The social regulations which we have thus far considered find their consummation in the legal system. This possesses no content independent of the various social institutions, but merely provides certain norms of action with a social sanction. As a result, these norms are protected against violation or are designated as regulations which, whenever necessary, are defended against violators by the use of external force. Thus, the legal system does not involve the outright creation of a social order. It consists primarily in the singling out, as definite prescriptions, of certain regulations that have already arisen in the course of social life, and that are for the most part already maintained by custom. The enforcement of these regulations is expressly guaranteed by society, and means are established whereby this pledge is to be redeemed. Thus, the most important social institutions—the family, the classes, the vocations, village settlements and cities, and also the relations of property, intercourse, and contract, which these involve—were already in existence before becoming constituent parts of a legal system. Moreover, the advance beyond custom and the settlement of difficulties case by case was not made suddenly or, much less, at the same time in all regions, but came only very gradually. The formulation of laws did not, as a rule, begin in connection with the political community and then pass down to the more restricted groups, ending with the single individual. On the contrary, law began by regulating the intercourse of individuals; later, it acquired authority over family relations, which had remained under the shelter of custom for a relatively long period; last of all, it asserted itself also over the political order. That is to say, the State, which is the social organization from which the legal system took its rise, was the very last institution in connection with which objective legal forms were developed. We may account for this by reference to a factor which played an important rôle from the very outset. After the legal system had once grown up out of custom and had subjected many of the important fields of the latter to its authority, it was able of itself to create regulations, which were thus from the very beginning legal prescriptions. Such primarily legal regulations arose in connection with conditions in which, frequently, the fact that there be some law was of more importance than the precise character of the law. But even in these cases the regulations were always connected with the larger body of law that was rooted in custom. This larger body of law was but supplemented by ordinances that were called into being by temporal and cultural conditions.
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.