8. THE BEGINNINGS OF THE LEGAL SYSTEM.

The social regulations which we have thus far considered find their

consummation in the _legal system_. This possesses no content

independent of the various social institutions, but merely provides

certain norms of action with a social sanction. As a result, these

norms are protected against violation or are designated as regulations

which, whenever necessary, are defended against violators by the

use of external force. Thus, the legal system does not involve the

outright creation of a social order. It consists primarily in the

singling out, as definite prescriptions, of certain regulations

that have already arisen in the course of social life, and that are

for the most part already maintained by custom. The enforcement

of these regulations is expressly guaranteed by society, and means

are established whereby this pledge is to be redeemed. Thus, the

most important social institutions--the family, the classes, the

vocations, village settlements and cities, and also the relations of

property, intercourse, and contract, which these involve--were already

in existence before becoming constituent parts of a legal system.

Moreover, the advance beyond custom and the settlement of difficulties

case by case was not made suddenly or, much less, at the same time in

all regions, but came only very gradually. The formulation of laws did

not, as a rule, begin in connection with the political community and

then pass down to the more restricted groups, ending with the single

individual. On the contrary, law began by regulating the intercourse of

individuals; later, it acquired authority over family relations, which

had remained under the shelter of custom for a relatively long period;

last of all, it asserted itself also over the political order. That

is to say, the State, which is the social organization from which the

legal system took its rise, was the very last institution in connection

with which objective legal forms were developed. We may account for

this by reference to a factor which played an important rôle from the

very outset. After the legal system had once grown up out of custom

and had subjected many of the important fields of the latter to its

authority, it was able of itself to create regulations, which were

thus from the very beginning legal prescriptions. Such primarily legal

regulations arose in connection with conditions in which, frequently,

the fact that there be some law was of more importance than the precise

character of the law. But even in these cases the regulations were

always connected with the larger body of law that was rooted in custom.

This larger body of law was but supplemented by ordinances that were

called into being by temporal and cultural conditions.

The transition from custom to law reflects the joint influence of

_two_ factors, which, particularly at the outset, were themselves

closely connected. The first of these factors consists in the rise

of firmly established forms of rulership, which are indicative also

of the transition leading to _States_; the other is the _religious_

sanction which was attached to those regulations that were singled out

by the law from the broader field of custom. Both factors indicate

that the heroic age properly marks the origin of the legal system,

even though it be true that all such changes are gradual and that

occasional beginnings of the legal system, therefore, may be found at

an earlier period, in connection with the very ancient institution

of chieftainship. As regards the external social organization and

the religious life of the heroic age, these are characterized,

respectively, by the development of strict forms of rulership and by

the origin of a deity cult. Each of these social phenomena reinforces

the other. The kingdom of the gods was but the terrestrial State

projected into an ideal sphere. No less was the development of the

legal system dependent upon the union of the two factors. Neither the

external force of the political authority governing the individual nor

the inner constraint of religious duty sufficed in itself to establish

the tremendous power characteristic of the legal system from early

times on. It is true that, at a later period, the feeling that law

represents a religious duty gave way to the moral law of conscience.

The latter, however, itself owes its origin to the increasing influence

of the political authority which is at the basis of the legal system;

moreover, as an inner motive reinforcing the external compulsion of

the law, it continued to preserve a similarity to the religious source

from which it sprang. True, a significant change occurred. During the

early stages of legal development, the weight of emphasis fell on

the religious aspect of law, whereas it later more and more shifted

to the political side. At first, the entire body of law was regarded

as having been given directly by the deity, as was the case, for

example, with the Ten Commandments of Moses and with the Israelitic

Priests' Code, which clothes even the most external modes of life

in the garb of religious commands. Sometimes a twofold credit is

given for the introduction of the legal system, in that the one who

wields the power is regarded as administering justice both in his own

name and as commissioned by the gods. An illustration of this is the

Babylonian code of Hammurabi. It is, naturally, when the priests wield

the authority that the laws are most apt to be ascribed exclusively to

the gods. The tendency, on the other hand, to give the ruler a certain

amount of credit for legislative enactments, is greatest whenever the

ruler occupies also the position of chief priest. The direct impetus to

such a union of priesthood and political authority is to be found in

the rise of the legal system itself, for this resulted from a fusion

of religious and political motives. The idea that the earthly ruler

is the terrestrial representative of a world-governing deity, or, as

occurs in extreme cases, that he is the world-governing deity himself,

is, therefore, a conception that is closely bound up with the rise of

political society and that receives pregnant expression in the earliest

forms of the legal system. No trace of such a conception was associated

with the chiefs of the totemic period. Their position was entirely

distinct from that of the magicians, the shamans, and the medicine-men,

who were the original representatives of the priestly class that

later arose in the age of deity cults. But it is for this very reason

that the mandates of the totemic chief cannot be said as yet to have

constituted a legal system; they were commands which were given as

occasion demanded, and which were determined partly by the will of

the chief and partly by transmitted customs. Secular and religious

motives are to be found in similar combination elsewhere, even among

tribes that are usually regarded as peoples of nature, as, for example,

particularly those of Polynesia. In cases such as these, however,

there are present also the beginnings of a legal system, as well as

its correlates, the fundamentals of a political organization and of

a deity cult. Whether these are the remnants of a culture brought by

these migratory peoples from their original Asiatic home, or whether

they represent an independently achieved culture that has fallen into

decay, we need not here inquire.

That the development of the legal system is dependent upon the first

of these phenomena--that is, upon political organization--is directly

apparent from the fact that the administration of justice in general

presupposes two sources of authority. Here again the beginnings are to

be found in the totemic age. During this period, the administration

of justice was vested, in the first place, in a relatively restricted

group of the older and experienced men, such as exercised authority

over the older members of the horde even in pretotemic times. Judicial

powers were assumed, in the second place, by individual leaders in

the chase or in war. The authority of the latter, it is true, was

temporary, frequently shifting with changing circumstances; it was all

the more effective, however, for the very reason that it was centred

in single individuals. Now, the initial step in the formation of a

legal system--which, as already remarked, was at first concerned merely

with what we would call civil justice--was taken when the quarrels

of individuals came to be settled in the same way as were matters of

common concern to the clan or tribe--namely, by the decisions of the

two long-established authorities, the 'council of elders,' as they

later continued to be called among many civilized peoples, and the

individual leader or chieftain. Even in relatively primitive times,

fellow-tribesmen or clansmen who disagreed as to the ownership of an

object or perhaps as to whether or not some mutual agreement had been

kept, and who preferred a peaceful decision to settlement by combat,

were accustomed to seek the decision of the elders or of a man of

commanding respect. Thus, these initial stages of legal procedure

indicate that the earliest judge was an _arbitrator_; he was freely

selected by the disputants, though he constantly became more firmly

established in his position as a result both of his authority in

the general affairs of the tribe and of tradition. We next find the

_appointed_ judge, who owes his office to political authority, and who

decides particular controversies, not because he has been asked to do

so by the parties themselves but 'of right' and as commissioned by

the State; supported as he is by the political power, his decision has

compelling force. As soon as the State assumes the function of deciding

the controversies of individuals, the judge becomes an _official_.

