man had any rights in the king's courts, he would always have to consider the practical side of his position with the squire and ask himself whether it was worth his while to invoke shadowy rights of law against him. This is where constitutional history fails us.

Slaves. A few words only on slavery. The south of England, so long subject to Roman influence, would seem always to have been more slavish than the rest of the Islands.18 "Servi alii natura alii facto et alii emptione, et alii redemptione, alii sua vel alterius datione servi, et si quae sunt aliae species hujusmodi." Wales, also affected by Roman influence, deals to a considerable extent in its customary laws with serfdom, and we find them in the abbatial records of the Scottish monasteries.19

Though the Irish laws treat at some length of the daer ceile, the freeman who through improvidence or some other cause had become unfree as regards his dealings with land and cattle, he is still a freeman, and his rights and relations to his chief are treated of in the Law of Social Connections. In the Irish laws there are some references to slavery. Injuring thy son, thy slave, thy wife, is a subject of a distress with delay of three days. The commentary adds, "the injury done to thy wife or thy slave is a blot on thy honour." 20 The honour price of a foreign slave is stated as higher than that of an Irish slave (daer), on the ground that the Irish slave has a greater chance of becoming free.21 The serf (mugo) would be freed and the daer person raised by receiving church grades. 22 But the daer person (decenal) only expresses the common man or feini as opposed to the noble.23 There is an eric for a bond servant.24 His value is considered.25

Although we know that there was in early times a very brisk slave trade from Wessex through Bristol to Ireland, Domesday shows us that where the Scandinavian, whether Dane or Norwegian, set his foot, as in East Anglia, the slave and the freedman ceased to be an important part of the community.

The Orkneyinga Saga and the Orkney and Shetland Records do not mention slaves or freedmen in connection

with land, or in fact in any connection, though it is occasionally mentioned in the Scandinavian sagas.

It is a fact which the inhabitants of the British Islands cannot too much or too frequently take to themselves that their freedom in the past did not come by any talking in Parliament, but from the fact that they were geographically a naval people, and that slavery in any form does not fit in with the life of the shipman, whether English or Scandinavian.

It is the life of the sea and not race which divides the Scandinavian odal institutions from the Irish system headed off from the sea. There can be no slavery among the democracy of seamen, "wherever they meet, on land or water, on ship or snow skate, on sea or on horseback; to share oar and bilge scoop, bench and bulwark if need be; even set with each other, as father with son and son with father, in all dealings together."

Slavery would appear only to be profitably employed at any time in agricultural operations such as the growing of corn, sugar, or other crops on large tracts of land, or in the work of manufacturing on a very large scale. For the easy pastoral life the slave was not wanted; for commerce, which required individual freedom of judgment and responsibility, he was unsuitable; and machinery has to a large extent ousted him from agriculture and manufacture, apart from minding the machine, with the exceptions of cocoa and rubber.

The chief's military strength and revenues were proportioned to his wealth in cattle. The number of his followers in war, whether offensive or defensive, were proportioned to his power to pay them in stock or its equivalent for the services rendered and the provisions supplied to him by them. By a resulting action and reaction his wars were undertaken with the object of obtaining cattle to supply his followers.,

But note here that where the geographical position or the physical formation of the land or the convenience of trade routes led, as with the Orkneys, to the substitution of sea life, piracy or commerce for cattle raising, cattle, impossible as a basis of life on shipboard, are replaced by ships.

A military guild system, which expects naval service for a term as a militia force from the freemen in proportion to their interests in the home soil, takes the place of the pastoral system, and gifts of ships and armour take the place of gifts of cattle to the followers.

Where the land was largely level and fit for cultivation, where it had been cultivated for ages and had been long under the influence of Roman agriculture, as in England and Normandy, it was used for agriculture and shaded into the feudal system, the personal tie to the chief with the incitement to perpetual war giving way to the territorial relation to the land and the inducements of commerce; where, as in Norway or in the Orkneys and Northern Islands, there was little land fit for cultivation and the outlet for energy and means of livelihood pointed to the adventure of the sea, the struggle between the personal and territorial tie took a middle form, the personal tie remaining, but the predominance of agriculture over the pastoral life and the call of foreign commerce leading to the earlier substitution of individual for communal ownership; where, as in Ireland and the Western Highlands, level lands of great fertility or lands eminently suited for pasturage lay apart from the main routes of trade and were almost unconnected with Rome, the communal society in a very full form existed until a very late period, a period extended into the most modern times, owing to the deliberate attempts made from time to time to create a perpetual enmity between the two islands, and to the consistent misconduct since towards the weaker nation of both England and Scotland.

