Chapter III · (continued 2)

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 the original city. 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 may be referred to as the secondary foundation 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.

8. THE BEGINNINGS OF THE LEGAL SYSTEM.

The social regulations which we have thus far considered find their consummation in the legal 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 most part 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 of two factors, 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 to States; the other is the religious sanction 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 religious commands. 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 independently achieved 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 an arbitrator; 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 the appointed judge, who owes his office to political authority, and who decides particular controversies, not because he has been asked to do so by the 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 an official. 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 the priest, 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 a religious 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 are usually 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 Latin stipulatio, 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 bit of 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 the compurgator, 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 as witnesses 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, the ordeal. 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 their controversies 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 a magic 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 himself from 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 of punishment. This process is characteristic of the development of penal law in general.

9. THE DEVELOPMENT OF PENAL LAW.

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 of blood-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 thus maintained 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 State compels the 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 protection of 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 the sanctuary came 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 the chief 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 of imprisonment. 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 holding of 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 inquisitional procedure; 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!

The same is true of a further change inaugurated by the passing of blood-revenge into punishment. This change likewise led to a decided restriction of the death penalty, yet it also, no less than the forcing of confession, brought upon penal justice the stigma of systematic cruelty. The assumption of penal power on the part of the public judiciary, in conjunction with the possession of unlimited control over the person and life of the malefactor, led to the adoption of a principle which long continued to dominate penal justice. This principle was drastically expressed in the Priests' Code of the Israelites, "Eye for eye, tooth for tooth." True, this jus talionis was already foreshadowed in the custom of blood-revenge, and yet the simple form which it here possessed, 'a life for a life,' made it a principle of just retribution, and not a demand sharpened by hate and cruelty. In the case of blood-revenge, moreover, the emotions of revenge were moderated by virtue of the fact that considerations of property played a rôle. Requital was sought for the loss which the clan sustained through the death of one of its members. Hence the clan might be satisfied with a money compensation, or, occasionally, with the adoption either of a fellow-tribesman of the murderer or, indeed, even of the murderer himself. In contrast with this, even the most severe physical injuries, so long as they did not result in death, were originally always left to the retaliation of the individual. This retaliation was sought either in direct combat, or, in the heroic age proper, in a duel conducted in accordance with regulations of custom. All this is changed as soon as the State abolishes blood-revenge and assumes jurisdiction over cases of murder. In the event of personal injuries, the judge determines the sentence, particularly if the individual is unable for any reason to secure retaliation—having been rendered helpless, for example, through his injury, or being prevented by the fact of class differences. Under such circumstances it is but natural that the principle, 'a life for a life,' which has been borrowed from the institution of blood-revenge and has been applied to the punishment for murder, should be developed into a scale of physical punishment representing the more general principle 'like for like.' He who has destroyed the eye of another, must lose his own eye; whoever has disabled another's arm, must have his arm cut off, etc. Other injuries then came to be similarly punished, even those of a moral character to which the principle "eye for eye, tooth for tooth" is not directly applicable. The hand which has been implicated in an act of sacrilege, such as the commission of perjury, is to be cut off; the tongue which has slandered, must be torn out. Originally, the death penalty was employed all too freely. Hence this substitution of a physical punishment which spared the life of the offender was doubtless in the direction of moderation. But, since this substitution gave rise to cruelties that resulted in the infliction of various sorts of death penalties, preceded and accompanied by tortures, its original effect became reversed, just as in the case of imprisonment. Moreover, the two forms of punishment—imprisonment and death—and the degree to which these were carried to excess differed according to civilization and race. The jus talionis was the older principle of punishment. It is more closely bound up with man's natural impulse for retaliation, and therefore recurs even within humane civilizations, sometimes merely in suggestions but sometimes in occasional relapses which are of a more serious sort and are due to the passion for revenge. In fundamental contrast with the Mosaic law, Christianity repudiated the requital of like with like. Perhaps it was the fear of violating its own principle that led it, in its later development, to seek in the cruelties of severe prison penalties a substitute for the repressed impulse to revenge which comes to expression in coarser conceptions of justice. Nevertheless, this substitution was superior to the inflexible severity of the jus talionis in that it more effectively enabled milder customs to influence the judicial conscience.

But there is still another respect in which the recedence of the principle of retaliation gradually led to an advance beyond the legal conceptions characteristic of the heroic age. The command for strict retribution takes into consideration merely the objective injury in which a deed results; to it, it is immaterial whether a person destroys another's eye accidentally or intentionally. The same injury that he has caused must befall him. Whoever kills a man must, according to the law of Hammurabi, himself suffer death; if he kills a woman, he is to be punished by the death of his daughter. If a house collapses, the builder who constructed it must suffer death. For a successful operation, the physician receives a compensation; if the operation fails, the hand that has performed it is cut off. The same law determines both reward and punishment. Moreover, it includes within its scope even intellectual and moral transgressions. The judge who commits an error is to be dismissed from office in disgrace; the owner who neglects his field is to be deprived of it.

