Chapter III: The Age of Heroes and Gods (3)

The transition from custom to law reflects the joint influence of _two_ factors, which, particularly at the outset, were themselves closely connected. The first of these factors consists in the rise of firmly established forms of rulership, which are indicative also of the transition leading to _States_; the other is the _religious_ sanction which was attached to those regulations that were singled out by the law from the broader field of custom. Both factors indicate that the heroic age properly marks the origin of the legal system, even though it be true that all such changes are gradual and that occasional beginnings of the legal system, therefore, may be found at an earlier period, in connection with the very ancient institution of chieftainship. As regards the external social organization and the religious life of the heroic age, these are characterized, respectively, by the development of strict forms of rulership and by the origin of a deity cult. Each of these social phenomena reinforces the other. The kingdom of the gods was but the terrestrial State projected into an ideal sphere. No less was the development of the legal system dependent upon the union of the two factors. Neither the external force of the political authority governing the individual nor the inner constraint of religious duty sufficed in itself to establish the tremendous power characteristic of the legal system from early times on. It is true that, at a later period, the feeling that law represents a religious duty gave way to the moral law of conscience. The latter, however, itself owes its origin to the increasing influence of the political authority which is at the basis of the legal system; moreover, as an inner motive reinforcing the external compulsion of the law, it continued to preserve a similarity to the religious source from which it sprang. True, a significant change occurred. During the early stages of legal development, the weight of emphasis fell on the religious aspect of law, whereas it later more and more shifted to the political side. At first, the entire body of law was regarded as having been given directly by the deity, as was the case, for example, with the Ten Commandments of Moses and with the Israelitic Priests' Code, which clothes even the most external modes of life in the garb of religious commands. Sometimes a twofold credit is given for the introduction of the legal system, in that the one who wields the power is regarded as administering justice both in his own name and as commissioned by the gods. An illustration of this is the Babylonian code of Hammurabi. It is, naturally, when the priests wield the authority that the laws are most apt to be ascribed exclusively to the gods. The tendency, on the other hand, to give the ruler a certain amount of credit for legislative enactments, is greatest whenever the ruler occupies also the position of chief priest. The direct impetus to such a union of priesthood and political authority is to be found in the rise of the legal system itself, for this resulted from a fusion of religious and political motives. The idea that the earthly ruler is the terrestrial representative of a world-governing deity, or, as occurs in extreme cases, that he is the world-governing deity himself, is, therefore, a conception that is closely bound up with the rise of political society and that receives pregnant expression in the earliest forms of the legal system. No trace of such a conception was associated with the chiefs of the totemic period. Their position was entirely distinct from that of the magicians, the shamans, and the medicine-men, who were the original representatives of the priestly class that later arose in the age of deity cults. But it is for this very reason that the mandates of the totemic chief cannot be said as yet to have constituted a legal system; they were commands which were given as occasion demanded, and which were determined partly by the will of the chief and partly by transmitted customs. Secular and religious motives are to be found in similar combination elsewhere, even among tribes that are usually regarded as peoples of nature, as, for example, particularly those of Polynesia. In cases such as these, however, there are present also the beginnings of a legal system, as well as its correlates, the fundamentals of a political organization and of a deity cult. Whether these are the remnants of a culture brought by these migratory peoples from their original Asiatic home, or whether they represent an independently achieved culture that has fallen into decay, we need not here inquire.

