CHAPTER VII

26Laurie,Ethica, p. 253sqq.

27Kant,Kritik der praktischen Vernunft, i. 1. 3 (Sämmtliche Werke, v. 89).

The virtues are broad generalisations of mental dispositions which, on the whole, are regarded as laudable. Owing to their stereotyped character, it easily happens, in individual cases, that the possession of a virtue confers no merit upon the possessor; and, at least from the point of view of the enlightened moral consciousness, a man’s virtues are no exact gauge of his moral worth. In order to form a just opinion of the value of a person’s character, we must take into account the strength of his instinctive desires and the motives of his conduct. There are virtues that pay no regard to this. A sober man, who has no taste for intoxicants, possesses the virtue of sobriety in no less degree than a man whose sobriety is the result of a difficult conquest over a strong desire. He who is brave with a view to be applauded is not, as regards the virtue of courage, inferior to him who faces dangers merely from a feeling of duty. The only thing that the possession of a virtue presupposes is that it should have been tried and tested. We cannot say that people unacquainted with intoxicants possess the virtue of sobriety, and that a man who never had anything to spend distinguishes himself for frugality. For to attribute a virtue to somebody is always to bestow upon him some degree of praise, and it is no praise, only irony, to say of a man that he “makes a virtue of necessity.”

Attempts have been made to reconcile the Aristotelian and the Kantian views of the relation between virtue and effort, by saying that virtue is the harmony won and merit is the winning of it.28This presupposes that a man to whom virtue is natural has had his fights. But, surely, it is not always so. Who could affirm that every temperate, or charitable, or just man has acquired the virtue only as a result of inward struggle? There are people to whom some virtues at least are natural from the beginning, and others who acquire them with a minimum of effort.

28Dewey,Study of Ethics, p. 133sq.Simmel,Einleitung in die Moralwissenschaft, i. 228.Cf.also Shaftesbury ‘Inquiry concerning Virtue and Merit,’ i. 2. 4, inCharacteristicks, ii. 36sqq.

There has been much discussion about the relation between virtue and duty. It has been said that “they are co-extensive, the former describing conduct by the quality of the agent’s mind, the latter by the nature of the act performed”;29that they express the same ideal, virtue subjectively, duty objectively;30or that virtue, in its proper sense, is “the quality of character that fits for the discharge of duty,” and that it “only lives in the performance of duty.”31At the same time it is admitted that “the distinctive mark of virtue seems to lie in what is beyond duty,” and that “though every virtue is a duty, and every duty a virtue, there are certain actions to which it is more natural to apply the term virtuous.”32Prof. Sidgwick, again, in his elaborate chapter on ‘Virtue and Duty,’ remarks that he has “thought it best to employ the terms so that virtuous conduct may include the performance of duty as well as whatever good actions may be commonly thought to go beyond duty; though recognising that virtue in its ordinary use is most conspicuously manifested in the latter.”33

29Alexander,op. cit.p. 244.

30Grote,Treatise on the Moral Ideals, p. 22.Cf.Seth,Study of Ethical Principles, p. 239.

31Muirhead,Elements of Ethics, p. 190 n.*

32Alexander,op. cit.p. 243sq.

33Sidgwick,op. cit.p. 221.

It can be no matter of surprise that those who regard the notion of “duty” as incapable of being analysed, orwho fail to recognise its true import, are embarrassed by its relation to virtue. We do not call it a virtue if a man habitually abstains from killing or robbing, or pays his debts, or performs a great number of other duties. We do call chastity and temperance and justice virtues, although we regard it as obligatory on a man to be chaste, temperate, just. We also call hospitality, generosity, and charity virtues in cases where they go beyond the strict limits of duty. “The relation of virtue and duty is complicated,” says Professor Alexander.34“In its common use each term seems to include something excluded from the other,” observes Professor Sidgwick.35But, indeed, the relation is not complicated, for there is no other intrinsic relation between them than their common antagonism to “wrong.” That something is a duty implies that its non-performance tends to evoke moral indignation, that it is a virtue implies that its performance tends to evoke moral approval. That the virtues actually cover a comparatively large field of the province of duty is simply owing to their being dispositions of mind. We may praise the habits of justice and gratitude, even though we find nothing praiseworthy in an isolated just or grateful act.

