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VII: Judging

The slow and difficult establishment of the judicial method of settling disputes has been greatly furthered by the belief that behind the decisions of the human tribunal lies ‘a judgement of God’. Certain offences have always counted as sins rather than mere crimes against the community; so that, for instance, incest, the shedding of kinly blood, and witchcraft have been treated as pollutions bringing a curse on all unless the sinner should be removed by excommunication or death. Other wrongs such as homicide, theft, and adultery at first are righted in rather haphazard fashion under a system of so-called private justice; but in the long run the public authority, largely assisted by religious institutions such as the ordeal and the oath, takes over the entire administration of law, both criminal and civil.

Government and the administration of justice are functions so closely allied that in practice they are likely to be vested, at any rate ultimately, in the same sovereign authority. At the same time, the province of law, in its civil and criminal aspects taken together, is more narrowly defined; so that, whereas ruling has for its object the attainment of the common welfare in general, so far as it depends on concerted action, judging is needed only as a means of preventing the failure of such concerted action through disputes or breaches of the public order. No doubt it falls within the province of the legislator to prescribe duties as well as to delimit rights; so that to a corresponding extent a positive character might be assigned to the office of the judge, as one who instructs and educates, though it be by way of a discipline. But the most constructive of his decisions are ineffectual, unless backed by a threat. The strong arm of the law cannot help the just, except by hurting the unjust.

Whereas, then, government, in company with morality and religion, does not rest on fear alone—a control that would be altogether unsuited to the free and adventurous spirit of Man, which responds far better to leadership from in front than to any stimulation at the hinder end—justice in its executive form cannot dispense with its rods and axes; so long at all events as judging and the enforcement of the resulting judgement are treated as complementary parts of the full process. In short, the differentia of law consists in this association with a sanction. We may expect, therefore, that the key to its historical development will be found to lie in a study of the nature and origin of this penal instrument.

Now a sanction, in the original sense of the word as employed by Roman law, is a conditional curse. By way of solemn warning, the possible law-breaker is apprised of his fate in the anticipatory judgement SACER ESTO—let him be tabooed as unclean. For the unclean and the holy are alike comprehended within the notion of the sacred, not only for the Roman, but wherever taboo or its equivalent is recognized, as happens almost universally throughout the primitive world. We can assume, if we like, a theoretical starting-point in some awe of the uncanny, which regards it as little other than a sign of the presence of some neutral force that, for the unwary at all events, is just as likely to prove hurtful as helpful. In the real world of savagery as we know it, however, this pure ambivalence, as Freud would term it, which attaches to the sacred in the sense of ‘whatever defeats reasonable expectation’, has invariably become more or less differentiated by a sort of departmentalization of its good and bad aspects.

The deepest cleavage is that which separates the legitimate from the illegitimate exploitations by Man of the power lurking behind such mysterious manifestations; for that they involve power is sufficiently attested by their capacity to move the feelings so strongly. Now the sorcerer for his private ends uses spells to destroy his neighbours offers a plain case of behaviour that is contrary to the law. Public opinion in any savage community, not so decadent as to have lost all sense of the conditions off its own well-being, is quite unanimous on the point; while it is likely to be almost equally unanimous in supposing that there is something real in the pernicious influence which a competent professor of the black art can put into operation. These, then, are plain bedevilments, whether an explicit doctrine of devils has been excogitated in order to account for the troubles that overtake suggestible persons, or a more or less impersonal nature is attributed to the sinister agency. In such a case the line can be drawn sharply between good and evil; so that it is agreed on all sides that the sorcerer as such is a pest who deserves to die the death.

No doubt it is often hard in practice to fasten such a character on a given individual; and it may even be that dark hints of what unpleasant things he might do, if he chose, help to make up the spiritual armour of the more unscrupulous candidate for tribal preponderance, so far as it is founded on a ius nocendi. But, whether he exists in recognizable fact, or simply haunts the popular imagination as a dreadful possibility, the maleficent trafficker in the occult is marked off from those who have dealings with it for worthier ends as definitely unfit for human society. Thus many Australian languages have a special word, usually translated ‘evil magic’, for what a Christian might render as ‘the Devil and all his works’.1 Or, again, in his account of the Huron notion of orenda, which sums up the wonder-working activity manifested in any kind of mystic experience by means of a term which would seem literally to mean ‘song’, or ‘spell’, Hewitt notices that a separate expression, otgon, is used to distinguish such an exercise of orenda as is ‘specifically malign and destructive’. He adds the curious observation that otgon would seem to be gradually displacing orenda, as if the misuse of supernatural power produced the more lasting impression on the native mind.2 If this be indeed so, however, one would be inclined to infer that a certain pessimism, engendered by lack of faith in their traditional rites, had overtaken a people whose self-confidence has inevitably decayed with the loss of their political independence.

