Enkidoodle

There has been much discussion about the relation between virtue and duty. It has been said that "they are co-extensive, the former describing conduct by the quality of the agent's mind, the latter by the nature of the act performed";[29] that they express the same ideal, virtue subjectively, duty objectively;[30] or that virtue, in its proper sense, is "the quality of character that fits for the discharge of duty," and that it "only lives in the performance of duty."[31] At the same time it is admitted that "the distinctive mark of virtue seems to lie in what is beyond duty," and that "though every virtue is a duty, and every duty a virtue, there are certain actions to which it is more natural to apply the term virtuous."[32] Prof. Sidgwick, again, in his elaborate chapter on 'Virtue and Duty,' remarks that he has "thought it best to employ the terms so that virtuous conduct may include the performance of duty as well as whatever good actions may be commonly thought to go beyond duty; though recognising that virtue in its ordinary use is most conspicuously manifested in the latter."[33]

[Footnote 29: Alexander, _op. cit._ p. 244.]

[Footnote 30: Grote, _Treatise on the Moral Ideals_, p. 22. _Cf._ Seth, _Study of Ethical Principles_, p. 239.]

[Footnote 31: Muirhead, _Elements of Ethics_, p. 190 n.*]

[Footnote 32: Alexander, _op. cit._ p. 243 _sq._]

[Footnote 33: Sidgwick, _op. cit._ p. 221.]

It can be no matter of surprise that those who regard the notion of "duty" as incapable of being analysed, or {150} who fail to recognise its true import, are embarrassed by its relation to virtue. We do not call it a virtue if a man habitually abstains from killing or robbing, or pays his debts, or performs a great number of other duties. We do call chastity and temperance and justice virtues, although we regard it as obligatory on a man to be chaste, temperate, just. We also call hospitality, generosity, and charity virtues in cases where they go beyond the strict limits of duty. "The relation of virtue and duty is complicated," says Professor Alexander.[34] "In its common use each term seems to include something excluded from the other," observes Professor Sidgwick.[35] But, indeed, the relation is not complicated, for there is no other intrinsic relation between them than their common antagonism to "wrong." That something is a duty implies that its non-performance tends to evoke moral indignation, that it is a virtue implies that its performance tends to evoke moral approval. That the virtues actually cover a comparatively large field of the province of duty is simply owing to their being dispositions of mind. We may praise the habits of justice and gratitude, even though we find nothing praiseworthy in an isolated just or grateful act.

[Footnote 34: Alexander, _op. cit._ p. 244.]

[Footnote 35: Sidgwick, _op. cit._ p. 219.]

There has been no less confusion with regard to the relation between duty and _merit_. Like the notions of "good" and "virtue," the "meritorious" derives its origin from the emotion of moral approval; but while the former merely express a tendency to give rise to such an emotion, "meritorious" implies that the object to which it refers merits praise, that it has a just claim to praise, or, in other words, that it ought to be recognised as good. This makes the term "meritorious" more emphatic than the term "good," but at the same time it narrows its province in a peculiar way. Just as the expression that something ought to be done implies the idea of its not being done, so the word "meritorious" suggests the idea of goodness which may fail of due recognition. And as it is meaningless to speak of duty in a case where the {151} opposite mode of conduct is entirely out of the question, so it would be an absurdity to attribute merit to somebody for an act the goodness of which is universally admitted. Thus "meritorious" involves a restriction. It would be almost blasphemous to call the acts of a God conceived to be infinitely good meritorious, since it would suggest a limitation of his goodness.

The emphatic claim to praiseworthiness made by the "meritorious" has rendered it objectionable to a great number of moralists. It has been identified with the "super-obligatory"--a conception which is to many an abomination. From what has been said above, however, it is manifest that they are not identical. As the discharge of a duty may be regarded as a good act, so it may also be regarded as an act which ought to be recognised as good. Practically, no doubt, there is a certain antagonism between duty and merit. We praise, and, especially, we regard as deserving praise, only what is above the average,[36] and we censure what is below it. No merit is conferred upon him who performs a duty which is seldom transgressed, or the transgression of which would actually incur punishment or censure. We do not think that a man ought to be praised for what his own interest prompts him to perform; and, since the transgression of a moral command which is usually obeyed is generally censured or punished, there is under ordinary circumstances nothing meritorious in performing a duty. But though thus probably most acts which are deemed meritorious fall outside the limits of duty as roughly drawn by the popular mind, we are on the other hand often disposed to attribute merit to a man on account of an act which, from a strict point of view, is his duty, but a duty which most people, under the same circumstances, would have left undischarged. This shows that the antagonism between duty and merit is not absolute. And in the concept of merit _per se_ no such antagonism is involved.

[Footnote 36: Merit, as Professor Alexander puts it (_op. cit._ p. 196), "expresses the interval which separates the meritorious from the average."]

{152} I confess that I fail to grasp what those writers really mean who identify the "meritorious" with the "super-obligatory," and at the same time deny the existence of any super-obligatory. Do they shut their eyes to the important psychical fact indicated by the term "merit," or do they look upon it as a chimera inconsistent with a sufficiently enlightened moral consciousness? For my own part, I cannot see how the moral consciousness could dispense with the idea that there are actions which merit praise or reward, which ought to be praised or rewarded. The denial of merit can be defended from a purely theological point of view, but then only with regard to man's relation to God. It is obvious that a fallen being who is sinning even when he does his best, could not be recognised as good by God and could have no merit. But it is hardly just, nor is it practically possible, that a man should measure his fellow-man by a superhuman standard of perfection, and try to suppress the natural emotion of moral approval and the claims springing from it, by persuading himself that there is no mortal being who ever does anything which ought to be recognised as good.

Quite distinct from the question of merit, then, is that of the _super-obligatory_. Can a man do more than his duty, or, in other words, is there anything good which is not at the same time a duty? The answer depends on the contents given to the commandments of duty, hence it may vary without affecting the concept of duty itself. If we consider that there is an obligation on every man to promote the general happiness to the very utmost of his ability, we must also maintain that nobody can ever do anything good beyond his duty. The same is the case if we regard "self-realisation," or a "normal" exercise of his natural functions, as a man's fundamental duty. In all these cases "to aim at acting beyond obligation," as Price puts it,[37] is "the same with aiming at acting contrary to obligation, and doing more than is fit to be done, the same with doing wrong." It can hardly be denied, however, {153} that those who hold similar views have actually two standards of duty, one by which they measure man and his doings in the abstract, with reference to a certain ideal of life which they please to identify with duty, and another by which they are guided in their practical moral judgments upon their own and their neighbours' conduct. The conscientious man is apt to judge himself more severely than he judges others, partly because he knows his own case better than theirs,[38] and partly because he is naturally afraid of being intolerant and unjust. He may indeed be unwilling to admit that he ever can do more than his duty, seeing how difficult it is even to do what he ought to do, and impressed, as he would be, with the feeling of his own shortcomings. Yet I do not see how he could conscientiously deny that he has omitted to do many praiseworthy or heroic deeds without holding himself blamable for such omissions.

[Footnote 37: Price, _Review of the Principal Questions in Morals_, p. 204 _sq._]

[Footnote 38: _Cf._ Sidgwick, _op. cit._ p. 221.]

Professor Sidgwick observes that "we should not deny that it is, in some sense, a man's strict duty to do whatever action he judges most excellent, so far as it is in his power."[39] This, as it seems to me, is not a matter of course, and nothing of the kind is involved in the notion of duty itself. We must not confound the moral law with the moral ideal. Duty is the minimum of morality, the supreme moral ideal of the best man is the maximum of it. Those who sum up the whole of morality in the word "ought" identify the minimum and the maximum, but I fail to see that morality is better for this. Rather it is worse. The recognition of a "super-obligatory" does not lower the moral ideal; on the contrary it raises it, or at any rate makes it more possible to vindicate the moral law and to administer it justly. It is nowadays a recognised principle in legislation that a law loses part of its weight if it cannot be strictly enforced. If the realisation of the highest moral ideal is commanded by a moral law, such a law will always remain a dead letter, and morality will gain nothing. Far above the anxious {154} effort to fulfil the commandments of duty stands the free and lofty aspiration to live up to an ideal, which, unattainable as it may be, threatens neither with blame nor remorse him who fails to reach its summits. Does not experience show that those whose thoughts are constantly occupied with the prescriptions of duty are apt to become hard and intolerant?

[Footnote 39: _Ibid._ p. 219.]

