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

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

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.

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

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.

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.

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.

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

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

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

Among various savage peoples expulsion from the tribe is the punishment of persons whose conduct excites great public indignation, and among others such persons are outlawed.

The Chippewyans, among whom “order is maintained in the tribe solely by public opinion,” the chief having no power to punish crimes, occasionally expel from the society individuals whose conduct is exceptionally bad and threatens the general peace.53 The Salish, or flathead Indians, sometimes punished notorious criminals by expulsion from the tribe or band to which they belonged.54 Sir E. F. Im Thurn, whilst praising the Indians of Guiana for their admirable morality as long as they remain in a state of nature, adds that there are exceptions to the rule, and that such individuals “are soon killed or driven out from their tribe.”55 Among the Bedouins of the Euphrates, “in extreme cases, and as the utmost penalty of the law, the offender is turned out of the tribe”;56 and the same is the case among the Beni Mzab.57 In the Scotch Highlands, even to this day, instances are common of public opinion operating as a punishment, to the extent of forcing individuals into exile.58 There are cases reported from various parts of the savage world of banishment being inflicted as a punishment for sexual offences;59 and other instances of expulsion are mentioned by Dr. Steinmetz.60 In some cases, however, expulsion is to be regarded rather as a means of ridding the community from a pollution, than as a punishment in the proper sense of the term.61

Nearly related to the punishment of expulsion is that of outlawry. Von Wrede states that the Bedouins of Ḥadhramaut give a respite of three days to the banished man, and that after the lapse of this period every member of the tribe is allowed to kill him.62 Among the Wyandots the lowest grade of outlawry consists in a declaration that, if the offender shall continue in the commission of crimes similar to that of which he has been guilty, it will be lawful for any person to kill him, whilst outlawry of the highest degree makes it the duty of any member of the tribe who may meet with the offender to kill him.63 Among the ancient Teutons, also, outlawry was originally a declaration of war by the commonwealth against an offending member, and became only later on a regular means of compelling submission to the authority of the courts.64

Most generally, however, punishment is inflicted upon the culprit, not by the whole of the community, but by some person or persons invested with judicial authority. Indeed, it is not only civilised races who have judges and courts of justice. Among savages and barbarians justice is very frequently administered by a council of elders or by a chief.65 Even people of so low a type as the Australian aborigines have their tribunals.

Speaking of the native tribes of Central Australia, Messrs. Spencer and Gillen observe:—“Should any man break through the strict marriage laws, it is not only an ‘impersonal power’ which he has to deal with. The head men of the group or groups concerned consult together with the elder men, and, if the offender, after long consultation, be adjudged guilty and the determination be arrived at that he is to be put to death—a by no means purely hypothetical case—then the same elder men make arrangements to carry the sentence out, and a party, which is called an ininja, is organised for the purpose.”66 We hear of similar councils from various parts of the Australian continent. In his description of the aborigines of New South Wales, Dr. Fraser states, “The Australian council of old and experienced men—this aboriginal senate and witenagemot—has the power to decree punishment for tribal offences.” The chiefs sit as magistrates to decide all cases which are brought before them, such as the divulging of sacred things, speaking to a mother-in-law, the adultery of a wife; and there is even a tribal executioner. At the same time, many grievances are arranged without the intervention of the chiefs; for instance, if a man has been found stealing from his neighbour, or two men quarrel about a woman, a fight ensues, the one or the other gets his head broken, and there the matter ends.67 The Narrinyeri have a judgment council of the elders of the clan, called tendi, which is presided over by the chief of the clan; and when any member of the tendi dies, the surviving members select a suitable man from the clan to succeed him. “All offenders are brought to this tribunal for trial. In cases of the slaying by a person or persons of one clan of the member of another clan in time of peace, the fellow-clansmen of the murdered man will send to the friends of the murderer and invite them to bring him to trial before the united tendies. If, after full inquiry, he is found to have committed the crime, he will be punished according to the degree of guilt.”68 Among another Australian tribe, the Gournditch-mara, again, the headman, whose office was hereditary, “settled all quarrels and disputes in the tribe. When he had heard both sides, and had given his decision in a matter, no one ever disputed it.”69

Among the Australian aborigines, then, we find cases in which punishment is inflicted by the whole community, and other cases in which it is inflicted by a tribunal or a chief. There can be little doubt that the latter system has developed out of the former; there are obvious instances of transition from the one to the other. Among the North-West-Central Queensland natives, for instance, in cases of major offences, such as murder, incest, or physical violence, the old men are only said to “influence” aboriginal public opinion.70 It is an inconvenient, and in larger communities a difficult, procedure for the whole group to inflict punishments in common, hence the administration of justice naturally tends to pass into the hands of the leading men or the chief. But the establishment of a judicial authority within the society may also have a different origin. Very frequently judicial organisation seems to have developed, not out of a previous system of lynch-law, but out of a previous system of private revenge.