MUTUAL AID AMONG THE BARBARIANS
The great migrations. New organization rendered necessary. The village
community. Communal work. Judicial procedure. Inter-tribal law.
Illustrations from the life of our contemporaries. Buryates. Kabyles.
Caucasian mountaineers. African stems.
It is not possible to study primitive mankind without being deeply
impressed by the sociability it has displayed since its very first steps
in life. Traces of human societies are found in the relics of both the
oldest and the later stone age; and, when we come to observe the savages
whose manners of life are still those of neolithic man, we find them
closely bound together by an extremely ancient clan organization which
enables them to combine their individually weak forces, to enjoy life in
common, and to progress. Man is no exception in nature. He also is
subject to the great principle of Mutual Aid which grants the best
chances of survival to those who best support each other in the struggle
for life. These were the conclusions arrived at in the previous
chapters.
However, as soon as we come to a higher stage of civilization, and refer
to history which already has something to say about that stage, we are
bewildered by the struggles and conflicts which it reveals. The old
bonds seem entirely to be broken. Stems are seen to fight against stems,
tribes against tribes, individuals against individuals; and out of this
chaotic contest of hostile forces, mankind issues divided into castes,
enslaved to despots, separated into States always ready to wage war
against each other. And, with this history of mankind in his hands, the
pessimist philosopher triumphantly concludes that warfare and oppression
are the very essence of human nature; that the warlike and predatory
instincts of man can only be restrained within certain limits by a
strong authority which enforces peace and thus gives an opportunity to
the few and nobler ones to prepare a better life for humanity in times
to come.
And yet, as soon as the every-day life of man during the historical
period is submitted to a closer analysis and so it has been, of late, by
many patient students of very early institutions--it appears at once
under quite a different aspect. Leaving aside the preconceived ideas of
most historians and their pronounced predilection for the dramatic
aspects of history, we see that the very documents they habitually
peruse are such as to exaggerate the part of human life given to
struggles and to underrate its peaceful moods. The bright and sunny days
are lost sight of in the gales and storms. Even in our own time, the
cumbersome records which we prepare for the future historian, in our
Press, our law courts, our Government offices, and even in our fiction
and poetry, suffer from the same one-sidedness. They hand down to
posterity the most minute descriptions of every war, every battle and
skirmish, every contest and act of violence, every kind of individual
suffering; but they hardly bear any trace of the countless acts of
mutual support and devotion which every one of us knows from his own
experience; they hardly take notice of what makes the very essence of
our daily life--our social instincts and manners. No wonder, then, if
the records of the past were so imperfect. The annalists of old never
failed to chronicle the petty wars and calamities which harassed their
contemporaries; but they paid no attention whatever to the life of the
masses, although the masses chiefly used to toil peacefully while the
few indulged in fighting. The epic poems, the inscriptions on monuments,
the treaties of peace--nearly all historical documents bear the same
character; they deal with breaches of peace, not with peace itself. So
that the best-intentioned historian unconsciously draws a distorted
picture of the times he endeavours to depict; and, to restore the real
proportion between conflict and union, we are now bound to enter into a
minute analysis of thousands of small facts and faint indications
accidentally preserved in the relics of the past; to interpret them with
the aid of comparative ethnology; and, after having heard so much about
what used to divide men, to reconstruct stone by stone the institutions
which used to unite them.
Ere long history will have to be re-written on new lines, so as to take
into account these two currents of human life and to appreciate the part
played by each of them in evolution. But in the meantime we may avail
ourselves of the immense preparatory work recently done towards
restoring the leading features of the second current, so much neglected.
From the better-known periods of history we may take some illustrations
of the life of the masses, in order to indicate the part played by
mutual support during those periods; and, in so doing, we may dispense
(for the sake of brevity) from going as far back as the Egyptian, or
even the Greek and Roman antiquity. For, in fact, the evolution of
mankind has not had the character of one unbroken series. Several times
civilization came to an end in one given region, with one given race,
and began anew elsewhere, among other races. But at each fresh start it
began again with the same clan institutions which we have seen among the
savages. So that if we take the last start of our own civilization, when
it began afresh in the first centuries of our era, among those whom the
Romans called the "barbarians," we shall have the whole scale of
evolution, beginning with the gentes and ending in the institutions of
our own time. To these illustrations the following pages will be
devoted.
Men of science have not yet settled upon the causes which some two
thousand years ago drove whole nations from Asia into Europe and
resulted in the great migrations of barbarians which put an end to the
West Roman Empire. One cause, however, is naturally suggested to the
geographer as he contemplates the ruins of populous cities in the
deserts of Central Asia, or follows the old beds of rivers now
disappeared and the wide outlines of lakes now reduced to the size of
mere ponds. It is desiccation: a quite recent desiccation, continued
still at a speed which we formerly were not prepared to admit.(1)
Against it man was powerless. When the inhabitants of North-West
Mongolia and East Turkestan saw that water was abandoning them, they had
no course open to them but to move down the broad valleys leading to the
lowlands, and to thrust westwards the inhabitants of the plains.(2)
Stems after stems were thus thrown into Europe, compelling other stems
to move and to remove for centuries in succession, westwards and
eastwards, in search of new and more or less permanent abodes. Races
were mixing with races during those migrations, aborigines with
immigrants, Aryans with Ural-Altayans; and it would have been no wonder
if the social institutions which had kept them together in their mother
countries had been totally wrecked during the stratification of races
which took place in Europe and Asia. But they were not wrecked; they
simply underwent the modification which was required by the new
conditions of life.
The Teutons, the Celts, the Scandinavians, the Slavonians, and others,
when they first came in contact with the Romans, were in a transitional
state of social organization. The clan unions, based upon a real or
supposed common origin, had kept them together for many thousands of
years in succession. But these unions could answer their purpose so long
only as there were no separate families within the gens or clan itself.
However, for causes already mentioned, the separate patriarchal family
had slowly but steadily developed within the clans, and in the long run
it evidently meant the individual accumulation of wealth and power, and
the hereditary transmission of both. The frequent migrations of the
barbarians and the ensuing wars only hastened the division of the gentes
into separate families, while the dispersing of stems and their mingling
with strangers offered singular facilities for the ultimate
disintegration of those unions which were based upon kinship. The
barbarians thus stood in a position of either seeing their clans
dissolved into loose aggregations of families, of which the wealthiest,
especially if combining sacerdotal functions or military repute with
wealth, would have succeeded in imposing their authority upon the
others; or of finding out some new form of organization based upon some
new principle.
