Front Page Titles (by Subject) SECTION II: The powers with which the chief of a rude tribe is commonly invested. - The Origin of the Distinction of Ranks
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SECTION II: The powers with which the chief of a rude tribe is commonly invested. - John Millar, The Origin of the Distinction of Ranks 
The Origin of the Distinction of Ranks; or, An Inquiry into the Circumstances which give rise to Influence and Authority in the Different Members of Society, edited and with an Introduction by Aaron Garrett (Indianapolis: Liberty Fund, 2006).
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The powers with which the chief of a rude tribe is commonly invested.
The powers which belong to this early magistrate, who is thus exalted to the head of a rude society, are such as might be expected from the nature of his office, and from the circumstances of the people over whom he is placed.
He is at first the commander of their forces, and has merely the direction of their measures during the time of an engagement. But having acted for some time in this capacity, he finds encouragement to exert his authority on other occasions, and is entrusted with various branches of public administration.
From his peculiar situation, he is more immediately led to attend to the defence of the society, to suggest such precautions as may be necessary for that purpose, and to point out those enterprises which he thinks it would be expedient for them to undertake. By degrees they are accustomed to follow his opinion, in planning as well as in conducting their several expeditions. Warmly attached to his person, and zealous to promote his interest, they are disposed to accompany him for his own sake, and to espouse his quarrel upon every<162> occasion. “The Germans,” says Tacitus, “esteem it an inviolable duty to defend their chief, to maintain his dignity, and to yield him the glory of all their exploits. The chiefs fight for victory: the attendants only for the chief.”* As the leader of a tribe affords protection and security to all its members, so he expects that they should make a proper return for these good offices by serving him in war. To refuse this service would not only expose them to his resentment, but be regarded as a mark of infidelity or cowardice that would disgrace them for ever in the opinion of all their kindred. When, on the other hand, they are willing to fulfil their duty, by appearing in the field as often as they are summoned, and by discharging with honour the trust that is reposed in them, they are admitted to be the friends and companions of the chief; they are entertained at his table, and partake in all his amusements; and after the improvement of agriculture has given rise to the appropriation of land, they obtain the possession of landed estates, proportioned to their merit, and suited to their rank and circumstances.
As the chief is, by his office, engaged in protecting and securing the members of his tribe from the hostile attacks of their neighbours, so he endea-<163>vours to prevent those disorders and quarrels which may sometimes arise among themselves, and which tend to weaken and disturb the society. When a dispute or controversy happens among those who belong to different families, he readily interposes by his good offices, in order to bring about a reconciliation between the parties; who at the same time, if they choose to avoid an open rupture, may probably be willing to terminate their difference by referring it to his judgment. To render his decisions effectual, he is, at first, under the necessity of employing persuasion and entreaty, and of calling to his assistance the several heads of families in the tribe. When his authority is better established, he ventures to execute his sentences by force; in which, from considerations of expediency, he is naturally supported by every impartial and unprejudiced member of the society. Having been accustomed to determine causes in consequence of a reference, and finding that persons, accused of injustice, are frequently averse to such determination, he is at length induced, when complaints are made, to summon parties before him, and to judge of their differences independent of their consent. Thus he acquires a regular jurisdiction both in civil and criminal cases; in the exercise of which particular officers of court are gradually set apart to enforce his commands: and when law-suits become numerous, a deputy-judge is appointed, from whom the people may expect more attention to<164> the dispatch of business than the chief is usually inclined to bestow.
Of this gradual progress in the judicial power of a magistrate, from the period when he is merely an arbiter, to that when he is enabled to execute his decrees, and to call parties before him, several vestiges are still to be found even in the laws of polished nations. Among the Romans, the civil judge had no power to determine a law suit, unless the parties had previously referred the cause to his decision, by a contract which was called litis contestatio.1 In England, at this day, no criminal trial can proceed, until the culprit, by his pleading, has acknowledged the authority of the court. But while these practices were retained, from a superstitious regard to ancient usage, a ridiculous circuit was made, to avoid the inconveniencies of which they were manifestly productive. At Rome, the plaintiff, after having desired the defendant to come voluntarily into court, was, upon his refusal, permitted to drag him by the throat;* and by the English law, the defendant, who stands mute, is subjected to the peine fort et dure,2 a species of torture intended to overcome the obstinacy of such as are accused of atrocious crimes.