NOTES.- 1 A.L. Irel., v. 21. 2 A.L. İrel., v. 15. 3 In A.L. Irel., ii. 223, cain aicillne is translated the law of daer stock tenure. The glossary gives service as the equivalent of aicillne. Cain aicillne the law of service? 4 A.L. Irel., ii. 197-209, appears to relate to the case of the tenant who has absconded. 5 A.L. Irel., ii. 345. 6 As I understand the old commentary in A.L. Irel., iv. 23, last nine lines, it speaks of the renting of tribe lands to unfree debtors. 7A.L. Irel., ii. 231, 277. 8 A.L. Irel., ii. 203, five last lines, speaks of the chief who had taken third security. 9 "Rectitudines Sing. Pers.," Thorpe, Ancient Laws of England, i. 434. 10 Liber de Calchou. Reveden, pp. xxxiv and 456. 11 Libre III., titre viii., sect. 2. A.L. Irel., ii. 217. 15 A.L.

12 See note 9 of Chap. V. (13, 14)

19

17 A.L. Irel., iv. 39,

E.g., in the Kelso

Irel., ii. 28. 16 Y.B. 21, 22 Edw. I., p. 18. 43, 287. 18 L.H.P., lxxvi., sect. 3. Chartularies we find a gift (No. 128, p. 98) by Walter Earl Omibz, translated Dunbar, of two serfs et omnes sequelas eorum, and (No. 124, p. 94) of one Walter, of Adam son of Henry of the Hogge, my native cum tota sequela sua. 20 A.L. Irel., i. 233, 235. 21 A.L. Irel., 22 A.L. Irel., iii. 31. 23 A.L. Irel., iii., 31, commentary. 25 A.L. Irel., iii. 395.

v. 111.

24 Comm. daoer, A.L. Irel., iii. 183, 188.

CHAPTER IX

THE COMMUNAL SOCIETY-continued

COMMON RIGHTS AND COMMON DUTIES

The Common Usufruct.-Let us now turn from the chieftain class to the society itself.

This tribal system, the society of which the chieftain class was the aristocracy, was, in its most archaic form or in its fullest development, a society in which, while there was a large individual ownership of goods and animals, essentials which were necessary for the enjoyment of life as it then was were enjoyed in common, such enjoyment calling for corresponding obligations from members of the community. In this respect, in theory it was a perfect Apostolic society.

It was not only land that was enjoyed in common. From the Irish customs we learn that in Ireland there was a common right of turbary,1 a wood common to all (i.e. the sacred wood at the common fort),2 a common bridge over the stream, a common mill,3 a common ferry boat,4 a common measuring scale and sieve,5 each being the property not of the lord of the manor, an individual not of kin representing an alien federal authority, but of the community itself as a unit.

All were responsible for the upkeep of the common property. The tribesman would suffer distraint on his cattle for leaving to another his work on the common fishing, in respect of his share in using or repairing the common net of the community, or for not helping to spear fish in the common weir.6

The sense of the common responsibility for the welfare of society is shown in many provisions of these customary laws. If a man was ill he was entitled to have a substitute found for him for this common work by the tribe; if he was wounded, a substitute provided by the man who wounded him. As another instance, where a beast is seen near a pit or river at nightfall (if it is likely that it be lost or carried off by thieves, killed by dogs, or drowned in sloughs and waters), anyone seeing it and not relieving it is fined. The Brehon considers the liability of a king for collision between horsemen on his race-course, or for injury from a hole on it which has not been fenced off.

The maintenance of the old was part of the tribesman's duty. Each occupier of land was liable to help to support the old people who had no children.9 When, in the time of James I., the Irish customary law was swept away and no provision was made for the poor, the old Irish, whether kindred or old people without children, were supported by the people themselves under the old custom until 1838. The large remittances sent home by Irish and Highland Scottish emigrants, in contrast to the reluctance of English children to support their parents, testifies to the strength of this tradition.

The son supported his parents, a regular agreement being entered into for this purpose. A gift by the parent to the son on this account was held lawful by the group community or family. But the son need not maintain a father who had left a voluntary mortgage of unfree stock on the property. In case of such maintenance either had a check on the other. The son could annul previous contracts injurious to the family property, and the father could do the same by the after contracts of the son, both on the principle that the family property must be kept intact. There is a curious provision that if the son has not sufficient to support both parents he is to leave the mother to starve rather than the father. "Let him leave his mother in the ditch (grave or buryingground) and bring his father on his back to his house." 10

Bee Law. The provisions of the customary law show a nervous desire to establish in every direction neighbourly