That the development of the legal system is dependent upon the first of these phenomena--that is, upon political organization--is directly apparent from the fact that the administration of justice in general presupposes two sources of authority. Here again the beginnings are to be found in the totemic age. During this period, the administration of justice was vested, in the first place, in a relatively restricted group of the older and experienced men, such as exercised authority over the older members of the horde even in pretotemic times. Judicial powers were assumed, in the second place, by individual leaders in the chase or in war. The authority of the latter, it is true, was temporary, frequently shifting with changing circumstances; it was all the more effective, however, for the very reason that it was centred in single individuals. Now, the initial step in the formation of a legal system--which, as already remarked, was at first concerned merely with what we would call civil justice--was taken when the quarrels of individuals came to be settled in the same way as were matters of common concern to the clan or tribe--namely, by the decisions of the two long-established authorities, the 'council of elders,' as they later continued to be called among many civilized peoples, and the individual leader or chieftain. Even in relatively primitive times, fellow-tribesmen or clansmen who disagreed as to the ownership of an object or perhaps as to whether or not some mutual agreement had been kept, and who preferred a peaceful decision to settlement by combat, were accustomed to seek the decision of the elders or of a man of commanding respect. Thus, these initial stages of legal procedure indicate that the earliest judge was an _arbitrator_; he was freely selected by the disputants, though he constantly became more firmly established in his position as a result both of his authority in the general affairs of the tribe and of tradition. We next find the _appointed_ judge, who owes his office to political authority, and who decides particular controversies, not because he has been asked to do so by the parties themselves but 'of right' and as commissioned by the State; supported as he is by the political power, his decision has compelling force. As soon as the State assumes the function of deciding the controversies of individuals, the judge becomes an _official_. Indeed, he is one of the first representatives of officialdom. For, in the early stages of political organization, all matters other than the quarrels of individuals are regulated by ancient customs, except in so far as war and the preparation for war involve conditions that necessarily place authority of an entirely different sort in the hands of particular individuals. Thus, together with the offices of those who, though only gradually, come to have charge of the maintenance of the military organization even in times of peace, the office of the judiciary represents one of the earliest of political creations. In it, we find a parallel to the division of power between the ruler and a separate council of experienced men, an arrangement that represents a legacy from the period of tribal organization, but that only now becomes firmly established. The individual judge and the college of judges both occur so early that it is scarcely possible to say whether either antedated the other. Affecting the development just described are two other conditions, capable of bringing about a division of judicial authority at an early time. One of these conditions is the connection of the state with deity cult, as a result of which the secular power is limited by the authority of the priesthood, whose chief prerogative comes to be penal justice. The second factor in the differentiation of judicial functions consists in the institution of chieftainship, one of the two characteristic features of political society. Chieftainship involves a tendency towards a delegation of the supreme judicial authority to the ruler. This is particularly the case during the first stages of political organization, which still reflect the fact that the external political power of the chieftain grew up out of the conditions attendant upon war. Even though the secular judiciary, which originated in the council of elders, or, in certain cases, the judicial office of the priest, also continues to be maintained, the ruler nevertheless reserves for himself the authority over the most important issues. Particularly in doubtful cases, in which the ordinary judge has no traditional norms to guide his decision, the 'king's court' intervenes in order, if necessary, to secure a recognition of the claim of reasonableness. This is especially apt to occur in connection with capital crimes. Hence it is that, even after penal law has once become a matter of general governmental control--which, as a rule, occurs only at a later stage of legal development--the final decision in criminal cases usually rests with the ruler. Generally, moreover, it is the ruler alone who has sufficient power to put an end to the blood-revenge demanded by kinship groups. Owing to the fact that, in his capacity of military leader, the ruler possesses power over life and death during war with hostile tribes, he comes to exercise the same authority in connection also with the feuds of his fellow-tribesmen. Modern States have retained a last remnant of this power in the monarch's right to pardon, an erratic phenomenon of a culture that has long since disappeared.

Thus, the State, as such, possesses an external power which finds its most direct expression--just as does the unity of the State--in the exercise of judicial authority on the part of the ruler. In the beginnings of legal development, however, law always possesses also a _religious sanction_. True, the above-mentioned unification of the offices of priest and judge or of the authority of priest and ruler--the latter of which sometimes occurs in connection with the former--may be the result of particular cultural conditions. This, however, but indicates all the more forcibly how permanent has been the religious sanction of law. Such a sanction is evidenced by the words and symbolisms that accompany legal procedure even in the case of secular judges and of the relations of individuals themselves. Not without significance, for example, is the solemnity manifested in the tones of those who are party to a barter, a contract, or an assignment of property. Indeed, their words are usually accompanied by express confirmations resembling the formulas of prayer and imprecation; the gods are invoked as witnesses of the transaction or as avengers of broken pledges. Because of the solemnity of the spoken word, speech was displaced but slowly by writing. Long after the latter art had been acquired, its use continued to be avoided, not only in the case of legal formulas, such as the above, but occasionally even in connection with more general legal declarations. In the Brahman schools of India, for example, the rules of legal procedure, as well as the hymns and prayers, were for centuries transmitted purely through memory; we are told, moreover, that in ancient Sparta it was forbidden to put the laws in writing. To an age, however, which is incapable of conceiving even a legal transaction except as a perceptual act, the spoken word by itself is inadequate to give the impression of reality. As an indication that he has acquired a piece of land, the purchaser lifts a bit of soil from the earth, or the vendor tosses a stalk of grain to him--a ceremony which is imitated in the case of other objects of exchange and which has led to the word 'stipulation' (from the Latin _stipulatio_, throwing of a stalk). Another symbol of acquisition is the laying on of the hand. Similar to it is the clasp of right hands as a sign of mutual agreement. By this act the contracting parties pledge their freedom in case they break the promise which they are giving. When the fact that the two parties lived at some distance from each other rendered the hand clasp impossible, the Germans were accustomed to exchange gloves. One who challenged another to a duel likewise did so by the use of a glove, even though his opponent was present. By throwing his glove before his opponent the challenger gave expression to the distance which separated him in feeling from his enemy. In this case, the symbol has changed from a sign of agreement to the opposite. All the symbols of which we have been speaking agree in having originally been regarded, not as symbols, but as real acts possessing certain magical potencies. When an individual, who is acquiring a piece of land, picks up a bit of soil while speaking the appropriate words, he intends to produce a magical effect upon the land, such that disaster will come to any one who may seek to deprive him of it. He who offers his hand in sealing a compact signifies that he is prepared to lose his freedom in case he fails to keep his word. For this reason the shaking of hands is sometimes supplemented by the extension of a staff--a special use of the magical wand which occurs particularly when the pledge is administered by a judge. In a second stage of development, the act loses the status of reality, but it remains associated with religious feelings. At a third stage, it becomes a mere matter of form, though the solemnity with which it envelops the transaction adds to the impressiveness of the latter and fixes it more firmly in memory.

