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More illustrations would simply involve me in tedious
repetitions--so strikingly similar are the barbarian societies
under all climates and amidst all races. The same process of
evolution has been going on in mankind with a wonderful
similarity. When the clan organization, assailed as it was from
within by the separate family, and from without by the
dismemberment of the migrating clans and the necessity of taking
in strangers of different descent--the village community, based
upon a territorial conception, came into existence. This new
institution, which had naturally grown out of the preceding one--
the clan--permitted the barbarians to pass through a most
disturbed period of history without being broken into isolated
families which would have succumbed in the struggle for life. New
forms of culture developed under the new organization;
agriculture attained the stage which it hardly has surpassed
until now with the great number; the domestic industries reached
a high degree of perfection. The wilderness was conquered, it was
intersected by roads, dotted with swarms thrown off by the
mother-communities. Markets and fortified centres, as well as
places of public worship, were erected. The conceptions of a
wider union, extended to whole stems and to several stems of
various origin, were slowly elaborated. The old conceptions of
justice which were conceptions of mere revenge, slowly underwent
a deep modification--the idea of amends for the wrong done
taking the place of revenge. The customary law which still makes
the law of the daily life for two-thirds or more of mankind, was
elaborated under that organization, as well as a system of habits
intended to prevent the oppression of the masses by the
minorities whose powers grew in proportion to the growing
facilities for private accumulation of wealth. This was the new
form taken by the tendencies of the masses for mutual support.
And the progress--economical, intellectual, and moral--which
mankind accomplished under this new popular form of organization,
was so great that the States, when they were called later on into
existence, simply took possession, in the interest of the
minorities, of all the judicial, economical, and administrative
functions which the village community already had exercised in
the interest of all.

NOTES:

1. Numberless traces of post-pliocene lakes, now disappeared, are
found over Central, West, and North Asia. Shells of the same
species as those now found in the Caspian Sea are scattered over
the surface of the soil as far East as half-way to Lake Aral, and
are found in recent deposits as far north as Kazan. Traces of
Caspian Gulfs, formerly taken for old beds of the Amu, intersect
the Turcoman territory. Deduction must surely be made for
temporary, periodical oscillations. But with all that,
desiccation is evident, and it progresses at a formerly
unexpected speed. Even in the relatively wet parts of South-West
Siberia, the succession of reliable surveys, recently published
by Yadrintseff, shows that villages have grown up on what was,
eighty years ago, the bottom of one of the lakes of the Tchany
group; while the other lakes of the same group, which covered
hundreds of square miles some fifty years ago, are now mere
ponds. In short, the desiccation of North-West Asia goes on at a
rate which must be measured by centuries, instead of by the
geological units of time of which we formerly used to speak.

2. Whole civilizations had thus disappeared, as is proved now by
the remarkable discoveries in Mongolia on the Orkhon and in the
Lukchun depression (by Dmitri Clements).

3. If I follow the opinions of (to name modern specialists only)
Nasse, Kovalevsky, and Vinogradov, and not those of Mr. Seebohm
(Mr. Denman Ross can only be named for the sake of completeness),
it is not only because of the deep knowledge and concordance of
views of these three writers, but also on account of their
perfect knowledge of the village community altogether--a
knowledge the want of which is much felt in the otherwise
remarkable work of Mr. Seebohm. The same remark applies, in a
still higher degree, to the most elegant writings of Fustel de
Coulanges, whose opinions and passionate interpretations of old
texts are confined to himself.

