A history of the Highlands and of the Highland clans

JUDGES AND LAWS. 75
the Druids, was unknown to tlie Celtic tribes, and that their history,
laws and religion were preserved by tradition. There is reason to
believe, that tradition supplied the place of written records for many
ages after the extinction of the Druidical superstition. Hence among
the Scots, traditionary usages and local customs, long supplied the place
of positive or written laws. It is a mistake to suppose, as some writers
have done, that the law consisted in the meie will of the Brehon
or judge. The office of Brehon was no doubt hereditary, and it is
quite natural to infer, that under such a system of jurisprudence, the
dictum of the judge might not always comport with what was under-
stood to be the common law or practice ;
but from thence, to argue that
the will of the judge was to be regarded as the law itself, is absurd,
and contrary to every idea of justice. As the principle of the rude
jurisprudence of the Celtic tribes had for its object, the reparation, rather
than the prevention of crimes, almost every crime, even of the blackest
kind, was commuted by a mulct or payment. Tacitus observes in allusion
to this practice, that it was " a temper wholesome to the commonwealth,
that homicide and lighter transgressions were settled by
the payment of horses or cattle, part to the king or community, part
to him or his friends who had been wronged." The law of Scotland
long recognised this system of compensation. The fine was termed,
imder the Brehon law, eric, which not only signifies a reparation, but
also a fine, a ransom, a forfeit. Among the Albanian Scots it was
called cro, a term preserved in the Regiam 3Iajestatem, which has a
whole chapter showing " the cro of ilk man, how mikil it is."* This
law of reparation, according to O'Connor, was first promulgated in
Ireland, in the year one hundred and sixty-four.-j- According to the
Regiam Majestatem, the cro of a villain was sixteen cows ; of an earl's
son or thane, one hundred ;
of an earl, one hundred and forty; and that
of the king of Scots, one thousand cows, or three thousand oras, that is
to say, three oras for every cow.
Besides a share of the fines imposed, the Brehon or judge obtained
a piece of arable land for his support. When he administered justice,
he used to sit sometimes on the top of a hillock or heap of stones,
sometimes on turf, and sometimes even on the middle of a bridge, surrounded
by the suitors, who, of coui-se, pleaded their own cause. We
have already seen, that under the system of the Druids, the offices or
religion, the instruction of youth, and the administration of the laws,
were conducted in the open air ; and hence the prevalence of the prac-
tice alluded to. But this practice was not peculiar to the Druids ; for
all nations, in the early stages of society, have followed a similar custom.
The Tings of the Scandinavians, which consisted of circular enclosures
of stone without any covering, and within which both the judicial and
legislative powers were exercised, afford a striking instance of this.
According to Pliny,:]: even the Roman Senate first met in the open
• Lib. iv. cap. xxiv. f O'Connor's Dissert. \ Lib. viii. c. 45