various stages of landholding which arise out of military conquest. The
absolute ownership of all the land by a barbaric chief or king, which
may be seen in such a country as Dahome, whose subjects hold their lands
on royal sufferance, is an extreme case. In the East, feudal tenures of
land granted for military service still have much the same results as in
mediæval Europe.
At low levels of civilisation the first dawning of criminal law may be
seen in the rule of vengeance or retaliation. The person aggrieved, or
his kinsfolk if he has been killed, are at once judges and executioners,
and the vengeance they inflict stands in some reasonable relation to
the offence committed. Not only is such vengeance the great means of
keeping order among such rude tribes as the Australians, but even among
half-civilised nations like Abyssinians and Afghans the primitive law may
still be studied in force, carried out in strict legal order as a _lex
talionis_, not degraded to mere illegal survival in outlying districts
like the “vendetta” of modern Europe, carried on even now, in spite of
criminal jurisprudence, which for ages has striven to transfer punishment
from private hands to the State. Whether among savages, barbarians, or
the lower civilised nations, the traveller will find everywhere matter
of interesting observation in the law and its administration. The law
may be still in the state of unwritten custom, and the senate or council
of old men may be the judges, or the power at once of lawgiver and judge
may have passed into the hands of the chief, who, as among the modern
Kaffirs, may make a handsome revenue by the cattle given him as fees
by both sides, a fact interesting as illustrating the times when an
European judge took gifts as a matter of course. Among the nations at
higher levels of culture in the East, for instance, most of the stages
may still be seen through which the administration of law, criminal and
civil, was given over to a trained legal class. One important stage in
history is marked by religion taking to itself legal control over the
conduct of a nation. The working of this is seen among Oriental nations,
whether Mohammedan, Brahman, or Buddhist, whose codes of law are of an
ecclesiastical type, and the lawyers theologians. There is much to
be learnt from the manner in which such law is administered, and the
devices are interesting by which codes framed under past conditions of
society are practically accommodated to a new order of things, without
professedly violating laws held to be sacred, and therefore unchangeable.
Ordeals, which have now disappeared from legal procedure among European
nations, are often to be met with elsewhere. Thus in Arabia the ordeal by
touching or licking hot iron is still known (the latter is an easy and
harmless trick, if the iron is quite white-hot). In Burma, under native
rule, the ancient trial of witches by “swimming” went on till lately. In
Public-domain text, read in full here on John Shaqi.
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