In the final judgment of the public upon a conflict or an issue, we expect, to be sure, some sort of unanimity of judgment, but in the general consensus there will be some individual differences of opinion still unmediated, or only partially so, and final agreement of the public will be more or less qualified by all the different opinions that co-operated to form its judgment.

In the materials which follow a distinction is made between public opinion and the mores, and this distinction is important. Custom and the folkways, like habit in the individual, may be regarded as a mere residuum of past practices. When folkways a.s.sume the character of mores, they are no longer merely matters of fact and common sense, they are judgments upon matters which were probably once live issues and as such they may be regarded as the products of public opinion.

Ritual, religious or social, is probably the crystallization of forms of behavior which, like the choral dance, are the direct expression of the emotions and the instincts. The mores, on the other hand, in so far as they contain a rational element, are the acc.u.mulations, the residuum, not only of past practices, but of judgments such as find expression in public opinion. The mores, as thus conceived, are the judgments of public opinion in regard to issues that have been settled and forgotten.

L. T. Hobhouse, in his volume, _Morals in Evolution_, has described, in a convincing way, the process by which, as he conceives it, custom is modified and grows under the influence of the personal judgments of individuals and of the public. Public opinion, as he defines it, is simply the combined and sublimated judgments of individuals.

Most of these judgments are, to be sure, merely the repet.i.tion of old formulas. But occasionally, when the subject of discussion touches us more deeply, when it touches upon some matter in which we have had a deeper and more intimate experience, the ordinary patter that pa.s.ses as public opinion is dissipated and we originate a moral judgment that not only differs from, but is in conflict with, the prevailing opinion. In that case "we become, as it were, centers from which judgments of one kind or another radiate and from which they pa.s.s forth to fill the atmosphere of opinion and take their place among the influences that mould the judgments of men."

The manner in which public opinion issues from the interaction of individuals, and moral judgments are formed that eventually become the basis of law, may be gathered from the way in which the process goes on in the daily life about us.

No sooner has the judgment escaped us--a winged word from our own lips--than it impinges on the judgment similarly flying forth to do its work from our next-door neighbor, and if the subject is an exciting one the air is soon full of the winged forces clashing, deflecting or reinforcing one another as the case may be, and generally settling down toward some preponderating opinion which is society's judgment on the case.

But in the course of the conflict many of the original judgments are modified. Discussion, further consideration, above all, the mere influence of our neighbour's opinion reacts on each of us, with a stress that is proportioned to various mental and moral characteristics of our own, our clearness of vision, our firmness, or, perhaps, obstinacy of character, our self-confidence, and so forth. Thus, the controversy will tend to leave its mark, small or great, on those who took part in it. It will tend to modify their modes of judgment, confirming one, perhaps, in his former ways, shaping the confidence of another, opening the eyes of a third. Similarly, it will tend to set a precedent for future judgments. It will affect what men say and think on the next question that turns up. It adds its weight, of one grain it may be, to some force that is turning the scale of opinion and preparing society for some new departure. In any case, we have here in miniature at work every day before our eyes the essential process by which moral judgments arise and grow.[257]

c) _Inst.i.tutions._--An inst.i.tution, according to Sumner, consists of a concept and a structure. The concept defines the purpose, interest, or function of the inst.i.tution. The structure embodies the idea of the inst.i.tution and furnishes the instrumentalities through which the idea is put into action. The process by which purposes, whether they are individual or collective, are embodied in structures is a continuous one. But the structures thus formed are not physical, at least not entirely so. Structure, in the sense that Sumner uses the term, belongs, as he says, to a category of its own. "It is a category in which custom produces continuity, coherence, and consistency, so that the word 'structure' may properly be applied to the fabric of relations and prescribed positions with which functions are permanently connected."

Just as every individual member of a community partic.i.p.ates in the process by which custom and public opinion are made, so also he partic.i.p.ates in the creation of the structure, that "cake of custom"

which, when it embodies a definite social function, we call an inst.i.tution.

Inst.i.tutions may be created just as laws are enacted, but only when a social situation exists to which they correspond will they become operative and effective. Inst.i.tutions, like laws, rest upon the mores and are supported by public opinion. Otherwise they remain mere paper projects or artefacts that perform no real function. History records the efforts of conquering peoples to impose upon the conquered their own laws and inst.i.tutions. The efforts are instructive, but not encouraging.

