LAW
The general plan of this little book being to start from the influences
that determine man's destiny in a physical, external, necessary sort
of way, and to work up gradually to the spiritual, internal, voluntary
factors in human nature--that strange "compound of clay and flame"--it
seems advisable to consider law before religion, and religion before
morality, whether in its collective or individual aspect, for the
following reason. There is more sheer constraint to be discerned in
law than in religion, whilst religion, in the historical sense which
identifies it with organized cult, is more coercive in its mode of
regulating life than the moral reason, which compels by force of
persuasion.
To one who lives under civilized conditions the phrase "the strong
arm of the law" inevitably suggests the policeman. Apart from policemen,
magistrates, and the soldiers who in the last resort must be called
out to enforce the decrees of the community, it might appear that law
could not exist. And certainly it is hard to admit that what is known
as mob-law is any law at all. For historical purposes, however, we
must be prepared to use the expression "law" rather widely. We must
be ready to say that there is law wherever there is punishment on the
part of a human society, whether acting in the mass, or through its
representatives. Punishment means the infliction of pain on one who
is judged to have broken a social rule. Conversely, then, a law is
any social rule to the infringement of which punishment is by usage
attached. So long as it is recognized that a man breaks a social rule
at the risk of pain, and that it is the business of everybody, or of
somebody armed with the common authority, to make that risk a reality
for the offender, there is law within the meaning of the term as it
exists for anthropology.
Punishment, however, is by its very nature an exceptional measure.
It is only because the majority are content to follow a social rule,
that law and punishment are possible at all. If, again, every one
habitually obeys the social rules, law ceases to exist, because it
is unnecessary. Now, one reason why it is hard to find any law in
primitive society is because, in a general way of speaking, no one
dreams of breaking the social rules.
Custom is king, nay tyrant, in primitive society. When Captain Cook
asked the chiefs of Tahiti why they ate apart and alone, they simply
replied, "Because it is right." And so it always is with the ruder
peoples. "'Tis the custom, and there's an end on't" is their notion
of a sufficient reason in politics and ethics alike. Now that way lies
a rigid conservatism. In the chapter on morality we shall try to
discover its inner springs, its psychological conditions. For the
present, we may be content to regard custom from the outside, as the
social habit of conserving all traditional practices for their own
sake and regardless of consequences. Of course, changes are bound to
occur, and do occur. But they are not supposed to occur. In theory,
the social rules of primitive society are like "the law of the Medes
and Persians which altereth not."
This absolute respect for custom has its good and its bad sides. On
the one hand, it supplies the element of discipline; without which
any society is bound soon to fall to pieces. We are apt to think of
the savage as a freakish creature, all moods--at one moment a friend,
at the next moment a fiend. So he might be, if it were not for the
social drill imposed by his customs. So he is, if you destroy his
customs, and expect him nevertheless to behave as an educated and
reasonable being. Given, then, a primitive society in a healthy and
uncontaminated condition, its members will invariably be found to be
on the average more law-abiding, as judged from the standpoint of their
own law, than is the case any civilized state.
But now we come to the bad side of custom. Its conserving influence
extends to all traditional practices, however unreasonable or
perverted. In that amber any fly is apt to be enclosed. Hence the
whimsicalities of savage custom. In _Primitive Culture_ Dr. Tylor
tells a good story about the Dyaks of Borneo. The white man's way of
chopping down a tree by notching out V-shaped cuts was not according
to Dyak custom. Hence, any Dyak caught imitating the European fashion
was punished by a fine. And yet so well aware were they that this method
was an improvement on their own that, when they could trust each other
not to tell, they would surreptitiously use it. These same Dyaks, it
may be added, are, according to Mr. A.R. Wallace, the best of observers,
"among the most pleasing of savages." They are good-natured, mild,
and by no means bloodthirsty in the ordinary relations of life. Yet
they are well known to be addicted to the horrid practice of
head-hunting. "It was a custom," Mr. Wallace explains, "and as a custom
was observed, but it did not imply any extraordinary barbarism or moral
delinquency."
