The Law of Booty

    45.  We have previously, in passing, mentioned the law of booty, but reserved a more detailed exposition of it until now.

    From the way in which Gaius speaks of it, when treating of vindicatio (iv. 16), we are led to suppose that the booty belonged to he who captured it.  The staff used in the vindicatio, he explains, represents the spear, and the spear is the sign of lawful possession : quod maxime sua esse credebant, quae ex hostibus cepissent.  To base the act of private property upon the law of booty without acknowledging the intervention of public property in the booty, can mean only that it belonged to each person individually, and that the early Romans saw in it the principal source of private property.

    If Gaius really held this opinion, and if it were not for the sake of mere brevity that he omitted to mention this intervention of public property, he has committed a historical blunder, for booty did not fall to the share of the individual but of the public -- it could become private property only by its transfer on the part of the people.  With this limitation, however, it is quite consistent to assert that antiquity considered booty as the principal source of property (maxime sua esse credebant).  It reveals to us the migratory time wherein well-nigh every possession was taken from the enemy, and when peaceful acquisition through labour was quite insignificant compared to that gained by plunder : they were the robbers of the Hirpine legend.

    We only have only to clearly realize what this law of private booty involves in order to be convinced of its impossibility.  It need hardly be remarked that it could not apply to land or soil.  Neither could it apply to victuals -- cattle or corn -- or some would have lived in luxury while others would have starved, and it might have led to a fight for subsistence between these companions-at-arms.  Neither could objects of value nor prisoners of war be assigned to whomsoever, by some lucky chance, had happened to capture them.  Booty was by no means always the well-earned reward for personal valour; on the contrary, it fell more often to the share of the less valiant.  The former would always be found in the front, in pursuit of the retreating enemy; the latter kept as much as possible in the background.  It would therefore be comparatively easy for them to rob the enemy lying on the field of battle, or carry them away as slaves, and thus deprive those to whom they owed their opportunity of their rightful due.  To adjudge the booty to each individual would have been equivalent to sowing seeds of strife and dissension as to the rightful possession of it, and would have been called forth envy and malice from the less fortunate; it would have been throwing the bone of contention amongst the people -- nay, by losing sight of the principal object in view, the overthrow of the enemy, in their zeal to secure the booty it might have endangered the issue of the battle.  No one, not even the bravest, could claim booty for himself; left entirely to his own resources in the enemy's land, he could never have secured it.  Booty was in reality the fruit of the joint under-taking; each on contributed his share.  Therefore booty had to be joint property also; community in danger and expenditure of strength, and community also in the gains -- this was a condition which would appeal to the most crude conception of right.  Marauding expeditions by land or by water gave the initiative to this banding together in one common pursuit, and laid the fundamental idea of society in the mind of the people long before the peaceful form of this union had taken the place of the originally predatory one.

    Thus the principle of the common possession of booty was rendered inevitable by circumstances, and as to the three of the Indo-European nations -- Greeks, Romans, and Teutons -- we are in a position to prove that they acknowledged the same[1]. 

    

Introduction

     The Orient is the historic cradle of civilization: thence it has come to the Occident.  At a time when Europe still lay in a deep slumber, busy life of civilization was being led on the banks of the Euphates, the Tigris, and the Nile ;  powerful kingdoms had been founded ;  immense cities built ;  agriculture and commerce prospered ;  even art and science could show remarkable progress.  The alphabet had been discovered, and the course of the stars calculated.  The Phoenicians and Egyptians carried the products of this civilization across the seas to the shores for the inhabitants of the coast, from which depots of ocean trade civilization gradually penetrated inland.

     But those Eastern teachers were only individuals who came and went.  The nations themselves had no reason to leave their native home, which offered them so much more than they could find abroad : they did not emigrate.  Emigration is the fate alike of nations and individuals when they find existence otherwise impossible.  Stern necessity drives them forth.

     It was by means of emigration that another Asiatic nation was destined to give historical life to Europe, and to prepare the soil for receiving those elements of civilization which other nations of Asia already possessed.  Recent comparative philology has established beyond the fact that all the civilized nations of Europe became separated from it in distant prehistoric times.  At one time they talked the same language as the mother-nation ; and only after the separation of the daughter-nation from the mother-nation, the severance into branches, the consequent independence of their development, and the contact with nations speaking different dialects, do we find that extraordinary divergence of language which from the first historical existence of those nations distinguishes the separate idioms from the tongue of the mother-nations, and obscures the original unity to all but the philologist.

     One of the most brilliant discoveries of the nineteenth century is that which traced the decent of all Indo-European nations from the Aryans.  The first result, consisting of extraordinarily valuable discoveries respecting both the historical development of the several languages, and the growth of language generally, belongs to philology.  But it was soon seen that these linguistic discoveries contained also historical discoveries.

     The language of a nation comprises all that the nation calls its own.  Existence of a word implies existence of the thing it designates ; absence of the word means absence of the thing.  Language is the true image of fact.  Guided by language, it has been possible to find out what part of their civilization the Aryan daughter-nations took with them on their separation from the mother-nation, and what part they acquired only later.  When an expression is the same in all or at any rate in most of the daughter-languages, whilst it is unknown to the mother-language, it justifies the assumption that the thing (institution of idea) has come to the separate nations when they were still together ; if it occurs in only one or another language, we may conclude that it has become known to the nation only after the separation.