Given, on the other hand, a savage tribe in being, and fully master of its fate, its leaders in all their official contacts with the unseen will necessarily be doing their best to secure the public welfare; so that the power which it is sought to move cannot but correspondingly wear an aspect that is, at least officially, benign. Moreover, in the static State there will be neither individual doubters, nor an organized opposition to the government of the moment. Whatever custom decrees holds absolutely for one and all; so that, despite its severities, the law is just and right, as also is the action of its ministers in carrying out the law in all its rigour. Consequently it would amount to sheer confusion of thought on the part of the civilized observer, if he were to confuse the penal with the magical, in the sense of the anti-social, type of case in which human endeavour seeks to help itself out with superhuman assistance. Whether a god can be distinctly discerned behind the help invoked, or some vaguer source is implied whence a mysterious increment of strength reinforces the tribal authorities, we need have no hesitation in placing these efforts to assert the majesty of the law to the account of religion, as opposed to magic; if as Plato advises, we would imitate the good carver in dividing at the joint, instead of indulging in arbitrary cleavages that have no counterpart in the order of Nature.

A typical example of the alliance between law and the divine, or at least the sacred, in its punitive capacity may be taken from the well-known account of the Omaha tribe by Miss Alice Fletcher, one of the most eminent of American anthropologists, who enjoyed the advantage of the co-operation of Frank La Flesche, an educated native.3 This people uses the word wakan or wakanda represented in compounds by the root wa, to express the element of mystery, and so to speak of ‘medicine’, in everything belonging to what has been called ‘the x-region of experience’; whether blessing or bane, sanctity or pollution, happens to follow in its train. Wakanda has, indeed, lent itself in certain contexts to personification under such loose titles as ‘The Great Spirit’ or ‘The Master of Life’. Yet, as an old writer puts it, ‘Their Wahconda seems to be a protean god’;4 since anything that passes ordinary understanding, including the white man's horse and gun, when they were first encountered, is charged with this ambiguous dynamism. In association with the duly constituted upholders of tribal custom, however, wakan stands for all that is right; the proof being that it provides them with a veritable sword of justice.

Among the Omaha chieftainship virtually coincides with membership of a sacred society, to which no one, man or woman, is admitted unless they have to their credit a hundred wathiethe or deeds of grace, that is, such as have brought supernatural power into play.5 These are such acts and gifts as do not directly add to one's own comfort or wealth, but further the welfare of the tribe by promoting internal order and peace. Those, then, who have ‘acquired merit’ in this way so manifestly approved of Heaven are in a position to make use of a form of public chastisement known as wazhiagthe, or the ‘placing’ of a directed spiritual power.6 A disturber of the peace or one who had otherwise made himself obnoxious to the authorities, could thus be punished by a corporate dooming on the part of the members of the society; who, full of supernatural energy as they were, had simply to fix their minds on the offender. Thereby they ‘placed’ on him the consequences of his own actions, so that he became cut off from all helpful relations alike with men and with animals.

With this we may compare another solemn form of procedure known as wazhithethe, where the termination means ‘sending’, in which the directed spiritual energy is meant to have the exactly opposite effect of projecting itself into an absent friend—a warrior engaged on a campaign or even a competitor in a race or game—so as to augment his natural forces. So too, then, where punishment was needed, those who had accumulated enough virtue, by their superexcellent behaviour, could discharge it with intent to blast the sinner in what amounted to an act of excommunication. ‘This form of punishment’, we read, ‘which blended social ostracism with a kind of magical power, was greatly feared and frequently resulted in the death of the victim.’7

