CHAPTER VI.

SAVAGE PENAL LAWS.

The interest of savage laws—Stage in which the redress of wrongs is a merely personal matter—Tendency of offences to be regarded as matters of family or tribal interest—Growth of the conception of crime as an offence against the tribe, promoted by the custom of submitting disputes to the judgment of chiefs, and marked by customs, which, while making such chiefs judges, leave the punishment of the criminal to the injured party—Such customs found in America, Africa, Samoa, Afghanistan—Tendency of penal laws to become more cruel—Primitive punishments not gratuitously cruel—Savage laws not always arbitrary nor uncertain—Force of precedents in Caffre law—Regularity in legal procedure—Curious notions of equity—The ordeal in savage law, not an appeal to the judgment of God, but an invention of priestcraft for the detection of guilt—Comparison of some ordeals—Their utility for the discovery of guilt—Death a frequent result of concealing real or fancied guilt—Oaths a later development of the ordeal—The English judicial oath compared with that in vogue in Samoa—Origin of the supposed virtue in touching or kissing the thing sworn by—Invisible connection between the thing touched and the calamity invoked in touching it 162-187