The drawback, then, to a reign of pure custom is this: Meaningless
injunctions abound, since the value of a traditional practice does
not depend on its consequences, but simply on the fact that it is the
practice; and this element of irrationality is enough to perplex, till
it utterly confounds, the mind capable of rising above routine and
reflecting on the true aims and ends of the social life. How to break
through "the cake of custom," as Bagehot has called it, is the hardest
lesson that humanity has ever had to learn. Customs have often been
broken up by the clashing of different societies; but in that case
they merely crystallize again into new shapes. But to break through
custom by the sheer force of reflection, and so to make rational
progress possible, was the intellectual feat of one people, the ancient
Greeks; and it is at least highly doubtful if, without their leadership,
a progressive civilization would have existed to-day.
It may be added in parenthesis that customs may linger on indefinitely,
after losing, through one cause or another, their place amongst the
vital interests of the community. They are, or at any rate seem,
harmless; their function is spent. Hence, whilst perhaps the humbler
folk still take them more or less seriously, the leaders of society
are not at pains to suppress them. Nor would they always find it easy
to do so. Something of the primeval man lurks in us all; and these
"survivals," as they are termed by the anthropologist, may often in
large part correspond to impulses that are by no means dead in us,
but rather sleep; and are hence liable to be reawakened, if the
environment happens to supply the appropriate stimulus. Witness the
fact that survivals, especially when the whirligig of social change
brings the uneducated temporarily to the fore, have a way of blossoming
forth into revivals; and the state may in consequence have to undergo
something equivalent to an operation for appendicitis. The study of
so-called survivals, therefore, is a most important branch of
anthropology, which cannot unfortunately in this hasty sketch be given
its due. It would seem to coincide with the central interest of what
is known as folk-lore. Folk-lore, however, tends to broaden out till
it becomes almost indistinguishable from general anthropology. There
are at least two reasons for this. Firstly, the survivals of custom
amongst advanced nations, such as the ancient Greeks or the modern
British, are to be interpreted mainly by comparison with the similar
institutions still flourishing amongst ruder peoples. Secondly, all
these ruder peoples themselves, without exception, have their
survivals too. Their customs fall as it were into two layers. On top
is the live part of the fire. Underneath are smouldering ashes, which,
though dying out on the whole, are yet liable here and there to rekindle
into flame.
So much for custom as something on the face of it distinct from law,
inasmuch as it seems to dispense with punishment. It remains to note,
however, that brute force lurks behind custom, in the form of what
Bagehot has called "the persecuting tendency." Just a boy at school
who happens to offend against the unwritten code has his life made
a burden by the rest of his mates, so in the primitive community the
fear of a rough handling causes "I must not" to wait upon "I dare not."
One has only to read Mr. Andrew Lang's instructive story of the fate
of "Why Why, the first Radical," to realize how amongst savages--and
is it so very different amongst ourselves?--it pays much better to
be respectable than to play the moral hero.
* * * * *
Let us pass on to examine the beginnings of punitive law. After all,
even under the sway of custom, casual outbreaks are liable to occur.
Some one's passions will prove too much for him, and there will be
an accident. What happens then in the primitive society? Let us first
consider one of the very unorganized communities at the bottom of the
evolutionary scale; as, for example, the little Negritos of the Andaman
Islands. Their justice, explains Mr. Man, in his excellent account
of these people, is administered by the simple method of allowing the
aggrieved party to take the law into his own hands. This he usually
does by flinging a burning faggot at the offender, or by discharging
an arrow at him, though more frequently near him. Meanwhile all others
who may be present are apt to beat a speedy retreat, carrying off as
much of their property as their haste will allow, and remaining hid
in the jungle until sufficient time has elapsed for the quarrel to
have blown over. Sometimes, however, friends interpose, and seek to
deprive the disputants of their weapons. Should, however, one of them
kill the other, nothing is necessarily said or done to him by the rest.