The most striking modern instance is the effort of King Leopold of Belgium to introduce civilization into the Congo Free State.[258]

Law, like public opinion, owes its rational and secular character to the fact that it arose out of an effort to compromise conflict and to interpret matters which were in dispute.

To seek vengeance for a wrong committed was a natural impulse, and the recognition of this fact in custom established it not merely as a right but as a duty. War, the modern form of trial by battle, the vendetta, and the duel are examples that have survived down to modern times of this natural and primitive method of settling disputes.

In all these forms of conflict custom and the mores have tended to limit the issues and define the conditions under which disputes might be settled by force. At the same time public opinion, in pa.s.sing judgment on the issues, exercised a positive influence on the outcome of the struggle.

Gradually, as men realized the losses which conflicts incurred, the community has intervened to prevent them. At a time when the blood feud was still sanctioned by the mores, cities of refuge and sanctuaries were established to which one who had incurred a blood feud might flee until his case could be investigated. If it then appeared that the wrong committed had been unintentional or if there were other mitigating circ.u.mstances, he might find in the sanctuary protection. Otherwise, if a crime had been committed in cold blood, "lying in wait," or "in enmity," as the ancient Jewish law books called it, he might be put to death by the avenger of blood, "when he meeteth him."[259]

Thus, gradually, the principle became established that the community might intervene, not merely to insure that vengeance was executed in due form, but to determine the facts, and thus courts which determined by legal process the guilt or innocence of the accused were established.

It does not appear that courts of justice were ever set up within the kinship group for the trial of offenses, although efforts were made there first of all, by the elders and the headmen, to compromise quarrels and compose differences.

Courts first came into existence, the evidence indicates, when society was organized over wider areas and after some authority had been established outside of the local community. As society was organized over a wider territory, control was extended to ever wider areas of human life until we have at present a program for international courts with power to intervene between nations to prevent wars.[260]

Society, like the individual man, moves and acts under the influence of a mult.i.tude of minor impulses and tendencies which mutually interact to produce a more general tendency which then dominates all the individuals of the group. This explains the fact that a group, even a mere casual collection of individuals like a crowd, is enabled to act more or less as a unit. The crowd acts under the influence of such a dominant tendency, unreflectively, without definite reference to a past or a future. The crowd has no past and no future. The public introduces into this vortex of impulses the factor of reflection. The public presupposes the existence of a common impulse such as manifests itself in the crowd, but it presupposes, also, the existence of individuals and groups of individuals representing divergent tendencies. These individuals interact upon one another _critically_. The public is, what the crowd is not, a discussion group. The very existence of discussion presupposes objective standards of truth and of fact. The action of the public is based on a universe of discourse in which things, although they may and do have for every individual somewhat different value, are describable at any rate in terms that mean the same to all individuals. The public, in other words, moves in an objective and intelligible world.

Law is based on custom. Custom is group habit. As the group acts it creates custom. There is implicit in custom a conception and a rule of action, which is regarded as right and proper in the circ.u.mstances. Law makes this rule of action explicit. Law grows up, however, out of a distinction between this rule of action and the facts. Custom is bound up with the facts under which the custom grew up. Law is the result of an effort to frame the rule of action implicit in custom in such general terms that it can be made to apply to new situations, involving new sets of facts. This distinction between the law and the facts did not exist in primitive society. The evolution of law and jurisprudence has been in the direction of an increasingly clearer recognition of this distinction between law and the facts. This has meant in practice an increasing recognition by the courts of the facts, and a disposition to act in accordance with them. The present disposition of courts, as, for example, the juvenile courts, to call to their a.s.sistance experts to examine the mental condition of children who are brought before them and to secure the a.s.sistance of juvenile-court officers to advise and a.s.sist them in the enforcement of the law, is an ill.u.s.tration of an increasing disposition to take account of the facts.

The increasing interest in the natural history of the law and of legal inst.i.tutions, and the increasing disposition to interpret it in sociological terms, from the point of view of its function, is another evidence of the same tendency.

II. MATERIALS

A. ELEMENTARY FORMS OF SOCIAL CONTROL

1. Control in the Crowd and the Public[261]

In August, 1914, I was a cowboy on a ranch in the interior of British Columbia. How good a cowboy I would not undertake to say, because if there were any errands off the ranch the foreman seemed better able to spare me for them than anyone else in the outfit.