According to the systems of religion which have prevailed in the unenlightened parts of the world, mankind have imagined that the Supreme Being is endowed with passions and sentiments resem-<165>bling their own, and that he views the extraordinary talents and abilities of their leader with such approbation and esteem as these qualities never fail to excite in themselves. The same person whom they look upon as the first of mortals, is naturally believed to be the peculiar favourite of Heaven, and is therefore regarded as the most capable to intercede in their behalf, to explain the will of the Deity, and to point out the most effectual means to avert his anger, or to procure his favour.
The admiration of a military leader in rude countries, has frequently proceeded so far as to produce a belief of his being sprung from a heavenly original, and to render him the object of that adoration which is due to the Supreme Being.
In some of the American tribes, the chiefs carry the name of the sun, from whom they are supposed to be descended, and whom they are understood to represent upon earth.* The Yncas of Peru derived themselves, in like manner, from the sun. In the kingdom of Loango, the prince is worshipped as a god by his subjects. They give him the name or title usually bestowed upon the Deity; and they address him with the utmost solemnity for rain or fruitful seasons.† <166>
The superstition of the early Greeks, in this particular, is well known; which was carried to such a height, as enabled almost every family of distinction to count kindred with some one or other of the celestial deities. It is in conformity to this ancient mythology that Racine has put the following beautiful address into the mouth of Phedra.
The same principle has disposed men to deify those heroes who have rendered themselves illustrious by their public spirit, and their eminent abilities; to imagine that in another state of existence they retain their former patriotic sentiments, and being possessed of superior power, continue, with unremitting vigilance, to ward off the misfortunes, and to promote the happiness of their people.
When such are the prevailing dispositions of a people, the chief of a barbarous tribe is naturally raised to be their high priest; or if he does not himself exercise that office, he obtains at least the direction and superintendence of their religious concerns. For some time after the building of Rome, the leader of each curia, or tribe, is said to have been their chief ecclesiastical officer. A similar police in this respect appears to have been<167> originally established in the cities of Greece, and has probably taken place among the primitive inhabitants of most countries. It may easily be conceived, that in ignorant nations, guided by omens and dreams, and subject to all the terrors of gross superstition, this branch of power, when added to the conduct of war, and the distribution of justice, will be an engine of great consequence to the magistrate, for carrying through his measures, and for extending his authority.
As, in conducting the affairs of a community, in the management of what relates to peace or war, and in the administration of justice, various abuses are apt to be committed, and many more may still be apprehended, the people are gradually led, by experience and observation, to introduce particular statutes or laws, in order to correct or ascertain their practice for the future. Even this legislative power, by which all the other branches of government are controuled and directed, is naturally assumed by the chief, after he has acquired considerable influence and authority. When the members of his tribe have become in a great measure dependent upon him with regard to their property, they are in no condition to dispute his commands, or to refuse obedience to those ordinances which he issues at pleasure, in order to model or establish the constitution of the society.
From these observations, we may form an idea of that constitution of government which is natu-<168>rally introduced among the members of a rude tribe or village. Each of the different families of which it is composed is under the jurisdiction of the father, and the whole community is subjected to a chief or leader, who enjoys a degree of influence and authority according to the superior abilities with which he is endowed, or the wealth which he has been enabled to acquire.