Indeed, he is one of the first representatives of officialdom. For,

in the early stages of political organization, all matters other than

the quarrels of individuals are regulated by ancient customs, except

in so far as war and the preparation for war involve conditions that

necessarily place authority of an entirely different sort in the hands

of particular individuals. Thus, together with the offices of those

who, though only gradually, come to have charge of the maintenance of

the military organization even in times of peace, the office of the

judiciary represents one of the earliest of political creations. In

it, we find a parallel to the division of power between the ruler and

a separate council of experienced men, an arrangement that represents

a legacy from the period of tribal organization, but that only now

becomes firmly established. The individual judge and the college of

judges both occur so early that it is scarcely possible to say whether

either antedated the other. Affecting the development just described

are two other conditions, capable of bringing about a division of

judicial authority at an early time. One of these conditions is the

connection of the state with deity cult, as a result of which the

secular power is limited by the authority of the priesthood, whose

chief prerogative comes to be penal justice. The second factor in the

differentiation of judicial functions consists in the institution of

chieftainship, one of the two characteristic features of political

society. Chieftainship involves a tendency towards a delegation of

the supreme judicial authority to the ruler. This is particularly the

case during the first stages of political organization, which still

reflect the fact that the external political power of the chieftain

grew up out of the conditions attendant upon war. Even though the

secular judiciary, which originated in the council of elders, or, in

certain cases, the judicial office of the priest, also continues

to be maintained, the ruler nevertheless reserves for himself the

authority over the most important issues. Particularly in doubtful

cases, in which the ordinary judge has no traditional norms to guide

his decision, the 'king's court' intervenes in order, if necessary,

to secure a recognition of the claim of reasonableness. This is

especially apt to occur in connection with capital crimes. Hence it

is that, even after penal law has once become a matter of general

governmental control--which, as a rule, occurs only at a later stage of

legal development--the final decision in criminal cases usually rests

with the ruler. Generally, moreover, it is the ruler alone who has

sufficient power to put an end to the blood-revenge demanded by kinship

groups. Owing to the fact that, in his capacity of military leader,

the ruler possesses power over life and death during war with hostile

tribes, he comes to exercise the same authority in connection also with

the feuds of his fellow-tribesmen. Modern States have retained a last

remnant of this power in the monarch's right to pardon, an erratic

phenomenon of a culture that has long since disappeared.

Thus, the State, as such, possesses an external power which finds

its most direct expression--just as does the unity of the State--in

the exercise of judicial authority on the part of the ruler. In the

beginnings of legal development, however, law always possesses also

a _religious sanction_. True, the above-mentioned unification of

the offices of priest and judge or of the authority of priest and

ruler--the latter of which sometimes occurs in connection with the

former--may be the result of particular cultural conditions. This,

however, but indicates all the more forcibly how permanent has been

the religious sanction of law. Such a sanction is evidenced by the

words and symbolisms that accompany legal procedure even in the case

of secular judges and of the relations of individuals themselves. Not

without significance, for example, is the solemnity manifested in the

tones of those who are party to a barter, a contract, or an assignment

of property. Indeed, their words are usually accompanied by express

confirmations resembling the formulas of prayer and imprecation; the

gods are invoked as witnesses of the transaction or as avengers of

broken pledges. Because of the solemnity of the spoken word, speech was

displaced but slowly by writing. Long after the latter art had been

acquired, its use continued to be avoided, not only in the case of

legal formulas, such as the above, but occasionally even in connection

with more general legal declarations. In the Brahman schools of India,

for example, the rules of legal procedure, as well as the hymns and

prayers, were for centuries transmitted purely through memory; we are

told, moreover, that in ancient Sparta it was forbidden to put the laws

in writing. To an age, however, which is incapable of conceiving even a

legal transaction except as a perceptual act, the spoken word by itself

is inadequate to give the impression of reality. As an indication

that he has acquired a piece of land, the purchaser lifts a bit of

soil from the earth, or the vendor tosses a stalk of grain to him--a

ceremony which is imitated in the case of other objects of exchange and

which has led to the word 'stipulation' (from the Latin _stipulatio_,

throwing of a stalk). Another symbol of acquisition is the laying on of

the hand. Similar to it is the clasp of right hands as a sign of mutual

agreement. By this act the contracting parties pledge their freedom

in case they break the promise which they are giving. When the fact

that the two parties lived at some distance from each other rendered

the hand clasp impossible, the Germans were accustomed to exchange

gloves. One who challenged another to a duel likewise did so by the

use of a glove, even though his opponent was present. By throwing

his glove before his opponent the challenger gave expression to the

distance which separated him in feeling from his enemy. In this case,

the symbol has changed from a sign of agreement to the opposite. All

the symbols of which we have been speaking agree in having originally

been regarded, not as symbols, but as real acts possessing certain

magical potencies. When an individual, who is acquiring a piece of

land, picks up a bit of soil while speaking the appropriate words, he

intends to produce a magical effect upon the land, such that disaster

will come to any one who may seek to deprive him of it. He who offers

his hand in sealing a compact signifies that he is prepared to lose his

freedom in case he fails to keep his word. For this reason the shaking

of hands is sometimes supplemented by the extension of a staff--a

special use of the magical wand which occurs particularly when the

pledge is administered by a judge. In a second stage of development,

the act loses the status of reality, but it remains associated with

religious feelings. At a third stage, it becomes a mere matter of form,

though the solemnity with which it envelops the transaction adds to the

impressiveness of the latter and fixes it more firmly in memory.

Combined with the word, thus, is a gesture that faithfully reflects its

meaning. Moreover, other individuals are summoned to witness the legal

transaction. This is done, not so much that these persons may later

be able to give definite testimony, as that they, too, shall hear the

word and see the gesture, and so, in a sense, enhance the reality of

that which is transpiring. Besides this oldest form of witness, who is

not to testify regarding that which he has experienced, as occurs in

later times, but who is merely present on the occasion of the legal

transaction, there is the _compurgator_, who substantiates the oath

of the man involved. The latter fortifies his statements by invoking

the gods as witnesses. Now, the oath of the compurgator does not

relate to the testimony of his companion, but merely to the companion

himself; it is a pledge to share the punishment of the latter in case

he swears falsely. As in battle, so also in calling upon the terrible

powers whose vengeance is to fall upon the perjurer, companion stands

protectingly by the side of companion. Thus, the oath itself is a

ceremony both of cult and of magic. As a cult activity, the oath was

originally given at the place where the cult was administered--that

is, in the immediate presence of the gods; the method of procedure

was to raise the fingers and to point them directly to the gods, who

were regarded as witnesses of the act. The magical nature of the

oath appears in the fact that the latter involved the conjuration of

an object, which was to bring disaster upon him who took the oath in

case he swore falsely. Thus, the Germans swore by their battle-steeds

or their weapons, and, in so doing, they laid their hands upon these

objects; or, instead of the latter, they used an oath-staff--one of the

numerous metamorphoses of the magical wand--which was extended toward

him who received the oath, whether the opposing party or the judge.

This oath signified that the object by which the individual swore would

bring ruin upon him in case he committed perjury. The oath, therefore,

came to be a fixed and definitely prescribed means of judicial

procedure, though this occurred only after deity cult effected a union

of the two factors, cult and magic. Nevertheless, the beginnings of

this development are to be found as early as the totemic age, and

they approximate to the cult-oath particularly in those regions that

practise ancestor worship. The Bantu, for example, swears by the head

of his father or the cap of his mother, as well as by the colour of his

ox. In all these cases, the intention is that the perjurer shall suffer

the vengeance which the demon of the deceased or of the animal visits

upon him who swears falsely.

