LITMIR.BIZ

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that these injuries to person or property are merely private injuries. There was no law of crimes. This development seems to have been common to all the Caucasic tribes. There being no way of making new law, except as it should grow up in the customary way, it must be apparent that many ages of arbitrations and peaceful settlements were required to produce a set of customs upon this subject of compensation in property. Money was a late invention, and the tariffs were originally in some other kind and gradually became changed into money. But it is fairly certain that this sort of peaceful settlement, if the facts were in dispute, would not be acquiesced in. There was no way of making the settlement compulsory. Before the assembly of the tribe some kind of proceeding would take place to ascertain what the facts were. When the town meeting decided what the matter was, the injured could exert the right of self-help.

      Then, as now, difficult cases would be the ones that would arise. Special knowledge of the customs would be required to decide them. Either the priests or the older and wiser men would be called upon to say what the laws were. Among the Celtic tribes the Druids were originally the custodians of the laws, but the Irish laws show that the Druids had been supplanted by a trained body of men called the Brehons, or judges. The haphazard legal knowledge of the priests was insufficient.

      The Brehons were originally any of the learned men, and such a Brehon was attached to the court of every king or sub-king. If this be not romance, the Brehons did not hold a judicial office, but like the Roman jurisconsult belonged to a profession. They came to be legally trained men who had long studied the laws, but they had no compulsory jurisdiction. All their judgments were given in cases where the parties submitted a controversy to a particular Brehon. The party complaining could select any Brehon he pleased, and there seem to have been at last developed regular sittings of Brehons in courts. The Brehon received a customary fee of one-twelfth of the matter in dispute.

      All acts against the person or the property were private injuries, and the redress was sought by the injured, if he was living, or by his family. The Brehon selected considered the case, but he seemingly did not settle the facts. They were settled by some local assembly in the regular Aryan public fashion. This settlement of facts having been submitted to the Brehon, he made his judgment and declared the compensation. This compensation was based upon rank. Where the injured was subjected to disgracing or humiliating acts, the compensation was increased, or, as we say, punitive damages were given. For the taking of human life, the compensation was the regular fixed price by law, if the killing was unintentional. If premeditated, the compensation was doubled. It was still heavier, according to the wealth of the injurer. This is the simon-pure law of punitive damages, at the common law, for a wilful injury. The damages for death went to the kindred. If the redress were for an injury to property, the restitution was in kind, double the amount of the injury. Here appears the lex talionis with a penalty added.

      The Brehon procedure was made as compulsory as possible by the customs of distraining and of fasting. In the custom of fasting appears the old primitive idea of a violator of the custom being put to shame. The creditor whose debt was unpaid proceeded to the door of the debtor, just as in India the creditor is now accustomed to do, and at the door the creditor sat fasting. If the debtor submitted to the fasting, he was considered guilty of a most disgraceful act. He could stop the fasting by an offer to pay, or, as we say, by a tender of the debt. Fasting also could be stopped by the supposed debtor demanding a hearing before a Brehon. The claimant could proceed in the first instance by a distress, by seizing the property of the obligee by way of self-help, just as the landlord could distress at common law upon his demand for rent. The defendant in the distress could stop the distress by an offer to submit the case to a Brehon, just as the distress at the common law was stopped by a replevin, which was in fact the invoking of the judgment of a court as to the lawfulness of the distress. When the Brehon had given his judgment, a distress or distraint could be used to enforce it, and if there were no property, the person of the debtor could be seized.

      This development in the Brehon laws is important as showing among primitive Aryans an attempt to reach an agreed tribunal, whose judgment could be enforced. It is characteristic of every primitive system, that before a tribunal can possess a power of decision in a controversy, or as we say, jurisdiction to decide it, the power or jurisdiction must be given by agreement of the parties to the dispute. It is also of importance because it is recognized that the tribunal must be endowed with special and expert knowledge of the laws. This means in modern phrase that lawyers are a necessity. The sequel in the history of law will show that the main difficulty in the law has not been in the law itself, or what the rule of law is, but rather, first, in devising an adequate tribunal to decide fairly the controversy in accordance with law, so that a rule of law applicable to all alike may be applied to all alike, and secondly, in so ordering procedure in applying the law that a right given by the law may always meet with proper redress. No little part of the difficulty has arisen in keeping the learned class of lawyers capable.

      Before passing from this law of the Irish Celts, it may be said that substantially the same general organization of clan property existed among the Scottish clans in the Highlands, and this clan system of property passed on for many centuries until the exigencies of supposed statesmanship required the reduction of the clans to the sway of orderly English government. The legislators, being totally ignorant, apparently, of the kind of ownership of real property in the clans, and having no apparent knowledge of the fact that a part of the land of the clans belonged to each member of the clan, vested the whole real property of the clan in the chief. Ownership that had existed for many ages was ruthlessly destroyed in this way. Very few of the chiefs were worthy of such a responsibility, or were enlightened enough to deal fairly with their kinsmen in the clans. The consequences were no less deplorable in Scotland than in Ireland. The great body of each clan became mere renters, cotters, and tenants at will. The time came when it suited the chief to dispossess the helpless occupants whose titles ran back over thousands of years. The remorseless evictions were, as a matter of fact, based upon later laws which, let us hope unwittingly, simply confiscated rights in property that had been accepted and recognized for ages.

      Before leaving the subject of Aryan laws, it will be proper to make some general observations on the Celts. If we may accept the Brehon law, the Celts in Ireland were further advanced in many ways than the Celtic tribes on the continent. The general organization on the continent was the same as that indicated in the Brehon law. The clan was divided into families, and the clans formed a tribe, and several tribes coalesced into a nation. Over each tribe was a chief and the chiefs of the clans made a sort of nobility. The Romans called, after their own analogy, these nobles the Senate. There had been in Gaul a king of federated tribes but those kings had been abolished, and there had been substituted an elective vergobret who had kingly functions. These human societies were in many respects feudal, made up of patrons and clients, to use the Roman terms. Below these classes were the serfs and slaves. In many places the lord lived in his larger timber mansion with the houses of his dependents surrounding.

      When Caesar came into Gaul in 59 B.C. he found the Druids a powerful class. They were still in the old savage way performing human sacrifices. Either the Druids or the chiefs dispensed justice, settling disputes not only between individuals, but between the tribes. There was a peculiar anticipation of Romanism. If obedience was refused to the edicts of the Druids, the disobedient were excommunicated and denied religious observances, nor could they ask for justice before the tribunals.

      These Celts were exceedingly advanced in certain ways just as were the Britons in England an advanced race at that time. The Gauls carried on commerce by means of their two-wheeled carts, so common in rural France to-day. They had manufactures of iron and pottery. One-half of the black and red ware in museums to-day that passes for Greek, came out of the great pottery factories in the Auvergne. They were experienced miners and they had among them large amounts of gold and silver. As cultivators of the soil they had taken on the skill of the Iberians submerged among them. They used a coultered plough and a reaper for wheat which Pliny the Elder asserts was a trough with dented edges made into teeth. It was mounted on two wheels drawn by two horses and the ears of wheat were cut off by the teeth and fell into the trough.

      In southern Gaul the Greek city of Marseilles antedated the Gallic coming into Gaul. The Greeks there had introduced the olive and the vine and the cultivation of the vine had covered southern France and penetrated to Alsace. The

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