Many stems had no force to resist disintegration: they broke up and were
lost for history. But the more vigorous ones did not disintegrate. They
came out of the ordeal with a new organization--the village
community--which kept them together for the next fifteen centuries or
more. The conception of a common territory, appropriated or protected by
common efforts, was elaborated, and it took the place of the vanishing
conceptions of common descent. The common gods gradually lost their
character of ancestors and were endowed with a local territorial
character. They became the gods or saints of a given locality; "the
land" was identified with its inhabitants. Territorial unions grew up
instead of the consanguine unions of old, and this new organization
evidently offered many advantages under the given circumstances. It
recognized the independence of the family and even emphasized it, the
village community disclaiming all rights of interference in what was
going on within the family enclosure; it gave much more freedom to
personal initiative; it was not hostile in principle to union between
men of different descent, and it maintained at the same time the
necessary cohesion of action and thought, while it was strong enough to
oppose the dominative tendencies of the minorities of wizards, priests,
and professional or distinguished warriors. Consequently it became the
primary cell of future organization, and with many nations the village
community has retained this character until now.
It is now known, and scarcely contested, that the village community was
not a specific feature of the Slavonians, nor even of the ancient
Teutons. It prevailed in England during both the Saxon and Norman times,
and partially survived till the last century;(3) it was at the bottom of
the social organization of old Scotland, old Ireland, and old Wales. In
France, the communal possession and the communal allotment of arable
land by the village folkmote persisted from the first centuries of our
era till the times of Turgot, who found the folkmotes "too noisy" and
therefore abolished them. It survived Roman rule in Italy, and revived
after the fall of the Roman Empire. It was the rule with the
Scandinavians, the Slavonians, the Finns (in the pittaya, as also,
probably, the kihla-kunta), the Coures, and the lives. The village
community in India--past and present, Aryan and non-Aryan--is well known
through the epoch-making works of Sir Henry Maine; and Elphinstone has
described it among the Afghans. We also find it in the Mongolian oulous,
the Kabyle thaddart, the Javanese dessa, the Malayan kota or tofa, and
under a variety of names in Abyssinia, the Soudan, in the interior of
Africa, with natives of both Americas, with all the small and large
tribes of the Pacific archipelagoes. In short, we do not know one single
human race or one single nation which has not had its period of village
communities. This fact alone disposes of the theory according to which
the village community in Europe would have been a servile growth. It is
anterior to serfdom, and even servile submission was powerless to break
it. It was a universal phase of evolution, a natural outcome of the clan
organization, with all those stems, at least, which have played, or play
still, some part in history.(4)
It was a natural growth, and an absolute uniformity in its structure was
therefore not possible. As a rule, it was a union between families
considered as of common descent and owning a certain territory in
common. But with some stems, and under certain circumstances, the
families used to grow very numerous before they threw off new buds in
the shape of new families; five, six, or seven generations continued to
live under the same roof, or within the same enclosure, owning their
joint household and cattle in common, and taking their meals at the
common hearth. They kept in such case to what ethnology knows as the
"joint family," or the "undivided household," which we still see all
over China, in India, in the South Slavonian zadruga, and occasionally
find in Africa, in America, in Denmark, in North Russia, and West
France.(5) With other stems, or in other circumstances, not yet well
specified, the families did not attain the same proportions; the
grandsons, and occasionally the sons, left the household as soon as they
were married, and each of them started a new cell of his own. But, joint
or not, clustered together or scattered in the woods, the families
remained united into village communities; several villages were grouped
into tribes; and the tribes joined into confederations. Such was the
social organization which developed among the so-called "barbarians,"
when they began to settle more or less permanently in Europe.
A very long evolution was required before the gentes, or clans,
recognized the separate existence of a patriarchal family in a separate
hut; but even after that had been recognized, the clan, as a rule, knew
no personal inheritance of property. The few things which might have
belonged personally to the individual were either destroyed on his grave
or buried with him. The village community, on the contrary, fully
recognized the private accumulation of wealth within the family and its
hereditary transmission. But wealth was conceived exclusively in the
shape of movable property, including cattle, implements, arms, and the
dwelling house which--"like all things that can be destroyed by
fire"--belonged to the same category(6). As to private property in land,
the village community did not, and could not, recognize anything of the
kind, and, as a rule, it does not recognize it now. The land was the
common property of the tribe, or of the whole stem, and the village
community itself owned its part of the tribal territory so long only as
the tribe did not claim a re-distribution of the village allotments. The
clearing of the woods and the breaking of the prairies being mostly done
by the communities or, at least, by the joint work of several
families--always with the consent of the community--the cleared plots
were held by each family for a term of four, twelve, or twenty years,
after which term they were treated as parts of the arable land owned in
common. Private property, or possession "for ever" was as incompatible,
with the very principles and the religious conceptions of the village
community as it was with the principles of the gens; so that a long
influence of the Roman law and the Christian Church, which soon accepted
the Roman principles, were required to accustom the barbarians to the
idea of private property in land being possible.(7) And yet, even when
such property, or possession for an unlimited time, was recognized, the
owner of a separate estate remained a co-proprietor in the waste lands,
forests, and grazing-grounds. Moreover, we continually see, especially
in the history of Russia, that when a few families, acting separately,
had taken possession of some land belonging to tribes which were treated
as strangers, they very soon united together, and constituted a village
community which in the third or fourth generation began to profess a
community of origin.
A whole series of institutions, partly inherited from the clan period,
have developed from that basis of common ownership of land during the
long succession of centuries which was required to bring the barbarians
under the dominion of States organized upon the Roman or Byzantine
pattern. The village community was not only a union for guaranteeing to
each one his fair share in the common land, but also a union for common
culture, for mutual support in all possible forms, for protection from
violence, and for a further development of knowledge, national bonds,
and moral conceptions; and every change in the judicial, military,
educational, or economical manners had to be decided at the folkmotes of
the village, the tribe, or the confederation. The community being a
continuation of the gens, it inherited all its functions. It was the
universitas, the mir--a world in itself.
Common hunting, common fishing, and common culture of the orchards or
the plantations of fruit trees was the rule with the old gentes. Common
agriculture became the rule in the barbarian village communities. True,
that direct testimony to this effect is scarce, and in the literature of
antiquity we only have the passages of Diodorus and Julius Caesar
relating to the inhabitants of the Lipari Islands, one of the
Celt-Iberian tribes, and the Sueves. But there is no lack of evidence to
prove that common agriculture was practised among some Teuton tribes,
the Franks, and the old Scotch, Irish, and Welsh.(8) As to the later
survivals of the same practice, they simply are countless. Even in
perfectly Romanized France, common culture was habitual some five and
twenty years ago in the Morbihan (Brittany).(9) The old Welsh cyvar, or
joint team, as well as the common culture of the land allotted to the
use of the village sanctuary are quite common among the tribes of
Caucasus the least touched by civilization,(10) and like facts are of
daily occurrence among the Russian peasants. Moreover, it is well known
that many tribes of Brazil, Central America, and Mexico used to
cultivate their fields in common, and that the same habit is widely
spread among some Malayans, in New Caledonia, with several Negro stems,
and so on.(11) In short, communal culture is so habitual with many
Aryan, Ural-Altayan, Mongolian, Negro, Red Indian, Malayan, and
Melanesian stems that we must consider it as a universal--though not as
the only possible--form of primitive agriculture.(12)
Communal cultivation does not, however, imply by necessity communal
consumption. Already under the clan organization we often see that when
the boats laden with fruits or fish return to the village, the food they
bring in is divided among the huts and the "long houses" inhabited by
either several families or the youth, and is cooked separately at each
separate hearth. The habit of taking meals in a narrower circle of
relatives or associates thus prevails at an early period of clan life.
