The Northern Way

Commentary To the Germanic Laws and Medieval Documents


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Probably no fallacy has done more harm to historical and linguistical science than the assumption that biological evolution is physically operative in the field of human actions, that mental processes and moral changes are subject to gradual and imperceptible transformations, that no amount of external influence can more than bend the original type of a civilisation, and so forth. Without denying the interaction of physical laws in the realm of reason, every student of history must realise that human society has frequently progressed by sudden and utterly unforseeable jumps. The Hungarians passed from a Nomadic to an agricultural life, with a stable and permanent government, in an incredibly short time. The Mandingo and Woloff Negroes have in Anglo-Saxon countries become thoroughly Anglo-Saxon linguistically, with hardly a trace of their native dialects, still spoken by the slaves a century or two ago. The amalgamation of heterogeneous peoples in the United States is not only complete intellectually, but late investigations go to show that even the cranial structure of the second generation is in America violently changed in the direction of an American type.

Regardless of such obvious phenomen, the number of which may be indefinitely increased, Germanic scholars have proceeded from the theory that the sudden appearance of the Teutons of the political scene in the fifth century, their activity in establishing law and order, which followed their settlement in the conquered territories, their agricultural habits, which they evinced from the start, were all indicative of a long, fairly uniform civil existence of those nations which Caesar and Tacitus knew only as German barbarians. On this theory a proto-Germanic civilisation has been postulated, and its continuance has been proved from documents following the migration of the nations down to Carolingian times and even later, although all these documents are compiled in the Latin language and betray the Roman notarial attitude towards legal and social institutions.

In the following pages I shall study these documents in the light of the Roman law, here I will analyse only the analogous case of the American Indians, where deductions from documents and conditions are controllable by contemporary evidence from other sources, in order to test the reliability of the method pursued by scholars in the case of the early history of the Germanic nations.

The description which Caesar and Tacitus give of the semi-nomadic Germans almost fits that which one might have given of the Indians of North America, when the White settlers first set foot there. Like the Germans, they lived on the produce of the chase, occasionally cultivating corn fields with no determined boundaries, knew no landed property, were constantly engaged in warfare, carrying their families with them in their raiding expeditions, lived in flimsy structures, covered their bodies with animal skins. Some of the Indians, the Five Nations, had formed an alliance similar to the Ingvaeonian union of the northern Germans, and, as the bravery, simplicity, hospitality of the Germans has been praised by Tacitus, so the Indians have had their panegyrists. Like the comitatus of the Teutonic princeps were the companies of the Indian braves about their chiefs, with whom they took counsel; and, though possessing no definite organisations, the various tribes of the Indians had their separate "spheres of influence" in their hunting grounds, not unlike the territorial divisions ascribed to the early Germans. But it is the Cherokees, relatives of the Iroquois Nations, and the Chickasaws and Choctaws, of the Muskohegan family, that bear the most striking resemblance to the Teutons of the period of accomplished migrations. I shall confine myself chiefly to the history of the Cherokees.

When the White man set foot in North America, the Cherokees dwelt in the region of the Blue Ridge, but at an earlier time they are supposed to have lived as Mound Builders in the Ohio Valley. "His blood of his ancestors, as well as his enemies, could be trailed from the Hiwassee to the Ohio. The trophies of his skill and valor adorned the sides of his wigwam and furnished the theme for his boastful oratory and song around the council fire and at the dance. His wants were few and purely of a physical nature. His life was devoted to the work of securing a sufficiency of food and the punishment of his enemies. His reputation among his fellow men was proportioned to the skill with which he could draw his bow, his cleverness and agility in their simple athletic sports, or the keen and tireless manner that characterized his pursuit of an enemy's trail. His life was simple, his wants were easily supplied and, in consequence, the largest measure of his existence was spent in indolence and frivolous amusements. Such proportion of the family food as the chase did not supply was found in the cultivation of Indian corn." (1)

