Independently of other factors the mark-community might have permitted certain diversities in size. The groups were rendered uniform, however, through the influence of another organization, whose divisions, on the one hand, were necessarily identical with the mark-communities but, on the other hand, possessed by their very nature a strong inherent tendency toward regularity of size. I refer to themilitary organization, which was created by the political society in the interest of self-protection. In the early part of the heroic period, the individual champion was doubtless of such pre-eminent importance that the masses formed but a somewhat unorganized background. Homer presents such a picture, though his account is perhaps not so much a faithful representation of actual conditions as the result of the individualizing tendency of poetic narrative. But just as the masses very soon gain greater prominence in political life, so also do they in warfare. This encourages tactical organization. At this stage of political and military development, therefore, companies of one hundred, and soon afterwards groups of one thousand, are formed, and are organized as the chief divisions of the army. That these groups be always of approximately equal size is required by military tactics; that the group of one hundred is the tactical unit of which the other divisions are composed, is due to the circumstance that such a group is not too large to permit of being directed by a single leader; that the number is an even one hundred results solely from the tendency toward decimal enumeration. Since the political society is composed of individuals who are, as a rule, both mark-associates and companions in war, the two groups coalesce. The distribution of property and territorial and military organization are the determining factors in political society.
Political society thus acquires a new basis. The conditions determining its character are very different from those that underlie totemic tribal organization. Quite naturally, therefore, the tribal system disappears with the rise of the State; it is at best but fragments of it that survive in names, cult-alliances, or in bits of custom. On the other hand, the new organization exercises an influence upon all the relations of life. In part, it effects changes in existing institutions; in part, it creates new institutions, which unite to give the political age its characteristic stamp. We have spoken of the peaceful arts of agriculture, which provide for the maintenance of society, and of the military organization, reared upon agriculture to assure safety and protection from without. There are primarilythreeadditional features that characterize political society, especially at its inception. The first of these is areorganization of the family. The other two are genuinely new creations, if we except certain sporadic beginnings that occur in the transitional culture. They consist, on the one hand, in thedifferentiation of classes and of occupations—both of which arise in one and the same course of development—and, on the other, in thefoundation of cities. Doubtless this order of sequence also approximately indicates the successive steps in the establishment of the new political organization. The reorganization of the family inaugurates this development; it is terminated by the founding of cities, for cities are the centres from which the management of the State is conducted and which mediate intercourse between the separate regions; following upon the former and preceding the latter, is the differentiation of classes and of occupations—a result of property conditions and of military organization.
Wherever primitive man has been protected against foreign influences, as we have seen, he apparently always lives in monogamy. This mode of marriage is continuedin the totemic age, and is the fundamental mode from which all others are deviations. These deviations we found to be the two forms of polygamy—polyandry and polygyny. In the presence of these various marriage practices, firmly established family bonds are impossible. Striking evidence of the recedence of the family as compared with the social bond, is offered by the men's club, that widely prevalent institution of the totemic age. True, the individual member of the men's club may have his own wife who lives in her particular hut, but there is no common life of husband and wife such as is essential for a true family. In certain cases, of course, marriage conditions approximate somewhat more closely to a true family life, yet the development is hindered by the overshadowing polygyny. But the beginning of the political age marks the rise of a new form of monogamy. Theenlarged monogamous family, the so-called ancient or joint family, makes its appearance. The joint family, which is characteristic of the heroic era, takes the place of the clan. Though the latter also survives for a time, it more and more loses its importance and finally disappears altogether. Now the clan, as well as the joint family, is composed of individuals of the same ancestry—that is, of blood relations, in the wider sense—even though, in exceptional cases, it also includes members of other clans or even tribal strangers. The recedence of the clan in favour of the joint family must therefore be regarded as a process in which a limited number of closer blood relatives separate from the clan and gradually attain the dominant influence within society. Such a development presupposes first of all a sharper demarcation of the individual family. Hence the joint family directly impresses one as being an extension of the individual family. As a rule, for example, a joint family includesthreegenerations: father, son, and grandchild. This series of generations terminates with the third, because the oldest male member retains the authority over the joint family only so long as there is no generation younger than grandchildren. Though a great-grandfather is honoured as theoldest member of the family, the authority over the joint family passes down to the son who has become a grandfather. Moreover, nature allows such cases as this but rarely. The life-span of three generations is approximately a century; and the average life of man is such that it happens but seldom that those who are living at any one time will outspan a century. Thus, the fact that the ancient family comprised three generations may be due to the natural limit of life, which does not seem to have changed essentially since the beginnings of civilization. The family organization under discussion, therefore, is characterized, in the first place, by monogamy; secondly, by the dominance of the man within the single family; and thirdly, by the inclusion of three generations under the authority of the oldest member of the family. This third characteristic has frequently caused the typical joint family to be called the 'patriarchalfamily.' Since it was true even of the clan that the older men exercised the decisive influence, the clan may be regarded as preparing the way for a patriarchal order. Such clan alliances, for example, as the Germanic kinship groups, in which the fact of the blood relationship of the members receives particularly strong emphasis, form a sort of transition between the clan and the joint family. In the joint family, it is no longer the older generation as such that is dominant, but theoldest individual. This change, as a result of which authority becomes vested in an individual, is paralleled by that which leads to individual rulership within the State. Thus, totemic tribal organization is doubly exposed to disintegration, from below and from above. On the one hand, the patriarchal joint family undermines the leadership of the clan-elders. On the other hand, the clans, together with the tribes whose divisions they form, are shorn of their power; they become fused into one group which, with the rise of political society, passes under the rulership of a single chieftain. It is particularly important to notice that, when the joint family emerges and clan organization is consequently dissolved, one of the most important functions of the more restrictedclan alliances, so far as concerns the inner life of society, passes from the clan to the joint family. I refer toblood-revenge. Not until it underwent many changes did retribution come to be an affair of the State. Thus, the patriarchal family brings to completion a twofold series of changes, whose gradual beginnings may be discerned as early as the previous age. These are, in the first place, the displacement of maternal descent bypaternal descent, and, secondly, the development ofchieftainship. The latter at once concludes and annuls totemic tribal organization. The motives to the former show how untrue to the real nature of the difference between the two social institutions it is to speak of the contrast between mother-rightand father-right, or even between maternalruleand paternalrule, instead of referring to the transition as one from maternaldescentto paternaldescent. Mother-right is to be found at most in a limited sense, as applying to certain rights of the kinship community and, connected with these, at a later time, to the inheritance of property; mother-rulenever occurs, or at most is an abnormal and exceptional phenomenon having scarcely any connection with maternal descent as such. The motives to maternal descent, as we