It became the rule in the village community. Even the food grown in
common was usually divided between the households after part of it had
been laid in store for communal use. However, the tradition of communal
meals was piously kept alive; every available opportunity, such as the
commemoration of the ancestors, the religious festivals, the beginning
and the end of field work, the births, the marriages, and the funerals,
being seized upon to bring the community to a common meal. Even now this
habit, well known in this country as the "harvest supper," is the last
to disappear. On the other hand, even when the fields had long since
ceased to be tilled and sown in common, a variety of agricultural work
continued, and continues still, to be performed by the community. Some
part of the communal land is still cultivated in many cases in common,
either for the use of the destitute, or for refilling the communal
stores, or for using the produce at the religious festivals. The
irrigation canals are digged and repaired in common. The communal
meadows are mown by the community; and the sight of a Russian commune
mowing a meadow--the men rivalling each other in their advance with the
scythe, while the women turn the grass over and throw it up into
heaps--is one of the most inspiring sights; it shows what human work
might be and ought to be. The hay, in such case, is divided among the
separate households, and it is evident that no one has the right of
taking hay from a neighbour's stack without his permission; but the
limitation of this last rule among the Caucasian Ossetes is most
noteworthy. When the cuckoo cries and announces that spring is coming,
and that the meadows will soon be clothed again with grass, every one in
need has the right of taking from a neighbour's stack the hay he wants
for his cattle.(13) The old communal rights are thus re-asserted, as if
to prove how contrary unbridled individualism is to human nature.
When the European traveller lands in some small island of the Pacific,
and, seeing at a distance a grove of palm trees, walks in that
direction, he is astonished to discover that the little villages are
connected by roads paved with big stones, quite comfortable for the
unshod natives, and very similar to the "old roads" of the Swiss
mountains. Such roads were traced by the "barbarians" all over Europe,
and one must have travelled in wild, thinly-peopled countries, far away
from the chief lines of communication, to realize in full the immense
work that must have been performed by the barbarian communities in order
to conquer the woody and marshy wilderness which Europe was some two
thousand years ago. Isolated families, having no tools, and weak as they
were, could not have conquered it; the wilderness would have overpowered
them. Village communities alone, working in common, could master the
wild forests, the sinking marshes, and the endless steppes. The rough
roads, the ferries, the wooden bridges taken away in the winter and
rebuilt after the spring flood was over, the fences and the palisaded
walls of the villages, the earthen forts and the small towers with which
the territory was dottedall these were the work of the barbarian
communities. And when a community grew numerous it used to throw off a
new bud. A new community arose at a distance, thus step by step bringing
the woods and the steppes under the dominion of man. The whole making of
European nations was such a budding of the village communities. Even
now-a-days the Russian peasants, if they are not quite broken down by
misery, migrate in communities, and they till the soil and build the
houses in com mon when they settle on the banks of the Amur, or in
Manitoba. And even the English, when they first began to colonize
America, used to return to the old system; they grouped into village
communities.(14)
The village community was the chief arm of the barbarians in their hard
struggle against a hostile nature. It also was the bond they opposed to
oppression by the cunningest and the strongest which so easily might
have developed during those disturbed times. The imaginary
barbarian--the man who fights and kills at his mere caprice--existed no
more than the "bloodthirsty" savage. The real barbarian was living, on
the contrary, under a wide series of institutions, imbued with
considerations as to what may be useful or noxious to his tribe or
confederation, and these institutions were piously handed down from
generation to generation in verses and songs, in proverbs or triads, in
sentences and instructions. The more we study them the more we recognize
the narrow bonds which united men in their villages. Every quarrel
arising between two individuals was treated as a communal affair--even
the offensive words that might have been uttered during a quarrel being
considered as an offence to the community and its ancestors. They had to
be repaired by amends made both to the individual and the community;(15)
and if a quarrel ended in a fight and wounds, the man who stood by and
did not interpose was treated as if he himself had inflicted the
wounds.(16) The judicial procedure was imbued with the same spirit.
Every dispute was brought first before mediators or arbiters, and it
mostly ended with them, the arbiters playing a very important part in
barbarian society. But if the case was too grave to be settled in this
way, it came before the folkmote, which was bound "to find the
sentence," and pronounced it in a conditional form; that is, "such
compensation was due, if the wrong be proved," and the wrong had to be
proved or disclaimed by six or twelve persons confirming or denying the
fact by oath; ordeal being resorted to in case of contradiction between
the two sets of jurors. Such procedure, which remained in force for more
than two thousand years in succession, speaks volumes for itself; it
shows how close were the bonds between all members of the community.
Moreover, there was no other authority to enforce the decisions of the
folkmote besides its own moral authority. The only possible menace was
that the community might declare the rebel an outlaw, but even this
menace was reciprocal. A man discontented with the folkmote could
declare that he would abandon the tribe and go over to another tribe--a
most dreadful menace, as it was sure to bring all kinds of misfortunes
upon a tribe that might have been unfair to one of its members.(17) A
rebellion against a right decision of the customary law was simply
"inconceivable," as Henry Maine has so well said, because "law,
morality, and fact" could not be separated from each other in those
times.(18) The moral authority of the commune was so great that even at
a much later epoch, when the village communities fell into submission to
the feudal lord, they maintained their judicial powers; they only
permitted the lord, or his deputy, to "find" the above conditional
sentence in accordance with the customary law he had sworn to follow,
and to levy for himself the fine (the fred) due to the commune. But for
a long time, the lord himself, if he remained a co-proprietor in the
waste land of the commune, submitted in communal affairs to its
decisions. Noble or ecclesiastic, he had to submit to the folkmote--Wer
daselbst Wasser und Weid genusst, muss gehorsam sein--"Who enjoys here
the right of water and pasture must obey"--was the old saying. Even when
the peasants became serfs under the lord, he was bound to appear before
the folkmote when they summoned him.(19)
In their conceptions of justice the barbarians evidently did not much
differ from the savages. They also maintained the idea that a murder
must be followed by putting the murderer to death; that wounds had to be
punished by equal wounds, and that the wronged family was bound to
fulfil the sentence of the customary law. This was a holy duty, a duty
towards the ancestors, which had to be accomplished in broad daylight,
never in secrecy, and rendered widely known. Therefore the most inspired
passages of the sagas and epic poetry altogether are those which glorify
what was supposed to be justice. The gods themselves joined in aiding
it. However, the predominant feature of barbarian justice is, on the one
hand, to limit the numbers of persons who may be involved in a feud,
and, on the other hand, to extirpate the brutal idea of blood for blood
and wounds for wounds, by substituting for it the system of
compensation. The barbarian codes which were collections of common law
rules written down for the use of judges--"first permitted, then
encouraged, and at last enforced," compensation instead of revenge.(20)
The compensation has, however, been totally misunderstood by those who
represented it as a fine, and as a sort of carte blanche given to the
rich man to do whatever he liked. The compensation money (wergeld),
which was quite different from the fine or fred,(21) was habitually so
high for all kinds of active offences that it certainly was no
encouragement for such offences. In case of a murder it usually exceeded
all the possible fortune of the murderer "Eighteen times eighteen cows"
is the compensation with the Ossetes who do not know how to reckon above
eighteen, while with the African tribes it attains 800 cows or 100
camels with their young, or 416 sheep in the poorer tribes.(22) In the
great majority of cases, the compensation money could not be paid at
all, so that the murderer had no issue but to induce the wronged family,
by repentance, to adopt him. Even now, in the Caucasus, when feuds come
to an end, the offender touches with his lips the breast of the oldest
woman of the tribe, and becomes a "milk-brother" to all men of the
wronged family.(23) With several African tribes he must give his
daughter, or sister, in marriage to some one of the family; with other
tribes he is bound to marry the woman whom he has made a widow; and in
all cases he becomes a member of the family, whose opinion is taken in
all important family matters.(24)
Far from acting with disregard to human life, the barbarians, moreover,
knew nothing of the horrid punishments introduced at a later epoch by
the laic and canonic laws under Roman and Byzantine influence. For, if
the Saxon code admitted the death penalty rather freely even in cases of
incendiarism and armed robbery, the other barbarian codes pronounced it
exclusively in cases of betrayal of one's kin, and sacrilege against the
community's gods, as the only means to appease the gods.
