has been noted that slavery was a natural development among men just as it was among ants. This fact renders absurd the contention between two men considered jurists, Kohler and Stammler, as to whether slavery was right.1 We may as well ask, is slavery among the ants right? It is idle to put the question as to primitive men, because they had no doubts on the subject. To them it was natural. Even to Plato or Aristotle it had no moral aspect. It took long ages to develop among men any conception of the rightfulness or wrongfulness of slavery. The fallacy of ascribing to primitive men our ideas of right and wrong ought to be apparent to any thinking man.
The joint family property still continued among these Aryans. The same form of patriarchal family or household is found among the Semites, the Indian Aryans, the Slavonic tribes, the Celts, and the Germans. It received its highest development among the Romans. Yet each male member of the family could for himself attain property of his own, except possibly among the early Latins. This family estate in land at first was inalienable by the head of the family, and upon his death it still remained to the family. It was considered as granted by the tribe to each family. The personal estate also was not alienable, but upon the death of the head of the family one-third was reserved to the family and one-third went to the deceased’s funeral equipment, while the other third was spent in carousing when the corpse was cremated. It is needless to say that in later times the reservation of a third to the dead man went to the church. This early distinction between the inalienable land property and the personal property was of immense influence in later law. It led directly to the substitution of the eldest son for the father as inheriting the family estate in land, with the duty of providing the common home and endowing the daughters, who were excluded from succession to any interest in the landed property. The making of a will was, of course, unknown, for it could not be conceived of until language came to be written. But this supposed necessity and the custom of preserving the family property led to various legal rules that were later developed.
There remain various collections of law of different Aryan tribes after the great Aryan migrations, which are not yet properly classified and arranged. Developments, hundreds—it may be thousands—of years apart, are found side by side. Primitive collections of such laws are the Hindu collections in their sacred writings, and the Brehon law of the Celts, and the Germanic laws that are in some respects more primitive. The Teutonic customs will be reserved for the story of English law, in order to show its beginnings with the Anglo-Saxon customs grafted on the Briton or Celtic older organization of the conquered Celtic tribes. Although these Hindu and Brehon laws of certain Aryan tribes are in point of time later than the Babylonian law, we can use them here as illustrating the more primitive condition out of which the civilized systems of law arose. The Hindu laws are called the Laws of Manu. While the collection of these laws is, historically speaking, late, they embody much information on the ancient primitive customs of the Aryan race. The religious and legal customs are all grouped together, just as we find them in the laws of the Hebrews. Many customs appear to be obsolete, but the customary law is older than the sacred law. All the laws are given a divine origin and are not subject to change. The caste of the religious men, the priests, as the highest, next the caste of the warriors, next those of commerce and agriculture, are plain, while the servile classes, at least, represent the subdued and subject race. The patriarchal system, with the power of the head of the family, is well developed and the joint family property is in the family ownership. It is a sort of corporate ownership. There is the family home where all the agnates (relatives in the male line) and the unmarried females are entitled to a home. This is generally a collection of houses. This home and property is enjoyed in common and no account is kept of expenditures for each of the family, although the expenditures are by no means equal. The duty is added to discharge the debts of the dead, for the dead man with debts unpaid will suffer tortures and the duty is recognized to deliver him from torture, much as in later times the ignorant belief of belated primitives was and is that the soul of the deceased must by pious offices be ransomed from purgatory. This family system of owning property, with the added provision of the right of any male member of the family to acquire property for himself, provided he made no use of the family property, is recognized. The presumption is, however, that all acquisitions by members of the family are family property until they are shown to be otherwise. At the time of the Laws of Manu and ever since, a partition can be required by any of the agnate (male) members of the family clan, but this, of course, is a comparatively late development.
The Hindu system of law is of no particular value in an account of legal development, beyond the fact that it represents the stage of tribal organization suited to a conquering race which the Aryans developed. The priestly caste is exceedingly powerful. The patriarchal family with great power in the head of the family and with property segregated to the family is apparent. The exigencies of war had developed a warrior caste, held next in honor to the priestly class. The conquered community living in its small tribe village communities is a prominent feature of Indo-Aryan life. These Aryans came into India from the Persian uplands, whence, in after ages, other conquering hordes were to come and to reduce the Hindu Aryans to a servile condition in many parts of India. At some time these Aryans, however, developed the idea of individual responsibility, for in the Institutes of Manu is the deduction as a theory of human life, which is a great advance upon the primitive non-recognition of individual responsibility: “Singly each man cometh into the world, singly he departeth, singly he receiveth the reward of his good deeds, singly the punishment of his evil deeds.” But this idea was not carried into the law of property.
Another migrating Aryan horde, called the Celts, moved in successive waves westward through Europe from some center whose location is hotly disputed. In their conquering career, they overran most of France, Spain, northern Italy, and the British Isles. They found a race, probably Alpine, in possession and subjugated and reduced it to a condition of serfdom, and in some instances amalgamated with it. It must be kept in mind that the conquering Celts were at a much lower stage of civilization than the dwellers in France and the British Isles whom they conquered. The subject race, as is usual, gradually civilized the conquerors. A collection of Celtic laws remains, but they are a mosaic of laws, centuries apart; some very archaic and others much later. Many of these laws are decisions of judges called Brehons. These laws have not been edited with sufficient discrimination to enable absolutely certain conclusions to be made, and in some instances it is difficult to determine whether we are dealing with fiction or fact. Perhaps there was imported into these laws some remnants of the Roman occupation of Britain.
These Celts had the regular Aryan tribal or clan organization, divided into patriarchal families, but they had developed a confederation of tribes, each clan claiming to be descended from a common ancestor; but in its later form, a clan could open to let in others not descended from the ancestor. The families were patriarchal and the family owned personal property at least. The older laws seem to come from the nomad stage. The son succeeded the father as head of the family, but the family was becoming more fluid in that the older sons separated themselves from the family estate, taking some part of the property, while the youngest son stayed at home and succeeded to the estate that remained. In later English law this rule was called Borough English. This feature of the younger taking the hearth was the mark of the Kentish estate of gavelkind, and it was recognized in the English law as a customary local rule of law. The real property was considered as belonging to the clan. At the head of the confederated tribes, the chief had become a king, and under him were tribal kings. Below them were the heads of the clans. The priestly class was called the Druids and, like the Brahmins, they had no little power. It is now fairly well determined that the Druid priests were not Celtic in origin but belonged to the older Alpine conquered race.
The Druids seem to have been originally the judges of the laws, but they had been succeeded by a class of professional judges called Brehons. Each king had his advisers who may be called statesmen, and there was a well developed class of nobles, originally leaders in war, who became statesmen, and their sons, with the king’s advisers and the Brehons, were considered the nobles. The clan property was set apart, so much of it to the head of the clan or sub-king, so much to the warriors, and to the advisers, and to the Brehons. Below the nobles was the large class of free clansmen, and below them was the servile class. The public organization seems about