34Alexander,op. cit.p. 244.

35Sidgwick,op. cit.p. 219.

There has been no less confusion with regard to the relation between duty andmerit. Like the notions of “good” and “virtue,” the “meritorious” derives its origin from the emotion of moral approval; but while the former merely express a tendency to give rise to such an emotion, “meritorious” implies that the object to which it refers merits praise, that it has a just claim to praise, or, in other words, that it ought to be recognised as good. This makes the term “meritorious” more emphatic than the term “good,” but at the same time it narrows its province in a peculiar way. Just as the expression that something ought to be done implies the idea of its not being done, so the word “meritorious” suggests the idea of goodness which may fail of due recognition. And as it is meaningless to speak of duty in a case where theopposite mode of conduct is entirely out of the question, so it would be an absurdity to attribute merit to somebody for an act the goodness of which is universally admitted. Thus “meritorious” involves a restriction. It would be almost blasphemous to call the acts of a God conceived to be infinitely good meritorious, since it would suggest a limitation of his goodness.

The emphatic claim to praiseworthiness made by the “meritorious” has rendered it objectionable to a great number of moralists. It has been identified with the “super-obligatory”—a conception which is to many an abomination. From what has been said above, however, it is manifest that they are not identical. As the discharge of a duty may be regarded as a good act, so it may also be regarded as an act which ought to be recognised as good. Practically, no doubt, there is a certain antagonism between duty and merit. We praise, and, especially, we regard as deserving praise, only what is above the average,36and we censure what is below it. No merit is conferred upon him who performs a duty which is seldom transgressed, or the transgression of which would actually incur punishment or censure. We do not think that a man ought to be praised for what his own interest prompts him to perform; and, since the transgression of a moral command which is usually obeyed is generally censured or punished, there is under ordinary circumstances nothing meritorious in performing a duty. But though thus probably most acts which are deemed meritorious fall outside the limits of duty as roughly drawn by the popular mind, we are on the other hand often disposed to attribute merit to a man on account of an act which, from a strict point of view, is his duty, but a duty which most people, under the same circumstances, would have left undischarged. This shows that the antagonism between duty and merit is not absolute. And in the concept of meritper seno such antagonism is involved.

36Merit, as Professor Alexander puts it (op. cit.p. 196), “expresses the interval which separates the meritorious from the average.”

I confess that I fail to grasp what those writers really mean who identify the “meritorious” with the “super-obligatory,” and at the same time deny the existence of any super-obligatory. Do they shut their eyes to the important psychical fact indicated by the term “merit,” or do they look upon it as a chimera inconsistent with a sufficiently enlightened moral consciousness? For my own part, I cannot see how the moral consciousness could dispense with the idea that there are actions which merit praise or reward, which ought to be praised or rewarded. The denial of merit can be defended from a purely theological point of view, but then only with regard to man’s relation to God. It is obvious that a fallen being who is sinning even when he does his best, could not be recognised as good by God and could have no merit. But it is hardly just, nor is it practically possible, that a man should measure his fellow-man by a superhuman standard of perfection, and try to suppress the natural emotion of moral approval and the claims springing from it, by persuading himself that there is no mortal being who ever does anything which ought to be recognised as good.

