With all that, inequalities of fortune rapidly develop among the Buryates, especially since the Russian Government is giving an exaggerated importance to their elected taishas (princes), whom it considers as responsible tax-collectors and representatives of the confederations in their administrative and even commercial relations with the Russians. The channels for the enrichment of the few are thus many, while the impoverishment of the great number goes hand in hand, through the appropriation of the Buryate lands by the Russians. But it is a habit with the Buryates, especially those of Kudinsk—and habit is more than law—that if a family has lost its cattle, the richer families give it some cows and horses that it may recover. As to the destitute man who has no family, he takes his meals in the huts of his congeners; he enters a hut, takes—by right, not for charity—his seat by the fire, and shares the meal which always is scrupulously divided into equal parts; he sleeps where he has taken his evening meal. Altogether, the Russian conquerors of Siberia were so much struck by the communistic practices of the Buryates, that they gave them the name of Bratskiye—"the Brotherly Ones"—and reported to Moscow. "With them everything is in common; whatever they have is shared in common." Even now, when the Lena Buryates sell their wheat, or send some of their cattle to be sold to a Russian butcher, the families of the oulous, or the tribe, put their wheat and cattle together, and sell it as a whole. Each oulous has, moreover, its grain store for loans in case of need, its communal baking oven (the four banal of the old French communities), and its blacksmith, who, like the blacksmith of the Indian communities,(31) being a member of the community, is never paid for his work within the community. He must make it for nothing, and if he utilizes his spare time for fabricating the small plates of chiselled and silvered iron which are used in Buryate land for the decoration of dress, he may occasionally sell them to a woman from another clan, but to the women of his own clan the attire is presented as a gift. Selling and buying cannot take place within the community, and the rule is so severe that when a richer family hires a labourer the labourer must be taken from another clan or from among the Russians. This habit is evidently not specific to the Buryates; it is so widely spread among the modern barbarians, Aryan and Ural-Altayan, that it must have been universal among our ancestors.
The feeling of union within the confederation is kept alive by the common interests of the tribes, their folkmotes, and the festivities which are usually kept in connection with the folkmotes. The same feeling is, however, maintained by another institution, the aba, or common hunt, which is a reminiscence of a very remote past. Every autumn, the forty-six clans of Kudinsk come together for such a hunt, the produce of which is divided among all the families. Moreover, national abas, to assert the unity of the whole Buryate nation, are convoked from time to time. In such cases, all Buryate clans which are scattered for hundreds of miles west and east of Lake Baikal, are bound to send their delegate hunters. Thousands of men come together, each one bringing provisions for a whole month. Every one's share must be equal to all the others, and therefore, before being put together, they are weighed by an elected elder (always "with the hand": scales would be a profanation of the old custom). After that the hunters divide into bands of twenty, and the parties go hunting according to a well-settled plan. In such abas the entire Buryate nation revives its epic traditions of a time when it was united in a powerful league. Let me add that such communal hunts are quite usual with the Red Indians and the Chinese on the banks of the Usuri (the kada).(32)
With the Kabyles, whose manners of life have been so well described by two French explorers,(33) we have barbarians still more advanced in agriculture. Their fields, irrigated and manured, are well attended to, and in the hilly tracts every available plot of land is cultivated by the spade. The Kabyles have known many vicissitudes in their history; they have followed for sometime the Mussulman law of inheritance, but, being adverse to it, they have returned, 150 years ago, to the tribal customary law of old. Accordingly, their land-tenure is of a mixed character, and private property in land exists side by side with communal possession. Still, the basis of their present organization is the village community, the thaddart, which usually consists of several joint families (kharoubas), claiming a community of origin, as well as of smaller families of strangers. Several villages are grouped into clans or tribes (arch); several tribes make the confederation (thak'ebilt); and several confederations may occasionally enter into a league, chiefly for purposes of armed defence.
The Kabyles know no authority whatever besides that of the djemmaa, or folkmote of the village community. All men of age take part in it, in the open air, or in a special building provided with stone seats. and the decisions of the djemmaa are evidently taken at unanimity: that is, the discussions continue until all present agree to accept, or to submit to, some decision. There being no authority in a village community to impose a decision, this system has been practised by mankind wherever there have been village communities, and it is practised still wherever they continue to exist, i.e. by several hundred million men all over the world. The djemmaa nominates its executive—the elder, the scribe, and the treasurer; it assesses its own taxes; and it manages the repartition of the common lands, as well as all kinds of works of public utility. A great deal of work is done in common: the roads, the mosques, the fountains, the irrigation canals, the towers erected for protection from robbers, the fences, and so on, are built by the village community; while the high-roads, the larger mosques, and the great market-places are the work of the tribe. Many traces of common culture continue to exist, and the houses continue to be built by, or with the aid of, all men and women of the village. Altogether, the "aids" are of daily occurrence, and are continually called in for the cultivation of the fields, for harvesting, and so on. As to the skilled work, each community has its blacksmith, who enjoys his part of the communal land, and works for the community; when the tilling season approaches he visits every house, and repairs the tools and the ploughs, without expecting any pay, while the making of new ploughs is considered as a pious work which can by no means be recompensed in money, or by any other form of salary.