Closely related in its motives to the oath is another legal

institution, the _ordeal_. In the earliest form of the ordeal, the

strife of individuals was settled by a duel. Such an ordeal was very

similar to the sword-oath, at least among Indo-Germanic peoples. Just

as the man who swore by his weapons invoked death by their agency

in the indefinite future, so each of the participants in the duel

sought to bring these magical powers into immediate effect in the

case of his opponent. Not to him whose arm is the stronger, but to

him who has the stronger cause, will the gods grant victory through

the magic of his weapon. Like the oath, therefore, the ordeal was

originally a method of legal procedure in civil cases. Like the oath,

furthermore, it was, in its beginnings, a means whereby individuals

settled their controversies independently of a judge. It is at this

point that the punitive action of individuals gives way to public

legal procedure. Originally, crimes against life and property were

dealt with by individuals; the endeavour to secure the judgment of the

gods by means of the duel was doubtless one of the earliest steps by

which the penal process became a public procedure, and the punishment

itself, therefore, became raised above the plane of mere revenge. Blood

revenge involved an unexpected attack in the open or from ambush. To

renounce this custom in favour of the duel, therefore, was in harmony

with the character of the heroic age. For this was the period in which

the ideal of manly honour was rapidly gaining strength, and in which,

therefore, it was regarded as unworthy under any circumstances to take

the life of a defenceless man. The principle accepted as self-evident

in war, namely, that the person attacked have an opportunity to defend

himself, became, in a warlike age, a maxim applying also to times

of peace. Moreover, even though it be true of the ordeal as of the

oath that, at the outset, cult was secondary to magical conjuration,

nevertheless, the dominance of the latter varied with the degree in

which the State freed penal justice from the passion for revenge on

the part of individuals. The ordeal thus came to be more than merely a

combat between the accuser and the accused. The judge in charge of the

combat acquired the duty of determining guilt or innocence, and, as a

result, the ordeal assumed other forms. Only the one who was accused

was now involved. The ordeal changed from a magic combat into a _magic

test_, which came to be regarded as a direct revelation of the decision

of the deity. This led to the adoption of means of proof other than

combat. It was obviously cult that caused penal justice as such to be

taken out of the hands of private individuals. For this reason it was

particularly sacrilege that demanded a magical judgment independent of

the combat of individuals. In cases of sacrilege, the deity himself

tested the assertions of the one who endeavoured to free himself from

the charges of religious crime. The means for determining guilt or

innocence were fire and water--the same agencies that had long been

employed by religious cult for purposes of lustration. That the tests

by water and by fire used in connection with the witchcraft cases of

mediæval times still possessed a magical significance is unmistakable.

If the witch sank in the water--that is, if she was received by the

purifying element--she was guiltless. If the accused was not injured by

holding a glowing iron in his hand or by walking barefooted over coals,

this also was regarded as indicative of innocence. Apparently the

underlying conception was that the deity who gave to water and fire the

power of purifying a sinner from his guilt also communicated to them

the power of freeing the innocent from an accusation and of withholding

assistance from the guilty. Hence it is that while these modes of

divine judgment were not, indeed, as common as was purification by

means of water and fire, they nevertheless appeared again and again,

so far as their fundamental characteristics are concerned. They were

resorted to by the Germanic peoples, and were prevalent also in

Græco-Roman antiquity, and in India; trial by water was likewise a

custom in Babylonia, where it was prescribed by Hammurabi as a means by

which a suspected person might free himself. We have noticed how, in

the case of the ordeal and particularly of its earliest form, judicial

combat, the legal controversies of individuals concerning rights

relating to property, buying and selling and other agreements, came

to be considered from the standpoint of _punishment_. This process is

characteristic of the development of penal law in general.

9. THE DEVELOPMENT OF PENAL LAW.

As an institution protected by the State, the administration of penal

law everywhere grew up out of civil law. The judge who was appointed by

the State to arbitrate personal controversies developed into a criminal

judge. Still later these two judicial offices became distinct. This

separation began in connection with the most serious offences, such

as seemed to demand a separate tribunal. The determining feature, in

this instance, was, at the outset, not any qualitative characteristic

of the offence but its gravity. Now, at the time when deity cults

were at their zenith, the most serious crimes were held to be those

connected with religion, namely, temple sacrilege and blasphemy. Only

at a relatively late period were crimes against life and limb classed

along with those affecting religion; to these were added, shortly

afterwards, violations of property rights. That murder, though the

most frequent crime of early culture, should not be penalized by

political authority until so late a period, is directly due to the

fact that it has its origin in the strife of individuals. In such a

strife, each man personally assumes all consequences, even though

these consist in the loss of his life. Even to slay a man from ambush

is regarded as justifiable by primitive society if an individual is

avenging a crime from which he has suffered. As family and kinship

ties become stronger, the family or kin participates as a group in the

quarrels of its individual members, just as it does in war against

hostile tribes. A murder, whether or not it be an act of vengeance, is

avenged by a fellow-member of the victim, either upon the murderer or

upon some one of his kin, inasmuch as in this case also the group is

regarded as taking the part of the individual. This is the practice

of _blood-revenge_, a practice which antedates the heroic age but

which nevertheless continues to exercise a powerful influence upon it.

Blood-revenge is so closely bound up with totemic tribal organization

that it was probably never lacking wherever any such system arose.

Its status, however, was purely that of a custom, not that of a

legal requirement. It was custom alone, and not political authority,

that compelled one kinsman to avenge the death of another. It was

custom also that sought to do away with the disastrous results of a

continuous blood-feud by means of an arrangement that came to take

the place of blood-revenge. This substitute was the 'wergild,' which

was paid as an indemnity by the malefactor to the family of the one

who had been murdered, and which thus maintained precisely the same

relation to blood-revenge as did marriage by purchase to marriage by

capture. In the former case, however, the substitution of a peaceful

agreement for an act of violence gave the political authority its first

occasion to exercise its regulative power. This first manifestation of

power consisted in the fact that the political authority determined

the amount which must be paid in lieu of the blood-guilt. With the

institution of wergild the entire matter becomes one of civil law. Only

one further step is necessary, and the law of contract will indirectly

have established the penal authority of the State. This step is taken

when the State _compels_ the parties to enter into an agreement on

the basis of the wergild. The advance, however, was not made at a

single bound, but came only through the influence of a number of

intermediate factors. That which first demanded a legal determination

of the amount of expiation money was the necessity of estimating the

personal value of the one who had been murdered, according as the

individual was free-born or dependent, of a high or of a low class, an

able-bodied man or a woman. Such a gradation in terms of general social

status suggested the propriety of allowing temporary and less serious

injuries to life and limb to be compensated for on the basis of their

magnitude. But the estimation of damages in such cases again made civil

jurisdiction absolutely necessary.

Closely interconnected with this complex of social factors, and

imposing a check upon the impulse for vengeance that flames up in

blood-revenge, was a religious influence--the fear of contaminating

by a deed of violence a spot that was sanctified by the presence of

invisible gods. No violence of any kind was allowed within sacred

precincts, particularly in places set apart for sacrifice or for

other cult ceremonies; least of all was violence tolerated in the

temple, for the temple was regarded as the dwelling of a deity. Such

places, therefore, afforded protection to all who fled to them from

impending blood-revenge or other sources of danger. The sacred place

also stood under the protection of the community; any violation of

it brought down upon the offender the vengeance of the entire group,

for the latter regarded such sacrilege as a source of common danger.

Thus, the protection of the _sanctuary_ came to be a legal right

even at a time when retribution for the crime itself was left to the

vengeance of individuals. The right of protection afforded by the

temple, however, was sometimes held to exist also in the case of the

dwellings of persons of distinguished power and esteem, particularly

the dwellings of the chief and of the priest. Indeed, prior to the

existence of public temples, the latter were doubtless the only places

of refuge. In this form, the beginnings of a right of refuge date back

even into the totemic age. At that early time, however, the protection

was apparently due, not so much to directly religious factors, as

to the personal power of the individual who afforded the refuge, or

also, particularly in Polynesia, to the 'taboo' with which the upper

classes were privileged to guard their property. But, since the taboo

was probably itself of religious origin, and since the medicine-man,

and occasionally also the chief, could utilize demoniacal agencies as

well as his own external power, even the very earliest forms of refuge

were of the general nature of religious protection. In some cases, the

right of refuge eventually became extended so as to be connected not

only with the property set apart for the chief or the priest but also

with the homes of inferior men. This, however, was a relatively late

phenomenon. Its origin is traceable to the cult of household deities,

first of the ancestral spirits who guard domestic peace, and then of

the specific protective deities of the hearth by whom the ancestral

spirits were supplanted. As a rule, it was not the criminal but the

visiting stranger who sought the protection of the house. The right

to hospitality thus became also a religiously sanctioned right to

protection. The guest was no less secure against the host himself than

against all others. The right of protection afforded by the house,

therefore, should probably be interpreted as a transference of the

right of refuge inherent in sacred precincts. The protective right

of the chief was doubtless the beginning of what in its complete

development came to be household right in general.