have seen, are totally unrelated to the question of dominance within the family; they are the direct result of a separation of the sexes, which manifests itself likewise in the men's clubs. Paternal descent, on the other hand, is from the very outset based on paternal rule. In the form of father-right, paternal rule prevails even in the case of the primitive monogamous family. Its original source is the natural physical superiority of man; later, it derives its main strength from the fact—reflected also in the origin of chieftainship—that the general affairs of peace, as well as of war with hostile tribes, become subject to the authority of leaders. This latter factor comes to reinforce the former at that stage of development, particularly, which is characterized by the dissolution of totemic institutions and the re-emergence of the monogamous family. It is this change, together with the growing influence of chieftainship, that marks the beginning of the political age.Thus, the restoration of the monogamous family came as a result of political organization. The general course of development was the same everywhere, though the particular steps varied greatly. It was especially in connection with the rise of the patriarchal joint family, which is intermediate between the kinship group and the individual family, that obstructing influences sometimes manifested themselves. In such cases, the course of development was at once deflected directly towards the individual family. A patriarchal family organization of a sharply defined character appeared very early among many of the Semitic tribes, particularly among the Israelites. Of the Indo-Germanic peoples, it was especially the Romans who long preserved the patriarchal system; among the Greeks and the Germanic peoples, it had already disappeared in early times in favour of the single family. That which preserved the joint family was probably the force of tradition, coupled with reverence of age; the single family reflects a sense of freedom on the part of individuals. This brings out clearly the essential difference between the original monogamy, which was due to natural instinct and the simple conditions of primitive life, and the monogamy that was reinstituted as a result of the new tendencies of political society. In the former case, no progress was made beyond the natural starting-point, namely, the single family; in the latter case, the joint family mediated the transition between the dissolution of clans and the establishment of political society. Inasmuch as the acts of primitive man were largely determined by instincts, the original monogamy is not to be interpreted as conformity to a norm. The reason for the almost universal occurrence of monogamous marriage is to be found in the uniformity of the conditions of life and of the social impulses. The monogamy of the political age, on the other hand, is confronted by all those conflicting tendencies which had previously given rise to the various polygamous marriage-unions of totemic society.Oneof these modes of marriage especially, namely,polygyny, finds favourable conditions of development in the new politicalorder. It receives fresh impetus as a result of that very dominance of man which brought about the transition from the maternal descent of earlier times to paternal descent. Polyandry and group-marriage, on the other hand, have by this time disappeared, either entirely or, at least, with rare exceptions. Moreover, the character of polygyny has changed. This is apparent from the distinction betweenchief wifeandsecondary wife—a distinction which has, indeed, an analogy in certain phenomena of the totemic period, but which, as a result of the conditions of public life, now rests upon an entirely different basis. The chief wife is taken from one's own tribe; the secondary wife belongs to a strange tribe, being, in many cases, a slave captured in war. Thus, these changes in polygyny reflect the warlike character of the age, as well as a growing tendency toward a return to monogamy. On the other hand, however, we also discern certain tendencies of a retrogressive nature. These occur particularly within Islamitic culture, whenever the difference between chief and secondary wives is either annulled or is subordinated to the will of the husband. Such deviations from the general trend of development are usually attributed to the influence of personalities. It is not impossible, however, that they are due in this case to the fact that Islamism spread to peoples of totemic culture. But in other departments of life also, remnants and traces of totemic culture have passed down to the heroic era. A striking example appears in the case of the Spartan State. The fact that the men lived in the city, engaged in military drill and political affairs, while the women, together with the slaves, cultivated the fields outside of the city, clearly betrays the influence of the ancient institution of the men's club.
We have seen that the family assumes a new status within political society. It comes to be a compact unit, contrasting markedly with the groups composed of the same sex—in particular, the men's clubs—that dominated the preceding period. Thedifferentiation of classeswas a no less potentfactor in the development of political society. Its beginnings, no doubt, go back to the declining period of totemic tribal institutions, but only in the political age does it become an important influence in social organization. This is due totwoconditions, which are themselves the direct result of the folk migrations that mark the beginning of the political age. The first of these conditions consists in changes affecting property rights; the other, in the subjection of the native populations by the more energetic immigrants. The origin of property, as is well known, is even to-day generally traced, from an abstract juristic point of view, to the occupancy of an ownerless piece of land. This theory, however, is too abstract to be generally true. Above all, it presupposes the existence of ownerless land. But this is seldom to be found. Even when a migrating people occupies new lands, it, as a rule, conquers a territory that was previously in the possession of other tribes. If, therefore, we have in mind the sort of property that was most significant for the development of political culture, we should trace its origin to anexpropriation of earlier ownersrather than to an occupation of ownerless land. Contradicting the abstract theory, moreover, is the fact that it is not the individual who becomes the owner of property through such occupation, but theentire tribe, the people that has immigrated and has dispossessed the original inhabitants. Property, therefore, was originallycommon property. True, even in early times, it was no longer all of the land that was held in common ownership. Nevertheless, the conditions of ownership that have emerged in the course of the development of political society give unmistakable evidence of having originated in common ownership. Even up to fairly recent times, woodland and meadow have remained, either entirely or in part, common property; usually there is also a special temple-property set apart for purposes of cult. Everything goes to show that these cases are to be regarded as remnants of a common property that was at one time more comprehensive, and not as the result of joining pieces of property thatwere at one time owned by individuals. The latter hypothesis is contradicted by the whole direction of development of private property. Interacting with changes in property rights are racial differences. The conquering immigrant peoples subjugate the native races or crowd them back. All the cultural peoples that possess a political organization are the product of folk mixtures. The subjugation of an original population may lead to varying results, depending on the racial difference between the peoples involved. If this difference is very great and the numerical relation makes the absorption of the one by the other impossible, there develops a distinction of castes, as in India, where the lower castes are clearly distinguishable from the higher, even as to physical characteristics. The situation is radically different where there is less divergence between the two populations. In such cases, racial distinctions do not occur, or at least only to a small extent; in their stead, we find differences with respect to property and power. The conquering race becomes a privileged class; those who are subjugated form a class of dependents who possess fewer rights. There is no impassable barrier between the two classes, however, as there is in the caste system. The more a fairly unitary folk-type emerges from the racial fusions, and the more other factors than descent come into prominence—such as common interest in internal order and external defence, or a remarkable personal ability on the part of individual leaders of the lower classes—the greater the tendency, on the one hand, towards the abolition of traditional differences, and, on the other, towards an increased recognition of personal achievement as the basis of social standing. Such social struggles as occurred in the history of Greece and Rome from their early days on, are particularly illuminating as regards this point, for they exhibit clearly the motives that were originally involved—motives that later everywhere become more complicated.