Those who deny the existence of anything morally "praiseworthy" which is not a duty, are also generally liable to deny the existence of anything morally _indifferent_ in the conduct of responsible beings. The "super-obligatory" and the "indifferent" have this in common, that they are "ultra-obligatory," and the denial of the one as well as of the other is an expression of the same tendency to look upon the moral law as the sole fact of the moral consciousness. Even Utilitarianism cannot consistently admit of anything indifferent within the province of moral valuation, since two opposite modes of conduct can hardly produce absolutely the same sum of happiness. Such a repudiation of the "indifferent" being quite contrary to the morality of common sense, which, after all, no ethical theory can afford to neglect, considerable ingenuity has been wasted on vain attempts to show that the "indifferent" is nothing but a rude popular conception unable to keep its ground against a thoroughgoing examination. Professor Ziegler ironically asks:--"Such outward matters as eating and drinking are surely morally indifferent? And yet is eating and drinking too much, is spending too much time in outdoor exercise, is lounging idly about, morally indifferent? or, on the other hand, is it morally allowable or wholesome to reduce oneself and make oneself weak and ill by fasting, or to become a hypochondriac by continually staying indoors?"[40] This argument, however, involves a confusion of different volitions. The fact that eating or drinking generally, or eating or drinking too much or too little, are no matters of indifference, surely does not prevent {155} eating or drinking on some certain occasion from being indifferent. Mr. Bradley again observes:--"It is right and a duty that the sphere of indifferent detail should exist. It is a duty that I should develop my nature by private choice therein. Therefore, _because_ that is a duty, it is a duty _not_ to make a duty of every detail; and thus in every detail I have done my duty."[41] This statement also shows a curious confusion of entirely different facts. It may be very true that it is a duty to recognise certain actions as indifferent. This is one thing by itself. But it is quite another thing to perform those actions. And if it is a duty to recognise certain actions as indifferent how could it possibly at the same time be held a duty to perform them?

[Footnote 40: Ziegler, _op. cit._ p. 85.]

[Footnote 41: Bradley, _Ethical Studies_, p. 195, n. 1.]

It has been maintained that the sphere of the indifferent forms the totality of "ought"; that when the same end may be reached by a variety of means, an action may be indifferent merely in relation to the choice of means, but not so far as regards the attainment of the end, and hence is only apparently indifferent.[42] "If it is my moral duty to go from one town to another," says Mr. Bradley, "and there are two roads which are equally good, it is indifferent to the proposed moral duty _which_ road I take; it is not indifferent _that_ I do take one or the other; and whichever road I do take, I am doing my duty on it, and hence it is far from indifferent: my walking on road A is a matter of duty in reference to the end, though not a matter of duty if you consider it against walking on road B; and so with B--but I can escape the sphere of duty neither on A nor on B." All this is true, but forms no argument against the "indifferent." The statement, "You ought to go to the town and to take either road A or B," refers to two volitions which are regarded as wrong, namely, the volition not to go to the town at all, and the volition to take any road not A or B; and it {156} refers also to two pairs of volitions in reference to which it indicates that the choice between the volitions constituting each pair is indifferent. You may choose to take road A or not to take it; you may choose to take road B or not to take it. The "indifferent" is always an alternative between contradictories. It can therefore never form part of an "ought"-totality, being itself a totality as complete as possible. This is somewhat disguised by a judgment which makes an obligation of a choice between A and B, but becomes conspicuous if we consider a simple case of indifference. Suppose that it is considered indifferent whether you speak or do not speak on a certain occasion. What is here the "ought" that forms the totality of the indifferent? Would there be any sense in saying that you ought either to speak or not to speak? or is the alternative, speaking--not speaking, only a link in an indefinite chain of alternatives, each of which is by itself indifferent, in a relative sense, but the sum of which forms the "ought"? You may be permitted--it will perhaps be argued--in a given moment to speak or to abstain from speaking, to write or to abstain from writing, to read or to abstain from reading, and so on; but however wide the province of the permissible may be, there must always be a limit inside which you ought to remain. That you do this or that may be a matter of indifference, but only of relative indifference, for it is not indifferent what you do on the whole; hence there is nothing absolutely indifferent. Such an argument, however, involves a misapprehension of the true meaning of the "indifferent." The predicate expressing indifference refers to certain definite volitions and their contradictories, not to the whole of a man's conduct in a certain moment. The whole of a man's conduct is never indifferent. But neither is the whole of a man's conduct ever wrong. In the moment when a murderer kills his victim he is fulfilling an endless number of duties: he abstains from stealing, lying, committing adultery, suicide, and so on. The predicate "wrong" only marks the moral {157} character of a special mode of conduct. Why should not the indifferent be allowed to do the same?

[Footnote 42: Simmel, _op. cit._ i. 35 _sqq._ Alexander, _op. cit._ p. 50 _sqq._ Murray, _op. cit._ p. 26 _sq._ Bradley, _op. cit._ p. 195 _sq._]

It has, finally, been observed that the so-called "indifferent" is something "the morality of which can only be individually determined."[43] This remark calls attention to the fact that no mode of conduct can be regarded as indifferent without a careful consideration of individual circumstances, and that much which is apparently indifferent is not really so. This, however, does not involve an abolition of the indifferent. Such an abolition would be the extreme of moral intolerance. He who tried to put it into practice would be the most insupportable of beings, and to himself life would be unbearable. Fortunately, such a man has never existed. The attempts to make every action, even the most trivial, of responsible beings a matter of moral concern, are only theoretical fancies without practical bearing, a hollow and flattering tribute to the idol of Duty.

[Footnote 43: Martensen, _Christian Ethics_, p. 415.]

CHAPTER VII

CUSTOMS AND LAWS AS EXPRESSIONS OF MORAL IDEAS

MORAL ideas are expressed in moral judgments. We have hitherto examined the predicates of such judgments, the import and origin of the moral concepts. Now a much wider field or research remains for us to traverse. We shall direct our attention to the subjects of moral judgments, to the mass of phenomena which, among different peoples and in different ages, have had a tendency to call forth moral blame and moral praise. We shall discuss the general characteristics which all these phenomena have in common. We shall classify the most important of them, and study the moral ideas held with reference to the phenomena of each class separately. And in both cases we shall not only analyse, but try to find an answer to the question, Why?--the ultimate aim of all scientific research. But before entering upon this vast undertaking, we must define the lines on which it is to be conducted. How can we get an insight into the moral ideas of mankind at large?

In answering this question I need not dwell upon such obvious means of information as direct experience, or records of moral maxims and sentiments found in proverbs, literary and philosophical works, and religious codes. The sources which, from an evolutionary point of view, are of the most comprehensive importance for our study, are tribal and national customs and laws. It is to these sources that the present chapter will be devoted.

{159} We have seen that a custom, in the strict sense of the word, is not merely the habit of a certain circle of men, but at the same time involves a moral rule. There is a close connection between these two characteristics of custom: its habitualness and its obligatoriness. Whatever be the foundation for a certain practice, and however trivial it may be, the unreflecting mind has a tendency to disapprove of any deviation from it for the simple reason that such a deviation is unusual. As Abraham Tucker observes, "it is a constant argument among the common people, that a thing must be done, and ought to be done, because it always has been done."[1] Children show respect for the customary,[2] and so do savages. "If you ask a Kaffir why he does so and so, he will answer--'How can I tell? It has always been done by our forefathers.'"[3] The only reason which the Eskimo can give for some of their present customs, to which they adhere from fear of ill report among their people, is that "the old Innuits did so, and therefore they must."[4] In the behaviour of the Aleut, who "is bashful if caught doing anything unusual among his people,"[5] and in the average European's dread of appearing singular, we recognise the influence of the same force of habit.

[Footnote 1: Tucker, _Light of Nature_, ii. 593. _Cf._ also Simmel, _Einleitung in die Moralwissenschaft_, i. 65 _sqq._]

[Footnote 2: Sully, _Studies of Childhood_, p. 280 _sq._]

[Footnote 3: Leslie, _Among the Zulus and Amatongas_, p. 146.]

[Footnote 4: Hall, _Arctic Researches_, p. 569.]

[Footnote 5: Dall, _Alaska_, p. 396.]

On the other hand, it should be remembered that not every public habit is a custom, involving an obligation; certain practices, though very general in a society, may even be reprobated by almost every one of its members. The habits of a people must therefore be handled with discretion by the student of moral ideas. Yet when he has no reason to conclude as to some special habit that it is held obligatory, he may, probably always, be sure that it is either allowed, or, in spite of all assurances of its wickedness, that the disapproval of it is not generally very deep or genuine. In a community where lying is a {160} prevailing vice, truthfulness cannot be regarded as a very sacred duty; and where sexual immorality is widely spread, the public condemnation of it always smacks of hypocrisy. Men's standard of morality is not independent of their practice. The conscience of a community follows the same rule as the conscience of an individual. "Commit a sin twice," says the Talmud, "and you will think it perfectly allowable."[6] Hence for the study of the inmost convictions of a nation, its "bad habits" form a valuable complement to its professed opinions.

[Footnote 6: Deutsch, _Literary Remains_, p. 58.]

