical Law Tracts, vol. i. p. 52). Kames says: "This irregular practice of compounding for crimes was certainly a happy invention. By the temptation of money men were gradually accustomed to stifle their resentments. This was a fine preparation for transferring the power of punishment to the magistrate, which would have been impracticable without some such intermediate step; for while individuals retain their privilege of avenging injuries, the passion of resentment, fortified by universal practice, is too violent to be subdued by the force of any government" (ibid. p. 53). At first all the composition was paid to the individual sufferer, and public crimes, where individuals were not hurt, passed unnoticed. Gradually the public interest became

recognised, and the idea to prevail that by all crimes the public is injured and the peace of society is broken. This led to the introduction of the regulation that in compounding for crime a part of the fine should be paid to the State, hence the Fred or fredum. From the time of its institution the chief magistrate interposed in private quarrels, and assumed the right of avenging wrongs done to the public. We have already seen that by the old laws of Britain composition for crimes obtained. The Anglo-Saxons had the Were or wehrgelt the Scotch, the Cro, Galves and Kelchin; and the Welsh the Gwath and Galanus. The wehrgelt or ransom of ane thief throw all Scotland is threttie kye, and ane young kow, quither he be ane frie man or ane servant" (Regiam Majestatem, chap. 19). There is a detailed table of Cros or assessments for slaughter; for the shedding or price of blood; and for the price of blood and injuries, in Regiam Majestatem, chap. 36, 37, 38, 39, 40, payable in cattle and in money, and graduated according to the rank of the parties; but the authenticity of the schedule, so far as consisting of "cros" payable in cattle and adjusted to the rank of parties, has been doubted, as they are to be found written in older books, and are conform for the most part to the laws of England, as Lambard, p. 71, and to the laws of Normandy, lib. 12, cap. 26. And by the laws of King Canute, "If murder be committed in a church, a full compensation shall be paid to Jesus Christ, another full compensation to the king, and a third to the relations of the deceased" (Lambard's Collection, law 2). The same custom prevailed in Ireland under the Brehon traditions. "As, for example, in the case of murder, the Brehon, that is their judge, will compound between the murderer and the friends of the party murdered which prosecute the action, that the malefactor shall give unto the child, or the wife of him that is slain, a recompense, which they call an Eriarch. By which vile law of theirs many murders are made up and smothered" (Spenser's View of the State of Ireland).

The principle on which the compounding of crimes by a payment in kind or money was admitted by all ancient codes, and especially among the Germans and Anglo-Saxons, with whom the practice was carried farthest, was, that crimes were of the nature of debts owing by the wrongdoer to the injured person, who, as the creditor, might liquidate his claim to administer punishment by accepting a more profitable substitute. It was at first a voluntary arrangement founded on the law of contract, and could, therefore, only obtain. during the period that the right of punishment remained in private hands, and the office of the judge was mostly ministerial. Hence

it is found almost universally existing in all savage and barbarous societies. This principle is directly opposed to the modern one that punishments are administered for deterrent and corrective purposes, and which does not recognise compositions for crime, and it can have no place when the power of punishment is transferred from the individual to the State.

EMINENT SCOTTISH LAWYERS OF THE LAST CENTURY. No. II.-ROBERT CRAIGIE OF GLENDOICK.

LIKE Forbes, Lord-President Craigie will perhaps be best remembered by his connection with the Rebellion of 1745, at which date he filled the more than usually responsible post of Lord Advocate.

Robert Craigie, a younger son of Laurence Craigie of Kilgraston, and of Catherine Colville, niece of the second Lord Ochiltree, was born in 1685. He was called to the Bar in 1710, and does not seem to have made rapid progress in his profession. Indeed, he is said to have had a strong repugnance to the study of law, while, according to Tytler,1 " he had none of the exterior accomplishments that attract attention, and although an acute and able reasoner, his manner of pleading was dry, prolix, and deficient both in grace and energy." In the early years of his professional life he is said to have given private lectures to law students, who at that time had to depend very much upon instruction so given. We are all acquainted with stories (told for the encouragement of the briefless) of English lawyers destined to rise to great eminence, who at the outset of their career were filled with despair, and had resolved to abandon their profession as hopeless. This was the case with Craigie. It is told of him that after some years' experience of a briefless state, and sickened by hope deferred, he was returning at the close of a summer Session to his father's residence in Perthshire, when, in crossing at Queensferry, he had for a fellow-passenger Duncan Forbes, who must then have been a rising junior. In answer to Forbes, who had asked him how he intended to spend the vacation, Craigie mentioned a determination which he had taken of leaving the Bar. Forbes strongly advised him to abandon any such resolution, and assured him of the high opinion already formed of him by legal magnates, and of the ultimate success which would reward his perseverance. Acting upon this disinterested advice, Craigie agreed to give the Bar another trial, and ultimately attained, as we know, to the height of his profession. He was Lord Advocate from 1742 to 1746, and afterwards President.

If he had any dislike to the study of law, he seems to have entirely overcome it, for the reputation which has come down to us concerning him is that of a very learned and most industrious lawyer, and as he had no popular gifts, the extensive practice which he secured can only be accounted for by his soundness and force as an advocate. According to Tytler, he had "an understanding peculiarly turned to the unfolding of the systematic intricacies of the feudal doctrines." Judging from the Session papers written by him which we have seen, his manner of stating a case was concise and to the point.

But to us, as has been already indicated, it is the position which he held at a most important epoch in this country's history that renders Craigie of Glendoick an interesting character. Even legal

1 Life of Lord Kames.