As the Kabyles already have private property, they evidently have both rich and poor among them. But like all people who closely live together, and know how poverty begins, they consider it as an accident which may visit every one. "Don't say that you will never wear the beggar's bag, nor go to prison," is a proverb of the Russian peasants; the Kabyles practise it, and no difference can be detected in the external behaviour between rich and poor; when the poor convokes an "aid," the rich man works in his field, just as the poor man does it reciprocally in his turn.(34) Moreover, the djemmaas set aside certain gardens and fields, sometimes cultivated in common, for the use of the poorest members. Many like customs continue to exist. As the poorer families would not be able to buy meat, meat is regularly bought with the money of the fines, or the gifts to the djemmaa, or the payments for the use of the communal olive-oil basins, and it is distributed in equal parts among those who cannot afford buying meat themselves. And when a sheep or a bullock is killed by a family for its own use on a day which is not a market day, the fact is announced in the streets by the village crier, in order that sick people and pregnant women may take of it what they want. Mutual support permeates the life of the Kabyles, and if one of them, during a journey abroad, meets with another Kabyle in need, he is bound to come to his aid, even at the risk of his own fortune and life; if this has not been done, the djemmaa of the man who has suffered from such neglect may lodge a complaint, and the djemmaa of the selfish man will at once make good the loss. We thus come across a custom which is familiar to the students of the mediaeval merchant guilds. Every stranger who enters a Kabyle village has right to housing in the winter, and his horses can always graze on the communal lands for twenty-four hours. But in case of need he can reckon upon an almost unlimited support. Thus, during the famine of 1867-68, the Kabyles received and fed every one who sought refuge in their villages, without distinction of origin. In the district of Dellys, no less than 12,000 people who came from all parts of Algeria, and even from Morocco, were fed in this way. While people died from starvation all over Algeria, there was not one single case of death due to this cause on Kabylian soil. The djemmaas, depriving themselves of necessaries, organized relief, without ever asking any aid from the Government, or uttering the slightest complaint; they considered it as a natural duty. And while among the European settlers all kind of police measures were taken to prevent thefts and disorder resulting from such an influx of strangers, nothing of the kind was required on the Kabyles' territory: the djemmaas needed neither aid nor protection from without.(35)
I can only cursorily mention two other most interesting features of Kabyle life; namely, the anaya, or protection granted to wells, canals, mosques, marketplaces, some roads, and so on, in case of war, and the cofs. In the anaya we have a series of institutions both for diminishing the evils of war and for preventing conflicts. Thus the market-place is anaya, especially if it stands on a frontier and brings Kabyles and strangers together; no one dares disturb peace in the market, and if a disturbance arises, it is quelled at once by the strangers who have gathered in the market town. The road upon which the women go from the village to the fountain also is anaya in case of war; and so on. As to the cof it is a widely spread form of association, having some characters of the mediaeval Burgschaften or Gegilden, as well as of societies both for mutual protection and for various purposes—intellectual, political, and emotional—which cannot be satisfied by the territorial organization of the village, the clan, and the con federation. The cof knows no territorial limits; it recruits its members in various villages, even among strangers; and it protects them in all possible eventualities of life. Altogether, it is an attempt at supplementing the territorial grouping by an extra-territorial grouping intended to give an expression to mutual affinities of all kinds across the frontiers. The free international association of individual tastes and ideas, which we consider as one of the best features of our own life, has thus its origin in barbarian antiquity.
The mountaineers of Caucasia offer another extremely instructive field for illustrations of the same kind. In studying the present customs of the Ossetes—their joint families and communes and their judiciary conceptions—Professor Kovalevsky, in a remarkable work on Modern Custom and Ancient Law was enabled step by step to trace the similar dispositions of the old barbarian codes and even to study the origins of feudalism. With other Caucasian stems we occasionally catch a glimpse into the origin of the village community in those cases where it was not tribal but originated from a voluntary union between families of distinct origin. Such was recently the case with some Khevsoure villages, the inhabitants of which took the oath of "community and fraternity."(36) In another part of Caucasus, Daghestan, we see the growth of feudal relations between two tribes, both maintaining at the same time their village communities (and even traces of the gentile "classes"), and thus giving a living illustration of the forms taken by the conquest of Italy and Gaul by the barbarians. The victorious race, the Lezghines, who have conquered several Georgian and Tartar villages in the Zakataly district, did not bring them under the dominion of separate families; they constituted a feudal clan which now includes 12,000 households in three villages, and owns in common no less than twenty Georgian and Tartar villages. The conquerors divided their own land among their clans, and the clans divided it in equal parts among the families; but they did not interfere with the djemmaas of their tributaries which still practise the habit mentioned by Julius Caesar; namely, the djemmaa decides each year which part of the communal territory must be cultivated, and this land is divided into as many parts as there are families, and the parts are distributed by lot. It is worthy of note that although proletarians are of common occurrence among the Lezghines (who live under a system of private property in land, and common ownership of serfs(37)) they are rare among their Georgian serfs, who continue to hold their land in common. As to the customary law of the Caucasian mountaineers, it is much the same as that of the Longobards or Salic Franks, and several of its dispositions explain a good deal the judicial procedure of the barbarians of old. Being of a very impressionable character, they do their best to prevent quarrels from taking a fatal issue; so, with the Khevsoures, the swords are very soon drawn when a quarrel breaks out; but if a woman rushes out and throws among them the piece of linen which she wears on her head, the swords are at once returned to their sheaths, and the quarrel is appeased. The head-dress of the women is anaya. If a quarrel has not been stopped in time and has ended in murder, the compensation money is so considerable that the aggressor is entirely ruined for his life, unless he is adopted by the wronged family; and if he has resorted to his sword in a trifling quarrel and has inflicted wounds, he loses for ever the consideration of his kin. In all disputes, mediators take the matter in hand; they select from among the members of the clan the judges—six in smaller affairs, and from ten to fifteen in more serious matters— and Russian observers testify to the absolute incorruptibility of the judges. An oath has such a significance that men enjoying general esteem are dispensed from taking it: a simple affirmation is quite sufficient, the more so as in grave affairs the Khevsoure never hesitates to recognize his guilt (I mean, of course, the Khevsoure untouched yet by civilization). The oath is chiefly reserved for such cases, like disputes about property, which require some sort of appreciation in addition to a simple statement of facts; and in such cases the men whose affirmation will decide in the dispute, act with the greatest circumspection. Altogether it is certainly not a want of honesty or of respect to the rights of the congeners which characterizes the barbarian societies of Caucasus.
The stems of Africa offer such an immense variety of extremely interesting societies standing at all intermediate stages from the early village community to the despotic barbarian monarchies that I must abandon the idea of giving here even the chief results of a comparative study of their institutions.(38) Suffice it to say, that, even under the most horrid despotism of kings, the folkmotes of the village communities and their customary law remain sovereign in a wide circle of affairs. The law of the State allows the king to take any one's life for a simple caprice, or even for simply satisfying his gluttony; but the customary law of the people continues to maintain the same network of institutions for mutual support which exist among other barbarians or have existed among our ancestors. And with some better-favoured stems (in Bornu, Uganda, Abyssinia), and especially the Bogos, some of the dispositions of the customary law are inspired with really graceful and delicate feelings.