10. THE DIFFERENTIATION OF LEGAL FUNCTIONS.

The direct impetus to overcoming the defects that were inherent in penal justice as a result of its having originated in the conflicts of individuals, did not come from a clear recognition of differences in the character of the crimes themselves, but primarily from the fact of a gradual division of judicial functions. This is shown particularly by the development of Græco-Roman as well as of Germanic law. It is in the criminal court, which supersedes blood-revenge, that public authority is most directly conscious of its power over the individual. Hence the criminal court appears to be the highest of the courts, and the one that most deeply affects the natural rights of man. Its authority is vested solely in the ruler, or in a particularly sacred tribunal. This is due, not so much to the specific character of the crimes over which it has jurisdiction, as to the respect which it receives because it assumes both the ancient duty of blood-revenge and the function of exacting a requital for religious guilt. Similarly, other offences also gradually pass from the sphere of personally executed revenge or from that of the strife of individuals, and become subject to the penal authority of the State. The division of judicial authority, to which these tendencies lead, is promoted by the differentiation of public power, as a result of which the administration of justice is apportioned to various officials and magistrates, as well as are the other tasks of the State. It is for this reason that, if we consider their civilization as a whole, the constitutional States of the Occidental world were led to differentiate judicial functions much earlier than were the great despotic monarchies of the Orient. These monarchies, as the code of Hammurabi shows, possessed a highly developed husbandry and a correspondingly advanced commercial and monetary system, whereas they centralized all judicial functions in the ruler.

Thus, the State gains a twofold power, manifested, in the first place, in the very establishment of a judicial order, and, secondly, in the differentiation of the spheres of justice in which the authority of the State over the individual is exercised. This finally prepares the way for the last stage of development. The state itself becomes subject to an established legal order which determines its various functions and the duties of its members. There thus originates an officialdom, organized on fixed principles and possessing carefully defined public privileges. The people of the State, on the other hand, are divided into definite classes on the basis of the duties demanded of them as well as of the rights connected with these duties. These articulations of political society, which determine the organization of the army, the mode of taxation, and the right of participation in the government of the State, develop, as we have already seen, out of totemic tribal organization, as a result of the external conditions attendant upon the migrations and wars connected with the rise of States. But they also exhibit throughout the traces of statutes expressing the will and recording the decisions of individual rulers, though even here, of course, universal human motives are decisive. After the political powers of the State have been divided and have been delegated to particular officials and official colleges, and after political rights have been apportioned to the various classes of society, the next step consists in rendering the organization of the State secure by means of a Constitution regulating the entire political system. In the shaping of the Constitution, it cannot be denied that individual legislators or legislative assemblies played a significant rôle. Nevertheless, it must be remembered that it is solely as respects the form of State organization that the final and most comprehensive legal creation appears to be predominantly the result of the will acts of individuals. The content of the Constitution is in every respect a product of history; it is determined by conditions which, in the last analysis, depend upon the general culture of a nation and upon its relations with other peoples. These conditions, however, are so complex that, though every form of Constitution and all its modifications may be regarded as absolutely involved in the causal nexus of historical life, the endless diversity of particular conditions precludes Constitutions from being classifiable according to any universal principle. Constitutions can at most be classified on the basis of certain analogies. The most influential attempt at a genetic classification of the various historical forms of government was that of Aristotle. But his classification, based on the number of rulers (one, a few, many, all) and on the moral predicates of good and evil (monarchy and tyranny, aristocracy and oligarchy, etc.), offers a purely logical schema which corresponds but partially with facts. True, it not infrequently happens that the rule of all—that is, democracy—gives way to the evil form of individual rulership—namely, tyranny. An aristocracy, however, or even a monarchy, may likewise develop into a tyranny. What the change is to be, depends upon historical conditions. Nor are monarchy, aristocracy, or the rule of the middle class forms of government that are ever actually to be found in the purity which logical schematization demands. Even in the Homeric State there was a council of elders and an assembly of freemen—an agora—in addition to the king. Indeed, if we go back still farther and inquire concerning those more primitive peoples of nature who are merely on the point of passing from tribal organization to a political Constitution, it might perhaps be nearer the truth to assert that democracy, and not monarchy, was the form of the early State. The fact is that the organization characteristic of the State as a whole is the product of historical factors of an exceedingly variable nature, and that it never adequately fits into any logical system that is based on merely a few political features. Even less may a logical schema of this sort be regarded as representing a universal law of development.

Thus, the State is indeed the ultimate source of all the various branches of the legal system. So far as the fundamental elements of its own Constitution are concerned, however, it is really itself a product of custom, if we take this term in its broadest sense, as signifying an historically developed order of social life which has not yet come under the control of political authority. The course of development is the very opposite of that which rationalistic theories have taught, ever since the time of the Sophists, concerning the origin of the State. These theories maintain that the legal system originated in connection with the State, and that it then acquired an application to the separate departments of life. The reverse is true. It is with the determination of the rights of individuals and with the settlement of the controversies arising from these rights that the legal power of the State takes its rise. It is strengthened and extended when the custom of personal retribution comes to be superseded by penal law. Last of all comes the systematic formulation of the political Constitution itself. The latter, however, is never more than a development; it is not a creation in the proper sense of the word. Even such States as the United States of North America and the new German Empire were not created by lawgivers, but were only organized by them in respect to details. The State as such is always a product of history, and so it must ever remain. Every legal system presupposes the power of a State. Hence the latter can never itself originate in an act of legislation, but can only transform itself into a legal order after it has once arisen.