Yet conscience makes cowards of us all; so that the murderer, from
prudential motives, will not uncommonly absent himself until he judges
that the indignation of the victim's friends has sufficiently abated.
Now here we seem to find want of social structure and want of law going
together as cause and effect. The "friends" of whom we hear need to
be organized into a police force. If we now turn to totemic society,
with its elaborate clan-system, it is quite another story.
Blood-revenge ranks amongst the foremost of the clansman's social
obligations. Over the whole world it stands out by itself as the type
of all that law means for the savage. Within the clan, indeed, the
maxim of blood for blood does not hold; though there may be another
kind of punitive law put into force by the totemites against an erring
brother, as, for instance, if they slay one of their number for
disregarding the exogamic rule and consorting with a woman who is
all-one-flesh with him. But, between clans of the same tribe, the
system of blood-revenge requires strict reprisals, according to the
principle that some one on the other side, though not necessarily the
actual murderer, must die the death. This is known as the principle
of collective responsibility; and one of the most interesting problems
relating to the evolution of early law is to work out how individual
responsibility gradually develops out of collective, until at length,
even as each man does, so likewise he suffers.
The collective method of settling one's grievances is natural enough,
when men are united into groups bound together by the closest of
sentimental ties, and on the other hand there is no central and
impartial authority to arbitrate between the parties. One of our crew
has been killed by one of your crew. So a stand-up fight takes place.
Of course we should like to get at the right man if we could; but,
failing that, we are out to kill some one in return, just to teach
your crew a lesson. Comparatively early in the day, however, it strikes
the savage mind that there are degrees of responsibility. For instance,
some one has to call the avenging party together, and to lead it. He
will tend to be a real blood-relation, son, father, or brother. Thus
he stands out as champion, whilst the rest are in the position of mere
seconds. Correspondingly, the other side will tend to thrust forward
the actual offender into the office of counter-champion. There is
direct evidence to show that, amongst Australians, Eskimo, and so on,
whole groups at one time met in battle, but later on were represented
by chosen individuals, in the persons of those who were principals
in the affair. Thus we arrive at the duel. The transition is seen in
such a custom as that of the Port Lincoln black-fellows. The brother
of the murdered man must engage the murderer; but any one on either
side who might care to join in the fray was at liberty to do so. Hence
it is but a step to the formal duel, as found, for instance, amongst
the Apaches of North America.
Now the legal duel is an advance on the collective bear-fight, if only
because it brings home to the individual perpetrator of the crime that
he will have to answer for it. Cranz, the great authority on the Eskimo
of Greenland, naively remarks that a Greenlander dare not murder or
otherwise wrong another, since it might possibly cost him the life
of his best friend. Did the Greenlander know that it would probably
cost him his own life, his sense of responsibility, we may surmise,
might be somewhat quickened. On the other hand, duelling is not a
satisfactory way of redressing the balance, since it merely gives the
powerful bully an opportunity of adding a second murder to the first.
Hence the ordeal marks an advance in legal evolution. A good many
Australian peoples, for example, have reached the stage of requiring
the murderer to submit to a shower of spears or boomerangs at the hands
of the aggrieved group, on the mutual understanding that the
blood-revenge ends here.
Luckily, however, for the murderer, it often takes time to bring him
to book; and angry passions are apt in the meanwhile to subside. The
ruder savages are not so bloodthirsty as we are apt to imagine. War
has evolved like everything else; and with it has evolved the man who
likes fighting for its own sake. So, in place of a life for a life,
compensation--"pacation," as it is technically termed--comes to be
recognized as a reasonable _quid pro quo_. Constantly we find custom
at the half-way stage. If the murderer is caught soon, he is killed;
but if he can stave off the day of justice, he escapes with a fine.
