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 A11thing, or national folkmote, a lövsögmathr 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 crew as follows:—'What has happened on board ship, we 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)