The oldest Celtic laws which have been preserved show the gens still fully alive: in Ireland, after being forcibly broken up by the English, it still lives today in the consciousness of the people, as an instinct at any rate; in Scotland it was still in full strength in the middle of the eighteenth century, and here again it succumbed only to the weapons, laws, and courts of the English. The old Welsh laws, which were recorded in writing several centuries before the English conquest, at the latest in the eleventh century, still show common tillage of the soil by whole villages, even if only as an exceptional relic of a once general custom; each family had five acres for its own cultivation; a piece of land was cultivated collectively as well and the yield shared. In view of the analogy of Ireland and Scotland, it cannot be doubted that these village communities represent gentes or subdivisions of gentes, even though further examination of the Welsh laws, which I cannot undertake for lack of time (my notes date from 1869), should not provide direct proof. But what is directly proved by the Welsh sources and by the Irish is that among the Celts in the eleventh century pairing marriage had not by any means been displaced by monogamy. In Wales a marriage only became indissoluble, or rather it only ceased to be terminable by notification, after seven years had elapsed. If the time was short of seven years by only three nights, husband and wife could separate. They then shared out their property between them; the woman divided and the man chose. The furniture was divided according to fixed and very humorous rules. If it was the man who dissolved the marriage, he had to give the woman back her dowry and some other things; if it was the woman, she received less. Of the children the man took two and the woman one, the middle child. If after the separation the woman took another husband and the first husband came to fetch her back again, she had to follow him even if she had already one foot in her new marriage bed. If, on the other hand, the man and woman had been together for seven years, they were husband and wife, even without any previous formal marriage. Chastity of girls before marriage was not at all strictly observed, nor was it demanded; the provisions in this respect are of an extremely frivolous character and not at all in keeping with bourgeois morality. If a woman committed adultery, the husband had the right to beat her (this was one of the three occasions when he was allowed to do so; otherwise he was punished), but not then to demand any other satisfaction, since for the one offense there shall be either atonement or vengeance, but not both. The grounds on which the wife could demand divorce without losing any of her claims in the subsequent settlement were very comprehensive; if the husband had bad breath, it was enough. The money which had to be paid to the chief of the tribe or king to buy off his right of the first night (gobr merch, whence the medieval name, marcheta; French marquette), plays a large part in the code of laws. The women had the right to vote in the assemblies of the people. When we add that the evidence shows similar conditions in Ireland; that there, also, temporary marriages were quite usual and that at the separation very favorable and exactly defined conditions were assured to the woman, including even compensation for her domestic services; that in Ireland there was a first wife as well as other wives, and that in the division of an inheritance no distinction was made between children born in wedlock or outside it we then have a picture of pairing marriage in comparison with which the form of marriage observed in North America appears strict. This is not surprising in the eleventh century among a people who even so late as Caesar s time were still living in group marriage. The existence of the Irish gens (sept; the tribe was called clainne, clan) is confirmed and described not only by the old legal codes, but also by the English jurists of the seventeenth century who were sent over to transform the clan lands into domains of the English crown. Until then, the land had been the common property of the clan or gens, in so far as the chieftains had not already converted it into their private domains. When a member of the gens died and a household consequently came to an end, the gentile chief (the English jurists called him caput cognationis) made a new division of the whole territory among the remaining households. This must have been done, broadly speaking, according to the rules in force in Germany. Forty or fifty years ago village fields were very numerous, and even today a few of these rundales, as they are called, may still be found. The peasants of a rundale, now individual tenants on the soil that had been the common property of the gens till it was seized by the English conquerors, pay rent for their respective piece of land, but put all their shares in arable and meadowland together, which they then divide according to position and quality into Gewanne, as they are called on the Moselle, each receiving a share in each Gewann; moorland and pasture-land are used in common. Only fifty years ago new divisions were still made from time to time, sometimes annually. The field-map of such a village looks exactly like that of a German Geh ferschaft [peasant community] on the Moselle or in the Mittelwald. The gens also lives on in the factions. The Irish peasants often divide themselves into parties based apparently on perfectly absurd or meaningless distinctions; to the English they are quite incomprehensible and seem to have no other purpose than the favorite ceremony of two factions hammering one another. They are artificial revivals, modern substitutes for the dispersed gentes, manifesting in their own peculiar manner the persistence of the inherited gentile instinct. In some districts the members of the gens still live pretty much together on the old territory; in the thirties the great majority of the inhabitants of County Monaghan still had only four family names, that is, they were descended from four gentes or clans.  