Now the word ‘magical’ is evidently used here in simple reference to the occult character of the means employed to secure the ends of justice. For, as contrasted with such a spiritual weapon, there was a temporal arm to which recourse might be had, possibly when a very unsuggestible type of criminal had to be brought to book. Within the tent sacred to War was kept an ironwood staff, the sharply splintered end of which could when necessary be doctored with rattlesnake poison. If it seemed good to the supreme Council of Seven, whose decrees were directly inspired by Wakanda—so much so that a councillor must always be slow to speak, because his every word was charged with sacred meaning, and must therefore be uttered in due soberness of spirit—one adjudged to be a disturber of the peace and order of the tribe was secretly dug in the back of his naked body by a trusty emissary of the Seven, and so died; unless, indeed, in their mercy they decided to warn him by thus causing the death of his horse.8 It was Voltaire who cynically observed that spells could undoubtedly kill, if accompanied by a sufficient quantity of arsenic. We may acquit the Omaha elders, however, of anything short of a complete faith in the equal adequacy of two instruments working on such different planes; since in their eyes both alike have in them or behind them the same dread power, which ultimately validates at once the will and the hand of the public authority.

This American instance will serve well enough to bring out the close interdependence between the religious and the civil, the superhuman and the human, those twin supports on which the legal sanction has been established in the course of the evolution of society. Law being definable as the authoritative regulation of social relations, it is nevertheless, as Herbert Spencer puts it, only quasi-moral in its immediate aim, since the means at its disposal limit it to a policy of mere intimidation. To fear God and keep His commandments may well seem to amount to the whole duty of Man under a theocratic system; but, if duty be conceived as a response to fear pure and simple, then a morality which trusts rather to love and willing service has every right to regard the merely legalistic outlook as at once ideally a pis aller and historically but a stepping-stone to a fuller condition of spiritual freedom. For, where Church and State are one, and the fear of God is therefore identified with the fear of legal punishment in the form of an execration, that is, a forcible severance from the communion of the faithful and just, the divine will as subject to human interpretation will make either for increased responsibility, or for sheer irresponsibility, on the part of those in power, according as they honour or abuse their position. In certain contexts, indeed, the traditional sanctities can be left to vindicate themselves, so spontaneously do they resent violation. Thus it is always bad luck to desecrate a grave. In Melanesia such a holy place would be called rongo, or sapuga, as being sacred in itself. To declare something tambu, however, introduces the notion of a man-made law, though resting on a curse expressed or implied. As Codrington says of taboo, as the word is used in its home-area, the Pacific region, ‘it never signifies any inherent holiness or awfulness, but always a sacred and unapproachable character which is imposed’.9

He goes on to explain that when a chief forbids some thing to be done, or to be touched, under a penalty, it seems to the European a proof of the temporal power of the chief, whereas it means to the native that the chief has a spiritual helper at his back. Such at least is the old-world view of the matter. We are afforded, however, the following sidelight on modern conditions. ‘The tambu (taboo) is too convenient an institution to drop when the original sanction of it has ceased to operate; a native Christian teacher, therefore, does not hesitate, as a man of position in society, to set a tambu; thieves, he says, are afraid of a man, if not of a tindalo (a ghost of power).’10 It looks as if contact with a higher and more rationalistic civilization had familiarized the convert with a dissociation between his spiritual and his lay functions and interests, such as would hardly commend itself to his heathen brethren. For the latter, authority was chiefly represented by the secret societies, of which a sympathetic account, composed from the inside, is for obvious reasons wanting. It has been ingeniously suggested by Dr. Rivers that, in their original form, these organizations represented an immigrant culture superior to that of the aborigines in many ways, and more especially in being bound up with an individualistic conception of property, likely to advance the material prosperity of those who held it and could exploit it by dominating the imagination of the rest.11 Possibly they were identified in the first instance with revenants, as certainly happened when the Australian black fellow made acquaintance with the earliest white settlers.12 Be this as it may, the power of the secret societies rests primarily on their supposed association with ghosts of power; though faint traces of totemism may lurk in the background.

