ON THE EARLY HISTORY OF INSTITUTIONS
( H. J. S. Maine, Lectures on the Early History of Institutions, 7th ed., London, 1914 ).
Preface to the First Edition.
In the Lectures printed in this Volume an attempt is made to carry farther in some particulars the line of investigation pursued by the Author in an earlier work on ‘Ancient Law.’ The fortunes of the legal system which then supplied him with the greatest number of his illustrations have been strikingly unlike those of another body of law from which he has now endeavoured to obtain some new materials for legal and social history. The Roman Law has never ceased to be spoken of with deep respect, and it is in fact the source of the greatest part of the rules by which civil life is still governed in the Western World. The Ancient Irish Law, the so-called Brehon Law, has been for the most part bitterly condemned by the few writers who have noticed it; and, after gradually losing whatever influence it once possessed in the country in which it grew up, in the end it was forcibly suppressed. Yet the very causes which have denied a modern history to the Brehon Law have given it a special interest of its own in our day through the arrest of its development; and this interest, the Author hopes, is sufficient to serve as his excuse for making the conclusions it suggests the principal subject of the Lectures now published, except the last three.
The obligations of the Author to various Gentlemen for instruction derived from their published writings or private communications are acknowledged in the body of the work, but he has to express his especial thanks to the Bishop of Limerick, and to Professor Thaddeus O’Mahony, for facilities of access to the still unpublished translations of Brehon manuscripts, as well as for many valuable suggestions.
The Lectures (with the omission of portions) have all been delivered at Oxford.
27 Cornwall Gardens, London, S.W.
Preface to the Fourth Edition.
Since the first edition of this work was published, the materials for opinion on the extremely obscure subject of the ancient Irish Family and its divisions (discussed at pp. 208 et seq.) have been increased by the publication of an additional volume (the fourth) of Brehon Law Tracts, translated into English. The late lamented editor, Dr. Alexander George Richey, has printed in this new volume a very valuable preface, in which the whole of the evidence bearing on the difficult questions at issue is considered. It may be consulted with much advantage.
H. S. M.
October 5, 1885.
Lecture 1. – New Materials for the Early History of Institutions.
The sources of information concerning the early history of institutions which have been opened to us during the last few years are numerous and valuable. On one subject in particular, which may be confidently said to have been almost exclusively investigated till lately by writers who had followed a false path, the additions to our knowledge are of special interest and importance. We at length know something concerning the beginnings of the great institution of Property in Land. The collective ownership of the soil by groups of men either in fact united by blood-relationship, or believing or assuming that they are so united, is now entitled to take rank as an ascertained primitive phenomenon, once universally characterising those communities of mankind between whose civilisation and our own there is any distinct connection or analogy. The evidence has been found on all sides of us, dimly seen and verifiable with difficulty in countries which have undergone the enormous pressure of the Roman Empire, or which have been strongly affected by its indirect influence, but perfectly plain and unmistakeable in the parts of the world, peopled by the Aryan race, where the Empire has made itself felt very slightly or not at all. As regards the Sclavonic communities, the enfranchisement of the peasantry of the Russian dominions in Europe has given a stimulus to enquiries which formerly had attractions for only a few curious observers, and the amount of information collected has been very large. We now know much more clearly than we did before that the soil of the older provinces of the Russian Empire has been, from time immemorial, almost exclusively distributed among groups of self-styled kinsmen, collected in cultivating village-communities, self-organised and self-governing; and, since the great measure of the present reign, the collective rights of these communities, and the rights and duties of their members in respect of one another, are no longer entangled with and limited by the manorial privileges of an owner-in-chief. There is also fresh evidence that the more backward of the outlying Sclavonic societies are constituted upon essentially the same model; and it is one of the facts with which the Western world will some day assuredly have to reckon, that the political ideas of so large a portion of the human race, and its ideas of property also, are inextricably bound up with the notions of family interdependency, of collective ownership, and of natural subjection to patriarchal power. The traces of the ancient social order in the Germanic and Scandinavian countries are, I need scarcely say, considerably fainter, and tend always to become more obscured; but the re-examination of the written evidence respecting ancient Teutonic life and custom proceeds without intermission, and incidentally much light has been thrown on the early history of property by the remarkable work of Sohm (‘Fränkische Reichs-und Gerichtsverfassung’). The results obtained by the special method of G. L. Von Maurer have meantime been verified by comparison with phenomena discovered in the most unexpected quarters. The researches of M. de Laveleye, in particular, have been conducted over a field of very wide extent; and, although I dissent from some of the economic conclusions to which he has been led, I cannot speak too highly of the value of the materials collected by him, and described in the recently published volume which he has entitled ‘La Propriété et ses Formes Primitives.’ I have not observed that the vestiges left on the soil and law of England and of the Scottish Lowlands by the ancient Village-Community have been made the subject of any published work since the monograph of Nasse on the ‘Land Community of the Middle Ages’ was given to the world, and since the lectures delivered in this place three years since appeared in print. Nobody, however, who knows the carefulness with which an English Court of Justice sifts the materials brought before it will wonder at my attaching a special importance to the judgment of Lord Chancellor Hatherley, given in a difficult case which arose through a dispute between different classes of persons interested in a manor, Warrick against Queen’s College, Oxford (reported in 6 Law Reports, Chancery Appeals, 716). It appears to me to recognise the traces of a state of things older than the theoretical basis of English Real Property Law, and, so far as it goes, to allow that the description of it given here was correct. Meanwhile, if I may judge from the communications which do not cease to reach me from India, and from various parts of this country, the constitution of the Village-Community, as it exists, and as it existed, is engaging the attention of a large number of industrious observers, and the facts bearing upon the subject, which I hope will some day be made public, prove to exist in extraordinary abundance.
There was no set of communities which until recently supplied us with information less in amount and apparent value concerning the early history of law than those of Celtic origin. This was the more remarkable, because one particular group of small Celtic societies, which have engrossed more than their share of the interest of this country—the clans of the Scottish Highlands—had admittedly retained many of the characteristics, and in particular the political characteristics, of a more ancient condition of the world, almost down to our own day. But the explanation is, that all Celtic societies were until recently seen by those competent to observe them through a peculiarly deceptive medium. A veil spread by the lawyers, a veil woven of Roman law and of that comparatively modern combination of primitive and Roman law which we call feudalism, hung between the Highland institutions and the shrewd investigating genius of the Scottish Lowlanders. A thick mist of feudal law hid the ancient constitution of Irish society from English observation, and led to unfounded doubts respecting the authenticity of the laws of Wales. The ancient organisation of the Celts of Gaul, described by Cæsar with the greatest clearness and decisiveness, appeared to have entirely disappeared from France, partly because French society was exclusively examined for many centuries by lawyers trained either in Roman or in highly feudalised law, but partly also because the institutions of the Gallic Celts had really passed under the crushing machinery of Roman legislation. I do not, indeed, mean to say that this darkness has not recently given signs of lifting. It has been recognised that the collections of Welsh laws published by the Record Commission, though their origin and date are uncertain, are undoubtedly bodies of genuine legal rules; and, independently of the publications to which I am about to direct attention, the group of Irish scholars, distinguished by remarkable sobriety of thought, which has succeeded a school almost infamous for the unchastened license of its speculations on history and philology, had pointed out many things in Irish custom which connected it with the archaic practices known to be still followed or to have been followed by the Germanic races. As early as 1837 Mr. W. F. Skene, in a work of much value called ‘The Highlanders of Scotland,’ had corrected many of the mistakes on the subject of Highland usage into which writers exclusively conversant with feudal rules had been betrayed; and the same eminent antiquary, in an appendix to his edition of the Scottish chronicler, Fordun, published in 1872, confirms evidence which had reached me in considerable quantities from private sources to the effect that village-communities with ‘shifting severalties’ existed in the Highlands within living memory. Quite recently, also, M. Le Play, Mr. Cliffe Leslie, and others have come upon plain traces of such communities in several parts of France. A close re-examination of the Custumals or manuals of feudal rules plentiful in French legal literature, led farther to some highly interesting results. It clearly appeared from them that communities of villeins were constantly found on the estates of the French territorial nobility. The legal writers have always represented these as voluntary associations, which were rather favoured by the lord on account of the greater certainty and regularity with which their members rendered him suit and service. As a rule, when a tenant holding by base tenure died, the lord succeeded in the first instance to his land, a rule of which there are plain traces in our English law of copyhold. But it is expressly stated that, in the case of an association of villeins, the lord did not resume their land, being supposed to be compensated by their better ability to furnish his dues. Now that the explanation has once been given, there can be no doubt that these associations were not really voluntary partnerships, but groups of kinsmen; not, however, so often organised on the ordinary type of the Village-Community as on that of the House-Community, which has recently been examined in Dalmatia and Croatia. Each of them was what the Hindoos call a Joint Undivided Family, a collection of assumed descendants from a common ancestor, preserving a common hearth and common meals during several generations. There was no escheat of the land to the lord on a death, because such a corporation never dies, and the succession is perpetual.
But much the most instructive contribution to our knowledge of the ancient Celtic societies has been furnished by the Irish Government, in the translations of the Ancient Laws of Ireland, which have been published at its expense. The first volume of these translations was published in 1865; the second in 1869; the third, enriched with some valuable prefaces, has only just appeared. No one interested in the studies which are now occupying us could fail to recognise the importance of the earlier volumes, but there was much difficulty in determining their exact bearing on the early history of Celtic institutions. The bulk of the law first published consisted in a collection of rules belonging to what in our modern legal language we should call the Law of Distress. Now, in very ancient bodies of rules the Law of Distress, as I shall endeavour to explain hereafter, is undoubtedly entitled to a very different place from that which would be given to it in any modern system of jurisprudence; but still it is a highly special branch of law in any stage of development. There is, however, another more permanent and more serious cause of embarrassment in drawing conclusions from these laws. Until comparatively lately they were practically unintelligible; and they were restored to knowledge by the original translators, Dr. O’Donovan and Dr. O’Curry, two very remarkable men, both of whom are now dead. The translations have been carefully revised by the learned editor of the Irish text; but it is probable that several generations of Celtic scholars will have had to interchange criticisms on the language of the laws before the reader who approaches them without any pretension to Celtic scholarship can be quite sure that he has the exact meaning of every passage before him. The laws, too, I need scarcely say, are full of technical expressions; and the greatest scholar who has not had a legal training—and, indeed, up to a certain point when he has had a legal training—may fail to catch the exact excess or defect of meaning which distinguishes a word in popular use from the same word employed technically. Such considerations suggest the greatest possible caution in dealing with this body of rules. In what follows I attempt to draw inferences only when the meaning and drift of the text seem reasonably certain, and I have avoided some promising lines of enquiry which would lead us through passages of doubtful signification.
The value which the Ancient Laws of Ireland, the so-called Brehon laws, will possess when they are completely published and interpreted, may, I think, be illustrated in this way. Let it be remembered that the Roman Law, which, next to the Christian Religion, is the most plentiful source of the rules governing actual conduct throughout Western Europe, is descended from a small body of Aryan customs reduced to writing in the fifth century before Christ, and known as the Twelve Tables of Rome. Let it farther be recollected that this law was at first, expanded and developed, not at all, or very slightly, by legislation, but by a process which we may perceive still in operation in various communities—the juridical interpretation of authoritative texts by successive generations of learned men. Now, the largest collection of Irish legal rules, which has come down to us, professes to be an ancient Code, with an appendage of later glosses and commentaries; and, if its authenticity could be fully established, this ancient Irish Code would correspond historically to the Twelve Tables of Rome, and to many similar bodies of written rules which appear in the early history of Aryan societies. There is reason, however, to think that its claims to antiquity cannot be sustained to their full extent, and that the Code itself is an accretion of rules which have clustered round an older nucleus. But that some such kernel or perhaps several such kernels of written law existed, is highly probable, and it is also probable that the whole of the Brehon law consists of them and of accumulations formed upon them. It is farther probable that the process by which these accumulations were formed was, as in the infancy of the Roman State, juridical interpretation. According to the opinion which I follow, the interesting fact about the ancient Irish law is, that this process was exclusive, and that none of the later agencies by which law is transformed came into play. The Brehon laws are in no sense a legislative construction, and thus they are not only an authentic monument of a very ancient group of Aryan institutions; they are also a collection of rules which have been gradually developed in a way highly favourable to the preservation of archaic peculiarities. Two causes have done most to obscure the oldest institutions of the portion of the human race to which we belong: one has been the formation throughout the West of strong centralised governments, concentrating in themselves the public force of the community, and enabled to give to that force upon occasion the special form of legislative power; the other has been the influence, direct and indirect, of the Roman Empire, drawing with it an activity in legislation unknown to the parts of the world which were never subjected to it. Now, Ireland is allowed on all hands to have never formed part of the Empire; it was very slightly affected from a distance by the Imperial law; and, even if it be admitted that, during certain intervals of its ancient history, it had a central government, assuredly this government was never a strong one. Under these circumstances it is not wonderful that the Brehon law, growing together without legislation upon an original body of Aryan custom, and formed beyond the limit of that cloud of Roman juridical ideas which for many centuries overspread the whole Continent, and even at its extremity extended to England, should present some very strong analogies to another set of derivative Aryan usages, the Hindoo law, which was similarly developed. The curious and perplexing problems which such a mode of growth suggests have to be grappled with by the student of either system.
The ancient laws of Ireland have come down to us as an assemblage of law-tracts, each treating of some one subject or of a group of subjects. The volumes officially translated and published contain the two largest of these tracts, the Senchus Mor, or Great Book of the Ancient Law, and the Book of Aicill. While the comparison of the Senchus Mor and of the Book of Aicill with other extant bodies of archaic rules leaves no doubt of the great antiquity of much of their contents, the actual period at which they assumed their present shape is extremely uncertain. Mr. Whitley Stokes, one of the most eminent of living Celtic scholars, believes, upon consideration of its verbal forms, that the Senchus Mor was compiled in or perhaps slightly before the eleventh century; and there appears to be internal evidence which on the whole allows us to attribute the Book of Aicill to the century preceding. The Senchus Mor, it is true, expressly claims for itself a far earlier origin. In a remarkable preface, of which I shall have much to say hereafter, it gives an account, partly in verse, of the circumstances under which it was drawn up, and it professes to have been compiled during the life and under the personal influence of St. Patrick. These pretensions have been ingeniously supported, but there is not much temerity, I think, in refusing to accept the fifth century as the date of the Senchus Mor. At the same time it is far from impossible that the writing of the ancient Irish laws began soon after the Christianisation of Ireland. It was Christianity, a ‘religion of a book,’ which for the first time introduced many of the ruder nations outside the Empire to the art of writing. We cannot safely claim for the Celts of Ireland, in the fifth century of the Christian era, precisely the same degree of culture which Cæsar attributes to the Celts of the Continent in the first century before Christ; but, even if we could do so, Cæsar expressly states of the Gauls that, though they were acquainted with writing, they had superstitious scruples about using written characters to preserve any part of their sacred literature, in which their law would then be included. Such objections would, however, necessarily disappear with the conversion of the Irish people to Christianity. On the whole there is no antecedent improbability in the tradition that, soon after this conversion, the usages of the Irish began to be stated in writing, and Celtic scholars have detected not a little evidence that parts of these more venerable writings are imbedded in the text of the Book of Aicill and of the Senchus Mor.
It is extremely likely that the most ancient law was preserved in rude verse or rhythmical prose. In the oldest Irish traditions the lawyer is distinguished with difficulty from the poet, poetry from literature. Both in the Senchus Mor and in the Book of Aicill the express statement of the law is described as ‘casting a thread of poetry’ about it, and the traditional authors of the Senchus Mor are said to have exhibited ‘all the judgment and poetry of the men of Erin.’ Modern Irish scholarship has, in fact, discovered that portions of the Senchus Mor are really in verse. The phenomenon is not unfamiliar. Mr. Grote, speaking of the Elegiacs of Solon, and of the natural priority of verse to prose, says (History of Greece, iii. 119), ‘the acquisitions as well as the effusions of an intellectual man, even in the simplest form, (then) adjusted themselves not to the limitations of the period and semicolon, but to those of the hexameter and pentameter.’ There is no question, I conceive, that this ancient written verse is what is now called a survival, descending to the first ages of written composition from the ages when measured rhythm was absolutely essential, in order that the memory might bear the vast burdens placed upon it It is now generally agreed that the voluminous versified Sanscrit literature, which embraces not only the poetry of the Hindoos, but most of their religion, much of what stands to them in place of history, and something even of their law, was originally preserved by recollection and published by recitation; and even now, in the Sanscrit schools which remain, the pupil is trained to exercises of memory which are little short of miraculous to an Englishman.
The tracts are of very unequal size, and the subjects they embrace are of very unequal importance. But all alike consist of an original text, divided into paragraphs. Above or over against the principal words of the text glosses or interpretations are written in a smaller hand, and a paragraph is constantly followed by an explanatory commentary, also in a smaller hand, written in the space which separates the paragraph from the next. The scarcity of material for writing may perhaps sufficiently account for the form taken by the manuscripts; but the Celts seem to have had a special habit of glossing, and you may have heard that the glosses written by early Irish monks between the lines or on the margin of manuscripts belonging to religious houses on the Continent had much to do with the wonderful discoveries of Zeuss in Celtic philology. A facsimile of part of two Brehon manuscripts, one in the British Museum, and the other in the Library of Trinity College, Dublin, may be seen at the beginning of the second published volume of the translations. It seems probable that each tract was the property, and that it sets forth the special legal doctrines, of some body of persons who, in modern legal phrase, had perpetual succession, a Family or Law School; there is ample evidence of the existence of such law schools in ancient Ireland, and they are another feature of resemblance to the India of the past and in some degree to the India of the present.
The text of each of the published tracts appears to have been put together by one effort, no doubt from pre-existing materials, and it may have been written continuously by some one person; but the additions to it must be an accumulation of explanations and expositions of various dates by subsequent possessors of the document. I quite agree with the observation of the Editors, that, while the text is for the most part comparatively consistent and clear, the commentary is often obscure and contradictory. Precisely the same remark is frequently made by Anglo-Indian Judges on the Brahminical legal treatises, some of which are similarly divided into a text and a commentary. As regards the ancient Irish law, the result of the whole process is anything but satisfactory to the modern reader. I do not know that, in any extant body of legal rules, the difficulty of mastering the contents has ever been so seriously aggravated by the repulsiveness of the form. One of the editors has unkindly, but not unjustly, compared a Brehon tract to the worst kind of English law-book, without even the moderate advantage of an alphabetical arrangement.
The exact date at which the existing manuscripts were written cannot be satisfactorily settled until they are all made accessible, which unfortunately they are not at present. But we know one MS. of the Senchus Mor to be at least as old as the fourteenth century, since a touching note has been written on it by a member of the family to which it belonged: ‘One thousand three hundred two and forty years from the birth of Christ till this night; and this is the second year since the coming of the plague into Ireland. I have written this in the 20th year of my age. I am Hugh, son of Conor McEgan, and whoever reads it let him offer a prayer of mercy for my soul. This is Christmas night, and on this night I place myself under the protection of the King of Heaven and Earth, beseeching that he will bring me and my friends safe through the plague. Hugh wrote this in his own father’s book in the year of the great plague.’
The system of legal rules contained in these law-tracts is undoubtedly the same with that repeatedly condemned by Anglo-Irish legislation, and repeatedly noticed by English observers of Ireland down to the early part of the seventeenth century It is the same law which, in 1367, a statute of Kilkenny denounces as ‘wicked and damnable.’ It is the same law which Edmund Spenser, in his ‘View of the State of Ireland,’ describes as ‘a rule of right unwritten, but delivered by tradition from one to another, in which oftentimes there appeareth a great show of equity, in determining the right between party and party, but in many things repugning quite both to God’s law and man’s.’ It is the same ‘lewd’ and ‘unreasonable’ custom which Sir John Davis contrasts with the ‘just and honourable law of England,’ and to which he attributes such desolation and barbarism in Ireland, ‘as the like was never seen in any country that professed the name of Christ.’ It is not our business in this department of study to enquire now far this violent antipathy was politically justifiable. Even if the worst that has been said by Englishmen of the Brehon law down to our own day were true, we might console ourselves by turning our eyes to spheres of enquiry fuller of immediate promise to the world than ours, and observing how much of the wealth of modern thought has been obtained from the dross which earlier generations had rejected. Meanwhile, happily, it is a distinct property of the Comparative Method of investigation to abate national prejudices. I myself believe that the government of India by the English has been rendered appreciably easier by the discoveries which have brought home to the educated of both races the common Aryan parentage of Englishman and Hindoo. Similarly, I am not afraid to anticipate that there will some day be more hesitation in repeating the invectives of Spenser and Davis, when it is once clearly understood that the ‘lewd’ institutions of the Irish were virtually the same institutions as those out of which the ‘just and honourable law’ of England grew. Why these institutions followed in their development such different paths it is the province of History to decide; but, when it gives an impartial decision, I doubt much its wholly attributing the difference to native faults of Irish character. We, who are able here to examine coolly the ancient Irish law in an authentic form, can see that it is a very remarkable body of archaic law, unusually pure from its origin. It has some analogies with the Roman law of the earliest times, some with Scandinavian law, some with the law of the Sclavonic races, so far as it is known, some (and these particularly strong) with the Hindoo law, and quite enough with old Germanic law of all kinds, to render valueless, for scientific purposes, the comparison which the English observers so constantly institute with the laws of England. It is manifestly the same system in origin and principle with that which has descended to us as the Laws of Wales, but these last have somehow undergone the important modifications which arise from the establishment of a comparatively strong central authority. Nor does the Brehon law altogether disappoint the expectations of the patriotic Irishmen who, partly trusting to the testimony of Edmund Spenser, the least unkind of the English critics of Ireland, though one of the most ruthless in his practical suggestions, looked forward to its manifesting, when it was published, an equity and reasonableness which would put to shame the barbarous jurisprudence of England. Much of it—I am afraid I must say, most of it—is worthless save for historical purposes, but on some points it really does come close to the most advanced legal doctrines of our day. The explanation—which I will hereafter give at length—I believe to lie in the method of its development, which has not been through the decisions of courts, but by the opinions of lawyers on hypothetical states of fact.
I think I may lay down that, wherever we have any knowledge of a body of Aryan custom, either anterior to or but slightly affected by the Roman Empire, it will be found to exhibit some strong points of resemblance to the institutions which are the basis of the Brehon law. The depth to which the Empire has stamped itself on the political arrangements of the modern world has been illustrated of late years with much learning; but I repeat my assertion that the great difference between the Roman Empire and all other sovereignties of the ancient world lay in the activity of its legislation, through the Edicts of the Prætor and the Constitutions of the Emperors. For many races, it actually repealed their customs and replaced them by new ones. For others, the results of its legislation mixed themselves indistinguishably with their law. With others, it introduced or immensely stimulated the habit of legislation; and this is one of the ways in which it has influenced the stubborn body of Germanic custom prevailing in Great Britain. But wherever the institutions of any Aryan race have been untouched by it, or slightly touched by it, the common basis of Aryan usage is perfectly discernible; and thus it is that these Brehon law-tracts enable us to connect the races at the eastern and western extremities of a later Aryan world, the Hindoos and the Irish.
The Lectures which follow will help, I trust, to show what use the student of comparative jurisprudence may make of this novel addition to our knowledge of ancient law. Meantime, there is some interest in contrasting the view of its nature, origin, and growth, which we are obliged to take here, with that to which the ancient Irish practitioners occasionally strove hard to give currency. The Senchus Mor, the Great Book of the Ancient Law, was doubtless a most precious possession of the law-school or family to which it belonged; and its owners have joined it to a preface in which a semi-divine authorship is boldly claimed for it. Odhran, the charioteer of St. Patrick—so says this preface—had been killed, and the question arose whether Nuada, the slayer, should die, or whether the saint was bound by his own principles to unconditional forgiveness. St. Patrick did not decide the point himself; the narrator, in true professional spirit, tells us that he set the precedent according to which a stranger from beyond the sea always selects a legal adviser. He chose ‘to go according to the judgment of the royal poet of the men of Erin, Dubhthach Mac ua Lugair,’ and he ‘blessed the mouth’ of Dubhthach. A poem, doubtless of much antiquity and celebrity, is then put into the mouth of the arbitrator, and by the judgment embodied in it Nuada is to die: but he ascends straight to heaven through the intercession of St. Patrick. ‘Then King Laeghaire said, “It is necessary for you, O men of Erin, that every other law should be settled and arranged by us as well as this.” “It is better to do so,” said Patrick. It was then that all the professors of the sciences in Erin were assembled, and each of them exhibited his art before Patrick, in the presence of every chief in Erin. It was then Dubhthach was ordered to exhibit all the judgments and all the poetry of Erin, and every law which prevailed among the men of Erin. . . . This is the Cain Patraic, and no human Brehon of the Gaedhil is able to abrogate anything that is found in the Senchus Mor.’
