or any accounts of their ancestors … influences both their public and private habits; and upon no individual is it more imperative than upon their monarch, who, absolute as he is in other respects, wants either the will or the power to break through the long-established regulations of a superstitious people.”9 The king of Ashanti, although represented as a despotic monarch, is nevertheless under an obligation to observe the national customs which have been handed down to the people from remote antiquity, and a practical disregard of this obligation, in the attempt to change some of the old customs, cost one of the kings his throne.10 “The Africans,” says Mr. Winwood Reade, with special reference to Dahomey, “have sometimes their enlightened kings, as the old barbarians had their sages and their priests. But it is seldom in the power of the heads of a people to alter those customs which have been held sacred from time immemorial.”11 The Basutos, among whom “the chiefs have the right of making laws and publishing regulations required by the necessities of the times,” regard such laws, or molaos, as inferior to the mekhoas, “the use and wont,” which constitute the real laws of the country.12 Among the ancient Irish, there was no sovereign authority competent to enact a new law, the function of the king being merely, as chief of the tribal assembly, to see that the proper customs were observed.13
8 Marsden, History of Sumatra, p. 217.
9 Ellis, History of Madagascar, i. 359.
10 Beecham, Ashantee and the Gold Coast, p. 90 sq. Cf. Stuhlmann, Mit Emin Pascha ins Herz von Afrika, p. 523 (A-lūr).
11 Reade, Savage Africa, p. 52 sq.
12 Casalis, Basutos, p. 228.
13 Ancient Laws of Ireland, iii. p. lxxxvi. sq. Cherry, Growth of Criminal Law, p. 33.
In competition with law, custom frequently carries the day. In India, especially in the South, “custom has always been to a great extent superior to the written law.”14 In the Ramnad case, the Judicial Committee expressly declared that, “under the Hindu system of law, clear proof of usage will outweigh the written text of the law.”15 It was also a maxim of the Roman jurists that laws may be abrogated by desuetude or contrary usage;16 and in modern times the same doctrine is acted upon in Scotland.17 Moreover, when a custom cannot abrogate the law, it may still have a paralysing influence on its execution. According to the laws of European nations, a man who has killed another in a duel is to be treated as a homicide; yet wherever the duel exists as a custom, the law against it is ineffective. So it is on the Continent, and so it was in England in the eighteenth century, when a well-informed writer could affirm that he had “not found any case of an actual execution in England in consequence of a duel fairly fought.”18 In this instance the ineffectiveness of the law is owing to the fact that the law has not been able to abolish an old custom. But the superiority of custom also shows itself in cases where the law itself is getting antiquated, and a new custom, enforced by public opinion, springs up in opposition to it. Thus, contrary to law and earlier usage, it is nowadays the custom of certain European countries that a sentence of death is not carried into execution. Even “bad habits” tend to weaken the authority of the law. Probably the two most prominent civil vices of the Chinese are bribery and gambling. Against both these vices their penal code speaks with no uncertain sound; and yet, according to Professor Douglas, it is no exaggeration to say that if the law were enforced, it would make a clean sweep of ninety-nine of every hundred officials in the empire.19 Other illustrations of the same principle may be found much nearer home.
14 Burnell, quoted by Nelson, View of the Hindū Law, p. 136.
15 Mayne, Treatise on Hindu Law and Usage, p. 41.
16 Institutiones, i. 2. 11. Digesta, i. 3. 32.
17 Mackenzie, Studies in Roman Law, p. 54.
18 Quoted by Bosquett, Treatise on Duelling, p. 80. Cf. A Short Treatise upon the Propriety and Necessity of Duelling, printed at Bath in 1779. In 1808, however, Major Campbell was sentenced to death and executed for killing Captain Boyd in a duel (Storr, ‘Duel,’ in Encyclopædia Britannica, vii. 514).
19 Douglas, Society in China, p. 82.
Custom has proved stronger than law and religion combined. Sir Richard Burton writes of the Bedouins, “Though the revealed law of the Koran, being insufficient for the Desert, is openly disregarded, the immemorial customs of the Kazi al-Arab (the Judge of the Arabs) form a system stringent in the extreme.”20 So, also, the Turkomans are ruled, often tyrannised over, by a mighty sovereign, invisible indeed to themselves, but whose presence is plainly discerned in the word deb—“custom,” “usage.” Our authority adds:—“It is very remarkable how little the ‘Deb’ has suffered in its struggle of eight centuries with Mahommedanism. Many usages, which are prohibited to the Islamite, and which the Mollahs make the object of violent attack, exist in all their ancient originality.”21
20 Burton, Pilgrimage to Al-Madinah and Meccah, ii. 87.
21 Vámbéry, Travels in Central Asia, p. 310 sqq.
The laws themselves, in fact, command obedience more as customs than as laws. A rule of conduct which, from one point of view, is a law, is in most cases, from another point of view, a custom; for, as Hegel remarks, “the valid laws of a nation, when written and collected, do not cease to be customs.”22 There are instances of laws that were never published, the knowledge and administration of which belonged to a privileged class, and which nevertheless were respected and obeyed.23 And among ourselves the ordinary citizen stands in no need of studying the laws under which he lives, custom being generally the safe guiding star of his conduct. Custom, as Bacon said, is “the principal magistrate of man’s life,”24 or, as the ancients put it, “the king of all men.”25