The rudest form of this government may be discovered among the Indians of America. As these people subsist, for the most part, by hunting or fishing, they have no means of obtaining so much wealth as will raise any one person greatly above his companions. They are divided into small independent villages, in each of which there is a chief, who is their principal leader in war. He bears the name of that particular tribe over which he presides; and in their public meetings he is known by no other. His authority, though greater in some villages than in others, does not appear in any of them to be very considerable. If he is never disobeyed, it is because he knows how to set bounds to his commands. Every family has a right to name an assistant to the chief; and the several heads of families compose an assembly, or “council of the elders,” which is accustomed to deliberate upon all matters of public importance.* <169>
Each individual is allowed, in ordinary cases, to “take up the hatchet,” as it is called, or make war upon those who have offended him. Enterprises of moment, however, are seldom undertaken without the concurrence of the assembly. Each family has a jurisdiction over its own members.<170> But the members of different families are at liberty to settle their differences in what manner they please; and the chief, or council, interfere only as mediators, or as arbiters; unless upon the commission of those enormous and extraordinary crimes which excite the general indignation, and which, from a sudden impulse of resentment, are instantly punished with severity.* <171>
From the accounts which have been given of the wandering tribes of shepherds in different parts of the world, it would seem that their government is of the same nature, though the power of their leader is further advanced, according to the degrees of wealth which they enjoy. In proportion to the extent of his herds and flocks, the chief is exalted above all the other members of the tribe, and has more influence in directing their military operations, in establishing their forms of judicial procedure, and in regulating the several branches of their public administration. Thus the captain or leader of a tribe among the Hottentots, who have made but small progress in the pastoral life, and among the wild Arabs, who have seldom acquired considerable property, appears to have little more authority than among the savages of America.* The great riches, on the other hand, which<172> are frequently acquired by those numerous bands of shepherds inhabiting the vast country of Tartary, have rendered the influence of the chief proportionably extensive, and have bestowed upon him an almost unlimited power, which commonly remains in the same family, and is transmitted from father to son like a private inheritance.†
The ancient German nations, described by Caesar and Tacitus, may be ranked in a middle situation between these extremes; having probably had more wealth than the Hottentots, or most of the wild Arabs, and less than the greater part of the Tartars. While they remained in their own country, they were not altogether strangers to the cultivation of the ground; but they all led a wandering life, and seem to have had no idea of property in land; a sufficient proof that they drew their subsistence chiefly from their cattle, and regarded agriculture as only a secondary employment. Their<173> chiefs appear to have been either hereditary, or elected from those families who had been longest in the possession of opulent fortunes; but their military expeditions were frequently conducted by such inferior leaders, as happened to offer their service, and could persuade their companions to follow them. In time of peace, justice was administered by the respective chiefs, or leading men, of the different villages.* <174>
But when those barbarians had sallied forth from their native forests, and invaded the provinces of the Roman empire, they were soon led to a great improvement in their circumstances. The countries which they conquered had been cultivated and civilized under the Roman dominion; and the inhabitants, though generally in a declining state, were still acquainted with husbandry and a variety of arts. It was to be expected, therefore, that, while the Gothic invaders, during a long course of bloody wars, defaced the monuments of ancient literature, and wherever they came planted their own barbarous customs, they should, on the other hand, suddenly catch a degree of knowledge from the conquered people; and make a quicker progress in agriculture, and some of the coarser handicrafts connected with it, than they could have done in the natural course of things, had they been left to their own experience and observation. By their repeated victories, different heads of families, or barons, were enabled to seize great landed estates. They also acquired many captives in war, whom they reduced into servitude, and by whom they were put into a condition for managing their extensive possessions.<175>
After the settlement of those nations was completed, the members of every large family came to be composed of two sorts of people; the slaves, acquired for the most part by conquest; and the free men, descended from a common ancestor, and maintained out of his estate. The former were employed chiefly in cultivating their masters grounds: the latter supported the interest and dignity of their leader, and in their turn were protected by him.
The authority of the baron was extremely absolute over all the members of his family; because they entirely depended upon him for subsistence. He obliged his slaves to labour at pleasure, and allowed them such recompence only as he thought proper. His kindred were under the necessity of following his banner in all his military expeditions. He exercised over both a supreme jurisdiction, in punishing their offences, as well as in deciding their differences; and he subjected them to such regulations as he judged convenient, for removing disorders, or preventing future disputes.
These barons, though in a great measure independent, were early united in a larger society, under circumstances which gave rise to a very peculiar set of institutions. The effect of that union, whence proceeded the system of feudal government in Europe, will fall to be considered in a subsequent part of this discourse.<176>
The Authority of a Sovereign, and of Subordinate Officers, over a Society Composed of Different Tribes or Villages
[* ]“Illum defendere, tueri, sua quoque fortia facta gloriae ejus assignare, praecipuum sacramentum est. Principes pro victoria pugnant; comites pro principe.” Tacit. de mor. German. [[XIV.1.]]
[1. ]“Litis contestatio” was a sort of preliminary hearing with a judge in which the plaintiff and the defendant presented their assertions and the case was formulated between them, allowing the hearing to move forward toward a judgment. See Gaius Institutionem iuris civilis Commentarii III.180.
[* ]Obtorto collo. [[Literally, “with a twisted neck.”]]
[2. ]The defendant who refused to speak was put in a prone position and stones were piled on her/him until s/he testified, was crushed, or both.
[* ]This is particularly the case among the Hurons and Natchez. Journal historique d’une voyage de l’Amerique, par Charlevoix, let. 30. [[Bossu, Nouveaux voyage aux Indes orientales, tom. 1. p. 42.]]