The inspired award of Dubhthach that Nuada must die suggests to the commentator the following remark: “What is understood from the above decision which God revealed to Dubhthach is, that it was a middle course between forgiveness and retaliation; for retaliation prevailed in Erin before Patrick, and Patrick brought forgiveness with him; that is, Nuada was put to death for his crime, and Patrick obtained heaven for him. At this day we keep between forgiveness and retaliation; for as at present no one has the power of bestowing heaven, as Patrick had at that day, so no one is put to death for his intentional crimes, so long as ‘eric’ fine is obtained; and whenever ‘eric’ fine is not obtained, he is put to death for his intentional crimes, and placed on the sea for his unintentional crimes.” It is impossible, of course, to accept the statement that this wide-spread ancient institution, the pecuniary fine levied on tribes or families for the wrongs done by their members, had its origin in Christian influences; but that it succeeded simple retaliation is in the highest degree probable, and no doubt in its day it was at least as great an advantage to the communities among whom it prevailed as was that stern royal administration of criminal justice to which the Englishmen of the sixteenth century were accustomed, and on which they so singularly prided themselves. But by the sixteenth century it may well have outlived its usefulness, and so may have partially justified the invectives of its English censors, who generally have the ‘eric’ fine for homicide in view when they denounce the Brehon law as ‘contrary to God’s law and man’s.’
Lecture 2. – The Ancient Irish Law.
The great peculiarity of the ancient laws of Ireland, so far as they are accessible to us, is discussed, with much instructive illustration, in the General Preface to the Third Volume of the official translations. They are not a legislative structure, but the creation of a class of professional lawyers, the Brehons, whose occupation became hereditary, and who on that ground have been designated, though not with strict accuracy, a caste. This view, which is consistent with all that early English authorities on Ireland have told us of the system they call the Brehon law, is certainly that which would be suggested by simple inspection of the law-tracts at present translated and published. The Book of Aicill is probably the oldest, and its text is avowedly composed of the dicta of two famous lawyers, Cormac and Cennfaeladh. The Senchus Mor does, indeed, profess to have been produced by a process resembling legislation, but the pretension cannot be supported; and, even if it could, the Senchus Mor would not less consist of the opinions of famous Brehons. It describes the legal rules embodied in its text as formed of the ‘law of nature,’ and of the ‘law of the letter.’ The ‘law of the letter’ is the Scriptural law, extended by so much of Canon law as the primitive monastic Church of Ireland can be supposed to have created or adopted. The reference in the misleading phrase ‘law of nature,’ is not to the memorable combination of words familiar to the Roman lawyers, but to the text of St. Paul in the Epistle to the Romans: ‘For when the Gentiles, which have not the law, do by nature the things contained in the law, these, having not the law, are a law unto themselves.’ (Rom. ii. 14.) The ‘law of nature’ is, therefore, the ancient pre-Christian ingredient in the system, and the ‘Senchus Mor’ says of it: ‘The judgments of true nature while the Holy Ghost had spoken through the mouths of the Brehons and just poets of the men of Erin, from the first occupation of Ireland down to the reception of the faith, were all exhibited by Dubhthach to Patrick. What did not clash with the Word of God in the written law and the New Testament and the consciences of believers, was confirmed in the laws of the Brehons by Patrick and by the ecclesiastics and chieftains of Ireland; for the law of nature had been quite right except the faith, and its obligations, and the harmony of the Church and people. And this is the “Senchus Mor.”
Dr. Sullivan, on the other hand, whose learned and exhaustive Introduction to O’Curry’s Lectures forms the first volume of the ‘Manners and Customs of the Ancient Irish,’ affirms, on the evidence of ancient records, that the institutions which in some communities undoubtedly developed into true legislatures had their counterparts in the Ireland to which the laws belonged, and he does not hesitate to designate certain portions of the Irish legal system ‘statute-law.’ In the present state of criticism on Irish documents it is not possible to hold the balance exactly between the writers of the Introduction and of the General Preface; but there is not the inconsistency between their opinions which there might appear to be at first sight. In the infancy of society many conceptions are found blended together which are now distinct, and many associations which are now inseparable from particular processes or institutions are not found coupled with them. There is abundant proof that legislative and judicial power are not distinguished in primitive thought; nor, again, is legislation associated with innovation. In our day the legislator is always supposed to innovate; the judge never. But of old the legislator no more necessarily innovated than the judge; he only, for the most part, declared pre-existing law or custom. It is impossible to determine how much new law there was in the Laws of Solon, or in the Twelve Tables of Rome, or in the Laws of Alfred and Canute, or in the Salic Law which is the oldest of the so-called Leges Barbarorum, but in all probability the quantity was extremely small. Thus, when a body of Brehon judgments was promulgated by an Irish Chief to a tribal assembly, it is probable that convenience was the object sought rather than a new sanction. A remarkable poem, appended to O’Curry’s Lectures, tells us how certain Chiefs proceeded every third year to the ‘Fair of Carman’ and there proclaimed ‘the rights of every law and the restraints;’ but it does not at all follow that this promulgation had any affinity for legislation in the modern sense. The innovating legislatures of the modern world appear to have grown up where certain conditions were present which were virtually unknown to ancient Ireland—where the primitive groups of which society was formed were broken up with some completeness, and where a central government was constituted acting on individuals from a distance coercively and irresistibly.
There are, moreover, some independent reasons for thinking that, among the Celtic races, the half-judicial, half-legislative, power originally possessed by the tribal Chief, or by the tribal Assembly, or by both in combination, passed very early to a special class of learned persons. The Prefaces in Irish found at the commencement of some of the law-tracts, which are of much interest, but of uncertain origin and date, contain several references to the order in Celtic society which has hitherto occupied men’s thoughts more than any other, the Druids. The word occurs in the Irish text. The writers of the prefaces seem to have conceived the Druids as a class of heathen priests who had once practised magical arts. The enchanters of Pharaoh are, for instance, called the Egyptian Druids, in the Preface to the Senchus Mor. The point of view seems to be the one familiar enough to us in modern literature, where an exclusive prominence is given to the priestly character of the Druids; nor do the Brehon lawyers appear to connect themselves with a class of men whom they regard as having belonged altogether to the old order of the world. I am quite aware that, in asking whether the historical disconnection of the Brehons and the Druids can be accepted as a fact, I suggest an enquiry about which there hangs a certain air of absurdity. There has been so much wild speculation and assertion about Druids and Druidical antiquities that the whole subject seems to be considered as almost beyond the pale of serious discussion. Yet we are not at liberty to forget that the first great observer of Celtic manners describes the Celts of the Continent as before all things remarkable for the literary class which their society included. Let me add that in Cæsar’s account of the Druids there is not a word which does not appear to me perfectly credible. The same remark may be made of Strabo. But the source of at all events a part of the absurdities which have clustered round the subject I take to be the Natural History of Pliny, and they seem to belong to those stories about plants and animals to which may be traced a great deal of the nonsense written in the world.
You may remember the picture given by Cæsar of the Continental Celts, as they appeared to him when he first used his unrivalled opportunities of examining them. He tells us that their tribal societies consisted substantially of three orders, two privileged and one unprivileged, and these orders he calls the Equites, the Druids, and the Plebeians. Somebody has said that this would be a not very inaccurate description of French society just before the first Revolution, with its three orders of Nobles, Clergy, and unprivileged Tiers-État; but the observation is a good deal more ingenious than true. We are now able to compare Cæsar’s account of the Gauls with the evidence concerning a Celtic community which the Brehon tracts supply; and if we use this evidence as a test, we shall soon make up our minds that, though his representation is accurate as far as it goes, it errs in omission of detail. The Equites, or Chiefs, though to some extent they were a class apart, did not stand in such close relation to one another as they stood to the various septs or groups over which they presided. ‘Every chief,’ says the Brehon law, ‘rules over his land, whether it be small or whether it be large.’ The Plebeians, again, so far from constituting a great miscellaneous multitude, were distributed into every sort of natural group, based ultimately upon the Family. The mistake, so far as there was error, I conceive to have been an effect of mental distance. It had the imperfections of the view obtained by looking on the Gangetic plains from the slopes of the Himalayas. The impression made is not incorrect, but an immensity of detail is lost to the observer, and a surface varied by countless small elevations looks perfectly flat. Cæsar’s failure to note the natural divisions of the Celtic tribesmen, the families and septs or subtribes, is to me particularly instructive. The theory of human equality is of Roman origin; the comminution of human society, and the unchecked competition among its members, which have gone so far in the Western Europe of our days, had their most efficient causes in the mechanism of the Roman State. Hence Cæsar’s omissions seem to be those most natural in a Roman general who was also a great administrator and trained lawyer; and they are undoubtedly those to which an English ruler of India is most liable at this moment. It is often said that it takes two or three years before a Governor-General learns that the vast Indian population is an aggregate of natural groups and not the mixed multitude he left at home; and some rulers of India have been accused of never having mastered the lesson at all.
There are a few very important points of detail to be noticed in Cæsar’s description of what may be called the lay portion of Celtic society. I shall afterwards call your attention to the significance of what he states concerning the classes whom he calls the clients and debtors of the Equites, and respecting the increased power which they give to the Chief on whom they are dependent. It is, however, remarkable that, when he speaks of the Druids, his statements are greatly more detailed. Here there were no home associations to mislead him, but, beyond that, it is plain that his interest was strongly roused by the novel constitution of this privileged order whom he places by the side of the Chiefs. Let me recall, then, to you the principal points of his description, from which I designedly omit all statements concerning the priestly office of the class described. He tells us that the Druids were supreme judges in all public and private disputes; and that, for instance, all questions of homicide, of inheritance, and of boundary were referred to them for decision. He says that the Druids presided over schools of learning, to which the Celtic youth flocked eagerly for instruction, remaining in them sometimes (so he was informed) for twenty years at a time. He states that the pupils in these schools learned an enormous quantity of verses, which were never committed to writing; and he gives his opinion that the object was not merely to prevent sacred knowledge from being popularised, but to strengthen the memory. Besides describing to us the religious doctrine of the Druids, he informs us that they were extremely fond of disputing about the nature of the material world, the movements of the stars, and the dimensions of the earth and of the universe. At their head there was by his account a chief Druid, whose place at his death was filled by election, and the succession occasionally gave rise to violent contests of arms (B. G. vi. 13, 14).
There are some strong and even startling points of correspondence between the functions of the Druids, as described by Cæsar, and the office of the Brehon, as suggested by the law-tracts. The extensive literature of law just disinterred testifies to the authority of the Brehons in all legal matters, and raises a strong presumption that they were universal referees in disputes. Among their writings are separate treatises on inheritance and boundary, and almost every page of the translations contains a reference to the ‘eric’-fine for homicide. The schools of literature and law appear to have been numerous in ancient Ireland, and O’Curry is able to give the course of instruction in one of them extending over twelve years. All literature, including even law, seems to have been identified with poetry. The chief Druid of Cæsar meets us on the very threshold of the Senchus Mor, in the person of Dubhthach Mac ua Lugair, the royal poet of Erin, the Brehon who was chosen by St. Patrick to arbitrate in a question of homicide, and whose ‘mouth’ the saint ‘blessed.’ The mode of choosing the chief Druid, by election, has its counterpart in the institution of Tanistry, which within historical times determined the succession to all high office in Ireland, and which was hateful to the English, as affording smaller security for order than their own less archaic form of primogeniture. Nor is this all. The Prefaces in Irish to the tracts contain a number of discussions on subjects which are in no way legal, or which are forced into some connection with law by the most violent expedients. They leave on the mind the impression of being a patchwork of materials, probably of very various antiquity, which happen to have been found in the archives of particular law-schools. Now, the Preface to the Senchus Mor actually contains disquisitions on all the matters about which Cæsar declares the Druids to have been specially fond of arguing. It in one place sets forth how God made the heaven and the earth, but the account is not the least like the Mosaic account. It goes off, as Cæsar’s Druids did, into a number of extraordinary statements. ‘de sideribus atque eorum motu,’ ‘de mundi ac terrarum magnitudine.’ Among other things, it declares that God fixed seven divisions from the firmament to the earth, and that the distance he measured from the moon to the sun was 244 miles. ‘And the first form of the firmament was ordained thus: as the shell is about the egg, so is the firmament round the earth in fixed suspension . . . . there are six windows in each part through the firmament to shed light through, so that there are sixty-six windows in it, and a glass shutter for each window; so that the whole firmament is a mighty sheet of crystal and a protecting bulwark round the earth, with three heavens, and three heavens about it; and the seventh was arranged in three heavens. This last, however, is not the habitation of the angels, but is like a wheel revolving round, and the firmament is thus revolving, and also the seven planets, since the time when they were created.’ Parts of the passage reflect the astronomical notions known to have been current in the Middle Ages, but much of it reads like a fragment of a heathen cosmology, to which a later revision has given a faint Christian colouring. The same Preface contains also some curious speculations on the etymology of law-terms, and the Preface to the Book of Aicill enters, among other things, into the question of the difference between genus and species.
I suggest, therefore, that the same tendencies which produced among the Celts of the Continent the class called the Druids produced among the Celts of Ireland the class known to us as the Brehons; nor does it seem to me difficult to connect the results of these tendencies with other known phenomena of ancient society. There is much reason to believe that the Tribe-Chief, or King, whom the earliest Aryan records show us standing by the side of the Popular Assembly, was priest and judge as well as captain of the host. The later Aryan history shows us this blended authority distributing or ‘differentiating’ itself, and passing either to the Assembly or to a new class of depositaries. Among the Achæans of Homer, the Chief has ceased to be priest, but he is still judge; and his judicial sentences, θέμιστες, or ‘dooms,’ however much they may be drawn in reality from pre-existing usage, are believed to be dictated to him from on high. Among the Celts both of Gaul and of Ireland he has ceased to be priest, and also probably to be judge, although some measure of judicial authority may still belong to his office as a ‘survival.’ The order of change thus departs from that followed in Athenian history, where the institution of kingship survived only in the name of the King Archon, who was a judicial functionary, and from that followed in Roman history, where the Rex Sacrificulus was a hierophant or priest. The Popular Assembly, meanwhile, which virtually attracted to itself the whole civil and criminal jurisdiction of the Kings among the Athenians, and which at Rome engrossed the whole administration of criminal justice through the commissions it appointed, seems to lose all judicial authority among the Celts. Perhaps I may be permitted thus to describe the change I conceive to have taken place among the Celts of Ireland. Themis, who in Homer is the assessor of Zeus and the source of judicial inspiration to kings, has (so to speak) set up for herself. Kings have delegated their authority to a merely human assessor, and we see by the story which begins the Senchus Mor that, even when a Saint is supposed to be present, the inspiration of which he is the source does not find expression through his lips, nor does it descend on the King; it descends on the professional judge. When we obtain our last glimpse of the class which has received this inheritance from Chief or King—the Brehons, Judges, or Authors of Judgments—they have sunk to the lowest depth of misery and degradation through the English conquest. At an earlier date they are seen divided into families or septs, the hereditary law-advisers of some princely or powerful house. Hugh McEgan, who wrote the note ‘in his own father’s book,’ which I read in the last Lecture, was one of the hereditary Brehons attached to the McCarthys. But, in the earliest Irish traditions, the functions of the Brehon and the King run very much into one another. The most ancient Brehons are described as of royal blood, sometimes as king’s sons. The Tanaists of the great Irish Chiefs, the successors elected out of the kindred of each Chief to come after him on his death, are said to have occasionally officiated as judges; and one of the law-tracts, still unpublished, contains the express rule that it is lawful for a king, though himself a judge, to have a judge in his place. Cormac MacAirt, one of the traditional authors of the Book of Aicill, was a King in retirement. Apocryphal as his story may be, it is one of much significance to the student of ancient institutions. He had been accidentally blinded of one eye, and is said to have been deposed from his regal office or chieftaincy on account of the blemish. Coirpri, his son and successor (says the Book of Aicill), ‘in every difficult case of judgment that came to him used to go and ask his father about it, and his father used to say to him, “My son, that thou mayest know” ’—and then proceeded to lay down the law.
If, without committing ourselves to any specific theory concerning the exact extent of the correspondence, we can assume that there was substantial identity between the literary class which produced the law-tracts and the literary order attributed to the Celtic races by Cæsar, we not only do something to establish an historical conclusion perhaps more curious than important, but we remove some serious difficulties in the interpretation of the interesting and instructive body of archaic law now before us. The difference between the Druids and their successors, the Brehons, would in that case be mainly this: the Brehons would be no longer priests. All sacerdotal or religious authority must have passed, on the conversion of the Irish Celts, to the ‘tribes of the saints’—to the missionary monastic societies founded at all points of the island—and to that multitude of bishops dependent on them, whom it is so difficult to reconcile with any of our preconceived ideas as to ancient ecclesiastical organisation. The consequence would be that the religious sanctions of the ancient laws, the supernatural penalties threatened on their violation, would disappear, except so far as the legal rules exactly coincided with the rules of the new Christian code, the ‘law of the letter.’ Now, the want of a sanction is occasionally one of the greatest difficulties in understanding the Brehon law. Suppose a man disobeyed the rule or resisted its application, what would happen? The learned writer of one of the modern prefaces prefixed to the Third Volume of the Ancient Laws contends that the administration of the Brehon system consisted in references to arbitration; and I certainly think myself that, so far as the system is known, it points to that conclusion. The one object of the Brehons was to force disputants to refer their quarrels to a Brehon, or to some person in authority advised by a Brehon, and thus a vast deal of the law tends to run into the Law of Distress, which declares the various methods by which a man can be compelled through seizure of his property to consent to an arbitration. But then one cannot help perpetually feeling that the compulsion is weak as compared with the stringency of the process of modern Courts of Justice; and besides that, why should not the man attempted to be distrained upon constantly resist with success? Doubtless the law provides penalties for resistance; but where is the ultimate sanction? Cæsar supplies an answer, which must, I think, contain a portion of the truth. He says that if a Celt of Gaul refused to abide by a Druid judgment he was excommunicated: which was esteemed the heaviest of penalties. Another example which I can give you of the want or weakness of the sanction in the Brehon law is a very remarkable one, and I shall recur to it hereafter. If you have a legal claim against a man of a certain rank and you are desirous of compelling him to discharge it, the Senchus Mor tells you to ‘fast upon him.’ ‘Notice,’ it says, ‘precedes distress in the case of the inferior grades, except it be by persons of distinction or upon persons of distinction; fasting precedes distress in their case’ (‘Ancient Laws of Ireland,’ vol. i. p. 113). The institution is unquestionably identical with one widely diffused throughout the East, which is called by the Hindoos ‘sitting dharna.’ It consists in sitting at your debtor’s door and starving yourself till he pays. From the English point of view the practice has always been considered barbarous and immoral, and the Indian Penal Code expressly forbids it. It suggests, however, the question—what would follow if the debtor simply allowed the creditor to starve? Undoubtedly the Hindoo supposes that some supernatural penalty would follow; indeed, he generally gives definiteness to it by retaining a Brahmin to starve himself vicariously, and no Hindoo doubts what would come of causing a Brahmin’s death. We cannot but suppose that the Brehon rule of fasting was once thought to have been enforced in some similar way. Cæsar states that the Druids believed in the immortality and transmigration of the soul, and considered it the key of their system. A Druid may thus very well have taught that penal consequences in another world would follow the creditor’s death by starvation; and there is perhaps a pale reflection of this doctrine in the language of the Senchus Mor: ‘He who does not give a pledge to fasting is an evader of all; he who disregards all things shall not be paid by God or man.’ But an Irish Brehon could scarcely make any distinct assertion on the subject, since fasting had now become a specific ordinance of the Christian Church, and its conditions and spiritual effects were expressly defined by the Christian priesthood. Theoretically, I should state, a person who refused unjustly to yield to fasting had his legal liabilities considerably increased, at least, according to the dicta of the Brehon commentators; but such provisions only bring us to the difficulty of which I first spoke, and raise anew the question of the exact value of legal rules at a period when Courts of Justice are not as yet armed with resistless powers of compelling attendance and submission.
If we are justified in tracing the pedigree of the Brehon Code to a system enforced by supernatural sanctions, we are able to contrast it in various ways with other bodies of law in respect of its mode of development. It closely resembles the Hindoo law, inasmuch as it consists of what was in all probability an original basis of Aryan usage vastly enlarged by a superstructure of interpretation which a long succession of professional commentators have erected; but it cannot have had any such sacredness, and consequently any such authority, as the Brahminical jurisprudence. Both the Brahmins and the Brehons assume that Kings and Judges will enforce their law, and emphatically enjoin on them its enforcement; but, while the Brahmin could declare that neglect or disobedience would be followed by endless degradation and torment, the Brehon could only assert that the unlearned brother who pronounced a false judgment would find blotches come on his cheeks, and that the Chief who allowed sound usage to be departed from would bring bad weather on his country. The development of the Brehon law was again parallel to that which there is strong reason for supposing the Roman law to have followed in early times. The writer of the Preface to the Third Volume, from which I have more than once quoted, cites some observations which I published several years ago on the subject of the extension of the Roman jurisprudence by the agency known as the Responsa Prudentum, the accumulated answers (or, as the Brehon phrase is, the judgments) of many successive generations of famous Roman lawyers; and he adopts my account as giving the most probable explanation of the growth of the Brehon law. But in the Roman State a test was always applied to the ‘answers of the learned,’ which was not applied, or not systematically applied, to the judgments of the Brehons. We never know the Romans except as subject to one of the strongest of central governments, which armed the law courts with the force at its command. Although the Roman system did not work exactly in the way to which our English experience has accustomed us, there can, of course, be no doubt that the ultimate criterion of the validity of professional legal opinion at Rome, as elsewhere, was the action of Courts of Justice enforcing rights and duties in conformity with such opinion. But in ancient Ireland it is at least doubtful whether there was ever, in our sense of the words, a central government; it is also doubtful whether the public force at the command of any ruler or rulers was ever systematically exerted through the mechanism of Courts of Justice; and it is at least a tenable view that the institutions which stood in the place of Courts of Justice only exercised jurisdiction through the voluntary submission of intending litigants.
Perhaps, however, from our present point of view, the strongest contrast is between the ancient law of Ireland and the law of England at a period which an English lawyer would not call recent. The administration of justice in England, from comparatively early times, has been more strongly centralised than in any other European country; but in Ireland there was no central government to nerve the arm of the law. The process of the English Courts has for centuries past been practically irresistible; the process of the Irish Courts, even if it was compulsory, was at the utmost extremely weak. The Irish law was developed by hereditary commentators; but we in England have always attributed far less authority than does any European Continental community to the unofficial commentaries of the most learned writers of textbooks. We obtain our law, and adjust it to the needs of each successive generation, either through legislative enactment or through the decisions of our judges on isolated groups of facts established by the most laborious methods. But, as I have already stated, the opinion to which I incline is, that no part of the Brehon law had its origin in legislation. The author of innovation and improvement was the learned Brehon, and the Brehon appears to have invented at pleasure the facts which he used as the framework for his legal doctrine. His invention was necessarily limited by his experience, and hence the cases suggested in the law-tracts possess great interest, as throwing light on the society amid which they were composed; but these cases seem to be purely hypothetical, and only intended to illustrate the rule which happens to be under discussion.