As for chieftainship, it is less fully developed in Southern than in Northern Melanesia; but, in whatsoever degree it is found to exist, it would always seem to depend on a ceremonial status, which in turn has been acquired by a series of formidable initiations, and implies a long education in ritual and sacred lore. Hence, although politically the enforcement of taboo may appear, to those who go by the surface impression, no more than organized bullying on the part of a self-seeking mob of impostors, exercising a crude terrorism by means of horrible masks and unearthly noises, the student of primitive religion must summon enough insight to his aid to realize how Melanesia, like Puritan England, sees no paradox in an earthly commonwealth administered by its acknowledged saints—a fact, indeed, of which the missionaries have been ready to take full advantage. Taboo in the sense of a ius sacrandi, a judicial authority to pronounce and execute a doom, rests on mana, itself positive and unconditional, as consisting in communion with the very spirit of the law, namely, its immanent Tightness as a divinely appointed institution. To-day jurisprudence postulates a sovereignty of the secular state resting either on the unlimited power at its disposal, or on the unlimited good-will implicit in the consent of the governed—alternative absolutes, of which each involves a fiction. On the other hand in going straight to the gods for its sanction, primitive law has recourse to faith in place of convention; seeking its ultimate justification in a power and a good-will which, though held to be infinite in scope, seem none the less active and real.

So much, then, for justice on its authoritative side as an ordered scheme of social relations safeguarded by a sanction, or conditional execration. It remains to consider it in its regulative aspect, as needing to devise a sure method whereby only the guilty shall be brought to justice, in the sense that the threat of excommunication may be made good at their sole expense. In a word, a legal procedure is the indispensable adjunct of any penal system; and, in proportion as the latter takes its colour from religion, the former will in turn approximate to the nature of a ritual. Now, as the practice of law evolves under trained guidance, it learns to proceed by stages; thereby immensely gaining in accuracy, though not without becoming somewhat dilatory in consequence. In the primitive society, on the other hand, preliminary detection, trial, and even punishment are apt to be comprised in one expeditious process. The essential proof that is sought is a sign from heaven; and not uncommonly this will straightway manifest itself in a death attributable to supernatural causes.

Meanwhile, any organization of the public indignation issuing in punishment is better than none, because both the individual and the crowd are capable of an hysterical rage that is more or less undirected; so that they may discharge their violent feelings on friend no less than on foe, and even upon their own possessions and persons. Indeed, those frantic ebullitions of grief regularly displayed at an Australian graveside, when the sincerest mourner is reckoned to be the one who cuts himself or herself deepest, would seem to pass almost without a break, or a consciousness of any change of motive, into no less frantic demonstrations against a gratuitously imagined author of the death. Direction here hardly amounts to more than a subconscious relief, obtained by a casual side-tracking of emotion, when it verges on the suicidal condition known as ‘running amok’.

From this it might seem to follow that any victim will do; and indeed, so far as all punishment bears an exemplary aspect, it must be the crime, rather than the particular criminal, that is the immediate object of the retributive act; the educative purpose of bringing his unworthiness home to the actual offender being incidental thereto, as is tolerably obvious when a short shrift leaves him but little time for repentance. The so-called medicine-man or diviner, then, who as crowd-leader diverts the public attention at a funeral to the discovery of a supposed enemy dealing in evil magic, is hardly to be regarded as already one in spirit with Sherlock Holmes, even though from an evolutionary point of view he is to be classed as a detective in the making. He is more concerned to throw away a bomb liable to explode near at hand than to register a hit with it somewhere outside. Similarly a witch-finding in the Africa of yesterday used to operate primarily as a panacea for steadying the tribal nerves after almost any experience of misfortune. Indeed, the blind sense of outrage which insists that a crime be followed by a conviction is not entirely unknown to the civilized community.

Another factor in the situation, as it confronts a savage group smarting under a vaguely localized grievance, is that, in its relations with outsiders—including the other bands making up the loose aggregate of which the tribe, as an intermarrying alliance, is composed—it is in a perpetual state of modified enmity, sufficiently resembling downright war so as to involve the principle of collective responsibility. Given no very obvious reason for imputing a death or other wrong to a group-comrade—who, even so, would have to be of another kin, since between kinsmen mutual injury is wellnigh unthinkable—suspicion will naturally turn towards any one of the circumjacent camps which, for good reason or for none, happens to be especially disliked at the moment. In such a case the slightest impulsion in the shape of an accepted suggestion will suffice to dispatch an avenging party on its way. On the other hand, if the supposed ill-wisher be one of their own number, the friends of the stricken party will be less inclined to proceed to extremities. Among the Dieri, for instance, a sick man's wife, with a male escort consisting in that peculiar Dieri institution, the secondary husband, or cavaliere galante, goes to the person suspected of having ‘given him the bone’, makes him a small present, and simply informs him that her husband is ill and is not expected to get better. On the strength of such a hint a sensible man, instead of making useless denials, will bid her go in peace, since he intends to take all the power out of his bone by steeping it in water; for he knows well enough that herein lies his only chance of staving off revenge.13

