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2 Sully, Studies of Childhood, p. 280 sq.

3 Leslie, Among the Zulus and Amatongas, p. 146.

4 Hall, Arctic Researches, p. 569.

5 Dall, Alaska, p. 396.

On the other hand, it should be remembered that not every public habit is a custom, involving an obligation; certain practices, though very general in a society, may even be reprobated by almost every one of its members. The habits of a people must therefore be handled with discretion by the student of moral ideas. Yet when he has no reason to conclude as to some special habit that it is held obligatory, he may, probably always, be sure that it is either allowed, or, in spite of all assurances of its wickedness, that the disapproval of it is not generally very deep or genuine. In a community where lying is a prevailing vice, truthfulness cannot be regarded as a very sacred duty; and where sexual immorality is widely spread, the public condemnation of it always smacks of hypocrisy. Men’s standard of morality is not independent of their practice. The conscience of a community follows the same rule as the conscience of an individual. “Commit a sin twice,” says the Talmud, “and you will think it perfectly allowable.”6 Hence for the study of the inmost convictions of a nation, its “bad habits” form a valuable complement to its professed opinions.

6 Deutsch, Literary Remains, p. 58.

The dictates of custom being dictates of morality, it is obvious that the study of moral ideas will, to a large extent, be a study of customs. But at the same time it should be borne in mind that custom never covers the whole field of morality, and that the uncovered space grows larger in proportion as the moral consciousness develops. Being a rule of duty, custom may only indirectly be an expression of moral approval, by claiming, in certain cases, that goodness should be rewarded. But even when demanding praise, custom is not always a reliable exponent of merit; it includes politeness, and politeness is a great deceiver. Custom may compel us to praise a man for form’s sake, when he deserves no praise, and to thank him when he deserves no thanks. Moreover, custom regulates external conduct only. It tolerates all kinds of volitions and opinions if not openly expressed. It does not condemn the heretical mind, but the heretical act. It demands that under certain circumstances certain actions shall be either performed or omitted, and, provided that this demand is fulfilled, it takes no notice of the motive of the agent or omitter. Again, in case the course of conduct prescribed by custom is not observed, the mental facts connected with the transgression, if regarded at all, are dealt with in a rough and ready manner, according to general rules which hardly admit of individualisation. Yet the incongruity between custom and morality which ensues from these circumstances is on the whole more apparent than real. It is rather an incongruity between different moral standards. The unreflecting moral consciousness, like custom, cares comparatively little for the internal aspect of conduct. It does not ask whether a man goes to church on Sunday from a religious motive or from fear of public opinion; it does not ask whether he stays at home from love of ease or from dissent of belief and avoidance of hypocrisy. It is ready to blame as soon as the dictate of custom is disobeyed. The rule of custom is the rule of duty at early stages of development. Only progress in culture lessens its sway.

Finally, the moral ideas which are expressed in the customs of a certain circle of men are not necessarily shared by every one of its members. This may, in the present connection, be considered a matter of slight importance by him who regards morality as “objectively” realised in the customs of a people, and who denies the individual the right to a private conscience. But from the subjective point of view which I am vindicating, individual conviction has a claim to equal consideration with public opinion, nay frequently, to higher respect, representing as it does in many cases a higher morality, a moral standard more purified by reflection and impartiality. At the lower stages of civilisation, however, where a man is led by his feelings more than by his thoughts, such a differentiation of moral ideas hardly occurs. The opinions of the many are the opinions of all, and the customs of a society are recognised as rules of duty by all its members.

In primitive society custom stands for law, and even where social organisation has made some progress it may still remain the sole rule for conduct.7 The authority of a chief does not necessarily involve a power to make laws. Even kings who are described as autocrats may be as much tied by custom as is any of their subjects.

