Anthropology by Robert Ranulph Marett (top ten books to read txt) 📕

they are termed by the anthropologist, may often in large part correspond to impulses that are by no means dead in us, but rather sleep; and are hence liable to be reawakened, if the environment happens to supply the appropriate stimulus. Witness the fact that survivals, especially when the whirligig of social change brings uneducated temporarily to the fore, have a way of blossoming forth into revivals; and the state may in consequence have to undergo something equivalent to an operation for appendicitis. The study of so-called survivals, therefore, is a most important branch of anthropology, which cannot unfortunately in this hasty sketch be given its due. It would seem to coincide with the central interest of what is known as folk-lore. Folk-lore, however, tends to broaden out till it becomes almost indistinguishable from general anthropology. There are at least two reasons for this. Firstly, the survivals of custom amongst advanced nations, such as the ancient Greeks or the modern British, are to be interpreted mainly by comparison with the similar institutions still flourishing amongst ruder peoples. Secondly, all these ruder peoples themselves, without exception, have their survivals too. Their customs fall as it were into two layers. On top is the live part of the fire. Underneath are smouldering ashes, which, though dying out on the whole, are yet liable here and there to rekindle into flame.

So much for custom as something on the face of it distinct from law, inasmuch as it seems to dispense with punishment. It remains to note, however, that brute force lurks behind custom, in the form of what Bagehot has called "the persecuting tendency." Just a boy at school who happens to offend against the unwritten code has his life made a burden by the rest of his mates, so in the primitive community the fear of a rough handling causes "I must not" to wait upon "I dare not." One has only to read Mr. Andrew Lang's instructive story of the fate of "Why Why, the first Radical," to realize how amongst savages—and is it so very different amongst ourselves?—it pays much better to be respectable than to play the moral hero.

Let us pass on to examine the beginnings of punitive law. After all, even under the sway of custom, casual outbreaks are liable to occur. Some one's passions will prove too much for him, and there will be an accident. What happens then in the primitive society? Let us first consider one of the very unorganized communities at the bottom of the evolutionary scale; as, for example, the little Negritos of the Andaman Islands. Their justice, explains Mr. Man, in his excellent account of these people, is administered by the simple method of allowing the aggrieved party to take the law into his own hands. This he usually does by flinging a burning faggot at the offender, or by discharging an arrow at him, though more frequently near him. Meanwhile all others who may be present are apt to beat a speedy retreat, carrying off as much of their property as their haste will allow, and remaining hid in the jungle until sufficient time has elapsed for the quarrel to have blown over. Sometimes, however, friends interpose, and seek to deprive the disputants of their weapons. Should, however, one of them kill the other, nothing is necessarily said or done to him by the rest. Yet conscience makes cowards of us all; so that the murderer, from prudential motives, will not uncommonly absent himself until he judges that the indignation of the victim's friends has sufficiently abated.

Now here we seem to find want of social structure and want of law going together as cause and effect. The "friends" of whom we hear need to be organized into a police force. If we now turn to totemic society, with its elaborate clan-system, it is quite another story. Blood-revenge ranks amongst the foremost of the clansman's social obligations. Over the whole world it stands out by itself as the type of all that law means for the savage. Within the clan, indeed, the maxim of blood for blood does not hold; though there may be another kind of punitive law put into force by the totemites against an erring brother, as, for instance, if they slay one of their number for disregarding the exogamic rule and consorting with a woman who is all-one-flesh with him. But, between clans of the same tribe, the system of blood-revenge requires strict reprisals, according to the principle that some one on the other side, though not necessarily the actual murderer, must die the death. This is known as the principle of collective responsibility; and one of the most interesting problems relating to the evolution of early law is to work out how individual responsibility gradually develops out of collective, until at length, even as each man does, so likewise he suffers.

The collective method of settling one's grievances is natural enough, when men are united into groups bound together by the closest of sentimental ties, and on the other hand there is no central and impartial authority to arbitrate between the parties. One of our crew has been killed by one of your crew. So a stand-up fight takes place. Of course we should like to get at the right man if we could; but, failing that, we are out to kill some one in return, just to teach your crew a lesson. Comparatively early in the day, however, it strikes the savage mind that there are degrees of responsibility. For instance, some one has to call the avenging party together, and to lead it. He will tend to be a real blood-relation, son, father, or brother. Thus he stands out as champion, whilst the rest are in the position of mere seconds. Correspondingly, the other side will tend to thrust forward the actual offender into the office of counter-champion. There is direct evidence to show that, amongst Australians, Eskimo, and so on, whole groups at one time met in battle, but later on were represented by chosen individuals, in the persons of those who were principals in the affair. Thus we arrive at the duel. The transition is seen in such a custom as that of the Port Lincoln black-fellows. The brother of the murdered man must engage the murderer; but any one on either side who might care to join in the fray was at liberty to do so. Hence it is but a step to the formal duel, as found, for instance, amongst the Apaches of North America.

