especially furthered by members of families performing other labour,
outside the family, in addition to their work within the family circle.
Although the fruit of all labour accomplished within the family was
shared by the members in common, the results of work done outside
became the property of the particular individual who had performed the
labour. Consequent expansion of the conception of labour led men to
one of the greatest triumphs of justice, to the idea of establishing
individual rights in ideas and in combinations of ideas, to the
recognition of intellectual or immaterial property--right of author or
inventor--one of the chief incentives to modern civilisation.
[Illustration: THE CHURCH AND MARRIAGE: A WEDDING SCENE
In very early times marriage had assumed a religious significance
and came to be regarded among the sacred as opposed to the secular
functions of life.
]
On the other hand, individual rights in transactions led to conceptions
concerning obligations and debts. Exchange, either direct or on terms
of credit, brought with it duties and liabilities for which originally
the persons and lives of the individuals concerned were held in pledge,
until custody of the body--which also included possession of the corpse
of a debtor--was succeeded by public imprisonment for debt, and finally
by the mere pledging of property, imprisonment for debt having been
abolished--a course of development through which the most varied of
races have passed.
[Sidenote: Rights of Property]
The relation of the individual to his possessions led men at first to
place movable property in graves, in order that it might be of service
to the departed owner during the life beyond; hence the universal
custom of burning on funeral pyres, not only weapons and utensils, but
animals, slaves, and even wives. In later times men were satisfied with
symbolic immolations, or possessions were released from the ban of
death and put into further use. The property of the deceased reverted
to his family, and thus the right of inheritance arose. There was no
right of inheritance during the days of communism; on the death of a
member of the family a mere general consolidation of property resulted;
with individual property arose the reversion of possessions to the
family from which they had been temporarily separated. Thus property
either reverted to the family taken as a whole, or to single heirs,
certain members of the family; hence a great variety of procedure
arose. Up to the present day inheritance by all the children, or
inheritance by one alone, exists in Eastern Asia as in Western nations.
In like manner criminal responsibility was originally collective;
the family or clan was held responsible for the actions of all its
individual members except those who were renounced and made outcasts.
Such methods of collective surety still exist among many exceedingly
developed peoples; but the system is gradually dying away, the tendency
being for the entire responsibility to rest upon the individual alone.
[Sidenote: Beginning of the Community]
The state is a development of tribal, or patriarchal, society. The
tribal group is a community of intermarried families, all claiming
descent from a common ancestor. From tribal organisation the principle
is developed that participation in the community is open only to such
individuals as belong to one or other of the families of which it is
composed; and the political body thus made up of individuals related
either by blood or through marriage is called a patriarchal, or
tribal, state. This form of community was enlarged even in very early
times, advantage being taken of the possibility of adopting strangers
into the circle of related families, and of amalgamating with them.
Still, the fundamental idea that the community is composed of related
families always remains uppermost in the minds of uncivilised peoples.
The tribal state gradually develops into the territorial state. The
connection of the community with a definite region becomes closer;
strange tribes settle in the same district; they are permitted to
remain provided tribute is paid and services are performed, and are
gradually absorbed into the community, the strangers and the original
inhabitants--plebeians and patricians--united together into one
aggregate. Thus arises the conception of a state which any man may join
without his being a member of any one of the original clans or families.
[Sidenote: Growth of the Idea of a State]
In this way the idea of a state becomes distinct from that of a people
bound together by kinship, the latter being especially distinguished by
a certain unity of external appearance, custom, character, and manner
of thought. This is not intended to suggest that an amalgamation of
different race elements in a state and an assimilation of different
modes of thought and of feeling are not desirable, or that a spirit
analogous to the sense of unity in members of the same family is not
to be sought for; such a condition is most likely to be attained
if a certain tribe or clan take precedence of the others, as the
most progressive, to which the various elements of the people annex
themselves.
[Illustration: “IN THE NAME OF JUSTICE”: SOME OLD METHODS OF TORTURE
These pictures represent: 1. Roman gaolers cutting off a
Christian’s ears. 2. The cangue as still used in China. 3. A
prisoner on the rack in Mediæval England. 4. Torture of the Iron
Chair. 5. The ordeal of fire and branding.
