prudence as compared with penal law "even if it be hazard-
ous to pronounce that the childhood of nations is always a
period of ungoverned violence."

The last remark is emphatically an understatement of the
case. It cannot be too often explained that the extreme in-
dividualism often found in primitive communities is very
far from favoring universal anarchy or anything approach-
ing it. Generally speaking, the unwritten laws of customary
usage are obeyed far more willingly than our written codes,
or rather they are obeyed spontaneously. Among the Crow
personal brawls are looked upon with contempt, and a man
will not readily imperil his social position and invite the
public derision of his joking-relatives by engaging in fisti-
cuffs with a fellow-tribesman. To become the laughing-
stock of his daily associates for minor misdemeanors and
to be completely ostracized for graver offenses are terrific
punishments for the native and they have a deterrent force
of which the infliction of penalties in our sense is often
quite devoid. To this should be added the religious motive.
Certain crimes are reckoned as sins, they are offenses
against the unseen powers of the universe and invite con-
dign punishment regardless of any secular agency. That,
e.g., was the conception underlying Polynesian observance
of the taboo rules. In short, even in the more individualis-
tic societies of the ruder peoples there are adequate motives
for the maintenance of order, though the conception of
order will naturally vary in different places and will some-
times differ widely from ours.

After accounting for the predominance of criminal law
in early society, Maine qualifies his conception by pointing
out that at bottom "the penal law of ancient communities is
not the law of Crimes; it is the law of Wrongs, or, to use
the English technical word, of Torts." This brings us to
the very core of our problem, for what Maine means is that
in archaic jurisprudence it is not the state that is regarded
as the aggrieved party but the individual sufferer and his

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