Chapter XVI: Society (1)

Social Stages, 401—Family, 402—Morals of Lower Races,
405—Public Opinion and Custom, 408—Moral Progress,
410—Vengeance and Justice, 414—War, 418—Property,
419—Legal Ceremonies, 423—Family Power and Responsibility,
426—Patriarchal and Military Chiefs, 428—Nations, 432—Social
Ranks, 434—Government, 436.

In the reports of crimes which appear daily in the newspapers of our civilized land, such phrases often occur as _savage_ fury, _barbarous_ cruelty. These two words have come to mean in common talk such behaviour as is most wild, rough, and cruel. Now no doubt the life of the less civilized people of the world, the _savages_ and _barbarians_, is more wild, rough, and cruel than ours is on the whole, but the difference between us and them does not lie altogether in this. As the foregoing chapters have proved, savage and barbarous tribes often more or less fairly represent stages of culture through which our own ancestors passed long ago, and their customs and laws often explain to us, in ways we should otherwise have hardly guessed, the sense and reason of our own. It should be understood that it is out of the question to give here even a summary of the complicated systems of society: all that can be done is to put before the reader some of its leading principles in ancient and modern life.

Mankind can never have lived as a mere struggling crowd, each for himself. Society is always made up of families or households bound together by kindly ties, controlled by rules of marriage and the duties of parent and child. Yet the forms of these rules and duties have been very various. Marriages may be shifting and temporary pairing, or unions where the husband may have several wives, and the wife several husbands. It is often hard to understand the family group and its ties in the rude and ancient world. Thus it seems to us a matter of course to reckon family descent in the male line, and this is now put in the clearest way by the son taking the father’s surname. But in lower stages of civilization, on both sides of the globe, many tribes take the contrary idea as a matter of course. In most Australian tribes the children belong to the mother’s clan, not the father’s; so that in native wars father and son constantly meet as natural enemies. Chiefship often goes down in the royal mother’s line, as among the Natchez, who had their sun-temples in what is now Louisiana. Yet this wide-spread law of female descent, deep as it lies in the history of society, had been so lost sight of among the ancient civilized nations, that when Herodotus noticed it among the Lykians, who took their names from their mothers and traced their pedigrees through the female branches only, the historian fancied this was a peculiar custom, in which they were unlike all other people. In the savage and barbaric world there prevails widely the rule called by McLennan exogamy or marrying-out, which forbids a man to take a wife of his own clan—an act which is considered criminal, and may even be punished with death. It is a strange contrast to the popular idea that savage life has no rules, when we find Australian tribes where every man is bound to marry into the particular clan which is, so to speak, the wife-clan to his own. Among the Iroquois of North America the children took the clan-name or totem of the mother; so if she were of the Bear clan, her son would be a Bear, and accordingly he might not marry a Bear girl, but might take a Deer or Heron. Such laws appear also among higher nations who reckon descent in the male line. Thus in India a Brahman is not to marry a wife whose clan-name (her “cow-stall,” as they say) is the same as his; nor may a Chinese take a wife of his own surname. Though the family and tribe rules of the savage and barbaric world are too intricate to be fully discussed here, there are some instructive points to which attention should be called. Marriage is in early stages of society a civil contract. Thus, among the wild hunting-tribes of Nicaragua, the lad who wishes a girl for a wife kills a deer and lays it with a heap of firewood at the door of her parents’ hut, which symbolic act is his offer to hunt and do man’s work; if the gift is accepted, it is a marriage, without further ceremony. Among peoples of higher culture more formal promises and ceremonies come in, with feasts and gatherings of kinsfolk; and then, as in other important matters of life, the priest is called in to give divine blessing and sanction to the union. Where this is done, a wedding has come to be very different from what it was in the rough times of marriage by capture, such as might be seen in our own day among fierce forest tribes in Brazil, where the warriors would make forays on distant villages and by main force bring home wives. Ancient tradition knows this practice well, as where the men of Benjamin carry off the daughters of Shiloh dancing at the feast, and in the famous Roman tale of the rape of the Sabines, a legend putting in historical form the wife-capture which in Roman custom remained as a ceremony. What most clearly shows what a recognised old-world custom it was, is its being thus kept up as a formality where milder manners really prevail. It had passed into this state among the Spartans, when Plutarch says that though the marriage was really by friendly settlement between the families, the bridegroom’s friends went through the pretence of carrying off the bride by violence. Within a few generations the same old habit was kept up in Wales, where the bridegroom and his friends, mounted and armed as for war, carried off the bride; and in Ireland they used even to hurl spears at the bride’s people, though at such a distance that no one was hurt, except now and then by accident, as happened when one Lord Hoath lost an eye, which mischance seems to have put an end to this curious relic of antiquity. It was one of the consequences of increase of property in the world, that the practice of buying wives came in, as where a Zulu bargains with a girl’s people to let him have her perhaps for five oxen or ten. This was the custom in England among our barbaric forefathers, as appears in the West-Saxon law of Ine—“If a man buy a wife,” &c. Cnut somewhat later forbade the wife to be sold, but the husband might give something of his own will. It is an interesting problem in the history of law how the money once paid as the bride’s price passed into a gift or dower for her; some provision of this kind became necessary when the widow was no longer provided for by being taken, as she would have been in a ruder state of society, as a wife by her husband’s brother.