The dictates of custom being dictates of morality, it is obvious that the study of moral ideas will, to a large extent, be a study of customs. But at the same time it should be borne in mind that custom never covers the whole field of morality, and that the uncovered space grows larger in proportion as the moral consciousness develops. Being a rule of duty, custom may only indirectly be an expression of moral approval, by claiming, in certain cases, that goodness should be rewarded. But even when demanding praise, custom is not always a reliable exponent of merit; it includes politeness, and politeness is a great deceiver. Custom may compel us to praise a man for form's sake, when he deserves no praise, and to thank him when he deserves no thanks. Moreover, custom regulates external conduct only. It tolerates all kinds of volitions and opinions if not openly expressed. It does not condemn the heretical mind, but the heretical act. It demands that under certain circumstances certain actions shall be either performed or omitted, and, provided that this demand is fulfilled, it takes no notice of the motive of the agent or omitter. Again, in case the course of conduct prescribed by custom is not observed, the mental facts connected with the transgression, if regarded at all, are dealt with in a rough and ready manner, according to general rules which hardly admit of individualisation. Yet the incongruity between custom and morality which ensues from these circumstances is on {161} the whole more apparent than real. It is rather an incongruity between different moral standards. The unreflecting moral consciousness, like custom, cares comparatively little for the internal aspect of conduct. It does not ask whether a man goes to church on Sunday from a religious motive or from fear of public opinion; it does not ask whether he stays at home from love of ease or from dissent of belief and avoidance of hypocrisy. It is ready to blame as soon as the dictate of custom is disobeyed. The rule of custom is the rule of duty at early stages of development. Only progress in culture lessens its sway.

Finally, the moral ideas which are expressed in the customs of a certain circle of men are not necessarily shared by every one of its members. This may, in the present connection, be considered a matter of slight importance by him who regards morality as "objectively" realised in the customs of a people, and who denies the individual the right to a private conscience. But from the subjective point of view which I am vindicating, individual conviction has a claim to equal consideration with public opinion, nay frequently, to higher respect, representing as it does in many cases a higher morality, a moral standard more purified by reflection and impartiality. At the lower stages of civilisation, however, where a man is led by his feelings more than by his thoughts, such a differentiation of moral ideas hardly occurs. The opinions of the many are the opinions of all, and the customs of a society are recognised as rules of duty by all its members.

In primitive society custom stands for law, and even where social organisation has made some progress it may still remain the sole rule for conduct.[7] The authority of {162} a chief does not necessarily involve a power to make laws. Even kings who are described as autocrats may be as much tied by custom as is any of their subjects.

[Footnote 7: Cranz, _History of Greenland_, i. 170. Dall, _op. cit._ p. 381 (Tuski). Dobrizhoffer, _Account of the Abipones_, p. 95. Shooter, _Kafirs of Natal and the Zulu Country_, p. 101 _sq._ Holden, _Past and Future of the Kaffir Races_, p. 336. Mungo Park, _Travels in the Interior of Africa_, p. 16. Scaramucci and Giglioli, 'Notizie sui Danakil,' in _Archivio per l'antropologia e la etnologia_, xiv. 39. Earl, _Papuans_, p. 105 (Arru Islanders). Forbes, _A Naturalist's Wanderings in the Eastern Archipelago_, p. 473 (Timorese). Dalton, _Ethnology of Bengal_, p. 51 (Manipuris). Rockhill, _Land of the Lamas_, p. 220 (Eastern Tibetans).]

The Rejangs of Sumatra "do not acknowledge a right in the chiefs to constitute what laws they think proper, or to repeal or alter their ancient usages, of which they are extremely tenacious and jealous." There is no word in their language which signifies law, and the chiefs, in pronouncing their decisions are not heard to say, "So the law directs," but, "Such is the custom."[8] According to Ellis, "the veneration of the Malagasy for the customs derived from tradition, or any accounts of their ancestors . . . influences both their public and private habits; and upon no individual is it more imperative than upon their monarch, who, absolute as he is in other respects, wants either the will or the power to break through the long-established regulations of a superstitious people."[9] The king of Ashanti, although represented as a despotic monarch, is nevertheless under an obligation to observe the national customs which have been handed down to the people from remote antiquity, and a practical disregard of this obligation, in the attempt to change some of the old customs, cost one of the kings his throne.[10] "The Africans," says Mr. Winwood Reade, with special reference to Dahomey, "have sometimes their enlightened kings, as the old barbarians had their sages and their priests. But it is seldom in the power of the heads of a people to alter those customs which have been held sacred from time immemorial."[11] The Basutos, among whom "the chiefs have the right of making laws and publishing regulations required by the necessities of the times," regard such laws, or _molaos_, as inferior to the _mekhoas_, "the use and wont," which constitute the real laws of the country.[12] Among the ancient Irish, there was no sovereign authority competent to enact a new law, the function of the king being merely, as chief of the tribal assembly, to see that the proper customs were observed.[13]

[Footnote 8: Marsden, _History of Sumatra_, p. 217.]

[Footnote 9: Ellis, _History of Madagascar_, i. 359.]

[Footnote 10: Beecham, _Ashantee and the Gold Coast_, p. 90 _sq._ _Cf._ Stuhlmann, _Mit Emin Pascha ins Herz von Afrika_, p. 523 (A-l[=u]r).]

[Footnote 11: Reade, _Savage Africa_, p. 52 _sq._]

[Footnote 12: Casalis, _Basutos_, p. 228.]

[Footnote 13: _Ancient Laws of Ireland_, iii. p. lxxxvi. _sq._ Cherry, _Growth of Criminal Law_, p. 33.]

{163} In competition with law, custom frequently carries the day. In India, especially in the South, "custom has always been to a great extent superior to the written law."[14] In the Ramnad case, the Judicial Committee expressly declared that, "under the Hindu system of law, clear proof of usage will outweigh the written text of the law."[15] It was also a maxim of the Roman jurists that laws may be abrogated by desuetude or contrary usage;[16] and in modern times the same doctrine is acted upon in Scotland.[17] Moreover, when a custom cannot abrogate the law, it may still have a paralysing influence on its execution. According to the laws of European nations, a man who has killed another in a duel is to be treated as a homicide; yet wherever the duel exists as a custom, the law against it is ineffective. So it is on the Continent, and so it was in England in the eighteenth century, when a well-informed writer could affirm that he had "not found any case of an actual execution in England in consequence of a duel fairly fought."[18] In this instance the ineffectiveness of the law is owing to the fact that the law has not been able to abolish an old custom. But the superiority of custom also shows itself in cases where the law itself is getting antiquated, and a new custom, enforced by public opinion, springs up in opposition to it. Thus, contrary to law and earlier usage, it is nowadays the custom of certain European countries that a sentence of death is not carried into execution. Even "bad habits" tend to weaken the authority of the law. Probably the two most prominent civil vices of the Chinese are bribery and gambling. Against both these vices their penal code speaks with no uncertain sound; and yet, according to {164} Professor Douglas, it is no exaggeration to say that if the law were enforced, it would make a clean sweep of ninety-nine of every hundred officials in the empire.[19] Other illustrations of the same principle may be found much nearer home.

[Footnote 14: Burnell, quoted by Nelson, _View of the Hind[=u] Law_, p. 136.]

[Footnote 15: Mayne, _Treatise on Hindu Law and Usage_, p. 41.]

[Footnote 16: _Institutiones_, i. 2. 11. _Digesta_, i. 3. 32.]

[Footnote 17: Mackenzie, _Studies in Roman Law_, p. 54.]

[Footnote 18: Quoted by Bosquett, _Treatise on Duelling_, p. 80. _Cf._ _A Short Treatise upon the Propriety and Necessity of Duelling_, printed at Bath in 1779. In 1808, however, Major Campbell was sentenced to death and executed for killing Captain Boyd in a duel (Storr, 'Duel,' in _Encyclopædia Britannica_, vii. 514).]

[Footnote 19: Douglas, _Society in China_, p. 82.]

Custom has proved stronger than law and religion combined. Sir Richard Burton writes of the Bedouins, "Though the revealed law of the Koran, being insufficient for the Desert, is openly disregarded, the immemorial customs of the _Kazi al-Arab_ (the Judge of the Arabs) form a system stringent in the extreme."[20] So, also, the Turkomans are ruled, often tyrannised over, by a mighty sovereign, invisible indeed to themselves, but whose presence is plainly discerned in the word _deb_--"custom," "usage." Our authority adds:--"It is very remarkable how little the 'Deb' has suffered in its struggle of eight centuries with Mahommedanism. Many usages, which are prohibited to the Islamite, and which the Mollahs make the object of violent attack, exist in all their ancient originality."[21]

[Footnote 20: Burton, _Pilgrimage to Al-Madinah and Meccah_, ii. 87.]