11. THE ORIGIN OF GODS.

At first glance it may seem presumptuous even to raise the question as to how gods originated. Have they not always existed? one is inclined to ask. As a matter of fact, this is the opinion of most historians, particularly of historians of religion. They hold that the belief in gods is underived. Degenerate forms may arise, the belief may at times even disappear altogether or be displaced by a crude belief in magic and demons, but it itself can in no wise have been developed from anything else, for it was possessed by mankind from the very beginning. Were it true that the belief in gods represents an original possession of mankind, our question concerning the origin of gods would be invalidated. The assumption, however, is disproved by the facts of ethnology. There are peoples without gods. True, there are no peoples without some sort of supersensuous beings. Nevertheless, to call all such beings 'gods'—beings, for example, such as sickness-demons or the demons which leave the corpse and threaten the living—would appear to be a wholly unwarranted extension of the conception of deity. Unbiased observation goes to show that there are no peoples without certain conceptions that may be regarded as precursors of the later god-ideas. Nevertheless, there can be no doubt that there are some peoples without gods. The Veddahs of Ceylon, the so-called nature-Semangs and Senoi of Malacca, the natives of Australia, and many other peoples of nature as well, possess no gods, in our sense of the word. Because all of these primitive peoples interpret certain natural phenomena—such as clouds, winds, and stars—in an anthropomorphic fashion, it has been attempted time and again to establish the presence of the god-idea of higher religions. Such attempts, however, may be straightway characterized as a play with superficial analogies in which no thought whatsoever is taken of the real content of the god-conception.

Accepting the lead of ethnological facts, then, let us grant that there are stages in the development of the myth in which real gods are lacking. Even so, two opposing views are possible concerning the relation of such 'prereligious' conditions to the origin of the god-ideas essential to religion. Indeed, these views still actively compete with each other in the science of religion. On the one hand, it is maintained that the god-idea is original, and that belief in demons, totemism, fetishism, and ancestor worship are secondary and degenerate derivatives. On the other hand, the gods are regarded as products of a mythological development, and, in so far, as analogous to the State, which grew up in the course of political development out of the primitive forms of tribal organization. Those who defend the first of these views subscribe to a degeneration theory. If the ancestors reverenced in cult are degenerated deities, and if the same is true of demons and even of fetishes, then the main course of religious development has obviously been downward and not upward. The representatives of the second view, on the contrary, assume an upward or progressive tendency. If demons, fetishes, and the animal or human ancestors worshipped in cult antedate gods, the latter must have developed from the former. Thus, the views concerning the origin of gods may be classified as theories of degeneration and theories of development.

But the theories of degeneration themselves fall into two classes. The one upholds an original monotheism, the basis of which is claimed to be either an innate idea of God or a revelation made to all mankind. Obviously this assumption is itself more nearly a belief than a scientific hypothesis. As a belief, it may be accounted for in terms of a certain religious need. This explains how it happens that, in spite of the multiplication of contradictory facts, the theory has been repeatedly urged in comparatively recent times. Only a short time ago, even a distinguished ethnologist, Wilhelm Schmidt, attempted to prove that such an original monotheism was without doubt a dominant belief among the so-called Pygmies, who must, in general, be classed with primitive peoples. The argument adduced in support of this view, however, unquestionably lacks the critical caution otherwise characteristic of this investigator. One cannot escape the conviction that, in this case, personal religious needs influenced the ethnological views, even though one may well doubt whether the degeneration theory is a theory that is suited to satisfy such needs.[1] The second class of theories adopts the view that the basis of all religious development was not monotheism but primitive polytheism. This polytheism is supposed to have originated, at a very early age, in the impression made by the starry heavens, particularly by the great heavenly bodies, the sun and the moon. Here for the first time, it is maintained, man was confronted by a world far transcending his own realm of sense perception; because of the multiplicity of the motives that were operative, it was not the idea of one deity but the belief in many deities that was evoked. In essential contrast with the preceding view, this class of theories regards all further development as upward. Monotheism is held to be a refined religious product of earlier polytheistic conceptions. In so far, the hypothesis represents a transition to developmental theories proper. It cannot be counted among the latter, however, for it holds to the originality of the god-idea, believing that this conception, which is essential to all religion, was not itself the product of development, but formed an original element of man's natural endowment. Moreover, the theory attaches a disproportionate significance to the transition from many gods to a single god. It is doubtful, to say the least, whether the intrinsic value of the god-idea may be measured merely in terms of this numerical standard. Furthermore, the fact is undeniable that philosophy alone really exhibits an absolute monotheism. A pure monotheistic belief probably never existed in the religion of any people, not even in that of the Israelites, whose national deity, Jahve, was not at all the sole god in the sense of a strict monotheism. When the Decalogue says, "Thou shalt have no other gods before me," this does not deny the existence of gods other than Jahve, but merely prohibits the Israelites from worshipping any other deity. These other gods, however, are the national gods of other peoples. Not only do these other tribal gods exist alongside of Jahve, but the patriarchal sagas centre about individuals that resemble now demonic and now divine beings. The most remarkable of these figures is Jacob. In the account of his personality there seem to be mingled legends of differing origin, dating from a time probably far earlier than the developed Jahve cult. The scene with his father-in-law, Laban, represents him as a sort of crafty märchen-hero. He cheats Laban through his knowledge of magic, gaining for himself the choicest of the young lambs by constructing the watering troughs of half-peeled rods of wood—a striking example of so-called imitative magic. On the other hand, Jacob is portrayed as the hero who rolls from the well's mouth the stone which all the servants of Laban could not move. And finally, when he wrestles with Jahve by night on the bank of the stream and is not overcome until the break of day, we are reminded either of a mighty Titan of divine lineage, or possibly of the river demon who, according to ancient folk belief, threatens to engulf every one who crosses the stream, be it even a god. But what is true of the figures of the patriarchal sagas applies also, in part, to Jahve himself. In the remarkable scene in which Jahve visits Abraham near the terebinths of Mamre, he associates with the patriarch as a primus inter pares. He allows Sarah to bake him a cake and to wash his feet, and he then promises Abraham a numerous posterity. He appears as a man among men, though, of course, as one who is superior and who possesses magical power. Only gradually does the god acquire the remoteness of the superhuman. Abraham is later represented as falling down before him, and as scarcely daring to approach him. Here also, however, the god still appears on earth. Finally, when he speaks to Moses from the burning bush, only his voice is perceptible. Thus, his sensuous form vanishes more and more, until we come to the Jahve who uses the prophets as his mouthpiece and is present to them only as a spiritual being. The purified Jahve cult, therefore, was not an original folk-religion. It was the product of priests and prophets, created by them out of a polytheism which contained a rich profusion of demon conceptions, and which was never entirely suppressed.