7 Cranz, History of Greenland, i. 170. Dall, op. cit. p. 381 (Tuski). Dobrizhoffer, Account of the Abipones, p. 95. Shooter, Kafirs of Natal and the Zulu Country, p. 101 sq. Holden, Past and Future of the Kaffir Races, p. 336. Mungo Park, Travels in the Interior of Africa, p. 16. Scaramucci and Giglioli, ‘Notizie sui Danakil,’ in Archivio per l’antropologia e la etnologia, xiv. 39. Earl, Papuans, p. 105 (Arru Islanders). Forbes, A Naturalist’s Wanderings in the Eastern Archipelago, p. 473 (Timorese). Dalton, Ethnology of Bengal, p. 51 (Manipuris). Rockhill, Land of the Lamas, p. 220 (Eastern Tibetans).

The Rejangs of Sumatra “do not acknowledge a right in the chiefs to constitute what laws they think proper, or to repeal or alter their ancient usages, of which they are extremely tenacious and jealous.” There is no word in their language which signifies law, and the chiefs, in pronouncing their decisions are not heard to say, “So the law directs,” but, “Such is the custom.”8 According to Ellis, “the veneration of the Malagasy for the customs derived from tradition, or any accounts of their ancestors … influences both their public and private habits; and upon no individual is it more imperative than upon their monarch, who, absolute as he is in other respects, wants either the will or the power to break through the long-established regulations of a superstitious people.”9 The king of Ashanti, although represented as a despotic monarch, is nevertheless under an obligation to observe the national customs which have been handed down to the people from remote antiquity, and a practical disregard of this obligation, in the attempt to change some of the old customs, cost one of the kings his throne.10 “The Africans,” says Mr. Winwood Reade, with special reference to Dahomey, “have sometimes their enlightened kings, as the old barbarians had their sages and their priests. But it is seldom in the power of the heads of a people to alter those customs which have been held sacred from time immemorial.”11 The Basutos, among whom “the chiefs have the right of making laws and publishing regulations required by the necessities of the times,” regard such laws, or molaos, as inferior to the mekhoas, “the use and wont,” which constitute the real laws of the country.12 Among the ancient Irish, there was no sovereign authority competent to enact a new law, the function of the king being merely, as chief of the tribal assembly, to see that the proper customs were observed.13

8 Marsden, History of Sumatra, p. 217.

9 Ellis, History of Madagascar, i. 359.

10 Beecham, Ashantee and the Gold Coast, p. 90 sq. Cf. Stuhlmann, Mit Emin Pascha ins Herz von Afrika, p. 523 (A-lūr).

11 Reade, Savage Africa, p. 52 sq.

12 Casalis, Basutos, p. 228.

13 Ancient Laws of Ireland, iii. p. lxxxvi. sq. Cherry, Growth of Criminal Law, p. 33.

In competition with law, custom frequently carries the day. In India, especially in the South, “custom has always been to a great extent superior to the written law.”14 In the Ramnad case, the Judicial Committee expressly declared that, “under the Hindu system of law, clear proof of usage will outweigh the written text of the law.”15 It was also a maxim of the Roman jurists that laws may be abrogated by desuetude or contrary usage;16 and in modern times the same doctrine is acted upon in Scotland.17 Moreover, when a custom cannot abrogate the law, it may still have a paralysing influence on its execution. According to the laws of European nations, a man who has killed another in a duel is to be treated as a homicide; yet wherever the duel exists as a custom, the law against it is ineffective. So it is on the Continent, and so it was in England in the eighteenth century, when a well-informed writer could affirm that he had “not found any case of an actual execution in England in consequence of a duel fairly fought.”18 In this instance the ineffectiveness of the law is owing to the fact that the law has not been able to abolish an old custom. But the superiority of custom also shows itself in cases where the law itself is getting antiquated, and a new custom, enforced by public opinion, springs up in opposition to it. Thus, contrary to law and earlier usage, it is nowadays the custom of certain European countries that a sentence of death is not carried into execution. Even “bad habits” tend to weaken the authority of the law. Probably the two most prominent civil vices of the Chinese are bribery and gambling. Against both these vices their penal code speaks with no uncertain sound; and yet, according to Professor Douglas, it is no exaggeration to say that if the law were enforced, it would make a clean sweep of ninety-nine of every hundred officials in the empire.19 Other illustrations of the same principle may be found much nearer home.