[Footnote 21: Vámbéry, _Travels in Central Asia_, p. 310 _sqq._]

The laws themselves, in fact, command obedience more as customs than as laws. A rule of conduct which, from one point of view, is a law, is in most cases, from another point of view, a custom; for, as Hegel remarks, "the valid laws of a nation, when written and collected, do not cease to be customs."[22] There are instances of laws that were never published, the knowledge and administration of which belonged to a privileged class, and which nevertheless were respected and obeyed.[23] And among ourselves the ordinary citizen stands in no need of studying the laws under which he lives, custom being generally the safe guiding star of his conduct. Custom, as Bacon said, is "the principal magistrate of man's life,"[24] or, as the ancients put it, "the king of all men."[25]

[Footnote 22: Hegel, _Philosophie des Rechts_, § 211, p. 199.]

[Footnote 23: Rein, _Japan_, p. 314.]

[Footnote 24: Bacon, 'Essay xxxix. Of Custom and Education,' in _Essays_, p. 372.]

[Footnote 25: Herodotus, iii. 38.]

{165} Many laws were customs before they became laws. Ancient customs lie at the foundation of all Aryan law-books. Mr. Mayne is of opinion that Hindu law is based upon customs which existed even prior to and independent of Brahmanism.[26] The Greek word [Greek: no/mos] means both custom and law, and this combination of meanings was not owing to poverty of language, but to the deep-rooted idea of the Greek people that law is, and ought to be, nothing more and nothing less than the outcome of national custom.[27] A great part of the Roman law was founded on the _mores majorum_; in the Institutes of Justinian, it is expressly said that "long prevailing customs, being sanctioned by the consent of those who use them, assume the nature of Laws."[28] The case was similar with the ancient laws of the Teutons and Irish.[29]

[Footnote 26: Mayne, _op. cit._ p. 4.]

[Footnote 27: Ziegler, _Social Ethics_, p. 30. Schmidt, _Ethik der alten Griechen_, i. 201.]

[Footnote 28: _Institutiones_, i. 2. 9.]

[Footnote 29: Joyce, _Social History of Ancient Ireland_, i. 181.]

The transformation of customs into laws was not a mere ceremony. Law, like custom, is a rule of conduct, but, while custom is established by usage and obtains, in a more or less indefinite way, its binding force from public opinion, a law originates in a definite legislative act, being set, as Austin says, by a sovereign person, or a sovereign body of persons, to a person or persons in a state of subjection to its author.[30] By becoming laws, then, the customs were expressly formulated, and were enforced by a more definite sanction. It seems that the process in question arose both from considerations of social utility and from a sense of justice. Cicero observes that it was for the sake of equity that "laws were invented, which perpetually spoke to all men with one and the same voice."[31] From these points of view it was neither necessary nor desirable that more than a limited set of customs should pass into laws. There are customs which are too indefinite to assume the stereotyped shape of law.[32] There are others, the breach {166} of which excites too little public indignation, or which are of too little importance for the public welfare, to be proper objects of legislation. And there are others which may be said to exist unconsciously, that is, which are universally observed as a matter of course, and which, never being transgressed, are never thought of.

[Footnote 30: Austin, _Lectures on Jurisprudence_, i. 87, 181, &c.]

[Footnote 31: Cicero, _De officiis_, ii. 12.]

[Footnote 32: _Cf._ Aristotle, _Ethica Nicomachea_, v. 10. 6.]

Laws which are based on customs naturally express moral ideas prevalent at the time when they are established. On the other hand, though still in existence, they are not necessarily faithful representatives of the ideas of a later age. Law may be even more conservative than custom. Though the latter exercises a very preservative influence on public opinion, it _eo ipso_ changes when public opinion changes. Even among savages, in spite of their extreme regard for the customs of their ancestors, it is quite possible for changes to be introduced; the traditions of the Central Australian Arunta, for instance, indicate their own recognition of the fact that customs have varied from time to time.[33] But the legal form gives to an ancient custom such a fixity as to enable it to survive, as a law, the change of public opinion and the introduction of a new custom. In all progressive societies, as Sir Henry Maine observes, social necessities and social opinion are always more or less in advance of law. "We may come indefinitely near to the closing of the gap between them, but it has a perpetual tendency to re-open."[34]

[Footnote 33: Spencer and Gillen, _Native Tribes of Central Australia_, p. 12 _sqq._]

[Footnote 34: Maine, _Ancient Law_, p. 24.]

The moral ideas of a people are less extensively represented in its laws than in its customs. This is a corollary of the fact that there are always a great number of customs which never become laws. Moreover, whilst law, like custom, directly expresses only what is obligatory, it hardly ever deals with merit, even indirectly. The Chinese have a method of rewarding and commemorating meritorious and virtuous subjects by erecting gates in their honour, and conferring upon them marks of public distinction;[35] {167} and the Japanese and Coreans award prizes in the form of money or silver cups or monumental columns to signal exemplars of filial piety, arguing that, if the law punishes crime, it ought also to reward virtue.[36] In Europe we have titles and honours, pensions for distinguished service, and the like; but the distribution of them is not regulated by law, and has often little to do with morality.

[Footnote 35: de Groot, _Religious System of China_ (vol. ii. book) i. 769, 789 _sq._]

[Footnote 36: Griffis, _Corea_, p. 236.]

Law, like custom, only deals with overt acts, or omissions, and cares nothing for the mental side of conduct, unless the law be transgressed. Yet, as will be seen subsequently, though this constitutes an essential difference between law and the enlightened moral consciousness, it throws considerable light on the moral judgments of the unreflecting mind.

Being a general, and at the same time a strictly defined, rule of conduct, a law can even less than a custom make special provision for every case so as to satisfy the demand of justice. This disadvantage, however, was hardly felt in early periods of legislation, when little account was taken of what was behind the overt act; and at later stages of development, the difficulty was overcome by leaving greater discretion to the judge. The history of legal punishments in England, for instance, shows a change from a system which, except in cases of misdemeanour, left no discretion at all to judges, to a system under which unlimited discretion is left to them in all cases except those which are still liable to capital punishment--practically, high treason and murder.[37] The study of law, then, must for our purpose be supplemented by the study of judicial practice.

[Footnote 37: Stephen, _History of the Criminal Law of England_, ii. 87.]

Laws which represent public opinion are no more than customs safe exponents of the moral ideas held by particular members of the society. But on the other hand, there are cases in which a law, unlike a custom, may express the ideas, or simply the will, of a few, or even of {168} a single individual, that is, of the sovereign power only. It is obvious that laws imposed upon a barbarous people by civilised legislators may differ widely from the people's own ideas of right and wrong. For instance, when studying the moral sentiments of the Teutonic peoples from their early law-books, we must carefully set aside all elements of Roman or Christian origin. At the same time, however, it should be remembered that the moral consciousness of a people may gradually be brought into harmony with a law originally foreign to it. If the law is in advance of public opinion--as Roman law undoubtedly was in Teutonic countries--it may raise the views of the people up to its own standard by awaking in them dormant sentiments, or by teaching them greater discrimination in their judgments. And, as has been already noticed, what is forbidden and punished may, for the very reason that it is so, come to be regarded as wrong and worthy of punishment.

Finally, a law may enjoin or forbid acts which by themselves are regarded as indifferent from a moral point of view. This is, for instance, the case with the laws which require marriages to be celebrated at certain times and places only, and which forbid the cultivation of tobacco in England. Jurists divide crimes into _mala in se_ and _mala quia prohibita_. The former would be wrong even if they were not prohibited by law, the latter are wrong only because they are illegal.

A law expresses a rule of duty by making an act or omission which is regarded as wrong a crime, that is, by forbidding it under pain of punishment. Law does not in all cases directly threaten[38] with punishment--I say directly, since all law is coercive, and all coercion at some stage involves the possibility of punishment.[39] Sanctions, or the consequences by which the sovereign political authority threatens to enforce the laws set by it, may {169} have in view either the indemnification of the injured party, or the suffering of the injurer. In the latter case the sanctions are called punishments. But, though highly important, the distinction between indemnification and punishment is not absolute. A person who causes harm to another would hardly have to pay damages unless some kind of guilt or quasi-guilt were imputed to him; and, on the other hand, punishment may actually consist in the damages he has to pay. Moreover, the suffering involved in punishment must be regarded as a kind of indemnification in so far as it is intended to gratify the injured party's craving for revenge. The pleasure of vengeance, says Bentham, "is a gain; it calls to mind Samson's riddle--it is sweet coming out of the terrible, it is honey dropping from the lion's mouth."[40] In cases where the injured party is allowed to decide whether the injurer shall be punished or not, or what punishment (within certain limits) shall be inflicted upon him, it is obvious that punishment is largely looked upon as a means of indemnification. However, the fact that such a privilege is granted to the injured party indicates the existence of some degree of sympathetic resentment in the public. Punishment, in all its forms, is essentially an expression of indignation in the society which inflicts it.[41] Hence it is of extreme importance for the study of moral ideas, and calls for our careful consideration.

[Footnote 38: "Not every sovereign can make sure of enforcing his commands; and sometimes laws are made without even any great intention of enforcing them" (Pollock, _Essays in Jurisprudence and Ethics_, p. 9 _sq._).]

