punished from such a point of view. A member of one family or community has been killed and its numbers have to that extent been lessened, with the result that the equilibrium is disturbed. The law steps in to restore it, whether by the execution of the murderer (which is rare) or by the payment of compensation in kind or cattle or both. The basic idea is the restoration of the lost equilibrium-which is partly why, in nearly all cases, a girl has to be handed over to the victim's family; and that the murderer may be executed or that the property of his family may be diminished is incidental to this underlying motive, and is in no sense whatever penal. Individuals may be vindictive: the community is rarely vindictive: the law never.

Only in crimes which are held to be definitely anti-social is the law deliberately penal, and by anti-social is meant something much more than the disturbance of this or that equilibrium. It implies an act subversive of the whole fabric of society, an act which unpunished and unchecked would ultimately destroy the body politic. One might perhaps assume that murder, for instance, or any of the (to the African point of view) more personal offences are no less anti-social and, if not decisively punished, would lead to the destruction of society, or at least to a chaotic state in which the usual functions of society would be inoperative. But this is definitely not the case. Offences such as homicide, theft, adultery, injuries, slander, and so on, are offences against a particular individual or against an individual representing a family, community, or association, and when we consider the sanctions which lie behind primitive law we shall find that they are normally sufficient to secure a restitution of the equilibrium. Anti-social crimes, however, which generally speaking comprise witchcraft, incest, and sexual perversions (the last two being associated with witchcraft on the presumption that none but witches and wizards are capable of them) cannot be dealt with by normal methods. This is not a question of equilibrium as no particular individual or community is alone threatened or injured by the crime: its repercussions affect the whole body politic. The insidiousness of its operations and the illegitimate use which it makes of magic and the supernatural render the usual processes of law abortive. One cannot argue with a power which is supernormal and untrammelled by the usual dimen

sions, any more than one can argue with lightning or infinity. Primitive law therefore does the only thing possible and eliminates the menace. Any of these anti-social crimes is punished by death, because that is the only measure which can preserve society.

There is thus no contradiction: in all its processes the function of the law is to maintain equilibrium and to conserve those conditions in which equilibrium can be maintained. Witchcraft endangers these conditions, and culprits are accordingly subjected to the fullest penalty of the law in order that the law may not be inhibited from exercising its natural functions.

While primitive law with its positive injunctions, acting as a constructive and reintegrating agent, does not tend to create criminals as is the case with modern negative legislation, it does, nevertheless, demand absolute conformity from all members of the community. It is the most conservative force in the world, and with rare exceptions traditional codes and traditional standards of behaviour cannot be varied except by the pressure of some external stimulus. Internal growth may continue: minor modifications may occur; but the basic principles, the traditional scheme is not abrogated. Primitive law, that is, does not take into account the non-conformists. In primitive communities, just as in more advanced societies, there are always misfits, who cannot accommodate themselves to things as they are. In European society the lot of these misfits is not entirely enviable. The genius, the prophet, the inventor, have all from time to time been punished for daring to question accepted standards, and though modern society is more tolerant or less sure of itself there are still many who do not fit in with all its requirements. The misfits of primitive communities receive much the same treatment as the misfits of earlier European societies. Traditional law can tolerate no rebels: equilibrium and non-conformity are incompatible. Therefore the rebels, the misfits, the seekers after some new thing must go: if they are not executed for witchcraft (of which genius is almost universally considered a symptom) they are treated as light-witted, tolerated but (as we should say) disfranchised, or they are cast out of the community and have to wander from tribe to tribe till they die or learn to submit to the common law.

What, we may ask before proceeding farther, is the basis of primitive law? Whence does it draw its authority, and on what sanctions is it founded? Its authority lies certainly in its acceptance. It is the law because both tradition and practice accept its rulings. Misfits apart, no offender ever questions the validity of his tribal laws. Once found out he readily admits his offence and is willing to make the conventional reparation. But why does he make reparation? Why does he conform? Why is force so rarely necessary to compel obedience to the law?

The principle of equilibrium only partially answers these questions. The law is based, as we have seen, on that principle, and to a certain extent the principle operates as a sanction and a compelling force of the law. Every one implicitly or explicitly realizes that the principle is there, and is ready to acknowledge a law which has evolved as an integral part of the social structure in which he lives. Self-interest, if nothing else, makes him anxious to observe its edicts, as a disturbance of the social equilibrium would involve him as well as the rest of his associates. A community of interests implies a common attitude, common obligations, and common rights as between all members of the community. Equilibrium and mutuality, which is a phase of equilibrium, tend to ensure the observance of the law and the payment of reparation for any breach of its edicts.