The village communities of the natives of both Americas have the same character. The Tupi of Brazil were found living in "long houses" occupied by whole clans which used to cultivate their corn and manioc fields in common. The Arani, much more advanced in civilization, used to cultivate their fields in common; so also the Oucagas, who had learned under their system of primitive communism and "long houses" to build good roads and to carry on a variety of domestic industries,(39) not inferior to those of the early medieval times in Europe. All of them were also living under the same customary law of which we have given specimens on the preceding pages. At another extremity of the world we find the Malayan feudalism, but this feudalism has been powerless to unroot the negaria, or village community, with its common ownership of at least part of the land, and the redistribution of land among the several negarias of the tribe.(40) With the Alfurus of Minahasa we find the communal rotation of the crops; with the Indian stem of the Wyandots we have the periodical redistribution of land within the tribe, and the clan-culture of the soil; and in all those parts of Sumatra where Moslem institutions have not yet totally destroyed the old organization we find the joint family (suka) and the village community (kota) which maintains its right upon the land, even if part of it has been cleared without its authorization.(41) But to say this, is to say that all customs for mutual protection and prevention of feuds and wars, which have been briefly indicated in the preceding pages as characteristic of the village community, exist as well. More than that: the more fully the communal possession of land has been maintained, the better and the gentler are the habits. De Stuers positively affirms that wherever the institution of the village community has been less encroached upon by the conquerors, the inequalities of fortunes are smaller, and the very prescriptions of the lex talionis are less cruel; while, on the contrary, wherever the village community has been totally broken up, "the inhabitants suffer the most unbearable oppression from their despotic rulers."(42) This is quite natural. And when Waitz made the remark that those stems which have maintained their tribal confederations stand on a higher level of development and have a richer literature than those stems which have forfeited the old bonds of union, he only pointed out what might have been foretold in advance.
More illustrations would simply involve me in tedious repetitions—so strikingly similar are the barbarian societies under all climates and amidst all races. The same process of evolution has been going on in mankind with a wonderful similarity. When the clan organization, assailed as it was from within by the separate family, and from without by the dismemberment of the migrating clans and the necessity of taking in strangers of different descent—the village community, based upon a territorial conception, came into existence. This new institution, which had naturally grown out of the preceding one— the clan—permitted the barbarians to pass through a most disturbed period of history without being broken into isolated families which would have succumbed in the struggle for life. New forms of culture developed under the new organization; agriculture attained the stage which it hardly has surpassed until now with the great number; the domestic industries reached a high degree of perfection. The wilderness was conquered, it was intersected by roads, dotted with swarms thrown off by the mother-communities. Markets and fortified centres, as well as places of public worship, were erected. The conceptions of a wider union, extended to whole stems and to several stems of various origin, were slowly elaborated. The old conceptions of justice which were conceptions of mere revenge, slowly underwent a deep modification—the idea of amends for the wrong done taking the place of revenge. The customary law which still makes the law of the daily life for two-thirds or more of mankind, was elaborated under that organization, as well as a system of habits intended to prevent the oppression of the masses by the minorities whose powers grew in proportion to the growing facilities for private accumulation of wealth. This was the new form taken by the tendencies of the masses for mutual support. And the progress—economical, intellectual, and moral—which mankind accomplished under this new popular form of organization, was so great that the States, when they were called later on into existence, simply took possession, in the interest of the minorities, of all the judicial, economical, and administrative functions which the village community already had exercised in the interest of all.
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.
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.
However, it lies beyond the scope of these essays to follow the gradual development of authority out of the elements just indicated. Historians, such as Mr. and Mrs. Green for this country, Augustin Thierry, Michelet, and Luchaire for France, Kaufmann, Janssen, W. Arnold, and even Nitzsch, for Germany, Leo and Botta for Italy, Byelaeff, Kostomaroff, and their followers for Russia, and many others, have fully told that tale. They have shown how populations, once free, and simply agreeing "to feed" a certain portion of their military defenders, gradually became the serfs of these protectors; how "commendation" to the Church, or to a lord, became a hard necessity for the freeman; how each lord's and bishop's castle became a robber's nest—how feudalism was imposed, in a word—and how the crusades, by freeing the serfs who wore the cross, gave the first impulse to popular emancipation. All this need not be retold in this place, our chief aim being to follow the constructive genius of the masses in their mutual-aid institutions.
At a time when the last vestiges of barbarian freedom seemed to disappear, and Europe, fallen under the dominion of thousands of petty rulers, was marching towards the constitution of such theocracies and despotic States as had followed the barbarian stage during the previous starts of civilization, or of barbarian monarchies, such as we see now in Africa, life in Europe took another direction. It went on on lines similar to those it had once taken in the cities of antique Greece. With a unanimity which seems almost incomprehensible, and for a long time was not understood by historians, the urban agglomerations, down to the smallest burgs, began to shake off the yoke of their worldly and clerical lords. The fortified village rose against the lord's castle, defied it first, attacked it next, and finally destroyed it. The movement spread from spot to spot, involving every town on the surface of Europe, and in less than a hundred years free cities had been called into existence on the coasts of the Mediterranean, the North Sea, the Baltic, the Atlantic Ocean, down to the fjords of Scandinavia; at the feet of the Apennines, the Alps, the Black Forest, the Grampians, and the Carpathians; in the plains of Russia, Hungary, France and Spain. Everywhere the same revolt took place, with the same features, passing through the same phases, leading to the same results. Wherever men had found, or expected to find, some protection behind their town walls, they instituted their "co-jurations," their "fraternities," their "friendships," united in one common idea, and boldly marching towards a new life of mutual support and liberty. And they succeeded so well that in three or four hundred years they had changed the very face of Europe. They had covered the country with beautiful sumptuous buildings, expressing the genius of free unions of free men, unrivalled since for their beauty and expressiveness; and they bequeathed to the following generations all the arts, all the industries, of which our present civilization, with all its achievements and promises for the future, is only a further development. And when we now look to the forces which have produced these grand results, we find them—not in the genius of individual heroes, not in the mighty organization of huge States or the political capacities of their rulers, but in the very same current of mutual aid and support which we saw at work in the village community, and which was vivified and reinforced in the Middle Ages by a new form of unions, inspired by the very same spirit but shaped on a new model—the guilds.