Combined with the word, thus, is a gesture that faithfully reflects its meaning. Moreover, other individuals are summoned to witness the legal transaction. This is done, not so much that these persons may later be able to give definite testimony, as that they, too, shall hear the word and see the gesture, and so, in a sense, enhance the reality of that which is transpiring. Besides this oldest form of witness, who is not to testify regarding that which he has experienced, as occurs in later times, but who is merely present on the occasion of the legal transaction, there is the _compurgator_, who substantiates the oath of the man involved. The latter fortifies his statements by invoking the gods as witnesses. Now, the oath of the compurgator does not relate to the testimony of his companion, but merely to the companion himself; it is a pledge to share the punishment of the latter in case he swears falsely. As in battle, so also in calling upon the terrible powers whose vengeance is to fall upon the perjurer, companion stands protectingly by the side of companion. Thus, the oath itself is a ceremony both of cult and of magic. As a cult activity, the oath was originally given at the place where the cult was administered--that is, in the immediate presence of the gods; the method of procedure was to raise the fingers and to point them directly to the gods, who were regarded as witnesses of the act. The magical nature of the oath appears in the fact that the latter involved the conjuration of an object, which was to bring disaster upon him who took the oath in case he swore falsely. Thus, the Germans swore by their battle-steeds or their weapons, and, in so doing, they laid their hands upon these objects; or, instead of the latter, they used an oath-staff--one of the numerous metamorphoses of the magical wand--which was extended toward him who received the oath, whether the opposing party or the judge. This oath signified that the object by which the individual swore would bring ruin upon him in case he committed perjury. The oath, therefore, came to be a fixed and definitely prescribed means of judicial procedure, though this occurred only after deity cult effected a union of the two factors, cult and magic. Nevertheless, the beginnings of this development are to be found as early as the totemic age, and they approximate to the cult-oath particularly in those regions that practise ancestor worship. The Bantu, for example, swears by the head of his father or the cap of his mother, as well as by the colour of his ox. In all these cases, the intention is that the perjurer shall suffer the vengeance which the demon of the deceased or of the animal visits upon him who swears falsely.

Closely related in its motives to the oath is another legal institution, the _ordeal_. In the earliest form of the ordeal, the strife of individuals was settled by a duel. Such an ordeal was very similar to the sword-oath, at least among Indo-Germanic peoples. Just as the man who swore by his weapons invoked death by their agency in the indefinite future, so each of the participants in the duel sought to bring these magical powers into immediate effect in the case of his opponent. Not to him whose arm is the stronger, but to him who has the stronger cause, will the gods grant victory through the magic of his weapon. Like the oath, therefore, the ordeal was originally a method of legal procedure in civil cases. Like the oath, furthermore, it was, in its beginnings, a means whereby individuals settled their controversies independently of a judge. It is at this point that the punitive action of individuals gives way to public legal procedure. Originally, crimes against life and property were dealt with by individuals; the endeavour to secure the judgment of the gods by means of the duel was doubtless one of the earliest steps by which the penal process became a public procedure, and the punishment itself, therefore, became raised above the plane of mere revenge. Blood revenge involved an unexpected attack in the open or from ambush. To renounce this custom in favour of the duel, therefore, was in harmony with the character of the heroic age. For this was the period in which the ideal of manly honour was rapidly gaining strength, and in which, therefore, it was regarded as unworthy under any circumstances to take the life of a defenceless man. The principle accepted as self-evident in war, namely, that the person attacked have an opportunity to defend himself, became, in a warlike age, a maxim applying also to times of peace. Moreover, even though it be true of the ordeal as of the oath that, at the outset, cult was secondary to magical conjuration, nevertheless, the dominance of the latter varied with the degree in which the State freed penal justice from the passion for revenge on the part of individuals. The ordeal thus came to be more than merely a combat between the accuser and the accused. The judge in charge of the combat acquired the duty of determining guilt or innocence, and, as a result, the ordeal assumed other forms. Only the one who was accused was now involved. The ordeal changed from a magic combat into a _magic test_, which came to be regarded as a direct revelation of the decision of the deity. This led to the adoption of means of proof other than combat. It was obviously cult that caused penal justice as such to be taken out of the hands of private individuals. For this reason it was particularly sacrilege that demanded a magical judgment independent of the combat of individuals. In cases of sacrilege, the deity himself tested the assertions of the one who endeavoured to free himself from the charges of religious crime. The means for determining guilt or innocence were fire and water--the same agencies that had long been employed by religious cult for purposes of lustration. That the tests by water and by fire used in connection with the witchcraft cases of mediæval times still possessed a magical significance is unmistakable. If the witch sank in the water--that is, if she was received by the purifying element--she was guiltless. If the accused was not injured by holding a glowing iron in his hand or by walking barefooted over coals, this also was regarded as indicative of innocence. Apparently the underlying conception was that the deity who gave to water and fire the power of purifying a sinner from his guilt also communicated to them the power of freeing the innocent from an accusation and of withholding assistance from the guilty. Hence it is that while these modes of divine judgment were not, indeed, as common as was purification by means of water and fire, they nevertheless appeared again and again, so far as their fundamental characteristics are concerned. They were resorted to by the Germanic peoples, and were prevalent also in Græco-Roman antiquity, and in India; trial by water was likewise a custom in Babylonia, where it was prescribed by Hammurabi as a means by which a suspected person might free himself. We have noticed how, in the case of the ordeal and particularly of its earliest form, judicial combat, the legal controversies of individuals concerning rights relating to property, buying and selling and other agreements, came to be considered from the standpoint of _punishment_. This process is characteristic of the development of penal law in general.