In the volume of my own to which I referred a few moments ago I said of the early Roman law that ‘great influence must have been exercised (over it) by the want of any distinct check on the suggestion or invention of possible questions. When the data can be multiplied at pleasure, the facilities for evolving a general rule are immensely increased. As the law is administered among ourselves (in England) the judge cannot travel out of the sets of facts exhibited before him or before his predecessors. Accordingly, each group of circumstances which is adjudicated upon receives, to employ a Gallicism, a sort of consecration. It acquires certain qualities which distinguish it from every other case, genuine or hypothetical.’ I do not think it can be doubted that this English practice of never declaring a legal rule authoritatively until a state of facts arises to which it can be fitted, is the secret of the apparent backwardness and barrenness of English law at particular epochs, as contrasted with the richness and reasonableness of other systems which it more than rivals in its present condition. It is true, as I said before, even of the Brehon law, that it does not wholly disappoint the patriotic expectations entertained of it. When they are disencumbered of archaic phrase and form, there are some things remarkably modern in it. I quite agree with one of the Editors that, in the ancient Irish Law of Civil Wrong, there is a singularly close approach to modern doctrines on the subject of Contributory Negligence; and I have found it possible to extract from the quaint texts of the Book of Aicill some extremely sensible rulings on the difficult subject of the Measure of Damages, for which it would be vain to study the writings of Lord Coke, though these last are relatively of much later date. But the Brehon law pays heavily for this apparent anticipation of the modern legal spirit. It must be confessed that most of it has a strong air of fancifulness and unreality. It seems as if the Brehon lawyer, after forming (let us say) a conception of a particular kind of injury, set himself, as a sort of mental exercise, to devise all the varieties of circumstance under which the wrong could be committed, and then to determine the way in which some traditional principle of redress could be applied to the cases supposed. This indulgence of his imagination drew him frequently into triviality or silliness, and led to an extraordinary multiplication of legal detail. Four pages of the Book of Aicill (a very large proportion of an ancient body of law) are concerned with injuries received from dogs in dog-fights, and they set forth in the most elaborate way the modification of the governing rule required in the case of the owners—in the case of the spectators—in the case of the ‘impartial interposer’—in the case of the ‘half-interposer,’ i.e. the man who tries to separate the dogs with a bias in favour of one of them—in the case of an accidental looker-on—in the case of a youth under age, and in the case of an idiot. The same law-tract deals also with the curious subjects of injuries from a cat stealing in a kitchen, from women using their distaffs in a woman-battle, and from bees, a distinction being drawn between the case in which the sting draws blood and the case in which it does not. Numberless other instances could be given; but I repeat that all this is mixed up with much that even now has juridical interest, and with much which in that state of society had probably the greatest practical importance.
It is not, perhaps, as often noticed as it should be by English writers on law that the method of enunciating legal principles with which our Courts of Justice have familiarised us is absolutely peculiar to England and to communities under the direct influence of English practice. In all Western societies, Legislation, which is the direct issue of the commands of the sovereign state, tends more and more to become the exclusive source of law; but still in all Continental countries other authorities of various kinds are occasionally referred to, among which are the texts of the Roman Corpus Juris, commentaries on Codes and other bodies of written law, the unofficial writings of famous lawyers, and other branches of the vast literature of law holding at most a secondary place in the estimation of the English Judges and Bar. Nowhere, however, is anything like the same dignity as with us attributed to a decided ‘case,’ and I have found it difficult to make foreign lawyers understand why their English brethren should bow so implicitly to what Frenchmen term the ‘jurisprudence’ of a particular tribunal. From one point of view English law has doubtless suffered through this reluctance to invent or imagine facts as the groundwork of rules, and it will continue to bear the marks of the injury until legislative re-arrangement and re-statement fully disclose the stores of common sense which are at present concealed by its defects of language and form. On the other hand, these habits of the English Courts seem to be closely connected with one of the most honourable characteristics of the English system, its extreme carefulness about facts. Nowhere else in the world is there the same respect for a fact, unless the respect be of English origin. The feeling is not shared by our European contemporaries, and was not shared by our remote ancestors. It has been said—and the remark seems to me a very just one—that in early times questions of fact are regarded as the simplest of all questions. Such tests of truth as Ordeal and Compurgation satisfy men’s minds completely and easily, and the only difficulty recognised is the discovery of the legal tradition and its application to the results of the test. Up to a certain point no doubt our own mechanism for the determination of a fact is also a mere artifice. We take as our criterion of truth the unanimous opinion of twelve men on statements made before them. But then the mode of convincing, or attempting to convince, them is exactly that which would have to be followed if it were sought to obtain a decision upon evidence from the very highest human intelligence. The old procedure was sometimes wholly senseless, sometimes only distantly rational; the modern English procedure is at most imperfect, and some of its imperfection arises from the very constitution of human nature and human society. I quite concur, therefore, in the ordinary professional opinion that its view of facts and its modes of ascertaining them are the great glory of English law. I am afraid, however, that facts must always be the despair of the law reformer. Bentham seems to me from several expressions to have supposed that if the English Law of Evidence were re-constructed on his principles questions of fact would cease to present any serious difficulty. Almost every one of his suggestions has been adopted by the Legislature, and yet enquiries into facts become more protracted and complex than ever. The truth is that the facts of human nature, with which Courts of Justice have chiefly to deal, are far obscurer and more intricately involved than the facts of physical nature; and the difficulty of ascertaining them with precision constantly increases in our age, through the progress of invention and enterprise, through the ever-growing miscellaneousness of all modern communities, and through the ever-quickening play of modern social movements. Possibly we may see English law take the form which Bentham hoped for and laboured for; every successive year brings us in some slight degree nearer to this achievement; and consequently, little as we may agree in his opinion that all questions of law are the effect of some judicial delusion or legal abuse, we may reasonably expect them to become less frequent and easier of solution. But neither facts nor the modes of ascertaining them tend in the least to simplify themselves, and in no conceivable state of society will Courts of Justice enjoy perpetual vacation.
I have been at some pains to explain what sort of authority the Irish Brehon law did not, in my opinion, possess. The ‘law of nature’ had lost all supernatural sanction, except so far as it coincided with the ‘law of the letter.’ It had not yet acquired, or had very imperfectly acquired, that binding power which law obtains when the State exerts the public force through Courts of Justice to compel obedience to it. Had it, then, any authority at all; and if so, what sort of authority? Part of the answer to this question I endeavoured to give three years ago (‘Village Communities, in the East and West,’ pp. 56, 57); and though much more might be said on the subject, I defer it till another opportunity. So far as the Brehon law declared actual ancient and indigenous practices, it shared in the obstinate vitality of all customs when observed by a society distributed into corporate natural groups. But, besides this, it had another source of influence over men’s minds, in the bold and never-flagging self-assertion of the class which expounded it. A portion of the authority enjoyed by the Indian Brahminical jurisprudence is undoubtedly to be explained in the same way. The Brehon could not, like the Brahmin, make any such portentous assertion as that his order sprang from the head of Brahma, that it was an embodiment of perfect purity, and that the first teacher of its lore was a direct emanation from God. But the Brehon did claim that St. Patrick and other great Irish saints had sanctioned the law which he declared, and that some of them had even revised it. Like the Brahmin, too, he never threw away an opportunity of affirming the dignity of his profession. In these law-tracts the heads of this profession are uniformly placed, where Cæsar placed the Druids, on the same level with the highest classes of Celtic society. The fines payable for injury to them, and their rights of feasting at the expense of other classes (a form of right which will demand much attention from us hereafter), are adjusted to those of Bishops and Kings. It is more than likely that the believing multitude ended by accepting these pretensions. From what we know of that stage of thought we can hardly set limits to the amount of authority spontaneously conceded to the utterances of a sole literary class. It must have struck many that the influence of the corresponding class in our own modern society far exceeds anything which could have been asserted of it from the mere consideration of our social mechanism. There is, perhaps, an impression abroad that the influence it exerts increases as history goes on, an impression possibly produced and certainly strengthened by the brilliant passages in which Lord Macaulay contrasted the well-paid literary labour of his own day with the miseries of the literary hack of Grub Street a century before. I think that this opinion, if broadly stated, is at the very least doubtful. The class which, to use a modern neologism, ‘formulates’ the ideas dimly conceived by the multitude—which saves it mental trouble by collecting through generalisation, which is an essentially labour-saving process, the scattered fragments of its knowledge and experience—has not always consisted of philosophers, historians, and novelists, but had earlier representatives in poets, priests, and lawyers. It is not at all a paradoxical opinion that these last were its most powerful members. For, nowadays, it has to cope with the critical faculty, more or less found everywhere, and enormously strengthened by observation of the methods of physical discovery. No authority of our day is possibly comparable with that of the men who, in an utterly uncritical age, simply said of a legal rule, ‘So it has been laid down by the learned,’ or used the still more impressive formula, ‘It is thus written.’
While, however, I fully believe that the Brehon law possessed great authority, I think also that it was in all probability irregularly and intermittently enforced, and that partial and local departures from it were common all over ancient Ireland. Anybody who interested himself in the question of its practical application would have to encounter the very problems which are suggested by the Brahminical Hindoo law. The student of this last system, especially if he compares it with the infinity of local usage practised in India, is constantly asking himself how far was the law of the Brahmin jurists observed before the English undertook to enforce it through their tribunals? The Editor of the Third Volume of the Ancient Laws of Ireland has given a very apposite example of a problem of the same kind (iii. 146), by extracting from the Carew Papers the story of a famous dispute as to the headship of the great Irish house of O’Neill. Con O’Neill, its chief, had two sons, Matthew and Shane. Matthew O’Neill was heir to Con O’Neill’s earldom of Tyrone, according to the limitations of the patent. Shane O’Neill urged on the English Government that these limitations were void, because the King, in granting the earldom, could not have been aware that Matthew O’Neill was an adulterine bastard, having been in truth born of the wife of a smith in Dundalk. Shane O’Neill has been regarded as the champion of purely Irish ideas (see Froude, ‘English in Ireland,’ I. 43); but though the rule of legitimacy upon which he insisted conforms to our notions, it is directly contrary to the legal doctrine of the Book of Aicill, which in one of its most surprising passages lays down formally the procedure by which the natural father could bring into his family a son born under the alleged circumstances of Matthew O’Neill, on paying compensation to the putative parent. Unless Shane O’Neill’s apparent ignorance of this method of legitimation was merely affected for the purpose of blinding the English Government, it would seem to follow that the Book of Aicill, though its authorship was attributed to King Cormac, had not an universally recognised authority.
I do not know that the omission of the English, when they had once thoroughly conquered the country, to enforce the Brehon law through the Courts which they established, has ever been reckoned among the wrongs of Ireland. But if they had done this, they would have effected the very change which at a much later period they brought about in India, ignorantly, but with the very best intentions. They would have given immensely greater force and a much larger sphere to a system of rules loosely and occasionally administered before they armed them with a new authority. Even as it was, I cannot doubt that the English did much to perpetuate the Brehon law in the shape in which we find it. The Anglo-Norman settlement on the east coast of Ireland acted like a running sore, constantly irritating the Celtic regions beyond the Pale, and deepening the confusion which prevailed there. If the country had been left to itself, one of the great Irish tribes would almost certainly have conquered the rest. All the legal ideas which, little conscious as we are of their source, come to us from the existence of a strong central government lending its vigour to the arm of justice would have made their way into the Brehon law; and the gap between the alleged civilisation of England and the alleged barbarism of Ireland during much of their history, which was in reality narrower than is commonly supposed, would have almost wholly disappeared.
Before I close this chapter it is necessary to state that the Brehon law has not been unaffected by the two main influences which have made the modern law of Western Europe different from the ancient, Christian morality and Roman jurisprudence. It has been modified by Roman juridical ideas in some degree, though it would be hazardous to lay down with any attempt at precision in what degree. I have trustworthy information that, in the tracts translated but not yet published, a certain number of Roman legal maxims are cited, and one Roman jurisconsult is mentioned by name. So far as the published tracts afford materials for an opinion, I am inclined to think that the influence of the Roman law has been very slight, and to attribute it not to study of the writings of the Roman lawyers, but to contact with Churchmen imbued more or less with Roman legal notions. We may be quite sure that the Brehons were indebted to them for one conception which is present in the tracts—the conception of a Will; and we may probably credit the Church with the comparatively advanced development of another conception which we find here—the conception of a Contract. The origin of the rules concerning testamentary bequest which are sometimes found in Western bodies of law otherwise archaic has been much considered of late years; and the weight of learned opinion inclines strongly to the view that these rules had universally their source in Roman law, but were diffused by the influence of the Christian clergy. This assertion cannot be quite so confidently made of Contracts; but the sacredness of bequests and the sacredness of promises were of about equal importance to the Church, as the donee of pious gifts; and, as regards the Brehon law, it is plain upon the face of the published sub-tract which is chiefly concerned with Contract, the Corus Bescna, that the material interests of the Church furnished one principal motive for its compilation. The Corus Bescna, in which, I may observe, a certain confusion (not uncommon in ancient law) may be remarked between contracts and grants, between the promise to give and the act or operation of giving, contains some very remarkable propositions on the subject of Contract. Here, and in other parts of the Senchus Mor, the mischiefs of breach of contract are set forth in the strongest language. ‘The world would be in a state of confusion if verbal contracts were not binding.’ ‘There are three periods at which the world dies: the period of a plague, of a general war, of the dissolution of verbal contracts.’ ‘The world is worthless at the time of the dissolution of contracts.’ At first sight this looks a good deal liker the doctrine of the eighteenth century than of any century between the sixth and the sixteenth. Let us see, however, what follows when the position thus broadly stated has to be worked out. We come, in the Corus Bescna, upon the following attempt at classification, which I fear would have deeply shocked Jeremy Bentham and John Austin: ‘How many kinds of contracts are there?’ asks the Brehon textwriter. ‘Two,’ is the answer. ‘A valid contract, and an invalid contract.’ This, no doubt, is absurd, but the explanation appears to be as follows. The principle of the absolute sacredness of contracts was probably of foreign origin, and was insisted upon for a particular purpose. It was therefore laid down too broadly for the actual state of the law and the actual condition of Irish Celtic society. Under such circumstances a treatise on Contract takes necessarily the form in great measure of a treatise on the grounds of invalidity in contracts, on the manifold exceptions to an over-broad general rule. Anciently, the power of contracting is limited on all sides. It is limited by the rights of your family, by the rights of your distant kinsmen, by the rights of your co-villagers, by the rights of your tribe, by the rights of your Chief, and, if you contract adversely to the Church, by the rights of the Church. The Corus Bescna is in great part a treatise on these archaic limitations. At the same time some of the modern grounds of invalidity are very well set forth, and the merit may possibly be due to the penetration of Roman doctrine into the Brehon law-schools.
Something must be said on the extent to which Christian opinion has leavened these Brehon writings. Christianity has certainly had considerable negative influence over them. It became no longer possible for the Brehon to assert that the transgressor of his rules would incur a supernatural penalty, and the consequences of this were no doubt important. But still, as you have seen, in the case of ‘fasting on a man,’ or ‘sitting dharna,’ the heathen rule remained in the system, though its significance was lost. Again, one positive result of the reception by the Brehons of the so-called ‘law of the letter’ appears to have been the development of a great mass of rules relating to the territorial rights of the Church, and these constitute a very interesting department of the Brehon law. But there has certainly been nothing like an intimate inter-penetration of ancient Irish law by Christian principle. If this kind of influence is to be looked for anywhere, it must be in the law of Marriage, and the cognate branches of Divorce, Legitimacy, and Inheritance. These, however, are the very portions of the Brehon law which have been dwelt upon by writers convinced that, as regards the relations of the sexes, the primitive Irish were near akin to those Celts of Britain of whose practices Cæsar had heard. (B. G., v. 14.) The ‘Book of Aicill’ provides for the legitimation not only of the bastard, but of the adulterine bastard, and measures the compensation to be paid to the putative father. The tract on ‘Social Connections’ appears to assume that the temporary cohabitation of the sexes is part of the accustomed order of society, and on this assumption it minutely regulates the mutual rights of the parties, showing an especial care for the interests of the woman, even to the extent of reserving to her the value of her domestic services during her residence in the common dwelling. One remark ought, however, to be made on these provisions of the Brehon law. It is not inconceivable that, surprising as they are, they may be the index to a social advance. Cæsar plainly found the Celts of the Continent polygamous, living in families held together by stringent Paternal Power. He, a Roman, familiar with a Patria Potestas as yet undecayed, thinks it worthy of remark that the head of a Gallic household had the power of life and death over his wives as well as his children, and notices with astonishment that, when a husband died under suspicious circumstances, his wives were treated with the same cruelty as a body of household slaves at Rome whose master had been killed by an unknown hand. (B. G., vi. 19.) Now, though very much cannot be confidently said about the transition (which, nevertheless, is an undoubted fact) of many societies from polygamy to monogamy under influences other than those of religion, it may plausibly be conjectured that here and there it had its cause in liberty of divorce. The system which permitted a plurality of wives may have passed into the system which forbade more than one wife at a time, but which did not go farther. The monogamy of the modern and Western world is, in fact, the monogamy of the Romans, from which the license of divorce has been expelled by Christian morality. There are hardly any materials for an opinion upon the degree of influence exercised by the Church over the transformation of marriage-relations in Ireland, but there are several indications that the ecclesiastical rules as to the conditions of a valid marriage established themselves very slowly among the ruder races on the outskirts of what had been the Roman Empire. Mr. Burton (‘History of Scotland,’ ii. 213), in speaking of the number of illegitimate claimants who brought their pretensions to the Crown of Scotland before Edward the First, observes: ‘That they should have pushed their claims only shows that the Church had not yet absolutely established the rule that from her and her ceremony and sacrament could alone come the union capable of transmitting a right of succession to offspring.’ The tract on ‘Social Connexions’ notices a ‘first’ wife, and the recognition may be attributable to the Church, but on the whole my impression certainly is that the extremely ascetic form under which Christianity was introduced into Ireland was unfavourable to its obtaining a hold on popular morality. The common view seems to have been that chastity was the professional virtue of a special class, for the Brehon tracts, which make the assumptions I have described as to the morals of the laity, speak of irregularity of life in a monk or bishop with the strongest reprobation and disgust. At the present moment Ireland is probably the one of all Western countries in which the relations of the sexes are most nearly on the footing required by the Christian theory; nor is there any reasonable doubt that this result has been brought about in the main by the Roman Catholic clergy. But this purification of morals was effected during the period through which monks and monasticism were either expelled from Ireland or placed under the ban of the law.
I will take this opportunity of saying that the influence of Christianity on a much more famous system than the Brehon law has always seemed to me to be greatly overstated by M. Troplong and other well-known juridical writers. There is, of course, evidence of Christian influence on Roman law in the disabilities imposed on various classes of heretics and in the limitations of that liberty of divorce which belonged to the older jurisprudence. But, even in respect of divorce, the modifications strike me as less than might have been expected from what we know of the condition of opinion in the Roman world; and, as regards certain improvements said to have been introduced by Christianity into the Imperial law of slavery, they were probably quickened by its influence, but they began in principles which were of Stoical rather than of Christian origin. I do not question the received opinion that Christianity greatly mitigated and did much to abolish personal and predial slavery in the West, but the Continental lawyers of whom I spoke considerably antedate its influence, and take far too little account of the prodigious effects subsequently produced by the practical equality of all men within the pale of the Catholic priesthood. But I principally deprecate these statements, which in some countries have almost become professional commonplaces, for two reasons. They slur over a very instructive fact, the great unmalleability of all bodies of law; and they obscure an interesting and yet unsettled problem, the origin of the Canon law. The truth seems to be that the Imperial Roman law did not satisfy the morality of the Christian communities, and this is the most probable reason why another body of rules grew up by its side and ultimately almost rivalled it.
Lecture 3. – Kinship as the Basis of Society.
The most recent researches into the primitive history of society point to the conclusion that the earliest tie which knitted men together in communities was Consanguinity or Kinship. The subject has been approached of late years from several different sides, and there has been much dispute as to what the primitive blood-relationship implied, and how it arose; but there has been general agreement as to the fact I have stated. The caution is perhaps needed that we must not form too loose a conception of the kinship which once stood in the place of the multiform influences which are now the cement of human societies. It was regarded as an actual bond of union, and in no respect as a sentimental one. The notion of what, for want of a better phrase, I must call a moral brotherhood in the whole human race has been steadily gaining ground during the whole course of history, and we have now a large abstract term answering to this notion—Humanity. The most powerful of the agencies which have brought about this broader and laxer view of kinship has undoubtedly been Religion, and indeed one great Eastern religion extended it until for some purposes it embraced all sentient nature. All this modern enlargement of the primitive conception of kinship must be got rid of before we can bring it home to ourselves. There was no brotherhood recognised by our savage forefathers except actual consanguinity regarded as a fact. If a man was not of kin to another there was nothing between them. He was an enemy to be slain, or spoiled, or hated, as much as the wild beasts upon which the tribe made war, as belonging indeed to the craftiest and the cruellest order of wild animals. It would scarcely be too strong an assertion that the dogs which followed the camp had more in common with it than the tribesmen of an alien and unrelated tribe.
The tribes of men with which the student of jurisprudence is concerned are exclusively those belonging to the races now universally classed, on the ground of linguistic affinities, as Aryan and Semitic. Besides these he has at most to take into account that portion of the outlying mass of mankind which has lately been called Uralian, the Turks, Hungarians, and Finns. The characteristic of all these races, when in the tribal state, is that the tribes themselves, and all subdivisions of them, are conceived by the men who compose them as descended from a single male ancestor. Such communities see the Family group with which they are familiar to be made up of the descendants of a single living man, and of his wife or wives; and perhaps they are accustomed to that larger group, formed of the descendants of a single recently deceased ancestor, which still survives in India as a compact assemblage of blood-relatives, though it is only known to us through the traces it has left in our Tables of Inheritance. The mode of constituting groups of kinsmen which they see proceeding before their eyes they believe to be identical with the process by which the community itself was formed. Thus the theoretical assumption is that all the tribesmen are descended from some common ancestor, whose descendants have formed sub-groups, which again have branched off into others, till the smallest group of all, the existing Family, is reached. I believe I may say that there is substantial agreement as to the correctness of these statements so long as they are confined to the Aryan, Semitic, and Uralian races. At most it is asserted that, among the recorded usages of portions of these races, there are obscure indications of another and an earlier state of things. But then a very different set of assertions from these are made concerning that large part of the human race which cannot be classed as Aryan, Semitic, or Uralian. It is, first of all, alleged that there is evidence of the wide prevalence among them of ideas on the subject of Consanguinity which are irreconcileable with the assumption of common descent from a single ancestor. Next, it is pointed out that some small, isolated, and very barbarous communities—perhaps long hidden in inaccessible Indian valleys, or within the ring of a coral reef in the Southern Seas—still follow practices which it would be incorrect and unjust to call immoral, because, in the view we are considering, they are older than morality. The suggestion is finally made that if these practices were, in an older stage of the world’s history, very much more widely extended than at present, the abnormal, non-Aryan, non-Semitic, non-Uralian notions about kinship of which I have spoken would find their explanation. If, indeed, the conclusion here pointed at expresses the truth, and if these practices were really at one time universal, it would be an undeserved compliment to the human race to say that it once followed the ways of the lower animals, since, in point of fact, all the lower animals do not follow the practices thus attributed to them. But, whatever be the interest of such enquiries, they do not concern us till the Kinship of the higher races can be distinctly shown to have grown out of the Kinship now known only to the lower, and even then they concern us only remotely. No doubt several recent writers do believe in the descent of one form of consanguinity from the other. Mr. Lewis Morgan, of New York, the author of a remarkable and very magnificent volume on ‘Systems of Consanguinity and Affinity in the Human Family,’ published by the Smithsonian Institute at Washington, reckons no less than ten stages (p. 486) through which communities founded on kinship have passed before that form of the family was developed out of which the Aryan tribes conceive themselves to have sprung. But Mr. Morgan also says of the system known upon the evidence actually to prevail among the Aryan, Semitic, and Uralian divisions of mankind that (p. 469) it ‘manifestly proceeds upon the assumption of the existence of marriage between single pairs, and of the certainty of parentage through the marriage relation.’ ‘Hence,’ he adds, ‘it must have come into existence after the establishment of marriage between single pairs.’