It is well known by this time that feudalism did not imply a dissolution of the village community. Although the lord had succeeded in imposing servile labour upon the peasants, and had appropriated for himself such rights as were formerly vested in the village community alone (taxes, mortmain, duties on inheritances and marriages), the peasants had, nevertheless, maintained the two fundamental rights of their communities: the common possession of the land, and self-jurisdiction. In olden times, when a king sent his vogt to a village, the peasants received him with flowers in one hand and arms in the other, and asked him—which law he intended to apply: the one he found in the village, or the one he brought with him? And, in the first case, they handed him the flowers and accepted him; while in the second case they fought him.(13) Now, they accepted the king's or the lord's official whom they could not refuse; but they maintained the folkmote's jurisdiction, and themselves nominated six, seven, or twelve judges, who acted with the lord's judge, in the presence of the folkmote, as arbiters and sentence-finders. In most cases the official had nothing left to him but to confirm the sentence and to levy the customary fred. This precious right of self-jurisdiction, which, at that time, meant self-administration and self-legislation, had been maintained through all the struggles; and even the lawyers by whom Karl the Great was surrounded could not abolish it; they were bound to confirm it. At the same time, in all matters concerning the community's domain, the folkmote retained its supremacy and (as shown by Maurer) often claimed submission from the lord himself in land tenure matters. No growth of feudalism could break this resistance; the village community kept its ground; and when, in the ninth and tenth centuries, the invasions of the Normans, the Arabs, and the Ugrians had demonstrated that military scholae were of little value for protecting the land, a general movement began all over Europe for fortifying the villages with stone walls and citadels. Thousands of fortified centres were then built by the energies of the village communities; and, once they had built their walls, once a common interest had been created in this new sanctuary—the town walls—they soon understood that they could henceforward resist the encroachments of the inner enemies, the lords, as well as the invasions of foreigners. A new life of freedom began to develop within the fortified enclosures. The medieval city was born.(14)
No period of history could better illustrate the constructive powers of the popular masses than the tenth and eleventh centuries, when the fortified villages and market-places, representing so many "oases amidst the feudal forest," began to free themselves from their lord's yoke, and slowly elaborated the future city organization; but, unhappily, this is a period about which historical information is especially scarce: we know the results, but little has reached us about the means by which they were achieved. Under the protection of their walls the cities' folkmotes—either quite independent, or led by the chief noble or merchant families—conquered and maintained the right of electing the military defensor and supreme judge of the town, or at least of choosing between those who pretended to occupy this position. In Italy the young communes were continually sending away their defensors or domini, fighting those who refused to go. The same went on in the East. In Bohemia, rich and poor alike (Bohemicae gentis magni et parvi, nobiles et ignobiles) took part in the election;(15) while, the vyeches (folkmotes) of the Russian cities regularly elected their dukes—always from the same Rurik family—covenanted with them, and sent the knyaz away if he had provoked discontent.(16) At the same time in most cities of Western and Southern Europe, the tendency was to take for defensor a bishop whom the city had elected itself. and so many bishops took the lead in protecting the "immunities" of the towns and in defending their liberties, that numbers of them were considered, after their death, as saints and special patrons of different cities. St. Uthelred of Winchester, St. Ulrik of Augsburg, St. Wolfgang of Ratisbon, St. Heribert of Cologne, St. Adalbert of Prague, and so on, as well as many abbots and monks, became so many cities' saints for having acted in defence of popular rights.(17) And under the new defensors, whether laic or clerical, the citizens conquered full self-jurisdiction and self-administration for their folkmotes.(18)
The whole process of liberation progressed by a series of imperceptible acts of devotion to the common cause, accomplished by men who came out of the masses—by unknown heroes whose very names have not been preserved by history. The wonderful movement of the God's peace (treuga Dei) by which the popular masses endeavoured to put a limit to the endless family feuds of the noble families, was born in the young towns, the bishops and the citizens trying to extend to the nobles the peace they had established within their town walls.(19) Already at that period, the commercial cities of Italy, and especially Amalfi (which had its elected consuls since 844, and frequently changed its doges in the tenth century)(20) worked out the customary maritime and commercial law which later on became a model for all Europe; Ravenna elaborated its craft organization, and Milan, which had made its first revolution in 980, became a great centre of commerce, its trades enjoying a full independence since the eleventh century.(21) So also Brugge and Ghent; so also several cities of France in which the Mahl or forum had become a quite independent institution.(22) And already during that period began the work of artistic decoration of the towns by works of architecture, which we still admire and which loudly testify of the intellectual movement of the times. "The basilicae were then renewed in almost all the universe," Raoul Glaber wrote in his chronicle, and some of the finest monuments of medieval architecture date from that period: the wonderful old church of Bremen was built in the ninth century, Saint Marc of Venice was finished in 1071, and the beautiful dome of Pisa in 1063. In fact, the intellectual movement which has been described as the Twelfth Century Renaissance(23) and the Twelfth Century Rationalism—the precursor of the Reform(24) date from that period, when most cities were still simple agglomerations of small village communities enclosed by walls.
However, another element, besides the village-community principle, was required to give to these growing centres of liberty and enlightenment the unity of thought and action, and the powers of initiative, which made their force in the twelfth and thirteenth centuries. With the growing diversity of occupations, crafts and arts, and with the growing commerce in distant lands, some new form of union was required, and this necessary new element was supplied by the guilds. Volumes and volumes have been written about these unions which, under the name of guilds, brotherhoods, friendships and druzhestva, minne, artels in Russia, esnaifs in Servia and Turkey, amkari in Georgia, and so on, took such a formidable development in medieval times and played such an important part in the emancipation of the cities. But it took historians more than sixty years before the universality of this institution and its true characters were understood. Only now, when hundreds of guild statutes have been published and studied, and their relationship to the Roman collegiae, and the earlier unions in Greece and in India,(25) is known, can we maintain with full confidence that these brotherhoods were but a further development of the same principles which we saw at work in the gens and the village community.