[Footnote 39: _Cf._ Stephen, _op. cit._ i. 2.]

[Footnote 40: Bentham, _Theory of Legislation_, p. 309.]

[Footnote 41: "Die Missbilligung ist das Wesentliche aller Strafe" (von Bar, _Die Grundlagen des Strafrechts_, p. 4). "La peine consiste dans une réaction passionnelle d'intensité graduée" (Durkheim, _Division du travail social_, p. 96).]

By punishment I do not understand here every suffering inflicted upon an offender in consequence of his offence, but only such suffering as is inflicted upon him in a definite way by, or in the name of, the society of which he is a permanent or temporary member. This definition holds good whatever may be the opinion about the final object of punishment. Whether its purpose is, or is supposed to be, either reformation, or determent, or retribution, its immediate aim is always to cause suffering. {170} We should not call it punishment if the reformation of the criminal were attempted, say, by means of hypnotism.

It is a common opinion that punishment, in this sense of the word, is a social institution of comparatively modern origin, which has sprung from, and gradually superseded, the earlier custom of individual or family revenge. This opinion may seem plausible to the student of European and Eastern law, but, as we shall see, the early history of civilised races is apt to give a somewhat erroneous idea of the evolution of punishment. Even among savages public indignation frequently assumes that definite shape which constitutes the difference between punishment and mere condemnation.[42]

[Footnote 42: See Steinmetz, _Ethnologische Studien zur ersten Entwicklung der Strafe_, ii. 327 _sqq._; Makarewicz, _Évolution de la peine_, _passim_.]

Savage punishment sometimes simply consists in publicly putting the offender to shame.

In Greenland the courts of justice were the public assemblies, which at the same time supplied the national sports and entertainments. Here "nith-songs" were used for settling all sorts of crimes or breaches of public order or custom, with the exception of those which could only be expiated by death; by means of cutting capers and singing, the offender was told of his faults, and the opposite virtues were praised to all who were present.[43] The same institution is found, with only incidental differences, among several other tribes within and beyond the Arctic circle.[44] And, knowing the sensitiveness of these peoples, we may assume that the punishment in question is by no means lenient. In Greenland "it now and then happens that some one or other, wounded, perhaps, by a single word from one of his kinsfolk, runs away to the mountains, and is lost for several days at least."[45] And Adair, speaking of the public jesting by which North American Indians used to punish young people who were guilty of petty crimes, says that "they would sooner die by torture, than renew their shame by repeating the actions."[46]

[Footnote 43: Rink, _Eskimo Tribes_, p. 24 _sq._ _Idem_, _Greenland_, pp. 141, 150. Cranz, _op. cit._ i. 165 _sq._ Holm, 'Ethnologisk Skizze af Angmagsalikerne,' in _Meddelelser om Grönland_, p. 87.]

[Footnote 44: Kane, _Arctic Explorations_, ii. 128 _sq._]

[Footnote 45: Nansen, _Eskimo Life_, p. 267 _sq._]

[Footnote 46: Adair, _History of the American Indians_, p. 429 _sq._]

{171} In other instances the community as a whole expresses its indignation by inflicting suffering of a more material kind upon the culprit.

In certain Australian tribes, when a native for any transgression incurs the displeasure of his tribe, custom compels him to "stand punishment," as it is called; that is, he stands with a shield at a fair distance, while the whole tribe, either simultaneously or in rapid succession, cast their spears at him. Their expertness generally enables those who are exposed to this trial to escape without serious injury, though instances of a fatal result occasionally occur; however, there is a certain propriety even in this extraordinary punishment, as the accuracy and force with which the weapons are thrown will depend very much on the opinion entertained of the enormity of the offence.[47] Among the North-West-Central Queensland aborigines, though each individual, within certain limits, can do what he pleases, "he has to reckon not only with the particular person injured, or his relatives, but also, in some cases, with the whole camp collectively. Thus the camp as a body, as a camp council, will take upon itself to mete out punishment in crimes of murder, incest, or the promiscuous use of fighting-implements within the precincts of the camping-ground: death, and probably the digging of his own grave, awaits the delinquent in the former case, while 'crippling,' generally with knives, constitutes the penalty for a violation of the latter." Again, if a woman makes herself obnoxious in the camp, especially to the female portion of it, she is liable to be set upon and "hammered" by her fellow-sisters collectively, the men on such occasions not interfering.[48] Among the Bangerang tribe of Victoria, "any one who had suffered a wrong complained of it, if at all, at night aloud to the camp, which was silent and attentive. Then the accused was heard. Afterwards those who chose, men or women, expressed their views on the subject; and if general opinion pronounced the grievance a good one, the accused accepted the penalty sanctioned by custom."[49] Among various tribes in Western Victoria, "should a person, through bad conduct, become a constant anxiety and trouble {172} to the tribe, a consultation is held, and he is put to death."[50] Among the Mpongwe, if a man murders another, he is put to death, not by the nearest of kin, but by the whole community, being either drowned or burned alive.[51] Among the Hudson Bay Eskimo, "when a person becomes so bad in character that the community will no longer tolerate his presence he is forbidden to enter the huts, partake of food, or hold any intercourse with the rest. Nevertheless, as long as he threatens no one's life, but little attention is paid to him. Should he be guilty of a murder, several men watch their opportunity to surprise him and put him to death, usually by stoning. The executioners make no concealment of their action and are supported by public opinion in the community."[52]

[Footnote 47: Hale, _U.S. Exploring Expedition. Vol. VI. Ethnography and Philology_, p. 114. _Cf._ Eyre, _Journals of Expeditions of Discovery into Central Australia_, ii. 388; Collins, _English Colony in New South Wales_, i. 586; Brough Smyth, _Aborigines of Victoria_, ii. 295.]

[Footnote 48: Roth, _Ethnological Studies among the North-West-Central Queensland Aborigines_, pp. 139, 141. Curr, _The Australian Race_, i. 61 _sq._]

[Footnote 49: Curr, _Squatting in Victoria_, p. 245.]

[Footnote 50: Dawson, _Australian Aborigines_, p. 76.]

[Footnote 51: Burton, _Two Trips to Gorilla Land_, i. 105.]

[Footnote 52: Turner, 'Ethnology of the Ungava District,' in _Ann. Rep. Bur. Ethn._ xi. 186.]

Among various savage peoples expulsion from the tribe is the punishment of persons whose conduct excites great public indignation, and among others such persons are outlawed.

The Chippewyans, among whom "order is maintained in the tribe solely by public opinion," the chief having no power to punish crimes, occasionally expel from the society individuals whose conduct is exceptionally bad and threatens the general peace.[53] The Salish, or flathead Indians, sometimes punished notorious criminals by expulsion from the tribe or band to which they belonged.[54] Sir E. F. Im Thurn, whilst praising the Indians of Guiana for their admirable morality as long as they remain in a state of nature, adds that there are exceptions to the rule, and that such individuals "are soon killed or driven out from their tribe."[55] Among the Bedouins of the Euphrates, "in extreme cases, and as the utmost penalty of the law, the offender is turned out of the tribe";[56] and the same is the case among the Beni Mzab.[57] In the Scotch Highlands, even to this day, instances are common of public opinion operating as a punishment, to the extent of forcing individuals into exile.[58] There are cases reported from various parts of the savage world of banishment being inflicted as a punishment for sexual {173} offences;[59] and other instances of expulsion are mentioned by Dr. Steinmetz.[60] In some cases, however, expulsion is to be regarded rather as a means of ridding the community from a pollution, than as a punishment in the proper sense of the term.[61]

[Footnote 53: Richardson, _Arctic Searching Expedition_, ii. 26 _sq._]

[Footnote 54: Hale, _op. cit._ p. 208.]

[Footnote 55: Im Thurn, _Among the Indians of Guiana_, p. 213.]

[Footnote 56: Blunt, _Bedouin Tribes of the Euphrates_, ii. 206.]

[Footnote 57: Chavanne, _Sahara_, p. 315. Tristram, _Great Sahara_, p. 207.]

[Footnote 58: Stewart, _Highlanders of Scotland_, p. 380.]

[Footnote 59: Westermarck, _History of Human Marriage_, p. 61 _sqq._]

[Footnote 60: Steinmetz, _op. cit._ ii. ch. 5.]

[Footnote 61: See _infra_, on Homicide.]

Nearly related to the punishment of expulsion is that of outlawry. Von Wrede states that the Bedouins of [H.]adhramaut give a respite of three days to the banished man, and that after the lapse of this period every member of the tribe is allowed to kill him.[62] Among the Wyandots the lowest grade of outlawry consists in a declaration that, if the offender shall continue in the commission of crimes similar to that of which he has been guilty, it will be lawful for any person to kill him, whilst outlawry of the highest degree makes it the duty of any member of the tribe who may meet with the offender to kill him.[63] Among the ancient Teutons, also, outlawry was originally a declaration of war by the commonwealth against an offending member, and became only later on a regular means of compelling submission to the authority of the courts.[64]

[Footnote 62: von Wrede, _Reise in [H.]adhramaut_, p. 51.]