Moreover, it would appear that in this tribe all the principal folk openly possess bones, carefully wrapped up in emu feathers and fat; and, when some one at a distance is identified with the sender of evil magic, they solemnly meet and, using their several bones, direct their common force against the alien offender in a ceremony of execration that lasts the best part of an hour. Nothing thereafter can avert the destructive effect of their dooming, unless the other group puts up a barrage in the form of a counter-spell of prepotent efficacy.14 Whether this would in such a case be followed up by a visit of armed warriors, so that the temporal might remedy the shortcomings of the spiritual arm, is uncertain; but it is on the other hand fairly certain that, in these reprisals between semi-independent communities, the will often takes the place of the deed, so that a good deal of steam is blown off without actually scalding those in whose direction it is discharged.

As for the tribal worthies who in their public and united capacity act on the principle that the witch shall not be suffered to live, they are emphatically not playing the witch on their own account. It may be difficult to recognize the fact, however, owing to the misconstruction usually placed on their motives by our first-hand observers, who see nothing beyond the bones or crystals or other accompaniments of their rites, and therefore fail to differentiate between a judge and a murderer as dealers in death of a very different complexion. Would that it were in my power to banish once for all from the pages of anthropology the pernicious fallacy that, in primitive, or any other, forms of religion, the use of material symbols is bound to imply a materialistic outlook. Exactly as in the Omaha example, these Australian elders of an accredited authority, resting on what native thought expresses now as wonder-working power and now as goodness, are condemning a supposed enemy of society—which no doubt, like the rest of us, they incline to identify with their own society—in the name of all that they account most holy. This holiness is indeed to some extent immanent in themselves, yet not in their individual but rather in their functional persons as officers of the law; nor does the bone or the crystal make that office, any more than the wig or the black cap makes the judge of to-day.

Further, apart from the inherent sanctity of a position to which they have attained only by a long initiation in the tribal mysteries, there is a special reason for inflicting retribution for homicide, real or at least imputed, in the need for satisfying the injured ghost. We may deplore such an expression of dutifulness towards the dead as an aberration; but at least it must be recognized as a by-product of a belief in the immortality of the soul. It is indeed in the particular capacity of a spirit-medium that the detective services of one so qualified are required, so as to work up a case for the judges. Such a specialist would, for instance, be more likely than the rest to catch sight of the spirit of the malefactor, gloating over his fell work from the neighbouring bush. Or, duly interrogated by a brother-doctor standing at the other end of the grave, he would become possessed by the soul of the deceased, which would thereupon declare his unknown assassin.15 Among the Dieri, however, a near relative questioned the corpse, and the audience found themselves sooner or later inspired to cry aloud the name of some notorious member of another group.16 To the psychologist all this may savour of subconscious prejudication rather than rational judgement. For those concerned, however, this is essentially guidance by a higher power. This, being good, stands for justice rather than pure vindictiveness; in other words, repays evil by thrusting it as it were upon itself, so that hate perishes by the reaction of its own venom.

Passing on to what may be distinguished as trial in contrast to preliminary inquiry, though on the other hand it tends to be a type of trial where punishment coincides with conviction, let us take note of some savage anticipations of the medieval trial by combat, which was significantly known to our ancestors as the ‘Judgement of God’—a legal method which was not formally abolished in England until the year of grace 1818. Under the title of ‘ordeal by combat’ Howitt thus describes the custom of certain Queensland tribes. When a man died, a kinsman would discover by means of a dream the identity of the maleficent witch, who invariably belonged to another camp; and thither it was his pious duty to go, and surreptitiously to administer a sharp blow on the neck of the culprit, as he bent over to blow up the fire; the aggressor retiring promptly after so doing. Thereupon the other side would, somewhat paradoxically, send a messenger to tell him that he was afraid to come to their camp; and, with this insult to spur him on, the complainant went to them fully armed and fought, not only the accused, but as many of his friends as liked to take up the quarrel, one after the other.17 In such a case, however, it could hardly fail to strike an impartial bystander that the scales of justice were unequally weighted; unless we are to suppose that the really guilty wretch would be too conscience-stricken to put up a fight on his own account, and would likewise find no backers. Nay, there is actually a case on record of a man who boasted of his feats of black magic being handed over for execution by his own people to an avenging party from outside.18

