that which would be developed by any Aryan race engaged in fighting and overrunning territory under some sort of discipline.
A tendency to further differentiation requiring further laws was the land organization. The lands were parceled out to be occupied by individuals or by families and were inalienable, but lands that were occupied in this way were leased. There were two kinds of occupation under the possessors of land. The occupation by free farmers was by those who hired cattle to be run on a rental of one in seven. These contracts were solemnly and publicly made. This legal development belongs clearly to the pastoral stage. There was also the occupation of lands which the unfree were allowed to occupy, for which they made payments in produce. There was, of course, little law as to contracts. Trade was carried on by way of barter and payments were made in kind. Great stress was laid upon written contracts, but this must have been very late in Celtic law, and after they had gained a written language.
These tribes showed a distinct advance in some respects, although this condition did not exist until they had long been settled. Public assemblies of the tribe are ordinary among the Aryans. Among the Celts this custom developed until regular assemblies were periodically held. These assemblies had possibly been originally religious, or rather they were held on occasions of religious festivals. They were composed of the king and sub-kings, the heads of the clans, Brehons, other distinguished men, and the bards. At these assemblies the laws were recited. Some of the laws were in rhythmical form, showing extreme antiquity. No doubt such laws had been long in use. At the great assemblies modifications of the laws could be proclaimed, a new law announced by the king, with the approval and assent of those attending the assembly, which is the exact form of legislation in use under the early Norman kings in England. How far back in Aryan history this power of initiating legislation goes, there seems to be no means of ascertaining, but it certainly means that these Aryans had ceased to regard their laws as of divine origin, and it probably was the result of the laws ceasing to be in the custody of the priests.
The means by which disputes were determined present a unique development. These social aggregates called clans were attempting to develop customs that would cope with the disintegrating effects resulting from quarreling, fighting, injuries, and killings within the clan. It has already been explained that there were no tribunals, officers, prisons, or means of giving judgments or of executing them. The only method of redress for violations of the customary laws resulting in injury to others was self-help, backed by public opinion, and by making the kindred of the injurer responsible as a whole to the kindred of the injured. The individual in such a situation was helpless and the primitive mind did not comprehend the conception of an individual. In such a condition where self-help was necessary, private war would certainly result. Curiously enough, in Chicago to-day we see this same principle at work in a reversion to the savage state. By law the trade in intoxicating liquors is put beyond the pale of the law. The traders in intoxicants, called bootleggers, treating this lawless occupation as an open field for profitable exploiting, seize upon a certain district as their own, either by a right of occupancy or by the strong hand. This district is invaded by other purveyors of unlawful goods. The occupants respond with self-help in the form of killing the invaders and retaliatory killings go on. The result is private war in a community supposed to be fully policed. In other places the police, being engaged in the unlawful traffic, can preserve peace.
Among savage men where the feeling of kindred was strongly developed, the natural result of an injury would be that the kinsmen of the injured would seek redress and would immediately harry the kindred of the injurer. Probably the first appeal by the injured would be made to the whole clan. If the fact were plain, the public opinion of the assembly of the tribe might be enough to afford peaceable giving of redress, but since the only redress for a death was another death, it was certain that some other method of compensation would be sought; so there grew up a compensation system or tariffs for injuries, where the kindred of the injurer became bound to pay the compensation to the kindred of the injured. It must be noted 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