Marriage has been here spoken of first, because upon it depends the family, on which the whole framework of society is founded. What has been said of the ruder kinds of family union among savages and barbarians shows that there cannot be expected from them the excellence of those well-ordered households to which civilized society owes so much of its goodness and prosperity. Yet even among the rudest clans of men, unless depraved by vice or misery and falling to pieces, a standard of family morals is known and lived by. Their habits, judged by our notions, are hard and coarse, yet the family tie of sympathy and common interest is already formed, and the foundations of moral duty already laid, in the mother’s patient tenderness, the father’s desperate valour in defence of home, their daily care for the little ones, the affection of brothers and sisters, and the mutual forbearance, helpfulness, and trust of all. From the family this extends to a wider circle. The natural way in which a tribe is formed is from a family or group, which in time increases and divides into many households, still recognising one another as kindred, and this kinship is so thoroughly felt to be the tie of the whole tribe, that, even when there has been a mixture of tribes, a common ancestor is often invented to make an imaginary bond of union. Thus _kindred_ and _kindness_ go together—two words whose common derivation expresses in the happiest way one of the main principles of social life.

Among the lessons to be learnt from the life of rude tribes is, how society can go on without the policeman to keep order. It is plain that even the lowest men cannot live quite by what the Germans call “faustrecht,” or “fist-right,” and we call “club law.” The strong savage does not rush into his weaker neighbour’s hut and take possession, driving the owner out into the forest with a stone-headed javelin sent flying after him. Without some control beyond the mere right of the stronger, the tribe would break up in a week, whereas in fact savage tribes last on for ages. Under favourable circumstances, where food is not too scarce nor war too wasting, the life of low barbaric races may be in its rude way good and happy. In the West Indian islands where Columbus first landed, lived tribes who have been called the most gentle and benevolent of the human race. Schomburgk, the traveller, who knew the warlike Caribs well in their home life, draws a paradise-like picture of their ways, where they have not been corrupted by the vices of the white men; he saw among them peace and cheerfulness and simple family affection, unvarnished friendship, and gratitude not less true for not being spoken in sounding words; the civilized world, he says, has not to teach them morality, for though they do not talk about it, they live in it. At the other side of the world in New Guinea, Kops, the Dutch explorer, gives much the same account of the Papuans of Dory, who live in houses built on piles in the water, like the old lake-men of Switzerland; he speaks of their mild disposition, their inclination to right and justice, their strong moral principles, their respect for the aged and love for their children, their living without fastenings to their houses—for theft is considered by them a grave offence, and rarely occurs. Among the rude non-Hindu tribes of India, English officials have often recorded with wonder the kindliness and cheerfulness of the rude men of the mountains and the jungle, and their utter honesty in word and deed. Thus Sir Walter Elliot mentions a low poor tribe of South India, whom the farmers employ to guard their fields, well knowing that they would starve rather than steal the grain in their charge; and they are so truthful that their word is taken at once in disputes even with their richer neighbours, for people say “a Kurubar always speaks the truth.” Of course these accounts of Caribs and Papuans show them on the friendly side, while those who have fought with them call them monsters of ferocity and treachery. But cruelty and cunning in war seem to them right and praiseworthy; and what we are here looking at is their home peace-life. It is clear that low barbarians may live among themselves under a fairly high moral standard, and this is the more instructive because it shows what may be called natural morality. Among them religion, mostly concerned with propitiating souls of ancestors and spirits of nature, has not the strong moral influence it exerts among higher nations; indeed their behaviour to their fellows is little affected by divine command or fear of divine punishment. It has more to do with their life being prosperous or miserable. When want or the miseries of war upset their well-being, they (like their betters) become more brutal and selfish in their ways, and moral habits are at all times low among the comfortless hordes of savages whose daily struggle for existence is too harsh for the gentler feelings to thrive. Moreover, there is this plain difference between low and high races of men, that the dull-minded barbarian has not power of thought enough to come up to the civilized man’s best moral standard. The wild man of the forest, forgetful of yesterday and careless of to-morrow, lolling in his hammock when his wants are satisfied, has little of the play of memory and foresight which is ever unrolling before our minds the panorama of our own past and future life, and even sets us in thought in the places of our fellows, to partake of their lives and enter into their joys and sorrows. Much of the wrong-doing of the world comes from want of imagination. If the drunkard could see before him the misery of next year with something of the vividness of the present craving, it would overbalance it. Ofttimes in the hottest fury of anger, the sword has been sheathed by him across whose mind has flashed the prophetic picture of the women weeping round the blood-stained corpse. The lower races of men are so wanting in foresight to resist passion and temptation, that the moral balance of a tribe easily goes wrong, while they are rough and wantonly cruel through want of intelligent sympathy with the sufferings of others, much as children are cruel to animals through not being able to imagine what the creatures feel. What we now know of savage life will prevent our falling into the fancies of the philosophers of the last century, who set up the “noble savage” as an actual model of virtue to be imitated by civilized nations. But the reality is quite as instructive, that the laws of virtue and happiness may be found at work in simple forms among tribes who make hatchets of sharpened stones and rub sticks together to kindle fire. Their life, seen at its best, shows with unusual clearness the great principle of moral science, that morality and happiness belong together—in fact that morality is the method of happiness.