9. THE DEVELOPMENT OF PENAL LAW.

As an institution protected by the State, the administration of penal law everywhere grew up out of civil law. The judge who was appointed by the State to arbitrate personal controversies developed into a criminal judge. Still later these two judicial offices became distinct. This separation began in connection with the most serious offences, such as seemed to demand a separate tribunal. The determining feature, in this instance, was, at the outset, not any qualitative characteristic of the offence but its gravity. Now, at the time when deity cults were at their zenith, the most serious crimes were held to be those connected with religion, namely, temple sacrilege and blasphemy. Only at a relatively late period were crimes against life and limb classed along with those affecting religion; to these were added, shortly afterwards, violations of property rights. That murder, though the most frequent crime of early culture, should not be penalized by political authority until so late a period, is directly due to the fact that it has its origin in the strife of individuals. In such a strife, each man personally assumes all consequences, even though these consist in the loss of his life. Even to slay a man from ambush is regarded as justifiable by primitive society if an individual is avenging a crime from which he has suffered. As family and kinship ties become stronger, the family or kin participates as a group in the quarrels of its individual members, just as it does in war against hostile tribes. A murder, whether or not it be an act of vengeance, is avenged by a fellow-member of the victim, either upon the murderer or upon some one of his kin, inasmuch as in this case also the group is regarded as taking the part of the individual. This is the practice of _blood-revenge_, a practice which antedates the heroic age but which nevertheless continues to exercise a powerful influence upon it. Blood-revenge is so closely bound up with totemic tribal organization that it was probably never lacking wherever any such system arose. Its status, however, was purely that of a custom, not that of a legal requirement. It was custom alone, and not political authority, that compelled one kinsman to avenge the death of another. It was custom also that sought to do away with the disastrous results of a continuous blood-feud by means of an arrangement that came to take the place of blood-revenge. This substitute was the 'wergild,' which was paid as an indemnity by the malefactor to the family of the one who had been murdered, and which thus maintained precisely the same relation to blood-revenge as did marriage by purchase to marriage by capture. In the former case, however, the substitution of a peaceful agreement for an act of violence gave the political authority its first occasion to exercise its regulative power. This first manifestation of power consisted in the fact that the political authority determined the amount which must be paid in lieu of the blood-guilt. With the institution of wergild the entire matter becomes one of civil law. Only one further step is necessary, and the law of contract will indirectly have established the penal authority of the State. This step is taken when the State _compels_ the parties to enter into an agreement on the basis of the wergild. The advance, however, was not made at a single bound, but came only through the influence of a number of intermediate factors. That which first demanded a legal determination of the amount of expiation money was the necessity of estimating the personal value of the one who had been murdered, according as the individual was free-born or dependent, of a high or of a low class, an able-bodied man or a woman. Such a gradation in terms of general social status suggested the propriety of allowing temporary and less serious injuries to life and limb to be compensated for on the basis of their magnitude. But the estimation of damages in such cases again made civil jurisdiction absolutely necessary.