14 Burnell, quoted by Nelson, View of the Hindū Law, p. 136.

15 Mayne, Treatise on Hindu Law and Usage, p. 41.

16 Institutiones, i. 2. 11. Digesta, i. 3. 32.

17 Mackenzie, Studies in Roman Law, p. 54.

18 Quoted by Bosquett, Treatise on Duelling, p. 80. Cf. A Short Treatise upon the Propriety and Necessity of Duelling, printed at Bath in 1779. In 1808, however, Major Campbell was sentenced to death and executed for killing Captain Boyd in a duel (Storr, ‘Duel,’ in Encyclopædia Britannica, vii. 514).

19 Douglas, Society in China, p. 82.

Custom has proved stronger than law and religion combined. Sir Richard Burton writes of the Bedouins, “Though the revealed law of the Koran, being insufficient for the Desert, is openly disregarded, the immemorial customs of the Kazi al-Arab (the Judge of the Arabs) form a system stringent in the extreme.”20 So, also, the Turkomans are ruled, often tyrannised over, by a mighty sovereign, invisible indeed to themselves, but whose presence is plainly discerned in the word deb—“custom,” “usage.” Our authority adds:—“It is very remarkable how little the ‘Deb’ has suffered in its struggle of eight centuries with Mahommedanism. Many usages, which are prohibited to the Islamite, and which the Mollahs make the object of violent attack, exist in all their ancient originality.”21

20 Burton, Pilgrimage to Al-Madinah and Meccah, ii. 87.

21 Vámbéry, Travels in Central Asia, p. 310 sqq.

The laws themselves, in fact, command obedience more as customs than as laws. A rule of conduct which, from one point of view, is a law, is in most cases, from another point of view, a custom; for, as Hegel remarks, “the valid laws of a nation, when written and collected, do not cease to be customs.”22 There are instances of laws that were never published, the knowledge and administration of which belonged to a privileged class, and which nevertheless were respected and obeyed.23 And among ourselves the ordinary citizen stands in no need of studying the laws under which he lives, custom being generally the safe guiding star of his conduct. Custom, as Bacon said, is “the principal magistrate of man’s life,”24 or, as the ancients put it, “the king of all men.”25

22 Hegel, Philosophie des Rechts, § 211, p. 199.

23 Rein, Japan, p. 314.

24 Bacon, ‘Essay xxxix. Of Custom and Education,’ in Essays, p. 372.

25 Herodotus, iii. 38.

Many laws were customs before they became laws. Ancient customs lie at the foundation of all Aryan law-books. Mr. Mayne is of opinion that Hindu law is based upon customs which existed even prior to and independent of Brahmanism.26 The Greek word νόμος means both custom and law, and this combination of meanings was not owing to poverty of language, but to the deep-rooted idea of the Greek people that law is, and ought to be, nothing more and nothing less than the outcome of national custom.27 A great part of the Roman law was founded on the mores majorum; in the Institutes of Justinian, it is expressly said that “long prevailing customs, being sanctioned by the consent of those who use them, assume the nature of Laws.”28 The case was similar with the ancient laws of the Teutons and Irish.29