4. The literature of the village community is so vast that but a
few works can be named. Those of Sir Henry Maine, Mr. Seebohm,
and Walter's Das alte Wallis (Bonn, 1859), are well-known popular
sources of information about Scotland, Ireland, and Wales. For
France, P. Viollet, Precis de l'histoire du droit francais. Droit
prive, 1886, and several of his monographs in Bibl. de l'Ecole
des Chartes; Babeau, Le Village sous l'ancien regime (the mir in
the eighteenth century), third edition, 1887; Bonnemere, Doniol,
etc. For Italy and Scandinavia, the chief works are named in
Laveleye's Primitive Property, German version by K. Bucher. For
the Finns, Rein's Forelasningar, i. 16; Koskinen, Finnische
Geschichte, 1874, and various monographs. For the Lives and
Coures, Prof. Lutchitzky in Severnyi Vestnil, 1891. For the
Teutons, besides the well-known works of Maurer, Sohm
(Altdeutsche Reichsund Gerichts-Verfassung), also Dahn
(Urzeit, Volkerwanderung, Langobardische Studien), Janssen, Wilh.
Arnold, etc. For India, besides H. Maine and the works he names,
Sir John Phear's Aryan Village. For Russia and South Slavonians,
see Kavelin, Posnikoff, Sokolovsky, Kovalevsky, Efimenko,
Ivanisheff, Klaus, etc. (copious bibliographical index up to 1880
in the Sbornik svedeniy ob obschinye of the Russ. Geog. Soc.).
For general conclusions, besides Laveleye's Propriete, Morgan's
Ancient Society, Lippert's Kulturgeschichte, Post, Dargun, etc.,
also the lectures of M. Kovalevsky (Tableau des origines et de
l'evolution de la famille et de la propriete, Stockholm, 1890).
Many special monographs ought to be mentioned; their titles may
be found in the excellent lists given by P. Viollet in Droit
prive and Droit public. For other races, see subsequent notes.

5. Several authorities are inclined to consider the joint
household as an intermediate stage between the clan and the
village community; and there is no doubt that in very many cases
village communities have grown up out of undivided families.
Nevertheless, I consider the joint household as a fact of a
different order. We find it within the gentes; on the other hand,
we cannot affirm that joint families have existed at any period
without belonging either to a gens or to a village community, or
to a Gau. I conceive the early village communities as slowly
originating directly from the gentes, and consisting, according
to racial and local circumstances, either of several joint
families, or of both joint and simple families, or (especially in
the case of new settlements) of simple families only. If this
view be correct, we should not have the right of establishing the
series: gens, compound family, village community--the second
member of the series having not the same ethnological value as
the two others. See Appendix IX.

6. Stobbe, Beitrag zur Geschichte des deutschen Rechtes, p. 62.

7. The few traces of private property in land which are met with
in the early barbarian period are found with such stems (the
Batavians, the Franks in Gaul) as have been for a time under the
influence of Imperial Rome. See Inama-Sternegg's Die Ausbildung
der grossen Grundherrschaften in Deutschland, Bd. i. 1878. Also,
Besseler, Neubruch nach dem alteren deutschen Recht, pp. 11-12,
quoted by Kovalevsky, Modern Custom and Ancient Law, Moscow,
1886, i. 134.

8. Maurer's Markgenossenschaft; Lamprecht's "Wirthschaft und
Recht der Franken zur Zeit der Volksrechte," in Histor.
Taschenbuch, 1883; Seebohm's The English Village Community, ch.
vi, vii, and ix.

9. Letourneau, in Bulletin de la Soc. d'Anthropologie, 1888, vol.
xi. p. 476.

10. Walter, Das alte Wallis, p. 323; Dm. Bakradze and N.
Khoudadoff in Russian Zapiski of the Caucasian Geogr. Society,
xiv. Part I.

11. Bancroft's Native Races; Waitz, Anthropologie, iii. 423;
Montrozier, in Bull. Soc. d'Anthropologie, 1870; Post's Studien,
etc.

12. A number of works, by Ory, Luro, Laudes, and Sylvestre, on
the village community in Annam, proving that it has had there the
same forms as in Germany or Russia, is mentioned in a review of
these works by Jobbe-Duval, in Nouvelle Revue historique de droit
francais et etranger, October and December, 1896. A good study of
the village community of Peru, before the establishment of the
power of the Incas, has been brought out by Heinrich Cunow (Die
Soziale Verfassung des Inka-Reichs, Stuttgart, 1896.) The communal
possession of land and communal culture are described in that
work.