A remark of considerable importance to the student of early usage has now to be made respecting the bond of union recognised by these greater races. Kinship, as the tie binding communities together, tends to be regarded as the same thing with subjection to a common authority. The notions of Power and Consanguinity blend, but they in nowise supersede one another. We have a familiar example of this mixture of ideas in the subjection of the smallest group, the Family, to its patriarchal head. Wherever we have evidence of such a group, it becomes difficult to say whether the persons comprised in it are most distinctly regarded as kinsmen, or as servile or semi-servile dependants of the person who was the source of their kinship. The confusion, however, if we may so style it, of kinship with subjection to patriarchal power is observable also in the larger groups into which the Family expands. In some cases the Tribe can hardly be otherwise described than as the group of men subject to some one chieftain. This peculiar blending of ideas is undoubtedly connected with the extension (a familiar fact to most of us) of the area of ancient groups of kindred by artifices or fictions. Just as we find the Family recruited by strangers brought under the paternal power of its head by adoption, so we find the Tribe, or Clan, including a number of persons, in theory of kin to it, yet in fact connected with it only by common dependence on the Chief. I do not affect to give any simple explanation of the subjection of the various assemblages of kindred to forms of power of which the patriarchal power of the head of the family is the type. Doubtless it is partly to be accounted for by deep-seated instincts. But Mr. Morgan’s researches seem to me to have supplied another partial explanation. He has found that among rude and partially nomad communities great numbers of kindred, whom we should keep apart in mind, and distinguish from one another in language, are grouped together in great classes and called by the same general names. Every man is related to an extraordinary number of men called his brothers, to an extraordinary number called his sons, to an extraordinary number called his uncles. Mr. Morgan explains the fact in his own way, but he points out the incidental convenience served by this method of classification and nomenclature. Though the point may not at first strike us, kinship is a clumsy basis for communities of any size, on account of the difficulty which the mind, and particularly the untutored mind, has in embracing all the persons bound to any one man by tie of blood, and therefore (which is the important matter) connected with him by common responsibilities and rights. A great extension and considerable relaxation of the notion of kinship gets over the difficulty among the lower races, but it may be that, among the higher, Patriarchal Power answers the same object. It simplifies the conceptions of kinship and of conjoint responsibility, first in the Patriarchal Family and ultimately in the Clan or Tribe.
We have next to consider the epoch, reached at some time by all the portions of mankind destined to civilisation, at which tribal communities settle down upon a definite space of land. The liveliest account which I have read of this process occurs in an ancient Indian record which has every pretension to authenticity. In a very interesting volume published by the Government of Madras, and called ‘Papers on Mirasi Right’ (Madras, 1862), there are printed some ancient Memorial Verses, as they are called, which describe the manner in which the Vellalee, a possibly Aryan tribe, followed their chief into Tondeimandalam, a region roughly corresponding with a state once famous in modern Indian history, Arcot. There the Vellalee conquered and extirpated, or enslaved, some more primitive population and took permanent possession of its territory. The poetess—for the lines are attributed to a woman—compares the invasion to the flowing of the juice of the sugar-cane over a flat surface. (‘Mirasi Papers,’ p. 233.) The juice crystallises, and the crystals are the various village-communities. In the middle is one lump of peculiarly fine sugar, the place where is the temple of the god. Homely as is the image, it seems to me in one respect peculiarly felicitous. It represents the tribe, though moving in a fused mass of men, as containing within itself a principle of coalescence which began to work as soon as the movement was over. The point is not always recollected. Social history is frequently considered as beginning with the tribal settlement, and as though no principles of union had been brought by the tribe from an older home. But we have no actual knowledge of any aboriginal or autochthonous tribe. Wherever we have any approximately trustworthy information concerning the tribes which we discern in the far distance of history, they have always come from some more ancient seat. The Vellalee, in the Indian example, must have been agriculturists somewhere, since they crystallised at once into village-communities.
It has long been assumed that the tribal constitution of society belonged at first to nomad communities, and that, when associations of men first settled down upon land, a great change came over them. But the manner of transition from nomad to settled life, and its effects upon custom and idea, have been too much described, as it seems to me, from mere conjecture of the probabilities; and the whole process, as I have just observed, has been conceived as more abrupt than such knowledge as we have would lead us to believe it to have been. Attention has thus been drawn off from one assertion on this subject which may be made, I think, upon trustworthy evidence—that, from the moment when a tribal community settles down finally upon a definite space of land, the Land begins to be the basis of society in place of the Kinship. The change is extremely gradual, and in some particulars it has not even now been fully accomplished, but it has been going on through the whole course of history. The constitution of the Family through actual blood-relationship is of course an observable fact, but, for all groups of men larger than the Family, the Land on which they live tends to become the bond of union between them, at the expense of Kinship, ever more and more vaguely conceived. We can trace the development of idea both in the large and now extremely miscellaneous aggregations of men combined in States or Political Communities, and also in the smaller aggregations collected in Village-Communities and Manors, among whom landed property took its rise. The barbarian invaders of the Western Roman Empire, though not uninfluenced by former settlements in older homes, brought back to Western Europe a mass of tribal ideas which the Roman dominion had banished from it; but, from the moment of their final occupation of definite territories, a transformation of these ideas began. Some years ago I pointed out (‘Ancient Law,’ pp. 103 et seq.) the evidence furnished by the history of International Law that the notion of territorial sovereignty, which is the basis of the international system, and which is inseparably connected with dominion over a definite area of land, very slowly substituted itself for the notion of tribal sovereignty. Clear traces of the change are to be seen in the official style of kings. Of our own kings, King John was the first who always called himself King of England. (Freeman, ‘Norman Conquest,’ I. 82, 84.) His predecessors commonly or always called themselves Kings of the English. The style of the king reflected the older tribal sovereignty for a much longer time in France. The title of King of France may no doubt have come into use in the vernacular soon after the accession of the dynasty of Capet, but it is an impressive fact that, even at the time of the Massacre of St. Bartholomew, the Kings of France were still in Latin ‘Reges Francorum;’ and Henry the Fourth only abandoned the designation because it could not be got to fit in conveniently on his coins with the title of King of Navarre, the purely feudal and territorial principality of the Bourbons. (Freeman, loc. cit.) We may bring home to ourselves the transformation of idea in another way. England was once the country which Englishmen inhabited. Englishmen are now the people who inhabit England. The descendants of our forefathers keep up the tradition of kinship by calling themselves men of English race, but they tend steadily to become Americans and Australians. I do not say that the notion of consanguinity is absolutely lost; but it is extremely diluted, and quite subordinated to the newer view of the territorial constitution of nations. The blended ideas are reflected in such an expression as ‘Fatherland,’ which is itself an index to the fact that our thoughts cannot separate national kinship from common country. No doubt it is true that in our day the older conception of national union through consanguinity has seemed to be revived by theories which are sometimes called generally theories of Nationality, and of which particular forms are known to us as Pan-Sclavism and Pan-Teutonism. Such theories are in truth a product of modern philology, and have grown out of the assumption that linguistic affinities prove community of blood. But wherever the political theory of Nationality is distinctly conceived, it amounts to a claim that men of the same race shall be included, not in the same tribal, but in the same territorial sovereignty.
We can perceive, from the records of the Hellenic and Latin city-communities, that there, and probably over a great part of the world, the substitution of common territory for common race as the basis of national union was slow, and not accomplished without very violent struggles. ‘The history of political ideas begins,’ I have said elsewhere, ‘with the assumption that kinship in blood is the sole possible ground of community in political functions; nor is there any of those subversions of feeling which we emphatically term revolutions so startling and so complete as the change which is accomplished when some other principle—such as that, for instance, of local contiguity—establishes itself for the first time as the basis of common political action.’ The one object of ancient democracies was, in fact, to be counted of kin to the aristocracies, simply on the ground that the aristocracy of old citizens, and the democracy of new, lived within the same territorial circumscription. The goal was reached in time both by the Athenian Demos and by the Roman Plebs; but the complete victory of the Roman popular party was the source of influences which have not spent themselves at the present moment, since it is one of the causes why the passage from the Tribal to the Territorial conception of Sovereignty was much more easy and imperceptible in the modern than in the older world. I have before stated that a certain confusion, or at any rate indistinctness of discrimination, between consanguinity and common subjection to power is traceable among the rudiments of Aryan thought, and no doubt the mixture of notions has helped to bring about that identification of common nationality with common allegiance to the King, which has greatly facilitated the absorption of new bodies of citizens by modern commonwealths. But the majesty with which the memory of the Roman Empire surrounded all kings has also greatly contributed to it, and without the victory of the Roman Plebeians there would never have been, I need hardly say, any Roman Empire.
The new knowledge which has been rapidly accumulating of late years enables us to track precisely the same transmutation of ideas amid the smaller groups of kinsmen settled on land and forming, not Commonwealths, but Village-Communities. The historian of former days laboured probably under no greater disadvantage than that caused by his unavoidable ignorance of the importance of these communities, and by the necessity thus imposed upon him of confining his attention to the larger assemblages of tribesmen. It has often, indeed, been noticed that a Feudal Monarchy was an exact counterpart of a Feudal Manor, but the reason of the correspondence is only now beginning to dawn upon us, which is, that both of them were in their origin bodies of assumed kinsmen settled on land and undergoing the same transmutation of ideas through the fact of settlement. The history of the larger groups ends in the modern notions of Country and Sovereignty; the history of the smaller in the modern notions of Landed Property. The two courses of historical development were for a long while strictly parallel, though they have ceased to be so now.
The naturally organised, self-existing, Village-Community can no longer be claimed as an institution specially characteristic of the Aryan races. M. de Laveleye, following Dutch authorities, has described these communities as they are found in Java; and M. Renan has discovered them among the obscurer Semitic tribes in Northern Africa. But, wherever they have been examined, the extant examples of the group suggest the same theory of its origin which Mr. Freeman (‘Comparative Politics,’ p. 103) has advanced concerning the Germanic village-community or Mark; ‘This lowest political unit was at first, here (i. e. in England) as elsewhere, formed of men bound together by a tie of kindred, in its first estate natural, in a later stage either of kindred natural or artificial.’ The evidence, however, is now quite ample enough to furnish us with strong indications not only of the mode in which these communities began, but of the mode in which they transformed themselves. The world, in fact, contains examples of cultivating groups in every stage, from that in which they are actually bodies of kinsmen, to that in which the merest shadow of consanguinity survives and the assemblage of cultivators is held together solely by the land which they till in common. The great steps in the scale of transition seem to me to be marked by the Joint Family of the Hindoos, by the House-Community of the Southern Sclavonians, and by the true Village-Community, as it is found first in Russia and next in India. The group which I have placed at the head, the Hindoo Joint Family, is really a body of kinsmen, the natural and adoptive descendants of a known ancestor. Although the modern law of India gives such facilities for its dissolution that it is one of the most unstable of social compounds, and rarely lasts beyond a couple of generations, still, so long as it lasts, it has a legal corporate existence, and exhibits, in the most perfect state, that community of proprietary enjoyment which has been so often observed, and (let me add) so often misconstrued, in cultivating societies of archaic type. ‘According to the true notion of a joint undivided Hindoo family,’ said the Privy Council, ‘no member of the family, while it remains undivided, can predicate of the joint undivided property that he, that particular member, has a certain definite share. . . . The proceeds of undivided property must be brought, according to the theory, into the common chest or purse, and then dealt with according to the modes of enjoyment of the members of an undivided family.’ (Per Lord Westbury, Appovier v. Rama Subba Aiyan, 11 Moore’s Indian Appeals, 75.) While, however, these Hindoo families, ‘joint in food, worship, and estate,’ are constantly engaged in the cultivation of land, and dealing with its produce ‘according to the modes of enjoyment of an undivided family,’ they are not village-communities. They are only accidentally connected with the land, however extensive their landed property may be. What holds them together is not land, but consanguinity, and there is no reason why they should not occupy themselves, as indeed they frequently do, with trade or with the practice of a handicraft. The House-Community, which comes next in the order of development, has been examined by M. de Laveleye (P. et s. F. P., p. 201), and by Mr. Patterson (‘Fortnightly Review,’ No. xliv.), in Croatia, Dalmatia, and Illyria, countries which, though nearer to us than India, have still much in common with the parts of the East not brought completely under Mahometan influences; but there is reason to believe that neither Roman law nor feudalism entirely crushed it even in Western Europe. It is a remarkable fact that assemblages of kinsmen, almost precisely the counterpart of the House-Communities surviving among the Sclavonians, were observed by M. Dupin, in 1840, in the French Department of the Nièvre, and were able to satisfy him that even in 1500 they had been accounted ancient. These House-Communities seem to me to be simply the Joint Family of the Hindoos, allowed to expand itself without hindrance and settled for ages on the land. All the chief characteristics of the Hindoo institution are here—the common home and common table, which are always in theory the centre of Hindoo family life; the collective enjoyment of property and its administration by an elected manager. Nevertheless, many instructive changes have begun which show how such a group modifies itself in time. The community is a community of kinsmen; but, though the common ancestry is probably to a great extent real, the tradition has become weak enough to admit of considerable artificiality being introduced into the association, as it is found at any given moment, through the absorption of strangers from outside. Meantime, the land tends to become the true basis of the group; it is recognised as of preeminent importance to its vitality, and it remains common property, while private ownership is allowed to show itself in moveables and cattle. In the true Village-Community, the common dwelling and common table which belong alike to the Joint Family and to the House-Community, are no longer to be found. The village itself is an assemblage of houses, contained indeed within narrow limits, but composed of separate dwellings, each jealously guarded from the intrusion of a neighbour. The village lands are no longer the collective property of the community; the arable lands have been divided between the various households; the pasture lands have been partially divided; only the waste remains in common. In comparing the two extant types of Village-Community which have been longest examined by good observers, the Russian and the Indian, we may be led to think that the traces left on usage and idea by the ancient collective enjoyment are faint exactly in proportion to the decay of the theory of actual kinship among the co-villagers. The Russian peasants of the same village really believe, we are told, in their common ancestry, and accordingly we find that in Russia the arable lands of the village are periodically re-distributed, and that the village artificer, even should he carry his tools to a distance, works for the profit of his co-villagers. In India, though the villagers are still a brotherhood, and though membership in the brotherhood separates a man from the world outside, it is very difficult to say in what the tie is conceived as consisting. Many palpable facts in the composition of the community are constantly inconsistent with the actual descent of the villagers from any one ancestor. Accordingly, private property in land has grown up, though its outlines are not always clear; the periodical re-division of the domain has become a mere tradition, or is only practised among the ruder portions of the race; and the results of the theoretical kinship are pretty much confined to the duty of submitting to common rules of cultivation and pasturage, of abstaining from sale or alienation without the consent of the co-villagers, and (according to some opinions) of refraining from imposing a rack-rent upon members of the same brotherhood. Thus, the Indian Village-Community is a body of men held together by the land which they occupy: the idea of common blood and descent has all but died out. A few steps more in the same course of development—and these the English law is actually hastening—will diffuse the familiar ideas of our own country and time throughout India; the Village-Community will disappear, and landed property, in the full English sense, will come into existence. Mr. Freeman tells us that Uffington, Gillingham, and Tooting were in all probability English village-communities originally settled by the Uffingas, Gillingas, and Totingas, three Teutonic joint-families. But assuredly all men who live in Tooting do not consider themselves brothers; they barely acknowledge duties imposed on them by their mutual vicinity; their only real tie is through their common country.
The ‘natural communism’ of the primitive cultivating groups has sometimes been described of late years, and more particularly by Russian writers, as an anticipation of the most advanced and trenchant democratic theories. No account of the matter could in my judgment be more misleading. If such terms as ‘aristocratic’ and ‘democratic’ are to be used at all, I think it would be a more plausible statement that the transformation and occasional destruction of the village-communities were caused, over much of the world, by the successful assault of a democracy on an aristocracy. The secret of the comparatively slight departure of the Russian village-communities from what may be believed to have been the primitive type, appears to me to lie in the ancient Russian practice of colonisation, by which swarms were constantly thrown off from the older villages to settle somewhere in the enormous wastes; but the Indian communities, placed in a region of which the population has from time immemorial been far denser than in the North, bear many marks of past contests between the ancient brotherhood of kinsmen and a class of dependants outside it struggling for a share in the land, or for the right to use it on easy terms. I am aware that there is some grotesqueness at first sight in a comparison of Indian villagers, in their obscurity and ignorance, and often in their squalid misery, to the citizens of Athens or Rome; yet no tradition concerning the origin of the Latin and Hellenic states seems more trustworthy than that which represents them as formed by the coalescence of two or more village-communities, and indeed, even in their most glorious forms, they appear to me throughout their early history to belong essentially to that type. It has often occurred to me that Indian functionaries, in their vehement controversies about the respective rights of the various classes which make up the village-community, are unconsciously striving to adjust, by a beneficent arbitration, the claims and counter-claims of the Eupatrids and the Demos, of the Populus and the Plebs. There is even reason to think that one well-known result of long civil contention in the great states of antiquity has shown itself every now and then in the village-communities, and that all classes have had to submit to that sort of authority which assumed its most innocent shape in the office of the Roman Dictator, its more odious in the usurpation of the Greek Tyrant. The founders of a part of one modern European aristocracy, the Danish, are known to have been originally peasants who fortified their houses during deadly village struggles and then used their advantage.
Such commencements of nobility as that to which I have just referred, appear, however, to have been exceptional in the Western world, and other causes must be assigned for that great transformation of the Village-Community which has been carried out everywhere in England, a little less completely in Germany, much less in Russia and in all Eastern Europe. I have attempted in another work (‘Village-Communities in the East and West,’ pp. 131 et seq.) to give an abridged account of all that is known or has been conjectured on the subject of that ‘Feudalisation of Europe’ which has had the effect of converting the Mark into the Manor, the Village-Community into the Fief; and I shall presently say much on the new light which the ancient laws of Ireland have thrown on the early stages of the process. At present I will only observe that, when completed, its effect was to make the Land the exclusive bond of union between men. The Manor or Fief was a social group wholly based upon the possession of land, and the vast body of feudal rules which clustered round this central fact are coloured by it throughout. That the Land is the foundation of the feudal system has, of course, been long and fully recognised; but I doubt whether the place of the fact in history has been sufficiently understood. It marks a phase in a course of change continued through long ages and in spheres much larger than that of landed property. At this point the notion of common kinship has been entirely lost. The link between Lord and Vassal produced by Commendation is of quite a different kind from that produced by Consanguinity. When the relation which it created had lasted some time, there would have been no deadlier insult to the lord than to attribute to him a common origin with the great bulk of his tenants. Language still retains a tinge of the hatred and contempt with which the higher members of the feudal groups regarded the lower; and the words of abuse traceable to this aversion are almost as strong as those traceable to differences of religious belief. There is, in fact, little to choose between villain, churl, miscreant, and boor.
The break-up of the feudal group, far advanced in most European countries, and complete in France and England, has brought us to the state of society in which we live. To write its course and causes would be to re-write most of modern history, economical as well as political. It is not, however, difficult to see that without the ruin of the smaller social groups, and the decay of the authority which, whether popularly or autocratically governed, they possessed over the men composing them, we should never have had several great conceptions which lie at the base of our stock of thought. Without this collapse, we should never have had the conception of land as an exchangeable commodity, differing only from others in the limitation of the supply; and hence, without it, some famous chapters of the science of Political Economy would not have been written. Without it, we should not have had the great increase in modern times of the authority of the State—one of many names for the more extensive community held together by common country. Consequently, we should not have had those theories which are the foundation of the most recent systems of jurisprudence—the theory of Sovereignty, or (in other words) of a portion in each community possessing unlimited coercive force over the rest—and the theory of Law as exclusively the command of a sovereign One or Number. We should, again, not have had the fact which answers to these theories—the ever-increasing activity of Legislatures; and, in all probability, that famous test of the value of legislation, which its author turned into a test of the soundness of morals, would never have been devised—the greatest happiness of the greatest number.
In saying that the now abundant phenomena of primitive ownership open to our observation strongly suggest that the earliest cultivating groups were formed of kinsmen, that these gradually became bodies of men held together by the land which they cultivated, and that Property in Land (as we now understand it) grew out of the dissolution of these latter assemblages, I would not for a moment be understood to assert that this series of changes can be divided into stages abruptly separated from one another. The utmost that can be affirmed is that certain periods in this history are distinguished by the predominance, though not the exclusive existence, of ideas proper to them. Here, as elsewhere, the world is full of ‘survivals,’ and the view of society as held together by kinship still survives when it is beginning to be held together by land. Similarly, the feudal conception of social relations still exercises powerful influence when land has become a merchantable commodity. There is no country in which the theory of land as a form of property like any other has been more unreservedly accepted than our own. Yet English lawyers live in fœce feodorum. Our law is saturated with feudal principles, and our customs and opinions are largely shaped by them. Indeed, within the last few years we have even discovered that vestiges of the village-community have not been wholly effaced from our law, our usages, and our methods of tillage.
The caution that the sequence of these stages does not imply abrupt transition from any one to the next seems to me especially needed by the student of the Ancient Laws of Ireland. Dr. Sullivan, of whose Introduction to the lately published lectures of O’Curry I have already spoken, dwells with great emphasis on the existence of private property among the ancient Irish, and on the jealousy with which it was guarded. But though it is very natural that a learned Irishman, stung by the levity which has denied to his ancestors all civilised institutions, should attach great importance to the indications of private ownership in the Brehon law, I must say that they do not, in my judgment, constitute its real interest. The instructiveness of the Brehon tracts, at least to the student of legal history, seems to me to arise from their showing that institutions of modern stamp may be in existence with a number of rules by their side which savour of another and a greatly older order of ideas. It cannot be doubted, I think, that the primitive notion of kinship, as the cement binding communities together, survived longer among the Celts of Ireland and the Scottish Highlands than in any Western society, and that it is stamped on the Brehon law even more clearly than it is upon the actual land-law of India. It is perfectly true that the form of private ownership in land which grew out of the appropriation of portions of the tribal domain to individual households of tribesmen is plainly recognised by the Brehon lawyers; yet the rights of private owners are limited by the controlling rights of a brotherhood of kinsmen, and the control is in some respects even more stringent than that exercised over separate property by an Indian village-community. It is also true that another form of ownership in land, that which had its origin in the manorial authority of the lord over the cultivating group, has also begun to show itself; yet, though the Chief of the Clan is rapidly climbing to a position answering to the Lordship of a Manor, he has not fully ascended to it, and the most novel information contained in the tracts is that which they supply concerning the process of ascent.
The first instructive fact which strikes us on the threshold of the Brehon law is, that the same word, ‘Fine,’ or Family, is applied to all the subdivisions of Irish society. It is used for the Tribe in its largest extension as pretending to some degree of political independence, and for all intermediate bodies down to the Family as we understand it, and even for portions of the Family (Sullivan, ‘Introduction, clxii.). It seems certain that each of the various groups into which ancient Celtic society was divided conceived itself as descended from some one common ancestor, from whom the name, or one of the names, of the entire body of kinsmen was derived. Although this assumption was never in ancient Ireland so palpable a fiction as the affiliation of Greek races or communities on an heroic eponymous progenitor, it was probably at most true of the Chief and his house so far as regarded the Irish Tribe taken as a political unit. But it is probable that it was occasionally, and even often true of the smaller group, the Sept, sub-Tribe, or Joint Family, which appears to me to be the legal unit of the Brehon tracts. The traditions regarding the eponymous ancestor of this group were distinct and apparently trustworthy, and its members were of kin to one another in virtue of their common descent from the ancestor who gave his name to all. The chief for the time being was, as the Anglo-Irish judges called him in the famous ‘Case of Gavelkind,’ the caput cognationis.
Not only was the Tribe or Sept named after this eponymous ancestor, but the territory which it occupied also derived from him the name which was in commonest use. I make this remark chiefly because a false inference has been drawn from an assertion of learned men concerning the connection between names of families and names of places, which properly understood is perfectly sound. It has been laid down that, whenever a family and place have the same name, it is the place which almost certainly gave its name to the family. This is no doubt true of feudalised countries, but it is not true of countries as yet unaffected by feudalism. It is likely that such names as ‘O’Brien’s Country’ and ‘Macleod’s Country’ are as old as any appropriation of land by man; and this is worth remembering when we are tempted to gauge the intelligence of an early writer by the absurdity of his etymologies. ‘Hibernia’ from an eponymous discoverer, ‘Hyber,’ sounds ridiculous enough; but the chronicler who gives it may have been near enough the age of tribal society to think that the connection between the place and the name was the most natural and probable he could suggest. Even the most fanciful etymologies of the Greeks, such as Hellespont, from Helle, may have been ‘survivals’ from a primitive tribal system of naming places. In the relation between names and places, as in much more important matters, feudalism has singularly added to the importance of land.