Nothing illustrates better these medieval brother hoods than those temporary guilds which were formed on board ships. When a ship of the Hansa had accomplished her first half-day passage after having left the port, the captain (Schiffer) gathered all crew and passengers on the deck, and held the following language, as reported by a contemporary:—
"'As we are now at the mercy of God and the waves,' he said, 'each one must be equal to each other. And as we are surrounded by storms, high waves, pirates and other dangers, we must keep a strict order that we may bring our voyage to a good end. That is why we shall pronounce the prayer for a good wind and good success, and, according to marine law, we shall name the occupiers of the judges' seats (Schoffenstellen).' Thereupon the crew elected a Vogt and four scabini, to act as their judges. At the end of the voyage the Vogt and the scabini. abdicated their functions and addressed the. 'What has happened on board ship, we crew as follows:—must pardon to each other and consider as dead (todt und ab sein lassen). What we have judged right, was for the sake of justice. This is why we beg you all, in the name of honest justice, to forget all the animosity one may nourish against another, and to swear on bread and salt that he will not think of it in a bad spirit. If any one, however, considers himself wronged, he must appeal to the land Vogt and ask justice from him before sunset.' On landing, the Stock with the fredfines was handed over to the Vogt of the sea-port for distribution among the poor."(26)
This simple narrative, perhaps better than anything else, depicts the spirit of the medieval guilds. Like organizations came into existence wherever a group of men—fishermen, hunters, travelling merchants, builders, or settled craftsmen— came together for a common pursuit. Thus, there was on board ship the naval authority of the captain; but, for the very success of the common enterprise, all men on board, rich and poor, masters and crew, captain and sailors, agreed to be equals in their mutual relations, to be simply men, bound to aid each other and to settle their possible disputes before judges elected by all of them. So also when a number of craftsmen—masons, carpenters, stone-cutters, etc.—came together for building, say, a cathedral, they all belonged to a city which had its political organization, and each of them belonged moreover to his own craft; but they were united besides by their common enterprise, which they knew better than any one else, and they joined into a body united by closer, although temporary, bonds; they founded the guild for the building of the cathedral.(27) We may see the same till now in the Kabylian. cof:(28) the Kabyles have their village community; but this union is not sufficient for all political, commercial, and personal needs of union, and the closer brotherhood of the cof is constituted.
As to the social characters of the medieval guild, any guild-statute may illustrate them. Taking, for instance, the skraa of some early Danish guild, we read in it, first, a statement of the general brotherly feelings which must reign in the guild; next come the regulations relative to self-jurisdiction in cases of quarrels arising between two brothers, or a brother and a stranger; and then, the social duties of the brethren are enumerated. If a brother's house is burned, or he has lost his ship, or has suffered on a pilgrim's voyage, all the brethren must come to his aid. If a brother falls dangerously ill, two brethren must keep watch by his bed till he is out of danger, and if he dies, the brethren must bury him—a great affair in those times of pestilences—and follow him to the church and the grave. After his death they must provide for his children, if necessary; very often the widow becomes a sister to the guild.(29)
These two leading features appeared in every brotherhood formed for any possible purpose. In each case the members treated each other as, and named each other, brother and sister;(30) all were equals before the guild. They owned some "chattel" (cattle, land, buildings, places of worship, or "stock") in common. All brothers took the oath of abandoning all feuds of old; and, without imposing upon each other the obligation of never quarrelling again, they agreed that no quarrel should degenerate into a feud, or into a law-suit before another court than the tribunal of the brothers themselves. And if a brother was involved in a quarrel with a stranger to the guild, they agreed to support him for bad and for good; that is, whether he was unjustly accused of aggression, or really was the aggressor, they had to support him, and to bring things to a peaceful end. So long as his was not a secret aggression—in which case he would have been treated as an outlaw—the brotherhood stood by him.(31) If the relatives of the wronged man wanted to revenge the offence at once by a new aggression, the brother-hood supplied him with a horse to run away, or with a boat, a pair of oars, a knife and a steel for striking light; if he remained in town, twelve brothers accompanied him to protect him; and in the meantime they arranged the composition. They went to court to support by oath the truthfulness of his statements, and if he was found guilty they did not let him go to full ruin and become a slave through not paying the due compensation: they all paid it, just as the gens did in olden times. Only when a brother had broken the faith towards his guild-brethren, or other people, he was excluded from the brotherhood "with a Nothing's name" (tha scal han maeles af brodrescap met nidings nafn).(32)
Such were the leading ideas of those brotherhoods which gradually covered the whole of medieval life. In fact, we know of guilds among all possible professions: guilds of serfs,(33) guilds of freemen, and guilds of both serfs and freemen; guilds called into life for the special purpose of hunting, fishing, or a trading expedition, and dissolved when the special purpose had been achieved; and guilds lasting for centuries in a given craft or trade. And, in proportion as life took an always greater variety of pursuits, the variety in the guilds grew in proportion. So we see not only merchants, craftsmen, hunters, and peasants united in guilds; we also see guilds of priests, painters, teachers of primary schools and universities, guilds for performing the passion play, for building a church, for developing the "mystery" of a given school of art or craft, or for a special recreation—even guilds among beggars, executioners, and lost women, all organized on the same double principle of self-jurisdiction and mutual support.(34) For Russia we have positive evidence showing that the very "making of Russia" was as much the work of its hunters', fishermen's, and traders' artels as of the budding village communities, and up to the present day the country is covered with artels.(35)
These few remarks show how incorrect was the view taken by some early explorers of the guilds when they wanted to see the essence of the institution in its yearly festival. In reality, the day of the common meal was always the day, or the morrow of the day, of election of aldermen, of discussion of alterations in the statutes, and very often the day of judgment of quarrels that had risen among the brethren,(36) or of renewed allegiance to the guild. The common meal, like the festival at the old tribal folkmote—the mahl or malum—or the Buryate aba, or the parish feast and the harvest supper, was simply an affirmation of brotherhood. It symbolized the times when everything was kept in common by the clan. This day, at least, all belonged to all; all sate at the same table and partook of the same meal. Even at a much later time the inmate of the almshouse of a London guild sat this day by the side of the rich alderman. As to the distinction which several explorers have tried to establish between the old Saxon "frith guild" and the so-called "social" or "religious" guilds—all were frith guilds in the sense above mentioned,(37) and all were religious in the sense in which a village community or a city placed under the protection of a special saint is social and religious. If the institution of the guild has taken such an immense extension in Asia, Africa, and Europe, if it has lived thousands of years, reappearing again and again when similar conditions called it into existence, it is because it was much more than an eating association, or an association for going to church on a certain day, or a burial club. It answered to a deeply inrooted want of human nature; and it embodied all the attributes which the State appropriated later on for its bureaucracy and police, and much more than that. It was an association for mutual support in all circumstances and in all accidents of life, "by deed and advise," and it was an organization for maintaining justice—with this difference from the State, that on all these occasions a humane, a brotherly element was introduced instead of the formal element which is the essential characteristic of State interference. Even when appearing before the guild tribunal, the guild-brother answered before men who knew him well and had stood by him before in their daily work, at the common meal, in the performance of their brotherly duties: men who were his equals and brethren indeed, not theorists of law nor defenders of some one else's interests.(38)
It is evident that an institution so well suited to serve the need of union, without depriving the individual of his initiative, could but spread, grow, and fortify. The difficulty was only to find such form as would permit to federate the unions of the guilds without interfering with the unions of the village communities, and to federate all these into one harmonious whole. And when this form of combination had been found, and a series of favourable circumstances permitted the cities to affirm their independence, they did so with a unity of thought which can but excite our admiration, even in our century of railways, telegraphs, and printing. Hundreds of charters in which the cities inscribed their liberation have reached us, and through all of them—notwithstanding the infinite variety of details, which depended upon the more or less greater fulness of emancipation—the same leading ideas run. The city organized itself as a federation of both small village communities and guilds.