Closely interconnected with this complex of social factors, and imposing a check upon the impulse for vengeance that flames up in blood-revenge, was a religious influence--the fear of contaminating by a deed of violence a spot that was sanctified by the presence of invisible gods. No violence of any kind was allowed within sacred precincts, particularly in places set apart for sacrifice or for other cult ceremonies; least of all was violence tolerated in the temple, for the temple was regarded as the dwelling of a deity. Such places, therefore, afforded protection to all who fled to them from impending blood-revenge or other sources of danger. The sacred place also stood under the protection of the community; any violation of it brought down upon the offender the vengeance of the entire group, for the latter regarded such sacrilege as a source of common danger. Thus, the protection of the _sanctuary_ came to be a legal right even at a time when retribution for the crime itself was left to the vengeance of individuals. The right of protection afforded by the temple, however, was sometimes held to exist also in the case of the dwellings of persons of distinguished power and esteem, particularly the dwellings of the chief and of the priest. Indeed, prior to the existence of public temples, the latter were doubtless the only places of refuge. In this form, the beginnings of a right of refuge date back even into the totemic age. At that early time, however, the protection was apparently due, not so much to directly religious factors, as to the personal power of the individual who afforded the refuge, or also, particularly in Polynesia, to the 'taboo' with which the upper classes were privileged to guard their property. But, since the taboo was probably itself of religious origin, and since the medicine-man, and occasionally also the chief, could utilize demoniacal agencies as well as his own external power, even the very earliest forms of refuge were of the general nature of religious protection. In some cases, the right of refuge eventually became extended so as to be connected not only with the property set apart for the chief or the priest but also with the homes of inferior men. This, however, was a relatively late phenomenon. Its origin is traceable to the cult of household deities, first of the ancestral spirits who guard domestic peace, and then of the specific protective deities of the hearth by whom the ancestral spirits were supplanted. As a rule, it was not the criminal but the visiting stranger who sought the protection of the house. The right to hospitality thus became also a religiously sanctioned right to protection. The guest was no less secure against the host himself than against all others. The right of protection afforded by the house, therefore, should probably be interpreted as a transference of the right of refuge inherent in sacred precincts. The protective right of the chief was doubtless the beginning of what in its complete development came to be household right in general.

The divine protection afforded by the sanctuary obviously offers but a temporary refuge from the avenger. The fugitive again encounters the dangers of blood-revenge as soon as he leaves the sacred precincts. Nevertheless, the time that is thus made to elapse between the act and its reprisal tempers the passion of the avenger, and affords an opportunity for negotiations in which the hostile families or clans may arrange that a ransom be paid in satisfaction of the crime that was committed. Moreover, the chief or the temple priest under whose protection the fugitive places himself, is given a direct opportunity for mediating in the capacity of an arbitrating judge, and later, as the political power gradually acquires greater strength, for taking the measures of retribution into his own hands. Revenge, thus, is changed into punishment, and custom is displaced by the norm of law, which grows up out of repeated decisions in the adjudication of similar cases.

Sojourn in a place of refuge resembles imprisonment in that it limits personal freedom. One might, therefore, be inclined to suppose that, through a further development other than that described above, the sanctuary led to a gradual moderation of punishment by introducing the practice of _imprisonment_. Such a supposition, however, is not borne out by the facts. At the time when the transition from the place of refuge into the prison might have taken place, the idea of reducing the death penalty to the deprivation of freedom was still remote. The value which the heroic age placed on the life of the individual was not sufficiently high to induce such a change, and the enforcement of prison penalties would, under the existing conditions, have appeared difficult and uncertain. Hence imprisonment was as yet entirely unknown as a form of punishment. Though the State had suppressed blood-revenge, it showed no less an inclination than did ancient custom to requite not only murder but even milder crimes with death. Indeed, inasmuch as the peaceful mode of settlement by ransom gradually disappeared, it might be truer to say that the relentlessness of the State was even greater than that of blood-revenge. The oldest penal codes were very strongly inclined to impose death penalties. That the famous Draconian laws of Athens became proverbial in this respect was due merely to the fact that other ancient legal codes, though not infrequently more severe, were still unknown. The law of King Hammurabi punished by death any one who stole property belonging to the court or the temple, or even to one of the king's captains; the innkeeper who charged her guests extortionate prices was thrown into the water, and the temple maiden who opened a wine-shop was burned to death. Whoever acquired possession of stolen goods, or sheltered a runaway slave, was put to death, etc. For every crime that was judged to be in any way serious, and for whose expiation a money ransom was not adequate, the law knew only the one penalty, death. The earliest law made no use of custody except in connection with civil justice. The debtor was confined in the house of the creditor. This simply enforced the pledge involved in the shaking of hands at the time when the debt was contracted--an act by which the debtor vowed to be responsible for his debt with his own person.

