Old German Society; Its Foundation and Disappearance

Bigelow, Melville M.

1 B.U. L. Rev. 29 (1921)

Germany

BY MELVILLE M. BIGELOW, P.H.D., LL.D,

Under this title I am going to try to give a sketch of what may be called Voluntary Government, the earliest form of government of the German race. In the first place let us take a glance at the geography of the country. Now, the western, northern, and southern boundaries are quite plain—the Rhine, the German Ocean and Baltic Sea, and the Danube. In the east the lines are less definite, but, generally speaking, the old German peoples extend much into what we call Russia today; into Sarmatia on the east, and Dacia on the southeast. Sarmatia was a Slavonic nation; not, properly speaking, a Germanic nation, and yet originally Teutonic; that is, originally the Teutonic peoples and the Slays were the same, but for a long time they had been separate and had lost all connection with each other. So with regard to Dacia. Dacia was a Roman Province. Inside these lines we have the old German peoples, whose life we are studying. I haven’t been able to make any exact measurement, in view of the fact that the eastern boundaries were indefinite, but I take it that it is safe to say that the old Germans occupied a territory one-half greater than that of modern Germany. That is to say, they occupied a territory of perhaps 300,000 square miles; a territory about five times as great as that of all the New England States together. Now they were scattered all over this extent of land. Tacitus identifies some sixty distinct peoples within this territory—sixty distinct communities, nearly all of them Germanic. A few among them were Celtic, but so far as our present purpose is concerned it does not make any difference whether they were Celts or Germans. For all went along the same natural lines of voluntary association regulated by custom.3 Here are facts for the student of legal history to consider.

l A stenographic report, revised, of a classroom lecture, Dec. 3, 1920, in the course on Legal History, in the Law School of Boston University. Other lectures on Old German Society preceded and followed, “Lex Salica” being one of the subjects. 2See supra “Foreword,” first footnote.—Es,. 35o in Asia, apart from Roman government and its Greek predecessor (the empire of Alexander); India to this day being a great example. Founded upon family, it was nature’s own way. (“Family” had been the subject of previous lectures in this course.)

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Tacitus, I say, identifies sixty or more of these people, leaving an indefinite unidentified number like those that he identifies. For instance, he speaks of Suevia, a vast district of central Germany occupied by the Suevians. In this district he identifies only two or three peoples, and yet this was the most populous part of Germany. There were many unidentified peoples within this and other districts. But suppose there were but sixty in all. That is enough for our purpose. Now what does it mean that there were at least sixty distinct peoples within the territory embraced by the Germania of Tacitus — what does that mean? It is a very significant fact—these separate communities, all following the same sort of government, so far as is known, practically the same, and having the same idea of liberty.

I suggest that it is an impressive fact when you find so many communities, separate and distinct from each other to a large extent, though of a common origin, pursuing the same idea of social order; when you see such a thing as that you will find it important to reflect upon its meaning. Remember that, so far as we know, each and all had the same common purpose, the same social order.

Now what was the social order that is common to all these peoples? What is the significant thing about it? To my mind it is this: It was an expression of instinct, fundamental instinct, kindled by family and enforced by association of kinships in a common purpose, freely exercised and always revocable—a common purpose to bring about, or live in, a certain social order; a purpose always revocable by any of those who entered into it. In other words, it was government by custom, which means a common mind, changeable at will.

In our day we are apt to forget such things. We can hardly think of a society formed in that way; a voluntary association of a vast number of people scattered over so large a territory, half of Continental Europe, and that voluntary connection and society a revocable affair. The emphasis I place on the last word, that this voluntary association was revocable by any of the parties to it, at any time. That is the phase of it which we are apt to overlook; which we are not at all familiar with.

Where is there a great society today, in Europe or America,1 constituting a nation, the parties to which have come together in such a way? We haven’t anything of the kind. The South tried it in Civil War times and failed. These sixty, and probably a great

l In the far East everywhere, as in India, customary or communal society still remains, as every one knows.

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many more, people lived in a voluntary revocable relation with each other; there is more in that than seems on the face of it. The idea was lost in the civilization of the Middle Ages. It was so far back that it was utterly forgotten, or, if not forgotten, entirely ignored. It is opposed to all medieval government; and today there is no nation whose parts could be severed by their own will.

Even men of liberal mind and education, men of learning, fail to see it. English writers of the first rank failed to see that there could be any such government. That is true of English writers as late as the time of Cromwell, liberal minded men as they were. Such men as Thomas Hobbes had no idea that there could be a pure voluntary government that could be dissolved at any time.

The one idea of the writers in the Medieval Ages, down to modern times, down to very recefit times, has been that the State is the beginning of all things, and that our rights are derived from the State; forgetting what preceded. I suppose there is no more prominent political writer in the seventeenth century than Thomas Hobbes, a liberal minded man too (the man who had the good fortune to have all his books burned because he opposed the Stuarts). What does he tell us? He hasn’t any idea of what existed so long on the continent. He thinks of a sovereign as distinct from sovereignty.