Let me now state the impression which, partly from the examination of the translated texts, legal and non-legal, and partly by the aid of Dr. Sullivan’s Introduction, I have formed of the agrarian organisation of an Irish Tribe. It has been long settled, in all probability, upon the tribal territory. It is of sufficient size and importance to constitute a political unit, and possibly at its apex is one of the numerous chieftains whom the Irish records call Kings. The primary assumption is that the whole of the tribal territory belongs to the whole of the tribe, but in fact large portions of it have been permanently appropriated to minor bodies of tribesmen. A part is allotted in a special way to the Chief as appurtenant to his office, and descends from Chief to Chief according to a special rule of succession. Other portions are occupied by fragments of the tribe, some of which are under minor chiefs or ‘flaiths,’ while others, though not strictly ruled by a chief, have somebody of a noble class to act as their representative. All the unappropriated tribe-lands are in a more especial way the property of the tribe as a whole, and no portion can theoretically be subjected to more than a temporary occupation. Such occupations are, however, frequent, and among the holders of tribe-land, on these terms, are groups of men calling themselves tribesmen, but being in reality associations formed by contract, chiefly for the purpose of pasturing cattle. Much of the common tribe-land is not occupied at all, but constitutes, to use the English expression, the ‘waste’ of the tribe. Still this waste is constantly brought under tillage or permanent pasture by settlements of tribesmen, and upon it cultivators of servile status are permitted to squat, particularly towards the border. It is the part of the territory over which the authority of the Chief tends steadily to increase, and here it is that he settles his ‘fuidhir,’ or stranger-tenants, a very important class—the outlaws and ‘broken’ men from other tribes who come to him for protection, and who are only connected with their new tribe by their dependence on its chief, and through the responsibility which he incurs for them.
There is probably great uniformity in the composition of the various groups occupying, permanently or temporarily, the tribal territory. Each seems to be more or less a miniature of the large tribe which includes them all. Each probably contains freemen and slaves, or at all events men varying materially in personal status, yet each calls itself in some sense a family. Each very possibly has its appropriated land and its waste, and conducts tillage and grazing on the same principles. Each is either under a Chief who really represents the common ancestor of all the free kinsmen, or under somebody who has undertaken the responsibilities devolving according to primitive social idea upon the natural head of the kindred. In enquiries of the class upon which we are engaged the important fact which I stated here three years ago should always be borne in mind. When the first English emigrants settled in New England they distributed themselves in village communities; so difficult is it to strike out new paths of social life and new routes of social habit. It is all but certain that, in such a society as that of which we are speaking, one single model of social organisation and social practice would prevail, and none but slight or insensible departures from it would be practicable or conceivable.
But still the society thus formed is not altogether stationary. The temporary occupation of the common tribe-land tends to become permanent, either through the tacit sufferance or the active consent of the tribesmen. Particular families manage to elude the theoretically periodical re-division of the common patrimony of the group; others obtain allotments with its consent as the reward of service or the appanage of office; and there is a constant transfer of lands to the Church, and an intimate intermixture of tribal rights with ecclesiastical rights. The establishment of Property in Severalty is doubtless retarded both by the abundance of land and by the very law under which, to repeat the metaphor of the Indian poetess, the tribal society has crystallised, since each family which has appropriated a portion of tribe-land tends always to expand into an extensive assemblage of tribesmen having equal rights. But still there is a co-operation of causes always tending to result in Several Property, and the Brehon law shows that by the time it was put into shape they had largely taken effect. As might be expected, the severance of land from the common territory appears to have been most complete in the case of Chiefs, many of whom have large private estates held under ordinary tenure in addition to the demesne specially attached to their signory.
Such is the picture of Irish tribal organisation in relation to the land which I have been able to present to my own mind. All such descriptions must be received with reserve: among other reasons, because even the evidence obtainable from the law-tracts is still incomplete. But if the account is in any degree correct, all who have attended to this class of subjects will observe at once that the elements of what we are accustomed to consider the specially Germanic land-system are present in the territorial arrangements of the Irish tribe. Doubtless there are material distinctions. Kinship as yet, rather than landed right, knits the members of the Irish groups together. The Chief is as yet a very different personage from the Lord of the Manor. And there are no signs as yet even of the beginnings of great towns and cities. Still the assertion, which is the text of Dr. Sullivan’s treatise, may be hazarded without rashness, that everything in the Germanic has at least its embryo in the Celtic land system. The study of the Brehon law leads to the same conclusion pointed at by so many branches of modern research. It conveys a stronger impression than ever of a wide separation between the Aryan race and races of other stocks, but it suggests that many, perhaps most, of the differences in kind alleged to exist between Aryan subraces are really differences merely in degree of development. It is to be hoped that contemporary thought will before long make an effort to emancipate itself from those habits of levity in adopting theories of race which it seems to have contracted. Many of these theories appear to have little merit except the facility which they give for building on them inferences tremendously out of proportion to the mental labour which they cost the builder.
Lecture 4. – The Tribe and the Land.
It has been very commonly believed that, before the agrarian measures of James the First, Ireland was one of the countries in which private property in land was invested with least sacredness, and in which forms of ownership generally considered as barbarous most extensively prevailed. Spenser and Davis certainly suggest this opinion, and several modern writers have adopted it. The Brehon law-tracts prove, however, that it can only be received with considerable qualification and modification, and they show that private property, and especially private property in land, had long been known in Ireland at the epoch to which they belong, having come into existence either through the natural disintegration of collective ownership or through the severance of particular estates from the general tribal domain. Nevertheless it cannot, I think, be doubted that at the period to which the tracts are an index much land was held throughout Ireland under rules or customs savouring of the ancient collective enjoyment, and this I understand Dr. Sullivan to allow. (Introduction, p. cxliv.)
Part of the evidence of the fact just stated is tolerably familiar to students of Irish history. At the beginning of the seventeenth century the Anglo-Irish Judges declared the English Common Law to be in force throughout Ireland, and from the date of this decision all land in the country descended to the eldest son of the last owner, unless its devolution was otherwise determined by settlement or will. In Sir John Davis’s report of the case and of the arguments before the Court, it is recited that hitherto all land in Ireland had descended either under the rule of Tanistry or under the rules of Gavelkind. The system of inheritance here called Gavelkind is thus described: When a landowning member of an Irish Sept died, its chief made a re-distribution of all the lands of the Sept. He did not divide the estate of the dead man among his children, but used it to increase the allotments of the various households of which the Sept was made up. The Judges treated both Tanistry and Gavelkind as systems of succession after death, of a peculiarly barbarous and mischievous kind; and, as systems of succession, I shall consider them hereafter. But all systems of succession after death bear a close relation to ancient modes of enjoyment during life; for instance, in the Joint Undivided Family of the Hindoos, the stirpes, or stocks, which are only known to European law as branches of inheritors, are actual divisions of the family, and live together in distinct parts of the common dwelling. (‘Calcutta Review,’ July 1874, p. 208.) The so-called Irish Gavelkind belongs to a class of institutions very common in the infancy of law; it is a contrivance for securing comparative equality among the joint proprietors of a common fund. The redistribution here takes place at the death of a head of a household; but if equality were secured by what is practically the same process—viz., re-division after a fixed period of years—an institution would be produced which has not quite died out of Europe at the present moment, and of which there are traditions in all old countries. At the same time I have no doubt that, when the Irish Gavelkind was declared illegal, it was very far from being the only system of succession known to Ireland except Tanistry, and I think it probable that many different modes of enjoyment and inheritance were abolished by the decision giving the land to the eldest son.
It was the actual observation of peculiar agricultural usages, special methods of cultivation, and abnormal rules of tenure, which mainly enabled G. L. Von Maurer to restore the German Mark to knowledge; and it was by using Von Maurer’s results as his key that Nasse was able to decipher the scattered references to the ‘Agricultural Community of the Middle Ages’ in a variety of English documents. I venture to think that this class of observation has not been carried far enough in Ireland to yield material for a confident opinion, but there certainly seem to be vestiges of ancient collective enjoyment in the extensive prevalence of ‘rundale’ holdings in parts of the country. Under this system a definite area of land is occupied by a group of families. In the form now most common, the arable lands are held in severalty, while pasture and bog are in common. But as lately as fifty years since, cases were frequent in which the arable land was divided into farms which shifted among the tenant-families periodically, and sometimes annually. Even when no such division was made, a well-known relic of the Mark-system, as it showed itself in Germany and England, was occasionally found: the arable portion of the estates was composed of three different qualities of soil, and each tenant had a lot or lots in the land of each quality, without reference to position. What was virtually the same system of tenure prevailed quite recently in the Scottish Highlands. I have ascertained that the families which formed the village-communities only just extinct in the Western Highlands had the lands of the village re-distributed among them by lot at fixed intervals of time; and I gather from Mr. Skene’s valuable note on ‘Tribe Communities in Scotland’ (appended to the second volume of his edition of Fordun’s Chronicle), that he believes this system of re-division to have been once universal, or at least widely extended, among the Scottish Celts.
It is to be observed that (so far as I am able to learn) the Irish holdings in ‘rundale’ are not forms of property, but modes of occupation. There is always some person above who is legally owner of all the land held by the group of families, and who, theoretically, could change the method of holding, although, practically, popular feeling would put the greatest difficulties in his way. We must bear in mind, however, that archaic kinds of tenancy are constantly evidence of ancient forms of proprietorship. This is so in countries in which superior ownership has arisen through the natural course of events—through purchase from small allodial proprietors, through colonisation of village waste-lands become in time the lord’s waste, or (in an earlier state of society) through the sinking of whole communities of peasants into villeinage, and through a consequent transformation of the legal theory of their rights. But all this process of change would be gravely misconstrued if it were supposed that, because a Chief or Lord had come to be recognised as legal owner of the whole tribal domain, or of great portions of it, he therefore altered the accustomed methods of occupation and cultivation, or (as some would even seem to think) he began at once to regard the occupying peasantry as modern lessees or modern tenants at will. No doubt the ancient type of ownership long served as the model for tenancy; and the common holdings, dying out as property, survived as occupation. And, if this were the case in other countries, much more would it be so in Ireland, where property has changed hands so often and so violently; where during whole centuries, the owners of land neither regarded, nor were in a position to regard, the occupiers save as payers of rent and dues; and where the conception of a landlord acting on his legal ownership with a view to improvement and increase of production is altogether modern.
The chief Brehon law-tract, which sets forth the mutual rights of the collective tribe and of individual tribesmen or households of tribesmen in respect of tribal property, is called the Corus Bescna, and is printed in the Third Volume of the official edition. It presents great difficulties. I quite agree with the Editors that the commentary and glosses constantly contradict and obscure the text, either because the commentators did not understand it or because they belonged to a later period and a different stage of legal relations. But the most serious doubt which occurs to the student of the text arises from the strong and palpable bias of the compiler towards the interests of the Church; indeed, part of the tract is avowedly devoted to the law of Church property and of the organisation of religious houses. When this writer affirms that, under certain circumstances, a tribesman may grant or contract away tribal land, his ecclesiastical leaning constantly suggests a doubt as to his legal doctrine. Does he mean to lay down that the land may be parted with generally and in favour of anybody, or only that it may be alienated in favour of the Church? This difficulty of construction has an interest of its own. I am myself persuaded that the influence of the Christian Church on law has been very generally sought for in a wrong quarter, and that historians of law have too much overlooked its share in diffusing the conceptions of free contract, individual property, and testamentary succession, through the regions beyond the Roman Empire which were peopled by communities held together by the primitive tie of consanguinity. It is generally agreed among scholars that Churchmen introduced these races to wills and bequests; the Brehon tracts suggest to me at least that, along with the sacredness of bequests, they insisted upon the sacredness of contracts; and it is well known that, in the Germanic countries, their ecclesiastical societies were among the earliest and largest grantees of public or ‘folk’ land (Stubbs, ‘Constitutional History,’ vol. i. p. 154). The Will, the Contract, and the Separate Ownership were in fact indispensable to the Church as the donee of pious gifts; and they were also essential and characteristic elements in the civilisation amid which the Church had been reared to maturity. It is possible that the compiler of the Corus Bescna may have been an ecclesiastic, as he certainly would have been in any society except the Irish; but, if he were a lawyer, he writes as a lawyer would state the case on behalf of a favourite and important client. Let me add that all the Brehon writers seem to me to have a bias towards private or several, as distinguished from collective, property. No doubt it was then, as always, the great source of legal business, and it may have seemed to them, and it possibly was, the index to such advance in civilisation as their country was capable of making.
My own strong opinion is that the ‘Fine,’ whose rights and powers are the principal theme of the Corus Bescna, and whose name the translators render ‘Tribe,’ is neither the Tribe in its largest extension, nor, on the other hand, the modern Family or group of descendants from a living ancestor, but the Sept. It is 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. It is the Joint Family of the Hindoos, but with the characteristics of that group considerably modified through settlement on the land. This peculiar assemblage or corporation of blood-relatives, which has been referred to by me several times before, is formed by the continuance of the family union through several, and it may be through an indefinite number of generations. The rule throughout most of the civilised world is that, for all purposes of law, families are broken up into individuals or dissolved into a number of new families by the death of their head. But this is not necessarily the case. The group made up of those whom we vaguely call our relatives—of our brothers, nephews, great-uncles, uncles, and cousins, no less than those related to us in the ascending and descending lines—might very well, after any number of deaths, remain knitted together not only by blood and affection, but by mutual rights and duties prescribed or sanctioned by the law. An association of this sort is well known to the law of India as the Joint Undivided Family, or, to give the technical description, the Family, ‘joint in food, worship, and estate.’ If a Hindoo has become the root of a family it is not necessarily separated by his death; his children continue united for legal purposes as a corporate brotherhood, and some definite act of one or more of the brethren is required to effect a dissolution of the plexus of mutual rights and a partition of the family property. The family thus formed by the continuance of several generations in union is identical in outline with a group very familiar to the students of the older Roman law—the Agnatic Kindred. The Agnates were that assemblage of persons who would have been under the patriarchal authority of some common ancestor, if he had lived long enough to exercise it. The Joint Family of the Hindoos is that assemblage of persons who would have joined in the sacrifices at the funeral of some common ancestor, if he had died in their lifetime. In the last case the sacerdotal point of view merely takes the place of the legal or civil.
So far as we are able, amid the disadvantages under which we are placed by the obscurity of our authorities, let us examine the legal qualities which the ancient Irish law attributes to this brotherhood of kinsmen as it was found in Ireland. First of all, the ‘Tribe’ of the Brehon tracts is a corporate, organic, self-sustaining unit. ‘The Tribe sustains itself.’ (‘Ancient Laws of Ireland,’ ii. 283.) Its continuity has begun to depend on the land which it occupies—‘land,’ says one of the still unpublished tracts, ‘is perpetual man’—but it is not a purely land-owning body; it has ‘live chattels and dead chattels,’ distinguished from those of individual tribesmen. (‘Ancient Laws of Ireland,’ ii. 289.) Nor is it a purely cultivating body; it may follow a professional calling. (Ibid., iii. 49-51.) A portion of the tribal domain, probably the arable and choice pasture lands, has been allotted to separate households of tribesmen, but they hold their allotments subject to the controlling rights of the entire brotherhood, and the primary or fundamental rule is that they are to keep their shares of tribe-land intact. ‘Every tribesman is able to keep his tribe-land; he is not to sell it or alienate or conceal it, or give it to pay for crimes or contracts.’ (‘Ancient Laws of Ireland,’ ii. 283.) ‘No person should leave a rent upon his land or upon his tribe which he did not find upon it.’ (Ibid., iii. 52, 53.) ‘Everyone is wealthy who keeps his tribe-land perfect as he got it, who does not leave greater debt upon it than he found on it.’ (Ibid., iii. 55.)
Under certain circumstances the tribesman may alienate, by grant, contract, or bequest, a certain quantity of the tribe-land allotted to him; but what are the circumstances, and what the quantity, are points on which we cannot venture to make any precise statement, so obscure and contradictory are the rules set forth. But the grantee primarily contemplated is certainly the Church, though it seems clear that there is a general power of alienation, either with the consent of the entire tribal brotherhood or under pressure of strong necessity. It further appears to be beyond question that the tribesman has considerably greater power of disposition over property which he has acquired than over property which has devolved on him as a member of a tribe, and that he has more power over acquisitions made by his own unaided industry than over acquisitions made through profits arising from the cultivation of tribal land. ‘No person should grant land except such as he has purchased himself, unless by the common consent of the tribe. (‘Ancient Laws of Ireland,’ iii. 52, 53.) ‘He who has not sold or bought (i.e., he who keeps his tribe-land as he obtained it) is allowed to make grants, each according to his dignity (i.e., as the commentator explains, to the extent of one-third or one-half of his tribe-land).’ ‘He who neither sells nor purchases may give as far as the third of his tribe-share in case of little necessity and one-half in case of great necessity.’ (‘Ancient Laws of Ireland,’ iii. 47.) ‘If it be land that acquires it, it is one-half; . . . if he be a professional man, it is two-thirds of his contracts’ (iii. 49).
The distinction between acquired property and property inherited or received from kinsmen, and the enlarged power of parting with the first, are found in many bodies of ancient law—in our own early law among others. The rule that alienations, otherwise unlawful, may be made under pressure of necessity, is found in many parts of Hindoo law. The rule requiring the consent of the collective brotherhood to alienations, with many minor rules of this part of Brehon law, constantly forms part of the customs of Indian and Russian village-communities; and the duty of following common practices of tillage, which is the bequest from these communities which lasted longest in the Germanic countries, is classed by the Corus Bescna, along with Marriage, as one of the fundamental institutions of the Irish people. (‘Ancient Laws of Ireland,’ iii. 17.) But much the most striking and unexpected analogies in the Brehon law on the subject of Tribesmen and the Tribe are those which it has with the Hindoo law of Joint Undivided Families. Under the Brahminical Indian law, whenever a member of a joint family has acquired property through special scientific knowledge or the practice of a liberal art, he does not bring it into the common fund, unless his accomplishments were obtained through a training given to him by his family or at their expense. The whole law on the subject was much considered in a strange case which arose before the High Court of Madras (‘Madras High Court Reports,’ ii. 56), where a joint family claimed the gains of a dancing-girl. The decision of the Court is thus summarised by the Reporter: ‘The ordinary gains of science are divisible (i.e., they are brought into hotchpot upon partition of an undivided estate), when such science has been imparted at the family expense and acquired while receiving a family maintenance. It is otherwise when the science has been imparted at the expense of persons not members of the learner’s family.’ The very counterparts of the Indian rule and of the Indian exception are found in the ancient Irish law. ‘If (the tribesman) be a professional man—that is, if the property be acquired by judicature or poetry, or any profession whatsoever—he is capable of giving two-thirds of it to the Church . . . but, if it was the lawful profession of his tribe, he shall not give of the emolument of his profession but just as he could give of the land of his tribe.’ (Corus Bescna, ‘Ancient Laws of Ireland,’ iii. 5.)
It will be seen from the instances which I have given that the rules of the Irish Brehon law regulating the power of individual tribesmen to alienate their separate property answer to the rules of Indian Brahminical law which regulate the power of individual members of a joint family to enjoy separate property. The difference is material. The Hindoo law assumes that collective enjoyment by the whole brotherhood is the rule, and it treats the enjoyment of separate property by individual brethren as an exception—an exception, I may add, round which an enormous mass of law has now clustered. On the other hand, the Brehon law, so far as it can be understood, seems to me reconcileable with no other assumption than that individual proprietary rights have grown up and attained some stability within the circle of the tribe. The exercise of these rights is at the same time limited by the controlling powers of the collective brotherhood of tribesmen; and to these last, as to the Agnatic Kindred at Rome, some ultimate right of succession appears to be reserved. Hence the Irish legal unit is not precisely a Joint Family; if the Brehon law is to be trusted, it has considerably less of the ‘natural communism’ which characterises the Indian institution. The ‘Fine’ of the tracts is constantly spoken of in connection with landed property, and, whenever it is so connected, I imagine it to have undergone some of the changes which are constantly brought about by contact with the land, and I figure it to myself in that case as a Mark or Village-Community, in which the ideas proper to the older group out of which it grew, the Joint Family, have survived in exceptional strength. It in this respect approaches the Russian rather than the Indian type of village-community.
The ‘Judgments of Co-Tenancy’ is a Brehon law-tract, still unpublished at the time at which I write, and presenting, in its present state, considerable difficulties of interpretation. It puts, at the outset, the question,—‘Whence does Co-Tenancy arise?’ The answer given is, ‘From several heirs and from their increasing on the land.’ The tract then goes on to explain that the land is, in the first year, to be tilled by the kinsmen just as each pleases; that in the second year they are to exchange lots; that in the third year the boundaries are to be fixed; and that the whole process of severance is to be consummated in the tenth year. I trust it is not a presumptuous conjecture that the order of change here indicated is more trustworthy than the time fixed for each of its stages. The period of ten years for the entire transition from collective to separate property seems to me greatly too short, and hard to reconcile with other Irish evidence; and I suggest that the Brehon lawyer, attached to the institution of separate property, like the rest of his class, is depicting rather an ideal than an actual set of arrangements. The process, however, which is here described, if it be spread over a much longer space of time, is really in harmony with all our knowledge of the rise and progress of cultivating communities. First a Joint Family, composed of ‘several heirs increasing on the land,’ is found to have made a settlement. In the earliest stage the various households reclaim the land without set rule. Next comes the system of exchanging lots. Finally, the portions of land are enjoyed in severalty.
The references to the ancient collective ownership and ancient collective enjoyment in the non-legal Irish literature appear to be very rare. But my friend Mr. Whitley Stokes has supplied me with two passages in point. The ‘Liber Hymnorum,’ attributed to the eleventh century, contains (folio 5a) the following statement: ‘Numerous were the human beings in Ireland at that time (i.e. the time of the sons of Aed Slane, ad 658-694), and such was their number that they used to get only thrice nine ridges for each man in Ireland, to wit, nine of bog, and nine of smooth (arable), and nine of wood.’ Another Irish manuscript, believed to date from the twelfth century, the ‘Lebor na Huidre,’ says that ‘there was not ditch, nor fence, nor stone-wall round land, till came the period of the sons of Aed Slane, but (only) smooth fields. Because of the abundance of the households in their period, therefore it is that they introduced boundaries in Ireland. These curious statements can, of course, only be regarded as authority for the existence, at the time when they were penned, of a belief that a change from a system of collective to a system of restricted enjoyment had occurred at some period or other in Ireland, and of a tradition respecting the date of the change. But it is instructive to find both of them attributing it to the growth of population, and an especial interest attaches to the account given in the ‘Liber Hymnorum’ of the newer distribution of land which was thought to have taken the place of something older. The periodical allotment to each household of a definite portion of bog land, wood land, and arable land wears a strong resemblance to the apportionment of pasture and wood and arable land which still goes on in our day under the communal rules of the Swiss Allmenden (see Laveleye, ‘P. et s. F. P.,’ pp. 268 et seq.), and which is an undoubted legacy from the ancient constitution of certain Swiss Cantons as Teutonic Hundreds.
Property in Land, wherever it has grown out of the gradual dissolution of the ancient cultivating communities, has many characteristics which distinguish it from the form of landed property with which Englishmen and men of English race are best acquainted. The area within which this last form of property is the sole or dominant kind of ownership is now much larger than it was, through its diffusion over all North America, except Mexico, and over all colonies settled for the first time by Englishmen, but our nearly exclusive familiarity with it has led, I think, to our very commonly over-estimating the extent to which it prevails over the world, and even over Western Europe. Its parentage may be traced, not to the decaying authority of the Tribe over the several-ties of the tribesmen, but to the ever-increasing authority of the Chief, first over his own domain and ‘booked’ land, and secondarily over the tribe-lands. The early growth of the power of the Chief is thus of the utmost interest in the history of landed property, and I propose to discuss it at some length in the succeeding Lectures. Meantime, let me say something on the transmutations which Patriarchal Power is observed, as a fact, to undergo in the assemblages of men held together by kinship which are still found making a part of Aryan communities.