13. Kovalevsky, Modern Custom and Ancient Law, i. 115.

14. Palfrey, History of New England, ii. 13; quoted in Maine's
Village Communities, New York, 1876, p. 201.

15. Konigswarter, Etudes sur le developpement des societes
humaines, Paris, 1850.

16. This is, at least, the law of the Kalmucks, whose customary
law bears the closest resemblance to the laws of the Teutons, the
old Slavonians, etc.

17. The habit is in force still with many African and other
tribes.

18. Village Communities, pp. 65-68 and 199.

19. Maurer (Gesch. der Markverfassung, sections 29, 97) is quite
decisive upon this subject. He maintains that "All members of the
community... the laic and clerical lords as well, often also the
partial co-possessors (Markberechtigte), and even strangers to
the Mark, were submitted to its jurisdiction" (p. 312). This
conception remained locally in force up to the fifteenth century.

20. Konigswarter, loc. cit. p. 50; J. Thrupp, Historical Law
Tracts, London, 1843, p. 106.

21. Konigswarter has shown that the fred originated from an
offering which had to be made to appease the ancestors. Later on,
it was paid to the community, for the breach of peace; and still
later to the judge, or king, or lord, when they had appropriated
to themselves the rights of the community.

22. Post's Bausteine and Afrikanische Jurisprudenz, Oldenburg,
1887, vol. i. pp. 64 seq.; Kovalevsky, loc. cit. ii. 164-189.

23. O. Miller and M. Kovalevsky, "In the Mountaineer Communities
of Kabardia," in Vestnik Evropy, April, 1884. With the
Shakhsevens of the Mugan Steppe, blood feuds always end by
marriage between the two hostile sides (Markoff, in appendix to
the Zapiski of the Caucasian Geogr. Soc. xiv. 1, 21).

24. Post, in Afrik. Jurisprudenz, gives a series of facts
illustrating the conceptions of equity inrooted among the African
barbarians. The same may be said of all serious examinations into
barbarian common law.

25. See the excellent chapter, "Le droit de La Vieille Irlande,"
(also "Le Haut Nord") in Etudes de droit international et de
droit politique, by Prof. E. Nys, Bruxelles, 1896.

26. Introduction, p. xxxv.

27. Das alte Wallis, pp. 343-350.

28. Maynoff, "Sketches of the Judicial Practices of the
Mordovians," in the ethnographical Zapiski of the Russian
Geographical Society, 1885, pp. 236, 257.

29. Henry Maine, International Law, London, 1888, pp. 11-13. E.
Nys, Les origines du droit international, Bruxelles, 1894.

30. A Russian historian, the Kazan Professor Schapoff, who was
exiled in 1862 to Siberia, has given a good description of their
institutions in the Izvestia of the East-Siberian Geographical
Society, vol. v. 1874.

31. Sir Henry Maine's Village Communities, New York, 1876, pp.
193-196.

32. Nazaroff, The North Usuri Territory (Russian), St.
Petersburg, 1887, p. 65.

33. Hanoteau et Letourneux, La Kabylie, 3 vols. Paris, 1883.

34. To convoke an "aid" or "bee," some kind of meal must be
offered to the community. I am told by a Caucasian friend that in
Georgia, when the poor man wants an "aid," he borrows from the
rich man a sheep or two to prepare the meal, and the community
bring, in addition to their work, so many provisions that he may
repay the debt. A similar habit exists with the Mordovians.

35. Hanoteau et Letourneux, La kabylie, ii. 58. The same respect
to strangers is the rule with the Mongols. The Mongol who has
refused his roof to a stranger pays the full blood-compensation
if the stranger has suffered therefrom (Bastian, Der Mensch in
der Geschichte, iii. 231).