Quite distinct from the question of merit, then, is that of thesuper-obligatory. Can a man do more than his duty, or, in other words, is there anything good which is not at the same time a duty? The answer depends on the contents given to the commandments of duty, hence it may vary without affecting the concept of duty itself. If we consider that there is an obligation on every man to promote the general happiness to the very utmost of his ability, we must also maintain that nobody can ever do anything good beyond his duty. The same is the case if we regard “self-realisation,” or a “normal” exercise of his natural functions, as a man’s fundamental duty. In all these cases “to aim at acting beyond obligation,” as Price puts it,37is “the same with aiming at acting contrary to obligation, and doing more than is fit to be done, the same with doing wrong.” It can hardly be denied, however,that those who hold similar views have actually two standards of duty, one by which they measure man and his doings in the abstract, with reference to a certain ideal of life which they please to identify with duty, and another by which they are guided in their practical moral judgments upon their own and their neighbours’ conduct. The conscientious man is apt to judge himself more severely than he judges others, partly because he knows his own case better than theirs,38and partly because he is naturally afraid of being intolerant and unjust. He may indeed be unwilling to admit that he ever can do more than his duty, seeing how difficult it is even to do what he ought to do, and impressed, as he would be, with the feeling of his own shortcomings. Yet I do not see how he could conscientiously deny that he has omitted to do many praiseworthy or heroic deeds without holding himself blamable for such omissions.

37Price,Review of the Principal Questions in Morals, p. 204sq.

38Cf.Sidgwick,op. cit.p. 221.

Professor Sidgwick observes that “we should not deny that it is, in some sense, a man’s strict duty to do whatever action he judges most excellent, so far as it is in his power.”39This, as it seems to me, is not a matter of course, and nothing of the kind is involved in the notion of duty itself. We must not confound the moral law with the moral ideal. Duty is the minimum of morality, the supreme moral ideal of the best man is the maximum of it. Those who sum up the whole of morality in the word “ought” identify the minimum and the maximum, but I fail to see that morality is better for this. Rather it is worse. The recognition of a “super-obligatory” does not lower the moral ideal; on the contrary it raises it, or at any rate makes it more possible to vindicate the moral law and to administer it justly. It is nowadays a recognised principle in legislation that a law loses part of its weight if it cannot be strictly enforced. If the realisation of the highest moral ideal is commanded by a moral law, such a law will always remain a dead letter, and morality will gain nothing. Far above the anxiouseffort to fulfil the commandments of duty stands the free and lofty aspiration to live up to an ideal, which, unattainable as it may be, threatens neither with blame nor remorse him who fails to reach its summits. Does not experience show that those whose thoughts are constantly occupied with the prescriptions of duty are apt to become hard and intolerant?

39Ibid.p. 219.

Those who deny the existence of anything morally “praiseworthy” which is not a duty, are also generally liable to deny the existence of anything morallyindifferentin the conduct of responsible beings. The “super-obligatory” and the “indifferent” have this in common, that they are “ultra-obligatory,” and the denial of the one as well as of the other is an expression of the same tendency to look upon the moral law as the sole fact of the moral consciousness. Even Utilitarianism cannot consistently admit of anything indifferent within the province of moral valuation, since two opposite modes of conduct can hardly produce absolutely the same sum of happiness. Such a repudiation of the “indifferent” being quite contrary to the morality of common sense, which, after all, no ethical theory can afford to neglect, considerable ingenuity has been wasted on vain attempts to show that the “indifferent” is nothing but a rude popular conception unable to keep its ground against a thoroughgoing examination. Professor Ziegler ironically asks:—“Such outward matters as eating and drinking are surely morally indifferent? And yet is eating and drinking too much, is spending too much time in outdoor exercise, is lounging idly about, morally indifferent? or, on the other hand, is it morally allowable or wholesome to reduce oneself and make oneself weak and ill by fasting, or to become a hypochondriac by continually staying indoors?”40This argument, however, involves a confusion of different volitions. The fact that eating or drinking generally, or eating or drinking too much or too little, are no matters of indifference, surely does not preventeating or drinking on some certain occasion from being indifferent. Mr. Bradley again observes:—“It is right and a duty that the sphere of indifferent detail should exist. It is a duty that I should develop my nature by private choice therein. Therefore,becausethat is a duty, it is a dutynotto make a duty of every detail; and thus in every detail I have done my duty.”41This statement also shows a curious confusion of entirely different facts. It may be very true that it is a duty to recognise certain actions as indifferent. This is one thing by itself. But it is quite another thing to perform those actions. And if it is a duty to recognise certain actions as indifferent how could it possibly at the same time be held a duty to perform them?