     It must be admitted that much of what was thought to have been discovered by this means has proved incorrect.  Some, trying to give us as worthy fore-fathers as possible, have so exaggerated the degree of civilization of the mother-nation that is cannot pass criticism ; and, in my opinion, great credit is due to Victor Hehn for having forcibly exposed the intangible character of many hasty conclusions thus arrived at.

     Philology and history must go hand in hand.  By a comparison of the institutions which we find amongst the Indo-European nations at the time of their first appearance in history,  history must decide what part belonged to them before their separation, and what part is to be accredited to each separate nation.  The comparative history of law in particular supplies us with explanations, and although research in this direction has only just commenced, it has already shown important results.  In my opinion, certain facts, which I will presently specify, may now be considered to have been proved.

     My profession--that of Roman Law--caused me to study the ancient history of the European nations.  I desired to clearly discover how the Romans treated those legal institutions which they had derived from the original nation--what they kept and what they altered.  I made these investigations not so much because I expected that any special fact would have been of special importance for me (however interesting it might be to the historian of law),  as on account of conclusions at which I thought I might be able to arrive with regard to the characteristics of the Roman nation.  Greeks and ancient Teutons preserved the Aryan system of ordeal ;  the Romans did not--why was this?  Teutons and Slavs kept the Aryan system of communal property,  even in arable land;  the Romans did not--why not?  On the other hand, by no other Indo-European nation have so many institutions been maintained as by the Romans, who afford, as I will show later on, a perfect mine of knowledge of past ages.  Thus we find a totally different nation in each of the two cases : in the one, an entire breach with the past ;  in the other,  its careful preservation.  One cannot but inquire how this apparent discrepancy is to be accounted for.  The first legal achievement the Roman mind accomplished was practically a criticism of the legal institutions of the  mother-nation : it was a feat of Hercules in his cradle.

     All that we can establish by the aid of philology is the descent of the Indo-Europeans from the Aryans, from which follows community of language and of certain institutions.  All the rest is wrapped in darkness.  We are not told of the locality of the mother-nation, when the emigration took place, what time elapsed before the different Indo-European nations settled, by what path they wandered, or whether they separated in their original or later.

    Scientific research in this direction finishes at one end with the mother-nation and begins at the other with the appearance in history of the different branches of the daughter-nations.  It is considered that the gap which is formed by the interval cannot be filled up.  It is like a stream lost in the earth, which after a long subterranean course reappears at another place.  If it came out as it had gone in, we should not concern ourselves that much about its underground career ;  but when it emerges we find that it has entirely changed its appearance.  At first an insignificant rivulet, scarcely able to drive small mills, it has now acquired a force which casts aside everything in its way ; several large rivers have emerged from the one little stream.  In the place of the Aryan, the European has appeared, of a type totally distinct from the Asiatic.  Whence this change?  Is it due to the European territory?  Is it the land--i.e. the soil, the climate, and the physical configuration--which has created the European?  But the European differs in Greece and Germany, in Italy and in England and Scandinavia.  And yet the European type is seen equally throughout all Indo-European nations.  It is not Europe which has made the European ; it is the European who made Europe.  He has become European during his time of migration, not only because it lasted over a long period, but because the conditions of the migration necessitated his energy.  The peaceable Aryan herdsman became changed into a warrior compelled to fight for every foot of soil until he found the land where he settled permanently ; this perpetual readiness for fight created the man who was destined to produce on the stage of Europe the second act in the history of the world.  During the hidden period of migration, not enlightened by any rays of information, the future of Europe was preparing itself ; it is the darkness of birth.  The Hindu and the European of to-day differ greatly, and yet they are children of one and the same mother, twin brothers who originally were exactly alike.  But one of them, the elder, heir to his father's estate, remained at home, whilst the next-born, who was thrown upon his own resources, went to sea, crossing every ocean, braving every danger.  Should he return after so many years his would not recognize his twin brother : life has made such totally different beings.

     Life at sea requires arrangements as different from those on land as the life of the Indo-Europeans on the march required as compared with that of those at home.  Under the guidance of historical connecting-links which, as will be seen, are by no means slender, and are--I hope to prove this--available for my purpose, I will show the irrefragable necessities which accompanied the migration.  I intend to sketch the conditions, arrangements, and episodes of the migratory period, to follow the Indo-European on his march, to consider the moral influences of the period upon his habits and character, to show the type of the European as contrasted with that of the Asiatic, and to prove how this change was brought about.  To me personally it is the most valuable result which my researches have yielded.  I am indebted to it for the explanation of a question which I have in vain attempted to solve by consulting historical works : "Wherein lies the origin of the European's individuality, which is undoubtedly the cause of the whole development occurring on the soil of Europe?"