All this, as seen is very far from the supposed "moral dissoluteness" of
the barbarians. On the contrary, we cannot but admire the deeply moral
principles elaborated within the early village communities which found
their expression in Welsh triads, in legends about King Arthur, in
Brehon commentaries,(25) in old German legends and so on, or find still
their expression in the sayings of the modern barbarians. In his
introduction to The Story of Burnt Njal, George Dasent very justly sums
up as follows the qualities of a Northman, as they appear in the
sagas:--
To do what lay before him openly and like a man, without fear of
either foes, fiends, or fate; ... to be free and daring in all his
deeds; to be gentle and generous to his friends and kinsmen; to be
stern and grim to his foes [those who are under the lex talionis],
but even towards them to fulfil all bounden duties.... To be no
truce-breaker, nor tale-bearer, nor backbiter. To utter nothing
against any man that he would not dare to tell him to his face. To
turn no man from his door who sought food or shelter, even though
he were a foe.(26)
The same or still better principles permeate the Welsh epic poetry and
triads. To act "according to the nature of mildness and the principles
of equity," without regard to the foes or to the friends, and "to repair
the wrong," are the highest duties of man; "evil is death, good is
life," exclaims the poet legislator.(27) "The World would be fool, if
agreements made on lips were not honourable"--the Brehon law says. And
the humble Shamanist Mordovian, after having praised the same qualities,
will add, moreover, in his principles of customary law, that "among
neighbours the cow and the milking-jar are in common;" that, "the cow
must be milked for yourself and him who may ask milk;" that "the body of
a child reddens from the stroke, but the face of him who strikes reddens
from shame;"(28) and so on. Many pages might be filled with like
principles expressed and followed by the "barbarians."
One feature more of the old village communities deserves a special
mention. It is the gradual extension of the circle of men embraced by
the feelings of solidarity. Not only the tribes federated into stems,
but the stems as well, even though of different origin, joined together
in confederations. Some unions were so close that, for instance, the
Vandals, after part of their confederation had left for the Rhine, and
thence went over to Spain and Africa, respected for forty consecutive
years the landmarks and the abandoned villages of their confederates,
and did not take possession of them until they had ascertained through
envoys that their confederates did not intend to return. With other
barbarians, the soil was cultivated by one part of the stem, while the
other part fought on or beyond the frontiers of the common territory. As
to the leagues between several stems, they were quite habitual. The
Sicambers united with the Cherusques and the Sueves, the Quades with the
Sarmates; the Sarmates with the Alans, the Carpes, and the Huns. Later
on, we also see the conception of nations gradually developing in
Europe, long before anything like a State had grown in any part of the
continent occupied by the barbarians. These nations--for it is
impossible to refuse the name of a nation to the Merovingian France, or
to the Russia of the eleventh and twelfth century--were nevertheless
kept together by nothing else but a community of language, and a tacit
agreement of the small republics to take their dukes from none but one
special family.
Wars were certainly unavoidable; migration means war; but Sir Henry
Maine has already fully proved in his remarkable study of the tribal
origin of International Law, that "Man has never been so ferocious or so
stupid as to submit to such an evil as war without some kind of effort
to prevent it," and he has shown how exceedingly great is "the number of
ancient institutions which bear the marks of a design to stand in the
way of war, or to provide an alternative to it."(29) In reality, man is
so far from the warlike being he is supposed to be, that when the
barbarians had once settled they so rapidly lost the very habits of
warfare that very soon they were compelled to keep special dukes
followed by special scholae or bands of warriors, in order to protect
them from possible intruders. They preferred peaceful toil to war, the
very peacefulness of man being the cause of the specialization of the
warrior's trade, which specialization resulted later on in serfdom and
in all the wars of the "States period" of human history.
History finds great difficulties in restoring to life the institutions
of the barbarians. At every step the historian meets with some faint
indication which he is unable to explain with the aid of his own
documents only. But a broad light is thrown on the past as soon as we
refer to the institutions of the very numerous tribes which are still
living under a social organization almost identical with that of our
barbarian ancestors. Here we simply have the difficulty of choice,
because the islands of the Pacific, the steppes of Asia, and the
tablelands of Africa are real historical museums containing specimens of
all possible intermediate stages which mankind has lived through, when
passing from the savage gentes up to the States' organization. Let us,
then, examine a few of those specimens.
If we take the village communities of the Mongol Buryates, especially
those of the Kudinsk Steppe on the upper Lena which have better escaped
Russian influence, we have fair representatives of barbarians in a
transitional state, between cattle-breeding and agriculture.(30) These
Buryates are still living in "joint families"; that is, although each
son, when he is married, goes to live in a separate hut, the huts of at
least three generations remain within the same enclosure, and the joint
family work in common in their fields, and own in common their joint
households and their cattle, as well as their "calves' grounds" (small
fenced patches of soil kept under soft grass for the rearing of calves).
As a rule, the meals are taken separately in each hut; but when meat is
roasted, all the twenty to sixty members of the joint household feast
together. Several joint households which live in a cluster, as well as
several smaller families settled in the same village--mostly debris of
joint households accidentally broken up--make the oulous, or the village
community; several oulouses make a tribe; and the forty-six tribes, or
clans, of the Kudinsk Steppe are united into one confederation. Smaller
and closer confederations are entered into, as necessity arises for
special wants, by several tribes. They know no private property in
land--the land being held in common by the oulous, or rather by the
confederation, and if it becomes necessary, the territory is re-allotted
between the different oulouses at a folkmote of the tribe, and between
the forty-six tribes at a folkmote of the confederation. It is worthy of
note that the same organization prevails among all the 250,000 Buryates
of East Siberia, although they have been for three centuries under
Russian rule, and are well acquainted with Russian institutions.