From the very outset these motives exert a potent influence on property relations. The occupied territory first becomes the common property of the separate divisions ofthe immigrant tribe. The individual, however, vies with his tribal associates for the possession of the territory, and the new agricultural conditions connected with the introduction of cattle and of the plough favour division of the land. In addition to the superior ability of an immigrant race, it is its superior civilization that assures to it the supremacy over the native races. This superior civilization, however, involves a strong tendency toward individual industry, and thus toward the differentiation of personal property from common property. The success which the individual owner enjoys in his labour develops in him a consciousness of freedom, and this leads him to compete with his tribal associates both in the acquisition of property and in the attainment of power over the native population. Thus, the division of common property is succeeded by an inequality of personal property—an inequality which, from the very beginning, shows an unconquerable tendency to increase. This tendency is fostered by the fact that political organization makes it possible for individuals to exercise a certain control over common affairs. Property considerations become more and more decisive as regards class distinctions. In addition to descent from privileged ancestors, it is property that gives the individual his social position. An individual belonging to a people that at one time formed a class without rights, may rise to the ranks of the privileged classes, or, if the significance attached to birth continues to be maintained, he, together with those like him, may at any rate attain to an independent influence in public life. Property, however, not only affords increased rights; it also entails greater obligations. The wealthy possess a better military equipment, and are therefore enlisted in the more efficient, but also the more dangerous, divisions of the army. They are entrusted with leadership in war as well as with authority in times of peace. Individual initiative makes itself felt, and this, coupled with the opportunity for the exercise of such initiative, causes political development to appear, from an external point of view, as a series of separate voluntary acts on the part of individual personalleaders. This, however, is not the real truth of the situation so far as its inner motives are concerned. The heroic age is the epoch in which the action of the masses, impulsive and under the sway of environmental conditions, is more and more subjected to the direction of individual leaders who have become clearly conscious of the tendencies inherent in the social body. For this reason the heroic age is pre-eminently theera of personalities. Just as the personal god is dominant in mythology and religious cult, so the human personality plays the leading rôle in the State, and particular, outstanding individuals determine the conditions that regulate external life.
As personality comes into prominence, however, conflicts inevitably arise between individuals who feel themselves called to be the vehicles of this personal power. Political society was not only created by war, but it also continues to remain a theatre where conflicts are fought with changing fortunes. Together with the effort to abolish class distinctions, moreover, there gradually comes a demand for equality of rights. As a result, the influence of dominating personalities, even though never eliminated, is more and more subject to changing conditions. Thus regarded, the general course of events is indicated by reference totwophenomena: firstly, by the development of the State and of the judicial system, and, secondly, by the transformations which the character of the hero undergoes in the course of history. The first of these phenomena will presently be discussed in some detail; the second, which puts its stamp upon the particular periods of history in question, consists in the gradual displacement of the warrior-hero by the hero of peace. Even legend indicates that this is the sequence of the qualities that are supremely prized in personality. Thus, in the legend of the kings of Rome, the warlike Romulus, founder of the city, is followed by Numa Pompilius, the organizer of religious cult, who is succeeded in due time by the secular lawgiver, Servius Tullius. The warrior-hero appears first; he suggests the origin of political society in warfare. The founderof deity cults is his immediate successor. The lawgiver, or the political hero in the true sense of the word, stands at the zenith of the age. The warrior initiates, whereas the legislator completes the organization of society. Then commences the age of citizenship, which no longer entertains a hero-ideal as such but, instead, prizes civic virtues. On this plane of culture, the general demands of political life and of cult are augmented by the particular duties which grow out of the position which the individual occupies within society. The position itself is conditioned primarily by the rise ofdifferences of vocation.
The above discussion will already have indicated the general significance of the differentiation of vocations in the development of political society. While the origin of classes is coincident with the rise of the State, separate vocations appear only at its zenith. At first there were no distinctions of vocation. The pursuits of war and politics were common to all free men; and, while admitting of class distinctions, they allowed no vocational differences. The priesthood alone represented a class which followed a specific vocation, while also engaging in other occupations, particularly in politics. The earliest forms of specialized vocations were foreshadowed even in the totemic age. In the heroic period, they merely adapt themselves to the new social order resulting from the rise of a ruling class and the consequent class distinctions. Under the influence of deity cults, moreover, the social position of the priesthood changes, as do also its vocational practices. The transformations in cult are an important factor in elevating the class and the profession concerned in its administration, securing for them a more or less important, and in some cases a dominant, influence upon political life. In contrast with this, all forms of human labour not connected with politics and warfare aredegraded. This results in occupational differences, which are henceforth closely bound up with class distinctions. Thedepreciation of which we speak, however, is not of sudden occurrence, nor does it appear everywhere to the same extent. The conditions that give rise to political society also involve a participation in the pursuits of politics and warfare on the part of the freeman, who, as an agriculturist, breeds his own domestic animals and guides his plough over the fields. Due to these same conditions, moreover, agriculture maintains a respected position even in later times, partly, no doubt, as a result of the fact that the free farmer continues to enjoy the privilege of participating in political and military affairs. Various accessory vocations come to be sundered out from the tasks of the early agriculturist, who, originally, himself manufactured the implements required for his work and was thus the primitive artisan. Political activity and the equally esteemed military vocation come more and more to be given the place of highest honour. The occupation of the farmer and that of the wealth-accumulating merchant, however, are also held in high regard, doubtless because of the growing desire for property. The independent task of the artisan, as well as art—the latter at first scarcely distinguishable from artisanship—are either left to the dependent population and slaves or, after class distinctions are well developed, are given over to the lower class of citizens as occupations of less esteem.
But in the case of vocational distinctions, just as in that of class differentiation, the process of depreciation is succeeded by a tendency towardequalization. This is due to a general shift in values. The rhapsodist of Homeric times, though welcomed as a guest by the superior classes, was not himself regarded by them as a companion of equal rank. It is only gradually that the value placed on an art becomes transferred to the artist himself. That this occurs is due in an important measure to the fact that the arts of outstanding significance—gymnastics, poetry, and music—are not practised merely by a specific profession, but are also favourite occupations of the warrior or the statesman in his hours of leisure. The respect accorded the artist is gradually extended to such other arts as already constitute vocationallabour; as external culture becomes more refined, even the artisan wins a growing esteem, through his decoration of weapons, implements, and clothing. In the case of the arts that require a particularly high degree of vocational training, it is significant to note that, in spite of the high estimate placed on his product, the artist himself is able to rise but slowly above the plane of the mere artisan. Thus, the measure of esteem accorded to the arts gradually diminishes, according as we pass from those that spring up spontaneously, solely from inner impulse, to those that minister to the satisfaction of needs. The immediate cause for this gradation of values probably lies in the fact that political activity, which here forms the mediating link, is itself of the nature of a free vocation, requiring the exercise particularly of mental capacities. For this reason, however, the regard in which the various occupations are held tends to be equalized according as class distinctions disappear. The latter, however, occurs in proportion as all citizens come to acquire equal privileges in the exercise of political rights. To the majority, indeed, political activity remains but a secondary vocation, being overshadowed by the main occupation, which requires the greater amount of attention. Because of its political character, however, it is the secondary vocation that primarily determines the social position of the individual. The fact that all citizens come to participate in political activity, therefore, even though failing to equalize the esteem in which the various occupations were held, nevertheless caused the disappearance of the distinctions in personal status which occupational differences originally involved.