It is equally common in Australia, however, for the balance to tip the other way, the prosecutor and his friends having all the advantage over the defendant, who must content himself with the passive role of dodging their boomerangs and spears, until, as they themselves put it, ‘there is no more anger’.19 Fortunately the average black fellow is not deficient in agility; so that a sense of innocence might well be enough to bring the test to a bloodless issue. How far a religious interpretation was put upon such a means of obtaining a verdict is not easy to make out; but there is no doubt about the ceremonial nature of such encounters. Indeed, it may even be deduced from the careful way in which the combatants were painted up for the occasion, with one side of the body charcoal-black and the other side white with gypsum, while a nose as formidable as red ochre could make it protruded truculently in front.

For the rest, such judicial proceedings are carried out with the greatest decorum. In one such expiatory rite of which the details are given, two entire totems confront each other under their respective headmen. It is agreed in full meeting when and where the trial shall take place; that no unfair advantage shall be taken; and that the quarrel shall cease as soon as blood is drawn. The accused totemites in a body stand up with nothing but shields in their hands to await such punishment as fate may send them; while the kinsmen of the deceased hurl their weapons. Presently the headman of the party that is offering reparation throws a lighted piece of bark into the air to signify that one of them is wounded; and ‘that is that’.20 Iustitia, says Cicero, erga deos religio, erga parentes pietas.21 In avenging his dead the Australian native defends the inviolability of the sacrament which, through reverence of the totem on the one hand, and consciousness of kind on the other, in their joint effect on his emotions, maintains him in perpetual communion with his fellows, the living and the dead alike. Justice, then, is this sacramental relation, this good companionship, in its self-protective character, which includes an anger organized in love—in other words, a ‘righteous indignation’ as towards all who deny its sacred laws.

There is less change of principle than might be supposed when we pass beyond the stage of so-called private, that is, inter-clan, justice, and examine the typical trial as it takes place in the centralized state. In essentials, it remains a ceremonial means of purging the community of the consequences of sin by bringing it home to the guilty party, so that he may suffer those consequences alone and apart. From the first, certain offences are recognized as sins, liable to pollute all, unless steps are taken to find a scape-goat, as when incest is committed, or such murder as ‘hath the primal eldest curse upon it’ is wrought by the hand of a kinsman, or else by means of black magic. Such wrong-doing, on the other hand as merely involves a breach of social order, though felt by the rest as a nuisance that they would fain abate by arbitration, hardly comes under the category of a crime against the state, unless it is likewise somehow raised to the level of a sin. In other words, the public interest is involved only at the point at which the primal sanctities are in danger of violation.

This, then, is the function of the earliest procedure known to Roman law, the actio per sacramentum,22 namely, that, by ritual means and in a sense artificially, it lifts the dispute on to the higher plane, by treating it as if it were a question of a violated taboo. Thereupon the community is bound to intervene, in order that the inevitable pollution may be isolated, so that none but the violator himself shall be required to expiate the outrage at his private cost. Since in the historic period this practice had come to be regarded as no more than a wager in law, whereby the parties to the dispute obliged themselves each to deposit a pledge in money to be forfeited by the loser, it is easy to overlook the original intention. This gave the forfeit the character of a piacular sacrifice, that was meant to ward off a self-invoked spiritual disaster, not only from himself, but ultimately from all concerned. In primitive law there is no distinction corresponding to that which we now draw between civil and criminal law, unless it be just the difference between trivial suits in which the tribal sanctities, and through them the tribal authorities, are not forced by the action of the contestants to take a part, and those serious quarrels in which both sides are ready to make a life-or-death matter of it. For, under primitive conditions, it generally ends in some one's death, when men venture to appeal to the dread tribunal of the gods with the threat: Either judge between us, or one or other of us will have broken your law with impunity.