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.

11. THE ORIGIN OF GODS.

At first glance it may seem presumptuous even to raise the question as

to how gods originated. Have they not always existed? one is inclined

to ask. As a matter of fact, this is the opinion of most historians,

particularly of historians of religion. They hold that the belief

in gods is underived. Degenerate forms may arise, the belief may at

times even disappear altogether or be displaced by a crude belief in

magic and demons, but it itself can in no wise have been developed

from anything else, for it was possessed by mankind from the very

beginning. Were it true that the belief in gods represents an original

possession of mankind, our question concerning the origin of gods would

be invalidated. The assumption, however, is disproved by the facts of

ethnology. There are peoples without gods. True, there are no peoples

without some sort of supersensuous beings. Nevertheless, to call all

such beings 'gods'--beings, for example, such as sickness-demons or the

demons which leave the corpse and threaten the living--would appear to

be a wholly unwarranted extension of the conception of deity. Unbiased

observation goes to show that there are no peoples without certain

conceptions that may be regarded as precursors of the later god-ideas.

Nevertheless, there can be no doubt that there are some peoples without

gods. The Veddahs of Ceylon, the so-called nature-Semangs and Senoi of

Malacca, the natives of Australia, and many other peoples of nature as

well, possess no gods, in our sense of the word. Because all of these

primitive peoples interpret certain natural phenomena--such as clouds,

winds, and stars--in an anthropomorphic fashion, it has been attempted

time and again to establish the presence of the god-idea of higher

religions. Such attempts, however, may be straightway characterized as

a play with superficial analogies in which no thought whatsoever is

taken of the real content of the god-conception.

Accepting the lead of ethnological facts, then, let us grant that

there are stages in the development of the myth in which real gods

are lacking. Even so, two opposing views are possible concerning

the relation of such 'prereligious' conditions to the origin of the

god-ideas essential to religion. Indeed, these views still actively

compete with each other in the science of religion. On the one hand,

it is maintained that the god-idea is original, and that belief in

demons, totemism, fetishism, and ancestor worship are secondary and

degenerate derivatives. On the other hand, the gods are regarded as

products of a mythological development, and, in so far, as analogous

to the State, which grew up in the course of political development

out of the primitive forms of tribal organization. Those who defend

the first of these views subscribe to a degeneration theory. If the

ancestors reverenced in cult are degenerated deities, and if the

same is true of demons and even of fetishes, then the main course of

religious development has obviously been downward and not upward.

The representatives of the second view, on the contrary, assume an

upward or progressive tendency. If demons, fetishes, and the animal or

human ancestors worshipped in cult antedate gods, the latter must have

developed from the former. Thus, the views concerning the origin of

gods may be classified as _theories of degeneration_ and _theories of

development_.

But the theories of degeneration themselves fall into two classes.

The one upholds an original monotheism, the basis of which is claimed

to be either an innate idea of God or a revelation made to all

mankind. Obviously this assumption is itself more nearly a belief

than a scientific hypothesis. As a belief, it may be accounted for

in terms of a certain religious need. This explains how it happens

that, in spite of the multiplication of contradictory facts, the

theory has been repeatedly urged in comparatively recent times. Only

a short time ago, even a distinguished ethnologist, Wilhelm Schmidt,

attempted to prove that such an original monotheism was without

doubt a dominant belief among the so-called Pygmies, who must, in

general, be classed with primitive peoples. The argument adduced in

support of this view, however, unquestionably lacks the critical

caution otherwise characteristic of this investigator. One cannot

escape the conviction that, in this case, personal religious needs

influenced the ethnological views, even though one may well doubt

whether the degeneration theory is a theory that is suited to satisfy

such needs.[1] The second class of theories adopts the view that the

basis of all religious development was not monotheism but primitive

polytheism. This polytheism is supposed to have originated, at a very

early age, in the impression made by the starry heavens, particularly

by the great heavenly bodies, the sun and the moon. Here for the first

time, it is maintained, man was confronted by a world far transcending

his own realm of sense perception; because of the multiplicity of the

motives that were operative, it was not the idea of one deity but

the belief in many deities that was evoked. In essential contrast

with the preceding view, this class of theories regards all further

development as upward. Monotheism is held to be a refined religious

product of earlier polytheistic conceptions. In so far, the hypothesis

represents a transition to developmental theories proper. It cannot be

counted among the latter, however, for it holds to the originality of

the god-idea, believing that this conception, which is essential to

all religion, was not itself the product of development, but formed

an original element of man's natural endowment. Moreover, the theory

attaches a disproportionate significance to the transition from many

gods to a single god. It is doubtful, to say the least, whether the

intrinsic value of the god-idea may be measured merely in terms of this

numerical standard. Furthermore, the fact is undeniable that philosophy

alone really exhibits an absolute monotheism. A pure monotheistic

belief probably never existed in the religion of any people, not even

in that of the Israelites, whose national deity, Jahve, was not at all

the sole god in the sense of a strict monotheism. When the Decalogue

says, "Thou shalt have no other gods before me," this does not deny

the existence of gods other than Jahve, but merely prohibits the

Israelites from worshipping any other deity. These other gods, however,

are the national gods of other peoples. Not only do these other tribal

gods exist alongside of Jahve, but the patriarchal sagas centre

about individuals that resemble now demonic and now divine beings.

The most remarkable of these figures is Jacob. In the account of his

personality there seem to be mingled legends of differing origin,

dating from a time probably far earlier than the developed Jahve cult.

The scene with his father-in-law, Laban, represents him as a sort of

crafty märchen-hero. He cheats Laban through his knowledge of magic,

gaining for himself the choicest of the young lambs by constructing

the watering troughs of half-peeled rods of wood--a striking example

of so-called imitative magic. On the other hand, Jacob is portrayed

as the hero who rolls from the well's mouth the stone which all the

servants of Laban could not move. And finally, when he wrestles with

Jahve by night on the bank of the stream and is not overcome until

the break of day, we are reminded either of a mighty Titan of divine

lineage, or possibly of the river demon who, according to ancient folk

belief, threatens to engulf every one who crosses the stream, be it

even a god. But what is true of the figures of the patriarchal sagas

applies also, in part, to Jahve himself. In the remarkable scene in

which Jahve visits Abraham near the terebinths of Mamre, he associates

with the patriarch as a _primus inter pares_. He allows Sarah to

bake him a cake and to wash his feet, and he then promises Abraham a

numerous posterity. He appears as a man among men, though, of course,

as one who is superior and who possesses magical power. Only gradually

does the god acquire the remoteness of the superhuman. Abraham is

later represented as falling down before him, and as scarcely daring

to approach him. Here also, however, the god still appears on earth.

Finally, when he speaks to Moses from the burning bush, only his voice

is perceptible. Thus, his sensuous form vanishes more and more, until

we come to the Jahve who uses the prophets as his mouthpiece and is

present to them only as a spiritual being. The purified Jahve cult,

therefore, was not an original folk-religion. It was the product

of priests and prophets, created by them out of a polytheism which

contained a rich profusion of demon conceptions, and which was never

entirely suppressed.