"All those who belong to the friendship of the town"—so runs a charter given in 1188 to the burghesses of Aire by Philip, Count of Flanders—"have promised and confirmed by faith and oath that they will aid each other as brethren, in whatever is useful and honest. That if one commits against another an offence in words or in deeds, the one who has suffered there from will not take revenge, either himself or his people... he will lodge a complaint and the offender will make good for his offence, according to what will be pronounced by twelve elected judges acting as arbiters, And if the offender or the offended, after having been warned thrice, does not submit to the decision of the arbiters, he will be excluded from the friendship as a wicked man and a perjuror.(39)
"Each one of the men of the commune will be faithful to his con-juror, and will give him aid and advice, according to what justice will dictate him"—the Amiens and Abbeville charters say. "All will aid each other, according to their powers, within the boundaries of the Commune, and will not suffer that any one takes anything from any one of them, or makes one pay contributions"—do we read in the charters of Soissons, Compiegne, Senlis, and many others of the same type.(40) And so on with countless variations on the same theme.
"The Commune," Guilbert de Nogent wrote, "is an oath of mutual aid (mutui adjutorii conjuratio)... A new and detestable word. Through it the serfs (capite sensi) are freed from all serfdom; through it, they can only be condemned to a legally determined fine for breaches of the law; through it, they cease to be liable to payments which the serfs always used to pay."(41)
The same wave of emancipation ran, in the twelfth century, through all parts of the continent, involving both rich cities and the poorest towns. And if we may say that, as a rule, the Italian cities were the first to free themselves, we can assign no centre from which the movement would have spread. Very often a small burg in central Europe took the lead for its region, and big agglomerations accepted the little town's charter as a model for their own. Thus, the charter of a small town, Lorris, was adopted by eighty-three towns in south-west France, and that of Beaumont became the model for over five hundred towns and cities in Belgium and France. Special deputies were dispatched by the cities to their neighbours to obtain a copy from their charter, and the constitution was framed upon that model. However, they did not simply copy each other: they framed their own charters in accordance with the concessions they had obtained from their lords; and the result was that, as remarked by an historian, the charters of the medieval communes offer the same variety as the Gothic architecture of their churches and cathedrals. The same leading ideas in all of them—the cathedral symbolizing the union of parish and guild in the, city—and the same infinitely rich variety of detail.
Self-jurisdiction was the essential point, and self-jurisdiction meant self-administration. But the commune was not simply an "autonomous" part of the State—such ambiguous words had not yet been invented by that time—it was a State in itself. It had the right of war and peace, of federation and alliance with its neighbours. It was sovereign in its own affairs, and mixed with no others. The supreme political power could be vested entirely in a democratic forum, as was the case in Pskov, whose vyeche sent and received ambassadors, concluded treaties, accepted and sent away princes, or went on without them for dozens of years; or it was vested in, or usurped by, an aristocracy of merchants or even nobles, as was the case in hundreds of Italian and middle European cities. The principle, nevertheless, remained the same: the city was a State and—what was perhaps still more remarkable—when the power in the city was usurped by an aristocracy of merchants or even nobles, the inner life of the city and the democratism of its daily life did not disappear: they depended but little upon what may be called the political form of the State.
The secret of this seeming anomaly lies in the fact that a medieval city was not a centralized State. During the first centuries of its existence, the city hardly could be named a State as regards its interior organization, because the middle ages knew no more of the present centralization of functions than of the present territorial centralization. Each group had its share of sovereignty. The city was usually divided into four quarters, or into five to seven sections radiating from a centre, each quarter or section roughly corresponding to a certain trade or profession which prevailed in it, but nevertheless containing inhabitants of different social positions and occupations— nobles, merchants, artisans, or even half-serfs; and each section or quarter constituted a quite independent agglomeration. In Venice, each island was an independent political community. It had its own organized trades, its own commerce in salt, its own jurisdiction and administration, its own forum; and the nomination of a doge by the city changed nothing in the inner independence of the units.(42) In Cologne, we see the inhabitants divided into Geburschaften and Heimschaften (viciniae), i.e. neighbour guilds, which dated from the Franconian period. Each of them had its judge (Burrichter) and the usual twelve elected sentence-finders (Schoffen), its Vogt, and its greve or commander of the local militia.(43) The story of early London before the Conquest—Mr. Green says—is that "of a number of little groups scattered here and there over the area within the walls, each growing up with its own life and institutions, guilds, sokes, religious houses and the like, and only slowly drawing together into a municipal union."(44) And if we refer to the annals of the Russian cities, Novgorod and Pskov, both of which are relatively rich in local details, we find the section (konets) consisting of independent streets (ulitsa), each of which, though chiefly peopled with artisans of a certain craft, had also merchants and landowners among its inhabitants, and was a separate community. It had the communal responsibility of all members in case of crime, its own jurisdiction and administration by street aldermen (ulichanskiye starosty), its own seal and, in case of need, its own forum; its own militia, as also its self-elected priests and its, own collective life and collective enterprise.(45)
The medieval city thus appears as a double federation: of all householders united into small territorial unions—the street, the parish, the section—and of individuals united by oath into guilds according to their professions; the former being a produce of the village-community origin of the city, while the second is a subsequent growth called to life by new conditions.