These old Germans had sovereignty diffused through the people. They had sovereignty, but not a sovereign. Hobbes and those that follow him always think of a sovereign. They can’t think of anything else but the existence of a sovereign from whom laws are to be derived, by whom laws are to be laid down. In his “Leviathan” Hobbes tells us that the idea of government is that the people have surrendered their rights to a sovereign. They haven’t given them away in trust so that they may be restored; they have given them away irrevocably to a sovereign, and this sovereign then gave back to the people such rights as he would.

That is the idea of such eminent Writers as Thomas Hobbes. The idea is directly in the face of all we have been learning. There was no State, there was no sovereign among the old Germans. But the sovereign is the essence of the idea of Hobbes and Austin.

The truth is that the State is a very late affair as compared with what went before it, that is, our English States and States derived -from Germany. All these States are quite modern affairs, very modern indeed compared with what went before; that is, compared with voluntary and revocable associations. The world hasn’t depended on the State for its social order. The State did not create the social order in times before, because there wasn’t as yet any State; the social order was maintained by voluntary associa-

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tion, by voluntary revocable association. That was enough to maintain order, so far as order was maintained, and, generally speaking, it must have been maintained probably as well as in modern times, otherwise these people could not have survived. The very fact that they did survive for ages shows that order was maintained by them.

I have said something about the duration of the period of these peoples we call the Old Germans. How long did they exist under voluntary government? How long did such government last? Well, we are sure of five hundred years. We have that before our eyes in written history, as we read from Caesar down to the migrations into Gaul and Britain. All this time we have these peoples before us in the same way, under the same sort of social order.

Now that is something worth considering, is it not? These people in historic times long lived together and maintained order. Just think of some of them at this time with whom we are more or less familiar. There were the Semnonians, the most powerful people, the most populous people in Suevia; these people in all this time, from Caesar down to the migrations living in this way, living under a voluntary association that might be revoked at any time; a very populous people, too. Remember that Caesar tells us that they occupied a hundred districts, and that each one of those districts furnished one thousand fighting men each year; that is to say, these districts furnished a hundred thousand fighting men every year. That is just one of these people, perhaps the strongest. Caesar speaks of them as the strongest of all. I doubt whether others were not stronger. Then we have the Sicambri. They apt- pear and disappear indeed, but that is true of all the rest of them. They are not before our eyes all the time. The Sicambri were a powerful people in the time of Caesar. They were powerful much later; two or three hundred years later, we find them at the head of the Franks. Among the Salian Franks we find these same Sicambri. It is probable that they were at the head of the Salians. Well, they more or less disappear from sight after that, but they didn’t disappear as a matter of fact, for when Clovis came to be baptized after his conversion to Christianity what did the Bishop call him? He didn’t give him any new name. He said “Sicamber, bend thy neck.” Sicamber was head of a vast concourse.

Then there is another ancient people whom we should not pass by; people with whom we are more nearly connected than with the Salian Franks. I mean the Cimbri, who emerged from Southern Denmark and the islands adjacent, which apparently they filled and overflowed. For these Cimbri, Plutarch tells us, put three

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hundred thousand men into the field. Think of the meaning of that with regard to the population of the Cimbri. We can’t go far astray in saying that these three nations must have had millions of men following this idea of a voluntary revocable government. These Cimbri are very interesting to us because from them probably came the Saxons, Angles, and Jutes, our own ancestors so far as we are of English ancestry at all. They held together for all this long period. So far as the Angles were concerned, they all left their old home and went to Britain.

It seems to me that these are impressive facts, though they are forgotten facts. That so many people, so many separate and distinct peoples could live together, or live within their respective borders, under one form of government which had no sovereign at the head—all this deserves attention. I have spoken only of the period extending from Caesar to the migrations into Gaul and Britain—five hundred years. How long before that did they exist in Germany? Nobody knows. The Semnones had forgotten that they had ever lived anywhere else. We do not know when the Teutonic races left the great central area; but suppose they left about the same time the Greeks and Latins left. Suppose this Teutonic people began at that time. We know something of the length of time the Greeks lived in southern Europe and in the neighboring islands of the southeast. The Iliad goes back some eleven hundred years before the Christian Era. We have these Germans following the same ideas of government probably all that time, and very likely much longer.

What I want to try to call your attention to is the duration the German tribes lived under their particular form of government. It must have gone back fifteen hundred and very likely two thousand years before the Christian Era. Nobody knows how far back. It becomes more impressive on thinking of this form of government, when you think how long it endured—so much longer than modern governments have endured, and apparently with as good results, as far as maintaining order is concerned. Now, if the facts are as impressive as they seem, we should inquire on what idea society was formulated; what was the bond of this Old Germanic society? What was it that held them together? I have spoken of the community interest, of their voluntary association. But we must look into that a little further and see what it means. I venture to suggest that the bond which held all these separate and distinct peoples was the instinct of preservation. That instinct expressed itself in the form of a common purpose to preserve the tribal association. And I suppose there is no instinct

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quite so strong. Now note that this was not merely the instinct which cares for the preservation of the individual. It looked to the preservation of society; human life was simply a means to that end.