If an original monotheism is nowhere to be found, one might be tempted

to believe conversely, that _polytheism_ represents the starting-point

of all mythology. In fact, until very recently this was doubtless the

consensus of opinion among mythologists and historians of religion, and

the idea is still widely prevalent. For, if we hold in any way to the

view that the god-idea is underived, there is but one recourse, once

we abandon the idea of an original monotheism. The polytheistic theory

is, as a rule, connected with the further contention that god-ideas are

directly due to celestial phenomena. In substantiation of this view, it

is pointed out that, with the exception of the gods of the underworld,

the gods are usually supposed to dwell in the heavens. Accordingly, it

is particularly the great heavenly bodies, the sun and the moon, or

also the clouds and storms, to which--now to the one and now to the

other, according to their particular tendency--these theories trace

the origin of the gods. Celestial phenomena were present to man from

the beginning, and it is supposed that they aroused his reflection

from earliest times on. Those mythologists who champion the celestial

theory of the origin of religion, therefore, regard god-ideas as in

great measure the products of intellectual activity; these ideas are

supposed to represent a sort of primitive explanation of nature, though

an explanation, of course, which, in contrast to later science, is

fantastical, arbitrary, and under the control of emotion. During the

past century, moreover, this class of hypotheses has gradually placed

less emphasis on emotional as compared with rational factors. In the

first instance, it was the phenomena of storms, clouds, thunder, and

lightning that were thought to be the basis of deity belief; later,

the sun came to be regarded as the embodiment of the chief god; the

present tendency is to emphasize particularly the moon, whose changing

phases may easily give rise to various mythological ideas. Does not

the proverbial 'man in the moon' survive even to-day as a well-known

fragment of mythological conceptions of this sort? Similarly, the

crescent moon suggests a sword, a club, a boat, and many other things

which, though not conceived as gods, may at any rate be regarded as

their weapons or implements. The gods, we are told, then gradually

became distinguished from celestial objects and became independent

personal beings. The heroes of the hero saga are said to be degenerated

gods, as it were. When the myth attributes a divine parentage to the

hero, or allows him to enter the realm of the gods upon his death, this

is interpreted as indicative of a vague memory that the hero was once

himself a god. The lowest place in the scale of heroes is given to the

märchen-hero, though he also is supposed in the last analysis to have

originated as a celestial deity. The märchen itself is thus regarded

as the last stage in the decline of the myth, whose development is

held to have been initiated in the distant past by the celestial

myth. Accordingly, the most prevalent present-day tendency of nature

mythology is to assume an orderly development of a twofold sort. On

the one hand, the moon is regarded as having been the earliest object

of cult, followed by the sun and the stars. Later, it is supposed, a

distinction was made between gods and celestial objects, though the

former were still given many celestial attributes. On the other hand,

it is held that the gods were more and more anthropomorphized; their

celestial origin becoming gradually obscured, they were reduced to

heroes of various ranks, ranging from the heroic figures of the saga

to the heroes of children's märchen. These theories of an original

polytheism are rendered one-sided by the very fact that they are not

based upon any investigations whatsoever concerning the gods and myths

actually prevalent in folk-belief. They merely give an interpretation

of hypothetical conceptions which are supposed to be original, and it

is from these that the gods of actual belief are derived. Those who

proceed thus believe that the task of the psychologist of religion and

of the mythologist is completed with the demonstration that back of

every deity of myth there lurks a celestial phenomenon. It has been

maintained, for example, that every feature of the Biblical legend of

Paradise had its origin in ideas connected with the moon. Paradise

itself is the moon. The flaming sword of the angel who guards Paradise

is the crescent moon. Adam is either the half-moon or the familiar man

in the moon. Finally, Adam's rib, out of which Eve was created, is

again the crescent moon.

We need not raise the question whether such a mode of treatment ever

correctly interprets any actual mythological conception, or whether

it represents nothing other than the creation of the mythologist's

imagination. This much is clear, that it leaves out of consideration

precisely those mythological ideas and religious views that really

live in folk-belief. Doubtless we may assume that celestial

phenomena occasionally factored as assimilative elements in the

formation of mythological conceptions. But such conceptions cannot

possibly have been due exclusively to celestial factors, for the

very reason that, even where these are indubitably present, they are

inextricably interwoven with terrestrial elements derived from man's

immediate environment. Consider, for example, the figure of Helios in

Greek mythology. His very name so inevitably suggests the sun that

this connection remained unsevered throughout later development.

Nevertheless, the Greeks no more identified the god Helios with the sun

than they did Zeus himself with thunder and lightning. On the contrary,

these celestial phenomena were all only attributes of deities. The god

stands in the background, and, in the idea which man forms of him, the

image of human heroes plays no less a part than do the impressions

made by the shining heavenly bodies. These various interpretations

of nature mythology, therefore, overlook an important psychological

factor which is operative even in elemental experiences, but which

attains increasing significance in proportion as the psychical

processes become more complicated, and especially, therefore, in the

formation of mythological conceptions. I refer to the _assimilative

fusion of psychical elements of differing origins_. No external object

is perceived precisely as it is immediately given in reality. In the

experience of it, there are fused numerous elements whose source is

within ourselves; these partly reinforce and partly suppress the

given elements, thus producing what we call the 'perception' or the

'apprehension' of the object. The process of assimilation is greatly

influenced by the emotions that may be present. To the frightened

person, thunder and lightning suggest a god who hurls the lightning.

Such a person believes that he really sees this god. Either the

surrounding portions of the sky assume, in his imagination, the form

of an immense anthropomorphic being, or the thunder and lightning lead

his gaze to the canopy of clouds, hidden back of which he thinks that

he discovers, at least in vague outline, the thundering Zeus. To gain

some appreciation of the tremendous potency of assimilative processes,

one need but recall certain situations of ordinary life, such as are

experienced even apart from the influence of fear or ecstasy. Consider,

for example, the vivid impression that may be aroused by theatrical

scenery, which in reality consists of little more than suggestive

outlines. A particularly striking illustration is offered also by the

familiar puzzle pictures. In a picture of the foliage of a tree there

are sketched the outlines of a human face or of the head of a cat. An

uninitiated observer sees at first only the foliage. Not until his

attention has been directed to it does he suddenly discover the head.

Once, however, he has seen the latter, he cannot suppress it, try

as he may. Here again it is sometimes but a few indistinct outlines

that evoke the picture. The truth is that to a very great extent the

observer reads the head into the drawing through the activity of his

imagination. Now, it is but natural that such an assimilation should be

immeasurably enhanced under the influence of the emotions which excite

the mythological imagination. As is well known, Apollo, as well as

Helios, was represented by the image of the sun. This image, however,

was even less adequate to embody the idea of the Greek in the former

case than it was in the latter. The Greek was able, however, to imagine

the radiant sun as an attribute of the deity or as a manifestation of

his activity. He could see in the sun the shield or chariot of the god;

in the sun's rays, his missiles. Here again, however, he had in mind

the indefinite outlines of a powerful anthropomorphic god, who could

become independent of the natural phenomenon according as his name was

free from connection with it.

Thus, even those nature gods who might appear to be purely celestial

deities, as, for example, Helios, or the lightning-hurling Zeus, are

the products of a psychological assimilation of perceptual elements,

the most important of which have their ultimate source in terrestrial

life. Hence it is that, wherever the nature myth has reached its

complete development, the gods appear in _human form_. It is only

in an age still influenced by totemic ideas that zoömorphism occurs

alongside of anthropomorphism, or in combination with it. Of such

figures, the one which maintained itself longest--as is shown by the

history of ancient Egypt--was that of a human body with the head of

an animal. After this connection of an incipient deity cult with the

ideas of the preceding age had disappeared, the only remaining trace of

totemism was the fact that an animal was represented as accompanying

the deity. Eventually the animal became a mere symbol used by art in

its pictorial representations of the god. Doubtless the lamb, as a

symbol of Christ, may be regarded as a late survival of a stage of

deity belief which was still semi-totemic, and under the influence of

the sacred animals of older cultural religions. The expression 'sacred

animals,' moreover, points to the fact that the worship and veneration

paid to the god influenced also the attitude taken toward the animal.

But however far this development of the god-idea may have advanced,

the essential elements of the conception nevertheless remained of

_terrestrial_ origin. In the mythological assimilation-complexes that

gave rise to gods, celestial phenomena furnished but a part of the

elements. At best, they were the exciting stimuli; in many cases,

it is doubtful whether they exercised any influence whatsoever upon

the origin of mythological conceptions. Whether, for example, the

crescent moon has actually any connection with the flaming sword of

the angel of Paradise, or whether it suggested the club of Hercules,

this and much else is possible, but is incapable of demonstration. Even

where this influence upon mythological conceptions is incontestable,

celestial phenomena are subordinate to terrestrial factors, and in most

cases they have left no trace in consciousness. Proof of the dominant

importance of the terrestrial environment is not far to seek. Even the

celestial gods are conceived as men or as anthropomorphic beings, and

it is usually the earth that is regarded as the scene of their activity.