[Footnote 63: Powell, 'Wyandot Government,' in _Ann. Rep. Bur. Ethn._ i. 68.]

[Footnote 64: Pollock and Maitland, _History of English Law before the time of Edward I._ i. 49.]

Most generally, however, punishment is inflicted upon the culprit, not by the whole of the community, but by some person or persons invested with judicial authority. Indeed, it is not only civilised races who have judges and courts of justice. Among savages and barbarians justice is very frequently administered by a council of elders or by a chief.[65] Even people of so low a type as the Australian aborigines have their tribunals.

[Footnote 65: Petroff, 'Report on Alaska,' in _Tenth Census of the United States_, p. 152 (Aleuts). Morgan, _League of the Iroquois_, p. 330. Powell, in _Ann. Rep. Bur. Ethn._ i. 63, 66 _sq._ (Wyandots). _Idem_, 'Sociology,' in _American Anthropologist_, N.S. i. 706 (North American tribes). Schoolcraft, _Indian Tribes of the United States_, i. 277 (Creeks). von Martius, _Beiträge zur Ethnographie Amerika's_, i. 88 (Brazilian Indians). Cook, _Journal of a Voyage round the World_, p. 41 (Tahitians). Lister, in _Jour. Anthr. Inst._ xxi. 54 (Bowditch Islanders). Codrington, _Melanesians_, p. 345 (Solomon Islanders). Hunt, in _Jour. Anthr. Inst._ xxviii. 6 (Murray Islanders). Kohler, in _Zeitschr. f. vergl. Rechtswiss._ xiv. 448; Senfft, in Steinmetz, _Rechtsverhältnisse_, p. 448; Kubary, 'Die Ebongruppe im Marshall's Archipel,' in _Journal des Museum Godeffroy_, i. 37 (Marshall Islanders). _Idem_, _Ethnographische Beiträge zur Kenntniss der Karolinischen Inselgruppe_, p. 73 _sqq._; _Idem_, 'Die Palau-Inseln,' in _Journal des Museum Godeffroy_, iv. 42 (Pelew Islanders). von Kotzebue, _Voyage of Discovery_, iii. 208 (Caroline Islanders). Worcester, _Philippine Islands_, p. 107 (Tagbanuas of Palawan). Marsden, _History of Sumatra_, p. 217 (Rejangs). von Brenner, _Besuch bei den Kannibalen Sumatras_, p. 211 (Bataks). Forbes, _A Naturalist's Wanderings in the Eastern Archipelago_, p. 243 (Kubus of Sumatra). Man, _Sonthalia_, p. 88 _sq._ Cooper, _Mishmee Hills_, p. 238. Macpherson, _Memorials of Service in India_, p. 83 (Kandhs). Stewart, in _Jour. As. Soc. Bengal_, xxiv. 609, 620 (Nagas, Old Kukis). Dalton, _Ethnology of Bengal_, p. 45 (Kukis). Forsyth, _Highlands of Central India_, p. 361 (Bygás). Shortt, in _Trans. Ethn. Soc._ N.S. vii. 241 (Todas). Batchelor, _Ainu and their Folk-Lore_, p. 278; von Siebold, _Die Aino auf der Insel Yesso_, p. 34. From Africa a great number of instances might be quoted, _e.g._:--Nachtigal, _Sahara und Sudan_, i. 449 (Tedâ). Petherick, _Egypt, the Soudan, and Central Africa_, p. 320 (Nouaer tribes). Beltrame, _Il Fiume Bianco_, p. 77 (Shilluk). Laing, _Travels in the Timannee, &c. Countries_, p. 365 (Soolimas). Mungo Park, _Travels in the Interior of Africa_, p. 15 _sq._ (Mandingoes). Leuschner, in Steinmetz, _Rechtsverhältnisse_, p. 22 (Bakwiri). _Ibid._ p. 47 (Banaka and Bapuku). Tellier, _ibid._ p. 175 (Kreis Kita, in the French Soudan). Bosman, _New Description of the Coast of Guinea_, p. 331 (Negroes of Fida). Casati, _Ten Years in Equatoria_, p. 158, 163 (Akkas, Mambettu). Stuhlmann, _Mit Emin Pascha ins Herz von Africa_, p. 523 (A-l[=u]r). _Emin Pasha in Central Africa_, p. 89 (Wanyoro). Baskerville, in Steinmetz, _Rechtsverhältnisse_, p. 193 (Waganda). Beverley, _ibid._ p. 214 (Wagogo). Lang, _ibid._ p. 253 _sqq._ (Washambala). Desoignies, _ibid._ p. 279 _sq._ (Msalala). Decle, _Three Years in Savage Africa_, pp. 71, 73, 74, 487 (Barotse, Wakamba). Junod, _Les Ba-Ronga_, p. 155 _sq._ Burton, _Zanzibar_, ii. 94 (Wanika). Holub, _Seven Years in South Africa_, ii. 319 (Marutse). Kohler, in _Zeitschr. f. vergl. Rechtswiss._ xiv. 316 (Herero). Andersson, _Lake Ngami_, p. 197 (Ovambo). Rautanen, in Steinmetz, _Rechtsverhältnisse_, p. 340 (Ondonga). Kolben, _Present State of the Cape of Good Hope_, p. 86, 297 (Hottentots). Kohler, in _Zeitschr. f. vergl. Rechtswiss._ xv. 333 (Bechuanas). Casalis, _Basutos_, pp. 224, 226. Maclean, _Compendium of Kafir Laws and Customs_, pp. 35, 110. Holden, _Past and Future of the Kaffir Races_, pp. 333, 336. Shooter, _Kafirs of Natal_, p. 99 _sq._]

{174} Speaking of the native tribes of Central Australia, Messrs. Spencer and Gillen observe:--"Should any man break through the strict marriage laws, it is not only an 'impersonal power' which he has to deal with. The head men of the group or groups concerned consult together with the elder men, and, if the offender, after long consultation, be adjudged guilty and the determination be arrived at that he is to be put to death--a by no means purely hypothetical case--then the same elder men make arrangements to carry the sentence out, and a party, which is called an _ininja_, is organised for the purpose."[66] We hear of similar councils from various parts of the Australian continent. In his description of the aborigines of New South Wales, Dr. Fraser states, "The Australian council of old and experienced men--this aboriginal senate and witenagemot--has the power to decree punishment for tribal offences." The chiefs sit as magistrates to decide all cases which are brought before them, such as the divulging of sacred things, speaking to a mother-in-law, the adultery of a wife; and there is even a {175} tribal executioner. At the same time, many grievances are arranged without the intervention of the chiefs; for instance, if a man has been found stealing from his neighbour, or two men quarrel about a woman, a fight ensues, the one or the other gets his head broken, and there the matter ends.[67] The Narrinyeri have a judgment council of the elders of the clan, called _tendi_, which is presided over by the chief of the clan; and when any member of the _tendi_ dies, the surviving members select a suitable man from the clan to succeed him. "All offenders are brought to this tribunal for trial. In cases of the slaying by a person or persons of one clan of the member of another clan in time of peace, the fellow-clansmen of the murdered man will send to the friends of the murderer and invite them to bring him to trial before the united _tendies_. If, after full inquiry, he is found to have committed the crime, he will be punished according to the degree of guilt."[68] Among another Australian tribe, the Gournditch-mara, again, the headman, whose office was hereditary, "settled all quarrels and disputes in the tribe. When he had heard both sides, and had given his decision in a matter, no one ever disputed it."[69]

[Footnote 66: Spencer and Gillen, _op. cit._ p. 15.]

[Footnote 67: Fraser, _Aborigines of New South Wales_, p. 39.]

[Footnote 68: Taplin, 'Narrinyeri,' in Woods, _Native Tribes of South Australia_, p. 34 _sq._]

[Footnote 69: Fison and Howitt, _Kamilaroi and Narrinyeri_, p. 277.]

Among the Australian aborigines, then, we find cases in which punishment is inflicted by the whole community, and other cases in which it is inflicted by a tribunal or a chief. There can be little doubt that the latter system has developed out of the former; there are obvious instances of transition from the one to the other. Among the North-West-Central Queensland natives, for instance, in cases of major offences, such as murder, incest, or physical violence, the old men are only said to "influence" aboriginal public opinion.[70] It is an inconvenient, and in larger communities a difficult, procedure for the whole group to inflict punishments in common, hence the administration of justice naturally tends to pass into the hands of the leading men or the chief. But the establishment of a judicial authority within the society may also have a different origin. Very frequently judicial organisation {176} seems to have developed, not out of a previous system of lynch-law, but out of a previous system of private revenge.

