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;128 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.129 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.130 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.131 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.132
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