When private property has developed, the system of blood-fines becomes
most elaborate. Amongst the Iroquois the manslayer must redeem himself
from death by means of no less than sixty presents to the injured kin;
one to draw the axe out of the wound, a second to wipe the blood away,
a third to restore peace to the land, and so forth. According to the
collective principle, the clansmen on one side share the price of
atonement, and on the other side must tax themselves in order to make
it up. Shares are on a scale proportionate to degrees of relationship.
Or, again, further nice calculations are required, if it is sought
to adjust the gross amount of the payment to the degree of guilt. Hence
it is not surprising that, when a more or less barbarous people, such
as the Anglo-Saxons, came to require a written law, it should be almost
entirely taken up by regulations about blood-fines, that had become
too complicated for the people any longer to keep in their heads.
So far we have been considering the law of blood-revenge as purely
an affair between the clans concerned; the rest of the tribal public
keeping aloof, very much in the style of the Andamanese bystanders
who retire into the jungle when there is a prospect of a row. But with
the development of a central authority, whether in the shape of the
rule of many or of one, the public control of the blood-feud begins
to assert itself; for the good reason that endless vendetta is a
dissolving force, which the larger and more stable type of society
cannot afford to tolerate if it is to survive. The following are a
few instances illustrative of the transition from private to public
jurisdiction. In North America, Africa, and elsewhere, we find the
chief or chiefs pronouncing sentence, but the clan or family left to
carry it out as best they can. Again, the kin may be entrusted with
the function of punishment, but obliged to carry it out in the way
prescribed by the authorities; as, for instance, in Abyssinia, where
the nearest relation executes the manslayer in the presence of the
king, using exactly the same kind of weapon as that with which the
murder was committed. Or the right of the kin to punish dwindles to
a mere form. Thus in Afghanistan the elders make a show of handing
over the criminal to his accusers, who must, however, comply strictly
with the wishes of the assembly; whilst in Samoa the offender was bound
and deposited before the family "as if to signify that he lay at their
mercy," and the chief saw to the rest. Finally, the state, in the person
of its executive officers, both convicts and executes.
When the state is represented by a single ruler, crime tends to become
an offence against "the king's peace"--or, in the language of Roman
law, against his "majesty." Henceforward, the easy-going system of
getting off with a fine is at an end, and murder is punished with the
utmost sternness. In such a state as Dahomey, in the old days of
independence, there may have been a good deal of barbarity displayed
in the administration of justice, but at any rate human life was no
less effectively protected by the law than it was, say, in mediaeval
Europe.
* * * * *
The evolution of the punishment of murder affords the typical instance
of the development of a legal sanction in primitive society. Other
forms, however, of the forcible repression of wrong-doing deserve a
more or less passing notice.
Adultery is, even amongst the ruder peoples, a transgression that is
reckoned only a degree less grave than manslaughter; especially as
manslaughter is a usual consequence of it, quarrels about women
constituting one of the chief sources of trouble in the savage world.
With a single interesting exception, the stages in the development
of the law against adultery are exactly the same as in the case already
examined. Whole kins fight about it. Then duelling is substituted.
Then duelling gives way to the ordeal. Then, after the penalty has
long wavered between death and a fine, fines become the rule, so long
as the kins are allowed to settle the matter. If, however, the community
comes to take cognizance of the offence, severer measures ensue. The
one noticeable difference in the two developments is the following.
Whereas murder is an offence against the chief's "majesty," and as
such a criminal offence, adultery, like theft, with which primitive
law is wont to associate it as an offence against property, tends to
remain a purely civil affair. Kafir law, for example, according to
Maclean, draws this distinction very clearly.
It remains to add as regards adultery that, so far, we have only been
considering the punishment that falls on the guilty man. The guilty
woman's fate is a matter relating to a distinct department of primitive
law. Family jurisdiction, as we find it, for instance, in an advanced
community such as ancient Rome, meant the right of the _pater familias_,
the head of the house, to subject his _familia_, or household, which
included his wife, his children (up to a certain age), and his slaves,
to such domestic discipline as he saw fit. Such family jurisdiction
was more or less completely independent of state jurisdiction; and,
indeed, has remained so in Europe until comparatively recent times.