In Scotland the decay of the gentile organization dates from the suppression of the rising of 1745. The precise function of the Scottish clan in this organization still awaits investigation; but that the clan is a gentile body is beyond doubt. In Walter Scott's novels the Highland clan lives before our eyes. It is, says Morgan: But that formerly mother-right prevailed in Scotland is proved by the fact that, according to Bede, in the royal family of the Picts succession was in the female line. Among the Scots, as among the Welsh, a relic even of the punaluan family persisted into the Middle Ages in the form of the right of the first night, which the head of the clan or the king, as last representative of the former community of husbands, had the right to exercise with every bride, unless it was compounded for money. That the Germans were organized in gentes until the time of the migrations is beyond all doubt. They can have occupied the territory between the Danube, Rhine, Vistula, and the northern seas only a few centuries before our era; the Cimbri and Teutons were then still in full migration, and the Suevi did not find any permanent habitation until Caesar's time. Caesar expressly states of them that they had settled in gentes and kindreds (gentibus cognationtbusque), and in the mouth of a Roman of the Julian gens the word gentibus has a definite meaning which cannot be argued away. The same was true of all the Germans; they seem still to have settled by gentes even in the provinces they conquered from the Romans. The code of laws of the Alemanni confirms that the people settled by kindreds (genealogiae) in the conquered territory south of the Danube; genealogia is used in exactly the same sense as Markgenossenschaft or Dorfgenossenschaft [Mark or village community Ed.] later. Kovalevsky has recently put forward the view that these genealogia are the large household communities among which the land was divided, and from which the village community only developed later. This would then probably also apply to the fara, with which expression the Burgundians and the Lombards that is, a Gothic and a Herminonian or High German tribe designated nearly, if not exactly, the same thing as the genealogiae in the Alemannian code of laws. Whether it is really a gens or a household community must be settled by further research. The records of language leave us in doubt whether all the Germans had a common expression for gens, and what that expression was. Etymologically, the Gothic kuni, Middle High German kunne, corresponds to the Greek genos and the Latin gens, and is used in the same sense. The fact that the term for woman comes from the same root Greek gyne, Slav zena, Gothic qvino, Old Norse kona, kuna points back to the time of mother-right. Among the Lombards and Burgundians we find, as already mentioned, the term fara, which Grimm derives from an imaginary root fisan, to beget. I should prefer to go back to the more obvious derivation from faran (fahren), to travel or wander; fara would then denote a section of the migrating people which remained permanently together and almost as a matter of course would be composed of relatives. In the several centuries of migration, first to the east and then to the west, the expression came to be transferred to the kinship group itself. There are, further, the Gothic sibia, Anglo-Saxon sib, Old High German sippia, sima, kindred. Old Norse only has the plural sifiar, relatives; the singular only occurs as the name of a goddess, Sif. Lastly, still another expression occurs in the Hildebrandslied, where Hildebrand asks Hadubrand: Who is thy father among the men of the people ... or of what kin art thou? (eddo hu l hes cnuosles du s s). In as far as there was a common German name for the gens, it was probably the Gothic kuni that was used; this is rendered probable, not only by its identity with the corresponding expression in the related languages, but also by the fact that from it is derived the word kuning, K nig (king), which originally denotes the head of a gens or of a tribe. Sibia, kindred, does not seem to call for consideration; at any rate, sifiar in Old Norse denotes not only blood relations, but also relations by marriage; thus it includes the members of at least two gentes, and hence sif itself cannot have been the term for the gens. As among the Mexicans and Greeks, so also among the Germans, the order of battle, both the cavalry squadrons and the wedge formations of the infantry, was drawn up by gentes. Tacitus use of the vague expression by families and kindreds is to be explained through the fact that in his time the gens in Rome had long ceased to be a living body. A further passage in Tacitus is decisive. It states that the maternal uncle looks upon his nephew as his own son, and that some even regard the bond of blood between the maternal uncle and the nephew as more sacred and close than that between father and son, so that when hostages are demanded the sister's son is considered a better security than the natural son of the man whom it is desired to bind. Here we have living evidence, described as particularly characteristic of the Germans, of the matriarchal, and therefore primitive, gens.  