40Ziegler,op. cit.p. 85.

41Bradley,Ethical Studies, p. 195, n. 1.

It has been maintained that the sphere of the indifferent forms the totality of “ought”; that when the same end may be reached by a variety of means, an action may be indifferent merely in relation to the choice of means, but not so far as regards the attainment of the end, and hence is only apparently indifferent.42“If it is my moral duty to go from one town to another,” says Mr. Bradley, “and there are two roads which are equally good, it is indifferent to the proposed moral dutywhichroad I take; it is not indifferentthatI do take one or the other; and whichever road I do take, I am doing my duty on it, and hence it is far from indifferent: my walking on road A is a matter of duty in reference to the end, though not a matter of duty if you consider it against walking on road B; and so with B—but I can escape the sphere of duty neither on A nor on B.” All this is true, but forms no argument against the “indifferent.” The statement, “You ought to go to the town and to take either road A or B,” refers to two volitions which are regarded as wrong, namely, the volition not to go to the town at all, and the volition to take any road not A or B; and itrefers also to two pairs of volitions in reference to which it indicates that the choice between the volitions constituting each pair is indifferent. You may choose to take road A or not to take it; you may choose to take road B or not to take it. The “indifferent” is always an alternative between contradictories. It can therefore never form part of an “ought”-totality, being itself a totality as complete as possible. This is somewhat disguised by a judgment which makes an obligation of a choice between A and B, but becomes conspicuous if we consider a simple case of indifference. Suppose that it is considered indifferent whether you speak or do not speak on a certain occasion. What is here the “ought” that forms the totality of the indifferent? Would there be any sense in saying that you ought either to speak or not to speak? or is the alternative, speaking—not speaking, only a link in an indefinite chain of alternatives, each of which is by itself indifferent, in a relative sense, but the sum of which forms the “ought”? You may be permitted—it will perhaps be argued—in a given moment to speak or to abstain from speaking, to write or to abstain from writing, to read or to abstain from reading, and so on; but however wide the province of the permissible may be, there must always be a limit inside which you ought to remain. That you do this or that may be a matter of indifference, but only of relative indifference, for it is not indifferent what you do on the whole; hence there is nothing absolutely indifferent. Such an argument, however, involves a misapprehension of the true meaning of the “indifferent.” The predicate expressing indifference refers to certain definite volitions and their contradictories, not to the whole of a man’s conduct in a certain moment. The whole of a man’s conduct is never indifferent. But neither is the whole of a man’s conduct ever wrong. In the moment when a murderer kills his victim he is fulfilling an endless number of duties: he abstains from stealing, lying, committing adultery, suicide, and so on. The predicate “wrong” only marks the moralcharacter of a special mode of conduct. Why should not the indifferent be allowed to do the same?

42Simmel,op. cit.i. 35sqq.Alexander,op. cit.p. 50sqq.Murray,op. cit.p. 26sq.Bradley,op. cit.p. 195sq.

It has, finally, been observed that the so-called “indifferent” is something “the morality of which can only be individually determined.”43This remark calls attention to the fact that no mode of conduct can be regarded as indifferent without a careful consideration of individual circumstances, and that much which is apparently indifferent is not really so. This, however, does not involve an abolition of the indifferent. Such an abolition would be the extreme of moral intolerance. He who tried to put it into practice would be the most insupportable of beings, and to himself life would be unbearable. Fortunately, such a man has never existed. The attempts to make every action, even the most trivial, of responsible beings a matter of moral concern, are only theoretical fancies without practical bearing, a hollow and flattering tribute to the idol of Duty.