One ambition, and one only, possessed me in those days. And it was not to own the ranch! All in the world I wanted was to acc.u.mulate money enough to carry me to San Francisco when the Panama exposition opened in the autumn. After that I didn't care. It would be time enough to worry about another job when I had seen the fair.

Ordinarily I was riding the range five days in the week. Sat.u.r.days I was sent on a 35-mile round trip for the mail. It was the most delightful day of them all for me. The trail lay down the valley of the Fraser and although I had been riding it for months it still wove a spell over me that never could be broken. Slipping rapidly by as though escaping to the sea from the grasp of the hills that hemmed it in on all sides, the river always fascinated me. It was new every time I reached its edge.

An early Sat.u.r.day morning in August found me jogging slowly along the trail to Dog Creek. Dog Creek was our post-office and trading-center.

This morning, however, my mind was less on the beauties of the Fraser than on the Dog Creek hotel. Every week I had my dinner there before starting in mid-afternoon on my return to the ranch, and this day had succeeded one of misunderstanding with "Cookie" wherein all the boys of our outfit had come off second-best. I was hungry and that dinner at the hotel was going to taste mighty good. Out there on the range we had heard rumors of a war in Europe. We all talked it over in the evening and decided it was another one of those fights that were always starting in the Balkans. One had just been finished a few months before and we thought it was about time another was under way, so we gave the matter no particular thought. But when I got within sight of Dog Creek I knew something was up. The first thing I heard was that somebody had retreated from Mons and that the Germans were chasing them. So, the Germans were fighting anyway. Then a big Indian came up to me as I was getting off my pony and told me England's big white chief was going to war, or had gone, he wasn't certain which, but he was going too. Would I?

I laughed at him. "What do you mean, go to war?" I asked him.

I wasn't English; I wasn't Canadian. I was from the good old U.S.A. and from all we could understand the States were neutral. So, I reasoned, I ought to be neutral too, and I went in to see what there might be to eat.

There was plenty of excitement in the dining-room. Under its influence I began to look at the thing in a different light. While I was an alien, I had lived in Canada. I had enjoyed her hospitality. Much of my education was acquired in a Canadian school. Canadians were among my dearest friends. Some of these very fellows, there in Dog Creek, were "going down" to enlist.

All the afternoon we argued about it. Politics, economics, diplomacy; none of them entered into the question. In fact we hadn't the faintest idea what the war was all about. Our discussion hinged solely on what we, personally, ought to do. England was at war. She had sent out a call to all the Empire for men; for help. Dog Creek heard and was going to answer that call. Even if I were an alien I had been in that district for more than a year and I owed it to Dog Creek and the district to join up with the rest. By that time I wanted to go. I was crazy to go! It would be great to see London and maybe Paris and some of the other famous old towns--if the war lasted long enough for us to get over there. I began to bubble over with enthusiasm, just thinking about it.

So I made an appointment with some of the boys for the next evening, rode back to the ranch and threw the mail and my job at the foreman.

A week later we were in Vancouver. Then things began to get plainer--to some of the fellows. We heard of broken treaties, "sc.r.a.ps of paper,"

"Kultur," the rights of nations, big and small, "freedom of the seas,"

and other phrases that meant less than nothing to most of us. It was enough for me, then, that the country which had given me the protection of its laws wanted to help England. I trusted the government to know what it was doing. Before we were in town an hour we found ourselves at a recruiting office. By the simple expedient of moving my birthplace a few hundred miles north I became a Canadian and a member of the expeditionary force--a big word with a big meaning. Christmas came and I was in a well-trained battalion of troops with no more knowledge of the war than the retreat from Mons, the battles of the Marne and the Aisne, and an occasional newspaper report of the capture of a hundred thousand troops here and a couple of hundred thousand casualties somewhere else.

We knew, at that rate, it couldn't possibly last until we got to the other side, but we prayed loudly that it would. In April we heard of the ga.s.sing of the first Canadians at Ypres. Then the casualty lists from that field arrived and hit Vancouver with a thud. Instantly a change came over the city. Before that day, war had been a romance, a thing far away about which to read and over which to wave flags. It was intangible, impersonal. It was the same att.i.tude the States exhibited in the autumn of '17. Then suddenly it became real. This chap and that chap; a neighbor boy, a fellow from the next block or the next desk.

