4. Mutual aid among the barbarians

Submitted by libcom on January 31, 2006

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


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 a nd 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


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


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 pitt?y?, 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 category6. 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


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


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 d?bris 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

(?rch); 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

djemm?a, 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 djemm?a 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 djemm?a 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 djemm?as 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 djemm?a,

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

djemm?a of the man who has suffered from such neglect may lodge a

complaint, and the djemm?a 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 djemm?as, 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 djemm?as

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 ?ofs. 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 ?of it is a widely spread form of

association, having some characters of the mediaeval B?rgschaften

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 ?of 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 djemm?as of their tributaries which still practise the habit

mentioned by Julius Caesar; namely, the djemm?a 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 serfs37) 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.

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, Pr?cis de l'histoire du droit fran?ais. Droit
priv?, 1886, and several of his monographs in Bibl. de l'Ecole
des Chartes; Babeau, Le Village sous l'ancien r?gime (the mir in
the eighteenth century), third edition, 1887; Bonnem?re, Doniol,
etc. For Italy and Scandinavia, the chief works are named in
Laveleye's Primitive Property, German version by K. B?cher. For
the Finns, Rein's F?rel?sningar, 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, V?lkerwanderung, 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 Propri?t?, Morgan's
Ancient Society, Lippert's Kulturgeschichte, Post, Dargun, etc.,
also the lectures of M. Kovalevsky (Tableau des origines et de
l'?volution de la famille et de la propri?t?, Stockholm, 1890).
Many special monographs ought to be mentioned; their titles may
be found in the excellent lists given by P. Viollet in Droit
priv? 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, Beitr?g 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 ?lteren 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,
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 Jobb?-Duval, in Nouvelle Revue historique de droit
fran?ais et ?tranger, 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
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 K?nigswarter, Etudes sur le d?veloppement des soci?t?s
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
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 K?nigswarter, loc. cit. p. 50; J. Thrupp, Historical Law
Tracts, London, 1843, p. 106.
21 K?nigswarter 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.
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.
M?nzinger, 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.