The Joint Undivided Family, wherever its beginning is seen in such communities, springs universally out of the Patriarchal Family, a group of natural or adoptive descendants held together by subjection to the eldest living ascendant, father, grandfather, or great-grandfather. Whatever be the formal prescriptions of the law, the head of such a group is always in practice despotic, and he is the object of a respect, if not always of an affection, which is probably seated deeper than any positive institution. But in the more extensive assemblages of kinsmen which constitute the Joint Family the eldest male of the eldest line is never the parent of all the members, and not necessarily the first in age among them. To many of them he is merely a distant relative, and he may possibly be an infant. The sense of patriarchal right does not die out in such groups. Each father or grandfather has more power than anybody else over his wife, children, and descendants; and there is always what may be called a belief that the blood of the collective brotherhood runs more truly and purely in some one line than in any other. Among the Hindoos, the eldest male of this line, if of full mental capacity, is generally placed at the head of the concerns of the joint family; but where the institution survives in any completeness, he is not a Paterfamilias, nor is he owner of the family property, but merely manager of its affairs and administrator of its possessions. If he is not deemed fit for his duties, a ‘worthier’ kinsman is substituted for him by election, and, in fact, the longer the joint family holds together, the more election gains ground at the expense of birth. The head or manager of the Sclavonic House-Communities (which, however, are much more artificial than the Hindoo Joint Families) is undisguisedly an elective representative, and in some of our examples a council of kinsmen belonging to the eldest line of descent takes the place of an individual administrator. The whole process I will describe as the gradual transmutation of the Patriarch into the Chief. The general rule is that the Chief is elected, with a strong preference for the eldest line. Sometimes he is assisted by a definite council of near kinsmen, and sometimes this council takes his place. On the whole, where the body of kinsmen formed on the type of the Joint Family is a purely civil institution, the tendency is towards greater disregard of the claims of blood. But in those states of society in which the brotherhood is not merely a civil confraternity, but a political, militant, self-sustaining group, we can perceive from actually extant examples that a separate set of causes come into operation, and that the Chief, as military leader, sometimes more than regains the privileges which he lost through the decay of the tradition which connected him with the common root of all the kindred. True patriarchal authority, however, revives whenever the process of expansion into a group is interrupted and whenever one of the brotherhood plants himself at a distance from the rest. A Hindoo who severs himself from a Joint Family, which the law as administered by the English tribunals gives him great facilities for doing, acquires much greater power over his family, in our sense of the word, than he had as a member of the larger brotherhood. Similarly, in the developed Joint Family or Village-Community, as the little society becomes more populous, as the village spreads, as the practice of living in separate dwellings extends, as the land rather than the common lineage gets to be regarded as the cement of the brotherhood, each man in his own house practically obtains stringent patriarchal authority over his wife, children, and servants. But then, on the other hand, the separated member of the joint family, or the head of the village household, will himself become the root of a new joint brotherhood, unless his children voluntarily dissolve the family union after his death. Thus all the branches of human society may or may not have been developed from joint families which arose out of an original patriarchal cell; but, wherever the Joint Family is an institution of an Aryan race, we see it springing from such a cell, and, when it dissolves, we see it dissolving into a number of such cells.
Lecture 5. – The Chief and His Order.
Nothing seems to me to have been more clearly shown by recent researches than the necessity of keeping apart the Tribe and the Tribal Chief as distinct sources of positive institutions. The lines of descent are constantly entwined, but each of them is found to run up in the end to an independent origin. If I were to apply this assertion to political history, I should be only repeating much of what has been said by Mr. Freeman in his excellent work on ‘Comparative Politics.’ Confining myself to the history of private institutions, let me observe that the distinction which I have drawn should be carefully borne in mind by those who desire to penetrate to the beginnings of Property in Land. The subject has been greatly obscured by the practice, now brought home to the early writers on feudal law, of systematically passing over or misconstruing all forms of proprietary enjoyment which they could not explain on their own principles; and hitherto the truth has only been directly seen through some of the rules of tenure. It may now, however, be laid down without rashness that Property in Land, as known to communities of the Aryan race, has had a twofold origin. It has arisen partly from the disentanglement of the individual rights of the kindred or tribesmen from the collective rights of the Family or Tribe, and partly from the growth and transmutation of the sovereignty of the Tribal Chief. The phenomena attributable to the double process seem to me easily distinguishable from one another. Both the sovereignty of the Chief and the ownership of land by the Family or Tribe were in most of Western Europe passed through the crucible of feudalism; but the first reappeared in some well-marked characteristics of military or knightly tenures, and the last in the principal rules of non-noble holdings, and among them of Socage, the distinctive tenure of the free farmer. The status of the Chief has thus left us one bequest in the rule of Primogeniture, which, however, has long lost its most ancient form; another in the right to receive certain dues and to enforce certain monopolies; and a third in a specially absolute form of property which was once exclusively enjoyed by the Chief, and after him by the Lord, in the portion of the tribal territory which formed his own domain. On the other hand, several systems of succession after death, and among them the equal division of the land between the children, have sprung out of tribal ownership in various stages of decay; and it has left another set of traces (not quite so widely extended), in a number of minute customary rules which govern tillage and occasionally regulate the distribution of the produce.
The fate of this double set of institutions in England in France appears to me most instructive. I have frequently dwelt in this place on the erroneousness of the vulgar opinion which dates the extreme subdivision of the soil of France from the first French Revolution, and from the sale of the Church lands and of the estates of the emigrant nobility. A writer—I was going to say as commonly read as Arthur Young, but certainly as often mentioned as if he were commonly read—notices this morcellement, on the very eve of the French Revolution, and immediately after it, as the great feature which distinguished France from England. ‘From what we see in England,’ he says, (‘Travels in 1787, ’88, and ’89,’ p. 407) ‘we cannot form an idea of the abundance in France of small properties, that is, little farms belonging to those who cultivate them.’ He estimates that more than a third of the kingdom was occupied by them—a very large proportion, when the extent of Church land in France is taken into account; but recent French investigations have shown reasons for thinking that the true proportion was still larger, and that it was rather growing than diminishing, through that extravagance of the nobles which Court life fostered, and which compelled them to sell their domains to peasants in small parcels. Young clearly saw that this subdivision of the soil was the result of some legal rule; and strongly dissenting from the Revolutionary leaders who wished to carry it farther, he declared that ‘a law ought to be passed to render all division below a certain number of arpents illegal.’
It seems to have very generally escaped notice that the law of equal or nearly equal division after death was the general law of France. The rule of primogeniture was of exceptional application, and was for the most part confined to lands held by knightly tenure; indeed, in the South of France, where the custom of equal division was strengthened by the identical rule of the Roman jurisprudence, the privileges of the eldest son were only secured by calling in the exceptional rules of which the Roman Law gives the benefit to milites (or soldiers on service) when making their wills or regulating their successions, and by laying down that every chevalier, and every noble of higher degree, was a miles within the meaning of the Roman juridical writers. The two systems of succession and the two forms of property lay side by side, and there were men alive quite recently who could remember the bitter animosities caused by their co-existence and antagonism. A very great part of the land held by laymen belonged to the peasantry, and descended according to the rule of equal division, but eldest son after eldest son succeeded to the signory. Yet it was not the rule of primogeniture followed in noble descents which was the true grievance; at most it became a grievance under the influence of the peculiar vein of sentiment introduced by Rousseau. The legacy from tribal sovereignty to signorial privilege, which was really resented, was that which I placed second in order. The right to receive feudal dues and to enforce petty monopolies, now almost extinguished in England by the measures to which the Copyhold Commission has given effect, had ceased long before the end of the last century to be of any considerable importance to the class which was invested with it; but M. de Tocqueville has explained, in his ‘Ancien Régime’ (i. 18), that it made up almost the entire means of living which the majority of the French nobility possessed. A certain number of noblemen, besides their feudal rights, had their terres, or domain, belonging to them in absolute property, and sometimes of enormous extent; and the wealthiest members of this limited class, the grands, who so frequently appear in French Court history, but who, away from the Court, were much the most respected and beloved of their order, formed the counterpart, from the legal point of view, of the English landed proprietary. The rest of the nobles lived mainly, not on rent, but on their feudal dues, and eked out a meagre subsistence by serving the King in arms. The sense of property in the soil was thus not in the lord but in the peasantry; and the peasantry viewed the exercise of signorial rights with a feeling closely akin to that which is inspired by a highly oppressive tax. The condition of sentiment produced by it is even now a political force of some moment in France; and a similar, though a far weaker, repulsion is known to have been caused in this country by the taking of tithes in kind. It is a significant fact that, where the ownership is acknowledged to reside in the superior holder, the exaction of even an extreme rent from the tenants below has very rarely been regarded with the same bitterness of resentment.
The change, therefore, which took place in France at the first Revolution was this: the land-law of the people superseded the land-law of the nobles. In England the converse process has been gone through, and what has occurred is obviously in harmony with much else in English history. The system of the nobles has become in all essential particulars the system of the people. The rule of primogeniture, which once applied only to knightly holdings, came to apply to the great bulk of English tenures, except the Gavelkind of Kent and some others of merely local importance. This part of the change took place at a remote epoch, and its circumstances are involved in much obscurity; and we know little more of it with certainty than that it was rapidly proceeding between the time at which Glanville and the time at which Bracton wrote. Glanville, probably not earlier than the thirty-third year of Henry the Second’s reign, expresses himself as if the general rule of law caused lands held by free cultivators in socage to be divided equally between all the male children at the death of the last owner; Bracton, probably not later than the fifty-second year of Henry the Third, writes as if the rule of primogeniture applied universally to military tenures and generally to socage tenures. But another branch of the process was postponed almost to our own day. Possibly not many Englishmen have recognised with as much clearness as a recent French writer (Doniol, ‘La Révolution Française et la Féodalité) that the transmutation of customary and copyhold into freehold property, which has been proceeding for about forty years under the conduct of the Copyhold and Enclosure Commissioners, is the peaceful and insensible removal of a grievance which did more than any other to bring about the first French Revolution and to prevent the re-establishment of the ancient political order. But long before there was a Copyhold Commission, the great mass of English landed property had assumed certain characteristics which strongly distinguished it from the peasant property of the Continent as it existed before it was affected by the French Codes, and as it is still found in some countries. This last form of proprietorship was very generally fettered by the duty of cultivation in some particular way, and, as a rule, could not be dealt with so as to bar the rights reserved to the children and widow of the owner by the law of succession. The traces of a similar species of ownership, probably once widely diffused, may still be here and there discerned through the customs of particular English manors. I repeat the opinion which I expressed three years ago, that our modern English conception of absolute property in land is really descended from the special proprietorship enjoyed by the Lord, and more anciently by the tribal Chief, in his own Domain. It would be out of place to enter here on a discussion of the changes which seem to me desirable in order to make the soil of England as freely exchangeable as the theory now generally accepted demands; but to the principle of several and absolute property in land I hold this country to be committed. I believe I state the inference suggested by all known legal history when I say that there can be no material advance in civilisation unless landed property is held by groups at least as small as Families; and I again remind you that we are indebted to the peculiarly absolute English form of ownership for such an achievement as the cultivation of the soil of North America.
Before describing to you the new light which the Ancient Laws of Ireland throw on the primitive condition of the institutions of which I have been speaking, let me give you one word of caution as to the statements of modern Irish writers respecting the original relations of the Irish Tribe and of the Irish Tribal Chief. Unhappily the subject has been discussed in the spirit of the later agrarian history of Ireland. On the one hand, some disputants have thought to serve a patriotic purpose by contending that the land of each Tribe belonged absolutely to itself and was its common property, and that the Chief was a mere administrative officer, rewarded for his services in making a fair distribution of the territory among the tribesmen by a rather larger share of its area than the rest, which was allotted to him as his domain. Contrariwise, some writers, not perhaps actuated by much kindliness to the Irish people, have at least suggested that they were always cruelly oppressed by their superiors, and probably by their natural chiefs more than any others. These authors point to the strong evidence of oppression by the Chiefs which the books of the English observers of Ireland contain. Edmund Spenser and Sir John Davis cannot have merely intended to calumniate the Irish native aristocracy when they emphatically declared that the ‘chiefs do most shamefully rackrent their tenants,’ and spoke with vehement indignation of the exactions from which the tribesmen suffered, the ‘coshering,’ and the ‘coin and livery,’ which occur over and over again in their pages. A third school, of a very different order from these, has representatives among the most learned Irishmen of our day. They resent the assertion that the land belonged to the tribe in common as practically imputing to the ancient Irish that utter barbarism to which private property is unknown. They say that traces of ownership jealously guarded are found in all parts of the Brehon laws, and they are on the whole apt to speak of the vassalage to the Chief which these laws attribute to the tribesmen as if it implied something like modern tenancy in the latter and modern ownership in the former. But they say that the relation of landlord and tenant was regulated by careful and kindly provisions, and they ascribe the degradation of the system, like the other evils of Ireland, to English cupidity and ignorance. The Norman nobles who first settled in Ireland are well known to have become in time Chieftains of Irish Tribes; and it is suggested that they were the first to forget their duties to their tenants and to think of nothing but their privileges. Nor is there anything incredible in this last assumption. An English settler in India who buys land there is often reputed a harder landlord than the native zemindars, his neighbours, not because he intends to be harsher (indeed in some things he is usually far more considerate and bountiful), but because he is accustomed to a stricter system and cannot accommodate himself to the loose and irregular play of relations between native landowner and native tenant.
I cannot wholly concur in any one of these theories concerning Chief and Tribe. Each seems to me to contain a portion of truth, but not the whole. Let me first say that the whole land-system shadowed forth in the Brehon laws does seem to me to have for its basis the primary ownership of the tribe-land by the Tribe. It is also true that the Chief appears to exercise certain administrative duties in respect of this land, and that he has a specific portion of the tribeland allotted to him, in the vicinity of his residence or stronghold, for the maintenance of his household and relatives. But this is not all. As we see the system through the law, it is not stationary, but shifting, developing, disintegrating, re-combining. Even according to the texts apparently oldest, much of the tribal territory appears to have been permanently alienated to sub-tribes, families, or dependent chiefs; and the glosses and commentaries show that, before they were written, this process had gone very far indeed. Whatever, again, may have been the original dignity and authority of the Chief, they are plainly growing, not merely through the introduction of alien principles and ideas, but from natural causes, more or less operative all over Europe. The general character of these causes is very much the same as in the Germanic countries. The power of the Chief grows first through the process which is called elsewhere ‘commendation,’ the process by which the free tribesman becomes ‘his man,’ and remains in a state of dependence having various degrees. It farther grows from his increasing authority over the waste-lands of the tribal territory and from the servile or semi-servile colonies he plants there; and lastly, it augments from the material strength which he acquires through the numbers of his immediate retainers and associates, most of whom stand to him in more or less servile relations. But the Brehon law tells us much that is novel and surprising concerning the particular course of these changes and their nature in detail. It furnishes us with some wholly new ideas concerning the passage of society from inchoate to complete feudalism, and helps us to complete the account of it derived from Germanic sources. In this, as it seems to me, the greatest part of its interest consists.
With the Chieftaincy of the Tribe the early history of modern Aristocracy and modern Kingship begins. These two great institutions had, in fact, at first the same history, and the Western world long continued to bear the marks of their original identity. The Manor with its Tenemental lands held by the free tenants of the Lord, and with its Domain which was in immediate dependence on him, was the type of all the feudal sovereignties in their complete form, whether the ruler acknowledged a superior above him or whether he at most admitted one in the Pope, or the Emperor, or God himself. In every County, or Dukedom, or Kingdom there were great tenants holding directly of its head and on some sort of parity with him; and there was a Domain under his more immediate government and at his immediate disposal. There is no obscurer and more difficult subject than the origin of the class whose power was the keystone of all these political and proprietary constructions, and none on which the scantiest contributions to our knowledge are more welcome.
There is one view of the original condition of privileged classes which, though held by learned men, has been a good deal weakened of late by German research, and seems to me still farther shaken by portions of the Brehon law. This is the impression that they always constituted, as they practically do now, a distinct class or section of the community, each member of the class standing in a closer relation to the other members than to the rest of the national or tribal society to which all belong. It cannot be doubted that the earliest modern aristocracies have as a fact, when they are first discerned, this particular aspect. Mr. Freeman (‘Norman Conquest,’ i. 88) says that the ‘difference between eorl and ceorl is a primary fact from which we start.’ Tacitus plainly distinguished the noble from the non-noble freeman in the Germanic societies which he observed; and Cæsar, as I stated in another Lecture, divides all the Continental Celtic tribes into the Equites and the Plebs. We can understand that a spectator looking at a set of tribal communities from the outside would naturally class together all men visibly exalted above the rest; but nevertheless this is not quite the appearance which early Germanic society wears in the eyes of enquirers who follow the method of Von Maurer and Landau. Each Chief or Lord appears to them to have been noble less with reference to other noblemen than with reference to the other free tribesmen comprised in the same group with himself. Nobility has many diverse origins; but its chief source seems to have been the respect of co-villagers or assemblages of kinsmen for the line of descent in which the purest blood of each little society was believed to be preserved. Similarly, the Brehon law suggests that the Irish Chiefs were not the class by themselves which the corresponding order among the Continental Celts appeared to Cæsar to be, but were necessarily the heads of separate groups composed of their kindred or of their vassals. ‘Every chief,’ says the text which I quoted before, ‘rules over his land, whether it be great or whether it be small.’ And while the Irish law describes the way (as I shall point out) in which a common freeman can become a chief, it also shows that the position to which he attains is the presidency of a group of dependants. Nevertheless the persons thus elevated undoubtedly tend to become, from various causes, a class by themselves and a special section of the general community; and it is very probable that the tendency was at work from the earliest times. It is farther to be remarked that some aristocracies were really a section of the community from the very first. This structure of society is produced where one entire tribal group conquers or imposes its supremacy upon other tribal groups also remaining entire, or where an original body of tribesmen, villagers, or citizens, gradually gathers round itself a miscellaneous assemblage of protected dependants. There are many known instances of both processes, and the particular relation of tribal groups which the former implies was certainly not unknown to the Celtic societies. Among the Scottish Highlanders some entire septs or clans are stated to have been enslaved to others; and on the very threshold of Irish history we meet with a distinction between free and rent-paying tribes which may possibly imply the same kind of superiority and subordination.
The circumstance of greatest novelty in the position of the Chief which the Brehon law appears to me to bring out is this: Whatever else a Chief is, he is before all things a rich man; not, however, rich, as popular associations would lead us to anticipate, in land, but in live stock—in flocks and herds, in sheep, and before all things in oxen. Here let me interpose the remark, that the opposition commonly set up between birth and wealth, and particularly wealth other than landed property, is entirely modern. In French literature, so far as my knowledge extends, it first appears when the riches of the financial officers of the French monarchy—the Superintendents and Farmers-General—begin to attract attention. With us it seems to be exclusively the result of the great extension and productiveness of industrial undertakings on the largest scale. But the heroes of the Homeric poems are not only valiant but wealthy (Odyss. xiv. 96-106); the warriors of the Nibelungen-Lied are not only noble but rich. In the later Greek literature we find pride of birth identified with pride in seven wealthy ancestors in succession, ἕπτα πάπποι πλούσιοι; and you are well aware how rapidly and completely the aristocracy of wealth assimilated itself in the Roman State to the aristocracy of blood. Passing to the Irish Chief, we find the tract called the ‘Cain-Aigillne’ laying down (p. 279) that ‘the head of every tribe should be the man of the tribe who is the most experienced, the most noble, the most wealthy, the most learned, the most truly popular, the most powerful to oppose, the most steadfast to sue for profits and to be sued for losses.’ There are many other passages to the same effect; and on closely examining the system (as I propose to do presently) we can perceive that personal wealth was the principal condition of the Chief’s maintaining his position and authority.
But while the Brehon laws suggest that the possession of personal wealth is a condition of the maintenance of chieftainship, they show with much distinctness that through the acquisition of such wealth the road was always open to chieftainship. We are not altogether without knowledge that in some European societies the humble freeman might be raised by wealth to the position which afterwards became modern nobility. One fact, among the very few which are tolerably well ascertained respecting the specific origin of particular modern aristocracies is, that a portion of the Danish nobility were originally peasants; and there are in the early English laws some traces of a process by which a Ceorl might become a Thane. These might be facts standing by themselves, and undoubtedly there is strong reason to suspect that the commencements of aristocracy were multifold; but the Brehon tracts point out in several places, with legal minuteness, the mode in which a peasant freeman in ancient Ireland could become a chief. There are few personages of greater interest spoken of in these laws than the Bo-Aire, literally the ‘cow-nobleman.’ He is, to begin with, simply a peasant who has grown rich in cattle, probably through obtaining the use of large portions of tribe-land. The true nobles, or Aires—a word striking from its consonance with words of similar meaning in the Teutonic languages—are divided, though we can scarcely believe the classification to correspond with an universal fact, into seven grades. Each grade is distinguished from the others by the amount of wealth possessed by the Chief belonging to it, by the weight attached to his evidence, by his power of binding his tribe by contracts (literally of ‘knotting’), by the dues which he receives in kind from his vassals according to a system to be presently described, and by his Honor-Price, or special damages incurred by injuring him. At the bottom of the scale is the chief or noble called the Aire-desa; and the Brehon law provides that when the Bo-Aire has acquired twice the wealth of an Aire-desa, and has held it for a certain number of generations, he becomes an Airedesa himself. The advantage secured to wealth does not, you see, exclude respect for birth, but works into it. ‘He is an inferior chief,’ says the ‘Senchus Mor,’ ‘whose father was not a chief;’ and there are many other strong assertions of the reverence due to inherited rank. The primary view of chieftainship is evidently that it springs from purity or dignity of blood, but noble birth is regarded as naturally associated with wealth, and he who becomes rich gradually climbs to a position indistinguishable from that which he would have occupied if he had been nobly born. What is thus new in the system is the clear account of nobility as a status, having its origin in the organic structure of ancient society, but nevertheless in practice having perpetually fresh beginnings.
The enormous importance which belongs to wealth and specially to wealth in cattle, in the early Aryan society reflected by the Brehon tracts, helps, I think, to clear up one great difficulty which meets us on the threshold of an enquiry into the origin of aristocracies. I suppose that the popular theory on the subject of the privileged class in modern communities is that it was originally indebted for its status, if not for its power or influence, to kingly favour. An Englishman once questioned the Emperor Paul of Russia on the position of the Russian nobility. ‘The only man who is noble in my dominions,’ said the Czar, ‘is the man to whom I speak, for the time that I am speaking to him.’ I merely take these words as the strongest possible statement of the view to which I am referring; but they were used by a monarch with a disturbed brain, whose authority had contracted something of an Oriental character from its long subordination to Tartar power, and they were never absolutely true even of Russia. Among ourselves, however, the favourite assumption seems certainly to be, however slight may be the practical consequences we draw from it, that all aristocratic privilege had its origin in kingly grace; and this appears, on the whole, to be the theory of English law. But the institutions of many parts of the Continent long retained the traces of a different set of ideas, and these were found where kingly power was actually much greater than in England. The French Noblesse, before the Revolution, would as a body have resented the assertion that they were a creation of the King, and the Kings of France more than once admitted that they were only the most exalted members of a class to which their own nobility belonged.
Kings have everywhere nowadays, and in many countries have had for centuries, a monopoly of the power of ennobling. This road to nobility has been so long trodden, that men in general have almost forgotten there ever was another route. Yet historical scholars have long known that nobility conferred by royal grant was, in one sense, a modern institution, though they have not succeeded in completely explaining how it came to supplant or dwarf the institution upon which it was engrafted. There seems to be no doubt that the first aristocracy springing from kingly favour consisted of the Comitatus, or Companions of the King. Although there is a good deal of evidence that the class was at first considered in some way servile, it gradually became in some countries the type of all nobility. A few tolerably familiar facts may serve to remind us how remarkable has been the fortune of the royal households all over Western Europe. The Mayor of the Frankish Palace became King of the Franks. The Chamberlain of the Romano-German Emperors is now the German Emperor. The blood of the Steward of Scotland runs in the veins of the Kings of England. The Constables of France repeatedly shook or saved the French throne. Among ourselves the great officers of the Royal Council and Household still take precedence either of all Peers or of all Peers of their own degree. Whence, then, came this great exaltation of the Mayor or Count of the Palace, of the great Seneschal or Steward, of the High Chancellor, the Great Chamberlain, and High Constable—titles which, when they do not mark an office originally clerical, point to an occupation which must at first have been menial?