43Martensen,Christian Ethics, p. 415.

MORALideas are expressed in moral judgments. We have hitherto examined the predicates of such judgments, the import and origin of the moral concepts. Now a much wider field or research remains for us to traverse. We shall direct our attention to the subjects of moral judgments, to the mass of phenomena which, among different peoples and in different ages, have had a tendency to call forth moral blame and moral praise. We shall discuss the general characteristics which all these phenomena have in common. We shall classify the most important of them, and study the moral ideas held with reference to the phenomena of each class separately. And in both cases we shall not only analyse, but try to find an answer to the question, Why?—the ultimate aim of all scientific research. But before entering upon this vast undertaking, we must define the lines on which it is to be conducted. How can we get an insight into the moral ideas of mankind at large?

In answering this question I need not dwell upon such obvious means of information as direct experience, or records of moral maxims and sentiments found in proverbs, literary and philosophical works, and religious codes. The sources which, from an evolutionary point of view, are of the most comprehensive importance for our study, are tribal and national customs and laws. It is to these sources that the present chapter will be devoted.

We have seen that a custom, in the strict sense of the word, is not merely the habit of a certain circle of men, but at the same time involves a moral rule. There is a close connection between these two characteristics of custom: its habitualness and its obligatoriness. Whatever be the foundation for a certain practice, and however trivial it may be, the unreflecting mind has a tendency to disapprove of any deviation from it for the simple reason that such a deviation is unusual. As Abraham Tucker observes, “it is a constant argument among the common people, that a thing must be done, and ought to be done, because it always has been done.”1Children show respect for the customary,2and so do savages. “If you ask a Kaffir why he does so and so, he will answer—‘How can I tell? It has always been done by our forefathers.’”3The only reason which the Eskimo can give for some of their present customs, to which they adhere from fear of ill report among their people, is that “the old Innuits did so, and therefore they must.”4In the behaviour of the Aleut, who “is bashful if caught doing anything unusual among his people,”5and in the average European’s dread of appearing singular, we recognise the influence of the same force of habit.

1Tucker,Light of Nature, ii. 593.Cf.also Simmel,Einleitung in die Moralwissenschaft, i. 65sqq.

2Sully,Studies of Childhood, p. 280sq.

3Leslie,Among the Zulus and Amatongas, p. 146.

4Hall,Arctic Researches, p. 569.

5Dall,Alaska, p. 396.

On the other hand, it should be remembered that not every public habit is a custom, involving an obligation; certain practices, though very general in a society, may even be reprobated by almost every one of its members. The habits of a people must therefore be handled with discretion by the student of moral ideas. Yet when he has no reason to conclude as to some special habit that it is held obligatory, he may, probably always, be sure that it is either allowed, or, in spite of all assurances of its wickedness, that the disapproval of it is not generally very deep or genuine. In a community where lying is aprevailing vice, truthfulness cannot be regarded as a very sacred duty; and where sexual immorality is widely spread, the public condemnation of it always smacks of hypocrisy. Men’s standard of morality is not independent of their practice. The conscience of a community follows the same rule as the conscience of an individual. “Commit a sin twice,” says the Talmud, “and you will think it perfectly allowable.”6Hence for the study of the inmost convictions of a nation, its “bad habits” form a valuable complement to its professed opinions.

6Deutsch,Literary Remains, p. 58.