At the period of the English settlement of the Carolinas, the Cherokees occupied parts of these regions and also of what now are West Virginia and Kentucky. From 1721 on, there were frequently made between them and the English government treaties, by which their boundaries were shifted and generally contracted. Similar treaties were made with the government of the United States, resulting in similar diminutions of their territory. In 1816 it was proposed to make a tender of their whole territory to the United States in exchange for lands on the Arkansas River, whither a portion of the Cherokees moved in 1818. In 1825 a report was submitted to the War Department of the United States, showing that "numberless herds of cattle grazed upon their extensive plains; horses were numerous; many and extensive flocks of sheep, goats, and swine covered the hills and the valleys.....the soil of the valleys and plains was rich, and was utilized in the production of corn, tobacco, cotton, wheat, oats, indigo, and potatoes; considerable trade was carried on with the neighboring States, much cotton being exported in boats of their own to New Orleans; apple and peach orchards were quite common, much attention was paid to the cultivation of gardens; butter and cheese of their own manufacture were seen upon many of their tables; public roads were numerous in the Nation and supplied at convenient distances with houses of entertainment kept by the Nation; many and flourishing villages dotted the country; cotton and woolen cloths were manufactured by the women and home-made blankets were very common; almost every family grew sufficient cotton for its own consumption; industry and commercial enterprise were extending themselves throughout the Nation, nearly all the merchants were native Cherokees." (2) By the treaty of 1828 their territory on the Arkansas River was determined to be seven million acres in extent, various grants of money were given them, one of $500 to George Guess, the discoverer of the Cherokee alphabet, and the "United States agreed to furnish the Cherokees, when they desired it, a system of plain laws and to survey their lands for individual allotment." (3)

The Cherokees had as early as 1810 abolished clans and "in 1820 the Nation was reorganized, and by a resolve of its National Council, divided into eight districts, each of which had the privilege of sending four members to the legislature. The pay of the members was established at one dollar per day, that of the speaker being fixed at one and a half dollars, and the principal chiefs were to receive $150 a year. Some of their principal laws and regulations were: a prohibition of spirituous liquor being brought into the nation by white men. If a white man took a Cherokee wife, he must marry her according to their laws; but her property was not affected by such union. No man was allowed but one wife. A judge, marshal, sheriff and deputy, and two constables were commissioned in each district. Embezzlement, intercepting and opening sealed letters was punished by a fine of $100 and 100 lashes on the bare back. No business was allowed on Sunday; and the fences were regulated by statute. They also had a statute of limitations, which, however, did not affect notes or settled accounts. A will was valid, if found on the decease of its maker to have been written by him, and witnessed by two creditable persons. A man leaving no will, all his children shared equal, and his wife as one of them; if he left no children, then the widow to have a fourth part of all the property; the other three fourths to go to his nearest relatives. And so if the wife died, leaving property. Before the division of the nation into districts, and the appointment of the above-named civil officers, there was an organized company of light-horse, which executed the orders of the chiefs, searched out offenders, and brought them to justice. It was a fundamental law, that no land should be sold to the white people without the authority of a majority of the nation. Transgressors of this law were punished with death." (4)

It is obvious that the ideas expressed by the words "marshal, sheriff, deputy, constable, letters, pecuniary fine, Sunday, fences, statute, limitation, will, light-horse" were first obtained from the White man and that all these laws were fashioned after those of their civlised neighbors, but some of them are so transformed as to appear at first sight to represent an Indian tradition. Thus the formation of an organised company of horse to execute the orders of the chiefs, which is amazingly like the organisation of the Burgundian wittiscalci, the Salic trustis dominica, is in reality nothing more than an attempt at carrying out the laws of the Whites among lawless Indians. In fact, it can be shown that the organisation of this light-horse emanated from the government of the United States, for in a treaty between the Choctaws and the United States of 1820 we read, "To enable the Mingoes, Chiefs, and head men, of the Choctaw Nation, to raise and organize a corps of light horse, consisting of ten in each district, so that good order may be maintained, and that all men, both White and Red, may be compelled to pay their debts, it is stipulated and agreed, that the sum of two hundred dollars shall be appropriated by the United States for each district, annually, and placed in the hands of the agent, to pay the expenses incurred in raising and establishing said corps; which is to act as executive officers, in maintaining good order, and compelling bad men to remove from the Nation, who are not authorized to live in it by a regular permit from the agent." (5)