]
[Sidenote: Tribes and their Chiefs]
The tribal state has a fixed form of government. The chiefs or
patriarchs of the various families stand at the head of affairs, the
position of chief being either hereditary or elective. In most cases,
however, it is determined by a combination of both methods, a blood
descendant being chosen provided he is able to give proof of his
competence. In addition there is often the popular assembly. In later
times many innovations are introduced. Passion for power united to a
strong personality often leads to a chieftainship in which all rights
and privileges are absorbed or united in the person of one individual;
so that he appears as the possessor of all prerogatives and titles,
those of other men being entirely secondary, and all being more or
less dependent upon his will. Religious conceptions, especially,
have had great influence in this connection. Nowhere is this so
clearly shown as in “teknonymy,” an institution formerly prevalent
in the South Pacific islands, according to which the soul of the
father is supposed to enter the body of his eldest son at the birth
of the latter, and that therefore, immediately from his birth, the
son becomes master, the father continuing the management of affairs
merely as his proxy. Other peoples have avoided such consequences
as these by supposing the child to be possessed by the soul of his
grandfather, therefore naming first-born males after their grandfathers
instead of after their fathers. Another outcome of the institution of
chieftainship is the chaotic order of affairs which rules among many
peoples on the death of the chieftain, continuing until a successor
is seated on the throne--a lawless interval of anarchy followed by a
regency.
The power of a chieftain is, however, usually limited by class rights;
that is, by the rights of sub-chieftains of especially distinguished
families, and of the popular assembly, among which elements the
division of power and of jurisdiction is exceedingly varied. These
primitive institutions are rude prototypes of future varieties of
coercive government, of kingship, either of aristocratic or of
republican form, in which the primitive idea of chieftainship as the
absorption of all private privileges is given up, and in its place the
various principles of rights and duties of government enter.
[Sidenote: Growth of Military Classes]
Class-differentiation with attendant privileges and prerogatives is
especially developed in warlike races, and in nations which must be
ever prepared to resist the attacks of enemies, by the establishment of
a militant class. The militant class occupies an intermediate position
between the governing, priest, and scholar classes on the one hand,
and the industrial class--agriculturists, craftsmen, merchants--on the
other. Employment in warfare, necessary discipline, near association
with the chieftain, and the holding of fiefs for material support give
to this class a unique position. Thus the warrior castes developed
in India, the feudal and military nobility in Japan, the nobility in
Germany, with obligations and service to feudal superiors and to the
Court. This system survives for many years, until at last feudal tenure
gradually disappears, and its attendant prerogatives are swallowed up
by all classes through a universal subjection to military service;
although even yet a distinct class of professional soldiers remains at
the head of military affairs and operations, and will continue to do
so as long as there is a possibility of internal or external warfare.
However, here too the militant class is absorbed into a general body
of officials. Officials are citizens who not only occupy the usual
position of members of the state, but to whom in addition is appointed
the execution of the life functions of the nation, as its organs; in
other words, such functions as are peculiar to the civic organisation
in contradistinction to the general functions exercised and actions
performed by individual citizens as independent units. Officialism
includes to a special degree duty to its calling and to the public
trust, and there are also special privileges granted to officials
within the sphere appointed for them.
[Sidenote: The Birth of Parliaments]
In a society governed by a chieftain, as well as in a monarchy, there
is a popular assembly or consultative body; either an unorganised
meeting of individuals, or an organised convention of estates founded
on class right. A modern development, that certainly had its prototype
in the patriarchal state, is the representative assembly, an assembly
of individuals chosen to represent the people in place of the popular
gathering. The English Government, with its representative legislative
bodies, is a typical example in modern civilisation.
One of the chief problems encountered not only in a society ruled by a
chieftain, but also in states of later development, whether governed
by a potentate or by an aristocracy, is the relation of temporal to
spiritual power. Sometimes both are united in the head of the state, as
in the cases of the Incas of Peru and of the Caliphate. Sometimes the
spiritual head is distinct and separate from the temporal; frequently
the two forces are nearly associated, a member of the imperial family
being chosen for the office of high-priest, as among the Aztecs.
Often, however, the two functions are completely independent of each
other, as among many African races, the medicine-man occupying a
position entirely independent of the chieftain. Such separation may, of
course, lead to friction and civil war; it may also become an element
furthering to civilisation, a source of new ideas, opening the way
to alliances between nations, and setting bounds to the tyranny of
individuals, as exemplified in the relation of the Papacy to the Holy
Roman Empire.
[Sidenote: State Justice a Momentous Step Forward]
The form of state in which the functions of government are exercised
by a chieftain contributes greatly to state control and enforcement
of justice. The realisation of right had been from the first a social
function; but its enforcement was incumbent on the unit group of
individuals (families or tribes bound together by friendship). The
acquisition by the state of the power to dispense justice and to make
and enforce law is one of the greatest events of the world’s history.