[Footnote 70: Roth, _op. cit._ p. 141.]

An act of individual or family revenge is by itself, of course, an expression of private, not of public, feelings--of revenge, not of moral indignation. But the case is different with the _custom_ of revenge. We shall see in a following chapter that blood-revenge is regarded not only as a right, but, very frequently, as a duty incumbent upon the relatives of the slain person. So, also, revenge may be deemed a duty in cases where there is no blood-guiltiness. Among the Australian Geawe-gal tribe, for instance, the offender, according to the magnitude of his offence, was to receive one or more spears from men who were relatives of the deceased person; or the injured man himself, when he had recovered strength, might discharge the spears at the offender. And our authority adds, "Obedience to such laws was never withheld, but would have been enforced, without doubt, if necessary, by the assembled tribe."[71] The obligatory character of revenge implies that its omission is disapproved of. It is of course the man on whom the duty of vengeance is incumbent that is the immediate object of blame, when this duty is omitted; and the blame may partly be due to contempt, especially when there is a suspicion of cowardice. But behind the public censure there is obviously a desire to see the injurer suffer. Instances may be quoted in which the society actually assists the avenger, in some way or other, in attaining his object. Speaking of the Fuegians, M. Hyades observes:--"Nous avons entendu parler d'individus coupables de meurtre sur leur femme, par exemple, et qui, poursuivis par tout un groupe de familles, finissaient, quelquefois un an ou deux après leur crime, par tomber sous les coups des parents de la victime. Il s'agit là plutôt d'un acte de justice que d'une satisfaction de vengeance. Nous devons faire remarquer en outre que, dans ces cas, le meurtrier est abandonné de tous, et qu'il ne peut se soustraire que pendant un temps {177} relativement assez court au châtiment qui le menace."[72] Amongst the Central Eskimo, who have "no punishment for transgressors except the blood vengeance," a man has committed a murder or made himself odious by other outrages, "he may be killed by any one simply as a matter of justice. The man who intends to take revenge on him must ask his countrymen singly if each agrees in the opinion that the offender is a bad man deserving death. If all answer in the affirmative he may kill the man thus condemned, and no one is allowed to revenge the murder."[73] Among the Greenlanders, in cases of extreme atrocity, the men of a village have been known to make common cause against a murderer, and kill him, though it otherwise is the business of the nearest relatives to take revenge.[74] It is also noteworthy that, among the crimes which in savage communities are punished by the community at large, incest is particularly prominent. The chief reason for this I take to be the absence of an individual naturally designated as the avenger.

[Footnote 71: Fison and Howitt, _op. cit._ p. 282.]

[Footnote 72: Hyades and Deniker, _Mission scientifique du Cap Horn_, vii. 240 _sq._]

[Footnote 73: Boas, 'Central Eskimo,' in _Ann. Rep. Bur. Ethn._ vi. 582.]

[Footnote 74: Nansen, _Eskimo Life_, p. 163.]

Thus public indignation displays itself not only in punishment, but, to a certain extent, in the custom of revenge. In both cases the society desires that the offender shall suffer for his deed. Strictly speaking, the relationship between the custom of revenge and punishment is not, as has been often supposed, that between parent and child. It is a collateral relationship. They have a common ancestor, the feeling of public resentment.

But whilst public opinion demands that vengeance shall be exacted for injuries, it is also operative in another way. Though in some cases the resentment may seem to outsiders to be too weak or too much checked by other impulses, it may in other cases appear unduly great. As a matter of fact, we frequently find the practice of revenge being regulated by a rule which requires equivalence between the injury and the suffering inflicted in return for {178} it. Sometimes this rule demands that only one life shall be taken for one;[75] sometimes that a death shall be avenged on a person of the same rank, sex, or age as the deceased;[76] sometimes that a murderer shall die in the same manner as his victim;[77] sometimes that various kinds of injuries shall be retaliated by the infliction of similar injuries on the offender.[78] This strict equivalence is not characteristic of resentment as such.[79] There is undoubtedly a certain proportion between the pain-stimulus and the reaction; other things being equal, resentment increases in intensity along with the pain by which it is excited. The more a person feels offended, the greater is his desire to retaliate by inflicting counter-pain, and the greater is the pain which he desires to inflict. But resentment involves no accurate balancing of suffering against suffering, hence there may be a crying disproportion between the act of revenge and the injury evoking it.[80] As Sir Thomas Browne observes, a revengeful mind "holds no rule in retaliations, requiring too often a head for a tooth, and the supreme revenge for trespasses, which a night's rest should obliterate."[81] If, then, the rule of {179} equivalence is not suggested by resentment itself, this rule must be due to other factors, which intermingle with resentment, and help, with it, to determine the action. One of these factors, I believe, is self-regarding pride, the desire to pull down the humiliating arrogance of the aggressor naturally suggesting the idea of paying him back in his own coin; and it seems probable that the natural disposition to imitate, especially in cases of sudden anger, acts in the same direction. But besides this qualitative equivalence between injury and retaliation, the _lex talionis_ requires, in a rough way, quantitative equivalence, and this demand has no doubt a social origin. If the offender is a person with whose feelings men are ready to sympathise, their sympathy will keep the desire to see him suffer within certain limits; and if, under ordinary circumstances, they tend to sympathise equally with both parties, the injurer and the person injured, and, in consequence, confer upon these equal rights, they will demand a retaliation which is only equal in degree to the offence. By suffering a loss the offender compensates, as it were, for the loss which he has inflicted; and when equal regard is paid to his feelings and to those of his victim, it is deemed just that the loss required of him as a compensation should be equivalent to the loss for which he compensates, anything beyond equivalence being regarded as undeserved suffering. If this explanation is correct, the rule of equivalence must originally have been restricted to offences within the social group; for, according to early custom and law, only members of the same society have equal rights. In speaking of the tit-for-tat system prevalent among the Guiana Indians, Sir E. F. Im Thurn expressly says, "Of course all this refers chiefly to the mutual relations of members of the same tribe."[82] And when we find savages acting according to the same principle in their relations to other tribes, the reason for this may be sought partly in the strong hold which that principle has taken of their minds, and partly in the dangers accompanying intertribal revenge, {180} which make it desirable to restrict it within reasonable limits.

[Footnote 75: Krause, _Tlinkit-Indianer_, p. 245 _sq._ Macfie, _Vancouver Island and British Columbia_, p. 470. Foreman, _Philippine Islands_, p. 213 (Negrito and Igorrote tribes in the province of La Isabela). Low, _Sarawak_, p. 212 (Dyaks). von Langsdorf, _Voyages and Travels_, i. 132 (Nukahivans).]

[Footnote 76: Jagor, _Travels in the Philippines_, p. 213 (Igorrotes). Blumentritt, quoted by Spencer, _Principles of Ethics_, i. 370 _sq._ (Quianganes of Luzon). Munzinger, _Ostafrikanische Studien_, p. 243 (Marea). _Koran_, ii. 173.]

[Footnote 77: von Martius, _op. cit._ i. 129 (Brazilian Indians). Wallace, _Travels on the Amazon_, p. 499 (Uaupés). Schoolcraft, _Indian Tribes of the United States_, iii. 246 (Dacotahs). Steller, _Kamtschatka_, p. 355; Hickson, _A Naturalist in North Celebes_, p. 198 (Sangirese of Manganitu). Fraser, _Journal of a Tour through Part of the Him[=a]l[=a] Mountains_, p. 339 (Butias). Ellis, _History of Madagascar_, i. 371. Munzinger, _op. cit._ p. 502 (Barea and Kunáma). de Abreu, _Canary Islands_, p. 27 (aborigines of Ferro).]

[Footnote 78: Im Thurn, _op. cit._ p. 213 _sq._ (Guiana Indians). _Glimpses of the Eastern Archipelago_, p. 86 (Bataks). Arbousset and Daumas, _Tour to the North-East of the Colony of Good Hope_, p. 67 (Mantetis). Munzinger, _op. cit._ p. 502 (Barea and Kunáma). Post, _Afrikanische Jurisprudenz_, p. 27 (various other African peoples), de Abreu, _op. cit._ p. 71 (aborigines, of Gran Canaria).]

[Footnote 79: _Cf._ Tissot, _Le droit pénal_, i. 226; Steinmetz, _Ethnol. Studien zur ersten Entwicklung der Strafe_, i. 401; Makarewicz, _op. cit._ p. 13.]

[Footnote 80: von Martius, _op. cit._ i. 128 (Brazilian aborigines). Calder, in _Jour. Anthr. Inst._ iii. 21 (Tasmanians). Forbes, _A Naturalist's Wanderings in the Eastern Archipelago_, p. 473 (Timorese). Sarasin, _Forschungen auf Ceylon_, iii. 539 (Veddahs). Jacob, _Das Leben der vorislâmischen Beduinen_, p. 144 _sq._]

[Footnote 81: Browne, _Christian Morals_, iii. 12, p. 94.]