If an original monotheism is nowhere to be found, one might be tempted to believe conversely, that polytheism represents the starting-point of all mythology. In fact, until very recently this was doubtless the consensus of opinion among mythologists and historians of religion, and the idea is still widely prevalent. For, if we hold in any way to the view that the god-idea is underived, there is but one recourse, once we abandon the idea of an original monotheism. The polytheistic theory is, as a rule, connected with the further contention that god-ideas are directly due to celestial phenomena. In substantiation of this view, it is pointed out that, with the exception of the gods of the underworld, the gods are usually supposed to dwell in the heavens. Accordingly, it is particularly the great heavenly bodies, the sun and the moon, or also the clouds and storms, to which—now to the one and now to the other, according to their particular tendency—these theories trace the origin of the gods. Celestial phenomena were present to man from the beginning, and it is supposed that they aroused his reflection from earliest times on. Those mythologists who champion the celestial theory of the origin of religion, therefore, regard god-ideas as in great measure the products of intellectual activity; these ideas are supposed to represent a sort of primitive explanation of nature, though an explanation, of course, which, in contrast to later science, is fantastical, arbitrary, and under the control of emotion. During the past century, moreover, this class of hypotheses has gradually placed less emphasis on emotional as compared with rational factors. In the first instance, it was the phenomena of storms, clouds, thunder, and lightning that were thought to be the basis of deity belief; later, the sun came to be regarded as the embodiment of the chief god; the present tendency is to emphasize particularly the moon, whose changing phases may easily give rise to various mythological ideas. Does not the proverbial 'man in the moon' survive even to-day as a well-known fragment of mythological conceptions of this sort? Similarly, the crescent moon suggests a sword, a club, a boat, and many other things which, though not conceived as gods, may at any rate be regarded as their weapons or implements. The gods, we are told, then gradually became distinguished from celestial objects and became independent personal beings. The heroes of the hero saga are said to be degenerated gods, as it were. When the myth attributes a divine parentage to the hero, or allows him to enter the realm of the gods upon his death, this is interpreted as indicative of a vague memory that the hero was once himself a god. The lowest place in the scale of heroes is given to the märchen-hero, though he also is supposed in the last analysis to have originated as a celestial deity. The märchen itself is thus regarded as the last stage in the decline of the myth, whose development is held to have been initiated in the distant past by the celestial myth. Accordingly, the most prevalent present-day tendency of nature mythology is to assume an orderly development of a twofold sort. On the one hand, the moon is regarded as having been the earliest object of cult, followed by the sun and the stars. Later, it is supposed, a distinction was made between gods and celestial objects, though the former were still given many celestial attributes. On the other hand, it is held that the gods were more and more anthropomorphized; their celestial origin becoming gradually obscured, they were reduced to heroes of various ranks, ranging from the heroic figures of the saga to the heroes of children's märchen. These theories of an original polytheism are rendered one-sided by the very fact that they are not based upon any investigations whatsoever concerning the gods and myths actually prevalent in folk-belief. They merely give an interpretation of hypothetical conceptions which are supposed to be original, and it is from these that the gods of actual belief are derived. Those who proceed thus believe that the task of the psychologist of religion and of the mythologist is completed with the demonstration that back of every deity of myth there lurks a celestial phenomenon. It has been maintained, for example, that every feature of the Biblical legend of Paradise had its origin in ideas connected with the moon. Paradise itself is the moon. The flaming sword of the angel who guards Paradise is the crescent moon. Adam is either the half-moon or the familiar man in the moon. Finally, Adam's rib, out of which Eve was created, is again the crescent moon.

