Chapter 7

LAW

The general plan of this little book being to start from the influences that determine man's destiny in a physical, external, necessary sort of way, and to work up gradually to the spiritual, internal, voluntary factors in human nature--that strange "compound of clay and flame"--it seems advisable to consider law before religion, and religion before morality, whether in its collective or individual aspect, for the following reason. There is more sheer constraint to be discerned in law than in religion, whilst religion, in the historical sense which identifies it with organized cult, is more coercive in its mode of regulating life than the moral reason, which compels by force of persuasion.

To one who lives under civilized conditions the phrase "the strong arm of the law" inevitably suggests the policeman. Apart from policemen, magistrates, and the soldiers who in the last resort must be called out to enforce the decrees of the community, it might appear that law could not exist. And certainly it is hard to admit that what is known as mob-law is any law at all. For historical purposes, however, we must be prepared to use the expression "law" rather widely. We must be ready to say that there is law wherever there is punishment on the part of a human society, whether acting in the mass, or through its representatives. Punishment means the infliction of pain on one who is judged to have broken a social rule. Conversely, then, a law is any social rule to the infringement of which punishment is by usage attached. So long as it is recognized that a man breaks a social rule at the risk of pain, and that it is the business of everybody, or of somebody armed with the common authority, to make that risk a reality for the offender, there is law within the meaning of the term as it exists for anthropology.

Punishment, however, is by its very nature an exceptional measure. It is only because the majority are content to follow a social rule, that law and punishment are possible at all. If, again, every one habitually obeys the social rules, law ceases to exist, because it is unnecessary. Now, one reason why it is hard to find any law in primitive society is because, in a general way of speaking, no one dreams of breaking the social rules.

Custom is king, nay tyrant, in primitive society. When Captain Cook asked the chiefs of Tahiti why they ate apart and alone, they simply replied, "Because it is right." And so it always is with the ruder peoples. "'Tis the custom, and there's an end on't" is their notion of a sufficient reason in politics and ethics alike. Now that way lies a rigid conservatism. In the chapter on morality we shall try to discover its inner springs, its psychological conditions. For the present, we may be content to regard custom from the outside, as the social habit of conserving all traditional practices for their own sake and regardless of consequences. Of course, changes are bound to occur, and do occur. But they are not supposed to occur. In theory, the social rules of primitive society are like "the law of the Medes and Persians which altereth not."

This absolute respect for custom has its good and its bad sides. On the one hand, it supplies the element of discipline; without which any society is bound soon to fall to pieces. We are apt to think of the savage as a freakish creature, all moods--at one moment a friend, at the next moment a fiend. So he might be, if it were not for the social drill imposed by his customs. So he is, if you destroy his customs, and expect him nevertheless to behave as an educated and reasonable being. Given, then, a primitive society in a healthy and uncontaminated condition, its members will invariably be found to be on the average more law-abiding, as judged from the standpoint of their own law, than is the case any civilized state.

But now we come to the bad side of custom. Its conserving influence extends to all traditional practices, however unreasonable or perverted. In that amber any fly is apt to be enclosed. Hence the whimsicalities of savage custom. In _Primitive Culture_ Dr. Tylor tells a good story about the Dyaks of Borneo. The white man's way of chopping down a tree by notching out V-shaped cuts was not according to Dyak custom. Hence, any Dyak caught imitating the European fashion was punished by a fine. And yet so well aware were they that this method was an improvement on their own that, when they could trust each other not to tell, they would surreptitiously use it. These same Dyaks, it may be added, are, according to Mr. A.R. Wallace, the best of observers, "among the most pleasing of savages." They are good-natured, mild, and by no means bloodthirsty in the ordinary relations of life. Yet they are well known to be addicted to the horrid practice of head-hunting. "It was a custom," Mr. Wallace explains, "and as a custom was observed, but it did not imply any extraordinary barbarism or moral delinquency."

The drawback, then, to a reign of pure custom is this: Meaningless injunctions abound, since the value of a traditional practice does not depend on its consequences, but simply on the fact that it is the practice; and this element of irrationality is enough to perplex, till it utterly confounds, the mind capable of rising above routine and reflecting on the true aims and ends of the social life. How to break through "the cake of custom," as Bagehot has called it, is the hardest lesson that humanity has ever had to learn. Customs have often been broken up by the clashing of different societies; but in that case they merely crystallize again into new shapes. But to break through custom by the sheer force of reflection, and so to make rational progress possible, was the intellectual feat of one people, the ancient Greeks; and it is at least highly doubtful if, without their leadership, a progressive civilization would have existed to-day.