The confinement of the debtor was at first a matter that was left to individuals, and its original sanction was custom; later, however, it came under the supervision of the legal system of the State. This suggested the adoption of confinement in connection with other crimes, in which the death penalty appeared too severe a punishment and the exaction of money one that was too light, as well, primarily, as too dependent upon the wealth of the guilty individual. Contributory to this change, was a practice which, similarly to confinement, was also originally an arrangement between individuals, and was rooted in custom. I refer to the holding of individuals as pledges, to the hostage, who gave security with his own person for the promise of another. The hostage is of the nature of a forfeit, guaranteeing in advance the fulfilment of the obligation. For this reason the holding of hostages came to be practised not merely in the case of property contracts but in connection with every possible obligation of a private or a public nature. This development was furthered by the fact that hostages came to be held in times of war, and, as a result, were given also upon the assumption of public duties. In both cases, custody changed from a private arrangement into a public concern. This change made it possible for a judge to impose the penalty of imprisonment whenever the transgression did not appear to warrant death. Imprisonment is a penalty that admits of no fewer degrees than does a fine, and has the advantage of being independent of the irrelevant circumstance of the wealth of the one who is condemned. Moreover, the restriction of arbitrary deprivations of freedom in favour of custody on the part of the political power, makes it possible to hold a suspect whose case requires examination before a judicial verdict can be given. Thus arises the practice of confinement during investigation, an incidental form of legal procedure which is influenced by, and in turn reacts upon, the penalty of imprisonment. Such confinement makes it possible to execute the penalty of imprisonment in the case of those whom investigation shows to be guilty. But this is not its only important result. It also leads to those barbarous methods which, particularly during the early stages of this development, are connected with the infliction of the punishment itself as well as with the preceding inquisitorial activities. The public administration of justice is still affected by the passion for vengeance which comes down from the earlier period of blood-revenge. To this coarser sense of justice a merely quantitative gradation of punishment is not satisfactory; the punishment must rather be made to correspond qualitatively with the crime that has been committed. Hence the many different modes of prison punishment--more numerous even than the modes of inflicting the death penalty--and of the means of torture, which are often conceived with devilish cunning. These means of torture come to be used also in the inquisitional procedure; the endeavour to force a confession causes them to become more severe, and this in turn reacts upon the punishment itself. On the whole, the ultimate tendency, of imprisonment was greatly to restrict the death penalty and thus to contribute to more humane methods of punishment. Nevertheless, it is impossible not to recognize that this result was preceded by an increasing cruelty. The fact that the prisoner was under the control of the punitive authority for a longer period of time led to a multiplication of the means of punishment. How simple, and, one might say, how relatively humane, was blood-revenge, satisfied as it was to demand life for life, in comparison with the penal law of the Middle Ages, with its methods of forcing confession by means of the rack and of various forms of physical suffering and of death penalties!

The same is true of a further change inaugurated by the passing of blood-revenge into punishment. This change likewise led to a decided restriction of the death penalty, yet it also, no less than the forcing of confession, brought upon penal justice the stigma of systematic cruelty. The assumption of penal power on the part of the public judiciary, in conjunction with the possession of unlimited control over the person and life of the malefactor, led to the adoption of a principle which long continued to dominate penal justice. This principle was drastically expressed in the Priests' Code of the Israelites, "Eye for eye, tooth for tooth." True, this _jus talionis_ was already foreshadowed in the custom of blood-revenge, and yet the simple form which it here possessed, 'a life for a life,' made it a principle of just retribution, and not a demand sharpened by hate and cruelty. In the case of blood-revenge, moreover, the emotions of revenge were moderated by virtue of the fact that considerations of property played a rôle. Requital was sought for the loss which the clan sustained through the death of one of its members. Hence the clan might be satisfied with a money compensation, or, occasionally, with the adoption either of a fellow-tribesman of the murderer or, indeed, even of the murderer himself. In contrast with this, even the most severe physical injuries, so long as they did not result in death, were originally always left to the retaliation of the individual. This retaliation was sought either in direct combat, or, in the heroic age proper, in a duel conducted in accordance with regulations of custom. All this is changed as soon as the State abolishes blood-revenge and assumes jurisdiction over cases of murder. In the event of personal injuries, the judge determines the sentence, particularly if the individual is unable for any reason to secure retaliation--having been rendered helpless, for example, through his injury, or being prevented by the fact of class differences. Under such circumstances it is but natural that the principle, 'a life for a life,' which has been borrowed from the institution of blood-revenge and has been applied to the punishment for murder, should be developed into a scale of physical punishment representing the more general principle 'like for like.' He who has destroyed the eye of another, must lose his own eye; whoever has disabled another's arm, must have his arm cut off, etc. Other injuries then came to be similarly punished, even those of a moral character to which the principle "eye for eye, tooth for tooth" is not directly applicable. The hand which has been implicated in an act of sacrilege, such as the commission of perjury, is to be cut off; the tongue which has slandered, must be torn out. Originally, the death penalty was employed all too freely. Hence this substitution of a physical punishment which spared the life of the offender was doubtless in the direction of moderation. But, since this substitution gave rise to cruelties that resulted in the infliction of various sorts of death penalties, preceded and accompanied by tortures, its original effect became reversed, just as in the case of imprisonment. Moreover, the two forms of punishment--imprisonment and death--and the degree to which these were carried to excess differed according to civilization and race. The _jus talionis_ was the older principle of punishment. It is more closely bound up with man's natural impulse for retaliation, and therefore recurs even within humane civilizations, sometimes merely in suggestions but sometimes in occasional relapses which are of a more serious sort and are due to the passion for revenge. In fundamental contrast with the Mosaic law, Christianity repudiated the requital of like with like. Perhaps it was the fear of violating its own principle that led it, in its later development, to seek in the cruelties of severe prison penalties a substitute for the repressed impulse to revenge which comes to expression in coarser conceptions of justice. Nevertheless, this substitution was superior to the inflexible severity of the _jus talionis_ in that it more effectively enabled milder customs to influence the judicial conscience.