We need not raise the question whether such a mode of treatment ever correctly interprets any actual mythological conception, or whether it represents nothing other than the creation of the mythologist's imagination. This much is clear, that it leaves out of consideration precisely those mythological ideas and religious views that really live in folk-belief. Doubtless we may assume that celestial phenomena occasionally factored as assimilative elements in the formation of mythological conceptions. But such conceptions cannot possibly have been due exclusively to celestial factors, for the very reason that, even where these are indubitably present, they are inextricably interwoven with terrestrial elements derived from man's immediate environment. Consider, for example, the figure of Helios in Greek mythology. His very name so inevitably suggests the sun that this connection remained unsevered throughout later development. Nevertheless, the Greeks no more identified the god Helios with the sun than they did Zeus himself with thunder and lightning. On the contrary, these celestial phenomena were all only attributes of deities. The god stands in the background, and, in the idea which man forms of him, the image of human heroes plays no less a part than do the impressions made by the shining heavenly bodies. These various interpretations of nature mythology, therefore, overlook an important psychological factor which is operative even in elemental experiences, but which attains increasing significance in proportion as the psychical processes become more complicated, and especially, therefore, in the formation of mythological conceptions. I refer to the assimilative fusion of psychical elements of differing origins. No external object is perceived precisely as it is immediately given in reality. In the experience of it, there are fused numerous elements whose source is within ourselves; these partly reinforce and partly suppress the given elements, thus producing what we call the 'perception' or the 'apprehension' of the object. The process of assimilation is greatly influenced by the emotions that may be present. To the frightened person, thunder and lightning suggest a god who hurls the lightning. Such a person believes that he really sees this god. Either the surrounding portions of the sky assume, in his imagination, the form of an immense anthropomorphic being, or the thunder and lightning lead his gaze to the canopy of clouds, hidden back of which he thinks that he discovers, at least in vague outline, the thundering Zeus. To gain some appreciation of the tremendous potency of assimilative processes, one need but recall certain situations of ordinary life, such as are experienced even apart from the influence of fear or ecstasy. Consider, for example, the vivid impression that may be aroused by theatrical scenery, which in reality consists of little more than suggestive outlines. A particularly striking illustration is offered also by the familiar puzzle pictures. In a picture of the foliage of a tree there are sketched the outlines of a human face or of the head of a cat. An uninitiated observer sees at first only the foliage. Not until his attention has been directed to it does he suddenly discover the head. Once, however, he has seen the latter, he cannot suppress it, try as he may. Here again it is sometimes but a few indistinct outlines that evoke the picture. The truth is that to a very great extent the observer reads the head into the drawing through the activity of his imagination. Now, it is but natural that such an assimilation should be immeasurably enhanced under the influence of the emotions which excite the mythological imagination. As is well known, Apollo, as well as Helios, was represented by the image of the sun. This image, however, was even less adequate to embody the idea of the Greek in the former case than it was in the latter. The Greek was able, however, to imagine the radiant sun as an attribute of the deity or as a manifestation of his activity. He could see in the sun the shield or chariot of the god; in the sun's rays, his missiles. Here again, however, he had in mind the indefinite outlines of a powerful anthropomorphic god, who could become independent of the natural phenomenon according as his name was free from connection with it.

Thus, even those nature gods who might appear to be purely celestial deities, as, for example, Helios, or the lightning-hurling Zeus, are the products of a psychological assimilation of perceptual elements, the most important of which have their ultimate source in terrestrial life. Hence it is that, wherever the nature myth has reached its complete development, the gods appear in human form. It is only in an age still influenced by totemic ideas that zoömorphism occurs alongside of anthropomorphism, or in combination with it. Of such figures, the one which maintained itself longest—as is shown by the history of ancient Egypt—was that of a human body with the head of an animal. After this connection of an incipient deity cult with the ideas of the preceding age had disappeared, the only remaining trace of totemism was the fact that an animal was represented as accompanying the deity. Eventually the animal became a mere symbol used by art in its pictorial representations of the god. Doubtless the lamb, as a symbol of Christ, may be regarded as a late survival of a stage of deity belief which was still semi-totemic, and under the influence of the sacred animals of older cultural religions. The expression 'sacred animals,' moreover, points to the fact that the worship and veneration paid to the god influenced also the attitude taken toward the animal. But however far this development of the god-idea may have advanced, the essential elements of the conception nevertheless remained of terrestrial origin. In the mythological assimilation-complexes that gave rise to gods, celestial phenomena furnished but a part of the elements. At best, they were the exciting stimuli; in many cases, it is doubtful whether they exercised any influence whatsoever upon the origin of mythological conceptions. Whether, for example, the crescent moon has actually any connection with the flaming sword of the angel of Paradise, or whether it suggested the club of Hercules, this and much else is possible, but is incapable of demonstration. Even where this influence upon mythological conceptions is incontestable, celestial phenomena are subordinate to terrestrial factors, and in most cases they have left no trace in consciousness. Proof of the dominant importance of the terrestrial environment is not far to seek. Even the celestial gods are conceived as men or as anthropomorphic beings, and it is usually the earth that is regarded as the scene of their activity.

The theories maintaining the originality of the god-idea have more and more been displaced by the contrary view, namely, that the gods developed out of lower forms of mythological thought. Here there are two distinct interpretations. The first and the older is the ancestor theory. This represents a particular form of animism, for the soul of the ancestor is thought to become a god. The worship of the god, therefore, is held to have been originally a reverence paid to the ancestor. The main evidence for this view is found in the ancestor worship which is actually being practised, among many peoples, even at the present time. Prior to the Jahve religion, such a cult is supposed to have prevailed even among the Israelites. Do not the patriarchs Abraham, Isaac, and Jacob appear as the ancestors of the later tribes of Israel? More significant still are the ancestor cults that have prevailed in China and Japan since very ancient times. It should be remembered, however, that these cults, wherever they occur, represent but more or less prominent elements of more extensive mythological and religious conceptions. Hence the ancestor theory, also, is an arbitrary construction based on a presupposition which is in itself very improbable, namely, that all mythology and religion must eventually be traceable to a single source. The contention, for example, that a Zeus or a Jahve was a human ancestor elevated into a deity is a completely arbitrary supposition, lacking the confirmation of empirical facts.

Finally, there is another theory which, like the ancestor hypothesis, seeks to derive gods, or at least the beings generally regarded as gods, from more primitive mythological ideas. This theory, which was developed by Hermann Usener, the most prominent student of the science of religion among recent classical philologists, might perhaps be referred to, in distinction from the soul and ancestor hypothesis, as the demon theory of the origin of gods. Usener agrees with the rival hypothesis in assuming that the exalted celestial deities were not the first of the higher beings who were feared or worshipped in a cult, but that there were other more temporary gods. Though these many temporary gods are described as demoniacal beings, they are nevertheless regarded as gods of a primitive sort. Usener distinguishes three stages in the development of gods. First, there was the 'god of the moment.' Some phenomenon—such, for example, as a flash of lightning or a clap of thunder—was felt to be divine. But, inasmuch as the impression was vanishing, the mythological idea in question was that of a 'god of the moment.' Then followed a second stage, in which a demoniacal power was associated with a particular place. Following upon these local gods came other gods, representing the guardian powers of a tribe, a vocation, or some other social group. At the third stage of development, the 'particular god' acquired a personal nature, and thus finally became a god proper. The gods of this final stage are called by Usener 'personal gods.'