Now the legal duel is an advance on the collective bear-fight, if only because it brings home to the individual perpetrator of the crime that he will have to answer for it. Cranz, the great authority on the Eskimo of Greenland, naïvely remarks that a Greenlander dare not murder or otherwise wrong another, since it might possibly cost him the life of his best friend. Did the Greenlander know that it would probably cost him his own life, his sense of responsibility, we may surmise, might be somewhat quickened. On the other hand, duelling is not a satisfactory way of redressing the balance, since it merely gives the powerful bully an opportunity of adding a second murder to the first. Hence the ordeal marks an advance in legal evolution. A good many Australian peoples, for example, have reached the stage of requiring the murderer to submit to a shower of spears or boomerangs at the hands of the aggrieved group, on the mutual understanding that the blood-revenge ends here.

Luckily, however, for the murderer, it often takes time to bring him to book; and angry passions are apt in the meanwhile to subside. The ruder savages are not so bloodthirsty as we are apt to imagine. War has evolved like everything else; and with it has evolved the man who likes fighting for its own sake. So, in place of a life for a life, compensation—"pacation," as it is technically termed—comes to be recognized as a reasonable quid pro quo. Constantly we find custom at the half-way stage. If the murderer is caught soon, he is killed; but if he can stave off the day of justice, he escapes with a fine. When private property has developed, the system of blood-fines becomes most elaborate. Amongst the Iroquois the manslayer must redeem himself from death by means of no less than sixty presents to the injured kin; one to draw the axe out of the wound, a second to wipe the blood away, a third to restore peace to the land, and so forth. According to the collective principle, the clansmen on one side share the price of atonement, and on the other side must tax themselves in order to make it up. Shares are on a scale proportionate to degrees of relationship. Or, again, further nice calculations are required, if it is sought to adjust the gross amount of the payment to the degree of guilt. Hence it is not surprising that, when a more or less barbarous people, such as the Anglo-Saxons, came to require a written law, it should be almost entirely taken up by regulations about blood-fines, that had become too complicated for the people any longer to keep in their heads.

So far we have been considering the law of blood-revenge as purely an affair between the clans concerned; the rest of the tribal public keeping aloof, very much in the style of the Andamanese bystanders who retire into the jungle when there is a prospect of a row. But with the development of a central authority, whether in the shape of the rule of many or of one, the public control of the blood-feud begins to assert itself; for the good reason that endless vendetta is a dissolving force, which the larger and more stable type of society cannot afford to tolerate if it is to survive. The following are a few instances illustrative of the transition from private to public jurisdiction. In North America, Africa, and elsewhere, we find the chief or chiefs pronouncing sentence, but the clan or family left to carry it out as best they can. Again, the kin may be entrusted with the function of punishment, but obliged to carry it out in the way prescribed by the authorities; as, for instance, in Abyssinia, where the nearest relation executes the manslayer in the presence of the king, using exactly the same kind of weapon as that with which the murder was committed. Or the right of the kin to punish dwindles to a mere form. Thus in Afghanistan the elders make a show of handing over the criminal to his accusers, who must, however, comply strictly with the wishes of the assembly; whilst in Samoa the offender was bound and deposited before the family "as if to signify that he lay at their mercy," and the chief saw to the rest. Finally, the state, in the person of its executive officers, both convicts and executes.

When the state is represented by a single ruler, crime tends to become an offence against "the king's peace"—or, in the language of Roman law, against his "majesty." Henceforward, the easy-going system of getting off with a fine is at an end, and murder is punished with the utmost sternness. In such a state as Dahomey, in the old days of independence, there may have been a good deal of barbarity displayed in the administration of justice, but at any rate human life was no less effectively protected by the law than it was, say, in mediæval Europe.

The evolution of the punishment of murder affords the typical instance of the development of a legal sanction in primitive society. Other forms, however, of the forcible repression of wrong-doing deserve a more or less passing notice.

Adultery is, even amongst the ruder peoples, a transgression that is reckoned only a degree less grave than manslaughter; especially as manslaughter is a