With all that, inequalities of fortune rapidly develop among the
Buryates, especially since the Russian Government is giving an
exaggerated importance to their elected taishas (princes), whom it
considers as responsible tax-collectors and representatives of the
confederations in their administrative and even commercial relations
with the Russians. The channels for the enrichment of the few are thus
many, while the impoverishment of the great number goes hand in hand,
through the appropriation of the Buryate lands by the Russians. But it
is a habit with the Buryates, especially those of Kudinsk--and habit is
more than law--that if a family has lost its cattle, the richer families
give it some cows and horses that it may recover. As to the destitute
man who has no family, he takes his meals in the huts of his congeners;
he enters a hut, takes--by right, not for charity--his seat by the fire,
and shares the meal which always is scrupulously divided into equal
parts; he sleeps where he has taken his evening meal. Altogether, the
Russian conquerors of Siberia were so much struck by the communistic
practices of the Buryates, that they gave them the name of
Bratskiye--"the Brotherly Ones"--and reported to Moscow. "With them
everything is in common; whatever they have is shared in common." Even
now, when the Lena Buryates sell their wheat, or send some of their
cattle to be sold to a Russian butcher, the families of the oulous, or
the tribe, put their wheat and cattle together, and sell it as a whole.
Each oulous has, moreover, its grain store for loans in case of need,
its communal baking oven (the four banal of the old French communities),
and its blacksmith, who, like the blacksmith of the Indian
communities,(31) being a member of the community, is never paid for his
work within the community. He must make it for nothing, and if he
utilizes his spare time for fabricating the small plates of chiselled
and silvered iron which are used in Buryate land for the decoration of
dress, he may occasionally sell them to a woman from another clan, but
to the women of his own clan the attire is presented as a gift. Selling
and buying cannot take place within the community, and the rule is so
severe that when a richer family hires a labourer the labourer must be
taken from another clan or from among the Russians. This habit is
evidently not specific to the Buryates; it is so widely spread among the
modern barbarians, Aryan and Ural-Altayan, that it must have been
universal among our ancestors.
The feeling of union within the confederation is kept alive by the
common interests of the tribes, their folkmotes, and the festivities
which are usually kept in connection with the folkmotes. The same
feeling is, however, maintained by another institution, the aba, or
common hunt, which is a reminiscence of a very remote past. Every
autumn, the forty-six clans of Kudinsk come together for such a hunt,
the produce of which is divided among all the families. Moreover,
national abas, to assert the unity of the whole Buryate nation, are
convoked from time to time. In such cases, all Buryate clans which are
scattered for hundreds of miles west and east of Lake Baikal, are bound
to send their delegate hunters. Thousands of men come together, each one
bringing provisions for a whole month. Every one's share must be equal
to all the others, and therefore, before being put together, they are
weighed by an elected elder (always "with the hand": scales would be a
profanation of the old custom). After that the hunters divide into bands
of twenty, and the parties go hunting according to a well-settled plan.
In such abas the entire Buryate nation revives its epic traditions of a
time when it was united in a powerful league. Let me add that such
communal hunts are quite usual with the Red Indians and the Chinese on
the banks of the Usuri (the kada).(32)
With the Kabyles, whose manners of life have been so well described by
two French explorers,(33) we have barbarians still more advanced in
agriculture. Their fields, irrigated and manured, are well attended to,
and in the hilly tracts every available plot of land is cultivated by
the spade. The Kabyles have known many vicissitudes in their history;
they have followed for sometime the Mussulman law of inheritance, but,
being adverse to it, they have returned, 150 years ago, to the tribal
customary law of old. Accordingly, their land-tenure is of a mixed
character, and private property in land exists side by side with
communal possession. Still, the basis of their present organization is
the village community, the thaddart, which usually consists of several
joint families (kharoubas), claiming a community of origin, as well as
of smaller families of strangers. Several villages are grouped into
clans or tribes (arch); several tribes make the confederation
(thak'ebilt); and several confederations may occasionally enter into a
league, chiefly for purposes of armed defence.
The Kabyles know no authority whatever besides that of the djemmaa, or
folkmote of the village community. All men of age take part in it, in
the open air, or in a special building provided with stone seats. And
the decisions of the djemmaa are evidently taken at unanimity: that is,
the discussions continue until all present agree to accept, or to submit
to, some decision. There being no authority in a village community to
impose a decision, this system has been practised by mankind wherever
there have been village communities, and it is practised still wherever
they continue to exist, i.e. by several hundred million men all over the
world. The djemmaa nominates its executive--the elder, the scribe, and
the treasurer; it assesses its own taxes; and it manages the repartition
of the common lands, as well as all kinds of works of public utility. A
great deal of work is done in common: the roads, the mosques, the
fountains, the irrigation canals, the towers erected for protection from
robbers, the fences, and so on, are built by the village community;
while the high-roads, the larger mosques, and the great market-places
are the work of the tribe. Many traces of common culture continue to
exist, and the houses continue to be built by, or with the aid of, all
men and women of the village. Altogether, the "aids" are of daily
occurrence, and are continually called in for the cultivation of the
fields, for harvesting, and so on. As to the skilled work, each
community has its blacksmith, who enjoys his part of the communal land,
and works for the community; when the tilling season approaches he
visits every house, and repairs the tools and the ploughs, without
expecting any pay, while the making of new ploughs is considered as a
pious work which can by no means be recompensed in money, or by any
other form of salary.