The dictates of custom being dictates of morality, it is obvious that the study of moral ideas will, to a large extent, be a study of customs. But at the same time it should be borne in mind that custom never covers the whole field of morality, and that the uncovered space grows larger in proportion as the moral consciousness develops. Being a rule of duty, custom may only indirectly be an expression of moral approval, by claiming, in certain cases, that goodness should be rewarded. But even when demanding praise, custom is not always a reliable exponent of merit; it includes politeness, and politeness is a great deceiver. Custom may compel us to praise a man for form’s sake, when he deserves no praise, and to thank him when he deserves no thanks. Moreover, custom regulates external conduct only. It tolerates all kinds of volitions and opinions if not openly expressed. It does not condemn the heretical mind, but the heretical act. It demands that under certain circumstances certain actions shall be either performed or omitted, and, provided that this demand is fulfilled, it takes no notice of the motive of the agent or omitter. Again, in case the course of conduct prescribed by custom is not observed, the mental facts connected with the transgression, if regarded at all, are dealt with in a rough and ready manner, according to general rules which hardly admit of individualisation. Yet the incongruity between custom and morality which ensues from these circumstances is onthe whole more apparent than real. It is rather an incongruity between different moral standards. The unreflecting moral consciousness, like custom, cares comparatively little for the internal aspect of conduct. It does not ask whether a man goes to church on Sunday from a religious motive or from fear of public opinion; it does not ask whether he stays at home from love of ease or from dissent of belief and avoidance of hypocrisy. It is ready to blame as soon as the dictate of custom is disobeyed. The rule of custom is the rule of duty at early stages of development. Only progress in culture lessens its sway.

Finally, the moral ideas which are expressed in the customs of a certain circle of men are not necessarily shared by every one of its members. This may, in the present connection, be considered a matter of slight importance by him who regards morality as “objectively” realised in the customs of a people, and who denies the individual the right to a private conscience. But from the subjective point of view which I am vindicating, individual conviction has a claim to equal consideration with public opinion, nay frequently, to higher respect, representing as it does in many cases a higher morality, a moral standard more purified by reflection and impartiality. At the lower stages of civilisation, however, where a man is led by his feelings more than by his thoughts, such a differentiation of moral ideas hardly occurs. The opinions of the many are the opinions of all, and the customs of a society are recognised as rules of duty by all its members.

In primitive society custom stands for law, and even where social organisation has made some progress it may still remain the sole rule for conduct.7The authority ofa chief does not necessarily involve a power to make laws. Even kings who are described as autocrats may be as much tied by custom as is any of their subjects.

7Cranz,History of Greenland, i. 170. Dall,op. cit.p. 381 (Tuski). Dobrizhoffer,Account of the Abipones, p. 95. Shooter,Kafirs of Natal and the Zulu Country, p. 101sq.Holden,Past and Future of the Kaffir Races, p. 336. Mungo Park,Travels in the Interior of Africa, p. 16. Scaramucci and Giglioli, ‘Notizie sui Danakil,’ inArchivio per l’antropologia e la etnologia, xiv. 39. Earl,Papuans, p. 105 (Arru Islanders). Forbes,A Naturalist’s Wanderings in the Eastern Archipelago, p. 473 (Timorese). Dalton,Ethnology of Bengal, p. 51 (Manipuris). Rockhill,Land of the Lamas, p. 220 (Eastern Tibetans).

The Rejangs of Sumatra “do not acknowledge a right in the chiefs to constitute what laws they think proper, or to repeal or alter their ancient usages, of which they are extremely tenacious and jealous.” There is no word in their language which signifies law, and the chiefs, in pronouncing their decisions are not heard to say, “So the law directs,” but, “Such is the custom.”8According to Ellis, “the veneration of the Malagasy for the customs derived from tradition, or any accounts of their ancestors … influences both their public and private habits; and upon no individual is it more imperative than upon their monarch, who, absolute as he is in other respects, wants either the will or the power to break through the long-established regulations of a superstitious people.”9The king of Ashanti, although represented as a despotic monarch, is nevertheless under an obligation to observe the national customs which have been handed down to the people from remote antiquity, and a practical disregard of this obligation, in the attempt to change some of the old customs, cost one of the kings his throne.10“The Africans,” says Mr. Winwood Reade, with special reference to Dahomey, “have sometimes their enlightened kings, as the old barbarians had their sages and their priests. But it is seldom in the power of the heads of a people to alter those customs which have been held sacred from time immemorial.”11The Basutos, among whom “the chiefs have the right of making laws and publishing regulations required by the necessities of the times,” regard such laws, ormolaos, as inferior to themekhoas, “the use and wont,” which constitute the real laws of the country.12Among the ancient Irish, there was no sovereign authority competent to enact a new law, the function of the king being merely, as chief of the tribal assembly, to see that the proper customs were observed.13

8Marsden,History of Sumatra, p. 217.