[† ]Modern Universal History, vol. 16. p. 300.
[* ]“L’autorité des chefs s’étend proprement sur ceux de leur tribu, qu’ils considerent comme leurs enfans.”—“Leur pouvoir ne paroît avoir rein d’absolu, et il ne semble pas qu’ils ayent aucune voie de coaction pour se faire obeir en cas de résistance, on leur obéit cependant, et ils commandent avec autorité; leur commandement a force de prieres, et l’obeissance qu’on leur rend, paroît entierement libre.”—“Bien que les chefs n’ayent aucune marque de destinction et de superiorité, qu’on ne puisse pas le distinguer de la foule par les honeurs qu’on devroit leur rendre, à l’exception de quelques cas particuliers, on ne laisse pas d’avoir pour eux un certain respect; mais, c’est surtout dans les affaires publiques que leur dignité se soûtient. Les conseils s’assemblent par leurs ordres; ils se tiennent dans leurs cabanes, à moins qu’il n’y ait une cabane publique, destinée uniquement pour les conseils, et qui est comme une maison de ville; les affaires se traitent en leur nom; ils président à toutes sortes d’assemblées; ils ont une part considerable dans les festins, et dans les distributions generales.”—“De peur que le chefs n’usurpassent une autorité trop grande, et ne se rendissent trop absolus, on les a comme bridés, en leur donnant des adjoints, qui partagent avec eux la souveraineté de la terre, et se nomment Agoianders comme eux.”—“Après les Agoianders, vient le Sênat, composé des vieillards, ou des anciens, nommés dans leur langue Agokstenha: le nombre des ces senateurs n’est point dèterminê: chacun a droit d’entrer au conseil pour y donner son suffrage.” P. Lafitau moeurs de sauvages Ameriquains, 4to à Paris, 1724. tom. 1. p. 472–475. [[“The authority of the chiefs extends to their tribe proper, whom they consider as their children”;—“Their power does not appear to be absolute, and they do not seem to have any form of coercion at their disposal in case of resistance, yet they are obeyed, and they command with authority; their commands have the force of prayers, and the obedience they receive seems to be entirely free”—“Even though the chiefs have no marks of distinction or superiority, and one cannot distinguish them from others in a crowd by the honor due them, except in some particular cases, their people never cease to have a certain respect for them; but it is above all in public matters that their dignity is apparent. Councils are assembled by their orders; they are held in their cabins, unless there is a public cabin, intended solely for councils, and which is like a town hall; business is discussed in their name; they preside over all sorts of assemblies; they take considerable part in the feasts, and in the [general distributions.]”—“So as to prevent the chiefs from assuming too great an authority, of too absolute a kind, they have been partly thwarted by the attribution of adjuncts, who share with them the sovereignty over the earth, and are named Agoianders like them”; “After the Agoianders comes the Senate, composed of the old ones or ancients, known in their tongue as Agokstenha; the number of these senators is not fixed; each one can sit in the council to give his suffrage.”]]
[* ]Ibid. tom. 2. p. 167.—“La décision des affaires criminelles apartient immédiatement à ceux de la cabane des coupables, par rapport aux coupables même, quand quelqu’un d’une cabane en a tué un autre de la même cabane: comme on suppose qu’ils ont droit de vie et de mort les uns sur les autres, le village semble ne prendre nul interêt au disordre qui est arrivé—L’affaire change bien de nature, si le meurtre a été commis à l’egard d’une personne d’une cabane differente, d’une autre tribu, d’une autre village et encore plus d’une nation étrangere; car alors cette mort funeste interesse tout le public; chacun prend fait et cause pour le défunt, et contribue en quelque chose pour refaire l’esprit (c’est leur expression) aux parens aigris par la perte qu’ils viennent de faire; tous s’interessent aussi pour sauver la vie au criminel, et pour mettre les parens de celui-ci à couvert de la vengeance des autres, qui ne manqueroit pas d’éclater tôt ou tard si on avoit manquè à faire la satisfaction prescrite, dans des cas semblables, par leurs loix, et par leurs usages.”—“Il est des occasions où le crime est si noir, qu’on n’a pas tant d’egard pour garantir le meurtrier, et où le conseil, usant de son autorité suprême, prend soin d’en ordonner la punition.”—Ibid. tom. 1. p. 486, 487, 490, 495. [[“Decisions in criminal matters belong directly to those in the cabin of the guilty party, in relation to the guilty themselves, when someone in one cabin has killed another from the same cabin; as one assumes that they have the right of life and death over each other, the village does not seem to take much concern with such disorderly occurrences. The matter is quite different, however, if the murder victim was from a different cabin, tribe, village, or even more, from a foreign nation; then this untimely death is of concern to all; every one takes the side of the deceased party, and contributes something so as to ‘remake the mind’ (as they say) of the relatives who are embittered by their recent loss; all are also concerned with saving the life of the criminal, and protecting his relatives from the revenge of others, which would erupt without fail if satisfaction had not been given, according to their laws and customs.” “There are cases when the crime is so heinous that less care is taken to protect the murderer, and the council, by its supreme authority, is careful to order its punishment.”