As soon as proper officers were substituted, the institution fell into desuetude, and there is no further mention of this in the laws. The establishment of the principal chief, which at first thought would appear as a continuation or development of the Indian sachem and might lead to comparison with the evolution of royalty from the German chiefs, a fact which is actually assumed by German scholars, has nothing whatsoever to do with the Indian dignity but the name. In the Chickasaw laws (6) the chief magistrate is styled "the Governor of the Chickasaw Nation," and the yearly salary paid to the Cherokee Principal Chief and his tenure of office by popular election show conclusively that we are dealing here with an institution of the Whites. So, too, the name of Principal Chief is due to the conceit of the White Americans, who have as lavishly conferred this appellation on the Red man's leaders, as Tacitus has that of princeps on the more prominent Germans.

In the Constitution of the Cherokee Nation (7) passed in 1839 there are still more startling resemblances to "proto-Germanic" conditions. "The lands of the Cherokee Nation shall remain common property, but the improvements made thereon, and in the possession of the citizens of the Nation, are the exclusive and indefeasible property of the citizens respectively who made, or may rightfully be in possession of them: Provided, that the citizens of the Nation possessing exclusive and indefeasible right to their improvements, as expressed in this article, shall possess no right or power to dispose of their improvements, in any manner whatever, to the United States, individual States, or to individual citizens thereof." (8) This is precisely like the Burgundian law according to which no property could be sold to a foreigner. (9) In either case the weakly developed sense of individual ownership and the strong desire to preserve nationality intact led to the enactment of laws of self-preservation, which in a very few generations became inoperative through adaptation to surroundings. In neither case can we predicate a continuance of a communistic system previous to a contact with a new civilisation. The Indians and the proto-Germans had no conception of and no need for "common property," for the reason that land did not present to them the idea of possession, but merely acted as a background on which to exert their activities. We have no evidence that they actually worked the land in common, in some such way as did the Peruvians. We only know that they had no idea of distinct divisions of land, even as Tacitus spoke of such absence of boundaries among the Germans. The attempt occasionally made by scholars to accuse Tacitus of a mistake of judgment in this and to postulate a communistic state seems futile in connection with what we actually know of the Indians previous to their enactment of the above apparently communistic law.


1. Chas. C. Royce, The Cherokee Nation of Indians, in Annual Report of Bureau of American Ethnology, 1883-4, p. 371 f. [Back]

2. Chas. C. Royce, The Cherokee Nation of Indians, in Annual Report of Bureau of American Ethnology, 1883-4, p. 240. [Back]

3. Ibid., p. 230. [Back]

4. G. E. Foster, Literature of the Cherokees, Ithaca, N.Y., 1889, p. 36 f. [Back]

5. H. B. Cushman, History of the Choctaw, Chickasaw and Natchez Indians, Greenville, Texas, 1889, p. 117. [Back]

6. Constitution, Treaties and Laws of the Chickasaw Nation, Atoka, I. T., 1890, p. 11. [Back]

7. Constitution and Laws of the Cherokee Nation, St. Louis, 1875. [Back]

8. Ibid., p. 9. [Back]

9. "Hoc etiam interdictum, ut quisque, habens alibi terram, verdendi necessitatem habet, in comparandum, quod Burgundio venale habet, nullus extraneus Romano hospiti praeponatur, nec extraneo per quodlibet argumentum terram liceat comparare," Monumenta Germaniae historica, Leg. sec. I, vol. II, p. 107. [Back]

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