But there is still another respect in which the recedence of the principle of retaliation gradually led to an advance beyond the legal conceptions characteristic of the heroic age. The command for strict retribution takes into consideration merely the _objective_ injury in which a deed results; to it, it is immaterial whether a person destroys another's eye accidentally or intentionally. The same injury that he has caused must befall him. Whoever kills a man must, according to the law of Hammurabi, himself suffer death; if he kills a woman, he is to be punished by the death of his daughter. If a house collapses, the builder who constructed it must suffer death. For a successful operation, the physician receives a compensation; if the operation fails, the hand that has performed it is cut off. The same law determines both reward and punishment. Moreover, it includes within its scope even intellectual and moral transgressions. The judge who commits an error is to be dismissed from office in disgrace; the owner who neglects his field is to be deprived of it.

10. THE DIFFERENTIATION OF LEGAL FUNCTIONS.

The direct impetus to overcoming the defects that were inherent in penal justice as a result of its having originated in the conflicts of individuals, did not come from a clear recognition of differences in the character of the crimes themselves, but primarily from the fact of a gradual _division of judicial functions_. This is shown particularly by the development of Græco-Roman as well as of Germanic law. It is in the criminal court, which supersedes blood-revenge, that public authority is most directly conscious of its power over the individual. Hence the criminal court appears to be the highest of the courts, and the one that most deeply affects the natural rights of man. Its authority is vested solely in the ruler, or in a particularly sacred tribunal. This is due, not so much to the specific character of the crimes over which it has jurisdiction, as to the respect which it receives because it assumes both the ancient duty of blood-revenge and the function of exacting a requital for religious guilt. Similarly, other offences also gradually pass from the sphere of personally executed revenge or from that of the strife of individuals, and become subject to the penal authority of the State. The division of judicial authority, to which these tendencies lead, is promoted by the differentiation of public power, as a result of which the administration of justice is apportioned to various officials and magistrates, as well as are the other tasks of the State. It is for this reason that, if we consider their civilization as a whole, the constitutional States of the Occidental world were led to differentiate judicial functions much earlier than were the great despotic monarchies of the Orient. These monarchies, as the code of Hammurabi shows, possessed a highly developed husbandry and a correspondingly advanced commercial and monetary system, whereas they centralized all judicial functions in the ruler.

Thus, the State gains a twofold power, manifested, in the first place, in the very establishment of a judicial order, and, secondly, in the differentiation of the spheres of justice in which the authority of the State over the individual is exercised. This finally prepares the way for the last stage of development. The state itself becomes subject to an established legal order which determines its various functions and the duties of its members. There thus originates an officialdom, organized on fixed principles and possessing carefully defined public privileges. The people of the State, on the other hand, are divided into definite classes on the basis of the duties demanded of them as well as of the rights connected with these duties. These articulations of political society, which determine the organization of the army, the mode of taxation, and the right of participation in the government of the State, develop, as we have already seen, out of totemic tribal organization, as a result of the external conditions attendant upon the migrations and wars connected with the rise of States. But they also exhibit throughout the traces of statutes expressing the will and recording the decisions of individual rulers, though even here, of course, universal human motives are decisive. After the political powers of the State have been divided and have been delegated to particular officials and official colleges, and after political rights have been apportioned to the various classes of society, the next step consists in rendering the organization of the State secure by means of a _Constitution_ regulating the entire political system. In the shaping of the Constitution, it cannot be denied that individual legislators or legislative assemblies played a significant rôle. Nevertheless, it must be remembered that it is solely as respects the _form_ of State organization that the final and most comprehensive legal creation appears to be predominantly the result of the will acts of individuals. The _content_ of the Constitution is in every respect a product of history; it is determined by conditions which, in the last analysis, depend upon the general culture of a nation and upon its relations with other peoples. These conditions, however, are so complex that, though every form of Constitution and all its modifications may be regarded as absolutely involved in the causal nexus of historical life, the endless diversity of particular conditions precludes Constitutions from being classifiable according to any universal principle. Constitutions can at most be classified on the basis of certain analogies. The most influential attempt at a genetic classification of the various historical forms of government was that of Aristotle. But his classification, based on the number of rulers (one, a few, many, all) and on the moral predicates of good and evil (monarchy and tyranny, aristocracy and oligarchy, etc.), offers a purely logical schema which corresponds but partially with facts. True, it not infrequently happens that the rule of all--that is, democracy--gives way to the evil form of individual rulership--namely, tyranny. An aristocracy, however, or even a monarchy, may likewise develop into a tyranny. What the change is to be, depends upon historical conditions. Nor are monarchy, aristocracy, or the rule of the middle class forms of government that are ever actually to be found in the purity which logical schematization demands. Even in the Homeric State there was a council of elders and an assembly of freemen--an agora--in addition to the king. Indeed, if we go back still farther and inquire concerning those more primitive peoples of nature who are merely on the point of passing from tribal organization to a political Constitution, it might perhaps be nearer the truth to assert that democracy, and not monarchy, was the form of the early State. The fact is that the organization characteristic of the State as a whole is the product of historical factors of an exceedingly variable nature, and that it never adequately fits into any logical system that is based on merely a few political features. Even less may a logical schema of this sort be regarded as representing a universal law of development.