It must not be supposed that in any state of civilization a man’s conduct depends altogether on his own moral sense of right and wrong. Controlling forces of society are at work even among savages, only in more rudimentary ways than among ourselves. Public opinion is already a great power, and the way in which it acts is particularly to be noticed. Whereas the individual man is too apt to look to his own personal interest and the benefit of his near friends, these private motives fall away when many minds come together, and public opinion with a larger selfishness takes up the public good, encouraging the individual to set aside his private wishes and give up his property or even his life for the commonwealth. The assembled tribe can crush the mean and cowardly with their scorn, or give that reward of glory for which the high-spirited will risk goods and life. Travellers have remarked that the women, however down-trodden, know how to make their influence felt in this way, and many a warrior whose heart was failing him in face of the enemy, has turned from flight when he thought of the girls’ mockery when he should slink home to the village, safe but disgraced. This pressure of public opinion compels men to act according to custom, which gives the rule as to what is to be done or not done in most affairs of life. Explorers of wild countries, not finding the machinery of police they are accustomed to at home, have sometimes rashly concluded that the savages lived unrestrained at their own free will. We have here already noticed that this is a mistake, for life in the uncivilized world is fettered at every turn by chains of custom. To a great extent it is evident that customs have come into existence for the benefit of society, or what was considered so. For instance, it is generally held right in wild countries that hospitality shall be freely given to all comers, for every one knows he may want it any day himself. But whether a custom is plainly useful or not, and even when its purpose is no longer known, once established as a custom it must be conformed to. Savages may have finger-joints cut off, or undergo such long and severe fasts that many die; but often the only reason they can give for inflicting such suffering on themselves is that it was the custom of their ancestors. In some parts of Australia custom forbade to the young hunters, and reserved for the old men, much of the wild fowl and the best joints of the large game. No doubt this was in some measure for the public benefit, as the experienced elders, who were past the fatigue of hunting, were able to stay in camp, make nets and weapons, teach the lads, and be the repositories of wisdom and the honoured counsellors of the tribe. Nothing could prove more plainly how far society is, even among such wild men of the desert, from being under the mere sway of brute force.