If a member of such a gens gave his own son as a pledge of his oath and the son then paid the penalty of death for his father's breach of faith, the father had to answer for that to himself. But if it was a sister's son who was sacrificed, then the most sacred law of the gens was violated. The member of the gens who was nearest of kin to the boy or youth, and more than all others was bound to protect him, was guilty of his death; either he should not have pledged him or he should have kept the agreement. Even if we had no other trace of gentile organization among the Germans, this one passage would suffice. Still more decisive, because it comes about eight hundred years later, is a passage from the Old Norse poem of the twilight of the gods and the end of the world, the V lusp . In this "vision of the seeress," into which Christian elements are also interwoven, as Bang and Bugge have now proved, the description of the period of universal degeneration and corruption leading up to the great catastrophe contains the following passage: Brothers will make war upon one another and become one another s murderers, the children of sisters will break kinship. Systrungar means the son of the mother s sister, and that these sisters sons should betray the blood-bond between them is regarded by the poet as an even greater crime than that of fratricide. The force of the climax is in the word systrungar, which emphasizes the kinship on the mother s side; if the word had been syskina-b rn, brothers' or sisters' children, or syskinasynir, brothers' or sisters' sons, the second line would not have been a climax to the first, but would merely have weakened the effect. Hence even in the time of the Vikings, when the V lusp was composed, the memory of mother-right had not yet been obliterated in Scandinavia. In the time of Tacitus, however, mother-right had already given way to father-right, at least among the Germans with whose customs he was more familiar. The children inherited from the father; if there were no children, the brothers, and the uncles on the father's and the mother's side. The fact that the mother s brother was allowed to inherit is connected with the survivals of mother-right already mentioned, and again proves how new father-right still was among the Germans at that time. Traces of mother-right are also found until late in the Middle Ages. Apparently even at that time people still did not have any great trust in fatherhood, especially in the case of serfs. When, therefore, a feudal lord demanded from a town the return of a fugitive serf, it was required for example, in Augsburg, Basle and Kaiserslautern that the accused person's status as serf should be sworn to by six of his nearest blood relations, and that they should all be relations on the mother s side. (Maurer, St dteverfassung, I, p. 381.) Another relic of mother-right, which was still only in process of dying out, was the respect of the Germans for the female sex, which to the Romans was almost incomprehensible. Young girls of noble family were considered the most binding hostages in treaties with the Germans. The thought that their wives and daughters might be taken captive and carried into slavery was terrible to them and more than anything else fired their courage in battle; they saw in a woman something holy and prophetic, and listened to her advice even in the most important matters. Veleda, the priestess of the Bructerians on the River Lippe, was the very soul of the whole Batavian rising in which Civilis, at the head of the Germans and Belgae, shook the foundations of Roman rule in Gaul. In the home, the woman seems to have held undisputed sway, though, together with the old people and the children, she also had to do all the work, while the man hunted, drank, or idled about. That, at least, is what Tacitus says; but as he does not say who tilled the fields, and definitely declares that the serfs only paid tribute, but did not have to render labor dues, the bulk of the adult men must have had to do what little work the cultivation of the land required. The form of marriage, as already said, was a pairing marriage which was gradually approaching monogamy. It was not yet strict monogamy, as polygamy was permitted for the leading members of the tribe. In general, strict chastity was required of the girls (in contrast to the Celts), and Tacitus also speaks with special warmth of the sacredness of the marriage tie among the Germans. Adultery by the woman is the only ground for divorce mentioned by him. But there are many gaps here in his report, and it is also only too apparent that he is holding up a mirror of virtue before the dissipated Romans. One thing is certain: if the Germans were such paragons of virtue in their forests, it only required slight contact with the outside world to bring them down to the level of the average man in the rest of Europe. Amidst the Roman world, the last trace of moral austerity disappeared far more rapidly even than the German language. For proof, it is enough to read Gregory of Tours. That in the German primeval forests there could be no such voluptuous abandonment to all the refinements of sensuality as in Rome is obvious; the superiority of the Germans to the Roman world in this respect also is sufficiently great, and there is no need to endow them with an ideal continence in things of the flesh, such as has never yet been practiced by an entire nation. Also derived from the gentile organization is the obligation to inherit the enmities as well as the friendships of the father or the relatives; likewise the Wergeld, the fine for idling or injuring, in place of blood revenge. The Wergeld, which only a generation ago was regarded as a specifically German institution, has now been shown to be general among hundreds of peoples as a milder form of the blood revenge originating out of the gentile organization. We find it, for example, among the American Indians, who also regard hospitality as an obligation. Tacitus description of hospitality as practiced among the Germans (Germania, Ch. XXI) is identical almost to the details with that given by Morgan of his Indians. The endless, burning controversy as to whether the Germans of Tacitus time had already definitely divided the land or not, and how the relevant passages are to be interpreted, now belongs to the past. No more words need be wasted in this dispute, since it has been established that among almost all peoples the cultivated land was tilled collectively by the gens, and later by communistic household communities such as were still found by Caesar among the Suevi, and