As the Kabyles already have private property, they evidently have both
rich and poor among them. But like all people who closely live together,
and know how poverty begins, they consider it as an accident which may
visit every one. "Don't say that you will never wear the beggar's bag,
nor go to prison," is a proverb of the Russian peasants; the Kabyles
practise it, and no difference can be detected in the external behaviour
between rich and poor; when the poor convokes an "aid," the rich man
works in his field, just as the poor man does it reciprocally in his
turn.(34) Moreover, the djemmaas set aside certain gardens and fields,
sometimes cultivated in common, for the use of the poorest members. Many
like customs continue to exist. As the poorer families would not be able
to buy meat, meat is regularly bought with the money of the fines, or
the gifts to the djemmaa, or the payments for the use of the communal
olive-oil basins, and it is distributed in equal parts among those who
cannot afford buying meat themselves. And when a sheep or a bullock is
killed by a family for its own use on a day which is not a market day,
the fact is announced in the streets by the village crier, in order that
sick people and pregnant women may take of it what they want. Mutual
support permeates the life of the Kabyles, and if one of them, during a
journey abroad, meets with another Kabyle in need, he is bound to come
to his aid, even at the risk of his own fortune and life; if this has
not been done, the djemmaa of the man who has suffered from such neglect
may lodge a complaint, and the djemmaa of the selfish man will at once
make good the loss. We thus come across a custom which is familiar to
the students of the mediaeval merchant guilds. Every stranger who enters
a Kabyle village has right to housing in the winter, and his horses can
always graze on the communal lands for twenty-four hours. But in case of
need he can reckon upon an almost unlimited support. Thus, during the
famine of 1867-68, the Kabyles received and fed every one who sought
refuge in their villages, without distinction of origin. In the district
of Dellys, no less than 12,000 people who came from all parts of
Algeria, and even from Morocco, were fed in this way. While people died
from starvation all over Algeria, there was not one single case of death
due to this cause on Kabylian soil. The djemmaas, depriving themselves
of necessaries, organized relief, without ever asking any aid from the
Government, or uttering the slightest complaint; they considered it as a
natural duty. And while among the European settlers all kind of police
measures were taken to prevent thefts and disorder resulting from such
an influx of strangers, nothing of the kind was required on the Kabyles'
territory: the djemmaas needed neither aid nor protection from
without.(35)
I can only cursorily mention two other most interesting features of
Kabyle life; namely, the anaya, or protection granted to wells, canals,
mosques, marketplaces, some roads, and so on, in case of war, and the
cofs. In the anaya we have a series of institutions both for diminishing
the evils of war and for preventing conflicts. Thus the market-place is
anaya, especially if it stands on a frontier and brings Kabyles and
strangers together; no one dares disturb peace in the market, and if a
disturbance arises, it is quelled at once by the strangers who have
gathered in the market town. The road upon which the women go from the
village to the fountain also is anaya in case of war; and so on. As to
the cof it is a widely spread form of association, having some
characters of the mediaeval Burgschaften or Gegilden, as well as of
societies both for mutual protection and for various
purposes--intellectual, political, and emotional--which cannot be
satisfied by the territorial organization of the village, the clan, and
the con federation. The cof knows no territorial limits; it recruits its
members in various villages, even among strangers; and it protects them
in all possible eventualities of life. Altogether, it is an attempt at
supplementing the territorial grouping by an extra-territorial grouping
intended to give an expression to mutual affinities of all kinds across
the frontiers. The free international association of individual tastes
and ideas, which we consider as one of the best features of our own
life, has thus its origin in barbarian antiquity.
The mountaineers of Caucasia offer another extremely instructive field
for illustrations of the same kind. In studying the present customs of
the Ossetes--their joint families and communes and their judiciary
conceptions--Professor Kovalevsky, in a remarkable work on Modern Custom
and Ancient Law was enabled step by step to trace the similar
dispositions of the old barbarian codes and even to study the origins of
feudalism. With other Caucasian stems we occasionally catch a glimpse
into the origin of the village community in those cases where it was not
tribal but originated from a voluntary union between families of
distinct origin. Such was recently the case with some Khevsoure
villages, the inhabitants of which took the oath of "community and
fraternity."(36) In another part of Caucasus, Daghestan, we see the
growth of feudal relations between two tribes, both maintaining at the
same time their village communities (and even traces of the gentile
"classes"), and thus giving a living illustration of the forms taken by
the conquest of Italy and Gaul by the barbarians. The victorious race,
the Lezghines, who have conquered several Georgian and Tartar villages
in the Zakataly district, did not bring them under the dominion of
separate families; they constituted a feudal clan which now includes
12,000 households in three villages, and owns in common no less than
twenty Georgian and Tartar villages. The conquerors divided their own
land among their clans, and the clans divided it in equal parts among
the families; but they did not interfere with the djemmaas of their
tributaries which still practise the habit mentioned by Julius Caesar;
namely, the djemmaa decides each year which part of the communal
territory must be cultivated, and this land is divided into as many
parts as there are families, and the parts are distributed by lot. It is
worthy of note that although proletarians are of common occurrence among
the Lezghines (who live under a system of private property in land, and
common ownership of serfs(37)) they are rare among their Georgian serfs,
who continue to hold their land in common. As to the customary law of
the Caucasian mountaineers, it is much the same as that of the
Longobards or Salic Franks, and several of its dispositions explain a
good deal the judicial procedure of the barbarians of old. Being of a
very impressionable character, they do their best to prevent quarrels
from taking a fatal issue; so, with the Khevsoures, the swords are very
soon drawn when a quarrel breaks out; but if a woman rushes out and
throws among them the piece of linen which she wears on her head, the
swords are at once returned to their sheaths, and the quarrel is
appeased. The head-dress of the women is anaya. If a quarrel has not
been stopped in time and has ended in murder, the compensation money is
so considerable that the aggressor is entirely ruined for his life,
unless he is adopted by the wronged family; and if he has resorted to
his sword in a trifling quarrel and has inflicted wounds, he loses for
ever the consideration of his kin. In all disputes, mediators take the
matter in hand; they select from among the members of the clan the
judges--six in smaller affairs, and from ten to fifteen in more serious
matters--and Russian observers testify to the absolute incorruptibility
of the judges. An oath has such a significance that men enjoying general
esteem are dispensed from taking it: a simple affirmation is quite
sufficient, the more so as in grave affairs the Khevsoure never
hesitates to recognize his guilt (I mean, of course, the Khevsoure
untouched yet by civilization). The oath is chiefly reserved for such
cases, like disputes about property, which require some sort of
appreciation in addition to a simple statement of facts; and in such
cases the men whose affirmation will decide in the dispute, act with the
greatest circumspection. Altogether it is certainly not a want of
honesty or of respect to the rights of the congeners which characterizes
the barbarian societies of Caucasus.
The stems of Africa offer such an immense variety of extremely
interesting societies standing at all intermediate stages from the early
village community to the despotic barbarian monarchies that I must
abandon the idea of giving here even the chief results of a comparative
study of their institutions.(38) Suffice it to say, that, even under the
most horrid despotism of kings, the folkmotes of the village communities
and their customary law remain sovereign in a wide circle of affairs.
The law of the State allows the king to take any one's life for a simple
caprice, or even for simply satisfying his gluttony; but the customary
law of the people continues to maintain the same network of institutions
for mutual support which exist among other barbarians or have existed
among our ancestors. And with some better-favoured stems (in Bornu,
Uganda, Abyssinia), and especially the Bogos, some of the dispositions
of the customary law are inspired with really graceful and delicate
feelings.
