Page:Encyclopædia Britannica, Ninth Edition, v. 6.djvu/617

ferocious chastisement is the most certain deterrent ; and as he has won most of that which he possesses by taking it forcibly from others, he is not disposed to attribute to his fellow tribesmen any very high respect for property in the abstract. Nevertheless, with the tenure of land in severalty, and the acquisition of some personalty, was necessarily developed, in one form or other, the idea of protection for life and property in general. But small tribes continued to be engaged in frequent conflicts with their neighbours ; and the principles of right and wrong which were applied to the various individuals composing any one tribe were in practice, if not in theory, long disregarded in dealings with the stranger. Outside a certain circle of no very great extent killing was still no murder, taking no theft or robbery, capture or violation of a woman no rape, in the modern sense. When tribes became united into nations, the rivalry of clan against clan was not immediately extin guished ; and the sentiments of the robber chieftain co existed with governments which sanctioned laws for tjie repression of robbers and their deeds of violence. National growth oiit of these discordant elements is to be traced, with the greatest clearness, in the marvellously complete series of records preserved in the English Public Record Office, and not least in those which concern the Scottish and Welsh borders. The law of development is not restricted to ono island, or to races speaking one particular language. Its range appears to be as wide as history, and is sometimes to be detected even where history can hardly be said to exist. If, for instance, we compare the Latin word virtus, the Greek word dvSpeia, and the Cymric word givroldeb, with the English word virtue, we find a curious light thrown upon the progress of human opinion. The first three all had originally the same meaning "virility ;" and all three acquired precisely the same secondary signification " courage." The reason, of course, was that in the most primitive times courage was the one great quality which above all others commanded approbation. The want of a moral attribute so universally approved was in those days a crime, and the imbelles, or cowards, were, if Tacitus is to be believed), subjected by the Germans to a punishment sufficiently horrible. They were thrown under a hurdle and smothered in filth. But now the word virtue, which once had the special meaning of strength of muscle and nerve in the man, has (if any special meaning at all) that of chastity in the woman. Brave law-breakers, in past times, have not only believed themselves to be good men and true, but have also had the sympathy of grrat numbers of their fellow-countrymen. Indeed, if we regard the history of criminal legislation and of crime in England, we find the ideas of the primitive tribesman steadily resisting the advance of civilization, retreating very slowly from position to position, and rarely yielding one without a long and desperate struggle. A most prominent example of this tenacity was in the crime of forcible entry, which hardly ceased to be common before the 18th century. When valour was the greatest or only drtue, one clan took land by force from another, and clansman differed from clansman only in the greater or less vigour and courage shown in making the appropriation. Long after this half-savage condition of society, it remained a maxim of the English law that there was no legal possession of land without actual seisin. The law, indeed, would not allow its right hand to know that which was done by its left. It forbade forcible entries in the reign of Richard II., while forcible entries were an essential part of its theory. As late even as the reign of William IV. the fiction of a forcible entry continued to be one of the chief implements of the conveyancer s art. Without the 583 " common recovery " he would have been unable to carry on the ordinary routine of his business ; and the basis of that fictitious action at law was that one person had wrongfully disseised another of his land. The much abused Court of Star-Chamber owed its definite constitution under the Tudors to a very laudable desire for the repression of forcible entries and certain other kindred offences. Nor was it altogether unsuccessful in attaining the object for which it was established. Those private feuds in which the nobles, like the heads of tribes, had previously delighted, began to die out when private armies could no longer be kept on foot under the name of retainers, or supplied with uniforms under the name of liveries and tokens. Yet the fact that the Star-Chamber did not entirely put an end to forcible entries is a proof that even the most vigorous legislation is not all-powerful against the human nature and the surrounding circum stances with which it may have to deal. Those circum stances, and even that nature, may to some extent be changed, for were it otherwise the British empire and British civilization could now have no existence. But there is a reciprocal action and reaction of laws upon society and of society upon laws. No edict or statute ever made a sudden and complete alteration in the manners of a whole nation, though the growing wisdom of a nation may frequently have suggested a law, and though a well- devised law may have gradually fostered the growth of national wisdom. If it is true that nemo repente fiiit turpissimus it is no less true that nemo repente fuit honestissimiis. The modern security of life and property of every description represents the triumph of new ideas over old. There is or was a popular delusion that the savage was noble, that while his manners were simple his nature was honest, and that he abhorred all such mean arts as those commonly attributed to the huckster and the trader. The truth is that his misdeeds were limited to his own parti cular sphere of action, which was excessively small, and that if he did not commit some of the offences known in our own time it was because he had not the opportunity. Fraud has never increased in equal proportion with the increase of trade and civilization. It infected commerce at the very beginning, and existed during the darkness of the Middle Ages in every form then possible. It may and it sometimes does assume new shapes as society groups itself anew, as occupations and the relations of man to man are changed. But force is its near relative and ally, and it flourishes in times of violence and anarchy. It made itself conspicuous throughout the age of chivalry, though poets and romance writers have attempted to hide it away. With infinite difficulty has civilized mankind so far gained the victory over its own primitive nature as to concur, with some approach to unanimity, in reprobation of the forger- monk, the brigand-knight, and the man who regarded a woman as a chattel and a tempting object for appropria tion. It is most necessary to bear in mind the contrast between the habits or ideas of one period and of another, if we wish to estimate correctly the position of the criminal in modern society, or the alleged uniformity of human actions to be discovered in statistics. There is, no doubt, some truth in the statement that in a modern civilized country Great Britain, for example the statistics of one year bear a very strong resemblance to the statistics of another in many particulars. But a little reflection leads to the conclusion that there is nothing at all marvellous in such coincidences, and that they do not prove human nature to be unalterable, or circumstances to be unchangeable. They only show what might have been predicted beforehand, that human,

beings of the same race, remaining in circumstances