     I hope further (in the fifth book, "The Second Home of the Indo-Europeans") to demonstrate that the emigrants who until then had formed one solid nation, ignorant of agriculture, encountered another nation which did understand it, which nation they conquered and placed in a condition unknown to the parent-nation, a condition which, after the separation, was maintained amongst all Indo-European nations--the condition of bondage.  I lay the seat of this nation in the regions of the Dnieper, the Dniester, and the Danube.  Here the wandering nation rested for centuries, until, owing to the imperfect methods of agriculture (especially insufficient manuring), the land became unfit for feeding the largely-increased population, and there recurred the same necessity which previously arose in the original home--the enforced emigration of a part of the nation.  But the relief was only temporary ; after a time emigration became again indispensable ; and those "blood-lettings" were repeated periodically.  Many of the masses of population which migrated may have perished ; others succeeded in fighting their way onwards and making a permanent home.  Here we are face to face with the fact of the separation of the Indo-Europeans into different nations.

     Historical tradition cannot tell us everything about them.  In the Sixth Book I will endeavour to trace whether anything can be adduced to enlighten, to some extent, the darkness which envelops the formation of the European nations, in the first place respecting the succession in which they branched off from the main nation.  I have limited myself to the five nations which are of importance in the history of civilization--the Greeks, the Latins, the Celts, the Teutons, and the Slavs ; the Illyrians and the Letts are of no interest in this regard.  My opinion is that the four first nations detached themselves in the order named, whilst the Slavs stayed at home and only gradually, without separation, spread themselves towards the North and the West.

     The second point to which I wish to pay attention is the question, Whence comes the difference between those five nations? (Book VII.)  The five national types which they represent cannot be the result of chance ; there must have been causes to bring about their diversity, and it remains to be seen whether what we know of them does not suffice to enable us to ascertain those causes.

     That is the end of the work.  As will appear from this summary, a very great part of it is taken up with a problem to which scientific research has hitherto been scarcely devoted at all, i.e. to fill up the existing gap between the departure of the Indo-Europeans from their home and their appearance on European soil as separate nations ; in short, the period of their migration.  Although some of the arguments I intend to adduce may be very problematical, I feel confident that there will be an abundance of them, and that alone will be sufficient to recompense me for my excursion into regions almost entirely unexplored.  No doubt much has escaped me ; but I hope my efforts will incite others who have the command of more linguistic and historical knowledge than I possess to follow the path I have taken.  It is certain that on that road lies a problem which science cannot dismiss with a single Ignorabimus ; science must attack it ; and if the philologists and historians combine for that purpose there will be no lack of results.  The pre-history of Europe will not be confined to narrating the fact that the Indo-Europeans are descended from the Aryans, and that they took with them many of the institutions of their native country ; but it will, as a second and historically much more important part, give details of the migration-period, and show what that period made of them, viz. the real history of the "cultures-nations" of Europe.  What the parent-nation gave them was only the dough out of which the migration formed them.

     In the first book I shall devote my attention to the parent-nation.  Whilst in the succeeding books I have had to depend entirely upon myself, in this one I have enjoyed the advantage of being able to avail myself of the researches of others ; yet I believe I shall from time to time be able to assist and amplify them.  So far as lay within my powers I have tried to master them, but I have considered it unnecessary to verify them by quotations.  Everyone has a right to use the common property of science without incurring the risk of being accused of appropriating what belongs to others.  However, I have duly quoted where I found the matter in question treated by one or a few authors only, and where I wanted the support of expert authority. 
     
     

TRANSLATOR'S PREFACE

RESEARCH into the history of the Indo-European race -- a missing link between the latest Sanskrit and the earliest Babylonian records -- has always had a great fascination for me, and, I think, for most students and lovers of history.

     When, therefore, a few years ago a copy of von Ihering's Vorgeschichte der Indo-Europaer was put into my hands, I hastened to read it, although I rather feared that it might be another of the numerous attempts which have been made to establish the descent of the Aryan by linguistical methods. To my surprise and delight, I found that von Ihering had based his hypotheses far more often upon facts and upon customs than on mere words and expressions. For whatever philology may have, and has, done for our knowledge of hitherto unknown phases in the existence of nations, sometimes, unless strongly corroborated by extraneous evidence, it cannot be denied that errors have been made.

     Some savants tell us now that the entire theory of the descent of the European of to-day from the Aryan is an absolute error. This is not the place for me to discuss the probabilities of the correctness of an attempt to demolish the work of many decades of laborious study. All I can say is, that even to those who do not believe in the Aryan descent, von Ihering's practical method and lawyer-like way of arguing must appeal. Von Ihering was a wonderfully versatile man. A Professor of Roman Law -- one of the greatest authorities on the subject that ever lived -- he devoted much of his spare time to the study of ancient history, principally of those customs pertaining to law which seemed to him incongruous with the state of civilization which the Romans of that period had reached; and this work is the outcome of his researches.

     The translation of a scientific work is at all times difficult. In this case it was particularly so, owing to the large number of technical expressions, and also the fact that, unfortunately , von Ihering died before he could revise the MS. or proofs.

     Still, I hope that the perusal of these pages may be as interesting to the reader as the work of translation has been to me.

A. DRUCKER