9Ellis,History of Madagascar, i. 359.

10Beecham,Ashantee and the Gold Coast, p. 90sq.Cf.Stuhlmann,Mit Emin Pascha ins Herz von Afrika, p. 523 (A-lūr).

11Reade,Savage Africa, p. 52sq.

12Casalis,Basutos, p. 228.

13Ancient Laws of Ireland, iii. p. lxxxvi.sq.Cherry,Growth of Criminal Law, p. 33.

In competition with law, custom frequently carries the day. In India, especially in the South, “custom has always been to a great extent superior to the written law.”14In the Ramnad case, the Judicial Committee expressly declared that, “under the Hindu system of law, clear proof of usage will outweigh the written text of the law.”15It was also a maxim of the Roman jurists that laws may be abrogated by desuetude or contrary usage;16and in modern times the same doctrine is acted upon in Scotland.17Moreover, when a custom cannot abrogate the law, it may still have a paralysing influence on its execution. According to the laws of European nations, a man who has killed another in a duel is to be treated as a homicide; yet wherever the duel exists as a custom, the law against it is ineffective. So it is on the Continent, and so it was in England in the eighteenth century, when a well-informed writer could affirm that he had “not found any case of an actual execution in England in consequence of a duel fairly fought.”18In this instance the ineffectiveness of the law is owing to the fact that the law has not been able to abolish an old custom. But the superiority of custom also shows itself in cases where the law itself is getting antiquated, and a new custom, enforced by public opinion, springs up in opposition to it. Thus, contrary to law and earlier usage, it is nowadays the custom of certain European countries that a sentence of death is not carried into execution. Even “bad habits” tend to weaken the authority of the law. Probably the two most prominent civil vices of the Chinese are bribery and gambling. Against both these vices their penal code speaks with no uncertain sound; and yet, according toProfessor Douglas, it is no exaggeration to say that if the law were enforced, it would make a clean sweep of ninety-nine of every hundred officials in the empire.19Other illustrations of the same principle may be found much nearer home.

14Burnell, quoted by Nelson,View of the Hindū Law, p. 136.

15Mayne,Treatise on Hindu Law and Usage, p. 41.

16Institutiones, i. 2. 11.Digesta, i. 3. 32.

17Mackenzie,Studies in Roman Law, p. 54.

18Quoted by Bosquett,Treatise on Duelling, p. 80.Cf.A Short Treatise upon the Propriety and Necessity of Duelling, printed at Bath in 1779. In 1808, however, Major Campbell was sentenced to death and executed for killing Captain Boyd in a duel (Storr, ‘Duel,’ inEncyclopædia Britannica, vii. 514).

19Douglas,Society in China, p. 82.

Custom has proved stronger than law and religion combined. Sir Richard Burton writes of the Bedouins, “Though the revealed law of the Koran, being insufficient for the Desert, is openly disregarded, the immemorial customs of theKazi al-Arab(the Judge of the Arabs) form a system stringent in the extreme.”20So, also, the Turkomans are ruled, often tyrannised over, by a mighty sovereign, invisible indeed to themselves, but whose presence is plainly discerned in the worddeb—“custom,” “usage.” Our authority adds:—“It is very remarkable how little the ‘Deb’ has suffered in its struggle of eight centuries with Mahommedanism. Many usages, which are prohibited to the Islamite, and which the Mollahs make the object of violent attack, exist in all their ancient originality.”21

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