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 inst.i.tutions, imbued with considerations as to what may be useful or noxious to his tribe or confederation, and these inst.i.tutions 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 p.r.o.nounced 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. n.o.ble or ecclesiastic, he had to submit to the folkmote--Wer daselbst Wa.s.ser 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 pa.s.sages of the sagas and epic poetry altogether are those which glorify what was supposed to be justice. The G.o.ds 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 subst.i.tuting 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 p.r.o.nounced it exclusively in cases of betrayal of one's kin, and sacrilege against the community's G.o.ds, as the only means to appease the G.o.ds.

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 inst.i.tutions 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 inst.i.tutions 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 doc.u.ments only. But a broad light is thrown on the past as soon as we refer to the inst.i.tutions 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 pa.s.sing 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 gra.s.s 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 cl.u.s.ter, as well as several smaller families settled in the same village--mostly debris of joint households accidentally broken up--make the oulous, or the village community; several oulouses make a tribe; and the forty-six tribes, or clans, of the Kudinsk Steppe are united into one confederation. Smaller and closer confederations are entered into, as necessity arises for special wants, by several tribes. They know no private property in land--the land being held in common by the oulous, or rather by the confederation, and if it becomes necessary, the territory is re-allotted between the different oulouses at a folkmote of the tribe, and between the forty-six tribes at a folkmote of the confederation. It is worthy of note that the same organization prevails among all the 250,000 Buryates of East Siberia, although they have been for three centuries under Russian rule, and are well acquainted with Russian inst.i.tutions.

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 dest.i.tute 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 ba.n.a.l 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 inst.i.tution, 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 a.s.sert the unity of the whole Buryate nation, are convoked from time to time. In such cases, all Buryate clans which are scattered for hundreds of miles west and east of Lake Baikal, are bound to send their delegate hunters. Thousands of men come together, each one bringing provisions for a whole month. Every one's share must be equal to all the others, and therefore, before being put together, they are weighed by an elected elder (always "with the hand": scales would be a profanation of the old custom). After that the hunters divide into bands of twenty, and the parties go hunting according to a well-settled plan.

In such abas the entire Buryate nation revives its epic traditions of a time when it was united in a powerful league. Let me add that such communal hunts are quite usual with the Red Indians and the Chinese on the banks of the Usuri (the kada).(32)

With the Kabyles, whose manners of life have been so well described by two French explorers,(33) we have barbarians still more advanced in agriculture. Their fields, irrigated and manured, are well attended to, and in the hilly tracts every available plot of land is cultivated by the spade. The Kabyles have known many vicissitudes in their history; they have followed for sometime the Mussulman law of inheritance, but, being adverse to it, they have returned, 150 years ago, to the tribal customary law of old. Accordingly, their land-tenure is of a mixed character, and private property in land exists side by side with communal possession. Still, the basis of their present organization is the village community, the thaddart, which usually consists of several joint families (kharoubas), claiming a community of origin, as well as of smaller families of strangers. Several villages are grouped into clans or tribes (arch); several tribes make the confederation (thak'ebilt); and several confederations may occasionally enter into a league, chiefly for purposes of armed defence.

The Kabyles know no authority whatever besides that of the djemmaa, or folkmote of the village community. All men of age take part in it, in the open air, or in a special building provided with stone seats. And the decisions of the djemmaa are evidently taken at unanimity: that is, the discussions continue until all present agree to accept, or to submit to, some decision. There being no authority in a village community to impose a decision, this system has been practised by mankind wherever there have been village communities, and it is practised still wherever they continue to exist, i.e. by several hundred million men all over the world. The djemmaa nominates its executive--the elder, the scribe, and the treasurer; it a.s.sesses its own taxes; and it manages the repart.i.tion 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 ca.n.a.ls, the towers erected for protection from robbers, the fences, and so on, are built by the village community; while the high-roads, the larger mosques, and the great market-places are the work of the tribe. Many traces of common culture continue to exist, and the houses continue to be built by, or with the aid of, all men and women of the village. Altogether, the "aids" are of daily occurrence, and are continually called in for the cultivation of the fields, for harvesting, and so on. As to the skilled work, each community has its blacksmith, who enjoys his part of the communal land, and works for the community; when the tilling season approaches he visits every house, and repairs the tools and the ploughs, without expecting any pay, while the making of new ploughs is considered as a pious work which can by no means be recompensed in money, or by any other form of salary.