Thus communities, however ancient and rude, always have their rules of right and wrong. But as to what acts have been held right and wrong, the student of history must avoid that error which the proverb calls measuring other people’s corn by one’s own bushel. Not judging the customs of nations at other stages of culture by his own modern standard, he has to bring his knowledge to the help of his imagination, so as to see institutions where they belong and as they work. Only thus can it be made clear that the rules of good and bad, right and wrong, are not fixed alike for all men at all times. For an example of this principle, let us observe how people at different stages of civilization deal with the aged. Some of the lower races take much care of their old folks even after they are fallen into imbecility, treating them with almost gentle considerateness and very commonly tending them till death, when respect to the living ancestor passes into his worship as an ancestral spirit. But among other tribes filial kindness breaks down earlier, as among those fierce Brazilians who knock on the head with clubs the sick and aged, and even eat them, whether they find their care too burdensome, or whether they really think, as they say, that it is kind to end a life no longer gladdened with fight and feast and dance. We realize the situation among roving tribes. The horde must move in quest of game, the poor failing creature cannot keep up in the march, the hunters and the heavily laden women cannot carry him; he must be left behind. Many a traveller has beheld in the desert such heartrending scenes as Catlin saw when he said farewell to the white-haired old Puncah chief, all but blind and shrunk to skin and bone, crouched shivering by a few burning sticks, for his shelter a buffalo-hide set up on crutches, for his food a dish of water and a few half-picked bones. This old warrior was abandoned at his own wish when his tribe started for new hunting-grounds, even as years before, he said, he had left his own father to die when he was no longer good for anything. When a nation settled in the agricultural state has reached something of wealth and comfort, there is no longer the excuse of necessity for killing or abandoning the aged. Yet history shows how long the practice was kept up even in Europe, partly with the humane intent of putting an end to lingering misery, but more through the survival of a custom inherited from harder and ruder times. The Wends in what is now Germany practised the hideous rite of putting the aged and infirm to death, cooking and eating them, much as Herodotus describes the old Massagetæ as doing. In Sweden there used to be kept in the churches certain clumsy wooden clubs, called “family-clubs,” of which some are still preserved, and with which in ancient times the aged and hopelessly sick were solemnly put to death by their kinsfolk. It is interesting to trace in the old German records the change from such hard ancient barbarism to gentler manners, when the infirm old house-father, dividing his substance among his children, is to sit henceforth well cared for in the “cat’s place” by the hearth. One of the marks of advancing civilization was the growing sense of the sacredness of human life, even apart from its use and pleasure, and under this feeling the cutting short of even a burdensome and suffering existence, which our ancestors resorted to without reproach, has come to be looked upon with horror.

It must be clearly understood also that the old-world rules of moral conduct were not the same towards all men. A man knew his duty to his neighbour, but all men were not his neighbours. This is very clearly seen in the history of men’s ideas of manslaughter and theft. The slaying of a man is scarcely held by the law of any people to be of itself a crime, but on the contrary it has been regarded as an allowable or praiseworthy act under certain conditions, especially in self-defence, war, revenge, punishment, and sacrifice. Yet no known tribe, however low and ferocious, has ever held that men may kill one another indiscriminately, for even the savage society of the desert or the jungle would collapse under such lawlessness. Thus all men acknowledge some law “thou shall not kill,” but the question is how this law applies. It is instructive to see how it works among those fierce tribes who approve the killing of men simply as a proof of valour. Thus the young Sioux Indian, till he had killed his man, was not allowed to stick the feather in his head-dress and have the title of brave or warrior; he could scarcely get a girl to marry him till he had “got the feather.” So the young Dayak of Borneo could not get a wife till he had taken a head, and it was thus with the skull or scalp which the Naga warrior of Asam had to bring home, thereby qualifying himself to be tattooed and to marry a wife, who had perhaps been waiting years for this ugly marriage-licence. The trophy need not have been taken from an enemy, and might have been got by the blackest treachery, provided only that the victim were not of the slayer’s own tribe. Yet these Sioux among themselves hold manslaughter to be a crime unless in blood-revenge; and the Dayaks punish murder. This state of things is not really contradictory; in fact its explanation lies in the one word “tribe.” The tribe makes its law, not on an abstract principle that manslaughter is right or wrong, but for its own preservation. Their existence depends on holding their own in deadly strife with neighbouring tribes, and thus they put a social premium on the warrior’s proof of valour in fight against the enemy, though in these degenerate days they allow the form to be meanly fulfilled by bringing in as a warrior’s trophy the head of some old woman or wretched waylaid stranger. In this simple contrast between one’s own people and strangers, the student will find a clue to the thought of right and wrong running through ancient history, and slowly passing into a larger and nobler view. The old state of things is well illustrated in the Latin word _hostis_, which, meaning originally stranger, passed quite naturally into the sense of enemy. Not only is slaying an enemy in open war looked on as righteous, but ancient law goes on the doctrine that slaying one’s own tribesman and slaying a foreigner are crimes of quite different order, while killing a slave is but a destruction of property. Nor even now does the colonist practically admit that killing a brown or black man is an act of quite the same nature as killing a white countryman. Yet the idea of the sacredness of human life is ever spreading more widely in the world, as a principle applying to mankind at large.

