Maine, in referring to those facts, after observing that the progress towards a complete administration of justice is usually slow and gradual, well remarks that "the Commonwealth at first interfered through its various organs rather to keep order and see fair play in quarrels, than took them, as it now does always and everywhere, into its own hands." The manners of the old Norsemen, as displayed in the Icelandic Sagas, throw great light on the steps by which the right of private revenge was gradually lost. The law of retaliation was fully recognised, but it had become customary, in cases of homicide even, to accept a compensation in goods or money. Sometimes one of the parties to the quarrel claimed himself to award the compensation to be made, and it was esteemed a great honour to be allowed thus to act. At other times, the terms were fixed by an arbitrator, whose decision was formally accepted by both parties. If the wrongdoer refused to make compensation, and the injured party decided not to exercise his right of private revenge, the matter might be dealt with at law before the Thing. Should the judgment of the court be in favour of the complainant, and his opponent not pay the fine and fees to which he had thus become liable, judgment might be followed by outlawry. A suit for homicide was seldom, however, in early times, carried to that length, as, says Dr Dasent, "the tendency of the whole Icelandic legislation was not to put forth the full force of the law, but rather to make matters up." For this end the more enlightened chiefs were always ready to terminate, by peaceful means, a suit which might possibly end in bloodshed, if even the proceedings were not forcibly put a stop to. In fact, all the suits mentioned in the Njal's Saga were settled "by the award of daysmen and arbitrators, who laid down such

"Early History of Institutions" (1875), p. 279, seq.

terms they thought would meet the justice of each particular case." 1

Down to a time but little preceding the introduction of Christianity in Iceland, the system of trial was extremely defective, and the award of the court could not be enforced without much difficulty. Probably the defects were due chiefly to the fact that the system was established among men who, having abandoned their native country as a protest against authority, were not yet prepared to abdicate their natural rights into the hands of the state, although they might in the abstract recognise the value of such a course. The Icelandic Law Court would doubtless, therefore, be an institution peculiar to that country. The Thing, however, was perhaps common to all the Scandinavians, and in the first instance it would seem to have represented the authority of the chief. Whether a ruler or only a leader, the head man would usually be looked to for the settlement of disputes among his followers, either as judge, by virtue of his office, or as arbitrator. Among the Abyssinians, if two persons have a dispute, one of them proposes to refer it to the chief, or dainya, a mode of settlement which the other usually accepts, and after hearing the statements of the parties and their witnesses, the chief decides the question. In cases of homicide or bodily injury, however, the offender is brought before the chief, as the judge who is to take cognizance of the offence, and where fines, or dainyet, are inflicted, half of the sum paid is received by the chief.3 Probably something analogous to this obtained among the Germanic tribes in the time of Cæsar. According to Tacitus, offences deemed heinous, which included homicide, adultery, and theft, were compensated for by fines of

1 "The Story of Burnt Njal," Dr Dasent's Introduction, p. 140, seq. "Life in Abyssinia," p. 329, seq. Parkyn's Do., p. 362.

2

3

horses and cattle, part of which went to the State, and part to the persons injured. It was the State to which was committed, says Kemble, "the duty of compelling the injured person to receive, and the wrongdoer to pay, the settled amount," although the right of feud continued in full force where the State either could

not or would not perform that duty.1 The early English had not only progressed so far in the mode of enforcing the fines inflicted for injuries, but they had established a fixed scale by which all fines were to be ascertained. This was the law of wergyld which, in some sort, forms a key to Saxon institutions. Mr Kemble, who has so profoundly studied those institutions, compares the wergyld fixed by the laws of the different Saxon kingdoms, and describes its origin and operation. He says:A sum, paid either in kind or in money, where money existed, was placed upon the life of every free man, according to his rank in the State, his birth, or his office. A corresponding sum was settled for every wound that could be inflicted upon his person; for nearly every injury that could be done to his civil rights, his honour, or his domestic peace; and further fines were appointed according to the peculiar adventitious circumstances that might appear to aggravate or extenuate the offence. From the operation of this principle no one was exempt, and the king as well as the peasant was protected by a wergyld, payable to his kinsmen and his people. The difference of the wergyld is the principal distinction between different classes; it defined the value of each man's oath, his mund2 or protection, and the amount of his fines or his exactions." 3

1 op. cit., vol. i., p. 269, seq.

2 This reminds us of the munda or head man of the Indian aborigines, supra, p. 139.

3The Saxons in England," vol. i., p. 276. Mr Kemble elsewhere (p. 153) says that the main distinction between even the king and the rest of the people, consisted in the difference of their wergyld.

The Irish eric answered to the Saxon bōt, and was the fine which criminals were condemned to pay, and which varied in amount according to the nature of the offence. In cases of homicide, the wife or children of the deceased received the greater part of the fine, showing that the remainder went either to the tribe or the judge, and if the murderer fled or could not pay the Eric, it had to be paid by the "tribe" to which he belonged. It is one of the principles of the barbarous lex talionis, that every person within a certain degree of relationship to the original offender is within the feud. Moreover, among primitive peoples all blood relations belong to a common clan, quite apart from the tribe as members of which they may happen to be numbered. The clan being only an extension of the family, consisting indeed of several families who trace their descent from a common ancestor, it is not to be wondered at that when a fine, enforcable by the State, is substituted for private revenge as a punishment for

homicide or other offences, the clan assumes the liabilities which the "family" of the offender had previously incurred. The institutions of the early Irish, as exhibited in the Brehon Laws retained evident traces of that early condition of society. It is true that Sir Henry Maine supposes the Irish "family," in its political sense, to have been constituted in a manner quite different, from what we can conceive as growing out of blood-relationship. It was distributed into four divisions, having altogether seventeen members, the junior of which, the Geilfine division, consisted of five persons, and the others of four each. On the birth of a new member in the Geilfine class, its eldest member was

1 O'Reilly's Prize Essay "On the Nature and Influence of the ancient Irish Institutes, commonly called Brehon Laws, &c." Trans. of the Roy. Irish Academy, vol. xiv. (1825), p. 188.

transferred to the next grade, and so on, the oldest member of the highest class ceasing to belong to the organisation. Sir Henry Maine explains this peculiar system by reference to the Roman Patria Potestas, and he suggests that it was founded on the order of emancipation from paternal authority. The Geilfine, the handfamily, "consists of the parent and the four natural or adoptive sons immediately under his power. The other groups consist of emancipated descendants, diminishing in dignity in proportion to their distance from the group which, according to archaic notions, constitutes the true or representative family." The persons who were from time cast off from this organisation did not, however, lose all relationship with its members. Sir Henry Maine points out that the same word "Fine" or Family, is applied to all the subdivisions of Irish society, and he supposes that the "Fine" is not the tribe, nor yet the modern family, but the Sept, "a body of kinsmen whose progenitor is no longer living, but whose descent from him is a reality, and neither a myth nor a fiction." This Tribe or Sept is a corporate, organic, selfsustaining unit," whose continuity depends on the land which it occupies, and which possesses chattels distinct from those of its individual members. Apart from this possession of common property, it is evident that the Irish Sept has much in common with the clan of still uncultured peoples, and betokens a primitive condition of society in which blood-relationship is the most important element in social organisation. The responsibility of the Sept for the conduct of its members has its

1 "The Early History of Institutions," p. 208, seq. Have we not in the system referred to in the text, something analogous to the "Grades of Relatives" of the Chinese, and the Primitive Classificatory System of Relationships which its discoverer, Mr Morgan, has elaborated in his very valuable work, "Systems of Consanguinity and Affinity of the Human Family"?