That is what impresses me more than anything else with regard to these people. They were not thinking so much of themselves as of society. And biology enforces this instinct. Biology teaches that we live not for ourselves alone but for society; that human life is a means to an end. That is what we should reflect upon, and here we have it before us, in the history of a people running back for ages. Man does not live for his individual purposes but for society—that is the teaching; and that, I suppose, is final.

Let me put that this way: The process of life is an outward and not an inward one. It is only as an outward process that life can be carried on. Only because the process is outward is life continued. That is the very heart of the subject. If the process were inward, it would mean death. Now that is expressed in terms of mutual service and cooperation between the members of society. That is the outward manifestation of this instinct. That is the most permanent of all things.

We have then our formula, that of mutual service and cooperation, as the most fundamental idea in human existence—as the most perfect promise of a stable society. If you add to that, by a process of evolution, a strong central government held in trust and responsive at all times to the people, then it seems you have the perfect thing; the common purpose, I repeat, expressed in terms of service.

Assuming that you have a strong central government, evolved from the same idea and with the same idea, a government in trust and responsive at all times to the people, then you have the true government. That is to say, you need to go further than the Old Germans did. The formula contained in itself all that was needed to work out the idea of an effective government. They had for all the world and for all time the formula itself, although they didn’t work it out. It is one thing to say you have a formula and another thing to work it well.

Now the Old Germans didn’t carry out the purpose perfectly. There were very serious defects in the way they applied the formula. It wasn’t the formula that was defective; the formula was for all time, for us today. The working of it was imperfect, and that is apt to be the trouble always. Remember the idea that I have tried to enforce, that you may have a very simple formula and yet great complexities arising from it, and hence much difficulty in applying it. Their difficulty was very largely due to a false religion, the wor—

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ship of ancestors. But those things were capable of correction.

Gentlemen, we must not put these Old Germans aside as barbarians. Tacitus thought highly enough of them to make them the subject of a famous book. It is no doubt hard for us to believe that we can learn anything from a people who did not care for education in the sense in which we use that term; but that is because we have taken a superficial view of the subject. In government the social order is a first necessity of society; and it can be found and practiced, as it is found and practiced, by primitive people. This idea of government, by mutual service and cooperation, is so fundamental that we can see it in primitive people much better than in civilization. It is free from entanglements in early society; we can there see it in operation more directly. Primitive people can teach us, because they were compelled to live in this one way, and because the instinct worked out in actual life there unfettered; what more can you say?

Well, I think it is pretty clear that we needn’t come down to modern times to look into the ways of government, to find the true formula. In fact, when we get down to modern times we get into difficulties because of the complexity of the situation and because the formula is apt to be lost.

But while instinct such as I am speaking of is the strongest and the safest of all guides, it may not always be followed. Old German society with its voluntary association, its mutual service and cooperation, came to an end. It disappeared soon after the great migrations. The migrations into Britain and Gaul constituted the Great Divide between the old and the new, and the old now disappeared. What is it that disappeared? Internal sovereignty disappeared and gave place to an external sovereignty—an external sovereign who made laws for subjects; that is the thing to re- member. That is the difference. That is what came to pass at the end of this great period.

Perhaps as you reflect upon this subject you will be inclined to ask me if this is all there is to it. Isn’t the difference between modern society and a more primitive form the difference between complexity and simplicity? Isn’t that at any rate the chief difference? Didn’t this simplicity give way to the complexity of modern times? Our society is extremely complex, and it may be said, we are not going to look back to the Old Germans for help.

But is complexity inconsistent with simplicity? Is the development of a formula inconsistent with the formula itself? Take any formula you will, any mathematical formula for instance, and think of the complexities following on and out of it. They are all

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consistent with the formula, are they not? Complexities in government are quite consistent with the principle on which government should be founded. The trouble is not with complexity but with contradictions of the formula. Instead of mutual service we have individualism of the sordid kind. That isn’t complexity; it is refusing to accept the formula itself. It is denying the formula. Not complexity, but change of conditions, change of environment, caused the overthrow of Old German society; scarcity of supplies at home for the growing population, with promise of plenty beyond. All was now to be a scramble for life, for goods. That put an end to the immemorial system of mutuality and cooperation in family and kinships, that is to say, an end to voluntary government. Old German society met its death by a biological law. Then, after the overthrow, came competition and struggle between the common, collective purpose in aid of society and selfish individualism; with the result, frequent enough, that the former gave way to the latter. The medieval State was now to play its long part in the building up process; how was that to be carried out?