As the Kabyles already have private property, they evidently have both rich and poor among them. But like all people who closely live together, and know how poverty begins, they consider it as an accident which may visit every one. "Don't say that you will never wear the beggar's bag, nor go to prison," is a proverb of the Russian peasants; the Kabyles practise it, and no difference can be detected in the external behaviour between rich and poor; when the poor convokes an "aid," the rich man works in his field, just as the poor man does it reciprocally in his turn.(34) Moreover, the djemmaas set aside certain gardens and fields, sometimes cultivated in common, for the use of the poorest members. Many like customs continue to exist. As the poorer families would not be able to buy meat, meat is regularly bought with the money of the fines, or the gifts to the djemmaa, or the payments for the use of the communal olive-oil basins, and it is distributed in equal parts among those who cannot afford buying meat themselves. And when a sheep or a bullock is killed by a family for its own use on a day which is not a market day, the fact is announced in the streets by the village crier, in order that sick people and pregnant women may take of it what they want. Mutual support permeates the life of the Kabyles, and if one of them, during a journey abroad, meets with another Kabyle in need, he is bound to come to his aid, even at the risk of his own fortune and life; if this has not been done, the djemmaa of the man who has suffered from such neglect may lodge a complaint, and the djemmaa of the selfish man will at once make good the loss. We thus come across a custom which is familiar to the students of the mediaeval merchant guilds. Every stranger who enters a Kabyle village has right to housing in the winter, and his horses can always graze on the communal lands for twenty-four hours. But in case of need he can reckon upon an almost unlimited support. Thus, during the famine of 1867-68, the Kabyles received and fed every one who sought refuge in their villages, without distinction of origin. In the district of Dellys, no less than 12,000 people who came from all parts of Algeria, and even from Morocco, were fed in this way. While people died from starvation all over Algeria, there was not one single case of death due to this cause on Kabylian soil. The djemmaas, depriving themselves of necessaries, organized relief, without ever asking any aid from the Government, or uttering the slightest complaint; they considered it as a natural duty. And while among the European settlers all kind of police measures were taken to prevent thefts and disorder resulting from such an influx of strangers, nothing of the kind was required on the Kabyles'

territory: the djemmaas needed neither aid nor protection from without.(35)