The history of the notion of theft and plunder follows partly the same lines. In the lower civilization the law, “thou shalt not steal,” is not unknown, but it applies to tribesmen and friends, not to strangers and enemies. Among the Ahts of British Columbia, Sproat remarks that an article placed in an Indian’s charge on his good faith is perfectly safe, yet thieving is a common vice where the property of other tribes or of white men is concerned. But, he says, it would be unfair to regard thieving among these savages as culpable in the same degree as among ourselves, for they have no moral or social law forbidding thieving between tribe and tribe, which has been commonly practised for generations. Thus, although the Africans within their own tribe-limits have strict rules of property, travellers describe how a Zulu war-party, who have stealthily crept upon a distant village and massacred men, women, and children, will leave behind them the ransacked kraal flaring on the horizon and return with exulting hearts and loads of plunder. The old-world law of a warlike people is well seen among the ancient Germans in Cæsar’s famous sentence, “Robberies beyond the bounds of each community have no infamy, but are commended as a means of exercising youth and diminishing sloth.” Even in the midst of modern civilization, a declaration of war may still carry society back to the earlier stages of plunder and prize-money. But in peace the safety of property as well as life is becoming more settled in the world. The extradition treaties by which criminals, deprived of their old refuge over the border, are now given up to justice in the country where they offended, mark the modern tendency to unite nations in one community, which recognises among all its members mutual right and duty.

Hitherto we have been looking at right and wrong chiefly as worked by men’s own moral feelings and by public opinion. But stronger means have at all times been necessary. It is now reckoned one of the regular duties of civilization to have a criminal law to punish wrong-doers with fine, imprisonment, blows, and even death. This system, however, only gradually arose in the world, and history can show plain traces of how it grew up from the early state of things when there were as yet no professional judges or executioners, but it was every man’s right and duty to take the law into his own hands, and that law was what we now call vengeance. When in barbaric life fierce passion breaks loose and a man is slain, this rule of vengeance comes into action. How it works as one of the great forces of society may well be seen among the Australians. As Sir George Grey says in his account of it, the holiest duty a native is called on to perform is to avenge the death of his nearest relation. If he left this duty unfulfilled, the old women would taunt him; if he were unmarried, no girl would speak to him; if he had wives, they would leave him; his mother would cry and lament that she had given birth to so degenerate a son, his father would treat him with contempt, and he would be a mark for public scorn. But what is to be done if the murderer escapes, as must in so wild and thinly peopled a country be easy? Native custom goes on the ancient doctrine that the criminal’s whole family are responsible; so that when it is known that a man has been slain, and especially when the actual culprit has escaped, his kinsfolk run for their lives; the very children of seven years old know whether they are of kin to the manslayer, and, if so, they are off at once into hiding. Here then we come in view of two principles which every student of law should have clearly in his mind in tracing its history up from its lowest stages. In the primitive law of vengeance of blood, he sees society using for the public benefit the instinct of revenge which man has in common with the lower animals; and by holding the whole family answerable for the deed of one of its members, the public brings the full pressure of family influence to bear on each individual as a means of keeping the peace. No one who sees the working of blood-vengeance can deny its practical reasonableness, and its use in restraining men from violence while there are as yet no judges and executioners. Indeed among all savages and barbarians the avenger of blood, little as he thinks it himself in his wild fury, is doing his part toward saving his people from perishing by deeds of blood. Unhappily his usefulness is often marred through ignorance and delusion turning his vengeance against the innocent. These Australians are among the many savages who do not see why anybody should ever die unless he is killed, so they account for what we call natural death by settling it that some enemy killed the sufferer by magic art, wounding him with an invisible weapon, or sending a disease-demon to gnaw his vitals. Therefore, when a man dies, his kinsmen set themselves to find out by divination what malignant sorcerer did him to death, and when they have fixed on some one as the secret enemy the avenger sets out to find and slay him; then of course there is retaliation from the other side, and a hereditary feud sets in. This is one great cause of the rancorous hatred between neighbouring tribes which keeps savages in ceaseless fear and trouble.