The theories maintaining the originality of the god-idea have more

and more been displaced by the contrary view, namely, that the gods

developed out of lower forms of mythological thought. Here there

are _two_ distinct interpretations. The first and the older is the

_ancestor theory_. This represents a particular form of animism, for

the soul of the ancestor is thought to become a god. The worship of the

god, therefore, is held to have been originally a reverence paid to

the ancestor. The main evidence for this view is found in the ancestor

worship which is actually being practised, among many peoples, even at

the present time. Prior to the Jahve religion, such a cult is supposed

to have prevailed even among the Israelites. Do not the patriarchs

Abraham, Isaac, and Jacob appear as the ancestors of the later tribes

of Israel? More significant still are the ancestor cults that have

prevailed in China and Japan since very ancient times. It should be

remembered, however, that these cults, wherever they occur, represent

but more or less prominent elements of more extensive mythological and

religious conceptions. Hence the ancestor theory, also, is an arbitrary

construction based on a presupposition which is in itself very

improbable, namely, that all mythology and religion must eventually be

traceable to a single source. The contention, for example, that a Zeus

or a Jahve was a human ancestor elevated into a deity is a completely

arbitrary supposition, lacking the confirmation of empirical facts.

Finally, there is another theory which, like the ancestor hypothesis,

seeks to derive gods, or at least the beings generally regarded as

gods, from more primitive mythological ideas. This theory, which was

developed by Hermann Usener, the most prominent student of the science

of religion among recent classical philologists, might perhaps be

referred to, in distinction from the soul and ancestor hypothesis,

as the _demon theory_ of the origin of gods. Usener agrees with the

rival hypothesis in assuming that the exalted celestial deities were

not the first of the higher beings who were feared or worshipped in

a cult, but that there were other more temporary gods. Though these

many temporary gods are described as demoniacal beings, they are

nevertheless regarded as gods of a primitive sort. Usener distinguishes

three stages in the development of gods. First, there was the 'god

of the moment.' Some phenomenon--such, for example, as a flash of

lightning or a clap of thunder--was felt to be divine. But, inasmuch

as the impression was vanishing, the mythological idea in question was

that of a 'god of the moment.' Then followed a second stage, in which a

demoniacal power was associated with a particular place. Following upon

these local gods came other gods, representing the guardian powers of

a tribe, a vocation, or some other social group. At the third stage of

development, the 'particular god' acquired a personal nature, and thus

finally became a god proper. The gods of this final stage are called by

Usener 'personal gods.'

Although this theory is doubtless in greater consonance with certain

general characteristics of myth development than is the ancestor

theory, we would urge, as one chief objection, the fact that its

god-concept unites mythological-religious elements of a very different

nature. In particular, the so-called 'god of a moment' is neither a

god, in the proper sense of the word, nor even a demon, but either a

particular impression arousing fear, or, on a higher plane, a single

manifestation of the activity of a demon or god. The Greeks referred

the flash of lightning to Zeus, the lightning-hurler. On a more

primitive level, the North American Indian sees in the lightning and

thunder the acts of a demon hidden in the clouds. In neither case are

the momentary phenomena identified with gods or demons themselves.

There is not a shadow of proof in the entire history of myth that

such acts or attributes as these, which were attributed to gods and

demons, ever existed as independent realities of even but a moment's

duration. The so-called 'particular gods,' on the other hand, are in

every respect demons and not gods. They are not personal in nature;

this also implies that they are not conceived as having a particular

form, for somehow the latter always leads to personalization. As a

matter of fact, these 'particular gods' are only objectified emotions

of fear and terror. Spirits, in the sense of magical agents of disease

conceived as invisible beings, or occasionally imaged in the form of

fantastic though ever-changing animal shapes, are not gods, but demons.

The same holds true of the multitude of nature demons that infest

field and forest and the vicinity of streams and gorges. Wherever myth

has given these spirits definite forms, they reveal no evidence of

traits such as would constitute them individual personalities. This,

of course, does not imply that there are no cases at all in which the

indeterminate traits ascribed to them are so combined as to result

in individual beings. When this occurs, however, we have already

transcended the stage of so-called 'particular gods.' Such beings as

the Greek Pan or the Germanic Hel must already be classed with gods

proper, even though they exhibit traits indicative of a demoniacal

past; for the narrowness of character which they manifest results

from the fact that they originated directly in a particular emotion.

Surely, therefore, the decisive emphasis in the case of deity ideas

in general must be placed on the attribute of personality. Gods are

personal beings, whose characters reflect the peculiarity of the people

who have created them. We see in the god Jahve of the Israelites the

clear-cut lines of the stern god who threatens the disobedient, but

who also rewards the faithful. More impressive still is the uniqueness

of personality in those cases in which a multiplicity of gods causes

the development of diverse and partly opposed characteristics in the

various gods. How individual are the gods of the Greeks with respect to

one another! Under the influence of poetry every god has here become a

clearly defined personality, whose individuality was fixed by formative

art. Thus, the error of the demon theory or, as it might also be

called, the three-stage theory, lies in the fact that it effaces the

essential distinctions between god and demon, retaining as the chief

characteristic of the multitude of resulting deity-conceptions only the

most external quality, that of _permanence_. For the 'god of a moment'

is characterized merely by his extreme transitoriness; the 'particular

god' is the 'god of a moment' become somewhat more enduring but not

yet possessed of sufficient stability to develop personal traits; the

true or personal god, finally, owes his distinctive attribute solely

to the permanence of his characteristics. Because of this confusion of

the concepts god and demon, there is lacking precisely that which is of

most importance for a psychological investigation--namely, an answer to

the question as to the _intrinsic_ marks that differentiate a god, in

the proper and only true sense of the word, from demons, ancestors, and

souls--in short, from all other creations of mythological thought.