36. N. Khoudadoff, "Notes on the Khevsoures," in Zapiski of the
Caucasian Geogr. Society, xiv. 1, Tiflis, 1890, p. 68. They also
took the oath of not marrying girls from their own union, thus
displaying a remarkable return to the old gentile rules.

37. Dm. Bakradze, "Notes on the Zakataly District," in same
Zapiski, xiv. 1, p. 264. The "joint team" is as common among the
Lezghines as it is among the Ossetes.

38. See Post, Afrikanische Jurisprudenz, Oldenburg, 1887.
Munzinger, Ueber das Recht und Sitten der Bogos, Winterthur
1859; Casalis, Les Bassoutos, Paris, 1859; Maclean, Kafir Laws
and Customs, Mount Coke, 1858, etc.

39. Waitz, iii. 423 seq.

40. Post's Studien zur Entwicklungsgeschichte des Familien Rechts
Oldenburg, 1889, pp. 270 seq.

41. Powell, Annual Report of the Bureau of Ethnography,
Washington, 1881, quoted in Post's Studien, p. 290; Bastian's
Inselgruppen in Oceanien, 1883, p. 88.

42. De Stuers, quoted by Waitz, v. 141.






CHAPTER V

MUTUAL AID IN THE MEDIAEVAL CITY

Growth of authority in Barbarian Society. Serfdom in the
villages. Revolt of fortified towns: their liberation; their
charts. The guild. Double origin of the free medieval city.
Self-jurisdiction, self-administration. Honourable position
of labour. Trade by the guild and by the city.





Sociability and need of mutual aid and support are such
inherent parts of human nature that at no time of history can we
discover men living in small isolated families, fighting each
other for the means of subsistence. On the contrary, modern
research, as we saw it in the two preceding chapters, proves that
since the very beginning of their prehistoric life men used to
agglomerate into gentes, clans, or tribes, maintained by an idea
of common descent and by worship of common ancestors. For
thousands and thousands of years this organization has kept men
together, even though there was no authority whatever to impose
it. It has deeply impressed all subsequent development of
mankind; and when the bonds of common descent had been loosened
by migrations on a grand scale, while the development of the
separated family within the clan itself had destroyed the old
unity of the clan, a new form of union, territorial in its
principle--the village community--was called into existence
by the social genius of man. This institution, again, kept men
together for a number of centuries, permitting them to further
develop their social institutions and to pass through some of the
darkest periods of history, without being dissolved into loose
aggregations of families and individuals, to make a further step
in their evolution, and to work out a number of secondary social
institutions, several of which have survived down to the present
time. We have now to follow the further developments of the same
ever-living tendency for mutual aid. Taking the village
communities of the so-called barbarians at a time when they were
making a new start of civilization after the fall of the Roman
Empire, we have to study the new aspects taken by the sociable
wants of the masses in the middle ages, and especially in the
medieval guilds and the medieval city.

Far from being the fighting animals they have often been
compared to, the barbarians of the first centuries of our era
(like so many Mongolians, Africans, Arabs, and so on, who still
continue in the same barbarian stage) invariably preferred peace
to war. With the exception of a few tribes which had been driven
during the great migrations into unproductive deserts or
highlands, and were thus compelled periodically to prey upon
their better-favoured neighbours--apart from these, the great
bulk of the Teutons, the Saxons, the Celts, the Slavonians, and
so on, very soon after they had settled in their newly-conquered
abodes, reverted to the spade or to their herds. The earliest
barbarian codes already represent to us societies composed of
peaceful agricultural communities, not hordes of men at war with
each other. These barbarians covered the country with villages
and farmhouses;(1) they cleared the forests, bridged the
torrents, and colonized the formerly quite uninhabited
wilderness; and they left the uncertain warlike pursuits to
brotherhoods, scholae, or "trusts" of unruly men, gathered round
temporary chieftains, who wandered about, offering their
adventurous spirit, their arms, and their knowledge of warfare
for the protection of populations, only too anxious to be left in
peace. The warrior bands came and went, prosecuting their family
feuds; but the great mass continued to till the soil, taking but
little notice of their would-be rulers, so long as they did not
interfere with the independence of their village communities.(2)
The new occupiers of Europe evolved the systems of land tenure
and soil culture which are still in force with hundreds of
millions of men; they worked out their systems of compensation
for wrongs, instead of the old tribal blood-revenge; they learned
the first rudiments of industry; and while they fortified their
villages with palisaded walls, or erected towers and earthen
forts whereto to repair in case of a new invasion, they soon
abandoned the task of defending these towers and forts to those
who made of war a speciality.