Although this theory is doubtless in greater consonance with certain general characteristics of myth development than is the ancestor theory, we would urge, as one chief objection, the fact that its god-concept unites mythological-religious elements of a very different nature. In particular, the so-called 'god of a moment' is neither a god, in the proper sense of the word, nor even a demon, but either a particular impression arousing fear, or, on a higher plane, a single manifestation of the activity of a demon or god. The Greeks referred the flash of lightning to Zeus, the lightning-hurler. On a more primitive level, the North American Indian sees in the lightning and thunder the acts of a demon hidden in the clouds. In neither case are the momentary phenomena identified with gods or demons themselves. There is not a shadow of proof in the entire history of myth that such acts or attributes as these, which were attributed to gods and demons, ever existed as independent realities of even but a moment's duration. The so-called 'particular gods,' on the other hand, are in every respect demons and not gods. They are not personal in nature; this also implies that they are not conceived as having a particular form, for somehow the latter always leads to personalization. As a matter of fact, these 'particular gods' are only objectified emotions of fear and terror. Spirits, in the sense of magical agents of disease conceived as invisible beings, or occasionally imaged in the form of fantastic though ever-changing animal shapes, are not gods, but demons. The same holds true of the multitude of nature demons that infest field and forest and the vicinity of streams and gorges. Wherever myth has given these spirits definite forms, they reveal no evidence of traits such as would constitute them individual personalities. This, of course, does not imply that there are no cases at all in which the indeterminate traits ascribed to them are so combined as to result in individual beings. When this occurs, however, we have already transcended the stage of so-called 'particular gods.' Such beings as the Greek Pan or the Germanic Hel must already be classed with gods proper, even though they exhibit traits indicative of a demoniacal past; for the narrowness of character which they manifest results from the fact that they originated directly in a particular emotion. Surely, therefore, the decisive emphasis in the case of deity ideas in general must be placed on the attribute of personality. Gods are personal beings, whose characters reflect the peculiarity of the people who have created them. We see in the god Jahve of the Israelites the clear-cut lines of the stern god who threatens the disobedient, but who also rewards the faithful. More impressive still is the uniqueness of personality in those cases in which a multiplicity of gods causes the development of diverse and partly opposed characteristics in the various gods. How individual are the gods of the Greeks with respect to one another! Under the influence of poetry every god has here become a clearly defined personality, whose individuality was fixed by formative art. Thus, the error of the demon theory or, as it might also be called, the three-stage theory, lies in the fact that it effaces the essential distinctions between god and demon, retaining as the chief characteristic of the multitude of resulting deity-conceptions only the most external quality, that of permanence. For the 'god of a moment' is characterized merely by his extreme transitoriness; the 'particular god' is the 'god of a moment' become somewhat more enduring but not yet possessed of sufficient stability to develop personal traits; the true or personal god, finally, owes his distinctive attribute solely to the permanence of his characteristics. Because of this confusion of the concepts god and demon, there is lacking precisely that which is of most importance for a psychological investigation—namely, an answer to the question as to the intrinsic marks that differentiate a god, in the proper and only true sense of the word, from demons, ancestors, and souls—in short, from all other creations of mythological thought.

Herewith we come to a question which will bring us closer to an answer respecting the origin of gods. By what characteristic marks is a mythological conception to be distinguished as that of an actual god? The question might also be stated in a more concrete form. What characteristics differentiate a god from a demon, who is not yet a god because he lacks personality, and from a hero, who is regarded by the age in which gods originate as somewhat approximating a god but as nevertheless still a man? Or, briefly expressed, how does the god differ from the demon and from the ideal man? The criteria thus demanded are to be found in the traits that are universally ascribed to gods wherever any complete deity mythology and a corresponding religion have been developed. The god is always distinguished by three characteristics. The first of these is that his place of abode is other than that of man. He may occasionally visit man on the earth, but this occurs only rarely. So far as he himself is concerned, the god lives in another world. In this sense, the idea of a 'beyond' is closely bound up with that of gods. As a rule, the 'beyond' is the heavenly world. But gods may dwell also in the regions of the air and clouds between the heaven and the earth, on high mountains, on distant islands, or, finally, under special circumstances, in the depths of the earth. Secondly, the gods lead a perfect life, free, on the whole, from the evils and infirmities of earthly existence. A perfect life, however, is always regarded as primarily a life without death and without sickness. There then develops, though doubtless gradually, the idea of something even more perfect than is involved in this merely negative conception of immortal and painless existence. But at this point ideas begin to differ, so that, in reality, the most universal characteristics of the gods are that they know neither death nor sickness. There are occasional exceptions, however, just as there are with respect to the supra-mundane place of abode. The Greek as well as the Germanic deity sagas represent the gods as possessing a particular food and a particular drink, an idea connected with that of the anthropomorphic nature of these gods. The Germanic gods, especially, are described as capable of maintaining their perfect life only by far exceeding the human measure of food and drink. This, however, is but a subordinate feature. More important is the fact that if, by any unfortunate circumstance, food and drink are lacking, the gods waste away and meet the universal lot of human existence—death. But, even apart from this connection, the Germanic sagas, or at any rate the poetry inspired by them, tell of a decline of gods and of the rise of a new divine hierarchy. It is not to be assumed, of course, that this represents an original element in Germanic mythology. All records of Germanic deity sagas, as we know, date from Christian times. Even though the ancient skalds, as well as those historians who regarded the saga as a bit of actual history, may have made every effort to preserve for posterity the memory of this departed world, they could, nevertheless, hardly have avoided mingling certain Christian ideas with tradition. In view of the actual decline of the former gods, the thought of a Götterdämmerung, in particular, must almost inevitably have forced itself upon them. At any rate, inasmuch as this particular conception represents the gods as subject to death, it contains an element that is bound up with the anthropomorphic nature of the divine beings, though this, of course, is irreconcilable with the immortality originally conceded to them. We are thus brought to the most important characteristic of gods, which is connected with this very fact of their similarity to man. The god is a personality; he has a specific personal character, which gives direction to his will and leads him to send blessings or misfortunes to mortals. These purely human characteristics, however, he possesses in an exalted and complete measure. His will-acts, as well as the emotion from which they spring and the insight by which they are guided, are superhuman in power. But this power is not equivalent to omnipotence. This it cannot be by very reason of the multiplicity of gods, each of whom has a particular sphere of activity. Frequently, moreover, omnipotence is rendered impossible by the idea—likewise carried over from the terrestrial to the supermundane world—of a destiny, an impersonal power behind the wills of gods no less than those of men. This is a conception which deity beliefs inherit from the earlier demon beliefs. True, polytheistic myth itself takes a step in the direction of transcending this limitation when it here also transfers the conditions of the human order to the divine world, and creates for the latter a monarch, a supreme deity ruling over gods and men. But this very projection of human relations into the divine realm prevents the chief deity from being an unlimited ruler. On the one hand, he shares authority with a deliberative assembly consisting of the remaining gods; on the other hand, even behind him there lurk those demoniacal powers which, to a certain extent, continued to assert themselves even after they had been superseded by the gods. For here also it holds true that whatever lives in folk-belief must retain a foundation in myth. The advent of gods nowhere led to the complete banishment of demons. What occurred was that, due to the power of the gods, certain of the demons likewise developed into mighty forces of destiny, though continuing to remain impersonal.