I can only cursorily mention two other most interesting features of Kabyle life; namely, the anaya, or protection granted to wells, ca.n.a.ls, mosques, marketplaces, some roads, and so on, in case of war, and the cofs. In the anaya we have a series of inst.i.tutions both for diminishing the evils of war and for preventing conflicts. Thus the market-place is anaya, especially if it stands on a frontier and brings Kabyles and strangers together; no one dares disturb peace in the market, and if a disturbance arises, it is quelled at once by the strangers who have gathered in the market town. The road upon which the women go from the village to the fountain also is anaya in case of war; and so on. As to the cof it is a widely spread form of a.s.sociation, having some characters of the mediaeval Burgschaften or Gegilden, as well as of societies both for mutual protection and for various purposes--intellectual, political, and emotional--which cannot be satisfied by the territorial organization of the village, the clan, and the con federation. The cof knows no territorial limits; it recruits its members in various villages, even among strangers; and it protects them in all possible eventualities of life. Altogether, it is an attempt at supplementing the territorial grouping by an extra-territorial grouping intended to give an expression to mutual affinities of all kinds across the frontiers. The free international a.s.sociation 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 ill.u.s.trations 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 "cla.s.ses"), and thus giving a living ill.u.s.tration 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 const.i.tuted a feudal clan which now includes 12,000 households in three villages, and owns in common no less than twenty Georgian and Tartar villages. The conquerors divided their own land among their clans, and the clans divided it in equal parts among the families; but they did not interfere with the djemmaas of their tributaries which still practise the habit mentioned by Julius Caesar; namely, the djemmaa decides each year which part of the communal territory must be cultivated, and this land is divided into as many parts as there are families, and the parts are distributed by lot. It is worthy of note that although proletarians are of common occurrence among the Lezghines (who live under a system of private property in land, and common ownership of serfs(37)) they are rare among their Georgian serfs, who continue to hold their land in common. As to the customary law of the Caucasian mountaineers, it is much the same as that of the Longobards or Salic Franks, and several of its dispositions explain a good deal the judicial procedure of the barbarians of old. Being of a very impressionable character, they do their best to prevent quarrels from taking a fatal issue; so, with the Khevsoures, the swords are very soon drawn when a quarrel breaks out; but if a woman rushes out and throws among them the piece of linen which she wears on her head, the swords are at once returned to their sheaths, and the quarrel is appeased. The head-dress of the women is anaya. If a quarrel has not been stopped in time and has ended in murder, the compensation money is so considerable that the aggressor is entirely ruined for his life, unless he is adopted by the wronged family; and if he has resorted to his sword in a trifling quarrel and has inflicted wounds, he loses for ever the consideration of his kin. In all disputes, mediators take the matter in hand; they select from among the members of the clan the judges--six in smaller affairs, and from ten to fifteen in more serious matters--and Russian observers testify to the absolute incorruptibility of the judges. An oath has such a significance that men enjoying general esteem are dispensed from taking it: a simple affirmation is quite sufficient, the more so as in grave affairs the Khevsoure never hesitates to recognize his guilt (I mean, of course, the Khevsoure untouched yet by civilization). The oath is chiefly reserved for such cases, like disputes about property, which require some sort of appreciation in addition to a simple statement of facts; and in such cases the men whose affirmation will decide in the dispute, act with the greatest circ.u.mspection. 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 inst.i.tutions.(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 inst.i.tutions 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 inst.i.tutions 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 inst.i.tution 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 ill.u.s.trations would simply involve me in tedious repet.i.tions--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, a.s.sailed 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 inst.i.tution, which had naturally grown out of the preceding one--the clan--permitted the barbarians to pa.s.s through a most disturbed period of history without being broken into isolated families which would have succ.u.mbed in the struggle for life. New forms of culture developed under the new organization; agriculture attained the stage which it hardly has surpa.s.sed 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 ma.s.ses by the minorities whose powers grew in proportion to the growing facilities for private acc.u.mulation of wealth. This was the new form taken by the tendencies of the ma.s.ses 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. Sh.e.l.ls 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) Na.s.se, 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 pa.s.sionate interpretations of old texts are confined to himself.

4. The literature of the village community is so vast that but a few works can be named. Those of Sir Henry Maine, Mr. Seebohm, and Walter's Das alte Wallis (Bonn, 1859), are well-known popular sources of information about Scotland, Ireland, and Wales. For France, P. Viollet, Precis de l'histoire du droit francais. Droit prive, 1886, and several of his monographs in Bibl. de l'Ecole des Chartes; Babeau, Le Village sous l'ancien regime (the mir in the eighteenth century), third edition, 1887; Bonnemere, Doniol, etc. For Italy and Scandinavia, the chief works are named in Laveleye's Primitive Property, German version by K. Bucher.

For the Finns, Rein's Forelasningar, i. 16; Koskinen, Finnische Geschichte, 1874, and various monographs. For the Lives and Coures, Prof. Lutchitzky in Severnyi Vestnil, 1891. For the Teutons, besides the well-known works of Maurer, Sohm (Altdeutsche Reichs-und Gerichts-Verfa.s.sung), 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 t.i.tles 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 circ.u.mstances, 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. s...o...b.., 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 Verfa.s.sung 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 Markverfa.s.sung, 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.