What light, then, does the study of primitive society throw on the
first beginnings of family law as administered by the house-father?
To answer this question at all adequately would involve the writing
of many pages on the evolution of the family. For our present purpose,
all turns on the distinction between the matripotestal and the
patripotestal family. If the man and the woman were left to fight it
out alone, the latter, despite the "shrewish sanction" that she
possesses in her tongue, must inevitably bow to the principle that
might is right. But, as long as marriage is matrilocal--that is to
say, allows the wife to remain at home amongst male defenders of her
own clan--she can safely lord it over her stranger husband; and there
can scarcely be adultery on her part, since she can always obtain
divorce by simply saying, Go! Things grow more complicated when the
wife lives amongst her husband's people, and, nevertheless, the system
of counting descent favours her side of the family and not his. Does
the mere fact that descent is matrilineal tend to imply on the whole
that the mother's kin take a more active interest in her, and are more
effective in protecting her from hurt, whether undeserved or deserved?
It is no easy problem to settle. Dr. Steinmetz, however, in his
important work on _The Evolution of Punishment_ (in German), seeks
to show that under mother-right, in all its forms taken together, the
adulteress is more likely to escape with a light penalty, or with none
at all, than under father-right. Whatever be the value of the
statistical method that he employs, at any rate it makes out the death
penalty to be inflicted in only a third of his cases under the former
system, but in about half under the latter.
* * * * *
We must be content with a mere glance at other types of wrong-doing
which, whilst sooner or later recognized by the law of the community,
affect its members in their individual capacity. Theft and slander
are cases in point.
Amongst the ruder savages there cannot be much stealing, because there
is next to nothing to steal. Nevertheless, groups are apt to quarrel
over hunting and fishing claims; whilst the division of the spoils
of the chase may give rise to disputes, which call for the interposition
of leading men. We even occasionally find amongst Australians the
formal duel employed to decide cases of the violation of
property-rights. Not, however, until the arts of life have advanced,
and wealth has created the two classes of "haves" and "have-nots,"
does theft become an offence of the first magnitude, which the central
authority punishes with corresponding severity.
As regards slander, though it might seem a slight matter, it must be
remembered that the savage cannot stand up for a moment again an adverse
public opinion; so that to rob him of his good name is to take away
all that makes life worth living. To shout out, Long-nose! Sunken-eyes!
or Skin-and-bone! usually leads to a fight in Andamanese circles, as
Mr. Man informs us. Nor, again, is it conducive to peace in Australian
society to sing as follows about the staying-powers of a
fellow-tribesman temporarily overtaken by European liquor: "Spirit
like emu--as a whirlwind--pursues--lays violent hold on
travelling--uncle of mine (this being particularly derisive)--tired
out with fatigue--throws himself down helpless." Amongst more advanced
peoples, therefore, slander and abuse are sternly checked. They
constitute a ground for a civil action in Kafir law; whilst we even
hear of an African tribe, the Ba-Ngindo, who rejoice in the special
institution of a peace-maker, whose business is to compose troubles
arising from this vexatious source.
* * * * *
Let us now turn to another class of offences, such as, from the first,
are regarded as so prejudicial to the public interest that the
community as a whole must forcibly put them down.
Cases of what may be termed military discipline fall under this head.
Even when the functions of the commander are undeveloped, and war is
still "an affair of armed mobs," shirking--a form of crime which, to
do justice to primitive society, is rare--is promptly and effectively
resented by the host. Amongst American tribes the coward's arms are
taken away from him; he is made to eat with the dogs; or perhaps a
shower of arrows causes him to "run the gauntlet." The traitor, on
the other hand, is inevitably slain without mercy--tied to a tree and
shot, or, it may be, literally hacked to pieces. Naturally, with the
evolution of war, these spontaneous outbursts of wrath and disgust
give way to a more formal system of penalties. To trace out this
development fully, however, would entail a lengthy disquisition on
the growth of kingship in one of its most important aspects. If constant
fighting turns the tribe into something like a standing army, the
position of war-lord, as, for instance, amongst the Zulus, is bound
to become both permanent and of all-embracing authority. There is,
however, another side to the history of kingship, as the following
considerations will help to make clear.
