Chapter VI: Savage Penal Laws

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