Thus, the god possesses three characteristics: a special dwelling-place, immortality, and a superhuman, though at the same time a human, personality. Leaving out of regard the tribute exacted even of the gods by the last-mentioned of these characteristics, human nature, we have before us the marks which distinguish the god both from the demon and from the hero. The demon, however powerful he may be, lacks the attribute of personality; the hero, as thoroughly human, shares the universal lot of man as regards dwelling-place, length of life, and liability to sickness and death. This places the god midway between the demon and the hero, though, of course, by combining the attributes of both, he is really exalted above them. The demon, in the sense in which the Greeks employed this term, is a fundamental element in the development of all mythologies. There can be no doubt, moreover, that demons appeared far earlier than gods, if we exclude from among the latter those indefinite and transitory personifications of natural phenomena that have wrongly been classed with them—such personifications as those of rocks, hills, clouds, stars, etc., which were widely current even among peoples of nature. According to a belief which has not entirely disappeared even among cultural peoples, the soul leaves the corpse in the form of a demon; the wandering ghost is a demon; demons dwell in the depths, in the neighbourhood of streams, in solitary ravines, in forests and fields, upon and beneath the earth. They are usually threatening, though sometimes beneficent, powers. In every instance, however, they are absolutely impersonal embodiments of the emotions of fear and hope, and it is these emotions, under the assimilative influences of impressions of external nature, that have given rise to them. Thus, demons are usually mundane beings, or, at any rate, have their abode near the surface of the earth; with few exceptions, the most distant realm which they occupy is that of the clouds, particularly the dark rain and thunder clouds. True, the heavenly bodies may manifest demoniacal powers, just as may also the gods. As a rule, however, celestial phenomena are far from belonging to the class of demons proper; they are too constant and too regular in their changes and movements to be thus included. The activity of demons relates exclusively to the welfare of man. Hence it is but natural that demons should be primarily man's co-inhabitants on earth. Usually invisible, they assume sensuously perceptible forms only in the darkness of night, or, more especially, under the influence of heightened emotions. Sometimes they are audible even when invisible. Only in those narratives which tell of demoniacal beings that are not immediately present do demons acquire fairly definite forms. Thus, even soul beliefs—which the fear of the uncanny activity of the departed soul transforms directly into a sort of demon belief—represent the soul in the form of a bird, a snake, or of other specific 'soul animals.' The demons of sickness lurking within the diseased body are usually portrayed as fantastic animals, whose monstrous forms reflect the terrible distress and the torturing pains of sickness. These animals hinder respiration and bore into and lacerate the intestines. Thus, they objectify both the pain of the sickness and the fear aroused in the community by the behaviour of the sick person. No less, however, can the impression of the desert, the dark forest, the lonely ravine, or the terror of an approaching storm cause demons, which are in first instance invisible, to assume definite shapes. Where there is a more highly developed sense of nature, such as begins to manifest itself in the heroic age, this objectification of impressions occurs not only under the influence of strong excitement but also in connection with the peaceful landscape. Here it gives rise to more friendly beings, in the case of whom those characteristics, at least, which made the original demon an object of terror, are moderated so as to find expression in magic of a playful sort. This is the origin of satyrs, sylphs and fauns, of gnomes, giants and dwarfs, elves, fairies, etc., all of whom are debarred from personality by their very multiplicity, while their generic character accurately reflects the mood which led to their creation. The individualization of certain of these beings is, in general, due to poetry. But even poetry does not entirely succeed in freeing the demon from the generic character which once for all represents its nature. Thus, it is the contrast between genericalness and individual personality that differentiates the demon from the god. Every gnome resembles every other, and all nymphs are alike; hence these beings are generally referred to in the plural. Their multiplicity is such that they are imaged in only indefinite forms, except in cases where particularly strong emotions excite a more lively imagination. Indeed, they may be present to consciousness solely as a peculiar feeling associated with particular places or occasions, such as is the case with the Lares, Manes, and Penates of the Romans, and with the similar guardian spirits of the house and the field common among many peoples. Some of these guardian spirits are not very unlike the ancestors of cult. But this only indicates that the ancestor worshipped in cult also approximates to the demon, acquiring a more personal character only in occasional instances in which memory has preserved with considerable faithfulness the traits of a particularly illustrious ancestor. Here, then, we have the condition underlying the origin of gods. Gods are universally the result of a union of demoniacal and heroic elements. The god is at once demon and hero; since, however, the demoniacal element in him magnifies his heroic attributes into the superhuman, and since the personal character which he borrows from the hero supersedes the indefinite and impersonal nature of the demon, he is exalted above them both: the god himself is neither hero nor demon, because he combines in himself the attributes of both, in an ideally magnified form.

