In the first instance there can be no question but that these divisions of territory, whether Saxon or Irish kingdoms or English shires, Irish tuaths or Welsh cantreds, represented tribal divisions which became, from various causes, unequal.

Continuing with Ireland as an example, the tuaths or tribe territories were of varying size, from very small to very large, like the English shires, which very likely followed the lines of former tribal divisions. Many are said to be represented by the modern baronies, which retain the ancient names. But the divisions now either are or incline to become territorial; the real or supposed tie of blood conflicts with the local habitation, connected with long residence within a definite territory; the boundaries are unwritten traditions marked and known by a stream, the crown of a range of hills, or a notable old tree, or a stone set up as a mark from which the line of hill or river boundary would run easily. This was a place where negotiations between the different tribes could be effected, where agreements could be made and trading carried on. The only really important division for administrative purposes was the hundred, the division mentioned by Tacitus (Germ., c. 6), a division which formed the basis of local government, as the cantrev, cantred, or hundred, all over the Islands. The General Assembly. No doubt the Althing or Folkmoot, the trading fair, the Court of Justice, the Synod, was held in such places, of which evidences are dotted about all over the Islands.5 But I suspect that long before Henry's day the general assembly of the tribes, except so far as it was a military council, had surrendered its powers into the hands of the chiefs, just as the popular assembly in feudal England had given way to the king's officers and the manorial courts.6 The Things in the Orkneys would seem to have remained a reality until a later day, owing to the limited space in which the family society was packed, and the inclination of the community to assert its independence of Norway, and sometimes of its earls. But even here, so far as we can judge from any surviving records, it acted mainly as a military council, a place of settlement of disputes between rival earls, and possibly as a place for declarations of outlawry. Not infrequently when the king called a Thing in Norway for a levy

of men or to collect scat, the bondes came armed to oppose him and to proclaim grievances.

NOTES.1 These views, I am aware, are not in keeping with those of our historians generally, who, following very closely the German writers on the tenure of arable land from Nasse onwards, have imagined a racial variation of land use and tenure due to Teutonic and Celtic characteristics, though they never attempt to explain what they mean by Teutonic or by Celtic, except that the good things, such as improvements in the mechanism of war, are supposed to have originated with a superior race called Teutonic, and evil habits, such as fosterage, with an inferior race called Celtic. 2 Observations on the State of the Highlands, by the Earl of Selkirk, 1806. 3 E.g., Rhys, King of South Wales, was in the last quarter of the eleventh century Henry's justiciary and deputy. 4 A.L. Irel., iv. 381.

5 A man out of every holding, of chieftain grade, is to go with the king to make laws and interterritorial regulations (A.L. Irel., i. 159). The law provides recovery by distraint of the food tribute supplied to the assembly by one person for another (ibid., 160). The assembly is mentioned iii. 241. See Appendix A. 6 How completely the Commune concilium had passed out in Angevin days is shown by the provision of Magna Charta, c. 14, for summoning specially the greater barons and omnes illos for assessing an aid or scutage.

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CHAPTER VII

THE CONTRAST OF THE COMMUNAL SOCIETY-continued

THE CHIEF AND HIS GIVING OF STOCK

The Chieftain Class.-Let us put to one side for a time the office which we inevitably view from the Roman standpoint -the king-the king, who seldom or never in his rounds for plunder or for exhaustion of supplies may happen to come through our district; the king, who is to the ordinary tribesman merely the distant supreme director and organiser of warfare not always sought or appreciated by the subordinate unit, a leader whose dues, whether the food of tenancy or the ferm of one night's entertainment, are paid to him through the local chief or lord of the manor; and let us leave with him the general assembly of the people, at which the local chief

may only occasionally require the presence of his tribesmen to support him in disputes with the chiefs of other districts or in his bargains with the king or with the Church. Let us consider the chief as local representative and as local ruler.

Much of what is said in every relation about the chief applies to the king, who is only a glorified chief, whether we are speaking of law or land tenure or finance, of Henry and John or Roderick and Dermot, or Alexander; but the chief as such is a larger figure in the daily life of any medieval society than the king. Away from politics, which under customary law may be said to be non-existent, or at any rate confined to the Church, and away from foreign war, which was ever fitfully imminent unless the invader could be persuaded to restore the cow or the woman or assisted to attack someone else, mediæval society centres round the chieftain class.