26 Mayne, op. cit. p. 4.

27 Ziegler, Social Ethics, p. 30. Schmidt, Ethik der alten Griechen, i. 201.

28 Institutiones, i. 2. 9.

29 Joyce, Social History of Ancient Ireland, i. 181.

The transformation of customs into laws was not a mere ceremony. Law, like custom, is a rule of conduct, but, while custom is established by usage and obtains, in a more or less indefinite way, its binding force from public opinion, a law originates in a definite legislative act, being set, as Austin says, by a sovereign person, or a sovereign body of persons, to a person or persons in a state of subjection to its author.30 By becoming laws, then, the customs were expressly formulated, and were enforced by a more definite sanction. It seems that the process in question arose both from considerations of social utility and from a sense of justice. Cicero observes that it was for the sake of equity that “laws were invented, which perpetually spoke to all men with one and the same voice.”31 From these points of view it was neither necessary nor desirable that more than a limited set of customs should pass into laws. There are customs which are too indefinite to assume the stereotyped shape of law.32 There are others, the breach of which excites too little public indignation, or which are of too little importance for the public welfare, to be proper objects of legislation. And there are others which may be said to exist unconsciously, that is, which are universally observed as a matter of course, and which, never being transgressed, are never thought of.

30 Austin, Lectures on Jurisprudence, i. 87, 181, &c.

31 Cicero, De officiis, ii. 12.

32 Cf. Aristotle, Ethica Nicomachea, v. 10. 6.

Laws which are based on customs naturally express moral ideas prevalent at the time when they are established. On the other hand, though still in existence, they are not necessarily faithful representatives of the ideas of a later age. Law may be even more conservative than custom. Though the latter exercises a very preservative influence on public opinion, it eo ipso changes when public opinion changes. Even among savages, in spite of their extreme regard for the customs of their ancestors, it is quite possible for changes to be introduced; the traditions of the Central Australian Arunta, for instance, indicate their own recognition of the fact that customs have varied from time to time.33 But the legal form gives to an ancient custom such a fixity as to enable it to survive, as a law, the change of public opinion and the introduction of a new custom. In all progressive societies, as Sir Henry Maine observes, social necessities and social opinion are always more or less in advance of law. “We may come indefinitely near to the closing of the gap between them, but it has a perpetual tendency to re-open.”34

33 Spencer and Gillen, Native Tribes of Central Australia, p. 12 sqq.

34 Maine, Ancient Law, p. 24.

The moral ideas of a people are less extensively represented in its laws than in its customs. This is a corollary of the fact that there are always a great number of customs which never become laws. Moreover, whilst law, like custom, directly expresses only what is obligatory, it hardly ever deals with merit, even indirectly. The Chinese have a method of rewarding and commemorating meritorious and virtuous subjects by erecting gates in their honour, and conferring upon them marks of public distinction;35 and the Japanese and Coreans award prizes in the form of money or silver cups or monumental columns to signal exemplars of filial piety, arguing that, if the law punishes crime, it ought also to reward virtue.36 In Europe we have titles and honours, pensions for distinguished service, and the like; but the distribution of them is not regulated by law, and has often little to do with morality.

35 de Groot, Religious System of China (vol. ii. book) i. 769, 789 sq.

36 Griffis, Corea, p. 236.

Law, like custom, only deals with overt acts, or omissions, and cares nothing for the mental side of conduct, unless the law be transgressed. Yet, as will be seen subsequently, though this constitutes an essential difference between law and the enlightened moral consciousness, it throws considerable light on the moral judgments of the unreflecting mind.

Being a general, and at the same time a strictly defined, rule of conduct, a law can even less than a custom make special provision for every case so as to satisfy the demand of justice. This disadvantage, however, was hardly felt in early periods of legislation, when little account was taken of what was behind the overt act; and at later stages of development, the difficulty was overcome by leaving greater discretion to the judge. The history of legal punishments in England, for instance, shows a change from a system which, except in cases of misdemeanour, left no discretion at all to judges, to a system under which unlimited discretion is left to them in all cases except those which are still liable to capital punishment—practically, high treason and murder.37 The study of law, then, must for our purpose be supplemented by the study of judicial practice.