[Footnote 82: Im Thurn, _op. cit._ p. 214.]

The regulations to which the practice of revenge is subject, help us to understand the transition from revenge to punishment, and the establishment of a special judicial authority. As long as retaliation is in the hands of private individuals, there is no guarantee, on the one hand, that the offender will have to suffer, on the other hand, that the act of retaliation will be sufficiently discriminate.

The injured party may be too weak, or otherwise unable, to avenge himself. His readiest course, then, is to appeal to the chief for help. The chief, on his part, has an interest in interfering--he may of course expect a handsome reward for his assistance,[83]--and, in so far as the community at large wishes that the offender shall suffer, the chief may even be bound to interfere. Thus in the Sandwich Islands, the family or the friends of an injured person--who in cases of assault or murder were by common consent justified in taking revenge--used to appeal to the chief of the district or to the king, when they were too weak to attack the offender themselves.[84] Among the Wanyoro, according to Emin Pasha, should the murderer escape, the nearest relatives of the murdered man apply to the chief of the tribe to procure the punishment of the culprit.[85] The Indians of Brazil, when offended, sometimes bring their cause before the chief; but they do it seldom, since they consider it disgraceful for a man not to be able to avenge himself.[86] The judicial authority granted to the Basuto chief "also insures justice to foreigners, and to individuals who, having no relations, are deprived of their natural defenders and avengers."[87] In ancient Greece, in early times, special care was taken by the State for the protection of the weak and helpless, who otherwise had been unavenged.[88] In the Middle Ages, the {181} poor and the weak were placed under the King's protection; the intervention of royal justice, as Du Boys observes, "apparaissait comme un bienfait pour les faibles et un secours pour les opprimés."[89]

[Footnote 83: Steinmetz, _Rechtsverhältnisse_, p. 311. _Cf._ Brunner, _Deutsche Rechtsgeschichte_, i. 165.]

[Footnote 84: Ellis, _Tour through Hawaii_, p. 429.]

[Footnote 85: _Emin Pasha in Central Africa_, p. 86.]

[Footnote 86: von Martius, _op. cit._ i. 132.]

[Footnote 87: Casalis, _op. cit._ p. 226.]

[Footnote 88: Leist, _Græco-italische Rechtsgeschichte_, p. 372.]

[Footnote 89: **Du Boys, _Histoire du droit criminel de l'Espagne_, p. 237.]

Whilst resentment on behalf of injuries inflicted upon persons who are unable to avenge themselves has thus, to some extent, contributed towards the establishment of a central judicial and executive authority, the sympathy naturally felt for the object of an improper and immoderate revenge undoubtedly tended to bring about a similar result. The same feeling which checked indiscriminate revenge by establishing the rule of strict equivalence, restricted it once more, and in a more effective way, by referring the case to a judge who was less partial, and more discriminate, than the sufferer himself or his friends. Speaking of the feuds of the Teutons, Kemble remarks, "Setting aside the loss to the whole community which may arise from private feud, the moral sense of men may be shocked by its results: an individual's own estimate of the satisfaction necessary to atone for the injury done to him, may lead to the commission of a wrong on his part, greater than any he hath suffered; nor can the strict rule of 'an eye for an eye, and a tooth for a tooth,' be applied where the exaction of the penalty depends upon the measure of force between appellant and defender."[90] In the Island of Bali the judge steps in between the prosecutor and the person whom he pursues, "so as to restrain the indiscriminate animosity of the one, and to determine the criminality of the other."[91] Crawfurd, in his account of native customs in the Malay Archipelago, says that "the law even expressly interdicts all interference when there appears a character of fairness in the quarrel."[92] A Karen, we are told, always thinks himself right in taking the law into his own hands, this being the custom of the country, and "he is never interfered with, unless he is guilty of some {182} act contrary to Karen ideas of propriety, when the elders and the villagers interfere and exercise a check upon him."[93] Among the Basutos the authority of the chief is stated to be "sufficiently respected to protect criminated persons, until their cases have been lawfully examined."[94] Among the Californian Gallinomero the avenger of blood has his option between money and the murderer's life; "but he does not seem to be allowed to wreak on him a personal and irresponsible vengeance," the chief taking the criminal and executing the punishment.[95]

[Footnote 90: Kemble, _Saxons in England_, i. 268 _sq._]

[Footnote 91: Raffles, _History of Java_, ii. p. ccxxxvii.]

[Footnote 92: Crawfurd, _History of the Indian Archipelago_, iii. 120.]

[Footnote 93: Mason, in _Jour. Asiatic Soc. Bengal_, xxxvii. pt. li. 145. _Cf._ MacMahon, _Far Cathay and Farther India_, p. 188.]

[Footnote 94: Casalis, _op. cit._ p. 226.]

[Footnote 95: Powers, _Tribes of California_, p. 177.]

Besides the desire that the offender shall suffer and the desire that his suffering shall correspond to his guilt, there is a third factor of importance which has contributed to the substitution of punishment for revenge and to the rise of a judicial organisation. For every society it is a matter of great consequence that there should be peace between its various members. Though the system of revenge helps to keep down crime,[96] it also has a tendency to cause disturbance and destruction. Any act of vengeance which goes beyond the limits fixed by custom is apt to call forth retaliation in return. Among the Ossetes, says Baron von Haxthausen, "if the retaliation does not exceed the original injury the affair terminates; but if the wound given is greater than the one received, the feud begins afresh from the other side."[97] The custom of blood-revenge certainly does not imply that the avenger of unjustifiable homicide may himself be a proper object of retaliation;[98] but in the absence of a tribunal it may be {183} no easy thing to decide the question of guilt, and, besides, the dictate of custom may be overruled by passion. As a matter of fact, the blood-feud often consists of a whole series of murders, the revenge itself calling forth a new act of redress, and so on, until the state or hostility may become more or less permanent.[99] In the long run this will prove injurious both to the families implicated in the feud and to society as a whole, and some method of putting a stop to the feud will readily be adopted. One such method is to substitute the payment of blood-money for revenge; another is to submit the cause to an authority invested with judicatory power. Casalis tells us that the Basutos are often heard to say, "If we were to revenge ourselves, the town or community would soon be dispersed"; and he adds that the instinctive fear of the disorders that might arise from the exercise of individual law has induced them to allow the chief of the tribe a certain right over the person of every member of the community.[100]

[Footnote 96: Taylor, _Te Ika a Maui_, p. 96 (Maori). Im Thurn, _op. cit._ pp. 213, 330 (Guiana Indians). Burckhardt, _Bedouins and Wahábys_, p. 84, _sq._; Blunt, _Bedouins of the Euphrates_, ii. 207; Layard, _Discoveries in the Ruins of Nineveh and Babylon_, p. 305 _sq._ (Bedouins). Kohl, _Reise nach Istrien_, i. 409 _sq._ (Montenegrines). Stephen, _History of the Criminal Law of England_, i. 60 (Anglo-Saxons). Nordström, _Svenska samhälls-författningens historia_, ii. 228 (ancient Scandinavians). Steinmetz, _Ethnol. Studien zur ersten Entwicklung der Strafe_, ii. 125 _sqq._]

[Footnote 97: von Haxthausen, _Transcaucasia_, p. 411.]

[Footnote 98: Among the aborigines of Western Victoria, when life has been taken for life, the feud is ended (Dawson, _op. cit._ p. 70). Among the Greenlanders, if the victim of revenge "be a notorious offender, or hated for his bloody deeds, or if he have no relations, the matter rests"; but more frequently the act of vengeance costs the avenger himself his life (Cranz, _op. cit._ i. 178). Among the Bedouins, "if the family of the man killed should in revenge kill two of the homicide's family, the latter retaliate by the death of one. If one only be killed, the affair rests there and all is quiet; but the quarrel is soon revived by hatred and revenge" (Burckhardt, _Bedouins and Wahábys_, p. 86). In his book, _Das Leben der vorislâmischen Beduinen_, Dr. Jacob likewise observes (p. 144):--"Irrtümlich ist die Ansicht, dass Blut immer neues Blut fordere. Was für einen Getödteten ein Anderer erschlagen, so galt die Sache in der Regel damit für erledigt und abgetan." _Cf._ Achelis, _Moderne Völkerkunde_, p. 407, n. 1.]

[Footnote 99: Nelson, 'Eskimo about Bering Strait,' in _Ann. Rep. Bur. Ethn._ xviii. 293. Miklosich. 'Blutrache bei den Slaven,' in _Denkschriften d. kaiserl. Akademie d. Wissensch. Phil.-hist. Classe_, Vienna, xxxvi. 132; &c.]

[Footnote 100: Casalis, _op. cit._ p. 225. _Cf._ Boyle, _Adventures among the Dyaks of Borneo_, p. 217; Marsden, _op. cit._ p. 249 _sq._ (Rejangs).]