The differentiation of classes and vocations is conditioned, in a large measure, by a change in the spacial distribution of the population. This change is a result of the rise of political society, and comes to be the outstanding external characteristic of the State as soon as the latter begins to assume definite form. I have in mind thefoundation of cities. In the totemic age,there were no cities, but at most fair-sized groups of huts or houses, forming villages. These village settlements were all equally independent; they differed at most as regards spacial extent. But the city, in itsoriginalform, always exercised control over a smaller or larger stretch of territory, consisting either of separate farms or of villages with the territory belonging to them. As the seat of political power, the city was an infallible indication of the existence of the State. Hence it is that those who discuss the original forms of political society are not infrequently led to regard State and city as identical. Such an identification, however, is not at all justifiable. Even in their beginnings the Greek States and the Roman State were not mere city States; all that may be said is that the political power was centred in the city. This is true, also, of the original city as it existed in the Orient and in the ancient civilizations of Mexico and Peru. The same characteristic distinguishes the early city from the many later sorts of cities that arose in response to the needs of intercourse and trade. The original city was the abode of the political and military leaders of the people who occupied the new territory and thus formed a State. This appears most strikingly in the case of Sparta—the State which preserved most fully the features of an earlier form of social organization. One might almost be inclined to say that the men's club developed by totemic tribal organization was here present in the form of a city of men established within a political order. But even in Athens and in the other Greek States the city was only the seat of the political power, whereas the State embraced the adjacent territory as well. The centre of the city, therefore, was the castle. This constituted the military defence of the State, and was the dwelling of the king or, in republican forms of government, of the highest officials. Connected with the castle was the temple of the guardian deity of the city. The immediate environment of the temple was the meeting-place of those who inhabited the territory protected by the castle and its temple. Here they assembled, partly for trade and partly for deliberativeor popular gatherings. The economic and political intercourse which centred about the castle fostered the growth of a larger city, inasmuch as numbers of the rural inhabitants gradually settled down under the close protection of the castle. Directly connected with this development was the separation from agriculture of the occupations of art, handicraft, trade, and eventually of political office. Because of their enormous extent, the great Oriental realms included a number of city centres. Yet even here the original conditions maintained themselves, inasmuch asoneof these cities continued to be not only the political seat of the State but also the chief centre of cult. The guardian deity of the leading city was likewise the guardian deity of the State, and, as such, was supreme among the gods. Cult was thus patterned after the political order. This influence of the city upon cult was reflected in temple construction. The totemic age possessed no cities, and it likewise lacked temples. Temples, therefore, are not only indicative of deity cult, whose development is bound up with political society, but they also signalize the existence of cities. The temple itself was characterized by a very rich architecture. In Babylonia it was the mighty tower, in Egypt the pair of obelisks at the entrance, which proclaimed to the surrounding neighbourhood the dwelling-place of the deity and the seat of political power. The two were identical, for it was in the name of the guardian deity of the city that the State was originally governed and that justice was meted out. In Oriental realms, the ruler was the representative of the deity, and the priests were the State officials, as well as the devotees of science and art. Tradition, together with numerous usages preserved in custom and laws, testify to the same original unification of religious and political authority in Greece and Rome. Although the State here became secularized at a comparatively early time, and art and science likewise freed themselves from theocratic dominance, the idea of a guardian deity of the city and State was long maintained. It was this that invested the secularized legal system with a halo ofsanctity. If the course of development in Greece and Rome differed from that of the Oriental realms, this may be due, in an important measure, to the fact that they very early broke up into a considerable number of independent city States. Herein, of course, is expressed the character of Indo-Germanic peoples. Even in very ancient times they manifested a disposition to allow free play to the assertion of the individual personality; this differentiates them from the Semitic race, with its strong inclination to hold fast to traditional norms. Hence it is that, while the cult of the various Greek cities remained practically the same, the cities themselves became distinct political communities. The status of the Delphic priesthood, in whom this unity of cult very early found its expression, was therefore naturally reduced to that of an advisory council. In the individual States, the dominance of political interests and the struggle for power, which was heightened by the personal inter-relationships within the narrow circle of the city, deprived the priesthood of all authority except over cult. True, in the case of Rome, the original union of political order and religious cult was firmer and more permanent, due to the fact thatonecity early gained the supremacy over the other Italian cities and States. And yet, hand in hand with the extension of political dominance, went the adoption of cults that were previously strange. This led to a number of competing priest-associations, none of which could gain the leadership, since all alike were but servants of the political power.
Thus, in spite of considerable diversity as to incidental conditions, city and State were closely bound up with each other in the development of political society. We find no city apart from a State, and it is doubtful whether there was a State without a city as the seat and centre of its political power. But this correlation obtained only during the period of the genesis of States and of the attendant rise of theoriginalcity. Once States have come into existence, many other conditions may lead to the establishment of a community which, as regards extent and relative political independence, is of the nature of a city. Such phenomena maybe referred to as thesecondaryfoundation of cities; they are possible only on the basis of a previously existing political society. An approximation to original conditions occurs when a victorious State either establishes cities in the conquered provinces, centralizing in them the power over the respective territories, or transforms cities that already exist into political centres. Occurrences of this sort were frequent during the extension of Alexander's world-dominion and at the time of the Roman Empire. The same fact may be observed at a later period, in connection with the occupation of the Italian cities by the Goths and Lombards. The German cities founded during the Middle Ages differ still more widely from the original type. These cities first arose as market centres, and then gradually acquired political privileges. Thus, the process of the original foundation of cities was, as it were, reversed. In the latter case, the castle came first and the market followed; the mediæval city began as a market and reached its completion with the building of a castle. In mediæval times, however, leadership was not originally vested in the city but in rulers who occupied isolated estates scattered here and there throughout the country. Yet these secondary phenomena and their further development do not belong to our present problem of the origin of political society.