It may be added in parenthesis that customs may linger on indefinitely, after losing, through one cause or another, their place amongst the vital interests of the community. They are, or at any rate seem, harmless; their function is spent. Hence, whilst perhaps the humbler folk still take them more or less seriously, the leaders of society are not at pains to suppress them. Nor would they always find it easy to do so. Something of the primeval man lurks in us all; and these "survivals," as they are termed by the anthropologist, may often in large part correspond to impulses that are by no means dead in us, but rather sleep; and are hence liable to be reawakened, if the environment happens to supply the appropriate stimulus. Witness the fact that survivals, especially when the whirligig of social change brings the uneducated temporarily to the fore, have a way of blossoming forth into revivals; and the state may in consequence have to undergo something equivalent to an operation for appendicitis. The study of so-called survivals, therefore, is a most important branch of anthropology, which cannot unfortunately in this hasty sketch be given its due. It would seem to coincide with the central interest of what is known as folk-lore. Folk-lore, however, tends to broaden out till it becomes almost indistinguishable from general anthropology. There are at least two reasons for this. Firstly, the survivals of custom amongst advanced nations, such as the ancient Greeks or the modern British, are to be interpreted mainly by comparison with the similar institutions still flourishing amongst ruder peoples. Secondly, all these ruder peoples themselves, without exception, have their survivals too. Their customs fall as it were into two layers. On top is the live part of the fire. Underneath are smouldering ashes, which, though dying out on the whole, are yet liable here and there to rekindle into flame.

So much for custom as something on the face of it distinct from law, inasmuch as it seems to dispense with punishment. It remains to note, however, that brute force lurks behind custom, in the form of what Bagehot has called "the persecuting tendency." Just a boy at school who happens to offend against the unwritten code has his life made a burden by the rest of his mates, so in the primitive community the fear of a rough handling causes "I must not" to wait upon "I dare not." One has only to read Mr. Andrew Lang's instructive story of the fate of "Why Why, the first Radical," to realize how amongst savages--and is it so very different amongst ourselves?--it pays much better to be respectable than to play the moral hero.

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Let us pass on to examine the beginnings of punitive law. After all, even under the sway of custom, casual outbreaks are liable to occur. Some one's passions will prove too much for him, and there will be an accident. What happens then in the primitive society? Let us first consider one of the very unorganized communities at the bottom of the evolutionary scale; as, for example, the little Negritos of the Andaman Islands. Their justice, explains Mr. Man, in his excellent account of these people, is administered by the simple method of allowing the aggrieved party to take the law into his own hands. This he usually does by flinging a burning faggot at the offender, or by discharging an arrow at him, though more frequently near him. Meanwhile all others who may be present are apt to beat a speedy retreat, carrying off as much of their property as their haste will allow, and remaining hid in the jungle until sufficient time has elapsed for the quarrel to have blown over. Sometimes, however, friends interpose, and seek to deprive the disputants of their weapons. Should, however, one of them kill the other, nothing is necessarily said or done to him by the rest. Yet conscience makes cowards of us all; so that the murderer, from prudential motives, will not uncommonly absent himself until he judges that the indignation of the victim's friends has sufficiently abated.

Now here we seem to find want of social structure and want of law going together as cause and effect. The "friends" of whom we hear need to be organized into a police force. If we now turn to totemic society, with its elaborate clan-system, it is quite another story. Blood-revenge ranks amongst the foremost of the clansman's social obligations. Over the whole world it stands out by itself as the type of all that law means for the savage. Within the clan, indeed, the maxim of blood for blood does not hold; though there may be another kind of punitive law put into force by the totemites against an erring brother, as, for instance, if they slay one of their number for disregarding the exogamic rule and consorting with a woman who is all-one-flesh with him. But, between clans of the same tribe, the system of blood-revenge requires strict reprisals, according to the principle that some one on the other side, though not necessarily the actual murderer, must die the death. This is known as the principle of collective responsibility; and one of the most interesting problems relating to the evolution of early law is to work out how individual responsibility gradually develops out of collective, until at length, even as each man does, so likewise he suffers.