Captain Rattray makes this very clear in his excellent work on Ashanti Law and Constitution. Here civil and criminal cases can be divided, as also Junod does in dealing with those of the Ba-Thonga, into ‘private’ and ‘official’.23 The former are known as ‘household matters’; and the heads of families deal with these more or less informally, doing their best to bring about a reconciliation, and at most imposing slight damages. If, however, the parties insist on a fight to a finish, they must swear the oath, or, literally, ‘speak the forbidden word’; and this violation of a taboo makes it necessary for the highest authorities of the land to take cognizance of the suit, which has ipso facto become an investigation into a twofold blasphemy. In the end the innocent, or at any rate less guilty party, since he took holy things in vain under strong provocation, gets off with a small fine. His opponent, however, must die the death, or used to do so, until latterly the milder practice has come into fashion of allowing him to ‘buy his head’—always at great expense—so long as his offence were not otherwise of a heinous nature. In Ashanti the oath tended to imply a conditional curse on the king's welfare, so that on a superficial view it might seem that he had to interfere for purely personal reasons. Really, however, it is his mana, or, as Roman Law would put it, his maiestas, that is threatened, namely, that universal prosperity under Heaven of which he is the symbol and vehicle for the benefit of his whole realm. As the embodiment of the sacramental idea—of that communion between men and gods which is the formal expression of spiritual health and goodness—he is bound to remove the sinner who by his own self-execration has cut himself off from all that is good; so that the curse which is hovering over all may be precipitated on his devoted head.

Now it is especially when a king, or other sacred person, or a body of such persons, presides over a court of justice that a characteristically religious procedure such as that of the ordeal or of the oath is likely to be employed. These two methods of discovering the unclean wretch to whom curses cling involve exactly the same principle, namely, that pure things or words are for the pure only; so that guilt, being impurity, cannot make contact with them without being blasted. Thus the only difference between them, as respectively physical and verbal instruments, is that an appeal to sight or touch reaches the minds of simple folk more easily than one that must be met by intelligent hearing. Indeed, some examples will go indifferently under either head, or might even be brought under a still wider genus, though always there is self-imprecation at the bottom of it. For example, there is the Naga institution which Professor Hodson cautiously labels ‘the oath, ordeal, or arbitrament, of the cat’. A live cat is placed in a basket, of which each litigant holds an end, while an expert with a sharp dao neatly severs the unfortunate animal in two. Now the cat is especially sacred with the hill-folk of Manipur, as with the ancient Egyptians, so that if it dies in the way of nature it must be accorded a fast and a funeral. How much more, then, if it die violently, is it likely to visit its just wrath on the man who forswears himself. Indeed, the same ritual will dispose of sworn counter-claims, or will make a treaty binding; since in either case it prefigures a feline vengeance of a supernatural unpleasantness that can be left to the imagination.24

Meanwhile, there need be nothing inherently unpleasant in any such test except the curse. To drink water, for instance, into which the ink of a freshly written text from a holy book has been infused cannot be unreasonably offensive to the taste; though no doubt it will cause choking in a man with a bad conscience if he be likewise sufficiently responsive to auto-suggestion. Or, again, the Masai warrior normally thrives on milk, while a dash of bullock's blood positively adds to his spiritual strength if he is morally fit to enjoy it. Yet his most binding ordeal or oath is to drink the same potent mixture, crying aloud, ‘O Engai, I drink this blood, and, if I have stolen these cattle, this blood will kill me’; and, added Mr. Hollis's native informant, ‘if he has done it, he dies’.25

Nevertheless, while in religious theory ordeal and oath can scarcely be told apart, in practice, thanks to human ingenuity, the ordeal can be given a mechanical turn to which the oath does not lend itself. At the same time it would be utterly misleading on that account to class the former as magical in the sense of pseudo-mechanical; since the spiritual intention is essential, while that peculiar use of it is accidental which, at its worst, turned the ordeal into a physical alternative to the rack. Thus the old Scandinavians called it ‘God's ordeal’, as contrasted with the oath which was ‘man's ordeal’, because the ordeal yielded results that were so much more realistically and immediately manifested.26 For instance, water, that pure element, is bound to reject impurity. Wherefore it follows that the guilty will float, while the innocent are welcomed to its deep bosom.

