When the European traveller lands in some small island of the Pacific, and, seeing at a distance a grove of palm trees, walks in that direction, he is astonished to discover that the little villages are connected by roads paved with big stones, quite comfortable for the unshod natives, and very similar to the "old roads" of the Swiss mountains. Such roads were traced by the "barbarians" all over Europe, and one must have travelled in wild, thinly-peopled countries, far away from the chief lines of communication, to realize in full the immense work that must have been performed by the barbarian communities in order to conquer the woody and marshy wilderness which Europe was some two thousand years ago. Isolated families, having no tools, and weak as they were, could not have conquered it; the wilderness would have overpowered them. Village communities alone, working in common, could master the wild forests, the sinking marshes, and the endless steppes. The rough roads, the ferries, the wooden bridges taken away in the winter and rebuilt after the spring flood was over, the fences and the palisaded walls of the villages, the earthen forts and the small towers with which the territory was dottedall these were the work of the barbarian communities. And when a community grew numerous it used to throw off a new bud. A new community arose at a distance, thus step by step bringing the woods and the steppes under the dominion of man. The whole making of European nations was such a budding of the village communities. Even now-a-days the Russian peasants, if they are not quite broken down by misery, migrate in communities, and they till the soil and build the houses in com mon when they settle on the banks of the Amur, or in Manitoba. And even the English, when they first began to colonize America, used to return to the old system; they grouped into village communities.(14)
The village community was the chief arm of the barbarians in their hard struggle against a hostile nature. It also was the bond they opposed to oppression by the cunningest and the strongest which so easily might have developed during those disturbed times. The imaginary barbarian—the man who fights and kills at his mere caprice—existed no more than the "bloodthirsty" savage. The real barbarian was living, on the contrary, under a wide series of institutions, imbued with considerations as to what may be useful or noxious to his tribe or confederation, and these institutions were piously handed down from generation to generation in verses and songs, in proverbs or triads, in sentences and instructions. The more we study them the more we recognize the narrow bonds which united men in their villages. Every quarrel arising between two individuals was treated as a communal affair—even the offensive words that might have been uttered during a quarrel being considered as an offence to the community and its ancestors. They had to be repaired by amends made both to the individual and the community;(15) and if a quarrel ended in a fight and wounds, the man who stood by and did not interpose was treated as if he himself had inflicted the wounds.(16) The judicial procedure was imbued with the same spirit. Every dispute was brought first before mediators or arbiters, and it mostly ended with them, the arbiters playing a very important part in barbarian society. But if the case was too grave to be settled in this way, it came before the folkmote, which was bound "to find the sentence," and pronounced it in a conditional form; that is, "such compensation was due, if the wrong be proved," and the wrong had to be proved or disclaimed by six or twelve persons confirming or denying the fact by oath; ordeal being resorted to in case of contradiction between the two sets of jurors. Such procedure, which remained in force for more than two thousand years in succession, speaks volumes for itself; it shows how close were the bonds between all members of the community. Moreover, there was no other authority to enforce the decisions of the folkmote besides its own moral authority. The only possible menace was that the community might declare the rebel an outlaw, but even this menace was reciprocal. A man discontented with the folkmote could declare that he would abandon the tribe and go over to another tribe—a most dreadful menace, as it was sure to bring all kinds of misfortunes upon a tribe that might have been unfair to one of its members.(17) A rebellion against a right decision of the customary law was simply "inconceivable," as Henry Maine has so well said, because "law, morality, and fact" could not be separated from each other in those times.(18) The moral authority of the commune was so great that even at a much later epoch, when the village communities fell into submission to the feudal lord, they maintained their judicial powers; they only permitted the lord, or his deputy, to "find" the above conditional sentence in accordance with the customary law he had sworn to follow, and to levy for himself the fine (the fred) due to the commune. But for a long time, the lord himself, if he remained a co-proprietor in the waste land of the commune, submitted in communal affairs to its decisions. Noble or ecclesiastic, he had to submit to the folkmote—Wer daselbst Wasser und Weid genusst, muss gehorsam sein—"Who enjoys here the right of water and pasture must obey"—was the old saying. Even when the peasants became serfs under the lord, he was bound to appear before the folkmote when they summoned him.(19)
In their conceptions of justice the barbarians evidently did not much differ from the savages. They also maintained the idea that a murder must be followed by putting the murderer to death; that wounds had to be punished by equal wounds, and that the wronged family was bound to fulfil the sentence of the customary law. This was a holy duty, a duty towards the ancestors, which had to be accomplished in broad daylight, never in secrecy, and rendered widely known. Therefore the most inspired passages of the sagas and epic poetry altogether are those which glorify what was supposed to be justice. The gods themselves joined in aiding it. However, the predominant feature of barbarian justice is, on the one hand, to limit the numbers of persons who may be involved in a feud, and, on the other hand, to extirpate the brutal idea of blood for blood and wounds for wounds, by substituting for it the system of compensation. The barbarian codes which were collections of common law rules written down for the use of judges—"first permitted, then encouraged, and at last enforced," compensation instead of revenge.(20) The compensation has, however, been totally misunderstood by those who represented it as a fine, and as a sort of carte blanche given to the rich man to do whatever he liked. The compensation money (wergeld), which was quite different from the fine or fred,(21) was habitually so high for all kinds of active offences that it certainly was no encouragement for such offences. In case of a murder it usually exceeded all the possible fortune of the murderer "Eighteen times eighteen cows" is the compensation with the Ossetes who do not know how to reckon above eighteen, while with the African tribes it attains 800 cows or 100 camels with their young, or 416 sheep in the poorer tribes.(22) In the great majority of cases, the compensation money could not be paid at all, so that the murderer had no issue but to induce the wronged family, by repentance, to adopt him. Even now, in the Caucasus, when feuds come to an end, the offender touches with his lips the breast of the oldest woman of the tribe, and becomes a "milk-brother" to all men of the wronged family.(23) With several African tribes he must give his daughter, or sister, in marriage to some one of the family; with other tribes he is bound to marry the woman whom he has made a widow; and in all cases he becomes a member of the family, whose opinion is taken in all important family matters.(24)
Far from acting with disregard to human life, the barbarians, moreover, knew nothing of the horrid punishments introduced at a later epoch by the laic and canonic laws under Roman and Byzantine influence. For, if the Saxon code admitted the death penalty rather freely even in cases of incendiarism and armed robbery, the other barbarian codes pronounced it exclusively in cases of betrayal of one's kin, and sacrilege against the community's gods, as the only means to appease the gods.