All such society, governed by unchanging custom, whether it was a communal society resting on the sept or a feudal society resting on the manorial unit, was aristocratic; the grades were various and distinct; there was no pretence to the paradoxical absurdity of equality which was incompatible with liberty; the gradations of rank with their privileges and duties are as strictly defined in the early feudal society as in the society governed by the tribal chief from which feudalism developed.

Although the customary law minutely covers the whole community, guarding and regulating all men's lives from the cradle to the grave, although it recognises that in true democracy the unfree man of to-day may be the freeman of to-morrow, the freeman a chief, the chief a king, yet, like our law to-day, it concerns itself for the most part with the rights, privileges, and duties which pertain to those who in a society regulated by status stand for and speak for the community, those who exercise the leadership, the families of wealth and breeding who are able to pay the fees for the support of their rights in the courts.

Though there are many scattered references to this subject in Welsh, Scandinavian, and other records, the Irish Brehon law gives us the best picture of the gradations of the chieftaincy in detail.

Good birth, apart from wealth, was a necessity. Nobility in a society bound together by kinship rested in the first instance on long descent and purity of blood; society fully believed in the transmission of qualities of leadership from parent to child; the Irish aire or non-noble chief could become a flaith or noble only if his father and grandfather had been non-noble chiefs. But wealth was also a necessity. Given the necessary purity of blood, he could become a flaith only provided that he had the property qualification, the wealth in cattle necessary for chieftainship.1 Wealth is viewed as the capacity to give and to protect,2 the tribal chieftaincy only differing from our commercial rich men in that they claimed, and were proud of, their kinship with the poor.

An interesting type of chieftain, whose position would appear to have depended solely on his wealth, was the brewy or brughaidh, a chief who exhibits to us the social side of the community. He was the innkeeper of the tribe, whose business it was to keep a place of public entertainment for travellers at the meeting of roads. He must have roads to his house, must keep a light burning at night, and employ a number of men to guide travellers. He must not warn off or refuse anyone. For this purpose he had provision made for him by the community, was in the nature of a magistrate, and ranked as a person of very great importance. He was entitled to the same privileges as the king.3

It must, however, be remembered that this evidence of the social side of tribal life did not extend to a member of the tribe or sept across the creek, who might be an enemy, unless he was vouched for by some freeman, or unless he were a trader or other under the protection of the chief or king. It was the provision for the social amenities only in the small community itself, subject to a common law of hospitality exercised by all early communities towards the stranger "that is within thy gate" if he is passing swiftly by, or if he stays safely under the protection of the chief for a longer period.

All the relations of life, social, political, legal, group themselves round the local chief, and as we consider each in turn

we find him as the pivot on which society moves.

He must be of the purest blood of the tribe, and he must have wealth and must be willing to part with it. The true chieftain in all times spends himself for the community in the place of living on it; his power rests upon his willingness and his ability to give, and, like Pitt, he dies poor; until recently the echo of this best feature of early society was with us in an unpaid and non-political county magistracy and an unpaid legislature, who gave freely of their energy and wealth for the State.

The system of cultivation of the common land, the customary laws for its division among the community, the regulations for use of the pasturage, the whole system of joint responsibility for injury, rested on the assumption of the common possession of the soil by the group family. The chief was the head of the group family; he owed his position, his influence, in some cases perhaps the affections of his followers, to the fact that he represented to them the most distinguished living man of the descendants of their common ancestor; he stood for the traditions and the history of the group family in the past; as the representative of the group family in the present he accepted for them in the first instance the responsibility in all matters of contract and tort; it is he who distrains and is distrained upon for the family; it is he who is the hostage surety for members of the community, risking repayment from his often remote kindred. He was guardian of their rights of territory, arbitrator in their disputes; he was the leader of his own folk in war and peace. He ordered the cultivation of the common fields; he took his share as one of the kinsmen in the common pasture; he had been fostered by freemen of the family; his personal attendants, for whom he finds horses and arms, are of his kin; as he is responsible for the torts and contracts of the community, they in their turn who, by receiving stock from him, acknowledged that they took protection from him, shared in the responsibility for their kinsmen and paid him their share of the joint contract or loss.4 In return for his services to them, the people of the group family fed him and tended him; as Tacitus says, they present to him cattle and grain as an honour and for providing him with necessary