The collective method of settling one's grievances is natural enough, when men are united into groups bound together by the closest of sentimental ties, and on the other hand there is no central and impartial authority to arbitrate between the parties. One of our crew has been killed by one of your crew. So a stand-up fight takes place. Of course we should like to get at the right man if we could; but, failing that, we are out to kill some one in return, just to teach your crew a lesson. Comparatively early in the day, however, it strikes the savage mind that there are degrees of responsibility. For instance, some one has to call the avenging party together, and to lead it. He will tend to be a real blood-relation, son, father, or brother. Thus he stands out as champion, whilst the rest are in the position of mere seconds. Correspondingly, the other side will tend to thrust forward the actual offender into the office of counter-champion. There is direct evidence to show that, amongst Australians, Eskimo, and so on, whole groups at one time met in battle, but later on were represented by chosen individuals, in the persons of those who were principals in the affair. Thus we arrive at the duel. The transition is seen in such a custom as that of the Port Lincoln black-fellows. The brother of the murdered man must engage the murderer; but any one on either side who might care to join in the fray was at liberty to do so. Hence it is but a step to the formal duel, as found, for instance, amongst the Apaches of North America.

Now the legal duel is an advance on the collective bear-fight, if only because it brings home to the individual perpetrator of the crime that he will have to answer for it. Cranz, the great authority on the Eskimo of Greenland, naively remarks that a Greenlander dare not murder or otherwise wrong another, since it might possibly cost him the life of his best friend. Did the Greenlander know that it would probably cost him his own life, his sense of responsibility, we may surmise, might be somewhat quickened. On the other hand, duelling is not a satisfactory way of redressing the balance, since it merely gives the powerful bully an opportunity of adding a second murder to the first. Hence the ordeal marks an advance in legal evolution. A good many Australian peoples, for example, have reached the stage of requiring the murderer to submit to a shower of spears or boomerangs at the hands of the aggrieved group, on the mutual understanding that the blood-revenge ends here.

Luckily, however, for the murderer, it often takes time to bring him to book; and angry passions are apt in the meanwhile to subside. The ruder savages are not so bloodthirsty as we are apt to imagine. War has evolved like everything else; and with it has evolved the man who likes fighting for its own sake. So, in place of a life for a life, compensation--"pacation," as it is technically termed--comes to be recognized as a reasonable _quid pro quo_. Constantly we find custom at the half-way stage. If the murderer is caught soon, he is killed; but if he can stave off the day of justice, he escapes with a fine. When private property has developed, the system of blood-fines becomes most elaborate. Amongst the Iroquois the manslayer must redeem himself from death by means of no less than sixty presents to the injured kin; one to draw the axe out of the wound, a second to wipe the blood away, a third to restore peace to the land, and so forth. According to the collective principle, the clansmen on one side share the price of atonement, and on the other side must tax themselves in order to make it up. Shares are on a scale proportionate to degrees of relationship. Or, again, further nice calculations are required, if it is sought to adjust the gross amount of the payment to the degree of guilt. Hence it is not surprising that, when a more or less barbarous people, such as the Anglo-Saxons, came to require a written law, it should be almost entirely taken up by regulations about blood-fines, that had become too complicated for the people any longer to keep in their heads.

So far we have been considering the law of blood-revenge as purely an affair between the clans concerned; the rest of the tribal public keeping aloof, very much in the style of the Andamanese bystanders who retire into the jungle when there is a prospect of a row. But with the development of a central authority, whether in the shape of the rule of many or of one, the public control of the blood-feud begins to assert itself; for the good reason that endless vendetta is a dissolving force, which the larger and more stable type of society cannot afford to tolerate if it is to survive. The following are a few instances illustrative of the transition from private to public jurisdiction. In North America, Africa, and elsewhere, we find the chief or chiefs pronouncing sentence, but the clan or family left to carry it out as best they can. Again, the kin may be entrusted with the function of punishment, but obliged to carry it out in the way prescribed by the authorities; as, for instance, in Abyssinia, where the nearest relation executes the manslayer in the presence of the king, using exactly the same kind of weapon as that with which the murder was committed. Or the right of the kin to punish dwindles to a mere form. Thus in Afghanistan the elders make a show of handing over the criminal to his accusers, who must, however, comply strictly with the wishes of the assembly; whilst in Samoa the offender was bound and deposited before the family "as if to signify that he lay at their mercy," and the chief saw to the rest. Finally, the state, in the person of its executive officers, both convicts and executes.

When the state is represented by a single ruler, crime tends to become an offence against "the king's peace"--or, in the language of Roman law, against his "majesty." Henceforward, the easy-going system of getting off with a fine is at an end, and murder is punished with the utmost sternness. In such a state as Dahomey, in the old days of independence, there may have been a good deal of barbarity displayed in the administration of justice, but at any rate human life was no less effectively protected by the law than it was, say, in mediaeval Europe.