The idea of all right being incorporated in the chieftain (and social
classes) played an important part in bringing about this condition of
affairs; for as soon as this conception receives general acceptance,
the chieftain, and with him the state, become interested in the
preservation and enforcement of justice, even in its lower forms in
the common rights of the subjects. On the other hand, not only the
interests of chieftainship, but also those of agriculture and commerce,
are furthered by the preservation of internal peace; and internal peace
calls for state control of justice and enforcement of law.
[Illustration:
Mansell
AN EARLY EGYPTIAN REPRESENTATION OF JUSTICE
“The Judgment of the Dead” as illustrated by innumerable paintings
on the walls of Egyptian temples and tombs.
]
Moreover the religious element worked to the same end. Wickedness was
held to be an injury to the deity, whose anger would be visited upon
the entire land--a conception that lasted far into the Middle Ages,
and according to which the fate of Sodom and Gomorrah was held to be
typical of the effect of the curse of God. Already in primitive times
religion led to a strange idea of justice--secret societies consecrated
by the deity took upon themselves the function of enforcing right,
instituting reigns of terror in their districts, maintaining order in
society, and claiming authorisation from the god with whose spirit
they were permeated. Later, influenced by all these causes, the social
aggregate took over the control of justice. It was already considered
to be the upholder of right, the servant of the deity, the maintainer
of public peace, the dispenser of atoning sacrifices, etc.; and so
the various elements conceived of as justice, which had previously
been distributed among the single families, tribes, associations, and
societies, were combined, and placed under state control.
[Illustration: AN EARLY CONCEPTION OF THE SPIRIT OF JUSTICE: THE
JUDGMENT OF SOLOMON
Reproduced from the picture by the French artist, Nicolas Poussin,
who flourished in the first half of the seventeenth century.
]
[Illustration: THE MODERN IDEAL OF JUSTICE
From the fresco by Gerald Moira in the New Central Criminal Court,
London. Most of the figures are studies from well-known public men
of recent years.
]
[Sidenote: Terror & Tyranny of Religion]
[Sidenote: The Ordeal and the Curse]
Certain forms for the dispensation of justice, judging of crimes, and
determining of punishments were developed. Thus arose the different
forms of judicial procedure, which, for a long time bore a religious
character. The deity was called upon to decide as to right and
wrong--divinity in the form of natural forces. Hence the judgments
of God through trial by water, fire, poison, serpents, scales,
or--especially in Germany during the Middle Ages--combat, or decision
by the divining eye, that was closely allied to the so-called trial by
hazard. A peculiar variety of ordeal is that of the bier, according
to which the body of a murdered man is called into requisition, the
soul of the victim assisting in the discovery of the murderer.
Ordeals are undergone sometimes by one individual, sometimes by two.
An advance in progress is the curse, which takes the place of the
ordeal, the curse of God being called down upon an individual and
his family in case of wrongdoing or of perjury. The curse may be
uttered by an individual in co-operation with the members of families.
Thus arise ordeals by invocation and by oath with compurgators.
Originally a certain period of time was allowed to pass--a month, for
example--for the fulfilment of the curse. In later times, whoever
took the oath--oath of innocence--was held guiltless. Witnesses
succeeded to conjurers; divining looks were replaced by circumstantial
evidence; and, instead of a mystic, a rational method of obtaining
testimony was adopted. The development was not attained without certain
attendant abuses; and the abolition of ordeal by God was among many
peoples--notably the inhabitants of Eastern Asia, the American Indians,
and the Germans of the Middle Ages--succeeded by the introduction of
torture. In many lands torture stood in close connection with the
judgment of God; in others it originated either directly or indirectly
in slavery. According to the method of obtaining evidence by torture,
the accused was forced through physical pain to disclosures concerning
himself and his companions, and, in case he himself were considered
guilty, to a confession. However barbarous and irrational, this system
was employed in Latin and Germanic nations excepting England, until the
eighteenth century, in some instances even until the nineteenth.
[Sidenote: The Slow Building up of Law]
[Sidenote: Evolution of the Modern State]
Judgment was first pronounced in the name of God; in later times,
in the name of the people or of the ruler who appeared as the
representative of God. The principles of justice, the validity of which
at first depends upon custom, are in later times proclaimed and fixed
as commands of God. Thus systems of fixed right come into being first
in the form of sacred justice, then as commands of God, and finally
as law. Law is a conception of justice expressed in certain rules and
principles. Originally there were no laws; the standard for justice was
furnished to each individual by his own feelings; only isolated cases
were recorded. As time advanced, and great men who strove to bring
about an improvement in justice arose above the generality of mankind;
when the ruling class became differentiated from the other classes;
when it was found necessary to root out certain popular customs--then,
in addition to the original collection of precedents, there arose law
of a higher form: law that stood above precedent, that altered custom,
and opened up new roads to justice. Great codes of law have not been
compilations only; they have led justice into new paths. Originally a
law was looked upon as an inviolable command of God, as unalterable
and eternal; its interpretation alone was earthly and transitory.