The very peacefulness of the barbarians, certainly not their
supposed warlike instincts, thus became the source of their
subsequent subjection to the military chieftains. It is evident
that the very mode of life of the armed brotherhoods offered them
more facilities for enrichment than the tillers of the soil could
find in their agricultural communities. Even now we see that
armed men occasionally come together to shoot down Matabeles and
to rob them of their droves of cattle, though the Matabeles only
want peace and are ready to buy it at a high price. The scholae
of old certainly were not more scrupulous than the scholae of our
own time. Droves of cattle, iron (which was extremely costly at
that time(3)), and slaves were appropriated in this way; and
although most acquisitions were wasted on the spot in those
glorious feasts of which epic poetry has so much to say--still
some part of the robbed riches was used for further enrichment.
There was plenty of waste land, and no lack of men ready to till
it, if only they could obtain the necessary cattle and
implements. Whole villages, ruined by murrains, pests, fires, or
raids of new immigrants, were often abandoned by their
inhabitants, who went anywhere in search of new abodes. They
still do so in Russia in similar circumstances. And if one of the
hirdmen of the armed brotherhoods offered the peasants some
cattle for a fresh start, some iron to make a plough, if not the
plough itself, his protection from further raids, and a number of
years free from all obligations, before they should begin to
repay the contracted debt, they settled upon the land. And when,
after a hard fight with bad crops, inundations and pestilences,
those pioneers began to repay their debts, they fell into servile
obligations towards the protector of the territory. Wealth
undoubtedly did accumulate in this way, and power always follows
wealth.(4) And yet, the more we penetrate into the life of those
times, the sixth and seventh centuries of our era, the more we
see that another element, besides wealth and military force, was
required to constitute the authority of the few. It was an
element of law and tight, a desire of the masses to maintain
peace, and to establish what they considered to be justice, which
gave to the chieftains of the scholae--kings, dukes, knyazes,
and the like--the force they acquired two or three hundred
years later. That same idea of justice, conceived as an adequate
revenge for the wrong done, which had grown in the tribal stage,
now passed as a red thread through the history of subsequent
institutions, and, much more even than military or economic
causes, it became the basis upon which the authority of the kings
and the feudal lords was founded.