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The evolution of the punishment of murder affords the typical instance of the development of a legal sanction in primitive society. Other forms, however, of the forcible repression of wrong-doing deserve a more or less passing notice.

Adultery is, even amongst the ruder peoples, a transgression that is reckoned only a degree less grave than manslaughter; especially as manslaughter is a usual consequence of it, quarrels about women constituting one of the chief sources of trouble in the savage world. With a single interesting exception, the stages in the development of the law against adultery are exactly the same as in the case already examined. Whole kins fight about it. Then duelling is substituted. Then duelling gives way to the ordeal. Then, after the penalty has long wavered between death and a fine, fines become the rule, so long as the kins are allowed to settle the matter. If, however, the community comes to take cognizance of the offence, severer measures ensue. The one noticeable difference in the two developments is the following. Whereas murder is an offence against the chief's "majesty," and as such a criminal offence, adultery, like theft, with which primitive law is wont to associate it as an offence against property, tends to remain a purely civil affair. Kafir law, for example, according to Maclean, draws this distinction very clearly.

It remains to add as regards adultery that, so far, we have only been considering the punishment that falls on the guilty man. The guilty woman's fate is a matter relating to a distinct department of primitive law. Family jurisdiction, as we find it, for instance, in an advanced community such as ancient Rome, meant the right of the _pater familias_, the head of the house, to subject his _familia_, or household, which included his wife, his children (up to a certain age), and his slaves, to such domestic discipline as he saw fit. Such family jurisdiction was more or less completely independent of state jurisdiction; and, indeed, has remained so in Europe until comparatively recent times.

What light, then, does the study of primitive society throw on the first beginnings of family law as administered by the house-father? To answer this question at all adequately would involve the writing of many pages on the evolution of the family. For our present purpose, all turns on the distinction between the matripotestal and the patripotestal family. If the man and the woman were left to fight it out alone, the latter, despite the "shrewish sanction" that she possesses in her tongue, must inevitably bow to the principle that might is right. But, as long as marriage is matrilocal--that is to say, allows the wife to remain at home amongst male defenders of her own clan--she can safely lord it over her stranger husband; and there can scarcely be adultery on her part, since she can always obtain divorce by simply saying, Go! Things grow more complicated when the wife lives amongst her husband's people, and, nevertheless, the system of counting descent favours her side of the family and not his. Does the mere fact that descent is matrilineal tend to imply on the whole that the mother's kin take a more active interest in her, and are more effective in protecting her from hurt, whether undeserved or deserved? It is no easy problem to settle. Dr. Steinmetz, however, in his important work on _The Evolution of Punishment_ (in German), seeks to show that under mother-right, in all its forms taken together, the adulteress is more likely to escape with a light penalty, or with none at all, than under father-right. Whatever be the value of the statistical method that he employs, at any rate it makes out the death penalty to be inflicted in only a third of his cases under the former system, but in about half under the latter.

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We must be content with a mere glance at other types of wrong-doing which, whilst sooner or later recognized by the law of the community, affect its members in their individual capacity. Theft and slander are cases in point.

Amongst the ruder savages there cannot be much stealing, because there is next to nothing to steal. Nevertheless, groups are apt to quarrel over hunting and fishing claims; whilst the division of the spoils of the chase may give rise to disputes, which call for the interposition of leading men. We even occasionally find amongst Australians the formal duel employed to decide cases of the violation of property-rights. Not, however, until the arts of life have advanced, and wealth has created the two classes of "haves" and "have-nots," does theft become an offence of the first magnitude, which the central authority punishes with corresponding severity.

As regards slander, though it might seem a slight matter, it must be remembered that the savage cannot stand up for a moment again an adverse public opinion; so that to rob him of his good name is to take away all that makes life worth living. To shout out, Long-nose! Sunken-eyes! or Skin-and-bone! usually leads to a fight in Andamanese circles, as Mr. Man informs us. Nor, again, is it conducive to peace in Australian society to sing as follows about the staying-powers of a fellow-tribesman temporarily overtaken by European liquor: "Spirit like emu--as a whirlwind--pursues--lays violent hold on travelling--uncle of mine (this being particularly derisive)--tired out with fatigue--throws himself down helpless." Amongst more advanced peoples, therefore, slander and abuse are sternly checked. They constitute a ground for a civil action in Kafir law; whilst we even hear of an African tribe, the Ba-Ngindo, who rejoice in the special institution of a peace-maker, whose business is to compose troubles arising from this vexatious source.

