custom amongst advanced nations, such as the ancient Greeks or the modern British, are to be interpreted mainly by comparison with the similar institutions still flourishing amongst ruder peoples.  Secondly, all these ruder peoples themselves, without exception, have their survivals too.  Their customs fall as it were into two layers.  On top is the live part of the fire.  Underneath are smouldering ashes, which, though dying out on the whole, are yet liable here and there to rekindle into flame.

So much for custom as something on the face of it distinct from law, inasmuch as it seems to dispense with punishment.  It remains to note, however, that brute force lurks behind custom, in the form of what Bagehot has called “the persecuting tendency.”  Just a boy at school who happens to offend against the unwritten code has his life made a burden by the rest of his mates, so in the primitive community the fear of a rough handling causes “I must not” to wait upon “I dare not.”  One has only to read Mr. Andrew Lang’s instructive story of the fate of “Why Why, the first Radical,” to realize how amongst savages—­and is it so very different amongst ourselves?—­it pays much better to be respectable than to play the moral hero.

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Let us pass on to examine the beginnings of punitive law.  After all, even under the sway of custom, casual outbreaks are liable to occur.  Some one’s passions will prove too much for him, and there will be an accident.  What happens then in the primitive society?  Let us first consider one of the very unorganized communities at the bottom of the evolutionary scale; as, for example, the little Negritos of the Andaman Islands.  Their justice, explains Mr. Man, in his excellent account of these people, is administered by the simple method of allowing the aggrieved party to take the law into his own hands.  This he usually does by flinging a burning faggot at the offender, or by discharging an arrow at him, though more frequently near him.  Meanwhile all others who may be present are apt to beat a speedy retreat, carrying off as much of their property as their haste will allow, and remaining hid in the jungle until sufficient time has elapsed for the quarrel to have blown over.  Sometimes, however, friends interpose, and seek to deprive the disputants of their weapons.  Should, however, one of them kill the other, nothing is necessarily said or done to him by the rest.  Yet conscience makes cowards of us all; so that the murderer, from prudential motives, will not uncommonly absent himself until he judges that the indignation of the victim’s friends has sufficiently abated.