Herewith we come to a question which will bring us closer to an

answer respecting the origin of gods. By what characteristic marks is

a mythological conception to be distinguished as that of an actual

god? The question might also be stated in a more concrete form. What

characteristics differentiate a god from a _demon_, who is not yet a

god because he lacks personality, and from a _hero_, who is regarded

by the age in which gods originate as somewhat approximating a god

but as nevertheless still a man? Or, briefly expressed, how does the

god differ from the demon and from the ideal man? The criteria thus

demanded are to be found in the traits that are universally ascribed

to gods wherever any complete deity mythology and a corresponding

religion have been developed. The god is always distinguished by three

characteristics. The first of these is that his _place of abode_ is

other than that of man. He may occasionally visit man on the earth,

but this occurs only rarely. So far as he himself is concerned, the

god lives in another world. In this sense, the idea of a 'beyond' is

closely bound up with that of gods. As a rule, the 'beyond' is the

heavenly world. But gods may dwell also in the regions of the air and

clouds between the heaven and the earth, on high mountains, on distant

islands, or, finally, under special circumstances, in the depths of the

earth. Secondly, the gods lead a _perfect_ life, free, on the whole,

from the evils and infirmities of earthly existence. A perfect life,

however, is always regarded as primarily a life without death and

without sickness. There then develops, though doubtless gradually, the

idea of something even more perfect than is involved in this merely

negative conception of immortal and painless existence. But at this

point ideas begin to differ, so that, in reality, the most universal

characteristics of the gods are that they know neither death nor

sickness. There are occasional exceptions, however, just as there are

with respect to the supra-mundane place of abode. The Greek as well as

the Germanic deity sagas represent the gods as possessing a particular

food and a particular drink, an idea connected with that of the

anthropomorphic nature of these gods. The Germanic gods, especially,

are described as capable of maintaining their perfect life only by

far exceeding the human measure of food and drink. This, however, is

but a subordinate feature. More important is the fact that if, by any

unfortunate circumstance, food and drink are lacking, the gods waste

away and meet the universal lot of human existence--death. But, even

apart from this connection, the Germanic sagas, or at any rate the

poetry inspired by them, tell of a decline of gods and of the rise

of a new divine hierarchy. It is not to be assumed, of course, that

this represents an original element in Germanic mythology. All records

of Germanic deity sagas, as we know, date from Christian times. Even

though the ancient skalds, as well as those historians who regarded

the saga as a bit of actual history, may have made every effort to

preserve for posterity the memory of this departed world, they could,

nevertheless, hardly have avoided mingling certain Christian ideas

with tradition. In view of the actual decline of the former gods, the

thought of a _Götterdämmerung_, in particular, must almost inevitably

have forced itself upon them. At any rate, inasmuch as this particular

conception represents the gods as subject to death, it contains an

element that is bound up with the anthropomorphic nature of the

divine beings, though this, of course, is irreconcilable with the

immortality originally conceded to them. We are thus brought to the

most important characteristic of gods, which is connected with this

very fact of their similarity to man. The god is a _personality_; he

has a specific personal character, which gives direction to his will

and leads him to send blessings or misfortunes to mortals. These purely

human characteristics, however, he possesses in an exalted and complete

measure. His will-acts, as well as the emotion from which they spring

and the insight by which they are guided, are superhuman in power.

But this power is not equivalent to omnipotence. This it cannot be by

very reason of the multiplicity of gods, each of whom has a particular

sphere of activity. Frequently, moreover, omnipotence is rendered

impossible by the idea--likewise carried over from the terrestrial to

the supermundane world--of a _destiny_, an impersonal power behind

the wills of gods no less than those of men. This is a conception

which deity beliefs inherit from the earlier demon beliefs. True,

polytheistic myth itself takes a step in the direction of transcending

this limitation when it here also transfers the conditions of the human

order to the divine world, and creates for the latter a monarch, a

supreme deity ruling over gods and men. But this very projection of

human relations into the divine realm prevents the chief deity from

being an unlimited ruler. On the one hand, he shares authority with a

deliberative assembly consisting of the remaining gods; on the other

hand, even behind him there lurk those demoniacal powers which, to a

certain extent, continued to assert themselves even after they had

been superseded by the gods. For here also it holds true that whatever

lives in folk-belief must retain a foundation in myth. The advent of

gods nowhere led to the complete banishment of demons. What occurred

was that, due to the power of the gods, certain of the demons likewise

developed into mighty forces of destiny, though continuing to remain

impersonal.

Thus, the god possesses three characteristics: a special

dwelling-place, immortality, and a superhuman, though at the same time

a human, personality. Leaving out of regard the tribute exacted even

of the gods by the last-mentioned of these characteristics, human

nature, we have before us the marks which distinguish the god both

from the demon and from the hero. The demon, however powerful he may

be, lacks the attribute of personality; the hero, as thoroughly human,

shares the universal lot of man as regards dwelling-place, length of

life, and liability to sickness and death. This places the god midway

between the demon and the hero, though, of course, by combining the

attributes of both, he is really exalted above them. The demon, in

the sense in which the Greeks employed this term, is a fundamental

element in the development of all mythologies. There can be no doubt,

moreover, that demons appeared far earlier than gods, if we exclude

from among the latter those indefinite and transitory personifications

of natural phenomena that have wrongly been classed with them--such

personifications as those of rocks, hills, clouds, stars, etc., which

were widely current even among peoples of nature. According to a belief

which has not entirely disappeared even among cultural peoples, the

soul leaves the corpse in the form of a demon; the wandering ghost is

a demon; demons dwell in the depths, in the neighbourhood of streams,

in solitary ravines, in forests and fields, upon and beneath the earth.

They are usually threatening, though sometimes beneficent, powers. In

every instance, however, they are absolutely impersonal embodiments

of the emotions of fear and hope, and it is these emotions, under

the assimilative influences of impressions of external nature, that

have given rise to them. Thus, demons are usually mundane beings, or,

at any rate, have their abode near the surface of the earth; with

few exceptions, the most distant realm which they occupy is that of

the clouds, particularly the dark rain and thunder clouds. True, the

heavenly bodies may manifest demoniacal powers, just as may also the

gods. As a rule, however, celestial phenomena are far from belonging

to the class of demons proper; they are too constant and too regular

in their changes and movements to be thus included. The activity of

demons relates exclusively to the welfare of man. Hence it is but

natural that demons should be primarily man's co-inhabitants on earth.

Usually invisible, they assume sensuously perceptible forms only in

the darkness of night, or, more especially, under the influence of

heightened emotions. Sometimes they are audible even when invisible.

Only in those narratives which tell of demoniacal beings that are not

immediately present do demons acquire fairly definite forms. Thus, even

soul beliefs--which the fear of the uncanny activity of the departed

soul transforms directly into a sort of demon belief--represent the

soul in the form of a bird, a snake, or of other specific 'soul

animals.' The demons of sickness lurking within the diseased body

are usually portrayed as fantastic animals, whose monstrous forms

reflect the terrible distress and the torturing pains of sickness.

These animals hinder respiration and bore into and lacerate the

intestines. Thus, they objectify both the pain of the sickness and the

fear aroused in the community by the behaviour of the sick person. No

less, however, can the impression of the desert, the dark forest, the

lonely ravine, or the terror of an approaching storm cause demons,

which are in first instance invisible, to assume definite shapes. Where

there is a more highly developed sense of nature, such as begins to

manifest itself in the heroic age, this objectification of impressions

occurs not only under the influence of strong excitement but also in

connection with the peaceful landscape. Here it gives rise to more

friendly beings, in the case of whom those characteristics, at least,

which made the original demon an object of terror, are moderated so

as to find expression in magic of a playful sort. This is the origin

of satyrs, sylphs and fauns, of gnomes, giants and dwarfs, elves,

fairies, etc., all of whom are debarred from personality by their very

multiplicity, while their generic character accurately reflects the

mood which led to their creation. The individualization of certain of

these beings is, in general, due to poetry. But even poetry does not

entirely succeed in freeing the demon from the generic character which

once for all represents its nature. Thus, it is the contrast between

genericalness and individual personality that differentiates the demon

from the god. Every gnome resembles every other, and all nymphs are

alike; hence these beings are generally referred to in the plural.

Their multiplicity is such that they are imaged in only indefinite

forms, except in cases where particularly strong emotions excite a

more lively imagination. Indeed, they may be present to consciousness

solely as a peculiar feeling associated with particular places or

occasions, such as is the case with the Lares, Manes, and Penates of

the Romans, and with the similar guardian spirits of the house and

the field common among many peoples. Some of these guardian spirits

are not very unlike the ancestors of cult. But this only indicates

that the ancestor worshipped in cult also approximates to the demon,

acquiring a more personal character only in occasional instances in

which memory has preserved with considerable faithfulness the traits of

a particularly illustrious ancestor. Here, then, we have the condition

underlying the origin of gods. Gods are universally the result of a

_union of demoniacal and heroic elements_. The god is at once demon

and hero; since, however, the demoniacal element in him magnifies his

heroic attributes into the superhuman, and since the personal character

which he borrows from the hero supersedes the indefinite and impersonal

nature of the demon, he is exalted above them both: the god himself is

neither hero nor demon, because he combines in himself the attributes

of both, in an ideally magnified form.