Dead! Ga.s.sed! This was war; direct, personal, where you could count the toll among your friends. Personally, I thought that what the Germans had done was a terrible thing and I wondered what kind of people they might be that they could, without warning, deliver such a foul blow. In a prize ring the Kaiser would have lost the decision then and there. We wondered about gas and discussed it by the hour in our barracks. Some of us, bigger fools than the rest, insisted that the German nation would repudiate its army. But days went by and nothing of the kind occurred.

It was then I began to take my soldiering a little more seriously. If a nation wanted to win a war so badly that it would d.a.m.n its good name forever by using means ruled by all humanity as beyond the bounds of civilized warfare, it must have a very big object in view. And I started--late it is true--to obtain some clue to those objects.

May found us at our port of embarkation for the voyage to England. The news of the "Lusitania" came over the wires and that evening our convoy steamed. For the first time, I believe, I fully realized I was a soldier in the greatest war of all the ages.

Between poker, "blackjack," and "crown and anchor" with the crew, we talked over the two big things that had happened in our soldier lives--gas and the "Lusitania." And to these we later added liquid fire.

Our arguments, our logic, may have been elemental, but I insist they struck at the root. I may sum them up thus: Germany was not using the methods of fighting that could be countenanced by a civilized nation. As the nation stood behind its army in all this barbarism, there must be something inherently lacking in it despite its wonderful music, its divine poetry, its record in the sciences. It, too, must be barbarian at heart. We agreed that if it should win this war it would be very uncomfortable to belong to one of the allied nations, or even to live in the world at all, since it was certain German manners and German methods would not improve with victory. And we, as a battalion, were ready to take our places in France to back up our words with deeds.

A week or so later we landed in England. A marked change had come over the men since the day we left Halifax. Then most of us regarded the whole war, or our part in it, as more or less of a lark. On landing we were still for a lark, but something else had come into our consciousness. We were soldiers fighting for a cause--a cause clear cut and well defined--the saving of the world from a militarily mad country without a conscience. At our camp in England we saw those boys of the first division who had stood in their trenches in front of Ypres one bright April morning and watched with great curiosity a peculiar looking bank of fog roll toward them from the enemy's line. It rolled into their trenches, and in a second those men were choking and gasping for breath.

Their lungs filled with the rotten stuff, and they were dying by dozens in the most terrible agony, beating off even as they died a part of the "brave" Prussian army as it came up behind those gas clouds; came up with gas masks on and bayonets dripping with the blood of men lying on the ground fighting, true, but for breath. A great army, that Prussian army! And what a "glorious" victory! Truly should the Hun be proud! So far as I am concerned, Germany did not lose the war at the battle of the Marne, at the Aisne, or at the Yser. She lost it there at Ypres, on April 22, 1915. It is no exaggeration when I say our eagerness to work, to complete our training, to learn how to kill, so we could take our places in the line, and help fight off those mad people, grew by the hour. _They_ stiffened our backs and made us fighting mad. We saw what they had done to our boys from Canada; they and their gas. The effect on our battalion was the effect on the whole army, and, I am quite sure, on the rest of the world. They put themselves beyond the pale. They compelled the world to look on them as mad dogs, and to treat them as mad dogs. We trained in England until August, when we went to France. To all outward appearances we were still happy, carefree soldiers, all out for a good time. We were happy! We were happy we were there, and down deep there was solid satisfaction, not on account of the different-colored books that were issuing from every chancellory in Europe, but from a feeling rooted in white men's hearts, backed by the knowledge of Germany's conduct, that we were there in a righteous cause.