The social regulations which we have thus far considered find their consummation in thelegal system. This possesses no content independent of the various social institutions, but merely provides certain norms of action with a social sanction. As a result, these norms are protected against violation or are designated as regulations which, whenever necessary, are defended against violators by the use of external force. Thus, the legal system does not involve the outright creation of a social order. It consists primarily in the singling out, as definite prescriptions, of certain regulations that have already arisen in the course of social life, and that are for the mostpart already maintained by custom. The enforcement of these regulations is expressly guaranteed by society, and means are established whereby this pledge is to be redeemed. Thus, the most important social institutions—the family, the classes, the vocations, village settlements and cities, and also the relations of property, intercourse, and contract, which these involve—were already in existence before becoming constituent parts of a legal system. Moreover, the advance beyond custom and the settlement of difficulties case by case was not made suddenly or, much less, at the same time in all regions, but came only very gradually. The formulation of laws did not, as a rule, begin in connection with the political community and then pass down to the more restricted groups, ending with the single individual. On the contrary, law began by regulating the intercourse of individuals; later, it acquired authority over family relations, which had remained under the shelter of custom for a relatively long period; last of all, it asserted itself also over the political order. That is to say, the State, which is the social organization from which the legal system took its rise, was the very last institution in connection with which objective legal forms were developed. We may account for this by reference to a factor which played an important rôle from the very outset. After the legal system had once grown up out of custom and had subjected many of the important fields of the latter to its authority, it was able of itself to create regulations, which were thus from the very beginning legal prescriptions. Such primarily legal regulations arose in connection with conditions in which, frequently, the fact that there be some law was of more importance than the precise character of the law. But even in these cases the regulations were always connected with the larger body of law that was rooted in custom. This larger body of law was but supplemented by ordinances that were called into being by temporal and cultural conditions.
The transition from custom to law reflects the joint influence oftwofactors, which, particularly at the outset,were themselves closely connected. The first of these factors consists in the rise of firmly established forms of rulership, which are indicative also of the transition leading toStates; the other is thereligioussanction which was attached to those regulations that were singled out by the law from the broader field of custom. Both factors indicate that the heroic age properly marks the origin of the legal system, even though it be true that all such changes are gradual and that occasional beginnings of the legal system, therefore, may be found at an earlier period, in connection with the very ancient institution of chieftainship. As regards the external social organization and the religious life of the heroic age, these are characterized, respectively, by the development of strict forms of rulership and by the origin of a deity cult. Each of these social phenomena reinforces the other. The kingdom of the gods was but the terrestrial State projected into an ideal sphere. No less was the development of the legal system dependent upon the union of the two factors. Neither the external force of the political authority governing the individual nor the inner constraint of religious duty sufficed in itself to establish the tremendous power characteristic of the legal system from early times on. It is true that, at a later period, the feeling that law represents a religious duty gave way to the moral law of conscience. The latter, however, itself owes its origin to the increasing influence of the political authority which is at the basis of the legal system; moreover, as an inner motive reinforcing the external compulsion of the law, it continued to preserve a similarity to the religious source from which it sprang. True, a significant change occurred. During the early stages of legal development, the weight of emphasis fell on the religious aspect of law, whereas it later more and more shifted to the political side. At first, the entire body of law was regarded as having been given directly by the deity, as was the case, for example, with the Ten Commandments of Moses and with the Israelitic Priests' Code, which clothes even the most external modes of life in the garb of religiouscommands. Sometimes a twofold credit is given for the introduction of the legal system, in that the one who wields the power is regarded as administering justice both in his own name and as commissioned by the gods. An illustration of this is the Babylonian code of Hammurabi. It is, naturally, when the priests wield the authority that the laws are most apt to be ascribed exclusively to the gods. The tendency, on the other hand, to give the ruler a certain amount of credit for legislative enactments, is greatest whenever the ruler occupies also the position of chief priest. The direct impetus to such a union of priesthood and political authority is to be found in the rise of the legal system itself, for this resulted from a fusion of religious and political motives. The idea that the earthly ruler is the terrestrial representative of a world-governing deity, or, as occurs in extreme cases, that he is the world-governing deity himself, is, therefore, a conception that is closely bound up with the rise of political society and that receives pregnant expression in the earliest forms of the legal system. No trace of such a conception was associated with the chiefs of the totemic period. Their position was entirely distinct from that of the magicians, the shamans, and the medicine-men, who were the original representatives of the priestly class that later arose in the age of deity cults. But it is for this very reason that the mandates of the totemic chief cannot be said as yet to have constituted a legal system; they were commands which were given as occasion demanded, and which were determined partly by the will of the chief and partly by transmitted customs. Secular and religious motives are to be found in similar combination elsewhere, even among tribes that are usually regarded as peoples of nature, as, for example, particularly those of Polynesia. In cases such as these, however, there are present also the beginnings of a legal system, as well as its correlates, the fundamentals of a political organization and of a deity cult. Whether these are the remnants of a culture brought by these migratory peoples from their original Asiatic home, or whether they represent an independentlyachieved culture that has fallen into decay, we need not here inquire.
That the development of the legal system is dependent upon the first of these phenomena—that is, upon political organization—is directly apparent from the fact that the administration of justice in general presupposes two sources of authority. Here again the beginnings are to be found in the totemic age. During this period, the administration of justice was vested, in the first place, in a relatively restricted group of the older and experienced men, such as exercised authority over the older members of the horde even in pretotemic times. Judicial powers were assumed, in the second place, by individual leaders in the chase or in war. The authority of the latter, it is true, was temporary, frequently shifting with changing circumstances; it was all the more effective, however, for the very reason that it was centred in single individuals. Now, the initial step in the formation of a legal system—which, as already remarked, was at first concerned merely with what we would call civil justice—was taken when the quarrels of individuals came to be settled in the same way as were matters of common concern to the clan or tribe—namely, by the decisions of the two long-established authorities, the 'council of elders,' as they later continued to be called among many civilized peoples, and the individual leader or chieftain. Even in relatively primitive times, fellow-tribesmen or clansmen who disagreed as to the ownership of an object or perhaps as to whether or not some mutual agreement had been kept, and who preferred a peaceful decision to settlement by combat, were accustomed to seek the decision of the elders or of a man of commanding respect. Thus, these initial stages of legal procedure indicate that the earliest judge was anarbitrator; he was freely selected by the disputants, though he constantly became more firmly established in his position as a result both of his authority in the general affairs of the tribe and of tradition. We next find theappointedjudge, who owes his office to political authority, and who decides particular controversies, not because he has been asked to do so bythe parties themselves but 'of right' and as commissioned by the State; supported as he is by the political power, his decision has compelling force. As soon as the State assumes the function of deciding the controversies of individuals, the judge becomes anofficial. Indeed, he is one of the first representatives of officialdom. For, in the early stages of political organization, all matters other than the quarrels of individuals are regulated by ancient customs, except in so far as war and the preparation for war involve conditions that necessarily place authority of an entirely different sort in the hands of particular individuals. Thus, together with the offices of those who, though only gradually, come to have charge of the maintenance of the military organization even in times of peace, the office of the judiciary represents one of the earliest of political creations. In it, we find a parallel to the division of power between the ruler and a separate council of experienced men, an arrangement that represents a legacy from the period of tribal organization, but that only now becomes firmly established. The individual judge and the college of judges both occur so early that it is scarcely possible to say whether either antedated the other. Affecting the development just described are two other conditions, capable of bringing about a division of judicial authority at an early time. One of these conditions is the connection of the state with deity cult, as a result of which the secular power is limited by the authority of the priesthood, whose chief prerogative comes to be penal justice. The second factor in the differentiation of judicial functions consists in the institution of chieftainship, one of the two characteristic features of political society. Chieftainship involves a tendency towards a delegation of the supreme judicial authority to the ruler. This is particularly the case during the first stages of political organization, which still reflect the fact that the external political power of the chieftain grew up out of the conditions attendant upon war. Even though the secular judiciary, which originated in the council of elders, or, in certain cases, the judicial office of thepriest, also continues to be maintained, the ruler nevertheless reserves for himself the authority over the most important issues. Particularly in doubtful cases, in which the ordinary judge has no traditional norms to guide his decision, the 'king's court' intervenes in order, if necessary, to secure a recognition of the claim of reasonableness. This is especially apt to occur in connection with capital crimes. Hence it is that, even after penal law has once become a matter of general governmental control—which, as a rule, occurs only at a later stage of legal development—the final decision in criminal cases usually rests with the ruler. Generally, moreover, it is the ruler alone who has sufficient power to put an end to the blood-revenge demanded by kinship groups. Owing to the fact that, in his capacity of military leader, the ruler possesses power over life and death during war with hostile tribes, he comes to exercise the same authority in connection also with the feuds of his fellow-tribesmen. Modern States have retained a last remnant of this power in the monarch's right to pardon, an erratic phenomenon of a culture that has long since disappeared.