that after this stage the land was allotted to individual families with periodical repartitions, which are shown to have survived as a local custom in Germany down to our day. If in the one hundred and fifty years between Caesar and Tacitus the Germans had changed from the collective cultivation of the land expressly attributed by Caesar to the Suevi (they had no divided or private fields whatever, he says) to individual cultivation with annual repartition of the land, that is surely progress enough. The transition from that stage to complete private property in land during such a short period and without any outside interference is a sheer impossibility. What I read in Tacitus is simply what he says in his own dry words: they change (or divide afresh) the cultivated land every year, and there is enough common land left over. It is the stage of agriculture and property relations in regard to the land which exactly corresponds to the gentile constitution of the Germans at that time. I leave the preceding paragraph unchanged as it stood in the former editions. Meanwhile the question has taken another turn. Since Kovalevsky has shown (cf. pages 51-52) that the patriarchal household community was a very common, if not universal, intermediate form between the matriarchal communistic family and the modern isolated family, it is no longer a question of whether property in land is communal or private, which was the point at issue between Maurer and Waitz, but a question of the form of the communal property. There is no doubt at all that the Suevi in Caesar's time not only owned the land in common, but also cultivated it in common for the common benefit. Whether the economic unit was the gens or the household community or a communistic kinship group intermediate between the two; or whether all three groups occurred according to the conditions of the soil these questions will be in dispute for a long time to come. Kovalevsky maintains, however, that the conditions described by Tacitus presuppose the existence, not of the mark or village community, but of the household community and that the village community only develops out of the latter much later, as a result of the increase in population. According to this view, the settlements of the Germans in the territory of which they were already in possession at the time of the Romans, and also in the territory which they later took from the Romans, were not composed of villages but of large household communities, which included several generations, cultivated an amount of land proportionate to the number of their members, and had common use with their neighbors of the surrounding waste. The passage in Tacitus about changing the cultivated land would then have to be taken in an agronomic sense: the community cultivated a different piece of land every year, and allowed the land cultivated the previous year to lie fallow or run completely to waste; the population being scanty, there was always enough waste left over to make any disputes about land unnecessary. Only in the course of centuries, when the number of members in the household communities had increased so much that a common economy was no longer possible under the existing conditions of production did the communities dissolve. The arable and meadow lands which had hitherto been common were divided in the manner familiar to us, first temporarily and then permanently, among the single households which were now coming into being, while forest, pasture land, and water remained common. In the case of Russia this development seems to be a proved historical fact. With regard to Germany, and, secondarily, the other Germanic countries, it cannot be denied that in many ways this view provides a better explanation of the sources and an easier solution to difficulties than that held hitherto, which takes the village community back to the time of Tacitus. On the whole, the oldest documents, such as the Codex Laureshamensis, can be explained much better in terms of the household community than of the village community. On the other hand, this view raises new difficulties and new questions, which have still to be solved. They can only be settled by new investigations; but I cannot deny that in the case also of Germany, Scandinavia and England there is very great probability in favor of the intermediate form of the household community. While in Caesar s time the Germans had only just taken up or were still looking for settled abodes, in Tacitus time they already had a full century of settled life behind them; correspondingly, the progress in the production of the necessities of life is unmistakable. They live in log-houses; their clothing is still very much that of primitive people of the forests: coarse woolen mantles, skins; for women and notable people underclothing of linen. Their food is milk, meat, wild fruits, and, as Pliny adds, oatmeal porridge (still the Celtic national food in Ireland and Scotland). Their wealth consists in cattle and horses, but of inferior breed; the cows are small, poor in build and without horns; the horses are ponies, with very little speed. Money was used rarely and in small amounts; it was exclusively Roman. They did not work gold or silver, nor did they value it. Iron was rare, and, at least, among the tribes on the Rhine and the Danube, seems to have been almost entirely imported, not mined. Runic writing (imitated from the Greek or Latin letters) was a purely secret form of writing, used only for religious magic. Human sacrifices were still offered. In short, we here see a people which had just raised itself from the middle to the upper stage of barbarism. But whereas the tribes living immediately on the Roman frontiers were hindered in the development of an independent metal and textile industry by the facility with which Roman products could be imported, such industry undoubtedly did develop in the northeast, on the Baltic. The fragments of weapons found in the Schleswig marshes long iron