The village communities of the natives of both Americas have the same
character. The Tupi of Brazil were found living in "long houses"
occupied by whole clans which used to cultivate their corn and manioc
fields in common. The Arani, much more advanced in civilization, used to
cultivate their fields in common; so also the Oucagas, who had learned
under their system of primitive communism and "long houses" to build
good roads and to carry on a variety of domestic industries,(39) not
inferior to those of the early medieval times in Europe. All of them
were also living under the same customary law of which we have given
specimens on the preceding pages. At another extremity of the world we
find the Malayan feudalism, but this feudalism has been powerless to
unroot the negaria, or village community, with its common ownership of
at least part of the land, and the redistribution of land among the
several negarias of the tribe.(40) With the Alfurus of Minahasa we find
the communal rotation of the crops; with the Indian stem of the Wyandots
we have the periodical redistribution of land within the tribe, and the
clan-culture of the soil; and in all those parts of Sumatra where Moslem
institutions have not yet totally destroyed the old organization we find
the joint family (suka) and the village community (kota) which maintains
its right upon the land, even if part of it has been cleared without its
authorization.(41) But to say this, is to say that all customs for
mutual protection and prevention of feuds and wars, which have been
briefly indicated in the preceding pages as characteristic of the
village community, exist as well. More than that: the more fully the
communal possession of land has been maintained, the better and the
gentler are the habits. De Stuers positively affirms that wherever the
institution of the village community has been less encroached upon by
the conquerors, the inequalities of fortunes are smaller, and the very
prescriptions of the lex talionis are less cruel; while, on the
contrary, wherever the village community has been totally broken up,
"the inhabitants suffer the most unbearable oppression from their
despotic rulers."(42) This is quite natural. And when Waitz made the
remark that those stems which have maintained their tribal
confederations stand on a higher level of development and have a richer
literature than those stems which have forfeited the old bonds of union,
he only pointed out what might have been foretold in advance.
More illustrations would simply involve me in tedious repetitions--so
strikingly similar are the barbarian societies under all climates and
amidst all races. The same process of evolution has been going on in
mankind with a wonderful similarity. When the clan organization,
assailed as it was from within by the separate family, and from without
by the dismemberment of the migrating clans and the necessity of taking
in strangers of different descent--the village community, based upon a
territorial conception, came into existence. This new institution, which
had naturally grown out of the preceding one--the clan--permitted the
barbarians to pass through a most disturbed period of history without
being broken into isolated families which would have succumbed in the
struggle for life. New forms of culture developed under the new
organization; agriculture attained the stage which it hardly has
surpassed until now with the great number; the domestic industries
reached a high degree of perfection. The wilderness was conquered, it
was intersected by roads, dotted with swarms thrown off by the
mother-communities. Markets and fortified centres, as well as places of
public worship, were erected. The conceptions of a wider union, extended
to whole stems and to several stems of various origin, were slowly
elaborated. The old conceptions of justice which were conceptions of
mere revenge, slowly underwent a deep modification--the idea of amends
for the wrong done taking the place of revenge. The customary law which
still makes the law of the daily life for two-thirds or more of mankind,
was elaborated under that organization, as well as a system of habits
intended to prevent the oppression of the masses by the minorities whose
powers grew in proportion to the growing facilities for private
accumulation of wealth. This was the new form taken by the tendencies of
the masses for mutual support. And the progress--economical,
intellectual, and moral--which mankind accomplished under this new
popular form of organization, was so great that the States, when they
were called later on into existence, simply took possession, in the
interest of the minorities, of all the judicial, economical, and
administrative functions which the village community already had
exercised in the interest of all.
NOTES:
1. Numberless traces of post-pliocene lakes, now disappeared, are found
over Central, West, and North Asia. Shells of the same species as those
now found in the Caspian Sea are scattered over the surface of the soil
as far East as half-way to Lake Aral, and are found in recent deposits
as far north as Kazan. Traces of Caspian Gulfs, formerly taken for old
beds of the Amu, intersect the Turcoman territory. Deduction must surely
be made for temporary, periodical oscillations. But with all that,
desiccation is evident, and it progresses at a formerly unexpected
speed. Even in the relatively wet parts of South-West Siberia, the
succession of reliable surveys, recently published by Yadrintseff, shows
that villages have grown up on what was, eighty years ago, the bottom of
one of the lakes of the Tchany group; while the other lakes of the same
group, which covered hundreds of square miles some fifty years ago, are
now mere ponds. In short, the desiccation of North-West Asia goes on at
a rate which must be measured by centuries, instead of by the geological
units of time of which we formerly used to speak.
2. Whole civilizations had thus disappeared, as is proved now by the
remarkable discoveries in Mongolia on the Orkhon and in the Lukchun
depression (by Dmitri Clements).
3. If I follow the opinions of (to name modern specialists only) Nasse,
Kovalevsky, and Vinogradov, and not those of Mr. Seebohm (Mr. Denman
Ross can only be named for the sake of completeness), it is not only
because of the deep knowledge and concordance of views of these three
writers, but also on account of their perfect knowledge of the village
community altogether--a knowledge the want of which is much felt in the
otherwise remarkable work of Mr. Seebohm. The same remark applies, in a
still higher degree, to the most elegant writings of Fustel de
Coulanges, whose opinions and passionate interpretations of old texts
are confined to himself.
4. The literature of the village community is so vast that but a few
works can be named. Those of Sir Henry Maine, Mr. Seebohm, and Walter's
Das alte Wallis (Bonn, 1859), are well-known popular sources of
information about Scotland, Ireland, and Wales. For France, P. Viollet,
Precis de l'histoire du droit francais. Droit prive, 1886, and several
of his monographs in Bibl. de l'Ecole des Chartes; Babeau, Le Village
sous l'ancien regime (the mir in the eighteenth century), third edition,
1887; Bonnemere, Doniol, etc. For Italy and Scandinavia, the chief works
are named in Laveleye's Primitive Property, German version by K. Bucher.
For the Finns, Rein's Forelasningar, i. 16; Koskinen, Finnische
Geschichte, 1874, and various monographs. For the Lives and Coures,
Prof. Lutchitzky in Severnyi Vestnil, 1891. For the Teutons, besides the
well-known works of Maurer, Sohm (Altdeutsche Reichs-und
Gerichts-Verfassung), also Dahn (Urzeit, Volkerwanderung, Langobardische
Studien), Janssen, Wilh. Arnold, etc. For India, besides H. Maine and
the works he names, Sir John Phear's Aryan Village. For Russia and South
Slavonians, see Kavelin, Posnikoff, Sokolovsky, Kovalevsky, Efimenko,
Ivanisheff, Klaus, etc. (copious bibliographical index up to 1880 in the
Sbornik svedeniy ob obschinye of the Russ. Geog. Soc.). For general
conclusions, besides Laveleye's Propriete, Morgan's Ancient Society,
Lippert's Kulturgeschichte, Post, Dargun, etc., also the lectures of M.
Kovalevsky (Tableau des origines et de l'evolution de la famille et de
la propriete, Stockholm, 1890). Many special monographs ought to be
mentioned; their titles may be found in the excellent lists given by P.
Viollet in Droit prive and Droit public. For other races, see subsequent
notes.
5. Several authorities are inclined to consider the joint household as
an intermediate stage between the clan and the village community; and
there is no doubt that in very many cases village communities have grown
up out of undivided families. Nevertheless, I consider the joint
household as a fact of a different order. We find it within the gentes;
on the other hand, we cannot affirm that joint families have existed at
any period without belonging either to a gens or to a village community,
or to a Gau. I conceive the early village communities as slowly
originating directly from the gentes, and consisting, according to
racial and local circumstances, either of several joint families, or of
both joint and simple families, or (especially in the case of new
settlements) of simple families only. If this view be correct, we should
not have the right of establishing the series: gens, compound family,
village community--the second member of the series having not the same
ethnological value as the two others. See Appendix IX.