Thus, the State, as such, possesses an external power which finds its most direct expression—just as does the unity of the State—in the exercise of judicial authority on the part of the ruler. In the beginnings of legal development, however, law always possesses also areligious sanction. True, the above-mentioned unification of the offices of priest and judge or of the authority of priest and ruler—the latter of which sometimes occurs in connection with the former—may be the result of particular cultural conditions. This, however, but indicates all the more forcibly how permanent has been the religious sanction of law. Such a sanction is evidenced by the words and symbolisms that accompany legal procedure even in the case of secular judges and of the relations of individuals themselves. Not without significance, for example, is the solemnity manifested in the tones of those who are party to a barter, a contract, or an assignment of property. Indeed, their words areusually accompanied by express confirmations resembling the formulas of prayer and imprecation; the gods are invoked as witnesses of the transaction or as avengers of broken pledges. Because of the solemnity of the spoken word, speech was displaced but slowly by writing. Long after the latter art had been acquired, its use continued to be avoided, not only in the case of legal formulas, such as the above, but occasionally even in connection with more general legal declarations. In the Brahman schools of India, for example, the rules of legal procedure, as well as the hymns and prayers, were for centuries transmitted purely through memory; we are told, moreover, that in ancient Sparta it was forbidden to put the laws in writing. To an age, however, which is incapable of conceiving even a legal transaction except as a perceptual act, the spoken word by itself is inadequate to give the impression of reality. As an indication that he has acquired a piece of land, the purchaser lifts a bit of soil from the earth, or the vendor tosses a stalk of grain to him—a ceremony which is imitated in the case of other objects of exchange and which has led to the word 'stipulation' (from the Latinstipulatio, throwing of a stalk). Another symbol of acquisition is the laying on of the hand. Similar to it is the clasp of right hands as a sign of mutual agreement. By this act the contracting parties pledge their freedom in case they break the promise which they are giving. When the fact that the two parties lived at some distance from each other rendered the hand clasp impossible, the Germans were accustomed to exchange gloves. One who challenged another to a duel likewise did so by the use of a glove, even though his opponent was present. By throwing his glove before his opponent the challenger gave expression to the distance which separated him in feeling from his enemy. In this case, the symbol has changed from a sign of agreement to the opposite. All the symbols of which we have been speaking agree in having originally been regarded, not as symbols, but as real acts possessing certain magical potencies. When an individual, who is acquiring a piece of land, picks up a bitof soil while speaking the appropriate words, he intends to produce a magical effect upon the land, such that disaster will come to any one who may seek to deprive him of it. He who offers his hand in sealing a compact signifies that he is prepared to lose his freedom in case he fails to keep his word. For this reason the shaking of hands is sometimes supplemented by the extension of a staff—a special use of the magical wand which occurs particularly when the pledge is administered by a judge. In a second stage of development, the act loses the status of reality, but it remains associated with religious feelings. At a third stage, it becomes a mere matter of form, though the solemnity with which it envelops the transaction adds to the impressiveness of the latter and fixes it more firmly in memory.
Combined with the word, thus, is a gesture that faithfully reflects its meaning. Moreover, other individuals are summoned to witness the legal transaction. This is done, not so much that these persons may later be able to give definite testimony, as that they, too, shall hear the word and see the gesture, and so, in a sense, enhance the reality of that which is transpiring. Besides this oldest form of witness, who is not to testify regarding that which he has experienced, as occurs in later times, but who is merely present on the occasion of the legal transaction, there is thecompurgator, who substantiates the oath of the man involved. The latter fortifies his statements by invoking the gods as witnesses. Now, the oath of the compurgator does not relate to the testimony of his companion, but merely to the companion himself; it is a pledge to share the punishment of the latter in case he swears falsely. As in battle, so also in calling upon the terrible powers whose vengeance is to fall upon the perjurer, companion stands protectingly by the side of companion. Thus, the oath itself is a ceremony both of cult and of magic. As a cult activity, the oath was originally given at the place where the cult was administered—that is, in the immediate presence of the gods; the method of procedure was to raise the fingers and to point them directly to the gods, who were regarded aswitnesses of the act. The magical nature of the oath appears in the fact that the latter involved the conjuration of an object, which was to bring disaster upon him who took the oath in case he swore falsely. Thus, the Germans swore by their battle-steeds or their weapons, and, in so doing, they laid their hands upon these objects; or, instead of the latter, they used an oath-staff—one of the numerous metamorphoses of the magical wand—which was extended toward him who received the oath, whether the opposing party or the judge. This oath signified that the object by which the individual swore would bring ruin upon him in case he committed perjury. The oath, therefore, came to be a fixed and definitely prescribed means of judicial procedure, though this occurred only after deity cult effected a union of the two factors, cult and magic. Nevertheless, the beginnings of this development are to be found as early as the totemic age, and they approximate to the cult-oath particularly in those regions that practise ancestor worship. The Bantu, for example, swears by the head of his father or the cap of his mother, as well as by the colour of his ox. In all these cases, the intention is that the perjurer shall suffer the vengeance which the demon of the deceased or of the animal visits upon him who swears falsely.