Passing to higher levels of civilization, among the nations of the ancient world we still find the law of blood-vengeance, but it is being gradually modified by the civilization which in time ousts it altogether. Thus the law of the Israelites, while still authorizing the avenger of blood, provides that there shall be cities of refuge, and that the morally innocent manslayer shall not be as the wilful murderer. Among nations where wealth has been gathered together, and especially where it has come to be measured by money, the old fierce cry for vengeance sinks into a claim for compensation. In Arabia to this day the earlier and later stages may be seen side by side; while the roaming Beduin tribes of the desert carry on blood-feuds from generation to generation with savage ferocity, the townsfolk feel that life can hardly go on with an assassin round every street-corner, so they take the blood-money and loose the feud. This state of things is instructive as being like that of our own early ancestors when the Teutonic law was still that a man took vengeance for hurt done to him or his, unless he compounded it. The Anglo-Saxon word for such composition was _wér-gild_, probably meaning “man-money,” 200 shillings for a free man, less for lower folk, and less for a Welshman than an Englishman. Again, where the rule of vengeance is a life for a life, lesser hurts are also repaid in kind, which is the Roman _lex talionis_, or “law of the like”—_retaliation_. This is plainly set forth in the Jewish law, life for life, eye for eye, tooth for tooth, wound for wound, stripe for stripe. It is still law in Abyssinia, where not long since a mother prosecuted a lad who had accidentally fallen from a fruit-tree on her little son and killed him; the judges decided that she had a right to send another son up into the tree to drop on the boy who had unintentionally caused the first one’s death, which remedy however she did not care to avail herself of. Of course retaliation came to be commuted into money, as when old English laws provide that, if any one happen to cut off the fist or foot of a person, let him render to him the half of a man’s price, for a thumb half the price of a hand, and so on down to 5_s._ for a little finger and 4_d._ for a little-finger nail. In the times we live in, justice has passed into a higher stage, where the State takes the duty of punishing any serious wilful hurt done to its citizens. Reading some murderous tale of a Corsican “vendetta,” we hardly stop to think of it as a relic of ancient law lingering in a wild mountain island. Yet our criminal law grew out of such private vengeance, as is still plain to those who attend to traces of the past, when they hear such phrases as “the vengeance of the law,” or think what is meant by the legal form by which a private person is bound over to prosecute, as though he must still be suing, as he would have done in long-past ages, for his own revenge or compensation. It is now really the State that is seeking to punish the criminal for the ends of public justice. The avenger of blood, once the guardian of public safety, would now be himself punished as a criminal for taking the law into his own hands, while the moralists, now that the conditions of society are changed, lay it down that vengeance is sinful.

Law, however, though it has so beneficially taken the place of private vengeance, has not fully extended its sway over the larger quarrels between State and State. The relation of private vengeance to public war is well seen among rude tribes, such as inhabit the forests of Brazil. When a murder is done within the tribe, then of course vengeance lies between the two families concerned; but if the murderer is of another clan or tribe, then it becomes a public wrong. The injured community hold council, and mostly decide for war if they dare; then a war-party sets forth, in which the near kinsmen of the murdered man, their bodies painted with black daubs to show their deadly office, rush foremost into the fight. Among neighbouring tribes the ordinary way in which war begins is by some quarrel or trespass, then a man is killed on one side or the other, and the vengeance for his death spreads into blood-feud and tribal war ever ready to break out from generation to generation. This barbaric state of things lasted far on into the history of Europe. It was old German law that any freeman who had been injured in body, honour, or estate might, with the help of his own people, avenge himself if he would not take the legal commutation; that is to say, he had the right of private war. It was a turning-point in English history when King Edmund made a law to restrain this “unrighteous fighting,” but it was not stopped at once, especially in Northumberland, and we know how it went on into modern times between clan and clan in the wild Scotch Highlands. Long after the mere freeman ceased to go to war with his neighbours, there were nobles who stood to their old right. As late as the time of Edward IV. Lord Berkeley and his followers fought a battle with Lord Lisle at Nibley Green in Gloucestershire. Lord Lisle was slain, and in the end Lord Berkeley compounded by a money payment to the widow. Freeman, who in his _Comparative Politics_ mentions this curious incident of fifteenth-century history, thinks it the last English example either of private war or the payment of the wér-gild. The law of England which forbids the levying of private war represents one of the greatest steps in national progress. The State now replaces, by the justice of legal tribunals, the barbaric expedients of private vengeance and private war. But State and State still fight out their quarrels in public war, which then becomes on a larger scale much what deadly feud used to be between clan and clan.

