LARGER IMAGE
Terror & Tyranny of Religion
Certain forms for the dispensation of justice, judging of crimes, and determining of punishments were developed. Thus arose the different forms of judicial procedure, which, for a long time bore a religious character. The deity was called upon to decide as to right and wrong—divinity in the form of natural forces. Hence the judgments of God through trial by water, fire, poison, serpents, scales, or—especially in Germany during the Middle Ages—combat, or decision by the divining eye, that was closely allied to the so-called trial by hazard. A peculiar variety of ordeal is that of the bier, according to which the body of a murdered man is called into requisition, the soul of the victim assisting in the discovery of the murderer. Ordeals are undergone sometimes by one individual, sometimes by two. An advance in progress is the curse, which takes the place of the ordeal, the curse of God being called down upon an individual and his family in case of wrongdoing or of perjury. The curse may be uttered by an individual in co-operation with the members of families. Thus arise ordeals by invocation and by oath with compurgators. Originally a certain period of time was allowed to pass—a month, for example—for the fulfilment of the curse. In later times, whoever took the oath—oath of innocence—was held guiltless. Witnesses succeeded to conjurers; divining looks were replaced by circumstantial evidence; and, instead of a mystic, a rational method of obtaining testimony was adopted. The development was not attained without certain attendant abuses; and the abolition of ordeal by God was among many peoples—notably the inhabitants of Eastern Asia, the American Indians, and the Germans of the Middle Ages—succeeded by the introduction of torture. In many lands torture stood in close connection with the judgment of God; in others it originated either directly or indirectly in slavery. According to the method of obtaining evidence by torture, the accused was forced through physical pain to disclosures concerning himself and his companions, and, in case he himself were considered guilty, to a confession. However barbarous and irrational, this system was employed in Latin and Germanic nations excepting England, until the eighteenth century, in some instances even until the nineteenth.
The Slow Building up of Law
Judgment was first pronounced in the name of God; in later times, in the name of the people or of the ruler who appeared as the representative of God. The principles of justice, the validity of which at first depends upon custom, are in later times proclaimed and fixed as commands of God. Thus systems of fixed right come into being first in the form of sacred justice, then as commands of God, and finally as law. Law is a conception of justice expressed in certain rules and principles. Originally there were no laws; the standard for justice was furnished to each individual by his own feelings; only isolated cases were recorded. As time advanced, and great men who strove to bring about an improvement in justice arose above the generality of mankind; when the ruling class became differentiated from the other classes; when it was found necessary to root out certain popular customs—then, in addition to the original collection of precedents, there arose law of a higher form: law that stood above precedent, that altered custom, and opened up new roads to justice. Great codes of law have not been compilations only; they have led justice into new paths. Originally a law was looked upon as an inviolable command of God, as unalterable and eternal; its interpretation alone was earthly and transitory. As years passed, men learned to recognise that laws themselves were transitory; and it became a principle that later enactments could alter earlier rules. The relations of later statutes to already established law, and how the laws of different nations influence one another, are difficult, much-vexed questions for the solution of which special sciences have developed—transitory and international law. Judgment and law are intimately concerned with justice, the conception of right as evolved from the double action of life and custom. To this development of justice is united an endeavour of the state or government not only to further welfare by means of the creation and administration of law, but also to take under its control civilising institutions of all sorts. This was originally a feature of justice itself; certain practices inimical to civilisation were interdicted and made punishable offences. Already in the Middle Ages systems of police played a great part among governmental institutions, especially in the smaller states. Subsequently the idea was developed that not only protection through the punishment of crime, but also superintendence of and promotion of the public weal, should be administered by law; and thus the modern state developed with its policy of national welfare. With this arose the necessity for a sharper distinction to be drawn between justice and the various actions of an administration; and thus in modern times men have come to the system—based on Montesquieu—of the separation of powers and independence of justice.
Justice varies according to the development of civilisation, and according to the function that it must perform in this development; in like manner every age creates its own material and spiritual culture. Every poet is a poet of his own time.
Right Way to View History
The notion of natural right, however unhistorical it was in itself, characterised a period of transition in so far as it enabled men to form a historical conception—a conception of what might be: for, by contrasting actual with ideal justice, we are enabled to escape the bonds of the opinions of a particular time, and to look upon such opinions and views objectively and independently. Yet it is certainly a foolish proceeding to consider an ideal, deduced principally from conceptions and opinions of the present, to be a standard by which to measure the value of historical events of all times, sitting in judgment over the great names of the past with the air of an inspector of morals. The office of the historian as judge of the dead is quite differently constituted. Every age must be judged in accordance with the relation which it bears to the totality of development; and every historical personage is to be looked upon as a bearer of the spirit of his day, as a servant of the ideas of his time. Thus it is quite as wrong to pronounce moral censure on the men of history, as it is wrong to judge an era merely according to its good or evil characteristics. A period must be estimated according to what it has either directly or indirectly accomplished for mankind.