Legal Procedure. (a) Public Versus Private Justice.— From the standpoint of the modern lawyer, the strangest feature of the social conventions of the primitive world is their habit of allow ing private parties to fight out their quarrels according to certain set rules, which to a corresponding extent control what would otherwise amount to downright war. Such private justice, as it is termed, has a validity somewhat analogous to that of international law in Europe, seeing that no machinery exists for its enforcement, though even the strongest cannot afford in the long run to disregard the accepted decencies of the common life. For private justice is justice of a kind, seeing that social expediency and moral reason alike must approve the substitution of retaliation for unlimited self redress. "Tit for tat" at least implies that it is unfair to exact more than the equivalent of the wrong done—a principle roughly con strued by primitive society to mean that the vendetta should end when, a life having been taken for a life, equilibrium as regards numbers and consequent strength is restored between the groups at variance.
Such a view, however, deals with responsibility as wholly collective, and, even at the primitive level of thought, this is apt to seem hardly fair. Hence some attempt is made to bring home his culpability to the actual offender, as typically in the regulated com bat. Yet the duel can hardly be regarded as a satisfactory method of justice, offering, as it does, to the stalwart villain, the oppor tunity of adding a second crime to the first ; were it not that the issue of the fight, as in the mediaeval "judgment of God," might be taken as the verdict of a higher court, a mystic pronouncement in favour of the innocent. Even so, in Australia it was deemed more seemly that the defendant should play a passive part and merely ward off the blows directed against him by his victim's kinsmen. Should he escape, as he often managed to do, the self-exposure was accounted as expiation ; no doubt in large part because a symbolic amounts to a real retribution at the mental stage at which pur posive energy is chiefly occupied with the discharge of repressed emotion. It remains to add that as soon as property has sufficiently developed, to suffer in one's goods instead of in one's person be comes a recognized means of compensating for injury inflicted; and, though an aggressor caught red-handed is ever likely to have short shrift, it becomes the normal procedure under a clan-system of the more advanced type to admit the principle of composition. Even if negotiations about blood-fines lead to endless wrangling, this is at least more conducive to public order than mutual way laying. That settlement is rendered easier by the aid of some im partial arbitrator comes to be apparent even at this stage, just as turbulent Corsica had recourse to paci or pacifiers. A class-system, however, greatly assists the substitution of public for private jus tice, since the lower orders at least, and gradually the members of the aristocracy, are obliged to observe "the king's peace," and to submit all causes of dispute to the decision of him and his repre sentatives, with the burden of providing court fees as a salutary check to litigiousness. In proportion as the supreme ruler is power ful he will not merely arbitrate, that is, deliver a sentence which may or may not be carried out, but will see that his judgment is duly executed by the agency of those accustomed to obey him.
tive jurisprudence that corresponds at all to the modern insistence on relevancy, on the competence of witnesses, on the disregard of hearsay statement, and so forth. Indeed, at the level of rudi mentary law the distinction between trial and punishment is im perfectly drawn. A judicial process is normally conceived as a mode of bringing a conditional curse into operation, so that a roan is automatically declared guilty by the very fact that he suffers. As was already noted in the case of the duel, to win is to be in nocent, to lose is to be convicted of wrong-doing on a supernatural showing. So too, then, the ordeal involves the principle that con tact with something spiritually potent, such as fire, water, or a brew of magic herbs, will reveal alike the pure nature that is akin to it and the impure nature that it rejects. The sinner, in other words, is held to lack the mana, the strong heart, whereby he could stand up to the test ; and, if for mana the word "confidence" be substituted, it will be seen that there is some psychological justifi cation for such a method of criminal investigation. Sometimes both plaintiff and defendant are subjected to the ordeal, but more commonly the latter only. In the second case, primitive justice, acting on a presumption of guilt, is apt to make the chances of escape nearly impossible; a European parallel is the notorious ducking of the witch. It is only fair to add that the tortures which likewise disgraced these witch-trials, and indeed were a usual feature of mediaeval procedure, are almost unknown among so called savages. As for the oath, which to-day retains its use as a legal precaution against false witness, the principle involved is sim ilar ; the only difference being that an oral replaces a material symbol as the vehicle of the conditional curse. When the Chi nese in a London court is made to blow out a candle, or break a plate, he is supposed to be calling down upon himself a like fate such as must inevitably overtake him if he is lying. Given sufficient faith in the mystic power of the act, or at any rate in the power of agencies set in motion by the act, it is psychologically possible that a guilty conscience will have the result contemplated. Many instances of what Dr. Roth has termed thanatomania may be cited from the primitive world, a conviction of being doomed whether by an enemy or by one's own fault being enough to de press the will to live to the point of actual extinction. An inter esting form of the oath is that in which the king's mana—or as the Romans phrased it his majestas—is invoked, as when the Zulu swore by the name of his dread king, Chaka. Here the sacred and the secular sides of the royal authority combine so as to re-inforce each other. Since to break the king's law and to disturb his peace is likewise to diminish the mystic power whereby he maintains the luck of the whole community, no penalty can be too severe for a disloyalty thus amounting to sacrilege. Indeed, the notice able increase in the harshness of the discipline that marks the appearance of monarchical rule is to be ascribed not only to better organization, but at least as much to the fact that a human and a divine authority, like the two swords of the Holy Roman empire, are wielded by the same hands. As regards primitive legal pro cedure in general, it only remains to add that it is characterized by an extreme formalism, due largely to close association with magico religious beliefs.