[* ]“The Arabian tribes, though they have been for many ages under the Turkish yoke, are rarely interrupted, either in what may concern the course of justice, or in the succession to those few offices and dignities that belong properly to themselves.—Every Dou-war (i.e. village or encampment) therefore may be looked upon as a little principality, over which it is usual for that particular family, which is of the greatest name, substance, and reputation, to preside. However, this honour does not always lineally descend from the father to son; but, as it was among their predecessors the Numidians, when the heir is too young, or subject to any infirmity, then they make choice of the uncle, or some other relation, who, for prudence and wisdom, is judged to be the fittest for that employ. Yet, notwithstanding the despotic power which is lodged in this person, all grievances and disputes are accommodated in as amicable a manner as possible, by calling to his assistance one person or two out of each tent; and as the offended is considered as a brother, the sentence is always given on the favourable side; and even in the most enormous crimes, rarely any other punishment is inflicted than banishment.” Shaw’s Travels, chap. 4. p. 310.
[† ]See Kolben’s History of the Cape of Good Hope.—[[VII.2, 85–86. Histoire general des voyages. The first edition of the Ranks lists 5, 6, 9 as the location.—Montesquieu, Esprit de Loix, liv. 18. chap. 19.]]
[* ]“Reges ex nobilitate; duces ex virtute sumunt. Nec regibus infinita aut libera potestas; et duces exemplo potius quam imperio, si prompti, si conspicui: si ante aciem agant, admiratione praesunt.” Tacitus de mor. German. §. 7. [[“Kings they choose for their birth, generals for their valour. But the kings do not have unlimited power without restriction, while the generals lead more by example than command; if they are energetic and seen by all, if they are active in the front ranks, their men look up to them” (VII.1). Cited by Smith in the same context in Lectures on Jurisprudence, iv.14. The two passages from Tacitus which follow are discussed by Smith in iv.18, i.e., all within the same day’s lecture. “De minoribus rebus principes consultant, de majoribus omnes. Ita tamen, ut ea quoque, quorum penes plebem arbitrium est, apud principes pertractentur.—Ut turbae placuit, considunt armati. Silentium per sacerdotes, quibus tum et coercendi jus est, imperatur. Mox rex vel principes prout aetas cuique, prout nobilitas, prout decus bellorum, prout facundia est, audiuntur, auctoritate suadendi magis quam jubendi potestate.” Ibid. §. 11. “The leading men take counsel over minor issues, the major ones involve them all; yet even those decisions that lie with the commons are considered in advance by the elite. Unless something unexpected suddenly occurs, they gather on set days.—At the command of the priest there is silence, since at this time too they have the right of enforcement. Then, according to his age, birth, military distinction, and eloquence, the king or leading man is given a hearing, more through his influence in persuasion than his power in command” (XI.1, 3). “Licet apud concilium accusare quoque, et discrimen capitis intendere. Distinctio poenarum ex delicto: proditores et transfugas arboribus suspendunt. Ignavos, et imbelles, et corpore infames, coeno ac palude, injecta insuper crate, mergunt.—Eliguntur in iisdem consiliis et principes, qui jura per pagos vicosque reddunt. Centeni singulis ex plebe comites, consilium simul et auctoritas adsunt.” Ibid. §. 12. “The assembly is also the place to bring charges and initiate trials in capital cases. Penalties are classed according to offence: traitors and deserters they hang from trees, but the cowardly and unwarlike and those who disgrace their bodies they submerge in the mud of a marsh, with a wicker frame thrown over it.—Likewise in these assemblies are chosen the leaders who administer justice in the cantons and hamlets; each has a hundred associates from the commons, who provide influence as well as advice.” Rives trans.