Closely related in its motives to the oath is another legal institution, theordeal. In the earliest form of the ordeal, the strife of individuals was settled by a duel. Such an ordeal was very similar to the sword-oath, at least among Indo-Germanic peoples. Just as the man who swore by his weapons invoked death by their agency in the indefinite future, so each of the participants in the duel sought to bring these magical powers into immediate effect in the case of his opponent. Not to him whose arm is the stronger, but to him who has the stronger cause, will the gods grant victory through the magic of his weapon. Like the oath, therefore, the ordeal was originally a method of legal procedure in civil cases. Like the oath, furthermore, it was, in its beginnings, a means whereby individuals settled theircontroversies independently of a judge. It is at this point that the punitive action of individuals gives way to public legal procedure. Originally, crimes against life and property were dealt with by individuals; the endeavour to secure the judgment of the gods by means of the duel was doubtless one of the earliest steps by which the penal process became a public procedure, and the punishment itself, therefore, became raised above the plane of mere revenge. Blood revenge involved an unexpected attack in the open or from ambush. To renounce this custom in favour of the duel, therefore, was in harmony with the character of the heroic age. For this was the period in which the ideal of manly honour was rapidly gaining strength, and in which, therefore, it was regarded as unworthy under any circumstances to take the life of a defenceless man. The principle accepted as self-evident in war, namely, that the person attacked have an opportunity to defend himself, became, in a warlike age, a maxim applying also to times of peace. Moreover, even though it be true of the ordeal as of the oath that, at the outset, cult was secondary to magical conjuration, nevertheless, the dominance of the latter varied with the degree in which the State freed penal justice from the passion for revenge on the part of individuals. The ordeal thus came to be more than merely a combat between the accuser and the accused. The judge in charge of the combat acquired the duty of determining guilt or innocence, and, as a result, the ordeal assumed other forms. Only the one who was accused was now involved. The ordeal changed from a magic combat into amagic test, which came to be regarded as a direct revelation of the decision of the deity. This led to the adoption of means of proof other than combat. It was obviously cult that caused penal justice as such to be taken out of the hands of private individuals. For this reason it was particularly sacrilege that demanded a magical judgment independent of the combat of individuals. In cases of sacrilege, the deity himself tested the assertions of the one who endeavoured to free himselffrom the charges of religious crime. The means for determining guilt or innocence were fire and water—the same agencies that had long been employed by religious cult for purposes of lustration. That the tests by water and by fire used in connection with the witchcraft cases of mediæval times still possessed a magical significance is unmistakable. If the witch sank in the water—that is, if she was received by the purifying element—she was guiltless. If the accused was not injured by holding a glowing iron in his hand or by walking barefooted over coals, this also was regarded as indicative of innocence. Apparently the underlying conception was that the deity who gave to water and fire the power of purifying a sinner from his guilt also communicated to them the power of freeing the innocent from an accusation and of withholding assistance from the guilty. Hence it is that while these modes of divine judgment were not, indeed, as common as was purification by means of water and fire, they nevertheless appeared again and again, so far as their fundamental characteristics are concerned. They were resorted to by the Germanic peoples, and were prevalent also in Græco-Roman antiquity, and in India; trial by water was likewise a custom in Babylonia, where it was prescribed by Hammurabi as a means by which a suspected person might free himself. We have noticed how, in the case of the ordeal and particularly of its earliest form, judicial combat, the legal controversies of individuals concerning rights relating to property, buying and selling and other agreements, came to be considered from the standpoint ofpunishment. This process is characteristic of the development of penal law in general.
As an institution protected by the State, the administration of penal law everywhere grew up out of civil law. The judge who was appointed by the State to arbitrate personal controversies developed into a criminal judge. Still later these two judicial offices became distinct. This separation began in connection with the most serious offences,such as seemed to demand a separate tribunal. The determining feature, in this instance, was, at the outset, not any qualitative characteristic of the offence but its gravity. Now, at the time when deity cults were at their zenith, the most serious crimes were held to be those connected with religion, namely, temple sacrilege and blasphemy. Only at a relatively late period were crimes against life and limb classed along with those affecting religion; to these were added, shortly afterwards, violations of property rights. That murder, though the most frequent crime of early culture, should not be penalized by political authority until so late a period, is directly due to the fact that it has its origin in the strife of individuals. In such a strife, each man personally assumes all consequences, even though these consist in the loss of his life. Even to slay a man from ambush is regarded as justifiable by primitive society if an individual is avenging a crime from which he has suffered. As family and kinship ties become stronger, the family or kin participates as a group in the quarrels of its individual members, just as it does in war against hostile tribes. A murder, whether or not it be an act of vengeance, is avenged by a fellow-member of the victim, either upon the murderer or upon some one of his kin, inasmuch as in this case also the group is regarded as taking the part of the individual. This is the practice ofblood-revenge, a practice which antedates the heroic age but which nevertheless continues to exercise a powerful influence upon it. Blood-revenge is so closely bound up with totemic tribal organization that it was probably never lacking wherever any such system arose. Its status, however, was purely that of a custom, not that of a legal requirement. It was custom alone, and not political authority, that compelled one kinsman to avenge the death of another. It was custom also that sought to do away with the disastrous results of a continuous blood-feud by means of an arrangement that came to take the place of blood-revenge. This substitute was the 'wergild,' which was paid as an indemnity by the malefactor to the family of the one who had been murdered, and which thusmaintained precisely the same relation to blood-revenge as did marriage by purchase to marriage by capture. In the former case, however, the substitution of a peaceful agreement for an act of violence gave the political authority its first occasion to exercise its regulative power. This first manifestation of power consisted in the fact that the political authority determined the amount which must be paid in lieu of the blood-guilt. With the institution of wergild the entire matter becomes one of civil law. Only one further step is necessary, and the law of contract will indirectly have established the penal authority of the State. This step is taken when the Statecompelsthe parties to enter into an agreement on the basis of the wergild. The advance, however, was not made at a single bound, but came only through the influence of a number of intermediate factors. That which first demanded a legal determination of the amount of expiation money was the necessity of estimating the personal value of the one who had been murdered, according as the individual was free-born or dependent, of a high or of a low class, an able-bodied man or a woman. Such a gradation in terms of general social status suggested the propriety of allowing temporary and less serious injuries to life and limb to be compensated for on the basis of their magnitude. But the estimation of damages in such cases again made civil jurisdiction absolutely necessary.