sword, coat of mail, silver helmet, and so forth, together with Roman coins of the end of the second century and the German metal objects distributed by the migrations, show quite a pronounced character of their own, even when they derive from an originally Roman model. Emigration into the civilized Roman world put an end to this native industry everywhere except in England. With what uniformity this industry arose and developed, can be seen, for example, in the bronze brooches; those found in Burgundy, Rumania and on the Sea of Azov might have come out of the same workshop as those found in England and Sweden, and are just as certainly of Germanic origin. The constitution also corresponds to the upper stage of barbarism. According to Tacitus, there was generally a council of chiefs (principes), which decided minor matters, but prepared more important questions for decision by the assembly of the people; at the lower stage of barbarism, so far as we have knowledge of it, as among the Americans, this assembly of the people still comprises only the members of the gens, not yet of the tribe or of the confederacy of tribes. The chiefs (principes) are still sharply distinguished from the military leaders (duces) just as they are among the Iroquois; they already subsist partially on gifts of cattle, corn, etc., from the members of the tribe; as in America, they are generally elected from the same family. The transition to father-right favored, as in Greece and Rome, the gradual transformation of election into hereditary succession, and hence the rise of a noble family in each gens. This old so-called tribal nobility disappeared for the most part during the migrations or soon afterwards. The military leaders were chosen without regard to their descent, solely according to their ability. They had little power and had to rely on the force of example. Tacitus expressly states that the actual disciplinary authority in the army lay with the priests. The real power was in the hands of the assembly of the people. The king or the chief of the tribe presides; the people decide: No by murmurs; Yes by acclamation and clash of weapons. The assembly of the people is at the same time an assembly of justice; here complaints are brought forward and decided and sentences of death passed, the only capital crimes being cowardice, treason against the people, and unnatural lust. Also in the gentes and other subdivisions of the tribe all the members sit in judgment under the presidency of the chief, who, as in all the early German courts, can only have guided the proceedings and put questions; the actual verdict was always given among Germans everywhere by the whole community. Confederacies of tribes had grown up since the time of Caesar; some of them already had kings; the supreme military commander was already aiming at the position of tyrant, as among the Greeks and Romans, and sometimes secured it. But these fortunate usurpers were not by any means absolute rulers; they were, however, already beginning to break the fetters of the gentile constitution. Whereas freed slaves usually occupied a subordinate position, since they could not belong to any gens, as favorites of the new kings they often won rank, riches and honors. The same thing happened after the conquest of the Roman Empire by these military leaders, who now became kings of great countries. Among the Franks, slaves and freedmen of the king played a leading part first at the court and then in the state; the new nobility was to a great extent descended from them. One institution particularly favored the rise of kingship: the retinues. We have already seen among the American Indians how, side by side with the gentile constitution, private associations were formed to carry on wars independently. Among the Germans, these private associations had already become permanent. A military leader who had made himself a name gathered around him a band of young men eager for booty, whom he pledged to personal loyalty, giving the same pledge to them. The leader provided their keep, gave them gifts, and organized them on a hierarchic basis; a bodyguard and a standing troop for smaller expeditions and a regular corps of officers for operations on a larger scale. Weak as these retinues must have been, and as we in fact find them to be later for example, under Odoacer in Italy they were nevertheless the beginnings of the decay of the old freedom of the people and showed themselves to be such during and after the migrations. For in the first place they favored the rise of monarchic power. In the second place, as Tacitus already notes, they could only be kept together by continual wars and plundering expeditions. Plunder became an end in itself. If the leader of the retinue found nothing to do in the neighborhood, he set out with his men to other peoples where there was war and the prospect of booty. The German mercenaries who fought in great numbers under the Roman standard even against Germans were partly mobilized through these retinues. They already represent the first form of the system of Landsknechte, the shame and curse of the Germans. When the Roman Empire had been conquered, these retinues of the kings formed the second main stock, after the unfree and the Roman courtiers, from which the later nobility was drawn. In general, then, the constitution of those German tribes which had combined into peoples was the same as had developed among the Greeks of the Heroic Age and the Romans of the so-called time of the kings: assembly of the people, council of the chiefs of the gentes, military leader, who is already striving for real monarchic power. It was the highest form of constitution which the gentile order could achieve; it was the model constitution of the upper stage of barbarism. If society passed beyond the limits within which this constitution was adequate, that meant the end of the gentile order; it was broken up and the state took its place.
Origins of the Family-- Chapter VII