The civil law of property may, like the criminal law, be traced from the ideas of old times. A fair notion may be had of what early rules of property were like, by noticing what they are in the uncivilised world still. Among the lower races, the distinction which our lawyers make between real and personal property appears in a very intelligible way. Of the land all have the use, but no man can be its absolute owner. The simplest land-law, which is also a game-law, is found among tribes who live chiefly by hunting and fishing. Thus in Brazil each tribe had its boundaries marked by rocks, trees, streams, or even artificial landmarks, and trespass in pursuit of game was held so serious that the offender might be slain on the spot. At this stage of society in any part of the world, every man has the right to hunt within the bounds of his own tribe, and the game only becomes private property when struck. Thus there is a distinct legal idea of common property in land belonging to the clan or tribe. There is also a clear idea of family property: the hut belongs to the family or group of families who built it; and when they fenced in and tilled the plot of ground hard by, this also ceased to be common land, and became the property of the families, at least while they occupied it. To each family belonged also the hut-furniture, such as hammocks, mealing-stones, and earthen pots. At the same time personal ownership appears, though still under the power of the family, through the father or head. Personal or individual property was chiefly what each wore or carried—the man’s weapons, the ornaments and scanty clothing of both sexes, things which they had some power to do as they liked with during life, and at death very commonly took away with them to the world beyond the grave (see p. 346). Here then we find barbarians already acquainted with the ideas of common land, family freehold, family and personal property in movables, which run through the systems of old-world law. Not that they are worked out in the same way everywhere. Thus in the village communities which had so great a part in settling Asia and Europe, and whose traces still remain in modern England, not only the hunting-grounds and meadows were held in common, but the families did not even own the ploughed fields, which were tilled by common labour or re-allotted from time to time among the households, so that the family freehold did not reach beyond its house and garden-plot. At various times in history, the rise of military nations revolutionised the earlier ways of land-holding. In invaded countries, lands of the conquered were distributed by the king or leader to be held by his captains or soldiers doing military service in return; the greatest and best-known example is the feudal system of Europe in the Middle Ages. It is instructive to notice how in England, before the Norman Conquest, the folk-land, the common property of the state, was already passing into the hands of the king to grant at his pleasure. Or in a military state the sovereign may become the universal landlord, allowing his subjects to hold lands on payment of an annual tribute or tax—a system well known in ancient Egypt and modern India. In Roman history we find the state, or families owning large lands, letting portions of them as farms to tenants who paid part of the produce in return. This shows the beginning of rent, a thing unknown to primitive law. While these changes were coming on as to the land, movable property was becoming more and more important. War-captives kept as slaves to till the soil became part of the wealth of the family, and the pastoral life brought in cattle, not only for food, but to plough the fields. The manufacture of valuable goods, the growth of commerce, the accumulation of treasure, and the use of money, added other possessions. If now we look at our modern ways of dealing with property, it is seen what great changes we have made by taking it out of the hands of the family and allowing an individual owner to hold and dispose of it—an arrangement suited to our age of shifting trading enterprise. Even land is bought and sold by individuals, though the law, by making a field and cottage transferable by a different process and with greater formality and cost than a diamond necklace or a hundred chests of tea, keeps up traces of the old system under which it could only have changed hands, if at all, with difficulty and by the consent of many parties. Through all changes it is instructive to notice how far the old family system of property holds its place. This is well seen by considering what becomes of a man’s property when he dies. The two most usual arrangements made in early times are the simplest, namely, either that the family shall go on living on the undivided property, or that it shall be divided among the children, or sons. When the eldest son is patriarchal head of the family, to keep up this dignity he may have an extra or double portion for his “birth-right”; this is a well-known ancient rule, common to the Aryan and Semitic nations, for it is both in the Hindu laws of Manu and in Deuteronomy. In France at this day the ancient principle of division is legally enforced, and the family take their shares as a matter of right. In England the power of wills has become so great, that in theory a man may leave his property to whom he pleases; but practically this is kept within bounds by moral feeling and public opinion, which condemn it as an unnatural act for a man to strip his own children to endow a stranger or a hospital. If the Englishman dies without leaving a will, the law recognises the rights of his family by fairly dividing among them his personal property. It is otherwise with the land or real estate, which in most cases will pass to the eldest son. Why the law should thus allow the claims of the rest of the family to the money, but not to the land, is an interesting point of history. The reader of Maine’s _Ancient Law_ will find how, in Europe about a thousand years ago, lands held as fiefs came to pass to the eldest son, not by any means for the purpose of enriching him by disinheriting the others, but that the united kinsfolk might live upon the land and defend it under him as chief of the little clan. If in modern times the head of the family has become possessed of the family estate for his own use, this is because old laws working under new circumstances are apt to produce results which those who framed them never foresaw. Primogeniture did not prevail over the whole of England, but older rules of family inheritance have in some parts lasted on from times before feudalism. The best known of these is where at the father’s death the land is divided among the sons, as Domesday Book shows was usual in Edward the Confessor’s time. This is now known as gavelkind, or the custom of Kent, but it appears elsewhere; for instance, Kentish Town in the north of London is supposed to have its name from lands so held there. There even exists in England a rule of inheritance which seems to belong to a yet earlier state of society. This is the custom of borough-english, by which, for instance at Hackney or Edmonton, if a man die intestate the land passes to his youngest son. This right of the youngest, strange as it seems to us, is still found here and there in Europe and Asia. It is a reasonable law of inheritance of the settlers in a new country, where there is yet plenty of land to be had for the taking, and the sons as they grow up and marry go out and found new homesteads of their own. But the youngest stays at home and takes care of the old father and mother; he is, as the Mongols say, the “fire-keeper,” and at their death he naturally succeeds to the family home. This is one of the hundreds of cases of customs which seem arbitrary and unreasonable, because they have lost their sense by lasting on from the state of life to which they properly belonged.