Our second stop in our march toward the line was a little village which had been occupied by the Boches in their mad dash toward Paris. Our billet was a farm just on the edge of the village. The housewife permitted us in her kitchen to do our cooking, at the same time selling us coffee. We stayed there two or three days and became quite friendly with her, even if she did scold us for our muddy boots. Two pretty little kiddies played around the house, got in the way, were scolded and spanked and in the next instant loved to death by Madame. Then she would parade them before a picture of a clean-cut looking Frenchman in the uniform of the army, and say something about "apres la guerre." In a little crib to one side of the room was a tiny baby, neglected by Madame, except that she bathed and fed it. The neglect was so p.r.o.nounced that our curiosity was aroused. The explanation came through the _estaminet_ gossip, and later from Madame herself. A Hun captain of cavalry had stayed there a few days in August, '14, and not only had he allowed his detachment full license in the village, but had abused his position in the house in the accustomed manner of his b.e.s.t.i.a.l cla.s.s. As Madame told us her story; how her husband had rushed off to his unit with the first call for reserves, leaving her alone with two children, and how the blond beast had come, our fists clenched and we boiled with rage. That is German war! but it is not all. What will be the stories that come out of what is now occupied France? This Frenchwoman's story was new to us then, but, like other things in the war, as we moved through the country it became common enough, with here and there a revolting detail more horrible than anything we had heard before.

Now and then Germany expresses astonishment at the persistence of the British and the French. They are a funny people, the Germans. There are so many things they do not, perhaps cannot, understand. They never could understand why Americans, such as myself, who enlisted in a spirit of adventure, and with not a single thought on the justice of the cause, could experience such a marked change of feeling as to regard this conflict as the most holy crusade in which a man could engage. It is a holy crusade! Never in the history of the world was the cause of right more certainly on the side of an army than it is today on the side of the allies: We who have been through the furnace of France know this. I only say what every other American who has been fighting under an alien flag said when our country came in: "Thank G.o.d we have done it. Some boy, Wilson, believe me!"

2. Ceremonial Control[262]

If, disregarding conduct that is entirely private, we consider only that species of conduct which involves direct relations with other persons; and if under the name government we include all control of conduct, however arising; then we must say that the earliest kind of government, the most general kind of government, and the government which is ever spontaneously recommencing, is the government of ceremonial observance.

This kind of government, besides preceding other kinds, and besides having in all places and times approached nearer to universality of influence, has ever had, and continues to have, the largest share in regulating men's lives.

Proof that the modifications of conduct called "manners" and "behavior"

arise before those which political and religious restraints cause is yielded by the fact that, besides preceding social evolution, they precede human evolution: they are traceable among the higher animals.

The dog afraid of being beaten comes crawling up to his master clearly manifesting the desire to show submission. Nor is it solely to human beings that dogs use such propitiatory actions. They do the like one to another. All have occasionally seen how, on the approach of some formidable Newfoundland or mastiff, a small spaniel, in the extremity of its terror, throws itself on its back with legs in the air. Clearly then, besides certain modes of behavior expressing affection, which are established still earlier in creatures lower than man, there are established certain modes of behavior expressing subjection.

After recognizing this fact, we shall be prepared to recognize the fact that daily intercourse among the lowest savages, whose small loose groups, scarcely to be called social, are without political or religious regulation, is under a considerable amount of ceremonial regulation. No ruling agency beyond that arising from personal superiority characterizes a horde of Australians; but every such horde has imperative observances. Strangers meeting must remain some time silent; a mile from an encampment approach has to be heralded by loud _cooeys_; a green bough is used as an emblem of peace; and brotherly feeling is indicated by exchange of names. Ceremonial control is highly developed in many places where other forms of control are but rudimentary. The wild Comanche "exacts the observance of his rules of etiquette from strangers," and "is greatly offended" by any breach of them. When Araucanians meet, the inquiries, felicitations, and condolences which custom demands are so elaborate that "the formality occupies ten or fifteen minutes."

That ceremonial restraint, preceding other forms of restraint, continues ever to be the most widely diffused form of restraint we are shown by such facts as that in all intercourse between members of each society, the decisively governmental actions are usually prefaced by this government of observances. The emba.s.sy may fail, negotiation may be brought to a close by war, coercion of one society by another may set up wider political rule with its peremptory commands; but there is habitually this more general and vague regulation of conduct preceding the more special and definite. So within a community acts of relatively stringent control coming from ruling agencies, civil and religious, begin with and are qualified by this ceremonial control which not only initiates but in a sense envelops all other. Functionaries, ecclesiastical and political, coercive as their proceedings may be, conform them in large measure to the requirements of courtesy. The priest, however arrogant his a.s.sumption, makes a civil salute; and the officer of the law performs his duty subject to certain propitiatory words and movements.