Of course such an ordeal can be so arranged as to give a sporting chance to one who wishes both to be justified and to live. Thus among the Nagas already cited, when two villages have a dispute, their respective headmen—holy men who are fortified by many taboos—plunge into a deep pool. Thereupon the one who stays under the longer time is adjudged to have proved his case; though we hear of the disappointed village giving their champion an extra ducking for his want of success.27 On the other hand, in our own witch-trials the judges acted on what amounted to a presumption of certain guilt, and nevertheless persuaded themselves that they were behaving as good Christians. Thus our wise King James I writes in his ‘Daemonology’: ‘It appeares that God hath appointed for a supernatural signe of the monstrous impietie of witches that the water shall refuse to receive them in her bosom that have shaken off them the sacred water of baptism.’28 So too, then, boiling oil, and red-hot ploughshares, and poisons like the Calabar bean—sometimes administered impartially to both parties—have fortunately disappeared from modern law; which, however, retains the oath, as at any rate less likely to be diverted from its true purpose, namely, that of allotting their deserts, not to bodies, but to souls.

It remains only to add a word on the relation of justice to mercy. Since the human judgement cannot fail to be aware of its own imperfections, it is apt to take shelter behind the infallibility attributable to a divine revelation of the truth. Remove such a belief, and humanity is left with the State and its judges and juries. These at their best are unable to provide more than what, from the standpoint of the ideal, is a substitute-truth and a substitute-justice; while, when they are at their worst, as in communities of inferior moral grade, the very spirit of law is profaned by its unworthy ministers. In such circumstances the hope of the world cannot lie in any political or legal mechanism, whether its control be in ecclesiastical or lay hands. Rather it must consist in abiding faith in goodness and truth, as bound in the long run to come to their own.

Now savage folk are less capable than we are of distinguishing between the actual embodiment and the real value of such a principle as that of communion, which may be defined as fellowship for the sake of the good. Hence they display a blind trust in their traditional formulas, such as would justify us in classing them as either magically-minded or legally-minded, as we choose to put it. The modern idealist, on the other hand, while insisting that real values must in some ultimate sense be likewise realizable, is inclined to attack the problem of human betterment by way of moral rather than legal process, by persuasive rather than punitive methods, in a word, positively rather than by negative means. Correspondingly, then, the God of the Old Testament gives place to the God of the New, the Patriarch to the Forgiving Father, the Judge to the Redeemer. For on a religious, as opposed to a legal, interpretation of the sacramental idea, no sinner is beyond reprieve; no act of excommunication is final.

  • 1.

    e.g. arungquilta (Arunta), Spencer and Gillen, op. cit. i. 347; gubburra (Yuin), Howitt, Nat. Tr. of S.-E. Australia, 372; mung, ibid. 365; muparn, ibid. 450.

  • 2.

    T. N. B. Hewitt, American Anthropologist, N.S., iv. 37 n.

  • 3.

    Bureau of American Ethnology, Report 27: The Omaha Tribe, by Alice C. Fletcher and F. La Flesche.

  • 4.

    Say in James's Account of Long's Exped. to the Rocky Mountains, i. 268.

  • 5.

    Fletcher, op. cit. 206 f.

  • 6.

    Ibid. 583 f.

  • 7.

    Ibid. 584.

  • 8.

    Fletcher, op. cit. 213.

  • 9.

    Codrington, op. cit. 215.

  • 10.

    Ibid. 216.

  • 11.

    W. H. R. Rivers, The History of Melanesian Society, ch. xxiv.

  • 12.

    Howitt, op. cit. 442–6.

  • 13.

    Howitt, op. cit. 359.

  • 14.

    Howitt, op. cit. 359.

  • 15.

    Ibid. 464.

  • 16.

    Ibid. 448.

  • 17.

    Howitt, op. cit. 333.

  • 18.

    Spencer and Gillen, op. cit. ii. 444.

  • 19.

    R. Dawson, The Present State of Australia (1830), 288.

  • 20.

    Howitt, op. cit. 335.

  • 21.

    Cicero, Part. Or. xxii. 78.

  • 22.

    See H. J. Roby, Roman Private Law, ii. 340 f.

  • 23.

    R. S. Rattray, Ashanti Law and Constitution, 6, cf. 316; H. A. Junod, The Life of a South African Tribe, i. 412.

  • 24.

    T. C. Hodson, The Naga Tribes, III.

  • 25.

    A. C. Hollis, The Masai, 345.

  • 26.

    Norges Gamle Lóve, i. 389; ap. Hastings, Encyl. of Rel. and Eth. ix. 530.

  • 27.

    Hodson, op. cit. 110.

  • 28.

    ap. Sir E. B. Tylor, Primitive Culture5, i. 141.