It seems certain that the Household sprang from very humble beginnings. Tacitus describes the companions of the Germanic chief as living with him in his house and supported by his bounty. Mr. Stubbs when stating (‘Constitutional History,’ p. 150) that ‘the gesiths of an (English) king were his guard and private council,’ observes that the ‘free household servants of a ceorl are also in a certain sense his gesiths.’ The Companions of the King appear also in the Irish legal literature, but they are not noble, and they are associated with the king’s body-guard, which is essentially servile. The King of Erin, though he never existed (strictly speaking), save for short intervals, yet always, so to speak tended to exist, and the Crith Gablach, a Brehon tract of which a translation is given at the end of Sullivan’s edition of O’Curry’s Lectures, contains a picture of his palace and state. The edifice intended to be described is apparently very much the same as the great Icelandic house of which Mr. Dasent, in the ‘Story of Burnt Njal,’ has attempted to give a drawing from the descriptions found in Norse literature. In it the King feasts his guests, from kings and king’s sons to a ghastly company of prisoners in fetters, the forfeited hostages of subject-chiefs or sub-septs who have broken their engagements. The Companions are there also, and they are stated to consist of his privileged tenantry and of his bodyguard, which is composed of men whom he has delivered from death, jail, or servitude, never (a significant exception) of men whom he has saved on the battle-field. I am afraid that the picture of Irish society supplied by the Crith Gablach must throughout be regarded as to a great extent ideal or theoretical; at any rate, there is much testimony from English visitors to Ireland that many considerable Irish Chiefs were much more humbly furnished out than the King of Erin at Tara. Yet it is very likely that they all had Companions attending them, and I suspect that the obligation of maintaining a little court had much to do with that strange privilege which in later times had a deplorable history, the right of the Chief to go with a following to the dwellings of his tenants and there be feasted at the tenant’s expense. That even petty Chiefs of the Scottish Highlands had a retinue of the same character is known to all who can recall that immortal picture of Celtic society which for the first time brought it home to men who were nearly our contemporaries that ancient Celtic life and manners had existed almost down to their days—the novel of ‘Waverley.’
It seems extremely probable that, in a particular stage of society, this personal service to the Chief or King was everywhere rendered in expectation of reward in the shape of a gift of land. The Companions of the Teutonic kings, in Continental Europe, shared largely in the Benefices—grants of Roman provincial land fully peopled and stocked. In ancient England the same class are believed to have been the largest grantees of public land next to the Church; and doubtless we have here part of the secret of the mysterious change by which a new nobility of Thanes, deriving dignity and authority from the King, absorbed the older nobility of Eorls. But we are a little apt to forget the plentifulness of land in countries lying beyond the northern and western limits of the Roman Empire, or just within them. Mr. Thorold Rogers, writing of a period relatively much later, and founding his opinion on the extant evidence of returns from manor-lands, speaks of land as the ‘cheapest commodity of the Middle Ages.’ The practical difficulty was not to obtain land, but the instruments for making it productive; and hence, in a society older relatively than any Teutonic society of which we have any distinct knowledge, that very society which the Brehon tracts enable us to understand, it may very well have been that the object of suit at court was much less to obtain land than to obtain cattle. The Chief, as I have already said, was before all things rich in flocks and herds. He was military leader, and a great part of his wealth must have been spoil of war, but in his civil capacity he multiplied his kine through his growing power of appropriating the waste for pasture, and through a system of dispersing his herds among the tribesmen, which will be described in the next Lecture. The Companion who followed him to the foray, or was ready to do so, cannot but have been enriched by his bounty; and thus, if already noble, he became greater; if he was not noble, the way to nobility lay through wealth. The passage which I am about to read to you may serve to illustrate what probably took place, though there is nothing except common humanity to connect the tribes of whose customs it speaks with the primitive Teutons and Celts. The Rev. H. Dugmore, in a most interesting volume, called a ‘Compendium of Kafir Laws and Customs,’ and published at the Wesleyan Missionary Press, Mount Coke, British Kaffraria, writes thus of much the most advanced of the South African native races, the Kafirs or Zulus (p. 27): ‘As cattle constitute the sole wealth of the people, so they are their only medium of such transactions as involve exchange, payment, or reward. The retainers of a chief serve him for cattle; nor is it expected that he could maintain his influence, or indeed secure any number of followers, if unable to provide them with what at once constitutes their money, food, and clothing. He requires, then, a constant fund from which to satisfy his dependants; and the amount of the fund required may be judged of from the character of the demand made upon him. His retinue, court, or whatever it is to be called, consists of men from all parts of the tribe, the young, the clever, and the brave, who come to do court service for a time, that they may obtain cattle to furnish them with the means of procuring wives, arms, or other objects of desire. On obtaining these they return to their homes and give place to others. Thus the immediate retinue of a chief is continually changing, and constitutes a permanent drain on his resources.’ Mr. Dugmore goes on to state that the sources of the chief’s wealth are the inherited cattle of his father, offerings made to him on the ceremony of his circumcision, benevolences levied from his tribe, fines and confiscations, and the results of predatory excursions.
The remarkable part played by kine in ancient Irish society will, I hope, be made more intelligible in the next Lecture. Meantime, let me observe that the two Celtic societies included in these islands which longest retained their ancient usages were both notoriously given to the plunder of cattle. Lord Macaulay, in speaking of Irish cattle-stealing, sometimes, I must own, seems to me to express himself as if he thought the practice attributable to some native vice of Irish character; but no doubt it was what Mr. Tylor has taught us to call a survival, an ancient and inveterate habit, which in this case continued through the misfortune which denied to Ireland the great condition of modern legal ideas, a strong central government. The very same practice, among the Celts of the Scottish Highlands and the rude Germanic population of the Lowland Border, has almost been invested by one man’s genius with the dignity of a virtue. Again, turning to ‘Waverley,’ I suppose there is no truer representative of the primitive Celtic chief than Donald Bean Lean, who drives the cattle of Tully Veolan, and employs a soothsayer to predict the number of beeves which are likely to come in his way. He is a far more genuine ‘survival’ than Fergus McIvor, who all but deserts his cause for a disappointment about an earldom.
It has been pointed out that the status of the King’s Companions was at first in some way servile. Whenever legal expression has to be given to the relations of the Comitatus to the Teutonic kings, the portions of the Roman law selected are uniformly those which declare the semi-servile relation of the Client or Freedman to his Patron. The Brehon law permits us to take the same view of the corresponding class in Celtic societies. Several texts indicate that a Chief of high degree is always expected to surround himself with unfree dependants; and you will recollect that the retinue of the King of Erin was to consist not only of free tribesmen but of a bodyguard of men bound to him by servile obligations. So far as it goes, I quite agree with the explanation which Mr. Freeman has given of the original connection between servile status and that nobility with which the primitive nobility of birth has become mixed up and confounded. ‘The lowly clientage,’ he says, ‘of the Roman Patrician and the noble following of the Hellenic and Teutonic leader may really come from the same source, and may both alike be parts of the same primeval heritage.’ (‘Comparative Politics,’ p. 261.) But perhaps we may permit ourselves to go a step beyond this account. The Comitatus or Companions of the Chief, even when they were freemen, were not necessarily or ordinarily his near kindred. Their dependence on him, carrying with it friendship and affection, would in modern societies place them in a position well understood, and on something like an equality with him; but in the beginning of things one man was always the kinsman, the slave, or the enemy of another, and mere friendship and affection would, by themselves, create no tie between man and man. In order that they might have any reality, they would have to be considered as establishing one of the relations known to that stage of thought. Between equals this would be assumed or fictitious kinship. But between the Chief who embodied purity of tribal descent and his associates, it would have more or less to follow the pattern of the slave’s dependence on his master, and, where the Companion was not actually the Chief’s slave, the bond which connected them would very probably be adapted to the more honourable model furnished by the relation between ex-slave and ex-master.
Lecture 6. – The Chief and the Land.
The Brehon law-tracts strongly suggest that, among the things which we in modern times have most forgotten, is the importance of horned cattle, not merely in the infancy of society, but at a period when it had made some considerable advance towards maturity. It is scarcely possible to turn over a page without finding some allusion to beeves, to bulls, cows, heifers, and calves. Horses appear, sheep, swine, and dogs; and bees, the producers of the greatest of primitive luxuries, have a place assigned to them as an article of property which has something corresponding to it in old Roman law. But the animals much the most frequently mentioned are kine. There are some few facts both of etymology and of legal classification which point to the former importance of oxen. Capitale—kine reckoned by the head—cattle—has given birth to one of the most famous terms of law and to one of the most famous terms of political economy, Chattels and Capital. Pecunia was probably the word for money which was employed by the largest part of mankind for the longest time together. But oxen, though they have furnished a modern synonym for personal property, were not, I need scarcely say, classed in the lower order of commodities in all ancient systems of law. The primitive Roman law placed them in the highest class, and joined them with land and slaves as items of the Res Mancipi. As in several other instances, the legal dignity of this description of property among the Romans appears to answer to its religious dignity among the Hindoos. Kine, which the most ancient Sanscrit literature shows to have been eaten as food, became at some unknown period sacred, and their flesh forbidden; and ultimately two of the chief ‘Things which required a Mancipation’ at Rome, oxen and landed property, had their counterpart in the sacred bull of Siva and the sacred land of India.
The subject has possibly been obscured by an impression that horned cattle were only of preeminent importance to mankind in that pastoral stage of society which has been the theme of so much not altogether profitable speculation. The actual evidence seems to show that their greatest value was obtained when groups of men settled on spaces of land and betook themselves to the cultivation of food-grains. It is very possible that kine were at first exclusively valued for their flesh and milk, but it is clear that in very early times a distinct special importance belonged to them as the instrument or medium of exchange. In the Homeric literature, they are certainly a measure of value; there seems no reason to doubt the traditional story that the earliest coined money known at Rome was stamped with the figure of an ox; and at all events the connection between ‘pecus’ and ‘pecunia’ is unmistakeable. Part, but by no means all, the prominence given by the Brehon lawyers to horned cattle arises certainly from their usefulness in exchange. Throughout the Brehon tracts fines, dues, rents, and returns are calculated in live-stock, not exclusively in kine, but nearly so. Two standards of value are constantly referred to, ‘sed’ and ‘cumhal.’ ‘Cumhal’ is said to have originally meant a female slave, just as ‘ancilla’ in mediæval Latinity sometimes means the price of a slave-girl; but ‘sed’ is plainly used for an amount or quantity of live stock, probably to some small extent variable. The next stage, however, in the history of cattle is that at which their service to mankind is greatest. They are now valued chiefly, in some communities exclusively, for their use in tillage, for their labour and their manure. Their place has been taken very generally in Western Europe by horses as beasts of plough, but the change was even there both gradual and comparatively modern; and there are still large portions of the world where the horse is exclusively employed, as it seems everywhere to have been at one time, for war, for pleasure, or the chase. Oxen were thus almost the sole representatives of what a Political Economist would now call Capital applied to land. I think it probable that the economical causes which led to the disuse of oxen as a medium of exchange led also to the change in their legal position which we find to have taken place at Rome and in India. The sanctification of the ox among the Hindoos, rendering his flesh unlawful as food, must certainly have been connected with the desire to preserve him for tillage, and his elevation to a place among the Res Mancipi may well have been supposed to have the same tendency, since it made his alienation extremely difficult, and must have greatly embarrassed his employment in exchange. At this point the history of horned cattle becomes unhappily mixed up with that of large portions of mankind. The same causes which we perceive altering the position of the ox and turning him into an animal partially adscriptus glebæ, undoubtedly produced also a great extension of slavery. The plentifulness of land, even in what are considered old countries, down to comparatively recent times, and the scarcity of capital even in its rudest forms, seem to me to be placed in the clearest light by Mr. Thorold Rogers’s deeply instructive volumes on Agriculture and Prices during the Middle Ages; and much in history which has been only partially intelligible is explained by them. The enormous importation of slaves into the central territories of the Roman Commonwealth, and the wholesale degradation of the free cultivating communities of Western Europe into assemblages of villeins, seem to be expedients of the same nature as restrictions on the alienation of the ox and on its consumption for food, and to have been alike suggested by the same imperious necessity of procuring and preserving instruments for the cultivation of land.
The importance of horned cattle to men in a particular state of society must, as it seems to me, be carefully borne in mind if we are to understand one of the most remarkable parts of the ancient Irish law which relates to the practice of ‘giving stock.’ I stated before that, though I did not draw the same inferences from the fact, I agreed with the writers who think that the land-system of ancient Ireland was theoretically based on the division of the tribe-lands among the free tribesmen. But I also said that in my opinion the true difficulty of those days was not to obtain land but to obtain the means of cultivating it. The want of capital, taken in its original sense, was the necessity which pressed on the small holder of land and reduced him occasionally to the sorest straits. On the other hand, the great owners of cattle were the various Chiefs, whose primitive superiority to the other tribesmen in this respect was probably owing to their natural functions as military leaders of the tribe. The Brehon law suggests to me that the Chiefs too were pressed by a difficulty of their own, that of finding sufficient pasturage for their herds. Doubtless their power over the waste-lands of the particular group over which they happened to preside was always growing, but the most fruitful portions of the tribal territory would probably be those which the free tribesmen occupied. The fact that the wealth of the Chiefs in cattle was out of proportion to their power of dealing with the tribal lands, and the fact that the tribesmen were every now and then severely pressed by the necessity of procuring the means of tillage, appear to me to supply the best explanation of the system of giving and receiving stock, to which two sub-tracts of the Senchus Mor are devoted, the Cain-Saerrath and the Cain-Aigillne, the Law of Saer-stock tenure and the Law of Daer-stock tenure.
The interest of these two compendia is very great. In the first place, they go far to show us how it was that the power of the tribal Chief increased, not merely over his servile dependants, but over the free tribesmen among whom he had been at first only primus inter pares. In the next, they give us, from the authentic records of the ancient usages of one particular society, a perfectly novel example of a proceeding by which feudal vassalage was created. I need scarcely dwell on the historical importance of the various agencies by which the relation of Lord and Vassal was first established. It was by them that the Western Europe of the Roman despotism was changed into the Western Europe of the feudal sovereignties. Nothing can be more strikingly unlike in external aspect than the states of society which are discerned on either side of the stormy interval filled with the movement and subsidence of the barbarian invasions. Just before it is reached, we see a large part of mankind arranged, so to speak, on one vast level surface dominated in every part by the overshadowing authority of the Roman Emperor. On this they lie as so many equal units, connected together by no institutions which are not assumed to be the creation of positive Roman law; and between them and their sovereign there is nothing but a host of functionaries who are his servants. When feudal Europe has been constituted, all this is changed. Everybody has become the subordinate of somebody else higher than himself and yet exalted above him by no great distance. If I may again employ an image used by me before, society has taken the form of a pyramid or cone. The great multitude of cultivators is at its base; and then it mounts up through ever-narrowing sections till it approaches an apex, not always visible, but always supposed to be discoverable, in the Emperor, or the Pope, or God Almighty. There is strong reason to believe that neither picture contains all the actual detail, and that neither the theory of the Roman lawyers on one side nor the theory of the feudal lawyers on the other accounts for or takes notice of a number of customs and institutions which had a practical existence in their day. Either theory was, however, founded upon the most striking facts of the epoch at which it was framed.
We know something, though not very much, of the formal instrumentalities by which the later set of facts became so extremely dissimilar to the earlier. Mr. Stubbs (‘Constitutional History,’ i. 252) has thus summarised the most modern views on the subject. Feudalism ‘had grown up from two great sources, the Benefice and the practice of Commendation. The beneficiary system originated partly in gifts of land made by the kings out of their own estates to their kinsmen and servants, with a special undertaking to be faithful, partly in the surrender by landowners of their estates to churches or powerful men, to be received back again and held by them as tenants for rent or service. By the latter arrangement the weaker man obtained the protection of the stronger, and he who felt himself insecure placed his title under the defence of the Church. By the practice of Commendation, on the other hand, the inferior put himself under the personal care of a lord, but without altering his title or divesting himself of his right to his estate; he became a vassal and did homage.’ Commendation, in particular, went on all over Western Europe with singular universality of operation and singular uniformity of result, and it helped to transform the ancient structure of Teutonic society no less than the institutions of the Roman Provincials. Yet there is considerable mystery about men’s motives for resorting to so onerous a proceeding, and the statements of nearly all writers on the subject are general and chiefly conjectural. Perhaps the most precise assertion which we have been hitherto able to hazard as to the reasons of so large a part of the world for voluntarily placing themselves in a condition of personal subordination is, that they must have been connected with the system of civil and criminal responsibility which prevailed in those times. Families—real or artificial—natural or formed by agreement—were responsible for the offences and even for the civil liabilities of their members; but corporate responsibility must have been replaced, conveniently for all persons concerned, by the responsibility of a single lord, who could prevent injury and pay compensation for it, and whose testimony, in compurgation and other legal proceedings, had a weight often assigned to it exceeding that of several inferior persons combined. More generally, but with at least equal plausibility, we can lay down that the general disorder of the world had much to do with the growth of the new institutions; and that a little society compactly united under a feudal lord was greatly stronger for defence or attack than any body of kinsmen or co-villagers and than any assemblage of voluntary confederates. It would be absurd, however, to suppose that we have materials for a confident opinion as to men’s motives for submitting themselves to a change which was probably recommended to them or forced on them by very various circumstances in different countries and in relatively different stages of society.
I do not wish to generalise unduly from the new information furnished by the Brehon law, but there has long been a suspicion (I cannot call it more) among learned men that Celtic usages would throw some light on Commendation, and, at any rate, amid the dearth of our materials, any addition to them from an authentic source is of value. Let me again state the impression I have formed of the ancient Irish land-system, in the stage at which it is revealed to us by the Brehon tracts. The land of the tribe, whether cultivated or waste, belongs to the tribe, and this is true, whether the tribe be a joint-family of kinsmen or a larger and more artificial assemblage. Such theoretically is the principle, if the traditional view of the primitive state of things may be called a theory. But much of the territory of the larger tribes has been permanently assigned to Chiefly families or to smaller sub-divisions of tribesmen, and the land of the smaller sub-divisions tends ever to become divided among their members, subject to certain reserved rights of the collective brotherhood. Every considerable tribe, and almost every smaller body of men contained in it, is under a Chief, whether he be one of the many tribal rulers whom the Irish records call Kings, or whether he be one of those heads of joint-families whom the Anglo-Irish lawyers at a later date called the Capita Cognationum. But he is not owner of the tribal land. His own land he may have, consisting of private estate or of official domain, or of both, and over the general tribal land he has a general administrative authority, which is ever growing greater over that portion of it which is unappropriated waste. He is meanwhile the military leader of his tribesmen, and, probably in that capacity, he has acquired great wealth in cattle. It has somehow become of great importance to him to place out portions of his herds among the tribesmen, and they on their part occasionally find themselves through stress of circumstance in pressing need of cattle for employment in tillage. Thus the Chiefs appear in the Brehon law as perpetually ‘giving stock,’ and the tribesmen as receiving it. The remarkable thing is, that out of this practice grew, not only the familiar incidents of ownership, such as the right to rent and the liability to pay it, together with some other incidents less pleasantly familiar to the student of Irish history, but, above and besides these, nearly all the well-known incidents of feudal tenure. It is by taking stock that the free Irish tribesman becomes the Ceile or Kyle, the vassal or man of his Chief, owing him not only rent but service and homage. The exact effects of ‘commendation’ are thus produced, and the interesting circumstance is that they are produced from a simple and intelligible motive. The transaction between Chief and Vassal is very burdensome to the latter, but the necessity which leads to it is pressing, and the force of this necessity would be greater the more primitive the society in which it arose, and the more recent its settlement on its lands. All this is especially instructive, because there is no reason whatever to suppose that Beneficiary grants and Commendation arose suddenly in the world at the disruption of the Roman Empire. They were probably, in some form or other, deeply seated among the rudimentary usages of all Aryan societies.
The new position which the tribesman assumed through accepting stock from a Chief varied according to the quantity of stock he received. If he took much stock he sank to a much lower status than if he had taken little. On this difference in the quantity accepted there turns the difference between the two great classes of Irish tenantry, the Saer and Daer tenants, between whose status and that of the free and higher base tenants of an English manor there is a resemblance not to be mistaken. The Saer-stock tenant, distinguished by the limited amount of stock which he received from the Chief, remained a freeman and retained his tribal rights in their integrity. The normal period of his tenancy was seven years, and at the end of it he became entitled to the cattle which had been in his possession. Meantime he had the advantage of employing them in tillage, and the Chief on his part received the ‘growth and increase and milk,’ the first two words implying the young and the manure. So far there is nothing very remarkable in the arrangement, but it is expressly laid down that besides this it entitled the Chief to receive homage and manual labour; manual labour is explained to mean the service of the vassal in reaping the Chief’s harvest and in assisting to build his castle or fort, and it is stated that, in lieu of manual labour, the vassal might be required to follow his Chief to the wars. Any large addition to the stock deposited with the Saer-stock tenant, or an unusual quantity accepted in the first instance by the tribesman, created the relation between vassal and chief called Daer-stock tenancy. The Daer-stock tenant had unquestionably parted with some portion of his freedom, and his duties are invariably referred to as very onerous. The stock given to him by the Chief consisted of two portions, of which one was proportionate to the rank of the recipient, the other to the rent in kind to which the tenant became liable. The technical standard of the first was the tenant’s ‘honor-price,’ the fine or damage which was payable for injuring him, and which in these ancient systems of law varies with the dignity of the person injured. The relation between the second portion of stock and the rent is elaborately defined in the Brehon law: ‘The proportionate stock of a calf of the value of a sack with its accompaniments, and refections for three persons in the summer, and work for three days, is three “samhaisc” heifers or their value’ (‘Cain-Aigillne,’ p. 25); or, in other words, that the Chief may entitle himself to the calf, the refections, and the labour, he must deposit three heifers with the tenant. ‘The proportionate stock of a “dartadh” heifer with its accompaniment, is twelve “seds,” ’ explained to mean twelve ‘samhaisc’ heifers, or six cows. And so on in many places. The rent in kind, or food-rent, which was thus proportioned to the stock received, unquestionably developed in time into a rent payable in respect of the tenant’s land; but it is certainly a curious and unexpected fact that the rent of the class which is believed to have embraced a very large part of the ancient Irish tenantry did not, in its earliest form, correspond in any way to the value of the tenant’s land, but solely to the value of the Chief’s property deposited with the tenant. But the most burdensome obligation imposed on the Daer-stock tenant is that which, in the quotation just made by me, is expressed by the word ‘refections.’ Beside the rent in kind and the feudal services, the Chief who had given stock was entitled to come, with a company of a certain number, and feast at the Dear-stock tenant’s house, at particular periods, for a fixed number of days. This ‘right of refection,’ and liability to it, are among the most distinctive features of ancient Irish custom, and their origin is probably to be explained by the circumstance that the Irish Chief, though far more privileged than his tenants, was little better housed and almost as poorly furnished out, and could not have managed to consume at home the provisions to which his gifts of stock entitled him. But the practice had a most unhappy history. The Brehon law defines it and limits it narrowly on all sides; but its inconvenience and its tendency to degenerate into an abuse are manifest, and from it are doubtless descended those oppressions which revolted such English observers of Ireland as Spenser and Davis, the ‘coin and livery,’ and the ‘cosherings’ of the Irish Chiefs, which they denounce with such indignant emphasis. Perhaps there was no Irish usage which seemed to Englishmen so amply to justify that which as a whole I believe to have been a great mistake and a great wrong, the entire judicial or legislative abolition of Irish customs. The precautions by which the Brehon lawyers could fence it in were not probably at any time very effectual, but, as I before stated, they did what they could; and, moreover, as defined by them, the relation out of which Daer-stock tenancy and its peculiar obligations arose was not perpetual. After food-rent and service had been rendered for seven years, if the Chief died, the tenant became entitled to the stock; while, on the other hand, if the tenant died, his heirs were partly, though not wholly, relieved from their obligation. At the same time it is very probable that Daer-stock tenancy, which must have begun in the necessities of the tenant, was often from the same cause rendered practically permanent.