The resemblance of demons to gods is due primarily to the magic power which they exert. The demons of sickness torture and destroy men; the cloud demons bring rain and blessing to the fields, or plot ruin when rain does not relieve the drought of the burning sun. By means of magic incantations and ceremonies, these demons can be won over, or, when angry, reconciled. Their own activity, therefore, is magical, and, as regards the effects that it produces, superhuman. In their fleeting and impersonal character, however, they are subhuman. Since the dominant emotions that call them into being are fear and terror, they are generally regarded as enemies not only of man but even of the gods. The struggle between gods and nature-demons is a recurrent theme in the cosmogonies of all cultural peoples. This hostility between demons and gods is connected with the contrast in the feelings evoked by darkness and radiant brightness. Hence the mighty nature-demons are, as a rule, consigned to gloomy abysses, from which they rise to the sky only occasionally, as, for example, in the case of thunder-clouds. The abode of the gods, however, is in the bright celestial realms, and they themselves are radiant beings upon whose activity the harmonious order of nature and the happiness of mankind are dependent. In the strife which the demons carry on with gods, they occasionally develop into counter-gods, as occurred in the case of the Persian Ahriman and the Jewish-Christian Satan. Yet it is significant of the almost insuperable lack of personality characteristic of the demon, that even these counter-gods of darkness and evil are wanting in one trait which is indispensable for a completely developed personality—namely, changes in motives and the capacity to determine at will the nature of these changes. Herein, again, is reflected the fact that the demon has but a single source—namely, fear.

Very different from the relation of the god to the demon is his relation to the hero. The hero, to a greater extent even than the god, is the complete opposite of the demon. For the hero is an idealized man. He is subject to all human destinies, to sickness and death, to afflictions of the soul, and to violent passions. Yet in all these instances the experiences are of a more exalted nature than in the case of ordinary human life. The life as well as the death of the hero are of wide import; the effects of his deeds extend to distant lands and ages. But it is just because the hero is the ideal man himself that he possesses all the more markedly the attribute which the demon lacks—namely, personality. This, of course, does not prevent his character from exhibiting generic differences and antitheses. But herein also the hero is only the idealized counterpart of man, for, despite all its uniqueness and individuality, man's character usually conforms to certain types. Thus, legend introduces the strong, all-conquering hero, and, in contrast with him, the hero who is resourceful and overcomes his enemies through subtle cunning. It tells of the aged man, superior in wisdom and experience, and also of him who, in the unbroken strength of youth and with stormy passion, overthrows all opponents. It further portrays the hero who plots evil, but who is nevertheless characterized by a sharply defined personality.

When we survey these various heroic figures in both their generic and their individual aspects and compare them with the god-personalities, we are struck by the fact that the god was not created directly in the image of a man, but rather in that of the hero, man idealized. It is the hero who gives to the gods those very characteristics which the demon lacks from the outset. Of these, the most important are personality, self-consciousness, and a will controlled by diverse and frequently conflicting motives. This multiplicity of motives has a close connection with the multiplicity of gods. Polytheism is not an accidental feature which may or may not accompany the belief in gods; it is a necessary transitional stage in the development of the god-idea. Folk-belief, which never frees itself entirely from mythology, always retains a plurality of divine beings. Hence true monotheism represents a philosophical development of the god-idea. Though this development was not without influence on the theological speculation which was dominated by traditional doctrines, it was never able to uproot the polytheistic tendency involved in the god-idea from the very beginning. There are two sources from which this tendency springs. Of these, one is external and, therefore, though of great importance for the beginnings of religious development, is transitory. It consists in the influence exerted by the multiplicity of natural phenomena, through the nature myth, upon the number of gods. More important and of more permanent significance is the second or internal motive, namely, the fact that the psychical needs that come to expression in the demand for gods are numerous. There cannot be a single god-ideal any more than a single type of hero. On the contrary, as heroes exhibit the diversity of human effort on an exalted plane, so, in turn, does the realm of gods represent, on a still higher level, the world of heroes. This advance beyond the hero-ideal becomes possible to the mythological imagination only because the very endeavour to exalt the hero above the human itself brought the hero-idea, at the very time of its origin, into connection with the demon-idea. For the demon is a superhuman being, magic-working and unpredictable, affecting in mysterious ways the course of nature and of human destiny. But it lacks the familiar human traits which make the hero an object not only of fear but also of admiration and love. Thus, the fusion of hero and demon results in the final and the greatest of mythological creations, the conception which represents the birth of religion in the proper and ultimately only true sense of the word. I refer to the rise of gods.