To guarantee liberty, self-administration, and peace was the chief aim of the medieval city. and labour, as we shall presently see when speaking of the craft guilds, was its chief foundation. But "production" did not absorb the whole attention of the medieval economist. With his practical mind, he understood that "consumption" must be guaranteed in order to obtain production; and therefore, to provide for "the common first food and lodging of poor and rich alike" (gemeine notdurft und gemach armer und richer(46)) was the fundamental principle in each city. The purchase of food supplies and other first necessaries (coal, wood, etc.) before they had reached the market, or altogether in especially favourable conditions from which others would be excluded—the preempcio, in a word—was entirely prohibited. Everything had to go to the market and be offered there for every one's purchase, till the ringing of the bell had closed the market. Then only could the retailer buy the remainder, and even then his profit should be an "honest profit" only.(47) Moreover, when corn was bought by a baker wholesale after the close of the market, every citizen had the right to claim part of the corn (about half-a-quarter) for his own use, at wholesale price, if he did so before the final conclusion of the bargain; and reciprocally, every baker could claim the same if the citizen purchased corn for re-selling it. In the first case, the corn had only to be brought to the town mill to be ground in its proper turn for a settled price, and the bread could be baked in the four banal, or communal oven.(48) In short, if a scarcity visited the city, all had to suffer from it more or less; but apart from the calamities, so long as the free cities existed no one could die in their midst from starvation, as is unhappily too often the case in our own times.
However, all such regulations belong to later periods of the cities' life, while at an earlier period it was the city itself which used to buy all food supplies for the use of the citizens. The documents recently published by Mr. Gross are quite positive on this point and fully support his conclusion to the effect that the cargoes of subsistences "were purchased by certain civic officials in the name of the town, and then distributed in shares among the merchant burgesses, no one being allowed to buy wares landed in the port unless the municipal authorities refused to purchase them. This seem—she adds—to have been quite a common practice in England, Ireland, Wales and Scotland."(49) Even in the sixteenth century we find that common purchases of corn were made for the "comoditie and profitt in all things of this.... Citie and Chamber of London, and of all the Citizens and Inhabitants of the same as moche as in us lieth"—as the Mayor wrote in 1565.(50) In Venice, the whole of the trade in corn is well known to have been in the hands of the city; the "quarters," on receiving the cereals from the board which administrated the imports, being bound to send to every citizen's house the quantity allotted to him.(51) In France, the city of Amiens used to purchase salt and to distribute it to all citizens at cost price;(52) and even now one sees in many French towns the halles which formerly were municipal depots for corn and salt.(53) In Russia it was a regular custom in Novgorod and Pskov.
The whole matter relative to the communal purchases for the use of the citizens, and the manner in which they used to be made, seems not to have yet received proper attention from the historians of the period; but there are here and there some very interesting facts which throw a new light upon it. Thus there is, among Mr. Gross's documents, a Kilkenny ordinance of the year 1367, from which we learn how the prices of the goods were established. "The merchants and the sailors," Mr. Gross writes, "were to state on oath the first cost of the goods and the expenses of transportation. Then the mayor of the town and two discreet men were to name the price at which the wares were to be sold." The same rule held good in Thurso for merchandise coming "by sea or land." This way of "naming the price" so well answers to the very conceptions of trade which were current in medieval times that it must have been all but universal. To have the price established by a third person was a very old custom; and for all interchange within the city it certainly was a widely-spread habit to leave the establishment of prices to "discreet men"— to a third party—and not to the vendor or the buyer. But this order of things takes us still further back in the history of trade—namely, to a time when trade in staple produce was carried on by the whole city, and the merchants were only the commissioners, the trustees, of the city for selling the goods which it exported. A Waterford ordinance, published also by Mr. Gross, says "that all manere of marchandis what so ever kynde thei be of... shal be bought by the Maire and balives which bene commene biers [common buyers, for the town] for the time being, and to distribute the same on freemen of the citie (the propre goods of free citisains and inhabitants only excepted)." This ordinance can Hardly be explained otherwise than by admitting that all the exterior trade of the town was carried on by its agents. Moreover, we have direct evidence of such having been the case for Novgorod and Pskov. It was the Sovereign Novgorod and the Sovereign Pskov who sent their caravans of merchants to distant lands.
We know also that in nearly all medieval cities of Middle and Western Europe, the craft guilds used to buy, as a body, all necessary raw produce, and to sell the produce of their work through their officials, and it is hardly possible that the same should not have been done for exterior trade—the more so as it is well known that up to the thirteenth century, not only all merchants of a given city were considered abroad as responsible in a body for debts contracted by any one of them, but the whole city as well was responsible for the debts of each one of its merchants. Only in the twelfth and thirteenth century the towns on the Rhine entered into special treaties abolishing this responsibility.(54) And finally we have the remarkable Ipswich document published by Mr. Gross, from which document we learn that the merchant guild of this town was constituted by all who had the freedom of the city, and who wished to pay their contribution ("their hanse") to the guild, the whole community discussing all together how better to maintain the merchant guild, and giving it certain privileges. The merchant guild of Ipswich thus appears rather as a body of trustees of the town than as a common private guild.
In short, the more we begin to know the mediaeval city the more we see that it was not simply a political organization for the protection of certain political liberties. It was an attempt at organizing, on a much grander scale than in a village community, a close union for mutual aid and support, for consumption and production, and for social life altogether, without imposing upon men the fetters of the State, but giving full liberty of expression to the creative genius of each separate group of individuals in art, crafts, science, commerce, and political organization. How far this attempt has been successful will be best seen when we have analyzed in the next chapter the organization of labour in the medieval city and the relations of the cities with the surrounding peasant population.
1. W. Arnold, in his Wanderungen und Ansiedelungen der deutschen Stamme, p. 431, even maintains that one-half of the now arable area in middle Germany must have been reclaimed from the sixth to the ninth century. Nitzsch (Geschichte des deutschen Volkes, Leipzig, 1883, vol. i.) shares the same opinion.