In the old days before there were lawyers and law books, solemn acts and rights were made plain to all men by picturesque ceremonies suited to lay hold of unlettered minds. Many of these old ceremonies are still kept up and show their meaning as plainly as ever. For example, when two parties wish to make firm peace or friendship, they will go through the ceremony of mixing their blood, so as to make themselves blood-relations. Travellers often now ally themselves in such blood-brotherhood with barbarous tribes; an account of East Africans performing the rite describes the two sitting together on a hide so as to become “of one skin,” and then they made little cuts in one another’s breasts, tasted the mixed blood, and rubbed it into one another’s wounds. Thus we find still going on in the world a compact which Herodotus describes among the ancient Lydians and Scythians, and which is also mentioned in the Sagas of the old Northmen and the ancient Irish legends. It would be impossible to put more clearly the great principle of old-world morals, that a man owes friendship not to mankind at large but only to his own kin, so that to entitle a stranger to kindness and good faith he must become a kinsman by blood. With much the same thought even rude tribes hold that eating and drinking together is a covenant of friendship, for the guest becomes in some sort one of the household, and has to be treated as morally one of the family. This helps to explain the vast importance people everywhere give to the act of dining together. Among the millions of India at this day the very constitution of society turns on the caste rules whom a man may or may not eat with. Among the marriage ceremonies of the world, one well known in the far East is that the couple by eating together out of one dish become man and wife. How ceremony expresses meaning in still more striking metaphor is seen in the Hindu marriage, where the skirts of the bridegroom and bride’s garments are tied together as a sign of union, and the bride steps on a stone to show she will be as firm as stone. A custom is described among English vagrants of the last century, where a man and woman would join hands across the body of a dead beast, thus promising that they would be joined till death should part them. Among the dramatic ceremonies known to European law is the scene in an ancient Roman law-court, where a man put in his claim to a slave by stepping forward and touching him with a rod which represented a spear; or when in old Germany a piece of land was transferred by the owner handing over a sod of the turf with a green twig stuck up in it; or when in feudal times the vassal placed his hands between the lord’s, and so “putting himself in his hands” became his man.

There were ceremonies in old-world law which were more than such gesture-language. Barbaric law early began to call on magical and divine powers to help in the difficult tasks of discovering the guilty, getting the truth out of witnesses, and making a promise binding. This led to the wide-spread system of ordeals and oaths. Some ordeals have really served to discover truth by their effect on the conscience of the evil-doer. It is thus with the mouthful of rice taken by all of a suspected household in India, which the thief’s nervous fear often prevents him from swallowing. This used to be done in England with the corsnæd or trial-slice of consecrated bread or cheese; even now peasants have not forgotten the old formula, “May this bit choke me if I lie!” Another of the few ordeals that linger in popular memory may be seen when, in some out-of-the-way farmhouse, all suspected of a theft are made to hold a bible hanging to a key, which is to turn in the hands of the thief; this keeps up a form of divination practised in the classic world with a sieve hanging by the points of an open pair of shears. Ordeals have had their day, and are now discarded from the laws of the most civilised nations. Nowadays one has to go to such countries as Arabia to find the ordeal by hot iron recognised by law, as it was in England in the days when the legend was told of Queen Emma walking over the red-hot ploughshares; the conjurors now go through this ancient performance as a circus-show. Yet even of late years, English rustics have been known to duck some wretched old woman supposed to be a witch, little knowing that they were keeping up the ancient water-ordeal, where the sacred element rejects the wrong and accepts the right, so that the guilty floats and the innocent sinks—a judicial rite which forms part of the old Hindu law-book of Manu, and which in English law, till the beginning of the 13th century, was a legal means of trying those accused of murder or robbery. Ordeals by which the taker brings down present harm on himself if he is guilty, are of much the same nature as oaths. It is usual, however, for oaths to call down future punishment, in this life or after death, as when, in Russian law-courts in Siberia, the curious spectacle may be seen of bringing in a bear’s head that an Ostyak may bite at it, thereby calling on a bear to bite him if he is forsworn. The legal oaths in our own country bear in their gestures the traces of high antiquity. In Scotland the witness holds up his hand toward heaven, the gesture by which Greek and Jew took the supreme Deity to witness, and called down divine vengeance on the perjurer. In England the kissing of the book comes from the practice of touching a halidome, or sacred object, as an ancient Roman touched the altar, or Harold the casket of relics. The form “So help me God,” is inherited from ancient Teutonic-Scandinavian law, under which the old Northman, touching the blood-daubed ring on the altar, swore “So help me Frey, and Niordh, and the almighty god” (that is, Thor). The first and last of these are the two old English gods whose names we keep up in _Friday_ and _Thursday_.