6. Stobbe, Beitrag zur Geschichte des deutschen Rechtes, p. 62.
7. The few traces of private property in land which are met with in the
early barbarian period are found with such stems (the Batavians, the
Franks in Gaul) as have been for a time under the influence of Imperial
Rome. See Inama-Sternegg's Die Ausbildung der grossen Grundherrschaften
in Deutschland, Bd. i. 1878. Also, Besseler, Neubruch nach dem alteren
deutschen Recht, pp. 11-12, quoted by Kovalevsky, Modern Custom and
Ancient Law, Moscow, 1886, i. 134.
8. Maurer's Markgenossenschaft; Lamprecht's "Wirthschaft und Recht der
Franken zur Zeit der Volksrechte," in Histor. Taschenbuch, 1883;
Seebohm's The English Village Community, ch. vi, vii, and ix.
9. Letourneau, in Bulletin de la Soc. d'Anthropologie, 1888, vol. xi. p.
476.
10. Walter, Das alte Wallis, p. 323; Dm. Bakradze and N. Khoudadoff in
Russian Zapiski of the Caucasian Geogr. Society, xiv. Part I.
11. Bancroft's Native Races; Waitz, Anthropologie, iii. 423; Montrozier,
in Bull. Soc. d'Anthropologie, 1870; Post's Studien, etc.
12. A number of works, by Ory, Luro, Laudes, and Sylvestre, on the
village community in Annam, proving that it has had there the same forms
as in Germany or Russia, is mentioned in a review of these works by
Jobbe-Duval, in Nouvelle Revue historique de droit francais et etranger,
October and December, 1896. A good study of the village community of
Peru, before the establishment of the power of the Incas, has been
brought out by Heinrich Cunow (Die Soziale Verfassung des Inka-Reichs,
Stuttgart, 1896.) The communal possession of land and communal culture
are described in that work.
13. Kovalevsky, Modern Custom and Ancient Law, i. 115.
14. Palfrey, History of New England, ii. 13; quoted in Maine's Village
Communities, New York, 1876, p. 201.
15. Konigswarter, Etudes sur le developpement des societes humaines,
Paris, 1850.
16. This is, at least, the law of the Kalmucks, whose customary law
bears the closest resemblance to the laws of the Teutons, the old
Slavonians, etc.
17. The habit is in force still with many African and other tribes.
18. Village Communities, pp. 65-68 and 199.
19. Maurer (Gesch. der Markverfassung, sections 29, 97) is quite
decisive upon this subject. He maintains that "All members of the
community ... the laic and clerical lords as well, often also the
partial co-possessors (Markberechtigte), and even strangers to the Mark,
were submitted to its jurisdiction" (p. 312). This conception remained
locally in force up to the fifteenth century.
20. Konigswarter, loc. cit. p. 50; J. Thrupp, Historical Law Tracts,
London, 1843, p. 106.
21. Konigswarter has shown that the fred originated from an offering
which had to be made to appease the ancestors. Later on, it was paid to
the community, for the breach of peace; and still later to the judge, or
king, or lord, when they had appropriated to themselves the rights of
the community.
22. Post's Bausteine and Afrikanische Jurisprudenz, Oldenburg, 1887,
vol. i. pp. 64 seq.; Kovalevsky, loc. cit. ii. 164-189.
23. O. Miller and M. Kovalevsky, "In the Mountaineer Communities of
Kabardia," in Vestnik Evropy, April, 1884. With the Shakhsevens of the
Mugan Steppe, blood feuds always end by marriage between the two hostile
sides (Markoff, in appendix to the Zapiski of the Caucasian Geogr. Soc.
xiv. 1, 21).
24. Post, in Afrik. Jurisprudenz, gives a series of facts illustrating
the conceptions of equity inrooted among the African barbarians. The
same may be said of all serious examinations into barbarian common law.
25. See the excellent chapter, "Le droit de La Vieille Irlande," (also
"Le Haut Nord") in Etudes de droit international et de droit politique,
by Prof. E. Nys, Bruxelles, 1896.
26. Introduction, p. xxxv.
27. Das alte Wallis, pp. 343-350.
28. Maynoff, "Sketches of the Judicial Practices of the Mordovians," in
the ethnographical Zapiski of the Russian Geographical Society, 1885,
pp. 236, 257.
29. Henry Maine, International Law, London, 1888, pp. 11-13. E. Nys, Les
origines du droit international, Bruxelles, 1894.
30. A Russian historian, the Kazan Professor Schapoff, who was exiled in
1862 to Siberia, has given a good description of their institutions in
the Izvestia of the East-Siberian Geographical Society, vol. v. 1874.
31. Sir Henry Maine's Village Communities, New York, 1876, pp. 193-196.
32. Nazaroff, The North Usuri Territory (Russian), St. Petersburg, 1887,
p. 65.
33. Hanoteau et Letourneux, La Kabylie, 3 vols. Paris, 1883.
34. To convoke an "aid" or "bee," some kind of meal must be offered to
the community. I am told by a Caucasian friend that in Georgia, when the
poor man wants an "aid," he borrows from the rich man a sheep or two to
prepare the meal, and the community bring, in addition to their work, so
many provisions that he may repay the debt. A similar habit exists with
the Mordovians.
35. Hanoteau et Letourneux, La kabylie, ii. 58. The same respect to
strangers is the rule with the Mongols. The Mongol who has refused his
roof to a stranger pays the full blood-compensation if the stranger has
suffered therefrom (Bastian, Der Mensch in der Geschichte, iii. 231).
36. N. Khoudadoff, "Notes on the Khevsoures," in Zapiski of the
Caucasian Geogr. Society, xiv. 1, Tiflis, 1890, p. 68. They also took
the oath of not marrying girls from their own union, thus displaying a
remarkable return to the old gentile rules.
37. Dm. Bakradze, "Notes on the Zakataly District," in same Zapiski,
xiv. 1, p. 264. The "joint team" is as common among the Lezghines as it
is among the Ossetes.
38. See Post, Afrikanische Jurisprudenz, Oldenburg, 1887. Munzinger,
Ueber das Recht und Sitten der Bogos, Winterthur 1859; Casalis, Les
Bassoutos, Paris, 1859; Maclean, Kafir Laws and Customs, Mount Coke,
1858, etc.
39. Waitz, iii. 423 seq.
40. Post's Studien zur Entwicklungsgeschichte des Familien Rechts
Oldenburg, 1889, pp. 270 seq.
41. Powell, Annual Report of the Bureau of Ethnography, Washington,
1881, quoted in Post's Studien, p. 290; Bastian's Inselgruppen in
Oceanien, 1883, p. 88.
42. De Stuers, quoted by Waitz, v. 141.