Closely interconnected with this complex of social factors, and imposing a check upon the impulse for vengeance that flames up in blood-revenge, was a religious influence—the fear of contaminating by a deed of violence a spot that was sanctified by the presence of invisible gods. No violence of any kind was allowed within sacred precincts, particularly in places set apart for sacrifice or for other cult ceremonies; least of all was violence tolerated in the temple, for the temple was regarded as the dwelling of a deity. Such places, therefore, afforded protection to all who fled to them from impending blood-revenge or other sources of danger. The sacred place also stood under the protectionof the community; any violation of it brought down upon the offender the vengeance of the entire group, for the latter regarded such sacrilege as a source of common danger. Thus, the protection of thesanctuarycame to be a legal right even at a time when retribution for the crime itself was left to the vengeance of individuals. The right of protection afforded by the temple, however, was sometimes held to exist also in the case of the dwellings of persons of distinguished power and esteem, particularly the dwellings of the chief and of the priest. Indeed, prior to the existence of public temples, the latter were doubtless the only places of refuge. In this form, the beginnings of a right of refuge date back even into the totemic age. At that early time, however, the protection was apparently due, not so much to directly religious factors, as to the personal power of the individual who afforded the refuge, or also, particularly in Polynesia, to the 'taboo' with which the upper classes were privileged to guard their property. But, since the taboo was probably itself of religious origin, and since the medicine-man, and occasionally also the chief, could utilize demoniacal agencies as well as his own external power, even the very earliest forms of refuge were of the general nature of religious protection. In some cases, the right of refuge eventually became extended so as to be connected not only with the property set apart for the chief or the priest but also with the homes of inferior men. This, however, was a relatively late phenomenon. Its origin is traceable to the cult of household deities, first of the ancestral spirits who guard domestic peace, and then of the specific protective deities of the hearth by whom the ancestral spirits were supplanted. As a rule, it was not the criminal but the visiting stranger who sought the protection of the house. The right to hospitality thus became also a religiously sanctioned right to protection. The guest was no less secure against the host himself than against all others. The right of protection afforded by the house, therefore, should probably be interpreted as a transference of the right of refuge inherent in sacred precincts. The protective right of thechief was doubtless the beginning of what in its complete development came to be household right in general.
The divine protection afforded by the sanctuary obviously offers but a temporary refuge from the avenger. The fugitive again encounters the dangers of blood-revenge as soon as he leaves the sacred precincts. Nevertheless, the time that is thus made to elapse between the act and its reprisal tempers the passion of the avenger, and affords an opportunity for negotiations in which the hostile families or clans may arrange that a ransom be paid in satisfaction of the crime that was committed. Moreover, the chief or the temple priest under whose protection the fugitive places himself, is given a direct opportunity for mediating in the capacity of an arbitrating judge, and later, as the political power gradually acquires greater strength, for taking the measures of retribution into his own hands. Revenge, thus, is changed into punishment, and custom is displaced by the norm of law, which grows up out of repeated decisions in the adjudication of similar cases.
Sojourn in a place of refuge resembles imprisonment in that it limits personal freedom. One might, therefore, be inclined to suppose that, through a further development other than that described above, the sanctuary led to a gradual moderation of punishment by introducing the practice ofimprisonment. Such a supposition, however, is not borne out by the facts. At the time when the transition from the place of refuge into the prison might have taken place, the idea of reducing the death penalty to the deprivation of freedom was still remote. The value which the heroic age placed on the life of the individual was not sufficiently high to induce such a change, and the enforcement of prison penalties would, under the existing conditions, have appeared difficult and uncertain. Hence imprisonment was as yet entirely unknown as a form of punishment. Though the State had suppressed blood-revenge, it showed no less an inclination than did ancient custom to requite not only murder but even milder crimes with death. Indeed, inasmuch as the peaceful mode of settlement by ransom gradually disappeared,it might be truer to say that the relentlessness of the State was even greater than that of blood-revenge. The oldest penal codes were very strongly inclined to impose death penalties. That the famous Draconian laws of Athens became proverbial in this respect was due merely to the fact that other ancient legal codes, though not infrequently more severe, were still unknown. The law of King Hammurabi punished by death any one who stole property belonging to the court or the temple, or even to one of the king's captains; the innkeeper who charged her guests extortionate prices was thrown into the water, and the temple maiden who opened a wine-shop was burned to death. Whoever acquired possession of stolen goods, or sheltered a runaway slave, was put to death, etc. For every crime that was judged to be in any way serious, and for whose expiation a money ransom was not adequate, the law knew only the one penalty, death. The earliest law made no use of custody except in connection with civil justice. The debtor was confined in the house of the creditor. This simply enforced the pledge involved in the shaking of hands at the time when the debt was contracted—an act by which the debtor vowed to be responsible for his debt with his own person.
The confinement of the debtor was at first a matter that was left to individuals, and its original sanction was custom; later, however, it came under the supervision of the legal system of the State. This suggested the adoption of confinement in connection with other crimes, in which the death penalty appeared too severe a punishment and the exaction of money one that was too light, as well, primarily, as too dependent upon the wealth of the guilty individual. Contributory to this change, was a practice which, similarly to confinement, was also originally an arrangement between individuals, and was rooted in custom. I refer to the holding of individuals as pledges, to the hostage, who gave security with his own person for the promise of another. The hostage is of the nature of a forfeit, guaranteeing in advance the fulfilment of the obligation. For this reason the holdingof hostages came to be practised not merely in the case of property contracts but in connection with every possible obligation of a private or a public nature. This development was furthered by the fact that hostages came to be held in times of war, and, as a result, were given also upon the assumption of public duties. In both cases, custody changed from a private arrangement into a public concern. This change made it possible for a judge to impose the penalty of imprisonment whenever the transgression did not appear to warrant death. Imprisonment is a penalty that admits of no fewer degrees than does a fine, and has the advantage of being independent of the irrelevant circumstance of the wealth of the one who is condemned. Moreover, the restriction of arbitrary deprivations of freedom in favour of custody on the part of the political power, makes it possible to hold a suspect whose case requires examination before a judicial verdict can be given. Thus arises the practice of confinement during investigation, an incidental form of legal procedure which is influenced by, and in turn reacts upon, the penalty of imprisonment. Such confinement makes it possible to execute the penalty of imprisonment in the case of those whom investigation shows to be guilty. But this is not its only important result. It also leads to those barbarous methods which, particularly during the early stages of this development, are connected with the infliction of the punishment itself as well as with the preceding inquisitorial activities. The public administration of justice is still affected by the passion for vengeance which comes down from the earlier period of blood-revenge. To this coarser sense of justice a merely quantitative gradation of punishment is not satisfactory; the punishment must rather be made to correspond qualitatively with the crime that has been committed. Hence the many different modes of prison punishment—more numerous even than the modes of inflicting the death penalty—and of the means of torture, which are often conceived with devilish cunning. These means of torture come to be used also in the inquisitionalprocedure; the endeavour to force a confession causes them to become more severe, and this in turn reacts upon the punishment itself. On the whole, the ultimate tendency, of imprisonment was greatly to restrict the death penalty and thus to contribute to more humane methods of punishment. Nevertheless, it is impossible not to recognize that this result was preceded by an increasing cruelty. The fact that the prisoner was under the control of the punitive authority for a longer period of time led to a multiplication of the means of punishment. How simple, and, one might say, how relatively humane, was blood-revenge, satisfied as it was to demand life for life, in comparison with the penal law of the Middle Ages, with its methods of forcing confession by means of the rack and of various forms of physical suffering and of death penalties!