All this, as seen is very far from the supposed "moral dissoluteness" of the barbarians. On the contrary, we cannot but admire the deeply moral principles elaborated within the early village communities which found their expression in Welsh triads, in legends about King Arthur, in Brehon commentaries,(25) in old German legends and so on, or find still their expression in the sayings of the modern barbarians. In his introduction to The Story of Burnt Njal, George Dasent very justly sums up as follows the qualities of a Northman, as they appear in the sagas:—
To do what lay before him openly and like a man, without fear of either foes, fiends, or fate; … to be free and daring in all his deeds; to be gentle and generous to his friends and kinsmen; to be stern and grim to his foes [those who are under the lex talionis], but even towards them to fulfil all bounden duties…. To be no truce-breaker, nor tale-bearer, nor backbiter. To utter nothing against any man that he would not dare to tell him to his face. To turn no man from his door who sought food or shelter, even though he were a foe.(26)
The same or still better principles permeate the Welsh epic poetry and triads. To act "according to the nature of mildness and the principles of equity," without regard to the foes or to the friends, and "to repair the wrong," are the highest duties of man; "evil is death, good is life," exclaims the poet legislator.(27) "The World would be fool, if agreements made on lips were not honourable"—the Brehon law says. And the humble Shamanist Mordovian, after having praised the same qualities, will add, moreover, in his principles of customary law, that "among neighbours the cow and the milking-jar are in common;" that, "the cow must be milked for yourself and him who may ask milk;" that "the body of a child reddens from the stroke, but the face of him who strikes reddens from shame;"(28) and so on. Many pages might be filled with like principles expressed and followed by the "barbarians."
One feature more of the old village communities deserves a special mention. It is the gradual extension of the circle of men embraced by the feelings of solidarity. Not only the tribes federated into stems, but the stems as well, even though of different origin, joined together in confederations. Some unions were so close that, for instance, the Vandals, after part of their confederation had left for the Rhine, and thence went over to Spain and Africa, respected for forty consecutive years the landmarks and the abandoned villages of their confederates, and did not take possession of them until they had ascertained through envoys that their confederates did not intend to return. With other barbarians, the soil was cultivated by one part of the stem, while the other part fought on or beyond the frontiers of the common territory. As to the leagues between several stems, they were quite habitual. The Sicambers united with the Cherusques and the Sueves, the Quades with the Sarmates; the Sarmates with the Alans, the Carpes, and the Huns. Later on, we also see the conception of nations gradually developing in Europe, long before anything like a State had grown in any part of the continent occupied by the barbarians. These nations—for it is impossible to refuse the name of a nation to the Merovingian France, or to the Russia of the eleventh and twelfth century—were nevertheless kept together by nothing else but a community of language, and a tacit agreement of the small republics to take their dukes from none but one special family.
Wars were certainly unavoidable; migration means war; but Sir Henry Maine has already fully proved in his remarkable study of the tribal origin of International Law, that "Man has never been so ferocious or so stupid as to submit to such an evil as war without some kind of effort to prevent it," and he has shown how exceedingly great is "the number of ancient institutions which bear the marks of a design to stand in the way of war, or to provide an alternative to it."(29) In reality, man is so far from the warlike being he is supposed to be, that when the barbarians had once settled they so rapidly lost the very habits of warfare that very soon they were compelled to keep special dukes followed by special scholae or bands of warriors, in order to protect them from possible intruders. They preferred peaceful toil to war, the very peacefulness of man being the cause of the specialization of the warrior's trade, which specialization resulted later on in serfdom and in all the wars of the "States period" of human history.
History finds great difficulties in restoring to life the institutions of the barbarians. At every step the historian meets with some faint indication which he is unable to explain with the aid of his own documents only. But a broad light is thrown on the past as soon as we refer to the institutions of the very numerous tribes which are still living under a social organization almost identical with that of our barbarian ancestors. Here we simply have the difficulty of choice, because the islands of the Pacific, the steppes of Asia, and the tablelands of Africa are real historical museums containing specimens of all possible intermediate stages which mankind has lived through, when passing from the savage gentes up to the States' organization. Let us, then, examine a few of those specimens.