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 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
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 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
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 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.
Footnotes
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,
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 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
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 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
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 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.
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.
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.
Comments