referee; and when they are from the same village, they may take the law of the home court. On the other hand, disputes may be adjudicated before the Alem, of matters not originating at the market.2

The procedure is usually brief. The plaintiff and defendant speak; the witnesses are heard, who either appear voluntarily, or are produced by the master of the market; and then follows the judgment which as a rule makes the final decision dependent on an oath of the parties judicially administered. The judgment is executed not by the Alem, but by the marketmaster.3 If the judgment debtor cannot or will not pay at once, execution follows, by means of which his goods, and contingently his clothing, are attached in favor of the judgment creditor.

It is worthy of note, that the tribe to which the market belongs establishes special officers for the measuring and weighing of merchandise. These officers are compensated by fees paid by the traders. Sometimes, these offices are sold by the masters of the market.5 Otherwise no taxes are levied, except that, when the tribe with dominion over the market has a school, a small portion of meat of all animals killed at the market must be delivered to it.5

Thus, among the peoples considered, so far as there do not appear remnants of the protection of the peace by the assemblage of the traders themselves, the Market Peace is controlled by all the members of a primitive village or tribal community and the officers appointed by it. On the contrary, it may be regarded as an universal legal phenomenon that where a vigorous chieftain or kingly power has developed, it assumes the function of regulating the markets. Kingly market sovereignty existed to some extent, perhaps as early as in time of the dispersion of the peoples, and in developed form, at all events, as early as the Carolingian period. Royal protection of Market Peace is found very early, in fact before the influence of Germanic law, among

6

1 Hanoteau and Letourneux, III, p. 38. 2 Ibid., III, p. 39. Ibid., III, p. 38. 4 Ibid., II, p. 79. 5 Ibid., II, p. 82. Cf. Eugippius, "Vita S. Severini," c. 22 ("Mon. Germ. Auct. Ant.," II, p. 19), according to which residents of a Roman city desired to go to a neighboring German prince to receive permission to trade in his domain. Against the view that "there were no markets in ancient Germanic society" (Dahn, "Deutsche Geschichte," Bd. I, Th. 2, p. 707), cf. Eugipp., op. cit., cc. 6, 9.

7Cf. Rathgen, "Entstehung der Märkte in Deutschland" (Darmstadt, 1881), p. 9 seq.; Schröder, "D. R. G.," p. 186.

5

1

2

3

the Slavs and Magyars. Among the Chinese 3 and the peoples of Islam, officers of the ruler are found caring for the regulation and law of market commerce. In primitive cultural conditions there may be found a developed market-police; thus, especially, in the capital city of the Bautshi in Sudan, living under a monarchical system of government. The Ssersi-n-kurmi, in all probability a royal officer, is seen daily at the market. He decides all barter disputes, and sees to it that only unadulterated milk, and that only flesh separated from the bones, are offered for sale. In the kingdom of the Bomas on the Loango coast, a special royal officer was vested with supervision over the market as early as the previous [18th] century; it was his function to oversee all the commerce between the natives and the Europeans, and to prevent trading between native-born slaves and Europeans. Lastly, reference may be made to the conditions in the kingly territory, Whydah, in Guinea. It was already reported 7 in the previous century that there a special royal officer heard all complaints between buyers and sellers at the market, and decided by summary procedure. The still primitive medium of exchange was also under the control of a royal officer in Whydah.7

Just as in the case of the public (State) law and criminal law foundations of the regulation of market commerce, so also in the construction of the standards of private commercial law, there is seen a surprising similarity among widely separated peoples. It must be conceded, that for the lowest stages of culture there is almost an entire absence of information concerning private commercial law, if we except the institution of the broker, discussed above, who is also a protector of the alien, and the special form of company law of the caravans, where certain elements of public law still play a part. It is certain that this is due in no small degree to the fact that under such conditions civil law and commercial law are nearly synonymous. But it requires to be men

8

1 Cf. Tomaschek, "Deutsches Recht in Oesterreich” (1859), p. 71. 2 Fessler, "Gesch. von Ungarn" (Lpz., 1867), I, p. 192.

3 Biot,." Le Tscheou-Li" (Paris, 1851), p. 309 seq.

4 Behrnauer, op. cit., p. 138 seq., 184 seq., 187 seq.

66

Rohlfs, Quer durch Afrika," II (Lpz., 1875), p. 160, and in Petermann's "Mitth. Ergänzungsh.," VII, No. 34, p. 36.

Proyart, "Histoire de Loango" (Paris, 1776), p. 124; cf. also Bastian, "Die deutsche Expedition an der Loangoküste" (Jena, 1874), Bd. II, p. 40.

Labat, "Voyage du chevalier des Marchais en Guinée" (Amsterd., 1731), II, pp. 162, 163.