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Let us now turn to another class of offences, such as, from the first, are regarded as so prejudicial to the public interest that the community as a whole must forcibly put them down.

Cases of what may be termed military discipline fall under this head. Even when the functions of the commander are undeveloped, and war is still "an affair of armed mobs," shirking--a form of crime which, to do justice to primitive society, is rare--is promptly and effectively resented by the host. Amongst American tribes the coward's arms are taken away from him; he is made to eat with the dogs; or perhaps a shower of arrows causes him to "run the gauntlet." The traitor, on the other hand, is inevitably slain without mercy--tied to a tree and shot, or, it may be, literally hacked to pieces. Naturally, with the evolution of war, these spontaneous outbursts of wrath and disgust give way to a more formal system of penalties. To trace out this development fully, however, would entail a lengthy disquisition on the growth of kingship in one of its most important aspects. If constant fighting turns the tribe into something like a standing army, the position of war-lord, as, for instance, amongst the Zulus, is bound to become both permanent and of all-embracing authority. There is, however, another side to the history of kingship, as the following considerations will help to make clear.

Public safety is construed by the ruder type of man not so much in terms of freedom from physical danger--unless such a danger, the onset of another tribe, for instance, is actually imminent--as in terms of freedom from spiritual, or mystic, danger. The fear of ill-luck, in other words, is the bogy that haunts him night and day. Hence his life is enmeshed, as Dr. Frazer puts it, in a network of taboos. A taboo is anything that one must not do lest ill-luck befall. And ill-luck is catching, like an infectious disease. If my next-door neighbour breaks a taboo, and brings down a visitation on himself, depend upon it some of its unpleasant consequences will be passed on to me and mine. Hence, if some one has committed an act that is not merely a crime but a sin, it is every one's concern to wipe out that sin; which is usually done by wiping out the sinner. Mobbish feeling always inclines to violence. In the mob, as a French psychologist has said, ideas neutralize each other, but emotions aggrandize each other. Now war-feeling is a mobbish experience that, I daresay, some of my readers have tasted; and we have seen how it leads the unorganized levy of a savage tribe to make short work of the coward and traitor. But war-fever is a mild variety of mobbish experience as compared with panic in any form, and with superstitious panic most of all. Being attacked in the dark, as it were, causes the strongest to lose their heads.

Hence it is not hard to understand how it comes about that the violator of a taboo is the central object of communal vengeance in primitive society. The most striking instance of such a taboo-breaker is the man or woman who disregards the prohibition against marriage within the kin--in other words, violates the law of exogamy. To be thus guilty of incest is to incite in the community at large a horror which, venting itself in what Bagehot calls a "wild spasm of wild justice," involves certain death for the offender. To interfere with a grave, to pry into forbidden mysteries, to eat forbidden meats, and so on, are further examples of transgressions liable to be thus punished.

Falling under the same general category of sin, though distinct from the violation of taboo, is witchcraft. This consists in trafficking, or at any rate in being supposed to traffic, with powers of evil for sinister and anti-social ends. We have only to remember how England, in the seventeenth century, could work itself up into a frenzy on this account to realize how, in an African society even of the better sort, the "smelling-out" and destroying of a witch may easily become a general panacea for quieting the public nerves.

When crimes and sins, affairs of state and affairs of church thus overlap and commingle in primitive jurisprudence, it is no wonder if the functions of those who administer the law should tend to display a similar fusion of aspects. The chief, or king, has a "divine right," and is himself in one or another sense divine, even whilst he takes the lead in regard to all such matters as are primarily secular. The earliest written codes, such as the Mosaic Books of the Law, with their strange medley of injunctions concerning things profane and sacred, accurately reflect the politico-religious character of all primitive authority.

Indeed, it is only by an effort of abstraction that the present chapter has been confined to the subject of law, as distinguished from the subject of the following chapter, namely, religion. Any crime, as notably murder, and even under certain circumstances theft, is apt to be viewed by the ruder peoples either as a violation of taboo, or as some closely related form of sin. Nay, within the limits of the clan, legal punishment can scarcely be said to be in theory possible; the sacredness of the blood-tie lending to any chastisement that may be inflicted on an erring kinsman the purely religious complexion of a sacrifice, an act of excommunication, a penance, or what not. Thus almost insensibly we are led on to the subject of religion from the study of the legal sanction; this very term "sanction," which is derived from Roman law, pointing in the same direction, since it originally stood for the curse which was appended in order to secure the inviolability of a legal enactment.