The resemblance of demons to gods is due primarily to the magic power

which they exert. The demons of sickness torture and destroy men; the

cloud demons bring rain and blessing to the fields, or plot ruin when

rain does not relieve the drought of the burning sun. By means of

magic incantations and ceremonies, these demons can be won over, or,

when angry, reconciled. Their own activity, therefore, is magical,

and, as regards the effects that it produces, superhuman. In their

fleeting and impersonal character, however, they are subhuman. Since

the dominant emotions that call them into being are fear and terror,

they are generally regarded as enemies not only of man but even of the

gods. The struggle between gods and nature-demons is a recurrent theme

in the cosmogonies of all cultural peoples. This hostility between

demons and gods is connected with the contrast in the feelings evoked

by darkness and radiant brightness. Hence the mighty nature-demons are,

as a rule, consigned to gloomy abysses, from which they rise to the sky

only occasionally, as, for example, in the case of thunder-clouds. The

abode of the gods, however, is in the bright celestial realms, and they

themselves are radiant beings upon whose activity the harmonious order

of nature and the happiness of mankind are dependent. In the strife

which the demons carry on with gods, they occasionally develop into

counter-gods, as occurred in the case of the Persian Ahriman and the

Jewish-Christian Satan. Yet it is significant of the almost insuperable

lack of personality characteristic of the demon, that even these

counter-gods of darkness and evil are wanting in _one trait_ which is

indispensable for a completely developed personality--namely, changes

in motives and the capacity to determine at will the nature of these

changes. Herein, again, is reflected the fact that the demon has but a

_single_ source--namely, fear.

Very different from the relation of the god to the demon is his

relation to the hero. The hero, to a greater extent even than the god,

is the complete opposite of the demon. For the hero is an idealized

man. He is subject to all human destinies, to sickness and death,

to afflictions of the soul, and to violent passions. Yet in all

these instances the experiences are of a more exalted nature than

in the case of ordinary human life. The life as well as the death

of the hero are of wide import; the effects of his deeds extend to

distant lands and ages. But it is just because the hero is the ideal

man himself that he possesses all the more markedly the attribute

which the demon lacks--namely, _personality_. This, of course, does

not prevent his character from exhibiting generic differences and

antitheses. But herein also the hero is only the idealized counterpart

of man, for, despite all its uniqueness and individuality, man's

character usually conforms to certain types. Thus, legend introduces

the strong, all-conquering hero, and, in contrast with him, the hero

who is resourceful and overcomes his enemies through subtle cunning.

It tells of the aged man, superior in wisdom and experience, and also

of him who, in the unbroken strength of youth and with stormy passion,

overthrows all opponents. It further portrays the hero who plots evil,

but who is nevertheless characterized by a sharply defined personality.

When we survey these various heroic figures in both their generic and

their individual aspects and compare them with the god-personalities,

we are struck by the fact that the god was not created directly in

the image of a man, but rather in that of the hero, man idealized. It

is the hero who gives to the gods those very characteristics which

the demon lacks from the outset. Of these, the most important are

personality, self-consciousness, and a will controlled by diverse

and frequently conflicting motives. This multiplicity of motives

has a close connection with the multiplicity of gods. Polytheism is

not an accidental feature which may or may not accompany the belief

in gods; it is a necessary transitional stage in the development of

the god-idea. Folk-belief, which never frees itself entirely from

mythology, always retains a plurality of divine beings. Hence true

monotheism represents a philosophical development of the god-idea.

Though this development was not without influence on the theological

speculation which was dominated by traditional doctrines, it was never

able to uproot the polytheistic tendency involved in the god-idea

from the very beginning. There are two sources from which this

tendency springs. Of these, one is external and, therefore, though

of great importance for the beginnings of religious development, is

transitory. It consists in the influence exerted by the multiplicity

of natural phenomena, through the nature myth, upon the number of

gods. More important and of more permanent significance is the second

or _internal_ motive, namely, the fact that the psychical needs that

come to expression in the demand for gods are numerous. There cannot

be a single god-ideal any more than a single type of hero. On the

contrary, as heroes exhibit the diversity of human effort on an exalted

plane, so, in turn, does the realm of gods represent, on a still

higher level, the world of heroes. This advance beyond the hero-ideal

becomes possible to the mythological imagination only because the

very endeavour to exalt the hero above the human itself brought the

hero-idea, at the very time of its origin, into connection with the

demon-idea. For the demon is a superhuman being, magic-working and

unpredictable, affecting in mysterious ways the course of nature and of

human destiny. But it lacks the familiar human traits which make the

hero an object not only of fear but also of admiration and love. Thus,

the fusion of hero and demon results in the final and the greatest of

mythological creations, the conception which represents the birth of

religion in the proper and ultimately only true sense of the word. I

refer to _the rise of gods_.

The god-idea, accordingly, is the product of _two_ component factors.

One of these, the demoniacal, has had a long history, extending back

to the beginnings of mythological thought; the other, the heroic,

begins to assert itself the very moment that the figure of the hero

appears. This implies that god-ideas are neither of sudden origin

nor unchangeable, but that they undergo a gradual development. The

direction of development is determined by the relation which its two

component factors sustain to each other. The earliest god-ideas are

predominantly demoniacal in nature--personal characteristics are few,

while magical features are all the more pronounced. Then the heroic

element comes to the fore, until it finally acquires such dominance

that even the magical power of the god appears to be a result of his

heroic might, rather than a survival of the demoniacal nature which

was his from the very beginning. In connection with this change, it

is significant to note that, as the god loses his original demoniacal

character, he comes to be attended by subservient beings who remain,

in every respect, demons. On the one hand, these beings execute the

divine commands; on the other hand, however--as an echo, one might say,

of the age of demons which precedes that of gods--they are superior

even to the gods in that they possess magical powers. These beings

must be regarded as survivals of the age of demons. Between them and

the gods proper there are intermediate beings, just as there are

between heroes and gods, those of the latter sort being exemplified

particularly by such heroes as have been exalted into deities. Inasmuch

as all the intermediate forms that arise in the course of this

transition continue in existence even up to the culmination of the

development, the gods constantly become more numerous. Side by side

with the gods, demons maintain their sway. At times, they contend with

the gods; in other instances, they are subservient to them; again,

as in the earliest periods of mythological thought, they are without

any knowledge whatsoever of the existence of gods. The hero also is

invariably associated with the god. With the decline of the heroic age,

therefore, the realm of gods also disappears. Though the religious

developments that ensue have their origin in deity beliefs, they

nevertheless discard the original nucleus of these beliefs--namely, the

gods themselves--or, at any rate, they retain gods only in a greatly

altered form.

That gods belong essentially to the heroic age appears also in the fact

that the divine realm mirrors in detail the relations of political

society developed subsequently to the beginning of the heroic age.

The world of gods likewise forms a divine _State_. It is at most at

an early period that the tribal gods of various peoples betray the

influence of the ancient tribal organization that preceded the State.

In the supremacy of a single god, however, the idea of rulership, which

is basal to the State, is transferred also to the divine realm. This is

true whether the ruling deity exercises command over a subservient host

of demons and subordinate gods, or whether he has at his side a number

of independent gods, who represent, in part, an advisory council, such

as is found associated with the earthly ruler, and, in part, since the

different gods possess diverse powers, a sort of celestial officialdom.

Finally, the multiplicity of independent States is mirrored in the

multiplicity of the independent realms ruled over by the gods. The

differentiation, in this latter case, corresponds with the main

directions of human interest. The development is influenced, moreover,

by those natural phenomena that have long factored in the capacity of

assimilative elements. Over against the bright celestial gods are the

subterranean gods who dwell in the gloomy depths. For the inhabitants

of the sea-coast and of islands, furthermore, there is a ruler of the

sea. The importance of the god of the sea, however, is subordinate to

that of the rulers of the celestial and the nether worlds, so that

those over whom he holds sway never develop into clearly defined

personalities, but always retain more of a demoniacal character. All

the more important, therefore, are the contrasts between the celestial

and the nether worlds, as the two realms which include the real destiny

of man. At death, man must enter the nether world; to rise from the

gloom of this realm of the dead to the heaven and immortality of the

celestial gods becomes his longing. Thus, deity beliefs enter into

reciprocal relations with soul conceptions. The further stages of

this development carry us far beyond the heroic age, and reflect the

influence of a diversity of motives. The discussion of this point will

occupy our attention in later pages.

[1] Concerning this alleged monotheism among primitive peoples, cf.

supra, pp.78 f.

12. THE HERO SAGA.