As years passed, men learned to recognise that laws themselves were
transitory; and it became a principle that later enactments could alter
earlier rules. The relations of later statutes to already established
law, and how the laws of different nations influence one another, are
difficult, much-vexed questions for the solution of which special
sciences have developed--transitory and international law. Judgment and
law are intimately concerned with justice, the conception of right as
evolved from the double action of life and custom. To this development
of justice is united an endeavour of the state or government not only
to further welfare by means of the creation and administration of
law, but also to take under its control civilising institutions of
all sorts. This was originally a feature of justice itself; certain
practices inimical to civilisation were interdicted and made punishable
offences. Already in the Middle Ages systems of police played a great
part among governmental institutions, especially in the smaller states.
Subsequently the idea was developed that not only protection through
the punishment of crime, but also superintendence of and promotion of
the public weal, should be administered by law; and thus the modern
state developed with its policy of national welfare. With this arose
the necessity for a sharper distinction to be drawn between justice and
the various actions of an administration; and thus in modern times men
have come to the system--based on Montesquieu--of the separation of
powers and independence of justice.
Justice varies according to the development of civilisation, and
according to the function that it must perform in this development; in
like manner every age creates its own material and spiritual culture.
Every poet is a poet of his own time.
[Sidenote: Right Way to View History]
The notion of natural right, however unhistorical it was in itself,
characterised a period of transition in so far as it enabled men to
form a historical conception--a conception of what might be: for, by
contrasting actual with ideal justice, we are enabled to escape the
bonds of the opinions of a particular time, and to look upon such
opinions and views objectively and independently. Yet it is certainly
a foolish proceeding to consider an ideal, deduced principally from
conceptions and opinions of the present, to be a standard by which
to measure the value of historical events of all times, sitting in
judgment over the great names of the past with the air of an inspector
of morals. The office of the historian as judge of the dead is quite
differently constituted. Every age must be judged in accordance with
the relation which it bears to the totality of development; and every
historical personage is to be looked upon as a bearer of the spirit of
his day, as a servant of the ideas of his time. Thus it is quite as
wrong to pronounce moral censure on the men of history, as it is wrong
to judge an era merely according to its good or evil characteristics.
A period must be estimated according to what it has either directly or
indirectly accomplished for mankind.
[Sidenote: Conception of a United World]
There are common factors of civilisation shared by nations themselves,
through which many contradictions disappear. The religious
civilisations of Christianity, Mohammedanism, Judaism, Buddhism and
Confucianism have been the determining factors of the intellectual and
emotional life, even influencing the course of events, in vast regions.
And thus it is also comprehensible that in the judicial life of nations
there is an endeavour for a closer approach, and also the existence
of equalising tendencies. In spite of countless variations in detail,
there is a certain unity of law in the entire Mohammedan world; and
although the hope of establishing the unity of Roman canonistic law
over the whole of Christendom has not been realised none the less it
was a tremendous idea: that of a universal empire founded on the Roman
law of the imperators, and placed under the rule of the German emperor,
thus ensuring the continuance of the law of the Roman people--an idea
that swayed the intellects of the Middle Ages up to the fourteenth,
even to the fifteenth century, and according to which the emperor
would have been the head of all Europe, the other sovereigns merely
his vassals or fief-holders. This idea, once advocated by such a great
spirit as that of Dante, has, like many others, passed into oblivion;
and in its place has arisen the conception of independent laws of
nations. Yet the original idea has had great influence: it has led to
a close union of Christian peoples; it opened a way for Roman law to
become universal law, although, to be sure, English law, completely
independent of that of Rome, has grown to unparalleled proportions as a
universal system, entirely by reason of the marvellous success of the
English people as colonists. Likewise international commerce will of
itself lead to a unification of mercantile, admiralty, copyright, and
patent law.
Then the idea of an international league must develop, arising from
the idea of the unity of Christian nations. We have advanced a great
distance beyond the time when every foreigner was considered an enemy,
and when all foreign phenomena were looked upon as strange or with
antipathy. Rules for international commerce are developed; state
alliances are entered into for the furtherance of common interests and
for the preservation of peace. Many tasks which in former times would
have been executed by the empire are now undertaken by international
associations; and the time for the establishment of international
courts of arbitration for the adjustment of differences between states
is already approaching.
[Sidenote: Common Interests of Mankind]