In fact, one of the chief preoccupations of the barbarian
village community always was, as it still is with our barbarian
contemporaries, to put a speedy end to the feuds which arose from
the then current conception of justice. When a quarrel took
place, the community at once interfered, and after the folkmote
had heard the case, it settled the amount of composition
(wergeld) to be paid to the wronged person, or to his family, as
well as the fred, or fine for breach of peace, which had to be
paid to the community. Interior quarrels were easily appeased in
this way. But when feuds broke out between two different tribes,
or two confederations of tribes, notwithstanding all measures
taken to prevent them,(5) the difficulty was to find an arbiter
or sentence-finder whose decision should be accepted by both
parties alike, both for his impartiality and for his knowledge of
the oldest law. The difficulty was the greater as the customary
laws of different tribes and confederations were at variance as
to the compensation due in different cases. It therefore became
habitual to take the sentence-finder from among such families, or
such tribes, as were reputed for keeping the law of old in its
purity; of being versed in the songs, triads, sagas, etc., by
means of which law was perpetuated in memory; and to retain law
in this way became a sort of art, a "mystery," carefully
transmitted in certain families from generation to generation.
Thus in Iceland, and in other Scandinavian lands, at every
Allthing, or national folkmote, a lovsogmathr used to recite the
whole law from memory for the enlightening of the assembly; and
in Ireland there was, as is known, a special class of men reputed
for the knowledge of the old traditions, and therefore enjoying a
great authority as judges.(6) Again, when we are told by the
Russian annals that some stems of North-West Russia, moved by the
growing disorder which resulted from "clans rising against
clans," appealed to Norman varingiar to be their judges and
commanders of warrior scholae; and when we see the knyazes, or
dukes, elected for the next two hundred years always from the
same Norman family, we cannot but recognize that the Slavonians
trusted to the Normans for a better knowledge of the law which
would be equally recognized as good by different Slavonian kins.
In this case the possession of runes, used for the transmission
of old customs, was a decided advantage in favour of the Normans;
but in other cases there are faint indications that the "eldest"
branch of the stem, the supposed motherbranch, was appealed to to
supply the judges, and its decisions were relied upon as
just;(7) while at a later epoch we see a distinct tendency
towards taking the sentence-finders from the Christian clergy,
which, at that time, kept still to the fundamental, now
forgotten, principle of Christianity, that retaliation is no act
of justice. At that time the Christian clergy opened the churches
as places of asylum for those who fled from blood revenge, and
they willingly acted as arbiters in criminal cases, always
opposing the old tribal principle of life for life and wound for
wound. In short, the deeper we penetrate into the history of
early institutions, the less we find grounds for the military
theory of origin of authority. Even that power which later on
became such a source of oppression seems, on the contrary, to
have found its origin in the peaceful inclinations of the masses.

In all these cases the fred, which often amounted to half the
compensation, went to the folkmote, and from times immemorial it
used to be applied to works of common utility and defence. It has
still the same destination (the erection of towers) among the
Kabyles and certain Mongolian stems; and we have direct evidence
that even several centuries later the judicial fines, in Pskov
and several French and German cities, continued to be used for
the repair of the city walls.(8) It was thus quite natural that
the fines should be handed over to the sentence-finder, who was
bound, in return, both to maintain the schola of armed men to
whom the defence of the territory was trusted, and to execute the
sentences. This became a universal custom in the eighth and ninth
centuries, even when the sentence-finder was an elected bishop.
The germ of a combination of what we should now call the judicial
power and the executive thus made its appearance. But to these
two functions the attributions of the duke or king were strictly
limited. He was no ruler of the people--the supreme power still
belonging to the folkmote--not even a commander of the popular
militia; when the folk took to arms, it marched under a separate,
also elected, commander, who was not a subordinate, but an equal
to the king.(9) The king was a lord on his personal domain only.
In fact, in barbarian language, the word konung, koning, or
cyning synonymous with the Latin rex, had no other meaning than
that of a temporary leader or chieftain of a band of men. The
commander of a flotilla of boats, or even of a single pirate
boat, was also a konung, and till the present day the commander
of fishing in Norway is named Not-kong--"the king of the
nets."(10) The veneration attached later on to the personality
of a king did not yet exist, and while treason to the kin was
punished by death, the slaying of a king could be recouped by the
payment of compensation: a king simply was valued so much more
than a freeman.(11) And when King Knu (or Canute) had killed one
man of his own schola, the saga represents him convoking his
comrades to a thing where he stood on his knees imploring pardon.
He was pardoned, but not till he had agreed to pay nine times the
regular composition, of which one-third went to himself for the
loss of one of his men, one-third to the relatives of the slain
man, and one-third (the fred) to the schola.(12) In reality, a
complete change had to be accomplished in the current
conceptions, under the double influence of the Church and the
students of Roman law, before an idea of sanctity began to be
attached to the personality of the king.