But we must go farther back than this to understand the full compelling force of the law, and here we are brought face to face with a mental attitude which is so logically collectivist as to be difficult of explanation. Society, the community, clan, or family, does not consist only of all its living members, but includes all the dead ancestors. The clan, therefore, is a continuous entity comprising both the living and the dead, and this concept even applies to property. The cattle which a man inherits are not his. He only has their usufruct, and they belong to the clan in its widest connotation, that is to the continuous ancestral clan with its tentacles groping to a remote, almost mythological, past, dead and yet living. The spirit world-for in the societies to which we refer ancestrolatry is universal-is inextricably involved with the present, and the interests, aspirations, ambitions of the dead continue to exercise some control over the living. When

a man dies it is his duty to hand on at least no less than he inherited if he has been spared the mischances of war and famine and pestilence. These cattle cannot be used by him for trade or barter and must be replaced as they die: he can only use them for a marriage dowry with the consent of his family and the clan. For all other purposes he has to earn cattle if he wants to expend them, and this is one of the paramount causes for the increase in cattle theft since European intervention has abolished tribal wars and raids, which were the most fruitful method of acquiring cattle untrammelled by the ancestral lien. We even read that among the Zulu a man marrying with cattle which he has earned or acquired himself is regarded as founder of a new house or clan-a most significant example of the force of the sentiment behind the idea of a spirit-embracing clan.

This concept of a clan makes for a far greater corporate unity than might otherwise have been the case. It lifts law into a metaphysical atmosphere in which clan-consciousness is so all-important that the individual must subordinate himself to it. The law has the moral support not only of the living clan but of all its dead members, not only of the living tribe but of all the tribesmen who have ever lived and died. This terrific antiquity, remote but everpresent, is in itself a very potent factor in securing due regard for the law.

But it does more: it introduces a religious sanction, which is perhaps the most potent factor of all. No compensation for an offence, no reparation is complete without sacrifice. Every offence has to be both legally compensated and purged ceremonially. All the pomp and circumstance of a religious exercise are required to carry the matter to its conclusion. Ritual is inseparable from restitution. The church and the state are one; and this is not because there is any question of morality involved, but entirely because the past still continues into the present, because the dead ancestors, transmuted and deified, still partake in the continuity of the clan. Reparation satisfies the living, but without sacrifice and oblation the wrath of the gods is not appeased. Behind all profane obligations, therefore, there is always the conception of a sacred compulsion, a belief in the omnipotence of the spirit world to avenge a slight or an injury on their descendants. It is

this religious nexus which gives primitive law an authority sufficient to dispense with the mechanics of enforcement.

This habit of obedience to the law does not prevent crime-a word which, though convenient, inadequately expresses those deviations from normal conduct involving loss or injury to others which call for the arbitrament of the law. In every society there are those who traverse the accepted code, and this is no less the case in Africa, where it would appear that, save when the determination of the suit is referred to a religious ordeal, the religious sanction of the law does not operate until the offender has been discovered. Only then do the deified dead reinforce their descendants in their attempts to secure reparation. The initiative is with man just as the offence originated with man, and divinity only throws its weight into the balance to ensure the fulfilment of the law. But while this quasi-religious attitude towards the law does not prevent crime, it does, as we have seen, make satisfaction for the crime much easier. It is due to this also that inquisition into an offence and the trial of the offender dispense with all the formalities of a law court which to European eyes are inherent in the administration of justice. There are few rules of procedure and more often none: the trial, if the matter is of sufficient importance, may take place before a chief or body of elders, but a judge in the accepted sense there is none. Often no verdict or decision is actually given, the parties sensing the public feeling in the matter without definite pronouncement. All are free to attend and any one interested or likely to possess information may speak. Except in what we have called the anti-social crimes, it is an arbitration rather than a trial, and its purpose is to sift the evidence and so to arrange matters between the two parties that a harmonious readjustment may be conveniently affected. More often than not disputants call in as arbiter a third party who has no rank or status in the tribe whatever, and his opinion is as good and carries as much weight as the council of elders. For there is after all no question of law to consider, as the law is universally accepted: only questions of fact are ever in dispute. The supreme arbiter is the law itself, and the sanctions which surround the law and invest it with a despotic omnipotence.

It is now clear why we said that primitive law is both more indi