Public safety is construed by the ruder type of man not so much in
terms of freedom from physical danger--unless such a danger, the onset
of another tribe, for instance, is actually imminent--as in terms of
freedom from spiritual, or mystic, danger. The fear of ill-luck, in
other words, is the bogy that haunts him night and day. Hence his life
is enmeshed, as Dr. Frazer puts it, in a network of taboos. A taboo
is anything that one must not do lest ill-luck befall. And ill-luck
is catching, like an infectious disease. If my next-door neighbour
breaks a taboo, and brings down a visitation on himself, depend upon
it some of its unpleasant consequences will be passed on to me and
mine. Hence, if some one has committed an act that is not merely a
crime but a sin, it is every one's concern to wipe out that sin; which
is usually done by wiping out the sinner. Mobbish feeling always
inclines to violence. In the mob, as a French psychologist has said,
ideas neutralize each other, but emotions aggrandize each other. Now
war-feeling is a mobbish experience that, I daresay, some of my readers
have tasted; and we have seen how it leads the unorganized levy of
a savage tribe to make short work of the coward and traitor. But
war-fever is a mild variety of mobbish experience as compared with
panic in any form, and with superstitious panic most of all. Being
attacked in the dark, as it were, causes the strongest to lose their
heads.
Hence it is not hard to understand how it comes about that the violator
of a taboo is the central object of communal vengeance in primitive
society. The most striking instance of such a taboo-breaker is the
man or woman who disregards the prohibition against marriage within
the kin--in other words, violates the law of exogamy. To be thus guilty
of incest is to incite in the community at large a horror which, venting
itself in what Bagehot calls a "wild spasm of wild justice," involves
certain death for the offender. To interfere with a grave, to pry into
forbidden mysteries, to eat forbidden meats, and so on, are further
examples of transgressions liable to be thus punished.
Falling under the same general category of sin, though distinct from
the violation of taboo, is witchcraft. This consists in trafficking,
or at any rate in being supposed to traffic, with powers of evil for
sinister and anti-social ends. We have only to remember how England,
in the seventeenth century, could work itself up into a frenzy on this
account to realize how, in an African society even of the better sort,
the "smelling-out" and destroying of a witch may easily become a
general panacea for quieting the public nerves.
When crimes and sins, affairs of state and affairs of church thus
overlap and commingle in primitive jurisprudence, it is no wonder if
the functions of those who administer the law should tend to display
a similar fusion of aspects. The chief, or king, has a "divine right,"
and is himself in one or another sense divine, even whilst he takes
the lead in regard to all such matters as are primarily secular. The
earliest written codes, such as the Mosaic Books of the Law, with their
strange medley of injunctions concerning things profane and sacred,
accurately reflect the politico-religious character of all primitive
authority.
Indeed, it is only by an effort of abstraction that the present chapter
has been confined to the subject of law, as distinguished from the
subject of the following chapter, namely, religion. Any crime, as
notably murder, and even under certain circumstances theft, is apt
to be viewed by the ruder peoples either as a violation of taboo, or
as some closely related form of sin. Nay, within the limits of the
clan, legal punishment can scarcely be said to be in theory possible;
the sacredness of the blood-tie lending to any chastisement that may
be inflicted on an erring kinsman the purely religious complexion of
a sacrifice, an act of excommunication, a penance, or what not. Thus
almost insensibly we are led on to the subject of religion from the
study of the legal sanction; this very term "sanction," which is
derived from Roman law, pointing in the same direction, since it
originally stood for the curse which was appended in order to secure
the inviolability of a legal enactment.