Thus, the State is indeed the ultimate source of all the various branches of the legal system. So far as the fundamental elements of its own Constitution are concerned, however, it is really itself a product of _custom_, if we take this term in its broadest sense, as signifying an historically developed order of social life which has not yet come under the control of political authority. The course of development is the very opposite of that which rationalistic theories have taught, ever since the time of the Sophists, concerning the origin of the State. These theories maintain that the legal system originated in connection with the State, and that it then acquired an application to the separate departments of life. The reverse is true. It is with the determination of the rights of individuals and with the settlement of the controversies arising from these rights that the legal power of the State takes its rise. It is strengthened and extended when the custom of personal retribution comes to be superseded by penal law. Last of all comes the systematic formulation of the political Constitution itself. The latter, however, is never more than a _development_; it is not a creation in the proper sense of the word. Even such States as the United States of North America and the new German Empire were not created by lawgivers, but were only organized by them in respect to details. The State as such is always a product of history, and so it must ever remain. Every legal system presupposes the power of a State. Hence the latter can never itself originate in an act of legislation, but can only transform itself into a legal order after it has once arisen.

11. THE ORIGIN OF GODS.

At first glance it may seem presumptuous even to raise the question as to how gods originated. Have they not always existed? one is inclined to ask. As a matter of fact, this is the opinion of most historians, particularly of historians of religion. They hold that the belief in gods is underived. Degenerate forms may arise, the belief may at times even disappear altogether or be displaced by a crude belief in magic and demons, but it itself can in no wise have been developed from anything else, for it was possessed by mankind from the very beginning. Were it true that the belief in gods represents an original possession of mankind, our question concerning the origin of gods would be invalidated. The assumption, however, is disproved by the facts of ethnology. There are peoples without gods. True, there are no peoples without some sort of supersensuous beings. Nevertheless, to call all such beings 'gods'--beings, for example, such as sickness-demons or the demons which leave the corpse and threaten the living--would appear to be a wholly unwarranted extension of the conception of deity. Unbiased observation goes to show that there are no peoples without certain conceptions that may be regarded as precursors of the later god-ideas. Nevertheless, there can be no doubt that there are some peoples without gods. The Veddahs of Ceylon, the so-called nature-Semangs and Senoi of Malacca, the natives of Australia, and many other peoples of nature as well, possess no gods, in our sense of the word. Because all of these primitive peoples interpret certain natural phenomena--such as clouds, winds, and stars--in an anthropomorphic fashion, it has been attempted time and again to establish the presence of the god-idea of higher religions. Such attempts, however, may be straightway characterized as a play with superficial analogies in which no thought whatsoever is taken of the real content of the god-conception.

Accepting the lead of ethnological facts, then, let us grant that there are stages in the development of the myth in which real gods are lacking. Even so, two opposing views are possible concerning the relation of such 'prereligious' conditions to the origin of the god-ideas essential to religion. Indeed, these views still actively compete with each other in the science of religion. On the one hand, it is maintained that the god-idea is original, and that belief in demons, totemism, fetishism, and ancestor worship are secondary and degenerate derivatives. On the other hand, the gods are regarded as products of a mythological development, and, in so far, as analogous to the State, which grew up in the course of political development out of the primitive forms of tribal organization. Those who defend the first of these views subscribe to a degeneration theory. If the ancestors reverenced in cult are degenerated deities, and if the same is true of demons and even of fetishes, then the main course of religious development has obviously been downward and not upward. The representatives of the second view, on the contrary, assume an upward or progressive tendency. If demons, fetishes, and the animal or human ancestors worshipped in cult antedate gods, the latter must have developed from the former. Thus, the views concerning the origin of gods may be classified as _theories of degeneration_ and _theories of development_.