37 Stephen, History of the Criminal Law of England, ii. 87.

Laws which represent public opinion are no more than customs safe exponents of the moral ideas held by particular members of the society. But on the other hand, there are cases in which a law, unlike a custom, may express the ideas, or simply the will, of a few, or even of a single individual, that is, of the sovereign power only. It is obvious that laws imposed upon a barbarous people by civilised legislators may differ widely from the people’s own ideas of right and wrong. For instance, when studying the moral sentiments of the Teutonic peoples from their early law-books, we must carefully set aside all elements of Roman or Christian origin. At the same time, however, it should be remembered that the moral consciousness of a people may gradually be brought into harmony with a law originally foreign to it. If the law is in advance of public opinion—as Roman law undoubtedly was in Teutonic countries—it may raise the views of the people up to its own standard by awaking in them dormant sentiments, or by teaching them greater discrimination in their judgments. And, as has been already noticed, what is forbidden and punished may, for the very reason that it is so, come to be regarded as wrong and worthy of punishment.

Finally, a law may enjoin or forbid acts which by themselves are regarded as indifferent from a moral point of view. This is, for instance, the case with the laws which require marriages to be celebrated at certain times and places only, and which forbid the cultivation of tobacco in England. Jurists divide crimes into mala in se and mala quia prohibita. The former would be wrong even if they were not prohibited by law, the latter are wrong only because they are illegal.

A law expresses a rule of duty by making an act or omission which is regarded as wrong a crime, that is, by forbidding it under pain of punishment. Law does not in all cases directly threaten38 with punishment—I say directly, since all law is coercive, and all coercion at some stage involves the possibility of punishment.39 Sanctions, or the consequences by which the sovereign political authority threatens to enforce the laws set by it, may have in view either the indemnification of the injured party, or the suffering of the injurer. In the latter case the sanctions are called punishments. But, though highly important, the distinction between indemnification and punishment is not absolute. A person who causes harm to another would hardly have to pay damages unless some kind of guilt or quasi-guilt were imputed to him; and, on the other hand, punishment may actually consist in the damages he has to pay. Moreover, the suffering involved in punishment must be regarded as a kind of indemnification in so far as it is intended to gratify the injured party’s craving for revenge. The pleasure of vengeance, says Bentham, “is a gain; it calls to mind Samson’s riddle—it is sweet coming out of the terrible, it is honey dropping from the lion’s mouth.”40 In cases where the injured party is allowed to decide whether the injurer shall be punished or not, or what punishment (within certain limits) shall be inflicted upon him, it is obvious that punishment is largely looked upon as a means of indemnification. However, the fact that such a privilege is granted to the injured party indicates the existence of some degree of sympathetic resentment in the public. Punishment, in all its forms, is essentially an expression of indignation in the society which inflicts it.41 Hence it is of extreme importance for the study of moral ideas, and calls for our careful consideration.

38 “Not every sovereign can make sure of enforcing his commands; and sometimes laws are made without even any great intention of enforcing them” (Pollock, Essays in Jurisprudence and Ethics, p. 9 sq.).

39 Cf. Stephen, op. cit. i. 2.

40 Bentham, Theory of Legislation, p. 309.

41 “Die Missbilligung ist das Wesentliche aller Strafe” (von Bar, Die Grundlagen des Strafrechts, p. 4). “La peine consiste dans une réaction passionnelle d’intensité graduée” (Durkheim, Division du travail social, p. 96).

By punishment I do not understand here every suffering inflicted upon an offender in consequence of his offence, but only such suffering as is inflicted upon him in a definite way by, or in the name of, the society of which he is a permanent or temporary member. This definition holds good whatever may be the opinion about the final object of punishment. Whether its purpose is, or is supposed to be, either reformation, or determent, or retribution, its immediate aim is always to cause suffering. We should not call it punishment if the reformation of the criminal were attempted, say, by means of hypnotism.

It is a common opinion that punishment, in this sense of the word, is a social institution of comparatively modern origin, which has sprung from, and gradually superseded, the earlier custom of individual or family revenge. This opinion may seem plausible to the student of European and Eastern law, but, as we shall see, the early history of civilised races is apt to give a somewhat erroneous idea of the evolution of punishment. Even among savages public indignation frequently assumes that definite shape which constitutes the difference between punishment and mere condemnation.42

42 See Steinmetz, Ethnologische Studien zur ersten Entwicklung der Strafe, ii. 327 sqq.; Makarewicz, Évolution de la peine, passim.