8 This phenomenon is better treated in another connection; cf. Kulischer, p. 385 seq., Haggenmacher, p. 32, Munzinger, p. 124, Kohler, 'Rechtsvergl. Studien" (1889), p. 171.

tioned that among the Kabyles there existed local commercial usages. In a period now left behind, in the markets of the tribes, Ait Yahia, and Akbil, the actio redhibitoria on account of latent defects in goods sold, was not admitted in the sale of cattle.1 It hardly needs to be suggested, that, also, in Germany, notwithstanding the existence of a general commercial law, special commercial usages, and many special commercial statutes, for a long time governed the markets.

Much greater analogies are found in the private commercial law of developed legal systems, even when full allowance is made for the wide reception of foreign law, and the leveling process in commercial legislation of modern peoples. It will here suffice to point out the similarity between Germanic commercial law of the later Middle Ages and Indian law. According to the code of Manu,2 one acquires "ownership of an object who buys it at the market before witnesses," whether the seller himself was the owner or not. This corresponds fully with the fact that, in the later Middle Ages, "whoever buys a stolen article in the open market, is protected against the claim of the true owner." 3

These examples, however, lie outside our field, in that they do not any longer represent the theme of primitive law. For this reason, the writer forbears to discuss the other analogies of this and later stages of legal development. . . . In any event, it may be apparent from the facts introduced by this study that the field of commercial law involves a fulness of problems, of interest for ethnological jurisprudence, as well as universal legal history.

1 Hanoteau and Letourneux, II, pp. 79, 390.

2 Book V, Sec. 201 (trans. by Jolly); cf. also Maine, “Early Law and Custom," pp. 194, 195.

3 Heusler, II, p. 215; Schröder, “D. R. G.," p. 664.

4 It may be added, that in China, the raising and lowering of a flag was a signal for the beginning and ending of Market Peace, precisely as was the case in many German places; cf. Biot, p. 213, No. 5, with Schröder, "Rolande," pp. 16, 23 seq.

CHAPTER XXIV

BARTER AND TRANSFER

SECTION 1

BARTER1

1/Barter is based on the idea of equalizing values. A man

gives something and receives something in return, and this relation of giving and receiving is not governed by chance; rather, the persons stand in an economic relation to each other, a relation in which values are equalized. The tertium comperationis of both acts is the equivalence of their value.

2. The barter value is not the same as the value in use; for it is not the value that is determined by the individual's need, but the value that is fixed by the social function of the article in general commerce. Under value in this sense, we understand the extent of the economic worth of an article, which is determined by its comparison with other wares and their economic uses. It is incorrect to say (with Marx) that value always corresponds to the labor that the article represents. Value is rather determined by a whole series of social factors: the demand for the article, the effort to obtain it, the greater or lesser frequency with which it is offered for sale, the facility with which it is obtained and its greater or lesser rarity, which is by no means only a matter of labor conditions but is rooted in natural circumstances. All these factors will affect value, and will cause the thing even though it may always represent the same amount of labor - to assume sometimes a greater, sometimes a lesser social importance.

3. It is not only need that is of importance in barter. A number of other, mainly psychic circumstances come under consideration, especially the human love of variety which is strongly developed, particularly in nations that have little self-control and

1 [Reprinted, by permission, from JOSEF KOHLER, "Philosophy of Law" (Albrecht's trans.), Boston Book Company, 1914 (Philosophy of Law Series, Vol. XII).]

little mental culture. Men grow tired even of what is best and most beautiful and want something else. Then, too, the psychic needs that are esthetic or partly esthetic in their nature have to be considered. People want what dazzles and attracts them, what appeals at the time to their sense of beauty, or rather their mental aspirations. The sudden, unaccountable popularity of a thing, the immeasurable attraction that some article has for people, often plays a great part.

4. It is a misconception to assert that barter grew out of the division of labor. The division of labor naturally increased the need of barter; for whereas, formerly, it might have been possible for the individual to satisfy his own needs and longings himself, it ceased to be so as soon as the individual was limited to the production of certain definite wares. It is true only, that while otherwise the tendency favoring barter transactions was based more or less on chance, the whole system of economic production made it essential.

5. The backbone of barter is, as has been said, the equalization of value. This idea of equalization increases, as soon as articles are produced which are not regarded as a means of satisfying personal needs, but are intended to represent values. While, otherwise, value is an x which is contained invisibly in the objects a and b, value now, at least on one side, appears openly. It is no longer an x but a certain quantity, v, and the question of value which otherwise comes under consideration in respect to both the objects a and b (because in both value lies invisibly dormant), need now be considered only in connection with the article a, since the exchange value of the value-representative, v, is given, representing clearly and unmistakably to everyone a definite value. In this way money originates. This not only means great progress in the valuation of things, it being possible to reduce the value of everything to a money unity, just as when we bring all fractions under one denominator; but a second advantage is involved, an advantage with the most momentous consequences, that the value-representative, money, is not, at the same time, a means of satifying any one special human purpose. If one who wishes to dispose of article a, wants to obtain article b, he must, in a period in which barter is the only means of commerce, seek a person who wants article a, and at the same time has article b to dispose of. In other words, the transaction as regards a and b depends upon chance

1 "Einführung in die Rechtswissenschaft," p. 69.

chance