2. Leo and Botta, Histoire d'Italie, French edition, 1844, t. i., p. 37.
3. The composition for the stealing of a simple knife was 15 solidii and of the iron parts of a mill, 45 solidii (See on this subject Lamprecht's Wirthschaft und Recht der Franken in Raumer's Historisches Taschenbuch, 1883, p. 52.) According to the Riparian law, the sword, the spear, and the iron armour of a warrior attained the value of at least twenty-five cows, or two years of a freeman's labour. A cuirass alone was valued in the Salic law (Desmichels, quoted by Michelet) at as much as thirty-six bushels of wheat.
4. The chief wealth of the chieftains, for a long time, was in their personal domains peopled partly with prisoner slaves, but chiefly in the above way. On the origin of property see Inama Sternegg's Die Ausbildung der grossen Grundherrschaften in Deutschland, in Schmoller's Forschungen, Bd. I., 1878; F. Dahn's Urgeschichte der germanischen und romanischen Volker, Berlin, 1881; Maurer's Dorfverfassung; Guizot's Essais sur l'histoire de France; Maine's Village Community; Botta's Histoire d'Italie; Seebohm, Vinogradov, J. R. Green, etc.
5. See Sir Henry Maine's International Law, London, 1888.
6. Ancient Laws of Ireland, Introduction; E. Nys, Etudes de droit international, t. i., 1896, pp. 86 seq. Among the Ossetes the arbiters from three oldest villages enjoy a special reputation (M. Kovalevsky's Modern Custom and Old Law, Moscow, 1886, ii. 217, Russian).
7. It is permissible to think that this conception (related to the conception of tanistry) played an important part in the life of the period; but research has not yet been directed that way.
1. It was distinctly stated in the charter of St. Quentin of the year 1002 that the ransom for houses which had to be demolished for crimes went for the city walls. The same destination was given to the Ungeld in German cities. At Pskov the cathedral was the bank for the fines, and from this fund money was taken for the wails.
2. Sohm, Frankische Rechtsund Gerichtsverfassung, p. 23; also Nitzsch, Geschechte des deutschen Volkes, i. 78.
10. See the excellent remarks on this subject in Augustin Thierry's Lettres sur l'histoire de France. 7th Letter. The barbarian translations of parts of the Bible are extremely instructive on this point.
11. Thirty-six times more than a noble, according to the Anglo-Saxon law. In the code of Rothari the slaying of a king is, however, punished by death; but (apart from Roman influence) this new disposition was introduced (in 646) in the Lombardian law— as remarked by Leo and Botta—to cover the king from blood revenge. The king being at that time the executioner of his own sentences (as the tribe formerly was of its own sentences), he had to be protected by a special disposition, the more so as several Lombardian kings before Rothari had been slain in succession (Leo and Botta, l.c., i. 66-90).
12. Kaufmann, Deutsche Geschichte, Bd. I. "Die Germanen der Urzeit," p. 133.
13. Dr. F. Dahn, Urgeschichte der germanischen und romanischen Volker, Berlin, 1881, Bd. I. 96.
14. If I thus follow the views long since advocated by Maurer (Geschichte der Stadteverfassung in Deutschland, Erlangen, 1869), it is because he has fully proved the uninterrupted evolution from the village community to the mediaeval city, and that his views alone can explain the universality of the communal movement. Savigny and Eichhorn and their followers have certainly proved that the traditions of the Roman municipia had never totally disappeared. But they took no account of the village community period which the barbarians lived through before they had any cities. The fact is, that whenever mankind made a new start in civilization, in Greece, Rome, or middle Europe, it passed through the same stages—the tribe, the village community, the free city, the state—each one naturally evolving out of the preceding stage. Of course, the experience of each preceding civilization was never lost. Greece (itself influenced by Eastern civilizations) influenced Rome, and Rome influenced our civilization; but each of them begin from the same beginning—the tribe. And just as we cannot say that our states are continuations of the Roman state, so also can we not say that the mediaeval cities of Europe (including Scandinavia and Russia) were a continuation of the Roman cities. They were a continuation of the barbarian village community, influenced to a certain extent by the traditions of the Roman towns.
15. M. Kovalevsky, Modern Customs and Ancient Laws of Russia (Ilchester Lectures, London, 1891, Lecture 4).
16. A considerable amount of research had to be done before this character of the so-called udyelnyi period was properly established by the works of Byelaeff (Tales from Russian History), Kostomaroff (The Beginnings of Autocracy in Russia), and especially Professor Sergievich (The Vyeche and the Prince). The English reader may find some information about this period in the just-named work of M. Kovalevsky, in Rambaud's History of Russia, and, in a short summary, in the article "Russia" of the last edition of Chambers's Encyclopaedia.
17. Ferrari, Histoire des revolutions d'Italie, i. 257; Kallsen, Die deutschen Stadte im Mittelalter, Bd. I. (Halle, 1891).
18. See the excellent remarks of Mr. G.L. Gomme as regards the folkmote of London (The Literature of Local Institutions, London, 1886, p. 76). It must, however, be remarked that in royal cities the folkmote never attained the independence which it assumed elsewhere. It is even certain that Moscow and Paris were chosen by the kings and the Church as the cradles of the future royal authority in the State, because they did not possess the tradition of folkmotes accustomed to act as sovereign in all matters.
19. A. Luchaire, Les Communes francaises; also Kluckohn, Geschichte des Gottesfrieden, 1857. L. Semichon (La paix et la treve de Dieu, 2 vols., Paris, 1869) has tried to represent the communal movement as issued from that institution. In reality, the treuga Dei, like the league started under Louis le Gros for the defence against both the robberies of the nobles and the Norman invasions, was a thoroughly popular movement. The only historian who mentions this last league—that is, Vitalis— describes it as a "popular community" ("Considerations sur l'histoire de France," in vol. iv. of Aug. Thierry's OEuvres, Paris, 1868, p. 191 and note).
20. Ferrari, i. 152, 263, etc.
21. Perrens, Histoire de Florence, i. 188; Ferrari, l.c., i. 283.
22. Aug. Thierry, Essai sur l'histoire du Tiers Etat, Paris, 1875, p. 414, note.
23. F. Rocquain, "La Renaissance au XIIe siecle," in Etudes sur l'histoire de France, Paris, 1875, pp. 55-117.