Savage punishment sometimes simply consists in publicly putting the offender to shame.

In Greenland the courts of justice were the public assemblies, which at the same time supplied the national sports and entertainments. Here “nith-songs” were used for settling all sorts of crimes or breaches of public order or custom, with the exception of those which could only be expiated by death; by means of cutting capers and singing, the offender was told of his faults, and the opposite virtues were praised to all who were present.43 The same institution is found, with only incidental differences, among several other tribes within and beyond the Arctic circle.44 And, knowing the sensitiveness of these peoples, we may assume that the punishment in question is by no means lenient. In Greenland “it now and then happens that some one or other, wounded, perhaps, by a single word from one of his kinsfolk, runs away to the mountains, and is lost for several days at least.”45 And Adair, speaking of the public jesting by which North American Indians used to punish young people who were guilty of petty crimes, says that “they would sooner die by torture, than renew their shame by repeating the actions.”46

43 Rink, Eskimo Tribes, p. 24 sq. Idem, Greenland, pp. 141, 150. Cranz, op. cit. i. 165 sq. Holm, ‘Ethnologisk Skizze af Angmagsalikerne,’ in Meddelelser om Grönland, p. 87.

44 Kane, Arctic Explorations, ii. 128 sq.

45 Nansen, Eskimo Life, p. 267 sq.

46 Adair, History of the American Indians, p. 429 sq.

In other instances the community as a whole expresses its indignation by inflicting suffering of a more material kind upon the culprit.

In certain Australian tribes, when a native for any transgression incurs the displeasure of his tribe, custom compels him to “stand punishment,” as it is called; that is, he stands with a shield at a fair distance, while the whole tribe, either simultaneously or in rapid succession, cast their spears at him. Their expertness generally enables those who are exposed to this trial to escape without serious injury, though instances of a fatal result occasionally occur; however, there is a certain propriety even in this extraordinary punishment, as the accuracy and force with which the weapons are thrown will depend very much on the opinion entertained of the enormity of the offence.47 Among the North-West-Central Queensland aborigines, though each individual, within certain limits, can do what he pleases, “he has to reckon not only with the particular person injured, or his relatives, but also, in some cases, with the whole camp collectively. Thus the camp as a body, as a camp council, will take upon itself to mete out punishment in crimes of murder, incest, or the promiscuous use of fighting-implements within the precincts of the camping-ground: death, and probably the digging of his own grave, awaits the delinquent in the former case, while ‘crippling,’ generally with knives, constitutes the penalty for a violation of the latter.” Again, if a woman makes herself obnoxious in the camp, especially to the female portion of it, she is liable to be set upon and “hammered” by her fellow-sisters collectively, the men on such occasions not interfering.48 Among the Bangerang tribe of Victoria, “any one who had suffered a wrong complained of it, if at all, at night aloud to the camp, which was silent and attentive. Then the accused was heard. Afterwards those who chose, men or women, expressed their views on the subject; and if general opinion pronounced the grievance a good one, the accused accepted the penalty sanctioned by custom.”49 Among various tribes in Western Victoria, “should a person, through bad conduct, become a constant anxiety and trouble to the tribe, a consultation is held, and he is put to death.”50 Among the Mpongwe, if a man murders another, he is put to death, not by the nearest of kin, but by the whole community, being either drowned or burned alive.51 Among the Hudson Bay Eskimo, “when a person becomes so bad in character that the community will no longer tolerate his presence he is forbidden to enter the huts, partake of food, or hold any intercourse with the rest. Nevertheless, as long as he threatens no one’s life, but little attention is paid to him. Should he be guilty of a murder, several men watch their opportunity to surprise him and put him to death, usually by stoning. The executioners make no concealment of their action and are supported by public opinion in the community.”52