It has frequently been conjectured that certain incidents of feudal tenure pointed back to some such system as the Brehon tracts describe to us. The Heriot of English Copyhold tenure, the ‘best beast’ taken by the Lord on the death of a base tenant, has been explained as an acknowledgment of the Lord’s ownership of the cattle with which he anciently stocked the land of his villeins, just as the Heriot of the military tenant is believed to have had its origin in a deposit of arms. Adam Smith recognised the great antiquity of the Metayer tenancy, still widely spread over the Continent, of which one variety was in his day found in Scotland under the name of ‘steelbow.’ I am not at all surprised that, in one of the Prefaces to the official translation of the Brehon laws, a comparison should be instituted between this tenancy and the Saer and Daer-stock tenancy of ancient Irish law. The outward resemblance is considerable, and the history of Metayer tenancy is so obscure that I certainly cannot undertake to say that practices answering to those I have described had not in some countries something to do with its primitive form. But the distinctions between the ancient and the modern tenancies are more important than the analogies. In Metayer tenancy a landlord supplies the land and stock, a tenant the labour only and the skill; but in Saer and Daer-stock tenancy the land belonged to the tenant. Again, the effect of the ancient Irish relation was to produce, not merely a contractual liability, but a status. The tenant had his social and tribal position distinctly altered by accepting stock. Further, the acceptance of stock was not always voluntary. A tribesman, in one stage of Irish custom at all events, was bound to receive stock from his own ‘King,’ or, in other words, from the Chief of his tribe in its largest extension; and everywhere the Brehon laws seem to me to speak of the acceptance of stock as a hard necessity. Lastly, the Tribe to which the intending tenant belonged had in some cases a veto on his adoption of the new position, which was clearly regarded as a proceeding invasive of tribal rights and calculated to enfeeble them. In order to give the Tribe the opportunity of interposing whenever it had legal power to do so, the acceptance of stock had to be open and public, and the consequences of effecting it surreptitiously are elaborately set forth by the law. It seems to me clear that it was discouraged by the current popular morality. One of those rules, frequent in ancient bodies of law, which are rather moral precepts than juridical provisions, declares that ‘no man should leave a rent on his land which he did not find there.’
The system which I have been describing must have contributed powerfully to dissolve the more ancient tribal and family organisation. If the Chief who gave and the Ceile who accepted stock belonged to the same Tribe, the effect of the transaction was to create a relation between them, not indeed altogether unlike that of tribal connection, but still materially different from it in many respects and much more to the advantage of the chieftain. But the superior from whom a man took stock was not always the Chief of his own Sept or Tribe. So far as the Brehon law can be said to show any favour to the new system of vassalage, it encourages it between natural chief and natural tribesman; and, on the other hand, it puts difficulties in its way when there is an attempt to establish it between a tribesman and a strange Chief. But there seem to be abundant admissions that freemen did occasionally commend themselves in this way to superiors other than their Chiefs. Every nobleman, as I said before, is assumed to be as a rule rich in cattle, and it appears to have been an object with everyone to disperse his herds by the practice of giving stock. The enriched peasant who was on his way to be ennobled, the Bo-Aire, seems to have had Ceiles who accepted stock from him, as well as had the nobles higher in degree. Accordingly, the new groups formed of the Lord and his Vassals—if we may somewhat antedate these last words—were sometimes wholly distinct from the old groups composed of the Chief and his Clan. Nor, again, was the new relation confined to Aires, or noblemen, and Ceiles, or free but non-noble tribesmen. The Bo-Aire certainly, and apparently the higher Chiefs also, accepted stock on occasion from chieftains more exalted than themselves; and in the end to ‘give stock’ came to mean the same thing as to assert feudal superiority, and to ‘accept stock’ the same thing, which in the language of other societies was called ‘commendation.’ It is strong evidence of the soundness of the conclusions reached of late years by historical scholars (and, among others, by Mr. Bryce), as to the deep and wide influence exercised by the Roman Empire, even in its later form, that (of course by a fiction) the Brehon law represents the King of Ireland as ‘accepting stock’ from the Emperor. ‘When the King of Erin is without opposition’—that is, as the explanation runs, when he holds the ports of Dublin, Waterford, and Limerick, which were usually in the hands of the Danes—‘he receives stock from the King of the Romans’ (S. M., ii. 225). The commentary goes on to say that sometimes ‘it is by the successor of Patrick that the stock is given to the King of Erin;’ and this remarkable passage seems to show that an Irish writer spoke of the successor of St. Patrick, where a writer of the same approximate period in England or on the European Continent would assuredly have spoken of the Pope.
I hope it is unnecessary for me to insist on the interest which attaches to this part of the Brehon law. It has been not uncommon, upon the evidence furnished by the usages of the Scottish Highlanders, sharply to contrast Celtic tribal customs with feudal rules; and doubtless between these customs and feudalism in its perfected state there are differences of the greatest importance. Yet, if the testimony of the Brehon tracts may be trusted, such differences arose, not from essential distinctions, but, in some measure at all events, from distinctions of degree in comparative social development. The germs of feudalism lay deep in the more ancient social forms, and were ready to assert their vitality even in a country like Ireland, which, after it was once Christianised, can have borrowed next to no institutions from its neighbours, cut off as it was from the Continent by distance, and from England by stubborn national repulsion. It is also worthy of observation that this natural growth of feudalism was not, as some eminent recent writers have supposed, entirely distinct from the process by which the authority of the Chief or Lord over the Tribe or Village was extended, but rather formed part of it. While the unappropriated waste-lands were falling into his domain, the villagers or tribesmen were coming through natural agencies under his personal power.
The Irish practice of ‘giving stock’ seems to me also to connect itself with another set of phenomena which have generally been thought to belong to a very different stage of history. We obtain from the law-tracts a picture of an aristocracy of wealth in its most primitive form; and we see that the possession of this wealth gave the nobles an immense power over the non-noble freemen who had nothing but their land. Cæsar seems to me to be clearly referring to the same state of relations in the Celtic sister society, when he speaks of the Gaulish chiefs, the Equites, having one principal source of their influence in the number of their debtors. (B. G., i. 4; B. G., vi. 13.) Now, you will remember how uniformly, when our knowledge of the ancient world commences, we find plebeian classes deeply indebted to aristocratic orders. At the beginning of Athenian history we find the Athenian commonalty the bondslaves through debt of the Eupatrids; at the beginning of Roman history we find the Roman Commons in money bondage to the Patricians. The fact has been accounted for in many ways, and it has been plausibly suggested that it was the occurrence of repeated bad seasons which placed the small farmers of the Attic and Roman territory at the mercy of wealthy nobles. But the explanation is imperfect unless we keep in mind the chief lesson of these Brehon tracts, and recollect that the relative importance of Land and Capital has been altering throughout history. The general proposition that Land is limited in quantity and is distinguished by this limitation from all other commodities which are practically capable of indefinite multiplication, has always of course been abstractedly true; but, like many other principles of Political Economy, its value depends on the circumstances to which it is applied. In very ancient times land was a drug, while capital was extremely perishable, added to with the greatest difficulty, and lodged in very few hands. The proportionate importance of the two requisites of cultivation changed very slowly, and it is only quite recently that in some countries it has been well-nigh reversed. The ownership of the instruments of tillage other than the land itself was thus, in early agricultural communities, a power of the first order, and, as it may be believed that a stock of the primitive capital larger than usual was very generally obtained by plunder, we can understand that these stocks were mostly in the hands of noble classes whose occupation was war, and who at all events had a monopoly of the profits of office. The advance of capital at usurious interest, and the helpless degradation of the borrowers, were the natural results of such economical conditions. For the honour of the obscure and forgotten Brehon writers of the Cain-Saerrath and the Cain-Aigillne, let it not be forgotten that their undertaking was essentially the same as that which went far to immortalise one great Athenian legislator. By their precise and detailed statements of the proportion which is to be preserved between the stock which the Chief supplies and the returns which the tenant pays, they plainly intend to introduce certainty and equity into a naturally oppressive system. Solon, dealing with a state of society in which coined money had probably not long taken the place of something like the ‘seds’ of the Brehon law, had no expedient open to him but the debasement of the currency and the cancellation of debts; but he was attacking the same evil as the Brehon lawyers, and equally interfering with that freedom of contract which wears a very different aspect according to the condition of the society in which it prevails.
The great part played in the Brehon law by Cattle as the oldest form of Capital ought further to leave no doubt of the original objects of the system of ‘eric’-fines, or pecuniary composition for violent crime. As I said before, no Irish institution was so strongly denounced by Englishmen as this, or with so great a show of righteous indignation. As members of a wealthy community, long accustomed to a strong government, they were revolted partly by its apparent inadequacy and partly the unjust impunity which it seemed to give to the rich man and to deny to the poor. Although the English system of criminal penalties which they sought to substitute for the Irish system of compositions would nowadays be described by an ordinary writer in pretty much as dark colours as those used by Spenser and Davis for the Irish institution, it is very possible that in the sixteenth century it would have been an advantage to Ireland to have the English procedure and the English punishments. There is much evidence that the usefulness of ‘eric’-fines had died out, and that they unjustly profited the rich and powerful. But that only shows that the confusions of Ireland had kept alive beyond its time an institution which in the beginning had been a great step forwards from barbarism. If the modern writers who have spoken harshly of these pecuniary compositions had come upon a set of usages belonging to a society in which tribe was perpetually struggling with tribe, and in which life was held extraordinarily cheap, and had found that, by this customary law, the sept or family to which the perpetrator of a crime belonged forfeited a considerable portion of its lands, I am not sure that they would not have regarded the institution as showing for the age an extremely strict police. But in the infancy of society a fine on the cultivating communities, of the kind afterwards called pecuniary, was a much severer punishment than the forfeiture of land. They had plenty of land within their domains, but very slight appliances for cultivating it; and it was out of these last that compositions were paid. The system of course lost its meaning as the communities broke up and as property became unequally divided. In its day, nevertheless, it had been a great achievement, and there are traces of it everywhere, even in Roman law, where, however, it is a mere survival.
Before I quit the subject let me say something on the etymology of the famous word, Feodum, Feud, or Fief. The derivation from Emphyteusis is now altogether abandoned, and there is general, though not quite universal, agreement that Feodum is descended from one or other of the numerous family of old Teutonic terms which have their present representative in the modern German Vieh, ‘cattle.’ There is supposed to have been much the same transmutation of meaning which occurred with the analogous Latin word. Pecunia, allied to pecus, signified first money, and then property generally; the Roman lawyers, in fact, tell us that it is the most comprehensive term for all a man’s property; and in the same way ‘feodum’ is supposed to have come to mean ‘property,’ from having originally meant ‘cattle.’ The investigations we have been pursuing may perhaps, however, suggest that the connection of ‘feodum’ with cattle is closer and more direct than this theory assumes. Dr. Sullivan, I ought to add, assigns a different origin to ‘feodum’ from any hitherto put forward (Introd. p. ccxxvi.). He claims it as a Celtic word, and connects it with fuidhir, the name of a class of denizens on tribal territory whose status I am about to discuss.
The territory of every Irish tribe appears to have had settled on it, besides the Saer and Daer Ceiles, certain classes of persons whose condition was much nearer to slavery than that of the free tribesman who, by accepting stock from the Chief, had sunk lowest from his original position in the tribal society. They are called by various names, Sencleithes, Bothachs, and Fuidhirs; and the two last classes are again subdivided, like the Ceiles, into Saer and Daer Bothachs, and Saer and Daer Fuidhirs. There is evidence in the tracts, and especially in the unpublished tract called the ‘Corus Fine,’ that the servile dependants, like the freemen of the territory, had a family or tribal organisation; and indeed all fragments of a society like that of ancient Ireland take more or less the shape of the prevailing model. The position of the classes, obscurely indicated in Domesday and other ancient English records as Cotarii and Bordarii, was probably very similar to that of the Sencleithes and Bothachs; and in both cases it has been suspected that these servile orders had an origin distinct from that of the dominant race, and belonged to the older or aboriginal inhabitants of the country. Families or sub-tribes formed out of them were probably hewers of wood and drawers of water to the ruling tribe or its subdivisions. Others were certainly in a condition of special servitude to the Chief or dependence on him; and these last were either engaged in cultivating his immediate domain-land and herding his cattle, or were planted by him in separate settlements on the waste land of the tribe. The rent or service which they paid to him for the use of this land was apparently determinable solely by the pleasure of the Chief.
Much the most important, and much the most interesting of these classes from the historical point of view, was that just described as settled by the Chief on the unappropriated tribal lands. Indeed, it has been suggested that its fortunes are identical with those of the great bulk of the Irish people. It consisted of the Fuidhirs, the strangers or fugitives from other territories, men, in fact, who had broken the original tribal bond which gave them a place in the community, and who had to obtain another as best they might in a new tribe and a new place. The Brehon law shows by abundant evidence that the class must have been a numerous one. The desertion of their lands by families or portions of families is repeatedly spoken of. Under certain circumstances, indeed, the rupture of the tribal bond and the flight of those who break it are eventualities distinctly contemplated by the law. In the Brehon law, as in other ancient juridical systems, the corporate responsibility of tribes, sub-tribes, and families takes the place of that responsibility for crime, and even to some extent of civil obligation, which, under modern institutions, presses upon the individual. But the responsibility might be prevented from attaching by compelling or inducing a member of the group, habitually violent or vowed to revenge, to withdraw from its circle; and the Book of Aicill gives the legal procedure which is to be observed in the expulsion, the tribe paying certain fines to the Chief and the Church and proclaiming the fugitive. Such provisions assume a certain order in the society to which they apply; yet we know as a fact that for many centuries it was violently disordered. The result was probably to fill the country with ‘broken men,’ and such men could only find a home and protection by becoming Fuidhir tenants. Everything, in short, which tended to disturb the Ireland of the Brehon laws tended to multiply this particular class.
Now, the Fuidhir tenant was exclusively a dependant of the Chief, and was through him alone connected with the Tribe. The responsibility for crime, which in the natural state of Irish society attached to the Family or Tribe, attached, in the case of the Fuidhir, to the Chief, who in fact became to this class of tenants that which their original tribesmen or kindred had been. Moreover, the land which they cultivated in their place of refuge was not theirs but his. They were the first ‘tenants at will’ known to Ireland, and there is no doubt that they were always theoretically rackrentable. The ‘three rents,’ says the Senchus Mor, are the ‘rackrent from a person of a strange tribe, a fair rent from one of the tribe, and the stipulated rent which is paid equally by the tribe and the strange tribe.’ The ‘person from a strange tribe’ is undoubtedly the Fuidhir; and though the Irish expression translated ‘rackrent’ cannot, of course, in the ancient state of relation between population and land, denote an extreme competition rent, it certainly indicates an extreme rent; since in one of the glosses it is graphically compared to the milk of a cow which is compelled to give milk every month to the end of the year. At the same time there is no reason to suppose that, in the first instance, the Fuidhir tenants were oppressively treated by the Chiefs. The Chief had a strong interest in encouraging them; ‘he brings in Fuidhirs,’ says one of the tracts, ‘to increase his wealth.’ The interests really injured were those of the Tribe, which may have become stronger for defence or attack by the addition to the population of the territory, but which certainly suffered as a body of joint proprietors by the curtailment of the waste land available for pasture. The process before described by which the status of the tribesmen declined proportionately to the growth of the Chiefs’ powers, must have been indirectly hastened in several ways by the introduction of Fuidhirs. Such indications of the course of change as the Brehon laws furnish are curiously in harmony with a passage from a work recently published, which, amid much other valuable matter, gives a most vivid picture of agricultural life in the backward Indian province of Orissa. Mr. Hunter, the writer, is speaking of the relation of landlord and tenant; but as the ‘hereditary peasantry’ referred to have, as against their landlord, rights defined by law, they are not without analogy to the tribesmen of an ancient Irish territory. ‘The migratory husbandman,’ the Fuidhir of modern India, ‘not only lost his hereditary position in his own village, but he was an object of dislike and suspicion among the new community into which he thrust himself. For every accession of cultivators tended to better the position of the landlord, and pro tanto to injure that of the (older) cultivators. So long as the land on an estate continued to be twice as much as the hereditary peasantry could till, the resident husbandmen were of too much importance to be bullied or squeezed into discontent. But once a large body of immigrant cultivators had grown up, this primitive check on the landlords’ exactions was removed. The migratory tenants, therefore, not only lost their position in their old villages, but they were harassed in their new settlements. Worse than all, they were to a certain extent confounded with the landless low castes who, destitute of the local connections so keenly prized in rural society as the evidences of respectability, wandered about as hired labourers and temporary cultivators of surplus village lands.’ (Hunter, ‘Orissa,’ i. 57, 58.)
You will perhaps have divined the ground of the special attention which has been claimed for these Fuidhir tenants, and will be prepared to hear that their peculiar status has been supposed to have a bearing on those agrarian difficulties which have recurred with almost mysterious frequency in the history of Ireland. It is certainly a striking circumstance that in the far distance of Irish tradition we come upon conflicts between rent-paying and rent-receiving tribes—that, at the first moment when our information respecting Ireland becomes full and trustworthy, our informants dwell with indignant emphasis on the ‘racking’ of tenants by the Irish Chiefs—and that the relation of Irish landlord and Irish tenant, after being recognised ever since the beginning of the century as a social difficulty of the first magnitude, finally became a political difficulty, which was settled only the other day. I do not say that there is not a thread of connection between these stages of Irish agrarian history, but there are two opposite errors into which we may be betrayed if we assume the thread to have been uniform throughout. In the first place, we may be tempted to antedate the influence of those economical laws which latterly had such powerful operation in Ireland until their energy was well-nigh spent through the consequences of the great famine of 1845-6. An overflowing population and a limited area of cultivable land had much to do, and probably more than anything else to do, with the condition of Ireland during that period; but neither the one nor the other was a characteristic of the country at the end of the sixteenth century. Next, we may perhaps be inclined, as some writers of great merit seem to me to be, to post-date the social changes which caused so large a portion of the soil of Ireland to be placed under the uncontrolled Law of the Market, or, to adopt the ordinary phraseology, which multiplied ‘tenants at will’ to an unusual extent. Doubtless, if we had to found an opinion as to these causes exclusively on ancient Irish law, and on modern English real property law, we should perhaps come to the conclusion that an archaic system, barely recognising absolute ownership, had been violently and unnaturally replaced by a system of far more modern stamp based upon absolute property in land. But, by the end of the sixteenth century, our evidence is that the Chiefs had already so much power over their tenants that any addition to it is scarcely conceivable. ‘The Lords of land,’ says Edmund Spenser, writing not later than 1596, ‘do not there use to set out their land to farme, for tearme of years, to their tenants, but only from yeare to yeare, or during pleasure, neither indeed will the Irish tenant or husbandman otherwise take his land than so long as he list himselfe. The reason thereof in the tenant is, for that the landlords there use most shamefully to racke their tenants, laying upon them coin and livery at pleasure, and exacting of them besides his covenants what he pleaseth. So that the poore husbandman either dare not binde himselfe to him for longer tearme, or thinketh, by his continuall liberty of change, to keepe his landlord the rather in awe from wronging of him. And the reason why the landlord will no longer covenant with him is, for that he dayly looketh after change and alteration, and hovereth in expectation of new worlds.’ Sir John Davis, writing rather before 1613, used still stronger language: ‘The Lord is an absolute Tyrant and the Tennant a very slave and villain, and in one respect more miserable than Bond Slaves. For commonly the Bond Slave is fed by his Lord, but here the Lord is fed by his Bond Slave.’
here is very little in common between the miserable position of the Irish tenant here described and the footing of even the baser sort of Ceiles, or villeins, who had taken stock from the Chief. If the Brehon law is to be trusted, the Daer Ceile was to be commiserated, rather because he had derogated from his rights as a free tribesman of the same blood with the Chief, than because he had exposed himself to unbridled oppression. Besides paying dues more of the nature of modern rent, he certainly stood under that unfortunate liability of supplying periodical refection for his Chief and his followers. But not only was the amount of his dues settled by the law, but the very size of the joints and the quality of the ale with which he regaled his Chief were minutely and expressly regulated. And, if one provision of the law is clearer than another, it is that the normal period of the relation of tenancy or vassalage was not one year, but seven years. How, then, are we to explain this discrepancy? Is the explanation that the Brehon theory never in reality quite corresponded with the facts? It may be so to some extent, but the careful student of the Brehon tracts will be inclined to think that the general bias of their writers was rather towards exaggeration of the privileges of Chiefs than towards overstatement of the immunities of tribesmen. Is it, on the other hand, likely that, as some patriotic Irishmen have asserted, Spenser and Davis were under the influence of English prejudice, and grossly misrepresented the facts of Irish life in their day? Plenty of prejudice of a certain kind is disclosed by their writings, and I doubt not that they were capable of occasionally misunderstanding what they saw. Nothing, however, which they have written suggests that they were likely wilfully to misdescribe facts open to their observation. I can quite conceive that some things in the relations of the Chiefs and tenants escaped them, possibly a good deal of freely-given loyalty on one side, and of kindliness and good-humoured joviality on the other. But that the Irish Chief had in their day the power or right which they attribute to him cannot seriously be questioned.
The power of the Irish Chiefs and their severity to their tenants in the sixteenth century being admitted, they have been accounted for, as I before stated, by supposing that the Norman nobles who became gradually clothed with Irish chieftainships—the Fitzgeralds, the Burkes, and the Barrys—abused an authority which in native hands would have been subject to natural limitations, and thus set an evil example to all the Chiefs of Ireland. The explanation has not the antecedent improbability which it might seem to have at first sight, but I am not aware that there is positive evidence to sustain it. I owe a far more plausible theory of the cause of change to Dr. Sullivan, who, in his Introduction (p. cxxvi), has suggested that it was determined by the steady multiplication of Fuidhir tenants. It must be recollected that this class of persons would not be protected by the primitive or natural institutions springing out of community of blood. The Fuidhir was not a tribesman but an alien. In all societies cemented together by kinship the position of the person who has lost or broken the bond of union is always extraordinarily miserable. He has not only lost his natural place in them, but they have no room for him anywhere else. The wretchedness of the outcast in India, understood as the man who has lost or been expelled from caste, does not arise from his having been degraded from a higher to a lower social standing, but from his having no standing whatever, there being no other order of society open to receive him when he has descended from his own. It was true that the Fuidhir, though he had lost the manifold protection of his family and tribe, was not actually exposed to violent wrong. From that he was protected by the new Chief to whom he had attached himself, but between him and this Chief there was nothing. The principle would always be that he was at the mercy of the Chief. At the utmost, some usages favourable to him might establish themselves through lapse of time, but they would have none of the obligatory force belonging to the rules which defined the rights of the Chief in respect of his Saer-stock and Daer-stock tenants. We can see that several of the duties corresponding to these rights were of a kind to invite abuse; much more certainly would obligations analogous to them, but wholly imposed by the pleasure of the Chief, become cruelly oppressive. The ‘refections’ of the Brehon law would, by a miserable degradation, become (to borrow the language of Spenser and Davis) coin and livery, cuttings, cosherings, and spendings, in the case of the Fuidhirs. Meanwhile there were causes at work, powerfully and for long periods of time, to increase the numbers of this class. Even those Irishmen who believe that in the distant past there was once a tolerably well-ordered Ireland admit that for many centuries their country was racked with perpetual disturbance. Danish piracies, intestine feuds, Anglo-Norman attempts at conquest never consistently carried out or thoroughly completed, the very existence of the Pale, and above all the policy directed from it of playing off against one another the Chiefs beyond its borders, are allowed by all to have distracted the island with civil war, however the responsibility for it is to be apportioned. But the process is one which must have broken up tribes far and wide, and broken tribes imply a multitude of broken men. Even in brief intervals of peace the violent habits produced by constant disorder would bring about the frequent expulsion by families of members for whom they refused to remain responsible, and in the commoner eventuality of war whole fragments would be from time to time torn away from tribes and their atoms scattered in every part of Ireland. It is, therefore, a conjecture possessing a very high degree of plausibility, that the tenantry of the Irish Chiefs whose sufferings provoked the indignation of Spenser and Davis consisted largely of Fuidhirs.
The explanation may, however, be carried beyond this point. You will bear in mind the passage quoted by me from Hunter’s ‘Orissa,’ which shows how a tenantry enjoying hereditary rights is injured, even under a Government which sternly compels peace and order, by a large immigration of cultivators dependent on the landlord or Zemindar. They narrow the available waste land by their appropriations; and, though they do not compete directly for the anciently cultivated land with the tenants enjoying hereditary rights, they greatly raise in the long run the standard of rent, at the same time that they arm the landlord with those powers of exacting it which in ancient Ireland consisted in the strong hand of the Chief himself, and which consist, in modern India, in the money which puts in motion the arm of the law. I have no doubt whatever that a great multiplication of Fuidhir tenants would always seriously alter for the worse the position of the tenants by Saer-stock and Dear-stock tenure.