the brotherhood."[31]
Or covetousness might lead to violation of the ban, as with Achan. Sex impulse may lead a man to seek for his wife a woman not in the lawful group. Or, as one of the most dangerous offenses possible, a member of the group may be supposed to practice witchcraft. This is to use invisible powers in a selfish manner, and has been feared and punished by almost all peoples.
In all these cases it is of course no abstract theory of crime which leads the community to react; it is self-preservation. The tribe must be kept together for protection against enemies. Achan's sin is felt to be the cause of defeat. The violation of sex taboos may ruin the clan. The sorcerer may cause disease, or inflict torture and death, or bring a pestilence or famine upon the whole group. None the less all such cases bring to consciousness one aspect of moral authority, the social control over the individual.
And it is a social control—not an exercise of brute force or a mere terrorizing by ghosts. For the chief or judge generally wins his authority by his powerful service to his tribesmen. A Gideon or Barak or Ehud or Jephthah judged Israel because he had delivered them. "Three things, if possessed by a man, make him fit to be a chief of kindred: That he should speak on behalf of his kin and be listened to, that he should fight on behalf of his kin and be feared, and that he should be security on behalf of his kin and be accepted."[32] If, as is often the case, the king or judge or chief regards himself as acting by divine right, the authority is still within the group. It is the group judging itself.
In its standards this primitive court is naturally on the level of customary morality, of which it is an agent. There is usually neither the conception of a general principle of justice (our Common Law), nor of a positive law enacted as the express will of the people. At first the judge or ruler may not act by any fixed law except that of upholding the customs. Each decision is then a special case. A step in advance is found when the heads or elders or priests of the tribe decide cases, not independently of all others, but in accordance with certain precedents or customs. A legal tradition is thus established, which, however imperfect, is likely to be more impartial than the arbitrary caprice of the moment, influenced as such special decisions are likely to be by the rank or power of the parties concerned.[33] A law of precedents or tradition is thus the normal method at this level. The progress toward a more rational standard belongs under the next chapter, but it is interesting to note that even at an early age the myths show a conception of a divine judge who is righteous, and a divine judgment which is ideal. Rhadamanthus is an embodiment of the demand for justice which human collisions and decisions awakened.
The conscious authority of the group is also evoked in the case of feuds or disputes between its members. The case of the blood feud, indeed, might well be treated as belonging under war and international law rather than as a case of private conflict. For so far as the members of the victim's clan are concerned, it is a case of war. It is a patriotic duty of every kinsman to avenge the shed blood. The groups concerned were smaller than modern nations which go to war for similar reasons, but the principle is the same. The chief difference in favor of modern international wars is that since the groups are larger they do not fight so often and require a more serious consideration of the possibility of peaceable adjustment. Orestes and Hamlet feel it a sacred duty to avenge their fathers' murders.
But the case is not simply that of clan against clan. For the smaller group of kin, who are bound to avenge, are nearly always part of a larger group. And the larger group may at once recognize the duty of vengeance and also the need of keeping it within bounds, or of substituting other practices. The larger group may see in the murder a pollution, dangerous to all;[34] the blood which "cries from the ground"[35] renders the ground "unclean" and the curse of gods or the spirits of the dead may work woe upon the whole region. But an unending blood feud is likewise an evil. And if the injured kin can be appeased by less than blood in return, so much the better. Hence the wergeld, or indemnity, a custom which persisted among the Irish until late, and seemed to the English judges a scandalous procedure.
For lesser offenses a sort of regulated duel is sometimes allowed. For example, among the Australians the incident is related of the treatment of a man who had eloped with his neighbor's wife. When the recreant parties returned the old men considered what should be done, and finally arranged the following penalty. The offender stood and called out to the injured husband, "I stole your woman; come and growl." The husband then proceeded to throw a spear at him from a distance, and afterwards to attack him with a knife, although he did not attempt to wound him in a vital part. The offender was allowed to evade injury, though not to resent the attack. Finally the old men said, "Enough." A curious form of private agencies for securing justice is also found in the Japanese custom of hara-kiri, according to which an injured man kills himself before the door of his offender, in order that he may bring public odium upon the man who has injured him. An Indian custom of Dharna is of similar significance, though less violent. The creditor fasts before the door of the debtor until he either is paid, or dies of starvation. It may be that he thinks that his double or spirit will haunt the cruel debtor who has thus permitted him to starve to death, but it also has the effect of bringing public opinion to bear.
In all these cases of kindred feuds there is little personal responsibility, and likewise little distinction between the accidental and intentional. These facts are brought out in the opening quotations in Chapter II. The important thing for the student to observe is that like our present practices in international affairs they show a grade of morality, a limited social unity, whether it is called kinship feeling or patriotism; complete morality is not possible so long as there is no complete way of settling disputes by justice instead of force.[36]
3. Occasions Which Involve Some Special Danger or Crisis.—Such occasions call for the greatest attention to secure success or avoid disaster. Under this head we note as typical (a) the occasions of birth, marriage, death; (b) seed time and harvest, or other seasons important for the maintenance of the group; (c) war; (d) hospitality.
(a) Birth and Death Customs.—The entrance of a new life into the world and the disappearance of the animating breath (spiritus, anima, psyche), might well impress man with the mysteries of his world. Whether the newborn infant is regarded as a reincarnation of an ancestral spirit as with the Australians, or as a new creation from the spirit world as with the Kafirs, it is a time of danger. The mother must be "purified,"[37] the child, and in some cases the father, must be carefully guarded. The elaborate customs show the group judgment of the importance of the occasion. And the rites for the dead are yet more impressive. For as a rule the savage has no thought of an entire extinction of the person. The dead lives on in some mode, shadowy and vague, perhaps, but he is still potent, still a member of the group, present at the tomb or the hearth. The preparation of the body for burial or other disposition, the ceremonies of interment or of the pyre, the wailing, and mourning costumes, the provision of food and weapons, or of the favorite horse or wife, to be with the dead in the unseen world, the perpetual homage paid—all these are eloquent. The event, as often as it occurs, appeals by both sympathy and awe to the common feeling, and brings to consciousness the unity of the group and the control exercised by its judgments.
The regulations for marriage are scarcely less important; indeed, they are often seemingly the most important of the customs. The phrases "marriage by capture" and "marriage by purchase," are quite misleading if they give the impression that in early culture any man may have any woman. It is an almost universal part of the clan system that the man must marry out of his own clan or totem (exogamy), and it is frequently specified exactly into what other clan he must marry. Among some the regulations are minute
